Senate Confirms Controversial New Wage and Hour Administrator

By Ilyse Wolens Schuman

The revised Senate rule allowing certain presidential nominations to be confirmed with a simple majority vote – previously ridiculed as the “nuclear option” – enabled the Senate Monday to confirm David Weil as the next administrator of the U.S. Department of Labor’s Wage and Hour Division (WHD).

The vote was 51-42 in favor of his nomination.

President Obama nominated Dr. Weil to fill the long-vacant position in September 2013. Weil was the principal investigator on a report submitted to the Department of Labor in May 2010. The report, Improving Workplace Conditions through Strategic Enforcement: Report to the Wage and Hour Division Strategic Enforcement, offers significant insight into Weil’s priorities and his approach to enforcement of wage and hour laws.

Insight into new administrator’s priorities?

Among other recommendations, the report suggests that the Department of Labor “clarify[] the boundaries of employment responsibility,” create industry-focused deterrence measures, implement a penalty policy “as a central element of deterrence,” expand litigation to prevent non-compliance, and enhance deterrence through greater transparency efforts.

The report also attributes increased workplace law violations to the “fissuring” of the workplace, which has been accomplished, the report states, through “subcontracting, franchising, third-party management, changing workers from employees to self-employed contractors, and related contractual forms that alter who is the employer of record or make the worker-employer tie tenuous and far less transparent.”

In addition, the report claims the decline of private-sector unionization “reduces the capacity of regulators to oversee the workforce — an implication of union decline that is often overlooked in policy debates.”

Questions raised during Senate hearing

During a Senate committee hearing held last December to consider Weil’s nomination, Sen. Lamar Alexander, R-Tennessee, expressed concern that Weil might inappropriately “stretch” current law to redefine what constitutes an employer and employee “to reach beyond” franchise owner definitions to penalize the industry. Alexander said he would also disfavor a candidate who would pursue a goal of increasing unionization without considering the desire of employees themselves.

Weil’s work background was also the subject of criticism during the Senate hearing. Weil has spent nearly 30 years in academia. Some at the hearing questioned his ability to regulate businesses when he himself lacks work experience in a traditional business setting.

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The Wage and Hour Division is the apartment of Labor sub-agency that will implement and enforce, among other regulations, the new companionship exemption rule that applies the Fair Labor Standards Act (FLSA) to domestic service workers. The WHD also oversees various worker misclassification initiatives.

Whether Weil’s views as an academic will carry over in his new position remains to be seen.

This was originally published on Littler Mendelson’s Workplace Policy Update blog© 2014 Littler Mendelson. All Rights Reserved. Littler®, Employment & Labor Law Solutions Worldwide® and ASAP® are registered trademarks of Littler Mendelson, P.C.

Ilyse Schuman

Ilyse W. Schuman is a shareholder in the Washington, D.C. office of Littler Mendelson. She provides strategic counsel and representation to clients on a broad array of workplace issues and developments in Congress and executive branch federal agencies.

She is a member of the firm's Government Affairs practice and works with employers in multiple industries, including trade associations. She also leads the firm's Legislative and Regulatory practice.

A former top congressional staffer and policy advisor, Ilyse worked on the Senate Committee on Health, Education, Labor and Pensions from 2001 to 2008, serving as minority staff director and chief counsel. She began her work in the Senate as chief labor counsel for Senator Mike Enzi on the Subcommittee on Employment, Safety and Training, where she led legislative and oversight activities.

After leaving the Senate, Schuman joined a leading trade association of electro-industry manufacturers as vice president, where she served as managing director of the Medical Imaging and Technology Alliance, the collective voice of medical imaging equipment manufacturers. Additionally, she served as in-house counsel at a manufacturer and market and technology leader, where she advised the company on human resource matters. In law school, she was a member of the Journal of Law and Policy in International Business.