This Biden Nominee Could Restrict Worker Freedom
Workers’ rights and freedoms are needed now more than ever. But President Biden’s labor nominee wants to regulate them away.
On January 4th, President Biden renominated David Weil to lead a key office at the Department of Labor. His nomination narrowly advanced out of the Health, Education, Labor, and Pension Committee and is now headed to the full Senate for a final vote. This is troubling, since Weil, an academic-turned-bureaucrat, is a long-time critic of free enterprise and has let these views guide his policy agenda. In fact, he’s far more inclined to engage in bureaucratic activism rather than enforce the law as written. Senators should be wary about giving him another shot.
If confirmed, Weil would serve as the DOL’s Wage and Hour Division administrator, a role he occupied during the Obama Administration. During his three-year tenure (2014–2017), Weil issued rules that deviated significantly from the law and excessively scrutinized entrepreneurial and worker-centric models. Under his leadership, the DOL promulgated regulations that sowed uncertainty among employers and employees alike.
Weil’s track record doesn’t warrant another term. But he’s very close to getting back the reins at the DOL, which is bad news for worker choice and freedom.
Today, Americans have a wide array of job opportunities to choose from, from full-time work to freelancing. Although these options afford workers more autonomy and flexibility, Weil views them as inherently coercive. He has written extensively about the so-called “fissured workplace” — the belief that alternative working arrangements, such as independent contracting and franchising, directly harm workers by leaving “so many without fair and decent wages, a career path, and a safe work environment.”
This theory of exploitation is inherently at odds with the realities of nontraditional work. For example, Americans who participate in gig work can choose the time and duration of their tasks. There is no coercion; it is a choice and often supplements, rather than replaces, income. According to a Pew Research poll conducted in 2021, 41% of surveyed gig workers worked less than 10 hours on these online platforms, and 68% viewed their participation as a side job. The poll also indicated that most respondents perceive their experience as positive and fair.
Despite growing evidence that such work is not exploitative, Weil has been a consistent and outspoken critic of gig work. He believes that these workers should legally be considered employees, effectively eliminating all of the positive features that distinguish gig work from traditional employment. He’s not alone in this view. Over the past couple of years, legislators have sought to eliminate the employee versus independent contractor distinction by codifying the ABC classification test into law.
Fortunately, Weil does not believe that he can regulate the ABC test into practice. In an interview with Bloomberg Law, he suggested that Congress would have to implement this change through legislation: “If you wanted to do that in the federal space, then you have to amend the Fair Labor Standards Act,” he said.
Independent contractors are worried, and rightfully so, given the popularity of proposals such as California’s AB-5, the federal Protecting the Right to Organize Act, and now a DOL pick who’s eager to see such legislation take full effect.
Though Weil has exercised restraint when it comes to the ABC test, he has opted for bureaucratic discretion for other, but closely related, classification issues. For instance, in 2016, he issued an “administrator’s interpretation” (AI) that expanded the definition of joint employment, a situation that occurs when two or more employers are both responsible for a worker under the Fair Labor Standards Act. Under his 2016 interpretation, companies became liable for workers they never employed. Unsurprisingly, this complicated contracting and franchising relationships.
The AI broadened the scope of wage and hour enforcement but was hardly justified. As noted by Iain Murray of the Competitive Enterprise Institute, the interpretation drew sparsely from the law and was devoid of procedural justice. Weil “took a few words” from the Fair Labor Standards Act and “interpreted them in a damaging manner without giving any of the affected businesses a chance to put their side of the case.” Fortunately, the guidance was rescinded a year and a half later during the Trump Administration.
Should Weil return to his DOL role, such overreaching and disruptive rules, coupled with aggressive enforcement, will likely become the norm. He believes that “regulatory systems provide the government with tools to change private behavior, and those tools are usually related to enforcement activities.”
As the pandemic continues to disrupt the labor market, the American people need leaders to expand employment opportunities rather than diminish or restrict them. Returning to Obama-era policies would be anachronistic and highly unproductive for the evolving world of work.
Rachel Chiu is a contributor for Young Voices. Her work has been featured in USA Today, The National Review, RealClearMarkets, City A.M., and elsewhere. She tweets @rachelhchiu.
