It may be April Fools’ Day, but the joke is on Congressional Democrats who supported David Weil’s nomination to lead the Department of Labor’s Wage and Hour Division again.
On Wednesday evening, the U.S. Senate rejected The Fissured Workplace author in a cloture vote. By a 53-47 margin, all 50 Republicans and three Democratic Senators - Joe Manchin (D-WV), Kyrsten Sinema (D-AZ), and Mark Kelly (D-AX) - delivered a major blow to Big Labor and the Biden administration.
The message was resoundingly clear: David Weil’s antiquated labor policies are anti-worker and fringe.
Weil’s Dangerous Views Explained
Like most of President Biden’s radical picks, Weil isn’t a stranger to controversy.
As Obama’s Wage and Hour Division Administrator, he exceeded his authority on numerous occasions to advance Big Labor special interests at the expense of America’s burgeoning independent workforce and small business owners.
For example, his support for an ABC test to determine a worker’s status automatically disqualified him. Had he returned to the Labor Department, Weil would have enacted one similar to California’s Assembly Bill 5. I explained why in NRO back in January:
In July 2015, Weil issued a memo known as an Administrator’s Interpretation (AI), falsely stating that worker misclassification is common in the workplace. The AI claimed that “most workers are employees under the FLSA’s broad definitions” of employment.
If confirmed again, Weil would likely adopt an ABC test — a metric used by states to determine a worker’s status — on a national scale. This would create a presumption that all workers are employees. His aim, allegedly, would be to prevent worker “misclassification,” thereby undermining the IRS-20 factor and revised Trump-era “economic realities” tests used for determining worker status.
Why Three Democrats Opposed Him
Despite supporting the Protecting the Right Organize (PRO) Act, Senator Joe Manchin (D-WV) came to his senses and realized David Weil doesn’t represent the interests of West Virginia— a right-to-work state that greatly prizes its independent contractors and small business owners.
“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. Ultimately, I could not support Mr. Weil because I do not believe that the health and well-being of our small businesses and the employees who rely on their success would be his utmost priority,” Manchin said in an official statement.
Why did the Arizona Senators, including one up for re-election this fall, help torpedo Weil’s nomination alongside Manchin? For starters, the Grand Canyon State isn’t a heavily unionized state. The AZ Central noted:
With all nominees, Sinema applies a three-part test where she examines whether they are qualified for the job, whether they believe in the mission of the agency and whether they can be trusted to uphold the law.
“Upon reviewing Mr. Weil’s nomination, she has concerns with his ability to faithfully execute and uphold the law,” Sinema’s spokesperson Hannah Hurley said in a statement to The Arizona Republic.
Weil’s views on independent-contractor status ultimately settled Kelly’s decision.
“Senator Kelly heard concerns from many Arizona small businesses about this nominee’s record, and ultimately shared those concerns and could not support the nomination,” Kelly’s spokesperson Jacob Peters said in a written statement.
Business Groups, Grassroots Activists Defeated This Biden Nominee
The coverage of David Weil’s defeat largely downplayed the efforts of individual freelancers and small business owners. That’s an unforgivable mistake on the media’s part.
Bloomberg Government, however, acknowledged their important efforts, writing, “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.”
“Small business owners, independent contractors and gig-economy entrepreneurs can breathe a sigh of relief today. A powerful DOL nominee with stone-age policy views was defeated in a procedural vote on the Senate floor with three Democrats joining all Republicans voting against the advancement of the nomination,” said Small Business & Entrepreneurship Council president & CEO Karen Kerrigan. “David Weil’s writings and record of action during the Obama Administration show that he is an unapologetic opponent of independent work, entrepreneurship, and workplace flexibility. Our modern economy needs policies that allow for flexibility and for people to launch businesses without outdated barriers, or government rules that force them into working relationships they do not want, or do not meet their financial or lifestyle needs.”
Conclusion
The future of work is freelance, not unionized jobs.
Unsurprisingly, Big Labor’s oft-discussed comeback was wildly exaggerated. And the numbers confirm this. Union jobs now comprise 10.3% of the workforce— down from 10.8% the year before.
59 million freelancers, myself included, got the last laugh. We will rest a little easier at night knowing David Weil can’t regulate us out of existence.