Senate Bill 25-128 Reengrossed

A Bill for an Act

• Page 1, Line 101Concerning repealing certain provisions that prohibit an

• Page 1, Line 102employer from interfering with an agricultural

• Page 1, Line 103employee's access to service providers, and, in

• Page 1, Line 104connection therewith, repealing provisions that

• Page 1, Line 105prohibit an employer from interfering with an

• Page 1, Line 106agricultural employee's access to service providers on

• Page 1, Line 107private land.

Bill Summary

(Note: This summary applies to this bill as introduced and does not reflect any amendments that may be subsequently adopted. If this bill passes third reading in the house of introduction, a bill summary that applies to the reengrossed version of this bill will be available at http://leg.colorado.gov.)

The bill repeals current state law provisions that, in part, govern agricultural workers' key service providers' access to private property.

• Page 2, Line 1Be it enacted by the General Assembly of the State of Colorado:

• Page 2, Line 2SECTION 1.  Legislative declaration. (1)  The general assembly finds and declares that:

• Page 2, Line 3(a)  On June 25, 2021, the governor signed Senate Bill 21-087 into

• Page 2, Line 4law, including the agricultural worker key service provider access provisions;

• Page 2, Line 5(b)  On June 23, 2021, after the general assembly passed Senate

• Page 2, Line 6Bill 21-087, the United States supreme court announced its decision in

• Page 2, Line 7Cedar Point Nursery v. Hassid, 594 U.S. 139 (2021), which involved a

• Page 2, Line 8California regulation that granted certain third parties a right of access to agricultural employers' property to meet with employees;

• Page 2, Line 9(c)  In Cedar Point Nursery, the court held that the access

• Page 2, Line 10provision "appropriates a right to invade the [employers'] property and

• Page 2, Line 11therefore constitutes a per se physical taking" because it "appropriates for the enjoyment of third parties … the [employers'] right to exclude.";

• Page 2, Line 12(d)  The court found that such an access provision cannot be

• Page 2, Line 13regarded as a mere regulatory restriction on the use of property, as "the

• Page 2, Line 14right to exclude is 'universally held to be a fundamental element of the property right'";

• Page 2, Line 15(e)  For these reasons, the court ruled that the access provision was

• Page 2, Line 16a per se physical taking requiring just compensation under the fifth and fourteenth amendments to the United States constitution;

• Page 2, Line 17(f)  Both the United States and Colorado constitutions contain

• Page 2, Line 18takings clauses that prohibit the government from taking private property without just compensation;

• Page 3, Line 1(g)  The fifth amendment to the United States constitution,

• Page 3, Line 2applicable to the states through the fourteenth amendment, provides: "nor

• Page 3, Line 3shall private property be taken for public use, without just compensation.";

• Page 3, Line 4(h)  The Colorado constitution provides that "until [just

• Page 3, Line 5compensation] shall be paid to the owner, or into court for the owner, the

• Page 3, Line 6property shall not be needlessly disturbed, or the proprietary rights of the owner therein divested";

• Page 3, Line 7(i)  The Colorado constitution's prohibition on takings is similar to

• Page 3, Line 8the United States constitution's takings clause with one critical exception,

• Page 3, Line 9which is that the Colorado constitution provides that compensation shall be paid prior to a taking; and

• Page 3, Line 10(j)  The court's ruling in Cedar Point Nursery establishes that

• Page 3, Line 11certain agricultural worker key service provider access provisions in

• Page 3, Line 12Senate Bill 21-087, like the California regulation, constitute a taking by

• Page 3, Line 13appropriating an employer's fundamental property right, the right to exclude.

• Page 3, Line 14(2)  Therefore, based on Cedar Point Nursery, the general

• Page 3, Line 15assembly now determines that certain agricultural worker key service

• Page 3, Line 16provider access provisions, including those set forth in section 8-13.5-202

• Page 3, Line 17(1)(b), Colorado Revised Statutes, are unconstitutional and unenforceable

• Page 3, Line 18as applied to any location, as referenced in that section, that is privately owned.

• Page 3, Line 19SECTION 2.  In Colorado Revised Statutes, 8-13.5-202, amend(1)(b) and (1)(c) as follows:

• Page 3, Line 20 8-13.5-202.  Agricultural workers - right of access to key

• Page 4, Line 1service providers - rules - definition. (1) (b) (I)  An employer shall not

• Page 4, Line 2interfere with an agricultural worker's reasonable access to key service

• Page 4, Line 3providers at any location other than the employer's property during

• Page 4, Line 4any time in which the agricultural worker is not performing compensable

• Page 4, Line 5work or during paid or unpaid rest and meal breaks. and with respect to

• Page 4, Line 6health-care providers during any time, whether or not the agricultural

• Page 4, Line 7worker is working. An employer shall not interfere with an

• Page 4, Line 8agricultural worker's reasonable access to key service

• Page 4, Line 9providers through remote channels, including telehealth appointments, on the employer's property.

• Page 4, Line 10(II)  As used in this section, "employer's property" means

• Page 4, Line 11property in which the employer holds an ownership or possessory interest or a right to exclude.

• Page 4, Line 12(c) (I)  To ensure that agricultural workers have meaningful access

• Page 4, Line 13to services, the director of the division shall promulgate may adopt rules

• Page 4, Line 14regarding additional times during which an employer may not interfere

• Page 4, Line 15with an agricultural worker's reasonable access to key service providers

• Page 4, Line 16at any location other than the employer's property, including

• Page 4, Line 17periods during which the agricultural worker is performing compensable

• Page 4, Line 18work, especially during periods when the agricultural worker is required

• Page 4, Line 19to work in excess of forty hours per week and may have difficulty

• Page 4, Line 20accessing such services outside of work hours. The rules must be

• Page 4, Line 21proposed on or before October 31, 2021, and adopted on or before January 31, 2022.

• Page 4, Line 22(II)  The division shall not adopt rules that infringe upon

• Page 4, Line 23an employer's private property rights by appropriating a right of

• Page 4, Line 24access to the employer's private property, other than those

• Page 5, Line 1locations on a employer's property for which access is expressly

• Page 5, Line 2authorized in this section, to a third party without the employer's permission.

• Page 5, Line 3(III)  The division shall not adopt rules that conflict with

• Page 5, Line 4the common law right of an individual to access private property in a time of emergency.

• Page 5, Line 5SECTION 3.  Applicability. This act applies to conduct occurring on or after the effective date of this act.

• Page 5, Line 6SECTION 4.  Safety clause. The general assembly finds,

• Page 5, Line 7determines, and declares that this act is necessary for the immediate

• Page 5, Line 8preservation of the public peace, health, or safety or for appropriations for

• Page 5, Line 9the support and maintenance of the departments of the state and state institutions.