For the independent contractors involved in the battle regarding what constitutes an IC — be it a truck driver or a freelance writer — one of the next big decisions is going to take place in the U.S. Senate.
That’s where the full Senate will take up the nomination of David Weil as the administrator of the Wage and Hour Division of the Department of Labor, a position that will be key in determining what guidelines the federal government will use to define ICs.
Weil was nominated to the job in June. His nomination squeaked through the Senate Health, Education, Labor and Pensions committee last week on a party line 11-10 vote. Approval by the full Senate would presumably attract no Republican support and could not lose any Democratic votes to succeed.
His nomination to the position has drawn fire from the independent contractor community. Weil previously was the head of the Wage and Hour Division for three years under President Barack Obama, and his views critical of gig economy jobs like those at Uber are well known.
Weil is currently a professor and the dean of the Heller School for Social Policy and Management at Brandeis University in Massachusetts. His Twitter feed has numerous criticisms of what he calls the “platform model” of employment, which is another way of describing the gig worker economy. He also uses the hashtag #fissuredworkplace, which is derived from the title of a book he wrote with that title and the subtitle of “Why Work Became So Bad for So Many and What Can Be Done to Improve It.”
The “platform model,” Weil wrote in a tweet from late 2020, “undermines workplace rights and protections by misclassifying workers as independent contractors. And because that cuts labor costs for companies, the model spreads like weeds.”
When Weil was introduced to the confirmation hearings of the Senate committee in July, Chair Patty Murray, D-Wash., said in his earlier tenure at Wage and Hours, he “proved himself a capable leader committed to ensuring workers across the country were paid the wages they had earned.”
“While it has been frustrating to see the previous administration undermine these efforts and reverse this progress over the last four years, confirming a proven champion for workers to return to the Wage and Hour Division is an important step to putting us back on the right track,” Murray said.
The Wage and Hour Division is expected to play a key role in independent contractor classification by how it administers what is expected to be a new Department of Labor rule defining ICs. The Trump administration proposed rule was rolled out just weeks before that administration left office. When the Biden administration took office, it withdrew the rule, and a new rule awaits.
The withdrawn Trump administration rule was seen as making it easier to define a worker as independent. What comes next is unknown, but it is expected to move toward the basic philosophy of what’s in California’s AB5 or Congress’ PRO Act, which includes the same ABC test that is codified in AB5. The PRO Act passed the House last year but has not advanced in the Senate, with at least two Democratic senators expressing reservation about its provisions.
The view of Weil by two people in the IC community is made clear in the headline of a recent opinion piece in The Hill: “We are America’s independent contractors, and we are terrified.”
Weil’s narrow approval by the Senate committee “is just the latest battle in the war we’re being forced to fight to keep our chosen careers,” the article in The Hill said. It was written by Kim Kavin and Jen Singer. New Jersey-based Kavin, in particular, has become one of the leading voices against legislation and regulation that she believes would restrict the ability of independent contractors to stay that way.
In their opinion piece, Kavin and Singleton said the Weil advancement is the second step in the past month that has ICs concerned about their future under a Biden administration. The first is the decision by the National Labor Relations Board to revisit earlier precedents under the National Labor Relations Act to guide the board — now dominated by Democrats — in setting the definition of an IC in its future decisions.
The U.S. Chamber of Commerce, in a letter sent to the Senate committee just before the nomination advanced, cited several areas where it had specific concerns about Weil, all of which could involve any battles over the status of a trucker or a gig worker involved in transportation.
The Chamber’s letter cites Weil actions taken in his first stint heading the Wage and Hour Division.
The Chamber said Weil attempted to implement a rule that would raise the overtime exemption salary to $47,476, an almost doubling of the previous level at which an employee’s salary would exempt that worker from overtime requirements. That rule ultimately was shot down by a federal court, according to the Chamber letter. The current level is $35,568, which was implemented by the Trump administration and which the Chamber says it supports.
“We are concerned that Dr. Weil would again seek to unnecessarily raise this salary threshold,” the Chamber wrote in its letter, which was signed by Glenn Spencer, the senior vice president for employment policy.
Weil, according to the Chamber, issued an administrator’s interpretation of IC status that relied on the “economic realities” test to determine whether a worker should be considered an employee or an IC. The economic realities test is one that is viewed as generally more favorable toward defining a worker as an employee. It has multiple “tests” to help determine IC status, such as the degree of employer control and the ability of a worker to act in such a way that there is an economic gain that can be produced.
It was that interpretation that was withdrawn by the Trump administration, replaced by the rule that in turn was yanked by the Biden administration. That opens the door for a Weil-led Wage and Hours Division to replace it with its own rule, presumably written along the same lines that was originally proposed when he headed the Obama administration.
That possibility was made explicit by the Chamber’s letter. “We are concerned Dr. Weil may seek to promulgate a regulation for determining independent contractor status under the FLSA that will reflect the AI he issued, which would perpetuate confusion and uncertainty for employers,” Spencer wrote.
The third point raised by the Spencer letter regards joint employers. An example would be if a franchisee is found guilty of a labor violation and the franchisor gets dragged into the violation even if it was not specifically involved in the violation.