On December 4, the U.S. Department of Labor (DOL) published a proposed rule in the Federal Register that, if implemented, could someday mean that no worker in this country can legally be paid less than the federal minimum wage.
I used to think that the word “minimum” meant bottom, and since you can’t go any lower than the bottom, I thought that the minimum wage was the least amount that an employer could pay a worker.
But there’s no limit to how little employers can pay certain workers—as long as those workers have disabilities.
This is all perfectly legal because of the Fair Labor Standards Act (FLSA) of 1938. Section 14(c) of the bill allows an employer to pay certain workers with disabilities subminimum wages if the employer can convince the DOL that their disabilities make them less productive than the average employee.
Disability rights activists have been clamoring for years for the federal government to do away with section 14(c) of the FLSA. This part of the law is “inherently based on a deeply flawed and false idea that disabled workers’ labor is worth less,” said Maria Town, CEO and president of the American Association of People with Disabilities (AAPD) in a September press release. “It is a policy rooted in a charity model of disability that communicates to disabled employees, ‘You should be grateful for whatever you can get.’ ”
According to the DOL, more than 40,000 disabled workers are being paid less than the federal minimum wage, which is currently a paltry $7.25 per hour. Disabled workers under 14(c) certificates are paid an average of $3.34 an hour, and many receive even less than that, despite “many of those underpaid disabled workers performing the same duties as their non-disabled colleagues,” according to the AAPD. Some of these workers are paid 25 cents an hour, or less.
The National Association of Councils on Developmental Disabilities declared the provision as “perpetuating a system of segregation, exploitation, and limited opportunity.”
As Keely Cat-Wells, CEO of Making Space, wrote last month in Time, when the FLSA was passed, “The idea was that by offering subminimum wages, employers would be incentivized to hire disabled workers who might otherwise be excluded from the workforce.” She continued, “However, it has become a convenient loophole for employers to secure cheap labor while exploiting disabled workers without facing any consequences.”
The proposed rule notes that “fifteen states have laws that prohibit or are in the process of prohibiting subminimum wage payments, and an additional nine states have limited or restrained the payment of subminimum wages.”
Under the DOL’s newly proposed rule, the DOL would immediately stop granting employers new permissions to pay disabled workers less than the federal minimum wage, and that the agency would terminate all existing permissions within three years.
But I’m not going to get too excited about any of this just yet, because there is still an enormous elephant in the room: the role of the incoming Trump Administration.
To initiate the rulemaking process, a federal agency publishes a proposed rule in the Federal Register. The agency then invites the public to submit comments on the proposal by a given deadline, after which the agency’s staff members will review and consider all comments before taking further steps with the proposed rule—whether that be amending it, withdrawing it, or finalizing and publishing it unchanged. This process can become very long and drawn out because there may be thousands of comments to review. So far, more than 2,200 comments have been submitted on this proposal.
The deadline for comments on this proposed DOL rule is January 17, 2025. Three days later, the department will be taken over by people working for the squatter preparing to reoccupy the White House.They will inevitably control how quickly this initiative moves forward, or if it moves forward at all. Considering the large amount of contempt and disregard that the squatter has shown for people with disabilities, that’s a big if.