Here is an interesting development concerning the sub-minimum wage issue (see my previous post). Six states enacted measures last year to raise the minimum wage. Two of the six – Ohio and Missouri – included exemptions for workers with disabilities from the minimum wage provisions. The other four – Arizona, Nevada, Colorado and Montana – did not include in their laws any language that would exempt such employees from their new state minimum wage.
Now Arizona Attorney General Terry Goddard has issued an opinion stating that workers with developmental disabilities are not exempt from that state’s new minimum wage that voters approved last November in Proposition 202. The new minimum wage of $6.75 an hour took effect Jan. 1.
Goddard concluded that the “special” minimum wage authorized by the federal Fair Labor Standards Act for workers with disabilities was not incorporated into the language of Proposition 202. Employers in the state previously were allowed to pay a lower minimum wage to individuals with disabilities commensurate with their productivity.
This issue will probably be a battle now. I am on the side of the law as it now stands. Minimum wage should be for everyone – and for those individuals with disabilities who need support for their productivity, let us use what we now know through supported employment to customize their job and their support. We should not solve hiring and productivity problems on the backs of those who can least afford it.
A copy of the opinion can be accessed at http://www.azag.gov/opinions/2007/I07-002.pdf
So what is the status now? I’m with the National Association of Governors’ Committee on People with Disabilities and our counterpart in Wisconsin has had elimination of subminimum wage for people with disabilities as his mission for years. I’m doing some research on what the status is now and opinions on both sides of the argument. National Council on Disability will be in Kansas City in a couple of months and I am thinking of giving public comments to encourage them to continue to recommend elimination of subminimum wage as they did in 2001 in their recommendations on employment of people with psychiatric disabilities. So talk to me about what we would call it if a person could not produce up to a capacity that would warrant higher wages? Is it OK to stop calling it work?
Pennies for Pay? Minimum Wage Should be For Everyone
A legal minimum wage should be for all citizens. For those individuals with disabilities who need support for their productivity, disability professionals must use current employment practices and technology to customize their job and their support. We should not solve hiring and productivity problems on the backs of those who can least afford it – workers with disabilities.
The argument for sub-minimum wage seems to revolve around the need for less than minimum wage in order for people with disabilities to have access to employment, due to their lower productivity. The bigger issue is that the reason many people with disabilities earn so little when compared to a normed sample is that the work they are offered is poorly matched to their interests and capabilities. Workers with disabilities aren’t always slower by 50%, 80%, or 90% on all work tasks – it depends on the task, the person, and the job fit. When there is a gap, the first solution is to re-analyze the job, not reduce the pay. We should work to try to figure out how to obtain work supports and match job tasks so that the employer gets a productive worker. It is not a question of disability, it is a question of support and job matching.
There is no doubt that some individuals with disabilities are slower in certain tasks, depending on the task and the disability. Of course this statement is also generally true of all people, depending on the task and the skill. The thing about productivity in a sheltered workshop is that it is largely confined to a limited scope of work, typically packaging, assembly, shipping, or some other rather repetitive task. If you happen to be slow on these type of tasks, or make too many mistakes, then you will be judged as not ready for a real job.
But this is inherently unfair. Productivity is largely related to the match of skill and task, but it is also related to motivation, the sense of belonging, wages, social relationships. self esteem, the assistance and training you get, and other factors. For example, some jobs require skills other than speed (e.g., accuracy, good interpersonal skills). Thus, the focus on work rate as the only criteria for wage determination is inappropriate. Furthermore, the actual methods used for time sampling are faulty. The conditions under which people are being timed as well as the work environment itself are unnatural.
A worker might earn pennies a day for his slow pace assembling a business mailing, but at a health club where he welcomes customers and checks their membership cards, he might be at 100% productivity for the employer. That is, with a little help, he does the job he is asked. He likes the work, the people, and it makes him feel good. He also has the supports he needs to succeed. Thus, he is motivated. And, he is good at what the employer needs.
This is productivity. The law should not allow a disability professional to pass judgment on who is productive to earn the right to a job, especially based on invalid information. Nor should it allow anyone to determine that an individual is only qualified to earn pennies an hour. This disability system needs to figure out what a person needs to do, and to have, to be productive. It means finding the right job match and giving the right supports. Productivity isn’t fixed. Nor is the setting in which it is assessed. Minimum wage should be the minimum – by definition, the lowest you can go. If there is a productivity gap for a particular employee with a disability, let us work with an employer to solve it in some way so that the cost does not come from the worker who is already likely to be living below the poverty level.