December 08, 2020

Cohen Milstein is investigating wage theft in drug and alcohol rehab programs. Please complete our brief questionnaire or contact us directly to learn more.

 

By not paying recovering addicts for their work, residential programs don't provide the most effective approach to healing patients. Plus, it's illegal.

By D. Michael Hancock, former assistant administrator for the U.S. Department of Labor’s Wage and Hour Division, and Joseph M. Sellers, partner at Cohen Milstein Sellers & Toll

Addiction and substance abuse are destroying lives, communities and families all across America. The skyrocketing levels of addiction to opiates, alcohol and other substances make it critically important that effective treatment programs are available for those in need. Respect and dignity for those struggling to fight a nasty disease will be essential to save lives and reduce the number of families torn apart.

Substance abuse programs help in a variety of ways. Some residential programs facilitate the healing process by requiring patients to work full-time jobs as the central feature of the therapy. According to a report published in July by Shoshana Walter, an investigative journalist who has reported extensively on rehab programs that rely on unpaid work, at least 300 work rehab programs in 44 states are attended by over 60,000 recovering substance abusers every year.

Evidence-based studies of therapeutic communities demonstrate that work can be an important part of a holistic treatment program when tailored to a person's skills and aptitude. Such work tends to build on existing strengths and reinforce the value of the individual. However, some research argues that it is not the work itself that provides effective treatment but rather accountability in the form of drug and alcohol testing and paid work. One prominent researcher is quoted as saying: "I'm not sure that it's right to say that work is a powerful incentive. Paid work is a powerful incentive. It's probably the money that's the most important thing."

But many of the workers in these rehab programs are not receiving pay. By not paying recovering drug and alcohol abusers, these programs do not provide the most effective approach to healing patients. Moreover, such arrangements are wrong — and illegal.

Most rehab programs that require work act essentially as temp agencies, farming the rehab residents out to commercial enterprises. The work is often for third parties, such as tree trimming services, dairies, poultry processing plants or oil refineries. The wages are remitted not to the workers but to the rehab centers. In many cases, these workers are not receiving the benefits of a hard day's work, working for no pay, no Social Security credits, no unemployment insurance payment, with all of the fruits of their labor accruing to the treatment centers.

Other rehab-affiliated programs, notably the Salvation Army, have their patients perform grossly underpaid work for their commercial enterprises — if they did not have this captive workforce, they would have to seek labor from the open market.

Work programs that require residents to work jobs that produce goods or services for enterprises operating in the broader economy are obligated to ensure that those working are protected by employment laws. Minimum wage and overtime laws apply even if the employers claim they are not covered by these requirements because of their charitable status, as determined by a unanimous 1985 Supreme Court ruling. The decision stated that even if workers did not consider themselves to be employees, "minimum wage, overtime, and record-keeping requirements of the Fair Labor Standards Act" applied to all workers "engaged in the commercial activities of a religious foundation." The same rules apply to nonreligious charities that engage in commercial activities.

The purposes of these protections are to guarantee a floor under which wages cannot fall to safeguard workers from having to compete based on substandard conditions, as well as to protect businesses that compete with them from unfair competition. These goals are not in any way incompatible with the goals of substance abuse treatment programs. Furthermore, there is no evidence that third-party employers are paying less to the rehab centers than they would to workers secured through temp agencies.

One of the fundamental principles underlying wage and hour law is that neither workers nor businesses should be forced to compete based on substandard wages. In fact, the Fair Labor Standards Act was put in place largely in recognition that the most vulnerable workers need protection because they are largely without power to demand fair treatment on their own.

Addiction treatment programs that require work must abide by the law and protect recovering abusers as members of the workforce. Otherwise, these workers, and the other workers and businesses competing with them, suffer the very harm Congress set out to prevent.

We owe these workers the protection of the law, but more than that, we owe them the respect and the dignity that are signified by paying someone an honest day's pay for an honest day's work.

The article can also be viewed at NBC Think.