Working under the conditions of social welfare: legal framework, prevalence and regulatory gaps

Introduction

For most people, gainful employment constitutes their most important source of income. Employment is furthermore considered a significant means of social integration. In cases of long-term unemployment, social assistance provides a minimal income once social-insurance benefits have been exhausted – it is the last safety net in the welfare state. Over the course of changing to an activating welfare state, social-assistance benefits have more and more frequently only been handed out under the condition of employment or participation in an occupational program.

Gap in existing research

What are the legal aspects of such welfare-to-work programmes? While the rules and conditions of regular employment relationships (first labour market) are rather well explored, this cannot be said about the triangular relationship between social insurance or social assistance, employer, and employee (second labour market). A particularly large gap lies in the field of welfare-to-work measures in social assistance (third labour market). The legal rules that govern such employment are essentially unknown. Furthermore, the consequences for other legal relationships and the prevalence and design of these programs have also remained unidentified.

Legal scholars in Switzerland have barely touched upon the field of social assistance. The same can be said of the emerging research in the sociology of law. Nevertheless, valuable points of reference can be found in sociological and ethnographic studies on welfare-to-work programs, which discuss inter-institutional collaboration and the relationship to the client in social insurance and social assistance.

Research plan

This project will first describe and analyse occupational welfare programs with regard to constitutional law, human rights, labour law, and employment law. It will then explore the implementation of such programs and their heterogeneity from a legal perspective. This will include investigating the actual prevalence of such programs, their possible functions from the perspective of social policy (qualification, integration, disciplining, legitimisation), and the possible need for legal action. Finally, the project will assess the existing legal framework and suggest draft legislation.

The project aims to clarify the topic from the perspectives of both legal theory and law-and-society studies (case law, mobilization of the law, actual prevalence), and aims to contextualise the results in law and political science. Concretely, the project will research the constitutional-law and human-rights frameworks for labour relationships in the first and second labour markets, and analyse and typologize the construction of cantonal welfare-to-work measures in the third labour market. This will be done from dogmatic, political-institutional, and discursive perspectives. Legal practices will be investigated through surveys in the cantons and case studies in different municipalities.

To conclude, the project will analyse if and how instruments from employment and labour law are suitable for occupational welfare programs. The project will fill the gap in legal research on the regulatory framework of employment and occupational relationships in the first, second, and third labour markets. The results will be able to serve legal practitioners (judges, lawyers) as a guide for interpreting the existing rules. They will also provide politicians with facts on welfare-to-work measures in social assistance, and highlight specific needs for federal action. The project is conceived as a contribution to legal and social research.

Duration

July 2016 – April 2020

Output

This final report summarises the main findings of the research project (-> PDF).

In short, it holds that there are basically four widespread types of employment relationships throughout Switzerland (evaluation, qualification, placement, and participation), but the actual structure of the legal relationships is extremely diverse.

The legal relationship – although work is being performed – has been shaped primarily by social welfare law, and, above all, it has been emphasised that participation in a programme is an obligation, the violation of which may lead to a reduction in benefits, up to and including the loss of eligibility for benefits. Through this process, the protective functions of labour law (designed to provide protection to the weaker party in the legal relationship) and social security law took less priority.

Our report shows that this is problematic in several ways. It favours a disciplining effect over actual reintegration. The strong emphasis on the mandatory character and enforcement through negative incentives (such as a reduction of the benefits) creates additional eligibility criteria for state benefits, which are intended to guarantee a life in dignity and social participation. Such policies can also have particularly drastic consequences for the legal status of individuals. Moreover, it has not been sufficiently clarified when state benefits can be refused and for which reasons.

Based on this analysis, we recommend making adjustments in three areas as well as the introduction of minimum standards for work under the conditions of social welfare. The intention is to ensure equal treatment, preserve the human dignity of welfare recipients, and bring the necessary clarity and legal certainty required for proper application of the law.

Participation in an occupational programme is not a prerequisite for entitlement to social welfare or emergency aid. Any reduction of benefits based on the refusal to participate in appropriate and reasonable occupational programmes must be proportionate.
The legal relationship in those programmes that involve the performance of work is regulated by employment contracts and wages are subject to social insurance.
State-of-the art evaluations must measure the impact of the programmes. This is a prerequisite for the State being able to control programme offers on the market.

These recommendations are based on existing practice in certain cantons and programmes.

Funding

This project is funded by the Swiss National Science Foundation