David Weil does not come across as a left-wing bomb-throwing extremist, not this soft-spoken scholar with tortoiseshell glasses, a receding hairline and his consistently polite responses to accusatory questions from some members of a Senate committee considering his appointment to a high workstation department.
Corporate lobbies say they are not fooled by such superficiality. At Brandeis University, where he is dean of the Heller School of Social Policy and Management, Weil “pushed critical race theory and Marxist thought onto students,” according to Heritage Action, an offshoot of the Heritage Foundation. of right.
A coalition of 14 industry groups, including the International Franchise Association and the National Restaurant Association, sent a letter to the Senate Committee on Health, Education, Work and Pensions calling Weil “unfit” to lead the powerful division of wages and hours of the department.
The United States Chamber of Commerce sent a separate objection. During his previous stint as division director under the Obama administration, the House grumbled: “Dr. Weil has taken a position on critical issues” such as “whether an employee would be exempt from overtime, finding joint labor relations and whether a worker is an employee or an independent contractor.
The chamber’s complaint is not that Weil has taken a position on these issues, but that his positions have consistently favored workers.
The pro-management Competitive Enterprise Institute has expressed its objections in the most succinct manner. “Weil,” he said, “is a great advocate for organizing.”
It should come as no surprise, one supposes, that the corporate lobbies oppose the placement of a high-ranking pro-worker individual in the department. of work. They got used to making their way during the Trump administration, which worked diligently to transform the agency into the Department of Employer Rights.
Trump did this by repealing many regulations put in place by Weil himself. The implicit idea, hailed by the business community, was that the federal government did not have enough business-friendly agencies, so why not add the Department of Labor to the list?
Now Trump’s actions are being overturned by the Biden administration, which is developing a broad portfolio of pro-worker policies. The relocation of Weil at Wage and Hour is part of this strategy.
So does Biden’s support for the Right to Organize Protection Act, or PRO Act, a sweeping move that would ban a host of actions used by employers to interfere with organizing.
These include organizing meetings to disseminate anti-union propaganda, which workers are required to attend; dismiss workers involved in the trade union organization; and falsely classifying employees as independent contractors to deny them their trade union rights.
The PRO Act would also overturn right to work laws in force in 28 states. These laws force unions to represent all employees in a unionized workplace without forcing them to pay union dues, a cynical ploy to deprive unions of financial resources.
Weil appeared at his confirmation hearing alongside Gwynne A. Wilcox and David Prouty, two labor attorneys nominated for seats on the National Labor Relations Board. They were all faced with grills determined by the GOP members of the committee, but Weil was the center of attention. Committee votes on nominations could take place as early as Wednesday.
The fear most often expressed by the business lobby is that Weil would implement many provisions of the PRO Law through regulatory measures.
“Weil has passed the noxious PRO Act, and the IFA fears it is attempting to bypass Congress and pass its most damaging elements through a regulatory executive order,” Michael Layman told Hill, spokesperson for the International Franchise Association.
A common thread in the anti-Weil criticism is that he is an unelected bureaucrat who has never encountered a payroll. This is a familiar column for attacks on government officials doing the job for which they were appointed.
Florida Governor Ron DeSantis invoked it in a recent fundraising appeal, calling Dr Anthony Fauci an “unelected career bureaucrat” trying to deprive Americans of their liberty by advocating for mask wear and social distancing. to defeat the pandemic.
For example, Senator Richard Burr, RN.C., a leading member of the Senate committee reviewing Weil’s appointment, began by saying, “Before Congress, I worked for a living. It’s true that before coming to Washington, Burr spent 17 years as a salesperson. But he’s been in Congress and the Senate for 25 years.
Weil carefully disarmed this stupid attempt to portray him as an academic with his head in the clouds. At the Ministry of Labor, he noted, he ran an agency division with a budget of $ 235 million and 2,000 employees, and at Brandeis, he runs an institution with a budget of $ 32 million and 200 full-time employees. “I think the characterization of my experience is a bit offbeat,” he said.
Let’s take a closer look at Weil’s approach to workers’ rights.
In the Wages and Hours division, he was responsible for a regulation that doubled the eligibility threshold for overtime pay to $ 47,476 in earnings per year, adding an estimated 4 million workers to the ranks of those who are entitled to a rate and a half. pay for work more than 40 hours per week. Trump reduced that figure to $ 35,568, removing about 2.8 million workers from the overtime ranks.
“Employers are concerned that this wage threshold will be increased below Dr Weil,” the Chamber of Commerce said.
Weil also strongly opposed the use of subcontractors to conceal employer-employee relationships, thereby relieving major employers of workers’ responsibility.
As he observed in an article last year, this variety of outsourcing concentrates labor costs on increasingly smaller and less profitable subcontractors, so that “the incentives to cut roundabouts are increasing, leading to violations of our core labor and employment standards ”.
The response was an effort during the Obama years to solidify “co-employer” standards, requiring that the ultimate employer share the costs and responsibility of its workers.
Weil kept a close eye on the subterfuge companies used to pretend they weren’t really “employers” of their workers, for example by claiming that workers are only “independent contractors”. This claim absolved them from paying benefits, such as minimum wage, overtime, unemployment insurance and workers compensation.
To see this scam in action, just look at Proposition 22, the 2020 California ballot measure that Uber and his fellow employers drafted. Companies spent more than $ 200 million, an unprecedented amount, to adopt the initiative, which relegated their drivers and delivery people to permanent employment in the name of “freedom” and “flexibility.” .
Once adopted, companies began to systematically reap the benefits that workers thought they would derive from Proposal 22.
Weil has gained a reputation as an enemy of Uber, Lyft, and other gig companies trying to cut costs for their workers. It was well deserved. In an editorial for The Times in the run-up to the Proposition 22 campaign, he acknowledged that some employer-employee relationships could fall into a gray area, making it difficult to determine whether workers were contractors or employees. .
“Uber and Lyft are not among those near-gray cases,” he wrote. “Their status as an employer is really very clear.”
The business lobby generally describes its reluctance against classifying employers as “protecting the right to be a worker in concert”. This transparent dodging conveniently overlooks the power imbalance in the employer-worker relationship, which is heavily tilted because it is in favor of the former.
Such a discourse on workers’ rights in this context was memorably deconstructed by Harold Ickes, a close associate of Franklin D. Roosevelt (and a Republican in the days when one could be a Republican and a Liberal). Ickes described a 1936 Supreme Court ruling overturning a minimum wage law in New York City in a case brought by laundressers as defending “the sacred right … of an immature child or helpless woman to bargain with a big company “.
Weil took action to strengthen the rules on when a worker should be considered an employee. The chamber complained that this was causing “confusion and uncertainty” among employers trying to determine how to classify their workers. But it’s a joke: Despite the limited gray areas Weil mentioned, companies almost always know very well when their employees deserve benefits. They just don’t want to pay them.
The effort to reorient all government employment agencies – the Department of Labor and the National Labor Relations Board are the most important, but not the only such agencies – is a work in progress.
But Weil’s confirmation, along with Wilcox and Prouty’s confirmation, will move the process forward intelligently. Claims by the business lobby that they are pro-worker are the best endorsement imaginable.
Michael Hiltzik is a columnist for the Los Angeles Times.
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