[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
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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
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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.
____________________