Guest Author: Adrian Card, Boulder County Extension Agent. This article originally appeared in the Boulder Daily Camera.
As farmers prepare for the 2022 crop production season, new regulations from Senate Bill 21-087 (Ag Workers’ Rights) will be in effect for the 2022 growing season.
Those include limitations to hand weeding and thinning, capped at 20% of weekly hours worked, primarily applicable to workers on vegetable farms. Employers can apply to the Colorado Department of Agriculture for a variance to exceed this cap.
Additional rules promulgated from the Colorado Department of Labor and Employment in fall 2021 to prevent heat-related illness among farmworkers will require specific break periods to include rest, water provided by the employer, and shade when the air temperate reads or is forecasted to exceed 80 degrees Fahrenheit.
During “increased risk conditions” — when the daily high temperature is 95 degrees or higher, or unhealthy air quality index exists, or more than 12 hours worked in a day, or heavy clothing is worn, or the worker has less than five days on the job (acclimatization) — employers shall provide breaks with rest, shade and water of at least 10 minutes every two hours. Employers are required to provide annual training on these topics.
Both are clearly in the interest of worker health, and while many employers view regulations with disdain, they are aware that protecting worker health is always in the best interest of farm business goals. Additional tracking when breaks should happen and providing employee drinking and shade are doable with planning.
Beginning in 2023, all ag employers will face something new: a requirement for overtime pay to workers, dramatically impacting farms and ranches.
CDLE promulgated a phase-in of overtime pay starting in 2023 (COMPS order No. 38) when all farms and ranches will be faced with time-and-a-half pay at all hours worked above 60 in a workweek. The Colorado Fruit and Vegetable Growers Association was a key influencer moving CDLE to add a category of “highly seasonal employers” to the COMPS No.38.
Starting in 2024, ag employers with a workforce that doubles in a 22-week period (which can be broken into blocks of four weeks and up to three periods in a calendar year) will be subject to a 56-hour cap on regular time pay. Highly seasonal employers must disclose to employees at the start of the employment period, and 30 days before “highly seasonal” is in play, which weeks will be at the 56-hour overtime trigger.
Employers can change these periods with at least one week’s written notice. Outside these “highly seasonal” 22 weeks, overtime is triggered when more than 48 hours are worked in a week. “Small employers” with fewer than four workers are also eligible for the 56 hours trigger. Employers in either category will see a 54-hour trigger in 2024 and a 48-hour trigger in 2025.
Most U.S. employers choose to not pay overtime, and thus the likely outcome of the overtime rule is an overall reduction in farm worker pay, as noted by the Colorado State University Food Systems policy brief.
While employees may lose out on earnings, employers are concerned that ag jobs will become even less desirable, especially in a hot job market. This becomes most acute for ag employers who cannot find local workers and thus resort to using the H-2A temporary foreign ag worker program.
These workers are recruited from countries all over the world, motivated to earn U.S. dollars and return home with that income. Anecdotal data from both H-2A employers and workers reflects what seems obvious when a worker chooses to leave home and travel to another country to do a hard job; maximum income is the primary motivator.
Those anecdotes also show a concern that Colorado may no longer be competitive for recruiting H-2A workers if their hours will be capped at 56 per week. This presents a potential threat to the Colorado produce sector.
Questions about what these regulations mean for you? Contact your local Extension office to talk with an expert.