In 1938, the U.S. government offered a proposition for manufacturers that were not inclined to hire workers with disabilities: If the option for a “subminimum wage” were available, then would those businesses consider opening their doors for those workers? This issue is what brought about the implementation of Section 14(c) in the Fair Labor Standards Act, which legally allows employers to pay laborers with disabilities considerably below the federal minimum wage, as long as those employers acquire the proper certification. Even today, employees with disabilities can be paid as little as 11¢ an hour under the provisions of 14(c). This policy has led to several abuses throughout the years, illustrated vividly in cases like “The Men of Atalissa” who worked under horrific conditions and severe malnutrition in a ramshackle schoolhouse for over 30 years; these men were only released in 2009 when the schoolhouse finally shut down (Golde, 2016).
With such human rights violations occurring under this law, how has Section 14(c) survived for as long as it has? The longstanding pretense is that certain disabilities, whether physical or intellectual or otherwise, mean that the employees in question will work at a lower rate of productivity than their colleagues without disabilities. Of course, this perspective is based on faulty assumptions about disability in general; it reminds us that we need to further mediate conversations between employers and their prospective employees with disabilities.
Another fact to keep in mind is that, when 14(c) evolved in the ‘30s, the minuscule level of pay was intended as “training wages.” So many of our understandings about 14(c) itself are in error. Several resolutions have arisen at U.S. Congress meetings, but thus far all of them have been ignored or simply denied. However, there are monumental changes in progress on the state level: Alaska, California, Colorado, Delaware, Hawaii, Maine, Maryland, New Hampshire, Oregon, Rhode Island, South Carolina, Tennessee, and Washington have all managed to repeal subminimum wage for workers with disabilities, with other states striving to do the same.
In terms of our own state, there are three major companies in New Mexico with legal certificates for paying subminimum wages: Zuni Entrepreneurial Enterprises, Inc. (ZEE), Adelante Development Center, Inc., and CARC, Inc. (New Mexico Advisory Committee, 2021) Adelante, for example, has encountered state lawsuits for paying their employees as little as 18¢ an hour. New Mexico has a motion to repeal subminimum wage currently scheduled for an upcoming legislative session, and you can add your support by signing our petition at https://chng.it/mvnptZ7v and sharing it with whomever you can. We are very close to following the example of several states that have already done away with the backwards practices of 14(c).
We at UNTAPPED strongly believe that laws permitting subminimum wage are unjust. Expecting individuals with disabilities to survive with such scant compensation, not to mention businesses being legally protected to pay only pennies an hour, is outrageous. There are, of course, several barriers to overcome in that area; some believe that legally forbidding the payment of subminimum wages would result in no job prospects at all for workers with disabilities (Albuquerque Journal Editorial Board, 2021). The truth is that convincing businesses across the state and around the U.S. will be a very complex task. But overturning these laws will not lead to the dubious results that many fear. Competitive integrated employment is a viable option for workers with disabilities to acquire wages above the federal minimum and be more fully included in work environments alongside workers without disabilities (New Mexico Advisory Committee, 2021). In recent years, the Workplace Innovation and Opportunity Act has provided legal avenues for workers with disabilities to have access to competitive integrated employment and thus further avoid any kind of subminimum wage situation. With all of these efforts being promoted, we have a clear opportunity to secure a brighter future in the workplace for individuals with disabilities.
Until the next story,
Aaron Kelly Anderson
a.k.a. “A PhD on the Spectrum”
References
Albuquerque Journal Editorial Board. (2021, March 10). Editorial: Two wrongheaded bills target disabled, high school workers. Albuquerque Journal. https://www.abqjournal.com/2367848/two-wrongheaded-bills-target-disabled-high-school-workers.html
Golde, T. (2016). Pennies an hour: Was this really the intent behind § 14(c) of the Fair Labor Standards Act? A note calling for a system change to an otherwise broken system. Texas Tech Law Review, 48, 459-503.
New Mexico Advisory Committee to the U.S. Commission on Civil Rights. (2021). Advisory memorandum: Wage theft & subminimum wages. https://www.usccr.gov/files/2021/04-15-NM-Advisory-Memorandum-Wages.pdf
