When Jan Dougherty’s son, Ryan, graduated from high school in Canton, Ohio, in 2002, school counselors and vocational rehabilitation providers told her that the only place he belonged was a sheltered workshop.
“We were told Ryan didn’t belong in the community,” Dougherty says. Ryan, who is autistic, was considered “too disabled” to work.
When it was passed in 1938, the Fair Labor Standards Act (FLSA) established a federal minimum wage, guidelines for overtime pay, and child labor restrictions. It also created 14(c) certificates that permit employers to pay people with disabilities less than the minimum wage. According to a 2020 report from the U.S. Commission on Civil Rights, Americans with disabilities earn on average less than half of the federal minimum wage per hour. In October 2022, at least 70,000 people with disabilities were working for 14(c) certificate holders, earning less than the minimum wage.
But the report also highlighted a lack of data regarding the practice. Neil Romano, chair of the National Council on Disability, told the commission during testimony, “We collect data on things we view as important, and historically, we just don’t count people with disabilities.”
The number of people working in sheltered workshops for subminimum wage has steadily decreased in recent years. But the full elimination of 14(c) certificates has been slow, meeting resistance from vocational rehabilitation service providers that still view sheltered workshops as a justifiable system of employment for people with disabilities.
The Department of Labor explains the purpose of 14(c) certificates with a rhetoric of benevolent protection. It claims that they “prevent curtailment of opportunities for employment” for people whose earning or productive capacity is impaired by age, physical or mental deficiency, or injury, in order to justify low pay and segregated workplaces.
The 14(c) certificates are a holdover from an unjust moment in the early twentieth century, when people with disabilities were isolated from mainstream life, ostensibly for their own protection and shelter. But today, 14(c) certificates are in conflict with the Americans with Disabilities Act, signed into law in 1990, which asserts that disability is a natural part of the human experience that does not diminish a person’s right to participate in all aspects of life, including work.
The 14(c) certificates also contradict the U.S. Supreme Court’s 1999 decision in Olmstead v. L.C., which states that people with disabilities should live and receive services in the most integrated setting possible, appropriate to their needs.
There is no limit on how little employees in sheltered workshops can be paid, but wages are often determined with a brutal calculus that distorts the potential value of people with disabilities to the workforce. Federal regulations on subminimum wage suggest that the decreased productivity of a worker with a disability can be calculated and measured against the productivity of a nondisabled worker.
There is no limit on how little employees in sheltered workshops can be paid, but wages are often determined with a brutal calculus that distorts the potential value of people with disabilities to the workforce.
“The commensurate wage of a worker with a disability who is 75 percent as productive as the average experienced nondisabled worker, taking into consideration the type, quality, and quantity of work of the disabled worker, would be set at 75 percent of the wage paid to the nondisabled worker,” the FLSA states. The act also suggests that time trials might be used to determine the productivity of an individual with a disability. Commensurate wages are required to be reviewed at least every six months and adjusted to reflect prevailing wages for similar work. Stricter government guidelines instituted in 2022 require employers to provide information on alternative work possibilities or be forced to pay the minimum wage.
The Department of Labor’s Wage and Hour Division issues 14(c) certificates to businesses in four categories: for-profit businesses, hospital/residential care facilities, school work-experience programs, and nonprofit community rehabilitation programs. The overwhelming majority of businesses—93 percent, according to the commission—who hold 14(c) certificates are categorized as community rehabilitation programs. These businesses often act as both employers and service providers.
In 2016, researchers found that two-thirds of community rehabilitation programs provided non-work services in addition to subminimum wage employment. These services might include physical, occupational, or speech therapy and social opportunities that are funded through federal and state grants for vocational rehabilitation services. While the support services come from federal and state funding, subminimum wages come directly from labor contracts that rehabilitation programs secure with private businesses. These contracts, according to a representative of one community rehabilitation program, “operate like any other laborer contract.” Community rehabilitation programs might operate multiple work sites and are considered the official employer, even though the work is done for contracted businesses.
Community rehabilitation programs often claim that subminimum wage employment is part of a vocational training program, in which work for subminimum wage is completed as part of a temporary training program. Since 2014, all certificate holders are required to provide career counseling and other resources to enable employees to pursue competitively paid community-integrated employment. Yet, workers often stay in these programs for years, earning subminimum wage for their entire working lives.
Dougherty wanted more for Ryan. Since he graduated from high school, she has advocated for the gradual end of 14(c) certificates and has fought to change Ohio employers’ perceptions about the skills and potential of workers with disabilities.
She is now co-president of the Ohio chapter of the Association of People Supporting Employment First, or APSE. Community rehabilitation programs are under increasing pressure by advocacy organizations like APSE to transition to competitive, integrated employment rather than a model that segregates workers with disabilities from the broader workforce. Many programs are focusing on how to make this shift in a way that is best for employees and service providers.
Jan Dougherty is co-president of the Ohio chapter of the Association of People Supporting Employment First.
Seventeen states have taken steps to guarantee a minimum wage to workers with disabilities, but Ohio is not one of them. On August 31, 2022, Democratic state Representatives Brigid Kelly and Dontavius Jarrells introduced Ohio House Bill 716 to eliminate subminimum wages for people with disabilities in the state. Eleven state representatives, all Democrats, signed on as co-sponsors. Although both the Republican and Democratic parties announced at their 2016 and 2020 national conventions their support for ending the practice, no Ohio Republicans co-sponsored the bill, which never reached a vote.
For now, Ohio retains its practice of upholding 14(c) certificates despite the Ohio legal code stating that it is unlawful for any employer to discriminate against or limit the employment opportunities of a person because of a disability. According to Dougherty, plans are underway to reintroduce the bill in the state general assembly sometime this year.
Provided Photos
Ryan Dougherty, Jan’s son, works part time at a hospital unloading deliveries on an environmental services dock and helping wherever else he is needed.
Some community rehabilitation programs have opposed efforts to transition away from 14(c) certificates. The Ohio Provider Resource Association, or OPRA, currently has 178 business members who work to “collaboratively build a statewide service system that meets the needs of its ultimate customers: Ohioans with developmental disabilities,” according to its website. In Ohio, at least fourteen community rehabilitation programs have been granted 14(c) certificates to employ workers at subminimum wage.
“The Ohio state system has relied on 14(c) certificates in order to provide as many work opportunities to as many people as possible,” OPRA President and Chief Executive Officer Peter Moore tells The Progressive. “In practice, 14(c) certificates allow providers to offer more vocational and job training opportunities due to lower wages.”
OPRA also has a nonpartisan political action committee, or PAC. While it has no formal position on 14(c) certificates, OPRA was concerned that Ohio House Bill 716 did not provide enough time for people with disabilities, their families, community businesses, and service providers to transition away from the sheltered workshop model. Moore says that OPRA “does not want a rip-the-Band-Aid-off approach.” The bill offered Ohio businesses eighteen months to transition away from using 14(c) certificates, while federal legislation has proposed a four-year transition period.
In order for a transition away from sheltered workshops to be successful, more support and opportunities for people with disabilities in the general workforce are necessary. Moore emphasizes that enough job coaches and community employment specialists need to be hired to support a new model, as helping people with disabilities work in community-based employment can be staff and resource intensive.
After years of searching for the right opportunity, Ryan found a job in 2019. He now works twenty-four hours per week at a hospital, unloading deliveries on an environmental services dock and helping wherever else he is needed. A job coach checks in with him once a week to support him. The job has been a good fit for Ryan and matches his strengths and interests.
“Ryan likes physical work,” Dougherty tells The Progressive. “In a sheltered workshop he would have been doing piecework, putting pieces of mechanical parts into bags.”
Moore acknowledges that finding community-based jobs for people with disabilities can be challenging. But Dougherty has seen improvement. “Companies are calling APSE looking to hire people with disabilities,” she says. “Employers know that people with disabilities have different skill sets. They generally want to come to work. They love their jobs and boost the morale of their co-workers. There’s no excuse for us not to help people with disabilities move into the general workforce.”
As of last August, 37.6 percent of people with disabilities in the United States were employed. For people with intellectual and developmental disabilities, the number is even lower. (In 2017-2018, it was about 18 percent.) However, Vermont, which has phased out subminimum wages completely, has the highest employment rate for people with disabilities.
While 14(c) certificates discriminate against workers with disabilities, ending the practice involves more than just changing a law. A successful transition to competitive, integrated employment requires a deep belief that people with disabilities are valuable members of the workforce, and the value of an employee can manifest in diverse, unquantifiable ways.