Authored by Alex Passantino
Today, for the first time in a decade, the Wage & Hour Division has a Senate-confirmed Administrator. In last night’s 51-42 vote, the Senate confirmed Dr. David Weil as the Administrator of the U.S. Department of Labor’s Wage and Hour Division. Dr. Weil previously was Professor of Markets, Public Policy and Law and the Everett W. Lord Distinguished Faculty Scholar at Boston University School of Management. He also served as Senior Research Fellow and Co-Director of the Transparency Policy Project at the Kennedy School of Government at Harvard University.
In his testimony before the Senate Health, Education, Labor, and Pensions Committee last year, Dr. Weil stated that, in his view “a fundamental role of the Wage and Hour Administrator is making sure that the laws entrusted to the agency are administered efficiently, effectively, fairly, transparently, and rigorously.” He then went on to explain what that meant to him. He noted WHD’s “limited resources” and the need for prioritization, which “requires establishing clear measures of workplace problems.” He focused on the need to ensure that the wide range of tools available to WHD in its enforcement is used appropriately. He also expressed the need to treat employers who comply with the law in a fair manner, and stressed his desire to bring transparency to WHD’s relationships with all stakeholders. And, he noted the importance of continuous evaluation of WHD’s initiatives.
The precise contours of what Dr. Weil will implement in his tenure at WHD remain to be seen. From a regulatory perspective, he inherits a full plate, with WHD rules expected on the Part 541 exemptions, the Executive Order increasing the minimum wages to be paid to employees on certain government contracts, and the implementation of U.S. v. Windsor under the FMLA (which was submitted to OMB for review earlier this week).
On the enforcement side, Dr. Weil will almost certainly seek to continue WHD’s fissured industry initiative, which was largely based upon a report in which Dr. Weil served as Principal Investigator: Improving Workplace Conditions through Strategic Enforcement: Report to the Wage and Hour Division. That report identifies several “priority industries”: eating and drinking—limited service/full service, hotel/motel, residential construction, janitorial services, moving companies/logistics providers, agricultural products, landscaping/horticultural services, health care services, home health care services, grocery stores, and retail trade. Within those industries, Dr. Weil states that:
WHD should pursue strategies that focus at the top of industry structures, on the companies that affect how markets operate and many of the incentives that ultimately affect compliance. This starts with having a clear “map” of how priority industries operate and how that results in employer behavior. It then requires putting in place coordinated investigation procedures built around related business entities rather than individual workplaces and using those regulatory tools (from persuasion and education to the use of penalties, hot goods provisions, and other legal tools) to craft comprehensive agreements.
The report suggests the establishment of industry-specific strike forces that could investigate a “problematic brand,” properties of a large owner, or properties of a specific hotel management company, for example. Such strike forces would – according to the report – target a pre-selected employer for investigations around the same time, with media and internet releases announcing the start of the strike force as well as its results. The report also suggests revisiting WHD’s long-standing policy of pre-scheduling investigations, indicating a preference for unannounced investigations (to prevent “unscrupulous employers [from] intimidat[ing] and/or coach[ing] employees prior to the WHD visit”). Finally, the report contains a favorable viewpoint on hot goods TROs, liquidated damages, and civil money penalties.
None of this means that Dr. Weil will implement these policies. But we have a pretty clear understanding of what he will be considering as he begins his tenure as the WHD Administrator.