[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

                              ----------                              

                               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.]

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