by Anil Lewis
It has been legal to pay people with disabilities subminimum wages since the passage of the Fair Labor Standards Act (FLSA) in 1938. Specifically, for more than seventy years Section 14(c) of the FLSA has allowed the secretary of labor to grant special wage certificates to entities that provide employment to workers with disabilities, permitting them to pay their disabled workers at rates that are lower than the federal minimum wage and excluding people with disabilities from the workforce protection of the federal minimum wage enjoyed by all other Americans.
At the time backers argued that this exemption was necessary because people with disabilities could not be competitive employees, and supporters of the minimum wage exemption still make this argument today. However, the overall nature of the job market has changed, the use of assistive technology has made it possible for people with disabilities to perform any number of competitive jobs, and the rehabilitation system has developed new job-training and placement strategies to employ workers with even the most significant disabilities. Yet people with disabilities continue to be employed at subminimum wages. In fact, hundreds of thousands of Americans with disabilities are currently employed at wages less than the federal minimum wage. If provided the proper training, support services, and opportunities, these employees could be employed in competitive, integrated work environments, receiving competitive wages that would allow them to leave the rolls of social programs like welfare, Social Security, and Supplemental Nutritional Assistance (formerly the Food Stamp Program).
Section 14(c) of the Fair Labor Standards Act is an anachronistic provision that is contrary to the progressive disability legislation for which we have fought and which has now been passed. The proper focus of disability policy is to move Americans with disabilities beyond what President George W. Bush called the “soft bigotry of low expectations.” America has acknowledged the vocational capacity of people with disabilities through the passage of the Rehabilitation Act of 1973. The nation supports the provision of a quality education through the Education for All Handicapped Children Act, passed in 1975, now called the Individuals with Disabilities Education Act (IDEA). The Americans with Disabilities Act (ADA), passed in 1990 and hailed as the Civil Rights Act for people with disabilities, prohibits discrimination on the basis of disability in employment, state and local government, public accommodations, commercial facilities, transportation, and telecommunications. Yet the law still allows the exploitation of workers with disabilities through the discriminatory payment of subminimum wages.
To correct this injustice, the National Federation of the Blind has long fought for the phasing out of the subminimum wage exemption. Recently another battlefront emerged as the Senate Committee on Health, Education, Labor and Pensions (the HELP Committee) considered reauthorization of the Workforce Investment Act (WIA). In an ill-conceived attempt to deter the placement of young people with disabilities in subminimum wage employment, a proposed amendment to the Rehabilitation Act, Section 511 of Title V of WIA, was put forward by the HELP Committee. As quoted in Resolution 2011-17, passed unanimously by the 2011 Convention of the National Federation of the Blind, The language neither changed the status quo nor meaningfully prevented the placement of youth with disabilities on the subminimum-wage employment track, and would have resulted in enormously negative, though unintended, consequences. On July 26, 2011, members of the National Federation of the Blind made our position clear to the Senate and the public by conducting a total of twenty-one informational protests in sixteen states: Alaska, Arizona, Colorado, Georgia, Iowa, Illinois, Kansas, Kentucky, Maryland, Minnesota, North Carolina, Oregon, Pennsylvania, Tennessee, Washington, and Wyoming. The protests were held on the twenty-first anniversary of the signing of the Americans with Disabilities Act at the primary district office locations of United States senators serving on the HELP Committee. As a result of our action, consideration of Section 511 has been indefinitely postponed.
We are now leveraging the debate surrounding Section 511 to address the true root of the problem--Section 14(c) of the FLSA. We recognize the difficult political climate in which we are operating, but we choose to create our own political reality. We will deal with this problem by working toward the passage of the recently introduced Fair Wages for People with Disabilities Act, H.R. 3086, to phase out Section 14(c) of the FLSA. Here is the press release announcing the introduction of this historic legislation:
(October 4, 2011): Congressman Cliff Stearns (R-FL) and Congressman Tim Bishop (D-NY) today introduced the Fair Wages for Workers with Disabilities Act of 2011 (H.R. 3086). The bill would phase out Section 14(c) of the Fair Labor Standards Act (FLSA), which allows employers holding special wage certificates to pay their workers with disabilities less than the federal minimum wage.
Dr. Marc Maurer, president of the National Federation of the Blind, said: “The Fair Wages for Workers with Disabilities Act is a long-overdue effort to correct an injustice written into a law meant to protect all American workers from abuse and exploitation. Workers with disabilities were excluded from the protections of the Fair Labor Standards Act because of the false belief that we cannot be as productive as Americans without disabilities. Courage and creativity are required to replace the misguided benevolence that has historically shaped policies toward people with disabilities with real opportunity for our equal employment and full participation in the workplace. We applaud Representatives Stearns and Bishop, and we hope that a significant majority of their colleagues possess the courage and creativity to end over seventy years of exploitation of people with disabilities.”
“Simple fairness and decency require that workers with disabilities receive equal pay for equal work,” said Congressman Stearns. “I am asking all of my colleagues to join me in this historic effort to end wage discrimination against workers with disabilities once and for all.”
“Ensuring that Americans with disabilities receive equal pay for equal work is more than a matter of basic fairness; it’s a long-overdue acknowledgement of the value disabled Americans contribute to our workplaces every day,” said Congressman Tim Bishop. “I hope all of my colleagues will support this bipartisan effort to correct over seventy years of injustice.” For more information about the Fair Wages for Workers with Disabilities Act and the National Federation of the Blind, visit <www.nfb.org>.
Altering more than seventy years of institutionalized and fallacious thinking about the capacity of people with disabilities will not be a simple task. Allowing the legal payment of subminimum wages is a de facto assertion that people with disabilities cannot be productive employees. This incorrect assumption is a self-fulfilling prophecy that makes it nearly impossible for society to accept the truth that even people with the most significant disabilities can be competitively employed. But in the National Federation of the Blind we specialize in making the impossible possible.
Many are asking, “What will happen to those with disabilities who are currently employed under these special subminimum wage certificates?” The real question to be answered is, “What should happen to those people with disabilities currently being exploited under this unjust provision?”
The fundamental fallacy is in considering subminimum-wage work as true employment. The entities that engage in this practice are not employers. They are daycare providers for people with disabilities, offering days filled only with repetitive drudgery for sometimes third-world wages and leading nowhere for their workers but toward despair and greater dependence on social programs and public assistance. Imprisoning these workers in this adult daycare environment keeps them from acquiring the necessary training and opportunity to identify the skills or job that could lead to their competitive, integrated employment at the federal minimum wage or higher. If social supports are necessary for some of these people to sustain themselves, then society should be developing methods that will make it possible for them to gain real skills, to identify appropriate jobs, and to contribute in a meaningful way to the system that supports them.
Many of these sheltered workshops could be more accurately described as prisons, albeit without bars, than as actual workplaces. The data show that fewer than 5 percent of the prisoners escape. This means that 95 percent of the people currently toiling in subminimum-wage work will spend their entire working lives in these facilities. They will never receive the needed services, training, or support to become real workers, doing real jobs, and earning real wages.
We must eliminate this legalized wage discrimination in order to shift the paradigm from one maintaining that people with disabilities cannot perform jobs competitively to one that recognizes that, with the proper training, opportunity, and supports, even people with the most significant disabilities can be competitively employed—contributing to an employer's bottom line and adding value to the American economy.
Many businesses have successfully made this paradigm shift by employing people with disabilities at competitive wages in quality work environments. They have demonstrated (contrary to the convictions of those who would have this exploitation continue) that they can maintain employment of people with disabilities at the federal minimum wage or higher while still maintaining their own profitability. The public and private dollars they receive are spent to increase the maximum employment opportunity for people with disabilities so that all employees can take pride in becoming beneficial participants in society, not beneficiaries.
Rather than adopting a new business model that values each employee by paying at least the federal minimum wage, other employers prefer to continue exploiting the productivity of workers with disabilities. In addition to artificially padding profits by exploiting subminimum-wage labor, these entities generate further revenue through soliciting philanthropic donations and obtaining federal funding. It should be obvious that any business unable to remain lucrative with public and private money constantly flowing into its coffers while paying the employees at least the federal minimum wage should not be in business at all. The failure of such an entity is likely to be the result of poor management, not the payment of competitive wages or the incapacity of its workers with disabilities. Such shoddy operations should not be subsidized by a federal law that allows them to exploit workers with disabilities by using them as a fundraising resource, as a justification for the lavishing of federal largesse, and as sweatshop laborers.
As we have repeatedly demonstrated throughout the history of the National Federation of the Blind and the disability rights movement, when employers set high expectations, creative strategies emerge. When proper training is provided, proper supports are available, and proper job match has been identified, even people with the most significant disabilities can contribute to the workplace and to society.
The Employment First movement is a prime example of what can be done when the proper expectations are set. Employment First is founded on the principle that all people with disabilities should have the freedom, support, and opportunity to achieve competitive, integrated employment first. This means that those with developmental disabilities work and receive minimum wage or greater commensurate with other employees.
One of the strategies that have been successful in assisting people with disabilities to obtain gainful employment at a competitive wage is the Supported Employment Program. Supported Employment is rooted in the premise that all individuals, including those with the most severe disabilities, can and should be an integral part of their communities—productive and valuable. Benefits of Supported Employment for people with developmental disabilities can be extraordinary—the right job can quite literally change someone’s life.
Customized Employment is another tool that has resulted in competitive placement of those with significant disabilities. Customized Employment is a flexible process designed to personalize the employment relationship between a job candidate and an employer in a way that meets the needs of both. It is based on an individualized match of the strengths, conditions, and interests of a job candidate with the identified business needs of an employer. Customized Employment uses an individualized approach to employment planning and job development—one person at a time, one employer at a time.
Employment First, Supported Employment, and Customized Employment are innovative job placement strategies that are present in almost every state in the union. Unfortunately, these innovative approaches are competing against an entrenched system founded on the belief that people with disabilities are defective, a belief supported by a billion-dollar industry exploiting subminimum wage labor and perpetuating negative stereotypes about Americans with disabilities.
People with disabilities want the opportunity to contribute toward making America a better nation, just like every other American citizen. Rather than allowing the labor of people with disabilities to be devalued, America needs to incentivize the development of the progressive employment tools, strategies, and supports that make it possible for every American citizen, regardless of disability, to earn a fair wage. Congress must pass the Fair Wages for People with Disabilities Act, and the National Federation of the Blind will work tirelessly until we achieve that goal.