Over the past decade, the Employment First movement has made substantial progress in the country. While it encourages the participation of more people with disabilities in the competitive workforce, it also curtails too many opportunities for individuals with more severe disabilities. In 1986, the Fair Labor Standards Act was amended to include Section 14C, which acknowledges that some individuals cannot keep pace in fully integrated employment and need other accommodations. Under Section 14C, employers and organizations that meet strict standards are granted the ability to pay commensurate wages according to an employee’s productivity level, an arrangement that benefits employer and employee alike. Now, 14C-certified organizations are struggling to survive as people push for Employment First laws and policies that would eradicate jobs and programs that fall outside of competitive integrated employment.
Whether 14C will remain at all is up to Congress, since 14C is part of federal law, even though it is carried out at the state level. Organizations like the Association of People Supporting Employment First and other lobbyists are pushing the federal government to get rid of 14C, and legislation has been put forth to this end by those like Pennsylvania’s U.S. Senator Bob Casey, a strong proponent of competitive integrated employment and the elimination of commensurate or subminimum wages. An Employment First mindset is setting in: An increasing number of documents and policies from the federal government as well as from state governments are favoring community-based programs and undermining 14C and facility-based programs — even facilities that pay participants minimum wage or more.
To show lawmakers the value of 14C and the benefits it provides for people with disabilities, people from around the country who are seeking to preserve facility-based work programs and commensurate wage work founded the Coalition for the Preservation of 14C, now known as Coalition for the Preservation of Employment Choice. The organization supports “the elimination of barriers to employment” for people with disabilities, its website states, and the coalition’s mission is to “advocate, educate, and promote efforts that provide individuals with significant disabilities a voice for their personal vocational and employment choice.” The organization is working to inform both politicians and the public about the need to continue to provide workplace settings that are safe, supportive and positive for individuals with disabilities. The coalition has conducted meetings with more than 70 lawmakers so far to educate them on how eliminating 14C would drastically reduce the employment opportunities available to the disabled community and would prevent countless individuals from pursuing work that aligns with their goals, preferences, skill levels and needs.
Tens of thousands of individuals who are currently employed through 14C certificates rely on work centers with extensive accommodations and supports, and these individuals are likely to face significant hardship should such work opportunities be eliminated. Since the availability of 14C programs in no way prevents individuals with disabilities from trying to find employment in the competitive integrated workforce, the call to eradicate 14C and facility-based programs is misplaced.
“The disability community is a large and diverse community, with varying levels of need for supports and accommodations in the workplace,” the coalition declared in a white paper published in January. “The disability community should not be treated with a monolithic, one-size-fits-all approach. While there is general agreement that competitive, integrated employment is the goal for most individuals with disabilities, it may not be a realistic and desirable goal for everyone. Indeed, individuals with the most significant intellectual and developmental disabilities should have a right to choose a workplace that provides the level of protection, support, and accommodation needed for them to thrive in a workplace environment.”
The paper continued, “If 14(c) is eliminated, organizations offering facility-based services will need to scale these programs down or close entirely, to the detriment of the most vulnerable members of the workforce, who rely on the 14(c) program and have not asked that it be eliminated. This is already happening in states where 14(c) and commensurate wages have been eliminated. A fraction of participants are being supported in the community, while those most in need of supports are left unemployed or forced into day habilitation or other services not of their choosing. Without the facility-based programs and supports, these individuals are often left at home.”
Although 14C remains on the books for now, the state government in Pennsylvania is already putting pressure on centers and programs that provide facility-based work for people with disabilities, since the law increasingly favors Employment First. In March 2016, Governor Wolf issued an executive order establishing Employment First as the policy for all state agencies under his jurisdiction, and in 2018 the near-unanimous bipartisan passage of the Employment First Act, or Act 36, resulted in the formation of the Governor’s Cabinet for People with Disabilities, which in August 2019 released a three-year plan establishing goals for implementing Employment First. Among the plan’s priorities were listed the need to “review, identify, and change policy and practice to align with the letter and the spirit of the Employment First Act of 2018,” and the need to “implement, monitor, and provide accountability for the Employment First Act in Pennsylvania.”
Already, government agencies that oversee funding for programs and facilities are making these sorts of priorities clear. Priscilla Eberly, Rep. Dave Zimmerman’s chief of staff, told The Lancaster Patriot that Zimmerman has been informed that the discrepancies in funding are now quite staggering, such as community-based programs receiving a 15.2% increase in funding while facility-based programs received only a 2.3% increase.
“The federal dollars come through the state and are given to the agency, and the agency decides who gets what amount of money,” she explained. “They say they use a market-based approach, but obviously with the discrepancy of the 15.2% increase to the 2.3% for facility-based services, it’s quite a large difference. So as for the Pennsylvania legislature, we are going to continue to fund programs that we have in place to help people with intellectual disabilities, but we don’t have control over how the funding is distributed. That’s under Governor Wolf, and it’s ultimately up to the agency to decide on those percentages.”
Since the Employment First Act is part of Pennsylvania law and is not merely an executive order, it will be harder to undo the impact of the policies. If the federal government takes away 14C or if the governor blocks the provision, it would be up to Pennsylvania’s General Assembly alone to find a way to fund the services that so many citizens in the state find essential to their way of life.
So far, the legislature has not been able to do much under the current administration to support the disabled community. Even as facility-based services in general start to lose funding, state facilities that were designed to provide a haven for individuals with disabilities are on track to be emptied out and shut down. The human services field is already in crisis with a lack of workers and a lack of funding, and the closure of state institutions is hardly going to improve the situation. Although private facilities are in constant need of staff nowadays, it’s unlikely that employees from the state facilities would transition to work at private facilities instead, said Brian French, the director of programs at Lighthouse Vocational Services in New Holland. He told The Lancaster Patriot that since these state employees’ current jobs are unionized civil service positions, these workers would be taking a 30% pay cut if they moved to the private sector. They’d be far more likely to get desk jobs in Harrisburg or retire and collect pensions, he explained — and this would further reduce the number of people who are supporting the disabled population.
French said he is worried that the Employment First Act and the language used in Employment First policies in Pennsylvania are setting up a framework for much more. “Right now it doesn’t have any enforcement ability, but I think it’s setting a framework to push providers away from facility-based services and to push toward everything happening in the community,” he said. “From what I’ve seen here, there’s a clear movement. We need to get ahead of it. We need to begin pushing back now before the state all of a sudden comes out with something like North Carolina did, saying, ‘You cannot accept any more referrals into your facility-based services.’ I mean, that’s just a slow death. North Carolina facilities have just been sentenced to slow death with that. So we’re trying to get ahead of that and inform other providers, inform the public, inform parents, inform legislators that we see this coming and we need to fight now before we’re up against the brick wall.”
To get ahead of such problems, he said, there needs to be a movement of the public to stand against the idea that competitive integrated employment is the only acceptable option and to stand for more awareness for the needs of the disabled community. “They need to rise up. They need to organize and rise up and let the government officials and their elected officials know that this isn’t going to work for us,” French said. “This isn’t working for us and it’s not going to work for us. We need services for our children. We need a place for them to go.”
The problem, he said, is that too few people are educated about the issue and fewer still have chosen to engage, aside from the directly affected families. “The only voices that get heard are the ones that are pushing for all the progressive agenda, and the parents who have their child at home are working to take care of their son or daughter, and they often don’t have the energy or the time,” he said. “But if they could somehow get organized and rally together, I think that’s what needs to happen. That’s why we’re trying to form our parent group here and begin to maybe get that started at Lighthouse in some small way.”
Eberly had the same advice. “I would definitely suggest that families of people with intellectual disabilities reach out to Congress, the federal counterparts that actually house the 14C program,” she said, “but also reach out to Pennsylvania legislators and Governor Wolf to let them know how important that program is.” Even people who are not directly affected can help, she added, and she suggested that people contact organizations like the Coalition for the Preservation of Employment Choice to discover ways to get involved, such as meeting with legislators or building community awareness. “In government,” she said, “it’s usually the squeaky wheel that gets the grease.”
Legislators need to be made aware of the desires of the people they represent, including people with disabilities who want the freedom to make their own choices, like working in facilities that are designed to be safe, supportive places for them to hold a job. Their voices need to be amplified more than they have been, said French, since even today there are statistics that show that people with disabilities are the most discriminated-against group in the country. They have no big lobby or major groups out there connecting with the government or the public, he said, and the system devalues these people with consistent underfunding.
Competitive integrated employment is an overall good for many, but making it the only option disregards the employee and even the employer. “The bottom line is, the person who makes a decision about whether or not someone is employable is the employer,” French said. “It’s not people in Harrisburg or Washington or anywhere else that make that decision, it’s the employer who makes that decision. They’re not going to hire somebody who can’t produce at some reasonable level to justify the wage they’re paying.” Putting people with more debilitating disabilities in direct competition with people who have no such difficulties is not going to solve the problems that individuals with disabilities face.
French also believes that these individuals are much more important to society than is acknowledged when they are viewed merely as workers. “I want people to see the value of the individuals that we serve and support, that they have intrinsic worth,” he said. “That they’re part of God’s creation just like the rest of us.” That is why he hopes that more people will rise up to defend the rights of people with disabilities and find places for them to engage in the community as individuals — unique people with their own gifts and their own preferences — rather than forcing them to take part in competitive employment as the top and only priority.
There are undoubtedly ways that 14C programs and facilities can be improved to enhance the lives of the individuals who currently rely on them — but that is why Congress, each state, and the public should commit to lending their support to finding a path forward that accounts for the fact that the disabled community is filled with individuals. Everyone should be free to find meaningful employment and engagement in their communities with the widest range of options possible.