If you’re employed, think about how productive you are at your job on a typical day. Then think about all the things that might affect your productivity from week to week, or day to day. Do you sometimes have super productive days where you can feel your to-do list shrinking? But then, you might spend a whole afternoon staring at your computer screen, stuck in writer’s block. Or, maybe you’re less productive when you haven’t gotten enough sleep, or you’re worried about a family issue, or there’s distracting construction noise. Or, if you work in sales or customer service, there are busy days and slow days.
Now, imagine that your boss randomly gives you a pop quiz. During a random hour on a random day, your productivity is measured. And then, your salary is set based on your performance during that random quiz, and once your salary is set, you can’t appeal or change it. So, if you’re tested on a slow day, or when you’re distracted, or have nothing to work on, you end up with a low salary as long as you stay in that job.
Now, one more thing. Imagine you aren’t subjected to the minimum wage. So, if your productivity is very low during that pop quiz, you might end up being paid far less than the minimum wage. Until the day you quit.
The idea of tying wages to a single “productivity” measurement seems ridiculous to those of us who have always known a minimum wage. But, it’s still a reality for some Americans with disabilities. And it’s still entirely legal.
The federal minimum wage was set up via the Fair Labor Standards Act (FLSA) in 1938. A section of that law, Section 14(c), makes an exception for employees with disabilities. Disabled workers can be paid “special wages!” (note that word special again). The Department of Labor can give 14(c) certificates to “sheltered employment” providers, organizations that hire exclusively disabled workers, usually performing menial tasks. Once an employer has an approved 14(c) certificate, if they determine that an employee is less “productive” than a typical nondisabled employee, the disabled employee can legally be paid a “subminimum” wage dependent on how well they perform on a timed productivity test, compared to a nondisabled employee. Reportedly, in extreme cases, individuals have been paid mere cents per hour.
Think again about all the factors that might hamper your productivity at work? For a disabled employee, there are many more artificial barriers that could lower productivity. One of the biggest is a poor job-person fit. A worker who hates making widgets is going to be slower doing that than doing something they love. If you ask me to sort clothing by size, and I can’t read the print labels, I’m going to be slower than a sighted worker at that specific task. But does that mean I’m worth less? That I bring less value to the workforce as a whole?
The provision of 14(c), like so many other aspects of the disability system, treats a person’s productivity as a constant. It ignores the influences of the environment and supports that could raise the productivity ceiling. And by tying productivity to earning potential, the provision also treats our worth, our value to the employer, as a constant constrained by disability.
The Department of Labor is currently taking public comments on Section 14(c) subminimum wages. Looking at the comments, the provision still has some strong supporters. Not surprisingly, the most vocal defenders of Section 14(c) are either family members of developmentally disabled adults or people who work for organizations holding 14(c) certificates. Meanwhile, the provision is strongly opposed by disability self-advocacy orgs made up of actually-disabled people.
The pro-14(c) argument goes something like this: “My relative is significantly disabled with high support needs. They can’t do X or Y, so they can’t hold a job in the competitive market. They love their job with Z agency, which has a 14(c) certificate. They like being paid, but they don’t really care how much they make. If the 14(c) exemption went away and Z agency was forced to pay minimum wage to all its workers, my relative would be out of a job and just sitting on the couch all day.”
I’d like to examine two aspects of this argument: first, the idea that sheltered employers would all be forced to shut down if they had to pay minimum wage, and second, the idea that so many people can’t hold jobs in the community.
First, there’s this fear that if disabled workers all had to earn minimum wage, their employers wouldn’t be able to afford it. While it’s impossible to know exactly how much every sheltered employer can afford to pay its workers, nonprofit agencies are required to report the salary they pay their CEOs, which can give us some sense of their overall cash flow. Currently, 19 local Goodwill affiliates hold active 14(c) certificates and pay at least one of their workers subminimum wage. Yet Goodwill, in general, pays its CEOs quite generously: in 2014, 23 Goodwill affiliates paid their CEOs at least $400,000, significantly higher than other social service charities. Notably, Goodwills receive revenue from their retail operations as well as private donations and government grants. If an agency can pay its CEO an above-average salary, certainly it can figure out how to redistribute some of its revenue toward paying fair wages.
Second, there seems to be this idea that it’s either all or nothing. Either we give disabled workers sheltered jobs with all the supports they need, but we have to pay them subminimum wages, or we just turn them out to the mainstream job market to fend for themselves without supports. Such a dichotomy is far from true. In fact, many models of supported employment exist to assist all potential workers with Job training, placement, and support on-the-job. And evidence is mounting to demonstrate that people once thought “unemployable” can succeed in jobs alongside their nondisabled peers, paying an equal wage.
For example, the Project Search program offers on-the-job training and job-seeking supports to high school seniors with disabilities. A related program, Project Search-ASD, includes supports and training specifically tailored to the challenges experienced by autistic youth. In a recent investigation, 79 youth in Virginia enrolled in Project Search-ASD during their final year of high school. The participants were all in self-contained classes with significant support needs related to autism and, often, other co-occurring medical conditions as well. During the program, the participants received on-the-job instruction while rotating through three internships. This training was supplemented with individualized job coaching and a plan to assist the youth in finding a job after graduation and receiving appropriate supports on-the-job. One year after graduation, out of the 73 youth who completed the program, 58 of them had jobs in their communities, working an average of about 20 hours per week, and all making at least $7.25 per hour (averaging around $10 per hour). The impossible becomes possible, not just for a few exceptional “high-functioning” individuals, but for a majority of youth with substantial support needs who received the right combination of supports at a critical time in life.
I can agree with the pro-14(c) commenters on one thing: Work is important to many (though not all) adults with significant disabilities. But, I believe that doing a task and getting a dollar an hour is not work. It’s glorified volunteering. And certainly, if an individual is being fed, clothed and sheltered through other means (like Social Security or family support), that individual may be perfectly content as a full-time volunteer. But, let’s call it what it is: it’s volunteering, maybe vocational training (if there’s a clear goal of transition to an actually-paying job). But getting a dollar an hour or less is not employment in my opinion.
The pro-14(c) people say it’s all about choice. And I support that. I support *informed* choice and self-determination for individuals with significant disabilities. I support having non-work social and recreational programs for individuals who want to spend time with their fellow disabled peers. I support having a range of employment options. I might even support having a few self-contained employment options where people are doing meaningful work alongside their disabled peers, with built-in supports. All I ask is that disabled workers get the same basic standard of fair treatment at work as their nondisabled counterparts: a job matched to their strengths, opportunities for professional growth, safe and sanitary working conditions. And, in 2019, let’s pay them the damn minimum wage.
Want to get involved? Comment here on the importance of fair wages. Let’s drown out the shouts of all the doubters who are so convinced of their disabled relatives’ limited potential. Let’s proclaim our hope and commitment to civil rights and self-determination for our disabled brethren.
After you comment, ask your legislators to support the Transformation to Competitive Employment Act which would phase out Section 14(c) while helping states increase job supports for disabled workers in the community.