In The Politics of Autism, I discuss the employment of people on the autism spectrum.
- The U.S. Department of Labor on Monday withdrew a Biden-era rule that aimed to phase out a section of the Fair Labor Standards Act that allowed employers to pay certain workers with disabilities wage rates that fall below the federal minimum wage.
- DOL’s rule, announced last December, would have ceased issuance of new certificates that allow employers to pay subminimum wages to workers with disabilities, while giving those with existing certificates a period of three years to gradually end the practice. At the time, the agency said subminimum wages were no longer necessary to preserve employment opportunities for participating workers.
- On Monday, the agency said it received more than 17,000 public comment submissions in response to the rule. It ultimately concluded that “a nonzero population” of workers rely upon the subminimum wage certificate program, and the department lacked authority to end the program because it had been mandated by an act of Congress.
In sharp contrast to the administration's many assertions of executive authority, DOL is now citing legal constraints From the Department of Labor:
The Department takes seriously the concerns expressed by Members of Congress and others that it lacks statutory authority to unilaterally and permanently terminate the issuance of section 14(c) certificates. Section 14 of the FLSA includes both permissive and mandatory provisions. For example, section 14(d) provides that the Secretary of Labor “ may by regulation or order” exempt certain student workers from FLSA wage-and-hour requirements. By contrast, section 14(c) states that the Secretary “ shall by regulation or order provide for the employment, under special certificates, of individuals . . . at wages which are . . . lower than the minimum wage” when the individual's disability impairs their earning or productive capacity. Where, as here, “a statute distinguishes between `may' and `shall,' it is generally clear that `shall' imposes a mandatory duty.” Kingdomware Tech., Inc. v. United States, 579 U.S. 162, 172 (2016) (citation omitted). Thus, section 14(c) imposes a mandatory duty on the Department to provide for the issuance of subminimum wage certificates “to the extent necessary to prevent curtailment of opportunities for employment.”
