Rehabilitative employees and the National Labor Relations Act.

• Author: Sorrell, Justin C.

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 The Americans with Disabilities Act B. The Anticoverage View Is Tainted by Undue Paternalism and Outdated Stereotypes C. Denying Rights Exposes Long-Term Rehabilitative Employees to Exploitation D. The Second Presumption Balances the Pro-Coverage Position with the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. (4) Although rehabilitative employees are also frequently excluded from the benefits of the NLRA, they have not received the same attention. (5)

Rehabilitative employees are a unique set of employees whose distinct needs require particular consideration. They often have mental disabilities or physical deficiencies that impair their ability to work in typical employment environments. (6) The Board vividly described some attributes of a group of rehabilitative employees in Key Opportunities, Inc., showing how such employees may not be able to work in a typical workplace. (7) Several employees, for example, had such low attention spans that their output was only 5 percent of what coworkers without disabilities could produce. (8) Many wandered away from their workstations, and some needed daily instruction to remind them how to perform simple tasks like mowing lawns. (9) One employee cried out of jealousy whenever his supervisor paid more attention to another coworker. (10) Perhaps the biggest obstacle to integration in a typical workplace setting was that some employees had a tendency to "throw things" at coworkers and supervisors. (11) Though this group of employees had especially severe employment handicaps, the Board also includes individuals with less severe employment barriers like a criminal record or lack of education as rehabilitative employees in certain circumstances. (12)

Commenting on rehabilitative employees, the Fifth Circuit observed, "Unfortunately, experience indicates that the private sector is not very anxious to hire blind and multi-handicapped workers." (13) As a result, some employers, often nonprofits, have stepped in to provide such individuals with a place to work and learn job skills. (14) These employers cater to the needs of individuals with disabilities by providing counseling, job training, reduced or no production standards, minimal discipline, and job placement services. (15)

To properly frame why excluding rehabilitative employees from the NLRA's protections may be a problem, an example from a well-read labor law case is useful. Applying the facts of NLRB v. Washington Aluminum Co. to rehabilitative employees illustrates the impact that a lack of NLRA protections may have on the work life of rehabilitative employees. (16) In Washington Aluminum, seven employees walked out of work shortly after the morning bell rang. (17) The weather outside was unseasonably cold, with temperatures ranging between 11 and 22 degrees Fahrenheit. (18) Lacking insulation and with several doors wide open, the factory quickly became bitterly cold. (19) The broken furnace failed to warm the plant. (20) One of the workers testified that he saw workers huddled together, "shaking a little," because of the cold. (21) Finally, one said, "I am going home, it is too damned cold to work!" (22) Six others followed. (23)

Their employer summarily fired all seven men. (24) The Board decided that their action was protected concerted activity under section 7 of the NLRA and ordered their reinstatement with backpay. (25) The Supreme Court affirmed, holding that employees could walk out without a prior demand for changes in working conditions, even if such an act undermined employee discipline and did not allow for prior negotiations. (26)

Now change the facts, but only slightly. Seven employees with disabilities--three of whom are blind, three of whom are severely mentally handicapped, and one of whom is a vocational rehabilitation client--work at the same factory for an employer that offers job training, counseling, reduced discipline, and a job placement program. In the same conditions, under the current Board test, each of them most likely could be terminated without recourse. (27) Blind, mentally handicapped, and vocational rehabilitation clients shivering in the cold without a remedy are an incredibly sympathetic group. Do we really want the kind of labor law that would grant section 7 rights to "normal" employees but deny them to this group?

Perhaps even more shocking than this scene, the answer may be yes. In order to reach that conclusion, one must consider the important policy considerations on both sides of the issue. On the one hand, there are strong federal policies promoting employment of those with severe disabilities and extending NLRA protections to this group may reduce employment opportunities for those with disabilities. (28) On the other hand, much of the work that these employees do is identical to what an ordinary employee with NLRA protections would perform. (29) In addition, sham rehabilitation centers may suppress workplace rights without providing any real benefit to the workers. (30) Furthermore, at least on its face, distinguishing between employees on the basis of their disabilities and the steps that they have taken to overcome their disabilities seems to contravene the policies underlying the Americans with Disabilities Act (ADA). (31)

For such a delicate balance, the Board currently uses a remarkably imprecise test to determine whether rehabilitative employees should enjoy the benefits of the NLRA. After all of the appeals were exhausted, rehabilitative employees received NLRA protections in only four of the fourteen reported rehabilitative employee cases. (32) At each level of review, the reviewing body frequently reversed lower determinations because of ambiguities in the current test. (33) This Note proposes a two-part solution that will reduce this confusion. It strikes a policy balance in order to provide rehabilitative employers and employees more certainty of their rights and responsibilities under the NLRA.

First, this Note argues that the Board should adopt a rebuttable presumption that the NLRA does not cover rehabilitative employees for a short time after they are initially hired, unless an employee can demonstrate by a preponderance of the evidence that the employer is not providing rehabilitative services. Second, this Note argues that the Board should adopt a rebuttable presumption that the NLRA does cover rehabilitative employees after the initial rehabilitation period. An employer may rebut the presumption of "employee" status through a...