In the monthly post I published last week, I wrote about how James and his class went on a field trip to a café that specifically hires employees with intellectual and developmental disabilities. As I was writing about that experience, I was reminded of a news story I saw many years ago about how companies can legally pay employees with disabilities less than minimum wage. I had always thought that the minimum wage was just that, the minimum amount an employer could pay an employee. Yes, I was aware that there were certain exceptions where an employer didn’t have to pay someone minimum wage. Employees that earn tips, waiters and waitresses for example, do not need to be paid minimum wage, as long as the hourly wage that they are paid plus their tips is equivalent to minimum wage. But for regular hourly employees, I just assumed that they were all paid at least minimum wage. It wasn’t until I watched the news story that I realized my assumption was wrong.
Thanks to the power of the internet, I was able to find the news clip that I am talking about, so you can watch it for yourself. Please take ten minutes to watch it, and I will share my thoughts below.
So how do you feel after watching that? The first time I saw it many years ago I remember being a little disgusted that workers with disabilities were being exploited because federal law allowed it. I didn’t spend too much time dwelling on it though, mainly because James was only three or four years old at the time…far from being old enough to work.
Fast forward ten or eleven years, James is now 14 and old enough to legally work, although we know that he will never be able to, so this still doesn’t affect him. He does, however, have classmates that do have the mental and physical capacity to work. And some of them do.
I am going to back up for a minute here to describe the classroom environment that James is in, because I’m not sure if this is the typical special needs high school classroom.
In January of last year, when James was still in junior high, Stacy and spent an hour or so in the high school classroom that James would be going into that fall. We were really nervous about him leaving the elementary school district and transitioning to a new district with new teachers and therapists that did not know him at all, and wanted to get an idea of what things were going to be like in this new environment.
We were very pleased with what we saw in the brief time that we were in the classroom and learned a few things that we didn’t know. One of those things is that James can be in high school until he turns 22. We just assumed that he would be in high school for four years like everyone else, and graduate when he’s 18. The US Department of Education’s Individuals with Disabilities Education Act (IDEA) “makes available a free appropriate public education to eligible children with disabilities throughout the nation and ensures special education and related services to those children [through the age of 21].” Some states, including ours, extended the age limit “through the end of the school year in which they turn 22, rather than leave school the day they turn 22.” This means that James’ classroom has students between the ages of 14 and 22 with various disabilities and abilities. Some of them are similar to James and need around-the-clock care and more than likely will never be able to work. Others, however, have enough mental and physical ability to join the workforce.
Another thing we learned during our classroom visit in was that they don’t follow a typical academic program. Sure, there’s some academic work, but there’s also a strong focus on life skills so that they can become contributing members of society. There’s a small kitchen inside their classroom where they learn how to cook and bake. They have a cart that they push around the school selling coffee and donuts to teachers and staff, which teaches them how to sell, count money, and make change. They go on field trips to stores to learn how to find the items that they need, what the prices of those items are, and how to pay for them. A month ago, they went to a café whose mission is to “offer craft food and beverages prepared and served by employees 22 and older with intellectual and developmental disabilities.”
In addition to all the things they do at school, they also have a work-study program where students spend part of the school day in the classroom, and the remainder of it at a job. This helps them get real work experience while still going to school. When Stacy and I went to the classroom visit in January of last year, one of the students reminded the teacher that she had to leave early because she had to go to work. I couldn’t see her face because we were sitting on the other side of the room, but by the tone of her voice, I could tell that she was excited to go to work.
I remember thinking how cool that was. Here was a girl with an obvious mental handicap who was looking forward to going to work. It could have been because she would rather be working and making a little bit of money for herself than be in school. Or maybe it gave her a sense of accomplishment…she didn’t let her disabilities get in the way of her contributing to society. Or maybe she just really enjoyed the work she was doing. I guess her reasons really don’t matter. What matters is that she was happy to go to work. How many of us can honestly say the same thing? There have been several studies and polls that show that around 50% of American workers are unhappy with their jobs.
Getting back to the video above, I wondered if this loophole that allowed employers to pay disabled workers less than minimum wage still existed, and sadly it does. The federal minimum wage at the time the video was filmed in 2013 was $7.25 per hour. Eleven years later, in 2024, it is still $7.25 per hour. Really? According to the Department of Labor’s Wages and the Fair Labor Standards Act webpage, the minimum wage has been $7.25 an hour since July 24, 2009. How does someone survive on $7.25 an hour in 2024? That’s a question beyond the scope of this post. What is important here, and the reason I wanted to write this is that “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 quoted link above came from the Wage and Hourly Division of the US Department of Labor’s Fact Sheet #39: The Employment of Workers with Disabilities at Subminimum Wages. As I was reading through that fact sheet, I noticed that there is not a minimum amount given for subminimum wages. The Commensurate Wage Rates section states that:
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.
I have always believed that employees in the same role, with the same skillset, should be paid the same regardless of their gender or the color of their skin. I never thought about those with disabilities until recently. If you were to ask me if I think that those with disabilities should be paid the same rate as those without a disability, I would say it depends. If an employee with a disability can perform the job duties at the same level as a coworker without disabilities, then yes, they should be paid the same. If not, then they should be paid less. But how much less? And who decides how much less?
If I am understanding that first sentence under 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…”, if an employee with a disability is 50% as productive as a non-disabled employee, they should be paid 50% of what that non-disabled employee makes, right? So, let’s say that the non-disabled employee makes minimum wage, $7.25 per hour. That would mean that the employee with disabilities would make $3.68 per hour.
I don’t know how people live on just $7.25 an hour in 2024, especially with inflation the way it has been this past year or so. How do we expect someone with a disability to live on less than that? There is no minimum amount given by the US Department of Labor for subminimum wages, so an employer could pay an employee with a disability whatever amount they wanted. When I was looking at the website for Gerry’s Café that James and his class visited last month, it says that “80% of adults with disabilities are unemployed.” I wonder if that number is so high because companies don’t want to hire people with disabilities, even though the Americans with Disabilities Act states that “employers must provide people with disabilities an equal opportunity to benefit from the employment-related opportunities available to others. This includes things like recruitment, hiring, promotions, training, pay, and social activities.” Or could the reason that the unemployment rate is so high for those with disabilities be because they don’t want to work for the subminimum wage that they are offered?
Everything I have shared so far has been based on federal laws, which are terribly antiquated. But what about the states? Have they done anything to improve employment for those with disabilities? Fortunately, many of them have, and while I would love to discuss what the various states are doing, that just wouldn’t be possible for me to do. I will include some links below if you’d like to do some further reading about what the states, and the federal government, are doing to improve wages for those with disabilities. What I will say here is that according to an article posted on the website of the National Conference of State Legislatures that was last updated this past September, “16 states have eliminated subminimum wages for people with disabilities. Four of these did so in the last two years alone. Rhode Island, South Carolina, and Tennessee all eliminated subminimum wages in 2022. Virginia joined them in 2023, and six additional states introduced legislation in the 2022-23 session.”
We are making progress, albeit slowly. It may go faster if the federal government would eliminate subminimum wages for disabled workers, but I don’t see that happening anytime soon. I mean they haven’t updated the minimum wage since 2009, and Fact Sheet #39: The Employment of Workers with Disabilities at Subminimum Wages on the US Department of Labor’s website was last revised in July 2008. Let’s hope that the remainder of the states that have yet to address subminimum wages for disabled workers do so soon so that we don’t need to wait on a change to federal law.
Further Reading:
US Department of Labor: Workers with Disabilities Resources
Americans with Disabilities Act (ADA)
Equal Employment Opportunity Commission (EEOC) Disability-Related Resources
Association of People Supporting Employment First (APSE): 2023 State Legislative Watch, May 2023
