DRA_Letter by ashrafp

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									July 15, 2011


The Honorable Tom Harkin                     The Honorable Michael B. Enzi Chairman
                       Ranking Member
Senate Committee on                          Senate Committee on
Health, Education, Labor & Pensions (HELP)   Health, Education, Labor & Pensions (HELP)
United States Senate                         United States Senate
SD-428 Dirksen Senate Office                 SD-428 Dirksen Senate Office
  Building (Committee Staff)                     Building (Committee Staff)
Washington, DC 20510                         Washington, DC 20510

The Honorable Patty Murray                   The Honorable Johnny Isakson
Chairwoman                                   Ranking Member
Senate HELP Subcommittee on                  Senate HELP Subcommittee on
  Employment and Workplace Safety              Employment and Workplace Safety
United States Senate                         United States Senate
SD-428 Dirksen Senate Office Building        SD-428 Dirksen Senate Office Building
Washington, DC 20510                         Washington, DC 20510


RE: Comments on Workforce Investment Act draft legislative package


Dear Senators:

        We are writing to address one very important issue in the Committee’s Workforce
Investment Act (WIA) draft legislative package. We are very concerned with the proposed
language in TITLE V, the Rehabilitation Act that in effect endorses the continuation of sub-
minimum wage employment for certain individuals with significant disabilities. Specifically,
Section 511, “EMPLOYMENT OF INDIVIDUALS WITH SIGNIFICANT DISABILITIES AT
WAGES BELOW MINIMUM WAGE” contains language that effectively endorses a system of
sub-minimum wages for individuals with various types of disabilities – a concept that we believe
is contrary to the very intent of the Rehabilitation Act goal of mandating equal conditions and
opportunities for the disabled.

         For many decades, America has implemented federal protections to ensure that all
workers receive at least an equal minimum wage for their labors. Yet, the minimum wage law
has retained an outmoded exception allowing for subminimum wages for certain workers with
disabilities. Specifically, Section 14(c) of the Fair Labor Standards Act (FLSA) established a
two-tiered system that has allowed employers to pay certain people with disabilities a sub-
minimum wage. This two tiered system sends a message that certain people with disabilities
are not entitled to the minimum equal protections of the law.
August 21, 2011
Page 2
         The Americans With Disabilities Act (ADA) recognized that people with disabilities have
been subjected to a history of second class treatment, and set forth a national mandate for the
elimination of such discrimination [Americans with Disabilities Act of 1990, 42 U.S.C. § 12112].
As an organization dedicated to the enforcement of the rights of people with all types of
disabilities, DRA has been concerned about the continuation of the FLSA provisions allowing
for subminimum and unequal wages for certain workers with disabilities. We believe that the
progress America has made under the ADA is challenged by this antiquated system that
assumes that some persons with disabilities are not employable with reasonable
accommodations even at the minimum wage level. We believe there are situations where the
FLSA two tiered system has resulted in permanent discriminatory conditions for workers with
disabilities. See a report issued in January 2011 by the National Disability Rights Network on
subminimum wage exploitation of workers with disabilities. This report is available at:
http://www.napas.org/images/Documents/Resources/Publications/Reports/Segregated-and-
Exploited.pdf

        Moreover, there is substantial evidence that people with even some of the most
significant disabilities can be competitively employed. For example, the National Industries for
the Blind which for decades had a history of employing blind workers at subminimum wages in
sheltered employment, has now adopted a general policy of employing blind workers at the
federal minimum wage or higher.

        Section 14(c) of the FLSA is not consistent with this general trend or the current findings
that even people with the most significant disabilities can be competitively employed. Although
we understand the positive intent behind the language in Section 511 of the proposed
reauthorization, we believe this does not warrant what is in effect an incorporation of Section
14(c) of the FLSA and its erroneous contention that people with disabilities cannot be
competitively employed. Further, the language in the draft providing an exception where “the
individual has been working toward an employment outcome…for a reasonable period of time
without success” and will “likely not be successful,” could lead to the adoption of subminimum
wage employment as a service of vocational rehabilitation. The Rehabilitation Act has never
before incorporated or referenced Section 14(c) of the FLSA and we urge that it not do so now.

      We respectfully request that the Committee remove Section 511 from the reauthorization
language. In addition, we urge that any expansion or reformation of programs designed to
employ people with disabilities should look to the federal minimum wage as a floor for all
employment activities regardless of disability.


Very truly yours,




Laurence W. Paradis
President
Disability Rights Advocates

								
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