Hunton Employment & Labor Perspectives

A little known law that permits the disabled to be paid sub-minimum wage is currently under attack. To foster employment opportunities for disabled workers in the mainstream workforce, the Fair Labor Standards Act (FLSA)  has contained, since its passage, a relatively unknown provision under Section 14(e) that allows employers to pay disabled workers sub-minimum wages as long as the wages are commensurate with the disabled worker’s productivity. The prerequisites to paying sub-minimum wage to the disabled are stringent and include:

• Preparing a job description for the employee that identifies duties and responsibilities, skills required, and specifies the days and hours of work;
• Identifying the prevailing wage for the position compiled internally or, if necessary, from similar businesses in the area;
• Determining the productivity level of the disabled employee compared to non-disabled workers (e.g., through time/motion studies); and
• Submitting the information on an application to the Secretary of Labor for a special wage permit allowing for the payment of sub-minimum wages.

On October 4, 2011, Congressmen Cliff Stearns (Republican, Florida) and Timothy Bishop (Democrat, New York) introduced H.R. 3086, The Fair Wages for Workers with Disabilities Act of 2011 (the “Bill”). The Bill would eliminate the ability of the Secretary of Labor to approve sub-minimum wages to the disabled to any new businesses, and would require the phasing out of existing certificates held by private, government, and non-profit entities within one, two and three years, respectively. Proponents of the Bill assert that employees with disabilities, when provided proper rehabilitation services, training and tools, can be as productive as nondisabled employees and that the ability of employers to pay disabled workers less than the federal minimum wage gives them an incentive to exploit the cheap labor provided by their disabled workers rather than prepare them for integrated employment in the mainstream economy. Some activist groups oppose the Bill, claiming that if enacted many individuals with disabilities who have lower productivity at work will not be able to maintain employment. Businesses that employ disabled workers or are considering doing so should pay particular attention to the Bill. Hunton & Williams LLP’s labor and employment team will continue to monitor the situation and provide updates to HELP blog readers as the Bill moves through the legislative process.