A little known law that permits the disabled to be paid sub-minimum wage is currently under attack. To foster employment opportunities for disabled workers in the mainstream workforce, the Fair Labor Standards Act (FLSA) has contained, since its passage, a relatively unknown provision under Section 14(e) that allows employers to pay disabled workers sub-minimum wages as long as the wages are commensurate with the disabled worker’s productivity. The prerequisites to paying sub-minimum wage to the disabled are stringent and include:
- Preparing a job description for the employee that identifies duties and responsibilities, skills required, and specifies the days and hours of work;
- Identifying the prevailing wage for the position compiled internally or, if necessary, from similar businesses in the area;
- Determining the productivity level of the disabled employee compared to non-disabled workers (e.g., through time/motion studies); and
- Submitting the information on an application to the Secretary of Labor for a special wage permit allowing for the payment of sub-minimum wages.