[nfbmi-talk] petition from Anil Lewis

Mon Apr 15 21:18:28 UTC 2013

National Federation of the Blind of Michigan
20812 Ann Arbor Trail
Dearborn Heights, MI 48127

April 15, 2013

Dear Michigan Federationists:

     I am including some news and a link to a petition from Anil Lewis
concerning our Fair Wages Legislation.

Sincerely,
Larry Posont
President
National Federation of the Blind of Michigan
(313) 271-3058
Email: president.nfb.mi at gmail.com
Web page: www.nfbmi.org
Federationists:

There are now 30 co-sponsors of the Fair Wages for Workers with
Disabilities Act of 2013 (HR 831).  We welcome Rep Perlmutter [CO-7],
Rep Brady [PA-1], Rep Takano [CA-41], Rep Fortenberry [NE-1], Rep
DeGette [CO-1], Rep Cummings [MD-7], and Rep Horsford [NV-4] as newly
added champions.

Have you signed the online petition calling for the repeal of Section
14(c) of the Fair labor Standards Act?  Have you encouraged others to
sign?  Visit http://www.nfb.org/fair-wages-petition
www.nfb.org/fair-wages-petition%20%20<http://www.nfb.org/fair-wages-petition%20%20www.nfb.org/fair-wages-petition>

We must keep getting the word out.  Take the time to read and share
the following blog post on the Commensurate Wage Fallacy.

The Commensurate Wage Fallacy
https://nfb.org/blog/vonb-blog/commensurate-wage-fallacy
Submitted by alewis on Mon, 04/15/2013 - 09:36
Blog Date:
Monday, April 15, 2013
By Anil Lewis

Under Section 14(c) of the Fair Labor Standards Act, a flawed formula
has been used for years to calculate the commensurate "piece rate"
wage for workers with disabilities.  This formula, based on average
wages and survey data, works mathematically, but fails the common
sense test.  My twelve-year-old stepson asked me the following
question from his math homework: If Johnny can run one mile in two
minutes, how fast can Johnny run two miles?  He knew that the expected
answer was four minutes.  However, he also had the common sense to
know that Johnny would get tired, and it would take Johnny more time
to run each consecutive mile.  I told him to put four minutes as the
answer.  He got an "A" on the homework, but he did not understand why
he got an "A" for the wrong answer.  I validated his common sense and
applauded the fact that at twelve years old, he understood the root of
the commensurate wage fallacy.  The commensurate "subminimum" wage
formula used by over three thousand employers to determine how much
they should pay their workers with disabilities is based on the same
flawed logic as the math problem.

Before we get to the real commensurate wage fallacy, we must discuss
how the prevailing wage is determined.  A subminimum wage employer
must conduct an annual wage survey of private sector jobs in the
employer's geographic area that are similar to the jobs being
performed by the workers with disabilities.  Then the employer takes
the average of at least three of these industry wage rates to
determine the hourly prevailing wage for the job.  For example, if
three private sector employees are being paid $8.25, $8.30, and $8.35
respectively, the average wage rate of $8.30 would be the prevailing
wage used in the commensurate wage formula.

The math is correct, but common sense tells you that the subminimum
wage employer gets to shop around to determine which industry wage
rates to use, so if there is a private sector employee being paid
$9.00 for a similar job, there is no requirement for the employer to
use this higher wage in the calculation.  It is more likely that there
are no similar jobs in the community, in which case the employer
should use the federal minimum wage of $7.25 (or the higher state
minimum wage, if one applies) as the prevailing wage.  Some subminimum
wage employers illegally use less than this amount; and with little to
no oversight, this exploitation goes unaddressed for years.

The most convoluted and manipulative step used to determine the
commensurate wage is for the employer to conduct a time study.  The
employer chooses an experienced nondisabled worker to perform the job
for twenty minutes.  Ideally, this is done for at least three cycles
by the same person or three different people.  This provides three
productivity rates that are then averaged to determine the average
"piece rate."  Therefore, if thirty-eight items are produced in the
first cycle, forty items are produced in the second, and forty-two
items are produced in the third, the benchmark would be set for the
workers with disabilities to produce forty items in twenty minutes, or
two items per minute.  This means the expectation is for the workers
with disabilities to produce 120 items per hour in order to be paid
the $8.30 prevailing wage.

Again, the math is sound, but common sense tells you that the employer
can conduct many more time studies and choose the results to
manipulate the commensurate wage outcome, ignoring those time studies
in which less than thirty-eight items are produced.  Essentially, the
employer can conduct as many time studies as necessary to justify the
wage that the employer would like to pay for the job.

Common sense also tells you that it is unfair to set a productivity
benchmark for an entire work day using only a twenty-minute time
study.  Think of it as another version of my stepson's math problem:
if Johnny can produce 120 items in an hour, how many can he produce in
two hours?  My twelve-year-old stepson knew the answer.  He realized
that Johnny would get tired, and his productivity would decrease over
time.

The commensurate wage professionals state that they take all of this
into consideration by providing a 15 percent time allowance for
Personal time, Fatigue, and Delay (the PF&D factor).  This is
calculated to be nine minutes per hour, which many employers round to
ten minutes per hour.  Therefore, the productivity expectation set for
the workers with disabilities under the earlier scenario would be for
them to produce one hundred items per hour in order to earn $8.30.
This is more commonly stated to be a piece rate, where the workers
with disabilities are paid eighty-three cents for each item they
produce.

Although the PF&D allowance may bring the productivity expectation in
line with the worker's reasonable ability to produce over time, this
cannot be considered an adequate adjustment for personal time,
fatigue, and delay inclusively.  Most subminimum wage employers do not
encourage the PF&D allowance to be used for breaks.  Although most
employers are required to provide nondisabled employees a ten-minute
paid rest period for every four hours worked, the sheltered subminimum
wage workshops are excluded from this requirement.  In fact, the
ability to work without a break is presented by the subminimum wage
employer as a benefit to the workers with disabilities, who are
encouraged to work as much as possible in order to earn as much as
possible.  This type of pressure produces stress; the stress results
in mistakes; and mistakes result in defective products that the
workers do not get paid for producing.

Delay is also out of the control of the worker.  The workers cannot
produce anything if the employer is delayed in providing them
materials to produce the item, and unlike the nondisabled workers that
get paid an hourly rate, the workers with disabilities do not get paid
when they are not producing products.  The legal requirement to pay
for down time is at the discretion of the employer, and if an employer
does not provide production supplies in a timely manner, the workers
with disabilities can be left idle for much more than ten minutes
without the supplies to produce anything, thus earning nothing.

The unspoken math is that there are currently over three hundred
thousand people with disabilities being paid wages below the federal
minimum. Specifically, 50 percent of these workers receive less than
half the federal minimum wage, and 25 percent receive less than one
dollar per hour, some as low as three cents per hour.  The common
sense truth is that most of these individuals are already productive
enough to earn the federal minimum wage; they are just victims of the
flawed wage formula.  Others could be productive enough to earn the
federal minimum wage if provided the proper training and support, but
will never receive either the training or support while segregated in
a subminimum wage work environment.  Those individuals being paid less
than one dollar per hour are truly not ready for work, but the
subminimum wage employers assert that these workers are being afforded
an opportunity to experience the tangible and intangible benefits of
work.  The workers with disabilities get the extremely intangible
benefit of subminimum wages.  The executives get the true tangible
benefit from the public and private dollars meant to support the
workers with disabilities, but used instead to support the six-figure
salaries of the executives.  The subminimum wage employers are
essentially getting an "A" for the wrong answer.

The fallacy here is that the workers with disabilities are supposedly
being paid based on their productivity.  If the employers truly
believe that the commensurate wage model is adequate and fair for
workers with disabilities, why not use the commensurate wage formula
to calculate the wages for all of the sheltered workshop employees,
including the executives?  My twelve-year-old stepson would know the
answer to this question as well.

Visit www.nfb.org/fair-wages<http://www.nfb.org/fair-wages> to get
more information, and add your name to our online
petition<https://nfb.org/civicrm/petition/sign?sid=1&reset=1> to help
us stop the perpetuation of the commensurate wage fallacy.

Mr. Anil Lewis, M.P.A.
Director of Advocacy and Policy

"Eliminating Subminimum Wages for People with Disabilities"
http://www.nfb.org/fairwages
NATIONAL FEDERATION OF THE BLIND
200 East Wells Street at Jernigan Place
Baltimore, Maryland   21230
(410) 659-9314 ext. 2374 (Voice)
(410) 685-5653 (FAX)
Email: alewis at nfb.org
Web: www.nfb.org
twitter: @anillife