Braille Monitor                                              August/September 2014

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Working to Advance Equal Rights and Protections for Blind People with Disabilities in the Workforce of Today, Tomorrow, and the Future

by Laura Fortman

From the Editor: Laura Fortman is the deputy administrator of the Wage and Hour Division at the United States Department of Labor. She is responsible for enforcing Section 14(c) of the Fair Labor Standards Act, but what she has to say about its enforcement was a pleasant surprise to members of the audience and brought several enthusiastic rounds of applause. Here are her remarks:

Thank you for the very kind introduction, especially following such distinguished presentations. I felt like when Dr. Maurer announced that I was responsible for enforcing 14(c), there was kind of a boo-hiss going around the crowd here, which is understandable. I did want to say thank you for inviting me to this event. I really am honored to be here with so many of you who have been champions for the rights of blind people for decades. I am particularly proud and pleased to be here with Dr. Maurer and his leadership team. This team has worked steadfastly with determination and complete conviction to put forward the belief, the position, that the organized blind are the best people equipped to solve the problems facing the blind. I want to personally thank you for all of the ways that you are working to make us a better society, because the work that you are doing is based on the belief that equal rights are important for all of us. Finally, I would be remiss if I didn't acknowledge your colleagues in Washington who have enlightened me and other members of my team at the Wage and Hour Division. I know the passion and the steadfast determination I experienced when I met with John Paré and Anil Lewis for the first time isn't unique to them and guides all of you, and, in fact, I reflected on that first meeting that I had, and it reminded me of a quote by William Faulkner. Faulkner said, "Never be afraid to raise your voice for honesty and truth and compassion and against injustice and lying and greed. If people all over the world would do this, it would change the earth." John and Anil have educated me and my colleagues on the unintended consequences of the law that when enacted back in 1938 was a step forward but in today's time can pose challenges for people with disabilities fighting for their equality.

I am happy to be here and to have this opportunity to engage with you about how DOL and the Wage and Hour Division is aligning with your mission of advancing equal rights and economic opportunity for all workers. You've already heard today from Commissioner LaBreck, who talked about the remarkable progress we’ve seen these past few weeks to advance bipartisan reauthorization of the Workforce Investment Act or the Workforce Innovation and Opportunity Act as it is now known. We are excited about the opportunities that WIOA, if passed by Congress, would grant to Secretary Perez. In addition to making critical reforms to the workforce system overall, WIOA also addresses the need to find new, more effective strategies to increase employment for people with disabilities. This includes an examination of the effectiveness of Section 14(c) of the Fair Labor Standards Act. WIOA requires that, no later than sixty days after the date of enactment, the secretary of labor shall establish an advisory committee on increasing competitive integrated employment for individuals with disabilities. In addition to Wage and Hour, the committee will include members across federal agencies, but, more importantly, you in the disability advocacy community will have a seat at the table. The mandate of the committee is to explore, prepare findings, conclusions, and recommendations for the secretary of labor, and this includes ways to increase competitive integrated employment for people with disabilities as well as to review Section 14(c) certificates. Work is already underway on these critical issues, but insight from other federal agencies and from you is welcome and necessary. Finally, the committee is mandated to issue an interim report no later than one year after the date it was established and a final report no later than two years after its establishment. The reports are to be filed with the secretary of labor and the Senate Health Committee. I can assure you that Secretary Perez will take seriously the recommendations made in that report to increase competitive integrated employment for people with disabilities generally and on Section 14(c) in particular.

As you may have heard, Secretary Perez has some concerns about 14(c) certificate programs under the Fair Labor Standards Act. He is committed to using all of the tools available to the department to ensure that, under the program as it now exists, we're doing the most we can in enforcement to protect the rights of people with disabilities. The Wage and Hour Division has been pursuing strategies to strengthen compliance with Section 14(c) to maximize the impact of its benefits for workers. These strategies include using all available enforcement tools to remedy and deter violations, providing new compliance assistance materials, and hosting compliance conferences for employers, rehabilitation programs, advocates, workers, and other interested parties. This is a priority for the Wage and Hour Division, and I'd like to share some of our new strategic approaches.

You may have heard about a recent Wage and Hour investigation in Providence, Rhode Island. The city of Providence, the Providence school board, and the Harold A. Birch Vocational Center and School signed a settlement agreement to pay more than $250,000 in back wages to sixty student workers with disabilities following an investigation by the Wage and Hour division. As part of the settlement agreement we have retroactively revoked the certificate that allowed the school to pay workers less than the current federal minimum wage. This resolution came just months after the department announced the revocation of authorization for Training through Placement [TTP], based in North Providence. That investigation revealed that the program at Birch served as a point of origin for many people entering the program at TTP. Wage and Hour investigators notified the Department of Justice about our suspicions that Birch Vocational Center was funneling workers with disabilities into TTP and that there were possible violations under the ADA title II.

This past April the Department of Justice entered into a statewide settlement agreement that will resolve violations of the Americans with Disabilities Act for approximately 3,250 Rhode Islanders with intellectual and developmental disabilities. As a result of that settlement two hundred Rhode Islanders with intellectual or developmental disabilities who were currently being served by segregated programs will have opportunities to work in real jobs at competitive wages.

The agreement between the US Department of Justice and the state of Rhode Island represents an important step forward in the movement away from sheltered workshops and toward integrated employment. It also represents a pathway for government, business, and advocates for people with disabilities to collaborate and to systemically expand employment opportunities for all people. This type of collaboration with our federal partner is the result of a Wage and Hour Division strategic enforcement initiative to protect workers with disabilities from exploitation. We believe workers with and without disabilities deserve an opportunity to do meaningful work and to receive meaningful income. As we've also heard an employer here today say, although employers may legally pay such workers below the current federal minimum wage, they are not required to do so, and the law clearly states that they may only do so when they assure compliance with certain key conditions. It is important that we at Wage and Hour move forward where we can to maximize the impact.

In another example of acting now in lieu of waiting for congressional activity, you heard Commissioner LaBreck and President Maurer talk about President Obama, in his state of the union address, laying out a vision based on a very basic and fundamentally American principle: opportunity for all. How far you get should depend on how hard you work. No matter the circumstances of your birth, the zip code you live in, or the physical challenges you may face, you can have a chance, through hard work and personal responsibility, to live out your best and highest dreams. Later, in the same speech, the president also said, "The best measure of opportunity is access to a good job." That's why the president signed an executive order raising the minimum wage to $10.10 for all workers employed on new federal service concession and construction contracts beginning January 1, 2015. [Applause]

At the signing of the executive order, the president said, "And let's not forget: not only is it good for the economy; it's the right thing to do. There's a simple moral principle at stake. If you take responsibility and you work as hard as these folks work, if you work full-time, you shouldn't be living in poverty—not in America!" He went on to say, "And this executive order will cover Americans with disabilities because this principle doesn't just apply to some of us; it applies to all of us."

The executive order directs the Department of Labor to issue regulations to implement these requirements by October 1, 2014. I'm proud to tell you that the department published proposed regulations a few short weeks ago. Our Notice of Proposed Rulemaking or NPRM establishes standards and procedures for implementing and enforcing minimum wage protections in the executive order. The proposed rule includes an economic analysis showing that nearly 200,000 workers will benefit from the increase, and this includes workers with disabilities. As explained in the proposed rule, the term “worker” includes any individual in a covered contract. This includes workers whose wages are calculated under Section 14(c). For the first time there will be a floor for wages under Section 14(c). This floor is $10.10 for everyone: no exceptions, no exclusions. [Applause]

This order was an enormous step forward toward opportunity for all. Private sector employers are discovering the value in equality as well. Secretary Perez recently visited a Walgreens distribution center in Windsor, Connecticut. At that facility 48 percent of the workforce had a disability, and their lowest paid employees make $14.47 an hour. Their approach is anchored in the philosophy of "same job, same performance," which set the standards for equality, fairness, and opportunity for all workers and not any one particular group. This place was built for success and access, using touchscreens, adjustable workstations, and the use of iconography. Walgreens knows that employing people with disabilities in competitive, quality jobs is the right thing to do and the smart thing to do.

The president also believes the federal government should lead by example as a model employer when it comes to implementing these values. That's why we're so proud of the administration's work to implement the president's executive order to increase the federal employment of individuals with disabilities. At the end of fiscal year 2012, people with disabilities represented almost 12 percent of the federal workforce and 16 percent of new hires. That means we have more people with disabilities working there in actual terms and by percent than at any time in the last thirty-two years.

While preparing for this trip I read the following words on the NFB website: "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 Wage and Hour Division doesn't want anything to hold back the potential of anyone who is blind or has a disability. However, as you heard me say, current law places certain parameters on our ability to eliminate all barriers. Yet, as I read these words, I kept thinking that, as you work to raise the expectations of blind people, we at DOL, and specifically the Wage and Hour division, can and will do our part to raise expectations of your future employers. We also believe that blindness doesn't define your future and that you can live the life you want.

Again, collaboration is critically important to move any agenda forward, and as deputy administrator of Wage and Hour, I assure you that we are going to approach our challenges and opportunities as we always do, head-on, with the unwavering belief that a hard day's work deserves a fair day's pay for everyone. We're going to do it with strong enforcement of the laws as they are written and with thoughtful rulemaking to implement the president's recent executive order. We applaud those in the business community who've already seen the light and are being smart and aggressive about recruiting and retaining employees with disabilities and paying them fairly. We are going to continue strong enforcement to level the playing field for those employers and to create incentives to comply, not incentives to break the law.

Thank you so much for the invitation to join you here at your national convention. It's been truly an honor to speak with you today.

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