Colorado Lawmakers Consider Competing Agricultural Overtime Bills
John Agbonika, Associate
Colorado lawmakers are considering two competing bills that would change agricultural overtime rules. One bill, SB 26-081,[1] would lower the current overtime threshold for agricultural employes from 48 hours to 40 hours per workweek to match the rules that generally apply to other Colorado workers. The other, SB 26-121,[2] would raise the threshold to 60 hours per week. For agricultural employers, the debate matters because either bill could materially change labor costs, scheduling practices, and recordkeeping obligations.
Background
Colorado’s agricultural overtime framework was enacted in 2021,[3] but the law did not impose a specific weekly overtime threshold. The Division of Labor Standards and Statistics (the “Division”) was tasked with promulgating rules to establish overtime pay for agricultural workers.[4] In a phased approach, the Division adopted overtime rules which initially required weekly overtime after 60 hours from November 1, 2022 through December 31, 2023, and as of January 1, 2025, now requires overtime to be paid to agricultural employees after 48 hours worked in a week, although highly seasonal agricultural employers may use a 56-hour overtime threshold for up to 22 peak weeks but must otherwise continue to use the general 48-hour rule otherwise.[5] The general overtime provisions of the COMPS Order for non-agriculture employers require employers to pay employees time and one-half of the regular rate of pay for any work in excess of 40 hours per workweek, 12 hours per workday, or 12 consecutive hours without regard to the start and end time of the workday. See 7 CCR § 1103-1:4.1.1. The varying agricultural overtime rules, however, have the potential to cause confusion with agricultural employers as to when they were required to pay overtime during certain times of the year based upon the number of employees employed.
SB 26-081 and SB 26-121
The current debate over agricultural overtime centers on two competing bills that take opposite approaches to when agricultural employees must receive overtime pay. If enacted, SB 26-081 would require employers to pay overtime for agricultural employees who work over 40 hours in a workweek, 12 hours in a workday or 12 consecutive hours, which is identical to Colorado’s overtime rules for non-agricultural employees.
SB 26-121 would instead require agricultural employers to pay overtime to agricultural employees only after they work 60 hours in a workweek with exemptions for certain workers including employees engaged in the range production of livestock on the open range, certain decision-making managers who meet applicable salary thresholds, and certain family members of a family owner of an agricultural employer.[6]
Employer Considerations
Whichever bill is enacted, it likely will bring some clarity to the agricultural industry as to when an agricultural employer is required to pay overtime. SB 26-081 would lower the current weekly overtime pay threshold for agricultural employees and align agricultural employees overtime pay with current overtime pay for non-exempt employees who work outside of the agricultural setting. That would likely increase overtime exposure, especially for operations that depend on long shifts during planting, harvest, irrigation, or other peak periods. By contrast, SB 26-121 would raise the weekly threshold for paying overtime to 60 hours a week and would likely give employers more flexibility in managing seasonal and weather-driven work demands.
Employers with operations fitting squarely into the agricultural employer definition and those who may fall into that category because of the work they do, should pay close attention to these competing overtime bills since the passage of one of them could drastically impact their operations.
[1] See S.B. 26-081, 75th Gen. Assembly, 2nd Reg. Sess. (Colo. 2026), available at https://leg.colorado.gov/bill_files/111437/download
[2] See S.B. 26-121, 75th Gen. Assembly, 2nd Reg. Sess. (Colo. 2026), available at https://leg.colorado.gov/bill_files/112564/download
[3] See S.B. 21-087, 73rd Gen. Assembly, 1st Reg. Sess. (Colo. 2021) available at https://leg.colorado.gov/bill_files/55465/download
[4] See Colo. Rev. Stat. § 8-6-120. An agricultural employer means a person engaged in services mentioned in Agricultural Labor Rights and Responsibilities Act, C.R.S. § 8-2-206(1)(c), C.R.S. § 8-3-104(1), section 203(f) of the Fair Labor Standards Act (the (“FLSA”), and section 3121 of the federal ‘Internal Revenue Code of 1986, including farming in all its branches and among other things includes the cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities (including crude gum (oleoresin) from a living tree, Gum spirits of turpentine and gum rosin), the raising, shearing, feeding, caring for, training, and management of livestock, bees, fur-bearing animals, or poultry, and any practices (including any forestry or lumbering operations) performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market. See 7 CCR § 1103-1:1.6(C) (“COMPS Order”). An agricultural employee is a worker who performs any of the services mentioned above. Id. at 1.5(C).
[5] See Interpretive Notice & Formal Opinion (“INFO”) #12A, at p. 1. 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 during that peak season, as long as the employer meets certain requirements. See INFO #12A, at pp. 1-2. Peak weeks are periods an agricultural employer designates as its peak labor period(s), i.e., when the employer employs at least double the number of employees it employs in non-peak weeks. See generally 7 CCR § 1103-1:2.3.2; see also Overtime Notice for Highly Seasonal Agricultural Employment issued by Colorado Department of labor and Employment (“CDLE”) available at https://cdle.colorado.gov/sites/cdle/files/highly_seasonal_agricultural_employer_notice_%26_peak_week_disclosure_accessible.pdf
[6] These exemptions currently apply under the COMPS Order. See 7 CCR § 1103-1:2.3.2(D) (family members of a family owner of an agricultural employer); 7 CCR § 1103-1:2.4.8 (Decision-Making Managers at Livestock Employers); 7 CCR § 1103-1:2.4.9 (Range workers principally engaged in the range production of livestock on the open range).