Why Do Workers with Disabilities Still Experience Wage Discrimination?

According to the Bureau of Labor Statistics (BLS), only 19.1 percent of disabled adults have jobs. Many disabled workers only earn substandard wages in the range of $2.15 an hour. Surprisingly, it is federal law that creates a loophole, making low pay possible and legal.

Poverty is a real and pressing issue for the disabled community. In 2018, the poverty rate for disabled individuals between the ages of 18 and 64 years old was 25.7 percent. The poverty rate for non-disabled persons actually dropped below 12 percent. Low employment rates and wages have a lot do to with the poverty level among the disabled community. Without income that reflects the current cost of living, disabled workers find it hard to escape the cycle of poverty and underemployment.

What is the Fair Labor Standards Act?

One might assume subminimum wages are illegal in the United States; however, the Fair Labor Standards Act (FLSA) of 1938 contains a section that enables businesses with certain certificates to hire disabled workers and pay them at rates well below minimum wage.

Overall, the FLSA establishes a range of guidelines related to workers in both private and public sectors, such as youth employment standards, overtime pay, recordkeeping, and minimum wage. While the current federal minimum wage is $7.25 per hour, some states have higher minimum wages. In New Jersey, the minimum wage is $10.00 per hour.

The 14(c) Subminimum Wage Program was created as an incentive to employers to hire disabled workers; however, not every business can pay disabled employees low wages. To become certified, an employer must submit an application and show that it would take a disabled person more time to complete a task than it would take a non-disabled person. If approved, the business can pay the worker less than $4.00 an hour.

Calls to Repeal Section 14(c)

In September 2020, the United States Commission on Civil Rights published a report on the impact of subminimum wages on the disabled community. The Commission reviewed data from an extensive list of state and federal agencies, disability advocates, disabled workers, and families to ultimately recommend the repeal of Section 14(c). According to their data, more than 100,000 workers with disabilities make less than minimum wage, averaging at around $3.34 an hour.

The Commission cites the lack of regulation and oversight for Section 14(c) programs and minimal support to help disabled workers graduate to the larger competitive economy. The report includes a planned phase-out period to ensure states can provide essential support and resources for disabled persons once Section 14(c) is gone.

Sheltered Workshops and Supported Employment

Sheltered workshops employ disabled workers separately from the larger workforce. Sheltered workshops primarily hire disabled employees, and in most cases, they are permitted to pay them subminimum wages under the FLSA.

Federal policies are shifting in the direction of supported employment in integrated settings. Integrated workspaces allow disabled employees to interact with non-disabled colleagues in real-world, competitive work settings while receiving programs and services that help them thrive.

What Does Work Look Like in a Sheltered Workshop?

A sheltered workshop is run by a combination of private firms and non-profit agencies. These programs often employ adults to perform single-tasks repeatedly, such as packing items into boxes or assembling office supplies.

A job is not assigned based upon a worker’s mental or physical abilities. Most employers pay anywhere from a few cents per hour to less than the federal minimum wage. Far from providing skills and experience to help employees graduate to more challenging work, these jobs do not let disabled workers advance. Many disabled employees working in sheltered workshops remain there until they retire or pass away.

How are Disabled Workers Protected?

While Section 14(c) of the FLSA provides a loophole that allows employers to hire disabled adults for less than minimum wage, other laws offer underpaid workers some protections:

Protection in New Jersey

The New Jersey Law Against Discrimination (NJLAD) makes it illegal to discriminate against a person at work. Protections include:

• Race
• Creed
• Nationality
• Sex
• Pregnancy
• Breastfeeding
• Gender identification
• Marital status
• Age
• Disability

The NJLAD generally applies to employment, housing, places of public accommodation, and credit and contracts.

Diane B. Allen Equal Pay Act

In 2018, New Jersey Governor Phil Murphy expanded the protections under the NJLAD with the Diane B. Allen Equal Pay Act. Effective July 1, 2018, the law prohibits employers from paying workers who belong to NJLAD-protected classes less than other employees.

The Americans with Disabilities Act

Implemented in 1990, the Americans with Disabilities Act of 1990 (ADA) addresses the unique needs and challenges disabled persons face every day. Different titles under the ADA cover different facets of life.

Title I specifically deals with making the jobsite more accessible to disabled workers. Employers are required to provide reasonable accommodations for applicants and employees with disabilities, such as interpreters and handicap-accessible bathrooms.

How is Section 14(c) Being Manipulated?

While the intent of Section 14(c) was to give disabled individuals the opportunity to work and earn an income, instead it is being used to exploit vulnerable individuals.

To pay a person subminimum rates, an employer must show the U.S. Department of Labor that the worker’s disability prevents them from making minimum wage. They base this determination on imperfect calculations of a disabled worker’s ability and a non-disabled person’s ability to perform the same task. These calculations are self-reported. Unless the Department of Labor decides to investigate, these numbers can easily be manipulated.

What Should I Do if I am Making Less Than Minimum Wage?

Disabled workers in New Jersey who are underpaid do have some options to fight unfair wages. Complaints are filed through either the New Jersey Division of Civil Rights (DCR) or the federal Equal Employment Opportunity Commission (EEOC), depending on the size of the business. After an investigation, if the DCR determines a complaint is founded, the employer may be required to pay back fair wages.

Yet, before filing a complaint, a disabled worker should first consider meeting with a lawyer about the discrimination matters. While a DCR complaint is not required to take legal action against an employer, if the DCR finds no probable cause for a complaint, the worker cannot pursue a claim in court. That leaves a disabled worker with no recourse to recover back pay or other losses.

Every employee deserves fair pay for their work. A skilled lawyer is the best way to protect the rights of a disabled employee. A lawyer will take appropriate legal action to achieve justice.

Cherry Hill Employment Lawyers at Sidney L. Gold & Associates, P.C. Advocate for Disabled Workers

Even with state and federal employment laws, wage discrimination still exists, and it impacts some of the most vulnerable members of our community. Our Cherry Hill employment lawyers at Sidney L. Gold & Associates, P.C. believe every person deserves fair wages. If you were discriminated against a work or you are not receiving appropriate pay, we can help. Call us at 215-569-1999 or complete our online form for a free consultation. Located in Pennsauken, New Jersey, we serve clients throughout South Jersey, including Cherry Hill, Haddonfield, Marlton, Moorestown, and Mount Laurel.