[Senate Hearing 113-822]
[From the U.S. Government Publishing Office]
S. Hrg. 113-822
NOMINATION OF DR. DAVID WEIL TO SERVE AS ADMINISTRATOR OF THE WAGE AND
HOUR DIVISION, DEPARTMENT OF LABOR
=======================================================================
HEARING
OF THE
COMMITTEE ON HEALTH, EDUCATION,
LABOR, AND PENSIONS
UNITED STATES SENATE
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
ON
NOMINATION OF DR. DAVID WEIL TO SERVE AS ADMINISTRATOR OF THE WAGE AND
HOUR DIVISION, DEPARTMENT OF LABOR
__________
DECEMBER 10, 2013
__________
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COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS
TOM HARKIN, Iowa, Chairman
BARBARA A. MIKULSKI, Maryland LAMAR ALEXANDER, Tennessee
PATTY MURRAY, Washington MICHAEL B. ENZI, Wyoming
BERNARD SANDERS (I), Vermont RICHARD BURR, North Carolina
ROBERT P. CASEY, JR., Pennsylvania JOHNNY ISAKSON, Georgia
KAY R. HAGAN, North Carolina RAND PAUL, Kentucky
AL FRANKEN, Minnesota ORRIN G. HATCH, Utah
MICHAEL F. BENNET, Colorado PAT ROBERTS, Kansas
SHELDON WHITEHOUSE, Rhode Island LISA MURKOWSKI, Alaska
TAMMY BALDWIN, Wisconsin MARK KIRK, Illinois
CHRISTOPHER S. MURPHY, Connecticut TIM SCOTT, South Carolina
ELIZABETH WARREN, Massachusetts
Pamela J. Smith, Staff Director
Lauren McFerran, Deputy Staff Director and Chief Counsel
David P. Cleary, Republican Staff Director
(ii)
CONTENTS
__________
STATEMENTS
TUESDAY, DECEMBER 10, 2013
Page
Committee Members
Harkin, Hon. Tom, Chairman, Committee on Health, Education,
Labor, and Pensions, opening statement......................... 1
Warren, Hon. Elizabeth, a U.S. Senator from the State of
Massachusetts.................................................. 1
Alexander, Hon. Lamar, a U.S. Senator from the State of
Tennessee, opening statement................................... 3
Scott, Hon. Tim, a U.S. Senator from the State of South Carolina. 11
Witness
Weil, David, Ph.D., Belmont, MA.................................. 4
Prepared statement........................................... 6
ADDITIONAL MATERIAL
Statements, articles, publications, letters, etc.:
Senator Bennet............................................... 13
Letters from Mr. Weil's Academic Peers--Past and Present
Deans...................................................... 14
Response by David Weil to questions of:
Senator Harkin........................................... 19
Senator Alexander........................................ 19
Senator Baldwin.......................................... 29
Senator Franken.......................................... 30
Senator Isakson.......................................... 31
Senator Murkowski........................................ 32
(iii)
NOMINATION OF DR. DAVID WEIL TO SERVE AS ADMINISTRATOR OF THE WAGE AND
HOUR DIVISION, DEPARTMENT OF LABOR
----------
TUESDAY, DECEMBER 10, 2013
U.S. Senate,
Committee on Health, Education, Labor, and Pensions,
Washington, DC.
The committee met, pursuant to notice, at 10 a.m., in room
SD-430, Dirksen Senate Office Building, Hon. Tom Harkin,
chairman of the committee, presiding.
Present: Senators Harkin, Alexander, Franken, Baldwin,
Murphy, Warren, and Scott.
Opening Statement of Senator Harkin
The Chairman. The Senate Committee on Health, Education,
Labor, and Pensions will come to order. We're going to have a
hearing this morning on the nominee to administer the Wage and
Hour Division at the Department of Labor.
I'll now turn to Senator Warren for purposes of an
introduction.
Statement of Senator Warren
Senator Warren. Thank you very much, Mr. Chairman. It is my
great pleasure to introduce Dr. David Weil, who has strong
Massachusetts ties, having taught at Boston University School
of Management for the past two decades, after having received
his master's and Ph.D. from Harvard. He currently serves as the
co-director of the Transparency Policy Project at Harvard's JFK
School of Government and as the lead technical advisor for a
State-funded research study on the underground economy.
He is well known for his expertise in these issues, not
only in Massachusetts, but also nationally, having written
extensively on topics related to the Wage and Hour Division's
responsibilities. There are few, if any, more knowledgeable or
more qualified people that the President could have nominated
for this position, and I look forward to his speedy
confirmation.
Dr. Weil, we're very pleased to have you here today to
share your testimony.
The Chairman. Thank you very much, Senator Warren.
We again welcome Dr. Weil as the nominee to administer the
Wage and Hour Division at the Department of Labor. This
Division oversees some of the most fundamental protections for
American workers. It ensures that people are paid fairly in
accordance with our minimum wage and overtime laws. It protects
vulnerable children when our child labor laws are abused. It
ensures that workers can spend time with their families when a
new baby is born or a health crisis is looming. In short, this
relatively unknown agency plays a huge role in how Americans
experience their day-to-day working lives.
However, despite this important mission, this critical
agency was unfortunately allowed to atrophy during the past
Administration. The agency took a backseat approach that relied
almost exclusively on complaint-driven enforcement, relying on
the questionable assumption that vulnerable workers know their
rights and will approach the agency to report violations of the
law rather than taking a more proactive approach to educate
workers and seek out industries and populations where abuses
are likely to happen.
The current Administration has corrected these problems and
beefed up enforcement, revitalizing this essential agency. This
is in large part due to the comprehensive guidance provided by
the expert sitting before us today, Dr. Weil, as well as the
dedication of the career staff in the Division.
The Department of Labor has long looked to Dr. Weil for
expert advice, and he has answered their call. While he has
never worked directly for the agency, he is intimately familiar
with its structure and mission, as well as the challenges it
faces.
As has been said, he has studied and written extensively on
the most effective ways to use limited resources to most
effectively increase compliance with critical workplace
protections. He has spearheaded new ways of thinking,
enforcement, and investigations that will have the greatest
impact and most sustainable, long-lasting results. In a time of
increasingly tight budgets, this sort of innovative thinking
will be a tremendous asset to the agency.
A group of Dr. Weil's peers, respected academics at a
variety of universities, have strongly endorsed his nomination
and have only the highest praise for him. I ask unanimous
consent to include the text of these letters in the record.
[The information referred to may be found in additional
material.]
The Chairman. Dr. Weil brings unique perspective to all of
these issues. Again, he has a wealth of experience in
collaborating with many groups, often playing a role of
mediator and advisor, skills that will be extremely appropriate
to a role leading the Wage and Hour Division.
Dr. Weil has received strong recommendations of his
professionalism and fair-mindedness from past and current Deans
of his business school, former colleagues and partners on a
variety of projects who represent both management and labor. I
ask unanimous consent to include the text of these letters in
the record.
[The information referred to may be found in additional
material.]
The Chairman. It is clear that Dr. Weil is an exemplary
candidate to administer the Wage and Hour Division. It is
unfortunate that this division has been without a Senate-
confirmed leader for many years now. I join with Senator Warren
in hoping that we can, together, expeditiously move Dr. Weil's
nomination following today's hearing. It is a critical agency,
responsible for protecting our Nation's tens of millions of
workers.
Dr. Weil, I look forward to hearing more about your
background and experience and your plans for the Wage and Hour
Division.
With that, I will yield to Senator Alexander.
Opening Statement of Senator Alexander
Senator Alexander. Thanks, Mr. Chairman.
Welcome, Dr. Weil.
We look forward to considering the nomination of Dr. Weil.
As the chairman said, this is an important agency which
oversees the enforcement of more than a dozen major laws which
govern just about every private sector employment relationship
in the United States. If confirmed, he'll be charged with
supervising the work of over 1,800 employees in 54 field
offices covering all of our States and territories.
My understanding is that Dr. Weil has never supervised more
than 15 or 20 people, and that was in an academic research
setting. I want to talk a little bit about his management
skills and his plans in that way. As the committee of
jurisdiction for the Wage and Hour Division of the Department
of Labor, we want to make sure that anyone confirmed to lead
this division has appropriate management and practical
experience. I may have some written questions to explore that.
I also have some questions about Dr. Weil's views on
enforcing current law, which I hope he will answer thoroughly.
I'm concerned about an agenda that aims to stretch the law to
redefine what constitutes an employer and an employee in order
to reach beyond a franchisee owner and penalize larger
corporations.
The franchising industry has been an incredible engine of
economic growth in our country. According to the International
Franchise Association, it has created hundreds of thousands of
successful small businesses employing over 8 million
individuals. Many of these businesses are owned by people who
started on the bottom rung of the economic ladder, making
minimum wage, and working their way all the way up to the top.
Many of them are owned by women and minorities. For so many
people, franchising has been the path to the American Dream.
I think of my friend, Sandy Beall, who dropped out of
college at the University of Tennessee about 40 years ago and
went to work in a Pizza Hut. Then he founded his first Ruby
Tuesday, and pretty soon he had a company with 800 Ruby
Tuesdays when he retired a couple of years ago.
A nominee with a singular focus on inappropriately
stretching current law to throw a big wet blanket on that dream
is not one that would have my support. Nor could I support an
enforcement strategy that focuses on preconceived targets set
in Washington rather than being responsive to complaints of
breaches of the law or a strategy that has the underlying goal
of increasing unionization without regard to the desires of
employees themselves. There is some serious concern here that
needs to be reviewed before the nominee is put in charge of the
agency.
It's worth noting that this position has been without a
confirmed administrator for the entirety of the current
Administration. I want to point out that this can't be blamed
on Republican delays or use of the filibuster. The President
has nominated two other individuals to the position, both of
whom voluntarily withdrew before any HELP Committee votes were
scheduled. The last nominee withdrew his nomination of August
2011, a full 28 months ago.
I would point out to my Democratic friends that if the
nominee is reported to the full committee, and even if there
were to be an objection, the only debate on the nominee under
the changes of rules that we made 6 months ago, since it's a
subcabinet nominee, would be for 8 hours or 4 hours, if
Democrats gave that time back, so the Democratic leader could
bring the nominee to the floor, even if it were objected to on
a Thursday--make Friday the intervening day, and it could be
voted on a Monday.
There's really no opportunity for delay on the part of the
minority in this case. In the history of President Obama's
administration only two subcabinet nominees have been denied
their seats by a filibuster. I hope the chairman will give this
committee the time to fully conduct our constitutionally
required vetting.
I thank the chair.
The Chairman. Thank you, Senator Alexander.
I'm asking members to submit any written questions for the
nominee by tomorrow, Wednesday, by 5 p.m. We'll be holding an
executive session next week on December 18th. I ask Senators
and their staffs, who may be here, to include that on your
schedule for December 18th to consider this nomination among
some other items that we have.
Dr. Weil, welcome. We have your complete statement. It will
be made a part of the record in its entirety. If you could,
please sum up in just a few minutes, because I'm told we have
four votes starting at 10:15. I'd like to wrap this up so we
won't have to come back. So, please, if you could wrap up in
about 5 minutes, I'd sure appreciate it.
STATEMENT OF DAVID WEIL, Ph.D., BELMONT, MA
Mr. Weil. Thank you, Chairman Harkin and Ranking Member
Alexander and distinguished members of the committee, for the
opportunity to appear before you today as you consider my
nomination to serve as the U.S. Wage and Hour Administrator.
I am deeply grateful to President Barack Obama for
nominating me to the position of Wage and Hour Administrator
and to Secretary Thomas Perez for the confidence he has shown
me in supporting my nomination. I want to thank Senator Warren
for her very kind introduction this morning. I also wish to
acknowledge and thank my wife, Miriam; sisters, Carla and Lisa
Weil; cousins, Greg Schetina and Amy Shapiro; and my good
friend, Mayor Tony Williams, who have joined me today.
I am humbled by the opportunity, if confirmed, to serve my
country as Wage and Hour Administrator. The laws that the Wage
and Hour Division oversee, including the Fair Labor Standards
Act, which celebrates its 75th anniversary this year, are key
to ensuring that men and women earn a fair day's pay for a fair
day's work, and that businesses who abide by the law can
compete on a level playing field. These principles are not only
rooted in our workplace laws, but reflect a basic concept of
justice that underlies our labor market and economy.
I sit here today in large part because of the ability of my
parents and grandparents to earn a fair day's pay for a fair
day's work. My mother's parents came to the United States at
the turn of the last century. Like thousands of other
immigrants, my grandparents toiled for years in the garment
industry in order to save enough to start a small business to
support family members and educate their children.
My father and his family fled Nazi Germany and arrived in
the United States in 1939 with few resources but a desire to
build a new life in this country. My father has often recounted
to me the many jobs he held as a young man, whether stocking
goods in a grocery store, selling shoes, delivering mail, or
working on a truck assembly line. He was able to earn enough to
support his family, go to college, and eventually attend
medical school, providing a solid foundation for his children.
Growing up in a small town in northeastern Colorado, I had
many classmates whose families were similarly seeking to follow
that pathway, whether sons and daughters of farmers, farm
workers, workers in the local meat packing industry, or the
children of small business owners. Some of those families were
successful in building an economic foundation for their
children, as my parents had been able to do for my sisters and
me. But other families were not so fortunate, and these
experiences gave me a deep appreciation of the opportunity that
had been afforded to me and my family and an abiding interest
in the workplace.
Beginning with my doctoral work at Harvard University and
continuing over the course of my academic career, I have
pioneered research regarding how industry structure and market
forces affect business decisions regarding the workplace. As a
Boston University Business School professor for over 20 years,
I bring a unique perspective to these public policy questions,
rooting my work on government policy in an understanding of how
businesses make decisions in competitive environments.
On the basis of my expertise, I've advised both Democratic
and Republican administrations in the United States at the
Federal and State levels and policymakers in other countries on
designing and implementing public policies for the workplace,
particularly in the area of labor standards. If confirmed, I
would work tirelessly as Wage and Hour Administrator to assure
that men and women receive the compensation they are entitled
to from their work, and that the ideals embodied in labor
standards legislation are carried out in practice.
Let me briefly describe the principles that would guide me
in pursuit of that goal. In my view, a fundamental role of the
Wage and Hour Administrator is making sure that the laws
entrusted to the agency are administered efficiently, fairly,
transparently, and rigorously. Let me briefly describe these
principles.
The Wage and Hour Division, like all organizations, has
limited resources with which to pursue its objectives of
ensuring compliance across millions of workplaces spread
throughout the United States. In order to efficiently respond
to this, it needs to set priorities.
Efficiency also requires the Wage and Hour Division to use
the range of tools available to it effectively. For example,
noncompliance may arise in some instances from confusion about
regulatory requirements. In those cases, education and outreach
is the most appropriate tool. Where noncompliance may arise
from intentional and more egregious causes and intentions to
evade legal requirements, those cases may require stronger
tools of enforcement, particularly where businesses gain
competitive advantage by not complying with the law.
This relates to a second principle of fairness. It is
important to ensure that those businesses that comply with the
law and exceed its requirements are not put at a competitive
disadvantage because of their responsible actions. At the same
time, one must be equally vigilant that businesses that flout
the law do not benefit from that behavior. This fairness
principle requires administering labor standards laws in a way
that creates the right incentives, making those who comply with
our workplace laws stronger and not weaker.
Finally, transparency is another critical principle that
ensures that all parties affected by the laws administered by
the Division understand their rights and responsibilities as
well as the objectives and policies being pursued by the
agency. Transparency also entails fostering dialog with
Congress and the public, and if I am confirmed, I would make
engagement with all parties, including this committee, a major
priority.
The complexity of the modern workplace and the challenges
facing the Wage and Hour Division are very great. I would be
honored to be able to work with the talented men and women that
make up the Wage and Hour Division in their vital work of
ensuring that American workers receive a fair day's pay for a
fair day's work.
Mr. Chairman, Ranking Member Alexander, and members of the
committee, I once again thank you for the opportunity to
discuss my views, and I look forward to addressing your
questions.
[The prepared statement of Mr. Weil follows:]
Prepared Statement of David Weil, Ph.D.
Thank you Chairman Harkin, Ranking Member Alexander, and
distinguished members of the committee for the opportunity to appear
before you today as you consider my nomination to serve as the U.S.
Wage and Hour Administrator.
I am deeply grateful to President Barack Obama for nominating me to
the position of Wage and Hour Administrator and to Secretary Thomas
Perez for the confidence he has shown me in supporting my nomination.
As someone who considers himself a son of two great States, I want to
thank Senators Warren and Markey of Massachusetts for their kind
introductions this morning. I also wish to acknowledge and thank my
wife, Miriam, sisters Carla and Lisa Weil, cousins Greg Schetina and
Amy Shapiro, and many friends for joining me today.
I am humbled by the opportunity, if confirmed, to serve my country
as Wage and Hour Administrator. The laws that the Wage and Hour
Division oversees, including the Fair Labor Standards Act which
celebrates its 75th anniversary this year are key to ensuring that men
and women are paid a fair day's wage for a fair day's work and that
businesses who abide by the law can compete on a level playing field.
These principles are not only rooted in our workplace laws, but reflect
a basic concept of justice that underlies our labor market and economy.
I sit here today in large part because of the ability of my parents
and grandparents to earn a fair day's wage for a fair day's work. My
mother's parents came to the United States at the turn of the last
century. Like thousands of other immigrants, my grandparents worked for
years in the garment industry in order to save enough to start a small
business to support their family and educate their children. My father
and his family fled Nazi Germany and arrived in the United States in
1939 with few resources, but a desire to build a new life in this
country. My father has often recounted to me the many jobs that he held
as a young man. Whether stocking goods in a grocery, selling shoes,
delivering mail, or working on a truck assembly line, he was able to
earn enough to help support his family, go to college, and eventually
attend medical school, providing a solid economic foundation for his
children.
Growing up in a small town in northeastern Colorado, I had many
classmates whose families were seeking to find the same pathway--
whether the sons and daughters of farmers or farm workers, of workers
in the local meat packing and livestock industry, or of small business
owners. Some of those families were successful in building an economic
foundation for their children as my parents were able to do for my
sisters and me. But other families were not so fortunate. These
experiences gave me a deep appreciation of the opportunity that had
been afforded to my family and an abiding interest in the labor market
and the workplace. Beginning with my doctoral work at Harvard
University and continuing over the course of my academic career, I have
pioneered research regarding how industry structure and market forces
affect business decisions regarding the workplace. As a Boston
University business school professor who has taught close to 1,000 MBAs
in my 20-year career, I bring a unique perspective to these public
policy questions, rooting my work on government policy in an
understanding of how businesses make decisions in competitive
environments. On the basis of my expertise, I have advised both
Democratic and Republican administrations in the United States at the
Federal and State levels and policymakers in other countries on
designing and implementing public polices for the workplace,
particularly in the area of labor standards.
If confirmed, I would work tirelessly as Wage and Hour
Administrator to assure that men and women receive the compensation
that they are entitled from their work and that the ideals embodied in
labor standards legislation are carried out in practice. Let me
describe the principles that would guide me in pursuit of that goal.
principles and priorities
In my view, a fundamental role of the Wage and Hour Administrator
is making sure that the laws entrusted to the agency are administered
efficiently, effectively, fairly, transparently, and rigorously. Let me
briefly describe what these principles mean to me.
Efficiency: The Wage and Hour Division, like all organizations, has
limited resources with which to pursue its objectives--in this case,
ensuring compliance with minimum wage, overtime, child labor, family
medical leave, and other compensation standards across millions of
workplaces spread throughout the United States. In order to efficiently
respond to this challenge, the agency must prioritize. Prioritization,
in turn, requires establishing clear measures of workplace problems.
Efficiency attained through prioritization, however, must be
accompanied by a second principle: effectiveness.
Effectiveness: Achieving the aims of labor standards laws requires
using the appropriate methods to achieve compliance. The Wage and Hour
Division has a range of tools available to it and the agency must
choose the most effective tool at hand. For example, non-compliance may
arise in some instances from confusion about regulatory requirements.
In such cases, education and outreach may be the most appropriate
tools. In other cases, non-compliance may arise from intentional and
sometimes egregious efforts to evade legal requirements. Those cases
require stronger tools of enforcement, particularly where businesses
gain competitive advantage by not complying with the law. This relates
to a third principle: fairness.
Fairness: It is important to ensure that those businesses that
comply with the law--and often exceed its requirements--are not put at
a competitive disadvantage because of their responsible actions. At the
same time, one must be equally vigilant that businesses that flout the
law do not benefit from that behavior. This fairness principle requires
administering labor standards laws in a way that creates the right
incentives, making those who comply with our workplace laws stronger,
not weaker, in the markets in which they operate.
Transparency: It is critical for all parties affected by the laws
administered by the Wage and Hour Division--workers, businesses,
workers advocates, business associations--to understand their rights
and responsibilities under the law, as well as the policies being
pursued by the agency. The transparency principle of clearly
articulating and communicating with those parties and making the
activities of the Wage and Hour Division as clear as possible is a
natural complement to the other principles. If employers clearly
understand their responsibilities under the law they are far more
likely to comply with them.
Transparency is also a vital principle in working with Congress and
more broadly with the public. It is essential that the Wage and Hour
Division clearly articulate its policies and procedures and explain how
these relate to achieving its mission. Transparency is also vital for
fostering dialog with stakeholders, Congress, and the general public.
If I am confirmed, I would make that engagement a major priority.
Rigorous Evaluation: A final principle to ensure that the Wage and
Hour Division best achieves its objectives is engaging in ongoing,
rigorous, and evidence-based evaluation of all that we do. Evidence-
based management complements the other principles, whether in setting
priorities, assessing which intervention tools will have the greatest
efficacy, or in providing stakeholders ongoing information on the
activities of the agency. Equally, making evaluation a core part of
what the agency does means that new initiatives will be assessed as to
whether or not they achieve intended objectives. If confirmed, I would
work to ensure that both existing and new initiatives were carefully
evaluated and that appropriate adjustments were made in light of those
evaluations.
Given the complexity of the modern workplace, the challenges facing
the Wage and Hour Division are great. I would be honored to be able to
work with the talented men and women that make up the Wage and Hour
Division in their vital work of ensuring that American workers receive
a fair day's pay for a fair day's work. Mr. Chairman, Ranking Member
Alexander, and members of the committee, I once again thank you for the
opportunity to discuss my views with you and I look forward to
addressing your questions.
The Chairman. Thank you very much, Dr. Weil.
I see a vote has been called. There seems to be a little
bit of confusion as to how many votes we're going to have over
on the floor. At least we have one right now. I know that
Senators have questions to ask. We'll start. We'll see how we
proceed. We may have to take a break and then come back. We'll
just have to see what's happening on the floor right now. We'll
start a 5-minute round of questions here.
Dr. Weil, there's been a lot of attention to your report,
which was commissioned by the Department of Labor during the
last Bush administration, ``Strategic Enforcement of Wage and
Hour Laws.'' Why is strategic enforcement the right or most
effective method?
Mr. Weil. Thank you, Mr. Chairman. The reason strategic
enforcement is so important gets back to the basic problem of
limited resources that the agency faces. It has, as the Ranking
Member said, 1,800 employees that have the responsibility of
overseeing over 9 million workplaces in the United States.
Given that the careful use of those resources has to be
undertaken, that requires both setting priorities about where
the major problems are and really understanding the forces that
give rise to noncompliance problems, and then, given that,
using enforcement as well as outreach and education tools
appropriately according to where those problems lie. It very
much results from the need, the fundamental need, to achieve
objectives by applying resources very carefully.
The Chairman. Thank you, Dr. Weil. That's really all I
have. I'll turn to Senator Alexander now.
Senator Alexander. I'll be brief, to give other Senators a
chance to ask questions.
Dr. Weil, the chairman referred to an article you wrote.
You have a new book coming out, I understand, and you mentioned
transparency. Would you be willing to give a pre-publication
copy of that to the committee so that we can consider it as we
ask questions of you?
Mr. Weil. I'd be happy to do so.
Senator Alexander. Thank you very much.
Sometimes we ask for documents from the Wage and Hour
Division. We consider that a pretty essential part of our
oversight process. Do you consider providing documents a part
of transparency in the way that you would run the division?
Mr. Weil. Senator Alexander, I view the need to work and
reach out to all stakeholders, beginning with this committee,
very seriously. I would certainly cooperate with the committee
in providing information throughout my tenure, if I was
confirmed.
Senator Alexander. Well, that would be a great help. In a
research paper, ``Broken Windows, Vulnerable Workers,'' et
cetera, you seem to suggest that--and I'm paraphrasing here--
that if the Wage and Hour Division helps to create an
environment where workers are not afraid to launch complaints
against employers, those workers also may not be afraid to take
on the more perilous jump and participate in organizing a union
or take the first steps in that direction.
Do you view the Wage and Hour Division enforcement as a way
to promote and accomplish unionization?
Mr. Weil. No, I don't, Senator. The article was written
about the overall question of the use of employee voice in the
workplace, which has been an area of my study for many years.
The point I was making in the course of that article was to
describe the use of rights, the entire set of rights that
workers are afforded by our existing labor and workplace laws,
and whether or not they exercise those.
I view the use of rights as very important in terms of
making sure that--again, getting back to the point I made about
fairness--that employers who have workers who are aware of
their rights and, therefore, comply with the law are not put at
a competitive disadvantage against workplace situations where
workers may not be as aware of their rights, giving an unfair
advantage to those employers in terms of if they do not comply
with the law.
I view the issue of provision of rights as very much a
fundamental principle of the broader principle of making sure
that our laws are fairly administered and that they send the
right incentives so that responsible employers can compete
effectively.
Senator Alexander. Would you provide employers who might
not know their rights to not have a union with the same kind of
information?
Mr. Weil. Absolutely. I believe that one must use the
appropriate tools necessary to provide information about what
the law requires and what those requirements are. I view
education and outreach to all employers as an important element
of what the Wage and Hour Division would do in its policies.
Senator Alexander. One last question. In a YouTube lecture
video, you argued that traditional approaches that govern the
workplace--I'm paraphrasing again--suggest that we might need
to rethink our basic labor laws. As an academic, that's a
perfectly understandable comment to make.
Would you agree that if you're confirmed, you would be
committed to enforcing the labor laws as they're now written,
rather than as you think they should be written?
Mr. Weil. Yes, Senator. I do know that in my role as an
academic, I have a different kind of role in terms of
speculating on that, and I would be looking solely at the laws
that are enacted and the enforcement of them if I was confirmed
as Wage and Hour Administrator.
Senator Alexander. Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Alexander.
The second bells have rung. Senator Warren was here first.
I would recognize Senator Warren for at least a few minutes of
questions before we have to recess.
Senator Warren. I just have one, Mr. Chairman.
Dr. Weil, I understand that you are the lead technical
advisor for the research study on the underground economy
that's been commissioned by the Commonwealth of Massachusetts,
that one of the difficulties of enforcing misclassification
laws is there's very little data on how widespread the problem
is. For example, the IRS's last comprehensive worker
misclassification estimate was done almost 30 years ago, all
the way back in 1984, and it found then that worker
misclassification was costing the United States about $1.6
billion in revenues. Remember, that's 1993 dollars, so that's
about $3.6 billion in today's dollars.
I'm pleased that the IRS is including another study as part
of its national research program, and I understand the
Department of Labor is also looking to do a survey of thousands
of workers to get more information about the prevalence of
misclassification. I understand that you're a proponent of
trying to use objective data to guide enforcement policies.
I wonder if you could give us a few examples of how the
Wage and Hour Division could use data to enhance its
effectiveness in enforcing the laws on misclassification.
Mr. Weil. Thank you, Senator Warren. I very much agree that
in the area of misclassification, as in any area, you want to
start with as much objective data as you possibly can to
understand both where the problems are and the nature of those
problems.
In the case of misclassification, I think it's very
important that we understand the use of independent contracting
generally, which is a very old and very legitimate form of
business organization, and understand where it's being used
both responsibly but then also where it's being used in an
inappropriate way, which is what gives rise to
misclassification, which has the implications of not only, in
some cases, allowing noncompliance to arise, but also deprives
tax revenues to taxpayers and results in a number of related
problems to that.
I would hope--and I'm not aware or involved in the current
Labor Department efforts to look at misclassification. I would
hope, if I was confirmed, to undertake studies to understand
both the use of legitimate independent contracting and then
within that where misclassification occurs and how great those
problems might be.
Senator Warren. That's very good. I thank you very much. I
think we are very lucky to have someone of your talents and
experience who is willing to serve in this job. I look forward
to your speedy confirmation in this role.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Warren.
Senator Scott, I know you had a couple of questions.
Statement of Senator Scott
Senator Scott. I'll make them brief because of the time
that we have.
Dr. Weil, thank you for being here. I have a couple of
quick questions. In the area of fissured industries, having
owned a franchise for about 15 years with Allstate, targeting
the parent company, so to speak, as opposed to the franchisee
seems to be inconsistent with who has the ability to have the
impact on their employees. I'd love to hear your response to
targeting the parent company as opposed to targeting the
franchise owners like myself, No. 1.
No. 2, if we have limited resources, and we're talking
about the issue of fairness, it seems to me that targeting
specific industries that do not necessarily represent a large
body--at least in my State, the industries I'm thinking about
are 1 out of every 10 jobs, which is a meaningful number of
employers, whether it's restaurants, construction workers, or
the hospitality industry. I'd love to have your perspective on
the issue of fairness and targeting those industries.
The other question I would have is, why shift from a
complaint-driven investigation in favor of a directed
investigation with limited resources?
Thank you, Mr. Chairman.
Mr. Weil. Thank you, Senator Scott. As I mentioned in my
opening statement, I have taught for 20 years in a business
school and teach my students--I teach managerial economics and
think a lot about business forms, including franchising, which
is a very legitimate, longstanding, and productive form of
business organization. Many of my former MBA students have gone
into businesses with franchising, and I'm very proud of the
work they've done over the years.
My concern with franchising, as in any form of business
organization, as I said in regards to independent contracting,
is where that's being used in ways that are not legitimate
forms of franchising in the pursuit of branding and the other
reasons franchisors successfully use that business model, but
instead are used as a way to subvert the law. I think that's
what all of my writing on franchising is about, the problems
arising from franchising as opposed to in any way opposing that
vital form of business organization itself.
In regards to targeting, all of my work in the past has
been using objective measures to figure out and really
prioritize where different industries stand in terms of the
severity of wage and hour problems. The work I did for the
Labor Department and the Wage and Hour Division under the Bush
administration was precisely directed toward that, looking at
using various government forms of objective data, how we can
prioritize and rank industries. Prospectively, I would hope to
again use data, not based on past studies but looking forward,
to really understand where the major problems in the economy
are and to act accordingly.
Finally, in regards to directed and complaint
investigations, I certainly agree with you that one wants to
strike the right balance. An organization like the Wage and
Hour Division must and would continue to use complaint
investigations and respond to complaint investigations as a way
of finding out where there are problems and balancing that
against directed investigations as a way to use limited
resources.
Senator Scott. Thank you.
The Chairman. Again, all the Senators are instructed to
have any written questions in by 5 p.m. tomorrow, and we hope
you would expeditiously respond to those, Dr. Weil.
Thank you again. I'm sorry for the abruptness. We have
these four votes. I thank your family for being here.
Mayor Williams, it's always good to see you back up here on
the Hill.
And with that, the committee will stand adjourned.
[Additional material follows.]
ADDITIONAL MATERIAL
Prepared Statement of Michael F. Bennet
Chairman Harkin, Senator Alexander, and my colleagues on
this committee: It's a pleasure to support David Weil, the
President's nominee for Administrator of the Wage and Hour
Division at the Department of Labor.
David is one of Colorado's best and brightest. He was born
in Denver and grew up in Greeley. His career and his record
speak for themselves, and I am confident that he will make a
terrific Administrator.
Since 1992, David has worked at Boston University School of
Management, where he is a professor of Markets, Public Policy,
and Law.
He is also the co-director of the Transparency Policy
Project at the Harvard Kennedy University--a position he has
held since 2002.
Since beginning his career in 1987 as a Harvard faculty
member, David has built up a body of excellent work in the
field of labor economics. He has published extensively on labor
and employment policy, served as an advisor to the Wage and
Hour Division he is now nominated to lead, and advised a range
of other government agencies.
David received a Bachelor of Science degree in industrial
and labor relations from Cornell University, and a Masters and
Ph.D. in Public Policy from Harvard.
Academics, labor groups and business leaders commend David
for his diligence and his research. He is one of the foremost
experts in this country on how to deploy Federal policy to
ensure the health, safety and economic security of workers
across a range of industries.
As a professor for many years teaching and studying
regulatory issues from the perspective of both labor and
business, David understands the real-world impact that
government policies have on local businesses. From my
discussions with David, I am confident he will take a fair-
minded approach to this new position, always balancing the
needs of workers and the needs of businesses, ensuring that the
Department of Labor considers and safeguards both.
I am also confident that David can bring a little more
Colorado common sense to Washington, upholding wage and safety
standards while allowing for flexibility when it's called for.
I support David Weil's nomination. I know his service at
the Department of Labor would contribute to a stronger U.S.
economy. And I hope this committee and this body will swiftly
confirm him for this new role.
______
Letters from Mr. Weil's Academic Peers
October 29, 2013.
Hon. Tom Harkin, Chairman,
Hon. Lamar Alexander, Ranking Minority Member,
Committee on Health, Education, Labor, and Pensions,
428 Senate Dirksen Office Building,
Washington, DC 20510.
Dear Chairman Harkin and Ranking Member Alexander: We are all
academics who study different aspects of employment relations and
public policy. Each of us has worked in and/or advised the Department
of Labor and other Federal and State government agencies in both
Democratic and Republican administrations. While we do not all share
the same views on employment policy issues, we share a tremendous
respect for David Weil and believe he would be an excellent
administrator of the Wage and Hour Division of the Department of Labor.
David is one of if not the Nation's leading expert on enforcement
of safety and health, wage and hour, and other workplace regulations.
He has done extensive research on the effectiveness of different
enforcement strategies and has worked intensively with Labor Department
officials for many years to improve the efficiency and effectiveness of
the policies he will be entrusted to administer.
He brings a long history of public service to this position. Among
other things he worked closely with the late John Dunlop, Secretary of
Labor in the Ford administration, on a major study of work practices
and productivity in the apparel and textile industries. He currently
serves as co-director of the Transparency Policy Project at Harvard
University's Kennedy School of Government. He is recognized by his
colleagues at Boston University as an extremely competent, fair, and
thorough administrator.
For the past 8 years he has served as the neutral chair of the
Dunlop Agricultural Labor Commission, a position that requires gaining
and maintaining respect and trust from diverse groups of employers,
contractors, employees, immigrants, and unions.
For all these reasons, we are pleased to endorse the President's
nomination of David Weil to be the Administrator of the Department of
Labor's Wage and Hour Division. Please feel free to contact any of us
if we can be of further help to your committee.
Sincerely,
Richard Freeman, Professor,
Department of Economics, Harvard University.
Harry Katz, Dean,
School of Industrial and Labor Relations, Cornell University.
Lawrence Katz, Professor,
Department of Economics, Harvard University.
Thomas Kochan, Professor,
MIT Sloan School of Management.
David Levine, Professor,
Haas School of Business, University of California-Berkeley.
Lisa Lynch, Dean,
Heller School for Social Policy and Management, Brandeis
University.
Robert McKersie, Professor Emeritus,
MIT Sloan School of Management.
Paul Osterman, Professor,
MIT Sloan School of Management.
James Rebitzer, Chair,
Dept. of Economics, Law & Policy, School of Management, Boston
University.
______
Boston University School of Management,
Boston, MA 02215,
November 25, 2013.
Hon. Tom Harkin, Chairman,
Hon. Lamar Alexander, Ranking Member,
Senate Committee on Health, Education, Labor, and Pensions,
Washington, DC 20510.
Dear Senators Harkin and Alexander: I am writing in strong support
of the nomination of Boston University Professor David Weil to the
position of Wage and Hour Administrator in the Department of Labor.
For the past two decades I have known and worked closely with
Professor Weil when I served as Dean of Boston University School of
Management where David was a faculty colleague. Prior to my appointment
as Dean, I was with Ford Motor Company for 27 years reaching the
position of president, at Ford of Europe. I currently serve on several
public company boards of directors.
As a businessman, and as a senior university administrator, I see
Professor Weil as a fair and open-minded scholar who would work well
with business people, with unions, and with other stakeholders. He
understands and appreciates the working of the free market as well as
the important role labor plays in the fabric of our economy.
He is a first-rate, productive scholar who has distinguished
himself both as a chaired professor at Boston University and at the
Kennedy School at Harvard where he has been co-director of the
Transparency Policy Project. But he is also a delightful human being
with excellent interpersonal skills and a very thoughtful, balanced
approach to complex issues. I believe he would be an excellent addition
to the Department of Labor and would serve our country admirably as
Wage and Hour Administrator. I support his nomination without
reservation.
Respectfully,
Louis E. Lataif.
______
Read Partners, Inc.,
November 26, 2013.
Hon. Tom Harkin, Chairman,
Hon. Lamar Alexander, Ranking Member,
Senate Committee on Health, Education, Labor, and Pensions,
Washington, DC 20510.
Dear Chairman Harkin and Ranking Member Alexander: I am writing in
support of the nomination of David Weil as Wage and Hour Administrator
within the Department of Labor.
My perspective on David's nomination comes from 25 years in
business, including CEO of a $400 million manufacturing company,
currently Commercial Vehicle Group (CVGI:NASDAQ). I have also served as
CEO of two national/global non-profits and as the Assistant Secretary
for Employment Standards during the Gerald R. Ford Administration, to
which this particular position reported. I am therefore quite familiar
with the importance of this position in terms both of overseeing the
work and of being the object of its statutes and regulations.
I have known David Weil for nearly a decade and know him to be both
a brilliant academician and one devoted to public service. In our work
together, he has proven to be fair and balanced in his treatment of
business as well as labor interests. Most recently we have worked to
support common sense solutions to whistle-blower issues within OSHA and
David's approach is very much one of problem-solving in the interests
of all parties. When confirmed, I have every reason to believe David
will consult widely within the business and labor communities to
provide effective solutions for all parties.
I commend this nomination to you and would encourage bipartisan
support for its approval.
Sincerely yours,
John C. Read,
Managing Partner.
______
International Brotherhood of Electrical Workers,
Dorchester, MA 02122
November 27, 2013.
Hon. Tom Harkin, Chairman,
Hon. Lamar Alexander, Ranking Member,
Senate Committee on Health, Education, Labor, and Pensions,
Washington, DC 20510.
Dear Chairman Harkin and Ranking Member Alexander: We write to you
to express our support for the confirmation of David Weil as U.S. Wage
and Hour Administrator for the Department of Labor. As Business Manager
of Local 103 of the International Brotherhood of Electrical Workers
(IBEW), and as Executive Manager of the Boston Chapter of the National
Electrical Contractors Association (NECA), we rely on David Weil as a
source of knowledge and skill in finding a balance in the needs of
employers and employees in today's world. David's acute understanding
of labor markets and labor-management relations will be a tremendous
asset to the position of Wage and Hour Administrator and we have no
doubt that he will utilize his experience and expertise to benefit
employers and their employees across the country.
Local 103, IBEW, and NECA are both regional organizations,
representing 7,000 retired and active electricians and technicians, and
over 100 electrical contractors, respectively. Our area of the country
has been at the forefront of innovation for years and with that comes
an ever-evolving labor market and the challenges of meeting the demands
of workers, employers, and consumers. We are in constant contact with
David Weil as we continue to forge a common ground on a number of
issues. Without David's proficiency at getting to the root of problems,
determining the requirements of both sides, and recommending solutions
that benefit everyone, we might have lost out on some terrific
opportunities for both of our organizations in years past. Because of
David's guidance over the past few years, all of our members, and for
that matter, all of Greater Boston and New England is in a position to
grow a stronger electrical industry into the future.
We believe that the impartiality and ability to relate to all
sides, that we have witnessed David Weil exemplify in our own
negotiations, will allow David to make a seamless transition to
negotiations on a national level. David is a knowledgeable, practical
and open-minded individual who makes an ideal candidate for the post of
Wage and Hour Administrator for the Department of Labor.
Thank you for your consideration of our recommendation of this very
important candidacy. Please do not hesitate to contact either of us for
more information on our experience with David Weil.
Sincerely,
Michael P. Monahan,
Business Manager, Local 103, IBEW.
Glenn W. Kingsbury,
Executive Manager, NECA Boston.
______
M. L. Johnson & Associates, LLC,
Seattle, WA 98112,
November 27, 2013.
Hon. Tom Harkin, Chairman,
Hon. Lamar Alexander, Ranking Member,
Senate Committee on Health, Education, Labor, and Pensions,
Washington, DC 20510.
Subject: Letter of Support for David Weil's Confirmation as the U.S.
Wage and Hour Administrator for the Department of Labor
Dear Chairman Harkin and Ranking Member Alexander: By way of
introduction, I am a Labor Relations Consultant, having worked in the
construction industry for over 40 years on projects across the United
States, both in the public and private sectors. Previously, I was the
vice president and manager of Labor Relations for the Parsons
Corporation, a national engineering and construction company. In this
capacity, I oversaw Labor Relations issues on construction projects
with a total value in excess of $60 billion that were located
throughout all areas of the country.
I am writing you to give David Weil my strongest and highest
recommendation for the position of U.S. Wage and Hour Administrator for
the Department of Labor. I have known David for some time and have
worked with him on a professional basis on a number of Labor/Management
issues. He is extremely bright and has shown an incredible ability to
see issues from both the Labor and Management perspective. He has also
been very open-minded about different, innovative strategies for
resolving particularly difficult issues.
I hold David in very high regard for being open to all points of
view and, in particular, being a good listener to all perspectives. As
a management representative, I have particularly appreciated that he is
fair and consistently considers the position of business, understands
how the business/corporate world works and tries to incorporate these
views into viable, workable solutions. He is an incredible student of
``labor'' and one in whom I have a great deal of confidence.
In my 40-year career, I cannot think of anyone better prepared, or
with the experience and expertise, than David. He would be an
outstanding U.S. Wage and Hour Administrator and I encourage you to
support his confirmation.
Please feel free to contact me at any time if you desire any
further information.
Sincerely,
Mark L. Johnson,
Principal, M. L. Johnson & Associates, LLC.
______
Promontory Financial Group, LLC,
San Francisco, CA 94105,
November 27, 2013.
Hon. Tom Harkin, Chairman,
Hon. Lamar Alexander, Ranking Member,
Senate Committee on Health, Education, Labor, and Pensions,
Washington, DC 20510.
Dear Chairman Harkin and Ranking Member Alexander: I write to you
in strong support of the nomination of David Weil to serve as Wage and
Hour Administrator of the U.S. Department of Labor. It has been my
enormous good fortune to know David for 30 years, since we were
students together at the Kennedy School of Government in the early
1980s.
If I could tell you just one thing about David's character, based
upon my long acquaintance with him, I would tell you about his
commitment to fairness, a concept that, for David, rests entirely upon
a complete and balanced understanding of relevant facts and
perspectives. From the first days of our acquaintance, David has often
spoken of the importance of appreciating business and labor interests
alike, recognizing that, in the long run, the success of each side
depends upon the success of both sides. Achieving and applying that
appreciation, through the ceaseless exercise of his great intelligence
and natural curiosity, and his abiding passion for the welfare of his
fellow citizens, has been his life's work. I have spent most of my own
career in business, and currently lead the regional operations of the
Promontory Financial Group, a boutique consultancy focused on helping
financial institutions to work through and resolve compliance and risk
management challenges. Familiar as I am with the needs and perspectives
of the business community, I am certain that David's confirmation would
well serve not only our country as a whole, but that community in
particular. Just as he has done in his academic work, David will
systematically collect and consider business perspectives in the
conduct of his official duties. In David, the business community will
find a door and a mind, both genuinely and reliably open.
Sincerely,
Konrad Alt,
Managing Director, Promontory Financial Group, LLC.
______
Boston University,
Boston, MA 02215,
December 4, 2013.
Hon. Tom Harkin, Chairman,
Hon. Lamar Alexander, Ranking Member,
Senate Committee on Health, Education, Labor, and Pensions,
Washington, DC 20510.
Dear Chairman Harkin and Ranking Member Alexander: I respectfully
reach out to you in strong support of the nomination of David Weil as
Wage and Hour Administrator in the Department of Labor. David is a
distinguished professor at Boston University School of Management who
understands the workings of the business world. My specific experience
working with David demonstrates that he would be both fair and open-
minded in discharging his responsibilities as Administrator and would
be someone who would reach out to all stakeholders.
These comments are based on my almost 40 years of working in
industry, at Corning, Quest Diagnostics as chairman and CEO, and most
recently at Kohlberg Kravis Roberts & Co. before joining the School of
Management as Dean 3 years ago.
I would be pleased to provide additional information if it would be
helpful in the approval process.
Sincerely,
Kenneth W. Freeman,
Allen Questrom Professor and Dean.
______
December 6, 2013.
Hon. Tom Harkin, Chairman,
Senate Committee on Health, Education, Labor, and Pensions,
Washington, DC, 20510.
Dear Chairman Harkin: It is my privilege to endorse Professor David
Weil's nomination as Administrator of the Wage and Hour Division,
Department of Labor.
As the retired vice chairman of Burlington Industries, I have had
close contact with David in his efforts to improve both the working
relationships between management and labor in our industry and to
improve the entire industry's competitiveness.
Burlington Industries was a very large textile manufacturer with
well over 25,000 employees. Because of its sophisticated industrial
relations philosophy, it earned the respect and support of its
employees.
David pioneered many aspects of advanced concepts to provide more
efficient delivery of product through the entire chain of suppliers to
the ultimate consumer, encompassing fiber, fabric and garment
production and retail distribution, while enhancing the role of
employees in each of these segments. In these endeavors, he worked
closely with notable academics--e.g., the late John Dunlop, chairman of
Harvard's Economic Department and former Secretary of Labor--as well as
top industry executives and labor leaders. Beyond his stellar work at
Boston University, he has made major contributions in collaboration
with the Labor and Work Life Programs at the Harvard Law School.
David is visionary, hardworking, intelligent and compassionate
about his fellow countrymen who are wage earners. I find it an honor to
now support David's nomination.
Sincerely,
Bernard A. Leventhal.
______
The Colton Housing Group,
McLean, VA 22102,
December 9, 2013.
Hon. Tom Harkin, Chairman,
Hon. Lamar Alexander, Ranking Member,
Senate Committee on Health, Education, Labor, and Pensions,
Washington, DC 20510.
Dear Chairman Harkin and Ranking Member Alexander: I am delighted
to send a letter of strong support for David Weil in his efforts to be
confirmed as the U.S. Wage and Hour Administrator for the Department of
Labor. I have known David for over a dozen years and have had the
opportunity to work with him closely on several occasions--first, to
collaborate on a study of the high production home builders in the
United States, and second, to co-author a book Bigger Isn't Necessarily
Better (Lexington Books, 2012), based on that study.
David is well-versed not only in the academic world, but in the
business community. When we were working on the study and book related
to the high production home builders in the United States, David was
excellent in understanding the dimensions and concerns of the Nation's
biggest high production home builders. He has developed great expertise
over the last many years recognizing and understanding the workings of
the business world. Not only does he have excellent understanding, but
he is very fair and very good at laying common ground relationships in
order to avoid problems and to help work out the best solution.
I also should comment on David's capacity to work with other
people--both Republicans and Democrats. David is practical and focused
on solutions that will be good for the building community and for the
labor community. He is not an ideologue. I have worked with him in a
variety of settings and have always found him to be a first class
professional and someone who is always anxious to learn and to make
good decisions based on the facts. He is good working with those who
are ``above'' him, and he is good working with those that work for him.
I strongly recommend him without any reservations.
Best regards,
Kent W. Colton,
President.
Response by David Weil to Questions of Senator Harkin, Senator
Alexander, Senator Baldwin, Senator Franken, Senator Isakson, and
Senator
Murkowski
senator harkin
The FLSA contains a provision that allows employers to receive
certifications to pay workers with significant disabilities below
minimum wage; in some cases as low as 50 cents an hour. There have been
egregious violations of these provisions--including in my home State in
the town of Atalissa, where dozens of men working at a turkey
slaughterhouse were kept in deplorable conditions and paid pennies per
hour; this went on for decades. Further, many workers become almost
trapped in these sheltered workshops because they do not receive
training to assist employees to move into competitive integrated
employment.
Question. Are you familiar with this provision of the FLSA? What
will you do to ensure that employers with a 14(c) certificate are
strictly monitored and fulfilling the requirements of the certificate?
Will you work with me to reduce the use of 14(c) certificates and
encourage employers to provide more opportunities for competitive,
integrated employment for people with disabilities?
Answer. I understand that stakeholders in the disability community
have expressed differing views on the subject of the 14(c) exemption
under the FLSA. This is an extremely difficult issue. If confirmed, my
responsibility as Wage and Hour Administrator is to ensure that
employers who employ individuals with disabilities obey the law. I
would pursue strategies to strengthen compliance with section 14(c) and
maximize the impact of its benefits for workers with disabilities,
their employers, families and communities. I share your concerns about
effectively monitoring the use of 14(c) certificates, and I look
forward to working with you and other members of the committee to
provide more employment opportunities for people with disabilities.
senator alexander
According to the information you provided to our committee, I see
you have worked extensively in the world of academics, which I
appreciate. As you know, the Wage and Hour Division is a law
enforcement agency, and its Administrator is tasked with not only
enforcing the law, but managing its 1,800 employees.
Question 1a. Can you point to any direct experience you have
managing a group of employees this big? What is the largest number of
employees you have managed at one time?
Answer 1a. I acknowledge that I have never managed or led an
organization the size of the Wage and Hour Division. But I strongly
believe that my experience over the last 20 years of leading, managing,
and supervising in my academic and applied work and my extensive
knowledge and work with the Wage and Hour Division since 2002 prepares
me well for the challenges I will face in leading the agency.
In my 20 years as a professor, there has not been a time where I
have not been leading and coordinating multiple projects, administering
research grants and budgets, overseeing faculty colleagues, students,
and staff on projects, and evaluating the performance of peers and
subordinates. I have engaged in these activities at multiple research
centers. The number of people I have managed has varied over time. At
various times, I have had 18-20 researchers under my supervision and
management. For example, in 2005, I had five professors, seven
undergraduate researchers, three Ph.D. students, four staff members
operating under my supervision between my research studies for the
Department of Labor, and at Harvard University. I have also managed and
supervised major teaching and administrative activities. A recent
example is the redesign of our MBA curriculum where I led the design
and implementation team over the last year consisting of eight
professors and instructors, 10 teaching assistants, and five staff
members, and coordinated with a second design team of similar size.
My research, teaching, and administrative activities have all
involved hiring personnel, assessing performance, overseeing budgets,
responding to staffing issues, relating to external funders and
research partners and internal administrative units, and setting,
monitoring, and delivering on project milestones and deadlines.
Question 1b. What professional experience do you have in enforcing
any of the more than a dozen major laws the Wage and Hour Division is
tasked with enforcing?
Answer 1b. I have worked on a series of major projects with the
Wage and Hour Division beginning in 2002. Those projects gave me a
detailed understanding of the internal workings of the Wage and Hour
Division at the District Office, Regional Office, and National Office
levels. It has provided me the opportunity to talk with many
investigators in the course of that work at a variety of offices. I
have presented that research in a variety of meetings and offices of
the Wage and Hour Division during the course of that time, allowing me
to understand how investigations are undertaken as well as other
administrative activities of the organization.
Question 1c. Have you ever disciplined a subordinate for violating
workplace policies? If so, please describe the situation and the
subsequent discipline, without providing personal information of the
subject.
Answer 1c. No.
Question 1d. Please provide specific management practices you plan
to implement.
Answer 1d. I have and would bring an inclusive and collaborative
leadership style to the Wage and Hour Division. If confirmed, my
responsibility will be to provide leadership of the agency. This begins
with articulating a clear vision of how the agency will ensure
compliance with the laws entrusted to it, given the priorities stated
by the President and the Secretary of Labor. One of the first
priorities for me would be to reach out both internally and externally
to fully understand views on the agency's mission, direction, and
performance.
In many years of work with the Wage and Hour Division, I have come
to know many of the highly experienced and effective staff at the
national, regional, and district level. Tapping the extensive knowledge
and expertise in the agency would be critical to effectively lead the
agency and I would anticipate working hand-in-glove with the career
staff. Based on my discussions in the first few months, I would assess
the best mechanisms to work effectively with the staff. I believe in
creating clear and agreed upon objectives and goals, delegating
responsibility for specific activities and programs to achieve those
goals, and establishing strong systems of accountability. I would
establish management practices and systems (e.g., planning and
budgeting processes) that would ensure that resources were being
applied to priorities and programs as the mechanism to discharge that
accountability. Based on my prior work with the agency, I believe that
many of those systems are already in place.
Ongoing evaluation would be a key feature of my management approach
if confirmed. I believe in setting targets that can be measured in the
short-, intermediate- and long-term. Establishing clear outcomes for
gauging success would be critical in terms of assuring that the agency
is on course in achieving the priorities of the President, and meeting
the responsibilities established in legislation administered by the
agency and overseen by Congress.
My approach to management would also reflect the principle of
transparency I described in my statement for the record. I believe that
all parties inside and outside the agency are better served if they
understand what the Wage and Hour Division is seeking to do, how it
intends to do so, and its ongoing performance in meeting its
objectives.
Question 2a. What is the largest budget you have managed?
Answer 2a. I have managed research projects with overall budgets of
approximately $2 million.
Question 2b. How do you plan to effectively oversee a $230 million
budget?
Answer 2b. Budgets provide a critical mechanism for setting
expectations about programmatic activities and objectives in the
budgeting period internally and with Congress through authorization of
funds. Budgets also provide a critical method for linking the
objectives and activities of an organization like the Wage and Hour
Division with the resources consumed in pursuing them. If confirmed, I
would therefore work closely with the staff of the Wage and Hour
Division in all phases of the budget process, and use them as a means
of gauging resource allocation against plans for the upcoming budget
period. Some of my applied work with different organizations has been
on developing internal management and budget practices to allow
organizations to both use budgeting as an instrument of financial
control as well as of strategic management and evaluation. I would
bring this approach to my oversight of the WHD budget.
Question 2c. In your interview with committee staff, you stated you
had not reviewed the Wage and Hour Division's Fiscal Year 2014
Congressional Budget Justification. Have you since read it? Do you have
any experience with the Federal budget process? If so, please provide
specific examples.
Answer 2c. I have reviewed prior Wage and Hour Division Budget
Justifications over the years as well as other Federal budget documents
as part of my prior work with the agency under both the Bush and Obama
administrations. I have used those documents as a way of understanding
resource allocation in various parts of the Labor Department and other
government agencies. If confirmed, I would work closely with the staff
of the Wage and Hour Division to understand those documents given my
responsibilities as Wage and Hour Administrator.
Question 2d. Please explain whether you believe reading the budget
plan for the agency you would oversee before you are confirmed is
consistent with good management practices.
Answer 2d. Reviewing and monitoring all relevant budget documents
is an important management practice that I have undertaken in all
projects that I have undertaken. I will review all relevant budget
documents as a basic part of my responsibilities.
Question 3a. You have worked as a consultant for several entities,
including the AFL-CIO, correct? Please explain, in detail, the work you
did for the AFL-CIO in 2012 and 2013?
Answer 3a. I worked with the AFL-CIO in those years facilitating an
annual senior staff retreat held over 2 days. The retreat was aimed at
bringing the senior department managers of the AFL-CIO to consensus on
their plans for the upcoming year as well as helping them develop
mechanisms to make sure that the different departments followed through
on their specific plans and coordinated across department. The focus of
this work was effective internal management given chosen overall
objectives and gaining top level consensus among the staff with those
plans.
Question 3b. Please provide the contract you had with the AFL-CIO
to the HELP Committee for review.
Answer 3b. I am attaching my invoice for facilitating the January
2013 retreat.
MEMORANDUM
To: Jon Hiatt/Thea Lee, AFL-CIO
From: David Weil, Boston University
Re: Expenses for AFL-CIO retreat 2013
Date: February 3, 2013
The following expenses were incurred for my participation as
facilitator in the AFL-CIO Retreat from January 14-15, 2013. I have
scanned the relevant receipts for them and attached them to this
invoice. The AFL-CIO should have my W-9 information from the prior work
in facilitating sessions in 2012.
FEES
Four days (2 days preparation / 2 days facilitation)
$3,000 / day............................................. $12,000.00
EXPENSES
Plane fare (Boston-BWI-Boston)........................... $169.80
Taxi/Parking............................................. $50.00
Food..................................................... $31.97
------------
TOTAL EXPENSES......................................... $251.77
------------
TOTAL FEES and EXPENSES.............................. $12,251.77
The reimbursement check can be sent to my home address: David Weil,
22 Glenn Road, Belmont, MA 02478.
Please contact me if you have any questions regarding this invoice.
Question 3c. Do you plan to recuse yourself from any action in
which AFL-CIO or its locals are a party or represent a party involved?
Answer 3c. I have signed a conflict of interest agreement with the
Office of Legal Counsel of the U.S. Department of Labor that clearly
states that I will cease all consulting work and that I will not
participate personally and substantially in any particular matter
involving specific parties in which a former client of mine is a party
or represents a party for a period of 1 year after I last provided
service to that client. This would include the AFL-CIO.
Question 3d. Are you currently performing any work for the AFL-CIO?
If so, please explain it in detail.
Answer 3d. I am not currently performing any work for the AFL-CIO
and have not done so since the senior staff retreat held in January
2013.
Question 3e. Did you perform any work for the AFL-CIO prior to
2012? If so, please explain in detail the work you performed, whether
you were paid, and if so, how much you were paid.
Answer 3e. I facilitated the senior staff retreat for the AFL-CIO
for the first time in 2011, providing similar services as described
above. I was paid $15,000 for those services in 2011. As noted in my
disclosure documents, I was a Trustee of the Board of the National
Labor College, affiliated with the AFL-CIO, from 1999 to 2007. I was
not compensated for serving as a Trustee.
Question 3f. Have you consulted for any other unions--either now or
in the past? If so, please disclose which union(s), explain in detail
the work you performed, whether you were paid, and if so, how much you
were paid.
Answer 3f. I have disclosed all professional services provided to
unions and other organizations during the reporting period required in
my OGE and Senate HELP disclosure forms.
Question 4. In a letter of support for your nomination sent to the
HELP Committee, the International Brotherhood of Electrical Workers
(IBEW), Local 103 said that they are in ``constant contact'' with you
directly to discuss various issues. Is this accurate? Are you paid for
your work with this union? If confirmed, will you recuse yourself from
any issue involving the IBEW?
Answer 4. I worked as a mediator in a joint project between the
International Brotherhood of Electrical Workers (IBEW) Local 103 and
the National Electrical Contractors Association--Boston (NECA) for
several years in the late 1990s and early 2000s. I have from time to
time spoken with the business manager of Local 103 and the executive
manager of NECA--Boston (once or twice per year at the most), but this
was always on an informal and non-compensated basis.
Question 5. After I have a chance to review your forthcoming book,
``The Fissured Workplace: Why Work Became So Bad For So Many And What
Can Be Done To Improve It,'' will you commit to answering any followup
questions I may have about it?
Answer 5. I would be happy to discuss my book with you.
Question 6a. Your name is included in NELP's report, ``Just Pay:
Improving Wage and Hour Enforcement at the United States Department of
Labor'', as a member of the working group that developed the report.
What was your involvement in reviewing or writing that report? Please
elaborate, in detail, the work you did on the report.
Do you support all of the recommendations in the report or
otherwise agree with them?
Answer 6a. As an academic expert on workplace regulation and labor
standards, I was asked to be a member of the working group in 2008. I
agreed to do so and participated in a series of conference calls during
2008 and 2009. We were asked to periodically read and comment on drafts
of the report's discussions proceeded which I did.
As a working group member, I provided comments on the report. We
were not asked to support all recommendations in the report, but to
provide our input regarding them. I did not agree with all of the
recommendations included in the report at the time nor do I now.
Question 6b. In particular, the report recommends that the Wage and
Hour Division,
``hold subcontracting (joint) employers accountable for wage
and hour violations of their subcontractors using the broad
employment definitions in the Fair Labor Standards Act and the
`joint employer' regulation.''
Do you agree with that recommendation?
Answer 6b, The issue of responsibility in complicated employment
relationships has been an area of analysis and policy of concern to me
for some time and remains one. Understanding how to apply legal
responsibilities of the FLSA and other labor standards has been an
increasingly challenging one for the Wage and Hour Division for
decades. I would anticipate that to be the case going forward. This
would require a more nuanced review than implied in the broad
recommendation.
Question 6c. The report also recommends that the Wage and Hour
Division ``provide guidance to investigators who are told by an
employer that a complaining worker is an independent contractor'' and
states that ``the guidance should note that a worker performing labor
or services is presumed to be an employee absent employer proof to the
contrary.'' Do you agree with that recommendation?
Answer 6c. The recommendation is a broad statement that does not
provide specific guidance required for the Wage and Hour Division. If
confirmed, I would review policies for investigations in areas of
concern like the use of independent contracting.
Question 6d. Do you support issuing new guidance or interpretations
or amending the Field Operations Handbook (FOH) to instruct
investigators to presume a worker performing labor or services is an
employee even if the employer has stated that the worker is an
independent contractor?
Answer 6d. If confirmed, I would see it as part of my
responsibility to rigorously review with the Wage and Hour Division
staff the adequacy of Field Operations Handbook in achieving the
objectives established by the laws administered by the WHD.
Question 7. Should employers be required to provide their employees
with detailed information regarding such things as how they are
classified, their rate of pay, and/or any Fair Labor Standards Act
exemptions that apply to their employment? Should employers have to
provide written documentation of all this information to their
employees?
Would you support new rules requiring this disclosure? Should
employers be required to keep records of their employee pay for more
than 3 years, as currently required? If so, for how long?
Answer 7. While I am unfamiliar with the particular disclosure
proposal you describe, as a co-director of a research project at
Harvard University on transparency, I have studied the application of
disclosure requirements across many different areas of public policy in
the United States. I would look carefully to evaluate whether
disclosure in this case and all cases would effectively improve
compliance with laws administered by the Wage and Hour Division. If
confirmed, I would welcome discussion with the committee regarding this
issue.
Question 8a. At a time of limited budgets for Federal agencies, do
you support coordinating with third party groups to accomplish the Wage
and Hour Division's goals? If so, what specific duties do you think are
appropriate for third party involvement?
Answer 8a. The investigation and enforcement of the laws
administered by the Wage and Hour Division are inherently governmental
and as such are the sole responsibility of the agency.
Question 8b. If confirmed, will you ensure that third party, non-
governmental groups will not be permitted to carry out the legal duties
of the Wage and Hour Division as delegated to it by Congress?
Answer 8b. If confirmed, I assure you that Wage and Hour
investigators and staff will be solely in charge of investigating and
enforcing the laws under the Division's jurisdiction.
Question 8c. Are you familiar with New York's ``Wage Watch''
program started by then-State Labor Commissioner Patricia Smith? Would
you support the implementation of this program within the Wage and Hour
Division?
Answer 8c. I am generally familiar with the ``Wage Watch'' program.
I would not implement such a program at the Wage and Hour Division if
confirmed.
Question 9. At a time when our economy continues to recover from an
unemployment rate high of 10 percent in 2009, should the Federal
Government encourage job creation and retention among employers
regardless of their business model? Is it a wise use of taxpayer
resources to target small employers who are creating jobs?
I read an op-ed from the USA Today earlier this year written by a
mother down in Arkansas who started a consignment business for
children's clothing out of her home. Today, her business has grown to
over 62 locations in 20 States. Her entrepreneurial business model has
given families the opportunity to earn a little extra money by selling
their children's old clothes. Yet, the Wage and Hour Division has
investigated the mother because she doesn't pay the parents who
volunteer at these events to get the first crack at shopping before the
general public. Is this a wise use of the agency's limited resources?
Answer 9. I am unfamiliar with the particular circumstances of the
case being discussed in the USA Today op-ed. However, I believe that it
is the responsibility of the agency to ensure compliance with all of
the statutes it enforces.
Question 10a. Last month, the HELP Committee held a hearing titled,
``Payroll Fraud: Targeting Bad Actors Hurting Workers and Businesses,''
focusing largely on employers' use of independent contractors. At the
hearing, the president of a customized logistics and delivery company
in New York testified that his company works with 225 independent
contractors, all of whom enjoy the flexibility of the job but also the
ability to earn more pay. When millions of Americans are still looking
for work, is it more beneficial for the Federal Government to encourage
job creators in this sector or target them for enforcement even when
there are no complaints from independent contractors engaged with the
company?
Answer 10a. It is important that responsible employers who use
legitimate forms of independent contracting and direct employment are
not put at a competitive disadvantage by the inappropriate use of
independent contracting that takes the form of misclassification.
Question 10b. Do you see a role for the Wage and Hour Division to
play in protecting the right of individuals and businesses to continue
to voluntarily choose to use the independent contractor business model?
Answer 10b. I believe that the Wage and Hour Division can play a
role in clarifying for all parties where the use of independent
contracting is a legitimate form of business organization and where its
use can result in misclassification. Such guidance can increase
compliance with the laws administered by the WHD and assist both
workers and employers.
Question 10c. Do you support allowing individuals to choose to be
independent contractors?
Answer 10c. Independent contracting is a well-established and often
appropriate form of business organization, and I support its use where
it is used legitimately, as defined by established multi-attribute
criteria established in court and agency decisions and guidance.
Question 10d. Do you think the Wage and Hour Division should place
more requirements on businesses that use independent contractors? If
so, what types of requirements for businesses are appropriate?
Answer 10d. I am concerned about misclassification of workers as
independent contractors which has become a more prevalent problem in
many industries. If confirmed, I would review the approaches taken by
the Wage and Hour Division in addressing this issue and evaluate their
effectiveness at addressing this problem.
Question 11. During your time at either Boston University or
Harvard University Kennedy School, did you or your department use
student interns? Were they paid or unpaid?
Do you support the use of unpaid internships in colleges and
universities?
As you are likely aware, the issue of whether unpaid internships
are permitted under the Fair Labor Standards Act (FLSA) has attracted
public attention. If confirmed, will you direct the agency to
investigate the use of unpaid internships in any way?
Answer 11. I have always paid students working in teaching,
research, and administrative projects for me at Boston University and
at the Harvard Kennedy School. While I am generally aware of the issue
of unpaid internships, I have not been involved in any WHD initiatives
in this area nor examined the issue closely. If confirmed, I will
evaluate the approaches taken by the agency in this area and assess
whether adjustments are appropriate.
Question 12. In your written testimony you state that if confirmed
you will,
``ensure that both existing and new [Wage and Hour Division]
initiatives were carefully evaluated and that appropriate
adjustments were made in light of those evaluations.''
Will you issue a detailed report of those evaluations and any
changes made to Chairman Harkin and myself?
Answer 12. I do not plan, nor am I required, to issue a written
report of my evaluation. I would, however, be happy to make myself
available to discuss with Members of the committee decisions I would
make based on my assessment of the agencies current policies and
practices.
Question 13a. Do you plan to increase the utilization of directed
investigations at the Wage and Hour Division?
Answer 13a. As noted in my hearing, if confirmed, I would use
objective information to prioritize where the WHD should focus its
attention going forward and assess what tools would be most effective
to improving compliance with the laws administered by the WHD. I
believe that the agency should balance the use of complaint and
directed investigations in pursuing its objectives. At this stage, I am
not able to assess whether the current mix of investigations meets
those objectives.
Question 13b. If so, in what industries would you expect to
investigate?
Answer 13b. As noted, I cannot answer that question at this time.
Question 13c. Will you commit to not diverting resources from
complaint-based investigations toward directed investigations?
Answer 13c. I will seek a balance of directed and complaint
investigations given the larger need to improve compliance with the
laws administered by the Wage and Hour Division.
Question 13d. Will you commit to treating all complaints equally
based on the merits, not based on the industry?
Answer 13d. Complaint investigations will always be an important
part of the work undertaken by WHD investigators. I will commit to
creating clear, transparent, and fair guidance on the prioritization of
complaint investigations that can be applied in a consistent manner
across the agency.
Question 14a. Do you believe that there is an inherent unfairness
in the workplaces of fissured industry workplaces?
Answer 14a. I am concerned about instances where business
organization is used as a means of avoiding compliance with legal
requirements, and where that may give these businesses a competitive
advantage against other businesses that are responsibly complying with
the law or exceeding its requirements.
Question 14b. If so, how will you differentiate between what you
personally may view as unfairness in the workplace versus what is
actually a labor violation?
Answer 14b. If confirmed, I would base the policies and practices
related to Wage and Hour Division enforcement on how relevant laws and
regulations define compliance or non-compliance.
Question 15. According to a slide on your July 29, 2011, YouTube
video, you state that there should be ``polices to re-balance (not end)
business decisions on fissuring,'' including ``adjusting employment
laws/notions of liability'' and ``stopping pernicious forms of
fissuring.'' Please explain, in detail, what you meant by these
statements.
Specifically, please include what employment laws you thought
needed to be adjusted and how so? What ``notions of liability'' did you
think needed to be adjusted? What are ``pernicious forms of
fissuring''? Do you still hold these views? Will you make any attempt
to ``adjusting employment laws/notions of liability'' if you are
confirmed as the WHD Administrator?
Answer 15. Pernicious forms of fissuring are those types of
business entities that are created principally to avoid legal
obligations under the FLSA as well as other workplace and tax laws. In
many cases, these are entities that regulatory agencies or courts have
found to be used as mechanisms to avoid compliance. In the video, I was
commenting on policy implications in my academic capacity based on my
extensive research on the impact of business organization and industry
structure on compliance. If confirmed as Wage and Hour Administrator,
my responsibility is to administer existing laws.
Question 16a. As you are likely aware, the Senate may vote soon on
an increase in the minimum wage to $10.10 per hour, with future
increases tied to the Consumer Price Index (CPI). Do you support that
increase?
Answer 16a. President Obama supports the increase in the minimum
wage to $10.10 provided in the Harkin-Miller bill and so do I.
Question 16b. Do you support a larger increase? Please explain why
you would or would not support a larger increase.
Answer 16b. A family trying to raise children with a parent working
full-time at the minimum wage will fall below the poverty line given
the current minimum wage. President Obama thinks this is wrong and
strongly supports an increase in the minimum wage. I agree with the
President and support the increases incorporated in the Harkin-Miller
bill.
Question 16c. Earlier this year, economist and New York Times
columnist Paul Krugman wrote that most economists would ``agree that
setting a minimum wage of, say, $20 an hour would create a lot of
problems.'' Do you agree with that statement? If so, should indexing
sunset once the minimum wage reaches $20 per hour?
Answer 16c. Studying the impact of minimum wage increases on
employment is one of the most heavily examined areas in labor economics
and the best studies indicate that the effects of increases of the
minimum wage to $10.10 on employment would be negligible. At the same
time, it would have significant effects on increasing earnings in
millions of households, in some cases raising those households out of
poverty. The increases discussed in Dr. Krugman's article are far
beyond the range being contemplated in discussions of the Federal
minimum wage.
Question 16d. Do you support the use of the tip-credit? Do you
believe the tip-credit should be higher or lower than current law
requires?
Answer 16d. The existing wage rate for tip-credit has not been
adjusted since 1991. President Obama believes that an increase in the
minimum wage for tipped employees is long overdue, and I agree.
Question 17. In March, the HELP Committee held a hearing on raising
the minimum wage. One witness, a franchise owner from New Jersey
testified that the median hourly earnings for servers in the restaurant
industry range from $16 per hour for entry level employees to $22 per
hour for more experienced employees, after tips. These amounts far
exceed the current minimum wage, and show the robust earning potential
in the restaurant industry. In followup questions, it was pointed out
that the Occupational Employment Statistics (OES) from the Bureau of
Labor Statistics, found the median hourly earnings for servers to be
only $8.92 per hour, including tips. With an obvious discrepancy that
the restaurant industry believes is due to issues with the OES survey,
there is a concern that discrepancies exist in other parts of the
survey as well. The Wage and Hour Division relies on the OES survey for
other areas of enforcement such as establishing prevailing wage
determinations for several government contracts. Are you concerned that
the Wage and Hour Division could be relying on inaccurate wage
information? If confirmed, what will you do to ensure only the most
accurate data is used for important agency determinations?
Answer 17. As someone trained in labor economics, I believe that it
is important that wage data accurately reflect relevant labor market
conditions. If confirmed, I would be interested in learning more about
the issues raised in your question.
Question 18a. In September of this year, the Department of Labor
finalized a new rule that would greatly narrow the application of the
companionship exemption under the Fair Labor Standards Act (FLSA), so
that many in-home care givers would have to be paid overtime. The new
rule will greatly increase costs for elderly individuals and their
families. If confirmed, you will have a major role in implementing the
Final Rule, as it won't go into effect until 2015.
Throughout the rulemaking process many groups, including the
association that represents State Medicaid directors, voiced opposition
to the rule. Will you reach out to those groups to discuss and address
their concerns?
Answer 18a. I am aware generally of the concerns expressed by
Medicaid Directors that the rule could impact State budgets and the
provision of certain services. If confirmed, I am committed to working
with the National Association of Medicaid Directors, State Medicaid
directors directly, and other stakeholders, to address their concerns
without compromising the integrity of the rule.
Question 18b. Do you agree that as a result of the rule, costs for
in-home care will rise?
Answer 18b. The Department's economic analysis shows that the
rule's major costs, which will not be lasting, will be the opportunity
costs of the time managers spend shifting schedules, the reduction in
work hours of some direct care workers, and reduced overtime payments
to direct care workers. The rule's major benefits, which are lasting
effects of the Final Rule, will be reduced turnover of direct care
workers and higher pay for those low-wage workers.
Question 19. In your written testimony you state that one of the
principles with which you will lead the Wage and Hour Division, if
confirmed, is fairness. You state,
``This fairness principle requires administering labor
standards laws in a way that creates the right incentives,
making those who comply with our workplace laws stronger, not
weaker, in the markets in which they operate.''
Does your fairness principle include using a strong and active
compliance assistance program for employers who are faced with keeping
up with an ever changing set of wage and hour laws?
Answer 19. Yes.
Question 20a. At the start of the Obama administration, the Wage
and Hour Division ended the longstanding practice of providing Opinion
Letters that answered questions about specific applications of labor
laws. These letters were viewed a useful tool by employers and
employees alike. The Opinion Letters were replaced with administrator's
interpretations that only give broad opinions on a subject chosen by
the agency, leaving many specific details unanswered. To date, the Wage
and Hour Division has only issued a total of five administrator's
interpretations.
Do you think stakeholders in general benefit from being able to ask
fact specific questions about the application of the law, and receive
an appropriate response in return?
Answer 20a. I believe it is important for all stakeholders to
understand their responsibilities and rights under the law. Providing
that information in a clear, consistent, and accurate manner to all
parties would be an operating principle for me if confirmed.
Question 20b. Will you commit to restoring a more robust and
interactive compliance assistance system so folks can spend less time
trying to decipher the law and more time growing successful businesses
and creating new jobs?
Answer 20b. I believe that helping employers understand their
responsibilities clearly under the law is extremely important. Finding
ways to help them understand how the law works through different
methods of education and outreach helps to achieve the objectives of
the laws administered by the WHD. If confirmed, I would examine
different methods to help employers understand their responsibilities
so that businesses can act responsibly as they undertake the crucial
role of creating good jobs.
Question 21. Regulations issued under the Fair Labor Standards Act
(FLSA) have been criticized for providing little guidance to employers
or employees on the standards for exempt status under the Act.
Employees exempted under the FLSA may not be subject to overtime or
minimum wage. Terms like ``administrative, managerial and
professional'' are not subject to an easy definition and the terms used
to define them are often unclear.
Should the Department of Labor provide safe harbors for exemptions
based on clearly understood standards?
Do you believe that it is appropriate to recognize an individual as
an exempt managerial employee when that person supervises two or more
other employees?
Do you plan on promulgating any new regulations regarding the
interpretation of the exempt definitions?
Answer 21. The issue of exemptions under the FLSA is a complicated
one. If confirmed, I would examine the issues regarding exemptions and
their application given current and prospective issues in the workplace
carefully and would look forward to working with the committee as well
as stakeholders in making decisions in this area.
Question 22a. In your written testimony you state that the Wage and
Hour Division has ``a range of tools available to it.'' You used
education and outreach as specific examples, but what other tools do
you believe are at the agency's disposal and how do you plan to use
them?
Do you plan on adding new ``tools'' to the Wage and Hour Division's
enforcement mechanisms?
Answer 22a. While I have no plans to add any ``new tools,'' if
confirmed, I will review the use of the existing spectrum of
intervention tools to achieve the objectives set out in the laws
administered by the Wage and Hour Division and evaluating their use
relative to the problems facing the agency.
Question 22b. If confirmed, will you commit to utilize notice and
comment rulemaking under the Administrative Procedure Act (APA) to
implement any new ``tools''?
Answer 22b. I will follow the requirements of the APA, where
applicable.
Question 22c. Have you written about particular regulations or
regulatory policies that you think would help the Wage and Hour
Division do its job? If so, what are those regulations?
Answer 22c. As an academic, I have written about policy
implications arising from my empirical studies of labor standards. If
confirmed as Administrator, however, my responsibility would be to
implement existing laws and regulations. I would base any new
initiatives on regulations on the facts and based on reviews undertaken
as the Wage and Hour Administrator.
Question 23a. In your interview with committee staff, you stated
that you do not want employers who follow the law to be punished by the
market for doing so. Please elaborate on ``punished by the market''?
Answer 23a. I used this phrase to describe the situation where a
responsible employer that complies with the law is put at a competitive
disadvantage against an employer who violates the law and is able to
therefore operate at lower costs arising from those violations.
Question 23b. Do you believe if employers use a fissured business
model, but they follow the law, they can still put their competitors at
a disadvantage? If so, do you view the role of the Wage and Hour
Division Administrator to remedy those competitive disadvantages?
Answer 23b. The responsibility of the Wage and Hour Division is
ensuring that employers comply with the law. My focus would be to
ensure that the policies and practices of the WHD improve compliance
with laws.
Question 24. The Davis-Bacon Act law is clear: prevailing wage
requirements are required where the Federal Government or the District
of Columbia ``is a party, for construction, alteration, or repair,
including painting and decorating, of public buildings and public works
of the Government or the District of Columbia.'' 40 U.S.C.
Sec. 3142(a). Do you agree that when the Federal Government or the
District of Columbia is not a party to the project, and no Federal
dollars are spent on the project, the Davis-Bacon Act does not apply?
If confirmed, will you commit to reviewing the Wage and Hour
Division's recent rulings and guidance that dramatically expand the
scope of the Davis-Bacon Act?
Do you agree with the Department of Labor's novel ruling that the
Davis-Bacon Act applied to the CityCenter construction project in
downtown Washington, DC? Do you agree that because the project will
create an economic benefit by supplying jobs and tax revenue for the
city, it is a ``public work'' project?
Do you think Department of Labor's decision on the CityCenter
project computes with your notion of ``fairness''?
Do you agree with the May 24, editorial from the Washington Post
calling the decision a,
``strained notion of a public project [that] contradicts any
common-sense definition, or that it could apply to--and raise
the cost of--all future commercial redevelopment of land
belonging to the District or to the Federal Government
anywhere?''
Do you agree that if there is no Federal contract or Federal money
spent on a construction project, the project is not being performed to
any government specifications, the construction project is not designed
for any specific government use, or that there is no expectation of
government or public use of the project, then the Davis-Bacon Act is
not applicable?
Answer 24. I believe that decisions about the applicability of the
Davis-Bacon Act require a thorough evaluation of the project in
question. With regards to the CityCenter case, this is an issue that I
have general understanding however, I've not dealt with the issue
personally. If confirmed, I would be interested in learning more about
the Department of Labor's decision in this case.
Question 25a. Many decisions that were made by the political
leadership at the Wage and Hour Division under the Obama administration
have been made without input from various stakeholder groups. For
example, on March 22, the Wage and Hour Division issued guidance on the
application of the Davis-Bacon Act to members of survey crews, changing
over 50 years of precedent. The guidance was based on a single request
from the International Union of Operating Engineers, without input from
other stakeholders. Should you decide to issue any new policies,
interpretations, or guidance, will you commit to a full and transparent
process with the input of all affected stakeholders as opposed to a
select group?
Answer 25a. Yes. As noted in my statement for the record,
transparency including engagement with stakeholders is a fundamental
principle to me.
Question 25b. Senator Roberts and I currently have an outstanding
document request with the Wage and Hour Division about their recent
guidance, Memorandum No. 212, ``Applicability of Davis-Bacon labor
standards to members of survey crews.'' So far, we have only been
provided with a limited number of documents. If confirmed, will you
commit to working with us on the entirety of our document request?
Answer 25b. If confirmed, I am committed to working with you on any
issues of interest to the committee.
Question 26a. Do you support the use of compensatory time in lieu
of overtime pay? Should the Fair Labor Standards Act (FLSA) be amended
to permit private sector employees to voluntarily accept compensatory
time in lieu of overtime pay?
Answer 26a. There are many time pressures on modern families. We
should give serious consideration to policies that help families deal
with the competing demands they face. The Fair Labor Standards Act
requires that covered workers be promptly paid for overtime worked. I
would be concerned about any legislative proposals that would dilute
the value of overtime pay.
Question 26b. Does your current employer, Boston University offer a
form of compensatory time?
Answer 26b. Boston University provides provisions for compensatory
time both under its contracts with unionized employees and in the
employee policies covering non-represented, non-faculty personnel.
Question 26c. Do you support the use of compensatory time by
Federal employees?
Answer 26c. Yes.
Question 26d. Would you support curtailing the use of compensatory
time by Federal employees?
Answer 26d. Decisions regarding the use of compensatory time for
most Federal employees fall under the jurisdiction of the Office of
Personnel Management.
senator baldwin
Direct Care Workers
As our Nation ages, members of the baby boomer generation are
facing health care decisions for their parents and considering future
health decisions for themselves, and their families. More Americans are
choosing to receive long term care at home. It is of the utmost
importance that these workers provide high quality care and are
adequately compensated for their work.
In September, the Wage and Hour Division announced a long-sought-
after final rule extending the Fair Labor Standards Act's minimum wage
and overtime protections to most of the Nation's direct care workers
who provide home care assistance to seniors and people with illnesses,
injuries, or disabilities.
This welcome change, effective January 2015, will ensure that
nearly 2 million workers, including nearly 90,000 in Wisconsin, have
the same fundamental workplace protections already provided to most
U.S. workers in other fields. It also will ensure that individuals and
families who rely on the assistance of direct care workers have access
to consistent and high quality care.
Question 1. Dr. Weil, as Administrator, what will you do to help
families, businesses, and affected workers understand, comply with, and
benefit from the new requirements?
Answer 1. The recently finalized rule extends minimum wage and
overtime protections to in-home caregivers across America--protections
they are currently denied. I am aware that there have been concerns
expressed by the industry and some groups about the potential impact of
the rule. If confirmed, I am committed to an open dialog with this
committee and others on appropriate ways to address those concerns
during the implementation phase until the rule will become effective in
January 2015. I believe an aggressive outreach campaign will help all
stakeholders understand and comply with the new requirements.
Minimum Wage
Dr. Weil, your nomination hearing comes on the heels of nationwide
protests in support of raising the minimum wage. In my home State of
Wisconsin last week, we saw fast food workers in Milwaukee, Madison,
and Wausau strike for higher wages--wages that support working
families. Thanks to Chairman Harkin's leadership on this issue, I am
very hopeful that we'll see the full Senate vote to increase the
minimum wage soon--this will be a long overdue increase for hardworking
Americans across the country. It seems to me that there are a few myths
surrounding the national conversation about raising the minimum wage
and government social welfare programs that need to be dispelled as we
move toward this vote and Dr. Weil, I'd like your thoughts on two.
The first is that it's not necessary to raise the minimum wage
because minimum wage workers are students or teenagers who are not
supporting families. And yet we know this isn't true. Nearly 90 percent
of workers who would benefit from increasing the minimum wage are at
least 20 years old, and 55 percent work full-time. More than three
quarters of minimum wage earners are parents and 70 percent are in
families with incomes of less than $60,000 a year.
The second myth is that low-income Americans want to be on Federal
assistance programs. In fact, they must rely on government programs
because they don't earn enough money. Therefore, raising the minimum
wage could allow Americans who currently rely on government assistance
programs the ability to be more self-sufficient--and that is much
closer to obtaining the American Dream.
Question 2. Dr. Weil, can you help us dispel these myths?
Answer 2. The profile of minimum wage earners has changed
tremendously in the ways described in your question. Perhaps the best
way to see this are looking at estimates of who would be affected by an
increase of the Federal minimum wage to $10.10 as proposed in the
Harkin-Miller bill. Nearly 90 percent of those who would benefit would
be 19 years or older and approximately 58 percent of those are women,
many of whom are raising children.
The modest minimum wage increases we've seen have not kept pace
with the higher costs of basic necessities for working families. In
fact, the minimum wage has fallen 30 percent in value since 1968. The
current level of the minimum wage therefore undermines the goal of the
minimum wage providing a basic platform for people to get a solid
footing in the labor market and economic opportunity.
Family and Medical Leave Act (FMLA)
Dr. Weil, my last question is about the Family and Medical Leave
Act--or FMLA. As you know, this is a Federal law that guarantees
eligible employees up to 12 weeks of unpaid leave each year to care for
a newborn, a newly adopted child or a seriously ill family member, or
to recover from their own serious health conditions, including
pregnancy. As Administrator, you would have responsibility for
enforcing this law.
Now, we know that about 40 percent of the workforce is not eligible
for leave under the FMLA because of the current eligibility
requirements. Millions more Americans cannot afford to take unpaid
leave, so these protections are still out of reach.
Question 3. Dr. Weil, can you share any thoughts on making the FMLA
accessible to more hardworking Americans? It's up to Congress to change
statutory eligibility requirements to provide for greater access to
FMLA benefits. But as Administrator, what would you do to increase
outreach and education around current FMLA benefits? How might you
consider working with employers, States, and cities interested in
providing access to paid leave--a benefit not provided for under the
FMLA, but an important policy that provides for greater economic
security?
Answer 3. I believe that a fundamental role of the Wage and Hour
Division is providing outreach and education to all stakeholders--
workers, employers, worker advocates, and business associations and the
public--about their rights and responsibilities under the FMLA as well
as other laws administered by the agency. The FMLA is a landmark piece
of legislation in ensuring protections of working people in caring for
members of their family. If confirmed, I look forward to working with
you, and the committee as well, as stakeholders in making sure we are
achieving the critical objectives embodied in the FMLA.
senator franken
Question 1. Worker misclassification is a growing problem that
threatens workers and undercuts law-abiding employers. Worker
misclassification is a significant problem in Minnesota, particularly
in the construction industry. Why do you think worker misclassification
is so prevalent? In the absence of changes to the current Federal
approach, do you think the trend in misclassification will continue?
How will you improve Federal efforts to deter worker misclassification?
Answer 1. The majority of employers using independent contractors
to undertake work are doing so in a responsible manner--for example
using independent contractors to do specialized work that the company
itself does not have the capacity or expertise to undertake.
Misclassification, however, is a serious matter involving changing the
designation of what is for all intents and purposes an employment
relationship into an independent contracting relationship, as a means
of avoiding costs, shifting the liability, or otherwise avoiding legal
responsibilities. If such misclassification is allowed to occur, it
creates the wrong incentives in a market: companies that are able to
shift legal responsibilities and costs can gain competitive advantage
and underbid other companies that are abiding by the law. That allows
the practice of misclassification to spread and become more prevalent.
It is therefore important to take actions that stop the tilting of the
market toward non-compliance.
Although I have not had a role in the current Wage and Hour
Division policy regarding misclassification, I believe that it has made
positive steps in addressing this problem. If confirmed, I would want
to carefully evaluate the steps it has taken and assess the
effectiveness of those policies and the need for further adjustments. I
would welcome the opportunity to discuss your and the committee's views
on this matter.
Question 2. In 2011, the Minnesota Department of Labor and Industry
entered into a memorandum of understanding with the U.S. Department of
Labor to improve worker misclassification enforcement efforts. It is my
understanding that this effort has been helpful, but there is still
ample reason to be concerned about increasing misclassification in
Minnesota and elsewhere. How will you improve coordination between the
Department of Labor and States like Minnesota to support efforts to
prevent misclassification?
Answer 2. I am aware that the Department of Labor has entered into
memoranda of understanding with a number of States regarding the
coordination of misclassification efforts. Given the importance of
misclassification, I would want to carefully evaluate those initiatives
including those in Minnesota to understand their purposes, progress,
and impact and reach out to the State agencies involved in those
efforts as well as other stakeholders. I would once again welcome the
opportunity to discuss your and the committee's views on this matter.
senator isakson
Question 1. Employee Misclassification was the subject of a recent
HELP Subcommittee on Employment and Workplace Safety hearing. As the
Ranking Member of that committee and as a businessman who ran a company
employing over 800 independent contractors, the issue of
misclassification of employees is of great interest to me. Do you feel
that the enforcement of current law is enough to keep employers from
misclassifying workers, and if not, what do you propose to do to help?
Answer 1. Independent contracting is a legitimate form of business
organization found in many parts of our economy. However,
misclassification of employees as independent contractors is a very
serious issue that can result in non-compliance with laws.
Misclassification is a serious problem not only because it deprives
workers of compensation and protections that they are due, but because
it disadvantages law-abiding businesses that do not misclassify their
employees, and harms responsible taxpayers. When a business
misclassifies employees in order to cut costs, it makes it harder for
those employers who play by the rules to succeed. This can create
market incentives that encourage other employers to misclassify their
workers.
If confirmed, I would seek to understand where misclassification is
likely to be a problem and review appropriate interventions to respond
to it. I would look forward to discussing this important problem with
you and the committee.
Question 2. Your written testimony states that employer,
``non-compliance [with labor laws] may arise from intentional
and sometimes egregious efforts to evade legal requirements.
Those cases require stronger tools of enforcement [.]''
Please provide examples of what you believe is ``egregious''
behavior and what you view as the ``stronger tools of enforcement''
available to WHD.
Do you expect to use, or increase the use of, WHD's discretionary
suspension and debarment authority under the Service Contract Act or
the Davis-Bacon Act to suspend or debar Federal contractors?
Do you expect to use WHD's discretionary suspension and debarment
authority under the Federal Acquisition Regulation to suspend or debar
Federal contractors for Fair Labor Standards Act violations?
Answer 2. Egregious cases arise where an employer is intentionally
undertaking activities that are primarily motivated by an effort to
avoid legal obligations under the FLSA as well as other workplace laws,
rather than from a failure to understand responsibilities under the
law. Because such actions can put an employer who is violating the law
at a competitive advantage relative to responsible businesses, it is
appropriate to use tools of enforcement to stop that behavior. This
will have the effect of creating a level playing field based on
compliance.
I plan to review the use of different authority and interventions
available to the Wage and Hour Division if confirmed as Wage and Hour
Administrator. As in other responses to the committee, I would evaluate
the efficacy of different intervention tools based on the severity of
violations, the specifics of a particular case, and the efficacy of the
tool in terms of improving compliance with the law.
Question 3. Your name is listed in NELP's report, ``Just Pay:
Improving Wage and Hour Enforcement at the United States Department of
Labor'' as a member of the working group. I understand that this report
recommends that the Wage and Hour Division ``provide guidance to
investigators who are told by an employer that a complaining worker is
an independent contractor'' and ``the guidance should note that a
worker performing labor or services is presumed to be an employee
absent employer proof to the contrary.''
Do you agree with that recommendation?
Answer 3. As an academic expert on workplace regulation and labor
standards, I was asked to be a member of the working group in 2008. I
agreed to do so and participated in a series of conference calls during
2008 and 2009. We were asked to periodically read and comment on drafts
of the report in discussions proceeded which I did. As a working group
member, I provided comments on the report. We were not asked to support
all recommendations in the report, but to provide our input regarding
them. I did not agree with all of the recommendations included in the
report at the time nor do I now.
Question 4. If your nomination is confirmed, you will be in charge
of over 1,800 employees at the Wage and Hour Division. Could you speak
to your experience in management, and how you plan to effectively run
this complex division?
Answer 4. I believe that the experience I have from managing and
supervising research, teaching and academic initiatives in the course
of my work and the mediation and advisory work I have done in applied
settings provides me with a set of skills that would be useful in
leading the Wage and Hour Division effectively. In addition, my
extensive experience in working with the agency, dating back to the
Bush administration, provides me with a background and knowledge of the
agency and an understanding of its operation that would allow me to hit
the ground running if confirmed.
senator murkowski
Question 1. If confirmed as Administrator of the Wage & Hour
Division, U.S. Department of Labor (WHD), what will be your top
priorities?
Answer 1. My priorities would reflect the conditions facing the
Wage and Hour Division going forward. I would be guided in thinking
about those conditions by the principles I described in my Statement
for the Record. Based on those principles, I would in the first few
months of my service if confirmed, undertake a listening tour across
the five regions making up the WHD. I would seek to understand what the
career staff of the agency believes has been working well and what
might be improved. I would also reach out to the WHD's stakeholders--
workers, businesses, worker advocates, business associations, and
others--with a similar question. On the basis of this input and guided
by the five principles, I would set clear priorities on how to best
move forward in achieving the goals of the laws administered by the
Wage and Hour Division.
Question 2. Please describe any and all management and/or
supervisory experience you have, including but not limited to number of
persons you oversaw, size of department you were responsible for,
specific management duties, term of position, etc.
Answer 2. I acknowledge that I have never managed or led an
organization the size of the Wage and Hour Division. But I strongly
believe that my experience over the last 20 years of leading, managing,
and supervising in my academic and applied work and my extensive
knowledge and work with the Wage and Hour Division since 2002 prepares
me well for the challenges I will face in leading the agency.
In my 20 years as a professor, there has not been a time where I
have not been leading and coordinating multiple projects, administering
research grants and budgets, overseeing faculty colleagues, students,
and staff on projects, and evaluating the performance of peers and
subordinates. I have engaged in these activities at multiple research
centers. The number of people I have managed has varied over time. At
various times, I have had 18-20 researchers under my supervision and
management. For example, in 2005, I had five professors, seven
undergraduate researchers, three Ph.D. students, four staff members
operating under my supervision between my research studies for the
Department of Labor, and at Harvard University. I have also managed and
supervised major teaching and administrative activities. A recent
example is the redesign of our MBA curriculum where I led the design
and implementation team over the last year consisting of 8 professors
and instructors, 10 teaching assistants, and 5 staff members, and
coordinated with a second design team of similar size.
My research, teaching, and administrative activities have all
involved hiring personnel, assessing performance, overseeing budgets,
responding to staffing issues, relating to external funders and
research partners and internal administrative units, and setting,
monitoring, and delivering on project milestones and deadlines.
Question 3. Please explain how your answer to question No. 2 above
prepares you to serve as Administrator to manage and carry out the
mission of the WHD.
Answer 3. The Wage and Hour Division is fortunate to have an
experienced and talented staff at the national, regional, and district-
levels. I would view a central part of my job to be providing overall
leadership direction, working with the staff and stakeholders to create
clear objectives and goals and gaining consensus about them, and then
drawing on their expertise in implementation of new and existing
directions and interacting with them on an ongoing basis. My experience
with the agency and working relationship with many career staff members
would be a foundation for quickly building this close working
relationship.
I have a strong set of skills and abilities from what I have done
in my career that would facilitate the above. First, I have a unique
perspective combining business administration and economics with a deep
understanding of workplace policy. This provides me a framework for
thinking about both the challenges facing the agency in improving
compliance with laws and in thinking about leading and managing it. The
fact that I have worked with the Wage and Hour Division since 2002
means that these are not abstract ideas, but already reflect thinking
about the particular issues facing the agency I would lead if
confirmed.
Second, my experience overseeing multiple projects with diverse
groups of people has led me to develop managerial skills in clearly
defining overall objectives, delegating tasks and activities, clearly
articulating goals within those, and reviewing progress. I have
experience in hiring and evaluating staff at various levels, creating
operating plans, administering budgets, and undertaking planning
reviews that would be directly applicable to my responsibilities as
Wage and Hour Administrator if confirmed.
Third, my mediation experience of the last 20 years has kept me in
the middle of real world problems, and experience in dealing with
sensitive, multi-party situations. It has taught me how to bring
consensus among competing interests, in part by helping to articulate a
common vision of objectives and then finding a pathway to reach them.
Similarly, my advisory work with both Democratic and Republican
government agencies in taking on complicated problems has shown me how
to bring to bear my academic training with creatively dealing with
complicated problems facing real world institutions.
Finally, I bring energy, creativity, patience but also passion to
leadership.
Question 4. Have you ever filed or participated in the filing of a
complaint alleging a violation of law enforced by the WHD? If yes,
please explain, including your role and the outcome.
Answer 4. No.
Question 5. What prior experience do you have investigating
complaints or other alleged violations enforced by the WHD for which
you will be responsible for overseeing if confirmed as Administrator?
Answer 5. Between 2002 and 2011, I worked on a series of major
projects with the Wage and Hour Division. Those projects gave me a
detailed understanding of the internal workings of the Wage and Hour
Division at the district office, regional office, and national office
levels. It has provided me the opportunity to talk with many
investigators in the course of that work at a variety of offices. I
have presented that research in a variety of meetings and offices of
the Wage and Hour Division during the course of that time, allowing me
to understand how investigations are undertaken as well as other
administrative activities of the organization.
Question 6. What prior experience do you have enforcing laws
enforced by the WHD for which you will be responsible for overseeing if
confirmed as Administrator?
Answer 6. As noted in my answer to question 5, my work over an 8-
year period with the Wage and Hour Division under two administrations
has provided me with a very detailed understanding of the operation of
the division. It has also allowed me to get to know many of the
talented career staff both in Washington and the field. This knowledge
would allow me to hit the ground running in terms of understanding the
basic operations of the WHD and a familiarity with many of those whom I
would work.
Question 7. You have made reference to several ``tools'' or a
``tool box'' available to you to enforce the laws you would be
responsible for enforcing if you are confirmed as Administrator of the
WHD. Please describe, define, and identify with specificity what you
mean by such ``tools'' and ``tool box.''
Answer 7. The Wage and Hour Division is entrusted with a range of
interventions that can be used to attain compliance with the laws it
administers. The major tools include but are not limited to, providing
information to employers and workers about their rights and
responsibilities; providing educational outreach to the various parties
regarding policies and programs, including using new, web-based tools
of outreach; providing compliance assistance; and undertaking
enforcement arising from both complaint and directed investigation. The
responsibility of the Administrator is to set clear vision and
procedures to enable the agency to choose the interventions most
appropriate given the overall goal of improving compliance with the
laws administered by WHD.
Question 8. Based on your answer to question No. 7, if confirmed as
Administrator, what tools are currently not available that you would
like to make to available to the WHD and why?
Answer 8. I do not have any thoughts about the need for tools not
currently available to the Wage and Hour Division.
Question 9. When and under what circumstances do you believe it is
appropriate for the WHD to use strategic enforcement? Please be
specific.
Answer 9. Strategic enforcement describes a method of thinking
about how to best achieve the objective of assuring compliance with the
laws administered by the Wage and Hour Division given the limited
resources available to it. It provides a framework for evaluating the
appropriate methods of intervention, setting clear goals about what
those interventions are to achieve, and, over time, evaluating the
success in achieving outcomes given different interventions. It then
requires adjusting policies in light of that experience. I would apply
the idea of strategic management, a concept basic to private sector
business, to lead and manage the Wage and Hour Division if confirmed.
Question 10. When and under what circumstances do you believe it is
appropriate for the WHD to use directed investigations? Please be
specific.
Answer 10. Directed investigations are an important complement to
complaint investigations for the purposes of enforcement. They have
been used as a means to assure that the Wage and Hour Division's
resources are used in part where there is a likelihood of non-
compliance, based on objective sources of information. As in all
activities of the agency, their impacts should be carefully evaluated
as to whether they are improving compliance with the law and that they
reflect changing conditions in terms of the relative severity of
compliance problems across industries.
[Whereupon, at 10:30 a.m., the hearing was adjourned.]
[all]