Employees with disabilities deserve fair pay

Legislation across the country allows employers to pay disabled workers less than minimum wage

Stuart Rudner
By Stuart Rudner

On June 3 of this year, I wrote about Hiring a Worker with a Disability. I discussed some of the benefits and reasons to do so, as well as the risks and complications. Recently, there have been news reports out of the United States about section 14 (c) of the Fair Labor Standards Act, which allows employers to obtain special minimum wage certificates from the Department of Labor. The certificates give employers the right to pay disabled workers according to their abilities, with no minimum wage.

The notion that employers could pay disabled workers pennies per hour worked is shocking. Many Canadians proudly commented that such a thing could never happen here. However, the reality is that some Canadian provinces have similar legislation. As Todd Humber pointed out two years ago in his Editor's Blog, Alberta, Saskatchewan and Manitoba all allow employers to pay workers with disabilities less than minimum wage. As he explained:

"Manitoba’s law states that 'If the director is satisfied that a proposed arrangement between an employer and an employee who has a mental or physical disability is satisfactory for both of them,' then a permit can be issued.

In Alberta, the language is similar and states an 'employee who has a disability' can be paid a lower wage. Ditto for Saskatchewan, which states 'any person who is handicapped' can be paid below the minimum wage."

It is interesting that the legislation seems to suggest that such an arrangement is acceptable if all parties agree. Of course, employment standards legislation takes a completely different approach: even if an employee agrees, employers cannot avoid the minimum obligations for, among other things, overtime, breaks or vacation. Why would our governments apply a different standard to allow disabled workers to be paid less than minimum wage?

The fact that this legislation exists is shocking. What is perhaps even more shocking is that there has been little attention paid to it and little pressure for change. The notion that someone’s pay should be based upon the fact that they have a disability is offensive and completely contrary to the human rights legislation in place across the country which prohibits discrimination on the basis of disability.

What is also offensive is that while other provinces, such as Ontario, do not legislatively condone such discrimination, anecdotal evidence suggests that there are employers that refuse to pay disabled individuals in accordance with minimum wage requirements.

While some may suggest that this type of “exemption” allows disabled people to find work when they would not otherwise be able to, that is hardly a justification. Employers should be penalized when they discriminate against those with disabilities or refuse to consider hiring them based on stereotypes and false assumptions. Rather than allow employers to assume that a disabled worker is worth less, employers should be encouraged to work with those employees in order to assist them in maximizing their productivity. As I indicated in my June 3 blog post, hiring a disabled worker should not be an act of charity, but a good business decision.

Stuart Rudner is an HR lawyer and a founding partner of Rudner MacDonald LLP, a Toronto-based firm specializing in Canadian employment law. He provides clients with strategic advice regarding all aspects of the employment relationship, and represents them before courts, mediators and tribunals. He is author of You’re Fired: Just Cause for Dismissal in Canada, published by Carswell. He can be reached at srudner@rudnermacdonald.com. You can also follow him on Twitter @CanadianHRLaw and join his Canadian HR Law Group on LinkedIn. 

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