“They are people who really can’t do anything,” Shawn Tarwater, a state representative in Kansas told a state house committee last month as he argued to protect a scheme that allows companies to pay people with disabilities as little as $3 an hour. “If you do away with programs like that, they will rot at home. There is no place for them to go.”
The comments have sparked a storm of protests from disability advocates and highlighted a system of state tax credits across the US that allows employers to pay people with disabilities significantly less than the federal minimum wage. In some cases, disability advocates say, people are being paid as little as three cents an hour.
The row over Tarwater’s comments comes as disability rights groups have been pushing for the end of subminimum wage waivers for employers who employ people with disabilities in several states and at the federal level.
Since the federal minimum wage was first enacted in 1938, exemptions have existed for people with disabilities. A 14(c) waiver from the US Department of Labor allows employers to pay people with disabilities less than the federal or state minimum wage.
A US commission on civil rights report found the average wage of a person with a disability working in a job covered by the lower-than-minimum-wage waiver made $3.34 an hour in 2017 and 2018. On average they worked 16 hours a week, meaning they made just $53.44 each week, or $213.76 a month.
Joe Cheray, the chair of the Kansas Democratic Disability Caucus and member of the Topeka ADA advisory council, said she has been trying to meet with Tarwater and address his comments and the lack of any disability policies included in the Kansas Republican party platform.
“I don’t feel like it’s fair for businesses to get a tax credit for hiring people with disabilities and not pay them an actual wage,” she said. “I feel like that’s double dipping off the backs of people with disabilities. I have a son who is disabled, he has cerebral palsy and I take care of him full time. I would not want him to go out to a job and get paid $2 an hour. With subminimum wage they can pay whatever they feel like.”
Cheray pointed to other problems facing people with disabilities, such as lack of compliance with the Americans With Disabilities Act, lack of accessibility to spaces and other worrying legislative measures, such as in Oklahoma, where the Republican-dominated state government voted against a bill that would have banned physical discipline against students with disabilities.
A Republican opponent to the bill recited a Bible passage on the state house floor in support of the use of corporal punishment on children.
“We’re always in the dark ages when it comes to just about everything,” added Cheray.
Disability advocates have made progress in recent years. Thirteen states have passed laws banning the subminimum wage exemptions for people with disabilities. Virginia recently passed a law banning the subminimum wage and a grant has been provided by the federal government to support the transition. The bill is currently awaiting the governor’s signature. Laws to ban the subminimum wage in Minnesota, Connecticut, New York, West Virginia and Kentucky were also introduced this year.
“As a person who has a disability, I would never accept a job where I was making $3 an hour,” said Matthew Shapiro, who lobbies on behalf of the Virginia chapter of the Association of People Supporting Employment First (Apse) which strongly supported the Virginia bill to end the subminimum wage.
“In many instances, the individuals who are being supported under 14(c) certificates may or may not know they can go across the street and make $10 an hour or whatever,” he said. “I just don’t find that to be appropriate. The majority of the disability community wants this provision gone. We want to be paid fair wages. We want to be valued for our work.”
The non-profit Melwood, a former 14(c) certificate holder that voluntarily phased out using the certificate, has led efforts to pass the bill in Virginia.
“There are places in this country under this law where there are people being paid three cents an hour,” said Jewelyn Cosgrove, vice-president of government and public relations at Melwood. “Understanding that this law enabled such a stark difference from the actual minimum wage has helped people to understand more of the reality of what it’s like to be paid under 14(c).”
Larysa Kautz, CEO and president of Melwood, added the minimum wage is not based on productivity; it’s based on what a person’s hour is determined to be worth.
“People with disabilities are people, they’re whole people, they’re complete people and they should not be paid by an employer less than the minimum wage – that’s the bottom line,” Kautz said.
In several states, from Kansas to Missouri, efforts to get rid of the subminimum wage for people with disabilities have faced staunch resistance. In 2021, Missouri passed a law to issue their own waivers to employers to pay subminimum wages to people with disabilities if the US Department of Labor stops issuing them, the first state to do so.
Sheltered workshops operating with subminimum wage waivers range from light manufacturing lines to recycling facilities. About 1,000 employers around the US currently hold these waivers, with estimates of about 40,000 to 100,000 workers being paid subminimum wages by these employers.
A report published by the Government Accountability Office in January 2023 found the number of employers with these waivers have declined from 2010 to 2019, but the majority of workers at these employers make less than $3.50 an hour. Between 2012 to 2021, the labor department’s wage and hour division identified over $15m in unpaid back wages to more than 73,500 employees working under these waivers.
For R Larkin Taylor-Parker, legal director of the Autistic Self-Advocacy Network, the efforts to get rid of the subminimum wage for people with disabilities are an anti-poverty effort and about dignity.
“There is an inherent indignity to being placed in an environment that is by definition segregated, and that pays less than any other worker in the economy,” said Taylor-Parker. “We’re letting this population make less than minimum wage and live with the inherent insult of that, and also live with the inherent insult of being treated as a fractional worker, in a job that may not be that suitable for the individual instead of being asked to do what most of us do when we look for a job and find something that really plays to our strengths and takes advantage of what we do well, instead of being so focused on our weaknesses that we’re not really that productive.”
Taylor-Parker said that the opposition to transitioning these sheltered workshops into competitive employment that pays at least minimum wage is predicated on fear, but that is why transition grants and periods are included in legislative efforts to end the subminimum wage for people with disabilities, to build better, more dignified systems and sustainable models that have been built and are thriving elsewhere.
A bipartisan federal bill to phase out the subminimum wage for people with disabilities, the Transformation to Competitive Integrated Employment Act, was reintroduced to Congress in February 2022.
“If you look at any of the protected classes from our civil rights laws, there’s only one of those groups that’s exempt from the federal minimum wage, and that is people with disabilities,” said Dr Julie Christensen, director of policy and advocacy for Apse. “It’s based on a law that existed for a different population in a different period of time with a different labor market, with a different level of expectation, and I think most importantly, with a different sense of what people with disabilities can do.”
Dr Christensen explained the bill provides a phase-out period for sheltered workshops to transition to paying at least minimum wage, includes funding for transition resources and data collection on the affected workers and the efforts to integrate them into the workforce.
“I have a lot of empathy for how scary this transition can look like,” she added. “But I think we do a disservice in the messaging and the stories that are being perpetuated that are not the reality of where successful transition has happened and has led to amazing outcomes for people even with the most significant disabilities.”
