Like many others, Matt Capps relies on his non-competitive employment program for purpose, community, personal support and income. A misguided quest for “civil rights” would effectively bar countless adults with severe cognitive, functional, and behavioral disabilities from the workplace.
Advocates for the severely disabled are encouraged to submit comments re the urgent need to retain non-competitive job options by the December 15, 2019 deadline, to subminimumwages@usccr.gov. NCSA sent the following letter in advance of the United States Commission on Civil Rights November 15, 2019 briefing. See the Commission’s announcement here.
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National Council on Severe Autism
PO Box 26853
San Jose, CA 95159
info@ncsautism.org
ncsautism.org
November 14, 2019
United States Commission on Civil Rights
Via email: subminimumwages@usccr.gov
Re: November 15, 2019 briefing—the urgent matter of retaining non-competitive employment options for Americans with severe cognitive, functional and behavioral disabilities
Dear Commission on Civil Rights,
To retain and expand opportunities for America's rapidly growing population of adults with intellectual disabilities (ID), including severe autism and ID, it is imperative not only to retain the FLSA 14(c) option, but to expand it to ensure that Americans of all cognitive and functional capacities have the opportunity to engage in meaningful work.
We fully understand and appreciate that some individuals with disabilities have been paid less than their productivity warrants—clearly, justice requires that those individuals receive competitive wages. However, a substantial portion of the disability sector—namely, those with substantial cognitive and behavioral impairments who lack the ability to engage in work at a competitive level—require noncompetitive, highly supported options.
In no way does Section 14(c) violate the civil rights of people with more severe forms of intellectual disabilities. In fact, it does the opposite: it advances their rights adn well-being by allowing them programs and opportunities to work that would otherwise be denied them due to their low productivity and often expansive needs for supports and accommodations; it offers them a workplace with the supports they need, along with protection from termination.
All Americans should have access to work, but elimination of 14(c) de facto excludes our severe ID population from the workforce based on the fantasy that all intellectually disabled adults could achieve competitive employment. A few more key points:
Given the staggering increase in the population with severe autism, we see a clear imperative to create vastly more, not fewer, options for day programming and supported forms of employment. In California, the population of adults with developmental disability type of autism will grow nearly five-fold over the next 20 years. Only a small portion of these adults can achieve competitive employment. The rest? We need to maximize their person-centered options, including work that pays special wages based on less-than-competitive productivity.
Subminimum wage work is but one benefit accruing to the significantly disabled clients. Work programs serving adults with significant intellectual disabilities are typically run by mission-driven, not profit-driven, nonprofit organizations. These adults are typically also beneficiaries of supervision, therapeutic care, training, and social and recreational programs funded and provided by the nonprofits. It can be very costly to serve these disabled individuals: they often require high staff ratios, intensive supervision, crisis intervention and ongoing coaching. A standard job supervisor is unlikely to treat seizures, change diapers, or handle getting punched or scratched, to put it mildly. The extremely valuable, though non-monetary, therapeutic dimensions should be considered before over-simplistically labeling subminimum wages as discriminatory.
14(c) programs serving the significantly intellectually disabled provide a protected form of employment unavailable in the free market. “It’s not an employer-employee relationship,” explains Tracey Brown-May, Director of Advocacy, Board, and Government Relations at Opportunity Village in Las Vegas. “People employed here who are earning 14(c) wages are not at risk of being fired.” In other words, the employee’s needs comes first, and profitability is not the prime endpoint. The nonprofit work is typically tailored to the particular skillset of the worker, a customization unavailable in the free labor market where individuals are expected to conform to pre-established performance standards. Disability advocates often accuse 14(c) wage programs of exploiting or abusing their disabled workers, but for severely challenged adults, the opposite is almost always true— the programs often protect clients from exploitation and abuse by offering protected employment.
No person with a disability is forced into 14(c) work, and wages are set carefully. The provision authorizes employers to pay specially tailored wages to employees with disabilities only when the employer can demonstrate, through an exacting certification process, that the worker’s productivity is compromised by the disability. The certification requires a careful calculation of fair wages based on productivity and continuous re-evaluation of the employee’s capacities to ensure wages keep pace with skills. And of course the worker would also need to agree to the wage. Programs must be re-certified every two years by the Department of Labor, which has the duty to identify and remedy any abuse or exploitation it finds during its reviews.
Most workers with disabilities, for example physical disabilities, are already in the competitive market. Retaining a 14(c) option does nothing to negate or undermine expansion of competitive employment for those capable of that option. Both work options can and should peacefully coexist to serve a dramatically diverse disability population. As Harris Capps, the father Matthew, who loves his job in a Ohio work center, states, "If a higher functioning individual is able to get a job providing a mandated minimum wage, surely, they already have the minimum wage law in effect to protect them."
When non-competitive workshops close, participants often end up idle at home, lonely and unemployed, or if they work at all, with decreased job hours and decreased total wages. Where is the data suggesting better outcomes for the severely disabled who are denied the opportunity to work? We have seen none. Slashing their jobs, leaving them to languish at home, detached from any community of peers, with no viable alternative discriminates against our most vulnerable. The ostensible “liberation” of requiring competitive employment obviously strands our most vulnerable citizens. At a minimum, 14(c) must remain intact for our subset who lack capacity for competitive employment.
Finally, as representatives of a popuation that would be most harmed by elimination of noncompetitive jobs and workplaces, and as outspoken proponents of 14(c) options, we were stunned to learn we were not invited to present at this session. It appears this briefing was designed to hear just one side of the story, from the more cognitively capable sector of the disability community. Thank you for your consideration of our comments.
Very truly yours,
Jill Escher
President
cc: Tom Ridge