By Marissa Ditkowsky
The Raise the Wage Act was introduced in the House of Representatives on May 25, 2017.[1] Although the primary purpose of the bill is to raise the minimum wage to $15, the bill also addresses the allowance of employers to pay workers with disabilities subminimum wages.[2] The Fair Labor Standards Act currently allows employers to pay employees with disabilities “whose earning or productive capacity is impaired by age, physical or mental deficiency, or injury” wages below the minimum wage by applying for special certificates.[3] However, in reality, this exception has allowed for the existence of “sheltered workshops,” which employ people with intellectual and developmental disabilities to perform manual labor while paying employees as low as less than one dollar per hour.[4]
The Raise the Wage Act would increase wages for workers in employment establishments with a special certificate gradually to $12.25 per hour five years after the passage of the act.[5] As of the date of passage, no new certificates could be issued to any employer that had not already received a special certificate prior to the passage date.[6] As of six years after the Act would take effect, all certificates would expire and would have no legal effect.[7]
Proponents of sheltered workshops and the subminimum wage argue that individuals with disabilities will likely receive no wages, and will face obstacles in general market employment, without this option.[8] However, other statutes and case law do exist to prohibit employer discrimination and require reasonable accommodations in the workplace.
The Americans with Disabilities Act of 1990 provides that, “No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”[9] Discrimination against qualified employees with disabilities includes several types of conduct, one of which is:
not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity; or . . . denying employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability, if such denial is based on the need of such covered entity to make reasonable accommodation to the physical or mental impairments of the employee or applicant.[10]
The one caveat is that the individual must still be qualified, which means “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.”[11] It would seem obvious, without consideration of ableism or misconceptions about disability, individuals with intellectual disabilities could perform essential job functions of manual labor akin to those of sheltered workshops, which these individuals are already conducting.
In regard to any employers that receive federal financial assistance, the Section 504 of the Rehabilitation Act of 1973 had already prohibited such discrimination:
No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.[12]
Settlements to phase out sheltered workshops have also relied on Olmstead v. L.C., a landmark Supreme Court decision holding that people with disabilities must be served in the most integrated setting possible.[13]Although Olmstead was based on a Title II claim, and employment is under Title I, Olmstead’s argument has been applied to advocate for bringing individuals with disabilities out of segregated work settings into jobs within the community.[14]
Although these arguments are compelling, a statutory amendment to the subminimum wage exception for employees with disabilities would more directly threaten its application, which expands beyond just sheltered workshops.
The Raise the Wage Act, however, would not immediately raise wages of individuals with disabilities to the minimum wage.[15] Raises would gradually increase by $2 for five years, starting at $4.25 after one year.[16] Additionally, certificates would not be phased out until six years after the Act’s passage.[17] This implementation procedure is certainly pragmatic, but it takes far too long to increase to a wage that is even remotely livable. Additionally, it should not take seven years to sunset the certificates. It is unclear why such business would need such an ample amount of time. Although passing the Raise the Wage Act would be preferable to maintaining the status quo, the bill would not reach as far as necessary to make up for the years of paying employees with disabilities pennies on the dollar for comparable work.
The bill was referred to the House Committee on Education and the Workforce, and currently has 166 cosponsors.[18] However, the bill has seen minimal action.[19] There is a high probability that this bill will die in the House of this Congress, particularly given the intent of the bill to raise the minimum wage to $15 per hour. Therefore, the fate of workers with disabilities is likely to remain unchanged.
[1] H.R. 15 – Raise the Wage Act, Congress.gov (last visited Sept. 4, 2018), https://www.congress.gov/bill/115th-congress/house-bill/15/.
[2] See 29 U.S.C. § 214(c)(1); Raise the Wage Act of 2017, H.R. 15, 115th Cong. § 6 (1st Sess. 2017).
[4] Lydia DePillis, Disabled People are Allowed to Work for Pennies Per Hour – but Maybe not for Much Longer, Wash. Post (Feb. 12, 2016), https://www.washingtonpost.com/news/wonk/wp/2016/02/12/disabled-people-are-allowed-to-work-for-pennies-per-hour-but-maybe-not-for-much-longer/?utm_term=.a0562f1c6226.
[5] Raise the Wage Act of 2017, H.R. 15, 115th Cong. § 6(a)(1)(A)(V) (1st Sess. 2017).
[6] Raise the Wage Act of 2017, H.R. 15, 115th Cong. § 6(a)(6) (1st Sess. 2017).
[7] Raise the Wage Act of 2017, H.R. 15, 115th Cong. § 6(a)(7), 6(a)(1)(A)(VI) (1st Sess. 2017).
[8] See DePillis, supra note 4.
[9] Americans with Disabilities Act, 42 U.S.C. § 12112(a) (2018).
[10] Americans with Disabilities Act, 42 U.S.C. § 12112(b)(5).
[11] Americans with Disabilities Act, 42 U.S.C. § 12111(8).
[12] Rehabilitation Act of 1973, 29 U.S.C. § 794(a) (2018).
[13] See Olmstead v. L.C., 527 U.S. 581, 597-98 (1999); Office of Public Affairs, Department of Justice Reaches Landmark Americans with Disabilities Act Settlement Agreement with Rhode Island, U.S. Dep’t Just. (Apr. 8, 2014), https://www.justice.gov/opa/pr/department-justice-reaches-landmark-americans-disabilities-act-settlement-agreement-rhode.
[14] See Olmstead, 527 U.S. at 581 (1999); see also Office of Public Affairs, supra note 13.
[15] See Raise the Wage Act of 2017, H.R. 15, 115th Cong. § 6(a)(1)(A) (1st Sess. 2017).
[17] See Raise the Wage Act of 2017, H.R. 15, 115th Cong. § 6(a)(1)(A)(VI), 6(a)(7) (1st Sess. 2017).
[18] H.R. 15 – Raise the Wage Act, Congress.gov (last visited Sept. 4, 2018), https://www.congress.gov/bill/115th-congress/house-bill/15/.
[19] H.R. 15 – Raise the Wage Act, Congress.gov (last visited Sept. 4, 2018), https://www.congress.gov/bill/115th-congress/house-bill/15/.