December 13, 2019
To: The U.S. Commission on Civil Rights
From: Jill R. Barker, Ann Arbor, Michigan
Re: Do 14(c) wage certificates violate the civil rights of people with disabilities?
Answer: NO, not with the protections properly enforced in current law and the availability of choices to meet individual needs.
I am the parent of two adult sons with profound intellectual and developmental disabilities (IDD). Despite the claims by many disability advocacy groups, that all people with disabilities can work in integrated, competitive work settings, my sons are not capable of work of any kind, although there are many services and protections that are afforded to them that improve and maintain the quality of their lives.
I also belong to local and national disability organizations that acknowledge a broad spectrum of ability and need and avoid proclaiming to know with absolute certainty what all people with disabilities can and can’t do. Only by empowering individual voices of people with disabilities (including legal guardians) and their families to advocate for their own needs and preferences will we ever get to a system of care and services that is in synch with the needs of this diverse population.
Special wages below minimum wage are permitted under Section 14(c) of the Fair Labor Standards Act for people with disabilities. The claim that these are inherently discriminatory is belied by the protections in law that make acceptance of these services voluntary and a choice among alternatives for employment.
According to a Fact Sheet from the U.S. Department of Labor, Wage and Hour Division, on “The Employment of Workers with Disabilities at Subminimum Wages”,
“The fact that a worker may have a disability is not in and of itself sufficient to warrant the payment of a subminimum wage.”
“The fact that a worker may have a disability is not in and of itself sufficient to warrant the payment of a subminimum wage.”
Special wage certificates allow people with more severe cognitive and other disabilities to work at their own pace in skill development centers (sheltered workshops, usually in community settings) and receive pay adjusted to their abilities and how fast they work. Special wages are below the federal minimum wage and are a way to subsidize employers who provide jobs to people who would otherwise not be able to compete for employment.
Wages must be commensurate with the individual’s abilities and productivity: “All subminimum wages must be reviewed and adjusted, if appropriate, at periodic intervals. At a minimum, the productivity of hourly paid workers must be reevaluated every six months and a new prevailing wage survey must be conducted at least every twelve months;” … “any worker with a disability paid at subminimum wages, or his/her parent or guardian, may petition the Administrator of the Wage and Hour Division for a review of their special wage rates by a Department of Labor Administrative Law Judge.”
Wages must be commensurate with the individual’s abilities and productivity: “All subminimum wages must be reviewed and adjusted, if appropriate, at periodic intervals. At a minimum, the productivity of hourly paid workers must be reevaluated every six months and a new prevailing wage survey must be conducted at least every twelve months;” … “any worker with a disability paid at subminimum wages, or his/her parent or guardian, may petition the Administrator of the Wage and Hour Division for a review of their special wage rates by a Department of Labor Administrative Law Judge.”
People with intellectual and developmental disabilities who wish to work in integrated competitive work settings for at least minimum wage should be eligible for ongoing supported employment services, usually funded by Medicaid Waivers.
With Medicaid and social security benefits and a variety of options available to people with IDD, it is hard to imagine that individuals who choose to work in non-competitive work settings are depriving themselves of their civil rights.
Depriving people with severe disabilities of an accommodation that allows them to engage in appropriate work is in itself discriminatory.
In an article from The Hill, “Eliminating subminimum wage waivers will harm hundreds of thousands of people with disabilities”, 8/10/2018, David Ordon writes,
“In 2014, 75 percent of individuals with I/DD receiving day or employment services through a state I/DD system were attending a sheltered or facility-based environment.
With Medicaid and social security benefits and a variety of options available to people with IDD, it is hard to imagine that individuals who choose to work in non-competitive work settings are depriving themselves of their civil rights.
Depriving people with severe disabilities of an accommodation that allows them to engage in appropriate work is in itself discriminatory.
In an article from The Hill, “Eliminating subminimum wage waivers will harm hundreds of thousands of people with disabilities”, 8/10/2018, David Ordon writes,
“In 2014, 75 percent of individuals with I/DD receiving day or employment services through a state I/DD system were attending a sheltered or facility-based environment.
“This means that efforts to remove 14 (c) subminimum wage certificates are essentially targeting one group, and one group alone: people with disabilities who choose to attend sheltered workshops”.
Protecting the choices of people with severe disabilities also protects choice in general for all people with disabilities. Eliminating choices that some advocates don’t approve of may feel good to them in the moment, but using civil rights as a weapon to deprive people of needed services is unfortunately an excuse that is not lost on government agencies and legislators always looking for ways to cut costs for vulnerable populations.
Jill R. Barker
12/13/2018
Jill R. Barker
12/13/2018
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