A group of Colorado farm and ranch owners has filed suit against the recently enacted Agricultural Workers’ Rights law providing access to “key service providers” on their property.
The group filed suit in the U.S. District Court of the District of Colorado, challenging access provisions in the law that provide unfettered on-farm access of “key service providers” to meet with farm employees.
Senate Bill 21-087, or the Agricultural Workers’ Rights law, was signed by Gov. Jared Polis (D) in June 2021. The law removes the exemption of agricultural labor from state and local minimum wage laws, phases in overtime rules in 2024 depending on the type of operation, requires agricultural employers to provide employees with access and transportation to key service providers, and allows employees to have visitors at employer-provided housing without interference from other people.
“Senate Bill 21-087’s requirement that we open our private farm and ranch property to anyone identified as a ‘service provider’ at any time we are working, without any notice they are coming, without any assurance they will follow our safety and security rules, and with no remedy if they don’t, puts us in a position that no other class of Colorado employers faces,” the Colorado Council of Rural Employers—a coalition of several agricultural groups including the Colorado Cattlemen’s Association, Colorado Livestock Association, Colorado Farm Bureau and others—said in a statement.
The bill stipulates a key service provider is a health care provider, community health worker, education provider, attorney, legal advocate, government official (including a consular representative), member of the clergy or any “other service provider to which an agricultural worker may need access.”
The farm and ranch owners contend providing access to key service providers violates the 2021 Supreme Court decision in Cedar Point Nursery v. Hassid. The ruling held decisively that a California regulation allowing union organizers access to private property for three hours a day and 120 days out of the year to recruit workers was an unconstitutional taking of private property.
Supreme Court Chief Justice John Roberts Jr. wrote in his opinion the California law “grants labor organizations a right to invade the growers’ property and therefore constitutes a per se physical taking.” Physical takings must be compensated under the taking clause of the Fifth Amendment of the Constitution.
The owners also contend allowing people other than workers onto the farm could affect Good Agricultural Practices and Good Handling Practices audits, introduce diseases that could affect their produce, and pose a safety risk to visitors and employees.
“We have a duty to protect the food we grow and harvest from contamination,” the Colorado Council of Rural Employers said. “Many of our farming and ranching operations must meet strict government and industry standards that are not compatible with people wandering around on our property and ultimately putting our consumers at risk.”
The owners stated in court documents that the Colorado access provisions are broader and substantially more violative of private property rights than the union organizer access right created by the California regulation at issue in the Cedar Point Nursery case. They state it goes beyond just union organizers, imposing no limit on the number of days service providers can access the property and requiring no notice or limitations to the number of organizers.
“The access provisions authorize service providers to enter plaintiffs’ private property without consent and without compensation having been granted to plaintiffs,” court documents state. “For that reason, the access provisions impose unconstitutional, per se takings against Colorado agricultural employers, including the plaintiffs.”
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. — Charles Wallace, WLJ editor
