Farmworker advocates, industry groups sharply divided on labor standards

Men dressed in jeans and hoodies line the rows of a bus while someone asks them questions in Spanish and films their answers.

“Do you like working long hours?” the person asks, in Spanish. “Yes,” the farmworkers say back.

When asked what they would do if they could only work at the vegetable farm for 40 or 45 hours a week, one man replies, “We cannot rest. We only have four, five, six months, and we have to take advantage of them for our families in Mexico … We are not interested in being paid overtime.”

This video was submitted Tuesday as a public comment on the state’s forthcoming new overtime rules by Joe Petrocco, the vice president of Petrocco Farms. It alludes to a central argument being made by Colorado agricultural employers in the debate over whether to require that employers pay their workers extra for overtime. Employers including Petrocco have said that agriculture, especially seasonal work, requires a workweek of 70 hours or more. They say they wouldn’t be able to afford paying their workers extra for 30 hours of overtime, and would have to hire more people instead — meaning some workers would make far less money than they’re used to.

Groups that advocate for agricultural workers around the state say that they deserve the same treatment as people in other jobs who are paid by the hour, and want overtime to kick in at 40 hours. They point out that the state’s migrant and seasonal workers — who were only recently granted certain whistleblower protections under a new state law — are vulnerable to intimidation by their employers.

Workers themselves have a range of opinions, said Scott Moss, director of the Colorado Division of Labor Standards and Statistics.

“The subset of workers where we’re hearing sentiment in favor of wanting as many as 60 hours a week or even more are the temporary seasonal visa workers, because they come here for just a couple months to work hard and then go back home out of the country,” Moss said, “in contrast to year-round or even Colorado seasonal workers, who more often try to strike work-life balance like the rest of us.”

“But even within each of those groups,” he added, “individuals vary, and we respect that.”

Colorado’s labor standards division released proposed wage and overtime rules Thursday. The proposed rules, which put in place a range of agricultural overtime standards depending on the employer size and whether the job is seasonal, are likely to encounter pushback from both worker advocates and industry groups.

For the first year the proposed rules would be in effect — from Nov. 1, 2022, through Dec. 31, 2023 — all agricultural employers would be subject to the same overtime pay standards. They would have to pay their employees time-and-a-half for any more than 60 hours worked in a single week.

Starting in 2024, small agricultural employers with fewer than four workers would have to start paying overtime after 56 hours. Highly seasonal employers — defined as those who for 22 weeks a year have twice as many employees as the rest of the year — would be required to pay overtime after 56 hours during peak seasons, or 48 hours otherwise. All other agricultural employers would have to pay overtime after 54 hours in 2024, and after 48 hours in 2025.

Ag businesses ask for exemption from overtime

Changes to overtime pay for agricultural workers, who have long been exempted from such requirements, were mandated under a new state law. Democratic Sens. Jessie Danielson of Wheat Ridge and Dominick Moreno of Commerce City, along with Democratic Reps. Karen McCormick of Longmont and Yadira Caraveo of Thornton, sponsored Senate Bill 21-87, which Gov. Jared Polis signed into law in June.

Besides directing the Colorado Department of Labor and Employment to set overtime pay standards for agriculture and implementing whistleblower protections, SB-87 allows agricultural workers to engage in collective bargaining. It also requires agricultural employers to pay their workers the state minimum wage. Colorado’s minimum wage is expected to increase to from $12.32 to $12.56 per hour in 2022, Moss said. Temporary workers on seasonal H-2A visas must be paid at least $14.82 per hour.

Another rulemaking process required by SB-87 will determine when and how workers can use the short-handled hoe, a hand-weeding tool that has been banned in several other states because of the chronic health problems to which it is linked.

Project Protect Food System Workers, a coalition of advocates and public health organizations from agricultural communities around the state, collected data on agricultural workers in a 2020 report. The report estimated that in 2020, Colorado’s agricultural sector employed roughly 1,600 temporary visa workers; 2,000 migrant workers, who weren’t on visas and lived on a job site for part of the year; and 1,600 seasonal workers who didn’t need to live on the job site. Those numbers don’t include year-round workers or people employed by the meatpacking industry.

Certain parts of the state and sectors of agriculture have more migrant, seasonal or temporary visa workers than others. For example, the fruit and vegetable sector tends to employ the most temporary visa workers, according to Moss.

Project Protect, which was also the coalition behind SB-87, is pushing for overtime pay to kick in at 40 hours per week, 12 hours per day or 12 consecutive hours.

“Low wages, wage theft, unpaid overtime, and no enforceable minimum wage means that vulnerable agricultural workers (struggle) to support themselves while providing essential work in Colorado’s food system,” the group wrote in a 26-page report submitted as a public comment. “These workers are also less able to spend money and build prosperity in rural Colorado economies.”

But associations representing agricultural businesses say they need exemption from overtime to keep their industry viable.

“While sugarbeet work is seasonal, there are weeks during which farmers and their workers need to put in 60 or more hours in order to meet the tight timeline demands of planting and harvesting,” Alvin Whitman Jr., president of the Colorado Sugarbeet Growers Association, wrote in a written comment. “With the thin margins involved in commodity crop farming, requiring overtime pay below that threshold would likely not be sustainable for our family farmers. It could necessitate the potential cutting of hours for established farm workers and create a shortage of experienced labor for the growers.”

Hunter Knapp, development director with Project Protect, is skeptical about the argument that employers would cut hours and hire more people rather than pay overtime.

Employers must pay for transportation, housing and food for each added employee they hire, Knapp pointed out, arguing that hiring new people “just kind of undermines any savings that they would make by not paying overtime” for the amount of people they usually hire.

“A lot of these employers are saying that they struggle to find workers to meet the demands of their labor force as is,” Knapp added, “so the idea that they would increase the size by 30% or even 50% is, it’s just not realistic.”

The labor standards division will hold a public hearing Nov. 1 on the proposed rules, where people can participate in person, online or by phone. Information about the rulemaking process is available on the Colorado Department of Labor and Employment’s website.