Weil, That Was a Close One!

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David Weil, the Biden administration’s pick to be the administrator of the Department of Labor’s (DOL) Wage and Hour Division, was rejected by the Senate Wednesday evening when lawmakers voted 47-53 against invoking cloture on his nomination. Democratic Senators Kyrsten Sinema and Mark Kelly of Arizona and Joe Manchin of West Virginia crossed party lines to oppose him.

Sinema, Kelly, and Manchin will likely be excoriated by liberal groups and unions for the vote, but it was the right call. As CEI has pointed out previously, Weil, who served as administrator during the Obama administration, doesn’t seem to think that the laws he would have been charged with enforcing go far enough. For example, Weil is on record saying that regulators charging businesses with workplace violations shouldn’t have to bother with niggling details like whether the company actually employs the worker in question.

“Traditional enforcement strategies assume that enforcement efforts should focus at the level where violations are occurring,” Weil stated in his 2014 book, The Fissured Workplace. This is outdated thinking, he argued. Regulators should instead have a “top-focused enforcement strategy” that looks at the “industry-driving conditions,” even if this results in charges against a company that “differs from the employer of record.”

Or to put it more simply, the mere fact that a company didn’t employ the worker whose rights were allegedly violated does not mean that the company shouldn’t be held liable. Not having to prove that a business was a worker’s employer would certainly have made casework a lot easier for DOL’s investigators.

Why do this? The trend toward employers hiring contractors instead of traditional employees—that’s what he means by “fissured workplace”—has been an obsession of Weil’s. Most federal regulations regarding workers’ wages, benefits, and collective bargaining do not apply to contractors. Legally, they are considered to be independent businesses. Many companies use contractors heavily or even exclusively, in part because it saves on labor costs. It’s the economic model for most “gig economy” companies. And many workers prefer contract work—“freelancing”—as well since it gives them the freedom to work when they want and not get tied down to one job.

That is extremely frustrating for both unions and regulators because it puts a large section of the workforce out of reach for them. During the Obama years, Weil attempted to fix this by just unilaterally, declaring that all workers were employees. “[A]pplying the economic realities test in view of the expansive definition of ’employ’ under the [Fair Labor Standards] Act, most workers are employees under the FLSA,” DOL announced in a 2015 guidance letter.

Weil conceded in The Fissured Workplace that courts have not supported this, having instead “repeatedly defaulted to common law principles based on master-servant relationships that require reliance on control.” Annoyingly, 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.”

Weil also believes that businesses not employing workers should not prevent them from accepting unions. In his book he favorably quotes a UCLA scholar’s argument, “The right question to be asking is not ‘who is an employee?’ but instead ‘to what extent should firms be able to choose organizational structures that preclude unionization by avoiding having employer-employee relationships at all?’”

Notably absent from The Fissured Workplace and Weil’s other writings is the question, “What do the workers themselves actually want?” Nor is there much thought given to finding that out. Weil just assumes that they want to work as employees and join unions. The idea that the fissured workplace is as much the result of workers’ desire for flexibility was not considered. As Wage and Hour administrator under Obama, Weil viewed it as his job to push workers into unions for their own good and would likely have done the same the thing under the Biden administration. Thanks to Republican lawmakers and Senators Sinema, Kelly, and Manchin we now instead have a chance for a Wage and Hour Division that will enforce the law as written.