subminimumwages@usccr.gov – We support Section 14(c) accommodations

Section 14(c) of the Fair Labor Standards Act (FLSA) is an ACCOMMODATION  – an accommodation for those with the most significant intellectual and developmental disabilities.  Section 14(c) is an accommodation that can be used by the employees choice in order to gain skills and maintain employment.

The purpose of Section 14(c) is to prevent curtailment of employment opportunities for those who may be unable to work in other settings.  Employment under Section 14(c) is not the first choice offered to people but it needs to be one of the alternative routes to training and employment for those who may need more time or hands-on support to learn a skill.

We all have a right to work  – many of us may need some sort of accommodation, if even temporary, at some time in our life, in order to maintain employment.  Why should those with significant disabilities not have that right too with Section 14(c) accommodation?

One of the major problems that has been agreed upon is that there has not been enough information for people to know what is even going on – who is working, where they are working, what they are doing or what they are earning.  Without this information, including that for those working in integrated employment settings,  how can we evaluate what has already occurred?  We need time to assess what has happened in areas that have eliminated choices and discover if those affected are satisfied with the changes.

Have these people been able to have equal opportunity, full participation, independent living, and economic self-sufficiency as they may have been promised by those who took their choices away?

The Wage and Hour Division  (WHD) of the Department of Labor (DOL) has recently taken steps to modernize its oversight and enforcement of the 14(c) program.  The process is now electronic and there is great opportunity to collect, aggregate, and analyze information which was not possible when paper applications were being used. WHD has already produced improvements with recent investigations and back wages being repaid to the employees.

We say “take a step back” and take time to gather information and evaluate.   We need to allow the improved oversight with investigational teams time to weed out the abusers of a system before we eliminate another accommodation and impose more restrictions for this population.

 

email subminimumwages@usccr.gov, with “I Support 14c” in the subject line. The e-mail may also be copied to federal legislators at www.usa.gov/elected-officials,

United States Commission on Civil Rights

USCCR Briefing Agenda – December 15, 2019

 

What is all this about sub-minimum wage?

Is it a “loop hole” or an accommodation?  It depends on how you use it and who you use it for and if you are following the regulations as intended.

Don’t fall for the argument that this is a loop hole – or at least if you do, stop exploitation of those who abuse the system rather than using it to promote employment and community engagement.

White Picket Fence

Section 14 (c) of the Fair Labor Standards Act (FLSA) was not intended to be a “loop-hole” to exploit anyone.  It was also not written to apply to whole populations of people with any type of disability.  The fact that a worker may have a disability is not in and of itself sufficient to warrant the payment of a subminimum wage.

The Special Minimum Wage Provision Section 14c of the FLSA is a vital tool that allows individuals with significant disabilities to work in an environment where they are compensated commensurate with their productivity, have friendships, support and purposeful activity – this can be in any work setting that they choose.  Often, it is in community settings which also enables the employee to build natural supports.

Everyone has a right to work. Support this right for our most vulnerable citizens!

Take a look at this fence – yes, there is a problem – what is the best way to fix it?  Tear the whole fence down or fix that one board?  My vote would be to fix the board and keep the fence.  The same with Section 14 (c) – fix the problem but keep the regulation.

As with many laws and regulations set up to protect people and provide choices and alternatives, there are always those who will exploit and abuse.  This does not mean that the system was bad or caused the exploitation but that those who abuse and exploited were doing evil actions.  Those are the ones that should be held accountable for their wrong-doing – not those who are in need of choice, alternatives and protections.

We should not punish our vulnerable citizens because there are others who will exploit them.  Without certain protections in place our vulnerable citizens will be at risk of much more danger.  What we need to do is call out the evil-doers and hold them accountable for their actions.

Department of Labor fact sheet.

 

 

Time to get back to work!

Now is the time to start planning for the upcoming legislative session.  As a community member, it is very, very difficult to be aware of these planning meetings in which paid advocates come up with their annual agenda.  Typically, the issues are not shared or discussed with the community and public until it’s a done deal.

This year, I contacted the King County Developmental Disabilities Administration regarding the legislative committee and planning sessions.  For some reason, the meeting dates and participants were not being shared on the website.  After my inquiry, I have received the information that I requested and an invite to the upcoming meetings.

I greatly appreciate the opportunity to participate in these planning meetings. With that being said, I am also disturbed by the gas-lighting that occurred at the meeting.

The issues that I raised at the meeting was the fact that in Washington State (an Employment First state) which means that a person age 21 or older with intellectual/developmental disabilities MUST try employment services first for 9 months before accessing community inclusion services under “Employment and Day Programs”  within DDA.

In addition, a person utilizing the employment supports (regardless if they are actually working at all or have minimal hours (5 or less a week) they are restricted from accessing community inclusion.  These two supports are mutually exclusive.

Many times these people have no community engagement or opportunities for meaningful interactions during this first 9 months or afterwards.  When these people are left without active supports, they lose skills and become more isolated and we believe that these supports should be able to be accessed concurrently (as many other states offer them.)

There were several representatives from The Arc of King County (paid advocates) at the meeting in addition to representatives from the state DDA, King County DD Admin, and representatives from other agencies which serve people with IDD.

The Arc of King County Director of Advocacy and the Arc of King County Family Engagement Coordinator both spoke up and stated that I was wrong in my statement that people receiving employment supports were not able to also access community inclusion.  I questioned when that change had been made and I was told that it was made several years ago and was in the waivers.

Being “corrected” by these paid advocates and “experts” at this public meeting was really a slap in the face.  They provided false information with their attempts to discredit what I was advocating for.

I followed up with emails to both of these people and to the King County Administrator who was running the meeting.  When questioned and asked for resources to back up their comments, both of these people wrote back to me that I was CORRECT in what I had said at the meeting.

What was the purpose of them speaking out against my comment?  What was the reason that they provided false information to those in the legislative planning meeting?

Employment Programs – DDA Fact Sheet 2019

Community Inclusion – DDA Fact Sheet 2019

 

 

Congratulations, Thomas!

Thomas was awarded a badge at work today for his 4 years of employment at Lowe’s Home Improvement!  He was so happy.  He loves his job, his co-workers, job coaches and customers.  We often run into his customers when we are out and about in the community doing other things and he gets so excited about seeing them!

 

 

Thomas was able to secure this job through the King County School 2 Work program.  They had a pilot program several years ago in which they worked with students that would have been considered the more “difficult to place” in community jobs.  I’m so glad to say that we were able to appeal to allow Thomas to participate in the program.  Thomas was also the only one in his group to have a job before they “graduated.”  While he still works for the same company, the job has changed as he has gained skills and they have discovered the great abilities he has which he has put to good use there.

Supported employment (or Community Integrated Employment – CIE) is one option that people with intellectual and developmental disabilities can choose to utilize if they want to try to work.  Supported employment is very individualized and may take many months to find a job that is the right fit for the person .   Job supports are also individualized – some people need 1:1 support throughout their working experience and others may just need a job coach to check in once a week to once a month.

Supported employment is ideal for Thomas.  He also lives in supported living so he has private transportation to and from work each morning for his hand-to-hand transfer from care-giving staff to job coach.  Given that Thomas also has medical treatments that he needs 3 x week, his care-giving staff then pick him up from work and take him to his doctor appointments.  This makes a full morning for Thomas – he’s ready for lunch by the time he gets back home.

Thomas does earn a bit above minimum wage in his job which is paid by his employer.  The funds for this are funneled from the Federal/State government through the county which pays the vendors for the job supports.  With Thomas typically working 7-9 hours a week, he works more hours than average for someone with his support needs.

While this is a great choice for Thomas, it is not for everyone.  We need to keep alternative choices and opportunities available for those with differing needs and skills.  For instance, there is group supported employment which many people prefer.  Often times the employees in these jobs may make less than minimum wage with a special certificate issues from the state (they are typically called 14 c certificates) Many people prefer these jobs since they are with their friends and enjoy the group experience too.

Our state has already abolished all pre-vocational types of jobs but in other states these may still be a choice.  We need to keep these alternative choices available for those who choose this type of job training.  We can’t talk about person centered planning and then remove choices.

I need to add that is it only due to the “village” that supports Thomas that he is able to be so successful in his achievements:  His village is his family and friends, Provail (employment vendor), Alpha Supported Living (supported living agency) in addition to his co-workers at Lowe’s.

 

 

More subminimum wage – can we just get real

EHB 1706 sits in the Senate Rules Committee.  As long as it’s in Rules committee there is still some hope that reality will set in that this bill not only short-sighted but harmful.

I am writing with some major concerns regarding issues with EHB 1706. While this bill may have started with good-intentions, it is extremely short sighted regarding the complexity and collaboration needed in any supports addressing the needs of our disabled population affected by significant intellectual and developmental disabilities. Contrary to what has been said in hearings, it is not common practice to pay disabled people less than minimum wage. It is not common practice to use special certificates for a commensurate wage.

Special certificates for a commensurate wage are not the same thing as “warehousing people in sheltered workshops”. Special certificates do allow a choice and alternative for those who may not be able to work independently in a competitive market or for those who enjoy the camaraderie of working with peers.

We no longer have sheltered workshops in our state but these certificates are very much desired by those who chose to work in group integrated employment in community settings. Person-centered planning and adherence to the Olmstead decision regarding choice are issues that would be violated if this alternative was removed from a smorgasbord of opportunities that people with significance disabilities may choose from. Again, the issue is choice. No one is forced to use these and they are not common practice – but for those who do choose to use them, this opportunity can be life saving. Why take this away?

Other concerns regarding the issues of supported employment in our state – if the support is considered only short-term until the employee is able to be independent or the employer builds in enough “natural supports” so that the employee does not need a job coach, this will lead to even more unemployment in this population. Unfortunately, I know this too well given issues with my son who works in supported employment with a 1:1 job coach. This is not something that he will “outgrow” but a support that he will need the rest of his life. Is he going to be the victim of this policy when it is decided that job supports are no longer needed because he’s had enough time to learn the job?

It is not common practice to pay people with disabilities less than minimum wage. These special certificates are for specific employers, specific jobs, specific employees and for a specific, limited time. It is common practice to pay people with disabilities minimum wage or higher but their work hours are greatly reduced. For instance, my son works in supported employment in a competitive integrated job – he earns $16.58 an hour – a great wage for him. He only works 7.5 hours a week. This is also great for him because of his disability – working more hours a day would be disastrous for him.

While this bill seemed to have good intentions – it is extremely short sighted. There was a failure to even address the recent JLARC report which addresses how few hours disabled people work and less than 10% make a “living wage.” DDA intends that its services provide quality of life benefits for clients, such as choice, relationships, integration in the community, and competence., however there are no evaluations that are done to measure if this outcome is met.

We hear from an affiliate of the national Arc Agency that Washington ranks highest percentage of “employment and day services clients” enrolled in employment services. (87%) But – “Not all clients who receive employment services have a job” which is very clear when scouring the data reported by the county contracted providers ( https://www.statedata.info/washington-ddd/) When one of the affiliates testified that working under a certificate was something that was forced on them by “well meaning do-gooders”, it inhibits their growth as employees, chances of advancement and their ability to support themselves and live off of public assistance. This person is speaking from a totally different reality and perspective than that of the people who have chosen to work under a certificate or of a person, like my son, who while able to learn and function with appropriate supports, will never be independent, able to support himself or live off of public assistance. We need to face reality and this bill is not the way to do that.
Below are just a few bullet points from the JLARC report that need to be taken into consideration:

JLARC staff analyzed DDA data for the 6,975 clients enrolled in individual supported employment during fiscal year 2018.

• 675 clients (10%) earned more than the federal poverty level ($12,140 per year for a single person).
• Earnings vary by support needs. 2 Clients with lower support needs tend to earn more wages.
• 44% of clients with high support needs were unemployed. This is double the rate for clients with medium support needs and five times the rate for clients with low support needs.
• Clients with high support needs who were employed worked 21 hours per month on average. This is less than half the average hours for clients with medium support needs, and a quarter of the hours for the clients with low support needs.
• 99% of clients with high support needs earned less than the federal poverty level.

Addressing this issue only from the Department of Labor viewpoint totally misses the collaboration needed to provide appropriate supports for our disabled community members and I find this approach extremely harmful to those people it was supposed to help. The misinformation used and biased opinions heard regarding choices and alternatives for those with significant disabilities has been ridiculed and dismissed as “living in fear”. I and others who live this life challenge you to listen to those who are actually affected by these policies – not necessarily the people you are hearing from. We need an opportunity to be heard too but when we are censored and blocked from the affiliate agency, it appears to legislators that we do not exist.

Our hope is that this will change. We are gathering people who have first hand knowledge of the issues and how these policies are actually hurting, rather than helping those we live with, care for and love.
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What does L&I know about DDA funding?

I had an interesting discussion with one of the DDA agency contacts regarding data on employment for DDA clients.  It was very enlightening and also very concerning at the same time.

The fact that there really is no accurate, up-to-date information is cause for concern.  The data on the 2018 DDA Caseload and Cost report is incorrect – but at the same time, data that other organizations are regurgitating are also incorrect.  In fact,  Washington State Labor & Industries, which apparently does not communicate with DDA is providing information to legislators (Representative Noel Frame and Senator Emily Randall, maybe others too) stating there are less than 350 people with special certificates in the state and one reason that the fiscal note for HB 1706 is that it apparently is a fiscal note for Labor & Industries.  That makes sense it would be zero because not needing to review and approve certificates means less work and no funds will be needed.

The US Dept. of Labor lists 1051 federal special certificates for Washington.  The DDA representative said that there may be around 500-600 people who are earning less than minimum wage and that not all have special certificates through L&I for various reasons.  Also, some of these DDA clients  may be self employed and that adds another piece to the puzzle.

Now, if L&I communicated with DDA or other organizations and agencies, there would be a different bill and a different fiscal note. But until the silos are broken down, things will not improve.

What I did learn tough is that the contracted providers with the counties upload their data every month to the website.  DDA checks it to ensure data is being uploaded correctly – corrections are to be made but the providers can only access the website once a month so corrections need to wait until the next month when the provider uploads again and at the same time they should go through and make all the needed corrections.  Information is constantly changing but the further out one is from a point in time, the chances are that the information will be more accurate.

It was good to get validation that the information as shared on the DDA State Data website which has the category “gross wages > Zero” should not be translated as “wages minimum or greater” as they have been translated somewhere along the line from DDA to The Arc of King County who shared their data.  Hopefully this will be corrected and that will be a start.

But, no matter how many people are actually earning a subminimum wage, taking away that choice of theirs, if it is their choice, is a violation of their civil rights.  No one knows unless those affected people are asked and I would like to see the information regarding the choices of those actually affected now and also I would like to hear from the people who have been forced from their jobs in the past two years during this transition.  Those are the voices that matter.

wa-dda-employment-data-king-county.jpg

 

DDA data used by Arc of King County

“Facts” from The Arc of King County

The Arc of King County published Some facts about the subminimum wage bill on their advocacy blog today  – we say – check their “facts”

The Developmental Disabilities Case load and Cost report has data that is very different than what the Arc of King County reports – take for instance the number of people in supported integrated employment who work and make minimum wage.

DDA reports  8102 people are in the supported integrated employment services program, 3678 (45%) make at least minimum wage, 2294 (28%) make less than minimum wage and 2130 (27%) do not make a wage.

The Arc of King County reports – “Most people served by individual supported employment (the other 92 percent getting DDA employment services) already make minimum wage or better.”

DDA reports that 45% of those in supported integrated employment make minimum wage or better.

The Arc of King County reports “Most people served by individual supported employment (the other 92 percent getting DDA employment services) already make minimum wage or better.”

A national trend?  We don’t think so.  Of great importance is that there has not been evaluations done for quality of life, meaningful life or job satisfaction/employment rates since some of these states have made changes.  As policy makers, one would think that evaluations are important before making decisions.

The Arc of King County reports Vermont closed its sheltered workshops in the 1990s and abolished subminimum wage certificates for people with disabilities. New Hampshire, Maryland and Alaska all passed legislation to abolish subminimum wages for people with disabilities

Review Magical Thinking for some research and insights from New Hampshire and Maine on the issues of eliminating subminimum wage.

From Alaska :  While the Employment First movement has picked up in recent years, it does pose new challenges in how providers should tailor job-training services for each person.

One approach has been to give workers a job coach, who goes to work with them during their first month on the job and helps them learn the ropes.
(from 2018 – no evaluation of the outcome of their legislation yet )

These are just a few of the facts that have been checked – there are more.

Please ask The Arc of King County, Representative Noel Frame, Activist Shaun Bickley or any of those organizations on the list of organizations which support this bill,  about these discrepancies.

Ask them about the numbers of hours that employees work a week, ask them who pays for the job coaches and supports that will be ongoing for many of the employees to keep their jobs.  There are too many unanswered questions or concerns that have not been addressed for this bill to advance without causing more harm than good.