Pay Bump for Disabled Workers Has Chance of Survival Under Trump

The Biden administration’s latest move to cement long-sought raises for workers with disabilities won’t necessarily be tossed aside once President-elect Donald Trump takes office.

Earlier this week, the US Labor Department announced a new rulemaking effort to phase out the Fair Labor Standards Act’s Section 14(c) program, which allows employers to apply for certificates to pay workers with disabilities less than the federal minimum wage of $7.25 an hour.

Opponents of the program say it doesn’t comport with the Americans With Disabilities Act, and that businesses have the resources to train and recruit workers with disabilities. If finalized, the agency would stop issuing those certificates and phase out any current certificates over a three year period.

But given the required Administrative Procedure Act notice-and-comment process, the rule won’t be finalized before Trump is sworn in, leaving the window open for the incoming administration to change the proposal or scrap the rulemaking entirely.

Despite being spearheaded by a Democratic administration, disability advocates say this policy may not face the same fate as other regulations on the chopping block at the DOL.

“I actually believe that the Trump administration could finalize and enforce this rule,” said Maria Town, president and CEO of the American Association of People with Disabilities.

The first Trump administration wasn’t opposed to working on the issue of the Section 14(c) program, said Neil Romano, who served as chairman of the National Council on Disability during the last Trump White House.

“I would think that they would still see the value in that, and not only that, but see it from the point of view of where the entire administration is going” to get more people working in good jobs, said Romano, who is still a council member at the independent, non-partisan federal agency.

WIOA Reauthorization

But Congress may step in to end the program before the Trump administration has the chance to decide.

Worker advocacy groups and at least one Democrat are calling on lawmakers to insert language into the reauthorization of a major workforce development law that would phase out the program permanently.

Sen. Bob Casey (D-Pa.) has placed a hold on fast-track consideration of the Workforce Innovation and Opportunity Act in the Senate to press his colleagues to include the bipartisan Transformation to Competitive Integrated Employment Act in the legislation, according to a source familiar with his thinking.

That bill would phase out the 14(c) program over five years and bar the Secretary of Labor from issuing the certificates in the future. It also provides funding to states to help transition workers with disabilities into other services.

“Every worker deserves to be paid a fair wage, and Americans with disabilities are no exception. For years, I have pushed to end this shameful, discriminatory practice, and I will not let up until we have ensured workers with disabilities get the fair treatment they deserve,” Casey said in a statement.

But at least one Republican key to getting the bill through the GOP-controlled House, Rep. Virginia Foxx (N.C.), is vehemently opposed to ending the program.

“This is misguided and irresponsible,” Foxx said in a statement on the DOL’s proposal. “We have plenty of evidence that shows 14(c) doesn’t destroy opportunities for individuals with disabilities, it protects them. In states that have eliminated or transitioned away from the 14(c) program, those who were part of them often end up jobless and isolated.”

Lobbying Push

Worker and disability advocates are planning to lobby the incoming administration to finalize the proposal announced Dec. 3.

“I have no idea what’s going to happen in the Trump administration, but we will be encouraging them to finalize this rule and ultimately to enforce it,” said AAPD’s Town.

There are some signs that the incoming Trump administration wouldn’t be completely opposed to the rule. For example, when Trump took office in 2017, the DOL didn’t scrap the regulatory process that began under the Obama administration, instead placing it on the backburner on the “long-term actions” list.

Former DOL officials under Republican administrations, however, expressed support for the program continuing.

Patrick Pizzella, who served as the Deputy Secretary of Labor during Trump’s first term, said he largely heard from families who said the program provided significant value.

“Although it impacts very few people today, I think it’s a worthwhile program to continue,” he said of his position on the issue during the previous administration.

Paul DeCamp, former Wage and Hour Administrator during the George W. Bush administration, said he was skeptical the agency had the authority to end the program since it was established by Congress.

“I would be very surprised if the incoming administration were receptive to essentially repealing the 14(c) program,” said DeCamp, now a management-side attorney at Epstein Becker & Green PC.

“Congress wrote Section 14(c) into the FLSA in 1938. It’s been part of the law for almost 90 years,” he said. “It’s not an agency’s prerogative to say, ‘You know what, that thing that Congress put in the law? We don’t think it’s necessary anymore, so we’re just not going to do it.’”