Dear Commissioners:
Section 14(c) of the Fair Labor Standards Act is critically important in preserving employment and job training opportunities for thousands of Americans with significant intellectual and developmental disabilities.  Eliminating Section 14(c) would violate the civil rights of these men and women because it would deprive them of the opportunity to choose the vocational setting that best meets their needs.
 
As you know, Section 14(c) permits employers to receive a certificate from the Department of Labor allowing them to pay individuals with disabilities a specialized wage based on the individual's ability to perform the job.  Thus, Section 14(c) strikes an important balance.  It encourages employers to hire individuals with significant intellectual and developmental disabilities, while preventing discrimination and abuse by requiring the employer to pay the individual a wage commensurate to the prevailing wage for the job, taking into account that individual's abilities.  The specialized wage must conform to the Department's regulations, be reviewed regularly by the employer, and adjusted as the individual's ability to perform the job changes.  Finally, an individual with disabilities or a third party may file a complaint with the Department of Labor at any time, if an employer fails to comply with the Department's regulations.
 
Thousands of individuals with significant intellectual and developmental disabilities across the country are currently employed under Section 14(c).  Most are employed by not-for-profit work centers specifically designed to provide these men and women with experience and an employment path that could lead them to competitive integrated employment.  These work centers' sole purpose is to serve individuals with significant intellectual and developmental disabilities.  The elimination of Section 14(c) would cause many of these work centers to close because they cannot afford to pay the men and women they serve the minimum wage on top of incurring the cost of providing the necessary supports.  Such closures would cause serious harm to the individuals served by these programs.
 
I am the Executive Director of Misericordia.  Misericordia is a provider of residential and vocational services to over 600 men and women with significant intellectual disabilities.  During my 50 years leading Misericordia we have continually developed innovative programs all designed to provide the men and women we serve a meaningful and fulfilling life, a life of dignity.  Today, Misericordia operates several work programs including a restaurant, a coffee packaging operation, an art program, a bakery, a recycling center, a laundry, and a green house.  All of these programs lose money.  None of them are operated at a profit even though they use 14(c) certificates.  The sole purpose of these programs is to provide work opportunities to the men and women Misericordia serves and to provide the training and experience needed to obtain competitive integrated employment.  These programs also allow these men and women to enjoy the dignity of work and the self-esteem that comes with being a contributing member of their community.  If Misericordia were required to pay the prevailing wage the cost of these work programs would triple.  Misericordia would be forced to employ fewer men and women and those it continued to employ would work fewer hours.
 
These lost jobs would not be replaced by jobs paying the prevailing wage.  Misericordia already uses its best efforts to obtain competitive integrated employment for the men and women who choose to seek such employment.  Approximately 100 of Misericordia's over 600 residents have competitive integrated employment.  However, the intellectual, medical, and behavioral challenges of the remaining individuals served by Misericordia preclude them from holding a job at the prevailing wage.  For many of these men and women, their only option for employment is in Misericordia's work program.  Even those who obtain a job at the prevailing wage, these jobs are for only about 15 hours a week.  The remainder of their work week is filled in Misericordia's work programs, allowing these men and women to lead productive, fulfilling lives and obtain further training and experience.
 
No comprehensive study has been done to show that the elimination of Section 14(c) will improve the lives of the men and women with significant intellectual and developmental disabilities.  In fact, the few studies that exist all show the need for retaining Section 14(c) for this segment of the disabilities community.  For example, last fall the National Council on Disability issued a report on the elimination of Section 14(c) in certain states.  At pages 30-31 of the report, NCD concedes that while the number of individuals employed under 14(c) certificates has decreased over the past several years, "the country has not experienced a corresponding increase in 14(c) workers entering competitive integrated employment."  The report notes that the individuals who had been employed under 14(c) certificates are now engaged "in facility-based and non-work services."  In other words, these individuals are unemployed.  Instead, they are spending their days at home watching TV, at the mall, going to movies, shopping.  The NCD's discussion of the experience in six states that it views as success stories, further drives home this point.  Of the six states discussed in the report, the report contains no statewide data for four states showing what has happened to those who had been employed in sheltered workshops or under 14(c) certificates.  The report contains statewide data only for Washington and Rhode Island and in both instances the data shows that the elimination of 14(c) certificates has had a negative effect on individuals with disabilities.  For example, in Washington, the NCD report shows that between 2004 and 2016, those employed by sheltered workshops declined by 1,238.  At the same time, competitive integrated employment grew by only 229.  This means that of the 2,030 who had been employed in sheltered workshops, 1,009, or almost half, are now unemployed.  NCD Report, pp. 114-15.  What are these 1,000 individuals with disabilities, who use to be working, doing?  The report does not say.  Likely, they are sitting at home or going to the mall.  In addition, the NCD report shows that for the few who are employed in the community, they average between 10 and 13 hours a week at their job.  NCD Report, pp. 117-118.  What are these individuals doing for the rest of their work week?  Again, the report does not say.  Likely they are at home and going to movies or bowling.  The story is the same in Rhode Island according to the NCD report.  Since Rhode Island ended its sheltered workshops, 451 individuals obtained jobs in the community while the sheltered workshop census fell by 761.  NCD Report, p. 77.  This means that 310 individuals with disabilities who used to be employed are now unemployed.  What are these individuals doing?  The report does not say, but it shows that the census of individuals in day programs has increased dramatically, i.e., they are engaged in non-work activities.  In our view, this is not success, this is not progress.  Everyone should have the opportunity to enjoy the dignity of work, even at 14(c) wages if that is their choice.
 
One failing of the NCD report is that its analysis makes no distinction among types or severities of disabilities.  One cannot tell from the report whether the limited anecdotal success stories it reports are of higher functioning individuals while the significant loss of employment that is shown is among those with substantial intellectual disabilities.  The report does hint at this issue by pointing out that providers are concerned that those "with very significant disabilities who need the most supports may be left out" of the transition from sheltered workshops under 14(c) certificates to competitive employment.  NCD Report, p. 122.
 
One study did attempt to evaluate the impact of eliminating 14(c) on those with significant intellectual disabilities.  That study was done by Mathematica in 2017 and reached the following conclusion:
 
"The elimination of Section 14(c) would significantly impact some NPAs' businesses. Many would need to counterbalance the resulting increase in wages by either hiring fewer workers or increasing prices. Responses would differ substantially depending on the NPA's characteristics. There would also be a large impact on workers with disabilities. It seems likely that some workers with disabilities would lose their jobs, particularly those with the lowest productivity who generally are among those with the most severe disabilities; many workers in this group have significant intellectual and developmental disabilities."  Mathematica, p. xi.  See also, p. 19 ("eliminating Section 14(c) disproportionately impacts workers deemed to be least productive, who may have the most severe disabilities").
 
No one is forced to work under a 14(c) certificate.  Anyone who wants to seek employment at the prevailing wage is entitled to do so.  Section 14(c) gives individuals choice over their working environment.  Giving people choice does not violate their civil rights.  Indeed, choice is the essence of civil rights.  Some individuals choose non-profit work centers because it makes them feel safe, lets them work alongside friends, allows them to easily receive the care they need and avoid being picked on or teased.  They should have that choice.
 
The real civil rights issue here is continuing to allow individuals with significant intellectual disabilities to choose to work under a 14(c) certificate rather than spend their days in non-employment activities.  This allows these men and women to enjoy the dignity of work and the boost to their self-esteem that comes with being productive and contributing to a larger community.  Eliminating 14(c) would eliminate this choice and would make many of those with the most significant intellectual challenges unemployable.  That would violate their civil rights.
 
There is no "one size fits all" solution when it comes to employment of individuals with significant intellectual and developmental disabilities, which is why it is so important to preserve choices for them.  Certainly, those with physical disabilities who are cognitively normal should be paid the same as a non-disabled person.  However, those with significant intellectual disabilities should have the option to choose the form of employment they prefer and the only form of employment that may be available to them.  Like every other citizen, the choices of individuals with intellectual and developmental disabilities should be honored.  Eliminating Section 14(c) for this group would eliminate one option that over decades millions of men and women have chosen and are satisfied with.  Those who prefer competitive integrated employment should have that opportunity.  Those who prefer work centers should be equally respected.
 
We ask that the Commission support the civil rights of those with significant intellectual disabilities by supporting their right to choose to work at the specialized wages provided by Section 14(c) of the Fair Labor Standards Act.
Sincerely,
Sister Rosemary Connelly, RSM
Executive Director