Labor Department’s Weil Hopes Successor Enforces Wage Law

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By Ben Penn

The outgoing administrator of the Labor Department’s Wage and Hour Division isn’t ready to draw conclusions about how his agency will be reorganized when the Republican Party takes control, but he said a passive enforcement approach would concern him.

“One can have a different balance of enforcement versus guidance and compliance, and certainly over the history of this agency and this department, that has varied across party lines,” David Weil told Bloomberg BNA in a Dec. 21 interview.

But a new administration would be “at peril” if it thought the job could be done by guidance and partnership alone, said Weil, who will soon return to his previous job as an economics professor at Boston University. “Enforcement remains an important part of anyone’s toolbox because there are irresponsible employers out there,” he said.

Weil, who was sworn into office nearly three years ago, said his re-entry to academia doesn’t mean he’s walking away from the wage-and-hour arena. “I’m certainly going to be very much engaged in these issues,” he said.

Plaintiffs’ Bar Carrying the Torch?

Time will tell whether exiting the public sector means Weil may partner with worker advocates, unions and plaintiffs’ attorneys to ensure that workers’ minimum wage and overtime rights are protected. He said those groups have a heightened responsibility if the WHD shifts to a laxer enforcement routine.

The plaintiffs’ bar and other worker advocates already play an important part in ensuring labor standards, Weil said. That’s particularly true for employees who are vulnerable to employer retaliation.

Weil said advocates and the WHD have worked hard to give employees the courage to file complaints against their employers. If in a future DOL there’s “a stepping away from agencies doing what is in their regulatory responsibility, that role becomes all the more important” for nongovernmental parties, he added.

Trump, Puzder Could Change Direction

President-elect Donald Trump’s DOL landing team has been meeting with career staff and political leaders for weeks behind closed doors. Thus far the next administration’s policy preferences for the WHD and the department as a whole remain under wraps.

But Trump’s anti-regulatory stance and his selection of fast-food executive Andrew Puzder for labor secretary are expected to bring a much different vision to the WHD. More efforts to help employers comply with wage-and-hour laws, rather than punishing them for noncompliance, are likely on the horizon, attorneys predict.

Obama administration labor officials, including Weil, have been criticized by some employer associations for being too friendly with labor unions and creating an overly complex regulatory environment that doesn’t appreciate the hurdles of running a business.

Weil said he knows that well-meaning businesses can break the law unintentionally.

“I totally agree with the notion that there are employers out there who just aren’t clear on what they’re supposed to do,” he said. “That’s where you use broad guidance, that’s where you use outreach.”

The WHD has conducted 18,000 outreach events over the past eight years to help employers comply, Weil said. “We have done more robust outreach as an organization in our eight years than I would argue prior administrations have done in theirs,” he said.

Misclassification Still `Prevalent.’

Weil oversaw strategic enforcement initiatives that are now in limbo and could be withdrawn by a new administrator. That includes efforts to combat the misclassification of workers as independent contractors.

He coordinated with state labor agencies to try to root out misclassification. The goal was ensuring that workers got the workplace protections, such as overtime pay and benefits, provided to full-fledged employees, he said.

But the effort has only begun, Weil observed.

“This is a prevalent problem; it’s one I think we have highlighted, it’s one I think we have gotten traction on, but it is one I think will persist into the future,” he said.

It’s been speculated that the next WHD could step away from the issue. The division could rescind Weil’s administrator’s interpretation stating that most workers should be classified as employees, not independent contractors, under the Fair Labor Standards Act.

The wage and hour chief said the erosion of workers’ rights caused by misclassification is understood by people on both sides of the aisle. The agency has signed memorandums of understanding with 35 states—with a 36th state on the way—that deal with the independent contractor topic, Weil said.

“Many of the recent ones have been in red states,” Weil said, including the MOU that will be announced imminently.

To contact the reporter on this story: Ben Penn in Washington at bpenn@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.

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