Braille Monitor                                                 August/September 2011

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No More Subminimum Wages: The Time Is Now!

by Fredric K. Schroeder

Fred Schroeder at the podiumFrom the Editor: Friday morning, July 8, NFB First Vice President and former Commissioner of the Rehabilitation Services Administration Fred Schroeder keynoted an employment panel with a fiery speech laying out the injustices of subminimum wages for people with disabilities. This is what he said:

On Tuesday, October 29, 1929 [Black Tuesday], an unprecedented freefall in stock prices rocked the United States to its very foundation. Without warning the nation found itself in the grip of an economic disaster, later to be known as the Great Depression. Literally overnight millions of Americans lost their life savings and millions more lost their jobs. Unemployment rose to 25 percent, and no one knew when or if the economy would recover.

From the depths of unemployment, hunger, and despair, Americans looked to the 1932 presidential election for a change in leadership, a change in direction, and a ray of hope. That year, in his Democratic presidential nomination acceptance speech, Franklin Roosevelt said, "I pledge you, I pledge myself, to a new deal for the American people." Thus began an aggressive series of reforms to get America's economy back on track and its citizens back to work. But as desperately as Americans needed jobs, they needed jobs that offered a living wage--what Roosevelt called, "a fair day's pay for a fair day's work." Accordingly President Roosevelt--as a centerpiece of the New Deal--undertook sweeping reform of the nation's labor laws.

In 1938 the Congress adopted the Fair Labor Standards Act. The Act included numerous reforms; however it is best remembered for establishing the federal minimum wage. President Roosevelt characterized the Fair Labor Standards Act as "the most far-reaching, far-sighted program for the benefit of workers ever adopted in this or any other country." But the minimum wage was not for everyone: not for the blind and not for others with disabilities. The 1938 Fair Labor Standards Act permitted blind workers and others with disabilities to be paid less than the minimum wage, meaning that for the blind and others there continued to be no minimum at all.

The Fair Labor Standards Act, with its subminimum wage provision, reflected society's beliefs and assumptions about the impact of disability on an individual's productivity. While others were guaranteed the minimum wage, people with disabilities had to prove their worth. That was the thinking in 1938, and, given the attitudes of the day, it is not surprising. What is surprising is that today--seventy-three years later--the law continues to countenance subminimum wages for blind people and others with disabilities. But that must end. As we call for in Resolution 2011-17, it is time to pass the Fair Wages for Workers with Disabilities Act. No more subminimum wages: the time is now!

Defenders of the subminimum wage system argue that some people have such complex disabilities that they truly are incapable of working competitively. They say that, in spite of their limited ability, they deserve the chance to be as productive as they can. And, we are told, the subminimum wage system enables those individuals--people with the most significant disabilities--to work and to be paid according to their productivity. Besides, they say, no one is forced to go to a sheltered workshop. It is an option, a choice—but is it really?

Prior to 1938, with crushing unemployment, Americans were so desperate for jobs that they would work for essentially any wage under any conditions. They did not choose to send their children to work in factories. They did not choose to work in sweatshops. They did not choose poor wages and long hours. They did not choose unsafe working conditions. They had no choice. They had to take what they could get. The same is true for today’s workers with disabilities.

With a 70 percent unemployment rate, far too many people with disabilities are faced with the Hobson's choice of sheltered work or no work. As with the Depression era workers of the 1930s, today's workers with disabilities cannot simply walk away because there is nowhere else to go. They must work for any wage under any conditions or have no work at all. As we know, President Roosevelt contracted polio as a child and, as a result, had limited use of his legs. Ironically, had he not been born into wealth and privilege, he might well have ended up working at a subminimum wage--paid according to someone’s assessment of his productivity--instead of becoming president of the United States.

The question is not whether there are people with complex disabilities that impair their productivity; the question is whether it is equitable and just to require people with disabilities to prove their worth and to do so by performing mind-numbing, repetitive work. People with disabilities are not given menial, monotonous work because it is the only work they can do but because it is work that fits society’s low expectations. There is no justice in requiring people with disabilities to prove their worth while others are guaranteed the minimum wage. The time has come to pass the Fair Wages for Workers with Disabilities Act. No more subminimum wages: the time is now!

Years ago I knew a blind woman who worked in a sheltered workshop. In addition to blindness, she had cerebral palsy, giving her limited use of one side of her body. Her job? She worked assembling large heavy rubber mats, a physically demanding job. She was paid on a piece rate based on the number of mats she could assemble each day. She was paid according to her productivity, taking home less than $6 for two weeks’ work. Oh, and by the way, she had a college degree. Clearly, the job was a poor match. It did not reflect her ability but her physical limitations. Yet no one asked if it made sense for her to be making large, heavy rubber mats. No one asked if another job might be a better fit, given her education and interests. The sheltered workshop made mats, and that was the work she was given.

In 1986 I became the first executive director of the newly created New Mexico Commission for the Blind. One of the programs that was transferred to the new Commission was a sheltered workshop. As the new director, the first policy I issued was to eliminate the payment of subminimum wages. I was told that my actions were irresponsible, that the workshop would go broke and have to close its doors, leaving the workers out in the cold with nowhere to go. But the sheltered workshop did not go broke, even when we began paying better wages, even when we began paying into the Social Security system, even when we began providing vacation and sick leave, even when we began providing retirement benefits.

So how did we stay afloat? How did we remain profitable? We started with the assumption that blind people could be competitive. We assumed that it was the responsibility of management to find profitable contracts and to phase out those that were not profitable. We looked at whether the jobs available in the workshop--mostly industrial sewing and assembly--were regarded by the workers as suited to their skills and interests; and, when they were not, we helped the workers find other jobs, jobs in the community. We assisted the woman who worked assembling large, heavy rubber mats to set up a home-based telephone answering service business, a much better match with her skills and ability and one at which she could earn a good wage--a competitive wage--not some piece-rate subminimum wage.

But, you may ask, how big is the problem really? How many people with disabilities are being paid below the minimum wage? According to the U.S. Department of Labor, as of November 10, 2010, approximately 2,552 employers were holding special subminimum wage certificates. But that does not mean that there are only 2,552 people being paid below the minimum wage--disgraceful as that number would be. The actual number is much larger--much, much larger. A certificate is not required for each individual. Many individuals can be paid below the minimum wage under a single subminimum wage certificate. The U.S. Department of Labor estimates that under the 2,552 subminimum wage certificates approximately 368,106 individuals with disabilities are being paid below the minimum wage--over a third of a million people. And there is essentially no oversight. Last I knew, only three federal inspectors were assigned to monitor the payment of subminimum wages to the 368,106 workers with disabilities.

So is the answer to hire more inspectors? No. The problem has been and continues to be that the subminimum wage exemption is based on the unquestioned assumption that blind people and others with disabilities must prove their worth--prove their worth--while people without disabilities are assured the minimum wage. The subminimum wage system is rooted in low expectations. It operates with little oversight and even less accountability. When deciding an individual's productivity, no one questions whether the individual has received adequate training. No one questions whether the individual has been given the needed supports and accommodations to reflect his or her ability fairly. No one questions the accuracy of the time study used to determine the individual's wage. No one wonders whether other jobs might be better suited to the individual's strengths and interests. And no one wonders if there might be a conflict of interest--whether it is fair to entrust the same entity that stands to benefit from keeping wages low with the job of deciding the individual's productivity.

And the federal government supports and encourages the system by granting noncompetitive federal contracts under the Javits-Wagner-O’Day Act. To work on these contracts, an individual must be legally blind or must have a physical or mental disability that "constitutes a substantial handicap to employment and is of such a nature as to prevent the individual under such disability from currently engaging in normal competitive employment." But who decides that an individual is incapable of engaging in "normal competitive employment”? The workshop does. And who decides the individual's productivity? The workshop does. And who decides how many hours an individual can work each week? The workshop does. And who oversees the subminimum wage system? Essentially no one.

It is time to end subminimum wages for blind people and others with disabilities. It is time to end the abuse, time to end the exploitation; and it is time to end the custodial attitudes that perpetuate low expectations, the idea that the blind and others with disabilities must prove their worth. It is time to end the economic enslavement of the blind and others, and it is most certainly time to end the federal government’s protection of a flawed and failed system that operates in the name of charity and kindness. It is time to pass the Fair Wages for Workers with Disabilities Act. No more subminimum wages: the time is now!

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