Testimony of Curtis Decker, Executive Director, National Disability Rights Network for the Health, Education, Labor and Pensions Full Committee Hearing

Preventing Worker Exploitation: Protecting Individuals with Disabilities and Other Vulnerable Populations

I would like to thank Senator Harkin and the other Senators here today for holding this important and timely hearing.

NDRN is a nonprofit membership organization for the federally mandated Client Assistance Program (CAP) and Protection and Advocacy (P&A) systems, created by Congress in the 1970’s to protect the rights of children and adults with disabilities and their families.  With presence in every state and beyond, the CAP and P&A systems offer an advocate and legal voice to individuals with disabilities and aim to uncover and eliminate maltreatment and ensure compliance with disability laws.

The concept that individuals with disabilities should be earning less than their able-bodied peers is a throwback to the 1930’s and the creation of the Fair Labor Standards Act, during a time when veterans and others with physical disabilities were seeking factory jobs in the manufacturing industry.  But our world has changed significantly since the 1930’s.  Services and supports for individuals with a disability that were only a dream in the 1930s are now a reality.  Should we be stigmatizing individuals with a disability by singling out these workers?

Many employers, like Walgreens and others have proven that individuals with a disability are employable at minimum-wage and above.

If the § 14(c) waiver did not exist, is it something Congress and the disability community would devise today?  I believe the answer to that question is certainly “no.”

That said, we must be cognizant of the consequences an immediate abolishment of Section § 14(c) would have on current employees and employers, as well as individuals with severe intellectual disabilities who may not be otherwise employable.

We must work together in the short term to improve the § 14(c) program while phasing out the program over time.

NDRN has been working in conjunction with the Iowa Protection and Advocacy program regarding the recent discovery of frightful work and living conditions for employees at Henry’s Turkey Farm in Atalissa, IA.  While the exact facts surrounding the Atalissa incident are still unclear, it’s impossible to ignore the systemic flaws that have been uncovered. It seems that loopholes and a lack of oversight enabled Henry’s Turkey Service to take individuals with disabilities and turn them into profitable entities.  This is outrageous. Henry’s Turkey Service is certainly the catalyst for this hearing, but updating employment regulations for individuals with disabilities is long-overdue.

But, this is not a new issue.

A GAO report in 2001 highlighted many shortcomings in the Section § 14(c) waiver program, and since then, some progress has been made to improve the program.  Among other improvements, the Department of Labor has worked to eliminate redundancies in their Section § 14(c) records and better verify their accuracy.  The Wage and Hour Division is now tracking the number of staff hours their investigators devote to the special minimum wage program and using this information to better manage the program.  Additionally, employers are now provided with written guidance for § 14(c) requirements and other technical assistance.  While the Department of Labor has made positive steps to improve Section § 14(c), Henry’s Turkey Service lingers as an ugly reminder that more still needs to be done.  There seems to be a failure of adequate oversight and compliance of § 14(c) waiver sites.  To address this, NDRN offers the following recommendations:

• The guidelines for employee evaluations must be more explicit and standardized.
• A system of transparency must be enacted.  Current data is not easily accessible.  Making a FOIA request is a lengthy process and requested information cannot be received in a useful time frame or fashion.
• Critical  information about the § 14(c) program should be on the Department of Labor’s Web site, and presented with clarity and in such detail that red flags can be detected.  For example, for worksites with § 14(c) waivers, the number of certificates, percentage of the workforce operating under certificates, and productivity level of each of those individuals should be easily accessible.
• Businesses that held § 14(c) certificates and discontinued the program should also be posted.
• Clearly enforcement of the § 14(c) program needs to improve.  However, just increasing enforcement of these provisions by the Department of Labor is not enough.  Independent oversight of the program provided by the Client Assistance Program (CAP) and Protection and Advocacy (P&A) systems is warranted.
• CAPs and P&A’s should be allowed access to § 14(c) sites to ensure individuals with disabilities are being treated fairly, without having to maneuver difficult hurdles.

Another issue of concern is the garnishment of wages to pay for room and board charges by the employer.  To address this concern and expose violations, the charges for room and board should be reported alongside wage and hour information.  This would disincentivise exploitative room and board charges which re-claim most of or all wages paid to employees.

The role of the Office of Disability Employment Policy (ODEP) at the Department of Labor should be expanded to include working with the Wage and Hour Division in oversee enforcement of § 14(c) wage certificates and the proper inclusion by employers of board and lodging as part of wages paid to individuals with disabilities.  ODEP’s experience working on disability and employment issues could be better utilized to assure the proper implementation and enforcement of federal employment laws under DOLs jurisdiction which impact  individuals with disabilities, such as § 14(c).  In fact, ODEP has already funded an analysis of the § 14(c) wage certificates in terms of Community Rehabilitation Providers, and expansion of the role of the office to assisting with enforcement is a logical means to address the shortfall in oversight by DOL.

Lastly, for employers to take their responsibilities more seriously, stiffer penalties must be enacted.  As it stands, the only penalty for underpaying employees under this program is back-pay.

The Section § 14(c) waiver program is just one piece of the puzzle of employment for individuals with disabilities.  In order to reach a comprehensive solution, we need to ultimately examine a number of issues including access to supports and services, disincentives of Social Security to work, and wages is necessary.

Thank you again for holding this hearing.  I look forward to working with you and your colleagues in the House and Senate to address this issue.