United States: Senate Panel Considers Wage And Hour Nominee

While the federal government closed on Tuesday due to inclement weather, the Senate Committee on Health, Education, Labor and Pensions (HELP) forged ahead with its hearing to consider the nomination of David Weil to be the next DOL Wage and Hour Division (WHD) Administrator. This position – which has been vacant for several years – is an important one. The WHD will be the sub-agency charged with enforcing the recently-issued "companionship" rule extending Fair Labor Standards Act (FLSA) protections to home healthcare workers, as well as the DOL's many worker misclassification initiatives.

As previously discussed, Dr. Weil has spent the vast majority of his career in academia. Sen. Warren (D-MA) noted in her introduction of Weil that he has taught at Boston University's School of Management for two decades, and currently serves as the co-director of the Transparency Policy Project at Harvard's JFK School of Government. While a professor, Weil was the principal investigator on a report for the DOL: Improving Workplace Conditions through Strategic Enforcement: Report to the Wage and Hour Division Strategic Enforcement, which provides insight on Weil's priorities as well as his approach to wage and hour enforcement. According to his report, "Problems facing particularly vulnerable workers are concentrated in a subset of sectors that require focused attention by the WHD." His recommendations for WHD strategic enforcement include: "industry-focused deterrence; penalty policy as a central element of deterrence; expanded litigation to prevent noncompliance; and enhancing deterrence through transparency."

Due to a series of scheduled Senate votes, panel questioning of the nominee was decidedly brief. Committee Chairman Tom Harkin (D-IA) said that the WHD was "allowed to atrophy" during the last administration, but claims that the current administration has "beefed up enforcement and revitalized" this agency due, in part, to Weil's recommendations.

Ranking Member Lamar Alexander (R-TN) emphasized that the head of the WHD will oversee more than a dozen major employment laws, as well as over 1,800 employees in 54 field offices. Alexander said it was his understanding that Weil "has never supervised more than 15 or 20" employees in an academic research setting, and therefore questioned whether Weil has the requisite management skills to serve as Administrator.

Alexander said he was interested in hearing Weil's views on enforcing current law. Specifically, he said he would not support a candidate that intended to inappropriately "stretch" current law to redefine what constitutes an employer and employee "to reach beyond" franchise owner definitions to penalize the industry. He said he would also disfavor a candidate whose strategy of enforcement would focus on "preconceived targets set in Washington," or who pursues a goal of increasing unionization without considering the desire of employees themselves.

Sen. Alexander noted that one of Weil's research papers "seems to suggest" that if the WHD creates a system that enables employees to more readily come forward with complaints, these employees might also be more likely to join a union or take steps in that direction. Alexander asked Weil whether he views the WHD "as a way to promote union organization." Weil responded that he did not, and that the purpose of the article at issue was to discuss the use of employee voice in the workplace. According to Weil, the "point was to describe the use of rights workers are afforded by existing labor and workplace laws," and whether they feel free to exercise those rights. Upon additional questioning, Weil said he would be fine with providing information about the right not to join a union as well.

Finally, Alexander noted that one of Weil's papers focused on "rethinking" basic labor laws. Weil responded that his role as an academic is different from that required of someone charged with enforcing existing laws.

Sen. Tim Scott (R-SC) asked Weil about his perceived preference for targeting parent companies instead of franchise owners. Weil explained that his concern is not with the franchise model, but rather with employers using franchising improperly as a means of subverting the law.

Weil discussed the principles that would guide him as Administrator. Specifically, he said he would make sure the laws entrusted to the agency are administered "efficiently, fairly, transparently, and rigorously." One goal of his enforcement strategy would be to address businesses that obtain competitive advantages by not complying with the law.

Sen. Harkin noted that there has been a lot of attention paid to Weil's report. He asked Weil why he believes strategic enforcement "is the right or most effective method" of enforcing wage and hour laws. Weil responded that there is "a basic problem of limited resources," and that the agency needs to set priorities.

With respect to misclassification, Weil said he supports studies to determine whether independent contractors are being classified legitimately. Towards that end, the Agency has developed a worker classification survey that will likely be used to formulate the long-anticipated "Right-to-Know" rule.

An archived webcast of the hearing can be found here. The Senate will reconvene for an executive session to vote on Weil's nomination on Wednesday, December 18.

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