How To Ensure a High Unemployment Rate for Individuals with Down Syndrome.

The U.S. Commission on Civil Rights wants Down Syndrome individuals to have to compete with everyone else for jobs.

|The Volokh Conspiracy |

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.

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  1. Tldr; Progressives are developmentally disabled.

    1. Yet somehow still smarter than conservatives.

      1. If you read what the progressives decided in the article, there’s no way you can come to that conclusion.

        1. Yes he can. He’s a progressive.

          1. No, I just know enough below-average conservatives.

        2. The people who “decided” in the report were members of the bipartisan United States Commission on Civil Rights. The Commission has eight commissioners, four appointed by presidents (2 D and 2R), 2 by the President Pro Tempore of the Senate (with the recommendation of the Senate majority and minority leaders), and two by the Speaker of the House (with recommendations of the House majority and minority leaders).

          President Obama’s appointees are Catherine Lhamon (D) (Chair) and Debo Adegbile (D). President Trump’s appointees are Stephen Gilchrist (R) and J. Christian Adams (R). The Senate appointees are OP Gail Heriot (I) (appointed by Senator Byrd and later Patrick Leahy) and David Kladney (D) (appointed by Daniel Inouye and later by Orrin Hatch). The House appointees are Peter Kirsanow (R) (appointed first by President W. Bush but reappointed by John Boehner, and later Steny Hoyer) and Michael Yaki (D) (appointed by Dennis Hastert and later by Boehner and Paul Ryan).

          Gail Heriot (I) and Peter Kirsanow (R) dissented from the report. Ostensibly the rest of the commissioners–including both of President Trump’s appointees. Is it your belief that all of the Commissioners are both “progressives” and speak for progressives?

          1. “Gail Heriot (I)”

            Still masquerading unconvincingly as an independent, Prof. Heriot, in hopes of gaming the system once again with your disingenuous, low-grade, partisan scheming?

            And for what? A paltry platform of backwardness and intolerance?

            1. Argument ad hominem. The refuge of the incompetent.

              1. Which, by the way, was known as long ago as Aristotle. Whom you will no doubt dismiss as another right-wing clinger.

              2. That’s not ad hominem. RAK is not saying Gail is wrong because she is bad, he is saying she is bad because she is wrong.

                (And also that it’s very silly that she says she’s independent considering all of her positions, which I agree with)

                1. I am asserting that the Civil Right Commission episode demonstrates Gail Heriot is a liar and cheater of despicable character. Her partisan, paltry scheming marks her a disgusting clinger. She is a comprehensively lousy person any decent, patriotic American would shun.

      2. “somehow” = arrogance and self-delusion

  2. In the late 90’s I employed thirty or so developmentally disabled people to sort incoming supplies from China (floppy disks). They were not dramatically cheaper, as we paid the organization that sponsored them effectively minimum wages for each and they took a cut for overhead and transport p, etc. They were, almost to a person, cheerful and efficient and if the floppy hadn’t died, we would have continued it.

    I would not have cancelled it if I had to pay them more. It felt good to help.

    1. I can understand that you didn’t do it to save money and having had some experience wouldn’t necessarily have ended the program if costs rose. But as you point out, the cost was already more or less the equivalent of minimum wage and it was the nature of the task you had that proved conducive to the arrangement which ended when the task ended.

      Clearly the differential treatment is an incentive to employers to consider employed these individuals for tasks that may seem on the margins for the this working population. It’s not like you created jobs to keep the program going when the arrangements changed.

      I appreciate your retelling your experience and admire the arrangment you made in conducting your affairs but it only vindicates the overall concern that the minimum wage not be a barrier to employment. That is a general proposition writ small in this case.

    2. I managed 20 recent American college graduates and most would come in hungover and then in the afternoons they would start bickering with each other and little work would ever get done…and that was before smartphones were invented.

  3. 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.

    It’s nice to be able to have an honest discussion about the effect of minimum wage laws on employment. The phenomenon is of course a continuum that cuts across a lot of people outside the Down Syndrome population, but it’s been turned into a third-rail issue.

  4. Card Kruger study of the fast food employment in NJ after the raise of the state minimum wage.

    In spite of the numerous flaws in the study claiming no effect on unemployment. The study did acknowledge the negative effect on teenage employment

  5. What is the status of state labor laws for disabled?

  6. Making more people unemployable and thus dependent on government assistance is a feature, not a bug

    1. Whether or not developmentally-delayed individuals are dependent on government assistance has very little to do with their income.

  7. Professor Heriot,

    I agree with your conclusion. Minimum wage laws do not help workers generally, and it is unsurprising that they do the most damage to the most vulnerable members of the workforce. Your dissent is important. I think it was a mistake to open your dissent with “In our Age of Wokeness[.]” It unnecessarily invites culture wars into an important policy decision.

    I also don’t understand your abandonment of “morality”. The entire reason we should rely on “practical economics” is to support moral ends, here our collective desire that all “adults with Down syndrome and other serious intellectual and developmental disabilities . . . have happy and fulfilling lives.” Maybe I misunderstood you, but why isn’t this a moral end? If a moral end is frustrated by an ill-conceived means, then the means itself is not morally preferable.

    Anyway, thank you for your important dissent. I hope one day your position is vindicated.

  8. This isn’t about the people with Down’s.

    This is about protecting the wages of people who don’t have it. Even if they are doing a job that quire literally someone with Down’s could do.

  9. At least two grocery stores I know of in Houston employ a few people with some level of cognitive “differences” for stocking, bagging, and even at the cash registers. Considering the goodwill these workers engender among customers, they should be paid minimum wage, voluntarily, by employers with any good business savvy.

    That said, the current federal program does seem to make sense as an inducement to get these people hired, contributing, and in the public consciousness, per Heriot’s dissent.

    Unhappily, though, the argument, instead of being over minimum wages for workers, will soon be about the minimum number of human employees to be hired by various sectors of business. “Pandemic” 2020 is being called “Year One of the Roboticized Economy.” Exponentially increased automation is just one dramatic structural change being promoted by the WEF’s “Great Reset Agenda for the new global socio-economy.

    seekingalpha.com/article/4352540-robotics-2020-year-one-of-roboticized-economy

    1. “At least two grocery stores I know of in Houston employ a few people with some level of cognitive “differences” for stocking, bagging, and even at the cash registers. Considering the goodwill these workers engender among customers, they should be paid minimum wage, voluntarily, by employers with any good business savvy. ”

      If you have good employees who make your customers happy, they should be rewarded for this. Underpaying people for what they actually contribute is how you get unhappy employees who spread their unhappiness to your customers. This is true nor matter what wage is under discussion. If you cheap out on any part of your supply chain, your customers will pick up on your cheapness and it will be reflected in what they’re willing to pay you for your products and/or services.

  10. Well, since according to one report, 67% of pregnancies where down syndrome is suspected end in abortion, maybe the Progressive solution for this problem is to get that number up to 100%.

  11. Of course sub-minimum wage is nothing like a living wage. And the availability of sub-minimum wage workers will depress wages for other workers.

    Solve both problems by creating a new category of payroll tax, paid only by employers. The rate should be adjusted to raise funds sufficient to make up the difference between the sub-minimum wage and the minimum wage, for all disabled workers in the program. Then they can work with dignity, and have some semblance of paying their own way. A few, or maybe more than a few, will be able to leverage the work experience to earn more, on their own. All to the good.

    1. The availability of subminimum wage workers will depress wages for other workers?
      True only if the Down folks are as productive as regular employees, which is assumed to be false as the justification for the sub-minimum program. If a Down employee is as productive as a “regular,” he or she could do a regular job and earn regular wage. I’m not seeing any accusation of employers abusing the system by hiring Down employees and paying them less and thereby gaining an unfair advantage over the competition.
      And no thank you to a “new category of payroll tax.” Payroll taxes are not ever “Paid only by the employer.” They are always and everywhere paid by the employee and the company’s customers. If the company manager can not pass on an increased cost, he or she will not hire the employee, or will hire and pass on the cost as an increased price to the customer. Either way, less productivity, fewer employees, fewer and more expensive products.

  12. Good employers pay their employees commensurately with their contribution to the enterprise. Cut corners and watch as all your good employees leave for better jobs, taking their skill and abilities with them to make money for your competitors.

    This is Warren Buffett’s secret to becoming a billionaire… buy a profitable business, then put good people to work running it. Make sure they have the resources they need and then let them make money for you.

    1. Good employers pay their employees commensurately with their contribution to the enterprise.

      This is an eccentric definition of the word “good”.
      Wise employers pay their employees what the market will bear.

      Cut corners and watch as all your good employees leave for better jobs, taking their skill and abilities with them to make money for your competitors.

      If you believed that, you should argue against minimum-wage laws, since they keep good employees working for bad employers.

      1. “Wise employers pay their employees what the market will bear.”

        No, just the opposite is true. If you aren’t paying your employees what they’re worth, they’ll know it, and if they know it, so will everyone else. Once you establish your position in the market as the “cheap” offering, your customer(s) will demand that your price be lower. This is true if you’re using underpaid labor or lesser materials. You’re confused because when they teach this in high school economics, they start by assuming an ideal market. In the real world, there mostly aren’t any ideal markets.

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