Organizing and Litigation: Joint Strategies to Secure Protections for Workfare Workers
One of the more distressing trends to emerge since the 1996 passage of the federal welfare law is the increased reliance on workfare as a key component of many states’ welfare-to-work activities. Workfare refers to those activities that require a welfare recipient to provide labor in exchange for a cash grant, food stamps, or in-kind assistance and includes Community Work Experience and similar programs. Workfare is currently a major component of the welfare-to-work programs in New York, California, Ohio, Florida, Massachusetts, Wisconsin, New Jersey, and Colorado. For now other states, such as Michigan, appear to have decided to avoid workfare altogether or to implement it only minimally.
This article examines several important developments in the responses of welfare organizers and lawyers to workfare and highlights the importance of collaboration between them, both to prevent the assignment of individuals to workfare and to minimize its worst harms. The discussion focuses on recent examples to show how litigation can and does support organizing efforts around workfare, but it is not an exhaustive review of the collaboration on these issues. The Welfare Law Center is interested in learning about other success stories for future reports.
Preventing Assignment of Individuals to Workfare
Advocates have devoted considerable efforts both to protecting recipients from being assigned to workfare in the first place and to insuring that recipients are assigned only to those workfare jobs that are most likely to match their abilities and preferences.
Efforts in New York City have succeeded in preventing inappropriate workfare assignments for persons with physical and/or mental disabilities. In April 1998 public assistance recipients with such disabilities won class-wide preliminary relief which required New York City to assign welfare recipients only to workfare assignments which are within their limitations. The case, Mitchell v. Turner, was brought by the Legal Aid Society of New York. It is now on appeal, and the injunction has been stayed while the appeal proceeds.
The Mitchell litigation supports efforts by workfare organizers to protect welfare recipients with disabilities who are clearly unable to do the work assigned them. A tragic and highly publicized incident in which a woman previously determined by the City to be disabled suffered a fatal heart attack after being assigned to strenuous outdoor work showed the magnitude of the problem. Her example served as a rallying cry for organizers seeking to highlight the costs of New York City’s rapid expansion of workfare. TheMitchell plaintiffs were able to build upon the public outcry generated by the organizers’ efforts and secure important victories for disabled workfare workers in the courtroom.
Education issues have also created a fertile battleground for co-operation among organizers, educators, and lawyers. In 1996, the Welfare Law Center, the Legal Aid Society, and Davis Polk and Wardwell won preliminary relief in Davila v. Turner, a challenge to the City of New York’s practice of assigning virtually all TANF parents to workfare. The court required the City to follow state statutory protections and to conduct assessments of single TANF parents and assign them only to those activities that are consistent with their assessments and, to the extent possible, their preferences. Plaintiffs contend that the City has not complied and recently filed a contempt motion.
Contemporaneous with the Davila litigation, a broad coalition of organizers and advocates lobbied the New York State legislature to include protections for education in pending welfare legislation. The lobbying occurred against the backdrop of news reports about the litigation which included descriptions of individual plaintiffs’ efforts to complete education programs that would lead to employment.
These lobbying efforts paid off. For example, the New York State Welfare Reform Act of 1997 retains the local district’s obligation to conduct assessments and honor preferences to the extent possible in assigning TANF recipients to work activities. The law also preserves the provision barring reassignment of a recipient enrolled in education or training at the time of call-in to a different work activity unless there is a new assessment.
The law also added significant protections for general assistance recipients, who can be assigned to workfare regardless of their preference. Localities must determine whether a general assistance recipient is in post-secondary education. If the recipient is, the locality must make a workfare assignment that is physically located on or near the school facility and that will not conflict with the student’s class hours insofar as possible.
The successes achieved for college students on public assistance have come about through the hard work of groups such as the Welfare Rights Initiative (WRI) and the Welfare Reform Network (WRN). WRI, an organization of public assistance recipients attending the City University of New York (CUNY), has been an effective voice for students on welfare and has worked closely with the CUNY administration to preserve maximum protections for these students.
WRN is a coalition of advocates, service providers, organizers, educators, and individuals. Its College Task Force was instrumental in institutionalizing college as an option for public assistance recipients before passage of the federal welfare law. Since then, the College Task Force has continued its leadership role in protecting the ability of public assistance recipients to attend college. It has advocated for political change and various members have actively supported the litigation by providing information and producing witnesses.
Future issues of Welfare News will report on the struggle to preserve education and training for TANF recipients, focusing on successful strategies and the groups behind those strategies.
Minimizing the Harms After Assignment to Workfare
Opportunities for collaboration among litigators, organizers, and policy advocates also arise after TANF recipients are assigned to workfare. The struggles around pay equity and safe working conditions in New York City and other parts of the country show how multiple strategies can be played out simultaneously to address a problem.
Calculation of Hours. In 1996 the Welfare Law Center, together with the National Employment Law Project and the Legal Aid Society, sued to compel New York City to calculate workfare hours by dividing the cash assistance grant and food stamp grant by the wage prevailing in the regular marketplace for the work performed. In Brukhman v. Giuliani, plaintiffs merely sought compliance with then existing state statutes guaranteeing the use of the prevailing wage to calculate workfare hours.
The effort initially succeeded with the trial court granting a class-wide preliminary injunction. Unfortunately, after the court ruling and before the City submitted its plan to recalculate the hours of tens of thousands of workfare workers, the state legislature repealed the law upon which plaintiffs prevailed. The new law requires localities only to use the minimum and not the prevailing wage. In September 1998, an intermediate appellate court reversed the lower court’s ruling. The court relied on the change in law and also rejected plaintiffs’ state constitutional claims. Plaintiffs are appealing.
At first glance, the litigation might seem unsuccessful in that the legislature took away the basis upon which the winning court decision had been secured. However, Brukhman was and is part of a broader twofold strategy to establish that workfare is work deserving of respect and to empower the organizing movement. In these respects, the case has been an unqualified success. First, it has served as a platform for further involving organized labor in the workfare struggle. The case highlighted that the erosion of wages for any worker is an erosion of wages for all workers. Organized labor responded to the threat and was able to use the information acquired in the court proceeding to support its campaign to have workfare workers treated as regular workers in other respects. In addition, city and statewide public labor unions and labor coalitions have submitted friend of the court briefs.
Second, welfare organizers have seized upon the inequities in treatment of workfare workers, many of whom perform work identical to that of regular city workers, to help focus the debate. To succeed, organizers and advocates must get public officials, the media, and workfare workers themselves to understand that they are not doing “make work” or merely learning basic life skills, but are engaged in serious work that provides a valuable benefit to the community. The Brukhman litigation brought out stories of workfare workers performing work including electrical repairs in public buildings, painting and plastering, building fences in public parks, and replacing clerical workers at City agencies. The extensive factual record submitted to the trial court and the court’s detailed decision make clear for advocates, organizers, and their supporters that workfare workers are not only welfare recipients, but also are workers exchanging a valuable commodity – their labor – for the cash assistance and food stamp grants.
Another victory occurred recently in Ohio after a public assistance recipient struggling to build an effective welfare rights organization in Northwestern Ohio contacted the Welfare Law Center through the Internet. She reported that her county was violating federal wage laws and requiring recipients to work at workfare jobs for less than the minimum wage. The Welfare Law Center joined together with the Ohio-based Equal Justice Foundation and threatened to sue the county and the state. The county and state quickly backed down and rescinded the policy. The organizer achieved the desired result and, therefore, was empowered to continue the struggle. She has continued to build an organization and to work with the Center and the Equal Justice Foundation to combat other workfare inequities in Ohio.
Securing health and safety rights. Workfare workers often work under the most horrendous conditions. They are frequently compelled to labor without personal protective safety equipment, to handle hazardous materials, to work without access to toilets or to drinking water, and are deprived of basic health and safety training. Workfare workers who seek to complain are often threatened with termination from the worksite and consequent termination from public assistance and food stamps.
In New York City, this problem created an ideal opportunity for organizers and litigators to work together around a common grand strategy of improving the working conditions of workfare workers. In 1996, at least five of the groups organizing workfare workers began a multifaceted strategy of exposing the inhumane working conditions and empowering workfare workers to press for improved conditions. Initial worksite actions and demonstrations at the main offices of city agencies responsible for the work of the workfare workers helped to bring the issue to the attention of the media and to wrest concessions such as work gloves and bathroom breaks from some worksites.
In early 1997, to solidify and expand upon these early successes, the Welfare Law Center and the National Employment Law Project and the New York Legal Assistance Group, filed a class action, Capers v. Giuliani, on behalf of workfare workers assigned to clean streets for the City. These particular workers were selected because they consistently encounter the worst conditions. The suit sought to enjoin the City from placing any workfare workers in these assignments until the workers were provided with necessary training, personal protective equipment, and access to water and bathrooms.
Joining about a half a dozen individuals as plaintiffs were two of the groups organizing workfare workers – ACORN and Community Voices Heard. (For more about these groups see the March 1998 and December 1997 issues of Welfare News or the LINC Project Web Site at www.lincproject.org.) The involvement of the organizational plaintiffs served several key purposes. First, it provided the court with plaintiffs who spoke for the thousands of workfare workers who were experiencing unbearable working conditions. Second, it provided a focal point for the media, public officials, and labor and other allies. As dramatic as the plight of the individuals may have been, the involvement of these two widely respected groups lent the claims great credibility.
Finally, the filing of the litigation enabled the organizers to point to an additional and powerful step that the organizations were taking to address the needs of its members. The organizers could correctly note that the litigation was a collective action taken by the membership in support of a broader strategy of achieving safe worksites. Direct involvement of members was crucial to their embracing the litigation as part of the strategy. Member leaders in the organizations made litigation decisions in consultation with counsel, members provided affidavits and testimony, and still other members spoke at press conferences and testified before legislative bodies.
The lawsuit was a success merely by being filed. The graphic testimony of individual plaintiffs and the CVH’s and ACORN’s witnesses is galvanizing. These witnesses painted a vivid picture of workers laboring under barbaric conditions. The court was horrified that workfare workers were forced to do without basic amenities such as drinking water and access to a toilet for hours at a time. Other workers were forced to handle animal carcasses and urine soaked mattresses with their bare hands. The testimony is so moving that Harper’s magazine reprinted four of the affidavits verbatim (see the Welfare Law Center’s website: www.welfarelaw.org). The Court quickly ordered the City to stop placing any more workers in these assignments until it provided the basic protections mandated by law and common decency.
The litigation also aided the broader strategy of securing equitable treatment for workfare workers. Under the combined pressure of continuing actions by the organizers, the court order, increasing media attention, and expressions of outrage from religious and community leaders, the City began to eliminate the worst of the bad worksite conditions. Today, while some problems still exist, organizers report that conditions have improved dramatically at many sites and that workfare workers are, in many instances, receiving better treatment.
In addition, using the information gleaned from their own experiences as well as from the litigation, the organizers and their allies were able to press for important protections from the state legislature. The 1997 state welfare legislation for the first time extended to workfare workers the same health and safety protections enjoyed by other public workers by deeming workfare workers to be public employees for purposes of coverage under the state’s Public Employee Health and Safety Act. This statutory change was the basis for the intermediate appellate court’s September 1998 reversal of the lower court’s Brukhman decision. Plaintiffs are appealing. Although the statutory change provides important protections, plaintiffs seek affirmance of the lower court’s order requiring the City to determine that a worksite is safe before assigning workers to the site.
In San Francisco, POWER has worked with the Lawyers’ Committee for Civil Rights to improve the working conditions of workfare workers. (For more on POWER see the December 1997 Welfare News or the LINC Project web site at www.lincproject.org) For example, general assistance workers assigned to clean buses and trolleys were being exposed to harsh and dangerous chemicals and solvents. The strategy in San Francisco is similar to the one pursued in New York City. Advocates and lawyers pursue a variety of approaches to improve working conditions. Threats of litigation are coordinated with group actions, media blitzes, and other tactics. The results achieved have been dramatic, but constant vigilance is required.
Conclusion. With appropriate coordination, the work of public interest lawyers can play a crucial role in supporting the work of organizers. The examples above illustrate successful strategies. The rapid and pervasive spread of workfare in states with large welfare populations has helped to reinvigorate welfare rights organizing. The challenge for both public interest lawyers and organizers addressing welfare reform will be to identify mechanisms for insuring that their work is coordinated around a commonly developed strategy.