Jeffrey (Jeff) H. Ruzal, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s New York office, was quoted in Law360 Employment Authority, in “DOL Subminimum Wage Program Should Go, Experts Say,” by Daniela Porat. (Read the full version – subscription required.)
Following is an excerpt:
The federal program allowing employers to pay subminimum wages to workers with disabilities needs to be eliminated in a way that respects these workers' rights and avoids turmoil for them, experts say, one year after the U.S. Department of Labor began reexamining the program.
Section 14(c) of the Fair Labor Standards Act allows employers to apply for certificates from the DOL's Wage and Hour Division that authorize them to pay workers with disabilities below the federal minimum wage of $7.25, if their disabilities affect their productivity in that job. On Sept. 26, 2023, the WHD announced it was going to reevaluate the program.
A 2023 U.S. Government Accountability Office report found that since August 2019, most workers paid under the Section 14(c) program earn less than $3.50 an hour.
As a political move, eliminating the program is low-hanging fruit, said Jeff Ruzal, a member of management-side firm Epstein Becker Green and former trial attorney in the DOL's Office of the Solicitor.
"14(c) provides a scary headline that I think leaves folks scratching their heads as to how is this ever part of the FLSA, which is supposed to champion workers' rights and not essentially distinguish disabled workers from those who are not," he said.
Ruzal pointed to his former employer's contributions to the DOL's field operation handbook that states that there is a potential inconsistency between the Americans with Disabilities Act and the Section 14(c) program and that compliance with the FLSA does not necessarily mean an employer is compliant with the ADA.
According to the handbook, the solicitor's office of the DOL counseled that "the existence of a certificate under section 14(c) would not protect an employer from charges pursuant to the ADA." …
Ruzal said he didn't think there would be major pushback against eliminating Section 14(c), although there would certainly be some from employers who use it.
"I don't see if there's not some sweeping reform that the DOL will be able to stunt the potential unethical aspects or exploitative behavior that arises from an employer's use of 14(c)," he said.
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