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Senate HELP Committee Hearing of Nominee Jessica Looman for Administrator of the Wage and Hour Division in the Department of Labor

Senate Health, Education, Labor, & Pensions Committee                                        

Nomination of Jessica Looman to be Administrator,

Wage and Hour Division, Department of Labor

Tuesday, September 13, 2022

Topline

  • The hearing focused on the Protecting the Right to Organize Act (PRO Act), gig economy, worker classification, wage theft, and noncompete agreements.
  • Senator Mike Braun (R-Ind.) said the PRO Act is not going to make it through the Senate.
  • Jessica Looman stated that the Wage and Hour Division does not have the authority to adopt by regulation the ABC test unless Congress gives it the authority to do so.

Witnesses

Opening Statements
Senator Tina Smith (D-Minn.)

In her opening statement, Smith discussed Looman’s services at the Department of Labor since January 2021 and the role of Administrator within the Hour and Wage Division.

Senator Mike Braun (R-Ind.)

In his opening statement, Braun discussed small businesses and highlighted the burden the federal government can put on small businesses through regulations. He said the federal government must not discourage entrepreneurship. He concluded by discussing his concern that the White House is trying to circumvent Congress to implement portions of the Protecting the Right to Organize Act (PRO Act) which would interfere with what drives the economy. 

Testimony

Jessica Looman, Principal Deputy Administrator, Department of Labor

In her testimony, Looman discussed her previous positions prior to coming to the Department of Labor and said it is critical that labor and management partner together to advocate for infrastructure investments to expand diversity and inclusion. She also said helping employers understand the law is a key part to helping businesses, employees, and working families thrive in the American economy. She concluded by stating that if she is confirmed, she is committed to stopping wage and hour violations from happening through education and compliance. 

Question & Answer

Protecting the Right to Organize Act (PRO Act)

Braun noted that the PRO Act is not going to make it through the Senate and asked Looman if the Department of Labor has the authority or get involved with making rules to expand the joint employer standard or determining who is an independent contractor by using the ABC test. Looman said the PRO Act is very much supported by President Biden. She said her Division looks at enforcing the Fair Labor Standards Act which means they do look at issues related to the employer and employee relationship as it impacts whether workers are earning overtime pay under the law. She stated that the Wage and Hour Division does not have the authority to adopt by regulation the ABC test unless Congress says so, however, the Division does have the responsibility of ensuring workers are not misclassified as independent contractors which is very much a current focus of theirs determining it on a case-by-case bases but not utilizing the ABC test. Senator Tommy Tuberville (R-Ala.) asked if the time for further regulations of construction workers is now. Looman said it is important that employees are making the wages they are entitled to under the law and that responsible employers can compete in the marketplace.

Gig Economy

Braun asked what Looman’s thoughts were on the gig-economy and how the division intends to navigate this class of workers. Looman said the way individuals are employed is determined on a case-by-case basis, adding that the Division reviews each case to determine if there have been any violations of the Fair Labor Standards Act.

Worker Classification

Senator John Hickenlooper (D-Colo.) asked Looman how she intends to address worker misclassification. Looman stated that she intends to work with states to ensure the Department is providing the best worker protections as possible. She emphasized that the relationships between local governments, states, and the Department is important and if confirmed she will continue to prioritize those relationships.

Wage Theft

Smith asked why it is important to listen to everyone when making policy. Looman said in order to have an effective labor standard, the government must recognize that it is protecting working people and helping serve employers. She added that the goal is always to prevent wage and hour violations. Smith asked what Looman will do to combat wage theft. Looman said wage theft is a critical issue and discussed the amount of money the division has recovered for employees. Braun asked if the Department is considering the threshold for overtime exemptions and what Looman thought the threshold should be. Looman said overtime is one of the most important issues her division is looking at but would not comment on where the threshold should be. Senator Robert Casey (D-Pa.) asked how Looman will consider the emerging workplace technologies as it relates to workers’ rights and worker protections. Looman said the issue will continue to be a priority of her Division as it relates to thinking about ways workers may be deprived of their protections under the Fair Labor Standards Act.

Non-Compete Agreements

Senator Chris Murphy (D-Conn.) asked what role the Wage and Hour Division play can in reducing non-compete agreements. Looman said the Division is concerned about issues that impact workers advancing in their career and suffering retaliation from their previous employer, adding that the Division works with employers to help them determine what could be retaliation and help them prevent those situations. She noted non-compete agreements can sometimes have a chilling effect.

For more information on this hearing, please click here.

For an archive of past SIFMA hearing coverage, please click here.