The coronavirus crisis has led to the unemployment of millions of workers and exposed a labor market that is full of poor-quality jobs. Policymakers intuitively resort to upgrading worker skills as a workforce response to the pandemic; however, the problem isn’t with retraining. The nation’s workforce development system is in shambles. It lacks appropriate accountability mechanisms to ensure workers are matched to decent work and instead steers training for any in-demand job including those that offer low pay and poor working conditions. Enabling the changes needed requires a new legal regime that establishes a right to training for a quality job.

Introduction

The coronavirus crisis reveals a front-line labor market of poor-quality jobs that pay low wages, lack benefits, and offer little health and safety protection. Moreover, the pandemic is expanding a growing chasm between good and bad jobs that was well underway before the outbreak. Federal workforce development policy—the creation and filling of stable jobs within career paths—can play a critical role in supporting economic turnaround and improving job quality. Workforce development policy originated from programs created to combat unemployment during the Great Depression.[3] Administered by the U.S. Department of Labor, the public workforce development system delivers a range of reemployment and training services, including job search assistance, career counseling, occupational skill training, classroom training, and on-the-job training to individuals looking for a job.[4] In order to envision a workforce response path to inclusive economic recovery, policymakers must interrogate the way the American labor market treats people and how workforce development policy may reinforce this treatment.

For example, the demand to fill healthcare jobs is a growing concern as the COVID-19 crisis unfolds. Caregivers are at extreme risk of infection in the long-term care industry where widespread outbreaks in nursing homes have been linked to an estimated one-fifth of all deaths in the U.S.[5] Intuitively, there are calls for more investment in shorter training programs aimed at upskilling workers to fill front-line jobs,[6] which is a well-intentioned reaction to the need and urgency of the moment. But the public health workforce shortage existed long before the outbreak. The real issue isn’t about a deficit of skilled workers available to enter the health care worker pipeline with hopes to work their way up to higher-paying jobs in the sector. The problem is job quality.

Although the health industry is the largest job creator in the contemporary U.S.,[7] the quality of work in many health care occupations is egregiously poor. On average, home health aides and personal care aides earn about $24,000 a year—or $11.57 per hour[8]—and often lack access to benefits, including health care and paid leave.[9] These jobs often do not have a set schedule[10] and are both physically and emotionally demanding, as the work entails providing personal assistance with daily living activities like bathing, dressing, and eating.[11]

Without an accounting for job quality standards, deploying employment services and skills training programs alone will fail to respond to an uncertain economic recovery for those at the bottom of the economic ladder.

This Essay begins with a brief overview of the current U.S. model for workforce development and its historical separation from statutory regimes that protect only people with jobs (as opposed to those without jobs). Next, the Essay shows how a lack of accountability has rendered ineffective much public investment in training. It then offers the example of labor-management training partnerships as one way to recognize a right to quality work for job seekers. The Essay concludes by proposing two improvements that Congress should implement immediately: (1) establishing a concrete system to define and measure a quality job and (2) conditioning further job training funding on a recipient’s ability to prove it delivers those quality jobs.

I. U.S. Workforce Development Policy Is Divorced from Statutory Protections Covering Those Already In Jobs

The U.S. model for workforce development fails to incentivize defining or measuring job quality. Instead, it prioritizes training in high-demand occupations and employers’ needs for labor, giving lesser consideration to the economic and health needs of those performing the jobs. Shifting the focus of workforce development beyond skills training and toward improving labor conditions starts by understanding its proximity to the basic concept of work.

Traditional work arrangements are based on a set of legal rights that provide protections for workers in certain job classifications. Such a legal construct includes prohibitions against workplace discrimination based on protected classifications,[12] retaliation for workers’ concerted activity,[13] pay below minimum-wages or with no premium for working overtime,[14] and dangerous working conditions.[15] Federal statutes also ensure minimum standards around retirement plans,[16] health plans,[17] and unemployment insurance.[18]

Adding to the above baselines for quality jobs should also include a conception of the meaningfulness of work and a job’s economic stability from a long-term career path perspective. This is what is often referred to as “workforce development.” Yet, there is no legal framework of employment relations for workforce development.

In order to improve the quality of employment for all workers, setting and achieving high standards for quality jobs should be a condition of workforce development in the same way paying a minimum wage is a condition of employment. Requiring metrics to gauge job quality and conditioning workforce development funding on successful outcomes of multiple indicators, including those described immediately above, offers a way to formulate a legal doctrine for workforce development that is analogous to laws protecting incumbent employees’ rights.

II. Failures in Training Investments Due to Insufficient accountability

Especially in the current pandemic-induced economic crisis, it is vital to learn a lesson from the past on how best to impact the system before plowing billions of dollars more into the same job training programs. During the Great Recession, lackluster employment outcomes from job training were acute. In their impact study of the additional $2.95 billion dedicated to workforce training under the federal American Recovery and Reinvestment Act of 2009,[19] Carolyn Heinrich and Peter Mueser found only marginal effects of job training on employment outcomes and earnings.[20] Their findings suggest training wasn’t particularly helpful during the economic slowdown. Stephen Wandner’s review of the public workforce development system similarly points out that programs had more difficulty responding to the severe economic downturn.[21] Job seekers that received workforce services were less likely to find work than before the Great Recession, when there were more jobs. Both studies revealed that, when the labor market is weak, workforce development services may have minimal impact on improved employment and earnings. In these times, creation of quality jobs, with definable standards, must take precedence over training workers when no jobs are available.

While examining the performance of the public workforce development system is beyond the scope of this writing, it is instructive to understand the system’s current accountability markers. The Workforce Innovation and Opportunity Act of 2014 (WIOA)[22]—the current federal law governing job training—requires workforce development programs to track skills-training participation rates using various metrics; however, this is an insufficient proxy for quality employment.

Workforce development boards, which oversee the implementation of the public workforce system at the state and local levels, are each held accountable to a set of six common federal performance measures. Three of these common measures directly connect to labor market outcomes and are collected for each individual worker participant that exits a WIOA training program: 1) whether the participant entered employment; 2) whether the participant retained a job; and 3) the participant’s earnings from any job obtained. These performance measures together capture an employment outcome, per se, in terms of training output. The system, however, does not require training programs to account for whether actual job attainment is matched to decent working conditions.

As an example, for program year 2018, over 640,000 adults received employment and training services under the WIOA Adult Program.[23] Over 70 percent of adults participating in this WIOA program were employed a year after exiting the program, and over 60 percent earned some sort of educational credential. In terms of earnings outcomes, median earnings were $6,170 in the second fiscal quarter after completing the program, which amounts to about $25,000 a year,[24] compared to the real median personal income of $33,706 for all workers.[25] In a 2017 gold standard evaluation of the Workforce Investment Act of 1998 (WIA)[26]—WIOA’s predecessor—Mathematica Policy Research found that participants receiving the full set of WIA services (compared to partial service receipt) increased the likelihood of program completion and educational credential attainment but also suggested the intervention yielded minimal, or no, gains in earnings.[27] These outcomes indicate that, even if a job seeker completes an employment and training program and earns a credential, they are likely no better off in the labor market. This, in turn, leaves open broad questions about labor market inequality and declining job quality.[28]

At the same time, training opportunities have proliferated within the workforce eco-system, resulting in nearly 740,000 unique credentials in the education marketplace just in the past decade.[29] Research has well-established the link between higher levels of education with higher earnings, better health, and longer lives.[30] What is less understood is the economic value of educational credentials in the labor market. For example, researchers Thomas Bailey and Clive Belfield found that stackable credentials—sequential postsecondary awards that allow one to progress on a career path and are considered a promising model among industry advocates[31]—are not strongly connected to earning gains.[32]

Further, emerging training strategies, such as income share agreements (ISAs) should also face scrutiny. ISAs are conditional training contracts that allow lenders to advance a certain amount of training on the condition that the borrower repay the lender a portion of the borrower’s future earnings.[33] While more research is required, some computer coding boot camps using ISAs arguably are failing to boost trainees’ job prospects in the industry, while leaving the trainees indebted.[34] According to a New York Magazine investigation and a letter from a group of coding students at the Lambda School demanding a cancellation of their ISAs, the “substandard, disorganized, or completely lacking curriculum” “is unlikely to help students pass even a first-round programming interview.”[35] Greater accountability mandates would help keep some of the least effective job training models from continuing to proliferate.

III. Labor-Management Partnerships: A Proven Model for Job Quality

In visualizing a right to job quality, it is instructive to look at existing workforce models that are job-quality-focused without ignoring the needs of labor markets. Labor-management partnerships affirmatively promote job training as a measure for improving employment conditions.[36] These partnerships comprise groups of regional or sector-based employers and unions and are a proven model that connects quality training with good jobs.[37] Through a cooperative relationship between worker organizations and multiple employers, labor-management partnerships help to achieve economies of scale because employers don’t have to compete for well-trained workers. Quality training is financed through the partnership model and, to ensure workers develop the skills, networks, and experiences necessary to advance along a career path, the partnership model provides access to childcare, healthcare and paid leave, a safe workplace, and a collective voice on the job in order to raise concerns.

The SEIU 775 Training Partnership—a partnership between Washington state, private sector employers, and Service Employees International Union (SEIU) Local 775—offers a prime example for how to improve both job quality and care outcomes in responding to a fast-growing home-care industry in this crisis moment.[38] As highlighted above, home-care workers—the majority of whom are women of color—are typically paid low wages.[39] The SEIU 775 Training Partnership, however, prioritizes training to help make home care a desirable career, working in tandem with policymakers to raise pay, improve health and safety conditions, provide health care, secure retirement and job-matching benefits, and increase standards across the home-care industry.

Labor-management partnerships succeed in European countries like Germany, France, and Denmark by promoting lifelong learning with career ladders and quality jobs. In Germany, students can float between a course of academic study and on-the-job vocational apprenticeship training,[40] and the presence of strong unions helps guarantee that at least jobs in the formal sector are quality jobs.[41] Under this lifetime-learning model, workforce development focuses on providing general skills and dexterity, rather than specific skills for narrowly-defined jobs. German hotel workers, for example, complete apprenticeships that train on all areas of the hotel’s operation.[42] That model is in contrast to the one used to train British hotel workers, which focuses on specific jobs requiring narrowly-defined skillsets.[43] Ensuring high-quality jobs for all requires robust public investment and a perspective that training for quality jobs is a right. France, for example, provides such a right by requiring employers to finance vocational training through job training accounts, career interviews, and the training of current workers in anticipation of future changes through evolving technology.[44]

IV.
Two Proposals for Immediate Congressional Action

As Congress considers additional economic recovery measures, policymakers must seize this moment to redesign workforce development.[45] Specifically, we propose two incremental workforce system improvements that would enable a fundamental restructuring to engineer good labor market conditions for workers. First, defining and measuring a quality job is necessary to reinforce public workforce system engagement in shaping quality job creation in the labor market. Incentivizing data collection and workforce analytics beyond the current requirement of tracking skills attainment would set forth a complementary way to ensure the workforce system is matching individuals with good jobs. Second, any funding boost to federal job training programs must be contingent on ensuring that the money goes only to programs with a track record of placing workers in quality jobs and that do everything possible to ensure workers have sustainable career paths long after the initial placement. Making these two changes now by amending the WOIA’s performance accountability and eligibility conditions lays the groundwork for redesigning the public workforce system to engage employment relationships differently.

A comprehensive redesign of the public workforce system requires meeting workers where they are, regardless of life circumstances. To do this, the redesign must reestablish a set of job quality commitments between workers and employers and leverage those commitments as workforce consumer protections against making a bad job match. This also includes providing appropriate recourse mechanisms to job seekers when the system fails to improve employment outcomes. For example, job seekers would be viewed as consumers of workforce education and reemployment services, with access to statutory safeguards and remedies available in the labor market.

Conclusion

Millions of workers are now unemployed and are contemplating the sort of training they may need to obtain quality work in the future. Millions of others are rapidly changing the ways in which they work and may realize there are certain benefits to remote work but need the training to adequately adapt over the long term. Either way, the U.S. needs to reenvision workforce development to incorporate what workers want and to offer real and equitable access to quality jobs.

The current crisis has uncovered underlying weaknesses in the structure of work and a workforce development system that reflects these flaws. To truly improve working conditions boldly requires a vision beyond regulating only specific work arrangements for incumbent or current workers, as well as foresight for incorporating workforce development as a basic right in on-going employment relationships.

Copyright © 2020 Jonathan F. Harris and Livia Lam, PhD. Harris is an Acting Assistant Professor of Lawyering at New York University School of Law. Lam is a Senior Fellow at the Center for American Progress. For valuable feedback and conversations, the authors thank Michele Evermore, Rosa Garcia, Therese Leung, David Madland, Thomas Showalter, and Melissa Young. The authors also owe gratitude to Mark Vandenberg for his research assistance and to the California Law Review staff for their thoughtful comments and attention to detail. DOI: https://doi.org/10.15779/Z38D795B6Q.

3. See Livia Lam, A Design for Workforce Equity—Workforce Redesign for Quality Training and Employment: A Framing Paper, Ctr. for Am. Progress (Oct. 16, 2019, 9:03 AM), https://www.americanprogress.org/issues/economy/reports/2019/10/16/475875/design-workforce-equity/ [https://perma.cc/2JM9-CCP5]. ↑

4. See generally About Us, U.S. Dep’t of Labor, Employment and Training Administration, https://www.dol.gov/agencies/eta/about [https://perma.cc/2HMR-SQK6] (last visited Jul. 14, 2020). ↑

5. Farah Stockman et al., ‘They’re Death Pits’: Virus Claims at Least 7,000 Lives in Nursing Homes, N.Y. Times (Apr. 17, 2020), https://www.nytimes.com/2020/04/17/us/
   coronavirus-nursing-homes.html [https://perma.cc/CM53-3TBG]. ↑

6. Van Ton-Quinlivan & Katie Brown, To Solve Healthcare Worker Shortage, Policymakers Should Approve High-Quality Short-Term Training Programs for Federal Student Aid, Real Clear Educ. (Apr. 24, 2020), https://www.realcleareducation.com/
   articles/2020/04/24/to_solve_healthcare_worker_shortage_policymakers_should_approve_high-quality_short-term_training_programs_for_federal_student_aid_110412.html [https://perma.cc/553X-UHBL]. ↑

7. Derek Thompson, Health Care Just Became the U.S.’s Largest Employer, Atlantic (Jan. 9, 2018), https://www.theatlantic.com/business/archive/2018/01/health-care-america-jobs/550079/ [https://perma.cc/XQ3H-QKHB]. ↑

8. Home Health Aides and Personal Care Aides, U.S. Bureau Lab. Stat., https://www.bls.gov/ooh/healthcare/home-health-aides-and-personal-care-aides [https://perma.cc/AFQ9-KYCS] (last modified Sept. 4, 2019). ↑

9. Alexia Fernández-Campbell, Home Health Aides Care for the Elderly. Who Will Care for Them?, Vox (Aug. 21, 2019, 9:50 AM), https://www.vox.com/the-highlight/2019/8/21/20694768/home-health-aides-elder-care [https://perma.cc/CMD8-T7CR]. ↑

10. Kathryn Doyle, Injuries, Too Few Work Hours Prompt Home Health Aides to Quit, Reuters (May 27, 2016, 12:25 PM), https://www.reuters.com/article/us-health-aides-job-retention/injuries-too-few-work-hours-prompt-home-health-aides-to-quit-idUSKCN0YI203 [https://perma.cc/4LN3-N3H9]. ↑

11. Ctrs. for Medicare & Medicaid Servs., Are Medicare beneficiaries getting the help they need with home-based care? Data Brief #002 (2014), https://www.cms.gov/Research-Statistics-Data-and-Systems/Research/MCBS/
    Downloads/Data_Brief_002.pdf [https://perma.cc/BY4U-ZQVJ]. ↑

12. See Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–2000e-17; Rehabilitation Act of 1973, 29 U.S.C. §§ 701–797; Age Discrimination in Employment Act, 29 U.S.C. §§ 621–633a; Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101–12213. ↑

13. See National Labor Relations Act, 29 U.S.C. §§ 151–169. See generally Jonathan F. Harris, Worker Unity and the Law: A Comparative Analysis of the National Labor Relations Act and the Fair Labor Standards Act, and the Hope for the NLRA’s Future, 13 N.Y. City L. Rev. 107, 111 (2009). ↑

14. See Fair Labor Standards Act, 29 U.S.C. §§ 201–219. ↑

15. See Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651–678. ↑

16. See Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001–1461. ↑

17. See id; Patient Protection and Affordable Care Act of 2010, 42 U.S.C. §§ 18001–18122. ↑

18. See Federal Unemployment Tax Act, 26 U.S.C. §§ 3301–3309. ↑

19. Pub. L. No. 111-5, 123 Stat. 115. ↑

20. Carolyn J. Heinrich & Peter Mueser, Training Program Impacts and the Onset of the Great Recession, Semantic Scholar 36 (Nov. 2014), https://pdfs.semanticscholar.org/7a65/de88251fb5d402c145484ad2844857fd645e.pdf [https://perma.cc/YK8G-NED7]. ↑

21. Stephen A. Wandner, The Response of the U.S. Public Workforce System to High Unemployment During the Great Recession 45 (Urban Inst. Unemployment & Recovery Project, Working Paper No. 4, 2012), https://www.urban.org/research/publication/
    response-us-public-workforce-system-high-unemployment-during-great recession/view/full_report [https://perma.cc/HDE9-NMK9]. ↑

22. 29 U.S.C. §§ 3101–3361. ↑

23. Employment and Training Administration—Performance, U.S. Dep’t Labor, https://www.dol.gov/agencies/eta/performance [https://perma.cc/XT8F-89LH] (last visited May 22, 2020). ↑

24. See id. ↑

25. Real Median Personal Income in the United States, Fed. Res. Econ. Data, https://fred.stlouisfed.org/series/MEPAINUSA672N [https://perma.cc/9KZT-CZLJ] (showing real median personal income as of 2018). ↑

26. 29 U.S.C. §§ 2811–2945, repealed by Workforce Innovation and Opportunity Act of 2014, supra note 20. ↑

27. Kenneth Fortson et al., Mathematica Policy Research, Providing Public Workforce Services to Job Seekers: 30-Month Impact Findings on the WIA Adult and Dislocated Worker Programs 137 (2017), https://www.mathematica.org/our-publications-and-findings/publications/providing-public-workforce-services-to-job-seekers-30-month-impact-findings-on-the-wia-adult [https://perma.cc/R2HM-RTWD] (examining a group of study participants who received the full set of WIA core, intensive, and training services, a second group that received only the core and intensive services, and a third group that received the core services only). ↑

28. David R. Howell & Arne L. Kalleberg, Declining Job Quality in the United States: Explanations and Evidence, 5(4) RSF: Russell Sage Found. Soc. Sci. 1 (2019), https://www.jstor.org/stable/pdf/10.7758/rsf.2019.5.4.01.pdf?refreqid=excelsior%3A25e9aaffff90a4863756135e1ec5d5ee [https://perma.cc/A3KJ-MYUK]. ↑

29. Counting U.S. Postsecondary and Secondary Credentials, Credential Engine 6 (Sept. 2019), https://credentialengine.org/wp-content/uploads/2019/09/Counting-US-Postsecondary-and-Secondary-Credentials_190925_FINAL.pdf [https://perma.cc/53SD-8A76]. ↑

30. See, e.g., Philip Oreopoulos & Uros Petronijevic, Making College Worth It: A Review of Research on the Returns to Higher Education 32-34 (Nat’l Bureau of Econ. Research, Working Paper No. 19053, 2013) (on education and earnings); Christopher R. Tamborini et al., Education and Lifetime Earnings in the United States, 52 Demography 1383 (2015) (same); David M. Cutler & Adriana Lleras-Muney, Education and Health: Evaluating Theories and Evidence 1 (Nat’l Bureau of Econ. Research, Working Paper No. 12352, 2006) (on education and health); Catherine E. Ross & Chia-ling Wu, The Links Between Education and Health, 60 Am. Soc. Rev. 719 (1995) (same). ↑

31. See Mary Beth Lakin & Tara Underwood, The State of Stackable Credentials: Trends and Challenges, in 2017 The Council of State Gov’ts: The Book of the States 446, http://knowledgecenter.csg.org/kc/system/files/Lakin2017.pdf [https://perma.cc/VP8S-J4UG]. ↑

32. Thomas Bailey & Clive R. Belfield, Stackable Credentials: Do They Have Market Value? 21 (Cmty. Coll. Research Ctr., Working Paper No. 97, 2017), https://ccrc.tc.columbia.edu/media/k2/attachments/stackable-credentials-do-they-have-labor-market-value.pdf [https://perma.cc/8N67-8279]. ↑

33. See Dubravka Ritter & Douglas Webber, Modern Income-Share Agreements in Postsecondary Education: Features, Theory, Applications 1 (Fed. Reserve Bank of Phila., Discussion Paper No. 6, 2019), https://poseidon01.ssrn.com/delivery.php?ID=209124067
    117018124019072029081091006056032057016025011126055004009019113014039047008096106059033023027121004112006072044027009040084068064112064095014109091076009092018015091000078119103097125064123093003094117126088111104008003082108064096&EXT=pdf (defining an ISA in postsecondary education as “a contract in which students pledge to pay a certain percentage of their future incomes over a set period of time in exchange for funding educational program expenses in the present.”). ↑

34. See Zoe Schiffer & Megan Farokhmanesh, The High Cost of A Free Coding Bootcamp, Verge (Feb. 11, 2020), https://
    www.theverge.com/2020/2/11/21131848/lambda-school-coding-bootcamp-isa-tuition-cost-free [https://perma.cc/XL68-DQZT]. ↑

35. Vincent Woo, Lambda School’s Misleading Promises, N.Y. Mag.: Intelligencer (Feb. 19, 2020), https://nymag.com/intelligencer/2020/02/lambda-schools-job-placement-rate-is-lower-than-claimed.html [https://perma.cc/5CPZ-K8J9]. ↑

36. Angela Hanks & David Madland, Better Training and Better Jobs: A New Partnership for Sectoral Training, Ctr. for Am. Progress (Feb. 22, 2018, 12:01 AM), https://www.americanprogress.org/issues/economy/reports/2018/02/22/447115/better-training-better-jobs/ [https://perma.cc/L8ND-H9YQ]. ↑

37. See generally Jonathan F. Harris, Unconscionability in Contracting for Worker Training, 72 Ala. L. Rev. __ (forthcoming 2021) (manuscript on file with editors), https://ssrn.com/abstract=3642017 [https://perma.cc/X46C-XTEN]. ↑

38. Livia Lam & Karla Walter, Quality Workforce Partnerships: Strategies to Create a More Equitable Workforce, Ctr. for Am. Progress (Apr. 1, 2020, 11:25 AM), https://www.americanprogress.org/issues/economy/reports/2020/04/01/482466/quality-workforce-partnerships/ [https://perma.cc/3QMP-XNBM]. ↑

39. Home Health Aides and Personal Care Aides, supra note 6. ↑

40. See Samuel Estreicher, Laws Promoting Worker Training, Productivity and Quality, 9 The Lab. Law. 19, 20 (1993). ↑

41. See generally Carola Frege & John Godard, Varieties of Capitalism and Job Quality: The Attainment of Civic Principles at Work in the United States and Germany, 79 Am. Soc. Rev. 942 (2014). ↑

42. Howard Wial, The Emerging Organizational Structure of Unionism in Low-Wage Services, 45 Rutgers L. Rev. 671, 704 (1993), https://keystoneresearch.org/sites/
    default/files/Wial-Rutgers-Law-Review.pdf [https://perma.cc/KJ8S-LTRW]. ↑

43. Id. ↑

44. France: Employers Obligation to Provide Skill Development Plans or Training, Eurofound, https://www.eurofound.europa.eu/observatories/emcc/erm/legislation/france-employers-obligation-to-provide-skill-development-plans-or-training [https://perma.cc/5RWV-XVWF] (last modified Oct. 10, 2019). ↑

45. Lam, supra note 1. ↑