As Coloradans enjoy roasted Pueblo chiles, Palisade peaches the sweetest of sweet corn, Rocky Ford melons and other unbranded yet delicious and fresh Colorado produce, they need to know that the bounty could be coming to an end.
Senate Bill 21-087, Agricultural Workers’ Rights, which passed the Colorado General Assembly and was signed into law by Gov. Jared Polis this spring, will bring sweeping changes to Colorado agriculture. While the bill has many provisions, the one most likely to drive produce growers out of business is the call for employee overtime pay after 40 hours per week.
“It is yet to be determined as to what the full impact of the overtime provisions enacted in other states will be though early anecdotal evidence is that farm workers in California have been disappointed in seeing their incomes reduced with the new rules,” said Bruce Talbott, president, Colorado Fruit & Vegetable Growers Association and co-owner of his family’s Western Slope fruit operation Talbott’s Mountain Gold.
Growers appreciate the importance of compensating employees well but say that agriculture is like no other industry and that the conditions faced by Colorado agriculture are different from other states where overtime provisions have been enacted.
“Colorado agriculture is very different from states like California,” said Dave Petrocco Sr., Petrocco Farms, Brighton. “We have one short season to raise a crop. A single hailstorm, flooding or high winds, and the crop is gone.”
Petrocco explains that California, which is facing similar overtime restrictions, is different from Colorado in that it has three to four seasons to raise a crop and has much more reliable weather. In addition, the size of California’s farms makes high dollar mechanization more feasible. He also notes that despite these advantages, new regulations, including overtime provisions, have driven 10,000 California farms from the state over the last decade.
According to Talbott, not only is the proposed overtime pay restriction likely to drive farmers out of the produce business, it also will cause great damage to ag employees.
“My non-management employees are accustomed to making upwards of $4,500 per month during peak season, whereas their paychecks would be cut to $2,550, 57% of what they would receive if I have to restrict them to 40 hours per week,” said Talbott. “Both my seasonal and year-round employees have told me they cannot handle this cut in pay.”
Another aspect of agriculture that legislators failed to grasp in enacting this bill, say growers, is that farmers do not set the prices for their products. Other than a very small percentage of product that is sold directly to the consumer through farmers markets or Community Supported Agriculture programs, growers are offered take-it-or-leave-prices from wholesalers at the time of harvest for their highly perishable produce.
“Unlike other industries who are able to tack on increased input costs to their goods or services, farmers cannot do this,” said Glenn Hirakata, Hirakata Farms, Rocky Ford.
“Produce growers of all sizes and types of production will be impacted,” said Marilyn Bay Drake, CFVGA executive director. “A smaller organic farm owner told me her employees, all local, work about 2,000 hours a year, which is an average of 40 hours per week, but employees may work up to 72 hours per week during certain weeks in the spring and summer and far less than 40 hours per week in the off-season. All growers are concerned that if overtime requirements are too restrictive, they cannot find the labor they need, even if they can afford to pay the overtime.”
According to Talbott: “The narrative being spun by some farm worker advocates concerning abuses by farmers often uses anecdotal evidence from many years ago and often from other parts of the country. There are always bad apples amongst employers, however most of the abuses presented have been illegal for many years.”
The intention of bill sponsors was for farmers to pay time and a half for all hours worked over 40 hours per week, but specific overtime provision rulemaking has been delegated to the Colorado Department of Labor & Employment.
“We hope CDLE will consider the seasonality and unpredictability of weather and other growing conditions and give Colorado growers higher thresholds before overtime kicks in during peak season,” said Talbott. “Ag employees need to be able to work up to 72 hours a week during peak season.”
