Thank you for the opportunity to comment on the National Online Dialogue on Section 14©️ of the Fair Labor Standards Act.
I speak about this issue from two vantage points: One, as the President of the National Organization on Disability (NOD), which has advocated since 1982 for the full participation of all Americans with Disabilities in all aspects of life. And perhaps more relevant to this dialogue, I speak as the mother of a 27-year-old son with intellectual and physical disabilities, a prime candidate for a Section 14©️ certificate in a sheltered workshop setting.
For fourteen years, NOD's exclusive focus has been on achieving equity in the labor market for the 2/3 of working aged Americans who are not employed. We do so by helping employers fill jobs in their companies with qualified talent with disabilities.
We have learned firsthand and through the data we collect through our Disability Employment Tracker, that with the right supports, most people with disabilities—whether intellectual, physical or mental health conditions—can function well in the traditional workforce, earning competitive wages. It may take a while longer and the training and support might be different from other workers. But as the research shows, starting people with disabilities out in competitive jobs with job coaches, and helping them move from those coaches to full independence over time, is a far more cost-effective approach than sheltered workshops paying sub minimum wages.
Why is that so? It turns out that "place and train" moves workers into competitive jobs far more quickly than do "train and (eventually, hopefully) place," as sheltered workshops do. More often than not, the next move after sheltered workshops, is to nursing homes in old age.
So it turns out that jobs that pay sub minimum wages in sheltered workshops are not only discriminatory and unfair to workers, they do virtually nothing to help those workers become financially independent over time.
For NOD, doing away with 14©️ is just cost-effective public policy. It will get better outcomes for more people, for less taxpayer assistance.
Putting on my "Jacob's Mother" hat: Jacob, age 27, tests as moderately mentally retarded on standardized IQ tests; and has both low vision and mobility issues. But let me tell you about Jacob's life.
He has a four hour a week job paying $15 an hour, at the NBA flagship store in New York City. Jacob loves going to work. It gives his life meaning and dignity, a social environment with all kinds of people (and more than a few basketball stars!) and most important, a paycheck. The sense of self-worth that comes with a paycheck, the same one Jacob's co-workers get, cannot be overstated. Over time, Jacob will surely work more hours, make more money, and become more self-sufficient. Regrettably, I cannot say the same thing for Jacob's friends in sheltered workshops.
When Jacob is not working at the NBA store, he is taking classes in songwriting, fitness, cooking and art. Those classes not only mean socializing in a community of other learners, but also the critical skills Jacob will need to someday live independently.
And when Jacob is not working or attending classes, he volunteers one day a week at a soup kitchen, alongside other volunteers who are also our neighbors. This adds a dimension not only of socializing with neighbors, but helping others.
Jacob has a helper, James, who helps him navigate his busy schedule, cook his meals, and set up dinners and social events with friends. He is teaching Jacob important skills in self sufficiency, that will someday ensure that he can live independently, and not depend on others or the state, to get by.
All of these activities are available to Jacob through Medicaid, the public assistance program for people who are poor and/or disabled. And Medicaid dollars are administered in New York and 47 other states, through a system called "Person centered planning" (New York's version is called "Self Direction").
Person centered planning means each participant gets resources tailored to his or her personal needs and individual choices. It means a person, and his or her circle of supports, and not an agency, make the decision about how to spend their time.
Person centered planning has been shown to not only provide maximum choice to participants of the Medicaid program, but to be cost effective in comparison to direct funding to sheltered workshops or "day habilitation."
Because of the person-centered model, Jacob is better integrated into his community, earning more money, learning more and in short making far more choices over his life, than if he were in a sheltered workshop where his days would be spent with the same people, programmed by the same staff members, operated by the same program operator.
And importantly, this system actually costs far less per participant than sheltered workshop providers charge while paying their clients sub minimum wage. Part of this is that when workshops need to compete with other activities, costs are reduced. Just as in the marketplace, competition injects better quality, at lower cost.
The Americans with Disabilities Act sought increased equality and financial opportunity for Americans with disabilities, bringing them out of the shadows and margins of our society. The law was intended to combat the discrimination and paternalism, each borne of misconceptions, that Americans with disabilities face every day. Sheltered workshops paying subminimum wage, are not part of this spirit of the ADA.
Back in 1938, when the FLSA legislation was first passed, it was believed that workers with disabilities were less productive than a "normal" or "able-bodied" worker and should therefore earn less than minimum wage. Today, however, we know that workers with disabilities, given equal opportunity and appropriate supportive tools or technologies, can perform as well as their non-disabled counterparts. So the argument that "commensurate" or subminimum wages are necessary to provide employment for people with severe disabilities is fallacious.
And as I've hoped to show in this commentary, contrary to what many operators who provide sheltered workshops paying subminimum wage will tell you, those settings provide far less choice (not more), than Self Direction, or any of the other programs that use a Person Centered planning approach.
On a final note, 14(c) is not a funding source, it is merely a certificate program, a way of directing funding. Sheltered workshops are merely settings. The two have been joined together in the public discourse but even if a family with a member with disabilities chose a sheltered workshop because of limited options of the kind my son Jacob has, it would not be necessary to pay those participants sub minimum wages.
In summary, ultimately, the issue isn't about morality, or discrimination, or even pay, although those things are vitally important to every family, whether with a disabled member or not. The issue should be offering the most choice to every member of society, including and especially those who need help doing so. Eliminating sheltered workshops paying subminimum wages, and replacing them with person centered planning, is the best way to do that.