- Workers With Disabilities
Workers With Disabilities 29 C.F.R. § 4.6(o).
Workers with disabilities who are employed under certificates issued by the WHD may be paid at "special minimum wage" rates below the rates that would otherwise be required for such work.
- SCA contractors are allowed to pay less than the SCA prevailing wage rates to workers with disabilities in business establishments, community rehabilitation programs (also known as work centers), hospitals and residential care facilities, and School Work Experience Programs, in accordance with section 14 of the Fair Labor Standards Act (FLSA).
- Section 14 of the FLSA provides for the employment of certain workers at rates below the federal minimum wage to the extent necessary in order to prevent curtailment of employment opportunities. As stated in section 14(c)(1):
- The Secretary, to the extent necessary to prevent curtailment of opportunities for employment, shall by regulation or order provide for the employment, under special certificates, of individuals . . . whose earning or productive capacity is impaired by age, physical or mental deficiency, or injury, at wages which are:
- (A) lower than the [FLSA minimum wage];
- (B) commensurate with those paid to non-handicapped workers employed in the vicinity in which the individuals under the certificates are employed, for essentially the same type, quality, and quantity of work; and
- (C) related to the individual's productivity.
- Employers must obtain an authorizing certificate from the WHD prior to paying special minimum wages to employees who have disabilities for the work being performed. Applications are available from the WHD's Regional Offices and at https://www.dol.gov/agencies/whd/workers-with-disabilities. Completed applications must be mailed to the following address: U.S. Department of Labor, Wage and Hour Division, National Certification Team, 230 South Dearborn Street, Room 514, Chicago, Illinois 60604-1757.
- The fact that a worker may have a disability is not in and of itself sufficient to warrant the payment of a special minimum wage. Section 14(c) does not apply unless the disability actually impairs the worker's earning or productive capacity for the work being performed. A worker who has disabilities for the job being performed is one whose earning or productive capacity is impaired by a physical or mental disability, including those relating to age or injury. Disabilities which may affect productive capacity include blindness, mental illness, mental retardation, cerebral palsy, alcoholism and drug addiction.
- A special minimum wage is a wage paid to a worker with a disability that is commensurate with that worker's individual productivity compared to the wages and productivity of experienced workers who do not have disabilities performing essentially the same type, quality, and quantity of work in the vicinity where the worker with a disability is employed. The commensurate wage is always a special minimum wage, i.e. a wage below that required by Section 6 of the FLSA or below the rate required under an applicable SCA wage determination. The commensurate rate is determined by the employer in accordance with 29 C.F.R. Part 525.
The key elements in determining commensurate rates are:
- Determining the standard for workers who do not have disabilities, the objective gauge against which the productivity of the worker with a disability is measured.
- Determining the prevailing wage. Most SCA contracts include a wage determination specifying the prevailing wage rates to be paid for work on the SCA contract. (On SCA contracts funded by appropriated funds, the contract will be amended annually to include a new prevailing wage determination.)
- Evaluating the quantity and quality of the productivity of the worker with the disability.
- The productivity of hourly rate workers must be reevaluated at least every six months. Also, all special minimum wages must be reviewed and adjusted regularly, at least once a year, to assure that they reflect changes in locally prevailing wages. 29 C.F.R. § 525.1(b) & 525.9(b)(2). Where a worker is performing work subject to the SCA, the wage rate listed on the wage determination for the classification of work performed is the prevailing wage. If a covered contract does not contain a wage determination, (because the contract is for less than $2,500, or involves fewer than six service employees and the WHD determined that no wage determination would be issued for the contract work to be performed), the employer should determine the prevailing wage rate in accordance with instructions provided at 29 C.F.R. § 525.10.
Fringe Benefits and Overtime
- Workers paid special minimum wages must receive the full fringe benefits (or cash equivalents) listed on the wage determination when performing work subject to the SCA. Temporary and part-time employees are entitled to an amount of the fringe benefits specified in an applicable wage determination that is proportionate to the amount of time spent in covered work. The SCA makes no distinction, with respect to its compensation provisions, between temporary, part-time, and full-time employees.
- Vacation pay and holiday pay may be based on the commensurate wage rate.
- Generally, workers with disabilities are subject to the overtime provisions of the FLSA and/or CWHSSA and must be paid at least 1½ times their regular rate of pay for all hours worked over 40 in a workweek.
FLSA Minimum Wage Application to Employees Who Do Not Perform Work Subject to the SCA in an Establishment where SCA Contract Work is Performed
- Section 6(e)(1) of the FLSA extends application of the FLSA minimum wage to employees not employed on the SCA contract. Thus, for example, in a work center, where SCA contract work is performed, certain staff and employees not working on the service contract must be paid at least the FLSA minimum wage.
(Commensurate rates would continue to apply to the workers with disabilities employed under special minimum wage certificates.)
- Regulations set forth at 29 C.F.R. Part 525, "Employment of Workers with Disabilities under Special Certificates," govern the issuance of certificates authorizing the employment of workers with disabilities at special minimum wages pursuant to section 14(c) of the FLSA. See also the SCA regulations at 29 C.F.R. § 4.6(o).
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