Author: Neil Romano

It's time for people with disabilities to get paid their fair share

Since when is a little discrimination with some segregation OK under the law in America?

How do you feel about some of your fellow Americans making pennies on the dollar for their work? Does American-made using underpaid workers seem patriotic? Some of our citizens are making far less than a minimum wage and it’s perfectly legal in America today — until we say, “no more.”

It happens more than most realize due to an archaic provision in the Fair Labor Standards Act called 14(c), which recently turned 80 years old.

Since 1938, 14(c) permits employers to obtain a certificate from the U.S. Department of Labor and pay people with disabilities in their workforce less than the minimum wage.

This continues for years, if not decades, and sometimes, in working conditions not subject to Occupational and Health Safety administration regulations — because they’re supposedly “training programs” and not actually jobs (though these employers often fulfill business contracts based on labor these Americans provide). Today approximately 164,000 Americans with disabilities receive sub-minimum wages.

During the almost two decades I have worked to see an end to 14(c), I’ve become increasingly convinced that we need to invest into people and not just sustain broken programs. I have visited many locations across America where 14(c) is utilized, and as a former assistant Secretary of Labor under President George W. Bush, I got an even closer look at its effect on people's lives.

While we often talk about 14(c) by the number of years it has been in place, I tend to think of it in terms of the lives that have been wasted, potential that has been lost, and the hopes and dreams of individuals that were never realized — all because of low expectations of others.

Defenders of this provision argue that workers with disabilities are not as productive and need assistance learning job skills to become more competitive in a “normal” job down the road. But its operation is far less altruistic than it may sound.

Not only do egregious abuses occasionally come to light — such as people being paid in gift cards or food rather than money, but there are also more common outcomes that should churn every American’s stomach.

Truly, in a political environment with demand for results, it is amazing that such a program persists. Without aggressive lobbying, this program would be only a memory of ineffectiveness and failure to yield a return on investment.

The Centers for Medicare and Medicaid Services states, “Prevocational services should be designed to create a path to integrated community-based employment for which an individual is compensated at or above the minimum wage…”

Nonprofit service providers holding 14(c) certificates, receiving Medicaid funds for training people for work should never be more than a stepping stone to competitive integrated employment. Yet, in a 2001 Government Accountability Office (GAO) report, only five percent of people ever left these supposed training grounds. That’s a 95-percent failure rate in mission!

What’s more, compared to alternative models with records of success, research shows 14(c) training placements yield higher costs over time per person and notably, lower wages; whereas individuals who utilized supported employment services as an alternative to 14(c) had lower costs over time per person and higher wages.

Those statistics don’t leave much room to argue the continuation of 14(c) based on results.

Letting this provision persist is a 100-percent failure rate of national policy, given our nation’s progress and goals for people with disabilities. We can no longer afford an economy that leaves an entire group of people unemployed or underutilized. And I would have to believe this broken program is abhorrent to this administration that is fighting to get Americans real work.

In 1938, there were no federally protected civil rights for people with disabilities, nor even a right to a public education. However, since that time, society and people with disabilities have come to expect far more out of their lives than past public policies allowed. And employment should be no exception.

The continuation of 14(c) says that people with disabilities are a black hole for society — that they’re not capable of doing much, that they don’t warrant investment, and that they aren’t going anywhere. A self-advocate with Down syndrome who has spoken poignantly against 14(c) said that the “sub-minimum” in “sub-minimum wages” communicates “subhuman” to people, and who wants to be thought of as subhuman?

Although I have little patience for well-paid lobbyists defending the continued practice of paying people with disabilities pennies an hour, I have great compassion for the families who have loved ones with disabilities affected by 14(c) and are scared at what changes may entail for them.

These families made choices I believe they sincerely thought were best at the time, and they should never be vilified. They should take heart seeing what is possible with a better policy. A small handful of states and a larger number of individual providers have begun making changes away from the 14(c) work model to alternative models with records of success.

Melwood, one of the largest employers of people with disabilities on the East Coast, used to be one of the many nonprofits using the 14(c) model. During a leadership change at Melwood in 2013, new President and CEO, Cari DeSantis, recognized the incompatibility of 14(c) with the organization’s vision of full inclusion of people with disabilities.

Following a three-year transition celebrated by its employees and their families, Melwood completely relinquished its 14(c) certificate in 2016, noting that the financial cost of discontinuing the discriminatory practice was not only manageable, but was also a prudent investment in its mission. Today, Melwood’s financial position is the strongest it has ever been and it is employing more people with disabilities than ever before.

Many of the fully-transitioned providers like Melwood — and families who have experienced the changes — are excited to help others do the same and have marveled at the blossoming of talent and effort of people with disabilities who are finally helped to explore their strengths and interests (rather than be relegated to piece work whether they like it or not) and transition to real jobs — just like the 14(c) program intended but has largely failed to deliver.

So long as it remains legal to pay people with disabilities less than the minimum wage, little pressure exists to invest in alternate models. If paying our fellow Americans with disabilities pennies an hour under the auspices of “training” (that seemingly never ends) continues, our federal policy message to them will remain that despite the passage of civil rights laws, despite the advancements in the education of people with disabilities, and despite our national march towards equality for all human beings, people with disabilities will never be viewed as inherently equal and deserving of life, liberty, and the pursuit of happiness.  

It’s far past time to do better than that. It’s time to phase out 14(c) of the FLSA.

Neil Romano is the chairman of the National Council on Disability.