gov bens paper 10 9-30-02 updated

8/8/2019 Gov Bens Paper 10 9-30-02 Updated

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Merlin JerniganGovernment Benefits, Professor Davis

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Mutual Aid & Protection:

Workfare Workers Should Have the Right to Unionize

Paper for Government Benefits Law, Spring 2001, Professor Davis


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P. 2/21Introduction

This paper argues that workfare workers, that is recipients of welfare who must

work in order to receive their benefits, should be considered employees for purposes of

the National Labor Relations Act1 (NLRA) and should have the right to unionize.2 The

NLRA guarantees the right to unionize to any employee.3 The NLRA states in

pertinent part:

Employees shall have the right to self-organization, to form, join, or assistlabor organizations, to bargain collectively through representatives of theirown choosing, and to engage in other concerted activities for the purposeof collective bargaining or other mutual aid or protection . . . 4

The NLRA lists categories of employees who are excluded from the NLRAs

coverage but workfare workers are not among those excluded.5

The 1996 Personal Responsibility and Work Opportunity Reconciliation Act6

(PRWORA) reformed welfare to include a five year maximum lifetime limit for receipt

of benefits and to emphasize moving recipients from welfare to work. The benefit poor

families can receive is termed Temporary Assistance for Needy Families7 (TANF) and

many TANF recipients must, as a condition of receiving their benefits, perform work

activities for at least 30 hours per week.8 While many different types of activities

1 National Labor Relations Act, 29 U.S.C.A. 151-169 (West, WESTLAW 2002).2See also Craig L. Briskin, The Waging Of Welfare: All Work And No Pay?, 33 HARV. C.R.-C.L. L. REV.559, 576-587 (1998) (argues that workfare workers should have the right to unionize under the NLRA).

3 29 U.S.C.A. 152 (3) (West, WESTLAW 2002).4

29 U.S.C.A. 157 (West, WESTLAW 2002).5 The NLRA provides that the term employee . . . shall not include any individual employed as anagricultural laborer, or in the domestic service of any family or person at his home, or any individualemployed by his parent or spouse, or any individual having the status of an independent contractor, or anyindividual employed as a supervisor, or any individual employed by an employer subject to the RailwayLabor Act. 29 U.S.C.A. 152 (3) (West, WESTLAW 2002).6 Personal Responsibility and Work Opportunity Reconciliation Act of1996, Pub. L. No. 104-193 , 110Stat. 2105 (1996) (codified as amended in scattered sections of 42 U.S.C.)7 42 U.S.C.A. 601-619 (West, WESTLAW 2002).8 42 U.S.C.A. 607 (c)(1)(A) (West, WESTLAW 2002).
http://web2.westlaw.com/Find/Default.wl?DB=1000819&DocName=USPL104-193&FindType=L&AP=&RS=WLW2.79&VR=2.0&SV=Split&MT=LawSchool&FN=_tophttp://web2.westlaw.com/Find/Default.wl?DB=1000819&DocName=USPL104-193&FindType=L&AP=&RS=WLW2.79&VR=2.0&SV=Split&MT=LawSchool&FN=_top


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P. 3/21qualify as work activities, in some states most recipients must perform work as their

work activity.

As one commentator has pointed out TANF families are not welfare recipients.

They are workfare workers. They are not on the dole. They have a job.9 Those TANF

recipients who must work in order to receive benefits are not properly viewed as welfare

recipients, rather it should be recognized that they are employees just like any other

employee who must work in return for compensation. Since workfare workers are

employees they should have the same legal protections as other employees, including the

right under the NLRA to join or form unions.

This paper will first review the work activities requirements established by

PRWORA and how these requirements have been implemented in New Mexico. Then,

the paper will review National Labor Relations Board decisions regarding what types of

workers are covered by the NLRA, and how these decisions impact the question of

whether workfare workers should be covered by the NLRA. Finally, this paper will

discuss cases involving workers compensation that have directly considered the question

of whether workfare workers are employees for the purpose of the workers

compensation statutes. The workers compensation cases involve an analysis of the term

employee which is similar to the analysis of employee under the NLRA.

PRWORAs Work Participation Requirements

Financial assistance under PRWORA is only available to individuals who are

either pregnant or have a minor child.10 Under PRWORA states must require a recipient

to engage in work once the recipient is ready to engage in work or has been receiving

9Kevin M. Ryan,Reshaping the Welfare Debate: the Poor People's Labor Movement, 10 AM. U.J. GENDERSOC. POL'Y & L. 41, 45 (2001).1042 U.S.C.A. 608 (a)(1) (West, WESTLAW 2002).


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P. 4/21benefits for 24 months, whichever is earlier.11 A recipient is engaged in work . . . if the

recipient is participating in work activities for at least thirty hours per week. Work

activities include the following:

1. unsubsidized employment2. subsidized private or public sector employment3. work experience if sufficient private sector employment is notavailable4. on-the-job training5. job search and job readiness assistance6. community service programs7. vocational educational training (not to exceed 12 months)8. job skills training directly related to employment9. the provision of child care services to an individual who is

participating in a community service program12

Additionally, for a recipient who has not graduated from high school or earned a

GED the following activities qualify as work activities: satisfactory attendance at

secondary school or a GED program and education directly related to employment.13

Thus, the states have a menu of activities in which recipients can participate and different

states have emphasized different types of activities.

New Mexico TANF Program Requirements

New Mexico is an example of a state which has emphasized the educational and

community service work activities.14 In New Mexico the TANF state program is called

New Mexico Worksand was instituted in 1998.15 The stated purpose of the program

is:

to increase family income through family employment and child support and, by viewing

financial assistance as a support service to enable and assist parents to participate inemployment rather than as an entitlement, to enable New Mexico to change the culture ofthe welfare office, both on the part of the department and on the part of the recipients, so

11 42 U.S.C.A. 602 (a)(1)(A)(ii) (West, WESTLAW 2002).12 42 U.S.C.A. 607 (d)(1)-(9), (12) (West, WESTLAW 2002).13 42 U.S.C.A. 607 (d)(10),(11) (West, WESTLAW 2002).14 Telephone interview with Kenneth Owens, Welfare Advocate, The New Mexico Legal Aid Society,(Sept. 19, 2002; Telephone interview with Matthew Henderson, ACORN (Sept. 24 2002).15 N.M. STAT. 27-2B (West, WESTLAW 2002).


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P. 5/21that all parties can focus on addressing the barriers to participation in work activities andputting New Mexicans to work.16

The statute lists the nine activities detailed in the previous section as acceptable work

activities, which must be performed for a maximum of 34 hours per week.17

The community service activity is defined as a non-paid work activity . . . [and

may take place at] libraries, charities, churches, and schools . . the activities carried out

must be similar to those which would normally be carried out by a volunteer . . . rather

than those carried out by an employee. However, the heart of volunteerism is that it is a

voluntary choice. Once community service is done as a means to fulfill a work

requirement it is transformed into a paid job and the worker should be deemed an

employee of the organization. Some recipients may have chosen to do the work as

volunteer activity if they had the free time. However this is not volunteerism since

benefits will be cut off if the work is not performed.18 Therefore, those workers which

perform community service work should have the right to form unions, just as other

workers at nonprofits are able to do.19

One difficulty with unionizing community service

participants is that they may move from one organization to another and thus may not

work for a long enough period for any one employer to be allowed to unionize under the

NLRA.20

16 N.M. STAT. 27-2B-2 (F) (West, WESTLAW 2002).17N.M. STAT. 27-2B-5 (A), (C) (West, WESTLAW 2002).

18See Tony And Susan Alamo Foundation V. Secretary Of Labor, 471 U.S. 290, 302 (1985) (find thatpeople who worked at a nonprofit religious organization and received food, clothing, shelter, and otherbenefits but not cash as payment were employees for purposes of the Fair Labor Standards Act eventhough the employees testified that they viewed themselves as volunteers not employees).

19See Mon Valley United Health Services, Inc., 238 N.L.R.B. 916 (1978) (employees at a non-profit fundedby government sources allowed to form union).20 See the discussion of temporary workers in the section duration of workfare jobs and the effect of lessthan full-time employment section below.


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P. 6/21National Labor Relations Act

The NLRA does not define the term employee except to say it includes any

employee but the term employee has been construed broadly.21 There is no special

limitation on what kinds of employees are covered under the NLRA, except for

specifically listed classes of employees which are excluded from the NLRAs coverage.22

The NLRA applies to nonprofits,23 where many TANF recipients work as part of

the community service work activity. Mon Valley United Health Services, Inc.was a

nonprofit provider of health and welfare services.24 In Mon Valley the National Labor

Relations Board (the Board) held that employees of the nonprofit could unionize despite

the fact that the nonprofit received significant funding from government sources and

there were, in some cases, government imposed restrictions and guidelines for the use of

that funding.25 The employer argued that its funding sources exercise such substantial

control over its labor relations policies that it cannot effectively engage in collective

bargaining with the employees . . .26 However, the Board in Mon Valley found that the

employer did exercise enough control over the [employees] wages, hours, and other

terms and conditions of employment that the employer could engage in meaningful

collective bargaining with its employees.27

An argument similar to Mon Valleys may be attempted with regard to a workfare

worker; an employer could argue that since it does not control the workfare workers

wages nor determine the workers hours and does not pay the worker that it cannot

effectively engage in collective bargaining with the workfare worker. However this

21 29 U.S.C.A. 152 (3) (West, WESTLAW 2002).22See note 5,supra.23See Mon Valley United Health Services, Inc., 238 N.L.R.B. 916 (1978).24Id. at 916.25Id.26Id.27Id. at 917.


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P. 7/21argument should fail sine, as discussed below, an employer can control the workfare

workers wages by reducing the workers hours. Additionally, the source of funding for

the workers salary was not determinative in Mon Valley and should not be allowed to

take workfare workers out of the NLRAs coverage.

The employer also argued that separate units for each program . . . are . . .

required in view of the various funding sources that the Employer relies on to furnish the

financial support for its programs.28 However the Board did not accept this argument in

the case of Mon Valley and found that the Employer, and not its funding sources, exerts

meaningful control over the labor relations policies of the programs now under

consideration.29 The Board also found that the employees shared a community interest

for collective-bargaining purposes, as evidenced by the traditional criteria, such as

substantial working contact between employee groups; similar wages and fringe benefits;

similar hours and working conditions; a centralized labor relations policy; and the

integrated nature of the Employer's operations.30

An employer of workfare workers could argue that since workfare workers are

paid by a separate source, they should be placed in a separate bargaining unit from the

other employees. This should fail just as it did in Mon Valley; this factor is not relevant

to the degree of control the employer exercises over workfare workers. Workfare

workers would share a community of interest with other employees with respect to the

following factors: substantial working contact between employee groups; similar wages

and fringe benefits; similar . . . working conditions; and in some cases a centralized

labor relations policy; and the integrated nature of the [e]mployers operations.

28Id. at 925.29Id.30Id.


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P. 9/21not readily adaptable to the collective-bargaining process.38 Residents undoubtedly gain

medical skill and knowledge during their residencies. In these two cases the Board

focused on this fact to the exclusion of considering the long hours of work put in by the

house staff in the course of their residencies.

InBoston Medical Centerthe Board changed its focus from the educational value

of the medical residency for the residents to the work performed by the residents for the

benefit of the hospital. The Board concluded that house staff were statutory employees

for purposes of the NLRA 2(3). The Board looked to the language of the NLRA and

noted that the breadth of 2(3)s definition is striking. The Act specifically applies to

any EE.39 The Board concluded that the word any points to a broad construction

of the term employee. However, this does not provide any detail as to what kinds of

people fall within the definition of employee in the first instance. As a dissenting

member inBoston Medical Centernoted this definition is not helpful since defines the

word employee by reference to the word itself.40

However, a broad reading of the term

employee is consistent with the remedial nature of the NLRA.

The NLRA provides for specific exclusions of certain classes of workers from

coverage under the NLRA. The Board noted that students do not fall within the

exclusions [t]hus, unless there are other statutory or policy reasons for excluding house

staff, they literally and plainly come within the meaning of employee as defined in the

Act.41 The Board concludes that, barring other statutory or policy reasons, the words

38 229 N.L.R.B. at 1002.39330 N.L.R.B. at 13 (citing Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 891-892 (1984)).40Id. at *28.41Id.
http://web2.westlaw.com/Find/Default.wl?DB=780&SerialNum=1984130738&FindType=Y&ReferencePositionType=S&ReferencePosition=891&AP=&RS=WLW2.79&VR=2.0&SV=Split&MT=LawSchool&FN=_tophttp://web2.westlaw.com/Find/Default.wl?DB=780&SerialNum=1984130738&FindType=Y&ReferencePositionType=S&ReferencePosition=891&AP=&RS=WLW2.79&VR=2.0&SV=Split&MT=LawSchool&FN=_tophttp://web2.westlaw.com/Find/Default.wl?DB=780&SerialNum=1984130738&FindType=Y&ReferencePositionType=S&ReferencePosition=891&AP=&RS=WLW2.79&VR=2.0&SV=Split&MT=LawSchool&FN=_top


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P. 10/21any employee in the statute mean that any worker that is not excluded by statute from

the NLRAs coverage is included within the term employee.

The Board pointed to the following characteristics of the house staffs

relationship with the hospital as showing an employer-employee relationship: First,

house staff work for an employer within the meaning of the Act. Second, house staff are

compensated for their services . . . Third, house staff provide patient care for the

Hospital.42 The Board acknowledged that the house staff receive advanced training

but determined that [t]heir status as students is not mutually exclusive of a finding that

they are employees.43 This decision was a major departure for the Board from its

reasoning in previous decisions. The Board focused on whether work was performed by

the resident for the benefit of the hospital and held that the educational nature of a

medical residency did not in any way detract from the reality that work was being

performed.

This holding gives support to the argument that workfare workers should be

considered employees for purposes of the NLRA. Just as medical residents receive an

educational benefit from their residencies, many workfare workers may gain skills as the

result of their workfare assignments. However, the Board held that the educational

benefit medical residents received did not mean they were not employees; similarly, the

benefit of improved skills should not keep workfare workers from enjoying the protection

of the NLRA.

The dissents to theBoston Medical Centerdecision adhered to the reasoning of

prior cases where the Board focused on the education received by the residents and held

42Id. at 14-15.43Id. at 15.


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P. 11/21that the work the residents performed was merely an incident of their education. One

dissenter stated that in its prior cases [t]he Board exercised its discretion by holding that

collective bargaining should not be applied to what is fundamentally an educational

relationship.44 This dissent did not base its conclusion on an assertion that house staff

were not employees for purposes of the NLRA, rather this dissenter conclude[d] that, as

a policy matter, the Board should continue to exercise its discretion to exclude them for

purposes of collective bargaining.45

A second dissenter disputed that the house staff received compensation for

services rendered to an employer, an indispensable attribute of an employee-employer

relationship. This dissenter characterized the stipend that the house staff received as for

the purpose of supporting the individual during a lengthy graduate education program . . .

.46 However, the Board found that the stipend was compensation, a finding which

argues in favor of a broad definition of compensation.47 Thus, this decision supports

the conclusion that the Board would find that the TANF benefit a workfare workers

receives is compensation.

InNew York University the Board found that graduate assistants were employees

for purposes of the NLRA. The Board followed the same line of reasoning that it used in

Boston Medical Center. The employer (NYU) contended that graduate assistants were

students, not employees.48 Additionally, NYU argued that even if graduate students are

statutory employees, policy considerations require their exclusion from coverage under

the Act.49 The Board found that the graduate assistants were statutory employees and

44Id. at 28.45Id.46Id.4748 332 N.L.R.B. at *2.49Id.


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P. 12/21rejected the contention that even though graduate assistants may be predominately

students, they cannot be statutory employees.50 The Board again looked to the

definition of employee in the Act: Section 2(3) of the Act broadly defines the term

employee to include any employee.51 The Board cited to the Supreme Courts

decision in Sure-Tan v. NLRB52 in which it stated that unless a category of workers is

among the few groups specifically exempted from the Act's coverage, the group plainly

comes within the statutory definition of employee.53 The Board stated that the Act

used the common law definition of the term employee.54

The Board also cited toBoston Medical Centers reasoning that nothing in the

statute suggests that persons who are students but also employees should be exempted

from the coverage and protection of the Act.55 The Board found that the fulfillment of

the duties of a graduate assistant requires performance of work, controlled by the

Employer, and in exchange for consideration56 thereby establishing an employee-

employer relationship.

The employer also argued that graduate assistants do not have a traditional

economic relationship with the Employer.57 NYU compared the graduate assistants to

the Goodwill of Tidewater58clients with disabilities, who the Board found not to be

employees under the NLRA. In holding that the Goodwillclients were not employees for

purposes of the NLRA the Board found that the relationship between the Employer and

50Id.51Id. at *2.52 467 U.S. 883 (1984).53 332 N.L.R.B. at *2 (citing Sure-Tan v. NLRB, 467 U.S. 883 (1984)).54Id.55Id. (citingBoston Medical Center, 330 N.L.R.B. 30).56Id. at *4.57Id. at *5.58 304 N.L.R.B. 767, 768 (1991).


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P. 13/21the clients is primarily rehabilitative and that working conditions for the clients are not

typical of the private sector.59 The Board stated that the same cannot be said of the

relationship that graduate assistants have with the Employer here60 Similarly, an

argument that workfare assignments are rehabilitative should fail since workfare workers,

unlike the Goodwillclients, perform substantially the same work as the other employees

with whom they work side by side.

In order to be an employee the worker must be compensated by the employer.

NYU contended that the graduate assistants received financial aid, not compensation.61

The Board responded that the graduate assistants, unlike the students receiving financial

aid, perform work , or provide services, for the Employer under terms and conditions

controlled by the Employer.62 Thus the Board has a broad definition of compensation

and this decision makes it less likely that workfare workers benefits could be taken out of

the compensation category since their receipt of these benefits is contingent on the

performance of work. In the case of workfare workers the case is more clear-cut since

their hours they are required to work is the benefit divided by the minimum wage.

When do Employees Share a Community of Interest such that it is Appropriate for

them to Join Together to Form a Union

The Board inBoston Medical Centerstated that in evaluating whether a

community of interest exists between the workers seeking to enter a bargaining unit and

the workers in that bargaining unit it looks to whether the workers work in the same

capacity as other workers and what their stake in the outcome of negotiations would

be.63 The Board held that the medical residents should be placed in the same bargaining

59 332 N.L.R.B. at * 5.60Id. at *561New York University, 332 N.L.R.B. at *4.62Id.63 330 N.L.R.B. at *16.


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P. 14/21unit as staff physicians although there were differences in the duties and skills of the two

groups.64 The Board stated that to place them in separate units would unduly fragment a

fairly homogeneous grouping of medical professionals.65 Workfare workers often have

skills and job duties which are more similar to those of their fellow non-workfare

employees than the skills and duties of medical residents are similar to staff physicians.

Thus, workfare workers should be allowed to join existing unions, otherwise workers

would be unduly fragmented.

One commentator argues that workfare workers would not share a community of

interest with other employees and should therefore be placed in a separate bargaining unit

from other employees.66 However, workfare workers work side by side with other

employees and would share a community of interest with them regarding issues such as

work conditions and salary.67 Both workfare workers and their fellow employees would

have more bargaining power as part of the same bargaining unit. In fact, the AFL-CIO

(American Federation of Labor-Congress of Industrial Organizations)68 Executive

Council supports the admission of workfare workers into existing bargaining units.69

Duration of Workfare Jobs and Effect of less than Full-time Employment

The uncertain duration of workfare workers length of stay with their employers

could introduce a problem regarding their right to unionize since temporary workers are

not allowed to be part of a union.70 If an employees duration of employment terminates

64Id. at *26.65

Id. at *26.66 Terence O'Neil , Workfare From A Management Perspective, 73 ST. JOHNS L. REV. 813, 818 (1999).67 See the discussion of time credits below for an explanation of how salary can be a factor for workfareworkers.68 The AFL-CIO is the voluntary federation of America's unions, representing more than 13 millionworking women and men nationwide. AFL-CIO Website, at http://www.aflcio.org/front/faqs.htm(lastvisited 9/30/02).69 Jeffery B. Fannell, The National Labor Perspective Of The AFL-CIO, [FNa1], 73 ST. JOHNS L. REV. 761,763 (1999).70Boston MedicalCenter, 330 N.L.R.B. at *23.
http://www.aflcio.org/front/faqs.htmhttp://www.aflcio.org/front/faqs.htm


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P. 15/21on a date certain they are considered a temporary employee.71 Despite the fact that the

residents had fixed terms of employment that lasted from three to seven years theBoston

Medical CenterBoard found that they were not temporary employees because they were

employed for such long periods of time.72 The Board did not announce a bright line rule

to divide those temporary workers not allowed to unionize under the NLRA from other

workers such as residents who were allowed to unionize. However, those workfare

workers who work for a given employer for long periods of time should be able to

unionize.

While temporary employees may not join a union, part-time employees can. Thus,

if a workfare worker works less than full time they may still join a union.73 InNew York

University the fact that graduate assistants only spend around 15% of their time working

did not mean they were not employees for purposes of the NLRA. Additionally, Mon

Valley provides an example of a decision where the NLRB has allowed part-time

employees to join unions together with full-time employees.74

Time Credits: Bringing Wages Within the Ambit of Collective Bargaining for

Workfare Workers

One commentator maintains that [i]n collective bargaining situations, contracts

are settled 98% of the time by money. Raises settle other issues. If money is taken out of

the mix and only other issues are left, there will be perpetual bargaining. 75 Since

workfare workers are paid at a constant dollar amount it would appear that employers

will lack the bargaining chip of offering a raise when they negotiate with unionized

workfare workers. However, the amount a workfare worker receives per hour would be

71Id.72 Id. at 23-24.73New York University, 332 N.L.R.B. at *3.74 238 N.L.R.B. 916.75 Terence O'Neil , Workfare From A Management Perspective, 73 ST. JOHNS L. REV. 813, 819 (1999).


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P. 16/21more if the worker were required to work fewer hours while receiving the same TANF

benefit.

TANF recipients are required to participate in work activities for a certain number

of hours a week. Their compensation is limited to and fixed at the value of their benefits,

thus the only way they can receive an increased wage per hour is to work fewer hours.

However, working fewer hours would make it more difficult for them to meet their work

activity requirements. Therefore a time credits program should be instituted. The

number of hours by which their work is decreased due to an increased hourly wage would

be credited towards their work requirement. In this way, workfare workers can have the

benefit of working less time for the same compensation, which is equivalent to a wage

increase. They could be rewarded in this way for good work performance, as other

workers are rewarded with higher wages. This would add a positive incentive to excel in

the workplace. The negative incentive of the welfare sanction spurs these workers to go

to work and perform adequately; the time credits would encourage them to excel and

get raises in the form of decreased hours. Another alternative would be supplemental

benefits awarded to workers with excellent work performance. However, due to the goal

of controlling costs states would probably prefer the time credits option.

State plans and the federal PRWORA should be amended to allow for time credits

to count towards the hours recipients must participate in work activities. This mechanism

would allow for collective bargaining over wages and would strengthen the community

of interest workfare workers share with other workers since they would all share an

interest in increased wages.


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P. 17/21Workers compensation & Workfare Workers

The question of whether workfare workers are employees for purposes of

workers compensation statutes raises issues similar to those involved in the question of

whether workfare workers are employees for purposes of the NLRA; courts use many of

the same factors in determining whether a worker is an employee in both cases. An

important factor in both cases is the degree of control the employer has over the workers

terms and conditions of employment. Thus, these cases involving workfare workers offer

insight into how the Board may rule on whether workfare workers are covered under the

NLRA.

Courts have differed in their answer to the question of whether workfare workers

are employees for purposes of workers compensation statutes. Their analysis either

makes the fact that work is done the central factor or makes the receipt of welfare

benefits the central factor. These approaches mirror the way that theBoston Medical

Centermajority made the work done by residents central to its analysis while the

dissenters made the education gained by the residents central to their analysis.

Alcozer v. North Country Food Bank76involved Mr. Alcozer, a welfare recipient

who was in a work program and was injured while working. To fulfill his work

requirement Alcozer spent 16 hours per week at the North Country Food Bank (North

Country), a nonprofit organization, performing such tasks as unloading trucks, making

up food packages, and sweeping.77 He sustained long-term injuries to his arm while

unloading a truck at North Country.78 He filed a claim for workers compensation that

was denied due to the fact that he was not an employee for purposes of the workers

76 635 N.W.2d 695 (Minn. 2001).77Id. at 697, 699.78Id. at 699.


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P. 18/21compensation statute.79

Alcozer maintained that he performed valuable services for North Country in

exchange for a portion of his AFDC benefits. However, the court maintained that North

Country provided a service to . . . Alcozer by permitting him to be placed with North

Country to gain work skills and experience.80 The courts language removes the fact

that Alcozer was performing the work of unloading trucks, making up food packages

and sweeping for the benefit of North Country. Any employer-employee relationship is

a two-way street; both the employer and the employee benefit which is what motivates

each side to enter into the relationship. The court here used the benefit received by

Alcozer, work skills and experience, to deny that he was an employee and to present him

as only a beneficiary. This is an inaccurate description of Alcozers relationship to North

Country and thereforeAlcozershould not be followed in cases considering the

application of the NLRA to workfare workers.

State ex rel. Patterson v. Indus. Comm. 81involved a workfare worker, Frank H.

Patterson, who was killed by a disease he contracted in the course of his work. Ohio had

enacted a workers compensation statute specifically for its workfare workers.82 This

statute offered significantly lower death benefits to a deceased workfare workers

dependents than was available to the dependents of other deceased workers.83 The court

79Id. at 697. Minnesota had established an Injury Protection Program (IPP) which the Department foundwas the sole remedy for injuries arising out of any community work experience program. Alcozersmedical bills were paid by the IPP but no compensation for his loss of use of his arm was provided.80Id. at 702.81 672 N.E.2d 1008 (Ohio 1996).82Id. At 1009.83Id. Although the court used the term work-relief worker this paper uses the term workfare worker forconsistencys sake.


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P. 19/21concluded that the deceased had been an employee for purposes of the workers

compensation statute that applied to non-workfare workers.84

Dissenting justice Stratton maintained that the workfare worker compensation

plan was an extension of welfare protection . . . The reality is that a [workfare workers

and wage-earners] are not similarly situated. The majority and the dissent had

fundamentally different conceptions about the nature of workfare workers. The majority

emphasized that workfare workers are in the same class as other employees. The

majoritys approach places the fact that workfare workers perform work at the center of

its analysis. The dissent created a dichotomy between welfare recipients, who are

funded by the taxpayers, and wage-earners who are paid by their employers. This

distinction is not as fundamental as it appears; federal employees are no less employees

because they are paid by the taxpayers and workfare workers should not be considered

less than employees due to the fact that they are paid by the taxpayers. If our society

truly wants to help welfare recipients become productive workers then we should follow

the majority in allowing the fact that these workers work to take center stage and allow

the same legal rights to attach to workfare workers as attach to other workers.

Chichester School Dist. v. W.C.A.B.85 involved a work-fare worker, Nelson W.

Fox, who worked at schools in the Chichester School District performing heavy

maintenance work.86 Foxs work was a condition precedent to his receiving public

assistance from the Department of Pubic Welfare . . . in the amount of $329 per

month . . .87 While lifting a rug Fox sustained permanent injuries to his back.88 Fox

84Id. at 1011. The court also found that the workfare workers compensation statute violated the EqualProtection Clauses of both the U.S. and Ohio state constitution.85 592 A.2d 774 (Pa. 1991).86Id. at 775.87Id.88Id.


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P. 20/21filed a claim for workmens compensation and it was approved; the school district

appealed this decision and argued that it was not Foxs employer.89 The court held that

the findings demonstrate sufficient immediate control over the work to be done and the

manner of performance, as well as a right to select and power to remove the employee, so

as to lead to a conclusion that the School District was the employer.90 The court noted

that the Department of Public Welfare did not hire the worker; rather, it directed him to

the School District to seek employment . . . .91 Although Fox worked for the school

district he was not paid by the school district, nonetheless the court found that he was an

employee of the school district. Therefore it is not essential to a showing of employee

status that the employees pay actually come from the employer. This case illustrates that

workfare workers paid out of government funds while working for entity from which

those funds do not originate should nonetheless be considered an employee of that entity.

The school district also argued that Foxs benefits should not have been

considered wages for purposes of calculating the amount of workers compensation

benefits he was entitled to. However, the court concluded that for so long as Fox was

compelled to work in order to receive the benefits in question, it was entirely appropriate

to consider those benefits as wages.92 Thus, a workfare workers benefits should be

considered wages as long as they are compelled to work in order to receive the

benefits. ChichesterandPatterson both recognize that workfare workers are employees

and both should be followed in cases involving the NLRA.

89Id.90Id. at 777.91Id.92Idat 777-778. The court found that the benefits Fox received after his injury were not wages since hewas no longer working in order to receive them.


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P. 21/21Conclusion

In conclusion, coverage under the NLRA is an important component of making

work pay.93 The NLRB decisions ofBoston Medical Centerand New York University

show that the NLRB is first asking whether work is being performed. If the Boards

answer is yes, the Board has shown a reluctance to let other considerations take the

worker out of the ambit of the NLRAs protection. Medical residents gain valuable skills

in the course of their residencies but are still covered by the NLRA; the fact that workfare

workers may gain skills in the course of their employment does not exclude them from

the NLRAs coverage. The analysis underlyingBoston Medical CenterandNew York

University is applicable to workfare workers and bodes well for their inclusion among the

employees given the right to unionize under the NLRA. Additionally, the workers

compensation cases ofPatterson and Chichesterrecognize that workfare workers are

employees for purposes of workers compensation statutes; combined with the Boards

analysis inBoston Medical CenterandNew York University these cases lend strong

support to the conclusion that workfare workers are employees for purposes of the

NLRA.

93Kevin M. Ryan,Reshaping the Welfare Debate: the Poor People's Labor Movement, 10 AM. U.J. GENDERSOC. POL'Y & L. 41, 45 (2001).

gov bens paper 10 9-30-02 updated

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