The farm workers’ due

New labor rights bill aims to end exploitation on Colorado farms. But will it devastate local ag?

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Will Brendza

At some farming operations in Colorado, agricultural workers are reporting disturbing working conditions. Workers say they’re denied access to health care services during emergencies; they’re unable to leave their employer-provided housing for fear of being fired; they aren’t provided water or shade, even under the blistering sunshine working upwards of 12 hours a day. They are the targets of racism and wage theft, and they work in barely livable conditions.

And recently passed legislation in Colorado — SB 87, for ‘Agricultural Workers Rights’ — is intended to put a stop to it, to end the exploitation of farmworkers in this state. 

However, at Black Cat Farm in Longmont, there aren’t any signs of that kind of abuse. The small, organic farmstead is family-operated, serving fresh-to-table dinners overlooking the very fields where the food is grown and where Black Cat’s laborers work. 

“When we bought this farm, it was so run down it was deemed ‘uninhabitable’ by the County,” owner Eric Skokan says. “But that was the only way we could afford it. So, it’s been a lot of work.”

He and his wife Jill have owned Black Cat Farm for eight years, though they’ve been farming for 15 seasons, he says: raising heritage chickens, turkeys, Toulouse geese, mulefoot pigs, Tunis and Karkal sheep — and of course growing a lot of produce on their Boulder County-leased fields. 

It’s a small operation. And still, it’s one that Skokan admits he couldn’t possibly manage without a lot of help. Each season he hires about 10 local workers and between six and eight more on H2A temporary agricultural worker visas. 

Like all Colorado farmers, Skokan provides room and board, food, transportation and utilities for his H2A employees, as the federal program requires. The H2A visa program expands available farm labor by allowing U.S. farmers to hire help from places like Mexico, South Africa and South America. The Department of State issues over 200,000 H2A visas a year to connect farmers like Skokan with the workers they need. 

Still, Skokan says finding workers is a serious challenge — and not just for him but for farmers everywhere. At Black Cat, his employees work intense hours during planting and harvest; doing hard labor through what’s usually a very compressed season. Typically, Skokan’s employees are working 60 to 70 hours a week at his farm, from May to August, he explains. Which is about the average for agricultural workers in Colorado, according to Colorado State University’s Food Systems department. 

Even with the H2A program, farmers across the state are struggling to find workers. 

“The biggest issue in farming right now is that there are not enough farm workers. There just aren’t,” Skokan says. “And this rule change is going to exacerbate that. It’s going to make a bad situation worse.”

The new bill for agricultural workers’ rights is modeled after similar legislation passed in California. It passed through Colorado’s House and then the Senate on June 8, after weeks of heated debate, opposition and amendments. It’s now headed to Gov. Polis’ desk, where it is expected to be signed it into law. From there it will go to rulemaking with the Colorado Department of Labor and Employment (CDLE).

The law establishes the same worker rights that almost every other industry in Colorado already has — rights which agricultural laborers have been exempt from until now. In short: the bill removes agricultural workers’ exemption from overtime pay; removes their exemption from minimum wage laws; and their exemption from the “Labor Peace Act” allowing them to unionize; it grants ag workers meal and rest breaks throughout the week; creates protections for whistleblowers; and requires overwork and other health protections be put in place. It establishes those and several other labor rights that proponents call the “bare minimum” to which these essential workers should be entitled. 

“These are really fundamental human rights,” says Sen. Jessie Danielson, a Democrat from Wheat Ridge, who sponsored the bill. “It’s hard for me to take the argument seriously that this is such an attack on [agriculture] when we’re really talking about such basic protections.”

Still, farmers and agricultural researchers disagree. They argue that the new law doesn’t consider the nuances of the agricultural industry; that this bill will make things worse for farm workers, for farm employers and even for consumers; that the overtime provision will reduce their worker’s income by 30-40%; and that small farmers like Skokan, who are already surviving on the margins, will be pushed to a financial brink. 

“I think the end goals of this bill are admirable. And I’m right there on the detail level,” Skokan says. “But it’s hard to think of a bill that would negatively affect small family farms in a more profoundly challenging way than this one.”

Will Brendza

‘Systemic exploitation’ or a ‘few bad apples’?

During the Senate hearing on the bill, several ag workers and other witnesses to worker abuse testified about their experiences on Colorado farms. By almost any measure, the conditions they described are unsettling. 

“In the heat one day, I almost fainted,” testified Juana Armijo, of her time working on a farm in Thornton. “We worked from sunrise to sunset. Saturday and Sunday, without resting for two weeks. Carrying my own water. Using my own gasoline. And they didn’t pay in the end.”

Another farm worker from Weld County, who remained anonymous during her testimony to avoid retribution from her employer, said, “We have to avoid drinking water because they won’t let us go to the bathroom often. We have to work even if the sun is strong, [or if it’s] raining. … Many times we feel discriminated against by our appearance or simply because we don’t have papers.”

Anita Rodriguez, a health worker from Center, Colorado, described visiting farm worker housing in her area. She recalled, “As I drove down a dirt road I was horrified — I saw a fence that was probably 10 feet tall with barbed wire. It looked like a prison.”  

If the workers at that farm left without permission, Rodriguez says, they’d be fired on the spot. If they were an H2A worker that also meant losing their work visa, their employee housing, transportation and, of course, their income. 

Nicole Civita, who helped craft and advocate for SB 87, says this exploitation is the direct result of agriculture’s exemptions from workers’ rights in Colorado. Without basic protections, this labor pool is being exploited by their employers, she says. 

“It doesn’t speak well of us as a nation to think that we will call certain groups of workers essential and then treat them as wholly expendable,” she says. 

Civita is the policy director with Colorado advocacy group Project Protect Food Systems Workers and a professor at Sterling College in Vermont where she studies and teaches food systems. From her vantage point, this bill is about workers’ rights — but it’s also about addressing a much deeper problem. 

“This is another place where we see structural racism embedded into our laws, creating structures that systematically disadvantage certain groups of people,” Civita says. According to her, the reason agricultural workers have been systematically excluded from labor rights in this country goes back to the foundation of agriculture in the U.S. 

“This is a form of structural racism that has served to exploit and oppress first black Americans and then second, many waves of immigrants,” Civita says. “These low wages, the terrible conditions, they get justified because they say, ‘Well, people will come to do this because it’s better than what they can do in their home country’ — I don’t view that as an excuse to exempt them from basic human rights.”

However, Skokan and others working in Colorado’s agriculture industry assert that they’ve never seen the kind of abuse those farm workers testified about. They say they felt vilified by the legislation; that it framed all farmers as abusers and their workers all as victims — when in fact, the situation on the ground at their farms is very different. 

“Our staff comes back year after year after year. Our relationship with our staff is very much a partnership,” Skokan says. “I know that the vilification wasn’t pointed at us, but we were being swept up in it.”

Bruce Talbott agrees. He’s a fifth-generation peach farmer out of Palisade, and president of the Colorado Fruit and Vegetable Growers Association (CFVGA), one of the organizations that lobbied against the bill. He was equally horrified by those farm worker testimonies — and confused by them. 

“The atrocities and the oppression that were presented in testimony before the House and the Senate, it’s just not something we’ve ever run into,” Talbott says. “I’m sure it exists … but it’s just not the norm.”

Talbott admits that there are surely a few “bad apples” out there who do exploit their workers. But, he reiterates: the issue in agriculture is not a lack of job opportunity, but a lack of laborers. If an employer is being abusive, there are plenty of other farmers who will treat them right who are ready to hire. Respecting your work force, and providing them with basic needs like shade, water, food, access to healthcare and fair wages is part of staying competitive for their labor, Talbott says. 

“If somebody is not getting a good value out of something, they’re going somewhere else. It’s very easy to find a job,” he says.

To Sen. Danielson, those workers’ rights should be protected by policy, not entrusted to market values. She says the root cause of this state’s agricultural worker shortage is that some of the workforce is going elsewhere, to states like California, Arizona, New Mexico, Kansas, South Dakota or Minnesota, where they’re already protected by varying degrees of agricultural workers’ rights.

“They claim this is the worst thing that has happened to agriculture in a long time, but at the same time they claim that exploitation never happens,” Danielson says. “How could it be that a bill that aims to end the legal exploitation of these workers would have such a significant negative impact on an industry if the industry claims that they don’t exploit their workers?”

Susan France Eric Skokan at Black Cat Farm in Longmont.

Going into overtime

For opponents, the most pivotal issue of the Colorado bill is the overtime provision, says Adrian Card, an extension agent with CSU’s Food Systems department.

In most other industries in Colorado, workers are protected by time-and-a-half pay when they exceed 40 hours of work in a week or over 12 hours in a day. SB 87 aims to establish that same protection for farm workers — which opponents say would be utterly devastating to Colorado’s local farmers. 

Card points to data CSU collected from 354 local agricultural operations as evidence. It shows that 30-50% of all agricultural workers in Colorado work more than 40 hours a week most seasons. On average, in peak season, it’s closer to 53-67 hours per week. According to the 2019 Farm Labor Survey, farm workers in Colorado make $14.50 per hour on average — but this bill would establish minimum wage at $14.75. So, with the new overtime requirements, the seasonal cost of labor would increase for farmers by some $3,000-$6,500 per ag employee.

That might be manageable for large scale farming operations. But to farmers like Skokan, running a small family farm, it’s simply untenable. 

“Generally speaking, [Black Cat Farm] makes $5,000 a year,” Skokan says. “It’s just slightly better than breaking-even.” 

He says Black Cat Farm can’t possibly afford to pay its workforce 20-30 hours of time-and-a-half overtime wages every week of peak season. Which leaves Skokan with three options: shrink the farm and grow a lot less organic produce for Boulder County; invest in expensive harvesting machinery and switch to crops that don’t need to be harvested by hand; or double his H2A staff (which would mean doubling all of the costs associated with that). 

Of those options, Skokan thinks he’ll have to take the first. 

“Depending on how this makes it through the rulemaking process, we will potentially be shrinking the farm by 50% or more,” he says. “We will just grow so much less.”

Talbott thinks that won’t be uncommon. He says this law change could significantly reduce the availability of Colorado-grown produce — like Pueblo Chiles, Olathe Sweet Corn, Palisade Peaches and Rocky Ford melons. 

Senator Danielson, however, calls that argument a “false claim.”

“When these states around us have made similar [policy] changes, that [loss of local produce] has not been the result,” Danielson says.

And, if overtime is disincentivizing employers from overworking their employees, then it’s serving its purpose, Civita argues. Overtime pay was never meant to be a reward for working more — it was implemented in the 1930s as a disincentive for employers to overwork their employees. Any operation that stands to lose everything because it depends on laborers working overtime hours without overtime pay is an operation that needs reform in Civita’s eyes. 

“There are farms, lots of farms … [that] hire a workforce and plan to have that workforce work 80 or 90 hours a week throughout the whole season,” she says. “Yes, the overtime will become extremely expensive in those instances — as it should.”

Logically, most farmers will cap their workers at 40-hours per week as a result of this. However, that solution creates its own set of problems, Skokan says. And not just because he would have to find twice the number of employees in an already-slim labor pool. 

“Many of our workers are H2A workers that we bring in from Mexico and they’re here for a finite amount of time and they are mentally prepared to move Heaven and Earth to work over a relatively short season,” Skokan says. “If I have to tell the H2A staff, ‘Hey, you can come here, but the amount of money that you’ll be able to earn is going to be 40% or 30% less,’ many of them will just opt out. All of a sudden, it’s not worth it.”

Skokan says among his workers, particularly his H2A staff, the prospect of this overtime cap at 40-hours per week has been met with derision and anxiety. 

“From their perspective, they can’t conceive of how to get the work done,” he says. “Everyone wants to work full throttle.”

Talbott points to what’s happening in California. The state passed its own overtime legislation for agriculture workers in 2016 and now, Talbott claims, California’s ag workers simply bounce around to circumvent the overtime cap, working at multiple farms instead of just one to get their desired hours.

“Our guys don’t want [overtime],” Talbott says. “They want the hours. They don’t want to be penalized for working over 40 hours.”

Pennies on the dollar

Both Skokan and Talbott quickly shoot down the idea of ramping up the cost of produce to cover the cost of overtime pay. Farming is a price taking industry, they explain. Large grocery chains will only pay them so much for their carrots, arugula or peaches. The market is so saturated with cheap produce from around the country and elsewhere, farmers have to take whatever price they’re offered, largely because consumers are so price inelastic when it comes to groceries.   

Talbott says it would be great if people were willing to pay more for food, but they don’t have to be. 

“Other [countries] can produce food a lot cheaper than we can produce it,” he says. “If people were making a killing in agriculture, we wouldn’t be losing farms and we wouldn’t be continuing to see consolidation.”

When it comes down to it, the real nut of this problem is not in the fields or on the farms — but in our food system itself. Farmers and their employees, who make up the very foundation of that system, aren’t being reasonably compensated for the critical service they provide. 

At least on that point, Civita agrees with them. 

“For every dollar that you or I or anyone else spends at the grocery store on food, only 14 cents of that dollar goes back to the farm level,” Civita explains. “And of that 14 cents, 1.2 cents go back to labor … so somebody’s making a lot of money on the rest of us eating. And it’s not the farmers and it’s not the farm workers.”

Civita asks, how much are the CEOs of large chains or industrial food processors making? Why isn’t more of that money making it down to the actual source of the food? Why does farming have to be a price-taking industry?

“That is the problem and it shouldn’t be set up that way,” she says. “However, we’re not going to do better by continually saying, ‘Well, the farmers can just cut their expenses on the backs of the human beings who actually produce the food so that someone in an office somewhere can make a six-figure salary.’”

It’s systemic exploitation of the farmers, by the market, passed onto the farm workers. So to Civita, the question becomes, how do we work together as laborers and as farmers to fight that phenomenon? 

The new Colorado legislation is at least part of her answer to that question, though many farmers think it misses the mark. 

“Everyone needs a living wage,” Skokan says. “It’s just really unfortunate that this bill was written as a ‘ready-fire-aim’ instead of a ‘ready-aim-fire’ piece of legislation.”

Gov. Polis is fully expected to sign SB 87 into law in the coming weeks. From there it will head to rulemaking with the CDLE, where some of the more contentious details of the bill — like whether the overtime cap is at 40 hours-per-week or 60, or exempted completely — will be hashed out. 

Skokan, Talbott, the CFVGA and ag researchers like Card are hoping that the CDLE will recognize the unique challenges the farming industry faces; that they’ll listen to these farmers’ concerns and consult with them more than the lawmakers and lawyers who crafted SB 87 did in the first place. 

Civita is hoping quite the opposite — that this bill moves forward into effect in exactly its current form. But she also says that having these kinds of conversations is the first step in addressing some of our food system’s most pernicious issues. 

“We need to have some spaces for this kind of discourse where we can actually untangle all threads,” Civita says. “We’re disadvantaging the universe of the possible by not having this nuanced conversation and reducing it down to [legislative bargaining] instead.”