[Congressional Record Volume 160, Number 61 (Monday, April 28, 2014)]
[Senate]
[Pages S2415-S2418]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                             CLOTURE MOTION

  The PRESIDING OFFICER. Under the previous order, pursuant to rule

[[Page S2416]]

XXII, the clerk will report the motion to invoke cloture.
  The assistant bill clerk read as follows:

                             Cloture Motion

       We, the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     hereby move to bring to a close debate on the nomination of 
     David Weil, of Massachusetts, to be Administrator of the Wage 
     and Hour Division, Department of Labor.
         Harry Reid, Tom Harkin, Jon Tester, Barbara Boxer, 
           Charles E. Schumer, Benjamin L. Cardin, Patrick J. 
           Leahy, Richard J. Durbin, Robert P. Casey, Jr., 
           Christopher A. Coons, John D. Rockefeller IV, Carl 
           Levin, Bill Nelson, Sheldon Whitehouse, Christopher 
           Murphy, Patty Murray, Tom Udall.

  The PRESIDING OFFICER. By unanimous consent, the mandatory quorum 
call has been waived.
  The question is, Is it the sense of the Senate that debate on the 
nomination of David Weil, of Massachusetts, to be Administrator of the 
Wage and Hour Division, Department of Labor, shall be brought to a 
close?
  The yeas and nays are mandatory under the rule.
  The clerk will call the roll.
  The assistant bill clerk called the roll.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  Mr. DURBIN. I announce that the Senator from Alaska (Mr. Begich), the 
Senator from Delaware (Mr. Coons), the Senator from Louisiana (Ms. 
Landrieu), and the Senator from Arkansas (Mr. Pryor) are necessarily 
absent.
  Mr. CORNYN. The following Senators are necessarily absent: the 
Senator from Arkansas (Mr. Boozman), the Senator from Kansas (Mr. 
Moran), and the Senator from Florida (Mr. Rubio).
  Further, if present and voting, the Senator from Florida (Mr. Rubio) 
would have voted ``nay.''
  The yeas and nays resulted--yeas 51, nays 42, as follows:

                      [Rollcall Vote No. 109 Ex.]

                                YEAS--51

     Baldwin
     Bennet
     Blumenthal
     Booker
     Boxer
     Brown
     Cantwell
     Cardin
     Carper
     Casey
     Donnelly
     Durbin
     Feinstein
     Franken
     Gillibrand
     Hagan
     Harkin
     Heinrich
     Heitkamp
     Hirono
     Johnson (SD)
     Kaine
     King
     Klobuchar
     Leahy
     Levin
     Manchin
     Markey
     McCaskill
     Menendez
     Merkley
     Mikulski
     Murphy
     Murray
     Nelson
     Reed
     Reid
     Rockefeller
     Sanders
     Schatz
     Schumer
     Shaheen
     Stabenow
     Tester
     Udall (CO)
     Udall (NM)
     Walsh
     Warner
     Warren
     Whitehouse
     Wyden

                                NAYS--42

     Alexander
     Ayotte
     Barrasso
     Blunt
     Burr
     Chambliss
     Coats
     Coburn
     Cochran
     Collins
     Corker
     Cornyn
     Crapo
     Cruz
     Enzi
     Fischer
     Flake
     Graham
     Grassley
     Hatch
     Heller
     Hoeven
     Inhofe
     Isakson
     Johanns
     Johnson (WI)
     Kirk
     Lee
     McCain
     McConnell
     Murkowski
     Paul
     Portman
     Risch
     Roberts
     Scott
     Sessions
     Shelby
     Thune
     Toomey
     Vitter
     Wicker

                             NOT VOTING--7

     Begich
     Boozman
     Coons
     Landrieu
     Moran
     Pryor
     Rubio
  The PRESIDING OFFICER. On this vote the yeas are 51, the nays are 42.
  The motion is agreed to.
  Mr. ALEXANDER. Mr. President, I have many concerns with the 
nomination of Dr. David Weil to be the Administrator of the Wage and 
Hour Division at the Department of Labor--DOL.
  The Wage and Hour Division is an important agency that oversees the 
enforcement of more than a dozen laws that govern just about every 
private sector employment relationship in America. To fill this 
position, we need someone who can be trusted by both employees and 
employers to enforce the law without bias, and we need a qualified 
manager. Unfortunately, I think Dr. Weil fails to meet that standard.
  My greatest concern is about his ability to be impartial in carrying 
out the duties of his office. This role requires that he be a neutral 
arbiter of law. But we have a number of writings and lectures by Dr. 
Weil that suggest he may use the power of government to pursue how he 
thinks the employer/employee relationship should be defined.
  Dr. Weil has written a new book called ``The Fissured Workplace: Why 
Work Became So Bad for So Many and What Can Be Done to Improve It.'' In 
this book, he suggests the Department of Labor Wage and Hour Division--
the division he is nominated to lead--could look for ways to expand its 
current interpretations of labor law and should target employers who 
use certain business models. In addition, in his book, Dr. Weil singles 
out a number of major employers, such as Marriott, Time Warner, Bank of 
America, Walmart, Hershey, AT&T, Verizon, Subway, Hyatt, Apple, and 
FedEx. Dr. Weil states that current labor laws and traditional 
regulatory enforcement allow companies such as these to ``have their 
cake and eat it too,'' because they use common business models such as 
subcontracting and supply chains and, therefore, can push liability for 
compliance with workplace statutes off to other entities that are in 
their business model.
  He further says that companies use multilayer business models ``to 
avoid unionization,'' and appears to be critical of that, stating that 
employers ``she[d] employment'' to find ``more subtle ways to shift 
away from a highly unionized workforce or move work to forms of 
employment that are both legally and strategically difficult for unions 
to organize[.]''
  Dr. Weil has been critical of the franchising industry as a whole. 
For example, Dr. Weil believes the Wage and Hour Division should 
investigate corporate entities for wage and hour violations at 
individual franchises/locations even though a direct employer-employee 
relationship may not exist. He recommends investigating industries that 
employ significant numbers of low-wage workers, such as the fast food, 
hotel/lodging, and construction industries.
  The franchising industry has been an incredible engine of economic 
growth in this country and, according to the International Franchise 
Association, has created hundreds of thousands of successful small 
businesses, employing over 8 million individuals. Many of these 
businesses are owned by people who started on the bottom rung of the 
economic ladder, making minimum wage, and worked their way up all the 
way to the top. Many of them are owned by women and minorities. For so 
many people, franchising has been the path to the American Dream.
  Take, for example, Laurie Palmer of Waterville, ME, who owns four 
Burger King franchises and employs approximately 140 people. She is 
already worried about the prospect of closing her business with 
possible minimum wage increases and the cost of Obamacare. The last 
thing she should be worrying about is being singled out for a wage and 
hour investigation simply because she is a franchisee.
  Dr. Weil's responses to written questions while his nomination was 
before the HELP Committee also raised several questions about his 
policy positions. He gave non-answers to some pretty simple questions.
  He would not answer yes or no when asked if he supports instructing 
Wage and Hour Division investigators to presume a worker is an employee 
even if the employer has told investigators the worker is an 
independent contractor. In other words, if an employer hires an 
independent contractor, Dr. Weil may feel that he has the discretion to 
decide that person is really an employee.
  This is important because, just this month, a Texas Federal district 
court judge slapped DOL, and ultimately the taxpayer, with half a 
million dollars in costs for a failed wage and hour lawsuit. The Wage 
and Hour Division unsuccessfully tried to claim that a company's 
independent contractors were employees. After multiple investigative 
missteps noted by the court, including a wage and hour investigator 
improperly shredding and burning interview notes and incorrectly 
assessing a $6 million penalty against the company, the court found 
``DOL failed to act in a reasonable manner'' and did not believe a 
reasonable person would conclude the folks in question were employees. 
If Dr. Weil is confirmed, I hope he reads the court's decision closely 
to ensure this type of investigative behavior does not happen again.
  Dr. Weil's writings suggest he may have a bull's eye on industries 
that use subcontracting and franchising. And he would not answer yes or 
no when asked to commit to treating all complaints equally based on the 
merits instead of the industry. Instead, he committed to

[[Page S2417]]

giving the agency's investigators guidance on how to prioritize 
complaints, but made no indication of what complaints he thinks should 
be a priority.
  I am also concerned about Dr. Weil's lack of management experience. 
If confirmed, Dr. Weil will be charged with supervising the work of 
more than 1,800 employees in 54 field offices covering all of our 
states and territories, with a $224 million budget. Dr. Weil has no 
management experience beyond supervising small teams of people at 
Boston University and Harvard.
  Several outside groups, including the Associated Builders and 
Contractors, the International Franchise Association, and the National 
Restaurant Association have also expressed their opposition to Dr. 
Weil. The Wall Street Journal underscored its concerns with Dr. Weil by 
describing him as ``a life-long, left-wing academic with labor union 
sympathies, no private-sector experience or legal training, and limited 
management experience.''
  Last, I will note that this position has not had a confirmed 
Administrator since the Bush Administration and this fact cannot be 
blamed on Republican delays or use of the filibuster. The President has 
nominated two individuals to this position, both of whom voluntarily 
withdrew before any HELP Committee votes were scheduled. The last 
nominee withdrew his nomination in August of 2011--a full 32 months 
ago.
  After waiting this long, we need to get this right. I cannot support 
a nominee who has advocated expanding current law beyond what Congress 
intended, nor could I support a nominee who is a proponent of targeting 
industries and employers who use certain business models rather than 
being responsive to complaints of breaches of the law or one that has 
the underlying goal of increasing unionization without regard to the 
desires of employees themselves. Therefore, I cannot support Dr. Weil's 
confirmation.
  Mr. HARKIN. Mr. President, I rise today to express my strong support 
for the nomination of Dr. David Weil to serve as Administrator of the 
Wage and Hour Division at the Department of Labor.
  The Wage and Hour Division oversees some of the most fundamental 
protections for American workers: it ensures that people are paid 
fairly in accordance with our minimum wage and overtime laws. It 
protects vulnerable children when our child labor laws are abused. It 
ensures that workers can spend time with their families when a new baby 
is born or a health crisis is looming. In short, this relatively 
unknown agency plays a huge role in how Americans experience their day-
to-day working lives.
  However despite this important mission, this critical agency was 
unfortunately allowed to atrophy during the last administration. The 
division took a backseat approach that relied almost exclusively on 
complaint-driven enforcement--relying on the questionable assumption 
that vulnerable workers know their rights and will approach the agency 
to report violations of the law--rather than taking a more proactive 
approach to educate workers and seek out industries and populations 
where abuses are likely to happen. Furthermore, even this complaint-
driven system was often poorly managed--the Government Accountability 
Office issued a harshly critical report finding that Wage and Hour 
``frequently responded inadequately'' to those complaints that it did 
receive.
  The current administration has corrected these problems and beefed up 
enforcement, revitalizing this essential agency. It has improved the 
complaint process and encouraged ``strategic enforcement'' that is 
geared to efficiently using limited resources to maximize compliance 
with the law.
  With this new vision, the division has made great strides. Over the 
past 5 years, the Wage and Hour Division has returned more than $1.1 
billion in stolen wages to workers whose rights were violated. They 
have done the best job ever of targeting their investigations to the 
workplaces that have the most violations, even when the workers felt 
too threatened or too disempowered to complain. The Division also 
successfully completed vital regulations to expand minimum wage and 
overtime protections to nearly 2 million home health aides. As a result 
of the division's efforts, these hardworking people will soon get the 
most basic of worker protections, and our country will benefit from a 
more stable and reliable workforce to assist people with disabilities 
and our elderly loved ones live full and independent lives.
  There are certainly more challenges ahead for Wage and Hour. In 
addition to implementing the new minimum wage rules for home care 
workers in a careful and thoughtful manner, the division will be tasked 
with developing an important new Obama administration initiative to 
update our outdated overtime rules. I am a strong supporter of this 
effort. Too many Americans are working longer and harder without 
anything to show for their efforts in their paycheck. Often low-wage 
and modestly paid workers can be forced to work long hours without 
overtime compensation because the threshold for determining which 
workers are automatically eligible for overtime pay is set too low. It 
is long past time to update these rules, to prevent abuses of low-wage 
workers and ensure fair compensation for those who work long hours.
  The Wage and Hour Division will also be tasked with implementing any 
minimum wage legislation passed here in Congress. While we will, of 
course, set the contours of the law here in Congress, the Wage and Hour 
Division will be tasked with ensuring that employees and employers are 
educated about the new law and that employers are complying with its 
requirements.
  In facing these critical challenges, I can think of no one better to 
lead the Wage and Hour Division into the future than Dr. David Weil. 
Dr. Weil is one of the Nation's leading experts on enforcement of wage 
and hour, safety and health, and other workplace regulations. He has 
spent the last 20 years teaching at Boston University's School of 
Management, where he has done extensive empirical research on the 
prevalence of wage and hour violations and the effectiveness of 
different enforcement strategies. Because of his expertise, he has been 
called on to work extensively with Labor Department officials for many 
years to help them improve the efficiency and effectiveness of the Wage 
and Hour Division. He has served as a consultant to the Department of 
Labor under both Democratic and Republican administrations, and has 
also advised both Democratic and Republican officials at the State 
level. His expertise on these issues is indisputable.
  Dr. Weil also approaches these issues from a unique perspective. He 
has spent two decades as a professor of management at a business 
school, teaching a course on strategic decision-making for businesses. 
This insight into businesses' decision-making process will be 
invaluable to working at the Wage and Hour Division--both to understand 
businesses better and to work with them more effectively. Dr. Weil also 
has extensive experience in collaborating with a variety of groups, 
often playing a role of mediator and advisor--skills that will help him 
work effectively with both worker advocates and the business community 
to advance the mission of the Wage and Hour Division.
  Some of my colleagues on the other side of the aisle have taken issue 
with Dr. Weil's scholarship promoting strategic enforcement. I will 
confess that I find these criticisms hard to understand. The basic idea 
that Dr. Weil has articulated is that we have limited enforcement 
resources, and that we should target those resources--to the best of 
our ability--to industries where there is an objectively verifiable 
pattern of noncompliance and where workers are particularly vulnerable 
to abuse.
  This is a commonsense approach, especially in times of tight budgets. 
We need to be trying to get the best bang for our enforcement buck, and 
Dr. Weil has some great ideas for how to do that. I would think all the 
fiscal conservatives in this Chamber would be applauding his 
suggestions to build a more efficient and effective Wage and Hour 
Division. This sort of innovative thinking and strategic and efficient 
planning will be a tremendous asset to the agency.
  Indeed, a group of Dr. Weil's peers, respected academics at a variety 
of universities, strongly agree with this conclusion. They note: David 
is one of if not the nation's leading expert on enforcement of safety 
and health, wage and hour, and other workplace regulations. He has done 
extensive research

[[Page S2418]]

on the effectiveness of different enforcement strategies and has worked 
intensively with Labor Department officials for many years to improve 
the efficiency and effectiveness of the policies he will be entrusted 
to administer. The letter also notes his ``long history of public 
service,'' including his work with current and former agency leadership 
on both the Democratic and Republican sides. I ask unanimous consent to 
have the text of this letter printed in the Record.
  As this letter confirms, while Dr. Weil has never worked directly for 
the division, he is intimately familiar with its mission and 
operations. He knows the Department, he knows the laws, and he can hit 
the ground running to move this important agency forward.
  It is clear that Dr. Weil is an exemplary candidate to administer the 
Wage and Hour Division. It is unfortunate that the Wage and Hour 
Division has been without a Senate-confirmed leader for many years now, 
and I am glad that we will soon be able to change that. I thank Dr. 
Weil for his willingness to go through this process, and for his 
commitment to public service. I urge my colleagues on both sides of the 
aisle to support this nomination and allow it to move forward quickly 
so that Dr. Weil can get to work doing the important business of the 
Wage and Hour Division.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:
                                                 October 29, 2013.
     Hon. Tom Harkin,
     Chairman.
     Hon. Lamar Alexander,
     Ranking Minority Member, Committee on Health, Education, 
         Labor and Pensions, Washington, DC.
       Dear Chairman Harkin and Ranking Member Alexander: We are 
     all academics who study different aspects of employment 
     relations and public policy. Each of us has worked in and/or 
     advised the Department of Labor and other federal and state 
     government agencies in both Democratic and Republican 
     administrations. While we do not all share the same views on 
     employment policy issues, we share a tremendous respect for 
     David Weil and believe he would be an excellent Administrator 
     of the Wage and Hour Division of the Department of Labor.
       David is one of if not the nation's leading expert on 
     enforcement of safety and health, wage and hour, and other 
     workplace regulations. He has done extensive research on the 
     effectiveness of different enforcement strategies and has 
     worked intensively with Labor Department officials for many 
     years to improve the efficiency and effectiveness of the 
     policies he will be entrusted to administer.
       He brings a long history of public service to this 
     position. Among other things he worked closely with the late 
     John Dunlop, Secretary of Labor in the Ford Administration, 
     on a major study of work practices and productivity in the 
     apparel and textile industries. He currently serves as Co-
     Director of the Transparency Policy Project at Harvard 
     University's Kennedy School of Government. He is recognized 
     by his colleagues at Boston University as an extremely 
     competent, fair, and thorough administrator.
       For the past eight years he has served as the neutral Chair 
     of the Dunlop Agricultural Labor Commission, a position that 
     requires gaining and maintaining respect and trust from 
     diverse groups of employers, contractors, employees, 
     immigrants, and unions.
       For all these reasons, we are pleased to endorse the 
     President's nomination of David Weil to be the Administrator 
     of the Department of Labor's Wage and Hour Division. Please 
     feel free to contact any of us if we can be of further help 
     to your Committee.
           Sincerely,
       Richard Freeman, Professor, Department of Economics, 
     Harvard University;
       Harry Katz, Dean, School of Industrial and Labor Relations, 
     Cornell University;
       Lawrence Katz, Professor, Department of Economics, Harvard 
     University;
       Thomas Kochan, Professor, MIT Sloan School of Management;
       David Levine, Professor, Haas School of Business, 
     University of California-Berkeley;
       Lisa Lynch, Dean, Heller School for Social Policy and 
     Management, Brandeis University;
       Robert McKersie, Professor Emeritus, MIT Sloan School of 
     Management;
       Paul Osterman, Professor MIT Sloan School of Management;
       James Rebitzer, Chair, Dept. of Economics, Law & Policy, 
     School of Management, Boston University.

                          ____________________