Can Employers Pay Disabled Americans Below the Minimum Wage?

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Can Employers Pay Disabled Americans Below the Minimum Wage?

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Posted By DAM Firm | April 16 2018 | Workers Rights

There are over 20 million working age disability recipients in the United States. Historically, individuals with disabilities have a harder time finding and maintaining competitive employment. Unemployment rates in the United States are at an all time low of 4.1%. Unfortunately, the job rates for the disability population are nearly three times as high.

Underemployment for Disability Recipients

Finding a job with a physical or mental disability is difficult. The unemployment rates are significantly higher than the non-disabled workforce, and underemployment is also disproportional. Individuals with disabilities typically work part-time, entry-level positions. Even recipients with college level or even advanced degrees have trouble obtaining full-time positions.

Poverty and Disability

A common myth: disability benefits provide recipients the means to live a self-sustaining or even an affluent lifestyle. Disability recipients are twice as likely to live in poverty, and those rates are on the rise, up 17% since 1990. The labor force participation rate measures people who have jobs or are actively looking for a job. That statistic fell from 39.4% in 2009, to 34.5 % in 2015 – indicating that a segment of the American population in the most need of jobs have stopped searching for them altogether.

Disability and Employment

In the United States, 17.9% of individuals receiving disability benefits have work, representing 7.2 million Americans. The Americans with Disabilities Act protects these workers.

Can Employers Pay Disabled Employees Less Than Non-Disabled Members of the Workforce?

The simple answer is maybe. The ADA protects workers from discrimination. However, the law is not an affirmative mandate, and thus, does not put an undue burden on employers to hire individuals with disabilities or guarantee equal compensation. Running contrary to the ADA protections is a 1938 provision in the Fair Labor Standards Act.

This provision allows employers to apply to the Department of Labor for a waiver. The waiver can allow employers to pay lower wages to individuals with disabilities. Today, approximately 195,000 disabled workers are paid sub-minimum wages under this 1938 provision.

How Is This Legal?

The provisions in the Fair Labor Standards Act allows employers to base wages on output. In an industrial setting, if a non-disabled worker is able to package and label 100 boxes for shipment every hour for a wage of $10, and a disabled worker is only able to output 30 boxes, under the 1938 provision, the employer of said box factory is justified in paying the disabled worker $3 an hour for his or her reduced output.

If you or someone in your family is experiencing pay discrepancy due to a physical or mental disability, there may be a remedy for your case. We will research your claim, and advise you on how much in lost wages or pain and suffering you may be able to recoup.

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