HOUSE MEMORIAL 16

53rd legislature - STATE OF NEW MEXICO - second session, 2018

INTRODUCED BY

            Joanne J. Ferrary and Angelica Rubio and Elizabeth "Liz" Thomson

A MEMORIAL

REQUESTING THE DEVELOPMENTAL DISABILITIES PLANNING COUNCIL TO CONVENE A TASK FORCE TO MAKE RECOMMENDATIONS THAT FACILITATE TRANSITION TO COMPLIANCE WITH MINIMUM WAGE REQUIREMENTS FOR EMPLOYEES WITH DISABILITIES AND THAT IDENTIFY ANY DISABILITY POPULATION GROUP THAT SHOULD BE EXEMPTED FROM A MINIMUM WAGE REQUIREMENT.

     WHEREAS, pursuant to the provisions of 29 U.S.C. 214(c), commonly referred to as 14(c), certain nonprofit agencies in New Mexico have obtained federal certificates allowing the agencies to pay some of their employees with significant disabilities less than a minimum wage, based on an individualized determination that the employee is less productive than employees without disabilities; and

     WHEREAS, some provider agencies, family members and others believe that such subminimum wage arrangements are the only practical employment options for individuals with certain levels of disability, while other agencies, organizations and individuals believe that all employees with disabilities should be paid at least the applicable minimum wage for gainful work performed; and

     WHEREAS, there are currently only three nonprofit agencies in New Mexico that continue to use these federal certificates; and

     WHEREAS, the department of health, which operates New Mexico's developmental disabilities service programs, has adopted an employment first policy, which provides that publicly supported disability service provider agencies should make every effort to identify or develop employment opportunities that involve inclusive settings and wages at or above a minimum wage for all persons with disabilities who want to work; and

     WHEREAS, the federal Workforce Innovation and Opportunity Act restricts the transition of graduating students with disabilities from schools to subminimum wage arrangements and requires independent career counseling and information about alternative employment or training opportunities for older adults with disabilities who are currently earning less than a minimum wage; and

     WHEREAS, recent guidance from the United States department of labor clarifies that federal subminimum wage certificates do not exempt employers from minimum wage requirements if state law prohibits subminimum wages or does not exempt employers of persons with disabilities from minimum wage requirements; and

     WHEREAS, the workforce solutions department has not granted authority to any employer in New Mexico to pay less than a minimum wage based on the disabilities of its employees; and

     WHEREAS, the developmental disabilities planning council is charged by law, among other duties, to act as a planning and coordinating body for persons with developmental disabilities;

     NOW, THEREFORE, BE IT RESOLVED BY THE HOUSE OF REPRESENTATIVES OF THE STATE OF NEW MEXICO that the developmental disabilities planning council be requested to convene a task force to review the issues associated with minimum wages for all employees with disabilities; and

     BE IT FURTHER RESOLVED that, besides the developmental disabilities planning council, the task force include a representative from the national federation of the blind of New Mexico, a representative from a nonprofit agency currently using a federal 14(c) certificate, a representative from disability rights New Mexico, one or more individuals with disabilities who are currently or were previously paid less than a minimum wage, or the family member or guardian of such individuals, a representative from a nonprofit agency employing persons with disabilities not using a federal 14(c) certificate, a representative with disabilities who has never worked for subminimum wage, representatives from other developmental disabilities organizations and others with interest and expertise in the employment of persons with disabilities; and

     BE IT FURTHER RESOLVED that the task force review state and federal laws, regulations and policies with respect to the provision of minimum or subminimum wages for persons with disabilities; review relevant information from other states; identify data that would be important to track and review with respect to implementation of a requirement that all employees with disabilities be paid at least the applicable minimum wage; and consider how best to meet the employment needs of persons with severe disabilities; and

     BE IT FURTHER RESOLVED that the task force make recommendations that would facilitate the transition to full compliance with minimum wage requirements and mitigate potential negative impacts of such requirements, which may include proposed amendments to state law that would provide exceptions to minimum wage requirements for certain categories of people with disabilities and whether any such exceptions should be time-limited or not; and

     BE IT FURTHER RESOLVED that the task force present its report and recommendations to the legislative health and human services committee by October 1, 2018; and

     BE IT FURTHER RESOLVED that copies of this memorial be transmitted to the secretary of health, the secretary of human services, the secretary of children, youth and families, the secretary of aging and long-term services, the secretary of public education, the secretary of higher education, the president of the board of directors of disability rights New Mexico and the president of the national federation of the blind of New Mexico.

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