[Senate Hearing 117-194]
[From the U.S. Government Publishing Office]
S. Hrg. 117-194
NOMINATIONS OF DAVID WEIL,
GWYNNE WILCOX, AND
DAVID PROUTY
=======================================================================
HEARING
OF THE
COMMITTEE ON HEALTH, EDUCATION,
LABOR, AND PENSIONS
UNITED STATES SENATE
ONE HUNDRED SEVENTEENTH CONGRESS
FIRST SESSION
ON
EXAMINING THE NOMINATIONS OF DAVID WEIL, OF MASSACHUSETTS, TO BE
ADMINISTRATOR OF THE WAGE AND HOUR DIVISION, DEPARTMENT OF LABOR, WHO
WAS INTRODUCED BY SENATOR WARREN, AND GWYNNE A. WILCOX, OF NEW YORK,
WHO WAS INTRODUCED BY SENATOR MURRAY, AND DAVID M. PROUTY, OF MARYLAND,
WHO WAS INTRODUCED BY SENATOR VAN HOLLEN, BOTH TO BE A MEMBER OF THE
NATIONAL LABOR RELATIONS BOARD
__________
JULY 15, 2021
__________
Printed for the use of the Committee on Health, Education, Labor, and
Pensions
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
46-774 PDF WASHINGTON : 2023
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COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS
PATTY MURRAY, Washington, Chair
BERNIE SANDERS (I), Vermont RICHARD BURR, North Carolina,
ROBERT P. CASEY, JR., Pennsylvania Ranking Member
TAMMY BALDWIN, Wisconsin RAND PAUL, M.D., Kentucky
CHRISTOPHER S. MURPHY, Connecticut SUSAN M. COLLINS, Maine
TIM KAINE, Virginia BILL CASSIDY, M.D., Louisiana
MAGGIE HASSAN, New Hampshire LISA MURKOWSKI, Alaska
TINA SMITH, Minnesota MIKE BRAUN, Indiana
JACKY ROSEN, Nevada ROGER MARSHALL, M.D., Kansas
BEN RAY LUJAN, New Mexico TIM SCOTT, South Carolina
JOHN HICKENLOOPER, Colorado MITT ROMNEY, Utah
TOMMY TUBERVILLE, Alabama
JERRY MORAN, Kansas
Evan T. Schatz, Staff Director
David P. Cleary, Republican Staff Director
John Righter, Deputy Staff Director
C O N T E N T S
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STATEMENTS
THURSDAY, JULY 15, 2021
Page
Committee Members
Murray, Hon. Patty, Chair, Committee on Health, Education, Labor,
and Pensions, Opening statement................................ 1
Burr, Hon. Richard, Ranking Member, a U.S. Senator from the State
of North Carolina, Opening statement........................... 3
Warren, Hon. Elizabeth, a U.S. Senator from the State of
Massachusetts, Statement....................................... 6
Van Hollen, Hon. Chris, a U.S. Senator from the State of
Maryland, Statement............................................ 7
Witnesses
Weil, David, Ph.D, Belmont, MA................................... 8
Prepared statement........................................... 10
Wilcox, Gwynne, New York, NY..................................... 11
Prepared statement........................................... 13
Prouty, David, Upper Nyack, NY................................... 15
Prepared statement........................................... 17
ADDITIONAL MATERIAL
Statements, articles, publications, letters, etc.
Murray, Hon. Patty:
Letters of Support for the Nomination of David Weil.......... 31
Burr, Hon. Richard:
Letters of Opposition to the Nominations of David Weil,
Gwynne Wilcox and David Prouty............................. 33
Biden's PRO Act Enforcer, Wall Street Journal................ 37
NOMINATIONS OF DAVID WEIL,
GWYNNE WILCOX, AND
DAVID PROUTY
----------
Thursday, July 15, 2021
U.S. Senate,
Committee on Health, Education, Labor, and Pensions,
Washington, DC.
The Committee met, pursuant to notice, at 10 a.m., in room
430, Dirksen Senate Office Building, Hon. Patty Murray, Chair
of the Committee, presiding.
Present: Senators Murray [presiding], Casey, Hassan, Lujan,
Burr, Murkowski, Braun, Marshall, and Tuberville.
OPENING STATEMENT OF SENATOR MURRAY
The Chair. Good morning. Senate Health, Education, Labor,
and Pensions Committee will please come to order. Today we are
holding a hearing on the nominations of David Weil to serve as
Administrator of the Wage Hour Division at the Department of
Labor, and Gwynne Wilcox and David Prouty to serve as members
of the National Labor Relations Board. Ranking Member Burr and
I will each have an opening statement and then we will
introduce our witnesses. They will give their testimony and
then Senators will each have 5 minutes for a round of
questions.
While we were unable to have this hearing fully open to the
public or media for in-person attendance, live video is
available on our Committee website at help.senate.gov. And if
anyone is in need of accommodations, including closed
captioning, you can reach out to the Committee or the Office of
Congressional Accessibility Services. We received Dr. Weil's
formal nomination on June 8th, his office of Government Ethics
paperwork including his public financial disclosures and ethics
agreement on June 14th, and his Committee paperwork on June
21st.
We received Ms. Wilcox formal nomination on May 27th, her
Office of Government Ethics paperwork on June 9th, and her
Committee paperwork on June 10th. And we received Mr. Prouty's
formal nomination on June 23rd, his Office of Government Ethics
paperwork on June 25th, and his Committee paperwork on June
25th. I would like to thank all of our witnesses for joining us
today and to welcome their families, Dr. Weil's wife Miriam,
Ms. Wilcox's brother David and sister Susan, and Mr. Prouty's
wife Olive and brother Douglas, who are with us today. Thank
you for coming. I am pleased to have before us three nominees
with long records of fighting for workers. After 4 years of
anti-worker tax from the last Administration, you all represent
a much welcomed and much needed change of direction.
During his past tenure as Administrator of the Wage and
Hour Division, Dr. Weil proved himself a capable leader,
committed to ensuring workers across the country were paid the
wages they had earned. Under his leadership, the Division
significantly increased its efforts to enforce Wage and Hour
laws. The Division's work uncovered labor violations, including
one investigation of garment factories that supplied major
clothes retailers, which secured $1.3 million in back pay for
cheated workers.
While leading the agency, he also worked to expand access
to overtime pay by issuing a rule to dramatically increase
overtime eligibility to 12 million workers, to close loopholes
by issuing guidance aimed at stopping employers from
misclassifying workers in order to pay them less, and crack
down on bad actors, including Federal contractors who were not
paying prevailing wages under our labor laws.
While it has been frustrating to see the previous
administration undermine those efforts and reverse this
progress over the last 4 years, confirming a proven champion
for workers to return to the Wage and Hour Division is an
important step to putting us back on the right track.
Unfortunately, the National Labor Relations Board saw a similar
alarming trend under President Trump as Democratic nominees
were blocked and anti-worker nominees were jammed through. We
saw the NLRB, which was founded to protect workers and their
rights, take an alarming turn. Over the past few years under
Republican appointees, the NLRB has reversed decades of worker
protections.
Fortunately, Ms. Wilcox and Mr. Prouty are exactly the kind
of people we need to begin healing this damage and bringing the
NLRB back to its roots. They would both bring to the Board a
career of experience fighting to uphold the promise of the
National Labor Relations Act. Ms. Wilcox has represented
workers fighting against an employer who tried to require them
to waive their rights to act collectively, workers who
organized a walkout calling for a public report on sexual
harassment in the workplace and an end to forced arbitration,
and workers who were retaliated against by their employer for
advocating for higher wages.
Mr. Prouty's record fighting for workers is equally
compelling. He has worked for several unions, including his
General Counsel, to Unite Here, which represents textile
workers, hotel workers, restaurant workers, and more, the Major
League Baseball Players Association, and currently the Service
Employees International Union Local 32 BJ, a union which
represents approximately 175,000 property service workers.
Confirming these highly qualified nominees is an important step
to reversing the damage of the last 4 years and rebuilding our
country stronger and fairer and making our economy truly work
for workers and their families. But it is ultimately only a
start.
There is more we need to do in Congress to address the
inequities in our economy that make things so much harder for
women, workers of color, workers with disabilities, and others
to make sure every worker has paid family, sick, and medical
leave, quality, affordable childcare, a livable minimum wage of
$15.00 an hour without exceptions, and a secure retirement to
ensure that no worker is cheated out of overtime or tips or
equal pay, and to defend and strengthen the right to form and
join a union, a right which allows workers to secure better pay
and benefits and safer working conditions.
I look forward to not only confirming these nominees, but
working with them, the rest of the Biden administration, and my
colleagues here in Congress to tackle these challenges. Before
I turn it over to Ranking Member Burr for his opening remarks,
I seek unanimous consent to put in the record letters from 28
organizations in support of Ms. Wilcox's nomination, and
letters from 18 organizations in support of Mr. Prouty's
nomination. So ordered.
[The information referred to was not submitted for the
Record.]
The Chair. Senator Burr.
OPENING STATEMENT OF SENATOR BURR
Senator Burr. Thank you, Madam Chair, for holding this
hearing. And this is proof that there is bipartisanship in
Washington, because Senator Murray and I both agree that
workers should not be cheated. Where we disagree is on how we
look at the workforce and employers, and whether nominees
should be held accountable for what they say and what they have
done.
See, I--before Congress, I worked for a living. I was a
salesman early on and I managed a sales group, which is a good
business. We had a lot of employees, we served a lot of
customers. There were a lot of people who were employed because
of what we did. We made their lives better by selling them
products that their customers could use, and everybody made
money. When things went well, our employees got promotions and
they got raises. When things weren't that good, we tightened
our belt, and everybody made adjustments.
We responded to customers, and we worked hard. Not once did
any of us ask the question, how would someone in Washington run
this business? For nearly 800,000 franchise establishments in
the United States, the 30 million small businesses, and even
the over 1,600--16,000 big businesses in the country, I think
they operate the same way. They run their businesses. Most
employers, most play by the rules. They try to treat their
employees well and pay them fairly. They want to provide a safe
working environment and keep employees happy so they will come
back every day. Employers accept that there needs to be rules
to protect workers and to protect customers.
But those rules need to be based on reality and not on what
academics, who have never held a real job, think.
Unfortunately, our nominees here today failed to pass that
test. Instead of nominating individuals who could gain broad
bipartisan support, nominees who would seek balance and
fairness in their roles, the president has nominated extreme
ideologues who will be reliable partisan advocates of an
extreme agenda. It is not an agenda that will grow our economy
or, quite frankly, help create jobs. It is an anti-employer
agenda aimed at bringing more businesses under the thumb of
bureaucrats in Washington. David Weil is being recycled from
the Obama administration back in his job in Wage and Hour
Division.
Chair and I have a different view of your time there. You
received no Republican support the last time you were
nominated, and I think it was for good reason. You engaged in
such partisan overreach that the courts stepped in to stop your
badly constructed over time rule. When the vision you adopted
for your writings, such as the hostility of the gig economy,
wasn't rejected by the courts, even voters in liberal states
such as California overturned them with voter referendums.
There is no greater opportunity--opponent of the gig economy
than Mr. Weil. The gig economy was a lifeline and source of
income for so many communities during the recent pandemic and
helped so many even outside of the pandemic for individuals to
choose the job they want, the hours they want, and the life
they want. Democrats used to be supportive of this concept of
letting people work where and when they want.
Nancy Pelosi even used it as an excuse for the passing of
the Affordable Care Act. But now, David Weil wants to shut down
innovative job opportunities. He wants to march workers back
into the factory doors and punch a time clock. If you want a
side hustle, if you want to be free to choose your hours, if
you don't want the hassle of a 40 hour work week, and want to
be an independent contractor, this is not the person at Wage
and Hour. And God forbid you want to own a franchise. Franchise
businesses have been a springboard to business ownership for
countless women, minorities, and recent immigrants.
At least 30 percent of minority--at least 30 percent of
franchises are minority owned. At least 35 percent are women
owned. Franchises have been the springboard for millions. But
Mr. Weil wants to shut them down. Franchises exist in the
restaurant industry, the childcare sector, the hospital
industry and more. But Mr. Weil doesn't like it. You wrote a
paper on it. So let me just say he is coming back. It is ironic
that the President's recent executive order aimed at promoting
competitive--competition when Mr. Weil's world view will
instead lead to an extraordinary consolidation and less
competition.
Millions will suffer as a result of his policies. But that
is Okay because he wrote a paper about it, and he knows better
than decades of real world experience with franchises around
the country. David Weil believes he knows better than the many
minority and women franchise owners in this country who have
made their own living, who have climbed their own way up, who
have created jobs for others along the way. He believes his
academic credentials are worth more than real world experience
and believes his policy papers are worth more than the hard
earned paychecks.
Turning to the National Labor Relations nominees, I look at
the NLRB website, it says the NLRB is an independent Federal
agency that protects the rights of private sector employees to
join together with or without a union to improve their wages or
working conditions. The NLRB is charged with conducting
elections to determine if workers want to be represented by a
union. It is charged with handling complaints against both
unions and companies. It has a balanced job to do.
The words independent and balanced stick out in my mind and
our nominees today clearly failed to meet that test. Gwynne
Wilcox involved herself in a project that referred to the
American free enterprise system and by extension the wealth and
opportunity it creates, as I quote, ``the primary threat to the
viability of American democracy.'' Wow. This report proudly
advocated banning employers from engaging their workers in a
dialog over a work schedule, job structure, housing, and child
care. All these conversations would have to have happened
through a convoluted system of workforce monitors and work
councils. So the small business owners need a huge bureaucracy.
The worker can no longer talk to their boss like an equal with
talent, unique skills, and individual merit, because there is
nothing Americans like more than bureaucracy, I guess.
The report also demands banning right to work laws and
would require special favoritism for labor organizations as an
interest group. Such brazen advocacy for Government subsidized
favoritism and grift disqualifies Ms. Wilcox as an impartial
enforcer of our labor laws and raises serious concerns about
her impartiality. Now, North Carolina knows Mr. Prouty. As we
say in the south, bless your heart. His experience in North
Carolina has only led to job loss and killing industries. I
fear that he will do--I fear he will continue to do that if
given a national platform.
Mr. Prouty doesn't believe that you have a right to work
unless, of course, you are a union member. He spent his career
advancing the priorities of labor unions, those same unions
pushing the ban--to ban secret ballots in union elections. This
would allow union organizers to stand over your shoulder and
watch your vote. I am sure there wouldn't be any intimidation
on how to vote or retribution if you didn't vote the right way.
Madam Chair, America faces an enormous economic challenge from
China. Part of that is China's sheer size, population, and
natural resources, but I think it is mostly their unfair trade
practices and unending intellectual property theft. Yet no
small part of China's success is the fact that people like Mr.
Weil, Ms. Wilcox, and Mr. Prouty have declared America business
as an enemy.
We can't combat China's communist country by growing our
own Government control of the private sector. We can't tell
American workers that they are free when union organizers are
going to watch how they vote. Was anyone surprised when
President Xi was elected in 2,952 to 1? Is the future of
America's labor, what is--is that the future of America's labor
elections? Rather than make the United States an economic
powerhouse of opportunity for employers and job seekers, these
nominees want to stifle growth. When workers seek innovation
and freedom to control their own work life balance, these
nominees say no, no to the gig economy, no to new workplace
solutions.
Instead of bringing employers and workers together to
resolve problems, these nominees want to create conflict,
expand bureaucracy, and empower unions above all else. Madam
Chair, these nominees are very troublesome. They don't reflect
the mainstream. They are partisan idealists set out to remake
the American economy, to expand the control of Government over
the lives of workers, employers, job creators, and innovators.
I hope the American people are watching this hearing. I
hope they see that this is a danger to their future, and they
will speak out. Before I yield to you, though, I ask unanimous
consent to enter two letters into the record signed by a total
of 15 business groups, including small businesses opposing the
nomination of Dr. Weil, and another letter from the United
States Chamber expressing concerns with Dr. Weil's nomination.
The Chair. Without objection.
[The information referred to can be found on page 33 in
Additional Materials]
Senator Burr. I yield.
The Chair. We will now introduce today's witnesses. And I
want to first turn it over to a former Member of our Committee,
Senator Warren, to introduce Dr. Weil.
STATEMENT OF SENATOR WARREN
Senator Warren. Thank you very much, Chair Murray and
Ranking Member Burr. I am here to introduce Dr. David Weil who
has been nominated to be our next Administrator at the
Department of Labor's Wage and Hour Division. I am proud to say
that Dr. Weil has strong Massachusetts ties. He has taught in
Massachusetts for more than two decades at Boston University
School of Management and at Brandeis University.
He received his master's and his Ph.D. from Harvard
University. Now, I introduced Dr. Weil at his nomination
hearing in 2013 to serve in this position. At the time, I told
this Committee that there are few, if any, more knowledgeable
or qualified people that the president could have nominated for
this position. And that remains true. Today, Dr. Weil served as
the Wage and Hour Division Administrator from 2014 to 2017. He
came to that role with an extensive background in labor and
employment research, writing, and policy.
He will return with a deep understanding of the Division's
tools, with a well-known strategy to protect workers, and an
unwavering commitment to enforcing our Wage and Hour laws.
While serving at DOL, Dr. Weil built the Division's capacity to
enforce some of workers' most fundamental protections,
including minimum wage and overtime laws. He pursued
investigations that sought justice for some of our Nation's
most vulnerable workers, and he demanded accountability from
industries with widespread abuses of Wage and Hour laws. He
shifted DOL enforcement to take a proactive approach seeking to
prevent Wage and Hour violations before workers experienced
harm.
There is a wealth of examples of the impact of his work at
DOL, where he recovered millions of dollars in back wages for
workers and sought to collaborate with employers to increase
compliance with Wage and Hour laws. I just want to highlight
one example. In 2016, Dr. Weil helped secured more than $1
million in back wages for the food service workers in this
building, people who had been cheated out of money that they
were owed.
Dr. Weil literally wrote the book on fissured workplaces.
And he is singularly prepared to take on the complex ways that
companies evade their legal responsibilities to workers,
whether they do it through outsourcing, subcontracting, or
misqualify--misclassifying workers. America's workers deserve a
Wage and Hour Administrator as committed, as diligent, and as
innovative as Dr. Weil, and I look forward to his speedy
confirmation. Thank you, Madam Chair.
The Chair. Thank you, Senator Warren. Dr. Weil, thank you
for joining us today. Our next witness is Ms. Wilcox. She is a
partner at Levy Ratner, PC, a law firm devoted to representing
unions in contract negotiations, arbitration, and before the
NLRB and other administrative agencies. When her workers
organized a walkout of 20,000 people to protest sexual
harassment in their workplace and to call on their employer to
end mandatory arbitration and provide a public report on the
issue, Ms. Wilcox fought for them.
When workers seeking a higher wage participated in walkouts
and strikes and faced retaliation like reduced hours and
threats and firing, Ms. Wilcox fought for them. When an
employer required workers to sign an arbitration agreement
waiving their right to any class actions, Ms. Wilcox fought for
them, and the NLRB ultimately ruled that provision unlawful.
And outside of her work at Levy Ratner, Ms. Wilcox has long
been fighting for workers. Before joining the firm, she worked
as a field attorney for the NLRB at region 2 in New York City.
Ms. Wilcox also currently serves as Associate General
Counsel of 1199 SEIU, the largest health care union in the
country and is the labor representative to the New York City
Office of Collective Bargaining. She has written papers on a
variety of labor law topics, including the COVID-19 pandemic's
implication for workers' rights related to privacy, concerted
activities, and bargaining, and has served as an editor of
Developing Labor Law, a major labor law treatise.
She has also taught labor law classes at CUNY Murphy
Institute in the Cornell ILR School. In other words, her career
has been defined by a clear commitment to fighting for workers
and their rights. Thank you for joining us today, Ms. Wilcox. I
am glad to have you with us. With that, I am going to turn it
over to Senator Van Hollen who is here today to introduce Mr.
Prouty.
STATEMENT OF SENATOR VAN HOLLEN
Senator Van Hollen. Thank you. Thank you, Chair Murray,
Ranking Member Burr, Members of the Committee for the
opportunity to introduce to you one of President Biden's
nominees to serve on the National Labor Relations Board, David
Prouty. While I am grateful that President Biden has nominated
a fellow Marylander for this post, what makes Mr. Prouty an
outstanding choice for this position is his long record of
using his sterling legal skills to stand up for the rights of
working people and their right to freely decide to join a union
to raise the standard of living for all workers.
Mr. Prouty began his career as an organizer for the
American Federation of State, County and Municipal Employees,
where he gained firsthand knowledge of the laws that govern
collective bargaining and workers' rights. A graduate of
Harvard Law School, Mr. Prouty, later served for 15 years as
the Southern Regional Council for Unite and its predecessor
union, the Amalgamated Clothing and Textile Workers Union. He
then became the General Counsel to the labor union Unite Here,
which represents workers from hotels and restaurants, of
course, a sector that has been especially hard hit during this
pandemic.
Unite Here also represents industrial and textile
employees. From 2013 to 2018, Mr. Prouty served as the Chief
Labor Counsel to Major League Baseball Players Association--and
that is General Counsel from 2013 to 2017. He currently serves
as General Counsel to SEIU 32 BJ, a strong branch of the
broader SEIU, which has over 175,000 members and has been a
consistent leader at the national level for workers' rights,
including during the Government shutdown. This stretched from
late 2018 into 2019, when many of their members were locked out
of their jobs without pay as employees of Federal contractors.
As General Counsel, Mr. Prouty played a key role in the
fight to protect their livelihoods during that period.
President Biden has made it clear that he will be a champion
for American workers and their right to organize and to pursue
the American dream. His nomination of David Prouty is more
evidence of that commitment and the president's determination
to restore balance to the NLRB after 4 years of relentless
attacks on workers' rights. Members of the Committee, I would
also like to join the Chair in welcoming David's wife, Olive,
and his brother Doug to today's hearing.
I have worked with Doug on education issues in Maryland for
decades. And I know that David and Doug's late father, Keith
Prouty, is smiling down on this hearing and would be very
proud. Keith Prouty was a legendary labor leader in Maryland
and chairman of the Maryland NAACP. David Prouty is carrying on
that important legacy and work. Madam Chair, Ranking Member,
Members of the Committee, I urge you to support his nomination.
The Chair. Thank you very much, Senator Van Hollen, for
joining us today. Mr. Prouty, welcome to you as well. With
that, we will begin our witness testimony. And Mr. Weil, we
will begin with you.
STATEMENT OF DAVID WEIL TO BE ADMINISTRATOR OF THE WAGE AND
HOUR DIVISION, DEPARTMENT OF LABOR
Mr. Weil. Thank you, Chair Murray, Ranking Member Burr, and
distinguished Members of the Committee for the opportunity to
appear before you today as you consider my nomination to serve
as the United States Wage and Hour Administrator. I am deeply
grateful to President Biden for nominating me to the position
of Wage and Hour Administrator, and to Secretary of Labor Marty
Walsh for the confidence he has shown me in supporting my
nomination.
I want to thank Senator Warren for her kind and generous
introduction this morning, and I also wish to acknowledge and
thank my wife Miriam Weil for joining me today and along with
my daughters, Rachel and Lonnie, for supporting and inspiring
me. I am humbled by the opportunity, if confirmed, to once
again serve my country by leading the Department of Labor's
Wage and Hour Division. Serving as Administrator during the
Obama administration and leading its dedicated and capable
staff of men and women was one of the greatest professional
honors and experiences of my life.
My appearance before you today arises in large part by the
opportunities afforded my parents and grandparents by this
country. My maternal grandparents, Rose and Abe Shapiro, came
to the United States at the turn of the last century. Like
countless other immigrants, they toiled for years in the
garment industry in order to save enough to start a small
business to support their family and educate my mother, Nancy,
and her brothers and sister. My father, Jerry Weil, and his
family fled Nazi Germany and arrived in the United States in
1939 with little more than the desire to build a new life in a
free and democratic nation.
My father, now 90, often recounts the many jobs he held as
a young man, whether stocking shelves in a grocery store,
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, attend medical school, eventually providing a solid
economic foundation for my sisters and me. Growing up in
Greeley, Colorado, a small farming and ranching town, I had
many classmates whose families were seeking the same pathway.
They were children of farmers, farm workers, workers in the
local meatpacking and livestock industry, or of small business
owners.
Many of those families made their way into the middle class
like mine, but other families were not so fortunate. The Greely
of today is a much larger and economically vibrant place, but
many of its families still struggle to get by. Throughout my
academic career as a business school professor and now as Dean
of Brandeis University's Heller School for Social Policy and
Management, I have focused on understanding the forces that
shape economic opportunities for workers. As an economist, I
understand that a market acts as a positive force in allocating
the scarce resources of society toward economically productive
outcomes. But I also know how our workplace laws seek to
balance those market forces to make sure that the economic
value created by businesses are shared with the workforce who
helps create them.
For decades following World War II, families like mine
benefited from that balance where economic growth and real
earnings moved up together. But since the 1980's, the growth in
economic value created by businesses and their workforces has
diverged from the earnings of working people, leading to wage
stagnation and growing inequality. Restoring that balance
requires, in part, making good on the Wage and Hour Division's
long standing mission, promoting and achieving compliance with
labor standards to protect and enhance the welfare of the
Nation's workforce.
When I led the agency, we pursued that mission by targeting
our resources on high violation industries and employers whose
failure to comply hurt workers, as well as undermine the many
responsible employers who followed the law. We did so by being
data driven and committed to evaluating the impact of our
enforcement efforts, as well as developing multiple ways to
educate and engage with businesses, workers, and other
stakeholders about their rights and responsibilities.
The pandemic revealed starkly what has been true long
before it hit. Too many hard working people who provide
essential services failed to receive the pay and treatment that
our law requires that not only harms them but undermines the
social fabric we depend on as communities.
If confirmed, I would redouble my commitment to the
responsible, effective, and transparent administration of the
agency, and in that way contribute to President Biden's effort
to build back better.
Chair Murray, Ranking Member Burr, and Members of the
Committee, I once again thank you for the opportunity to
discuss my views and look forward to addressing your questions.
[The prepared statement of Mr. Weil follows:]
prepared statement of david weil
Thank you Chair Murray, Ranking Member Burr, and distinguished
Members of the Committee for the opportunity to appear before you today
as you consider my nomination to serve as the United States Wage and
Hour Administrator.
I am deeply grateful to President Joe Biden for nominating me to
the position of Wage and Hour Administrator and to Secretary Marty
Walsh for the confidence he has shown me in supporting my nomination. I
want to thank Senator Warren of Massachusetts for such a kind
introduction this morning. I also wish to acknowledge and thank my
wife, Miriam Weil for joining me today and, along with my daughters
Rachel and Lani, for supporting and inspiring me.
I am humbled by the opportunity, if confirmed, to once again serve
my country by leading the Department of Labor's Wage and Hour Division.
Serving as Administrator during the Obama administration and leading
its dedicated and capable staff of men and women was one of the
greatest professional honors and experiences of my life.
As you well know, the mission of the Wage and Hour Division is to
assure that working people receive a fair day's treatment for a fair
day's work and that the businesses that employ them comply with the law
and compete on a level playing field. Through enforcement, education,
and stakeholder engagement, the agency assures that basic concepts of
fairness that underpin our fundamental workplace laws like the Fair
Labor Standards Act are realized in the day-to-day experience of
working people.
My appearance before you today arises in large part by the
opportunities afforded my parents and grandparents by this country. My
maternal grandparents Rose and Abe Shapiro came to the United States at
the turn of the last century. Like thousands of other immigrants, they
worked for years in the garment industry in order to save enough to
start a small business to support their family and educate my mother
Nancy and her brothers and sister.
My father Jerry Weil and his family fled Nazi Germany and arrived
in the United States in 1939 with little more than their desire to
build a new life in a free and democratic nation. My father, now 90,
often recounts the many jobs he held as a young man. Whether stocking
shelves in a grocery store, 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 attend medical school, eventually
providing a solid economic foundation for my sisters and me.
Growing up in Greeley, Colorado, a small farming and ranching town,
I had many classmates whose families were seeking the same pathway--
they were the sons and daughters of farmers or farm workers, of workers
in the local meatpacking and livestock industry, or of small business
owners. Many of those families made their way into the middle class.
But other families were not so fortunate. The Greeley of today is a
much larger and economically vibrant place, but many of its families
still struggle to get by.
Throughout my academic life, as a business school professor and now
as Dean of Brandeis University's Heller School for Social Policy and
Management, I have focused on understanding the forces that shape
economic opportunities for workers. As an economist, I understand that
a market acts as a positive force in allocating the scarce resources of
society toward economically productive outcomes. But I also know how
our workplace laws seek to balance those market forces to make sure
that the economic value created by businesses are shared with the
workforce who helps create them.
For decades following World War II, families like mine benefited
from that balance. But since the 1980's, the economic value created by
businesses and their workforce and the earnings of working people have
diverged, leading to wide scale wage stagnation and growing inequality.
This work informed my approach as Wage and Hour Administrator and
would continue to do so if confirmed by the Senate. That approach was
grounded in the mission of the agency: ``Promote and achieve compliance
with labor standards to protect and enhance the welfare of the Nation's
workforce.'' When I led Wage and Hour previously, we prioritized our
resources toward industries, workers, and employers most hurt by
failure to comply or most in need of assistance. We were data-driven
and committed to evaluating the impact of all our efforts as well as
developing multiple ways to engage with our many stakeholders.
The pandemic revealed starkly what has been true long before it
hit: too many hard-working people who provide essential services fail
to receive the pay and treatment that the law requires. That not only
harms them, but undermines the social fabric we depend on as
communities. If confirmed and given the opportunity to lead the Wage
and Hour Division, I would redouble my commitment to the responsible,
effective, and transparent administration of the agency and in that way
contribute to President Biden's efforts to build back better.
Chair Murray, Ranking Member Burr, 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 Chair. Thank you very much, Mr. Weil.
We will turn to Ms. Wilcox.
STATEMENT OF GWYNNE WILCOX TO BE A MEMBER OF THE NATIONAL LABOR
RELATIONS BOARD
Ms. Wilcox. Thank you. Good morning. Chair Murray, Ranking
Member Burr, and Members of the Committee, I thank you for the
opportunity to appear before you today. I am both honored and
humbled to have been nominated for consideration as a member of
the National Labor Relations Board. When I started working at
the NLRB over 38 years ago, I could not have imagined I would
be considered for this highest honor.
I understand that if I am confirmed, I will be making
history as the first Black woman to serve as a Board member. My
experiences have laid a foundation for my nomination. I give
thanks to my siblings, David Wilcox, Dr. Susan Wilcox, and my
friend Michelle Weisminson as my rocks of support for joining
me here today. I am being considered for this critically
important position because of our parents, Dr. Katherine Knight
Wilcox, an educator, and Preston Wilcox, an educator and social
worker, who are here with my siblings and I in spirit and who
prepared us to lead our lives with meaning and purpose, one of
caring and working to improve the lives of others.
As first in their families to attend college and attain
graduate degrees, they stood on the shoulders of their parents
and other ancestors who did not have access to education,
essential resources, and any number of other opportunities,
including our paternal grandfather, who only had an elementary
school education but supported his family at the Youngstown
Steel Mills. Upon graduating from a public high school in New
York City, my path led me to Syracuse University School of
Social Work. My internships opened my eyes to consider law
school in order to have a broader impact upon the lives of
many.
While attending Rutgers Law School in Newark, New Jersey, I
had the goal of representing people living in poverty. I
enjoyed working at legal services offices during and after law
school, but I realized no matter what I accomplish for
individual clients, I was not actually helping to get them out
of poverty. That experience fortunately led me to a position at
region 2 of the NLRB in New York City. The employees, subject
to the National Labor Relations Act, had the prospect for
economic security due to collective bargaining.
My cases over my 5 years at the region impacted the working
and personal lives of employees and employers. Post NLRB, I
joined the firm now known as Levy Ratner, PC in New York City,
where I am currently a Senior Partner and have been a Partner
for 25 years. I have had an even greater opportunity to engage
with union leaders and members in different industries and
continue to handle and supervise NLRB cases over the past 32
years. The collective bargaining process came to life for me as
I recognize that effective labor management relations is truly
about relationships.
Since 2000, I have also developed a collegial relations
with unions' management and NLRB staff and officials on the
committee of the American Bar Association's Labor and
Employment Section focused on the NLRA. Also since 2012, I have
been an Advisory Board Member of the Scheinman Institute for
Conflict Resolution of Cornell University's ILR School. And for
close to 10 years, my public service as a representative of the
New York City Office of Collective Bargaining, the Agency for
City Employees and Unions, to address their workplace disputes,
has also prepared me to join the NLRB because I have enforced a
local law similar to the National Labor Relations Act, where
labor and city representatives bring different experiences and
perspectives with the goal to being impartial.
Before I close, I want to recognize that in the past 18
months we have lived under a pandemic that has taught us many
things. Enough cannot be said about the essential workers who
worked tirelessly with personal sacrifices and employers who
provided support to their essential workers under difficult
circumstances. Having the honor and privilege to represent
essential workers in hospitals, nursing homes, and home care
has given me yet more respect for their commitment to go to
work every day, whether as a union member or in management.
Surrounded by mounting numbers of seriously ill and dying
people, they were also faced with profound concerns about
spreading the virus to their own families. When management and
the union worked together to resolve workplace and patient care
issues, they were literally saving lives of many people. As we
move forward with the worst of the pandemic behind us, these
lessons are ones that I will remember.
In closing, it would be an honor to return to the National
Labor Relations Board, which has been so important to my
evolution as a lawyer and to the lives of working people in
this country. Thank you for the opportunity to appear before
you today, and I look forward to your questions.
[The prepared statement of Ms. Wilcox follows:]
prepared statement of gwynne wilcox
Chair Murray, Ranking Member Burr, and Members of the Committee, I
thank you for the opportunity to appear before you today. I am honored
and humbled to have been nominated by President Biden for consideration
as a Member of the National Labor Relations Board as a result of my
wealth of experience both inside and outside the NLRB. When I started
working at the National Labor Relations Board as a Field Attorney over
38 years ago, I could not have imagined I would be considered for this
highest honor, to serve on the National Labor Relations Board. I have
also been informed that if I am confirmed, I will be making history as
the first Black woman to serve as a Board Member. I do not take this
history-making lightly nor the significance of serving on the National
Labor Relations Board.
I believe that my personal and professional life experiences, which
I will outline in a moment, have laid a strong foundation for my
nomination.
I would like to begin by recognizing my family whose example,
encouragement, strength and unwavering support have led me here today.
My brother, David Wilcox, and my sister, Dr. Susan Wilcox, who have
joined me here today, are my rocks of support and their wisdom has been
a steady guide to me over years. I am here today--being considered for
this critically important position--because of our parents.
Dr. Katherine Knight Wilcox and Preston Wilcox, who are here with
my siblings and me in spirit, are surely so proud of us and pleased at
their own success in preparing us to lead our lives with compassion,
meaning and purpose. They instilled in us a commitment to improve the
lives of others pressed down by racial, economic and gender inequity.
Our parents stood on the shoulders of their parents and other ancestors
who did not have access to education, essential resources and any
number of other opportunities, and therefore encouraged and enabled my
siblings and me in word and deed.
Both of our parents were the first in their families to attend
college and obtain graduate degrees. They met at City College of the
City University of New York and married some time thereafter. Our
mother was born in Richmond, Virginia, and lived in New York City from
the age of 3 years. She was a stay-at-home mother for many years, then
a public school teacher before becoming a college professor at Barnard
College where she educated generations of student teachers and mentored
many others in her position as a Dean of Students. After retiring from
Barnard College, she returned to her alma mater, City College, to serve
as a college administrator until retiring for good a few years later.
Despite her years teaching at Barnard, our mother earned her Doctorate
in Education toward the end of her career. Her personal story, her
resilience and dedication, her advocacy for her children, family,
friends and community, provided me and so many others with a proximate
example of a strong Black woman possessed with immeasurable grace,
wisdom and poise.
Our father was born in Youngstown, Ohio and eventually made his way
to New York City after his military service. He earned a Masters in
Social Work, and went on to teach new generations at his alma mater,
Columbia University, at Lincoln University and other schools, while
also performing social work in the field. His parents were proud of
their eldest son's educational achievements, his father, my
grandfather, having only attained an elementary school education. But
in a family history that brings me to where I am sitting today, our
grandfather was able to support his family as a Union member working in
the Youngstown steel mills. It is likely that our father drew from this
example for he was a life-long community advocate working on behalf of
parents and their children living in underserved areas while
encouraging their school systems to make Brown v. Board of Education a
tangible reality. A love of education and history permeated my father's
life and he was committed to sharing the heritage and accomplishments
of Black people in Harlem, New York, throughout the country and beyond.
This is the stock from which I come.
Upon graduating from a public high school in New York City, I chose
to attend Syracuse University, recognized for its social work school,
because I wanted to follow in my father's footsteps. My internship
experiences, however, made me more aware of the critical needs of youth
and elders, and those in between, and of the great need that they have
for access to professional advocates. When I thought being a social
worker was the right path for me, the internships opened my eyes to
consider law school in order to have a broader impact upon the lives of
many.
I attended Rutgers Law School in Newark, New Jersey with the goal
that I would represent people living in poverty. From part-time to
full-time work at Legal Services offices, including Hudson County Legal
Services Office and Middlesex County Legal Services Office, I realized
I enjoyed my work and also that, no matter what I accomplished for
individual clients, I was not actually helping to get people out of
poverty.
Having learned about the NLRB through a labor law course at
Rutgers, I decided to apply for a position at Region 2 of the NLRB in
Manhattan, New York, with the belief it would be an opportunity for me
to learn about the National Labor Relations Act. In contrast to clients
at the legal service offices where I had worked, employees subject to
the National Labor Relations Act had the prospect for economic security
as a result of it advancing collective bargaining between unions and
employers and, at the same time, providing jobs with higher wages and
increased benefits. In my new position, I handled cases that impacted
the working and personal lives of employees and employers. I analyzed
the National Labor Relations Act and applied it to the facts and
circumstances of pending cases for over 5 years. I worked with
dedicated colleagues and under the wonderful guidance and leadership of
the supervisors and administrators. My years at the NLRB were memorable
due to the important and impactful work of the agency and the dedicated
Regional staff and supervisors with whom I worked assisting the
resolution of disputes among employers, unions and workers.
After leaving the NLRB, I went to work at a union and employment
law firm, in New York City, now known as Levy Ratner, PC. I am
currently a senior partner and have been a partner for 25 years. At
Levy Ratner, I had an even greater opportunity and privilege to engage
with Union officers, staff and members in different industries and
continued to handle and supervise NLRB cases over the next 32 years, in
addition to being involved in collective bargaining, among many other
responsibilities. The collective bargaining process came to life for me
as I recognized that effective labor management relations is truly
about relationships. Yes, it is about constantly resolving disputes,
but at the core is the need to listen carefully with the objective of
helping parties who may enter the process miles apart, learn to also
listen and to compromise in order to address their mutual concerns.
Since 2000, I have engaged with union, management and NLRB staff
and officials from across the country and developed collegial well-
established relationships with my many colleagues. During my years at
the firm, I became involved with a committee of the American Bar
Association's Labor and Employment Law Section that focuses on the
National Labor Relations Act and decisions of the NLRB.
Since 2012, I have been an Advisory Board member of the Scheinman
Institute for Conflict Resolution of Cornell University's Industrial
and Labor Relations School which has provided me an opportunity, like
my parents before, to be an educator, my focus being on labor issues in
the field of conflict resolution and engaging with neutrals,
professors, and other union and management advocates.
I would also note that besides being a union lawyer I have worn a
management hat when representing and defending a large union as an
employer concerning issues relating to its 800-person staff.
Additionally, in my capacity on some non-profit boards on which I have
served, I have addressed employer issues.
My entire resume has led me to this confirmation hearing, but my
volunteer public service as a representative to the New York City
Office of Collective Bargaining, which is the agency for city employers
and city unions to address their workplace disputes, has very
particularly prepared me to join the National Labor Relations Board. As
a labor representative, my responsibility has been to enforce a local
law that is similar to the National Labor Relations Act. The labor
representatives and city representatives to the New York City Office of
Collective Bargaining serve as a model of effective labor relations.
While we bring different experiences and perspectives to the tasks at
hand, our goal is to be similarly impartial by applying the law to the
facts as I would do if I am confirmed to serve on the National Labor
Relations Board.
I have given you some insight into my background, some of the
influences and impacts of both my professional and personal life. But
before I close, I want to recognize that in the past 18 months, we have
lived under a pandemic that has taught us many things. By resolving
workplace issues as they arose on a daily or moment-by-moment basis,
employers, unions, workers, families and communities benefited. Enough
cannot be said about the essential workers who have done monolithic
work amid many personal sacrifices and the employers who provided
support to their essential workers under difficult circumstances.
Having the honor and privilege to represent essential workers in the
healthcare industry in hospitals, nursing homes or home care, has given
me yet more respect for their commitment to go to work everyday.
Whether as a union member or in management, surrounded by mounting
numbers of seriously ill and dying people, they were also faced with
profound concerns about spreading the virus to their own families. The
best of situations under this untenable moment were when management and
the union worked together to resolve workplace and patient care
issues--the impact of which might literally save the lives of staff,
their families and their patients in the multiple thousands. As we move
forward with the worst of the pandemic behind us--these lessons are
ones I will remember.
In closing, my parentage and extensive experiences have prepared me
to become a Member of the National Labor Relations Board and it would
be an honor to return to this agency which has been so important to my
evolution as a lawyer and to the lives of working people in this
country.
Thank you for the opportunity to appear before you today and I look
forward to your questions.
______
The Chair. Thank you, Ms. Wilcox.
Mr. Prouty.
STATEMENT OF DAVID PROUTY TO BE A MEMBER OF THE NATIONAL LABOR
RELATIONS BOARD
Mr. Prouty. Thank you. Chair Murray, Ranking Member Burr,
and Members of the Committee, thank you for the opportunity to
appear before you. I am honored and grateful for President
Biden's nomination and for your consideration of me for this
position as a member of the National Labor Relations Board.
I am joined today by my wife, Olive Crone, a midwife and a
native of the Republic of Ireland, and by my brother, Douglas
Prouty who is a high school English teacher in Montgomery
County, Maryland, and the vice president of the Maryland State
Teachers Association. Watching on C-SPAN I hope are my 93 year
old mother, Muriel Prouty, my sisters Carolyn and Eleanor, and
my children, Connor and Molly. By way of giving you some
background about myself, I would like to pay tribute to two
individuals who were no longer with us, who had an outsized
influence on me both as a labor lawyer and as a person.
The first, who is very kindly mentioned by Senator Van
Hollen, is my late father, Keith Prouty. My father was a World
War II veteran who went to work afterwards as an aircraft
engine mechanic at the Avco Lycoming plant in Fairfield,
Connecticut, where he became a shop steward and a member of
United Auto Workers Local 1010. In fact, one of my earliest
memories is of standing with him on the union's float in the
Labor Day parade in Bridgeport, Connecticut. My father
eventually left the shop and became a staffer and research
director for several unions. He then served for 20 years in the
office of the Secretary of the U.S. Department of
Transportation, where he acted as a liaison between nine
secretaries of transportation, both Republicans and Democrats,
and the country's railway and airline unions. My father taught
his children many lessons.
One that has been a particular touchstone of my career is
the idea of always dealing with everyone we encounter in good
faith. I only wish he were here with us today. The second
person to recognize is my late friend Jonathan Cain, who is a
management lawyer in Philadelphia, Pennsylvania. John and I
became good friends while serving as co-chairs of the ABA's
Committee on Practice and Procedure under the National Labor
Relations Act. We spent hours together doing the work of the
committee, including arranging presentations for members of the
NLRB, and we spent even more hours debating the finer points of
labor law.
Despite our differences, we wholeheartedly agreed on the
importance of the institution of collective bargaining and of
its benefits for both sides, labor and management when
conducted in an open, respectful, and creative manner. From
Jonathan I learned another touchstone that has guided my
career, that a good idea is a good idea no matter who first
introduces it. John passed away in 2016. I still miss him, and
I wish he were here today as well. These two touchstones,
dealing with everyone in good faith and recognizing that no
party has a corner on good ideas are ones that I hope to bring
to my service on the NLRB if I am fortunate enough to be
confirmed.
These two principles transcend partisan wrangling and
underscore my understanding that my service on the Board will
be as a neutral and that my obligation will be to listen openly
and fairly to all parties while deciding the cases that come
before the Board. In my career as a labor lawyer since 1986, I
have represented, among other occupations, clothing and textile
workers, housekeepers, waiters, Major League Baseball players,
and currently doormen and office cleaners.
I would bring those experiences to my work as a member of
the Board. I would also an equally important bring to this
position the knowledge gained in negotiating contracts with
employers in all of those industries. From countless hours at
the bargaining table, I have learned, I believe, a great deal
about the art of compromise and about the value of settlements
that leave both parties better off for having resolve their
differences in a peaceful manner. I have also learned to work
with and benefited from the outlooks of many excellent
management lawyers, just as I expect I will do with my
Republican colleagues on the Board.
Another viewpoint I would bring to my service on the NLRB
is the nearly 20 years I have spent as a General Counsel of
four different unions. In that capacity, I have had to
safeguard the legal status of large institutions, supervise
their business and financial affairs and Government compliance,
and indeed act as a management lawyer with respect to the
unions' employees and also the unions that represent those
employees. I have thus gained, I believe, a degree of empathy
for the role that my management counterparts have played vis a
vis their own clients.
Finally, I have for many years practiced and litigated
before the NLRB in regions all around the country. I have come
to have great respect for the National Labor Relations Act and
great appreciation and affection for the dedicated employees of
that agency.
They, too, are sworn to uphold the tenets of the law that,
as its preamble so eloquently says, ``is intended to encourage
the practice and procedure of collective bargaining.'' I look
forward, if I am confirmed, to supporting their efforts and to
drawing on their experience. Thank you. And I would be happy to
answer any questions you may have for me.
[The prepared statement of Mr. Prouty follows:]
prepared statement of david prouty
Chair Murray, Ranking Member Burr, and Members of the Committee,
thank you for the opportunity to appear before you. I am honored and
grateful for President Biden's nomination, and for your consideration
of me for a position as a Member of the National Labor Relations Board.
I am joined today by my wife, Olive Crone, a midwife and a native
of the Republic of Ireland, and by my brother Douglas Prouty, who is a
high school English teacher in Montgomery County, Maryland and the Vice
President of the Maryland State Teachers Association. Watching on C-
SPAN, I hope, are my 93 year old mother Muriel Prouty, my sisters
Carolyn and Eleanor, and my children Conor and Molly.
By way of giving you some background about myself, I would like to
pay tribute to two individuals who are no longer with us who had an
outsized influence on me as a labor lawyer and as a person. The first,
who was very kindly mentioned by Senator van Hollen, is my late father,
Keith Prouty. He was a World War II veteran and went to work afterwards
as an aircraft engine mechanic at the Avco Lycoming plant in Fairfield,
Connecticut, where he became a shop steward and a member of United Auto
Workers Local 1010. In fact, one of my earliest memories is of standing
with him on the union's float in Labor Day parades in Bridgeport,
Connecticut. My father eventually left the shop and became a staffer
and Research Director for several unions. He then served for 20 years
in the Office of the Secretary of the U.S. Department of
Transportation, where he acted as a liaison between nine Secretaries of
Transportation--both Republicans and Democrats--and the country's
railway and airline unions.
My father taught his children many lessons. One that has been a
particular touchstone of my career is the idea of always dealing with
everyone we encounter in good faith. I only wish he were here with us
today.
The second person to recognize is my late friend Jonathan Kane, who
was a management lawyer in Philadelphia, Pennsylvania. Jon and I became
good friends while serving as co-chairs of the ABA Committee on
Practice and Procedure Under the National Labor Relations Act. We spent
hours together doing the work of the Committee, including arranging
presentations from Members of the NLRB, and we spent even more hours
debating the finer points of labor law. Despite our differences, we
wholeheartedly agreed on the importance of the institution of
collective bargaining, and of its benefits for both sides--labor and
management--when conducted in an open, respectful and creative manner.
From Jonathan I learned another touchstone that has guided my career:
that ``a good idea is a good idea,'' no matter who first introduces it.
Jon passed away in 2016. I still miss him and wish he were here today
as well.
These two touchstones--dealing with everyone in good faith and
recognizing that no party has a corner on good ideas--are ones that I
hope to bring to my service on the NLRB if I am fortunate enough to be
confirmed. These two principles transcend partisan wrangling, and
underscore my understanding that my service on the Board will be as a
neutral and that my obligation will be to listen openly and fairly to
all parties while deciding the cases that come before the Board.
In my career as a labor lawyer since 1986 I have represented, among
other occupations, clothing and textile workers, housekeepers, waiters,
Major League Baseball players and, currently, doormen and office
cleaners. I would bring those experiences to my work as a Member of the
Board. I would also and equally importantly bring to this position the
knowledge gained in negotiating contracts with employers in all of
those industries. From countless hours at the bargaining table, I have
learned, I believe, a great deal about the art of compromise, and about
the value of settlements that leave both parties better off for having
resolved their differences in a peaceful manner. I have also learned to
work with, and benefited from the outlooks of, many excellent
management lawyers--just as I expect I will do with my Republican
colleagues on the Board.
Another viewpoint I would bring to my service on the NLRB is the
nearly 20 years I have spent as a General Counsel for four different
unions. In that capacity, I have had to safeguard the legal status of
large institutions, supervise their business and financial affairs and
governmental compliance and, yes, act as a management lawyer with
respect to the Union's employees and, indeed, the unions that represent
them. I have thus gained, I believe, a degree of empathy for the role
that my management counterparts have played vis a vis their clients.
Finally, I have for many years practiced and litigated before the
NLRB in regions all around the country. I have come to have great
respect for the National Labor Relations Act and great appreciation and
affection for the dedicated employees of this agency. They too are
sworn to uphold the tenets of the law that, as its preamble so
eloquently says, is intended to ``encourage the practice and procedure
of collective bargaining.'' I look forward if I am confirmed to
supporting their efforts and to drawing on their experience.
Thank you, and I would be happy to answer any questions you may
have for me.
______
The Chair. Thank you very much. We will now begin a round
of 5 minute questions. And I ask our colleagues to keep track
of the clocks, stay within those 5 minutes. We do have votes
beginning at 11 a.m.. Mr. Weil, I am going to begin with you.
The pandemic has hurt workers across the country, as you well
know, especially our frontline workers, women workers of color,
workers with disability, and millions faced new challenges,
lost child care, increased risk of illness, sudden loss of a
job and work.
Many of these individuals worked, as we know, in low wage
sectors with limited access to sick family and medical leave
and other workplace protections. The previous administration's
Wage and Hour Division did little to advocate for our workers.
Fortunately, the Biden administration and Secretary Walsh have
reinstated the Department of Labor's pro-worker mission.
I wanted to ask you today, if you are confirmed, how will
you ensure the Wage and Hour Division helps workers as they now
recover from the pandemic and build greater economic security?
Mr. Weil. Thank you, Chair Murray, for the question. I
think what would guide me is what always guided me in the past
when I was Wage and Hour Administrator, and what if I was
confirmed going forward, and that is the mission of Wage and
Hour, and that is to raise compliance with our labor standards
laws.
I would do that and including focus on the workforce that
have been seen to be very exposed to failure to pay the wages
and enforce the laws that they are entitled to, first by using
strategic enforcement as we did in the past to make sure that
we are targeting industries and employers who are really
violating the law and who erode those kinds of standards.
Second, though, enforcement alone cannot achieve that mission.
Equally important is outreach to the employer community in
terms of education and engagement about their responsibilities
under the law.
We did a great deal of that when I was Wage and Hour
Administrator in a variety of ways. And third, as your question
indicated, the pandemic did reveal that far too many workers
are falling through the cracks of the laws that they should be
covered by.
The third thing I would look very closely at are the causes
for the reasons workers are not being covered and working again
through the different instruments the Wage and Hour Division
has to make sure that those people are protected by our laws.
The Chair. Thank you very much. Ms. Wilcox, Mr. Prouty, you
both have extensive experience advocating for workers,
including workers who have been on the front lines during this
pandemic. And you have seen the significant challenges those
workers faced as they tried to exercise their right to
organize, to improve their pay and working conditions. And you
also each have previous experience with the NLRB.
If confirmed, how will your professional experiences inform
your approach now to serving as a neutral arbiter in the cases
brought before the Board? And I will start with Ms. Wilcox.
Ms. Wilcox. Thank you. Senator, my experiences as a union
lawyer and as a zealous advocate on behalf of workers will
obviously change because I will have to be a neutral arbiter of
the law as I was at the NLRB and also when I have served at the
New York City Office of Collective Bargaining. But I would say
that my experience is that I have a deep understanding of the
challenges that workers and unions actually suffer on the day
to day basis.
Hearing what was very informative as a field attorney and
reaching two of the NLRB, I was able to really hear stories
about how difficult it is. And certainly in my role as a union
lawyer, I understand that. But that is not without
understanding the fact that as a union lawyer, I also have to
deal with collective bargaining. And collective bargaining is
really about solving problems and understanding what the
management's positions are in order to breach issue.
I believe that those experiences will really help guide me
as I--if I am fortunate enough to be confirmed in a position
within NLRB.
The Chair. Thank you.
Mr. Prouty.
Mr. Prouty. Thank you, Senator Murray. I think as a way of
answering that question, I refer to my opening statement where
I spoke about the experience I have had with collective
bargaining. And most recently, I think illustrative of that and
the experience I bring to the Board is with the real estate
industry in New York, which, as you might imagine, was very
hard hit by the pandemic.
We have just worked through an entire series of agreements
to try to protect both the health insurance of workers who were
laid off, provide them with personal protective equipment,
provide them with the means of getting vaccinated, and ensure
also that the real estate industry survives in New York, which
is important because it is an employer of so many of the
members of Local 32 BJ.
I think that my service, if I am fortunate enough to be
confirmed, would bring that perspective of working with
employers, working with management to try to solve problems for
the benefit of both parties.
The Chair. Thank you very much.
Senator Burr.
Senator Burr. Thank you, Madam Chair. Dr. Weil, welcome. I
have written to you asking for your emails related to your work
with the Massachusetts Office of Attorney General Labor
Advisory Board. I ask you for this--I asked you for these
documents because a public records request from an outside
group to the Attorney General's Office for Records that totaled
some 1,200 is not going to be answered until December.
It is my understanding from them that--and what we asked
for were emails from you to them or them to you, which should
reside within your mailbox, is that an accurate statement?
Mr. Weil. Yes, thanks. Thanks for your question, Senator
Burr. I do know the request you made. I know that both the
Labor Department and the White House have been in discussions
with your office about that. And I am happy to comply with
whatever is resolved from that discussion.
Senator Burr. You are willing to turn over those emails to
the Committee?
Mr. Weil. I know that there are discussions going on with
the Labor Department and White House and your Committee, and I
am happy to comply with whatever is resolved from that, sir.
Senator Burr. Well, I appreciate that. I think it is safe
to say every Member on this Committee should have an
opportunity to look at those conversations. They are not
privileged in any way, shape, or form, and you possess them.
You have got full control to turn them over to the Committee
and let them look at it. I mean, it just raises a suspicion. I
just point that out. Listen, The Wall Street Journal said, and
I quote, ``that you are a lifelong left wing academic with
labor union sympathies, no private sector experience, or legal
training and limited management experience.'' Are they
accurate?
Mr. Weil. Thank you, Senator. No, I would contest that
characterization of me. First of all, I was a business school
professor, and I am proud of the thousands of MBAs I taught in
managerial economics and other issues. I am proud of the work I
have done as a mediator with employers and labor groups in
terms of economic competitiveness.
I am very proud in particular of my record when I served
running an agency with a $235 million budget, 2,000 employees,
and a very complex organization in my efforts to reach out to
the business community and my engagement with the business
community, which I am happy to talk about further, and also in
running in the last 4 years a school with a $32 million budget,
more than 200 full time equivalent employees, and all the
complexities of any organizations. So I think that
characterization of my experience is a little off.
Senator Burr. Ms. Wilcox and Mr. Prouty, just one question
for you. I have sort of examined the SEIU bylaws, and I think
both of you have an affiliation either at the national or local
levels with SEIU. And under the expanded definition of a joint
employer that was adopted during the Obama administration in
NLRB, can you explain why SEIU, under that definition, would
not be considered a joint employer given the local and
essentially using the franchise model where the international
can override anything that happens at the local level?
Ms. Wilcox. Well, Senator, thank you for your question. And
I would say that it is really not the same arrangement. The
local that I represent is an independent local of SEIU. And so
that the union index independently has its own bylaws and has
its own governing body and makes many decisions on its own
without regard to SEIU.
Senator Burr. Would you disagree with my interpretation
that the SEIU's bylaws state that the international union
controls?
Ms. Wilcox. I would disagree. From my understanding of what
the rules are, I have not looked at them in quite some time,
but the relationship between the local and the SEIU, for my
understanding, having represented the local for many years, is
that there is not any type of franchise, branch, or franchisee
arrangement between those parties.
Senator Burr. Mr. Prouty.
Mr. Prouty. Thank you for your question, Senator.
Senator Burr. Microphone, please.
Mr. Prouty. Thank you. If I could just add, I have great
affection for the State of North Carolina. If you ask my wife,
I think she thought for many years I was a resident of the
State of North Carolina.
Senator Burr. We would welcome you back in North Carolina.
Mr. Prouty. Thank you. Just to echo Ms. Wilcox. I am an
employee of the local 32 BJ, which is part of SEIU, but a
separate entity. It files its own registrations under the
Department of Labor. I don't--I am not employed by SEIU and so
I don't think that the joint employer model, as you laid out,
is analogous to the situation between SEIU and its locals.
There have been a lot of court decisions over the years
establishing that locals and international unions are actually
distinct entities. If either Ms. Wilcox and I or both of us are
fortunate enough to be confirmed, we have both done work for
locals and would abide by all the ethical rules regarding
recusal.
Senator Burr. I am not a lawyer and I certainly leave the
legal determinations up to the two of you rather than myself.
But it seems that the expanded interpretation is on the
architecture of a franchise and the architecture seems
identical to that of the bylaws of the SEIU. Let me just ask,
because the international union has such power over locals,
should you both recuse yourself of SEIU cases that come before
the NLRB so there is no appearance of impropriety?
Ms. Wilcox. I will start. Senator, thank you for your
question. Before appearing here today, I have signed an ethics
pledge and the ethics pledge would require me to uphold the
recusal policy, both in letter and spirit of that policy. And
so with regard to any issue that might come up regarding an
SEIU local or the international its own, I would be consulting
with the ethics officer of the agency. And with that, I would
look to see what is the guidance that would be provided in
those circumstances.
There is no--other than the two-year recusal policy with
regard to any cases at my firm or myself handled within the
last 2 years, that is very clear. In terms of cases coming up
in the future, I would have to evaluate those facts as they
arise, and certainly consulting with the Ethics Office of the
agency would be very important.
I would also want to assure you that I have, throughout my
career, 42 years as a lawyer, I have upheld to the highest
standard possible the ethical and professional responsibilities
that I am required to adhere to. And if I am fortunate enough
to be confirmed, I expect to continue to uphold those highest
standards. And so I want to assure you as well as the Committee
that I will take--I take these obligations very seriously. So I
will seek guidance in that matter.
Senator Burr. Thank you.
Mr. Prouty.
Mr. Prouty. Thank you, Senator. I, too, have tried to
maintain throughout my career a high level of ethical
responsibility. And I understand your concern about the
appearance of impropriety. In preparation for this nomination,
I spent a great deal of time with the NLRB Ethics Office, and I
have signed the Biden administration ethics pledge.
I will recuse myself from any SEIU local 32 BJ case that
comes before the Board in the next 2 years. If any SEIU matter
comes before the Board, I would, as Ms. Wilcox said, go to the
designated agency ethics officer and consult on their opinion
and act accordingly.
Senator Burr. Thank you for that. Thank you.
The Chair. Thank you.
Senator Smith.
Senator Smith. Thank you. Madam Chair and Ranking Member
Burr. And welcome to Dr. Weil and Ms. Wilcox and Mr. Prouty.
Thank you so much for your willingness to serve and your
commitment to public service. I greatly appreciate it. Now, it
is my hope that as America recovers from the COVID-19 pandemic
and as our country continues to grapple with the injustice of
systemic racism, that you will hold fast to your commitment to
the value that every worker in this country should have the
opportunity to work and to be fairly compensated, and that in
particular should have the opportunity to benefit from the real
value of their labor.
Dr. Weil, you said in your testimony, working people
receive a fair day's--should receive a fair day's treatment for
a fair day's work, and the businesses that employ them should
comply with the law and compete on a level playing field. So I
want to ask you, Dr. Weil, about one issue of great concern to
me. According to the Economic Policy Institute, Americans lose
three times more in wage theft than they do in street
robberies, bank robberies, gas station robberies, and
convenience store robberies all combined.
Think of that. That is money that workers are--that has
been stolen by their employees who they should trust as their
employees to stand up for them. And of course, the victims of
wage theft are disproportionately low wage workers, they are
women, they are workers of color. So, Dr. Weil, could you--how
do you assess this challenge, this problem of wage theft? And
if you are confirmed, what do you see that you can do in your
role to prevent this from happening?
Mr. Weil. Thank you, Senator Smith, for the question and I
think a very apt characterization of the scope of the problem.
Unfortunately, wage theft is far too common in the economy. It
tends to be concentrated in certain industries and often
focused on certain kinds of employers. One of the things that I
was very intent on doing when I had the honor of serving before
was making sure, through data driven kinds of analysis, we
focused on those places where workers were most vulnerable to
the wage theft you have described.
To really understand that we were not only protecting them,
but we were protecting really the unwinding of compliance that
happens once one party starts playing games with the law on the
competitive playing field for others. So as an agency, we have
very limited resources. We cover some 10 million workplaces of
the fair labor--under the Fair Labor Standards Act and other
laws.
The challenge is to make sure that those resources, whether
for enforcement or through engagement and education, are really
getting to the businesses and to the workers who are most
affected by the problems that you have outlined. And if I was
confirmed, I would redouble those kinds of efforts to make sure
that we were focusing on where the real big problems were.
Senator Smith. Thank you for that. I think so often these
workers are in work environments where they have so little
power. And in fact, many of them are forced into forced
arbitration clauses as they take on employment, which makes it
even more difficult for them to exercise their power and to do
what they need to do to stand up for themselves. And more and
more, we are seeing these forced arbitration clauses being
imposed on workers as a condition of employment.
I have seen an estimate recently that says that by 2024,
forced arbitration will be in place and over 80 percent of
workplaces covering more than 85 million workers. And again,
this is a problem that disproportionately affects Black and
women female workers. Almost 60 percent of Black workers and 58
percent of women female workers are subjected to this practice
in the workplace.
Could you tell us, Dr. Weil, how you see this--how you see
the impact of forced arbitration clauses on individuals'
ability to exercise their rights and what we can do about it?
Mr. Weil. Thank you for the question, Senator Smith. I
think what you are raising is part of a much larger problem
that we often experience in terms of making sure that the
rights and responsibilities of the law are acted upon. And that
is many, many workers, particularly in the industries you were
talking about in your first question, are very frightened of
exercising the rights they have. In terms of what Wage and Hour
did during my time there, and is doing, to my understanding
under the Biden administration, is very cognizant of that fact.
And that is why the agency used a mix of following up on
complaints and also doing proactive investigations, because we
know many of the workers who we need to help at the time, and I
would say this is still true today, don't exercise those rights
and there are barriers.
The kinds of arbitration clauses you cite are additional
barriers in many cases. While the Wage and Hour Division
doesn't have any direct authority over that, I think it can be
very cognizant of the underlying problem of people being able
to exercise their rights as you have outlined it.
Senator Smith. Thank you. I know, Madam Chair, I am out of
time. I would just like to say in closing that I believe that
protecting workers rights to organize and to bargain
collectively for better working conditions and better wages and
benefits actually contributes to the competitiveness of our
economy and contributes to the overall health of our economy.
It is not a choice between workers, stronger workers' rights
and protecting businesses that employ them. So I hope that you
will carry that value forward as you, I hope, are confirmed.
Thank you.
The Chair. Thank you.
Senator Marshall.
Senator Marshall. Thank you, Madam Chair, and welcome to
our nominees to our Committee hearing. Like the Ranking Member,
I come from the private world as well. For 25 years, every
other week I signed a paycheck for as few as three people, for
as many as 300 people. Every day in my office, I would say 40
to 50 women. There wasn't a board, voluntary board in our
community that I didn't serve on, practically speaking. And
until--I was on the Small Business Committee on the House side
for 3 years as well. And until we started seeing nominees come
here at the HELP Committee, I never heard a bad word about
franchises. I had never heard of disdain about them.
As a matter of fact, I think just quite the opposite. I
think it is a shot at the American dream. I have seen so many
people from the franchise model be successful, quite often
giving minorities and women that opportunity to run and own
their own business. The franchise model has a recipe that fixes
sometimes when people try it independently that they fail.
I have just seen the success over and over again. Some
people like a Starbucks model where it is a big corporation and
then taking care of the employees and other people prefer
Dunkin Donuts, where there is a franchise, and a local
franchisor is making the decisions on the wages and the hours
of those employees. So I guess I am shocked to dive into some
of your background.
Dr. Weil, I would just assume you don't like franchises and
you think that they are a bad model. You have described them as
a form of outsourcing. And I guess I just want to know how
specifically is franchising a form of outsourcing? And if you
had your way, would you abolish the franchise model?
Mr. Weil. Thank you, Senator Marshall, for your question
and I am happy to clarify on that because I think both in in my
writing and more importantly in what I did at Wage and Hour, I
showed that I didn't have an inherent antagonism toward
franchising. What I have written and what we did was looking
closely as the law requires, beginning with the law in terms of
who is described as a joint employer and who isn't. The law has
to always frame where we start. I mean that is where we always
started when I was Wage and Hour Administrator.
From there you go to the facts. And this is where there is
a whole range of different arrangements under franchising. Some
very legitimate forms of franchising where joint employer
relationships might not be on the table, other forms where
there is joint employment, and some forms of franchising which
are problematic.
When I was at the Wage and Hour Division in some cases
where we had problematic forms of franchising which were in our
view and the view of the solicitor at the time, a form of
misclassification, we used enforcement strategies, but I was
also very proud of a relationship we built with Subway
sandwiches, which was about working with them for training of
their franchisees where there was no allegation or effort to
establish joint employment.
Quite the opposite, we worked collaboratively together. I
signed an agreement with the then CEO, Susanne Greco, that we
were all very proud of. So I think it ultimately comes down to
the facts, as in any case of applying the law as it is
established and as courts have interpreted it to the specific
facts of the case. And that certainly applies to my view of
franchising as a whole range of business relationships.
Senator Marshall. Kind of have a follow-up question there.
Whether we are jeopardizing the IRS or weaponize the Wage and
Hour Division, my concern is just the increased legal burden
and the costs that your office created historically. 93 percent
increase in litigation after your interpretation regarding the
joint employer. We lost 376,000 job opportunities. Are you
aware of the impact of the litigation cost to a small business
that you are putting on people? And do you feel like it is
justified now retrospectively?
Mr. Weil. Thank you, Senator Marshall. I am very cognizant
of those costs. And that is why, again, at Wage and Hour when I
was Administrator, we took a very focused approach based on, in
some cases using enforcement, but in many other cases using
outreach, education, and engagement. I know that most
businesses in this country are complying with the law, and our
efforts shouldn't be focused on them.
There are some employers who violate Fair Labor Standards
Act because they don't fully understand it. That is what we did
with Subway to help them educate newer franchisees about their
obligations under the law. I think it is that spectrum of
approaches that is absolutely important to address the very
real issues you are raising, Senator.
Senator Marshall. Thank you. I yield back.
The Chair. Thank you.
Senator Tuberville.
Senator Tuberville. Thank you very much. Thank you for
being here today. Ms. Wilcox, in your current legal practice,
you primarily represent unions and legal matters. Throughout
your career, you have written numerous publications outlining
your support for unions, including one in particular where you
advocate for a ban on state right to work laws.
Even further, you wrote that you believe work organizations
should be given the right to require worker dues from employer,
irrespective of their status as an exclusive representative or
nonexclusive representative of employees. As you know, Alabama
is right to work. We just had a big fight down there with
Amazon and they voted the union out. Do you believe the Federal
Government knows better than workers in your opinion, on
whether to unionize or not?
Ms. Wilcox. Well, thank you, Senator, for your question.
The National Labor Relations Act is a statute that protects the
right of employees to engage in collective bargaining and
organizing, and also to refrain from that as well. The role of
the NLRB is to monitor cases that come before it. It does not,
as you know, go and look for cases. Parties have to come to the
NLRB.
The obligation of the NLRB is to enforce those--enforce the
Act based upon the facts as a result of any type of an
investigation. Certainly, the NLRB staff are very dedicated
professionals who understand the Act, have been enforcing it,
and I understand and both the employee side, the union side, as
well as employers. So I do think that the agency is a very well
established agency to understand and enforce the Act that is
required to do.
Senator Tuberville. Thank you. Mr. Prouty, in some of your
most recent writings, you have shown yourself to be very
critical of former NLRB General Counsel Peter Robb, who was
abruptly fired by President Biden on Inauguration Day well
before his term was scheduled to expire. These writings outline
unions' concerns with Mr. Robb. In your opinion, was that
appropriate for President Biden to fire him the first day?
Mr. Prouty. Thank you for your question, Senator. I don't
have an opinion about the firing of Mr. Robb. I was not
involved in it. And it is a matter that may come before the
NLRB. If I am fortunate enough to be confirmed, I might have to
look at that again and I don't want to prejudice myself by
anything I might say here.
Senator Tuberville. Thank you. I worked in higher education
for almost 40 years, and you have expressed the notion that
college students working in jobs on their campuses should have
the opportunity to unionize. Could you explain that?
Mr. Prouty. Senator, thank you for your question. I wrote
the article you are referring to when I was an advocate, as I
still am right now. My understanding of my position on the
National Labor Relations Board will be as a neutral, not as an
advocate for one side or the other. And so my obligation would
be to look at all the facts and circumstances of the case that
come before me, including on the issue that you raised there.
And if I am fortunate enough to be confirmed, I will do so. And
I will obviously bring my experience to bear on that. But I
will pledge to you that I will look at every issue and consider
all sides that come before us.
Senator Tuberville. Okay, thank you. Dr. Weil, because
you--this is a your second go around here in this situation.
The International Franchise Association, along with dozens of
other organizations contacted my office, ringing off the wall.
There is many fears that your return to Wage and Hour will
directly, immediately pose a threat to their business models,
with potential to put countless Americans out of jobs.
Your past actions have shown that you believe in organized
labor above all else, even when that comes at a cost of jobs
themselves. So my people are out there listening today in
Alabama. Give me your thoughts about your first go around at
this point and how you can help people of Alabama that are
franchisees owners.
Mr. Weil. Thank you, Senator Tuberville, and I am fond of
the State of Alabama. I have a new son in law from your state.
Senator Tuberville. Hope he is an Auburn fan.
Mr. Weil. I would rather not answer that part of the
question. No, thank you, thank you for the question. I think
what I would say is look at my record when I was Wage and Hour
Administrator last time. I think we had a very fine record of
reaching out and working with businesses and understanding
their needs, whether that was in the process of how we worked
on regulations, how we implemented existing policies, or how we
thought about our outreach efforts.
I was very proud of the creativity of different ways we
used to make sure that people understood that, businesses
understood their responsibilities under the law. And I often
said, and you can find in my public statements, often began
basically acknowledging most businesses are complying with the
law and that what our task was, is to enforce where people were
playing games with the law or undermining those who were
actually complying with the law or providing the kinds of
outreach and assistance that I think would help businesses in
Alabama and across the country.
Senator Tuberville. Thank you. I would just like to throw
one thing out there, Madam Chair.
The Chair. We do have votes--go ahead.
Senator Tuberville. I don't want an answer from you. I just
want to let you know that in Alabama we are being overwhelmed
with thousands of people that are coming across the border
looking for jobs. Dr. Weil, you are going to have to be
responsible in your new position of how in the world are we
going to feed these people and feed the people that their jobs
are going to overtake. It is going to be an unbelievable job
that we are going to have.
A million probably people coming in this year taking jobs
away from American workers. I don't know how we are going to
control that, especially when they are illegal. They don't have
identification. They don't have any way to make a living other
than the American taxpayer and hard workers are going to pay
for their welfare and their well-being.
We have got to find a way to get them involved, and a lot
of people in my state are up in arms in terms of how do we
handle this. Thank you very much.
The Chair. Thank you, Senator Tuberville.
Senator Lujan.
Senator Lujan. Thank you, Madam Chair. And I appreciate the
line of questioning from my friend as well. And I think there
is a reason why the agricultural community across America, they
are trying to secure visas now because they don't have enough
labor. Many people coming in. And we have got to fix this
broken immigration system that we have in the United States,
reminding ourselves that about half the folks that are in the
country undocumented are here on expired visas as well. And so
I think it is a reason for us to fix this and for us to work
together and make sure we are able to have the labor that we
need so we have a stronger economy.
When we look at economic growth in America, a lot of that
is built on migration to America. As a matter of fact, if we
don't have enough folks come into the country, GDP doesn't
grow. And that is what smart economists say. I am just a
Senator from New Mexico, but I depend on the smart folks to
help me understand what is going on there. So I look forward to
working with all my colleagues in that space. I want to thank
our Chair and our Ranking Member for this important hearing.
And I want to thank our witnesses for joining us today for all
of these important positions at the Department of Labor.
Dr. Weil, in advance of a major infrastructure package, we
must ensure robust protections for workers by strengthening
Davis Bacon enforcement. The president's budget request of $30
million in increases for the Wage and Hour Division to
aggressively combat worker misclassification, along with fully
enforcing the other areas under its--like prevailing wages.
Unfortunately, I have heard concerns that the inclusion of
unnecessary labor and craftsman subcategories in the Department
of Labor's Vocational Wage Service undermined its ability to
establish a fair wage. Dr. Weil, if confirmed, will you commit
to working with me to address issues in the wage categories
within the wage service process?
Mr. Weil. Thank you, Senator Lujan, for that question, and
I would be delighted to work with you and your office on that.
The Davis Bacon program really requires three elements. It
requires, first and foremost, that the wage determinations are
accurate and really capture local labor market conditions.
Davis Bacon can do the things of predicting the wages for
communities it meant to, and then working as well with the
agencies who make--who actually contract the work to make sure
that they are making the right designations, and then finally,
that the Wage and Hour Division enforces the Davis Bacon rules
as they apply. So I would be happy to work closely with you to
make sure that all three of those things are happening.
Senator Lujan. Appreciate that. And Chair, I think it is
also important that we work together to have robust enforcement
of Davis Bacon, so I appreciate that mentioned. Ms. Wilcox,
reaching non-English speaking and other vulnerable workers
should be one of the National Labor Relations Board's top
priorities, especially in the wake of a pandemic.
The National Labor Relations Board launched a new Spanish
language version of its website in March 2021, along with two
Spanish language Twitter accounts for news and information from
the General Counsel's Office. Ms. Wilcox, if confirmed, what
would you do to enhance the National Labor Relations Board's
Spanish Language Outreach?
Ms. Wilcox. Senator, thank you for your question. As a
Board member or as a potential Board member, and I certainly--I
look forward to having the opportunity to be confirmed and to
become a Board member, some of those issues will come up in the
matter of cases and so I can't really specifically address the
issues that might come before me. But I certainly believe it is
important that the National Labor Relations Board continue on
its efforts to communicate and provide opportunities for
everyone to understand the Act and what the agency is about and
its services that it provides.
That making language communications in Spanish and other
languages to make certain that Americans who are here are able
to be able to access the agency's efforts and website, as well
as other communications as effectively as possible.
Senator Lujan. I would like to follow-up with you on that.
New Mexico is the only state in the country whose state
constitution was drafted in English and in Spanish. My
grandparents and parents first language was Spanish.
Generations of people in the United States, this is important,
and I look forward to following up and working with you on
that. Mr. Prouty, if confirmed, what would you do to strengthen
outreach to rural populations, especially those without access
to reliable broadband?
Mr. Prouty. Thank you for that question, Senator. I have
done a lot of work in rural areas. A lot of the work earlier in
my career was in textile industries, which were located mostly
in rural areas. So I am familiar with that. And I know that
there is an issue with the amount of knowledge that people have
about the Labor Act.
One thing I would point to is that the NLRB has asked for
authorization for an increased budget, which would include
money for outreach specifically to underserved areas, and also
to find new means and new media to make sure that employees are
advised and know about their rights under the National Labor
Relations Act.
Senator Lujan. Appreciate that. And Chair Murray, I do have
a question on wage theft. I will submit into the record. I want
to follow-up specific to farm workers and others that I know
that have been victims of wage theft and see if we can work
together there. I thank all the witnesses and the nominees for
being here today. Thank you, Madam Chair.
The Chair. Thank you.
Senator Murkowski.
Senator Murkowski. Thank you, Madam Chair. And I will be
brief. I know we have got votes. Thank you for being before the
Committee and for your willingness to serve here. Dr. Weil, let
me start with you. You have been quoted that the only way to
implement an ABC style test for determining whether a worker is
an independent contractor is through legislation not
regulation. So the question for you hopefully briefly is, is
whether that is accurate and if you still stand by that in
terms of this ABC test?
Mr. Weil. Thank you, Senator Murkowski. I have to mention
my daughter, who is married to the man from Alabama, is on her
way to Alaska as we speak. First trip there.
Senator Murkowski. Good. Have a wonderful time.
Mr. Weil. She is very excited. The statement that you
quoted is accurate. The Fair Labor Standards Act describes to
employee as to suffer or permit work, and courts and the agency
over decades have used that to fashion an economic realities
test. And that is what the Administrator needs to work under.
The Administrator doesn't have the authority to
independently set another criteria. Only Congress could do that
in terms of defining who isn't and who is an employee. And we
would follow what I followed when I was last Administrator,
which is what both the agency has done historically and what
courts have said in terms of the interpretation of who is an
employee and who is an independent contractor.
Senator Murkowski. Recognizing that, for instance, in
California, there have been--there has been a fair amount of
latitude, I guess, with exemptions. How does that fall into I
guess your response to me here?
Mr. Weil. Thank you for the question. I think where that
falls in, it is very important. And we--for the regulated
community to understand what the law says as it currently
stands in terms of economic realities. That is why we did issue
a great deal of guidance when I was head of Wage and Hour.
To clarify that, to clarify on where things fall. In many
cases it is clear, but in some cases it is a gray area. And I
think that is where guidance and then the consistent
application of the economic realities test remains very
important in terms of the responsibility of an Administrator.
Senator Murkowski. One more question for you. This relates
to the paid program, the Payroll Audit Independent
Determination program. This was the one that allowed employers
to self-audit, identify minimum wage, overtime errors, pay
employees everything that they were owed without expanding Wage
and Hour Division resources.
In exchange, these employers wouldn't be subject to
liquidate damages or civil monetary penalties. As we look back
on that program, it was credited with recovering more than $7
million in back wages for more than 11,000 workers. So the
Biden administration still canceled this program. Your views on
this program, should it be reinstated?
Mr. Weil. Thank you for your question. I was obviously not
involved in that decision. What I would say is what I would
consider on any enforcement or engagement program is its impact
on compliance. I always come back to the mission about
increasing compliance.
My concerns with earlier forms of self-audits was that, in
my view, the time required to do them properly could have been
better spent in other forms of either outreach, education, or
enforcement that would yield higher impacts ultimately on
raising compliance, particularly in problematic industries and
problematic employers.
I would evaluate any initiative sort of with that economist
logic, what is the impact, given the resources expended for it?
Senator Murkowski. Thank you. This is to both Ms. Wilcox
and Mr. Prouty. You have both been labor side attorneys, Ms.
Wilcox since 1988 and Mr. Prouty since 1986. How can each of
you describe how you will approach the job of being a neutral,
fair arbiter of the law for both employers and unions, if you
are confirmed? You have been working on one side of it. How can
you give me the assurance that you are going to bring balance
to this position? Ms. Wilcox, do you want to start?
Ms. Wilcox. Senator, thank you for your question. First I
would like to say that actually starting in 1983, I started
working at the NLRB, which really gave me the experience of
working as really a neutral and that my goal was to enforce the
National Labor Relations Act. And so that experience really has
helped to inform me in terms of this position.
Second, as a union lawyer, I have also worn a management
hat at times. The union I represented--a large union I
represent, has close to 800 employees. And so in that capacity,
I have also defended and represent the union with regard to the
myriad of employee issues. And I would also add that with the
process of being a union lawyer, really it is really important
to understand the collective bargaining space that in order to
do and be effective as a union lawyer, you really do have to
understand management's position.
Those relationships that I have built up over the years in
terms of collective bargaining and dealing with management and
understanding what their issues are, really allows the parties
to get to a point of reaching a compromise and agreement.
Those experiences are really just help--will be very
helpful, as well as the fact that as a labor representative to
the New York City Office of Collective Bargaining, I actually
have to be impartial in terms of making a decision. Certainly
myself and the city representatives bring our different
experiences to the table, but our goal is to be impartial. So--
--
Senator Murkowski. Ms. Wilcox, I am going to cut you off
because I am well over my time.
The Chair. Yes, and I would like to let all the Committee
Members know we do have a vote on. So we are actually going
to--this will be our last questioner at this point. So I
apologize to Senator Braun for just coming in, but we do vote.
We have to get to it, or we will miss the vote. They are
holding it for us.
Senator Murkowski. Mr. Prouty, can you just very quickly
address this and--thank you.
Mr. Prouty. Sure. Thank you Senator Murkowski for your
question. I just want to add that I spent one of the best
summers of my life in Sitka as a law student for a firm there.
Just very briefly, in my opening statement I said, I believe
wholeheartedly in collective bargaining. I believe that it is a
win-win process and that employees benefit from being able to
negotiate their terms with employers, and employers benefit
from hearing the voice of workers. If I am fortunate enough to
be confirmed, I would want to make sure that principle is
enforced, and indeed the Act calls for the promotion of the
collective bargaining process.
The Chair. Thank you. Thank you, apologies to Senator
Braun. Senator Burr. Thank you very much. That will end our
hearing today. And I want to thank all of our colleagues and
our witnesses, Dr. Weil, Ms. Wilcox, Mr. Prouty, for a very
thoughtful discussion about how to protect workers' rights and
build an economy that truly works for them and their families.
For any Senators who do wish to ask additional questions,
questions for the record will be due tomorrow at 5 p.m. and the
hearing record will remain open for ten business days for
Members who wish to submit additional material for the record.
The Committee will meet next on Tuesday, July 20th, at 10
a.m. in Dirksen 430 for a hearing on the Federal response to
the COVID-19 pandemic. The Committee stands adjourned.
ADDITIONAL MATERIAL
DOMESTICWORKERS.ORG,
45 Broadway, Suite 320 New York, NY.
Aug 3, 2021
Hon. Patty Murray, Chair
Hon. Richard Burr, Ranking Member
Senate Committee on Health, Education, Labor, and Pensions,
428 Dirksen Senate Office Building,
Washington, DC.
Dear Chair Murray and Ranking Member Burr:
On behalf of the National Domestic Workers Alliance, we write to
strongly support the nomination of Dr. David Weil to serve as the
Administrator of the Wage and Hour Division of the U.S. Department of
Labor (DOL).
The National Domestic Workers Alliance (NDWA) is the Nation's
leading voice on behalf of the 2.2 million domestic workers. Domestic
workers are the nannies that take care of our children, the house
cleaners that bring order to our home, and the care workers that ensure
that our loved ones can live with dignity and independently. These
essential workers are majority women, and mostly immigrants and women
of color. NDWA has 74 affiliate organizations and local chapters.
As Administrator, Dr. Weil would be responsible for enforcing wage
and hour laws, including the minimum wage, overtime pay, recordkeeping,
and family and medical leave. Dr. Weil's exemplary record in academia
and public service experience leadingthe Wage and Hour Division from
2014 to 2017 make him uniquely and eminently qualified as an advocate
for domestic workers and millions of other workers in our economy.
Dr. Weil has been one of our country's most important public policy
leaders who has spent his career studying and understanding labor
policy and labor markets. He is an internationally recognized expert
that has quite literally written the book on the matter of changing
labor market dynamics, and more importantly, what can and should be
done about it. Dr. Weil has both the expertise and experience to hit
the ground running from day one, which is critical, given the
extraordinary public health and economic crises we face. When he held
this same position during the Obama-Biden administration, Dr. Weil was
a leader in ``strategic enforcement.'' He sought the most effective
ways to use limited resources to increase compliance with workplace
protections by pursuing investigations and enforcement actions that
would have the greatest impact and most long-lasting results. He was
also instrumental in righting a historical wrong that extended basic
protections to some of our Nation's most important essential workers--
homecare workers--by upholding the DOL's decision to bring them within
Fair Labor and Standard Act's minimum wage and overtime protections
after decades of exclusion.
America's workers were in crisis before the pandemic.The COVID-19
pandemic has laid bare and exacerbated that too many low-paid workers
lack basic workplace protections, and lack access to financial
security. In addition, women of color workers and their families have
borne the brunt of the economic fallout, while also lacking access to
many of the relief measures needed to survive this pandemic.
We need proactive, thoughtful leaders who are experts and have
decisively led on these matters for decades to steer the important work
of protecting and enforcing the rights of millions of workers. Dr. Weil
is unequivocally qualified to be Administrator of the DOL Wage and Hour
Division and has the enthusiastic support of our domestic worker
movement. If we can answer any questions, please do not hesitate to
contact us.
Sincerely,
Ai-jen Poo,
Director,
National Domestic Workers Alliance.
______
American Association of Franchisees and Dealers,
P. O. Box 10158, Palm Desert, CA.,
January 10, 2022
Hon. Patty Murray, Chair
Hon. Richard Burr, Ranking Member
Senate Committee on Health, Education, Labor, and Pensions,
428 Dirksen Senate Office Building,
Washington, DC.
Dear Chair Murray and Ranking Member Burr:
As Chair of the Board of Trustees of the American Association of
Franchisees and Dealer (AAFD), I am pleased to express my support for
the confirmation and reappointment of Professor David Weil for
Administrator of the Wage and Hour Division of the Department of Labor
(DOL).
AAFD is the oldest and largest national not for profit trade
association advocating the rights and interests of franchisees and
independent dealer networks. The AAFD supports affiliated chapters for
more than 50 brands engaged in franchising, representing thousands of
franchisee operated business outlets. Since our establishment in 1992,
the AAFD has focused on its mission to define, identify and promote
collaborative franchise cultures that respect the legitimate interests
of both franchisors and franchisees, cultures we describe as embracing
our vison of Total Quality Franchising. The AAFD came into existence
in response to a franchising community that has been evolving toward
increasingly one-sided and controlling franchise agreements and
cultures whereby franchisee equity and business ownership has been
continually eroding such that many modern franchise systems have lost
all vestiges of business ownership.
Professor Weil has been a strong supporter of protecting franchisee
rights and fighting against the very oppressive control exercised by
many franchisors that have led to the formation of franchisee
associations and AAFD chapters. The concerns he has raised closely
mirrors the arguments we have raised for years regarding the erosion of
equity rights among franchisees. Having a voice who will champion
franchisee rights will be a refreshing plus that can support franchisee
advocates' efforts to claw back against excessive franchisor controls.
For these reasons, I believe Professor Weil's reappointment will be
a good steward at the DOL and we ask that you support his nomination
and move forward with his confirmation as Commissioner.
Respectfully submitted,
Robert L. Purvin, Jr,
Chair, Board of Trustees,
American Association of Franchisees and Dealers.
______
Americans for Tax Reform,
June 22, 2021.
Dear Members of the Senate Health, Education, Labor, and Pensions
Committee:
President Joe Biden has nominated David Weil to lead the Department
of Labor's Wage & Hour Division, an agency with a $330 million budget
that is responsible for enforcing all major labor laws. A recycled
Obama-era appointee, Weil previously served in this position from April
2014 to January 2017, and was confirmed on a party-line vote with
unanimous Republican opposition.
Based on Weil's extensive record in the Obama administration and
his anti-free enterprise views, it is obvious that Weil does not
deserve a second chance at DOL to further his harmful agenda.
Members of the Senate HELP Committee should reject David Weil to
lead DOL's Wage & Hour Division.
Weil suffers a lack of real-world experience beyond the ivory tower
and his previous stint as Wage & Hour chief. In 2013, the Wall Street
Journal called Mr. Weil a ``life-long, left-wing academic with labor-
union sympathies, no private-sector experience or legal training, and
limited management experience.''
Weil is not shy about using the full force of government power to
advance his radical agenda. In a 2007 academic paper, Weil wrote:
``Regulatory systems provide the government with tools to change
private behavior, and those tools are usually related to enforcement
activities.''
Weil has a longstanding hostility to free enterprise. Weil is a
major proponent of the liberal ``fissured workplace'' theory, which
alleges that outsourcing, independent contracting, and franchising are
responsible for every single progressive criticism of employers. Weil
has used this left-wing theory to push for an aggressive expansion of
the DOL's enforcement capabilities to expand government control over
American businesses.
Weil would work overtime to dismantle business models that employ
millions of Americans, the last thing we need as our economy attempts
to rebound from the pandemic. Weil has attacked franchising, which
employs an estimated 7.6 million Americans, as ``a form of
outsourcing.'' Weil is a staunch opponent of the right to work as an
independent contractor, issuing a report in 2015 that construed the
definition of an ``employee'' in an overly broad fashion that made it
impossible for businesses to work with freelancers. Approximately 59
million Americans engage in some form of freelance work.
Weil supports doubling the Federal minimum wage to $15/hour, a
death blow to millions of American jobs and thousands of small
businesses. A $15 minimum wage would drastically raise labor costs at a
time when businesses are struggling just to keep the lights on thanks
to government-mandated lockdowns. According to the nonpartisan
Congressional Budget Office, a $15 minimum wage could kill as many as
3.7 million American jobs.
If confirmed as Head of the Wage & Hour Division, Weil would be in
the pole position to enforce the radical PRO Act if President Biden
signs it into law. The PRO Act would nullify Right to Work laws in 27
states, which prevent employers from forcing workers to join a union
just to get a job. The PRO Act nationalizes California's onerous ABC
test that makes it nearly impossible to work as an independent
contractor. Finally, the PRO Act stacks the deck in favor of Big Labor
by changing several election rules for unionizing efforts.
Ultimately, Weil is a radical left-wing academic that has a long
paper trail of anti-worker, anti-free enterprise, pro-union boss views.
Weil did enough damage during his first tenure at the Wage & Hour
division, so no Republican should give him a second bite at the apple.
Members of the Senate HELP Committee should reject David Weil to
lead the DOL's Wage and Hour Division.
Onward,
Grover G. Norquist President,
Americans for Tax Reform.
______
Chamber of Commerce of the United States of
America,
July 13, 2021.
Hon. Patty Murray, Chair
Hon. Richard Burr, Ranking Member
Senate Committee on Health, Education, Labor, and Pensions,
428 Dirksen Senate Office Building,
Washington, DC.
Dear Chair Murray and Ranking Member Burr:
The U.S. Chamber of Commerce has concerns regarding the nomination
of David Weil to be the Administrator of the Wage and Hour Division
(WHD) at the Department of Labor (DOL).
As WHD Administrator during the Obama administration, Dr. Weil took
positions on critical questions under the FLSA. This includes whether
an employee would be exempt from overtime, finding joint employment
relationships, and whether a worker is an employee or an independent
contractor. His actions regarding these issues are detailed below.
Overtime Exempt Status under the FLSA--Dr. Weil promulgated a
regulation that raised the salary threshold for determining whether an
employee is exempt from overtime from $23,660 annually to $47,476
annually--more than doubling it. As a result, millions of employees who
had enjoyed flexible hours and professional status were converted to
non-exempt status and put on the clock. Surveys showed that many
employees who had been previously exempt valued the flexible hours and
work schedules being exempt provided them. Furthermore, the rule
applied to all employers including charitable non-profits who could not
afford to keep employees working the same hours and would have been
forced to reduce the services they provide to those in need. The
regulation was eventually struck down by a Federal judge in Texas who
ruled that the new threshold was so high it rendered moot the salary
test for exempt status. The Trump administration's DOL promulgated a
new salary threshold of $35,568 which is currently in effect. Employers
are concerned that this salary threshold may be increased under Dr.
Weil.
Joint Employment Under the FLSA--Whether two employers are
considered joint employers is a key issue when one company contracts
with another for services. This has also been alleged to occur in
franchising relationships. If they are considered joint employers, the
hiring company, or franchisor, can be held liable for the other
employer's FLSA violations. While Administrator of WHD, Dr. Weil issued
an Administrator's Interpretation on finding joint employment under the
FLSA. Dr. Weil's AI determined a joint employment relationship existed
even when one employer only had ``indirect control'' of the other
employer's employees, such as in a staffing arrangement where the so-
called joint employer did not control work rules, hours, or wages of
the staffing company's workers. The AI was rescinded by the Trump DOL
and replaced by a regulation that reset the terms for joint employment
to require actual control of another employer's employees. That
regulation is now in the process of being rescinded. If confirmed, Dr.
Weil would be able to promulgate a new regulation reflecting the
definition of joint employment in the AI he issued.
Employee versus Independent Contractor Classification Under the
FLSA--Dr. Weil issued another AI that sought to clarify when a worker
should be classified as an employee and when that worker can be
considered an independent contractor. The AI relied on the ``economic
realities'' test which includes several factors such as the nature and
degree of the employer's control; the permanency of the worker's
relationship with the employer; the amount of the worker's investment
in facilities, equipment, or helpers; the amount of skill, initiative,
judgment, and foresight required for the worker's services; the
worker's opportunities for profit or loss; and the extent of the
integration of the worker's services into the employer's business.
Under the AI, all of these factors were to be considered together, with
no specific factor or factors being considered more important than the
others. Because of this, an employer would never be able to tell
whether they had properly classified a worker as an employee or an
independent contractor until the WHD made the determination. The AI was
rescinded by the Trump DOL and replaced with a balanced regulation that
ordered the various factors so that employers would be able to properly
classify a worker as an employee or independent contractor. That
regulation has been rescinded by the current DOL, restoring the
previous state of confusion and uncertainty to classification of
employees.
In addition to the economic realities test, another test for
determining whether a worker is an employee or independent contractor
is known as the ABC test. An individual is classified as an employee
unless they satisfy all three prongs: (A) the individual is free from
control and direction in connection with the performance of the
service, both under the contract for the performance of service and in
fact; (B) the service is performed outside the usual course of the
business of the employer; and (C) the individual is customarily engaged
in an independently established trade, occupation, profession, or
business of the same nature as that involved in the service performed.
The ABC test makes finding an independent contracting relationship
exceedingly difficult. Dr. Weil has been quoted as saying that an ABC
test could only be implemented through legislation, not regulations.
Therefore, if confirmed, Dr. Weil may promulgate a regulation for
determining independent contractor status under the FLSA that will
reflect the AI he issued, thereby preserving confusion and uncertainty
for employers.
Thank you for reviewing these issues. We hope the Committee gives
these actions serious attention as Dr. Weil's nomination is considered.
Sincerely,
Glenn Spencer.
______
Coalition for a Democratic Workplace,
July 14, 2021
Hon. Patty Murray, Chair
Hon. Richard Burr, Ranking Member
Senate Committee on Health, Education, Labor, and Pensions,
428 Dirksen Senate Office Building,
Washington, DC.
Dear Chair Murray and Ranking Member Burr:
The Coalition for a Democratic Workplace (CDW) writes to urge the
Senate Health, Education, Labor, and Pensions Committee to oppose the
nominations of Gwynne Wilcox and David Prouty to serve as members of
the National Labor Relations Board (NLRB) due to their biases against
the employer community and clear conflicts of interest. If confirmed,
both Wilcox and Prouty will face conflicts of interest based on their
previous employment histories, the organizations they have represented,
and the litigation and issues they have previously supported. They
cannot and will not serve as neutral arbiters of the law.
CDW is a broad-based coalition of hundreds of organizations
representing hundreds of thousands of employers and millions of
employees in various industries across the country concerned with a
long-standing effort by some in the labor movement to make radical
changes to the National Labor Relations Act without regard to the
severely negative impact they would have on employees, employers, and
the economy. CDW was originally formed in 2005 and has since focused on
pushing back against regulatory overreach by the NLRB.
Wilcox previously represented the Fight for $15 advocacy group
where she worked on various issues under the NLRB's jurisdiction,
including the joint employer standard, one of the most controversial
and divisive issues of the day. Wilcox represented the organization
during the NLRB's biggest joint employer liability case in the agency's
history. Any cases before the Board dealing with this and other issues
that she worked on during her time with Fight for $15 will raise
conflict of interest concerns. Prouty, on the other hand, as the
current General Counsel of the Service Employees International Union
(SEIU), will likely be forced to recuse himself from any case involving
the union or its numerous affiliates and partner organizations and any
issues on which he worked during his time with the union.
CDW is concerned that Wilcox and Prouty will not be able to fairly
adjudicate cases involving issues or policies on which they have
previously participated. They will have predetermined notions on policy
outcomes prior to analyzing the case or circumstances in question.
After several years of back and forth over the NLRB's recusal policies,
it is clear that these nominees will create additional uncertainty for
the Board and all stakeholders under their jurisdiction.
CDW urges the Committee to oppose these nominations over their
biases and the potential impact they will have on the ability of the
Board to act as neutral arbiters of the Nation's labor-management
relations law.
Sincerely,
Kristen Swearingen,
Chair,
Coalition for a Democratic Workplace.
______
Coalition Letter,
July 13, 2021
Hon. Patty Murray, Chair
Hon. Richard Burr, Ranking Member
Senate Committee on Health, Education, Labor, and Pensions,
428 Dirksen Senate Office Building,
Washington, DC.
Dear Chair Murray and Ranking Member Burr:
The undersigned are writing to express our serious concerns with
the nomination of David Weil to be Administrator of the Wage and Hour
Division (WHD) at the U.S. Department of Labor (DOL). Dr. Weil
previously served as WHD Administrator from 2014 to 2017. Based on his
previous service at DOL, and his track record of bias against
employers, particularly the smallest employers in America, we are
concerned that Dr. Weil would implement policies at the DOL that are
unbalanced and would harm workers and small businesses, in particular
women and minority-owned businesses that employ millions of Americans.
For these reasons, we urge the Committee to reject Dr. Weil's
nomination.
We respectfully submit our concerns with Dr. Weil's agenda,
including:
Open Bias Against Small Businesses. Dr. Weil has an extensive track
record of hostility toward specific business models, industries, and
companies that employ millions of Americans in every state. In his 2014
book ``The Fissured Workplace,'' as well as numerous academic writings,
and public forums in coordination with labor unions, Dr. Weil has
expanded on his ideology and belief that the DOL should take an
aggressive and activist approach to enforcement, particularly against
lead enterprises that do business with smaller firms. During his time
in the Obama administration, this worldview resulted in several harmful
actions that are outlined in this letter. Dr. Weil's ideology is a
cause for great concern for small employers, who are often the
contractors and franchisees against whom Weil has telegraphed his
intended enforcement.
Unlawful 2016 Overtime Rule. During his tenure as Administrator,
Dr. Weil was the architect of DOL's revised white collar overtime rule,
which would have more than doubled the minimum salary level for exempt
employees from $455 per week ($23,660 annually) to $913 per week
($47,476 annually), an unprecedented expansion of Fair Labor Standards
Act (FLSA)'s overtime coverage. In a successful legal challenge to the
rule, the U.S. District Court for the Eastern District of Texas
characterized the increased overtime threshold as a ``drastic'' change
that would extend FLSA mandates to 4.2 million employees from the
exemption even though they performed exempt job duties. The court
ultimately concluded that DOL unlawfully and impermissibly exceeded its
rulemaking authority by promulgating these regulations and enjoined
them on a nationwide basis. The Obama overtime rule would have been a
massive burden on employers, and we are concerned that Dr. Weil will
pursue an aggressive revision to overtime rules that will harm small
businesses as our economy works to recover from the COVID-19 pandemic.
Restrictive Independent Contractor Status. In 2015, Dr. Weil issued
an Administrator's Interpretation (AI) under the FLSA, in which DOL
adopted an unreasonably strict standard for ``independent contractor''
classification, rejecting decades of case law emphasizing ``control''
over an individual's work, and focusing instead on ``economic
dependency'' in a manner that would effectively eliminate the use of
independent contractors across a range of business models. Indeed, the
standard adopted in this AI was premised on Weil's well-publicized view
that most workers should be classified as statutory employees under the
FLSA, and would have eliminated the preferred model of work for
countless individuals who choose to work as independent contractors to
control their own schedule, work flow, income, and independence.
Notably, this move to dramatically limit the ability of workers to
operate as independent contractors almost exactly squares with the
abolition of independent contracting sought by organized labor in H.R.
842/S. 420, the Protecting the Right to Organize Act or ``PRO Act,''
which would adopt a draconian ``ABC test'' for determining independent
contractor status, and as a practical matter, destroy the business
model and disrupt the livelihoods of millions of Americans.
Unprecedented Expansion of Joint Employment. In 2016, Dr. Weil
issued another AI which dramatically expanded joint-and-several
liability for ``joint employers'' under the FLSA. This change broadened
the definition of ``joint employer'' to include employers who exercised
only indirect control of the employees, for example, in a staffing
arrangement where the so-called joint employer did not control work
rules, hours, or wages of the staffing company's workers. Particularly
significant and onerous, the AI would have made national franchisors
``joint employers'' of their franchisees' employees, even where
franchisor has little to no direct control over terms and conditions of
these workers' employment. Again, the theories of joint employment Dr.
Weil has espoused mirror the disastrous PRO Act, which would seek to
impose liability on a wide range of employers for unfair labor
practices in which they played no role.
Between 2016-2018, Mr. Weil's unilateral broader standard of joint
employment cost franchise businesses an additional $33.3 billion per
year in operational and legal costs, resulted in 376,000 lost job
opportunities, and led to a 93 percent increase in lawsuits. \1\ Had it
not been withdrawn by the previous Administration, this AI would have
sacrificed more jobs and increased frivolous litigation. Given Dr.
Weil's open hostility to certain small businesses, we are concerned he
will again seek a harmful joint employer standard that will reduce job
and entrepreneurial opportunities for many Americans.
---------------------------------------------------------------------------
\1\ Jointemployerfacts.com.
The undersigned organizations believe that Dr. Weil will, if
confirmed again, once more use the power of the DOL beyond
congressional intent to enact policies that will harm workers and small
businesses during the economic recovery. We believe that a thorough and
fair review of Dr. Weil's record will illustrate that he is unfit to
lead the WHD in the impartial manner that is critical to both enforce
Federal law and encourage economic growth during the post-pandemic
---------------------------------------------------------------------------
recovery.
Thus, we urge Committee Members to reject Dr. Weil's nomination.
Thank you for considering these views.
Sincerely,
Associated Builders and Contractors,
Coalition of Franchisee Associations,
Franchise Business Services,
Job Creators Network,
Independent Electrical Contractors,
International Franchise Association,
International Warehouse Logistics Association,
National Association of Home Builders,
National Association of Wholesalers-Distributors,
National Franchisee Association,
National Restaurant Association,
Small Business and Entrepreneurship Council,
TechNet,
Truck Renting and Leasing Association.
______
Wall Street Journal--Biden's PRO Enforcer
https://www.wsj.com/articles/president-joe-biden-pro-act-david-
weil-union-progressive-labor-nominee-11626384645
What unions can't get from Congress, they seek from Labor nominee
David Weil.
July 15, 2021
By Kimberly A. Strassel
Some people fear the unknown. The Biden administration inspires
alarm over the familiar. Consider the business community's welcome new
focus on David Weil.
Mr. Weil will receive a confirmation vote next week for his
nomination to run the Wage and Hour division of the Labor Department.
If successful, Mr. Weil will retake the position he held in the latter
Obama years. These pages described him at his first nomination as a
``life-long, left-wing academic with labor-union sympathies, no
private-sector experience or legal training, and limited management
experience.'' That depiction turned out to be generous.
From 2014 to early 2017, Mr. Weil lumbered business with an
unlawful overtime rule, sweeping restrictions on the use of independent
contractors, and new ``joint employment'' rules that imposed crushing
operational and legal costs on small companies. He exhibited a
particular hostility to any business model innovative enough to avoid
Big Labor tyranny. Think franchises, contractors, gig workers--the
models that provide scrappy entrepreneurs (often women and minorities)
the chance to break into business, and sectors that employ millions.
Bad as those years were, business is aware that a Weil
reconfirmation would prove even more destructive. The Biden
administration is pressing Congress to pass the Protecting the Right to
Organize Act, a legislative monstrosity that would eliminate right-to-
work states and turn union bosses into the masters of workplaces
everywhere. Should they fail to sneak the bill through as part of a
budget-reconciliation measure (Senate rules could make that hard), the
White House will deputize the Labor Department to implement as much of
it as possible through regulatory fiat. Mr. Weil would be a chief
enforcer, and history shows he won't be shy.
Put another way, the Weil nomination is shaping up as a proxy vote
for the PRO Act. And it's had the remarkable effect of reminding U.S.
business that there are battles to fight, and that they matter far more
than scraping for approval from woke America. In the run-up to Mr.
Weil's Senate hearing this Thursday, the business community engaged in
a fierce campaign against the nomination, exhibiting a determination
that's been missing for too long in corporate world. It was downright
refreshing.
Among the letters of rejection that flowed in was one signed by a
coalition of 14 industry groups, including the International Franchise
Association, the National Association of Home Builders, the Independent
Electrical Contractors and the National Restaurant Association. (Only a
handful of groups opposed Mr. Weil's nomination in 2013.) The U.S.
Chamber of Commerce has raised red flags, and free-market outfits from
Americans for Tax Reform to the Hispanic Leadership Fund have joined
the fight. Mr. Weil is downright ``unfit'' to run the division,
especially during the ``post-pandemic recovery,'' reads the coalition
letter.
Ideology is one thing, but what these groups consider disqualifying
is Mr. Weil's contempt for the law, his track record of imposing by
regulatory fiat what Congress refused to do. That includes a 2016
overtime rule that more than doubled the salary threshold for which
employees counted for extra pay, a change that would have saddled
companies with overtime outlays for four million additional employees.
It was an untethered expansion of Labor Department policy, and a
Federal judge in Texas struck down the ``drastic'' rule in 2017, noting
that it rode roughshod over Congress's clear overtime exemption for
certain white-collar employees. Imagine what Mr. Weil, and this
mentality, could do with dozens of unenacted PRO Act provisions.
Business is also focusing on Mr. Weil's enmity toward franchises
and contractors, just as these sectors are proving a post-pandemic
lifeline, and even as Senators all insist they want to help small
business. In his prior Federal go-round, Mr. Weil issued rules
stripping most contractors of their independence, forcibly
reclassifying them as employees (the better to unionize them). He more
recently worked with the Massachusetts attorney general to sue Uber and
Lyft, part of that blue state's effort to kill its own gig economy.
Sen. Richard Burr and the American Accountability Foundation, a
nonprofit watchdog, have requested his email correspondence in that
case, but the state government and the White House are stonewalling.
The documents ought to be a prerequisite for any Senate vote.
The anti-Weil lobby is focusing its attention on the three Senate
Democrats who haven't signed on to the PRO Act. Virginia's Mark Warner
has expressed concerns about the bill's attack on independent
contractors, while Arizona's Kyrsten Sinema and Mark Kelly claim to be
friends of small business. The coalition wants Democrats to understand
they won't be allowed to split the difference quietly--to distance
themselves from a bill that isn't likely to pass anyway, while green-
lighting a nominee who will institute it by other means.
Their message: A vote for Mr. Weil is a vote for the PRO Act. And
whatever the outcome, at least business is making itself heard.
______
[Whereupon, at 11:27 a.m., the hearing was adjourned.]
[all]