Seyfarth Synopsis: On March 30, 2022, the Senate voted down a cloture motion to advance the nomination of Dr. David Weil to return as U.S. DOL Wage and Hour Division (“WHD”) Administrator. This public rebuke - made possible by the defection of Democratic Senators Manchin, Sinema, and Kelly - leaves WHD without a politically-appointed leader for the foreseeable future. The Biden Administration will need to go back to the drawing board to identify an alternative nominee who is palatable to moderate Democrats, as the party faces down uncertain prospects in the upcoming November midterms.

While perhaps not so terrifying as the Eye of Sauron, the potential enforcement gaze of Dr. David Weil motivated employers to lobby against another round of his leadership at WHD. Dr. Weil has been a consistently outspoken critic of the gig economy, and he believes most workers should be viewed as employees, rather than classified as independent contractors.

With the economy continuing to claw its way back from the pandemic-related downturn, employers engaged in significant efforts to keep Dr. Weil from returning to the office he occupied during the Obama Administration (which, incidentally, has a magnificent view of the Capitol). These efforts were rewarded when Senators Manchin, Sinema, and Kelly crossed the aisle to stop Dr. Weil’s nomination in its tracks. Days later, Dr. Weil formally withdrew from consideration.

Administrations prioritize avoiding such public failings when it comes to their nominees, so we can infer that these “no” votes came as something of a shock to President Biden; indeed, prior scuttled Biden nominees withdrew before landing on the Senate floor. Of course, Senator Manchin expressed reservations about Dr. Weil previously, and Senator Sinema sits toward the conservative end of the Senate Democrat spectrum, so Senator Kelly’s lack of support was likely the most difficult to foresee.

The next step for President Biden is to lick his wounds and identify a new nominee to lead an agency at the forefront of numerous Administration priorities. Beyond the gig economy and alleged worker misclassification, WHD is involved in significant rulemakings (e.g., Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees; and Modernizing the Davis-Bacon and Related Acts Regulations), and is working to staff up to execute its enforcement obligations. Jessica Looman has not appeared hindered by her “Acting” title, but lacking the political heft of Senate confirmation at the top of the organizational chart tends to limit what a government agency can accomplish. Dr. Weil’s many fans within DOL likely feel some level of demoralization resulting from this outcome as well.

Senate Democrats’ razor-thin majority may not survive midterms, so it could be that WHD remains without a confirmed Administrator for some time to come. Employers should continue to monitor this leadership void because it will impact WHD’s policy-making and enforcement efforts under the Biden Administration.