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Weil’s Bid for Wage-Hour Post Derailed by Grassroots Lobbying

March 31, 2022, 8:05 PM

The defeat of David Weil, the Biden administration’s pick for top wage and hour regulator, was the result of a months-long grassroots campaign to specifically target and convince moderate Senate Democrats to vote against him.

The U.S. Senate March 30 voted 47-53 on a procedural motion to advance Weil to be the Department of Labor’s Wage and Hour Division administrator, turning back the nominee.

Senate Democrats Joe Manchin (W.Va.), Kyrsten Sinema (Ariz.), and Mark Kelly (Ariz.) broke from their party to join all Republicans in opposing Weil.

The vote was a public blow to the Biden administration and its labor agenda that trained a spotlight on disagreements among congressional Democrats.

Persistent lobbying from the International Franchise Association and other business groups successfully flipped Sinema and Kelly, as well as Manchin, who voted in favor of Weil in 2014 when he was nominated for the same role in the Obama administration.

Manchin heard directly from franchise owners in West Virginia, who convinced him to oppose Weil, business groups said. The senator had expressed concerns about the nominee last year, and ultimately said he could not support the nomination because he believed the health of businesses wouldn’t be Weil’s “utmost priority.”

“West Virginia small businesses are the heart of our economy and our communities. Mr. Weil’s track record and previous statements are problematic for many West Virginia employees and business owners,” Manchin said in a public statement. His office declined to comment further.

Following the failed procedural vote, Senate Minority Leader Mitch McConnell (R-Ky.) said Weil’s nomination was “a naked attempt to achieve through bureaucracy what the far left cannot achieve through legislation.”

The White House said it plans to “continue to evaluate” Weil’s nomination and “how we move forward.”

“David Weil is a qualified nominee for the Department of Labor, and we’re disappointed he didn’t get the votes on the floor of the Senate last night. Confirming his nomination would be good for workers,” a White House spokesperson said. The White House remains “proud of the Administration’s pro-worker policies and work being done,” the spokesperson added.

Weil couldn’t immediately be reached for a comment.

Gig Economy Views

Business groups and Republicans vociferously opposed Weil’s nomination to the federal wage office, pointing to his past tenure in the same position. Weil’s skepticism toward independent contractor arrangements frequently used by gig economy companies Uber Technologies Inc. and Lyft Inc. was a main area of contention.

In 2015, during the Obama administration, Weil issued an administrator’s interpretation taking the position that most workers should be considered employees under the Fair Labor Standards Act. The law entitles employees to overtime, minimum wage, and other workplace protections, unlike independent contractors.

“It should surprise no one that franchise owners rose up against a nominee who had written very clearly that he viewed franchisees as merely ‘employees’ in the stores into which they’ve poured their life’s savings,” said Michael Layman, senior vice president for government relations and public affairs for IFA, the primary group lobbying against Weil.

It “never made sense to advance an anti-small business nominee” in the midst of a pandemic recovery, he said in an email.

The IFA acknowledged that defeating Weil would be an uphill battle considering he’d been confirmed in the Senate previously, said Jonathan Slemrod, a partner with Harbinger Strategies, a lobbyist that represents the IFA.

“To counteract this, we leaned heavily on franchise business people to weigh in directly with their Senators beginning in June of last year, immediately after the nomination was submitted” to the Senate Health, Education, Labor and Pensions Committee, he said.

The group knew that Sinema, Manchin, and Kelly understood the franchise business model, and targeted them “to communicate our views to those offices on the hill and in Arizona and West Virginia, and it is clear that they listened,” Slemrod said.

The IFA connected with freelancers, truckers, wholesalers, gig workers, and other groups to oppose the nomination, he said. “We found common cause with these stakeholders over the last 300 days with the goal of defeating cloture in a bipartisan way.”

Overtime Battle

The business community’s hostility toward Weil is not new, said Jade West, chief government relations officer for the National Association for Wholesaler-Distributors.

The wage-hour regulator role has a critical and direct impact on the way companies function, she said, and Weil has a “well-known track record on those issues.”

For example, the Weil-led Wage and Hour Division issued a rulemaking in 2016 that sought to expand overtime protections to more workers. The proposal more than doubled the salary threshold under which workers are automatically owed time-and-a-half pay, to $47,476. It also set updates to the threshold every three years.

Business groups sued, and a federal judge in Texas tossed the rule the following year.

The department’s wage division again plans to issue a proposal in April to expand time-and-a-half protections, an effort that Weil would’ve overseen had he been confirmed.

West said there is no other issue that “energized and infuriated” the businesses she represents more than that proposal.

“I’ve never had a response from members like they had to the overtime” rule, she said. “This was David Weil’s legacy.”

Fallout Frustration

Democrats and labor advocates expressed frustration over the Senate’s rejection of Weil’s nomination.

“I’m incredibly disappointed to see Dr. Weil, an exceptionally qualified nominee with a long track record fighting to ensure workers get the wages they have earned, did not get the votes tonight to be confirmed as Administrator of the Wage and Hour Division of the Department of Labor,” Sen. Patty Murray (D-Wash.), chair of the Senate HELP committee, said in a written statement. “Despite this outcome, I will never stop fighting for working families and for a fully staffed DOL with leaders committed to protecting workers.”

Judy Conti, director of government affairs for the National Employment Law Project, said it was a “shame” that Senate Democrats “bought into the misinformation campaign.”

“They have done no service to the workers in their states and signaled their willingness to allow them to continue to be exploited by companies that care little for their rights and welfare,” she said in an emailed statement.

Minimum Wage Comparisons

Business groups compared the Weil strategy to lobbying efforts against $15 minimum wage proposals floated earlier in the Biden administration.

The Senate parliamentarian ruled last year that Democrats couldn’t include the proposed minimum wage increases in a fast-track budget procedure. The provision was shelved—but not until after Sen. Bernie Sanders (I-Vt.) forced a vote on it to be included in the $1.9 trillion pandemic relief bill in March 2021.

Eight Senate Democrats voted against Sanders’ amendment.

“Last year, the conventional wisdom was that the minimum wage would go up. A broad coalition of business groups and employees proved that wrong,” said Michael Saltsman, managing director for the Employment Policies Institute.

“The campaign against David Weil’s nomination is similar,” he said. “The IFA ignored the conventional wisdom about Weil’s likely return to Wage and Hour and empowered its members to make the phone calls, send the letters, and have the conversations that made the difference.”

To contact the reporters on this story: Paige Smith in Washington at psmith@bloomberglaw.com; Rebecca Rainey at rrainey@bloombergindustry.com

To contact the editors responsible for this story: Laura D. Francis at lfrancis@bloomberglaw.com; Fawn Johnson at fjohnson@bloombergindustry.com