Public Benefits Legislative Testimony & Bill Analysis

” RECIPIENT IMPACT STATEMENT H.R. 30 CONGRESSMAN AUGUSTUS HAWKINS MARCH, 1987 A bill to appropriate over 500 million of dollars for state welfare agencies to operate work programs for AFDC recipients. PUBISHED BY: Coalition of California Welfare Rights Organizations 1900 \”K\” Street, Suite 203, Sacramento, CA 9S814- Telephone- 916-442-2901 OVERVIEW H.R. 30- Congressman Augustus HawkimJ H.R. 30 would amend those sections of the Social Security Act pertaining to the WIN and WIN Demonstration Program to establish federal guidelines and a federal mandate to the states to implement employment programs. Those recipients and\/or applicants for AFDC benefits who are presently required to register for work under current WIN provisions would be required to participate in the new program as a condition of eligibility. Recipients and applicants already enrolled and acquiring needed employment skills in either a vocational training program or undergraduate educational programs would be allowed to postpone participation in the new program for as long as the education or training acquired \”can reasonably be expected to lead to employment\”. The bill is unclear as to the method that will be used and who will decide the degree of training or education that \”can be reasonably expected\”. It can be presumed that the decision will be made by a county welfare worker. After registration, the participant’s know- ledge, skills, and aptitudes will be assessed; the participant will be informed, via \”counse- ling\”, of the results of the assessment. The participant will be informed as to the various services, including supportive services that are available to him\/her. The participant will then \”select\” one or more services. At a minimum, .the following sarvices should be made available to the -participant: (1) job search services; (2) educational programs, which include remediai education, basic literacy, English as a Second Language (ESL), Generai Education (GED) preparation; (3) training programs, which could include work- fare and on-the-job training; and (4) supportive services which are necessary for the successful completion of the program, e.g., transporta- tion and child care. After six (6) months in a mandatory education training or workfare assignment, the partici~ pant is then eligible to participate in subsidize employment. This on-site training will hope- fully provide sufficient training to lead to unsubsidized employment. Uncooperative participants and their families face stiff sanctions of reduced or zero benefits for a period not to exceed six (6) months. Sanctions are enforced only after the partici- pants rights to due process has been observed. The due process requirements are found in the federal WIN conciliation provisions, state law and state administrative regulations. HR 30 features the same catch-22 situation that the California workfare program contains. A recipient who lacks a child care provider is unable to accept full-time unsubsidized employment because a child care slot is not available. Nevertheless, that same person is required to participate in the pro- gram. If quality, affordable, and licensed child care were made available to AFDC recipients, this would enable them to find unsubsidized employment without the help of \”WIN\” or other similar expensive programs. Transportation is another catch-22 problem. The same considerations generally apply to this problem as with the child care problem. SECTION-BY-SECTION AN AL YSIS 4 3 0- Purpose of the Program SUMMARY OF THE PROVISION This section outlines the purpose of the program, i.e., to provide persons with services so they can become self-sufficient by obtaining employment. ANALYSIS OF THE SECTION AND RECIPIENT IMPACT STATEMENT The basic problem that recipients face in some of these programs is that they are required to participate in various training and educational programs which train people in employment fields where there are no demands either for new employees or for replacement employees Training people for non-existent jobs is like \”closing the barn door after the horse has escaped\”. It is a waste of time and effort with little or no return of profit. People must be trained in skills which are currently marketable. POSITION No position RECOMMENDATION None. -2- 43 l(a)- Program Goals SUMMARY OF THE PROVISION This section sets forth the reasons for the program. It would reduce the depen- dency on welfare and other public assistance programs; assist recipients in obtaining jobs; increase the family income and retain employment for a substan- tial period of time. ANALYSIS OF THE SECTION AND RECIPIENT IMPACT STATEMENT We hope that this can be done. But in light of the high unemployment rate in the U.S.A . and the continued refusal of the government to enforce the Humph- rey-Hawkins full-employment bill, we do not see this to be an achievable goal. POSITION Support RECOMMENDATION None -3- 43l(b) through (d)- Criteria for Evaluation of the Program and Establishment of an Advisory Committee to Advise the Secretary to Develop the Evaluation Criteria SUMMARY OF THE PROVISION This section would require the Secretary to evaluate each state’s program and give incentive payments to a state when it incorporates the goals in 43l(a) and meets the performance standards. The Secretary will also be required to set up an advisory committee to develop the performance standards. The committee will be composed of state agency representatives, State job training coordinating councils, labor organizations, educational agencies, and organizations representing eligible participants. ANALYSIS OF THE SECTION AND RECIPIBNT IMPACT STATEMENT The four (4) evaluation criteria set forth in 43l(a) are not objective. The first calls for reducing dependency on welfare and other public assistance programs. This goal has generally been achieved through witholding aid from families for up to six (6) months. Prior to this bill, states had no incentive to sanction recipients. With this section, states would have a financial incentive to sanction AFDC recipients, because it would enhance dollars for workfare bureaucrats. POSITION Support if amended. RECOMMENDATION Amend 431(c) to read: \” (c) In determining the extent to which reduced dependency on welfare and other public assistance has been achieved, savings obtained from reduced welfare grants or from closed cases, or both, shall be taken into account, provided such reduction of rants or case closures were due to obtainin em lo ment as a direct conse uence of their artici ation in such ro rams.\” The underlined language represent the proposed changes . -4- 432- Allocation of funds SUMMARY OF THE PROVISION This provision provides that 95% of the funds shall be allocated to the states who have submitted an approved plan. The remaining 5% of the funds can be used for technical assistance and planning activities. ANALYSIS OF THE SECTION AND RECIPIENT IMPACT STATEMENT The major problem with this section is that it does not specify the percentage amount of money which will be used for program administration, the percentage amount which will be used for services and the percentage amount which will be used for supportive services. Experience has shown that most of the money will be used for administrative expenses and very little will be used for training and supportive services. POSITION Support, if amended. RECOMMENDATION Limit administrative expenses to 50% of the allocated funds and provide that at least 25% of the funds shall be used for supportive services, such as child care and transportation. -5- 433(a) and (b)- State Designation of State Agency to Operate the Program SUMMARY OF THE PROVISION This section provides that each State shall submit a state plan. The state plan shall designate either the state welfare agency or the state employment agency to be the single state agency responsible for the operation of the program. This designation shall be based upon a determination as to which agency has the greater capacity for administering the overall program direction designed to meet the employment and training needs of eligible participants of WIN Program. ANALYSIS OF THE SECTION AND RECIPIENT IMPACT STATEMENT This section would allow the state, with little justification, to appoint the state welfare agency as the single state agency to operate the WIN program. Appointing the ”welfare department\” to develop employment opportunities when an employment development agency already exists for that very purpose is duplicative. Moreover, it could lead to a double standard where employers in need of cheap labor will call the welfare department, while employers with better paying jobs will call the State employment agency. POSITION No position. RECOMMENDATION We recommend that the State employment agency be responsible for the opera- tion of the program. 433(c)- State County Plan Assurances This section outlines the various assurances that the state plan must contain. They are: (1) Identifying the State agency which will be the single state agency responsible for \u00b7 the administration of the program; (2) Describing the \u00b7services that will be provided and t he methods and priorities to be used in the allocation of services; (3) Stating that the state plan should be coordinated with the JTPA pro- gram; (4) Identifying resources needed to meet the federal matching require- ments; \u00b7 (5) Naming the procedures that the state will use to select service provi- ders; (6) Providing assurances that the services given to recipients do not dupli- cate existing services; (7) Providin g assurances that the funds available under this part will not be used, directly or indirectly, to support any mandatory workfare program; (8) Describing the services to be provided in the various parts of the state; (9) Stating assurances that supportive services, such as child care for children will be provided \”during such times as their parents are participating in activities\” of this program; and (10) Providing other information that the Secretary may request. ANALYSIS OP THE SECTION AND RECIPIENT IMPACT STATEMENT This detailed information would assist AFDC recipients in knowing what services they will be available through the program. The only problem is that child care services are limited to the time period that the participant is in the program. The state is not required to make an initial determination as to whether the parent requires child care assistance prior to the \u00b7 parent participating in the program. This bill is self-defeating. The goal of this bill is to assist recipients in obtaining full-time employment. Yet, without child care funding, recipients cannot maintain full-time employment. Therefore, funding expensive educational and training programs without providing adequate child care squanders money and other limited resources. The more efficient solution would be to require the state agency to determine whether the parent has child care available to him or her should he\/she find fulltime employment prior to being enrolled in the program. The following is an actual example of a complaint by a WIN client. Mrs. S. was told to report to WIN. She did so. She was told that she had to do a 13-week job search assignment as a condition of eligibility for AFDC. After looking for work for about a week, she found a job. She called her WIN worker, and told her that she had found a job. She also told her WIN worker that she did not have child care and that without child care she could not take the job. Her worker referred her to the local child care resource center. They told her that they have a long waiting list for child care. When she called her worker, her worker told her that she did not have to take the job and she would not be sanctioned (refusal to accept employment due to lack of child care is considered good cai:se). -1 – She then asked her worker: \” What do I do tomorrow? \” Her worker responded: \”You continue to look for work until your job search period is over\”. Mrs. S. was confused and she asked: nwhy do I continue looking for employment, when I’ve already found one job and had to turn it down.\” Good question. There is no logical answer. I raised this issue with the state workfare operators. Their response was that clients have to do the required number of weeks of job search, even if they have no child care when a job is offered. This bill would not remedy this situation. POSITION Support, if amended. RECOMMENDATION The state agency shall make a determination that the participant has actual child care available. This determination shall be verified by the state agency, when the participant obtains full-time employment during customary hours of employment for that community. Proposed language for legislation: On page 14, betwen line 2 and 3 insert: \” No person shall be required to participate without receiving necessary child care services. For the purposes of this section \”necessary child care services\” shall mean that each participant shall be given a certificate of licensed child care entitlement. Such certificate shall specify the location that the participant can obtain child care services at any time they need it. This shall mean anytime the participant is offered a job or the participant has a need for child care they shall be able to obtain child care services from the location specified on their child care certificate.\” -8- 433(d)(e) and (f) – State Plan Aeproval Process SUMMARYOFTHEPRO~ffiON This section provides that the state plan shall be published and a public hearing shall be conducted 30 days prior to submitting the plan to the Secretary. The Secretary shall either approv e or disapprove the state plan within 45 days after receiving it. ANALYSIS OF THE SECTION AND RECIPIENT IMPACT STATEMENT This process allows the community to voice its recommendations and concerns, which has not been true for prior Win-Demo plans. The bill can promote more meaningful community participation in the planning process. During normal Win Demo hearings, members of the committee merely listen to the views of the poor without actually considering the recommenda- tions. This practice will only be stopped by a federal mandate stating that the views of the poor shall be considered. POSITION Support. RECOMMENDATION . Require that the plan incorporate the concerns expressed at the public hearings and actions taken thereon in the state plan. -9- 434- Matching Requirement SUMMARY OF THE PROVISION This section sets forth the state matching amounts for federal funds. ANALYSIS OF THE SECTION AND RECIPIENT IMPACT STATEMENT None. POSITION Support. RECOMMENDATION None . -10- 4 3 5- Allocation of Services SUMMARY OF THE PROVISION This section provides that each eligible participant shall first be evaluated during the intake process. During the intake process, the state agency shall review the participant’s work history, educational background and other skills. The participant will be told of the various available services under this program. Each \” … eligible participant will then select one or more of the services … \” Six months after program registration, if the participant is not participating in one of the components, the state agency shall contact the participant and off er the participant the right to select among one of the available components. ANALYSIS OF THE SECTION AND RECIPIENT IMPACT STATEMENT This section is a major breakthrough in that for the first ti me the selection of the component would not be made by the workfare officials. Welfare recipi- ents would be encouraged to select the component in which they want to parti- cipate. This is the first step to\”wards actual independence. Most work programs only pretend to promote independence for welfare recipients. Are we to believe that the state workfare officials teach clients independence by telling them what, where, when, and how to act. It is our view that the best way to overcome \”welfare dependency\” is by allowing welfare recipients to learn independence by actual practice; namely, by allowing the participant to select his\/her program component. Although the intent of this section in allowing recipients to select a component is very clear, it is always subject to manipulation by state workfare officials. A classic example of this is the food stamp program when the operators denied food stamps to households who do not have an address. Although the federal regulations were extremely clear, homeless persons were still denied food stamps because they did not have an address. Congress had to pass another law in 1985 to insure that the state food stamp administrators did what the law required them to do. Workfare officials resent g1vmg any power to welfare recipients. This is the major reason why they want a mandatory program. To insure that the state workfare officials are not allowed to subvert the intent of this law, it would be better that the participant be allowed to select the component without the interference of the workfare officials as to \u00b7which com- ponent shouid be selected. Moreover, in workfare programs, the participants are told that they have to cooperate with the workfare officials or face severe workfare sanctions. Thus, most recipients would select the component which was suggested by the workfare officials. RECOMMENDATION Amend 435(a)(2) to read: -11- 11Each eligible participant shall be mailed a document outlining all of the services including supportive services available under section 436. The participant shall select one of the services available under section 436 and return the document to the state agency within 10 working days. If such service is not available, then participant shall be placed on component waiting list.\” We understand that the American Public Welfare Association (APWA) and other workfare administrator organizations have indicated their opposition to this concept because they are concerned that some clients may be illiterate and they would not able to complete the form. It is our position that such con- cerns are hypocritical. These concerns are only expressed to mask the true objective of keeping the welfare recipient dependent on them. APW A and other welfare-administrator organizations representing welfare program-operators have required that all welfare recipients be mailed a monthly income report. This income report has to be completed and returned to the welfare worker within 10 days. If the AFDC recipient fails to complete and return it, then the entire family will have their livelihood, AFDC benefits abruptly terminated, even if the AFDC recipient is illiterate. Based on this, we believe such concerns expressed by APWA are self-serving and unrealistic. -12- 4 3 6(a) – Types of Services that State Shall Provide to Eligible Participants This section sets forth the various available services to participants of the WIN program. Included is an array of services, such as, job search services, educational programs (e.g., basic and remedial education, literacy training, bilingual education, and preparation for obtaining a certificate of high school equivalency), necessary supportive services, institutional job-skills training, work experience, programs developing work habits which facilitate obtaining and retaining employment, and on-the-job training. ANALYSIS OF THE SECTION AND RECIPIENT IMPACT STATEMENT We are delighted that AFDC recipients are provided with such a wide range of choices. We are disappointed however, that educational services go no further than obtaining a high school equivalency certificate. With all of the programs that the House Education and Labor Committee autho- rizes, it seems logical that welfare recipients should have an opportunity to embark upon the road of higher education in order to become self-sufficient. This is especially true when considering that a post-secondary education is now required in order to obtain employment other than minimum wage employ- ment. POSITION Support, if amended. RECOMMENDATION Add post-secondary education as one of the services that the participant can select. -13- 436(b)to end- Program Component s and Education. SUMMARY OF THE PROVISION This section provides that in addition to the various services set forth in 43 6(a), the state agency may also provide \”transitional employrnent 11 services. Supportive services, such as child care and transportation, rnay be provided for a maximum of six months to the participant after entering unsubsidized employment. Any person attending an accredited post-secondary institution shall be allowed to complete this education, provided that the training can reasonably be expec- ted to lead to employment and the participant is making satisfactory progress in the program. Any person completing his or her participation in any component shall not be required to participate in the same or similar component. ANALYSIS OF THE SECTION AND RECIPIENT IMPACT STATEMENT This section recognizes for the first time that AFDC recipients should be allowed to complete a program which they have started. We have witnessed many AFDC recipients who started college while their children were under the age of six years. When their youngest child reached the age of six, the welfare worker forced them to drop out of their educational program. AFDC recipients are then saddled with student loans which can exceed thousands of dollars which the recipient\/student has to repay even though the \”government\” refused_ to allow them to complete their- education. This section contains one big loophole. This section requires that the participant prove that he\/she can reasonably be expected to find employment as a result of completing such education. Most states will implement this caveat by requ- iring that the participant provide verification from an employer that he or she is guaranteed a job upon completion of the educational program. Failure to provide such verification constitutes confirmation that he or she cannot reasonably be expected to obtain employmenL In the SSI Disability Program, there is a standard to determine whether the disabled person can find gainful employment. H.R. 4986 should adopt the SSI disability standard as the criteria for determining what job a person can reaso- nably be expected to obtain upon completion of his or her college or training program. Subsection {e) is designed to stop recycling ciients through the program, but it is very limited. This section only prohibits the state agency from requiring a participant to repeat the \”same or a similar component. This loose language produces another large loophole which allows the state to recycle recipients through the various components of the program. -14- POSITION Support, if amended. RECOMMENDATION 1. Subsection (d) should be amended to read: \”(d) An individual who currently attends an accredited post-secondary institution or a training program shall be deemed to be satisfactorily participa- ting under this provision and need not participate in any other program acti- vity .\” OR \”(d) An individual who currently attends an accredited post-secondary educational institution shall be deemed to be participating satisfactorily under this section. The individual would not be forced to participate in any other component. This bill would use the same employment standards as provided in the disability section of the Supplemental Security Income Act. This would insure that participants would be allowed to complete the education or training that they have started. For many, this is the first step towards being a responsible and independent person. When government disallows a person to finish what they have begun, how can they expect a person to become responsible and independent? 2. The second major problem is in subsection (e) which limits the prohibition for the recycling of participants through the program \”to the same or a similar program\”. We support a program which allows the participant to select a component and participate therein. Once the participant has completed the component, then he\/she should be finished with the program, unless the participant wishes to voluntarily participate in another component program. -15- 437- Transitional Employment SUMMARY OF THE PROVISION This section provides that any participant who has participat\u20acd in any of the services for a period of six months shall be entitled to receive transitional employment (for wages) for a period not to exceed one year with either public or private nonprofit employers. ANALYSIS OF THE PROVISION AND RECIPIENT IMPACT STA’rEMENT We are delighted that welfare recipients will be able to get a job that actually provides a paycheck and not merely a welfare check. There is concern that local government may abuse this program in order to acquire free labor. After the year is terminated, the recipient may be forced to return to AFDC. POSITION Support. RECOMMENDATION We would suggest that public agencies only be allowed to participate in this program if they can guarantee that the participant will have full-time employ- ment upon completion of the program. -16- 438- Conciliation Prior to Termination SUMMARY OF THE PROVISION This section provides that before a participant is found to have failed to coope- rate or participate in the program without good cause, he or she shall be given a notice of intent that the county plans to make such determination. When the first failure to cooperate without good cause occurs, there shall be no final determination prior to the individual having an opportunity to discuss thereasons for the lack of cooperation and to propose options with the goal of continuing in the program under this part. ANALYSIS OF THE SECTION AND RECIPIENT IMPACT STATEMENT This section codifies existing WIN Handbook requirements of conciliation prior to making the final determination that the participant has failed to cooperate or participate in the program. Conciliation, as currently provided in the WIN program, has not been very effective. There are many reasons for this: 1. Clients are not notified that conciliation would resolve the problem and could avoid being sanctioned. 2. The notice does not specify what the problem(s) were and what specific action(s) the participant must take to achieve conciliation. 3. Participants are forced to accept the conciliation plan offered by the State agency and have no opportunity to offer their own conciliation plan. 4. There is no requirement that the notice must explain what constitutes \”good cause\”. 5. There is no requirement that the notice inform the participant where they can obtain legal assistance in negotiating a conciliation agreement with the state agency. 6. There is no requirement that the state agency inform the participant that they have successfully completed the conciliation plan. Many states use the conciliation process as a means of placing participants on \”probation\”. For example a participant fails to keep one appointment. The proposed conciliation plan is that the participant shall keep all appointments and do all things that the State agency tells them to do. If they fail to keep an appointment, even with good cause, they are sanctioned because they violated their \”probation\”. This type of state agency abuse can break up a family and cause irreparable harm to the children of the family. The purpose of the AFDC program is to provide assistance to children. Many state welfare agencies act that the purpose of the AFDC program is to punish the children for what their parents do, which most people call. \”child abuse\”. RECOMMENDATION Amend 438(a) to read: (a) Prior to a determination pursuant to section 402(a)(l 9)(F) that an -17- individual has refused to participate under this part without good cause, the State agency shall exhaust all efforts towards conciliatory resolution of the dispute before a final determination is made in a first instance. The state agency shall inform the individual, in writing, the following: (a) What constitutes \”good cause\” when notifying the individual that an issue exists concerning his or her refusal to cooperate or \u00b7participate. (b) The notice shall clearly specify the action(s) that resulted in the unresolved issue. (c) A proposed conci- liation plan, which shall be directly related to the issue(s) for which the notice of intended deregistration is going to be issued. (d) Inclusion of the names and addresses of the local legal aid and welfare rights office, if any, who can assist the individual with conciliation. The purpose of this effort is to encourage the participant to continue in the program under this part. The conciliation efforts shall last no more than 30 days. If the individual refuses to meet the conditions of the conciliation plan without good cause, the state agency may terminate the plan earlier. Upon meeting the agreed conciliation plan, the state agency shall inform the participant of his or her successful completion of the plan in writing.\” -18- ”

” Berkeley Journal of Gender, Law & Justice Volume 3 | Issue 1 Article 3 December 1987 California’s GAIN: Greater Avenues or a Narrow Path – The Politics and Policies of Welfare Reform and AFDC Work Programs in the 1980s Ann VanDePol Katherine E. Meiss Follow this and additional works at: https:\/\/scholarship.law.berkeley.edu\/bglj Link to publisher version (DOI) http:\/\/dx.doi.org\/https:\/\/doi.org\/10.15779\/Z38Q86S This Article is brought to you for free and open access by the Law Journals and Related Materials at Berkeley Law Scholarship Repository. It has been accepted for inclusion in Berkeley Journal of Gender, Law & Justice by an authorized administrator of Berkeley Law Scholarship Repository. For more information, please contact [email protected]. Recommended Citation Ann VanDePol and Katherine E. Meiss, California’s GAIN: Greater Avenues or a Narrow Path – The Politics and Policies of Welfare Reform and AFDC Work Programs in the 1980s, 3 Berkeley Women’s L.J. 49 (1987). https:\/\/scholarship.law.berkeley.edu\/bglj?utm_source=scholarship.law.berkeley.edu%2Fbglj%2Fvol3%2Fiss1%2F3&utm_medium=PDF&utm_campaign=PDFCoverPages https:\/\/scholarship.law.berkeley.edu\/bglj\/vol3?utm_source=scholarship.law.berkeley.edu%2Fbglj%2Fvol3%2Fiss1%2F3&utm_medium=PDF&utm_campaign=PDFCoverPages https:\/\/scholarship.law.berkeley.edu\/bglj\/vol3\/iss1?utm_source=scholarship.law.berkeley.edu%2Fbglj%2Fvol3%2Fiss1%2F3&utm_medium=PDF&utm_campaign=PDFCoverPages https:\/\/scholarship.law.berkeley.edu\/bglj\/vol3\/iss1\/3?utm_source=scholarship.law.berkeley.edu%2Fbglj%2Fvol3%2Fiss1%2F3&utm_medium=PDF&utm_campaign=PDFCoverPages https:\/\/scholarship.law.berkeley.edu\/bglj?utm_source=scholarship.law.berkeley.edu%2Fbglj%2Fvol3%2Fiss1%2F3&utm_medium=PDF&utm_campaign=PDFCoverPages http:\/\/dx.doi.org\/https:\/\/doi.org\/10.15779\/Z38Q86S mailto:[email protected] California’s GAIN: Greater Avenues or a Narrow Path? The Politics and Policies of Welfare Reform and AFDC Work Programs in the 1980s. Ann VanDePolt Katherine E. Meisst INTRODUCTION In late 1985, the California Legislature enacted a major welfare reform measure-the Greater Avenues for Independence program (GAIN).’ GAIN is a mandatory work program ostensibly designed to help move adults receiving Aid to Families with Dependent Children (AFDC)2 into the labor force while reducing AFDC costs. It provides education, job search, and workfare3 for participants. A compromise t B.A. 1972; Ph.D., Sociology, 1983; J.D. 1987; University of California, Berkeley. I Legal services attorney, Legal Aid Society of Alameda County. Kate has ten years of experi- ence doing welfare advocacy. In 1982 and 1983, as a staff attorney for the Western Center on Law and Poverty in Sacramento, she participated in legislative public policy debate on welfare reform. Since 1985, she has served on the Alameda County GAIN Advisory Council, and is co-chair of the Council’s Employment and Training Subcommittee. I Greater Avenues for Independence Act of 1985, ch. 1025, 1985 Cal. Stat. (codified at CAL. WELF. & INST. CODE 11320-11320.9 (Deering Supp. 1988)). 2 42 U.S.C. 601-615 (1983 & Supp. 1988). Established in 1935 as Title IV of the Social Security Act, AFDC today provides cash assistance to families with children deprived of parental support due to the \”death, continued absence from the home . . . or physical or mental incapacity of a parent . . .\” Id. 606 (1983). 3 It is important to distinguish workfare from other employment strategies and job training programs. Workfare is a program in which people who receive benefits are required to work without pay as a condition of receiving those benefits. The work is usually in public service or non-profit organizations. Traditionally, workfare jobs have been make-work activities, such as maintenance of buildings or grounds, and have not offered significant skills training. Good- win, Can Workfare Work?, J. PUB. WELFARE, Fall 1981, at 19, 20-21. Participants are not employees and therefore are not usually entitled to sick leave, vacation, worker’s compensa- tion and other benefits. Sklar, Workfare.- Is the Honeymoon Over-Or Yet to Come?, J. PUB. WELFARE, Winter 1986, at 30, 31. For a thorough discussion of traditional workfare pro- grams and GAIN’s workfare provisions, see C. McKeever & M. Greenberg, False Premises, False Promises: A Critique of California’s Greater Avenues for Independence (GAIN) BERKELEY WOMEN’S LAW JOURNAL BERKELEY WOMEN’S LAW JOURNAL measure, GAIN combines liberal elements such as employment training, education, and the provision of childcare with punitive, repressive com- ponents such as workfare and sanctions for noncompliance. Because of the national trend emphasizing work-for-welfare pro- grams, it is imperative that individuals who are concerned about the problems of low-income women and children begin to incorporate advo- cacy in this area into their broader political work. It is important that AFDC work programs not be promoted falsely or oversold.4 Although GAIN and other programs may help some individuals move out of pov- erty, they will neither eliminate the need for AFDC nor necessarily pro- vide a job paying a living wage to everyone wishing to work. In fact, individuals working under welfare employment programs may bring home less income for their families than the already minimal amount of an AFDC grant. This Article offers a critical assessment of the GAIN program in terms of its express goal of providing meaningful employment opportuni- ties for individuals receiving AFDC. We also examine the current social and political climate which now heartily greets GAIN and other AFDC employment measures. We analyze the GAIN program critically in terms of specific features which either assist or harm low-income fami- lies. In so doing, we intend to stimulate debate among feminists concern- ing the imposition of mandatory AFDC work requirements and specific provisions needed to make education, job training, and employment pro- grams effective.5 Finally, we explore the legal consequences of GAIN, reviewing relevant litigation and suggesting alternative strategies for pro- moting the interests of the program’s participants. Workfare Program (1987) (unpublished paper, Western Center on Law and Poverty, Sacra- mento, Cal.). 4 For instance, the Massachusetts Employment Training Program (ET), MASS. REGS. CODE tit. 106 307 (1988), which was a precursor to GAIN, has been highly praised, especially by some liberals and some welfare advocates. Savner, Williams, & Halas, The Massachusetts Employ- ment and Training Program, 20 CLEARINGHOUSE REV. 123 (1986). To some degree, this has resulted in a softening of traditional opposition to workfare and mandatory work programs. In this way, ET contributed to GAIN’s passage. Although statutorily a mandatory program, ET is administered on a voluntary basis. Some advocates continue to question ET’s effectiveness, especially with respect to the wages received by participants when they enter employment, the adequacy of childcare, and ET’s role in channelling women into sex-segregated jobs. Schulzinger & Roberts, Welfare Reform in the United States.- Fact or Fiction? Part , 21 CLEARINGHOUSE REV. 694, 702-3 (1987); J. Kluver, Report on the Massachusetts Employment and Training Program 4-6, 8 (1984) (unpublished paper, American Friends Service Committee, Cambridge, Mass.). 5 In 1985, about II million people (or 3.7 million families) received AFDC. The vast majority of AFDC families are headed by only one parent, usually a woman. U.S. GENERAL ACCOUNTING OFFICE, WORK AND WELFARE: CURRENT AFDC PROGRAMS AND IMPLICA- TIONS FOR FEDERAL POLICY, H.R. Doc. No. 34, 100th Cong., 1st Sess. 19 (1987) thereinafter GAO WORK AND WELFARE]. Since most AFDC work program participants are likely to be women, id., we have chosen to refer to them as women throughout this Article. We have excluded from the discussion a thorough treatment of the AFDC-U program, codified at 42 U.S.C. 607 (1983). The AFDC-U program provides cash assistance to two-parent families in which the \”principal wage earner\” is unemployed, and constitutes less than 10% of the AFDC program. GAO WORK & WELFARE, supra, at 19. AFDC WORK PROGRAMS Part I discusses the redirection in federal AFDC policymaking and the political trends underlying AFDC work programs. Part II provides an analysis of the legislative process leading to the adoption of the GAIN Statute in California. Part III is a brief description of the GAIN pro- gram. Part IV evaluates the GAIN program in detail, giving special attention to the childcare provisions and the educational and other com- ponents of the program. Part V focuses on the role of federal litigtion in the evolution of welfare work programs. I. FEDERAL REDIRECTION AND GAIN STRATEGY A. AFDC Work Programs 1967-1980 Welfare employment programs presently receive more uniform political support and target a broader population than did those of the late 1960s and early 1970s. The principal federal employment program at that time was the Work Incentive Program (WIN).6 WIN was intro- duced in 1967 in an effort to reverse or at least to limit the growth of burgeoning welfare rolls.7 In its early years, WIN (WIN I, 1967-1971) was a voluntary pro- gram, emphasizing training and employment that Would facilitate the transition from welfare to unsubsidized jobs.’ However, the 1971 Social Security Amendments9 changed the direction of the WIN program from training of self-selected individuals to immediate job placement for all nonexempt AFDC recipients. As a result, WIN became a mandatory program: all AFDC recipients who had no pre-school children or other \”barriers\” that kept them at home were required to register with the state employment service, to participate in job training or job search activities, and to accept employment offers.’ \u00b0 6 Social Security Amendments, Pub. L. No. 90-248, 204, 81 Stat. 881 (1968) (amended 1971); Id. 444(b), 81 Stat. 881 (1968) (amended 1971). 7 Zall & Betheil, The WIN Program: Implications For Welfare Reform and Jobs Organizing, 13 CLEARINGHOUSE REV. 272, 272 (1979). In the ten years prior to WIN, AFDC participation rose from 646,000 families (2.4 mil- lion individuals) to 1.2 million families (5 million individuals). S. REP. No. 774, 90th Cong., 1st Sess., reprinted in 1967 U.S. CODE CONG. & ADMIN. NEWS 2981. 8 U.S. DEP’T OF LABOR, EMPLOYMENT AND TRAINING ADMINISTRATION, IMPLEMENTING WELFARE-EMPLOYMENT PROGRAMS: AN INSTITUTIONAL ANALYSIS OF THE WORK INCEN- TIVE (WIN) PROGRAM, R&D MONOGRAPH 78, at 6 (1980). Based on a long-term strategy of overcoming employment disabilities, the early WIN program focused on \”individual job readi- ness,\” with basic education and vocational training the two largest WIN components nation- wide in 1970. See Zall & Betheil, supra note 7, at 273. 9 Social Security Amendments, Pub. L. No. 92-223, 85 Stat. 803 (1971) (current version at 42 U.S.C. 630-645 (1983 & Supp. 1988)). These amendments are frequently referred to as the Talmadge Amendments. 10 Also exempt were recipients with illness, incapacity, or advanced age; recipients remote from WIN work and training sites; children under age 16 or attending school full time; and people needed in the home to care for others who were ill or incapacitated. Social Security Amend- ments, Pub. L. No. 92-223, 3(a)(2), 85 Stat. 803 (1971) (current version at 42 U.S.C. 630- 645 (1983 & Supp. 1988)). BERKELEY WOMEN’S LAW JOURNAL Thus, in the second phase of WIN (WIN II, 1971-1981), training and other services were only provided when job placement was not possi- ble. \” Training to upgrade a participant’s skills so she could get a better- paying, stable job was generally not permitted if a less-skilled job was immediately available. This new priority attached to immediate job placement over training encouraged WIN officials to funnel participants into low-wage jobs.’ 2 Because these provisions increasingly prohibited preparation for higher paid and more stable employment, the job-entry wage paid to WIN participants noticeably declined.’ 3 Despite the official assertion in 1975 of a renewed focus on training and other supportive services,’ 4 WIN was a failure in terms of its princi- pal goal of encouraging AFDC recipients to enter the labor force and leave welfare.’ 5 WIN never fully escaped the dilemma of low-wage jobs which trapped participants into continued reliance on welfare for eco- nomic subsistence.’ 6 Because the statute equated unsubsidized employ- ment with attainment of self-support, WIN frequently tracked participants into low-wage, short-term labor positions with little oppor- tunity for self-support. ‘ Also, factors such as labor market fluctuations and the participant’s race, sex, and educational background had far more impact upon long-term employability than did WIN participation alone.’ 8 ‘ See Zall & Betheil, supra note 7, at 273. 12 Between 1972 and 1973, the proportion of WIN participants in institutional training declined from 32.9% to 11.3%, while the proportion of WIN participants in unsubsidized employment in the same period increased from 16.5% to almost 30%. Id. 13 The initial wage received by WIN participants decreased from $2.28 per hour in 1971 to $2.02 per hour in 1973, the first full year of WIN II. Low-wage placements were further encouraged by WIN regulations that require that placements pay only the minimum wage and then only where applicable; if the minimum wage does not apply (as in many jobs where WIN partici- pants have been placed), the employer need only pay \”substantially\” what similar work in that area pays so long as this wage rate is at least 75% of the federal minimum wage. U.S. DEP’T OF LABOR, supra note 8. 14 The shift in program responsibility from welfare to employment and training agencies was carried one step further in the \”WIN Redesign\” of 1975. Under this administrative restruc- turing, WIN Redesign clients registered directly with the local WIN employment and training staff at the Employment Development Department (EDD) rather than at the welfare depart- ment. Since the 1975 \”Redesign\” effort, the Labor Department has ostensibly moved toward a more \”balanced\” approach in its administration of WIN, an approach that emphasizes sup- portive services, counseling, and training in addition to placement, while improving the qual- ity of placements in terms of entry level age and job retention. Id. at 6. 15 This continued utilization of welfare largely reflected the fact that WIN placements in the private sector averaged just slightly more than the minimum wage, hardly enough to support a family. Zall & Betheil, supra note 7, at 275. 16 In 1977, approximately 50% of new jobholders continued to receive welfare payments. Id. at 274. 17 Government data in 1977 revealed that 25% of those placed were unemployed within 30 days of placement, while statistics in 1974 revealed that between 40% and 50% of those placed were out of work within 90 days. Id. at 275. 18 Researchers found a statistically significant relationship between participants’ social charac- teristics and their employment pattern and departure from AFDC. WIN participants who were younger, married, better educated, had fewer children, and had been on AFDC for fewer years had a greater likelihood of sustaining their employment and leaving AFDC than did other WIN participants: U.S. GOV’T ACCOUNTING OFFICE. REPORT BY THE COMPTROLLER AFDC WORK PROGRAMS In 1982, the Government Accounting Office concluded that the pro- gram had in effect lost its battle to combat welfare \”dependency\” since most participants did not achieve economic self-sufficiency.19 WIN placements on average produced virtually no net reduction in receipt of welfare since many participants found only limited work and continued to receive welfare. 20 Large numbers of those receiving welfare were exempt from participation because of statutory exemptions, while limited funding restricted participation of many of those who were otherwise eli- gible and limited the amount of training that could be provided. Of the approximately 1.6 million individuals who did register for the WIN pro- gram, over half were not assigned to an active program component, pri- marily because of limited funding.2′ The ineffectiveness of WIN is all the more striking because the pro- gram selected registrants on the basis of characteristics that presumably gave them the greatest chance for employment.22 As a result of this \”creaming\” process, women with few job skills and large families were not likely to be included. Rather, because WIN provided only limited childcare funds, fathers in the AFDC-U program whose wives could pro- vide care for the family’s children participated more frequently in WIN than did single mothers.23 Throughout the ’70s, there was no national consensus regarding GENERAL OF THE UNITED STATES-AN OVERVIEW OF THE WIN PROGRAM: ITS OBJEC- TIVES, ACCOMPLISHMENTS, AND PROBLEMS, H.R. Doc. No. 55, 97th Cong., 2d Sess. at iii, 26-28, (1982) [hereinafter GAO WIN]. Leonard Goodwin’s research of mothers participating in the WIN program also empha- sizes the importance of participants’ background variables. L. GOODWIN, CAUSES AND CURES OF WELFARE: NEW EVIDENCE ON THE SOCIAL PSYCHOLOGY OF THE POOR (1983). Goodwin found that the strongest predictor of the length of time parents remained on welfare was the amount of pay mothers had previously commanded in the job market: the lower the pay commanded, the longer on welfare. In addition, the lower their education and the more children they have, the longer the time on welfare. Id. at 41, 43-45. 19 See GAO WIN, supra note 18, at 19, 20-31. Indeed, the GAO report reads like an obituary of WIN in the wake of the Omnibus Reconciliation Act (OBRA) of 1981 and its new employ- ment measures. 20 Only 36% of active participants in WIN entered employment during 1980, and of those par- ticipants who got jobs, 60% were employed in low-paying jobs that allowed them to continue to receive full or partial AFDC grants. Id. at 19-21, 23. In addition, approximately half of the employed participants who continued to receive AFDC grants were not working when inter- viewed eighteen months later. Id. at 21, 30. 21 Because of budget limitations and legal exemptions from WIN, less than 20% of adult AFDC recipients participated in the program in 1980. Id. at 12-13. The Department of Health and Human Services estimated that over 60% of the adult AFDC population were legally exempt from WIN registration, mainly because they were caring for a child under six years of age. 22 WIN participants were usually selected according to the following priority system: (1) unem- ployed fathers; (2) mothers who volunteered; (3) other mothers and pregnant women under age 19; (4) dependent children and relatives age 16 or older and not in school, working. or in training; and (5) all other registrants. Participants of prime working age, with a high school education, and with prior work experience had the greatest employment potential. Id. at 18. Because of this, many participants who succeeded in finding employment might have been able to find employment without any WIN assistance. Indeed, in 1980, about 70% of the 204,000 WIN registrants who entered employment said they found their own jobs. Id. at 16. 23 See generally Law, Women, Work, Welfare, and the Preservation of Patriarchy, 131 U. PA. L. REV. 1249 (1983). BERKELEY WOMEN’S LAW JOURNAL maternal employment that would allow public assertion of the injunction that welfare mothers ought to work for their benefits. Although women, especially mothers, entered the labor force in record numbers throughout the ’60s and ’70s, this economic phenomenon had not been culturally ratified nor had it received an unqualified stamp of approval by politi- cians, welfare policymakers, or the public at large.24 In addition to the WIN program, policymakers relied upon financial incentives to encourage employment (the \”carrot\” approach), amending the federal AFDC statute to provide for the \”30 and 1\/3\” work incentive disregard, which effectively created a small bonus for those employed while receiv- ing welfare.25 Also, liberal proponents of the guaranteed annual income and Negative Income Tax experiments strongly influenced AFDC reform efforts.26 In this context, WIN competed with other reform measures such as the guaranteed annual income that did not center upon maternal employment. By the late 1970s, inflation and rising unemployment had shattered the American faith in unlimited economic growth. In this climate of eco- nomic uncertainty, welfare recipients became easy targets as voters and politicians alike searched for scapegoats and ways to trim public 24 President Nixon’s veto in 1971 of federal funds for a comprehensive child development pro- gram, including preschool childcare is indicative of negative attitudes at that time; when veto- ing the legislation, he commented: \”[F]or the Federal Government to plunge headlong financially into supporting child development would commit the vast moral authority of the National Government to the side of communal approaches to child rearing over [and] against the family-centered approach.\” Quoted in G. STEINER, THE CHILDREN’S CAUSE 113 (1976). 25 In 1967, Congress enacted the so-called \”work incentive disregard,\” which required that the welfare department disregard the first thirty dollars of gross income earned monthly, plus the next one-third of income, when calculating AFDC benefits. Social Security Amendments, Pub. L. No. 90-248, tit. II, pt. I, 202, 81 Stat. 881 (1968) (amended 1971). The effect was to decrease the amount of \”earned income\” and thereby increase overall disposable income. Without such incentive, every dollar of income reduces benefits by one dollar. 26 The Negative Income Tax (NIT) experiments were conducted by economists in four major income maintenance programs at the following sites: New Jersey and Pennsylvania (1968-73); rural areas of North Carolina and Iowa (1970-72); Gary, Indiana (1971-74); and probably the most publicized, Seattle and Denver (1970-78). In each project, an experimental group received negative income tax bene!fits, while a control group did not. Analysis of these experi- ments showed that negative income tax benefits created a work disincentive rather than inducement for employment. In the Seattle-Denver experimental income maintenance pro- grams, lower tax rates on earnings by people receiving welfare had only a minor bearing on labor force participation, while adding significantly to the overall costs of welfare. See Adams, A Reappraisal of the Work Incentive Aspects of Welfare Reform, 54 Soc. SERV. REV. 521, 526 (1980). More detailed economic analyses of the Seattle-Denver NIT experiments demon- strated that heads of families in the experimental NIT group had a greater tendency than controls to leave employment and had substantially longer spells of non-employment. Robins, Tuma, & Yeager, Effects of SIME\/DIME on Changes in Employment Status. 15 J. HUM. RESOURCES 545 (1980). A NIT program nationwide, researchers warned, would lead to \”fairly sizable reductions in labor supply.., in participating families.\” Spiegelman & Yeager, Overview, 15 J. HUM. RESOURCES 463, 478 (1980). See also Robins & West, Program Partici- pation and Labor-Supply Response, 15 J. HUM. RESOURCES 499; Groeneveld, Tuma, & Han- nan, The Effects of Negative Income Tax Programs on Marital Dissolution, 15 J. HUM. RESOURCES 654. Compare Law, supra note 23, at 1292 (discussing family stability in relation to the NIT experiments). AFDC WORK PROGRAMS expenses.27 The Reagan juggernaut of 1980 capitalized on these anti- welfare sentiments and embodied them in federal policy early in the new administration with the 1981 OBRA amendments.28 OBRA ushered in a new era of conservative control over AFDC as Congress acquiesced to Reagan Administration efforts to reduce welfare expenditures. OBRA signaled a major shift in AFDC policy-making, as Congress enthusiastically embraced employment programs as the mechanism best suited to reduce welfare costs. The OBRA Congress expressed strong disenchantment with the work incentive approach and financial induce- ments such as the \”30 and I\/3\” income disregard, which was severely limited.29 Instead, Congress gave the states more freedom to design their -own mandatory work programs, including specific authorization for workfare, grant diversion, job search, and WIN demonstration pro- grams.\”a The \”carrot\” was abandoned, the \”stick\” taken in hand. As Sylvia Law succinctly states, \”Forcing welfare recipients to work was the major goal of the 1981 Amendments.\”” t In defense of this approach, Congress could rely upon the statutory language of the AFDC provisions which state that AFDC, in addition to its child welfare func- tion, should \”help parents or relatives attain or retain capability for the maximum self-support and personal independence.\” 32 The United States Senate also declared that encouraging welfare recipients to work for ben- efits was highly consistent with the American value system reflecting \”the consensus of American society that dependency on welfare is an undesirable situation both from the point of view of society and from the point of view of the individual recipient.\”, 33 Armed with this ideology, Congress in 1981 noted that American families increasingly relied upon the employment of both parents to maintain family economic independence. Indeed, in passing OBRA, 27 This brief description of political and economic events during the ’70s relies upon the discus- sion of the \”War on Welfare\” in M. KATZ, IN THE SHADOW OF THE POORHOUSE: A SOCIAL HISTORY OF WELFARE IN AMERICA 278, 278-91 (1986). See also F. PIVEN & R. CLOWARD, THE NEW CLASS WAR (1982). 28 See Omnibus Budget Reconciliation Act of 1981, Pub. L. No. 97-35, 95 Stat. 357 (Aug. 13, 1981). 29 See SENATE FINANCE COMM., SUMMARY OF THE FINANCE COMMITTEE’S RECOMMENDA- TIONS, SOCIAL SECURITY PROVISIONS, S. REP. No. 139, 97th Cong., 1st Sess. 507, reprinted in 1981 U.S. CODE CONG. & ADMIN. NEWS 396, 768. See also Heckler v. Turner, 470 U.S. 184 (1985) (effective amount of income disregard reduced by discontinuance of mandatory tax withholdings as a separate deduction in determining \”income\”). With the elimination of the income disregard, OBRA reduced the percentage of employed parents among recipients, since fewer qualified for AFDC benefits. See U.S. DEP’T OF HEALTH & HUMAN SERVS., SOCIAL SEC. ADMIN., AID TO FAMILIES WITH DEPENDENT CHILDREN: FINDINGS OF THE MAY 1981-MAY 1982 AID TO FAMILIES WITH DEPENDENT CHILDREN STUDY, RECIPIENT CHAR- ACTERISTiCS, FINANCIAL CIRCUMSTANCES: THE EFFECTS OF THE OMNIBUS RECONCILIA- TION ACT OF 1981, at 7 (1985) [hereinafter HHS, OBRA EFFECTS]. 30 See 42 U.S.C. 609, 614, 645 (1983). 31 Law, supra note 23, at 1274. 32 42 U.S.C. 601 (1983). 33 SENATE FINANCE COMM., supra note 29, at 774. BERKELEY WOMEN’S LAW JOURNAL Congressional reports specifically cited statistics showing the increasing percentage of maternal employment within the non-welfare population. 4 The implication was that if mothers in households not receiving AFDC have entered the labor force to secure or enhance their families’ eco- nomic well-being, AFDC mothers ought to be required to do the same. No longer did either conservatives or liberals talk about women’s special role as mothers. B. Federal and State Realignment In response to OBRA’s authorization of employment projects, thirty-eight states have established some form of AFDC work program. 35 Although the programs vary considerably in quality and character, 36 they represent a realignment with federal standards consistent with con- servative efforts to give the states added control and authority over welfare. Reflecting this approach, the Reagan Administration reaffirmed its faith in AFDC work programs in a special report on welfare that recom- mended the development of a \”new federal-state-community partner- ship\” so that \”those who are able to work do so for their public assistance benefits.\”‘ 37 The Administration’s report urges that there should be a \”general and system-wide waiver authority… so that state demonstrations may differ in whole or in large part from established rules and procedures.\”‘ 38 This recommendation indicates the Adminis- tration’s intent to allow states to develop work programs with minimal federal interference, eliminating potential protections that federal stat- 34 Id. 35 GAO WORK AND WELFARE, supra note 5. This report provides a good overview of the vari- ous state work programs currently in operation. See also J. GUERON, WORK INITIATIVES FOR WELFARE RECIPIENTS: LESSONS FROM A MULTI-STATE EXPERIMENT (1986); B. GOLDMAN, D. FRIEDLANDER, & D. LONG, FINAL REPORT ON THE SAN DIEGO JOB SEARCH AND WORK EXPERIENCE DEMONSTRATION (1986) [hereinafter B. GOLDMAN]; Sorenson, Women, Work and Welfare. A Summary of Work Incentives and Work Requirements for AFDC Recipients in Michigan, 20 CLEARINGHOUSE REV. 113 (1986); Savner, Williams, & Halas, supra note 4. 36 See. e.g.. GAO WORK AND WELFARE, supra note 5, at 32. 37 PRESIDENT’S DOMESTIC POLICY COUNCIL, UP FROM DEPENDENCY: A NEW NATIONAL PUBLIC ASSISTANCE STRATEGY 83, 93 (1986). The Policy Council’s \”Low Income Opportu- nity Working Group\” held public hearings in seven major cities, interviewing current and former welfare recipients, administrators, social workers, and political leaders, and gathering data on \”self-help antipoverty projects\” across the nation. Their data, however, are not presented in a highly systematic way (and are interspersed with many unnecessary quotes from President Reagan’s speeches). Much of this research is highly questionable and the con- clusions spurious (see, e.g., the discussion of AFDC’s impact on family breakdown, id. at 46- 47, 55). However, it serves as a clear policy statement from the current Administration regarding the direction of AFDC. 38 Id. at 94. The Working Group also strongly recommends reliance on private organizations and voluntary associations for the development of antipoverty programs. See id. at 64-74. AFDC WORK PROGRAMS utes might have provided.39 Workfare programs and related ideology have captured legislative attention at all levels of government. Leading state officials have joined the current Administration in its redefinition of welfare as a problem of personal incentive and work motivation. The National Governors’ Asso- ciation in 1987 echoed the Reagan Administration’s proposals, respond- ing with its own AFDC employment initiatives that include \”flexible state-designed work programs that accommodate remedial education, training and job placement and experience\” for AFDC recipients with children over the age of three.’ In its \”Policy on Welfare Reform,\” the Association articulated its belief that employment programs are the best remedy to welfare dependency: \”The Governors’ aim in proposing a wel- fare reform plan is to turn what is now primarily a payments system with a minor work component into a system that is first and foremost a jobs program.\” 4′ The Governors’ Association recommends that all employable wel- fare recipients participate in education, job training, or placement pro- grams, and accept a suitable job when offered. 42 Absent in this public discussion is any notion of welfare entitlement; the discussion is framed instead in terms of the participant’s obligation to work for her benefits. 43 GAIN can be viewed as an early version of this dramatic shift in welfare thinking, California’s answer to this change in ideology which serves as a harbinger of federal reform. C. Federal Legislation and. the Triumph of Conservatism Currently pending before Congress are major AFDC reform bills which strikingly reflect the new attitudes regarding welfare that guided GAIN’s formation. Although there are important differences among the federal bills, they nevertheless share similar premises regarding the desir- ability of employment programs and the need to restructure welfare thor- oughly. In the discussion that follows, we concentrate on three reform bills: S. 1511, 44 the \”Family Security Act\” sponsored by Senator Moyni- 39 See Part V(B) of this Article for a discussion of welfare litigation on matters of statutory conformity. 40 Herbers, Reagan Partly Backs Governors’ on Welfare, N.Y. Times, Feb. 24, 1987, at A20, col. 2. 41 Nat’l Governors’ Ass’n, Policy on Welfare Reform 1 (1987) (unpublished statement). 42 Id. at 2. According to the Governors’ Policy Statement, employable recipients include those with children age three or older. Id. The statement sets out no criteria for determining whether or not a job is \”suitable.\” It indicates, generally, that job placement services will be structured so that they suit the employment needs of individual participants. Id. 43 For instance, the Governors’ Association writes, \”The major obligation of the individual in the public assistance contracts we propose is to prepare for and seek, accept, and retain a job.\” Id. at 2. 44 S. 1511, 100th Cong., 1st Sess., 133 CONG. REc. 10,410-27 (1987). BERKELEY WOMEN’S LAW JOURNAL han; H.R. 1720 (as amended, H.R. 3644), 45 the \”Family Welfare Reform Act of 1987,\” which passed the House of Representatives on December 16, 1987; and H.R. 3200,46 the defeated Republican welfare reform bill. These federal bills have in common three key elements which illustrate the new ideological framework presently surrounding welfare reform. 1. The Rhetoric of a New Social Contract and the Loss of Welfare Entitlement The proposed measures all clearly state that it is the family, not the state or the community, that is responsible for child well-being. Senator Moynihan flatly declares that child support must come from parents first, and only thereafter from the community.4 7 Community responsibil- ity, according to Moynihan’s Family Security Act, extends primarily \”to the obligation to enable parents to fulfill their responsibilities through expanded opportunities in education and training.\”’48 The Republican- sponsored bill, H.R. 3200, attempts to establish a societal expectation that \”recipients will cooperate with local agencies by participating in education, training and employment programs in good faith and in that way fulfill their civic responsibility to accept welfare benefits only while they prepare for independence and for the briefest possible period of time.\”49 Coupled with this concept of a new civic responsibility 50 is a preoc- cupation with long-term \”dependency.\” For example, H.R. 1720 (as a- mended, H.R. 3644), considered by social advocates for women, the poor, and children to be the most generous and well-designed proposal, 5′ 45 H.R. 3644, 100th Cong., 1st Sess., 133 CONG. REC. 11,536-59 (1987). 46 H.R. 3200, 100th Cong., 1st Sess. (1987) (available on microfiche, H.R. Bills 424). 47 133 CONG. REC. S10,400-04 (daily ed. July 21, 1987). 48 S. 1511, supra note 44, tit. 1. All three bills contain provisions to improve the collection of child support from absent fathers. See id., tit. I(c); H.R. 3644, supra note 45, tit. V, 505; H.R. 3200, supra note 46, tit. IV, 407. However, none of the measures views welfare reform simply as a matter of cutting back on benefits; nor do they leave child support a purely private matter, as one conservative critic would recommend in his call for eliminating the AFDC program entirely. See C. MURRAY, LOSING GROUND: AMERICAN SOCIAL POLICY 1950- 1980, at 227-31 and passim (1984). 49 H.R. 3200, supra note 46, tit. 1, 101(2). 50 Lawrence Mead has influenced the welfare debate by urging adoption of a new civic responsi- bility. L. MEAD, BEYOND ENTITLEMENT 237-40 (1986). He argues that compulsory work programs will improve social functioning in American society, welfare programs in the past having failed because they expected \”too little\” of recipients. Id. at 9. Arguing that AFDC has shielded recipients from the threats and rewards of the private market place, Mead pro- poses the imposition of work requirements as part of an \”‘authoritative social policy [that would] enforce social obligations\” upon the poor. Id. at 12. See also id. at 30, 40-45. But cf. id. at 200-16 (discussion of liberal opposition to work requirements based on the belief that poverty is a societal problem riot an individual behavioral problem). 51 For example, the Coalition on Human Needs, an umbrella organization that includes the Chil- dren’s Defense Fund, the League of Women Voters, the Urban League, and the National Council of Churches, supported H.R. 1720. COALITION ON HUMAN NEEDS (1987) (brochure describing the Coalition, Washington, D.C.). AFDC WORK PROGRAMS offers as its express purpose, \”to assure that needy children and parents obtain the education, training, and employment which will help them to avoid long-term welfare dependence. \”52 As one of the co-sponsors of the measure states, \”guiding people out of poverty and dependency, and into the habits and routines of working people is the process and goal of H.R. 1720.\”\” 3 Personality change, not structural change, is the linchpin of reform according to this view. Defining the primary welfare problem in terms of long-term dependency represents to a large extent a conservative victory: the concept frames the issue in terms of psychological passivity, to the exclusion of larger economic forces that contribute to poverty and to welfare use.54 In general, proponents of work programs believe that improved ben- efits, financial incentives, and better opportunities are not enough to motivate welfare recipients, but that programs must also be mandatory. Behavioral requirements and the work ethic must be imposed upon indi- 52 H.R. 3644, supra note 45, tit. I (emphasis added). Noting that welfare dependency is most likely to occur among teenage parents and high school dropouts, the new federal welfare reform measures each identify as a \”target population\” those without a high school education and families with teenage parents.. See, e.g., id. 53 133 CONG. REC. 11,523 (1987) (statement of Rep. Espy) (emphasis added). The preoccupa- tion with the cycle of poverty and long-term dependency was an oft-repeated theme during the recent Congressional debate; Representative Mfume’s comments are typical: The essence of the approach behind the Family Welfare Reform Act of 1987 is cap- tured by the popular slogan, \”Give a Hand, Not a Handout.\” . . . We are not giving handouts here; we are providing incentives to work and opportunities to break the cycle of dependency of welfare. 133 CONG. REC. 11,527 (1987). 54 There is continuing debate over the extent of long-term receipt of welfare. According to Greg Duncan’s analysis of the Panel Study of Income Dynamics begun at the University of Michi- gan in 1968, longitudinal data reveal that only 17% of those receiving any welfare income were persistent welfare users who received welfare for eight years or more of the ten year study period. G. DUNCAN, YEARS OF POVERTY, YEARS OF PLENTY 76 (1984). This group constitutes 4-5% of the entire population, with fewer than half of these long-term recipients relying on welfare to make up more than half of their family income. Id. at 77-78. Duncan concludes that, contrary to the stereotype, only 2% of the population could be classified as persistently dependent on welfare income. Id. Mary Jo Bane and David Ellwood arrive at similar, though qualified, conclusions regard- ing welfare dependency. Bane & Ellwood, The Dynamics of Dependence: The Routes to Self- Sufficiency (1983) (unpublished mimeo. for the John F. Kennedy School of Government, Harvard University), cited in Ellwood & Summers, Poverty in America: Is Welfare the Answer or the Problem?, in FIGHTING POVERTY 96 (S. Danziger & D. Weinberg eds. 1986). Most people, they write, stay on the program a relatively short time: at least 50% leave within two years and 85% leave within eight. However, they also observe that the minority who do stay on the program a long time accumulate more than 50% of the benefits paid out. Id. at 96. Frances Fox Piven and Richard V. Cloward discuss the Bane and Ellwood research data and reiterate Bane and Ellwood’s conclusion that although looking at AFDC rolls over a period of time shows a high degree of transience, looking at them at a particular point in time emphasizes persistent use. Forty-nine percent, according to this approach, were undergoing a \”welfare spell\” that would last eight years or more. Piven & Cloward, supra note 27, at 62-67 (1987). Despite these research findings, they conclude: \”Nevertheless, considering the total universe of those who turn to AFDC over a period of years, welfare spells are much more temporary than the hardcore imagery implies.\” Id. at 64. For a good contrast of the methods of calculating welfare use, see Duncan, Hill, & Hoff- man, Welfare Dependence Within and Across Generations, 239 SCIENCE 467 (1988). BERKELEY WOMEN’S LAW JOURNAL viduals through a national effort to remake the AFDC family into an economically independent unit. At the core of this effort to reshape morality and behavior is the concept of a \”contract\” that delineates the rights and responsibilities of both the participant and the welfare agency.5\” For example, Moynihan’s bill, which had a \”general emphasis on shared and reciprocal obligation,\” calls for a \”social contract\” that obligates state agencies to provide opportunities for families to become self-sufficient, and which obligates participants in return to take advantage of such opportunities.56 Simi- larly, H.R. 3644 requires each work program participant to \”negotiate and enter into\” an \”agency-client agreement\” in which the participant commits herself to an employability plan while the state details the serv- ices it will provide to facilitate this participation.5 7 Although H.R. 3200 does not explicitly refer to a \”contract\” providing mutual rights and obli- gations, the bill does call for the development of \”employment plans\” which are similar in nature.58 This concept of a contract between the participant and the agency is attractive to many Democrats who view it as a way to make welfare more worthy in the public’s eye, thereby shielding AFDC from further attack.59 The work contract is a change from a system which many peo- ple, including some liberals, see as the government asking nothing in return for an AFDC grant.6\” Mothering is apparently equated with nothing in the view of many lawmakers. The head of an AFDC household, no longer entitled to AFDC as a matter of right, is to be \”contractually\” bound to work requirements as a condition of receiving benefits. However, as H.R. 3644 makes explicit, 55 Mead’s work emphasizes the concept of a social contract. Mead, supra note 50. He also stresses the need for a \”civic conception\” and the common obligation in the relationship between recipient and state. See Mead, supra note 50, at 189-258. 56 133 CONG. REC. S10,400-04 (daily ed. July 21, 1987) (statement of Sen. Moynihan). 57 H.R. 3644, supra note 45, tit. I, 102(g). 58 H.R. 3200, supra note 46, tit. 11. 417(d). The Governors’ Association report also encourages welfare agencies to develop a \”special contract\” between the recipient and the bureaucracy, one that will \”provide the incentives needed to succeed.\” Further mirroring the \”hands-off\” approach of the federal government as endorsed by the Reagan Administration, the Gover- nors’ Association states: \”[W]e oppose federal requirements that tell us how to implement job related services.\” Nat’l Governors’ Ass’n, supra note 41, at 4. 59 See, e.g., Democratic Representative Espy’s comments that work obligations as embodied in the agency-client contract would allow \”dignity and self-respect back into the lives of millions of our neediest citizens.\” 133 CONG. REC. HI 1,522-23 (daily ed. Dec. 16, 1987). 60 Wisconsin Representative Gunderson, for example, states: First and foremost, in any effective reform of the welfare program we must develop a system of mutual obligations. The government’s obligation to see that welfare recipi- ents are able to acquire skills necessary to be self-sufficient, and recipients’ obligation to contribute to their own support by working or participating in training to make them job ready. Id. at 11,520-21 (emphasis added). Implicit in this point of view is an ignorance of the work involved in parenting young children, as well as a lack of recognition for the social value of parenting. AFDC WORK PROGRAMS the \”contract\” is only unilaterally binding; nullifying any mutuality of contractual obligation, H.R. 3644 provides: In no case shall any agency-client agreement entered into pursuant to this subsection give rise to a cause of action against the federal government or any officer or agency thereof on the grounds of the failure of any party to such an agreement to observe its terms.6′ Thus, only the state can enforce this pseudo-contract, by withhold- ing financial assistance; the statute denies participants any right to enforce the agreement.6 2 Moreover, it is difficult to see what constitutes the bargained-for consideration on the part of the welfare recipients which is necessary for a binding contract. Workfare participants are already under a preexisting duty under the proposed statute to perform in training and employment programs. 6 3 Finally, the new federal reform measures reestablish significant social work control over the AFDC family. H.R. 3644, for example, calls for the assignment of a case manager to each participating family.’ In addition to acting as a \”broker\” to ensure delivery of services to the family, the case manager will \”monitor the progress of the participant\” and \”periodically review and renegotiate the family support plan.\”\” Another important new feature is the requirement in all three measures that teenage parents who receive benefits under the employment pro- grams live with a parent, guardian, or other adult relative.66 With case managers specifically assigned to participants and to fami- lies with minor parents, federal welfare measures now allow the reentry of the social worker directly into the AFDC family; the social worker supervises and attempts to mold behavior into a desired mode that will lead eventually, it is hoped, to financial independence. This intrusion into the family life of the poor is not simply an effort to shape sexual morality to conform to middle class expectations as welfare rules once were. 67 Rather, proponents see this as a pragmatic necessity in the effort to break the cycle of poverty. The work ethic, not sexual morality, is the informing ideology, as policymakers attempt to reintroduce the concept of worthiness into the AFDC program.68 61 H.R. 3644, supra note 45, tit. I, 415(g)(B). 62 Representatives were aware of the effort to make the agreement litigation-proof. See, e.g.. 133 CONG. REC. H11,516-17 (daily ed. Dec. 16, 1987) (statement of Rep. Henry). 63 See, e.g., H.R. 3644, supra note 45, it. 1, 101(c)(l). 64 Id. 416(g)(3). 65 Id. 416(g)(3)(a-c). 66 Teenage parents may also live in a foster home, maternity home, or other adult-supervised \”‘supportive living arrangement.\” Id at tit. VI, 417(b)(l)(a). See also S. 1511, supra note 44, tit. IV, 401. Both bills allow exemptions from this requirement if the agency finds it impossible, inappropriate or injurious to the health and safety of a minor parent to live with a parent or guardian. See H.R. 3644, supra note 45, tit. VI, 417(b)(1)(B); S. 1511, supra note 44, tit. IV, 401. 67 See, e.g., W. BELL, AID TO DEPENDENT CHILDREN (1965). 68 The concept of worthiness as a prerequisite for receipt of public benefits was dominant in welfare politics prior to 1960. See generally id. BERKELEY WOMEN’S LAW JOURNAL 2. AFDC Mothers Are Socially Obligated to Work Outside the Home and Their Contribution as Childrearers Has Been Devalued Requiring AFDC mothers of young children to work outside the home as a condition for receiving AFDC represents a dramatic policy shift. This shift has been fueled by the increased movement of women into the labor force and by the decreased societal valuation of single mothers as childrearers. Speaking on this point, Senator Moynihan introduced his bill by emphasizing that the changing social roles of American women have created new obligations that ought to be embod- ied in welfare policy. With the vastly changed family arrangements of the intervening half century, the majority of American mothers are now in the labor force.6 9 However, Moynihan continues, \”the only women who have not participated in this change are the heads of AFDC fami- lies, of whom fewer than five percent work part time or full time.\”7 \u00b0 Noting the national tendency to regard an unemployment rate of seven percent as barely tolerable, Moynihan asks rhetorically, \”What then are we to think of a system that keeps ninety-five percent of poor mothers unemployed and out of the labor force?\”‘\” Moynihan in effect implies that since employment is part of the \”normal experience\” of American mothers, single custodial mothers should be judged by the same standards as men–employment is not only expected, but ought to be statutorily mandated if one is receiving welfare. The imposition of work requirements is a way to make the lives of mothers receiving welfare parallel those of the majority.72 Republicans have expressed the strongest indignation concerning what they perceive as the \”gross injustice\” that liberal provision of bene- fits to AFDC mothers means for the employed mother not on welfare. Rather than providing affirmative measures such as childcare to all employed parents, the Republicans express concern that the provision of services to AFDC mothers might cause resentment among single mothers not receiving such benefits. Typical of such sentiments are Rep- resentative Fawell’s remarks in opposition to the Democratic bill: Whereas a majority of nonwelfare mothers with children under age 3 work, H.R. 1720 exempts welfare mothers with such children from partici- pating in NETWork. To the working woman supporting a household this 69 133 CONG. REC. S10,400-04 (daily ed. July 21, 1987). 70 Id. 71 Id. H.R. 3200 expresses the same idea but more obliquely, stating that \”nearly all welfare recipients are potentially able employees capable of self-support.\” H.R. 3200, supra note 46, at tit. I, 101(l). Obviously, these policymakers do not consider taking care of children to be work. 72 It is not just male politicians who have arrived at this conclusion regarding maternal employ- ment and AFDC. Economist Barbara Bergmann also recommends the imposition of work requirements, describing welfare mothers as the rearguard of women’s march into the labor force. B. BERGMANN. THE ECONOMIC EMERGENCE OF WOMEN 231, 242-43 (1986). AFDC WORK PROGRAMS double standard tells her not only does she have to work, but that she must find suitable day care, pay for that day care, and pay taxes to support the welfare mothers who remain at home with their children. 73 The repressive \”put-them-to-work\” mentality of the conservatives is now easily harmonized with the social realities of the ’80s in which most mothers with children over the age of six are employed.7 4 During the recent Congressional debate, very few Representatives or Senators spoke of the value of raising children, and no one spoke of the feminist notion that \”every mother is a working mother.\” Indeed, members of Congress frequently displayed a near contempt for the role of mothering, as Repre- sentative Slattery’s comment reveals: \”If this legislation passes, the day of the welfare parent sitting home and doing nothing to enhance their employability will end.\” 75 3. Child Welfare Is Best Served by Having an Economically Self-Sufficient Parent The widespread acceptance of mandatory work requirements is a complete reversal of the initial drive to institute the AFDC program in the early twentieth century. The early AFDC program was implemented to prevent single mothers from having to enter the labor force at a time when maternal employment was equated with child neglect in the minds of welfare reformers.76 Today, in contrast, GAIN and other welfare measures prescribe maternal employment as the very antidote to child- hood poverty and welfare dependency. The new federal welfare propos- als tend to concentrate on adult behavior or misbehavior to the near exclusion of child welfare concerns. For single parent families, it is now assumed that children are better off having an employed mother than an unemployed mother.77 All three bills require AFDC mothers with young children to par- ticipate in work programs, and all require the state to provide some childcare. Ironically, children of women participating in work programs now have the unique status of being the first set of American children for whom substitute childcare is deemed preferable to maternal care, their best opportunities in life resting with their mothers’ employed status. Congressional Republicans are as content with the provision of sub- 73 133 CONG. REC. Hll,525-26 (daily ed. Dec. 16, 1987). 74 The proportion of employed mothers with school-age children ranges from 64% to 71%. Hayghe, Rise in Mothers’ Labor Force Activity Including Those With Infants, MONTHLY LAB. REV., Feb. 1986, at 43. 75 133 CONG. REC. H 11,532-33 (daily ed. Dec. 16, 1987) (emphasis added). 76 See VanDePol, Dependent Children, Child Custody, and the Mother’s Pensions: The Transfor- mation of State-Family Relations in the Early 20th Century, 29 Soc. PROBs. 221 (1982). See also W. BELL, supra note 67. 77 See Representative Miller’s arguments in favor of H.R. 1720: \”By helping poor families improve their performance in the labor market, this bill ensures that children living in poverty will stand a better chance.\” 133 CONG. REC. H 1,528-29 (daily ed. Dec. 16, 1987). BERKELEY WOMEN’S LAW JOURNAL stitute care as any others, having apparently relinquished their hostility to the idea of childcare.78 The only difference among Democrats and Republicans concerning the desirability of maternal employment is the age at which children no longer require maternal care such that federal statutes can legitimately impose work requirements. H.R. 3644 and S. 1511 both require mothers of children over the age of three to participate in the work program.79 The defeated Republican version, H.R. 3200, would have required mothers with children over the age of six months to enter the workforce if they are to receive AFDC benefits.8\” This has led to some odd twists in the Congressional debates over AFDC policy; con- servative Republicans now argue in favor of the employment of mothers regardless of the age of children, while liberal Democrats defend their bill’s three year age provision by stressing the need for maternal care for early childhood development.8 In sum, federal AFDC reform is uniformly moving in the direction of establishing employment programs. Although the fate of the individ- ual bills discussed here is uncertain, it nevertheless appears that the fed- eral statute will be altered to facilitate implementation of state-sponsored employment programs consistent with the idea that AFDC mothers ought to work outside the home in exchange for benefits. GAIN is Cali- fornia’s answer to this sentiment. We turn now to a discussion of GAIN’s legislative passage. II. GAIN: THE LEGISLATIVE STORY 82 AFDC workfare and work programs in California have had a 78 See supra note 24 (an example of previous hostility among Republicans toward childcare). 79 HR. 3644, supra note 45, tit. 1, 416(c)(4)(c); S. 1511, supra note 44, tit. II, 416(c)(3)(a). 80 HR. 3200, supra note 46, tit. I, 101(416)(c)(1). s Republicans stressed that six months is the point at which maternal care is secondary to the necessity of maternal employment for welfare families. For example, Representative Gunder- son states, While the 6 months age level is controversial, we must keep in mind that while the welfare program was originally designed to allow mothers to stay at home to raise their children at a time when few mothers worked, now over 61 percent of mothers with young children work. Is an AFDC Program that does not expect the same for its recipients either realistic or fair in today’s society? 133 CONG. REC. Hll,520-21 (daily ed. Dec. 16, 1987). See also Representative Johnson’s similar remarks in id. at 11,586-87. Alarmed at the prospect of a three year age limit and expressing an attitude that people who receive welfare are freeloaders, Republican Roukema argues, \”Imagine this: A welfare mother could actually continue to have a child every 2 years and never have to go to work at all. That’s wrong.\” Id. at 11,515-16. In contrast, Democrat Miller argues that H.R. 1720, \”by mandating participation for mothers with children over 3 years of age permits poor mothers the same choices conferred on nonpoor mothers and the opportunity to give their infants a head start on building a produc- tive life.\” Id. at 11,528-29. 82 In 1982 and 1983, Kate Meiss, one of the authors of this Article, worked as a staff attorney for the Western Center on Law and Poverty in Sacramento, specializing in welfare issues. In 1985, she volunteered with Californians for a Fair Share, an organization opposing workfare and formulating more positive AFDC employment alternatives. She participated in the public hearings in the Assembly, and met with various groups throughout the state including unions, AFDC WORK PROGRAMS checkered history, but have continued to be the subject of political atten- tion. In 1971, when Ronald Reagan was Governor, a Democratic legis- lature enacted an AFDC workfare program called the Community Work Experience Program (CWEP).83 Despite the failure of CWEP84 and other workfare programs,85 the concept of workfare remained popular with conservatives, and each year a number of workfare bills were intro- duced by both Democrats and Republicans in the California legislature. Democratic leaders in this field supported voluntary work programs and opportunities, while conservatives promoted mandatory schemes includ- ing workfare.86 This fundamental difference made compromise difficult, and the two sides never reached agreement. During this period, people receiving welfare were required to regis- ter under WIN and look for work, but WIN never served large numbers of people because of a lack of funding.87 At the same time, California experimented with various small demonstration projects, including lim- ited training programs and a workfare project in San Diego.8\” One of the Democrats’ most influential leaders on AFDC issues was state Assemblymember Art Agnos from San Francisco. Agnos, a former social worker, was the chair of the subcommittee which studied the AFDC budget and made recommendations to the Assembly. In that position he worked with David Swoap, California’s Secretary of Health and Welfare, who was also a long-time proponent of mandatory workfare programs. Swoap had worked on Reagan’s staff in California and in Washington, where he was Undersecretary of Health and Human Ser- vices. In that position, Swoap was instrumental in bringing about the 1981 OBRA changes which allowed states to set up mandatory workfare programs; he supported the concepts of a mandatory program with welfare advocates, and women’s groups. Much of the following observation and commentary regarding political motivations are personal conclusions based on these experiences. 83 For an interesting liberal versus conservative debate of this first California welfare reform, which was strikingly similar to GAIN, see Beilenson & Agran, The Welfare Reform of 1971, 3 PAC. L.J. 475 (1972); Zumbrun, Momboisse, & Findley, Welfare Reform: California Meets the Challenge, 4 PAC. L.J. 739 (1973). 84 CAL. EMPLOYMENT DEVELOPMENT DEP’T, THIRD YEAR AND FINAL REPORT ON THE COMMUNITY WORK EXPERIENCE PROGRAM (1976). This report concluded that workfare was administratively impractical, failed to save money, and failed to increase the self- sufficiency of AFDC families. 85 For a good analysis of several other workfare failures, see Sklar, supra note 3, at 31. 86 Kirp, How Workfare Became Law-An Amazing Compromise, Sacramento Bee, Oct. 13, 1985, at HI, col. 5. 87 In 1983-84, WIN only served 8% of all eligible individuals in California. LEGISLATIVE ANA- LYST OFFICE, 3O SEARCH, TRAINING, AND WORK EXPERIENCE: THE LESSONS FOR CALI- FORNIA FROM EIGHT EVALUATIONS OF THE WORK INCENTIVE PROGRAM 18 (1985) [hereinafter LAO LESSONS]. 88 This program was used as a model for parts of GAIN. See D. Kennedy, California Welfare Reform 3-6 (1987) (unpublished case program prepared for the John F. Kennedy School of Government, Harvard University) (\”People looked at the San Diego data and made anything they wanted out of it.\”). BERKELEY WOMEN’S LAW JOURNAL heavy emphasis on job search and workfare.89 In 1985 the Governor supported S.B. 863,90 a welfare reform bill called STEP-UP,9\” which was sponsored by Senator Jim Nielsen, the Republican Senate Leader. Duplicating many features of San Diego’s workfare program, S.B. 863 called for the establishment of job search and workfare in only three counties. Several other bills aimed at welfare reform were also introduced in the state legislature.92 Meanwhile, Agnos and Swoap were working behind the scenes to forge a rare bipartisan agreement93 in favor of statewide welfare reform.94 They began in the early spring of 1985 by making a fact- finding tour of AFDC work and welfare programs in East Coast states. When they returned, they continued to meet, inviting legislative staff with welfare expertise to participate in the discussion. Although AFDC advocates were aware of these meetings, they were not permitted to attend.95 In July 1985, very late in the legislative session, Agnos and Swoap revealed the GAIN proposal. Given Agnos’ influential position and Speaker Willie Brown’s support, Assembly passage of GAIN was assured despite opposition from the chair of the Assembly Welfare Policy Com- mittee.96 Various groups registered their opposition and suggested modi- 89 For a discussion of the differing perspectives of Agnos and Swoap, see D. Kennedy, supra note 88, at 2. 90 S.B. No. 863 (1985-86 Reg. Sess.). 91 One interesting feature of the new work programs is the upbeat 1-Imes given to these onerous programs: STEP-UP, GAIN, MOST (Michigan Opportunity and Skills Training Program), ET. 92 Other bills included Senator Garamendi’s S.B. No. 15 (1985-1986 Reg. Sess.) which would have extended and expanded the existing Employment Preparation Program in six pilot coun- ties. Senator Watson’s S.B. No. 203 (1985-1986 Reg. Sess.) called for the establishment of a voluntary training scheme called Welfare Employment Service and Training Program (WEST) in one demonstration county. S.B. No. 1182 (1985-1986 Reg. Sess.), authored by Senator Bergeson, allowed a participant to be exempt for a period of up to five years after the youngest child has reached age six or until the participant has completed her educational program. A.B. No. 1303 (1985-1986 Reg. Sess.), sponsored by Assemblymember Killea, and S.B. No. 755 (1985-1986 Reg. Sess.), authored by Senator Deddeh, both authorized continu- ance of the San Diego workfare program for an additional two years’ For a further descrip- tion of these measures, see Wiseman, Workfare, CALIF. J., July 1985, at 289. 93 Many credit the passage of GAIN to the unique ability of Swoap and Agnos to communicate despite their philosophical differences. See Kirp, supra note 86. However, what happened with GAIN is not a personal story, nor is it unique to California politics. It is a reflection of the day-to-day wheeling and dealing that goes on in all legislative arenas. In the case of GAIN, most of it went on behind closed doors in the proverbial smoke-filled rooms. 94 For general coverage of the legislative maneuverings behind GAIN, see generally D. Kennedy, supra note 88; Legislative Session Update, FRIENDS COMMITTEE ON LEGISLATION NEWSLET- TER, Oct. 1985, at 2; Redmond, Agnos.\” Dancing With the Duke S.F. Bay Guardian. July 24- 31, 1985, at 7; Kirp, supra note 86, at HI, col. 1; Workfare Runs Into Strong Opposition, S.F. Chronicle, July 18, 1985, at 8, col. 3. 95 David M. Kennedy describes the secret negotiations and what led up to them in his case study. Kennedy, supra note 88, at 12-14 and passim. David L. Kirp also describes the negotiations, but suggests that the process was more open than it appears to have been. Kirp, supra note 86, at H6, col. 2. 96 Democratic Speaker of the Assembly, Willie Brown, and other Democrats supported the bill because of fears that voters would perceive Democrats as being \”soft on welfare.\” There were AFDC WORK PROGRAMS fications,97 some of which the authors accepted. However, all fundamental changes were rejected because the political deal had already been struck.98 Opponents of GAIN pinned their hopes on blocking or substantially modifying the bill in the state Senate where the Democratic leadership opposed GAIN. The Senate leader, Speaker Pro Tem David Roberti, and Senator Diane Watson, chair of the Senate Health and Wel- fare Committee had historically opposed workfare. Roberti was particu- larly concerned about the childcare provisions and also about the possible loss of unionized public employee jobs through displacement by workfare participants. In the Senate, progress of the bill slowed, and it appeared there would not be enough time for the bill to pass the required committees and floor votes of both houses before the recess. 99 However, Agnos and his staff, Roberti’s staff, the Governor’s staff, and some childcare advo- cates held lengthy negotiations around GAIN. With only one day left in the legislative session, the negotiators had to work until 2:00 a.m. to forge the final proposal. The next morning, the final day of the session, the deal emerged: the Governor would agree to sign an important child- care bill sponsored by Roberti in exchange for Roberti’s support of GAIN.\” Roberti, Agnos, and Deukmejian went to work lobbying the holdouts.’t’ Later that night, Senator Watson was forced to hold a com- mittee hearing. With both Democratic and Republican leadership on board, all time limits and rules of order, and even the requirement that the bill be available in print before being voted on, were waived. ‘ 0 2 The bills cleared all committees and the floors of both houses and were re- referred and sent to the Governor within one day. 0 3 The opportunities for full debate and for public comment from a number of moderate to conservative Assembly Democrats who faced reelection challenges from Republicans. Kirp, supra note 86, at H6, col. 7. It is unclear whether this perception that there were (or are) people who really cared about welfare reform is accurate. In fact, the 1984 elections suggested that the public would support welfare spending. In November 1984, California voters rejected by a 2 to I margin an initiative designed to reform welfare by cutting benefits drastically. 97 The Western Center on Law and Poverty and the Friends Committee on Legislation were among those groups which actively opposed the bill. However, since they saw its defeat as unlikely, they lobbied for modifications to mitigate the negative effects. See D. Kennedy, supra note 88, at 13-14. Also opposed were labor groups, church groups, feminists, and advo- cates for the poor. C. McKeever & M. Greenberg, supra note 3, at 1. 98 Redmond, supra note 94, at 24. 99 Legislative Session Update, supra note 94, at 2. 100 The Governor needed this victory to boost his image in the upcoming election and deliver on a campaign promise. Kirp, supra note 86, at H6, col. 3-4. 1o Roberti spent the day trying to get approval from Democratic Senator Paul Carpenter, the swing vote on the Senate Health and Welfare Committee. 102 CAI. LEGis. RULES 61(h), 62(a) (1985). 103 At the last minute, the Assembly Republicans almost scuttled the whole deal over the $50 million for childcare. Some of them went to the 1:00 a.m. hearing on the latchkey childcare bill with \”their fingers down their throats to show their displeasure with the trade.\” Legisla- tive Session Update, supra note 94, at 2. But the steamroller could not be stopped and GAIN became law. BERKELEY WOMEN’S LAW JOURNAL advocates and from people receiving AFDC were lost when the proce- dural requirements were waived. GAIN became law without this vital input. Concerned citizens who thought the legislature had shelved the proposal until January were shocked to discover that the measure had been signed, sealed, and delivered in the last day of the session. GAIN is not the product of a public consensus over the best way to reform wel- fare. No citizens’ coalitions or groundswell of public support were responsible for GAIN’s adoption; rather, it is the product of a political deal cut by powerbrokers. Had liberals not attacked AFDC as fostering dependency, breaking up families, and repressing work opportunities, the \”express\” might have been slowed down. The passage of GAIN highlights the danger in the trend of attacking welfare as a failure. These attacks create the impres- sion that anything would be better than the status quo; they ignore the fact that welfare is a system designed to feed, clothe, and help house children when the economic system fails to do so. ‘ 4 At that it succeeds, if only moderately well. Indeed, by turning AFDC into a work program, even its limited success in providing for poor children is threatened. III. A BRIEF DESCRIPTION OF THE GAIN’PROGRAM According to the statute, GAIN contains a complex variety of com- ponents designed to move heads of AFDC households into employment outside the home. The stated goal is to offer participants education, employment services, and training, which lead to unsubsidized employ- ment. If participants do not find employment, they are given workfare assignments for a year, called Preemployment Preparation (PREP).105 AFDC adults whose youngest child is over six years old must par- ticipate in GAIN from the time they apply for welfare benefits until they no longer receive AFDC.’06 There are exceptions for people who have a disability, a family crisis, or similar conditions.’0 7 Those not required to 104 These attacks fail to acknowledge that the use of welfare is a reflection of larger social and economic forces, including the failure of the economic system to provide families, especially those headed by women, the opportunity to find employment paying a living wage. An analy- sis of the failure of the economic and social systems is beyond the scope of this Article, but see generally: Piven & Cloward, The Contemporary Relief Debate, in THE MEAN SEASON: THE ATIrACK ON THE WELFARE STATE 46 (F. Block, R. Cloward, B. Ehrenreich, & F. Piven eds. 1987); Thurow, A Surge in Inequality, Sci. AMER., May 1987, at 30; Ehrenreich, A Step Back to the Workhouse, Ms., Nov. 1987, at 40; C. McKeever & M. Greenberg, supra note 3. 1o5 CAL. WELF. & INST. CODE 11320.5 (Deering Supp. 1988). Preemployment preparation is work for a public or nonprofit agency that provides the participant with either \”work behavior skills and a reference for future unsubsidized employment\” or \”‘on-the-job enhancement of existing participant skills in a position related to a participant’s experience, training, or educa- tion acquired as a result of [her GAIN contract].\” Id. 11320.3(d)(2). 106 Id. 11320.1. 107 Id. 11320.5(a) The statute also exempts individuals for drug and alcohol problems or illness of family members, and those temporarily laid off. AFDC WORK PROGRAMS participate may volunteer.’\” Once registered, the GAIN participant enters into a basic contract with the county which outlines her responsibilities and rights and the services available under the program. 109 This basic contract sets out the activities whi-h the participant will enter first in her GAIN experience. Depending on the participant’s education or employment history, the contract may provide for job search or job club activities;” \u00b0 remedial education or English-as-a-second-language instruction;… continuation of self-initiated vocational training or education;’ 1 2 or \”assessment.\”” 13 If the participant has not found employment by completion of the first component, such as remedial education or job search, her skills and needs are \”assessed.\” ‘1 14 Based on the assessment, the county devises an employment plan which specifies an employment goal and the supportive services needed to attain that goal.’ ‘5 The plan also describes the training or educational services which the county will provide for the participant, the criteria for successful completion, the sequence of activities, and when the partici- pant will be expected to find a job.’ 16 The job, training, and educational services are to be selected from existing local educational and vocational training programs set forth by statute.\” 7 If the services are available, the participant enters training or education, which usually lasts from three to nine months.\”‘ If the educational or training services are unavailable at that time, the participant will have to look for work until the training or education becomes available.’ ‘9 After training or education, the participant reenters job search, this time for 90 days.’12 If she cannot find a job within those 90 days, she is assigned to workfare for up to one year. 1 2 1 She must continue to look for a job while engaged in workfare. If she does not find work at the end of the year, her employment plan and goals are reassessed, she gets reas- signed, and the cycle begins again. 108 Id. 109 Id. 11320.5(b)(1). 110 Id. 11320.5(b)(2)-(3). II Id. :1320.5(b)(6). 112 Id. 11320.5(b)(5). 113 Id. 11320.5(b)(4). 114 Id. 11320.5(c). 1’5 Id. 11320.5(d). 116 Id 117 Id. 11320.3(c)-(d). 119 LEGISLATIVE ANALYST OFFICE, BUDGET PERSPECTIVES AND ISSUES: REPORT OF THE LEG- ISLATIVE ANALYST TO THE JOINT LEGISLATIVE BUDGET COMMITTEE 145 (1988) [hereinaf- ter LAO PERSPECTIVES]. 119 WELF. & INST. CODE 11320.5(e). 12 0 Id. 11320.5(d). 121 Id. The number of hours of workfare required is arrived at by dividing the AFDC grant amount by $5.00 per hour. Workfare participants must work up to 32 hours per week without any compensation beyond the amount of their original AFDC grant. BERKELEY WOMEN’S LAW JOURNAL At every stage in this process, mandatory participants face a gradu- ated series of sanctions if they do not cooperate with GAIN and meet performance standards. Refusal to sign the GAIN contract or failure to attend scheduled GAIN appointments is punished by sanctions.’ 2 2 Fail- ure at school or training is punished by assignment to workfare.’ 2 3 If a participant’s failure to cooperate is without good cause, as defined in the statute,124 then the participant is sanctioned. For the first sanction, mandatory participants who fail to cooperate have their AFDC grant paid to a third party for \”money manage- ment.\”‘ 2 5 For the second sanction, participants lose all or part of their grant for three months. Participants then lose all or part of their grants for six months for each additional instance of non-compliance. 2 6 Volun- tary participants are excluded from the GAIN program for six months, but do not face loss of their AFDC. 127 It is important to note that when an individual is sanctioned, the whole family suffers from the loss of income. Participants may challenge county action by requesting an adminis- trative hearing, 2 8 with one exception: the results of the assessment can- not be appealed through the regular state hearing process. 129 Participants dissatisfied with the training or support services may also invoke the new grievance procedure.’ 3 \u00b0 However, they must continue to participate during any grievance at the risk of losing AFDC benefits.’ An important protection unique to GAIN is the \”no-net-loss-of- income provision,\” which arises in the job-hunting phase of the pro- gram.’ 3 2 This provision states that a participant may refuse to accept 122 Id. 11320.6(a)-(c). 123 Id. 11320.5(d). 124 Id. 11320.7(a)-(1). Good cause includes such things as sickness, family crisis, or lack of transportation. Id. 125 Id. 11308. 126 Id. 11320.6(b). In a two-parent family, the entire grant is lost. In a single head-of-house- hold family, only the parent’s portion of the grant is lost. Id. 127 Id. 11320.6(c). 128 Id. 11320.75. 129 To handle assessment challeng’-, the statute establishes a separate third party \”independent\” arbitration. The arbitrator is picked by the state, and nothing in the statute requires more than a paper review of the original assessment. Id. 11320.5(e). For a discussion of the arbitration provision, see infra text accompanying notes 175-78. 130 Id. 11320.65. The grievance procedure contains all the due process protections of the state hearings with the exception that the initial adjudicator is a person selected by the Board of Supervisors rather than a State Administrative Law Judge. Id. 11320.65. The results of the county grievance are appealable through the state hearing process. This structure parallels current AFDC law in which a prehearing conference is available prior to going to a state hearing. CAL. STATE DEP’T OF SOCIAL SERVICES, MANUAL OF POLICIES AND PROCEDURES 22-220.34 (1986) [hereinafter DSS MANUAL]. That protection is rarely used, and if GAIN’s first year is any indication, this will also become a superfluous process. While the provision was added to give recipients more power, this may turn out to be no more than a cosmetic or rhetorical device. 131 WELF. & INST. CODE 11320.65. 132 Id. 11320.7(a)(13), (1). For a more detailed description of this provision, see Part IV(C) of this Article. AFDC WORK PROGRAMS particular employment if accepting the job would result in the family having a lower income than they would if they remained on AFDC.’33 The statute requires that childcare be available and paid for on behalf of all participants with children under twelve who \”need\” it.’ 34 Other supportive services include the provision of money for transporta- tion, tuition, uniforms, tools, books, and other costs associated with training and education programs;’ 35 these same services were also avail- able under WIN. If a GAIN participant becomes employed and thereby loses her AFDC, she can continue to receive Medi-Cal 36 for a short period of time and childcare for three months at no cost. 1 3 7 V. LEGISLATIVE AND ADVOCACY STRATEGIES Although their potential for resolving poor families’ problems is limited, AFDC work programs should at least be designed to meet the basic needs of participants rather than to punish them. In the following analysis of GAIN, this Article suggests strategies and ideas that advo- cates for low-income women and children should promote so that work programs may more effectively address the needs of those on welfare. We include suggestions both for formulating state legislation and for monitoring local programs. A. The New Social Contract As previously discussed,138 workfare and other work programs for welfare recipients are often cast as the expression of a new social contract between the state and AFDC heads of household. GAIN proponents stressed that the program enhances individual choice, making the system more responsive and empowering participants to take control of their lives. Not only would there be higher expectations on people receiving AFDC, but also on the bureaucracy. These new expectations were made 133 The initial contracts buried this provision in pages of rights and did not explain it. Also DSS tried to limit its use to job search. This led to the first litigation in GAIN, which is still pending. Sanchez v. McMahon, No. 361-772 7 (Fresno Super. Ct., filed Feb. 26, 1987). For a more detailed description of the income protection feature, see Part IV(C) of this Article. 134 WELF. & INST. CODE 11320.3(e)(l), (h). 135 Id. 11320.3(e)(2)-(4). 136 Id. 11320.3(f). Medi-Cal participants, depending on how their AFDC ends, may keep their medical coverage for four to nine months. Id. 14005.1(b), 14005.8. After that they may be eligible for California’s medically needy program, but they will have to pay part of the bill as a \”share of cost,\” which is often prohibitive. Id. 14005.7 137 WELF. & INST. CODE 11320.3(f). Although the statute provided for at least three months of transitional child care, the State Department of Social Services limited it to a maximum of three months. DSS MANUAL, supra note 130, 42-750.24. For a description of the conse- quences of this limit, see infra text accompanying notes 265-71. 138 See supra text accompanying notes 55-63. BERKELEY WOMEN’S LAW JOURNAL explicit in the legislation’s statement of intent: 13 9 the legislature declared that recipients desire to work, but lack the opportunities to do so;14\u00b0 that the state must provide sufficient services and support to help recipients to become employed; and that recipients will be expected to work.42 These new expectations are written into a \”contract\” entered into between the welfare department and the participant, which enumerates the participant’s rights, responsibilities, and choices available under GAIN. Thus, the ideological concepts contained in recent treatises on welfare reform’4 3 and expressed at the national level by conservatives as well as liberals\”‘ are manifested in the contract provisions of GAIN. As the following analysis will show, the concept of a new social contract is nothing more than a rhetorical promise; what the GAIN program offers is neither new nor a contract. Former Assemblymember Art Agnos highlighted the contract fea- ture as a way of empowering participants. 45 By calling this a contract rather than an employment plan, he created the impression of a process in which recipients have bargaining power. The image is one of negotia- tion, rational compromise, and finally, agreement; however, the reality is quite different. GAIN contracts are preprinted, and participants are presented with them and expected to sign.’ 46 County GAIN workers are required to explain the contracts and any changes to them, but the boilerplate lan- guage and the parties’ inherent inequality preclude any negotiation over terms. Participants have no bargaining power-no way of wringing con- cessions out of the welfare department. On the contrary, these are people who are impoverished and seek economic assistance for their very sur- vival from the welfare department, which has the unilateral power to deny or terminate the assistance. Calling a piece of paper a contract does not alter this fundamental inequality. 4 \” Perhaps most importantly, participants cannot force the department to perform its contractual obligations. For example, if a participant can- 139 WELF. & INST. CODE 11320. 140 Id. 11320(a). 141 Id. 11320(b). 142 Id. 11320(c). Implicit in this statement of intent and in the design of the program is the belief that taking care of one’s children is not \”work.\” 143 See, e.g., L. MEAD, supra note 50, at 237-40. 144 See supra Part I(C) of this Article. 145 ASSEMBLYMAN ART AGNOS, 1985 ANNUAL REPORT 39; Redmond, supra note 94, at 7. 146 WELF. & INST. CODE 11320.6 and DSS MANUAL, supra note 130, at 42-771, -771.2, -773.1. 147 If a participant does not sign the contract, she is sanctioned. However, participants are unlikely to hold out for provisions they may be entitled to, because DSS fails to explain them and in fact attempts to limit their use. See infra note 210. As one GAIN worker said, \”If the client wants services, they sign the contract. Very few question anything. It’s just like apply- ing for AFDC; you have to sign a lot of papers.\” Telephone interview with Sally Lacau, GAIN caseworker, Napa County Employment Training Office (Feb. 15, 1988). The contracts are now the subject of litigation. See supra note 133. AFDC WORK PROGRAMS not.find childcare, she does not have the power under the contract to make the county deliver it. A person can be excused from participation if childcare is not available, but the county has no obligation to provide childcare services as promised in the contract.’48 The same is true for employment services and most of the other critical elements in GAIN. For instance, if the assessment identifies a person as needing a particular form of training, that is written into the contract; however, if that train- ing is unavailable, the participant cannot force the county to provide it. Instead, she must wait for the services to become available.’49 The con- tract, then, does not create mutual obligations; it is primarily a device in which the county sets out what is expected of the participant and can thereby monitor the participant in the process. Not only does the contract fail to empower participants, but it can be used to restrict what little choice participants do have under GAIN. An example of this abusive use of the contract has occurred with an important participant protection, the no-net-loss-of-income provision.’ 5 \u00b0 This provision gives participants the right to refuse a job if accepting it would decrease their family’s income. Clearly this provision gives a par- ticipant some power to refuse low-paying jobs: she might want to hold out for a high-paying job, or she might wish to take a job that has poten- tial for advancement. However, the statute provides that this right may be waived in the employment contract.’ 5 ‘ When the Department of Social Services developed the standard GAIN contract and the contract amendments, it provided no real explanation of the income protection feature, but included instead a blanket waiver of it.’ The state trans- formed the contract, which was designed to give participants decision- making control, into a device by which participants unwittingly surren- der what modest protections the statute gave them. As the history of WIN shows,’ the requirement that people who receive welfare should work is not new. GAIN supporters claim that GAIN will be different because it will serve more individuals and will offer better training and education options than other programs have done. However, funding constraints have already appeared which threaten GAIN’s promise to serve all eligible participants. The Gover- nor’s proposed budget does not fully fund GAIN, 54 and the number of 148 WELF. & INST. CODE 11320.7(a)(1 1). 149 Interestingly, while the participant is waiting, she must \”perform\” her \”contractual obliga- tions\” by looking for work. Id. 11320.5(d). 153 Id. 11320.7(a)(13), (I). See Part IV(C) of this Article for a more detailed exploration of this provision. 151 WELF. & INST. CODE 11320.7(1). 152 See infra note 210. 153 See supra Part I(A) of this Article. 154 LAO PERSPECTIVES, supra note 118, at 160. The department’s estimate of the cost has more than doubled. It is estimated that it would cost $542 million for GAIN to be fully funded. The Governor proposes spending $408 million. Id. at 145-46. See also Paddock, Governor’s BERKELEY WOMEN’S LAW JOURNAL participants is now expected to drop by one quarter. 55 This will proba- bly mean that new applicants for aid and people who are volunteers will not be included in the program at all.’ 56 As was true with WIN, it is questionable whether the system will ever be funded adequately.’ 57 GAIN demonstrates that the costs of AFDC reform are high;’5 8 already there are indications that the resources and the political will to fund GAIN adequately may not exist. 59 Budgetary and resource constraints also threaten GAIN’s promise to provide better education and training options than traditional workfare programs. GAIN does provide for a variety of job training options.\”‘ \u00b0 It does so by marshalling preexisting training programs in community colleges and in the welfare department, and the programs provided throughout California’s Job Training and Partnership Act.’ 6′ Despite this reliance on existing programs, the available data suggest that these components are much more costly than originally anticipated. 62 Given current budget projections, it is unclear whether the range of training options will be fully realized and available. GAIN may never fully succeed in its effort to distinguish itself from WIN. This is evident if one looks closely at GAIN’s assessment, employ- ment plan, and contract features. Under WIN, the welfare department first sent participants to \”testing and counselling,\” and then established an \”employment plan.\”‘ 63 Like the WIN plan, GAIN’s employment plan should, according to the statute, describe barriers to work, support- ive services participants will need, and employment services to be pro- vided. To distinguish it from WIN, GAIN architects developed several Budget Would Scale Back Workfare Plan, L.A. Times, Jan. 12, 1987, at 1, col. 1; Cal. Dep’t of Social Services, All County Letter No. 88-08. (Jan. 20, 1988). 155 Paddock, supra note 154. 156 Volunteers are individuals who have children under six and wish to participate. See Cal. Dep’t of Social Services, All County Letter No. 88-08, at 2; LAO PERSPECTIVES, supra note 118, at 147. 157 According to one source, the average rate of WIN participation in 1985 nationally was about 22%; California served just under 15%. This was due to \”limited capacity.\” GAO WORK AND WELFARE, supra note 5, at 51-52, 54. See also LAO PERSPECTIVES, supra note 118, at 160. 158 LAO PERSPECTIVES, supra note 118, passim. 159 Id. at 160. 160 Because experience with these options is limited, we do not analyze these provisions in depth. Throughout this Article we refer to various studies which should be consulted for more infor- mation. In addition, advocates should look to reports and studies available on JTPA training. Finally, for some creative ideas on new work options for people who are receiving welfare, see Bird, New Approaches to Jobs for Welfare Mothers, ECON. DEV. AND LAW CENTER REP., Nov.-Feb. 1984, at 24-29. For an excellent analysis of the limits of workfare and the fears that counties may over- emphasize workfare, see C. McKeever & M. Greenberg, supra note 3. 161 CAL. UNEMP. INS. CODE 15000-16010 (Deering 1986 & Supp. 1988) The GAIN statute is replete with references to utilizing existing resources to avoid new expenditures of funds. See CAL. WELF. & INST. CODE 11320(f)(5), 11320.2(b), 11320.2(c), 11320.3(a), 11320.3(d) (Deering Supp. 1988); DSS MANUAL, supra note 130, at 42-720.325, -720.571. 162 LAO PERSPECTIVES, supra note 118, at 154. 163 42 U.S.C. 633(a), (b)(3) (1983 & Supp. 1988). AFDC WORK PROGRAMS features to ensure \”individualized help\” and a \”true choice\” of options,’ 64 including an individual assessment; 6 5 an employment plan contract;’66 and arbitration of disputes.’ 67 But in fact, these features do little to set GAIN apart. Job and training assessment, for example, is a key element of indi- vidualizing GAIN services. As Art Agnos explains, \”Counselors are required to assess each person’s needs and find the educational or job training service which provides her with the best chance of finding a job. . . . [E]veryone will participate in an in-depth professional assess- ment of [her] career interests and capabilities.\”‘ 68 Although the statute requires a professional assessment,’ 69 the state allows the welfare depart- ment to waive this and use untrained personnel who can ostensibly acquire the needed skill over time.’ 70 The statute requires an \”inven- tory\” of each participant’s skills, education, ambitions, and potential, 7 1 but does not explicitly require testing of any kind as part of the assess- ment. 172 Some counties may choose to adopt a thorough approach and use test instruments and career counseling, but even those with the best of intentions will be limited by cost concerns. There is a danger that assessment information could be reduced to a listing based on question- naires or on information already in the AFDC file. While a thorough, meaningful assessment might be possible under the statute, it is not guar- anteed, and because of cost constraints, it may not occur at all. Because of the limits in the statute and the regulations, this \”new\” assessment may be far less individualized and professional than hoped. In fact, the assessment may effectively be nothing more than the old WIN appraisal. Additionally, the GAIN assessment is not done when the partici- pant first enters GAIN. A logical sequence would be to evaluate people individually and then assign them to options which best fit their needs and their interests. Instead, most people go through a job search first; assessment happens only after they fail to find a job. Rather than begin- ning the program with a positive experience, people who reach the assess- ment stage have already failed to find a job. The psychological sense of failure this creates may color the entire process, and be critical to a par- 164 ASSEMBLYMAN ART AGNOS. supra note 145, at 36-37; see also NEWSLETTER OF THE JOINT OVERSIGHT COMMITTEE ON GAIN IMPLEMENTATION, Oct. 1986, at 2. 165 WELF. & INST. CODE 11320.5(c). 1 66 Id. 11320.5(d). 167 Id. 11320.5(e). 168 California’s New GAIN Program, ASSEMBLYMAN ART AGNOS NEWSLETTER, Feb- 1986, at 4, 5. 169 The statute requires the assessor to be \”a person qualified by education or experience to pro- vide counseling, guidance, assessment, or career planning.\” WELE. & INST. CODE 11320.5(c)(5). 170 DSS MANUAL, supra note 130, 42-773.5, -773.53. 171 Id. 172 WELF. & INST. CODE 1 1320.5(c)(1)-(5). BERKELEY WOMEN’S LAW JOURNAL ticipant’s ultimate success or failure. 7 3 Up-front assessment also creates an impression that the system responds to individual needs. Initial job search, in contrast, creates an impression of inflexibility and rigid requirements, a series of hoops that participants must pass through. This feature resulted from a political compromise, 174 and it represents a signif- icant loss for AFDC recipients. The arbitration provision relating to the employment plan is a unique feature intended to empower participants.’ If the participant and the worker disagree over the career goal to write into the plan, then the participant can ask for a review by a third party \”arbitrator.\”‘ 76 Although the arbitration provision allows a third party to review the employment plan, it may not lead to such enhanced protection after all. Generally, very few participants challenge the welfare department’s deci- sions, even when termination of aid is at issue.’ 7 7 Another drawback is that the arbitrator is hired and paid for by the county.’ 78 This selection process differs from standard arbitration procedures in which both sides select the arbitrator; to select an arbitrator in this fashion for GAIN dis- putes would make work programs better mirror employment practices generally and would reduce the likelihood of bias. Although most of the GAIN contract’ 79 is essentially a dressed-up version of the old WIN employment plan, it does contain one valuable protection: once a participant begins her education or training she has a 30-day grace period in which to request a change or reassignment to a different component.\”8 ‘ If a participant does not like her placement, she 173 Leonard Goodwin’s research found that a woman’s perception of herself and ability to succeed was critical to her success in WIN. Goodwin, supra note 3, at 22. 174 See Swoap, Broad Support Buoys California’s GAIN, J. PUB. WELFARE, Winter 1986, at 24, 25. Swoap describes GAIN as \”a curious blend of conservative and liberal components.\” Id. at 25. While both liberals and conservatives favor job search, liberals generally prefer up-front assessment, while conservatives prefer the quick fix of up-front job search. See id. 175 See WELF. & INST. CODE 11320.5(e); DSS MANUAL, supra note 130, 42-773.6. 176 DSS MANUAL, supra note 130, 42-773.6. 177 For instance, there were over 3 million negative case actions, case closings, and negative appli- cation decisions nationally in fiscal year 1985. Telephone interview with Timothy J. Casey, staff attorney, Center on Social Welfare Policy and Law, New York City (April 26, 1988). Yet there were only 138,713 fair hearing requests during the same period. U.S. DEP’T OF HEALTH & HUMAN SERVS., SOCIAL SEC. ADMIN., OFFICE OF POLICY, & FAMILY SUPPORT ADMIN., OFFICE OF FAMILY ASSISTANCE, QUARTERLY PUBLIC ASSISTANCE STATISTICS JANUARY- MARCH 1985, at 29 (1986). Families may also appeal actions affecting them other than those listed above, so the number of appealable actions is actually much greater than 3 million. Even using 3 million as a base, only 4.6% of the adverse decisions are challenged by persons receiving AFDC. This figure is even more striking if New York State is removed from the equation. For whatever reason, almost half of all hearing requests come from people in New York State (in fiscal year 1985, this represented 60,080 requests, or 43% of all requests). Id. Yet AFDC families in New York State represent only about 10% of the national AFDC caseload. Id. at 3. If New York’s negative case actions and appeal rates are excluded, the national appellate rate would probably be closer to 3%. 178 See WELF. & INST. CODE 11320.5(e); DSS MANUAL, supra note 130, 42-773.6. 179 WELF. & INST. CODE 11320.5(c)-(d). 180 Id. 11320.5(d). AFDC WORK PROGRAMS may request a new one as long as it is consistent with her assessment.\”‘ However, each GAIN participant is permitted to exercise this option only once. All of these ideas and protections contain positive elements. Arbi- tration, employment plans, and up-front, in-depth assessments are valu- able tools which should be incorporated into work programs. However, alone they are not sufficient to alter the basic power relationship between people who receive welfare and the welfare bureaucracy. None of these devices can empower people who are forced to participate in work pro- grams under penalty of losing their means of survival. The only way truly to empower individuals would be to create a voluntary program in which there were legally enforceable entitlements to childcare and employment services. That would be a new social contract. B. Promoting Remedial and Higher Education For AFDC Heads of Household Many advocates who are otherwise skeptical about GAIN’s promises identify the educational features of the program as its chief ben- efit. GAIN recognizes the importance of remedial education and also acknowledges the value of higher education as a way to increase employ- ment potential. GAIN and similar programs can provide a valuable ser- vice to many people on AFDC, by supplying necessary childcare and transportation funds and paying for other expenses while participants complete their high school education or receive essential training in Eng- lish. These educational referrals related to remedial education and lan- guage and high school training are critical for the realization of successful employment, and similar concepts should be utilized in work programs elsewhere. First, GAIN participants are tested for math and literacy skills,\” 2 to determine whether they have the skills considered necessary to work. Those who do poorly on the tests are assigned to remedial education or to English-as-a-second-language classes,’83 which are expected to last from nine months to two years.’ 84 If a participant drops out, fails to attend regularly, or fails the class, she may be sanctioned by loss of the 181 Id. This demonstrates how important the initial assessment can be. 182 WELF. & INST. CODE 11320.5(b)(6); CAL. EDUC. CODE 33117.5(a) (Deering Supp. 1988); see DSS MANUAL, supra note 130, 42-772.5. The State Department of Social Services uses the Comprehensive Adult Student Assessment System (CASAS) test to determine if participants have practical skills, i.e., \”basic skills\” they can transfer to real-life situations. Cal. State Dep’t of Social Services, All County Letter Nos. 86-82 (Aug. 26, 1986), 87-57 (April 21, 1987). 183 See WELF. & INST. CODE 11320.5(b)(6).. Existing adult education or community colleges provide remedial education classes to GAIN participants. CAL. EDUC. CODE 33117.5 (Deering Supp. 1988). 184 Cal. State Dep’t of Social Services, All County Letter No. 87-57 (April 21, 1987). BERKELEY WOMEN’S LAW JOURNAL grant’8 5 or by assignment to workfare.18 6 Once a person’s skills have reached an acceptable level or she passes the General Education Devel- opment exam (GED-high school equivalency test), she enters GAIN’s job search or training components.’ t 7 Initial figures indicate that poor math and English skills are a major problem for many GAIN participants; nearly half are in remedial pro- grams. 88 While remedial education does not necessarily result in quick job placement, the California welfare agency recognizes that it does sig- nificantly enhance people’s chances of obtaining and keeping a job. t 9 Education is an important stepping stone to long-term employability, and it is especially important for the small group of people who have received AFDC for extended periods of time, since many of them have never completed high school.’ 9 ‘ In addition to the remedial education component, GAIN has provi- sions for higher education which allow participants to attend community college, state college, or university programs which are \”likely to lead to employment.\”‘ 9 ‘ Participants who are already involved in a self-initiated vocational training program or an educational program leading to unsub- sidized employment may receive GAIN support services while continu- ing in that program. However, GAIN support for individuals in an educational program is limited to a maximum of two years.192 Both the limitation on the extent of education and the burden of having to convince the GAIN bureaucracy that a particular educational program will be \”likely to lead to employment\” are unnecessary obsta- cles in the implementation of GAIN’s education provision. The standard \”likely to lead to employment\” is vague, giving individual workers wide discretion to deny programs and benefits. For example, GAIN officials told a participant who wanted to go to graduate school to become a jour- nalist that a journalism career was not feasible, but that nursing school would be appropriate.’ 93 When case workers have discretion to deter- mine the appropriateness of particular career choices, there is a danger that they will be guided by traditional notions of what is a suitable career 185 WELF. & INST. CODE 11320.6(a)-(b). 186 Id. 11320.5(d). 187 Id.; DSS MANUAL, supra note 130, at 42-772.44 (1986). 188 C. McKeever, Sixteen Months of GAIN: Troubling Trends, statistical app. 2 (Jan. 1988) (unpublished manuscript, Western Center on Law and Poverty, Sacramento, Cal.). Statewide GAIN data shows that with 26,028 people involved in all GAIN activities, 12,847 of those were in remedial education. The department now estimates that 57-67% will need education services, more than a 200% increase over the original estimate. LAO PERSPECTIVES, supra note 118, at 152-53. 189 See, e.g., Cal. State Dep’t of Social Services, All County Letter No. 87-18, at 1 (Feb. 2, 1987). 190 GAO WORK AND WELFARE, supra note 5, at 20 (citing ELLWOOD, TARGETING \”WOULD- BE\” LONG-TERM RECIPIENTS OF AFDC 41-44 (1986)). See also supra note 22. 191 WELF. & INST. CODE 11320.3(d)(4). 192 Id. 11320.5(b)(5). 193 Udesky, Workfare.- It Isn’t Fair and it Doesn’t Work, THE PROGRESSIVE, Dec. 1987, at 14, 17. AFDC WORK PROGRAMS for a woman, and women will once again be channeled into lower-paid, traditionally female occupations.’ While the intention of the statute with regard to higher education is laudable, its execution depends too heavily on worker discretion. An alternative less subject to abuse would be to allow an outside professional, such as a vocational expert, profes- sor, or college guidance counselor evaluate what kinds of education are likely to lead to employment. In addition to this problem of lack of standards, GAIN’s two year limit on higher education options is counterproductive. While limiting options in this way may be politically attractive, it is shortsighted: chan- nelling women into sex-segregated low-wage jobs will not lead to eco- nomic self-sufficiency. It also imposes unduly on the autonomy of the participants with regard to their employment options. GAIN administrators seem determined to limit educational benefits to remedial education and high school equivalency programs, skeptical at best of the value of higher education. For example, Carl Williams, a former director of GAIN, justifies the two year limit and at the same time shows his contempt for higher education in his statement, \”No, GAIN will not pay for graduate school. This is an employment program. We’re not going to pay for a graduate program in basket weaving. There’s no way the taxpayers would want to pay for it.\” ‘195 While grad- uate programs offering basket weaving are rare if not nonexistent, it is curious that Mr. Williams thinks women would want to learn basket weaving as a means of supporting their children. It is more likely that women who wish to go to college or graduate school share similar objec- tives with college students everywhere: to gain the training and creden- tials necessary to enter the professional world of stable work and higher salaries. Women receiving AFDC have an added incentive: to leave the welfare world. Some of the most frequently repeated examples of success under GAIN are of women who have become nurses, finishing nursing school (usually a four year program) with GAIN’s help to pay for childcare and transportation. Promoters of GAIN repeat these stories in support of the program, but such successes are only possible if the woman has already completed her second year of school before commencing GAIN. If a woman entered a GAIN Office today seeking to enter nursing school, she would be told that she could not pursue such a career because it would take too long to complete the education. It is more likely that she would be channelled into a Job Training Partnership Act (JTPA)’96 or commu- nity college training program to become a nurse’s aid or licensed voca- 194 Id., passim. 195 Id. at 17 (emphasis added). 196 CAL. UNEMP. INS. CODE 15000-16010 (Deering 1986 & Supp. 1988). BERKELEY WOMEN’S LAW JOURNAL tional nurse, or trained for a similar position that pays lower wages.’ 9 7 Indeed, if she were a mandatory GAIN participant, GAIN would pre- vent her from pursuing nursing school and would force her to participate in some GAIN-approved activity. GAIN proponents classify this as never giving up on participants.’ Participants, however, may come to view it as never being left alone to pursue their career goals. C. Dealing with the Dilemma of Low-Wage Jobs: The No-Net-Loss-of-Income Provision One unique and valuable feature of GAIN is the so-called GAIN wage scale, or no-net-loss-of-income provision.’ 99 AFDC families often face the risk of income loss when a family member becomes employed, because of the increased costs associated with working. Such costs include childcare, health insurance, transportation, and other mandatory payroll deductions. The GAIN wage scale addresses this problem by allowing a participant to turn down a job without losing her benefits if accepting the job would result in a net loss of income to the family. 2\” Estimates of the wage rate necessary to offset the costs associated with working indicate that the larger the family, the greater the wage rate needed. These estimates take into account regional market rates for childcare, health care, and transportation.2\u00b0′ For a family of two living in a large urban county (Alameda), the estimated required wage rate in 1987 was $4.88 to $7.50 per hour.2 \u00b02 For a welfare family of a mother with two children, the estimate was $5.88 to $11.13 an hour;20 3 for a family of six, the figure shot up to $9.00 to $16.88 an hour.2\” GAIN’s wage scale reflects a legislative concern over the economic reality faced by heads of welfare families. Studies suggest that many individuals earn little more than the minimum wage when they leave the welfare rolls; this is true for those who have been placed through WIN or 197 For some women, especially those with only one child who might want to choose a licensed vocational nurse option in order to begin their careers, this might suffice. But this is not a viable option for a woman with a large family. The challenge is to avoid inappropriate track- ing into dead-end, low-wage jobs where a placement may appear as a success on a form but mean failure in real life. 198 See, e.g., Swoap, supra note 174, at 24, 25. 199 WELF. & INST. CODE 11320.7(a)(13). 200 Id. 201 Id. 11320.7(1). 202 ALAMEDA COUNTY SOCIAL SERVICES AGENCY, ALAMEDA COUNTY GAIN PLAN 8-9 – 8-12 (1987). The two major benefits include health care cost and childcare. The Alameda County Department of Social Services based its figures on the average cost of three health plans and childcare in the area. They then figured out the cost if the job contained health coverage and there was no childcare cost (lowest in range) to the situation where the recipient would have to pay for both (high end of range). The amounts also reflect federal and state taxes, SDI and FICA. Id. 203 Id. 204 Id. AFDC WORK PROGRAMS similar programs as well as for those who have not.2\” 5 Women especially are relegated to minimum wage jobs or to the \”secondary labor\” market.206 Work programs alone are unable to address such fundamental problems. In the long run, economic self-sufficiency will require increases in the, minimum wage 2 7 and the breaking down of sex segrega- tion so that women can move into higher-paying occupations. Therefore, efforts must continue to be made to increase the minimum wage and to promote comparable worth and nontraditional job training for women. But AFDC work programs can at least begin to address these problems by including meaningful wage scale provisions. Without such provisions, work programs may actually help perpetuate21′ a cycle of poverty by forcing women into any job offered to them.209 As with many parts of GAIN, the wage scale is an important idea whose full realization is hindered by limits in the statute and by state and county practices. The scale provides participants with some choice in the very basic economic decision of whether or not to accept particular employment. In this way, it increases participants’ control over their own lives in a system that is otherwise intrusive and controlling. How- ever, the State Department of Social Services is attempting to restrict the provision so that it will only apply to the initial job search phase.2 t0 Such a scale should be available before and after training. But it is not 205 GAO WORK AND WELFARE, supra note 5, at 104. The GAO found that 50% of the jobs were paid $4.14 per hour, and only one-fourth were above $4.47. The report suggests that wages may be low due to the emphasis on job search strategies rather than on training, and because programs do not try to channel women into the higher-paying jobs traditionally held by men. Id. 206 Segregation in the labor force and childrearing expenses often prevent women from getting out of poverty even with a job. In contrast, for men a job often means poverty is alleviated. See NATIONAL ADVISORY COUNCIL ON ECONOMIC OPPORTUNITY, THE AMERICAN PROMISE: EQUAL JUST!CE AND ECONOMIC OPPORTUNITY 7 (1982). 207 For a good description of minimum wage campaigns as part of a \”work\/welfare\” strategy, see Schulzinger & Roberts, supra note 4, at 703-05, 709. 208 Sylvia Law suggests that WIN has perpetuated sex stereotyping by focusing on men and disfa- voring women, especially those who are single heads of households. See LAW, supra note 23, at 1262, 1264-67. 209 Without the wage scale, participants are forced to accept any job offered. Studies show that WIN in most states focused oti job search and did not offer other services in significant num- bers. GAO WORK AND WELFARE, supra note 5. at 69-70, 104. In 1985, California spent 96% of its employment and training money on job search workshops. LAO LESSONS, supra note 87, at 32. 210 DSS does this by including a waiver of the loss provision in the standard employment plan, which all participants must sign after assessment. See Cal. Dep’t of Social Services. GAIN Contract Activity Agreement: Assessment, and GAIN Contract Activity Agreement: Train- ing or Education Services After Assessment, and GAIN Contract Activity Agreement: Job Services After Assessment, attachments to All County Letter No. 88-10 (Jan. 21. 1988). See also Forms Instructions. GAIN Contract 4 (the case manager must assure that clients under- stand that net loss of income is riot good cause for refusing a job once the employment plan is developed), attachment to All County Letter No. 88-10 (Jan. 21, 1988); Cal. Dep’t of Social Services, GAIN Policy Questions and Answers 22. attachment to All County Letter No. 86- 125 (Dec. 9, 1986). See also DSS MANUAL, supra note 130, at 42-771.2, -784.2. See gener- ally supra note 133. BERKELEY WOMEN’S LAW JOURNAL sufficient to give participants a choice to turn down a job. Training and referrals for jobs should also incorporate the scale, so that appropriate jobs are targeted.2 ‘ The GAIN wage scale should be incorporated more fully into the planning and evaluation stages of AFDC work programs. The success of GAIN and most other programs is measured largely by the number of placements at a certain point in time, rather than by the wage rates of participants.2t2 Data on the wage rates being earned, or even on average rates, are not consistently recorded.2\” 3 In order to incorporate the wage scale more fully into work programs, records of wage rates by family size should be recorded and updated by program trainers and counties. The wage scale would also be an effective basis for evaluating the success of specific work programs or of individual job training provid- ers.2\” 4 If wage scales were a criterion in the evaluation and payment of trainers and welfare departments, planners would be compelled to struc- ture programs to include a range of wages,21 5 so that all families would have a chance to become independent of welfare.21 6 Until such criteria are adopted, it is likely that programs will continue to channel people into low-wage jobs. D. Childcare Provisions and Maternal Employment The GAIN statute gives clear expression to the legislative refusal to consider mothers’ childrearing work inside the home as socially signifi- cant, cognizable labor. The fact that women receiving welfare are already \”at work\” as parents is sometimes simply ignored, and often dis- counted as meaningless. As McKeever and Greenberg point out, \”[b]y 211 Of course; the scale does not guarantee that jobs paying a living wage are available. Some economists have noted a decrease in higher-paid, skilled work, and an increase in lower-paid service jobs. See generally Thurow, supra note 104, at 30, 34. Whether the economy can incorporate and absorb these families is unclear. This question is beyond the scope of this Article, but it is one that must be considered in evaluating work programs. Thurow’s article also contains a good description of the level of wages that women need in order to move out of poverty. Id. at 35. 212 See GAO WORK AND WELFARE, supra note 5, at 99-101, 103, 104; WELF. & INST. CODE 1 1320.2(i)(12). 213 GAO WORK AND WELFARE, supra note 5, at 104. The GAIN statute does require that this data be gathered, but overall program effectiveness is measured by placement rates. WELF. & INST. CODE 11320.2(i)(7)-(8), (12). GAIN does not require the wage records to be linked with family size. See id. 11320.2(2)(i). 214 The Legislative Analyst Office report suggested such an approach in California, but it was not incorporated into GAIN. LAO suggested that the legislature \”prohibit the use of placement rates .. . and, instead require that increases in participant earnings be the primary perform- ance measure.\” LAO LESSONS, supra note 87, at 4. 215 This \”goal\” might need to be even higher than the net loss wage-a real \”living wage.\” Cali- fornia’s grants are still below the poverty level, even though they are higher than most other states. Center on Social Welfare Policy and Law, Analysis of 1987 Benefit Levels in the Pro- gram of Aid to Families with Dependent Children, Table 1, at 1, Table 2, at I, Table 5 (1987) (unpublished report). 216 This concern is expressed and explored in C. McKeever & M. Greenberg, supra note 3. AFDC WORK PROGRAMS conditioning eligibility for a family allowance on work requirements, the state denies the value of parenting. The inherent policy premise is that raising children is not an activity worthy of support in itself.\”2 7 This is an anomaly, because if the same kind of childrearing activity were per- formed as paid labor in a childcare center, that would be the very type of legitimate labor that legislators desire for work program participants.21 ‘ The compulsory nature of GAIN’s childcare provisions must be evaluated not only in terms of their reflection of the value of women’s work within the home, but also in terms of their compatibility with larger social and economic trends regarding women’s employment. Those trends have altered cultural expectations regarding maternal care for children. Maternal employment has been steadily increasing, beginning with a tremendous surge in the 1970s. Families have become increasingly dependent on a mother’s earnings. Moreover, the rates at which single and married mothers participate in the workforce have been converging, and the correlation between a mother’s labor force activity and the age of her youngest child has blurred.\” 9 Despite this influx of women into the workforce, the lack of child- care options remains a major barrier to women’s full economic participa- tion, especially for low-income women. A recent study conducted by the U.S. Census Bureau demonstrates that if women had greater access to reasonably-priced childcare, there would be dramatic increases in their employment rates, especially among single female heads of house- holds.2 2 \u00b0 Similarly, 64% of surveyed AFDC recipients in Washington State identified problems with childcare as a primary barrier to finding. and keeping a job.22 ‘ Indeed, for mothers of small children, childcare is usually the greatest expense associated with working.2 22 Studies have also shown that the type of childcare women select depends in significant part on their ability to pay. 22 3 For example, poor women tend to rely on friends and relatives for childcare.2 24 217 Id. at 8. McKeever and Greenberg further emphasize that \”[clommunity property laws, such as those in California, also reflect recognition that maintaining a household entitles the home- maker to share equally in the income and property obtained. Yet this principle is ignored in valuing the role of indigent homemakers.\” Id. 218 For a further discussion of this distinction between women’s paid and unpaid labor as it relates to domestic work and childcare, see Margaret Benson’s classic article: Benson, The Political Economy of Women’s Liberation, 21 MONTHLY REV. 13 (1969). 219 Hayghe, supra note 74, at 43. 220 Id. at 7-8 (summary of 1982 U.S, Census Bureau survey). As noted therein, \”[cihild care is a greater obstacle for single than for married women.\” Id. at 8. 221 A. WICKS & C. CARO. FACTORS AFFECTING THE EMPLOYABILITY or WELFARE RECIPI- ENTS: A SURVEY OF WOMEN RECEIVING AID TO FAMILIES WITH DEPENDENT CHILDREN BENEFITS IN WASHINGTON STATE at v-vi (1986). 222 O’Connell & Bloom, Juggling Jobs and Babies. America’s Child Care Challenge, POPULATION TRENDS & PUB. POLICY, Feb. 1987, at 7. 223 Id. at 9. 224 Id.; CALIFORNIA ASSEMBLY OFFICE OF RESEARCH, CALIFORNIA 2000: A PEOPLE IN TRAN- BERKELEY WOMEN’S LAW JOURNAL In California, a dramatic shortage of childcare persists despite a rel- atively extensive system of state-subsidized childcare. A recent study on the future of California identifies childcare as a major need for all income groups throughout the state. 225 Less than 7% of the children eligible for subsidized care are now being served.226 The sponsors of GAIN were acutely aware of this problem, and dis- tinguished GAIN from previous AFDC work programs with the promise of adequate childcare. Indeed, it was Governor Deukmejian’s willing- ness to trade his signature on a latchkey childcare bill which won the necessary support of Senate President Pro Tem David Roberti, allowing GAIN to become law. 227 Although GAIN’s budget will be negotiated each year, its legislative authors agreed to spend $118 million per year for childcare once the program is fully implemented.228 While GAIN provides new money to pay for the currently available care, it will also significantly increase the demand for that care. GAIN is expected to add 50,000 to 90,000 to the number of children needing childcare. 229 Despite this increase in demand, neither GAIN nor the \”latchkey\” bill provide an adequate plan to increase the supply of child- care.23\u00b0 There is already a lack of quality, affordable programs; even those parents who can afford to purchase care often cannot find satisfac- tory care for their children.23′ In many areas there are long waiting lists 232 for3ifor subsidized care, especially for infants and toddlers.233 Even the additional $118 million allotted for childcare may not generate new childcare placements unless it can somehow generate new openings.234 On the other hand, GAIN’s childcare provisions have some note- worthy features that are definite improvements over childcare provisions in earlier AFDC work programs. Rather than capping the cost of child- care at an arbitrary limit or average, as WIN and some of the proposed federal bills do, GAIN bases its payout on the \”regional market rate. 235 Under this system, the county can pay for care up to 1.5 standard devia- SITION: MAJOR ISSUES AFFECTING HUMAN RESOURCES 8 (June 1986) [hereinafter AOR CALIFORNIA 2000]. 225 AOR CALIFORNIA 2000, supra note 224, at 7-8, 13, 42. 226 Id. at 13. 227 See supra text accompanying note 100. 228 Strassburger, California’s GAIN Program Falls Short in Meeting Child Care Needs, 8 YOUTH LAW NEWS, May-June 1987, at 12, 13. 229 Id. at 15. 230 See id. at 13, 15-16. 231 COMMISSION ON CAL. STATE GOV’T ORG. AND ECONOMY, FINAL REPORT: THE CHIL- DREN’S SERVICE DELIVERY SYSTEM IN CALIFORNIA 18-20 (1987) [hereinafter COMMISSION FINAL REPORT]. 232 Strassburger, supra note 228, at 15; COMMISSION FINAL REPORT, supra note 231, at 22-23. 233 AD HOC DAY CARE COALITION, THE CRISIS IN INFANT AND TODDLER CHILD CARE 1-1 (1985); COMMISSION FINAL REPORT, supra note 231, at 22-23. 234 COMMISSION FINAL REPORT, supra note 231, at 22-23. 235 WELF. & INST. CODE 11320.3(f). AFDC WORK PROGRAMS tions above the mean market cost of care in the area.236 Although GAIN does not guarantee a participant that care will be provided, it will pay for childcare if a participant can find it. The statute encourages counties to set up flexible payment schedules to meet parents’ needs, 237 and autho- rizes payments for care whenever a participant is in a program compo- nent and care is \”needed. 2 1 38 If care is unavailable, a participant has good cause not to participate.239 In addition, the statute authorizes at least three months of transitional childcare for those participants who become employed through GAIN and lose their AFDC.\”4 The statute is replete with references to parental choice. It requires as a general principle that \”[p]articipants shall be allowed to choose legal child care . . . if the cost is within the regional market rate.\”24′ Else- where, the bill states that \”[d]ay care by family members shall be encouraged, but the choice between licensed or exempt day care arrange- ments shall be made by the recipient.\” ‘242 Although the statutory lan- guage emphasizes parental choice, there are some ways in which choice as to childcare may nevertheless be restricted. As discussed earlier, the AFDC parent’s choice of childcare is limited by the lack of an adequate supply. Failure to find childcare may lead to participants being excused from the program, but that is neither productive nor desirable for those who wish to acquire skills training or an education. An aspect of GAIN itself which impinges on parental choice con- cerns the statutory definition of nonavailable childcare and the sanctions imposed for refusing \”available\” childcare. Finding satisfactory child- care is not easy for most working parents, and there are no guarantees built into the GAIN statutory framework that adequate childcare will be found. According to the statute, this is primarily a parental responsibil- ity, although the county is required to \”assist participants to locate child care during and after participation [in GAIN].\”243 While the inability to find adequate childcare is considered a \”good cause\” for failure to par- 244ticipate, the statute qualifies this by defining \”reasonable available 236 Heidi Strassburger states that this gives participants economic access to 90% of the subsidized slots in the state. Ensuring the Provision of Quality Child Care to AFDC Recipients Participat- ing in Employment and Training Programs: Hearings Before the Education and Labor Com- mittee, US. House of Representatives, 100th Cong., 1st Sess. 5 (1987) (testimony of Heidi Strassburger, staff attorney, Child Care Law Center). 237 WELF. & INST. CODE 11320.3(h)(2), (6). 238 Id. 11320.3(e)(1). Need, however, is a very subjective standard. 239 Id. I 1320.7(a)(l 1), (i). 240 Id. 11320.3(f). 241 Id. (emphasis added). 242 Id. (emphasis added). Exempt day care under California law includes care such as care by relatives; family day care providers who provide care in their own home for the children of one other family; certain after-school programs; and Parks and Recreation programs. CAL. HEALTH & SAFETY CODE 1596.792 (Deering Supp. 1988). 243 WELF. & INST. CODE 11320.3(h)(1). 24 4 Id. 11320.7(i). BERKELEY WOMEN’S LAW JOURNAL childcare\” as \”having at least two choices of childcare arrangements. ‘ 245 Mandatory participants must accept a childcare arrangement as long as they are offered at least two possible caregivers; if they are dissatisfied with both, they risk losing their grants. Two choices may not be enough for many parents, particularly in a matter as highly idiosyncratic as choosing childcare. Thus, this \”two-choice\” limitation before the impo- sition of sanctions may in practice be highly restrictive for parents dissat- isfied with both childcare arrangements.246 The exclusion of children over twelve years old from childcare cov- erage24 also creates some cause for concern. 24 8 Although parental or adult supervision may not be as critical for the health and safety of ado- lescents as it is for younger children, state law does not treat the adoles- cent as \”mature\” or without need of adult guidance and some supervised recreational activity. Moreover, concerns for children’s safety do not ter- minate when a child reaches the age of twelve, particularly for parents living in neighborhoods troubled by crime. In sum, the legislative confines of the GAIN measure do limit parental choice: parents who wish to work may not be able to find child- care; parents who do not like either of the two licensed or exempt day care arrangements proposed by the county may be sanctioned for refus- ing to participate; and parents wanting some supervision for their teenage children must leave them to fend for themselves after school. A further denial of parental choice confronts the parent who simply feels that she is the best person to care for her child during the after-school hours. Preliminary data reveal that only 30% of single-parent families par- ticipating in GAIN currently receive paid childcare. 249 These statistics, along with anecdotal evidence from participants, advocates, and child- care providers suggest that welfare departments may be limiting partici- pants’ childcare options. Participants may not know that they are entitled to paid childcare from GAIN.25 \u00b0 If a participant does not her- self identify lack of childcare as a barrier, she may not be properly 245 Id. 246 This provision recognizes, however, that the childcare requirements of \”special needs chil- dren\” with disabilities, chronic illnesses, or other special needs, must be taken into considera- tion. Id. 247 Id. 11320.3(h)(5). 248 However, the preoccupation with \”latchkey\” children of this age probably does not warrant the rather alarmist fears expressed by Michyle LaPedis. Compare LaPedis, California Workfare Legislation and the Right of Privacy, 13 HASTINGS CONST. L.Q. 761, 779-80 (1986) (Note) with Udesky, supra note 193, at 16. 249 C. McKeever, supra note 188, at 3. This may be due to any number of factors, including the provision of services during school hours to reduce need for care; the high use of education options by the initial participants; a slow flow of participants; counties’ limits on payments; and reliance on family caregivers. Id. at 4; The Need to Maintain a High Level of Funding for GAIN Child Care Services and to Improve the GAIN Child Care Delivery System: Hearings Before the Joint Oversight Committee on GAIN Implementation 1 (1988) (testimony of Heidi Strassburger, staff attorney, Child Care Law Center). 250 See COMMISSION FINAL REPORT, supra note 231, at 57. AFDC WORK PROGRAMS advised of’her right to childcare. Even if she does identify childcare as a problem, she may be pressured to seek care from relatives. The statute mandates that care by relatives \”shall be encouraged, but the choice… shall be made by the recipient,\”25′ and the regulations252 mimic this requirement. According to one analyst, this has led some county GAIN workers to explore all possibilities for care to be provided by relatives before giving participants information about licensed childcare. 2\” Even participants who know of their rights to paid care are unlikely to insist upon them because of the threat of sanctions for noncoopera- tion.254 This would be especially true for mandatory participants. One way to assist participants effectively to address their childcare needs would be to utilize childcare experts from non-profit resource and refer- ral agencies 255 in the GAIN intake process. GAIN has taken a step in this direction by requiring referral of those who need care to their local resource and referral agency for help.256 Some counties only send lists of participant names to the agencies, while others actually refer participants who need care.257 Resource and referral agencies possess knowledge and expertise in the area of childcare which welfare departments lack. Consequently, the agencies are able more effectively to assist parents in the choice of appro- priate childcare. The agencies understand the advantages of using licensed care better than welfare departments, and are not driven to mini- mize people’s need for childcare by incentives to cut costs. In order for women fully to explore and utilize different options for childcare, resource and referral agencies should be used to orient individuals and to refer them to appropriate childcare providers. Those individuals who choose paid care still face problems in obtaining such care because of the program’s payment mechanisms and rates. Several counties use a scheme of paying for care by the hour, which can both restrict the parent’s choice of provider and disrupt con- tinuous care by a single provider. Because most licensed day care pro- viders charge by the week or month, they may be reluctant to take a child who will only be in care for four hours a day, three days a week.1 58 Also, for parents attending school, coverage may not be extended to pay 251 WELF. & INST. CODE 11320.3(f). 252 DSS MANUAL, supra note 130, at 42-750.2. 253 H. Strassburger, supra note 249, at 4. 254 For childcare-related exemptions to sanctions for noncooperation, see WELF. & INST. CODE 11320.7(i). 255 Resource and referral agencies are publicly funded community service agencies. There is at least one in every county in California; they refer parents to childcare programs, develop new childcare resources, and provide technical assistance to childcare providers. They also edu- cate and assist parents in choosing appropriate childcare. Strassburger, supra note 228, at 13. 256 WELF. & INST. CODE 11320.3(i). 257 Strassburger, supra note 228, at 15. 258 H. Strassburger, supra note 249, at 3. BERKELEY WOMEN’S LAW JOURNAL for care during breaks such as summer vacations. Parents may thus have to pay for care during such periods or risk losing providers. Because licensed day care providers may not be willing to take chil- dren under the GAIN payment scheme, GAIN parents may look to unli- censed providers for care. If a participant chooses a provider who is exempt from the licensing requirement, the state may pay.2 59 But coun- ties may be reluctant to pay the full cost of non-licensed care, even when it is below the regional market rate. San Mateo County decided to pay only $1.25 per hour for unlicensed care, and the state approved that plan 26\” despite the fact that the statute clearly requires payment for childcare that is within the regional market rate. 261 The county increased this rate to the market rate only after a GAIN participant won a state hearing requiring it to do SO.26 2 If a county only provides $1.25 per hour for care, the participant is faced with the unpleasant choice of using her AFDC grant to pay a portion of the care or doing without childcare. The three-month limit on transitional childcare is possibly the most significant limitation on childcare under GAIN. The statute authorizes \”not less than three months\” of childcare for those participants who find a job and leave welfare as a result of their participation in GAIN. 26 3 While the statute sets three months as the minimum period for transi- tion, the State Department of Social Services has decided to set three months as a maximum period as well. 26 4 Three months is a very short period; it is unlikely that many women will be able to find other subsi- dized childcare in that time.265 Some women may well lose their jobs due to childcare problems, while those who find childcare that is unsub- sidized may not be able to afford to work.2 66 As a result, many families could end up back on welfare. Offering women free or sliding scale childcare could significantly increase their opportunities to become independent of welfare.267 One study in Florida found that care on a sliding fee basis resulted in an 259 WELF. & INST. CODE 11320.3(f), (j). 260 H. Strassburger, supra note 249, at 2. 261 WELF. & INST. CODE 11320.3(f). 262 H. Strassburger, supra note 249, at 2. 263 WELF. & INST. CODE 11320.3(f). 264 DSS MANUAL, supra note 130, 42-750.24. 265 The Little Hoover Commission echoes the concern over the insufficient supply of subsidized childcare. COMMISSION FINAL REPORT, supra note 231, at iii, 20, 22-24, 57-58. 266 Others are also concerned that women may leave their children alone. See id. at 49, 51, 57; Strassburger, supra note 228, at 14; AOR CALIFORNIA 2000, supra note 224, at 11. 267 This is not to say childcare alone is enough. Yet, child care support alone cannot break the cycle of poverty[,J as mothers are still low-income earners and concentrate[d] in low-paying jobs. Serious need for additional training, retraining, and upgrading of skills seem justifiable in that context. However, such opportunities, if available, would not be effective without child care support. D. HOSNI & B. DONNAN, AN ECONOMIC ANALYSIS OF CHILD CARE SUPPORT TO Low INCOME MOTHERS 9 and passim (1979). AFDC WORK PROGRAMS almost 50% reduction in participants’ receipt of AFDC, a 122% improvement in employment and a 117% increase in family income.,268 A similar study in California showed that family income (and taxes paid) increased 6.5 times among families who used sliding scale childcare for two years as compared to those who used it only for six months,269 while AFDC costs were reduced by half. 27 \u00b0 Clearly, the likelihood of a family staying off welfare increases dra- matically over time. Transitional care should therefore be provided until such time as a subsidized slot becomes available, or for a longer period such as two years. As stated by Hosni, \”a short enrollment is definitely not rewarding. ‘ 271 Because adequate childcare may be the most important element of any welfare employment program, guaranteeing an adequate supply, a generous market rate of payment, and meaningful choices regarding quality is essential. Without these safeguards, even the most progressive welfare reform measure will fail. V. GAIN AND WELFARE LITIGATION This Part discusses the history and limitations of welfare litigation that may provide the basis for legal challenges to GAIN. In particular, we explore legal challenges that can be made on behalf of GAIN and other AFDC work program participants. A. The Dandridge Legacy and Federal Constitutional Action Important litigation victories during the 1960s and 1970s gave AFDC families due process rights2 72 and limited the right of social work- ers to intervene in the personal lives of welfare recipients.273 With their constitutional claims, welfare advocates joined prison reform advocates, busing proponents, and other champions of institutional change in fol- lowing the \”time honored tradition that those who lose in the legislature or the bureaucracy may turn to the courts… .,, 274 However, the prefer- 268 Id. at 6-8. 269 Freis & Miller & Assoc., The Economic Impact of Subsidized Child Care 16 (1980) (unpub- lished manuscript). The authors of this study conclude that \”This increase is substantially more than that of inflation and is possibly related to the ability of families to maintain their jobs and increase their skills. It is likely that the availability of child care contributes to the increased economic independence of these families.\” Id. 270 Id. at 1; see also id. at 15. These also parallel Hosni’s findings in 1979 and 1987. See D. HOSNI & B. DONNAN, supra note 267; D. HOSNI, CHILD CARE ASSISTANCE: A LABOR MAR- KET ASSESSMENT OF RECIPIENTS 27-29, 32 (1987). 271 D. HOSNI, supra note 270, at 36. 272 See Goldberg v. Kelly, 397 U.S. 254 (1970) (persons receiving welfare must be given notice and a hearing prior to discontinuance of welfare benefits). 273 See, e.g., King v. Smith, 392 U.S. 309 (1968) (state rule excluding children whose mother was \”cohabiting\” with a man held to be impermissible under the Social Security Act). 274 D. HOROWITZ, THE COURTS AND SOCIAL POLICY 10 (1977). BERKELEY WOMEN’S LAW JOURNAL ence for litigation was more than just a response to the American procliv- ity to think of social problems in legal terms.2\” Welfare litigation was in large part a realistic response to political realities in which people who receive AFDC wield little if any political power. AFDC recipients share a similar set of social characteristics: they are poor; they are dispropor- tionately minorities; they are relatively young; and among the adults, they are overwhelmingly female.27 6 Taken as a composite, these social characteristics are frequently associated with little voting power and interest group representation at the federal, state, or local level. Thus, AFDC recipients, like public law litigants,277 are effectively unorganized and to a large extent politically powerless. With the availability of free legal services through the Legal Services Corporation, AFDC families were able to march to the courthouse along with other deprived social groups to enforce federal law, thereby vindi- cating rights they were unable to secure through the state legislative or administrative process alone. During this period, welfare litigation con- ferred significant legal entitlement upon recipients.278 Most federal constitutional welfare litigation, however, involved 275 See S. SCHEINGOLD, THE POLITICS OF RIGHTS: LAWYERS, PUBLIC POLICY AND POLITICAL CHANGE 3-38 (1974). 276 In 1983, 43% of AFDC families nationally were Black and 13% were Hispanic. Approxi- mately 80% of AFDC households were female-headed, single parent families. The Unem- ployed Parent division, assisting two-parent households in which the primary wage earner is unemployed, comprised 10% of the total AFDC families. U.S. DEP’T OF HEALTH AND HUMAN SERVS., FAMILY SUPPORT ADMIN., AID TO FAMILIES WITH DEPENDENT CHIL- DREN: RECIPIENT CHARACTERISTICS AND FINANCIAL CIRCUMSTANCES OF AFDC RECIPI- ENTS 1 (1983). Over 70% of those receiving aid are children (7,340,926 children and 3,412,670 parents received aid in 1981-82). HHS, OBRA EFFECTS, supra note 29, at 4, 6. Most AFDC mothers are under 30 years old, with a median age of 28 in 1982. Id. at 6. AFDC families averaged 2 children. For the one adult\/two child families, the AFDC pay- ment averaged S322 per month nationally in 1982. Id. at 1, 9. 277 The term \”public law litigation\” is drawn primarily from the work of Abram Chayes. The crucial characteristics of public law litigation are: (1) the scope of the lawsuit is not exoge- nously given, but is primarily shaped by the courts; (2) the party structure is not rigidly bilat- eral, but sprawling and amorphous; (3) the fact inquiry is not historical and adjudicative but predictive and legislative; (4) relief is forward-looking, and fashioned on ad hoc, flexible lines, with remedies often having important consequences for absentees to the litigation; (5) the decree is not imposed but is negotiated; (6) the decree does not terminate judicial involvement in the affair; rather, its administration requires the continuing participation of the court; (7) the judge is not passive, but active, with responsibility not only for credible fact evaluation but also for organizing and shaping the litigation to insure a just and viable outcome; and (8) the subject matter of the lawsuit is not a dispute between private individuals about private rights, but a grievance about the operation of public policy. Chayes, The Role of the Judge in Public Law Litigation, 89 HARV. L. REV. 1281, 1302 (1976). 278 Sylvia Law calls this process the \”legalization of welfare.\” Law, supra note 23, at 1261. For a critical discussion of the achievements of this era of welfare litigation and some of its unex- pected consequences for AFDC administration, see Simon, Legality. Bureaucracy, and Class in the Welfare System, 92 YALE L.J. 1199 (1983). Moreover, as courts used the federal AFDC statute and the Constitution to strike down state restrictions on welfare benefits, AFDC litigation had widespread budgetary effects, caus- ing a fiscal impact that largely circumvented the legislative power of the purse. See S. SCHEINGOLD, supra note 275. For example, as a result of federal court actions in the early 1970s, it is estimated that an additional 100,000 people became eligible for assistance. Id. at 126. AFDC WORK PROGRAMS procedural rather than substantive rights. 279 These procedural rights protected people who had already secured benefits from unjust termina- tion or curtailment, 280 AFDC litigation led to few successful substantive challenges to AFDC policy-making. This is largely a result of the Supreme Court’s holding in Dandridge v. Williams, 28′ which set the con- tours of constitutional challenges to state practices and federal welfare law for the next two decades. In Dandridge, the Court held that consti- tutional review of welfare litigation was limited to the rational relation- ship test. The Court wrote: [T]he intractable economic, social, and even philosophical problems presented by public welfare assistance programs, are not the business of this court…. [T]he Constitution does not empower this Court to second- guess state officials charged with the difficult responsibility of allocating limited public welfare funds among the myriad of potential recipients. 282 This early constitutional defeat chilled substantive constitutional lit- igation. Thus, federal courts have rarely addressed substantive constitu- tional issues concerning welfare, and especially the authority of a state welfare agency to demand compliance with work requirements in exchange for benefits. In one such case, a federal district court held that a mother has no constitutional right to refuse employment while receiv- ing assistance in order to remain at home with her children. 2 3 Another court maintained that work requirements did not frustrate the purpose of AFDC by preventing the parent from remaining at home.284 In neither case did the court seriously question the legislative rationale for mandatory work requirements. B. State Work Programs, Statutory Conformity, and Dublino Immunity Instead of direct constitutional challenges, welfare lawyers have focused AFDC claims on statutory grounds, where they have met with greater success. In this area, litigation surrounding work requirements has concentrated on two basic issues: (1) the calculation and application of the \”work incentive disregard\” for employed AFDC recipients whose low income allows them still to qualify for AFDC,2 8 5 and (2) the con- 279 See Krislov, The OEO Lawyers Fail to Constitutionalize a Right to Welfare: A Study in the Uses and Limits of the Judicial Process, 58 MINN. L. REV. 211, 223 (1973). See also Simon, Rights and Redistribution in the Welfare System, 38 STAN. L. REV. 1131, 1486-1504, 1513-16 (1986) (discussing the limited success of welfare litigants in forging constitutional rights beyond the limited areas of procedural protection)- 280 See Goldberg v. Kelly, 397 U.S. 254 (1970). 281 Dandridge v. Williams, 397 U.S. 471 (1970) (2-3-3 decision upholding Maryland’s maximum welfare grant provision which ignored family size). 282 Id. at 487. 283 Anderson v. Burson, 300 F. Supp. 401 (N.D. Ga. 1968). 284 Stacy v. Ashland County Dep’t of Pub. Welfare, 164 Wis. 56, 159 N.W.2d 630, 636 (1968). 285 For a description of the \”30 and 1\/3\” income disregard, see supra note 26 and accompanying BERKELEY WOMEN’S LAW JOURNAL formity or contravention of state work programs with federal legislation, specifically Subchapter IV of the Social Security Act.28 6 The latter area-the relationship of state legislation to the federal AFDC statute- has particular bearing on the prospects for challenges to GAIN under federal law, and thus requires further exploration. Federal courts have generally determined whether particular provi- sions of state work rules contravene the purposes or provisions of federal work incentive programs, resolving any conflicts of substance between federal and state work programs.287 On the whole, states have greater latitude in the development of state work programs and separate rules governing such programs than in other areas of AFDC administration. The United States Supreme Court’s decision in New York State Department of Social Services v. Dublino 288 set the tone in its holding that federal WIN provisions did not preempt the New York state work pro- gram, but merely limited its scope and application. Congress, the Court concluded, did not intend the WIN program to lead to the termination of all state work programs, nor did it intend WIN requirements to be the exclusive work rules for AFDC recipients.289 The Court found that \”[t]he Act allows for complementary state work incentive programs and procedures incident thereto-even if they become conditions for contin- ued assistance. 290 In Dublino, the Court appeared to depart from the strict construc- tion of the AFDC statute with regard to federal standards.291 However, as Frank Bloch notes,292 Dublino can be harmonized with other cases requiring strict federal conformity if the AFDC statute is treated as com- posed of discrete units rather than analyzed as a unified whole. Describ- ing the Supreme Court’s response to the AFDC program, Bloch maintains that the Court looks first to the general section of the federal statute, but then interprets the specific language within a chosen analyti- cal framework that varies section by section. Whereas eligibility cases text. Indicative of the state and federal cases challenging the method of calculating this earned income disregard are: Heckler v. Turner, 470 U.S. 184 (1985) (effective amount of income disregard reduced by discontinuance of mandatory tax withholdings as a separate deduction in determining \”income\”), rev’g Turner v. Prod, 707 F.2d 1109 (9th Cir. 1983) (\”income\” for AFDC purposes did not include mandatory payroll withholdings), superseding Shea v. Vial- pando, 416 U.S. 251 (1974) (state cannot adopt a standardized allowance for work-related expenses which does not allow an applicant to deduct expenses that exceed the standard); James v. O’Bannon, 715 F.2d 794 (3d Cir. 1983) (amounts mandatorily withheld from wages were not required to be deducted or disregarded from beneficiaries’ income) (declining to fol- low Turner v. Prod supra), cert. denied sub nor. James v. Cohen, 170 U.S. 1050 (1985). 286 42 U.S.C. 601-679(a) (1983 & Supp. 1988). 287 New York State Dep’t of Social Servs. v. Dublino, 413 U.S. 405 (1973). 288 413 U.S. 405. 289 Id. at 414-21. 290 Id. at 422. 291 See Carlson v. Remillard, 406 U.S. 598, 600 (1972); King v. Smith, 392 U.S. 309 (1968); Townsend v. Swank, 404 U.S. 282 (1971). 292 Bloch, Cooperative Federalism and the Role of Litigation in the Development of Federal AFDC Eligibility Policy, 1979 Wis. L. REV. 1. AFDC WORK PROGRAMS ,involving the definition of \”dependent child\” have been consistently interpreted since King v. Smith293 to require strict compliance with the ,federal statutory definition, the WIN provisions of the Act, on the other hand, have been held to be based on a looser concept of cooperative ‘federalism. 294 In cases since Dublino, courts have generally allowed state social services to develop independent work rules.295 As the court stated in Davis v. Reagan,296 \”courts are not to void the additional requirements only ‘[s]o long as the State’s actions are not in violation of any specific provision of the Constitution or Social Security Act.’ ,297 Only when there is substantial conflict will work requirements be struck down.2 98 This posture toward state sponsored employment programs on the part of federal courts coincides with the strong Congressional endorse- ment of state initiatives found in the OBRA amendments and the current redirection of federal AFDC policy. 299 OBRA relies heavily upon state sponsorship, with little in the way of federal standards or overall guid- ance.3\”\u00b0 Given the precedent established by Dublino and its progeny, and the lack of federal standards since OBRA, there will undoubtedly be few litigation impediments in the federal courts to the process of defeder- alization which allows states flexibility to design their own work 293 392 U.S. 309. 294 See Bloch, supra note 292. The only exception to this pattern of judicial restraint has been in cases involving the AFDC-U program, where states have denied aid to entire families because of the head of household’s refusal (without good cause) to accept employment through WIN. On the basis of the supremacy clause, this was determined to be a violation of the federal WIN legislation which calls only for termination of aid to the uncooperative parent but not to his or her children. See, e.g., Fritsch v. Wohlgemuth, 474 Pa. 390, 378 A.2d 849 (1977); Davis v. Reagan, 485 F. Supp. 1225 (S.D. Iowa 1980), aff’d 630 F.2d 1299 (8th Cir. 1983). 295 The leading case in this area is Woolfolk v. Brown, 538 F.2d 598 (4th Cir. 1976), in which the court held that state rules requiring persons not within a work incentive program area to comply with state work rules rather than registering voluntarily for service under the federal WIN program, were not in conflict with federal regulations. See also Fitch v. Public Welfare Division, 27 Or. App. 799, 557 P.2d 253 (1976) (state rule requiring automatic suspension of benefits to recipient refusing job referrals without good cause not in conflict with federal work incentive program). 296 485 F. Supp. 1255. 297 Id. at 1261 (citing Jefferson v. Hackney, 406 U.S. 535, 541 (1972)). 298 Id. 299 When enacting the 1981 OBRA amendments, the Senate Finance Committee made the follow- ing comment concerning the impact of welfare litigation upon state-sponsored employment programs: \”[Under court decisions, States are precluded from establishing AFDC work pro- grams on any basis which differs significantly from the operations of the WIN program.\” However, this interpretation of court decisions sharply overstates the federal courts’ response to state employment programs and federal guidelines. SENATE FINANCE COMM., supra note 29, at 774-75. 300 The language in the three new work provisions added by OBRA, 42 U.S.C. 609, 614, and 645, is fairly broad, suggesting only the rough contours of a suitable employment program. State legislatures have been highly responsive to OBRA’s invitation to design their own work program: by May, 1982, over half the states had applied to operate Work Incentive Demon- stration projects, while an additional ten states operated community Work Experience Pro- grams (CWEP) authorized under OBRA. Martin-Leff, Survey of State WIN Demonstration Application, 16 CLEARINGHOUSE REv. 42 (1982). See also Sklar, supra note 3, at 30. BERKELEY WOMEN’S LAW JOURNAL programs.3 o1 At present, litigation on behalf of GAIN participants is not likely to be based on either federal constitutional or statutory grounds. However, state law, particularly any state constitutions which provide enhanced rights to privacy 302 or equal protection, 30 3 may offer protection to pro- gram participants. Also, because the GAIN statute reintroduces a signif- icant degree of direction and control by the case manager in regard to training options, work assignments, and other aspects of the program, an element of subjectivity reenters AFDC administration which may lead to litigation. 3\u00b0 Another important area of potential litigation lies in the discretion given to each county under the statute to design its own program.30 5 This flexibility will produce program differences from county to county which may lead to litigation in which welfare advocates rely on the state GAIN statute as the standard for minimum requirements rather than the federal Social Security Act. As the State Department of Social Services adopts regulations and implements GAIN, advocates are already chal- lenging county and state action on the basis of nonconformity to the state statute.30 6 Indeed, the first lawsuit involving GAIN30 7 asserts that the state’s limitation of the no-net-loss-of-income provision is in violation of the state statutory requirements. On the whole, however, GAIN faces few immediate litigation chal- lenges; nor does it appear that the program will become immediately mired in the courts. This is not to say that the legal rights of participants are necessarily unprotected, but rather to suggest that the first line of support by welfare advocates lies in helping participants to be informed of their rights under the statute itself. 30 8 301 If Congress adopts new standards in a federal reform bill, see supra Part I, this would create a new litigation terrain in the area of state conformity to federal statutes. 302 See, e.g., Michyle LaPedis’ interesting constitutional argument on behalf of GAIN partici- pants, based on the right to privacy in the California Constitution. LaPedis, supra note 248. 303 California’s equal protection clause, for example, offers enhanced protection in comparison to the federal Constitution. See Serrano v. Priest, 18 Cal. 3d 728, 557 P.2d 929, 135 Cal. Rptr. 345 (1976), cert. denied 432 U.S. 907 (1977); Darces v. Woods, 35 Cal. 3d 871, 679 P.2d 458, 201 Cal. Rptr. 807 (1984); King v. McMahon, 186 Cal. App. 3d 648, 656-58, 230 Cal. Rptr. 911, 914-16 (1986). 304 This may especially be the case if current proposals for federal welfare reform are imple- mented which contemplate a reassertion of case management and social work control over AFDC family life. See supra text accompanying notes 64-68 for a discussion. 305 CAL. WELF. & INST. CODE 11320.2, 11320.3 (Deering Supp. 1988). 306 See, for example, the discussion of market rates for childcare, supra text accompanying notes 235-36. 307 Sanchez v. McMahon, No. 361-772 7 (Fresno Super. Ct., filed Feb. 26, 1987). 308 In many counties, attorneys from legal services offices have actively participated in GAIN development on the Local Advisory Councils. Thus, county GAIN administrators have received some degree of legal input from welfare advocates at the development stage, perhaps reducing areas of potential legal conflict. AFDC WORK PROGRAMS CONCLUSION GAIN is part of a new wave of AFDC reform, as states throughout the country design and implement AFDC work programs. Whether or not these programs will actually benefit women rests in the specifics of program design. Because of the diversity of the AFDC population, and the complexity of both economic and social forces affecting AFDC fami- lies, it is not enough for advocates simply to favor or oppose workfare and work programs. Programs must be judged in terms of their success in lifting families out of poverty, rather than just getting them off welfare. Sanctions for noncooperation should be carefully scrutinized for their potential to render an AFDC family homeless or without basic survival requirements. In this Article, we have discussed the history of federal AFDC work programs and the recent shifts in federal AFDC policy. We have also provided a relatively detailed analysis of GAIN, a program which is con- sidered one of the more progressive state initiatives among AFDC work programs. Our hope is that advocates can use this information to join in the policy debate and also monitor the implementation of local AFDC work programs. At a minimum, AFDC programs should be voluntary and free from economic sanctions. AFDC is, after all, a mainstay of our country’s tat- tered poverty safety net. It exists because the economic and social sys- tem fails to provide jobs that pay a living wage. Mandatory AFDC work programs that can result in loss of this last means of support for unem- ployed families should not be tolerated. To implement an effective voluntary system requires examining not only the welfare system, but the local education, childcare, and job train- ing programs as well. A better understanding of GAIN and its conse- quences for low-income women and children may help advocates to effectuate concrete changes in all of these programs. Berkeley Journal of Gender, Law & Justice December 1987 California’s GAIN: Greater Avenues or a Narrow Path – The Politics and Policies of Welfare Reform and AFDC Work Programs in the 1980s Ann VanDePol Katherine E. Meiss Recommended Citation Link to publisher version (DOI) California’s GAIN: Greater Avenues or a Narrow Path – The Politics and Policies of Welfare Reform and AFDC Work Programs in the 1980s ”

” ( RECIPIENT IMPACT STATEMENT ON THE WORKFARE PROVISIONS OF H.R.1720 MAY, 1987 PUBLSIHED BY THE COALITION OF CALIFORNIA WELFARE RIGHTS ORGANIZATIONS 1900 \”K\” STREET, SUITE 203, SACRAMENTO, CA 95814 TABLE OF CONTENTS H.R. 1720 in Brief Section 416(a) a~d (b)- Program Operation Section 416(c)- Participation Requirement Section 416(d)- Priorities Section 416(f)- Assessment Section 416(g) Agency-Client Agreement and Case Management Section 416(h)\u00b7 Range of Services Section 4160)-Workfare \”action 416 (k)-Job Search Section 416(1)-Sanctions Section 416{m)- Regulations Section 416{n)-Performance Standards Section 416(0) and (p)- Continuing Evaluation and Uniform Reporting Requirements Section 102- Federal Matching Rates Section 104- Effective date 1 2 3 4 5 6 7 8 9 10 11 12 ~ \\ 13 .14 ! 15 -1- H.R. 1720 IN BRIEF , THEGOOD Two-parent families will be eligible for public assistance in all states by 1990. Work related deductions would be available at all times. There will be no time limits. ~ithin .a 5 year period about 18 states would have to raise their AFDC benefits to 15% of the median income level for the state in question. Repeals the current provisions which deems the income of a parent to be available to the minor even if the minor lives separately from his or her parents. THE BAD. Mandates the state welfare department to require that a parent with children over the age of three years to participate full time in a workfare program and participate part time if there is a child over the age of 1. Allows states to mandates that both parents of two-parent families do workfare duties for their welfare benefits. There are no assurances that the family would have a certi- ficate which guarantees the participant that a care slot will be available if employment is found. The state welfare agency, not the state employment agency, would be required to operate the employment programs for wel- fare recipients. Parent(s) receiving AFDC benefits would no lon- ger be referred to the state employment agency for job services and training where all other people go for training and jobs. This is an attempt to separate the poor from all other non-wel- fare persons seeking jobs and training. State agencies would not be required to provide remedial education to all persons without a high school degree. The bill contains a big loophole for state agencies who do not think that welfare recipients need education. A recipient could begin his\/her participation in the program by being referred directly to a six (6) month workfare program. The six (6) month workfare assignment could be repeated year after year without any limitation if a person reapplies for aid. States can require participants to do job search while participating in other components, such as, education, training, workfare, except for remedial education. Thus, at any given time, the participant may be required to look for jobs that do not exist Recipients can be forced to ttain for jobs that would make them financially poorer. In many cases, the parents would not be able to feed or house their children because they would be forced to use their food and rent money for child care and other work-related expenses. Minors receiving AFDC benefits will be forced to live with their parents. In computing the AFDC benefits, clients would not be allowed to deduct valid child care payments. Rewards state agencies in the fonn of financial incentives when services are provided to volunteers but fails to impose any penalties on the state for client abuse and violating the Jaw; which is common practice in America. Imposes severe sanctions against clients who fail (as opposed to refuse) tc;> cooperate with the workfare workers without good cause. The bill fails to define what constitutes good cause and allows the state agency to sanction the parent or both parents of the family for at least three months, upon the second or subsequent failure to cooperate or participate. This means the state agency can sanction families for months and months, depending upon who operates the program or who is the Governor of the State. The mandatory workfare programs becomes effective in 1989, but the grant increases become effective in 1993. The bill does not mandate any priority for participation. Rather, it merely suggests that states give priority to volunteers and long term welfare recipients. States would get a 60% fede- ral match for job search and workfare activities, in lieu of the current 50% match. This would increase the amount of funds that state agencies can have to operate workfare and job search programs. States would be required to operate a workfare job search program, even if there are hardly any jobs in the community. Workfare is not mandated as a training program, rather it is a program whereby welfare recipients would provide uncom- pensated labor to federal, state and local governments. In many quarters, this is known as involuntary servitude or SLAVERY. -2- SECTION 416 (a) and (b) PROGRAM OPERATION-OPPOSE ‘SUMMARY OF THE SECTION This section requires the State to operate an employment program for welfare recipients. It will be operated by the State welfare agency in all political subdivisions of the State through a plan that shall be submitted to the Secretary of HHS pnor to the effective date of this section. RECIPIENT IMPACT STATEMENT Subsection (b)(l) requires each State to provide these services throughout the State without regard to the unemployment rate, that very few employers have hired a new person in months and notwithstanding the fact that the State may be primarily argricultural. This bill will force welfare recipients to conduct job searches in local regions where there are no jobs. This bill will create new jobs for workfare bureaucrats, i.e., jobs which monitor welfare recipients looking for nonexistent jobs and sanctioning recipients for failing to find jobs that do not exist. Subsection (b )(2) mandates that the private sector and local governments be involved in the planning and orogram design. The bill fails to mandate that program uticipants and their representatives be involved in the planning and program design. Subsection (b )(3) mandates that the State welfare agency be the agency responsible for the administration of this employment program for welfare recipients. The jobs and training program for welfare recipients should be operated by the State employment agency which operates the jobs and training program for non- welfare recipients. Having the State and local welfare agencies operate the jobs and training programs for welfare recipients promotes job segregation and redlining. RECOMMENDATIONS AMEND SECTION 416(b)(l) to mandate that services will be provided in all political subdivisions only if the unemployment rate is more than 7%. Amend Section 416(b)(2) to mandate that representatives of the locai legal services and welfare rights organizations, if any, be included in the planning and program design process. Amend Section 416(b)(3) to mandate that the State employment agency operate the employment and training programs for we!f are recipienis. The Commissioner of New York stated before the House Education and Labor Committee that welfare agencies deal exclusively with welfare recipients. Therefore, it would be unlikely that the State Welfare Department could make welfare recipients competitive with non-welfare recipients. SECTION 4l6(c)-PARTICIPATI0N REQUIRE- MENTS-OPPOSE SUMMARY OF THE SECTION This section specifies who must participate in the pro- gram. All persons with children over the age of three (3) years of age are required to participate in the pro- gram. States may set participation priorities, but are not limi- ted to the sequential order as set forth in this section. Persons working less than 20 hours a week will be re- quired to quit their job and participate in this workfare program. Persons may be allowed to complete a vocational and technical training program designed to lead to employ- ment. The bill retains the established exemptions, such as ill- ness, persons over the age of 60 years old, or the ill- ness of another family member. Finally, States can force welfare mothers (including nonbiological parents, such as grandparents or elderly relatives) with children, between the ages of 1 and 3 years, to participate in the workfare program, if the State provides the child care that the State agency believes the mother needs. RECIPIENT IMPACT STATEMENT The bill enumerates certain priorities which include the word \”including\” which makes possible an array of other categories of persons that States can give priority to, including everyone receiving and applying for AFDC. Thus, this section contains \”cosmetic\” prio- rities that have no \”bite\”. Moreover, this bill defines a \”long term\” AFDC recipient as having been on aid for 20 months during the past 24 months. This is a far cry from the \”generational wel-fare recipient\” who was viewed to be the \”long term\” welfare recipient. -3- This definitional change opens the door for the neo conservatives to launch another propaganda war b)’ talking about the fact that 90% of the people on welfare are \”long term\” welfare recipients as defined by \”our democratic friends\” in Congress. Persons who work part-time should never be forced to quit his or her job to work in a federal, state or local government workfare project. In many cases, part- time jobs become full-time jobs. There is no reason to force welfare recipients to quit their jobs because workfare bureaucrats need clients to justify their own monthly paycheck. This section does not allow AFDC recipients to complete their self-initiated education or training. It appears that the bill assumes that welfare recipients are not clever enough to initiate a job training program on their own without the whip of the workfare bureaucrats. AFDC recipients who embark upon the road of self-initiated education or training should be allowed to complete the program. RECOMMENDATION Amend this section to: Mandate that State agencies follow the priori- ties set orth in the law and prohibit any deviation from those priorities. Exempt persons from mandatory participation in the program who work part-time. Provide that any person who is cu\”ently in, or en-rolled in, a self- initiated education or training pro-gram be allowed to complete that program before being required to participate in the program under this secton. Only biological parents shall be mandatory partici- pants. -4- SECTION 416(d)-PRIORITIES UMMARY OF THE PROVISION This section provides that, to the extent that the State’s resources do not permit the inclusion of all mandatory recipients, then the State shall provide services to recipients consistent with the priority set forth in the law. RECIPIENT IMPACT STATEMENT This is another example of unrealistic priorities. The priority is applicable only if the State cannot seive all persons; most States would seive all persons. Therefore, the priorities set forth in this section are irrelevant. RECOMMENDATION Mandate that the priorities outlined in this section be followed unconditionally. The State agency should not be allowed to skip a priority without first conducting a public hearing and demonstrating that there are no person unserved in tha.t priority. SECTION 416(0-ASSESSMENT- OPPOSE SUMMARY OF THE SECTION This section provides that the State welfare agency shall make an initial assessment of the educational needs, skills, and employability of each participant. After the assessment, the State agency will develop a family support plan, which \”to the maximum extent possible\” reflect the preferences of the family members involved. -5- RECIPIENT IMPACT STATEMENT This section exposes the false assertions that HR 1720 empowers recipients to make choices as to the method of getting off welfare. The truth is that only the State welfare agency has the real power to decide what the client should do. The language of this section, which provides that the plan shall reflect the preference of the family \”to the extent possible\” demonstrated that the power belongs to the workfare bureaucrats. RECOMMENDATION On page 11, line 10 strike the word \”to:\” and line 11. This would give us some hope that the preferences of the family would be considered. -6- \”‘~CTION 416(g) AGENCY-CLIENT AGREEMENT Every person realizes that only parties in a equal . iD CASE MANAGEMENT-OPPOSE bargaining position can enter into a valid agreement. SUMMARY OF THE SECTION This section provides that following the initial assess- ment, the county welfare\/workfare bureaucrat and the client shall enter into an agreement. This agreement will set forth what the client must do and what the State agency must do. Clients may file a fair hearing request to resolve disputes relative to client-agency agreement. However, the law makes it very clear that \”In no case shall any agency-client agreement entered into pursuant to this subsection, give rise to a cause \u00b7 of action against the Federal Government or any officer or agency there- of if any party to such agreement fails to observe its terms.\” Each family member required to participate will be as- signed a case manager .. RECIPIENT IMP ACT STATEMENT This section demonstrates that an agreement between the welfare agency and the client is actually a one way street. Clients can be sanctioned for failing to coope- Tate or participate, but the federal government and its ,ents are not responsible for refusing to comply with me agreement they entered into with the welfare recip- Oient. It shows the hypocrisy of the alleged client-agen- cy agreement.In reality, the client-agency agreement is a statement wherein the state workfare bureaucrat spells out what the recipient must do so that their children will continue to receive aid. If the recipient fails to do what the State workfare bureaucrat say has to be done, their children would not receive welfare benefits for a specified period.In reality, the client-agency agreement is a statement wherein the state workfare bureaucrat spells out what the recipient must do so that their children will continue to receive aid. If the recipient fails to do what the State workfare bureaucrat say has to be done, their children would not receive welfare benefits for a specified period. The AFDC client applies for aid to support his or her children. If the client wants the children to receive aid, the client must enter into this agreement. If the client does not enter into the agreement, the family’s application for aid is denied so that they receive no aid, then the family will be forced onto the streets ~d to the garbage cans they go. They become another statistic to the ever growing homeless families of America. RECOMMENDATION The State agency shall assess the participant. The out- come of the assessment, the name of the local legal and welfare rights office, the availability of the various types of supportive services, including a recommended component for participation shall be mailed to the participant. The participant shall have the right to select either the recommended component or one of his or her choice and the rig ht to request the services the client be- lieves is needed. The component selected by the recipi- ent shall be deemed to be \u00b0\”~-:–re–i.Jpriate, unless there is clear and convincing evi’dence that the component selec- ted by the participant is inappropriate. This would assure that client would be empowered to select a reasonable component and ask for supportive services, without having the workfare bureaucrat breathing down their neck and telling them what they should write on the form, which is a common practice within the welfare .system. CCWRO has published a proposed \”Welfare Reform ; Bill\”. This bill has specific language that contains all necessary protections that clients need for a agency- client agreement. With that language this alleged agreement will be another cruel joke upon the needy of America. -7- SECTION 416(h) RANGE OF SERVICES-OPPOSE Some States, like the State of California, maintain that SUMMARY OF THE SECTION This section provides that each person shall be entitled to a range of services which must include remedial education, skills training and job search services, plus two (2) services from the following list of services: (1) on-the-job training; (2) work supplementation; (3) workfare; or (4) other education and training activities as determined by the State and allowed under federal regulations. Persons without a high school degree or its equivalent will receive remedial education \” … except in the case of a participant who demonstrates a basic literacy level and whose family support plan identifies a long-term employment goal that does not require a high school diploma … \”. A person cannot be required to stay away from their home overnight in order to participate in the program. This section prohibits displacement of current workers and contain comprehensive displacement language. No person shall be assigned to a position which would result in net loss of income, which is not defined. RECIPIENT IMPACT STATEMENT This section fails to provide recipients with an unifor- med full range of services. Thus, persons in different states and different counties within the same State will receive different types of services. Moreover, when a person moves from one place to another, they would not be able to pick up where they left off, rather, they will be forced to start all over again, which is not an efficient way of operating a program. refugees do not need to learn to speak English because there are many people in America who work without speaking English. Given this type of attitude, this section contains a big loophole; no one would need a high school degree since many low paying jobs are available to those without a high school education. . Under the WIN Program, persons who must travel more than two hours each way are exempt from the program. This section could force persons to travel four (4) to six (6) hours each way without exempting them from the Program, because they would not be away from home overnight. RECOMMENDATIONS 1. Mandate that the State agency allow the participant to select from the full range of services, rather than from a limited range of services. If the services are not available, then the participant shall be placed in an unassigned pool until the services selected by the participant becomes available. 30 days following the selection of a particular service by the participant the State agency shall mail a notice to the participant informing him or her of the rig ht to select another component on a New Component Selec- tion Form. Any person who does not have a high school diploma, should be required to participate in a remedial edu- cation program and they cannot be required to participate in any other service until they obtain a high school degree. No person should be required to participate in the pro- gram unless the trip from home to the assignment is less than 2 hours each way. -8- SECTION 416(j)-WORKFARE-OPPOSE 1his section allows State agencies to establish a work- fare program whereby welfare mothers raising children will have to work for the funds they receive which meet their basic survival needs. \”To the extent possible, the prior training, experience, and skills of a recipient shall be used in making approp- riate work experience assignments. The workfare program will be limited to a one-time on- ly six (6) months assignment which cannot be repea- ted. They must work off their grant by dividing the monthly grant by the existing hourly pay scale estab- lished for the position in which the participant is assig- ned less any child support payments being paid to the recipients or to the State on behalf of the recipient. RECIPIENT IMP ACT STATEMENT The issue of whether Americans should be compen- sated for their labor or forced into involuntary servi- tude was decided during the Civil War. There are some individuals in our society who just will not accept the fact that slavery has been abolished in America and will do everything in their power to turn the clock back to the dark ages. Workfare has never been operated to help the poor, rather it was designed for the sole purpose of puni.,; shing the \”undeserving poor.\” RECOMMENDATION Repeal the entire workfare section. OR Limit the workfare duty to three (3) month\/or each in- dividual, which was the duration of the San Diego County Workfare Program. Allow participants to select a workjare site of their own choosing from a list of available workfare sites. SECTION 416(k) JOB SEARCH-OPPOSE A person would be required to perform an eight (8) week job search program \”in such manner as the State agency determines (in each particular case). Job search may be required by an applicant while his or her appli- canon is being processed. After eight (8) weeks, the participant must be placed in an education, training or workfare assignment, and be requiredto simultaneous- ly to do job search. RECIPIENT IMPACT STATEMENT This section leaves the door open for the State agency to require that participants make 25 applications a week for nonexistent jobs. The State may require that diffi- rent clients make varying numbers of job contacts. If the workfare bureaucrat likes a certain client, then that client will have to make fewer job contacts than other clients. Som~ State agencies have found the easiest way to make families homeless. A family without any funds is required to do job search. Naturally, they will not be able to complete their job search assignment, thus their application will be denied for failure to complete their job search assignment. An ideal way of cutting the welfare rolls. -9- An eight (8) week job search is wasteful. In San Diego, recipients were required to do a three (3) week job search. Having a person do workfare, education or participa- ting in a training program while looking for a job at the same time doesn’t make sense. What does a person do who is in training and has done five of the six months and somebody offers him or her a job? Should he or she accept the job or complete the trainini? Under this section if he or she refuses to accept the Job, they will be sanctioned. It seems stupid doesn’t it? RECOMMENDATION A person shall only be required to do a three (3) week job search and be required to contact no more than six (6) employers a week. The participant should also be required to do a three week job search assignment after completing a training program that was designed to least two full months of aid payments.lead employment. No person should be required to do job search or participate in this program unless they have al- ready been found to be eligible for aid and have received at their first f amity assistance payment -10- rCTION 416(1) SANCTIONS-OPPOSED SUMMARY OF THE SECTION Thi~ ~ection provides that any participant who fails to participate without good cause shall receive AFDC be- . n~fits only_ f?r the children as long as they continue to fail to participate. Once they agree to participate, their f~ benefits shall be re~t~red. If the family member fails to cooperate or pamc1pate a second time without good cause, then they will not be aided (but the chil- dren will) for a minimum of three months. No sanctions will be imposed until conciliation efforts have been made to resolve the issue. \u00b7 RECIPIENT IMPACT STATEMENT This section is an improvement over the current federal regulatio’!s, whi~h ~low for a six ( 6) month sanction of the entire family m the case of a two-parent family. The major problem with this section is that for the second offense it has a durational ineligibility period. To expect a family of four to live on an \u00b7AFDC check for a family of two is ridiculous. In the final analysis ~ ones who will suffer the most will be the children: .. nese families may very easily become homeless. ~e. conciliation provisions in this section are very rmmmal an~ ~o not represent a meaningful protection to poor families from needless sanctions. RECOMMENDATION San~ti~ns shall be impo_st:d only as long as the participant refuses to parncipate. Once the participant agrees to participate, the sanctions should be stopped immediately and aid for tha,t person should restored effective on the day they agreed to participate. In many States, i~ takf!s the welfare agency 45 days to process the application of the person who is reapplying for aid. If a p~rson agree~ to p~rticipate and then refuses to participate twic~ in a given month, then that person, and not the family, should be sanctioned\/or 30 days. Conciliation in this section is very limited. Conciliation wou~d.work if the State agency is required to notify the parncipq.n_t b~ letter of the exa~t act judged to be nonpartzcipation or noncooperation, what constitutes good cause, a proposed conciliation plan which would cure the alleged noncooperation or nonparticipation which shall be directly related to the noncooperation o; nonparticipation act, space for the participant to set fo_rth his o~ he~ proposed _conciliation plan, if they disagree with the proposed conciliation of the State agency, and the names, addresses and telephone numbe_rs of the local legal aid and welfare rights agencies. If the participant agrees to the proposed conciliation and completes it, the State agency shall mail him or her a letter stating that the conciliation plan was successfully completed. Such !l conciliation process would resolve most of the sanctions. Specific language for sanctions and conciliation can be found in CCWRO’s proposed \”Welfare Reform Bill\”. -11- SECTION 416(m)-REGULATIONS-OPPOSED SUMMARY OF THE SECTION This section provides that regulations implementing the network program will be developed wi~ six ( 6) months in consultation with the State agencies. RECIPIENT IMPACT STATEMENT There is no reason to promulgate regulations imple- menting the workfare provisions of this bill prior to promulgating regulations for the improvements in HR 1720. In fact, we believe that the entire bill should become effective on the same date and that all of the regulations be promulgated at the same time. We also object to the fact that only the State agen.cies are consulted in the promulgation of the regulattons and the representatives of the consumers of the program are ignored. RECOMMENDATION Title 1 of H.R. 1720 shall become e\/fec~ive when all other provisions of the bill become effective. -12- \”ECTION 416(n)-PERFORMANCE STANDARDS-It is interesting that the Secretary has six (6) months to )PPOSE develop regulations, and the Secretary can take action on State plans immediately, long before any perfor- SUMMARY OF THE SECTION mance standards are developed. \u00b7 This section sets forth the performance standards for States operating the network progam. The Secretary has one ( 1) year to establish performance standards in consultation with Congress, States and localities, edu- cators and other interested persons. These standards shall provide rewards to States who target their pro- gram to the designated groups as set forth in the prio- rities of the network program, rewarding States that provide intensive services to participants, rewarding States that place strong emphasis on participation by volunteers, etc. RECIPIENT IMP ACT STATEMENT The entire scheme of performance standards evolve around how much more the federal government will give the State to do what the States are already required to do. There are no penalties when the State violates the law. There are no real performance requirements- the basic requirement being that the States get paid based upon the number of persons they are directly responsible for getting a job and it has been verified. It is evident that performance standards are not requi- red to assure that taxpayers get a fair return on their investment; rather, it 1s for the sole purpose of giving more II19ney to States without any adequate controls and accountability for the program operation. Of course, the participants will be held accountable. If the participant fails to cooperate, severe sanctions are invoked. ff the State fails to comply with the law, it wil not even get a slap on the wrist. RECOMMENDATION. Rewards should be equitably divided between the par- ticipants and the States. States should only receive funding for the number of mandatory participants who obtained, maintained and whose employment has been verified. States will receive additional funding for providing ser- vices to volunteers and persons who have been on aid continously for six (6) years, without consideration that these persons find employment. This would assure that States would target their ser- vices to long term recipients and volunteers -13- SECTION 416(0) and (p) CONTINUING EV ALU- ATION AND UNIFORM REPORTING REQUI- REMENT-OPPOSE SUMMARY OF THE SECTION This section provides that the Secretary shall contin- uously evaluate the program and establish uniform re- porting requirements. RECIPIENT IMP ACT STATEMENT The General Accounting Office published a report sta- ting that HHS failed to establish any kind of evaluation or reporting requirements upon the States. This section grants discretion to the Secretary discretion to establish an evaluation and reporting requirement, when it has al- ready been demonstrated that HHS is not interested in monitoring State welfare agencies. Thus, Congress needs to be very specific in the statute in identifyin e contents of the States’ reports to insure that the infor- mation flowing from the States will provide adequate information so that Congress can evaluate the Pro- gram. RECOMMENDATION The statute should provide for specified types of in- forma.tion that state agencies shall provide HHS to assure that an adequate evaluation can be done of the program. CCWRO ltas made a copy of its \”Welfare Reform Bill\” which contains the necessary language for this section. I . -14- SECTION 102-FEDERAL MATCHING RATES- ‘,PPOSE SUMMARY OF THE SECTION This section provides that the federal government would contribute 60% towards the administration of the network program and the appropriation would be open-ended. RECIPIENT IMP ACT STATEMENT W, e oppose having an open-ended appropriation for this program, when a program such as Food Stamps is a close-ended appropriation. Moreover, an open-ended appropriation without any safeguards for State abuses sets a dangerous precedence. RECOMMENDATION The appropriation should be close-ended and should be based upon the actual cost of serving volunteers and persons who have been on aid continously longer than six (6) years. Mandatory participants shall only funded if they obtain and maintain a job that is a direct result G their participation in the network that has been verified -15- SECTION 104-EFFECTIVE DATE-OPPOSE SUMMARY OF THE SECTION The network statute becomes effective on October 1, 1989. Other portions of the act, such as the inclusion of two-parent families ~:ecome effective in 1990, the AFDC benefit increase~ :>ecome effective 1992, etc. RECIPIBNT IMPACT STATEMENT Generally statutes that benefit recipients are last to go into effect, or are repealed before they go into effect and statutes that are not designed to help the poor are the first ones to be implemented. RECOMMENDATION. The provisions of network shall go into effect as soon as all of the other sections of the bill have gone into e\/f ect and no sooner. ABOUT THIS PUBLICATION The recipient impact statements of the NETW ork program is a product of intense discussions with welfare advocates who, combined, represent centuries of experience in workfare programs. Legal analysis was done by Grace Galligher, Attorney at law. The primary author of the report was Kevin Aslanian, who has been actively involved in welfare rights advocacy for over 15 years. He is also a former recipient of welfare programs. CCWRO wishes to express its appreciation to all persons who participated in this project and to those who will read this analysis. Language implementing many of the recommendations contained in this report are embodied in the CCWRO \”Welfare Reform Proposed Bill of 1987\”, which has been made available to most congressional offices. Persons wanting copy of this publication should contact CCWRO at 1900 \”K\” Street, Suite 203, Sacramento, CA 95814, or call (916) 442-2901. – . . STOP . . . . H.R.1720 . ABOUT CCWRO CCWRO is an organization ofwelfare recipient organizations throughout the State of California. We also work with welfare rights organizations throughout the nation. CCWRO publishes a monthly publication called the \”California Workfare Reporter\”. CCWRO has also published an analysis off amilies who were victimized by the workfare and welfare program operators. Our publications and analysis are based upon the true stories and views of the poor people who participate in the various public assistance programs throughout the United States of America. CCWRO has testified before Congress relative to workfare programs several times during the past few years. ”

” RECIPIENT . IMPACT STATEMENT S2513 ~~ti—iti—-~.,_____.__. HR4929 June, 1986 COALITION OF CALIFORNIA WELFARE RIGHTS ORGANIZATIONS SECTION-BY-SECTION ANALYSIS OP THE NEW DEMOCRATIC WORKFARE BILL S 2513, Senators Moynihan, Kennedy & Kerry HR. 4929, Congre!mpersons Mr. Levi’!, Ms. Kennelly, Mr. Rangel and Mr. Gephardt EXECUTIVE SUMMARY OF THE BILL This bill would create a new program called \”Work Opportunities and Retraining Compact of 1986\”. Who Will Be Required to Participate? The program would require all AFDC recipients who are currently required to register and participate in the WIN program, to participate in this program. All participants would be required to participate in the program in \”good faith\”, whatever that may mean. Who Will Operate the Program? The program will no longer be operated by the jobs people, which is the state employment agency; rather it will be operated by the \”welfare people\”, who are not in the business of jobs, rather they are in the business of issuing public assistance benefits to persons it determines to be \”eligible\”. How Will the Registration Process Work? There will be a single intake and registration point, which will be the state or local welfare agency. During the registration process the agency will assess the employment capabilities of registrants within an unspecified time period. What Happens After Registration? After registration the statute provides that participants will be provided with what is termed \”in-depth counseling\”. Upon the completion of the in-depth counseling the state welfare agency will develop an employability plan and assign the participant to one or more of the following programs: \u00b7 -WIN – WIN-DEMO – WORKFARE — WORK SUPPLEMENTATION -1- – WORK DEMONSTRATION PROGRAlYI UNDER SECTION 1115 – JTPA – JOB SEARCH, VOCATIONAL EDUCATION – AND OTHER STATE, LOCAL OR PRIVATE PROGRAMS WHICH ARE CONSISTENT WITH THE GOALS OF THE WORK PROGRAM State Flexibility The statute provides that states can take any or all actions which are not \”inconsistent\” with this law in order to achieve the program objectives. -2- Registration at the State or Local Welfare Agency- 402(a)(l 9)(A)-SUPPORT SUMMARY OF THE PROVISION This section would require that all AFDC recipients register for work with the state or local welfare agency, rather than the state employment agency. ANALYSIS OP THE PROVISION AND RECIPIBNT IMPACT STATEMENT The reason that persons were required to register for work with the state welfare agency was primarily to \”connect\” them promptly with the state job agency so they can get a job as soon as possible. In recent years a greater consideration has arisen for state welfare agencies. They have been subject to certain sanctions for \”welfare payment errors\” because the recipient who is required to register with with the Work Incentive Program (WIN) had not registered. This change would ensure that states would no longer face an error due to the fact that the recipient did not register with the WIN program. From the recipient point of view, this really makes no difference, because registration is merely a procedural step. RECOMMENDATION None -3- Redefinin the Criteria of Exem tion for Persons Who Live In a Place Which is Too Re- ~ 402 a 19 iii -OPPOSE SUMMARY OF _THE PROVISION This section would change the definition of \”remoteness\” as used to define conditions which would exempt recipients from participation in the WORC program. ANALYSIS OF THE PROVISION AND RECIPIENT IMPACT STATEMENT Existing law provides that any person who is so remote from the WIN program shall be exempt from participation in the program. The new law would provide that such remoteness only applies to the extent that there are no programs that the recipient can participate in. Thus if a person lives 200 miles away from the main office of the welfare department, but the little town that he or she lives in has a workfare project site, such a recipient would be required to participate in the program. Such a person would have to travel to the welfare department, register for work and go through the assessment. After they have been assessed, they would be required to make another trip to the main office for another so-called \”in-depth assessment\” before being assigned to the local workfare project site. RECOMMENDATION Maintain the current language of subsection (iii). Strike the words \”work incentive project\” and in lieu thereof insert the words, \”the intake assessment 0 -4- Requiring \”Good Faith\” Participation in the Program 402(aX19Xvi)-OPPOSE SUMMARY OF THE PROVISION This provision would require persons to participate in the program \”in good faith\”. The \”good faith\” standard would rep_lace the \”good cause\” standard. ANALYSIS OP THE PROVISION AND RECIPIENT IMPACT STATEMENT This provision would require participants to participate in the program in \”good faith\”. If the participant does not participate in good faith and has good cause to do so, he\/she can be sanctioned under this language. \u00b7 \u00b7 RECOMMENDATION Amend this section by stating that participants shall be required to participate or coope- rate in the program in good faith, unless they have good cause for refusal to participate or cooperate. -5- sanctions for Persons Who Do Not coo erate or Partici ate in the Pro ram in Good Faith- 402 a 19 F – OPPOSE SUMMARY OF THE PROVISION This section provides that any .person who is required to participate in the program shall be subject to a durational ineligibility period set by the Secretary if they do not participate in the program in \”good faith\” without good cause. ANALYSIS OF THE PROVISION AND RECIPIBNT IMPACT STATEMENT This provision would allow the Secretary of HHS to establish a certain period of time that a participant will be sanctioned for refusal to participate or cooperate in the program. Many sanctions are a result of misunderstanding between the participant and the workfare program operators. In addition, many, perhaps most, sanctions are imposed as a direct result of a deliberate policy adopted by workfare operators, which is to sanction as many recipients as possible in order to make a showing that the program is \”cost effective\”. Two-parent families are denied all AFDC benefits for a 90-day period the first time the principal wage earner refuses to participate in the program, and for a six month period the second and subsequent act of refusal to participate. In the cases of a single parent family, the parent will be deleted from the AFDC assistance payment for a period of 90-days for the first instance of refusal to participate and 6 months for any subsequent refusal to participate. As written, the bill would probably allow states to impose much harsher sanctions than those currently in place. These sanctions demonstrate that these work program are \”punitive\” in nature and indeed rather barbaric. In America the punishment must fit the crime. The crime in these cases is the fact that one of the parents have allegedly refused to cooperate with the workfare operators or participate in the workfare program. The punishment meeted out is to starve the entire family for up to six (6) months. What is the purpose of the sanction? If it is to cause the noncooperative parent and\u00b7 his or her children to suffer it serves its purpose well. But if it is to get the parent to coope- rate, then it fails to meet its objective. It continues to punish the parent and the family, even though the parent is willing to cooperate\/participate before the 90 days or 6 months are up. This provision defeats the purpose of the Social Security Act. It is anti-family. RECOMMEND A ‘110N Sanctions should be imposed as long as the participant refuses to participate or cooperate. Once . the participant informs the state agency that they are willing to cooperate or partici- pate, then the sanctions shall stop immediately and they shall be eligible for aid from the date they indicated their willingness to cooperate or participate. If the participant does this more than twice in a given a month, the sanction shall apply for that month. -6- Transferring the Program Administration to the State Welfare Agencies- OPPOSE SUMMARY OP THE PROVISION The bill would transfer the administration of the Employment Program for AFDC recipients from the Department of Labor to the Department of Health and Human Services. ANALYSIS OP THE PROVISION AND RECIPIENT IMPACT STATEMENT The Department of Labor (DOL) and the State Employment Agency (SEA) have always been the entities responsible for operating employment program for AFDC recipients. The state welfare agency is the \”welfare department\” which issues benefits to eligible families. The SEA is the \”jobs depart~ent\”, where AFDC recipients get jobs. The \”welfare department\” serves welfare recipients. The \”jobs department\” serves poor people, middle class people and highly paid people as well. With the separation of welfare recipients from the \”jobs department\”, a cfeu message is sent to employers. If you want cheap labor, call the welfare department. If you don’t want welfare recipients, call the SEA .. RECOMMEND A ‘ffON The program should be operated by DOL and SEA. The State welfare agency should only be responsible for registration for the employment programs and for conducting adminis- trative hearings. -7- State Welfare Agency Responsibility- 416(aX2)- OPPOSE SUMMARY OP THE PROPOSED SECTION This section provides that the state welfare agency (SWA) shall assist applicants and recipients in finding gainful employment and obtaining training and education which may be necessary to enable them to perform such employment. ANALYSIS OF THE PROVISION AND RECIPIENT IMPACT STATEMENT So far this sounds good. This is merely ~the goal of the program. It states that the state welfare aegncy will \”assist\” AFDC applicants or recipients with training and education to find employment. A reasonable person would assume that this means the program operators would ask appli- cants or recipients what kind of \”assistance\” do they need and the welfare agency would provide such assistancee Unfortunately the \”reasonable person\” concept has never been applicable to the welfare system. In reality, the way workfare programs are structured is that the workfare program opera- tors decide what is needed. The welfare recipients either accept these decisions face severe sanctions. This is how workfare operates in the real world. When state and local welfare agencies are handed \”flexi_bility\” to operate the program any way they choose, the results are predictable. The same mechanisms which operated under th~ banner of state’s rights’ in the field of civil RIGHTS legislation are operative in this case as well. Local politics, local prejudices, and pecuniary interests become the determining factors. Legislative intent and lofty preamble language is forgotten and poor children continue to pay the price. RECOMMENDATION This section should be amended to allow applicants or recipients to have total \”flexibility\” in deciding how they are going to navigate towards \”self-sufficiency\”. The state welfare agencies shall have the total flexibility to respond to the options choosen by AFDC recip- ients exercising such flexibility. Strict federal limits placed on the freedom of states to give power over recipients lives to program operators are vital to the viability of any proposed legislation, as is strict oversight at federal and congressional levels. -8- Establishing a Single Intake and Registration Process- 416(b)(l)- SUPPORT SUMMARY OF THE PROVISION This section provides that all AFDC applicants or recipients who are required to register for work under current law would register at the time they apply for AFDC benefits, rather than being referred to the employment service agency to register for work. ANALYSIS OP THE PROVISION AND RECIPIENT IMPACT STATEMENT This section is the only provision of the entire bill which would be beneficial to welfare recipients. \u00b7 Under the current process, recipients apply with the welfare agency, and then have to travel to the employment agency to register for work. This results in needless expenditure of transportation expenses for recipients. RECOMMENDATION None. -9- Assessment of the Employment Capability of AFDC Applicants or Recipients- 416(b)(2) OPPOSE SUMMARY OF THE PROVISION This section provides that upon application the state welfare agency shall assess the applicants’ or recipients’ employment capabilities. ANALYSIS OF THE PROVISION AND RECIPIENT IMPACT STATEMENT This section requires the state welfare agency to conduct an assessment. The section fails to specify how long this assessment will take. In California the proponents of the workfare program have stated that a three week job search period would be necessary to determine whether or not an applicant or recipient is ready for immediate employment. Thus under this language, state agencies can require all AFDC applicants to conduct an extensive job search as a part of this assessment. The statute does not state who would do the assessment, the welfare agency or the AFDC applicant\/recipient. RECOMMENDATION The statute should be amended to state: \” require the applicant or recipient to do a written self assessment indicating what kind of work the participant wants to do, and whether the participant believes that he or she needs education or training to achieve such an employment goal. The assessment of the participant shall be accepted unless the state agency has substantial evidence demonstrating that the participants’ assessment is incorrect. If the state agency determines that there is evidence demonstrating that the participants’ self assessment is incorrect, the state agency shall mail a Notice of Action setting forth the agencys’ determination. The participant shall have the right to contest this decision through a fair hearing as provided in section 402(a)(4).\” -10- \”In-Depth Counseling for Participant416(b)(3)- OPPOSE SUMMARY OF THE PROVISION This section provides for \”in-depth counseling\” to determine if the participant can find employment or is need of training or education. ANALYSIS OF THE PROVISION AND RECIPIENT IMPACT STATEMENT (b)(3) is very similar to (b)(2) with the only difference that in (b)(2) the state agency is required to do an assessment. In (b)(3) the state agency has to do \”in-depth\” counseling. These two sections seem to be duplicative. We have concerns about (b)(3) similar to those we have about (b)(2). RECOMMENDATION Repeal (b)(3) and merely add that participants are entitled to receive counseling if they request such counseling in writing. Counseling is very expensive. AFDC applicants or recipients should not be forced to sit through counseling which they don’t want. To do so would waste taxpayers dollars. -11- Pro rams That Ma Be Available to AFDC A licants or Reci ients Throu h a Contract Between the State Welfare Agency and the Operators of the Programs- 416(b) 4 OPPOSE SUMMARY OF THE PROVISION This section requires that state welfare agencies enter into a contract with the administra- tors of the WIN program, WIN-DEMO program, Community Work Experience Program (also known as workfare), Work demonstration programs under 1115, JTPA, Job Search, Vocational Education and any other st{lte, local or private state program which would further the goal of self-sufficiency. \u00b7 ANALYSIS OF THE PROVISION AND RECIPIENT IMPACT STATEMENT This section provides state welfare aegncies with an array of program to require AFDC recipients to participate. Many of these program provide. no protections for AFDC recip- ients. Examples of such programs is the WIN-DEMO program, 1115 programs and the new category of \”any other program\” in this bill. This \”any other\” category is the most dangerous one. Under this program welfare recipients can be used to pick cotton for farmers in the summer. Learning how to pick cotton can some day help that person find a job some place, that is provided the farmers fail find any more AFDC recipients to pick their cotton to work off their welfare checks. RECOMMENDATION There is no need for a contract between the state welfare agency and the various programs that exist on the book today. These programs do not discriminate and are available to AFDC recipients. All the state welfare agency has to do is to inform the participant of the available programs and allow the participant to select the program he or she wishes to participate in. -12- Development of an Employability Plan 416(b)(5) OPPOSE SUMMARY OF THE PROVISION This sections provides that the state agency will develop an employability plan for the AFDC recipient in concert with the administrators of the various programs mentioned in 416(b)(4). ANALYSIS OF THE PROVISION AND RECIPIENT IMPACT STATEMENT The primary problem with this section is that the employment plan for recipients to become self-sufficient is developed by the workfare program providers, rather than by the partici- pant. The participant will not be the person deciding how to embark upon the path towards self-sufficiency. This decision will be made by the workfare operators. If the program is to be successful, and if the participants are to feel that this is a program to help them, rather than a punishment program, then it is imperative that the participants have the primary role in the development of the employability plan. The state agency’s role should be that of a facilitator, assisting the participant to develop a plan which the participant perceives as his\/her own plan, i.e. a plan in which the participant has a sense of ownership- not a sense of something imposed by an impersonal bureaucracy. RECOMMENDATION This section should be amended to read: \”develop an employability plan for each such appli- cant or recipient. The applicant or recipient shall be provided with various services availab~e for the employability plan. Based on the availability of such services the participant shall develop his or her own employability plan and submit it to the state welfare agency. The state welfare agency may reject the participants proposed employability plan, provided the state agency has substantial evidence that the plan would not be successful. The state agency’s rejection of the participants’ proposed employability plan shall be in writing and it shall outline all of the evidence that the agency relied on for such such rejection. The participant may appeal such rejection through section 402(a)(4).\” -13- Assignment of Service to Participants- 416(b)(6) OPPOSE SUMMARY OF THE PROVISION This section provides that the state welfare aegncy will assign each participant to one or more of the programs set forth in section 416(b)(4). ANALYSIS OF THE PROVISION AND RECIPIENT IMPACT STATEMENT This section allows the state agency to decide which program or programs the participant will be required to participate in. There is no right for the participant to choose the program he or she may want to participate in. Moreover, many of these programs are multi-compo- nent programs. Participants should be given the right to choose the component of the program that they want to participate in consistent with the employability plan that he or she developed. This will enhance the participants’ self esteem and enhance the probability of successfully achieving self :-sufficiency. RECOMMENDATION A mend this section to allow the participant to choose the component of one of the programs that he or she wishes to participate in, provided it is consistent with the employability plan. -14- Take An or All Action Not Inconsistent With Pro ram Ob\”ectves SUMMARY OF THE PROVISION This section allows states to operate this program in any fashion they want, as long as such operation is not inconsistent with the program objectives. ANALYSIS OP THE PROVISION AND RECIPIBNT IMPACT STATEMENT This section eliminates any \”client protections\” embodied in the law. Under this section. state can ignore any or all protections, as long as the result _ of ignoring such protections is not inconsistent with the objectives of the program. For example, the objective of the program is to \”assist applicants for and recipients of Aid to Families with Dependent Children in finding gainful employment and in obtaining any training and education which may be necessary to enable them to perform such employ- ment . \” Given this objective, states may decide that they can require AFDC recipients with children under the age of 6 to participate in the program. Such participation would be consistent with the objectives of the program, although they are exempt from mandatorv participation in other sections of the law. .. RECOMMENDATION This section should be repealed. States already have too much flexibility. What is really needed is to give more flexibility to participants, to assist them in becoming self-sufficient. -15- Requiring Applicants and Recipients to Participate in the Program 41 S(c)(l )- OPPOSE SUMMARY OF THE PROVISION This section provides that all applicants and recipients will be required to participate in this program. ANALYSIS OF THE PROVISION AND RECIPIENT IMPACT STATEMENT This section requires that all applicants be required to participate in this program. In the AFDC program state welfare agencies are allowed to take up to 45 days, (and in some cases they take more time) to approve the AFDC application. Most persons who apply for AFDC do so because of the absence of the father. The typical situation is where the husband rather suddenly for any of various reasons leaves\/deserts the family. Mother and children are left without any income. Mother tries to find a job with no success. Next mother borrows money from friends and relatives. She also tries to find another male provider for her children. If all of these efforts are unsuccessful, as the last resort she applies for AFDC. By this time she and her family are in dire need of assistance. Under this provision she will be told that she now has to join and participate in the WORC program. On the 45th day or soon thereafter she may receive her first AFDC check and be able to buy food for her little ones for the first time in a month or more. Prior to that they were surviving through handouts, church food baskets, and soup kitchens. All the time the mother is performing her mandatory WORC requirements she is worrying about where her children’s next meal is going to come from, how she is going to pay the rent and utilities? In many cases before the 45 days is up, the mother may be found not to be participating in good faith, because she had other things on her mind. And off course the WORC program requires that one think only about the WORC program. Thus it is possible that this mother can be sanctioned for failure to participate in the WORC program even before she receives an AFDC check. RECOMMENDATION Only recipients should be required to participate in the program. Moreover, if the recipient is having problems meeting the needs of his or her children, then \”good cause\” should be to make and the family should not be sanctioned. -16- Supportive Services- 416(d) OPPOSE SUMMARY OP THE PROVISION This section provides that participants will be provided \”… with such child care and transportation, and such other assistance not inconsistent with the law, as may be necessary or appropriate to achieve the objectives stated in subsection (a)(2)\”. ANALYSIS OP THE PROVISION AND RECIPIENT IMPACT STATEMENT This section not only fails to mandate that participants receive supportive services, but it also fails to provide for a way for the participant to declare his or her need for such services. In San Diego County, a workfare participant came home from her workfare assignment to find that her children had been taken away by the welfare department child protective service workers, because she had left them home without somebody to watch them while she was doing her workfare duty to work off her welfare check. Most recipient do not receive the supportive services they need. Even when they ask for such services, the state welfare agency will deny the request for such services. One women was raped when she was hitchhiking to her workfare site .. It is very important that recipients be provided with a form wherein they can state exactly what supportive services they need and want. The statement of the recipient should be accepted, unless the state agency has substantial evidence to show that the request for such services are not needed and with the appeal rights under section 402(a)(4). RECOMMENDATION The law this section should be changed to require that the county mail out a notice to each participant seeking information as to what type of supportive services he or she needs and wants. The statement of the recipient should be accepted, unless the state agency has substantial evidence to show that the request for such services are not needed and with the appeal rights under section 402(a)(4). -17- Federal Financial Participation- 416(e) NO POSITION This section provides that prior to the fiscal year of 1987, the federal government would provide 70% of the program costs and it would be an open-ended appropriation. For fiscal year 1987 and thereafter, the federal financial participation will increase to 7596. for those states who meet their performance standards. ANALYSIS OP THE PROVISION AND RECIPIENT IMPACT STATEMENT The California workfare program has just begun. Counties are already asking for astrono- mical amounts of funds. From the recipients point of view, it does not matter how much funds state agencies receive for the administration of the program, as long as an adequate amount is set aside for child care, transportation and other supportive services. Generally states will use most of the funds for administration and very little funds are used for supportive services. Moreover, states and local welfare agencies have mastered the art of directing their administrative expenses towards a program which has a higher federal financial participation to enhance the amount of federal dollars they can receive from the federal government. RECOMMENDATION Amend this section to require that a certain percentage of the funds as determined by the Secretary be used for supportive services. The determination of the standard amount should be developed be reviewing the experience in Massachusetts; OR amend to provide that supportive services will be subject 75% federal financial participation and all other costs will have the same federal sharing as in other public assistance programs. -18- Indefinite Extension of WIN Demonstration Program- 445 OPPOSE SUMMARY OF THE PROVISION This section would remove the deadline for submission of a WIN- DEMO program to HHS. Current law limits the WIN-DEMO program to a three (3) year period. This amendment would allow a WIN-DEMO program to go on forever. ANALYSIS OF THE PROVISION AND RECIPIENT IMPACT STATEMENT This program was authorized in 1981 and allowed state states several months to submit their plans to operate the program. Since then the deadline for submission of a plan has been extended twice. The last one was for June 3011984 .. In recent testimony the General Accounting Office testified that HHS has failed to keep adequate data to evaluate the various WIN-DEMO programs being operated by states through the country. . The WIN-DEMO program allows states to disregard various \”client protections\” embodied in current law. This has made the program more desirable for states that wish to operate a punitive program, which is what majority of these programs are. These programs save money primarily through the severe sanctions that they are allowed to impose upon \u00b7families whose principal wage earner allegedly failed to participate or cooperate. -19- ”

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” \u00b7, ANALYSIS OF S.B. 15 A STATEWIDE JOB SEARCH AND WORKFARE PROGRAM FOR .. AFDC RECIPIENTS. January,1985 COALITION OF CALIFORNIA WELFARE RIGHTS ORGANIZATIONS An Independent Grass Roots Organization 312 20th SL, Sacramento, CA 95814 (916) 442-2901 EXECUTIVE SUMMARY SB 15 is a bill to extent the authorization of the Employment Preparation Program, which is currently a demonstration program being tested in six counties and to authorize the operation of a workfare program at the county level at the option of the county welfare departments. The workfare portion of this bill has received major opposition during the past years. The employment preperation program (EPP) has also received some resistanc e from persons concerned with the plight of the poor because it has resulted in two (2) parent families being terminated from public assistance for a period _ of three months and six month for a subsequent termination. The opponents of the EPP and workfare program have been primarly concerned about the following problems: 0 In some cases EPP and workfare participants quate child care services, thus they have been dren at home by themselves, which has added to kids\” in California; are not provided with ade- forced to leave their chil- the number of \”latchkey \u00b0 Children are punished because their parents allegedly have failed to cooperate with the program, which results in total destitution of the family for three or six months for two parent families and grant r e duc- tion for three or six months for single parent families; 0 Persons not in need of the EPP or workfar e services are forced into the program in a paternalistic .manner~ Most of the opponents will have no problem with the program if it were voluntary and there were no sanctions punishing the children for their parents alleged be- havior, b411.-1i: the AFDC program was established to support needy children and it is not a rehabilitation program for the parents or a behavior modification program through punishment and rewards for the parents. ,,. The proponents allege that lack of sanctions would diminish participation in the program, but this has never been tested and the opponents believe that if the pro- gram has merit, then people will participate. The proponents would rather use the stick to obtain participation, the opponents advocate \”sugar\”. Most legislative initiatives have embraced !’incentivesf’ as a method obtaining cooperation from persons and corporations. For example, welfare officials have always advocated that the federal government provide them with increased fun- ding to lower their error rates. State law recently passed provides for amnesty to those who have not paid taxes and come forwarde Corporations are provided with hug e tax write-offs for operating programs that would benefit society . Although proponents allege that the EPP program has resulted in many people going to work, which is \u00b7 a definite. plus 7 it does not outweigh the total des- titution that many children will suffer if this program is enacted, which is the bottom line . \u00b7 -1- SECTION-BY-SECTION ANALYSIS OF SENATE .BILL #15-Garamendi SECTION 1 This section makes some technical changes in Section 5302, which is the section that outlines the conciliation period to persons prior to being sanc- tioned by the WIN program. SECTION 2 This section provides that after WIN registrants have completed the job search workshop and their 4.:weeks or more job search -, they may be referred to education, training or employment services, \”to the extent feasable\” and to the extent that these services are available. It appears, however, that most of the WIN funds would be used up for job search work shops and supervised job search. SECTION 3 This section is designed to include EPP into the JTPA local planning process to achieve coordination between the two programs. SECTION 4 Makes technical changes in current lawo SECTION 5 Makes technical changes in current law. SECTION 6 Authorizes the State Department of Social Services to administer federal and state funds appropriated for the support of the demonstration and special assistance programs for which it has administrative respon- sibility. This authorizes DSS\u00b7to operate a state-wide workfare program in California, because most workfare programs operated in the United State are demonstration programs. SECTION 7 This section mandates DSS to operate a grant diversion program in California. Current law leaves it to the department’s discretion. This law makes it mandatory, provided DSS could obtain waivers. The depart- ment has been resistant to operating this program. SECTION 8 This section makes the EPP program permenant in state law. This is the main section of the bill , thus we would analyze it subsection by subsection. The section starts off with a statement that the public lacks confidence in the program and this program would gain public confidence in public assis- tance program. This hypothesis has not been verified to date. In fact, this hypothesis can be verified through a polling of San Diego County residents to see if the San Diego Workfare program has changed or enhanced public confidence in public assistance programs. -2- It also provides that the administration of the program would be done by EDD, DSS, educational institutions, private industry councils, etc. It also provides that the EPP program shall consist of two major components: (1) an Employment Search Program, and (2) Job Experience Training Program, which is the workfare program for all practical purposeso EDD will operate the Employment Search Program (ESP) and EDD would supervise the county wel- fare departments. Subsection (a) Provides that all mandatory registrants shall be required to participate in this program. Subsection (b) This section provides that some mandatory registrants may not be able to participate because they have language problems or cultural barriers and other problems. \”As appropriate, counties shall refer these individuals to\” other services. This will only be done at the sole and exclusive discretion of the county welfare departments. Currently there are many loatian refugees in Contra Costa County who are being sanctioned because they have language and cultural barriers, and by existing law they should not be sanctioned. Moreover, this statute leaves it to the subjective determination of the county welfare departments to decide who has a language barrier or a cul- tural barrier, and we do not anticipate the counties finding any person having a language or cultural barrier. Subsection (c) This section provides that if any mandatory registrant fails to comply with the various requirements of this program, they will be severely,punished by having the aid reduced for one parent family and total destitution for two parent families for a period of 3 months for the first offense and 6 months for the second offense. It also provides that the EPP program \”shall include at least the following components\” which means the county or EDD could have more components at their discretion and can develop a more punitive program if they so desire. The mi- nimim requirements are: 1. Referring mandatory registrants to EDD; 2. Orientation to the program which may be done on a group basis; 3. Placement of persons qualified for available job 7 which never happens, but sure sounds nice; 4. Job assistance workshops, which will teach the registrants basic job seeking skills, understanding employers’ requirements and expectations of employees, and improvement of participants’ self-image and awareness. This program is mandatory for those people who could teach another person how to look for a job and if they have a bad image of themselves, it was created by the barbaric county welfare treatment they were subjected to when they applied for assistance~ and throughout their experience with the welfare department. -3- Subsection (e) Supervised job search, and were possible, access to phone to conduct job search. Most of these people are not provided with transportational as- s.istance in advance, thus they are forced to use their limited AFDC funds which is ~uppo;ed , to be used for food for their children to participate in this program, otherwise they will have nothing for three months or six months. Thus some people starve their children for several weeks to make sure that they do not starve their children for several months. Subsection (f) An accessment after \”not more than four consecutive weeks of job search\”, which means that the state could have a year around job search, if they so desire , to determine what other needs they have to became employable. Subsection (g) Coordinating this program with JTPA. SECTION 9- This section provides that AFDC mandatory registrants will register at the county welfare department. SECTION 10 Provides that EPP shall be implemented statewide within five (5) years and mandates that during the fiscal year o-f 1986-1987 the state shall fully implement this program in six current demo counties and an undetermined number of other counties. SECTION l! This section makes several technical changes. SECTION 12 This section tries to get maximum amount of federal funds to operate this program, including an attempt in trying to get Emergency Assistance funds to operate this program. There is no attempt to obtain federal emergency assistance funds for homeless and foodless families in California. In fact the federal Emergency Assistance Program, which was actually designed to help families in emergency situations has became a mecca for states trying to obtain additional federal funding for state sponsored initiatives, which is a classic manipulation of the system by state welfare departments. SECTION\u00b7 13 This section repeals a current statute requiring the Director of DSS to secure waivers to implement the EPP program in California. SECTION 14 This section provides that persons who want to volunteer for the program, may do so. It also states again, just in case someone must it in Section 8, subsection (c), that failure to participate in this pro- gram could have severe consequences, like a family with two (2) parents could became totally destitute for 3 or 6 months, and one-parent families could have their already meager grant reduced for three to six months. They are entitled to conciliatory resolution of the problem as provided in Section 5302 of the Unemployment Insuarance Code, which was effective July 1,1984, but after six (6) months is yet to be implemented by the department. -4- SECTION 15 This section provides that if the county has the resources, then they shall review those cases where the EPP program was not made available to certain families and try to get them to mandatorily participate in the program. SECTION 16 This section takes a crack at trying to say that th e author is con- cerned about families who have no resources to participate in the program. The language is written very loosely and it would ~not -resolve the :problem of having families participating in the program and using their family’s food budget funds to meet the expenses of this program. There needs to be langauge that would mandate the county to obtain verification from the family that they have the funds to meet their trai- ning and job search related expenses, rather than assuming that if there is a problem, the registrant would tell the county. It is interesting to note, that when the welfare officials are concerned about some information from applicants or recipients, they have a hundred and one ways of making sure that they discover that information. But when the county needs to discover information that would protect the health and welfare of the family and would help the children, they all of a sudden run out of ways to find out information beneficial to the family~ SECTION 17 This section provides that after the registrant has completed their Job Search program, and has not been sanctioned, then the department shall develop an employability program, which may include, among many other programs, the \”workfare program\” now called\” Job Experience Training Program\”.It appears that the bill has learned a lesson from Ronald Reagan. Reagan is not raising taxes, it is \”revenue enhancement\” or \”tax reform\”.-This bill does the same thing. SECTION 18 This section repeals existing language which required a report in 1982 on the performance of the EPP program. SECTION 19 This section requires that DSS. in consultation with EDD submits yearly reports about the success of this program(EPP). SECTION 20 This section requires that the Governor’ s budget report each year how much was saved because of the EPP program and shall recommend that a portion or all of the savings be put back into this program. SECTION 21 AND 22 Technical changes. SECTION 23 This section outlines the \”Job Experience Training Program\”, which is -5- actually the Garamendi workfare program. The program basically has all of the same features that the Deukmejian workfare program had. In some places it has more words than the Deukmejian legislation had, but the recipient impact will be the same. It will be operated by the county welfare departments. SECTION 24 This section allows San Diego to continue to operate their workfare program. SECTION 25 This section states that although this act is effective innnediately, it shall not effect any applicant or recipient of AFDC until July 1,1986. SECTION 26 This section provides that DSS may fund 100% of the cost of operating the workfare program by the counties. The legislation assumes that the counties will not implement this program if they have to put up the money. It appears that the counties would only support and operate this program, if it doesn’t cost them anything. As always, something for nothing is always attractive to the counties. It also appropriates an unspecified amount of funds for DSS and EDD to operate this program. SECTION 27 This section provides that any section in the bill, which is contrary to federal law shall not effect the remainder of the sections of the bill. It also allows DSS and EDD to promulgate emergency regulations to implement a program which becames effective July 1,1986. We wonder why does the author find it necessary to abrogate the regular regulatory process to implement a bill which is effective year and a half from now? SECTION 28 This section concludes that the bill would save money and would cost money, thus in the final analysis it won’t cost any money. The opponents of the bill believe that –this bill would cost more than it would ever save. If the author believes that this bill would save enough to operate the program, then he should amend this sectiort to provide that there would only be an appropriation for the first year and every year thereafter the program shall operate on the funds saved by the program. SECTION 29 This section provides that the bill becames effective immediately because it is necessary for the immediate preservation of the public peace, health, or safety within the meaning of the Constitution. It also provides that in order to save money and provide poor people with skills os job seeking and to gain work skills as soon as possible, the bill should became effective immediately upon enactment. This seems to conflict with section 27 of the bill. -6- CONCLUSION S.B. 15’s enactment would be detrimental to the health and welfare of needy children of the State of California. Although some parents may find full-time employment, ( and it should be noted that many find full-time employment without any assistance from these govern- ment funded programs, for the average stay on AFDC is two (2) years) there will be many children who will suffer total destitution(and many will suffer partial destitution~ to ensure that some of the families obtain employment. C.C.W.R.O. has no problem with helping poor families obtaini .ng employment, however we can never support the achievement of this goal at a cost of ha- ving other families become totally destitute or partially destitute- resulting in more foodless and homeless children in California. ”

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” COALITION OF CALIFORNIA WELFARE RIG\u00b7HTS ORGANIZATIONS TESTIMONY ON CALIFORNIA STATE COMMUNITY SERVICES BLOCK GRANT PLAN OF 19\u00b735 August 7,1984 Prepared by Kevin M\ufffd Aslanian,Coordinator An Independent Grass Roots Organization 312 20th St.. Sacramento, CA 95814 (916) 442-_290I EXECUTIVE SUMMARY We have carefully examined the 1985 Community Services Bloc\ufffd Grant proposed state plan. Our review was targeted towards the maximum benefits that this plan will provide to the low-income community of the State of . California and its compliance with the provisions of California state law. we paid special attention to the minimum mandatory services req\ufffdiremP\ufffdt in \ufffd\ufffde law and its reflection in the plan. we also analyzed the availability of resources and SOEO’s dup\u00ad lication of services given their limited resources. our review. resulted in the following findings: 1. That minimum mandatory services are not being properly provided in the community and neither does SOEO propose to enforce the provisions ,of the California state law mandating minimum mandatory services; 2. That the proposed plan does not reflect the testi\u00ad mony of the poor received during the local plan hea\u00ad rings and the responses to such testimony as required by state law; 3. That most of the SOEO CSBG \u00b7funds are being u\ufffded for direct services which duplicate existing services and are not used.to carry the p,rimary mission of the com\u00ad munity action programs, which are set forth in the \”Statement,of Mission\”on page 7 of the plan, but not reflected in the type of activities which is attached to the proposed plan. 4. Lack of the participation of the poor in the for\u00ad mulation of the programs to be funded with the 5% discretinary funds and the lack of the participation of the poor in the formulation of the priorities by SOEO. 5. Lack.of participation of the poor in public hearings and SOEO’s failure to ensure the participation of the poor in the pearing on the local plan. The primary point we would like to make is the fact that fiscal accountability and programatic accountability are treated dif\u00ad ferntly, which we disagree with. We believe that both should be treated equally.We wonder what one would think if .SOEO said that they would require each CAP to provide=- assurances that the funds they receive are being spend by the age_ncy-a statement of assurance as the C.AP are required to do minimum mandatory services. MINIMUM MANDATORY SERVICES Section 1274S(g) of the Government Code provides that community action agencies (CAA) shall provide minimum mandatory services, if there is no one else in the connnunity providing these services. There is nothing in this law that states it is assumed that there are other organizations providing these services. In fact there should be a presumption that these services are not being provided by other organizations, which is the reason that the Legislature mandated that these services be provided in all counties and service areas by the CAAs, if no other organization provides these services. There are very few countieR which these services are provided as required by law. Most counties, which have many poor people, such as Los Angeles County, San Diego County, Santa Clara County, Alameda County, Orange County and the ether major counties do noc have any entity who provides these services,and, off course the CAA does not provide these services, rather they have filed false statements alleging that these services are being provided. It also seems that although SOEO states that: \”SOEO is committed to the provisions of Government Code Section 12745(g) prescribing the minimum service requi\u00ad rements.\”, in reality they are indifferent to these services\ufffd This is evidenced by the following facts: 1. On page 61 of the proposed plan, each CAA must provide how much of the CSBG is spend on the various portions of the total program. Off course minimum mandatory services is not even mentioned, because it is not part of the total program, it appears; 2. When you consider the types of services are mandated in accor\u00ad dance with Section 1274.S(g), which are at least completing forms, explaining program requirements and client responsibility, transpor\u00ad tation and doing all things nec\ufffdssary to make the program accessable to the poor, we only find two of these provisions in the aggregation form attached to the state plan. The remaining requirements are not mentioned at all, or are not speicifically providP-d for. The plan alleges that on February 24,1984 SOEO mailed out a letter requesting that the CAAs provide information regarding they compliance with the minimum mandatory s\ufffdrv:i.ces. That letter states in part: \” Be mindful of the fact that it is not essential that your CAA directly provide these basic survival services, but that you provide assurances to this office that these services are being provided\ufffd\” It is clear that SOEO was very concerned that someone illay read this letter to mean that these services have to be provided. To make sure that no per\u00ad son is left with this misimpres\ufffdion, they close the letter by stating that all the CAA has to do is to say that these services are being provided\ufffd This is like having SOEO stating that you have to have books, but you don’t need to have them audited or _show SOEO where you spend the money, just provide us with assurance\ufffd and not even under the penalty of perjury- that you have spertd thi-s money\u00b7 for the purposes of CSBG. AGGREGATION OF THE PLAN AND HOW IT SHOWS WHAT IS BEING DONE ON MINIMUM MANDATORY SERVICES. As we stated above, there is no mention of any funds beiPg spend for minimum man\u00ad datory services, although the CAAs have told us a number of times that they do these services all the time. We felt that the aggregation form would more appropriately show all of the CAAs that provide the minimum mandatory services. Of the 47 agencies who submitted a plan, only 13 allege that they do some kind of service related to forms and aplications and advocacy\/legal services. There is no evidence that any of these services relates to minimum mandatory services, but even if they.did, it represents 27% of the CAAs. It is alleged that $144, 860 is spend for legal services\/advocacy and $1, 500 is spend for forms and appli\u00ad cations. The $144, 860 does not necessarily represent SCBG funds, rather it rep\u00ad resents all of the funds that the CAAs have for their services. It is a known fact that most of the funds the CAA.s have come from other sources, such as United Way, Revenue Sharing, and other sources. Moreover, $144, 860 only rep\u00ad resents 0.9% of all of the CSBG dollars allocated to the CAAs as provided on page 71 of the proposed plan. The amount of funds that the CAAs will spend to assist the poor with appli\u00ad cation\/ forms, which does not necessarily mean minimum mandatory services, rather it could be completing.forms for services not related to basic sur\u00ad vival services, amount to $1,500 a year, which represents a portion of the $15, 855.555 that cannot be figured out with the adding machine. The aggregation plan also shows that during 1985, the CAAs will only serve 9610 persons with advocacy\/legal services, which represents 0.0005% of the total number of persons that will be served by SOEO. The form also shows that during 1985, the CAAs will assist 925 persons with forms and applications. We will not try to figure the percentage that this represents. \”SOEO .6e.eJu to admbi,l6teJc. the. Ca.li.601tn-ia. CSBG p1tog1ta.m with the maumum deg1tee on ac.c.oun.ta.b.lU.t.y\” 1 9 8 5 State CSBG P la.n, 1 n.tlto ducilo n. These are fine words, but it should have been amended to provide that the mini\u00ad mum mandatory services are not subject to this standard. Maximum degree of accountability cannot mean a mere assurance, which is not even under the penal\u00ad t,Y of perjury, to meet such a-standard. We believe that this plan should be amended to require that all CAAs provide VER IF I C AT I O \u00b7N, supported by testimony from the poor, that in each of their communities, there is indeed minimum mandatory services, and SOEO should verify\u00b7 that these services are being provided to the satisfaction of the poor each quarter, a copy of which should be provided to this committee for their review. TESTIMONY OF THE POOR DURING LOCAL PLAN PUBLIC HEARINGS -USOEO -0eek..6 to admirr.i.J.>tvr. the Cali601tn.-i.a CSBG p1togJta.m W-i.,th the maumu.m de.g1te.e. on ac.c.ounta.bilily, . \” –Se.e:Uon. 12741 06 the. Gove1tn.me.nt Code. p1tovidu th.at the plan -0hall. ide.YIA:,,i6y the c.an.evr.n-0 on the. pooJt dwu.n.g thue pu.bUe he.aJvin.g-0 and the. ac.Uo\ufffd :ta.ken. the1teon. f j o1t the. 1teview on thi6 c.ommU;te.e. Notwithstanding the law & SOEO’s desire to have maximum accountability, there is nothing in the proposed plan that \u00b7reflects the testimony of the poor, what their concerns were and the actions taken\u00b7upon those concerns by the local plan. Moreover, this Committee has also not been provided with this infor\u00ad mation to do their statutory duty. We have not been able to review local plans as they have not been available to the poor to review. It is true that copies of the local plans are loca\u00ad \ufffded in the SOEO offices, but that does not make them acc:essable to the poor. We would recommend that SOEO be required to provide this Committee with a statement containing each and every comments presented by the poor and an analysis whether those comments were accepted or rejected. SERVICES PROVIDED BY CAAs DUPLICATE CURRENT SERVICES PROVIDED BY MANY AGENCIES ”The m\ufffd.6-lon l6 OEO ‘.6 mandate. n Oil. a..6.6l6ilng a.1.l Ca1…i.6M.ni.a.n.6 .6 eek.b1.g a. 1.AXLIJ 0 6 Un e with qu.o.LU.y ba..6 ed. 0 n .6 elf-.6u.6 o..i.clenc.y a.nd O YL Jte.duc.tion. 0 6 de.penden.c.y. \” It is important to emphasis that the phras.e \u00b7all Californians\u00b7\u00b7 which is different from some Californians. CAAs have traditionally been charged with the responsibility to act as a catalyst between the community and government to ensure that the various programs operated by government (in private sector also) meet the needs of the poor and the poor have a voice in the formulation and implementation of these programs. The plan before the Committee today has completely divorced itself from these missions and the instant plan is a presentation of how much direct services they have provided, rather than a presentation of how much direct services they have Jtimulated. The CAAs are suppose to make a difference in the battle against poverty that is significant in their community. Providing direct services to less than 5% of the poor in the State of California makes no difference and it clearly fails its mission-\”assisting all Californians\”. For example, community action agencies have targeted $2. 8 million for programs and activities to assist low-income persons to secure and retain meaningful\u00ad employment. The \ufffdtate of California budget for 1984-1985 reveals that California will spend $1.4 billion for employment and training programs. The CAAs $2. 8 million dollar expenditure represents 0.02% of the total dollars that will be spend on training and employment programs in California. The $1.4 billion will be spend for direct services and so will the CAA $2. 8 million. Any reasonable person would conclude that this is duplication at its highest. Moreover, the $2.8 million cannot serve all Californians. The same is true for most of the other programs, such as education, use of available income, housing, energy assistance, starvation and malnutrition,etc. WE RECOMMEND that SOEO should analyze all of the-program for duplication \u00b7and fund programs that are not duplicative and reach all of Californians. LACK OF THE PARTICIPATION OF THE POOR IN THE 5% DISCRETIONARY FUNDING AND ITS DUPLICATION OF EXISTING PROGRAMS SOEO submits that they are committed to \” Ma.x,imu.m ne.a.,6.-i.bl.e pMtic.ipa..ti.on on the poo1t b1. the devel.opment and hnplemen;ta.,Uon. 06 all yYtogJz.a.m6 a.n.d p!l.O\u00ad jec.u duigned to .oeJtve the pooJt.\” The poor of California had zero participation in the development and implemen\u00ad tation of the expenditures of discretionary funds for 1984 and have yet to hear about how the 1985 funds will be spend. SOEO may justify this by saying that it is not feasable to have the poor participate in the development and implementation of the discretionary funds. We wonder will it ever be feasable for the poor to participate in the development and implementatiori of any aspect of the Community Services Block Grant Program? We have reviewed the list of activities that was funded for FY 1983-1984. Most of the contracts were for employment and training related services. Again, this is clear duplication of the $1.4 billion that is already being spend in California for employment and training for low-income persons. We realize that it is politically safe to spend money on employment and training, but we would suggest that the $1.4 million could have better been utilized to assist the poor in their efforts to participate in the development and implementation of the programs fond’:’d wi.th $1. 4 billion, rather than spending another $1.4 million to duplicate existing efforts. LACK OF PARTICIPATION OF THE POOR IN THE HEARINGS ON THE LOCAL AND STATE PLANS. Inasmuch SOEO alleges that it is their desire to to have maximum participation of the poor in the development and implementation of the local and state CSBG plans, there is no meaningful effort to obtain the participation of the poor. We are not present today because SOEO notified us of these hearings. We are present because we discovered the scheduling of these hearings through our elected representatives. CAAs have not involved the low-income connnunity meaningfully in the develop\u00ad ment and implementation of their local plans. Many of these hearings were publicized in the legal sections of the local newspapers. They have satisfied the legal requirements or publicizing the hearings. But have they satisfied the moral requirement or g:etting the low-income population involved? N O. Part of the lack of low-income involvement is the fault of SOEO. There are no objective guidelines for the conduct and publicizing of these hearings. All SOEO requires is that the CAA \”assure\” that the low-income poor were involved. There is no accountability for all practical purposes. In addition, SOEO has decided that employment adn training should be a state\u00ad wide priority. We are not going to repeat that this is duplicative as long as it means prov_iding direct services. However, notwithstnading the duplication problem, there was also no participation of the poor in deciding the SOEO priority. ”

” OnThe Of The \\SA DIEGO CO NTY WO KFARE PROGRAM , \u00b7 . .,,.,. 1984 COALITION OF CALIFORNIA WELFARE RIGHTS ORGANIZATIONS COALITION OF CALIFORNIA WELFARE CCWRO RIGHTS ORGANIZATIONS, INC. BC,, . ~D MEMBERS MERKEL HARRIS, PRESIDENT SANOIEGO KEVIN ASLANIAN SACRAMENTO CYNTHIA ANDERSON LOSANGELES NANCY BERLIN L0SANG\u00a3LES BONNIE CANO STOCKTON HILDA GRANADO JAN JOSE CATHERINE-ELIAS JERMANY SAN FRANCISCO HELEN LITTLE SAN FRANCISCO ANN MCGREGOR KEENE DAN OWENS SACRAMENTO ROBERT TEETS. JR. SAN FRANCISCO For\”W\”ard This report was prepared by the San Diego County Welfare Rights Organization and the Coalition of California Welfare Rights Or~anizations. The San Diego County Legal Aid Society also provided a great amount of technical and legal assistance in the preparation of this report. We would also like to extent our greatest appreciation to Cresencia Garza who made this report possible by typing and editing the report. Ja.n.u.a.ry 10,1984 1900 ‘\”K’\” STREET SUITE 203 SACRAMENTO, CA 95814 \u00b7 \u00ab916> 442\u00b72901 80Q..445.7575 A COAU110N OF INDEPENDENT GRMS R001S ORGANIZATIONS T A B L E 0 F C O N T E N T S Executive Summary ………… , ………………………… 1 Introduction e a e e e e e e \” C . .. . . . . . . . . . . . . . . . . . . . . . . .. 3 Case # 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Case #2 . . . . . … .. . . ., ~ ,. 11 .. 7 Case #3……………………………………….. 8 Case #4 ……………… ………………….. ………. . 10 Case #5 . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Conclusion………………………………………….. 13 Statistical Analysis of the San Diego Work Program……… \u00b7\u00b7\u00b7\u00b7\u00b7\u00b7\u00b7\u00b7\u00b7\u00b7\u00b7\u00b7\u00b7\u00b7\u00b7\u00b7\u00b7\u00b7\u00b7\u00b7~\u00b7\u00b7\u00b7\u00b7\u00b7\u00b7\u00b7 15 \u00b7-1– EXECUTIVE SUMMARY This report outlines some of the problems that AFDC recipients face while participating in San Diego County’s Employment Preparation\/Experimental Work Experience Program (EPP\/EWEP)o, whieh is due to e:xph::e Jutle 30, \u00b7na4.-~ As the program progresses, San Diego County has become the mecca of structured visits for visitors from throughout the country and the state. The visits are controlled by County personnel. Visitors are taken to the sites chosen by the County and are presented a one-sided picture. All stories, however, have two sides. This report presents the other aide — not cold statistics and planned demonstrations — but actual case histories of victims of the San Diego Workfare Program. The San Diego Program carelessly applies harsh sanctions to entire families when the head of the household (allegedly) fails to cooperate. Sanctione are applied without allowing people their right to the 30-day conciliation period, which was designed to protect those persons who want to cooperate from such sanctions. San Diego County has admitted that, notwithstanding the fact that the law requires all persons be provided with the opportunity to a conciliation period, they have chosen to ignore this requirement. Not one victim mentioned in this report was allowed the 30-day conciliation period as provided by law. Summary of the cases contained herein: An illiterate person was assigned to EPP\/EWEP. After \”\”‘- completing the job search portion, he proceede4 to work for+ the benefit portion of EWEP While working off his AFDC+ benefits, his father had a stroke A-nd he went to see his+ father. His wife told the Welfar~ department but when he,-r returned his entire family was meted out a three-month+ sanction while the head of the household went to his 111-+ father’s bedside. Another AFDC recipient was ordered to do a work assignment by the Court while he was doing his EPP\/EWEP assignment. He called his worker who approved of his request to obey the Court ordered work assignment. His entire family was then subjected to a three-month sanction for obeying a Court order . A woman applied for AFDC because her work hours were cut back. Yet, she continued to work for the hospital under an \”on-call\” basis. EPP\/EWEP prevented her from responding to the hospital call-ins and, therefore, she lost her part-time job with the ~ospital, which could have turned into a full-time job. Prior to completing her EPP\/EWEP assignment, she moved to Kern County and informed her worker of the move. When she returned to San Diego County, she was sanctioned for three months for failure to complete her EPP\/EWEP assignmentc -2~ Another AFDC recipient had already completed his EPP\/EWEP assignment but was asked to go through the program once more. San Diego County alleges that they require recipients to go through EPP\/EWEP only oncee This man’s entire family was sanctioned for three months because he accepted a training assignment to which the County Welfare Department specifically referred him. EPP\/EWEP participants are instructed during the 2- to 3-week job search phase of EPP\/EWEP by program personnel not to accept an offer of employment, if offered one at a job interview, until they have completed the three-week EPP assignment. Federal law, however, provides that they can be sanctioned for failure to accept employment. These cases only represent those situations in which we filed for a fair hearing. In many cases recipients ~re afraid to file for a fair hearing because their county workers retaliate against them for filing such hearings and try to cut them off aid for any phony reason they can find. One of the more common methods of harassment is to request verification over and over again regarding the same item. Some of the typical cases that have not been elavated to the fair hearing level are: A woman receives $526 per month in AFDC and her absent parent pays $200 per month to the District Attorney’s Office as child support for her two children. Rather than being required to work off the difference between $526 and $200 she is required to work off the entire $526, which means she has to work off her child support payments also. Had the law not required the child support to be paid to the D.A., then she would have recived her $200 child support payment and a $326 AFDC grant. But, because she has the unfortunate luck to have her child support be paid to the D.A.’s office, because the San Diego County District Attorney receives a bounty for making sure that the money goes to the D.A.’s office, which amou~ts to 12.5% of all child support collected the AFDC mother is rewarded by being required to work off her child support payments through the performance of an unvoluntary servitude act. Another common situation is when the AFDC family has some sort of income which is counted two months down the line. Thus, if the AFDC recipients had $200 net income in October, then their grant would be $200 less for December. However, San Diego County still requires the EWEP participant to work off the full AFDC grant during the month of December, eventhough the December grant was reduced by $200. Do these recipients get paid for the free mandatory labor that they provide to the County? No. It is free labor provided to the County over and above their AFDC grant. What happens to the County for forcing recipients to work off hours over and above their AFDC benefits? NOTHING. What happens if the recipient fails to work off their AFDC hours? They are terminated from AFDC for 90 days — a stiff sanction. IS THIS EQUITABLE??? -3- INTRODUCTION San Diego County has implemented workfare in the General Assistance Program, the Food Stamp Program, and now in the AFDC program. This report will deal with the AFDC workfare program in San Diego. The program got under way in August 1982, and is called the Employment Preparation Program (EPP)\/Experimental Work Experience Program (EWEP). Because of its experimental nature, it does not yet include all AFDC recipients. The County hails EPP\/EWEP as an \”innovative welfare program;; that features \”unprecedented cooperation between such agencies as the County Department of Social Services (DSS) and the State Employment Development Department (EDD) ….. EDD provides Job Development Counselors (JDCs) who work with the participant during the first three weeks of EPP\/EWEP (Job Search Stage). DSS monitors the next three months of EPP\/EWEP through its eligibility workers, which is the Work-for-Benefit Stage. At this stage, participants work 32 hours per week in various public and private non- profit agencies as a condition for their AFDC check. The remaining eight hours per week are reserved for supervised job search activities~ On March 23, 1982, the San Diego Welfare Rights Organization met with San Diego County workfare officials to discuss the County’s EPP\/EWEP Program that was getting into swing. WRO was assured that, unlike other workfare programs, EPP\/EWEP was not sanction oriented. Further, if a participant were sanctioned, she or he would have an EDD notice of deregistration fol- lowed by DSS notice of welfare termination. These two notices, plus the EDD WIN requirement that allows 30 days for exhaustion of conciliation efforts, assured that EPP\/EWEP sanctions would be minimal and participants’ rights to appeal preserved. WRO’s experience and the following case histories do not support this view. EPP\/EWEP routinely sanctions people like the case his- tories herein reveal and is a \”sanction oriented\” program. WRO submits the following case histories to suffice as their preliminary report on the EPP\/EWEP Program in San Diego County. Most of these cases have gone to a fair heraing and at all hearings San Diego County has been willing to vigorously defend the following abusive actions, which indicates that the County considers its policies correct. Consequently, the practices revealed herein are widespread. WRO is of the opinion that thes cases merely represent the tip of the iceberg and that the vast majority of work- fare abuses go unchallenged and never come to our attention. Considering these case histories, this is indeed a frightening prospect. WRO has attempted to obtain reports from county and state officials for this report, but has not received the requested information. Specifically, on March 28, 1983, WRO requested progress reports from the County, which could not be met because none \”had been prepared.\” Furthermore, WRO’s May 19, 1983, written request to the State Department of Social Services for the State’s quarterly reports on workfare was ignored. In spite of our lack of reports and statistical data, we think the following case histories speak for themselves. -4- Many of the families described herein have been sanctioned illegally by the County of San Diego in that they were not afforded the opportunity to rectify the problem through the 30-day reconciliation period provided by law. Today they are victims of the County’s illegal acts. The real victims, however, are the children of these families who are currently living with these harsh sanctions. We now take you through the case histories of the victims, most of which are children. CASE #1 \”Mr. A\” has a wife and three children aged 2, 3, and 5 yearso The County claims that Mr. A did not cooperate with the County’s EPP\/EWEP Program, therefore, the entire family is being punished. The County calls it \”sanc- tioned.\” The entire family cannot receive any AFDC benefLts, regardless of their need, for three full months. Mr. A is illiterate. He told the County that, while he could sign his name, he could neither read nor write. This condition did not prevent the County from selecting him for participation in the EPP\/EWEP Program and was told to sign an Agreement of Understanding, even though he could not read the docu- ment, if he wanted to receive AFDC benefits. While participating in the work-for-benefit phase of EPP\/EWEP, a family emergency occured one weekend. Mr. A’s father suffered a stroke requiring his immediate departure to Virginia with the assistance of his relatives. Mr. A told Mrs. A to call the County and convey this news first thing Monday morning, which she did. After two weeks, Mr. A returned to San Diego on a weekend when he was promptly arrested for outstanding traffic tickets. Unable to post bail, Mr. A was incarcerated for ten days. When he finally came home, there were two letters from EDD which he did not understand. He personally took the letters to EDD to determine the problem and what he should do to get back to work. Unbenownst to him, EDD was deregistering him and his time to request an EDD hearing \u00b7 for that action had almost run out. Rather than assist Mr. A, (an illiterate) in requesting a hearing, EDD sent him over to DSS. Of course, DSS sent him back to EDD where his opportunity to request a hearing had not terminated. In addition, as he was shuttled back and forth between the two agencies, DSS sent him a notice terminating his AFDC benefits. Since he couldn’t read this notice, he was unaware of his right to appeal. Also, since no one was assisting him or informing him that precious moments were ticking away, he missed the deadline to receive aid pending the DSS hearing. Thus, Mr. A, Mrs. A, and their three small children are currently receiving no aid. As Mr. A recalls, a sympathetic observer in one of the agencies could no longer bear to witness his futile efforts to understand what was happening, who he should talk to, and what he should do. This person pulled him aside and told him to see the San Diego Welfare Rights Organization for help. WRO assisted Mr. A to appeal both the EDD notice of deregistration and the DSS notice of termination. The EDD hearing has already taken place and the sole issue was whether he was timely in requesting his hearing. It was decided that he was not and, therefore, he was prevented from challenging the EDD deregistration. EDD’s fault in causing the untimely request appar- ently was not relevant. -6- Mr. A also had a DSS hearing where he presented his story. The County admitted that they were aware of his reading and writing problems, but they contended that he did sign an Agreement of Understanding and that, if he had only contacted them, they would have helped. Helped indeed! Mr. A’s family, with three small children, is now awaiting DSS’s decision. If the DSS hearing follows past practice, it will simply adopt the EDD decision, stating that DSS has no jurisdiction over the matter and his opportunity to challenge the action has run out in both hearings. -7- CASE #2 \”Mr. B\”, the father of four children, aged 8 1 10, 12 and 13 years, was in his second round with San Diego County’s EPP\/EWEP Program when he was sanctioned. He was selected in January 1983, and completed the entire program once. Then he was selected again for EPP\/EWEP participation in the Spring. San Diego County alleges that families will be required to participate in EPP\/EWEP only once. Apparently, this is not trueg While Mr. B was participating in his second work-for-benefit phase of EPP\/EWEP, he received a court sentence requiring that he complete a 5-6 day work assignment. Mr. B contacted his Job Development Counselor (JDC) and it was agreed that he be assigned to continue EPP\/EWEP on June 27, 1983. On June 27, 1983, Mr. B arrived on time at the Boy’s Club ready to finish the eight days he had left for his second EPP\/EWEP Program assignment. However, the worksite superintendent noted that neither he nor Mr. B had a worksite assignment sheet and, therefore, he would not al1ow him to work. He was instructed to contact his JDC counselor to determine why he never received his worksite assignment sheet. Over the next few weeksj Mr. B, who has no phone and has to use pay phones, tried to reach the JDC, but to no avail. Meanwhile, DSS sent a notice terminating the entire family from AFDC because of Mr. B’s alleged failure to cooperate with EPP\/EWEP. Precious time ticked away as he futilely contacted DSS and EDD about the termination and the worksite sheet, but he was never able to reach the right person and was always shuttled to the other agency. By the time he appealed, the DSS notice of termination, his right to aid pending the hearing had run out and Mrs. B arrived at the Welfare Rights Organization frantic as school was starting for the four children and no check was forthcoming. Finally, Mr. B received his worksite assignment sheet about six weeks after his attempt to report to work for EPP\/EWEP. It had been erroneously sent to this old address. Mr. B had, in a timely manner, notified the County of his new address. At the hearing the main issue was how long it takes the post office to reroute a letter from an old address to a new address. Perhaps Mr. B will prevail at the hearing. Perhaps he won’t. In any event, he won’t know for at least a couple of months and meanwhile the family has nothing. All this because of a court order that was duly reported to the County and the County’s failure to mai l the assignment sheet to the proper address. -a\u00b7- CASE #3 Ms. C\” represents a new class of EPP \/EWEP participant. Recently, the County of San Diego changed the method by which EPP\/EWEP participants are selected. Now, all mandatory registrants must participate in EPP\/EWEP. When Ms. C applied for AFDC on behalf of herself and three children, she was an employed person. She had been employed full-time as a dietary assistant at the University hospital for two years, but her hours had been cut back recently necessitating her application for AFDC. She liked her work and anticipated that her hours would increase so that her dependence on welfare would be short lived. She felt that she had developed important patient skills which is why they continued to call her. But the EPP\/EWEP Program had different plans. This \”job\” development program took an employed person whose outlook and dependence on welfare looked exceedingly temporary, and transformed her into an unemployed person whose outlook and dependence on welfare has increased considerably. Consider the rules. Ms. C was not exempt from registering with WIN because her part-time employment was less than 30 hours per week. Because she was a mandatory registrant, she became a mandatory EPP\/EWEP participant. It is important to understand that the hospital employed her on a call-in basis to work different shifts. They would call at 8 a.m. or at 12 noon and require her presence during day or night hours. It is also important to understand that Ms. C was unaware that she was part of a special experimental program allegedly designed to get her employed. She thought all welfare recipients were required to meet EPP\/EWEP requirements. Therefore, she tried desperately to meet the demands of her part-time job and EPP\/EWEP. The County cannot claim ignorance as to her employed status. This fact was clear when her eligibility was determined and her monthly grant was calculated by anticipating that she will receive income during the month of application and the month following the month of application. Being warned that EPP\/EWEP was mandatory and failure to meet the require- ments would result in the termination of her benefits, Ms. C heroically managed to complete the \”job search\” portion of EPP\/EWEP (the first three weeks). During this time, she took the shifts at the hospital that would not conflict with EPP\/EWEP (usually night). Then she dutifully went to the daytime EPP\/EWEP sessions where she was taught how to find a job by looking in the yellow pages and making phone calls. Meanwhile, she had to turn down three eight-hour shifts at the hosptial because EPP\/EWEP required her pre- sence so they could teach her how to secure a job. She was sent out on interviews, but was instructed by her JDC to turn down employment if offered. She was not to accept empioyment until the three-week job seach training phase was completed. At the end of three weeks, EPP\/EWEP presented her with a certificate of completion of their \”training program\” and her hospital employer presented her with a termination notice because she was not able to respond to their call-ins as they conflicted with her EPP\/EWEP hours. At this point, she duly notifed the County Welfare Department and moved her family to Bakersfield. Now she has returned to San Diego\u00bb is accused of failing to cooperate with EPP\/EWEP and is facing a three-month sanction. She is required to start a three-month EPP\/EWEP cycle all over again. -10- CASE \/14 \”Mr. S\” has a wife and is the father of four children. This family received a notice that they would all be sanctioned and receive no aid for three months because of Mr. S’s failure to cooperate with EPP\/EWEP. Mr.Shad almost completed the entire EPP\/EWEP cycle when he received a notice from DSS addressed to him, telling him to report for an interview where he would be evaluated for a job training program. The notice stated that failure to appear will cause the suspension of his AFDC benefits. Mr. S was in a quandry. By reporting as instructed, he would not be able to finish the last five days of this EPP\/EWEP Program. With two conflicting instructions, he contacted his JDC who stated that he would get back to him. The JDC never did get back to Mr. s. Therefore, Mr. S left EPP\/EWEP and went to the interview with an EDD employee where he was assigned to a new job training program. Re was, after all; following written instructions from the County and oral instructions from the interviewer. Actually, Mr. S welcomed the County’s new job training assignment because his EPP\/EWEP experience had been disappointing. After working two months in a particular position, the positon became available for employment. With hopes high, he applied for the position, but an outside person was selected and Mr. S was required to train the new person in the job. Understandably, Mr S was beginning to doubt if his EPP\/EWEP experience would lead to bona fide employment. So the County’s assignment to a new training program raised his spirits and hopes for employment. When Mr.Shad nearly completed his new training program, his wife was shocked to receive a phone call from DSS stating that Mr.Shad never completed his last five days in EPP\/EWEP and that the entire family could look forward to three months without aid. She was told that he should quit the training that he was now completing and return to the former place to complete his five days. Mr. S called and reasoned that he only had a few weeks of training left, that he felt the training was valuable, and could he complete the remaining five days with EPP\/EWEP after the completion of his current training? The answer was a firm NO! In fact, he recalls being told that if he didn’t like the arrangement, he could leave the state. Mr. S, thinking that surely reason will prevail, completed his training. After all, he was following written instructions and the oral instructions of the person who interviewed him and assigned him to his current training. Of course, the DSS notice terminating the entire family arrived and Mra S appealed. At the hearing, the issue was whether the mailed instructions telling him to go to the new training site was addressed to him specifically ..:.r1- or whether it was just a stuffer. The County contended that what he received was just a stuffer intended for non-EPP\/EWEP people and he should have ignored it. Mr. S contended that it was addressed specifically to him, but he did not have the letter to prove this. Finally, during the hearing, the critical letter was inadvertently discovered by the hearing officer in one of the County’s files. Yes, the letter had been addressed specifically to Mr. s. The point in this incident is that, if common sense and reason had pre- vailed, Mr. S would never have been sanctioned and the costly hearing could have been avoided. Mr. S was one of the lucky few that requested a hearing in time and received aid pending the hearing. The decision is pending. Perhaps he will prevail. The point is that, after conceding the fact that they sent him written instructions to report to an interview, and interviewing him, and assigning him to a new training program, the County seriously contended that somehow and for some reason, he should have knolal to ignore their written and oral instructions. This case exemplifies the total confusion between and amongst the County agencies running EPP\/EWEP. Yet, these agencies expect the participants to read their confusing messages with total clarity. They are even expected to identify and ferret out erroneous messages and ignore them. It’s not easy to be an EPP\/EWEP participant. -12- CASE 115 \”Mr. R\” has a wife and five children, ages 8, 7, 5, 4, and 3 .. The entire family is facing a three-month sanction action from the County because Mr. R allegedly failed to cooperate with the EPP\/EWEP program. Mr. R has two years of experience as a journeyman sheet metalist. Mr. R completed the job search phase of EPP\/EWEP where he watched films, went through the yellow pages, made telephone calls and even went to some interviews, but was instructed not to accept employment if offered at these interviews until his job search phase of EPP\/EWEP had been completed. After completing the job search phase of EPP\/EWEP, he moved on to the work- for-benefit phase of EPP\/EWEP and worked at a worksite as a \”gardener .. \” In reality, however, he tended latrines rather than flowers. While working at this site for three weeks, he was simultaneously setting up interviews for police work. As the demands of these interview sessions increased, he called his JDC who appeared to undertand his very tight schedule. After confirming with another WIN person, the JDC gave Mr. R three weeks off from EWEP to enable him to interview and test. He was told he need not report to EWEP until the 25th of the month. Before his three-week reprieve was up, Mr. R realized that his opportunity would not materialize. He called the DSS worker and stated his willingness to commence work earlier than anticipated. However, she told him not to return until the 25th. By the 22nd, Mr. R was getting anxious because he had not heard from the Welfare Department about where he should report on the 25th. He had been warned that if he \”blew it\” he would be sanctioned, but at least he had been assured that aid for his wife and five children would continue. Not wanting to cause any problems, he called two days early on the 22nd and inquired as to where he should report on the 25th. He was told not to bother because he and his entire family were being sanctioned and would receive no aid for three months. On the 24th, one day before the agreed date he was to return to EWEP, he received written notice that, commencing on the 31st, he and his entire family would be punished for three months because of his failure to cooperate with EPP\/EWEP. WRO assisted this family by appealing this action in time, therefore, they qualify for aid paid pending. However, this does not assure this family that aid will continue uninterrupted. WRO’s experience indicates that aid paid pending checks can be anywhere from one to six weeks late~ As the rent is now due~ and the check is late, Mr. R is understandably quite worried. -13\u00b7- CONCLUSION There are several problems that EPP\/EWEP presents to AFDC recipients and the victims, who are children. This is a very important fact to remember, because the AFDC program is designed to protect the health and welfare of the CHILD AND THE FAMILY. It is the view of CCWRO and the San Diego Welfare Rights Organization that, although the program may be helping some, it is also need1e~sly hurting too many. This is where we differ with the proponents of EPP\/EWEP. The proponents believe that t~ere is no problem with hurting helpless children for other’s benefit. We believe, however, .that the program should be structured to ensure that -no child and family should be hurt because of the EPP\/EWEP program. THE MANDATORY NATURE OF THE PROGRAM ENSURES THAT SOME WILL BE HURT If the proponents are sincere and confident as to the program’s benefits and if they are sure the participants are indeed happy, then there is no reason to make it mandatory. The nonmandatory nature of the program will assure that \”innocent families will not be hurt\” . We believe that most of the proponents don’t want to see a family,with needy children \u00b7 going foodless and homeless. Reports from persons visiting San Diego’s pre-planned tours of workfare state that participants are happy and wouldn’t have it any other way. We believe that San Diego County should be delighted to make the program voluntary as a demonstration that our perceptions are invalid. A voluntary program would also protect the health and welfare of the children in workfare families, in that children would not be punished because of actions or inactions of their parents. SAN DIEGO COUNTY SHOULD OBEY THE LAW As our case histories indicatej EWEP families are deregistered without the opportunity of a reconciliation period as required by Unemployment Insurance Code Sections 5302(b) and 5304. Moreover, San Diego County welfare officials have admitted that they have made a conscious decision to ignore the state law. Unfortunately, there are no sanctions against San Diego County for knowingly and willfully disobeying the law by sanctioning hundreds of families without the 30-day conciliation period. SAN DIEGO TOURS ARE NOT REPRESENTATIVE OF WHAT IS REALLY HAPPENING CCWRO has always been suspicious of controlled visits~ Los Angeles County was deluged with visits to see how monthly reporting and retrospective budgets operated there. As a result of these visits, Congress mandated this program on all states. Today a majority of the states are appealing to the federal government for exclusion from this requirement and have asked Congress to make monthly re~orting and retrospective budgeting optional. .. -14′;.. Moreover, as a condition of eligibility, recipients must exert all efforts to appear happy at EPP\/EWEP worksites and perhaps many of them are. But certainly not all!!! Here are some problems: Persons not needing assistance in how to find a job are put in the same group that does need assistance and are taught how to make phone calls; how to go through the yellow pages; and how to read the \”want ad\” section of the paper. It’s like putting a college graduate in a class with fifth graders. Many persons in EPP\/EWEP do not need work experience~ They need real non-welfare cycle jobs or retraining! EWEP does neither. EPP\/EWEP recipients are forced to spend their meager AFDC funds to meet the high cost of EPP\/EWEP participation. EWEP participants are assigned to an EWEP site to do one thing but end up doing something else. -~_; – STATISTICAL ANALYSIS OF THE\u00b7 SAN DIEGO WORKFARE PROJECT The San Diego work experiment is composed of two (2) primary com- ponents: (1) the Employment Preparation Program; and (2) the Work Experience Program9 The Employment Preparation Program is targeted towards helping AFDC applicants getting off of welfare while their application is being processed. The Employment Work Experience Program (EWEP) is targeted towards two-parent families, which has been expanded to single parent fami- lies during the summer of 1983. Table #1 examines the impact.that this program has had in San Diego program upon the number of applications that have been approved for the AFDC program compared to the rest of the state. Table #2 examines the San Diego County AFDC-U caseload with the statewide AFDC-U caseload . OUR FINDINGS SHOW THAT THERE HAS BEEN NO SIGNIFICANT DIFFERENCES BETWEEN THE STATE-WIDE CASELOAD MOVEMENT IN THESE CATEGORIES AND THE CASELOAD MOVEMENT IN SAN DIEGO COUNTY. . These findings support CCWRO’s position that wel6aAe Jt.eclplent.6 geneJLa.l.ly fJ .. nd thelA own job.6 wlthou.t \”goveJt.nment .inteJLvent.ion\” and these programs really do not effect the caseload in any mea- ningful way. – iv- TABLE# 1 EFFECTIVENESS OF THE EMPLOYMENT. PREPARATION PROGRAM IN SAN DIEGO COUNTY Applications Approved Month State-Wide San Diego County 7 \/82 22,922 2,002 8\/82 24,676 2,758 9\/82 25,556 2,753 10\/82 25,909 2,474 11\/82 24,259 2,469 12\/82 27,737 3,845 1\/83 25,269 2,711 2\/83 24,140 2,584 3\/83 28.596 3,675 4\/83 22,024 2,210 5\/83 22,594 2,591 6\/83 24,257 2,983 7 \/83 22,818 2,438 Month 7\/82 8\/82 9\/82 10\/82 11\/82 12\/82 li83 2\/83 3\/83 4\/83 5\/83 6\/83 7\/83 -17- TABLE# 2 EFFECTIVENESS OF THE SAN DIEGO COUNTY WORKFARE PROGRAM AFDC-UP Cases State-Wide San Diego County 78,597 6,194 79,749 6,374 79,301 6,457 78j384 6,386 79,142 6,362 82,227 6,605 85,452 6,784 86,743 6,664 89,703 6,983 90,296 6,921 89,703 6,737 85,983 6,537 84,026 6,408 ”