Gov. Jared Polis signed SB25-128 Agricultural Worker Service Providers Access Private Property, into law May 29 at Marc Arnusch Farms near Prospect Valley, Colo. It repealed provisions that prohibited an agricultural employer from interfering with an employee’s access to service providers on private property granted in 2021 as part of SB21-087, known as the Farmworker Bill of Rights. The provision granted the right, Arnusch said, to trespass.
Arnusch said the state’s agriculture groups fought the provision, and others he said remain troubling, but “a certain side of the aisle wasn’t listening.” Once passed, Colorado Farm Bureau recognized that unencumbered access to private property was a liability for landowners and dangerous for the service providers entering the farms. Litigation followed. Arnusch, Palisade peach grower Bruce Talbott, and the Rock family from Wray, Colo., signed onto a suit, suing the governor’s office and claiming the provision was unconstitutional.
“As time drug on, the lawsuit really became bogged down to the point where a judge still hasn’t ruled on it and he’s not given any indication which way he would rule on it,” Arnusch said.
He said he was thrilled with Sen. Byron Pelton’s, R-Sterling, willingness to run the bill to remedy the provision.
“Where I was really impressed with the leadership on this bill was how the collective group, both Republicans and Democrats, looked back and said, ‘you know what? We got this wrong the first time’ and that’s a testament to staying on this issue,” he said. “This is a big issue for agriculture, and it should be a big issue for anybody who owns private property. Anybody could have come on private property under the auspice of a key service provider, because that definition in my opinion is pretty broad and could be abused.”
Marc Arnusch speaks about the repeal of the access provision passed in a 2021 law before Gov. Jared Polis signed SB25-128 into law. The bill was sponsored by Sen. Byron Pelton, right.IMG_4346
MONUMENTAL SIGNING
He said the signing of the bill and the signing on his farm are both monumental.
“It was full circle,” he said. “It was a collective group of farmers that stood up and said we don’t agree with this, took legal action, who then signaled the state legislature to go back and get this visited and see if we can get this rectified. And it culminated here today with the governor’s signature.”
The portion of the 2021 bill, sponsored by Sen. Jessie Danielson, D-Wheat Ridge, and Rep. Karen McCormick, D-Longmont, that allowed service providers nearly unfettered access to employees during working hours was remedied in the wake of the U.S. Supreme Court decision Cedar Point v Hassid. In Cedar Point v Hassid, union activists entered California’s Cedar Point Nursery where workers were tending to strawberry plants in 2015. According to the Pacific Legal Foundation, the activists, shouting into bullhorns, pressured farm workers to join the United Farm Workers union. The farm owner didn’t grant permission to the union to enter and was unaware of their plans to do so. However, he was legally unable to tell them to leave because of a California law that allows union activists to enter private property to recruit members.
Pelton said Rep. McCormick was presented with the bill and the opportunity to remedy the provision and said she was willing to recognize the problem with the original bill, as reflected in the Supreme Court decision, and worked hard to pass the fix as a co-prime sponsor in the House.
“She recognized there were some problems with that bill, and this was one of them and she was willing to fix it,” Pelton said.
OTHER ISSUES
Despite the significance of this repeal, Arnusch and Pelton said there are still issues that need to be addressed.
“The next step we have to tackle in future legislative sessions is this provision relating to overtime,” Arnusch said. “I know within my farming operation, understanding the rules and regulations relative to this overtime provision is difficult, it’s unclear, it’s confusing, and it’s driving a lot of anger within our team members.”
The voice of those team members — ag employees — was the voice he said was left out of the conversation in 2021. Arnusch said significant amounts of dollars have been taken out of the pockets of ag employees as a result of the overtime rule. Compliance, he said, is difficult as different tasks are categorized differently even for salaried employees.
“It’s not workable, it’s not feasible, it’s driving talented workers out of the Colorado marketplace, and it’s causing disruptions,” Arnusch said.
An example Arnusch offered was that of custom harvest crews who he said have chosen to harvest crops in surrounding states, intentionally avoiding Colorado to avoid the arduous process of complying with the state’s rules.
“Eventually, that’s going to cause a farmer to lose a crop because a custom harvester is not here,” he said.
In the dairy industry, he said employees are crossing state lines to nearby dairy operations in Wyoming or Nebraska to make more money for their family. Arnusch said similar examples abound in row crop, livestock, fruit and vegetable, and other agriculture operations around the state and it is time to repeal the overtime rule that he called heinous.
“It’s going to take leadership like Sen. Pelton and like some of those on the other side of the aisle to look at this and recognize there are other aspects of this bill back in 2021 that we got wrong,” he said. “And then they need to do the right thing and fix it.”
Pelton said in his district, employees at dairies have told him that they’re tired of their hours being cut and they’re unable to live in Colorado right now with all the cost of living increases that have come from decisions at the capitol with reduced hours. Some employees, he said, are seeking out additional jobs to provide additional income.
Arnusch said the problem doesn’t stem from employers’ unwillingness to pay overtime, but their inability. In many cases, work that normally would have been done by employees falls to the sole proprietor, taking time and attention away from other tasks and the civic activities within small communities.
“I’ve never once had a farm employee, a farmworker, a team member come to me and say they need to be paid overtime because the people we bring onto our farms and our ranches and our operations are just like us,” he said. “We do the job until the job is done and this legislation is in the way of doing that.”
Arnusch said the bill is an example of what good government does.
“When they recognize that something is wrong, or something has happened that can be fixed, it happened,” he said. “There were a lot of people around the table, around the process that ensued, and at the end of the day our government isn’t bad as you think because we got this one right.”
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