On March 30, 2022, David Weil’s nomination to head the Labor Department’s Wage and Hour Division was defeated in an unexpected 47–53 vote, marking the first time one of President Biden’s nominees was defeated in a floor vote. In an unexpected twist, three Democratic Senators — Joe Manchin, Kyrsten Sinema, and Mark Kelly — joined the Republicans in opposing the nomination. Despite the Democratic Party having control over both chambers of Congress, it is clear that anti-labor interests exert substantial power that is difficult to overcome.
Why Weil Was Opposed
By all accounts, David Weil is undeniably qualified for the role. After all, he already held the job for three years under the Obama administration as the first Senate-confirmed head of that agency in a decade, passing on a 51–42 vote. Weil is an internationally recognized expert and has written five books and published more than 100 articles on crucial labor and employment issues. Prior to becoming Dean of the Heller School for Social Policy and Management at Brandeis, he also worked as a mediator and strategic advisor to labor unions in the United States and abroad.
Most notably, and most concerning to the business lobby, Weil is a vocal critic of gig-economy companies’ classification of workers as independent contractors and of the franchising model’s role in expanding income inequality. In 2015, he issued a Labor Department guidance on worker misclassification, stating that the Fair Labor Standard Act’s broad definition of employment and intended expansive coverage for workers means that most workers are employees. Given gig economy growth and the business lobby’s success in maintaining the independent-contractor classification, such as through the $224 million spent to pass California’s Prop 22 in 2020, Weil’s strong leadership on this cause could have been a timely intervention to reverse this trend. Weil also employed a “strategic enforcement” stance while leading the Division, doubling the percentage of proactive, directed investigations to improve labor-standard compliance. Finally, Weil is the foremost proponent of the “fissured workplace” theory, finding that the outsourcing of work — such as through franchising — disadvantages workers, erodes benefits, and exacerbates income inequality.
Unsurprisingly, Weil’s nomination was opposed by corporations and business groups such as the U.S. Chamber of Commerce, International Franchise Association, National Restaurant Association, Uber, and Lyft, who labelled him a “radical academic” whose “biased advocacy and unbalanced approach” would doom businesses. Restricting the use of the independent-contractor classification, critics argue, would hamper the ability for “scrappy entrepreneurs” and small business owners who are often women and minorities to avoid “Big Labor tyranny.” Groups like the International Franchise Association were especially concerned with Weil’s stance that there should be measures to hold franchises responsible for actions taken by franchisees under the joint-employer standard. Such heightened liability, IFA warned, would kill franchising as a practicable expansion model. Thus, they lobbied vigorously against Weil’s nomination, arguing that he would harm small businesses.
The Opposition Was Expected, But the Defeat Was Not
From the beginning, it was clear that this would be a close vote. Since Biden first nominated Weil to the position last June, his nomination was stalled in committee, had to be re-nominated in January, and squeaked through the Health, Education, Labor and Pensions Committee on an 11–10 vote due to Senator Rand Paul’s absence. However, the defeat on the Senate floor came as a surprise. After all, the Senate leadership typically does a head count to ensure the votes are there before proceeding. In other cases when the Biden administration lacked the votes, such as with Sarah Bloom Raskin (Federal Reserve), Saule Omarova (Office of the Comptroller of the Currency), and Neera Tanden (Office of Management and Budget), they pulled the nomination instead of allowing the nominee to suffer from a negative vote on the record.
Even business groups were surprised by the defeat. Though accounts vary, theWashington Free Beacon reported that Manchin, Sinema, and Kelly allegedly decided to join the Republicans at the last minute. Brandeis professor Robert Kuttner deduced that Sinema broke first, followed by her fellow Arizona senator Mark Kelly (who is facing a close re-election), and finally joined by Manchin (who had voted in favor of Weil in 2014). Regardless of the series of events, the defeat is a major blow to the Biden administration’s labor agenda and a cruel loss for Weil, whose biggest fault is having “the temerity to try and enforce the nation’s wage and hour laws.”
What’s Next for the Biden Administration
The Biden administration positioned itself to be strong labor advocate, but the inability to secure Weil’s nomination signals a doubtful future. The administrator of the Wage & Hour Division holds a crucial role in leading the vigorous enforcement of federal wage and overtime pay requirements and protecting workers’ rights. The role is more critical than ever as the labor market experiences historic changes due to the pandemic. However, with this defeat, next steps for passing and enforcing pro-labor protections are unclear.
The failure of the Weil nomination is unfortunately just one of many in a long series of disappointments over the past few decades for labor and workers’ rights. From the unsuccessful veto of the Taft-Hartley Act (which allowed states to pass right-to-work legislation) to the failure of the Employee Free Choice Act (which would have strengthened union power), workers and unions have faced defeat even when the Democratic Party has held power in Washington. This time, as in the past, conservative Democrats have prevented the more progressive wing of the party from advancing a pro-labor agenda, and their public willingness to do so has also provided cover for other Democrats to refuse firm commitments on legislation, thus gumming up pro-labor progress. At a time when unions across the country are achieving wins despite employer resistance and hostile environments, the inability for the Democratic party to organize itself and confirm Weil’s nomination when it controls the Senate is another major loss for American workers.