With federal lawmakers slow to act, cities and states are increasingly moving to bar employers from paying workers with disabilities less than minimum wage.

In the last few years, a handful of states and cities have banned or restricted the practice, and advocates say momentum is growing across the country. At least five states have pending legislation that would abolish the so-called subminimum wage, according to the National Association of State Directors of Developmental Disabilities Services or NASDDDS.

“I have seen the issue raised more than once to eliminate subminimum wage, but it’s never gotten to this level of action,” said Rie Kennedy-Lizotte, director of employment policy for NASDDDS.

Opponents of subminimum wage, which dates back to 1938 and allows employers to pay workers with disabilities as little as pennies per hour, say the practice is antiquated and exploitative. They say many people with disabilities are already living in poverty but want the opportunity for competitive, integrated employment.

But some families argue that sheltered workshops where subminimum wage is commonly used provide a valuable way for adults with severe disabilities to build their self-esteem and be productive. Such segregated programs, however, are ineffective at transitioning employees into the general workforce, according to the National Council on Disability.

The recent movement by states began in 2015 when New Hampshire banned employers from paying subminimum wage, and Maryland followed suit in 2016. Alaska’s Department of Labor ended the practice last year, as did Seattle.

The city of Reno, Nev. implemented a ban this year for city contracts and in June the governor of Texas signed legislation that will require state contractors to pay workers with disabilities at least minimum wage. This month, a Washington state law takes effect that prohibits state agencies from paying subminimum wage to people with disabilities.

States with pending legislation include Connecticut, Illinois, Montana, New York and North Carolina.

Shaun Bickley, who describes himself as an autistic advocate and who led the campaign that ended subminimum wage in Seattle, said state and local efforts will likely help drive federal action by building critical mass.

“We have way more momentum on it than we’ve ever had in both states and the federal level, and that’s increasing,” said Bickley, who works for a local nonprofit disability rights group. “This is the result of years of organizing by disabled activists.”

Advocates say the changes are being driven by a variety of factors including evolving expectations among people with disabilities, better preparation and support for employment, and Medicaid’s shift to home and community-based services that require integration in the community.

Kennedy-Lizotte of NASDDDS noted that 47 percent of people with disabilities surveyed by the National Core Indicators, a collaboration that allows states to track outcome measures for people with developmental disabilities, wanted community employment.

“We need to help people do what they’re asking for,” she said. “Subminimum wage jobs just don’t make sense anymore.”

At the federal level, two different bills introduced earlier this year in both the U.S. House and the Senate would eliminate subminimum wage within six years. However, neither the Raise the Wage Act, H.R. 582, or the Transformation to Competitive Employment Act, S. 260, have been brought to a vote.

Bickley said for self-advocates who live in states that haven’t taken action, or who want to influence the federal process, allies already working on the issue can help.

“Identify if you have people on the city, state or federal level that you can meet with or talk to,” Bickley said. “Having legalized discrimination doesn’t help us. We know this model doesn’t work.”

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