Shannon Broderick/Laramie Daily Boomerang via AP
Project SEARCH intern Timmy Frazier works in the cafeteria of Ivinson Memorial Hospital in Laramie, Wyoming, October 10, 2017. Project SEARCH was developed as an initiative to secure competitive employment for young people with disabilities.
Last week, an extremely popular $15 minimum-wage hike was struck from President Biden’s COVID relief package, when the Senate parliamentarian decided it wouldn’t fit within budget reconciliation’s “Byrd Rule.” Progressives have been angered by one unelected bureaucrat’s decision to deny 27 million Americans a raise. But the decision also removed a provision that has received considerably less attention: the abolition of subminimum wage for disabled people.
Under regulation 14(c) of the Fair Labor Standards Act of 1938, disabled people can legally be paid pennies an hour, with little federal change since then. During the campaign, President Biden promised to phase out subminimum wage, and prior to minimum-wage changes being drowned in the Byrd-bath, he was well on his way to delivering. Unfortunately, it now appears that the Senate has given up on a straightforward $15 minimum-wage hike through the relief bill. Even worse, the alternative minimum-wage increase proposals that may get a vote later in the year leave the disability community behind.
Historically, the abolition of disabled subminimum wage has been a quietly bipartisan issue. Disability is an issue that cuts across class and political affiliation. Last year, the Transformation to Competitive Employment Act, which would have specifically phased out disabled subminimum wage, was sponsored by both leading Republican Rep. Cathy McMorris Rodgers (R-WA) and democratic socialist Rep. Alexandria Ocasio-Cortez (D-NY). There aren’t many issues they agree on, and this happens to be one. McMorris Rodgers has a son with Down syndrome, so the issue is personal for her.
However, it appears that subminimum wage, like every other issue, has become more polarized and partisan in the past few months. Freshman Rep. Madison Cawthorn (R-NC) signed on to a letter with a handful of other members of Congress to defend the practice. Ironically, Cawthorn is disabled himself. One wonders how he would feel about being paid less than minimum wage.
An alternative minimum-wage hike from Sens. Mitt Romney (R-UT) and Tom Cotton (R-AR), which would increase the minimum to $10 an hour while strengthening the E-Verify system that prevents undocumented immigrants from working, is another place where subminimum wage has become unexpectedly partisan. There are specific provisions in their proposal to preserve the ability to pay disabled people less than minimum wage. Cotton has long been an advocate for subminimum wage, but Romney’s endorsement of the idea surprised advocates I spoke to. Romney had previously been “on the fence.” Cotton and Romney represent different wings of the Republican Party, and their dual embrace of subminimum wage does not bode well for the bipartisan future of the issue.
Importantly, the fact sheet provided by Sen. Romney’s office has no column for subminimum disabled wage. That is because there is no floor to subminimum wage for disabled people. People are paid as a fraction of however long it takes a non-disabled person to do a task at top speed. Never mind the fact that non-disabled people are rarely at maximum efficiency. If most non-disabled people have an off day at work, it won’t impact their paychecks.
Disabled people in facilities called “sheltered workshops” do repetitive tasks for hours a day and are paid per piece produced. People can show up for jobs at sheltered workshops and be paid nothing at all. Some tasks performed in sheltered workshops include wrapping popsicle sticks and screwing the tops onto shampoo bottles. One man I interviewed last year for Vox, Shawn Fulton, spent 25 years grinding down bits of metal in a sheltered workshop. To this day, he has no idea what the bits of metal were for.
Disabled people under 14(c) can also be farmed out to do tasks like cleaning or trash disposal. This was the case for Ross Ryan, a man interviewed by The Atlantic last summer. “They looked down on us like we didn’t know what we were doing and we didn’t know the value of money,” he said.
Sen. Bernie Sanders (I-VT) briefly floated a “Plan B” on the minimum wage that would have taxed large companies that failed to pay their workers $15 an hour, with weak incentives for smaller businesses. Sen. Josh Hawley (R-MO) backed this alternative proposal; it was later scrapped by the Democratic leadership. But the proposal would have done nothing to address disabled subminimum wage, because it was silent about nonprofits.
Nonprofits hold the vast majority of 14(c) certificates, the federal documentation that makes payment of subminimum wage legal. Home health aides are also largely employed by nonprofits, so their already low wages would have remained stagnant, making professional caregiving employment of last resort for people with no other options.
Many parents worry about what their disabled sons and daughters will do all day, and as a society, we owe them a better answer than “nothing.”
This isn’t the first time Sen. Sanders has left the disability community behind, but it’s still a disappointing step backward from the disability plan he proposed during the Democratic primary, where he also pledged to end subminimum wage for disabled people. This would be done both through legislation and by directing the Department of Labor to stop issuing new 14(c) certificates. Sanders promised to stop giving permission for subminimum wage, an aggressive and unorthodox move that won me over. I’m both surprised and disappointed.
To be entirely fair, the abolition of subminimum wage in the Raise the Wage Act, and by extension, the COVID relief bill, was imperfect. It set a phase-out period for subminimum wage but did not commit funding to build capacity for alternatives. We need more job coaches and more financial incentives for companies to hire disabled people. Many parents worry about what their disabled sons and daughters will do all day, and as a society, we owe them a better answer than “nothing.” Building capacity was not accounted for in Raise the Wage or the COVID relief bill, and still needs to be addressed through separate legislation. The Transformation to Competitive Employment Act is one such piece of legislation. Advocates expect it to be reintroduced soon, but it has a long way to go.
Regardless of what happens at the federal level, subminimum wage for disabled people is dying. Fewer and fewer people are opting to enter sheltered workshops. Younger people and their families largely prefer less exploitative alternatives. Additionally, multiple states have banned or are in the process of banning the practice. Currently, five states have already abolished subminimum wage. This year, eight more states will decide on the issue. President Biden still has an opportunity to display leadership and make good on one of his earliest campaign promises to the disability community, but like the minimum-wage hike itself, it seems to be fading as a priority.
