ACLU Wary of Wisconsin Works

October 30, 1997

On September 1, 1997, Wisconsin embarked on one of the nation's most radical and risky welfare reform experiments. Known as Wisconsin Works (or W-2), this program replaces the Aid to Families with Dependent Children program with a mandatory and time-limited workfare program for all poor families considered able to work. Its implications for civil liberties are great.

The Program

W-2 is administered at the state level by the Wisconsin Department of Workforce Development. Most counties will administer the W-2 program locally, with the notable exception of Milwaukee County. In Milwaukee County five different private agencies will administer the program in six service regions.

Wisconsin Works seeks to fit eligible participants into four levels of employment options. Participants will meet with an "employment planner" to determine which of the following categories are most appropriate. The categories are:

• Unsubsidized employment,
• Subsidized trial employment,
• Paid and unpaid community service jobs,
• Transition places reserved for those unable to perform independent, self-sustaining work.

W-2 participants must accept one of these work options in order to receive assistance, with cash assistance going to workers in the community service and transition options. Wisconsin Works combines work with food stamps, medical assistance, transportation, child care and job support for most participants.

The Puzzle

No one knows for sure how the former AFDC population will sort out into different job categories. No one knows for sure how many otherwise eligible families will simply drop out of the public assistance system. Welfare caseloads have dropped in Wisconsin and other states in the last year, but it is unclear whether the decline is due to the effects of reforms prior to W-2, or the current generally favorable conditions in the labor market.

For research that tries to assess the impact of welfare reform in Milwaukee, see the Welfare Reform Page of the University of Wisconsin at the Milwaukee Employment and Training Institute. Some advocates and union leaders have suggested that W-2 is designed to depress wages for all low-wage workers, not just W-2 participants. While overall impact of welfare to work remains a puzzle for some, one thing is clear, the rights of participants are diminished when compared to the rights of AFDC clients.

The Problems

The ACLU has long debated whether or not there is a constitutional right to a subsistence income. For a sample of the discussion on welfare reform and civil liberties, see the Background Briefing from the ACLU Reproductive Rights Project.

Although the U.S. Congress and the State of Wisconsin have declared that welfare is no longer an "entitlement," the ACLU of Wisconsin believes that W-2 participants should have basic due process rights. For instance, if the "employment planner" decides that the participant has failed make satisfactory job search efforts and sanctions the person, then the poor person will have go through a two-stage appeal process. Unfortunately the W-2 participant, unlike an AFDC client, will be deprived of a part or even all cash assistance while the employment planner's decision is under review.

Other civil liberties problems with W-2 include lower benefits for new residents, privacy violations, and ineligibility for certain categories of immigrants.

Besides traditional civil liberties problems there are a host of workers' rights issues, if W-2 participants are considered employees, which they certainly are in the three most-preferred job categories. These issues include:

• Wage and hour issues, such as the right to the minimum wage or even the prevailing wage.
• Health and safety law coverage.
• Protection against discrimination, especially sex discrimination and sex harassment.

For a brief summary of relevant case law, refer to the National Conference of State Legislatures: Constitutional Issues in Welfare Reform.

The Prescription

The ACLU of Wisconsin is actively investigating all these issues. Wisconsin Works changed frequently during the design phase, and the law continues to change. For instance, the federal Balanced Budget Act of 1997 made a number of changes in the federal block grant program. See the Center for Law and Social Policy report, "Welfare-to-Work Grants and Other TANF-related Provisions in the Balanced Budget Act of 1997."

Now that W-2 is being implemented, challenges to specific decisions or practices may be possible. Stay tuned for further developments.