Weil Is a Poor Choice to Lead Labor Department’s Wage and Hour Division

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Lawmakers should reject President Biden’s choice to serve as administrator of the Department of Labor’s Wage and Hour Division, a major federal law enforcement agency. Weil has a history of rejecting the existing common-sense interpretations of the rules he would be charged with enforcing and replacing them with radical expansions. He has stated that the Wage and Hour Division should be allowed to pursue cases using the legal standard of guilty until proven innocent and advocated for other rules that would seriously disrupt major sectors of the economy, such as the franchising industry and the still-emerging gig economy.

The “path forward,” he argued in his 2014 book, The Fissured Workplace, “requires public agencies to change the way workplace policies are implemented and enforced so that they create incentives for industry and businesses structures that can lead all parties … to play a role in reducing risks and complying with established laws.” 

That is a recipe for bureaucracy run amok. It should be concerning to anyone who believes the government should fairly and evenly enforce its laws and that individuals should be allowed to pursue the work arrangements that they feel are best for them.

Under Weil’s previous tenure leading the Wage and Hour Division in 2016, the agency expanded the definition of “joint employer”—in a rule since repealed—to determine when a company can be held legally liable for workplace violations by another company. Weil replaced the traditional requirement that a company had to have “direct control” over another company’s employees to be held liable with a vaguer “indirect control” standard—a term that had no clear meaning under the law and potentially threatened the entire franchising industry.

In books, scholarly papers, and op-eds, Weil has repeatedly decried the so-called “fissured workplace”—the fact that new work arrangements where workers are classified as contractors have displaced traditional direct, long-term employment in many sectors. According to Weil, this as not an evolution in the nature of work that can benefit both sides, but a tragedy that must be rectified because it has resulted in a decline of union membership.

In a 2020 coauthored paper, Weil lamented that courts “have repeatedly defaulted to common law principles based on master-servant relationships” to define employer/employee relationships. In other words, applying the law as it has always been understood is problematic because common law principles obscure the “complexity of modern workplace relationships.” His alleged solution is to reinterpret the Fair Labor Standards Act to make all workers presumptively employees.

Weil has argued: “[E]mployment would be the default, but rebuttable, presumption for all workers, so unless employment is disproven for a particular set of workers, this set of workplace policies would apply.” In other words, the Wage and Hour Division could charge a company with a violation and the legal burden of proof would be on the accused.

Weil would likely also advocate for the federal government to adopt an expanded version of California’s ABC test for employment. This would prohibit companies from hiring contractors to do anything related to the company’s usual course of business and only allow workers to do contract jobs if that was their main way of earning a living.

So-called gig economy businesses like rideshare companies Lyft and Uber, which rely on short-term contract workers, would be forced to drop their current business model and transform themselves into traditional taxicab companies in order to remain in business. Never mind that it was being an alternative to taxis that allowed them to take off in the first place. Individual workers, meanwhile, could no longer do gig economy jobs or other side hustles to earn money when they need to; they could only do those jobs full time.

A Wage and Hour Division administrator should enforce the law, not manipulate it to get some desired ends—which could be especially damaging at a time when the economy is still trying to recover from the COVID-19 crisis.