Rulemaking process for ag labor law in full swing
With Gov. Jared Polis’ signature on SB21-087, the Farm Worker’s Bill of Rights, the rulemaking process has begun ahead of the law taking full effect in January of 2022.
The two rulemaking agencies for SB21-087, the Colorado Department of Labor and Employment and the Colorado Department of Agriculture are planning joint meetings in Spanish, and possibly other languages, to hear input from ag workers. They’re currently working with stakeholders to determine meeting details and the best methods for driving attendance. The meetings are planned for September.
The hand weeding and hand thinning rules have fallen under the rulemaking process for the CDA and the first stakeholder meeting was July 22, a second on Aug. 12, and one remaining on Aug. 26.
Alisha Knapp, the Colorado Fruit and Vegetable Growers Association treasurer and a produce grower from Rocky Ford, Colo., told KSIR farm director Lorrie Boyer the group has been actively working on the bill since it was introduced in March. Knapp said the CFVGA and its members have been in discussions with the CDA, Gov. Polis’ office, and directly with Commissioner Kate Greenberg. She said the state’s agriculture group coalition has also been working to determine guidance that is best for all of the stakeholders involved, especially in the wake of the groups not having input prior to the bill’s introduction by sponsor Sen. Jessie Danielson, D- Wheat Ridge.
“As we’ve seen in California, when overtime provision is triggered at 40 hours, a lot of small producers can’t afford the extra overtime so they limit employees to 40 hours and hire more employees so it ends up hurting the employees as well because many of those employees are trying to make as much money as they possibly can in that short season,” she said. “If they’re limited to 40 hours rather than 60 to 80, their paycheck is reduced by half.”
Bruce Talbott, a peach grower in Palisade, said his workers have been clear in opposing a cap in their hours. His labor force in the field is comprised of H2-A workers from other countries who come here, without their families, with the goal of making as much as possible before returning home. Talbott said the harvest crews are currently averaging 75 hours per week and a cap would reduce their earnings and require more employees and additional housing. He said the majority of the labor in the packing sheds is local, and he’s had a particularly difficult time enticing workers to give up bolstered unemployment benefits to come to work. West Slope growers are currently harvesting but are also faced with interstate closures, a shortage of trucks, and high diesel prices, complicating shipment of produce to the Front Range.
Knapp said another trend seen in California agriculture and other businesses is companies departing states with burdensome regulations to relocate to other states or countries.
According to CFVGA, the law currently allows conventional producers up to 20% of employees’ time worked in a week as hand weeding or hand thinning (definition of “occasional or intermittent”); hand thinning of high-density plants spaced less than 2 inches apart when planted; hand weeding, thinning, or tending to any ag or horticultural commodities when they are seedlings; hand weeding, thinning, or tending to any ag or horticultural commodities grown in tubs or planters with an opening that does not exceed 15 inches in width; seeding, planting, transplanting, or harvesting by hand or with a hand tool; and weeding, thinning or tending the soil-exposed area immediately surrounding agricultural or horticultural commodities on plastic mulch. National Organic Program certified farms are currently exempted. The public comment period for all labor-related rulemaking in the bill is currently open.
The overtime, break, heat illness, injury, and service provider rules all were assigned to the CDLE and stakeholder meetings are scheduled for Aug. 17 to review labor conditions rules for agriculture: new rules on heat illness/injury, and workers’ service provider and visitor access. The second meeting will be Aug. 24 to review new wage-and-hour rules for agriculture: amendments to the COMPS Order (described above) on overtime pay, minimum wages, and breaks. A final meeting will be Aug. 31 to review possible amendments to other (i.e., not agriculture-specific) existing rules, including but not limited to wage and hour rules in the COMPS Order and in the Wage Protection Rules. In contrast to the significant rewrite of Colorado decades-old labor rules that DLSS adopted in March 2020, this year’s rulemaking will likely be a substantively narrower effort at (A) streamlined implementation of the non-discretionary, legally required annual inflation-updating of the Colorado minimum wage and other wage figures in labor rules, and (B) considering any targeted changes suggested by stakeholders or otherwise warranted by developments since prior rulemakings.
As the rulemaking process continues, the CDA has also announced the position of an agriculture worker program manager to oversee the SB21-087 hand weeding variance program. The new hire would also serve as CDA’s representative on worker issues. CFVGA is urging qualified individuals to apply to ensure a well-versed pool of applicants. CDA will allow the possibility of remote work for this position. Applications for the position are due by Aug. 25.
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