Paying Disabled Workers Less than Minimum Wage: How is this Still a Thing?

There is a great weekly segment on HBO’s Last Week Tonight  called “How is this still a thing?”, where host John Oliver attacks irrelevant norms such as Daylight Savings Time or social prejudice such as Holllywood whitewashing. Well, I have a suggestion to Mr. Oliver for an upcoming segment: laws permitting the payment of wages to disabled workers that are below the minimum wage. In 2016, how the hell is this still a thing?

I was very surprised this week when I stumbled across an article describing how the Alberta government will be “reviewing” language in its Employment Standards Code allowing employers to seek a permit to pay disabled workers less than the minimum wage. Apparently, similar laws were also in place in Saskatchewan and Manitoba until they were repealed, leaving Alberta the last province standing.

Employment of persons with disabilities

67(1) If the Director is satisfied that a proposed employment arrangement between an employer and a prospective employee who has a disability is satisfactory for both of them in all the circumstances, the Director may issue to the employer a permit authorizing

(a) the employer to pay the prospective employee a wage less than the minimum wage prescribed by the regulations, and

(b) the prospective employee to receive less than the minimum wage.

Now, this law may have been well-intentioned, probably designed to allow persons with disabilities to receive skills training or to complement forms of social assistance. However, being well-intentioned does not justify in my mind a patronizing, stereotypical and discriminatory view towards persons with disabilities.

For the time being, I’m going to put aside my thoughts that this law  is in blatant violation of s. 15 of the Canadian Charter of Rights and Freedoms, which reads that:

Every individual is equal before and under the law and has the right to the equal protection of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

I’m also going to temporarily put aside my thoughts on how employer’s who might use these provisions would likely be in violation of the Alberta Human Rights Act.  This was the case with one Ontario company that paid “training honorariums” of $1.25 an hour to disabled workers while labourers without developmental disabilities received minimum wage.

I also don’t care that this exemption to the Employment Standards is rarely used.

Rather, I want to briefly comment on the message that this type of legislation sends to the public and specifically to persons with disabilities. It says that these people have less value; that their time, labour, potential and creativity is worth less than others.

This language perpetuates stereotypes and reinforces barriers to an important segment of our population that is already marginalized, underemployed and impoverished in comparison to the rest of the population.

It also minimizes the tremendous challenges that all persons with disabilities face in overcoming discrimination and in creating acceptance of a social and employment environment that rewards diversity and improves labour market participation rates of people with disabilities.

So, Government of Alberta, please allow me to slow-clap as you walk down this lonely road of legislative change. I encourage all Albertans to contact their MLAs in support of these reforms. Because in 2016, how is this still a thing?

For an excellent commentary from a person with a disability on this very issue, read Ravi Malhotra’s guest article in Dr. David Doorey’s blog Law of Work.

David M. Brown
Kent Employment Law
Twitter: @davidmjbrown

One thought on “Paying Disabled Workers Less than Minimum Wage: How is this Still a Thing?

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