Hard cases and bad law

Yesterday's Court of Appeals decision on W-2 reads as a curious thing. DWD had apparently adopted a practice of placing people who were "job ready," i.e., employable in unsubsidized employment, in the "unsubsidized employment" category even if they had not found employment. Perhaps more accurately, they have not placed such people in one of the W-2's "employment positions" - trial jobs, community service and something called a "transitional placement." Putting them in this "job ready" category apparently means that they do not receive wages but are eligible for other W-2 services.

The majority held that this was inconsistent with the statute because "unsubsidized employment" is defined as employment for which no subsidy is required. Because these folks are unemployed, the court reasoned, they must be placed in one of the other categories.

This does not appear to be a necessary reading of the statute and the majority opinion does not make a strong case for it. Defining what "unsubsidized employment" is does not mean that only those who have found it can be regarded as appropriate and ready for it. The statute expressly provides that only those who, "are unable to find to obtain unsubsidized employment [or other employment], as determined by the Wisconsin works agency"may be placed in the trial jobs or community service. Only those falling within specified criteria that would preclude a finding of "job readiness" (and so not applicable here) may be put into a transitional placement.

While I suppose you could argue that this language opens up those categories to those who are have not found unsubsidized employment even if they are capable of performing it, there appears to be nothing in the statute that mandates such placement and, as both the majority and dissent note, the statute expressly states that even if a person has fulfilled the eligibility requirements for any component of Wisconsin works, no one is entitled to W-2 services and benefits.

The impact of the decision seems to require DWD to offer all or nothing. To provide other W-2 services, an individual is either going to have to have an unsubsidized job or be in one of W-2's subsidized "employment categories."

On the one hand, it seems that there are very few people in this category of "job ready but unemployed" which seems to say something about the current job market and/or the skills of W-2 participants. Under these circumstances, the state can now presumably decide to either subsidize these participants or dismiss them from the program without a huge impact on the budget or the effectiveness of W-2 as a jobs program. (Obviously the impact on the individuals will be more significant.)

Critics of the "job ready" category suggest another possibility. They say that the program does not do enough to help people find jobs (and, in fact, discourages job ready people from applying by not offering them cash assistance.) This criticism rests uneasily with the purpose of W-2 which was, in part, to encourage employment by denying cash subsidies to those who are employable.

The decision effectively convert W-2 into a program that either 1) guarantees - for a time - subsidized employment or community service jobs or 2) provides nothing to people who are qualified for, but so far unable to find, work. Maybe that is what the legislature intended or what the law that it passed requires, but the majority opinion is not very persuasive.