By: Julie Buchanan
In 2019, almost 10,000 people answered the U.S. Commission on Civil Rights’ call for comment on Section 14c of the Fair Labor Standards Act (FLSA). More than 80 years after 14c was enacted and 40 years since community integrated employment programs for people with intellectual/developmental disabilities (I/DD) first appeared across the country, there is a flurry of advocacy around 14c. Advocates are not the only ones paying attention. 14c has the attention of state and federal decision-makers. Thirteen states have passed legislation to eliminate it and five others introduced legislation to curtail it (APSE, 2023). Members of Congress and President Biden sought to end 14c with federal legislation. And, since 2019 three federal agencies have conducted extensive reviews of the program.
Section 14c allows employers to pay workers less than minimum wage if they have a disability that impairs their ability to do the job (Disability Employment TA Center, 2023). In the decades that followed its implementation, 14c grew to take on an outsized role in employment for people with disabilities. Facility-based employment, often known as sheltered workshops where workers with disabilities may earn sub minimum wage, became the prevailing employment service option for people I/DD. By 2007 there were “approximately 5,600 employers nationwide…employing approximately 425,000 individuals with disabilities at sub-minimum wage (Butterworth et al., 2007).
Modern notions of disability are worlds away from where they were when 14c was enacted. Thanks to the disability rights movement that rejected the idea that I/DD was an affliction that left people incapable of being active agents in their lives; notions like informed choice, integration, and self-determination are embedded in civil rights laws, Supreme Court case law, and public policy.
Title II of the Americans with Disabilities Act and it’s integration mandate, the U.S. Supreme Court’s 1999 decision in Olmstead v. L.C., the Workforce Innovation and Opportunity Act of 2014, and the Home and Community Based Services Settings Rule of 2014 are potentially powerful directives with significant implications for state vocational and employment programs for people with disabilities; putting restrictions on 14c and holding states accountable for providing community integrated services.
Competitive integrated employment and Section 14c: Incompatible models, committed coalitions, and a flurry of advocacy
Competitive integrated employment means a worker with disabilities is employed alongside people without disabilities; earning at least minimum wage and one that is comparable to workers without disabilities, with the same benefits as their nondisabled peers. It is the clear priority in the current statutory and legal landscape. Eliminating 14c and making CIE the preferred option in disability employment supports is a long-time goal of integrated employment advocates, while a sizeable coalition of people with disabilities, families, and 14c certificate holders rally in support of the law.
Proponents of abolishing 14c argue it violates disabled workers’ civil rights and perpetuates the myth that people with disabilities are not as valuable as people without disabilities (APSE, 2019; USCCR, 2020). The Association of People Supporting Employment First (APSE), a long-standing integrated employment advocacy organization has been calling for the end of 14c since 2009. They argue that in today’s economy, productivity is not the only consideration in determining wages; today’s employers value other qualities that people bring to the job (APSE, 2019). Discrimination based on productive capacity is only one of many arguments for eliminating 14c—
· 14c reinforces “a life poverty, segregation, and dependency on public support…”
· “We have dreams and we are tired of low expectations.”
· “Individuals…should have…supports necessary to enable them to find, keep, and succeed in careers in their communities” (USCCR, 2019).
Proponents of 14c argue that eliminating it will force workshops to close, leaving their loved ones no options for employment, and take away their power to choose facility-based employment—
· “Taking away the environment in which they thrive and feel comfortable would do more damage than increased wages would do good (USCCR, 2020; p. 91).
· “I am here because I choose to be here and because this job matters to me” (p. 92).
A deeper understanding of people with disabilities’ perspectives on employment and 14c can be found in the comments at the USCCR Public Briefing and its report, "Sub-minimum wage: Impacts on the Civil Rights of People with Disabilities.” After all, their livelihoods are central in this debate and the weight of this responsibility should stay top of mind.
The future of Section 14c
The 2016 Advisory Committee on Increasing Competitive Integrated Employment for Individuals with Disabilities and the U.S. Commission on Civil Rights in 2020 recommended repealing 14c and building capacity for CIE.
The USCCR and the U.S. Government Accountability Office found problems with oversight and monitoring of 14c. ASPE and others echoed those concerns, pointing out a lack of data collection and transparency—data on 14c workers’ wages, their production rates, and monitoring of the program. These problems with oversight are alarming. If 14c participants are expected to forfeit a right as fundamental as the right to minimum wage, especially given the discrimination and marginalization people with disabilities have experienced, federal agencies should be hyper vigilant about monitoring. In his testimony to the USCCR, Neil Romano of the National Council on Disability remarked, “we collect data on things we view as important, and historically we just don't count people with disabilities (USCCR, 2020, p. xii).
In the fall of 2023, the U.S. Department of Labor, which oversees the 14c program, announced its own review. Stakeholder listening sessions were held late in 2023 and updates will be available here.
Resources
The Association of People Supporting Employment First (ASPE) provides information on current trends and legislation related to 14c and integrated employment for people with disabilities.
Learn about the application of Olmstead in Lane v. Brown (formerly Lane v. Kitzhaber), the first Olmstead case to decide a state violated Title II of the ADA because its I/DD employment system segregated people and denied them access to integrated employment.
References
APSE. (2019). Association of people supporting employment first call to phase out 14c and subminimum wage by 2022. https://apse.org/wp-content/uploads/2019/04/APSE-14c-Documents-4-17- 19-Shorter-Version.pdf
APSE. (2022). Trends and Current Status of 14c.
https://apse.org/wp-content/uploads/2022/09/July22-APSE-14c-Update-REV.pdf
APSE. (2023) 2023 State Legislative Watch. https://apse.org/state-legislation/
Butterworth, J., Hall, A., Hoff, D., & Migliore, A. (2007). State and International Efforts to Reform
or Eliminate the Use of Sub-Minimum Wage for Persons with Disabilities. Boston (MA):
Institute for Community Inclusion, University of Massachusetts Boston.
Disability Employment TA Center. (2023). Celebrating Olmstead. Exploring the 14c report and national trends in the movement to end segregation and exploitation of people with disabilities.
Migliore, A., (2010). Sheltered Workshops. International Encyclopedia of Rehabilitation. Buffalo (NY): Center for International Rehabilitation Research Information and Exchange.
United States Commission on Civil Rights. (2019, November 15). Briefing Subminimum Wages, People with Disabilities, Open Comment Session. https://www.youtube.com/watch?v=3d3amzjF1mw
United States Commission on Civil Rights. (2020). Subminimum wages: Impacts on the civil rights of people with disabilities, 2020 statutory enforcement report. https://www.usccr.gov/files/2020/2020-09-17-Subminimum-Wages-Report.pdf
United States Department of Labor. (2021). Sub minimum wage. https://www.dol.gov/agencies/whd/special-employment
United States Government Accountability Office. (2023). Subminimum Wage Program: DOL Could Do More to Ensure Timely Oversight. https://www.gao.gov/products/gao-23-105116
