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University of Pennsylvania Journal of Law and Social Change

Publication Date

Winter 2024

Document Type

Article

First Page

67

Abstract

The National Labor Relations Act encourages collective bargaining and unionization through the protection of workers’ full freedom of association. However, both the Act’s text and subsequent decisions made by the National Labor Relations Board prescribing the scope of an “employee” covered under the Act have exempted several classifications of workers from its protections. One of these unprotected groups consists of employees in “primarily rehabilitative” work environments—a standard the Board has applied to workers with disabilities, a population already disadvantaged and underrepresented in the labor force. This note argues that the Board’s rehabilitative standard further perpetuates disability discrimination, social stigma, and labor inequities and that in light of these concerns, the primarily rehabilitative standard should be overturned. This note first provides an overview of the National Labor Relations Act and background on the disability labor movement and the benefits of unionization. I then discuss the history of the primarily rehabilitative standard and critique its inception and continued use. Part IV discusses the broader impact of social stigma and disability bias in the law and how these issues play a role in the use of the rehabilitative standard. Finally, I critique the National Labor Relations Board’s exemptions of other populations from being “statutory employees” protected under the National Labor Relations Act and suggest future steps to remedy the injustices perpetuated by the primarily rehabilitative standard.

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