Hiltzik: Why did David Weil's labor nomination fail?

By Michael HiltzikBusiness Columnist

April 27, 2022 7:35 AM PT

President Biden’s nomination of David Weil as head of the Labor Department’s all-important Wage and Hour Division died on April 7 when Weil voluntarily withdrew his name from consideration.

From Weil’s vantage point, the confirmation process following his June 3 nomination had been long, drawn-out and wholly dispiriting.

Having earlier served in the job during the Obama administration, Weil came under ferocious attack by business interests and Republicans from the start, because they knew of his commitment to enforcing the labor laws on the books and the court rulings that have upheld them.

The principal reason they didn’t want me in this role is that I had a record of enforcing the law.

— David Weil

At the end, his abandonment by three Senate Democrats sealed his fate. “I could see there was no pathway” to confirmation, Weil told me recently.

The public announcement of Weil’s withdrawal came the day that Ketanji Brown Jackson won confirmation to the U.S. Supreme Court, so it went almost unnoticed.

But it deserved to be more widely marked, because the loss of his nomination points to a greater setback for many battles for worker rights — among them the fight for fair pay and the right to unionize, and efforts against wage theft and workplace discrimination.

Moreover, Weil’s loss was a blow for Biden, who is certainly the most pro-labor president in decades, perhaps ever.

Weil was superbly qualified to resume leadership of the Wage and Hour Division. He’s an expert in labor law who has served as a professor and dean of the Heller School for Social Policy and Management at Brandeis University, with a sharp eye for the multitude of ways that employers can cheat and abuse their employees, especially lower-income workers.

His 2014 book “The Fissured Workplace” explored the ways that employers had been shedding their responsibilities to employees.

The demise of Weil’s nomination is a dark development for America’s labor force. It points to the impossibility of installing any effective regulator at Wage and Hour as long as the Democratic majority in the Senate is razor-thin.

Having a strong regulator in place is especially important because the division is hopelessly and chronically underresourced.

The division’s budget, along with those of some other Labor Department agencies such as the Occupational Safety and Health Administration, “have been flatlined for more than a decade,” Weil says, not even counting the impact of inflation.

Measuring the Wage and Hour Division’s workforce in the past against its payroll today and considering the vastly greater number of workers and workplaces within its jurisdiction, Weil estimates that the division in 1940 had 64 times the capacity that it has now to investigate violations.

“That creates huge limitations on the capacity of the agency to affect the day-to-day working life of people the way President Biden wants to address,” Weil says.

That’s a problem because what looks like a rising tide of worker leverage over employers in the post-pandemic world will need help to be sustained.

“This period is very important for creating a different atmosphere in workplaces, where we move away from an environment that has been undermining workers for far too long,” Weil told me in a telephone interview.

“This moment may pass and you’ll either be left in a world with daily violations of basic workplace rights, or one where workers share in the gains of an expanding economy, which has not been the case for decades. This is an important, and fleeting, moment.”

As Weil explained to the Senate Committee on Health, Education, Labor and Pensions (HELP) during his July 15 confirmation hearing, his aim as administrator, as it was in 2014-17, would be “strategic enforcement” of labor standards “to make sure we are targeting industries and employers who are really violating the law and who erode those kinds of standards,” while reaching out to employers to make sure they understand their responsibilities.

To Republicans and their patrons in the business community, however, any enforcement of labor law is too much.

They accused him of an “open bias against small business.”

Their evidence was his advocacy of such initiatives as the expansion of overtime rights to more than 4.2 million workers who had been treated as exempt from overtime pay and tightening the classification of employees as independent contractors — the key to the business model of gig firms such as Uber and Lyft.

Weil also expanded the definition of joint employers to impose responsibilities for workplace standards on big companies that sought to shed them through subcontracting and franchise arrangements.

It should be clear that these regulations would all improve pay and working conditions for workers. But they would cost employers, so business painted Weil as the enemy. The posturing by Republican committee members sometimes sounded as though they had received their talking points intravenously from the International Franchise Assn., one of Weil’s principal critics.

“Until we started seeing nominees come here at the HELP committee,” said Sen. Roger Marshall (R-Kan.), “I’d never heard a bad word about franchises. I’d never heard disdain about them.”

This was, of course, absurd: Franchisees have been a focus of nationwide campaigns to increase the minimum wage, accusations of wage theft, and regulatory efforts to force franchisors such as McDonald’s to accept joint responsibility for their workers’ pay and working conditions for years.

As Weil observes, the labor market is one of unequal power in which employers dominate. This observation is not new, leftist or extremist. In the landmark 1937 Supreme Court case known as Parrish, Chief Justice Charles Evans Hughes (reaching back to an 1898 decision upholding safety rules for mine workers) noted that fear of being fired often forces workers to bow to working conditions they know to be unfair or detrimental to their health.

“The proprietors lay down the rules,” the earlier decision stated, “and the laborers are practically constrained to obey them.” Parrish, which upheld a Washington state minimum wage law, marked a sea change in the court’s approach to labor law. Hughes, by the way, had been placed on the high court by Herbert Hoover.

Weil traces an arc in government-protected worker rights beginning with enactment of the National Labor Relations Act in 1935 and especially the Fair Labor Standards Act in 1938. The latter installed an expansive definition of “employment,” and therefore of worker rights and employer responsibilities, at the heart of federal labor law.

The FLSA made clear, he says, that “government plays a critical role saying, these are baseline rules of the game that can be built upon, whether through unionization or more progressive employers who understand the benefits of treating their workers well” — a foundation created by standards such as the minimum wage and an understanding on when the paid workday starts and stops.

Courts began to narrow the FLSA’s reach within a few years, followed by the Republican Congress, which enacted the anti-union Taft-Hartley Act of 1947 over a veto by President Truman, a Democrat.

The 1970s brought about more erosion in the basic understanding of worker rights and employer responsibilities.

“More and more workers were in situations where they were seeing daily violations of these basic rules, from being told you punch in for your time only after you’ve prepared your work station or you punch out before you do clean-up, and you get paid at straight time, not overtime, even after 40 hours” a week, Weil observes.

“If someone had the guts to stand up and say, ‘That’s not right,’ they were fired, in direct violation of the law,” Weil says. “The persistence of those practices create an environment where no one wants to raise their head up and talk about other problems that occur because they see these violations of the most basic rights that workers are supposed to have. Forget about the risk of saying you see a health and safety problem or discrimination; for decades the riskiest thing you could do in an American workplace is to say, ‘I want to have a union here.’

“To me,” he says, “those rights are not exercised if the basic rights are being systematically violated.”

In “The Fissured Workplace,” Weil tracked how employers had been offloading their employees to labor subcontractors, temp agencies and franchisees and redesignating onetime members of their payrolls as independent contractors.

“In 1960,” he wrote, “most hotel employees worked for the brand that appeared over the hotel entrance. Today, more than 80% of staff are employed by hotel franchisees and supervised by separate management companies.”

Not long after his book appeared, the gig platforms such as Uber and Lyft emerged. Weil recognized them as new iterations of an old story.

“When the platform model came out with this whole false narrative that they were providing ‘flexibility’ without all that messy employment stuff, to me the platforms were just another form of fissuring,” Weil says. “Their idea was to control the brand, and completely divorce themselves from those responsibilities.”

In a Los Angeles Times op-ed in 2019, when Uber and Lyft were fighting a California law that would designate their drivers as employees, Weil acknowledged that some companies operated in a gray area where their workers sometimes acted like employees and sometimes like independent contractors.

“Uber and Lyft are not among those close, gray-area cases,” he wrote. “Their status as employers is really quite clear.” (Uber, Lyft and other gig companies spent immense sums to pass Proposition 22, which exempted them from the California law — though the law has been put on hold by a state judge.)

Weil’s position earned him the enmity of the gig companies. They opposed his confirmation through their now-defunct app-based Work Alliance, which tweeted during his Senate hearing that he supported “an outdated workforce model” that was shunned by gig workers who “love their flexibility and independence,” which the companies asserted Weil’s policies would “take away.”

In contrast to the gig firms’ efforts to create a hybrid employment standard that would only make permanent their abusive business models while denying workers basic employment protection, Weil has advocated extending workplace standards beyond those who are classified as employees.

In a 2020 paper, Weil and labor law expert Tanya Goldman proposed a framework of concentric circles in which basic protections such as freedom from discrimination and retaliation, and the guarantee of safe and healthful working conditions and a minimum wage, would be linked to all work, rather than to legal definitions of employment.

Further protections, including the right to overtime pay, unionization and workers’ compensation and unemployment insurance, would belong to a second circle of workers who would be presumed to hold employment status unless their employers could make a hard-and-fast case that they were independent contractors.

A third circle would encompass indisputably independent workers. They still would be entitled to unemployment and workers’ compensation, and could arrange on their own for other benefits such as retirement funding.

The virtue of this concept is that it divorces essential protections from pettifogging debates over the definition of “employee.” Weil acknowledges that some of these changes would require congressional action.

There lies the rub. Weil’s nomination foundered in large part on Senate procedure. The narrowness of the Democratic majority forced delays in a floor vote on his appointment that lasted into this year, when Biden was required to renominate him. By then, the business community had built up a head of steam against his confirmation.

It was always clear that no Republican would vote for Weil, but he might have prevailed had the Democrats remained united on his side, with Vice President Kamala Harris casting a deciding vote to break a tie.

So the opponents focused on Democratic Sens. Joe Manchin III of West Virginia and Kyrsten Sinema of Arizona, who obligingly fell into line, as did Mark Kelly (D-Ariz.), who apparently chose to shore up his cred with conservative voters instead of giving up some of it for a lost cause.

“The principal reason they didn’t want me in this role,” Weil says, “is that I had a record of enforcing the law.”