Today, Senator Richard Burr (R-NC), Ranking Member of the Senate Health, Education, Labor and Pensions (HELP) Committee, opposed advancing the nomination of Dr. David Weil to serve as Administrator of the Wage and Hour Division of the Department of Labor.
The HELP Committee previously voted on Dr. Weil’s nomination in August 2021, but failed to favorably report the nomination on an 11-11 vote. The nomination advanced today on a narrow 11-10 vote, despite previous bipartisan opposition.
Senator Burr Statement for the Record:
“I am opposed to the nomination of Dr. David Weil, and encourage my colleagues to oppose his nomination as well.
“We are currently in the midst of some of the greatest economic uncertainty on jobs, inflation, and energy that this country has faced since the 1970s. Inflation surged to 7 percent in December, its highest rate in 40 years, thanks to extravagant and haphazard expenditure. And despite profligate amounts of spending, Covid tests remain unavailable to a vast majority of Americans and schools remain closed to far too many students in need of academic and personal growth. Inflation has reduced take home income and imposed a tax on the working class.
“The Biden Administration has re-nominated Dr. Weil despite bipartisan opposition all last year. This is an individual who seems to have made it his life’s work to shackle innovation, burden small employers, and implement policies that harm workers.
“As the old adage instructs, ‘if someone tells you who they are, believe them.’ And Dr. Weil has been telling us who he is throughout his career. As Administrator under the Obama Administration, he was the chief architect of the anti-growth policies and regulations resulting in one of the weakest periods of economic growth in history. Dr. Weil’s tenure at the Wage and Hour Division became notorious for burdening business with sweeping restrictions on the use of independent contractors, a new “joint employer” edict that imposed crushing operational and legal costs on small companies, and an overtime rule that blatantly ignored plain statutory text. Dr. Weil has a clear record of hostility to franchising, independent contracting, and the gig economy-in short any business model innovative enough to fit in a modern economy. These models provide flexible employment to millions, and are an engine of economic growth and mobility for many women and minority entrepreneurs.
“As a tenured professor at Brandeis University, Dr. Weil scapegoated the franchise, supply-chain, and subcontracting industries for the creation of a so-called “fissured workplace.” Dr. Weil is on record asserting that the flexibility that comes with owning one’s business or participating in the gig economy is responsible for a lack of access to long-term career opportunities and worsening work conditions. As Administrator, he used government enforcement resources to target certain industries in order to lend credibility to his academic theories. One industry he seemed intent on targeting was the natural gas industry, a foreboding prospect as Americans face the certainty of higher heating costs this winter.
“Dr. Weil took particular steps to sanction gas companies with punitive fines and liquidated damages. In a press release announcing enforcement measures against a natural gas company operating in West Virginia, Dr. Weil referred to the natural gas industry as “one of the most fissured industries” that is “ripe for noncompliance.” If confirmed, working Americans should be prepared for even greater heating costs this winter, as Dr. Weil uses government resources to intimidate, target and harass certain industries in accordance with his radical theories.
“Dr. Weil has consistently scapegoated franchising, the primary engine of economic mobility for lower income families, for everything ailing the labor market. As Administrator Dr. Weil avoided even the most basic transparency in his actions. Instead of following the law to provide for notice-and-comment rulemaking or even soliciting feedback from stakeholders, Dr. Weil issued interpretation letters attempting to implement via executive fiat what he could not achieve by legislation, or even rulemaking. Dr. Weil used an interpretation letter to dramatically expand joint-and-several liability to franchisors that exert little to no direct control over the work rules of their franchisees. When asked by my staff why he failed to submit such controversial, substantively new enforcement policies to notice-and-comment rulemaking, Dr. Weil evaded. The real-life consequences of these policies were calamitous, resulting in franchise businesses paying $33.3 billion a year in costs, a 93 percent increase in frivolous lawsuits, and the loss of 376,000 jobs over 2016-2018 according to the International Franchise Association.
“Dr. Weil issued yet another edict to stakeholders all but obliterating the clear distinctions between an employee and an independent contractor. In 2020, nearly 30 percent of Americans were self-employed according to a Gallup survey. Yet, Dr. Weil wants to destroy the ability for these Americans to work for themselves and set their own schedules. These actions stand in sharp contrast to the joint-employer and worker classification rules promulgated under the previous administration, which were finalized only after conducting rigorous economic impact analyses and soliciting comments from numerous stakeholders. As Americans continue to struggle in today’s economy, we cannot afford to confirm Dr. Weil.
“Under Dr. Weil’s tenure, the Wage an Hour Administration promulgated a rule grossly overstepping its authority to set overtime eligibility. A federal court later struck down the rule, noting in its opinion the brazenness with which the Wage and Hour Division failed to honor the plain language of the Fair Labor Standards Act (FLSA) by supplanting FLSA’s command to consider workers’ job duties in addition to their minimum salary level. The results of such a misguided policy were stark: the Final Rule would have knocked salaried workers back to hourly wage earners, stripped them of their benefits, and prevented the advancement and economic mobility of those working to gain new skills. Thankfully the court stopped that from happening.
“Additionally, serious questions have been raised about Dr. Weil’s work with the Massachusetts Attorney General’s Office regarding legal action against Uber and Lyft. At his confirmation hearing, Dr. Weil contended that disclosure of documents from his work with the Massachusetts Attorney General’s Office is dependent upon the Department of Labor. Yet despite numerous production requests of Dr. Weil’s documents and correspondence, the Department has thus far failed to comply with legitimate oversight requests. I am concerned such stonewalling and lack of transparency, stymying Congressional oversight, will continue if he is confirmed.
“I urge all of my colleagues who value economic stability and job growth to vote against Dr. Weil’s nomination and tell the President to send us someone that can garner bipartisan support. I also wish to submit two documents to the record, one a letter from a coalition of independent business groups, and another from a taxpayer advocacy group, warning of the consequences of Dr. Weil’s nomination.