Raising the federal minimum wage has been a prominent component of many modern Democratic campaigns, yet there has been little national discussion on the legality of the subminimum wage, which has disproportionately impacted people with disabilities. During the 1930s, FDR passed the Fair Labor Standard Act as part of the New Deal, which established the first federal minimum wage as 25 cents per hour, limited the workweek to 44 hours, and banned child labor (U.S. Department of Labor). The good intentions of this act are obvious, as its aim was to protect workers from labor abuses and stimulate economic growth. However, section 14(c) of this act offers a significant caveat: the US Secretary of Labor may grant certificates allowing for the employment of people with disabilities at a rate below the federal minimum wage so that their employment opportunities are not reduced (Wage and Hour Division 2008). While this provision may seem equally good-intentioned and fairly logical at a surface level, modern uses of this provision have been poorly regulated and abused by employers, further contributing to the discrimination that Americans with disabilities face.
The negative implications of section 14(c) of the FLSA are twofold: the provision limits the career opportunities of people with disabilities, and it allows employers to profit disproportionately more from their labor. A lack of government oversight within this program has resulted in minimal support for employees with disabilities to integrate into the competitive workforce, perpetuating the cycle of discrimination by neglect (Kent Law). However, this is not the case in all states–several have already phased out this practice, finding it to be antiquated and ineffective. Within these phased-out states, it has been shown that there is no categorical difference between employees working for competitive wages and those working for subminimum wages, further emphasizing the necessity for wage equality (Diament 2020). The use of these certificates also often results in the segregation of disabled employees from their non-disabled counterparts; due to the nature of the law, it becomes more economically feasible for employers to create separate work-centers and workshops for those with disabilities. Not only does this isolate people with disabilities from the wider community on an individual level, but it contributes further to the negative social stigma associated with their capabilities.
Unfortunately, despite the bipartisan support to repeal section 14(c) of the Fair Labor Standard Act, it still stands today. It is overwhelmingly evident that further efforts must be taken to protect American workers with disabilities, as this is far from the only law that enables systemic discrimination against these individuals. However, even recognizing the faults within these antiquated laws and realizing the necessity for change are important first steps toward equality.
In accordance with the 2020 Statutory Report by the US Commission on Civil Rights, I recommend that section 14(c) is repealed with a planned phase-out period, allowing employers to properly adjust to the transition. Within this transition, however, the DOJ Civil Rights Division or the Department of Labor should offer stringent oversight, ensuring greater accountability among those currently holding certificates. It must also be noted that federal funding for employment support services should increase to account for this legal transition; encouraging the use of job coaches, peer support, and specialized training for people with disabilities are several mechanisms to consider. This method is also approved by the majority of Americans with disabilities, who have been shown to be adamantly against the subminimum wage program.
Isabella Payne
Isabella Payne is a rising senior at Temple University. She is double majoring in political science and history, and she has volunteered extensively for community, political, and governmental organizations including: Camphill Kimberton Hills, NextGen America, Innabah Camp & Retreat Center, the Biden Campaign, and the Disability Rights Section of the Department of Justice. After graduation, she plans to attend law school with a focus on disability rights law.
Bibliography
“Coming out of the Shadows of Sheltered Workshops and Subminimum Wage.” Kent Law. Accessed July 20, 2021. https://www.kentlaw.iit.edu/sites/ck/files/public/institutes-centers/ilw/Coming%20Out%20of%20the%20Shadows-Jillian%20Guilfoyle.pdf.
Diament, Michelle. “Government Agency Recommends Ending Subminimum Wage.” Disability Scoop. Last modified September 8, 2020. Accessed July 20, 2021. https://www.disabilityscoop.com/2020/09/18/government-agency-recommends-ending-subminimum-wage/28977/.
“Fact Sheet #39: The Employment of Workers with Disabilities at Subminimum Wages.” Wage and Hour Division. Last modified July 2008. Accessed July 20, 2021. https://www.dol.gov/agencies/whd/fact-sheets/39-14c-subminimum-wage.
Grossman, Jonathan. “Fair Labor Standards Act of 1938: Maximum Struggle for a Minimum Wage.” U.S. Department of Labor. Accessed July 20, 2021. https://www.dol.gov/general/aboutdol/history/flsa1938.