[Brl-monitor] The Braille Monitor, March 2016
Brian Buhrow
buhrow at lothlorien.nfbcal.org
Tue Mar 1 12:01:48 PST 2016
BRAILLE MONITOR
Vol. 59, No. 3 March 2016
Gary Wunder, Editor
Distributed by email, in inkprint, in Braille, and on USB flash
drive, with the audio version being available in both Spanish and English
(see reverse side) by the
NATIONAL FEDERATION OF THE BLIND
Mark Riccobono, President
telephone: (410) 659-9314
email address: nfb at nfb.org
website address: http://www.nfb.org
NFBnet.org: http://www.nfbnet.org
NFB-NEWSLINE® information: (866) 504-7300
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Letters to the President, address changes, subscription requests, and
orders for NFB literature should be sent to the national office. Articles
for the Monitor and letters to the editor may also be sent to the national
office or may be emailed to gwunder at nfb.org.
Monitor subscriptions cost the Federation about forty dollars per year.
Members are invited, and nonmembers are requested, to cover the
subscription cost. Donations should be made payable to National Federation
of the Blind and sent to:
National Federation of the Blind
200 East Wells Street at Jernigan Place
Baltimore, Maryland 21230-4998
THE NATIONAL FEDERATION OF THE BLIND KNOWS THAT BLINDNESS IS NOT THE
CHARACTERISTIC THAT DEFINES YOU OR YOUR FUTURE. EVERY DAY WE RAISE THE
EXPECTATIONS OF BLIND PEOPLE, BECAUSE LOW EXPECTATIONS CREATE OBSTACLES
BETWEEN BLIND PEOPLE AND OUR DREAMS. YOU CAN LIVE THE LIFE YOU WANT;
BLINDNESS IS NOT WHAT HOLDS YOU BACK. THE NATIONAL FEDERATION OF THE BLIND
IS NOT AN ORGANIZATION SPEAKING FOR THE BLIND-IT IS THE BLIND SPEAKING FOR
OURSELVES.
ISSN 0006-8829
© 2016 by the National Federation of the Blind
Each issue is recorded on a thumb drive (also called a memory stick
or USB flash drive). You can read this audio edition using a computer or a
National Library Service digital player. The NLS machine has two slots-the
familiar book-cartridge slot just above the retractable carrying handle and
a second slot located on the right side near the headphone jack. This
smaller slot is used to play thumb drives. Remove the protective rubber pad
covering this slot and insert the thumb drive. It will insert only in one
position. If you encounter resistance, flip the drive over and try again.
(Note: If the cartridge slot is not empty when you insert the thumb drive,
the digital player will ignore the thumb drive.) Once the thumb drive is
inserted, the player buttons will function as usual for reading digital
materials. If you remove the thumb drive to use the player for cartridges,
when you insert it again, reading should resume at the point you stopped.
You can transfer the recording of each issue from the thumb drive to
your computer or preserve it on the thumb drive. However, because thumb
drives can be used hundreds of times, we would appreciate their return in
order to stretch our funding. Please use the return envelope enclosed with
the drive when you return the device.
[PHOTO CAPTION: Palm-lined drive leading to front entrance to Rosen Shingle
Creek Resort]
Orlando Site of 2016 NFB Convention
The 2016 convention of the National Federation of the Blind will take
place in Orlando, Florida, June 30 to July 5, at the Rosen Shingle Creek
Resort, 9939 Universal Boulevard, Orlando, Florida 32819-9357. Make your
room reservation as soon as possible with the Shingle Creek staff only.
Call (866) 996-6338.
The 2016 room rates are singles and doubles, $83; and for triples and
quads $89. In addition to the room rates there will be a tax, which at
present is 13.5 percent. No charge will be made for children under
seventeen in the room with parents as long as no extra bed is requested.
The hotel is accepting reservations now. A $95-per-room deposit is required
to make a reservation. Fifty percent of the deposit will be refunded if
notice is given to the hotel of a reservation cancellation before May 27,
2016. The other 50 percent is not refundable.
Rooms will be available on a first-come, first-served basis.
Reservations may be made before May 27, 2016, assuming that rooms are still
available. After that time the hotel will not hold our room block for the
convention. In other words, you should get your reservation in soon.
All Rosen Shingle Creek guestrooms feature amenities that include
plush Creek Sleeper beds, 40" flat screen TVs, complimentary high-speed
internet capabilities, in-room safes, coffee makers, mini-fridges, and hair
dryers. Guests can also enjoy a swimming pool, fitness center, and on-site
spa. The Rosen Shingle Creek Resort has a number of dining options,
including two award-winning restaurants, and twenty-four-hour-a-day room
service.
The schedule for the 2016 convention is:
Thursday, June 30 Seminar Day
Friday, July 1 Registration Day
Saturday, July 2 Board Meeting and Division Day
Sunday, July 3 Opening Session
Monday, July 4 Business Session
Tuesday, July 5 Banquet Day and Adjournment
2016 NFB National Convention Preregistration Form
Please register online at www.nfb.org/preregistration or complete all
requested information on this form. Print and mail form to the address
below.
Registrant Name:
Address:
City:
State: ________________________________________________ Zip:
_________________
Phone:
Email:
I will pick up my registration packet at convention.
The following person will pick up my registration packet:
Pickup Name:
Please register only one person per registration form.
One check or money order may cover multiple registrations.
Check or money order (sorry, no credit cards) must be enclosed with
registration form(s).
Number of preregistrations x $25 = _________
Banquet tickets x $60 = __________
Total ___
All convention preregistration and banquet sales are final (no refunds).
Mail to: National Federation of the Blind
Attn: Convention Preregistration
200 E. Wells Street at Jernigan Place
Baltimore, MD 21230
Registrations must be postmarked by May 31, 2016.
Vol. 59, No. 3 March
2016
Contents
Illustration: New Accessible ATM Installed at Jernigan Institute
The 2016 Washington Seminar in Review
by Deja Powell
Legislative Agenda of Blind Americans for the 114th Congress, Second
Session
Transitioning to Integrated and Meaningful Employment Act (H.R. 188) (S.
2001)
Accessible Instructional Materials in Higher Education (AIM HE) Act
Equal Access to Air Travel for Service-Disabled Veterans (H.R. 2264)
The Marrakesh Treaty to Facilitate Access to Published Works for Persons
Who Are Blind, Visually Impaired, or Otherwise Print Disabled ("Marrakesh
Treaty")
Moving the Challenge Indoors
by Anil Lewis
Dissecting the Value of Diversity
by Justin Salisbury
The Kenneth Jernigan Convention Scholarship Fund
by Allen Harris
Court Renders Major Decision on the Practice of Paying Subminimum Wages to
Disabled Workers
Recipes
Monitor Miniatures
[PHOTO CAPTION: (Left to right) Mark Riccobono stands with Marc Maurer and
Randy Rice of Cardtronics as Dr. Maurer prepares to cut the ribbon on the
new Cardtronics accessible ATM.]
[PHOTO CAPTION: Mark Riccobono receives his cash as he makes the first
withdrawal from the new ATM.]
New Accessible ATM Installed at Jernigan Institute
Since the introduction of the automated teller machine (ATM), the
blind of the nation have been fighting for access to the cash and other
services these devices provide. At first we were told there was no product
for the banks to buy, and they blamed the manufacturers. We were then told
by the manufacturers that there was no demand and that we must go to the
banks. Next, we were told that the cost of modifying the hundreds of
thousands of machines would be prohibitive and that requiring every ATM to
be accessible was an unreasonable demand. When our lawsuits and
negotiations got the industry and the government to take notice, we then
had to suffer the jokes about those crazy people who wanted to put Braille
on drive-up ATMs. Slowly, however, we began to reach settlements with
banks, and while many ATMs are owned by major banking institutions, many
are privately owned. Such is the case with Cardtronics, a company which
owns and operates more than 53,000 ATMs across the country.
As reported in the August-September 2015 issue of the Braille
Monitor, the National Federation of the Blind reached an amicable
settlement with Cardtronics, and one of the promises made by the company
was the installation of an ATM at our national headquarters in Baltimore.
That machine was installed, and on January 22, 2016, it was officially
unveiled and is now available to everyone who works at or visits the
Jernigan Institute.
[PHOTO CAPTION: Deja Powell]
The 2016 Washington Seminar in Review
by Deja Powell
From the Editor: Normally it falls to the editor to write about our
mid-year convention of the National Federation of the Blind, AKA the
Washington Seminar. This year I had a volunteer, and I really appreciate
her work and her most valuable contribution.
Deja is a winner of a scholarship in 2002 and a tenBroek winner in
2014. Here is what she writes about our work to let lawmakers hear from the
blind:
Utah is known for its snow; the mountains surrounding Salt Lake City
are usually covered in the powdery white stuff by January. At this time
people begin flocking to the state for some of the best skiing,
snowboarding, and snowshoeing in the world. As the snow begins to pile atop
the Utahan Mountains, I know it's time to gear up for the National
Federation of the Blind's annual Washington Seminar. The NFB Washington
Seminar is where a few hundred of the most ambitious and feisty blind
people in the country gather on Capitol Hill to make things happen.
[PHOTO CAPTION: The piles of snow from the plows are almost as tall as the
cars parked in front of the Jernigan Institute in Baltimore, graphic proof
of the travel difficulties faced by this year's attendees at the Washington
Seminar.]
This year, however, would be like no other in the organization's
history: days before the annual meeting, the news started shifting its
attention to Jonas (not Kevin, Joe or Nick, the Jonas Brothers), but winter
storm Jonas, which was headed directly for the Washington DC/Baltimore
area. Meteorologists were predicting one of the largest snowstorms in the
history of our nation's capital was going to hit the week of the NFB
Washington Seminar. Many of us hoped that the news was wrong-that Jonas
wasn't going to be all he was cracked up to be. As the time came to pack
and fly, most of us realized Jonas was not all talk. The storm dumped not
inches, but feet of snow on the Washington DC/Baltimore area, and quickly.
Flights across the country were delayed, then cancelled, then delayed and
cancelled again. Airports were shut down on Friday and Saturday, and all
city transportation suspended. Many of our fellow Federationists were
finding it difficult if not impossible to make their way to DC. The word
impossible, however, doesn't really resonate with Federationists, so many
fought to get there and do the work that had to be done.
[PHOTO CAPTION: Federationists didn't let a few feet of snow daunt them, as
the crowd at the Great Gathering-In shows.]
With major airports shutting down, activities that would normally
have taken place on Saturday, Sunday, and Monday were significantly
altered. One event was a seminar to train state affiliate legislative
coordinators. Here is how Parnell Diggs, our director of government
affairs, described the event and the on-the-fly changes made to make it
work:
Prior to Washington Seminar, a legislative workshop is held for
representatives from each state affiliate to learn more about the
legislative agenda of the National Federation of the Blind. This year,
the workshop was scheduled for January 23, 24, and 25. Due to the
impending storm, President Riccobono suggested inviting workshop
participants to arrive early in order to beat the blizzard. This
strategy proved effective, as more than twenty of our directors made
it to the Jernigan Institute before travel became treacherous. For
those who did arrive early, the workshop was filled with energy and
enthusiasm. President Riccobono welcomed participants at a special
meeting at 4:00 p.m. on Friday. Since the group arrived twenty-four
hours early, members decided to begin the workshop on Saturday morning
rather than waiting until the originally scheduled start time of 6:00
p.m. Joining us on that Saturday morning were not only our fearless
travelers, but legislative directors forced to remain at home until
they could fly into DC. They joined us thanks to the hastily-arranged
conference call put together by our team. For those present the
blizzard conditions did nothing to curtail the service and consumption
of meals, cookies, and coffee during the weekend. Nothing could match
the energy of the logistics team, which masterfully managed the
logistics with precision, grace, and unflagging goodwill.
We lost electric power during the afternoon session on Saturday,
but Federationists continued working as if nothing was out of the
ordinary. The Harbor Room fireplace had been stocked in case heat was
needed, but thankfully the power was restored before dinner.
On Monday morning the chartered bus arrived to transport
Federationists to Washington, DC, but it could not get closer than a
quarter of a mile to the Jernigan Institute. Thus, Federationists
walked through the snow to reach the bus. Four adults and one child
from Hawaii received the admiration of the entire assembly, since
their "winter clothes" were not designed for walking through piles of
shoveled snow that were four feet high in some places.
As we so often remind our friends and even our opponents, we are
a Federation family. Attitudes remained positive throughout the
weekend, and while two dozen Federationists were literally snowed-in
at the Jernigan Institute, the 2016 legislative priorities were
thoroughly discussed, and everyone had a blast.
After the government announced they would be closed on Monday, with
several appointments cancelled for the remainder of the week,
discouragement could have set in, but it didn't. Some members of the
Federation, myself included, took advantage of the rare opportunity to go
sledding down Capitol Hill. After climbing through mini-mountains of snow
on street corners and finally getting to the Capitol, I found an awesome
teenage girl who let me borrow her plastic sled to take a quick trip down
the Hill. With a big grin on my face, I began climbing the very icy and
slick Hill. I barely avoided falling a few times in the process, but I
finally made it to the top. I asked a nice guy up there to line me up so I
would not run over any children on my way down. Once aligned, he gave me a
pretty big push, and I was on my way. Halfway down I spun-out, came to a
stop, and pushed myself the rest of the way down. It was a great,
empowering moment for me-a reminder that I can live the life I want, even
if it requires borrowing a sled or two along the way.
But now it was time to get to work. Prior to the Great Gathering-In
meeting, the student division took care of business. Despite the weather,
nothing could stop the National Association of Blind Students (NABS) from
getting together and having a good time. Nearly fifty students made it to
DC for the NABS annual Washington Seminar meeting, twenty-five of whom were
sponsored by the NFB and would not have been able to attend without the
organization's financial support. The annual student meeting included
information on the new Self-Advocacy in High Education Toolkit Version 1.0,
which serves as a support to blind college students in an effort to prevent
or mitigate accessibility barriers on campus. You can find more information
about the toolkit at <https://nfb.org/self-advocacy-higher-education>. The
meeting also included a speech from President Mark Riccobono, who
encouraged students to step up and take on more leadership roles. Student
Division President Sean Whalen also spoke to those in attendance about
happenings at the national level and the KNFB Reader App. The student
meeting included several breakout sessions covering a variety of topics
including employment, internships, self-advocacy, vocational rehabilitation
services, and more. On Tuesday evening the student division hosted the NABS
Café, an annual social event for students and supporters, which included an
auction, raffle, and live entertainment. Despite the weather, the
attendance matched that of previous Washington Seminar student meetings.
For the first time in history, the annual Great Gathering-In meeting
was held on Tuesday morning, with a smaller but powerful group of
Federationists ready to learn, act, and change the laws of the land.
President Mark Riccobono welcomed everyone and thanked all for making such
an enormous effort to attend. He specifically welcomed two-year-old Eliana
from Hawaii, who is blind and attending her first-ever Washington Seminar.
He suggested, "If anybody asks you why you bothered to trudge through the
snow to get here, you tell them about Eliana; it's her future we're working
for." In his welcome speech, President Riccobono talked about a variety of
legal cases affecting the lives of blind parents, children, and adults,
addressing employment barriers blind people face, such as not receiving
equal wages, inaccessible technology for the blind, lack of internet
regulations, lack of accessibility in transportation (including Uber), and
the need for accessibility in voting rights. He ended by saying, "We do all
this work and more because it is personal to us, and we are here because it
matters in our own lives and in the lives of others." He continued, "We are
here because for seventy-five years we have set the standard, and we
continue to raise expectations for blind people across the country. We are
here because we seek to live the lives we want!"
Jernigan Institute Executive Director Anil Lewis also spoke to the
crowd about the various programs going on at the Jernigan Institute,
including STEM2U, NFB EQ <http://www.blindscience.org/NFBEQ>, NFB Bell
Academy <https://nfb.org/bell-academy>, and other academic-focused
programs. Anil declared, "It's not our inability to see that defines our
future; it's the poor education systems that don't challenge us, that don't
set high expectations for us to meet...Blind people have the intellect,
knowledge, ability, talent, interest, desire, and passion to be involved in
STEM subjects."
Fred Schroeder followed by announcing that the United States will be
hosting the World Blind Union this summer in Orlando, Florida, and
encouraged Federationists to attend. President Riccobono also announced
that this year's NFB National Convention will be held in Orlando, Florida,
Thursday, June 30 through Tuesday, July 5, at the Rosen Shingle Creek
Resort and that pre-registration will open on March 1.
Immediate past president Dr. Marc Maurer addressed the Great
Gathering-In by discussing important legal issues facing the blind and how
the National Federation of the Blind is working on these, including
subminimum wage issues, Amazon accessibility, and parental rights.
Executive Director of Advocacy and Policy, John Paré, welcomed all who
fought the storm to make it to Washington and announced the use of a new
App for NFB Washington Seminar, "NFB in DC," designed to set up and track
appointments. Next, Parnell Diggs, director of government affairs,
addressed the crowd regarding logistics of the week and welcomed all to DC.
He encouraged attendees to check with individual senators and
representatives to be sure appointments were still on as scheduled.
[PHOTO/CAPTION: Parnell Diggs]
[PHOTO/CAPTION: Rose Sloan]
[PHOTO/CAPTION: Gabe Cazares]
Parnell then introduced his legislative team: Rose Sloan and Gabe
Cazares. Rose started things off by talking about the first of four issues:
equal work for equal pay, or the Transitioning to Integrated and Meaningful
Employment (TIME) Act (H.R. 188; S. 2001). Rose declared, "The blind and
all people with disabilities deserve an honest wage. We are going to
educate and advocate; the NFB will get the TIME Act passed." She continued,
"For far too long the blind have been paid less than the minimum wage, and
it is time to end this. Section 14(c) of the Fair Labor Standards Act must
be repealed."
Rose also discussed the second issue, Equal Access to Air Travel for
Service-Disabled Veterans (H.R. 2264). The Space Available Program allows
members of the active military, some family members, Red Cross employees,
and retired armed services members to travel on military aircraft if space
is available. However, members of the military who were classified as 100
percent service disabled before September 23, 1996, do not qualify for this
program because they are not considered "retired." Rose declared that both
the TIME Act and the Space Available proposal are in need of co-sponsors.
Gabe Cazares, the newest member of the government affairs team,
discussed the two remaining issues. First is the Accessible Instructional
Materials in Higher Education (AIM HE) Act, which will generate guidelines
for higher education institutions when implementing new technology to
ensure it is accessible to blind and print-disabled students. Gabe notes
that far too often schools deploy inaccessible technology, then modify
another version for blind students, and tragically this usually occurs
weeks or even months into class. This has the effect of creating a
"separate-but-equal" landscape with nearly impenetrable barriers. Gabe went
on to say, "Blind students will not be relegated to second-class
citizenship in employment or the classroom. All technology needs to be
accessible to all students."
Gabe also talked about the Marrakesh Treaty to Facilitate Access to
Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise
Print Disabled. The Marrakesh Treaty is an international copyright treaty
that will give blind Americans access to millions of published works and
improve the distribution of books across the globe. Unlike the United
States, where copyright code includes the Chafee Amendment and other
exceptions, two-thirds of the world's nations do not have domestic
copyright laws that permit making copies for the blind, limiting the number
of works available in an accessible format. Gabe concluded by encouraging
all of us to get moving to push through all four of our important issues.
John Paré went through all of the information in the legislative
packets this year, including fact sheets and letters of support. President
Riccobono announced the congressional reception would be cancelled due to
the weather. He also encouraged everyone to attend the NABS Café that
evening to support the student division of the National Federation of the
Blind. He then introduced the director of public relations, Chris
Danielson, who discussed an Op-Ed written by President Riccobono that was
released that day on the Congress Blog <http://thehill.com/blogs/congress-
blog/civil-rights/266943-inequality-and-indifference>. The article includes
information on signing the NFB's We the People Petition
<https://petitions.whitehouse.gov/petition/direct-us-department-justice-
promptly-release-ada-internet-regulations>, which needs 100,000 signatures
by mid-February. Chris encouraged everyone to share the Op-Ed piece and the
Washington Seminar experience on social media under the hashtag #NFBWS16.
He ended his remarks by saying: "Washington knows we're here, now let us
let the world know."
President Riccobono concluded the meeting with a few last minute
announcements, encouraging participants to share their experiences on
social media, noting the demonstration of a new Braille display being
debuted at the seminar, and telling us that Anil Lewis had eaten all the
peanut butter pie that was available.
On Tuesday, Wednesday, and Thursday the nation's blind took over
Capitol Hill. In fact, we were pretty much the only ones brave enough to go
to the Congress that week. Many affiliates met with Congress and House
staffers, and a few got to meet face-to-face with their representatives and
senators. Despite the weather, lots of progress was made on some of the big
issues, and Federationist fought hard to share the concerns our elected
officials can address that truly effect the blind.
As a dancer I have grown to love the quotation by Vivian Greene,
"Life isn't about waiting for the storm to pass...It's about learning to
dance in the rain." It was a lot more than rain in Washington, DC, for this
Washington Seminar, but record-breaking snow accumulation covering our
nation's capital couldn't stop members of the National Federation of the
Blind from dancing. Many of my family and friends asked me why I was going
to Washington, DC, when the weather was so bad and Congress wouldn't even
be in session; some went so far as to say I was being ridiculous for going.
My response: "What we're going to Washington for will outlast the storm.
The issues we are fighting for will be there long after the snow melts. The
blind of our country have been told far too many times that we can't, that
we won't, that we shouldn't, but we are not ready to back down...no matter
the barriers. Snowzilla can't stop us!" And, you know, it didn't.
----------
Legislative Agenda of Blind Americans
Priorities for the 114th Congress, Second Session
. The Transitioning to Integrated and Meaningful Employment Act (H.R.
188, S. 2001)
Section 14(c) of the Fair Labor Standards Act allows employers to pay
workers with disabilities subminimum wage because of the false assumption
that they are less productive than nondisabled workers. This antiquated
provision breeds low expectations and discourages disabled Americans from
reaching their full vocational potential. H.R. 188 and S.2001 will
responsibly phase out the use of Section 14(c) Special Wage Certificates,
ending the era of segregated, subminimum wage work.
. The Accessible Instructional Materials in Higher Education (AIM HE)
Act
Electronic instructional materials have replaced traditional methods
of learning in postsecondary education, but the overwhelming majority of
ebooks, courseware, web content, and other technologies are inaccessible to
students with print disabilities. The law requires equal access in the
classroom but fails to provide direction to schools for the way it applies
to technology. AIM HE creates voluntary accessibility guidelines for
educational technology to improve blind students' access to course
material, stimulate the market, and reduce litigation for schools.
. Equal Access to Air Travel for Service-Disabled Veterans (H.R. 2264)
The Space Available Program allows active-duty military, Red Cross
employees, and retired members of the armed services to travel on military
aircraft if space is available. H.R. 2264 reverses the exclusion of 100
percent service-disabled veterans who were discharged before September 23,
1996, and entitles them to the program's privileges even though they were
never classified as "retired."
. The Marrakesh Treaty to Facilitate Access to Published Works for
Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled
Despite the ability to convert print books into accessible formats
like Braille, large print, audio, and digital copies, millions of blind and
otherwise print-disabled Americans are excluded from accessing 95 percent
of published works. The Marrakesh Treaty calls for contracting parties to
provide in their national copyright laws for a limitation or exception that
allows for the reproduction, distribution, and cross-border exchange of
accessible works.
----------
Transitioning to Integrated and Meaningful Employment Act (H.R. 188) (S.
2001)
Current labor laws unjustly prohibit workers with disabilities from
reaching
their full vocational and socioeconomic potential.
Antiquated public policy encourages workers with disabilities to rely
on government assistance such as Supplemental Security Income (SSI) and
Medicaid. Section 14(c) of the Fair Labor Standards Act, passed in 1938,
authorizes the Secretary of Labor to issue Special Wage Certificates to
certain entities, permitting them to pay workers with disabilities
subminimum wages. Ninety-five percent of 14(c)-certificate-holding entities
are nonprofit "sheltered workshops" (segregated work environments)1 that
pay over 300,000 workers with disabilities as little as pennies per hour,
leading many of those workers to seek government assistance.
Current training and employment strategies assist those with even the
most significant disabilities to obtain integrated and meaningful
employment. Workers in sheltered workshops often perform mundane tasks that
do not use their existing skills, interests, and talents. However,
innovative strategies such as customized and supported employment, when
paired with appropriate rehabilitative services, training, tools, and
expectations allow employees with disabilities to be as productive as their
nondisabled coworkers.2
A growing number of former 14(c)-certificate-holding entities have
transitioned their business models into effective disability training
programs. No entities in Vermont or New Hampshire use 14(c) certificates.
Seminars such as the Vermont Conversion Institute highlight entities that
have successfully phased out reliance on Section 14(c) certificates. This
transition not only benefits employees with disabilities but the overall
productivity of the organizations that employ them.3 Research shows that
sheltered workshops cost more to society than alternatives. Moreover,
consumers who were not exposed to the low expectations of sheltered,
subminimum-wage environments earn more money than peers who were in those
environments.4
Policy and public and private sentiment are moving into a new era of
proven competitive, integrated employment for people with disabilities. In
August 2012 the National Council on Disability unanimously recommended that
the Department of Labor immediately stop issuing new Special Wage
Certificates and that the "Section 14(c) program be phased out."5 In
September 2015 a committee tasked by Congress to increase competitive
integrated employment opportunities for workers with disabilities
recommended the phase-out of Section 14(c).6 In addition, over eighty
disability organizations support the repeal of Section 14(c) of the Fair
Labor Standards Act.7
The Transitioning to Integrated and Meaningful Employment Act:
Discontinues the issuance of new Special Wage Certificates. The
Secretary of Labor will no longer issue Special Wage Certificates to new
applicants.
Phases out the use of Special Wage Certificates over three years.
Three years after the enactment of this Act, no 14(c)-certificate-holding
entity will pay workers with disabilities subminimum wages, allowing them
to transition to the proven model of competitive, integrated employment for
all of their employees with disabilities.
Repeals Section 14(c) of the Fair Labor Standards Act. Three years
after the law is enacted, the practice of paying workers with disabilities
subminimum wages will be officially abolished. This will result in the
development of integrated and meaningful employment opportunities that
encourage people with disabilities to reach their full vocational and
socioeconomic potential.
To cosponsor H.R. 188 in the House of Representatives, contact:
Scot Malvaney, policy director, Office of Congressman Gregg Harper (R-
MS)
Phone: (202) 225-5031, Email: <Scot.Malvaney at mail.house.gov>
To cosponsor S.2001 in the Senate, contact:
Dan Auger, Legislative Assistant, Office of Senator Kelly Ayotte (R-
NH)
Phone: (202) 224-3324, Email: <Daniel_Auger at Ayotte.senate.gov>
For more information, contact:
Rose Sloan, Government Affairs Specialist, National Federation of the
Blind
Phone: (410) 659-9314, Extension 2441, Email: <rsloan at nfb.org>
For more information visit: <www.nfb.org/TIME>
__________________________________________________
1United States Department of Labor. "Wage and Hour Division (WHD) Community
Rehabilitation Programs (CRPs) List." Last modified October 1, 2015.
http://www.dol.gov/whd/specialemployment/CRPlist.htm.
2United States Department of Labor. "Customized Employment Works
Everywhere." Last modified October 2009.
https://www.hdi.uky.edu/setp/materials/vignette_v3_blue_508_FINAL.pdf.
3Szlyk, Janet. "Letter of Support Issued by the Chicago Lighthouse." Last
modified September 30, 2011.
<http://nfb.org/Images/nfb/documents/word/Chicago_Lighthouse_Support_letter.
doc>.
4Cimera, Robert E.; Wehman, Paul; West, Michael; & Burgess, Sloane. "Do
Sheltered Workshops Enhance Employment Outcomes for Adults with Autism
Spectrum Disorder?" Autism. 16 (2012): 87.
5National Council on Disability. "National Council on Disability Report of
Subminimum Wages and Supported Employment." Last modified August 23, 2012.
<https://www.ncd.gov/publications/2012/August232012>.
6Advisory Committee on Increasing Competitive Integrated Employment for
Individuals with Disabilities. "Interim Report." Last modified September
15, 2015. <http://www.dol.gov/odep/pdf/20150808.pdf>.
7National Federation of the Blind. "The following groups support the repeal
of Section 14(c) of the Fair Labor Standards Act." Last modified February
12, 2015. <https://nfb.org/groups-supporting-repeal-section-14c-fair-labor-
standards-act>.
----------
Accessible Instructional Materials in Higher Education (AIM HE) Act
Until colleges and universities drive the demand for accessible
instructional materials, blind college students will be denied access to
critical course content.
Technology has fundamentally changed the education system. The scope
of instructional materials used at institutions of higher education has
expanded. Curricular content comes in digital books, PDFs, webpages, etc.,
and most of this content is delivered through digital databases, learning
management systems, and applications. The print world is inherently
inaccessible to students with disabilities, but technology offers the
opportunity to expand the circle of participation. Studies have found that,
of the six million plus students with print disabilities in the system, the
number who go on to pursue postsecondary education is growing.
Blind students are facing insurmountable barriers to education.
Instead of fulfilling the promise of equal access, technology has created
more problems than the print world ever did. Data show that students with
disabilities face a variety of challenges, including matriculation failure,
solely because colleges and universities are sticking with the ad-hoc
accommodations model instead of embracing accessibility. Schools deploy
inaccessible technology and then modify another version for blind students,
usually weeks or even months into class, creating a "separate-but-equal"
landscape with nearly impenetrable barriers. With only a 20 percent
employment rate, blind students should not be denied access by the
innovations that could have ensured full participation.
Institutions of higher education need help to identify accessible
material and comply with nondiscrimination laws. Section 504 of the
Rehabilitation Act and Titles II and III of the Americans with Disabilities
Act require schools to provide equal access, and in 2010, the US
Departments of Justice and Education clarified that the use of inaccessible
technology is prohibited under these laws. In the five years since, over a
dozen institutions have faced legal action for using inaccessible
technology, and complaints are on the rise. Most litigation ends with a
commitment from the school to embrace accessibility, but that commitment
does little in a vast, uncoordinated higher education market that mostly
forgets about blind students.
Accessibility solutions are available, but guidelines are sorely
needed to guide the market. Equal access requirements have no criteria for
accessibility that schools can use when selecting technology. Innovations
in text-to-speech, refreshable Braille, and other accessibility features
are widely available, but developers and manufacturers will incorporate
only solutions that are demanded by the market. Accessibility guidelines
are needed so that schools can streamline demand, stimulate the market, and
better identify accessible material. If schools seeking to avoid litigation
embrace this path to compliance, blind students will truly attain equal
access.
Accessible Instructional Materials in Higher Education Act:
Develops accessibility guidelines for instructional materials used in
postsecondary education.
A purpose-based commission is tasked with developing accessibility
criteria for instructional materials and the delivery systems/technologies
used to access those materials. Additionally, the commission is tasked with
developing an annotated list of existing national and international
standards so that schools and developers can identify what makes a product
usable by the blind.
Provides incentive for institutions of higher education to follow the
guidelines.
Institutions of higher education that use only technology that
conforms with the guidelines will be deemed in compliance with the
provisions of Section 504 of the Rehabilitation Act and Titles II and III
of the Americans with Disabilities Act that pertain to schools' use of
technology.
Offers flexibility for schools while reiterating that pre-existing
obligations still apply.
Colleges and universities are permitted to use material that does not
conform to the guidelines as long as equal access laws are still honored.
Conformity with the AIM HE guidelines is only one path to compliance;
schools can pursue a different path, but will forfeit the safe harbor legal
protection.
Remove Barriers to Equality in the Classroom.
Sponsor the Accessible Instructional Materials in Higher Education Act.
For more information contact:
Gabe Cazares, government affairs specialist, National Federation of the
Blind
Phone: (410) 659-9314, Extension 2206, Email: <gcazares at nfb.org>
For more information visit: <www.nfb.org/aim_he>
----------
Equal Access to Air Travel for Service-Disabled Veterans (H.R. 2264)
The Space Available Program unjustly denies 100 percent service-disabled
veterans the opportunity to participate.
One hundred percent service-disabled veterans are not entitled to air
travel privileges to which other members of the military have access. The
Space Available Program allows members of the active military, some family
members, Red Cross employees, and retired armed services members to travel
on military aircraft if space is available. However, members of the
military who were classified as 100 percent service disabled before
September 23, 1996, do not qualify for this program because they are not
considered "retired."
This exclusion denies 100 percent service-disabled veterans
discharged before September 23, 1996, a privilege to which they would be
entitled had they not been disabled during service. Those service members
who were disabled during active duty and were medically discharged prior to
September 23, 1996, did not have the chance to stay on active duty, to be
classified as "medically retired," or to fulfill the twenty years
requirement to become qualified for this program. These men and women have
earned the right to space-available travel just as others have because they
sacrificed so much for our country.
Military aircraft are already equipped to accommodate passengers with
disabilities. Retired military personnel, their family members, and Red
Cross workers with disabilities are already permitted to use the Space
Available Program, and according to the AMC Space-Available Handbook &
FAQ's, "Every effort shall be made to transport passengers with
disabilities who are otherwise eligible to travel." Therefore, permitting
100 percent service-disabled veterans the opportunity to ride on military
aircraft if space is available will not cause any new burden to the
program.
The National Defense Authorization Act provides the platform to
achieve the goal of this bill. In a letter dated November 3, 2015, Bob
Dole, a decorated World War II veteran and longtime Senate majority leader,
urged Senator John McCain, Chairman of the US Senate Committee on Armed
Services, to incorporate this bill into the National Defense Authorization
Act (NDAA). Indeed, the House of Representatives' version of NDAA for
fiscal years 2014 and 2015 included the language of H.R. 2264.
Equal Access to Air Travel for Service-Disabled Veterans would:
Provide travel privileges to all 100 percent service-disabled
veterans. This bill amends Title 10 of the United States Code to permit
veterans who have a service-connected, permanent disability rated as total
to travel on military aircraft in the same manner and to the same extent as
retired members of the Armed Forces.
HONOR OUR SERVICE-DISABLED VETERANS: PERMIT THEM TO USE THE SPACE AVAILABLE
PROGRAM
Cosponsor H.R. 2264.
To cosponsor H.R. 2264 in the House of Representatives, contact:
Joe Millado, senior policy advisor, Office of Congressman Gus Bilirakis (R-
FL)
Phone: (202) 225-5755, Email: <Joe.Millado at mail.house.gov>
For more information, contact:
Rose Sloan, government affairs specialist, National Federation of the Blind
Phone: (410) 659-9314, Extension 2441, Email: <rsloan at nfb.org>
"Brave soldiers made the same sacrifices as their fellow veterans, and
their disabilities are a direct result of combat or its aftermath. I
believe they should be able to participate in the Space Available program."
- Bob Dole Letter to Senator McCain, November 3, 2015
----------
The Marrakesh Treaty to Facilitate Access to Published Works for Persons
Who Are Blind, Visually Impaired, or Otherwise Print Disabled ("Marrakesh
Treaty")
An international copyright treaty will give blind Americans access to
millions of published works and improve the distribution of books across
the globe.
Millions of Americans are being denied access to published works.
Despite the ability to convert print books into accessible formats
like Braille, audio, and digital copies, over 95 percent of published works
are unavailable to people with print disabilities. Literacy and equal
participation in society are critical elements of a fulfilling and
independent life, but until uniformity is built into the international
copyright system, blind Americans will be excluded from accessing works. A
blind student seeking to learn Spanish will likely struggle to find an
accessible format; a work printed in English may have already been
converted into an accessible format overseas, but because copies are not
exchanged across borders, domestic entities might need to make a duplicate
copy or just might deny access altogether by failing to reproduce the work.
An uncoordinated legal approach prevents the cross-border exchange of
accessible books.
Unlike the United States, where copyright code includes the Chafee
Amendment and other exceptions, two-thirds of the world's nations do not
have domestic copyright laws that permit making copies for the blind,
limiting the number of works available in an accessible format. Moreover,
many countries consider distribution of accessible copies an infringement
as well, and even amongst nations that permit distribution, limitations
vary. Instead of exchanging books across borders, works are needlessly
duplicated, and circulation is significantly limited.
The Marrakesh Treaty was adopted to achieve this goal.
On June 27, 2013, a diplomatic conference convened by the World
Intellectual Property Organization, (WIPO) in Morocco adopted the Marrakesh
Treaty with outspoken support from the US delegation. The treaty, signed by
the US on October 2, 2013, currently has eighty-two signatories and has
been ratified by fourteen countries. Because the treaty calls for
contracting parties to adopt copyright exemptions similar to those found in
US law, the administration is developing a ratification package that should
call for only a sleek, narrow set of modifications.
The Marrakesh Treaty has broad stakeholder support. Blind people
should have full and equal access to all works that enrich lives, further
education, and share critical information; the treaty balances this
priority with the interests of rights holders. WIPO's adoption of the
Marrakesh Treaty was supported by American-based companies, the
international publishing community, legal experts, and blindness advocates.
The treaty will have tangible benefits for all involved.
The Marrakesh Treaty calls for contracting parties to provide in
their national copyright laws for a limitation or exception that allows for
the:
. Reproduction of works, by an authorized entity, for the purposes of
converting them into accessible format copies exclusively for
beneficiary persons.
. Distribution of accessible format copies exclusively to beneficiary
persons.
. Import of accessible format copies, for the purposes of making them
available domestically.
. Export of accessible format copies, for the purposes of making them
available to a beneficiary person in another country.
Remove Barriers to Access of Published Works.
Support ratification of the Marrakesh Treaty.
For more information, contact:
Gabe Cazares, government affairs specialist, National Federation of the
Blind
Phone: (410) 659-9314, Extension 2206, Email: <gcazares at nfb.org>
----------
>From the Editor: President Obama reacted to our request and has forwarded
the Marrakesh Treaty language to the United States Senate for ratification.
[PHOTO CAPTION: Anil Lewis]
Moving the Challenge Indoors
by Anil Lewis
From the Editor: One of the most liberating experiences of my life
occurred after I received a long white cane, received enough instruction to
use it, and was given a pass to travel off the campus of the Missouri
School for the Blind by myself. For the first time in my life, outside
travel did not mean shuffling my shoe along the edge of the sidewalk,
holding my arm across my body to protect myself against poles and signs,
and fearing with every step that I would find a drop-off or, God forbid, an
open manhole. It took some time for me to realize that the cane was not
only an outdoor tool but was both effective and necessary when traveling in
many indoor environments.
As wonderful as a cane and a dog can be, much information still
exists that we have a hard time getting as blind people. What store are we
passing in a mall? Where is the closest restroom? Where is a bench I can
use while my wife spends hours going through the dress shop? If I am in a
crowded banquet hall and leave my chair to run an errand, how do I find
that chair without disrupting the festivities by asking a bunch of
questions? There is much to be explored in all of this indoor technology
that looms on the horizon, and it is no surprise that the Jernigan
Institute is playing a leading role in helping to publicize what is
available, ensuring that developers have a clear vision of what blind
people need in this area, and coordinating efforts to see that the
resulting technology is something that blind people really want and need.
Here is what the executive director of our Jernigan Institute says about
ongoing efforts to encourage the development of indoor travel technology:
Marc Maurer, the immediate past president of the National Federation
of the Blind had the audacity to believe in the dream of a blind person
independently driving an automobile and established the NFB Blind Driver
Challenge. This groundbreaking initiative of our NFB Jernigan Institute
challenged universities, technology developers, and other interested
innovators to build interface technologies that empower blind people to
drive a car safely and independently. The power of partnering the nonvisual
expertise of the National Federation of the Blind with the engineering
talent of Dr. Dennis Hong and his graduate students at Virginia Tech, while
taking advantage of the innovative navigation capability possessed by the
engineers at TORC Robotics, culminated in a demonstration of the capacity
of the blind with our current president, Mark Riccobono, becoming the first
blind driver on the Daytona International Speedway in January of 2011. We
continue to engage mainstream automobile manufacturers with the goal of
ensuring nonvisual access to the vehicle control interfaces that would
allow blind people to operate them as they introduce more autonomous
functionality. Because we first dared to dream of a car that the blind can
drive, we are moving ever closer to transforming our dream of driving into
reality. Soon, the blind will be able to drive ourselves, our family
members, and our friends to work, to school, or to the local mall. Now we
are moving the challenge of developing innovative nonvisual wayfinding
technology indoors. Our National Federation of the Blind Indoor Navigation
Challenge initiative actively explores partnerships that foster the
development of technology that can be used by the blind to access
information about the indoor environments in which we travel.
Members of the National Federation of the Blind know that blind
people effectively use tools and strategies like long white canes, guide
dogs, mental mapping, echolocation, and problem-solving skills to acquire
and to make use of environmental information to travel safely and
independently outdoors and indoors. In fact, the students at our National
Federation of the Blind adult rehabilitation training centers learn to
effectively use nonvisual travel skills to move independently and
confidently throughout most environments without independent access to the
information available to the sighted. Yet, technology affords us an
opportunity to enhance our travel experience. Sighted individuals have
access to an overwhelming amount of information that assists them as they
find their way from place to place outdoors and indoors through the use of
maps, kiosks, and signage, which although helpful, are inaccessible to
blind people. The information related to storefronts, travel gates, retail
sales, and personal safety, readily available to the sighted, remain
inaccessible to the blind.
Technology has already proven helpful in providing additional
environmental information that helps the sighted and the blind alike to
move from location to location, as demonstrated by the ever-growing
accuracy of talking GPS navigation systems. Many blind people benefit from
an assortment of apps and devices that use these to provide environmental
information, which assists them to navigate more independently and
efficiently throughout their neighborhoods, across the country, and around
the world. The audible instructions, "Move to the far right lane. In 800
feet, turn right onto St. Paul Street," "Pothole ahead," and "Left lane
closed," almost makes it seem possible for a blind person to drive today.
Unfortunately, GPS technology has proven to be ineffective for use within
enclosed environments because these block the satellite signals and thereby
makes this technology ineffective indoors.
Our National Federation of the Blind Indoor Navigation Challenge is a
research partnership initiative to foster the development of devices or
systems that the blind can use to obtain more useful information about the
indoor environments in which we travel, such as schools, airports,
hospitals, and shopping malls. These devices are not a substitute for the
acquisition of good travel skills. They are meant to be a complement, an
additional tool that enhances the travel experience of an independent
traveler by providing access to environmental information currently
unavailable nonvisually.
Through our initiative, we foster a true partnership between blind
people and nonvisual wayfinding technology experts to spur the development
of accessible navigation tools that are designed using universal access
principles. We have engaged the expertise of Mr. Mike May to administer our
National Federation of the Blind Indoor Navigation Challenge. Mr. May, as
president and founder of Sendero Group, has had extensive experience with
outdoor navigation since 1994, and he possesses a broad depth of knowledge
about a variety of accessible orientation and navigation systems.
We have engaged over thirty NFB Indoor Navigation Challenge partners,
representing universities and private businesses, and many have already
committed to partnering with us toward the development of indoor navigation
devices or systems that will eventually have commercial applications. They
are attempting to address the problem in a variety of creative ways that
take advantage of beacon technologies, remote vision, image recognition,
crowd sourcing, and existing infrastructure.
We seek to leverage the expertise and life experience of blind people
throughout the research, development, and testing of accessible indoor
navigation systems. By working to provide information, resources, and
opportunities to all of our NFB Indoor Navigation Challenge participants,
we hope to create an incubator for indoor navigation research and best
practices, where natural partnerships and mutually beneficial
collaborations will be identified and developed. To that end, on November
30 through December 1, 2015, we hosted a summit with the following five
Indoor Navigation Challenge partners:
. Boni, Loud Steps
. Indoo.rs, LowViz Guide
. Radius Networks
. UMass Amherst, PERCEPT
. Wina
These companies are using innovative approaches to provide nonvisual
access to environmental information in creative ways that take advantage of
Near Field Communications (NFC), beacon, and wide-band technologies. During
our summit, we set up beacon technology throughout the fourth floor of our
Jernigan Institute, and two of our participants provided real-time
demonstrations of their nonvisual wayfinding technology. Generally the
devices were accurate to within ten feet of their reported location. One of
the companies reports to be using ultra-wideband technology, which is
accurate to one foot, but more expensive. The accuracy of the other
solutions is anticipated to continue to improve as the technologies are
refined.
During the summit, each participant gave a presentation and answered
questions about their specific technologies from members of our Access
Technology staff. Although there were similarities in implementation, each
technology had a unique approach to providing nonvisual access. Some used
audio output; others used audio and vibra-tactile output. The amount of
navigation information made available to the user also varied between
technologies. Some of the solutions offered walking instructions, others
provided information about points of interests throughout the indoor
environment, while some provided both. Our evaluation team assessed each
solution from the perspective of potential users while taking into
consideration a variety of travel skills and technological proficiencies.
We leave it to our partners to decide whether or not they share the advice
we provided, or to use it to establish a competitive edge. The most
valuable recommendation we offered was for the developer to provide the
ability for the user to customize the amount of information provided by the
system so that it could best meet the needs of the individual user.
Some of our partners have already begun installing their wayfinding
solutions in various public spaces, retail establishments, conferences, and
both commercial and public transportation venues. With the aggressive
mainstream implementation of varying navigation apps and devices throughout
a host of venues, our NFB Indoor Navigation Challenge has already begun
facilitating collaboration among our partners, promoting the development of
a more seamless solution. Boni offered to let Indoo.rs use their NFB
beacons. PERCEPT offered to let others take advantage of their software to
generate audio walking instructions. Sendero may use an SDK [software
development kit] from Loud Steps in the Seeing Eye GPS app. Radius
considered working with Boni to provide a nonvisual wayfinding solution for
the 2016 Consumer Electronic Show (CES). Unfortunately this did not come
together in time for this year's conference, but perhaps, as a result of
this collaboration, the 2017 CES will have accessible indoor navigation
technology available. We will continue to encourage communication with and
among our existing NFB Indoor Navigation Challenge partners and work to
recruit additional challenge participants.
Mr. May, with his years of experience in nonvisual wayfinding
technology, has been a tremendous asset in our NFB Indoor Navigation
Challenge initiative. His technological expertise has proven to be
essential to our progress. We will be bringing greater awareness to our
project by giving a presentation on the NFB Indoor Navigation Challenge at
the 2016 CSUN conference in March.
There are many technical challenges that remain for our partners to
address, and direct communication between our experts and their project
engineers will result in the mutually beneficial outcome of effective,
nonvisually accessible wayfinding technologies.
As an organization comprised of individuals who would directly benefit
from the tools developed through this effort, the National Federation of
the Blind remains committed to ensuring the aggressive marketing,
mainstream implementation, ongoing innovation, and potential
commercialization of these technologies. The annual convention of the
National Federation of the Blind, with over 2,500 blind people in
attendance, is clearly the ideal venue for testing and demonstrating the
leading indoor navigation systems. Stay tuned for announcements of our
national convention plans.
The National Federation of the Blind Indoor Navigation Challenge is a
research initiative of the National Federation of the Blind Jernigan
Institute, the premier research and training institute developed and
directed by blind people, that applies the collective knowledge and life
experience of the blind toward the development of innovative solutions to
the barriers faced by blind people. Interested individuals and potential
research partners should contact us at <indoornav at nfb.org>.
[Pullout Quote: National Federation of the Blind Indoor Navigation
Challenge <www.nfb.org/indoornav>]
----------
[PHOTO CAPTION: Justin Salisbury]
Dissecting the Value of Diversity
by Justin Salisbury
From the Editor: Originally from Connecticut, Justin Salisbury has
traveled around the eastern half of our country in his pursuit of
education. He has participated in many initiatives for equality and social
inclusion, both inside and outside the National Federation of the Blind. He
writes here about some of the concepts he has encountered in this work and
explores the spaces where minority classifications intersect. Here is what
he has to say:
I was talking with a longtime friend from our Puerto Rico affiliate
about our career futures. He wants to be a teacher of the blind, and I told
him that we would love to have him in Connecticut. When he asked why, I
told him it was because he was from the island. For those who don't know,
the state of Connecticut has a very large Puerto Rican population,
especially in the eastern half of the state. I stopped myself immediately
and thought about what I had said. The demands of our schedules pulled us
away from each other before we could carry the conversation further, and I
wished instantly that they had not. I had made a mistake by telling him
that we would want him because he was Puerto Rican. His value comes from
much more than his ethnic background, and I had wrongly communicated to him
that it was his primary credential to contribute.
It has become fashionable to try to make organizations as diverse as
possible. I think it is wonderful for organizations to have this goal, but
I think careful reflection on the reasoning for the diversity push is
important. In the organized blind movement we are making strides to become
more diverse and have more diverse populations represented in our
membership and leadership. I have discussed diversity themes with many
great minds, some of whom are Federationists, and I am writing to share
what I have learned.
I often hear people in many organizations, including ones that have
nothing to do with blindness, emphasize the desire to have leadership and
membership from multicultural backgrounds. This includes race, ethnicity,
religion, gender, sexual orientation, disability, and the like. There is
value to this goal, but there are potential pitfalls in the description and
implementation thereof.
I am a blind person, and I am also Canadian First Nations, which we
often call "Native American" here in the United States. I don't have every
kind of minority status, but I do have two that are relatively uncommon. A
lot of people ask me to show up at things to represent one community or the
other. Whether or not people realize it, this communicates to me that my
value is generated by simply being blind or simply being First Nations. It
comes from something that I am rather than something that I do. It comes
from something I did not earn instead of something that I earned. The
process of maintaining this value is simple: stay alive. The capacity to
decrease this value is nullified; no level of laziness can take it away. Is
increasing my value possible? It must be, but so much focus on that
unearned value tends to lead people to take harbor within it. Society does
it to us, and we often do it to each other. Just as we don't mean it or
maybe don't realize it, we can give the benefit of the doubt to the rest of
society that their intentions were not malicious. Dr. tenBroek taught us
that we must ensure that our road to Hell is not paved with other people's
good intentions. Here, if we are not careful, we can pave a similar road
for some of our members, thus affecting all of our members.
When I was in my doctoral program at the University of Wisconsin-
Madison, I planned to focus publicly on only two things: academics and the
National Federation of the Blind. That lasted until I was spotted by other
Native American students, and I was recruited into Wunk Sheek, the broad
Native American organization on campus. At our meetings we would often hear
that some event or club reached out to us, asking us to come represent the
Native American community. Our value at those events and activities was
inherent to our race and not to ways that we could present or actively
contribute. It was important for us to extend our coordinated support only
when it helped us grow. As the National Federation of the Blind's Executive
Director Mark Riccobono, who is now our President, taught me at a
leadership event in Wisconsin, it is important to focus specifically on
doing the things that build our railroad. I was proud to be able to
contribute that wisdom to Wunk Sheek because of what a Federation leader
had taught me. If Wunk Sheek were to go out for everything, our purpose
would become that of condiments for everyone else's burgers, and we would
not be taught to be contributors beyond providing our diversity itself.
What some organizations used to call "underserved populations,"
increasingly more organizations today call "underrepresented populations."
I like this shift in our society and am not surprised that we see this
valuable transition in rhetoric led by universities. I attended the
University of Wisconsin on a fellowship for underrepresented ethnic
minority students in the College of Agriculture and Life Sciences; this
program has been used as a model for many others. It was always
communicated to us that we were expected to step up and be leaders in our
fields, and many of us did. I personally am much more likely to join an
organization that tells me that I have something to contribute than one
that tells me that I need to be served by their greatness. "Underserved"
identifies the population as one primarily to be served rather than
represented. In Jim Omvig's book, Freedom for the Blind, we learn that one
of the most important characteristics of achieving first-class status is
giving back. It follows that, if a population is viewed primarily as a
recipient of the services of another, that population does not have first-
class status. If we are systematically viewing subgroups of our movement as
second-class within our movement, we are marginalizing that population much
the way that the blind are marginalized in the general public. If this is
the case, we are not capitalizing on the full potential of those
populations to contribute to our movement. It may be easy to misunderstand
me here; I am not saying that democratically-elected leaders from
privileged social strata cannot adequately represent members from
traditionally marginalized social strata. The National Federation of the
Blind represents all blind people; this is true. It is also true that
diverse backgrounds and sets of experiences in the leadership of our
movement equip those leaders who intend to use them to connect and work
with individuals with similarly diverse backgrounds and sets of
experiences. I expect that many of us would agree that the true cross
section of society that blindness affects is not yet perfectly represented
in our membership.
We all know what it is to be the token blind person. We know when
someone is inviting us to participate in something solely to draw the
appearance that the program or activity in question is inclusive to blind
people or people with disabilities. We know that our value in those
situations is largely perceived to derive from the fact that we are
embellishing the status of those who are really participating with the
credit of charitably including someone with our disability. When the
reporters want to take our picture with the elected official or keynote
speaker after waiting for all the other members of the public to go through
the line, we know why they do it. They want to report to the world that our
disability is there as a part of their program. They are seldom truly
pursuing us for our credentials or our capacity. If we are not careful, and
if we do not stay close to the National Federation of the Blind for
recalibration, in the words of Jennifer Dunnam, we can come to believe that
our value in that situation is not defined by who we are but by the fact
that we are blind.
The public does it to us, and it is done with good intentions. We
cannot allow our road to Hell to be paved with these good intentions, so we
must not pave that road for anyone. If we pave the road to reduced
productivity for blind people who also represent traditionally
underprivileged social strata, we are teaching them to sit back and to
allow their value to be generated by their characteristics. If we
systematically reduce the productivity of those individuals, we, the
nation's blind, cannot access the true value that they have. It follows
then that we are reducing our own productivity by reducing it for others
who contribute to ours. Just as we ask others to do for us, we should do
for others. We must find ways to break down barriers to the full
participation in our movement to all blind people and insist that nobody be
a token. The potential is too great to squander.
We are working to ensure that social strata do not inhibit a blind
person from participating to his or her fullest potential in our movement,
but we also don't want the strata to become branded as the reason for that
person to participate, distracting us all from his or her true potential.
When great leaders arise in our movement, it is their contributions that
make them great, not the diversity cards in their hands, even if they have
a killer hand.
Sometimes someone from an underrepresented population can have the
ability to connect with populations who are not being effectively reached.
In my case I'm sure there are some blind Native Americans whom I may be
able to reach in ways that non-native members may not be able to reach
because of my background. There are other components of my identity that
could also function the same way. Maybe it is in connecting with people who
come from towns so small that the only danger outdoors at night comes from
bears and coyotes. Maybe it is with people who grew up in poorer
communities right next to wealthier ones. Maybe it is in working with
students who are the first person in their family to ever pursue higher
education. These factors are also sources of diversity and can create
opportunities to reach more people. In our movement there is a value to
being able to connect with people who might not otherwise feel connected.
Maybe more visibly contributing Latino members can help us reach more
Latinos in the general public, a goal that we have since they are the
largest minority group in our country.
Sometimes, there are benefits that come from being an active part of
the National Federation of the Blind that really have nothing to do with
blindness. We are a family and a community of people who work hard and care
about each other. The more we interact with people from all types of
backgrounds, the more we can demystify those groups and become comfortable
with them. For some of us the Federation may be the only place where we
interact with someone of a particular religion or country of origin. I know
that this is sometimes the case for me. Even better, maybe the Federation
is the only or primary place that we can have positive interactions with
someone from a particular background. Maybe it is the most positive type of
interaction. I run into much hostility from African-Americans on a daily
basis, but the very positive relationships that I have with people like
Anil Lewis, Roland Allen, and Ever Lee Hairston help me keep my sanity and
faith in that group. This helps me be able to work with a population that
spans far beyond the blind community, and it strengthens me as a person. We
need blind people to be as strong, capable, and confident as possible in
order for us to achieve first-class status. We are blind people, and we are
simply people too. Our Federation family has a unique ability to serve
these types of roles in our lives because of how emotionally powerful our
work is. Learning to believe in ourselves and working together to raise the
expectations of blind people, transforming dreams into reality, is not
something that we do with no emotional benefits. The Federation strengthens
us even more than we strengthen it, but it can do so only if we keep
feeding the fire.
When people ask us to show up and be blind for them, they are
teaching us that our value comes from being blind and showing up. Let us be
careful not to tell any potential contributor to our movement that his or
her potential value is so limited. Together, we can find out what we can
truly achieve. We can push the limits and capitalize on the talents and
enthusiasm of everyone who wants to contribute.
----------
Consider a Charitable Gift
Making a charitable gift can be one of the most satisfying
experiences in life. Each year millions of people contribute their time,
talent, and treasure to charitable organizations. When you plan for a gift
to the National Federation of the Blind, you are not just making a
donation; you are leaving a legacy that insures a future for blind people
throughout the country. Special giving programs are available through the
National Federation of the Blind (NFB).
Points to Consider When Making a Gift to the National Federation of the
Blind
. Will my gift serve to advance the mission of the NFB?
. Am I giving the most appropriate asset?
. Have I selected the best way to make my gift?
. Have I considered the tax consequences of my gift?
. Have I sought counsel from a competent advisor?
. Have I talked to the NFB planned giving officer about my gift?
Benefits of Making a Gift to the NFB
. Helping the NFB fulfill its mission
. Receiving income tax savings through a charitable deduction
. Making capital gain tax savings on contribution of some appreciated
gifts
. Providing retained payments for the life of a donor or other
beneficiaries
. Eliminating federal estate tax in certain situations
. Reducing estate settlement cost
Your Gift Will Help Us
. Make the study of science and math a real possibility for blind
children
. Provide hope and training for seniors losing vision
. Promote state and chapter programs and provide information that will
educate blind people
. Advance technology helpful to the blind
. Create a state-of-the-art library on blindness
. Train and inspire professionals working with the blind
. Provide critical information to parents of blind children
. Mentor blind people trying to find jobs
Your gift makes you a part of the NFB dream!
----------
The Kenneth Jernigan Convention Scholarship Fund
by Allen Harris
From the Editor: Allen Harris is the chairman of the Kenneth Jernigan
Fund Committee and was one of the people who came up with the idea of
honoring our former president and longtime leader by establishing a program
to promote attendance at the national convention, where so much inspiration
and learning occur. Here is Allen's announcement about the 2016 Kenneth
Jernigan Convention Scholarship Fund Program:
Have you always wanted to attend an NFB annual convention but have
not done so because of the lack of funds? The Kenneth Jernigan Convention
Scholarship Fund invites you to make an application for a scholarship
grant. Perhaps this July you too can be in the Rosen Shingle Creek Hotel in
Orlando, Florida, enjoying the many pleasures and learning opportunities at
the largest and most important yearly convention of blind people in the
world.
The three biggest ticket items you need to cover when attending an
NFB national convention are the roundtrip transportation, the hotel room
for a week, and the food (which tends to be higher priced than at home). We
attempt to award additional funds to families, but, whether a family or an
individual is granted a scholarship, this fund can only help; it won't pay
all the costs. Last year most of the sixty grants were in the range of $400
to $500 per individual.
We recommend that you find an NFB member as your personal convention
mentor, someone who has been to many national conventions and is able to
share money-saving tips with you and tips on navigating the extensive
agenda in the big hotel. Your mentor will help you get the most out of the
amazing experience that is convention week.
Who is eligible?
Active NFB members, blind or sighted, who have not yet attended an
NFB national convention because of lack of funding are eligible to apply.
How do I apply for funding assistance?
1. You write a letter giving your contact information, and your local
NFB information, your specific amount requested, and then explain why this
is a good investment for the NFB. The points to cover are listed below.
2. You contact your state president in person or by phone to request
his or her help in obtaining funding. Be sure to tell the president when to
expect your request letter by email, and mention the deadline.
3. You (or a friend) send your letter by email to your state
president. He or she must add a president's recommendation and then email
both letters directly to the Kenneth Jernigan Convention Scholarship Fund
Committee. Your president must forward the two letters no later than April
15, 2016.
Your letter to Chairperson Allen Harris must cover these points:
.Your full name, and all your telephone numbers and label them-cell phone,
home, office, other person (if any).
.Your mailing address and, if you have one, your email address.
.Your state affiliate and state president; your chapter and chapter
president, if you attend a chapter.
.Your personal convention mentor, and provide that person's phone number.
.Your specific request:
Explain how much money you need from this fund to make this trip
possible for you. We suggest you consult with other members to make a rough
budget for yourself.
The body of your letter should answer these questions:
How do you currently participate in the Federation? Why do you want
to attend a national convention? What would you receive; what can you share
or give? You can include in your letter to the committee any special
circumstances you hope they will take into consideration.
When will I be notified that I am a winner?
If you are chosen to receive this scholarship, you will receive a
letter with convention details that should answer most of your questions.
The committee makes every effort to notify scholarship winners by May 15,
but you must do several things before that to be prepared to attend if you
are chosen:
1. Make your own hotel reservation. If something prevents you from
attending, you can cancel the reservation. (Yes, you may arrange for
roommates of your own to reduce the cost.)
2. Register online for the entire convention, including the banquet,
by May 31.
3. Find someone in your chapter or affiliate who has been to many
conventions and can answer your questions as a friend and advisor.
4. If you do not hear from the committee by May 15, then you did not
win a grant this year.
How will I receive my convention scholarship?
At convention you will be given a debit card or credit card loaded
with the amount of your award. The times and locations to pick up your card
will be listed in the letter we send you. The committee is not able to
provide funds before the convention, so work with your chapter and state
affiliate to assist you by obtaining an agreement to advance funds if you
win a scholarship and to pay your treasury back after you receive your
debit or credit card.
What if I have more questions? For additional information email the
chairman, Allen Harris, at <kjscholarships at nfb.org> or call his Baltimore,
Maryland, office at (410) 659-9314, extension 2415.
Above all, please use this opportunity to attend your first
convention on the national level and join several thousand active
Federationists in the most important meeting of the blind in the world. We
hope to see you in Orlando.
----------
Court Renders Major Decision on the Practice of Paying Subminimum Wages to
Disabled Workers
From the Editor: Anyone who reads the Braille Monitor knows that we
have been engaged in an effort to get the Congress of the United States to
amend the Fair Labor Standards Act by phasing out section 14(c), a law
passed in 1938 which allows the payment of less than the minimum wage to
disabled workers. The executive branch took action in 2015 to see that
blind workers employed by federal contractors receive at least $10.10 an
hour. Now the third branch of government, the judiciary, has weighed in,
and we reprint here a significant decision arguing against the use of
section 14(c) and the procedures used by facilities that seek to take
advantage of its provisions at the expense of disabled workers. Throughout
this opinion the reader will find long-standing arguments made by the
National Federation of the Blind to be ones the judge arrives at through
observation, considerable thought, and the application of common sense. For
readability we have left out the footnotes, but anyone wishing a full copy
of the document can receive it in .pdf by writing to <gwunder at nfb.org>.
Here is what the National Federation of the Blind's director of legal
policy, Marc Maurer, has to say about the decision:
"We have received the attached decision from the administrative law
judge in the Seneca Re-Ad case. Three petitioners in a sheltered workshop
were being paid less than the minimum wage. The legal standard to permit
this is that the individuals be disabled for the work to be performed. The
judge determined that these petitioners are not so disabled, which leads to
the conclusion that the Fair Labor Standards Act was violated. I would
call this a substantial march of progress. The judge declared that there
has to be a connection between the disability and the diminution of
performance of a job task before subminimum wages are permitted. It is not
enough to allege disability. The workshop has the burden of demonstrating
that subminimum wages are justified, and this decision makes demonstrating
the connection much more difficult."
Here is the decision:
Issue Date: 02 February 2016
Case No.: 2016-FLS-3
In the Matter of:
Petition for Review of Special
Minimum Wage Rate Pursuant to
Section 14(c)(5)(A) of the Fair Labor
Standards Act by:
RALPH MAGERS, Petitioner,
and PAMELA STEWARD, Petitioner,
and MARK FELTON, Petitioner,
v.
SENECA RE-AD INDUSTRIES, INC., Respondent.
DECISION AND ORDER
I. INTRODUCTION
This case arises under Section 214(c) of the Fair Labor Standards Act
("Act"), 29 U.S.C.
§214(c).1 Ralph ("Joe") Magers, Pamela Steward, and Mark Felton
("Petitioners") are employees of Seneca Re-Ad Industries ("Respondent"),
which is located in Fostoria, Ohio. Each of the Petitioners has been
diagnosed with one or more developmental disabilities,2 and each receives
services from the Seneca County (Ohio) Board of Developmental Disabilities
("DD").3 Employment at Respondent's Fostoria manufacturing facility is one
of the services provided by DD.4
DD provides services to approximately 230 persons in Seneca County.5
Approximately 37 people are receiving DD services in the form of community
(competitive) employment. Approximately 120 persons work in DD's "sheltered
workshops" (now generally referred to as "community rehabilitation
programs"). Respondent is a not-for-profit corporation which has a contract
with DD to provide employment opportunities to DD's clients.6
At all relevant times, Respondent has held a Certificate issued by
the United States Department of Labor (a "Section 214(c) Certificate")
which has authorized Respondent to pay less than the minimum wage7 to
Petitioners for nearly all of the work they perform. In this action,
Petitioners seek a review of the special minimum wages paid to them.
Over the past 75 years, implementation and enforcement of the Fair
Labor Standards Act has defined the most fundamental relationships between
American employers and their employees. The 40-hour workweek, overtime pay,
and the near elimination of child labor have been woven into the fabric of
the modern workplace. Applicability of the Act to specific workplace
conditions continues to cause disagreement, and litigation under the Act
(and its state counterparts) remains a staple of federal and state court
dockets.
Our collective notions of disability, and in particular our notions of
how a disability might affect the ability of an individual to participate
in employment, have also changed dramatically over the past few decades.
Statutes such as the Americans with Disabilities Act have fundamentally
altered the ways in which employees with disabilities are able to find and
sustain competitive employment.
The instant case does not involve competitive employment. Nor, based
upon my review of the evidence at the hearing, does it really involve what
were once called "sheltered workshops." The Petitioners live independently
in the community. They have held competitive employment in the past. Each
of them brings valuable employment skills to the Respondent's modern
manufacturing facility every day. When working for Respondent, the
Petitioners participate in the production of products having commercial
value. Like American workers in competitive employment, Petitioners view
themselves partially through a lens of their labor. How and where they
work, and what they do in the workplace, and how they are compensated,
gives the Petitioners a significant portion of their identity.
The workplace relationship between Petitioners and Respondent is
complicated and is fundamentally different from competitive employment. A
few of the differences are: (1) Petitioners have voluntarily chosen to
participate in a Seneca County program for those with developmental
disabilities instead of pursuing competitive employment in the community.
By accepting disability services from Respondent, Petitioners have agreed
to accept the special minimum wages-far below minimum wage-which are
authorized by Section 214 of the Act and by the Section 214(c) Certificate
held by Respondent; (2) The manner in which the Petitioners' compensation
is calculated is neither easily comprehended nor transparent. In the
hearing of this case, the calculation of the so-called "commensurate wages"
paid to Petitioners was explained by an expert; (3) The Petitioner's
"personnel files" contain medical, social and psychological information
which would not be available to employers in the realm of competitive
employment; (4) Some of the jobs performed at Respondent's manufacturing
facility are designed to maximize employment opportunities for those with
developmental disabilities, rather than to maximize the output of goods in
a workday. This choice by Respondent maximizes the number of persons to
whom disability services might be provided by Seneca County. This choice by
Respondent does not maximize the amount of money any employee will see in
her paycheck. As Rodney Biggert, Division Manager of DD, explained:
Q. Okay. So let me circle back to that question of why not pay
minimum wage. And you said that, I believe, that you couldn't pay
minimum wage because you wanted to increase opportunities for workers
with disabilities, is that correct?
A. Correct.
Q. Can you explain what the connection is between-why subminimum
wage is necessary for you to create opportunity?
A. In the case of the Fostoria division, if our costs were to
increase to that extent-
JUDGE BELL: To what extent?
THE WITNESS: To the extent where we are paying every individual at
least minimum wage, it would be hard to retain that contract [with
Roppe Industries] without some large change in the way they do
business, which I mean-which by that, I mean automating a large
portion of what we do and eliminating at least half of the workforce.8
In Respondent's Fostoria workplace, Petitioner's wages are suppressed
by: (1) Section 214(c) of the Act, which authorizes special minimum wages
to be paid to those with disabilities; and (2) Petitioners' disabilities,
and how those disabilities might actually affect their ability to perform
in the workplace, but also how those disabilities are perceived by the
Petitioners and by others; and (3) Respondent's choice that the number of
employment opportunities which may be offered to the disabled in this
specific workplace will be given priority over the amount of compensation
paid to any individual disabled employee; and (4) the manner in which
higher- paying jobs are assigned to Petitioners; and (5) the manner in
which the Petitioner's commensurate wages are calculated; and (6) the
health of the labor market in Seneca County.
For the reasons explained below, I find that the special minimum
wages actually paid to the Petitioners are not justifiable given the nature
and extent of the Petitioner's respective disabilities. Respondent has
failed to demonstrate that the Petitioners are "impaired by a physical or
mental disability . . . for the work to be performed"9 by each Petitioner
at the Respondent's Fostoria, Ohio, manufacturing facility. By failing to
pay minimum wage to each of the Petitioners, Respondent has violated §206
of the Act.
For the reasons explained below, I also find the special minimum
wages actually paid to the Petitioners have not been appropriately
calculated. Respondent has failed to meet its burden to justify "the
propriety of [the] wage" paid to the Petitioners.10 By failing to pay
minimum wage to each of the Petitioners, Respondent has violated §206 of
the Act.
Each of these findings independently requires that I find in favor of
each Petitioner, and that I fashion an appropriate remedy for each of them.
For the reasons which follow, I will order that each of the Petitioners be
paid at least the Ohio minimum wage going forward, and I will award back
pay and liquidated damages to each of them. I will also award attorney fees
and reasonable litigation costs to Petitioners if such a remedy is
available.
II. PROCEDURAL HISTORY
On November 17, 2015, Petitioners submitted a "Petition for Review of
Wages" to the Wage and Hour Division of the United States Department of
Labor. On November 25, 2015, the Wage and Hour Division referred the matter
to the Office of Administrative Law Judges. The case was assigned to me on
December 16, 2015. On that date, I conducted a telephone conference with
counsel, and thereafter issued an Order: (1) setting the date and location
of the formal hearing; (2) establishing a discovery schedule, and (3)
requiring Respondent to immediately produce to Petitioners the information
described in 29 C.F.R. §525.16.11
Pursuant to the Act12 and Department of Labor regulations,13 I was required
to schedule and conduct a hearing on an expedited basis. The formal hearing
was held in a public courtroom at the Seneca County Court of Common Pleas
in Tiffin, Ohio, on January 4, 5, 6, 7 and 8, 2016. On the morning of
January 6, I was able (along with counsel) to visit the manufacturing
facility in Fostoria, Ohio, where each of the Petitioners is now employed.
While there, I was able to observe production activities at Respondent's
facility.
Petitioners' Exhibits 1 through 18 and Respondent's Exhibits 1
through 24 and A1 through D1 were admitted without objection during the
hearing. On January 18, 2016, the parties filed post-hearing briefs. I have
reviewed a transcript of the hearing in the preparation of this Decision
and Order.14
III. THE PETITIONERS
Petitioners work at Respondent's manufacturing facility for a variety
of reasons. Some of these reasons are easily understood-such as the
difficulty finding transportation in a largely rural county. Some of the
reasons involve the types of available jobs for unskilled laborers. Some
reasons are connected to the Petitioners' disabilities. Petitioners'
expert, Dr. Fredric Schroeder, testified about the relationship of these
factors:
JUDGE BELL: What, if anything, do you understand to be the nature of
the labor market here in Tiffin or Seneca County, generally?
THE WITNESS: Oh, I know that this is a college town; I know that that
stimulates certain kinds of industry, business. But also I'm assuming,
and I'm not intricately familiar with this community, but I'm
assuming, being fairly rural, there's probably some agriculture. I
have not done a labor market survey of this area.
JUDGE BELL: Do you know whether there are other simple assembly
positions that are available to those in the community who may wish to
have those jobs and who may be able to get transportation to those
jobs or is there a shortage of those kinds of jobs? If you know.
THE WITNESS: I haven't done a labor market survey. I know there's some
light industry in the area. So I don't know. But really, the
individuals, based on the conversations that I've had with them, I
probably would not be exploring the same type of work within an
integrated setting. I'd be looking, I think, for different types of
employment options for them.
JUDGE BELL: Such as?
THE WITNESS: Well, again, it's an exploratory process. You start with
the individual's interests, but you have to factor in all sorts of-
like transportation. But also there's a huge social dynamic around
disability and that social dynamic means, for some individuals, they
can go into an integrated setting and function very well without any
particular supports where other individuals, just to put it bluntly,
they've been told for a lifetime that they're inferior, that they
can't work at a competitive level, that they're slow, they're
inaccurate, and they may need a good bit of support.
So it's not-what you're trying to do in rehabilitation is
maximize employment, see how far you can take the individual in
finding a job that's a good fit for them, makes-that they enjoy, that
they're good at, that they're comfortable with. So all of the skills
parts just kind of help inform you and then you look at the community,
you look at the available jobs, you meet with employers, you look at
the employment setting, the receptivity of the coworkers, there's just
so many tangible and intangibles. But I would describe the process as
an exploration, and with each individual it will vary a great deal in
how much support they may need.15
Ralph ("Joe") Magers applied for DD services on November 3, 2009.
According to the materials in his file,16 Mr. Magers is legally blind. Mr.
Magers" OEDI17 score sheet finds substantial functional limitations in the
following areas: mobility, self-care, self-direction, capacity for
independent living and economic self-sufficiency.18 He attended the Ohio
School for the Blind, where it was determined that his "measured mental
ability . . . is within the superior range."19 The Ohio School for the
Blind noted that "Joe is a very hard, conscientious worker."20 Mr. Magers
has worked for Respondent for approximately six years.21 Although legally
blind, he has sufficient sight to be able to get around in familiar
areas.22 He has some difficulty differentiating between items of similar
color, and he needs larger print in order to be able to read.23 He lives by
himself.24 He does not drive. He pays his bills, shops for his groceries,
and does his laundry.25 He has held some competitive employment in the
past, most notably a three-year period of employment with Ticketmaster. He
also worked in a call center. In these jobs, Mr. Magers earned more than
minimum wage.26
As a result of his visual impairment, Mr. Magers has transportation
issues. He describes his travel methods:
Q. Okay. And do you drive?
A. No.
Q. How do you get around Tiffin?
A. I mostly walk. I will take SCAT transportation from time to
time, and maybe if I had a little more money, I'd take a cab now and
then.
Q. And what is SCAT transportation?
A. That's more or less our version of-Seneca County's version of
Paratransit. It probably operates under a bit different rules since
there are no fixed routes.
Q. Okay. And does it operate during certain hours?
A. Yes. Weekdays, it operates from quite early in the morning until-
I think they want to be over and done by 6:00. So most generally they
want-they try to make it more like it's 5:00. But if you're doing a
special thing, you can-you'll have services a little past 5:00.27
Pamela Steward applied for DD services on May 11, 2009.28 She has
worked at Respondent's Fostoria manufacturing facility for nearly six
years. She is blind in her right eye, but has fairly good vision in her
left eye.29 She does not drive. She lives alone and is responsible for
running her household.30 She has also been diagnosed with an intellectual
disability.31 She has held some competitive employment in the past, but was
out of the labor market immediately after graduating from high school and
for many years thereafter while raising a family.32 Her OEDI form finds
that she has substantial functional limitations in the areas of self-care,
self-direction, capacity for independent living, learning and economic self-
sufficiency.33 A hand-written document in her file states:
Pam can accomplish most daily living skills. She does not need
assistance, however, with money/budgeting, laundry, medication, and
transportation. Social skills: Pam appears friendly. She has been in a long-
term marriage and has contact with her family on a regular basis. Pam has
an adult daughter. Physical: Pam has a diagnosis of depression. No
limitations per her physical. Vocational: very limited past employment at a
tomato farm. She could not keep up with production demands.34
Ms. Steward has chosen to work at the Fostoria manufacturing facility
mostly because of availability of transportation, but also because she
feels more comfortable there than she would in competitive employment:
The only reason I do choose to work there is because of
transportation. I'm able to get along with the people better there.
They don't act like they're better than me. I mean, the employees that
do work there, we're all in competition and we pretty well get
along.35
Mark Felton has worked for Respondent for approximately four years.36
He has been diagnosed with Asperger's disorder. He has held a small amount
of competitive employment in the past.37 He graduated from high school in
2011.38 He has held an Ohio driver's license since 2014, although he does
not have a car. He lives at home with his parents.39
IV. THE RESPONDENT
The Seneca County Board of Mental Retardation (predecessor of DD) was
established in 1967.40 At some point thereafter, Respondent and Roppe
Industries entered into a partnership and established a workshop in
Fostoria, Ohio.41 Roppe Industries is a Fostoria-based company which
manufactures rubber flooring and other products.42 In 1989, Respondent's
Fostoria workshop was moved into a factory purchased by Roppe Industries.43
The Fostoria facility performs many jobs under a contract with Roppe
Industries.44 A representative of Roppe Industries holds a seat on the
Board of Respondent.45
Respondent's Fostoria facility is in operation between 8:30 am and
3:15 pm on weekdays. All employees are required to spend approximately one
hour of the workday in an unpaid educational or social "activity." There is
a 30-minute lunch period, and two 15-minute breaks during the workday. It
is thus difficult for an employee at Fostoria to perform more than about 5
hours per day of paid work.
V. THE WORK PERFORMED BY PETITIONERS
In order to determine whether the payment of a "special minimum wage"
is justified, a number of criteria are considered:
(1) The nature and extent of the disabilities of the individuals
employed as these disabilities relate to the individuals'
productivity;
(2) The prevailing wages of experienced employees not disabled for
the job who are employed in the vicinity in industry engaged in work
comparable to that performed at the special minimum wage rate;
(3) The productivity of the workers with disabilities compared to
the norm established for nondisabled workers through the use of a
verifiable work measurement method (see §525.12(h)) or the
productivity of experienced nondisabled workers employed in the
vicinity on comparable work; and
(4) The wage rates to be paid to the workers with disabilities for
work comparable to that performed by experienced nondisabled
workers.46
At Respondent's Fostoria facility, a significant amount of the work
performed is finishing and packaging product from Roppe Industries. By way
of example, at Respondent's Fostoria manufacturing facility, pieces of
rubber flooring manufactured by Roppe Industries are cut to appropriate
size, the pieces have a hole drilled in them, and the pieces are sent
through a printing process where each piece has identifying information
printed onto it. Each of these cutting, drilling and printing jobs is paid
on a piece-rate basis, and the Respondents each have experience performing
these various jobs.
When performing jobs paid on a piece-rate basis, each of the
Petitioners occasionally has been able to earn more than minimum wage. For
example, Mark Felton was able to earn more than $14.00 per hour on
September 4, 2015, on a press machine that punches out rubber grommets from
a blank (the "Click 5 machine").47 On October 16, 2015, Joe Magers was able
to earn nearly $9.00 per hour on a piece-rate job called "Affix Screw and
Remove."48 Pamela Steward was able to earn $11.84 per hour on a drill press
on October 2, 2015.49 The Ohio minimum wage during this period was $8.10.
Mr. Biggert described the opportunities for community employment:
Q. Mr. Biggert, you do have folks that do have community
employment; is that correct?
A. Yes.
Q. And some of them are community employment at the same time that
they're working at Seneca Re-ad; is that correct?
A. Yes.
Q. The folks who are working community employment, they're getting
paid above minimum wage when they're in the community; is that right?
A. Correct.
Q. And they're getting paid below minimum wage in your workshop; is
that right?
A. Correct.50
The most significant job at Respondent's Fostoria manufacturing
facility which is paid on an hourly basis is known as "the line" or "the
assembly line" or "the Creform line."51 Photographs of the Creform line are
in the record.52 The end product of the Creform line is a bundle containing
many different colored samples (each approximately 4 inches long by 2.5
inches wide) of Roppe Industries' rubber flooring held together by a small
metal chain. A photograph showing this completed bundle of samples is in
the record.53 A consumer wishing to purchase Roppe Industries products can
presumably take this bundle to a home or office in order to select the
appropriate color to purchase.
Anywhere between thirty and forty employees sit or stand at stations
along the Creform line. In blue and red bins in front of each work station
are pieces of the Roppe Industries product which, before being delivered to
the line, have been cut to size, had the printed legend applied, and has
had a hole drilled in them. A photograph of the bins containing the Roppe
Industries product is in the record.54
A wooden jig, approximately 24 inches tall and 6 inches wide, has a
metal post sticking straight up from its base. A long metal chain is placed
over the tip of the post so that the chain hangs parallel to the post. A
photograph of several jigs with the chains in place is in the record.55 The
jig is slid on a table containing embedded rollers from person to person
down the assembly line from each worker's left to right. The employee at
each station will typically remove one sample from each of the two bins in
front of the employee (each bin contains a different color product), and
will then place the hole in the product over the post, thereby threading
the chain through the hole that has been drilled in each piece. The jig is
then slid along the table to the next person on the line, who repeats the
process with different color samples. At the end of the line, the chain is
closed and the ring of samples is inspected and then sent off for shipment.
During the period August 14, 2015, to December 15, 2015,
approximately 51 percent of Mark Felton's working hours at the Fostoria
manufacturing facility were on the Creform line.56 He was paid $4.11 per
hour for his Creform line work.57 During the same period, Joe Magers spent
about 62 percent of his work time on the Creform line.58 Mr. Magers was
initially paid $3.00, and then $3.15 per hour, for his work on the Creform
line.59 Pamela Steward spent about 52 percent of her work time during this
period on the Creform line, for which she was paid $3.22 per hour.60
When absences, "activity" time, holidays, and other unpaid time is
deducted, during the period August 14, 2015, to December 31, 2015, Mark
Felton was paid for working a total of 328.25 hours at Respondent's
Fostoria facility (approximately 16.5 paid hours per week).61 His gross
compensation during that period was $2,573.63 (about $129 gross per week),
and that amount includes an unexplained "Misc-Adj" payment of $571 paid
just before this matter went to hearing.62
During the same period, Joe Magers had a total of 257 hours for which
he was paid wages (about 13 paid hours per week).63 His gross compensation
during the period was $1,534.32, or about $77 gross per week, which also
includes an unexplained "Misc-Adj" payment of 435.54.
During the same period, Pamela Steward was paid for working 278.25
hours (about 14 paid hours per week). Her gross compensation during the
period was $2,624.41 (about $131 gross per week), including a "Misc-Adj"
payment of $685.55. Ms. Steward testified about the unexplained "Misc-Adj"
payment:
Q. Okay. And do you know how much your average paycheck is?
A. Here recently, I can't even figure this one out, why it would be
that high or anything like that there. But here recently, just before
Christmas I received a check of $763.13.
Q. And you can't figure out why it's that -
A. No, I do not have no idea, no, why it's that high and why it
would be that high.
Q. And before that, how much were you getting paid, that paycheck -
A. Well, I was probably getting maybe like $100, $200 maybe.
Q. Every two weeks?
A. When I was placed on the good jobs, when I was on those jobs
like the saw and that.
Q. And you're paid every two weeks, is that correct?
A. Yeah. I mean, I made a call to Michelle Guest (ph.) this
morning, stating how high my check was and why it was that high and
she said, well-she goes, we think you got a letter in with the check.
But I don't recall seeing a letter in with that check-
Q. Okay.
A. -stating why it would be that high. I mean, I don't have a
problem with it, that's fine. I mean, if you want to pay that kind of
money, go ahead and pay me that kind of money. I mean, I just can't
figure out why it would be so darn high.64
VI. THE CALCULATION OF COMMENSURATE HOURLY WAGES
Department of Labor regulations describe the methods by which the
special minimum wages paid to the Petitioners and their co-workers are to
be calculated. A method for calculating work paid as piece-work,65 and a
method for calculating hourly wages66 are prescribed by the Department of
Labor.
The Section 14(c) Certificate issued to Respondent by the Department
of Labor authorizes Respondent to pay special minimum wages to those
working in the facility. For the work performed on the Creform line (paid
on an hourly basis),67 the calculation of the hourly wage to be paid
requires Respondent to gather the following information:
1. Respondent conducts an annual survey of employers in Seneca County,
Ohio, to determine the amount of hourly wages being paid to experienced
workers in competitive positions thought to be comparable to those occupied
by Petitioners (this is known as the "prevailing rate").68
2. From time to time,69 Respondent determines how many jigs can be
processed in one hour by a non-disabled worker familiar with the Creform
line.70 This number becomes known as the "production standard" or "standard
of production." The persons participating in this timed test are typically
supervisors with familiarity with the operation of the Creform line.71 The
most recent results of these timed tests are Respondent Exhibits C-1 and C-
2. Over the past few years, the production standard for the Creform line
has been established at these levels:
Dates and Production Standard (Jigs per Hour)
2010 to 2013: 816
2013 to 2016: 1,114
2016 (current): 1,607
3. Approximately once every six months, Respondent individually
determines how many jigs of product can be processed in one hour by each
employee working on the Creform line.72 A supervisor will time the employee
and count the number of jigs processed during that time.73 Once the
information described above is gathered, a calculation is made: the number
of jigs per hour completed by the tested employee (Step 3) is divided by
production standard (established by the number of pieces completed in one
hour by the tested supervisor at Step 2). That product is then multiplied
by the prevailing rate (the hourly wage paid to experienced workers in the
county) as determined by Step 1. This calculation yields the "commensurate
hourly wage" to be paid to the employee for his or her work on the Creform
line.74
By way of example: If the prevailing rate for light manufacturing in
Seneca County is $9.00 per hour (step 1), and if the standard setter can
complete 1,000 jigs on the Creform line in an hour (step 2), and if a
disabled employee on the Creform line can complete 750 jigs per hour (step
3), then the commensurate wage to be paid to the worker is $6.75 per hour
(750 divided by 1,000 = 0.75. $9.00 multiplied by 0.75 = $6.75). This
commensurate wage remains in effect until the next time the employee's
performance is tested, or until the information in steps 1 or 2 changes.
The measurement of the hourly rate of production achieved on the
Creform line, either by supervisors when acting as "standard setters," or
by the Petitioners during their twice-yearly production assessments, plays
a critical role in determining the hourly wage paid to each of the
Petitioners for their work on the line.
Exhibits D-1 through D-6 are the "Hourly Job Sampling" forms
completed for each Petitioner during the relevant period. While all of
these forms indicate the Petitioner was tested on the line for precisely
"1.000000 hour" or for "100% of an hour," and while each form reports a
precise number of jigs produced during that 1-hour test period, the
testimony at the hearing was that these tests actually only lasted a few
minutes, and the performance results recorded on the Hourly Job Sampling
forms were extrapolated from a very short period of actual examination to a
1-hour time period. By way of example, Exhibit D-1 is a June 17, 2013,
Hourly Job Sampling report for Mark Felton. This form reports on its face
that Mr. Felton produced 251 jigs on the Creform line in 1.000000 hour. Mr.
Felton testified about his testing:
Q. So Mark, when-did Terry do most of the time studies?
A. Yes.
Q. And did he tell you he was doing the time study when he did it?
A. I think so.
Q. So you were on the Creform line. And do you recall how long the
time study lasted or how it was measured, how he did it?
A. It was probably less than a minute, I'm pretty sure.
Q. Do you know if he was measuring it by time or number of jigs?
A. Pretty much pace the jigs, how fast you run the jigs.75
Mr. Magers testified as follows:
Q. Okay. Now, during the time that you've been at the workshop, has
your productivity ever been tested or timed?
A. Only on the line.
Q. Okay. And when they test you, do you guys have a name for what
that's called?
A. Well, they do call it a time study.
Q. Okay. So do you know about how often they normally do time
studies?
A. Usually about every six months.
Q. Okay. And is it your testimony that they've only done time
studies for you on the line?
A. Yes, I know of no other situations. And I guess there's even
been times when they'd study me on the line unbeknownst to me.
Q. Okay. And how do they normally do like, you know, their time
studies? Who does it and what do they tell you?
A. It would be done by Terry Stocker. They set you up with about
eight jigs and I don't know, they kind of, you know, prod you in there
and they don't really encourage much of any kind of real productivity.
And, you know, in that time you're kind of hoping that you don't cause
a chain to fall off the jig so you're not worried about taking time
putting that back on.
Q. So how long does it take you to do about eight jigs?
A. Probably less than a minute.
Q. So they're not-are they then timing you for like a certain
amount of time or just doing it by however many jigs they set up for
you?
A. Just however many jigs they set up.76
Ms. Steward testified about her testing on the Creform line:
Q. Okay. Now when they normally test you on the Creform line, how
does that-what happens when they're testing you?
A. Terry or Rodney generally come over and tell me, hey, Pam, I'm
going to test you today. Are you fine with that? And I'll tell them,
yes, I am fine with that. So he'll test me and I'm generally pretty
fast at my work.
Q. How long does the test last, generally?
A. I don't even think it lasts more than a minute. It don't seem
like it, anyways.
Q. Does he give you a certain number of jigs to work or how does
that-
A. Yeah, probably about eight, maybe.77
There is no accurate recording of the actual, observed, production of
the Petitioners anywhere in the record until after this proceeding had been
commenced and Mr. Knuckles was hired by Respondent as a consultant. These
tests have a direct and substantial impact on the calculation of the hourly
wage to be paid to the Petitioners.
There are accurate recordings of the actual, observed, production of
the standard setters. Exhibit C-1 presents the results of a timed test
performed by supervisors on September 30, 2013. The face of this document
shows that 3 separate tests were performed that day: the first test lasted
52 seconds, during which 17 jigs were completed by the standard setter. The
second test lasted 47 seconds, during which 15 jigs were completed. The
third test lasted 59 seconds, during which 20 jigs were completed by a
supervisor. Arithmetic calculations are then shown on the exhibit, showing
how three tests lasting less than one minute were extrapolated to determine
a 1-hour production standard.
Exhibit C-2 is a record of tests performed by standard setters on
December 16, 2015. Each of the 2 tests performed on December 16, 2015,
lasted about 10 minutes. Again, arithmetic calculations were made to
extrapolate the results of this 10-minute test to a 1-hour production
standard.
Of particular note when comparing Exhibits C-1 and C-2 is the dramatic
difference in performance by the standard setters. On September 30, 2013
(Exhibit C-1), supervisor Laurie Fretz produced 20 jigs in 59 seconds
during the third test reported on that Exhibit. On December 16, 2015
(Exhibit C-2), Ms. Fretz produced 26 jigs per minute during the second
reported test. Ms. Fretz was thus measured to be producing about 360 more
jigs per hour in 2015 than she had produced in 2013. Nothing on the Creform
line had changed during this time, nor had the method of production
changed. These tests have a direct and substantial impact on calculation of
the hourly wage paid to the Petitioners.
Ms. Fretz testified:
JUDGE BELL: Can you-does the difference between 1,114 jigs per hour
and 1,607 jigs per hour seem to you like a big difference?
THE WITNESS: Not really, being more familiar on the line-I worked at a
steady pace, like I was always taught to do.
JUDGE BELL: Okay.
THE WITNESS: And the pace that I could work at all day.
JUDGE BELL: Do you have an understanding of what the effect is on the
rate of pay for the Petitioners when the standard of production moves
from 1,114 jigs per hour to 1,607 jigs per hour?
THE WITNESS: Yes, the standard is raised.
JUDGE BELL: And what happens to their pay?
THE WITNESS: It depends on how they do on the line.
JUDGE BELL: Assuming that their pay [rate] remains constant, what's
the effect of the production standard going up?
THE WITNESS: It would decrease.
JUDGE BELL: So as the production standard goes up, assuming the
Petitioners' performance remains level, their hourly pay goes down;
correct?
THE WITNESS: Yes.78
VII. THE WITNESSES AT THE HEARING
Each of the Petitioners testified at the hearing. I find the
testimony of the Petitioners to be substantially supported by the
documentary evidence in the record. They were credible, and I accept nearly
all of their testimony.
Both parties called Rodney Biggert in their respective cases-in-
chief. I believe Mr. Biggert is dedicated to the mission of Respondent.
There were areas of Mr. Biggert's testimony that I believe to be lower
probative value - such as his observations of the Petitioners as they work
on the Creform line79-and which I do not fully accept.
Laurie Fretz and Terry Stocker were called by Respondent. Both are
supervisors employed by Respondent. Their testimony was consistent with the
record, and both were entirely credible. The record should reflect my
thanks to Ms. Fretz for guiding counsel and the Court on our tour of the
Fostoria manufacturing facility. This was most helpful.
Three experts appeared at the hearing. Petitioners called Dr. Fredric
K. Schroeder in their case-in-chief. Dr. Schroeder has his Ph.D. in
Education Administration and Supervision from the University of New Mexico,
and since 2014, has been the executive director of the National
Rehabilitation Association. He is also a Research Professor at San Diego
State University. From 1994 to 2001, Dr. Schroeder served as Commissioner
of the Rehabilitation Services Administration of the U.S. Department of
Education. Dr. Schroeder's complete Curriculum Vitae is in the record as
Petitioner's Exhibit 1. Dr. Schroeder's Expert Report (Petitioner's Exhibit
2) concludes that none of the Petitioners "meet the definition of 'worker
with a disability' as required by Section 14(c) of the FLSA to be paid
under a special wage certificate."80
I am concerned that the Petitioners and Dr. Schroeder seem to have
markedly different recollections of the length and quality of Dr.
Schroeder's interviews of them. Dr. Schroeder described an elaborate
interview and information gathering process undertaken in preparation of
his expert report:
Q. And the interview itself, when and where did that happen?
A. It took place in-here in Tiffin. It was over a Friday and
Saturday. I'm thinking it was the first weekend of June 2015. So it
was about a day-and-a-half-long process.
Q. Would the weekend of the 12th and the 13th of June be the
appropriate one?
A. Yes, that sounds correct.
Q. And how much time did you spend with these individuals?
A. I would say the interview with each individual took in the
neighborhood of 90 minutes, give or take 10 or 15 minutes, but about
90 minutes. It was a little longer than I would normally do in an
initial vocational evaluation, but you don't want to go into so much
detail that you end up kind of exhausting the individual with whom
you're speaking. So I would estimate 90 minutes each and then there
was some time when I had a general conversation with them as a
group.81
Each of the Petitioners has a markedly different recollection of the
amount of time they spent with Dr. Schroeder. Ms. Steward's testimony is
representative of that offered by the Petitioners on this subject:
Q. Okay. How many times did you talk to [Dr. Schroeder], do you
know?
A. Maybe a couple times.
Q. Did you meet him in person or on the phone?
A. In person, I believe.
Q. Okay, a couple times in person?
A. Yeah.
Q. That was in June?
A. Yes.
Q. Was that the only time you've ever met Dr. Schroeder?
A. I don't recall. Maybe. Yeah.
Q. Have you talked to him since June?
A. I don't recall that, either.
Q. Okay. And how long did you talk to him?
A. Probably not too long.
Q. Okay. Can you give me a time frame, 10 minutes, 20 minutes, an
hour?
A. Maybe about 10 minutes.
Q. Maybe 10 minutes, okay. Did he ask you questions?
A. Yes, but I don't recall what those questions were.
Q. Okay. Now, you met alone with him for 10 minutes or you only
talked to him for 10 minutes in total?
A. I think we were all there.
Q. Okay. Did you ever meet with him alone?
A. Not that I remember.
Q. Okay. And I think you said you can't recall anything you talked
about.
A. No, I'm sorry. No.
Q. You didn't tell him about any of your prior jobs?
A. I don't recall that, either.82
On this subject, I credit the Petitioners' collective recollections
over that of Dr. Schroeder, and I do find Dr. Schroeder's credibility
diminished. As a consequence of my doubts whether Dr. Schroeder really
gathered sufficient information to support his opinions about whether the
Petitioners are impaired for the work they perform at Fostoria, I discount
much of his testimony pursuant to Evidence Rule 702(b).
Dr. Schroeder also offered testimony about the impact of disability
of the actual performance of work. He also testified about the perceptions
of disability, and how those perceptions color our views about the work
performed by the disabled. I find these assessments to be largely
unaffected by any question I may have as to the quality of his interviews
of Petitioners, and I do not discount Dr. Schroeder's opinions in these
areas.
Petitioners also called Dr. Robert Cimera. Dr. Cimera has his Ph.D.
in Special Education from the University of Illinois, with an emphasis on
school-to-work transition. He is a professor at Kent State University, and
has published extensively in the areas of the economics of vocational
programs and the employment of persons with disabilities. Dr. Cimera did a
thorough analysis of the Petitioners' employment and pay records, and
raised a number of serious questions about the accuracy and consistency of
the calculations made by Respondent which affected the pay received by
Petitioners. Dr. Cimera was candid and credible. His testimony was somewhat
affected by the fact that additional documents were produced after he had
published his expert report, and these additional documents may have
affected some of his conclusions.83 I find Dr. Cimera to be qualified as an
expert on the payment of wages to the Petitioners. However, much of Dr.
Cimera's "scientific, technical, or other specialized knowledge" was of
little help to me in understanding the evidence or determining a fact in
issue.84
Respondent called Mark Knuckles as an expert. Mr. Knuckles was
formerly employed by the Wage and Hour Division of the U.S. Department of
Labor, where he was a specialist in compliance issues involving Section
14(c) of the Fair Labor Standards Act. Since 1986, Mr. Knuckles has
operated Mark Knuckles Associates in Hickory, North Carolina. Mark Knuckles
Associates provides advice and assistance on compliance with the Fair Labor
Standards Act, with a particular emphasis on Section 14(c) Certificates. By
virtue of his deep experience in the subject area, I find Mr. Knuckles to
be qualified as an expert generally on compliance with Section 14(c).
After Petitioners filed this matter, Mr. Knuckles was retained by
Respondent to review Respondent's compliance with Section 14(c). Mr.
Knuckles also performed standard setter testing and testing of the
Petitioners on the Creform line. While I find Mr. Knuckles to be
knowledgeable about Section 14(c) in general, I have difficulty considering
him as an expert when he testified about the Creform line production
studies performed at Fostoria. I largely discount Mr. Knuckles' opinions
about the Creform production tests for the following three reasons: (1) The
production studies themselves involve (a) starting a stopwatch, and (b)
counting how many jigs pass a given point in a given amount of time, and
(c) performing a few simple calculations to determine how many jigs per
hour are being produced by the person being tested. I do not believe this
aspect of Mr. Knuckles' testimony should be considered as "expert" under
Evidence Rule 702(a) as I do not believe it involves "scientific,
technical, or other specialized knowledge"; (2) The wide variances in the
results of the Creform line production tests causes me to believe that
either the testing is not based upon "reliable principles and methods" in
violation of Evidence Rule 702(c), or Mr. Knuckles has not "reliably
applied the principles and methods to the facts of the case" in violation
of Evidence Rule 702(d). I simply cannot reconcile how Ms. Fretz
participated in standard setter tests which produced 1,114 jigs/hour in a
2013 test which Respondent considered to be reliable,85 and was then
inexplicably86 able to produce 1,607 jigs/hour in an 2015 test also
considered to be reliable87; and (3) there is no data accurately describing
how many of the performance tests administered to the Petitioners were
actually done. Any testimony about these tests cannot possibly be "based
upon sufficient facts or data," and is thus not admissible under Evidence
Rule 702(b).
VIII. RESPONDENT IS SUBJECT TO THE ACT
In its post-hearing brief, Respondent raises-for the first time-the
argument that "[p]etitioners failed to allege or prove that Respondent is
engaged in interstate commerce." I note the coyness with which this
argument is posited: Respondent (which would be subject to sanctions under
Rule 18.35(b) of the Rules of Practice of the Office of Administrative Law
Judges for the knowing assertion of an untrue fact) never says that it is
not subject to the Act. It only claims that Petitioners "failed to allege
or prove" that Respondent is engaged in interstate commerce.
As noted earlier, I had the opportunity to visit the Fostoria
manufacturing facility where the Petitioners are employed. While there, I
saw product coming into the plant, the kind of work being performed with
that product, and the volume of finished product being produced. The
Respondents spent much of their time producing product related to the sale
of rubber flooring and moldings. These are construction materials. Given
the testimony of the Petitioners and the witnesses who supervise the work
at the Fostoria manufacturing facility, and given my own observations of
the type and volume of work occurring in Fostoria,88 and given my
observations about the lack of new construction in either Tiffin (where the
hearing was held) or Fostoria (where the Petitioners work), it strains
credulity that all the construction materials being shipped day after day
from the Fostoria work site are remaining in this state.
If Respondent truly believes that it is not engaged in interstate
commerce, and thus not subject to the Act, and if Respondent truly believes
that I had no jurisdiction whatsoever to schedule or conduct a week-long
hearing costing the parties tens (or hundreds) of thousands of dollars,
then I certainly would have expected Respondent to have mentioned such a
claim during our initial case management conference or at the weeklong
hearing. Had the issue been raised during that prehearing conference,89 I
would have requested full briefing of the matter before the hearing ever
commenced. Had I decided to proceed with the hearing, Respondent would then
have had a full opportunity to adduce all of the evidence needed for me to
make an informed decision on this matter. Instead, I have only the shadow
of an argument raised for the first time after the record has been closed.
I hold Respondent entirely at fault for depriving me of the opportunity to
review a fully developed factual record that would either support or refute
the claim (never actually made90) that Respondent is not subject to the
Act.
There is no "pleading" requirement in this case.91 The regulations
governing petitions seeking review of special minimum wages states
explicitly: "[n]o particular form of petition is required, except that a
petition must be signed by the individual, or the parent or guardian of the
individual, and should contain the name and address of the employee and the
name and address of the employee's employer."92 It is thus abundantly clear
that Petitioners were not required to "plead" any jurisdictional
prerequisites when submitting their petition.
The evidence at the hearing was that Respondent repeatedly applied for
Section 14(c) Certificates so that Respondent might pay commensurate wages
to the Petitioners and their co-workers, and to thereby comply with the
Act. Each of the applications signed by Mr. Biggert contains a
"Representation and Written Assurance" that Respondent's "operations are
and will continue to be in compliance with the FLSA."93
The Section 14(c) Certificates issued by the Department of Labor
require Respondent to pay special wages only in compliance with the Act.94
Soon after the petition in this matter was filed, Respondent retained
the consulting services of Mr. Knuckles-who was valued for his expertise in
maintaining compliance with the Act. Mr. Knuckles' expert report states
that he was retained "to provide a professional opinion regarding the
Respondent's compliance with the Fair Labor Standards Act."95 At the very
outset of his analysis, Knuckles assumes:
The workers of the Respondent are engaged in interstate commerce and
subject to the Fair Labor Standards Act, FLSA, each week, in that they
manufacture, process, package, or otherwise handle goods moving in
interstate commerce or their work is closely related and directly
essential to the movement of those goods and products in interstate
commerce.96
In the very first sentence of his expert report, Mr. Knuckles states
that he was retained by counsel for Respondent, and it thus seems
exceedingly improbable that Mr. Knuckles' observations as to the
applicability of the Act were not flyspecked by counsel prior to being
included in an expert report. I am constrained to conclude that the
discussion of the Act in Mr. Knuckles' expert report fairly states the real
position of Respondent.
Respondent rested its case without presenting any facts by which I
could determine whether Respondent is subject to the Act. In light of the
pleading requirements in 29 C.F.R. § 525.22(a), and the "informality"
requirements of §522.22(c), I conclude that Respondent had the burden to go
forward with any such evidence.
Based upon the state of the record, I conclude that the Act applies
to Respondent.
IX. PETITIONERS ARE NOT IMPAIRED FOR THE WORK BEING PERFORMED
The regulations implementing Section 214(c) of the Act provide:
An individual whose earning or productive capacity is not impaired for
the work being performed cannot be employed under a certificate issued
pursuant to this part and must be paid at least the applicable minimum
wage.97
I construe the regulation in the following manner: in order to be
eligible to be paid a special minimum wage, an individual must have a (1)
diagnosed impairment (2) having signs or symptoms (3) which, when supported
by a fair assessment of objective evidence, can be said to consistently
suppress the wage earning capacity of the individual (4) when the
individual is performing a specific job involving a specific set of tasks.
By way of example: an individual with a diagnosed impairment causing
diminished strength in the hands might be disabled for work involving the
assembly of parts by hand, but would likely not be disabled for operating a
machine which is operated only by the use of foot controls. I construe the
regulation to require proof of a clear nexus between the diagnosed
impairment and the impact of that impairment on the actual work tasks being
performed in order to justify the payment of a special minimum wage.
Respondent offers two types of evidence in support of its belief that
Petitioners are "impaired for the work being performed" on the Creform
line: (1) observations of the Petitioners' work habits when they are
working on the Creform line, and (2) the number of jigs produced by
Petitioners per hour when they have been tested as part of setting their
individual hourly pay rate.
As to the first category of evidence-observations of the Petitioners
at work-several witnesses offered their views. One such observation of
Petitioners was made by the Respondent's witness, Mark Knuckles:
During my observation of the work at Respondent and that
performed by the Petitioners, I observed several factors with the
Petitioners that would account for below standard productivity, such
as going off task when work was waiting for them, watching other
workers and staff instead of working, getting up and leaving the work
station during production, not following the prescribed work method,
and attempting to work too fast and making mistakes.98
Later, Mr. Knuckles summarizes his opinion:
[T]he below standard productivity of the Petitioners can only be attributed
to the off-task behaviors, lack of focus, not following the prescribed work
method, trying to go too fast, and leaving the work station, all common
behaviors I observed.99
Mr. Biggert also testified as to his observations of the Petitioners' work
habits. As to Ms. Steward:
[S]he has a hard time keeping pace. Sometimes it is learning a new
task and the training of a new task that we get in can be difficult.
In some instances there's a bit of retraining that needs to be done.
Her ability to follow directions can sometimes be hindered. We've had
instances where she's tried to place two or three pieces into a punch
or a drill at a time to try to speed up her own pace. But the machine
will only take, you know, won't take three at a time as far as
impairing the quality of the product, you know, and needs the reminder
from staff to stay on task and do those tasks the way they're
prescribed.
Q. And based on your experience you think that that's a product of
her disability?
A. Yes, I do.100
Mr. Biggert testified about Mr. Felton's work:
Q. Okay. Have you observed Mr. Felton at work?
A. Yes, I have.
Q. How often have you been able to observe him at work?
A. Quite often. I mean, I'm over there at least one to two days a
week.
Q. Have you noticed anything that you would consider a
manifestation of his limitations or diagnosis at work?
A. Yes.
Q. Like what?
A. Sometimes a hard time following directions; sometimes obsessive
components, which are commonly associated with Asperger's, where he
may obsess on a peer or have an issue with another peer. You see his
focus drift from his work to maybe an issue that he had last night or
an issue he's having with someone specifically.
Q. And how does that impact his productivity?
A. Sometimes he'll walk away from his work station and completely-
not just from his station but literally walk to the other side of the
facility to check up and see on what somebody is doing or try to see
what somebody is up to, and it may be focused on a conversation he had
last night or any number of other factors.
Q. Have you seen whether the staff attempt to redirect him in those
instances?
A. The staff do try to redirect him, yes.
Q. Is this something that happens regularly or infrequently or
what?
A. It happens with some regularity.
Q. Okay. Do you-based on what you know from being an SSA and Adult
Services Director, do you make any connection between those behaviors
and his diagnosis and limitations?
A. Yes.101
Mr. Biggert testified about Mr. Magers' work habits:
I am able and other staff are able to observe some troubles that Joe
will have from time to time in being able to discern between types of
material, if he gets them reversed, or whether material is in a space
or ready to be placed or has already been placed. He has a hard time
discerning that a mistake has occurred and needs staff direction to
help him with that.
Q. Do you rank that to his disability of optic atrophy or vision
impairment?
A. Yes.
JUDGE BELL: Can you describe for me what you mean when you say
"difficult for him to tell whether a mistake has occurred"?
THE WITNESS: In the case of maybe placing two of the samples onto a
chain in the wrong order, he won't necessarily be able to tell that
the pieces are in the wrong order, or in some cases I've witnessed him
get confused as to whether he might have a couple of jigs in front of
him and become confused as to whether he's put pieces on them yet or
not and can't discern whether the job or that job task has been
completed without assistance from staff.
JUDGE BELL: Okay, thank you.
BY MR. KESSLER:
Q. Have you noticed-and I'm sorry, I was only half listening during
your answer. Did you talk about whether he has difficulty telling
colors apart?
A. He can also have some difficulty with colors.
Q. And if, for example, the chain gets knocked off the post, does
that create any problems for him?
A. It can create some problems for him. He can have some issues
with getting it back on the post, or in the case that the post or the
jig comes to him with the chain already off the post, he can sometimes
have an issue noticing that it's off the post to begin with or have an
issue with correcting it, and would need staff to assist him with
that.102
Laurie Fretz is the Division Manager at the Fostoria facility. She
has contact with Petitioners on each day when they are working, and is in a
good position to observe their work behavior. She testified about Mr.
Magers' work:
Q. And for Mr. Magers, have you observed a vision impairment impact
his productivity?
A. Yes.
Q. And have you seen him have problems on Creform line?
A. Yes, at times. He has to feel for the pieces, the holes, and
then put them on the jig. There was a time when we just did the last
time study where he put some pieces on-I'm not sure why he took them
off, but when he took them off, the chain came off, and he dropped a
piece and he asked staff for assistance to put it back on, and he
asked from time to time.
Q. And do you know what he asks for from time to time?
A. If he needs help with something. Sometimes he might ask if, you
know, if he may have taken a color out and put it in the wrong tub or
something like that.103
Ms. Fretz testified about Mr. Felton:
Q. Okay. And for Mr. Felton, have you observed whether his
disabilities impaired his productivity?
A. Yes.
Q. And how would you describe his ability to stay on task?
A. Sometimes it's not good. Sometimes he has a hard time paying
attention. He'll walk away from his work station. One of the last ones
that I observed was during a-the time study that we did. He picked the
jig up and walked to the other end of the line where Pam was and said
something to her, and then walked over and put it on the table, which
was holding everybody else up on the line because he had walked away.
Q. Does he often walk away from his work station?
A. It depends on the day. If he's upset, he walks away a lot, goes
to the restroom a lot.
Q. You answered part-what does he do when he walks away?
A. Usually he can-it's usually-well, it depends. He might go, you
know, talk to somebody or-which they're allowed to talk, but usually
he'll like go to like the other end to talk to somebody or-I don't
know. I don't know, it's hard to explain. When you're on the line, if
he's on one end and he leaves to go make conversation with somebody,
then that holds up the line. It stops the line. The people beside him
can't push jigs down and then nobody can have work that's on the other
side.
Q. And the times that you have seen him walk away, I mean, does he
walk away to go to the bathroom?
A. Yes.
Q. There's nothing wrong with that?
A. No.
Q. Does he walk away to get a drink of water?
A. Yes. Usually if they go to the restroom or want a drink of water
or whatever, they'll tell staff, then staff will cover for them.
Q. And that's normal?
A. Yes.
Q. And that's not an issue, that's not what you're addressing when
he walks away from the line?
A. No.
Q. Okay. How would you describe his ability to follow directions?
A. Sometimes he has a hard time accepting direction from staff.
Q. And what happens-what does he do?
A. Sometimes he can become upset, belligerent, disrespectful to
staff, and he's hard to calm down at times.
Q. Have you observed that on any particular job or any-that's two
questions. Have you observed that on any particular job that he's
working on?
A. It could be on any job actually. It depends. He could be upset,
not because of the job, maybe because of a peer or, you know, a staff
asked him to return to his work station if he's over making
conversation with somebody.
Q. I think you said he gets upset.
A. Yes.
Q. And when was the last time he got upset?
A. It was the week before Christmas break. Another peer came to me
and said that he didn't want to work on the line where Mark was
because Mark had left a message on his cell phone and was saying some
inappropriate things and using vulgar language about his girlfriend,
and he let me listen to it and it was Mark's voice, and I said okay,
so I let him work in Building 1. And in the meantime, Anita had-which
is Mark's boss-had came to me and said that Mark had went off task and
he was in the restroom crying and after their break, which was 10:30,
Mark and Pam came to me and asked me to help resolve the situation,
which I already knew what was going on, so I asked the peer if he
wanted to talk to them, and he said yes. And Mark apologized and they
made up, and he lost about two hours of work over the whole
situation.104
Ms. Fretz testified about Ms. Steward:
Q. Okay. For Ms. Steward, have you observed whether her
disabilities impair her productivity?
A. Yes.
Q. Have you seen her have problems with manual pad print?
A. Yes, there's been some times-she's been trained on the job.
Sometimes she'll get going too fast and pass bad pieces, not having in
the insta-guide. Then when it stamps, it's crooked. Just not checking
the pieces and then they have to be scrapped.
Q. Have you had issues with her on any other jobs?
A. She's not near the standard on some of the other jobs, although
the saw, she does very well on. She's one of the best ones that we
have to cut the tread.
Q. And do you try to put her on the saw for that reason?
A. Yes, but we don't have-we don't-I have to follow what the
customers want and I don't always have the tread to saw.
Q. You may not have the job available every day?
A. Correct.
Q. And that wouldn't be limited to Ms. Steward?
A. No.
Q. Nobody else would do the job that day?
A. No. If there's no material, there's nothing to do.
Q. Has Ms. Steward ever refused to do a job?
A. Yes.
Q. And what was that?
A. Actually the sawing job, I asked her to do it-it was either the
week before our break or the week before that-and it actually kind of
shocked me that she said no, but I usually don't ask why, I just ask
somebody else to do it.
Q. Is that typical for her?
A. Not usually, no. That's why I was kind of shocked that she
refused to do it.105
On balance, I find the foregoing observations to be of little to no
help when I am deciding whether Petitioners are disabled for the work
performed at Fostoria. By the time Mr. Knuckles first observed Petitioners
at work, this proceeding was underway, and Mr. Knuckles had been enlisted
as a witness for Respondent. That business relationship could not help but
color Mr. Knuckles' observations of the Petitioners. Additionally, Mr.
Knuckles had only a very limited amount of time in which to observe
Petitioners at work. From the testimony he offered at the hearing, he was
performing all sorts of tests and measurements during his brief time in
Fostoria, and his opportunity to gather anything more than anecdotal
information about the job performance of the Petitioners is questionable.
Nor does Mr. Knuckles have medical, psychological or other specialized
training which would permit him to draw meaningful conclusions about how
Mr. Magers' visual impairment actually affects his workplace performance,
or how Ms. Steward's intellectual disability actually limits her when she
is performing work, or how Mr. Felton's disability allows him to possess a
driver's license, but does not permit him to place pieces of flooring on a
metal spindle as quickly as someone else. It is not clear whether Mr.
Knuckles was able to see Petitioners working anywhere other than the
Creform line. Mr. Knuckles' testimony about Petitioners' work performance
is not persuasive.
I discount almost entirely Mr. Biggert's observations of Petitioners
at work. Mr. Biggert testified that he was only in the Fostoria
manufacturing facility one or two times per week.106 Presumably he was not
there to watch the Petitioners perform their jobs. Approximately 80 people
work in Fostoria. I do not believe Mr. Biggert was ever in a position
before the initiation of this proceeding to make the kind of detailed
observations of Petitioners over a long enough period of time that his
testimony describes the consistently applicable work characteristics of the
Petitioners. As is the case with Mr. Knuckles, I greatly discount any
observations of Petitioners after the initiation of this case. I find that
the objectivity of observation demanded when applying §214(c) is
compromised once high-stakes litigation is underway. Mr. Biggert's
testimony about the Petitioners in not persuasive.
Ms. Fretz' observations are generally anecdotal, and do not present a
longitudinal explanation of how the Petitioners' acknowledged disabilities
have affected their work performance over the lengthy time she has watched
the Petitioners at work. She admits that her snapshot observations of Ms.
Steward, in part, are "not typical" of Ms. Steward's actual job
performance.107 Her observations of Mr. Felton's holiday meltdown 108 do
not inform me of how Mr. Felton's disabilities consistently affect his job
performance.
For his part, Mr. Felton flatly denies the observations that he
"lacks focus" while working on the line:
Q. Okay. Do you remember with any of the time studies that was done
whether you got up and walked away from the line while you were being
tested?
A. No.
Q. You don't recall or you didn't?
A. I didn't.
Q. Do you recall if you ever lost focus on what you were doing?
A. No.109
It is not necessary for me to resolve the specific dispute between
Mr. Felton's view of his workplace behavior and that of his supervisors.
After observing all of the witnesses as they testified, and after
evaluating their credibility, I am not persuaded that the observations of
the Petitioners made by Mr. Knuckles, Mr. Biggert and Ms. Fretz establishes
that they are disabled for the work performed by them at Fostoria. Instead,
it seemed as though a scripted narrative was being played out.
I had the opportunity to visit the Fostoria facility while production
on the Creform line was ongoing. I also had the chance to view many of the
jobs in Fostoria which are paid on a piece-rate basis. The jobs being
performed by Petitioners are simple and straightforward. The jobs have been
designed so they might be performed by persons with all different types of
disabilities. Watching actual production take place on the Creform line did
not help me to understand in the least why Petitioners' respective
impairments might slow them. The same can be said for the piece-rate work I
was able to observe. There is nothing about the work itself which would
inherently favor production rates by a non-disabled person over the
production rate of an individual with one or more disabilities.
Lastly, I had the unique opportunity to observe each of the
Petitioners while each was on the witness stand and to thereby make a
credibility determination. Equally important, I was able to carefully
observe Petitioners as they sat in the courtroom during more than 30 hours
of testimony. I was able to evaluate the Petitioners as they entered and
left the courtroom, as they interacted among themselves and with the other
people in the courtroom. In the compact downtown of Tiffin, Ohio, I even
occasionally saw the Petitioners as they arrived at the courthouse or went
to lunch, or as they waited for rides at the end of the day. Mr. Magers'
visual impairment did not interfere with his ability to be a full
participant in the courtroom activities. Mr. Felton did not have any
emotional outburst such as that described by Ms. Fretz. Ms. Steward seemed
to have no difficulty seeing what was happening in the courtroom or
understanding the sometimes complex testimony.
Respondent next argues that I should consider the Petitioner's
individual hourly production rates when determining whether they are
"impaired for the work being performed" on the Creform line.110
At the outset of this analysis, I note my significant reservations
about the quality of the production data maintained by Respondent. These
reservations are discussed in detail in Section X of this Decision and
Order.
I have carefully reviewed the hourly production on the Creform line of
each Petitioner.111 It is undeniably true that the Petitioners have never
produced on the Creform line at the production standard which was in effect
at the time the testing took place.112 However, I have no medical,
psychological or other evidence in the record which explains (in a cause-
and-effect manner) why this is so. On the record now before me, it would be
pure speculation to conclude that the Petitioners don't meet the production
standards solely or primarily because of their respective disabilities. It
is just as likely they don't meet the production standards because they are
bored with a highly repetitive task they have performed on a hundred prior
occasions, or because they lack a substantial economic impetus to perform
at a higher level,113 or because they self-identify as individuals whose
performance should be lower than their non-disabled supervisors. I find
there to be no proof in the record that Petitioners are intrinsically
incapable of performing at the level of their non-disabled supervisors
because of Petitioner's visual impairments, intellectual disability or
Asperger's disorder. No such causal relationship has been persuasively
demonstrated.
When Mark Knuckles measured the Creform line production rates of Mark
Felton and Joe Magers in December 2015, he obtained the following results:
Mr. Felton was able to produce at the rate of 1,029 jigs per hour in test
number 2.114 Mr. Magers was able to produce at the rate of 978 jigs per
hour in one test, and 816 jigs per hour in a second test.115 These measured
production rates are above (and in some cases well above) the rate of
production established by the non-disabled standard setter in 2010, and
above the standard units per hour measure that was in place for all Creform
line workers between 2010 and 2013.116 Nothing about the Creform line
process changed between 2010 and 2015. The fact that the Petitioners were
able to meet-and exceed-what had been the production standard set by a non-
disabled supervisor contradicts the inference that Petitioners work
performance numbers establishes that they are disabled for the work
performed.
The same is true for piece-rate work. When performing jobs paid on a
piece-rate basis, each of the Petitioners occasionally has been able to
earn more than minimum wage. I believe this fact directly refutes the
conclusion that the Petitioners are disabled for the work they perform in
Fostoria. As noted above, Mark Felton was able to earn more than $14.00 per
hour on the Click 5 machine.117 Joe Magers was able to earn nearly $9.00
per hour on a piece-rate job called "Affix Screw and Remove."118 Pamela
Steward was able to earn $11.84 per hour on a drill press.119 Based upon my
observation of these jobs during the visit to the Fostoria facility, these
other jobs seem comparable to the Creform line in terms of skill level. The
fact that Petitioners have been able to exceed minimum wage in piece-work
jobs of similar complexity to the Creform line effectively rebuts the
notion that Petitioners are disabled for the work performed by them.
After making my own observations of the production processes in the
Fostoria manufacturing facility, and after making my own observations about
the practical impact of the Petitioners' disabilities on their public
lives, I conclude that while each of the Petitioners unquestionably has one
or more disabilities, those disabilities should not, and do not, impair any
of the Petitioners from performing any of the jobs in Petitioner's Fostoria
facility. I conclude that Respondent has not had in the past, and does not
now have, the legal ability to employ any of the Petitioners under a
Section 14(c) Certificate, and that each of the Petitioners has been, and
is now, entitled to earn at least minimum wage when working in the Fostoria
manufacturing facility. For these reasons, I find Respondent has not paid
Petitioners the minimum wage to which Petitioners have been entitled, and
that Respondent has thus violated §206 of the Act.
X. RESPONDENT HAS FAILED TO PROVE THE PROPRIETY OF THE WAGES PAID
The Regulations implementing Section 214(c) of the Act provide:
In determining whether any special minimum wage rate is
justified, the ALJ [administrative law judge] shall consider, to the
extent evidence is available, the productivity of the employee or
employees identified in the petition and the conditions under which
such productivity was measured, and the productivity of other
employees performing work of essentially the same type and quality for
other employers in the same vicinity and the conditions under which
such productivity was measured. In these proceedings, the burden of
proof on all matters related to the propriety of a wage at issue shall
rest with the employer.120
I conclude Respondent has failed to demonstrate by a preponderance of
the evidence that the wages actually paid to Petitioners during the
relevant period have been properly calculated. The following are examples
of the significant shortcomings of the Respondent's calculations:
(1) Over the past four years, the hourly production standard set by non-
disabled supervisors acting as "standard setters" on the Creform line has
increased from 816 to 1,607 jigs per hour. No explanation for this 100
percent increase in performance was offered at the hearing. No changes to
the method of production on the Creform line occurred during the time when
this increase occurred. Mr. Knuckles testified that the rate of production
of non-disabled workers should remain relatively constant over time:
Q. So all three, Pam, Mark and Joe, who have very different
disabilities, all consistently performed higher at piece rate jobs than on
the hourly jobs, is that right?
A. That's correct.
Q. Different disabilities?
A. Correct. It's not unusual; very common.
Q. Yeah. Among people with disabilities there's huge variations in
ability, how they're going to do all of these different types of jobs,
right? Is there, in your experience, variation in the abilities of
folks without disabilities to perform these types of jobs?
A. To perform these types of jobs?
Q. Yes.
A. I wouldn't think that they-without disabilities there would be-I
haven't done any studies of people doing these types of jobs. These
are different jobs than you would find out in industry, typically. But
would we find differences? There would be some differences, yes, but
generally not as much.121
The variability in the performance results of the same non-disabled
person (Laurie Fretz) performing the same test over a 2-year span is quite
large. The establishment of this production standard was of critical
importance to the calculation of the Petitioner's weekly wages. The
unexplained 100 percent variance in the production rate of the standard
setters convinces me that the numbers have not been properly derived from
any defined professional methodology, and are, in fact, arbitrary.
(2) Respondent presented no evidence about how the 816 jigs per hour
standard was set in 2011. The hourly rate of the Petitioners was dependent
upon that standard until October 2013. Without evidence which allows me to
evaluate the methodology used to set the 816 jigs per hour standard, and in
light of my serious concerns about how all other standards have been set
and documented, I do not presume the 2011 test was properly done and/or
properly documented. I cannot find Respondent has met its burden to prove
the propriety of the wages paid prior to the 2013 performance standard
test.
(3) The establishment of the performance standard in 2013 was based upon
a flawed methodology. As described in detail above, the 2013 performance
standard122 was extrapolated from the results of testing which lasted less
than one minute. The individual who performed this test acknowledged at the
hearing that these intervals were too short to generate a valid study:
Q. Okay. So when you made the decision-and I assume it was your
decision, tell me if it wasn't-to run the first test here for 52
seconds, did you believe that was an appropriately long period in
order to be able to make a fair assessment of the standard setter's
performance?
THE WITNESS: In looking back, no.
JUDGE BELL: Okay. So I assume you would say the same thing for 47
seconds?
THE WITNESS: Correct.
JUDGE BELL: And the same thing for 59 seconds?
THE WITNESS: Yes.123
This flawed production standard played a pivotal role in calculating
the amount of money paid to the Petitioners from October 2013 to January
2016. In light of the admission that these test results are flawed, the
"propriety" of the wages paid to the Petitioners based upon that testing
has not been established.
(4) As noted above, when comparing Exhibits C-1 and C-2, there is a
dramatic difference in performance by the standard setters. On September
30, 2013 (Exhibit C-1), supervisor Laurie Fretz produced 20 jigs in 59
seconds during the third test reported on that Exhibit. On December 16,
2015 (Exhibit C-2), Ms. Fretz produced an average of 26 jigs per minute
during the second reported test. Ms. Fretz was thus measured to be
producing about 360 more jigs per hour in 2015 than she had produced in
2013. Nothing on the Creform line had changed during this time, nor had the
method of production changed. These tests have a direct and substantial
impact on calculation of the hourly wage to be paid to the Petitioners. The
unexplained variance in the production rate of Ms. Fretz when acting as a
standard setter convinces me that the production numbers have not been
properly derived from any defined professional methodology, and are, in
fact, largely arbitrary.
(5) Respondent has a tolerance for wide variance in performance test
results that I do not share, and which I do not believe generates
information that should be admissible as evidence. Mr. Knuckles was asked
about his tolerance for variability:
JUDGE BELL: I'm sorry, did you run two different samples?
THE WITNESS: Yes.
JUDGE BELL: So the first sample he produced 717 units per hour and the
second 1,028 units per hour?
THE WITNESS: Yes.
JUDGE BELL: And are those thought by you to be consistent?
THE WITNESS: Consistent, yeah. Yes, they're good. Yes, these are good
samples.
JUDGE BELL: But they are 20-some percent-
THE WITNESS: Yes. Well, while I was observing Mark, there's other
factors in there. Mark would get up and move around, lose focus on the
work. So that could explain the difference here.124
Respondent seeks to admit the results of these performance tests
through Mr. Knuckles to support Mr. Knuckles' opinion that the Petitioners
are disabled for the work performed in the Fostoria manufacturing facility.
Under the standard set forth in Daubert v. Merrell Dow Pharmaceuticals, I
am constrained to take notice of the error rate when evaluating the
admissibility of expert opinion:
Additionally, in the case of a particular scientific technique, the
court ordinarily should consider the known or potential rate of error, and
the existence and maintenance of standards controlling the technique's
operation.125
Here, I believe the variances between the performance tests prevents
them from being offered by Mr. Knuckles as evidence the Petitioners are
disabled for the work performed by them.
(6) The documentation of the Petitioner's performance tests on the
Creform line contains inaccuracies. The majority of these forms incorrectly
state the Petitioners were timed for a full one hour, when it is now clear
that was not the case. Respondent cannot sustain its burden to prove the
propriety of the wages paid without clear, accurate, contemporaneous
records of what was done during these crucial performance tests.126
(7) The fact that the Petitioners have occasionally been able to perform
at minimum-wage levels when performing piece-rate work leads me to believe
that the job testing on the Creform line systematically suppresses the
volume of production of which each Petitioner is capable. No explanation
has been offered as to why Petitioners allegedly perform so much better on
some piece-rate work than they do on the Creform line. In the absence of an
explanation, and for all the reasons stated above, Respondent has failed to
demonstrate the "propriety" of the wages paid to Petitioners.
For the reasons stated above, Respondent has failed to sustain its
burden to prove the propriety of the wages paid to the Petitioners. Where,
as here, the Respondent has failed to prove the propriety of the wages
paid, the consequent failure of Respondent to pay minimum wage to the
Petitioners constitutes a violation of §206 of the Act.127
XI. DAMAGES
Under 29 U.S.C. §216(b), employers who fail to pay minimum wage to
their employees are liable to the affected employees for the amount of
their unpaid minimum wages plus "an additional equal amount as liquidated
damages."128 I have been supplied with approximately three years of
detailed wage information for each Petitioner, and I have been asked to
award each Petitioner the difference between minimum wage and what the
Petitioner was actually paid by Respondent for that period.129 Petitioners
have not asked me to award them liquidated damages, interest or attorney
fees.
A. The Statute of Limitations in §255 of the Act does not Apply
Petitioners and Respondent are in agreement that §255 of the Act
establishes a two-year statute of limitations for back pay claims absent
willful violations of the Act, and they agree that statute of limitations
is applicable to this case.130
I disagree with the parties, and I find that the statute of
limitations contained in 29 U.S.C. §255 is not applicable to this
proceeding. The statute states:
Any action commenced on or after May 14, 1947, to enforce any
cause of action for unpaid minimum wages, unpaid overtime
compensation, or liquidated damages, under the Fair Labor Standards
Act of 1938 . . . may be commenced within two years after the cause of
action accrued, and every such action shall be forever barred unless
commenced within two years after the cause of action accrued, except
that a cause of action arising out of a willful violation may be
commenced within three years after the cause of action accrued;
I find the matter before me is not an "action commenced . . . to
enforce any cause of action for unpaid minimum wages, unpaid overtime
compensation, or liquidated damages" under the Act. I find instead that
this is a petition directed to the Secretary of Labor seeking to "obtain a
review of such special minimum wage rate"131 being paid to the Petitioners.
"Petitions" brought pursuant to §214(c)(5)(A) are clearly distinguishable
from an "action commenced . . . to enforce any cause of action for unpaid
minimum ages" in at least the following respects: (1) the §214(c)(5)(A)
proceedings are conducted by Administrative Law Judges, not by the Article
III judges who preside over the "actions" to which §255 applies; (2) the
parties to the "actions" referenced in §255 seek to obtain conclusive
judgments, while the object of "petitions" under
§214(c)(5)(A) is to obtain the "final agency action" referenced in
§214(c)(5)(E) and (F). I conclude that Section 255 refers and is applicable
to lawsuits brought in an Article III court, and I further conclude that
the statute of limitations contained in §214(c)(5)(E) does not apply to
this administrative proceeding before the Secretary of Labor and his
delegees.
I further find that application of the statute of limitations in §255
of the Act to the facts of this case would create an irreconcilable
conflict with the regulations governing my calculation of damages:
If the ALJ finds that the special minimum wage being paid or which has
been paid is not justified, the order shall specify the lawful rate
and the period of employment to which the rate is applicable. In the
absence of evidence sufficient to support the conclusion that the
proper wage should be less than the minimum wage, the ALJ shall order
that the minimum wage be paid.132
The plain reading of 29 C.F.R. §525.22(e) instructs me to determine
the "period of employment" over which unpaid minimum wages are to be paid
to the Petitioners. There is no reference in 29 C.F.R. §525.22(e) to the
statute of limitations contained in §255 or the Act, or to any other
temporal limitation on the calculation and award of back pay. I am thus
constrained to calculate the "period of employment" without regard to the
§255 statute of limitations.
I further decline to import the statute of limitations contained in
§255 of the Act because of significant problems which would arise if one
attempted to apply the "willfulness" standard to matters brought under
§214(c)(5)(A). The problems which would inevitably arise when attempting to
apply the statute of limitations of §255 of the Act to petition actions
commenced under §214 of the Act lead me to conclude that the authors of the
Act did not intend the §255 statute of limitations to apply to §214
petition matters.
In McLaughlin v. Richland Shoe Co.,133 the word "willful" was given
the following meaning:
In 1965, the Secretary proposed a number of amendments to expand
the coverage of the FLSA, including a proposal to replace the 2-year
statute of limitations with a 3-year statute. The proposal was not
adopted, but in 1966, for reasons that are not explained in the
legislative history, Congress enacted the 3-year exception for willful
violations.
The fact that Congress did not simply extend the limitations period
to three years, but instead adopted a two-tiered statute of limitations,
makes it obvious that Congress intended to draw a significant distinction
between ordinary violations and willful violations.
In common usage the word "willful" is considered synonymous with such
words as "voluntary," "deliberate," and "intentional." See Roget's
International Thesaurus § 622.7, p. 479; § 653.9, p. 501 (4th ed.1977). The
word "willful" is widely used in the law, and, although it has not by any
means been given a perfectly consistent interpretation, it is generally
understood to refer to conduct that is not merely negligent. The standard
of willfulness that was adopted in Thurston-that the employer either knew
or showed reckless disregard for the matter of whether its conduct was
prohibited by the statute-is surely a fair reading of the plain language of
the Act.134
There is no question here that Respondent willfully did not pay
minimum wage to the Petitioners. Instead, Respondent sought and obtained
from the Department of Labor a series of Section 14(c) Certificates prior
to paying Petitioners less than minimum wage for their labor. I find the
notion of "willfulness" set forth §255 of the Act (and as defined in
McLaughlin v. Richland Shoe) overlooks the explicit authorization in the
Act for an employer to willfully pay employees less than minimum wage under
certain circumstances. Importation of a willfulness standard to
§214(c)(5)(A) proceedings is highly problematic, and it does not seem to me
that Congress intended to apply the willfulness standard of §255 to
petitions brought under §214(c)(5)(A).
A willfulness standard is inconsistent with the special relationship
between Petitioners and Respondent. Petitioners are not involved in
competitive employment. While they are "employees" in the sense that they
exchange their labor for compensation, they are simultaneously "clients" of
the Seneca County Board of Developmental Disabilities when at work. While
the immediate objective of the Petitioners may be to maximize their wages,
the objectives of Respondent are not limited to the labor-for-compensation
exchange. The overarching responsibility of Respondent is to provide
rehabilitation services to each Petitioner. In the discharge of its
overarching responsibility to provide services, Respondent willfully makes
many workplace choices which dramatically suppress the ability of the
Petitioners to earn wages. An example of such a choice-and of the tension
between being an "employee" and a "client"-was discussed during Dr.
Schroeder's testimony:
JUDGE BELL: Each of the Petitioners testified yesterday that some
portion of their workday, and I'm just going to say approximately an
hour of each workday, is spent in nonproductive work, a social
activity of some kind, an educational activity of some kind. Did you
discuss that or are you aware of the fact that that's part of their
daily schedule?
THE WITNESS: Yes. And that's-yes,
JUDGE BELL: And is that a hallmark of sheltered work?
THE WITNESS: It's not uncommon. It's-in other words, it's not
something that's necessarily designed in, that a shop must make
allowance or would be expected to make allowance for social or
recreational activities, but it's very common. And I mentioned earlier
the idea of no sense of urgency. I think that's part of that whole
mosaic in sheltered facilities.
JUDGE BELL: I don't want to put words in your mouth. Can you
extrapolate what you just said for me, please?
THE WITNESS: Oh, all right. I'll do my best. In other words, in an
ordinary work environment you don't have social activities as part of
the workday. And where I'm going with this is one of the concerns
about facilities is the mindset that the individuals who work there
are not employees but clients, that they're recipients of services.
And that's-that creates a very different set of expectations and a
very different work environment. If you listen to self-advocates who
have worked in segregated facilities, they talk about being treated
like children, having their decisions managed.
And I'm not-I don't-I'm not making any assertion about this
particular facility and I'm not trying to disparage it, but I'm saying
that the work environment is very often one of low expectations and
not intentionally, not deliberately, but when you hear about extended
break times, social activities, going on walks, these are not things
that you would ordinarily have in the competitive work environment and
it-so it sets a different climate, a different tone to the workday.135
Respondent makes rehabilitation decisions which may have an adverse
impact on the wages earned by Petitioners and their co-workers. These
decisions by Respondent are clearly willful (as defined by the Court in
McLaughlin). Application of the statute of limitations from §255 of the Act
to such decisions by the employer does not seem to be what Congress
intended in drafting the Act.
Finally, I reject application of the willfulness standard of §255
because I find it would impermissibly shift an important aspect of proving
the "propriety of the wage" from the Respondent to the Petitioners in
violation of 29 C.F.R. §525.22(d). In any case where a disabled employee
brings her concerns about the propriety of wages paid to the Secretary, the
regulations make it clear that "the burden of proof on all matters relating
to the propriety of a wage at issue shall rest with the employer."136
If the employee is asserting (as Petitioners do here) that wages
going back more than two years were not properly paid, then requiring such
employees to prove willfulness in order to evade the §255 statute of
limitations would shift to the employee a burden of proof related to "the
propriety of a wage at issue" in order to recover wages not properly paid
beyond the second year. Requiring the employee to assume this burden of
proof would not only violate the plain language of the regulation, but
would add an additional burden to a disabled employee seeking only to
vindicate his right to be paid a minimum wage. Many of those being paid
special minimum wages under a Section 14(c) Certificate would be expected
to have difficulty understanding how the wages paid to them for their labor
have been calculated,137 and I conclude that it would be inconsistent with
29 C.F.R. §522(d) to require a petitioner to have the burden to prove
willfulness simply in order to obtain a full recovery of the wages to which
they are entitled. I believe the burden always remains on the employer to
show the propriety of the wages paid in all years.
For all of the reasons above, I conclude that the statute of
limitations in §255 of the Act does not apply to this case. Therefore, I
will provide Petitioners with an award of underpaid wages for the period
December 28, 2012, to December 25, 2015, without requiring them to
demonstrate willfulness.
B. The Award of Back Pay to Petitioners is Appropriate
The controlling regulation states:
If the ALJ finds that the special minimum wage being paid or
which has been paid is not justified, the order shall specify the
lawful rate and the period of employment to which the rate is
applicable. In the absence of evidence sufficient to support the
conclusion that the proper wage should be less than the minimum wage,
the ALJ shall order that the minimum wage be paid.138
The plain language of the regulation requires me to make three
findings in order to calculate the damages to be awarded to each of the
Petitioners: (1) determine the amount of the hourly wage to be paid; and
(2) determine the period of time over which the hourly wage determined in
step (1) is to be paid; and (3) determine the applicable minimum wage for
all periods in question.
Consistent with the plain language of the regulation, I find each
Petitioner should have been paid the then-applicable minimum wage for each
hour of work performed at Respondent's Fostoria manufacturing facility
during the period December 28, 2012, to December 25, 2015. I have chosen to
award damages during this period because: (1) that is the only period for
which I have detailed wage information for each of the Petitioners, and (2)
I find Respondent failed to appropriately calculate the commensurate wage
paid to each Petitioner during that entire period.
I have determined that the minimum wage is to be paid during this
period because I do not have sufficient credible evidence by which I can
accurately calculate the proper wage to be paid. In order to make such a
calculation, I would, at a minimum, need credible evidence establishing the
rates of production for the Petitioners and the non-disabled standard
setters. For the reasons discussed in detail above, I do not believe I can
rely on the information in the record to establish an appropriate
commensurate wage for each of the Petitioners. The regulation instructs
that under such circumstances I am to determine that the minimum wage
applies.
I find that the Ohio minimum wage for the period December 28 to
December 31, 2012, was $7.70 per hour. The Ohio minimum wage throughout
2013 was $7.85 per hour. The Ohio minimum wage throughout 2014 was $7.95
per hour. The Ohio minimum wage throughout 2015 was $8.10 per hour.
I find that the Petitioners are entitled to the minimum wage for every
hour of covered employment. The minimum wage rate will therefore be applied
to the three years of wage data supplied by the Petitioners to calculate
their entitlement to remedial back pay.
The following table outlines the Petitioners' hourly damages by
year:139
|PETITIONER |YEAR |TOTAL HOURS |COMMENSURATE |MINIMUM |TOTAL BACK |
| | |WORKED |WAGE PAID |WAGE |PAY OWED140|
|RALPH "JOE" |2012 |4.5 |$2.02 |$7.70 |$25.56 |
|MAGERS | | | | | |
| |2013 |290 |$2.52 |$7.85 |$1,545.72 |
| |2014 |406.04 |$4.77 |$7.95 |$2,110.45 |
| | | |$2.77 | | |
| | | |$2.79 | | |
| |2015 |564 |$2.94 |$8.10 |$2,881.61 |
| | | |$3.00 | | |
| | | |$3.15 | | |
|TOTAL | | | | |$6,537.78 |
|PAMELA STEWARD |2012 |2.5 |$2.00 |$7.70 |$14.25 |
| |2013 |478 |$2.00 |$7.85 |$2,773.76 |
| | | |$2.05 | | |
| |2014 |303.5 |$3.20 |$7.95 |$1,438.22 |
| | | |$3.22 | | |
| |2015 |268.75 |$3.22 |$8.10 |$1,311.50 |
|TOTAL | | | | |$5,537.73 |
|MARK FELTON |2013 |173.75 |$2.49 |$7.85 |$921.01 |
| | | |$2.55 | | |
| |2014 |397.25 |$3.89 |$7.95 |$1,603.32 |
| | | |$3.93 | | |
| |2015 |421.5 |$3.93 |$8.10 |$1,682.84 |
| | | |$4.11 | | |
|TOTAL | | | | |$4,207.17 |
I find the Respondent owes Petitioner Magers $6,537.78 in hourly back
wages. Additionally, Exhibit A to Petitioners' Post-Hearing Brief
establishes that Petitioner Magers was paid less than minimum wages for
633.75 hours of piece work in 2013, resulting in an underpayment of
$1,445.29; 210.25 hours of piece work in 2014, resulting in an underpayment
of $655.94; and 54.25 hours of piece work in 2015, resulting in an
underpayment of $150.14. I find these piece work numbers to have been
correctly calculated, and I adopt them as part of my Decision. Accordingly,
in sum, Petitioner Magers is entitled to a total of $8,789.15 in back pay.
I find Respondent owes Petitioner Steward $5,537.73 in hourly back
wages. Additionally, Exhibit B to Petitioners' Post-Hearing Brief
establishes that Petitioner Steward was paid less than minimum wage for
11.5 hours of piece work in 2012, resulting in an underpayment of $30.10;
567.25 hours of piece work in 2013, resulting in an underpayment of
$1,661.39; 457 hours of piece work in 2014, resulting in an underpayment of
$1,445.56; and 251.75 hours of piece work in 2015, resulting in an
underpayment of $412.46. I find these piece work numbers to have been
correctly calculated, and I adopt them as part of my Decision. Accordingly,
in sum, Petitioner Steward is entitled to a total of $9,087.24 in back pay.
I find Respondent owes Petitioner Felton $4,207.17 in hourly back
wages. Additionally, Exhibit C to Petitioners' Post-Hearing Brief
establishes that Petitioner Felton was paid less than minimum wage for 9.5
hours of piece work in 2012, resulting in an underpayment of $16.98;
810.5 hours of piece work in 2013, resulting in an underpayment of
$3,022.04; 279 hours of piece work in 2014, resulting in an underpayment of
$1,302.11; and 156.75 hours of piece work in 2015, resulting in an
underpayment of $613.01. I find these piece work numbers to have been
correctly calculated, and I adopt them as part of my Decision. Accordingly,
in sum, Petitioner Felton is entitled to a total of $9,161.31 in back pay.
C. An Award of Liquidated Damages to Petitioners is Appropriate
Employers who violate the minimum wage provisions of the Act are
liable for not only the unpaid back wages, but also "an additional equal
amount as liquidated damages."141 These damages are considered
compensatory, not punitive.142 Double damages are the norm, single damages
are the exception.143
Petitioners do not request an award of liquidated damages.144
Respondent argues that the Petitioners "would not be entitled to liquidated
damages or attorney fees" because "this proceeding is brought pursuant to
29 U.S.C. §214(c), and 29 C.F.R. Part 525, not sections [29 U.S.C. 20]6 or
[20]7."145 I disagree with Respondent. I find that liquidated damages under
§216 are available for violations of §214 of the Act.146
An award of liquidated damages is not automatic.147 An Employer may
avoid liability for liquidated damages by establishing it acted
subjectively and objectively in good faith in its violation of the Act.148
In such cases, the Employer's burden is to establish that it had "an honest
intention to ascertain and follow the dictates of the Act" and that it had
"reasonable grounds for believing that [its] conduct complied with the
Act."149
In analyzing Respondent's conduct, I note that while the commensurate
wages paid to Petitioners were authorized by a series of §214(c)
Certificates, that fact alone is not dispositive. Each Certificate states
clearly: "The enclosed certificate does not constitute a statement of
compliance by the Department of Labor nor does it convey a good faith
defense to the employer should violations of the Fair Labor Standards Act .
. . occur."150 To the contrary, I find Respondent's repeated requests to
the Department of Labor for permission to pay Petitioners far less than
minimum wage imposes on Respondent a particularly high duty (approaching a
fiduciary duty) to make certain every aspect of the Petitioners' wages have
been accurately and fairly calculated.
I reach my conclusion about the existence of this high duty from the
following undisputed facts: (1) The regulations151 require the employer
possessing a Section 14(c) Certificate to make a series of "written
assurances" regarding how the employer will evaluate the compensation paid
to employees; (2) Petitioners have disabilities, including intellectual
disability. The ability of Petitioners to understand the calculation of the
"commensurate wages" being paid to them is very limited, and Petitioners
doubtless rely on Respondent to perform the wage calculations accurately;
(3) There is an extremely high potential for disabled workers to be
exploited in sheltered workshops. This potential becomes more concrete
where, as here, Petitioners are engaged in the manufacture of goods being
sold by a large corporation such as Roppe Industries.152 Roppe could hire
its own employees to replace the labor of Petitioners. If it chose to do
so, it would pay those non-disabled workers at least minimum wage.
Petitioners have been paid one-half or one-third of minimum wage for their
work on the Creform line.
A representative of Roppe occupies a seat on the Board of Directors
of Respondent. Roppe Industries is the landlord of Respondent. I find the
potential for Petitioners' exploitation to be high, and thus a high duty of
care should be imposed on Respondent to properly calculate their
commensurate wages.
One form of potential workplace exploitation comes from the
assignment of work in the Fostoria manufacturing facility. Mr. Biggert
testified:
Q. Okay. Do you have a sense or knowledge about how wages break
down for workers there on the line versus the-
A. It varies depending on the job; it varies depending on the
worker. There are some jobs that some workers really hit out of the
park, and there are other jobs where workers tend to struggle a little
bit more.
Q. So if you had a job where somebody's really hitting it out of
the park, as you say, say they're producing at a rate of $14 an hour
or $18 an hour as compared to the measure of productivity of the
standard setter, would you want to place that person on that job more
often?
A. Yes.
Q. Is there any reason you wouldn't place that person on the job
more often?
A. No. I mean, job availability sometimes is a bit of an issue. I
mean, we don't always need every job running at the same time.
Obviously, the assembly task at the end is the largest task we have.
Q. Um-hum.
A. But the only reason I can think that we wouldn't put somebody
who was performing well on a specific job would be job availability
and perhaps multiple people doing well on a job and wanting to make
sure that we're spreading that opportunity around as much as possible.
Q. So some folks might be doing very well on jobs and those same
folks might be doing very poorly on other jobs, is that correct?
A. That is possible, yes.
Q. Is there any consistency in some jobs, just everybody seems to
be getting particularly low wages or everybody seems to be getting
higher wages?
A. Not that I know of.
Q. Are you familiar with the productivity and wages that Mr.
Magers, Ms. Steward, and Mr. Felton have received?
A. Yes, to some degree.
Q. Okay. And they're-would you agree that all three of them at
times, for instance, on the auto pad print machine are earning well
above minimum wage, is that correct?
A. Yes.
Q. Is that unusual or is that consistent with other folks that
also operate that machine?
A. I don't know the answer to that question. While I do know the
productivity of the three Petitioners, part of that has been in prep
for what we've been doing right now. I'm sure we have many people who
do well on that machine, and I'm sure we have others who probably do
not.
Q. Do you have anybody who's been sort of reviewing the
productivity of-I mean, it sounds like you've got a lot of managers.
Let me back up. Is there anybody who is trying to select appropriate
people for appropriate tasks?
A. I think the staff do that on a day-to-day basis. You know, if
Laurie [Fretz] knows somebody's good at a particular task and that's a
task we need to get a lot of done that day, that person will go on
that task.153
I do not see any corroboration in the Petitioner's pay records that
they are frequently assigned jobs where they "knock it out of the park" in
terms of making minimum wage or more. Although an employer may possess a
Section 14(c) Certificate, I nonetheless conclude that, to the extent such
work is available, the employer is required to allocate work in such a
manner that as many employees may earn minimum wage as frequently as
possible. It does not appear to me that such an allocation of higher-paying
work has been made to the Petitioners here, and I find the failure of
Respondent to make work assignments so as to maximize wages subjects
Respondent to liquidated damages.
Respondent argues in its Post-Hearing Brief that its administration of
"timely wage surveys and hourly job samplings" evinces an effort to comply
with the mandates of the Act.154 However, as noted above, the artificiality
of those evaluations undermines their probative value as evidence of
attempted compliance. Similarly, I reject Respondent's argument that its
provision of "a discretionary increase on top of the commensurate wage . .
. provide[s] extra compensation to workers with disabilities . . . to which
they are not otherwise entitled" as evidence of good faith dealing with
Petitioners. The record supports that the Petitioners were not impaired for
the work performed, a fact which would have been discovered by the
Respondent had it engaged in an honest and meaningful evaluation of their
production. Therefore, its provision of a "discretionary increase," which
still amounts to less than the minimum wage, does not establish an honest
attempt to ascertain and follow the dictates of the Act. Notably, although
not categorized as such by the Petitioners, the Respondent's discretionary
payments could be equivocally interpreted as an attempt to disincentivize
administrative review of the special minimum wage.155
Respondent was required by the regulations to review the special
minimum wages being paid to Petitioners "at a minimum of once every six
months."156 Where, as here, there is such extraordinary variance in the
production rates of the standard setters, I conclude Respondent should not
have continued to rely on the same standard setter production data year
after year. I believe Respondent violated 29 C.F.R. §525.9(b)(1) in that
Respondent did not conduct an appropriate review of all of the data that
goes into the formula by which Petitioners' wages are established. On the
facts of this case-where the standard setter production data is so
inconsistent-Respondent's failure to review that data at least at 6-month
intervals subjects Respondent to liquidated damages.
I have set forth earlier in this decision the various ways in which
Petitioners wages were not appropriately calculated. I have set forth
numerous examples of the documentation of how Petitioners' wages were
calculated is inaccurate or missing. These acts and omissions violate the
heightened duty of care I have found applicable, and the repeated nature of
these acts and omissions subjects Respondent to liquidated damages.
Petitioners' wage data reveals other unexplained variances in the
wages paid by the Respondent. For example, Petitioner Felton was employed
as a "Production Helper" for a total of six hours during the pay period
ending March 7, 2014.157 It was agreed by Respondent and Petitioners that
Production Helpers earn minimum wage as a matter of course. However, Mr.
Felton earned minimum wage for only four of the six hours he worked as a
Production Helper during the period. Without explanation, the Respondent
paid Mr. Felton $0.03 per hour for a fifth hour of the same work and $0.25
per hour for a sixth hour of the same work.158 Similarly, Mr. Magers was
paid $15.48 per hour for 1.75 hours of work on the Creform line during the
September 6, 2013, pay period, and $2.52 per hour for 23.75 hours of work
on the Creform line during the September 20, 2013, pay period.159 These
unexplained events lead me to conclude that good faith has not been
demonstrated by Respondent.
I also conclude Respondent has attempted to interfere with the fair
adjudication of this matter by making large, unexplained, payments to each
of the Petitioners on the very eve of this matter going to hearing. The
"MISC ADJ" payments made by Respondent to Petitioners in late December 2015
of between $435 and $685 represent a substantial portion of the income made
by Petitioners during the 2015 calendar year. Questions about these
payments were raised in the very first hours of a 5-day hearing, yet
Respondent never offered any explanation for these payments. If one does
not carefully study the line-items on Petitioners' wage documents, these
"MISC ADJ" payments paint a much more benign picture of how Petitioners
have been compensated. In the absence of any explanation, I conclude these
payments were made immediately before the hearing to paint a misleadingly
rosy picture of Petitioners' 2015 wages.
Respondent has failed to establish that it had reasonable grounds for
believing that its conduct complied with the Act. I find that Respondent is
liable for liquidated damages in an amount equal to the amount of unpaid
wages due to the Petitioners. Accordingly, Respondent owes each petitioner
an additional amount equal to the total back pay outlined above.
D. An Award of Interest is Not Appropriate
Federal Circuit Courts of Appeal are in disagreement about whether
prevailing plaintiffs in actions under the Act are entitled to pre-judgment
and post-judgment interest. The Second, Third, Ninth, and Eleventh Circuit
Courts of Appeal have held that while not mandatory, if pre- judgment
interest is not awarded, a court must explain why the usual equities in
favor of such interest are not applicable.160
The majority of Federal Circuits, however, have held that if a
petitioner is awarded liquidated damages under §216(b), then pre-judgment
interest is unavailable. In Herman v. Harmelech,161 the court held that
because liquidated damages were awarded, it was unnecessary to address the
Secretary's request for pre-judgment interest. Citing to Uphoff v. Elegant
Bath, Ltd.162 the court held that recovery of liquidated damages and pre-
judgment interest would amount to double recovery.163
The weight of authority supportive of this proposition relies on U.S.
Supreme Court precedent from 1945. In Brooklyn Sav. Bank v. O'Neil,164 the
Court established:
Interest is not recoverable in judgments obtained under §16(b). As we
indicated in our decision in Overnight Motor Co. v. Missel, [316 U.S. 572
(1942)], §16(b) authorizes the recovery of liquidated damages as
compensation for delay in payment of sums due under the Act. Since Congress
has seen fit to fix the sums recoverable for delay, it is inconsistent with
Congressional intent to grant recovery of interest on such sums in view of
the fact that interest is customarily allowed as compensation for delay in
payment. To allow an employee to recover the basic statutory wage and
liquidated damages, with interest, would have the effect of giving an
employee double compensation for damages arising from delay in the payment
of basic minimum wages. Allowance of interest on minimum wages and
liquidated damages recoverable under §16(b) tends to produce the
undesirable result of allowing interest on interest. Congress by
enumerating the sums recoverable in an action under §16(b) meant to
preclude recovery of interest on minimum wages and liquidated damages.165
I find that an award of pre-judgment interest on the back pay owed
the Petitioners would constitute double recovery since liquidated damages
have been awarded.
However, case law suggests that the Petitioners may also be entitled
to post-judgment interest.166 Under 28 U.S.C. §1961, post-judgment interest
may be compounded on civil monetary damages received in district court, and
in other express circumstances. However, §1961(c)(4) specifically disclaims
that "[t]his section shall not be construed to affect the interest on any
judgment of any court not specified in this section." Still, that statute
has been interpreted, albeit infrequently, to allow post-judgment interest
on monetary damages awarded in an administrative adjudication. See PGB
International LLC Co. v. Bayche Companies, Inc.167
I find that the imposition of post-judgment interest is not warranted
in this matter. As outlined below, in making its curative back pay and
liquidated damages payments to Petitioners, the Respondent will be required
to consider the extent to which lump sum payment might affect Petitioners'
eligibility to receive certain benefits and services crucial to the quality
of their lives. To the extent possible, Respondent is being directed to
work cooperatively with Petitioners to spread the payment of damages over a
sufficient number of months to ensure Petitioners retain eligibility to
necessary support programs. Because Respondent is being ordered to
potentially delay payment of the total sum due to Petitioners, subjecting
that sum to post-judgment interest would disincentivize meaningful
compliance with that directive. Accordingly, I find that the unique
equities of this case do not support an award of post-judgment interest.
E. An Award of Attorneys' Fees and Costs May be Appropriate
The Act authorizes the reviewing court to award the petitioner "a
reasonable attorney's fee" and "costs of the action."168 On January 21,
2016, the parties submitted a Stipulated Withdrawal of the Petitioners'
Motion for Sanctions, which states that each party has agreed to pay its
own costs and attorney's fees. If that Stipulation was intended only as a
waiver of attorney fees related to the Motion for Sanctions itself, then
counsel for Petitioners may submit an application for attorney fees and
costs within 14 days of the issuance of this Decision and Order. Respondent
shall have 10 days to oppose any request for the award of attorney fees.
XII. ORDER
1. Effective immediately, Petitioners Ralph ("Joe") Magers, Pamela
Steward, and Mark Felton shall each be paid minimum wage for each hour
worked at Respondent's Fostoria manufacturing facility;
2. Respondent shall pay Petitioner Ralph ("Joe") Magers the sum of
$17,578.30 ($8,789.15 in unpaid wages and $8,789.15 in liquidated damages);
3. Respondent shall pay Petitioner Pamela Steward the sum of $18,174.48
($9,087.24 in unpaid wages and $9,087.24 in liquidated damages);
4. Respondent shall pay Petitioner Mark Felton the sum of $18,322.62
($9,161.31 in unpaid wages and $9,161.31 in liquidated damages); and
5. Upon receipt of this Decision and Order, and before making any
payments of back wages and liquidated damages to the Petitioners,
Respondent shall contact counsel for Petitioners. Counsel shall discuss
whether the payment of the back wages and liquidated damages over a period
of time will allow the Petitioners to retain eligibility for benefits
Petitioners currently receive. Respondent shall pay the back wages and
liquidated damages over time if counsel for Petitioners so requests.
Otherwise those sums shall be payable within 30 days after the issuance of
this Decision and Order;
6. As outlined above, Petitioners may seek the award of attorney fees
and costs.
SO ORDERED.
Steven D. Bell Administrative Law Judge
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Recipes
Last month we took a trip to the past to revisit some of the
delicious recipes that have been hiding in the Monitor archives. In fact,
we found so many delicious recipes that we're going to keep the retro
recipes rocking.
BROCCOLI SALAD
by Donna Biro
This recipe first appeared in the April 1994 Monitor. Here's how Donna
was introduced at the time: Donna Biro and her daughter Laura first found
the Federation at the 1992 NFB of Michigan convention. Since that time all
of the Biro family have been active members of the affiliate. Laura was a
1993 winner of both national and state NFB scholarships.
Ingredients:
1 bunch broccoli, chopped
1 medium purple onion, chopped
5 slices bacon, fried crisp and crumbled
1/2 cup sunflower seeds
1/2 cup raisins
1/2 cup shredded cheddar cheese
Dressing:
3/4 cup mayonnaise
1/4 cup sugar
2 tablespoons dark vinegar
Method: Toss all non-dressing ingredients. Mix dressing ingredients
well and combine with broccoli mixture.
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CHICKEN CHOW MEIN
by Deb Nefler
This recipe first appeared in the April 2004 Monitor. Deb Nefler was
secretary of the Falls Chapter of the NFB of South Dakota at the time.
Ingredients:
Vegetable cooking spray
1 1/2 cups chopped onion
1 cup sliced celery
1/2 cup chopped green pepper
2 cups cooked chicken, chopped
2-to-3 cups frozen Chinese vegetables
1 14-ounce can sliced mushrooms, drained
1/4 teaspoon ground cumin
1 tablespoon chicken-flavored bouillon granules
1 tablespoon cornstarch
3 cups water
Method: Coat a large skillet with cooking spray and place over medium
heat till hot. Add onion, celery, and green pepper and cook, stirring
constantly, three minutes or till vegetables are tender-crisp. Stir in
chicken, Chinese vegetables, mushrooms, and cumin and cook over medium heat
for one minute. Dissolve bouillon granules and cornstarch in cold water.
Add to mixture in pan and continue to cook over medium heat, stirring
constantly till thickened and bubbly. Note: Chicken Chow Mein may be served
over Chow Mein noodles or hot cooked rice. Serves seven with one-cup
servings.
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MACARONI PIE
by David J. DeNotaris
This recipe first appeared in the Monitor in February 1995 with this
introduction: David DeNotaris is currently Job Opportunities for the Blind
coordinator for New Jersey. He is also a world champion power lifter.
Ingredients:
1 1/2 pounds ricotta cheese?
Black pepper to taste?
Garlic to taste?
7 eggs?
Salt to taste?
1 pound mozzarella?
Italian cheese, grated to taste?
1/2 pound thin spaghetti (broken in half)
Method: Cook spaghetti according to package directions and drain in
colander. In a large bowl beat eggs and then add ricotta and Italian
cheese. Add salt, pepper, and garlic to taste. Cut mozzarella into small
pieces and add to mixture. Stir in spaghetti and pour into greased baking
pans. Bake at 350 degrees from fifty minutes to one hour, or until top is
lightly browned and firm to the touch.
----------
PALATSCHINKE
by Fred Wurtzel
This recipe first appeared in the May 2002 Monitor with this
introduction: Fred Wurtzel is president of the NFB of Michigan. He reports
that this is a simple family recipe.
Ingredients:
1 cup flour
2 eggs
1 cup milk
1 teaspoon vanilla
Method: You can vary this to accommodate the number to be served. Mix
ingredients together and then fry. These are like thin crepes. For a treat
we cook them in butter. Some like to roll them with cinnamon and sugar
inside. Others like cottage cheese and jam-whatever suits your fancy.
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O'HENRY BARS?
by Linda Mentink
This recipe originally appeared in the October 1997 Monitor. At the
time Linda lived in Wisconsin and served as the president of the NFB Music
Division. She is a singer with several albums to her credit.
Ingredients:
1 cup melted butter or margarine?
1 cup granulated sugar?
1 cup brown sugar?
4 cups oatmeal
Method: Mix all ingredients well and press into a lightly-greased
cookie sheet with sides. (Mine measures about 10 by 14 inches.) Bake at 350
degrees for ten to twelve minutes. Cool to room temperature. Pour over this
a topping made of one cup crunchy peanut butter and one cup chocolate chips
melted and stirred together well. Spread topping and chill bars. Cut before
serving.
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IOWA APPLESAUCE CAKE?
by Terry E. Branstad
This recipe first appeared in the June 1993 Monitor. Terry Branstad
was the governor of Iowa at the time.
Ingredients:
1/2 cup butter, margarine, or shortening?
3/4 cup sugar?
3/4 cup packed brown sugar?
1 egg?
2 cups all-purpose flour?
2 teaspoons baking powder?
1 teaspoon baking soda?
1 teaspoon ground cloves?
1-1/2 cups applesauce?
1 cup raisins?
1/2 cup chopped pecans or walnuts
Method: In a large mixing bowl beat the butter for thirty seconds. Add
the sugars and egg, and beat until combined. Stir together the flour,
baking powder, baking soda, and spices. Add flour mixture alternately with
applesauce to butter mixture. Stir in raisins and nuts. Pour batter into a
greased 13-by-9-by-2-inch baking pan; spread evenly. Bake in a 350-degree
oven for thirty to thirty-five minutes or until a toothpick inserted in
center comes out clean. Cool in pan on wire rack; serves twelve.
Cream Cheese Frosting:
Ingredients:
2 3-ounce packages cream cheese, softened?
1/2 cup butter, softened?
2 cups powdered sugar, sifted
Method: Beat together cream cheese and butter. Then beat in 2-1/2 to 2-
3/4 cups sifted powdered sugar to make a spreadable frosting. A butter
frosting could be substituted for the cream cheese one.
For a decorative finish, set a doily lightly on the frosted cake and
sprinkle lightly with a mixture of cinnamon and nutmeg. Then carefully
remove the doily.
----------
Monitor Miniatures
News from the Federation Family
Louisiana Center for the Blind Buddy and STEP Programs 2016:
Since 1989 the Louisiana Center for the Blind has offered an
innovative summer program for blind children in grades four through eight.
This summer, the Buddy Program promises to be full of learning
opportunities, new friendships, and fun-filled activities.
Many blind children have misconceptions about their blindness due to
the lack of positive blind role models and to the negative stereotypes
about blindness in society. Unlike other summer programs for blind
children, the Buddy Program is directed and staffed by competent blind
adults. Classes in cane travel are taught to instill independence and self-
confidence. The knowledge of Braille enables the blind child to compete on
terms of equality with sighted peers in the classroom and provides a solid
background in spelling and other grammatical skills. Computer literacy
classes expose a blind child to available adaptive equipment. Classes in
daily living skills promote equal participation in household duties such as
cooking, shopping, and cleaning. In addition to learning valuable
alternative techniques of blindness, children will enjoy participating in a
wide variety of exciting activities such as swimming, camping, bowling,
roller skating, and field trips.
The combination of hard work and fun activities will provide a
rewarding experience that children will cherish. Involvement in the Buddy
Program helps blind children realize that it is not blindness that holds
them back. Rather, it is the negative attitudes and misconceptions about
blindness that may prevent blind children from reaching their potential. At
the close of the program, parents are required to attend a Parents'
Weekend. This weekend will allow them to interact with other parents of
blind children and to learn what their children have discovered about their
blindness and themselves. Friendship, training, fun, growth, and
interaction between blind children and positive blind role models is how
the Louisiana Center for the Blind is "changing what it means to be blind."
The Louisiana Center for the Blind will sponsor one session of the
Buddy Program in 2016. Program dates are July 17-August 6.
Perhaps we will have the opportunity to work with your child this
summer. We know it will be a memorable experience for both you and them.
All interested families should visit <www.louisianacenter.org> for more
details and to apply. Please also feel free to contact our director of
youth services, Eric Guillory before April 8. Please email Eric at
<eguillory at louisianacenter.org> or call (800) 234-4166.
Due to limited space, we cannot guarantee that every applicant will
be granted enrollment. Please note that the fee for students not from
Louisiana is $1,000, which is all-inclusive save for transportation to and
from the program. The fee for Louisiana students is $500.
2016 Summer Training and Employment Project (STEP) Program:
Since 1985 the Louisiana Center for the Blind has been changing what
it means to be blind for adults from across America. In 1990 a program was
created to address the needs of blind high school students. The Summer
Training and Employment Project (STEP) Program is designed to introduce
blind teenagers to positive blind role models and to provide participants
with summer work experience.
The eight-week summer program will consist of two components. During
the first part of the program, competent blind counselors will instruct the
students in the alternative techniques of blindness. Classes in Braille,
cane travel, computer literacy, and daily living skills will be taught by
qualified blind instructors. In addition, seminars will be conducted in the
areas of job readiness, job interviewing skills, résumé writing, and job
responsibilities. The second part of the program will continue all aspects
of training and expand to include an employment dimension. Students will
have the opportunity to work fifteen to twenty hours a week at a local
business for which they will receive the federal minimum wage. The staff
will attempt to meet the job interests of the students. Instructors from
the Louisiana Center for the Blind will be available to provide on-the-job
assistance as needed.
The combination of work experience and blindness-related skills-along
with fun-filled activities such as cookouts, swimming, and various other
outings-will foster self-confidence and independence in young blind
teenagers. During the week of June 30 through July 5, students will attend
the national convention of the National Federation of the Blind in Orlando,
Florida. This exciting conference will allow them to meet thousands of
competent blind people from across the country. The students will also have
the chance to participate in a wide variety of informative seminars. At the
close of the program, parents will be required to attend a Parents'
Weekend, which will enable them to discover how much their children have
learned throughout the summer. The STEP program is designed to provide
invaluable work experience, friendships, opportunities for personal growth,
and cherished memories.
Training will begin June 12 and conclude August 6. Please visit
<www.louisianacenter.org> to learn about more program specifics and to
complete an application.
Due to limited space, we cannot guarantee that every applicant will
be granted enrollment, and applicants must have an open case with their
state's vocational rehabilitation agency or other funding entity to cover
program costs.
Questions? Please call our director of youth services, Eric Guillory
at (800) 234-4166 or email him at <eguillory at louisianacenter.org>.
"Together, we are changing what it means to be blind." Check out STEP and
find out how.
Braille Book Fair 2016:
Calling all Braille readers, teachers, and parents! It's that time
again to sort through all those boxes of Braille books and donate those
gently used but no longer needed Braille books to the 2016 Braille Book
Fair sponsored by the National Organization of Parents of Blind Children.
Our primary goal is to get more Braille books into the hands of
children, youth, and beginning adult readers-so here's what we need most:
. print/Braille storybooks (aka Twin Vision®)
. books in good condition
. leisure reading (fiction or nonfiction) books
. cookbooks and poetry
Children are so hungry for their own Braille books that every year,
despite generous donations of books, most of our books for young children
are gone in less than an hour. So begin your search through the boxes in
your basement and spare room, and get those books shipped to: 2016 Braille
Book Fair, National Federation of the Blind, 200 East Wells Street at
Jernigan Place, Baltimore, MD 21230.
Please note that you are shipping the books Free Matter for the
Blind; you do not need to pay to ship Braille items. Handwrite, stamp, or
affix a label to the upper right-hand corner of the box stating: FREE
MATTER FOR THE BLIND. Take your package(s) to your local post office.
Elected:
The NFB Greater Seattle chapter held elections on Saturday, January
16, 2016. The following officers were elected: president, Arielle
Silverman; first vice president, Mike Mello; second vice president, Jacob
Struiksma; secretary, Tanna Dieken; treasurer, Daniel Heathman; and board
members, Ellen Farber and Mary Helen Scheiber.
Elected:
At the January meeting of the Capital Chapter of the NFB of New
Jersey, the following were elected: president, Mary Jo Partyka; vice
president, Ben Constantini; secretary, David Mostello; treasurer, John
Lipton; and board members, Sue Constantini and Cindy Lipton.
Florida Affiliate Holding Raffle:
The Florida affiliate has started the 2016 fundraising campaign, and
this is something that you do not want to miss out on.
The raffle for the Shingle Creek is well on its way, and the Florida
affiliate welcomes your participation. The raffle is a two-night stay at
Shingle Creek, plus $50 per diem, or $300 cash (which is the value of the
package.) The tickets are one for $5.00 or three for $10.00. This raffle
will run through March 31. The winner will be contacted by telephone the
day of the drawing (March 31 at 7:30 p.m.). Also, the video recording will
be posted on YouTube. Once again the Florida affiliate thanks you for
supporting the work of the Federation.
You can pay by sending a check or money order to the NFB of Florida
c/o Jorge Hernandez, 201 NW 56th Ct., Miami, FL 33126. You may also pay by
PayPal by clicking on the link <PayPal.Me/nfbfl>.
If you have any questions, please feel free to contact Jorge
Hernandez, fundraising chair, at <jeh1065 at comcast.net> or by phone at (305)
877-2311.
Looking for Alumni of Residential Schools for the Blind:
My name is Ken Lawrence, and a couple of years ago I got inspired by
an attempt to start a division of the NFB. My enthusiasm was renewed by the
Seventy-Five Days of Action, but as I tried to find old friends who
attended various schools for the blind and other residential schools, I
kept hitting the same issue: the loss of the accomplishments achieved in
the schools for the blind by students my age. These accomplishments range
from athletics to performances in plays and recitals to participation in
programs like vending stands. When the residential schools for the blind
became institutions for multiple handicaps, some of the facilities were
repurposed. For example, I attended the Oakhill School for the Blind in
Hartford from 1974 to 1979. Six months after I left Oakhill, the auditorium
where I played Mayor Shinn in The Music Man was turned into a playroom for
younger kids. The swimming pool where we won Eastern Athletic Association
of the Blind Championships is also gone. The acorn shop which I helped
launch is gone also. Even finding alumni of my era is very difficult.
I'm asking readers of the Braille Monitor for help. I'd like alumni
of residential schools for the blind to write down their memories of their
days at school, of the awards they won, the competitions, the activities
they participated in, and the wonderful memories they made there. I would
like to see these memories preserved as the schools themselves change and
evolve into much different institutions than the ones we attended and
remember. Send your written memories to the Monitor at <gwunder at nfb.org>.
In Brief
Notices and information in this section may be of interest to Monitor
readers. We are not responsible for the accuracy of the information; we
have edited only for space and clarity.
Download Accessible Tax Information:
Get ready for the tax season! Hundreds of the latest accessible
federal tax forms and publications are available for download from the IRS
Accessibility Web page at <https://www.irs.gov/Forms-&-Pubs/Accessible-
Products>. You can choose from large-print, text, accessible PDFs, e-
Braille, or HTML formats that are compatible with screen readers and
refreshable Braille displays. The IRS also provides American Sign Language
videos with the latest tax information at <https://www.irs.gov/uac/Videos-
American-Sign-Language-(ASL)>.
IRS Tax Return Preparation Help is Available:
Tax assistance is available to people with a physical disability or
are age sixty or older through the IRS Volunteer Income Tax Assistance
(VITA) or Tax Counseling for the Elderly (TCE) programs. You can find a
nearby VITA or TCE location by using the available locator tools at
<https://www.irs.gov/Individuals/Free-Tax-Return-Preparation-for-You-by-
Volunteers> or by calling (800) 906-9887. Publication 907, Tax Highlights
for Persons with Disabilities, explains the tax implications of certain
disability benefits and other issues and is available at <www.IRS.gov>.
Information about NASA Internships Available:
Science, Technology, Engineering, and Mathematics (STEM) initiatives
have been a focus of the Federation in the last few years, and we have
enjoyed a long and fruitful relationship with NASA. Their interest in
seeking and growing qualified blind employees is unquestionable. If you
would like to subscribe to an announcement-only list about NASA internships
for persons with disabilities, please send an email to <nasainterns-
request at freelists.org> with 'subscribe' in the Subject field, or by
visiting the list page at <http://www.freelists.org/list/nasainterns>. This
is an internship program, not an employment program. For NASA jobs, please
go to <http://www.usajobs.gov>.
Registration for 2016 No Barriers Summit Now Open:
From June 23-26 No Barriers will host its annual signature event, the
Summit, this year at Copper Mountain in Colorado. Thousands of people of
all abilities from across the USA and around the world will embark on
exhilarating adventures in over fifty adaptive activities in sports,
adventure, arts, and education; be motivated by phenomenal speakers
and celebrities; and be inspired by some of the most creative and
innovative technologies, products, and services helping to transform lives.
Your four-day Summit Pass includes:
. All meals (except for the BBQ on Friday night)
. Invitations to Opening and Closing Ceremonies presenting famous
speakers and celebrities.
. Access to No Barriers University showcasing genius experts.
. Entry to Innovation Village, a trade show featuring the most
innovative products and services-register now!
. Admission to the Film Festival and Music Concert.
. Fun at Copper: zip lines, bumper boats, go-karts, mini golf,
fireworks spectacular, and more.
For more information check out our webpage at:
<http://www.nobarriersusa.org/summit/>.
Spoken Word Ministries Debuts New Christian Resource Library:
Spoken Word Ministries Inc., serving blind people since 1988,
announces the national launch of BrailleAudio, an internet-based Christian
resource library. BrailleAudio currently contains books in a DAISY format
similar to the format used by the National Library Service for the Blind
and Physically Handicapped (NLS). BrailleAudio makes books available for
download by its members, or the member can choose to participate in its
read-by-mail program if downloading is not an option. Any visually impaired
or blind person living in the United States or a patron of NLS is invited
to apply to join BrailleAudio. To apply for a free membership to
BrailleAudio, visit <www.brailleaudio.org> and click on the join link. You
may also apply by telephone by calling (919) 635-1000. We encourage family
members, friends, and professionals to assist those who request assistance
to help them apply for BrailleAudio membership. Please help only at the
request of the prospective member.
We thank the Lord for enabling us to launch BrailleAudio and invite
you to visit <www.brailleaudio.org>, where blind people read.
Monitor Mart
The notices in this section have been edited for clarity, but we can
pass along only the information we were given. We are not responsible for
the accuracy of the statements made or the quality of the products for
sale.
Wanted:
I want to purchase a Parrot Voice Mate. I am willing to pay premium
price. Please contact Ray Hicks at (269) 429-8676.
HumanWare Apex for Sale:
I have a BrailleNote Apex for sale. The unit includes a Braille
keyboard, a thirty-two cell Braille display, up-to-date software, an
Executive Products case, the Oxford Dictionary and Thesauras, the Sendero
GPS, and the AC adapter. I am asking $4,000 or best offer. I will accept
PayPal or checks for payment, and I will pay for shipping.
Contact Robert Stigile at (818) 381-9568 or by email at
<rnstechnology at gmail.com>.
----------
NFB Pledge
I pledge to participate actively in the efforts of the National
Federation of the Blind to achieve equality, opportunity, and security for
the blind; to support the policies and programs of the Federation; and to
abide by its constitution.
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