The NewStandard ceased publishing on April 27, 2007.

Groups Clash over Ariz. Minimum-Wage Disability Exemption

by Catherine Komp

Some Arizonians want their state’s hard-won minimum-wage hike to apply only to “able-bodied” employees, leaving a loophole for paying disabled workers less.

Jan. 4, 2007 – Under Arizona’s new minimum wage law, some of the lowest-paid workers – including those who made just pennies per hour a few days ago – are to get a raise this week. But some groups don’t want the wage hike to apply to people with disabilities.

Before voters passed Arizona’s new wage law, certain workers with disabilities were exempt from the minimum wage and were paid what are called "commensurate wages" instead. Under the new law, effective January 1, employers must pay even these employees the standard $6.75 hourly minimum wage.

Some advocates for people with disabilities support commensurate wage policies, saying it boosts employment for people who employers might otherwise refuse to hire, and they are asking the state legislature to reinstate the wage exceptions.

But others call the practice discriminatory, exploitative and one more way to segregate people with disabilities.

"‘Commensurate wage’ is an Orwellian tag for a law that legalizes inequality," said disability-rights activist and author Marta Russell. "It degrades the disabled laborer to equate his [or] her productive capacity as less than [that of] a non-disabled laborer and to not give them equal pay. Who is to say that the disabled worker’s labor is not equal to or more productive or profitable for their employers than the average couch potato’s?"

The federal Fair Labor Standards Act permits employers to pay below-minimum wages to workers whose "productive capacity is impaired by a physical or mental disability, including those relating to age or injury." The Department of Labor’s website says alcoholism and drug addiction are also "disabilities which may affect productive capacity."

"‘Commensurate wage’ is an Orwellian tag for a law that legalizes inequality."

For states that have minimum-wage laws, many include waivers to ensure that employers can continue to pay sub-minimum wages. Massachusetts, Pennsylvania and Colorado included such waivers in their new minimum wage increases, also going into effect this week. But Arizona failed to include an exemption in the language of its voter-approved ballot initiative last November.

Some 5,600 employers pay sub-minimum wages to about 424,000 workers across the country, according to a 2001 report from the US Government Accountability Office. More than half make less than $2.50 an hour.

To pay a worker a commensurate wage, the Department of Labor requires an employer to analyze a job’s requirements and compare the productivity of a worker with a disability doing that job to a worker without. For example, if the average wage paid for product assembly is $8.00 per hour, and a disabled worker can only perform at half the rate of a worker without a disability, the commensurate wage would be $4 per hour.

Employers must re-evaluate the productivity of commensurate-wage workers every six months and adjust wages accordingly.

In its report, the GAO criticized the Labor Department for inadequate oversight of employers paying commensurate wages. After surveying a random sample of work centers and businesses across the country, the GAO found that the Labor Department was not ensuring that workers were getting “the correct wages.� The GAO also said the Labor Department did not have accurate data to “manage the program� and “ensure compliance by employers.�

Federal law permits employers to pay below-minimum wages to workers whose "productive capacity is impaired by a physical or mental disability, including those relating to age or injury."

The Labor Department acknowledged its oversight of enforcement was inadequate and pledged to improve the program.

Tony DiRienzi, executive director of the Arizona Statewide Independent Living Council, said commensurate wages are one of many battles people with disabilities are fighting.

"People have been undervalued because of their disability," DiRienzi told The NewStandard, pointing out that it was once legal to pay women and children less, too.

DiRienzi, who has post-polio syndrome and uses a wheelchair, acknowledges the economic impact of the minimum-wage hike on organizations employing people with disabilities. But he said all people, regardless of their productivity, should be paid at least the minimum wage.

"It’s a matter of being integrated into the community and being included into the mainstream… and it’s a minimum," said DiRienzi.

Other supporters of a uniform minimum-wage law include the Arizona Governor's Council on Developmental Disabilities, the AFL-CIO, and the disability-rights group Arc of Arizona.

According to the GAO, the majority of employers paying sub-minimum wages are nonprofit "work centers." These centers often run "sheltered workshops" in which only people with disabilities work, performing packaging, assembly or manufacturing jobs. Some centers also contract with businesses in the community, like grocery stores and restaurants, and employ workers there for sub-minimum wages.

Blanck said many people are stuck in sheltered work "for life" despite their potential to be integrated into better-paying employment.

At the Arizona-based Marc Center, a nonprofit corporation serving people with disabilities, about 90 percent of their 500 employees make below the minimum wage. The Center contracts with about 65 companies for jobs that include bulk mailing, running shrink-wrap and label machines, and filling bottles with cleaning solutions.

CEO Randy Gray, himself the father of a son with autism, told TNS companies should not have to pay minimum wages to people with severe disabilities because "that would be charity."

"If an individual is at 5 percent productivity, why should an employer or anybody have to pay more than 5 percent?" Gray said.

Gray and other proponents say the sheltered-workshop model is necessary to help people transition to gainful employment. But others say that goal is not being met. Peter Blanck, a law professor at Syracuse University and chair of the disability-focused Burton Blatt Institute, has studied thousands of people employed in sheltered workshops and co-authored a report on the issue in 2003.

While Blanck says sheltered work can serve as a form of vocational rehabilitation for some people, he said many others are "stuck in those jobs for life" despite their potential to be integrated into better-paying employment.

"The challenge with the sheltered workshop environment," said Blanck, "[is] that although many people with severe disabilities in sheltered workshops are appropriately placed there and [sheltered workshops] do serve an important function, many people with disabilities in sheltered workshops do not necessarily need to be there. In fact, their skill levels are quite high, and they often stay in these sheltered workshops much longer than they should."

The next challenge, said Blanck, is to "make work pay" and provide people with disabilities competitive wages, benefits and adequate work insurance. Blanck suggests more tax incentives for employers and better workplace accommodations for people with disabilities.

But Russell, who has written extensively on social and economic aspects of disability, said both the segregation of disabled employees in sheltered workshops and the laws permitting sub-minimal wages should be eliminated.

"All laborers should be paid at least a minimum wage, and preferably a living wage," Russell, who uses a wheelchair, told TNS. "That is the only way to raise the disabled workers in question here to an equal economic level with non-disabled workers and lift some of them up out of a below-poverty-level existence. To be paid anything less is to further enslave the disabled worker more than workers in general are already enslaved."

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The NewStandard ceased publishing on April 27, 2007.

Catherine Komp is a contributing journalist.

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