NCSA Letter Opposing the Transformation to Competitive Employment Act and Raise the Wage Act — July 2019
Letter | July 9, 2019
To: Representative Bobby Scott, Representative Cathy McMorris Rodgers, Senator Bob Casey, Senator Bernie Sanders
Re: NCSA Opposition to the Transformation to Competitive Employment Act (H.R. 873 / S. 260) and the Raise the Wage Act (H.R. 582 / S. 150)
July 9, 2019
Representative Bobby Scott
1201 Longworth House Office Building Washington, DC 20515 Representative Cathy McMorris Rodgers 1035 Longworth House Office Building Washington, D.C. 20515 Senator Bob Casey 393 Russell Senate Office Building Washington, DC 20510 Senator Bernie Sanders 332 Dirksen Building Washington, DC 20510 Re: NCSA Opposition to Transformation to Competitive Employment Act and Raise the Wage Act Dear Senators and Representatives:
The National Council on Severe Autism (NCSA) is writing to respectfully express its opposition to two bills: the Transformation To Competitive Employment Act, H.R. 873 and S. 260, and the Raise the Wage (RTW) Act, H.R. 582 and S. 150. These bills may have good intentions on the surface, but they portend devastating consequences for the surging population of adults with severe forms of autism and related disorders. Over the past 30 years, our country has experienced a staggering increase in serious neurodevelopmental disorders that fall under the umbrella of autism. Based on California developmental services data, the population of adults with developmental disability-type autism will nearly quintuple over the next 20 years. And our country is woefully unprepared to meet their needs. One critical option for this population is non-competitive employment, a precious opportunity that would vanish under these bills. We need legislation that will not foreclose important options, but instead open the floodgates to the wide array of programs, particularly for those unable to engage in competitive employment. NCSA represents this population and their families and caregivers. The Acts would relegate a vast portion of the disability population to the status of permanent volunteers, effectively prohibiting them from landing any paid employment and depriving them of the dignity of work. Many, if not the vast majority, of the adults we represent are incapable of what any reasonable employer would consider baseline productive work warranting the minimum wage. Accomplishing even simple tasks often requires vigorous prompting and continuous oversight, and in many cases adults will engage in disruptive and/or dangerous behaviors, and/or require special hygiene (changing adult diapers or menstrual pads) or medical assistance (as is the common case with seizures and medication dispensing). But the good news is this: many in our population can fruitfully participate in disability-oriented programs engaging in meaningful paid work, with strong oversight and wages that match the productivity. This is the 14(c) of the Fair Labor Standards Act program, and this option not only should be preserved, it should be expanded to help support this growing population of adults so desperately in need of daytime supports and engagement. We understand that 14(c) has at times been abused by some employers to pay disabled employees less than they were worth. Though affecting a small portion of the 14(c) programs,
the exploitation is indeed something to be remedied, and we are glad to see the bills offering some needed fixes to our labor system by ensuring these capable workers have a way to move out of 14(c) programs and into competitive integrated employment. But for the more impaired portion of the disability community, the 14(c) program fills an urgent need. Again, it is simply inconceivable that commercial employers on any scale would willingly hire those like our constituents, most of whom cannot talk, read, or write, or follow standard directions. Some disability advocates are telling lawmakers that all people no matter how disabled can find integrated, competitive employment. This is pure fantasy unsupported by data and should be rejected outright by any rational lawmaker. These bills obviously risk throwing the jobs baby out with the social justice bathwater, privileging one sector of the disability population at the expense of another. Here are some other problems with the bills:
They dodge the obvious fact that subminimum wage work is but one benefit accruing to the significantly disabled clients. Work programs serving adults with significant intellectual disabilities are typically run by mission-driven, not profit-driven, nonprofit organizations. These adults are typically also beneficiaries of supervision, therapeutic care, training, and social and recreational programs funded and provided by the nonprofits. It can be very costly to serve these disabled individuals: they often require high staff ratios, intensive supervision, crisis intervention and ongoing coaching. As mentioned above, a standard job supervisor is unlikely to treat seizures, change diapers,
or handle getting punched or scratched. The extremely valuable, though non-monetary,
therapeutic dimensions should be considered before over-simplistically labeling subminimum wages as discriminatory. 14(c) programs serving the significantly intellectually disabled provide a protected form of employment unavailable in the free market. People employed at these programs earning 14(c) wages are not at risk of being fired, as they are in the competitive market. In other words, the disabled employee's needs comes first, and profitability is not the prime endpoint. The nonprofit work is typically tailored to the particular skillset of the worker, a customization unavailable in the free labor market where individuals are expected to conform to pre-established performance standards. Disability advocates often accuse 14(c) wage program of exploiting or abusing their disabled workers, but at least for severely challenged adults, the opposite is almost always true— the programs often protect clients from exploitation and abuse by offering a protected form of employment. No person with a disability is forced into 14(c) work, and wages are set carefully. The provision authorizes employers to pay specially tailored wages to employees with disabilities only when the employer can demonstrate, through an exacting certification process, that the worker's productivity is compromised by the disability. The certification requires a careful calculation of fair wages based on productivity and continuous re- evaluation of the employee's capacities to ensure wages keep pace with skills. And of course the worker would also need to agree to the wage. Programs must be re-certified every two years by the Department of Labor, which has the duty to identify and remedy any abuse or exploitation it finds during its reviews. The bills would destroy work centers, as well, by forcing them follow increases in pay,
such that in a few years they would have to pay minimum wage whether the individual still has a 14(c) certificate or not. This either puts a work center out of business, or forces them to adopt a model that makes them operate for the subset of workers qualified for competitive, integrated employment, while abandoning the vulnerable people who cannot. Most workers with disabilities, for example physical disabilities, are already in the competitive market. Retaining a 14(c) option does nothing to negate or undermine expansion of competitive employment for those capable of that option. Both work options can and should peacefully coexist to serve a dramatically diverse disability population. The NCSA stands firmly in favor of all reasonable vocational options for our incredibly diverse disability population (see NCSA Position Statement on Vocational Options), and now asks that we expand capacity for competitive wages using the planned federal grants, while also retaining vital 14(c) options for our severely disabled loved ones. Unfortunately, based on the current bills, people with a very significant level of disability stand to lose their jobs, their programs, their earned income, and their right to meaningful engagement in community. We thank you for your kind consideration of our opposition to these bills and are happy to address any questions or concerns you may have. I may be reached at jill.escher@gmail.com. Very truly yours,
Jill Escher President
