The National Labor Perspective of the AFL-CIO
Fannell, Jeffrey B., St. John's Law Review
When President Clinton signed the new welfare law two years ago, he proclaimed it would "end welfare as we know it."' This is a rather catchy phrase that has been repeated by many supporters of welfare reform. Hidden behind this simplistic slogan, however, is the fact that the new welfare law represents a dramatic and complex change in social policy in this country.
The new welfare law abolished the Aid to Families with Dependent Children program, which was a federal centralized entitlement system and replaced it with a system of block grants to the states.2 The new law imposes tough work requirements, offers limited labor protections, and puts a cap on the receipt of benefits.3 Because of the tremendous impact the new law has on the workforce-not just welfare workers, but on existing workers as well-the American Federation of Labor and Congress of Industrial Organization ("AFL-CIO") and its affiliated unions have been very involved in this issue.
Under the new law, there is a major emphasis on moving welfare recipients into jobs. The federal government has scrapped the federal entitlement system and established a collection of work programs operated by the states. States are required to place 30% of their 1998 caseloads into work activities, rising to 50% in the year 2002.4 Recipients are required to work a minimum of twenty hours a week.5 Clearly, there is an emphasis on work and on creating workers, but amazingly, the statute that mandates this is silent on the issue of worker protections.6 It does not even address the Fair Labor Standards Act,7 Title VII protections against unlawful discrimination,8 or other workplace laws.
From the outset, the AFL-CIO, working in collaboration with welfare groups and civil rights groups, urged the Clinton administration to address this glaring lack of explicit labor protections in the new law. As a result of those efforts, in May 1997 the U.S. Department of Labor ("DOL") issued policy guidance stating that the Fair Labor Standards Act, Occupational Safety and Health Act, unemployment insurance, and anti-discrimination laws apply to welfare workers as fully as they apply to regular workers.9 The key basis for determining coverage was whether welfare workers were deemed "employees" under the relevant statutes. The DOL emphasized that whether welfare workers are "employees," and thus entitled to coverage must be determined on a caseby-case basis. 10
Unfortunately, this DOL policy creates issues, but does not resolve them. Some states, following the issuance of the DOL's policy guidance, said they would not honor the policy unless ordered to do so by the courts. Recently, the California Department of Social Services was about to issue a draft instruction letter to its counties, instructing them not to apply the Fair Labor Standards Act to welfare workers engaged in work activities or community service. This action was obviously counter to the DOI:s guidance. The California Department of Social Services is contemplating making a broad categorical conclusion that if one is engaged in certain activities under the new welfare regime, then they can never be an employee.
The DOL explicitly said such determinations must be made on a case-by-case basis, and that coverage must be determined by the type of activities workers are involved in." Clearly, this opened the door for a plethora of legal arguments about worker protections.
Another key battleground is the right of welfare workers to organize and bargain collectively. Incredibly, the new welfare law is silent on whether the National Labor Relations Act applies to welfare workers.
The AFL-CIO believes that moving from welfare to work means moving from welfare to self-sufficiency. For workers leaving the welfare rolls, the key to becoming self-sufficient is a good paying job, which can be most readily attained by giving welfare workers the right to organize. This new Act is not just about moving to work and finding a job allowing workers to be self-sufficient. …