In June, Colorado farm and ranch owners filed a lawsuit in U.S. District Court challenging newly adopted legislation that requires agricultural employers to open their private property to what the bill calls “key service providers.”
The lawsuit stems from regulations promulgated under Colorado’s Senate Bill 21-087 (Agricultural Workers’ Rights law), which was signed into law in June of 2021 by Governor Polis. The law includes new agricultural labor overtime rules, removes the agriculture labor exemption from state and local minimum wage laws, and allows unfettered access to farms and ranches by any “service provider to which agricultural workers may need access.”
The plaintiffs in the case are Talbott’s Mountain Gold LLLP, Talbott Land and Property LLLP, Blaine D Produce Company LLC, Box Elder Ranch LLC, Box Elder Ranch Inc., Marc Arnusch Farms LLC and Mauch Farms Inc.
The plaintiffs argue that the key service provider provision of the law directly violates a 2021 Supreme Court decision. The ruling in Cedar Point Nursery v. Hassid determined a California regulation giving union organizers access to private property was unconstitutional. Supreme Court Chief Justice John Roberts Jr. noted that the California law “grants labor organizations a right to invade the growers’ property and therefore constitutes a per se physical taking.”
Bruce Talbott, farm manager of Talbott’s Mountain Gold LLLP says the Supreme Court was clear when they ruled farmers and ranchers should have a say about who accesses their property.
“Right now, farmers and ranchers in Colorado are in a tough place where they’re required to let others access their property, and yet know that it’s legally unsound,” he said.
The rules issued in Senate Bill 21-087 place farms and ranches under a much higher standard of employment protections than any other employer currently faces. The plaintiffs in the Colorado case state that the current rules extend beyond just union organizers, and have no limits on the number of days key service providers can access private property and no limits on the number of organizations.
“The current law says that we must allow anyone identified as a key service provider onto private property at any time for any purpose, rules that are not only problematic for farmers and ranchers but are in direct conflict with the Cedar Point Nursery decision,” says Chad Vorthmann, coalition organizer for the Colorado Council of Rural Employers. “This lawsuit is meant to fix the legal bind the industry is in.”
The Colorado Council of Rural Employers, a coalition of several agricultural groups supporting the plaintiffs in this case, also cite that the rule could affect Good Agricultural Practices and Good Handling Practices audits. By allowing outside visitors onto an operation, produce could be at risk of disease and both visitors and employees could be exposed to safety risks.
As Senate Bill 87’s Farm Access Law imposes almost no limits whatsoever on the unfettered access it affords key service providers to Colorado farms and ranches, the Council is confident that the District Court will determine that it is unconstitutional and unenforceable. The court will hear the merits of the case at the end of the year.