The Fair Labor Standards Act of 1938 sets federal standards for employees including minimum wage, child labor and overtime. Agricultural workers have been largely exempted from the overtime requirements because during key portions of the growing season, there is a small window of time that requires more hours and more labor than the majority of the year.

When Colorado passed a misguided labor bill, SB21-087 or the Farm Worker’s Bill of Rights, in 2022 led by Sen. Jessie Danielson, ag employers became required to pay overtime for 48 hours per week. Ag employers explained farming doesn’t operate on bankers’ hours and many of the migrant workers who follow the harvest would circumvent Colorado in order to work more hours and take more money home with them at season’s end. Now, a study from UC Berkeley indicates regulated overtime standards for ag workers negatively effects the workers it aims to protect.

California began lowering overtime thresholds in 2017 and now recognizes a 40-hour week and an 8-hour day. Hawaii, Minnesota, Oregon, Washington, New York, Maryland and Maine have similar overtime laws for ag workers. The UC Berkeley study by Alexandra Hill, assistant professor of cooperative extension in the Department of Agricultural and Resource Economics found that, no surprise, earnings decrease. Agriculture is a business and it must pencil, forcing many employers to cut hours rather than pay overtime.

Her study also found hours decreased more for documented versus undocumented workers, English speakers versus non-English speakers, and piece rate paid workers relative to hourly. The weekly working hours were reduced, earnings were reduced, and no more domestic jobs were created.

In California in 2021-22, after overtime regulations were in place, the average crop employee worked four fewer hours and earned $65 less each week than they would have without the overtime law. Only 28% of crop workers worked more than 45 hours per week and 52% of crop workers would have worked this without the law in place. Only 48% of workers earned more than $600 per week, whereas 68% would have earned this without the law in place.

Many of the crop workers value income more than additional leisure time and many workers reported seeking a second job in response to losing hours. The labor laws force employers to hire additional workers, invest in labor-saving technologies, or even switch their operations to less labor-intensive crops.

It’s important, too, to recognize this does not include H-2A workers who make up a large percentage of crop workers. The H-2A program is complicated and expensive, but many ag employers who utilize it have long working relationships with individuals and groups of workers.

One of the major flaws of SB21-087 was remedied last year by removing the portion that was an egregious private property rights overstep. Previously, ag employers could not restrict access to service providers to visit employees. Service providers were loosely defined and the biosecurity and safety issues all culminated in Gov. Jared Polis signing a bill to fix this portion.

Even so, overtime requirements are not the solution, especially in an industry that is absolutely strapped for labor. It is also an industry that includes a plethora of jobs that can only be done by hand and can only be done under a time crunch. Peach harvest and packing, for example, is fast and furious and labor intensive but it’s only a few weeks long. There is no substitution for range workers, like the Peruvian sheep herders at work alongside the sheep in the forest and on the desert in western Colorado. There is no substitution for a rancher sitting in his pickup watching a heifer calve and potentially intervening to save them both at 2 a.m. There’s also no substitute for a safe, abundant and affordable food supply of real food.

The business of food production is a business with expenses and factors beyond the control of growers. But, at the end of the day, it is the business of filling tummies and feeding our neighbors and fueling the Americans doing hard things every day and it’s the thing that makes us a country able to feed and defend ourselves. Real solutions and common sense are going to have to make an appearance in any bill that seeks to remedy this challenge facing agriculture.

Rachel Gabel writes about agriculture and rural issues. She is assistant editor of The Fence Post Magazine, the region’s preeminent agriculture publication.