Thursday, November 4, 2010

Is U.S. Immigration Policy a Disability Issue?

Hang in there with me on this one. It is a horrifying and complicated story.

I just finished reading a 62-page Petition filed against the U.S. Department of Homeland Security (DHS), Immigration and Customs Enforcement (ICE), for the illegal deportation of a disabled citizen. No one could make this story up. It covers the gamut of bigotry: racial profiling, indifference to and manipulation of a person with a disability, and several violations of the person's constitutional rights.

The Gist of It
Mark David Lyttle is a 33 years old man who was born in Salisbury, Rowan County, North Carolina to parents of Puerto Rican descent. He is a U.S. Citizen with all the birthrights to life, liberty and the pursuit of happiness that any person should enjoy. Because of an abusive home life, he was taken from his birth parents and adopted by the Thomas and Jeanne Lyttle when he was seven.

Mark is a person with multiple disabilities. He is bi-polar; has type II diabetes; cognitive delays; and significant reading, writing, comprehension, visual processing, conceptualization and memory disabilities. He does not speak Spanish.

The U.S. Department of Immigration deported Mark Lyttle to Mexico. Until is deportation, he had never been outside the U.S. What followed was four months of torment, wandering in and out of four Central American countries. Finally one sympathetic bureaucrat took the time to check out his claims. She found Mr. Lyttle's family, who were looking for him, but was unaware of what had happened to him. She issued him an U.S. Passport and sent him home to his family. That should have been the end of the story. Instead, it is just the beginning.

All this information comes from a Petition filed with the U.S. District Court, Northern District of Georgia, Atlanta Division. The disability language used in the petition is what you can expect from people who are not in the movement. Be prepared to cringe. If you want to read the entire petition, email me at and I will send it to you.

The Details
I've tried several ways to tell Mark Lyttle's story; it such a complicated and convoluted story, I finally settled on just telling it in chronological order. It makes the piece a little longer, but it is much easier to follow.

In the summer of 2008 Mr. Lyttle was a patient at Cherry Hospital (a psychiatric hospital in Goldsboro, NC). While there he was charged with inappropriately touching a female attendant and subsequently convicted of a misdemeanor charge of assault on a female. It wasn't his first brush with the law; his disabilities make it difficult for him to get along easily in society.

August 14, 2008: Mark Lyttle was sentenced to 100 days at the Neuse Correctional Center. He started serving that sentence on August 22, 2008. Because of his “obvious cognitive disorder” He was placed in the prison's mental health ward.

September 2, 2008: For reasons known only by ICE and Neuse Correctional Center, Mr. Lyttle was “apprehended” and interrogated by an ICE agent, without a witness present, an ICE rule. She gave him an assumed name of Jose Thomas, noted she believed the name Mark David Lyttle was an alias, and that he was a native of Mexico. She listed his home address of an assisted living facility in Elizabeth City NC. She also noted he entered the US without permission at age three. Where or how she got that information is unclear.

When she finished her interrogation, she did not let Mr. Lyttle review the entries on the “Record of Sworn Statement in Affidavit Form” on Jose Thomas, or get him help to understand anything that happened. The form includes the question if the subject is eligible for special status program; the agent wrote, “Mental illness and bipolar.” She instructed him to sign his name. He complied by signing his real name, Mark Lyttle.

September 4, 2008: Just two days later, the agent searched several computerized databases, found no record of a Jose Thomas, or that Mark Lyttle had ever used an alias.

September 5, 2008: The agent did a search of his criminal record that produced several entries indicating that Mark Lyttle was a U.S. citizen and had a valid Social Security number. Still, no finding of him ever having or using the name Jose Thomas.

Despite the evidence, another ICE agent signed a “Warrant for Arrest of Alien” and a “Notice of Intent to Issue Final Administrative Removal Order”. The documents show that ICE had already determined Mr. Lyttle was not a citizen of the U.S. ICE declared him a native of Mexico, and was deportable (sic) because he was convicted of aggravated felony.

To summarize: In three short weeks, Mark Lyttle went from serving a 100 day sentence for a misdemeanor, to being detained by the Department of Homeland Security until an immigration judge reviewed his status. All this happened to him without the benefit of any help, support, or legal representation. No one read or helped him understand the forms he was manipulated into signing. ICE continued to call him Jose Thomas, Mark continued signing all the documents with his real name.

ICE notes continued to note that Mr. Lyttle had a valid Social Security number.

September 23, 2008: One month and one day after beginning his misdemeanor sentence, He was transferred to the New Hanover Correctional Center. A week after that, he was transferred again to Greene Correctional Center where he was scheduled to be released about October 28, 2008.

October 28, 2008; He was not released. He was delivered into ICE custody and transferred to Stewart Detention Center; a place to house people awaiting determination of their immigration status.

November 3, 2008: In yet another interrogation by an ICE agent, Mark Lyttle stated definitively he was a citizen of the U.S., not a Mexican citizen. The agent noted that Mr. Lyttle was “a native of and citizen of the U.S.”

November 5, 2008: Nonetheless, ICE decreed that Mr. Lyttle should be deported. Why? The Petition states that it was because he had criminal convictions. Hell, I guess the U.S. could deport Scooter Libby for the same reasons... oh, no. They would not do that to Scooter. He's not brown.

Also on that day an agent filed a Notice to Appear for a Removal proceeding by an immigration judge, speeding up the process by removing a step; a hearing to see if the case was valid.

November 17, 2008: Mark Lyttle attempted suicide. Tragically sad, but not surprising considering what he was going through, the callousness of his treatment, and the lack of any sort of support whatsoever.

Georgia Public Health laws require that incarcerated people cannot self-medicate. Their medications must be distributed, one pill at a time. On this date, staff gave him a bottle of 60 Glucophage tablets. He was to take one a day to control his type II diabetes. Back in his cell, he took all of them. His life was saved after being rushed to Doctors Hospital in Columbus, GA.

December 9, 2008: Without the opportunity to present evidence and without legal representation, a judge issued an order that Mark Lyttle should be “returned” to Mexico. Under the law, judges are prohibited from doing just what was done to “unrepresented, incompetent respondents. Homeland Security is also prohibited by law to file charges on a person known to be “mentally incompetent.”

December 12, 2008: Yet another agent did a database search and found several references to Mr. Lyttle's Social Security number and that he was born in the U.S.

December 18, 2008: ICE took Mark Lyttle by plane to Hidalgo, TX, forced him to cross the border on foot, in his prison-issued jumpsuit. He had three dollars in his pocket.

Four Months in Central America
December 29, 2008: Mark had spent the proceeding days begging for food and sleeping in the streets. On this date, he tried to cross back into the U.S., at the same place he was dropped off. He was insistent about his U.S. Citizenship and residency in NC. So, Custom Border Patrol (CBP) looked him up in the database, saw he was a “prior deported alien” and that he had been returned to Mexico. He was not allowed back in.

Eventually, missionaries picked him up and moved him to Mexico City. They told him to find the American Embassy. Instead, Mexican Immigration officials arrested him for being unable to prove his Mexican citizenship and deported him to Honduras.

I am not making this up.

In Honduras, immigration officials arrested Mr. Lyttle and put him in an immigration camp, then transferred him to another. It was in Honduras, where Mr. Lyttle endured ”severe, harsh... and inhumane” physical and mental abuse. The Petition does not go into detail about what abuse, but it doesn't take much of an imagination to think what that might include.

Apparently, the Honduran media got wind of the story and the public outcry was so strong, they released him from jail. He was also arrested in Nicaragua because he could not produce any papers.

After four months he wandered and was in and out of jails and shelters. Eventually he ended up in Guatemala and found the U.S. Embassy. It was there that one person took the time to listen to him. The Embassy verified his identity, and contacted his brothers (both serve in the military). The brothers faxed the necessary forms (birth certificate, adoption records). The Embassy issued Mr. Lyttle a passport within 24 hours, booked him on a flight to Nashville to reunite with his family and on April 22, 2009, Mark Lyttle left Central America for home.

It's not the end of the story. Not even close!

Unfortunately, he had to travel through Atlanta GA customs. No surprise, CBP detained him because he was in the database as a deported alien. He told his story to the customs agents, who filled out a form, “Record of Deportable (sic)/Inadmissible Alien.”

April 23, 2009: ICE again issued an expedited removal order against him. But this time, his family was looking for him, since he did not arrive at the airport in Nashville. His brothers hired an attorney in Atlanta.

April 24, 2009: Mark David Lyttle is finally and forever (or until they racial profile him up again) released from ICE.

April 28, 2009: Mr. Lyttle's attorneys filed a motion to terminate efforts to ever deport him again.

October 2010: Attorneys for Mr. Lyttle filed a case in U.S. District Court against several agencies and individuals within the Department of Homeland Security for violating his fourth, fifth, fourteenth amendments rights, false imprisonment, negligence and several other crimes.

To date no one from the DHS, ICE or CBP has provided an explanation, or apologized to Mr. Lyttle for their actions.

Is this an isolated case? How often is it happening? What is Homeland Security doing, if anything, to create safeguards for people with cognitive and/or mental disabilities?

I will attempt to answer those questions in a second installment, in a few days.

Monday, November 1, 2010

Why Vote Tomorrow

I received this as an email. It was so good, I had to put it on my blog.

This is the story of our Mothers and Grandmothers and Great Grandmothers who lived only 90 years ago.

A turn of the century picture of a large gathering of women carrying signs that said, 'wilson is against women' demanding the vote.
Remember, it was not until 1920 that women were granted the right to go to the polls and vote.
about a dozen women carrying flags. I think they represented different groups of women working for the vote.

The women were innocent and defenseless, but they were jailed nonetheless for picketing the White House, carrying signs asking for the vote.

Woman in hat sitting in front of Cell #12, reading a newspaper.
And by the end of the night, they were barely alive.
Forty prison guards wielding clubs and their warden's blessing went on a rampage against the 33 women wrongly convicted of 'obstructing sidewalk traffic.'

(Lucy Burns)
They beat Lucy Burns, chained her hands to the cell bars above her head and left her hanging for the night, bleeding and gasping for air.
Photograph of a woman, wearing a hat. She has sad eyes. She's wearing a velvet choker around her neck.

(Dora Lewis)
They hurled Dora Lewis into a dark cell, smashed her head against an iron bed and knocked her out cold. Her cellmate, Alice Cosu, thought Lewis was dead and suffered a heart attack. Additional affidavits describe the guards grabbing, dragging, beating, choking, slamming, pinching, twisting and kicking the women.

Thus unfolded the
'Night of Terror' on Nov. 15, 1917, when the warden at the Occoquan Workhouse in Virginia ordered his guards to teach a lesson to the suffragists imprisoned there because they dared to picket Woodrow Wilson's White House for the right to vote.
For weeks, the women's only water came from an open pail. Their food--all of it colorless slop--was infested with worms.
Photograph of a woman sitting in a chair. She has dark hair. Her body is silhouette, her face is turned toward the camera

(Alice Paul)
When one of the leaders, Alice Paul, embarked on a hunger strike, they tied her to a chair, forced a tube down her throat and poured liquid into her until she vomited. She was tortured like this for weeks until word was smuggled out to the press.

So, refresh my memory. Some women won't vote this year because - why, exactly? We have carpool duties? We have to get to work? Our vote doesn't matter? It's raining?

Woman sitting at a table. She has something in her hand (unidentifiable) raised over her head.(Mrs. Pauline Adams in the prison garb she wore while serving a sixty-day sentence.)
Last week, I went to a sparsely attended screening of HBO's new movie 'Iron Jawed Angels.' It is a graphic depiction of the battle these women waged so that I could pull the curtain at the polling booth and have my say. I am ashamed to say I needed the reminder.
A suffragette wearing a suit, hat and carrying a flag that has a picture on it and reads 'new york'.

(Miss Edith Ainge, of Jamestown , New York )
All these years later, voter registration is still my passion. But the actual act of voting had become less personal for me, more rote. Frankly, voting often felt more like an obligation than a privilege. Sometimes it was inconvenient.
An older woman, in a winter coat, walking down a street.
(Berthe Arnold, CSU graduate)
My friend Wendy, who is my age and studied women's history, saw the HBO movie, too. When she stopped by my desk to talk about it, she looked angry. She was--with herself. 'One thought kept coming back to me as I watched that movie,' she said. 'What would those women think of the way I use, or don't use,
my right to vote? All of us take it for granted now, not just younger women, but those of us who did seek to learn.' The right to vote, she said, had become valuable to her 'all over again.'

HBO released the movie on video and DVD. I wish all history,
Social studies and Government teachers would include the movie in their curriculum I want it shown on Bunco night, too, and anywhere else women gather. I realize this isn't our usual idea of socializing, but we are not voting in the numbers that we should be, and I think a little shock therapy is in order.
Photograph of six women around a table, talking.
(Conferring over ratification [of the 19th Amendment to the U.S. Constitution] at [National Woman's Party] headquarters, Jackson Place Washington, D.C.]. L-R Mrs. Lawrence Lewis, Mrs. Abby Scott Baker, Anita Pollitzer, Alice Paul, Florence Boeckel, Mabel Vernon (standing, right))
It is jarring to watch Woodrow Wilson and his cronies try to persuade a psychiatrist to declare Alice Paul insane so that she could be permanently institutionalized. And it is inspiring to watch the doctor refuse. Alice Paul was strong, he said, and brave. That didn't make her crazy.

The doctor admonished the men: 'Courage in women is often mistaken for insanity.'

Please, if you are so inclined, pass this on to all the women you know. We need to get out and vote and use this right that was fought so hard for by these very courageous women. Whether you vote Democratic, Republican or Independent party - remember to vote.
Woman dressed in white behind bars, in cell number 10.(Helena Hill Weed, Norwalk, Conn. Serving 3 day sentence in D.C. Prison for carrying banner, 'Governments derive their just powers from the consent of the governed.')

History is made everyday. You can make it happen for the disenfranchised and forgotten tomorrow. Go Vote.

Sunday, October 31, 2010

How to Paint A Room, While Sitting on your Rump

I hear that necessity is the mother of invention; for us, necessity took the form of poverty.

We are fixing up our home, with the plan of putting it on the market in the Spring. For different reasons, Mike and I both have difficulty standing; we thought we could never do it ourselves; so we got a couple of bids to paint the six rooms we need to paint.

Yoikes, painters are expensive! Immediately after recovering from the sticker shock, we decided that we were going to become DIYers. However, there was no way we could do it the traditional way. With no other choice, we adapted the job to fit our abilities.

We just finished the living room, dining room and hallway today; and are struttin' like peacocks over our new neutral-so-buyers-can-see-their-own-stuff-in-the-room “Cincinnati Hotel Taupe” walls.

Picture of an office chair with a plastic drop cloth over it.We also thought there may be others who might not think they can paint their walls, because they use wheelchairs or cannot stand for any length of time... Hence, this blog on how we did it.

I use a scooter for mobility (my new power chair is in the pipeline—can't wait); it's not conducive for painting at all, so I used our office chair. To ensure that it stayed clean, it got its very own drop cloth. It slid around the house nicely while I was painting. I do have the use of my legs; so, I could just push off in any direction with ease. I do think that power chair users who cannot push off, could use their chairs, just as easily. Unless you are really really really neat, drop cloth cover it too.

It took us about three weeks to finish the job. That is probably longer than it would take most people. Among my list of medical conditions, I have chronic fatigue. Mike has to baby his back since his surgery in June. We could only work on the project a couple hours, every other day (sometimes 3 days would pass before we got back to it). Here's how we did it:

Room Prep

  • I moved the furniture... in my office chair. I pulled out the small pieces, turned my office chair around, touching the furniture and pushed it backward to one end of our living/dining room.

  • When we finished one area, I'd push it back the same way.

  • Power-chair users could accomplish these tasks much easier.

  • We did need a little help; taping the tops and down the sides of windows and doors about a foot. The rest we could reach from a chair. We were able to tape off baseboards, and ¾ way around the windows/doors while seated.

Photo of paint brush duct taped to a stick, and two paint rollersPainting

  • Supplies: You will need the traditional paint supplies, paint, drop cloths, a cut-in brush and a roller (we also used a mini roller, which was good in small spaces). The adaptive technology you will need is a long-handled broom stick handle. Make sure the roller brush holders have a place to screw the broom handle. And, of course, beer.

  • We used a canvas drop cloth to protect the floor from spatters, drips and beer spills; because you will knock over an open one with your chair; I personally guarantee it. The chair moved easier on canvas than those thin plastic dropcloths. Don't buy a canvas drop cloth at the hardware store. Go to a fabric store (Jo-Ann Fabrics). I found canvas in the bargain bin; it was less than half the price Lowe's wanted for a smaller size. Who cares if its edges are raw and not sewn, its a freaking drop cloth! A vinyl tarp might work well too, if you have one.

  • Applying paint from the baseboards to over our seated heads was easy and required no accommodation, except of course that we were on our rumps.

  • Once we could no longer reach, we attached a broom handle to the rollers and duct taped the brush to another. We did all the roller work in a section first; then used the cut in brush for the corners and around the windows. I was surprised at how easily the high work was. Note to self: Use much more duct tape on the paint brush, or use two screws to attach the paintbrush to the handle.

Photo of Cilla in the hallway, using the paintbrush to paint the ceiling and wall near the ceiling.Trim

  • We are going to have crown molding installed in the living/dining areas, (HGTV says it adds value to a house and I believe everything the Channel tells me). For that reason, we did not have to paint all the way to the ceiling.

  • However, in the hallway, we just painted the ceiling the same color as the walls—no need to tape off that unreachable area at the ceiling.

  • I even painted the smoke detector, since I could not get on a ladder to take it down. It was old and looks much better painted.

  • Painting around the hallway ceiling light was time consuming.

  • We needed help removing, then putting the light cover back on after we painted around the light.

That's pretty much it. The rooms look great. Photo of Cilla using the roller on the broomstick, painting low, under a window.Three down, three to go. But now I feel very confident we can do it, be done by Spring. Hope “springs” eternal that we can a reap a small mint, in a depressed market ,and another family will continue the history of our current, lovely cozy home. :)

Friday, October 29, 2010

No Purchase Necessary

That small print will get you every time. Mike and I went through the drive through at McDonald's and asked for a Monopoly game thingy. The sweet young thing at the window said, "You didn't buy any of the premium items, so you aren't entitled to a "no purchase necessary" Monopoly thingy.

We, as nicely as we could told, her we just read the sign, at the drive up ordering place, that the first three words under the Play Monopoly ad are "No Purchase Necessary." Poor girl, went back to the manager, who handed her a piece of paper. She, in turn, handed it to us.

In a size 7 font was the following:To receive a game piece without making a purchase, mail a legibly hand written, self-address stamped envelope (SASE) with sufficient postage and a return address (first and last name, street address, city, state and zip or postal code) to [address listed]. Do not send any... comments or questions to this address...

In even smaller print it reads: two game pieces (a total of 4 game stamps) will be mailed in response to each mail-in request that complies with the requirements of the official rules, while supplies last. Mail in requests including both outer envelope and SASE must be hand written. Outer envelope must include a return address in the upper left hand corner that matches the requestor's street address... and that's the simple directions. If you happen to live in Vermont, it is three times more complicated.

Then in all caps on the front side in large lettering is the pharse "No Purchase Necessary". I nearly peed my pants.

I just heard on Keith Olberman that Ohio McDonald's employees received a letter saying they had to vote republican... And they should, afterall, we need people in congress who are willing to keep the term, NO PURCHASE NECESSARY, mean the exact opposite.

I can't blame the folks at the store. They don't make the policy. And, It's not just McDonald's; it's generally accepted corporate policy to lie to those who enrich them.

Please vote in your own best interests on Tuesday, rather than voting to enrich the corporate giants.

Cross posted on my Facebook page.

Monday, October 18, 2010

WTF: Too Disabled to Fly?

I just read an article that said Johnnie Tuitel, a guy who has already flown over 500,000 miles, is now suddenly too disabled to fly alone. Johnnie is 47, has CP and uses a power chair for mobility and lives in Grand Rapids, MI. Apparently, the gate attendant believed he would be a risk to other passengers. If he wanted to fly, he would have to buy another ticket for a “caregiver”. Evidently, he was able enough to get himself to West Palm Beach, through the airport, through security, and to his gate alone, but poor Johnnie can't fly. Why I oughta...

On the other hand, I'm not too crazy about disabled inspirational speakers; but hey, it's a living. Johnnie has trademarked himself as “America's Pioneer Handicapitalist”. [Oh, wait, I just threw up a little bit in my mouth.] I would be tempted to discriminated against disabled inspirational speakers; but, that's not why Johnnie didn't fly.

Johnnie was already seated when a U.S. Airways ground attendant forced him to leave the plane, just before it left the gate from West Palm Beach Airport in Florida. He was on his way to the National Self Advocacy Conference in Kansas City to speak. He missed the gig. Two days later he took another flight, but missed his session at the conference. So, of course, he didn't get paid. Bummer, but you can expect that when you enable capitalist companies to discriminate against you.

Tuitel said: “I was raised to believe I could grow up doing what I wanted to do and it didn't lead me to any entitlement. By them denying me the ability to fly, I couldn't do my job.” More about that later. He also stated, ”Second of all, the people that made the decision are not medical doctors.”

The ground attendant's rationale: “If something were to happen, Tuitel would be unable to help himself or anyone else.” US Airways said the ground attendant had been following airline guidelines for disabled passengers.

Valerie Wunder, on behalf of US Airways said: “The airline requires that the passenger has to be physically able to assist himself or herself in the event of an emergency. If the passenger cannot, the airline requires that someone else travels with the passenger who can provide assistance in the event of an emergency.”

The Problem with Being Inspirational

Tuitel was dissed for sure. His rights were violated. He was humiliated and suffered a financial loss because of discrimination. Tuitel said he was not going to sue the airline.

Earlier in this piece I quoted Tuitel saying, “I was raised to believe I could grow up doing what I wanted to do and it [being disabled] didn't lead me to any entitlement.”

Entitlement, man, is the name of the game!

Johnnie, If you tell people to pull themselves up, work hard, be like Johnnie, you can do anything if you try hard enough; you deny the systemic discrimination that thrives in the world against people with disabilities and other minorities. You can't say, it does not exist. You cannot ignore it and strive to climb over it. It's you against society. You, as an individual, will always lose; just as you did with US Airways.

The only reason he was able to travel through an airport unescorted is because our people broke that barrier down. Every accessible place he goes to, is there because our people made it accessible for him. The only reason he is an entrepreneur, is because our people demanded the right.

The only way to overcome baseless discrimination is to demand what you are entitled to. The only way to do that is to ORGANIZE against the mainstream and demand your rights. You can't charm your way, or speak your way, or ask politely for your birthrights. You must demand them; because, baby, US Airways, or CitiBank, or McDonald's does not speak to people with disabilities best interests.

We can hope US Airways will become more disability friendly, but they won't; unless we barrage them with demands that they do. Frederick Douglass taught us well when he said, “Power concedes nothing without a fight”. To begin the barrage visit: and start complaining!

I also hope Mr. Tuitel stops being so damned inspirational and starts advocating and organizing others to demand their rights as a class of people who deserve them, instead of individuals who can achieve their rights if they try harder, on their own. His dedication to upholding capitalism, despite capitalism denying him his rights, means he's part of the problem, not a solution. We can take a lesson from the gay/lesbian community... gay marriage will happen in the US, not because capitalism said, "sure, let's do the right thing."

Second of all, if most medical doctors had to make the decision about whether or not Johnnie could fly, little Johnnie would be institutionalized.

UPDATE: 8:00 PM. U.S. Airways agrees to discuss policy changes with West Michigan man they booted off flight for being 'too disabled to fly'

Dedicated to Mike Ervin, who got me off my ass to start blogging again! Thanks Mike.

Monday, October 11, 2010

I'm just like you... I don't think so!

Updated: 10-11-10, 3:45 pm

Christine O'Donnell's newest commercial says, “I am not a witch. I'm you... I'm just like you.” She's trying to separate herself from her Bill Maher moment when she said, on camera, that she dabbled in witchcraft. I'm not like her, I'm not a witch (apologies to witches).

This is the same Delaware Tea Party Republican Senatorial candidate, who said she has top secret information from Chinese missionaries, that China has a plan to overthrow the U.S. It would be rare indeed that missionaries would be privy to China's long term world domination “strategery” plans. I don't buy that.

O'Donnell believes that masturbation equals infidelity. Nope, I do not buy that either.

So, if O'Donnell is not me; who is she like? Well, this newest political ad did remind me of someone. Her name is Linda Tripp.

She also said “I'm just like you” during her 15 minutes of infamy. Linda was the phoniest of best friend to Monica Lewinsky, President Clinton's intern girlfriend.

Tripp befriended Lewinsky only to learn more about Lewinsky getting cozy from then President Clinton, and profit from it. She convinced Lewinsky that she was helping, supporting, and looking out for her (Lewinsky's) best interest. Tripp tape recorded all of Lewinsky's phone conversations, urged her to hold on to the “stained” dress (rather than sending it to the cleaners as Lewinsky planned) wore a wire, went shopping for a publisher, and had leading conversations with Lewinsky almost daily, among other offenses against human dignity. She committed the ultimate betrayal of friendship, and her actions were as flagrant as a school yard bully.

Clinton and Lewinsky behaved stupidly. Tripp behaved despicably. Among all the infidelities, tricks, manipulations and lies related to the matter by many people; Linda Tripp's lack of a moral compass was glaring.

The response to Tripp's unfaithful, duplicitous, and nonexistent friendship was swift, brutal and on target. After a few days of being hounded by the media, She made her, “I'm just like you” speech.

The overall amorality that O'Donnell and Tripp share is that they will do anything, and say anything, to get what they want. They are NOT like most people, who are decent, loyal, and truthful. I hope Delawareans will remember that on election day.

Sunday, March 28, 2010

How Much Are We Worth?

people at a workshop with boxes in front of them In 1937, the US Congress passed the Fair Labor Standards Act (FLSA). This legislation allows people with disabilities to be paid less than the minimum wage. Prior to the 1960s disabled workers made $1.60 an hour. After that the law changed to pay disabled, "commensurate" wage, a very differnt way to calculate wages.

At a recent meeting I sat next to a man who had worked at a sheltered workshop and received his "legal" “commensurate wage”. A commensurate wage is the rate you work compared to someone with a disability. Therefore, if he worked 20% as fast as a non-disabled employee, he would receive 20% of a non-disabled workers wages.

He worked for two weeks and looked forward to payday. When he finally received it, he stopped talking. When he got home, he went into his room and cried uncontrollably… for a long time. He kept asking himself, “Is this all I am worth? Is this my value on this earth?” For two weeks, he earned less than two dollars. It thoroughly depressed him; it was stunningly hard to get over. Through support and friends, he began to realized he was not worthless, the system was.

Congressional Report on Subminimum Wages for People with Disabilities
a janitor smiling for the camera, on a short breakI significantly edited, “Concluding Observations,” the summary report from the Congressional Research Service in 2005. The published 38 page report (linked below) by William G. Whittaker is titled, “Treatment of Workers with Disabilities under Section 14(c) of the Fair Labor Standards Act” (FLSA). Congress uses reports like these to educate themselves, set policy, and change laws. It partially reads:

Two issues from the 1980 hearings [arose]… the role of work activities centers (WAC) and calculation of a commensurate wage rate.

Largely, Section 14(c) issues involve wages. How much must employers pay disabled workers in sheltered jobs? Even concern about separation of the workshops from the Work Activity Centers (WACs) has been largely wage-based. The wages in question have always been minimal.

As noted above, the wage rests upon a foundation of individual worker productivity, however measured. Also, disabled workers are often engaged in group work, where personal productivity may well be beyond their own individual ability to control.

Although there is testimony, largely anecdotal, that the workers engaged in sheltered employment through recent years are more severely disabled than those of earlier periods, However
documentation is not available. The degree of worker satisfaction with sheltered employment probably can’t be shown with any reasonable accuracy either.

People posing for a picture. All are sheltered workshop partiicpants.Much of the administrative structure supportive of Section 14(c) is at its base, an issues of wages. Finally, in theory,
options for appeal of wage determinations that are poorly documented, rarely used and does not receive DOL priority attention.

Since the mid-1960s at least, the severely disabled may find themselves striving to meet challenges that are beyond their capabilities, the less severely disabled may be subjected to a collectively calculated sub-minimum wage. Though workshop managers find it useful to deal with the disabled as a homogenous group,
but, it is more reasonable to distinguish between levels of disability.

The Section 14(c) sub-minimum wage option is rooted in the premise that, in order “to prevent curtailment of opportunities for employment,” a wage rate “lower than” FLSA minimum may be justified. There is
little hard evidence whether or not a reduced wage rate prevents curtailment of work opportunities.

Some argue, the option of paying lower wages, encourages employers more readily to hire the disabled and to spend the time to deal with their presumed idiosyncrasies. Whatever their productive level, the sub-minimum wage opens the door to employment: thus — an opportunity wage. Some argue that the sub-minimum wage option inflicts an additional burden: the disabled worker must prove that he is sufficiently productive to merit at least the minimum wage; a worker without a recognized disability is presumed to be worth at least the FLSA minimum.

Some may view the progression from the client, to the worker in the workshop, and to the worker in competitive industry as a continuum. WAC compete for contracts to sustain their nonprofit activities. Thus, while they seek to transition their clients into competitive industry, they may at the same time be reluctant to lose their best workers. In practice, do the managers of workshops and WACs regard themselves as corporate CEOs, as social services workers, or both — and, do these several identities sometimes clash?

Making commensurate wage rate determinations is a technically challenging task. It is not clear, that workshop operators/managers have the expertise effectively to implement such a wage structure. Nor is it clear that the DOL, has the means necessary to effect compliance.

A variety of policy options might be considered by Congress in dealing with this matter. In addition, other options might include:

  • developing additional financial subsides for those in sheltered employment;
  • attempt to establish a clearer distinction between rehabilitation, with different patterns of activity for workers and for clients or patients engaged under Section 14(c);
  • reconsideration of the concept of minimum compensation (and commensurate rates) in the Section 14(c) context; or
  • elimination of the Section 14(c) exemption entirely; or
    decide that no remedial action is warranted

[emphasis added]

Ironically, this document ends, just as I left it; without a period. I have no idea if Mr. Whittaker meant to leave the discussion open. But, it feels prophetic.

It was as if he knew the work must go on. Since 2005, nothing has happened with subminimum wages for workers with disabilities. Perhaps now is the time to set an end date.

What Disability Organizations are Saying about Subminimum Wages

  • TASH set a date of end of 14(c) certificates by 2013
  • National Disability Rights Network, in their 2007 legislative agenda:
    Eliminate the payment of Subminimum wages by amending section 14c of the FLSA;
    plus other recommendations.
  • Framing Disability Policy, National Center on Workforce and Disability in their 2001 report suggests: Iliminate the 14(c) certificate and subminimum wage option. It would require congressional action. Emerging Best Practices in customized employment across diverse work settings provide compelling reasons to reevaluate and rationale for cintinuation of the 14 (c) process
  • The Justice for All Action Network calls for a plan to implement a carefully structured, time limited phase-out plan so the 434,000 currently employed under 14 (c) are not harmed. They also all for a "planned partial obsolenscense of the program and to discontinue issuing new certificates by 2013 among its recommendations.

Put a period at the end of subminimum wages. There must be a threshold below which no worker, no matter how disabled, no calculation of a commensurate wage rate must fall. Period.

See Full Report

Sunday, February 28, 2010

Preventing Worker Exploitation: Protecting Individuals with Disabilities and Other Vulnerable Populations

Excerpted Testimony of Curtis Decker, Executive Director, National Disability Rights Network to U.S. Senate Health, Education, Labor and Pensions Full Committee Hearing, March 9, 2009

The concept that individuals with disabilities should be earning less than other workers is an outmoded concept with its origins in the creation of the Fair Labor Standards Act of the 1930’s, a time when veterans and other people with physical disabilities were seeking factory jobs in the manufacturing industry. But our world has changed significantly since the 1930’s.

Services and supports for individuals with a disability that were only a dream in the 1930’s are now a reality. The creation of assistive technology devices, advances in supported employment services, experience in the use of behavioral supports, and the concept of reasonable accommodation were not considered in the 1930’s. Subsequent amendments to the § 14(c) provision in 1966 and 1986 failed to take into consideration these advancements.

It is inappropriate to single out and stigmatize workers with disabilities, especially in an era of demonstrated progression in thinking about disability through passage of such legislation as the Assistive Technology Act [this page has a read aloud feature for any user], the Americans with Disabilities Act, [summary, easier to read] the Ticket to Work and Work Incentives Improvement Act, and the strengthening of Section 504 of the Rehabilitation Act.

Employers such as Hyatt Hotels and Walgreens continually prove that individuals with a disability can meet the productivity and quality standards required of these businesses, and thus earn the minimum‐wage or prevailing wage for their position.

From a public policy perspective, we should ask the question: if the § 14(c) waiver did not exist, is it something Congress and the disability community would devise today? I believe the answer to that question is “no.” That said, we must be cognizant of the consequences an immediate abolishment of section § 14(c) would have on current employees and employers, as well as individuals with significant disabilities.

We must work together in the short term to improve the § 14(c) provision while Congress, the Department of Labor, disability service providers, disability advocates such as the P&A/CAP network, and others evaluate the efficacy of the § 14(c) provision.

NDRN has been working in conjunction with our affiliates, the Client Assistance Program and Protection and Advocacy systems in Iowa, Texas, Illinois, Indiana, Georgia, Missouri, South Carolina, and Wisconsin regarding the recent discovery of frightful work and living conditions for employees at Henry’s Turkey Farm in Atalissa, IA.

We have also worked closely with Client Assistance Program and Protection and Advocacy systems such as Hawaii, Kansas, Louisiana, Nebraska, North Dakota, Oregon, and Washington in the past on wage and hour violations.

While the exact facts surrounding the Atalissa incident are still unclear, it’s impossible to ignore the systemic flaws that have been uncovered. In Atalissa, the weaknesses of § 14(c) and a lack of oversight enabled Henry’s Turkey Service to exploit the labor of individuals with disabilities in order to increase the profit of the business. This is outrageous.

Henry’s Turkey Service is certainly the catalyst for this hearing, but updating employment regulations for individuals with disabilities is long‐overdue. But, this is not a new issue. A Government Accountability Office report in 2001 highlighted many shortcomings in the § 14(c) waiver provision. The same year, the Department of Labor Inspector General also conducted a review of how the Wage and Hour Division issues and oversees the wage certificates allowed under § 14(c) and offered specific recommendations. Since then, some progress has been made to improve oversight of the certificates.

Among other improvements, the Department of Labor has worked to eliminate redundancies in their § 14(c) records and better verify accuracy. The Wage and Hour Division is now tracking the number of staff hours their investigators devote to the special minimum wage provision and use this information to better manage employers who possess the § 14(c) wage certificate.

Additionally, employers are now provided with written guidance for § 14(c) requirements and other technical assistance.

While the Department of Labor took positive steps to improve § 14(c), Henry’s Turkey Service lingers as an ugly reminder that more is still required. Inadequate oversight and compliance at worksites covered by a § 14(c) certificate still continues. To address this, NDRN offers the following recommendations:

The guidelines for employee evaluations must be more explicit and standardized.
A system of transparency must be enacted. Current data is not easily accessible, and making a FOIA request is a lengthy process and requested information cannot be received in a useful time frame or fashion.

Critical information about the § 14(c) program should be on the Department of Labor’s Web site, and presented with clarity and in such detail that red flags can be detected. For example, for worksites operating with a § 14(c) certificate the percentage of employers operating under the certificate, the productivity level of these individuals, and the dates for which the certificate renewed must be easily accessible. Current regulations require the employer to maintain these records so assuring better accessibility would not represent an additional burden. Information about employers which held a § 14(c) certificate that has been revoked, not renewed, or expired should also be made easily available.

Clearly enforcement of the § 14(c) program needs to improve. However, just increasing enforcement of these provisions by the Department of Labor is not enough. Independent oversight of the program provided by the Client Assistance Program and Protection and Advocacy network is warranted. Specifically, CAPs and P&As should be allowed access to §14(c) sites to ensure individuals with disabilities are being treated fairly, without having to maneuver difficult hurdles.

Another concern for employees with disabilities is the deduction from cash wages to cover room and board provided by an employer. Though allowed under the FLSA, to expose violations for individuals with disabilities who could be subject to exploitation, intent to make deductions should be noted on § 14(c) applications. Deductions for room and board should not be handled by the same entity. This would disincentivise exploitative room and board charges which re‐claim most of or all wages paid to employees, a practice that should have expired alongside sharecropping and indentured servitude.

The role of the Office of Disability Employment Policy (ODEP) is currently vague. The role of ODEP should be clarified through statute and include a mandate to work with the Wage and Hour Division to oversee enforcement of § 14(c) wage certificates. ODEP’s experience working on disability and employment issues could be better utilized to assure the proper implementation and enforcement of federal employment laws under Department of Labor’s jurisdiction which impact individuals with disabilities, such as § 14(c). In fact, ODEP has already funded an analysis of the § 14(c) wage certificates in terms of Community Rehabilitation Providers, a training assistance center on sub‐minimum wage, and expansion of the role of the office to assist with enforcement is a logical means to address the shortfall in oversight by DOL.

Lastly, for employers to take their responsibilities more seriously, stiffer penalties must be enacted. Though Department of Labor statute allows for revocation of a § 14(c) certificate as far back as the date of issuance or date of a violation, there is no clear provision to obtain liquidated damages for violations of Section § 14(c).

The Section § 14(c) waiver program is just one piece of the puzzle of employment for individuals with disabilities. In order to reach a comprehensive solution, we need to ultimately examine a number of issues including access to supports and services, disincentives to work within the Social Security program, and archaic attitudes by some service providers.

Thank you again for holding this hearing. I look forward to working with you and your colleagues in the House and Senate to address this issue.


Thursday, February 25, 2010

Arizona Eliminates Sub Minimum Wage Certificates FAQ

LAST REVISED 12/30/20081

Frequently Asked Questions and Answer

Under A.R.S.23-364(A), which became effective January 1, 2007, the Industrial Commission of Arizona was given the authority to enforce and implement the Arizona minimum wage. The following questions and answers flow from the language of the minimum wage initiative (2006 Proposition 202) and the final administrative rules under Title 20, Chapter 5, Article 12 which became effective on January 12, 2008.

What is Arizona’s minimum wage?
Effective January 1, 2009, Arizona’s minimum wage will be $7.25 per hour. Every employer covered under the Act is required to pay each employee wages not less than this amount. Arizona does not provide for a training or sub-minimum wage for different classes of employees (e.g. young workers, students, etc.). The minimum wage shall be paid for all hours worked, regardless of the frequency of payment and regardless of whether the wage is paid on an hourly, salaried, commissioned, piece rate, or any other basis. For a discussion on the treatment of employees who customarily receive tips, please see below.

When will the minimum wage be increased?
Effective January 1, 2009, Arizona’s minimum wage will be $7.25 per hour. The minimum wage will be increased again on January 1, 2010, and increased annually every successive January 1st by the increase in the cost of living.

Do the requirements of the Arizona Minimum Wage Act apply to all employers?
The Arizona Minimum Wage Act applies to all employers except:

  • The State of Arizona
  • The United States; and
  • Small businesses that are not subject to the Federal Fair Labor Standards Act and which have less than $500,000 in gross annual revenue. This exclusion for small businesses under the Arizona Minimum Wage Act is very limited. Practically speaking, most Arizona small businesses will be subject to the Arizona Minimum Wage Act. This is because most employers, including small businesses, are subject to the Federal Fair Labor Standards Act.

Under the Federal Fair Labor Standards Act coverage extends in one of two ways: Enterprise coverage or individual coverage. Employees who work for an “enterprise” that is engaged in interstate commerce or the production of goods for commerce are covered under the FLSA. Likewise, regardless of the volume of sales of an enterprise (more or less than $500,000), individual employees whose work affects interstate commerce are covered under the FLSA.

Are there any exemptions under the Arizona Minimum Wage Act?
Unlike the Federal Fair Labor Standards Act, the Arizona Minimum Wage Act has very few exemptions. The Arizona Minimum Wage Act applies to any employee employed ban employer except the following:

  • A person who is employed by a parent or a sibling;
  • A person who is employed performing babysitting services in the employer’s home on a casual basis;
  • A person employed by the State of Arizona or the United States government; and
  • A person employed in a small business grossing less than $500,000 in annual revenue, if that small business is not required to pay minimum wage under the Federal Fair Labor Standards Act. This exclusion for small businesses under the Arizona Minimum Wage Act is very limited. Practically speaking, most Arizona small businesses will be subject to the Arizona Minimum Wage Act. For additional discussion of this exemption, please see the preceding question.
Does the Arizona minimum wage apply to part-time or temporary employees?
Yes. The Arizona Minimum Wage Act does not make any distinction between whether an employee is full-time, part-time, or temporary.

Does the Arizona minimum wage apply to an independent contractor?
Except for the exemptions described above, the Arizona Minimum Wage Act applies only to the payment of wages to employees. It does not apply to independent contractors. You are generally considered to be an employee if you are economically dependent on the business for which you are performing work. While no one factor or set of factors is controlling, factors showing this dependence include the degree to which the work performed is integral to the employer’s business, the degree to which the employer controls the manner or method in which the work is performed, whether the employer provides the equipment or material necessary to do your work, the degree of skill required for the work, and the permanence of the working relationship.

Does the Arizona minimum wage apply to volunteers?
No. An individual that works for another person without any express or implied compensation agreement is not an employee under the Arizona Minimum Wage Act. This may include an individual that volunteers his or her services for civic, charitable, or humanitarian reasons that are offered freely and without direct or implied pressure or coercion from an employer, provided that the volunteer is not otherwise employed by the employer to perform the same type of services as those which the individual proposes to volunteer.

Is the Arizona minimum wage the same for both adult and minor employees?
Yes. There is no distinction made between adults and minors when it comes to payment of the minimum wage.

Does an employer have to pay for all hours worked?
Yes. The minimum wage shall be paid for all hours worked regardless of the frequency of payment and regardless of whether the wage is paid on an hourly, salaried, commissioned, piece rate, or any other basis. If in any workweek the combined wages of an employee are less than the applicable minimum wage, the employer shall pay, in addition to sums already earned, no less than the difference between.

What is the Arizona minimum wage for employees who receive tips?
For an employee who customarily and regularly receives tips or gratuities, an employer may pay a wage up to $3.00 per hour less than the minimum wage. This means that an employer must pay not less than $4.25 per hour in direct wages for a tipped employee. If, however, an employee’s tips combined with the employer’s direct wages do not equal the Arizona minimum hourly wage, then the employer must make up the difference.

Who is a “tipped” employee?
A tipped employee is an employee who customarily and regularly receives tips, including the occupation of waiter, waitress, bellhop, busboy, car wash attendant, hairdresser, barber, valet, and service bartender. The employee must actually receive the tip free of any control by the employer
The tip must be the property of the employee. May employees pool, share, or split tips? Yes. Employees who customarily and regularly receive tips may pool, share, or split tips between them. Where employees’ pool, share, or split tips, the amount actually retained by each employee is considered the tip of the employee who retained it.

May employees pool, share or split tips with employees who do not customarily and regularly receive tips in the occupation in which they work, such as management or food preparers?
Yes, but the tips received by the employee who does not customarily and regularly receive tips may not be credited toward that employee’s minimum wage.

What hours may a “tip credit” be applied towards?
A tip credit is available only for the hours spent in the tipped occupation.

Where a tipped employee is routinely assigned to duties associated with a non-tipped occupation, such as maintenance or general preparation work, no tip credit may be taken for the time spent in such duties. Is compulsory charge for service a tip?
Only if it is actually distributed by the employer to the employee in the pay period in which the charge is earned. A compulsory charge for service imposed on a customer ban employer is not a tip if it is considered part of the employer’s gross receipts and is not distributed to the employee in the pay period in which the charge is earned.

What steps must an employer take to assert a “tip credit”?
  • If an employer elects to use the tip credit provision, then the employer must:
  • Provide written notice to each employee prior to exercising the tip credit;
  • Be able to show that the employee received at least the minimum wage when direct wages and the tip credit are combined; and
  • Permit the tipped employee to retain all tips, whether or not the employer elects to take a tip credit for tips received, except to the extent the employee participates in a valid tip pooling arrangement.

How does an employer establish that direct wages combined with tips equals or exceeds the Arizona minimum wage?

In computing the minimum wage, tips are counted in the workweek in which the tip is earned. For purposes of the Arizona Minimum Wage Act, it is the employer’s responsibility to maintain a record of the tips considered for purposes of asserting a tip credit. The amount per hour that the employer takes as a tip credit must be reported to the employee in writing each workweek.

What if tips are not sufficient to make up the difference between the employer’s direct wage obligation and the minimum wage?
The employer must pay the difference. What if the employee earns more than the minimum wage after adding the tips received to the base hourly wage? The employer has fulfilled its obligation under the Arizona Minimum Wage Act.

May an employer take a credit against the minimum wage for tools or uniforms?
No. Unless included by a bona fide collective bargaining agreement applicable to the particular employee, an employer may not credit towards the minimum wage the cost of any tools, equipment, uniforms, or any other garment worn by an employee as condition of employment. This also includes the cleaning or maintenance of uniforms and tools.

May a credit for board or lodging be applied against the minimum wage?
No. Unlike other state and federal statutes, the Arizona Minimum Wage Act defines “wage” to include only “monetary compensation.” Credit for the value of lodging and other items is not allowed when computing an individual’s entitlement to receive minimum wages under the act.

What can an employee do if an employer is not paying an amount at least equal tithe minimum wage?
An employee has different options if the employee believes that an employer is violating the requirements of the Arizona Minimum Wage Act. The employee can file an administrative complaint with the Labor Department of the Industrial Commission of Arizona or file a civil lawsuit.

Who can file an administrative complaint and when must it be filed?
Any person or organization may file an administrative complaint with the Labor Department of the Industrial Commission of Arizona charging that an employer has violated the Arizona Minimum Wage Act as to any employee or other person. An administrative complaint must be filed within one year from the date the wages were due.

Who can file a lawsuit and when must it be filed?A civil action to enforce the Arizona Minimum Wage Act may be filed by a law enforcement officer (which means the Attorney General or a city, town, or county attorney) or by any private party injured by a violation of the Act. The civil action must be filed no later than two years after a violation last occurs, or three years in the case of willful violation. The civil action may include all violations that occurred as part of continuing course of employer conduct regardless of the date of the violations.

Can an employer retaliate against an employee for asking questions about not being paid the minimum wage or for asserting any right under the Arizona Minimum Wage Act?
No. The Arizona Minimum Wage Act prohibits an employer from retaliating against an employee or other person for asserting any right under the Arizona Minimum Wage Act. Additionally, if an employer takes adverse action against an employee within 90 days of the employee asserting a right under the Act, the presumption is that the employer retaliated against the employee. This presumption can only be overcome if the employer shows by clear and convincing evidence that the action taken against the employee was for a permissible reason.

What can an employee do if an employer retaliates against the employee for asserting a right under the Arizona Minimum Wage Act?
An employee may file an administrative complaint with the Labor Department of the Industrial Commission of Arizona or file a civil lawsuit.

What remedies are available to an employee for violations of the Arizona Minimum Wage?
An employer who fails to pay the minimum wage is required to the pay the employee the wages owed with interest and an additional amount equal to twice the underpaid wages. An employer who retaliates against an employee is required to pay penalties sufficient to compensate the employee and deter future violations, but not less than $150 for each day that the violation continued or until legal judgment is final. The Commission and courts also have the authority to order other appropriate legal or equitable relief for violations of the Act. Will the State Labor Department keep an employer’s payroll records confidential? Payroll information provided to the Labor Department of the Industrial Commission of Arizona will be kept confidential except as necessary to prosecute violations under the Act.

Can an employee’s identity be kept confidential after an administrative complaint misfiled?
The Labor Department of the Industrial Commission of Arizona shall keep the name of an employee identified in an administrative complaint confidential for as long as possible. If the Commission determines that an employee’s name must be disclosed in order to conduct a further investigation, it may do so only with the employee’s consent.

What other responsibilities do employers have?
In addition to paying the correct Arizona minimum wage, employers are required to:

  • Keep accurate records of employee wages and hours. Most of the information required to be kept is the type that employers generally maintain in their ordinary business practice;
  • Allow inspection at the worksite of all payroll records by the Labor Department of the Industrial Commission of Arizona (“Department”);
  • Furnish copies of payroll records requested by the Department;
  • Cooperate with the Department’s investigation into complaints of violation with the Arizona Minimum Wage Act;
    Allow the Department to interview employees; and
  • Post the Arizona Minimum Wage Poster in a conspicuous place where employees can read the poster. This poster is available for free from the Department at
What kind of records is required?
The records required under the Arizona Minimum Wage Act consist of information that employers generally maintain in their ordinary business practice, and, in large part, track what is required under the Federal Fair Labor Standards Act. An employer is required to maintain payroll records showing the hours worked and wages paid, including basic time and earning cards or sheets, wage rate tables, records of additions to or deductions from wages paid and any written agreement relied upon to calculate credits toward the minimum wage.

Separate recordkeeping requirements are permitted for employees unfixed schedules and employees who are compensated on a salary basis at a rate that exceeds the minimum wage required under the Arizona Minimum Wage Act and who, under the Federal Fair Labor Standards are an exempt bona fide executive, administrative, or professional employee, including an employee employed in the capacity of academic administrative personnel or teachers in elementary or secondary schools, or in outside sales.

How long am I required to keep the records?
Four years. What happens if an employer violates the recordkeeping, posting, or other requirements under the Arizona Minimum Wage? An employer who violates these requirements is subject to a civil penalty of at least $250for the first violation and at least $1000 for each subsequent or willful violation. Special monitoring and inspections may also be imposed. Additionally, if an employer fails to maintain the required records, it is presumed that the employer did not pay the required minimum wage. An employer has the right to rebut this presumption with evidence that the employer paid the employee the required minimum wage.

How can Arizona’s minimum wage be higher than the federal minimum wage?
Under federal law, a state may require a minimum wage that exceeds the federal wage as the federal law establishes only the minimum wage that must be paid. Which minimum wage law applies? An employer will likely be subject to both the federal and state minimum wage laws. When there are different requirements between the laws, the employer must follow the requirement that is the most beneficial to the employee. Since Arizona’s minimum wage law requires a higher minimum wage rate than does the federal law, an Arizona employer who is subject to both laws must pay the Arizona minimum wage rate.

What is the wage rate that forms the basis for calculation of overtime?
The Arizona minimum wage rate is considered the “regular rate” for purposes of calculating overtime under the Federal Fair Labor Standards Act. May an employee agree to work for less than the minimum wage? No. The minimum wage is an obligation of the employer and cannot be waived by any verbal or written agreement or employment contract.

This is the html version of the file

The NOT SO FAIR Labor Standards Act


It’s hard to believe that an act passed 73 years ago still has such a negative impact on the lives of workers with disabilities. But, it has and Springfield Area Disability Activists and others think it’s time to throw this law on the trash heap of time.

Access Living started a group about the same time we did. Earl Smith’s group at Access Living called “DAWWN (Disabled Americans Want Work Now)”. He has made a few contacts when he attended the US Department of Labor’s Listening Tour during 2/2010, who are also interested.

The Fair Labor Standards Act of 1937, specifically section 14c, still excludes certain workers (those with disabilities, farm workers, older workers and others), from basic worker protections like:
• collective bargaining
• minimum wage
• hours,
• and more.

In this section of the act, (14C), businesses and organizations can apply for a “special certificate” that allows them to discriminate against the above mentioned workers. No legislation, like the ADA, or Older American’s Act has improved working conditions of those groups, except for farm workers.

In the 1970’s farm workers organized pressured, committed civil disobedience and went on hunger strikes to improve their conditions; it worked.

Understanding the Law(s)
The federal government issued several fact sheets about specifically about 14C; and a few related laws to give it more teeth. Unfortunately, when I ran it through the Kincaid-Flesh grade analysis software that comes with Word, it is written for someone who completed 22 years of school… in other words, it would take a person who completed post doctoral work to read the law.

That is ONE reason why disability and Access living are starting a Facebook cause and web page. We will convert the Department of Labor’s mumble-jumble into regular English: so people can understand the law and its effects on people with disabilities lives. We also want people to join our cause to demonstrate that this is an issue important to all of us.
It is SADA & DAAWN’s hope that this law never sees its 75th birthday. We hope activists from around the country will mount a campaign and destroy this despicable law.

It’s Been Done!

It’s more than possible. It’s been done! In 2007, Arizona stopped granting “certificates of discrimination”. All the certificate holders predicted job loss, gloom, despair and agony. But it hasn’t worked out that way at all. Read this article to learn more about what is happening in Arizona.

Community “Placements” & Sheltered Workshops

14C covers both people who work in the community as well as sheltered workshop. Some of these workers make less than a dollar a day. I heard someone say, “They don’t know how much money a dollar is anyway. They are just as happy with that as we are with our checks.” It’s obvious that the concept of dignity is absent from this person’s emotional inventory. People with disabilities deserve more than the dignity afforded them in 1937; we need to reward their sometime behemoth effort just to get to work, and the work they do when they get there. The rewards need to be in 2010 dollars, not 1937 dollars. And we need to let them know we believe that all work is honorable and worthy of descent compensation.

Join our cause. Pass this along to your friends and encourage them to join. Let’s bring this issue to the light of day. We will be adding more material, strategies and suggestions for action in the near future.

DOL Conducting “Disability Listening Tours” Now
There is only one disability Listening Tour left in Boston, MA, March 3, 2010 from 8 am to 11 am and from 1 pm to 3 pm. Go to the website below at the appropriate time and you can connect to the live webcast.