Rhode Island pays families who have been in the state less than a year 70% of the TANF benefits that would otherwise be provided. In granting the motion for a preliminary injunction, the court concludes that plaintiffs (1) are likely to prevail on the merits (indeed, "defendant's chance of prevailing on the merits is somewhere between slight and nil") and (2) are suffering irremediable harm. As to the merits, the state has clearly penalized all new residents for having exercised their constitutionally protected right to migrate from state to state, and that the state must therefore justify its discrimination between recent and long-term residents by a compelling state interest. The state's justification is that it is seeking to encourage new residents to obtain employment. The Court says that it "cannot fathom how the [differential in benefit levels] is narrowly tailored toward encouraging welfare recipients to find work...." Moreover, the state "provides no solution to this rather mystifying puzzle..." and "offers no evidence that newcomers are somehow less likely to seek work... or are able to make do on less." As to harm, plaintiffs are living "on the economic precipice." Deprivation of 30% of the welfare benefit "works immediate hardships which cannot be remedied..."
Plaintiffs' attorneys: ACLU of Rhode Island (volunteer attorneys David
Cicilline, tel. 401-273-5600, and Dianne Izzo) and Henry Freedman of the
Welfare Law Center.
Plaintiffs are permanent resident aliens who received Food Stamps before the 1996 federal welfare law imposed a citizenship requirement and who have pending applications for U.S. citizenship before the INS. They claim that the Food Stamp transition procedures implementing the federal welfare law's citizenship requirement, which require that non-citizens complete a recertification process and show proof of citizenship buy August 22, 1997, violate due process because INS delays in processing their applications did not allow them to satisfy the citizenship requirement. In a unanimous decision the Court of Appeals has affirmed both the lower court's granting of summary judgment for the defendants and its decision to certify a class limited to individuals in the Seventh Circuit instead of the nationwide class sought by plaintiffs.
The court concluded that plaintiffs were not deprived of a protected property interest, rejecting plaintiffs' argument that they have a property interest in Food Stamp recertification procedures that provide a fair opportunity to establish continued eligibility for benefits. Plaintiffs had claimed that the strict recertification deadline and the INS processing delays made recertification a sham. The court, however, distinguished between a protectible property interest and the procedures to protect that interest. It distinguished Youakim v. McDonald, 71 F.3rd 1274 (7th Cir. 1995), cert. denied, 116 S. Ct. 2571 (1996) in which the court held that transition procedures to implement a new licensing requirement for foster parents violated due process. According to the court, the Youakim plaintiffs had an undisputed property interest in foster care benefits, but plaintiffs in this case did not have a property interest in continuing Food Stamp benefits after the end of the certification period. Finally, the court held that the decision limiting the class to those in the 7th Circuit was within the lower court's discretion because the named plaintiffs reside in the 7th Circuit, plaintiffs rely heavily on 7th Circuit case law, INS delays vary according to geographic reasons, and nationwide class actions can foreclose adjudication by different courts.
Plaintiffs' attorneys: John Bouman, Poverty Law Project, National Clearinghouse
for Legal Services, Inc., 2055 West Monroe, 2nd Floor, Chicago, IL 60606;
tel. 312-263-3830; and the National Immigration Law Center, National Senior
Citizens Law Center, SSI Coalition for a Responsible Safety Net, Lehrer
& Redleaf, Food Research and Action Center, and Farmworker Justice
Fund, Inc.
This class action, on behalf of children threatened with loss of Food Stamps as a result of the state's policy of terminating Food Stamps for the entire household if the adult has failed to cooperate with child support and paternity establishment requirements under the state's Family Independence Program (the AFDC replacement), challenged the state's policy as contrary to the Food Stamp Act. The court has agreed that the state's policy is impermissible. The court's opinion analyzes the statutory language (and uses a different analysis than plaintiffs to reach its conclusion), relies on legislative history indicating that Congress modified the language of an earlier proposal that permitted the entire family to be sanctioned to limit the sanction to the non-cooperating individual, rejects the argument that the fact that Congress wanted to harmonize Food Stamps and TANF means the challenged policy should be upheld, and analyzes a USDA policy memorandum which, although not entitled to complete deference, "complements" plaintiffs' position.
Plaintiffs' attorney: Jackie Doig, Center for Civil Justice, 320 S.
Washington, 2nd Floor, Saginaw, MI 48607; tel: (517) 755-3120; fax: (517)
755-3558; email: cfcj@concentric.net.
This action, on behalf of a class of formerly homeless and jobless individuals, claimed that the defendants, a Business Improvement District and affiliated non-profits which engage in related activities to protect the investments of area property owners and promote the area's businesses, violated the Federal Fair Labor Standards Act (FLSA), 29 U.S.C. § 201, and the New York State Minimum Wage Act by paying them sub-minimum wages for clerical, administrative, maintenance, food service and outreach work in their Pathways to Employment (PTE) Program. PTE is a work program operated by one of the defendants as part of a larger program for homeless individuals that included outreach and services. Participants in the work program worked for 40 hours a week, for a total of 700 hours (although some worked more). The program paid participants $40-$60 per week or about $1.00 to $1.50 per hour. The work assignments contributed to the defendant's overall operation. Some participants performed work for outside businesses under contracts between the defendant and the outside businesses. These contracts produces significant revenue for the defendant, and plaintiffs' work competed with other businesses that paid minimum wages.
The court rejected defendants' claims that they are not covered by FLSA, including the argument that plaintiffs were not employees for FLSA purposes. The court applied the economic realities test to find that plaintiffs were employees. It found that the facts did not support a conclusion that plaintiffs were trainees under the U.S. Department of Labor's six-part test for determining whether individual are trainees. It also concluded that plaintiffs had an expectation of compensation and that the employer received an immediate advantage from the work performed that outweighed any benefits that plaintiffs received from the program. The court found that defendants also violated the state minimum wage law.
Plaintiffs' attorneys: Mitchell Lowenthal et al., Cleary, Gottlieb,
Steen & Hamilton, One Liberty Plaza, New York, NY 10006; LeBoeuf, Lamb,
Greene & MacRae, LLP, New York.
Each time a court strikes down a durational residency requirement as unconstitutional, New York responds by adopting a harsher policy. This suit challenges the latest requirement, under which benefits are paid to a person or family that has resided in the state less than one year at the former state's benefit level, but not less than 50% of the New York level or more than the New York level. Although the New York agency has not adopted implementing regulations, it may do so at any time. Plaintiffs allege that persons are now being paid reduced benefits in some counties where local agency staff have been trained about the new law. The plaintiff is a person who lived in Rochester from 1955 to 1990. She then moved to Florida with her husband who was looking for work. Her marriage ended in 1992. In 1997 illness forced her to stop work, and she then learned she was infected with the AIDS virus. Her family brought her back to Rochester, but can only provide emotional, not financial, support. She now receives $394 in cash assistance, and pays $300 rent. If the new law is implemented and benefits reduced by 50%, she will not be able to afford rent and meet other needs caused by her illness.
Plaintiff's attorneys: Susan Antos, Greater Upstate Law Project, tel.
(518) 462-6831; Susan Silverstein and Bryan Hetherington, Public Interest
Law Office of Rochester, tel. (716) 454-4060; and Henry A. Freedman, Welfare
Law Center.
Petitioner, a Home Relief recipient, challenged a fair hearing decision upholding the agency's determination to use the minimum wage in determining the number of hours he was required to engage in workfare under the state's Work Experience Program. Petitioner argued that the agency had not determined the comparable wage for his position as required by state regulations. The agency had classified him as a clerical aide entitled to minimum wage, but petitioner testified at the fair hearing that when the work site realized that he had software and programming skills, he was directed to design data base and other software tools. The agency argued that petitioner performed any higher level tasks as a volunteer, but the court, citing Brukhman v. Giuliani, 174 Misc. 2d 26, rejected this argument as an attempt to evade the comparable wage requirement. The agency was ordered to use the wage rate paid to regular employees for comparable work in determining petitioner's workfare hours.
Petitioner's attorney: Terence Whelan, Legal Services of Central New
York, 44 Public Sq., Watertown, NY 13601.
Petitioner challenged a sanction imposed for his failure to perform
a workfare assignment when he took his ill mother to the hospital.
The Court reversed the adverse administrative hearing decision and held
that the local agency had the burden of proving that the petitioner had
willfully and without good cause failed to comply with employment requirements
and that the local agency had failed to meet that burden.
The court has affirmed a Worker's Compensation Board determination that
the county was the general employer and solely responsible for claimant's
workers' compensation. Claimant's injury occurred while she was working
in her workfare assignment as a kitchen aide for the Salvation Army, and
a dispute .arose between the county and the Salvation Army as to liability
for her benefits. The court held that there was substantial evidence
for the decision that the county was liable as the general employer since
it had general overall control over claim work, even though the Salvation
Army controlled the claimant's daily activities. For example,
the county provided the public assistance grant and determined the number
of workfare hours, required claimant to submit time sheets to the county,
and retained the right to monitor the work site and remove claimant from
the program if supervision was improper.
In an effort to make more meaningful the requirement that the welfare agency follow past hearing decisions or explain the reason for not following a decision (administrative stare decisis) by making decisions accessible, the Greater Upstate Law Project has summarized significant recent welfare fair hearing decisions. The summaries are available on the web through the Western New York Law Center's website: www.wnylc.com. The web posting contains links to the actual decisions. The fair hearing decisions address a range of welfare issues, including application problems and check delays, budgeting issues, work requirements and sanctions for failure to comply with work rules, shelter and utility issues, Medicaid and Food Stamps..