February 8, 2016

“It is one of the obvious but not often really understood facts of life that there can be no share of market without share of mind…  The things people believe in are as real to them as facts.”

– Memo from advertising team to Ford Motor Company, 1963

I am currently reading “Once in a Great City: A Detroit Story.” It’s set in 1963 and Detroit is on top of the world. The city’s leaders are among the most visionary in America at the time: Grandson of the first Ford, “The Deuce,” Henry Ford II; influential labor leader Walter Reuther; Motown’s founder Berry Gordy; the Reverend C.L. Franklin and his amazing daughter, Aretha; super car salesman Lee Iacocca – and where Martin Luther King delivered his “I Have a Dream” speech two months before he made it famous in the Washington march.

Yet within all this excitement and promise, the book also reveals the shadow of misfortune; before the riot, white flight, manufacturing competition from abroad, civic corruption, and the litany of woe that came to characterize the city leading up to bankruptcy – prior to the substantive regeneration I believe we are witnessing today. Detroit at its peak was in some ways threatened by its own framework; success, in a sense, leading too many of its leaders away from awareness of the changing world around them.

There are parallels to our own experience here.  As an association, we have formed an effective network of mission driven organizations serving individuals with disabilities and other barriers to community access, particularly in the area of employment. But MARO has also recognized that the world around us is changing.  It has come with acknowledgement that the clear direction of public policy is competitive employment in an integrated setting, and our organizations must align with these principles to deliver on their mission – to optimize independence and self-sufficiency, and remove barriers to community access.

As reported this week in a MARO Info Alert, a US Department of Labor Administrative Law Judge recently ruled on a case in Ohio regarding three individuals with disabilities who were working under a special minimum wage certificate, and found the employer not to be in compliance with the law.  The three individuals with disabilities were supported by state and local advocacy groups in filing the first ever petition with an Administrative Law Judge to seek a review of their wages.

In the decision, the judge found that the community rehabilitation program failed to prove that the individuals’ disabilities kept them from accomplishing their assigned tasks.  As such, the judge decided that their wages were not calculated correctly and the employer must pay at least minimum wage to the three individuals.  The judge also ruled that the three individuals must receive back pay, liquidated damages, and attorney fees and reasonable litigation costs.

This will doubtlessly inspire another round of calls for the elimination of Section 14 (c) of the Fair Labor Standards Act. This example of noncompliance will be promoted as the norm – nurturing the idea that the use of this provision in the law is universally exploited. This is simply not true, but by virtue of repetition the belief can become as real as the facts.

Let me be clear in response: MARO supports efforts to enhance compliance and enforcement of Section 14(c) through increased oversight and enhanced training and education.

Relative to the composition of our association, and use of this provision of the Fair Labor Standards Act, here are the facts:

– As of January 2016, there are 55 community rehabilitation organizations (CROs) in Michigan that hold a 14(c) certificate, authorizing payment of special minimum wages. 31 of these CROs are currently MARO members.

– This means that among current MARO members, 45% of these organizations do not hold a 14 (c) certificate.

MARO does not actively lobby in support of “subminimum” wages. We do feel that any movement to eliminate or phase out 14 (c) should not advance without careful consideration of the consequences of eliminating this employment option for people with disabilities. The reason that a number of our member organizations choose to hold a 14(c) certificate authorizing payment of special minimum wages, commensurate with productivity, is the recognition that by doing so, they can create employment opportunities for individuals with significant disabilities – jobs that without this provision in the law would not otherwise currently exist.

In a manufacturing environment, when a productivity level is not consistent with assigned unit labor costs, it is simply not sustainable as a business practice – this is true for workers with and without disabilities. This provision in the Fair Labor Standards Act authorizes businesses that strive to employ people with disabilities to provide an option for this type of employment – it is simply an option.

MARO supports initiatives to enhance meaningful, informed choice for individuals with the most significant disabilities, including increased opportunities to work in competitive integrated employment (at or above the minimum or prevailing wage) and self-employment. We fully support the recent Executive Order on Employment First. We believe in the capability of every person, equal access, and innovation.

As an association, we also recognize that many community jobs are no longer industrially based and do not depend on production rates in the manner that industrial jobs do; we are promoting best practices in the field of job development and job coaching, in pursuit of competitive employment outcomes; and we are actively engaged in programming to develop a stronger community of practice in the field of benefits coordination and counseling – as fear of losing benefits remains among the greatest disincentives to employment success. We must also work toward a rate structure that acknowledges that the supports required to achieve the desired outcome of competitive integrated employment will be more intensive, and more expensive, than currently designed.  We promote business practices that result in recognized credentials of service quality. And all these things must align to effect continuous improvement, and meaningful systems change.

MARO members have consistently and effectively enhanced quality of life of individuals served for many years – we are compelled to ensure that light is shone upon any shadows of disappointment; that our systems of service provision are strengthened and well-aligned with public policy and funding to eradicate any cracks through which those who need support may fall; and act on our belief that the capability of every person can be fully discovered and connected to their community.