Forward to the past: David Weil nominated to return to WHD

In a widely anticipated but nonetheless controversial move, President Joe Biden nominated David Weil to be the administrator of the Wage and Hour Division (WHD) of the Labor Department. Weil will assume responsibilities for advancing the administration’s efforts to expand the definition of “employee” to bring more independent contractors, especially “gig-workers,” under the broad protections of labor and employment laws. A highly contested confirmation is expected.

Independent contractor

Although Weil brings experience and knowledge to the post, his nomination is something of “red flag” to the business community and its supporters in Congress. As WHD administrator during the Obama administration, Weil issued an advisory opinion that espoused an expansive view of the Fair Labor Standards Act (FLSA) and strongly advocated the “economic realities” test for classification disputes.

The result of Weil’s views would be to “convert” many, even most, independent contractors into employees. Such an approach would affect not just “gig” companies such as Uber, Lyft, and Door Dash, but also many other business sectors that increasingly use independent contractors.

Joint employer

Weil’s focus on the use of multiple layers of subcontractors, in what he has termed “the fissured economy,” is part of DOL’s new worker- and union-friendly position on the joint-employer issue. New regulations on this volatile issue are pending.