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By Jeremy Pilaar*
Lawmakers must pay constant attention to changes in the world around them. Societal problems are rarely static. Instead, they evolve—often assuming unexpected forms that challenge prior assumptions about how to solve them. When policymakers forego this exercise, they risk exacerbating social harms. I chronicle one example of this phenomenon in the latest issue of the Harvard Law & Policy Review, in a Note titled “Reforming Unemployment Insurance in the Age of Non-Standard Work.”
Fifteen years ago, political scientist Jacob Hacker warned lawmakers of the threat of what he labeled drift—“changes in the operation or effect of policies that occur without significant changes in those policies’ structure.” As Hacker explained,
“[t]he major cause of drift in the social welfare field is a shift in the social context of policies, such as the rise of new or newly intensified social risks with which existing programs are poorly equipped to grapple. The hallmark of change of this sort is that it occurs largely outside the immediate control of policymakers, thus appearing natural or inadvertent. The question for policymakers becomes whether and how to respond to the growing gap between the original aims of a policy and the new realities that shifting social conditions have fostered.”
Lawmakers appear to have forgotten these lessons in the labor market context. The nature of work has significantly transformed in the past fifty years. While earlier generations enjoyed stable, full-time employment, more and more Americans now find themselves working as part-timers, temps, on-call laborers, and independent contractors. Because these workers are especially vulnerable to low wages, meager benefits, and work stoppages, they are among those most in need of a robust safety net. Yet American social policy remains stubbornly focused on traditional employment relationships.
My Note explores how the failure to update Unemployment Insurance (UI) to account for these shifts hurts non-standard workers. The UI program provides temporary income support to people who become unemployed through no fault of their own. Its structure has changed little since 1935.
As currently designed, UI suffers four shortcomings that make it unnecessarily difficult for non-standard workers to obtain benefits. First, eligibility depends on income requirements that fail to reflect non-standard workers’ low and sporadic wages. Second, UI’s non-monetary requirements shut out part-timers, trap temps in poorly-paid gigs, and prevent non-standard workers from leaving jobs for a range of compelling reasons, including caring for a sick family member. Third, institutions designed to inform workers about UI do too little to reach non-standard workers, many of whom have less education than standard employees, lack a fixed place of work, and speak a first language other than English. Fourth, UI completely excludes independent contractors.
Fortunately, solutions to these problems are close at hand. Lawmakers could ease UI’s income criteria by tallying earning requirements over longer periods or trading earning thresholds for work-hour minimums. Policymakers could reform non-monetary criteria by allowing part-timers, people who leave jobs for legitimate reasons, and temps searching for full-time work to access UI benefits. The government could improve UI uptake by better advertising the program, notifying laid-off workers of their eligibility for benefits, and making more resources available to non-English speakers. Finally, legislators could shore up independent contractors’ incomes by integrating them into the UI program and aggressively fighting employee misclassification.
These changes, and other reforms that would benefit low-income workers, are sorely needed. Since the 1950s, the proportion of unemployed Americans receiving UI has fallen from 50 percent to around 25 percent. In some of the country’s most populous states, like Florida and North Carolina, that rate lies below 15 percent. These figures will only worsen if lawmakers continue to allow UI to become decoupled from labor markets. State and federal leaders must take steps to arrest this dangerous form of drift.
*Jeremy Pilaar is the SFALP Fellow and Lecturer in Law at Yale Law School.