Written Testimony for the House Education and the Workforce, Workforce Protections Subcommittee Hearing

The Fair Labor Standards Act: Is It Meeting the Needs of the Twenty-First Century Workplace?

July 14, 2011

As the nonprofit membership organization for the federally mandated Protection and Advocacy Systems and Client Assistance Programs for people with disabilities, the announcement of a hearing to examine aspects of the Fair Labor Standards Act (FLSA) and whether the FLSA is meeting the needs of the Twenty-First Century Workplace sparked our interest.  We write to bring attention to Section 14(c) of the FLSA, which reflects an archaic and outdated view of the ability of people with disabilities to be competitively employed in integrated settings in the United States.

By way of background, when the Fair Labor Standards Act (FLSA) was passed in 1938, it created a special exemption authorizing employers to pay workers with disabilities wages that were significantly lower than the minimum wage.   Congress originally created these wage provisions to encourage the employment of veterans with disabilities in a manufacturing-centered economy.  However, even with the advent of new assistive technologies, access to education and job training systems, and employment supports, hundreds of thousands of people with disabilities still receive significantly less than the minimum wage because of the 14(c) provision.

In its January 2011 report, Segregated & Exploited: A Call to Action!, NDRN documented the risks of exploitation and abuse that come with segregated or subminimum wage settings.  This report discussed case studies of people with disabilities who had been paid extremely low wages for years, with little review or help providing services for people to leave sheltered workshops or subminimum wage positions.  The report is available here.

Subminimum wages allowed by Section 14(c), and the segregated work settings that tend to accompany these wages, limit the ability of people with disabilities to become independent, self-sufficient members of the community.  Employment options within segregated workshops are unskilled, low-wage jobs with few, if any, benefits or opportunities for advancement.  Consistent isolation of people with disabilities from people without disabilities hinders the proper development of socialization skills and self-esteem.  As the disability community has long understood, integration leads to increased satisfaction with their living and working arrangements and increased overall happiness, as well as improved adaptive behavior skills.  

To bring the workplace and the FLSA into the 21st Century and help create opportunities for competitive integrated employment for people with disabilities, NDRN supports the removal of Section 14(c) from the FLSA.  NDRN also supports the increased use of supported and customized employment, based on an “employment first” model.  In such a model, vocational rehabilitation agencies and education officials working on transitioning of people with disabilities into employment focus first on finding the person an appropriate job, and then finding the services and supports necessary to make that employment a reality.  Customized employment involves individualizing the relationship between employees and employers in a way that meets the needs of both, based on both the strengths and interests of the employee and on the needs of the employer.  

Examples of the successful use of customized employment services to provide competitive employment to people with disabilities, at competitive wages, exist throughout the country.  The Georgia Advocacy Office (the Georgia Protection and Advocacy agency) has worked with vocational rehabilitation agencies and employers to develop demonstrations of successful customized employment for people with disabilities.  The State of Washington has also developed a supported employment program, and has established customized employment services as the primary use of day program and employment funds within the State.  

These examples show that there exists another way to provide employment for people with disabilities other than the reliance on section 14(c).