Twenty-Two Cents an Hour

Disability Rights and the Fight to End Subminimum Wages

Doug Crandell

• Publisher: ILR Press
• Year: 2022
• ISBN:
  9781501762635
• Topic: Social Sciences
• Subtopic: Disabilities in Sociology
• Index: Social Sciences

In Twenty-Two Cents an Hour, Doug Crandell uncovers the harsh reality of people with disabilities in the United States who are forced to work in unethical conditions for subminimum wages with little or no opportunity to advocate for themselves, while wealthy CEOs grow even wealthier as a direct result.

As recently as 2016, the United States Congress enacted bipartisan legislation which continued to allow workers with disabilities to legally be paid far lower than the federal minimum wage. Drawing on ongoing federal Department of Justice lawsuits, the horrifying story of Henry's Turkey Farm in Iowa, and more, Crandell shows the history of the policies that have led to these unjust outcomes, examines who benefits from this legislation, and asks important questions about the rise of a disability industrial complex. Exposing this complex—which is rooted in profit, lobbying, and playing on the emotions of workers' parents and families, as well as the public—Crandell challenges readers to reexamine how we treat some of our most vulnerable fellow citizens. Twenty-Two Cents an Hour forces the reader to face the reality of this exploitation, and builds the framework needed for reform.

Part I

1

THE STAGE IS SET FOR BROKEN PROMISES

In 2009 a story about men with intellectual disabilities working on an Iowa turkey farm laid bare to the general public something that professionals, families, and federal and state officials had long been aware of—and for the most part, complicit in. It would also come to light that the exploitation of the men in Iowa had been going on for thirty years, with a major newspaper story documenting the concerns in the 1970s. The long history of exploiting workers with disabilities stretches back to the early days of industrialization.

For decades the men in Iowa, about thirty in all, had been housed in dilapidated bunkhouses and made to work fourteen-hour days, earning less than a dollar an hour.1 Gutting, butchering, and performing artificial insemination were all part of the daily work routine. Some of the men tried to escape—and many did—only to be rounded up again by the owners of Henry’s Turkey Farm and trucked back to the grim lives they endured. “Verbal abuses included frequently referring to the workers as retarded, dumbass and stupid. The workers reported acts of physical abuse including hitting, kicking, at least one case of handcuffing, and forcing the disabled workers to carry heavy weights as punishment.”2 The supervisors at Henry’s Turkey Farm, also the workers’ purported caretakers, casually ignored injuries or pain. As the details unfolded, and the investigation picked up steam, it became clear that the owners of the turkey farm were operating as the men’s payee, receiving social security checks in exchange for substandard housing, and paying the men subminimum wages. It was legal to pay the men far less than the federal minimum wage under a law ironically titled the Fair Labor Standards Act of 1938, which included policies that allowed for workers with disabilities to be paid significantly lower wages, an exception under a certificate from the US Department of Labor known as 14(c). The men had little choice in how they spent their days, when they worked, and for how long. All the men had various types of intellectual disabilities, a new term that has overtaken the derisive “mental retardation.” At the beginning of the twentieth century, people were clinically categorized as “idiots,” “morons,” and “savants.” Language—and the terms and phrases used inside the systems that purport to benevolently care for people—is an insidious tool used to justify subminimum wages; it also serves to keep the status quo in place. The practices and systems that often violate a person’s civil rights are the focus of this book, and we will pay special attention to the systematic application of terms within the disability industrial complex, especially how workers with disabilities are subjected to arbitrary measures of productivity that are used to keep expectations low and lifelong dependence on human-service systems high.

Without the Fair Labor Standards Act of 1938, the men who were beaten, made fun of, and often harassed unmercifully would never have been at Henry’s Turkey Farm in the first place; they were there because of a strong financial incentive for the owners to exploit the men. Labor costs are the single most expensive part of operating a turkey farm; when the owners can pay as much as eight times less than the going rate for labor profitability is a certainty. At the same time the owners can benefit from the perception that they are “helping the disabled.” Along with the status of being the employees’ SSI payee, these owners were raking in hundreds of thousands of dollars without scrutiny, even though they should have been reviewed by the Department of Labor. The Equal Employment Opportunity Commission took on the case after a sister of one of the men filed a formal complaint regarding her brother’s paltry pay. The wage claims for each of the thirty-two workers ranged from $28,000 to $45,000 in lost income over the course of just their last two years before Henry’s Turkey Farm was shut down in February 2009. The employees should have been compensated at the average wage of $11–12 per hour, reflecting the rate of pay typically earned by workers without intellectual disabilities who performed the same or similar work.3

The trial brought by the EEOC was painful and embarrassing for the men, many of whom had been forced to stay on the turkey farm for decades. The descriptions of cruelty and abuse sounded much like indentured servitude. Bureaucrats took the stand and testified to having suspected the abuses and neglect; they insisted they had had a hard time getting anyone in state government to listen to their suspicions because the public believed the owners of the farm were doing a great public service by caring for the men. In the meantime, behind the closed doors of the bunkhouses, and under the secrecy of the paddocks, warehouses, offices and acres of Henry’s Turkey Farm, the horrors were numerous.

The men sometimes went into town for some rest and relaxation, eating at restaurants or catching a matinee, and the citizens viewed them as sweet and hardworking. The town had accepted the facade too, but there were cracks. Sometimes there were unexplained bruises, black eyes, a more pronounced limp. Still, it took nearly three decades for someone to blow the whistle. The state systems that oversee programs in the community are bureaucracies, often understaffed, isolated, fragmented, and operating in a manner unconnected to or unaware of the civil-rights legislation they are supposed to understand and implement. In gauging how well state and local programs are run, I sometimes simply mention the laws and court decisions of recent years. From CEOs to board members of nonprofits delivering disability employment services, I’m astounded how little the major players know about the regulatory guidance that pertains to the industry they work in. The 1999 Supreme Court decision in Olmstead v. LC was the most important civil-rights decision for people with disabilities in our country’s history. In Olmstead, the Supreme Court held that people with disabilities have a qualified right to receive state-funded supports and services in the community rather than in institutions. Yet too few people in power inside the disability industrial complex are even aware that the decision exists. The ubiquitous ADA and the Workforce Innovation and Opportunity Act of 2014, which is supposed to restrict the use of subminimum wages, are also foreign to many who work in the field of disability and employment.

A federal judge in Iowa ordered the company to pay damages totaling $240 million (the largest verdict in the EEOC’s history) for disability discrimination and severe abuse to the thirty-two men he referred to as “mentally disabled employees” who had gutted turkeys at the West Liberty processing plant for $65 a month—41 cents an hour—for more than twenty years.4 US District Judge Harold Vietor issued the partial summary judgment against Hill Country Farms, d/b/a Henry’s Turkey Service, and owner Kenneth Henry in the Davenport District Court. Vietor found that Henry’s, whose corporate operations were based in Goldthwaite, Texas, had willfully violated federal minimum wage and overtime laws and was liable for unpaid wages and liquidated damages. In other words, it was still legal to pay subminimum wages to workers with disabilities, but Mr. Henry and his henchmen didn’t have the records to prove that their employees could be deemed less productive than “normal workers.” If they had, the underpayment of wages referenced in the lawsuit likely could have been dismissed. The case brought attention to how some workers with disabilities were paid in the United States, but Judge Vietor did not have the authority to make it illegal to pay workers with disabilities pennies on the hour; that would require legislation and, in the end, a comprehensive civil-rights battle that would take twists and turns to ultimately determine the fate of hundreds of thousands of workers with disabilities.

For professionals like Cary Griffin, the horrible story had a silver lining. “We believed it was the death knell of paying subminimum wages. Here was a decades-long abuse of a legal public law and it was clear to everyone we were finally going to get legislation that would overturn 14(c).” Griffin, along with countless other dedicated reformists, had been trying to change the disability employment system in the United States, a complex configuration of funding that includes Medicaid, Social Security, vocational rehabilitation, and state dollars, all of which are primarily used to segregate and keep workers with disabilities in prevocational day programs or sheltered workshops. It would be a surprise, though, just who would fight the most adamantly against reform.

While the courts dealt with Kenneth Henry, the Iowa men and their estranged families tried to recover and begin anew. There was indeed momentum in the debate around the ethical and moral considerations of allowing some of America’s most vulnerable citizens to be paid so horribly. On June 7, 2012, the National Federation of the Blind (NFB), one of the oldest and largest organizations of Americans with disabilities, took an assertive and well-versed lead in calling for a boycott of Goodwill Industries International, Inc., the nonprofit provider of employment services for people with disabilities and retailer, for its payment of subminimum wages to many of its workers with disabilities. It was a bold move, building upon the wage abuses of the men exploited at Henry’s Turkey Farm, which had been profiled in a report by the National Disability Rights Network in 2011. With strategic planning and a penchant for muckraking, the NFB went to work, hoping that timing, social media, and an outraged public would help fuel the reform.

Freedom of information requests filed by the NFB confirmed that some Goodwill Industries employees had been paid as little as twenty-two cents an hour. The NFB and more than forty-five other organizations supported legislation, the Fair Wages for Workers with Disabilities Act, H.R. 3086, which would have phased out and then fully repealed the eighty-year-old provision of the Fair Labor Standards Act that permits special 14(c) certificate holders to pay subminimum wages to workers with disabilities. There was hope, and the path forward to a substantial civil-rights win seemed well lit, even as the other side mounted its plans to lobby, counter the cries of reform, and stop any legislation from becoming law.

Dr. Marc Maurer, president of the National Federation of the Blind, took the opportunity to be unflinchingly assertive on the issue:

Goodwill Industries is one of the most well-known and lucrative charitable organizations in the United States, yet it chooses to pay its workers with disabilities less than the federal minimum wage. While this practice is currently legal and many entities engage in it, many other nonprofit organizations have successfully transitioned to paying their employees the minimum wage or higher. That Goodwill Industries exploits many of its workers in this way is ironic because its president and chief executive officer is blind. Goodwill cannot credibly argue that workers with disabilities are incapable of doing productive work while paying its blind CEO over half a million dollars a year. Goodwill should be ashamed of such blatant hypocrisy. We are calling upon all Americans to refuse to do business with Goodwill Industries, to refuse to make donations to the subminimum-wage exploiter, and to refuse to shop in its retail stores until it exercises true leadership and sound moral judgment by fairly compensating its workers with disabilities.5

Dr. Maurer and the NFB were passionate about using Goodwill as the touchstone in the debate. The cultural timing was right as young people formed the Occupy movement and focused a great deal of their attention on the plight of minimum-wage earners, casting the slogan: “We ARE the 99%.” The progressive initiative was related to a global reaction to the deep economic recession triggered by the subprime mortgage crisis. By organizing a movement focused on how some of the least paid US workers were faring after the banking collapse, Occupy protesters and associated supporters were open to the plight of any worker. Dr. Maurer understood that these forces could be harnessed to tell another story of a forgotten and neglected workforce.

Dr. Maurer kept the intensity at high throttle, sensing that the attention and climate were conducive to bring about the change needed to merge what had been largely a disability-rights issue with the larger cultural workplace-rights movements spreading throughout the country. He asked one of his staffers, Anil Lewis, then director of strategic communications, to spearhead a campaign to raise awareness about subminimum wages—and ultimately to find a way to get legislation passed that would eliminate the 14(c) provision. Rose Sloan, one of the NFB’s government affairs specialists, had a knack for interviewing people. Ms. Sloan, a microphone in one hand and her cane in the other, approached workers picketing at Johns Hopkins Hospital for raises above the $11 an hour they were receiving. Making her way through the picket lines and the ancillary crowds, tapping her cane on the cement and approaching clusters of people, Ms. Sloan asked them if they knew some workers were paid so little.6 Worker after worker at Johns Hopkins expressed disbelief that simply having a disability could mean being subjected to subminimum wages. Goodwill sites in several states were boycotted with a succinct flyer that read, “Do you know Goodwill pays some of its workers as little as 22 cents per hour?” The proponents of maintaining subminimum wages for workers with disabilities soon despised Dr. Maurer and the NFB, claiming they were “just trying to stir this up all over again.” In Part III of this book, we will take a closer look at the Goodwill boycott, an act of rebellion that ushered in increased scrutiny by the US Department of Labor’s (USDOL) Wage and Hour division, the entity charged with overseeing organizations that hold 14(c) certificates.

Since the 1960s there had been numerous attempts to overturn the provisions of 14(c) that allowed for subminimum wages, but those advocating for systems change and the civil rights of workers with disabilities were thwarted at almost every turn. More harm was actually created with amendments to the 14(c) law in 1986, when the absurdly referenced “minimum subminimum” wage floor was removed and workers with disabilities could be paid as little as a few cents an hour. Prior to the 1986 amendments, workers under 14(c) were to be paid at least half the minimum wage, but now that rule had been successfully lobbied against. It became common for working adults with disabilities to bring home checks as miniscule as a few dollars a week for forty hours. This was one of the many ongoing bait-and-switch moves initiated by the professional lobbyists inside the disability industrial complex. In the words of one of the reformers in Georgia, the battle rages on: “I was awestruck when I first understood that organizations that were supposed to be helping people with disabilities had actually lobbied against the very legislation that would have prevented people with disabilities being paid subminimum wages,” says Nancy Brooks-Lane, who in the early 2000s led the movement to shutter sheltered workshops in metro Atlanta. She was met with hostility by staff, legislative representatives, and families. “It was as if we were the ones advocating to pay people pennies per hour. That move in ’86 to remove the subminimum wage floor set back the civil rights of workers with disabilities by decades. It’s still impacting us today. Low expectations have crept into every facet of disability services, from the capacity of a person to learn, to the way families view provider organizations. It’s truly a system predicated upon keeping people segregated in buildings so more billing can be amassed. Of course, there are some excellent agencies doing great work, but many aren’t even trying.”7

Both sides saw the developments of 2011, in the aftermath of the exposure of Henry’s Turkey Farm, as part of the same push and pull that had occurred over the last forty or more years. Still, the reformers believed they had momentum. Oregon was spending $30 million a year on funding sheltered workshops within the state. By the start of 2012, a young woman named Sparkle Green, living in Beaverton, Oregon, signed onto a class-action lawsuit, claiming that the state had ignored her desires to leave the sheltered workshop and its subminimum pay for a job she knew she could get and keep in the community if she were provided the support she needed. Sparkle and her coplaintiffs asserted they were being denied their civil rights under the Americans with Disabilities Act (ADA) and the Rehabilitation Acts. Sparkle was being paid an average of just thirty-nine cents an hour though she had nearly perfect attendance and followed all the rules and instructions in the sheltered workshop. The other named plaintiffs were Angela Kehler, 48, who had been forced to remain in sheltered workshops since she was laid off from a successful job at a drugstore; Elizabeth Harrah, 32, who previously worked at McDonald’s and Safeway and was now at a sheltered workshop while waiting for assistance to return to competitive employment; and Zavier Kinville, 27, who was also at a sheltered workshop, awaiting an opportunity for integrated community employment. Kinville had volunteered in the community, where his favorite job was reading to children. These were not the snapshots of people too disabled to work; because these workers could legally be paid subminimum wages, the easiest thing to provide was just that. Along the way, the sheltered workshops that kept Green, Kehler, Harrah, Kinville, and thousands of others segregated and paid pennies on the dollar could bill for other services too—a common situation inside provider agencies, specifically those that serve people with intellectual and developmental disabilities in sheltered workshops. Perhaps a person doesn’t like folding and packaging and begins to slow down, get up from the workstations or simply stop altogether, a scenario most of us could imagine ourselves doing if a job didn’t hold our attention, especially if we were paid subminimum wages. This reaction sets in motion a professional verdict on productivity: Workers with disabilities doing these repetitive jobs, most often not by choice, are then labeled with new problems to fix, such as “poor attention,” “off task behavior,” or “work avoidance.” These new diagnoses are then inserted into the worker’s record, and a new set of interventions to ameliorate these issues is defined and billed for by the human-service agency. The providers of these services are thus incentivized to identify more and more problems. A bureaucrat at a state Medicaid agency told me, “It’s a billing scheme that’s been accepted as the norm. Show a person with Down syndrome to a state legislator and talk about how ‘these people’ need more funding. It’s a surefire way to fill the nonprofit agency coffers. There’s supposed to be rehabilitation, progress, a lessening of paid supports, but it’s actually the complete opposite.”

The class-action lawsuit in Oregon and another just beginning in 2013 in Rhode Island gave advocates even more hope that finally a bill would be introduced overturning the ability of United States Department of Labor to issue 14(c) certificates and outlawing subminimum wages for good. The awareness campaign was working, and before long the journalist Harry Smith went behind the scenes at a Montana Goodwill to investigate. The story ran on NBC’s Rock Center on June 21, 2013, five months after the Fair Wages for Workers with Disabilities Act had been introduced.

Harold and Sheila Leigland, both blind, reported that they had to undergo a “stopwatch test” to check their productivity every six months; inevitably t...

Table of contents

• Preface
• Acknowledgments
• Part I
• Part II
• Part III
• Notes
• Index