In late February 2021, Sen. Katrina Shealy introduced a joint resolution in the South Carolina statehouse to bar the usage of Section 14(c) of the Fair Labor Standards Act (FLSA) when dealing with the question of pay for disabled workers. Passed in 1938, Sec. 14(c) allows employers who have obtained proper certification from the U.S. Department of Labor to legally pay disabled workers less than the federal minimum wage. In recent years, however, there has been backlash against the practice, with disability advocates declaring it discriminatory. If you are a disabled worker, this is a step in the right direction toward equality and dignity.
Originally, Sec. 14(c) was designed as a progressive way to get disabled people with high support needs into the workforce. However, over time, the protections it offered were weakened or abolished. For example, there was once a floor for how low pay could get, but that floor was removed decades ago. In its current form, Sec. 14(c) is seen by many advocates—particularly disabled advocates—as exploitative and discriminatory, with the outcry to regulate or abolish it growing.
A report by the U.S. Commission on Civil Rights that came out in 2020 estimates that the average wage for disabled workers is $3.34 per hour. This is wildly below the mandated minimum wage and entirely permissible due to the existence of Sec. 14(c). An able-bodied worker who was paid such a low amount would have a valid claim to file with the Department of Labor’s Wage & Hour Division. However, as of this writing, disabled workers cannot do the same thing, leaving them with basically no recourse against a potentially unscrupulous employer.
Disabled Workers Are Not Protected
Not many South Carolinians are currently paid subminimum wage, as of this writing (approximately 1,200). But it’s worth noting that workers who are paid subminimum wage also don’t generally have the same labor protections as workers who are paid minimum wage or more. Subminimum wage work and sheltered workshops (places where exclusively disabled workers are employed) have their adherents, with most espousing the paternalistic view that disabled people are lucky to have any work at all. However, this does not pass muster as an argument for discrimination.
If you are disabled and you suspect you’re being paid less than minimum wage, there is unfortunately little to be done as of this writing in terms of demanding a raise. However, Sec. 14(c) may not survive for long. While it was cut from the final American Rescue Plan due to the intervention of the Senate parliamentarian, President Biden had proposed support for eliminating Sec. 14(c) at the federal level. The pressure continues to build on politicians to allow disabled workers to be full-fledged members of the workforce and receive the pay and benefits to which any able-bodied worker is entitled.
Call A South Carolina Employment Discrimination Attorney
South Carolina senator Katrina Shealy’s proposed resolution to ban subminimum wage for disabled workers remains to be seen. However, it’s important to keep in mind that disability is one of the characteristics that an employer cannot use to discriminate—except, sadly, under the relevant provisions of the Fair Labor Standards Act.
If you’re being treated unfairly because of your disability in another context, calling a South Carolina employment discrimination attorney can make the difference for you. Attorney A. Christopher Potts and the firm of Hitchcock & Potts are ready and waiting to try and help you. Contact our office today to schedule a consultation.