Federal Agency Committed to Hiring, and Promoting, Employees with Disabilities

Keith Coburn 2Eighty-five percent of working-age individuals with disabilities are either unemployed or underemployed. Of the 15% that are employed, only half are working in inclusive jobs in the community. Fortunately, new government regulations are focused on changing these grim statistics. A recently proposed rule would require federal agencies to achieve a workforce participation rate of 12% for people with disabilities. One proactive agency, the Federal Communications Commission (FCC), is already leading by example, implementing an initiative dedicated to individuals with disabilities working in competitive and inclusive positions. The Arc’s employment division, The Arc@Work, has been supporting the FCC with their hiring efforts.

After working seasonal and part-time jobs for years, Keith Coburn was ready for the stability and security that comes with full-time employment. So, he reached out to his local chapter of The Arc, The Arc of Prince George’s County in Maryland, where he was connected through The Arc@Work to an opportunity at the FCC. A year and a half on the job, Keith performs a variety of tasks that range from sorting mail to updating and maintaining the database of licensing sales and transfers. As a problem-solver and a “master of Excel”, Keith’s responsibilities have grown steadily at the FCC and he is in the process of receiving his second promotion.

The quality of Keith’s work and his strong work ethic have made, and continue to make, a huge impression on all those who have had the opportunity to work with him. When asked to describe Keith, his supervisors, Annette Smith and Lisa Scanlan, expressed nothing but high praise. “Dependable”, “great team member”, and “great work product” were only some of the ways they described Keith’s performance.

“When Keith is assigned work, he always completes his task on time,” commented Annette. Lisa summed it up by adding: “He always steps up to the plate. He is the ideal employee.” Keith attributes his success to his determination. His advice? “Stick with it. Be flexible and be persistent,” said Keith.

The Arc@Work is a social enterprise that supports employers to successfully locate, hire, and support employees with intellectual and developmental disabilities. To learn more, visit our website at thearc.org/thearcatwork or contact Katherine Murphy at Murphy@thearc.org.

 

The Arc of Delaware Reaches Fair Housing Settlement

Washington, DCThe Arc of Delaware and its counsel Relman, Dane & Colfax, The Arc of the United States, and Community Legal Aid Society, Inc. are thrilled to announce the recent settlement of The Arc of Delaware’s disability discrimination complaint against Sugar Maple Farms Property Owners’ Association, Inc. (SMFPOA). That complaint, filed in March 2015 with the U.S. Department of Housing and Urban Development (HUD) and the Delaware Division of Human Relations (DHR), sought a declaration that SMFPOA violated the Fair Housing Act when it refused to approve The Arc of Delaware’s acquisition of property meant to house four individuals with intellectual and developmental disabilities (I/DD) in a single family home integrated within the community. The complaint sought damages to compensate for the loss of housing opportunities and for violations of the federal and Delaware Fair Housing Acts due to disability discrimination. After DHR issued a finding of discrimination in March 2016, SMFPOA agreed to settle the case and has entered into a Conciliation Agreement with DHR, HUD, and The Arc of Delaware as of May 26, 2016.

“This case shows the importance of vigorously enforcing the Fair Housing Act,” noted Michael Allen, a partner with Relman, Dane & Colfax.  “Although the Act has prohibited disability discrimination for nearly 30 years, we still need to fight every day to redeem the promise of community living for people with disabilities.”

In July 2014, Terry Olson, Executive Director, submitted a bid on behalf of The Arc of Delaware for a lot owned by SMFPOA. The Arc of Delaware intended to build a single family house in a Milford, Delaware residential subdivision with 65 other lots. His offer was accepted by the seller contingent on SMFPOA’s approval of the sale. However, once SMFPOA learned that residents with I/DD would be living there, it told Mr. Olson that such use was barred by its covenants and also expressed concerns about the amount of parking that would be required by the residents’ support staff.

Mr. Olson tried to explain that The Arc of Delaware’s use was protected by the Fair Housing Act and offered to accommodate the extra parking needs while maintaining a uniform appearance within the community. He also offered to give SMFPOA members a tour of a similar home in the area in order to allay any concerns about daily operations. Shortly thereafter, The Arc of Delaware received a letter from SMFPOA reiterating its position that the sale was not approved because it would violate SMFPOA’s covenants and suggesting that allowing people with I/DD into the community would reduce property values and disturb the “quiet enjoyment” of neighbors. The loss of the property and subsequent delay in state funding have deprived The Arc of Delaware and its clients of at least four community-based housing opportunities.

The Fair Housing Amendments Act of 1988 (FHAA) makes it unlawful to “make unavailable or deny” a dwelling because of disability as well as to refuse to make “reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.” Federal courts have consistently held that community supported housing for unrelated individuals with I/DD does not constitute a “business” and does not violate “single family” restrictions, and Delaware law expressly recognizes such housing as “single family” properties for zoning purposes. Further, the courts recognize that most discriminatory remarks are made in coded language, such as the need to “maintain property value.”

Once the complaints had been filed, DHR performed an investigation and issued a finding of discrimination in March 2016. Subsequently, SMFPOA agreed to settle the case. Among other things, the Conciliation Agreement requires SMFPOA to:

  • Apply the same terms and conditions of rental to anyone occupying its properties without regard to disability or any other protected class;
  • Provide written compliance reports to DHR and/or HUD when requested;
  • Allow HUD and DHR to inspect the premises at any time within one year of the agreement;
  • Notify its members and residents in writing of rules, policies, and practices relating to its non-discrimination policy and to prominently display the Equal Housing Opportunity logo within any relevant advertisements it distributes;
  • Ensure that all of its current board members receive comprehensive training on the Fair Housing Act within 90 days of signing the agreement and that all future board members receive such training within 30 days of their election;
  • Pay The Arc of Delaware $55,000 in damages, including attorneys’ fees and costs.

Mr. Olson remarked: “It is challenging enough in Delaware for individuals with I/DD to find affordable housing in the community. When you add discrimination to the mix, it makes it nearly impossible. This victory will help ensure that individuals with disabilities in Delaware will have the same rights as other citizens to live in the community of their choice.”

Shira Wakschlag, Staff Attorney with The Arc of the United States, noted: “For more than 65 years, The Arc has sought to enforce and protect the human and civil rights of individuals with I/DD by working to ensure those with disabilities are able to live in the community free from discrimination and institutional settings. Without the vigorous enforcement of state and federal disability rights laws in instances of discrimination such as this one, this fundamental right would be eroded.”

Relman, Dane & Colfax, a civil rights law firm based in Washington, D.C., served as lead counsel on the case, with The Arc of the United States and Community Legal Aid Society, Inc. serving as co-counsel.

The Arc advocates for and serves people with intellectual and developmental disabilities (I/DD), including Down syndrome, autism, Fetal Alcohol Spectrum Disorders, cerebral palsy and other diagnoses. The Arc has a network of over 650 chapters across the country, including The Arc of Delaware, promoting and protecting the human rights of people with I/DD and actively supporting their full inclusion and participation in the community throughout their lifetimes and without regard to diagnosis.

Editor’s Note: The Arc is not an acronym; always refer to us as The Arc, not The ARC and never ARC. The Arc should be considered as a title or a phrase.

Statement from Julie Petty, Loretta Claiborne, Ricardo Thornton and Frank Stephens

IMG_0788On June 6, 2016, a group of self-advocate leaders met with Gary Owen to discuss offensive content in his Showtime comedy special “I Agree With Myself”.

Statement from Julie Petty, Loretta Claiborne, Ricardo Thornton and Frank Stephens:
Today, Julie Petty (Bentonville, Arkansas), Loretta Claiborne (York, Pennsylvania), Ricardo Thornton (Washington, D.C.) and Frank Stephens (Fairfax, Virginia), representing a broad coalition of disability advocates, met with Gary Owen, a comedian and entertainer.  The meeting was arranged for both sides to listen and hear one another’s perspectives about a segment on Mr. Owen’s comedy special on Showtime.

Prior to the meeting, Mr. Owen decided to remove the segment in his Showtime special in which he depicts people with intellectual disabilities.  Effective immediately, the special will still be available On Demand but will not include this portion.

The meeting was educational, positive and productive.   The outcomes from the meeting were significant.  Mr. Owen made positive commitments regarding use of the “R word” in his comedy routine.

The coalition has agreed to end its advocacy efforts in this situation.  The coalition, through the voices of self advocates Julie Petty, Loretta Claiborne, Ricardo Thornton and Frank Stephens, express our appreciation to Mr. Owen for listening and acting positively to further understanding and healing.

Roll the Vote

I am an individual with a disability, diverse needs, and I am also civically engaged and politically active. I’ve discovered that it is nearly impossible for me to shy away from my civic duties and the issues that affect me the most. You can thank former First Lady Barbara Bush for this, as one of the most defining civic moments was when I was eight, and I gave her a tour of the residential care facility in which I lived at the time. When she asked me, “What do you want to be when you grow up?” My response was, “I want to be the first female President of the United States, but I don’t know. I have this wheelchair thing.” Mrs. Bush reminded me that one of our great presidents, FDR, also had a wheelchair thing. She also said that the MOST important thing I could do was register to vote when I turned 18.

This event inspired me to learn as much as I could about the political process and the various levels of governance. On my 18th birthday, I decided to follow the advice of Mrs. Bush and I registered to vote. It is the best decision I’ve made in my life. Ever.

Registering to vote was an uncomplicated process for me. Being informed on the issues and candidates: that was a little more challenging. I don’t speak political acronyms or legalese. Finding people who could explain things to me in an understandable manner, without treating me as intellectually inferior, was dang near impossible.

I heard a saying once that goes like this: “What’s the best way to eat an elephant? One bite at a time, of course.” I promised myself that I would approach political involvement and voting the same. Even today, I take one bite at a time, and one step at a time. I spend months reading and researching issues, ballot initiatives, and candidates so I am comfortable and confident in my decisions.

I continued to pay attention to major milestones in the disability community. In 1990 the ADA was signed into law, the same day I left the residential care facility where I had met Mrs. Bush.  I spent the rest of my formative years in a small town (400-ish people) in a very rural state. South Dakota has an approximate total population of 800,000. With numbers that small, I realized that every vote is very important; it all matters.

I continued to play an active part in civics and in 2002 I was very thankful for the passage of the Help America Vote Act. This act provided information, resources and technologies which have made the voting process much easier for me. However, improved access and information does not automatically eliminate ignorance. That’s what humor is for.

In the 2014 US Senate election for South Dakota, I was happy to vote for former governor M. Mike Rounds. I had spent months volunteering for his campaign. I was anxious-nervous, anxious-excited (like a kid at Christmas) as Election Day dawned. I went to vote.

This was the first time I was ever voting in a community that was not my hometown, and in a midsized city in South Dakota. The poll watcher, who was rather elderly, asked to see my driver’s license. No problem. She asked me to sign the register. Then, she stopped herself, “Honey, can you write your name?” “What?” “Do you know how to write?” Uh, yeah. The woman behind me in line, whom I’ve known for years, goes “Kati can not only write her name, she can spell it, too.” “What?” “I’ll have you know the woman you are speaking about is college educated, and intelligent.” “Oh. Sorry.” I signed in, went to vote and didn’t think any more about the issue.   The uninformed woman, was effusively apologetic. “I just didn’t know they let your kind vote.” “Really, what kind is that…humankind?” Well, no, uh…

Subsequently, I’ve seen the poll-watcher at various events in the community. I feel like I should write her a thank you note. I genuinely appreciate her. She is a constant reminder for me that while we, as the Disability Community, have come a long way, we still have much work to do to be seen and valued as equals. It is people like this woman who continuously emphasize just how important my vote is, and why it is vital that I show up to the poll.

In the 1990s, there was a movement called ROCK THE VOTE, to register and politically engage young people. With the upcoming presidential election, the time has come to ROLL THE VOTE, to register and politically engage people with diverse needs and disabilities.


Kati is a small town, South Dakota woman who rolls through life. She is simply trying her best to positively change the world. The former governor for whom she voted is now United States Senator Mike Rounds (R-SD), and it is Kati’s pleasure to work for him as an administrative assistant and researcher in one of his regional offices.  

Zika – We All Have Skin in This Game

Some public health crises capture our attention more than others.  A few years back, the phones were ringing off the hook on Capitol Hill about Ebola.  But not so for the Zika virus, we are hearing from Congressional offices.  Is this because we think that Zika will only affect women who are pregnant?  Or just those who live in southern states?  Are we not understanding that this virus could potentially quickly spread in local communities or that people in the south who are at greatest risk right now travel to other parts of the country?

Such a false sense of immunity could cost us dearly.  Studies are rolling in and, taken together, are painting an alarming picture.  According to a study released last week, two million pregnant women in the U.S. could contract the virus by November while another study finds that 29% of Zika-infected women gave birth to babies with adverse outcomes, including stillbirth, microcephaly, and other serious health problems.  Another found that microcephaly alone occurs in up to 13% of babies born to their mothers who became infected during their first trimester.  And this is only what we do know.  Still unknown are, among other things, the long-term effects of Zika on adults and children who contract the virus after birth.  “We still don’t know yet the full rainbow of complications that this virus may produce,” according to the director of communicable diseases for the Pan-American Health Organization.

If we don’t act now, the implications could be dramatic in both the short and long term.  For instance, the travel industry could be decimated in the southern coastal states this summer as infection rates and corresponding fear rise.   Further down the road, state Medicaid programs could see a surge in demand for services for not just people with microcephaly, but those with the still unknown other disabilities that may be significant and lifelong.

Congress left for its Memorial Day recess before having finalized an emergency spending bill for Zika prevention.  When it reconvenes this week, it is imperative that Members hear from their constituents who understand that that Zika prevention is truly a national and urgent priority. Stay up to date on this issue and many others impacting people with disabilities by signing up for our Disability Advocacy Network – be in-the-know and take action when needed!

Blaze a Trail to Future Planning

In the spirit of this year’s Older Americans Month theme, “Blaze a Trail,” The Arc recognizes the many parents of adults with intellectual and developmental disabilities (I/DD) who fought for decades to raise their children at home, to realize their rights to free and appropriate public education, and for recognition as valued contributors to the community. The Arc is committed to supporting these aging caregivers and their adult sons and daughters with I/DD to develop a roadmap for the future.

Future planning is important for all families, but it can be especially challenging for the almost 1 million families in which adults with I/DD are living with aging caregivers.  In two-thirds of these families, there is no plan in place for the future. Many of these families have no connection to the disability community or the disability service system. It is our role to support them to overcome the fear of planning and provide them the information and resources they need to create future plans.

To support these trailblazing families, The Arc of the United States launched the Center for Future Planning™ in 2014. Discussing these major life transitions and putting a plan in place may actually alleviate some of the stress experienced by aging caregivers, their adult sons and daughters, and other family members and supporters.

The Center’s website provides reliable information and assistance to individuals with I/DD, their family members and friends, staff at chapters of The Arc, and other disability professionals on:

  • person-centered planning
  • supported decision-making and guardianship
  • housing options
  • financial planning (including public benefits, special needs trusts, and ABLE accounts)
  • employment and daily activities
  • making social connections
  • providing information if an urgent need arises

During Older Americans Month, here are some ways you can access more help:

  • Read more information about future planning and see how other families have planned.
  • View The Arc’s webinar on supports and services for aging caregivers.
  • Visit The Arc’s new Build Your Plan™ online tool that enables families to create accounts and begin to build their plans within the Center for Future Planning™. Check out the demonstration webinar to learn more about how to navigate Build Your Plan and encourage families to begin creating plans.
  • Encourage families you know to start the process and to get support in their communities. Chapters of The Arc around the country can provide guidance and information about local resources.  Families can also identify professionals in their communities to help them create and implement future plans through The Arc’s Professional Services Directory.
  • In addition, Area Agencies on Aging (AAA) can help with accessing services and support available to seniors. AAAs offer a variety of home and community-based services such as respite, meals on wheels, and transportation. Visit ncoa.org for more information about additional benefits available to seniors.

Supporting aging caregivers and adults with I/DD is an ongoing process and is possible with the help of other family members, friends, the community and professionals. It’s important to work together to develop a plan that will ease the stress of future transitions. You can contact The Arc’s national office at (202) 202-617-3268 or futureplanning@thearc.org for more help.

The Arc’s Letter to Gary Owen on his Comments Offensive to People with Disabilities

May 12, 2016
Dear Mr. Owen,

I am writing in regard to your Showtime Special “Agree with Myself”
and its flagrant mockery of people with intellectual and developmental
disabilities (I/DD). As the nation’s largest organization serving and advocating
with and for people with I/DD, with a network of more than 650 chapters across
the country, we’ve received many complaints about the content of this
program from people who are truly outraged. Having watched the offensive clip
myself, I felt compelled to contact you to voice our concerns.

The segment I am referring to includes you using the word ”retarded” to
describe your cousin with intellectual disabilities. People with I/DD have made
clear for decades that they consider the ”r-word” to be demeaning and don’t
accept it being used to describe them. They view it as analogous to the use of
the ”n-word” to describe a person who is black. For them it is a slap in the face
that reminds them of all the verbal and physical abuse and discrimination they
have experienced on a daily basis. What they want is respect.

In addition to the use of this slur, the content of your act, your antics
and the tone you took are equally unacceptable. Your sketch about your cousin,
her lover and her friends is demoralizing and attacks individuals with I/DD on
multiple levels, from their speech to their sexuality. You dehumanize them for
laughs, not taking into account the dark history individuals with disabilities have
faced in our nation. Individuals with disabilities have suffered through decades
of discrimination and humiliation including forced sterilization, abuse, and
institutionalization.

The fact of the matter is that your special contains callous verbal
violence against a minority group. I hope you can see that this goes beyond an
issue of an artist’s freedom of speech – this is hate speech. The Arc, Special
Olympics, dozens of other disability organizations, and thousands of advocates
across the country are united in our outrage that you and Showtime have failed
to pull this program from On Demand or edit out the offensive segment. We
hope you have dropped it from your live performances.

IVlr. Owen, perhaps you don’t understand that 85 percent of people
with I/DD are not employed, when they could be working but no one will hire
them. Or maybe you are unaware that people with disabilities are three times
more likely to be the victim of violent crimes and four times more likely to be
victims of sexual violence. Fifty-two percent of students with I/DD leave high
school without a regular diploma which greatly limits their prospects for
employment and post-secondary education. Public attitudes and lack of
understanding of people with I/DD, and lack of appreciation for their humanity,
is perhaps the single biggest reason for the challenges people with I/DD face in
being fully included, participating and being treated fairly in their communities.

You could have been part of the solution, as has your fellow comedian
Amy Schumer, but instead you contribute to the problem. Recently, 50 Cent
knew when to apologize after stepping over the line, why not you?

I welcome the opportunity to discuss this matter with you and to
introduce you to people with I/DD who are quite different from the caricature
you provided. As you tour the country in the coming months, we would be
happy to connect you with local chapters of The Arc that will arrange for you to
meet people with I/DD who are leading full lives in and are contributing to their
communities.

Sincerely,
Peter V. Berns
CEO, The Arc

Proposed Ban of Electrical Stimulation Devices An Overdue Step Forward for Dignity and Respect for People with Disabilities

By: Nicole Jorwic, Director of Rights Policy

Every behavior is a form of communication. This is a truth that must be remembered, as we advocate for the civil rights for individuals with intellectual and developmental disabilities (I/DD). Even self-injurious or aggressive behaviors are an attempt by an individual to demonstrate something. Supports should be in place to draw out that communication, not shock it or punish it away. This is why the recent proposed rule from the Food and Drug Administration (FDA) banning the use of electrical stimulation devices (ESD) to treat these forms of behavior is so important.

Per the FDA’s proposed rule, the use of electrical stimulation devices pose the risks of depression, fear, anxiety, panic, learned helplessness, and are associated with the additional risks of nightmares, flashbacks, hypervigilance, insensitivity to fatigue or pain, changes in sleep patterns, loss of interest, difficulty concentrating, and withdrawal from usual activity. The science verifying those risks is clear, while there is no scientific proof that the use of electric shock has benefits in the short or long term.

The science has been clear for years and for decades The Arc has provided testimony at hearings on this issue, submitted comments, and filed amicus briefs encouraging the ban of these devices. Instead of using harmful and demoralizing ESDs, the focus of treatment for all individuals with I/DD who cannot use their voices or other forms of communication to express their wants and needs, must be on changing environmental factors. This will allow the roots of challenging behaviors to be found and allow the individual to discover alternative behaviors that can be used to meet their needs.

The Arc has adopted position statements opposing the use of aversive procedures since at least 1984. Our current position statement on Behavioral Supports developed jointly with the American Association on Intellectual and Developmental Disabilities (AAIDD) and adopted by both organizations in 2010, states in part:

Research indicates that aversive procedures such as deprivation, physical restraint and seclusion do not reduce challenging behaviors, and in fact can inhibit the development of appropriate skills and behaviors. These practices are dangerous, dehumanizing, result in a loss of dignity, and are unacceptable in a civilized society.

The Arc and AAIDD are opposed to all aversive procedures, such as electric shock, deprivation, seclusion and isolation. Interventions must not withhold essential food and drink, cause physical and/or psychological pain or result in humiliation or discomfort.

Our position statement on Education, which was adopted by the Congress of Delegates in 2011, states in part:

In order to provide a free, appropriate public education for students with I/DD, all those involved in the education of students with I/DD must:

  • Ensure that students with disabilities are not subjected to unwarranted restraint or isolation or to aversives.

The Arc is strong in its belief that it is the responsibility of government to protect individuals with disabilities from mistreatment. Using aversive procedures to change behaviors of individuals with intellectual and developmental disabilities is dangerous, dehumanizing, a violation of civil rights, results in a loss of dignity, and is unacceptable in a civilized society.

The Arc applauds the FDA in its effort to ban the use of devices that emit electric shock as a means of modifying the behavior of individuals with intellectual and developmental disabilities.

 

Senate Acts on Zika Funding; The Arc Urges House to Step Up

Washington, DC – With a new public health threat on the horizon for our country, yesterday the U.S. Senate finally acted to provide some of the funding necessary to address the Zika virus. With repurposed funding running out and summer quickly approaching, The Arc and our national network of advocates are urging the House to step up and pass a bill that provides funding to address this issue.

“The clock is ticking, and with every passing day, we are less and less prepared to face this impending public health crisis. We have the ability to mitigate the impact of this mosquito- carried virus, with an investment in mosquito reduction, accelerated vaccine development, and better testing. But Congress has been wasting time, playing politics with public health. Thankfully, the Senate’s action yesterday to approve a down payment on addressing this issue is a step in the right direction. We urge the House to follow suit quickly,” said Peter Berns, CEO of The Arc.

In February, the White House asked for $1.9 billion for Zika vaccine development, better testing, and mosquito reduction. With no action taken by Congress, in April the White House transferred $589 million from money set aside to fight Ebola and other problems to work on Zika prevention efforts. But that’s far short of the amount health officials say they need to be effective and that funding will run out at the end of June. Yesterday, the Senate approved $1.1 billion to combat Zika this year and next year.

While Zika is usually harmless to adults, some women infected with Zika while pregnant give birth to babies with severely disabling brain injury, including microcephaly. Many of The Arc’s more than 650 chapters provide supports and services to families and people with a range of disabilities, including severe disabilities.

The Arc has long held a position on the prevention of intellectual and developmental disabilities (I/DD), supporting our national efforts to continue to investigate the causes, reduce the incidence and limit the consequences of I/DD through education, clinical and applied research, advocacy, and appropriate supports. We firmly believe that prevention activities do not diminish the value of any individual, but rather strive to maximize independence and enhance quality of life for people with I/DD.

The Arc advocates for and serves people with intellectual and developmental disabilities (I/DD), including Down syndrome, autism, Fetal Alcohol Spectrum Disorders, cerebral palsy and other diagnoses. The Arc has a network of more than 650 chapters across the country promoting and protecting the human rights of people with I/DD and actively supporting their full inclusion and participation in the community throughout their lifetimes and without regard to diagnosis.

DOL Releases New Overtime Final Rule-Including Non-Enforcement for Some Medicaid Providers

By: Nicole Jorwic, Director of Rights Policy

The Department of Labor released the much anticipated final Overtime rule today, with the an effective date of December 1, 2016. Along with the rule, DOL announced a non-enforcement policy for providers of Medicaid-funded services for individuals with intellectual or developmental disabilities in residential homes and facilities with 15 or fewer beds. The full policy will be published in the Federal Register next week. The non-enforcement policy will be in effect from December 1, 2016 (when the final rule goes into effect,) until March, 2019. In a call between The Arc staff and DOL and it’s Wage and Hour division, it was highlighted, that this non-enforcement timeframe aligns with the implementation timeline of the Home and Community Services final rule. This will allow HCBS Medicaid providers, who qualify, to prepare for the implementation.

From the DOL Website: Key Provisions of the Final Rule

The Final Rule focuses primarily on updating the salary and compensation levels needed for Executive, Administrative and Professional workers to be exempt. Specifically, the Final Rule:

  1. Sets the standard salary level at the 40th percentile of earnings of full-time salaried workers in the lowest-wage Census Region, currently the South ($913 per week; $47,476 annually for a full-year worker);
  2. Sets the total annual compensation requirement for highly compensated employees (HCE) subject to a minimal duties test to the annual equivalent of the 90th percentile of full-time salaried workers nationally ($134,004); and
  3. Establishes a mechanism for automatically updating the salary and compensation levels every three years to maintain the levels at the above percentiles and to ensure that they continue to provide useful and effective tests for exemption.

Additionally, the Final Rule amends the salary basis test to allow employers to use nondiscretionary bonuses and incentive payments (including commissions) to satisfy up to 10 percent of the new standard salary level.

DOL has released several documents for non-profits including guidance and a shorter fact sheet. Additional resources can be found on DOL’s website. DOL will also be hosting several webinars to provide additional information: register here.