Below-minimum pay for disabled challenged

Disability Rights Ohio questions Fostoria firm

11/19/2015

TIFFIN — Disability Rights Ohio has filed a petition with the U.S. Department of Labor, asserting that a sheltered workshop run by the Seneca County Board of Developmental Disabilities has not adequately assessed how it pays its below-minimum wage employees with disabilities at Seneca Re-Ad Industries, Inc. in Fostoria.

In the petition filed Tuesday, DRO is asking for a wage review for three employees, who believe they are underpaid because their productivity has not been accurately assessed.

Sheltered workshops, a source of much debate in the disability rights community, pay workers less than minimum wage as a way to create employment opportunities for those with physical or mental handicaps. Their pay is determined on a scale comparing their productivity to workers without disabilities doing the same work, so the wage is commensurate with their abilities.

The Re-Ad Center is operated by the Seneca County Board of Developmental Disabilities through a partnership with Roppe Industries, a private flooring company.

Employers in the United States who pay sub-minimum wages must have a certificate from the Wage and Hour Division at the Department of Labor. Special wages are allowed under the Fair Labor Standards Act for those with disabilities.

A similar state law exists in Ohio.

According to federal law, the exemption to pay less than the minimum “does not apply unless the disability actually impairs the worker’s earning or productive capacity for the work being performed. The fact that a worker may have a disability is not in and of itself sufficient to warrant the payment of a subminimum wage.”

Workers have the right to petition for an administrative review of their wages.

The federal minimum wage is $7.25. Ohio’s minimum wage is $8.10.

Ralph Magers, who goes by Joe, has worked at Re-Ad for nearly six years. Mr. Magers, 50, is visually impaired, as is Pamela Steward, 53, who has worked there six years. Mark Felton, 23, has worked at Re-Ad for nearly four years and has autism.

The three work for less than $3 per hour, mostly on an assembly line, for about 25 hours per week. All say their disabilities do not affect their productivity and say they have asked to be moved to higher paid positions without success.

Barbara Corner, lead attorney and employment team leader for DRO, said the wage review is a little-used method for recourse because often employees with disabilities are unaware of their rights. In the case of Seneca County, she said “there was a real disconnect between what the law requires and what is being done.”

Among their complaints, Ms. Corner says employees were not properly tested for their productivity. While working on the assembly line, the employees say they often have to wait for others to complete tasks ahead of them, and therefore the speed at which they are tested for wages is affected by others on the line.

Mr. Magers said it is difficult to work up to his full potential on the assembly line and said he has had trouble getting clear answers on how pay is determined.

“They have to protect the myth that you’re only worth a few dollars an hour on that line,” he said.

Mr. Felton said he decided to go forward with the petition as a matter of fairness.

”All I want is basically for everything to be fair,“ Mr. Felton said. “I don’t think it’s fair. I just want equality and to see that everybody gets a fair wage.“

They also say the prevailing wage against which they are compared is not an accurate reflection of typical wages for comparable work.

The three clients say they have not been paid for required staff meetings and other training.

The petition asks for a hearing from an administrative judge.

According to Department of Labor practices regarding wage disputes, the case must be assigned to an administrative law judge within 10 days of filing. A hearing must be scheduled within 30 days after the case is assigned.

The burden of proof is on the employer to prove they have adequately followed procedures for paying sub-minimum wages.

Ms. Corner said DRO notified the Seneca County Board of Disabilities on Wednesday. Rodney Biggert, director of adult services for the county board, said they received the petition Wednesday and were working on how to move forward.

"We are going to work and investigate to ensure things are done right and support those with developmental disabilities in any way possible."

Mr. Biggert said employees are paid by the companies they work for — in this case Roppe — in a subcontract partnership with the county board. Employees with disabilities are required to be assessed at least every six months, he said.

The petition is supported by the National Federation of the Blind and the Autistic Self Advocacy Network.

Contact Lauren Lindstrom at llindstrom@theblade.com, 419-724-6154, or on Twitter @lelindstrom.