Author: Megan Kunelli

There has been at least one article in Access Press by Andrea Zuber of Arc of MN celebrating this legislation and at least one television story on the topic. In the October 23rd KARE 11 story, Eva Anderson interviewed Brittanie Wilson, a disability advocate that works for the Minnesota Council on Disability and has applied to be on the taskforce. At the one-minute mark of the story, you hear Anderson mention a new taskforce that “aims to create a plan to make sure all people with disabilities are afforded that same right” (earn at least a minimum wage) followed by a statement from Wilson that it is “time for us to research, take our time, and make a plan that ensures no one is left behind.” I would concur that all people with disabilities should have the right to pursue making at least a minimum wage in the general workforce and time is needed to make sure that 6,000 people making an informed choice to earn a special minimum wage don’t lose that option. In that same story, Jillian Nelson from the Autism Society of MN is quoted as saying, “when we send a message that people with disabilities are worth the same as other employees, it’s going to improve employment outcomes for all people with disabilities, not just those in subminimum wage settings” and she could not be more wrong. In their March 2019 report “Success, Progress, and Struggle in Greater Minnesota,” the Mid-Minnesota Legal Aid (a federally designated protection and advocacy agency for MN) within the Minnesota Disability Law Center (MDLC) emphasized that “the most influential factor in creating this employment success was a high degree of person-centered focus within the DT&H facility.” Yet, they now support eliminating the special minimum wage option as an informed choice in a person-centered plan. How does that square up? Apparently, person-centered planning and informed choice only count to the MDLC when the outcome is the pursuit of employment in the general workforce making at least minimum wage.

In my view, Zuber, Nelson, and the MDLC subscribe to a belief that everyone is “the same” should be treated “the same” and have access to “the same” confusing equity for people in similar circumstances with reasonable accommodations for people in different circumstances. There was a related article in the New York Times entitled – “Helen Keller and the Problem of Inspirational Porn” (10/23/21) written by Leona Godin, an author with a sensory disability. This was followed by a letter-to-the-editor written by Carlisle Ford Runge, a distinguished McKnight Professor of Applied Economics and Law at the University of Minnesota and parent of a client at Merrick, Inc. His thoughts are as follows ~

“Leona Godin’s article is an important contribution. As parents of a disabled daughter (now 34) we have often found that the non-disabled seek the comfort of imagining the virtues of overcoming the many disadvantages the disabled and their caregivers face. Many of these disadvantages are simply physically or mentally impossible to overcome. One of the most pernicious and ultimately destructive ideas in current policy discussions is that all people, including the disabled, should be treated “the same”. This confuses the equity of treating similarly situated individuals in similar ways with the equity of treating differently situated individuals differently. These two forms of equity need to be balanced, so that unreasonable demands and expectations are not placed on the disabled. An example is the campaign in many states to eliminate lower-than-minimum wage allowances for disabled workers in places like supermarkets. The principal effect will be to eliminate opportunities for these individuals by forcing them to compete for the same jobs at the same wages with non-disabled workers. To put it starkly–does anyone really think that a paraplegic person can stock shelves at the same rate as a non-disabled person? Should this prevent the disabled worker from joining the workforce–albeit at an adjusted lower wage? Recognizing the differences of the disabled and making social and economic adjustments, rather than romanticizing their capacity to overcome their disabilities, is more fair, just and realistic.”

Recently the U.S. Commission on Civil Rights (CCR) issued its “Subminimum Wages: Impacts on the Civil Rights of People with Disabilities” 2020 Statutory Enforcement Report. Not only was it long at 349 pages and detailed with 1,320 footnotes; more than 9,700 public comments were submitted (far more than any other issue ever studied by the CCR). That four of the six Commissioners recommended elimination of 14(c) is another example of “Inspirational Porn” (refer to my Bytes editorial entitled “You”). Some of the more relevant dissenting comments included:

• “Generations ago it was more common for people to feel uncomfortable around the severely disabled. They wanted to keep disabled persons out of sight, because … well … disabled persons offended their sense of aesthetics. Today those who want to abolish sheltered workshops and Section 14(c) believe themselves to be a universe apart from those earlier generations. But they are the same. In both cases, it is all a matter of appearances … of what looks good. What is actually in the best interests of the disabled individuals doesn’t enter their minds.”
• “The report and its findings and recommendations take the tone throughout that although some people have not yet caught up with the caravan of progress and realized that competitive integrated employment is the wave of the future, the evidence favors the superiority of this approach. This is wrong. The Commission received far more public comments from parents of individuals who tried working in mainstream environments and did not thrive there. The “story after story” consists almost exclusively of a few people who testified at the Commission’s public hearing, a tiny smattering of parents whose children transitioned away from a sheltered workshop, and some people in Vermont, most of whom never worked in a sheltered workshop. It is not until page 99 that the report divulges that 98% of the public comments submitted to the Commission support the continuation of 14(c).”
• “It is also worth noting that the report found that employees with cognitive disabilities in Virginia and Arizona (which permit the payment of 14(c) wages) had the highest annual mean earnings every year since 2009. Vermont and Maine, which have ended 14(c), overall have the lowest annual mean earnings for employees with cognitive disabilities.”

Any decision regarding the special minimum wage should be based on the Minnesota Olmstead Plan approved by U.S. District Judge Frank. The current vision statement found on the Olmstead Implementation Office website states that “To get our vision, people with disabilities need choices about where to live, learn, and work. They need information about their choices and to understand their right to decide for themselves.” Where in this vision does it say we need to eliminate options or disregard informed choice? Getting back to Judge Frank’s ruling, he made some notable statements that I think support the protection of the special minimum wage option. These include:

1. “In approving the revised Olmstead Plan, the Court also takes this opportunity to respond to those who have expressed fears about the plan’s purported harmful effects. The Court has received numerous submissions from concerned community members, parents, and advocates expressing fears that the Olmstead Plan will lead to fewer choices and diminished respect for individuals who choose not to fully integrate into community-based settings. Many individuals with disabilities in this state value living and working alongside other individuals with disabilities in settings such as group homes and sheltered workshops.”
2. “The Court emphasizes that the Olmstead decision is not about forcing integration upon individuals who choose otherwise or who would not be appropriately served in community settings.”
3. “The goal of placing individuals with disabilities in the most integrated setting must be balanced against what is appropriate and desirable for the individual.”

In response to the Levy Amicus Brief included in the ruling, then Commissioner Lucinda E. Jesson wrote a 3-page letter with a number of notable points that included:

• A statement that “…government and service providers begin listening to individuals about what is important to them in creating or maintaining a personally-valued community.”
• The term “productive employment” and not “competitive-integrated employment” was used when referencing the Plan’s vision statement, a term more consistent with individual choice, and “that people with disabilities should receive community-based services when the affected individual does not oppose it; segregated settings will be the preferred choice for some; and the Plan is not about eliminating certain service options or closing specific facilities.”
• Referenced a dispute resolution process for “individuals who believe that they have not received services or supports in accordance with the principles set forth in Olmstead v. L.C.” (page 537 of the dispute resolution process plan). In offering this “meaningful” protection the Commissioner essentially promised no harm to people with disabilities and the Court made a point of urging the State to “…remain vigilant to the public’s fears and concerns. Individual choice must remain a guiding factor in the delivery of community services and supports. The State must continue to assess its goals and priorities to ensure that they align with the goals and priorities of individuals with disabilities.”

Apparently, this balanced perspective on informed choice left DHS when Jesson did.

In 2016 it became a federal requirement that every person earning a special minimum wage go through an annual Career Counseling, Information and Referral (CCIR) session completed by the State Vocational Rehabilitation authority (DEED). The CCIR session includes the 14(c) wage worker, usually a family member, and an independent counselor (representatives from the day program are specifically excluded). In year five (2020 – 2021), DEED reports that 5,716 people earning a special minimum wage completed a CCIR session and 5,154 (90%) did not want a minimum wage job. Despite this fact, we are now on a course to eliminate the special minimum wage option for nearly 6,000 people with disabilities in Minnesota, who did not ask for this, merely for the appearance of “looking good.”

For the record, I believe that people with disabilities should have the right to work in the general workforce, at the same productivity level as their nondisabled coworkers, and be paid the same as their nondisabled coworkers; and that right should not eliminate the option for 6,000 other people with disabilities to earn a special minimum wage. There are many others that believe the same and are working hard to get this legislation repealed, or at the very least revised to make the purpose an objective study of employment services for people with disabilities in Minnesota. There is no harm in keeping the special minimum wage as one of the service options in Minnesota and to say otherwise is pernicious.

To manage the daily challenges of the pandemic it became necessary to have an expectation of how we were going to work towards resuming typical operations. To unify our management team of 18 professionals I offered the mantra of being BOLD which meant ~ Believe It, Own it, Lead it, and Do it and I will explain how this was used in our journey.

Believe it. Was the professional confidence that with a clear intention, sufficient resources, and a little good luck it was possible that each of us could contribute to a shared objective – in this case resuming typical services by 7/1/21.

Own it. With the intention known, each of us had to understand how the Covid-19 restrictions imposed on day programs by MDH and DHS could be met while maximizing the number of clients served. This required split shifts, using common space for workstations, and more frequent cleanings to name just a few adjustments.

Lead it. Perhaps the most difficult aspect was handling the frequent changes and obstacles with an attitude of “we can overcome” rather than “we are at the mercy of others”.

Do it. Can’t say it any better than we all had to step up and get busy doing what we could to serve more clients. It helped that every time a client returned to our program it was cause for a celebration.

I am pleased to report that on 7/12/21 we resumed typical operations serving 85% of the clients enrolled pre-pandemic and have had only one case of Covid-19 traced back to our program. We are working with a few business partners to bring our crews back to their operations and find new jobs for direct-hire clients that were displaced by the pandemic and should be back to full census in the near future.

I do not claim to be management guru and have no desire to go on a speaking circuit or write a book. Still, the BOLD mantra can be useful in coordinating a team’s intention for most challenges, securing each manager’s commitment, reinforcing that one can control their actions, and that any well-intended action is better than no action. Give it a try and I would be interested in any success stories.

This CCR had eight members with four Presidential and four Congressional appointments. Established as an independent, bipartisan, fact-finding federal agency, their mission is to inform the development of national civil rights policy and enhance enforcement of federal civil rights laws. They pursue this mission by studying alleged deprivations of voting rights and alleged discrimination based on race, color, religion, gender, age, disability, or national origin, or in the administration of justice. It is their view that they play a vital role in advancing civil rights through objective and comprehensive investigation, research, and analysis on issues of fundamental concern to the federal government and the public. It is my view this was anything but an objective study and recommendation.

In retrospect, I should have begun reading the findings and recommendations beginning on page 241. I’ve learned that 2 of the Commissioner’s terms ended before the report was finalized and that 4 Democrats voted in favor of the following recommendation with 2 Republicans dissenting, “Congress should repeal Section 14(c) with a planned phase-out period to allow transition among service providers and people with disabilities to alternative service models prioritizing competitive integrated employment.” I understood their primary reasoning to be:

1. The federal Department of Labor has repeatedly found providers operating with 14(c) certificates to be limiting people with disabilities participating in the program from realizing their full potential.
   
   In MN we have day programs that offer special minimum wage and center-based work as options for people with I/DD to better realize their earning potential. We have also led the effort to increase opportunities for people with I/DD to find and hold minimum wage jobs. Still, there are more than 7,000 people in our programs that prefer and need the 14(c) option. As one mother stated, it is “less-than-minimum wage or no job at all”: Furthermore, proponents of eliminating 14(c), seem to equate the value of a person with I/DD based on their ability to earn a minimum wage whereas nonprofit day programs value all the people we serve regardless of their hourly wage.

2. It is alleged that providers operating with 14(c) certificates are able to turn substantial profits and returns for their corporate officers while paying workers with disabilities less than minimum wage; and that businesses who contract with these providers benefit from decreased labor and benefit costs.
   
   Day programs in MN are nonprofits and their audits and tax returns are public documents. Furthermore, in 2019 I conducted a study of nonprofit compensation in MN which confirmed that executives of day programs are not excessively compensated and, if done correctly, businesses that contract with us pay the same labor cost per unit they would pay if using a nondisabled workforce.

3. People with I/DD who are currently earning subminimum wages under the 14(c) certificate are not categorically different in level of disability from people with I/DD currently working in minimum wage jobs.
   
   With more than 40 years of experience in disability services, I know this is a myth and there is a difference in work skills between people with I/DD working in the general workforce and those working for a special minimum wage. One Commissioner refuted this myth by stating ~ “If it were possible for a person working for subminimum wage to earn the full minimum wage ‘with a little support,’ don’t you think these devoted parents would have leapt at the opportunity”? This myth is simply propaganda the CCR needed to support their predetermined recommendation.

4. Paying low wages to people with disabilities harms their economic potential, increasing the likelihood that they will remain reliant on state and federal support.
   
   In reality, people with I/DD eligible for state and federal support have chronic and lifelong disabilities that preclude most of them from ever being financially independent. To assert otherwise is to label most people with I/DD a failure for relying on state and federal support.

5. The American with Disabilities Act (ADA) requires increased integration of people with disabilities into the workplace and society and is facilitated by technological advancements that obviate any need for subminimum wage work.
   
   The ADA does not require employers to lower production standards – whether qualitative or quantitative – applied uniformly to employees with and without disabilities. Therefore, a person with a disability who is unable to perform the essential functions, with or without reasonable accommodation, is not a “qualified” individual with a disability within the meaning of the ADA.

Typically I would offer some commentary that supports my position. Instead, I am going to list some of the most notable dissenting comments from CCR Commissioners Heriot and Kirsanow (sheltered workshops is a term that has been weaponized by opponents and is only used here because it was the term used by those I quote):

• No one in his right mind would think that the U.S. Commission on Civil Rights—with its mere two days of fieldwork on this issue—has better insight than these mothers have into what is best for their sons. It’s absurd. Indeed, my colleagues on the Commission must know it’s absurd. Why else bury the fact that 98% of the commenters were in favor of 14(c)? These women know their sons are not going to be earning a competitive wage. They are not interested in chasing rainbows and unicorns. For their sons, it is a sheltered workshop at less-than-minimum wage or no job at all.
  
  
• Even zealous advocates of terminating the so-called “subminimum wage program” admit that its elimination results in lost jobs. It doesn’t take a labor economist to tell you that the demand for unskilled labor of Down syndrome adults is not infinitely inelastic. If the price goes up, the number of jobs will go down. If we could raise the minimum wage without increasing unemployment, we’d have long ago set the minimum wage to $1,000,000 an hour and made everyone rich. But it just doesn’t work that way.
  
  
• Generations ago it was more common for people to feel uncomfortable around the severely disabled. They wanted to keep disabled persons out of sight, because … well … disabled persons offended their sense of aesthetics. Today those who want to abolish sheltered workshops and Section 14(c) believe themselves to be a universe apart from those earlier generations. But they are the same. In both cases, it is all a matter of appearances … of what looks good. What is actually in the best interests of the disabled individuals doesn’t enter their minds.
  
  
• This report stands out because it threatens to make the world worse for those least able to fend for themselves. The report and its findings and recommendations take the tone throughout that although some people have not yet caught up with the caravan of progress and realized that competitive integrated employment is the wave of the future, the evidence favors the superiority of this approach. This is wrong. The Commission received far more public comments from parents of individuals who tried working in mainstream environments and did not thrive there. The “story after story” consists almost exclusively of a few people who testified at the Commission’s public hearing, a tiny smattering of parents whose children transitioned away from a sheltered workshop, and some people in Vermont, most of whom never worked in a sheltered workshop. It is not until page 99 that the report divulges that 98% of the public comments submitted to the Commission support the continuation of 14(c).
  
  
• It is also worth noting that the report found that employees with cognitive disabilities in Virginia and Arizona (which permit the payment of 14(c) wages) had the highest annual mean earnings every year since 2009. Vermont and Maine, which have ended 14(c), overall have the lowest annual mean earnings for employees with cognitive disabilities.
  
  
• But we do not love these disabled people more than their parents, siblings, uncles and aunts do. We do not know the abilities and limitations of these disabled people as well as their family members do. In fact, we do not know these people at all. If it were possible for a person working for subminimum wage to earn the full minimum wage “with a little support,” don’t you think these devoted parents would have leapt at the opportunity? The truth is that these individuals are only able to make even the special minimum wage with a lot of support, not just a little support.
  
  
• The report claims that Section 14(c) may violate the Equal Protection Clause of the 14th Amendment. This can quickly be disposed of. 14(c) does not treat people with disabilities more harshly than people without disabilities. If a person without a disability is not productive enough to warrant the minimum wage (imagine a teenager who does not have the skill of his older coworkers), they aren’t paid commensurate with their productivity. They are fired. 14(c) is an accommodation for people with disabilities. Instead of being fired, they are paid commensurate with their productivity.
  
  
• In regard to Section 14(c) possibly violating the ADA, it is a well-established canon of statutory construction that Congress is presumed not to abrogate an existing law unless it does so explicitly. The ADA does not explicitly abrogate 14(c). If one needed any further evidence of this, simply look to the fact that bills have been introduced to abrogate 14(c). Further, the ADA only requires that employers make reasonable accommodations for qualified individuals. The EEOC’s guidelines for “reasonable accommodations” states: An employer does not have to eliminate an essential function, i.e., a fundamental duty of the position. This is because a person with a disability who is unable to perform the essential functions, with or without reasonable accommodation, is not a “qualified” individual with a disability within the meaning of the ADA.
  
  
• Even if Olmstead is a correct interpretation of the ADA, it does not require integration at all costs. Rather, Justice Ginsburg wrote, placement of individuals in community setting may be required when “the State’s treatment professionals have determined that community placement is appropriate, the transfer from institutional care to a less restrictive setting is not opposed by the affected individual, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities.” Nothing in this holding suggests that States are required to close sheltered workshops when such action is opposed by people with disabilities or their guardians, who represent their interests.
  
  
• Our colleagues note in their findings and recommendations that there is bipartisan support for eliminating 14(c). True. They failed to note that there is also bipartisan support for maintaining 14(c). Rather, it is a matter of realism and trust. The realism lies in recognizing, as so many parents have, that there are some people whose disabilities mean that their life choices are limited. The trust lies in trusting that the parents and guardians of these individuals, who know them far better than we do, can decide whether a job in competitive integrated employment, a 14(c) job in an integrated environment, a sheltered workshop, or day activities are best for their loved ones.

My conclusion is that most objective readers of the CCR report would agree that the 14(c) certificate is a valued option for people with I/DD and their families. Why the CCR majority recommended it be phased-out can only be explained by political appearances and the convenient headline that everyone should at least make the minimum wage. We need to stop listening to the false choice between either earning a minimum wage or not because special minimum wages are based on the local prevailing wage that is always higher than the minimum wage. We need to ignore the false advocates like Jillian Nelson from the Autism Society of MN who want to take this choice away from people with I/DD and Andrea Zuber of The Arc of Minnesota who want us to chase rainbows and unicorns. To become a physician, medical students must take the Hippocratic Oath that includes the promise of “do no harm.” There is absolutely no harm in the 14(c) option being available as an informed choice for people with I/DD and we need to hold them and their Boards accountable for allowing these nonprofits to be used as a platform to devalue and harm people with I/DD that earn a special minimum wage.

In his 09/29/2015 Olmstead ruling, the Honorable Judge Frank made some notable statements that I think support the protection of the 14(c) special minimum wage certificate. These include:

1. “In approving the revised Olmstead Plan, the Court also takes this opportunity to respond to those who have expressed fears about the plan’s purported harmful effects. The Court has received numerous submissions from concerned community members, parents, and advocates expressing fears that the Olmstead Plan will lead to fewer choices and diminished respect for individuals who choose not to fully integrate into community-based settings. Many individuals with disabilities in this state value living and working alongside other individuals with disabilities in settings such as group homes and sheltered workshops.”
2. “The Court emphasizes that the Olmstead decision is not about forcing integration upon individuals who choose otherwise or who would not be appropriately served in community settings.”
3. “The goal of placing individuals with disabilities in the most integrated setting must be balanced against what is appropriate and desirable for the individual.”

Minnesotans should celebrate that their state supports 14(c) as an option for people with I/DD to make a wage based on their productivity that provides real solutions to hundreds of businesses in our local communities. Let us demand truth over appearance, choice versus bias, and family trust over professional platitudes. We must do what the CCR didn’t by trusting the facts, ignoring unsubstantiated and politically motivated allegations, and listening to those with I/DD and their families. For that to happen, YOU the person with I/DD, YOU the family member, and YOU the professional need to protect the 14(c) option in the State of Minnesota especially when they try to shame YOU into silence.