It is critical that people with disabilities are treated equitably in their communities, including equitable opportunities for fair labor and real jobs. Unfortunately, this equity is not a reality for tens of thousands of people with disabilities across the United States – despite existing legislation, such as the Fair Labor Standards Act, that supposedly protects American workers from unfair working conditions. In fact, the Fair Labor Standards Act itself includes Section 14c, which allows employers to pay workers with disabilities less than the minimum wage. It happens every day, by many employers you likely know well.
The Department of Labor was founded early in the 20th century to foster the wellbeing of workers in the United States, including an emphasis on improving working conditions and enhancing employment opportunities. In 1938, Congress enacted the Fair Labor Standards Act (FLSA). The FLSA establishes a minimum wage and overtime pay, as well as recordkeeping and child labor standards intended to protect workers – both full-time and part-time – in both the private and public sectors. For millions of American workers, the FLSA is one of the most important pieces of employment-related legislation – protecting them from damaging workplace conditions and promoting their health, well-being, and happiness as employees.
The Fair Labor Standards Act Falls Short
However, the FLSA does not benefit all employed individuals in the United States. In fact, Section 14c of the FLSA specifically allows unfair subminimum wages to be paid to Americans with disabilities.
Employers who wish to utilize Section 14c must apply for a certificate via an application to the Department of Labor’s Wage and Hour Division. Currently, there are almost 1,000 employers in the United States who have received 14c certificates, and around 200 employers awaiting certificate acceptance. These employers include chapters of Goodwill, Easter Seals, ARC, and United Cerebral Palsy.
Section 14c currently impacts approximately 50,000 people with disabilities. Not only are companies paying these employees below the minimum wage, but also, many work in “segregated sheltered workshops,” where they are isolated with little or no contact with non-disabled persons.
A January 2023 report by the United States Government Accountability Office reports that 51 percent of workers with disabilities employed by 14c employers are paid less than $3.50 per hour. A large percentage earn less than $1.00 an hour. Most of them work part time and don’t have employer-sponsored health insurance. Additionally, 66 percent of 14c employers do not comply with the minimal FLSA requirements that do apply to them, resulting in over $15 million in wages that should have been paid out to people with disabilities. And even though federal law says that no one is allowed to enter a sheltered workshop until they’ve been counseled on competitive integrated options, in a 4-year period these employers violated that requirement 300 times. The Department of Labor, tasked with oversight of the 14c program, falls short. They are responsible for ensuring correct wage calculation, but this oversight is hampered by processing times taking up to two years.
The Call for an End to Section 14c
Section 14c is based on an entrenched prejudice toward people with disabilities. We are paying some of the world’s most vulnerable and exploited people below the minimum wage – legally. There is no minimum to what they can be paid, either. Some employees are paid only pennies per hour. Additionally, segregated sheltered workshops confine people with disabilities away from nondisabled people, stripping them of their right to live fully within their communities. Essentially, we isolate a group of people with disabilities, pay them virtually nothing, and far too often, let their employer handle their government benefits as their representative payee. These companies operate on the standard that the work of people with disabilities is not even worth the minimum wage – a practice that must end, immediately.
Many organizations, including Brown, Goldstein & Levy, are currently fighting for an end to Section 14c: TASH, the National Disability Rights Network, APSE, the United States Commission on Civil Rights, the Bazelon Center, and more. Eighteen states have eliminated, or have started to phase out, the authority of employers to pay subminimum wages. The Transformation to Competitive Integrated Employment Act was even introduced to fight subminimum wages and phase out the use of 14c certificates over four years; however, it continues to be shot down by Congress and the government continues to issue new certificates.
The Fight Must Continue – Introducing the Bazelon Center
Advocacy work in this area must continue. The fight cannot end, and it counts on the persistence of individuals and organizations across the country dedicated to workplace equity. Speaking from personal experience, I have been proud to work alongside the Bazelon Center on this exact issue as Chair of its Board of Trustees.
Bazelon works to ensure full inclusion and equality for people with mental disabilities, which are health conditions covered under the ADA. People with diagnosed mental health conditions have a right to job accommodations. These conditions include, but are not limited to, neurodevelopmental disorders, depressive disorders, bipolar and related disorders, anxiety and obsessive-compulsive disorders, personality disorders, and more. Since 1972, the Bazelon Center has advocated for the civil rights, full inclusion, and equality of adults and children with mental illness or developmental disabilities. They fight the discrimination against and segregation of people with mental disabilities in the workplace and otherwise.
Bazelon was a key organization in the passing of the Americans with Disabilities Act (ADA) in 1990 and played a key role in the historic Olmstead v. LC case, where the Supreme Court found that needless segregation of people with psychiatric disabilities violates the ADA. Today, Bazelon works to expand Olmstead’s reach to work against unnecessary institutionalization in public facilities, as well as segregation of people with mental disabilities in nursing homes, adult care homes, schools, sheltered workshops, and day services. The organization has provided thousands of individuals with the opportunity to live full lives in their own communities, rather than in segregated facilities.
As Board Chair, I am proud to have worked alongside the Bazelon Center to achieve similar goals – both with Bazelon and in my role as partner at Brown, Goldstein & Levy. Ultimately, we share the belief that all people – regardless of their disability status – have the right to live fully and wholly within their communities, free from discrimination. Alongside Brown, Goldstein & Levy, I am proud to support the Bazelon Center in its 50th Anniversary and beyond.
Now Is the Time to End Section 14c
It is time to stop issuing 14c certificates to employers and to eliminate Section 14c altogether. Unemployment is down, and mainstream employers across the country are seeking good employees – which includes people with disabilities. The ADA makes nondiscrimination and accommodation in the workplace a requirement, and greater emphasis on workplace diversity, equity, and inclusion applies to people with disabilities. As the ADA and the Individuals with Disabilities Education Act (IDEA) become more ingrained, younger people expect to have individuals with disabilities in their workplaces and communities. Additionally, people with disabilities expect to work real jobs within their communities. All in all, it is imperative that we have higher expectations than we did in 1938 – 85 years ago.
BGL is enthusiastic about continuing to work alongside the Bazelon Center and other partners to achieve this significant milestone and ensure employment equity for people with disabilities across the country. This work cannot, and will not, wait. I believe that we are called to leave a legacy and walk in the footsteps of disability rights advocates who came before us. In the words of former President Barack Obama, we are called to feel “the fierce urgency of now [and recognize] that change depends on our actions, our attitudes [and] the things we teach our children.” Indeed, now is the time for us – all of us – to work to end subminimum wages once and for all.
ABOUT EVE HILL
Eve Hill is one of the nation’s leading civil rights lawyers, known especially for her work with clients with disabilities and LGBTQ+ clients. She has been recognized by Law360 as one of just 12 “Titans of the Plaintiffs’ Bar” for 2023, as well as by Lawdragon as one of the 500 Leading Lawyers in America (2022 and 2023). Her wide-ranging experience complements Brown, Goldstein & Levy’s decades of dedication to high-impact disability rights cases and its advocacy on behalf of individuals with disabilities and their families. Eve also leads Inclusivity, BGL’s Strategic Consulting Group, which works with organizations to promote the education, engagement, and employment of people with disabilities. Learn more about Eve.
ABOUT THE BAZELON CENTER
Since 1972, the Judge David L. Bazelon Center for Mental Health Law has advocated for the civil rights, full inclusion, and equality of adults and children with mental disabilities. It was pivotal in expanding the civil rights movement to include fighting discrimination against, and segregation of, people with mental disabilities. Today, the Bazelon Center accomplishes its goals through a unique combination of litigation, public policy advocacy, coalition building and leadership, public education, media outreach and technical assistance—a comprehensive approach that ensures it achieves the greatest impact. Learn more about the Bazelon Center.
ABOUT BROWN, GOLDSTEIN & LEVY
Founded in 1982, Brown, Goldstein & Levy is a law firm based in Baltimore, Maryland, with an office in Washington, DC. The firm is nationally recognized in a wide variety of practice areas, including complex civil and commercial litigation, civil rights, health care, family law, and criminal defense. Above all else, Brown, Goldstein & Levy is a client-centered law firm that brings decades of experience and passionate, effective advocacy to your fight for justice. Learn more about Brown, Goldstein & Levy.