Tuesday, September 24, 2013
The Workforce Investment Act (WIA) reauthorization, S. 1356, has been reported favorably out of the Senate Health, Education, Labor and Pensions (HELP) Committee and may go to the Senate floor in the fall for a vote. As constituents and vested stakeholders in the reauthorization of the Rehabilitation Act, which is being considered as part of the WIA reauthorization, we seek to #FIXWIA so that it will best serve the millions of people with disabilities reliant on this vital piece of legislation. To that end, we respectfully request members of the U.S. Senate to offer and support the following two amendments to the Workforce Investment Act (WIA):
- Strike Title V., Section 511, which would incorporate the subminimum wage language of Section 14(c) of the Fair Labor Standards Act (FLSA) into the Rehabilitation Act.
- Remove the language that would transfer the Rehabilitation Services Administration (RSA), while keeping the Older Blind Services within RSA, to the U.S. Department of Labor.
We applaud the authors of the Workforce Investment Act language and recognize the positive improvements to the quality of rehabilitation services that could result from its passage. However, all potential improvements will be negated if Senators choose to engage in detrimental deference rather than seeking to understand the proposed language. Senator Harkin has a well-deserved reputation of being a champion for the rights of people with disabilities. His track record of hard work to pass the Americans with Disabilities Act (ADA), among other disability-related public policies, is deservedly praised.
Senator Alexander is equally accomplished, as the former Governor of Tennessee, and former U.S. Secretary of Education. Both men are tremendous public servants and duly worthy of respect. However, neither of these men attained their success without the support and endorsement of the constituencies they serve, nor does their knowledge of disability policy surpass that of the true stakeholders. A growing number of organizations representing a cross section of people with disabilities and disability service professionals, with expertise and experience in all facets of the Rehabilitation Act, are adamantly opposed to the referenced language. Yet, in our efforts to point out the detrimental language found in Title V. (the Rehabilitation Act) of the Workforce Investment Act (WIA), some Senate staffers have simply responded with a statement of deference to Senator Harkin and Senator Alexander. Although Senator Harkin and Senator Alexander deserve considerable respect for their good works on behalf of people with disabilities, their proposed amendments to the WIA reauthorization are not entitled to deference when they threaten to have a detrimental impact on the lives of millions of people with disabilities.
We offer the following information and supporting documentation to clarify our concerns and to demonstrate the unintended detrimental consequences of the proposed language.
Strike Section 511
For more than seventy years, Section 14(c) of the Fair Labor Standards Act (FLSA) has allowed employers to obtain a Special Wage Certificate permitting them to legally pay their workers with disabilities less than the federal minimum wage. This antiquated provision, based on what can best be described as “compassionate discrimination,” has created an industry of low expectations trapping over four-hundred thousand people with disabilities in sheltered subminimum wage work environments, with some being paid only pennies per hour. Today, the overall nature of the job market has changed, the ability to use assistive technology has made it possible for people with disabilities to perform any number of competitive job tasks, and the profession of rehabilitation has developed new job training and placement strategies to competitively employ a person with even the most significant disability. Most, if not all, of these workers, with the proper training and support, could be receiving competitive wages that would allow them to leave the rolls of social programs like welfare, food stamps, and social security.
Instead of working to repeal the discriminatory practice of paying subminimum wages to workers with disabilities through the passage of the Fair Wages for Workers with Disabilities Act (HR 831), legislation supported by over sixty organizations of and for people with disabilities, we are asked to support ineffective language said to prevent youth with disabilities from being tracked into subminimum wage jobs. The language in Section 511 links the Rehabilitation Act, which was established to assist people with disabilities in obtaining competitive integrated employment, with Section 14(c) of the FLSA, which is based on the false premise that people with disabilities cannot be competitively employed and therefore can be paid subminimum wages. We have presented our analysis of Section 511, and our opinion is supported by a report by professor Samuel R. Bagenstos, who further explains the potential negative impact this language would have on Olmstead enforcement. The following is a partial excerpt of our analysis that demonstrates that the language does not meet the intended goal of reducing the number of youth being tracked into subminimum wage work environments:
Section 511(a)(4) … clearly states that rather than providing the services listed as a “speed bump” to subminimum wage placement, disabled persons of any age can be immediately referred to a subminimum wage employer under the guise of training for competitive integrated employment. Vocational rehabilitation professionals are currently discouraged from using subminimum wage environments for training or employment, but this language endorses the practice. Not only can a youth with a disability be sent directly to a subminimum wage work environment, but the sheltered workshop holding the 14(c) certificate is being endorsed as a viable employment training provider for youth with disabilities. This ignores the research that demonstrates job training services provided by an employer holding a special wage certificate are more costly, produce poorer outcomes, and teach outdated skills and poor work habits that individuals with disabilities must unlearn in order to obtain gainful employment. In addition, data show that less than 5 percent of individuals in a sheltered subminimum wage work environment ever transition into competitive integrated work environments. Rather than reducing the number of youth tracked into subminimum wage work environments, this provision sentences the next generation of subminimum wage workers to a lifetime of low expectations. This is especially true for those individuals with the most significant disabilities, who are seen as presenting a considerable challenge for vocational rehabilitation agencies to place in competitive integrated employment.
Contrary to the collaborative coalition of policy makers and stakeholders that joined together to pass the ADA, an overwhelming and growing number of organizations of people with disabilities object to the language in Section 511, and feel it is a detrimental step backwards that should be stricken from the WIA reauthorization. Everyone, even its author, admits that it does nothing toward the repeal of Section 14(c) of the Fair Labor Standards Act. It is also important to note that although some disability organizations have expressed support for the passage of WIA, this should not necessarily be interpreted as support for Section 511. In fact most, if not all, of these groups would still support WIA with the removal of Section 511.
- Compassion Can Be Discrimination
- The Commensurate Wage Fallacy
- List of Organizations Supporting Striking Section 511
- NFB Section 511 Position Statement
- Sam Bagenstos Report
- NFB Analysis of Section 511 Language
- NCD Letter to Senate HELP Committee Opposing Sec. 511's Inclusion in WIA Reauthorization
- Collaboration to Promote Self-Determination Letter on Section 511
Remove the Language Transferring RSA
The programs administered by the Rehabilitation Services Administration (RSA), like most other governmental programs, are not perfect programs, and as innovative strategies emerge, we should work toward the responsible reform of our policies in order to improve the quality of rehabilitation services being provided to people with disabilities. However, the transfer of RSA to the Department of Labor is a tremendous shift of administrative/program functions and responsibilities being proposed without any data, research, or cost/benefit analysis. The expressed intent is to “shake things up,” to move the so-called “redheaded stepchild” of RSA, and to give the Office of Disability Employment Policy (ODEP) a mission. More recently, we have been told that the move is intended to eliminate the allegedly discriminatory “separate, but equal” employment services being provided to people with disabilities. Attempting to justify this potentially devastating realignment with the rhetorical statement of: “After all, if the President of the United States wants to know about the employment of people with disabilities, he will ask the Secretary of Labor, not the Secretary of Education” is irresponsible policy development, founded on rhetoric when it should be based on a reasoned understanding of the purpose of rehabilitation services and the challenges VR professionals face in their goal to provide quality rehabilitation services. The transfer of RSA will result in a social experiment that could adversely affect millions of individuals currently reliant on vocational rehabilitation services.
The mission and strategies of the Department of Labor are necessarily distinct from those of the Department of Education.
Although employment is the eventual goal, the programs and services administered by the Rehabilitation Services Administration (RSA) are more than just employment programs, and are more in line with those services provided by the Department of Education. Most non-disabled persons receive their “rehabilitation services” through the fundamental K-12 and post-secondary education programs administered by the Department of Education, which help them develop self-confidence, self-advocacy, and social skills, and expose them to a variety of career choices. They are subsequently able to identify a viable career objective and independently maximize their employment potential. For people with disabilities, the RSA fills the gap within the Department of Education by providing quality rehabilitation training and support services, ideally in cohort with educational systems, to maximize the employment potential of persons with disabilities.
When individuals become unemployed or have difficulty obtaining employment, the Department of Labor (DOL) -- as an extension, not substitute, to the provision of quality education and rehabilitation services -- considers an individual's existing employable skills, perhaps offers them some specific skills training, and then uses a turn-key process to help them regain or obtain employment. This re-entry model may be sufficient for non-disabled individuals, but proper rehabilitation services for people with disabilities may require many months or sometimes years in order for an individual to adjust to his or her disability and to become competitively employed. The DOL turn-key model is exceptionally insufficient for individuals with disabilities, especially school-age youth with disabilities and individuals with significant disabilities.
Currant research demonstrates that the most significant challenge to the provision of quality rehabilitation and employment services for youth and adults with significant disabilities revolves around the inability of the Rehabilitation Services Administration to become an integrated functioning entity within the Department of Education, and the ineffective process being used to transition youth with disabilities from school to work. However, with the obvious need to increase RSA’s status within the Department of Education, we, along with the following professional rehabilitation organizations, feel that a move away from the Department of Education will take RSA in the wrong direction.
- Council of State Agencies for Vocational Rehabilitation (CSAVR) Comments
- National Council of State Agencies for the Blind (NCSAB) Comments
- Commission on Rehabilitation Counselor Certification (CRCC) Comments
- Council of Rehabilitation Educators (CORE) Comments
- National Council of State Rehabilitation Councils (NCSRC) Comments
How do we #FIXWIA?
At a minimum, most will agree that we should strike Section 511 -- a minor, but extremely controversial Section of WIA -- and that we should suspend the transfer of RSA to USDOL until sufficient research has been conducted. Striking these two provisions would clear the path for WIA’s passage, which is a desirable result, especially since there is so much greater good in the bill.