The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
A few weeks ago, the U.S. Commission on Civil Rights released a report entitled Subminimum Wages: Impacts on the Civil Rights of People With Disabilities. The report calls for the elimination of a federal program that allows specially authorized employers to pay severely disabled employees less than the minimum wage. Overwhelmingly, the employees involved have Down Syndrome (or a similarly severe developmental disability).
At first blush, that may sound nice. But since it will make it impossible for many of those with Down Syndrome to get any job at all, "nice" is not really the right word for it.
I therefore dissented from the report. So did my colleague Peter Kirsanow.
Prior to the report's publication, the Commission was deluged with 9,700 comments from the public—the highest number the Commission has ever received. Of those, the overwhelming majority were from parents or other close family members of an affected disabled individual. Almost all of them disagreed—often vehemently—with the Commission's recommendation. But the Commission was convinced it knew more about their loved one's situation than they did.
Interestingly, the Commission waited until page 99 of the report (by which time nearly all policymakers have stopped reading) to mention that 98 per cent of those who submitted comments opposed its conclusion.
The program at issue was created by Section 14(c) of the Fair Labor Standard Act. It was adopted in 1938 at the same time as the first federal minimum wage. Back then it was believed—no doubt correctly—that a federal minimum wage would cause many disabled persons to become unemployable. An exception was thus created. A limited number of employers would be permitted to obtain certificates authorizing them to pay disabled persons something less than the minimum wage. Under current law, how much less depends upon stringent tests of each such employee's productivity, which must be conducted every six months. It is a heavily regulated program.
The program is, of course, entirely optional. Right now the law allows eligible individuals (or their guardian) a choice. They can take a mainstream job at a higher wage if they prefer that and can find an employer willing to hire them. If they prefer 14(c) employment (at a sheltered or non-sheltered workplace) and have a willing 14(c) employer, they can choose that.
The unemployment rate was extremely low in early March when we undertook the field research for this report. Even then, advocates of shutting down the 14(c) program admitted that it would result in fewer jobs. I suspect it would be worse now.