I have commented, as many others, that the Biden USDOL will be far more employee friendly and protective of employee rights. More proof has arrived. The President has nominated David Weil to be the head official at the Wage Hour Division where he will wield tremendous influence on how the very nuanced Fair Labor Standards Act is interpreted and enforced. Weil had the same role in the Obama administration.

Rep. Bobby Scott, D-Va., the Chair of the Committee on Education and Labor, lauded the selection, asserting that “the Biden-Harris administration’s nomination of Dr. David Weil signals that USDOLworkers can expect the [DOL] will have their backs at this critical moment in time.” Another worker advocate stated that his group, the National Employment Lawyers Association, looks forward to partnering with Mr. Weil. He opined that “robust DOL partnerships with attorneys fighting to protect workers’ rights are essential to address fissured work arrangements like subcontracting, temporary staffing and gig work, all of which disproportionately harm women and people of color.”

Weil’s reputation precedes him. While working for President Obama, he engineered the use of data to launch enforcement actions against flagrant violators. He also advocated expanding the reach of the joint employer doctrine and restricting the use of independent contractors by taking an overly inclusive view of who are “employees.”

The Biden Administration will replace the Trump-era rules that it rescinded. Moreover, Mr. Weil has some novel theories about worker classification, as he has espoused these last few years. He proposes thinking of work and workers in “concentric circles.” This means a three-tiered structure geared towards fundamental protections, such as unsafe conditions, discrimination/harassment, and nonpayment. A second tier ostensibly covers issues such as collective bargaining and regulatory benefits, e.g. workers’ compensation, UI benefits.

The Takeaway

The pro-business, common sensical and reasoned approach by Cheryl Stanton, the former Administrator, is now gone. We will see a huge shift in emphasis along the lines of misclassification and alleged interrelations between entities for purposes of liability. Further, the positions this Administrator may take on inclusions and exclusions from overtime, and perhaps commission and 7(i) issues, may make conditions favorable for thousands of newly overtime eligible employees.

But, these things can still be planned for…