November 5, 2021
Jeffrey A. Koses
United States AbilityOne Commission
1401 S. Clark Street, Suite 715
Arlington, VA 22202
RE: RIN 3037-AA16 Prohibition on the Payment of Subminimum Wages Under 14(c) Certificates as a Qualification for Participation as a Nonprofit Agency Under the Javits Wagner O'Day Program
Dear Chairperson Koses:
The National Federation of the Blind appreciates the opportunity to comment on the recently published notice of proposed rulemaking (NPRM) titled Prohibition on the Payment of Subminimum Wages Under 14(c) Certificates as a Qualification for Participation as a Nonprofit Agency Under the Javits Wagner O'Day Program.
As the nation’s transformative civil rights organization of blind people, we have been consistent and vocal advocates for the elimination of the Section 14(c) special wage certificate program since our founding more than eighty years ago. As an organization, we passed our first national resolution speaking against the practice of paying subminimum wages to employees with disabilities in 1942, just two years after our founding. In the decades since, we have passed nearly thirty resolutions on the same topic. We are pleased to have been a part of the fight to ensure that people with disabilities receive the training, support, and ultimately the opportunity to obtain competitive integrated employment. We are also pleased to have witnessed society’s changing attitude regarding blindness and disability as a whole, and in turn, the recognition of the Section 14(c) program as a relic of a bygone era in disability and civil rights policy.
It is for these reasons that the National Federation of the Blind strongly supports the NPRM in prohibiting nonprofit agencies from paying subminimum wages on AbilityOne contracts. Moving forward with this rulemaking will send a strong message that the federal government neither supports nor condones the practice of paying less than the minimum wage to employees with disabilities.
Furthermore, we agree with the assertion in the NPRM that the “costs of requiring . . . [nonprofit agencies] wishing to maintain their qualification in the AbilityOne Program to certify that they will not pay subminimum wages under a section 14(c) certificate on contracts are not substantial and are outweighed by the benefits.” This belief is reinforced by data presented later in the NPRM stating that of the hundreds of nonprofit agencies in the AbilityOne program only 38 percent “hold and use section 14(c) certificates to pay subminimum wages.” Analyzing the data further, the NPRM states that the proposed rule will mean increased wages for 674 employees out of approximately 42,000 individuals with disabilities employed at AbilityOne nonprofit agencies. Paying fair wages to less than 700 employees with disabilities scattered all across the country will not be a hardship on any single nonprofit agency, especially when similar organizations working with similar populations are actively employing workers with disabilities without the use of a subminimum wage certificate.
Additionally, we believe that the logical next step for these nonprofit agencies and the individuals with disabilities they employ would be to transition those individuals into competitive integrated employment. Competitive integrated employment is defined in the Workforce Innovation and Opportunity Act (passed in 2014) as a job that meets three specific criteria: (1) it pays people with disabilities at least the minimum wage and not less than what is paid to people without disabilities for similar work (a prevailing wage); (2) it is performed at a location where significant interaction with people without disabilities is possible, and; (3) it provides workers with disabilities the same opportunity for advancement as their coworkers without disabilities.
To address the specific questions posed by the Commission:
Should the requirement that a qualified NPA not use section 14(c) certificates to pay subminimum wages on AbilityOne contracts apply to the renewal or extensions of contracts once they expire or only to new contracts?
We firmly believe that the proposal outlined in the NPRM to require qualified nonprofit agencies to not use section 14(c) certificates to pay subminimum wages on AbilityOne contracts in the instances of contract renewals or extensions is reasonable and necessary. When a nonprofit agency has reached this stage of its contract, the contract must be renegotiated anyway, so there is no reason not to add the above requirement to the new contract if the ultimate goal is to stop the payment of subminimum wages to employees with disabilities and transition them into competitive integrated employment.
Should the requirement that a qualified NPA not use section 14(c) certificates to pay subminimum wages on AbilityOne contracts apply to the exercise of an option on an existing contract?
Applying those same stipulations to the exercise of an option on an existing contract should also be required, but perhaps with the addition of a phase in period to gradually increase the pay of workers receiving subminimum wages to the minimum or prevailing wage required by law in that state or jurisdiction. This is an appropriate compromise given that AbilityOne contracts tend to be long-term agreements that may not be up for renewal or extension for several years.
What impact, if any, would the proposed regulatory change make to the receipt of social security benefits, such as Supplemental Security Income (SSI) or Social Security Disability Insurance (SSDI) and attendant government health insurance, such as Medicare and Medicaid, to employees with disabilities?
As it pertains to the impact of the proposed regulatory change on the receipt of social security benefits and government health care insurance, we believe the net result will be a positive one. Supplemental Security Income (SSI) already has a built-in phase-out that allows recipients to gradually transition from their social security benefit to supporting themselves. Social Security Disability Insurance (SSDI) lacks this same phase-out system, but as stated above, if individuals with disabilities are being paid fair and prevailing wages and are able to eliminate their need for SSDI benefits, then this is certainly a net positive. In the case of government health insurance programs, such as Medicare and Medicaid, just because an employee earns enough to stop receiving SSI and/or SSDI does not mean that they will automatically lose their health insurance. For example, permanently disabled individuals may qualify for an extended period of eligibility wherein they have earned income that meets or exceeds the criteria of substantial gainful activity, which would cause their SSDI benefits to cease, but they could still receive Medicare health insurance for nearly nine years.
How much time, if any, would be necessary for NPAs to meet the new requirements?
Regarding the Commission’s fourth and final question pertaining to the amount of time necessary for nonprofit agencies to meet any new requirements set forth, we believe that an appropriate and reasonable amount of time would be three years. The National Federation of the Blind understands that it will take time to develop and implement a plan to transition employees with disabilities from subminimum wage work into competitive integrated employment. Though we know that this is the necessary and proper course of action, we recognize that it will come with its own set of strategic hurdles to overcome before it can be fully implemented, which is why we are proposing a three-year transition period.
We are pleased that the AbilityOne Commission has taken up such an important topic, and we look forward to the day when Americans with disabilities can proudly work alongside their non-disabled colleagues as equals. If there are any questions, or if the National Federation of the Blind can be of assistance in any way, please do not hesitate to reach out to us.
Mark A. Riccobono, President
National Federation of the Blind