Employment Law Guide

Wages and Hours Worked: Workers with Disabilities for the Work Being Performed

Fair Labor Standards Act of 1938 (FLSA), as amended (PDF)(https://www.dol.gov/whd/regs/statutes/FairLaborStandAct.pdf)
(29 USC §201 et seq.(http://www4.law.cornell.edu/uscode/29/201.html); 29 CFR Parts 525(/elaws/leave-dol.asp?exiturl=http://www.ecfr.gov/cgi-bin/retrieveECFR^Q^gp=1|h=L|r=PART|n=29y3.1.1.1.17&exitTitle=www.ecfr.gov&fedpage=yes))

Who is Covered

The Fair Labor Standards Act (FLSA) is administered and enforced by the Wage and Hour Division (WHD). The Act establishes minimum wage, overtime pay, recordkeeping, and youth employment standards generally affecting full-time and part-time workers in the private sector and in Federal, state, and local governments. Section 14(c) of the FLSA authorizes employers, after receiving a certificate from the Wage and Hour Division, to pay subminimum wages - wages less than the Federal minimum wage - to workers who have disabilities for the work being performed. The certificate also allows the payment of wages that are less than the applicable prevailing wage to workers who have disabilities for the work being performed on contracts subject to the McNamara-O'Hara Service Contract Act (SCA) and the Walsh-Healey Public Contracts Act (PCA). Payment of wages under a Section 14(c) certificate may be subject to the requirements of Executive Order 13658, which establishes a minimum wage for work performed on or in connection with certain covered government contracts.

Basic Provisions/Requirements

Employers must obtain an authorizing certificate from the Wage and Hour Division prior to paying subminimum wages to employees who have disabilities for the work being performed. To apply for a certificate, employers must submit a properly completed application (Form WH-226), Application for Authority to Employ Workers with Disabilities at Special Minimum Wages), as well as Form WH-226A, Supplemental Data Sheet for Application for Authority to Employ Workers with Disabilities at Special Minimum Wages and the required supporting documentation, to:

United States Department of Labor
Wage and Hour Division
230 South Dearborn Street, Room 530
Chicago, Illinois, 60604-1757
1-312-596-7195

Certificates covering employees of work centers and patient workers normally remain in effect for two years. Certificates covering workers with disabilities placed in competitive employment situations or School Work Experience Programs (SWEPs) are issued annually.

Commensurate wage rates. Subminimum wages issued pursuant to Section 14(c) of the FLSA must be commensurate wage rates - based on the worker's individual productivity in proportion to the wage and productivity of experienced workers who do not have disabilities performing essentially the same type, quality, and quantity of work in the geographic area from which the labor force of the community is drawn. The key elements in determining commensurate rates are:

• Determining the standard for workers who do not have disabilities - the objective gauge against which the productivity of the worker with a disability is measured
• Determining the prevailing wage - the wage paid to experienced workers who do not have disabilities for the same or similar work and who are performing such work in the area. Most SCA contracts include a wage determination specifying the prevailing wage rates to be paid for work on the SCA contract
• Evaluating the quantity and quality of the productivity of the worker with the disability

All commensurate wage rates must be reviewed and adjusted, if appropriate, at periodic intervals. At a minimum, the productivity of hourly paid workers must be reevaluated every six months and a new prevailing wage survey must be conducted at least every twelve months.

Employee Rights

Any employee paid a subminimum wage (or his or her parent or guardian) may petition the Secretary of Labor, under FLSA Section 14(c)(5), to have the commensurate wage rate reviewed to determine if the wage is justified. The review will be conducted by a U.S. Department of Labor Administrative Law Judge. Such petitions are completely independent of any enforcement action that may be undertaken by the Wage and Hour Division. Although the petition does not have to follow a particular format or form, it must be signed by the individual (or his or her parent or guardian) and should contain the name and address of the individual filing the petition and the name and address of his or her employer

The Wage and Hour Division's role in the petition process is solely to serve as a conduit—the means through which the petition is forwarded to the Office of the Chief Administrative Law Judge. The Wage and Hour Division does not serve as a party in this matter. It does not represent either the employee with a disability or his or her employer. In all matters relating to the propriety of a commensurate wage rate, the burden of proof rests with the employer. See 29 CFR Part 525.22 for more information.

Recordkeeping, Reporting, Notices and Posters

Notices and Posters

Notices. Each worker with a disability receiving a subminimum wage under FLSA Section 14(c), and, where appropriate, the parent or guardian of such worker, shall be informed orally and in writing by the employer of the terms of the certificate under which such worker is employed. In addition, employers of workers with disabilities receiving subminimum wages must display the Wage and Hour Division poster, Employee Rights for Workers with Disabilities Paid at Special Minimum Wages (WH Publication 1284). This poster explains the conditions under which subminimum wages may be paid. The poster must be posted in a conspicuous place on the employer's premises where employees and the parents and guardians of workers with disabilities can readily see it.

Additionally, each worker with a disability and, where appropriate, a parent or guardian of the worker, must be informed, orally and in writing, of the terms of the certificate under which the worker is employed. This requirement may be satisfied by making copies of the certificate available.

Posters.  Every employer of employees subject to the FLSA's minimum wage provisions must post, and keep posted, a notice(https://www.dol.gov/whd/regs/compliance/posters/flsa.htm) explaining the Act in a conspicuous place in all of their establishments. Although there is no size requirement for the poster, employees must be able to readily read it. The FLSA poster is also available in Spanish(https://www.dol.gov/whd/regs/compliance/posters/flsaspan.htm), Chinese(https://www.dol.gov/whd/regs/compliance/posters/minwagecn.pdf), Russian(https://www.dol.gov/whd/regs/compliance/posters/FLSAPosterRuss.pdf), Thai,(https://www.dol.gov/whd/regs/compliance/posters/MinWageThai.pdf) Hmong,(https://www.dol.gov/whd/regs/compliance/posters/MinWageHmong.pdf) Vietnamese(https://www.dol.gov/whd/regs/compliance/posters/minwageViet.pdf), and Korean(https://www.dol.gov/whd/regs/compliance/posters/minwageKorean.pdf).  There is no requirement to post the poster in languages other than English(https://www.dol.gov/whd/regs/compliance/posters/flsa.htm).

Certain industries have posters designed specifically for them.  Employers of Agricultural Employees (PDF)(https://www.dol.gov/whd/regs/compliance/posters/wh1386Agrcltr.pdf) and State & Local Government Employees (PDF)(https://www.dol.gov/whd/regs/compliance/posters/wh1385State.pdf) can either post the general Fair Labor Standards Act poster(https://www.dol.gov/whd/regs/compliance/posters/flsa.htm) or their specific industry poster.  There are also posters for American Samoa (PDF)(https://www.dol.gov/whd/minwage/americanSamoa/ASminwagePoster.pdf) and the Commonwealth Northern Mariana Islands (PDF)(https://www.dol.gov/whd/regs/compliance/posters/cnmi.pdf).

As discussed above, under FLSA Section 14(c), employers of workers with disabilities who are paid subminimum wages are also required to post the "Employee Rights for Workers with Disabilities Paid at Special Minimum Wages" poster

Recordkeeping

In addition to the recordkeeping requirements imposed on all employers subject to the FLSA, those paying subminimum wages to workers with disabilities under Section 14(c) must also maintain records regarding the disabilities of the workers, prevailing wage surveys, work measurements, and individual productivity. See the following for the general FLSA recordkeeping requirements.

Every employer covered by the FLSA must keep certain records. Employers must keep records on wages, hours, and other information as set forth in the Department of Labor's regulations. Most of this data is the type that employers generally maintain in ordinary business practice.

There is no required form for the records. However, the records must include accurate information about the employee and data about the hours worked and the wages earned. The following is a listing of the basic payroll records that an employer must maintain:

• Employee's full name, as used for Social Security purposes, and on the same record, the employee's identifying symbol or number if such is used in place of name on any time, work, or payroll records
• Address, including zip code
• Birth date, if younger than 19
• Sex and occupation
• Time and day of week when employee's workweek begins.
• Hours worked each day and total hours worked each workweek
• Basis on which employee's wages are paid (e.g., "$9 per hour", "$440 a week", "piecework")
• Regular hourly pay rate
• Total daily or weekly straight-time earnings
• Total overtime earnings for the workweek
• All additions to or deductions from the employee's wages
• Total wages paid each pay period
• Date of payment and the pay period covered by the payment

For a full listing of the basic records that an employer must maintain, see the Wage and Hour Division Fact Sheet #21: Recordkeeping Requirements Under the FLSA(https://www.dol.gov/whd/regs/compliance/whdfs21.pdf). Employers are required to preserve for at least three years payroll records, collective bargaining agreements, and sales and purchase records. Records on which wage computations are based should be retained for two years. These include time cards and piecework tickets, wage rate tables, work and time schedules, and records of additions to or deductions from wages.

Reporting

The FLSA does not contain any specific reporting requirements; however, the above referenced records must be open for inspection by the Wage and Hour Division's representatives, who may ask the employer to make extensions, computations, or transcriptions. The records may be kept at the place of employment or in a central records office.

Penalties/Sanctions

Section 14(c) certificates can be retroactively revoked if it is found that false statements were made or facts were misrepresented in obtaining the certificate or if it is found that any of the provisions of the FLSA, SCA, or the terms of the certificate have been violated.

The Department of Labor uses a variety of remedies to enforce compliance with the Act's requirements. When Wage and Hour Division investigators encounter violations, they recommend changes in employment practices to bring the employer into compliance, and they request the payment of any back wages due to employees.

The Department of Labor may also bring suit for back pay and it may obtain injunctions to restrain persons from violating the Act.

The Act also prohibits the shipment of goods in interstate commerce that were produced in violation of the minimum wage, overtime pay, child labor, or subminimum wage provisions of the FLSA.

Relation to State, Local, and Other Federal Laws

The issuance of a certificate under the provisions of FLSA Section 14(c) for payment of subminimum wages does not excuse noncompliance with any other Federal or state law or municipal ordinance establishing higher minimum wage standards.

Compliance Assistance Available

The Department of Labor provides employers, workers, and others with clear and easy-to-access information and assistance on how to comply with the Fair Labor Standards Act. Among the many resources available are:

• The Handy Reference Guide to the FLSA(https://www.dol.gov/whd/regs/compliance/hrg.htm)
• Fair Labor Standards Act (FLSA) Section 14(c) Advisor(/elaws/whd/flsa/14c/): Helps employers, employees and their family members understand FLSA Section 14(c), which authorizes employers, after receiving a certificate from the Department of Labor, to pay less than the Federal minimum wage to workers who have disabilities for the work being performed.
• Fair Labor Standards Act (FLSA) Coverage and Employment Status Advisor(/elaws/whd/flsa/scope/screen9.asp): Helps employers and employees understand and determine coverage under the FLSA.
• FLSA Recordkeeping Fact Sheet(https://www.dol.gov/whd/regs/compliance/whdfs21.pdf): Explains recordkeeping requirements under the Act.

DOL Contacts

Wage and Hour Division(https://www.dol.gov/whd/)
Contact WHD(https://webapps.dol.gov/contactwhd/Default.aspx)
Tel: 1-866-4-US-WAGE (1-866-487-9243)*
*If you are deaf, hard of hearing, or have a speech disability, please dial 7-1-1 to access telecommunications relay services.

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