David Weil, a Brandeis University professor and President Biden’s nominee to head the Department of Labor’s Wage and Hour Division seems to believes that protecting workers’ rights is so important that authorities should be able to pursue violations in cases where the business doesn’t merely claim to be innocent, but where it claims it isn’t even the worker’s employer.
It’s one thing for an academic to hold out-there views. It’s another thing for the head of a department’s major federal law enforcement division to hold that federal agencies shouldn’t have to prove the things they allege. He already has a reputation for pushing the legal envelope. Weil served as President Obama’s Wage and Hour director from 2014 to 2017 and “drew acclaim from unions and the plaintiff’s bar, but spurred clashes with businesses groups over what they viewed as his aggressive, punitive enforcement actions,” Bloomberg noted.
Weil, who has a Senate hearing today before the Health Education, Labor, and Pensions Committee, has been vocal in recent years about these views. He’s written articles, books, and studies on what he terms the “the fissured workplace” and the need to completely rethink U.S. law to bolster worker rights. The basic premise of his stated views is that workplace laws like the Fair Labor Standards Act (FLSA) should be reinterpreted to create a “presumption of employment” to prevent workers’ rights violations from going unpunished. That way, federal agencies could charge ahead with punishing businesses for violations of the law without having to prove that the businesses ever employed the workers in the first place.
“The FLSA, for example, says ‘it shall be unlawful for any person… to discharge or in any other manner discriminate against any employee because such employee has filed any complaint.’… This language also precludes the employer from defending itself by arguing there is no employment relationship, which is often a labor-intensive investigation that can detract from the merits of the claim,” Weil argued in a February 2020 working paper for the Institute for New Economic Thinking.
Weil is a major advocate of unionization. Like many who favor that, he isn’t big on the idea of letting the individual workers decide for themselves whether they want to be in one. He is more concerned with making unions as large and as powerful as possible. This has been a big enough struggle for unions in recent decades, their membership as a percentage of the workforce having dropped to 10.8 percent, almost half the rate in 1983. Reversing that decline has become even harder thanks to the rise of the so-called “gig economy, which jobs like ridesharing, whereb7 people do short-term contract work as freelancers rather than as full-time employees.
Contract workers are legally considered to be separate businesses and therefore are not directly covered by most workplace laws such as the FLSA or the National Labor Relations Act and don’t benefit from things like the minimum wage or overtime. But it also means the contractors can work quickly and flexibly, something employees cannot do because employers must track and control worker hours in order to comply with minimum wage and overtime laws. It is true that some employees are misclassified as contractors by unscrupulous employers who want to get around those laws, but in many cases workers enjoy the freedom afforded by contract work and don’t want to lose it. Finding a better, clearer way to distinguish between traditional employment and contract work was something the Trump administration attempted to do but the Biden administration has abandoned.
Weil’s solution is to reinterpret the existing language of the FLSA to make everyone presumptively an employee. “The importance of this set of rights, protections, and responsibilities is indicated by the presumption of employment. That is, employment would be the default, but rebuttable, presumption for all workers.” Accused businesses would have to “disprove” that somebody workers for them.
He concedes that courts have not supported this, having instead “repeatedly defaulted to common law principles based on master-servant relationships that require reliance on control.” In other words, courts tend to ask the reasonable question “Is the worker really acting under direction of the manager?” Weil argues that this common law principle obscures the “complexity of modern workplace relationships.”
If the law hasn’t kept up, then shouldn’t it be rewritten instead? No, argues Weil. He rejects, for example, the idea of creating new a category of workers halfway between employee and contractor. Exactly how he intends to make his expanded definition of employment work if new legislation isn’t involved (and courts have traditionally rejected his reading of law) is unclear.
But then careful attention detail seems not to be Weil’s thing. For example, he notes in the 2020 paper that the NLRA does not cover agricultural workers. He claims this is because that sector was “predominated by people of color” and therefore racial discrimination “played a role in their exclusion.” The historical data doesn’t support that. The Department of Agriculture’s census archive shows that in 1935, the year the NLRA passed, there were 12.4 million farm workers in the U.S. Of those, 10.5 million were white and only 1.9 million were African American. The real reason why agricultural workers were excluded from the NLRA was because the overwhelming number of those workers, both white and black, were immediate family members of the owner.
Should Weil actually become director the Department of Labor’s Wage and Hour Division, it is likely he’ll push through his reinterpretation of the FLSA and other laws and end up spending a lot time in courts defending it. A better plan to help workers than forcing them into the role of employees might be to maximize their freedom under the law.