The Braille Monitor March, 2004
2004 NFB Legislative Agenda and Fact Sheets
by James McCarthy
From the Editor: What follow are the documents that Federationists delivered to every congressional office and discussed with members and their staffs. The agenda briefly lays out the three issues primarily on our minds this year. Three fact sheets follow the agenda, each discussing one of the concepts or bills. Here are all four documents:
Legislative
Agenda of Blind Americans:
Priorities for the 108th Congress, Second Session
Most people know a blind person, and seventy-five thousand Americans become blind or visually impaired every year. The blind population in the United States is estimated to exceed 1.3 million with several million more considered to be visually impaired. In addition, the social and economic consequences of blindness directly touch the lives of each blind person's family members, coworkers, and friends. Public policies and laws affecting blind people have a profound impact throughout our entire society.
Decisions that result from misconceptions or lack of information about blindness are frequently more limiting than the loss of eyesight itself. This is why we have formed the National Federation of the Blind. The Federation's leaders and the vast majority of its members are blind, but anyone is welcome to join in our effort to win understanding and equality in society.
Our priorities for the Second Session of the 108th Congress reflect an urgent need for action in three areas of vital importance to blind Americans. (For an explanation of these issues, please see the attached fact sheets.)
1. Congress should enact legislation amending the Fair Labor Standards Act so blindness cannot be a factor to permit paying less than the minimum wage. This proposal recognizes that blindness does not reduce a person's productive capacity, and it makes the law consistent with actual practice.
2. Congress should amend the Higher Education Act to improve opportunities for blind students by promoting self-reliance, giving them responsibility to control blindness-related services and assuring equal opportunity to participate in programs and courses. This proposal would result in blind students taking charge of blindness-related services as part of their academic experience in order to prepare for success in school and in life.
3. Congress should eliminate the Social Security earnings penalty placed on blind people who work. This proposal includes mandated adjustments in the blind persons' earnings limit to reach $30,000 over the next five years, reducing the disincentive to work.
Blind people are asking for your help to address these priorities in the present session of Congress. By acting in partnership with the National Federation of the Blind, each Member of Congress can help build better lives for the blind, both today and in the years ahead. The legislative actions recommended in our priorities will help blind persons while creating a brighter future for all Americans.
Real
Wages for Real Work:
Blind Employees at Industries for the Blind
Purpose:
The National Federation of the Blind and National Industries for the Blind urge Congress to enact legislation amending the Fair Labor Standards Act so blindness cannot be a factor to permit paying less than the minimum wage.
Background:
Although most blind people are unemployed, those who have jobs are generally paid the going rate for the work they do. This was not the case in the 1930's when the minimum wage in America first became law. It was also at that time, in 1938, when the Wagner-O'Day Act--now the Javits-Wagner-O'Day (JWOD) Act--was passed to encourage the federal government to purchase products from nonprofit workshops employing the blind in broom-making, light manufacturing, and assembly work. This was the first federally backed jobs program for the blind, which, even in 2004, is still supported in part by the principle that the employers eligible to receive government contracts can be exempt under the Fair Labor Standards Act from paying their blind workers the federal minimum wage.
Today National Industries for the Blind (NIB) is the "central nonprofit agency" officially designated to coordinate opportunities for its more than eighty member industries to supply certain approved goods and services to the federal government. Commercial sales are also promoted. Yet for the blind workers, approximately five thousand of them working in production, the federal law still fails to guarantee the minimum wage.
The loophole is in Section 14(c) of the Fair Labor Standards Act, which requires the Secretary of Labor to grant exemptions from the minimum wage in the case of workers whose "earning or productive capacity is impaired by age, physical or mental deficiency, or injury." Subminimum wages are permitted "to the extent necessary to prevent curtailment of opportunities for employment." According to the law pay rates below the minimum wage are supposed to be based on individual productivity as compared to standard productivity of unimpaired people for essentially the same type, quality, and quantity of work performed.
Need for Legislation:
In 1990 the Americans with Disabilities Act (ADA) established the current legal standard that individuals with disabilities are entitled to equal treatment in all areas of life. Although more general than the Fair Labor Standards Act, Title I of the ADA is intended to assure equal employment opportunity for persons with disabilities, including blindness.
This is a more enlightened public policy than the 1938 subminimum wage law still on the books. In the case of blind employees empirical evidence shows that permission for a subminimum wage is no longer justified. In fact, according to NIB, exemptions from the minimum wage currently apply to an estimated 317 of the 5,000 workers at its associated agencies nationwide. Only a few of these agencies actually request exemptions as a matter of policy and best practice.
Therefore Congress should acknowledge the industry practice and preferred public policy by prohibiting use of blindness as a factor for exemption from the minimum wage. This would be a ringing declaration by Congress that lack of eyesight cannot be an excuse for substandard pay. Also the employers' burden of justifying particular subminimum wage payments would be eliminated altogether in the few instances in which the exemption is currently used.
Action Needed:
Congress should amend Section 14(c) of the Fair Labor Standards Act to prohibit use of impaired vision or blindness as a factor for paying less than the minimum wage. This would require employers to apply the same pay standards to all workers regardless of visual acuity. In the work settings where subminimum wages are ordinarily paid, blindness does not reduce productivity. Adopting this proposal would not block use of the minimum wage exemption in the case of impairments that do affect productivity.
Support blind Americans by prohibiting the subminimum wage, and update the law to reflect the acknowledged best practices of the industry.
Taking
Charge:
Promoting Responsibility for Blind Students in Higher Education
Purpose:
To improve opportunities in higher education for blind students by promoting self-reliance, giving them responsibility to control blindness-related services, and assuring equal opportunity to participate in programs and courses.
Background:
The Education Amendments of 1972 established the right of blind students to be admitted to higher education institutions and receive instruction on equal terms with others. This law, combined with the Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990, assures the blind the opportunity to enroll, but participation in academic and extracurricular programs may be conditioned on acceptance of "special services," provided on the institution's prescribed terms rather than the student's expressed needs. Participation in specific programs or courses of instruction may also be limited based on low expectations by academic personnel.
For those who can see, academic instruction presumes the ability to acquire information by reading print. This means that blind students begin with the challenge of obtaining the same information presented to others even though they cannot read the printed texts, handouts, or other documents. Effective planning and marshalling of resources to meet this challenge are essential qualities for blind students' success.
Available resources include a federally funded service called RFB&D which receives an annual appropriation of approximately $11,400,000 to convert printed texts into audio and digital recordings for blind and dyslexic students in postsecondary programs. Established more recently, an online service, Bookshare.org, provides students with computer access to a steadily growing electronic library, currently consisting of more than fifteen thousand books. Specially designed software used on a student's personal computer can also convert printed text into synthetic speech or Braille. Finally, other students or persons in the community can be recruited for part-time work as readers, providing vital assistance to blind students in using the library, taking tests, and meeting other academic needs. Learning to secure and manage these resources efficiently is important for blind students in order to achieve success in school and in life.
Existing Law:
Section 504 of the Rehabilitation Act of 1973 (as amended) prohibits discrimination against persons with disabilities, including blindness. With enactment of the Americans with Disabilities Act of 1990 (ADA), this law was extended to all higher education institutions. These laws require reasonable accommodation to permit participation by persons with disabilities.
As a result higher education institutions have established campuswide Disabled Student Services (DSS) Offices to plan, organize, and control accessibility accommodations. Rather than fostering student responsibility, these offices have become internal bureaucracies assuming growing control over when and how the institution will accommodate blind and disabled students. As currently written, Section 504 and the ADA do not prohibit this practice.
Need for Legislation:
Institutions of higher education should foster responsibility, creativity, and initiative in all students to prepare them for future success. By imposing preconceived one-size-fits-all service plans on blind students, the DSS offices fail to promote these essential qualities. DSS offices should meet the needs of blind students, and who knows their needs better than blind students themselves? Serving as resource centers, these offices should facilitate, but not control, management of blindness-related services.
Existing laws clearly prohibit denying admission based on blindness, but once admitted, blind students may often be subject to restrictions placed on their participation in programs or specific courses. This occurs most often when academic personnel fail to consult blind students and conclude that lack of sight equates to lack of ability. Rather than planning with students to determine if modifications are needed, they resort to calling in the DSS offices to represent the students. This leaves students out of the process and vulnerable to decisions made in the name of helping them. Successful program participation is best achieved when blind students and personnel collaborate to address concerns about participation, but the laws against discrimination do not clearly require this.
Action Needed:
Congress should amend the Higher Education Act to improve opportunities for blind students by promoting self-reliance, giving them responsibility to control blindness-related services, and assuring equal opportunity to participate in programs and courses. The amendment should ensure that:
• Higher education institutions have procedures to encourage responsibility and self-reliance among blind students in arranging the accessibility accommodations they need;
• Students, not institutions, must have ultimate control over arrangements for accessibility accommodations; and
• Decisions concerning modifications to programs or courses of instruction shall not be made unless requested by students and shall be planned jointly by blind students and academic personnel in order to assure equal opportunities to participate.
Removing
the Penalty for Working:
Commonsense Work Incentives for Blind
Social Security Beneficiaries
Legislation:
H.R. 173, "Blind Empowerment Act of 2003," by Congressman Thomas Reynolds. S. 750, "Blind Empowerment Act of 2003," by Senator John McCain.
Purpose:
To amend Title II of the Social Security Act to increase the level of earnings allowed for blind individuals without a penalty for working.
Background:
By increasing the Social Security earnings limit in 1996, Congress provided a powerful incentive for seniors age sixty-five and older to work. Advocates made the case that seniors would continue to work, earn, and pay taxes since they could do so without fearing loss of income from Social Security. Now the need for a higher earnings limit for the blind is even more compelling because of an all-or-nothing penalty for working above it. However, Congress has disregarded this in the case of the blind while encouraging seniors to work by removing the earnings limit altogether.
For blind persons gross earnings exceeding $1,350 monthly ($16,200 annually) cause a total loss of benefits until age sixty-five. At that point there is no limit on the amount that same individual can earn. This is the inequity that now exists.
Existing Law:
Like "retirement age," "blindness" is specifically defined in the Social Security Act and can be readily determined. By contrast, evaluating "disability" is more subjective, requiring a finding of "inability to engage in substantial gainful activity." Reaching this finding is complex and not clear cut.
Although blindness is precisely defined, monthly benefits are not paid to all blind people but only to those whose earnings (from work) are below an annually adjusted statutory earnings limit. No penalty for personal wealth is derived from any source other than work. In the case of the blind, work alone is penalized. Recognition of the earnings limit's impact on seniors prompted Congress to change the law. The present situation for the blind is the same as it was for seniors prior to 1996.
Need for Legislation:
For blind people who find work, earnings will usually not replace lost benefits after taxes and work expenses are paid. Therefore few beneficiaries can actually afford to attempt significant work. Those who do often sacrifice income and the security of a monthly check. The following examples illustrate the penalty for working.
A single person with no dependents, having annual cash benefits of $10,300 or roughly $859 per month (an average benefit) with no other income, receives this amount tax-free. Gross pay to replace benefits would have to be approximately $17,850, taking into account taxes and work expenses (such as commuting and buying appropriate clothing for work). This is $1,650 above the amount allowed. Earnings below $17,850 would mean a loss. While some individuals will still choose to work, for most the rational choice is not to work because they can't afford to lose income.
If the beneficiary has dependents, the situation is more troublesome. With two dependents, the family's total benefit is likely to average approximately $16,200 annually. Therefore earnings of $16,500 (just above the limit) will not replace benefits. Using conservative assumptions, such as taxes figured at 25 percent of gross pay and childcare for two children at $500 per month, replacing $16,200 in benefits would require about $28,300 in gross pay. When dependents are involved, the choice to work or not to work is more constrained, and the amount needed to replace everyone's benefit far exceeds the blind person's earnings limit.
Action Needed:
Increasing the earnings limit to $30,000 over five years will allow blind people to work without being penalized financially for doing so, providing more than 100,000 blind beneficiaries with a powerful work incentive. At present a blind individual's earnings must not exceed a strict monthly limit of $1,350. When earnings exceed this threshold, the entire sum paid to a primary beneficiary and dependents is abruptly withdrawn after a trial work period. The economic risk resulting for a blind head of household is far greater than any economic benefit derived.
An increase in the earnings limit would be cost-beneficial. With a 74 percent unemployment rate, the significant majority of working-age blind people are already beneficiaries. Providing them with a meaningful work incentive would allow them to become taxpayers as well. Congress raised the earnings exemption for seniors, and only Congress can do the same for the blind. The chance to work, earn, and pay taxes is a constructive and valid goal for senior citizens and blind Americans alike.
Congress should remove the penalty for blind SSDI beneficiaries who work. Please support blind Americans by cosponsoring legislation requiring mandated increases in the earnings limit for the blind and request action on this legislation during the Second Session of the 108th Congress.