U.S. Department of Labor holds stakeholder listening sessions on special wage certificates that support employment for many with I/DD

The U.S. Department of Labor (DOL) is conducting stakeholder engagement sessions as it reviews the use of 14(c) compensatory wage certificates for people with intellectual and developmental disabilities (I/DD). These are used by employers to make possible work programs that employ people who are unable to participate in regular competitive, integrated employment for reasons related to their disabilities. 

Section 14(c) of the FLSA (Fair Labor Standards Act) authorizes employers, after receiving a certificate from the Wage and Hour Division, to pay subminimum wages - wages less than the Federal minimum wage - to workers who have disabilities for the work being performed.

According to a Department of Labor website, Michigan businesses employ about 800 people under this federal program.

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From the VOR Weekly News Update for October 27, 2023:

The first session was held on Thursday, October 26, 2023.

DOL - Additional Section 14(c) Stakeholder Engagement Sessions Announced

In addition to last night's session [10/26/23], DOL is offering two more opportunities for families to speak on the importance of providing more options for people with I/DD and autism, rather than reducing the number and variety of services available.

NEW:

Stakeholder Engagement Session #2: 
November 01, 2023, from 2:00 to 3:30 PM ET.
Members of the public wishing to participate must register in advance of the meeting by October 30 [Sorry! Registration is closed for this session]

Stakeholder Engagement Session #3: 
November 15, 2023, from 5:30 to 7:00 PM ET.
Members of the public wishing to participate must register in advance of the meeting by November 1. Click here to register

For more information about these sessions, please click here

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Last Night's [10/26/23] Session

Last night's session ran nearly two hours. Participants were given 2 minutes to speak about their experience and their views on 14(c) programs.

The first to speak was a representative from Microsoft, who announced that they oppose 14(c) programs, because they believe everyone with I/DD or autism can work for minimum wage or better. They announced that they had opened up over 500 jobs in competitive integrated employment.

Microsoft's statement was allowed to run nearly 5 minutes, The two minute time limit was imposed after their representative delivered their prepared statement. This was, once again, a grim reminder that powerful organizations hold much larger influence over policy than do individuals or families of people with IDD and autism.

Our friend Kit Brewer, a provider of 14(c) services and VP of the Coalition for the Preservation of Employment Choice, later spoke, thanking Microsoft for opening up 500 competitive jobs, but countered that providers in the State of Missouri have provided employment to over 5,000 people who prefer to work in sheltered workshops under 14(c).

VOR's Dawn Kovakovich spoke of her daughter's growth over her adult life that is a direct result of her engagement in sheltered workshop. She also told the attendees that the best explanation for the need of 14(c) programs can be found in Chapter 4 of Amy Lutz; book, "Chasing the Intact Mind".

Several self-advocates spoke of their feelings that people with I/DD or autism working for less than minimum wage was hurtful or degrading to them personally (that is, to the self-advocate, not the person who is working in the environment of their choosing). A representative from Diability Rights Kansas also spoke against sheltered workshops.

Hugo Dwyer of VOR spoke of the difficult choices that families are forced to make throughout their lives to ensure what is best for their loved ones with I/DD and autism. These choices vary, depending on the individual in question and the options available, and how members of the disability community should work together and support each other's choices, even if those are not the choices they have made. We should support each other, empathize with each other's challenges, and respect the choices that each of us make.

It is vitally important that VOR members sign up to speak at these meetings. Every voice in favor of 14(c) programs is needed, to help preserve these opportunities for those families who benefit from them.

Michigan businesses and organizations that hold special subminimum wage certificates for people with disabilities

Section 14(c) of the federal Fair Labor Standards Act allows the issuance of special wage certificates to employers of disabled workers who are unable to work successfully in competitive work settings for competitive wages. The special subminimum wage certificates have been used especially for vocational centers that serve people with severe disabilities who would otherwise not be employed. Vocational work centers often offer additional social services and specialized care for people with severe medical or behavioral problems. 

There are other resources available through state vocational rehabilitation departments to assist with opportunities for competitive employment. No one can legally be forced to work in a vocational work center. 

14(c) Certificate Holders in Michigan

From the U.S. Department of Labor, Wage and Hour Division

“The following employers hold or have applied for certificates issued under section 14(c) of the Fair Labor Standards Act. The certificates authorize employers to pay subminimum wages to workers with disabilities that impair their productivity for the work they perform. This list is current as of April 1, 2021.

“The list contains the following information: certificate type, employer name, employer address, whether the application for the certificate was an initial or renewal application, whether the employer indicated it held government contracts covered by either the Walsh-Healey Public Contracts Act (PCA) or the McNamara O’Hara Service Contract Act (SCA) at the time of application, and the number of workers with disabilities who were paid subminimum wages by the certificate holder during their most recently completed fiscal quarter. This data is based solely on information provided on the employer's certificate application. The list also includes the status of the certificate and certificate starting and ending dates.

“For certificates in 'pending' status, some columns are blank. All data is displayed for issued certificates.”

To find Michigan holders of 14(c) wage certificates, go to the spread sheet on the website that lists employers. Click on the column for "state". This will show states listed in alphabetical order with detailed information about employers using the special wage certificates.

There are 1,704 subminimum wage certificates in Michigan issued by the US Department of Labor. 13 businesses have wage certificates “pending”. If Congress eliminates these subminimum wage certificates, many these employees will either lose employment opportunies currently offered or they will be shifted to other programs, such as day programs, if they are unable to unwilling to participate in competitive employment. In the "Raise the Wage Act of 2021" there are no requirements for states to track what happens to these workers or to examine the fate of many workers who have been moved out of work center programs. There is an assumption in the proposed legislation that competitive employment works for everyone and when it doesn't, the federal government is not interested in hearing about it.

Myths and Facts about Vocational Work Centers

The Raise the Wage Act of 2021 would increase the federal minimum wage to $15 per hour, a move supported by a majority of Americans. However, the bill would also lead to the elimination of work opportunities for thousands of severely disabled workers. By eliminating the use of sub-minimum wage certificates authorized by section 14(c) of the Fair Labor Standards Act, businesses that operate work centers that make special accommodations for severely disabled workers would very likely be unable to continue operating. 

Here are the Myths and Facts about work centers from VOR (a Voice Of Reason), a national nonprofit organization advocating for a full range of employment, service, and residential options to meet the needs of people with intellectual and developmental disabilities (I/DD).

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MYTHS AND FACTS ABOUT VOCATIONAL WORK CENTERS

MYTH: People with intellectual and developmental disabilities (I/DD) and their families are dissatisfied with vocational work centers.
FACT: Vocational work centers (also known as sheltered workshops) are valued for the services they provide to people with I/DD who are unable to adapt to competitive employment. When these centers are threatened with closure, employees with I/DD and their families are the most fervent advocates for keeping them open.

MYTH: Vocational work centers are isolating environments.
FACT: These work centers are part of the greater community. Those who choose jobs at work centers develop a sense of accomplishment and self-worth because of work completed. Far from being isolating, they offer people a sense of camaraderie and a chance to interact with their peers.

MYTH: Vocational work centers are the only choice for work for people with intellectual disabilities.
FACT: There are many resources available through state vocational rehabilitation departments to assist with opportunities for competitive employment. No one can legally be forced to work in a vocational work center. 

MYTH: Work centers do not provide opportunities to transition to competitive employment in the community.
FACT: For those who can develop skills to work in competitive employment, work centers provide opportunities to learn skills necessary to be successful such as being on time, working with others, and completing assigned tasks.

MYTH: All people, no matter the nature of their disability, can find competitive employment.
FACT: Some individuals have more difficulty adapting to competitive employment. Vocational centers provide opportunities for work while providing more specialized supports such as personal hygiene care, preventing and attending to seizures, or helping with behavioral issues and developing social skills.

MYTH: Work centers do not provide for meaningful jobs.
FACT: Examples of work opportunities include: manufacturing, item assembly, recycling, packaging, repair, and machine operating. https://dese.mo.gov/special-education/sheltered-workshops/jobs-performed-sheltered-workshops   

MYTH: Oversight of vocational work centers is lax.
FACT: According to the Department of Labor: “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.”
https://www.dol.gov/whd/regs/compliance/whdfs39.pdf

MYTH: Vocational work centers violate the 1999 Supreme Court Olmstead decision.
FACT: The 1999 Supreme Court Olmstead decision supports CHOICE. Closing these centers contradicts the opinion expressed by the majority of Justices in Olmstead by eliminating a desired, chosen and helpful employment option. 

MYTH: Eliminating 14(c) certificates of the Fair Labor Standards Act will increase employment rates of all individuals with disabilities.
FACT: 14(c) wage certificates of the Fair Labor and Standards Act allow employers to afford to provide the specialized services needed by people with I/DD who are not able to adapt to competitive employment. Eliminating these wage certificates will force the closure of vocational work centers, eliminating jobs with no replacement in
competitive employment.

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See also:

VOR opposes part of the Raise the Wage Act 

Biden's Opening Disability Gambit would eliminate crucial programs for the severely disabled from the National Council on Severe Autism

VOR opposes part of the Raise the Wage Act that would eliminate work opportunities for the most severely disabled

Legislation to raise the federal minimum wage to $15/hour was initially part of The American Rescue Plan, a huge piece of legislation that was passed by Congress and signed by President Biden on March 11, 2021. It was removed before the bill was voted on, but proposals to raise the federal minimum wage continue as stand-alone bills in Congress. The Raise the Wage Act of 2021 has the most support at the moment, and will likely come up for consideration in the future.

Although raising the federal minimum wage is supported by a majority of Americans, the Raise the Wage Act includes a proposal that would adversely affect thousands of  people with Intellectual and Developmental Disabilities (I/DD), especially those who are unable to work in integrated work settings for competitive wages. Part of the proposed legislation would phase out and then eliminate work programs that make accommodations for people with the most severe behavioral and intellectual disabilities. 

One of those accommodations is the use of special wage certificates that allow employers to pay less than minimum wage to people unable to successfully compete with other workers in competitive work settings. These work programs (formerly called sheltered workshops) are voluntary on the part of the disabled employees. They usually provide other social services along with supervised work opportunities. Many of the participants receive support from other government programs and do not rely solely on their employment for basic living expenses. Programs that help disabled employees include SSI (Supplemental Security Income), Medicaid health insurance, and home and community based services to meet the extensive needs of this population. Other employees live in federally regulated Medicaid-funded Intermediate Care Facilities for people with intellectual disabilities. The proposed legislation will result in fewer employment opportunities for these workers, not more. Most will lose programs in settings appropriate to their needs.

The following is a message to Congress from VOR (a Voice Of Reason) warning of the consequences of eliminating special wage certificates and reducing opportunities for work by people with I/DD.

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Please Oppose Elimination of the Section 14(c) Subminimum Wage Certificate Program that Provides for Vocational Work Centers for Individuals with Intellectual and Developmental Disabilities

VOR is a grassroots advocacy organization comprising mostly families of individuals with severe intellectual and developmental disabilities (I/DD), often complicated by significant medical, psychological, and/or behavioral conditions. Just as your neighbors and friends vary in ability, so do people in the disability community. The only difference is that the variance is far greater, with some older individuals with I/DD functioning at the level of young children. VOR has advocated for nearly 40 years for Congress and the public to recognize these differences and make sure these individual needs are not ignored in the push by other advocacy groups for everyone with I/DD “to live a life like yours in the community.” Our approach has been to advocate for a full range of residential options to meet the needs of individuals instead of the one-size-fits all approach. Consistent with this view, we support maintaining a full range of employment options for the I/DD community, making sure these opportunities provide for those who can succeed in competitive integrated employment as well those who cannot.

The American Rescue Plan, H.R. 603 and S. 53, include provisions to raise the minimum wage to $15 an hour for all workers, including all individuals with I/DD. This legislation would phase out the section14(c) program authorized by the Fair Labor Standards Act. The unintended consequence of such a broad provision would be to completely eliminate employment opportunities for thousands of the nation’s most disabled individuals.

What are specialized wage certificates and why is it important to retain them? Section 14(c) [of the Fair Labor Standards Act] authorizes the issuance of these certificates that permit employers to pay individuals with I/DD lower than the federal minimum wage when their level of productivity is so low as to make them noncompetitive in the general workforce. It requires employers to make special accommodations for their intellectual, physical, behavioral, and mental illness challenges, giving thousands of individuals with I/DD the opportunity to work in a specialized environment that nurtures them and fits their abilities.

They earn wages that are appropriate to their level of productivity and their capacity to work. Without 14(c) certificates, they would lose any opportunity to work. 

What is the argument for eliminating the program? Support for eliminating this program rests on the false premise that this is a civil rights issue, i.e., that all individuals, including those with I/DD, can perform work tasks at a level that warrants the minimum wage, and so should be paid accordingly. This is simply not true, and were this notion to be incorporated into legislation, it would result in many individuals with severe I/DD disabilities losing, not gaining, work opportunities. Surely, that is not the goal of this provision.

Who are the individuals who benefit from the 14(c) program, what do they do, and how does it enrich their lives? Employment usually takes place at facility-based work centers, formerly called “sheltered workshops”. These vocational centers provide a specialized environment adapted to individuals with I/DD who desire to work, but may have frequent seizures, act out physically, even violently, when stressed, or need help toileting or having their adult diapers changed.

At the centers, workers crush cans, fold letters for mailing, stuff envelopes, fill soda bottles and cough drop boxes, pack and label items, and perform many small-piece assembly tasks. Each of these employees has a job coach (direct support professional). Sometimes they work alone and sometimes they perform these tasks with assistance. If the work centers had to pay them minimum wage, they would have to close, leaving the workers unemployed.

These centers provide more than employment. They also afford workers opportunities to build self-esteem, develop friendships, and engage in their communities. People who work at these centers do so without fear of being fired, or of having to live up to competitive standards of productivity in order to show their worth. Earned wages, though appreciated, are not the substantive reward for these individuals. 

Congress should expand, not decrease, employment opportunities for all people with I/DD. This is not a binary, either/or, situation. Congress can help those who can perform in a competitive environment without depriving those who are less able from the opportunity to work. VOR supports paying minimum wage to people with I/DD who are able to work in the competitive workplace.

However, ignoring the reality of different degrees of disability would result in thousands losing their jobs. This must not be the outcome. The answer is simple – pay minimum wage to people with I/DD who can, with reasonable accommodations, perform at a competitive productivity level and continue the
section 14(c) program for those who cannot.

Retaining specialized wage certificates under Section 14(c) of the Fair Labor Standards Act and supporting work centers will help persons with severe intellectual, behavioral, and medical challenges continue to find success in productive work, earn a wage, build self-confidence, make friends, and participate in their communities.

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Read more: 

"An Existential Threat against the Significantly Disabled:
Phase-Out of Vocational Centers (Sheltered Workshops)", by Harris Capps, November 2019

"Subminimum Wage: Exploitation or Lifesaving?"

Proposals to raise the minimum wage for all workers may leave some workers with disabilities struggling with unintended consequences

The federal Raise the Wage Act was introduced in the last Congress in an effort to eventually raise the minimum wage to $15 per hour for all workers, including those with even the most severe disabilities. This has apparently been reintroduced as H.R. 603 and S. 53 and included in The American Rescue Plan. Besides raising the minimum wage for all workers, It would eliminate special wage certificates for people with severe disabilities. These 14(c) special wage certificates are authorized by the Fair Labor Standards Act and allow work centers (formerly called “sheltered workshops”) to pay workers less than minimum wage when their level of productivity prevents them from being competitive in the general workforce. These specialized work centers provide opportunities and special accommodations for people who would otherwise be unable to compete for jobs.

Elimination of the 14(c) wage certificates would ultimately lead to the closure of work centers that thousands of workers with intellectual and developmental disabilities (IDD) and their families rely on for meaningful employment and other benefits of a specialized work environment that accommodates the needs of people with the most severe disabilities. Although this has often been framed as a civil rights issue, no one is compelled to accept employment at a work center and the law provides protections for workers and requirements for employees designed to prevent exploitation. [See Fact Sheet on The Employment of Workers with Disabilities at Subminimum Wages]

In a recent news update, ACCSES, an organization representing providers of disability services, provides details of the Raise the Wage Act  and follows these with comments on the parts of the legislation affecting workers with disabilities:

“Before moving on to other news, we want to pause for a moment and talk about 14(c). At ACCSES, we see 14(c) as part of a continuum of paid work opportunities that increase options for people with the most significant disabilities. Neither this bill, nor others introduced in the past, will lead directly to more employment for individuals working under a certificate. It is not a binary choice. Rather, for many, it will eliminate an option that is highly valued and regularly coupled with other services, including competitive employment, which often provides for only a few hours of work per week.

“A great deal of energy is devoted to trying to eliminate 14(c). Imagine if all of that collective attention were repurposed to reducing the need for 14(c) by focusing instead on closing the vast competitive employment gap for individuals with disabilities, expanding options, educating commercial and nonprofit employers generally of the tremendous workforce available to them, finding legislative solutions that encourage more employers to hire people with the most significant disabilities, increasing funding for supported employment and customized employment, increasing funding for social enterprise models and apprenticeship programs, recognizing disability service providers as the foundation of the disability service system (including employment) rather than trying to exclude them or dismiss their incredible depth of knowledge and experience, and most importantly, honoring the legitimate choice of individuals to have the job they want. This could lead to more positive results than simply eliminating 14(c) and forcing people into unpaid work, day support programs (which is a perfectly fine choice for individuals and already available as an option) or leaving individuals with few options at all other than being at home. This pandemic has shown many of us how difficult it is to be isolated at home away from our communities for long periods of time. Moreover, it has underscored the trauma of job loss, which should not be overlooked.

“At no time has the federal government conducted an actual study as to what has happened to individuals in states where 14(c) has been eliminated as a work payment choice. A true, unbiased study should be undertaken as a first step before any movement to eliminate 14(c) or limit its use, as it will highlight where attention for positive change should be focused. There are numerous ancillary concerns that must be taken into consideration – social security asset limits, transportation, the unemployment rate generally as well as specifically in the most rural parts of our country, the movement toward robotic solutions for businesses, jobs leaving the U.S., and the economic impact on families of eliminating an option that is providing a source of consistency and community, etc. Taking a paid work opportunity from people who take pride in their work will not by itself lead to more paid employment options or opportunities. This is a complex issue, and it will take getting everyone around the table to sit down with open minds to come up with good ideas to increase opportunities, not to just take away an option. A solution that will deny some individuals the dignity of work or that denigrates their jobs is the ultimate demoralizer. This is what keeps us up at night."

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More on specialized work centers, sub minimum wages, and supported employment from The DD News Blog.

Subminimum Wage: Exploitation or Lifesaving?

I interrupt coverage of the Covid-19 pandemic with some nostalgia from way back in January 2020 ...

This is from the National Council on Severe Autism (NCSA) blog: 

Disability Advocates Discriminate Against the Severely disabled by Harris Capps, 1/16/20
 
[This commentary is based on a response to the above video, “Exploitation OR Lifesaving? The Controversy Around Disabled People Being Paid Pennies An Hour,” by Philip DeFranco.]

See more on this issue in The DD News Blog 

Disability Wrongs: Advocacy gone awry

This video is from ACCSES, an organization representing disability service providers including providers of work centers (sheltered workshops). On 7/25/18, the organization held a Capitol Hill Briefing in defense of a broad range of work settings for people with disabilities including work centers for people who would otherwise be unable to compete for employment. Self-advocates who participate in these work programs were scheduled to speak, but they were shouted down and the meeting disrupted by other self-advocates from disability organizations with opposing views. 

According to ACCSES, this is what happened:

“Despite what disability policy seems to indicate: People with disabilities are not a monolithic group. Rather, people with disabilities are individuals, with the same right to choose where they want to live, work, and thrive as anyone else. That basic civil right to live life with dignity and respect is being subsumed by feel-good laws that do not benefit many individuals, and advocates who support those laws over individual rights. That’s the rub. Right now, current and proposed laws and regulations, as well as policymakers, agencies, and some advocates—even those with good intentions—are putting a broad range of employment, residential, and community support options for people with disabilities at risk. In doing so, they are taking away the civil rights of individuals with disabilities.

“That was never made more clear than on July 25, 2018, when a dozen people with disabilities, some of whom work on the Capitol campus and others who traveled all the way from the middle of the country, wanted to share their stories of why their jobs matter. Instead, they were shut down by advocacy groups that crashed an ACCSES Capitol Hill briefing and frighteningly shouted over the self-advocates with disabilities who were scheduled to speak. The Capitol police had to be called, the individuals who came to speak never got to address the audience in the room. This is where current disability policy has led, not to increased opportunity and respect, but to a concerted effort to take away the civil rights of individuals with disabilities by limiting their choices. It must end. Individuals must be allowed to live, work, and thrive in settings that best meet their needs – not the needs of others.” 

The organizations taking the lead in these disruptive activities were ADAPT and NCIL, the National Council on Independent Living. They put out their own version of events on 7/25/18, “Disability Rights Groups Protest Provider Efforts to Continue the Exploitation and Isolation of People with Disabilities”.

The ACCSES briefing included support of a House bill called the "Workplace Choice and Flexibility for Individuals with Disabilities Act". You can read the bill, H.R. 5658, in less than 5 minutes and see for yourself if it has anything in it that would produce the cataclysmic results that ADAPT and NCIL are predicting. There is nothing in it that would limit or impede the opponents of the bill to receive the employment services in integrated, competitive work settings that they say they want. In the ADAPT/NCIL hyperbolic assessment of the bill, they claim that “This bill resurrects walls of exclusion by segregating people with disabilities both socially and economically, allowing service providers to keep disabled people in workplaces that are isolated from the rest of society, and to pay those workers pennies on the dollar for the value of their work.” 

In the ADAPT/NCIL version of events there is no mention of disability self-advocates and their families supporting the bill who believed they had a meaningful opportunity to express their support, only to be shouted down by other advocates from opposing advocacy organizations who claim to represent everyone with a disability. One of the ADAPT organizers, Anita Cameron, is quoted as saying, “They need to hear from disabled people, they need to hear about the lives we want to live and the communities we want to build. 28 years after the signing of the ADA it is insulting that any organization would pretend to know our needs better than we do.” This was not intended ironically, even as the demonstrators were shouting down other people with disabilities and disrupting the meeting to the extent that the police had to intervene and make arrests. 

Another well-known advocate supporting the demonstrators was Ari Ne’eman, a founder of ASAN, the Autistic Self Advocacy Network, and a former member of the National Council on Disability. He is currently an advisor to the American Civil Liberties Union on disability policy and Medicaid. He is seen sitting in the audience holding up his cell phone at 2:37 in the ACCSES video. He was covering the event by tweet, saying among other things that this was a “Historic event”. He makes no reference to others with disabilities who have opposing views to his own. 

No one deserves to be silenced by the kind of bullying displayed by the aggressive tactics of ADAPT, NCIL, and their supporters.

This whole debacle was exacerbated by disability organizations using the royal “we” when they claim to represent everyone with a disability. I found a word for it, something to add to the multitude of “isms” and other terms that get thrown around and at people who one disagrees with: Nosism. According to Wikipedia, Nosism, from the Latin nos, "we", is the practice of using the pronoun "we" to refer to oneself when expressing a personal opinion. At least “we” learned something new from this tawdry event.

More comments on non-competitive employment for people with intellectual and developmental disabilities

Testimony from 18 Missouri, an organization representing 6,000 families in support of people benefitting from non-competitive employment.

See more on Youtube.

Today, 12/15/19 is the last day to submit comments to the U.S. Commission on Civil Rights Regarding Section14(c) of the Fair Labor Standards Act. 14(c) allows employers to pay people with disabilities less than minimum wage based on their individual abilities and needs. Protections in the law make acceptance of non-competitive employment voluntary. Other employment opportunities are available for people with disabilities who want competitive employment for at least minimum wage through Vocational Rehabilitation agencies and supported employment services. 

Submit comments by email here, subminimumwages@usccr.gov . 

Although comments are due today, anyone can comment any time to the US Commission on Civil Rights.

The following are excerpts from a letter dated 11/14/19 from Jill Escher, President of the National Council on Severe Autism, to the US Commission on Civil rights regarding “non-competitive employment options with severe cognitive, functional and behavioral disabilities”. Read the full text of the letter here.

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National Council on Severe Autism
PO Box 26853
San Jose, CA 95159
info@ncsautism.org
ncsautism.org
November 14, 2019 

United States Commission on Civil Rights
Via email: subminimumwages@usccr.gov 

...We fully understand and appreciate that some individuals with disabilities have been paid less than their productivity warrants—clearly, justice requires that those individuals receive competitive wages. However, a substantial portion of the disability sector—namely, those with substantial cognitive and behavioral impairments who lack the ability to engage in work at a competitive level—require noncompetitive, highly supported options…. 

All Americans should have access to work, but elimination of 14(c) de facto excludes our severe ID population from the workforce based on the fantasy that all intellectually disabled adults could achieve competitive employment. A few more key points: 

• Given the staggering increase in the population with severe autism, we see a clear imperative to create vastly more, not fewer, options for day programming and supported forms of employment. …We need to maximize their person-centered options, including work that pays special wages based on less-than-competitive productivity.
• Subminimum wage work is but one benefit accruing to the significantly disabled clients. …A standard job supervisor is unlikely to treat seizures, change diapers, or handle getting punched or scratched, to put it mildly. The extremely valuable, though non-monetary, therapeutic dimensions should be considered before over-simplistically labeling subminimum wages as discriminatory. 
• 14(c) programs serving the significantly intellectually disabled provide a protected form of employment unavailable in the free market...the employee’s needs comes first, and profitability is not the prime endpoint. The nonprofit work is typically tailored to the particular skillset of the worker, a customization unavailable in the free labor market where individuals are expected to conform to pre-established performance standards...Disability advocates often accuse 14(c) wage programs of exploiting or abusing their disabled workers, but for severely challenged adults, the opposite is almost always true— the programs often protect clients from exploitation and abuse by offering protected employment. 
• No person with a disability is forced into 14(c) work, and wages are set carefully. … 
• Most workers with disabilities, for example physical disabilities, are already in the competitive market...As Harris Capps, the father of Matthew, who loves his job in an Ohio work center, states, "If a higher functioning individual is able to get a job providing a mandated minimum wage, surely, they already have the minimum wage law in effect to protect them." 
• When non-competitive workshops close, participants often end up idle at home, lonely and unemployed, or if they work at all, with decreased job hours and decreased total wages. Where is the data suggesting better outcomes for the severely disabled who are denied the opportunity to work? We have seen none. Slashing their jobs, leaving them to languish at home, detached from any community of peers, with no viable alternative discriminates against our most vulnerable. The ostensible “liberation” of requiring competitive employment obviously strands our most vulnerable citizens. At a minimum, 14(c) must remain intact for our subset who lack capacity for competitive employment. 

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Fact Sheet on Subminimum Wages for People with Disabilities

The DD News Blog testimony to the USCCR

Testimony on special wage certificates for people with disabilities

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.”

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.”

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.

“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

A brief history of work centers for people with disabilities and subminimum wage

[The term "Sheltered Workshop" is used pejoratively by many advocacy organizations promoting the elimination of these programs. Other terms, such as facility-based or center-based work programs for people with severe disabilities are equally valid and often preferred by those who need and want these programs to continue, even when they pay less than minimum wage as allowed by law. Any of these terms mean the same thing as far as I am concerned.] 

A 1998 Technical Assistance Circular from the U.S. Department of Education on State Vocational Rehabilitation Agencies and Community Rehabilitation Programs gives some historical perspective on the origins of employment programs for people with severe disabilities:

"In 1938, President Franklin D. Roosevelt signed into law the Wagner O'Day Act to provide employment through the sale of products to the Federal government for persons who were blind. Congress amended this Act in 1971 as the Javits-Wagner-O'Day Act (JWOD) to also include Federal contracts for products and services and expanded the Act to provide employment opportunities for other persons with severe disabilities..."

The 1971 amendments to the act include expanded employment opportunities. State Vocational Rehabilitation agencies were encouraged to coordinate with Community Rehabilitation Programs (CRPs) that employ people at or above minimum wage, but also to provide “extended employment”. Extended employment is defined as "work in a non-integrated or sheltered setting for a public or private non profit agency that provides compensation in accordance with the Fair Labor Standards Act, and any needed support services to an individual with a disability to enable the individual to continue to train or otherwise prepare for competitive employment, unless the individual through informed choice chooses to remain in extended employment”[emphasis added].

One of the criticisms of the 1938 law is that it is old - sometimes the word "archaic" is used. Tell that to people receiving social security old age benefits based on a 1935 law, and I doubt that many of them will return their checks because the law is old.

A criticism of the 1971 amendments (JWOD) is that the people who passed the law were somehow unenlightened and did not believe, as many advocates now claim, that everyone with a severe disability can work in integrated, competitive employment. Thousands of people in center-based work programs and their families disagree. They need and value the types of employment and other services offered by these so-called archaic work programs. Many disabled individuals have tried integrated, competitive employment, and either could not find or keep a job or could not function in competition with other employees in integrated work settings.

Vocational Rehabilitation programs that train and provide services for people with disabilities for competitive employment are time-limited and the goals of these programs are out of reach for many people with intellectual and developmental disabilities (IDD). WIOA, the Workforce Innovation and Opportunity Act signed by President Obama in 2014, loosened up some of the requirements for vocational rehabilitation services, but it prioritizes integrated competitive employment above work in non-integrated work settings that may not be suitable for many people with IDD.

Supported Employment Services, are defined in the DD Act (The Developmental Disabilities Assistance and Bill of Rights Act of 2000) for people with IDD as follows:

The term 'supported employment services' means services that enable individuals with developmental disabilities to perform competitive work in integrated work settings, in the case of individuals with developmental disabilities

• for whom competitive employment has not traditionally occurred; or
• for whom competitive employment has been interrupted or intermittent as a result of significant disabilities; and
• who, because of the nature and severity of their disabilities, need intensive supported employment services or extended services in order to perform such work.

Supported Employment is often funded through Medicaid Waivers for people with IDD in integrated settings for at least minimum wage. These services can continue as long as needed, unlike vocational rehabilitation services that are time-limited. These services, however, can be very costly and not suitable for some people with more severe disabilities.

Work programs that hire people with more severe disabilities can obtain special wage certificates under the Fair Labor Standards Act to pay employees less than minimum wage, but commensurate with the individual's abilities and productivity. Wage certificates are threatened with elimination as are the programs that employ people with severe 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.

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See also, The DD News Blog "Fact Sheet on Sub Minimum Wages for People with Disabilities"

Comments needed by 12/15/19.

"VOR's Position on Sheltered Workshops"

The DD News Blog on supported employment

Fact Sheet on Subminimum Wages for People with Disabilities

The US Department of Labor issued a Fact Sheet on “The Employment of Workers with Disabilities at Subminimum Wages” in 2008. It still applies, even as discussion of changes to the law is currently a hot topic.

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.

The facts show, that working in a sheltered workshop or other non-competitive employment situation is not an arbitrary decision nor is it compulsory: “The fact that a worker may have a disability is not in and of itself sufficient to warrant the payment of a subminimum wage.”

Wages must be commensurate with the individuals 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.” 

In addition, Many facility-based job sites for people with more severe disabilities offer other services in addition to employment. Most employees with intellectual and developmental disabilities (IDD) receive benefits such as Supplemental Security Income, Medicaid covered health insurance, and other supports for people with low incomes and special needs. .

People with 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 these benefits and choices 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.

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U.S. Department of Labor
Wage and Hour Division
(Revised July 2008)

Fact Sheet #39: The Employment of Workers with Disabilities at Subminimum Wages

This fact sheet provides general information concerning the application of section 14(c) of the Fair Labor Standards Act (FLSA).

Characteristics

Section 14(c) of the FLSA authorizes employers, after receiving a certificate from the Wage and Hour Division, to pay subminimum wages - wages less than the Federal minimum wage - to workers who have disabilities for the work being performed. The certificate also allows the payment of wages that are less than the prevailing wage to workers who have disabilities for the work being performed on contracts subject to the McNamara-O'Hara Service Contract Act (SCA) and the Walsh-Healey Public Contracts Act (PCA).

A worker who has disabilities for the job being performed is one whose earning or productive capacity is impaired by a physical or mental disability, including those relating to age or injury. Disabilities which may affect productive capacity include blindness, mental illness, developmental disabilities, cerebral palsy, alcoholism and drug addiction. The following, taken by themselves, are not considered to be disabilities for purposes of paying subminimum wages: education disabilities, chronic unemployment, receipt of welfare benefits, nonattendance at school, juvenile delinquency, and correctional parole or probation.

Section 14(c) does not apply unless the disability actually impairs the worker's earning or productive capacity for the work being performed. The fact that a worker may have a disability is not in and of itself sufficient to warrant the payment of a subminimum wage.

Coverage

Any person who works on or otherwise handles goods that are moving in interstate commerce is individually subject to the minimum wage and overtime requirements of the FLSA. In addition, employees of enterprises operated for a business purpose that have an annual dollar volume of sales or business done of at least $500,000 are also subject to the FLSA's requirements. Furthermore, employees of public agencies; hospitals; institutions primarily engaged, in the Act's own words, “in the care of the sick, the aged, or the mentally ill or defective who reside on the premises;” schools for children who have disabilities; or preschools, elementary or secondary schools, or institutions of higher education are covered on an enterprise basis regardless of the annual dollar volume of the employer.

Requirements

Certification

Employers must obtain an authorizing certificate from the Wage and Hour Division prior to paying subminimum wages to employees who have disabilities for the work being performed. Employers shall submit a properly completed application (Form WH-226-MIS, Application for Authority to Employ Workers with Disabilities at Subminimum Wages.) and the required supporting documentation to: 

United States FS 39
Department of Labor, Wage and Hour Division, 230 South Dearborn Street, Room 514, Chicago, Illinois, 60604-1757; (312) 596-7195. Certificates covering employees of work centers and patient workers normally remain in effect for two years. Certificates covering workers with disabilities placed in competitive employment situations or School Work Experience Programs (SWEPs) are issued annually.

Commensurate Wage Rates

Subminimum wages must be commensurate wage rates - based on the worker's individual productivity, no matter how limited, in proportion to the wage and productivity of experienced workers who do not have disabilities performing essentially the same type, quality, and quantity of work in the geographic area from which the labor force of the community is drawn. The key elements in determining commensurate rates are:

•Determining the standard for workers who do not have disabilities, the objective gauge against which the productivity of the worker with a disability is measured.

•Determining the prevailing wage, the wage paid to experienced workers who do not have disabilities for the same or similar work and who are performing such work in the area. Most SCA contracts include a wage determination specifying the prevailing wage rates to be paid for work on the SCA contract.

•Evaluating the quantity and quality of the productivity of the worker with the disability.

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.

Overtime, Child Labor and Fringe Benefits

Generally, workers subject to the FLSA, SCA, and/or PCA must be paid overtime at least 1 1/2 times their regular rate of pay for all hours worked over 40 in a workweek. Minors younger than 18 years of age must be employed in accordance with the youth employment provisions of the FLSA and PCA. Neither the FLSA nor PCA have provisions requiring the payment of fringe benefits. Workers paid subminimum wages, however, must receive the full fringe benefits listed on the wage determination when performing work subject to the SCA.

Enforcement

The Wage and Hour Division is responsible for the administration and enforcement of the FLSA. In addition, 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.

Worker Notification

Each worker with a disability and, where appropriate, the parent or guardian of such worker, shall be informed orally and in writing by the employer of the terms of the certificate under which such worker is employed. In addition, employers must display the Wage and Hour Division poster, Notice to Workers with Disabilities Paid at Special Minimum Wages (WH Publication 1284).

Where to Obtain Additional Information

For additional information, visit our Wage and Hour Division Website: http://www.wagehour.dol.gov and/or call our toll-free information and helpline, available 8 a.m. to 5 p.m. in your time zone, 1-866-4USWAGE (1-866-487-9243).

This publication is for general information and is not to be considered in the same light as official statements of position contained in the regulations. U.S. Department of Labor Frances Perkins Building 200 Constitution Avenue, NW Washington, DC 20210

1-866-4-USWAGE

TTY: 1-866-487-9243Contact Us

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See also, Because We Care - "What is all this about subminimum wage?"

The DD News Blog - more on special wage certificates

Are opponents of special wages for people with IDD protecting their civil rights or limiting job opportunities?

Saint Lucy

December 6, 2019

This is from Together For Choice (TFC), a national advocacy organization for people with intellectual and developmental disabilities. According to the TFC Website, 

"Together for Choice was organized by providers and families across the country seeking to enhance the right of individuals with developmental disabilities to choose where to live and how to spend their days. We stand for the proposition that individuals with developmental disabilities should have the same rights as everyone else to decide where to live, work, recreate and receive services."

TFC is encouraging its members and other interested parties to send comments to the U.S. Commission on Civil Rights regarding special wage certificates that protect jobs for people who are not able to work for competitive wages in fully integrated work settings. 

Submit your comments to the US Commission on Civil Rights BY DECEMBER 15.

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Action needed to submit comments to the U.S. Commission on Civil Rights Regarding 14(c)

Dear Together for Choice Member:

Section 14(c) of the Fair Labor Standards Act continues to be under attack. Once again it is critical that we act to protect the work opportunities of our loved ones. The United States Commission on Civil Rights held a briefing in Washington, D.C. and is accepting comments through December 15 on the following topic: “Subminimum Wages: Impacts on the Civil Rights of People with Disabilities.” The way the topic is phrased makes it clear where the Commission is going. It uses the derogatory term “subminimum wage” and turns special wages that accommodate an individual’s abilities and helps them gain employment into a violation of their civil rights.

As we have previously discussed, special wages for those with disabilities is permitted under Section 14(c) of the Fair Labor Standards Act and has been in existence for over 80 years. This provision permits employers to pay individuals with disabilities a specialized wage based on their ability to perform the job. At no point does the statute refer to these wages as “subminimum.” The purpose of Section 14(c) is to help individuals with disabilities to obtain employment. No one is forced to work at 14(c) wages. Therefore, the statute preserves choices for our loved ones; it preserves their civil right to choose the employment setting that best suits them.

Last spring when we asked you to submit comments on 14(c) to the Department of Labor, your response was overwhelming. There were far more comments supporting 14(c) than opposing it. It was important that the Department of Labor hear from the families that would be affected by a repeal of this important law. We must do the same now with our comments to the US Commission on Civil Rights. The briefing scheduled for last Friday, November 15, had a full list of previously selected speakers. Virtually all of the scheduled speakers oppose Section 14(c) and want to see it eliminated along with work programs designed to meet the needs of those with developmental disabilities. The Commission needs to understand that the repeal of Section 14(c) will mean the loss of employment for men and women with significant intellectual or developmental disabilities, like our loved ones. It is important that the Commission hear from us, the families and providers that serve those with intellectual disabilities. The Commission must recognize that there is no “one size fits all” solution when it comes to employment of individuals with disabilities.

The real civil rights issue here is choice. The right of our loved ones to choose the employment option that best meets their needs must be respected. To repeal 14(c) and deny our family members that choice would violate their civil rights.

Therefore, please submit your comment to the US Commission on Civil Rights BY DECEMBER 15.

https://www.usccr.gov/press/2019/11-13-Subminimum-Wages-PR.pdf

... Please make sure you put your comment in your own words. Individual comments have a much greater impact than those that look like copies of others’ comments.

Comments can be emailed to: subminimumwages@usccr.gov

(If you'd like for us to keep a record of your email, you can copy info@togetherforchoice)

Comments can also be mailed to the Commission at the following address:

OCRE/Public Comments
U.S. Commission on Civil Rights
1331 Pennsylvania Ave. NW
Suite 1150
Washington, DC 20425

Closure of Vocational Centers: A Threat Against the Significantly Disabled

Matt at work

This is by the father of Matt. Matt has intellectual and developmental disabilities. He loves his job in a vocational center, sometimes known as a sheltered workshop. Why do some people want to take his job away from him?

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An Existential Threat against the Significantly Disabled:
Phase-Out of Vocational Centers (Sheltered Workshops)

By: Harris Capps, November 2019

I am a Parent and Guardian for my son Matthew, who has moderate to severe Intellectual and Developmental Disabilities (IDD), to include autism and cerebral palsy that precludes speaking. He also has behavioral episodes that may range from tantrums to severe meltdowns that could result in injury to himself or others. Just explaining that to you is painful, because his dignity is important to us. He resides in an Intermediate Care Facility (ICF) which provides 24-hour care. He is largely unable to understand how to reason or make decisions. He knows that a dollar will help him go to MacDonald’s, but he has no concept of how many dollars and cents may be required. 

The very existence of Sheltered Workshops for those with Intellectual and Developmental Disabilities (IDD) has been attacked for the first time since the law was enacted in 1938 as a part of the new Social Security Program. Why do higher functioning disabled persons and their lobbying organizations want to deny lower functioning persons, the right to work? If a higher functioning individual can get a job that provides a mandated minimum wage, surely, they already have the minimum wage law in effect to protect them. So, let me tell you a bit more about Matt. 

Matthew loves to go to work at “PERCO”, a vocational Center in Perry County, Ohio. If we call him on Sunday evening and remind him that he gets to go to work the next day, he quite literally jumps up and down and makes sounds of anticipatory delight.

According to his job coaches, Matt is very proud that he accomplishes work and earns a paycheck. Matthew is unable to differentiate the amount of his check… he just revels in the fact that he has earned something of value which allows him to pay for things. If a picture is worth a thousand words, do you think this photo of Matt working conveys dissatisfaction or sadness? 

The following episode tells you the importance of his work. On a Saturday in February 2019, Fran and I got a call from nursing at Matt’s ICF. Matt had made the sign (crossed arms) for “work”. In other words, he wanted to go to work. But his Work Center is not open on the weekends. The direct care worker tried to explain to Matt that the Center was closed. Matt quickly went from a somewhat manageable tantrum to what we call a “meltdown” typically evidenced by his inability to control his emotions, yelling, crying, and in this case, he bit his direct care worker on the arm. The worker had to go to the hospital for treatment.

Supporters of “14 (c) Work Centers know many Myths for phasing-out the Sub-minimum Wage including self-determination. For example, it is simply untrue that “employers across the country are using this waiver to acquire cheap labor”. And, the false assertion that my son is somehow a victim of discrimination, and exploitation. Matt voluntarily attends a sheltered workshop because it fits his capabilities. People with IDD like Matt would never be able to work in “competitive employment” because his measured productivity (monitored by the Department of Labor) is too low, and for what he does achieve, he requires job coaches to teach, encourage and know how to deal with his disabilities.

An article written by David Ordan ["Eliminating subminimum wage waivers will harm hundreds of thousands of people with disabilities" 8/10/18 in thehill.com] said, 

“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”. 

He further explains that follow-up studies have shown the failure of closing Work Centers, like in Maine where, over a seven-year period displaced persons not able to obtain employment increased “Day Program” enrollment from 550 in 2008 to 3,178 in 2015.

Mis-informed logic ignores important subjective standards such as empathy, compassion and personal values resulting in treatment of folks like Matt as an individual. In 1938 persons who had just suffered through the Great Depression used not only logic but their values to say that Matthew Matters.

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See more on sub-minimum wage and sheltered workshops from The DD News Blog