It’s been a time this week, so how about something nice? The Department of Labor has issued a new proposed rule to end the sub-minimum wage for disabled people, a campaign promise old handsome Joe Biden made. As things are now, it is legal to pay disabled employees, called “substandard workers,” less than a dollar per hour, an exception to the Fair Labor Standards Act that’s been in place since the minimum wage was established in 1938. Half of these employees make less than $3.50 an hour, and some make as little as 22 cents, which would not even buy a gumball. (Regular minimum wage is $7.25 an hour, which is pathetic enough.)
The less-than-minimum wage can only be paid to entities holding a 14(c) certificate approved by the DOL, and the certificates must be renewed every two years. In 2020 the US Commission on Civil Rights released a report stating that sub-minimum wage violates the civil rights of people with disabilities, and the Department of Justice has sued in Rhode Island and Oregon and successfully ended the practice there. And 17 states have taken action to either eliminate the use of sub-minimum wage, or are in the process of actively phasing it out. But at least 37,106 workers still labor under those conditions. And at least a third of the employers with the certificates have screwed over their disabled employees, according to the Washington Post; between October 2009 and September 2023, the Labor Department ordered employers to pay $20.2 million in back wages for pay and other violations. So OHJB would like to have it all phased out, nationwide, and to stop issuing new certificates.
Buuut there are problems, of course. Thanks to that Chevron ruling from the Supreme Court, employers could challenge the rule change in court, because federal agencies aren’t considered experts any more, no matter how many years of experience or studies were involved. Or Congress could halt implementation of the rule, or enshrine it, and given the makeup of the incoming House and Senate and the Republican fondness for destroying all progress, you can probably guess which of those two options is more likely. Also Congress already tried just last year to do this, and failed. Now with an incoming president who said that maybe people with disabilities should “just die,” the chances of him smothering the rule change in its crib would seem to be high.
There is also the argument that without such a rule, some employers would simply not employ disabled people at all, that employing them in any way is an act of charity, and making 25 cents an hour is better than zero. But the data seems to show that not to be the case. A study by the Association of People Supporting Employment First found that when states shut down their sub-minimum wage programs, employment rates for adults with cognitive disabilities actually increased in most states, and in some states by double digits ahead of the employment rate for non-disabled people. Which sure makes it sound like overall disabled people are much more employable and being more exploited than the program gives them credit for.
And while That Man could kill the rule and talk shit all he wants to, he still can’t tell individual states what to do. Dozens of disability-rights groups have called for an end to the practice, which they say is “demeaning to people with disabilities, ripe for exploitation, diverts resources from other disability employment efforts and fails to open doors to other opportunities.” If disability advocates say the program isn’t what they want, and the data shows the program is actually holding disabled people back and exploiting them a lot of the time, and a Department of Labor review led them to recommend ending the program, well, maybe it is time to end the program, ya think?
[New America/ Washington Post archive link/ APSE/ The American Association of People with Disabilities study]
