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November 6, 2008 DOL Home > ESA > WHD

Wage and Hour Division (WHD)

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FOH Field Operations Handbook
Chapter 64 Employment of Workers with Disabilities at Special Minimum Wages under Section 14c
Section 64j Establishing Objective Standards for Hourly Pay Rates

Section 64j02: Quantity and Quality When Computing Hourly Commensurate Wages

FLSA section 14(c )(1)(B) and Regulations 29 CFR Part 525.12(d) require that the SMWs paid workers with disabilities be commensurate with those paid experienced workers who do not have disabilities employed in the vicinity for essentially the same type, quality and quantity of work.
The following are two methods that employers can use to ensure that they take both quality and quantity of work into consideration when computing hourly commensurate wages.
1. Rework.
  - Rework is perhaps the simplest method of evaluating the performance of workers from both a quality and quantity standpoint. It requires that the employer accurately define both the minimal acceptable quantity standard (amount of work) and the minimal acceptable quality standard before workers are evaluated.
  - Once these standards are defined, the worker who does not have a disability is then subjected to a time study. When the worker indicates that he or she has satisfactorily completed the work, the "clock" is stopped, the time is recorded, and the work product is examined by the individual(s) conducting the study to ensure that the worker has met, at least, the minimum acceptable pre-established quantity and quality standards.
    1. If the minimum acceptable standards have been met, the time as recorded is the standard by which the work of the worker with the disability is compared to establish the commensurate wage rate.
    2. If either of the minimum acceptable standards is not met, the worker is advised of the shortcoming(s) and the study will resume with the worker performing rework. The "clock" will again be started and continue ticking while the worker corrects/completes the work product to that point where it meets the minimum acceptable standards. The time spent during the initial study, and all time spent performing rework, are then added together to establish the standard of the worker who does not have a disability.
  - The worker with a disability is then subjected to an identical time study and held to the exact quality and quantity standards as the worker who does not have a disability. When the worker indicates that he or she has satisfactorily completed the work, the "clock" is stopped, the time is recorded, and the work product is examined by the individual(s) conducting the study to ensure that the worker has met, at least, the minimum acceptable pre-established quantity and quality standards.
    1. If the minimum acceptable quality and quantity standards have been met, the time as recorded is then compared to that of the standard setter (the worker who does not have a disability). The percentage yielded by this comparison is then applied to the prevailing wage in order to determine the commensurate wage.
    2. If either of the minimum acceptable standards is not met, the worker is advised of the shortcoming(s) and the study will resume with the worker performing rework. The "clock" will again be started and continue ticking while the worker corrects/completes the work product to that point where it meets the minimum acceptable standards. The time spent during the initial study, and all time spent performing rework, are then added together and compared to that of the standard setter (the worker who does not have a disability). The percentage obtained by this comparison is then applied to the prevailing wage in order to determine the commensurate wage.
  - When using the rework methodology, it is imperative that both the standard setter and the worker with a disability be held to the same minimum acceptable standards of quality and quantity.
    1. These standards must be predetermined, written, and clearly articulated to the workers before the time studies are conducted.
    2. Examples of quality standards for hourly paid jobs could include:
      - the number of streaks left on a mirror or window to be cleaned by a janitor;
      - the amount of waste paper remaining in a waste basket to be emptied by a custodian;
      - the number of pieces of mail that were incorrectly sorted by a mail room attendant;
      - how many "patches" of uncut grass remain on a lawn being mowed by a landscape worker.
  - When possible, use three different people as the standard setter. Although Regulations 29 CFR Part 525 does not specifically require timing three different people, using three different people allows for the fact that different people normally work at different paces.
2. 90/10 Rating.Although not required by the regulations, one method of measuring quality that Wage and Hour has accepted when determining an hourly commensurate rate is a technique known as the 90/10 rating. Various forms have been created by employers and interested parties that assist them in performing the 90/10 Rating. Although WH has not officially reviewed and approved any of these forms, WH accepts their use when properly completed. Although the 90/10 methodology was designed to be used when "rework" is not included in the time studies, some employers still choose to use the 90/10 even after including rework. In these situations, WH accepts this practice as long as there is no deduction from the quality rating because it is to the benefit of the worker with a disability.
  - Under the 90/10 Rating, the standard setter must perform up to the pre-established minimum acceptable quality and quantity standards when being time studied. If he or she does not, the employer must either redefine the standards to comport with the performance of the worker without a disability or conduct another time study.
  - Under this method a 90 percent rating factor is assigned to the quantity of work performed and a 10 percent rating factor assigned to quality of the work performed. Time studies are conducted, under identical circumstances, to determine the productivity (both in terms of quality and quantity) of both the worker who does not have a disability and the worker who has a disability.
    1. To determine the worker with a disability's "quantity" rating, the employer must first compare the quantity of work performed by the worker with a disability to that of the standard setter (the worker who does not have a disability). This figure is then multiplied by 90%.
      - A very simple example might be that the minimum acceptable number of wastebaskets to be emptied by a custodian in 30 minutes, as confirmed by the time study of the standard setter, is 20. If the worker with a disability empties 15 during the 30-minute time study, that worker has an initial quantity rating of 75% (15 divided by 20). When this is multiplied by 90%, the final quantity rating is .675 or 67.5%.
      - When determining the worker with a disability's quantity rating, the employer must arrive at that rating by evaluating the worker only on the job components actually performed. The work measurement method of breaking down a job into its components, and then rating the worker on each individual component, is referred to as factoring. The employer may only rate the worker on the components actually performed and may not penalize a worker because he or she fails to perform, or is incapable of performing, a certain component(s) of the job.
        Factoring is not an acceptable work sampling method when the employer rates a worker on job components the employee cannot or will not perform. For example, a job description may require that a groundskeeper perform the following tasks: picking up trash, sweeping the sidewalk, and operating a power-driven lawn mower. If the employer hires a worker with a disability who can and does pick up trash and sweep the sidewalk, but, for whatever reason, does not operate the lawn mower, the employer must rate that employee only on picking up trash and sweeping the sidewalk. Some employers may attempt to assign a rating of 33 1/3 per cent to each of the three components and then, in order to arrive at a total score, add the ratings awarded the employee for his or her performance of each of the three components. In this example, the employer may not penalize the employee for not operating the lawn mower. The employer would be improperly "factoring" if he or she included a rating of "zero" for operating the lawn mower in the employee's rating. Such factoring would significantly reduce the employee's rating, and thus his or her commensurate wages for the work he or she performs.
    2. To determine the worker with a disability's "quality" rating, the employer must compare the quality of the work performed by the worker with a disability to that of the work performed by the worker who does not have a disability. This figure is then multiplied by 10%.
      Continuing with the example above, if the quality standard was that no more than 4 wastebaskets may have any debris remaining in them after being "emptied," and the worker with a disability leaves debris in only one of the wastebaskets, the initial quality rating would be 100%. This figure is then multiplied by 10% to arrive at the final quality rating of 10%.
      Note: Had the worker with a disability left debris in 5 of the wastebaskets, the employer would be allowed to assign a lower initial quality rating based on an objectively pre-determined scale.
  - The employer then adds together the final quality and quantity ratings that were obtained for the worker with a disability. This is then multiplied by the prevailing wage to obtain the commensurate wage rate of the worker with a disability.
    Again, using the example above, the evaluation of the work performed by the worker with a disability yielded a total final rating of 77.5% (67.5% for quantity plus 10% for quality). If the prevailing wage for the job being performed is $6.50 per hour, the commensurate rate would be $5.0375 or $5.04 per hour (77.5% multiplied by $6.50 per hour yields $5.0375 per hour).
  - INVs may encounter employers who have modified the standard 90/10 Rating form to assign a higher rating to quality. The form may assign ratings of "80/20," "70/30," etc. WH does not automatically accept such adjustments to the 90/10 Rating and employers must be able to document that a higher quality rating is warranted. INVs should contact the Regional Section 14 Team Leader, through established procedures, when encountering a modified 90/10 Rating.