The Ticktin Minute January 8, 2018 – Can an Employer Pay an Employee Less if they have a Disability?

Can an Employer Pay an Employee Less if they have a Disability?

The short answer to this question is that an employer cannot pay a disabled employee less than an employee without a disability, with certain very specific exceptions. Salary and benefits should be based on the position and quality of work such employee produces. The Americans with Disabilities Act (“ADA”) protects individuals who have disabilities, but are able to work with reasonable accommodations. However, such individuals must be able to function at said job with or without the accommodation. The functions or requirements of a job are typically outlined in the written job descriptions, which every employer should have. The Americans with Disabilities Act, among other laws (including the Fair Labor Standards Act), protect individuals from being discriminated against because of a disability.

Section 14(c) of the Fair Labor Standards Act provides a very specific exception where an employer can pay a disabled employee less than the federal minimum wage. Such exception is only allowed in the case where such employee’s disability reduces his or her ability to do the work. This, of course, is only legal if the employer has a Certificate from the Department of Labor allowing the employer to pay less and certain criteria (outlined below) is met.

First, as described above, the employee’s disability must reduce his or her ability to complete the functions of the employment. Second, the employer must state to each worker (in person and in writing) that the disabled employee will earn less than the minimum wage. Employers, in their discretion, may also provide the disabled employee with a copy of the Certificate obtained by the Department of Labor. Third, employers must also tell each of the worker’s parent(s) or legal guardian(s), whenever it is appropriate.

If you or someone you know has a potential employment law claim and/or questions regarding your rights, contact the attorneys of The Ticktin Law Group for a complimentary consultation.