4

THE FLOOR IS GONE AND MODERN LOBBYING ARRIVES

In 1979 the Wall Street Journal pursued investigations of its own into the way some blind workers were paid. There had been newspaper stories related to sheltered workshops and their workers, but most had been soft news, human-interest pieces reported in a tone that relied less on objective statistics and more on feel-good profiles. One can find lots of these in archives of local newspapers as new sheltered workshops were opened. It’s revelatory to note that efforts the of the Journal didn’t focus on workers with different types of disabilities earning subminimum wages, only blind workers. This approach would be mirrored as the debate entered the early 2000s. It seemed that most people outside the disability systems could rationalize paying workers with intellectual disabilities much less, but for those with sensory disabilities, the argument for at least minimum wage was easier to make. Of course, that conclusion is based on myth and stigma; still the investigative focus was squarely on blind workers who were paid subminimum wages.

As had been the case in most of the federal oversight hearings, the Wall Street Journal’s investigation left out other workers under 14(c), those with intellectual and developmental disabilities, people with mental illness working inside asylums, and veterans with significant traumatic brain injuries engaged in therapeutic work and residing in the nation’s VA hospitals. The Journal published two stories about blind workers in sheltered workshops in New York City. One of the journalists, Jonathan Kwitny, was a prolific author of books on the mafia, the CIA, true crime, and maybe most pertinent, financial swindlers and their scams. The piece that first appeared provided the journalists’ point of view succinctly: “Blind people for years have entered the job market through so-called sheltered workshops, sheltered by law, that is, from having to pay the blind workers minimum wages.” Along with fellow reporter Jerry Landauer, who had written extensively about judicial ethics and corporate bribery and had had a hand in exposing Spiro Agnew, Kwitny brought to light the side of the 14(c) coin that most had not paid much attention to. The first of the two articles, “Many of the blind workers feel they are working at coolie wages, helping to fatten the profits not only of the charities that run the workshops but also of the big companies that contract with them.” Very few Americans at the time were aware of how 14(c) worked or that some workers were being paid pennies for their efforts. Later, in 2009, 2011, and 2013, the public’s lack of knowledge related to subminimum wages and the nonprofits charged with advocating for people with disabilities would be highlighted again. But in 1979 and 1980, the Journal articles were explosive, setting off alarms that would lead to more congressional interest in understanding the role the US government and more specifically the USDOL played in supporting the practices highlighted in the stories.

Contrary to the 1967–68 and 1978 oversight hearings, the USDOL now focused its attention not only on the oversight issues with 14(c) but the finances of the charity organizations holding the certificates and the companies that subcontracted with them to have menial tasks completed for well under the going rate. To fully appreciate how this issue was exposed and examined, we must consider how a typical contract is procured by the workshop manager.

In order to have tasks for workers to perform, sheltered-workshop managers market their services to companies in the community, sometimes locally owned and operated businesses. For instance, it was very common in the 1990s to see sheltered-workshop workers assembling cable company packages that included a cable box, instructions, a coaxial connector, and a remote intended to be shipped to a new subscriber. The package would arrive, and the customer could set up their own cable access. Some of these contracts came from locally owned enterprises, while others were simply subsidiaries of large communications corporations. A sheltered-workshop manager would meet with a cable company official and look over a sample of the completed package. The number of units needed within a specified time would be discussed along with issues such as transport to and from the warehouse, picking up the raw materials, and quality control. The meeting would end with the promise of a quote.

Back at the sheltered workshop a time study would be performed. Using a stopwatch and some knowledge of a worker’s bodily movements, an individual rate (but more likely a team-based average) would be arrived at. Next, the manager would try to arrive at a prevailing wage in the community. Those numbers would act as the baseline from which individuals or, more likely, teams, would be paid for their efforts. A quote would be approved by the executive director of the sheltered workshop and sent to the cable company representative. Often the quote for packaging for the cable company would be far lower than in the competitive market. This was theoretically good for the cable company, for the nonprofit, and for the 14(c) workers. The power and the right of denial are not equal, however. Both the cable company and the nonprofit sheltered workshop can say no, while the worker with the disability has much less say in the business arrangement, seeing that he has no labor union or separate advocate acting on his behalf. Such practices spurred an entire subset of new accreditations, training for staff, and a separate industry born to help legitimize time studies, prevailing rate calculations, and piece-rate determinations. There was money to be made in the tools and knowledge needed to “accurately” rate a worker’s productivity. It was common for a nonprofit to pay for staff to attend training in MODAPTS, described as a “predetermined motion time system used to perform labor minute costing.”1

Kwitny and Landauer attempted to get readers to contemplate the role of the nonprofits they believed were charitable in nature. They described the contracting arrangement in their article as “helping to fatten the profit of charities that run the workshops and the big companies that contract with them.” Until 1979–1980, the focus had only been on USDOL and the Wage and Hour Division, but readers of these articles saw that what appeared to be purely a good cause had some complexity, nuances of consideration that included corporations and some of the best-known nonprofits and charities in the country. The investigative reporters also unearthed the high salaries of the administrators running the 14(c) certificate programs that allowed blind workers to be paid less than the minimum wage.

While these stories were being reported in the Journal, significant changes in disability rights law were taking place. In 1979 the United States Supreme Court ruled for the first time on a case related to section 504 of the Rehabilitation Act of 1973, which required that programs receiving federal funds must make reasonable accommodations. In Southeastern Community College v. Davis, the Court deemed it too great a financial burden for the college to make the necessary accommodations for Francis Davis, a student with a hearing impairment who was applying to nursing school.2 The same year the National Alliance for the Mentally Ill was founded in Madison, Wisconsin, by parents of persons (children and adults) with mental illness. The disability rights movement was forging ahead while the issue of paying workers subminimum wages gained momentum and its defenders grew ever more dogmatic.

The Wall Street Journal articles quoted administrators defending the low wages on the grounds that blind workers produce less and “that most blind workers also receive SSI benefits.” This excuse harkens back to the early days of charitable work provided by religious-based organizations and the theory that those employed should be paying back whatever dole had assisted them. Kwitny and Landauer also pointed out that some blind workers had allegedly been fired for daring to dabble in pro-union talk. The articles were copied and shared with advocates, disability law attorneys, families, elected officials, and some of the same players from earlier congressional hearings, such as the National Federation of the Blind. Readers of the articles had strong opinions. The old complaints about the general public not understanding the central charge of the nonprofits echoed Blatt’s work in exposing the conditions in institutions and asylums, and a newer version of the same talking points was born over the course of the 1980s.

It was obvious that these stories were not going to simply disappear. The proponents of subminimum wages believed strongly that they must respond in a more formal way. Thus, the same entities that argued against the formation of unions by workers earning subminimum wages decided to pursue collective organizing in what would now be called a modern trade group association.

While nonprofits serving people with disabilities had organized in the past, most of those efforts had centered around parents forming associations related to a specific disability, such as the national ARC and NAMI organizations. There had been groups dedicated to religious charities and the poor that included disability, but the new trade group took its cue and mandate from similar groups in manufacturing, healthcare, and education. One of the first and largest trade groups was the Association of Rehabilitation Facilities. Many state chapters are still in operation today in Missouri, Illinois, Florida, West Virginia, and elsewhere. In the 1980s the nonprofits that joined such trade groups were just learning how to engage in governmental affairs, set policy priorities, and design lobbying processes. Another national trade group, ANCOR, the American Network of Community Options and Resources, is a national, nonprofit trade association representing more than 1,600 private community providers of services to people with disabilities. Combined, ANCOR supports over one million individuals with disabilities in the United States. Both ANCOR and ARF (mostly through its state chapters) became empowered to act and behave like big business through investing in lobbyists, first in state legislatures and later in Congress. Big names like Goodwill and Easter Seals joined and were active members, as were smaller agencies with similar missions. The introduction of formalized, organized, and staffed trade groups changed the way in which local disability agencies, many of them holding 14(c) certificates, got their messages to state and federal legislatures. Some trade groups formed “disability days” at their state capitals, and national conferences were annually held near Washington, DC. The field of disability training, employment, and rehabilitation had grown up and joined the ranks of professions formally represented by a collective group of like-minded professionals. Of course, there were dues to be paid, and funds raised in other ways to operate state chapters; along with it came power and influence. A professional working in Indiana in the 1980s recalled being summoned by the executive director of one of the state’s trade groups. “He had someone come and retrieve me from a bar in the hotel the conference was being held in. I was escorted up to meet the guy and the scene was like something out of The Godfather. The room was dark, and the guy said he had heard I was an up-and-comer, and he wanted to know what I wanted, if I wanted to run one of the big, sheltered workshops. I knew then the association had its power brokers.” These same groups would become more formally involved as the Government Accountability Office (GAO) started an inquiry into the specifics of 14(c), and they had a voice at the table during the House investigations in 1980 and the Senate’s again in 1982. The trade groups would lobby for the 1986 amendments to the law as well. The lessons learned during this formative time would highlight the interconnection of trade groups and subminimum wages; decades later those lessons would become critical, as a more political organization, ACCSES, formed in 2007, an entity that has fought hard against overturning section 14(c).

Because of the Wall Street Journal reporting, in the spring of 1980, two days of testimony were scheduled in the House under the auspices of the Subcommittee on Labor Standards. These oversight meetings were known as the Beard hearings, named after the chair, Edward Beard, a Democrat from Rhode Island. The findings were at best conflicted and at worst (as in previous hearings) an alarm sounding quite clearly on the practice of subminimum wages. Representative Patricia Schroeder (D-CO) made her point, though not in line with current views of disability-related language, saying the sheltered workshops were operating within a “schizophrenic” approach, apparently referring to the sheltered workshops’ roles as both employer and provider of rehabilitation services. Representative Schroeder believed the natural first step in remedying these conflicting roles was to reorganize the system itself; she called on the sheltered workshops and work activity centers to conceive of their “clients” only as bona fide employees. This distinction would change everything—from pay, the right to organize, and most importantly, the nonprofit’s ability to bill state and federal funders for rehabilitation services for the same workers for whom they were determining productivity levels. In other words, there was an incentive inherent in the setup of the sheltered workshops to label workers as unemployable outside the building. These hearings made that fact public.

In these hearings, as in the past, a representative from USDOL responsible for the operational oversight of section 14(c) provided remarks, mentioning the disability severity of some 180,000 sheltered-workshop workers in more than 4,000 locations nationwide and stating that the program had essentially been neglected by other administrations. Assistant Secretary for Employment Standards Donald Elisburg was candid, if somewhat nonchalant, in citing the many problems. He stated for the congressional record that the primary purpose of USDOL’s oversight was to monitor wage payments to ensure that handicapped workers were paid wages that accurately reflected their assessed productivity levels. USDOL “bears a particular responsibility to see that this program is vigorously enforced since these workers are largely unorganized and often hesitate to question their pay,” he said.3 Without the benefit of what came fully into light at Henry’s Turkey Farm thirty-one years later, Elisburg added, “To the extent there has been exploitation, it should never have been allowed. We are simply not going to allow it in the future.”4 He would return to testify as a citizen and lawyer nearly fifteen years later, in 1994.

In the room that day in May 1980 was a representative from NISH, the National Industries for the Severely Handicapped. NISH had spent $3.5 million in lobbying between 2008 and 2012. In 2013 NISH would relaunch under a new branding called SourceAmerica, following the release of some damning WikiLeaks tapes. Jerry Daugherty from NISH found fault in the 1980 hearings and was critical of the articles by Kwitny and Landauer, believing that it would be ill advised to take the Wall Street Journal reports as the only version of the story. In fact, Mr. Daugherty felt the need to contrast the views of NISH and his own with the Journal articles. “More important,” he said, referring to the conditions unearthed by Kwitny and Landauer, “is the opportunity to work.” Today we see his claim as problematic since he is speaking as a professional for workers with disabilities but painting the employment landscape of a marginalized group as an outsider as one whose organization also benefits from keeping wages low. Daugherty further testified, “To the handicapped individual, work means much more than therapy or wages. It means that there is a place to go where people are friendly, understanding and accepting. A place where the person has the chance to make a real contribution, to be appreciated as a valuable member of a team effort, and to participate in a meaningful and stimulating environment.”5 This language of apparent benevolence saturates the disability industrial complex and attempts to justify the billions of dollars of taxpayer funding expended on its operations.

Daugherty tried to explain that a sheltered workshop is run almost identically to a small, for-profit business, but a private business needs to pay minimum wage and can’t also bill state and federal rehabilitation funders for training their workers. The argument of Daugherty on behalf of NISH sidesteps their other streams of revenue, something a for-profit business simply could not overlook. In the end, he advised Congress that paying these workers minimum wage would be “disastrous.”

Daugherty was followed by testimony from one of the largest nonprofit members benefiting from NISH’s lobbying. Dean Phillips from Goodwill Industries attempted to explain the same conflicted roles emphasized in earlier Congressional hearings in 1967 and 1978. “Sheltered workshops are a very special kind of enterprise with a special type of employee or client.” Once again the roles are unclear—“special” describes both the place and the person, and the worker is both “employee” and “client.” Outside the disability industrial complex it’s difficult to find workers who consider themselves clients of their place of employment, and this obfuscation lead to even more confusion and game playing on behalf of the organizations using 14(c) certificates.

The blind workers were represented by Kenneth Jernigan of the National Federation of the Blind. While the organization had done stellar work over the decades advocating for its primary constituents, it had waffled and sometimes contradicted itself on the issue of subminimum wages—but not this time around. Jernigan was adamant as he testified. “Agencies which serve the blind and the workshops which employ the blind have often assumed the status of self-appointed spokesman for the blind.” Perhaps we see here what will end up thirty years later in the efforts by the NFB to bring attention to subminimum wages by calling for a boycott of Goodwill. Jernigan’s comments were an indictment of the entire industry of shelter workshops. “It unfairly discriminates . . . then forces the members of this class to justify every penny of their paychecks by means of productivity ratings.” Jernigan addressed the operation of some of the sheltered-workshops’ productions lines, belying the industry’s claim that they must run like any other business. “There is poor job layout and deliberate work-stretching by management during periods when contracts are slow.” This work stretching is one of the many inanities of the sheltered workshop industry: I have seen teams of workers earning subminimum wages seated at a table, one side of the team assembling an item, only to have it disassembled by workers on the other side of the table before being once again assembled by the original workers.

Perhaps most damning was Jernigan’s observation of an industry at odds with itself. The sheltered workshops, he stated, “have covered their business activities with a veil of social services,” addressing the “worker” versus “client” issue raised by Goodwill’s Dean Phillips. Finally, Jernigan described the workshops as conducting “very little rehabilitation and a whole lot of business and industrial activity.” Here Jernigan is on much more solid advocacy grounds than NISH or Goodwill, having actual experience with disability. He was born totally blind in Detroit and learned to work on a farm in Tennessee. After high school Jernigan managed a furniture shop in Beech Grove, Tennessee, making all the furniture and operating the business. From 1958 until 1978, he served as director of the Iowa State Commission for the Blind. In this capacity he was responsible for administering state programs of rehabilitation, home teaching, home industries, and library services for the blind and those with physical disabilities. The improvements made in services to the blind of Iowa under the Jernigan administration were groundbreaking: he believed that professionals relied on the medical-model approach to disabilities, which spent too much time on labels, deficits, and treatment. He challenged the notion that disability meant less capability.

In 1960 the NFB presented Jernigan with its Newel Perry Award for outstanding accomplishment in services for the blind. In 1968 Jernigan was given a special citation by President Johnson. Harold Russell, chairman of the President’s Committee on Employment of the Handicapped, came to Des Moines to present the award, noting, “If a person must be blind, it is better to be blind in Iowa than anywhere else in the nation or in the world.” The citation continued, “This statement sums up the story of the Iowa Commission for the Blind during the Jernigan years and more pertinently of its Director, Kenneth Jernigan. That narrative is much more than a success story. It is the story of high aspiration magnificently accomplished—of an impossible dream become reality.”6 Kenneth Jernigan used his voice and experience and moved well beyond the boundaries of the typical avenues of advocacy. His Press Club address was broadcast on National Public Radio, and he appeared on the Today Show and the Larry King Show. Jernigan’s testimony was respected and held considerable weight; his gravitas was not lost on the hearing’s committee, but in the 1980 hearings it wasn’t enough.

The beginning of the 1980s saw Congress pass the Civil Rights of Institutionalized Persons Act, which authorized the US Justice Department to file civil suits on behalf of residents of institutions whose essential human rights were being violated. Burton Blatt’s work to free people from the horrid conditions of spending another “Christmas in purgatory” had taken a significant step forward. Despite people with disabilities in the United States advocating, and in some cases risking their lives, for their inherent inalienable rights, however, their efforts would not be reflected in the most basic of workers’ rights, i.e., that of a protected and mandated minimum wage. The 1979 Wall Street Journal articles along with the 1980 Congressional hearings kicked off a decade that would see more contradictory changes in the FLSA law pertaining to section 14(c). The issues that had come up back in 1966 related to the separation and delineation between sheltered workshops and work activity centers reemerged. In 1966 legislators and the USDOL had sought to provide some guidance related to workers earning subminimum wages in the sheltered workshop versus workers whose output, according to evaluators, was more a therapeutic benefit in a work activity center. Many nonprofits had already embraced this distinction and had tried to delineate areas of the sheltered workshop from what would be the work activity center, but this too was problematic. While positions were raised on both sides, such as penalizing less productive workers, now increasingly referred to as “clients,” the discussion didn’t seem to focus on the most salient issue: if a person couldn’t move his hands quickly, why insist that same person perform a task that didn’t at least nominally correlate with his strengths? The arguments remained squarely on combining two programs (sheltered workshop and work activity center) with associated requirements into one. It was inevitable that the central concern of how a worker was paid would be revisited. The notion of determining a prevailing wage for a task by surveying similar businesses in the local area, and then rating an individual worker’s commensurate wage based on that person’s productivity level had its weaknesses. The accuracy of the sheltered-workshop’s assessment of prevailing wage was fairly loose and arbitrary; while some staff in the sheltered workshops and WACs received training in evaluating a person’s level of productivity, the evidence behind such findings was not established. Even if both the prevailing wage and the individual’s productivity could be measured with fidelity, the tasks offered to a worker were limited in choice. The disability industrial complex has an obvious incentive to label people as having low productivity, although we know that productivity can be enhanced with the right type of tasks, supports, and accommodations.

In September of 1981, the Government Accountability Office, spurred on by the Wall Street Journal articles and the Congressional hearings at which Jernigan had testified, issued a report finding that less than 17 percent of workers in sheltered workshops earned the federal subminimum wage rate, in other words, were paid at least half the federal minimum wage. The report also found that 60 percent of workers had been underpaid. The physical divider between some sheltered workshops and WACs in the same space was sometimes just a curtain or other temporary barrier. The GAO also reported widespread issues with the programs visited, citing “problems computing hourly rates” to be paid to workers. None of the report sounded a firm and confident endorsement in the official oversight systems that had only grown more inept as the sheltered-workshop system grew. An important finding criticized the level of productivity that might follow a person from job to job within the sheltered workshop: “Workers may switch jobs but retain the same hourly rate even though the individual’s ability and level of productivity will likely vary for different jobs.” Despite these concerns, industry lobbying efforts ultimately won out, and the sections of the FLSA requiring a wage floor for workers with disabilities were eliminated. By 1982 legislation was introduced to eliminate the separation of the WACs (which could essentially pay pennies on the hour because of their supposed therapeutic mission) from the sheltered workshops. The NFB suggested these two moves would “effectively repeal the 50% minimum wage rate.” Several more hearings and investigations by House members were conducted, but in 1986 there was no longer a floor to the subminimum wages that could be paid to a worker with disabilities. As in decades to come, the lobbyists managed to insert language that supposedly offered more protections by giving workers the opportunity to appeal their wage rates, but this was purposefully misleading window dressing. By all appearances, instead of updating and modernizing FLSA’s section 14(c), Congress had walked back protections, informed by the same nonprofit disability and employment agencies that would most benefit. Under the guise that the previous wage floor inadvertently discriminated against the most severely disabled workers, and to decrease red tape and burdensome oversight, President Reagan signed the bill into law.

The removal of the statutory subminimum wage would allow organizations like Goodwill to pay some of its workers just pennies. The 1980s saw more coordinated efforts in the way of advocacy while the issue of fair pay lagged behind. In 1983 the National Council on the Handicapped (NCH) made an urgent call to Congress to “act forthwith to include persons with disabilities in the Civil Rights Act of 1964, along with voting rights legislation.” The NCH would later become the National Council on Disability and played a pivotal role in researching the detrimental nature of section 14(c).

In 1985 the US Supreme Court ruled in City of Cleburne v. Cleburne Living Center that municipalities cannot use zoning laws to prohibit community-based group homes for people with intellectual and developmental disabilities from opening in a residential area simply because the residents were labeled as disabled.7 The Protection and Advocacy for Mentally Ill Individuals Act was passed, and another significant stride had been made on behalf of residents of mental health facilities, including institutions, treatment centers, and other types of segregated programs. By 1988 the students at Gallaudet University, “the world’s only university designed to be barrier-free for deaf and hard of hearing students,” would demand that the university appoint a deaf president in Irving King Jordan (he went by I. King Jordan) through their protest “Deaf President Now.” I. King Jordan had been in a motorcycle accident at age twenty-one that fractured his skull in two places, shattered his jaw, and severed the nerves in his ears. Jordan took the mantel on March 13, 1988, and the changes related to disability policy in the closing years of the decade did indeed seem biblical in name and nature. The reformation of the FLSA, however, continued to be mired in a potent mixture of lobbying, poor oversight, and competing interests.

As the late 1980s gave way to a new decade, a powerful piece of legislation, which would be referenced in the DOJ lawsuits regarding subminimum wages, was signed into law. On July 26, 1990, the landmark Americans with Disabilities Act was officially the law of the land. Three months later, after having completed my undergraduate work, I took my first job trying to help workers with disabilities in sheltered workshops leave for jobs in the community where they would be fairly compensated. Like many advocates, my employer was also the same nonprofit that ran the sheltered workshop, a common situation, I would later find out, and a pivotal issue in the DOJ lawsuits that would later arise. Just a year later, in 1991, Jerry’s Orphans would stage its first annual protest of the Jerry Lewis Muscular Dystrophy Association Telethon, which dismayed the host, as the self-advocates fought back against the pity and stereotypes they felt his efforts had trafficked in. Jerry’s Orphans was founded by Mark Ervin and his sister Cris, both former poster children, who, along with others, protested the Chicago MDA telethon events, and made a searing documentary called The Kids Are All Right.

In 1992 I met Riley in the institution in Indianapolis, and he was whisked off to a program before I could help him find a job. The subminimum-wage issue was reopened by Congress again just two years later, an occurrence that repeated for decades; while the issues remained roughly the same in 1994, the parties in disagreement had sharpened their skills of influence.

In March of 1994, the House Subcommittee on Labor Standards, Occupational Health and Safety took up the issue, led by Representative Austin Murphy, a Democrat from Pennsylvania. The panel heard from the NFB again. James Gashel argued that the so-called protections put in place in 1986 to afford workers with disabilities the right to challenge their assessed level of productivity and the subminimum wage assigned to their efforts was not working. Goodwill countered, with Admiral Cooney, the president and CEO from 1981 to 1995, stating that the protections “allow workers with disabilities or their guardians to appeal wage determinations to the Secretary of Labor.” It’s hard to imagine how a subminimum wage worker with disabilities would have easy access to a cabinet member. Admiral Cooney had been a supporter of Reaganomics and was quoted in the New York Times in his first year of running Goodwill, when it was a $ 264 million organization: “We’re a nonprofit corporation founded on the principles of capitalism. We’ve always believed it’s better to make people work for what they get than to just give it away.” Admiral Cooney also believed that imputations regarding the habitual exploitation of workers under section 14(c) were simply “un-substantiated allegations.”

When the 1994 hearings took place, I was a professional working inside the behemoth disability industrial complex. At conferences and through newsletters, I met people who were trying to overturn the practices of section 14(c), and I learned that there were leaders of sheltered workshops who were trying to shut down the very buildings they worked in. It was a revelation, first because it seemed righteously covert, and secondly, because I recognized in these people something missing from my union upbringing—a sense of camaraderie, of working together on something bigger than myself, a way to keep solidarity alive by putting another worker’s well-being if not above my own, then side by side. I started hearing that there were people who’d been fired from the nonprofit sheltered workshops for pointing out the oversight problems, the inherent injustice of subminimum wages. The idea that this wasn’t more widespread was a shock. Still, I tried hard to understand how the hearings were going. Since email wasn’t yet ubiquitous in the nonprofit world, that meant poring over reports and listening in on mammoth teleconference calls where people from all over the country were trying to find a way to overturn the 14(c) practice.

Donald Elisburg had left the Department of Labor in 1981 where he’d been assistant secretary and was now employed as an attorney in a private law firm. In 1978 and again in 1980 while still at the USDOL, he had been one of the first bureaucrats to provide facts and figures during the Beard hearings that followed the Wall Street Journal exposés. He had been blunt about how little oversight related to 14(c) was being done by the Wage and Hour Division at the USDOL nearly fifteen years earlier. He had vowed that exploitation would not go unnoticed and that the department would significantly step up its enforcement obligations. By all accounts, his testimony and reassurances seemed sincere and earnest. Indeed, Elisburg is still active within a broad range of labor issues; he’s spent his entire career advocating for worker rights. Elisburg’s testimony in 1994 was nothing short of astounding. Since 1981 he had been in private practice in Washington, DC, representing organizations on environmental, occupational health, training, worker disability, and labor standards issues, as well as legislative and regulatory matters. From 1986 to 1991, he was the executive director of the Occupational Health Foundation, an organization assisting five departments of the AFL-CIO on worker safety and health issues; from 1990 to 1992, he was the principal investigator and project director for the Center to Protect Workers’ Rights, a nonprofit organization supported by the Building and Construction Trades Department of the AFL-CIO to conduct and sponsor research concerning the quality of working conditions in the construction industry. Mr. Elisburg served on the governing council of the American Bar Association’s Labor and Employment Law section and was a former cochair of the section’s OSHA committee as well as its workers’ compensation committee. During the Carter administration he served as assistant secretary of labor for employment standards, which addresses the enforcement of protective labor standards laws such as minimum and prevailing wages, child labor and farmworker rights, equal employment in government contracts, and several worker compensation programs administered by the federal government. For seven years prior to that he was on the staff of the US Senate Committee on Labor and Human Resources, including three years as the committee’s general counsel and staff director.8 With this impressive background he found time to appear, as a private citizen, testifying in 1994. He was no longer optimistic that the FLSA section 14(c) standards could be brought under the control of deeper and more judicious oversight. As a bureaucrat, attorney, and citizen, he explained why the entire system was broken.

Elisburg’s experience had shown him that “the present system for challenging workshop abuses is a study in futility.”9 The protocols laid out in the 1986 amendments (especially related to a subminimum-wage worker’s appeal to the secretary of labor) along with other so-called oversight measures didn’t make sense. Elisburg argued they were “not only unhelpful, they are useless.”10 He believed the very structure of the system related to the law was woefully misconceived and lacking serious thought on the part of the party with the most power, once again not the worker with disabilities. For instance, how and who would pay attorney’s fees if subminimum wages were challenged was not specified, a basic legal consideration. As Elisburg pointed out, “Basically, the individual workers who are required to sign a complaint are put at tremendous risk of conflict with their employers under difficult employment circumstances.” The 1986 amendments allowed the subminimum-wage worker to have a complaint filed by a parent, a not-so-subtle reference to one of the enduring stereotypes of people with developmental disabilities, known as “the eternal child.” In sum, the entire process was fraught with provisions typical of the disability industrial complex, where the goal is to not afford basic civil rights but to maintain the status quo.

Elisburg also exposed the unrealistic enforcement of the timelines associated with a worker’s complaint, which gave the secretary ten days to assign a case to an administrative law judge, who was then supposed to hear the case within thirty days. He had recently been involved with a case in Texas that had taken over fifteen months to resolve, roughly more than ten times the amount of time written into the amendments. From this experience Mr. Elisburg noted that for the worker with the disability and their guardians to proceed with a complaint, they would need “expert economists and others in time and motion studies.”11 Elisberg’s testimony is rife with passion and a desire to make sense of a law that seemed only to get worse each time it was brought before Congress. Adamant, he pointed out that “the sheltered workshop personnel and management had little understanding of the rules, . . . the records they had were virtually nonexistent to support the exemption” (that is, to pay subminimum wages). He added, “And they had little economic justification for the wage scales they set.”12

In closing, Elisberg asked, “How in good conscience can we ask these workers to also foot the legal bill?” He did not believe any amount of oversight could remedy the essential flaws in the outdated system, adding that “to suggest a worker earning $2.05 an hour can afford legal counsel is ludicrous.”

One might expect that Elisburg’s testimony, as a USDOL insider, an attorney, and a concerned citizen, would have prompted the overhaul that the law needed, especially since the 1986 amendment had removed the wage floor and the reporting of abuses was essentially void or at the very least defunct, but it was not to be. Perhaps the lobbying by the sheltered-workshop industry had achieved its end, or maybe, since few subminimum-wage workers with disabilities were seen as constituents, the political will just was not there. As it turned out, no changes were made during 1994, in oversight, complaint processes, or reinstatement of the wage floor. Instead, the practice of paying subminimum wages to workers with disabilities went untouched and would remain that way for two more decades. It would take three women from Georgia, two with intellectual disabilities, to take their cases to the Supreme Court in order to win a decision that would set them free and create the basis for a real challenge to section 14(c), the sheltered-workshop system, and its lobbyists. The path would be a winding one, and justice would come only in short spurts. There had been oversight hearings for decades, and civil-rights wins too, but subminimum wages for workers with disabilities seemed cocooned in a time capsule.