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Severely disabled janitors
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.
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:
existence of employer-provided counseling, training, or
(2) The existence of any production
(3) The existence and nature of disciplinary
(4) The applicable terms and conditions of
employment (particularly in comparison to those of nondisabled
individuals employed at the same facility); and
average tenure of employment, including the existence/absence of a
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
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.
all these factors, the court held that the NLRB properly concluded
that the disabled janitors are "employees."
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