Mr. Weil’s nomination constitutes a shameless sop to the radical political left, Big Labor bosses and academia. It’s more directly an outright attack on small businesses, especially franchisees, and a gig economy that has brought incalculable new benefits to consumers and workers.

Tweet

President Biden, in one of his administration’s most potentially perilous assaults yet upon the nation’s small businesses, job market and economy, has nominated Brandeis University dean and professor David Weil to head the Department of Labor’s critically important Wage & Hour Division, the federal agency primarily responsible for enforcing the nation’s labor laws.  

Mr. Weil’s nomination constitutes a shameless sop to the radical political left, Big Labor bosses and academia. It’s more directly an outright attack on small businesses, especially franchisees, and a gig economy that has brought incalculable new benefits to consumers and workers.  

Franchisees account for approximately 750,000 businesses across America, and fully 7.6 million jobs.  Mr. Weil, however, sanctimoniously considers franchising little more than “a form of outsourcing.”  Weil remains a chief proponent of what’s known as the “Joint Employer Rule,” which he helped advance in the Obama Administration and would reverse decades of established labor law by holding businesses liable and responsible for employees of franchisees whom they didn’t hire and over whom they exercise no control.  

Under longstanding legal precedent and National Labor Relations Board (NLRB) interpretation, an “employer” for purposes of applying the nation’s labor laws is generally defined to include only those businesses that determine the essential terms and conditions of employment.  In a typical franchisor/franchisee relationship, the franchisee determines whom to hire, whom to fire, wages and other everyday working conditions, not the franchisor. That’s why the U.S. Supreme Court itself affirmed that only businesses exercising control over “those matters governing the essential terms and conditions of employment” were subject to collective bargaining requirements and liabilities.   

The NLRB formally adopted that same standard, concluding that “there must be a showing that the employer meaningfully affects matters relating to the employment such as hiring, firing, discipline, supervision and direction.”  That stands to reason, since it makes no sense to impose legal liability upon employers that don’t actually control a bargaining unit’s employment conditions.  

Mr. Weil, however, favors a radical redefinition that would suddenly allow multiple businesses to be held legally liable for the same set of employees, whereby employers with indirect or even merely potential ability to affect employment terms could suddenly find themselves subject to federal labor laws.  

On another critical issue, Mr. Weil seeks to target the gig economy by forcibly reclassifying nearly 60 million freelance independent contractors such as part-time drivers and writers as formal “employees,” which would have far-ranging catastrophic effects.  Gig workers themselves prefer independent contractor status for its obvious advantages, including setting their own hours and working when it’s most convenient for them and their families.  Gig workers can even work simultaneously for different and competing companies offering the same service.  The work they prefer can put food on the table for furloughed or laid-off workers, and it can provide additional income for people who spend their time in other paid or unpaid pursuits such as musicians or artists or homemakers.  

Because the National Labor Relations Act and antitrust laws prohibit unionization of independent contractors, however, people like Mr. Weil hate it and seek to forcibly reclassify gig workers as formal employees.  In turn, that would end worker flexibility in terms of hours, which days to work and other aspects of job performance that they now choose for themselves.  But to Mr. Weil, that’s unimportant compared to boosting unions whose membership numbers continue to plummet, thereby reducing the dollars they can contribute to leftist election campaigns.  

Mr. Weil also works to nullify right-to-work laws that prevail in 27 states, which have resulted in superior employment and business atmospheres, as well as union representation elections that would abolish secret ballot voting.  

It’s easy for Mr. Weil, who as The Wall Street Journal noted is a “lifelong, left-wing academic with labor union sympathies, no private-sector experience or legal training and limited management experience” to favor such destructive public policies.  But for the tens of millions of Americans whose jobs, businesses and consumer benefits would be negatively impacted by Mr. Weil’s policies, it’s a much more critical – and personal – matter. 

David Weil’s nomination is far outside of the mainstream and should be rejected by the U.S. Senate. 

Timothy Lee is Senior Vice President of Legal and Public Affairs at the Center for Individual Freedom (CFIF).  Prior to joining CFIF, Mr. Lee practiced labor and employment law at some of the nation’s most preeminent law firms.