Seyfarth Synopsis: The long wait for a Senate-confirmed U.S. DOL Wage and Hour Division (“WHD”) Administrator is over!
As of October 25, 2023, Jessica Looman has ascended to the top role in one of the Department’s premier enforcement agencies, winning confirmation 51-46. Operating as Principal Deputy Administrator since January 20, 2021, Ms. Looman’s WHD was active even before she landed the big chair – and a great Capitol view from the Administrator’s Office – by, e.g., “modernizing” the Division’s Davis-Bacon regulations. Now Ms. Looman has the political gravitas of Senate confirmation behind her as she continues to spearhead rulemaking efforts on independent contractor classification and overtime exemptions, as well as enforcement initiatives like battling child labor abuses.
Historically, presidential administrations have found it difficult to get their Administrator nominees approved, as stakeholders express significant interest in a role tasked with overseeing thorny issues like minimum wage, overtime, tipped work, and employee classification. Ms. Looman did not engender the same level of resistance as President Biden’s initial Administrator nominee, Dr. David Weil, who served in the same role during the Obama Administration. Dr. Weil was unable to secure the votes of Democratic Senators Joe Manchin, Mark Kelly, and Kyrsten Sinema (a Democrat at the time, now rebranded as an Independent), but Ms. Looman received support from all three. She even collected a “Yea” vote from Republican Senator Dan Sullivan, making her confirmation bipartisan.
At the time of Ms. Looman’s nomination, the International Franchise Association (“IFA”) released a statement “congratulat[ing] Jessica Looman on her nomination to be Administrator of the Wage and Hour Division at the Department of Labor,” and noting “[i]n recent weeks, our members have had productive conversations with Acting Administrator Looman about the essential role that franchising plays in our economy and why it is critical that the Department of Labor serves to enforce existing law rather than create new policy.” July 27, 2022 IFA Statement on Nomination of Jessica Looman to Labor Department Wage and Hour Division. Further, IFA indicated it “look[ed] forward to working together” with Ms. Looman. Id.
Not everyone is a fan, however, and Ms. Looman will undoubtedly face headwinds in her confirmed role. For example, responding to Ms. Looman’s nomination, and opining on her union background, House Education and Labor Committee Chair Virginia Foxx commented:
Under an “Administrator Jessica Looman,” we can expect to see more of the same bureaucratic antics that have plagued Biden’s WHD since the beginning. Under Looman’s tenure, we’ve already seen the WHD undercut the Trump administration’s independent contractor rule, implement more burdensome regulations under the Davis-Bacon Act, and end compliance assistance, including the PAID program. As a former union official, Jessica Looman will likely keep the WHD’s bar incredibly low while throwing workers, employers, and independent contractors under the bus.
Congresswoman Foxx also recently made clear her displeasure with the Department’s and Division’s insistence that the comment period on the notice of proposed rulemaking, “Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales, and Computer Employees,” remains at 60 days. Along with this kind of congressional pushback, Ms. Looman must keep navigating the turbulent waters of enforcement staff attrition, which will likely limit WHD’s ability to execute on its various, competing priorities.
Going forward, though, Administrator Looman will face such challenges wearing the badge of Senate confirmation. For more on this or any related topic, please do not hesitate to connect with the author or your favorite member of Seyfarth’s Wage and Hour Practice Group.