The Fair Labor Standards Act (FLSA)

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When did it all start?

It all started with the The Fair Labor Standards Act, or FLSA, passed in 1938. What this did, it allowed for employers/provider, under special circumstances, to pay people with physical and mental disabilities a wage floor of 75% of the federal minimum wage. This wage floor was adjusted in 1966 to 50%. In 1986 the wage floor was removed completely, so there was no lower limit to what a person with a physical or mental disability could be paid Today, many people with disabilities are being paid below $0.50 on the hour.  

 

How does it work? If you have the average wage for a particular job—say, $10.00 an hour—and that job is filled by a person who is not disabled, then under the 14(c) certification through the FLSA, you can hire a person with a disability and pay them less based on their productivity. For example, if the person with a disability is only 40% as productive as someone without a disability, their pay can be adjusted accordingly. Let’s say the task involves packing boxes, and the average worker can pack 1,000 boxes in one hour. The person with a disability might only pack 400 boxes in that same hour, which is 40% of the typical output. So, instead of paying them $10.00 an hour, you could pay only 40% of that—$4.00 an hour—based on their productivity. 

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There are many ways to measure productivity and it can get more complex, but for simplicity’s sake, that’s how it works. No other group of workers is measured by their productivity in this way and paid less than their coworkers.

 

What did it do? Overall, this federal rule allowed for discrimination of people with disabilities. It wasn't the intent, but it did allow for it. 

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Why Is This a Big Deal?

Many people think that paying someone less just because they have a disability is a civil rights violation. They argue that all workers should get paid a fair wage for their work, no matter what. Some believe that this practice makes it seem like people with disabilities can’t do valuable work, which isn’t true.

 

On the other side of the argument, some believe that certain people with disabilities are too severely impacted to be productive or work in the community. They argue that the current pay is sufficient and that these people should not be paid at least minimum wage in a sheltered work center. However, data from states that have already transitioned or are in the process of transitioning do not support this claim.

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In recent years, there has been increased scrutiny of these wage practices. The Government of Accountability Office (GAO)                                 highlights that in some cases, workers with disabilities are paid alarmingly low wages--sometimes as low as $0.42 per hour. This has raised serious concerns about whether 14(c) certificates should be abolished entirely.

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Legal and Legislative Responses

As a response to these concerns, states and advocacy groups are pushing for changes to the law. The Americans with Disabilities Act (ADA), passed in 1990, aims to protect people with disabilities from discrimination in employment, but it doesn't stop the 14(c) certificates from existing. 

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Advocates for disability rights are calling for the repeal of 14(c) certificates and the implementation of policies that would ensure that all people with disabilities receive at least minimum wage. They believe that it’s important for everyone to be treated equally and fairly when it comes to pay.​