Many Colorado Workers Are Set To Gain Overtime Protections But Many Will Still Be Left Out

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Natalia V. Navarro/ CPR News
Carpenter and union representative Juan Arellano speaks in front of the Colorado Department of Labor and Employment in Denver on Monday, Dec. 16, 2019. Arellano was speaking in support of new rules that include construction workers in labor protections.

Half of a million Colorado workers are set to receive new labor protections that go into effect in 2020, but not everyone is happy. Some employers are upset with the new rules, and some workers are upset that they have been left out.

A few workers who traditionally haven't gotten protections like overtime pay and guaranteed rest breaks will get them, but critics say the proposed rules will change things too slowly and for too few people.

The Colorado Overtime and Minimum Pay Standards proposed by the Colorado Department of Labor and Employment set new standards for overtime, breaks and who is eligible for minimum wage. Agricultural workers are among those excluded from most of the new protections.

"How is it that most other workers are entitled to rest breaks, time to eat lunch, overtime and minimum wage, why not farmworkers?" said Jenifer Rodriguez, a lawyer who represents farmworkers across the state. "A lot of those other jobs don't involve strenuous physical labor and long hours in extreme heat, yet they all get those protections."

It’s been more than 20 years since the rules have been updated. According to state labor officials, they had been hearing about the rules being antiquated for several years, but the work of actually changing those rules started with a new administration in the governor’s mansion and new leadership in the Colorado Department of Labor and Employment.

For the first time since the late 90s, construction workers will get overtime and rest break protections, according to Juan Arellano, a carpenter and union representative for Colorado construction workers.

He said he is happy to have these new protections, but he says he wishes agricultural workers got them too.

"To not be able to take a break to at least relieve yourself and just gain nourishment, gain energy, you're adding to the possibility of that worker not going home," Arellano said.

More than six times more construction workers than law enforcement officers died on the job last year in the U.S.

"These workers are exhausted," Arellano said. "Most of their time is spent at work, little time spent with the family. In their eyes, they have to continue working sun up to sun down or even Saturdays on account to just make ends meet."

The old state laws allowed some contractors to work people 70 hours a week sometimes with no overtime pay and no breaks, he said. That gave those contractors a financial advantage over those who do pay overtime and give rest breaks. Arellano said he hopes the inclusion of construction workers in the COMPS order will put everyone on a level playing field.

"This is going to benefit us. This is going to benefit the state. I see benefit all around," he said.

The state Division of Labor Standards and Statistics held a public hearing earlier in December. Most people who testified supported the expansions already planned, but many argued the changes don't go far enough.

The plan is to incrementally expand who qualifies for the new required overtime pay.

"This proposed rule is an important step forward but there's more work to be done," Debbie Olander of the United Food & Commercial Workers said in testimony during the public hearing. "While tens of thousands of salaried workers will get the overtime pay they deserve starting next year, hundreds of thousands more will need to wait an additional six years for the overtime pay they have earned."

Starting next year, people who make less than $42,500 a year must get overtime pay if they qualify. Between 2020 and 2026, that threshold will rise to $57,500 a year.

Colorado sets its own minimum because fewer people qualify under federal rules.

Of course, only workers in eligible industries will get that overtime pay. Doctors, lawyers, teachers and agriculture workers are all excluded.

Only some farmworkers will have access to the guaranteed rest breaks construction workers will soon be provided, according to Rodriguez.

The way the rules are currently written, Rodriguez said, a worker picking Rocky Ford cantaloupes at a qualifying farm could get just 20 minutes for a 10-hour shift to meet the Department of Labor's requirement.

Advocates say that isn’t enough time.

"This does not allow for any kind of meaningful break to find shade, bring down your body temperature, make a phone call to your child's school, call the doctor's office or even call CDLE to make a complaint," Rodriguez said.

Colorado has a lot of small farms. For the most part, they are exempt from the rules. That means at least a third of agricultural workers in the state are exempt from these kinds of labor protections, both state and federal.

Plus, some children as young as 12 work in the fields with their parents.

Rodriguez said farmworkers are a vulnerable population that are often afraid to voice labor concerns under the protections they do have. No farmworker CPR News spoke to for this story was willing to let us use their name; all of them said they fear retaliation by their employers.

Farmworkers have been historically excluded from labor protections because of racial bias, Rodriguez said.

Some employers are against the rules. For example, Natural Grocers testified against it. The Employers Council testified that it will send small employers to surrounding states.

A public comment period closes at the end of December. The rules are expected to be finalized on January 10th and could go into effect as early as March.