Controversial Pick for Wage & Hour Chief Nears Confirmation as DOL Explores Expanding Overtime Eligibility

By Greg Hoff posted 01-21-2022 10:45


David Weil, President Biden’s nominee for Wage and Hour Administrator, was surprisingly voted out of the Senate HELP committee last week, moving him one step closer to confirmation amidst a push by DOL to raise the salary threshold for non-exempt employees.

Originally nominated by President Biden last spring, Weil's nomination stalled after a December tie vote along party lines forestalled approval by the Senate HELP Committee. However, in a new vote last week, the Committee voted 11-10, with Sen. Rand Paul (R-KY) absent, to move Weil’s nomination to a full Senate confirmation vote. Given the Democrats’ slim majority in the Senate (with Vice President Harris serving as a tiebreaker), Weil's confirmation will require a unanimous Democratic vote and Sen. Joe Manchin (D-WV) previously expressed concerns over the nomination.

Weil served as Wage and Hour chief in the Obama administration, during which he made extensive use of investigatory authority to target employers’ use of independent contractors. Weil is an avowed critic of gig companies such as Uber and Lyft and their use of independent contractors. He has also sought expansion of joint employer liability, particularly in franchising operations.

Meanwhile, DOL is expected to issue a proposed rule this spring regarding overtime and minimum wage exemptions under the Fair Labor Standards Act. The Department will likely increase the current salary threshold (currently roughly $35,000) to determine which employees are exempt from overtime and minimum wage requirements under the FLSA. Congressional Democrats, including Rep. Bobby Scott (D-VA), have called for DOL to increase the threshold to over $80,000 by 2026. A new threshold, regardless of the level of increase, could force employers to reclassify large numbers of employees subject to overtime (non-exempt).

New federal contractor online registry system requires attention.  Separately, the Office of Federal Contract Compliance Programs (OFCCP) announced that by June 30, 2022, existing federal contractors must certify they have developed and maintain an Affirmative Action Program for each covered establishment.

Outlook: If Weil is confirmed, employers can expect a Wage and Hour Division that will make aggressive use of its investigation and enforcement authority, particularly against establishments with widespread use of independent contractors. Employers should also watch for DOL’s forthcoming FLSA overtime rule, which could have significant implications for workforce and compensation structures.