Rehabilitative Employees and the National Labor Relations Act

Article excerpt

TABLE OF CONTENTS

INTRODUCTION
  I. DEFINING REHABILITATIVE EMPLOYEES
 II. BRIEF BACKGROUND OF THE NLRA AND THE BOARD
III. EXCLUDING EMPLOYEES FROM NLRA COVERAGE
     A. Declining Jurisdiction over Certain Employers
     B. Deciding that Rehabilitative
        Workers Are Not "Employees"
     C. Applying the Multifactor Test
     D. Problems with the Current Multifactor Test
 IV. THE FIRST PROPOSED PRESUMPTION: DENY NLRA
     RIGHTS FOR AN INITIAL PERIOD UPON HIRING
     A. Federal Policy Indicates that Employees Receiving
        Rehabilitation Should Not Have NLRA Protections
        1. The Javits-Wagner-O'Day Act
        2. Vocational Rehabilitation Programs
        3. Reduced Minimum Wages
        4. The NLRA Was Not Intended To Protect
           Rehabilitative Employees
     B. NLRA Protections Would Not Benefit Rehabilitative
        Employees and May Hurt Them
     C. Anticoverage Arguments Justify Removing NLRA
        Protections in Certain Cases
  V. THE SECOND PROPOSED PRESUMPTION: GRANT NLRA RIGHTS
     AFTER THE INITIAL REHABILITATIVE PERIOD
     A. Federal Policy Does Not Demonstrate Congressional
        Intent To Exclude Rehabilitative Employees; In Fact,
        Congress Affirmatively Provides Protection
        1. Rebutting Federal Policy Arguments Addressed by
           Anticoverage Advocates
        2. The NLRA Covers Rehabilitative Employees
        3. The Americans with Disabilities Act
     B. The Anticoverage View Is Tainted by Undue
        Paternalism and Outdated Stereotypes
     C. Denying Rights Exposes Long-Term Rehabilitative
        Employees to Exploitation
     D. The Second Presumption Balances the Pro-Coverage
        Position with the Anticoverage Position and
        Creates Positive Incentives
 VI. ADDRESSING POTENTIAL PROBLEMS WITH THE
     TWO-PRESUMPTION SOLUTION
     A. Assumption that Providing Work Is Not a
        Rehabilitation Service
     B. Incentivizing the Termination of Rehabilitative
        Employees After the Initial Period
     C. Conflicts Between Sections 8(a)(1) and 8(a)(3) and
        Maintaining the Employer's Right To
        Discharge for Cause
CONCLUSION

INTRODUCTION

Individuals with disabilities are an important part of our society, and the federal government has recognized the valuable role that they can play in the workforce. It is surprising, therefore, that the National Labor Relations Board (the Board) and federal courts have generally denied such individuals protections under the National Labor Relations Act (NLRA) while these individuals seek to enhance their workplace skills through rehabilitation. These protections can be very important for employees' well-being on the job, so the Board's disposition toward denying rehabilitative employees NLRA rights should be closely examined. This Note demonstrates that the current decision-making process for granting rehabilitative employees NLRA protections is far too capricious and politically influenced. Thus, this Note proposes a workable solution that balances competing policy concerns in order to provide rehabilitative employees and employers with greater access to their rights under the NLRA.

The NLRA protects employees who engage in loud, noticeable acts like picketing, striking, and collective bargaining. (1) Importantly, however, it also protects small groups of employees who act together for mutual aid and protection. (2) For instance, the NLRA would protect a small, unorganized handful of employees who spontaneously refuse to work because a factory is too cold. (3)

In recent years, the Board and federal courts have classified several groups of workers into categories that prohibit those workers from receiving NLRA protections. Academics and politicians have noticed many of these questionable exclusions. Nominal "independent contractors," student research assistants, and charge nurses with minimal supervisory authority have all received substantial scholarly consideration, and Congress has attempted to amend the NLRA to make sure that the Act covers these excluded groups. …