The Fair Labor Standards Act (FLSA) establishes standards for employment, including compensation, such as minimum wage and overtime pay, and worker regulations, like youth employment and disabled workers. It applies to all employees in the private sector, and employees of federal, state, and local government.
Disability Pay in South Carolina under the FLSA
When it comes to compensating employees with disabilities, the FLSA includes a section that allows employers to request a special certificate which permits them to pay disabled workers sub-minimum wage under certain circumstances. The certification process is completed through the Department of Labor (DOL) and requires the employer to evaluate the productivity of the employee. If the employer can establish that the employee’s productivity is less than that of an experienced worker performing the same job in the same environment, then they determine lower pay based on the discrepancy of productivity. This compensation must be reevaluated on a regular basis, and it must be updated to match any increases in pay to the experienced worker.
Federal Contractors and ADA Protections
Federal contractors whose minimum wage is determined by executive order are exempt from this certificate, including the executive order established by President Biden last year to raise federal contractor minimum wage to $15 per hour. When the Americans with Disabilities Act (ADA) was established in 1990, it carved out protections for disabled workers who do not apply to the FLSA certificate. Per the ADA, disabled workers who are capable of performing the same job as another worker with reasonable accommodation, they cannot be discriminated against based on their disability, including their pay.
Changes to FSLA Disability Pay
Established in 1938, the intent of this law was to encourage companies to hire more disabled workers. However, despite the good intentions of the original law, bad actors have taken advantage of the certificate to exploit their workers. President Biden has announced that he is proposing to revoke the FSLA certificate program that allows employers to pay disabled individuals sub-minimum wage, which has received bipartisan support. As of May 24 2022, South Carolina, has become the 14th state to ban the use of these certificates. The new legislation bars employers from participating in the program and requires that any current employers paying disabled sub-minimum wage to revise their compensation plans by August 2024.
The removal of this program may affect disabled workers’ ability to find employment, and it may inhibit their ability to receive benefits with maximum income requirements. As this program is being phased out, it is imperative that all members of the workforce, employers and employees alike, continue to encourage and require that disabled workers receive the same treatment and compensation as their coworkers throughout the US.
About The Noble Law Firm
The Noble Law is a women-owned employment law firm with offices in North Carolina and South Carolina, founded by Laura Noble in 2009. Specializing in wrongful termination, workplace harassment, workplace retaliation, workplace mediation, and neutral third-party investigations, the firm is committed to leveling the playing field for employees. Their focus is on delivering positive outcomes with empathy and integrity, while also driving societal change in employment law.
The firm emphasizes diversity, collaboration, and innovation, fostering a balanced work environment that values the personal lives of its staff. With a strong commitment to technology and efficiency, The Noble Law provides personalized attention to a select group of clients, handling cases involving harassment, discrimination, retaliation, and more. The team’s extensive litigation experience allows them to deliver thorough and assertive representation.
