Lower wages for disabled employees raise fairness issues

As lawmakers consider ban on practice, advocates debate impact on workers

ALBUQUERQUE — This is the longest Nicole Bakke has had a job.

For more than a decade, she has sorted paper at an industrial shredding facility and made the rounds with drivers to pick up documents for disposal. Files from hospitals, government agencies and beyond are brought to this facility near downtown Albuquerque and turned into stacks of shredded paper for recycling.

Part of the nonprofit Adelante Development Center, the facility is geared toward providing jobs to people with intellectual and developmental disabilities. Bakke likes the people. But the facility is one of a small number of organizations in New Mexico using a provision of federal law allowing employers to pay less than the minimum wage to people with disabilities.

Nearly 300 New Mexicans are currently paid under this provision.

The Legislature is considering abolishing the practice altogether.

For employers and the families of many such workers, the importance of these jobs is not in the wage but in the dignity and sense of worth that comes along with the work. Without this 80-year-old provision of the law, employers — mostly nonprofit service organizations — argue they could not afford to hire workers who need the extra support and accommodations that people with disabilities might. Forcing these employers to pay at least the

minimum wage would squeeze workers with intellectual and developmental disabilities out of the job market or at least into very different workplaces, they fear.

But many people with disabilities and civil rights groups argue the practice is fundamentally unjust. Paying less than the minimum wage, they argue, is based on the idea that people with disabilities are necessarily less productive and unable to work in the broader community. They contend that is simply not true and argue for what they call real pay for real work.

“It is inherently discriminatory to carve out a lower wage for people based on their disability,” said Tim Gardner, an attorney for Disability Rights New Mexico. “That’s what this does.”

While the issue may affect relatively few people, it has sparked an impassioned debate about how much New Mexicans value people with disabilities and how they’re included in society.

Nestled in the federal Fair Labor Standards Act, the provision dates back to 1938. But over the past 80 years, the requirements for employers to use this section of the law have become increasingly stringent.

Employers set pay for each worker based on their individual productivity as assessed through regular analyses. Pay can go up as productivity improves or down as productivity declines.

The program is just not worth the endless paperwork for bigger, for-profit employers.

Today, the only employers in New Mexico paying less than the minimum wage under this section of the law, known as 14(c), are a shrinking group of nonprofit organizations providing what is often called sheltered employment, where most of the staff have intellectual disabilities.

And while this carve-out in federal law may have been meant as a training wage, some workers with disabilities have been earning less than the minimum wage for years in these settings.

Adelante Development Center is by far the largest. The organization eschews the term sheltered employment. And provides services including document scanning and destruction as well as facility maintenance.

The state government is a major customer.

The organization has won contracts from the Human Services Department to provide mail services and handle document scanning, for example.

For a parent like Patrick Murray, Adelante provides not just work but a community and network of support. Murray’s daughter, Catie, has an intellectual disability and has worked at Adelante in Albuquerque for about five years.

They have looked at other job options, but Adelante offers supervision and support that is hard to find anywhere else, he said.

Murray is worried that barring organizations like Adelante from providing the wages they currently pay would leave his daughter without a job.

“My daughter is more impressed with the fact that she works, works well, does earn money and is complimented on her good work performance,” he said. “Catie’s dignity wouldn’t be enhanced by being unemployed.”

New Mexico is about average or maybe even a little better than most states when it comes to getting people with intellectual and developmental disabilities into the workplace.

Thirty percent of New Mexicans with intellectual or developmental disabilities enrolled in employment and day services participated in what is known as integrated employment as of 2016. That is a higher rate than most neighboring states, according to a Legislative Finance Committee analysis. But that rate is also lower than it was about a decade ago, when around 44 percent were employed in the community. The current national average is around 22 percent.

What all of this means depends on who you ask.

For Adelante Development Center’s CEO, Mike Kivitz, it represents an inevitable limit on who can get work in the community.

The organization helps people with disabilities find jobs elsewhere. But he argues many people with intellectual and developmental disabilities need an option like the sort of employment his organization’s enterprises provide because other employers simply will not accept them.

“This is not a civil rights issue. This is reality,” he said.

Moreover, there is serious discussion among legislators about raising the minimum wage, which Kivitz has argued would leave fewer workers with disabilities as competitive job applicants.

Not everyone sees employment for less than the minimum wage as providing dignity, however.

“It devalues a person not to be earning at least minimum wage,” said Pamela Stafford, policy director at the disability advocacy group Arc New Mexico.

It is a false dichotomy to argue that people with disabilities must choose between a low wage and no wage at all, she said.

Anyone might earn less if placed in the wrong job, Stafford argued. The key, she added, is connecting people with disabilities with the jobs where they can excel.

But Stafford argued the 14(c) program was never intended to provide low pay to people with disabilities working in sheltered settings, particularly for years at a time.

Research generally points to greater self-satisfaction and higher earnings for people with disabilities working in the community as opposed to sheltered settings.

So, Stafford argued, the real alternative is to boost job placement and coaching for people with disabilities. “We’re not investing in the service,” she said.

Job coaches are paid too little, Stafford said, and “when it comes to disabilities that require a more customized approach, we’re lagging way behind.”

While some argue the state has hit a natural limit on the number of people with intellectual disabilities who can find work on the job market, others counter the state has simply limited itself and is falling back on a program critics view as a relic of an era that should end.

Two Democratic legislators, Reps. Joanne Ferrary and Angelica Rubio, sponsored a bill last year that would have required at least minimum wage for workers with disabilities.

The bill only got out of one committee and never became law. But it spurred the creation of a task force to examine the issue.

And in a hearing last week, the chairwoman of the Legislative Health and Human Services Committee suggested the next governor’s administration could use something like an executive order to require at least minimum wage for work on state contracts.

“We have to put our money where our mouth is,” said Rep. Debbie Armstrong, D-Albuquerque.

For now, groups like Arc New Mexico want the state to stop enrolling new workers in job opportunities that pay less than the minimum wage and work toward transitioning those already in such programs to other jobs where possible.

Joseph Rivera has helped several people with disabilities find jobs in the Taos area, everywhere from Wendy’s to a local movie theater to a medical office and grocery store. Rivera, who works at EnSueños y Los Angelitos Development Center, does not agree with paying people less than the minimum wage.

“I don’t want to see them working for peanuts,” he said.

But he adds that proposals to raise the minimum wage for everyone can leave people with disabilities earning the very least in a lurch when it comes to finding a job.

“If you raise the minimum wage, our folks are the first target,” he said.

All the more reason then, Rivera said, to help workers with disabilities not only land jobs but succeed in those jobs and earn raises.

The goal with some of his clients, he said, is that “they get a decent wage and they’re being treated just like any other employee.”