WHD Bulletin Lays Out WIOA Subminimum Wage Requirements and Enforcement Strategy

 It describes the new obligations placed by WIOA on an employer who holds a 14(c) certificate. WIOA added a new section 511 to the Rehabilitation Act that limits the ability of certificate holders to pay a subminimum wage to workers with disabilities under section 14(c).

 The bulletin points out that “WIOA establishes two new requirements that must be met in order for a worker with a disability to be paid a subminimum wage: 1) Individuals with disabilities 24 and younger must be provided with various services designed to improve their access to competitive integrated employment, including transition services, vocational rehabilitation and career counseling services, before they are employed at a subminimum wage; and 2) All workers must be regularly provided with career counseling and information about training opportunities as a condition of payment of a subminimum wage.” The employer is “required to verify completion of these requirements and review any relevant documentation provided by the employee,” according to the bulletin.

 To enforce these new provisions, Wage and Hour Investigators will “request birthdates and start dates of all employees being paid a subminimum wage under section 14(c) who are hired on or after July 22, 2016.” If any of these employees paid a subminimum wage are 24 or younger, documentation must be provided by the employer that each youth has completed all three requirements prior to being paid a subminimum wage. Employers will also be asked to “provide documentation or other evidence that all employees, regardless of age, have been provided with the required career counseling and with information about local self-advocacy, selfdetermination, and peer mentoring training opportunities every six months for the first year of employment and annually thereafter.”

 Section 511 requires payment of the minimum wage by employers with 14(c) certificates who have not met the requirements of that section for each employee who would otherwise be eligible for payment at a subminimum wage. If an employer “fails to comply with any of the section 511 criteria for payment of a subminimum wage,” the bulletin makes clear that WHD “may assess back pay and any other appropriate relief in the same manner as [it] would against any other employer who failed to pay the minimum wage as required by the FLSA.” WHD is authorized “to seek back pay at the full minimum wage rate for each individual for whom the mandatory services and/or documentation is not provided or does not meet established criteria.”