Balkinization: What is a Work Requirement?

What is a Work Requirement?

Guest Blogger

David Super

Media reports suggest that the forthcoming Trump budget will extract large savings from anti-poverty programs by imposing tougher “work requirements” on recipients. To many, this is among the most acceptable kinds of cuts in programs for low-income people. Numerous academics and politicians who regard themselves as sympathetic to the economically disadvantaged have nonetheless supported or even proposed broadening work rules. Work requirements poll well, with many less-educated workers particularly enthusiastic, responding to images of idle people living comfortably off if their hard-earned tax dollars.

Yet a basic confusion exists at the heart of these debates: what is a “work requirement”? The range of program rules bearing that moniker is vast, with fundamental differences in structure and purpose as well as administration. Increasingly, the term is being used for policies that have nothing directly to do with combatting idleness but rather serve as an attractive cover for arbitrary time limits, bureaucratic churn, and other policies that the public regards far less well.

A case in point is the “work requirement” added to the Supplemental Nutrition Assistance Program (SNAP, formerly food stamps) in the 1996 welfare law, codified at 7 U.S.C. § 2015(o). Under this provision, many childless adults between the ages of 18 and 50 become ineligible for SNAP after three months if they do not have at least half-time employment. Its sponsors justified it by saying that those unable to find private employment could do workfare instead, but the law does nothing to require states to provide workfare slots to applicants or recipients that want them.

Repeated proposals to limit the disqualification to those that refused private employment or turned down workfare slots have gone nowhere in Congress. Congress did eventually agree to offer a financial bonus to states that would commit themselves to offering a workfare or other qualifying employment and training slot to every recipient reaching the three-month time limit; only a handful of states have ever been willing to do so. As a result, over a million desperately needy people who, as far as anybody knew, were perfectly willing to work nonetheless lost basic food assistance because they could not find jobs within three months.

One concession the law made to the difficulty low-skilled workers have finding employment was to allow states to seek waivers of the time limit in areas with “insufficient jobs”. The main definition of this term came to be areas the U.S. Department of Labor declared to be “Labor Surplus Areas” based on having an unemployment rate substantially above the national average for a twenty-four-month period (or areas that met the LSA criteria but for technical reasons did not appear on DOL’s list). At one time, all but one of the states had waivers for their high-unemployment areas.

Over the past few years, however, right-wing groups such as ALEC have invoked the rhetoric of “tougher work requirements” to persuade several states to pass laws prohibiting their welfare departments from seeking waivers. In these states, low-skilled, destitute people who are willing to work but cannot find jobs within three months in economically depressed areas are abruptly terminated from food assistance. For many, SNAP was the only program, from any level of government, available to them. (In states that expanded Medicaid under the Affordable Care Act, they would still qualify for health insurance, although most of the states that have dropped their waivers of the three-month time limit also have refused to expand Medicaid.) House Republicans have repeatedly proposed drastically curtailing or eliminating waivers of the SNAP “work requirement”.

Thus, many “work requirements” are nothing of the kind; instead, they are disqualifications for the unemployed. Denying aid to someone who cannot find a job is sadly ironic in a means-tested program: for many, if they could find a job they would not seek or qualify for assistance. Because SNAP benefits are limited to food purchases – and because the elimination of paper food stamps has dramatically reduced the ability to “traffic” benefits to meet other needs – SNAP recipients retain strong incentives to find employment. The overwhelming majority of SNAP recipients are either working, unable to work due to age or infirmity, or experiencing a relatively brief hiatus between jobs. Similarly, recipients of Medicaid, housing assistance, and other means-tested benefit programs need jobs to pay for their other living expenses. (People cannot meet all, or even most, of their living costs by combining receipt of these various programs: although concurrent receipt of SNAP and Medicaid is common, housing assistance and child care subsidy programs have always been funded at levels allowing only a small minority of eligible claimants to be served, regardless of need.)

A close cousin of the “work requirement” that actually is a time limit or a bar to the unemployed is the “work requirement” that is actually an excuse for caseload reduction through accelerated bureaucratic churn. Applicants and recipients are ordered to attend a seemingly endless series of meetings and orientations. Sooner or later, one of the letters summoning recipients get delayed in the mails – or in the agency’s own mail room – or the recipient cannot scrape up transit fare or already has a job interview scheduled for the same time as the appointment. The agency then terminates the recipient from benefits, politically immune from allegations of bureaucratic churn because it is just enforcing “work requirements”. Theoretically, these recipients could win reinstatement through fair hearings, but with deep cuts in legal services programs representation in public benefits matters is now effectively unavailable in much of the country.

The reason why we are seeing so much of these kinds of disingenuous “work requirements” is because the primary objective of conservative human services policy has fundamentally changed from the behavioral to the fiscal. Genuine “work requirements” – programs that seek to put recipients to work and sanction only those that refuse – are actually quite costly and difficult to administer. Training and supervision are expensive, space for workfare participants is scarce, and the number of tasks that can readily be done by unskilled workers falls far short of the number of recipients. Child care costs alone make large work programs cost-prohibitive for parents with children – the only work-ready adults eligible for many major benefit programs. And because beneficiaries are so impoverished, compliance rates are high for programs that sincerely seek participation. Thus, no genuine work requirement will ever pay for a tax cut; more likely, their implementation will require additional tax dollars. True work requirements therefore lack serious support on the Left or the Right.

To be sure, even pseudonymous work requirements can have the effect of encouraging work by weakening the safety net for those that cannot find employment. But the same is true for any cut in means-tested programs: time limits and eligibility churn have nothing special to offer in this regard, and if anything are relatively inefficient and ill-targeted. For the most part, this country has concluded that the human cost of eliminating anti-poverty programs is too great to justify the incremental increase in work effort that that elimination would likely produce.

So if President Trump’s budget proposal, or legislation moving in Congress, includes “tougher work requirements” ask just what the sponsors mean by that term before coming to any conclusion. If the administering agencies are not required to offer a work slot before terminating someone’s benefits, or if the program’s budget does not include sufficient funds to create enough work slots for all of those that will be subject to the requirement, the proposal is merely a ploy for terminating benefits to concededly needy people without regard to their willingness to work.

David Super is Professor of Law at Georgetown Law Center. You can reach him by e-mail at David.Super at law.georgetown.edu

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