David Weil will not be responsible for defining what constitutes an independent contractor. A vote to invoke cloture and stop a filibuster of Weil’s ratification as head of the Wage and Hour Division of the Department of Labor failed in the Senate Wednesday by a 53-47 vote.
Three Democrats — Joe Manchin of West Virginia and Kyrsten Sinema and Mark Kelly of Arizona — voted with the entire Republican caucus in the Senate.
Had the cloture vote succeeded, it would have allowed the full Senate to proceed to a confirmation vote on Weil’s return to the job he held in the Obama administration. But with Weil’s nomination getting out of committee only by one vote, the vote in the Senate was always going to be close.
When the Weil nomination first came to the Senate Health, Education, Labor and Pensions Committee, the ranking Republican on the panel, Richard Burr of North Carolina, summed up the Republican opposition to his nomination in a prepared statement.
“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,” Burr said. “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.
Opposition to Weil from the business community was fierce. The Brandeis professor wrote a book entitled “The Fissured Workplace: Why Work Became So Bad for So Many and What Can Be Done.” He has long been seen as more sympathetic to worker concerns and resistant to management.
From the perspective of trucking and other transportation-related industries that utilize independent contractors, he summed up his views in an online debate conducted by the Society for Human Resource Management.
“One problem is that, in many cases, independent contractors should be considered employees under our workplace laws,” Weil wrote. “Numerous studies document the prevalence of misclassification. And the number of privately litigated cases involving misclassification appears to be on the rise.”
An online community of independent contractors also was vocal in its opposition to Weil’s appointment.
But even if Weil is not going to return to head the Wage and Hour Division, labor attorneys contacted by FreightWaves said that would not stop the ultimate appointee and the professional staff there now from producing a new Labor Department interpretation of what constitutes an independent contractor that would be sympathetic to his views.
“While the day-to-day functionaries in the wage and hour division at the DOL will undoubtedly continue along their current trajectory in connection with rulemaking, it is certainly possible that having Manchin, Sinema, and Kelly all oppose Weil sends a strong enough signal that the next nominee has to trim his or her sails a bit in order to make it through,” Marc Blubaugh, partner and co-chair of the Benesch law firm, said of the future without Weil at the helm. ” That could mean slow walking the IC rule and prioritizing other matters.”
The Weil interpretation was withdrawn by the Trump administration early in its tenure. At the time of the withdrawal, the Venable law firm wrote of the Wage and Hour Division guidance that it “stated that most workers are employees — rather than independent contractors — under the Fair Labor Standards Act (FLSA) definition of employment. The guidance effectively created a presumption that workers are employees under the FLSA, underscoring the importance and level of scrutiny placed on employers to correctly classify workers.”
The Trump administration published its own independent contractor status definition just a few weeks before the Biden administration came into office, with that guidance being promptly withdrawn by the new managers at the Department of Labor. But a federal court earlier this month ordered that the Trump rule be put back into place, ruling that the Biden administration did not follow proper procedure in withdrawing it.
The Trump administration rule on defining independent contractors is considered far more favorable to establishing that a worker can be independent rather than an employee than either the Obama/Weil rule it replaced or whatever will eventually come down from the Biden Wage and Hour Division.
Whatever that new rule is, it won’t be a product of a division led by Weil.