A bipartisan bill that will get its first hearing this week will attempt to reverse some of the provisions of the 2021 farmworkers’ rights bill. This could appeal to Democrats who want to protect migrants who are living and working in the U.S. illegally on Colorado farms and ranches.

Senate Bill 128 is tied to a 2021 U.S. Supreme Court decision, which was announced just two days before Gov. Jared Polis signed Senate Bill 21-087 into law.

Colorado law allowed farm workers to join unions and engage in collective bargaining. It also allowed workers to sue for retaliation or other complaints, require that they be paid minimum wage and overtime pay, and require that employers provide workers with transportation.

But it went beyond that.

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In 2021, the Court ruled in Cedar Point Nursery v. Hassid that a California regulation allowing union organizers and other “key service providers” onto farm property was a “taking” without compensation from the state and, hence, a violation of the Fifth and Fourteenth Amendments.

It also may have made the Colorado law unenforceable.

Colorado’s law includes health care providers, clergy, lawyers or other legal advocates, and educators as “key service providers.” According to the Council of Rural Employers, the rights granted to farm workers far exceed those allowed by any other employer in Colorado.

Farm and ranch employers must also provide employees with internet and phone access to contact off-site service providers and grant them time off to meet with them.

The Supreme Court, in its ruling on Cedar Point, said it didn’t matter that the “right to invade” in the California regulation was limited to a specific purpose; the government took from the farm owners the right to physically control access to and use of their private property. Under that condition, the state must pay for that access, the Court said.

The Supreme Court ruling was released on June 23, 2021, and Polis signed SB 87 on June 25, 2021.

Sens. Dylan Roberts, D-Frisco, and Byron Pelton, R-Sterling, are the prime co-sponsors of Senate Bill 128. Roberts chairs the ag committee, but the committee’s vice chair is Sen. Jessie Danielson, D-Wheat Ridge, the sponsor of the 2021 law.

SB 128 strikes the language from the state law concerning key service providers.

In the House, the measure is sponsored by Reps. Karen McCormick, D-Longmont and House Assistant Minority Leader Rep. Ty Winter, R-Trinidad. McCormick chairs the House Agriculture, Water and Natural Resources Committee.

The lines have already been drawn on how the fight will unfold, with labor on one side and the agriculture industry on the other.

Former state agriculture Commissioner Don Brown opposed the bill back in 2021. Anyone can be a key service provider, he said, pointing out that the bill lacked a definition. No other industry has that kind of requirement, he noted.

“Our business is a high-risk business,” but if a farmer does not know someone is coming onto their property, the farmer doesn’t know what’s happening. And that can lead to distractions, including mistakes and accidents, he said. This concept that it is okay to come on someone’s land without parameters is not safe for anyone, including for the workers.

The Colorado Department of Labor and Employment told Colorado Politics in an email Wednesday they have had complaints and investigations related to the rights granted to agricultural workers under SB 87, focused on unpaid minimum wages or other pay and overtime. They’ve also had complaints around heat protection, such as access to water and shade. 

Fewer than five complaints a year are related to key service providers, the department said.

One union has been formed since SB 87 went into effect, out of two attempts. 

Representatives of Colorado AFL-CIO, which backed the 2021 law, did not respond to a request for comment.

While SB 87 passed along strict party lines in 2021, backers believe there could be some appeal to Democrats for repealing the section of the law about Cedar Point that is tied to Immigrations and Customs Enforcement (ICE).

Currently, ICE agents can go on farm or ranch property without a warrant and in search of undocumented workers, and that includes asking workers for their identification. It’s become a more controversial issue as President Donald Trump has vowed to make immigration his top priority. ICE raids and warnings has already caused farmworkers in the country illegally to be warned to stay home or at least be on high alert.

Colorado State University estimates that 25% to 30% of farmworkers in Colorado are undocumented, although many are on H-2A visas.

Backers of SB 128 believe that if the bill passes, ICE agents would have to have warrants—and that means specifically identifying workers by name—to enter a farm or ranch.

SB 128 is scheduled for Thursday’s Senate Agriculture and Natural Resources Committee.

Editor’s note: This story has been updated with information from the Colorado Department of Labor and Employment.