NCD Chairman remarks as prepared for briefing of the U.S. Commission on Civil Rights

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ORAL TESTIMONY (AS PREPARED)

Neil Romano

Chairman, National Council on Disability

Briefing of the U.S. Commission on Civil Rights

On the payment of subminimum wages to people with disabilities

November 15, 2019

Chairman Romano’s Written Testimony to the U.S. Commission on Civil Rights on 14c available here

Esteemed Commissioners, thank you for the opportunity to testify at this briefing.

I’m Neil Romano, Chairman of the National Council on Disability – a federal advisory body that since 2012, has recommended that Congress eliminate the 14(c) provision of the Fair Labor Standards Act.

Last year, NCD recommended that the U.S. Department of Labor (DOL) impose a moratorium on the issuance of any new 14(c) certificates and strengthen their overall enforcement of the program.

Let there be no mistake – This was designed as a first step toward the total elimination of the program.

Some people will testify before this body about the importance of maintaining the “choice” or option to work for subminimum wages.

The belief that someone would “choose” to make less money for their work is, in-and-of itself, a demonstration of how certificate holders do not believe that people with disabilities are whole people capable of making even the most basic decisions beneficial to themselves.

As you look at this issue, please don’t lose sight of our national policy goals, which are tied to the advancement of civil rights for people with disabilities and all Americans.

The ADA became the law of the land to assure equality of opportunity, full participation, independent living, and economic self-sufficiency.

Each of these national policy goals is compromised or impossible as long as paying people with disabilities subminimum wages persists.

It’s helpful to remember 14(c)’s age.

It became legal to pay people with disabilities below the minimum wage

in 1938, when there were no federally protected civil rights for anyone, let alone people with disabilities.

Anything done for people with disabilities in the 1930s– like affording them the “opportunity” to earn pennies an hour--was charity because of the lack of belief in people with disabilities at the time.

However, since the 1930s, society and people with disabilities have come to expect far more out of their lives than past public policies allowed.

Today, we have different words for the “opportunity” to work for pennies an hour – words like discrimination and exploitation.

I could go into the federal protections here, and I have them in my written testimony, but for the sake of time, I’d rather note the federal protections that do not exist.

To understand where federal protections are lacking, it’s important to briefly unpack the doublespeak in the narrative of many community rehabilitation providers (CRPs), some of whom you’ll hear from today.

On the one hand, these organizations will make regular reference to people with disabilities they serve as “workers” and “employees.”

They will say that their employees love the work they are doing; and that there is dignity in the jobs these individuals are doing and the paychecks they’re earning, however meager.

And to be clear, whether performing tasks like bagging screws or untangling hangers, there is financial benefit to the CRPs in the work these individuals are providing.

In many instances, these individuals are performing tasks that fulfill contracts the CRPs have with outside businesses.

So yes, it is work, and yes someone is gaining benefit from that work. But sadly, it is not the person with a disability.

On the other hand, in spite of their prolific employment terminology and the financial benefit to the CRPs for the work performed, in other contexts, CRPs say they are simply “job training,” not jobs.

For instance, in response to questions from sheltered workshops to the Occupational Safety and Health Administration (OSHA) regarding record keeping requirements, OSHA stated that sheltered workshops are an exempt industry as “job training and vocational rehabilitation” providers, and thus do not need to keep OSHA injury and illness records.

As someone who has toured dozens of sheltered workshops around the country – some very clean and well-lit and others dim, dirty and poorly ventilated -- it should concern everyone that there is no requirement to report injuries and illnesses that may occur in facilities where some of our most vulnerable Americans work.

You can’t have it both ways--14(c) is either work or it is training.

If it is work, then it is clearly discriminatory.

And if it is training, it is the most abysmal failure in job training history

with many of the people with disabilities subjected to this “training” for 20, 30, even 40 and more years, shuttered away in gulags of indifference, many times without any meaningful connection to the community or hope for their futures.

According to a letter I received from the Deputy Secretary of Labor, in Fiscal Year 2017, Wage and Hour investigated 217 workshops, 90% of which were found to have violated 14(c) requirements, resulting in nearly $2.5 million dollars in back wages impacting 7,302 employees.

In 2018, Wage and Hour investigated 201 more cases, 83% of which were found with violations, resulting in nearly $2.6 million in back wages and impacting 9,133 employees.

The percentage of violations and the amount of back wages reclaimed would be totally unacceptable in any other business.

It is said that we collect data on things we view as important. And historically, we just don’t count people with disabilities.

For this reason, not surprisingly, there is an extreme lack of data available on people with disabilities who are paid subminimum wages in America.

For far too long, the facts about 14(c) have been hidden from the public and policy makers, leaving the “truth” about 14(c) to be designed by the lobbyists for the providers who have the most to gain by the continuation of this decrepit program.

That’s why we’re delighted that Wage and Hour recently converted its 14(c) application from paper to an electronic format, because there is a great opportunity to collect, aggregate, and analyze information in a way that was not previously possible.

When NCD first called for a phase out of 14(c) in 2012, no state or local government had eliminated the payment of subminimum wages through legislation. However, seven years later, many exciting developments show a shift in thinking about the incongruence of 14(c) with today’s disability policy goals.

Maryland, Alaska, New Hampshire, Texas and the cities of Seattle, Washington, and Reno, Nevada, have all passed legislation banning the payment of subminimum wages completely or in state contracts, and there is pending legislation in Connecticut, Illinois, Montana, New York, and North Carolina to do the same

And even the AbilityOne program has asked all of its central nonprofit agencies to phase out the use of subminimum wages. And this year, SourceAmerica’s Board of Directors adopted a position to phase out and eliminate the practice of 14(c) on all its AbilityOne contracts within three years.

For far too long 14C certificate holders have used the scare tactic that if 14C is eliminated people will lose their jobs. In reality what they are really saying is that they, the workshop owner, will be the ones firing the very people they claim to care so much about because they refuse to pay people with disabilities minimum wages and accept the reality of ADA by working for their transition to community jobs.

And if their current business model can’t deal with the increase in wages, they need to change their business model. The National Industries for the Blind did just that years ago, and they have prospered.

Some parents who have children in 14(c) programs have expressed fears to me about their loved ones losing jobs. We respect those concerns and are working toward policy solutions that pursue a gradual transition to help assure that no one is abruptly affected by the changes.

We know this will require resources and the collective muscle of everyone who cares about equality for all Americans.

With the 30th anniversary of ADA just a little over six months away, this conversation is particularly timely.

As long as it remains legal to pay people with disabilities less than the minimum wage, little pressure exists to invest in alternate models.

If paying our fellow Americans with disabilities pennies an hour under the pretense of “training” continues, our national policy goals – despite the passage of civil rights laws, despite the advancements in the education of people with disabilities, and despite our national march towards equality for all human beings -- will remain nothing more than hollow words.

Thank you for the opportunity to testify before you today.