Job Guarantee must be a justiciable right.

Why Not Simply Include a Justiciable Right to a Job in the Bill?

But why is this complicated tangle of de-facto job-guarantee provisions necessary? Why not simply include language in H.R. 1000 guaranteeing a program job to all jobseekers? The simple answer to these questions is that drafting a workable job guarantee provision for inclusion in a job-creation bill is harder than one might reasonably think.

First, unlike a formula-driven monetary benefit, determining what kind of job offer is required to satisfy a job guarantee involves a wide range of both objective and subjective considerations. Judges generally prefer to decide disputes over such matters based on procedural rather than substantive considerations, and when required to consider the latter, they want a clearly-defined set of criteria to guide their decision making. If the statute or regulation they are called on to enforce provides nothing more than a general mandate (e.g., guarantee everyone a job that pays at least “X” dollars and hour with benefits), a judge will be forced to construct procedural and substantive criteria of their own in explaining their decision. Gradually a body of caselaw will fill in the blanks left unfilled by the legislation, but the original intent of the legislation may get lost in the process. The torturous history of litigation interpreting Title VII’s poorly specified prohibition against discrimination (based on the also poorly specified categories of race, color, religion, sex and national origin) illustrate what happens when the courts are left to do this work. Ideology takes over, and on average, over time, courts tend to be more conservative than legislatures.

Second, it is inherently difficult to implement a job guarantee when the entity charged with fulfilling the guarantee must do so, as a practical matter, with jobs furnished by other entities. This is true even when those other entities are participating in the job-creation program. Would it be workable, for example, for a job-guarantee program to tell a local school board that it must hire a particular jobseeker as a program-funded teacher’s aide? In fact, state law would almost certainly prohibit a public school system from participating in a job creation program that included such a provision. This “placement problem” can be reduced, of course, if the program administers its own job-creation projects, as the New Deal did. However, limiting a job-creation program to such projects today would greatly restrict the program’s ability to improve the delivery of the broad range of public services that are provided by all levels of government today. The WPA operated many projects that supplemented locally-furnished public services, but few if any in which WPA employees worked alongside regular public-sector employees. Finally, mandatory placement policies could also violate the already badly-compromised right of jobseekers to free choice of employment—an important aspect of the right to work recognized in international human rights law. See Universal Declaration of Human Rights, art. 23(1).

The Original Humphrey-Hawkins Bill as an Object Lesson: The job guarantee included in the original (1974) Humphrey-Hawkins bill illustrates these difficulties. The bill aspired to provide all jobseekers an individually justiciable right to a job and it is commonly described as having done so. But the only individually justiciable right the legislation actually guaranteed jobseekers was placement on the payroll of a “standby Job Corps” whose members would be paid a monthly stipend while remaining “available for public service work upon projects and activities that are approved as a part of community public service work reservoirs.”

It clearly was the intent of the legislation that these “public service work reservoirs” would provide adequate amounts of suitable work to keep members of the standby Job Corps continuously and usefully employed, but the bill contains no justiciable guarantee that this goal will be achieved—which is why the members of this standby Jobs Corps were to be paid a monthly stipend rather than a wage linked to the work they actually performed. This stipend is described in the bill as a “monthly rated sum based upon their employment in a suitable and comparable job.” What did that mean? The bill does on to explain that it meant they would be paid “compensation . . . that bears a positive relationship to their qualifications, experience, and training” subject to two limitations. First, they could not be paid less than “the minimum wage in effect in the area” (though for how many imputed hours of work is not explained). Second, the “monthly rated sum” had to be low enough to “effectively encourage them (from an economic standpoint) to advance from the Corps to other employment.”

In other words, what the bill actually guaranteed jobseekers was a monthly stipend that was less than but proportional to what they reasonably could expect to be paid performing the kind of work for which they qualified—with a floor on the size of the stipend equal to the locally applicable federal or state minimum wage. In exchange for this stipend they had to remain available for work assignments on public service work projects in their community, but they were not guaranteed such work and their monthly stipend would not depend on the type or amount of work they actually performed on those projects during the month.

Did this provide jobseekers with an individually justiciable job guarantee? That depends, of course, on how you define the term. It should be acknowledged, though, that the justiciable guarantee provided by the bill could just as easily be characterized as an improved form of unemployment insurance— providing a monthly, formula-driven benefit payment to any and all unemployed individuals in exchange for remaining available to work on local public service projects without the amount or nature of the work they actually were called upon to perform having any effect on the size of their monthly benefit.

The point I want to emphasize, though, is how the nature of the bill’s putative job guarantee were driven by the two difficulties I noted above. First, whatever process and standards the program adopted for setting an individual jobseeker’s monthly stipend would have made it relatively easy for a judge to enforce the guarantee based on whether the proper procedures were followed and the appropriate standards applied. Second, the creation of a standby Jobs Corps meant the program’s “Job Guarantee Office” (the official name of the program’s job placement office) could guarantee jobseekers employment of a sort without having to secure jobs for them in the “reservoir of public service and private employment projects” the bill contemplated creating to achieve full employment.

How Do Current Job-Guarantee Proposals Solve these Problems? How do the current crop of job guarantee proposals address these difficulties? I’ve already explained how H.R. 1000 does it (or could do it if you think the current version of the bill is inadequate in this regard). Other job guarantee proposals punt on the issue by simply declaring that suitable jobs will be guaranteed.