Senate Bill 639 (SB 639) State Minimum Wage Bill

August 10, 2021

Lorena Gonzalez

Chair, Committee on Appropriations

Assembly Appropriations Committee

State Capitol, Room 2114

Sacramento, CA 95814

Via email: approps.committee@assembly.ca.gov

Dear Assembly Member Gonzalez:

Human Rights Watch is pleased to support Senate Bill 639 (SB 639), a bill that would overturn the discriminatory practice of paying workers with disabilities in California less than the state minimum wage. 

As one of the world’s leading independent organizations dedicated to protecting human rights, Human Rights Watch seeks to protect the human rights of all people, including people with disabilities. We document human rights violations in more than 100 countries around the world including the United States.[1] We oppose current laws that allow employers to pay subminimum wages to employees with disabilities because it is inconsistent with international human rights law. It also undermines nondiscrimination protections under the US Americans with Disabilities Act.

Currently, under section 14(c) of the federal Fair Labor Standards Act (FLSA), the California Labor Commission is authorized to issue certificates to employers allowing them to pay employees with disabilities less than the state minimum wage. This is based on the discriminatory assumption that wages should be downwardly adjusted for employees whose disabilities make them unable to work in typical work settings because they are not as productive as their peers without disabilities.[2]

This practice discriminates against people with disabilities by stripping them, on the explicit basis of their disability, of employment protections that other workers have. Such protections are necessary to ensure workers can earn a living wage and have an adequate standard of living, as provided for under international human rights standards.[3]

This discrimination is also inconsistent with Article 27 of the Convention on the Rights of Persons with Disabilities (CRPD), which requires governments to “Prohibit discrimination on the basis of disability with regard to all matters concerning all forms of employment…” and “protect the rights of persons with disabilities, on an equal basis with others, to just and favourable conditions of work, including equal opportunities and equal remuneration for work of equal value.”[4]

SB 639 would signal a commitment to the equal labor rights for workers with disabilities, including by ensuring workers with disabilities earn at least the minimum wage.

The practice of permitting employers to pay workers with disabilities less than the minimum wage also risks enabling breaches of the Americans with Disabilities Act of 1990 (ADA), which protects employees with disabilities from discrimination in employment. Section 12112(a) of the ADA states that:

No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.[5]

One example is the 2012 case Equal Employment Opportunity Commission v. Hill Country Farms, Inc., in which the US District Court for the Southern District of Iowa ruled under the ADA that Hill Country Farms, Inc., an employer who had for several years obtained a certificate under FLSA Section 214(c), had discriminated against 32 workers with intellectual disabilities, who “were performing productively and effectively as non-disabled workers,” yet were paid far less than other workers, substantially below the minimum wage.[6] The Equal Employment Opportunity Commission (EEOC) continued litigation following the verdict and secured back pay for the employees who suffered discrimination.[7]  

Although this success demonstrates the use of litigation as a means of recourse, not all workers with disabilities have easy access to the legal system. This issue of access is of particular significance as workers with disabilities who have been given much less than the living wage may experience greater difficulties in securing representation and may experience financial hardship.

Although section 14(c) of the FLSA’s original intent was to promote employment for people with disabilities, organizations of persons with disabilities, including Disability Rights California, as well as the fact-finding federal agency, the US Commission on Civil Rights, report that the legislation has adversely impacted workers with disabilities by leading to practices including paying workers with disabilities less than the state minimum wage; segregating them into separate working centers; and denying protections that are available to workers who do earn at least the minimum wage, such as by prohibiting workers with disabilities from unionizing.[8]

We support SB 639 because we believe that it will end a harmful and discriminatory practice in California against people with disabilities and further align California legislation with protections guaranteed under the ADA and the CRPD. We urge you to vote in favor of SB 639.

Sincerely,

Jane Buchanan

Deputy Director

Disability Rights Division

Human Rights Watch