Wage and Hour Division (WHD)
Section 64d00: Introduction
- In order to pay a SMW to a worker with a disability, an employer must first obtain a certificate from WH. All section 14(c) certificates are now processed and issued by the Section 14(c) Certification Team (Certification Team) located in the Midwest Regional Office (Chicago). Employers apply for subminimum wage certificates using form WH-226-MIS and supplemental form WH-226A. The certificate itself is issued on form WH-228-MIS. An example of the certificate (WH-228-MIS) is included at the end of this chapter (see FOH 64k01).
- These certificates authorize the employment of workers with disabilities in accordance with the requirements of Regulations 29 CFR Part 525. They remain in effect for the period indicated on the certificate or until withdrawn or revoked, provided the employer maintains compliance with all applicable provisions of the FLSA.
- The certification process is one tool the Department uses to help employers achieve and maintain compliance with section 14(c). But because the process constitutes a review of only a limited amount of employer-provided information, the certificate is not a statement of compliance. Issuance of a certificate will not convey a good faith defense to employers should violations of the FLSA, SCA, or PCA occur, as certificates may be revoked retroactively as of the date of the violation(s). In the past, some employers have mistakenly thought that because WH had issued them a certificate, WH was acknowledging their compliance. In order to avoid future misunderstandings, certificates are now issued with such a disclaimer.
- The regulations permit WH to grant employers temporary authority to pay SMWs under certain circumstances to workers with disabilities pursuant to vocational rehabilitation programs of the Veterans Administration or a vocational rehabilitation program administered by a State agency (see Regulations 29 CFR Part 525.8).
- The certificates are issued on an establishment basis to three kinds of facilities:
- work centers (certificate will read "Work Center"),
- hospitals or residential care facilities for the employment of patient workers (certificate will read "Patient Worker"), and
- business establishments for the employment of "special workers" (certificate will read "Business Establishment" or "SWEP"). The right hand portion of each certificate will indicate the kind of facility to which it was issued.
- Work Center Certificates. Work centers (formerly referred to as "sheltered workshops") historically have provided rehabilitation services, day treatment, training, and employment opportunities at their facilities to individuals with disabilities.
- Although the enterprise need only submit one application, Wage and Hour will issue separate certificates for an employer's main facility and all branch facilities.
- Separate certificates are not issued for individual work sites where employees with disabilities may perform work but where the work center maintains no other presence (military commissaries, restrooms at National Parks, lawns that are being maintained, etc.). Work center certificates are portable to these job sites.
- Work center certificates also cover the employment of workers with disabilities who remain on the payroll and under the supervision of the work center, but are placed at a competitive work site or at a business establishment (these locations are sometimes referred to as "enclave work sites" or supported employment work sites). In these instances, the enclave work site employer does not have to obtain his or her own certificate.
- Patient Worker Certificates. Hospitals and residential care facilities (institutions) frequently use their patients to perform janitorial, grounds maintenance, food service, and other functions that are of consequential economic benefit to the institution. Certificates are issued to these facilities to cover patients who have disabilities that are employed in this manner regardless of whether or not the patient resides at the institution. If the institution also operates a work center, it must apply for an additional certificate for the work center. If the institution places patients at work sites in business establishments in the community, it must either obtain a work center certificate or ensure that the business has a certificate authorizing the payment of SMWs to workers with disabilities.
- Business Establishment Certificates. Employers in private industry who choose to employ workers with disabilities at SMWs must also obtain
- If the employer is a multi-establishment enterprise, WH policy and procedures require that certificates be obtained for each establishment in which workers with disabilities will be employed. However, if an individual with a disability is placed at a business by a work center, supervised by the work center, and carried on the work center's payroll, the business need not obtain a certificate. This arrangement is sometimes called supported employment or an "enclave work site." In these situations it is the responsibility of the work center to obtain the certificate.
- The Business Establishment box on the WH-226 is also the one used by schools with School Work Experience Programs (SWEP). These programs place students with disabilities at work sites in the community. Jobs involved and the conditions of employment must comply with the child labor standards when the student is less than 18 years of age.
- When schools apply for certification they must list each establishment in which a student will be placed (this listing will be found in item three on the WH-226). An attachment may be required if there are numerous locations.
- The school must also list each student participating in the program on the supplemental information form (WH-226A). The school will be issued a certificate for each establishment listed on the application and it is the school's responsibility to provide a copy of the certificate to the each business establishment and keep the original on file at the school.
- Employers seeking temporary authority to employ workers with disabilities referred to them by a vocational rehabilitation program of the Veterans Administration or a State vocational rehabilitation program are also issued "Business Establishment (Special Worker)" certificates.
- The certificates do not establish specific subminimum wage rates. They do, however, require the payment of at least commensurate wage rates (explained in FOH 64g05) to all workers who have disabilities for the work being performed (see FOH 64g00). The certificates apply to all work covered under the FLSA, the SCA, and the PCA.
- Applications for SMW certificates (Forms WH-226 and 226A) may be obtained from any WH Regional Office and the NO, OEP, Child Labor and Special Employment Team. They may also be viewed on, and "downloaded" from, the WH web site at http://www.dol.gov/whd/forms/.
- On April 1, 1996, the 14(c) SMW certification process was centralized in the Certification Team of the Midwest Regional Office. The Certification Team processes all applications for 14(c) certification and issues or denies certificates under this program. Employers shall mail completed applications to:
U.S. Department of Labor
Employment Standards Administration
Wage and Hour Division
230 South Dearborn Street, Room 524
Chicago, Illinois 60604-1591
- The Certification Team will process each application and, as appropriate, issue or deny a certificate, in accordance with the regulations and established guidelines.
- Employer questions regarding the status of specific applications or renewals should be referred to the Certification Team located in the Midwest RO. The name and telephone number of the Certification Team Wage Specialist that will be processing the employer's certificate is printed on the renewal application the Team mails to the employer. This same information is also printed on the certificate when it is issued.
- Questions regarding compliance, enforcement, or any other aspect of section 14(c) should be handled locally by the DO or the Regional Section 14 Team Leader.
- The Certification Team has divided the 50 States into five groups. When requesting copies of applications, certificates, or prior history, the INV should contact the appropriate Wage Specialist by phone or by fax [(312) 596-7207]. The appropriate phone numbers are listed below:
- (312) 596-7198: California (business establishments and schools only), Colorado, District of Columbia, Florida, Guam, Illinois, Iowa, Kansas, New Jersey, Oklahoma, Puerto Rico, Pennsylvania, Rhode Island, and the Virgin Islands.
- (312) 596-7199: Arizona, California (community rehabilitation centers and hospital/residential care facilities only), Connecticut, Delaware, Idaho, Indiana, Maine, Montana, Nebraska, North Carolina, Tennessee, Texas, Vermont, Virginia, Washington, and Wyoming.
- (312) 596-7200: Alabama, Arkansas, Hawaii, Louisiana, Maryland, Michigan, Missouri, Nevada, New Hampshire, North Carolina, South Carolina, Utah, West Virginia, and Wisconsin.
- (312) 596-7202: Alaska, Georgia, Kentucky, Massachusetts, Minnesota, Mississippi, New Mexico, New York, Ohio, Oregon, and South Dakota.