Labor/Employment Scorecard Now Includes Votes on David Weil to Head DoL’s Wage and Hour Division

In our scorecard of the United States Senate’s labor and employment votes, CEI’s has included voting on the movement of David Weil’s confirmation to be Administrator of the Wage and Hour Division of the Department of Labor.

Strictly Partisan Confirmation

In vote # 110, a strictly partisan vote of 51-42 on April 28, 2014, the U.S. Senate confirmed controversial professor David Weil to administer the Department of Labor’s Wage and Hour Division, which implements such policies as overtime, prevailing wages, family and medical leave, migrant worker programs, and minimum wage. Seven Senators did not vote.

Nuclear Option Controversy

The controversy over Weil’s nomination was inflamed by the “nuclear option,” a new strong-arm tactic implemented by Majority Leader Harry Reid (D-Nev.) for the first time this Congress to prevent filibustering lightning-rod personnel. The nuclear option effectively lowers the vote threshold for approving nominees to a simple Senate majority (51 votes) from the 60 votes previously needed. Thus on vote # 109, the cloture motion to end any filibuster, the same strictly partisan 51-42 vote manifested the deep division on Weil’s propriety.

Views of Senator Lamar Alexander, Top Republican on the Labor Committee

Senator Lamar Alexander, the top-ranking Republican on the jurisdictional U.S. Senate Committee on Health, Education, Labor and Pensions (HELP Committee), explained in a statement that, “To fill this position, we need someone who can be trusted by both employees and employers to enforce the law without bias; and we need a qualified manager. Unfortunately, I think Dr. Weil fails to meet that standard.”

Senator Alexander added, “I cannot support a nominee who has advocated expanding current law beyond what Congress intended. Nor could I support a nominee who is a proponent of targeting industries and employers who use certain business models rather than being responsive to complaints of breaches of the law. Or one that has the underlying goal of increasing unionization, without regard to the desires of employees themselves.”

“Dr. Weil’s writings suggest he may have a bull’s eye on industries that use subcontracting and franchising,” Alexander said.

Confirmations Rare for Wage and Hour Administrators

In an interview, Littler Mendelson attorney Tammy McCutcheon recollected that with her confirmation in 1991 she was the last nominee to be confirmed as Administrator to the Wage and Hour Division.  Jackson Lewis attorney Paul DeCamp, who followed Ms. McCutcheon, was recess-appointed in 1996. As another example, Seyfarth Shaw attorney Alex Passantino served as Acting Administrator in 2008 and 2009.

The position has been completely vacant under President Obama. The Washington Times explains, “Mr. Obama’s first selection, Lorelei Boyland, withdrew her name amid Republican opposition over her involvement in a state ‘wage watch’ program in New York, a first-of-its-kind program that deputized unions and advocacy groups to visit private businesses and report wage violations to the government. The administration yanked a second nominee, Leon Rodriguez, in 2011.”

Confirmation Hearing Less Than One Month After Nuclear Option Implemented

Weil was nominated by President Barack Obama in September of 2013, and “The Senate Health, Education, Labor and Pensions Committee held Mr. Weil’s confirmation hearing on Dec. 10, less than a month after the rule change,” The Wall Street Journal noted. That rule change is the “nuclear option” strong-arm tactic that took effect in November of 2013.

David Weil: Event Planner?

Mr. Weil is described in The Washington Times as “a fellow and co-director of the transparency project at the John F. Kennedy School of Government at Harvard. According to his ethics form, Mr. Weil earned more from the AFL-CIO than he did from Harvard… ‘Dave Weil did limited work with the federation in helping to facilitate two senior staff retreats but did not work on any substantive issues for the federation,’ AFL-CIO spokeswoman Amaya Smith said in an email.” Mr. Weil is also Boston University professor of public policy.

Is it surprising that a policy expert did not work on any substantive issues? Is it curious that, instead, for his client AFL-CIO, Mr. Weil merely did limited work as an event planner (facilitator)? Would you think facilitation of two staff retreats more lucrative than serving as a fellow and co-director at Harvard?

Recusal After Lucrative AFL-CIO Contract Work?

Will Mr. Weil recuse himself regarding AFL-CIO matters, since the AFL-CIO was a former client?

“The nominee disclosed $24,000 in consulting fees from the AFL-CIO since last year in a recent government ethics filing reviewed by The Washington Times. It’s unclear whether the labor consulting deal will require Mr. Weil to get a waiver from President Obama’s ethics rules, which bar appointees from participating in particular matters involving former clients or employers. The AFL-CIO spends millions of dollars lobbying federal agencies, including the Labor Department, on minimum wage and other issues.”

Apparently Mr. Weil did not cease consulting for his client AFL-CIO even during his confirmation process, since he “wrote a letter to a Labor Department ethics official saying he plans to cease all of his consulting work when confirmed. [Emphasis added.]”

“I will not participate personally and substantially in any particular matter involving specific parties in which a former client of mine is a party,” Mr. Weil wrote.

New Confirmation Paradigm: Who Cares, We Have the Votes!

As recently as 2013 it could have been considered textbook procedure NOT to publish a book—a polemic text at that—in the midst of a contentious confirmation battle.

In 2014, Ivy League professor Weil published his book, The Fissured Workplace: Why Work Became So Bad for So Many and What Can Be Done to Improve It.

A Nose-Thumbing

In at least two ways, Weil’s book publication is a nose-thumbing to the minority’s Senators.

First, it shows a brazen distain for the U.S. Senate’s tradition of nominees coming before them on bended knee to be virtually knighted—at least, as Ambassador Mary Mel French explains in United States Protocol: The Guide to Official Diplomatic Etiquette, to be afforded the title “The Honorable,” if not “Sir” or “Dame.” “In Washington, as Betty Beale, longtime social columnist and observer of the Washington social scene, bluntly puts it, ‘The title ‘Honorable’ has nothing to do either with honor or character,’” recounts Mary K. Mewborn in

It is literally the case that the left in the U.S. Senate have lowered the threshold of “Honorable” in the United States to 51 votes from 60 votes.

Second, the primary thrust of Weil’s book comes down to a wholehearted embrace of the biggest economic failure in United States history. What is the worst chapter in the U.S. economic history? The Great Depression, of course.

High-Wage Doctrine

The “High-Wage Doctrine” is the key culprit in the Great Depression.

The high-wage doctrine, embraced by Weil throughout his book, advocates keeping wages high even during an economic downturn.

In contrast, the high-wage doctrine is cited as the cause for America’s darkest economic days, the Great Depression.

Under the high-wage doctrine, employment suffers. The Congressional Budget Office estimates that Senator Tom Harkin’s bill, pushed by President Barack Obama, to hike wages to a minimum $10.10 per hour would kill 500,000 jobs.

People forget or never learned the economic lessons of the 1920s versus the 1930s.

In 1921, recession pushed unemployment up to 11.7 percent. When wages fell 18 percent, recovery resulted in 1922 and unemployment improved five points to 6.7 percent—a huge success for the free market—after which America enjoyed the Roaring Twenties when unemployment averaged 3.6 percent.

In 1929, recession pushed unemployment up to 9 percent. Rather than allow a market correction with falling wages, President Herbert Hoover fostered the fallacy that unemployment results from a lack of spending and evaporates with governmental spending and propping up of wages. When President Franklin Delano Roosevelt was inaugurated in March of 1933, unemployment had reached over 28 percent—a disastrous failure of Hoover’s high-wage doctrine.

Minimum Wage

Mr. Weil supports increasing the minimum wage.

About 80 percent of economists surveyed recognize the job-killing reality of minimum wage hikes and 85 percent of econometric studies demonstrate this job-killing phenomenon.

James Buchanan, 1986 Nobel laureate in economics, famously wrote in The Wall Street Journal on April 25, 1996:

[N]o self-respecting economist would claim that increases in the minimum wage increase employment. … Fortunately, only a handful of economists are willing to throw over the teaching of two centuries; we have not yet become a bevy of camp-following whores.

The Hill writes, “Even worse from Big Labor’s standpoint, recent polling has shown support for a minimum wage hike implodes once respondents consider job loss. A recent Bloomberg News National Poll found 57 percent believe it is “unacceptable” to risk 500,000 jobs…”

Given his support for a minimum wage hike, Mr. Weil will have a hard time explaining his focus on job creation.

To see how your senator voted, see the Congressional Scorecard here (VOTES 109 and 110).