Guidelines for Work By Residents in Public and Private Institutions for the Mentally Retarded (1973)

Organization: 

American Association for Intellectual and Developmental Disabilities (formerly American Association on Mental Deficiency and the American Association on Mental Retardation)

Source: 

CSEP Library

Date Approved: 

May 1973

Other Versions: 

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Guidelines For Work by Residents in Public and Private Institutions for the Mentally Retarded

I. Introduction

For many years, public and private residential facilities for the mentally retarded have employed residents to accomplish a variety of tasks associated with the operation and maintenance of the facilities. Although residents frequently have not been paid for their services or have received only token compensation, work assignments have been considered to be both therapeutic for the resident and, at least in the case of public facilities, justified in terms of the cost to the state of providing residential services.

Enactment of the 1966 Amendments to the Fair Labor Standards Act (1) and the emerging recognition of the need to safeguard the individual rights of retarded persons have combined to force a reassessment of current policies and practices regarding working residents. The following guidelines have been developed both to facilitate the application of the 1966 Amendments to the Fair Labor Standards Act as they affect working residents in public and private institutions for the mentally retarded and to assist workers in the field in dealing with the issues involved. They are intended to maximize the social and economic protections afforded under the Amendments without jeopardizing bona fide training and treatment programs.

In preparing this document, the Association has been guided by the intent and spirit of the Declaration of Rights of the Mentally Retarded adopted by the United Nations General Assembly on December 20, 1971. Also inherent in this document is the belief that an institution should offer its residents the least restrictive work and living environment consonant with the individual's capabilities and habilitative needs.


II. Guidelines

  1. The mentally retarded individual has the same right to just compensation for his or her labor as any other citizen. Therefore, all institutional residents performing work as defined in III G below (including work which is part of a program of occupational training) are entitled to remuneration commensurate with their productivity and in accord with current federal, state and local laws and prevailing wage rates for similar work in the surrounding community.

    Commentary: The principles of equal treatment inherent in our constitutional form of government require that mentally retarded persons he offered the same basic rights as other citizens of the country. The right to just compensation for one's labor is a well established principle which should be applied to all mentally retarded individuals regardless of their place of residence.

  2. A working resident must be paid at least the prevailing minimum wage except when a separate certificate for a handicapped worker has been obtained by the facility in accordance with current regulations and guidelines issued under the Fair Labor Standards Act, as amended. (2)

    Commentary: Existing regulations and guidelines issued by the U.S. Department of Labor should be interpreted to cover all handicapped workers regardless of whether they reside in an institution or in the community. Given the nature and severity of the afflictions of many institutional residents, it is recognized that their productivity may be only a small fraction of the average regular employee;- nonetheless, such working residents deserve to be fairly compensated for their labor (see II C below).

  3. Any resident performing work as defined in III G below must be compensated in direct proportion to his or her productivity as measured in work-equivalents of a regular employee's output.

    Commentary: Compensation for handicapped working residents must be commensurate with those paid non-handicapped workers in nearby industry for essentially the same type, quality and quantity of work. The performance of each handicapped worker in the institution, whether compensated on an hourly or piece rate basis, must he related to: (1) the productivity which can be expected of an average non-handicapped worker if he were doing the same job; and (2) the prevailing wage in industry in the surrounding community for similar work or work requiring comparable skills. For example, if a working resident's productivity is about thirty (30) percent of normal output for an average non-handicapped worker and the prevailing wage rate is $2.00 per. hour, then he should be compensated in cash or in equivalent form of negotiable remuneration at a rate of 60 cents per hour (.30 x $2.W=*D.60).

  4. No resident should be permitted to engage in prohibited activities as defined in III J below.

    Commentary: See discussion under III J below.

  5. Residents need not be compensated for self care and domiciliary activities as defined in III I below.

    Commentary: Those tasks involving the resident's personal hygiene and care of the immediate domicile (e.g. grooming, bed making and sweeping) will not be considered work as defined in III G below when they are part of the individual's written habilitation plan. Therefore, compensation for such activities normally is not required (see also commentary under III I below).

  6. When goods or products are produced on a piece rate basis by residents, the net profit from the sale must be returned to the residents in direct proportion to each individual's contribution to the production of such items.

    Commentary: In determining the net profit from sale of resident-made goods or products, all direct costs to the institution connected with the production of such items may be deducted from the gross receipts from sales. When the costs to the institution exceed the receipts from sales, residents need not be compensated for their labor.

  7. When any working resident is compensated monetarily for his labor and his quarterly earnings exceed the minimum requirement for social security coverage per quarter, he must be made eligible for social security, unemployment and workmen's compensation if such benefits are normally available to regular institutional employees.

    Commentary: Under the conditions outlined above, a working resident should be entitled to the same social security, unemployment and workmen's compensation benefits as any regular employee of the institution. The same eligibility criteria for such benefits should apply to a handicapped working resident as applies to a regular employee of the institution, including the responsibility for paying the employee's share of social security taxes, as applicable.

  8. All residents performing work as defined in III G below must be compensated at least one and one-half times the regular rate for all hours over 40 hours of labor in a work week in accordance with the provisions of the Fair Labor Standards Act, as amended.

    Commentary: The principle of equal pay for equal work extends to payment for overtime work in accordance with the provisions of the Fair Labor Standards Act, as amended.

  9. No resident who is under the legal working age as defined in applicable Federal and State child labor laws may engage in work as defined in III G below.

    Commentary: Mentally retarded children should receive the same protection under applicable Federal and state child labor laws as any other affected minor.

  10. When a resident is compensated monetarily, a portion of his wages may be withheld by the institution to recover an amount not to exceed the actual monthly costs incurred by the institution for care, treatment, training and maintenance of the particular individual. In determining the rate to be withheld from the resident's wages the following general rules will apply:

    1. The resident may retain for his personal use an amount not to exceed twenty-five dollars or twenty-five percent of monthly earnings whichever is greater. However, in no case may the charge to the resident for care, treatment, training and maintenance exceed seventy-five percent of the working resident's gross monthly earnings.

    2. The maintenance, care, training and treatment charge for any working resident must be based on the actual or approximate cost of providing food, lodging and ancillary services to that individual. In no case should an average per diem cost for the entire institution or similar across-the-board estimates be used in calculating charges to working residents.

    3. In no instance may an institution charge any working resident from any one or combination of funding sources more than one hundred percent of the actual costs of providing board, lodging, care and treatment to that resident.

    Commentary: The benefits and privileges of employment carry with them corresponding responsibilities. A working resident who is paid for his labor should be expected to reimburse the institution for board, lodging and ancillary services in accordance with his means. However, as indicated in II B above, frequently such residents will produce at only a fraction of the rate of the average regular employee. Thus, if this principle were literally interpreted, a large majority of working residents would receive no compensation for their labor since the actual cost to the institution of their maintenance, treatment and care would exceed the residents' earnings. In order to reinforce residents' work behavior through direct compensation for their labors, a ceiling is placed on the amount of the total earnings of any working resident which can be retained by the institution to cover the costs of board, lodging and supportive services. The twenty-five dollar monthly minimum is based on the amount that a Medicaid. eligible resident will be entitled to receive for personal needs when the new Federal Supplementary Security Income program goes into effect next January.

    In determining the cost of board, lodging and ancillary services, the institution should base such charges on the actual or ap. proximate cost of providing such services to the particular resident. This provision is intended to guard against cost determinations based on institution-wide averages which would tend to exaggerate the actual cost of maintaining more capable working residents who generally will require a smaller investment of staff time and facilities.

    The provision regarding multiple charges for board, lodging, care and treatment of any particular resident is intended to protect against situations where the institution recovers from several sources (Medicaid, Social Security, Trust funds, residents earnings, parental fees, etc.) more than one hundred percent of the actual costs of maintaining the resident in the facility.

  11. All monetary earnings and other income received by a working resident must be maintained in a secure account which is available to the resident for use at his discretion. The entire proceeds of the account, plus interest if applicable, should be returned to the resident upon his unconditional release from the institution.

    Commentary: Any residual earnings (after taxes and reimbursement for the costs of lodging, board, and ancillary services) received by a working resident should be placed in a secure account which is accessible to the individual wage earner and available for his exclusive use. In no instance should the proceeds of an individual resident's account be lumped together in a general "patient benefit" fund or similar account which fails to identify that portion which belongs to the individual resident. When a resident is unconditionally released from the institution, he should receive the total balance remaining in his or her account plus interest, if applicable.

  12. Residents capable of involvement in the development of their own habilitation plans shall be provided the opportunity to participate in the selection of work situations which are within their capabilities. The institution should be responsible for counseling residents who are adjudged to be capable of performing work or engaging in occupational training on the positive benefits of such activities. However, no resident shall be coerced into working or engaging in occupational training or be punished for refusing to be involved in such activities.

    Commentary: The institution has a responsibility to provide its residents with job counseling. Part of such a counseling program should include assisting the resident to understand and appreciate the positive benefits of occupational training and work. Whenever possible, residents should be offered a choice of work or occupational training settings as part of the development of his individual habilitation plan. However, should a resident refuse to work or engage in occupational training even after counseling, he should not be forced to do so or punished for refusing to participate in such activities. Withdrawal of any extra privileges normally offered working residents will not be considered punishment within the intent of this document.

  13. A resident in an occupational training program who does not show a significant increase in productivity over a six month training period, and who continues in the same activity, shall be considered to be performing Work, and shall be remunerated accordingly.

    Commentary: Occupational training, as defined in III F below, implies that the capabilities of the individual trainee to perform work are being improved and enhanced through an active training process. Once the overall performance of such a trainee has been stabilized, however, and he exhibits no significant increase in productivity over a reasonable period of time (six months), then he should be paid for his labor, placed in a new occupational training setting or transferred to another more appropriate habilitation program which does not involve work or occupational training. The purpose of this provision is to prevent the placement of a resident in an activity labeled occupational training for a prolonged or indefinite period of time.


III.Definitions

  1. Mentally Retarded Individual:

    1. Any individual who meets the definition of mental retardation established by the American Association on Mental Deficiency. (3)

    2. Any person so classified by any legal jurisdiction.

    Commentary: These guidelines are intended to cover all persons found to be mentally retarded under the laws of any federal or state jurisdiction, plus any other individuals, not so designated, who meet the definition of mental retardation generally accepted by professionals in the field.

  2. Institution:

    An institution is any public or private residential facility of any size providing a constellation of professional services, on a twenty-four hour residential basis, including those directed toward the care, treatment, habitation , and rehabilitation of the mentally retarded, and which exercises twenty-four hour control over these individuals.

    Commentary: The key factor in determining whether a public or private residential facility meets the definition of an institution is the amount of control the facility exercises over the lives of the residents. An institution, as defined here, is one which exercises twenty-four hour control over the lives of the residents for whom it is responsible.

  3. Resident:

    A resident is any mentally retarded individual, as defined in III A above, who resides at and is under the control of an institution as defined in III B above.

    Commentary: Self explanatory.

  4. Regular Employee:

    A regular employee is a person who works at an institution, is not a resident of that institution, as defined in C above, and who provides remunerable labor to the institution under Federal, state and local law.

    Commentary: Self explanatory.

  5. Habilitation

    Habilitation includes any activity or a set of activities developed and supervised by qualified professionals which are intended to improve and maintain the health and the social, physical, and intellectual capabilities of a resident.

    Commentary: An institution should maintain a written habilitation plan on each of its residents. This plan should outline an integrated, comprehensive and individualized set of specific program objectives for the resident. Each resident's plan should be reviewed periodically but not less than once annually.

    When the individual's plan includes assignment to occupational training or work, specific statements of anticipated progress should he included in this plan along with the reasons for such assignments. When renumeration to a resident for work performed is to he in a form other than monetary payments. the reasons for using nonmonetary remuneration should be indicated in the individual's plan.

  6. Occupational Training:

    Occupational Training is a specific time-limited category of habilitation which involves placement of a resident in a program which is designed to evaluate and/or enhance that resident's productive capacity and ability to per. form in a competitive or protected work situation.

    Commentary: It should be emphasized that occupational training is a goal oriented activity directed toward maximizing an individual resident's work capabilities. As such, occupational training should not be viewed as a permanent or unduly prolonged assignment for any resident. As indicated in II M above, any resident who fails to show a significant increase in productivity over a six month period while engaged in occupational training should be assigned to another more appropriate, training or habilitation program; otherwise, the particular activity will be considered to be work within the meaning of G below.

  7. Work:

    Work is any directed activity, or series of related activities, which benefits the economy of an institution, con. tributes to its maintenance, or produces a. salable product.

    Commentary: In deciding whether a particular activity constitutes work within the meaning of the above definition, the key determinant is: does the performance of the particular activity or function contribute to the economy of the institution. In other words, if residents were not available to perform the activity or function, would the institution be required too hire additional staff (or pay overtime to existing staff) in order to properly maintain the facility and carry out its assigned mission.

    When a resident is engaged in producing salable goods and products on a piece rate basis, such activities will be considered to be work when the net profit-from sales exceeds the costs to the institution connected with the production of such items (see 11 F above).

    Under the definition, a resident engaged in an occupational training program may or may not be performing work as defined above depending on whether the particular activity or function contributes to the economy of the institution.

  8. Renumeration:

    Remuneration means money, or other forms of negotiable compensation, for work (including work performed in an occupational training situation), which is available to the resident-earner to be used at his or her discretion in determining the benefits to be derived there from.

    Commentary: While monetary payment is the most commonly accepted method of reimbursing a worker for his labor, it is recognized that, under some circumstances, other forms of remuneration may be more desirable. However, under the above definition, any such non-monetary remuneration must be negotiable and permit the resident-earner discretion in determining the good% or services he wishes to obtain with his earnings. Intangible benefits to which it is difficult to attach a monetary value or benefits where the resident-earner has no chance to exercise a choice among alternatives will not be considered remuneration for work performed.

  9. Self Care and Domiciliary Activities:

    Self care and domiciliary activities are tasks related to the care of one's own person and immediate domicile.

    Commentary: To the extent of their capabilities, residents should be expected to perform tasks related to personal hygiene, grooming and care of their own immediate domicile As indicated above. such tasks will not be considered work for purposes of remuneration. However. care and up-keep of the domicile, within this definition, will be limited to regular, routine tasks that a normal individual of similar age who lived in his own home might he called upon to perform.

  10. Prohibited Activities:

    Prohibited activities are those work or occupational training activities which: (1) are unsupervised; (2) are supervisory; (3) are hazardous, either as defined under federal, state, or local law, or in light of an individual's functional capacities; and (4) involve the resident in the direct care of other residents, when the individual is neither qualified nor being trained for such an assignment.

    Commentary: It is recognized that some activities which might not be viewed as hazardous to a normal worker, indeed may be quite hazardous for some working residents due to their physical or intellectual limitations. me residents might he trained, quite appropriately, for direct care of other, more handicapped residents in preparation for employment as a regular institutional aide or for placement in similar work in the community. However, care must be taken to assure that such tasks are assigned only under dose supervision and as part of a structured training program; in addition, no unqualified resident should be permitted to engage in direct care of other residents.

  1. The 1966 Amendments extended FLSA coverage to employees of public and private hospitals and nursing homes (including institutions for the mentally retarded) and altered the rules affecting handicapped workers in sheltered settings.

  2. At the present time five specific types of certificates authorizing subminimum wages for handicapped clients employed in sheltered workshops are available: regular program, work activities center, evaluation, training and individual-rate. A wage floor of at least fifty (5O) percent of the prevailing minimum wage applies to all clients except those employed under work activities center, evaluation, training or individual-rate certificates. Individual-rate certificates may not be less then twenty-five (25) percent of the minimum wage. Work activities center, evaluation and training certificates establish no wage floor (Title 29, Pon 525, Code of Federal Regulations, "Special Minimum wages for Handicapped workers in Sheltered Workshops"). Adopted May 1973

  3. "Mental Retardation refers to significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior, and manifest during the developmental period." AAMD Manual on Terminology and Classification in Mental Retardation, 1973 Revision, Herbert J. Grossman, M.D., Editor; AAMD, p. 11.