Clinton's Case Against the Subminimum Wage

Differential wages for the disabled are discriminatory—and Clinton is putting the issue into the spotlight.

Patrick Semansky / AP

A young lawyer with autism wanted Hillary Clinton’s opinion about the “subminimum wage,” a Depression-era exemption to labor law that allows disabled people to be hired—and often exploited—at rates far below the minimum wage.

“We have to do much more on research, early intervention, job training, housing—the whole range of benefits and opportunities that need to be available to people on the spectrum,” Clinton replied Monday, reminding the lawyer that she is the only candidate in the 2016 race with a comprehensive approach to autism. “So that’s going to be a high priority for me.”

Then she spoke against the subminimum wage—a topic rarely, if ever, addressed in the presidential campaign.

When it comes to jobs, we've got to figure out how we get the minimum wage up and include people with disabilities in the minimum wage. There should not be a tiered wage, and right now there is a tiered wage when it comes to facilities that do provide opportunities but not at a self-sufficient wage that enables people to gain a degree of independence as far as they can go. So I want us to take a hard look at raising the minimum wage and ending the tiered minimum wages, whether it's for people with disabilities or the tipped wage....When people talk about raising the minimum wage, they don't always talk about the legal loopholes that we have in it and I want to get rid of those and I want to get rid of that for people with disabilities too.

Clinton’s comments were cheered by advocates for the disabled.

“We believe people with disabilities deserve the same labor law protections as people without disabilities,” said Ari Ne’eman, a co-founder of the Autistic Self Advocacy Network and member of a Labor Department advisory board on the subminimum wage.

In 1938, President Roosevelt signed into law the Federal Labor Standard Act (FLSA), setting standards for basic minimum-wage rights and overtime pay for workers. It created an exemption that permits certain employers to pay wages to worker with disabilities that are far lower than the minimum wage—sometimes as low as 8 cents per hour.

It made sense at the time: Eight decades ago, employers needed an incentive to hire veterans with physical disabilities struggling to find work in an industrial workplace. It makes no sense now.

“The 1930s law reflected a set of assumptions about people with disabilities, and now we’re here in the 21st century and the law is still on the books?” Ne’eman said. While past generations pitied and segregated people with disabilities, Ne’eman is part of movement that considers broadening opportunities to disabled people an extension of the civil-rights movement.

In a 2015 column for Huffington Post, Curtis Decker of the National Disability Rights Network, explained how the 1938 law is used to financially exploit disabled people.

Here’s how it often goes. Unscrupulous employers eager to profit off the cheap labor they can access because of this provision in the FLSA portray their business as a “job training” program.

They entice schools, parents and service providers to send them workers with disabilities with the promise that, although they won’t be paid much, they will learn a skill in a supposedly safe (but segregated) environment that will eventually lead them to a real job. But as soon as the worker becomes proficient in one area and ready to graduate, they change that person’s task.

They give them something new to do, or they come up with some other reason for why the worker is not ready to leave. Can you imagine having to constantly adjust to new job responsibilities every time you became comfortable with a particular task? This goes on for years. Sometimes decades.

The truth is that many of the people who enter these job training programs have no hope of ever graduating or finding competitive employment. They labor away making only a fraction of the minimum wage while many company owners earn six-figure salaries.

Aside from the frugal wage, segregating people with disabilities limits their opportunities for advancement and economic mobility. Ne’eman said just 5 percent of disabled people placed in segregated workforces manage to leave them for integrated workplaces.

Opposition to eliminating the minimum-wage exemption often comes from non-profit groups that rely on disabled workers to help carry out their civic missions. These groups worry about the impact on their budgets, and sometimes lobby for a phase-out of the subminimum wage.

There has been some progress. Maryland is phasing out the subminimum wage, Ne’eman said, and several states aim to stop spending Medicaid funds on the segregated working environments. Ohio Governor John Kasich may be the only GOP presidential candidates to speak out against segregated workplaces.

Until Clinton’s remarks Monday, Ne’eman said that to his knowledge no other candidate had spoken against the subminimum wage. “It’s a big deal,” he said.