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.

Abelone Kelley June 17, 2021 0

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.

Abelone Kelley February 02, 2021 0

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 

Abelone Kelley April 10, 2020 0

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.

Abelone Kelley January 09, 2020 0

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

Abelone Kelley December 15, 2019 0

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

Abelone Kelley December 13, 2019 0

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

Abelone Kelley December 12, 2019 0

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

Abelone Kelley December 09, 2019 0

Parents' comments on special wages for people with IDD

December 6, 2019

These comments are addressed to the US Commission on Civil rights regarding special wage certificates for people with intellectual and developmental disabilities.

See The DD News Blog for more information on the issues involved and how to submit comments. Comments are due by DECEMBER 15, 2019.


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Dear Commissioners: 

Our daughter Sarah lives at Misericordia in Chicago, IL. Misericordia is a non-profit entity serving over 600 children and adults with intellectual disabilities who require around-the-clock care. Sarah is 37 years old, has cerebral palsy, uses a wheelchair, and is intellectually about three to four years old. She needs assistance to perform all activities of daily living, including dressing, bathing, toileting, eating, and medicating.

We strongly support the special wages permitted by Section 14(c) of the Fair Labor Standards Act. It is essential that 14(c) remain available to those served by Misericordia.

Misericordia operates a number of work programs on its campus. The purpose of these programs is to provide job training to the men and women Misericordia serves and to provide them with a life of dignity. All of these programs operate at a loss. These programs are operated solely to give Misericordia residents the pride and self-esteem that come from holding a job. Without Section 14(c), the cost of these work programs would triple. Misericordia would be forced to employ fewer of its residents and employ them for fewer hours. The loss of job opportunities for our loved ones would not be replaced by off-campus jobs. Many Misericordia residents, including our Sarah, cannot obtain or maintain an off-campus job at the minimum wage. Sarah's intellectual and behavioral challenges preclude community employment. Her only opportunity at employment is an on-campus job where she can receive the constant care and support she requires.

We hope that through Misericordia's excellent training programs one-day Sarah can hold a job in Misericordia's laundry or recycling program. But, if Section 14(c) is eliminated, that will become impossible. The end of 14(c) would mean the end of our dream that Sarah will one day have a job on Misericordia's campus. The special wages permitted by Section 14(c) do not violate Sarah’s civil rights. In fact, Section 14(c) protects Sarah’s right to choose the work environment that best meets her needs. Depriving Sarah of that choice and relegating her to spend her days in non-work activities would violate her civil rights.

Thanks for your thoughtful consideration of this important issue.

Liz and Scott Mendel

Scott Mendel is the Chairman of the Board of Directors for Together For Choice

Abelone Kelley December 06, 2019 0

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

Abelone Kelley December 06, 2019 0

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

Abelone Kelley November 11, 2019 0

VOR opposes legislation that will lead to the closure of employment programs for severely disabled

VOR (a Voice Of Reason) “is a national organization that advocates for high quality care and human rights for people with intellectual and developmental disabilities.” The organization is unique in supporting individuals who have severe and profound disabilities and their families, especially those who need an institutional level of care. Many of our I/DD family members live in Intermediate Care Facilities for people with I/DD (defined as institutions under Medicaid law) while others live with their families or in community homes. 

VOR is unusual, if not unique, as a national organization that does not receive or seek funding from the federal government. VOR is 100% privately funded and receives more than 95% of its financial support from families of individuals with intellectual and developmental disabilities (I/DD). [See The Value of VOR Membership]

As a member of VOR for more than fifteen years, I found a home here for a number of reasons, not the least of which is that I have two adult sons with profound I/DD. With VOR, I am not obliged to follow an ideology that claims that all people with disabilities can live independent lives in their communities, dismissing mention of people like my sons who will never be independent or able to make their own decisions or work in competitive, integrated employment. I do not subscribe to the idea that the quality of my sons’ lives should be measured primarily in terms of how many non-disabled people they come in contact with in their daily lives. This is, in fact, what many federally supported disability organizations are obliged to espouse if they want those federal dollars.

Because VOR relies entirely on the generosity of families and friends, much of the work is done by family “volunteers” (or “draftees”, as is often the case). From time to time, I republish policy statements, commentary, and personal stories from VOR, mostly because they are consistently accurate and well-written and represent voices from the heartland of disability politics that are rarely heard, people with severe and profound disabilities and their families.

The following is a statement of VOR’s opposition to federal bills that include in them the elimination of sub-minimum wage certificates that would lead to the closure of employment programs that serve people with severe disabilities. 

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Please Oppose the Movement to Eliminate 
Work Centers and 14(c) Wage Certificates for 
Individuals with Intellectual and Developmental Disabilities 

The Raise the Wage Act:
H.R. 582 – Rep. Bobby Scott (D-VA) S. 150 - Sen. Bernie Sanders (D-VT)

The Transformation to Competitive Employment Act:
H.R. 873 - Rep. Bobby Scott (D-VA) S. 260 – Sen. Bob Casey (D-PA) 

Thousands of individuals with intellectual disabilities enjoy the opportunity to work in a specialized environment that nurtures them and accommodates their mental, physical and behavioral challenges, while rewarding them with specialized wages that, while not equal to full minimum wages, are appropriate to their level of productivity and their capacity to work. These opportunities rely on specialized wage certificates as provided for under Section 14(c) of the Fair Labor Standards Act. The employment usually takes place at facility-based work centers, sometimes referred to as sheltered workshops. These centers provide more than employment. They provide a protected atmosphere suited to the intellectual and behavioral challenges of the individuals who work there. They cater to a higher-needs population, which includes people who may have frequent seizures, who may act out physically, even violently, when stressed, or who may need help toileting or to have their adult diaper changed. This is a specialized environment for a special population.

In the first weeks of the 116th Congress, two bills have been introduced in the House and Senate that would eliminate these employment opportunities for individuals with intellectual disabilities. Proponents of these bills describe them as civil rights issues, asking:

“If a non-disabled person has the right to work for competitive wages, why should a person with intellectual disabilities be denied the right to work for full, competitive wages?”

This appears to be a perfectly reasonable question, until you think of the different forms of disability, and the severity of some intellectual disabilities. Then the matter becomes complicated, as not all disabilities are equal. 

A more accurate question would be:

“If a non-disabled person has the right to work for competitive wages, why should a person  with intellectual disabilities who is capable of working at an equal capacity be denied the right to work for competitive wages? And why should a person who is not capable of working at a competitive capacity be denied the opportunity to perform any work at all?”

Why VOR opposes these bills:

The movement to promote competitive employment for disabled individuals, encompassing people with visual, auditory, and physical disabilities as well as many people with I/DD, is a noble effort, a true civil rights issue that is overdue. As a society, we should be creating opportunities for those who want to work, and who are capable of integrating into the mainstream and working at a competitive level. But the implications of these two bills echo the “one-size-fits-all” mentality that dominates the I/DD system and marginalizes those individuals who do not fit into the “one size” population. “One-size-ism” will never be appropriate disability policy. The I/DD population is too complex and diverse to be treated with simplistic, one-sized solutions.

Both of these bills are aimed at providing competitive, integrated employment opportunities for those capable of achieving this level of employment, but they also insist on eliminating the current opportunities provided for those not capable or not desiring this level of employment.

The thinking behind this movement is that work centers are bad things that limit the individual’s capacity, and that given the opportunity to work in a competitive, integrated environment, all individuals will rise to their full capacity. Proponents of this movement, when forced to admit that some people will be shut out or left behind, speak as though this is an “acceptable consequence” of their plan. It is not. These are human lives. These are not disposable, expendable individuals. These people have families who love them and want the best for them.

There is no reason to accept these “acceptable consequences”, especially when there is no correlation between eliminating 14(c) wage certificates and investing in employment opportunities for individuals with disabilities. 

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The Raise the Wage Act has passed the House of Representatives and was introduced in the Senate. The Transformation to Competitive Employment Act has been introduced in the House and Senate with no other actions taken.

More posts from the DD News Blog on this issue.

Abelone Kelley October 16, 2019 0

Raise the Wage for some, Lose the Wage for others

This is from the VOR Weekly News Update, 7/19/19 on the recent passage of the Raise the Wage Act by the U.S. House of Representatives:

“On Thursday, July 18, the House of Representatives voted in favor of passing H.R. 582, the Raise the Wage Act. Tucked into this bill are provisions that would end Section 14(c) [of the Fair Labor Standards Act] wage certificates and re-structure wages paid by work centers, forcing tens of thousands of people with intellectual disabilities who are unlikely to participate in competitive employment, out of their existing opportunities to work at facility based employment.

“While some of our members may support raising the minimum wage while others may not, VOR members have come together to oppose this bill as written, in order to protect individuals who benefit from 14(c) and work centers that are designed to accommodate their specific needs and abilities.

“…most coverage of this bill has only mentioned the increase in the minimum wage, with no mention of the effect this would have on people who would be unhireable under competitive integrated employment. Once again, the most vulnerable Americans are suffering discrimination at the hands of agencies that are supposed to protect their interests, and by the work of advocates and self-advocates who focus only on one segment of the community of people with intellectual disabilities.” 

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The controversy over sub-minimum wage certificates comes up again and again as a disability rights issue, framed as blatant discrimination against people with disabilities. The assumption among many advocates is that all people with disabilities are capable of integrated, competitive employment, as long as they have the supports they need to be successful. The fallacy here is that there are, indeed, people whose disabilities prevent them from working in competitive employment, because they are unable to tolerate a competitive work environment or to keep up with other workers.

This is a fact, not a reflection on people with disabilities in general or an assertion that they are somehow less worthy than people without disabilities. To the contrary, the right to appropriate services applies to all, even to those who need a specialized facility-based work program that pays less than minimum wage. For the most part, these workers receive additional government benefits in the form of living supports, Medicaid health insurance, Medicaid waiver services, and often additional social services offered by their employers or other agencies.

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This is from a DD news blogpost from 2014:

"Workers with disabilities who are able to engage in competitive employment, with or without supports, should not be exploited in workplaces that profit off their labor but pay the workers sub minimum wages. The special wage certificates that are now issued, however, 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. To eliminate the special certificates would  in effect also eliminate this important option for people who can and want to work but would otherwise be unlikely to obtain employment in regular competitive workplaces. In the opinion of many who benefit from these programs, too little consideration has been given to what will happen to these people other than many more of them will sit at home with nothing to do.

"Efforts to increase competitive employment for people with DD in integrated settings should not be expected to offset the need for specialized employment services based on the severity and nature of an individual's disability. 'Robbing Peter to pay Paul' (or in this case, closing sheltered workshops to fund more supported employment), is never a good policy decision when it comes to people with needs as diverse as those with developmental disabilities."

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ACCSES is an organization representing providers of employment services. This is an editorial from their July 22, 2019 newsletter: 

"The Raise the Wage Act (H.R. 582) passed the House last week 231-199. This bill if enacted, would kill jobs for people with disabilities by getting rid of the special wage certificate under Section 14(c) of the Fair Labor Standards Act, which will have a significant impact on opportunities for people with the most significant disabilities. On July 8, 2019, the Congressional Budget Office issued a report on the effects of an increase in the minimum wage on employment and family income, in which it found that the $15.00 federal minimum wage would benefit 17 million workers, and cut at least 1.3 million jobs. (The CBO estimates 125,000 people being served under 14(c) certificates.) Section 14(c) certificates are an important tool in the employment toolbox. Do not let Congress take away jobs for people with disabilities. Your Members of Congress are getting ready to head home for their August recess. Contact them today and invite them to tour your locations to see the devastating effect passing this bill into law would have on people with disabilities. It is vital that Members of Congress have a great understanding of the important role community rehabilitation programs play when setting disability policy. "

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See also:

"House Votes To End Subminimum Wage" by Michelle Diament, July 19, 2019, Disability Scoop
“…many families have opposed such legislation arguing that subminimum wage employment gives people with more severe disabilities who may not be able to succeed in typical jobs a sense of purpose and an opportunity to contribute.”

"Supported Employment : Is it Cost Effective for People with Severe Disabilities?", The DD News Blog, 2/15/16 

"Information on Sub-minimum wages for people with disabilities and appeal rights..." , The DD News Blog, 3/30/16

Abelone Kelley July 26, 2019 0