Statement of Maurice Emsellem, National Employment Law Project, New York, New York
Mr. Chairman and Members of the Subcommittee, thank you for this opportunity to submit written testimony for today's hearing focusing on state practices related to the work requirements of the Temporary Assistance to Needy Families (TANF) program. My name is Maurice Emsellem, and I am the Public Policy Director of the National Employment Law Project (NELP), a non-profit research and advocacy organization specializing in workforce development programs. NELP works in collaboration with state policy makers and advocates in support of initiatives designed to expand the employment opportunities of low-income families, especially those families who are now reaching the federal five-year time limit on TANF.
We are writing today in response to recent proposals advocated by Mr. Jason Turner, New York City's Commissioner of Social Services, and others, urging Congress to significantly expand the work requirements of the TANF law. Mr. Turner, who will be testifying before the Subcommittee today, has called for new mandates on the states to place a larger proportion of the welfare recipients in work, while specifically advocating for federal policies that would shift larger numbers of welfare recipients into unpaid work experience programs, or "workfare." In support of this agenda to create large-scale workfare programs around the country, Commissioner Turner, in his most recent writings, maintains that New York City's workfare program offers "guidance as to what might be expected as a result of a more extensive national program . . . ." (p. 13). (1)
In our testimony, we respond directly to several key representations made by Commissioner Turner in his paper entitled, "Work Experience Under Welfare Reform." Accordingly, we question the conclusion that New York City's workfare program should provide guidance for Congressional action designed to expand the work requirements of the TANF law. To the contrary, the New York City program illustrates the severe limitations and inequities of unpaid work experience when operated on a large scale, as proposed by Commissioner Turner. Once you have reviewed all the available information, we are confident that the Subcommittee will agree with the majority of the states that have opted not to implement workfare programs. The states have instead developed more promising initiatives, such as transitional wage-based employment programs, that are being replicated around the country and can be promoted as Congress reauthorizes the federal welfare law.
Commissioner Turner: According to Commissioner Turner, "There is no empirical evidence of displacement of public employees by work experience participants in work experience programs studied, but this can be an issue of concern." [Emphasis in original] (p. 20). While noting that "lawsuits alleging displacement of regular employees have been filed since 1997," the Commissioner also states that "none has resulted in a serious disruption of the program." (p. 21).
Response: In fact, there has been widespread displacement in New York City, documented in five separate lawsuits filed since 1998 by AFSCME District Council 37 (DC37), the City's largest public sector union. For example, in 1999, DC37 filed a lawsuit challenging displacement in the City's Parks Department, the agency with the largest concentration of workfare workers. The number of City Parks workers declined from 1,251 in December 1993 (the month before the present Administration took office) to 802 in November 1998, while the number of workfare workers increased from 836 in October 1994 to over 6,000 in September of 1998. (2) The evidence of displacement was also documented by a community-based organization that surveyed over 600 workfare workers and found that 86% were doing the same work as city employees at their worksites. (3)
Commissioner Turner: In support of his argument that workfare programs can be implemented on a large scale nationally with the support of the unions and without displacing other workers, Commissioner Turner characterizes the position of the New York City unions with regard to the program as follows: "The mayor and the unions came to an agreement, the substance of which has remained in effect ever since." (p. 21).
Response: This statement significantly misrepresents the position of the New York City unions with regard to the workfare program. In fact, due to the vast expansion of the workfare program since 1995 and the new displacement protections enacted as part of the 1997 state welfare law, (4) the public sector unions took the City to court to halt the displacement caused by the workfare program. In the litigation, the City claims that certain documents discussed with the union before the 1997 change in the state welfare law now bind the union to accept the current levels of workfare. According to court papers, however, the union unequivocally disputes the City's claim. (5) Furthermore, testifying before the City Council in April 1999, Lee Saunders, Administration of DC37, criticized the workfare program for creating a subclass of workers, failing to lead to permanent, full-time, unsubsidized employment, and causing the elimination of thousands of City jobs. (6) Thus, it is entirely inaccurate to imply that there is any mutual agreement between the City and the unions related to displacement and the workfare program.
Commissioner Turner: As another selling point for the program, Commissioner Turner advances the argument that workfare workers improve City services. Thus, he states: "There can be significant benefits to participating agencies which offset some of the costs and provide real improvements in the services delivered by government and non-profits." [Emphasis in original] (p. 17). Again, by way of example, the Commissioner refers to the New York City's Parks Department, stating, "Largely as a result of additional labor available beginning in 1995, which peaked at more than three thousand full-time worker equivalents, the acceptable cleanliness rating of the city's parks climbed to 95 percent." (p.17).
Response: While it's true that City services have improved as a result of the work performed by the more than 250,000 workfare participants who have participated in the program since 1995, the Commissioner fails to note that that these services were once provided by City workers. As described above, the union has filed a lawsuit challenging displacement in the Parks Department, where the number of regular workers has dropped dramatically since 1995. Thus, City services have improved at the expense of regular Parks workers, who are paid an entry-level wage of $22,011 versus the $1,400 in annual administrative costs to the City per workfare worker. As Judge Richard Braun stated in denying the City's motion to dismiss a displacement lawsuit, "Defendants certainly have benefited significantly from their reliance on WEP, under which they have received free labor." (7)
Commissioner Turner: The Commissioner argues at length that basic workplace protections, including Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, Occupational Safety and Health laws, and the Fair Labor Standards Act, are "out of place in the context of state run work experience programs under TANF." (p. 24).
Response: The Commissioner's argument, that employment laws should not apply to workfare workers, is incompatible with the workplace exploitation suffered by many workfare workers and with the public policy goal of promoting the value of work on the part of welfare recipients.
Like many other low-wage workers, workfare workers are in need of vigilant enforcement of the nation's employment laws, as evidenced by the repeated violations of basic employment rights that have been documented in New York City. For example, the Commissioner fails in his writings to mention that the Equal Employment Opportunity Commission (EEOC) found reasonable cause to pursue sexual harassment charges against the City's workfare program as well as a systemic claim of disability discrimination. (8) In addition, a New York appeals court has found that workfare workers are "public employees" within the meaning of the state's health and safety laws. (9) And with regard to the minimum wage specifically, the Commissioner's concerns are belied by the fact that New York City has operated a large-scale workfare program that is subject to the minimum and overtime laws and the state's welfare law limiting the hours of work that can be performed by workfare workers.
Finally, as documented by many studies, it's clear that welfare recipients have played by the rules of the 1996 welfare law, leaving welfare when they are able and entering the workforce in record numbers. Consistent with the stated public policy to reward work, their efforts should be valued and respected accordingly. Thus, as Peter Cove, the founder of America Works, stated in 1997, federal policies enforcing the workplace rights of welfare recipients "tells them that they're being valued, and that's terribly important." (10)
At the same time that Commissioner Turner is proclaiming New York City's workfare program a success and a model for Congress to expand the work requirements of the TANF law, New York City enacted legislation requiring the City to create a more promising alternative to the workfare program, called the Transitional Jobs Program (TJP). In contrast to the City's workfare program, the TJP would provide subsidized wage-paying jobs with training for those low-income families in New York who are having the most difficult time finding employment. The City Council recognized that an alternative to workfare is required as more than one-third of the New York City TANF caseload (59,000 families) is expected to reach the federal time limit, a much larger proportion than any other county in the State. (11)
A recent national evaluation of the federal Welfare-to-Work program conducted by Mathematic Policy Research found that similar transitional jobs programs now exist in twenty of the twenty-two cities and state studied. In addition, reports from Washington and other states that have these programs are showing promising results. In contrast, a New York Times editorial endorsing the Transitional Jobs Program had this to say about the merits of New York City's workfare program:
The mayor has created the largest workfare program in the country, putting tens of thousands of welfare recipients to work cleaning the parks and doing other unskilled work for the city in exchange for welfare checks. But the program does relatively little to help recipients train for and find permanent jobs. No one knows for sure how former welfare recipients are doing because the city irresponsibly refuses to monitor their progress. . . . Experience over the past 20 years provides little support for the mayor's optimism about workfare. (12)
Despite the City Council legislation creating the TJP - enacted after an override of a Mayoral veto -- the present Administration has ignored the implementation deadline imposed by the law. As stated in a recent letter to the Mayor from the Speaker of the New York City Council, the deadline for implementing the TJP passed on January 1, 2001. According to the Speaker, "Since that date has come and gone with no implementation, and since I am aware of no plan for implementation at a later date, I will assume that you have chosen not to implement the TJP. I strongly urge you to reconsider." (13) To date, there has been no response to the Speaker's letter and to similar letters sent over the past several months by other members of the City Council.
It is difficult to explain the opposition to implementing this relatively modest pilot program (creating 2,500 subsidized jobs a year over the next three years compared with the 30,000 welfare recipients now on workfare). Politics may be an issue, although the idea of creating paycheck jobs rather than workfare jobs has crossed party lines in the many states and cities that have adopted similar model programs. For example, instead of workfare, Pennsylvania's Republican Governor, Tom Ridge, has launched a major initiative to create 16,000 publicly-funded wage paying jobs. More likely, as advocated in the Commissioner's work experience paper, it's really about the Administration's uncompromising allegiance to the workfare program.
We urge the Subcommittee to look at the whole story of the workfare program in New York City, and to support public policies that provide increased flexibility and resources to adopt model initiatives in the states, not less flexibility as proposed by Commissioner Turner. For the reasons described above, workfare has not worked in New York City. Thus, when reauthorizing the TANF law, Congress should take appropriate action to address the program's inequities and promote other, more promising, welfare-to-work programs. Mr. Chairman and Members of the Subcommittee, thank you again for this opportunity to testify.
1. Co-authored with Thomas Main, Commissioner Turner's paper referred to in this testimony is entitled, "Work Experience Under Welfare Reform". It was presented at "The New World of Welfare: An Agenda for Reauthorization and Beyond" conference on January 31, 2001, sponsored by the Gerald R. Ford School of Public Policy of the University of Michigan (available on-line at http://www.spp.umich.edu/Conferences/turner-main.pdf).
2. The City lost its motion to dismiss the two Parks Department cases, and has appealed the judge's decision. The City also lost its motion to dismiss lawsuits challenging displacement in entry-level clerical and custodial positions in City agencies. According to the custodial workers' lawsuit, while there are hundreds of workfare workers cleaning the City's welfare offices, the number of custodial assistants in these offices has dropped from 136 to 24, representing an 85% staff reduction. In another City agency, the number of custodians dropped from 389 six years ago to just 115 today. A fifth lawsuit that is still pending at the trial level challenges displacement in the City's public hospitals, where over 600 union workers were scheduled to be laid off before the lawsuit was filed. Immediately after the lawsuit was filed, all of the workfare workers (over 1,000) were transferred from their assignments with the City hospitals.
3. The report, entitled "The Work Experience Program (WEP): New York City's Public Sector Sweatshop Economy," was authored by Community Voices Heard (www.cvhaction.org). The report also found that workfare workers are performing 35 of 36 tasks in the three union job titles surveyed (City Parks workers, custodial assistant, and clerical aide), including large numbers of workfare workers who are performing the equivalent of supervisory and skilled work.
4. The 1997 welfare law significantly expanded the state's workfare displacement protections. While retaining a number of other displacement provisions, the new law prohibited workfare assignments where "a substantial portion of the work [is] ordinarily and actually performed by regular employees." For the first time, the state law also precluded the loss of a bargaining unit position resulting from a workfare assignment where the welfare recipient is "performing, in part or in whole, the work normally performed by the employee is such position." Social Services Law, Section 336-c(e). Also reflecting the vast departure from the prior state law, the 1997 amendments eliminated the requirement that workfare workers be compensated at the "comparable" wage (i.e., the "rate of pay for persons employed in the same or similar occupations"), while maintaining the requirement that workfare workers not be compelled to work hours more than the value of their grant divided by the minimum wage.
5. Lee Saunders, Administrator of District Council 37, AFSCME, AFL-CIO v. City of New York, Supreme Court of the State of New York, County of New York, Index Nos. 102129/1999, 103750/1999, Decision and Order denying the City's motion to dismiss, dated March 31, 2000.
6. Testimony of Lee Saunders, Administrator, District Council 37, AFSMCE, AFL-CIO, Regarding Int. 354 before the New York City Council Committee on General Welfare (April 22, 1999).
7. See the trail court's Opinion and Order (dated January 19, 2000), entered by Justice Richard F. Braun in Lee Saunders, Administrator of District Council 37, AFSMCE, AFL-CIO v. City of New York, Supreme Court of the State of New York, County of New York, Index No. 107675/99. Recently, the City proposed creating an additional 1,000, six-month, paid positions in the Parks Department, using TANF-subsidized workers. "City Plans Park Jobs to Follow Welfare," Newsday (February 28, 2001). Notably, the state's displacement laws regulating TANF subsidized jobs is more strict that the laws that apply to unpaid workfare programs. For example, the law expressly requires these subsidized TANF workers to be deemed employees for the purposes of the state's collective bargaining laws. It also requires parity in benefits and notice must be provided to the union with an opportunity for the union to comment on the proposed placements. Social Services Law Section 336-f.
8. According to NOW Legal Defense and Education Fund, since 1998, at least 10 sexual harassment complaints have been filed against the City with the Equal Employment Opportunity Commission (EEOC), including a charge against the welfare department itself where a workfare worker was pressured to have sex by her supervisor. In 1999, the EEOC found "reasonable cause" to pursue certain charges. "City Must Shield Workforce on Harassment, New York Times (October 1, 1999). The EEOC District Director also concluded that methodone users were being discriminated against in the operation the program, in violation of the ADA. "Workfare Victory for a Recovering Addict Holds Promise for Others," New York Times (September 10, 2000).
9. Capers v. Guiliani, 1998 WL 596625 (N.Y. App.Div. 1998) (holding that workfare workers are covered by the state's public employee health and safety law, while also reversing the trial court's decision that had authorized 6,000 workfare workers to sue as a class to enforce the state's public sector health and safety laws).
10. "White House Calls for Minimum Wage in Workfare Plan," New York Times (May 16, 1997).
11. "State's Poorest Facing Loss of U.S. Aid: 5-Year Limit Nearing for 71,400 Families," New York Times (February 10, 2001).
12. Editorial, "Finding Jobs for Welfare Clients," New York Times (March 23, 2000).
13. Letter from Peter Vallone, Speaker of the New York City Council, to the Honorable Rudolph W. Guiliani, dated February 16, 2001.