The Senate voted narrowly on Monday to confirm David Weil as administrator of the Department of Labor’s Wage and Hour Division (WHD). The narrow 51-42 majority followed a similarly narrow 12-10 party-line committee vote in December. The WHD is the DOL division that, among other duties, implements and enforces the Fair Labor Standards Act (FLSA) regulations and oversees various worker misclassification initiatives we have reported on previously. The Senate had not confirmed a WHD administrator since 2001, and since 2004 the position has been filled by acting leaders and a recess appointee. President Obama controversially nominated Dr. Weil, a respected Boston University professor, Harvard researcher, and DOL advisor, to fill the position in September 2013. Weil was the administration’s third nominee for the position.
Weil’s nomination drew particular attention because of his work on a May 2010 report to the DOL entitled Improving Workplace Conditions through Strategic Enforcement: Report to the Wage and Hour Division Strategic Enforcement. The report, which he principally authored, provides a number of policy prescriptions that may hint at Administrator Weil’s enforcement priorities at the WHD. For instance, the report recommends that the DOL implement a penalty policy “as a central element of deterrence,” expand both civil and criminal litigation efforts to deter noncompliance, and “uniformly and consistently” impose civil money penalties and liquidated damages. The 2010 report also claimed 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.” In particular, the report singled out several industries including agriculture, construction, health care, hospitality, restaurants, and retailers.
In December, The Wall Street Journal described Weil as “a life-long, left-wing academic with labor-union sympathies, no private-sector experience or legal training, and limited management experience.” Business associations submitted a joint letter to the Senate committee considering Weil’s nomination last year objecting “based on his writings, advocacy positions, and lack of any non-academic job experience.” The associations questioned Weil’s ability to “administer federal labor law in a fair and impartial way.”
Sen. Tom Harkin (D-IA), chairman of the Health, Education, Labor and Pensions Committee that oversaw the nomination, called Mr. Weil an “exemplary candidate” who has received strong recommendations from colleagues for his fair-mindedness. Mr. Harkin lauded Mr. Weil for his extensive study of “the most effective ways to use limited resources to increase compliance.”
We will monitor Dr. Weil’s enforcement approach in his new role and provide further updates as the WHD’s enforcement priorities under his leadership become clearer.