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Braille Monitor

Vol. 59, No. 3                                       March 2016

Gary Wunder, Editor

Distributed by email, in inkprint, in Braille, and on USB flash drive, with the audio version being available in both Spanish and English (see reverse side) by

The National Federation of the Blind

Mark Riccobono, President

telephone: (410) 659-9314
email address: nfb@nfb.org
website address: http://www.nfb.org
NFBnet.org: http://www.nfbnet.org
NFB-NEWSLINE® information: (866) 504-7300
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Letters to the President, address changes, subscription requests, and orders for NFB literature should be sent to the national office. Articles for the Monitor and letters to the editor may also be sent to the national office or may be emailed to gwunder@nfb.org.

Monitor subscriptions cost the Federation about forty dollars per year. Members are invited,
and nonmembers are requested, to cover the subscription cost. Donations should be
made payable to National Federation of the Blind and sent to:

National Federation of the Blind
200 East Wells Street at Jernigan Place
Baltimore, Maryland 21230-4998

THE NATIONAL FEDERATION OF THE BLIND KNOWS THAT BLINDNESS IS NOT THE CHARACTERISTIC THAT DEFINES YOU OR YOUR FUTURE. EVERY DAY WE RAISE THE EXPECTATIONS OF BLIND PEOPLE, BECAUSE LOW EXPECTATIONS CREATE OBSTACLES BETWEEN BLIND PEOPLE AND OUR DREAMS. YOU CAN LIVE THE LIFE YOU WANT; BLINDNESS IS NOT WHAT HOLDS YOU BACK. THE NATIONAL FEDERATION OF THE BLIND IS NOT AN ORGANIZATION SPEAKING FOR THE BLIND--IT IS THE BLIND SPEAKING FOR OURSELVES.

        ISSN 0006-8829


Each issue is recorded on a thumb drive (also called a memory stick or USB flash drive). You can read this audio edition using a computer or a National Library Service digital player. The NLS machine has two slots--the familiar book-cartridge slot just above the retractable carrying handle and a second slot located on the right side near the headphone jack. This smaller slot is used to play thumb drives. Remove the protective rubber pad covering this slot and insert the thumb drive. It will insert only in one position. If you encounter resistance, flip the drive over and try again. (Note: If the cartridge slot is not empty when you insert the thumb drive, the digital player will ignore the thumb drive.) Once the thumb drive is inserted, the player buttons will function as usual for reading digital materials. If you remove the thumb drive to use the player for cartridges, when you insert it again, reading should resume at the point you stopped.

You can transfer the recording of each issue from the thumb drive to your computer or preserve it on the thumb drive. However, because thumb drives can be used hundreds of times, we would appreciate their return in order to stretch our funding. Please use the return envelope enclosed with the drive when you return the device.


Orlando Site of 2016 NFB Convention

The 2016 convention of the National Federation of the Blind will take place in Orlando, Florida, June 30 to July 5, at the Rosen Shingle Creek Resort, 9939 Universal Boulevard, Orlando, Florida 32819-9357. Make your room reservation as soon as possible with the Shingle Creek staff only. Call (866) 996-6338.

The 2016 room rates are singles and doubles, $83; and for triples and quads $89. In addition to the room rates there will be a tax, which at present is 13.5 percent. No charge will be made for children under seventeen in the room with parents as long as no extra bed is requested. The hotel is accepting reservations now. A $95-per-room deposit is required to make a reservation. Fifty percent of the deposit will be refunded if notice is given to the hotel of a reservation cancellation before May 27, 2016. The other 50 percent is not refundable.

Rooms will be available on a first-come, first-served basis. Reservations may be made before May 27, 2016, assuming that rooms are still available. After that time the hotel will not hold our room block for the convention. In other words, you should get your reservation in soon.

All Rosen Shingle Creek guestrooms feature amenities that include plush Creek Sleeper beds, 40" flat screen TVs, complimentary high-speed internet capabilities, in-room safes, coffee makers, mini-fridges, and hair dryers. Guests can also enjoy a swimming pool, fitness center, and on-site spa. The Rosen Shingle Creek Resort has a number of dining options, including two award-winning restaurants, and twenty-four-hour-a-day room service.

The schedule for the 2016 convention is:

Thursday, June 30       Seminar Day
Friday, July 1                Registration Day
Saturday, July 2           Board Meeting and Division Day
Sunday, July 3              Opening Session
Monday, July 4            Business Session
Tuesday, July 5            Banquet Day and Adjournment

2016 NFB National Convention Preregistration Form

Please register online at www.nfb.org/preregistration or complete all requested information on this form. Print and mail form to the address below.

Registrant Name:                                                                                                                                           
Address:                                                                                                                                                         
City:                                                                                                                                                               
State:  ________________________________________________  Zip: _________________
Phone:                                                                                                                                                            
Email:                                                                                                                                                            

                      I will pick up my registration packet at convention.
                      The following person will pick up my registration packet:
            Pickup Name:                                                                                                           

Please register only one person per registration form.
One check or money order may cover multiple registrations.
   Check or money order (sorry, no credit cards) must be enclosed with registration form(s).

Number of preregistrations                  x $25 =     _________
Banquet tickets                                        x $60 =   __________

                                                                           Total ___                    

All convention preregistration and banquet sales are final (no refunds).

Mail to: National Federation of the Blind
Attn: Convention Preregistration
200 E. Wells Street at Jernigan Place
Baltimore, MD 21230

Registrations must be postmarked by May 31, 2016.

Contents

Vol. 59, No. 3                                       March 2016

Illustration: New Accessible ATM Installed at Jernigan Institute

The 2016 Washington Seminar in Review
by Deja Powell

Legislative Agenda of Blind Americans for the 114th Congress, Second Session

Transitioning to Integrated and Meaningful Employment Act (H.R. 188) (S. 2001)

Accessible Instructional Materials in Higher Education (AIM HE) Act

Equal Access to Air Travel for Service-Disabled Veterans (H.R. 2264)

The Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (“Marrakesh Treaty”)

Moving the Challenge Indoors
by Anil Lewis

Dissecting the Value of Diversity
by Justin Salisbury

The Kenneth Jernigan Convention Scholarship Fund
by Allen Harris

Court Renders Major Decision on the Practice of Paying Subminimum Wages to Disabled Workers

Recipes

Monitor Miniatures

Copyright 2016 by the National Federation of the Blind

New Accessible ATM Installed at Jernigan Institute

Since the introduction of the automated teller machine (ATM), the blind of the nation have been fighting for access to the cash and other services these devices provide. At first we were told there was no product for the banks to buy, and they blamed the manufacturers. We were then told by the manufacturers that there was no demand and that we must go to the banks. Next, we were told that the cost of modifying the hundreds of thousands of machines would be prohibitive and that requiring every ATM to be accessible was an unreasonable demand. When our lawsuits and negotiations got the industry and the government to take notice, we then had to suffer the jokes about those crazy people who wanted to put Braille on drive-up ATMs. Slowly, however, we began to reach settlements with banks, and while many ATMs are owned by major banking institutions, many are privately owned. Such is the case with Cardtronics, a company which owns and operates more than 53,000 ATMs across the country.

As reported in the August-September 2015 issue of the Braille Monitor, the National Federation of the Blind reached an amicable settlement with Cardtronics, and one of the promises made by the company was the installation of an ATM at our national headquarters in Baltimore. That machine was installed, and on January 22, 2016, it was officially unveiled and is now available to everyone who works at or visits the Jernigan Institute.

The 2016 Washington Seminar in Review

by Deja Powell

From the Editor: Normally it falls to the editor to write about our mid-year convention of the National Federation of the Blind, AKA the Washington Seminar. This year I had a volunteer, and I really appreciate her work and her most valuable contribution.

Deja is a winner of a scholarship in 2002 and a tenBroek winner in 2014. Here is what she writes about our work to let lawmakers hear from the blind:

Utah is known for its snow; the mountains surrounding Salt Lake City are usually covered in the powdery white stuff by January. At this time people begin flocking to the state for some of the best skiing, snowboarding, and snowshoeing in the world. As the snow begins to pile atop the Utahan Mountains, I know it’s time to gear up for the National Federation of the Blind’s annual Washington Seminar. The NFB Washington Seminar is where a few hundred of the most ambitious and feisty blind people in the country gather on Capitol Hill to make things happen.

This year, however, would be like no other in the organization’s history: days before the annual meeting, the news started shifting its attention to Jonas (not Kevin, Joe or Nick, the Jonas Brothers), but winter storm Jonas, which was headed directly for the Washington DC/Baltimore area. Meteorologists were predicting one of the largest snowstorms in the history of our nation’s capital was going to hit the week of the NFB Washington Seminar. Many of us hoped that the news was wrong—that Jonas wasn’t going to be all he was cracked up to be. As the time came to pack and fly, most of us realized Jonas was not all talk. The storm dumped not inches, but feet of snow on the Washington DC/Baltimore area, and quickly. Flights across the country were delayed, then cancelled, then delayed and cancelled again. Airports were shut down on Friday and Saturday, and all city transportation suspended. Many of our fellow Federationists were finding it difficult if not impossible to make their way to DC. The word impossible, however, doesn’t really resonate with Federationists, so many fought to get there and do the work that had to be done.

With major airports shutting down, activities that would normally have taken place on Saturday, Sunday, and Monday were significantly altered. One event was a seminar to train state affiliate legislative coordinators. Here is how Parnell Diggs, our director of government affairs, described the event and the on-the-fly changes made to make it work:

Prior to Washington Seminar, a legislative workshop is held for representatives from each state affiliate to learn more about the legislative agenda of the National Federation of the Blind. This year, the workshop was scheduled for January 23, 24, and 25. Due to the impending storm, President Riccobono suggested inviting workshop participants to arrive early in order to beat the blizzard. This strategy proved effective, as more than twenty of our directors made it to the Jernigan Institute before travel became treacherous. For those who did arrive early, the workshop was filled with energy and enthusiasm. President Riccobono welcomed participants at a special meeting at 4:00 p.m. on Friday. Since the group arrived twenty-four hours early, members decided to begin the workshop on Saturday morning rather than waiting until the originally scheduled start time of 6:00 p.m. Joining us on that Saturday morning were not only our fearless travelers, but legislative directors forced to remain at home until they could fly into DC. They joined us thanks to the hastily-arranged conference call put together by our team. For those present the blizzard conditions did nothing to curtail the service and consumption of meals, cookies, and coffee during the weekend. Nothing could match the energy of the logistics team, which masterfully managed the logistics with precision, grace, and unflagging goodwill.

We lost electric power during the afternoon session on Saturday, but Federationists continued working as if nothing was out of the ordinary. The Harbor Room fireplace had been stocked in case heat was needed, but thankfully the power was restored before dinner.

On Monday morning the chartered bus arrived to transport Federationists to Washington, DC, but it could not get closer than a quarter of a mile to the Jernigan Institute. Thus, Federationists walked through the snow to reach the bus. Four adults and one child from Hawaii received the admiration of the entire assembly, since their “winter clothes” were not designed for walking through piles of shoveled snow that were four feet high in some places.

As we so often remind our friends and even our opponents, we are a Federation family. Attitudes remained positive throughout the weekend, and while two dozen Federationists were literally snowed-in at the Jernigan Institute, the 2016 legislative priorities were thoroughly discussed, and everyone had a blast.

After the government announced they would be closed on Monday, with several appointments cancelled for the remainder of the week, discouragement could have set in, but it didn’t. Some members of the Federation, myself included, took advantage of the rare opportunity to go sledding down Capitol Hill. After climbing through mini-mountains of snow on street corners and finally getting to the Capitol, I found an awesome teenage girl who let me borrow her plastic sled to take a quick trip down the Hill. With a big grin on my face, I began climbing the very icy and slick Hill. I barely avoided falling a few times in the process, but I finally made it to the top. I asked a nice guy up there to line me up so I would not run over any children on my way down. Once aligned, he gave me a pretty big push, and I was on my way. Halfway down I spun-out, came to a stop, and pushed myself the rest of the way down. It was a great, empowering moment for me—a reminder that I can live the life I want, even if it requires borrowing a sled or two along the way.

But now it was time to get to work. Prior to the Great Gathering-In meeting, the student division took care of business. Despite the weather, nothing could stop the National Association of Blind Students (NABS) from getting together and having a good time. Nearly fifty students made it to DC for the NABS annual Washington Seminar meeting, twenty-five of whom were sponsored by the NFB and would not have been able to attend without the organization’s financial support. The annual student meeting included information on the new Self-Advocacy in High Education Toolkit Version 1.0, which serves as a support to blind college students in an effort to prevent or mitigate accessibility barriers on campus. You can find more information about the toolkit at <https://nfb.org/self-advocacy-higher-education>. The meeting also included a speech from President Mark Riccobono, who encouraged students to step up and take on more leadership roles. Student Division President Sean Whalen also spoke to those in attendance about happenings at the national level and the KNFB Reader App. The student meeting included several breakout sessions covering a variety of topics including employment, internships, self-advocacy, vocational rehabilitation services, and more. On Tuesday evening the student division hosted the NABS Café, an annual social event for students and supporters, which included an auction, raffle, and live entertainment. Despite the weather, the attendance matched that of previous Washington Seminar student meetings.

For the first time in history, the annual Great Gathering-In meeting was held on Tuesday morning, with a smaller but powerful group of Federationists ready to learn, act, and change the laws of the land. President Mark Riccobono welcomed everyone and thanked all for making such an enormous effort to attend. He specifically welcomed two-year-old Eliana from Hawaii, who is blind and attending her first-ever Washington Seminar. He suggested, “If anybody asks you why you bothered to trudge through the snow to get here, you tell them about Eliana; it’s her future we’re working for.” In his welcome speech, President Riccobono talked about a variety of legal cases affecting the lives of blind parents, children, and adults, addressing employment barriers blind people face, such as not receiving equal wages, inaccessible technology for the blind, lack of internet regulations, lack of accessibility in transportation (including Uber), and the need for accessibility in voting rights. He ended by saying, “We do all this work and more because it is personal to us, and we are here because it matters in our own lives and in the lives of others.” He continued, “We are here because for seventy-five years we have set the standard, and we continue to raise expectations for blind people across the country. We are here because we seek to live the lives we want!”

Jernigan Institute Executive Director Anil Lewis also spoke to the crowd about the various programs going on at the Jernigan Institute, including STEM2U, NFB EQ <http://www.blindscience.org/NFBEQ>, NFB Bell Academy <https://nfb.org/bell-academy>, and other academic-focused programs. Anil declared, “It’s not our inability to see that defines our future; it’s the poor education systems that don’t challenge us, that don’t set high expectations for us to meet…Blind people have the intellect, knowledge, ability, talent, interest, desire, and passion to be involved in STEM subjects.”

Fred Schroeder followed by announcing that the United States will be hosting the World Blind Union this summer in Orlando, Florida, and encouraged Federationists to attend. President Riccobono also announced that this year’s NFB National Convention will be held in Orlando, Florida, Thursday, June 30 through Tuesday, July 5, at the Rosen Shingle Creek Resort and that pre-registration will open on March 1.

Immediate past president Dr. Marc Maurer addressed the Great Gathering-In by discussing important legal issues facing the blind and how the National Federation of the Blind is working on these, including subminimum wage issues, Amazon accessibility, and parental rights.

Executive Director of Advocacy and Policy, John Paré, welcomed all who fought the storm to make it to Washington and announced the use of a new App for NFB Washington Seminar, “NFB in DC,” designed to set up and track appointments. Next, Parnell Diggs, director of government affairs, addressed the crowd regarding logistics of the week and welcomed all to DC. He encouraged attendees to check with individual senators and representatives to be sure appointments were still on as scheduled.

Parnell then introduced his legislative team: Rose Sloan and Gabe Cazares. Rose started things off by talking about the first of four issues: equal work for equal pay, or the Transitioning to Integrated and Meaningful Employment (TIME) Act (H.R. 188; S. 2001). Rose declared, “The blind and all people with disabilities deserve an honest wage. We are going to educate and advocate; the NFB will get the TIME Act passed.” She continued, “For far too long the blind have been paid less than the minimum wage, and it is time to end this. Section 14(c) of the Fair Labor Standards Act must be repealed.”

Rose also discussed the second issue, Equal Access to Air Travel for Service-Disabled Veterans (H.R. 2264). The Space Available Program allows members of the active military, some family members, Red Cross employees, and retired armed services members to travel on military aircraft if space is available. However, members of the military who were classified as 100 percent service disabled before September 23, 1996, do not qualify for this program because they are not considered “retired.” Rose declared that both the TIME Act and the Space Available proposal are in need of co-sponsors.

Gabe Cazares, the newest member of the government affairs team, discussed the two remaining issues. First is the Accessible Instructional Materials in Higher Education (AIM HE) Act, which will generate guidelines for higher education institutions when implementing new technology to ensure it is accessible to blind and print-disabled students. Gabe notes that far too often schools deploy inaccessible technology, then modify another version for blind students, and tragically this usually occurs weeks or even months into class. This has the effect of creating a “separate-but-equal” landscape with nearly impenetrable barriers. Gabe went on to say, “Blind students will not be relegated to second-class citizenship in employment or the classroom. All technology needs to be accessible to all students.”

Gabe also talked about the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled. The Marrakesh Treaty is an international copyright treaty that will give blind Americans access to millions of published works and improve the distribution of books across the globe. Unlike the United States, where copyright code includes the Chafee Amendment and other exceptions, two-thirds of the world’s nations do not have domestic copyright laws that permit making copies for the blind, limiting the number of works available in an accessible format. Gabe concluded by encouraging all of us to get moving to push through all four of our important issues.

John Paré went through all of the information in the legislative packets this year, including fact sheets and letters of support. President Riccobono announced the congressional reception would be cancelled due to the weather. He also encouraged everyone to attend the NABS Café that evening to support the student division of the National Federation of the Blind. He then introduced the director of public relations, Chris Danielson, who discussed an Op-Ed written by President Riccobono that was released that day on the Congress Blog <http://thehill.com/blogs/congress-blog/civil-rights/266943-inequality-and-indifference>. The article includes information on signing the NFB’s We the People Petition <https://petitions.whitehouse.gov/petition/direct-us-department-justice-promptly-release-ada-internet-regulations>, which needs 100,000 signatures by mid-February. Chris encouraged everyone to share the Op-Ed piece and the Washington Seminar experience on social media under the hashtag #NFBWS16. He ended his remarks by saying: “Washington knows we’re here, now let us let the world know.”

President Riccobono concluded the meeting with a few last minute announcements, encouraging participants to share their experiences on social media, noting the demonstration of a new Braille display being debuted at the seminar, and telling us that Anil Lewis had eaten all the peanut butter pie that was available.

On Tuesday, Wednesday, and Thursday the nation’s blind took over Capitol Hill. In fact, we were pretty much the only ones brave enough to go to the Congress that week. Many affiliates met with Congress and House staffers, and a few got to meet face-to-face with their representatives and senators. Despite the weather, lots of progress was made on some of the big issues, and Federationist fought hard to share the concerns our elected officials can address that truly effect the blind.

As a dancer I have grown to love the quotation by Vivian Greene, “Life isn't about waiting for the storm to pass...It's about learning to dance in the rain.” It was a lot more than rain in Washington, DC, for this Washington Seminar, but record-breaking snow accumulation covering our nation’s capital couldn’t stop members of the National Federation of the Blind from dancing. Many of my family and friends asked me why I was going to Washington, DC, when the weather was so bad and Congress wouldn’t even be in session; some went so far as to say I was being ridiculous for going. My response: “What we’re going to Washington for will outlast the storm. The issues we are fighting for will be there long after the snow melts. The blind of our country have been told far too many times that we can’t, that we won’t, that we shouldn’t, but we are not ready to back down…no matter the barriers. Snowzilla can’t stop us!” And, you know, it didn’t.

Legislative Agenda of Blind AmericansPriorities for the 114th Congress, Second Session

Transitioning to Integrated and Meaningful Employment Act (H.R. 188) (S. 2001)

Current labor laws unjustly prohibit workers with disabilities from reaching
their full vocational and socioeconomic potential.

Antiquated public policy encourages workers with disabilities to rely on government assistance such as Supplemental Security Income (SSI) and Medicaid. Section 14(c) of the Fair Labor Standards Act, passed in 1938, authorizes the Secretary of Labor to issue Special Wage Certificates to certain entities, permitting them to pay workers with disabilities subminimum wages. Ninety-five percent of 14(c)-certificate-holding entities are nonprofit “sheltered workshops” (segregated work environments)1 that pay over 300,000 workers with disabilities as little as pennies per hour, leading many of those workers to seek government assistance.

Current training and employment strategies assist those with even the most significant disabilities to obtain integrated and meaningful employment. Workers in sheltered workshops often perform mundane tasks that do not use their existing skills, interests, and talents. However, innovative strategies such as customized and supported employment, when paired with appropriate rehabilitative services, training, tools, and expectations allow employees with disabilities to be as productive as their nondisabled coworkers.2

A growing number of former 14(c)-certificate-holding entities have transitioned their business models into effective disability training programs. No entities in Vermont or New Hampshire use 14(c) certificates. Seminars such as the Vermont Conversion Institute highlight entities that have successfully phased out reliance on Section 14(c) certificates. This transition not only benefits employees with disabilities but the overall productivity of the organizations that employ them.3 Research shows that sheltered workshops cost more to society than alternatives. Moreover, consumers who were not exposed to the low expectations of sheltered, subminimum-wage environments earn more money than peers who were in those environments.4

Policy and public and private sentiment are moving into a new era of proven competitive, integrated employment for people with disabilities. In August 2012 the National Council on Disability unanimously recommended that the Department of Labor immediately stop issuing new Special Wage Certificates and that the “Section 14(c) program be phased out.”5 In September 2015 a committee tasked by Congress to increase competitive integrated employment opportunities for workers with disabilities recommended the phase-out of Section 14(c).6 In addition, over eighty disability organizations support the repeal of Section 14(c) of the Fair Labor Standards Act.7
           
The Transitioning to Integrated and Meaningful Employment Act:

Discontinues the issuance of new Special Wage Certificates. The Secretary of Labor will no longer issue Special Wage Certificates to new applicants.

Phases out the use of Special Wage Certificates over three years. Three years after the enactment of this Act, no 14(c)-certificate-holding entity will pay workers with disabilities subminimum wages, allowing them to transition to the proven model of competitive, integrated employment for all of their employees with disabilities.

Repeals Section 14(c) of the Fair Labor Standards Act. Three years after the law is enacted, the practice of paying workers with disabilities subminimum wages will be officially abolished. This will result in the development of integrated and meaningful employment opportunities that encourage people with disabilities to reach their full vocational and socioeconomic potential.

To cosponsor H.R. 188 in the House of Representatives, contact:
Scot Malvaney, policy director, Office of Congressman Gregg Harper (R-MS)
Phone: (202) 225-5031, Email: <Scot.Malvaney@mail.house.gov>
 
To cosponsor S.2001 in the Senate, contact:
Dan Auger, Legislative Assistant, Office of Senator Kelly Ayotte (R-NH)
Phone: (202) 224-3324, Email: <Daniel_Auger@Ayotte.senate.gov>

For more information, contact:
Rose Sloan, Government Affairs Specialist, National Federation of the Blind
Phone: (410) 659-9314, Extension 2441, Email: <rsloan@nfb.org>
 
For more information visit: <www.nfb.org/TIME>

__________________________________________________

1. United States Department of Labor. “Wage and Hour Division (WHD) Community Rehabilitation Programs (CRPs) List.” Last modified October 1, 2015. http://www.dol.gov/whd/ specialemployment/CRPlist.htm.

2United States Department of Labor. “Customized Employment Works Everywhere.” Last modified October 2009. https://www.hdi.uky.edu/setp/materials/vignette_v3_blue_508_FINAL.pdf.

3Szlyk, Janet. “Letter of Support Issued by the Chicago Lighthouse.” Last modified September 30, 2011. <http://nfb.org/Images/nfb/documents/word/Chicago_Lighthouse_Support_letter.doc>.

4Cimera, Robert E.; Wehman, Paul; West, Michael; & Burgess, Sloane. “Do Sheltered Workshops Enhance Employment Outcomes for Adults with Autism Spectrum Disorder?” Autism. 16 (2012): 87.

5National Council on Disability. “National Council on Disability Report of Subminimum Wages and Supported Employment.” Last modified August 23, 2012. <https://www.ncd.gov/publications/ 2012/August232012>.

6Advisory Committee on Increasing Competitive Integrated Employment for Individuals with Disabilities. “Interim Report.” Last modified September 15, 2015. <http://www.dol.gov/odep/ pdf/20150808.pdf>.

7National Federation of the Blind. “The following groups support the repeal of Section 14(c) of the Fair Labor Standards Act.” Last modified February 12, 2015. <https://nfb.org/groups-supporting-repeal-section-14c-fair-labor-standards-act>.

Accessible Instructional Materials in Higher Education (AIM HE) Act

Until colleges and universities drive the demand for accessible instructional materials, blind college students will be denied access to critical course content.

Technology has fundamentally changed the education system. The scope of instructional materials used at institutions of higher education has expanded. Curricular content comes in digital books, PDFs, webpages, etc., and most of this content is delivered through digital databases, learning management systems, and applications. The print world is inherently inaccessible to students with disabilities, but technology offers the opportunity to expand the circle of participation. Studies have found that, of the six million plus students with print disabilities in the system, the number who go on to pursue postsecondary education is growing.

Blind students are facing insurmountable barriers to education. Instead of fulfilling the promise of equal access, technology has created more problems than the print world ever did. Data show that students with disabilities face a variety of challenges, including matriculation failure, solely because colleges and universities are sticking with the ad-hoc accommodations model instead of embracing accessibility. Schools deploy inaccessible technology and then modify another version for blind students, usually weeks or even months into class, creating a “separate-but-equal” landscape with nearly impenetrable barriers. With only a 20 percent employment rate, blind students should not be denied access by the innovations that could have ensured full participation.

Institutions of higher education need help to identify accessible material and comply with nondiscrimination laws. Section 504 of the Rehabilitation Act and Titles II and III of the Americans with Disabilities Act require schools to provide equal access, and in 2010, the US Departments of Justice and Education clarified that the use of inaccessible technology is prohibited under these laws. In the five years since, over a dozen institutions have faced legal action for using inaccessible technology, and complaints are on the rise. Most litigation ends with a commitment from the school to embrace accessibility, but that commitment does little in a vast, uncoordinated higher education market that mostly forgets about blind students.

Accessibility solutions are available, but guidelines are sorely needed to guide the market. Equal access requirements have no criteria for accessibility that schools can use when selecting technology. Innovations in text-to-speech, refreshable Braille, and other accessibility features are widely available, but developers and manufacturers will incorporate only solutions that are demanded by the market. Accessibility guidelines are needed so that schools can streamline demand, stimulate the market, and better identify accessible material. If schools seeking to avoid litigation embrace this path to compliance, blind students will truly attain equal access.

Accessible Instructional Materials in Higher Education Act:

Develops accessibility guidelines for instructional materials used in postsecondary education.
A purpose-based commission is tasked with developing accessibility criteria for instructional materials and the delivery systems/technologies used to access those materials. Additionally, the commission is tasked with developing an annotated list of existing national and international standards so that schools and developers can identify what makes a product usable by the blind.

Provides incentive for institutions of higher education to follow the guidelines.
Institutions of higher education that use only technology that conforms with the guidelines will be deemed in compliance with the provisions of Section 504 of the Rehabilitation Act and Titles II and III of the Americans with Disabilities Act that pertain to schools’ use of technology.

Offers flexibility for schools while reiterating that pre-existing obligations still apply.
Colleges and universities are permitted to use material that does not conform to the guidelines as long as equal access laws are still honored. Conformity with the AIM HE guidelines is only one path to compliance; schools can pursue a different path, but will forfeit the safe harbor legal protection.

 Remove Barriers to Equality in the Classroom.
Sponsor the Accessible Instructional Materials in Higher Education Act.

For more information contact:
Gabe Cazares, government affairs specialist, National Federation of the Blind
Phone: (410) 659-9314, Extension 2206, Email: <gcazares@nfb.org>

For more information visit: <www.nfb.org/aim_he>

Equal Access to Air Travel for Service-Disabled Veterans (H.R. 2264)

The Space Available Program unjustly denies 100 percent service-disabled veterans the opportunity to participate.

One hundred percent service-disabled veterans are not entitled to air travel privileges to which other members of the military have access. The Space Available Program allows members of the active military, some family members, Red Cross employees, and retired armed services members to travel on military aircraft if space is available. However, members of the military who were classified as 100 percent service disabled before September 23, 1996, do not qualify for this program because they are not considered “retired.”

This exclusion denies 100 percent service-disabled veterans discharged before September 23, 1996, a privilege to which they would be entitled had they not been disabled during service. Those service members who were disabled during active duty and were medically discharged prior to September 23, 1996, did not have the chance to stay on active duty, to be classified as “medically retired,” or to fulfill the twenty years requirement to become qualified for this program. These men and women have earned the right to space-available travel just as others have because they sacrificed so much for our country.

Military aircraft are already equipped to accommodate passengers with disabilities. Retired military personnel, their family members, and Red Cross workers with disabilities are already permitted to use the Space Available Program, and according to the AMC Space-Available Handbook & FAQ’s, “Every effort shall be made to transport passengers with disabilities who are otherwise eligible to travel.” Therefore, permitting 100 percent service-disabled veterans the opportunity to ride on military aircraft if space is available will not cause any new burden to the program.

The National Defense Authorization Act provides the platform to achieve the goal of this bill. In a letter dated November 3, 2015, Bob Dole, a decorated World War II veteran and longtime Senate majority leader, urged Senator John McCain, Chairman of the US Senate Committee on Armed Services, to incorporate this bill into the National Defense Authorization Act (NDAA). Indeed, the House of Representatives’ version of NDAA for fiscal years 2014 and 2015 included the language of H.R. 2264.

Equal Access to Air Travel for Service-Disabled Veterans would:

Provide travel privileges to all 100 percent service-disabled veterans. This bill amends Title 10 of the United States Code to permit veterans who have a service-connected, permanent disability rated as total to travel on military aircraft in the same manner and to the same extent as retired members of the Armed Forces.

HONOR OUR SERVICE-DISABLED VETERANS:
PERMIT THEM TO USE THE SPACE AVAILABLE PROGRAM

Cosponsor H.R. 2264.

To cosponsor H.R. 2264 in the House of Representatives, contact:
Joe Millado, senior policy advisor, Office of Congressman Gus Bilirakis (R-FL)
Phone: (202) 225-5755, Email: <Joe.Millado@mail.house.gov>

For more information, contact:
Rose Sloan, government affairs specialist, National Federation of the Blind
Phone: (410) 659-9314, Extension 2441, Email: <rsloan@nfb.org>

“Brave soldiers made the same sacrifices as their fellow veterans, and their disabilities are a direct result of combat or its aftermath. I believe they should be able to participate in the Space Available program.” – Bob Dole Letter to Senator McCain, November 3, 2015

The Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (“Marrakesh Treaty”)

An international copyright treaty will give blind Americans access to millions of published works and improve the distribution of books across the globe.

Millions of Americans are being denied access to published works.
Despite the ability to convert print books into accessible formats like Braille, audio, and digital copies, over 95 percent of published works are unavailable to people with print disabilities. Literacy and equal participation in society are critical elements of a fulfilling and independent life, but until uniformity is built into the international copyright system, blind Americans will be excluded from accessing works. A blind student seeking to learn Spanish will likely struggle to find an accessible format; a work printed in English may have already been converted into an accessible format overseas, but because copies are not exchanged across borders, domestic entities might need to make a duplicate copy or just might deny access altogether by failing to reproduce the work.

An uncoordinated legal approach prevents the cross-border exchange of accessible books.
Unlike the United States, where copyright code includes the Chafee Amendment and other exceptions, two-thirds of the world’s nations do not have domestic copyright laws that permit making copies for the blind, limiting the number of works available in an accessible format. Moreover, many countries consider distribution of accessible copies an infringement as well, and even amongst nations that permit distribution, limitations vary. Instead of exchanging books across borders, works are needlessly duplicated, and circulation is significantly limited.

The Marrakesh Treaty was adopted to achieve this goal.
On June 27, 2013, a diplomatic conference convened by the World Intellectual Property Organization, (WIPO) in Morocco adopted the Marrakesh Treaty with outspoken support from the US delegation. The treaty, signed by the US on October 2, 2013, currently has eighty-two signatories and has been ratified by fourteen countries. Because the treaty calls for contracting parties to adopt copyright exemptions similar to those found in US law, the administration is developing a ratification package that should call for only a sleek, narrow set of modifications.

The Marrakesh Treaty has broad stakeholder support. Blind people should have full and equal access to all works that enrich lives, further education, and share critical information; the treaty balances this priority with the interests of rights holders. WIPO’s adoption of the Marrakesh Treaty was supported by American-based companies, the international publishing community, legal experts, and blindness advocates. The treaty will have tangible benefits for all involved.

The Marrakesh Treaty calls for contracting parties to provide in their national copyright laws for a limitation or exception that allows for the:

Remove Barriers to Access of Published Works.
Support ratification of the Marrakesh Treaty.

For more information, contact:
Gabe Cazares, government affairs specialist, National Federation of the Blind
Phone: (410) 659-9314, Extension 2206, Email: <gcazares@nfb.org>

 

From the Editor: President Obama reacted to our request and has forwarded the Marrakesh Treaty language to the United States Senate for ratification.

Moving the Challenge Indoors

by Anil Lewis

From the Editor: One of the most liberating experiences of my life occurred after I received a long white cane, received enough instruction to use it, and was given a pass to travel off the campus of the Missouri School for the Blind by myself. For the first time in my life, outside travel did not mean shuffling my shoe along the edge of the sidewalk, holding my arm across my body to protect myself against poles and signs, and fearing with every step that I would find a drop-off or, God forbid, an open manhole. It took some time for me to realize that the cane was not only an outdoor tool but was both effective and necessary when traveling in many indoor environments.

As wonderful as a cane and a dog can be, much information still exists that we have a hard time getting as blind people. What store are we passing in a mall? Where is the closest restroom? Where is a bench I can use while my wife spends hours going through the dress shop? If I am in a crowded banquet hall and leave my chair to run an errand, how do I find that chair without disrupting the festivities by asking a bunch of questions? There is much to be explored in all of this indoor technology that looms on the horizon, and it is no surprise that the Jernigan Institute is playing a leading role in helping to publicize what is available, ensuring that developers have a clear vision of what blind people need in this area, and coordinating efforts to see that the resulting technology is something that blind people really want and need. Here is what the executive director of our Jernigan Institute says about ongoing efforts to encourage the development of indoor travel technology:

Marc Maurer, the immediate past president of the National Federation of the Blind had the audacity to believe in the dream of a blind person independently driving an automobile and established the NFB Blind Driver Challenge™. This groundbreaking initiative of our NFB Jernigan Institute challenged universities, technology developers, and other interested innovators to build interface technologies that empower blind people to drive a car safely and independently. The power of partnering the nonvisual expertise of the National Federation of the Blind with the engineering talent of Dr. Dennis Hong and his graduate students at Virginia Tech, while taking advantage of the innovative navigation capability possessed by the engineers at TORC Robotics, culminated in a demonstration of the capacity of the blind with our current president, Mark Riccobono, becoming the first blind driver on the Daytona International Speedway in January of 2011. We continue to engage mainstream automobile manufacturers with the goal of ensuring nonvisual access to the vehicle control interfaces that would allow blind people to operate them as they introduce more autonomous functionality. Because we first dared to dream of a car that the blind can drive, we are moving ever closer to transforming our dream of driving into reality. Soon, the blind will be able to drive ourselves, our family members, and our friends to work, to school, or to the local mall. Now we are moving the challenge of developing innovative nonvisual wayfinding technology indoors. Our National Federation of the Blind Indoor Navigation Challenge initiative actively explores partnerships that foster the development of technology that can be used by the blind to access information about the indoor environments in which we travel.

Members of the National Federation of the Blind know that blind people effectively use tools and strategies like long white canes, guide dogs, mental mapping, echolocation, and problem-solving skills to acquire and to make use of environmental information to travel safely and independently outdoors and indoors. In fact, the students at our National Federation of the Blind adult rehabilitation training centers learn to effectively use nonvisual travel skills to move independently and confidently throughout most environments without independent access to the information available to the sighted. Yet, technology affords us an opportunity to enhance our travel experience. Sighted individuals have access to an overwhelming amount of information that assists them as they find their way from place to place outdoors and indoors through the use of maps, kiosks, and signage, which although helpful, are inaccessible to blind people. The information related to storefronts, travel gates, retail sales, and personal safety, readily available to the sighted, remain inaccessible to the blind.

Technology has already proven helpful in providing additional environmental information that helps the sighted and the blind alike to move from location to location, as demonstrated by the ever-growing accuracy of talking GPS navigation systems. Many blind people benefit from an assortment of apps and devices that use these to provide environmental information, which assists them to navigate more independently and efficiently throughout their neighborhoods, across the country, and around the world. The audible instructions, “Move to the far right lane. In 800 feet, turn right onto St. Paul Street,” “Pothole ahead,” and “Left lane closed,” almost makes it seem possible for a blind person to drive today. Unfortunately, GPS technology has proven to be ineffective for use within enclosed environments because these block the satellite signals and thereby makes this technology ineffective indoors.

Our National Federation of the Blind Indoor Navigation Challenge is a research partnership initiative to foster the development of devices or systems that the blind can use to obtain more useful information about the indoor environments in which we travel, such as schools, airports, hospitals, and shopping malls. These devices are not a substitute for the acquisition of good travel skills. They are meant to be a complement, an additional tool that enhances the travel experience of an independent traveler by providing access to environmental information currently unavailable nonvisually.

Through our initiative, we foster a true partnership between blind people and nonvisual wayfinding technology experts to spur the development of accessible navigation tools that are designed using universal access principles. We have engaged the expertise of Mr. Mike May to administer our National Federation of the Blind Indoor Navigation Challenge. Mr. May, as president and founder of Sendero Group, has had extensive experience with outdoor navigation since 1994, and he possesses a broad depth of knowledge about a variety of accessible orientation and navigation systems.

We have engaged over thirty NFB Indoor Navigation Challenge partners, representing universities and private businesses, and many have already committed to partnering with us toward the development of indoor navigation devices or systems that will eventually have commercial applications. They are attempting to address the problem in a variety of creative ways that take advantage of beacon technologies, remote vision, image recognition, crowd sourcing, and existing infrastructure.

We seek to leverage the expertise and life experience of blind people throughout the research, development, and testing of accessible indoor navigation systems. By working to provide information, resources, and opportunities to all of our NFB Indoor Navigation Challenge participants, we hope to create an incubator for indoor navigation research and best practices, where natural partnerships and mutually beneficial collaborations will be identified and developed. To that end, on November 30 through December 1, 2015, we hosted a summit with the following five Indoor Navigation Challenge partners:

These companies are using innovative approaches to provide nonvisual access to environmental information in creative ways that take advantage of Near Field Communications (NFC), beacon, and wide-band technologies. During our summit, we set up beacon technology throughout the fourth floor of our Jernigan Institute, and two of our participants provided real-time demonstrations of their nonvisual wayfinding technology. Generally the devices were accurate to within ten feet of their reported location. One of the companies reports to be using ultra-wideband technology, which is accurate to one foot, but more expensive. The accuracy of the other solutions is anticipated to continue to improve as the technologies are refined.

During the summit, each participant gave a presentation and answered questions about their specific technologies from members of our Access Technology staff. Although there were similarities in implementation, each technology had a unique approach to providing nonvisual access. Some used audio output; others used audio and vibra-tactile output. The amount of navigation information made available to the user also varied between technologies. Some of the solutions offered walking instructions, others provided information about points of interests throughout the indoor environment, while some provided both. Our evaluation team assessed each solution from the perspective of potential users while taking into consideration a variety of travel skills and technological proficiencies. We leave it to our partners to decide whether or not they share the advice we provided, or to use it to establish a competitive edge. The most valuable recommendation we offered was for the developer to provide the ability for the user to customize the amount of information provided by the system so that it could best meet the needs of the individual user.

Some of our partners have already begun installing their wayfinding solutions in various public spaces, retail establishments, conferences, and both commercial and public transportation venues. With the aggressive mainstream implementation of varying navigation apps and devices throughout a host of venues, our NFB Indoor Navigation Challenge has already begun facilitating collaboration among our partners, promoting the development of a more seamless solution. Boni offered to let Indoo.rs use their NFB beacons. PERCEPT offered to let others take advantage of their software to generate audio walking instructions. Sendero may use an SDK [software development kit] from Loud Steps in the Seeing Eye GPS app. Radius considered working with Boni to provide a nonvisual wayfinding solution for the 2016 Consumer Electronic Show (CES). Unfortunately this did not come together in time for this year’s conference, but perhaps, as a result of this collaboration, the 2017 CES will have accessible indoor navigation technology available. We will continue to encourage communication with and among our existing NFB Indoor Navigation Challenge partners and work to recruit additional challenge participants.

Mr. May, with his years of experience in nonvisual wayfinding technology, has been a tremendous asset in our NFB Indoor Navigation Challenge initiative. His technological expertise has proven to be essential to our progress. We will be bringing greater awareness to our project by giving a presentation on the NFB Indoor Navigation Challenge at the 2016 CSUN conference in March.

There are many technical challenges that remain for our partners to address, and direct communication between our experts and their project engineers will result in the mutually beneficial outcome of effective, nonvisually accessible wayfinding technologies.

As an organization comprised of individuals who would directly benefit from the tools developed through this effort, the National Federation of the Blind remains committed to ensuring the aggressive marketing, mainstream implementation, ongoing innovation, and potential commercialization of these technologies. The annual convention of the National Federation of the Blind, with over 2,500 blind people in attendance, is clearly the ideal venue for testing and demonstrating the leading indoor navigation systems. Stay tuned for announcements of our national convention plans.

The National Federation of the Blind Indoor Navigation Challenge is a research initiative of the National Federation of the Blind Jernigan Institute, the premier research and training institute developed and directed by blind people, that applies the collective knowledge and life experience of the blind toward the development of innovative solutions to the barriers faced by blind people. Interested individuals and potential research partners should contact us at <indoornav@nfb.org>.

National Federation of the Blind Indoor Navigation Challenge <www.nfb.org/indoornav>

 

Dissecting the Value of Diversity

by Justin Salisbury

From the Editor: Originally from Connecticut, Justin Salisbury has traveled around the eastern half of our country in his pursuit of education. He has participated in many initiatives for equality and social inclusion, both inside and outside the National Federation of the Blind. He writes here about some of the concepts he has encountered in this work and explores the spaces where minority classifications intersect. Here is what he has to say:

I was talking with a longtime friend from our Puerto Rico affiliate about our career futures. He wants to be a teacher of the blind, and I told him that we would love to have him in Connecticut. When he asked why, I told him it was because he was from the island. For those who don’t know, the state of Connecticut has a very large Puerto Rican population, especially in the eastern half of the state. I stopped myself immediately and thought about what I had said. The demands of our schedules pulled us away from each other before we could carry the conversation further, and I wished instantly that they had not. I had made a mistake by telling him that we would want him because he was Puerto Rican. His value comes from much more than his ethnic background, and I had wrongly communicated to him that it was his primary credential to contribute.

It has become fashionable to try to make organizations as diverse as possible. I think it is wonderful for organizations to have this goal, but I think careful reflection on the reasoning for the diversity push is important. In the organized blind movement we are making strides to become more diverse and have more diverse populations represented in our membership and leadership. I have discussed diversity themes with many great minds, some of whom are Federationists, and I am writing to share what I have learned.

I often hear people in many organizations, including ones that have nothing to do with blindness, emphasize the desire to have leadership and membership from multicultural backgrounds. This includes race, ethnicity, religion, gender, sexual orientation, disability, and the like. There is value to this goal, but there are potential pitfalls in the description and implementation thereof.

I am a blind person, and I am also Canadian First Nations, which we often call “Native American” here in the United States. I don’t have every kind of minority status, but I do have two that are relatively uncommon. A lot of people ask me to show up at things to represent one community or the other. Whether or not people realize it, this communicates to me that my value is generated by simply being blind or simply being First Nations. It comes from something that I am rather than something that I do. It comes from something I did not earn instead of something that I earned. The process of maintaining this value is simple: stay alive. The capacity to decrease this value is nullified; no level of laziness can take it away. Is increasing my value possible? It must be, but so much focus on that unearned value tends to lead people to take harbor within it. Society does it to us, and we often do it to each other. Just as we don’t mean it or maybe don’t realize it, we can give the benefit of the doubt to the rest of society that their intentions were not malicious. Dr. tenBroek taught us that we must ensure that our road to Hell is not paved with other people’s good intentions. Here, if we are not careful, we can pave a similar road for some of our members, thus affecting all of our members.

When I was in my doctoral program at the University of Wisconsin-Madison, I planned to focus publicly on only two things: academics and the National Federation of the Blind. That lasted until I was spotted by other Native American students, and I was recruited into Wunk Sheek, the broad Native American organization on campus. At our meetings we would often hear that some event or club reached out to us, asking us to come represent the Native American community. Our value at those events and activities was inherent to our race and not to ways that we could present or actively contribute. It was important for us to extend our coordinated support only when it helped us grow. As the National Federation of the Blind’s Executive Director Mark Riccobono, who is now our President, taught me at a leadership event in Wisconsin, it is important to focus specifically on doing the things that build our railroad. I was proud to be able to contribute that wisdom to Wunk Sheek because of what a Federation leader had taught me. If Wunk Sheek were to go out for everything, our purpose would become that of condiments for everyone else’s burgers, and we would not be taught to be contributors beyond providing our diversity itself.

What some organizations used to call “underserved populations,” increasingly more organizations today call “underrepresented populations.” I like this shift in our society and am not surprised that we see this valuable transition in rhetoric led by universities. I attended the University of Wisconsin on a fellowship for underrepresented ethnic minority students in the College of Agriculture and Life Sciences; this program has been used as a model for many others. It was always communicated to us that we were expected to step up and be leaders in our fields, and many of us did. I personally am much more likely to join an organization that tells me that I have something to contribute than one that tells me that I need to be served by their greatness. “Underserved” identifies the population as one primarily to be served rather than represented. In Jim Omvig’s book, Freedom for the Blind, we learn that one of the most important characteristics of achieving first-class status is giving back. It follows that, if a population is viewed primarily as a recipient of the services of another, that population does not have first-class status. If we are systematically viewing subgroups of our movement as second-class within our movement, we are marginalizing that population much the way that the blind are marginalized in the general public. If this is the case, we are not capitalizing on the full potential of those populations to contribute to our movement. It may be easy to misunderstand me here; I am not saying that democratically-elected leaders from privileged social strata cannot adequately represent members from traditionally marginalized social strata. The National Federation of the Blind represents all blind people; this is true. It is also true that diverse backgrounds and sets of experiences in the leadership of our movement equip those leaders who intend to use them to connect and work with individuals with similarly diverse backgrounds and sets of experiences. I expect that many of us would agree that the true cross section of society that blindness affects is not yet perfectly represented in our membership.

We all know what it is to be the token blind person. We know when someone is inviting us to participate in something solely to draw the appearance that the program or activity in question is inclusive to blind people or people with disabilities. We know that our value in those situations is largely perceived to derive from the fact that we are embellishing the status of those who are really participating with the credit of charitably including someone with our disability. When the reporters want to take our picture with the elected official or keynote speaker after waiting for all the other members of the public to go through the line, we know why they do it. They want to report to the world that our disability is there as a part of their program. They are seldom truly pursuing us for our credentials or our capacity. If we are not careful, and if we do not stay close to the National Federation of the Blind for recalibration, in the words of Jennifer Dunnam, we can come to believe that our value in that situation is not defined by who we are but by the fact that we are blind.

The public does it to us, and it is done with good intentions. We cannot allow our road to Hell to be paved with these good intentions, so we must not pave that road for anyone. If we pave the road to reduced productivity for blind people who also represent traditionally underprivileged social strata, we are teaching them to sit back and to allow their value to be generated by their characteristics. If we systematically reduce the productivity of those individuals, we, the nation’s blind, cannot access the true value that they have. It follows then that we are reducing our own productivity by reducing it for others who contribute to ours. Just as we ask others to do for us, we should do for others. We must find ways to break down barriers to the full participation in our movement to all blind people and insist that nobody be a token. The potential is too great to squander.

We are working to ensure that social strata do not inhibit a blind person from participating to his or her fullest potential in our movement, but we also don’t want the strata to become branded as the reason for that person to participate, distracting us all from his or her true potential. When great leaders arise in our movement, it is their contributions that make them great, not the diversity cards in their hands, even if they have a killer hand.

Sometimes someone from an underrepresented population can have the ability to connect with populations who are not being effectively reached. In my case I’m sure there are some blind Native Americans whom I may be able to reach in ways that non-native members may not be able to reach because of my background. There are other components of my identity that could also function the same way. Maybe it is in connecting with people who come from towns so small that the only danger outdoors at night comes from bears and coyotes. Maybe it is with people who grew up in poorer communities right next to wealthier ones. Maybe it is in working with students who are the first person in their family to ever pursue higher education. These factors are also sources of diversity and can create opportunities to reach more people. In our movement there is a value to being able to connect with people who might not otherwise feel connected. Maybe more visibly contributing Latino members can help us reach more Latinos in the general public, a goal that we have since they are the largest minority group in our country.

Sometimes, there are benefits that come from being an active part of the National Federation of the Blind that really have nothing to do with blindness. We are a family and a community of people who work hard and care about each other. The more we interact with people from all types of backgrounds, the more we can demystify those groups and become comfortable with them. For some of us the Federation may be the only place where we interact with someone of a particular religion or country of origin. I know that this is sometimes the case for me. Even better, maybe the Federation is the only or primary place that we can have positive interactions with someone from a particular background. Maybe it is the most positive type of interaction. I run into much hostility from African-Americans on a daily basis, but the very positive relationships that I have with people like Anil Lewis, Roland Allen, and Ever Lee Hairston help me keep my sanity and faith in that group. This helps me be able to work with a population that spans far beyond the blind community, and it strengthens me as a person. We need blind people to be as strong, capable, and confident as possible in order for us to achieve first-class status. We are blind people, and we are simply people too. Our Federation family has a unique ability to serve these types of roles in our lives because of how emotionally powerful our work is. Learning to believe in ourselves and working together to raise the expectations of blind people, transforming dreams into reality, is not something that we do with no emotional benefits. The Federation strengthens us even more than we strengthen it, but it can do so only if we keep feeding the fire.

When people ask us to show up and be blind for them, they are teaching us that our value comes from being blind and showing up. Let us be careful not to tell any potential contributor to our movement that his or her potential value is so limited. Together, we can find out what we can truly achieve. We can push the limits and capitalize on the talents and enthusiasm of everyone who wants to contribute.

Consider a Charitable Gift

Making a charitable gift can be one of the most satisfying experiences in life. Each year millions of people contribute their time, talent, and treasure to charitable organizations. When you plan for a gift to the National Federation of the Blind, you are not just making a donation; you are leaving a legacy that insures a future for blind people throughout the country. Special giving programs are available through the National Federation of the Blind (NFB).

Points to Consider When Making a Gift to the National Federation of the Blind

Benefits of Making a Gift to the NFB

Your Gift Will Help Us

Your gift makes you a part of the NFB dream!

 

The Kenneth Jernigan Convention Scholarship Fund

by Allen Harris

From the Editor: Allen Harris is the chairman of the Kenneth Jernigan Fund Committee and was one of the people who came up with the idea of honoring our former president and longtime leader by establishing a program to promote attendance at the national convention, where so much inspiration and learning occur. Here is Allen’s announcement about the 2016 Kenneth Jernigan Convention Scholarship Fund Program:

Have you always wanted to attend an NFB annual convention but have not done so because of the lack of funds? The Kenneth Jernigan Convention Scholarship Fund invites you to make an application for a scholarship grant. Perhaps this July you too can be in the Rosen Shingle Creek Hotel in Orlando, Florida, enjoying the many pleasures and learning opportunities at the largest and most important yearly convention of blind people in the world.

The three biggest ticket items you need to cover when attending an NFB national convention are the roundtrip transportation, the hotel room for a week, and the food (which tends to be higher priced than at home). We attempt to award additional funds to families, but, whether a family or an individual is granted a scholarship, this fund can only help; it won’t pay all the costs. Last year most of the sixty grants were in the range of $400 to $500 per individual.

We recommend that you find an NFB member as your personal convention mentor, someone who has been to many national conventions and is able to share money-saving tips with you and tips on navigating the extensive agenda in the big hotel. Your mentor will help you get the most out of the amazing experience that is convention week.

Who is eligible?
Active NFB members, blind or sighted, who have not yet attended an NFB national convention because of lack of funding are eligible to apply.

How do I apply for funding assistance?
1. You write a letter giving your contact information, and your local NFB information, your specific amount requested, and then explain why this is a good investment for the NFB. The points to cover are listed below.

2. You contact your state president in person or by phone to request his or her help in obtaining funding. Be sure to tell the president when to expect your request letter by email, and mention the deadline.

3. You (or a friend) send your letter by email to your state president. He or she must add a president’s recommendation and then email both letters directly to the Kenneth Jernigan Convention Scholarship Fund Committee. Your president must forward the two letters no later than April 15, 2016.

Your letter to Chairperson Allen Harris must cover these points:

The body of your letter should answer these questions:
How do you currently participate in the Federation? Why do you want to attend a national convention? What would you receive; what can you share or give? You can include in your letter to the committee any special circumstances you hope they will take into consideration.

When will I be notified that I am a winner?
If you are chosen to receive this scholarship, you will receive a letter with convention details that should answer most of your questions. The committee makes every effort to notify scholarship winners by May 15, but you must do several things before that to be prepared to attend if you are chosen:

1. Make your own hotel reservation. If something prevents you from attending, you can cancel the reservation. (Yes, you may arrange for roommates of your own to reduce the cost.)

2. Register online for the entire convention, including the banquet, by May 31.

3. Find someone in your chapter or affiliate who has been to many conventions and can answer your questions as a friend and advisor.

4. If you do not hear from the committee by May 15, then you did not win a grant this year.

How will I receive my convention scholarship?
At convention you will be given a debit card or credit card loaded with the amount of your award. The times and locations to pick up your card will be listed in the letter we send you. The committee is not able to provide funds before the convention, so work with your chapter and state affiliate to assist you by obtaining an agreement to advance funds if you win a scholarship and to pay your treasury back after you receive your debit or credit card.

What if I have more questions? For additional information email the chairman, Allen Harris, at <kjscholarships@nfb.org> or call his Baltimore, Maryland, office at (410) 659-9314, extension 2415.

Above all, please use this opportunity to attend your first convention on the national level and join several thousand active Federationists in the most important meeting of the blind in the world. We hope to see you in Orlando.

Court Renders Major Decision on the Practice of Paying Subminimum Wages to Disabled Workers

From the Editor: Anyone who reads the Braille Monitor knows that we have been engaged in an effort to get the Congress of the United States to amend the Fair Labor Standards Act by phasing out section 14(c), a law passed in 1938 which allows the payment of less than the minimum wage to disabled workers. The executive branch took action in 2015 to see that blind workers employed by federal contractors receive at least $10.10 an hour. Now the third branch of government, the judiciary, has weighed in, and we reprint here a significant decision arguing against the use of section 14(c) and the procedures used by facilities that seek to take advantage of its provisions at the expense of disabled workers. Throughout this opinion the reader will find long-standing arguments made by the National Federation of the Blind to be ones the judge arrives at through observation, considerable thought, and the application of common sense. For readability we have left out the footnotes, but anyone wishing a full copy of the document can receive it in .pdf by writing to <gwunder@nfb.org>.

Here is what the National Federation of the Blind’s director of legal policy, Marc Maurer, has to say about the decision:

“We have received the attached decision from the administrative law judge in the Seneca Re-Ad case. Three petitioners in a sheltered workshop were being paid less than the minimum wage. The legal standard to permit this is that the individuals be disabled for the work to be performed. The judge determined that these petitioners are not so disabled, which leads to the conclusion that the Fair Labor Standards Act was violated.  I would call this a substantial march of progress. The judge declared that there has to be a connection between the disability and the diminution of performance of a job task before subminimum wages are permitted. It is not enough to allege disability. The workshop has the burden of demonstrating that subminimum wages are justified, and this decision makes demonstrating the connection much more difficult.”

Here is the decision:

Issue Date:      02 February 2016

Case No.:        2016-FLS-3

In the Matter of:

Petition for Review of Special
Minimum Wage Rate Pursuant to
Section 14(c)(5)(A) of the Fair Labor
Standards Act by:

RALPH MAGERS, Petitioner,

and PAMELA STEWARD, Petitioner,

and MARK FELTON, Petitioner,

v.

SENECA RE-AD INDUSTRIES, INC., Respondent.

DECISION AND ORDER

I.          INTRODUCTION

This case arises under Section 214(c) of the Fair Labor Standards Act (“Act”), 29 U.S.C. §214(c).1 Ralph (“Joe”) Magers, Pamela Steward, and Mark Felton (“Petitioners”) are employees of Seneca Re-Ad Industries (“Respondent”), which is located in Fostoria, Ohio. Each of the Petitioners has been diagnosed with one or more developmental disabilities,2 and each receives services from the Seneca County (Ohio) Board of Developmental Disabilities (“DD”).3 Employment at Respondent’s Fostoria manufacturing facility is one of the services provided by DD.4

DD provides services to approximately 230 persons in Seneca County.5 Approximately 37 people are receiving DD services in the form of community (competitive) employment. Approximately 120 persons work in DD’s “sheltered workshops” (now generally referred to as “community rehabilitation programs”). Respondent is a not-for-profit corporation which has a contract with DD to provide employment opportunities to DD’s clients.6

At all relevant times, Respondent has held a Certificate issued by the United States Department of Labor (a “Section 214(c) Certificate”) which has authorized Respondent to pay less than the minimum wage7 to Petitioners for nearly all of the work they perform. In this action, Petitioners seek a review of the special minimum wages paid to them.

Over the past 75 years, implementation and enforcement of the Fair Labor Standards Act has defined the most fundamental relationships between American employers and their employees. The 40-hour workweek, overtime pay, and the near elimination of child labor have been woven into the fabric of the modern workplace. Applicability of the Act to specific workplace conditions continues to cause disagreement, and litigation under the Act (and its state counterparts) remains a staple of federal and state court dockets.

Our collective notions of disability, and in particular our notions of how a disability might affect the ability of an individual to participate in employment, have also changed dramatically over the past few decades. Statutes such as the Americans with Disabilities Act have fundamentally altered the ways in which employees with disabilities are able to find and sustain competitive employment.

The instant case does not involve competitive employment. Nor, based upon my review of the evidence at the hearing, does it really involve what were once called “sheltered workshops.” The Petitioners live independently in the community. They have held competitive employment in the past. Each of them brings valuable employment skills to the Respondent’s modern manufacturing facility every day. When working for Respondent, the Petitioners participate in the production of products having commercial value. Like American workers in competitive employment, Petitioners view themselves partially through a lens of their labor. How and where they work, and what they do in the workplace, and how they are compensated, gives the Petitioners a significant portion of their identity.

The workplace relationship between Petitioners and Respondent is complicated and is fundamentally different from competitive employment. A few of the differences are: (1) Petitioners have voluntarily chosen to participate in a Seneca County program for those with developmental disabilities instead of pursuing competitive employment in the community. By accepting disability services from Respondent, Petitioners have agreed to accept the special minimum wages—far below minimum wage—which are authorized by Section 214 of the Act and by the Section 214(c) Certificate held by Respondent; (2) The manner in which the Petitioners’ compensation is calculated is neither easily comprehended nor transparent. In the hearing of this case, the calculation of the so-called “commensurate wages” paid to Petitioners was explained by an expert; (3) The Petitioner’s “personnel files” contain medical, social and psychological information which would not be available to employers in the realm of competitive employment; (4) Some of the jobs performed at Respondent’s manufacturing facility are designed to maximize employment opportunities for those with developmental disabilities, rather than to maximize the output of goods in a workday. This choice by Respondent maximizes the number of persons to whom disability services might be provided by Seneca County. This choice by Respondent does not maximize the amount of money any employee will see in her paycheck. As Rodney Biggert, Division Manager of DD, explained:

Q.        Okay. So let me circle back to that question of why not pay minimum wage. And you said that, I believe, that you couldn't pay minimum wage because you wanted to increase opportunities for workers with disabilities, is that correct?

A.        Correct.

Q.        Can you explain what the connection is between—why subminimum wage is necessary for you to create opportunity?

A.        In the case of the Fostoria division, if our costs were to increase to that extent–

JUDGE BELL: To what extent?

THE WITNESS: To the extent where we are paying every individual at least minimum wage, it would be hard to retain that contract [with Roppe Industries] without some large change in the way they do business, which I mean—which by that, I mean automating a large portion of what we do and eliminating at least half of the workforce.8

In Respondent’s Fostoria workplace, Petitioner’s wages are suppressed by: (1) Section 214(c) of the Act, which authorizes special minimum wages to be paid to those with disabilities; and (2) Petitioners’ disabilities, and how those disabilities might actually affect their ability to perform in the workplace, but also how those disabilities are perceived by the Petitioners and by others; and (3) Respondent’s choice that the number of employment opportunities which may be offered to the disabled in this specific workplace will be given priority over the amount of compensation paid to any individual disabled employee; and (4) the manner in which higher-paying jobs are assigned to Petitioners; and (5) the manner in which the Petitioner’s commensurate wages are calculated; and (6) the health of the labor market in Seneca County.

For the reasons explained below, I find that the special minimum wages actually paid to the Petitioners are not justifiable given the nature and extent of the Petitioner’s respective disabilities. Respondent has failed to demonstrate that the Petitioners are “impaired by a physical or mental disability . . . for the work to be performed”9 by each Petitioner at the Respondent’s Fostoria, Ohio, manufacturing facility. By failing to pay minimum wage to each of the Petitioners, Respondent has violated §206 of the Act.

For the reasons explained below, I also find the special minimum wages actually paid to the Petitioners have not been appropriately calculated. Respondent has failed to meet its burden to justify “the propriety of [the] wage” paid to the Petitioners.10 By failing to pay minimum wage to each of the Petitioners, Respondent has violated §206 of the Act.

Each of these findings independently requires that I find in favor of each Petitioner, and that I fashion an appropriate remedy for each of them. For the reasons which follow, I will order that each of the Petitioners be paid at least the Ohio minimum wage going forward, and I will award back pay and liquidated damages to each of them. I will also award attorney fees and reasonable litigation costs to Petitioners if such a remedy is available.

II.        PROCEDURAL HISTORY

On November 17, 2015, Petitioners submitted a “Petition for Review of Wages” to the Wage and Hour Division of the United States Department of Labor. On November 25, 2015, the Wage and Hour Division referred the matter to the Office of Administrative Law Judges. The case was assigned to me on December 16, 2015. On that date, I conducted a telephone conference with counsel, and thereafter issued an Order: (1) setting the date and location of the formal hearing; (2) establishing a discovery schedule, and (3) requiring Respondent to immediately produce to Petitioners the information described in 29 C.F.R. §525.16.11

Pursuant to the Act12 and Department of Labor regulations,13 I was required to schedule and conduct a hearing on an expedited basis. The formal hearing was held in a public courtroom at the Seneca County Court of Common Pleas in Tiffin, Ohio, on January 4, 5, 6, 7 and 8, 2016. On the morning of January 6, I was able (along with counsel) to visit the manufacturing facility in Fostoria, Ohio, where each of the Petitioners is now employed. While there, I was able to observe production activities at Respondent’s facility.

Petitioners’ Exhibits 1 through 18 and Respondent’s Exhibits 1 through 24 and A1 through D1 were admitted without objection during the hearing. On January 18, 2016, the parties filed post-hearing briefs. I have reviewed a transcript of the hearing in the preparation of this Decision and Order.14

III.       THE PETITIONERS

Petitioners work at Respondent’s manufacturing facility for a variety of reasons. Some of these reasons are easily understood—such as the difficulty finding transportation in a largely rural county. Some of the reasons involve the types of available jobs for unskilled laborers. Some reasons are connected to the Petitioners’ disabilities. Petitioners’ expert, Dr. Fredric Schroeder, testified about the relationship of these factors:

JUDGE BELL: What, if anything, do you understand to be the nature of the labor market here in Tiffin or Seneca County, generally?

THE WITNESS: Oh, I know that this is a college town; I know that that stimulates certain kinds of industry, business. But also I'm assuming, and I'm not intricately familiar with this community, but I'm assuming, being fairly rural, there's probably some agriculture. I have not done a labor market survey of this area.

 JUDGE BELL: Do you know whether there are other simple assembly positions that are available to those in the community who may wish to have those jobs and who may be able to get transportation to those jobs or is there a shortage of those kinds of jobs? If you know.

THE WITNESS: I haven't done a labor market survey. I know there's some light industry in the area. So I don't know. But really, the individuals, based on the conversations that I've had with them, I probably would not be exploring the same type of work within an integrated setting. I'd be looking, I think, for different types of employment options for them.

JUDGE BELL: Such as?

THE WITNESS: Well, again, it's an exploratory process. You start with the individual's interests, but you have to factor in all sorts of—like transportation. But also there's a huge social dynamic around disability and that social dynamic means, for some individuals, they can go into an integrated setting and function very well without any particular supports where other individuals, just to put it bluntly, they've been told for a lifetime that they're inferior, that they can't work at a competitive level, that they're slow, they're inaccurate, and they may need a good bit of support.

So it's not—what you're trying to do in rehabilitation is maximize employment, see how far you can take the individual in finding a job that's a good fit for them, makes—that they enjoy, that they're good at, that they're comfortable with. So all of the skills parts just kind of help inform you and then you look at the community, you look at the available jobs, you meet with employers, you look at the employment setting, the receptivity of the coworkers, there's just so many tangible and intangibles. But I would describe the process as an exploration, and with each individual it will vary a great deal in how much support they may need.15

Ralph (“Joe”) Magers applied for DD services on November 3, 2009. According to the materials in his file,16 Mr. Magers is legally blind. Mr. Magers” OEDI17 score sheet finds substantial functional limitations in the following areas: mobility, self-care, self-direction, capacity for independent living and economic self-sufficiency.18 He attended the Ohio School for the Blind, where it was determined that his “measured mental ability . . . is within the superior range.”19 The Ohio School for the Blind noted that “Joe is a very hard, conscientious worker.”20 Mr. Magers has worked for Respondent for approximately six years.21 Although legally blind, he has sufficient sight to be able to get around in familiar areas.22 He has some difficulty differentiating between items of similar color, and he needs larger print in order to be able to read.23 He lives by himself.24 He does not drive. He pays his bills, shops for his groceries, and does his laundry.25 He has held some competitive employment in the past, most notably a three-year period of employment with Ticketmaster. He also worked in a call center. In these jobs, Mr. Magers earned more than minimum wage.26

As a result of his visual impairment, Mr. Magers has transportation issues. He describes his travel methods:

Q.        Okay. And do you drive?

A.        No.

Q.        How do you get around Tiffin?

A.        I mostly walk. I will take SCAT transportation from time to time, and maybe if I had a little more money, I'd take a cab now and then.

Q.        And what is SCAT transportation?

A.        That's more or less our version of—Seneca County's version of Paratransit. It probably operates under a bit different rules since there are no fixed routes.

Q.        Okay. And does it operate during certain hours?

A.        Yes. Weekdays, it operates from quite early in the morning until—I think they want to be over and done by 6:00. So most generally they want—they try to make it more like it's 5:00. But if you're doing a special thing, you can—you'll have services a little past 5:00.27

Pamela Steward applied for DD services on May 11, 2009.28 She has worked at Respondent’s Fostoria manufacturing facility for nearly six years. She is blind in her right eye, but has fairly good vision in her left eye.29 She does not drive. She lives alone and is responsible for running her household.30 She has also been diagnosed with an intellectual disability.31 She has held some competitive employment in the past, but was out of the labor market immediately after graduating from high school and for many years thereafter while raising a family.32 Her OEDI form finds that she has substantial functional limitations in the areas of self-care, self-direction, capacity for independent living, learning and economic self-sufficiency.33 A hand-written document in her file states:

Pam can accomplish most daily living skills. She does not need assistance, however, with money/budgeting, laundry, medication, and transportation. Social skills: Pam appears friendly. She has been in a long-term marriage and has contact with her family on a regular basis. Pam has an adult daughter. Physical: Pam has a diagnosis of depression. No limitations per her physical. Vocational: very limited past employment at a tomato farm. She could not keep up with production demands.34

Ms. Steward has chosen to work at the Fostoria manufacturing facility mostly because of availability of transportation, but also because she feels more comfortable there than she would in competitive employment:

The only reason I do choose to work there is because of transportation. I'm able to get along with the people better there. They don't act like they're better than me. I mean, the employees that do work there, we're all in competition and we pretty well get along.35

Mark Felton has worked for Respondent for approximately four years.36 He has been diagnosed with Asperger’s disorder. He has held a small amount of competitive employment in the past.37 He graduated from high school in 2011.38 He has held an Ohio driver’s license since 2014, although he does not have a car. He lives at home with his parents.39

IV.       THE RESPONDENT

The Seneca County Board of Mental Retardation (predecessor of DD) was established in 1967.40 At some point thereafter, Respondent and Roppe Industries entered into a partnership and established a workshop in Fostoria, Ohio.41 Roppe Industries is a Fostoria-based company which manufactures rubber flooring and other products.42 In 1989, Respondent’s Fostoria workshop was moved into a factory purchased by Roppe Industries.43 The Fostoria facility performs many jobs under a contract with Roppe Industries.44 A representative of Roppe Industries holds a seat on the Board of Respondent.45

Respondent’s Fostoria facility is in operation between 8:30 am and 3:15 pm on weekdays. All employees are required to spend approximately one hour of the workday in an unpaid educational or social “activity.” There is a 30-minute lunch period, and two 15-minute breaks during the workday. It is thus difficult for an employee at Fostoria to perform more than about 5 hours per day of paid work.

V.        THE WORK PERFORMED BY PETITIONERS

In order to determine whether the payment of a “special minimum wage” is justified, a number of criteria are considered:

(1)        The nature and extent of the disabilities of the individuals employed as these disabilities relate to the individuals’ productivity;

(2)        The prevailing wages of experienced employees not disabled for the job who are employed in the vicinity in industry engaged in work comparable to that performed at the special minimum wage rate;

(3)        The productivity of the workers with disabilities compared to the norm established for nondisabled workers through the use of a verifiable work measurement method (see §525.12(h)) or the productivity of experienced nondisabled workers employed in the vicinity on comparable work; and

(4)        The wage rates to be paid to the workers with disabilities for work comparable to that performed by experienced nondisabled workers.46

At Respondent’s Fostoria facility, a significant amount of the work performed is finishing and packaging product from Roppe Industries. By way of example, at Respondent’s Fostoria manufacturing facility, pieces of rubber flooring manufactured by Roppe Industries are cut to appropriate size, the pieces have a hole drilled in them, and the pieces are sent through a printing process where each piece has identifying information printed onto it. Each of these cutting, drilling and printing jobs is paid on a piece-rate basis, and the Respondents each have experience performing these various jobs.

When performing jobs paid on a piece-rate basis, each of the Petitioners occasionally has been able to earn more than minimum wage. For example, Mark Felton was able to earn more than $14.00 per hour on September 4, 2015, on a press machine that punches out rubber grommets from a blank (the “Click 5 machine”).47 On October 16, 2015, Joe Magers was able to earn nearly $9.00 per hour on a piece-rate job called “Affix Screw and Remove.”48 Pamela Steward was able to earn $11.84 per hour on a drill press on October 2, 2015.49 The Ohio minimum wage during this period was $8.10.

Mr. Biggert described the opportunities for community employment:

Q.        Mr. Biggert, you do have folks that do have community employment; is that correct?

A.        Yes.

Q.        And some of them are community employment at the same time that they’re working at Seneca Re-ad; is that correct?

A.        Yes.

Q.        The folks who are working community employment, they’re getting paid above minimum wage when they’re in the community; is that right?

A.        Correct.

Q.        And they’re getting paid below minimum wage in your workshop; is that right?

A.        Correct.50

The most significant job at Respondent’s Fostoria manufacturing facility which is paid on an hourly basis is known as “the line” or “the assembly line” or “the Creform line.”51 Photographs of the Creform line are in the record.52 The end product of the Creform line is a bundle containing many different colored samples (each approximately 4 inches long by 2.5 inches wide) of Roppe Industries’ rubber flooring held together by a small metal chain. A photograph showing this completed bundle of samples is in the record.53 A consumer wishing to purchase Roppe Industries products can presumably take this bundle to a home or office in order to select the appropriate color to purchase.

Anywhere between thirty and forty employees sit or stand at stations along the Creform line. In blue and red bins in front of each work station are pieces of the Roppe Industries product which, before being delivered to the line, have been cut to size, had the printed legend applied, and has had a hole drilled in them. A photograph of the bins containing the Roppe Industries product is in the record.54

A wooden jig, approximately 24 inches tall and 6 inches wide, has a metal post sticking straight up from its base. A long metal chain is placed over the tip of the post so that the chain hangs parallel to the post. A photograph of several jigs with the chains in place is in the record.55 The jig is slid on a table containing embedded rollers from person to person down the assembly line from each worker’s left to right. The employee at each station will typically remove one sample from each of the two bins in front of the employee (each bin contains a different color product), and will then place the hole in the product over the post, thereby threading the chain through the hole that has been drilled in each piece. The jig is then slid along the table to the next person on the line, who repeats the process with different color samples. At the end of the line, the chain is closed and the ring of samples is inspected and then sent off for shipment.

During the period August 14, 2015, to December 15, 2015, approximately 51 percent of Mark Felton’s working hours at the Fostoria manufacturing facility were on the Creform line.56 He was paid $4.11 per hour for his Creform line work.57 During the same period, Joe Magers spent about 62 percent of his work time on the Creform line.58 Mr. Magers was initially paid $3.00, and then $3.15 per hour, for his work on the Creform line.59 Pamela Steward spent about 52 percent of her work time during this period on the Creform line, for which she was paid $3.22 per hour.60

When absences, “activity” time, holidays, and other unpaid time is deducted, during the period August 14, 2015, to December 31, 2015, Mark Felton was paid for working a total of 328.25 hours at Respondent’s Fostoria facility (approximately 16.5 paid hours per week).61 His gross compensation during that period was $2,573.63 (about $129 gross per week), and that amount includes an unexplained “Misc-Adj” payment of $571 paid just before this matter went to hearing.62

During the same period, Joe Magers had a total of 257 hours for which he was paid wages (about 13 paid hours per week).63 His gross compensation during the period was $1,534.32, or about $77 gross per week, which also includes an unexplained “Misc-Adj” payment of 435.54.

During the same period, Pamela Steward was paid for working 278.25 hours (about 14 paid hours per week). Her gross compensation during the period was $2,624.41 (about $131 gross per week), including a “Misc-Adj” payment of $685.55. Ms. Steward testified about the unexplained “Misc-Adj” payment:

Q.        Okay. And do you know how much your average paycheck is?

A.        Here recently, I can't even figure this one out, why it would be that high or anything like that there. But here recently, just before Christmas I received a check of $763.13.

Q.        And you can't figure out why it's that—

A.        No, I do not have no idea, no, why it's that high and why it would be that high.

Q.        And before that, how much were you getting paid, that paycheck—

A.        Well, I was probably getting maybe like $100, $200 maybe.

Q.        Every two weeks?

A.        When I was placed on the good jobs, when I was on those jobs like the saw and that.

Q.        And you're paid every two weeks, is that correct?

A.        Yeah. I mean, I made a call to Michelle Guest (ph.) this morning, stating how high my check was and why it was that high and she said, well—she goes, we think you got a letter in with the check. But I don't recall seeing a letter in with that check—

Q.        Okay.

A.        —stating why it would be that high. I mean, I don't have a problem with it, that's fine. I mean, if you want to pay that kind of money, go ahead and pay me that kind of money. I mean, I just can't figure out why it would be so darn high.64

VI.       THE CALCULATION OF COMMENSURATE HOURLY WAGES

Department of Labor regulations describe the methods by which the special minimum wages paid to the Petitioners and their co-workers are to be calculated. A method for calculating work paid as piece-work,65 and a method for calculating hourly wages66 are prescribed by the Department of Labor.

The Section 14(c) Certificate issued to Respondent by the Department of Labor authorizes Respondent to pay special minimum wages to those working in the facility. For the work performed on the Creform line (paid on an hourly basis),67 the calculation of the hourly wage to be paid requires Respondent to gather the following information:

1.         Respondent conducts an annual survey of employers in Seneca County, Ohio, to determine the amount of hourly wages being paid to experienced workers in competitive positions thought to be comparable to those occupied by Petitioners (this is known as the “prevailing rate”).68

2.         From time to time,69 Respondent determines how many jigs can be processed in one hour by a non-disabled worker familiar with the Creform line.70 This number becomes known as the “production standard” or “standard of production.” The persons participating in this timed test are typically supervisors with familiarity with the operation of the Creform line.71 The most recent results of these timed tests are Respondent Exhibits C-1 and C-2. Over the past few years, the production standard for the Creform line has been established at these levels:

Dates and Production Standard (Jigs per Hour)
2010 to 2013:      816
2013 to 2016:  1,114
2016 (current): 1,607

3.         Approximately once every six months, Respondent individually determines how many jigs of product can be processed in one hour by each employee working on the Creform line.72 A supervisor will time the employee and count the number of jigs processed during that time.73 Once the information described above is gathered, a calculation is made: the number of jigs per hour completed by the tested employee (Step 3) is divided by production standard (established by the number of pieces completed in one hour by the tested supervisor at Step 2). That product is then multiplied by the prevailing rate (the hourly wage paid to experienced workers in the county) as determined by Step 1. This calculation yields the “commensurate hourly wage” to be paid to the employee for his or her work on the Creform line.74

By way of example: If the prevailing rate for light manufacturing in Seneca County is $9.00 per hour (step 1), and if the standard setter can complete 1,000 jigs on the Creform line in an hour (step 2), and if a disabled employee on the Creform line can complete 750 jigs per hour (step 3), then the commensurate wage to be paid to the worker is $6.75 per hour (750 divided by 1,000 = 0.75. $9.00 multiplied by 0.75 = $6.75). This commensurate wage remains in effect until the next time the employee’s performance is tested, or until the information in steps 1 or 2 changes.

The measurement of the hourly rate of production achieved on the Creform line, either by supervisors when acting as “standard setters,” or by the Petitioners during their twice-yearly production assessments, plays a critical role in determining the hourly wage paid to each of the Petitioners for their work on the line.

Exhibits D-1 through D-6 are the “Hourly Job Sampling” forms completed for each Petitioner during the relevant period. While all of these forms indicate the Petitioner was tested on the line for precisely “1.000000 hour” or for “100% of an hour,” and while each form reports a precise number of jigs produced during that 1-hour test period, the testimony at the hearing was that these tests actually only lasted a few minutes, and the performance results recorded on the Hourly Job Sampling forms were extrapolated from a very short period of actual examination to a 1-hour time period. By way of example, Exhibit D-1 is a June 17, 2013, Hourly Job Sampling report for Mark Felton. This form reports on its face that Mr. Felton produced 251 jigs on the Creform line in 1.000000 hour. Mr. Felton testified about his testing:

Q.        So Mark, when—did Terry do most of the time studies?

A.        Yes.

Q.        And did he tell you he was doing the time study when he did it?

A.        I think so.

Q.        So you were on the Creform line. And do you recall how long the time study lasted or how it was measured, how he did it?

A.        It was probably less than a minute, I'm pretty sure.

Q.        Do you know if he was measuring it by time or number of jigs?

A.        Pretty much pace the jigs, how fast you run the jigs.75

Mr. Magers testified as follows:

Q.        Okay. Now, during the time that you've been at the workshop, has your productivity ever been tested or timed?

A.        Only on the line.

Q.        Okay. And when they test you, do you guys have a name for what that's called?

A.        Well, they do call it a time study.

Q.        Okay. So do you know about how often they normally do time studies?

A.        Usually about every six months.

Q.        Okay. And is it your testimony that they've only done time studies for you on the line?

A.        Yes, I know of no other situations. And I guess there's even been times when they'd study me on the line unbeknownst to me.

Q.        Okay. And how do they normally do like, you know, their time studies? Who does it and what do they tell you?

A.        It would be done by Terry Stocker. They set you up with about eight jigs and I don't know, they kind of, you know, prod you in there and they don't really encourage much of any kind of real productivity. And, you know, in that time you're kind of hoping that you don't cause a chain to fall off the jig so you're not worried about taking time putting that back on.

Q.        So how long does it take you to do about eight jigs?

A.        Probably less than a minute.

Q.        So they're not—are they then timing you for like a certain amount of time or just doing it by however many jigs they set up for you?

A.        Just however many jigs they set up.76

Ms. Steward testified about her testing on the Creform line:

Q.        Okay. Now when they normally test you on the Creform line, how does that—what happens when they're testing you?

A.        Terry or Rodney generally come over and tell me, hey, Pam, I'm going to test you today. Are you fine with that? And I'll tell them, yes, I am fine with that. So he'll test me and I'm generally pretty fast at my work.

Q.        How long does the test last, generally?

A.        I don't even think it lasts more than a minute. It don't seem like it, anyways.

Q.        Does he give you a certain number of jigs to work or how does that–

A.        Yeah, probably about eight, maybe.77

There is no accurate recording of the actual, observed, production of the Petitioners anywhere in the record until after this proceeding had been commenced and Mr. Knuckles was hired by Respondent as a consultant. These tests have a direct and substantial impact on the calculation of the hourly wage to be paid to the Petitioners.

There are accurate recordings of the actual, observed, production of the standard setters. Exhibit C-1 presents the results of a timed test performed by supervisors on September 30, 2013. The face of this document shows that 3 separate tests were performed that day: the first test lasted 52 seconds, during which 17 jigs were completed by the standard setter. The second test lasted 47 seconds, during which 15 jigs were completed. The third test lasted 59 seconds, during which 20 jigs were completed by a supervisor. Arithmetic calculations are then shown on the exhibit, showing how three tests lasting less than one minute were extrapolated to determine a 1-hour production standard.

Exhibit C-2 is a record of tests performed by standard setters on December 16, 2015. Each of the 2 tests performed on December 16, 2015, lasted about 10 minutes. Again, arithmetic calculations were made to extrapolate the results of this 10-minute test to a 1-hour production standard.

Of particular note when comparing Exhibits C-1 and C-2 is the dramatic difference in performance by the standard setters. On September 30, 2013 (Exhibit C-1), supervisor Laurie Fretz produced 20 jigs in 59 seconds during the third test reported on that Exhibit. On December 16, 2015 (Exhibit C-2), Ms. Fretz produced 26 jigs per minute during the second reported test. Ms. Fretz was thus measured to be producing about 360 more jigs per hour in 2015 than she had produced in 2013. Nothing on the Creform line had changed during this time, nor had the method of production changed. These tests have a direct and substantial impact on calculation of the hourly wage paid to the Petitioners.

Ms. Fretz testified:

JUDGE BELL: Can you—does the difference between 1,114 jigs per hour and 1,607 jigs per hour seem to you like a big difference?

THE WITNESS: Not really, being more familiar on the line—I worked at a steady pace, like I was always taught to do.

JUDGE BELL: Okay.

THE WITNESS: And the pace that I could work at all day.

JUDGE BELL: Do you have an understanding of what the effect is on the rate of pay for the Petitioners when the standard of production moves from 1,114 jigs per hour to 1,607 jigs per hour?

THE WITNESS: Yes, the standard is raised.

JUDGE BELL: And what happens to their pay?

THE WITNESS: It depends on how they do on the line.

JUDGE BELL: Assuming that their pay [rate] remains constant, what’s the effect of the production standard going up?

THE WITNESS: It would decrease.

JUDGE BELL: So as the production standard goes up, assuming the Petitioners’ performance remains level, their hourly pay goes down; correct?

THE WITNESS: Yes.78

VII.     THE WITNESSES AT THE HEARING

Each of the Petitioners testified at the hearing. I find the testimony of the Petitioners to be substantially supported by the documentary evidence in the record. They were credible, and I accept nearly all of their testimony.

Both parties called Rodney Biggert in their respective cases-in-chief. I believe Mr. Biggert is dedicated to the mission of Respondent. There were areas of Mr. Biggert’s testimony that I believe to be lower probative value—such as his observations of the Petitioners as they work on the Creform line79—and which I do not fully accept.

Laurie Fretz and Terry Stocker were called by Respondent. Both are supervisors employed by Respondent. Their testimony was consistent with the record, and both were entirely credible. The record should reflect my thanks to Ms. Fretz for guiding counsel and the Court on our tour of the Fostoria manufacturing facility. This was most helpful.

Three experts appeared at the hearing. Petitioners called Dr. Fredric K. Schroeder in their case-in-chief. Dr. Schroeder has his Ph.D. in Education Administration and Supervision from the University of New Mexico, and since 2014, has been the executive director of the National Rehabilitation Association. He is also a Research Professor at San Diego State University. From 1994 to 2001, Dr. Schroeder served as Commissioner of the Rehabilitation Services Administration of the U.S. Department of Education. Dr. Schroeder’s complete Curriculum Vitae is in the record as Petitioner’s Exhibit 1. Dr. Schroeder’s Expert Report (Petitioner’s Exhibit 2) concludes that none of the Petitioners “meet the definition of ‘worker with a disability’ as required by Section 14(c) of the FLSA to be paid under a special wage certificate.”80

I am concerned that the Petitioners and Dr. Schroeder seem to have markedly different recollections of the length and quality of Dr. Schroeder’s interviews of them. Dr. Schroeder described an elaborate interview and information gathering process undertaken in preparation of his expert report:

Q.        And the interview itself, when and where did that happen?

A.        It took place in—here in Tiffin. It was over a Friday and Saturday. I'm thinking it was the first weekend of June 2015. So it was about a day-and-a-half-long process.

Q.        Would the weekend of the 12th and the 13th of June be the appropriate one?

A.        Yes, that sounds correct.

Q.        And how much time did you spend with these individuals?

A.        I would say the interview with each individual took in the neighborhood of 90 minutes, give or take 10 or 15 minutes, but about 90 minutes. It was a little longer than I would normally do in an initial vocational evaluation, but you don't want to go into so much detail that you end up kind of exhausting the individual with whom you're speaking. So I would estimate 90 minutes each and then there was some time when I had a general conversation with them as a group.81

Each of the Petitioners has a markedly different recollection of the amount of time they spent with Dr. Schroeder. Ms. Steward’s testimony is representative of that offered by the Petitioners on this subject:

Q.        Okay. How many times did you talk to [Dr. Schroeder], do you know?

A.        Maybe a couple times.

Q.        Did you meet him in person or on the phone?

A.        In person, I believe.

Q.        Okay, a couple times in person?

A.        Yeah.

Q.        That was in June?

A.        Yes.

Q.        Was that the only time you've ever met Dr. Schroeder?

A.        I don't recall. Maybe. Yeah.

Q.        Have you talked to him since June?

A.        I don't recall that, either.

Q.        Okay. And how long did you talk to him?

A.        Probably not too long.

Q.        Okay. Can you give me a time frame, 10 minutes, 20 minutes, an hour?

A.        Maybe about 10 minutes.

Q.        Maybe 10 minutes, okay. Did he ask you questions?

A.        Yes, but I don't recall what those questions were.

Q.        Okay. Now, you met alone with him for 10 minutes or you only talked to him for 10 minutes in total?

A.        I think we were all there.

Q.        Okay. Did you ever meet with him alone?

A.        Not that I remember.

Q.        Okay. And I think you said you can't recall anything you talked about.

A.        No, I'm sorry. No.

Q.        You didn't tell him about any of your prior jobs?

A.        I don't recall that, either.82

On this subject, I credit the Petitioners’ collective recollections over that of Dr. Schroeder, and I do find Dr. Schroeder’s credibility diminished. As a consequence of my doubts whether Dr. Schroeder really gathered sufficient information to support his opinions about whether the Petitioners are impaired for the work they perform at Fostoria, I discount much of his testimony pursuant to Evidence Rule 702(b).

Dr. Schroeder also offered testimony about the impact of disability of the actual performance of work. He also testified about the perceptions of disability, and how those perceptions color our views about the work performed by the disabled. I find these assessments to be largely unaffected by any question I may have as to the quality of his interviews of Petitioners, and I do not discount Dr. Schroeder’s opinions in these areas.

Petitioners also called Dr. Robert Cimera. Dr. Cimera has his Ph.D. in Special Education from the University of Illinois, with an emphasis on school-to-work transition. He is a professor at Kent State University, and has published extensively in the areas of the economics of vocational programs and the employment of persons with disabilities. Dr. Cimera did a thorough analysis of the Petitioners’ employment and pay records, and raised a number of serious questions about the accuracy and consistency of the calculations made by Respondent which affected the pay received by Petitioners. Dr. Cimera was candid and credible. His testimony was somewhat affected by the fact that additional documents were produced after he had published his expert report, and these additional documents may have affected some of his conclusions.83 I find Dr. Cimera to be qualified as an expert on the payment of wages to the Petitioners. However, much of Dr. Cimera’s “scientific, technical, or other specialized knowledge” was of little help to me in understanding the evidence or determining a fact in issue.84

Respondent called Mark Knuckles as an expert. Mr. Knuckles was formerly employed by the Wage and Hour Division of the U.S. Department of Labor, where he was a specialist in compliance issues involving Section 14(c) of the Fair Labor Standards Act. Since 1986, Mr. Knuckles has operated Mark Knuckles Associates in Hickory, North Carolina. Mark Knuckles Associates provides advice and assistance on compliance with the Fair Labor Standards Act, with a particular emphasis on Section 14(c) Certificates. By virtue of his deep experience in the subject area, I find Mr. Knuckles to be qualified as an expert generally on compliance with Section 14(c).

After Petitioners filed this matter, Mr. Knuckles was retained by Respondent to review Respondent’s compliance with Section 14(c). Mr. Knuckles also performed standard setter testing and testing of the Petitioners on the Creform line. While I find Mr. Knuckles to be knowledgeable about Section 14(c) in general, I have difficulty considering him as an expert when he testified about the Creform line production studies performed at Fostoria. I largely discount Mr. Knuckles’ opinions about the Creform production tests for the following three reasons: (1) The production studies themselves involve (a) starting a stopwatch, and (b) counting how many jigs pass a given point in a given amount of time, and (c) performing a few simple calculations to determine how many jigs per hour are being produced by the person being tested. I do not believe this aspect of Mr. Knuckles’ testimony should be considered as “expert” under Evidence Rule 702(a) as I do not believe it involves “scientific, technical, or other specialized knowledge”; (2) The wide variances in the results of the Creform line production tests causes me to believe that either the testing is not based upon “reliable principles and methods” in violation of Evidence Rule 702(c), or Mr. Knuckles has not “reliably applied the principles and methods to the facts of the case” in violation of Evidence Rule 702(d). I simply cannot reconcile how Ms. Fretz participated in standard setter tests which produced 1,114 jigs/hour in a 2013 test which Respondent considered to be reliable,85 and was then inexplicably86 able to produce 1,607 jigs/hour in an 2015 test also considered to be reliable87; and (3) there is no data accurately describing how many of the performance tests administered to the Petitioners were actually done. Any testimony about these tests cannot possibly be “based upon sufficient facts or data,” and is thus not admissible under Evidence Rule 702(b).

VIII.    RESPONDENT IS SUBJECT TO THE ACT

In its post-hearing brief, Respondent raises—for the first time—the argument that “[p]etitioners failed to allege or prove that Respondent is engaged in interstate commerce.” I note the coyness with which this argument is posited: Respondent (which would be subject to sanctions under Rule 18.35(b) of the Rules of Practice of the Office of Administrative Law Judges for the knowing assertion of an untrue fact) never says that it is not subject to the Act. It only claims that Petitioners “failed to allege or prove” that Respondent is engaged in interstate commerce.

As noted earlier, I had the opportunity to visit the Fostoria manufacturing facility where the Petitioners are employed. While there, I saw product coming into the plant, the kind of work being performed with that product, and the volume of finished product being produced. The Respondents spent much of their time producing product related to the sale of rubber flooring and moldings. These are construction materials. Given the testimony of the Petitioners and the witnesses who supervise the work at the Fostoria manufacturing facility, and given my own observations of the type and volume of work occurring in Fostoria,88 and given my observations about the lack of new construction in either Tiffin (where the hearing was held) or Fostoria (where the Petitioners work), it strains credulity that all the construction materials being shipped day after day from the Fostoria work site are remaining in this state.

If Respondent truly believes that it is not engaged in interstate commerce, and thus not subject to the Act, and if Respondent truly believes that I had no jurisdiction whatsoever to schedule or conduct a week-long hearing costing the parties tens (or hundreds) of thousands of dollars, then I certainly would have expected Respondent to have mentioned such a claim during our initial case management conference or at the weeklong hearing. Had the issue been raised during that prehearing conference,89 I would have requested full briefing of the matter before the hearing ever commenced. Had I decided to proceed with the hearing, Respondent would then have had a full opportunity to adduce all of the evidence needed for me to make an informed decision on this matter. Instead, I have only the shadow of an argument raised for the first time after the record has been closed. I hold Respondent entirely at fault for depriving me of the opportunity to review a fully developed factual record that would either support or refute the claim (never actually made90) that Respondent is not subject to the Act.

There is no “pleading” requirement in this case.91 The regulations governing petitions seeking review of special minimum wages states explicitly: “[n]o particular form of petition is required, except that a petition must be signed by the individual, or the parent or guardian of the individual, and should contain the name and address of the employee and the name and address of the employee’s employer.”92 It is thus abundantly clear that Petitioners were not required to “plead” any jurisdictional prerequisites when submitting their petition.

The evidence at the hearing was that Respondent repeatedly applied for Section 14(c) Certificates so that Respondent might pay commensurate wages to the Petitioners and their co-workers, and to thereby comply with the Act. Each of the applications signed by Mr. Biggert contains a “Representation and Written Assurance” that Respondent’s “operations are and will continue to be in compliance with the FLSA.”93

The Section 14(c) Certificates issued by the Department of Labor require Respondent to pay special wages only in compliance with the Act.94

Soon after the petition in this matter was filed, Respondent retained the consulting services of Mr. Knuckles—who was valued for his expertise in maintaining compliance with the Act. Mr. Knuckles’ expert report states that he was retained “to provide a professional opinion regarding the Respondent’s compliance with the Fair Labor Standards Act.”95 At the very outset of his analysis, Knuckles assumes:

The workers of the Respondent are engaged in interstate commerce and subject to the Fair Labor Standards Act, FLSA, each week, in that they manufacture, process, package, or otherwise handle goods moving in interstate commerce or their work is closely related and directly essential to the movement of those goods and products in interstate commerce.96

In the very first sentence of his expert report, Mr. Knuckles states that he was retained by counsel for Respondent, and it thus seems exceedingly improbable that Mr. Knuckles’ observations as to the applicability of the Act were not flyspecked by counsel prior to being included in an expert report. I am constrained to conclude that the discussion of the Act in Mr. Knuckles’ expert report fairly states the real position of Respondent.

Respondent rested its case without presenting any facts by which I could determine whether Respondent is subject to the Act. In light of the pleading requirements in 29 C.F.R. § 525.22(a), and the “informality” requirements of §522.22(c), I conclude that Respondent had the burden to go forward with any such evidence.

Based upon the state of the record, I conclude that the Act applies to Respondent.

IX.       PETITIONERS ARE NOT IMPAIRED FOR THE WORK BEING PERFORMED

The regulations implementing Section 214(c) of the Act provide:

An individual whose earning or productive capacity is not impaired for the work being performed cannot be employed under a certificate issued pursuant to this part and must be paid at least the applicable minimum wage.97

I construe the regulation in the following manner: in order to be eligible to be paid a special minimum wage, an individual must have a (1) diagnosed impairment (2) having signs or symptoms (3) which, when supported by a fair assessment of objective evidence, can be said to consistently suppress the wage earning capacity of the individual (4) when the individual is performing a specific job involving a specific set of tasks. By way of example: an individual with a diagnosed impairment causing diminished strength in the hands might be disabled for work involving the assembly of parts by hand, but would likely not be disabled for operating a machine which is operated only by the use of foot controls. I construe the regulation to require proof of a clear nexus between the diagnosed impairment and the impact of that impairment on the actual work tasks being performed in order to justify the payment of a special minimum wage.

Respondent offers two types of evidence in support of its belief that Petitioners are “impaired for the work being performed” on the Creform line: (1) observations of the Petitioners’ work habits when they are working on the Creform line, and (2) the number of jigs produced by Petitioners per hour when they have been tested as part of setting their individual hourly pay rate.

As to the first category of evidence—observations of the Petitioners at work—several witnesses offered their views. One such observation of Petitioners was made by the Respondent’s witness, Mark Knuckles:

During my observation of the work at Respondent and that performed by the Petitioners, I observed several factors with the Petitioners that would account for below standard productivity, such as going off task when work was waiting for them, watching other workers and staff instead of working, getting up and leaving the work station during production, not following the prescribed work method, and attempting to work too fast and making mistakes.98

Later, Mr. Knuckles summarizes his opinion:

[T]he below standard productivity of the Petitioners can only be attributed to the off-task behaviors, lack of focus, not following the prescribed work method, trying to go too fast, and leaving the work station, all common behaviors I observed.99

Mr. Biggert also testified as to his observations of the Petitioners’ work habits. As to Ms. Steward:

[S]he has a hard time keeping pace. Sometimes it is learning a new task and the training of a new task that we get in can be difficult. In some instances there’s a bit of retraining that needs to be done. Her ability to follow directions can sometimes be hindered. We’ve had instances where she’s tried to place two or three pieces into a punch or a drill at a time to try to speed up her own pace. But the machine will only take, you know, won’t take three at a time as far as impairing the quality of the product, you know, and needs the reminder from staff to stay on task and do those tasks the way they’re prescribed.

Q.        And based on your experience you think that that’s a product of her disability?

A.        Yes, I do.100

Mr. Biggert testified about Mr. Felton’s work:

Q.        Okay. Have you observed Mr. Felton at work?

A.        Yes, I have.

Q.        How often have you been able to observe him at work?

A.        Quite often. I mean, I’m over there at least one to two days a week.

Q.        Have you noticed anything that you would consider a manifestation of his limitations or diagnosis at work?

A.        Yes.

Q.        Like what?

A.        Sometimes a hard time following directions; sometimes obsessive components, which are commonly associated with Asperger’s, where he may obsess on a peer or have an issue with another peer. You see his focus drift from his work to maybe an issue that he had last night or an issue he’s having with someone specifically.

Q.        And how does that impact his productivity?

A.        Sometimes he’ll walk away from his work station and completely—not just from his station but literally walk to the other side of the facility to check up and see on what somebody is doing or try to see what somebody is up to, and it may be focused on a conversation he had last night or any number of other factors.

Q.        Have you seen whether the staff attempt to redirect him in those instances?

A.        The staff do try to redirect him, yes.

Q.        Is this something that happens regularly or infrequently or what?

A.        It happens with some regularity.

Q.        Okay. Do you—based on what you know from being an SSA and Adult Services Director, do you make any connection between those behaviors and his diagnosis and limitations?

A.        Yes.101

Mr. Biggert testified about Mr. Magers’ work habits:

I am able and other staff are able to observe some troubles that Joe will have from time to time in being able to discern between types of material, if he gets them reversed, or whether material is in a space or ready to be placed or has already been placed. He has a hard time discerning that a mistake has occurred and needs staff direction to help him with that.

Q.        Do you rank that to his disability of optic atrophy or vision impairment?

A.        Yes.

JUDGE BELL: Can you describe for me what you mean when you say "difficult for him to tell whether a mistake has occurred"?

THE WITNESS: In the case of maybe placing two of the samples onto a chain in the wrong order, he won’t necessarily be able to tell that the pieces are in the wrong order, or in some cases I’ve witnessed him get confused as to whether he might have a couple of jigs in front of him and become confused as to whether he’s put pieces on them yet or not and can’t discern whether the job or that job task has been completed without assistance from staff.

JUDGE BELL: Okay, thank you.

BY MR. KESSLER:

Q.        Have you noticed—and I'm sorry, I was only half listening during your answer. Did you talk about whether he has difficulty telling colors apart?

A.        He can also have some difficulty with colors.

Q.        And if, for example, the chain gets knocked off the post, does that create any problems for him?

A.        It can create some problems for him. He can have some issues with getting it back on the post, or in the case that the post or the jig comes to him with the chain already off the post, he can sometimes have an issue noticing that it’s off the post to begin with or have an issue with correcting it, and would need staff to assist him with that.102

Laurie Fretz is the Division Manager at the Fostoria facility. She has contact with Petitioners on each day when they are working, and is in a good position to observe their work behavior. She testified about Mr. Magers’ work:

Q.        And for Mr. Magers, have you observed a vision impairment impact his productivity?

A.        Yes.

Q.        And have you seen him have problems on Creform line?

A.        Yes, at times. He has to feel for the pieces, the holes, and then put them on the jig. There was a time when we just did the last time study where he put some pieces on—I’m not sure why he took them off, but when he took them off, the chain came off, and he dropped a piece and he asked staff for assistance to put it back on, and he asked from time to time.

Q.        And do you know what he asks for from time to time?

A.        If he needs help with something. Sometimes he might ask if, you know, if he may have taken a color out and put it in the wrong tub or something like that.103

Ms. Fretz testified about Mr. Felton:

Q.        Okay. And for Mr. Felton, have you observed whether his disabilities impaired his productivity?

A.        Yes.

Q.        And how would you describe his ability to stay on task?

A.        Sometimes it’s not good. Sometimes he has a hard time paying attention. He’ll walk away from his work station. One of the last ones that I observed was during a—the time study that we did. He picked the jig up and walked to the other end of the line where Pam was and said something to her, and then walked over and put it on the table, which was holding everybody else up on the line because he had walked away.

Q.        Does he often walk away from his work station?

A.        It depends on the day. If he’s upset, he walks away a lot, goes to the restroom a lot.

Q.        You answered part—what does he do when he walks away?

A.        Usually he can—it’s usually—well, it depends. He might go, you know, talk to somebody or—which they’re allowed to talk, but usually he’ll like go to like the other end to talk to somebody or—I don't know. I don't know, it’s hard to explain. When you’re on the line, if he’s on one end and he leaves to go make conversation with somebody, then that holds up the line. It stops the line. The people beside him can’t push jigs down and then nobody can have work that’s on the other side.

Q.        And the times that you have seen him walk away, I mean, does he walk away to go to the bathroom?

A.        Yes.

Q.        There’s nothing wrong with that?

A.        No.

Q.        Does he walk away to get a drink of water?

A.        Yes. Usually if they go to the restroom or want a drink of water or whatever, they’ll tell staff, then staff will cover for them.

Q.        And that’s normal?

A.        Yes.

Q.        And that’s not an issue, that’s not what you’re addressing when he walks away from the line?

A.        No.

Q.        Okay. How would you describe his ability to follow directions?

A.        Sometimes he has a hard time accepting direction from staff.

Q.        And what happens—what does he do?

A.        Sometimes he can become upset, belligerent, disrespectful to staff, and he’s hard to calm down at times.

Q.        Have you observed that on any particular job or any—that’s two questions. Have you observed that on any particular job that he’s working on?

A.        It could be on any job actually. It depends. He could be upset, not because of the job, maybe because of a peer or, you know, a staff asked him to return to his work station if he’s over making conversation with somebody.

Q.        I think you said he gets upset.

A.        Yes.

Q. And when was the last time he got upset?

A.        It was the week before Christmas break. Another peer came to me and said that he didn’t want to work on the line where Mark was because Mark had left a message on his cell phone and was saying some inappropriate things and using vulgar language about his girlfriend, and he let me listen to it and it was Mark’s voice, and I said okay, so I let him work in Building 1. And in the meantime, Anita had—which is Mark’s boss—had came to me and said that Mark had went off task and he was in the restroom crying and after their break, which was 10:30, Mark and Pam came to me and asked me to help resolve the situation, which I already knew what was going on, so I asked the peer if he wanted to talk to them, and he said yes. And Mark apologized and they made up, and he lost about two hours of work over the whole situation.104

Ms. Fretz testified about Ms. Steward:

Q.        Okay. For Ms. Steward, have you observed whether her disabilities impair her productivity?

A.        Yes.

Q.        Have you seen her have problems with manual pad print?

A.        Yes, there’s been some times—she’s been trained on the job. Sometimes she’ll get going too fast and pass bad pieces, not having in the insta-guide. Then when it stamps, it’s crooked. Just not checking the pieces and then they have to be scrapped.

Q.        Have you had issues with her on any other jobs?

A.        She’s not near the standard on some of the other jobs, although the saw, she does very well on. She’s one of the best ones that we have to cut the tread.

Q.        And do you try to put her on the saw for that reason?

A.        Yes, but we don’t have—we don’t—I have to follow what the customers want and I don't always have the tread to saw.

Q.        You may not have the job available every day?

A.        Correct.

Q.        And that wouldn’t be limited to Ms. Steward?

A.        No.

Q.        Nobody else would do the job that day?

A.        No. If there’s no material, there’s nothing to do.

Q.        Has Ms. Steward ever refused to do a job?

A.        Yes.

Q.        And what was that?

A.        Actually the sawing job, I asked her to do it—it was either the week before our break or the week before that—and it actually kind of shocked me that she said no, but I usually don’t ask why, I just ask somebody else to do it.

Q.        Is that typical for her?
 
A.        Not usually, no. That’s why I was kind of shocked that she refused to do it.105

On balance, I find the foregoing observations to be of little to no help when I am deciding whether Petitioners are disabled for the work performed at Fostoria. By the time Mr. Knuckles first observed Petitioners at work, this proceeding was underway, and Mr. Knuckles had been enlisted as a witness for Respondent. That business relationship could not help but color Mr. Knuckles’ observations of the Petitioners. Additionally, Mr. Knuckles had only a very limited amount of time in which to observe Petitioners at work. From the testimony he offered at the hearing, he was performing all sorts of tests and measurements during his brief time in Fostoria, and his opportunity to gather anything more than anecdotal information about the job performance of the Petitioners is questionable. Nor does Mr. Knuckles have medical, psychological or other specialized training which would permit him to draw meaningful conclusions about how Mr. Magers’ visual impairment actually affects his workplace performance, or how Ms. Steward’s intellectual disability actually limits her when she is performing work, or how Mr. Felton’s disability allows him to possess a driver’s license, but does not permit him to place pieces of flooring on a metal spindle as quickly as someone else. It is not clear whether Mr. Knuckles was able to see Petitioners working anywhere other than the Creform line. Mr. Knuckles’ testimony about Petitioners’ work performance is not persuasive.

I discount almost entirely Mr. Biggert’s observations of Petitioners at work. Mr. Biggert testified that he was only in the Fostoria manufacturing facility one or two times per week.106 Presumably he was not there to watch the Petitioners perform their jobs. Approximately 80 people work in Fostoria. I do not believe Mr. Biggert was ever in a position before the initiation of this proceeding to make the kind of detailed observations of Petitioners over a long enough period of time that his testimony describes the consistently applicable work characteristics of the Petitioners. As is the case with Mr. Knuckles, I greatly discount any observations of Petitioners after the initiation of this case. I find that the objectivity of observation demanded when applying §214(c) is compromised once high-stakes litigation is underway. Mr. Biggert’s testimony about the Petitioners in not persuasive.

Ms. Fretz’ observations are generally anecdotal, and do not present a longitudinal explanation of how the Petitioners’ acknowledged disabilities have affected their work performance over the lengthy time she has watched the Petitioners at work. She admits that her snapshot observations of Ms. Steward, in part, are “not typical” of Ms. Steward’s actual job performance.107 Her observations of Mr. Felton’s holiday meltdown108 do not inform me of how Mr. Felton’s disabilities consistently affect his job performance.

For his part, Mr. Felton flatly denies the observations that he “lacks focus” while working on the line:

Q.        Okay. Do you remember with any of the time studies that was done whether you got up and walked away from the line while you were being tested?

A.        No.

Q.        You don't recall or you didn't?

A.        I didn't.

Q.        Do you recall if you ever lost focus on what you were doing?

A.        No.109

It is not necessary for me to resolve the specific dispute between Mr. Felton’s view of his workplace behavior and that of his supervisors. After observing all of the witnesses as they testified, and after evaluating their credibility, I am not persuaded that the observations of the Petitioners made by Mr. Knuckles, Mr. Biggert and Ms. Fretz establishes that they are disabled for the work performed by them at Fostoria. Instead, it seemed as though a scripted narrative was being played out.

I had the opportunity to visit the Fostoria facility while production on the Creform line was ongoing. I also had the chance to view many of the jobs in Fostoria which are paid on a piece-rate basis. The jobs being performed by Petitioners are simple and straightforward. The jobs have been designed so they might be performed by persons with all different types of disabilities. Watching actual production take place on the Creform line did not help me to understand in the least why Petitioners’ respective impairments might slow them. The same can be said for the piece-rate work I was able to observe. There is nothing about the work itself which would inherently favor production rates by a non-disabled person over the production rate of an individual with one or more disabilities.

Lastly, I had the unique opportunity to observe each of the Petitioners while each was on the witness stand and to thereby make a credibility determination. Equally important, I was able to carefully observe Petitioners as they sat in the courtroom during more than 30 hours of testimony. I was able to evaluate the Petitioners as they entered and left the courtroom, as they interacted among themselves and with the other people in the courtroom. In the compact downtown of Tiffin, Ohio, I even occasionally saw the Petitioners as they arrived at the courthouse or went to lunch, or as they waited for rides at the end of the day. Mr. Magers’ visual impairment did not interfere with his ability to be a full participant in the courtroom activities. Mr. Felton did not have any emotional outburst such as that described by Ms. Fretz. Ms. Steward seemed to have no difficulty seeing what was happening in the courtroom or understanding the sometimes complex testimony.

Respondent next argues that I should consider the Petitioner’s individual hourly production rates when determining whether they are “impaired for the work being performed” on the Creform line.110

At the outset of this analysis, I note my significant reservations about the quality of the production data maintained by Respondent. These reservations are discussed in detail in Section X of this Decision and Order.

I have carefully reviewed the hourly production on the Creform line of each Petitioner.111 It is undeniably true that the Petitioners have never produced on the Creform line at the production standard which was in effect at the time the testing took place.112 However, I have no medical, psychological or other evidence in the record which explains (in a cause-and-effect manner) why this is so. On the record now before me, it would be pure speculation to conclude that the Petitioners don’t meet the production standards solely or primarily because of their respective disabilities. It is just as likely they don’t meet the production standards because they are bored with a highly repetitive task they have performed on a hundred prior occasions, or because they lack a substantial economic impetus to perform at a higher level,113 or because they self-identify as individuals whose performance should be lower than their non-disabled supervisors. I find there to be no proof in the record that Petitioners are intrinsically incapable of performing at the level of their non-disabled supervisors because of Petitioner’s visual impairments, intellectual disability or Asperger’s disorder. No such causal relationship has been persuasively demonstrated.

When Mark Knuckles measured the Creform line production rates of Mark Felton and Joe Magers in December 2015, he obtained the following results: Mr. Felton was able to produce at the rate of 1,029 jigs per hour in test number 2.114 Mr. Magers was able to produce at the rate of 978 jigs per hour in one test, and 816 jigs per hour in a second test.115 These measured production rates are above (and in some cases well above) the rate of production established by the non-disabled standard setter in 2010, and above the standard units per hour measure that was in place for all Creform line workers between 2010 and 2013.116 Nothing about the Creform line process changed between 2010 and 2015. The fact that the Petitioners were able to meet—and exceed—what had been the production standard set by a non-disabled supervisor contradicts the inference that Petitioners work performance numbers establishes that they are disabled for the work performed.

The same is true for piece-rate work. When performing jobs paid on a piece-rate basis, each of the Petitioners occasionally has been able to earn more than minimum wage. I believe this fact directly refutes the conclusion that the Petitioners are disabled for the work they perform in Fostoria. As noted above, Mark Felton was able to earn more than $14.00 per hour on the Click 5 machine.117 Joe Magers was able to earn nearly $9.00 per hour on a piece-rate job called “Affix Screw and Remove.”118 Pamela Steward was able to earn $11.84 per hour on a drill press.119 Based upon my observation of these jobs during the visit to the Fostoria facility, these other jobs seem comparable to the Creform line in terms of skill level. The fact that Petitioners have been able to exceed minimum wage in piece-work jobs of similar complexity to the Creform line effectively rebuts the notion that Petitioners are disabled for the work performed by them.

After making my own observations of the production processes in the Fostoria manufacturing facility, and after making my own observations about the practical impact of the Petitioners’ disabilities on their public lives, I conclude that while each of the Petitioners unquestionably has one or more disabilities, those disabilities should not, and do not, impair any of the Petitioners from performing any of the jobs in Petitioner’s Fostoria facility. I conclude that Respondent has not had in the past, and does not now have, the legal ability to employ any of the Petitioners under a Section 14(c) Certificate, and that each of the Petitioners has been, and is now, entitled to earn at least minimum wage when working in the Fostoria manufacturing facility. For these reasons, I find Respondent has not paid Petitioners the minimum wage to which Petitioners have been entitled, and that Respondent has thus violated §206 of the Act.

X.        RESPONDENT HAS FAILED TO PROVE THE PROPRIETY OF THE WAGES PAID

The Regulations implementing Section 214(c) of the Act provide:

In determining whether any special minimum wage rate is justified, the ALJ [administrative law judge] shall consider, to the extent evidence is available, the productivity of the employee or employees identified in the petition and the conditions under which such productivity was measured, and the productivity of other employees performing work of essentially the same type and quality for other employers in the same vicinity and the conditions under which such productivity was measured. In these proceedings, the burden of proof on all matters related to the propriety of a wage at issue shall rest with the employer.120

I conclude Respondent has failed to demonstrate by a preponderance of the evidence that the wages actually paid to Petitioners during the relevant period have been properly calculated. The following are examples of the significant shortcomings of the Respondent’s calculations:

(1)        Over the past four years, the hourly production standard set by non-disabled supervisors acting as “standard setters” on the Creform line has increased from 816 to 1,607 jigs per hour. No explanation for this 100 percent increase in performance was offered at the hearing. No changes to the method of production on the Creform line occurred during the time when this increase occurred. Mr. Knuckles testified that the rate of production of non-disabled workers should remain relatively constant over time:

Q.        So all three, Pam, Mark and Joe, who have very different disabilities, all consistently performed higher at piece rate jobs than on the hourly jobs, is that right?

A.        That's correct.

Q.        Different disabilities?

A.        Correct. It's not unusual; very common.

Q.       Yeah. Among people with disabilities there's huge variations in ability, how they're going to do all of these different types of jobs, right? Is there, in your experience, variation in the abilities of folks without disabilities to perform these types of jobs?

A.        To perform these types of jobs?

Q.        Yes.

A.        I wouldn't think that they—without disabilities there would be—I haven't done any studies of people doing these types of jobs. These are different jobs than you would find out in industry, typically. But would we find differences? There would be some differences, yes, but generally not as much.121

The variability in the performance results of the same non-disabled person (Laurie Fretz) performing the same test over a 2-year span is quite large. The establishment of this production standard was of critical importance to the calculation of the Petitioner’s weekly wages. The unexplained 100 percent variance in the production rate of the standard setters convinces me that the numbers have not been properly derived from any defined professional methodology, and are, in fact, arbitrary.

(2)        Respondent presented no evidence about how the 816 jigs per hour standard was set in 2011. The hourly rate of the Petitioners was dependent upon that standard until October 2013. Without evidence which allows me to evaluate the methodology used to set the 816 jigs per hour standard, and in light of my serious concerns about how all other standards have been set and documented, I do not presume the 2011 test was properly done and/or properly documented. I cannot find Respondent has met its burden to prove the propriety of the wages paid prior to the 2013 performance standard test.

(3)        The establishment of the performance standard in 2013 was based upon a flawed methodology. As described in detail above, the 2013 performance standard122 was extrapolated from the results of testing which lasted less than one minute. The individual who performed this test acknowledged at the hearing that these intervals were too short to generate a valid study:

Q.        Okay. So when you made the decision—and I assume it was your decision, tell me if it wasn't—to run the first test here for 52 seconds, did you believe that was an appropriately long period in order to be able to make a fair assessment of the standard setter's performance?

THE WITNESS: In looking back, no.

JUDGE BELL: Okay. So I assume you would say the same thing for 47 seconds?

THE WITNESS: Correct.

JUDGE BELL: And the same thing for 59 seconds?

THE WITNESS: Yes.123

This flawed production standard played a pivotal role in calculating the amount of money paid to the Petitioners from October 2013 to January 2016. In light of the admission that these test results are flawed, the “propriety” of the wages paid to the Petitioners based upon that testing has not been established.

(4)        As noted above, when comparing Exhibits C-1 and C-2, there is a dramatic difference in performance by the standard setters. On September 30, 2013 (Exhibit C-1), supervisor Laurie Fretz produced 20 jigs in 59 seconds during the third test reported on that Exhibit. On December 16, 2015 (Exhibit C-2), Ms. Fretz produced an average of 26 jigs per minute during the second reported test. Ms. Fretz was thus measured to be producing about 360 more jigs per hour in 2015 than she had produced in 2013. Nothing on the Creform line had changed during this time, nor had the method of production changed. These tests have a direct and substantial impact on calculation of the hourly wage to be paid to the Petitioners. The unexplained variance in the production rate of Ms. Fretz when acting as a standard setter convinces me that the production numbers have not been properly derived from any defined professional methodology, and are, in fact, largely arbitrary.

(5)        Respondent has a tolerance for wide variance in performance test results that I do not share, and which I do not believe generates information that should be admissible as evidence. Mr. Knuckles was asked about his tolerance for variability:

JUDGE BELL: I'm sorry, did you run two different samples?

THE WITNESS: Yes.

JUDGE BELL: So the first sample he produced 717 units per hour and the second 1,028 units per hour?

THE WITNESS: Yes.

JUDGE BELL: And are those thought by you to be consistent?

THE WITNESS: Consistent, yeah. Yes, they're good. Yes, these are good samples.

JUDGE BELL: But they are 20-some percent–

THE WITNESS: Yes. Well, while I was observing Mark, there's other factors in there. Mark would get up and move around, lose focus on the work. So that could explain the difference here.124

Respondent seeks to admit the results of these performance tests through Mr. Knuckles to support Mr. Knuckles’ opinion that the Petitioners are disabled for the work performed in the Fostoria manufacturing facility. Under the standard set forth in Daubert v. Merrell Dow Pharmaceuticals, I am constrained to take notice of the error rate when evaluating the admissibility of expert opinion:

Additionally, in the case of a particular scientific technique, the court ordinarily should consider the known or potential rate of error, and the existence and maintenance of standards controlling the technique's operation.125

Here, I believe the variances between the performance tests prevents them from being offered by Mr. Knuckles as evidence the Petitioners are disabled for the work performed by them.

(6)        The documentation of the Petitioner’s performance tests on the Creform line contains inaccuracies. The majority of these forms incorrectly state the Petitioners were timed for a full one hour, when it is now clear that was not the case. Respondent cannot sustain its burden to prove the propriety of the wages paid without clear, accurate, contemporaneous records of what was done during these crucial performance tests.126

(7)        The fact that the Petitioners have occasionally been able to perform at minimum-wage levels when performing piece-rate work leads me to believe that the job testing on the Creform line systematically suppresses the volume of production of which each Petitioner is capable. No explanation has been offered as to why Petitioners allegedly perform so much better on some piece-rate work than they do on the Creform line. In the absence of an explanation, and for all the reasons stated above, Respondent has failed to demonstrate the “propriety” of the wages paid to Petitioners.

For the reasons stated above, Respondent has failed to sustain its burden to prove the propriety of the wages paid to the Petitioners. Where, as here, the Respondent has failed to prove the propriety of the wages paid, the consequent failure of Respondent to pay minimum wage to the Petitioners constitutes a violation of §206 of the Act.127

XI.       DAMAGES

Under 29 U.S.C. §216(b), employers who fail to pay minimum wage to their employees are liable to the affected employees for the amount of their unpaid minimum wages plus “an additional equal amount as liquidated damages.”128 I have been supplied with approximately three years of detailed wage information for each Petitioner, and I have been asked to award each Petitioner the difference between minimum wage and what the Petitioner was actually paid by Respondent for that period.129 Petitioners have not asked me to award them liquidated damages, interest or attorney fees.

A.        The Statute of Limitations in §255 of the Act does not Apply

Petitioners and Respondent are in agreement that §255 of the Act establishes a two-year statute of limitations for back pay claims absent willful violations of the Act, and they agree that statute of limitations is applicable to this case.130

I disagree with the parties, and I find that the statute of limitations contained in 29 U.S.C. §255 is not applicable to this proceeding. The statute states:

Any action commenced on or after May 14, 1947, to enforce any cause of action for unpaid minimum wages, unpaid overtime compensation, or liquidated damages, under the Fair Labor Standards Act of 1938 . . . may be commenced within two years after the cause of action accrued, and every such action shall be forever barred unless commenced within two years after the cause of action accrued, except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued;

I find the matter before me is not an “action commenced . . . to enforce any cause of action for unpaid minimum wages, unpaid overtime compensation, or liquidated damages” under the Act. I find instead that this is a petition directed to the Secretary of Labor seeking to “obtain a review of such special minimum wage rate”131 being paid to the Petitioners. “Petitions” brought pursuant to §214(c)(5)(A) are clearly distinguishable from an “action commenced . . . to enforce any cause of action for unpaid minimum ages” in at least the following respects: (1) the §214(c)(5)(A) proceedings are conducted by Administrative Law Judges, not by the Article III judges who preside over the “actions” to which §255 applies; (2) the parties to the “actions” referenced in §255 seek to obtain conclusive judgments, while the object of “petitions” under §214(c)(5)(A) is to obtain the “final agency action” referenced in §214(c)(5)(E) and (F). I conclude that Section 255 refers and is applicable to lawsuits brought in an Article III court, and I further conclude that the statute of limitations contained in §214(c)(5)(E) does not apply to this administrative proceeding before the Secretary of Labor and his delegees.

I further find that application of the statute of limitations in §255 of the Act to the facts of this case would create an irreconcilable conflict with the regulations governing my calculation of damages:

If the ALJ finds that the special minimum wage being paid or which has been paid is not justified, the order shall specify the lawful rate and the period of employment to which the rate is applicable. In the absence of evidence sufficient to support the conclusion that the proper wage should be less than the minimum wage, the ALJ shall order that the minimum wage be paid.132

The plain reading of 29 C.F.R. §525.22(e) instructs me to determine the “period of employment” over which unpaid minimum wages are to be paid to the Petitioners. There is no reference in 29 C.F.R. §525.22(e) to the statute of limitations contained in §255 or the Act, or to any other temporal limitation on the calculation and award of back pay. I am thus constrained to calculate the “period of employment” without regard to the §255 statute of limitations.

I further decline to import the statute of limitations contained in §255 of the Act because of significant problems which would arise if one attempted to apply the “willfulness” standard to matters brought under §214(c)(5)(A). The problems which would inevitably arise when attempting to apply the statute of limitations of §255 of the Act to petition actions commenced under §214 of the Act lead me to conclude that the authors of the Act did not intend the §255 statute of limitations to apply to §214 petition matters.

In McLaughlin v. Richland Shoe Co.,133 the word “willful” was given the following meaning:

In 1965, the Secretary proposed a number of amendments to expand the coverage of the FLSA, including a proposal to replace the 2-year statute of limitations with a 3-year statute. The proposal was not adopted, but in 1966, for reasons that are not explained in the legislative history, Congress enacted the 3-year exception for willful violations.

The fact that Congress did not simply extend the limitations period to three years, but instead adopted a two-tiered statute of limitations, makes it obvious that Congress intended to draw a significant distinction between ordinary violations and willful violations.

In common usage the word "willful" is considered synonymous with such words as "voluntary," "deliberate," and "intentional." See Roget's International Thesaurus § 622.7, p. 479; § 653.9, p. 501 (4th ed.1977). The word "willful" is widely used in the law, and, although it has not by any means been given a perfectly consistent interpretation, it is generally understood to refer to conduct that is not merely negligent. The standard of willfulness that was adopted in Thurston—that the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute—is surely a fair reading of the plain language of the Act.134

There is no question here that Respondent willfully did not pay minimum wage to the Petitioners. Instead, Respondent sought and obtained from the Department of Labor a series of Section 14(c) Certificates prior to paying Petitioners less than minimum wage for their labor. I find the notion of “willfulness” set forth §255 of the Act (and as defined in McLaughlin v. Richland Shoe) overlooks the explicit authorization in the Act for an employer to willfully pay employees less than minimum wage under certain circumstances. Importation of a willfulness standard to §214(c)(5)(A) proceedings is highly problematic, and it does not seem to me that Congress intended to apply the willfulness standard of §255 to petitions brought under §214(c)(5)(A).

A willfulness standard is inconsistent with the special relationship between Petitioners and Respondent. Petitioners are not involved in competitive employment. While they are “employees” in the sense that they exchange their labor for compensation, they are simultaneously “clients” of the Seneca County Board of Developmental Disabilities when at work. While the immediate objective of the Petitioners may be to maximize their wages, the objectives of Respondent are not limited to the labor-for-compensation exchange. The overarching responsibility of Respondent is to provide rehabilitation services to each Petitioner. In the discharge of its overarching responsibility to provide services, Respondent willfully makes many workplace choices which dramatically suppress the ability of the Petitioners to earn wages. An example of such a choice—and of the tension between being an “employee” and a “client”—was discussed during Dr. Schroeder’s testimony:

JUDGE BELL: Each of the Petitioners testified yesterday that some portion of their workday, and I'm just going to say approximately an hour of each workday, is spent in nonproductive work, a social activity of some kind, an educational activity of some kind. Did you discuss that or are you aware of the fact that that's part of their daily schedule?

THE WITNESS: Yes. And that's—yes,

JUDGE BELL: And is that a hallmark of sheltered work?

THE WITNESS: It's not uncommon. It's—in other words, it's not something that's necessarily designed in, that a shop must make allowance or would be expected to make allowance for social or recreational activities, but it's very common. And I mentioned earlier the idea of no sense of urgency. I think that's part of that whole mosaic in sheltered facilities.

JUDGE BELL: I don't want to put words in your mouth. Can you extrapolate what you just said for me, please?

THE WITNESS: Oh, all right. I'll do my best. In other words, in an ordinary work environment you don't have social activities as part of the workday. And where I'm going with this is one of the concerns about facilities is the mindset that the individuals who work there are not employees but clients, that they're recipients of services. And that's—that creates a very different set of expectations and a very different work environment. If you listen to self-advocates who have worked in segregated facilities, they talk about being treated like children, having their decisions managed.

And I'm not—I don't—I'm not making any assertion about this particular facility and I'm not trying to disparage it, but I'm saying that the work environment is very often one of low expectations and not intentionally, not deliberately, but when you hear about extended break times, social activities, going on walks, these are not things that you would ordinarily have in the competitive work environment and it—so it sets a different climate, a different tone to the workday.135

Respondent makes rehabilitation decisions which may have an adverse impact on the wages earned by Petitioners and their co-workers. These decisions by Respondent are clearly willful (as defined by the Court in McLaughlin). Application of the statute of limitations from §255 of the Act to such decisions by the employer does not seem to be what Congress intended in drafting the Act.

Finally, I reject application of the willfulness standard of §255 because I find it would impermissibly shift an important aspect of proving the “propriety of the wage” from the Respondent to the Petitioners in violation of 29 C.F.R. §525.22(d). In any case where a disabled employee brings her concerns about the propriety of wages paid to the Secretary, the regulations make it clear that “the burden of proof on all matters relating to the propriety of a wage at issue shall rest with the employer.”136

If the employee is asserting (as Petitioners do here) that wages going back more than two years were not properly paid, then requiring such employees to prove willfulness in order to evade the §255 statute of limitations would shift to the employee a burden of proof related to “the propriety of a wage at issue” in order to recover wages not properly paid beyond the second year. Requiring the employee to assume this burden of proof would not only violate the plain language of the regulation, but would add an additional burden to a disabled employee seeking only to vindicate his right to be paid a minimum wage. Many of those being paid special minimum wages under a Section 14(c) Certificate would be expected to have difficulty understanding how the wages paid to them for their labor have been calculated,137 and I conclude that it would be inconsistent with 29 C.F.R. §522(d) to require a petitioner to have the burden to prove willfulness simply in order to obtain a full recovery of the wages to which they are entitled. I believe the burden always remains on the employer to show the propriety of the wages paid in all years.

For all of the reasons above, I conclude that the statute of limitations in §255 of the Act does not apply to this case. Therefore, I will provide Petitioners with an award of underpaid wages for the period December 28, 2012, to December 25, 2015, without requiring them to demonstrate willfulness.

B.        The Award of Back Pay to Petitioners is Appropriate

The controlling regulation states:

If the ALJ finds that the special minimum wage being paid or which has been paid is not justified, the order shall specify the lawful rate and the period of employment to which the rate is applicable. In the absence of evidence sufficient to support the conclusion that the proper wage should be less than the minimum wage, the ALJ shall order that the minimum wage be paid.138

The plain language of the regulation requires me to make three findings in order to calculate the damages to be awarded to each of the Petitioners: (1) determine the amount of the hourly wage to be paid; and (2) determine the period of time over which the hourly wage determined in step (1) is to be paid; and (3) determine the applicable minimum wage for all periods in question.

Consistent with the plain language of the regulation, I find each Petitioner should have been paid the then-applicable minimum wage for each hour of work performed at Respondent’s Fostoria manufacturing facility during the period December 28, 2012, to December 25, 2015. I have chosen to award damages during this period because: (1) that is the only period for which I have detailed wage information for each of the Petitioners, and (2) I find Respondent failed to appropriately calculate the commensurate wage paid to each Petitioner during that entire period.

I have determined that the minimum wage is to be paid during this period because I do not have sufficient credible evidence by which I can accurately calculate the proper wage to be paid. In order to make such a calculation, I would, at a minimum, need credible evidence establishing the rates of production for the Petitioners and the non-disabled standard setters. For the reasons discussed in detail above, I do not believe I can rely on the information in the record to establish an appropriate commensurate wage for each of the Petitioners. The regulation instructs that under such circumstances I am to determine that the minimum wage applies.

I find that the Ohio minimum wage for the period December 28 to December 31, 2012, was $7.70 per hour. The Ohio minimum wage throughout 2013 was $7.85 per hour. The Ohio minimum wage throughout 2014 was $7.95 per hour. The Ohio minimum wage throughout 2015 was $8.10 per hour.

I find that the Petitioners are entitled to the minimum wage for every hour of covered employment. The minimum wage rate will therefore be applied to the three years of wage data supplied by the Petitioners to calculate their entitlement to remedial back pay.

The following table outlines the Petitioners’ hourly damages by year:139

PETITIONER

YEAR

TOTAL HOURS WORKED

COMMENSURATE WAGE PAID

MINIMUM WAGE

TOTAL BACK PAY OWED140

RALPH “JOE” MAGERS

2012

4.5

$2.02

$7.70

$25.56

 

2013

290

$2.52

$7.85

$1,545.72

 

2014

406.04

$4.77
$2.77
$2.79

$7.95

$2,110.45

 

2015

564

$2.94
$3.00
$3.15

$8.10

$2,881.61

TOTAL

 

 

 

 

$6,537.78

PAMELA STEWARD

2012

2.5

$2.00

$7.70

$14.25

 

2013

478

$2.00
$2.05

$7.85

$2,773.76

 

2014

303.5

$3.20
$3.22

$7.95

$1,438.22

 

2015

268.75

$3.22

$8.10

$1,311.50

TOTAL

 

 

 

 

$5,537.73

MARK FELTON

2013

173.75

$2.49
$2.55

$7.85

$921.01

 

2014

397.25

$3.89
$3.93

$7.95

$1,603.32

 

2015

421.5

$3.93
$4.11

$8.10

$1,682.84

TOTAL

 

 

 

 

$4,207.17

I find the Respondent owes Petitioner Magers $6,537.78 in hourly back wages. Additionally, Exhibit A to Petitioners’ Post-Hearing Brief establishes that Petitioner Magers was paid less than minimum wages for 633.75 hours of piece work in 2013, resulting in an underpayment of $1,445.29; 210.25 hours of piece work in 2014, resulting in an underpayment of $655.94; and 54.25 hours of piece work in 2015, resulting in an underpayment of $150.14. I find these piece work numbers to have been correctly calculated, and I adopt them as part of my Decision. Accordingly, in sum, Petitioner Magers is entitled to a total of $8,789.15 in back pay.

I find Respondent owes Petitioner Steward $5,537.73 in hourly back wages. Additionally, Exhibit B to Petitioners’ Post-Hearing Brief establishes that Petitioner Steward was paid less than minimum wage for 11.5 hours of piece work in 2012, resulting in an underpayment of $30.10; 567.25 hours of piece work in 2013, resulting in an underpayment of $1,661.39; 457 hours of piece work in 2014, resulting in an underpayment of $1,445.56; and 251.75 hours of piece work in 2015, resulting in an underpayment of $412.46. I find these piece work numbers to have been correctly calculated, and I adopt them as part of my Decision. Accordingly, in sum, Petitioner Steward is entitled to a total of $9,087.24 in back pay.

I find Respondent owes Petitioner Felton $4,207.17 in hourly back wages. Additionally, Exhibit C to Petitioners’ Post-Hearing Brief establishes that Petitioner Felton was paid less than minimum wage for 9.5 hours of piece work in 2012, resulting in an underpayment of $16.98; 810.5 hours of piece work in 2013, resulting in an underpayment of $3,022.04; 279 hours of piece work in 2014, resulting in an underpayment of $1,302.11; and 156.75 hours of piece work in 2015, resulting in an underpayment of $613.01. I find these piece work numbers to have been correctly calculated, and I adopt them as part of my Decision. Accordingly, in sum, Petitioner Felton is entitled to a total of $9,161.31 in back pay.

C.        An Award of Liquidated Damages to Petitioners is Appropriate

Employers who violate the minimum wage provisions of the Act are liable for not only the unpaid back wages, but also “an additional equal amount as liquidated damages.”141 These damages are considered compensatory, not punitive.142 Double damages are the norm, single damages are the exception.143

Petitioners do not request an award of liquidated damages.144 Respondent argues that the Petitioners “would not be entitled to liquidated damages or attorney fees” because “this proceeding is brought pursuant to 29 U.S.C. §214(c), and 29 C.F.R. Part 525, not sections [29 U.S.C. 20]6 or [20]7.”145 I disagree with Respondent. I find that liquidated damages under §216 are available for violations of §214 of the Act.146

An award of liquidated damages is not automatic.147 An Employer may avoid liability for liquidated damages by establishing it acted subjectively and objectively in good faith in its violation of the Act.148 In such cases, the Employer’s burden is to establish that it had “an honest intention to ascertain and follow the dictates of the Act” and that it had “reasonable grounds for believing that [its] conduct complied with the Act.”149

In analyzing Respondent’s conduct, I note that while the commensurate wages paid to Petitioners were authorized by a series of §214(c) Certificates, that fact alone is not dispositive. Each Certificate states clearly: “The enclosed certificate does not constitute a statement of compliance by the Department of Labor nor does it convey a good faith defense to the employer should violations of the Fair Labor Standards Act . . . occur.”150 To the contrary, I find Respondent’s repeated requests to the Department of Labor for permission to pay Petitioners far less than minimum wage imposes on Respondent a particularly high duty (approaching a fiduciary duty) to make certain every aspect of the Petitioners’ wages have been accurately and fairly calculated.

I reach my conclusion about the existence of this high duty from the following undisputed facts: (1) The regulations151 require the employer possessing a Section 14(c) Certificate to make a series of “written assurances” regarding how the employer will evaluate the compensation paid to employees; (2) Petitioners have disabilities, including intellectual disability. The ability of Petitioners to understand the calculation of the “commensurate wages” being paid to them is very limited, and Petitioners doubtless rely on Respondent to perform the wage calculations accurately; (3) There is an extremely high potential for disabled workers to be exploited in sheltered workshops. This potential becomes more concrete where, as here, Petitioners are engaged in the manufacture of goods being sold by a large corporation such as Roppe Industries.152 Roppe could hire its own employees to replace the labor of Petitioners. If it chose to do so, it would pay those non-disabled workers at least minimum wage. Petitioners have been paid one-half or one-third of minimum wage for their work on the Creform line.

A representative of Roppe occupies a seat on the Board of Directors of Respondent. Roppe Industries is the landlord of Respondent. I find the potential for Petitioners’ exploitation to be high, and thus a high duty of care should be imposed on Respondent to properly calculate their commensurate wages.

One form of potential workplace exploitation comes from the assignment of work in the Fostoria manufacturing facility. Mr. Biggert testified:

Q.        Okay. Do you have a sense or knowledge about how wages break down for workers there on the line versus the—

A.        It varies depending on the job; it varies depending on the worker. There are some jobs that some workers really hit out of the park, and there are other jobs where workers tend to struggle a little bit more.

Q.        So if you had a job where somebody's really hitting it out of the park, as you say, say they're producing at a rate of $14 an hour or $18 an hour as compared to the measure of productivity of the standard setter, would you want to place that person on that job more often?

A.        Yes.

Q.        Is there any reason you wouldn't place that person on the job more often?

A.        No. I mean, job availability sometimes is a bit of an issue. I mean, we don't always need every job running at the same time. Obviously, the assembly task at the end is the largest task we have.

Q.        Um-hum.

A.        But the only reason I can think that we wouldn't put somebody who was performing well on a specific job would be job availability and perhaps multiple people doing well on a job and wanting to make sure that we're spreading that opportunity around as much as possible.

Q.    So some folks might be doing very well on jobs and those same folks might be doing very poorly on other jobs, is that correct?

A.       That is possible, yes.

Q.    Is there any consistency in some jobs, just everybody seems to be getting particularly low wages or everybody seems to be getting higher wages?
                                                       
A.        Not that I know of.

Q.        Are you familiar with the productivity and wages that Mr. Magers, Ms. Steward, and Mr. Felton have received?

A.        Yes, to some degree.

Q.        Okay. And they're—would you agree that all three of them at times, for instance, on the auto pad print machine are earning well above minimum wage, is that correct?

A.        Yes.

Q.        Is that unusual or is that consistent with other folks that also operate that machine?

A.        I don't know the answer to that question. While I do know the productivity of the three Petitioners, part of that has been in prep for what we've been doing right now. I'm sure we have many people who do well on that machine, and I'm sure we have others who probably do not.

Q.        Do you have anybody who's been sort of reviewing the productivity of—I mean, it sounds like you've got a lot of managers. Let me back up. Is there anybody who is trying to select appropriate people for appropriate tasks?

A.        I think the staff do that on a day-to-day basis. You know, if Laurie [Fretz] knows somebody's good at a particular task and that's a task we need to get a lot of done that day, that person will go on that task.153

I do not see any corroboration in the Petitioner’s pay records that they are frequently assigned jobs where they “knock it out of the park” in terms of making minimum wage or more. Although an employer may possess a Section 14(c) Certificate, I nonetheless conclude that, to the extent such work is available, the employer is required to allocate work in such a manner that as many employees may earn minimum wage as frequently as possible. It does not appear to me that such an allocation of higher-paying work has been made to the Petitioners here, and I find the failure of Respondent to make work assignments so as to maximize wages subjects Respondent to liquidated damages.

Respondent argues in its Post-Hearing Brief that its administration of “timely wage surveys and hourly job samplings” evinces an effort to comply with the mandates of the Act.154 However, as noted above, the artificiality of those evaluations undermines their probative value as evidence of attempted compliance. Similarly, I reject Respondent’s argument that its provision of “a discretionary increase on top of the commensurate wage . . . provide[s] extra compensation to workers with disabilities . . . to which they are not otherwise entitled” as evidence of good faith dealing with Petitioners. The record supports that the Petitioners were not impaired for the work performed, a fact which would have been discovered by the Respondent had it engaged in an honest and meaningful evaluation of their production. Therefore, its provision of a “discretionary increase,” which still amounts to less than the minimum wage, does not establish an honest attempt to ascertain and follow the dictates of the Act. Notably, although not categorized as such by the Petitioners, the Respondent’s discretionary payments could be equivocally interpreted as an attempt to disincentivize administrative review of the special minimum wage.155

Respondent was required by the regulations to review the special minimum wages being paid to Petitioners “at a minimum of once every six months.”156 Where, as here, there is such extraordinary variance in the production rates of the standard setters, I conclude Respondent should not have continued to rely on the same standard setter production data year after year. I believe Respondent violated 29 C.F.R. §525.9(b)(1) in that Respondent did not conduct an appropriate review of all of the data that goes into the formula by which Petitioners’ wages are established. On the facts of this case—where the standard setter production data is so inconsistent—Respondent’s failure to review that data at least at 6-month intervals subjects Respondent to liquidated damages.

I have set forth earlier in this decision the various ways in which Petitioners wages were not appropriately calculated. I have set forth numerous examples of the documentation of how Petitioners’ wages were calculated is inaccurate or missing. These acts and omissions violate the heightened duty of care I have found applicable, and the repeated nature of these acts and omissions subjects Respondent to liquidated damages.

Petitioners’ wage data reveals other unexplained variances in the wages paid by the Respondent. For example, Petitioner Felton was employed as a “Production Helper” for a total of six hours during the pay period ending March 7, 2014.157 It was agreed by Respondent and Petitioners that Production Helpers earn minimum wage as a matter of course. However, Mr. Felton earned minimum wage for only four of the six hours he worked as a Production Helper during the period. Without explanation, the Respondent paid Mr. Felton $0.03 per hour for a fifth hour of the same work and $0.25 per hour for a sixth hour of the same work.158 Similarly, Mr. Magers was paid $15.48 per hour for 1.75 hours of work on the Creform line during the September 6, 2013, pay period, and $2.52 per hour for 23.75 hours of work on the Creform line during the September 20, 2013, pay period.159 These unexplained events lead me to conclude that good faith has not been demonstrated by Respondent.

I also conclude Respondent has attempted to interfere with the fair adjudication of this matter by making large, unexplained, payments to each of the Petitioners on the very eve of this matter going to hearing. The “MISC ADJ” payments made by Respondent to Petitioners in late December 2015 of between $435 and $685 represent a substantial portion of the income made by Petitioners during the 2015 calendar year. Questions about these payments were raised in the very first hours of a 5-day hearing, yet Respondent never offered any explanation for these payments. If one does not carefully study the line-items on Petitioners’ wage documents, these “MISC ADJ” payments paint a much more benign picture of how Petitioners have been compensated. In the absence of any explanation, I conclude these payments were made immediately before the hearing to paint a misleadingly rosy picture of Petitioners’ 2015 wages.

Respondent has failed to establish that it had reasonable grounds for believing that its conduct complied with the Act. I find that Respondent is liable for liquidated damages in an amount equal to the amount of unpaid wages due to the Petitioners. Accordingly, Respondent owes each petitioner an additional amount equal to the total back pay outlined above.

D.        An Award of Interest is Not Appropriate

Federal Circuit Courts of Appeal are in disagreement about whether prevailing plaintiffs in actions under the Act are entitled to pre-judgment and post-judgment interest. The Second, Third, Ninth, and Eleventh Circuit Courts of Appeal have held that while not mandatory, if pre- judgment interest is not awarded, a court must explain why the usual equities in favor of such interest are not applicable.160

The majority of Federal Circuits, however, have held that if a petitioner is awarded liquidated damages under §216(b), then pre-judgment interest is unavailable. In Herman v. Harmelech,161 the court held that because liquidated damages were awarded, it was unnecessary to address the Secretary's request for pre-judgment interest. Citing to Uphoff v. Elegant Bath, Ltd.162 the court held that recovery of liquidated damages and pre-judgment interest would amount to double recovery.163

The weight of authority supportive of this proposition relies on U.S. Supreme Court precedent from 1945. In Brooklyn Sav. Bank v. O’Neil,164 the Court established:

Interest is not recoverable in judgments obtained under §16(b). As we indicated in our decision in Overnight Motor Co. v. Missel, [316 U.S. 572 (1942)], §16(b) authorizes the recovery of liquidated damages as compensation for delay in payment of sums due under the Act. Since Congress has seen fit to fix the sums recoverable for delay, it is inconsistent with Congressional intent to grant recovery of interest on such sums in view of the fact that interest is customarily allowed as compensation for delay in payment. To allow an employee to recover the basic statutory wage and liquidated damages, with interest, would have the effect of giving an employee double compensation for damages arising from delay in the payment of basic minimum wages. Allowance of interest on minimum wages and liquidated damages recoverable under §16(b) tends to produce the undesirable result of allowing interest on interest. Congress by enumerating the sums recoverable in an action under §16(b) meant to preclude recovery of interest on minimum wages and liquidated damages.165

I find that an award of pre-judgment interest on the back pay owed the Petitioners would constitute double recovery since liquidated damages have been awarded.

However, case law suggests that the Petitioners may also be entitled to post-judgment interest.166 Under 28 U.S.C. §1961, post-judgment interest may be compounded on civil monetary damages received in district court, and in other express circumstances. However, §1961(c)(4) specifically disclaims that “[t]his section shall not be construed to affect the interest on any judgment of any court not specified in this section.” Still, that statute has been interpreted, albeit infrequently, to allow post-judgment interest on monetary damages awarded in an administrative adjudication. See PGB International LLC Co. v. Bayche Companies, Inc.167

I find that the imposition of post-judgment interest is not warranted in this matter. As outlined below, in making its curative back pay and liquidated damages payments to Petitioners, the Respondent will be required to consider the extent to which lump sum payment might affect Petitioners’ eligibility to receive certain benefits and services crucial to the quality of their lives. To the extent possible, Respondent is being directed to work cooperatively with Petitioners to spread the payment of damages over a sufficient number of months to ensure Petitioners retain eligibility to necessary support programs. Because Respondent is being ordered to potentially delay payment of the total sum due to Petitioners, subjecting that sum to post-judgment interest would disincentivize meaningful compliance with that directive. Accordingly, I find that the unique equities of this case do not support an award of post-judgment interest.

1. An Award of Attorneys’ Fees and Costs May be Appropriate

The Act authorizes the reviewing court to award the petitioner “a reasonable attorney’s fee” and “costs of the action.”168 On January 21, 2016, the parties submitted a Stipulated Withdrawal of the Petitioners’ Motion for Sanctions, which states that each party has agreed to pay its own costs and attorney’s fees. If that Stipulation was intended only as a waiver of attorney fees related to the Motion for Sanctions itself, then counsel for Petitioners may submit an application for attorney fees and costs within 14 days of the issuance of this Decision and Order. Respondent shall have 10 days to oppose any request for the award of attorney fees.

XII.     ORDER

  1. Effective immediately, Petitioners Ralph (“Joe”) Magers, Pamela Steward, and Mark Felton shall each be paid minimum wage for each hour worked at Respondent’s Fostoria manufacturing facility;
  2. Respondent shall pay Petitioner Ralph (“Joe”) Magers the sum of $17,578.30 ($8,789.15 in unpaid wages and $8,789.15 in liquidated damages);
  3. Respondent shall pay Petitioner Pamela Steward the sum of $18,174.48 ($9,087.24 in unpaid wages and $9,087.24 in liquidated damages);
  4. Respondent shall pay Petitioner Mark Felton the sum of $18,322.62 ($9,161.31 in unpaid wages and $9,161.31 in liquidated damages); and
  5. Upon receipt of this Decision and Order, and before making any payments of back wages and liquidated damages to the Petitioners, Respondent shall contact counsel for Petitioners. Counsel shall discuss whether the payment of the back wages and liquidated damages over a period of time will allow the Petitioners to retain eligibility for benefits Petitioners currently receive. Respondent shall pay the back wages and liquidated damages over time if counsel for Petitioners so requests. Otherwise those sums shall be payable within 30 days after the issuance of this Decision and Order;
  6. As outlined above, Petitioners may seek the award of attorney fees and costs.

SO ORDERED.

Steven D. Bell Administrative Law Judge

Recipes

Last month we took a trip to the past to revisit some of the delicious recipes that have been hiding in the Monitor archives. In fact, we found so many delicious recipes that we’re going to keep the retro recipes rocking.

BROCCOLI SALAD
by Donna Biro

This recipe first appeared in the April 1994 Monitor. Here’s how Donna was introduced at the time: Donna Biro and her daughter Laura first found the Federation at the 1992 NFB of Michigan convention. Since that time all of the Biro family have been active members of the affiliate. Laura was a 1993 winner of both national and state NFB scholarships.

Ingredients:
1 bunch broccoli, chopped
1 medium purple onion, chopped
5 slices bacon, fried crisp and crumbled
1/2 cup sunflower seeds
1/2 cup raisins
1/2 cup shredded cheddar cheese

Dressing:
3/4 cup mayonnaise
1/4 cup sugar
2 tablespoons dark vinegar

Method: Toss all non-dressing ingredients. Mix dressing ingredients well and combine with broccoli mixture.

CHICKEN CHOW MEIN
by Deb Nefler

This recipe first appeared in the April 2004 Monitor. Deb Nefler was secretary of the Falls Chapter of the NFB of South Dakota at the time.

Ingredients:
Vegetable cooking spray
1 1/2 cups chopped onion
1 cup sliced celery
1/2 cup chopped green pepper
2 cups cooked chicken, chopped
2-to-3 cups frozen Chinese vegetables
1 14-ounce can sliced mushrooms, drained
1/4 teaspoon ground cumin
1 tablespoon chicken-flavored bouillon granules
1 tablespoon cornstarch
3 cups water

Method: Coat a large skillet with cooking spray and place over medium heat till hot. Add onion, celery, and green pepper and cook, stirring constantly, three minutes or till vegetables are tender-crisp. Stir in chicken, Chinese vegetables, mushrooms, and cumin and cook over medium heat for one minute. Dissolve bouillon granules and cornstarch in cold water. Add to mixture in pan and continue to cook over medium heat, stirring constantly till thickened and bubbly. Note: Chicken Chow Mein may be served over Chow Mein noodles or hot cooked rice. Serves seven with one-cup servings.

MACARONI PIE
by David J. DeNotaris

This recipe first appeared in the Monitor in February 1995 with this introduction: David DeNotaris is currently Job Opportunities for the Blind coordinator for New Jersey. He is also a world champion power lifter.

Ingredients:
1 1/2 pounds ricotta cheese
Black pepper to taste
Garlic to taste
7 eggs
Salt to taste
1 pound mozzarella
Italian cheese, grated to taste
1/2 pound thin spaghetti (broken in half)

Method: Cook spaghetti according to package directions and drain in colander. In a large bowl beat eggs and then add ricotta and Italian cheese. Add salt, pepper, and garlic to taste. Cut mozzarella into small pieces and add to mixture. Stir in spaghetti and pour into greased baking pans. Bake at 350 degrees from fifty minutes to one hour, or until top is lightly browned and firm to the touch.

PALATSCHINKE
by Fred Wurtzel

This recipe first appeared in the May 2002 Monitor with this introduction: Fred Wurtzel is president of the NFB of Michigan. He reports that this is a simple family recipe.

Ingredients:
1 cup flour
2 eggs
1 cup milk
1 teaspoon vanilla

Method: You can vary this to accommodate the number to be served. Mix ingredients together and then fry. These are like thin crepes. For a treat we cook them in butter. Some like to roll them with cinnamon and sugar inside. Others like cottage cheese and jam—whatever suits your fancy.

O'HENRY BARS
by Linda Mentink

This recipe originally appeared in the October 1997 Monitor. At the time Linda lived in Wisconsin and served as the president of the NFB Music Division. She is a singer with several albums to her credit.

Ingredients:
1 cup melted butter or margarine
1 cup granulated sugar
1 cup brown sugar
4 cups oatmeal

Method: Mix all ingredients well and press into a lightly-greased cookie sheet with sides. (Mine measures about 10 by 14 inches.) Bake at 350 degrees for ten to twelve minutes. Cool to room temperature. Pour over this a topping made of one cup crunchy peanut butter and one cup chocolate chips melted and stirred together well. Spread topping and chill bars. Cut before serving.

IOWA APPLESAUCE CAKE
by Terry E. Branstad

This recipe first appeared in the June 1993 Monitor. Terry Branstad was the governor of Iowa at the time.

Ingredients:
1/2 cup butter, margarine, or shortening
3/4 cup sugar
3/4 cup packed brown sugar
1 egg
2 cups all-purpose flour
2 teaspoons baking powder
1 teaspoon baking soda
1 teaspoon ground cloves
1-1/2 cups applesauce
1 cup raisins
1/2 cup chopped pecans or walnuts

Method: In a large mixing bowl beat the butter for thirty seconds. Add the sugars and egg, and beat until combined. Stir together the flour, baking powder, baking soda, and spices. Add flour mixture alternately with applesauce to butter mixture. Stir in raisins and nuts. Pour batter into a greased 13-by-9-by-2-inch baking pan; spread evenly. Bake in a 350-degree oven for thirty to thirty-five minutes or until a toothpick inserted in center comes out clean. Cool in pan on wire rack; serves twelve.

Cream Cheese Frosting:

Ingredients:
2 3-ounce packages cream cheese, softened
1/2 cup butter, softened
2 cups powdered sugar, sifted

Method: Beat together cream cheese and butter. Then beat in 2-1/2 to 2-3/4 cups sifted powdered sugar to make a spreadable frosting. A butter frosting could be substituted for the cream cheese one.

For a decorative finish, set a doily lightly on the frosted cake and sprinkle lightly with a mixture of cinnamon and nutmeg. Then carefully remove the doily.

 

Monitor Miniatures

News from the Federation Family

Louisiana Center for the Blind Buddy and STEP Programs 2016:
Since 1989 the Louisiana Center for the Blind has offered an innovative summer program for blind children in grades four through eight. This summer, the Buddy Program promises to be full of learning opportunities, new friendships, and fun-filled activities.

Many blind children have misconceptions about their blindness due to the lack of positive blind role models and to the negative stereotypes about blindness in society. Unlike other summer programs for blind children, the Buddy Program is directed and staffed by competent blind adults. Classes in cane travel are taught to instill independence and self-confidence. The knowledge of Braille enables the blind child to compete on terms of equality with sighted peers in the classroom and provides a solid background in spelling and other grammatical skills. Computer literacy classes expose a blind child to available adaptive equipment. Classes in daily living skills promote equal participation in household duties such as cooking, shopping, and cleaning. In addition to learning valuable alternative techniques of blindness, children will enjoy participating in a wide variety of exciting activities such as swimming, camping, bowling, roller skating, and field trips.

The combination of hard work and fun activities will provide a rewarding experience that children will cherish. Involvement in the Buddy Program helps blind children realize that it is not blindness that holds them back. Rather, it is the negative attitudes and misconceptions about blindness that may prevent blind children from reaching their potential. At the close of the program, parents are required to attend a Parents’ Weekend. This weekend will allow them to interact with other parents of blind children and to learn what their children have discovered about their blindness and themselves. Friendship, training, fun, growth, and interaction between blind children and positive blind role models is how the Louisiana Center for the Blind is “changing what it means to be blind.”

The Louisiana Center for the Blind will sponsor one session of the Buddy Program in 2016. Program dates are July 17-August 6.

Perhaps we will have the opportunity to work with your child this summer. We know it will be a memorable experience for both you and them. All interested families should visit <www.louisianacenter.org> for more details and to apply. Please also feel free to contact our director of youth services, Eric Guillory before April 8. Please email Eric at <eguillory@louisianacenter.org> or call (800) 234-4166.

Due to limited space, we cannot guarantee that every applicant will be granted enrollment. Please note that the fee for students not from Louisiana is $1,000, which is all-inclusive save for transportation to and from the program. The fee for Louisiana students is $500.

2016 Summer Training and Employment Project (STEP) Program:
Since 1985 the Louisiana Center for the Blind has been changing what it means to be blind for adults from across America. In 1990 a program was created to address the needs of blind high school students. The Summer Training and Employment Project (STEP) Program is designed to introduce blind teenagers to positive blind role models and to provide participants with summer work experience.

The eight-week summer program will consist of two components. During the first part of the program, competent blind counselors will instruct the students in the alternative techniques of blindness. Classes in Braille, cane travel, computer literacy, and daily living skills will be taught by qualified blind instructors. In addition, seminars will be conducted in the areas of job readiness, job interviewing skills, résumé writing, and job responsibilities. The second part of the program will continue all aspects of training and expand to include an employment dimension. Students will have the opportunity to work fifteen to twenty hours a week at a local business for which they will receive the federal minimum wage. The staff will attempt to meet the job interests of the students. Instructors from the Louisiana Center for the Blind will be available to provide on-the-job assistance as needed.

The combination of work experience and blindness-related skills—along with fun-filled activities such as cookouts, swimming, and various other outings—will foster self-confidence and independence in young blind teenagers. During the week of June 30 through July 5, students will attend the national convention of the National Federation of the Blind in Orlando, Florida. This exciting conference will allow them to meet thousands of competent blind people from across the country. The students will also have the chance to participate in a wide variety of informative seminars. At the close of the program, parents will be required to attend a Parents’ Weekend, which will enable them to discover how much their children have learned throughout the summer. The STEP program is designed to provide invaluable work experience, friendships, opportunities for personal growth, and cherished memories.

Training will begin June 12 and conclude August 6. Please visit <www.louisianacenter.org> to learn about more program specifics and to complete an application.

Due to limited space, we cannot guarantee that every applicant will be granted enrollment, and applicants must have an open case with their state’s vocational rehabilitation agency or other funding entity to cover program costs.

Questions? Please call our director of youth services, Eric Guillory at (800) 234-4166 or email him at <eguillory@louisianacenter.org>. "Together, we are changing what it means to be blind." Check out STEP and find out how.

Braille Book Fair 2016:
Calling all Braille readers, teachers, and parents! It’s that time again to sort through all those boxes of Braille books and donate those gently used but no longer needed Braille books to the 2016 Braille Book Fair sponsored by the National Organization of Parents of Blind Children.

Our primary goal is to get more Braille books into the hands of children, youth, and beginning adult readers—so here’s what we need most:

Children are so hungry for their own Braille books that every year, despite generous donations of books, most of our books for young children are gone in less than an hour. So begin your search through the boxes in your basement and spare room, and get those books shipped to: 2016 Braille Book Fair, National Federation of the Blind, 200 East Wells Street at Jernigan Place, Baltimore, MD 21230.

Please note that you are shipping the books Free Matter for the Blind; you do not need to pay to ship Braille items. Handwrite, stamp, or affix a label to the upper right-hand corner of the box stating: FREE MATTER FOR THE BLIND. Take your package(s) to your local post office.

Elected:
The NFB Greater Seattle chapter held elections on Saturday, January 16, 2016. The following officers were elected: president, Arielle Silverman; first vice president, Mike Mello; second vice president, Jacob Struiksma; secretary, Tanna Dieken; treasurer, Daniel Heathman; and board members, Ellen Farber and Mary Helen Scheiber.

Elected:
At the  January meeting of the Capital Chapter of the NFB of New Jersey, the following were elected: president, Mary Jo Partyka; vice president, Ben Constantini; secretary, David Mostello; treasurer, John Lipton; and board members, Sue Constantini and Cindy Lipton.

Florida Affiliate Holding Raffle:
The Florida affiliate has started the 2016 fundraising campaign, and this is something that you do not want to miss out on.

The raffle for the Shingle Creek is well on its way, and the Florida affiliate welcomes your participation. The raffle is a two-night stay at Shingle Creek, plus $50 per diem, or $300 cash (which is the value of the package.) The tickets are one for $5.00 or three for $10.00. This raffle will run through March 31.  The winner will be contacted by telephone the day of the drawing (March 31 at 7:30 p.m.). Also, the video recording will be posted on YouTube. Once again the Florida affiliate thanks you for supporting the work of the Federation.

You can pay by sending a check or money order to the NFB of Florida c/o Jorge Hernandez, 201 NW 56th Ct., Miami, FL 33126. You may also pay by PayPal by clicking on the link <PayPal.Me/
nfbfl
>.

If you have any questions, please feel free to contact Jorge Hernandez, fundraising chair, at <jeh1065@comcast.net> or by phone at (305) 877-2311.

Looking for Alumni of Residential Schools for the Blind:
My name is Ken Lawrence, and a couple of years ago I got inspired by an attempt to start a division of the NFB. My enthusiasm was renewed by the Seventy-Five Days of Action, but as I tried to find old friends who attended various schools for the blind and other residential schools, I kept hitting the same issue: the loss of the accomplishments achieved in the schools for the blind by students my age. These accomplishments range from athletics to performances in plays and recitals to participation in programs like vending stands. When the residential schools for the blind became institutions for multiple handicaps, some of the facilities were repurposed. For example, I attended the Oakhill School for the Blind in Hartford from 1974 to 1979. Six months after I left Oakhill, the auditorium where I played Mayor Shinn in The Music Man was turned into a playroom for younger kids. The swimming pool where we won Eastern Athletic Association of the Blind Championships is also gone. The acorn shop which I helped launch is gone also. Even finding alumni of my era is very difficult.

I’m asking readers of the Braille Monitor for help. I’d like alumni of residential schools for the blind to write down their memories of their days at school, of the awards they won, the competitions, the activities they participated in, and the wonderful memories they made there. I would like to see these memories preserved as the schools themselves change and evolve into much different institutions than the ones we attended and remember. Send your written memories to the Monitor at <gwunder@nfb.org>.

In Brief

Notices and information in this section may be of interest to Monitor readers. We are not responsible for the accuracy of the information; we have edited only for space and clarity.

Download Accessible Tax Information:
            Get ready for the tax season! Hundreds of the latest accessible federal tax forms and publications are available for download from the IRS Accessibility Web page at <https://www.irs.gov/Forms-&-Pubs/Accessible-Products>. You can choose from large-print, text, accessible PDFs, e-Braille, or HTML formats that are compatible with screen readers and refreshable Braille displays. The IRS also provides American Sign Language videos with the latest tax information at <https://www.irs.gov/uac/Videos-American-Sign-Language-(ASL)>.

IRS Tax Return Preparation Help is Available:
Tax assistance is available to people with a physical disability or are age sixty or older through the IRS Volunteer Income Tax Assistance (VITA) or Tax Counseling for the Elderly (TCE) programs. You can find a nearby VITA or TCE location by using the available locator tools at <https://www.irs.gov/Individuals/Free-Tax-Return-Preparation-for-You-by-Volunteers> or by calling (800) 906-9887. Publication 907, Tax Highlights for Persons with Disabilities, explains the tax implications of certain disability benefits and other issues and is available at <www.IRS.gov>.

Information about NASA Internships Available:
Science, Technology, Engineering, and Mathematics (STEM) initiatives have been a focus of the Federation in the last few years, and we have enjoyed a long and fruitful relationship with NASA. Their interest in seeking and growing qualified blind employees is unquestionable. If you would like to subscribe to an announcement-only list about NASA internships for persons with disabilities, please send an email to <nasainterns-request@freelists.org> with 'subscribe' in the Subject field, or by visiting the list page at <http://www.freelists.org/list/nasainterns>. This is an internship program, not an employment program. For NASA jobs, please go to <http://www.usajobs.gov>.

Registration for 2016 No Barriers Summit Now Open:
From June 23-26 No Barriers will host its annual signature event, the Summit, this year at Copper Mountain in Colorado. Thousands of people of all abilities from across the USA and around the world will embark on exhilarating adventures in over fifty adaptive activities in sports, adventure, arts, and education; be motivated by phenomenal speakers and celebrities; and be inspired by some of the most creative and innovative technologies, products, and services helping to transform lives.

Your four-day Summit Pass includes:

For more information check out our webpage at: <http://www.nobarriersusa.org/summit/>.

Spoken Word Ministries Debuts New Christian Resource Library:
Spoken Word Ministries Inc., serving blind people since 1988, announces the national launch of BrailleAudio, an internet-based Christian resource library. BrailleAudio currently contains books in a DAISY format similar to the format used by the National Library Service for the Blind and Physically Handicapped (NLS). BrailleAudio makes books available for download by its members, or the member can choose to participate in its read-by-mail program if downloading is not an option. Any visually impaired or blind person living in the United States or a patron of NLS is invited to apply to join BrailleAudio. To apply for a free membership to BrailleAudio, visit <www.brailleaudio.org> and click on the join link. You may also apply by telephone by calling (919) 635-1000. We encourage family members, friends, and professionals to assist those who request assistance to help them apply for BrailleAudio membership. Please help only at the request of the prospective member.

We thank the Lord for enabling us to launch BrailleAudio and invite you to visit <www.brailleaudio.org>, where blind people read.

Monitor Mart

The notices in this section have been edited for clarity, but we can pass along only the information we were given. We are not responsible for the accuracy of the statements made or the quality of the products for sale.

Wanted:
I want to purchase a Parrot Voice Mate. I am willing to pay premium price. Please contact Ray Hicks at (269) 429-8676.

HumanWare Apex for Sale:
I have a BrailleNote Apex for sale. The unit includes a Braille keyboard, a thirty-two cell Braille display, up-to-date software, an Executive Products case, the Oxford Dictionary and Thesauras, the Sendero GPS, and the AC adapter. I am asking $4,000 or best offer. I will accept PayPal or checks for payment, and I will pay for shipping.

Contact Robert Stigile at (818) 381-9568 or by email at <rnstechnology@gmail.com>.

NFB Pledge
I pledge to participate actively in the efforts of the National Federation of the Blind to achieve equality, opportunity, and security for the blind; to support the policies and programs of the Federation; and to abide by its constitution.

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