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- Employment Law Guide A Companion to the FirstStep Employment Law Advisor |
Wages and Hours Worked: Workers with Disabilities for the Work Being Performed
Updated: September 2009
Fair
Labor Standards Act of 1938 (FLSA), as amended (PDF)(http://www.dol.gov/whd/regs/statutes/FairLaborStandAct.pdf) Who is CoveredThe Fair Labor Standards Act (FLSA) is administered by the Wage and Hour Division (WHD). The Act establishes minimum wage, overtime pay, recordkeeping, and youth employment standards affecting full-time and part-time workers in the private sector and in federal, state, and local governments. Section 14(c) of the FLSA authorizes employers, after receiving a certificate from the Wage and Hour Division, to pay special minimum wages – wages less than the federal minimum wage – to workers who have disabilities for the work being performed. The certificate also allows the payment of wages that are less than the prevailing wage to workers who have disabilities for the work being performed on contracts subject to the McNamara-O’Hara Service Contract Act (SCA)(http://www.dol.gov/whd/contracts/sca.htm) and the Walsh-Healey Public Contracts Act (PCA)(http://www.dol.gov/whd/contracts/pca.htm). Basic Provisions/RequirementsEmployers must obtain an authorizing certificate from the Wage and Hour Division prior to paying special minimum wages(http://www.dol.gov/whd/regs/compliance/whdfs39f.pdf) to employees who have disabilities for the work being performed. Employers shall submit a properly completed application (Form WH-226-MIS(http://www.dol.gov/whd/forms/fts_wh226.htm), Application for Authority to Employ Workers with Disabilities at Special Minimum Wages) and the required supporting documentation to: United States Department of Labor Certificates covering employees of work centers and patient workers normally remain in effect for two years. Certificates covering workers with disabilities placed in competitive employment situations or School Work Exploration Programs (SWEPs) are issued annually. Commensurate wage rates. Special minimum wages(http://www.dol.gov/whd/regs/compliance/whdfs39f.pdf) must be commensurate wage rates - based on the worker's individual productivity, no matter how limited, in proportion to the wage and productivity of experienced workers who do not have disabilities performing essentially the same type, quality, and quantity of work in the geographic area from which the labor force of the community is drawn. The key elements in determining commensurate rates are:
All special minimum wages must be reviewed and adjusted, if appropriate, at periodic intervals. At a minimum, the productivity of hourly paid workers must be reevaluated every six months and a new prevailing wage survey must be conducted at least every twelve months. Employee RightsAll employees subject to the provisions of the FLSA have a right to file a private suit for back pay due under the FLSA and an equal amount of liquidated damages, plus attorney’s fees and court costs. In addition, any employee paid a special minimum wage (or his or her parent or guardian) may petition the Secretary of Labor, under FLSA Section 14(c)(5), to have the special minimum wage reviewed to determine if the wage is justified. The review, if granted, will be conducted by a U.S. Department of Labor Administrative Law Judge. Such petitions are completely independent of any enforcement action that may be undertaken by the Wage and Hour Division. Although the petition does not have to follow a particular format or form, it must be signed by the individual (or his or her parent or guardian) and should contain the name and address of the individual filing the petition and the name and address of his or her employer. The Wage and Hour Division’s role in the petition process is solely to serve as a conduit—the means through which the petition is forwarded to the Office of the Chief Administrative Law Judge. The Wage and Hour Division does not serve as a party in this matter. It does not represent or advocate on behalf of either the employee with a disability or his or her employer. In all matters relating to the propriety of a special minimum wage the burden of proof rests with the employer. See Regulations 29 CFR Part 525.22(http://www.dol.gov/dol/allcfr/esa/title_29/part_525/29cfr525.22.htm) for more information. Recordkeeping, Reporting, Notices and PostersNotices and PostersNotices. Each worker with a disability receiving a special minimum wage under FLSA Section 14(c), and, where appropriate, the parent or guardian of such worker, shall be informed orally and in writing by the employer of the terms of the certificate under which such worker is employed. In addition, employers must display both the certificate and the Wage and Hour Division poster, Notice to Workers with Disabilities Paid at Special Minimum Wages (WH Publication 1284(http://www.dol.gov/whd/regs/compliance/posters/disab.htm)). Posters. Every employer of employees subject to the FLSA’s minimum wage provisions must post, and keep posted, a notice(http://www.dol.gov/whd/regs/compliance/posters/flsa.htm) explaining the Act in a conspicuous place in all of their establishments. Although there is no size requirement for the poster, employees must be able to readily read it. The FLSA poster is also available in Spanish(http://www.dol.gov/whd/regs/compliance/posters/flsaspan.htm), Chinese(http://www.dol.gov/esa/regs/compliance/posters/minwagecn.pdf), Russian(http://www.dol.gov/esa/regs/compliance/posters/FLSAPosterRuss.pdf), Thai,(http://www.dol.gov/whd/regs/compliance/posters/MinWageThai.pdf) Hmong,(http://www.dol.gov/whd/regs/compliance/posters/MinWageHmong.pdf) Vietnamese(http://www.dol.gov/whd/regs/compliance/posters/minwageViet.pdf), and Korean(http://www.dol.gov/whd/regs/compliance/posters/minwageKorean.pdf). There is no requirement to post the poster in languages other than English(http://www.dol.gov/whd/regs/compliance/posters/flsa.htm). Certain industries have posters designed specifically for them. Employers of Agricultural Employees (PDF)(http://www.dol.gov/whd/regs/compliance/posters/wh1386Agrcltr.pdf) and State & Local Government Employees (PDF)(http://www.dol.gov/whd/regs/compliance/posters/wh1385State.pdf) can either post the general Fair Labor Standards Act poster(http://www.dol.gov/esa/regs/compliance/posters/flsa.htm) or their specific industry poster. There are also posters for American Samoa (PDF)(http://www.dol.gov/esa/minwage/americanSamoa/ASminwagePoster.pdf) and Northern Mariana Islands (PDF)(http://www.dol.gov/whd/regs/compliance/posters/cnmi.pdf). Under FLSA Section 14(c), employers of workers with disabilities are also required to post the “Employee Rights for Workers with Disabilities/Special Minimum Wage Poster(http://www.dol.gov/whd/regs/compliance/posters/disab.htm)” poster. This poster explains the conditions under which special minimum wages may be paid. The poster must be posted in a conspicuous place on the employer’s premises where employees and the parents and guardians of workers with disabilities can readily see it. RecordkeepingIn addition to the recordkeeping requirements imposed on all employers subject to the FLSA, those paying special minimum wages to workers with disabilities under Section 14(c) must also maintain records regarding the disabilities of the workers, prevailing wage surveys, work measurements, and individual productivity. See the following for the FLSA recordkeeping requirements. Every employer covered by the FLSA must keep certain records. Employers must keep records on wages, hours, and other information as set forth in the Department of Labor's regulations. Most of this data is the type that employers generally maintain in ordinary business practice. There is no required form for the records. However, the records must include accurate information about the employee and data about the hours worked and the wages earned. The following is a listing of the basic payroll records that an employer must maintain:
For a full listing of the basic records that an employer must maintain, see the Wage and Hour Division Fact Sheet #21: Recordkeeping Requirements Under the FLSA(http://www.dol.gov/whd/regs/compliance/whdfs21.pdf). Employers are required to preserve for at least three years of payroll records, collective bargaining agreements, and sales and purchase records. Records on which wage computations are based should be retained for two years. These include time cards and piecework tickets, wage rate tables, work and time schedules, and records of additions to or deductions from wages. ReportingThe FLSA does not contain any specific reporting requirements; however, the above referenced records must be open for inspection by the Wage and Hour Division's representatives, who may ask the employer to make extensions, computations, or transcriptions. The records may be kept at the place of employment or in a central records office. Penalties/SanctionsEmployers of workers with disabilities are subject to the same penalties and sanctions as other FLSA-covered employers as outlined below. In addition, certificates can be retroactively revoked when the employer violates the terms of the certificate or any statute administered by the Wage and Hour Division. The Department of Labor uses a variety of remedies to enforce compliance with the Act's requirements. When Wage and Hour Division investigators encounter violations, they recommend changes in employment practices to bring the employer into compliance, and they request the payment of any back wages due to employees. Willful violators may be prosecuted criminally and fined up to $10,000. A second conviction may result in imprisonment. Employers who willfully or repeatedly violate the minimum wage or overtime pay requirements are subject to civil money penalties of up to $1,100 per violation. When the Department of Labor assesses a civil money penalty, the employer has the right to file an exception to the determination within 15 days of receipt of the notice. If an exception is filed, it is referred to an Administrative Law Judge for a hearing and determination as to whether the penalty is appropriate. If an exception is not filed, the penalty becomes final. The Department of Labor may also bring suit for back pay and an equal amount in liquidated damages, and it may obtain injunctions to restrain persons from violating the Act. The Act also prohibits the shipment of goods in interstate commerce that were produced in violation of the minimum wage, overtime pay, child labor, or special minimum wage provisions. Relation to State, Local, and Other Federal LawsSome state constitutions or minimum wage statutes may not permit the payment of special minimum wages that are less than the state minimum wage to workers with disabilities. The issuance of a certificate under the provisions of FLSA Section 14(c) for payment of special minimum wages does not excuse noncompliance with any such state law establishing higher minimum wage standards. The WHD recommends that employers contact their appropriate state authorities for guidance on this matter. Compliance Assistance AvailableThe Department of Labor provides employers, workers, and others with clear and easy-to-access information and assistance on how to comply with the Fair Labor Standards Act. Among the many resources available are:
Additional compliance assistance including explanatory brochures, fact sheets, and regulatory and interpretive materials is available on the Compliance Assistance “By Law”(http://www.dol.gov/compliance/laws/comp-flsa.htm) Web page. DOL ContactsWage and Hour Division(http://www.dol.gov/whd/)
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