Ralph (Joe) Magers, Pamela Steward, and Mark Felton produce floor samples for Seneca Re-Ad Industries, an Ohio-based sheltered workshop for workers with disabilities. Their job responsibilities include cutting floor tiles, printing labels, punching holes through tile pieces, chaining tile pieces together and packaging.
For their efforts, they are paid $2.50 an hour.
The Seneca County Board of Developmental Disabilities, which operates Seneca Re-Ad, argues these wages are legal because it is the holder of a special certificate from the Department of Labor. This certificate allows it pay subminimum wages to certain workers with disabilities perceived as unemployable, pursuant to the 1937 Fair Labor Standards Act.
This program, however, is subject to multiple caveats, which are the subject of a petition filed recently with the DOL, asking for the agency to review Seneca County’s certificate. The petitioners are represented by attorneys from Disability Rights Ohio, the National Federation of the Blind, the Autistic Self Advocacy Network and Brown Goldstein & Levy.
“Under the Fair Labor Standards Act, the workshop is permitted to pay less than minimum wage but only if the workshop follows the procedures laid out in the law, which wasn’t done here,” DRO Attorney Barbara Corner said in a news release, dated November 19. “Our clients’ disabilities do not preclude them from working hard and even using heavy machinery, and they deserve and want the opportunity to earn as much as workers without disabilities.”
Under the FLSA, employers authorized to pay subminimum wages are nonetheless required to pay their workers “wages commensurate with those paid experienced nondisabled workers employed in the vicinity in which they are employed for essentially the same type, quality, and quantity of work.”
Magers and Steward have visual disabilities. Felton has autism. The petitioners argue that none of these disabilities limit in any way their ability to perform the tasks assigned to them by Seneca-Ad. They also argue that Seneca County has failed to undertake the required steps under the FLSA to objectively determine appropriate compensation for their efforts.
In addition, the petitioners state they have not been paid for all their hours of work, pointing to allegedly unpaid periods consisting of mandatory staff meetings, safety activities and time waiting for machines to be reset or to gather materials. On average, the petitioners argue, they are not being paid for at least 1 hour per day of employment.
In recent years, subminimum wages have been a central focus of disability rights protests, legislative activity and litigation. However, the little-known option to petition the DOL has been rarely, if ever, used.
The DOL has 40 days to assign the case to an administrative law judge and hold a hearing.
Disability Rights Ohio, and Disability Rights Washington, the publisher of Rooted in Rights, are the designated protection and advocacy agencies in Maryland and Washington, respectively, and are members of the National Disability Rights Network.