Weil Wage and Hour nomination fails, agency at crossroads

The nomination of controversial former Wage and Hour Division (WHD) Administrator David Weil to return to his old job has ended in defeat. Weil failed to receive an affirmative vote from the Senate and subsequently withdrew himself from consideration. He did not win the support of three Democrats (Joe Manchin, Mark Kelly, and Krysten Sinema) and all 50 Republicans.

Weil’s nomination was always considered questionable, and President Joe Biden’s decision to name him was regarded more as a concession to the Progressive wing of his party than an attempt to reseat him. Bipartisan opposition to Weil was voiced both prior to and during the nomination process as a result of his contentious term as WHD administrator during the Obama administration.

At that time and since, Weil has been an advocate for a reexamining the Fair Labor Standards Act (FLSA) and analogous laws regarding the classification of workers. His analysis of the contemporary American workplace, which he terms “the fissured workplace,” reveals a dissolution of the traditional relationship between employer and employee. In its place, Weil finds a web of more nebulous connections—contractors, subcontractors, part-timers, temps, outsourcing, franchising—all of which serve to deprive workers of many protections of applicable labor and employment laws, such as minimum wage, overtime, workers’ compensation, Social Security, and even antidiscrimination statutes, which are available only to those deemed “employees” by the law. Weil’s solution is to expand the definition of “employee” to include many of those who work for an employer even indirectly.