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Employment Law

Employing Disabled Workers under the Fair Labor Standards Act

By October 15, 2017September 18th, 2018No Comments

The Fair Labor Standards Act (FLSA) requires most employers to pay most non-exempt workers a minimum wage of $5.15 per hour. It also requires these employers to pay workers time and one-half pay for hours worked in excess of 40 hours in any given week. To encourage employers to hire workers whose productive capacity is reduced because of a physical or mental disability, ยง 14(c) of the FLSA allows employers to pay certain disabled employees a wage that is lower than the minimum wage.

Disabilities that may Impair Productive Capacity

This lower wage, called a “commensurate wage,” may only be paid to an employee whose productive capacity for the actual work being performed is reduced because of his or her disability. The Department of Labor has stated that some disabilities that may impair productive capacity (depending upon the job being performed) include the following:

  • Blindness
  • Mental illness
  • Mental retardation
  • Cerebral palsy
  • Alcoholism or drug addiction

In addition, disabilities relating to age or injury may also impair a worker’s productive capacity for certain jobs.


An employer may only pay a commensurate wage to a disabled worker if it has received a special certificate from the Department of Labor stating that the employer may pay a special minimum wage. To obtain a certificate, an employer must file an application with the Midwest Regional Office of the Wage and Hour Division, the only Department of Labor office that processes the applications.

Prevailing Wage

As part of its application, the employer must document the prevailing wage for the job at issue. The prevailing wage is the amount of money usually paid to a non-disabled employee, at full productive capacity, to perform the job at issue. If the employer does not employ a sufficient number of non-disabled workers, it must survey similar employers to determine a prevailing wage.

Productive Capacity

The employer must also determine the productive capacity of the worker. The commensurate wage is determined from the prevailing wage and the productive capacity of the worker. For example, if a disabled employee is able to complete only 70 percent of the work that a non-disabled employee is able to complete because of his or her disability, the employer will likely be authorized by the Department of Labor to pay the disabled worker a commensurate wage equal to 70 percent of the prevailing wage for the type of work.

Renewal and Different Types of Certificates

All special wage certificates must be renewed on a regular basis, and the productive capacity of the worker must be regularly monitored. The Department of Labor issues different types of certificates to four different types of employers:

  • Work centers – centers that provide rehabilitative services and employment opportunities for persons with disabilities
  • Hospitals or residential care facilities that employ their own patients
  • Business establishment
  • School Work Exploration Programs

Copyright 2011 LexisNexis, a division of Reed Elsevier Inc.