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Manchin Raises Concerns Over Biden Pick for Chief Wage Regulator

Oct. 15, 2021, 6:47 PM

Sen. Joe Manchin (D-W.Va.) has privately voiced concerns about the president’s nominee to be the top federal wage regulator, David Weil, an ardent critic of gig-economy companies who may need Manchin’s support to get confirmed, according to three sources familiar with the matter.

The moderate Democrat’s specific reservations weren’t immediately clear, but they’ve recently come to the attention of multiple senators, industry groups, and the White House, the sources said, requesting anonymity to discuss private conversations. Manchin has indicated he’s not decided whether he will support Weil, the sources added. Manchin’s office declined to comment.

The West Virginian’s holdout status comes at a crucial moment for Weil. The labor economist and professor, who faces opposition from Republicans, is stalled in the Senate and likely will require full support from the Senate Democratic caucus to return as head of the U.S. Department of Labor’s Wage and Hour Division. He ran the division from 2014 through the end of the Obama administration.

The scenario presents a major test for the Biden administration’s labor agenda, as pending decisions with economy-wide ramifications await a Senate-confirmed leader of the Wage and Hour Division. That includes whether to advance federal investigations and regulations that would seek to classify as employees ride-hail and delivery drivers, such as at Uber Technologies Inc. and DoorDash Inc., instead of as independent contractors who are exempt from federal workplace protections.

“We communicate regularly with Senator Manchin’s office about nominations, including this one,” an administration official said in a statement, declining to be named. “The administration is confident Dr. Weil will be confirmed.”

Weil needs a vote by the full Senate to be released from the labor committee, where senators deadlocked in an 11-11 party-line tie on Aug. 3. He would then require two more floor votes to be confirmed. Republican opposition—backed by consistent pushback from business groups—makes it likely that support from all 50 members of the Senate Democratic caucus would be needed, plus tie-breaking votes from Vice President Kamala Harris, to confirm him.

David Weil
Photo courtesy of the U.S. Labor Department

Opponent of Businesses?

Business and conservative groups, such as the International Franchise Association and Americans for Tax Reform, have been reaching out to Manchin and other Senate moderates, casting Weil as a “radical academic” who would harm economic recovery by promoting anti-employer policies.

The IFA and several other lobbying associations sent the Senate Health, Education, Labor and Pensions Committee—as well as Manchin—a letter before Weil’s confirmation hearing, attacking “his track record of bias against employers, particularly the smallest employers in America.”

Progressive Democrats and unions view Weil as the ideal candidate to resume his Obama-era position and spearhead nationwide enforcement and regulation of minimum wage, overtime, and child labor laws.

His supporters have been reaching out to Manchin in a bid to win his support, according to two sources with knowledge of those efforts.

Weil, now a dean at Brandeis University, is a scholar who specializes in developing targeted enforcement strategies focused on what he terms “fissured industries.” This concept, the subject of his 2014 book, describes a trend of lead corporations cutting costs by outsourcing non-core functions to affiliates, such as franchisees and subcontractors, to avoid responsibility for workplace conditions.

He’s also been an influential voice on the divisive issue of whether independent contractors have been misclassified. Since leaving the Obama administration, Weil has become an increasingly outspoken critic of the workforce models of gig-economy companies, arguing they deprive workers of decent wages and benefits by mislabeling them as contractors when they’re actually employees.

Support in 2014

Compared to when he won Senate confirmation in 2014, Weil’s detractors now can make use of a lengthier record of actions from his prior stint at the office; businesses argue he stifled job growth with burdensome rules and “gotcha” enforcement tactics. That includes initiatives targeting companies for shared liability and independent contractor misclassification and a regulation to extend overtime pay to some 4 million new Americans.

Manchin voted to confirm Weil in 2014 when Weil didn’t garner any Republican votes. But this time is different, and not simply because business and conservative lobbyists are making a more aggressive push to thwart his confirmation.

The West Virginia moderate has been wielding massive leverage on Capitol Hill, holding up Democrats and the White House’s push to pass a $3.5 trillion budget reconciliation bill on social and climate spending. Manchin and other moderate Democrats, particularly Kyrsten Sinema (D-Ariz.), are at the center of high-stakes negotiations among Democrats and Biden administration officials to reduce the cost of the package, which is key to President Joe Biden‘s domestic agenda.

That leaves little if any bandwidth to consider Manchin’s reservations about Weil, at least for now. And Senate Majority Leader Chuck Schumer (D-N.Y.) is reserving the limited available floor time to hold votes on nominees who are guaranteed to have the 50 votes necessary for confirmation. Schumer’s office didn’t respond to a request for comment.

The two centrist Republican senators who commonly vote in favor of Democratic nominees, Susan Collins of Maine and Lisa Murkowski of Alaska, opposed Weil in committee.

To contact the reporter on this story: Ben Penn in Washington at bpenn@bloomberglaw.com

To contact the editor responsible for this story: John Lauinger at jlauinger@bloomberglaw.com

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