Note: Since the date of original publication, General Assistance law has been amended in several ways that required the original text to be changed. Specifically, the period of disqualification for a workfare-related violation was increased from “up to” 60 days to a fixed 120 day period. Also, workfare violators are now permitted only one single opportunity to regain eligibility within duration of any 120-day disqualification. The state minimum wage has also been increased a number of times since the original publication date. The text of the original article has been amended to reflect these changes [June 2012].

Workfare
Understand It Before You Use It
(from Maine Townsman, January 1991)
by Geoffrey Herman, MMA Paralegal

The current economic recession is placing extraordinary demands on municipal general assistance (GA) programs. If any of the proposals which are now being advanced by the Department of Human Services (DHS) to reduce the state's exposure to welfare programs are eventually implemented, the increased demands on municipal welfare programs will be staggering. While the DHS apparently feels it necessary for financial reasons to reduce eligibility for public assistance in this time of need, municipal welfare officials take a different view. GA administrators recognize a governmental obligation to prevent people who are impoverished from becoming destitute. As part of that obligation, however, municipalities want the public assistance program they administer to be as accountable as it is fair and reasonable. No public assistance program can be administered effectively without the support of the taxpayers who supply its funding.

One aspect of the GA program which touches on the issue of accountability is the workfare program. As the deteriorating economy provides fewer and fewer regular job opportunities, many municipalities are reviewing their policies regarding the municipal workfare program.

22 MRSA 4316-A permits a municipality to require that a person who receives GA and is capable of working to perform work for the municipality or a nonprofit organization. As part of a workfare assignment, a municipality may also require that recipients participate in a training or educational program which would assist them in getting a job. There are a number of conditions attached to this general authority to issue work assignments to GA recipients:

- The number of hours of work a recipient may be assigned can be no more than the amount of assistance received divided by the state minimum wage ($7.50 per hour as of October 1, 2009), although hourly rates higher than the minimum wage may be used in the computation:

- Recipients may refuse to work for nonprofit organizations with religious affiliation, if to do so would violate the recipient's religious beliefs;

- It is against GA law to replace regular town employees or employees of the participating nonprofit organization with workfare recipients;

- The law expressly prohibits withholding the issuance of emergency GA while waiting for the recipient to perform his or her work assignment. Because all GA, whether emergency or non-emergency, must be issued within 24 hours of application, it is a general rule that neither emergency nor non-emergency assistance can be withheld while waiting for the recipient to perform a work assignment. The exception to this general rule is when a recipient has been disqualified from receiving assistance for failing to perform a workfare assignment without just cause and that recipient is attempting to regain eligibility by making up workfare time owed to the town. In this circumstance, the disqualified applicant may be required to perform all back work assignments before becoming eligible to receive assistance.

- Workfare related expenses incurred by the recipient must be included in the budget analysis of that recipient's need. Typically, special clothing (e.g., coveralls, boots, gloves, etc.) necessary to perform a workfare assignment are directly supplied by the municipality.

- No workfare assignment may interfere with the recipient's: (1) existing employment; (2) ability to "pursue a bona fide job offer" or attend an interview for a job; (3) participation in a primary or secondary educational program; or (4) participation in a job training program.

Whether reviewing an existing workfare program or contemplating the establishment of workfare, there are a few issues that should be considered by the municipal officers. First, what are the municipal goals regarding workfare; that is, what is the municipality expecting to achieve by instituting and maintaining a workfare program? Second, what administrative duties or obstacles are associated with maintaining a workfare program, including the issue of liability for workfare injuries? Finally, does the operation of a workfare program present an overall financial advantage or disadvantage to the municipality?

Municipal Goals

Although there is no legal requirement that a workfare program be operated according to any specific or formal municipal policy, it would be very helpful to the GA administrator and other municipal officials associated with the workfare program to understand what the program is intended to accomplish.

There is no single "correct" reason to operate a workfare program, but there are many inappropriate or indefensible reasons. For example, a workfare program should not be established nor should individual workfare assignments be made to humiliate or punish people for needing assistance. The primary objection to workfare voiced by some GA recipients and their legal advocates stems from the perception that workfare is assigned as a penalty for receiving assistance and is therefore demeaning and an affront to a recipient's sense of dignity. This false perception should not be fostered, and so it is very important that a recipient's contribution of labor through workfare is treated as positively as a regular employee’s contribution of labor.

It would also be inadvisable to establish a workfare program to achieve a goal which will not be realized. For example, the municipal officers will only end up frustrated if they start up a workfare program in order to reduce the overall number of people applying for assistance. Although there is some anecdotal evidence that a few recipients will stop seeking help when workfare becomes a condition of receiving assistance, there is no statistical support that a workfare program deters applications or reduces the disbursement of assistance. It is no fun to apply for any form of public assistance, and the vast majority of GA applicants seek municipal assistance as a last resort and have a vital need for the assistance they seek. Also, while it is possibly true that some GA applicants will avoid municipalities that have an established workfare program, the total number of applicants who will actually choose where to live based on the local welfare requirements is extremely small. People are influenced by more compelling factors when it comes to choosing where they want to live.

The municipal officers will also be ultimately disappointed if they expect the workfare program to supply a significant amount of "free labor" to the municipality. As has been pointed out above, it is a violation of law to replace the labor contributed by a "regular employee" with workfare labor, which means that no regular employees could lose their jobs or have their hours reduced because their job duties were being accomplished by workfare participants. As a general rule, the work assignments that are given must be for work to which there is no end (e.g., sweeping, cleaning, floor stripping, painting, brush removal, snow removal, etc.), or work which would otherwise be contracted out or not get accomplished at all. Another reason why workfare is not a "free labor" windfall is that for a number of reasons discussed below, recipients performing workfare must be adequately supervised, and the costs of careful supervision can in some cases outweigh the value of the labor contribution.

Despite the foregoing, there are positive, constructive reasons to establish a workfare program. Although the claim would be hotly disputed by some GA recipients and their legal advocates, a municipal workfare program can be operated to provide an overall benefit to both the recipients and the municipality.

To begin with, some recipients prefer to work for their assistance. They would rather not feel obliged to the town in any way for the assistance granted to them, and workfare is one way to eradicate any sense of indebtedness to the municipality for the assistance granted. For this reason, the recipient who has performed workfare satisfactorily should be issued at convenient times some form of "receipt" for workfare performed which will document that there is no debt of any kind and the municipality will never seek recovery for the proportionate amount of assistance.

Also, if the town makes sure that recipients performing workfare are regularly provided some positive reinforcement for their efforts, the participant might obtain a sense of accomplishment and positive self esteem, and a positive self attitude is all-too-often not readily available to the welfare recipient. Coming third in line after the broad economic forces which contribute to poverty in the first place, and the unfortunate disincentives to work which are an inherent part of state/federal entitlement programs, the greatest obstacle preventing welfare recipients from breaking out of the public assistance system is the pervading sense of powerlessness and lack of control that can accompany poverty.

It is also indisputable that some recipients can benefit from establishing a good work record. A properly administered workfare program can, at the very minimum, encourage recipients to develop desirable work habits. Furthermore, workfare recipients who do a good job with their work assignments should be encouraged to use the municipality as a reference when applying for regular employment. Indeed, many municipalities have given permanent jobs to people who demonstrate a positive job attitude through their workfare performance.

Finally, although there are some obstacles to assigning recipients to jobs requiring certain skills (see below), it is not impossible to use the workfare program as a limited job training program for some recipients.

The ultimate goal of any welfare administrator is to enable the assistance recipient to secure and keep a job, and anything that can be done to improve a GA recipient's employability is beneficial to both the recipient and the town.

Administering a Workfare Program

The legal authority to establish a workfare program is found in GA law. MMA's model General Assistance Ordinance, at Section 5.6, re-establishes that authority in the local ordinance, along with all the specific legal provisions governing the workfare program. Therefore, if the municipality is operating under the MMA model ordinance or an ordinance similar to the model, no ordinance changes need to be made to start up a workfare program. There is much more to administering a successful workfare program, however, than simply assigning work to recipients and hoping for the best. There has to occur a certain amount of preparation even before the first workfare assignment is issued, and any workfare program involves ongoing administrative responsibilities that should not be underestimated.

Pre-Program Tasks

Liability. The most often-asked question regarding workfare concerns municipal liability in the case of a workfare injury. It was at one time thought that if a recipient was injured when performing workfare, the costs associated with that person's injury would be covered by the Workers' Compensation Program. In 1986, the Maine Supreme Court settled that question by holding that a workfare participant is not an employee of the town for the purposes of the Workers' Compensation Act, and that there is no entitlement to relief from workfare injury under the Workers' Compensation Program (Closson v. Southwest Harbor, 512 A.2d 1028).

Some municipalities have overreacted to the Closson decision by thinking that municipalities are therefore directly exposed to all claims of workfare injury. This is not necessarily the case. All municipalities can establish the same type of insurance protection for workfare injuries as they currently maintain for any type of injury any person may receive due to municipal negligence. All the municipality has to do is contact the town’s general liability insurance agent and explain its intention to establish a workfare program. The agent will determine if any change to the town's current insurance policy has to be made, and will otherwise work with the town to establish the necessary insurance protection. It is very important that the town not assume that workfare insurance protection is automatically available under its general liability policy. If the insurance company is not aware of the town's workfare program and the insurance policy is not clear on the subject, an injury claim advanced to the insurance company may be denied.

Supervision and Inter-departmental Cooperation. There is another very important system that must be established before instituting a workfare program, and that involves inter-departmental communication. It is essential to the success of the program that the workfare policies be described to both the various municipal officials or employees to whom workfare participants will be assigned as well as all the municipal employees who will be working alongside workfare recipients.

The first task is to determine which municipal employees or officials, or which nonprofit organizations, are willing to cooperate with the GA administrator's workfare program. It is imperative that participants not be assigned to municipal personnel who are unwilling to participate in the program constructively. It would be a big mistake to assign participants to the elected road commissioner, for example, if he or she wanted no part of the program. Both the road commissioner and the participants would be unhappy, and there are the sensitive issues of liability and confidentiality which require some diligence and understanding on the part of the municipal supervisor who will be working with workfare participants.

Supervision. All workfare participants should be assigned to jobs which are appropriate for their skills and abilities. Therefore, the department heads or employees who can accommodate workfare participants should regularly specify to the GA administrator the types of jobs which will be available and the necessary job qualifications. It should also be noted that GA law provides that a workfare participant may be disqualified from receiving GA for 120 days statewide  not only for willfully failing to perform the workfare, but also for willfully performing the workfare below "average standards of that job." Therefore, it is also crucial that the participants’ level of performance be reported back regularly to the GA administrator so that he or she will know the extent to which any participant has fulfilled the workfare obligations. In short, a two-way communication system must be established between the GA office and any departments supervising workfare participants. With regard to any performance evaluation of a participant, it is helpful if the communication is in writing so that it will become part of that client’s case record. A simple form for this could be prepared.

As has been discussed above, municipalities can be held financially responsible for injuries sustained by workfare participants, although general liability insurance coverage is available to protect the town’s direct financial exposure. It is obviously in the municipality’s interest to minimize the risk of injury from occurring in any municipal workplace. For a number of reasons, the most effective method of minimizing the occurrence of workfare injuries is the least cost-effective method; that is, relatively close supervision. Workfare participants do not work for the municipality either regularly or for a long period of time. They may be unfamiliar with the job duties expected to perform, they are unfamiliar with the routine and standard practices of the job site, and they may not possess a solid background in the area of fundamental job abilities such as communication or teamwork skills. In short, workfare participants frequently require the heightened supervision necessary for a new employee. The eager motivation of a new employee, however, may not be a characteristic of the workfare participant.

Except under very highly supervised circumstances, workfare participants should not be working near power equipment (e.g., chainsaws, lawnmowers, wood chippers, etc.), working on ladders or staging high off the ground, or performing very physically demanding tasks if there is any question with regard to physical ability. On the other hand, there is no need for overbearing or constant supervision of work assignments which are neither demanding nor dangerous. Hopefully, the supervisor will have sufficient "people skills" to quickly assess the type and amount of supervision any particular workfare participant will need. It is important to remember that the person performing workfare is justifiably sensitive to being treated differently from other employees, and anything that can be done by the supervisor to de-emphasize the perception of special status will be for the good.

Confidentiality. All GA administrators - but not all municipal officials or employees - are aware of the confidentiality provisions in the law. 22 MRSA § 4306 provides that "no information relating to a person who is an applicant or recipient may be disclosed to the general public, unless expressly permitted by that person." A key element of this confidentiality provision is the term "to the general public." Clearly, other municipal officials or employees would not be construed as the "general public" where information regarding an applicant must be disclosed to them for the purposes of operating a workfare program. Issues of confidentiality would arise, however, if information about a workfare participant’s receipt of assistance began to spread beyond the confines of the municipal officials or employees entrusted with that information. Persons to whom confidential information is disclosed must themselves treat that information confidentially. All supervisors and employees working alongside workfare participants should be briefed on the confidentiality provisions of the law. Even beyond the legal prohibition against revealing to the general public the names of people receiving GA, the extreme importance of enhancing a workfare participant's sense of self respect--in this case by not revealing a participant's workfare status to anyone--should be emphasized and re-emphasized to all municipal employees.

Starting Workfare

The actual administration of the workfare program begins with an initial screening and entry level discussion with the applicant. The two major criteria which the GA administrator must evaluate before considering a workfare assignment are (1) any physical or mental limitations on the recipient's ability to perform an available assignment, and (2) the time available to the recipient to perform the workfare.

No one may be required to perform workfare if they are physically or mentally incapable of performing the assignment. Where such a disability is apparent or of such a short duration that a reasonable person would not ordinarily seek medical verification, no physician's statement describing the limitation may be required by the town. On the other hand, if a non-apparent physical or medical disability is being claimed by the patient without any substantiation from a doctor, the GA administrator would only temporarily waive a work assignment by giving the recipient at least 7 days to submit a verifying doctor's statement. Generally speaking, work assignments would be waived for applicant's receiving Supplemental Security Income (SSI), although some SSI recipients may ask to be assigned workfare and there is nothing to bar a town from making such an assignment as long as the work is appropriate to the applicant's ability. Persons applying for SSI but not yet receiving that benefit would not be waived from a workfare assignment without a doctor’s statement verifying the extent of their disability.

The GA administrator must also make an initial assessment of the time available to the recipient to perform the work assigned. As was noted above, no workfare assignment may interfere with a recipient’s existing employment, participation in a primary or secondary educational program leading to a high school diploma, or participation in a bona fide job-training program. Therefore, the amount of time per week an otherwise eligible workfare participant must reasonably spend in these areas must be deducted from a standard 40-hour workweek. Furthermore, if the town is requiring the recipient to apply for a job at a certain number of places of employment per week, the amount of time reasonably necessary to accomplish that task would also be deducted from a 40-hour work week. After all these deductions, the remaining hours would be considered as available to perform workfare.

After the GA administrator has ascertained the number of hours available to the workfare participant, the next step is to calculate the number of work hours which are going to be assigned during the recipient’s period of eligibility. GA law requires that the number of assigned hours be no more than the dollar amount of assistance granted for the period of eligibility divided by at least the prevailing minimum wage. It is sometimes impossible, however, to assign the total number of hours which would result from using the minimum wage in this calculation because there are simply not enough hours available to the participant. In this circumstance, the administrator would only assign the number of hours that are available to the participant and forget the rest. The remaining hours may not be "banked" and assigned for a future period of eligibility. Also, GA administrators are entirely free to use a wage rate higher than the minimum wage in the calculation of hours to be worked, and when the job assignment deserves a higher wage rate, or the wages paid for identical work to similarly skilled regular employees is higher than minimum wage, the administrator should consider using the prevailing wage rate rather than the minimum.

As will be discussed below, a workfare participant may not be penalized or sanctioned for a specific failure to perform a work assignment when the failure was for "just cause." One of the definitions of "just cause" is the "inability to arrange for necessary child care or care of (an) ill or disabled family member." For this reason, a single parent who is taking care of preschool age children at home may easily and credibly establish a "just cause" reason not to perform workfare assignments. If the children being cared for are of school age, however, it is very possible to schedule workfare assignments for the parent during school hours. Furthermore, if there are at least two responsible adults in the household as well as preschool children, both adults could be assigned workfare providing the scheduling of the assignments always allowed at least one adult to be taking care of the children whenever necessary.

The work order form. One of the various GA forms provided by MMA is the work order form (Model Form #7). All GA recipients to whom the administrator wishes to assign workfare should complete this form or a form similar to it. The form, which must be signed by the participant, is essentially an acknowledgment of the various details of the workfare program and of the GA recipient's ability and willingness to participate. As with all written forms used in the GA program which are signed by the recipient, every effort should be made to ensure that recipient completely understands the form before signing it. Administrators should not hesitate to go over the form orally with the recipient and answer any questions the recipient might have.

The first workfare assignment given to an applicant presents itself as the perfect opportunity to thoroughly explain the municipal policy regarding workfare to the new participant. The positive aspects of workfare should be emphasized, such as the opportunity for the participant to establish a good job record and job references. The applicant should also be encouraged to report back to the administrator if he or she is treated less than respectfully by supervisors or other municipal employees.

Finally, the workfare assignment issued should be very specific about when, where and to whom the participant should initially report. Participants should also be specifically instructed as to how to contact the municipality if for any reason they are unable to show up for their work assignment.

"Just Cause" and monitoring workfare performance.The administrator's work is not finished with issuing the workfare assignment. In some respects it has hardly begun. As workfare performance is most essentially a condition of future GA eligibility, every time a workfare participant applies for GA after having been assigned workfare, the administrator must determine if the work assignment was completed satisfactorily, and if not, whether the workfare failure was for "just cause." The law provides that workfare participants can be disqualified for receiving GA for 120 days statewide if they willfully fail to perform a workfare job assigned to them without just cause or if they willfully perform the workfare assignment below the "average standards" of that job.

GA law details eight specific "just cause" reasons for failing to perform a work requirement. Some of the "just cause" definitions apply more readily to work requirements other than workfare, such as the requirement that a GA recipient not quit his or her listing job without just cause.

"Just cause" is defined as existing when the following verifiable circumstances are associated with the work assignment:

· the recipient has an overall physical or mental disability, is physically or mentally unable to perform the particular tasks assigned, or cannot meet required piece work standards;

· the recipient is receiving less than minimum wages;

· the recipient was sexually harassed at the job;

· the recipient is unable to work the required hours;

· the recipient has no transportation to or from work or training;

· the recipient is unable to arrange for necessary child care or care of ill or disabled family members;

· any reason found to be good cause by the Department of Labor, (pursuant to the determination of eligibility for unemployment benefits); and

· any other reason which is reasonable and appropriate.

It is against this list of "just cause" reasons for failing to perform workfare that the GA administrator must weigh any circumstance of workfare failure that is reported. The participant has the burden of establishing a 'just cause' reason for failing to perform workfare; the administrator need not go to any special effort to ascertain why a participant did not perform a workfare assignment. When a person simply fails to show up to perform an assignment and does not contact the municipality as he or she was instructed, a disqualification should issue. If after receiving notice of the disqualification, the participant is able to convince the administrator that the workfare failure was, in truth, for "just cause," the disqualification could be revoked. Obviously, any person dissatisfied with a final decision regarding eligibility for GA has a right to appeal that decision, if the appeal request is timely, to the local fair hearing authority.

In order to disqualify a participant for willfully performing a job assignment below the "average standard" for that job, the municipality has the burden of establishing substandard performance as a matter of record. A "paper trail" should clearly demonstrate that if the workfare participant were a regular town employee, he or she would have been fired for violating established standards of acceptable performance and workplace behavior.

When to disqualify; period of disqualification. As soon as the municipality establishes that a workfare violation has occurred, the disqualification should issue in the form of a brief notice of disqualification mailed to the participant. Proactively notifying participants in a timely manner is a much more fair and responsible way to administer disqualifications than to wait until the applicant next reapplies for GA. On occasion, a participant will to elect not to perform a workfare assignment. In understanding that the result will be a qualification for 120 days, he or she may make a point of not applying for GA until that time. Upon reapplying 120 days later that person should not be then disqualified for another 120 days merely because the town never got around to issuing a formal qualification at the time of the violation.

The period of disqualification is for 120 days or until the applicant regains his or her eligibility by complying with the requirements which had been assigned; whichever is less. GA expressly provides that the applicant may be given only one opportunity to regain eligibility after a disqualification by agreeing to comply with the previously established requirements. The provision in the law which allows disqualified applicants their eligibility by agreeing to comply with a workfare requirement sometimes causes municipalities confusion. In order to regain eligibility, the applicant must catch up by actually performing the work hours previously owed to the municipality. Some disqualified participants and their legal advocates argue that because the law expressly prohibits withholding of emergency assistance waiting for workfare to be performed, no emergency assistance may be withheld to a participant who is seeking to regain eligibility by agreeing to comply with past due work requirements. Actually, when the pertinent sections of GA law are read together (22 MRSA §§ 4308(2)(A) and 4316-A (2)(D) and (4), it would appear that a disqualified workfare participant is not eligible to receive any kind of assistance, emergency or otherwise, unless and until eligibility has been regained, and that can only occur when the disqualified participant has complied with his or her past due assignments. At any rate, municipalities should not be under the impression that a person who has failed to perform workfare and has therefore been disqualified can simply waltz right into the town office and leverage more assistance on a mere promise.

As is the case with any disqualification (i.e., for either a work requirement violation, fraud or a failure to utilize a potential resource), only the responsible adults can be disqualified. The dependents of those responsible adults remain eligible for their GA needs. In determining household eligibility, the size of the household would be reduced by the number of disqualified individuals, although any income brought into the household by the disqualified individuals would be considered as available.

Obviously, the object of operating a workfare program is not to disqualify individuals from receiving assistance. A few GA recipients, however, will invariably test the municipality to find the limits of such concepts as "just cause," "average standards" of performance, or physical or mental inability to perform. When this type of testing behavior comes into play, the best municipal response is to patiently establish reasonable but very specific standards of performance, and make certain the recipient is well aware of the consequences for failing to work with the town in good faith. The rest is up to the recipient, and the various appeal procedures.

Workfare:
A Financial Analysis

There are a multitude of factors which must all be weighed before determining whether a workfare program will be financially advantageous to the municipality. Some of these factors are: the size of the municipality; the GA caseload; the number of suitable workfare jobs available; and a variety of factors associated with workfare program operations.

Speaking very generally, the smallest towns may not have enough workfare jobs or supervisory personnel available to allow for the operation of a workfare program except in very limited circumstances. The somewhat larger municipalities which may be expending several thousands of dollars in GA annually may experience actual reductions in caseload pressure after instituting a workfare program, but that reduced pressure will likely only be temporary. While it is clear that a few potential GA recipients will simply refuse to participate in a workfare program, the total reduction in GA expenditure resulting from applicants refusing to participate in workfare will probably not be significant for municipalities with GA budgets over $20,000 or so. It should also be noted that any reduced expenditure of direct GA--which is reimbursable to some degree by the state--could very well be offset by increased administrative costs necessary to operate the program. Local administrative costs are not reimbursable. Almost all municipalities expending over $100,000 in GA annually have established workfare programs. The largest municipalities have the personnel infrastructure in place to operate a workfare program efficiently and make good use of the available labor.

More than a financial analysis should go into the decision to operate or not operate a workfare program. Workfare injects some accountability into the local welfare program and no public assistance program can be operated responsibly and effectively if there is no support for the program by the taxpayers who supply its funding. Beyond the issue of public support, a workfare program, if operated in good faith, can be very effective in helping GA recipients improve their chances of getting a job, and helping recipients out of the welfare trap and into the workplace is the ultimate goal.