Rehabilitative Employees and the National Labor Relations Act

By Sorrell, Justin C. | William and Mary Law Review, November 2010 | Go to article overview

Rehabilitative Employees and the National Labor Relations Act


Sorrell, Justin C., William and Mary Law Review


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        Paternalism and Outdated Stereotypes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.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Rehabilitative Employees and the National Labor Relations Act
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.