Major Developments in NCLEJ Litigation Since 2002 Case Developments
(1996 - 2004) Other NCLEJ Resources

Welfare Litigation Developments Since the PRA

October 1997

This article was first published in Vol. 31 Clearinghouse Review, pp. 435-453 (Jan.-Feb. 1998)

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The Welfare Law Center helps poor people get the basic subsistence, justice and fairness to which they are entitled.

For the past 33 years, the Center has worked with and on behalf of poor people to ensure that adequate income support -- public funding provided on the basis of need — is available whenever and to the extent necessary to meet basic needs and foster healthy human and family development.

Our program for 1998 and beyond entails working on several fronts to fulfill our goals, including:

• Serving as direct counsel or co-counsel in welfare litigation across the country;
• Working with and representing client/poor people's organizations;
• Leading advocacy efforts (through litigation and otherwise) regarding the formulation and implementation of state and federal income support programs for needy families.

The Center believes adequate income support is a critical element in any comprehensive strategy to reduce poverty, enable and encourage personal growth, and ensure that all can live with dignity. The Center uses its special expertise in cash income support programs to promote the creation, maintenance, strengthening, and fair administration of such programs, and, as appropriate, to address other publicly supported means of improving poor people's income.

The Center receives financial support from a broad array of sources, including foundations, corporations, the Interest on Lawyer Account Fund of the State of New York, law firms, church groups, community organizations, and individuals. The Center is a nonprofit corporation tax-exempt under Section 501(c)(3) of the Internal Revenue Code. Bequests and contributions to the Center are tax-deductible and are greatly appreciated.

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Welfare Litigation Developments Since the PRA

by Mary R. Mannix, Marc Cohan, Henry A. Freedman, Christopher Lamb, Jim Williams

[Mannix, Cohan, and Lamb are Senior Attorneys and Freedman is Executive Director of the Welfare Law Center, 275 Seventh Ave., Suite 1205, New York, NY 10001, tel. (212) 633-3967; fax (212) 633-6371; e-mail: wlc@welfarelaw.org. Williams, who wrote the section on the DOL guidance and contributed to the minimum wage and workfare section, is a Senior Attorney at the National Employment Law Project, 55 John St., 7^th Fl., New York, NY 101038, tel. (212) 285-3025; fax (212) 285-3044; e-mail: hn0669@handsnet.org.]

I. Introduction

The Personal Responsibility and Work Opportunity Reconciliation Act (PRA),⁽¹⁾ enacted in August 1996, replaced the federal AFDC program with block grants to the states and at the same time wiped out federal statutory and regulatory protections that had provided the basis for significant welfare litigation over the past 25 years. The months since enactment of the PRA have been a time of enormous transition. As states began to exercise their new authority to define the scope of their welfare programs for poor families, lawyers for these families began to confront the challenge of identifying other sources of law, such as state statutes, other federal statutes, and state and federal constitutional provisions, that can be used in litigation to protect families harmed by unfair state policies and practices. At the same time, these lawyers responded to the challenges posed by diminishing resources for welfare representation caused by funding cuts and LSC restrictions on class actions and litigation challenging welfare reform.

This article reviews welfare litigation developments since the summer of 1996 and comments on efforts to assure adequate resources for welfare representation. Overall, challenges to state policies discriminating against new state residents and to various work program requirements or abuses have emerged as major themes of recent welfare litigation, and there have been significant early victories. With respect to welfare work issues, the U.S. Department of Labor's indication that federal employment laws generally apply to welfare recipients is a helpful tool for advocacy. Other pending or recent litigation has challenged specific state policies, including child exclusion policies, child support cooperation requirements, and the elimination of the child support pass-through. With two exceptions, one initially successful and one unsuccessful, litigation has not challenged general state TANF implementation. In the area of procedural fairness, advocates should be prepared to address notice and hearing issues, arbitrary decisionmaking, and problems arising from privatization of welfare.

All told, these developments confirm that lawyers are responding with creative and carefully targeted litigation to address the harms that welfare changes cause poor families, and that in the process welfare lawyers are strengthening and expanding partnerships with other public interest lawyers and the private bar. Developments, particularly in the area of work requirements, also underscore the critical role that individual representation will continue to play in assuring that state policies are correctly applied and that growing state discretion is not arbitrarily exercised.

Litigation developments in the past year should be seen in the overall context of state transitions from AFDC to TANF programs. It is too early to identify the full range of legal issues that will arise from state TANF implementation. While most states implemented TANF before the July 1, 1997 deadline, many began their TANF programs by continuing to operate under existing state law while awaiting state legislative action. For example, California and New York, which together accounted for over 28% of all AFDC families in fiscal year 1995, only adopted legislation overhauling their welfare systems in August 1997. And the full effects of the most significant new provisions, like time limits on benefits and increasingly strict work participation requirements, will not be evident for some time.

The following discussion focuses on AFDC and TANF cases and selected General Assistance cases identified as a part of the Welfare Law Center's welfare litigation monitoring effort. It may not include all developments, and we encourage advocates to keep us informed of their welfare litigation so that we, in turn, can included this information in our regular litigation updates.⁽²⁾

II. Discrimination Against New State Residents

Despite the strong likelihood under Shapiro v. Thompson⁽³⁾ that such schemes are unconstitutional, at least eighteen states and the District of Columbia have adopted some sort of restrictions on benefits to new residents in their TANF programs.⁽⁴⁾ The popularity of these policies has continued unabated despite a growing body of social science research that shows that levels of public assistance benefits has little or no impact on poor persons' decisions to migrate from state to state.⁽⁵⁾

The most popular type of statute disfavoring new residents pays the new residents the benefit available in their former states for a period of either six months or a year.⁽⁶⁾ At least one state, Rhode Island, has eschewed this multi-tiered approach and adopted an across-the-board 30% reduction in benefits to all new residents for one year regardless of what state they previously resided in.⁽⁷⁾ Other states have adopted complete denials of assistance to new residents for periods of thirty or sixty days.⁽⁸⁾ At least four states which have decided to pay state-financed benefits to immigrants who are ineligible for federally-funded benefits deny those benefits to immigrants who are new state residents for periods of six months to a year.⁽⁹⁾ All of these variations on disfavoring new residents are subject to serious federal constitutional challenges.

In the last year, three more courts have joined the numerous courts that have already held that paying new residents the benefits available in their former states is unconstitutional.⁽¹⁰⁾ A federal district court in California⁽¹¹⁾ and a state appellate court in New York⁽¹²⁾ both agreed with previous courts that these statutes constitute a penalty on the federal right to travel and thus are subject to strict scrutiny. The New York court also found that the provision violated the state constitutional guarantee of aid to the needy. A Pennsylvania federal district court, on the other hand, rejected the argument that such statutes constitute a penalty on the right to travel and thus declined to apply strict scrutiny.⁽¹³⁾ Instead, the court found that the Pennsylvania statute was not rationally related to the purpose set forth by the state in its defense. In response to Pennsylvania's claim that the purpose of the statute is to encourage new residents to work, the court cited Shapiro's holding that such a purpose does not justify disparate treatment of new residents since the purpose of encouraging welfare recipients to work could equally apply to long-term residents.⁽¹⁴⁾ It then went on to discuss how a multi-tier benefit structure was particularly unsuited to this purpose since the existence and extent of any work incentive for new residents is entirely dependent on what state they previously resided in.⁽¹⁵⁾

There has been no new litigation over the last year challenging thirty or sixty day outright denials of aid to new residents. Two earlier court decisions, however, suggest that if such litigation is brought these will be harder cases than the cases challenging one year or six month multi-tier systems. In 1992, a divided Wisconsin Supreme Court upheld a sixty day denial of general assistance aid to new residents in Jones v. Milwaukee County,⁽¹⁶⁾ finding that a sixty day deprivation of assistance did not constitute a penalty on the right to travel. Three years later in Warrick v. Snider,⁽¹⁷⁾ a federal district court in Pennsylvania followed Jones in denying a preliminary injunction in a case challenging a sixty day denial of general assistance benefits to new residents.

Notwithstanding the decisions in Jones and Warrick, there remains a good argument that any denial of subsistence benefits to new residents constitutes a sufficient penalty on the right to travel to trigger strict scrutiny. The Supreme Court's decision in Shapiro did not turn on the length of the denial of assistance but rather on whether the denial compromised the plaintiffs' ability "to obtain the very means to subsist--food, shelter, and other necessities of life."⁽¹⁸⁾ Attorneys litigating future cases will have to be scrupulous in documenting that even relatively short denials of cash aid can compromise poor persons' access to basic necessities and that other available benefits are inadequate for the purpose of meeting basic needs.

There has also not been any litigation in the last year regarding denials of aid to new residents who are immigrants. Any challenges to these provisions will be based both on right to travel law and Supreme Court precedents prohibiting state discrimination against immigrants.⁽¹⁹⁾

III. Work Programs

The PRA, of course, greatly increased the numbers of welfare recipients whom the states are required to have in work-related activities while at the same time narrowing the types of activities that can count towards the federal participation rates. While the states retain some latitude in creating work programs for public assistance recipients, it seems likely that the number of recipients in "workfare"⁽²⁰⁾ programs will increase substantially over the next few years. By far the country's largest workfare program is in New York City, which has approximately 40,000 welfare recipients in its Work Experience Program ("WEP"). ⁽²¹⁾ Because of the size of New York's workfare program and because the City's government started rapidly expanding the program nearly two years before passage of the PRA, many workfare-related issues are already being litigated in New York while workfare programs in other parts of the country are just getting off the ground.

The following discussion addresses litigation issues that arise around exemptions and work assignments, recent helpful U.S. Department of Labor guidance on federal employment protections for welfare recipients, workfare-related litigation to enforce worker protections and to challenge displacement, and sanction issues.

A. Pre-Assignment Issues

Broadly speaking, there are two types of issues that can arise prior to a work program assignment--whether an individual should be given an assignment at all (i.e. whether he or she qualifies for an exemption) and, if he or she is not exempt, what assignment should he or she be given. Both types of issues present the potential for litigation.

With the states under pressure to meet federal participation rates, individual welfare recipients will often have to press their cases for exemptions vigorously in order to be heard.⁽²²⁾ It may also be necessary to pursue systemic remedies where exemption decisions appear to be routinely bad. In New York City, for example, a private medical contractor conducts over 80,000 work program-related medical exams each year. Recipients complain that the exams often last two to three minutes and that doctors refuse to consider medical records that recipients bring with them to exams. Decisions denying medical exemptions are withdrawn or overturned in fair hearings approximately half the time.⁽²³⁾

Although no case challenging the routine failure to make appropriate medical exemption decisions has yet been brought in New York, workfare participants with disabilities have sued the social services department on the related issue of the City's failure to make appropriate assignments for people who can work but who have limitations.⁽²⁴⁾ Plaintiffs in that case include a woman with severe asthma and a fifty-seven year old woman with hypertension and severe back pain who uses a cane and a back brace, both of whom were assigned to maintenance positions that exposed them to dust and fumes and which required lifting and constant bending. Plaintiffs claim that the City is violating the state social services law and the Americans with Disabilities Act in failing to give them work assignments that are consistent with their limitations. In another pending case, a workfare worker is suing for monetary damages as a result of a heart attack allegedly arising from a workfare assignment he was not physically capable of performing.⁽²⁵⁾

A very different question regarding the appropriateness of work program assignments arises when welfare recipients who wish to pursue education or training are confronted with a demand by the social services department that they perform some other work-related activity, such as workfare. In New York City, TANF recipients sued the social services department, alleging that the department had a policy of assigning almost all parents on public assistance to workfare in violation of state social services law provisions which required individualized assessments and employability plans and assignments consistent with recipient preferences whenever possible. A state trial judge has issued a preliminary injunction order requiring the City to comply with these provisions.⁽²⁶⁾ Welfare recipients in New York's Home Relief program, who were not subject to the same assessment and employability plan requirements as TANF recipients, were able to utilize a provision of the state social services law prohibiting work-related assignments that "interfered" with education to obtain a right to WEP assignments whose hours did not conflict with their class schedules until that provision was repealed as part of a large welfare reform bill.⁽²⁷⁾

B. Terms and Conditions of Work Assignments

1. Department of Labor Guidance.

In May 1997, the U.S. Department of Labor (DOL) issued a guide to the states⁽²⁸⁾ setting forth the rights of workfare workers to protections under federal employment laws including: the Fair Labor Standards Act ("FLSA"),⁽²⁹⁾ which governs minimum wage and overtime rights; the Occupational Safety and Health Act ("OSH Act"),⁽³⁰⁾ which governs workplace health and safety; unemployment and anti-discrimination laws.⁽³¹⁾ The DOL Guide advises states to consider the applicability of these laws as they design and implement work programs.

As the document states, it is a "starting point" and it "cannot provide the answers to the wide variety of inquiries that could be raised regarding specific work programs."⁽³²⁾ For advocates, the Guide can serve as a basis for beginning a dialogue with state and local officials responsible for developing work programs and with officials of local agencies that enforce the requirements of the laws described in the DOL Guide.

In New York City for example, advocates for workers participating in New York's WEP program have met with officials of the administrative agencies that enforce the requirements of workplace health and safety and anti-discrimination laws. The goal of these meetings has been to educate agency personnel about WEP should the agency receive complaints directly from WEP participants concerning violations of the law. In addition, many of the agencies have their own enforcement agendas and priorities that can be shaped by community interaction. Finally, the meetings lay the groundwork for working effectively with the agency on enforcement in particular cases that may arise in the future. The DOL Guide has served as a useful tool in those discussions.⁽³³⁾ However, while many employment laws are enforceable through administrative proceedings, in appropriate cases advocates may need to litigate to enforce health and safety or minimum protections for their clients.⁽³⁴⁾

As the Guide correctly points out, the federal welfare law does not exempt welfare recipients from any federal labor or employments laws. Since the U.S. DOL has enforcement authority over FLSA, its interpretation of FLSA's application to work programs should carry significant weight as case law in the area develops.

Under the broad definition of "employees" under FLSA, most welfare recipients participating in work programs can be required to work for no less than the minimum wage under the statute. The only exception to this are those welfare recipients participating in programs which meet the very narrow FLSA definition for training programs, a category to which most workfare programs do not belong.

The Guide advises that the recipient's cash assistance and Food Stamps may be counted toward meeting the minimum wage requirement, but not other non-cash benefits, such as Medicaid, child care services, transportation, etc. Thus, recipients will have to "work off" the value of their TANF grant plus Food Stamps⁽³⁵⁾ divided by no less than the minimum wage to determine the number of hours of required work.⁽³⁶⁾

In addition to FLSA, the Guide also discusses application of the OSH Act. It is important to note that the Occupational Safety and Health Administration ("OSHA") does not have jurisdiction over public sector employers. As a result, state health and safety laws, if any, may apply to a particular workfare program as opposed to the OSH Act. However, where the workfare participant is placed in a work program outside the public sector, such as a non-profit agency, the OSH Act may apply.

If the jurisdiction of a federal or state health and safety agency is uncertain in a particular situation, informal discussions with the local enforcement agencies concerning jurisdiction may be worth considering since it is likely that the agency will need time to resolve the issue through slowly moving bureaucratic channels. Local public and private sector unions may be a good source of information about these agencies since they frequently initiate complaints on behalf of their members. Many localities also have Committees on Occupational Safety and Health, non-profit groups that focus on workplace health and safety, which can also serve as a resource for advocates.

While the U.S. DOL does not have enforcement authority over federal employment discrimination laws, the Guide advises that these laws "apply to welfare recipients as they apply to other workers."⁽³⁷⁾ TANF expressly provides that four non-discrimination laws apply to "any program or activity which receives funds under TANF: the Age Discrimination in Employment Act ("ADEA");⁽³⁸⁾ Section 504 of the Rehabilitation Act of 1973 ("Rehab. Act");⁽³⁹⁾ the Americans with Disabilities Act of 1990 ("ADA");⁽⁴⁰⁾ and Title VI of the Civil Rights Act.⁽⁴¹⁾

As with safety and health agencies, informal discussions concerning jurisdiction with local agencies that enforce anti-discrimination laws before the need to invoke agency enforcement should be considered. Agency enforcement power will often turn on whether an employer/employee relationship exists under the meaning of the statute the agency enforces. Advocates should be prepared to illustrate to the agency that it will have jurisdiction by demonstrating how the local workfare program meets the standards applied by the local agency to determine if an employer/employee relationship exists.

In addition, since most of the anti-discrimination laws, such as the Rehabilitation Act and the ADA, do not require aggrieved persons to resort to an administrative agency for a remedy, advocates may wish to pursue litigation to enforce their clients' rights in certain cases.

The Challenge Ahead. Over the summer of 1997, the AFL-CIO and a coalition of civil rights, religious, national and grassroots advocacy groups defeated Republican proposals in Congress in the 1997 federal budget bill seeking to reverse the trend to apply federal employment laws to workfare workers.

This policy development has widespread public support. Despite public opinion polls showing general support for the welfare law, the public also supports employment law protections for workfare workers. A national survey in June 1997 revealed that 69% of the voting public agree that workfare workers should be paid at least the minimum wage and be covered by other basic federal employment protections.⁽⁴²⁾ When probed further, 59% of those surveyed agreed that an exemption of workfare workers from the minimum wage laws would undermine the wages of other workers.⁽⁴³⁾ This represents an almost two-to-one margin over the 31% who believe that if workfare workers are paid at minimum wage rates, the public would have to support higher welfare budgets and that welfare recipients who want better pay should get off welfare and find a job on their own.⁽⁴⁴⁾

In 1996, there had also been strong public support for an increase in the federal minimum wage (the second phase of the increase, to $5.15 an hour, took effect on September 1, 1997). Taken together, this suggests that there is broad public support for policies that help level the playing field for welfare recipients entering the labor market and highlights the potential to integrate advocacy for low-wage workers with that of welfare recipients.

Unfortunately, the fight to resist erosion of employment rights as they apply to workfare participants is not over. As of October 1997, the Republican leadership has made clear their intention to revisit the DOL workfare directive as part of the federal appropriation process. Speaking before the Working Women's conference, organized by the AFL-CIO in September 1997, Vice-President Gore, however, stated that the Administration would veto any such legislation. The coalition and grassroots advocates that fought for and helped secure the rights under the DOL directive will continue to make their voices heard.

2. Litigation to Enforce Worker Protections.

Several recent court cases and administrative hearing requests have sought to enforce rights that workfare workers have under laws designed to protect their rights as workers as well as under applicable welfare statutes and regulations.⁽⁴⁵⁾ Almost all of these cases challenge policies or practices that discriminate against workfare workers in comparison to regular workers.

a. Health and Safety

Recipients required to engage in workfare are entitled to safe working conditions no worse than those enjoyed by regular employees performing similar work. In Capers v. Giuliani⁽⁴⁶⁾, a class of workfare workers assigned to cleaning duties on city streets and by arterial highways for the New York City Departments of Sanitation and Transportation challenged the lack of adequate work place health and safety protections. The plaintiffs claimed that they were denied access to 1) toilets, washing facilities, and drinking water; 2) personal protective equipment; 3) traffic safety equipment; and 4) training and supervision. In August 1997, the Capers court certified a class and entered a preliminary injunction enjoining assignment of any class member to a workfare assignment until the City provides necessary health and safety protections, including access to toilets and potable water, gloves and face masks, and training regarding potential worksite hazards.

In Capers, plaintiffs avoided the question of whether the State Department of Labor has exclusive jurisdiction over the question of health and safety standards by not suing directly to enforce the health and safety statute. New York States's Public Employee Safety and Health Act,⁽⁴⁷⁾ which is similar to the federal Occupational Safety and Health Act,⁽⁴⁸⁾ sets forth health and safety requirements for workfare workers.⁽⁴⁹⁾ The right of action under federal and state health and safety statutes typically belongs to the enforcement agency rather than the worker. However, plaintiffs sought to enforce existing social service law prohibitions against assignment to workfare activities that endanger the health or safety of the recipient, thereby enforcing the health and safety statute indirectly.

Workfare workers can, in many states, also file individual complaints regarding hazardous or unsafe working conditions with the State enforcement agency. In one such pending case, workfare workers challenge the State agency's refusal to permit workfare workers to designate an individual or entity authorized to represent them in dealings with the enforcement agency in the same manner as organized regular employees.⁽⁵⁰⁾

Workfare workers should also be entitled to workers compensation coverage. At least one court has held that a state statutory scheme which provides lesser worker compensation benefits to dependents of workfare workers than to dependents of regular employees violates the federal and state constitutional guarantees of equal protection. ⁽⁵¹⁾

b. Wage and Hours Issues

Minimum Wage Violations. The authors are not aware of any post-PRA cases challenging the calculation of workfare hours based on less than the minimum wage. However, this issue is likely to be hotly litigated as more and more states rely on workfare to meet their participation rates and as the number of hours of participation in work activities mandated by the PRA increases from 20 to 30 for single parent households by the year 2000.⁽⁵²⁾

Plaintiffs seeking minimum wage protections will want to rely on both the federal Fair Labor Standards Act⁽⁵³⁾ (FLSA) and applicable state minimum wage laws. Advocates contemplating FLSA actions against state-operated workfare programs should be aware, however, that FLSA actions against states have been hindered by Seminole Tribe of Florida v. Florida⁽⁵⁴⁾ where the U.S. Supreme Court held, in a 5-4 vote, that the immunity the Eleventh Amendment confers on states cannot be abrogated by Congress when it is acting through the Interstate Commerce Clause. Several courts have dismissed FLSA actions against states since Seminole Tribe based on a determination that there can be no cause of action in federal court because Congress lacked the power to abrogate states' Eleventh Amendment immunity in enacting FLSA.⁽⁵⁵⁾ This suggests that advocates should look to state wage and hour law when considering challenging minimum wage violations in workfare programs. Workfare programs with counties, municipalities, not-for-profits and other private employers may still be subject to FLSA coverage.

Advocates are also cautioned that at least one court⁽⁵⁶⁾ has determined that workfare workers are not employees under FLSA. However, the United States Department of Labor's recent guidance indicates that workfare workers are, in most instances, employees within the FLSA definition.⁽⁵⁷⁾

Prevailing and Living Wage Violations. Workfare workers may also be entitled to have their work hours calculated using the "prevailing wage" or "living wage" in the locality in which they work. Some municipalities, counties, states, or public authorities (such as school boards) have enacted prevailing or living wage statutes.

In Brukhman v. Giuliani,⁽⁵⁸⁾ a New York court entered a class-wide preliminary injunction requiring the City defendants to calculate the hours to be worked by all workfare workers using the prevailing rate of wage for regular workers performing similar or comparable work. The Court held that using only the minimum wage to calculate workfare hours violated state constitutional and statutory prevailing wage protections. Plaintiffs also alleged that the challenged practice deprived them of due process and equal protection under law, constituted an unconstitutional taking of their property (the value of the labor) without just compensation, and unjustly enriched the City defendants.

In the earlier case of Church v. Wing,⁽⁵⁹⁾ an AFDC recipient challenged a case closing for refusing to cooperate with her workfare assignment on the basis that the county had not done a prevailing wage determination prior to assigning her to workfare. The Church court held that state law⁽⁶⁰⁾ imposed an absolute mandate on the county to determine and utilize the prevailing wage before making the workfare assignment and annulled the case closing. Following Church, the New York State Department of Social Services directed the counties to use the prevailing wage in making workfare assignments.⁽⁶¹⁾ Unfortunately, the New York State legislature modified Social Services Law § 336-c, one of the two statutes relied upon in Church, by deleting the prevailing wage mandate and replacing it with a restriction on using less that the minimum wage to determine hours.

c. Displacement of Paid Workers

The federal TANF statute provides limited protections against displacement. It proscribes filling vacancies where an employee is on layoff from the same or substantially equivalent job or where the employer has terminated a worker or involuntarily reduced its workforce in order to take workfare workers.⁽⁶²⁾ Displacement claims, however, may exist under both collective bargaining agreements as well as state and/or local laws.

In Melish et al. v. City of New York,⁽⁶³⁾ two unions representing municipal workers claim that New York City is violating state law, which prohibits workfare assignments that displace regular workers. Plaintiffs claim that workfare assignments include painting and carpentry at the Parks Department, work previously done exclusively by unionized workers. The complaint alleges that from 1988 to 1996 the number of unionized painters decreased from 30 to 5 and carpenters from 54 to 22 and that the City has refused to fill vacancies and is instead using workfare workers to do the same work.

Non-litigation means can also be used to challenge displacement. In New Jersey, a union is relying on traditional union remedies and is calling for a state investigation to challenge displacement of workers at in the medical records and central supplies office of the Jersey City Medical Center.⁽⁶⁴⁾ The union contends that fourteen workers will lose their jobs or suffer reduced hours as a result of the increased use of workfare workers.

C. Sanctions for Non-Compliance with Work-Related Requirements

Most legal services and legal aid programs will see workfare and other work requirement issues as these recipients are faced with sanctions for failing to comply with work program rules. For example, the Government Accounting Office has observed that more and more terminations of aid are for failing to meet work requirements.⁽⁶⁵⁾ Sanctions may be quite draconian, resulting in loss of cash assistance and food stamps to the household, and medical assistance for the adult for many months.

Many of these sanctions are likely to be erroneous and can be challenged in administrative hearings and individual state court actions. LSC-restricted programs can use these hearings and court challenges to insure that work programs are operated fairly and so as to insure that recipients who wish to attend school or training, who suffer from a health problem, are needed to care for another sick household member, or who are subject to illegal working conditions are not improperly subjected to a loss of assistance.

A number of the successful challenges to workfare sanctions are instructive. Recipients and their advocates have overturned sanctions for failing out of an education program attended in lieu of workfare⁽⁶⁶⁾ and failing to appear at a workfare appointment when the notice of appointment was never received.⁽⁶⁷⁾ Similarly, workfare workers have successfully argued that they should not be sanctioned for rejecting an assignment which conflicts with their previously approved training or education.⁽⁶⁸⁾ In another case, a state hearing officer lifted a sanction and exempted the recipient for six months so that she could tend to her wheelchair bound daughter.⁽⁶⁹⁾

IV. Other Issues

A. Implementation Challenges

Two cases have challenged general TANF implementation. A pending New Mexico case arises out of a confrontation between the Governor and legislature. After the Governor vetoed state legislation adopted in response to the PRA, he and the welfare agency head implemented a new welfare system through regulations that conflict with existing state law. Members of the state legislature and welfare recipients sued to halt implementation, claiming that the Governor and Secretary violated the separation of powers provision of the state constitution, state welfare law, and their constitutional duty to faithfully execute the law. In a September 10, 1997 bench ruling for plaintiffs the court directed the defendants to operate a welfare system consistent with state law. ⁽⁷⁰⁾

A Louisiana case challenged the state's submission of the state TANF plan to HHS and related actions claiming a violation of the federal TANF 45 day public comment requirement, the state Administrative Procedure Act (APA), and due process. An appellate court upheld the lower court's adverse decision, ruling that the TANF plan was not a "rule" for APA purposes.⁽⁷¹⁾

A few cases have challenged discrete state policies implementing PRA provisions on state APA grounds with some limited success.⁽⁷²⁾

B. Child Exclusion Policies

Before the PRA a number of states had waivers to deny a grant increase to a child conceived by and born to an AFDC recipient. The unfortunate popularity of this policy persists with 21 states reporting such policies in their TANF state plans,⁽⁷³⁾ even though research so far has revealed no difference in birthrates between recipients subject to the exclusion and those not subject to it.⁽⁷⁴⁾ Moreover, welfare families are small and women on welfare have a lower birthrate than American women generally.⁽⁷⁵⁾

Two pending class actions challenge child exclusion policies.⁽⁷⁶⁾ An Indiana state court case includes claims that the policy violates federal constitutional rights to family integrity and privacy, irrationally penalizes children for their parents' behavior in violation of federal and state due process; and violates due process by not having written standards for the provision of vouchers to excluded children.⁽⁷⁷⁾ A New Jersey state court case claims that the policy violates state constitutional guarantees of equal protection and privacy, and that the application of the policy to those who were not adult recipients when they conceived and gave birth violates state law.⁽⁷⁸⁾

C. Child Support Enforcement

Under AFDC, an individual had to cooperate with the state in establishing paternity and seeking child support, but the federal regulation protected those who simply did not have information sought by the state by defining cooperation to include attesting to the lack of information, under penalty of perjury. The PRA retains the cooperation requirement, but requires that states determine whether a person is cooperating in good faith by providing the state with the name of the absent parent and other information the state may require, subject to good cause exceptions.⁽⁷⁹⁾

Recently some states have sanctioned mothers for not providing specific information about the absent parent, such as the name and social security number, even though the custodial parent did not have or could not obtain the information. Litigation in Massachusetts has forced the state to retreat from this requirement. In August 1996 a state court preliminarily enjoined the state policy, finding that the policy likely violates state statute, discriminates on the basis of sex in violation of the State Equal Rights Amendment, and discriminates against non-marital children in violation of state and federal equal protection guarantees.⁽⁸⁰⁾ Recent state regulations bar a sanction when the individual has made a good faith effort to get the information. In 1996 a federal court in Virginia preliminarily ruled for plaintiffs, finding that the policy likely violated the then applicable federal AFDC regulation.⁽⁸¹⁾ The state then got a federal waiver and adopted limited exceptions. Plaintiffs' claims that the revised policy discriminates against nonmarital children and violates equal protection are pending.

In April 1997 a unanimous U.S. Supreme Court ruled that mothers seeking child support enforcement services under IV-D of the Social Security Act cannot sue under 42 U.S.C. § 1983 to require the state to substantially comply with IV-D requirements. While the Court remanded for a determination of whether plaintiffs had alleged violations of specific provisions giving rise to individual rights, its decision closed the door to broad-based challenges to child support enforcement systems.⁽⁸²⁾

D. Child Support Pass-Through

The PRA eliminated the AFDC $50 child support pass-through and disregard requirement, and left the matter to the states. Some have abandoned or limited the pass-through, and at least three lawsuits have resulted. A Pennsylvania state court initially granted preliminary relief in a case claiming that state law mandates continuation of the pass-through and that the state failed to follow rulemaking requirements in ending the pass-through, but subsequently ruled adversely.⁽⁸³⁾ A Louisiana state court lawsuit which included claims that emergency rulemaking to end the pass-through violated the state Administrative Procedure Act and due process was unsuccessful.⁽⁸⁴⁾ A Kentucky case raising rulemaking, due process, and breach of contract claims was settled with the state agreeing to pay the share of the pass-through to class members for six months.⁽⁸⁵⁾

E. Time-Limited Benefits

There is now a maximum 60 month lifetime limit on federal TANF benefits, with states allowed to grant a hardship exemption to up to 20% of their caseloads.⁽⁸⁶⁾ State time limit policies vary widely. Although it is still too soon to see the effects of time limits on families who are unable to find or maintain employment,⁽⁸⁷⁾ according to one recent study about 40% of families currently receiving welfare are expected to reach the federal five-year time limit. Those most likely to be affected by time limits are families whose mothers are young, without a high school diploma, and with preschool children when welfare receipt begins.⁽⁸⁸⁾ Formulation of litigation strategies to protect families who will be harmed by time limits remains an ongoing challenge for lawyers representing welfare recipients.⁽⁸⁹⁾

Recent successful California litigation has limited the scope of a General Relief time limit. Under a county policy disabled GR recipients who were not SSI recipients were treated as "employable with limitations" and subject to a 3 month limit, despite evidence of inability to work. Plaintiffs claimed the policy violated the Americans With Disabilities Act, federal and state equal protection and due process guarantees, and state law. Following denial of temporary relief, the parties negotiated and the court approved a settlement which included exemption from the time limit and related requirements, such as job search, for those with medical verification of inability to work; exclusion of months of disability from countable months for time limit purposes; class notification; and retroactive benefits for some class members.⁽⁹⁰⁾

F. Drug Testing and Screening

The PRA allows states to impose drug and alcohol screening, testing and treatment requirements on TANF participants. While it appears that so far only 7 states have testing or screening requirements in some circumstances,⁽⁹¹⁾ this is an area to watch since it raises privacy and other concerns.

In a case with ramifications for drug testing requirements for welfare recipients, the U.S. Supreme Court struck down a statute requiring urinalysis drug testing for candidates for public office. The Court ruled that the Fourth Amendment to the U.S. Constitution bars suspicionless searches unless there is "special need" and that the state had not shown such need. The Court noted that the state had not shown a history of drug use among public officials.⁽⁹²⁾ A California federal court enjoined use of a county drug screening questionnaire for General Assistance applicants as contrary to Americans With Disabilities Act regulations. The test, which incorrectly classified many people, forced disclosure of a person's status as a past or recovering substance abuser and burdened protected individuals in a manner not necessary to the GA program.⁽⁹³⁾

G. Procedural Fairness and Due Process

Lawlessness, arbitrariness, and indeed vindictiveness have too often marred welfare administration. In its landmark decision in Goldberg v. Kelly,⁽⁹⁴⁾ an early Welfare Law Center case, the U.S. Supreme Court held that advance notice and opportunity for a hearing had to be provided before welfare benefits could be terminated. The Court found that state law defining who was eligible for the benefits created a statutory entitlement for eligible claimants, and that this entitlement was a "property interest" protected by the Fourteenth Amendment. This decision led to significant improvements in welfare administration.

Arbitrary administration continued to be a problem, however, and now threatens to grow. During the 1970's and 1980's, pressure to reduce improper payments prompted adoption of harsh verification practices that led to denials to millions of eligible families.⁽⁹⁵⁾ These pressures continue today, combined with an increasing emphasis on work requirements with far more sanctions.

In addition to work requirements, at least two other aspects of the PRA and its implementation by the states encourage arbitrariness:

1. "No Entitlement."

The federal statute provides that it creates no entitlement, and about half of the states have made such assertions in their own law.⁽⁹⁶⁾ Nonetheless, most states are continuing to provide fair hearings as they did before. Wisconsin, however, is turning administration over to local contractors and will provide only a limited right of appeal to the state agency. Michigan plans to allow immediate termination followed by reinstatement upon request for a hearing. Vermont's new policy of implementing vendor payments before providing an opportunity for a hearing is being challenged, and a federal magistrate has found jurisdiction to hear the due process claim.⁽⁹⁷⁾

The Supreme Court has made clear that due process rights depend upon the nature of the interest created by the statute and cannot be overcome by simply stating that recipients have "no entitlement."⁽⁹⁸⁾ In a recent 2-1 decision the District of Columbia Circuit held that families seeking emergency shelter do not have a property interest for due process purposes. The court concluded that while statutory language providing that there is "no entitlement" to shelter does not itself preclude a finding of a property interest, eligible homeless families do not have an expectation of shelter sufficient to create a property interest for due process purposes even though there are objective eligibility criteria for homeless families seeking shelter. The Court relied on the fact that there is not enough space for all eligible families and the unfettered discretion granted to administrators to determine who gets in. Judge Wald in dissent argued that a property interest can be found in the City's use of a waiting list, and that the City could not deny shelter to the family at the top of the list without some form of procedural due process.⁽⁹⁹⁾

2. Devolution.

"Devolution" of responsibility for setting standards and making decisions is being shifted from the federal level to the state, then often to a county or private organization, and then to an individual worker. Anecdotal reports indicate that this has led some workers to feel free to create their own requirements. In a rural New England area, for example, a privatized job search supervisor decided to require a recipient with no child care or transportation to spread out job search visits over different days rather than allow them to be done in one day.

Such abuses should be subject to legal challenge, but as always the problem of resources to establish patterns and practices and legal services restrictions (discussed below) will prevent many cases seeking systemic reform from being filed. One approach will be to have community based and restricted legal services programs provide individual representation, obtaining relief for as many individuals as possible and documenting the pattern or practice, with unrestricted counsel then located who can bring a class action.

As electronic benefit payment is introduced in state after state, the many issues it raises, such as error resolution and continuation of due process rights, need to be addressed. While litigation of such issues is possible, "consumer-friendly" system design at the outset is far better. For detailed suggestions, order the Welfare Law Center's detailed 1995 guide, Using a Plastic Card to Access Public Benefits: The Advocates' Guide to EBT.⁽¹⁰⁰⁾

Privatization of the delivery of welfare services, and indeed of eligibility determination itself as has now been implemented in Wisconsin, raises a host of new issues likely to be resolved by the courts in future years. In June the Supreme Court held that guards in a privatized prison did not have the qualified immunity protection that government employees enjoyed.⁽¹⁰¹⁾ In July the Attorney General of Minnesota wrote:

... the problem in this area is that the risk of liability is enormous, but few, if any, of the immunity doctrines which protect state and local government and their employees from the risk of retroactive financial liability can be extended to private contractors. Moreover, since mistaken eligibility determinations are typically challenged as civil rights violations under 42 U.S.C. §1983, the state may be held accountable for the mistakes of the private vendors....⁽¹⁰²⁾

And in October a Washington law firm sponsored a workshop titled "Potential Legal Surprises Facing Providers Participating in Welfare Privatization" to discuss "constitutional questions and liability, immunity, government actor, and government contractor issues."

3. Other Due Process Issues.

Due process notice claims still have potency. Past court holdings that due process requires informative notice will undoubtedly be invoked in the years to come.⁽¹⁰³⁾ In 1997, a state court temporarily restrained reductions in benefits to persons in subsidized housing during the transition from AFDC to TANF on the ground that the notices sent did not give individualized information and information about appeal rights.⁽¹⁰⁴⁾ Another due process claim raised in litigation this year challenges the termination of benefits for failing to meet a new requirement of citizenship has been filed on behalf of legal immigrants who claim they have not been given a fair opportunity to establish their eligibility because their applications for citizenship are still pending.⁽¹⁰⁵⁾

V. Developing Resources for Welfare Litigation

Legal counseling and representation on welfare matters will be more critical than ever in the near future. Fortunately, federally funded legal services programs are not barred from providing most of the counseling and representation needed. They can enforce statutes and regulations and challenge informal policies that were not adopted after full notice and comment proceedings.⁽¹⁰⁶⁾ They can represent community organizations in litigation or in seeking to improve agency practices. For legal services programs, the problem is not whether there is critical work they can perform, but how to use their limited resources most effectively.

Federal restrictions will prevent those programs from challenges to a statute or formally-promulgated regulation or from class action litigation to stop an unlawful or unconstitutional pattern and practice. Clients with those needs must be referred elsewhere. In some states legal services offices that do not receive LSC funding are providing that representation. In many other states those resources are not available. Indeed, the Welfare Law Center has been assisting local counsel in two Mid-western states where the only public interest lawyers available to handle any "welfare reform" challenges work in small civil liberties offices with very full agendas.

To help assure that needed representation is provided, the Welfare Law Center inaugurated "Project Fair Play" in 1996. The Center has moved on two tracks:

1. The Center has expanded participation in welfare class action litigation in collaboration with others. In New York City it organized a collaborative workfare project with the National Employment Law Project and the Legal Aid Society. This project has brought some of the major class actions described in this article, including Davila v. Hammons, Brukhman v. Giuliani, and Capers v. Giuliani.⁽¹⁰⁷⁾ The Center is also co-counsel in Rhode Island and New York cases challenging discrimination against new state residents. ⁽¹⁰⁸⁾ Around the country, the Center has worked with providers such as the National Immigration Law Center, the ACLU, NOW LDEF, NHeLP, and local offices, to plan and conduct litigation. The Center is available to participate in welfare litigation with advocates in other states, especially on issues involving welfare work issues and discrimination against new state residents. Contact the Center for further information.

2. The Center has joined others in reaching out to the private bar to educate it about the need for pro bono assistance on welfare reform matters. Center staff have made presentations at the last two ABA Pro Bono conferences and at meetings of the American College of Trial Lawyers committee on pro bono. The Center has also for the first time brought major law firms in as pro bono co-counsel in classic welfare litigation, and now Davis Polk & Wardwell, Dewey Ballantine, and Milbank Tweed Hadley & McCloy have co-counseled with the Center. Private firms are also co-counsel in a number of the cases discussed in this article.

Programs needing help from major firms on impact welfare cases are urged to make two contacts: (a) the Litigation Assistance Partnership Project (LAPP), co-sponsored by the ABA Section on Litigation and NLADA, for matches with large law firms across the country,⁽¹⁰⁹⁾ and (b) the Welfare Law Center, for help in working with private firms on welfare matters.

Pro bono counsel can also assist on many matters that do not require a major time commitment. Firms can develop expertise in certain areas and then accept referrals of clients for fair hearing representation. Transactional lawyers can assist individual clients in the states where a "personal responsibility" or "self-sufficiency" agreement⁽¹¹⁰⁾ is developed with the welfare department, and then continue to work with the individual to assure that the needed services are provided, a model being tested in Tennessee. The Center welcomes information about successful models that can be shared with others.

VI. Conclusion

As this article suggests, despite elimination of federal AFDC protections, litigation continues to be a critical tool to check unfair state welfare practices. In the early months of TANF implementation, litigation has successfully attacked a range of policies, with notable success in the areas of discrimination against new state residents and abusive workfare policies. The Welfare Law Center, together with other public interest lawyers, is working to assure that crucial litigation can be brought and to increase private firm involvement. LSC-restricted programs can provide representation to assure that welfare laws are correctly applied and to improve agency practices and are important partners in the effort to secure fair treatment for welfare recipients.

ENDNOTES

1. Pub. L. No. 104-193, 110 Stat. 125. Title I of the PRA replaces the AFDC program with the Temporary Assistance for Needy Families (TANF) block grant.
2. Litigation developments and trends are reported in the Welfare Law Center's monthly Welfare Bulletin, and its bi-monthly newsletter, Welfare News (combined subscription is $40/yr.; $60/yr. for libraries).
3. 394 U.S. 618 (1969). Under Shapiro and its progeny, a state statute is subject to strict scrutiny when it "[1] actually deters travel. . . [2] when impeding travel is its primary objective . . . or [3] when it uses any classification which serves to penalize the exercise of that right." Attorney General of the State of New York v. Lopez, 476 U.S. 898, 903 (1986).
4. According to the National Governors' Association, the following jurisdictions have restricted benefits to new residents: District of Columbia, Florida, Georgia, Illinois, Maryland, Minnesota, New Hampshire, New York, North Dakota, Pennsylvania, Rhode Island, Vermont, Washington, and Wisconsin. National Governors' Association Matrix and Summary of Selected Elements of State Plans for Temporary Assistance for Needy Families (TANF) as of August 12, 1997 (hereinafter, NGA TANF Summary), available on NGA's web page: http://www.nga.org. According to information gathered by the Welfare Law Center, California, Connecticut, Indiana, Massachusetts and New Jersey have also adopted restrictive policies regarding new residents.
5. See Russell L. Hanson and John T. Hartman, "Do Welfare Magnets Attract?". Univ. of Wisconsin, Institute for Research on Poverty, Discussion Paper No. 1028-94, February 1994; William Frey, Yu Xie, Kao-Lee Liaw, and Marsha J. Carlson, "Interstate Migration of the U.S. Poverty Population: Immigration 'Pushes' and Welfare Manet 'Pulls'", paper presented at the Poverty Research Seminar Series, Washington, D.C. , May 4, 1995. See generally Center on Social Welfare Policy and Law, Welfare Myths: Fact or Fiction, 25-26 (1996).
6. Such statutes allow the states to argue that they are not penalizing exercise of the right to travel because new residents are no worse off than they would have been in their former states. Setting aside the effect of cost of living differences, this argument is also wrong because it distorts the Supreme Court's right to travel penalty analysis, which focuses on whether new residents are treated less favorably than long-term residents, not on whether they are treated less favorably than they would have been in their former states. See Zobel v. Williams, 457 U.S. 55 (1982) (Alaska law that gave higher oil revenue payments to long term residents than to short term residents unconstitutional even though the new residents would have received no such payments in their former states).
7. Rhode Island's statute has been challenged in Westenfelder v. Ferguson, Civ. Action No. 97-478L (D.R.I. Complaint filed August 21, 1997). A preliminary injunction motion is pending in that matter.
8. As reported by advocates, Massachusetts and Wisconsin have adopted sixty day bars on aid to new residents. Minnesota has a thirty day bar.
9. As reported by advocates, Connecticut, Massachusetts, New York, and Washington all have residency statutes for immigrants.
10. See Green v. Anderson, 26 F.3rd 95 (9th Cir. 1994), affirming 811 F. Supp. 516 (E.D. Cal. 1993), vacated on other grounds 115 S.Ct. 1059 (1995); Maldonado v. Houston,Civil Action No. 97-4155 (E.D. Pa. October 1997); Roe v. Anderson, 966 F.Supp. 977 (E.D. Ca. 1997); Mitchell v. Steffen, 487 N.W.2d 896 (Minn. 1992); Brown v. Wing __ N.Y.S.2d __, WL392631 (N.Y. App. Div. July 3, 1997) affirming 649 N.Y.S.2d 988 (N.Y. Sup. 1996); Aumick v. Bane, 612 N.Y.S.2d 766 (N.Y. Sup.1994). But see V.C. v. Whitburn, Case No. 94-C-1028 (E.D. Wisc. Sept. 30, 1997). The V.C. court declined to issue a preliminary injunction in a two-page unreasoned order. The case involves a four-county AFDC demonstration project that was defunct by the time the court issued its order.
11. Roe v. Anderson, 966 F.Supp. 977 (E.D. Ca. 1997).
12. Brown v. Wing __ N.Y.S.2d __, WL392631 (N.Y. App. Div. July 3, 1997) affirming 649 N.Y.S.2d 988 (N.Y. Sup. 1996).
13. Maldonado v. Houston, Civil Action No. 97-4155 (E.D. Pa. October 1997)(slip op.).
14. Id., slip opinion at 51 citing 394 U.S. at 637-38.
15. New Jersey's multi-tier benefit system for new residents has also been challenged, but no decision has yet been issued in that case. Sanchez v. Department of Human Services, Docket No. A-000466-97T5 (N.J. Superior Ct. App. Div., Complaint filed September 15, 1997).
16. 485 N.W.2d 21 (Wis. 1992).
17. Civil Action No. 94-1634 (W.D. Pa. July 5, 1995). After extensive discovery, plaintiffs have moved for summary judgment and are awaiting a decision.
18. 394 U.S. at 627.
19. See, e.g., Graham v. Richardson, 403 U.S. 365 (1971).
20. The term "workfare" does not appear in the federal statute, which instead refers both to "work experience" and "community service programs." 42 U.S.C. § 602(d). The term is used here to refer generically to any program which requires welfare recipients to perform unpaid work in order to remain eligible for their grants.
21. For background on New York City's workfare program, see the Timothy J. Casey, A Workfare Primer, Welfare News, 7 (Welfare Law Center, September 1997).
22. In Georgia, a recipient who is the only caretaker of a severely disabled daughter who requires constant care including a GI tube for feeding had to press her case in a fair hearing in order to receive an exemption. Even after doing so, she only received a six month exemption. Docket No. 97-11, 675-23-WLS (Georgia Office of Adm. Hearings July 18, 1997).
23. See Joe Sexton, "Privacy and Pride Are Submerged at Busy Workfare Evaluation Site, New York Times, October 13, 1997, A1.
24. Mitchell v. Barrios-Paoli, Index No. 400896/97 (N.Y. Sup. Ct. N.Y. Co. class action complaint dated September 24, 1997).
25. Fridman v. City of New York, 97 Civ. 6099 (S.D.N.Y. 1997).
26. Davila v. Hammons, Index No. 407163/96, (N.Y. Sup. Ct. N.Y. Co. order dated April 21, 1997).
27. See Bryan v. Hammons, Index No. 403425/96 (N.Y. Sup. Ct. N.Y. Co. July 23, 1997); Hesthag v. Hammons, Index No. 403426/96 (N.Y. Sup. Ct. N.Y. Co. November 14, 1997). But see Ortiz v. Hammons, Index No. 406095/96 (N.Y. Sup. Ct. N.Y. Co. Feb. 18, 1997).
28. Department of Labor Guidance, How Workplace Laws Apply to Welfare Recipients, BNA Daily Labor Reporter, No. 103, May 29, 1997, p. E-3. Referred to hereinafter as the DOL Guide or Guide.
29. Fair Labor Standards Act, 29 U.S.C. §201 et seq.
30. Occupational Safety and Health Act, 29 U.S.C. §651 et seq.
31. The Guide does not state an opinion about the status of workfare workers to organize under federal labor law (the National Labor Relations Act), or to claim workers' compensation under state employment laws, or other legal protections that fall outside DOL or EEOC jurisdiction.
32. DOL Guide, BNA Daily Labor Reporter, No. 103 at E-3.
33. Another helpful resource is the National Employment Law Project's Employment Rights of Workfare Participants and Displaced Workers, April 1996. The publication is a detailed summery of the application of employment and labor laws to workfare programs. Contact NELP at 212-285-3025 for more information.
34. See discussion of litigation, infra at pp. 16 et seq..
35. DOL Guide at points 6 & 7, BNA Daily Labor Reporter, No. 103 at E-4. In order to count the recipient's Food Stamps, however, the state must operate an official Food Stamp workfare\wage supplementation program or, as now authorized by the U.S. Department of Agriculture, they may apply in an expedited fashion to operate a "Simplified Food Stamp Program" created under the federal welfare law to coordinate TANF and Food Stamp requirements.
36. A workfare worker may be entitled to have her/his hours calculated at the "prevailing" or "living" wage instead of the minimum wage. Seeinfra at pp.19-20.
37. Id. at point 12, E-5.
38. Age Discrimination in Employment Act, 29 U.S.C. §621 et seq.
39. Rehabilitation Act, 29 U.S.C.§ 794.
40. Americans With Disabilities Act, 42 U.S.C.§ 12101 et seq.
41. Title VI, 42 U.S.C. §2000d.
42. Memorandum 2 from Guy Molyneux and Jeffrey Garrin, Peter D. Hart Research Associates, Inc., Washington, DC to AFL-CIO (June 10, 1997) (regarding minimum wage coverage for workfare recipients)..
43. Id.
44. Id. at question w-2.
45. For a fuller discussion of potential legal challenges see Center on Social Welfare Policy and Law & National Employment Law Project, Potential Litigation Under the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (Pub. L. No. 104-193) (December 1996).
46. Index No. 402894/97 ( N.Y. Sup. Ct. N.Y. Co., complaint filed July 14, 1997).
47. New York Labor Law § 27-a (McKinney, 1992).
48. 29 U.S.C. § 651 et seq.
49. New York Social Services Law § 330(5) (McKinney, 1986).
50. Stone & Tricoche v. Sweeney, Index No. 402891/97 (N.Y. Sup. Ct. N.Y. Co., Petition filed July 1997).
51. State ex rel. Patterson v. Industrial Comm. Of Ohio, 77 Ohio St. 201, 672 N.E. 2d 1008 (1996).
52. 42 U.S.C. § 607(c)(1)(A).
53. 29 U.S.C. § 201 et seq.
54. 116 S.C. 1114 (1996).
55. See, e.g., Wilson-Jones v. Caviness, 107 F.3d 358 (6th Cir. 1996); Rehberg v. Dep't of Public Safety, 946 F. Supp. 741 (S.D. Iowa 1996).
56. Johns v. Stewart, 57 F.3d 1545 (10th Cir. 1995).
57. See discussion at p. 12, supra.
58. ___ N.Y.S. 2d ___, 1997 WL 570781 (N.Y. Sup. Ct. 1997).
59. Church v. Wing, 229 A.D.2d 1019, 645 N.Y.S 2d 356 (4th Dept. 1996).
60. New York Social Services Law § 336-c(c)(2) (McKinney, 1992).
61. New York State Dept. Of Social Services, Fair Hearing # 2560197J, December 31, 1996.
62. 42 U.S.C. § 607(f)(2).
63. Index No. ____ (N.Y. Sup. Ct., N.Y. Co., complaint filed May 1997).
64. See http://www.afscme.org/afscme/press/012797_1.htm
65. Welfare Reform - State's Early Experiences with Benefit Terminations, GAO/HEHS-97-74 (Government Accounting Office, May 1997).
66. Tormos v. Hammons, ___ A.D. 2d ___, 658 N.Y.S.2d 272 (1st Dept. 1997).
67. Kassler v. Wing, ___ A.D. 2d ___, 658 N.Y.S. 2d 94 (2nd Dept. 1997).
68. Hestag v. Hammons, Index No. 403426/96 (N.Y. Sup. Ct., Nov. 14, 1996) and Bryan v. Hammons, ___ N.Y.S.2d ___, 1997 WL 556221 (N.Y. Sup. Ct. 1997).
69. Docket No. 97-11, 675-23-WLS (Georgia Off. Of State Admin. Hearings, July 18, 1997).
70. State of New Mexico ex rel. Taylor v. Johnson, No. 24547 (N.M. Sup. Ct., petition for writ of mandamus filed July 21, 1997). As this article was written, plaintiffs' counsel reported outstanding compliance issues and the possible need for further relief. For pre-TANF welfare cases involving separation of powers claims, see Center on Social Welfare Policy and Law, Welfare Cutback Litigation, 1991-1994 (July 1994).
71. Cressey v. Foster, 694 So. 2d 1016 (La. App. 1 Cir. 1997). The appellate decision noted that the lower court had found that actions to formulate program criteria were justified under emergency rulemaking procedures. The appellate court did not address this issue on appeal since it found that the state had actually published only one emergency rule regarding the child-support pass-through. The court upheld that emergency rule. Plaintiffs' counsel reported that the litigation did result in some favorable policy changes.
72. Melgar v. California Dept of Social Servs., No. 96AS05728 (Ca. Super Ct., Sacramento Cy., Oct. 31, 1996)(denial of Food Stamps to legal immigrant applicants done by All County Letter; implementation barred until state compliance with APA). Gainer v. Miller, No. 96-CI-0024 (Rowan Cir. Ct., Ky. Jan. 14, 1997)(Settlement and order)(rulemaking and other challenges to elimination of child-support pass-through; temporary partial restoration resulted). But see Cressey v. Foster, supra, note 71 (emergency rule ending child support pass-through upheld). Success Against All Odds v. Dept. of Public Welfare of Pa, ___ A.2d ___, 1997 WL 473122 (Pa. Cmwlth., Aug. 20, 1997) (termination of child support pass-through; rulemaking requirements and substantive law not violated). For pre-TANF welfare cases involving APA claims, see Center on Social Welfare Policy and Law, Welfare Cutback Litigation, 1991-1994 (July 1994).
73. As of August 12, 1997 according to the NGA TANF Summary, supra note 4.
74. Carolyn Tuturro et al., Arkansas Welfare Waiver Demonstration Project, Final Report (June 15, 1997); N.J. Dept. of Social Services, Family Development Program Evaluation Project Executive Summary of Project Deliverables (Sept. 1997). In New Jersey the birth rate declined for both the experimental and control groups. Both reports question the use of random experimental design in this research.
75. Center on Social Welfare Policy and Law, Welfare Myths: Fact or Fiction?, 19-20 (1996).
76. The Third Circuit previously upheld HHS's waiver for the New Jersey policy and rejected federal equal protection and due process challenges to the policy. C.K. v. Shalala, 92 F. 3d 171 (3d Cir. 1996), CH # 49,451.
77. N.B. v. Davis, No. 49D139705 (Ind. Super. Ct., Marion Cy.)(complaint filed May 22, 1997).
78. Sojourner A. v. New Jersey Dept. of Human Services, Docket No. ESX-L-10171-97 (N.J. Super. Ct., Law Div., Essex Cy.)(complaint filed Sept. 1997).
79. 42 U.S.C. § 654 (29).
80. Doe v. Gallant, CV No. 96-1307-D (Mass. Super. Ct., Aug. 9, 1996), CH # 51,056.
81. Smyth v. Carter, 168 F.R.D. 28 (W.D.Va. 1996).
82. Blessing v. Freestone, 117 S. Ct. 1353 (1997).
83. Success Against All Odds v. Dept. of Public Welfare of Pa., supra note 72. An appeal is pending..
84. Cressey v. Foster, supra note 71.
85. Gainer v. Miller, supra note 72
86. 42 U.S.C. § 608 (a)(7).
87. The effects of state decisions in recent years to end or time limit General Assistance for employable individuals are instructive. Most recipients faced serious personal and structural barriers to employment, a large majority did not find employment, and many suffered homelessness, hunger, poor health, and increased social isolation. Center on Social Welfare Policy and Law, Jobless, Penniless, Often Homeless: State General Assistance Cuts Leaves "Employables" Struggling for Survival (Feb. 1994).
88. Duncan, Greg J., Harris, K.M., Boisjoly, Johanne, Time Limits and Welfare Reform: New Estimates of the Number and Characteristics of Affected Families (April 22, 1997). Available on the web at http://www.spc.uchicago.edu/-PovertyCenter/limit21.html.
89. For past litigation challenging state General Assistance time limits, see Welfare Law Center, Docket of Selected Recent Welfare and Related Cases (Feb. 1997)(available to those representing or supporting welfare recipients in litigation).
90. Bradford v. County of San Diego, No. 97-CV-1024-JM (S.D.Cal., July 29, 1997).
91. As of August 12, 1997, according to the NGA TANF Summary, supra note 4 .
92. Chandler v. Miller, 117 S.Ct. 1295 (1997). For prior relevant cases see Welfare News, Welfare Law Center, pp. 5-6 (Dec. 1996).
93. Hunsaker v. County of Contra Costa, No. C-95-1082 MMC (N.D. Cal., July 31, 1997).
94. 397 U.S. 254 (1970).
95. See, e.g., Timothy J. Casey and Mary R. Mannix, Quality Control in Public Assistance: Victimizing the Poor Through One-sided Accountability, 22 Clearinghouse Review 1381 (April 1989).
96. Preliminary data gathered and provided by Center for Law and Social Policy.
97. Gregory v. Kitchel, File No. 2:97-CV-135 (D. Vt., July 2, 1997).
98. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985). See generally Nancy Morawetz, A Due Process Primer: Litigating Government Benefit Cases in the Block Grant Era, 30 Clearinghouse Review 97 (June 1996).
99. Washington Legal Clinic for the Homeless v. Barry, 107 F. 3d 32 (D.C. Cir. 1997), rehearing denied (June 12, 1997).
100. Available for $25 ($40 libraries, govt. agencies, private contractors) plus $2 S/H.
101. Richardson v. McKnight, 117 S. Ct. 2100 (1997).
102. Open letter from Hubert. H. Humphrey III, Attorney General, State of Minnesota, July 1, 1997, p. 1.
103. See, e.g. Ortiz v. Eichler, 794 F.2d 839 (3d. Cir., 1986).
104. Malave v. Ferguson, PC 97-3364 (Super. Ct., R. I., July 16, 1997).
105. Shvartsman v. Callahan, No. 97-C5229 (N.D. Ill., July 24, 1997) (complaint).
106. For a full discussion of permitted activities, see Alan Houseman and Linda Perle, CLASP Guide to The Welfare Reform Regulation, Part 1639 (Center for Law and Social Policy, October 1997).
107. These cases are discussed supra in sections III. A. and B. 2. For a description of the New York City workfare project, see Welfare Law Center, Welfare News, p. 8 (Feb. 1997).
108. Westenfelder v. Ferguson, supra, note 7 and Brown v. Wing, supra, note 10.
109. Contact Guy Lescault, LAPP Coordinator, at NLADA, 202-452-0620, ext. 18.
110. For examples of contracts that appear to allow greater individual flexibility, order Sample Personal Responsibility Agreements and Instructions from Five States from the Welfare Law Center, $20 plus $2 S/H.