A controversial law allowing workers with disabilities to be paid a sub-minimum wage is under attack in a new report by a federal agency.
“Jerry D’Agostino had a job but couldn’t afford a few things he wanted to do: a meal out once a week, go to the movies, attend Comic-Con. He was working alongside other people with disabilities at a center in Rhode Island, doing what he calls “benchwork” — rote tasks like fitting rings into heating tubes, packaging ice packs, assembling boxes for jewelry.
‘If I remember correctly, I remember doing a lot of it, and my first paycheck was only $12,’ says D’Agostino, who now works as a supermarket courtesy clerk. ‘I just questioned myself as, you know, I really don’t want to, I really don’t want to keep doing benchwork for my whole life.’
D’Agostino was making so little because, since 1938, U.S. labor law has carved out a rule for some people with disabilities, saying they can be paid less than minimum wage. The New Deal-era law was intended to encourage employment of more people. But a new report by the U.S. Commission on Civil Rights says the exemption should be phased out, because it’s been trapping workers in ‘exploitative and discriminatory’ job programs.
This call by a top federal civil rights watchdog is a major milestone in the difficult history of so-called sheltered workshops and other ‘subminimum-wage’ employers. They pay tens of thousands of people with disabilities an average wage of $3.34 a hour, the report says, for tasks like bagging newspapers, shredding papers by hand or wrapping silverware in napkins. They calculate wages by regularly timing how long it takes each worker to complete their task and comparing that productivity to an experienced worker without disabilities.
The fate of these work programs has been contentious. Disability-rights advocates say the programs limit the workers’ potential while using them as cheap labor. But some workers’ families and the organizations themselves argue that eliminating them would threaten the well-being of people who are happy to be there and take away their choices.
‘So far, in the 82 years of its existence, the program has not been very successful in helping people to become employed outside of the subminimum wage context, so it appears that it doesn’t work,’ Catherine Lhamon, who chairs the civil rights commission, told NPR.
‘I was ashamed of the ways that we have operated, now over eight decades, a federal assumption that people with disabilities are less capable of full employment than people without disabilities,’ she said.
A lot of data is missing about subminimum-wage job programs. Some of them are called sheltered workshops because they keep people with disabilities in a separate cluster. Estimates for how many people they employ range from over 100,000 to quadruple that, across almost all states. The employers — commonly nonprofits that provide other services beyond work — receive state and federal money to support these jobs. Many of them have government contracts.
‘Categorically, under [the exemption] people with disabilities being paid a subminimum wage are not granted the same protections, nor are they offered the same opportunities that are available to people working at the minimum wage or above,’ said Thursday’s report, approved by the commission’s Democratic majority, with Republican and Independent members abstaining or dissenting.
After months of studying the program and its oversight, the federal agency now recommends that Congress repeal the exemption, Section 14(c) of the Fair Labor Standards Act, to end subminimum wages for people with disabilities — and to phase out sheltered workshops over time. Instead, the commission wants the government to shift its funding to get more people assistance and support to work in the community, for regular wages.
Most of the workers in subminimum-wage programs now are people who have intellectual and developmental disabilities. Some of their families helped workshops flood the commission with a record number of comments in support of sheltered workshops. Many noted concern for people with “severe” disabilities and said they wanted the programs to remain an option.
‘We have chosen a workshop … with our son’s best interests at heart. Any suggestion that we would allow him to be taken advantage of or discriminated against is an insult,’ Linda Hau, the mother of a sheltered-workshop worker from Wisconsin, testified before the commission in November. She said the workshop allowed people ‘to work in an environment where they feel safe, loved and accepted, while having the pride of a paying job.'”
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