Senate Bill 21-087, passed last year, removed agriculture’s exemption from overtime. Overtime pay for ag workers is being phased in, starting in November 2022, as listed below. Be informed, so you can be in compliance!
Outside agriculture, hours over 40 weekly or 12 daily, must be paid time-and-a-half: 1.5 times the worker’s regular rate of pay. Previously, agriculture was exempt from this requirement. Starting November 1, agricultural employers must pay overtime based on the new rules below.
Weekly Time-and-a-Half Overtime
Starting November 1, 2022 and through the end of 2023, Ag employers (regardless of how large or how seasonal the businesses are) must pay time-and-a-half after the worker works 60 hours per week.
Starting January 1, 2024, overtime thresholds are based on the type of agricultural employer per definitions below:
• Highly seasonal employers — after 48 hours per week, or 56 hours for up to 22 “peak weeks”
• Small employers — after 56 hours per week
• Other employers — after 54 hours per week
Starting January 1, 2025, All ag employers must pay time-and-a-half after 48 hours per week, or, for “highly seasonal” employers, after 56 hours for up to 22 peak weeks (with no difference for small employers).
Daily Overtime
After 12 hours per day, employers must provide a half-hour paid break instead of the usual shorter third rest period (which can be on next workday, if the employer didn’t know the employee would work 12 hours); and after 15 hours per day — an extra hour’s pay of at least the Colorado minimum wage.
Definitions of “Small” and “Highly Seasonal” Agricultural Employers for Overtime Rules
A “small agricultural employer,” with less weekly overtime required in 2024, means the following:
• Staffing — fewer than four employees on average in the prior three calendar years
• Income — average adjusted gross annual income under $1,000,000 for the three prior tax years
A “highly seasonal agricultural employer” means an employer with at least twice as many employees in an up to 22-week peak season than during the rest of the year, and that can pay 56-hour rather than 48-hour overtime during that peak season, as long as it:
• Provides employees a notice, at least annually (with pre-employment notice for H-2A workers, or for other employees either 30 days before peak weeks begin, or upon hiring if the hiring is less than 30 days before the peak weeks start), stating:
o That overtime will be paid after 56 rather than 48 hours during up to 22 peak weeks, and
o A good-faith estimate of when the peak weeks will occur, and whether those peak weeks will be divided into two or three periods, rather than one continuous set of weeks; and
o Provides a disclosure to employees, at least annually (and seven days in advance of the first peak week, or upon hiring for employees hired later) identifying when the peak weeks will be.
These notices and disclosures must be in English and any language that is the first language of at least 5% of employees at the worksite.
The employer may change which weeks are its “peak” weeks if:
• It gives at least one-week written notice before the change;
• The initial notice or disclosure was its good-faith belief of which would be the peak weeks; and
• The change is based on information not available as of the initial disclosure (such as a late frost).
Additional information on the overtime provisions of SB21-087, The Agricultural Labor Rights and Responsibilities Act of 2021, is available here.
Note: This article is as interpreted by CNGA staff and does not constitute legal guidance.
