November 17, 2016
Issued by ADMINISTRATOR DAVID WEIL
This Administrator’s Interpretation provides guidance regarding the impact of state laws that prohibit the payment of subminimum wages to workers with disabilities on the enforcement of section 14(c) of the Fair Labor Standards Act (FLSA). Employers paying subminimum wages to workers with disabilities under a section 14(c) certificate must pay these employees in accordance with both Federal and state laws. The issuance of a certificate under the provisions of section 14(c) of the FLSA does not excuse noncompliance with any state law establishing higher minimum wage requirements.
The Secretary of Labor is authorized to administer and enforce section 14(c) of the FLSA, which provides that “to the extent necessary to prevent curtailment of opportunities for employment, [the Secretary] shall” issue certificates permitting employers to pay subminimum wages to workers who have disabilities for the work to be performed. 29 U.S.C. 214(c). The regulations interpreting FLSA section 14(c) explain the certificate application process and the requirements for payment of subminimum wages under a certificate. See 29 CFR part 525.1 Subminimum wage rates permitted by section 14(c) must be based on the prevailing wage for the job and must be commensurate with the worker’s productivity as compared to the productivity of an experienced worker who is not disabled for the work to be performed. Under contracts with the Federal Government subject to the McNamara-O’Hara Service Contract Act (SCA) and the Walsh-Healy Public Contracts Act (PCA), employers with section 14(c) certificates are permitted to pay wages that are lower than the applicable prevailing wage under the contract to workers who have disabilities for the work to be performed.