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Severely disabled janitors
are employees

Sinai Hospital of Baltimore v. NLRB (4th Cir 05/10/2022)
Sent to Custom Alerts™ subscribers on 05/10/2022

Sinai Hospital's Vocational Services Program (VSP) provides janitors for the Social Security Administration under a federal program that requires that at least 75 percent of them be severely disabled.

When the NLRB certified a bargaining unit made up of all the janitors, VSP objected, arguing that the disabled janitors engaged by VSP are not in fact statutory "employees."

The 4th Circuit upheld the NLRB's decision, affirming that the disabled janitors are "employees" under the National Labor Relations Act.

The primary issue was whether the disabled janitors had a "primarily rehabilitative" employment relationship or whether the relationship was "typically industrial."

The NLRB relies on the following factors in making that determination:
(1) The existence of employer-provided counseling, training, or rehabilitative services;
(2) The existence of any production standards;
(3) The existence and nature of disciplinary procedures;
(4) The applicable terms and conditions of employment (particularly in comparison to those of nondisabled individuals employed at the same facility); and
(5) The average tenure of employment, including the existence/absence of a job-placement program.

The terms and conditions of employment for VSP's disabled and nondisabled janitors are "virtually indistinguishable," thereby suggesting a "typically industrial" relationship. All janitors at the SSA facility — regardless of disability status — are assigned to shifts of the same length; receive equivalent wages and benefits; have the same job description; and are afforded equal amounts of break time.

VSP does provide certain counseling and rehabilitative services to its disabled (and nondisabled) janitors. However, no evidence indicated that VSP employs any full-time job trainers, mental health counselors, or other comparable personnel at the SSA facility.

VSP applies a progressive discipline system to all of its janitors — irrespective of their disability status — and supervisors are not directed to discipline disabled janitors less severely or otherwise differently than nondisabled janitors.

Although a case manager does provide some job-placement services to VSP's disabled janitors — including assistance with resumé drafting and conducting mock interviews — VSP does not employ a full-time job-placement coordinator and lacks a formal program designed to aid janitors in securing competitive employment outside the SSA facility. Also, there are no time limits placed on janitors' tenure at the facility.

Based on all these factors, the court held that the NLRB properly concluded that the disabled janitors are "employees."

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