[NFBOK-Talk] Fwd: [Brl-monitor] The Braille Monitor, March 2016
Audrey Farnum
atfarnum at icloud.com
Tue Mar 1 21:04:32 UTC 2016
Audrey T. Farnum
Sent from my iPhone
Begin forwarded message:
> From: buhrow at lothlorien.nfbcal.org (Brian Buhrow)
> Date: March 1, 2016 at 2:01:48 PM CST
> To: brl-monitor at nfbcal.org
> Subject: [Brl-monitor] The Braille Monitor, March 2016
> Reply-To: buhrow at nfbcal.org
>
>
> BRAILLE MONITOR
> Vol. 59, No. 3 March 2016
> Gary Wunder, Editor
>
>
> Distributed by email, in inkprint, in Braille, and on USB flash
> drive, with the audio version being available in both Spanish and English
> (see reverse side) by the
>
> NATIONAL FEDERATION OF THE BLIND
>
> Mark Riccobono, President
>
> telephone: (410) 659-9314
> email address: nfb at nfb.org
> website address: http://www.nfb.org
> NFBnet.org: http://www.nfbnet.org
> NFB-NEWSLINE® information: (866) 504-7300
> Like us on Facebook: Facebook.com/nationalfederationoftheblind
> Follow us on Twitter: @NFB_Voice
> Watch and share our videos: YouTube.com/NationsBlind
>
>
> Letters to the President, address changes, subscription requests, and
> orders for NFB literature should be sent to the national office. Articles
> for the Monitor and letters to the editor may also be sent to the national
> office or may be emailed to gwunder at nfb.org.
>
>
> Monitor subscriptions cost the Federation about forty dollars per year.
> Members are invited, and nonmembers are requested, to cover the
> subscription cost. Donations should be made payable to National Federation
> of the Blind and sent to:
>
> National Federation of the Blind
> 200 East Wells Street at Jernigan Place
> Baltimore, Maryland 21230-4998
>
> THE NATIONAL FEDERATION OF THE BLIND KNOWS THAT BLINDNESS IS NOT THE
> CHARACTERISTIC THAT DEFINES YOU OR YOUR FUTURE. EVERY DAY WE RAISE THE
> EXPECTATIONS OF BLIND PEOPLE, BECAUSE LOW EXPECTATIONS CREATE OBSTACLES
> BETWEEN BLIND PEOPLE AND OUR DREAMS. YOU CAN LIVE THE LIFE YOU WANT;
> BLINDNESS IS NOT WHAT HOLDS YOU BACK. THE NATIONAL FEDERATION OF THE BLIND
> IS NOT AN ORGANIZATION SPEAKING FOR THE BLIND-IT IS THE BLIND SPEAKING FOR
> OURSELVES.
> ISSN 0006-8829
> © 2016 by the National Federation of the Blind
> Each issue is recorded on a thumb drive (also called a memory stick
> or USB flash drive). You can read this audio edition using a computer or a
> National Library Service digital player. The NLS machine has two slots-the
> familiar book-cartridge slot just above the retractable carrying handle and
> a second slot located on the right side near the headphone jack. This
> smaller slot is used to play thumb drives. Remove the protective rubber pad
> covering this slot and insert the thumb drive. It will insert only in one
> position. If you encounter resistance, flip the drive over and try again.
> (Note: If the cartridge slot is not empty when you insert the thumb drive,
> the digital player will ignore the thumb drive.) Once the thumb drive is
> inserted, the player buttons will function as usual for reading digital
> materials. If you remove the thumb drive to use the player for cartridges,
> when you insert it again, reading should resume at the point you stopped.
> You can transfer the recording of each issue from the thumb drive to
> your computer or preserve it on the thumb drive. However, because thumb
> drives can be used hundreds of times, we would appreciate their return in
> order to stretch our funding. Please use the return envelope enclosed with
> the drive when you return the device.
>
> [PHOTO CAPTION: Palm-lined drive leading to front entrance to Rosen Shingle
> Creek Resort]
>
> Orlando Site of 2016 NFB Convention
>
> The 2016 convention of the National Federation of the Blind will take
> place in Orlando, Florida, June 30 to July 5, at the Rosen Shingle Creek
> Resort, 9939 Universal Boulevard, Orlando, Florida 32819-9357. Make your
> room reservation as soon as possible with the Shingle Creek staff only.
> Call (866) 996-6338.
> The 2016 room rates are singles and doubles, $83; and for triples and
> quads $89. In addition to the room rates there will be a tax, which at
> present is 13.5 percent. No charge will be made for children under
> seventeen in the room with parents as long as no extra bed is requested.
> The hotel is accepting reservations now. A $95-per-room deposit is required
> to make a reservation. Fifty percent of the deposit will be refunded if
> notice is given to the hotel of a reservation cancellation before May 27,
> 2016. The other 50 percent is not refundable.
> Rooms will be available on a first-come, first-served basis.
> Reservations may be made before May 27, 2016, assuming that rooms are still
> available. After that time the hotel will not hold our room block for the
> convention. In other words, you should get your reservation in soon.
> All Rosen Shingle Creek guestrooms feature amenities that include
> plush Creek Sleeper beds, 40" flat screen TVs, complimentary high-speed
> internet capabilities, in-room safes, coffee makers, mini-fridges, and hair
> dryers. Guests can also enjoy a swimming pool, fitness center, and on-site
> spa. The Rosen Shingle Creek Resort has a number of dining options,
> including two award-winning restaurants, and twenty-four-hour-a-day room
> service.
> The schedule for the 2016 convention is:
> Thursday, June 30 Seminar Day
> Friday, July 1 Registration Day
> Saturday, July 2 Board Meeting and Division Day
> Sunday, July 3 Opening Session
> Monday, July 4 Business Session
> Tuesday, July 5 Banquet Day and Adjournment
>
>
>
> 2016 NFB National Convention Preregistration Form
>
>
> Please register online at www.nfb.org/preregistration or complete all
> requested information on this form. Print and mail form to the address
> below.
>
> Registrant Name:
> Address:
> City:
> State: ________________________________________________ Zip:
> _________________
> Phone:
> Email:
>
> I will pick up my registration packet at convention.
>
> The following person will pick up my registration packet:
>
> Pickup Name:
>
> Please register only one person per registration form.
> One check or money order may cover multiple registrations.
> Check or money order (sorry, no credit cards) must be enclosed with
> registration form(s).
>
> Number of preregistrations x $25 = _________
> Banquet tickets x $60 = __________
>
> Total ___
>
> All convention preregistration and banquet sales are final (no refunds).
>
> Mail to: National Federation of the Blind
> Attn: Convention Preregistration
> 200 E. Wells Street at Jernigan Place
> Baltimore, MD 21230
> Registrations must be postmarked by May 31, 2016.
>
> Vol. 59, No. 3 March
> 2016
>
> Contents
>
>
> Illustration: New Accessible ATM Installed at Jernigan Institute
>
> The 2016 Washington Seminar in Review
> by Deja Powell
>
> Legislative Agenda of Blind Americans for the 114th Congress, Second
> Session
>
> Transitioning to Integrated and Meaningful Employment Act (H.R. 188) (S.
> 2001)
>
> Accessible Instructional Materials in Higher Education (AIM HE) Act
>
> Equal Access to Air Travel for Service-Disabled Veterans (H.R. 2264)
>
> The Marrakesh Treaty to Facilitate Access to Published Works for Persons
> Who Are Blind, Visually Impaired, or Otherwise Print Disabled ("Marrakesh
> Treaty")
>
> Moving the Challenge Indoors
> by Anil Lewis
>
> Dissecting the Value of Diversity
> by Justin Salisbury
>
> The Kenneth Jernigan Convention Scholarship Fund
> by Allen Harris
>
> Court Renders Major Decision on the Practice of Paying Subminimum Wages to
> Disabled Workers
>
> Recipes
>
> Monitor Miniatures
>
>
>
> [PHOTO CAPTION: (Left to right) Mark Riccobono stands with Marc Maurer and
> Randy Rice of Cardtronics as Dr. Maurer prepares to cut the ribbon on the
> new Cardtronics accessible ATM.]
> [PHOTO CAPTION: Mark Riccobono receives his cash as he makes the first
> withdrawal from the new ATM.]
>
> New Accessible ATM Installed at Jernigan Institute
>
> Since the introduction of the automated teller machine (ATM), the
> blind of the nation have been fighting for access to the cash and other
> services these devices provide. At first we were told there was no product
> for the banks to buy, and they blamed the manufacturers. We were then told
> by the manufacturers that there was no demand and that we must go to the
> banks. Next, we were told that the cost of modifying the hundreds of
> thousands of machines would be prohibitive and that requiring every ATM to
> be accessible was an unreasonable demand. When our lawsuits and
> negotiations got the industry and the government to take notice, we then
> had to suffer the jokes about those crazy people who wanted to put Braille
> on drive-up ATMs. Slowly, however, we began to reach settlements with
> banks, and while many ATMs are owned by major banking institutions, many
> are privately owned. Such is the case with Cardtronics, a company which
> owns and operates more than 53,000 ATMs across the country.
> As reported in the August-September 2015 issue of the Braille
> Monitor, the National Federation of the Blind reached an amicable
> settlement with Cardtronics, and one of the promises made by the company
> was the installation of an ATM at our national headquarters in Baltimore.
> That machine was installed, and on January 22, 2016, it was officially
> unveiled and is now available to everyone who works at or visits the
> Jernigan Institute.
>
> [PHOTO CAPTION: Deja Powell]
> The 2016 Washington Seminar in Review
> by Deja Powell
>
> From the Editor: Normally it falls to the editor to write about our
> mid-year convention of the National Federation of the Blind, AKA the
> Washington Seminar. This year I had a volunteer, and I really appreciate
> her work and her most valuable contribution.
> Deja is a winner of a scholarship in 2002 and a tenBroek winner in
> 2014. Here is what she writes about our work to let lawmakers hear from the
> blind:
>
> Utah is known for its snow; the mountains surrounding Salt Lake City
> are usually covered in the powdery white stuff by January. At this time
> people begin flocking to the state for some of the best skiing,
> snowboarding, and snowshoeing in the world. As the snow begins to pile atop
> the Utahan Mountains, I know it's time to gear up for the National
> Federation of the Blind's annual Washington Seminar. The NFB Washington
> Seminar is where a few hundred of the most ambitious and feisty blind
> people in the country gather on Capitol Hill to make things happen.
> [PHOTO CAPTION: The piles of snow from the plows are almost as tall as the
> cars parked in front of the Jernigan Institute in Baltimore, graphic proof
> of the travel difficulties faced by this year's attendees at the Washington
> Seminar.]
> This year, however, would be like no other in the organization's
> history: days before the annual meeting, the news started shifting its
> attention to Jonas (not Kevin, Joe or Nick, the Jonas Brothers), but winter
> storm Jonas, which was headed directly for the Washington DC/Baltimore
> area. Meteorologists were predicting one of the largest snowstorms in the
> history of our nation's capital was going to hit the week of the NFB
> Washington Seminar. Many of us hoped that the news was wrong-that Jonas
> wasn't going to be all he was cracked up to be. As the time came to pack
> and fly, most of us realized Jonas was not all talk. The storm dumped not
> inches, but feet of snow on the Washington DC/Baltimore area, and quickly.
> Flights across the country were delayed, then cancelled, then delayed and
> cancelled again. Airports were shut down on Friday and Saturday, and all
> city transportation suspended. Many of our fellow Federationists were
> finding it difficult if not impossible to make their way to DC. The word
> impossible, however, doesn't really resonate with Federationists, so many
> fought to get there and do the work that had to be done.
> [PHOTO CAPTION: Federationists didn't let a few feet of snow daunt them, as
> the crowd at the Great Gathering-In shows.]
> With major airports shutting down, activities that would normally
> have taken place on Saturday, Sunday, and Monday were significantly
> altered. One event was a seminar to train state affiliate legislative
> coordinators. Here is how Parnell Diggs, our director of government
> affairs, described the event and the on-the-fly changes made to make it
> work:
>
> Prior to Washington Seminar, a legislative workshop is held for
> representatives from each state affiliate to learn more about the
> legislative agenda of the National Federation of the Blind. This year,
> the workshop was scheduled for January 23, 24, and 25. Due to the
> impending storm, President Riccobono suggested inviting workshop
> participants to arrive early in order to beat the blizzard. This
> strategy proved effective, as more than twenty of our directors made
> it to the Jernigan Institute before travel became treacherous. For
> those who did arrive early, the workshop was filled with energy and
> enthusiasm. President Riccobono welcomed participants at a special
> meeting at 4:00 p.m. on Friday. Since the group arrived twenty-four
> hours early, members decided to begin the workshop on Saturday morning
> rather than waiting until the originally scheduled start time of 6:00
> p.m. Joining us on that Saturday morning were not only our fearless
> travelers, but legislative directors forced to remain at home until
> they could fly into DC. They joined us thanks to the hastily-arranged
> conference call put together by our team. For those present the
> blizzard conditions did nothing to curtail the service and consumption
> of meals, cookies, and coffee during the weekend. Nothing could match
> the energy of the logistics team, which masterfully managed the
> logistics with precision, grace, and unflagging goodwill.
> We lost electric power during the afternoon session on Saturday,
> but Federationists continued working as if nothing was out of the
> ordinary. The Harbor Room fireplace had been stocked in case heat was
> needed, but thankfully the power was restored before dinner.
> On Monday morning the chartered bus arrived to transport
> Federationists to Washington, DC, but it could not get closer than a
> quarter of a mile to the Jernigan Institute. Thus, Federationists
> walked through the snow to reach the bus. Four adults and one child
> from Hawaii received the admiration of the entire assembly, since
> their "winter clothes" were not designed for walking through piles of
> shoveled snow that were four feet high in some places.
> As we so often remind our friends and even our opponents, we are
> a Federation family. Attitudes remained positive throughout the
> weekend, and while two dozen Federationists were literally snowed-in
> at the Jernigan Institute, the 2016 legislative priorities were
> thoroughly discussed, and everyone had a blast.
>
> After the government announced they would be closed on Monday, with
> several appointments cancelled for the remainder of the week,
> discouragement could have set in, but it didn't. Some members of the
> Federation, myself included, took advantage of the rare opportunity to go
> sledding down Capitol Hill. After climbing through mini-mountains of snow
> on street corners and finally getting to the Capitol, I found an awesome
> teenage girl who let me borrow her plastic sled to take a quick trip down
> the Hill. With a big grin on my face, I began climbing the very icy and
> slick Hill. I barely avoided falling a few times in the process, but I
> finally made it to the top. I asked a nice guy up there to line me up so I
> would not run over any children on my way down. Once aligned, he gave me a
> pretty big push, and I was on my way. Halfway down I spun-out, came to a
> stop, and pushed myself the rest of the way down. It was a great,
> empowering moment for me-a reminder that I can live the life I want, even
> if it requires borrowing a sled or two along the way.
> But now it was time to get to work. Prior to the Great Gathering-In
> meeting, the student division took care of business. Despite the weather,
> nothing could stop the National Association of Blind Students (NABS) from
> getting together and having a good time. Nearly fifty students made it to
> DC for the NABS annual Washington Seminar meeting, twenty-five of whom were
> sponsored by the NFB and would not have been able to attend without the
> organization's financial support. The annual student meeting included
> information on the new Self-Advocacy in High Education Toolkit Version 1.0,
> which serves as a support to blind college students in an effort to prevent
> or mitigate accessibility barriers on campus. You can find more information
> about the toolkit at <https://nfb.org/self-advocacy-higher-education>. The
> meeting also included a speech from President Mark Riccobono, who
> encouraged students to step up and take on more leadership roles. Student
> Division President Sean Whalen also spoke to those in attendance about
> happenings at the national level and the KNFB Reader App. The student
> meeting included several breakout sessions covering a variety of topics
> including employment, internships, self-advocacy, vocational rehabilitation
> services, and more. On Tuesday evening the student division hosted the NABS
> Café, an annual social event for students and supporters, which included an
> auction, raffle, and live entertainment. Despite the weather, the
> attendance matched that of previous Washington Seminar student meetings.
> For the first time in history, the annual Great Gathering-In meeting
> was held on Tuesday morning, with a smaller but powerful group of
> Federationists ready to learn, act, and change the laws of the land.
> President Mark Riccobono welcomed everyone and thanked all for making such
> an enormous effort to attend. He specifically welcomed two-year-old Eliana
> from Hawaii, who is blind and attending her first-ever Washington Seminar.
> He suggested, "If anybody asks you why you bothered to trudge through the
> snow to get here, you tell them about Eliana; it's her future we're working
> for." In his welcome speech, President Riccobono talked about a variety of
> legal cases affecting the lives of blind parents, children, and adults,
> addressing employment barriers blind people face, such as not receiving
> equal wages, inaccessible technology for the blind, lack of internet
> regulations, lack of accessibility in transportation (including Uber), and
> the need for accessibility in voting rights. He ended by saying, "We do all
> this work and more because it is personal to us, and we are here because it
> matters in our own lives and in the lives of others." He continued, "We are
> here because for seventy-five years we have set the standard, and we
> continue to raise expectations for blind people across the country. We are
> here because we seek to live the lives we want!"
> Jernigan Institute Executive Director Anil Lewis also spoke to the
> crowd about the various programs going on at the Jernigan Institute,
> including STEM2U, NFB EQ <http://www.blindscience.org/NFBEQ>, NFB Bell
> Academy <https://nfb.org/bell-academy>, and other academic-focused
> programs. Anil declared, "It's not our inability to see that defines our
> future; it's the poor education systems that don't challenge us, that don't
> set high expectations for us to meet...Blind people have the intellect,
> knowledge, ability, talent, interest, desire, and passion to be involved in
> STEM subjects."
> Fred Schroeder followed by announcing that the United States will be
> hosting the World Blind Union this summer in Orlando, Florida, and
> encouraged Federationists to attend. President Riccobono also announced
> that this year's NFB National Convention will be held in Orlando, Florida,
> Thursday, June 30 through Tuesday, July 5, at the Rosen Shingle Creek
> Resort and that pre-registration will open on March 1.
> Immediate past president Dr. Marc Maurer addressed the Great
> Gathering-In by discussing important legal issues facing the blind and how
> the National Federation of the Blind is working on these, including
> subminimum wage issues, Amazon accessibility, and parental rights.
> Executive Director of Advocacy and Policy, John Paré, welcomed all who
> fought the storm to make it to Washington and announced the use of a new
> App for NFB Washington Seminar, "NFB in DC," designed to set up and track
> appointments. Next, Parnell Diggs, director of government affairs,
> addressed the crowd regarding logistics of the week and welcomed all to DC.
> He encouraged attendees to check with individual senators and
> representatives to be sure appointments were still on as scheduled.
> [PHOTO/CAPTION: Parnell Diggs]
> [PHOTO/CAPTION: Rose Sloan]
> [PHOTO/CAPTION: Gabe Cazares]
> Parnell then introduced his legislative team: Rose Sloan and Gabe
> Cazares. Rose started things off by talking about the first of four issues:
> equal work for equal pay, or the Transitioning to Integrated and Meaningful
> Employment (TIME) Act (H.R. 188; S. 2001). Rose declared, "The blind and
> all people with disabilities deserve an honest wage. We are going to
> educate and advocate; the NFB will get the TIME Act passed." She continued,
> "For far too long the blind have been paid less than the minimum wage, and
> it is time to end this. Section 14(c) of the Fair Labor Standards Act must
> be repealed."
> Rose also discussed the second issue, Equal Access to Air Travel for
> Service-Disabled Veterans (H.R. 2264). The Space Available Program allows
> members of the active military, some family members, Red Cross employees,
> and retired armed services members to travel on military aircraft if space
> is available. However, members of the military who were classified as 100
> percent service disabled before September 23, 1996, do not qualify for this
> program because they are not considered "retired." Rose declared that both
> the TIME Act and the Space Available proposal are in need of co-sponsors.
> Gabe Cazares, the newest member of the government affairs team,
> discussed the two remaining issues. First is the Accessible Instructional
> Materials in Higher Education (AIM HE) Act, which will generate guidelines
> for higher education institutions when implementing new technology to
> ensure it is accessible to blind and print-disabled students. Gabe notes
> that far too often schools deploy inaccessible technology, then modify
> another version for blind students, and tragically this usually occurs
> weeks or even months into class. This has the effect of creating a
> "separate-but-equal" landscape with nearly impenetrable barriers. Gabe went
> on to say, "Blind students will not be relegated to second-class
> citizenship in employment or the classroom. All technology needs to be
> accessible to all students."
> Gabe also talked about the Marrakesh Treaty to Facilitate Access to
> Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise
> Print Disabled. The Marrakesh Treaty is an international copyright treaty
> that will give blind Americans access to millions of published works and
> improve the distribution of books across the globe. Unlike the United
> States, where copyright code includes the Chafee Amendment and other
> exceptions, two-thirds of the world's nations do not have domestic
> copyright laws that permit making copies for the blind, limiting the number
> of works available in an accessible format. Gabe concluded by encouraging
> all of us to get moving to push through all four of our important issues.
> John Paré went through all of the information in the legislative
> packets this year, including fact sheets and letters of support. President
> Riccobono announced the congressional reception would be cancelled due to
> the weather. He also encouraged everyone to attend the NABS Café that
> evening to support the student division of the National Federation of the
> Blind. He then introduced the director of public relations, Chris
> Danielson, who discussed an Op-Ed written by President Riccobono that was
> released that day on the Congress Blog <http://thehill.com/blogs/congress-
> blog/civil-rights/266943-inequality-and-indifference>. The article includes
> information on signing the NFB's We the People Petition
> <https://petitions.whitehouse.gov/petition/direct-us-department-justice-
> promptly-release-ada-internet-regulations>, which needs 100,000 signatures
> by mid-February. Chris encouraged everyone to share the Op-Ed piece and the
> Washington Seminar experience on social media under the hashtag #NFBWS16.
> He ended his remarks by saying: "Washington knows we're here, now let us
> let the world know."
> President Riccobono concluded the meeting with a few last minute
> announcements, encouraging participants to share their experiences on
> social media, noting the demonstration of a new Braille display being
> debuted at the seminar, and telling us that Anil Lewis had eaten all the
> peanut butter pie that was available.
> On Tuesday, Wednesday, and Thursday the nation's blind took over
> Capitol Hill. In fact, we were pretty much the only ones brave enough to go
> to the Congress that week. Many affiliates met with Congress and House
> staffers, and a few got to meet face-to-face with their representatives and
> senators. Despite the weather, lots of progress was made on some of the big
> issues, and Federationist fought hard to share the concerns our elected
> officials can address that truly effect the blind.
> As a dancer I have grown to love the quotation by Vivian Greene,
> "Life isn't about waiting for the storm to pass...It's about learning to
> dance in the rain." It was a lot more than rain in Washington, DC, for this
> Washington Seminar, but record-breaking snow accumulation covering our
> nation's capital couldn't stop members of the National Federation of the
> Blind from dancing. Many of my family and friends asked me why I was going
> to Washington, DC, when the weather was so bad and Congress wouldn't even
> be in session; some went so far as to say I was being ridiculous for going.
> My response: "What we're going to Washington for will outlast the storm.
> The issues we are fighting for will be there long after the snow melts. The
> blind of our country have been told far too many times that we can't, that
> we won't, that we shouldn't, but we are not ready to back down...no matter
> the barriers. Snowzilla can't stop us!" And, you know, it didn't.
> ----------
> Legislative Agenda of Blind Americans
> Priorities for the 114th Congress, Second Session
>
> . The Transitioning to Integrated and Meaningful Employment Act (H.R.
> 188, S. 2001)
>
> Section 14(c) of the Fair Labor Standards Act allows employers to pay
> workers with disabilities subminimum wage because of the false assumption
> that they are less productive than nondisabled workers. This antiquated
> provision breeds low expectations and discourages disabled Americans from
> reaching their full vocational potential. H.R. 188 and S.2001 will
> responsibly phase out the use of Section 14(c) Special Wage Certificates,
> ending the era of segregated, subminimum wage work.
>
>
> . The Accessible Instructional Materials in Higher Education (AIM HE)
> Act
>
> Electronic instructional materials have replaced traditional methods
> of learning in postsecondary education, but the overwhelming majority of
> ebooks, courseware, web content, and other technologies are inaccessible to
> students with print disabilities. The law requires equal access in the
> classroom but fails to provide direction to schools for the way it applies
> to technology. AIM HE creates voluntary accessibility guidelines for
> educational technology to improve blind students' access to course
> material, stimulate the market, and reduce litigation for schools.
>
>
> . Equal Access to Air Travel for Service-Disabled Veterans (H.R. 2264)
>
> The Space Available Program allows active-duty military, Red Cross
> employees, and retired members of the armed services to travel on military
> aircraft if space is available. H.R. 2264 reverses the exclusion of 100
> percent service-disabled veterans who were discharged before September 23,
> 1996, and entitles them to the program's privileges even though they were
> never classified as "retired."
>
>
> . The Marrakesh Treaty to Facilitate Access to Published Works for
> Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled
>
> Despite the ability to convert print books into accessible formats
> like Braille, large print, audio, and digital copies, millions of blind and
> otherwise print-disabled Americans are excluded from accessing 95 percent
> of published works. The Marrakesh Treaty calls for contracting parties to
> provide in their national copyright laws for a limitation or exception that
> allows for the reproduction, distribution, and cross-border exchange of
> accessible works.
> ----------
> Transitioning to Integrated and Meaningful Employment Act (H.R. 188) (S.
> 2001)
>
> Current labor laws unjustly prohibit workers with disabilities from
> reaching
> their full vocational and socioeconomic potential.
>
> Antiquated public policy encourages workers with disabilities to rely
> on government assistance such as Supplemental Security Income (SSI) and
> Medicaid. Section 14(c) of the Fair Labor Standards Act, passed in 1938,
> authorizes the Secretary of Labor to issue Special Wage Certificates to
> certain entities, permitting them to pay workers with disabilities
> subminimum wages. Ninety-five percent of 14(c)-certificate-holding entities
> are nonprofit "sheltered workshops" (segregated work environments)1 that
> pay over 300,000 workers with disabilities as little as pennies per hour,
> leading many of those workers to seek government assistance.
> Current training and employment strategies assist those with even the
> most significant disabilities to obtain integrated and meaningful
> employment. Workers in sheltered workshops often perform mundane tasks that
> do not use their existing skills, interests, and talents. However,
> innovative strategies such as customized and supported employment, when
> paired with appropriate rehabilitative services, training, tools, and
> expectations allow employees with disabilities to be as productive as their
> nondisabled coworkers.2
> A growing number of former 14(c)-certificate-holding entities have
> transitioned their business models into effective disability training
> programs. No entities in Vermont or New Hampshire use 14(c) certificates.
> Seminars such as the Vermont Conversion Institute highlight entities that
> have successfully phased out reliance on Section 14(c) certificates. This
> transition not only benefits employees with disabilities but the overall
> productivity of the organizations that employ them.3 Research shows that
> sheltered workshops cost more to society than alternatives. Moreover,
> consumers who were not exposed to the low expectations of sheltered,
> subminimum-wage environments earn more money than peers who were in those
> environments.4
> Policy and public and private sentiment are moving into a new era of
> proven competitive, integrated employment for people with disabilities. In
> August 2012 the National Council on Disability unanimously recommended that
> the Department of Labor immediately stop issuing new Special Wage
> Certificates and that the "Section 14(c) program be phased out."5 In
> September 2015 a committee tasked by Congress to increase competitive
> integrated employment opportunities for workers with disabilities
> recommended the phase-out of Section 14(c).6 In addition, over eighty
> disability organizations support the repeal of Section 14(c) of the Fair
> Labor Standards Act.7
>
> The Transitioning to Integrated and Meaningful Employment Act:
>
> Discontinues the issuance of new Special Wage Certificates. The
> Secretary of Labor will no longer issue Special Wage Certificates to new
> applicants.
> Phases out the use of Special Wage Certificates over three years.
> Three years after the enactment of this Act, no 14(c)-certificate-holding
> entity will pay workers with disabilities subminimum wages, allowing them
> to transition to the proven model of competitive, integrated employment for
> all of their employees with disabilities.
> Repeals Section 14(c) of the Fair Labor Standards Act. Three years
> after the law is enacted, the practice of paying workers with disabilities
> subminimum wages will be officially abolished. This will result in the
> development of integrated and meaningful employment opportunities that
> encourage people with disabilities to reach their full vocational and
> socioeconomic potential.
>
> To cosponsor H.R. 188 in the House of Representatives, contact:
> Scot Malvaney, policy director, Office of Congressman Gregg Harper (R-
> MS)
> Phone: (202) 225-5031, Email: <Scot.Malvaney at mail.house.gov>
>
> To cosponsor S.2001 in the Senate, contact:
> Dan Auger, Legislative Assistant, Office of Senator Kelly Ayotte (R-
> NH)
> Phone: (202) 224-3324, Email: <Daniel_Auger at Ayotte.senate.gov>
>
> For more information, contact:
> Rose Sloan, Government Affairs Specialist, National Federation of the
> Blind
> Phone: (410) 659-9314, Extension 2441, Email: <rsloan at nfb.org>
>
> For more information visit: <www.nfb.org/TIME>
>
> __________________________________________________
> 1United States Department of Labor. "Wage and Hour Division (WHD) Community
> Rehabilitation Programs (CRPs) List." Last modified October 1, 2015.
> http://www.dol.gov/whd/specialemployment/CRPlist.htm.
>
> 2United States Department of Labor. "Customized Employment Works
> Everywhere." Last modified October 2009.
> https://www.hdi.uky.edu/setp/materials/vignette_v3_blue_508_FINAL.pdf.
>
> 3Szlyk, Janet. "Letter of Support Issued by the Chicago Lighthouse." Last
> modified September 30, 2011.
> <http://nfb.org/Images/nfb/documents/word/Chicago_Lighthouse_Support_letter.
> doc>.
>
> 4Cimera, Robert E.; Wehman, Paul; West, Michael; & Burgess, Sloane. "Do
> Sheltered Workshops Enhance Employment Outcomes for Adults with Autism
> Spectrum Disorder?" Autism. 16 (2012): 87.
>
> 5National Council on Disability. "National Council on Disability Report of
> Subminimum Wages and Supported Employment." Last modified August 23, 2012.
> <https://www.ncd.gov/publications/2012/August232012>.
>
> 6Advisory Committee on Increasing Competitive Integrated Employment for
> Individuals with Disabilities. "Interim Report." Last modified September
> 15, 2015. <http://www.dol.gov/odep/pdf/20150808.pdf>.
>
> 7National Federation of the Blind. "The following groups support the repeal
> of Section 14(c) of the Fair Labor Standards Act." Last modified February
> 12, 2015. <https://nfb.org/groups-supporting-repeal-section-14c-fair-labor-
> standards-act>.
> ----------
> Accessible Instructional Materials in Higher Education (AIM HE) Act
>
> Until colleges and universities drive the demand for accessible
> instructional materials, blind college students will be denied access to
> critical course content.
>
> Technology has fundamentally changed the education system. The scope
> of instructional materials used at institutions of higher education has
> expanded. Curricular content comes in digital books, PDFs, webpages, etc.,
> and most of this content is delivered through digital databases, learning
> management systems, and applications. The print world is inherently
> inaccessible to students with disabilities, but technology offers the
> opportunity to expand the circle of participation. Studies have found that,
> of the six million plus students with print disabilities in the system, the
> number who go on to pursue postsecondary education is growing.
> Blind students are facing insurmountable barriers to education.
> Instead of fulfilling the promise of equal access, technology has created
> more problems than the print world ever did. Data show that students with
> disabilities face a variety of challenges, including matriculation failure,
> solely because colleges and universities are sticking with the ad-hoc
> accommodations model instead of embracing accessibility. Schools deploy
> inaccessible technology and then modify another version for blind students,
> usually weeks or even months into class, creating a "separate-but-equal"
> landscape with nearly impenetrable barriers. With only a 20 percent
> employment rate, blind students should not be denied access by the
> innovations that could have ensured full participation.
> Institutions of higher education need help to identify accessible
> material and comply with nondiscrimination laws. Section 504 of the
> Rehabilitation Act and Titles II and III of the Americans with Disabilities
> Act require schools to provide equal access, and in 2010, the US
> Departments of Justice and Education clarified that the use of inaccessible
> technology is prohibited under these laws. In the five years since, over a
> dozen institutions have faced legal action for using inaccessible
> technology, and complaints are on the rise. Most litigation ends with a
> commitment from the school to embrace accessibility, but that commitment
> does little in a vast, uncoordinated higher education market that mostly
> forgets about blind students.
> Accessibility solutions are available, but guidelines are sorely
> needed to guide the market. Equal access requirements have no criteria for
> accessibility that schools can use when selecting technology. Innovations
> in text-to-speech, refreshable Braille, and other accessibility features
> are widely available, but developers and manufacturers will incorporate
> only solutions that are demanded by the market. Accessibility guidelines
> are needed so that schools can streamline demand, stimulate the market, and
> better identify accessible material. If schools seeking to avoid litigation
> embrace this path to compliance, blind students will truly attain equal
> access.
> Accessible Instructional Materials in Higher Education Act:
>
> Develops accessibility guidelines for instructional materials used in
> postsecondary education.
> A purpose-based commission is tasked with developing accessibility
> criteria for instructional materials and the delivery systems/technologies
> used to access those materials. Additionally, the commission is tasked with
> developing an annotated list of existing national and international
> standards so that schools and developers can identify what makes a product
> usable by the blind.
>
> Provides incentive for institutions of higher education to follow the
> guidelines.
> Institutions of higher education that use only technology that
> conforms with the guidelines will be deemed in compliance with the
> provisions of Section 504 of the Rehabilitation Act and Titles II and III
> of the Americans with Disabilities Act that pertain to schools' use of
> technology.
>
> Offers flexibility for schools while reiterating that pre-existing
> obligations still apply.
> Colleges and universities are permitted to use material that does not
> conform to the guidelines as long as equal access laws are still honored.
> Conformity with the AIM HE guidelines is only one path to compliance;
> schools can pursue a different path, but will forfeit the safe harbor legal
> protection.
>
> Remove Barriers to Equality in the Classroom.
> Sponsor the Accessible Instructional Materials in Higher Education Act.
>
> For more information contact:
> Gabe Cazares, government affairs specialist, National Federation of the
> Blind
> Phone: (410) 659-9314, Extension 2206, Email: <gcazares at nfb.org>
>
> For more information visit: <www.nfb.org/aim_he>
> ----------
> Equal Access to Air Travel for Service-Disabled Veterans (H.R. 2264)
>
> The Space Available Program unjustly denies 100 percent service-disabled
> veterans the opportunity to participate.
>
> One hundred percent service-disabled veterans are not entitled to air
> travel privileges to which other members of the military have access. The
> Space Available Program allows members of the active military, some family
> members, Red Cross employees, and retired armed services members to travel
> on military aircraft if space is available. However, members of the
> military who were classified as 100 percent service disabled before
> September 23, 1996, do not qualify for this program because they are not
> considered "retired."
> This exclusion denies 100 percent service-disabled veterans
> discharged before September 23, 1996, a privilege to which they would be
> entitled had they not been disabled during service. Those service members
> who were disabled during active duty and were medically discharged prior to
> September 23, 1996, did not have the chance to stay on active duty, to be
> classified as "medically retired," or to fulfill the twenty years
> requirement to become qualified for this program. These men and women have
> earned the right to space-available travel just as others have because they
> sacrificed so much for our country.
> Military aircraft are already equipped to accommodate passengers with
> disabilities. Retired military personnel, their family members, and Red
> Cross workers with disabilities are already permitted to use the Space
> Available Program, and according to the AMC Space-Available Handbook &
> FAQ's, "Every effort shall be made to transport passengers with
> disabilities who are otherwise eligible to travel." Therefore, permitting
> 100 percent service-disabled veterans the opportunity to ride on military
> aircraft if space is available will not cause any new burden to the
> program.
> The National Defense Authorization Act provides the platform to
> achieve the goal of this bill. In a letter dated November 3, 2015, Bob
> Dole, a decorated World War II veteran and longtime Senate majority leader,
> urged Senator John McCain, Chairman of the US Senate Committee on Armed
> Services, to incorporate this bill into the National Defense Authorization
> Act (NDAA). Indeed, the House of Representatives' version of NDAA for
> fiscal years 2014 and 2015 included the language of H.R. 2264.
>
>
> Equal Access to Air Travel for Service-Disabled Veterans would:
>
> Provide travel privileges to all 100 percent service-disabled
> veterans. This bill amends Title 10 of the United States Code to permit
> veterans who have a service-connected, permanent disability rated as total
> to travel on military aircraft in the same manner and to the same extent as
> retired members of the Armed Forces.
>
> HONOR OUR SERVICE-DISABLED VETERANS: PERMIT THEM TO USE THE SPACE AVAILABLE
> PROGRAM
>
> Cosponsor H.R. 2264.
>
> To cosponsor H.R. 2264 in the House of Representatives, contact:
> Joe Millado, senior policy advisor, Office of Congressman Gus Bilirakis (R-
> FL)
> Phone: (202) 225-5755, Email: <Joe.Millado at mail.house.gov>
>
> For more information, contact:
> Rose Sloan, government affairs specialist, National Federation of the Blind
> Phone: (410) 659-9314, Extension 2441, Email: <rsloan at nfb.org>
>
>
> "Brave soldiers made the same sacrifices as their fellow veterans, and
> their disabilities are a direct result of combat or its aftermath. I
> believe they should be able to participate in the Space Available program."
> - Bob Dole Letter to Senator McCain, November 3, 2015
> ----------
> The Marrakesh Treaty to Facilitate Access to Published Works for Persons
> Who Are Blind, Visually Impaired, or Otherwise Print Disabled ("Marrakesh
> Treaty")
>
> An international copyright treaty will give blind Americans access to
> millions of published works and improve the distribution of books across
> the globe.
>
> Millions of Americans are being denied access to published works.
> Despite the ability to convert print books into accessible formats
> like Braille, audio, and digital copies, over 95 percent of published works
> are unavailable to people with print disabilities. Literacy and equal
> participation in society are critical elements of a fulfilling and
> independent life, but until uniformity is built into the international
> copyright system, blind Americans will be excluded from accessing works. A
> blind student seeking to learn Spanish will likely struggle to find an
> accessible format; a work printed in English may have already been
> converted into an accessible format overseas, but because copies are not
> exchanged across borders, domestic entities might need to make a duplicate
> copy or just might deny access altogether by failing to reproduce the work.
>
> An uncoordinated legal approach prevents the cross-border exchange of
> accessible books.
> Unlike the United States, where copyright code includes the Chafee
> Amendment and other exceptions, two-thirds of the world's nations do not
> have domestic copyright laws that permit making copies for the blind,
> limiting the number of works available in an accessible format. Moreover,
> many countries consider distribution of accessible copies an infringement
> as well, and even amongst nations that permit distribution, limitations
> vary. Instead of exchanging books across borders, works are needlessly
> duplicated, and circulation is significantly limited.
>
> The Marrakesh Treaty was adopted to achieve this goal.
> On June 27, 2013, a diplomatic conference convened by the World
> Intellectual Property Organization, (WIPO) in Morocco adopted the Marrakesh
> Treaty with outspoken support from the US delegation. The treaty, signed by
> the US on October 2, 2013, currently has eighty-two signatories and has
> been ratified by fourteen countries. Because the treaty calls for
> contracting parties to adopt copyright exemptions similar to those found in
> US law, the administration is developing a ratification package that should
> call for only a sleek, narrow set of modifications.
>
> The Marrakesh Treaty has broad stakeholder support. Blind people
> should have full and equal access to all works that enrich lives, further
> education, and share critical information; the treaty balances this
> priority with the interests of rights holders. WIPO's adoption of the
> Marrakesh Treaty was supported by American-based companies, the
> international publishing community, legal experts, and blindness advocates.
> The treaty will have tangible benefits for all involved.
>
> The Marrakesh Treaty calls for contracting parties to provide in
> their national copyright laws for a limitation or exception that allows for
> the:
>
> . Reproduction of works, by an authorized entity, for the purposes of
> converting them into accessible format copies exclusively for
> beneficiary persons.
>
> . Distribution of accessible format copies exclusively to beneficiary
> persons.
>
> . Import of accessible format copies, for the purposes of making them
> available domestically.
>
> . Export of accessible format copies, for the purposes of making them
> available to a beneficiary person in another country.
>
>
> Remove Barriers to Access of Published Works.
> Support ratification of the Marrakesh Treaty.
>
> For more information, contact:
> Gabe Cazares, government affairs specialist, National Federation of the
> Blind
> Phone: (410) 659-9314, Extension 2206, Email: <gcazares at nfb.org>
> ----------
>
>> From the Editor: President Obama reacted to our request and has forwarded
> the Marrakesh Treaty language to the United States Senate for ratification.
>
> [PHOTO CAPTION: Anil Lewis]
> Moving the Challenge Indoors
> by Anil Lewis
>
> From the Editor: One of the most liberating experiences of my life
> occurred after I received a long white cane, received enough instruction to
> use it, and was given a pass to travel off the campus of the Missouri
> School for the Blind by myself. For the first time in my life, outside
> travel did not mean shuffling my shoe along the edge of the sidewalk,
> holding my arm across my body to protect myself against poles and signs,
> and fearing with every step that I would find a drop-off or, God forbid, an
> open manhole. It took some time for me to realize that the cane was not
> only an outdoor tool but was both effective and necessary when traveling in
> many indoor environments.
> As wonderful as a cane and a dog can be, much information still
> exists that we have a hard time getting as blind people. What store are we
> passing in a mall? Where is the closest restroom? Where is a bench I can
> use while my wife spends hours going through the dress shop? If I am in a
> crowded banquet hall and leave my chair to run an errand, how do I find
> that chair without disrupting the festivities by asking a bunch of
> questions? There is much to be explored in all of this indoor technology
> that looms on the horizon, and it is no surprise that the Jernigan
> Institute is playing a leading role in helping to publicize what is
> available, ensuring that developers have a clear vision of what blind
> people need in this area, and coordinating efforts to see that the
> resulting technology is something that blind people really want and need.
> Here is what the executive director of our Jernigan Institute says about
> ongoing efforts to encourage the development of indoor travel technology:
>
> Marc Maurer, the immediate past president of the National Federation
> of the Blind had the audacity to believe in the dream of a blind person
> independently driving an automobile and established the NFB Blind Driver
> Challenge. This groundbreaking initiative of our NFB Jernigan Institute
> challenged universities, technology developers, and other interested
> innovators to build interface technologies that empower blind people to
> drive a car safely and independently. The power of partnering the nonvisual
> expertise of the National Federation of the Blind with the engineering
> talent of Dr. Dennis Hong and his graduate students at Virginia Tech, while
> taking advantage of the innovative navigation capability possessed by the
> engineers at TORC Robotics, culminated in a demonstration of the capacity
> of the blind with our current president, Mark Riccobono, becoming the first
> blind driver on the Daytona International Speedway in January of 2011. We
> continue to engage mainstream automobile manufacturers with the goal of
> ensuring nonvisual access to the vehicle control interfaces that would
> allow blind people to operate them as they introduce more autonomous
> functionality. Because we first dared to dream of a car that the blind can
> drive, we are moving ever closer to transforming our dream of driving into
> reality. Soon, the blind will be able to drive ourselves, our family
> members, and our friends to work, to school, or to the local mall. Now we
> are moving the challenge of developing innovative nonvisual wayfinding
> technology indoors. Our National Federation of the Blind Indoor Navigation
> Challenge initiative actively explores partnerships that foster the
> development of technology that can be used by the blind to access
> information about the indoor environments in which we travel.
> Members of the National Federation of the Blind know that blind
> people effectively use tools and strategies like long white canes, guide
> dogs, mental mapping, echolocation, and problem-solving skills to acquire
> and to make use of environmental information to travel safely and
> independently outdoors and indoors. In fact, the students at our National
> Federation of the Blind adult rehabilitation training centers learn to
> effectively use nonvisual travel skills to move independently and
> confidently throughout most environments without independent access to the
> information available to the sighted. Yet, technology affords us an
> opportunity to enhance our travel experience. Sighted individuals have
> access to an overwhelming amount of information that assists them as they
> find their way from place to place outdoors and indoors through the use of
> maps, kiosks, and signage, which although helpful, are inaccessible to
> blind people. The information related to storefronts, travel gates, retail
> sales, and personal safety, readily available to the sighted, remain
> inaccessible to the blind.
> Technology has already proven helpful in providing additional
> environmental information that helps the sighted and the blind alike to
> move from location to location, as demonstrated by the ever-growing
> accuracy of talking GPS navigation systems. Many blind people benefit from
> an assortment of apps and devices that use these to provide environmental
> information, which assists them to navigate more independently and
> efficiently throughout their neighborhoods, across the country, and around
> the world. The audible instructions, "Move to the far right lane. In 800
> feet, turn right onto St. Paul Street," "Pothole ahead," and "Left lane
> closed," almost makes it seem possible for a blind person to drive today.
> Unfortunately, GPS technology has proven to be ineffective for use within
> enclosed environments because these block the satellite signals and thereby
> makes this technology ineffective indoors.
> Our National Federation of the Blind Indoor Navigation Challenge is a
> research partnership initiative to foster the development of devices or
> systems that the blind can use to obtain more useful information about the
> indoor environments in which we travel, such as schools, airports,
> hospitals, and shopping malls. These devices are not a substitute for the
> acquisition of good travel skills. They are meant to be a complement, an
> additional tool that enhances the travel experience of an independent
> traveler by providing access to environmental information currently
> unavailable nonvisually.
> Through our initiative, we foster a true partnership between blind
> people and nonvisual wayfinding technology experts to spur the development
> of accessible navigation tools that are designed using universal access
> principles. We have engaged the expertise of Mr. Mike May to administer our
> National Federation of the Blind Indoor Navigation Challenge. Mr. May, as
> president and founder of Sendero Group, has had extensive experience with
> outdoor navigation since 1994, and he possesses a broad depth of knowledge
> about a variety of accessible orientation and navigation systems.
> We have engaged over thirty NFB Indoor Navigation Challenge partners,
> representing universities and private businesses, and many have already
> committed to partnering with us toward the development of indoor navigation
> devices or systems that will eventually have commercial applications. They
> are attempting to address the problem in a variety of creative ways that
> take advantage of beacon technologies, remote vision, image recognition,
> crowd sourcing, and existing infrastructure.
> We seek to leverage the expertise and life experience of blind people
> throughout the research, development, and testing of accessible indoor
> navigation systems. By working to provide information, resources, and
> opportunities to all of our NFB Indoor Navigation Challenge participants,
> we hope to create an incubator for indoor navigation research and best
> practices, where natural partnerships and mutually beneficial
> collaborations will be identified and developed. To that end, on November
> 30 through December 1, 2015, we hosted a summit with the following five
> Indoor Navigation Challenge partners:
>
> . Boni, Loud Steps
> . Indoo.rs, LowViz Guide
> . Radius Networks
> . UMass Amherst, PERCEPT
> . Wina
>
> These companies are using innovative approaches to provide nonvisual
> access to environmental information in creative ways that take advantage of
> Near Field Communications (NFC), beacon, and wide-band technologies. During
> our summit, we set up beacon technology throughout the fourth floor of our
> Jernigan Institute, and two of our participants provided real-time
> demonstrations of their nonvisual wayfinding technology. Generally the
> devices were accurate to within ten feet of their reported location. One of
> the companies reports to be using ultra-wideband technology, which is
> accurate to one foot, but more expensive. The accuracy of the other
> solutions is anticipated to continue to improve as the technologies are
> refined.
> During the summit, each participant gave a presentation and answered
> questions about their specific technologies from members of our Access
> Technology staff. Although there were similarities in implementation, each
> technology had a unique approach to providing nonvisual access. Some used
> audio output; others used audio and vibra-tactile output. The amount of
> navigation information made available to the user also varied between
> technologies. Some of the solutions offered walking instructions, others
> provided information about points of interests throughout the indoor
> environment, while some provided both. Our evaluation team assessed each
> solution from the perspective of potential users while taking into
> consideration a variety of travel skills and technological proficiencies.
> We leave it to our partners to decide whether or not they share the advice
> we provided, or to use it to establish a competitive edge. The most
> valuable recommendation we offered was for the developer to provide the
> ability for the user to customize the amount of information provided by the
> system so that it could best meet the needs of the individual user.
> Some of our partners have already begun installing their wayfinding
> solutions in various public spaces, retail establishments, conferences, and
> both commercial and public transportation venues. With the aggressive
> mainstream implementation of varying navigation apps and devices throughout
> a host of venues, our NFB Indoor Navigation Challenge has already begun
> facilitating collaboration among our partners, promoting the development of
> a more seamless solution. Boni offered to let Indoo.rs use their NFB
> beacons. PERCEPT offered to let others take advantage of their software to
> generate audio walking instructions. Sendero may use an SDK [software
> development kit] from Loud Steps in the Seeing Eye GPS app. Radius
> considered working with Boni to provide a nonvisual wayfinding solution for
> the 2016 Consumer Electronic Show (CES). Unfortunately this did not come
> together in time for this year's conference, but perhaps, as a result of
> this collaboration, the 2017 CES will have accessible indoor navigation
> technology available. We will continue to encourage communication with and
> among our existing NFB Indoor Navigation Challenge partners and work to
> recruit additional challenge participants.
> Mr. May, with his years of experience in nonvisual wayfinding
> technology, has been a tremendous asset in our NFB Indoor Navigation
> Challenge initiative. His technological expertise has proven to be
> essential to our progress. We will be bringing greater awareness to our
> project by giving a presentation on the NFB Indoor Navigation Challenge at
> the 2016 CSUN conference in March.
> There are many technical challenges that remain for our partners to
> address, and direct communication between our experts and their project
> engineers will result in the mutually beneficial outcome of effective,
> nonvisually accessible wayfinding technologies.
> As an organization comprised of individuals who would directly benefit
> from the tools developed through this effort, the National Federation of
> the Blind remains committed to ensuring the aggressive marketing,
> mainstream implementation, ongoing innovation, and potential
> commercialization of these technologies. The annual convention of the
> National Federation of the Blind, with over 2,500 blind people in
> attendance, is clearly the ideal venue for testing and demonstrating the
> leading indoor navigation systems. Stay tuned for announcements of our
> national convention plans.
> The National Federation of the Blind Indoor Navigation Challenge is a
> research initiative of the National Federation of the Blind Jernigan
> Institute, the premier research and training institute developed and
> directed by blind people, that applies the collective knowledge and life
> experience of the blind toward the development of innovative solutions to
> the barriers faced by blind people. Interested individuals and potential
> research partners should contact us at <indoornav at nfb.org>.
> [Pullout Quote: National Federation of the Blind Indoor Navigation
> Challenge <www.nfb.org/indoornav>]
> ----------
> [PHOTO CAPTION: Justin Salisbury]
> Dissecting the Value of Diversity
> by Justin Salisbury
>
> From the Editor: Originally from Connecticut, Justin Salisbury has
> traveled around the eastern half of our country in his pursuit of
> education. He has participated in many initiatives for equality and social
> inclusion, both inside and outside the National Federation of the Blind. He
> writes here about some of the concepts he has encountered in this work and
> explores the spaces where minority classifications intersect. Here is what
> he has to say:
>
> I was talking with a longtime friend from our Puerto Rico affiliate
> about our career futures. He wants to be a teacher of the blind, and I told
> him that we would love to have him in Connecticut. When he asked why, I
> told him it was because he was from the island. For those who don't know,
> the state of Connecticut has a very large Puerto Rican population,
> especially in the eastern half of the state. I stopped myself immediately
> and thought about what I had said. The demands of our schedules pulled us
> away from each other before we could carry the conversation further, and I
> wished instantly that they had not. I had made a mistake by telling him
> that we would want him because he was Puerto Rican. His value comes from
> much more than his ethnic background, and I had wrongly communicated to him
> that it was his primary credential to contribute.
> It has become fashionable to try to make organizations as diverse as
> possible. I think it is wonderful for organizations to have this goal, but
> I think careful reflection on the reasoning for the diversity push is
> important. In the organized blind movement we are making strides to become
> more diverse and have more diverse populations represented in our
> membership and leadership. I have discussed diversity themes with many
> great minds, some of whom are Federationists, and I am writing to share
> what I have learned.
> I often hear people in many organizations, including ones that have
> nothing to do with blindness, emphasize the desire to have leadership and
> membership from multicultural backgrounds. This includes race, ethnicity,
> religion, gender, sexual orientation, disability, and the like. There is
> value to this goal, but there are potential pitfalls in the description and
> implementation thereof.
> I am a blind person, and I am also Canadian First Nations, which we
> often call "Native American" here in the United States. I don't have every
> kind of minority status, but I do have two that are relatively uncommon. A
> lot of people ask me to show up at things to represent one community or the
> other. Whether or not people realize it, this communicates to me that my
> value is generated by simply being blind or simply being First Nations. It
> comes from something that I am rather than something that I do. It comes
> from something I did not earn instead of something that I earned. The
> process of maintaining this value is simple: stay alive. The capacity to
> decrease this value is nullified; no level of laziness can take it away. Is
> increasing my value possible? It must be, but so much focus on that
> unearned value tends to lead people to take harbor within it. Society does
> it to us, and we often do it to each other. Just as we don't mean it or
> maybe don't realize it, we can give the benefit of the doubt to the rest of
> society that their intentions were not malicious. Dr. tenBroek taught us
> that we must ensure that our road to Hell is not paved with other people's
> good intentions. Here, if we are not careful, we can pave a similar road
> for some of our members, thus affecting all of our members.
> When I was in my doctoral program at the University of Wisconsin-
> Madison, I planned to focus publicly on only two things: academics and the
> National Federation of the Blind. That lasted until I was spotted by other
> Native American students, and I was recruited into Wunk Sheek, the broad
> Native American organization on campus. At our meetings we would often hear
> that some event or club reached out to us, asking us to come represent the
> Native American community. Our value at those events and activities was
> inherent to our race and not to ways that we could present or actively
> contribute. It was important for us to extend our coordinated support only
> when it helped us grow. As the National Federation of the Blind's Executive
> Director Mark Riccobono, who is now our President, taught me at a
> leadership event in Wisconsin, it is important to focus specifically on
> doing the things that build our railroad. I was proud to be able to
> contribute that wisdom to Wunk Sheek because of what a Federation leader
> had taught me. If Wunk Sheek were to go out for everything, our purpose
> would become that of condiments for everyone else's burgers, and we would
> not be taught to be contributors beyond providing our diversity itself.
> What some organizations used to call "underserved populations,"
> increasingly more organizations today call "underrepresented populations."
> I like this shift in our society and am not surprised that we see this
> valuable transition in rhetoric led by universities. I attended the
> University of Wisconsin on a fellowship for underrepresented ethnic
> minority students in the College of Agriculture and Life Sciences; this
> program has been used as a model for many others. It was always
> communicated to us that we were expected to step up and be leaders in our
> fields, and many of us did. I personally am much more likely to join an
> organization that tells me that I have something to contribute than one
> that tells me that I need to be served by their greatness. "Underserved"
> identifies the population as one primarily to be served rather than
> represented. In Jim Omvig's book, Freedom for the Blind, we learn that one
> of the most important characteristics of achieving first-class status is
> giving back. It follows that, if a population is viewed primarily as a
> recipient of the services of another, that population does not have first-
> class status. If we are systematically viewing subgroups of our movement as
> second-class within our movement, we are marginalizing that population much
> the way that the blind are marginalized in the general public. If this is
> the case, we are not capitalizing on the full potential of those
> populations to contribute to our movement. It may be easy to misunderstand
> me here; I am not saying that democratically-elected leaders from
> privileged social strata cannot adequately represent members from
> traditionally marginalized social strata. The National Federation of the
> Blind represents all blind people; this is true. It is also true that
> diverse backgrounds and sets of experiences in the leadership of our
> movement equip those leaders who intend to use them to connect and work
> with individuals with similarly diverse backgrounds and sets of
> experiences. I expect that many of us would agree that the true cross
> section of society that blindness affects is not yet perfectly represented
> in our membership.
> We all know what it is to be the token blind person. We know when
> someone is inviting us to participate in something solely to draw the
> appearance that the program or activity in question is inclusive to blind
> people or people with disabilities. We know that our value in those
> situations is largely perceived to derive from the fact that we are
> embellishing the status of those who are really participating with the
> credit of charitably including someone with our disability. When the
> reporters want to take our picture with the elected official or keynote
> speaker after waiting for all the other members of the public to go through
> the line, we know why they do it. They want to report to the world that our
> disability is there as a part of their program. They are seldom truly
> pursuing us for our credentials or our capacity. If we are not careful, and
> if we do not stay close to the National Federation of the Blind for
> recalibration, in the words of Jennifer Dunnam, we can come to believe that
> our value in that situation is not defined by who we are but by the fact
> that we are blind.
> The public does it to us, and it is done with good intentions. We
> cannot allow our road to Hell to be paved with these good intentions, so we
> must not pave that road for anyone. If we pave the road to reduced
> productivity for blind people who also represent traditionally
> underprivileged social strata, we are teaching them to sit back and to
> allow their value to be generated by their characteristics. If we
> systematically reduce the productivity of those individuals, we, the
> nation's blind, cannot access the true value that they have. It follows
> then that we are reducing our own productivity by reducing it for others
> who contribute to ours. Just as we ask others to do for us, we should do
> for others. We must find ways to break down barriers to the full
> participation in our movement to all blind people and insist that nobody be
> a token. The potential is too great to squander.
> We are working to ensure that social strata do not inhibit a blind
> person from participating to his or her fullest potential in our movement,
> but we also don't want the strata to become branded as the reason for that
> person to participate, distracting us all from his or her true potential.
> When great leaders arise in our movement, it is their contributions that
> make them great, not the diversity cards in their hands, even if they have
> a killer hand.
> Sometimes someone from an underrepresented population can have the
> ability to connect with populations who are not being effectively reached.
> In my case I'm sure there are some blind Native Americans whom I may be
> able to reach in ways that non-native members may not be able to reach
> because of my background. There are other components of my identity that
> could also function the same way. Maybe it is in connecting with people who
> come from towns so small that the only danger outdoors at night comes from
> bears and coyotes. Maybe it is with people who grew up in poorer
> communities right next to wealthier ones. Maybe it is in working with
> students who are the first person in their family to ever pursue higher
> education. These factors are also sources of diversity and can create
> opportunities to reach more people. In our movement there is a value to
> being able to connect with people who might not otherwise feel connected.
> Maybe more visibly contributing Latino members can help us reach more
> Latinos in the general public, a goal that we have since they are the
> largest minority group in our country.
> Sometimes, there are benefits that come from being an active part of
> the National Federation of the Blind that really have nothing to do with
> blindness. We are a family and a community of people who work hard and care
> about each other. The more we interact with people from all types of
> backgrounds, the more we can demystify those groups and become comfortable
> with them. For some of us the Federation may be the only place where we
> interact with someone of a particular religion or country of origin. I know
> that this is sometimes the case for me. Even better, maybe the Federation
> is the only or primary place that we can have positive interactions with
> someone from a particular background. Maybe it is the most positive type of
> interaction. I run into much hostility from African-Americans on a daily
> basis, but the very positive relationships that I have with people like
> Anil Lewis, Roland Allen, and Ever Lee Hairston help me keep my sanity and
> faith in that group. This helps me be able to work with a population that
> spans far beyond the blind community, and it strengthens me as a person. We
> need blind people to be as strong, capable, and confident as possible in
> order for us to achieve first-class status. We are blind people, and we are
> simply people too. Our Federation family has a unique ability to serve
> these types of roles in our lives because of how emotionally powerful our
> work is. Learning to believe in ourselves and working together to raise the
> expectations of blind people, transforming dreams into reality, is not
> something that we do with no emotional benefits. The Federation strengthens
> us even more than we strengthen it, but it can do so only if we keep
> feeding the fire.
> When people ask us to show up and be blind for them, they are
> teaching us that our value comes from being blind and showing up. Let us be
> careful not to tell any potential contributor to our movement that his or
> her potential value is so limited. Together, we can find out what we can
> truly achieve. We can push the limits and capitalize on the talents and
> enthusiasm of everyone who wants to contribute.
> ----------
> Consider a Charitable Gift
>
> Making a charitable gift can be one of the most satisfying
> experiences in life. Each year millions of people contribute their time,
> talent, and treasure to charitable organizations. When you plan for a gift
> to the National Federation of the Blind, you are not just making a
> donation; you are leaving a legacy that insures a future for blind people
> throughout the country. Special giving programs are available through the
> National Federation of the Blind (NFB).
>
>
> Points to Consider When Making a Gift to the National Federation of the
> Blind
>
> . Will my gift serve to advance the mission of the NFB?
> . Am I giving the most appropriate asset?
> . Have I selected the best way to make my gift?
> . Have I considered the tax consequences of my gift?
> . Have I sought counsel from a competent advisor?
> . Have I talked to the NFB planned giving officer about my gift?
>
> Benefits of Making a Gift to the NFB
> . Helping the NFB fulfill its mission
> . Receiving income tax savings through a charitable deduction
> . Making capital gain tax savings on contribution of some appreciated
> gifts
> . Providing retained payments for the life of a donor or other
> beneficiaries
> . Eliminating federal estate tax in certain situations
> . Reducing estate settlement cost
>
> Your Gift Will Help Us
> . Make the study of science and math a real possibility for blind
> children
> . Provide hope and training for seniors losing vision
> . Promote state and chapter programs and provide information that will
> educate blind people
> . Advance technology helpful to the blind
> . Create a state-of-the-art library on blindness
> . Train and inspire professionals working with the blind
> . Provide critical information to parents of blind children
> . Mentor blind people trying to find jobs
> Your gift makes you a part of the NFB dream!
> ----------
> The Kenneth Jernigan Convention Scholarship Fund
> by Allen Harris
>
> From the Editor: Allen Harris is the chairman of the Kenneth Jernigan
> Fund Committee and was one of the people who came up with the idea of
> honoring our former president and longtime leader by establishing a program
> to promote attendance at the national convention, where so much inspiration
> and learning occur. Here is Allen's announcement about the 2016 Kenneth
> Jernigan Convention Scholarship Fund Program:
>
> Have you always wanted to attend an NFB annual convention but have
> not done so because of the lack of funds? The Kenneth Jernigan Convention
> Scholarship Fund invites you to make an application for a scholarship
> grant. Perhaps this July you too can be in the Rosen Shingle Creek Hotel in
> Orlando, Florida, enjoying the many pleasures and learning opportunities at
> the largest and most important yearly convention of blind people in the
> world.
> The three biggest ticket items you need to cover when attending an
> NFB national convention are the roundtrip transportation, the hotel room
> for a week, and the food (which tends to be higher priced than at home). We
> attempt to award additional funds to families, but, whether a family or an
> individual is granted a scholarship, this fund can only help; it won't pay
> all the costs. Last year most of the sixty grants were in the range of $400
> to $500 per individual.
> We recommend that you find an NFB member as your personal convention
> mentor, someone who has been to many national conventions and is able to
> share money-saving tips with you and tips on navigating the extensive
> agenda in the big hotel. Your mentor will help you get the most out of the
> amazing experience that is convention week.
>
> Who is eligible?
> Active NFB members, blind or sighted, who have not yet attended an
> NFB national convention because of lack of funding are eligible to apply.
>
> How do I apply for funding assistance?
> 1. You write a letter giving your contact information, and your local
> NFB information, your specific amount requested, and then explain why this
> is a good investment for the NFB. The points to cover are listed below.
> 2. You contact your state president in person or by phone to request
> his or her help in obtaining funding. Be sure to tell the president when to
> expect your request letter by email, and mention the deadline.
> 3. You (or a friend) send your letter by email to your state
> president. He or she must add a president's recommendation and then email
> both letters directly to the Kenneth Jernigan Convention Scholarship Fund
> Committee. Your president must forward the two letters no later than April
> 15, 2016.
>
> Your letter to Chairperson Allen Harris must cover these points:
> .Your full name, and all your telephone numbers and label them-cell phone,
> home, office, other person (if any).
> .Your mailing address and, if you have one, your email address.
> .Your state affiliate and state president; your chapter and chapter
> president, if you attend a chapter.
> .Your personal convention mentor, and provide that person's phone number.
> .Your specific request:
> Explain how much money you need from this fund to make this trip
> possible for you. We suggest you consult with other members to make a rough
> budget for yourself.
>
> The body of your letter should answer these questions:
> How do you currently participate in the Federation? Why do you want
> to attend a national convention? What would you receive; what can you share
> or give? You can include in your letter to the committee any special
> circumstances you hope they will take into consideration.
>
> When will I be notified that I am a winner?
> If you are chosen to receive this scholarship, you will receive a
> letter with convention details that should answer most of your questions.
> The committee makes every effort to notify scholarship winners by May 15,
> but you must do several things before that to be prepared to attend if you
> are chosen:
> 1. Make your own hotel reservation. If something prevents you from
> attending, you can cancel the reservation. (Yes, you may arrange for
> roommates of your own to reduce the cost.)
> 2. Register online for the entire convention, including the banquet,
> by May 31.
> 3. Find someone in your chapter or affiliate who has been to many
> conventions and can answer your questions as a friend and advisor.
> 4. If you do not hear from the committee by May 15, then you did not
> win a grant this year.
>
> How will I receive my convention scholarship?
> At convention you will be given a debit card or credit card loaded
> with the amount of your award. The times and locations to pick up your card
> will be listed in the letter we send you. The committee is not able to
> provide funds before the convention, so work with your chapter and state
> affiliate to assist you by obtaining an agreement to advance funds if you
> win a scholarship and to pay your treasury back after you receive your
> debit or credit card.
> What if I have more questions? For additional information email the
> chairman, Allen Harris, at <kjscholarships at nfb.org> or call his Baltimore,
> Maryland, office at (410) 659-9314, extension 2415.
> Above all, please use this opportunity to attend your first
> convention on the national level and join several thousand active
> Federationists in the most important meeting of the blind in the world. We
> hope to see you in Orlando.
>
> ----------
> Court Renders Major Decision on the Practice of Paying Subminimum Wages to
> Disabled Workers
>
> From the Editor: Anyone who reads the Braille Monitor knows that we
> have been engaged in an effort to get the Congress of the United States to
> amend the Fair Labor Standards Act by phasing out section 14(c), a law
> passed in 1938 which allows the payment of less than the minimum wage to
> disabled workers. The executive branch took action in 2015 to see that
> blind workers employed by federal contractors receive at least $10.10 an
> hour. Now the third branch of government, the judiciary, has weighed in,
> and we reprint here a significant decision arguing against the use of
> section 14(c) and the procedures used by facilities that seek to take
> advantage of its provisions at the expense of disabled workers. Throughout
> this opinion the reader will find long-standing arguments made by the
> National Federation of the Blind to be ones the judge arrives at through
> observation, considerable thought, and the application of common sense. For
> readability we have left out the footnotes, but anyone wishing a full copy
> of the document can receive it in .pdf by writing to <gwunder at nfb.org>.
> Here is what the National Federation of the Blind's director of legal
> policy, Marc Maurer, has to say about the decision:
> "We have received the attached decision from the administrative law
> judge in the Seneca Re-Ad case. Three petitioners in a sheltered workshop
> were being paid less than the minimum wage. The legal standard to permit
> this is that the individuals be disabled for the work to be performed. The
> judge determined that these petitioners are not so disabled, which leads to
> the conclusion that the Fair Labor Standards Act was violated. I would
> call this a substantial march of progress. The judge declared that there
> has to be a connection between the disability and the diminution of
> performance of a job task before subminimum wages are permitted. It is not
> enough to allege disability. The workshop has the burden of demonstrating
> that subminimum wages are justified, and this decision makes demonstrating
> the connection much more difficult."
> Here is the decision:
>
> Issue Date: 02 February 2016
>
> Case No.: 2016-FLS-3
>
> In the Matter of:
>
> Petition for Review of Special
> Minimum Wage Rate Pursuant to
> Section 14(c)(5)(A) of the Fair Labor
> Standards Act by:
>
> RALPH MAGERS, Petitioner,
>
> and PAMELA STEWARD, Petitioner,
>
> and MARK FELTON, Petitioner,
>
> v.
>
> SENECA RE-AD INDUSTRIES, INC., Respondent.
>
> DECISION AND ORDER
>
> I. INTRODUCTION
>
> This case arises under Section 214(c) of the Fair Labor Standards Act
> ("Act"), 29 U.S.C.
> §214(c).1 Ralph ("Joe") Magers, Pamela Steward, and Mark Felton
> ("Petitioners") are employees of Seneca Re-Ad Industries ("Respondent"),
> which is located in Fostoria, Ohio. Each of the Petitioners has been
> diagnosed with one or more developmental disabilities,2 and each receives
> services from the Seneca County (Ohio) Board of Developmental Disabilities
> ("DD").3 Employment at Respondent's Fostoria manufacturing facility is one
> of the services provided by DD.4
> DD provides services to approximately 230 persons in Seneca County.5
> Approximately 37 people are receiving DD services in the form of community
> (competitive) employment. Approximately 120 persons work in DD's "sheltered
> workshops" (now generally referred to as "community rehabilitation
> programs"). Respondent is a not-for-profit corporation which has a contract
> with DD to provide employment opportunities to DD's clients.6
> At all relevant times, Respondent has held a Certificate issued by
> the United States Department of Labor (a "Section 214(c) Certificate")
> which has authorized Respondent to pay less than the minimum wage7 to
> Petitioners for nearly all of the work they perform. In this action,
> Petitioners seek a review of the special minimum wages paid to them.
> Over the past 75 years, implementation and enforcement of the Fair
> Labor Standards Act has defined the most fundamental relationships between
> American employers and their employees. The 40-hour workweek, overtime pay,
> and the near elimination of child labor have been woven into the fabric of
> the modern workplace. Applicability of the Act to specific workplace
> conditions continues to cause disagreement, and litigation under the Act
> (and its state counterparts) remains a staple of federal and state court
> dockets.
> Our collective notions of disability, and in particular our notions of
> how a disability might affect the ability of an individual to participate
> in employment, have also changed dramatically over the past few decades.
> Statutes such as the Americans with Disabilities Act have fundamentally
> altered the ways in which employees with disabilities are able to find and
> sustain competitive employment.
> The instant case does not involve competitive employment. Nor, based
> upon my review of the evidence at the hearing, does it really involve what
> were once called "sheltered workshops." The Petitioners live independently
> in the community. They have held competitive employment in the past. Each
> of them brings valuable employment skills to the Respondent's modern
> manufacturing facility every day. When working for Respondent, the
> Petitioners participate in the production of products having commercial
> value. Like American workers in competitive employment, Petitioners view
> themselves partially through a lens of their labor. How and where they
> work, and what they do in the workplace, and how they are compensated,
> gives the Petitioners a significant portion of their identity.
> The workplace relationship between Petitioners and Respondent is
> complicated and is fundamentally different from competitive employment. A
> few of the differences are: (1) Petitioners have voluntarily chosen to
> participate in a Seneca County program for those with developmental
> disabilities instead of pursuing competitive employment in the community.
> By accepting disability services from Respondent, Petitioners have agreed
> to accept the special minimum wages-far below minimum wage-which are
> authorized by Section 214 of the Act and by the Section 214(c) Certificate
> held by Respondent; (2) The manner in which the Petitioners' compensation
> is calculated is neither easily comprehended nor transparent. In the
> hearing of this case, the calculation of the so-called "commensurate wages"
> paid to Petitioners was explained by an expert; (3) The Petitioner's
> "personnel files" contain medical, social and psychological information
> which would not be available to employers in the realm of competitive
> employment; (4) Some of the jobs performed at Respondent's manufacturing
> facility are designed to maximize employment opportunities for those with
> developmental disabilities, rather than to maximize the output of goods in
> a workday. This choice by Respondent maximizes the number of persons to
> whom disability services might be provided by Seneca County. This choice by
> Respondent does not maximize the amount of money any employee will see in
> her paycheck. As Rodney Biggert, Division Manager of DD, explained:
>
> Q. Okay. So let me circle back to that question of why not pay
> minimum wage. And you said that, I believe, that you couldn't pay
> minimum wage because you wanted to increase opportunities for workers
> with disabilities, is that correct?
>
>
> A. Correct.
>
> Q. Can you explain what the connection is between-why subminimum
> wage is necessary for you to create opportunity?
>
>
> A. In the case of the Fostoria division, if our costs were to
> increase to that extent-
>
>
> JUDGE BELL: To what extent?
>
>
> THE WITNESS: To the extent where we are paying every individual at
> least minimum wage, it would be hard to retain that contract [with
> Roppe Industries] without some large change in the way they do
> business, which I mean-which by that, I mean automating a large
> portion of what we do and eliminating at least half of the workforce.8
>
> In Respondent's Fostoria workplace, Petitioner's wages are suppressed
> by: (1) Section 214(c) of the Act, which authorizes special minimum wages
> to be paid to those with disabilities; and (2) Petitioners' disabilities,
> and how those disabilities might actually affect their ability to perform
> in the workplace, but also how those disabilities are perceived by the
> Petitioners and by others; and (3) Respondent's choice that the number of
> employment opportunities which may be offered to the disabled in this
> specific workplace will be given priority over the amount of compensation
> paid to any individual disabled employee; and (4) the manner in which
> higher- paying jobs are assigned to Petitioners; and (5) the manner in
> which the Petitioner's commensurate wages are calculated; and (6) the
> health of the labor market in Seneca County.
> For the reasons explained below, I find that the special minimum
> wages actually paid to the Petitioners are not justifiable given the nature
> and extent of the Petitioner's respective disabilities. Respondent has
> failed to demonstrate that the Petitioners are "impaired by a physical or
> mental disability . . . for the work to be performed"9 by each Petitioner
> at the Respondent's Fostoria, Ohio, manufacturing facility. By failing to
> pay minimum wage to each of the Petitioners, Respondent has violated §206
> of the Act.
> For the reasons explained below, I also find the special minimum
> wages actually paid to the Petitioners have not been appropriately
> calculated. Respondent has failed to meet its burden to justify "the
> propriety of [the] wage" paid to the Petitioners.10 By failing to pay
> minimum wage to each of the Petitioners, Respondent has violated §206 of
> the Act.
> Each of these findings independently requires that I find in favor of
> each Petitioner, and that I fashion an appropriate remedy for each of them.
> For the reasons which follow, I will order that each of the Petitioners be
> paid at least the Ohio minimum wage going forward, and I will award back
> pay and liquidated damages to each of them. I will also award attorney fees
> and reasonable litigation costs to Petitioners if such a remedy is
> available.
>
> II. PROCEDURAL HISTORY
>
> On November 17, 2015, Petitioners submitted a "Petition for Review of
> Wages" to the Wage and Hour Division of the United States Department of
> Labor. On November 25, 2015, the Wage and Hour Division referred the matter
> to the Office of Administrative Law Judges. The case was assigned to me on
> December 16, 2015. On that date, I conducted a telephone conference with
> counsel, and thereafter issued an Order: (1) setting the date and location
> of the formal hearing; (2) establishing a discovery schedule, and (3)
> requiring Respondent to immediately produce to Petitioners the information
> described in 29 C.F.R. §525.16.11
> Pursuant to the Act12 and Department of Labor regulations,13 I was required
> to schedule and conduct a hearing on an expedited basis. The formal hearing
> was held in a public courtroom at the Seneca County Court of Common Pleas
> in Tiffin, Ohio, on January 4, 5, 6, 7 and 8, 2016. On the morning of
> January 6, I was able (along with counsel) to visit the manufacturing
> facility in Fostoria, Ohio, where each of the Petitioners is now employed.
> While there, I was able to observe production activities at Respondent's
> facility.
> Petitioners' Exhibits 1 through 18 and Respondent's Exhibits 1
> through 24 and A1 through D1 were admitted without objection during the
> hearing. On January 18, 2016, the parties filed post-hearing briefs. I have
> reviewed a transcript of the hearing in the preparation of this Decision
> and Order.14
>
> III. THE PETITIONERS
>
> Petitioners work at Respondent's manufacturing facility for a variety
> of reasons. Some of these reasons are easily understood-such as the
> difficulty finding transportation in a largely rural county. Some of the
> reasons involve the types of available jobs for unskilled laborers. Some
> reasons are connected to the Petitioners' disabilities. Petitioners'
> expert, Dr. Fredric Schroeder, testified about the relationship of these
> factors:
>
> JUDGE BELL: What, if anything, do you understand to be the nature of
> the labor market here in Tiffin or Seneca County, generally?
>
>
> THE WITNESS: Oh, I know that this is a college town; I know that that
> stimulates certain kinds of industry, business. But also I'm assuming,
> and I'm not intricately familiar with this community, but I'm
> assuming, being fairly rural, there's probably some agriculture. I
> have not done a labor market survey of this area.
>
>
> JUDGE BELL: Do you know whether there are other simple assembly
> positions that are available to those in the community who may wish to
> have those jobs and who may be able to get transportation to those
> jobs or is there a shortage of those kinds of jobs? If you know.
>
>
> THE WITNESS: I haven't done a labor market survey. I know there's some
> light industry in the area. So I don't know. But really, the
> individuals, based on the conversations that I've had with them, I
> probably would not be exploring the same type of work within an
> integrated setting. I'd be looking, I think, for different types of
> employment options for them.
>
>
> JUDGE BELL: Such as?
>
>
> THE WITNESS: Well, again, it's an exploratory process. You start with
> the individual's interests, but you have to factor in all sorts of-
> like transportation. But also there's a huge social dynamic around
> disability and that social dynamic means, for some individuals, they
> can go into an integrated setting and function very well without any
> particular supports where other individuals, just to put it bluntly,
> they've been told for a lifetime that they're inferior, that they
> can't work at a competitive level, that they're slow, they're
> inaccurate, and they may need a good bit of support.
> So it's not-what you're trying to do in rehabilitation is
> maximize employment, see how far you can take the individual in
> finding a job that's a good fit for them, makes-that they enjoy, that
> they're good at, that they're comfortable with. So all of the skills
> parts just kind of help inform you and then you look at the community,
> you look at the available jobs, you meet with employers, you look at
> the employment setting, the receptivity of the coworkers, there's just
> so many tangible and intangibles. But I would describe the process as
> an exploration, and with each individual it will vary a great deal in
> how much support they may need.15
>
> Ralph ("Joe") Magers applied for DD services on November 3, 2009.
> According to the materials in his file,16 Mr. Magers is legally blind. Mr.
> Magers" OEDI17 score sheet finds substantial functional limitations in the
> following areas: mobility, self-care, self-direction, capacity for
> independent living and economic self-sufficiency.18 He attended the Ohio
> School for the Blind, where it was determined that his "measured mental
> ability . . . is within the superior range."19 The Ohio School for the
> Blind noted that "Joe is a very hard, conscientious worker."20 Mr. Magers
> has worked for Respondent for approximately six years.21 Although legally
> blind, he has sufficient sight to be able to get around in familiar
> areas.22 He has some difficulty differentiating between items of similar
> color, and he needs larger print in order to be able to read.23 He lives by
> himself.24 He does not drive. He pays his bills, shops for his groceries,
> and does his laundry.25 He has held some competitive employment in the
> past, most notably a three-year period of employment with Ticketmaster. He
> also worked in a call center. In these jobs, Mr. Magers earned more than
> minimum wage.26
> As a result of his visual impairment, Mr. Magers has transportation
> issues. He describes his travel methods:
>
> Q. Okay. And do you drive?
>
>
> A. No.
>
>
> Q. How do you get around Tiffin?
>
>
> A. I mostly walk. I will take SCAT transportation from time to
> time, and maybe if I had a little more money, I'd take a cab now and
> then.
>
>
> Q. And what is SCAT transportation?
>
>
> A. That's more or less our version of-Seneca County's version of
> Paratransit. It probably operates under a bit different rules since
> there are no fixed routes.
>
>
> Q. Okay. And does it operate during certain hours?
>
>
> A. Yes. Weekdays, it operates from quite early in the morning until-
> I think they want to be over and done by 6:00. So most generally they
> want-they try to make it more like it's 5:00. But if you're doing a
> special thing, you can-you'll have services a little past 5:00.27
>
> Pamela Steward applied for DD services on May 11, 2009.28 She has
> worked at Respondent's Fostoria manufacturing facility for nearly six
> years. She is blind in her right eye, but has fairly good vision in her
> left eye.29 She does not drive. She lives alone and is responsible for
> running her household.30 She has also been diagnosed with an intellectual
> disability.31 She has held some competitive employment in the past, but was
> out of the labor market immediately after graduating from high school and
> for many years thereafter while raising a family.32 Her OEDI form finds
> that she has substantial functional limitations in the areas of self-care,
> self-direction, capacity for independent living, learning and economic self-
> sufficiency.33 A hand-written document in her file states:
> Pam can accomplish most daily living skills. She does not need
> assistance, however, with money/budgeting, laundry, medication, and
> transportation. Social skills: Pam appears friendly. She has been in a long-
> term marriage and has contact with her family on a regular basis. Pam has
> an adult daughter. Physical: Pam has a diagnosis of depression. No
> limitations per her physical. Vocational: very limited past employment at a
> tomato farm. She could not keep up with production demands.34
> Ms. Steward has chosen to work at the Fostoria manufacturing facility
> mostly because of availability of transportation, but also because she
> feels more comfortable there than she would in competitive employment:
>
> The only reason I do choose to work there is because of
> transportation. I'm able to get along with the people better there.
> They don't act like they're better than me. I mean, the employees that
> do work there, we're all in competition and we pretty well get
> along.35
>
> Mark Felton has worked for Respondent for approximately four years.36
> He has been diagnosed with Asperger's disorder. He has held a small amount
> of competitive employment in the past.37 He graduated from high school in
> 2011.38 He has held an Ohio driver's license since 2014, although he does
> not have a car. He lives at home with his parents.39
>
> IV. THE RESPONDENT
>
> The Seneca County Board of Mental Retardation (predecessor of DD) was
> established in 1967.40 At some point thereafter, Respondent and Roppe
> Industries entered into a partnership and established a workshop in
> Fostoria, Ohio.41 Roppe Industries is a Fostoria-based company which
> manufactures rubber flooring and other products.42 In 1989, Respondent's
> Fostoria workshop was moved into a factory purchased by Roppe Industries.43
> The Fostoria facility performs many jobs under a contract with Roppe
> Industries.44 A representative of Roppe Industries holds a seat on the
> Board of Respondent.45
> Respondent's Fostoria facility is in operation between 8:30 am and
> 3:15 pm on weekdays. All employees are required to spend approximately one
> hour of the workday in an unpaid educational or social "activity." There is
> a 30-minute lunch period, and two 15-minute breaks during the workday. It
> is thus difficult for an employee at Fostoria to perform more than about 5
> hours per day of paid work.
>
> V. THE WORK PERFORMED BY PETITIONERS
>
> In order to determine whether the payment of a "special minimum wage"
> is justified, a number of criteria are considered:
>
> (1) The nature and extent of the disabilities of the individuals
> employed as these disabilities relate to the individuals'
> productivity;
>
>
> (2) The prevailing wages of experienced employees not disabled for
> the job who are employed in the vicinity in industry engaged in work
> comparable to that performed at the special minimum wage rate;
>
>
> (3) The productivity of the workers with disabilities compared to
> the norm established for nondisabled workers through the use of a
> verifiable work measurement method (see §525.12(h)) or the
> productivity of experienced nondisabled workers employed in the
> vicinity on comparable work; and
>
>
> (4) The wage rates to be paid to the workers with disabilities for
> work comparable to that performed by experienced nondisabled
> workers.46
>
> At Respondent's Fostoria facility, a significant amount of the work
> performed is finishing and packaging product from Roppe Industries. By way
> of example, at Respondent's Fostoria manufacturing facility, pieces of
> rubber flooring manufactured by Roppe Industries are cut to appropriate
> size, the pieces have a hole drilled in them, and the pieces are sent
> through a printing process where each piece has identifying information
> printed onto it. Each of these cutting, drilling and printing jobs is paid
> on a piece-rate basis, and the Respondents each have experience performing
> these various jobs.
> When performing jobs paid on a piece-rate basis, each of the
> Petitioners occasionally has been able to earn more than minimum wage. For
> example, Mark Felton was able to earn more than $14.00 per hour on
> September 4, 2015, on a press machine that punches out rubber grommets from
> a blank (the "Click 5 machine").47 On October 16, 2015, Joe Magers was able
> to earn nearly $9.00 per hour on a piece-rate job called "Affix Screw and
> Remove."48 Pamela Steward was able to earn $11.84 per hour on a drill press
> on October 2, 2015.49 The Ohio minimum wage during this period was $8.10.
> Mr. Biggert described the opportunities for community employment:
>
> Q. Mr. Biggert, you do have folks that do have community
> employment; is that correct?
>
>
> A. Yes.
>
>
> Q. And some of them are community employment at the same time that
> they're working at Seneca Re-ad; is that correct?
>
>
> A. Yes.
>
>
> Q. The folks who are working community employment, they're getting
> paid above minimum wage when they're in the community; is that right?
>
>
> A. Correct.
>
>
> Q. And they're getting paid below minimum wage in your workshop; is
> that right?
>
>
> A. Correct.50
>
> The most significant job at Respondent's Fostoria manufacturing
> facility which is paid on an hourly basis is known as "the line" or "the
> assembly line" or "the Creform line."51 Photographs of the Creform line are
> in the record.52 The end product of the Creform line is a bundle containing
> many different colored samples (each approximately 4 inches long by 2.5
> inches wide) of Roppe Industries' rubber flooring held together by a small
> metal chain. A photograph showing this completed bundle of samples is in
> the record.53 A consumer wishing to purchase Roppe Industries products can
> presumably take this bundle to a home or office in order to select the
> appropriate color to purchase.
> Anywhere between thirty and forty employees sit or stand at stations
> along the Creform line. In blue and red bins in front of each work station
> are pieces of the Roppe Industries product which, before being delivered to
> the line, have been cut to size, had the printed legend applied, and has
> had a hole drilled in them. A photograph of the bins containing the Roppe
> Industries product is in the record.54
> A wooden jig, approximately 24 inches tall and 6 inches wide, has a
> metal post sticking straight up from its base. A long metal chain is placed
> over the tip of the post so that the chain hangs parallel to the post. A
> photograph of several jigs with the chains in place is in the record.55 The
> jig is slid on a table containing embedded rollers from person to person
> down the assembly line from each worker's left to right. The employee at
> each station will typically remove one sample from each of the two bins in
> front of the employee (each bin contains a different color product), and
> will then place the hole in the product over the post, thereby threading
> the chain through the hole that has been drilled in each piece. The jig is
> then slid along the table to the next person on the line, who repeats the
> process with different color samples. At the end of the line, the chain is
> closed and the ring of samples is inspected and then sent off for shipment.
> During the period August 14, 2015, to December 15, 2015,
> approximately 51 percent of Mark Felton's working hours at the Fostoria
> manufacturing facility were on the Creform line.56 He was paid $4.11 per
> hour for his Creform line work.57 During the same period, Joe Magers spent
> about 62 percent of his work time on the Creform line.58 Mr. Magers was
> initially paid $3.00, and then $3.15 per hour, for his work on the Creform
> line.59 Pamela Steward spent about 52 percent of her work time during this
> period on the Creform line, for which she was paid $3.22 per hour.60
> When absences, "activity" time, holidays, and other unpaid time is
> deducted, during the period August 14, 2015, to December 31, 2015, Mark
> Felton was paid for working a total of 328.25 hours at Respondent's
> Fostoria facility (approximately 16.5 paid hours per week).61 His gross
> compensation during that period was $2,573.63 (about $129 gross per week),
> and that amount includes an unexplained "Misc-Adj" payment of $571 paid
> just before this matter went to hearing.62
> During the same period, Joe Magers had a total of 257 hours for which
> he was paid wages (about 13 paid hours per week).63 His gross compensation
> during the period was $1,534.32, or about $77 gross per week, which also
> includes an unexplained "Misc-Adj" payment of 435.54.
> During the same period, Pamela Steward was paid for working 278.25
> hours (about 14 paid hours per week). Her gross compensation during the
> period was $2,624.41 (about $131 gross per week), including a "Misc-Adj"
> payment of $685.55. Ms. Steward testified about the unexplained "Misc-Adj"
> payment:
>
>
> Q. Okay. And do you know how much your average paycheck is?
>
>
> A. Here recently, I can't even figure this one out, why it would be
> that high or anything like that there. But here recently, just before
> Christmas I received a check of $763.13.
>
>
> Q. And you can't figure out why it's that -
>
>
> A. No, I do not have no idea, no, why it's that high and why it
> would be that high.
>
>
> Q. And before that, how much were you getting paid, that paycheck -
>
>
> A. Well, I was probably getting maybe like $100, $200 maybe.
>
>
> Q. Every two weeks?
>
>
> A. When I was placed on the good jobs, when I was on those jobs
> like the saw and that.
>
>
> Q. And you're paid every two weeks, is that correct?
>
>
> A. Yeah. I mean, I made a call to Michelle Guest (ph.) this
> morning, stating how high my check was and why it was that high and
> she said, well-she goes, we think you got a letter in with the check.
> But I don't recall seeing a letter in with that check-
>
>
> Q. Okay.
>
>
> A. -stating why it would be that high. I mean, I don't have a
> problem with it, that's fine. I mean, if you want to pay that kind of
> money, go ahead and pay me that kind of money. I mean, I just can't
> figure out why it would be so darn high.64
>
> VI. THE CALCULATION OF COMMENSURATE HOURLY WAGES
>
> Department of Labor regulations describe the methods by which the
> special minimum wages paid to the Petitioners and their co-workers are to
> be calculated. A method for calculating work paid as piece-work,65 and a
> method for calculating hourly wages66 are prescribed by the Department of
> Labor.
> The Section 14(c) Certificate issued to Respondent by the Department
> of Labor authorizes Respondent to pay special minimum wages to those
> working in the facility. For the work performed on the Creform line (paid
> on an hourly basis),67 the calculation of the hourly wage to be paid
> requires Respondent to gather the following information:
>
> 1. Respondent conducts an annual survey of employers in Seneca County,
> Ohio, to determine the amount of hourly wages being paid to experienced
> workers in competitive positions thought to be comparable to those occupied
> by Petitioners (this is known as the "prevailing rate").68
>
> 2. From time to time,69 Respondent determines how many jigs can be
> processed in one hour by a non-disabled worker familiar with the Creform
> line.70 This number becomes known as the "production standard" or "standard
> of production." The persons participating in this timed test are typically
> supervisors with familiarity with the operation of the Creform line.71 The
> most recent results of these timed tests are Respondent Exhibits C-1 and C-
> 2. Over the past few years, the production standard for the Creform line
> has been established at these levels:
>
> Dates and Production Standard (Jigs per Hour)
> 2010 to 2013: 816
> 2013 to 2016: 1,114
> 2016 (current): 1,607
>
> 3. Approximately once every six months, Respondent individually
> determines how many jigs of product can be processed in one hour by each
> employee working on the Creform line.72 A supervisor will time the employee
> and count the number of jigs processed during that time.73 Once the
> information described above is gathered, a calculation is made: the number
> of jigs per hour completed by the tested employee (Step 3) is divided by
> production standard (established by the number of pieces completed in one
> hour by the tested supervisor at Step 2). That product is then multiplied
> by the prevailing rate (the hourly wage paid to experienced workers in the
> county) as determined by Step 1. This calculation yields the "commensurate
> hourly wage" to be paid to the employee for his or her work on the Creform
> line.74
> By way of example: If the prevailing rate for light manufacturing in
> Seneca County is $9.00 per hour (step 1), and if the standard setter can
> complete 1,000 jigs on the Creform line in an hour (step 2), and if a
> disabled employee on the Creform line can complete 750 jigs per hour (step
> 3), then the commensurate wage to be paid to the worker is $6.75 per hour
> (750 divided by 1,000 = 0.75. $9.00 multiplied by 0.75 = $6.75). This
> commensurate wage remains in effect until the next time the employee's
> performance is tested, or until the information in steps 1 or 2 changes.
> The measurement of the hourly rate of production achieved on the
> Creform line, either by supervisors when acting as "standard setters," or
> by the Petitioners during their twice-yearly production assessments, plays
> a critical role in determining the hourly wage paid to each of the
> Petitioners for their work on the line.
> Exhibits D-1 through D-6 are the "Hourly Job Sampling" forms
> completed for each Petitioner during the relevant period. While all of
> these forms indicate the Petitioner was tested on the line for precisely
> "1.000000 hour" or for "100% of an hour," and while each form reports a
> precise number of jigs produced during that 1-hour test period, the
> testimony at the hearing was that these tests actually only lasted a few
> minutes, and the performance results recorded on the Hourly Job Sampling
> forms were extrapolated from a very short period of actual examination to a
> 1-hour time period. By way of example, Exhibit D-1 is a June 17, 2013,
> Hourly Job Sampling report for Mark Felton. This form reports on its face
> that Mr. Felton produced 251 jigs on the Creform line in 1.000000 hour. Mr.
> Felton testified about his testing:
>
> Q. So Mark, when-did Terry do most of the time studies?
>
>
> A. Yes.
>
>
> Q. And did he tell you he was doing the time study when he did it?
>
>
> A. I think so.
>
>
> Q. So you were on the Creform line. And do you recall how long the
> time study lasted or how it was measured, how he did it?
>
>
> A. It was probably less than a minute, I'm pretty sure.
>
>
> Q. Do you know if he was measuring it by time or number of jigs?
>
>
> A. Pretty much pace the jigs, how fast you run the jigs.75
>
>
> Mr. Magers testified as follows:
>
>
> Q. Okay. Now, during the time that you've been at the workshop, has
> your productivity ever been tested or timed?
>
>
> A. Only on the line.
>
>
> Q. Okay. And when they test you, do you guys have a name for what
> that's called?
>
> A. Well, they do call it a time study.
>
>
> Q. Okay. So do you know about how often they normally do time
> studies?
>
>
> A. Usually about every six months.
>
>
> Q. Okay. And is it your testimony that they've only done time
> studies for you on the line?
>
>
> A. Yes, I know of no other situations. And I guess there's even
> been times when they'd study me on the line unbeknownst to me.
>
>
> Q. Okay. And how do they normally do like, you know, their time
> studies? Who does it and what do they tell you?
>
>
> A. It would be done by Terry Stocker. They set you up with about
> eight jigs and I don't know, they kind of, you know, prod you in there
> and they don't really encourage much of any kind of real productivity.
> And, you know, in that time you're kind of hoping that you don't cause
> a chain to fall off the jig so you're not worried about taking time
> putting that back on.
>
>
> Q. So how long does it take you to do about eight jigs?
>
>
> A. Probably less than a minute.
>
>
> Q. So they're not-are they then timing you for like a certain
> amount of time or just doing it by however many jigs they set up for
> you?
>
>
> A. Just however many jigs they set up.76
>
> Ms. Steward testified about her testing on the Creform line:
>
>
> Q. Okay. Now when they normally test you on the Creform line, how
> does that-what happens when they're testing you?
>
>
> A. Terry or Rodney generally come over and tell me, hey, Pam, I'm
> going to test you today. Are you fine with that? And I'll tell them,
> yes, I am fine with that. So he'll test me and I'm generally pretty
> fast at my work.
>
>
> Q. How long does the test last, generally?
>
>
> A. I don't even think it lasts more than a minute. It don't seem
> like it, anyways.
>
>
> Q. Does he give you a certain number of jigs to work or how does
> that-
>
>
> A. Yeah, probably about eight, maybe.77
>
> There is no accurate recording of the actual, observed, production of
> the Petitioners anywhere in the record until after this proceeding had been
> commenced and Mr. Knuckles was hired by Respondent as a consultant. These
> tests have a direct and substantial impact on the calculation of the hourly
> wage to be paid to the Petitioners.
> There are accurate recordings of the actual, observed, production of
> the standard setters. Exhibit C-1 presents the results of a timed test
> performed by supervisors on September 30, 2013. The face of this document
> shows that 3 separate tests were performed that day: the first test lasted
> 52 seconds, during which 17 jigs were completed by the standard setter. The
> second test lasted 47 seconds, during which 15 jigs were completed. The
> third test lasted 59 seconds, during which 20 jigs were completed by a
> supervisor. Arithmetic calculations are then shown on the exhibit, showing
> how three tests lasting less than one minute were extrapolated to determine
> a 1-hour production standard.
> Exhibit C-2 is a record of tests performed by standard setters on
> December 16, 2015. Each of the 2 tests performed on December 16, 2015,
> lasted about 10 minutes. Again, arithmetic calculations were made to
> extrapolate the results of this 10-minute test to a 1-hour production
> standard.
> Of particular note when comparing Exhibits C-1 and C-2 is the dramatic
> difference in performance by the standard setters. On September 30, 2013
> (Exhibit C-1), supervisor Laurie Fretz produced 20 jigs in 59 seconds
> during the third test reported on that Exhibit. On December 16, 2015
> (Exhibit C-2), Ms. Fretz produced 26 jigs per minute during the second
> reported test. Ms. Fretz was thus measured to be producing about 360 more
> jigs per hour in 2015 than she had produced in 2013. Nothing on the Creform
> line had changed during this time, nor had the method of production
> changed. These tests have a direct and substantial impact on calculation of
> the hourly wage paid to the Petitioners.
>
> Ms. Fretz testified:
>
> JUDGE BELL: Can you-does the difference between 1,114 jigs per hour
> and 1,607 jigs per hour seem to you like a big difference?
>
>
> THE WITNESS: Not really, being more familiar on the line-I worked at a
> steady pace, like I was always taught to do.
>
>
> JUDGE BELL: Okay.
>
>
> THE WITNESS: And the pace that I could work at all day.
>
>
> JUDGE BELL: Do you have an understanding of what the effect is on the
> rate of pay for the Petitioners when the standard of production moves
> from 1,114 jigs per hour to 1,607 jigs per hour?
>
>
> THE WITNESS: Yes, the standard is raised.
>
>
> JUDGE BELL: And what happens to their pay?
>
>
> THE WITNESS: It depends on how they do on the line.
>
>
> JUDGE BELL: Assuming that their pay [rate] remains constant, what's
> the effect of the production standard going up?
>
>
> THE WITNESS: It would decrease.
>
>
> JUDGE BELL: So as the production standard goes up, assuming the
> Petitioners' performance remains level, their hourly pay goes down;
> correct?
>
>
> THE WITNESS: Yes.78
>
> VII. THE WITNESSES AT THE HEARING
>
> Each of the Petitioners testified at the hearing. I find the
> testimony of the Petitioners to be substantially supported by the
> documentary evidence in the record. They were credible, and I accept nearly
> all of their testimony.
> Both parties called Rodney Biggert in their respective cases-in-
> chief. I believe Mr. Biggert is dedicated to the mission of Respondent.
> There were areas of Mr. Biggert's testimony that I believe to be lower
> probative value - such as his observations of the Petitioners as they work
> on the Creform line79-and which I do not fully accept.
> Laurie Fretz and Terry Stocker were called by Respondent. Both are
> supervisors employed by Respondent. Their testimony was consistent with the
> record, and both were entirely credible. The record should reflect my
> thanks to Ms. Fretz for guiding counsel and the Court on our tour of the
> Fostoria manufacturing facility. This was most helpful.
> Three experts appeared at the hearing. Petitioners called Dr. Fredric
> K. Schroeder in their case-in-chief. Dr. Schroeder has his Ph.D. in
> Education Administration and Supervision from the University of New Mexico,
> and since 2014, has been the executive director of the National
> Rehabilitation Association. He is also a Research Professor at San Diego
> State University. From 1994 to 2001, Dr. Schroeder served as Commissioner
> of the Rehabilitation Services Administration of the U.S. Department of
> Education. Dr. Schroeder's complete Curriculum Vitae is in the record as
> Petitioner's Exhibit 1. Dr. Schroeder's Expert Report (Petitioner's Exhibit
> 2) concludes that none of the Petitioners "meet the definition of 'worker
> with a disability' as required by Section 14(c) of the FLSA to be paid
> under a special wage certificate."80
> I am concerned that the Petitioners and Dr. Schroeder seem to have
> markedly different recollections of the length and quality of Dr.
> Schroeder's interviews of them. Dr. Schroeder described an elaborate
> interview and information gathering process undertaken in preparation of
> his expert report:
>
> Q. And the interview itself, when and where did that happen?
>
>
> A. It took place in-here in Tiffin. It was over a Friday and
> Saturday. I'm thinking it was the first weekend of June 2015. So it
> was about a day-and-a-half-long process.
>
>
> Q. Would the weekend of the 12th and the 13th of June be the
> appropriate one?
>
>
> A. Yes, that sounds correct.
>
>
> Q. And how much time did you spend with these individuals?
>
>
> A. I would say the interview with each individual took in the
> neighborhood of 90 minutes, give or take 10 or 15 minutes, but about
> 90 minutes. It was a little longer than I would normally do in an
> initial vocational evaluation, but you don't want to go into so much
> detail that you end up kind of exhausting the individual with whom
> you're speaking. So I would estimate 90 minutes each and then there
> was some time when I had a general conversation with them as a
> group.81
>
> Each of the Petitioners has a markedly different recollection of the
> amount of time they spent with Dr. Schroeder. Ms. Steward's testimony is
> representative of that offered by the Petitioners on this subject:
>
> Q. Okay. How many times did you talk to [Dr. Schroeder], do you
> know?
>
>
> A. Maybe a couple times.
>
>
> Q. Did you meet him in person or on the phone?
>
>
> A. In person, I believe.
>
>
> Q. Okay, a couple times in person?
>
>
> A. Yeah.
>
>
> Q. That was in June?
>
>
> A. Yes.
>
>
> Q. Was that the only time you've ever met Dr. Schroeder?
>
>
> A. I don't recall. Maybe. Yeah.
>
>
> Q. Have you talked to him since June?
>
>
> A. I don't recall that, either.
>
>
> Q. Okay. And how long did you talk to him?
>
>
> A. Probably not too long.
>
>
> Q. Okay. Can you give me a time frame, 10 minutes, 20 minutes, an
> hour?
>
>
> A. Maybe about 10 minutes.
>
>
> Q. Maybe 10 minutes, okay. Did he ask you questions?
>
>
> A. Yes, but I don't recall what those questions were.
>
>
> Q. Okay. Now, you met alone with him for 10 minutes or you only
> talked to him for 10 minutes in total?
>
>
> A. I think we were all there.
>
>
> Q. Okay. Did you ever meet with him alone?
>
>
> A. Not that I remember.
>
>
> Q. Okay. And I think you said you can't recall anything you talked
> about.
>
>
> A. No, I'm sorry. No.
>
>
> Q. You didn't tell him about any of your prior jobs?
>
>
> A. I don't recall that, either.82
>
> On this subject, I credit the Petitioners' collective recollections
> over that of Dr. Schroeder, and I do find Dr. Schroeder's credibility
> diminished. As a consequence of my doubts whether Dr. Schroeder really
> gathered sufficient information to support his opinions about whether the
> Petitioners are impaired for the work they perform at Fostoria, I discount
> much of his testimony pursuant to Evidence Rule 702(b).
> Dr. Schroeder also offered testimony about the impact of disability
> of the actual performance of work. He also testified about the perceptions
> of disability, and how those perceptions color our views about the work
> performed by the disabled. I find these assessments to be largely
> unaffected by any question I may have as to the quality of his interviews
> of Petitioners, and I do not discount Dr. Schroeder's opinions in these
> areas.
> Petitioners also called Dr. Robert Cimera. Dr. Cimera has his Ph.D.
> in Special Education from the University of Illinois, with an emphasis on
> school-to-work transition. He is a professor at Kent State University, and
> has published extensively in the areas of the economics of vocational
> programs and the employment of persons with disabilities. Dr. Cimera did a
> thorough analysis of the Petitioners' employment and pay records, and
> raised a number of serious questions about the accuracy and consistency of
> the calculations made by Respondent which affected the pay received by
> Petitioners. Dr. Cimera was candid and credible. His testimony was somewhat
> affected by the fact that additional documents were produced after he had
> published his expert report, and these additional documents may have
> affected some of his conclusions.83 I find Dr. Cimera to be qualified as an
> expert on the payment of wages to the Petitioners. However, much of Dr.
> Cimera's "scientific, technical, or other specialized knowledge" was of
> little help to me in understanding the evidence or determining a fact in
> issue.84
> Respondent called Mark Knuckles as an expert. Mr. Knuckles was
> formerly employed by the Wage and Hour Division of the U.S. Department of
> Labor, where he was a specialist in compliance issues involving Section
> 14(c) of the Fair Labor Standards Act. Since 1986, Mr. Knuckles has
> operated Mark Knuckles Associates in Hickory, North Carolina. Mark Knuckles
> Associates provides advice and assistance on compliance with the Fair Labor
> Standards Act, with a particular emphasis on Section 14(c) Certificates. By
> virtue of his deep experience in the subject area, I find Mr. Knuckles to
> be qualified as an expert generally on compliance with Section 14(c).
> After Petitioners filed this matter, Mr. Knuckles was retained by
> Respondent to review Respondent's compliance with Section 14(c). Mr.
> Knuckles also performed standard setter testing and testing of the
> Petitioners on the Creform line. While I find Mr. Knuckles to be
> knowledgeable about Section 14(c) in general, I have difficulty considering
> him as an expert when he testified about the Creform line production
> studies performed at Fostoria. I largely discount Mr. Knuckles' opinions
> about the Creform production tests for the following three reasons: (1) The
> production studies themselves involve (a) starting a stopwatch, and (b)
> counting how many jigs pass a given point in a given amount of time, and
> (c) performing a few simple calculations to determine how many jigs per
> hour are being produced by the person being tested. I do not believe this
> aspect of Mr. Knuckles' testimony should be considered as "expert" under
> Evidence Rule 702(a) as I do not believe it involves "scientific,
> technical, or other specialized knowledge"; (2) The wide variances in the
> results of the Creform line production tests causes me to believe that
> either the testing is not based upon "reliable principles and methods" in
> violation of Evidence Rule 702(c), or Mr. Knuckles has not "reliably
> applied the principles and methods to the facts of the case" in violation
> of Evidence Rule 702(d). I simply cannot reconcile how Ms. Fretz
> participated in standard setter tests which produced 1,114 jigs/hour in a
> 2013 test which Respondent considered to be reliable,85 and was then
> inexplicably86 able to produce 1,607 jigs/hour in an 2015 test also
> considered to be reliable87; and (3) there is no data accurately describing
> how many of the performance tests administered to the Petitioners were
> actually done. Any testimony about these tests cannot possibly be "based
> upon sufficient facts or data," and is thus not admissible under Evidence
> Rule 702(b).
>
> VIII. RESPONDENT IS SUBJECT TO THE ACT
>
> In its post-hearing brief, Respondent raises-for the first time-the
> argument that "[p]etitioners failed to allege or prove that Respondent is
> engaged in interstate commerce." I note the coyness with which this
> argument is posited: Respondent (which would be subject to sanctions under
> Rule 18.35(b) of the Rules of Practice of the Office of Administrative Law
> Judges for the knowing assertion of an untrue fact) never says that it is
> not subject to the Act. It only claims that Petitioners "failed to allege
> or prove" that Respondent is engaged in interstate commerce.
> As noted earlier, I had the opportunity to visit the Fostoria
> manufacturing facility where the Petitioners are employed. While there, I
> saw product coming into the plant, the kind of work being performed with
> that product, and the volume of finished product being produced. The
> Respondents spent much of their time producing product related to the sale
> of rubber flooring and moldings. These are construction materials. Given
> the testimony of the Petitioners and the witnesses who supervise the work
> at the Fostoria manufacturing facility, and given my own observations of
> the type and volume of work occurring in Fostoria,88 and given my
> observations about the lack of new construction in either Tiffin (where the
> hearing was held) or Fostoria (where the Petitioners work), it strains
> credulity that all the construction materials being shipped day after day
> from the Fostoria work site are remaining in this state.
> If Respondent truly believes that it is not engaged in interstate
> commerce, and thus not subject to the Act, and if Respondent truly believes
> that I had no jurisdiction whatsoever to schedule or conduct a week-long
> hearing costing the parties tens (or hundreds) of thousands of dollars,
> then I certainly would have expected Respondent to have mentioned such a
> claim during our initial case management conference or at the weeklong
> hearing. Had the issue been raised during that prehearing conference,89 I
> would have requested full briefing of the matter before the hearing ever
> commenced. Had I decided to proceed with the hearing, Respondent would then
> have had a full opportunity to adduce all of the evidence needed for me to
> make an informed decision on this matter. Instead, I have only the shadow
> of an argument raised for the first time after the record has been closed.
> I hold Respondent entirely at fault for depriving me of the opportunity to
> review a fully developed factual record that would either support or refute
> the claim (never actually made90) that Respondent is not subject to the
> Act.
> There is no "pleading" requirement in this case.91 The regulations
> governing petitions seeking review of special minimum wages states
> explicitly: "[n]o particular form of petition is required, except that a
> petition must be signed by the individual, or the parent or guardian of the
> individual, and should contain the name and address of the employee and the
> name and address of the employee's employer."92 It is thus abundantly clear
> that Petitioners were not required to "plead" any jurisdictional
> prerequisites when submitting their petition.
> The evidence at the hearing was that Respondent repeatedly applied for
> Section 14(c) Certificates so that Respondent might pay commensurate wages
> to the Petitioners and their co-workers, and to thereby comply with the
> Act. Each of the applications signed by Mr. Biggert contains a
> "Representation and Written Assurance" that Respondent's "operations are
> and will continue to be in compliance with the FLSA."93
> The Section 14(c) Certificates issued by the Department of Labor
> require Respondent to pay special wages only in compliance with the Act.94
> Soon after the petition in this matter was filed, Respondent retained
> the consulting services of Mr. Knuckles-who was valued for his expertise in
> maintaining compliance with the Act. Mr. Knuckles' expert report states
> that he was retained "to provide a professional opinion regarding the
> Respondent's compliance with the Fair Labor Standards Act."95 At the very
> outset of his analysis, Knuckles assumes:
>
> The workers of the Respondent are engaged in interstate commerce and
> subject to the Fair Labor Standards Act, FLSA, each week, in that they
> manufacture, process, package, or otherwise handle goods moving in
> interstate commerce or their work is closely related and directly
> essential to the movement of those goods and products in interstate
> commerce.96
>
> In the very first sentence of his expert report, Mr. Knuckles states
> that he was retained by counsel for Respondent, and it thus seems
> exceedingly improbable that Mr. Knuckles' observations as to the
> applicability of the Act were not flyspecked by counsel prior to being
> included in an expert report. I am constrained to conclude that the
> discussion of the Act in Mr. Knuckles' expert report fairly states the real
> position of Respondent.
> Respondent rested its case without presenting any facts by which I
> could determine whether Respondent is subject to the Act. In light of the
> pleading requirements in 29 C.F.R. § 525.22(a), and the "informality"
> requirements of §522.22(c), I conclude that Respondent had the burden to go
> forward with any such evidence.
> Based upon the state of the record, I conclude that the Act applies
> to Respondent.
>
> IX. PETITIONERS ARE NOT IMPAIRED FOR THE WORK BEING PERFORMED
>
> The regulations implementing Section 214(c) of the Act provide:
>
> An individual whose earning or productive capacity is not impaired for
> the work being performed cannot be employed under a certificate issued
> pursuant to this part and must be paid at least the applicable minimum
> wage.97
>
> I construe the regulation in the following manner: in order to be
> eligible to be paid a special minimum wage, an individual must have a (1)
> diagnosed impairment (2) having signs or symptoms (3) which, when supported
> by a fair assessment of objective evidence, can be said to consistently
> suppress the wage earning capacity of the individual (4) when the
> individual is performing a specific job involving a specific set of tasks.
> By way of example: an individual with a diagnosed impairment causing
> diminished strength in the hands might be disabled for work involving the
> assembly of parts by hand, but would likely not be disabled for operating a
> machine which is operated only by the use of foot controls. I construe the
> regulation to require proof of a clear nexus between the diagnosed
> impairment and the impact of that impairment on the actual work tasks being
> performed in order to justify the payment of a special minimum wage.
> Respondent offers two types of evidence in support of its belief that
> Petitioners are "impaired for the work being performed" on the Creform
> line: (1) observations of the Petitioners' work habits when they are
> working on the Creform line, and (2) the number of jigs produced by
> Petitioners per hour when they have been tested as part of setting their
> individual hourly pay rate.
> As to the first category of evidence-observations of the Petitioners
> at work-several witnesses offered their views. One such observation of
> Petitioners was made by the Respondent's witness, Mark Knuckles:
>
> During my observation of the work at Respondent and that
> performed by the Petitioners, I observed several factors with the
> Petitioners that would account for below standard productivity, such
> as going off task when work was waiting for them, watching other
> workers and staff instead of working, getting up and leaving the work
> station during production, not following the prescribed work method,
> and attempting to work too fast and making mistakes.98
>
> Later, Mr. Knuckles summarizes his opinion:
>
> [T]he below standard productivity of the Petitioners can only be attributed
> to the off-task behaviors, lack of focus, not following the prescribed work
> method, trying to go too fast, and leaving the work station, all common
> behaviors I observed.99
>
> Mr. Biggert also testified as to his observations of the Petitioners' work
> habits. As to Ms. Steward:
>
> [S]he has a hard time keeping pace. Sometimes it is learning a new
> task and the training of a new task that we get in can be difficult.
> In some instances there's a bit of retraining that needs to be done.
> Her ability to follow directions can sometimes be hindered. We've had
> instances where she's tried to place two or three pieces into a punch
> or a drill at a time to try to speed up her own pace. But the machine
> will only take, you know, won't take three at a time as far as
> impairing the quality of the product, you know, and needs the reminder
> from staff to stay on task and do those tasks the way they're
> prescribed.
>
> Q. And based on your experience you think that that's a product of
> her disability?
>
>
> A. Yes, I do.100
>
>
> Mr. Biggert testified about Mr. Felton's work:
>
>
> Q. Okay. Have you observed Mr. Felton at work?
>
>
> A. Yes, I have.
>
>
> Q. How often have you been able to observe him at work?
>
>
> A. Quite often. I mean, I'm over there at least one to two days a
> week.
>
>
> Q. Have you noticed anything that you would consider a
> manifestation of his limitations or diagnosis at work?
>
>
> A. Yes.
>
>
> Q. Like what?
>
>
> A. Sometimes a hard time following directions; sometimes obsessive
> components, which are commonly associated with Asperger's, where he
> may obsess on a peer or have an issue with another peer. You see his
> focus drift from his work to maybe an issue that he had last night or
> an issue he's having with someone specifically.
>
>
> Q. And how does that impact his productivity?
>
>
> A. Sometimes he'll walk away from his work station and completely-
> not just from his station but literally walk to the other side of the
> facility to check up and see on what somebody is doing or try to see
> what somebody is up to, and it may be focused on a conversation he had
> last night or any number of other factors.
>
>
> Q. Have you seen whether the staff attempt to redirect him in those
> instances?
>
>
> A. The staff do try to redirect him, yes.
>
>
> Q. Is this something that happens regularly or infrequently or
> what?
>
>
> A. It happens with some regularity.
>
>
> Q. Okay. Do you-based on what you know from being an SSA and Adult
> Services Director, do you make any connection between those behaviors
> and his diagnosis and limitations?
>
> A. Yes.101
>
> Mr. Biggert testified about Mr. Magers' work habits:
>
> I am able and other staff are able to observe some troubles that Joe
> will have from time to time in being able to discern between types of
> material, if he gets them reversed, or whether material is in a space
> or ready to be placed or has already been placed. He has a hard time
> discerning that a mistake has occurred and needs staff direction to
> help him with that.
>
>
> Q. Do you rank that to his disability of optic atrophy or vision
> impairment?
>
>
> A. Yes.
>
>
> JUDGE BELL: Can you describe for me what you mean when you say
> "difficult for him to tell whether a mistake has occurred"?
>
>
> THE WITNESS: In the case of maybe placing two of the samples onto a
> chain in the wrong order, he won't necessarily be able to tell that
> the pieces are in the wrong order, or in some cases I've witnessed him
> get confused as to whether he might have a couple of jigs in front of
> him and become confused as to whether he's put pieces on them yet or
> not and can't discern whether the job or that job task has been
> completed without assistance from staff.
>
> JUDGE BELL: Okay, thank you.
>
> BY MR. KESSLER:
>
> Q. Have you noticed-and I'm sorry, I was only half listening during
> your answer. Did you talk about whether he has difficulty telling
> colors apart?
>
>
> A. He can also have some difficulty with colors.
>
>
> Q. And if, for example, the chain gets knocked off the post, does
> that create any problems for him?
>
>
> A. It can create some problems for him. He can have some issues
> with getting it back on the post, or in the case that the post or the
> jig comes to him with the chain already off the post, he can sometimes
> have an issue noticing that it's off the post to begin with or have an
> issue with correcting it, and would need staff to assist him with
> that.102
>
> Laurie Fretz is the Division Manager at the Fostoria facility. She
> has contact with Petitioners on each day when they are working, and is in a
> good position to observe their work behavior. She testified about Mr.
> Magers' work:
>
> Q. And for Mr. Magers, have you observed a vision impairment impact
> his productivity?
>
>
> A. Yes.
>
>
> Q. And have you seen him have problems on Creform line?
>
>
> A. Yes, at times. He has to feel for the pieces, the holes, and
> then put them on the jig. There was a time when we just did the last
> time study where he put some pieces on-I'm not sure why he took them
> off, but when he took them off, the chain came off, and he dropped a
> piece and he asked staff for assistance to put it back on, and he
> asked from time to time.
>
>
> Q. And do you know what he asks for from time to time?
>
>
> A. If he needs help with something. Sometimes he might ask if, you
> know, if he may have taken a color out and put it in the wrong tub or
> something like that.103
>
> Ms. Fretz testified about Mr. Felton:
>
> Q. Okay. And for Mr. Felton, have you observed whether his
> disabilities impaired his productivity?
>
>
> A. Yes.
>
>
> Q. And how would you describe his ability to stay on task?
>
>
> A. Sometimes it's not good. Sometimes he has a hard time paying
> attention. He'll walk away from his work station. One of the last ones
> that I observed was during a-the time study that we did. He picked the
> jig up and walked to the other end of the line where Pam was and said
> something to her, and then walked over and put it on the table, which
> was holding everybody else up on the line because he had walked away.
>
>
> Q. Does he often walk away from his work station?
>
>
> A. It depends on the day. If he's upset, he walks away a lot, goes
> to the restroom a lot.
>
>
> Q. You answered part-what does he do when he walks away?
>
>
> A. Usually he can-it's usually-well, it depends. He might go, you
> know, talk to somebody or-which they're allowed to talk, but usually
> he'll like go to like the other end to talk to somebody or-I don't
> know. I don't know, it's hard to explain. When you're on the line, if
> he's on one end and he leaves to go make conversation with somebody,
> then that holds up the line. It stops the line. The people beside him
> can't push jigs down and then nobody can have work that's on the other
> side.
>
>
> Q. And the times that you have seen him walk away, I mean, does he
> walk away to go to the bathroom?
>
>
> A. Yes.
>
>
> Q. There's nothing wrong with that?
>
>
> A. No.
>
>
> Q. Does he walk away to get a drink of water?
>
>
> A. Yes. Usually if they go to the restroom or want a drink of water
> or whatever, they'll tell staff, then staff will cover for them.
>
>
> Q. And that's normal?
>
>
> A. Yes.
>
>
> Q. And that's not an issue, that's not what you're addressing when
> he walks away from the line?
>
>
> A. No.
>
>
> Q. Okay. How would you describe his ability to follow directions?
>
>
> A. Sometimes he has a hard time accepting direction from staff.
>
>
> Q. And what happens-what does he do?
>
>
> A. Sometimes he can become upset, belligerent, disrespectful to
> staff, and he's hard to calm down at times.
>
>
> Q. Have you observed that on any particular job or any-that's two
> questions. Have you observed that on any particular job that he's
> working on?
>
>
> A. It could be on any job actually. It depends. He could be upset,
> not because of the job, maybe because of a peer or, you know, a staff
> asked him to return to his work station if he's over making
> conversation with somebody.
>
>
> Q. I think you said he gets upset.
>
>
> A. Yes.
>
>
> Q. And when was the last time he got upset?
>
>
> A. It was the week before Christmas break. Another peer came to me
> and said that he didn't want to work on the line where Mark was
> because Mark had left a message on his cell phone and was saying some
> inappropriate things and using vulgar language about his girlfriend,
> and he let me listen to it and it was Mark's voice, and I said okay,
> so I let him work in Building 1. And in the meantime, Anita had-which
> is Mark's boss-had came to me and said that Mark had went off task and
> he was in the restroom crying and after their break, which was 10:30,
> Mark and Pam came to me and asked me to help resolve the situation,
> which I already knew what was going on, so I asked the peer if he
> wanted to talk to them, and he said yes. And Mark apologized and they
> made up, and he lost about two hours of work over the whole
> situation.104
>
> Ms. Fretz testified about Ms. Steward:
>
> Q. Okay. For Ms. Steward, have you observed whether her
> disabilities impair her productivity?
>
>
> A. Yes.
>
>
> Q. Have you seen her have problems with manual pad print?
>
>
> A. Yes, there's been some times-she's been trained on the job.
> Sometimes she'll get going too fast and pass bad pieces, not having in
> the insta-guide. Then when it stamps, it's crooked. Just not checking
> the pieces and then they have to be scrapped.
>
>
> Q. Have you had issues with her on any other jobs?
>
>
> A. She's not near the standard on some of the other jobs, although
> the saw, she does very well on. She's one of the best ones that we
> have to cut the tread.
>
>
> Q. And do you try to put her on the saw for that reason?
>
>
> A. Yes, but we don't have-we don't-I have to follow what the
> customers want and I don't always have the tread to saw.
>
>
> Q. You may not have the job available every day?
>
>
> A. Correct.
>
>
> Q. And that wouldn't be limited to Ms. Steward?
>
>
> A. No.
>
>
> Q. Nobody else would do the job that day?
>
>
> A. No. If there's no material, there's nothing to do.
>
>
> Q. Has Ms. Steward ever refused to do a job?
>
>
> A. Yes.
>
>
> Q. And what was that?
>
>
> A. Actually the sawing job, I asked her to do it-it was either the
> week before our break or the week before that-and it actually kind of
> shocked me that she said no, but I usually don't ask why, I just ask
> somebody else to do it.
>
> Q. Is that typical for her?
>
>
> A. Not usually, no. That's why I was kind of shocked that she
> refused to do it.105
>
> On balance, I find the foregoing observations to be of little to no
> help when I am deciding whether Petitioners are disabled for the work
> performed at Fostoria. By the time Mr. Knuckles first observed Petitioners
> at work, this proceeding was underway, and Mr. Knuckles had been enlisted
> as a witness for Respondent. That business relationship could not help but
> color Mr. Knuckles' observations of the Petitioners. Additionally, Mr.
> Knuckles had only a very limited amount of time in which to observe
> Petitioners at work. From the testimony he offered at the hearing, he was
> performing all sorts of tests and measurements during his brief time in
> Fostoria, and his opportunity to gather anything more than anecdotal
> information about the job performance of the Petitioners is questionable.
> Nor does Mr. Knuckles have medical, psychological or other specialized
> training which would permit him to draw meaningful conclusions about how
> Mr. Magers' visual impairment actually affects his workplace performance,
> or how Ms. Steward's intellectual disability actually limits her when she
> is performing work, or how Mr. Felton's disability allows him to possess a
> driver's license, but does not permit him to place pieces of flooring on a
> metal spindle as quickly as someone else. It is not clear whether Mr.
> Knuckles was able to see Petitioners working anywhere other than the
> Creform line. Mr. Knuckles' testimony about Petitioners' work performance
> is not persuasive.
> I discount almost entirely Mr. Biggert's observations of Petitioners
> at work. Mr. Biggert testified that he was only in the Fostoria
> manufacturing facility one or two times per week.106 Presumably he was not
> there to watch the Petitioners perform their jobs. Approximately 80 people
> work in Fostoria. I do not believe Mr. Biggert was ever in a position
> before the initiation of this proceeding to make the kind of detailed
> observations of Petitioners over a long enough period of time that his
> testimony describes the consistently applicable work characteristics of the
> Petitioners. As is the case with Mr. Knuckles, I greatly discount any
> observations of Petitioners after the initiation of this case. I find that
> the objectivity of observation demanded when applying §214(c) is
> compromised once high-stakes litigation is underway. Mr. Biggert's
> testimony about the Petitioners in not persuasive.
> Ms. Fretz' observations are generally anecdotal, and do not present a
> longitudinal explanation of how the Petitioners' acknowledged disabilities
> have affected their work performance over the lengthy time she has watched
> the Petitioners at work. She admits that her snapshot observations of Ms.
> Steward, in part, are "not typical" of Ms. Steward's actual job
> performance.107 Her observations of Mr. Felton's holiday meltdown 108 do
> not inform me of how Mr. Felton's disabilities consistently affect his job
> performance.
> For his part, Mr. Felton flatly denies the observations that he
> "lacks focus" while working on the line:
>
> Q. Okay. Do you remember with any of the time studies that was done
> whether you got up and walked away from the line while you were being
> tested?
>
>
> A. No.
>
>
> Q. You don't recall or you didn't?
>
>
> A. I didn't.
>
>
> Q. Do you recall if you ever lost focus on what you were doing?
>
>
> A. No.109
>
> It is not necessary for me to resolve the specific dispute between
> Mr. Felton's view of his workplace behavior and that of his supervisors.
> After observing all of the witnesses as they testified, and after
> evaluating their credibility, I am not persuaded that the observations of
> the Petitioners made by Mr. Knuckles, Mr. Biggert and Ms. Fretz establishes
> that they are disabled for the work performed by them at Fostoria. Instead,
> it seemed as though a scripted narrative was being played out.
> I had the opportunity to visit the Fostoria facility while production
> on the Creform line was ongoing. I also had the chance to view many of the
> jobs in Fostoria which are paid on a piece-rate basis. The jobs being
> performed by Petitioners are simple and straightforward. The jobs have been
> designed so they might be performed by persons with all different types of
> disabilities. Watching actual production take place on the Creform line did
> not help me to understand in the least why Petitioners' respective
> impairments might slow them. The same can be said for the piece-rate work I
> was able to observe. There is nothing about the work itself which would
> inherently favor production rates by a non-disabled person over the
> production rate of an individual with one or more disabilities.
> Lastly, I had the unique opportunity to observe each of the
> Petitioners while each was on the witness stand and to thereby make a
> credibility determination. Equally important, I was able to carefully
> observe Petitioners as they sat in the courtroom during more than 30 hours
> of testimony. I was able to evaluate the Petitioners as they entered and
> left the courtroom, as they interacted among themselves and with the other
> people in the courtroom. In the compact downtown of Tiffin, Ohio, I even
> occasionally saw the Petitioners as they arrived at the courthouse or went
> to lunch, or as they waited for rides at the end of the day. Mr. Magers'
> visual impairment did not interfere with his ability to be a full
> participant in the courtroom activities. Mr. Felton did not have any
> emotional outburst such as that described by Ms. Fretz. Ms. Steward seemed
> to have no difficulty seeing what was happening in the courtroom or
> understanding the sometimes complex testimony.
> Respondent next argues that I should consider the Petitioner's
> individual hourly production rates when determining whether they are
> "impaired for the work being performed" on the Creform line.110
> At the outset of this analysis, I note my significant reservations
> about the quality of the production data maintained by Respondent. These
> reservations are discussed in detail in Section X of this Decision and
> Order.
> I have carefully reviewed the hourly production on the Creform line of
> each Petitioner.111 It is undeniably true that the Petitioners have never
> produced on the Creform line at the production standard which was in effect
> at the time the testing took place.112 However, I have no medical,
> psychological or other evidence in the record which explains (in a cause-
> and-effect manner) why this is so. On the record now before me, it would be
> pure speculation to conclude that the Petitioners don't meet the production
> standards solely or primarily because of their respective disabilities. It
> is just as likely they don't meet the production standards because they are
> bored with a highly repetitive task they have performed on a hundred prior
> occasions, or because they lack a substantial economic impetus to perform
> at a higher level,113 or because they self-identify as individuals whose
> performance should be lower than their non-disabled supervisors. I find
> there to be no proof in the record that Petitioners are intrinsically
> incapable of performing at the level of their non-disabled supervisors
> because of Petitioner's visual impairments, intellectual disability or
> Asperger's disorder. No such causal relationship has been persuasively
> demonstrated.
> When Mark Knuckles measured the Creform line production rates of Mark
> Felton and Joe Magers in December 2015, he obtained the following results:
> Mr. Felton was able to produce at the rate of 1,029 jigs per hour in test
> number 2.114 Mr. Magers was able to produce at the rate of 978 jigs per
> hour in one test, and 816 jigs per hour in a second test.115 These measured
> production rates are above (and in some cases well above) the rate of
> production established by the non-disabled standard setter in 2010, and
> above the standard units per hour measure that was in place for all Creform
> line workers between 2010 and 2013.116 Nothing about the Creform line
> process changed between 2010 and 2015. The fact that the Petitioners were
> able to meet-and exceed-what had been the production standard set by a non-
> disabled supervisor contradicts the inference that Petitioners work
> performance numbers establishes that they are disabled for the work
> performed.
> The same is true for piece-rate work. When performing jobs paid on a
> piece-rate basis, each of the Petitioners occasionally has been able to
> earn more than minimum wage. I believe this fact directly refutes the
> conclusion that the Petitioners are disabled for the work they perform in
> Fostoria. As noted above, Mark Felton was able to earn more than $14.00 per
> hour on the Click 5 machine.117 Joe Magers was able to earn nearly $9.00
> per hour on a piece-rate job called "Affix Screw and Remove."118 Pamela
> Steward was able to earn $11.84 per hour on a drill press.119 Based upon my
> observation of these jobs during the visit to the Fostoria facility, these
> other jobs seem comparable to the Creform line in terms of skill level. The
> fact that Petitioners have been able to exceed minimum wage in piece-work
> jobs of similar complexity to the Creform line effectively rebuts the
> notion that Petitioners are disabled for the work performed by them.
> After making my own observations of the production processes in the
> Fostoria manufacturing facility, and after making my own observations about
> the practical impact of the Petitioners' disabilities on their public
> lives, I conclude that while each of the Petitioners unquestionably has one
> or more disabilities, those disabilities should not, and do not, impair any
> of the Petitioners from performing any of the jobs in Petitioner's Fostoria
> facility. I conclude that Respondent has not had in the past, and does not
> now have, the legal ability to employ any of the Petitioners under a
> Section 14(c) Certificate, and that each of the Petitioners has been, and
> is now, entitled to earn at least minimum wage when working in the Fostoria
> manufacturing facility. For these reasons, I find Respondent has not paid
> Petitioners the minimum wage to which Petitioners have been entitled, and
> that Respondent has thus violated §206 of the Act.
>
> X. RESPONDENT HAS FAILED TO PROVE THE PROPRIETY OF THE WAGES PAID
>
> The Regulations implementing Section 214(c) of the Act provide:
>
>
> In determining whether any special minimum wage rate is
> justified, the ALJ [administrative law judge] shall consider, to the
> extent evidence is available, the productivity of the employee or
> employees identified in the petition and the conditions under which
> such productivity was measured, and the productivity of other
> employees performing work of essentially the same type and quality for
> other employers in the same vicinity and the conditions under which
> such productivity was measured. In these proceedings, the burden of
> proof on all matters related to the propriety of a wage at issue shall
> rest with the employer.120
>
> I conclude Respondent has failed to demonstrate by a preponderance of
> the evidence that the wages actually paid to Petitioners during the
> relevant period have been properly calculated. The following are examples
> of the significant shortcomings of the Respondent's calculations:
>
> (1) Over the past four years, the hourly production standard set by non-
> disabled supervisors acting as "standard setters" on the Creform line has
> increased from 816 to 1,607 jigs per hour. No explanation for this 100
> percent increase in performance was offered at the hearing. No changes to
> the method of production on the Creform line occurred during the time when
> this increase occurred. Mr. Knuckles testified that the rate of production
> of non-disabled workers should remain relatively constant over time:
>
> Q. So all three, Pam, Mark and Joe, who have very different
> disabilities, all consistently performed higher at piece rate jobs than on
> the hourly jobs, is that right?
>
>
> A. That's correct.
>
>
> Q. Different disabilities?
>
>
> A. Correct. It's not unusual; very common.
>
>
> Q. Yeah. Among people with disabilities there's huge variations in
> ability, how they're going to do all of these different types of jobs,
> right? Is there, in your experience, variation in the abilities of
> folks without disabilities to perform these types of jobs?
>
>
> A. To perform these types of jobs?
>
>
> Q. Yes.
>
>
> A. I wouldn't think that they-without disabilities there would be-I
> haven't done any studies of people doing these types of jobs. These
> are different jobs than you would find out in industry, typically. But
> would we find differences? There would be some differences, yes, but
> generally not as much.121
>
> The variability in the performance results of the same non-disabled
> person (Laurie Fretz) performing the same test over a 2-year span is quite
> large. The establishment of this production standard was of critical
> importance to the calculation of the Petitioner's weekly wages. The
> unexplained 100 percent variance in the production rate of the standard
> setters convinces me that the numbers have not been properly derived from
> any defined professional methodology, and are, in fact, arbitrary.
>
> (2) Respondent presented no evidence about how the 816 jigs per hour
> standard was set in 2011. The hourly rate of the Petitioners was dependent
> upon that standard until October 2013. Without evidence which allows me to
> evaluate the methodology used to set the 816 jigs per hour standard, and in
> light of my serious concerns about how all other standards have been set
> and documented, I do not presume the 2011 test was properly done and/or
> properly documented. I cannot find Respondent has met its burden to prove
> the propriety of the wages paid prior to the 2013 performance standard
> test.
>
> (3) The establishment of the performance standard in 2013 was based upon
> a flawed methodology. As described in detail above, the 2013 performance
> standard122 was extrapolated from the results of testing which lasted less
> than one minute. The individual who performed this test acknowledged at the
> hearing that these intervals were too short to generate a valid study:
>
> Q. Okay. So when you made the decision-and I assume it was your
> decision, tell me if it wasn't-to run the first test here for 52
> seconds, did you believe that was an appropriately long period in
> order to be able to make a fair assessment of the standard setter's
> performance?
>
>
> THE WITNESS: In looking back, no.
>
>
> JUDGE BELL: Okay. So I assume you would say the same thing for 47
> seconds?
>
>
> THE WITNESS: Correct.
>
>
> JUDGE BELL: And the same thing for 59 seconds?
>
>
> THE WITNESS: Yes.123
>
> This flawed production standard played a pivotal role in calculating
> the amount of money paid to the Petitioners from October 2013 to January
> 2016. In light of the admission that these test results are flawed, the
> "propriety" of the wages paid to the Petitioners based upon that testing
> has not been established.
>
> (4) As noted above, when comparing Exhibits C-1 and C-2, there is a
> dramatic difference in performance by the standard setters. On September
> 30, 2013 (Exhibit C-1), supervisor Laurie Fretz produced 20 jigs in 59
> seconds during the third test reported on that Exhibit. On December 16,
> 2015 (Exhibit C-2), Ms. Fretz produced an average of 26 jigs per minute
> during the second reported test. Ms. Fretz was thus measured to be
> producing about 360 more jigs per hour in 2015 than she had produced in
> 2013. Nothing on the Creform line had changed during this time, nor had the
> method of production changed. These tests have a direct and substantial
> impact on calculation of the hourly wage to be paid to the Petitioners. The
> unexplained variance in the production rate of Ms. Fretz when acting as a
> standard setter convinces me that the production numbers have not been
> properly derived from any defined professional methodology, and are, in
> fact, largely arbitrary.
>
> (5) Respondent has a tolerance for wide variance in performance test
> results that I do not share, and which I do not believe generates
> information that should be admissible as evidence. Mr. Knuckles was asked
> about his tolerance for variability:
>
> JUDGE BELL: I'm sorry, did you run two different samples?
>
>
> THE WITNESS: Yes.
>
>
> JUDGE BELL: So the first sample he produced 717 units per hour and the
> second 1,028 units per hour?
>
>
> THE WITNESS: Yes.
>
>
> JUDGE BELL: And are those thought by you to be consistent?
>
>
> THE WITNESS: Consistent, yeah. Yes, they're good. Yes, these are good
> samples.
>
>
> JUDGE BELL: But they are 20-some percent-
>
>
> THE WITNESS: Yes. Well, while I was observing Mark, there's other
> factors in there. Mark would get up and move around, lose focus on the
> work. So that could explain the difference here.124
>
> Respondent seeks to admit the results of these performance tests
> through Mr. Knuckles to support Mr. Knuckles' opinion that the Petitioners
> are disabled for the work performed in the Fostoria manufacturing facility.
> Under the standard set forth in Daubert v. Merrell Dow Pharmaceuticals, I
> am constrained to take notice of the error rate when evaluating the
> admissibility of expert opinion:
> Additionally, in the case of a particular scientific technique, the
> court ordinarily should consider the known or potential rate of error, and
> the existence and maintenance of standards controlling the technique's
> operation.125
> Here, I believe the variances between the performance tests prevents
> them from being offered by Mr. Knuckles as evidence the Petitioners are
> disabled for the work performed by them.
>
> (6) The documentation of the Petitioner's performance tests on the
> Creform line contains inaccuracies. The majority of these forms incorrectly
> state the Petitioners were timed for a full one hour, when it is now clear
> that was not the case. Respondent cannot sustain its burden to prove the
> propriety of the wages paid without clear, accurate, contemporaneous
> records of what was done during these crucial performance tests.126
>
> (7) The fact that the Petitioners have occasionally been able to perform
> at minimum-wage levels when performing piece-rate work leads me to believe
> that the job testing on the Creform line systematically suppresses the
> volume of production of which each Petitioner is capable. No explanation
> has been offered as to why Petitioners allegedly perform so much better on
> some piece-rate work than they do on the Creform line. In the absence of an
> explanation, and for all the reasons stated above, Respondent has failed to
> demonstrate the "propriety" of the wages paid to Petitioners.
> For the reasons stated above, Respondent has failed to sustain its
> burden to prove the propriety of the wages paid to the Petitioners. Where,
> as here, the Respondent has failed to prove the propriety of the wages
> paid, the consequent failure of Respondent to pay minimum wage to the
> Petitioners constitutes a violation of §206 of the Act.127
>
> XI. DAMAGES
>
> Under 29 U.S.C. §216(b), employers who fail to pay minimum wage to
> their employees are liable to the affected employees for the amount of
> their unpaid minimum wages plus "an additional equal amount as liquidated
> damages."128 I have been supplied with approximately three years of
> detailed wage information for each Petitioner, and I have been asked to
> award each Petitioner the difference between minimum wage and what the
> Petitioner was actually paid by Respondent for that period.129 Petitioners
> have not asked me to award them liquidated damages, interest or attorney
> fees.
>
> A. The Statute of Limitations in §255 of the Act does not Apply
>
> Petitioners and Respondent are in agreement that §255 of the Act
> establishes a two-year statute of limitations for back pay claims absent
> willful violations of the Act, and they agree that statute of limitations
> is applicable to this case.130
>
> I disagree with the parties, and I find that the statute of
> limitations contained in 29 U.S.C. §255 is not applicable to this
> proceeding. The statute states:
>
> Any action commenced on or after May 14, 1947, to enforce any
> cause of action for unpaid minimum wages, unpaid overtime
> compensation, or liquidated damages, under the Fair Labor Standards
> Act of 1938 . . . may be commenced within two years after the cause of
> action accrued, and every such action shall be forever barred unless
> commenced within two years after the cause of action accrued, except
> that a cause of action arising out of a willful violation may be
> commenced within three years after the cause of action accrued;
>
> I find the matter before me is not an "action commenced . . . to
> enforce any cause of action for unpaid minimum wages, unpaid overtime
> compensation, or liquidated damages" under the Act. I find instead that
> this is a petition directed to the Secretary of Labor seeking to "obtain a
> review of such special minimum wage rate"131 being paid to the Petitioners.
> "Petitions" brought pursuant to §214(c)(5)(A) are clearly distinguishable
> from an "action commenced . . . to enforce any cause of action for unpaid
> minimum ages" in at least the following respects: (1) the §214(c)(5)(A)
> proceedings are conducted by Administrative Law Judges, not by the Article
> III judges who preside over the "actions" to which §255 applies; (2) the
> parties to the "actions" referenced in §255 seek to obtain conclusive
> judgments, while the object of "petitions" under
> §214(c)(5)(A) is to obtain the "final agency action" referenced in
> §214(c)(5)(E) and (F). I conclude that Section 255 refers and is applicable
> to lawsuits brought in an Article III court, and I further conclude that
> the statute of limitations contained in §214(c)(5)(E) does not apply to
> this administrative proceeding before the Secretary of Labor and his
> delegees.
> I further find that application of the statute of limitations in §255
> of the Act to the facts of this case would create an irreconcilable
> conflict with the regulations governing my calculation of damages:
>
> If the ALJ finds that the special minimum wage being paid or which has
> been paid is not justified, the order shall specify the lawful rate
> and the period of employment to which the rate is applicable. In the
> absence of evidence sufficient to support the conclusion that the
> proper wage should be less than the minimum wage, the ALJ shall order
> that the minimum wage be paid.132
>
> The plain reading of 29 C.F.R. §525.22(e) instructs me to determine
> the "period of employment" over which unpaid minimum wages are to be paid
> to the Petitioners. There is no reference in 29 C.F.R. §525.22(e) to the
> statute of limitations contained in §255 or the Act, or to any other
> temporal limitation on the calculation and award of back pay. I am thus
> constrained to calculate the "period of employment" without regard to the
> §255 statute of limitations.
> I further decline to import the statute of limitations contained in
> §255 of the Act because of significant problems which would arise if one
> attempted to apply the "willfulness" standard to matters brought under
> §214(c)(5)(A). The problems which would inevitably arise when attempting to
> apply the statute of limitations of §255 of the Act to petition actions
> commenced under §214 of the Act lead me to conclude that the authors of the
> Act did not intend the §255 statute of limitations to apply to §214
> petition matters.
> In McLaughlin v. Richland Shoe Co.,133 the word "willful" was given
> the following meaning:
>
> In 1965, the Secretary proposed a number of amendments to expand
> the coverage of the FLSA, including a proposal to replace the 2-year
> statute of limitations with a 3-year statute. The proposal was not
> adopted, but in 1966, for reasons that are not explained in the
> legislative history, Congress enacted the 3-year exception for willful
> violations.
>
> The fact that Congress did not simply extend the limitations period
> to three years, but instead adopted a two-tiered statute of limitations,
> makes it obvious that Congress intended to draw a significant distinction
> between ordinary violations and willful violations.
> In common usage the word "willful" is considered synonymous with such
> words as "voluntary," "deliberate," and "intentional." See Roget's
> International Thesaurus § 622.7, p. 479; § 653.9, p. 501 (4th ed.1977). The
> word "willful" is widely used in the law, and, although it has not by any
> means been given a perfectly consistent interpretation, it is generally
> understood to refer to conduct that is not merely negligent. The standard
> of willfulness that was adopted in Thurston-that the employer either knew
> or showed reckless disregard for the matter of whether its conduct was
> prohibited by the statute-is surely a fair reading of the plain language of
> the Act.134
> There is no question here that Respondent willfully did not pay
> minimum wage to the Petitioners. Instead, Respondent sought and obtained
> from the Department of Labor a series of Section 14(c) Certificates prior
> to paying Petitioners less than minimum wage for their labor. I find the
> notion of "willfulness" set forth §255 of the Act (and as defined in
> McLaughlin v. Richland Shoe) overlooks the explicit authorization in the
> Act for an employer to willfully pay employees less than minimum wage under
> certain circumstances. Importation of a willfulness standard to
> §214(c)(5)(A) proceedings is highly problematic, and it does not seem to me
> that Congress intended to apply the willfulness standard of §255 to
> petitions brought under §214(c)(5)(A).
> A willfulness standard is inconsistent with the special relationship
> between Petitioners and Respondent. Petitioners are not involved in
> competitive employment. While they are "employees" in the sense that they
> exchange their labor for compensation, they are simultaneously "clients" of
> the Seneca County Board of Developmental Disabilities when at work. While
> the immediate objective of the Petitioners may be to maximize their wages,
> the objectives of Respondent are not limited to the labor-for-compensation
> exchange. The overarching responsibility of Respondent is to provide
> rehabilitation services to each Petitioner. In the discharge of its
> overarching responsibility to provide services, Respondent willfully makes
> many workplace choices which dramatically suppress the ability of the
> Petitioners to earn wages. An example of such a choice-and of the tension
> between being an "employee" and a "client"-was discussed during Dr.
> Schroeder's testimony:
>
> JUDGE BELL: Each of the Petitioners testified yesterday that some
> portion of their workday, and I'm just going to say approximately an
> hour of each workday, is spent in nonproductive work, a social
> activity of some kind, an educational activity of some kind. Did you
> discuss that or are you aware of the fact that that's part of their
> daily schedule?
>
>
> THE WITNESS: Yes. And that's-yes,
>
>
> JUDGE BELL: And is that a hallmark of sheltered work?
>
>
> THE WITNESS: It's not uncommon. It's-in other words, it's not
> something that's necessarily designed in, that a shop must make
> allowance or would be expected to make allowance for social or
> recreational activities, but it's very common. And I mentioned earlier
> the idea of no sense of urgency. I think that's part of that whole
> mosaic in sheltered facilities.
>
>
> JUDGE BELL: I don't want to put words in your mouth. Can you
> extrapolate what you just said for me, please?
>
>
> THE WITNESS: Oh, all right. I'll do my best. In other words, in an
> ordinary work environment you don't have social activities as part of
> the workday. And where I'm going with this is one of the concerns
> about facilities is the mindset that the individuals who work there
> are not employees but clients, that they're recipients of services.
> And that's-that creates a very different set of expectations and a
> very different work environment. If you listen to self-advocates who
> have worked in segregated facilities, they talk about being treated
> like children, having their decisions managed.
> And I'm not-I don't-I'm not making any assertion about this
> particular facility and I'm not trying to disparage it, but I'm saying
> that the work environment is very often one of low expectations and
> not intentionally, not deliberately, but when you hear about extended
> break times, social activities, going on walks, these are not things
> that you would ordinarily have in the competitive work environment and
> it-so it sets a different climate, a different tone to the workday.135
>
> Respondent makes rehabilitation decisions which may have an adverse
> impact on the wages earned by Petitioners and their co-workers. These
> decisions by Respondent are clearly willful (as defined by the Court in
> McLaughlin). Application of the statute of limitations from §255 of the Act
> to such decisions by the employer does not seem to be what Congress
> intended in drafting the Act.
> Finally, I reject application of the willfulness standard of §255
> because I find it would impermissibly shift an important aspect of proving
> the "propriety of the wage" from the Respondent to the Petitioners in
> violation of 29 C.F.R. §525.22(d). In any case where a disabled employee
> brings her concerns about the propriety of wages paid to the Secretary, the
> regulations make it clear that "the burden of proof on all matters relating
> to the propriety of a wage at issue shall rest with the employer."136
> If the employee is asserting (as Petitioners do here) that wages
> going back more than two years were not properly paid, then requiring such
> employees to prove willfulness in order to evade the §255 statute of
> limitations would shift to the employee a burden of proof related to "the
> propriety of a wage at issue" in order to recover wages not properly paid
> beyond the second year. Requiring the employee to assume this burden of
> proof would not only violate the plain language of the regulation, but
> would add an additional burden to a disabled employee seeking only to
> vindicate his right to be paid a minimum wage. Many of those being paid
> special minimum wages under a Section 14(c) Certificate would be expected
> to have difficulty understanding how the wages paid to them for their labor
> have been calculated,137 and I conclude that it would be inconsistent with
> 29 C.F.R. §522(d) to require a petitioner to have the burden to prove
> willfulness simply in order to obtain a full recovery of the wages to which
> they are entitled. I believe the burden always remains on the employer to
> show the propriety of the wages paid in all years.
> For all of the reasons above, I conclude that the statute of
> limitations in §255 of the Act does not apply to this case. Therefore, I
> will provide Petitioners with an award of underpaid wages for the period
> December 28, 2012, to December 25, 2015, without requiring them to
> demonstrate willfulness.
>
> B. The Award of Back Pay to Petitioners is Appropriate
>
> The controlling regulation states:
>
> If the ALJ finds that the special minimum wage being paid or
> which has been paid is not justified, the order shall specify the
> lawful rate and the period of employment to which the rate is
> applicable. In the absence of evidence sufficient to support the
> conclusion that the proper wage should be less than the minimum wage,
> the ALJ shall order that the minimum wage be paid.138
>
> The plain language of the regulation requires me to make three
> findings in order to calculate the damages to be awarded to each of the
> Petitioners: (1) determine the amount of the hourly wage to be paid; and
> (2) determine the period of time over which the hourly wage determined in
> step (1) is to be paid; and (3) determine the applicable minimum wage for
> all periods in question.
> Consistent with the plain language of the regulation, I find each
> Petitioner should have been paid the then-applicable minimum wage for each
> hour of work performed at Respondent's Fostoria manufacturing facility
> during the period December 28, 2012, to December 25, 2015. I have chosen to
> award damages during this period because: (1) that is the only period for
> which I have detailed wage information for each of the Petitioners, and (2)
> I find Respondent failed to appropriately calculate the commensurate wage
> paid to each Petitioner during that entire period.
> I have determined that the minimum wage is to be paid during this
> period because I do not have sufficient credible evidence by which I can
> accurately calculate the proper wage to be paid. In order to make such a
> calculation, I would, at a minimum, need credible evidence establishing the
> rates of production for the Petitioners and the non-disabled standard
> setters. For the reasons discussed in detail above, I do not believe I can
> rely on the information in the record to establish an appropriate
> commensurate wage for each of the Petitioners. The regulation instructs
> that under such circumstances I am to determine that the minimum wage
> applies.
> I find that the Ohio minimum wage for the period December 28 to
> December 31, 2012, was $7.70 per hour. The Ohio minimum wage throughout
> 2013 was $7.85 per hour. The Ohio minimum wage throughout 2014 was $7.95
> per hour. The Ohio minimum wage throughout 2015 was $8.10 per hour.
> I find that the Petitioners are entitled to the minimum wage for every
> hour of covered employment. The minimum wage rate will therefore be applied
> to the three years of wage data supplied by the Petitioners to calculate
> their entitlement to remedial back pay.
> The following table outlines the Petitioners' hourly damages by
> year:139
>
> |PETITIONER |YEAR |TOTAL HOURS |COMMENSURATE |MINIMUM |TOTAL BACK |
> | | |WORKED |WAGE PAID |WAGE |PAY OWED140|
> |RALPH "JOE" |2012 |4.5 |$2.02 |$7.70 |$25.56 |
> |MAGERS | | | | | |
> | |2013 |290 |$2.52 |$7.85 |$1,545.72 |
> | |2014 |406.04 |$4.77 |$7.95 |$2,110.45 |
> | | | |$2.77 | | |
> | | | |$2.79 | | |
> | |2015 |564 |$2.94 |$8.10 |$2,881.61 |
> | | | |$3.00 | | |
> | | | |$3.15 | | |
> |TOTAL | | | | |$6,537.78 |
> |PAMELA STEWARD |2012 |2.5 |$2.00 |$7.70 |$14.25 |
> | |2013 |478 |$2.00 |$7.85 |$2,773.76 |
> | | | |$2.05 | | |
> | |2014 |303.5 |$3.20 |$7.95 |$1,438.22 |
> | | | |$3.22 | | |
> | |2015 |268.75 |$3.22 |$8.10 |$1,311.50 |
> |TOTAL | | | | |$5,537.73 |
> |MARK FELTON |2013 |173.75 |$2.49 |$7.85 |$921.01 |
> | | | |$2.55 | | |
> | |2014 |397.25 |$3.89 |$7.95 |$1,603.32 |
> | | | |$3.93 | | |
> | |2015 |421.5 |$3.93 |$8.10 |$1,682.84 |
> | | | |$4.11 | | |
> |TOTAL | | | | |$4,207.17 |
>
>
> I find the Respondent owes Petitioner Magers $6,537.78 in hourly back
> wages. Additionally, Exhibit A to Petitioners' Post-Hearing Brief
> establishes that Petitioner Magers was paid less than minimum wages for
> 633.75 hours of piece work in 2013, resulting in an underpayment of
> $1,445.29; 210.25 hours of piece work in 2014, resulting in an underpayment
> of $655.94; and 54.25 hours of piece work in 2015, resulting in an
> underpayment of $150.14. I find these piece work numbers to have been
> correctly calculated, and I adopt them as part of my Decision. Accordingly,
> in sum, Petitioner Magers is entitled to a total of $8,789.15 in back pay.
> I find Respondent owes Petitioner Steward $5,537.73 in hourly back
> wages. Additionally, Exhibit B to Petitioners' Post-Hearing Brief
> establishes that Petitioner Steward was paid less than minimum wage for
> 11.5 hours of piece work in 2012, resulting in an underpayment of $30.10;
> 567.25 hours of piece work in 2013, resulting in an underpayment of
> $1,661.39; 457 hours of piece work in 2014, resulting in an underpayment of
> $1,445.56; and 251.75 hours of piece work in 2015, resulting in an
> underpayment of $412.46. I find these piece work numbers to have been
> correctly calculated, and I adopt them as part of my Decision. Accordingly,
> in sum, Petitioner Steward is entitled to a total of $9,087.24 in back pay.
> I find Respondent owes Petitioner Felton $4,207.17 in hourly back
> wages. Additionally, Exhibit C to Petitioners' Post-Hearing Brief
> establishes that Petitioner Felton was paid less than minimum wage for 9.5
> hours of piece work in 2012, resulting in an underpayment of $16.98;
> 810.5 hours of piece work in 2013, resulting in an underpayment of
> $3,022.04; 279 hours of piece work in 2014, resulting in an underpayment of
> $1,302.11; and 156.75 hours of piece work in 2015, resulting in an
> underpayment of $613.01. I find these piece work numbers to have been
> correctly calculated, and I adopt them as part of my Decision. Accordingly,
> in sum, Petitioner Felton is entitled to a total of $9,161.31 in back pay.
>
> C. An Award of Liquidated Damages to Petitioners is Appropriate
>
> Employers who violate the minimum wage provisions of the Act are
> liable for not only the unpaid back wages, but also "an additional equal
> amount as liquidated damages."141 These damages are considered
> compensatory, not punitive.142 Double damages are the norm, single damages
> are the exception.143
> Petitioners do not request an award of liquidated damages.144
> Respondent argues that the Petitioners "would not be entitled to liquidated
> damages or attorney fees" because "this proceeding is brought pursuant to
> 29 U.S.C. §214(c), and 29 C.F.R. Part 525, not sections [29 U.S.C. 20]6 or
> [20]7."145 I disagree with Respondent. I find that liquidated damages under
> §216 are available for violations of §214 of the Act.146
> An award of liquidated damages is not automatic.147 An Employer may
> avoid liability for liquidated damages by establishing it acted
> subjectively and objectively in good faith in its violation of the Act.148
> In such cases, the Employer's burden is to establish that it had "an honest
> intention to ascertain and follow the dictates of the Act" and that it had
> "reasonable grounds for believing that [its] conduct complied with the
> Act."149
> In analyzing Respondent's conduct, I note that while the commensurate
> wages paid to Petitioners were authorized by a series of §214(c)
> Certificates, that fact alone is not dispositive. Each Certificate states
> clearly: "The enclosed certificate does not constitute a statement of
> compliance by the Department of Labor nor does it convey a good faith
> defense to the employer should violations of the Fair Labor Standards Act .
> . . occur."150 To the contrary, I find Respondent's repeated requests to
> the Department of Labor for permission to pay Petitioners far less than
> minimum wage imposes on Respondent a particularly high duty (approaching a
> fiduciary duty) to make certain every aspect of the Petitioners' wages have
> been accurately and fairly calculated.
> I reach my conclusion about the existence of this high duty from the
> following undisputed facts: (1) The regulations151 require the employer
> possessing a Section 14(c) Certificate to make a series of "written
> assurances" regarding how the employer will evaluate the compensation paid
> to employees; (2) Petitioners have disabilities, including intellectual
> disability. The ability of Petitioners to understand the calculation of the
> "commensurate wages" being paid to them is very limited, and Petitioners
> doubtless rely on Respondent to perform the wage calculations accurately;
> (3) There is an extremely high potential for disabled workers to be
> exploited in sheltered workshops. This potential becomes more concrete
> where, as here, Petitioners are engaged in the manufacture of goods being
> sold by a large corporation such as Roppe Industries.152 Roppe could hire
> its own employees to replace the labor of Petitioners. If it chose to do
> so, it would pay those non-disabled workers at least minimum wage.
> Petitioners have been paid one-half or one-third of minimum wage for their
> work on the Creform line.
> A representative of Roppe occupies a seat on the Board of Directors
> of Respondent. Roppe Industries is the landlord of Respondent. I find the
> potential for Petitioners' exploitation to be high, and thus a high duty of
> care should be imposed on Respondent to properly calculate their
> commensurate wages.
> One form of potential workplace exploitation comes from the
> assignment of work in the Fostoria manufacturing facility. Mr. Biggert
> testified:
>
> Q. Okay. Do you have a sense or knowledge about how wages break
> down for workers there on the line versus the-
>
>
> A. It varies depending on the job; it varies depending on the
> worker. There are some jobs that some workers really hit out of the
> park, and there are other jobs where workers tend to struggle a little
> bit more.
>
>
> Q. So if you had a job where somebody's really hitting it out of
> the park, as you say, say they're producing at a rate of $14 an hour
> or $18 an hour as compared to the measure of productivity of the
> standard setter, would you want to place that person on that job more
> often?
>
>
> A. Yes.
>
>
> Q. Is there any reason you wouldn't place that person on the job
> more often?
>
> A. No. I mean, job availability sometimes is a bit of an issue. I
> mean, we don't always need every job running at the same time.
> Obviously, the assembly task at the end is the largest task we have.
>
> Q. Um-hum.
>
>
> A. But the only reason I can think that we wouldn't put somebody
> who was performing well on a specific job would be job availability
> and perhaps multiple people doing well on a job and wanting to make
> sure that we're spreading that opportunity around as much as possible.
>
>
> Q. So some folks might be doing very well on jobs and those same
> folks might be doing very poorly on other jobs, is that correct?
>
> A. That is possible, yes.
>
> Q. Is there any consistency in some jobs, just everybody seems to
> be getting particularly low wages or everybody seems to be getting
> higher wages?
>
>
> A. Not that I know of.
>
>
> Q. Are you familiar with the productivity and wages that Mr.
> Magers, Ms. Steward, and Mr. Felton have received?
>
>
> A. Yes, to some degree.
>
> Q. Okay. And they're-would you agree that all three of them at
> times, for instance, on the auto pad print machine are earning well
> above minimum wage, is that correct?
>
>
> A. Yes.
>
>
> Q. Is that unusual or is that consistent with other folks that
> also operate that machine?
>
>
> A. I don't know the answer to that question. While I do know the
> productivity of the three Petitioners, part of that has been in prep
> for what we've been doing right now. I'm sure we have many people who
> do well on that machine, and I'm sure we have others who probably do
> not.
>
>
> Q. Do you have anybody who's been sort of reviewing the
> productivity of-I mean, it sounds like you've got a lot of managers.
> Let me back up. Is there anybody who is trying to select appropriate
> people for appropriate tasks?
>
>
> A. I think the staff do that on a day-to-day basis. You know, if
> Laurie [Fretz] knows somebody's good at a particular task and that's a
> task we need to get a lot of done that day, that person will go on
> that task.153
>
> I do not see any corroboration in the Petitioner's pay records that
> they are frequently assigned jobs where they "knock it out of the park" in
> terms of making minimum wage or more. Although an employer may possess a
> Section 14(c) Certificate, I nonetheless conclude that, to the extent such
> work is available, the employer is required to allocate work in such a
> manner that as many employees may earn minimum wage as frequently as
> possible. It does not appear to me that such an allocation of higher-paying
> work has been made to the Petitioners here, and I find the failure of
> Respondent to make work assignments so as to maximize wages subjects
> Respondent to liquidated damages.
> Respondent argues in its Post-Hearing Brief that its administration of
> "timely wage surveys and hourly job samplings" evinces an effort to comply
> with the mandates of the Act.154 However, as noted above, the artificiality
> of those evaluations undermines their probative value as evidence of
> attempted compliance. Similarly, I reject Respondent's argument that its
> provision of "a discretionary increase on top of the commensurate wage . .
> . provide[s] extra compensation to workers with disabilities . . . to which
> they are not otherwise entitled" as evidence of good faith dealing with
> Petitioners. The record supports that the Petitioners were not impaired for
> the work performed, a fact which would have been discovered by the
> Respondent had it engaged in an honest and meaningful evaluation of their
> production. Therefore, its provision of a "discretionary increase," which
> still amounts to less than the minimum wage, does not establish an honest
> attempt to ascertain and follow the dictates of the Act. Notably, although
> not categorized as such by the Petitioners, the Respondent's discretionary
> payments could be equivocally interpreted as an attempt to disincentivize
> administrative review of the special minimum wage.155
> Respondent was required by the regulations to review the special
> minimum wages being paid to Petitioners "at a minimum of once every six
> months."156 Where, as here, there is such extraordinary variance in the
> production rates of the standard setters, I conclude Respondent should not
> have continued to rely on the same standard setter production data year
> after year. I believe Respondent violated 29 C.F.R. §525.9(b)(1) in that
> Respondent did not conduct an appropriate review of all of the data that
> goes into the formula by which Petitioners' wages are established. On the
> facts of this case-where the standard setter production data is so
> inconsistent-Respondent's failure to review that data at least at 6-month
> intervals subjects Respondent to liquidated damages.
> I have set forth earlier in this decision the various ways in which
> Petitioners wages were not appropriately calculated. I have set forth
> numerous examples of the documentation of how Petitioners' wages were
> calculated is inaccurate or missing. These acts and omissions violate the
> heightened duty of care I have found applicable, and the repeated nature of
> these acts and omissions subjects Respondent to liquidated damages.
> Petitioners' wage data reveals other unexplained variances in the
> wages paid by the Respondent. For example, Petitioner Felton was employed
> as a "Production Helper" for a total of six hours during the pay period
> ending March 7, 2014.157 It was agreed by Respondent and Petitioners that
> Production Helpers earn minimum wage as a matter of course. However, Mr.
> Felton earned minimum wage for only four of the six hours he worked as a
> Production Helper during the period. Without explanation, the Respondent
> paid Mr. Felton $0.03 per hour for a fifth hour of the same work and $0.25
> per hour for a sixth hour of the same work.158 Similarly, Mr. Magers was
> paid $15.48 per hour for 1.75 hours of work on the Creform line during the
> September 6, 2013, pay period, and $2.52 per hour for 23.75 hours of work
> on the Creform line during the September 20, 2013, pay period.159 These
> unexplained events lead me to conclude that good faith has not been
> demonstrated by Respondent.
> I also conclude Respondent has attempted to interfere with the fair
> adjudication of this matter by making large, unexplained, payments to each
> of the Petitioners on the very eve of this matter going to hearing. The
> "MISC ADJ" payments made by Respondent to Petitioners in late December 2015
> of between $435 and $685 represent a substantial portion of the income made
> by Petitioners during the 2015 calendar year. Questions about these
> payments were raised in the very first hours of a 5-day hearing, yet
> Respondent never offered any explanation for these payments. If one does
> not carefully study the line-items on Petitioners' wage documents, these
> "MISC ADJ" payments paint a much more benign picture of how Petitioners
> have been compensated. In the absence of any explanation, I conclude these
> payments were made immediately before the hearing to paint a misleadingly
> rosy picture of Petitioners' 2015 wages.
> Respondent has failed to establish that it had reasonable grounds for
> believing that its conduct complied with the Act. I find that Respondent is
> liable for liquidated damages in an amount equal to the amount of unpaid
> wages due to the Petitioners. Accordingly, Respondent owes each petitioner
> an additional amount equal to the total back pay outlined above.
>
> D. An Award of Interest is Not Appropriate
>
> Federal Circuit Courts of Appeal are in disagreement about whether
> prevailing plaintiffs in actions under the Act are entitled to pre-judgment
> and post-judgment interest. The Second, Third, Ninth, and Eleventh Circuit
> Courts of Appeal have held that while not mandatory, if pre- judgment
> interest is not awarded, a court must explain why the usual equities in
> favor of such interest are not applicable.160
> The majority of Federal Circuits, however, have held that if a
> petitioner is awarded liquidated damages under §216(b), then pre-judgment
> interest is unavailable. In Herman v. Harmelech,161 the court held that
> because liquidated damages were awarded, it was unnecessary to address the
> Secretary's request for pre-judgment interest. Citing to Uphoff v. Elegant
> Bath, Ltd.162 the court held that recovery of liquidated damages and pre-
> judgment interest would amount to double recovery.163
> The weight of authority supportive of this proposition relies on U.S.
> Supreme Court precedent from 1945. In Brooklyn Sav. Bank v. O'Neil,164 the
> Court established:
> Interest is not recoverable in judgments obtained under §16(b). As we
> indicated in our decision in Overnight Motor Co. v. Missel, [316 U.S. 572
> (1942)], §16(b) authorizes the recovery of liquidated damages as
> compensation for delay in payment of sums due under the Act. Since Congress
> has seen fit to fix the sums recoverable for delay, it is inconsistent with
> Congressional intent to grant recovery of interest on such sums in view of
> the fact that interest is customarily allowed as compensation for delay in
> payment. To allow an employee to recover the basic statutory wage and
> liquidated damages, with interest, would have the effect of giving an
> employee double compensation for damages arising from delay in the payment
> of basic minimum wages. Allowance of interest on minimum wages and
> liquidated damages recoverable under §16(b) tends to produce the
> undesirable result of allowing interest on interest. Congress by
> enumerating the sums recoverable in an action under §16(b) meant to
> preclude recovery of interest on minimum wages and liquidated damages.165
> I find that an award of pre-judgment interest on the back pay owed
> the Petitioners would constitute double recovery since liquidated damages
> have been awarded.
> However, case law suggests that the Petitioners may also be entitled
> to post-judgment interest.166 Under 28 U.S.C. §1961, post-judgment interest
> may be compounded on civil monetary damages received in district court, and
> in other express circumstances. However, §1961(c)(4) specifically disclaims
> that "[t]his section shall not be construed to affect the interest on any
> judgment of any court not specified in this section." Still, that statute
> has been interpreted, albeit infrequently, to allow post-judgment interest
> on monetary damages awarded in an administrative adjudication. See PGB
> International LLC Co. v. Bayche Companies, Inc.167
> I find that the imposition of post-judgment interest is not warranted
> in this matter. As outlined below, in making its curative back pay and
> liquidated damages payments to Petitioners, the Respondent will be required
> to consider the extent to which lump sum payment might affect Petitioners'
> eligibility to receive certain benefits and services crucial to the quality
> of their lives. To the extent possible, Respondent is being directed to
> work cooperatively with Petitioners to spread the payment of damages over a
> sufficient number of months to ensure Petitioners retain eligibility to
> necessary support programs. Because Respondent is being ordered to
> potentially delay payment of the total sum due to Petitioners, subjecting
> that sum to post-judgment interest would disincentivize meaningful
> compliance with that directive. Accordingly, I find that the unique
> equities of this case do not support an award of post-judgment interest.
>
> E. An Award of Attorneys' Fees and Costs May be Appropriate
>
> The Act authorizes the reviewing court to award the petitioner "a
> reasonable attorney's fee" and "costs of the action."168 On January 21,
> 2016, the parties submitted a Stipulated Withdrawal of the Petitioners'
> Motion for Sanctions, which states that each party has agreed to pay its
> own costs and attorney's fees. If that Stipulation was intended only as a
> waiver of attorney fees related to the Motion for Sanctions itself, then
> counsel for Petitioners may submit an application for attorney fees and
> costs within 14 days of the issuance of this Decision and Order. Respondent
> shall have 10 days to oppose any request for the award of attorney fees.
>
> XII. ORDER
>
> 1. Effective immediately, Petitioners Ralph ("Joe") Magers, Pamela
> Steward, and Mark Felton shall each be paid minimum wage for each hour
> worked at Respondent's Fostoria manufacturing facility;
>
> 2. Respondent shall pay Petitioner Ralph ("Joe") Magers the sum of
> $17,578.30 ($8,789.15 in unpaid wages and $8,789.15 in liquidated damages);
>
> 3. Respondent shall pay Petitioner Pamela Steward the sum of $18,174.48
> ($9,087.24 in unpaid wages and $9,087.24 in liquidated damages);
>
> 4. Respondent shall pay Petitioner Mark Felton the sum of $18,322.62
> ($9,161.31 in unpaid wages and $9,161.31 in liquidated damages); and
>
> 5. Upon receipt of this Decision and Order, and before making any
> payments of back wages and liquidated damages to the Petitioners,
> Respondent shall contact counsel for Petitioners. Counsel shall discuss
> whether the payment of the back wages and liquidated damages over a period
> of time will allow the Petitioners to retain eligibility for benefits
> Petitioners currently receive. Respondent shall pay the back wages and
> liquidated damages over time if counsel for Petitioners so requests.
> Otherwise those sums shall be payable within 30 days after the issuance of
> this Decision and Order;
>
> 6. As outlined above, Petitioners may seek the award of attorney fees
> and costs.
>
> SO ORDERED.
>
> Steven D. Bell Administrative Law Judge
> ----------
> Recipes
>
> Last month we took a trip to the past to revisit some of the
> delicious recipes that have been hiding in the Monitor archives. In fact,
> we found so many delicious recipes that we're going to keep the retro
> recipes rocking.
>
> BROCCOLI SALAD
> by Donna Biro
>
> This recipe first appeared in the April 1994 Monitor. Here's how Donna
> was introduced at the time: Donna Biro and her daughter Laura first found
> the Federation at the 1992 NFB of Michigan convention. Since that time all
> of the Biro family have been active members of the affiliate. Laura was a
> 1993 winner of both national and state NFB scholarships.
>
> Ingredients:
> 1 bunch broccoli, chopped
> 1 medium purple onion, chopped
> 5 slices bacon, fried crisp and crumbled
> 1/2 cup sunflower seeds
> 1/2 cup raisins
> 1/2 cup shredded cheddar cheese
>
> Dressing:
> 3/4 cup mayonnaise
> 1/4 cup sugar
> 2 tablespoons dark vinegar
>
> Method: Toss all non-dressing ingredients. Mix dressing ingredients
> well and combine with broccoli mixture.
> ----------
> CHICKEN CHOW MEIN
> by Deb Nefler
>
>
> This recipe first appeared in the April 2004 Monitor. Deb Nefler was
> secretary of the Falls Chapter of the NFB of South Dakota at the time.
>
>
> Ingredients:
> Vegetable cooking spray
> 1 1/2 cups chopped onion
> 1 cup sliced celery
> 1/2 cup chopped green pepper
> 2 cups cooked chicken, chopped
> 2-to-3 cups frozen Chinese vegetables
> 1 14-ounce can sliced mushrooms, drained
> 1/4 teaspoon ground cumin
> 1 tablespoon chicken-flavored bouillon granules
> 1 tablespoon cornstarch
> 3 cups water
>
> Method: Coat a large skillet with cooking spray and place over medium
> heat till hot. Add onion, celery, and green pepper and cook, stirring
> constantly, three minutes or till vegetables are tender-crisp. Stir in
> chicken, Chinese vegetables, mushrooms, and cumin and cook over medium heat
> for one minute. Dissolve bouillon granules and cornstarch in cold water.
> Add to mixture in pan and continue to cook over medium heat, stirring
> constantly till thickened and bubbly. Note: Chicken Chow Mein may be served
> over Chow Mein noodles or hot cooked rice. Serves seven with one-cup
> servings.
> ----------
> MACARONI PIE
> by David J. DeNotaris
>
> This recipe first appeared in the Monitor in February 1995 with this
> introduction: David DeNotaris is currently Job Opportunities for the Blind
> coordinator for New Jersey. He is also a world champion power lifter.
>
> Ingredients:
> 1 1/2 pounds ricotta cheese?
> Black pepper to taste?
> Garlic to taste?
> 7 eggs?
> Salt to taste?
> 1 pound mozzarella?
> Italian cheese, grated to taste?
> 1/2 pound thin spaghetti (broken in half)
>
> Method: Cook spaghetti according to package directions and drain in
> colander. In a large bowl beat eggs and then add ricotta and Italian
> cheese. Add salt, pepper, and garlic to taste. Cut mozzarella into small
> pieces and add to mixture. Stir in spaghetti and pour into greased baking
> pans. Bake at 350 degrees from fifty minutes to one hour, or until top is
> lightly browned and firm to the touch.
> ----------
> PALATSCHINKE
> by Fred Wurtzel
>
> This recipe first appeared in the May 2002 Monitor with this
> introduction: Fred Wurtzel is president of the NFB of Michigan. He reports
> that this is a simple family recipe.
>
> Ingredients:
> 1 cup flour
> 2 eggs
> 1 cup milk
> 1 teaspoon vanilla
>
> Method: You can vary this to accommodate the number to be served. Mix
> ingredients together and then fry. These are like thin crepes. For a treat
> we cook them in butter. Some like to roll them with cinnamon and sugar
> inside. Others like cottage cheese and jam-whatever suits your fancy.
> ----------
> O'HENRY BARS?
> by Linda Mentink
>
> This recipe originally appeared in the October 1997 Monitor. At the
> time Linda lived in Wisconsin and served as the president of the NFB Music
> Division. She is a singer with several albums to her credit.
>
> Ingredients:
> 1 cup melted butter or margarine?
> 1 cup granulated sugar?
> 1 cup brown sugar?
> 4 cups oatmeal
>
> Method: Mix all ingredients well and press into a lightly-greased
> cookie sheet with sides. (Mine measures about 10 by 14 inches.) Bake at 350
> degrees for ten to twelve minutes. Cool to room temperature. Pour over this
> a topping made of one cup crunchy peanut butter and one cup chocolate chips
> melted and stirred together well. Spread topping and chill bars. Cut before
> serving.
> ----------
> IOWA APPLESAUCE CAKE?
> by Terry E. Branstad
>
> This recipe first appeared in the June 1993 Monitor. Terry Branstad
> was the governor of Iowa at the time.
>
> Ingredients:
> 1/2 cup butter, margarine, or shortening?
> 3/4 cup sugar?
> 3/4 cup packed brown sugar?
> 1 egg?
> 2 cups all-purpose flour?
> 2 teaspoons baking powder?
> 1 teaspoon baking soda?
> 1 teaspoon ground cloves?
> 1-1/2 cups applesauce?
> 1 cup raisins?
> 1/2 cup chopped pecans or walnuts
>
> Method: In a large mixing bowl beat the butter for thirty seconds. Add
> the sugars and egg, and beat until combined. Stir together the flour,
> baking powder, baking soda, and spices. Add flour mixture alternately with
> applesauce to butter mixture. Stir in raisins and nuts. Pour batter into a
> greased 13-by-9-by-2-inch baking pan; spread evenly. Bake in a 350-degree
> oven for thirty to thirty-five minutes or until a toothpick inserted in
> center comes out clean. Cool in pan on wire rack; serves twelve.
>
> Cream Cheese Frosting:
>
> Ingredients:
> 2 3-ounce packages cream cheese, softened?
> 1/2 cup butter, softened?
> 2 cups powdered sugar, sifted
>
> Method: Beat together cream cheese and butter. Then beat in 2-1/2 to 2-
> 3/4 cups sifted powdered sugar to make a spreadable frosting. A butter
> frosting could be substituted for the cream cheese one.
> For a decorative finish, set a doily lightly on the frosted cake and
> sprinkle lightly with a mixture of cinnamon and nutmeg. Then carefully
> remove the doily.
>
> ----------
> Monitor Miniatures
>
> News from the Federation Family
>
> Louisiana Center for the Blind Buddy and STEP Programs 2016:
> Since 1989 the Louisiana Center for the Blind has offered an
> innovative summer program for blind children in grades four through eight.
> This summer, the Buddy Program promises to be full of learning
> opportunities, new friendships, and fun-filled activities.
> Many blind children have misconceptions about their blindness due to
> the lack of positive blind role models and to the negative stereotypes
> about blindness in society. Unlike other summer programs for blind
> children, the Buddy Program is directed and staffed by competent blind
> adults. Classes in cane travel are taught to instill independence and self-
> confidence. The knowledge of Braille enables the blind child to compete on
> terms of equality with sighted peers in the classroom and provides a solid
> background in spelling and other grammatical skills. Computer literacy
> classes expose a blind child to available adaptive equipment. Classes in
> daily living skills promote equal participation in household duties such as
> cooking, shopping, and cleaning. In addition to learning valuable
> alternative techniques of blindness, children will enjoy participating in a
> wide variety of exciting activities such as swimming, camping, bowling,
> roller skating, and field trips.
> The combination of hard work and fun activities will provide a
> rewarding experience that children will cherish. Involvement in the Buddy
> Program helps blind children realize that it is not blindness that holds
> them back. Rather, it is the negative attitudes and misconceptions about
> blindness that may prevent blind children from reaching their potential. At
> the close of the program, parents are required to attend a Parents'
> Weekend. This weekend will allow them to interact with other parents of
> blind children and to learn what their children have discovered about their
> blindness and themselves. Friendship, training, fun, growth, and
> interaction between blind children and positive blind role models is how
> the Louisiana Center for the Blind is "changing what it means to be blind."
> The Louisiana Center for the Blind will sponsor one session of the
> Buddy Program in 2016. Program dates are July 17-August 6.
> Perhaps we will have the opportunity to work with your child this
> summer. We know it will be a memorable experience for both you and them.
> All interested families should visit <www.louisianacenter.org> for more
> details and to apply. Please also feel free to contact our director of
> youth services, Eric Guillory before April 8. Please email Eric at
> <eguillory at louisianacenter.org> or call (800) 234-4166.
> Due to limited space, we cannot guarantee that every applicant will
> be granted enrollment. Please note that the fee for students not from
> Louisiana is $1,000, which is all-inclusive save for transportation to and
> from the program. The fee for Louisiana students is $500.
>
> 2016 Summer Training and Employment Project (STEP) Program:
> Since 1985 the Louisiana Center for the Blind has been changing what
> it means to be blind for adults from across America. In 1990 a program was
> created to address the needs of blind high school students. The Summer
> Training and Employment Project (STEP) Program is designed to introduce
> blind teenagers to positive blind role models and to provide participants
> with summer work experience.
> The eight-week summer program will consist of two components. During
> the first part of the program, competent blind counselors will instruct the
> students in the alternative techniques of blindness. Classes in Braille,
> cane travel, computer literacy, and daily living skills will be taught by
> qualified blind instructors. In addition, seminars will be conducted in the
> areas of job readiness, job interviewing skills, résumé writing, and job
> responsibilities. The second part of the program will continue all aspects
> of training and expand to include an employment dimension. Students will
> have the opportunity to work fifteen to twenty hours a week at a local
> business for which they will receive the federal minimum wage. The staff
> will attempt to meet the job interests of the students. Instructors from
> the Louisiana Center for the Blind will be available to provide on-the-job
> assistance as needed.
> The combination of work experience and blindness-related skills-along
> with fun-filled activities such as cookouts, swimming, and various other
> outings-will foster self-confidence and independence in young blind
> teenagers. During the week of June 30 through July 5, students will attend
> the national convention of the National Federation of the Blind in Orlando,
> Florida. This exciting conference will allow them to meet thousands of
> competent blind people from across the country. The students will also have
> the chance to participate in a wide variety of informative seminars. At the
> close of the program, parents will be required to attend a Parents'
> Weekend, which will enable them to discover how much their children have
> learned throughout the summer. The STEP program is designed to provide
> invaluable work experience, friendships, opportunities for personal growth,
> and cherished memories.
> Training will begin June 12 and conclude August 6. Please visit
> <www.louisianacenter.org> to learn about more program specifics and to
> complete an application.
> Due to limited space, we cannot guarantee that every applicant will
> be granted enrollment, and applicants must have an open case with their
> state's vocational rehabilitation agency or other funding entity to cover
> program costs.
> Questions? Please call our director of youth services, Eric Guillory
> at (800) 234-4166 or email him at <eguillory at louisianacenter.org>.
> "Together, we are changing what it means to be blind." Check out STEP and
> find out how.
>
> Braille Book Fair 2016:
> Calling all Braille readers, teachers, and parents! It's that time
> again to sort through all those boxes of Braille books and donate those
> gently used but no longer needed Braille books to the 2016 Braille Book
> Fair sponsored by the National Organization of Parents of Blind Children.
> Our primary goal is to get more Braille books into the hands of
> children, youth, and beginning adult readers-so here's what we need most:
>
> . print/Braille storybooks (aka Twin Vision®)
> . books in good condition
> . leisure reading (fiction or nonfiction) books
> . cookbooks and poetry
>
> Children are so hungry for their own Braille books that every year,
> despite generous donations of books, most of our books for young children
> are gone in less than an hour. So begin your search through the boxes in
> your basement and spare room, and get those books shipped to: 2016 Braille
> Book Fair, National Federation of the Blind, 200 East Wells Street at
> Jernigan Place, Baltimore, MD 21230.
> Please note that you are shipping the books Free Matter for the
> Blind; you do not need to pay to ship Braille items. Handwrite, stamp, or
> affix a label to the upper right-hand corner of the box stating: FREE
> MATTER FOR THE BLIND. Take your package(s) to your local post office.
>
> Elected:
> The NFB Greater Seattle chapter held elections on Saturday, January
> 16, 2016. The following officers were elected: president, Arielle
> Silverman; first vice president, Mike Mello; second vice president, Jacob
> Struiksma; secretary, Tanna Dieken; treasurer, Daniel Heathman; and board
> members, Ellen Farber and Mary Helen Scheiber.
>
> Elected:
> At the January meeting of the Capital Chapter of the NFB of New
> Jersey, the following were elected: president, Mary Jo Partyka; vice
> president, Ben Constantini; secretary, David Mostello; treasurer, John
> Lipton; and board members, Sue Constantini and Cindy Lipton.
>
> Florida Affiliate Holding Raffle:
> The Florida affiliate has started the 2016 fundraising campaign, and
> this is something that you do not want to miss out on.
> The raffle for the Shingle Creek is well on its way, and the Florida
> affiliate welcomes your participation. The raffle is a two-night stay at
> Shingle Creek, plus $50 per diem, or $300 cash (which is the value of the
> package.) The tickets are one for $5.00 or three for $10.00. This raffle
> will run through March 31. The winner will be contacted by telephone the
> day of the drawing (March 31 at 7:30 p.m.). Also, the video recording will
> be posted on YouTube. Once again the Florida affiliate thanks you for
> supporting the work of the Federation.
> You can pay by sending a check or money order to the NFB of Florida
> c/o Jorge Hernandez, 201 NW 56th Ct., Miami, FL 33126. You may also pay by
> PayPal by clicking on the link <PayPal.Me/nfbfl>.
> If you have any questions, please feel free to contact Jorge
> Hernandez, fundraising chair, at <jeh1065 at comcast.net> or by phone at (305)
> 877-2311.
>
> Looking for Alumni of Residential Schools for the Blind:
> My name is Ken Lawrence, and a couple of years ago I got inspired by
> an attempt to start a division of the NFB. My enthusiasm was renewed by the
> Seventy-Five Days of Action, but as I tried to find old friends who
> attended various schools for the blind and other residential schools, I
> kept hitting the same issue: the loss of the accomplishments achieved in
> the schools for the blind by students my age. These accomplishments range
> from athletics to performances in plays and recitals to participation in
> programs like vending stands. When the residential schools for the blind
> became institutions for multiple handicaps, some of the facilities were
> repurposed. For example, I attended the Oakhill School for the Blind in
> Hartford from 1974 to 1979. Six months after I left Oakhill, the auditorium
> where I played Mayor Shinn in The Music Man was turned into a playroom for
> younger kids. The swimming pool where we won Eastern Athletic Association
> of the Blind Championships is also gone. The acorn shop which I helped
> launch is gone also. Even finding alumni of my era is very difficult.
> I'm asking readers of the Braille Monitor for help. I'd like alumni
> of residential schools for the blind to write down their memories of their
> days at school, of the awards they won, the competitions, the activities
> they participated in, and the wonderful memories they made there. I would
> like to see these memories preserved as the schools themselves change and
> evolve into much different institutions than the ones we attended and
> remember. Send your written memories to the Monitor at <gwunder at nfb.org>.
>
>
> In Brief
>
> Notices and information in this section may be of interest to Monitor
> readers. We are not responsible for the accuracy of the information; we
> have edited only for space and clarity.
>
> Download Accessible Tax Information:
> Get ready for the tax season! Hundreds of the latest accessible
> federal tax forms and publications are available for download from the IRS
> Accessibility Web page at <https://www.irs.gov/Forms-&-Pubs/Accessible-
> Products>. You can choose from large-print, text, accessible PDFs, e-
> Braille, or HTML formats that are compatible with screen readers and
> refreshable Braille displays. The IRS also provides American Sign Language
> videos with the latest tax information at <https://www.irs.gov/uac/Videos-
> American-Sign-Language-(ASL)>.
>
>
> IRS Tax Return Preparation Help is Available:
> Tax assistance is available to people with a physical disability or
> are age sixty or older through the IRS Volunteer Income Tax Assistance
> (VITA) or Tax Counseling for the Elderly (TCE) programs. You can find a
> nearby VITA or TCE location by using the available locator tools at
> <https://www.irs.gov/Individuals/Free-Tax-Return-Preparation-for-You-by-
> Volunteers> or by calling (800) 906-9887. Publication 907, Tax Highlights
> for Persons with Disabilities, explains the tax implications of certain
> disability benefits and other issues and is available at <www.IRS.gov>.
>
> Information about NASA Internships Available:
> Science, Technology, Engineering, and Mathematics (STEM) initiatives
> have been a focus of the Federation in the last few years, and we have
> enjoyed a long and fruitful relationship with NASA. Their interest in
> seeking and growing qualified blind employees is unquestionable. If you
> would like to subscribe to an announcement-only list about NASA internships
> for persons with disabilities, please send an email to <nasainterns-
> request at freelists.org> with 'subscribe' in the Subject field, or by
> visiting the list page at <http://www.freelists.org/list/nasainterns>. This
> is an internship program, not an employment program. For NASA jobs, please
> go to <http://www.usajobs.gov>.
>
> Registration for 2016 No Barriers Summit Now Open:
> From June 23-26 No Barriers will host its annual signature event, the
> Summit, this year at Copper Mountain in Colorado. Thousands of people of
> all abilities from across the USA and around the world will embark on
> exhilarating adventures in over fifty adaptive activities in sports,
> adventure, arts, and education; be motivated by phenomenal speakers
> and celebrities; and be inspired by some of the most creative and
> innovative technologies, products, and services helping to transform lives.
>
> Your four-day Summit Pass includes:
> . All meals (except for the BBQ on Friday night)
> . Invitations to Opening and Closing Ceremonies presenting famous
> speakers and celebrities.
> . Access to No Barriers University showcasing genius experts.
> . Entry to Innovation Village, a trade show featuring the most
> innovative products and services-register now!
> . Admission to the Film Festival and Music Concert.
> . Fun at Copper: zip lines, bumper boats, go-karts, mini golf,
> fireworks spectacular, and more.
> For more information check out our webpage at:
> <http://www.nobarriersusa.org/summit/>.
>
> Spoken Word Ministries Debuts New Christian Resource Library:
> Spoken Word Ministries Inc., serving blind people since 1988,
> announces the national launch of BrailleAudio, an internet-based Christian
> resource library. BrailleAudio currently contains books in a DAISY format
> similar to the format used by the National Library Service for the Blind
> and Physically Handicapped (NLS). BrailleAudio makes books available for
> download by its members, or the member can choose to participate in its
> read-by-mail program if downloading is not an option. Any visually impaired
> or blind person living in the United States or a patron of NLS is invited
> to apply to join BrailleAudio. To apply for a free membership to
> BrailleAudio, visit <www.brailleaudio.org> and click on the join link. You
> may also apply by telephone by calling (919) 635-1000. We encourage family
> members, friends, and professionals to assist those who request assistance
> to help them apply for BrailleAudio membership. Please help only at the
> request of the prospective member.
> We thank the Lord for enabling us to launch BrailleAudio and invite
> you to visit <www.brailleaudio.org>, where blind people read.
>
>
> Monitor Mart
>
> The notices in this section have been edited for clarity, but we can
> pass along only the information we were given. We are not responsible for
> the accuracy of the statements made or the quality of the products for
> sale.
>
> Wanted:
> I want to purchase a Parrot Voice Mate. I am willing to pay premium
> price. Please contact Ray Hicks at (269) 429-8676.
>
> HumanWare Apex for Sale:
> I have a BrailleNote Apex for sale. The unit includes a Braille
> keyboard, a thirty-two cell Braille display, up-to-date software, an
> Executive Products case, the Oxford Dictionary and Thesauras, the Sendero
> GPS, and the AC adapter. I am asking $4,000 or best offer. I will accept
> PayPal or checks for payment, and I will pay for shipping.
> Contact Robert Stigile at (818) 381-9568 or by email at
> <rnstechnology at gmail.com>.
>
> ----------
> NFB Pledge
> I pledge to participate actively in the efforts of the National
> Federation of the Blind to achieve equality, opportunity, and security for
> the blind; to support the policies and programs of the Federation; and to
> abide by its constitution.
> _______________________________________________
> Brl-monitor mailing list
> Brl-monitor at nfbcal.org
> https://nfbcal.org/mailman/listinfo.cgi/brl-monitor
From: Audrey Farnum <atfarnum at icloud.com>
Content-Type: multipart/alternative;
boundary=Apple-Mail-9A1544C1-D5AE-4474-961C-22DD9B43A4FF
<html><head><meta http-equiv="content-type" content="text/html; charset=utf-8"></head><body dir="auto"><div><br><br>Audrey T. Farnum<div>Sent from my iPhone</div></div><div><br>Begin forwarded message:<br><br></div><blockquote type="cite"><div><b>From:</b> <a href="mailto:buhrow at lothlorien.nfbcal.org">buhrow at lothlorien.nfbcal.org</a> (Brian Buhrow)<br><b>Date:</b> March 1, 2016 at 2:01:48 PM CST<br><b>To:</b> <a href="mailto:brl-monitor at nfbcal.org">brl-monitor at nfbcal.org</a><br><b>Subject:</b> <b>[Brl-monitor] The Braille Monitor, March 2016</b><br><b>Reply-To:</b> <a href="mailto:buhrow at nfbcal.org">buhrow at nfbcal.org</a><br><br></div></blockquote><blockquote type="cite"><div><span></span><br><span> BRAILLE MONITOR</span><br><span>Vol. 59, No. 3 March 2016</span><br><span> Gary Wunder, Editor</span><br><span></span><br><span></span><br><span> Distributed by email, in inkprint, in Braille, and on USB flash</span><br><span>drive, with the audio version being available in both Spanish and English</span><br><span>(see reverse side) by the</span><br><span></span><br><span> NATIONAL FEDERATION OF THE BLIND</span><br><span></span><br><span> Mark Riccobono, President</span><br><span></span><br><span> telephone: (410) 659-9314</span><br><span> email address: <a href="mailto:nfb at nfb.org">nfb at nfb.org</a></span><br><span> website address: <a href="http://www.nfb.org">http://www.nfb.org</a></span><br><span> <a href="http://nfbnet.org">NFBnet.org</a>: <a href="http://www.nfbnet.org">http://www.nfbnet.org</a></span><br><span> NFB-NEWSLINE® information: (866) 504-7300</span><br><span> Like us on Facebook: <a href="http://facebook.com/nationalfederationoftheblind">Facebook.com/nationalfederationoftheblind</a></span><br><span> Follow us on Twitter: @NFB_Voice</span><br><span> Watch and share our videos: <a href="http://youtube.com/NationsBlind">YouTube.com/NationsBlind</a></span><br><span></span><br><span></span><br><span>Letters to the President, address changes, subscription requests, and</span><br><span>orders for NFB literature should be sent to the national office. Articles</span><br><span>for the Monitor and letters to the editor may also be sent to the national</span><br><span>office or may be emailed to <a href="mailto:gwunder at nfb.org">gwunder at nfb.org</a>.</span><br><span></span><br><span></span><br><span>Monitor subscriptions cost the Federation about forty dollars per year.</span><br><span>Members are invited, and nonmembers are requested, to cover the</span><br><span>subscription cost. Donations should be made payable to National Federation</span><br><span>of the Blind and sent to:</span><br><span></span><br><span> National Federation of the Blind</span><br><span> 200 East Wells Street at Jernigan Place</span><br><span> Baltimore, Maryland 21230-4998</span><br><span></span><br><span> THE NATIONAL FEDERATION OF THE BLIND KNOWS THAT BLINDNESS IS NOT THE</span><br><span> CHARACTERISTIC THAT DEFINES YOU OR YOUR FUTURE. EVERY DAY WE RAISE THE</span><br><span> EXPECTATIONS OF BLIND PEOPLE, BECAUSE LOW EXPECTATIONS CREATE OBSTACLES</span><br><span> BETWEEN BLIND PEOPLE AND OUR DREAMS. YOU CAN LIVE THE LIFE YOU WANT;</span><br><span> BLINDNESS IS NOT WHAT HOLDS YOU BACK. THE NATIONAL FEDERATION OF THE BLIND</span><br><span> IS NOT AN ORGANIZATION SPEAKING FOR THE BLIND-IT IS THE BLIND SPEAKING FOR</span><br><span> OURSELVES.</span><br><span>ISSN 0006-8829</span><br><span>© 2016 by the National Federation of the Blind</span><br><span> Each issue is recorded on a thumb drive (also called a memory stick</span><br><span>or USB flash drive). You can read this audio edition using a computer or a</span><br><span>National Library Service digital player. The NLS machine has two slots-the</span><br><span>familiar book-cartridge slot just above the retractable carrying handle and</span><br><span>a second slot located on the right side near the headphone jack. This</span><br><span>smaller slot is used to play thumb drives. Remove the protective rubber pad</span><br><span>covering this slot and insert the thumb drive. It will insert only in one</span><br><span>position. If you encounter resistance, flip the drive over and try again.</span><br><span>(Note: If the cartridge slot is not empty when you insert the thumb drive,</span><br><span>the digital player will ignore the thumb drive.) Once the thumb drive is</span><br><span>inserted, the player buttons will function as usual for reading digital</span><br><span>materials. If you remove the thumb drive to use the player for cartridges,</span><br><span>when you insert it again, reading should resume at the point you stopped.</span><br><span> You can transfer the recording of each issue from the thumb drive to</span><br><span>your computer or preserve it on the thumb drive. However, because thumb</span><br><span>drives can be used hundreds of times, we would appreciate their return in</span><br><span>order to stretch our funding. Please use the return envelope enclosed with</span><br><span>the drive when you return the device.</span><br><span></span><br><span>[PHOTO CAPTION: Palm-lined drive leading to front entrance to Rosen Shingle</span><br><span>Creek Resort]</span><br><span></span><br><span> Orlando Site of 2016 NFB Convention</span><br><span></span><br><span> The 2016 convention of the National Federation of the Blind will take</span><br><span>place in Orlando, Florida, June 30 to July 5, at the Rosen Shingle Creek</span><br><span>Resort, 9939 Universal Boulevard, Orlando, Florida 32819-9357. Make your</span><br><span>room reservation as soon as possible with the Shingle Creek staff only.</span><br><span>Call (866) 996-6338.</span><br><span> The 2016 room rates are singles and doubles, $83; and for triples and</span><br><span>quads $89. In addition to the room rates there will be a tax, which at</span><br><span>present is 13.5 percent. No charge will be made for children under</span><br><span>seventeen in the room with parents as long as no extra bed is requested.</span><br><span>The hotel is accepting reservations now. A $95-per-room deposit is required</span><br><span>to make a reservation. Fifty percent of the deposit will be refunded if</span><br><span>notice is given to the hotel of a reservation cancellation before May 27,</span><br><span>2016. The other 50 percent is not refundable.</span><br><span> Rooms will be available on a first-come, first-served basis.</span><br><span>Reservations may be made before May 27, 2016, assuming that rooms are still</span><br><span>available. After that time the hotel will not hold our room block for the</span><br><span>convention. In other words, you should get your reservation in soon.</span><br><span> All Rosen Shingle Creek guestrooms feature amenities that include</span><br><span>plush Creek Sleeper beds, 40" flat screen TVs, complimentary high-speed</span><br><span>internet capabilities, in-room safes, coffee makers, mini-fridges, and hair</span><br><span>dryers. Guests can also enjoy a swimming pool, fitness center, and on-site</span><br><span>spa. The Rosen Shingle Creek Resort has a number of dining options,</span><br><span>including two award-winning restaurants, and twenty-four-hour-a-day room</span><br><span>service.</span><br><span> The schedule for the 2016 convention is:</span><br><span>Thursday, June 30 Seminar Day</span><br><span>Friday, July 1 Registration Day</span><br><span>Saturday, July 2 Board Meeting and Division Day</span><br><span>Sunday, July 3 Opening Session</span><br><span>Monday, July 4 Business Session</span><br><span>Tuesday, July 5 Banquet Day and Adjournment</span><br><span></span><br><span></span><br><span></span><br><span> 2016 NFB National Convention Preregistration Form</span><br><span></span><br><span></span><br><span>Please register online at <a href="http://www.nfb.org/preregistration">www.nfb.org/preregistration</a> or complete all</span><br><span>requested information on this form. Print and mail form to the address</span><br><span>below.</span><br><span></span><br><span>Registrant Name:</span><br><span>Address:</span><br><span>City:</span><br><span>State: ________________________________________________ Zip:</span><br><span>_________________</span><br><span>Phone:</span><br><span>Email:</span><br><span></span><br><span> I will pick up my registration packet at convention.</span><br><span></span><br><span> The following person will pick up my registration packet:</span><br><span></span><br><span> Pickup Name:</span><br><span></span><br><span> Please register only one person per registration form.</span><br><span> One check or money order may cover multiple registrations.</span><br><span> Check or money order (sorry, no credit cards) must be enclosed with</span><br><span> registration form(s).</span><br><span></span><br><span> Number of preregistrations x $25 = _________</span><br><span> Banquet tickets x $60 = __________</span><br><span></span><br><span> Total ___</span><br><span></span><br><span> All convention preregistration and banquet sales are final (no refunds).</span><br><span></span><br><span> Mail to: National Federation of the Blind</span><br><span> Attn: Convention Preregistration</span><br><span> 200 E. Wells Street at Jernigan Place</span><br><span> Baltimore, MD 21230</span><br><span> Registrations must be postmarked by May 31, 2016.</span><br><span></span><br><span>Vol. 59, No. 3 March</span><br><span>2016</span><br><span></span><br><span> Contents</span><br><span></span><br><span></span><br><span>Illustration: New Accessible ATM Installed at Jernigan Institute</span><br><span></span><br><span>The 2016 Washington Seminar in Review</span><br><span>by Deja Powell</span><br><span></span><br><span>Legislative Agenda of Blind Americans for the 114th Congress, Second</span><br><span>Session</span><br><span></span><br><span>Transitioning to Integrated and Meaningful Employment Act (H.R. 188) (S.</span><br><span>2001)</span><br><span></span><br><span>Accessible Instructional Materials in Higher Education (AIM HE) Act</span><br><span></span><br><span>Equal Access to Air Travel for Service-Disabled Veterans (H.R. 2264)</span><br><span></span><br><span>The Marrakesh Treaty to Facilitate Access to Published Works for Persons</span><br><span>Who Are Blind, Visually Impaired, or Otherwise Print Disabled ("Marrakesh</span><br><span>Treaty")</span><br><span></span><br><span>Moving the Challenge Indoors</span><br><span>by Anil Lewis</span><br><span></span><br><span>Dissecting the Value of Diversity</span><br><span>by Justin Salisbury</span><br><span></span><br><span>The Kenneth Jernigan Convention Scholarship Fund</span><br><span>by Allen Harris</span><br><span></span><br><span>Court Renders Major Decision on the Practice of Paying Subminimum Wages to</span><br><span>Disabled Workers</span><br><span></span><br><span>Recipes</span><br><span></span><br><span>Monitor Miniatures</span><br><span></span><br><span></span><br><span></span><br><span>[PHOTO CAPTION: (Left to right) Mark Riccobono stands with Marc Maurer and</span><br><span>Randy Rice of Cardtronics as Dr. Maurer prepares to cut the ribbon on the</span><br><span>new Cardtronics accessible ATM.]</span><br><span>[PHOTO CAPTION: Mark Riccobono receives his cash as he makes the first</span><br><span>withdrawal from the new ATM.]</span><br><span></span><br><span> New Accessible ATM Installed at Jernigan Institute</span><br><span></span><br><span> Since the introduction of the automated teller machine (ATM), the</span><br><span>blind of the nation have been fighting for access to the cash and other</span><br><span>services these devices provide. At first we were told there was no product</span><br><span>for the banks to buy, and they blamed the manufacturers. We were then told</span><br><span>by the manufacturers that there was no demand and that we must go to the</span><br><span>banks. Next, we were told that the cost of modifying the hundreds of</span><br><span>thousands of machines would be prohibitive and that requiring every ATM to</span><br><span>be accessible was an unreasonable demand. When our lawsuits and</span><br><span>negotiations got the industry and the government to take notice, we then</span><br><span>had to suffer the jokes about those crazy people who wanted to put Braille</span><br><span>on drive-up ATMs. Slowly, however, we began to reach settlements with</span><br><span>banks, and while many ATMs are owned by major banking institutions, many</span><br><span>are privately owned. Such is the case with Cardtronics, a company which</span><br><span>owns and operates more than 53,000 ATMs across the country.</span><br><span> As reported in the August-September 2015 issue of the Braille</span><br><span>Monitor, the National Federation of the Blind reached an amicable</span><br><span>settlement with Cardtronics, and one of the promises made by the company</span><br><span>was the installation of an ATM at our national headquarters in Baltimore.</span><br><span>That machine was installed, and on January 22, 2016, it was officially</span><br><span>unveiled and is now available to everyone who works at or visits the</span><br><span>Jernigan Institute.</span><br><span></span><br><span>[PHOTO CAPTION: Deja Powell]</span><br><span> The 2016 Washington Seminar in Review</span><br><span> by Deja Powell</span><br><span></span><br><span> From the Editor: Normally it falls to the editor to write about our</span><br><span>mid-year convention of the National Federation of the Blind, AKA the</span><br><span>Washington Seminar. This year I had a volunteer, and I really appreciate</span><br><span>her work and her most valuable contribution.</span><br><span> Deja is a winner of a scholarship in 2002 and a tenBroek winner in</span><br><span>2014. Here is what she writes about our work to let lawmakers hear from the</span><br><span>blind:</span><br><span></span><br><span> Utah is known for its snow; the mountains surrounding Salt Lake City</span><br><span>are usually covered in the powdery white stuff by January. At this time</span><br><span>people begin flocking to the state for some of the best skiing,</span><br><span>snowboarding, and snowshoeing in the world. As the snow begins to pile atop</span><br><span>the Utahan Mountains, I know it's time to gear up for the National</span><br><span>Federation of the Blind's annual Washington Seminar. The NFB Washington</span><br><span>Seminar is where a few hundred of the most ambitious and feisty blind</span><br><span>people in the country gather on Capitol Hill to make things happen.</span><br><span>[PHOTO CAPTION: The piles of snow from the plows are almost as tall as the</span><br><span>cars parked in front of the Jernigan Institute in Baltimore, graphic proof</span><br><span>of the travel difficulties faced by this year's attendees at the Washington</span><br><span>Seminar.]</span><br><span> This year, however, would be like no other in the organization's</span><br><span>history: days before the annual meeting, the news started shifting its</span><br><span>attention to Jonas (not Kevin, Joe or Nick, the Jonas Brothers), but winter</span><br><span>storm Jonas, which was headed directly for the Washington DC/Baltimore</span><br><span>area. Meteorologists were predicting one of the largest snowstorms in the</span><br><span>history of our nation's capital was going to hit the week of the NFB</span><br><span>Washington Seminar. Many of us hoped that the news was wrong-that Jonas</span><br><span>wasn't going to be all he was cracked up to be. As the time came to pack</span><br><span>and fly, most of us realized Jonas was not all talk. The storm dumped not</span><br><span>inches, but feet of snow on the Washington DC/Baltimore area, and quickly.</span><br><span>Flights across the country were delayed, then cancelled, then delayed and</span><br><span>cancelled again. Airports were shut down on Friday and Saturday, and all</span><br><span>city transportation suspended. Many of our fellow Federationists were</span><br><span>finding it difficult if not impossible to make their way to DC. The word</span><br><span>impossible, however, doesn't really resonate with Federationists, so many</span><br><span>fought to get there and do the work that had to be done.</span><br><span>[PHOTO CAPTION: Federationists didn't let a few feet of snow daunt them, as</span><br><span>the crowd at the Great Gathering-In shows.]</span><br><span> With major airports shutting down, activities that would normally</span><br><span>have taken place on Saturday, Sunday, and Monday were significantly</span><br><span>altered. One event was a seminar to train state affiliate legislative</span><br><span>coordinators. Here is how Parnell Diggs, our director of government</span><br><span>affairs, described the event and the on-the-fly changes made to make it</span><br><span>work:</span><br><span></span><br><span> Prior to Washington Seminar, a legislative workshop is held for</span><br><span> representatives from each state affiliate to learn more about the</span><br><span> legislative agenda of the National Federation of the Blind. This year,</span><br><span> the workshop was scheduled for January 23, 24, and 25. Due to the</span><br><span> impending storm, President Riccobono suggested inviting workshop</span><br><span> participants to arrive early in order to beat the blizzard. This</span><br><span> strategy proved effective, as more than twenty of our directors made</span><br><span> it to the Jernigan Institute before travel became treacherous. For</span><br><span> those who did arrive early, the workshop was filled with energy and</span><br><span> enthusiasm. President Riccobono welcomed participants at a special</span><br><span> meeting at 4:00 p.m. on Friday. Since the group arrived twenty-four</span><br><span> hours early, members decided to begin the workshop on Saturday morning</span><br><span> rather than waiting until the originally scheduled start time of 6:00</span><br><span> p.m. Joining us on that Saturday morning were not only our fearless</span><br><span> travelers, but legislative directors forced to remain at home until</span><br><span> they could fly into DC. They joined us thanks to the hastily-arranged</span><br><span> conference call put together by our team. For those present the</span><br><span> blizzard conditions did nothing to curtail the service and consumption</span><br><span> of meals, cookies, and coffee during the weekend. Nothing could match</span><br><span> the energy of the logistics team, which masterfully managed the</span><br><span> logistics with precision, grace, and unflagging goodwill.</span><br><span> We lost electric power during the afternoon session on Saturday,</span><br><span> but Federationists continued working as if nothing was out of the</span><br><span> ordinary. The Harbor Room fireplace had been stocked in case heat was</span><br><span> needed, but thankfully the power was restored before dinner.</span><br><span> On Monday morning the chartered bus arrived to transport</span><br><span> Federationists to Washington, DC, but it could not get closer than a</span><br><span> quarter of a mile to the Jernigan Institute. Thus, Federationists</span><br><span> walked through the snow to reach the bus. Four adults and one child</span><br><span> from Hawaii received the admiration of the entire assembly, since</span><br><span> their "winter clothes" were not designed for walking through piles of</span><br><span> shoveled snow that were four feet high in some places.</span><br><span> As we so often remind our friends and even our opponents, we are</span><br><span> a Federation family. Attitudes remained positive throughout the</span><br><span> weekend, and while two dozen Federationists were literally snowed-in</span><br><span> at the Jernigan Institute, the 2016 legislative priorities were</span><br><span> thoroughly discussed, and everyone had a blast.</span><br><span></span><br><span> After the government announced they would be closed on Monday, with</span><br><span>several appointments cancelled for the remainder of the week,</span><br><span>discouragement could have set in, but it didn't. Some members of the</span><br><span>Federation, myself included, took advantage of the rare opportunity to go</span><br><span>sledding down Capitol Hill. After climbing through mini-mountains of snow</span><br><span>on street corners and finally getting to the Capitol, I found an awesome</span><br><span>teenage girl who let me borrow her plastic sled to take a quick trip down</span><br><span>the Hill. With a big grin on my face, I began climbing the very icy and</span><br><span>slick Hill. I barely avoided falling a few times in the process, but I</span><br><span>finally made it to the top. I asked a nice guy up there to line me up so I</span><br><span>would not run over any children on my way down. Once aligned, he gave me a</span><br><span>pretty big push, and I was on my way. Halfway down I spun-out, came to a</span><br><span>stop, and pushed myself the rest of the way down. It was a great,</span><br><span>empowering moment for me-a reminder that I can live the life I want, even</span><br><span>if it requires borrowing a sled or two along the way.</span><br><span> But now it was time to get to work. Prior to the Great Gathering-In</span><br><span>meeting, the student division took care of business. Despite the weather,</span><br><span>nothing could stop the National Association of Blind Students (NABS) from</span><br><span>getting together and having a good time. Nearly fifty students made it to</span><br><span>DC for the NABS annual Washington Seminar meeting, twenty-five of whom were</span><br><span>sponsored by the NFB and would not have been able to attend without the</span><br><span>organization's financial support. The annual student meeting included</span><br><span>information on the new Self-Advocacy in High Education Toolkit Version 1.0,</span><br><span>which serves as a support to blind college students in an effort to prevent</span><br><span>or mitigate accessibility barriers on campus. You can find more information</span><br><span>about the toolkit at <<a href="https://nfb.org/self-advocacy-higher-education">https://nfb.org/self-advocacy-higher-education</a>>. The</span><br><span>meeting also included a speech from President Mark Riccobono, who</span><br><span>encouraged students to step up and take on more leadership roles. Student</span><br><span>Division President Sean Whalen also spoke to those in attendance about</span><br><span>happenings at the national level and the KNFB Reader App. The student</span><br><span>meeting included several breakout sessions covering a variety of topics</span><br><span>including employment, internships, self-advocacy, vocational rehabilitation</span><br><span>services, and more. On Tuesday evening the student division hosted the NABS</span><br><span>Café, an annual social event for students and supporters, which included an</span><br><span>auction, raffle, and live entertainment. Despite the weather, the</span><br><span>attendance matched that of previous Washington Seminar student meetings.</span><br><span> For the first time in history, the annual Great Gathering-In meeting</span><br><span>was held on Tuesday morning, with a smaller but powerful group of</span><br><span>Federationists ready to learn, act, and change the laws of the land.</span><br><span>President Mark Riccobono welcomed everyone and thanked all for making such</span><br><span>an enormous effort to attend. He specifically welcomed two-year-old Eliana</span><br><span>from Hawaii, who is blind and attending her first-ever Washington Seminar.</span><br><span>He suggested, "If anybody asks you why you bothered to trudge through the</span><br><span>snow to get here, you tell them about Eliana; it's her future we're working</span><br><span>for." In his welcome speech, President Riccobono talked about a variety of</span><br><span>legal cases affecting the lives of blind parents, children, and adults,</span><br><span>addressing employment barriers blind people face, such as not receiving</span><br><span>equal wages, inaccessible technology for the blind, lack of internet</span><br><span>regulations, lack of accessibility in transportation (including Uber), and</span><br><span>the need for accessibility in voting rights. He ended by saying, "We do all</span><br><span>this work and more because it is personal to us, and we are here because it</span><br><span>matters in our own lives and in the lives of others." He continued, "We are</span><br><span>here because for seventy-five years we have set the standard, and we</span><br><span>continue to raise expectations for blind people across the country. We are</span><br><span>here because we seek to live the lives we want!"</span><br><span> Jernigan Institute Executive Director Anil Lewis also spoke to the</span><br><span>crowd about the various programs going on at the Jernigan Institute,</span><br><span>including STEM2U, NFB EQ <<a href="http://www.blindscience.org/NFBEQ">http://www.blindscience.org/NFBEQ</a>>, NFB Bell</span><br><span>Academy <<a href="https://nfb.org/bell-academy">https://nfb.org/bell-academy</a>>, and other academic-focused</span><br><span>programs. Anil declared, "It's not our inability to see that defines our</span><br><span>future; it's the poor education systems that don't challenge us, that don't</span><br><span>set high expectations for us to meet...Blind people have the intellect,</span><br><span>knowledge, ability, talent, interest, desire, and passion to be involved in</span><br><span>STEM subjects."</span><br><span> Fred Schroeder followed by announcing that the United States will be</span><br><span>hosting the World Blind Union this summer in Orlando, Florida, and</span><br><span>encouraged Federationists to attend. President Riccobono also announced</span><br><span>that this year's NFB National Convention will be held in Orlando, Florida,</span><br><span>Thursday, June 30 through Tuesday, July 5, at the Rosen Shingle Creek</span><br><span>Resort and that pre-registration will open on March 1.</span><br><span> Immediate past president Dr. Marc Maurer addressed the Great</span><br><span>Gathering-In by discussing important legal issues facing the blind and how</span><br><span>the National Federation of the Blind is working on these, including</span><br><span>subminimum wage issues, Amazon accessibility, and parental rights.</span><br><span>Executive Director of Advocacy and Policy, John Paré, welcomed all who</span><br><span>fought the storm to make it to Washington and announced the use of a new</span><br><span>App for NFB Washington Seminar, "NFB in DC," designed to set up and track</span><br><span>appointments. Next, Parnell Diggs, director of government affairs,</span><br><span>addressed the crowd regarding logistics of the week and welcomed all to DC.</span><br><span>He encouraged attendees to check with individual senators and</span><br><span>representatives to be sure appointments were still on as scheduled.</span><br><span>[PHOTO/CAPTION: Parnell Diggs]</span><br><span>[PHOTO/CAPTION: Rose Sloan]</span><br><span>[PHOTO/CAPTION: Gabe Cazares]</span><br><span> Parnell then introduced his legislative team: Rose Sloan and Gabe</span><br><span>Cazares. Rose started things off by talking about the first of four issues:</span><br><span>equal work for equal pay, or the Transitioning to Integrated and Meaningful</span><br><span>Employment (TIME) Act (H.R. 188; S. 2001). Rose declared, "The blind and</span><br><span>all people with disabilities deserve an honest wage. We are going to</span><br><span>educate and advocate; the NFB will get the TIME Act passed." She continued,</span><br><span>"For far too long the blind have been paid less than the minimum wage, and</span><br><span>it is time to end this. Section 14(c) of the Fair Labor Standards Act must</span><br><span>be repealed."</span><br><span> Rose also discussed the second issue, Equal Access to Air Travel for</span><br><span>Service-Disabled Veterans (H.R. 2264). The Space Available Program allows</span><br><span>members of the active military, some family members, Red Cross employees,</span><br><span>and retired armed services members to travel on military aircraft if space</span><br><span>is available. However, members of the military who were classified as 100</span><br><span>percent service disabled before September 23, 1996, do not qualify for this</span><br><span>program because they are not considered "retired." Rose declared that both</span><br><span>the TIME Act and the Space Available proposal are in need of co-sponsors.</span><br><span> Gabe Cazares, the newest member of the government affairs team,</span><br><span>discussed the two remaining issues. First is the Accessible Instructional</span><br><span>Materials in Higher Education (AIM HE) Act, which will generate guidelines</span><br><span>for higher education institutions when implementing new technology to</span><br><span>ensure it is accessible to blind and print-disabled students. Gabe notes</span><br><span>that far too often schools deploy inaccessible technology, then modify</span><br><span>another version for blind students, and tragically this usually occurs</span><br><span>weeks or even months into class. This has the effect of creating a</span><br><span>"separate-but-equal" landscape with nearly impenetrable barriers. Gabe went</span><br><span>on to say, "Blind students will not be relegated to second-class</span><br><span>citizenship in employment or the classroom. All technology needs to be</span><br><span>accessible to all students."</span><br><span> Gabe also talked about the Marrakesh Treaty to Facilitate Access to</span><br><span>Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise</span><br><span>Print Disabled. The Marrakesh Treaty is an international copyright treaty</span><br><span>that will give blind Americans access to millions of published works and</span><br><span>improve the distribution of books across the globe. Unlike the United</span><br><span>States, where copyright code includes the Chafee Amendment and other</span><br><span>exceptions, two-thirds of the world's nations do not have domestic</span><br><span>copyright laws that permit making copies for the blind, limiting the number</span><br><span>of works available in an accessible format. Gabe concluded by encouraging</span><br><span>all of us to get moving to push through all four of our important issues.</span><br><span> John Paré went through all of the information in the legislative</span><br><span>packets this year, including fact sheets and letters of support. President</span><br><span>Riccobono announced the congressional reception would be cancelled due to</span><br><span>the weather. He also encouraged everyone to attend the NABS Café that</span><br><span>evening to support the student division of the National Federation of the</span><br><span>Blind. He then introduced the director of public relations, Chris</span><br><span>Danielson, who discussed an Op-Ed written by President Riccobono that was</span><br><span>released that day on the Congress Blog <<a href="http://thehill.com/blogs/congress-">http://thehill.com/blogs/congress-</a></span><br><span>blog/civil-rights/266943-inequality-and-indifference>. The article includes</span><br><span>information on signing the NFB's We the People Petition</span><br><span><<a href="https://petitions.whitehouse.gov/petition/direct-us-department-justice-">https://petitions.whitehouse.gov/petition/direct-us-department-justice-</a></span><br><span>promptly-release-ada-internet-regulations>, which needs 100,000 signatures</span><br><span>by mid-February. Chris encouraged everyone to share the Op-Ed piece and the</span><br><span>Washington Seminar experience on social media under the hashtag #NFBWS16.</span><br><span>He ended his remarks by saying: "Washington knows we're here, now let us</span><br><span>let the world know."</span><br><span> President Riccobono concluded the meeting with a few last minute</span><br><span>announcements, encouraging participants to share their experiences on</span><br><span>social media, noting the demonstration of a new Braille display being</span><br><span>debuted at the seminar, and telling us that Anil Lewis had eaten all the</span><br><span>peanut butter pie that was available.</span><br><span> On Tuesday, Wednesday, and Thursday the nation's blind took over</span><br><span>Capitol Hill. In fact, we were pretty much the only ones brave enough to go</span><br><span>to the Congress that week. Many affiliates met with Congress and House</span><br><span>staffers, and a few got to meet face-to-face with their representatives and</span><br><span>senators. Despite the weather, lots of progress was made on some of the big</span><br><span>issues, and Federationist fought hard to share the concerns our elected</span><br><span>officials can address that truly effect the blind.</span><br><span> As a dancer I have grown to love the quotation by Vivian Greene,</span><br><span>"Life isn't about waiting for the storm to pass...It's about learning to</span><br><span>dance in the rain." It was a lot more than rain in Washington, DC, for this</span><br><span>Washington Seminar, but record-breaking snow accumulation covering our</span><br><span>nation's capital couldn't stop members of the National Federation of the</span><br><span>Blind from dancing. Many of my family and friends asked me why I was going</span><br><span>to Washington, DC, when the weather was so bad and Congress wouldn't even</span><br><span>be in session; some went so far as to say I was being ridiculous for going.</span><br><span>My response: "What we're going to Washington for will outlast the storm.</span><br><span>The issues we are fighting for will be there long after the snow melts. The</span><br><span>blind of our country have been told far too many times that we can't, that</span><br><span>we won't, that we shouldn't, but we are not ready to back down...no matter</span><br><span>the barriers. Snowzilla can't stop us!" And, you know, it didn't.</span><br><span> ----------</span><br><span> Legislative Agenda of Blind Americans</span><br><span> Priorities for the 114th Congress, Second Session</span><br><span></span><br><span> . The Transitioning to Integrated and Meaningful Employment Act (H.R.</span><br><span> 188, S. 2001)</span><br><span></span><br><span> Section 14(c) of the Fair Labor Standards Act allows employers to pay</span><br><span>workers with disabilities subminimum wage because of the false assumption</span><br><span>that they are less productive than nondisabled workers. This antiquated</span><br><span>provision breeds low expectations and discourages disabled Americans from</span><br><span>reaching their full vocational potential. H.R. 188 and S.2001 will</span><br><span>responsibly phase out the use of Section 14(c) Special Wage Certificates,</span><br><span>ending the era of segregated, subminimum wage work.</span><br><span></span><br><span></span><br><span> . The Accessible Instructional Materials in Higher Education (AIM HE)</span><br><span> Act</span><br><span></span><br><span> Electronic instructional materials have replaced traditional methods</span><br><span>of learning in postsecondary education, but the overwhelming majority of</span><br><span>ebooks, courseware, web content, and other technologies are inaccessible to</span><br><span>students with print disabilities. The law requires equal access in the</span><br><span>classroom but fails to provide direction to schools for the way it applies</span><br><span>to technology. AIM HE creates voluntary accessibility guidelines for</span><br><span>educational technology to improve blind students' access to course</span><br><span>material, stimulate the market, and reduce litigation for schools.</span><br><span></span><br><span></span><br><span> . Equal Access to Air Travel for Service-Disabled Veterans (H.R. 2264)</span><br><span></span><br><span> The Space Available Program allows active-duty military, Red Cross</span><br><span>employees, and retired members of the armed services to travel on military</span><br><span>aircraft if space is available. H.R. 2264 reverses the exclusion of 100</span><br><span>percent service-disabled veterans who were discharged before September 23,</span><br><span>1996, and entitles them to the program's privileges even though they were</span><br><span>never classified as "retired."</span><br><span></span><br><span></span><br><span> . The Marrakesh Treaty to Facilitate Access to Published Works for</span><br><span> Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled</span><br><span></span><br><span> Despite the ability to convert print books into accessible formats</span><br><span>like Braille, large print, audio, and digital copies, millions of blind and</span><br><span>otherwise print-disabled Americans are excluded from accessing 95 percent</span><br><span>of published works. The Marrakesh Treaty calls for contracting parties to</span><br><span>provide in their national copyright laws for a limitation or exception that</span><br><span>allows for the reproduction, distribution, and cross-border exchange of</span><br><span>accessible works.</span><br><span> ----------</span><br><span> Transitioning to Integrated and Meaningful Employment Act (H.R. 188) (S.</span><br><span> 2001)</span><br><span></span><br><span> Current labor laws unjustly prohibit workers with disabilities from</span><br><span> reaching</span><br><span> their full vocational and socioeconomic potential.</span><br><span></span><br><span> Antiquated public policy encourages workers with disabilities to rely</span><br><span>on government assistance such as Supplemental Security Income (SSI) and</span><br><span>Medicaid. Section 14(c) of the Fair Labor Standards Act, passed in 1938,</span><br><span>authorizes the Secretary of Labor to issue Special Wage Certificates to</span><br><span>certain entities, permitting them to pay workers with disabilities</span><br><span>subminimum wages. Ninety-five percent of 14(c)-certificate-holding entities</span><br><span>are nonprofit "sheltered workshops" (segregated work environments)1 that</span><br><span>pay over 300,000 workers with disabilities as little as pennies per hour,</span><br><span>leading many of those workers to seek government assistance.</span><br><span> Current training and employment strategies assist those with even the</span><br><span>most significant disabilities to obtain integrated and meaningful</span><br><span>employment. Workers in sheltered workshops often perform mundane tasks that</span><br><span>do not use their existing skills, interests, and talents. However,</span><br><span>innovative strategies such as customized and supported employment, when</span><br><span>paired with appropriate rehabilitative services, training, tools, and</span><br><span>expectations allow employees with disabilities to be as productive as their</span><br><span>nondisabled coworkers.2</span><br><span> A growing number of former 14(c)-certificate-holding entities have</span><br><span>transitioned their business models into effective disability training</span><br><span>programs. No entities in Vermont or New Hampshire use 14(c) certificates.</span><br><span>Seminars such as the Vermont Conversion Institute highlight entities that</span><br><span>have successfully phased out reliance on Section 14(c) certificates. This</span><br><span>transition not only benefits employees with disabilities but the overall</span><br><span>productivity of the organizations that employ them.3 Research shows that</span><br><span>sheltered workshops cost more to society than alternatives. Moreover,</span><br><span>consumers who were not exposed to the low expectations of sheltered,</span><br><span>subminimum-wage environments earn more money than peers who were in those</span><br><span>environments.4</span><br><span> Policy and public and private sentiment are moving into a new era of</span><br><span>proven competitive, integrated employment for people with disabilities. In</span><br><span>August 2012 the National Council on Disability unanimously recommended that</span><br><span>the Department of Labor immediately stop issuing new Special Wage</span><br><span>Certificates and that the "Section 14(c) program be phased out."5 In</span><br><span>September 2015 a committee tasked by Congress to increase competitive</span><br><span>integrated employment opportunities for workers with disabilities</span><br><span>recommended the phase-out of Section 14(c).6 In addition, over eighty</span><br><span>disability organizations support the repeal of Section 14(c) of the Fair</span><br><span>Labor Standards Act.7</span><br><span></span><br><span>The Transitioning to Integrated and Meaningful Employment Act:</span><br><span></span><br><span> Discontinues the issuance of new Special Wage Certificates. The</span><br><span>Secretary of Labor will no longer issue Special Wage Certificates to new</span><br><span>applicants.</span><br><span> Phases out the use of Special Wage Certificates over three years.</span><br><span>Three years after the enactment of this Act, no 14(c)-certificate-holding</span><br><span>entity will pay workers with disabilities subminimum wages, allowing them</span><br><span>to transition to the proven model of competitive, integrated employment for</span><br><span>all of their employees with disabilities.</span><br><span> Repeals Section 14(c) of the Fair Labor Standards Act. Three years</span><br><span>after the law is enacted, the practice of paying workers with disabilities</span><br><span>subminimum wages will be officially abolished. This will result in the</span><br><span>development of integrated and meaningful employment opportunities that</span><br><span>encourage people with disabilities to reach their full vocational and</span><br><span>socioeconomic potential.</span><br><span></span><br><span> To cosponsor H.R. 188 in the House of Representatives, contact:</span><br><span> Scot Malvaney, policy director, Office of Congressman Gregg Harper (R-</span><br><span>MS)</span><br><span> Phone: (202) 225-5031, Email: <<a href="mailto:Scot.Malvaney at mail.house.gov">Scot.Malvaney at mail.house.gov</a>></span><br><span></span><br><span> To cosponsor S.2001 in the Senate, contact:</span><br><span> Dan Auger, Legislative Assistant, Office of Senator Kelly Ayotte (R-</span><br><span>NH)</span><br><span> Phone: (202) 224-3324, Email: <<a href="mailto:Daniel_Auger at ayotte.senate.gov">Daniel_Auger at Ayotte.senate.gov</a>></span><br><span></span><br><span> For more information, contact:</span><br><span> Rose Sloan, Government Affairs Specialist, National Federation of the</span><br><span>Blind</span><br><span> Phone: (410) 659-9314, Extension 2441, Email: <<a href="mailto:rsloan at nfb.org">rsloan at nfb.org</a>></span><br><span></span><br><span> For more information visit: <<a href="http://www.nfb.org/TIME">www.nfb.org/TIME</a>></span><br><span></span><br><span> __________________________________________________</span><br><span>1United States Department of Labor. "Wage and Hour Division (WHD) Community</span><br><span>Rehabilitation Programs (CRPs) List." Last modified October 1, 2015.</span><br><span><a href="http://www.dol.gov/whd/specialemployment/CRPlist.htm">http://www.dol.gov/whd/specialemployment/CRPlist.htm</a>.</span><br><span></span><br><span>2United States Department of Labor. "Customized Employment Works</span><br><span>Everywhere." Last modified October 2009.</span><br><span><a href="https://www.hdi.uky.edu/setp/materials/vignette_v3_blue_508_FINAL.pdf">https://www.hdi.uky.edu/setp/materials/vignette_v3_blue_508_FINAL.pdf</a>.</span><br><span></span><br><span>3Szlyk, Janet. "Letter of Support Issued by the Chicago Lighthouse." Last</span><br><span>modified September 30, 2011.</span><br><span><<a href="http://nfb.org/Images/nfb/documents/word/Chicago_Lighthouse_Support_letter">http://nfb.org/Images/nfb/documents/word/Chicago_Lighthouse_Support_letter</a>.</span><br><span>doc>.</span><br><span></span><br><span>4Cimera, Robert E.; Wehman, Paul; West, Michael; & Burgess, Sloane. "Do</span><br><span>Sheltered Workshops Enhance Employment Outcomes for Adults with Autism</span><br><span>Spectrum Disorder?" Autism. 16 (2012): 87.</span><br><span></span><br><span>5National Council on Disability. "National Council on Disability Report of</span><br><span>Subminimum Wages and Supported Employment." Last modified August 23, 2012.</span><br><span><<a href="https://www.ncd.gov/publications/2012/August232012">https://www.ncd.gov/publications/2012/August232012</a>>.</span><br><span></span><br><span>6Advisory Committee on Increasing Competitive Integrated Employment for</span><br><span>Individuals with Disabilities. "Interim Report." Last modified September</span><br><span>15, 2015. <<a href="http://www.dol.gov/odep/pdf/20150808.pdf">http://www.dol.gov/odep/pdf/20150808.pdf</a>>.</span><br><span></span><br><span>7National Federation of the Blind. "The following groups support the repeal</span><br><span>of Section 14(c) of the Fair Labor Standards Act." Last modified February</span><br><span>12, 2015. <<a href="https://nfb.org/groups-supporting-repeal-section-14c-fair-labor-">https://nfb.org/groups-supporting-repeal-section-14c-fair-labor-</a></span><br><span>standards-act>.</span><br><span> ----------</span><br><span> Accessible Instructional Materials in Higher Education (AIM HE) Act</span><br><span></span><br><span> Until colleges and universities drive the demand for accessible</span><br><span> instructional materials, blind college students will be denied access to</span><br><span> critical course content.</span><br><span></span><br><span> Technology has fundamentally changed the education system. The scope</span><br><span>of instructional materials used at institutions of higher education has</span><br><span>expanded. Curricular content comes in digital books, PDFs, webpages, etc.,</span><br><span>and most of this content is delivered through digital databases, learning</span><br><span>management systems, and applications. The print world is inherently</span><br><span>inaccessible to students with disabilities, but technology offers the</span><br><span>opportunity to expand the circle of participation. Studies have found that,</span><br><span>of the six million plus students with print disabilities in the system, the</span><br><span>number who go on to pursue postsecondary education is growing.</span><br><span> Blind students are facing insurmountable barriers to education.</span><br><span>Instead of fulfilling the promise of equal access, technology has created</span><br><span>more problems than the print world ever did. Data show that students with</span><br><span>disabilities face a variety of challenges, including matriculation failure,</span><br><span>solely because colleges and universities are sticking with the ad-hoc</span><br><span>accommodations model instead of embracing accessibility. Schools deploy</span><br><span>inaccessible technology and then modify another version for blind students,</span><br><span>usually weeks or even months into class, creating a "separate-but-equal"</span><br><span>landscape with nearly impenetrable barriers. With only a 20 percent</span><br><span>employment rate, blind students should not be denied access by the</span><br><span>innovations that could have ensured full participation.</span><br><span> Institutions of higher education need help to identify accessible</span><br><span>material and comply with nondiscrimination laws. Section 504 of the</span><br><span>Rehabilitation Act and Titles II and III of the Americans with Disabilities</span><br><span>Act require schools to provide equal access, and in 2010, the US</span><br><span>Departments of Justice and Education clarified that the use of inaccessible</span><br><span>technology is prohibited under these laws. In the five years since, over a</span><br><span>dozen institutions have faced legal action for using inaccessible</span><br><span>technology, and complaints are on the rise. Most litigation ends with a</span><br><span>commitment from the school to embrace accessibility, but that commitment</span><br><span>does little in a vast, uncoordinated higher education market that mostly</span><br><span>forgets about blind students.</span><br><span> Accessibility solutions are available, but guidelines are sorely</span><br><span>needed to guide the market. Equal access requirements have no criteria for</span><br><span>accessibility that schools can use when selecting technology. Innovations</span><br><span>in text-to-speech, refreshable Braille, and other accessibility features</span><br><span>are widely available, but developers and manufacturers will incorporate</span><br><span>only solutions that are demanded by the market. Accessibility guidelines</span><br><span>are needed so that schools can streamline demand, stimulate the market, and</span><br><span>better identify accessible material. If schools seeking to avoid litigation</span><br><span>embrace this path to compliance, blind students will truly attain equal</span><br><span>access.</span><br><span> Accessible Instructional Materials in Higher Education Act:</span><br><span></span><br><span>Develops accessibility guidelines for instructional materials used in</span><br><span>postsecondary education.</span><br><span> A purpose-based commission is tasked with developing accessibility</span><br><span>criteria for instructional materials and the delivery systems/technologies</span><br><span>used to access those materials. Additionally, the commission is tasked with</span><br><span>developing an annotated list of existing national and international</span><br><span>standards so that schools and developers can identify what makes a product</span><br><span>usable by the blind.</span><br><span></span><br><span>Provides incentive for institutions of higher education to follow the</span><br><span>guidelines.</span><br><span> Institutions of higher education that use only technology that</span><br><span>conforms with the guidelines will be deemed in compliance with the</span><br><span>provisions of Section 504 of the Rehabilitation Act and Titles II and III</span><br><span>of the Americans with Disabilities Act that pertain to schools' use of</span><br><span>technology.</span><br><span></span><br><span>Offers flexibility for schools while reiterating that pre-existing</span><br><span>obligations still apply.</span><br><span> Colleges and universities are permitted to use material that does not</span><br><span>conform to the guidelines as long as equal access laws are still honored.</span><br><span>Conformity with the AIM HE guidelines is only one path to compliance;</span><br><span>schools can pursue a different path, but will forfeit the safe harbor legal</span><br><span>protection.</span><br><span></span><br><span> Remove Barriers to Equality in the Classroom.</span><br><span> Sponsor the Accessible Instructional Materials in Higher Education Act.</span><br><span></span><br><span> For more information contact:</span><br><span> Gabe Cazares, government affairs specialist, National Federation of the</span><br><span> Blind</span><br><span> Phone: (410) 659-9314, Extension 2206, Email: <<a href="mailto:gcazares at nfb.org">gcazares at nfb.org</a>></span><br><span></span><br><span> For more information visit: <<a href="http://www.nfb.org/aim_he">www.nfb.org/aim_he</a>></span><br><span> ----------</span><br><span> Equal Access to Air Travel for Service-Disabled Veterans (H.R. 2264)</span><br><span></span><br><span> The Space Available Program unjustly denies 100 percent service-disabled</span><br><span> veterans the opportunity to participate.</span><br><span></span><br><span> One hundred percent service-disabled veterans are not entitled to air</span><br><span>travel privileges to which other members of the military have access. The</span><br><span>Space Available Program allows members of the active military, some family</span><br><span>members, Red Cross employees, and retired armed services members to travel</span><br><span>on military aircraft if space is available. However, members of the</span><br><span>military who were classified as 100 percent service disabled before</span><br><span>September 23, 1996, do not qualify for this program because they are not</span><br><span>considered "retired."</span><br><span> This exclusion denies 100 percent service-disabled veterans</span><br><span>discharged before September 23, 1996, a privilege to which they would be</span><br><span>entitled had they not been disabled during service. Those service members</span><br><span>who were disabled during active duty and were medically discharged prior to</span><br><span>September 23, 1996, did not have the chance to stay on active duty, to be</span><br><span>classified as "medically retired," or to fulfill the twenty years</span><br><span>requirement to become qualified for this program. These men and women have</span><br><span>earned the right to space-available travel just as others have because they</span><br><span>sacrificed so much for our country.</span><br><span> Military aircraft are already equipped to accommodate passengers with</span><br><span>disabilities. Retired military personnel, their family members, and Red</span><br><span>Cross workers with disabilities are already permitted to use the Space</span><br><span>Available Program, and according to the AMC Space-Available Handbook &</span><br><span>FAQ's, "Every effort shall be made to transport passengers with</span><br><span>disabilities who are otherwise eligible to travel." Therefore, permitting</span><br><span>100 percent service-disabled veterans the opportunity to ride on military</span><br><span>aircraft if space is available will not cause any new burden to the</span><br><span>program.</span><br><span> The National Defense Authorization Act provides the platform to</span><br><span>achieve the goal of this bill. In a letter dated November 3, 2015, Bob</span><br><span>Dole, a decorated World War II veteran and longtime Senate majority leader,</span><br><span>urged Senator John McCain, Chairman of the US Senate Committee on Armed</span><br><span>Services, to incorporate this bill into the National Defense Authorization</span><br><span>Act (NDAA). Indeed, the House of Representatives' version of NDAA for</span><br><span>fiscal years 2014 and 2015 included the language of H.R. 2264.</span><br><span></span><br><span></span><br><span> Equal Access to Air Travel for Service-Disabled Veterans would:</span><br><span></span><br><span> Provide travel privileges to all 100 percent service-disabled</span><br><span>veterans. This bill amends Title 10 of the United States Code to permit</span><br><span>veterans who have a service-connected, permanent disability rated as total</span><br><span>to travel on military aircraft in the same manner and to the same extent as</span><br><span>retired members of the Armed Forces.</span><br><span></span><br><span> HONOR OUR SERVICE-DISABLED VETERANS: PERMIT THEM TO USE THE SPACE AVAILABLE</span><br><span> PROGRAM</span><br><span></span><br><span> Cosponsor H.R. 2264.</span><br><span></span><br><span> To cosponsor H.R. 2264 in the House of Representatives, contact:</span><br><span> Joe Millado, senior policy advisor, Office of Congressman Gus Bilirakis (R-</span><br><span> FL)</span><br><span> Phone: (202) 225-5755, Email: <<a href="mailto:Joe.Millado at mail.house.gov">Joe.Millado at mail.house.gov</a>></span><br><span></span><br><span> For more information, contact:</span><br><span> Rose Sloan, government affairs specialist, National Federation of the Blind</span><br><span> Phone: (410) 659-9314, Extension 2441, Email: <<a href="mailto:rsloan at nfb.org">rsloan at nfb.org</a>></span><br><span></span><br><span></span><br><span> "Brave soldiers made the same sacrifices as their fellow veterans, and</span><br><span> their disabilities are a direct result of combat or its aftermath. I</span><br><span> believe they should be able to participate in the Space Available program."</span><br><span> - Bob Dole Letter to Senator McCain, November 3, 2015</span><br><span> ----------</span><br><span> The Marrakesh Treaty to Facilitate Access to Published Works for Persons</span><br><span> Who Are Blind, Visually Impaired, or Otherwise Print Disabled ("Marrakesh</span><br><span> Treaty")</span><br><span></span><br><span> An international copyright treaty will give blind Americans access to</span><br><span> millions of published works and improve the distribution of books across</span><br><span> the globe.</span><br><span></span><br><span>Millions of Americans are being denied access to published works.</span><br><span> Despite the ability to convert print books into accessible formats</span><br><span>like Braille, audio, and digital copies, over 95 percent of published works</span><br><span>are unavailable to people with print disabilities. Literacy and equal</span><br><span>participation in society are critical elements of a fulfilling and</span><br><span>independent life, but until uniformity is built into the international</span><br><span>copyright system, blind Americans will be excluded from accessing works. A</span><br><span>blind student seeking to learn Spanish will likely struggle to find an</span><br><span>accessible format; a work printed in English may have already been</span><br><span>converted into an accessible format overseas, but because copies are not</span><br><span>exchanged across borders, domestic entities might need to make a duplicate</span><br><span>copy or just might deny access altogether by failing to reproduce the work.</span><br><span></span><br><span>An uncoordinated legal approach prevents the cross-border exchange of</span><br><span>accessible books.</span><br><span> Unlike the United States, where copyright code includes the Chafee</span><br><span>Amendment and other exceptions, two-thirds of the world's nations do not</span><br><span>have domestic copyright laws that permit making copies for the blind,</span><br><span>limiting the number of works available in an accessible format. Moreover,</span><br><span>many countries consider distribution of accessible copies an infringement</span><br><span>as well, and even amongst nations that permit distribution, limitations</span><br><span>vary. Instead of exchanging books across borders, works are needlessly</span><br><span>duplicated, and circulation is significantly limited.</span><br><span></span><br><span>The Marrakesh Treaty was adopted to achieve this goal.</span><br><span> On June 27, 2013, a diplomatic conference convened by the World</span><br><span>Intellectual Property Organization, (WIPO) in Morocco adopted the Marrakesh</span><br><span>Treaty with outspoken support from the US delegation. The treaty, signed by</span><br><span>the US on October 2, 2013, currently has eighty-two signatories and has</span><br><span>been ratified by fourteen countries. Because the treaty calls for</span><br><span>contracting parties to adopt copyright exemptions similar to those found in</span><br><span>US law, the administration is developing a ratification package that should</span><br><span>call for only a sleek, narrow set of modifications.</span><br><span></span><br><span> The Marrakesh Treaty has broad stakeholder support. Blind people</span><br><span>should have full and equal access to all works that enrich lives, further</span><br><span>education, and share critical information; the treaty balances this</span><br><span>priority with the interests of rights holders. WIPO's adoption of the</span><br><span>Marrakesh Treaty was supported by American-based companies, the</span><br><span>international publishing community, legal experts, and blindness advocates.</span><br><span>The treaty will have tangible benefits for all involved.</span><br><span></span><br><span> The Marrakesh Treaty calls for contracting parties to provide in</span><br><span>their national copyright laws for a limitation or exception that allows for</span><br><span>the:</span><br><span></span><br><span> . Reproduction of works, by an authorized entity, for the purposes of</span><br><span> converting them into accessible format copies exclusively for</span><br><span> beneficiary persons.</span><br><span></span><br><span> . Distribution of accessible format copies exclusively to beneficiary</span><br><span> persons.</span><br><span></span><br><span> . Import of accessible format copies, for the purposes of making them</span><br><span> available domestically.</span><br><span></span><br><span> . Export of accessible format copies, for the purposes of making them</span><br><span> available to a beneficiary person in another country.</span><br><span></span><br><span></span><br><span> Remove Barriers to Access of Published Works.</span><br><span> Support ratification of the Marrakesh Treaty.</span><br><span></span><br><span> For more information, contact:</span><br><span> Gabe Cazares, government affairs specialist, National Federation of the</span><br><span> Blind</span><br><span> Phone: (410) 659-9314, Extension 2206, Email: <<a href="mailto:gcazares at nfb.org">gcazares at nfb.org</a>></span><br><span> ----------</span><br><span></span><br><blockquote type="cite"><span>From the Editor: President Obama reacted to our request and has forwarded</span><br></blockquote><span>the Marrakesh Treaty language to the United States Senate for ratification.</span><br><span></span><br><span>[PHOTO CAPTION: Anil Lewis]</span><br><span> Moving the Challenge Indoors</span><br><span> by Anil Lewis</span><br><span></span><br><span> From the Editor: One of the most liberating experiences of my life</span><br><span>occurred after I received a long white cane, received enough instruction to</span><br><span>use it, and was given a pass to travel off the campus of the Missouri</span><br><span>School for the Blind by myself. For the first time in my life, outside</span><br><span>travel did not mean shuffling my shoe along the edge of the sidewalk,</span><br><span>holding my arm across my body to protect myself against poles and signs,</span><br><span>and fearing with every step that I would find a drop-off or, God forbid, an</span><br><span>open manhole. It took some time for me to realize that the cane was not</span><br><span>only an outdoor tool but was both effective and necessary when traveling in</span><br><span>many indoor environments.</span><br><span> As wonderful as a cane and a dog can be, much information still</span><br><span>exists that we have a hard time getting as blind people. What store are we</span><br><span>passing in a mall? Where is the closest restroom? Where is a bench I can</span><br><span>use while my wife spends hours going through the dress shop? If I am in a</span><br><span>crowded banquet hall and leave my chair to run an errand, how do I find</span><br><span>that chair without disrupting the festivities by asking a bunch of</span><br><span>questions? There is much to be explored in all of this indoor technology</span><br><span>that looms on the horizon, and it is no surprise that the Jernigan</span><br><span>Institute is playing a leading role in helping to publicize what is</span><br><span>available, ensuring that developers have a clear vision of what blind</span><br><span>people need in this area, and coordinating efforts to see that the</span><br><span>resulting technology is something that blind people really want and need.</span><br><span>Here is what the executive director of our Jernigan Institute says about</span><br><span>ongoing efforts to encourage the development of indoor travel technology:</span><br><span></span><br><span> Marc Maurer, the immediate past president of the National Federation</span><br><span>of the Blind had the audacity to believe in the dream of a blind person</span><br><span>independently driving an automobile and established the NFB Blind Driver</span><br><span>Challenge. This groundbreaking initiative of our NFB Jernigan Institute</span><br><span>challenged universities, technology developers, and other interested</span><br><span>innovators to build interface technologies that empower blind people to</span><br><span>drive a car safely and independently. The power of partnering the nonvisual</span><br><span>expertise of the National Federation of the Blind with the engineering</span><br><span>talent of Dr. Dennis Hong and his graduate students at Virginia Tech, while</span><br><span>taking advantage of the innovative navigation capability possessed by the</span><br><span>engineers at TORC Robotics, culminated in a demonstration of the capacity</span><br><span>of the blind with our current president, Mark Riccobono, becoming the first</span><br><span>blind driver on the Daytona International Speedway in January of 2011. We</span><br><span>continue to engage mainstream automobile manufacturers with the goal of</span><br><span>ensuring nonvisual access to the vehicle control interfaces that would</span><br><span>allow blind people to operate them as they introduce more autonomous</span><br><span>functionality. Because we first dared to dream of a car that the blind can</span><br><span>drive, we are moving ever closer to transforming our dream of driving into</span><br><span>reality. Soon, the blind will be able to drive ourselves, our family</span><br><span>members, and our friends to work, to school, or to the local mall. Now we</span><br><span>are moving the challenge of developing innovative nonvisual wayfinding</span><br><span>technology indoors. Our National Federation of the Blind Indoor Navigation</span><br><span>Challenge initiative actively explores partnerships that foster the</span><br><span>development of technology that can be used by the blind to access</span><br><span>information about the indoor environments in which we travel.</span><br><span> Members of the National Federation of the Blind know that blind</span><br><span>people effectively use tools and strategies like long white canes, guide</span><br><span>dogs, mental mapping, echolocation, and problem-solving skills to acquire</span><br><span>and to make use of environmental information to travel safely and</span><br><span>independently outdoors and indoors. In fact, the students at our National</span><br><span>Federation of the Blind adult rehabilitation training centers learn to</span><br><span>effectively use nonvisual travel skills to move independently and</span><br><span>confidently throughout most environments without independent access to the</span><br><span>information available to the sighted. Yet, technology affords us an</span><br><span>opportunity to enhance our travel experience. Sighted individuals have</span><br><span>access to an overwhelming amount of information that assists them as they</span><br><span>find their way from place to place outdoors and indoors through the use of</span><br><span>maps, kiosks, and signage, which although helpful, are inaccessible to</span><br><span>blind people. The information related to storefronts, travel gates, retail</span><br><span>sales, and personal safety, readily available to the sighted, remain</span><br><span>inaccessible to the blind.</span><br><span> Technology has already proven helpful in providing additional</span><br><span>environmental information that helps the sighted and the blind alike to</span><br><span>move from location to location, as demonstrated by the ever-growing</span><br><span>accuracy of talking GPS navigation systems. Many blind people benefit from</span><br><span>an assortment of apps and devices that use these to provide environmental</span><br><span>information, which assists them to navigate more independently and</span><br><span>efficiently throughout their neighborhoods, across the country, and around</span><br><span>the world. The audible instructions, "Move to the far right lane. In 800</span><br><span>feet, turn right onto St. Paul Street," "Pothole ahead," and "Left lane</span><br><span>closed," almost makes it seem possible for a blind person to drive today.</span><br><span>Unfortunately, GPS technology has proven to be ineffective for use within</span><br><span>enclosed environments because these block the satellite signals and thereby</span><br><span>makes this technology ineffective indoors.</span><br><span> Our National Federation of the Blind Indoor Navigation Challenge is a</span><br><span>research partnership initiative to foster the development of devices or</span><br><span>systems that the blind can use to obtain more useful information about the</span><br><span>indoor environments in which we travel, such as schools, airports,</span><br><span>hospitals, and shopping malls. These devices are not a substitute for the</span><br><span>acquisition of good travel skills. They are meant to be a complement, an</span><br><span>additional tool that enhances the travel experience of an independent</span><br><span>traveler by providing access to environmental information currently</span><br><span>unavailable nonvisually.</span><br><span> Through our initiative, we foster a true partnership between blind</span><br><span>people and nonvisual wayfinding technology experts to spur the development</span><br><span>of accessible navigation tools that are designed using universal access</span><br><span>principles. We have engaged the expertise of Mr. Mike May to administer our</span><br><span>National Federation of the Blind Indoor Navigation Challenge. Mr. May, as</span><br><span>president and founder of Sendero Group, has had extensive experience with</span><br><span>outdoor navigation since 1994, and he possesses a broad depth of knowledge</span><br><span>about a variety of accessible orientation and navigation systems.</span><br><span> We have engaged over thirty NFB Indoor Navigation Challenge partners,</span><br><span>representing universities and private businesses, and many have already</span><br><span>committed to partnering with us toward the development of indoor navigation</span><br><span>devices or systems that will eventually have commercial applications. They</span><br><span>are attempting to address the problem in a variety of creative ways that</span><br><span>take advantage of beacon technologies, remote vision, image recognition,</span><br><span>crowd sourcing, and existing infrastructure.</span><br><span> We seek to leverage the expertise and life experience of blind people</span><br><span>throughout the research, development, and testing of accessible indoor</span><br><span>navigation systems. By working to provide information, resources, and</span><br><span>opportunities to all of our NFB Indoor Navigation Challenge participants,</span><br><span>we hope to create an incubator for indoor navigation research and best</span><br><span>practices, where natural partnerships and mutually beneficial</span><br><span>collaborations will be identified and developed. To that end, on November</span><br><span>30 through December 1, 2015, we hosted a summit with the following five</span><br><span>Indoor Navigation Challenge partners:</span><br><span></span><br><span> . Boni, Loud Steps</span><br><span> . <a href="http://indoo.rs">Indoo.rs</a>, LowViz Guide</span><br><span> . Radius Networks</span><br><span> . UMass Amherst, PERCEPT</span><br><span> . Wina</span><br><span></span><br><span> These companies are using innovative approaches to provide nonvisual</span><br><span>access to environmental information in creative ways that take advantage of</span><br><span>Near Field Communications (NFC), beacon, and wide-band technologies. During</span><br><span>our summit, we set up beacon technology throughout the fourth floor of our</span><br><span>Jernigan Institute, and two of our participants provided real-time</span><br><span>demonstrations of their nonvisual wayfinding technology. Generally the</span><br><span>devices were accurate to within ten feet of their reported location. One of</span><br><span>the companies reports to be using ultra-wideband technology, which is</span><br><span>accurate to one foot, but more expensive. The accuracy of the other</span><br><span>solutions is anticipated to continue to improve as the technologies are</span><br><span>refined.</span><br><span> During the summit, each participant gave a presentation and answered</span><br><span>questions about their specific technologies from members of our Access</span><br><span>Technology staff. Although there were similarities in implementation, each</span><br><span>technology had a unique approach to providing nonvisual access. Some used</span><br><span>audio output; others used audio and vibra-tactile output. The amount of</span><br><span>navigation information made available to the user also varied between</span><br><span>technologies. Some of the solutions offered walking instructions, others</span><br><span>provided information about points of interests throughout the indoor</span><br><span>environment, while some provided both. Our evaluation team assessed each</span><br><span>solution from the perspective of potential users while taking into</span><br><span>consideration a variety of travel skills and technological proficiencies.</span><br><span>We leave it to our partners to decide whether or not they share the advice</span><br><span>we provided, or to use it to establish a competitive edge. The most</span><br><span>valuable recommendation we offered was for the developer to provide the</span><br><span>ability for the user to customize the amount of information provided by the</span><br><span>system so that it could best meet the needs of the individual user.</span><br><span> Some of our partners have already begun installing their wayfinding</span><br><span>solutions in various public spaces, retail establishments, conferences, and</span><br><span>both commercial and public transportation venues. With the aggressive</span><br><span>mainstream implementation of varying navigation apps and devices throughout</span><br><span>a host of venues, our NFB Indoor Navigation Challenge has already begun</span><br><span>facilitating collaboration among our partners, promoting the development of</span><br><span>a more seamless solution. Boni offered to let <a href="http://indoo.rs">Indoo.rs</a> use their NFB</span><br><span>beacons. PERCEPT offered to let others take advantage of their software to</span><br><span>generate audio walking instructions. Sendero may use an SDK [software</span><br><span>development kit] from Loud Steps in the Seeing Eye GPS app. Radius</span><br><span>considered working with Boni to provide a nonvisual wayfinding solution for</span><br><span>the 2016 Consumer Electronic Show (CES). Unfortunately this did not come</span><br><span>together in time for this year's conference, but perhaps, as a result of</span><br><span>this collaboration, the 2017 CES will have accessible indoor navigation</span><br><span>technology available. We will continue to encourage communication with and</span><br><span>among our existing NFB Indoor Navigation Challenge partners and work to</span><br><span>recruit additional challenge participants.</span><br><span> Mr. May, with his years of experience in nonvisual wayfinding</span><br><span>technology, has been a tremendous asset in our NFB Indoor Navigation</span><br><span>Challenge initiative. His technological expertise has proven to be</span><br><span>essential to our progress. We will be bringing greater awareness to our</span><br><span>project by giving a presentation on the NFB Indoor Navigation Challenge at</span><br><span>the 2016 CSUN conference in March.</span><br><span> There are many technical challenges that remain for our partners to</span><br><span>address, and direct communication between our experts and their project</span><br><span>engineers will result in the mutually beneficial outcome of effective,</span><br><span>nonvisually accessible wayfinding technologies.</span><br><span> As an organization comprised of individuals who would directly benefit</span><br><span>from the tools developed through this effort, the National Federation of</span><br><span>the Blind remains committed to ensuring the aggressive marketing,</span><br><span>mainstream implementation, ongoing innovation, and potential</span><br><span>commercialization of these technologies. The annual convention of the</span><br><span>National Federation of the Blind, with over 2,500 blind people in</span><br><span>attendance, is clearly the ideal venue for testing and demonstrating the</span><br><span>leading indoor navigation systems. Stay tuned for announcements of our</span><br><span>national convention plans.</span><br><span> The National Federation of the Blind Indoor Navigation Challenge is a</span><br><span>research initiative of the National Federation of the Blind Jernigan</span><br><span>Institute, the premier research and training institute developed and</span><br><span>directed by blind people, that applies the collective knowledge and life</span><br><span>experience of the blind toward the development of innovative solutions to</span><br><span>the barriers faced by blind people. Interested individuals and potential</span><br><span>research partners should contact us at <<a href="mailto:indoornav at nfb.org">indoornav at nfb.org</a>>.</span><br><span>[Pullout Quote: National Federation of the Blind Indoor Navigation</span><br><span>Challenge <<a href="http://www.nfb.org/indoornav">www.nfb.org/indoornav</a>>]</span><br><span> ----------</span><br><span>[PHOTO CAPTION: Justin Salisbury]</span><br><span> Dissecting the Value of Diversity</span><br><span> by Justin Salisbury</span><br><span></span><br><span> From the Editor: Originally from Connecticut, Justin Salisbury has</span><br><span>traveled around the eastern half of our country in his pursuit of</span><br><span>education. He has participated in many initiatives for equality and social</span><br><span>inclusion, both inside and outside the National Federation of the Blind. He</span><br><span>writes here about some of the concepts he has encountered in this work and</span><br><span>explores the spaces where minority classifications intersect. Here is what</span><br><span>he has to say:</span><br><span></span><br><span> I was talking with a longtime friend from our Puerto Rico affiliate</span><br><span>about our career futures. He wants to be a teacher of the blind, and I told</span><br><span>him that we would love to have him in Connecticut. When he asked why, I</span><br><span>told him it was because he was from the island. For those who don't know,</span><br><span>the state of Connecticut has a very large Puerto Rican population,</span><br><span>especially in the eastern half of the state. I stopped myself immediately</span><br><span>and thought about what I had said. The demands of our schedules pulled us</span><br><span>away from each other before we could carry the conversation further, and I</span><br><span>wished instantly that they had not. I had made a mistake by telling him</span><br><span>that we would want him because he was Puerto Rican. His value comes from</span><br><span>much more than his ethnic background, and I had wrongly communicated to him</span><br><span>that it was his primary credential to contribute.</span><br><span> It has become fashionable to try to make organizations as diverse as</span><br><span>possible. I think it is wonderful for organizations to have this goal, but</span><br><span>I think careful reflection on the reasoning for the diversity push is</span><br><span>important. In the organized blind movement we are making strides to become</span><br><span>more diverse and have more diverse populations represented in our</span><br><span>membership and leadership. I have discussed diversity themes with many</span><br><span>great minds, some of whom are Federationists, and I am writing to share</span><br><span>what I have learned.</span><br><span> I often hear people in many organizations, including ones that have</span><br><span>nothing to do with blindness, emphasize the desire to have leadership and</span><br><span>membership from multicultural backgrounds. This includes race, ethnicity,</span><br><span>religion, gender, sexual orientation, disability, and the like. There is</span><br><span>value to this goal, but there are potential pitfalls in the description and</span><br><span>implementation thereof.</span><br><span> I am a blind person, and I am also Canadian First Nations, which we</span><br><span>often call "Native American" here in the United States. I don't have every</span><br><span>kind of minority status, but I do have two that are relatively uncommon. A</span><br><span>lot of people ask me to show up at things to represent one community or the</span><br><span>other. Whether or not people realize it, this communicates to me that my</span><br><span>value is generated by simply being blind or simply being First Nations. It</span><br><span>comes from something that I am rather than something that I do. It comes</span><br><span>from something I did not earn instead of something that I earned. The</span><br><span>process of maintaining this value is simple: stay alive. The capacity to</span><br><span>decrease this value is nullified; no level of laziness can take it away. Is</span><br><span>increasing my value possible? It must be, but so much focus on that</span><br><span>unearned value tends to lead people to take harbor within it. Society does</span><br><span>it to us, and we often do it to each other. Just as we don't mean it or</span><br><span>maybe don't realize it, we can give the benefit of the doubt to the rest of</span><br><span>society that their intentions were not malicious. Dr. tenBroek taught us</span><br><span>that we must ensure that our road to Hell is not paved with other people's</span><br><span>good intentions. Here, if we are not careful, we can pave a similar road</span><br><span>for some of our members, thus affecting all of our members.</span><br><span> When I was in my doctoral program at the University of Wisconsin-</span><br><span>Madison, I planned to focus publicly on only two things: academics and the</span><br><span>National Federation of the Blind. That lasted until I was spotted by other</span><br><span>Native American students, and I was recruited into Wunk Sheek, the broad</span><br><span>Native American organization on campus. At our meetings we would often hear</span><br><span>that some event or club reached out to us, asking us to come represent the</span><br><span>Native American community. Our value at those events and activities was</span><br><span>inherent to our race and not to ways that we could present or actively</span><br><span>contribute. It was important for us to extend our coordinated support only</span><br><span>when it helped us grow. As the National Federation of the Blind's Executive</span><br><span>Director Mark Riccobono, who is now our President, taught me at a</span><br><span>leadership event in Wisconsin, it is important to focus specifically on</span><br><span>doing the things that build our railroad. I was proud to be able to</span><br><span>contribute that wisdom to Wunk Sheek because of what a Federation leader</span><br><span>had taught me. If Wunk Sheek were to go out for everything, our purpose</span><br><span>would become that of condiments for everyone else's burgers, and we would</span><br><span>not be taught to be contributors beyond providing our diversity itself.</span><br><span> What some organizations used to call "underserved populations,"</span><br><span>increasingly more organizations today call "underrepresented populations."</span><br><span>I like this shift in our society and am not surprised that we see this</span><br><span>valuable transition in rhetoric led by universities. I attended the</span><br><span>University of Wisconsin on a fellowship for underrepresented ethnic</span><br><span>minority students in the College of Agriculture and Life Sciences; this</span><br><span>program has been used as a model for many others. It was always</span><br><span>communicated to us that we were expected to step up and be leaders in our</span><br><span>fields, and many of us did. I personally am much more likely to join an</span><br><span>organization that tells me that I have something to contribute than one</span><br><span>that tells me that I need to be served by their greatness. "Underserved"</span><br><span>identifies the population as one primarily to be served rather than</span><br><span>represented. In Jim Omvig's book, Freedom for the Blind, we learn that one</span><br><span>of the most important characteristics of achieving first-class status is</span><br><span>giving back. It follows that, if a population is viewed primarily as a</span><br><span>recipient of the services of another, that population does not have first-</span><br><span>class status. If we are systematically viewing subgroups of our movement as</span><br><span>second-class within our movement, we are marginalizing that population much</span><br><span>the way that the blind are marginalized in the general public. If this is</span><br><span>the case, we are not capitalizing on the full potential of those</span><br><span>populations to contribute to our movement. It may be easy to misunderstand</span><br><span>me here; I am not saying that democratically-elected leaders from</span><br><span>privileged social strata cannot adequately represent members from</span><br><span>traditionally marginalized social strata. The National Federation of the</span><br><span>Blind represents all blind people; this is true. It is also true that</span><br><span>diverse backgrounds and sets of experiences in the leadership of our</span><br><span>movement equip those leaders who intend to use them to connect and work</span><br><span>with individuals with similarly diverse backgrounds and sets of</span><br><span>experiences. I expect that many of us would agree that the true cross</span><br><span>section of society that blindness affects is not yet perfectly represented</span><br><span>in our membership.</span><br><span> We all know what it is to be the token blind person. We know when</span><br><span>someone is inviting us to participate in something solely to draw the</span><br><span>appearance that the program or activity in question is inclusive to blind</span><br><span>people or people with disabilities. We know that our value in those</span><br><span>situations is largely perceived to derive from the fact that we are</span><br><span>embellishing the status of those who are really participating with the</span><br><span>credit of charitably including someone with our disability. When the</span><br><span>reporters want to take our picture with the elected official or keynote</span><br><span>speaker after waiting for all the other members of the public to go through</span><br><span>the line, we know why they do it. They want to report to the world that our</span><br><span>disability is there as a part of their program. They are seldom truly</span><br><span>pursuing us for our credentials or our capacity. If we are not careful, and</span><br><span>if we do not stay close to the National Federation of the Blind for</span><br><span>recalibration, in the words of Jennifer Dunnam, we can come to believe that</span><br><span>our value in that situation is not defined by who we are but by the fact</span><br><span>that we are blind.</span><br><span> The public does it to us, and it is done with good intentions. We</span><br><span>cannot allow our road to Hell to be paved with these good intentions, so we</span><br><span>must not pave that road for anyone. If we pave the road to reduced</span><br><span>productivity for blind people who also represent traditionally</span><br><span>underprivileged social strata, we are teaching them to sit back and to</span><br><span>allow their value to be generated by their characteristics. If we</span><br><span>systematically reduce the productivity of those individuals, we, the</span><br><span>nation's blind, cannot access the true value that they have. It follows</span><br><span>then that we are reducing our own productivity by reducing it for others</span><br><span>who contribute to ours. Just as we ask others to do for us, we should do</span><br><span>for others. We must find ways to break down barriers to the full</span><br><span>participation in our movement to all blind people and insist that nobody be</span><br><span>a token. The potential is too great to squander.</span><br><span> We are working to ensure that social strata do not inhibit a blind</span><br><span>person from participating to his or her fullest potential in our movement,</span><br><span>but we also don't want the strata to become branded as the reason for that</span><br><span>person to participate, distracting us all from his or her true potential.</span><br><span>When great leaders arise in our movement, it is their contributions that</span><br><span>make them great, not the diversity cards in their hands, even if they have</span><br><span>a killer hand.</span><br><span> Sometimes someone from an underrepresented population can have the</span><br><span>ability to connect with populations who are not being effectively reached.</span><br><span>In my case I'm sure there are some blind Native Americans whom I may be</span><br><span>able to reach in ways that non-native members may not be able to reach</span><br><span>because of my background. There are other components of my identity that</span><br><span>could also function the same way. Maybe it is in connecting with people who</span><br><span>come from towns so small that the only danger outdoors at night comes from</span><br><span>bears and coyotes. Maybe it is with people who grew up in poorer</span><br><span>communities right next to wealthier ones. Maybe it is in working with</span><br><span>students who are the first person in their family to ever pursue higher</span><br><span>education. These factors are also sources of diversity and can create</span><br><span>opportunities to reach more people. In our movement there is a value to</span><br><span>being able to connect with people who might not otherwise feel connected.</span><br><span>Maybe more visibly contributing Latino members can help us reach more</span><br><span>Latinos in the general public, a goal that we have since they are the</span><br><span>largest minority group in our country.</span><br><span> Sometimes, there are benefits that come from being an active part of</span><br><span>the National Federation of the Blind that really have nothing to do with</span><br><span>blindness. We are a family and a community of people who work hard and care</span><br><span>about each other. The more we interact with people from all types of</span><br><span>backgrounds, the more we can demystify those groups and become comfortable</span><br><span>with them. For some of us the Federation may be the only place where we</span><br><span>interact with someone of a particular religion or country of origin. I know</span><br><span>that this is sometimes the case for me. Even better, maybe the Federation</span><br><span>is the only or primary place that we can have positive interactions with</span><br><span>someone from a particular background. Maybe it is the most positive type of</span><br><span>interaction. I run into much hostility from African-Americans on a daily</span><br><span>basis, but the very positive relationships that I have with people like</span><br><span>Anil Lewis, Roland Allen, and Ever Lee Hairston help me keep my sanity and</span><br><span>faith in that group. This helps me be able to work with a population that</span><br><span>spans far beyond the blind community, and it strengthens me as a person. We</span><br><span>need blind people to be as strong, capable, and confident as possible in</span><br><span>order for us to achieve first-class status. We are blind people, and we are</span><br><span>simply people too. Our Federation family has a unique ability to serve</span><br><span>these types of roles in our lives because of how emotionally powerful our</span><br><span>work is. Learning to believe in ourselves and working together to raise the</span><br><span>expectations of blind people, transforming dreams into reality, is not</span><br><span>something that we do with no emotional benefits. The Federation strengthens</span><br><span>us even more than we strengthen it, but it can do so only if we keep</span><br><span>feeding the fire.</span><br><span> When people ask us to show up and be blind for them, they are</span><br><span>teaching us that our value comes from being blind and showing up. Let us be</span><br><span>careful not to tell any potential contributor to our movement that his or</span><br><span>her potential value is so limited. Together, we can find out what we can</span><br><span>truly achieve. We can push the limits and capitalize on the talents and</span><br><span>enthusiasm of everyone who wants to contribute.</span><br><span> ----------</span><br><span> Consider a Charitable Gift</span><br><span></span><br><span> Making a charitable gift can be one of the most satisfying</span><br><span>experiences in life. Each year millions of people contribute their time,</span><br><span>talent, and treasure to charitable organizations. When you plan for a gift</span><br><span>to the National Federation of the Blind, you are not just making a</span><br><span>donation; you are leaving a legacy that insures a future for blind people</span><br><span>throughout the country. Special giving programs are available through the</span><br><span>National Federation of the Blind (NFB).</span><br><span></span><br><span></span><br><span>Points to Consider When Making a Gift to the National Federation of the</span><br><span>Blind</span><br><span></span><br><span> . Will my gift serve to advance the mission of the NFB?</span><br><span> . Am I giving the most appropriate asset?</span><br><span> . Have I selected the best way to make my gift?</span><br><span> . Have I considered the tax consequences of my gift?</span><br><span> . Have I sought counsel from a competent advisor?</span><br><span> . Have I talked to the NFB planned giving officer about my gift?</span><br><span></span><br><span>Benefits of Making a Gift to the NFB</span><br><span> . Helping the NFB fulfill its mission</span><br><span> . Receiving income tax savings through a charitable deduction</span><br><span> . Making capital gain tax savings on contribution of some appreciated</span><br><span> gifts</span><br><span> . Providing retained payments for the life of a donor or other</span><br><span> beneficiaries</span><br><span> . Eliminating federal estate tax in certain situations</span><br><span> . Reducing estate settlement cost</span><br><span></span><br><span>Your Gift Will Help Us</span><br><span> . Make the study of science and math a real possibility for blind</span><br><span> children</span><br><span> . Provide hope and training for seniors losing vision</span><br><span> . Promote state and chapter programs and provide information that will</span><br><span> educate blind people</span><br><span> . Advance technology helpful to the blind</span><br><span> . Create a state-of-the-art library on blindness</span><br><span> . Train and inspire professionals working with the blind</span><br><span> . Provide critical information to parents of blind children</span><br><span> . Mentor blind people trying to find jobs</span><br><span>Your gift makes you a part of the NFB dream!</span><br><span> ----------</span><br><span> The Kenneth Jernigan Convention Scholarship Fund</span><br><span> by Allen Harris</span><br><span></span><br><span> From the Editor: Allen Harris is the chairman of the Kenneth Jernigan</span><br><span>Fund Committee and was one of the people who came up with the idea of</span><br><span>honoring our former president and longtime leader by establishing a program</span><br><span>to promote attendance at the national convention, where so much inspiration</span><br><span>and learning occur. Here is Allen's announcement about the 2016 Kenneth</span><br><span>Jernigan Convention Scholarship Fund Program:</span><br><span></span><br><span> Have you always wanted to attend an NFB annual convention but have</span><br><span>not done so because of the lack of funds? The Kenneth Jernigan Convention</span><br><span>Scholarship Fund invites you to make an application for a scholarship</span><br><span>grant. Perhaps this July you too can be in the Rosen Shingle Creek Hotel in</span><br><span>Orlando, Florida, enjoying the many pleasures and learning opportunities at</span><br><span>the largest and most important yearly convention of blind people in the</span><br><span>world.</span><br><span> The three biggest ticket items you need to cover when attending an</span><br><span>NFB national convention are the roundtrip transportation, the hotel room</span><br><span>for a week, and the food (which tends to be higher priced than at home). We</span><br><span>attempt to award additional funds to families, but, whether a family or an</span><br><span>individual is granted a scholarship, this fund can only help; it won't pay</span><br><span>all the costs. Last year most of the sixty grants were in the range of $400</span><br><span>to $500 per individual.</span><br><span> We recommend that you find an NFB member as your personal convention</span><br><span>mentor, someone who has been to many national conventions and is able to</span><br><span>share money-saving tips with you and tips on navigating the extensive</span><br><span>agenda in the big hotel. Your mentor will help you get the most out of the</span><br><span>amazing experience that is convention week.</span><br><span></span><br><span> Who is eligible?</span><br><span> Active NFB members, blind or sighted, who have not yet attended an</span><br><span>NFB national convention because of lack of funding are eligible to apply.</span><br><span></span><br><span> How do I apply for funding assistance?</span><br><span> 1. You write a letter giving your contact information, and your local</span><br><span>NFB information, your specific amount requested, and then explain why this</span><br><span>is a good investment for the NFB. The points to cover are listed below.</span><br><span> 2. You contact your state president in person or by phone to request</span><br><span>his or her help in obtaining funding. Be sure to tell the president when to</span><br><span>expect your request letter by email, and mention the deadline.</span><br><span> 3. You (or a friend) send your letter by email to your state</span><br><span>president. He or she must add a president's recommendation and then email</span><br><span>both letters directly to the Kenneth Jernigan Convention Scholarship Fund</span><br><span>Committee. Your president must forward the two letters no later than April</span><br><span>15, 2016.</span><br><span></span><br><span> Your letter to Chairperson Allen Harris must cover these points:</span><br><span>.Your full name, and all your telephone numbers and label them-cell phone,</span><br><span>home, office, other person (if any).</span><br><span>.Your mailing address and, if you have one, your email address.</span><br><span>.Your state affiliate and state president; your chapter and chapter</span><br><span>president, if you attend a chapter.</span><br><span>.Your personal convention mentor, and provide that person's phone number.</span><br><span>.Your specific request:</span><br><span> Explain how much money you need from this fund to make this trip</span><br><span>possible for you. We suggest you consult with other members to make a rough</span><br><span>budget for yourself.</span><br><span></span><br><span> The body of your letter should answer these questions:</span><br><span> How do you currently participate in the Federation? Why do you want</span><br><span>to attend a national convention? What would you receive; what can you share</span><br><span>or give? You can include in your letter to the committee any special</span><br><span>circumstances you hope they will take into consideration.</span><br><span></span><br><span> When will I be notified that I am a winner?</span><br><span> If you are chosen to receive this scholarship, you will receive a</span><br><span>letter with convention details that should answer most of your questions.</span><br><span>The committee makes every effort to notify scholarship winners by May 15,</span><br><span>but you must do several things before that to be prepared to attend if you</span><br><span>are chosen:</span><br><span> 1. Make your own hotel reservation. If something prevents you from</span><br><span>attending, you can cancel the reservation. (Yes, you may arrange for</span><br><span>roommates of your own to reduce the cost.)</span><br><span> 2. Register online for the entire convention, including the banquet,</span><br><span>by May 31.</span><br><span> 3. Find someone in your chapter or affiliate who has been to many</span><br><span>conventions and can answer your questions as a friend and advisor.</span><br><span> 4. If you do not hear from the committee by May 15, then you did not</span><br><span>win a grant this year.</span><br><span></span><br><span> How will I receive my convention scholarship?</span><br><span> At convention you will be given a debit card or credit card loaded</span><br><span>with the amount of your award. The times and locations to pick up your card</span><br><span>will be listed in the letter we send you. The committee is not able to</span><br><span>provide funds before the convention, so work with your chapter and state</span><br><span>affiliate to assist you by obtaining an agreement to advance funds if you</span><br><span>win a scholarship and to pay your treasury back after you receive your</span><br><span>debit or credit card.</span><br><span> What if I have more questions? For additional information email the</span><br><span>chairman, Allen Harris, at <<a href="mailto:kjscholarships at nfb.org">kjscholarships at nfb.org</a>> or call his Baltimore,</span><br><span>Maryland, office at (410) 659-9314, extension 2415.</span><br><span> Above all, please use this opportunity to attend your first</span><br><span>convention on the national level and join several thousand active</span><br><span>Federationists in the most important meeting of the blind in the world. We</span><br><span>hope to see you in Orlando.</span><br><span></span><br><span> ----------</span><br><span> Court Renders Major Decision on the Practice of Paying Subminimum Wages to</span><br><span> Disabled Workers</span><br><span></span><br><span> From the Editor: Anyone who reads the Braille Monitor knows that we</span><br><span>have been engaged in an effort to get the Congress of the United States to</span><br><span>amend the Fair Labor Standards Act by phasing out section 14(c), a law</span><br><span>passed in 1938 which allows the payment of less than the minimum wage to</span><br><span>disabled workers. The executive branch took action in 2015 to see that</span><br><span>blind workers employed by federal contractors receive at least $10.10 an</span><br><span>hour. Now the third branch of government, the judiciary, has weighed in,</span><br><span>and we reprint here a significant decision arguing against the use of</span><br><span>section 14(c) and the procedures used by facilities that seek to take</span><br><span>advantage of its provisions at the expense of disabled workers. Throughout</span><br><span>this opinion the reader will find long-standing arguments made by the</span><br><span>National Federation of the Blind to be ones the judge arrives at through</span><br><span>observation, considerable thought, and the application of common sense. For</span><br><span>readability we have left out the footnotes, but anyone wishing a full copy</span><br><span>of the document can receive it in .pdf by writing to <<a href="mailto:gwunder at nfb.org">gwunder at nfb.org</a>>.</span><br><span> Here is what the National Federation of the Blind's director of legal</span><br><span>policy, Marc Maurer, has to say about the decision:</span><br><span> "We have received the attached decision from the administrative law</span><br><span>judge in the Seneca Re-Ad case. Three petitioners in a sheltered workshop</span><br><span>were being paid less than the minimum wage. The legal standard to permit</span><br><span>this is that the individuals be disabled for the work to be performed. The</span><br><span>judge determined that these petitioners are not so disabled, which leads to</span><br><span>the conclusion that the Fair Labor Standards Act was violated. I would</span><br><span>call this a substantial march of progress. The judge declared that there</span><br><span>has to be a connection between the disability and the diminution of</span><br><span>performance of a job task before subminimum wages are permitted. It is not</span><br><span>enough to allege disability. The workshop has the burden of demonstrating</span><br><span>that subminimum wages are justified, and this decision makes demonstrating</span><br><span>the connection much more difficult."</span><br><span> Here is the decision:</span><br><span></span><br><span>Issue Date: 02 February 2016</span><br><span></span><br><span>Case No.: 2016-FLS-3</span><br><span></span><br><span>In the Matter of:</span><br><span></span><br><span>Petition for Review of Special</span><br><span>Minimum Wage Rate Pursuant to</span><br><span>Section 14(c)(5)(A) of the Fair Labor</span><br><span>Standards Act by:</span><br><span></span><br><span>RALPH MAGERS, Petitioner,</span><br><span></span><br><span>and PAMELA STEWARD, Petitioner,</span><br><span></span><br><span>and MARK FELTON, Petitioner,</span><br><span></span><br><span>v.</span><br><span></span><br><span>SENECA RE-AD INDUSTRIES, INC., Respondent.</span><br><span></span><br><span>DECISION AND ORDER</span><br><span></span><br><span>I. INTRODUCTION</span><br><span></span><br><span> This case arises under Section 214(c) of the Fair Labor Standards Act</span><br><span>("Act"), 29 U.S.C.</span><br><span>§214(c).1 Ralph ("Joe") Magers, Pamela Steward, and Mark Felton</span><br><span>("Petitioners") are employees of Seneca Re-Ad Industries ("Respondent"),</span><br><span>which is located in Fostoria, Ohio. Each of the Petitioners has been</span><br><span>diagnosed with one or more developmental disabilities,2 and each receives</span><br><span>services from the Seneca County (Ohio) Board of Developmental Disabilities</span><br><span>("DD").3 Employment at Respondent's Fostoria manufacturing facility is one</span><br><span>of the services provided by DD.4</span><br><span> DD provides services to approximately 230 persons in Seneca County.5</span><br><span>Approximately 37 people are receiving DD services in the form of community</span><br><span>(competitive) employment. Approximately 120 persons work in DD's "sheltered</span><br><span>workshops" (now generally referred to as "community rehabilitation</span><br><span>programs"). Respondent is a not-for-profit corporation which has a contract</span><br><span>with DD to provide employment opportunities to DD's clients.6</span><br><span> At all relevant times, Respondent has held a Certificate issued by</span><br><span>the United States Department of Labor (a "Section 214(c) Certificate")</span><br><span>which has authorized Respondent to pay less than the minimum wage7 to</span><br><span>Petitioners for nearly all of the work they perform. In this action,</span><br><span>Petitioners seek a review of the special minimum wages paid to them.</span><br><span> Over the past 75 years, implementation and enforcement of the Fair</span><br><span>Labor Standards Act has defined the most fundamental relationships between</span><br><span>American employers and their employees. The 40-hour workweek, overtime pay,</span><br><span>and the near elimination of child labor have been woven into the fabric of</span><br><span>the modern workplace. Applicability of the Act to specific workplace</span><br><span>conditions continues to cause disagreement, and litigation under the Act</span><br><span>(and its state counterparts) remains a staple of federal and state court</span><br><span>dockets.</span><br><span> Our collective notions of disability, and in particular our notions of</span><br><span>how a disability might affect the ability of an individual to participate</span><br><span>in employment, have also changed dramatically over the past few decades.</span><br><span>Statutes such as the Americans with Disabilities Act have fundamentally</span><br><span>altered the ways in which employees with disabilities are able to find and</span><br><span>sustain competitive employment.</span><br><span> The instant case does not involve competitive employment. Nor, based</span><br><span>upon my review of the evidence at the hearing, does it really involve what</span><br><span>were once called "sheltered workshops." The Petitioners live independently</span><br><span>in the community. They have held competitive employment in the past. Each</span><br><span>of them brings valuable employment skills to the Respondent's modern</span><br><span>manufacturing facility every day. When working for Respondent, the</span><br><span>Petitioners participate in the production of products having commercial</span><br><span>value. Like American workers in competitive employment, Petitioners view</span><br><span>themselves partially through a lens of their labor. How and where they</span><br><span>work, and what they do in the workplace, and how they are compensated,</span><br><span>gives the Petitioners a significant portion of their identity.</span><br><span> The workplace relationship between Petitioners and Respondent is</span><br><span>complicated and is fundamentally different from competitive employment. A</span><br><span>few of the differences are: (1) Petitioners have voluntarily chosen to</span><br><span>participate in a Seneca County program for those with developmental</span><br><span>disabilities instead of pursuing competitive employment in the community.</span><br><span>By accepting disability services from Respondent, Petitioners have agreed</span><br><span>to accept the special minimum wages-far below minimum wage-which are</span><br><span>authorized by Section 214 of the Act and by the Section 214(c) Certificate</span><br><span>held by Respondent; (2) The manner in which the Petitioners' compensation</span><br><span>is calculated is neither easily comprehended nor transparent. In the</span><br><span>hearing of this case, the calculation of the so-called "commensurate wages"</span><br><span>paid to Petitioners was explained by an expert; (3) The Petitioner's</span><br><span>"personnel files" contain medical, social and psychological information</span><br><span>which would not be available to employers in the realm of competitive</span><br><span>employment; (4) Some of the jobs performed at Respondent's manufacturing</span><br><span>facility are designed to maximize employment opportunities for those with</span><br><span>developmental disabilities, rather than to maximize the output of goods in</span><br><span>a workday. This choice by Respondent maximizes the number of persons to</span><br><span>whom disability services might be provided by Seneca County. This choice by</span><br><span>Respondent does not maximize the amount of money any employee will see in</span><br><span>her paycheck. As Rodney Biggert, Division Manager of DD, explained:</span><br><span></span><br><span> Q. Okay. So let me circle back to that question of why not pay</span><br><span> minimum wage. And you said that, I believe, that you couldn't pay</span><br><span> minimum wage because you wanted to increase opportunities for workers</span><br><span> with disabilities, is that correct?</span><br><span></span><br><span></span><br><span> A. Correct.</span><br><span></span><br><span> Q. Can you explain what the connection is between-why subminimum</span><br><span> wage is necessary for you to create opportunity?</span><br><span></span><br><span></span><br><span> A. In the case of the Fostoria division, if our costs were to</span><br><span> increase to that extent-</span><br><span></span><br><span></span><br><span> JUDGE BELL: To what extent?</span><br><span></span><br><span></span><br><span> THE WITNESS: To the extent where we are paying every individual at</span><br><span> least minimum wage, it would be hard to retain that contract [with</span><br><span> Roppe Industries] without some large change in the way they do</span><br><span> business, which I mean-which by that, I mean automating a large</span><br><span> portion of what we do and eliminating at least half of the workforce.8</span><br><span></span><br><span> In Respondent's Fostoria workplace, Petitioner's wages are suppressed</span><br><span>by: (1) Section 214(c) of the Act, which authorizes special minimum wages</span><br><span>to be paid to those with disabilities; and (2) Petitioners' disabilities,</span><br><span>and how those disabilities might actually affect their ability to perform</span><br><span>in the workplace, but also how those disabilities are perceived by the</span><br><span>Petitioners and by others; and (3) Respondent's choice that the number of</span><br><span>employment opportunities which may be offered to the disabled in this</span><br><span>specific workplace will be given priority over the amount of compensation</span><br><span>paid to any individual disabled employee; and (4) the manner in which</span><br><span>higher- paying jobs are assigned to Petitioners; and (5) the manner in</span><br><span>which the Petitioner's commensurate wages are calculated; and (6) the</span><br><span>health of the labor market in Seneca County.</span><br><span> For the reasons explained below, I find that the special minimum</span><br><span>wages actually paid to the Petitioners are not justifiable given the nature</span><br><span>and extent of the Petitioner's respective disabilities. Respondent has</span><br><span>failed to demonstrate that the Petitioners are "impaired by a physical or</span><br><span>mental disability . . . for the work to be performed"9 by each Petitioner</span><br><span>at the Respondent's Fostoria, Ohio, manufacturing facility. By failing to</span><br><span>pay minimum wage to each of the Petitioners, Respondent has violated §206</span><br><span>of the Act.</span><br><span> For the reasons explained below, I also find the special minimum</span><br><span>wages actually paid to the Petitioners have not been appropriately</span><br><span>calculated. Respondent has failed to meet its burden to justify "the</span><br><span>propriety of [the] wage" paid to the Petitioners.10 By failing to pay</span><br><span>minimum wage to each of the Petitioners, Respondent has violated §206 of</span><br><span>the Act.</span><br><span> Each of these findings independently requires that I find in favor of</span><br><span>each Petitioner, and that I fashion an appropriate remedy for each of them.</span><br><span>For the reasons which follow, I will order that each of the Petitioners be</span><br><span>paid at least the Ohio minimum wage going forward, and I will award back</span><br><span>pay and liquidated damages to each of them. I will also award attorney fees</span><br><span>and reasonable litigation costs to Petitioners if such a remedy is</span><br><span>available.</span><br><span></span><br><span>II. PROCEDURAL HISTORY</span><br><span></span><br><span> On November 17, 2015, Petitioners submitted a "Petition for Review of</span><br><span>Wages" to the Wage and Hour Division of the United States Department of</span><br><span>Labor. On November 25, 2015, the Wage and Hour Division referred the matter</span><br><span>to the Office of Administrative Law Judges. The case was assigned to me on</span><br><span>December 16, 2015. On that date, I conducted a telephone conference with</span><br><span>counsel, and thereafter issued an Order: (1) setting the date and location</span><br><span>of the formal hearing; (2) establishing a discovery schedule, and (3)</span><br><span>requiring Respondent to immediately produce to Petitioners the information</span><br><span>described in 29 C.F.R. §525.16.11</span><br><span>Pursuant to the Act12 and Department of Labor regulations,13 I was required</span><br><span>to schedule and conduct a hearing on an expedited basis. The formal hearing</span><br><span>was held in a public courtroom at the Seneca County Court of Common Pleas</span><br><span>in Tiffin, Ohio, on January 4, 5, 6, 7 and 8, 2016. On the morning of</span><br><span>January 6, I was able (along with counsel) to visit the manufacturing</span><br><span>facility in Fostoria, Ohio, where each of the Petitioners is now employed.</span><br><span>While there, I was able to observe production activities at Respondent's</span><br><span>facility.</span><br><span> Petitioners' Exhibits 1 through 18 and Respondent's Exhibits 1</span><br><span>through 24 and A1 through D1 were admitted without objection during the</span><br><span>hearing. On January 18, 2016, the parties filed post-hearing briefs. I have</span><br><span>reviewed a transcript of the hearing in the preparation of this Decision</span><br><span>and Order.14</span><br><span></span><br><span>III. THE PETITIONERS</span><br><span></span><br><span> Petitioners work at Respondent's manufacturing facility for a variety</span><br><span>of reasons. Some of these reasons are easily understood-such as the</span><br><span>difficulty finding transportation in a largely rural county. Some of the</span><br><span>reasons involve the types of available jobs for unskilled laborers. Some</span><br><span>reasons are connected to the Petitioners' disabilities. Petitioners'</span><br><span>expert, Dr. Fredric Schroeder, testified about the relationship of these</span><br><span>factors:</span><br><span></span><br><span> JUDGE BELL: What, if anything, do you understand to be the nature of</span><br><span> the labor market here in Tiffin or Seneca County, generally?</span><br><span></span><br><span></span><br><span> THE WITNESS: Oh, I know that this is a college town; I know that that</span><br><span> stimulates certain kinds of industry, business. But also I'm assuming,</span><br><span> and I'm not intricately familiar with this community, but I'm</span><br><span> assuming, being fairly rural, there's probably some agriculture. I</span><br><span> have not done a labor market survey of this area.</span><br><span></span><br><span></span><br><span> JUDGE BELL: Do you know whether there are other simple assembly</span><br><span> positions that are available to those in the community who may wish to</span><br><span> have those jobs and who may be able to get transportation to those</span><br><span> jobs or is there a shortage of those kinds of jobs? If you know.</span><br><span></span><br><span></span><br><span> THE WITNESS: I haven't done a labor market survey. I know there's some</span><br><span> light industry in the area. So I don't know. But really, the</span><br><span> individuals, based on the conversations that I've had with them, I</span><br><span> probably would not be exploring the same type of work within an</span><br><span> integrated setting. I'd be looking, I think, for different types of</span><br><span> employment options for them.</span><br><span></span><br><span></span><br><span> JUDGE BELL: Such as?</span><br><span></span><br><span></span><br><span> THE WITNESS: Well, again, it's an exploratory process. You start with</span><br><span> the individual's interests, but you have to factor in all sorts of-</span><br><span> like transportation. But also there's a huge social dynamic around</span><br><span> disability and that social dynamic means, for some individuals, they</span><br><span> can go into an integrated setting and function very well without any</span><br><span> particular supports where other individuals, just to put it bluntly,</span><br><span> they've been told for a lifetime that they're inferior, that they</span><br><span> can't work at a competitive level, that they're slow, they're</span><br><span> inaccurate, and they may need a good bit of support.</span><br><span> So it's not-what you're trying to do in rehabilitation is</span><br><span> maximize employment, see how far you can take the individual in</span><br><span> finding a job that's a good fit for them, makes-that they enjoy, that</span><br><span> they're good at, that they're comfortable with. So all of the skills</span><br><span> parts just kind of help inform you and then you look at the community,</span><br><span> you look at the available jobs, you meet with employers, you look at</span><br><span> the employment setting, the receptivity of the coworkers, there's just</span><br><span> so many tangible and intangibles. But I would describe the process as</span><br><span> an exploration, and with each individual it will vary a great deal in</span><br><span> how much support they may need.15</span><br><span></span><br><span> Ralph ("Joe") Magers applied for DD services on November 3, 2009.</span><br><span>According to the materials in his file,16 Mr. Magers is legally blind. Mr.</span><br><span>Magers" OEDI17 score sheet finds substantial functional limitations in the</span><br><span>following areas: mobility, self-care, self-direction, capacity for</span><br><span>independent living and economic self-sufficiency.18 He attended the Ohio</span><br><span>School for the Blind, where it was determined that his "measured mental</span><br><span>ability . . . is within the superior range."19 The Ohio School for the</span><br><span>Blind noted that "Joe is a very hard, conscientious worker."20 Mr. Magers</span><br><span>has worked for Respondent for approximately six years.21 Although legally</span><br><span>blind, he has sufficient sight to be able to get around in familiar</span><br><span>areas.22 He has some difficulty differentiating between items of similar</span><br><span>color, and he needs larger print in order to be able to read.23 He lives by</span><br><span>himself.24 He does not drive. He pays his bills, shops for his groceries,</span><br><span>and does his laundry.25 He has held some competitive employment in the</span><br><span>past, most notably a three-year period of employment with Ticketmaster. He</span><br><span>also worked in a call center. In these jobs, Mr. Magers earned more than</span><br><span>minimum wage.26</span><br><span> As a result of his visual impairment, Mr. Magers has transportation</span><br><span>issues. He describes his travel methods:</span><br><span></span><br><span> Q. Okay. And do you drive?</span><br><span></span><br><span></span><br><span> A. No.</span><br><span></span><br><span></span><br><span> Q. How do you get around Tiffin?</span><br><span></span><br><span></span><br><span> A. I mostly walk. I will take SCAT transportation from time to</span><br><span> time, and maybe if I had a little more money, I'd take a cab now and</span><br><span> then.</span><br><span></span><br><span></span><br><span> Q. And what is SCAT transportation?</span><br><span></span><br><span></span><br><span> A. That's more or less our version of-Seneca County's version of</span><br><span> Paratransit. It probably operates under a bit different rules since</span><br><span> there are no fixed routes.</span><br><span></span><br><span></span><br><span> Q. Okay. And does it operate during certain hours?</span><br><span></span><br><span></span><br><span> A. Yes. Weekdays, it operates from quite early in the morning until-</span><br><span> I think they want to be over and done by 6:00. So most generally they</span><br><span> want-they try to make it more like it's 5:00. But if you're doing a</span><br><span> special thing, you can-you'll have services a little past 5:00.27</span><br><span></span><br><span> Pamela Steward applied for DD services on May 11, 2009.28 She has</span><br><span>worked at Respondent's Fostoria manufacturing facility for nearly six</span><br><span>years. She is blind in her right eye, but has fairly good vision in her</span><br><span>left eye.29 She does not drive. She lives alone and is responsible for</span><br><span>running her household.30 She has also been diagnosed with an intellectual</span><br><span>disability.31 She has held some competitive employment in the past, but was</span><br><span>out of the labor market immediately after graduating from high school and</span><br><span>for many years thereafter while raising a family.32 Her OEDI form finds</span><br><span>that she has substantial functional limitations in the areas of self-care,</span><br><span>self-direction, capacity for independent living, learning and economic self-</span><br><span>sufficiency.33 A hand-written document in her file states:</span><br><span> Pam can accomplish most daily living skills. She does not need</span><br><span>assistance, however, with money/budgeting, laundry, medication, and</span><br><span>transportation. Social skills: Pam appears friendly. She has been in a long-</span><br><span>term marriage and has contact with her family on a regular basis. Pam has</span><br><span>an adult daughter. Physical: Pam has a diagnosis of depression. No</span><br><span>limitations per her physical. Vocational: very limited past employment at a</span><br><span>tomato farm. She could not keep up with production demands.34</span><br><span> Ms. Steward has chosen to work at the Fostoria manufacturing facility</span><br><span>mostly because of availability of transportation, but also because she</span><br><span>feels more comfortable there than she would in competitive employment:</span><br><span></span><br><span> The only reason I do choose to work there is because of</span><br><span> transportation. I'm able to get along with the people better there.</span><br><span> They don't act like they're better than me. I mean, the employees that</span><br><span> do work there, we're all in competition and we pretty well get</span><br><span> along.35</span><br><span></span><br><span> Mark Felton has worked for Respondent for approximately four years.36</span><br><span>He has been diagnosed with Asperger's disorder. He has held a small amount</span><br><span>of competitive employment in the past.37 He graduated from high school in</span><br><span>2011.38 He has held an Ohio driver's license since 2014, although he does</span><br><span>not have a car. He lives at home with his parents.39</span><br><span></span><br><span>IV. THE RESPONDENT</span><br><span></span><br><span> The Seneca County Board of Mental Retardation (predecessor of DD) was</span><br><span>established in 1967.40 At some point thereafter, Respondent and Roppe</span><br><span>Industries entered into a partnership and established a workshop in</span><br><span>Fostoria, Ohio.41 Roppe Industries is a Fostoria-based company which</span><br><span>manufactures rubber flooring and other products.42 In 1989, Respondent's</span><br><span>Fostoria workshop was moved into a factory purchased by Roppe Industries.43</span><br><span>The Fostoria facility performs many jobs under a contract with Roppe</span><br><span>Industries.44 A representative of Roppe Industries holds a seat on the</span><br><span>Board of Respondent.45</span><br><span> Respondent's Fostoria facility is in operation between 8:30 am and</span><br><span>3:15 pm on weekdays. All employees are required to spend approximately one</span><br><span>hour of the workday in an unpaid educational or social "activity." There is</span><br><span>a 30-minute lunch period, and two 15-minute breaks during the workday. It</span><br><span>is thus difficult for an employee at Fostoria to perform more than about 5</span><br><span>hours per day of paid work.</span><br><span></span><br><span>V. THE WORK PERFORMED BY PETITIONERS</span><br><span></span><br><span> In order to determine whether the payment of a "special minimum wage"</span><br><span>is justified, a number of criteria are considered:</span><br><span></span><br><span> (1) The nature and extent of the disabilities of the individuals</span><br><span> employed as these disabilities relate to the individuals'</span><br><span> productivity;</span><br><span></span><br><span></span><br><span> (2) The prevailing wages of experienced employees not disabled for</span><br><span> the job who are employed in the vicinity in industry engaged in work</span><br><span> comparable to that performed at the special minimum wage rate;</span><br><span></span><br><span></span><br><span> (3) The productivity of the workers with disabilities compared to</span><br><span> the norm established for nondisabled workers through the use of a</span><br><span> verifiable work measurement method (see §525.12(h)) or the</span><br><span> productivity of experienced nondisabled workers employed in the</span><br><span> vicinity on comparable work; and</span><br><span></span><br><span></span><br><span> (4) The wage rates to be paid to the workers with disabilities for</span><br><span> work comparable to that performed by experienced nondisabled</span><br><span> workers.46</span><br><span></span><br><span> At Respondent's Fostoria facility, a significant amount of the work</span><br><span>performed is finishing and packaging product from Roppe Industries. By way</span><br><span>of example, at Respondent's Fostoria manufacturing facility, pieces of</span><br><span>rubber flooring manufactured by Roppe Industries are cut to appropriate</span><br><span>size, the pieces have a hole drilled in them, and the pieces are sent</span><br><span>through a printing process where each piece has identifying information</span><br><span>printed onto it. Each of these cutting, drilling and printing jobs is paid</span><br><span>on a piece-rate basis, and the Respondents each have experience performing</span><br><span>these various jobs.</span><br><span> When performing jobs paid on a piece-rate basis, each of the</span><br><span>Petitioners occasionally has been able to earn more than minimum wage. For</span><br><span>example, Mark Felton was able to earn more than $14.00 per hour on</span><br><span>September 4, 2015, on a press machine that punches out rubber grommets from</span><br><span>a blank (the "Click 5 machine").47 On October 16, 2015, Joe Magers was able</span><br><span>to earn nearly $9.00 per hour on a piece-rate job called "Affix Screw and</span><br><span>Remove."48 Pamela Steward was able to earn $11.84 per hour on a drill press</span><br><span>on October 2, 2015.49 The Ohio minimum wage during this period was $8.10.</span><br><span> Mr. Biggert described the opportunities for community employment:</span><br><span></span><br><span> Q. Mr. Biggert, you do have folks that do have community</span><br><span> employment; is that correct?</span><br><span></span><br><span></span><br><span> A. Yes.</span><br><span></span><br><span></span><br><span> Q. And some of them are community employment at the same time that</span><br><span> they're working at Seneca Re-ad; is that correct?</span><br><span></span><br><span></span><br><span> A. Yes.</span><br><span></span><br><span></span><br><span> Q. The folks who are working community employment, they're getting</span><br><span> paid above minimum wage when they're in the community; is that right?</span><br><span></span><br><span></span><br><span> A. Correct.</span><br><span></span><br><span></span><br><span> Q. And they're getting paid below minimum wage in your workshop; is</span><br><span> that right?</span><br><span></span><br><span></span><br><span> A. Correct.50</span><br><span></span><br><span> The most significant job at Respondent's Fostoria manufacturing</span><br><span>facility which is paid on an hourly basis is known as "the line" or "the</span><br><span>assembly line" or "the Creform line."51 Photographs of the Creform line are</span><br><span>in the record.52 The end product of the Creform line is a bundle containing</span><br><span>many different colored samples (each approximately 4 inches long by 2.5</span><br><span>inches wide) of Roppe Industries' rubber flooring held together by a small</span><br><span>metal chain. A photograph showing this completed bundle of samples is in</span><br><span>the record.53 A consumer wishing to purchase Roppe Industries products can</span><br><span>presumably take this bundle to a home or office in order to select the</span><br><span>appropriate color to purchase.</span><br><span> Anywhere between thirty and forty employees sit or stand at stations</span><br><span>along the Creform line. In blue and red bins in front of each work station</span><br><span>are pieces of the Roppe Industries product which, before being delivered to</span><br><span>the line, have been cut to size, had the printed legend applied, and has</span><br><span>had a hole drilled in them. A photograph of the bins containing the Roppe</span><br><span>Industries product is in the record.54</span><br><span> A wooden jig, approximately 24 inches tall and 6 inches wide, has a</span><br><span>metal post sticking straight up from its base. A long metal chain is placed</span><br><span>over the tip of the post so that the chain hangs parallel to the post. A</span><br><span>photograph of several jigs with the chains in place is in the record.55 The</span><br><span>jig is slid on a table containing embedded rollers from person to person</span><br><span>down the assembly line from each worker's left to right. The employee at</span><br><span>each station will typically remove one sample from each of the two bins in</span><br><span>front of the employee (each bin contains a different color product), and</span><br><span>will then place the hole in the product over the post, thereby threading</span><br><span>the chain through the hole that has been drilled in each piece. The jig is</span><br><span>then slid along the table to the next person on the line, who repeats the</span><br><span>process with different color samples. At the end of the line, the chain is</span><br><span>closed and the ring of samples is inspected and then sent off for shipment.</span><br><span> During the period August 14, 2015, to December 15, 2015,</span><br><span>approximately 51 percent of Mark Felton's working hours at the Fostoria</span><br><span>manufacturing facility were on the Creform line.56 He was paid $4.11 per</span><br><span>hour for his Creform line work.57 During the same period, Joe Magers spent</span><br><span>about 62 percent of his work time on the Creform line.58 Mr. Magers was</span><br><span>initially paid $3.00, and then $3.15 per hour, for his work on the Creform</span><br><span>line.59 Pamela Steward spent about 52 percent of her work time during this</span><br><span>period on the Creform line, for which she was paid $3.22 per hour.60</span><br><span> When absences, "activity" time, holidays, and other unpaid time is</span><br><span>deducted, during the period August 14, 2015, to December 31, 2015, Mark</span><br><span>Felton was paid for working a total of 328.25 hours at Respondent's</span><br><span>Fostoria facility (approximately 16.5 paid hours per week).61 His gross</span><br><span>compensation during that period was $2,573.63 (about $129 gross per week),</span><br><span>and that amount includes an unexplained "Misc-Adj" payment of $571 paid</span><br><span>just before this matter went to hearing.62</span><br><span> During the same period, Joe Magers had a total of 257 hours for which</span><br><span>he was paid wages (about 13 paid hours per week).63 His gross compensation</span><br><span>during the period was $1,534.32, or about $77 gross per week, which also</span><br><span>includes an unexplained "Misc-Adj" payment of 435.54.</span><br><span> During the same period, Pamela Steward was paid for working 278.25</span><br><span>hours (about 14 paid hours per week). Her gross compensation during the</span><br><span>period was $2,624.41 (about $131 gross per week), including a "Misc-Adj"</span><br><span>payment of $685.55. Ms. Steward testified about the unexplained "Misc-Adj"</span><br><span>payment:</span><br><span></span><br><span></span><br><span> Q. Okay. And do you know how much your average paycheck is?</span><br><span></span><br><span></span><br><span> A. Here recently, I can't even figure this one out, why it would be</span><br><span> that high or anything like that there. But here recently, just before</span><br><span> Christmas I received a check of $763.13.</span><br><span></span><br><span></span><br><span> Q. And you can't figure out why it's that -</span><br><span></span><br><span></span><br><span> A. No, I do not have no idea, no, why it's that high and why it</span><br><span> would be that high.</span><br><span></span><br><span></span><br><span> Q. And before that, how much were you getting paid, that paycheck -</span><br><span></span><br><span></span><br><span> A. Well, I was probably getting maybe like $100, $200 maybe.</span><br><span></span><br><span></span><br><span> Q. Every two weeks?</span><br><span></span><br><span></span><br><span> A. When I was placed on the good jobs, when I was on those jobs</span><br><span> like the saw and that.</span><br><span></span><br><span></span><br><span> Q. And you're paid every two weeks, is that correct?</span><br><span></span><br><span></span><br><span> A. Yeah. I mean, I made a call to Michelle Guest (ph.) this</span><br><span> morning, stating how high my check was and why it was that high and</span><br><span> she said, well-she goes, we think you got a letter in with the check.</span><br><span> But I don't recall seeing a letter in with that check-</span><br><span></span><br><span></span><br><span> Q. Okay.</span><br><span></span><br><span></span><br><span> A. -stating why it would be that high. I mean, I don't have a</span><br><span> problem with it, that's fine. I mean, if you want to pay that kind of</span><br><span> money, go ahead and pay me that kind of money. I mean, I just can't</span><br><span> figure out why it would be so darn high.64</span><br><span></span><br><span>VI. THE CALCULATION OF COMMENSURATE HOURLY WAGES</span><br><span></span><br><span> Department of Labor regulations describe the methods by which the</span><br><span>special minimum wages paid to the Petitioners and their co-workers are to</span><br><span>be calculated. A method for calculating work paid as piece-work,65 and a</span><br><span>method for calculating hourly wages66 are prescribed by the Department of</span><br><span>Labor.</span><br><span> The Section 14(c) Certificate issued to Respondent by the Department</span><br><span>of Labor authorizes Respondent to pay special minimum wages to those</span><br><span>working in the facility. For the work performed on the Creform line (paid</span><br><span>on an hourly basis),67 the calculation of the hourly wage to be paid</span><br><span>requires Respondent to gather the following information:</span><br><span></span><br><span>1. Respondent conducts an annual survey of employers in Seneca County,</span><br><span>Ohio, to determine the amount of hourly wages being paid to experienced</span><br><span>workers in competitive positions thought to be comparable to those occupied</span><br><span>by Petitioners (this is known as the "prevailing rate").68</span><br><span></span><br><span>2. From time to time,69 Respondent determines how many jigs can be</span><br><span>processed in one hour by a non-disabled worker familiar with the Creform</span><br><span>line.70 This number becomes known as the "production standard" or "standard</span><br><span>of production." The persons participating in this timed test are typically</span><br><span>supervisors with familiarity with the operation of the Creform line.71 The</span><br><span>most recent results of these timed tests are Respondent Exhibits C-1 and C-</span><br><span>2. Over the past few years, the production standard for the Creform line</span><br><span>has been established at these levels:</span><br><span></span><br><span>Dates and Production Standard (Jigs per Hour)</span><br><span>2010 to 2013: 816</span><br><span>2013 to 2016: 1,114</span><br><span>2016 (current): 1,607</span><br><span></span><br><span>3. Approximately once every six months, Respondent individually</span><br><span>determines how many jigs of product can be processed in one hour by each</span><br><span>employee working on the Creform line.72 A supervisor will time the employee</span><br><span>and count the number of jigs processed during that time.73 Once the</span><br><span>information described above is gathered, a calculation is made: the number</span><br><span>of jigs per hour completed by the tested employee (Step 3) is divided by</span><br><span>production standard (established by the number of pieces completed in one</span><br><span>hour by the tested supervisor at Step 2). That product is then multiplied</span><br><span>by the prevailing rate (the hourly wage paid to experienced workers in the</span><br><span>county) as determined by Step 1. This calculation yields the "commensurate</span><br><span>hourly wage" to be paid to the employee for his or her work on the Creform</span><br><span>line.74</span><br><span> By way of example: If the prevailing rate for light manufacturing in</span><br><span>Seneca County is $9.00 per hour (step 1), and if the standard setter can</span><br><span>complete 1,000 jigs on the Creform line in an hour (step 2), and if a</span><br><span>disabled employee on the Creform line can complete 750 jigs per hour (step</span><br><span>3), then the commensurate wage to be paid to the worker is $6.75 per hour</span><br><span>(750 divided by 1,000 = 0.75. $9.00 multiplied by 0.75 = $6.75). This</span><br><span>commensurate wage remains in effect until the next time the employee's</span><br><span>performance is tested, or until the information in steps 1 or 2 changes.</span><br><span> The measurement of the hourly rate of production achieved on the</span><br><span>Creform line, either by supervisors when acting as "standard setters," or</span><br><span>by the Petitioners during their twice-yearly production assessments, plays</span><br><span>a critical role in determining the hourly wage paid to each of the</span><br><span>Petitioners for their work on the line.</span><br><span> Exhibits D-1 through D-6 are the "Hourly Job Sampling" forms</span><br><span>completed for each Petitioner during the relevant period. While all of</span><br><span>these forms indicate the Petitioner was tested on the line for precisely</span><br><span>"1.000000 hour" or for "100% of an hour," and while each form reports a</span><br><span>precise number of jigs produced during that 1-hour test period, the</span><br><span>testimony at the hearing was that these tests actually only lasted a few</span><br><span>minutes, and the performance results recorded on the Hourly Job Sampling</span><br><span>forms were extrapolated from a very short period of actual examination to a</span><br><span>1-hour time period. By way of example, Exhibit D-1 is a June 17, 2013,</span><br><span>Hourly Job Sampling report for Mark Felton. This form reports on its face</span><br><span>that Mr. Felton produced 251 jigs on the Creform line in 1.000000 hour. Mr.</span><br><span>Felton testified about his testing:</span><br><span></span><br><span> Q. So Mark, when-did Terry do most of the time studies?</span><br><span></span><br><span></span><br><span> A. Yes.</span><br><span></span><br><span></span><br><span> Q. And did he tell you he was doing the time study when he did it?</span><br><span></span><br><span></span><br><span> A. I think so.</span><br><span></span><br><span></span><br><span> Q. So you were on the Creform line. And do you recall how long the</span><br><span> time study lasted or how it was measured, how he did it?</span><br><span></span><br><span></span><br><span> A. It was probably less than a minute, I'm pretty sure.</span><br><span></span><br><span></span><br><span> Q. Do you know if he was measuring it by time or number of jigs?</span><br><span></span><br><span></span><br><span> A. Pretty much pace the jigs, how fast you run the jigs.75</span><br><span></span><br><span></span><br><span>Mr. Magers testified as follows:</span><br><span></span><br><span></span><br><span> Q. Okay. Now, during the time that you've been at the workshop, has</span><br><span> your productivity ever been tested or timed?</span><br><span></span><br><span></span><br><span> A. Only on the line.</span><br><span></span><br><span></span><br><span> Q. Okay. And when they test you, do you guys have a name for what</span><br><span> that's called?</span><br><span></span><br><span> A. Well, they do call it a time study.</span><br><span></span><br><span></span><br><span> Q. Okay. So do you know about how often they normally do time</span><br><span> studies?</span><br><span></span><br><span></span><br><span> A. Usually about every six months.</span><br><span></span><br><span></span><br><span> Q. Okay. And is it your testimony that they've only done time</span><br><span> studies for you on the line?</span><br><span></span><br><span></span><br><span> A. Yes, I know of no other situations. And I guess there's even</span><br><span> been times when they'd study me on the line unbeknownst to me.</span><br><span></span><br><span></span><br><span> Q. Okay. And how do they normally do like, you know, their time</span><br><span> studies? Who does it and what do they tell you?</span><br><span></span><br><span></span><br><span> A. It would be done by Terry Stocker. They set you up with about</span><br><span> eight jigs and I don't know, they kind of, you know, prod you in there</span><br><span> and they don't really encourage much of any kind of real productivity.</span><br><span> And, you know, in that time you're kind of hoping that you don't cause</span><br><span> a chain to fall off the jig so you're not worried about taking time</span><br><span> putting that back on.</span><br><span></span><br><span></span><br><span> Q. So how long does it take you to do about eight jigs?</span><br><span></span><br><span></span><br><span> A. Probably less than a minute.</span><br><span></span><br><span></span><br><span> Q. So they're not-are they then timing you for like a certain</span><br><span> amount of time or just doing it by however many jigs they set up for</span><br><span> you?</span><br><span></span><br><span></span><br><span> A. Just however many jigs they set up.76</span><br><span></span><br><span>Ms. Steward testified about her testing on the Creform line:</span><br><span></span><br><span></span><br><span> Q. Okay. Now when they normally test you on the Creform line, how</span><br><span> does that-what happens when they're testing you?</span><br><span></span><br><span></span><br><span> A. Terry or Rodney generally come over and tell me, hey, Pam, I'm</span><br><span> going to test you today. Are you fine with that? And I'll tell them,</span><br><span> yes, I am fine with that. So he'll test me and I'm generally pretty</span><br><span> fast at my work.</span><br><span></span><br><span></span><br><span> Q. How long does the test last, generally?</span><br><span></span><br><span></span><br><span> A. I don't even think it lasts more than a minute. It don't seem</span><br><span> like it, anyways.</span><br><span></span><br><span></span><br><span> Q. Does he give you a certain number of jigs to work or how does</span><br><span> that-</span><br><span></span><br><span></span><br><span> A. Yeah, probably about eight, maybe.77</span><br><span></span><br><span> There is no accurate recording of the actual, observed, production of</span><br><span>the Petitioners anywhere in the record until after this proceeding had been</span><br><span>commenced and Mr. Knuckles was hired by Respondent as a consultant. These</span><br><span>tests have a direct and substantial impact on the calculation of the hourly</span><br><span>wage to be paid to the Petitioners.</span><br><span> There are accurate recordings of the actual, observed, production of</span><br><span>the standard setters. Exhibit C-1 presents the results of a timed test</span><br><span>performed by supervisors on September 30, 2013. The face of this document</span><br><span>shows that 3 separate tests were performed that day: the first test lasted</span><br><span>52 seconds, during which 17 jigs were completed by the standard setter. The</span><br><span>second test lasted 47 seconds, during which 15 jigs were completed. The</span><br><span>third test lasted 59 seconds, during which 20 jigs were completed by a</span><br><span>supervisor. Arithmetic calculations are then shown on the exhibit, showing</span><br><span>how three tests lasting less than one minute were extrapolated to determine</span><br><span>a 1-hour production standard.</span><br><span> Exhibit C-2 is a record of tests performed by standard setters on</span><br><span>December 16, 2015. Each of the 2 tests performed on December 16, 2015,</span><br><span>lasted about 10 minutes. Again, arithmetic calculations were made to</span><br><span>extrapolate the results of this 10-minute test to a 1-hour production</span><br><span>standard.</span><br><span> Of particular note when comparing Exhibits C-1 and C-2 is the dramatic</span><br><span>difference in performance by the standard setters. On September 30, 2013</span><br><span>(Exhibit C-1), supervisor Laurie Fretz produced 20 jigs in 59 seconds</span><br><span>during the third test reported on that Exhibit. On December 16, 2015</span><br><span>(Exhibit C-2), Ms. Fretz produced 26 jigs per minute during the second</span><br><span>reported test. Ms. Fretz was thus measured to be producing about 360 more</span><br><span>jigs per hour in 2015 than she had produced in 2013. Nothing on the Creform</span><br><span>line had changed during this time, nor had the method of production</span><br><span>changed. These tests have a direct and substantial impact on calculation of</span><br><span>the hourly wage paid to the Petitioners.</span><br><span></span><br><span> Ms. Fretz testified:</span><br><span></span><br><span> JUDGE BELL: Can you-does the difference between 1,114 jigs per hour</span><br><span> and 1,607 jigs per hour seem to you like a big difference?</span><br><span></span><br><span></span><br><span> THE WITNESS: Not really, being more familiar on the line-I worked at a</span><br><span> steady pace, like I was always taught to do.</span><br><span></span><br><span></span><br><span> JUDGE BELL: Okay.</span><br><span></span><br><span></span><br><span> THE WITNESS: And the pace that I could work at all day.</span><br><span></span><br><span></span><br><span> JUDGE BELL: Do you have an understanding of what the effect is on the</span><br><span> rate of pay for the Petitioners when the standard of production moves</span><br><span> from 1,114 jigs per hour to 1,607 jigs per hour?</span><br><span></span><br><span></span><br><span> THE WITNESS: Yes, the standard is raised.</span><br><span></span><br><span></span><br><span> JUDGE BELL: And what happens to their pay?</span><br><span></span><br><span></span><br><span> THE WITNESS: It depends on how they do on the line.</span><br><span></span><br><span></span><br><span> JUDGE BELL: Assuming that their pay [rate] remains constant, what's</span><br><span> the effect of the production standard going up?</span><br><span></span><br><span></span><br><span> THE WITNESS: It would decrease.</span><br><span></span><br><span></span><br><span> JUDGE BELL: So as the production standard goes up, assuming the</span><br><span> Petitioners' performance remains level, their hourly pay goes down;</span><br><span> correct?</span><br><span></span><br><span></span><br><span> THE WITNESS: Yes.78</span><br><span></span><br><span>VII. THE WITNESSES AT THE HEARING</span><br><span></span><br><span> Each of the Petitioners testified at the hearing. I find the</span><br><span>testimony of the Petitioners to be substantially supported by the</span><br><span>documentary evidence in the record. They were credible, and I accept nearly</span><br><span>all of their testimony.</span><br><span> Both parties called Rodney Biggert in their respective cases-in-</span><br><span>chief. I believe Mr. Biggert is dedicated to the mission of Respondent.</span><br><span>There were areas of Mr. Biggert's testimony that I believe to be lower</span><br><span>probative value - such as his observations of the Petitioners as they work</span><br><span>on the Creform line79-and which I do not fully accept.</span><br><span> Laurie Fretz and Terry Stocker were called by Respondent. Both are</span><br><span>supervisors employed by Respondent. Their testimony was consistent with the</span><br><span>record, and both were entirely credible. The record should reflect my</span><br><span>thanks to Ms. Fretz for guiding counsel and the Court on our tour of the</span><br><span>Fostoria manufacturing facility. This was most helpful.</span><br><span> Three experts appeared at the hearing. Petitioners called Dr. Fredric</span><br><span>K. Schroeder in their case-in-chief. Dr. Schroeder has his Ph.D. in</span><br><span>Education Administration and Supervision from the University of New Mexico,</span><br><span>and since 2014, has been the executive director of the National</span><br><span>Rehabilitation Association. He is also a Research Professor at San Diego</span><br><span>State University. From 1994 to 2001, Dr. Schroeder served as Commissioner</span><br><span>of the Rehabilitation Services Administration of the U.S. Department of</span><br><span>Education. Dr. Schroeder's complete Curriculum Vitae is in the record as</span><br><span>Petitioner's Exhibit 1. Dr. Schroeder's Expert Report (Petitioner's Exhibit</span><br><span>2) concludes that none of the Petitioners "meet the definition of 'worker</span><br><span>with a disability' as required by Section 14(c) of the FLSA to be paid</span><br><span>under a special wage certificate."80</span><br><span> I am concerned that the Petitioners and Dr. Schroeder seem to have</span><br><span>markedly different recollections of the length and quality of Dr.</span><br><span>Schroeder's interviews of them. Dr. Schroeder described an elaborate</span><br><span>interview and information gathering process undertaken in preparation of</span><br><span>his expert report:</span><br><span></span><br><span> Q. And the interview itself, when and where did that happen?</span><br><span></span><br><span></span><br><span> A. It took place in-here in Tiffin. It was over a Friday and</span><br><span> Saturday. I'm thinking it was the first weekend of June 2015. So it</span><br><span> was about a day-and-a-half-long process.</span><br><span></span><br><span></span><br><span> Q. Would the weekend of the 12th and the 13th of June be the</span><br><span> appropriate one?</span><br><span></span><br><span></span><br><span> A. Yes, that sounds correct.</span><br><span></span><br><span></span><br><span> Q. And how much time did you spend with these individuals?</span><br><span></span><br><span></span><br><span> A. I would say the interview with each individual took in the</span><br><span> neighborhood of 90 minutes, give or take 10 or 15 minutes, but about</span><br><span> 90 minutes. It was a little longer than I would normally do in an</span><br><span> initial vocational evaluation, but you don't want to go into so much</span><br><span> detail that you end up kind of exhausting the individual with whom</span><br><span> you're speaking. So I would estimate 90 minutes each and then there</span><br><span> was some time when I had a general conversation with them as a</span><br><span> group.81</span><br><span></span><br><span> Each of the Petitioners has a markedly different recollection of the</span><br><span>amount of time they spent with Dr. Schroeder. Ms. Steward's testimony is</span><br><span>representative of that offered by the Petitioners on this subject:</span><br><span></span><br><span> Q. Okay. How many times did you talk to [Dr. Schroeder], do you</span><br><span> know?</span><br><span></span><br><span></span><br><span> A. Maybe a couple times.</span><br><span></span><br><span></span><br><span> Q. Did you meet him in person or on the phone?</span><br><span></span><br><span></span><br><span> A. In person, I believe.</span><br><span></span><br><span></span><br><span> Q. Okay, a couple times in person?</span><br><span></span><br><span></span><br><span> A. Yeah.</span><br><span></span><br><span></span><br><span> Q. That was in June?</span><br><span></span><br><span></span><br><span> A. Yes.</span><br><span></span><br><span></span><br><span> Q. Was that the only time you've ever met Dr. Schroeder?</span><br><span></span><br><span></span><br><span> A. I don't recall. Maybe. Yeah.</span><br><span></span><br><span></span><br><span> Q. Have you talked to him since June?</span><br><span></span><br><span></span><br><span> A. I don't recall that, either.</span><br><span></span><br><span></span><br><span> Q. Okay. And how long did you talk to him?</span><br><span></span><br><span></span><br><span> A. Probably not too long.</span><br><span></span><br><span></span><br><span> Q. Okay. Can you give me a time frame, 10 minutes, 20 minutes, an</span><br><span> hour?</span><br><span></span><br><span></span><br><span> A. Maybe about 10 minutes.</span><br><span></span><br><span></span><br><span> Q. Maybe 10 minutes, okay. Did he ask you questions?</span><br><span></span><br><span></span><br><span> A. Yes, but I don't recall what those questions were.</span><br><span></span><br><span></span><br><span> Q. Okay. Now, you met alone with him for 10 minutes or you only</span><br><span> talked to him for 10 minutes in total?</span><br><span></span><br><span></span><br><span> A. I think we were all there.</span><br><span></span><br><span></span><br><span> Q. Okay. Did you ever meet with him alone?</span><br><span></span><br><span></span><br><span> A. Not that I remember.</span><br><span></span><br><span></span><br><span> Q. Okay. And I think you said you can't recall anything you talked</span><br><span> about.</span><br><span></span><br><span></span><br><span> A. No, I'm sorry. No.</span><br><span></span><br><span></span><br><span> Q. You didn't tell him about any of your prior jobs?</span><br><span></span><br><span></span><br><span> A. I don't recall that, either.82</span><br><span></span><br><span> On this subject, I credit the Petitioners' collective recollections</span><br><span>over that of Dr. Schroeder, and I do find Dr. Schroeder's credibility</span><br><span>diminished. As a consequence of my doubts whether Dr. Schroeder really</span><br><span>gathered sufficient information to support his opinions about whether the</span><br><span>Petitioners are impaired for the work they perform at Fostoria, I discount</span><br><span>much of his testimony pursuant to Evidence Rule 702(b).</span><br><span> Dr. Schroeder also offered testimony about the impact of disability</span><br><span>of the actual performance of work. He also testified about the perceptions</span><br><span>of disability, and how those perceptions color our views about the work</span><br><span>performed by the disabled. I find these assessments to be largely</span><br><span>unaffected by any question I may have as to the quality of his interviews</span><br><span>of Petitioners, and I do not discount Dr. Schroeder's opinions in these</span><br><span>areas.</span><br><span> Petitioners also called Dr. Robert Cimera. Dr. Cimera has his Ph.D.</span><br><span>in Special Education from the University of Illinois, with an emphasis on</span><br><span>school-to-work transition. He is a professor at Kent State University, and</span><br><span>has published extensively in the areas of the economics of vocational</span><br><span>programs and the employment of persons with disabilities. Dr. Cimera did a</span><br><span>thorough analysis of the Petitioners' employment and pay records, and</span><br><span>raised a number of serious questions about the accuracy and consistency of</span><br><span>the calculations made by Respondent which affected the pay received by</span><br><span>Petitioners. Dr. Cimera was candid and credible. His testimony was somewhat</span><br><span>affected by the fact that additional documents were produced after he had</span><br><span>published his expert report, and these additional documents may have</span><br><span>affected some of his conclusions.83 I find Dr. Cimera to be qualified as an</span><br><span>expert on the payment of wages to the Petitioners. However, much of Dr.</span><br><span>Cimera's "scientific, technical, or other specialized knowledge" was of</span><br><span>little help to me in understanding the evidence or determining a fact in</span><br><span>issue.84</span><br><span> Respondent called Mark Knuckles as an expert. Mr. Knuckles was</span><br><span>formerly employed by the Wage and Hour Division of the U.S. Department of</span><br><span>Labor, where he was a specialist in compliance issues involving Section</span><br><span>14(c) of the Fair Labor Standards Act. Since 1986, Mr. Knuckles has</span><br><span>operated Mark Knuckles Associates in Hickory, North Carolina. Mark Knuckles</span><br><span>Associates provides advice and assistance on compliance with the Fair Labor</span><br><span>Standards Act, with a particular emphasis on Section 14(c) Certificates. By</span><br><span>virtue of his deep experience in the subject area, I find Mr. Knuckles to</span><br><span>be qualified as an expert generally on compliance with Section 14(c).</span><br><span> After Petitioners filed this matter, Mr. Knuckles was retained by</span><br><span>Respondent to review Respondent's compliance with Section 14(c). Mr.</span><br><span>Knuckles also performed standard setter testing and testing of the</span><br><span>Petitioners on the Creform line. While I find Mr. Knuckles to be</span><br><span>knowledgeable about Section 14(c) in general, I have difficulty considering</span><br><span>him as an expert when he testified about the Creform line production</span><br><span>studies performed at Fostoria. I largely discount Mr. Knuckles' opinions</span><br><span>about the Creform production tests for the following three reasons: (1) The</span><br><span>production studies themselves involve (a) starting a stopwatch, and (b)</span><br><span>counting how many jigs pass a given point in a given amount of time, and</span><br><span>(c) performing a few simple calculations to determine how many jigs per</span><br><span>hour are being produced by the person being tested. I do not believe this</span><br><span>aspect of Mr. Knuckles' testimony should be considered as "expert" under</span><br><span>Evidence Rule 702(a) as I do not believe it involves "scientific,</span><br><span>technical, or other specialized knowledge"; (2) The wide variances in the</span><br><span>results of the Creform line production tests causes me to believe that</span><br><span>either the testing is not based upon "reliable principles and methods" in</span><br><span>violation of Evidence Rule 702(c), or Mr. Knuckles has not "reliably</span><br><span>applied the principles and methods to the facts of the case" in violation</span><br><span>of Evidence Rule 702(d). I simply cannot reconcile how Ms. Fretz</span><br><span>participated in standard setter tests which produced 1,114 jigs/hour in a</span><br><span>2013 test which Respondent considered to be reliable,85 and was then</span><br><span>inexplicably86 able to produce 1,607 jigs/hour in an 2015 test also</span><br><span>considered to be reliable87; and (3) there is no data accurately describing</span><br><span>how many of the performance tests administered to the Petitioners were</span><br><span>actually done. Any testimony about these tests cannot possibly be "based</span><br><span>upon sufficient facts or data," and is thus not admissible under Evidence</span><br><span>Rule 702(b).</span><br><span></span><br><span>VIII. RESPONDENT IS SUBJECT TO THE ACT</span><br><span></span><br><span> In its post-hearing brief, Respondent raises-for the first time-the</span><br><span>argument that "[p]etitioners failed to allege or prove that Respondent is</span><br><span>engaged in interstate commerce." I note the coyness with which this</span><br><span>argument is posited: Respondent (which would be subject to sanctions under</span><br><span>Rule 18.35(b) of the Rules of Practice of the Office of Administrative Law</span><br><span>Judges for the knowing assertion of an untrue fact) never says that it is</span><br><span>not subject to the Act. It only claims that Petitioners "failed to allege</span><br><span>or prove" that Respondent is engaged in interstate commerce.</span><br><span> As noted earlier, I had the opportunity to visit the Fostoria</span><br><span>manufacturing facility where the Petitioners are employed. While there, I</span><br><span>saw product coming into the plant, the kind of work being performed with</span><br><span>that product, and the volume of finished product being produced. The</span><br><span>Respondents spent much of their time producing product related to the sale</span><br><span>of rubber flooring and moldings. These are construction materials. Given</span><br><span>the testimony of the Petitioners and the witnesses who supervise the work</span><br><span>at the Fostoria manufacturing facility, and given my own observations of</span><br><span>the type and volume of work occurring in Fostoria,88 and given my</span><br><span>observations about the lack of new construction in either Tiffin (where the</span><br><span>hearing was held) or Fostoria (where the Petitioners work), it strains</span><br><span>credulity that all the construction materials being shipped day after day</span><br><span>from the Fostoria work site are remaining in this state.</span><br><span> If Respondent truly believes that it is not engaged in interstate</span><br><span>commerce, and thus not subject to the Act, and if Respondent truly believes</span><br><span>that I had no jurisdiction whatsoever to schedule or conduct a week-long</span><br><span>hearing costing the parties tens (or hundreds) of thousands of dollars,</span><br><span>then I certainly would have expected Respondent to have mentioned such a</span><br><span>claim during our initial case management conference or at the weeklong</span><br><span>hearing. Had the issue been raised during that prehearing conference,89 I</span><br><span>would have requested full briefing of the matter before the hearing ever</span><br><span>commenced. Had I decided to proceed with the hearing, Respondent would then</span><br><span>have had a full opportunity to adduce all of the evidence needed for me to</span><br><span>make an informed decision on this matter. Instead, I have only the shadow</span><br><span>of an argument raised for the first time after the record has been closed.</span><br><span>I hold Respondent entirely at fault for depriving me of the opportunity to</span><br><span>review a fully developed factual record that would either support or refute</span><br><span>the claim (never actually made90) that Respondent is not subject to the</span><br><span>Act.</span><br><span> There is no "pleading" requirement in this case.91 The regulations</span><br><span>governing petitions seeking review of special minimum wages states</span><br><span>explicitly: "[n]o particular form of petition is required, except that a</span><br><span>petition must be signed by the individual, or the parent or guardian of the</span><br><span>individual, and should contain the name and address of the employee and the</span><br><span>name and address of the employee's employer."92 It is thus abundantly clear</span><br><span>that Petitioners were not required to "plead" any jurisdictional</span><br><span>prerequisites when submitting their petition.</span><br><span> The evidence at the hearing was that Respondent repeatedly applied for</span><br><span>Section 14(c) Certificates so that Respondent might pay commensurate wages</span><br><span>to the Petitioners and their co-workers, and to thereby comply with the</span><br><span>Act. Each of the applications signed by Mr. Biggert contains a</span><br><span>"Representation and Written Assurance" that Respondent's "operations are</span><br><span>and will continue to be in compliance with the FLSA."93</span><br><span> The Section 14(c) Certificates issued by the Department of Labor</span><br><span>require Respondent to pay special wages only in compliance with the Act.94</span><br><span> Soon after the petition in this matter was filed, Respondent retained</span><br><span>the consulting services of Mr. Knuckles-who was valued for his expertise in</span><br><span>maintaining compliance with the Act. Mr. Knuckles' expert report states</span><br><span>that he was retained "to provide a professional opinion regarding the</span><br><span>Respondent's compliance with the Fair Labor Standards Act."95 At the very</span><br><span>outset of his analysis, Knuckles assumes:</span><br><span></span><br><span> The workers of the Respondent are engaged in interstate commerce and</span><br><span> subject to the Fair Labor Standards Act, FLSA, each week, in that they</span><br><span> manufacture, process, package, or otherwise handle goods moving in</span><br><span> interstate commerce or their work is closely related and directly</span><br><span> essential to the movement of those goods and products in interstate</span><br><span> commerce.96</span><br><span></span><br><span> In the very first sentence of his expert report, Mr. Knuckles states</span><br><span>that he was retained by counsel for Respondent, and it thus seems</span><br><span>exceedingly improbable that Mr. Knuckles' observations as to the</span><br><span>applicability of the Act were not flyspecked by counsel prior to being</span><br><span>included in an expert report. I am constrained to conclude that the</span><br><span>discussion of the Act in Mr. Knuckles' expert report fairly states the real</span><br><span>position of Respondent.</span><br><span> Respondent rested its case without presenting any facts by which I</span><br><span>could determine whether Respondent is subject to the Act. In light of the</span><br><span>pleading requirements in 29 C.F.R. § 525.22(a), and the "informality"</span><br><span>requirements of §522.22(c), I conclude that Respondent had the burden to go</span><br><span>forward with any such evidence.</span><br><span> Based upon the state of the record, I conclude that the Act applies</span><br><span>to Respondent.</span><br><span></span><br><span>IX. PETITIONERS ARE NOT IMPAIRED FOR THE WORK BEING PERFORMED</span><br><span></span><br><span> The regulations implementing Section 214(c) of the Act provide:</span><br><span></span><br><span> An individual whose earning or productive capacity is not impaired for</span><br><span> the work being performed cannot be employed under a certificate issued</span><br><span> pursuant to this part and must be paid at least the applicable minimum</span><br><span> wage.97</span><br><span></span><br><span> I construe the regulation in the following manner: in order to be</span><br><span>eligible to be paid a special minimum wage, an individual must have a (1)</span><br><span>diagnosed impairment (2) having signs or symptoms (3) which, when supported</span><br><span>by a fair assessment of objective evidence, can be said to consistently</span><br><span>suppress the wage earning capacity of the individual (4) when the</span><br><span>individual is performing a specific job involving a specific set of tasks.</span><br><span>By way of example: an individual with a diagnosed impairment causing</span><br><span>diminished strength in the hands might be disabled for work involving the</span><br><span>assembly of parts by hand, but would likely not be disabled for operating a</span><br><span>machine which is operated only by the use of foot controls. I construe the</span><br><span>regulation to require proof of a clear nexus between the diagnosed</span><br><span>impairment and the impact of that impairment on the actual work tasks being</span><br><span>performed in order to justify the payment of a special minimum wage.</span><br><span> Respondent offers two types of evidence in support of its belief that</span><br><span>Petitioners are "impaired for the work being performed" on the Creform</span><br><span>line: (1) observations of the Petitioners' work habits when they are</span><br><span>working on the Creform line, and (2) the number of jigs produced by</span><br><span>Petitioners per hour when they have been tested as part of setting their</span><br><span>individual hourly pay rate.</span><br><span> As to the first category of evidence-observations of the Petitioners</span><br><span>at work-several witnesses offered their views. One such observation of</span><br><span>Petitioners was made by the Respondent's witness, Mark Knuckles:</span><br><span></span><br><span> During my observation of the work at Respondent and that</span><br><span> performed by the Petitioners, I observed several factors with the</span><br><span> Petitioners that would account for below standard productivity, such</span><br><span> as going off task when work was waiting for them, watching other</span><br><span> workers and staff instead of working, getting up and leaving the work</span><br><span> station during production, not following the prescribed work method,</span><br><span> and attempting to work too fast and making mistakes.98</span><br><span></span><br><span>Later, Mr. Knuckles summarizes his opinion:</span><br><span></span><br><span>[T]he below standard productivity of the Petitioners can only be attributed</span><br><span>to the off-task behaviors, lack of focus, not following the prescribed work</span><br><span>method, trying to go too fast, and leaving the work station, all common</span><br><span>behaviors I observed.99</span><br><span></span><br><span>Mr. Biggert also testified as to his observations of the Petitioners' work</span><br><span>habits. As to Ms. Steward:</span><br><span></span><br><span> [S]he has a hard time keeping pace. Sometimes it is learning a new</span><br><span> task and the training of a new task that we get in can be difficult.</span><br><span> In some instances there's a bit of retraining that needs to be done.</span><br><span> Her ability to follow directions can sometimes be hindered. We've had</span><br><span> instances where she's tried to place two or three pieces into a punch</span><br><span> or a drill at a time to try to speed up her own pace. But the machine</span><br><span> will only take, you know, won't take three at a time as far as</span><br><span> impairing the quality of the product, you know, and needs the reminder</span><br><span> from staff to stay on task and do those tasks the way they're</span><br><span> prescribed.</span><br><span></span><br><span> Q. And based on your experience you think that that's a product of</span><br><span> her disability?</span><br><span></span><br><span></span><br><span> A. Yes, I do.100</span><br><span></span><br><span></span><br><span>Mr. Biggert testified about Mr. Felton's work:</span><br><span></span><br><span></span><br><span> Q. Okay. Have you observed Mr. Felton at work?</span><br><span></span><br><span></span><br><span> A. Yes, I have.</span><br><span></span><br><span></span><br><span> Q. How often have you been able to observe him at work?</span><br><span></span><br><span></span><br><span> A. Quite often. I mean, I'm over there at least one to two days a</span><br><span> week.</span><br><span></span><br><span></span><br><span> Q. Have you noticed anything that you would consider a</span><br><span> manifestation of his limitations or diagnosis at work?</span><br><span></span><br><span></span><br><span> A. Yes.</span><br><span></span><br><span></span><br><span> Q. Like what?</span><br><span></span><br><span></span><br><span> A. Sometimes a hard time following directions; sometimes obsessive</span><br><span> components, which are commonly associated with Asperger's, where he</span><br><span> may obsess on a peer or have an issue with another peer. You see his</span><br><span> focus drift from his work to maybe an issue that he had last night or</span><br><span> an issue he's having with someone specifically.</span><br><span></span><br><span></span><br><span> Q. And how does that impact his productivity?</span><br><span></span><br><span></span><br><span> A. Sometimes he'll walk away from his work station and completely-</span><br><span> not just from his station but literally walk to the other side of the</span><br><span> facility to check up and see on what somebody is doing or try to see</span><br><span> what somebody is up to, and it may be focused on a conversation he had</span><br><span> last night or any number of other factors.</span><br><span></span><br><span></span><br><span> Q. Have you seen whether the staff attempt to redirect him in those</span><br><span> instances?</span><br><span></span><br><span></span><br><span> A. The staff do try to redirect him, yes.</span><br><span></span><br><span></span><br><span> Q. Is this something that happens regularly or infrequently or</span><br><span> what?</span><br><span></span><br><span></span><br><span> A. It happens with some regularity.</span><br><span></span><br><span></span><br><span> Q. Okay. Do you-based on what you know from being an SSA and Adult</span><br><span> Services Director, do you make any connection between those behaviors</span><br><span> and his diagnosis and limitations?</span><br><span></span><br><span> A. Yes.101</span><br><span></span><br><span>Mr. Biggert testified about Mr. Magers' work habits:</span><br><span></span><br><span> I am able and other staff are able to observe some troubles that Joe</span><br><span> will have from time to time in being able to discern between types of</span><br><span> material, if he gets them reversed, or whether material is in a space</span><br><span> or ready to be placed or has already been placed. He has a hard time</span><br><span> discerning that a mistake has occurred and needs staff direction to</span><br><span> help him with that.</span><br><span></span><br><span></span><br><span> Q. Do you rank that to his disability of optic atrophy or vision</span><br><span> impairment?</span><br><span></span><br><span></span><br><span> A. Yes.</span><br><span></span><br><span></span><br><span> JUDGE BELL: Can you describe for me what you mean when you say</span><br><span> "difficult for him to tell whether a mistake has occurred"?</span><br><span></span><br><span></span><br><span> THE WITNESS: In the case of maybe placing two of the samples onto a</span><br><span> chain in the wrong order, he won't necessarily be able to tell that</span><br><span> the pieces are in the wrong order, or in some cases I've witnessed him</span><br><span> get confused as to whether he might have a couple of jigs in front of</span><br><span> him and become confused as to whether he's put pieces on them yet or</span><br><span> not and can't discern whether the job or that job task has been</span><br><span> completed without assistance from staff.</span><br><span></span><br><span> JUDGE BELL: Okay, thank you.</span><br><span></span><br><span> BY MR. KESSLER:</span><br><span></span><br><span> Q. Have you noticed-and I'm sorry, I was only half listening during</span><br><span> your answer. Did you talk about whether he has difficulty telling</span><br><span> colors apart?</span><br><span></span><br><span></span><br><span> A. He can also have some difficulty with colors.</span><br><span></span><br><span></span><br><span> Q. And if, for example, the chain gets knocked off the post, does</span><br><span> that create any problems for him?</span><br><span></span><br><span></span><br><span> A. It can create some problems for him. He can have some issues</span><br><span> with getting it back on the post, or in the case that the post or the</span><br><span> jig comes to him with the chain already off the post, he can sometimes</span><br><span> have an issue noticing that it's off the post to begin with or have an</span><br><span> issue with correcting it, and would need staff to assist him with</span><br><span> that.102</span><br><span></span><br><span> Laurie Fretz is the Division Manager at the Fostoria facility. She</span><br><span>has contact with Petitioners on each day when they are working, and is in a</span><br><span>good position to observe their work behavior. She testified about Mr.</span><br><span>Magers' work:</span><br><span></span><br><span> Q. And for Mr. Magers, have you observed a vision impairment impact</span><br><span> his productivity?</span><br><span></span><br><span></span><br><span> A. Yes.</span><br><span></span><br><span></span><br><span> Q. And have you seen him have problems on Creform line?</span><br><span></span><br><span></span><br><span> A. Yes, at times. He has to feel for the pieces, the holes, and</span><br><span> then put them on the jig. There was a time when we just did the last</span><br><span> time study where he put some pieces on-I'm not sure why he took them</span><br><span> off, but when he took them off, the chain came off, and he dropped a</span><br><span> piece and he asked staff for assistance to put it back on, and he</span><br><span> asked from time to time.</span><br><span></span><br><span></span><br><span> Q. And do you know what he asks for from time to time?</span><br><span></span><br><span></span><br><span> A. If he needs help with something. Sometimes he might ask if, you</span><br><span> know, if he may have taken a color out and put it in the wrong tub or</span><br><span> something like that.103</span><br><span></span><br><span>Ms. Fretz testified about Mr. Felton:</span><br><span></span><br><span> Q. Okay. And for Mr. Felton, have you observed whether his</span><br><span> disabilities impaired his productivity?</span><br><span></span><br><span></span><br><span> A. Yes.</span><br><span></span><br><span></span><br><span> Q. And how would you describe his ability to stay on task?</span><br><span></span><br><span></span><br><span> A. Sometimes it's not good. Sometimes he has a hard time paying</span><br><span> attention. He'll walk away from his work station. One of the last ones</span><br><span> that I observed was during a-the time study that we did. He picked the</span><br><span> jig up and walked to the other end of the line where Pam was and said</span><br><span> something to her, and then walked over and put it on the table, which</span><br><span> was holding everybody else up on the line because he had walked away.</span><br><span></span><br><span></span><br><span> Q. Does he often walk away from his work station?</span><br><span></span><br><span></span><br><span> A. It depends on the day. If he's upset, he walks away a lot, goes</span><br><span> to the restroom a lot.</span><br><span></span><br><span></span><br><span> Q. You answered part-what does he do when he walks away?</span><br><span></span><br><span></span><br><span> A. Usually he can-it's usually-well, it depends. He might go, you</span><br><span> know, talk to somebody or-which they're allowed to talk, but usually</span><br><span> he'll like go to like the other end to talk to somebody or-I don't</span><br><span> know. I don't know, it's hard to explain. When you're on the line, if</span><br><span> he's on one end and he leaves to go make conversation with somebody,</span><br><span> then that holds up the line. It stops the line. The people beside him</span><br><span> can't push jigs down and then nobody can have work that's on the other</span><br><span> side.</span><br><span></span><br><span></span><br><span> Q. And the times that you have seen him walk away, I mean, does he</span><br><span> walk away to go to the bathroom?</span><br><span></span><br><span></span><br><span> A. Yes.</span><br><span></span><br><span></span><br><span> Q. There's nothing wrong with that?</span><br><span></span><br><span></span><br><span> A. No.</span><br><span></span><br><span></span><br><span> Q. Does he walk away to get a drink of water?</span><br><span></span><br><span></span><br><span> A. Yes. Usually if they go to the restroom or want a drink of water</span><br><span> or whatever, they'll tell staff, then staff will cover for them.</span><br><span></span><br><span></span><br><span> Q. And that's normal?</span><br><span></span><br><span></span><br><span> A. Yes.</span><br><span></span><br><span></span><br><span> Q. And that's not an issue, that's not what you're addressing when</span><br><span> he walks away from the line?</span><br><span></span><br><span></span><br><span> A. No.</span><br><span></span><br><span></span><br><span> Q. Okay. How would you describe his ability to follow directions?</span><br><span></span><br><span></span><br><span> A. Sometimes he has a hard time accepting direction from staff.</span><br><span></span><br><span></span><br><span> Q. And what happens-what does he do?</span><br><span></span><br><span></span><br><span> A. Sometimes he can become upset, belligerent, disrespectful to</span><br><span> staff, and he's hard to calm down at times.</span><br><span></span><br><span></span><br><span> Q. Have you observed that on any particular job or any-that's two</span><br><span> questions. Have you observed that on any particular job that he's</span><br><span> working on?</span><br><span></span><br><span></span><br><span> A. It could be on any job actually. It depends. He could be upset,</span><br><span> not because of the job, maybe because of a peer or, you know, a staff</span><br><span> asked him to return to his work station if he's over making</span><br><span> conversation with somebody.</span><br><span></span><br><span></span><br><span> Q. I think you said he gets upset.</span><br><span></span><br><span></span><br><span> A. Yes.</span><br><span></span><br><span></span><br><span> Q. And when was the last time he got upset?</span><br><span></span><br><span></span><br><span> A. It was the week before Christmas break. Another peer came to me</span><br><span> and said that he didn't want to work on the line where Mark was</span><br><span> because Mark had left a message on his cell phone and was saying some</span><br><span> inappropriate things and using vulgar language about his girlfriend,</span><br><span> and he let me listen to it and it was Mark's voice, and I said okay,</span><br><span> so I let him work in Building 1. And in the meantime, Anita had-which</span><br><span> is Mark's boss-had came to me and said that Mark had went off task and</span><br><span> he was in the restroom crying and after their break, which was 10:30,</span><br><span> Mark and Pam came to me and asked me to help resolve the situation,</span><br><span> which I already knew what was going on, so I asked the peer if he</span><br><span> wanted to talk to them, and he said yes. And Mark apologized and they</span><br><span> made up, and he lost about two hours of work over the whole</span><br><span> situation.104</span><br><span></span><br><span>Ms. Fretz testified about Ms. Steward:</span><br><span></span><br><span> Q. Okay. For Ms. Steward, have you observed whether her</span><br><span> disabilities impair her productivity?</span><br><span></span><br><span></span><br><span> A. Yes.</span><br><span></span><br><span></span><br><span> Q. Have you seen her have problems with manual pad print?</span><br><span></span><br><span></span><br><span> A. Yes, there's been some times-she's been trained on the job.</span><br><span> Sometimes she'll get going too fast and pass bad pieces, not having in</span><br><span> the insta-guide. Then when it stamps, it's crooked. Just not checking</span><br><span> the pieces and then they have to be scrapped.</span><br><span></span><br><span></span><br><span> Q. Have you had issues with her on any other jobs?</span><br><span></span><br><span></span><br><span> A. She's not near the standard on some of the other jobs, although</span><br><span> the saw, she does very well on. She's one of the best ones that we</span><br><span> have to cut the tread.</span><br><span></span><br><span></span><br><span> Q. And do you try to put her on the saw for that reason?</span><br><span></span><br><span></span><br><span> A. Yes, but we don't have-we don't-I have to follow what the</span><br><span> customers want and I don't always have the tread to saw.</span><br><span></span><br><span></span><br><span> Q. You may not have the job available every day?</span><br><span></span><br><span></span><br><span> A. Correct.</span><br><span></span><br><span></span><br><span> Q. And that wouldn't be limited to Ms. Steward?</span><br><span></span><br><span></span><br><span> A. No.</span><br><span></span><br><span></span><br><span> Q. Nobody else would do the job that day?</span><br><span></span><br><span></span><br><span> A. No. If there's no material, there's nothing to do.</span><br><span></span><br><span></span><br><span> Q. Has Ms. Steward ever refused to do a job?</span><br><span></span><br><span></span><br><span> A. Yes.</span><br><span></span><br><span></span><br><span> Q. And what was that?</span><br><span></span><br><span></span><br><span> A. Actually the sawing job, I asked her to do it-it was either the</span><br><span> week before our break or the week before that-and it actually kind of</span><br><span> shocked me that she said no, but I usually don't ask why, I just ask</span><br><span> somebody else to do it.</span><br><span></span><br><span> Q. Is that typical for her?</span><br><span></span><br><span></span><br><span> A. Not usually, no. That's why I was kind of shocked that she</span><br><span> refused to do it.105</span><br><span></span><br><span> On balance, I find the foregoing observations to be of little to no</span><br><span>help when I am deciding whether Petitioners are disabled for the work</span><br><span>performed at Fostoria. By the time Mr. Knuckles first observed Petitioners</span><br><span>at work, this proceeding was underway, and Mr. Knuckles had been enlisted</span><br><span>as a witness for Respondent. That business relationship could not help but</span><br><span>color Mr. Knuckles' observations of the Petitioners. Additionally, Mr.</span><br><span>Knuckles had only a very limited amount of time in which to observe</span><br><span>Petitioners at work. From the testimony he offered at the hearing, he was</span><br><span>performing all sorts of tests and measurements during his brief time in</span><br><span>Fostoria, and his opportunity to gather anything more than anecdotal</span><br><span>information about the job performance of the Petitioners is questionable.</span><br><span>Nor does Mr. Knuckles have medical, psychological or other specialized</span><br><span>training which would permit him to draw meaningful conclusions about how</span><br><span>Mr. Magers' visual impairment actually affects his workplace performance,</span><br><span>or how Ms. Steward's intellectual disability actually limits her when she</span><br><span>is performing work, or how Mr. Felton's disability allows him to possess a</span><br><span>driver's license, but does not permit him to place pieces of flooring on a</span><br><span>metal spindle as quickly as someone else. It is not clear whether Mr.</span><br><span>Knuckles was able to see Petitioners working anywhere other than the</span><br><span>Creform line. Mr. Knuckles' testimony about Petitioners' work performance</span><br><span>is not persuasive.</span><br><span> I discount almost entirely Mr. Biggert's observations of Petitioners</span><br><span>at work. Mr. Biggert testified that he was only in the Fostoria</span><br><span>manufacturing facility one or two times per week.106 Presumably he was not</span><br><span>there to watch the Petitioners perform their jobs. Approximately 80 people</span><br><span>work in Fostoria. I do not believe Mr. Biggert was ever in a position</span><br><span>before the initiation of this proceeding to make the kind of detailed</span><br><span>observations of Petitioners over a long enough period of time that his</span><br><span>testimony describes the consistently applicable work characteristics of the</span><br><span>Petitioners. As is the case with Mr. Knuckles, I greatly discount any</span><br><span>observations of Petitioners after the initiation of this case. I find that</span><br><span>the objectivity of observation demanded when applying §214(c) is</span><br><span>compromised once high-stakes litigation is underway. Mr. Biggert's</span><br><span>testimony about the Petitioners in not persuasive.</span><br><span> Ms. Fretz' observations are generally anecdotal, and do not present a</span><br><span>longitudinal explanation of how the Petitioners' acknowledged disabilities</span><br><span>have affected their work performance over the lengthy time she has watched</span><br><span>the Petitioners at work. She admits that her snapshot observations of Ms.</span><br><span>Steward, in part, are "not typical" of Ms. Steward's actual job</span><br><span>performance.107 Her observations of Mr. Felton's holiday meltdown 108 do</span><br><span>not inform me of how Mr. Felton's disabilities consistently affect his job</span><br><span>performance.</span><br><span> For his part, Mr. Felton flatly denies the observations that he</span><br><span>"lacks focus" while working on the line:</span><br><span></span><br><span> Q. Okay. Do you remember with any of the time studies that was done</span><br><span> whether you got up and walked away from the line while you were being</span><br><span> tested?</span><br><span></span><br><span></span><br><span> A. No.</span><br><span></span><br><span></span><br><span> Q. You don't recall or you didn't?</span><br><span></span><br><span></span><br><span> A. I didn't.</span><br><span></span><br><span></span><br><span> Q. Do you recall if you ever lost focus on what you were doing?</span><br><span></span><br><span></span><br><span> A. No.109</span><br><span></span><br><span> It is not necessary for me to resolve the specific dispute between</span><br><span>Mr. Felton's view of his workplace behavior and that of his supervisors.</span><br><span>After observing all of the witnesses as they testified, and after</span><br><span>evaluating their credibility, I am not persuaded that the observations of</span><br><span>the Petitioners made by Mr. Knuckles, Mr. Biggert and Ms. Fretz establishes</span><br><span>that they are disabled for the work performed by them at Fostoria. Instead,</span><br><span>it seemed as though a scripted narrative was being played out.</span><br><span> I had the opportunity to visit the Fostoria facility while production</span><br><span>on the Creform line was ongoing. I also had the chance to view many of the</span><br><span>jobs in Fostoria which are paid on a piece-rate basis. The jobs being</span><br><span>performed by Petitioners are simple and straightforward. The jobs have been</span><br><span>designed so they might be performed by persons with all different types of</span><br><span>disabilities. Watching actual production take place on the Creform line did</span><br><span>not help me to understand in the least why Petitioners' respective</span><br><span>impairments might slow them. The same can be said for the piece-rate work I</span><br><span>was able to observe. There is nothing about the work itself which would</span><br><span>inherently favor production rates by a non-disabled person over the</span><br><span>production rate of an individual with one or more disabilities.</span><br><span> Lastly, I had the unique opportunity to observe each of the</span><br><span>Petitioners while each was on the witness stand and to thereby make a</span><br><span>credibility determination. Equally important, I was able to carefully</span><br><span>observe Petitioners as they sat in the courtroom during more than 30 hours</span><br><span>of testimony. I was able to evaluate the Petitioners as they entered and</span><br><span>left the courtroom, as they interacted among themselves and with the other</span><br><span>people in the courtroom. In the compact downtown of Tiffin, Ohio, I even</span><br><span>occasionally saw the Petitioners as they arrived at the courthouse or went</span><br><span>to lunch, or as they waited for rides at the end of the day. Mr. Magers'</span><br><span>visual impairment did not interfere with his ability to be a full</span><br><span>participant in the courtroom activities. Mr. Felton did not have any</span><br><span>emotional outburst such as that described by Ms. Fretz. Ms. Steward seemed</span><br><span>to have no difficulty seeing what was happening in the courtroom or</span><br><span>understanding the sometimes complex testimony.</span><br><span> Respondent next argues that I should consider the Petitioner's</span><br><span>individual hourly production rates when determining whether they are</span><br><span>"impaired for the work being performed" on the Creform line.110</span><br><span> At the outset of this analysis, I note my significant reservations</span><br><span>about the quality of the production data maintained by Respondent. These</span><br><span>reservations are discussed in detail in Section X of this Decision and</span><br><span>Order.</span><br><span> I have carefully reviewed the hourly production on the Creform line of</span><br><span>each Petitioner.111 It is undeniably true that the Petitioners have never</span><br><span>produced on the Creform line at the production standard which was in effect</span><br><span>at the time the testing took place.112 However, I have no medical,</span><br><span>psychological or other evidence in the record which explains (in a cause-</span><br><span>and-effect manner) why this is so. On the record now before me, it would be</span><br><span>pure speculation to conclude that the Petitioners don't meet the production</span><br><span>standards solely or primarily because of their respective disabilities. It</span><br><span>is just as likely they don't meet the production standards because they are</span><br><span>bored with a highly repetitive task they have performed on a hundred prior</span><br><span>occasions, or because they lack a substantial economic impetus to perform</span><br><span>at a higher level,113 or because they self-identify as individuals whose</span><br><span>performance should be lower than their non-disabled supervisors. I find</span><br><span>there to be no proof in the record that Petitioners are intrinsically</span><br><span>incapable of performing at the level of their non-disabled supervisors</span><br><span>because of Petitioner's visual impairments, intellectual disability or</span><br><span>Asperger's disorder. No such causal relationship has been persuasively</span><br><span>demonstrated.</span><br><span> When Mark Knuckles measured the Creform line production rates of Mark</span><br><span>Felton and Joe Magers in December 2015, he obtained the following results:</span><br><span>Mr. Felton was able to produce at the rate of 1,029 jigs per hour in test</span><br><span>number 2.114 Mr. Magers was able to produce at the rate of 978 jigs per</span><br><span>hour in one test, and 816 jigs per hour in a second test.115 These measured</span><br><span>production rates are above (and in some cases well above) the rate of</span><br><span>production established by the non-disabled standard setter in 2010, and</span><br><span>above the standard units per hour measure that was in place for all Creform</span><br><span>line workers between 2010 and 2013.116 Nothing about the Creform line</span><br><span>process changed between 2010 and 2015. The fact that the Petitioners were</span><br><span>able to meet-and exceed-what had been the production standard set by a non-</span><br><span>disabled supervisor contradicts the inference that Petitioners work</span><br><span>performance numbers establishes that they are disabled for the work</span><br><span>performed.</span><br><span> The same is true for piece-rate work. When performing jobs paid on a</span><br><span>piece-rate basis, each of the Petitioners occasionally has been able to</span><br><span>earn more than minimum wage. I believe this fact directly refutes the</span><br><span>conclusion that the Petitioners are disabled for the work they perform in</span><br><span>Fostoria. As noted above, Mark Felton was able to earn more than $14.00 per</span><br><span>hour on the Click 5 machine.117 Joe Magers was able to earn nearly $9.00</span><br><span>per hour on a piece-rate job called "Affix Screw and Remove."118 Pamela</span><br><span>Steward was able to earn $11.84 per hour on a drill press.119 Based upon my</span><br><span>observation of these jobs during the visit to the Fostoria facility, these</span><br><span>other jobs seem comparable to the Creform line in terms of skill level. The</span><br><span>fact that Petitioners have been able to exceed minimum wage in piece-work</span><br><span>jobs of similar complexity to the Creform line effectively rebuts the</span><br><span>notion that Petitioners are disabled for the work performed by them.</span><br><span> After making my own observations of the production processes in the</span><br><span>Fostoria manufacturing facility, and after making my own observations about</span><br><span>the practical impact of the Petitioners' disabilities on their public</span><br><span>lives, I conclude that while each of the Petitioners unquestionably has one</span><br><span>or more disabilities, those disabilities should not, and do not, impair any</span><br><span>of the Petitioners from performing any of the jobs in Petitioner's Fostoria</span><br><span>facility. I conclude that Respondent has not had in the past, and does not</span><br><span>now have, the legal ability to employ any of the Petitioners under a</span><br><span>Section 14(c) Certificate, and that each of the Petitioners has been, and</span><br><span>is now, entitled to earn at least minimum wage when working in the Fostoria</span><br><span>manufacturing facility. For these reasons, I find Respondent has not paid</span><br><span>Petitioners the minimum wage to which Petitioners have been entitled, and</span><br><span>that Respondent has thus violated §206 of the Act.</span><br><span></span><br><span>X. RESPONDENT HAS FAILED TO PROVE THE PROPRIETY OF THE WAGES PAID</span><br><span></span><br><span>The Regulations implementing Section 214(c) of the Act provide:</span><br><span></span><br><span></span><br><span> In determining whether any special minimum wage rate is</span><br><span> justified, the ALJ [administrative law judge] shall consider, to the</span><br><span> extent evidence is available, the productivity of the employee or</span><br><span> employees identified in the petition and the conditions under which</span><br><span> such productivity was measured, and the productivity of other</span><br><span> employees performing work of essentially the same type and quality for</span><br><span> other employers in the same vicinity and the conditions under which</span><br><span> such productivity was measured. In these proceedings, the burden of</span><br><span> proof on all matters related to the propriety of a wage at issue shall</span><br><span> rest with the employer.120</span><br><span></span><br><span> I conclude Respondent has failed to demonstrate by a preponderance of</span><br><span>the evidence that the wages actually paid to Petitioners during the</span><br><span>relevant period have been properly calculated. The following are examples</span><br><span>of the significant shortcomings of the Respondent's calculations:</span><br><span></span><br><span>(1) Over the past four years, the hourly production standard set by non-</span><br><span>disabled supervisors acting as "standard setters" on the Creform line has</span><br><span>increased from 816 to 1,607 jigs per hour. No explanation for this 100</span><br><span>percent increase in performance was offered at the hearing. No changes to</span><br><span>the method of production on the Creform line occurred during the time when</span><br><span>this increase occurred. Mr. Knuckles testified that the rate of production</span><br><span>of non-disabled workers should remain relatively constant over time:</span><br><span></span><br><span> Q. So all three, Pam, Mark and Joe, who have very different</span><br><span>disabilities, all consistently performed higher at piece rate jobs than on</span><br><span>the hourly jobs, is that right?</span><br><span></span><br><span></span><br><span> A. That's correct.</span><br><span></span><br><span></span><br><span> Q. Different disabilities?</span><br><span></span><br><span></span><br><span> A. Correct. It's not unusual; very common.</span><br><span></span><br><span></span><br><span> Q. Yeah. Among people with disabilities there's huge variations in</span><br><span> ability, how they're going to do all of these different types of jobs,</span><br><span> right? Is there, in your experience, variation in the abilities of</span><br><span> folks without disabilities to perform these types of jobs?</span><br><span></span><br><span></span><br><span> A. To perform these types of jobs?</span><br><span></span><br><span></span><br><span> Q. Yes.</span><br><span></span><br><span></span><br><span> A. I wouldn't think that they-without disabilities there would be-I</span><br><span> haven't done any studies of people doing these types of jobs. These</span><br><span> are different jobs than you would find out in industry, typically. But</span><br><span> would we find differences? There would be some differences, yes, but</span><br><span> generally not as much.121</span><br><span></span><br><span> The variability in the performance results of the same non-disabled</span><br><span>person (Laurie Fretz) performing the same test over a 2-year span is quite</span><br><span>large. The establishment of this production standard was of critical</span><br><span>importance to the calculation of the Petitioner's weekly wages. The</span><br><span>unexplained 100 percent variance in the production rate of the standard</span><br><span>setters convinces me that the numbers have not been properly derived from</span><br><span>any defined professional methodology, and are, in fact, arbitrary.</span><br><span></span><br><span>(2) Respondent presented no evidence about how the 816 jigs per hour</span><br><span>standard was set in 2011. The hourly rate of the Petitioners was dependent</span><br><span>upon that standard until October 2013. Without evidence which allows me to</span><br><span>evaluate the methodology used to set the 816 jigs per hour standard, and in</span><br><span>light of my serious concerns about how all other standards have been set</span><br><span>and documented, I do not presume the 2011 test was properly done and/or</span><br><span>properly documented. I cannot find Respondent has met its burden to prove</span><br><span>the propriety of the wages paid prior to the 2013 performance standard</span><br><span>test.</span><br><span></span><br><span>(3) The establishment of the performance standard in 2013 was based upon</span><br><span>a flawed methodology. As described in detail above, the 2013 performance</span><br><span>standard122 was extrapolated from the results of testing which lasted less</span><br><span>than one minute. The individual who performed this test acknowledged at the</span><br><span>hearing that these intervals were too short to generate a valid study:</span><br><span></span><br><span> Q. Okay. So when you made the decision-and I assume it was your</span><br><span> decision, tell me if it wasn't-to run the first test here for 52</span><br><span> seconds, did you believe that was an appropriately long period in</span><br><span> order to be able to make a fair assessment of the standard setter's</span><br><span> performance?</span><br><span></span><br><span></span><br><span> THE WITNESS: In looking back, no.</span><br><span></span><br><span></span><br><span> JUDGE BELL: Okay. So I assume you would say the same thing for 47</span><br><span> seconds?</span><br><span></span><br><span></span><br><span> THE WITNESS: Correct.</span><br><span></span><br><span></span><br><span> JUDGE BELL: And the same thing for 59 seconds?</span><br><span></span><br><span></span><br><span> THE WITNESS: Yes.123</span><br><span></span><br><span> This flawed production standard played a pivotal role in calculating</span><br><span>the amount of money paid to the Petitioners from October 2013 to January</span><br><span>2016. In light of the admission that these test results are flawed, the</span><br><span>"propriety" of the wages paid to the Petitioners based upon that testing</span><br><span>has not been established.</span><br><span></span><br><span>(4) As noted above, when comparing Exhibits C-1 and C-2, there is a</span><br><span>dramatic difference in performance by the standard setters. On September</span><br><span>30, 2013 (Exhibit C-1), supervisor Laurie Fretz produced 20 jigs in 59</span><br><span>seconds during the third test reported on that Exhibit. On December 16,</span><br><span>2015 (Exhibit C-2), Ms. Fretz produced an average of 26 jigs per minute</span><br><span>during the second reported test. Ms. Fretz was thus measured to be</span><br><span>producing about 360 more jigs per hour in 2015 than she had produced in</span><br><span>2013. Nothing on the Creform line had changed during this time, nor had the</span><br><span>method of production changed. These tests have a direct and substantial</span><br><span>impact on calculation of the hourly wage to be paid to the Petitioners. The</span><br><span>unexplained variance in the production rate of Ms. Fretz when acting as a</span><br><span>standard setter convinces me that the production numbers have not been</span><br><span>properly derived from any defined professional methodology, and are, in</span><br><span>fact, largely arbitrary.</span><br><span></span><br><span>(5) Respondent has a tolerance for wide variance in performance test</span><br><span>results that I do not share, and which I do not believe generates</span><br><span>information that should be admissible as evidence. Mr. Knuckles was asked</span><br><span>about his tolerance for variability:</span><br><span></span><br><span> JUDGE BELL: I'm sorry, did you run two different samples?</span><br><span></span><br><span></span><br><span> THE WITNESS: Yes.</span><br><span></span><br><span></span><br><span> JUDGE BELL: So the first sample he produced 717 units per hour and the</span><br><span> second 1,028 units per hour?</span><br><span></span><br><span></span><br><span> THE WITNESS: Yes.</span><br><span></span><br><span></span><br><span> JUDGE BELL: And are those thought by you to be consistent?</span><br><span></span><br><span></span><br><span> THE WITNESS: Consistent, yeah. Yes, they're good. Yes, these are good</span><br><span> samples.</span><br><span></span><br><span></span><br><span> JUDGE BELL: But they are 20-some percent-</span><br><span></span><br><span></span><br><span> THE WITNESS: Yes. Well, while I was observing Mark, there's other</span><br><span> factors in there. Mark would get up and move around, lose focus on the</span><br><span> work. So that could explain the difference here.124</span><br><span></span><br><span> Respondent seeks to admit the results of these performance tests</span><br><span>through Mr. Knuckles to support Mr. Knuckles' opinion that the Petitioners</span><br><span>are disabled for the work performed in the Fostoria manufacturing facility.</span><br><span>Under the standard set forth in Daubert v. Merrell Dow Pharmaceuticals, I</span><br><span>am constrained to take notice of the error rate when evaluating the</span><br><span>admissibility of expert opinion:</span><br><span> Additionally, in the case of a particular scientific technique, the</span><br><span>court ordinarily should consider the known or potential rate of error, and</span><br><span>the existence and maintenance of standards controlling the technique's</span><br><span>operation.125</span><br><span> Here, I believe the variances between the performance tests prevents</span><br><span>them from being offered by Mr. Knuckles as evidence the Petitioners are</span><br><span>disabled for the work performed by them.</span><br><span></span><br><span>(6) The documentation of the Petitioner's performance tests on the</span><br><span>Creform line contains inaccuracies. The majority of these forms incorrectly</span><br><span>state the Petitioners were timed for a full one hour, when it is now clear</span><br><span>that was not the case. Respondent cannot sustain its burden to prove the</span><br><span>propriety of the wages paid without clear, accurate, contemporaneous</span><br><span>records of what was done during these crucial performance tests.126</span><br><span></span><br><span>(7) The fact that the Petitioners have occasionally been able to perform</span><br><span>at minimum-wage levels when performing piece-rate work leads me to believe</span><br><span>that the job testing on the Creform line systematically suppresses the</span><br><span>volume of production of which each Petitioner is capable. No explanation</span><br><span>has been offered as to why Petitioners allegedly perform so much better on</span><br><span>some piece-rate work than they do on the Creform line. In the absence of an</span><br><span>explanation, and for all the reasons stated above, Respondent has failed to</span><br><span>demonstrate the "propriety" of the wages paid to Petitioners.</span><br><span> For the reasons stated above, Respondent has failed to sustain its</span><br><span>burden to prove the propriety of the wages paid to the Petitioners. Where,</span><br><span>as here, the Respondent has failed to prove the propriety of the wages</span><br><span>paid, the consequent failure of Respondent to pay minimum wage to the</span><br><span>Petitioners constitutes a violation of §206 of the Act.127</span><br><span></span><br><span>XI. DAMAGES</span><br><span></span><br><span> Under 29 U.S.C. §216(b), employers who fail to pay minimum wage to</span><br><span>their employees are liable to the affected employees for the amount of</span><br><span>their unpaid minimum wages plus "an additional equal amount as liquidated</span><br><span>damages."128 I have been supplied with approximately three years of</span><br><span>detailed wage information for each Petitioner, and I have been asked to</span><br><span>award each Petitioner the difference between minimum wage and what the</span><br><span>Petitioner was actually paid by Respondent for that period.129 Petitioners</span><br><span>have not asked me to award them liquidated damages, interest or attorney</span><br><span>fees.</span><br><span></span><br><span>A. The Statute of Limitations in §255 of the Act does not Apply</span><br><span></span><br><span> Petitioners and Respondent are in agreement that §255 of the Act</span><br><span>establishes a two-year statute of limitations for back pay claims absent</span><br><span>willful violations of the Act, and they agree that statute of limitations</span><br><span>is applicable to this case.130</span><br><span></span><br><span> I disagree with the parties, and I find that the statute of</span><br><span>limitations contained in 29 U.S.C. §255 is not applicable to this</span><br><span>proceeding. The statute states:</span><br><span></span><br><span> Any action commenced on or after May 14, 1947, to enforce any</span><br><span> cause of action for unpaid minimum wages, unpaid overtime</span><br><span> compensation, or liquidated damages, under the Fair Labor Standards</span><br><span> Act of 1938 . . . may be commenced within two years after the cause of</span><br><span> action accrued, and every such action shall be forever barred unless</span><br><span> commenced within two years after the cause of action accrued, except</span><br><span> that a cause of action arising out of a willful violation may be</span><br><span> commenced within three years after the cause of action accrued;</span><br><span></span><br><span> I find the matter before me is not an "action commenced . . . to</span><br><span>enforce any cause of action for unpaid minimum wages, unpaid overtime</span><br><span>compensation, or liquidated damages" under the Act. I find instead that</span><br><span>this is a petition directed to the Secretary of Labor seeking to "obtain a</span><br><span>review of such special minimum wage rate"131 being paid to the Petitioners.</span><br><span>"Petitions" brought pursuant to §214(c)(5)(A) are clearly distinguishable</span><br><span>from an "action commenced . . . to enforce any cause of action for unpaid</span><br><span>minimum ages" in at least the following respects: (1) the §214(c)(5)(A)</span><br><span>proceedings are conducted by Administrative Law Judges, not by the Article</span><br><span>III judges who preside over the "actions" to which §255 applies; (2) the</span><br><span>parties to the "actions" referenced in §255 seek to obtain conclusive</span><br><span>judgments, while the object of "petitions" under</span><br><span>§214(c)(5)(A) is to obtain the "final agency action" referenced in</span><br><span>§214(c)(5)(E) and (F). I conclude that Section 255 refers and is applicable</span><br><span>to lawsuits brought in an Article III court, and I further conclude that</span><br><span>the statute of limitations contained in §214(c)(5)(E) does not apply to</span><br><span>this administrative proceeding before the Secretary of Labor and his</span><br><span>delegees.</span><br><span> I further find that application of the statute of limitations in §255</span><br><span>of the Act to the facts of this case would create an irreconcilable</span><br><span>conflict with the regulations governing my calculation of damages:</span><br><span></span><br><span> If the ALJ finds that the special minimum wage being paid or which has</span><br><span> been paid is not justified, the order shall specify the lawful rate</span><br><span> and the period of employment to which the rate is applicable. In the</span><br><span> absence of evidence sufficient to support the conclusion that the</span><br><span> proper wage should be less than the minimum wage, the ALJ shall order</span><br><span> that the minimum wage be paid.132</span><br><span></span><br><span> The plain reading of 29 C.F.R. §525.22(e) instructs me to determine</span><br><span>the "period of employment" over which unpaid minimum wages are to be paid</span><br><span>to the Petitioners. There is no reference in 29 C.F.R. §525.22(e) to the</span><br><span>statute of limitations contained in §255 or the Act, or to any other</span><br><span>temporal limitation on the calculation and award of back pay. I am thus</span><br><span>constrained to calculate the "period of employment" without regard to the</span><br><span>§255 statute of limitations.</span><br><span> I further decline to import the statute of limitations contained in</span><br><span>§255 of the Act because of significant problems which would arise if one</span><br><span>attempted to apply the "willfulness" standard to matters brought under</span><br><span>§214(c)(5)(A). The problems which would inevitably arise when attempting to</span><br><span>apply the statute of limitations of §255 of the Act to petition actions</span><br><span>commenced under §214 of the Act lead me to conclude that the authors of the</span><br><span>Act did not intend the §255 statute of limitations to apply to §214</span><br><span>petition matters.</span><br><span> In McLaughlin v. Richland Shoe Co.,133 the word "willful" was given</span><br><span>the following meaning:</span><br><span></span><br><span> In 1965, the Secretary proposed a number of amendments to expand</span><br><span> the coverage of the FLSA, including a proposal to replace the 2-year</span><br><span> statute of limitations with a 3-year statute. The proposal was not</span><br><span> adopted, but in 1966, for reasons that are not explained in the</span><br><span> legislative history, Congress enacted the 3-year exception for willful</span><br><span> violations.</span><br><span></span><br><span> The fact that Congress did not simply extend the limitations period</span><br><span>to three years, but instead adopted a two-tiered statute of limitations,</span><br><span>makes it obvious that Congress intended to draw a significant distinction</span><br><span>between ordinary violations and willful violations.</span><br><span> In common usage the word "willful" is considered synonymous with such</span><br><span>words as "voluntary," "deliberate," and "intentional." See Roget's</span><br><span>International Thesaurus § 622.7, p. 479; § 653.9, p. 501 (4th ed.1977). The</span><br><span>word "willful" is widely used in the law, and, although it has not by any</span><br><span>means been given a perfectly consistent interpretation, it is generally</span><br><span>understood to refer to conduct that is not merely negligent. The standard</span><br><span>of willfulness that was adopted in Thurston-that the employer either knew</span><br><span>or showed reckless disregard for the matter of whether its conduct was</span><br><span>prohibited by the statute-is surely a fair reading of the plain language of</span><br><span>the Act.134</span><br><span> There is no question here that Respondent willfully did not pay</span><br><span>minimum wage to the Petitioners. Instead, Respondent sought and obtained</span><br><span>from the Department of Labor a series of Section 14(c) Certificates prior</span><br><span>to paying Petitioners less than minimum wage for their labor. I find the</span><br><span>notion of "willfulness" set forth §255 of the Act (and as defined in</span><br><span>McLaughlin v. Richland Shoe) overlooks the explicit authorization in the</span><br><span>Act for an employer to willfully pay employees less than minimum wage under</span><br><span>certain circumstances. Importation of a willfulness standard to</span><br><span>§214(c)(5)(A) proceedings is highly problematic, and it does not seem to me</span><br><span>that Congress intended to apply the willfulness standard of §255 to</span><br><span>petitions brought under §214(c)(5)(A).</span><br><span> A willfulness standard is inconsistent with the special relationship</span><br><span>between Petitioners and Respondent. Petitioners are not involved in</span><br><span>competitive employment. While they are "employees" in the sense that they</span><br><span>exchange their labor for compensation, they are simultaneously "clients" of</span><br><span>the Seneca County Board of Developmental Disabilities when at work. While</span><br><span>the immediate objective of the Petitioners may be to maximize their wages,</span><br><span>the objectives of Respondent are not limited to the labor-for-compensation</span><br><span>exchange. The overarching responsibility of Respondent is to provide</span><br><span>rehabilitation services to each Petitioner. In the discharge of its</span><br><span>overarching responsibility to provide services, Respondent willfully makes</span><br><span>many workplace choices which dramatically suppress the ability of the</span><br><span>Petitioners to earn wages. An example of such a choice-and of the tension</span><br><span>between being an "employee" and a "client"-was discussed during Dr.</span><br><span>Schroeder's testimony:</span><br><span></span><br><span> JUDGE BELL: Each of the Petitioners testified yesterday that some</span><br><span> portion of their workday, and I'm just going to say approximately an</span><br><span> hour of each workday, is spent in nonproductive work, a social</span><br><span> activity of some kind, an educational activity of some kind. Did you</span><br><span> discuss that or are you aware of the fact that that's part of their</span><br><span> daily schedule?</span><br><span></span><br><span></span><br><span> THE WITNESS: Yes. And that's-yes,</span><br><span></span><br><span></span><br><span> JUDGE BELL: And is that a hallmark of sheltered work?</span><br><span></span><br><span></span><br><span> THE WITNESS: It's not uncommon. It's-in other words, it's not</span><br><span> something that's necessarily designed in, that a shop must make</span><br><span> allowance or would be expected to make allowance for social or</span><br><span> recreational activities, but it's very common. And I mentioned earlier</span><br><span> the idea of no sense of urgency. I think that's part of that whole</span><br><span> mosaic in sheltered facilities.</span><br><span></span><br><span></span><br><span> JUDGE BELL: I don't want to put words in your mouth. Can you</span><br><span> extrapolate what you just said for me, please?</span><br><span></span><br><span></span><br><span> THE WITNESS: Oh, all right. I'll do my best. In other words, in an</span><br><span> ordinary work environment you don't have social activities as part of</span><br><span> the workday. And where I'm going with this is one of the concerns</span><br><span> about facilities is the mindset that the individuals who work there</span><br><span> are not employees but clients, that they're recipients of services.</span><br><span> And that's-that creates a very different set of expectations and a</span><br><span> very different work environment. If you listen to self-advocates who</span><br><span> have worked in segregated facilities, they talk about being treated</span><br><span> like children, having their decisions managed.</span><br><span> And I'm not-I don't-I'm not making any assertion about this</span><br><span> particular facility and I'm not trying to disparage it, but I'm saying</span><br><span> that the work environment is very often one of low expectations and</span><br><span> not intentionally, not deliberately, but when you hear about extended</span><br><span> break times, social activities, going on walks, these are not things</span><br><span> that you would ordinarily have in the competitive work environment and</span><br><span> it-so it sets a different climate, a different tone to the workday.135</span><br><span></span><br><span> Respondent makes rehabilitation decisions which may have an adverse</span><br><span>impact on the wages earned by Petitioners and their co-workers. These</span><br><span>decisions by Respondent are clearly willful (as defined by the Court in</span><br><span>McLaughlin). Application of the statute of limitations from §255 of the Act</span><br><span>to such decisions by the employer does not seem to be what Congress</span><br><span>intended in drafting the Act.</span><br><span> Finally, I reject application of the willfulness standard of §255</span><br><span>because I find it would impermissibly shift an important aspect of proving</span><br><span>the "propriety of the wage" from the Respondent to the Petitioners in</span><br><span>violation of 29 C.F.R. §525.22(d). In any case where a disabled employee</span><br><span>brings her concerns about the propriety of wages paid to the Secretary, the</span><br><span>regulations make it clear that "the burden of proof on all matters relating</span><br><span>to the propriety of a wage at issue shall rest with the employer."136</span><br><span> If the employee is asserting (as Petitioners do here) that wages</span><br><span>going back more than two years were not properly paid, then requiring such</span><br><span>employees to prove willfulness in order to evade the §255 statute of</span><br><span>limitations would shift to the employee a burden of proof related to "the</span><br><span>propriety of a wage at issue" in order to recover wages not properly paid</span><br><span>beyond the second year. Requiring the employee to assume this burden of</span><br><span>proof would not only violate the plain language of the regulation, but</span><br><span>would add an additional burden to a disabled employee seeking only to</span><br><span>vindicate his right to be paid a minimum wage. Many of those being paid</span><br><span>special minimum wages under a Section 14(c) Certificate would be expected</span><br><span>to have difficulty understanding how the wages paid to them for their labor</span><br><span>have been calculated,137 and I conclude that it would be inconsistent with</span><br><span>29 C.F.R. §522(d) to require a petitioner to have the burden to prove</span><br><span>willfulness simply in order to obtain a full recovery of the wages to which</span><br><span>they are entitled. I believe the burden always remains on the employer to</span><br><span>show the propriety of the wages paid in all years.</span><br><span> For all of the reasons above, I conclude that the statute of</span><br><span>limitations in §255 of the Act does not apply to this case. Therefore, I</span><br><span>will provide Petitioners with an award of underpaid wages for the period</span><br><span>December 28, 2012, to December 25, 2015, without requiring them to</span><br><span>demonstrate willfulness.</span><br><span></span><br><span>B. The Award of Back Pay to Petitioners is Appropriate</span><br><span></span><br><span>The controlling regulation states:</span><br><span></span><br><span> If the ALJ finds that the special minimum wage being paid or</span><br><span> which has been paid is not justified, the order shall specify the</span><br><span> lawful rate and the period of employment to which the rate is</span><br><span> applicable. In the absence of evidence sufficient to support the</span><br><span> conclusion that the proper wage should be less than the minimum wage,</span><br><span> the ALJ shall order that the minimum wage be paid.138</span><br><span></span><br><span> The plain language of the regulation requires me to make three</span><br><span>findings in order to calculate the damages to be awarded to each of the</span><br><span>Petitioners: (1) determine the amount of the hourly wage to be paid; and</span><br><span>(2) determine the period of time over which the hourly wage determined in</span><br><span>step (1) is to be paid; and (3) determine the applicable minimum wage for</span><br><span>all periods in question.</span><br><span> Consistent with the plain language of the regulation, I find each</span><br><span>Petitioner should have been paid the then-applicable minimum wage for each</span><br><span>hour of work performed at Respondent's Fostoria manufacturing facility</span><br><span>during the period December 28, 2012, to December 25, 2015. I have chosen to</span><br><span>award damages during this period because: (1) that is the only period for</span><br><span>which I have detailed wage information for each of the Petitioners, and (2)</span><br><span>I find Respondent failed to appropriately calculate the commensurate wage</span><br><span>paid to each Petitioner during that entire period.</span><br><span> I have determined that the minimum wage is to be paid during this</span><br><span>period because I do not have sufficient credible evidence by which I can</span><br><span>accurately calculate the proper wage to be paid. In order to make such a</span><br><span>calculation, I would, at a minimum, need credible evidence establishing the</span><br><span>rates of production for the Petitioners and the non-disabled standard</span><br><span>setters. For the reasons discussed in detail above, I do not believe I can</span><br><span>rely on the information in the record to establish an appropriate</span><br><span>commensurate wage for each of the Petitioners. The regulation instructs</span><br><span>that under such circumstances I am to determine that the minimum wage</span><br><span>applies.</span><br><span> I find that the Ohio minimum wage for the period December 28 to</span><br><span>December 31, 2012, was $7.70 per hour. The Ohio minimum wage throughout</span><br><span>2013 was $7.85 per hour. The Ohio minimum wage throughout 2014 was $7.95</span><br><span>per hour. The Ohio minimum wage throughout 2015 was $8.10 per hour.</span><br><span> I find that the Petitioners are entitled to the minimum wage for every</span><br><span>hour of covered employment. The minimum wage rate will therefore be applied</span><br><span>to the three years of wage data supplied by the Petitioners to calculate</span><br><span>their entitlement to remedial back pay.</span><br><span> The following table outlines the Petitioners' hourly damages by</span><br><span>year:139</span><br><span></span><br><span>|PETITIONER |YEAR |TOTAL HOURS |COMMENSURATE |MINIMUM |TOTAL BACK |</span><br><span>| | |WORKED |WAGE PAID |WAGE |PAY OWED140|</span><br><span>|RALPH "JOE" |2012 |4.5 |$2.02 |$7.70 |$25.56 |</span><br><span>|MAGERS | | | | | |</span><br><span>| |2013 |290 |$2.52 |$7.85 |$1,545.72 |</span><br><span>| |2014 |406.04 |$4.77 |$7.95 |$2,110.45 |</span><br><span>| | | |$2.77 | | |</span><br><span>| | | |$2.79 | | |</span><br><span>| |2015 |564 |$2.94 |$8.10 |$2,881.61 |</span><br><span>| | | |$3.00 | | |</span><br><span>| | | |$3.15 | | |</span><br><span>|TOTAL | | | | |$6,537.78 |</span><br><span>|PAMELA STEWARD |2012 |2.5 |$2.00 |$7.70 |$14.25 |</span><br><span>| |2013 |478 |$2.00 |$7.85 |$2,773.76 |</span><br><span>| | | |$2.05 | | |</span><br><span>| |2014 |303.5 |$3.20 |$7.95 |$1,438.22 |</span><br><span>| | | |$3.22 | | |</span><br><span>| |2015 |268.75 |$3.22 |$8.10 |$1,311.50 |</span><br><span>|TOTAL | | | | |$5,537.73 |</span><br><span>|MARK FELTON |2013 |173.75 |$2.49 |$7.85 |$921.01 |</span><br><span>| | | |$2.55 | | |</span><br><span>| |2014 |397.25 |$3.89 |$7.95 |$1,603.32 |</span><br><span>| | | |$3.93 | | |</span><br><span>| |2015 |421.5 |$3.93 |$8.10 |$1,682.84 |</span><br><span>| | | |$4.11 | | |</span><br><span>|TOTAL | | | | |$4,207.17 |</span><br><span></span><br><span></span><br><span> I find the Respondent owes Petitioner Magers $6,537.78 in hourly back</span><br><span>wages. Additionally, Exhibit A to Petitioners' Post-Hearing Brief</span><br><span>establishes that Petitioner Magers was paid less than minimum wages for</span><br><span>633.75 hours of piece work in 2013, resulting in an underpayment of</span><br><span>$1,445.29; 210.25 hours of piece work in 2014, resulting in an underpayment</span><br><span>of $655.94; and 54.25 hours of piece work in 2015, resulting in an</span><br><span>underpayment of $150.14. I find these piece work numbers to have been</span><br><span>correctly calculated, and I adopt them as part of my Decision. Accordingly,</span><br><span>in sum, Petitioner Magers is entitled to a total of $8,789.15 in back pay.</span><br><span> I find Respondent owes Petitioner Steward $5,537.73 in hourly back</span><br><span>wages. Additionally, Exhibit B to Petitioners' Post-Hearing Brief</span><br><span>establishes that Petitioner Steward was paid less than minimum wage for</span><br><span>11.5 hours of piece work in 2012, resulting in an underpayment of $30.10;</span><br><span>567.25 hours of piece work in 2013, resulting in an underpayment of</span><br><span>$1,661.39; 457 hours of piece work in 2014, resulting in an underpayment of</span><br><span>$1,445.56; and 251.75 hours of piece work in 2015, resulting in an</span><br><span>underpayment of $412.46. I find these piece work numbers to have been</span><br><span>correctly calculated, and I adopt them as part of my Decision. Accordingly,</span><br><span>in sum, Petitioner Steward is entitled to a total of $9,087.24 in back pay.</span><br><span> I find Respondent owes Petitioner Felton $4,207.17 in hourly back</span><br><span>wages. Additionally, Exhibit C to Petitioners' Post-Hearing Brief</span><br><span>establishes that Petitioner Felton was paid less than minimum wage for 9.5</span><br><span>hours of piece work in 2012, resulting in an underpayment of $16.98;</span><br><span>810.5 hours of piece work in 2013, resulting in an underpayment of</span><br><span>$3,022.04; 279 hours of piece work in 2014, resulting in an underpayment of</span><br><span>$1,302.11; and 156.75 hours of piece work in 2015, resulting in an</span><br><span>underpayment of $613.01. I find these piece work numbers to have been</span><br><span>correctly calculated, and I adopt them as part of my Decision. Accordingly,</span><br><span>in sum, Petitioner Felton is entitled to a total of $9,161.31 in back pay.</span><br><span></span><br><span>C. An Award of Liquidated Damages to Petitioners is Appropriate</span><br><span></span><br><span> Employers who violate the minimum wage provisions of the Act are</span><br><span>liable for not only the unpaid back wages, but also "an additional equal</span><br><span>amount as liquidated damages."141 These damages are considered</span><br><span>compensatory, not punitive.142 Double damages are the norm, single damages</span><br><span>are the exception.143</span><br><span> Petitioners do not request an award of liquidated damages.144</span><br><span>Respondent argues that the Petitioners "would not be entitled to liquidated</span><br><span>damages or attorney fees" because "this proceeding is brought pursuant to</span><br><span>29 U.S.C. §214(c), and 29 C.F.R. Part 525, not sections [29 U.S.C. 20]6 or</span><br><span>[20]7."145 I disagree with Respondent. I find that liquidated damages under</span><br><span>§216 are available for violations of §214 of the Act.146</span><br><span> An award of liquidated damages is not automatic.147 An Employer may</span><br><span>avoid liability for liquidated damages by establishing it acted</span><br><span>subjectively and objectively in good faith in its violation of the Act.148</span><br><span>In such cases, the Employer's burden is to establish that it had "an honest</span><br><span>intention to ascertain and follow the dictates of the Act" and that it had</span><br><span>"reasonable grounds for believing that [its] conduct complied with the</span><br><span>Act."149</span><br><span> In analyzing Respondent's conduct, I note that while the commensurate</span><br><span>wages paid to Petitioners were authorized by a series of §214(c)</span><br><span>Certificates, that fact alone is not dispositive. Each Certificate states</span><br><span>clearly: "The enclosed certificate does not constitute a statement of</span><br><span>compliance by the Department of Labor nor does it convey a good faith</span><br><span>defense to the employer should violations of the Fair Labor Standards Act .</span><br><span>. . occur."150 To the contrary, I find Respondent's repeated requests to</span><br><span>the Department of Labor for permission to pay Petitioners far less than</span><br><span>minimum wage imposes on Respondent a particularly high duty (approaching a</span><br><span>fiduciary duty) to make certain every aspect of the Petitioners' wages have</span><br><span>been accurately and fairly calculated.</span><br><span> I reach my conclusion about the existence of this high duty from the</span><br><span>following undisputed facts: (1) The regulations151 require the employer</span><br><span>possessing a Section 14(c) Certificate to make a series of "written</span><br><span>assurances" regarding how the employer will evaluate the compensation paid</span><br><span>to employees; (2) Petitioners have disabilities, including intellectual</span><br><span>disability. The ability of Petitioners to understand the calculation of the</span><br><span>"commensurate wages" being paid to them is very limited, and Petitioners</span><br><span>doubtless rely on Respondent to perform the wage calculations accurately;</span><br><span>(3) There is an extremely high potential for disabled workers to be</span><br><span>exploited in sheltered workshops. This potential becomes more concrete</span><br><span>where, as here, Petitioners are engaged in the manufacture of goods being</span><br><span>sold by a large corporation such as Roppe Industries.152 Roppe could hire</span><br><span>its own employees to replace the labor of Petitioners. If it chose to do</span><br><span>so, it would pay those non-disabled workers at least minimum wage.</span><br><span>Petitioners have been paid one-half or one-third of minimum wage for their</span><br><span>work on the Creform line.</span><br><span> A representative of Roppe occupies a seat on the Board of Directors</span><br><span>of Respondent. Roppe Industries is the landlord of Respondent. I find the</span><br><span>potential for Petitioners' exploitation to be high, and thus a high duty of</span><br><span>care should be imposed on Respondent to properly calculate their</span><br><span>commensurate wages.</span><br><span> One form of potential workplace exploitation comes from the</span><br><span>assignment of work in the Fostoria manufacturing facility. Mr. Biggert</span><br><span>testified:</span><br><span></span><br><span> Q. Okay. Do you have a sense or knowledge about how wages break</span><br><span> down for workers there on the line versus the-</span><br><span></span><br><span></span><br><span> A. It varies depending on the job; it varies depending on the</span><br><span> worker. There are some jobs that some workers really hit out of the</span><br><span> park, and there are other jobs where workers tend to struggle a little</span><br><span> bit more.</span><br><span></span><br><span></span><br><span> Q. So if you had a job where somebody's really hitting it out of</span><br><span> the park, as you say, say they're producing at a rate of $14 an hour</span><br><span> or $18 an hour as compared to the measure of productivity of the</span><br><span> standard setter, would you want to place that person on that job more</span><br><span> often?</span><br><span></span><br><span></span><br><span> A. Yes.</span><br><span></span><br><span></span><br><span> Q. Is there any reason you wouldn't place that person on the job</span><br><span> more often?</span><br><span></span><br><span> A. No. I mean, job availability sometimes is a bit of an issue. I</span><br><span> mean, we don't always need every job running at the same time.</span><br><span> Obviously, the assembly task at the end is the largest task we have.</span><br><span></span><br><span> Q. Um-hum.</span><br><span></span><br><span></span><br><span> A. But the only reason I can think that we wouldn't put somebody</span><br><span> who was performing well on a specific job would be job availability</span><br><span> and perhaps multiple people doing well on a job and wanting to make</span><br><span> sure that we're spreading that opportunity around as much as possible.</span><br><span></span><br><span></span><br><span> Q. So some folks might be doing very well on jobs and those same</span><br><span> folks might be doing very poorly on other jobs, is that correct?</span><br><span></span><br><span> A. That is possible, yes.</span><br><span></span><br><span> Q. Is there any consistency in some jobs, just everybody seems to</span><br><span> be getting particularly low wages or everybody seems to be getting</span><br><span> higher wages?</span><br><span></span><br><span></span><br><span> A. Not that I know of.</span><br><span></span><br><span></span><br><span> Q. Are you familiar with the productivity and wages that Mr.</span><br><span> Magers, Ms. Steward, and Mr. Felton have received?</span><br><span></span><br><span></span><br><span> A. Yes, to some degree.</span><br><span></span><br><span> Q. Okay. And they're-would you agree that all three of them at</span><br><span> times, for instance, on the auto pad print machine are earning well</span><br><span> above minimum wage, is that correct?</span><br><span></span><br><span></span><br><span> A. Yes.</span><br><span></span><br><span></span><br><span> Q. Is that unusual or is that consistent with other folks that</span><br><span> also operate that machine?</span><br><span></span><br><span></span><br><span> A. I don't know the answer to that question. While I do know the</span><br><span> productivity of the three Petitioners, part of that has been in prep</span><br><span> for what we've been doing right now. I'm sure we have many people who</span><br><span> do well on that machine, and I'm sure we have others who probably do</span><br><span> not.</span><br><span></span><br><span></span><br><span> Q. Do you have anybody who's been sort of reviewing the</span><br><span> productivity of-I mean, it sounds like you've got a lot of managers.</span><br><span> Let me back up. Is there anybody who is trying to select appropriate</span><br><span> people for appropriate tasks?</span><br><span></span><br><span></span><br><span> A. I think the staff do that on a day-to-day basis. You know, if</span><br><span> Laurie [Fretz] knows somebody's good at a particular task and that's a</span><br><span> task we need to get a lot of done that day, that person will go on</span><br><span> that task.153</span><br><span></span><br><span> I do not see any corroboration in the Petitioner's pay records that</span><br><span>they are frequently assigned jobs where they "knock it out of the park" in</span><br><span>terms of making minimum wage or more. Although an employer may possess a</span><br><span>Section 14(c) Certificate, I nonetheless conclude that, to the extent such</span><br><span>work is available, the employer is required to allocate work in such a</span><br><span>manner that as many employees may earn minimum wage as frequently as</span><br><span>possible. It does not appear to me that such an allocation of higher-paying</span><br><span>work has been made to the Petitioners here, and I find the failure of</span><br><span>Respondent to make work assignments so as to maximize wages subjects</span><br><span>Respondent to liquidated damages.</span><br><span> Respondent argues in its Post-Hearing Brief that its administration of</span><br><span>"timely wage surveys and hourly job samplings" evinces an effort to comply</span><br><span>with the mandates of the Act.154 However, as noted above, the artificiality</span><br><span>of those evaluations undermines their probative value as evidence of</span><br><span>attempted compliance. Similarly, I reject Respondent's argument that its</span><br><span>provision of "a discretionary increase on top of the commensurate wage . .</span><br><span>. provide[s] extra compensation to workers with disabilities . . . to which</span><br><span>they are not otherwise entitled" as evidence of good faith dealing with</span><br><span>Petitioners. The record supports that the Petitioners were not impaired for</span><br><span>the work performed, a fact which would have been discovered by the</span><br><span>Respondent had it engaged in an honest and meaningful evaluation of their</span><br><span>production. Therefore, its provision of a "discretionary increase," which</span><br><span>still amounts to less than the minimum wage, does not establish an honest</span><br><span>attempt to ascertain and follow the dictates of the Act. Notably, although</span><br><span>not categorized as such by the Petitioners, the Respondent's discretionary</span><br><span>payments could be equivocally interpreted as an attempt to disincentivize</span><br><span>administrative review of the special minimum wage.155</span><br><span> Respondent was required by the regulations to review the special</span><br><span>minimum wages being paid to Petitioners "at a minimum of once every six</span><br><span>months."156 Where, as here, there is such extraordinary variance in the</span><br><span>production rates of the standard setters, I conclude Respondent should not</span><br><span>have continued to rely on the same standard setter production data year</span><br><span>after year. I believe Respondent violated 29 C.F.R. §525.9(b)(1) in that</span><br><span>Respondent did not conduct an appropriate review of all of the data that</span><br><span>goes into the formula by which Petitioners' wages are established. On the</span><br><span>facts of this case-where the standard setter production data is so</span><br><span>inconsistent-Respondent's failure to review that data at least at 6-month</span><br><span>intervals subjects Respondent to liquidated damages.</span><br><span> I have set forth earlier in this decision the various ways in which</span><br><span>Petitioners wages were not appropriately calculated. I have set forth</span><br><span>numerous examples of the documentation of how Petitioners' wages were</span><br><span>calculated is inaccurate or missing. These acts and omissions violate the</span><br><span>heightened duty of care I have found applicable, and the repeated nature of</span><br><span>these acts and omissions subjects Respondent to liquidated damages.</span><br><span> Petitioners' wage data reveals other unexplained variances in the</span><br><span>wages paid by the Respondent. For example, Petitioner Felton was employed</span><br><span>as a "Production Helper" for a total of six hours during the pay period</span><br><span>ending March 7, 2014.157 It was agreed by Respondent and Petitioners that</span><br><span>Production Helpers earn minimum wage as a matter of course. However, Mr.</span><br><span>Felton earned minimum wage for only four of the six hours he worked as a</span><br><span>Production Helper during the period. Without explanation, the Respondent</span><br><span>paid Mr. Felton $0.03 per hour for a fifth hour of the same work and $0.25</span><br><span>per hour for a sixth hour of the same work.158 Similarly, Mr. Magers was</span><br><span>paid $15.48 per hour for 1.75 hours of work on the Creform line during the</span><br><span>September 6, 2013, pay period, and $2.52 per hour for 23.75 hours of work</span><br><span>on the Creform line during the September 20, 2013, pay period.159 These</span><br><span>unexplained events lead me to conclude that good faith has not been</span><br><span>demonstrated by Respondent.</span><br><span> I also conclude Respondent has attempted to interfere with the fair</span><br><span>adjudication of this matter by making large, unexplained, payments to each</span><br><span>of the Petitioners on the very eve of this matter going to hearing. The</span><br><span>"MISC ADJ" payments made by Respondent to Petitioners in late December 2015</span><br><span>of between $435 and $685 represent a substantial portion of the income made</span><br><span>by Petitioners during the 2015 calendar year. Questions about these</span><br><span>payments were raised in the very first hours of a 5-day hearing, yet</span><br><span>Respondent never offered any explanation for these payments. If one does</span><br><span>not carefully study the line-items on Petitioners' wage documents, these</span><br><span>"MISC ADJ" payments paint a much more benign picture of how Petitioners</span><br><span>have been compensated. In the absence of any explanation, I conclude these</span><br><span>payments were made immediately before the hearing to paint a misleadingly</span><br><span>rosy picture of Petitioners' 2015 wages.</span><br><span> Respondent has failed to establish that it had reasonable grounds for</span><br><span>believing that its conduct complied with the Act. I find that Respondent is</span><br><span>liable for liquidated damages in an amount equal to the amount of unpaid</span><br><span>wages due to the Petitioners. Accordingly, Respondent owes each petitioner</span><br><span>an additional amount equal to the total back pay outlined above.</span><br><span></span><br><span>D. An Award of Interest is Not Appropriate</span><br><span></span><br><span> Federal Circuit Courts of Appeal are in disagreement about whether</span><br><span>prevailing plaintiffs in actions under the Act are entitled to pre-judgment</span><br><span>and post-judgment interest. The Second, Third, Ninth, and Eleventh Circuit</span><br><span>Courts of Appeal have held that while not mandatory, if pre- judgment</span><br><span>interest is not awarded, a court must explain why the usual equities in</span><br><span>favor of such interest are not applicable.160</span><br><span> The majority of Federal Circuits, however, have held that if a</span><br><span>petitioner is awarded liquidated damages under §216(b), then pre-judgment</span><br><span>interest is unavailable. In Herman v. Harmelech,161 the court held that</span><br><span>because liquidated damages were awarded, it was unnecessary to address the</span><br><span>Secretary's request for pre-judgment interest. Citing to Uphoff v. Elegant</span><br><span>Bath, Ltd.162 the court held that recovery of liquidated damages and pre-</span><br><span>judgment interest would amount to double recovery.163</span><br><span> The weight of authority supportive of this proposition relies on U.S.</span><br><span>Supreme Court precedent from 1945. In Brooklyn Sav. Bank v. O'Neil,164 the</span><br><span>Court established:</span><br><span> Interest is not recoverable in judgments obtained under §16(b). As we</span><br><span>indicated in our decision in Overnight Motor Co. v. Missel, [316 U.S. 572</span><br><span>(1942)], §16(b) authorizes the recovery of liquidated damages as</span><br><span>compensation for delay in payment of sums due under the Act. Since Congress</span><br><span>has seen fit to fix the sums recoverable for delay, it is inconsistent with</span><br><span>Congressional intent to grant recovery of interest on such sums in view of</span><br><span>the fact that interest is customarily allowed as compensation for delay in</span><br><span>payment. To allow an employee to recover the basic statutory wage and</span><br><span>liquidated damages, with interest, would have the effect of giving an</span><br><span>employee double compensation for damages arising from delay in the payment</span><br><span>of basic minimum wages. Allowance of interest on minimum wages and</span><br><span>liquidated damages recoverable under §16(b) tends to produce the</span><br><span>undesirable result of allowing interest on interest. Congress by</span><br><span>enumerating the sums recoverable in an action under §16(b) meant to</span><br><span>preclude recovery of interest on minimum wages and liquidated damages.165</span><br><span> I find that an award of pre-judgment interest on the back pay owed</span><br><span>the Petitioners would constitute double recovery since liquidated damages</span><br><span>have been awarded.</span><br><span> However, case law suggests that the Petitioners may also be entitled</span><br><span>to post-judgment interest.166 Under 28 U.S.C. §1961, post-judgment interest</span><br><span>may be compounded on civil monetary damages received in district court, and</span><br><span>in other express circumstances. However, §1961(c)(4) specifically disclaims</span><br><span>that "[t]his section shall not be construed to affect the interest on any</span><br><span>judgment of any court not specified in this section." Still, that statute</span><br><span>has been interpreted, albeit infrequently, to allow post-judgment interest</span><br><span>on monetary damages awarded in an administrative adjudication. See PGB</span><br><span>International LLC Co. v. Bayche Companies, Inc.167</span><br><span> I find that the imposition of post-judgment interest is not warranted</span><br><span>in this matter. As outlined below, in making its curative back pay and</span><br><span>liquidated damages payments to Petitioners, the Respondent will be required</span><br><span>to consider the extent to which lump sum payment might affect Petitioners'</span><br><span>eligibility to receive certain benefits and services crucial to the quality</span><br><span>of their lives. To the extent possible, Respondent is being directed to</span><br><span>work cooperatively with Petitioners to spread the payment of damages over a</span><br><span>sufficient number of months to ensure Petitioners retain eligibility to</span><br><span>necessary support programs. Because Respondent is being ordered to</span><br><span>potentially delay payment of the total sum due to Petitioners, subjecting</span><br><span>that sum to post-judgment interest would disincentivize meaningful</span><br><span>compliance with that directive. Accordingly, I find that the unique</span><br><span>equities of this case do not support an award of post-judgment interest.</span><br><span></span><br><span> E. An Award of Attorneys' Fees and Costs May be Appropriate</span><br><span></span><br><span> The Act authorizes the reviewing court to award the petitioner "a</span><br><span>reasonable attorney's fee" and "costs of the action."168 On January 21,</span><br><span>2016, the parties submitted a Stipulated Withdrawal of the Petitioners'</span><br><span>Motion for Sanctions, which states that each party has agreed to pay its</span><br><span>own costs and attorney's fees. If that Stipulation was intended only as a</span><br><span>waiver of attorney fees related to the Motion for Sanctions itself, then</span><br><span>counsel for Petitioners may submit an application for attorney fees and</span><br><span>costs within 14 days of the issuance of this Decision and Order. Respondent</span><br><span>shall have 10 days to oppose any request for the award of attorney fees.</span><br><span></span><br><span>XII. ORDER</span><br><span></span><br><span>1. Effective immediately, Petitioners Ralph ("Joe") Magers, Pamela</span><br><span>Steward, and Mark Felton shall each be paid minimum wage for each hour</span><br><span>worked at Respondent's Fostoria manufacturing facility;</span><br><span></span><br><span>2. Respondent shall pay Petitioner Ralph ("Joe") Magers the sum of</span><br><span>$17,578.30 ($8,789.15 in unpaid wages and $8,789.15 in liquidated damages);</span><br><span></span><br><span>3. Respondent shall pay Petitioner Pamela Steward the sum of $18,174.48</span><br><span>($9,087.24 in unpaid wages and $9,087.24 in liquidated damages);</span><br><span></span><br><span>4. Respondent shall pay Petitioner Mark Felton the sum of $18,322.62</span><br><span>($9,161.31 in unpaid wages and $9,161.31 in liquidated damages); and</span><br><span></span><br><span>5. Upon receipt of this Decision and Order, and before making any</span><br><span>payments of back wages and liquidated damages to the Petitioners,</span><br><span>Respondent shall contact counsel for Petitioners. Counsel shall discuss</span><br><span>whether the payment of the back wages and liquidated damages over a period</span><br><span>of time will allow the Petitioners to retain eligibility for benefits</span><br><span>Petitioners currently receive. Respondent shall pay the back wages and</span><br><span>liquidated damages over time if counsel for Petitioners so requests.</span><br><span>Otherwise those sums shall be payable within 30 days after the issuance of</span><br><span>this Decision and Order;</span><br><span></span><br><span>6. As outlined above, Petitioners may seek the award of attorney fees</span><br><span>and costs.</span><br><span></span><br><span>SO ORDERED.</span><br><span></span><br><span>Steven D. Bell Administrative Law Judge</span><br><span> ----------</span><br><span> Recipes</span><br><span></span><br><span> Last month we took a trip to the past to revisit some of the</span><br><span>delicious recipes that have been hiding in the Monitor archives. In fact,</span><br><span>we found so many delicious recipes that we're going to keep the retro</span><br><span>recipes rocking.</span><br><span></span><br><span> BROCCOLI SALAD</span><br><span> by Donna Biro</span><br><span></span><br><span> This recipe first appeared in the April 1994 Monitor. Here's how Donna</span><br><span>was introduced at the time: Donna Biro and her daughter Laura first found</span><br><span>the Federation at the 1992 NFB of Michigan convention. Since that time all</span><br><span>of the Biro family have been active members of the affiliate. Laura was a</span><br><span>1993 winner of both national and state NFB scholarships.</span><br><span></span><br><span>Ingredients:</span><br><span> 1 bunch broccoli, chopped</span><br><span> 1 medium purple onion, chopped</span><br><span> 5 slices bacon, fried crisp and crumbled</span><br><span> 1/2 cup sunflower seeds</span><br><span> 1/2 cup raisins</span><br><span> 1/2 cup shredded cheddar cheese</span><br><span></span><br><span>Dressing:</span><br><span> 3/4 cup mayonnaise</span><br><span> 1/4 cup sugar</span><br><span> 2 tablespoons dark vinegar</span><br><span></span><br><span> Method: Toss all non-dressing ingredients. Mix dressing ingredients</span><br><span>well and combine with broccoli mixture.</span><br><span> ----------</span><br><span> CHICKEN CHOW MEIN</span><br><span> by Deb Nefler</span><br><span></span><br><span></span><br><span> This recipe first appeared in the April 2004 Monitor. Deb Nefler was</span><br><span>secretary of the Falls Chapter of the NFB of South Dakota at the time.</span><br><span></span><br><span></span><br><span>Ingredients:</span><br><span>Vegetable cooking spray</span><br><span>1 1/2 cups chopped onion</span><br><span>1 cup sliced celery</span><br><span>1/2 cup chopped green pepper</span><br><span>2 cups cooked chicken, chopped</span><br><span>2-to-3 cups frozen Chinese vegetables</span><br><span>1 14-ounce can sliced mushrooms, drained</span><br><span>1/4 teaspoon ground cumin</span><br><span>1 tablespoon chicken-flavored bouillon granules</span><br><span>1 tablespoon cornstarch</span><br><span>3 cups water</span><br><span></span><br><span> Method: Coat a large skillet with cooking spray and place over medium</span><br><span>heat till hot. Add onion, celery, and green pepper and cook, stirring</span><br><span>constantly, three minutes or till vegetables are tender-crisp. Stir in</span><br><span>chicken, Chinese vegetables, mushrooms, and cumin and cook over medium heat</span><br><span>for one minute. Dissolve bouillon granules and cornstarch in cold water.</span><br><span>Add to mixture in pan and continue to cook over medium heat, stirring</span><br><span>constantly till thickened and bubbly. Note: Chicken Chow Mein may be served</span><br><span>over Chow Mein noodles or hot cooked rice. Serves seven with one-cup</span><br><span>servings.</span><br><span> ----------</span><br><span> MACARONI PIE</span><br><span> by David J. DeNotaris</span><br><span></span><br><span> This recipe first appeared in the Monitor in February 1995 with this</span><br><span>introduction: David DeNotaris is currently Job Opportunities for the Blind</span><br><span>coordinator for New Jersey. He is also a world champion power lifter.</span><br><span></span><br><span>Ingredients:</span><br><span>1 1/2 pounds ricotta cheese?</span><br><span>Black pepper to taste?</span><br><span>Garlic to taste?</span><br><span>7 eggs?</span><br><span>Salt to taste?</span><br><span>1 pound mozzarella?</span><br><span>Italian cheese, grated to taste?</span><br><span>1/2 pound thin spaghetti (broken in half)</span><br><span></span><br><span> Method: Cook spaghetti according to package directions and drain in</span><br><span>colander. In a large bowl beat eggs and then add ricotta and Italian</span><br><span>cheese. Add salt, pepper, and garlic to taste. Cut mozzarella into small</span><br><span>pieces and add to mixture. Stir in spaghetti and pour into greased baking</span><br><span>pans. Bake at 350 degrees from fifty minutes to one hour, or until top is</span><br><span>lightly browned and firm to the touch.</span><br><span> ----------</span><br><span> PALATSCHINKE</span><br><span> by Fred Wurtzel</span><br><span></span><br><span> This recipe first appeared in the May 2002 Monitor with this</span><br><span>introduction: Fred Wurtzel is president of the NFB of Michigan. He reports</span><br><span>that this is a simple family recipe.</span><br><span></span><br><span>Ingredients:</span><br><span>1 cup flour</span><br><span>2 eggs</span><br><span>1 cup milk</span><br><span>1 teaspoon vanilla</span><br><span></span><br><span> Method: You can vary this to accommodate the number to be served. Mix</span><br><span>ingredients together and then fry. These are like thin crepes. For a treat</span><br><span>we cook them in butter. Some like to roll them with cinnamon and sugar</span><br><span>inside. Others like cottage cheese and jam-whatever suits your fancy.</span><br><span> ----------</span><br><span> O'HENRY BARS?</span><br><span> by Linda Mentink</span><br><span></span><br><span> This recipe originally appeared in the October 1997 Monitor. At the</span><br><span>time Linda lived in Wisconsin and served as the president of the NFB Music</span><br><span>Division. She is a singer with several albums to her credit.</span><br><span></span><br><span>Ingredients:</span><br><span>1 cup melted butter or margarine?</span><br><span>1 cup granulated sugar?</span><br><span>1 cup brown sugar?</span><br><span>4 cups oatmeal</span><br><span></span><br><span> Method: Mix all ingredients well and press into a lightly-greased</span><br><span>cookie sheet with sides. (Mine measures about 10 by 14 inches.) Bake at 350</span><br><span>degrees for ten to twelve minutes. Cool to room temperature. Pour over this</span><br><span>a topping made of one cup crunchy peanut butter and one cup chocolate chips</span><br><span>melted and stirred together well. Spread topping and chill bars. Cut before</span><br><span>serving.</span><br><span> ----------</span><br><span> IOWA APPLESAUCE CAKE?</span><br><span> by Terry E. Branstad</span><br><span></span><br><span> This recipe first appeared in the June 1993 Monitor. Terry Branstad</span><br><span>was the governor of Iowa at the time.</span><br><span></span><br><span>Ingredients:</span><br><span>1/2 cup butter, margarine, or shortening?</span><br><span>3/4 cup sugar?</span><br><span>3/4 cup packed brown sugar?</span><br><span>1 egg?</span><br><span>2 cups all-purpose flour?</span><br><span>2 teaspoons baking powder?</span><br><span>1 teaspoon baking soda?</span><br><span>1 teaspoon ground cloves?</span><br><span>1-1/2 cups applesauce?</span><br><span>1 cup raisins?</span><br><span>1/2 cup chopped pecans or walnuts</span><br><span></span><br><span> Method: In a large mixing bowl beat the butter for thirty seconds. Add</span><br><span>the sugars and egg, and beat until combined. Stir together the flour,</span><br><span>baking powder, baking soda, and spices. Add flour mixture alternately with</span><br><span>applesauce to butter mixture. Stir in raisins and nuts. Pour batter into a</span><br><span>greased 13-by-9-by-2-inch baking pan; spread evenly. Bake in a 350-degree</span><br><span>oven for thirty to thirty-five minutes or until a toothpick inserted in</span><br><span>center comes out clean. Cool in pan on wire rack; serves twelve.</span><br><span></span><br><span>Cream Cheese Frosting:</span><br><span></span><br><span>Ingredients:</span><br><span>2 3-ounce packages cream cheese, softened?</span><br><span>1/2 cup butter, softened?</span><br><span>2 cups powdered sugar, sifted</span><br><span></span><br><span> Method: Beat together cream cheese and butter. Then beat in 2-1/2 to 2-</span><br><span>3/4 cups sifted powdered sugar to make a spreadable frosting. A butter</span><br><span>frosting could be substituted for the cream cheese one.</span><br><span> For a decorative finish, set a doily lightly on the frosted cake and</span><br><span>sprinkle lightly with a mixture of cinnamon and nutmeg. Then carefully</span><br><span>remove the doily.</span><br><span></span><br><span> ----------</span><br><span> Monitor Miniatures</span><br><span></span><br><span> News from the Federation Family</span><br><span></span><br><span>Louisiana Center for the Blind Buddy and STEP Programs 2016:</span><br><span> Since 1989 the Louisiana Center for the Blind has offered an</span><br><span>innovative summer program for blind children in grades four through eight.</span><br><span>This summer, the Buddy Program promises to be full of learning</span><br><span>opportunities, new friendships, and fun-filled activities.</span><br><span> Many blind children have misconceptions about their blindness due to</span><br><span>the lack of positive blind role models and to the negative stereotypes</span><br><span>about blindness in society. Unlike other summer programs for blind</span><br><span>children, the Buddy Program is directed and staffed by competent blind</span><br><span>adults. Classes in cane travel are taught to instill independence and self-</span><br><span>confidence. The knowledge of Braille enables the blind child to compete on</span><br><span>terms of equality with sighted peers in the classroom and provides a solid</span><br><span>background in spelling and other grammatical skills. Computer literacy</span><br><span>classes expose a blind child to available adaptive equipment. Classes in</span><br><span>daily living skills promote equal participation in household duties such as</span><br><span>cooking, shopping, and cleaning. In addition to learning valuable</span><br><span>alternative techniques of blindness, children will enjoy participating in a</span><br><span>wide variety of exciting activities such as swimming, camping, bowling,</span><br><span>roller skating, and field trips.</span><br><span> The combination of hard work and fun activities will provide a</span><br><span>rewarding experience that children will cherish. Involvement in the Buddy</span><br><span>Program helps blind children realize that it is not blindness that holds</span><br><span>them back. Rather, it is the negative attitudes and misconceptions about</span><br><span>blindness that may prevent blind children from reaching their potential. At</span><br><span>the close of the program, parents are required to attend a Parents'</span><br><span>Weekend. This weekend will allow them to interact with other parents of</span><br><span>blind children and to learn what their children have discovered about their</span><br><span>blindness and themselves. Friendship, training, fun, growth, and</span><br><span>interaction between blind children and positive blind role models is how</span><br><span>the Louisiana Center for the Blind is "changing what it means to be blind."</span><br><span> The Louisiana Center for the Blind will sponsor one session of the</span><br><span>Buddy Program in 2016. Program dates are July 17-August 6.</span><br><span> Perhaps we will have the opportunity to work with your child this</span><br><span>summer. We know it will be a memorable experience for both you and them.</span><br><span>All interested families should visit <<a href="http://www.louisianacenter.org">www.louisianacenter.org</a>> for more</span><br><span>details and to apply. Please also feel free to contact our director of</span><br><span>youth services, Eric Guillory before April 8. Please email Eric at</span><br><span><<a href="mailto:eguillory at louisianacenter.org">eguillory at louisianacenter.org</a>> or call (800) 234-4166.</span><br><span> Due to limited space, we cannot guarantee that every applicant will</span><br><span>be granted enrollment. Please note that the fee for students not from</span><br><span>Louisiana is $1,000, which is all-inclusive save for transportation to and</span><br><span>from the program. The fee for Louisiana students is $500.</span><br><span></span><br><span>2016 Summer Training and Employment Project (STEP) Program:</span><br><span> Since 1985 the Louisiana Center for the Blind has been changing what</span><br><span>it means to be blind for adults from across America. In 1990 a program was</span><br><span>created to address the needs of blind high school students. The Summer</span><br><span>Training and Employment Project (STEP) Program is designed to introduce</span><br><span>blind teenagers to positive blind role models and to provide participants</span><br><span>with summer work experience.</span><br><span> The eight-week summer program will consist of two components. During</span><br><span>the first part of the program, competent blind counselors will instruct the</span><br><span>students in the alternative techniques of blindness. Classes in Braille,</span><br><span>cane travel, computer literacy, and daily living skills will be taught by</span><br><span>qualified blind instructors. In addition, seminars will be conducted in the</span><br><span>areas of job readiness, job interviewing skills, résumé writing, and job</span><br><span>responsibilities. The second part of the program will continue all aspects</span><br><span>of training and expand to include an employment dimension. Students will</span><br><span>have the opportunity to work fifteen to twenty hours a week at a local</span><br><span>business for which they will receive the federal minimum wage. The staff</span><br><span>will attempt to meet the job interests of the students. Instructors from</span><br><span>the Louisiana Center for the Blind will be available to provide on-the-job</span><br><span>assistance as needed.</span><br><span> The combination of work experience and blindness-related skills-along</span><br><span>with fun-filled activities such as cookouts, swimming, and various other</span><br><span>outings-will foster self-confidence and independence in young blind</span><br><span>teenagers. During the week of June 30 through July 5, students will attend</span><br><span>the national convention of the National Federation of the Blind in Orlando,</span><br><span>Florida. This exciting conference will allow them to meet thousands of</span><br><span>competent blind people from across the country. The students will also have</span><br><span>the chance to participate in a wide variety of informative seminars. At the</span><br><span>close of the program, parents will be required to attend a Parents'</span><br><span>Weekend, which will enable them to discover how much their children have</span><br><span>learned throughout the summer. The STEP program is designed to provide</span><br><span>invaluable work experience, friendships, opportunities for personal growth,</span><br><span>and cherished memories.</span><br><span> Training will begin June 12 and conclude August 6. Please visit</span><br><span><<a href="http://www.louisianacenter.org">www.louisianacenter.org</a>> to learn about more program specifics and to</span><br><span>complete an application.</span><br><span> Due to limited space, we cannot guarantee that every applicant will</span><br><span>be granted enrollment, and applicants must have an open case with their</span><br><span>state's vocational rehabilitation agency or other funding entity to cover</span><br><span>program costs.</span><br><span> Questions? Please call our director of youth services, Eric Guillory</span><br><span>at (800) 234-4166 or email him at <<a href="mailto:eguillory at louisianacenter.org">eguillory at louisianacenter.org</a>>.</span><br><span>"Together, we are changing what it means to be blind." Check out STEP and</span><br><span>find out how.</span><br><span></span><br><span>Braille Book Fair 2016:</span><br><span> Calling all Braille readers, teachers, and parents! It's that time</span><br><span>again to sort through all those boxes of Braille books and donate those</span><br><span>gently used but no longer needed Braille books to the 2016 Braille Book</span><br><span>Fair sponsored by the National Organization of Parents of Blind Children.</span><br><span> Our primary goal is to get more Braille books into the hands of</span><br><span>children, youth, and beginning adult readers-so here's what we need most:</span><br><span></span><br><span> . print/Braille storybooks (aka Twin Vision®)</span><br><span> . books in good condition</span><br><span> . leisure reading (fiction or nonfiction) books</span><br><span> . cookbooks and poetry</span><br><span></span><br><span> Children are so hungry for their own Braille books that every year,</span><br><span>despite generous donations of books, most of our books for young children</span><br><span>are gone in less than an hour. So begin your search through the boxes in</span><br><span>your basement and spare room, and get those books shipped to: 2016 Braille</span><br><span>Book Fair, National Federation of the Blind, 200 East Wells Street at</span><br><span>Jernigan Place, Baltimore, MD 21230.</span><br><span> Please note that you are shipping the books Free Matter for the</span><br><span>Blind; you do not need to pay to ship Braille items. Handwrite, stamp, or</span><br><span>affix a label to the upper right-hand corner of the box stating: FREE</span><br><span>MATTER FOR THE BLIND. Take your package(s) to your local post office.</span><br><span></span><br><span>Elected:</span><br><span> The NFB Greater Seattle chapter held elections on Saturday, January</span><br><span>16, 2016. The following officers were elected: president, Arielle</span><br><span>Silverman; first vice president, Mike Mello; second vice president, Jacob</span><br><span>Struiksma; secretary, Tanna Dieken; treasurer, Daniel Heathman; and board</span><br><span>members, Ellen Farber and Mary Helen Scheiber.</span><br><span></span><br><span>Elected:</span><br><span> At the January meeting of the Capital Chapter of the NFB of New</span><br><span>Jersey, the following were elected: president, Mary Jo Partyka; vice</span><br><span>president, Ben Constantini; secretary, David Mostello; treasurer, John</span><br><span>Lipton; and board members, Sue Constantini and Cindy Lipton.</span><br><span></span><br><span>Florida Affiliate Holding Raffle:</span><br><span> The Florida affiliate has started the 2016 fundraising campaign, and</span><br><span>this is something that you do not want to miss out on.</span><br><span> The raffle for the Shingle Creek is well on its way, and the Florida</span><br><span>affiliate welcomes your participation. The raffle is a two-night stay at</span><br><span>Shingle Creek, plus $50 per diem, or $300 cash (which is the value of the</span><br><span>package.) The tickets are one for $5.00 or three for $10.00. This raffle</span><br><span>will run through March 31. The winner will be contacted by telephone the</span><br><span>day of the drawing (March 31 at 7:30 p.m.). Also, the video recording will</span><br><span>be posted on YouTube. Once again the Florida affiliate thanks you for</span><br><span>supporting the work of the Federation.</span><br><span> You can pay by sending a check or money order to the NFB of Florida</span><br><span>c/o Jorge Hernandez, 201 NW 56th Ct., Miami, FL 33126. You may also pay by</span><br><span>PayPal by clicking on the link <PayPal.Me/nfbfl>.</span><br><span> If you have any questions, please feel free to contact Jorge</span><br><span>Hernandez, fundraising chair, at <<a href="mailto:jeh1065 at comcast.net">jeh1065 at comcast.net</a>> or by phone at (305)</span><br><span>877-2311.</span><br><span></span><br><span>Looking for Alumni of Residential Schools for the Blind:</span><br><span> My name is Ken Lawrence, and a couple of years ago I got inspired by</span><br><span>an attempt to start a division of the NFB. My enthusiasm was renewed by the</span><br><span>Seventy-Five Days of Action, but as I tried to find old friends who</span><br><span>attended various schools for the blind and other residential schools, I</span><br><span>kept hitting the same issue: the loss of the accomplishments achieved in</span><br><span>the schools for the blind by students my age. These accomplishments range</span><br><span>from athletics to performances in plays and recitals to participation in</span><br><span>programs like vending stands. When the residential schools for the blind</span><br><span>became institutions for multiple handicaps, some of the facilities were</span><br><span>repurposed. For example, I attended the Oakhill School for the Blind in</span><br><span>Hartford from 1974 to 1979. Six months after I left Oakhill, the auditorium</span><br><span>where I played Mayor Shinn in The Music Man was turned into a playroom for</span><br><span>younger kids. The swimming pool where we won Eastern Athletic Association</span><br><span>of the Blind Championships is also gone. The acorn shop which I helped</span><br><span>launch is gone also. Even finding alumni of my era is very difficult.</span><br><span> I'm asking readers of the Braille Monitor for help. I'd like alumni</span><br><span>of residential schools for the blind to write down their memories of their</span><br><span>days at school, of the awards they won, the competitions, the activities</span><br><span>they participated in, and the wonderful memories they made there. I would</span><br><span>like to see these memories preserved as the schools themselves change and</span><br><span>evolve into much different institutions than the ones we attended and</span><br><span>remember. Send your written memories to the Monitor at <<a href="mailto:gwunder at nfb.org">gwunder at nfb.org</a>>.</span><br><span></span><br><span></span><br><span> In Brief</span><br><span></span><br><span> Notices and information in this section may be of interest to Monitor</span><br><span>readers. We are not responsible for the accuracy of the information; we</span><br><span>have edited only for space and clarity.</span><br><span></span><br><span>Download Accessible Tax Information:</span><br><span> Get ready for the tax season! Hundreds of the latest accessible</span><br><span>federal tax forms and publications are available for download from the IRS</span><br><span>Accessibility Web page at <<a href="https://www.irs.gov/Forms-&-Pubs/Accessible-">https://www.irs.gov/Forms-&-Pubs/Accessible-</a></span><br><span>Products>. You can choose from large-print, text, accessible PDFs, e-</span><br><span>Braille, or HTML formats that are compatible with screen readers and</span><br><span>refreshable Braille displays. The IRS also provides American Sign Language</span><br><span>videos with the latest tax information at <<a href="https://www.irs.gov/uac/Videos-">https://www.irs.gov/uac/Videos-</a></span><br><span>American-Sign-Language-(ASL)>.</span><br><span></span><br><span></span><br><span>IRS Tax Return Preparation Help is Available:</span><br><span> Tax assistance is available to people with a physical disability or</span><br><span>are age sixty or older through the IRS Volunteer Income Tax Assistance</span><br><span>(VITA) or Tax Counseling for the Elderly (TCE) programs. You can find a</span><br><span>nearby VITA or TCE location by using the available locator tools at</span><br><span><<a href="https://www.irs.gov/Individuals/Free-Tax-Return-Preparation-for-You-by-">https://www.irs.gov/Individuals/Free-Tax-Return-Preparation-for-You-by-</a></span><br><span>Volunteers> or by calling (800) 906-9887. Publication 907, Tax Highlights</span><br><span>for Persons with Disabilities, explains the tax implications of certain</span><br><span>disability benefits and other issues and is available at <<a href="http://www.irs.gov">www.IRS.gov</a>>.</span><br><span></span><br><span>Information about NASA Internships Available:</span><br><span> Science, Technology, Engineering, and Mathematics (STEM) initiatives</span><br><span>have been a focus of the Federation in the last few years, and we have</span><br><span>enjoyed a long and fruitful relationship with NASA. Their interest in</span><br><span>seeking and growing qualified blind employees is unquestionable. If you</span><br><span>would like to subscribe to an announcement-only list about NASA internships</span><br><span>for persons with disabilities, please send an email to <nasainterns-</span><br><span><a href="mailto:request at freelists.org">request at freelists.org</a>> with 'subscribe' in the Subject field, or by</span><br><span>visiting the list page at <<a href="http://www.freelists.org/list/nasainterns">http://www.freelists.org/list/nasainterns</a>>. This</span><br><span>is an internship program, not an employment program. For NASA jobs, please</span><br><span>go to <<a href="http://www.usajobs.gov">http://www.usajobs.gov</a>>.</span><br><span></span><br><span>Registration for 2016 No Barriers Summit Now Open:</span><br><span> From June 23-26 No Barriers will host its annual signature event, the</span><br><span>Summit, this year at Copper Mountain in Colorado. Thousands of people of</span><br><span>all abilities from across the USA and around the world will embark on</span><br><span>exhilarating adventures in over fifty adaptive activities in sports,</span><br><span>adventure, arts, and education; be motivated by phenomenal speakers</span><br><span>and celebrities; and be inspired by some of the most creative and</span><br><span>innovative technologies, products, and services helping to transform lives.</span><br><span></span><br><span> Your four-day Summit Pass includes:</span><br><span> . All meals (except for the BBQ on Friday night)</span><br><span> . Invitations to Opening and Closing Ceremonies presenting famous</span><br><span> speakers and celebrities.</span><br><span> . Access to No Barriers University showcasing genius experts.</span><br><span> . Entry to Innovation Village, a trade show featuring the most</span><br><span> innovative products and services-register now!</span><br><span> . Admission to the Film Festival and Music Concert.</span><br><span> . Fun at Copper: zip lines, bumper boats, go-karts, mini golf,</span><br><span> fireworks spectacular, and more.</span><br><span> For more information check out our webpage at:</span><br><span><<a href="http://www.nobarriersusa.org/summit/">http://www.nobarriersusa.org/summit/</a>>.</span><br><span></span><br><span>Spoken Word Ministries Debuts New Christian Resource Library:</span><br><span> Spoken Word Ministries Inc., serving blind people since 1988,</span><br><span>announces the national launch of BrailleAudio, an internet-based Christian</span><br><span>resource library. BrailleAudio currently contains books in a DAISY format</span><br><span>similar to the format used by the National Library Service for the Blind</span><br><span>and Physically Handicapped (NLS). BrailleAudio makes books available for</span><br><span>download by its members, or the member can choose to participate in its</span><br><span>read-by-mail program if downloading is not an option. Any visually impaired</span><br><span>or blind person living in the United States or a patron of NLS is invited</span><br><span>to apply to join BrailleAudio. To apply for a free membership to</span><br><span>BrailleAudio, visit <<a href="http://www.brailleaudio.org">www.brailleaudio.org</a>> and click on the join link. You</span><br><span>may also apply by telephone by calling (919) 635-1000. We encourage family</span><br><span>members, friends, and professionals to assist those who request assistance</span><br><span>to help them apply for BrailleAudio membership. Please help only at the</span><br><span>request of the prospective member.</span><br><span> We thank the Lord for enabling us to launch BrailleAudio and invite</span><br><span>you to visit <<a href="http://www.brailleaudio.org">www.brailleaudio.org</a>>, where blind people read.</span><br><span></span><br><span></span><br><span> Monitor Mart</span><br><span></span><br><span> The notices in this section have been edited for clarity, but we can</span><br><span>pass along only the information we were given. We are not responsible for</span><br><span>the accuracy of the statements made or the quality of the products for</span><br><span>sale.</span><br><span></span><br><span>Wanted:</span><br><span> I want to purchase a Parrot Voice Mate. I am willing to pay premium</span><br><span>price. Please contact Ray Hicks at (269) 429-8676.</span><br><span></span><br><span>HumanWare Apex for Sale:</span><br><span> I have a BrailleNote Apex for sale. The unit includes a Braille</span><br><span>keyboard, a thirty-two cell Braille display, up-to-date software, an</span><br><span>Executive Products case, the Oxford Dictionary and Thesauras, the Sendero</span><br><span>GPS, and the AC adapter. I am asking $4,000 or best offer. I will accept</span><br><span>PayPal or checks for payment, and I will pay for shipping.</span><br><span> Contact Robert Stigile at (818) 381-9568 or by email at</span><br><span><<a href="mailto:rnstechnology at gmail.com">rnstechnology at gmail.com</a>>.</span><br><span></span><br><span> ----------</span><br><span> NFB Pledge</span><br><span> I pledge to participate actively in the efforts of the National</span><br><span>Federation of the Blind to achieve equality, opportunity, and security for</span><br><span>the blind; to support the policies and programs of the Federation; and to</span><br><span>abide by its constitution.</span><br></div></blockquote><blockquote type="cite"><div><span>_______________________________________________</span><br><span>Brl-monitor mailing list</span><br><span><a href="mailto:Brl-monitor at nfbcal.org">Brl-monitor at nfbcal.org</a></span><br><span><a href="https://nfbcal.org/mailman/listinfo.cgi/brl-monitor">https://nfbcal.org/mailman/listinfo.cgi/brl-monitor</a></span><br></div></blockquote></body></html>
More information about the NFBOK-Talk
mailing list