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S. 4738, Worker Flexibility and Small Business Protection Act

Summary

S. 4738, the Worker Flexibility and Small Business Protection Act of 2020, was introduced in the Senate on September 24, 2020 by Mrs. Murray (for herself and Mr. Brown). Its stated purposes are to provide a right to flexibility, to broaden and increase employee protections at work, to protect small businesses through shared responsibility for workers' rights, and to provide public transparency on workers' rights violations. Section 101 amends the Fair Labor Standards Act of 1938 to give a covered employee, an employee classified by the employer as an independent contractor before enactment, the right to maintain the same schedule and scheduling flexibility, and bars discharge except upon a showing of just cause.

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Bills Bills 116S4738Is Bills 116S4738Is
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Bills Bills 116S4738Is Bills 116S4738Is

Cite this document

“S. 4738, Worker Flexibility and Small Business Protection Act.” Original at www.govinfo.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/bills-bills-116s4738is-bills-116s4738is/, SHA-256 e6c367a156068aa0af62a592a5443fec44d13420476c531712eb125c81ec6097.

Full text

                                                                                                                                                                        II




                                                                     116TH CONGRESS
                                                                        2D SESSION
                                                                                                             S. 4738
                                                                     To provide a right to flexibility and to broaden and increase employee protec-
                                                                         tions at work, to protect small businesses through shared responsibility
                                                                         for workers’ rights, to provide public transparency on workers’ rights
                                                                         violations, and for other purposes.




                                                                                 IN THE SENATE OF THE UNITED STATES
                                                                                                SEPTEMBER 24, 2020
                                                                     Mrs. MURRAY (for herself and Mr. BROWN) introduced the following bill;
                                                                         which was read twice and referred to the Committee on Health, Edu-
                                                                         cation, Labor, and Pensions




                                                                                                               A BILL
                                                                     To provide a right to flexibility and to broaden and increase
                                                                        employee protections at work, to protect small businesses
                                                                        through shared responsibility for workers’ rights, to pro-
                                                                        vide public transparency on workers’ rights violations,
                                                                        and for other purposes.

                                                                       1               Be it enacted by the Senate and House of Representa-
                                                                       2 tives of the United States of America in Congress assembled,
                                                                       3     SECTION 1. SHORT TITLE.

                                                                       4               This Act may be cited as the ‘‘Worker Flexibility and
                                                                       5 Small Business Protection Act of 2020’’.




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                                                                       6     SEC. 2. TABLE OF CONTENTS.

                                                                       7               The table of contents for this Act is as follows:

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                                                                             Sec. 1. Short title.
                                                                             Sec. 2. Table of contents.

                                                                                 TITLE I—RIGHT TO FLEXIBILITY AND EMPLOYEE PROTECTIONS
                                                                                                        AT WORK

                                                                             Sec. 101. Right to flexibility.
                                                                             Sec. 102. Right to employee protections at work.

                                                                                  TITLE II—SMALL BUSINESS PROTECTION THROUGH SHARED
                                                                                           RESPONSIBILITY FOR WORKERS’ RIGHTS

                                                                             Sec. 201. General shared responsibility for workers’ rights.
                                                                             Sec. 202. Massive corporations.
                                                                             Sec. 203. Franchisors.
                                                                             Sec. 204. Temporary staffing companies.
                                                                             Sec. 205. Licensors.
                                                                             Sec. 206. Labor contractors.
                                                                             Sec. 207. Supply chain responsibility plan.
                                                                             Sec. 208. Conforming amendments.

                                                                                    TITLE III—PUBLIC TRANSPARENCY ON WORKERS’ RIGHTS
                                                                                                        VIOLATIONS

                                                                             Sec. 301. Consumer right to know about compliance with workers’ rights.

                                                                                     TITLE IV—CREATING BROAD AND INCREASING WORKER
                                                                                                      PROTECTIONS

                                                                             Sec. 401. General standards for applying and interpreting workers’ rights.
                                                                             Sec. 402. Statutes of limitation.

                                                                                                         TITLE V—GENERAL PROVISIONS

                                                                             Sec. 501. Severability.

                                                                       1 TITLE I—RIGHT TO FLEXIBILITY
                                                                       2    AND   EMPLOYEE   PROTEC-
                                                                       3    TIONS AT WORK
                                                                       4     SEC. 101. RIGHT TO FLEXIBILITY.

                                                                       5               (a) IN GENERAL.—The Fair Labor Standards Act of
                                                                       6 1938 (29 U.S.C. 201 et seq.) is amended—
                                                                       7                        (1) by inserting after section 7 (29 U.S.C. 207)
                                                                       8               the following:




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                                                                       9     ‘‘SEC. 8. RIGHT TO FLEXIBILITY.

                                                                     10                ‘‘(a) DEFINITIONS.—In this section:

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                                                                       1                        ‘‘(1) COVERED EMPLOYEE.—The term ‘covered
                                                                       2               employee’ means, with respect to an employer, an
                                                                       3               employee who—
                                                                       4                                 ‘‘(A) prior to the date of enactment of the
                                                                       5                        Worker Flexibility and Small Business Protec-
                                                                       6                        tion Act of 2020, was classified by the employer
                                                                       7                        as an independent contractor; and
                                                                       8                                 ‘‘(B) in any workweek is engaged in com-
                                                                       9                        merce or in the production of goods for com-
                                                                     10                         merce, or is employed by an enterprise engaged
                                                                     11                         in commerce or in the production of goods for
                                                                     12                         commerce.
                                                                     13                         ‘‘(2) SCHEDULE                      AND         SCHEDULING              FLEXI-

                                                                     14                BILITY.—The               term ‘schedule and scheduling flexi-
                                                                     15                bility’, with respect to the work of a covered em-
                                                                     16                ployee under subsection (b), includes—
                                                                     17                                  ‘‘(A) the timing of the work throughout an
                                                                     18                         hour, day, week, month, or year;
                                                                     19                                  ‘‘(B) the total duration of the work in any
                                                                     20                         given period;
                                                                     21                                  ‘‘(C) the location where the work is per-
                                                                     22                         formed; and
                                                                     23                                  ‘‘(D) the ability to perform work for any
                                                                     24                         entity other than the employer of the covered



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                                                                       1                        employee, including any direct competitor of the
                                                                       2                        employer.
                                                                       3               ‘‘(b) RIGHT TO KEEP FLEXIBILITY.—
                                                                       4                        ‘‘(1) IN GENERAL.—Any covered employee of
                                                                       5               an employer has the right to maintain the same
                                                                       6               schedule and scheduling flexibility that the covered
                                                                       7               employee possessed at any time while performing
                                                                       8               labor for such employer as an independent con-
                                                                       9               tractor in the 12-month period prior to the date of
                                                                     10                enactment of the Worker Flexibility and Small Busi-
                                                                     11                ness Protection Act of 2020.
                                                                     12                         ‘‘(2) DURATION                      OF RIGHT.—A                   covered em-
                                                                     13                ployee shall continue to possess the right to main-
                                                                     14                tain the same schedule and scheduling flexibility de-
                                                                     15                scribed in paragraph (1) for the duration of the em-
                                                                     16                ployment of the covered employee with the employer.
                                                                     17                         ‘‘(3) NONRETALIATION.—
                                                                     18                                  ‘‘(A) IN GENERAL.—An employer of a cov-
                                                                     19                         ered employee—
                                                                     20                                          ‘‘(i) may not discharge the covered
                                                                     21                                  employee for any reason except upon a
                                                                     22                                  showing of just cause; and
                                                                     23                                          ‘‘(ii) may not otherwise discriminate
                                                                     24                                  against the covered employee because of or



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                                                                       1                                 with relation to the schedule or scheduling
                                                                       2                                 flexibility of the employee.
                                                                       3                                 ‘‘(B) DISCRIMINATION.—For the purposes
                                                                       4                        of subparagraph (A)(ii), the term ‘discriminate’,
                                                                       5                        with respect to a covered employee, shall in-
                                                                       6                        clude—
                                                                       7                                         ‘‘(i) reducing the amount or number
                                                                       8                                 of hours of work of the covered employee;
                                                                       9                                         ‘‘(ii) restricting or limiting the work
                                                                     10                                  of the covered employee for the employer;
                                                                     11                                  or
                                                                     12                                          ‘‘(iii) removing the covered employee
                                                                     13                                  from the workplace, including by sus-
                                                                     14                                  pending or deactivating an account the
                                                                     15                                  covered employee uses to perform work for
                                                                     16                                  the employer.
                                                                     17                                  ‘‘(C) MOTIVATING FACTOR.—For the pur-
                                                                     18                         poses of subparagraph (A)(ii), unlawful dis-
                                                                     19                         crimination is established when a covered em-
                                                                     20                         ployee demonstrates that the schedule or sched-
                                                                     21                         uling flexibility of the covered employee was a
                                                                     22                         motivating factor for any adverse employment
                                                                     23                         action taken by an employer, even if such action
                                                                     24                         was also motivated by other factors.



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                                                                     25                ‘‘(c) RIGHT TO REQUEST FUTURE FLEXIBILITY.—


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                                                                       1                        ‘‘(1) RIGHT TO REQUEST.—An employee shall
                                                                       2               have the right to request to have the schedule that
                                                                       3               the employee desires, including—
                                                                       4                                 ‘‘(A) the number of shifts or other units of
                                                                       5                        work per day or week;
                                                                       6                                 ‘‘(B) the number of hours of work per day;
                                                                       7                                 ‘‘(C) the number of days of work per week;
                                                                       8                                 ‘‘(D) the location where the employee per-
                                                                       9                        forms the work; and
                                                                     10                                  ‘‘(E) any unpaid time off the employee de-
                                                                     11                         sires to take.
                                                                     12                         ‘‘(2) NONRETALIATION.—
                                                                     13                                  ‘‘(A) IN GENERAL.—An employer shall not
                                                                     14                         discharge or in any other manner discriminate
                                                                     15                         against an employee for making a request de-
                                                                     16                         scribed in paragraph (1).
                                                                     17                                  ‘‘(B) MOTIVATING FACTOR.—Unlawful dis-
                                                                     18                         charge or discrimination against an employee is
                                                                     19                         established under subparagraph (A) when the
                                                                     20                         complaining party demonstrates that the re-
                                                                     21                         quest described in paragraph (1) was a moti-
                                                                     22                         vating factor for such discharge or discrimina-
                                                                     23                         tion, even if such discharge or discrimination
                                                                     24                         was also motivated by other factors.



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                                                                     25                         ‘‘(3) RESPONSE.—


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                                                                       1                                 ‘‘(A) IN GENERAL.—An employer shall re-
                                                                       2                        spond to a request described in paragraph (1)
                                                                       3                        by either granting the request in full or pro-
                                                                       4                        viding the employee with a written justification
                                                                       5                        for any portion of the request that the employer
                                                                       6                        denies based on a compelling business necessity.
                                                                       7                                 ‘‘(B) REVIEW BY SECRETARY.—If the em-
                                                                       8                        ployer does not grant a request described in
                                                                       9                        paragraph (1) in full, the employee may request
                                                                     10                         review by the Secretary. The Secretary may—
                                                                     11                                          ‘‘(i) issue an order to overrule the em-
                                                                     12                                  ployer’s denial of the employee’s request,
                                                                     13                                  or any portion of the employee’s request, if
                                                                     14                                  the Secretary finds that the employer does
                                                                     15                                  not have a compelling business necessity
                                                                     16                                  for the denial; or
                                                                     17                                          ‘‘(ii) issue an order to confirm the em-
                                                                     18                                  ployer’s denial of the employee’s request,
                                                                     19                                  or any portion of the employee’s request, if
                                                                     20                                  the Secretary finds that the employer has
                                                                     21                                  a compelling business necessity for the de-
                                                                     22                                  nial.
                                                                     23                                  ‘‘(C) APPEALS.—
                                                                     24                                          ‘‘(i) IN GENERAL.—An aggrieved em-



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                                                                     25                                  ployer or employee may—


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                                                                       1                                                  ‘‘(I) appeal an order of the Sec-
                                                                       2                                         retary under subparagraph (B) to an
                                                                       3                                         administrative law judge; and
                                                                       4                                                  ‘‘(II) appeal an order of an ad-
                                                                       5                                         ministrative law judge under sub-
                                                                       6                                         clause (I) to a Federal or State court
                                                                       7                                         of competent jurisdiction.
                                                                       8                                         ‘‘(ii) COMPLIANCE WITH ORDER DUR-
                                                                       9                                 ING APPEAL.—For the duration of an ap-

                                                                     10                                  peal described in clause (i)(I), the em-
                                                                     11                                  ployer and employee shall comply with the
                                                                     12                                  order of the Secretary until and unless the
                                                                     13                                  order is overturned by an administrative
                                                                     14                                  law judge. For the duration of an appeal
                                                                     15                                  described in clause (i)(II), the employer
                                                                     16                                  and employee shall comply with the order
                                                                     17                                  of the administrative law judge until and
                                                                     18                                  unless the order is overturned by a Federal
                                                                     19                                  or State court of competent jurisdiction.
                                                                     20                                  ‘‘(D)        COMPELLING                    BUSINESS            NECES-

                                                                     21                         SITY.—For              purposes of this paragraph, the
                                                                     22                         term ‘compelling business necessity’ means only
                                                                     23                         any of the following:




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                                                                       1                                         ‘‘(i) A significant burden of additional
                                                                       2                                 costs to the employer that would be prohib-
                                                                       3                                 itive of continuing to conduct business.
                                                                       4                                         ‘‘(ii) A complete inability of the em-
                                                                       5                                 ployer to reorganize work amongst existing
                                                                       6                                 employees.
                                                                       7                                         ‘‘(iii) A complete inability of the em-
                                                                       8                                 ployer to recruit additional employees.
                                                                       9                                         ‘‘(iv) A significant detrimental effect
                                                                     10                                  on the ability of the employer to meet cus-
                                                                     11                                  tomer demand.
                                                                     12                                          ‘‘(v) A lack of work during the period
                                                                     13                                  the employee proposes to work.
                                                                     14                                          ‘‘(vi) A planned structural change to
                                                                     15                                  the         employer’s              business,            which   was
                                                                     16                                  planned before the request was made.
                                                                     17                                          ‘‘(vii) Any other grounds as deter-
                                                                     18                                  mined by the Secretary through regulation
                                                                     19                                  that the Secretary demonstrates satisfy the
                                                                     20                                  high bar of being compellingly necessary
                                                                     21                                  for an employer to continue conducting
                                                                     22                                  business and being more than merely a le-
                                                                     23                                  gitimate business reason.’’;
                                                                     24                         (2) by striking section 10 (29 U.S.C. 210); and



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                                                                       1                        (3) by redesignating section 9 (29 U.S.C. 209)
                                                                       2               as section 10.
                                                                       3               (b) ENFORCEMENT.—
                                                                       4                        (1) PROHIBITED ACTS.—Section 15(a)(2) of the
                                                                       5               Fair Labor Standards Act of 1938 (29 U.S.C.
                                                                       6               215(a)(2)) is amended by striking ‘‘section 6 or 7’’
                                                                       7               and inserting ‘‘section 6, 7, or 8’’.
                                                                       8                        (2) PENALTIES.—Section 16(e) of the Fair
                                                                       9               Labor Standards Act of 1938 (29 U.S.C. 216(e)) is
                                                                     10                amended by adding at the end the following:
                                                                     11                ‘‘(6) PENALTIES FOR VIOLATING RIGHT TO FLEXI-
                                                                     12      BILITY.—Any person who violates section 8 shall be sub-

                                                                     13 ject to a civil penalty, for each employee aggrieved by the
                                                                     14 violation and for each day in which the employer is in such
                                                                     15 violation, of—
                                                                     16                         ‘‘(A) $1,000; or
                                                                     17                         ‘‘(B) if the violation is repeated or willful,
                                                                     18                $5,000.’’.
                                                                     19                (c) CONFORMING AMENDMENTS TO OTHER LAWS.—
                                                                     20                         (1) AGE DISCRIMINATION IN EMPLOYMENT ACT
                                                                     21                OF 1967.—Section 7(a) of the Age Discrimination in

                                                                     22                Employment Act of 1967 (29 U.S.C. 626(a)) is
                                                                     23                amended by striking ‘‘sections 9 and 11 of the Fair
                                                                     24                Labor Standards Act of 1938, as amended (29



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                                                                     25                U.S.C. 209 and 211)’’ and inserting ‘‘sections 10


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                                                                       1               and 11 of the Fair Labor Standards Act of 1938,
                                                                       2               as amended (29 U.S.C. 210 and 211)’’.
                                                                       3                        (2) FAMILY                AND        MEDICAL              LEAVE         ACT   OF

                                                                       4               1993.—Section                 106(d) of the Family and Medical
                                                                       5               Leave Act of 1993 (29 U.S.C. 2616(d)) is amended
                                                                       6               by striking ‘‘section 9 of the Fair Labor Standards
                                                                       7               Act of 1938 (29 U.S.C. 209)’’ and inserting ‘‘section
                                                                       8               10 of the Fair Labor Standards Act of 1938 (29
                                                                       9               U.S.C. 210)’’.
                                                                     10      SEC. 102. RIGHT TO EMPLOYEE PROTECTIONS AT WORK.

                                                                     11                (a) FAIR LABOR STANDARDS ACT OF 1938.—
                                                                     12                         (1) STRENGTHENING EMPLOYEE TEST.—Sec-
                                                                     13                tion 3(e) of the Fair Labor Standards Act of 1938
                                                                     14                (29 U.S.C. 203(e)) is amended by adding at the end
                                                                     15                the following:
                                                                     16                ‘‘(6)(A) For purposes of this Act, and except as pro-
                                                                     17 vided in paragraphs (2), (3), (4), (5), (7), and (9), an indi-
                                                                     18 vidual performing any labor for remuneration for a person
                                                                     19 shall be an employee employed by the person and not an
                                                                     20 independent contractor of the person, unless—
                                                                     21                         ‘‘(i) the individual is free from control and di-
                                                                     22                rection in connection with the performance of the
                                                                     23                labor, both under the contract for the performance
                                                                     24                of the labor and in fact;



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                                                                       1                        ‘‘(ii) the labor is performed outside the usual
                                                                       2               course of the business of the person; and
                                                                       3                        ‘‘(iii) the individual is customarily engaged in
                                                                       4               an independently established trade, occupation, pro-
                                                                       5               fession, or business of the same nature as that in-
                                                                       6               volved in the labor performed.
                                                                       7               ‘‘(B)(i) Subparagraph (A) is not a codification of the
                                                                       8 common law and shall not be interpreted to reflect, or to
                                                                       9 be limited or restricted by, common law interpretations re-
                                                                     10 garding when an individual is an employee of another per-
                                                                     11 son. Subparagraph (A) shall be considered complete as
                                                                     12 written, and any judicial or agency interpretation of such
                                                                     13 subparagraph shall be limited to the explicit requirements
                                                                     14 of such subparagraph.
                                                                     15                ‘‘(ii) The requirements of subparagraph (A) shall not
                                                                     16 be in any way affected by any agreement, written or other-
                                                                     17 wise, that purports to demonstrate an individual’s ac-
                                                                     18 knowledgment of or acquiescence to the absence of an em-
                                                                     19 ployer-employee relationship with a particular employer.
                                                                     20                ‘‘(7)(A) Notwithstanding any contrary provisions in
                                                                     21 this subsection or subsection (d) or (g), in any instance
                                                                     22 in which there is a non-compete agreement between a per-
                                                                     23 son and an individual who performs labor for such person,
                                                                     24 the presence of the non-compete agreement, without re-



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                                                                     25 gard to the legality or enforceability of the non-compete


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                                                                       1 agreement, shall be evidence of control for purposes of
                                                                       2 paragraph (6)(A)(i), but shall not by itself establish an
                                                                       3 employment relationship between such person and the in-
                                                                       4 dividual.
                                                                       5               ‘‘(B) In this paragraph, the term ‘non-compete agree-
                                                                       6 ment’ means an agreement between a person and an indi-
                                                                       7 vidual who performs labor for such person that restricts
                                                                       8 the individual from performing, either during or after the
                                                                       9 individual performs labor for such person—
                                                                     10                         ‘‘(i) any labor for another person;
                                                                     11                         ‘‘(ii) any labor for a specified period of time;
                                                                     12                         ‘‘(iii) any labor in a specified geographical area;
                                                                     13                or
                                                                     14                         ‘‘(iv) any labor for another person that is simi-
                                                                     15                lar to the labor such individual performed for the
                                                                     16                person that is a party to such agreement.’’.
                                                                     17                         (2) PRESUMPTION                       OF EMPLOYEE STATUS.—

                                                                     18                Section 3(e) of the Fair Labor Standards Act of
                                                                     19                1938 (29 U.S.C. 203(e)), as amended by paragraph
                                                                     20                (1), is further amended by adding at the end the fol-
                                                                     21                lowing:
                                                                     22                ‘‘(8) For purposes of this Act, an individual per-
                                                                     23 forming any labor for remuneration for a person shall be
                                                                     24 presumed to be an employee of the person, unless the



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                                                                     25 party seeking to assert otherwise establishes by clear and


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                                                                       1 convincing evidence that the individual is not an employee
                                                                       2 in accordance with paragraphs (1) through (7) and para-
                                                                       3 graph (9).’’.
                                                                       4                        (3) MISCLASSIFICATION AS A STANDALONE VIO-
                                                                       5               LATION.—

                                                                       6                                 (A) IN GENERAL.—The Fair Labor Stand-
                                                                       7                        ards Act of 1938 (29 U.S.C. 201 et seq.) is
                                                                       8                        amended—
                                                                       9                                         (i) by inserting after section 4 (29
                                                                     10                                  U.S.C. 204) the following:
                                                                     11      ‘‘SEC. 5. MISCLASSIFICATION.

                                                                     12                ‘‘No employer shall misclassify any employee, who in
                                                                     13 any workweek is engaged in commerce or in the produc-
                                                                     14 tion of goods for commerce, or is employed in an enter-
                                                                     15 prise engaged in commerce or in the production of goods
                                                                     16 for commerce, of the employer as not an employee of the
                                                                     17 employer for purposes of this Act.’’; and
                                                                     18                                          (ii) in section 15(a) (29 U.S.C.
                                                                     19                                  215(a))—
                                                                     20                                                   (I) in paragraph (5), by striking
                                                                     21                                          the period at the end and inserting a
                                                                     22                                          semicolon; and
                                                                     23                                                   (II) by adding at the end the fol-
                                                                     24                                          lowing:



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                                                                     25                         ‘‘(6) to violate section 5;’’.


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                                                                       1                                 (B) INCORPORATION TO FURTHER VIOLA-
                                                                       2                        TIONS.—Section                    15(a) of the Fair Labor
                                                                       3                        Standards Act of 1938 (29 U.S.C. 215(a)), as
                                                                       4                        amended by subparagraph (A)(ii), is further
                                                                       5                        amended by adding at the end the following:
                                                                       6                        ‘‘(7) for the purpose, in whole or in part, of fa-
                                                                       7               cilitating, or evading detection of, a violation of this
                                                                       8               Act, including a violation of paragraph (6)—
                                                                       9                                 ‘‘(A) to incorporate or form, or assist in
                                                                     10                         the incorporation or formation of, a corpora-
                                                                     11                         tion, partnership, limited liability corporation,
                                                                     12                         or other entity; or
                                                                     13                                  ‘‘(B) to pay or collect a fee for use of a
                                                                     14                         foreign or domestic corporation, partnership,
                                                                     15                         limited liability corporation, or other entity;
                                                                     16                         or’’.
                                                                     17                                  (C) PENALTIES.—Section 16(e) of the
                                                                     18                         Fair Labor Standards Act of 1938 (29 U.S.C.
                                                                     19                         216(e)), as amended by section 101(b)(2), is
                                                                     20                         further amended by adding at the end the fol-
                                                                     21                         lowing:
                                                                     22                ‘‘(7) PENALTIES FOR MISCLASSIFICATION AND IN-
                                                                     23      CORPORATION TO FURTHER VIOLATIONS.—




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                                                                       1                        ‘‘(A) IN GENERAL.—Any person who violates
                                                                       2               paragraph (6) or (7) of section 15(a) shall be sub-
                                                                       3               ject to a civil penalty of—
                                                                       4                                 ‘‘(i) subject to clauses (ii) and (iii),
                                                                       5                        $10,000;
                                                                       6                                 ‘‘(ii) if the violation is repeated or willful,
                                                                       7                        $30,000; or
                                                                       8                                 ‘‘(iii) if the violation is widespread, 1 per-
                                                                       9                        cent of the net profits of the person for the year
                                                                     10                         in which the person had the highest net profits
                                                                     11                         out of all years in which the person was in such
                                                                     12                         violation.
                                                                     13                         ‘‘(B) REPEATED,                     OR       WILLFUL,              AND   WIDE-

                                                                     14                SPREAD VIOLATIONS.—If                            a violation of paragraph
                                                                     15                (6) or (7) of section 15(a) is repeated or willful, as
                                                                     16                described in subparagraph (A)(ii), and is wide-
                                                                     17                spread, as described in subparagraph (A)(iii), the
                                                                     18                higher penalty of the penalties described in such
                                                                     19                subparagraphs shall apply.
                                                                     20                         ‘‘(C) PAYMENT OF PENALTIES.—Any penalty
                                                                     21                assessed under subparagraph (A) for a violation of
                                                                     22                paragraph (6) or (7) of section 15(a) shall be paid
                                                                     23                from an account of the person in such violation and
                                                                     24                not paid, or reimbursed, by any insurance plan that



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                                                                     25                would indemnify the person from violations of such


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                                                                       1               paragraph (6) or (7), respectively. If a person re-
                                                                       2               ceives a payment from an insurance plan to indem-
                                                                       3               nify the person from a violation of such paragraph,
                                                                       4               the person shall transfer the payment to the Sec-
                                                                       5               retary, in addition to the amount to be paid from
                                                                       6               the account of the person for the penalty. The
                                                                       7               amount of a payment transferred to the Secretary
                                                                       8               under this subparagraph shall be treated as a civil
                                                                       9               penalty under this section for a violation of section
                                                                     10                15 for purposes of paragraph (5) of this subsection
                                                                     11                and subsection (f).’’.
                                                                     12                         (4) PROTECTION                       FROM            RETALIATION        FOR

                                                                     13                BEING AN EMPLOYEE.—Section 15(a)(3) of the Fair

                                                                     14                Labor Standards Act of 1938 (29 U.S.C. 215(a)(3))
                                                                     15                is amended—
                                                                     16                                  (A) by striking ‘‘employee because such
                                                                     17                         employee has filed’’ and inserting ‘‘employee be-
                                                                     18                         cause—
                                                                     19                                  ‘‘(A) such employee has filed;’’;
                                                                     20                                  (B) by striking ‘‘committee;’’ and inserting
                                                                     21                         ‘‘committee; or’’; and
                                                                     22                                  (C) by adding at the end the following:
                                                                     23                         ‘‘(B) such employee—
                                                                     24                                  ‘‘(i) is required, pursuant to the enactment



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                                                                     25                         of the Worker Flexibility and Small Business


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                                                                       1                        Protection Act of 2020, to be classified as an
                                                                       2                        employee of the person for purposes of this Act
                                                                       3                        and not an independent contractor; and
                                                                       4                                 ‘‘(ii) was classified by the person as an
                                                                       5                        independent contractor prior to the date of en-
                                                                       6                        actment of the Worker Flexibility and Small
                                                                       7                        Business Protection Act of 2020;’’.
                                                                       8                        (5) RULES REGARDING UNLAWFUL DISCHARGE
                                                                       9               OR DISCRIMINATION.—Section 15 of the Fair Labor

                                                                     10                Standards Act of 1938 (29 U.S.C. 215) is amended
                                                                     11                by adding at the end the following:
                                                                     12                ‘‘(c) RULES REGARDING UNLAWFUL DISCHARGE OR
                                                                     13 DISCRIMINATION.—
                                                                     14                         ‘‘(1) PRESUMPTION OF RETALIATION.—Any ac-
                                                                     15                tion taken against an employee within 90 days of
                                                                     16                the employee taking any action described in sub-
                                                                     17                section (a)(3)(A), including taking any such action
                                                                     18                with respect to exercising the right of the employee
                                                                     19                pursuant to section 5 to not be misclassified, shall
                                                                     20                establish a rebuttable presumption that the action is
                                                                     21                discrimination against the employee in violation of
                                                                     22                subsection (a)(3).
                                                                     23                         ‘‘(2)       MOTIVATING                  FACTOR.—Unlawful                dis-
                                                                     24                charge or other discrimination against an employee



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                                                                     25                under subsection (a)(3) is established when the com-


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                                                                       1               plaining party demonstrates that one of the actions
                                                                       2               or the classification described in such subsection was
                                                                       3               a motivating factor for such discharge or other dis-
                                                                       4               crimination, even if such discharge or other discrimi-
                                                                       5               nation was also motivated by other factors.’’.
                                                                       6                        (6)       STATUTORY                  EMPLOYERS                  IN      HEAVILY

                                                                       7               MISCLASSIFIED INDUSTRIES.—

                                                                       8                                 (A) DEFINITION OF EMPLOYER.—Section
                                                                       9                        3(d) of the Fair Labor Standards Act of 1938
                                                                     10                         (29 U.S.C. 203(d)) is amended to read as fol-
                                                                     11                         lows:
                                                                     12                ‘‘(d) EMPLOYER.—
                                                                     13                         ‘‘(1) IN GENERAL.—The term ‘employer’ in-
                                                                     14                cludes any person acting directly or indirectly in the
                                                                     15                interest of an employer in relation to an employee.
                                                                     16                         ‘‘(2) INCLUSIONS AND EXCLUSIONS.—The term
                                                                     17                ‘employer’ includes a public agency but does not in-
                                                                     18                clude any labor organization (other than when acting
                                                                     19                as an employer) or anyone acting in the capacity of
                                                                     20                officer or agent of such labor organization.
                                                                     21                         ‘‘(3)       APPLICATION                     WITH         REFERENCE          TO

                                                                     22                OTHER DEFINITIONS.—The term ‘employer’ shall be

                                                                     23                interpreted and applied in a manner that is con-
                                                                     24                sistent with the other definitions in this section and



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                                                                     25                that incorporates the term ‘employee’, as defined in


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                                                                       1               subsection (e), and the term ‘employ’, as defined in
                                                                       2               subsection (g).
                                                                       3                        ‘‘(4) STATUTORY EMPLOYERS IN CERTAIN IN-
                                                                       4               DUSTRIES.—The                    term ‘employer’ shall include any
                                                                       5               person, except a person excluded under paragraph
                                                                       6               (2), with respect to an individual described in sub-
                                                                       7               section (e)(9) performing labor that is beneficial to
                                                                       8               the person, that is engaged in any of the following
                                                                       9               work:
                                                                     10                                  ‘‘(A) Transportation, including any person
                                                                     11                         that benefits from labor performed by individ-
                                                                     12                         uals in the form of transportation in a motor-
                                                                     13                         ized or unmotorized vehicle, by foot, or by any
                                                                     14                         other means, including transportation network
                                                                     15                         companies, technology platform companies, pas-
                                                                     16                         senger transportation or food transportation
                                                                     17                         companies, and cargo transportation companies.
                                                                     18                                  ‘‘(B) Network dispatching, including any
                                                                     19                         person that uses a digital network to connect
                                                                     20                         individuals or entities seeking services or labor
                                                                     21                         with individuals or entities seeking to provide
                                                                     22                         services or labor, but not including any person
                                                                     23                         who owns, controls, or manages—
                                                                     24                                          ‘‘(i) a completely neutral physical or



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                                                                     25                                  internet marketplace where the procure-


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                                                                       1                                 ment of goods or services takes place be-
                                                                       2                                 tween individuals who are completely inde-
                                                                       3                                 pendent from and free from any and all di-
                                                                       4                                 rection or control by the person owning,
                                                                       5                                 controlling, or managing the neutral mar-
                                                                       6                                 ketplace, including such person having ab-
                                                                       7                                 solutely no role in the setting of prices or
                                                                       8                                 rates, in the assignment or referral of re-
                                                                       9                                 quests for goods or services to individuals
                                                                     10                                  who could potentially provide such goods
                                                                     11                                  or services, and in the acceptance or rejec-
                                                                     12                                  tion of any requests for goods or services;
                                                                     13                                  and
                                                                     14                                          ‘‘(ii)         a   labor          organization         hiring
                                                                     15                                  hall.’’.
                                                                     16                                  (B) DEFINITION OF EMPLOYEE.—Section
                                                                     17                         3(e) of the Fair Labor Standards Act of 1938
                                                                     18                         (29 U.S.C. 203(e)), as amended by paragraph
                                                                     19                         (2), is further amended by adding at the end
                                                                     20                         the following:
                                                                     21                ‘‘(9) Notwithstanding paragraph (1) or (6) of this
                                                                     22 subsection, subsection (d) (other than paragraph (4) of
                                                                     23 such subsection), or subsection (g), and except as provided
                                                                     24 in paragraphs (2), (3), (4), and (5), the term ‘employee’,



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                                                                     25 with respect to an employer described in subsection (d)(4),


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                                                                       1 shall include any individual performing labor that is bene-
                                                                       2 ficial to the employer, including—
                                                                       3                        ‘‘(A) with respect to transportation described in
                                                                       4               subparagraph (A) of such subsection, any individual
                                                                       5               who performs any portion of the labor included
                                                                       6               under such subparagraph, including individuals who
                                                                       7               perform labor in the form of engaging in transpor-
                                                                       8               tation beneficial to transportation network compa-
                                                                       9               nies, technology platform companies, passenger
                                                                     10                transportation or food transportation companies, or
                                                                     11                cargo transportation companies; and
                                                                     12                         ‘‘(B) with respect to network dispatching de-
                                                                     13                scribed in subparagraph (B) of such subsection, any
                                                                     14                individual who performs any portion of the services
                                                                     15                or labor included under such subparagraph, includ-
                                                                     16                ing providing the services or labor to the individuals
                                                                     17                or entities seeking such services or labor.’’.
                                                                     18                                  (C) COMPENSABLE TIME WORKED.—
                                                                     19                                          (i) IN          GENERAL.—The                     Fair Labor
                                                                     20                                  Standards Act of 1938 (29 U.S.C. 201 et
                                                                     21                                  seq.) is amended by inserting after section
                                                                     22                                  8 the following:




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                                                                       1     ‘‘SEC. 9. SPECIAL REQUIREMENTS FOR CERTAIN WORKERS.

                                                                       2               ‘‘(a) DETERMINING COMPENSABLE HOURS WORKED
                                                                       3     FOR         TRANSPORTATION                         AND      NETWORK DISPATCHING
                                                                       4 WORKERS.—
                                                                       5                        ‘‘(1) DETERMINING HOURS WORKED.—
                                                                       6                                 ‘‘(A) IN GENERAL.—For the purposes of
                                                                       7                        sections 6 and 7, in determining the hours for
                                                                       8                        which an employee described in section 3(e)(9)
                                                                       9                        is employed, there shall be included any reason-
                                                                     10                         able amount of time, as determined by the Sec-
                                                                     11                         retary in accordance with subparagraph (C),
                                                                     12                         spent on waiting for, receiving, reviewing, con-
                                                                     13                         sidering, accepting, and transporting oneself to
                                                                     14                         fulfill an assignment or request to perform any
                                                                     15                         portion of labor immediately before performing
                                                                     16                         such portion of labor, including through a
                                                                     17                         smartphone application, technology platform,
                                                                     18                         dispatch network, or any other mechanism that
                                                                     19                         is used to connect individuals or entities seeking
                                                                     20                         services or labor with employees seeking to pro-
                                                                     21                         vide services or labor.
                                                                     22                                  ‘‘(B) RATE                 OF       COMPENSATION.—Com-

                                                                     23                         pensation paid for any reasonable amount of
                                                                     24                         time described in subparagraph (A) shall be




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                                                                     25                         paid at a rate no less than the employee’s reg-
                                                                     26                         ular rate of pay.
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                                                                       1                                 ‘‘(C) DETERMINATION                            OF       AMOUNT   OF

                                                                       2                        TIME.—The              Secretary shall have discretion to
                                                                       3                        determine a reasonable amount of time for pur-
                                                                       4                        poses of subparagraph (A) given the specific
                                                                       5                        circumstances involved, except that in all
                                                                       6                        cases—
                                                                       7                                         ‘‘(i) the minimum amount of the rea-
                                                                       8                                 sonable amount of time for the activities
                                                                       9                                 described in subparagraph (A) before ac-
                                                                     10                                  cepting and performing a portion of labor
                                                                     11                                  shall be 3 minutes; and
                                                                     12                                          ‘‘(ii) the maximum amount of such
                                                                     13                                  reasonable amount of time shall be 30
                                                                     14                                  minutes.
                                                                     15                                  ‘‘(D) COLLECTIVE BARGAINING.—Notwith-
                                                                     16                         standing subparagraph (A), no employer shall
                                                                     17                         be determined to have violated section 6 or 7 by
                                                                     18                         employing any employee described in section
                                                                     19                         3(e)(9) without providing such employee com-
                                                                     20                         pensation for the reasonable amount of time
                                                                     21                         under subparagraph (A) if such employee is so
                                                                     22                         employed in pursuance of an agreement, made
                                                                     23                         as a result of collective bargaining by a bona
                                                                     24                         fide representative of employees for purposes of



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                                                                     25                         section 8(f) or (9)(a) of the National Labor Re-


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                                                                       1                        lations Act (29 U.S.C. 158(f), 159(a)), that al-
                                                                       2                        ters or waives the compensation requirements of
                                                                       3                        this paragraph.
                                                                       4                        ‘‘(2) INFORMATION.—The Secretary shall have
                                                                       5               the authority to request, inspect, and pursue sub-
                                                                       6               poenas for any information or data held by an em-
                                                                       7               ployer that the Secretary determines to be rel-
                                                                       8               evant—
                                                                       9                                 ‘‘(A) in determining the reasonable amount
                                                                     10                         of time under paragraph (1)(A) for which an
                                                                     11                         employee described in section 3(e)(9) should be
                                                                     12                         compensated;
                                                                     13                                  ‘‘(B) in determining an employee’s regular
                                                                     14                         rate of pay for purposes of paragraph (1)(B);
                                                                     15                         or
                                                                     16                                  ‘‘(C) for any other purpose related to this
                                                                     17                         subsection.’’.
                                                                     18                                          (ii) PENALTIES.—Section 15(a)(2) is
                                                                     19                                  amended by inserting ‘‘including violations
                                                                     20                                  due to failure to comply with section 9(a),’’
                                                                     21                                  after ‘‘section 7,’’.
                                                                     22                         (7)           MISCLASSIFICATION                                 ENFORCEMENT

                                                                     23                THROUGH              RECLASSIFICATION                      ORDERS            AND   STOP

                                                                     24                WORK ORDERS.—




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                                                                       1                                 (A) IN GENERAL.—Section 17 of the Fair
                                                                       2                        Labor Standards Act of 1938 (29 U.S.C. 217)
                                                                       3                        is amended—
                                                                       4                                         (i) by striking ‘‘The district courts’’
                                                                       5                                 and inserting ‘‘(a) The district courts’’;
                                                                       6                                         (ii) by inserting ‘‘orders issued under
                                                                       7                                 subsection (b)(1) or (c)(1) or violations of’’
                                                                       8                                 before ‘‘section 15,’’; and
                                                                       9                                         (iii) by adding at the end the fol-
                                                                     10                                  lowing:
                                                                     11                ‘‘(b) MISCLASSIFICATION ENFORCEMENT THROUGH
                                                                     12 RECLASSIFICATION ORDERS.—
                                                                     13                         ‘‘(1) IN             GENERAL.—If                the Secretary deter-
                                                                     14                mines, after an investigation under section 11, that
                                                                     15                an employer has misclassified 1 or more individuals
                                                                     16                who are employees of the employer as not employees
                                                                     17                in violation of section 15(a)(6)—
                                                                     18                                  ‘‘(A) the Secretary shall issue, not later
                                                                     19                         than 24 hours after making such determination,
                                                                     20                         an order against the employer requiring the em-
                                                                     21                         ployer to immediately classify the 1 or more in-
                                                                     22                         dividuals as employees of the employer; and
                                                                     23                                  ‘‘(B) the employer shall immediately com-
                                                                     24                         ply with the order issued under subparagraph



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                                                                       1                        (A) or shall otherwise be in violation of section
                                                                       2                        15(a)(6).
                                                                       3                        ‘‘(2) ORDERS.—An order issued under para-
                                                                       4               graph (1) shall—
                                                                       5                                 ‘‘(A) be effective at the time at which the
                                                                       6                        order is served upon the employer, which may
                                                                       7                        be accomplished by the posting of a copy of the
                                                                       8                        order in a conspicuous location at the place of
                                                                       9                        business of the employer; and
                                                                     10                                  ‘‘(B) remain in effect during any review
                                                                     11                         conducted under paragraph (3) with respect to
                                                                     12                         such order and during any hearing and appeal
                                                                     13                         of such order under paragraph (4).
                                                                     14                         ‘‘(3) REVIEW FOR RECONSIDERATION.—
                                                                     15                                  ‘‘(A) IN GENERAL.—An employer against
                                                                     16                         whom an order is issued under paragraph (1)
                                                                     17                         may request a review by the Secretary to con-
                                                                     18                         test the order.
                                                                     19                                  ‘‘(B) REQUESTS.—A request under sub-
                                                                     20                         paragraph (A) shall be made in writing to the
                                                                     21                         Secretary not more than 5 days after the
                                                                     22                         issuance of the order.
                                                                     23                                  ‘‘(C) REQUIREMENTS FOR REVIEW.—
                                                                     24                                          ‘‘(i) IN         GENERAL.—A                    review under



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                                                                     25                                  this paragraph shall—


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                                                                       1                                                  ‘‘(I) commence not later than 24
                                                                       2                                         hours after a request is made under
                                                                       3                                         subparagraph (B); and
                                                                       4                                                  ‘‘(II) conclude not later than 24
                                                                       5                                         hours after such commencement.
                                                                       6                                         ‘‘(ii)         DETERMINATION.—Not                      later
                                                                       7                                 than 72 hours after a review concludes
                                                                       8                                 under clause (i)(II), the Secretary shall de-
                                                                       9                                 termine whether to affirm, modify, or re-
                                                                     10                                  voke the contested order.
                                                                     11                         ‘‘(4) HEARINGS AND APPEALS.—Any person ag-
                                                                     12                grieved by a determination of the Secretary under
                                                                     13                paragraph (3)(C)(ii) may—
                                                                     14                                  ‘‘(A) request a hearing to appeal such de-
                                                                     15                         termination to an administrative law judge; and
                                                                     16                                  ‘‘(B) appeal an order of an administrative
                                                                     17                         law judge under subparagraph (A) to a Federal
                                                                     18                         or State court of competent jurisdiction.
                                                                     19                         ‘‘(5) INJUNCTION                      PROCEEDINGS.—The                  Sec-
                                                                     20                retary may seek an injunction proceeding under sub-
                                                                     21                section (a) against any employer that violates an
                                                                     22                order issued under paragraph (1). A court shall
                                                                     23                issue such injunction if the Secretary has dem-
                                                                     24                onstrated it is just and proper.



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                                                                       1                        ‘‘(6) SUCCESSFULLY DISPROVING OCCURRENCE
                                                                       2               OF MISCLASSIFICATION.—

                                                                       3                                 ‘‘(A) IN GENERAL.—If an employer with
                                                                       4                        respect to whom an order was issued under
                                                                       5                        paragraph (1) successfully proves through a re-
                                                                       6                        view under paragraph (3), or a hearing or ap-
                                                                       7                        peal under paragraph (4), that the 1 or more
                                                                       8                        individuals who were the subject of the order
                                                                       9                        were not misclassified in violation of section
                                                                     10                         15(a)(6)—
                                                                     11                                          ‘‘(i) the order issued under paragraph
                                                                     12                                  (1) shall cease to be in effect;
                                                                     13                                          ‘‘(ii) the employer shall not be liable
                                                                     14                                  for any applicable unpaid minimum wages,
                                                                     15                                  unpaid overtime compensation, other dam-
                                                                     16                                  ages, or civil penalties owed by the em-
                                                                     17                                  ployer under section 16 with respect to the
                                                                     18                                  misclassification of such 1 or more individ-
                                                                     19                                  uals; and
                                                                     20                                          ‘‘(iii) the Secretary of Labor, adminis-
                                                                     21                                  trative law judge, or the court shall award
                                                                     22                                  (and the Secretary of the Treasury shall,
                                                                     23                                  in accordance with subparagraph (B), pay)
                                                                     24                                  to the employer reasonable fees and ex-



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                                                                     25                                  penses of attorneys in the same manner as


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                                                                       1                                 such fees and expenses could be awarded
                                                                       2                                 under section 2412 of title 28, United
                                                                       3                                 States Code, if the employer was a pre-
                                                                       4                                 vailing party and the review, hearing, or
                                                                       5                                 appeals proceeding was a civil action
                                                                       6                                 brought by or against the United States.
                                                                       7                                 ‘‘(B) SOURCE OF FUNDS.—The Secretary
                                                                       8                        of the Treasury shall, upon notification by the
                                                                       9                        Secretary of Labor, administrative law judge, or
                                                                     10                         court, as applicable, pay any fees or expenses
                                                                     11                         awarded under subparagraph (A)(iii) from
                                                                     12                         amounts in the general fund of the Treasury.
                                                                     13                ‘‘(c) MISCLASSIFICATION ENFORCEMENT THROUGH
                                                                     14 STOP WORK ORDERS.—
                                                                     15                         ‘‘(1) IN GENERAL.—In any case where an em-
                                                                     16                ployer does not comply with a reclassification order
                                                                     17                issued by the Secretary under subsection (b)(1),
                                                                     18                with respect to 2 or more individuals who are
                                                                     19                misclassified in violation of section 15(a)(6), within
                                                                     20                30 days of being served with the order, the Sec-
                                                                     21                retary shall issue—
                                                                     22                                  ‘‘(A) subject to subparagraph (B), an
                                                                     23                         order against the employer requiring the ces-
                                                                     24                         sation of all business operations of such em-



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                                                                     25                         ployer at the location of the violation; or


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                                                                       1                                 ‘‘(B) if an order described in subparagraph
                                                                       2                        (A) has been previously issued against the em-
                                                                       3                        ployer by any Federal, State, or local agency
                                                                       4                        for misclassifying an employee as not an em-
                                                                       5                        ployee in violation of section 15(a)(6), or an
                                                                       6                        equivalent State or local law as determined by
                                                                       7                        the Secretary, an order against the employer re-
                                                                       8                        quiring the cessation of all business operations
                                                                       9                        of such employer at all business locations of the
                                                                     10                         employer, including locations other than the lo-
                                                                     11                         cation where the misclassification occurred.
                                                                     12                         ‘‘(2) ORDERS.—
                                                                     13                                  ‘‘(A) APPLICABILITY.—An order issued
                                                                     14                         under paragraph (1) shall—
                                                                     15                                          ‘‘(i) be effective at the time at which
                                                                     16                                  the order is served upon the employer,
                                                                     17                                  which may be accomplished by the posting
                                                                     18                                  of a copy of the order in a conspicuous lo-
                                                                     19                                  cation at the place of business of the em-
                                                                     20                                  ployer; and
                                                                     21                                          ‘‘(ii) remain in effect—
                                                                     22                                                   ‘‘(I) during any review conducted
                                                                     23                                          under paragraph (3) with respect to
                                                                     24                                          such order and during any hearing



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                                                                       1                                         and appeal of such order under para-
                                                                       2                                         graph (4); and
                                                                       3                                                  ‘‘(II) until the Secretary issues a
                                                                       4                                         release order under subparagraph (B).
                                                                       5                                 ‘‘(B) RELEASE ORDERS.—
                                                                       6                                         ‘‘(i) IN GENERAL.—An order issued
                                                                       7                                 under paragraph (1) (that is not revoked
                                                                       8                                 by the Secretary or held unlawful or set
                                                                       9                                 aside by an administrative law judge or a
                                                                     10                                  court) shall remain in effect until the Sec-
                                                                     11                                  retary issues another order releasing the
                                                                     12                                  order issued under such paragraph upon a
                                                                     13                                  finding by the Secretary that the em-
                                                                     14                                  ployer—
                                                                     15                                                   ‘‘(I) has corrected the violation of
                                                                     16                                          section 15(a)(6) with respect to the 2
                                                                     17                                          or       more              individuals            who   were
                                                                     18                                          misclassified resulting in the order;
                                                                     19                                          and
                                                                     20                                                   ‘‘(II) has agreed to a payment
                                                                     21                                          schedule for all applicable unpaid min-
                                                                     22                                          imum wages, unpaid overtime com-
                                                                     23                                          pensation, other damages, and civil
                                                                     24                                          penalties owed by the employer under



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                                                                     25                                          section 16.


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                                                                       1                                         ‘‘(ii) REINSTATEMENT.—If, at any
                                                                       2                                 time after the Secretary issues a release
                                                                       3                                 order under clause (i), the employer fails
                                                                       4                                 to comply with the terms of the payment
                                                                       5                                 schedule described in clause (i)(II), the
                                                                       6                                 Secretary shall reinstate the order issued
                                                                       7                                 under paragraph (1) until the employer is
                                                                       8                                 in compliance with such terms.
                                                                       9                        ‘‘(3) REVIEW FOR RECONSIDERATION.—
                                                                     10                                  ‘‘(A) IN GENERAL.—An employer against
                                                                     11                         whom an order is issued under paragraph (1)
                                                                     12                         may request a review by the Secretary to con-
                                                                     13                         test the order.
                                                                     14                                  ‘‘(B) REQUESTS.—A request under sub-
                                                                     15                         paragraph (A) shall be made in writing to the
                                                                     16                         Secretary not more than 5 days after the
                                                                     17                         issuance of the order.
                                                                     18                                  ‘‘(C) REQUIREMENTS FOR REVIEW.—
                                                                     19                                          ‘‘(i) IN         GENERAL.—A                    review under
                                                                     20                                  this paragraph shall—
                                                                     21                                                   ‘‘(I) commence not later than 24
                                                                     22                                          hours after a request is made under
                                                                     23                                          subparagraph (B); and
                                                                     24                                                   ‘‘(II) conclude not later than 24



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                                                                       1                                         ‘‘(ii)         DETERMINATION.—Not                      later
                                                                       2                                 than 72 hours after a review concludes
                                                                       3                                 under clause (i)(II), the Secretary shall de-
                                                                       4                                 termine whether to affirm, modify, or re-
                                                                       5                                 voke the contested order.
                                                                       6                        ‘‘(4) HEARINGS AND APPEALS.—Any person ag-
                                                                       7               grieved by a determination of the Secretary under
                                                                       8               paragraph (3)(C)(ii) may—
                                                                       9                                 ‘‘(A) request a hearing to appeal such de-
                                                                     10                         termination to an administrative law judge; and
                                                                     11                                  ‘‘(B) appeal an order of an administrative
                                                                     12                         law judge under subparagraph (A) to a Federal
                                                                     13                         or State court of competent jurisdiction.
                                                                     14                         ‘‘(5) INJUNCTION                      PROCEEDINGS.—The                  Sec-
                                                                     15                retary may seek an injunction proceeding under sub-
                                                                     16                section (a) against any employer that violates an
                                                                     17                order issued under paragraph (1). A court shall
                                                                     18                issue such injunction if the Secretary has dem-
                                                                     19                onstrated it is just and proper.
                                                                     20                         ‘‘(6) COMPENSATION FOR LOST WORK.—
                                                                     21                                  ‘‘(A) IN GENERAL.—Subject to subpara-
                                                                     22                         graph (B), an employer with respect to whom
                                                                     23                         an order is issued under paragraph (1) shall
                                                                     24                         pay each employee of the employer, who loses



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                                                                     25                         compensation due to the work of such employee


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                                                                       1                        ceasing as a result of such order, the compensa-
                                                                       2                        tion that would be owed to such employee if the
                                                                       3                        order was not issued.
                                                                       4                                 ‘‘(B)        LIMITATION.—Compensation                          paid
                                                                       5                        under subparagraph (A) shall be for each day,
                                                                       6                        not to exceed 10 days, for which the employee
                                                                       7                        would be paid if the order described in such
                                                                       8                        subparagraph were not in effect.
                                                                       9                        ‘‘(7) SUCCESSFULLY DISPROVING OCCURRENCE
                                                                     10                OF MISCLASSIFICATION.—

                                                                     11                                  ‘‘(A) IN GENERAL.—In any case where an
                                                                     12                         employer with respect to whom an order was
                                                                     13                         issued under paragraph (1) successfully proves,
                                                                     14                         through a review under paragraph (3) or a sub-
                                                                     15                         sequent hearing or appeals proceeding under
                                                                     16                         paragraph (4), that the 2 or more individuals
                                                                     17                         who were the subject of the order were not
                                                                     18                         misclassified in violation of section 15(a)(6)—
                                                                     19                                          ‘‘(i) the order issued under paragraph
                                                                     20                                  (1), and any order issued against the em-
                                                                     21                                  ployer under subsection (b)(1) with respect
                                                                     22                                  to such 2 or more individuals, shall cease
                                                                     23                                  to be in effect;
                                                                     24                                          ‘‘(ii) the employer shall not be liable



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                                                                     25                                  for any applicable unpaid minimum wages,


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                                                                       1                                 unpaid overtime compensation, other dam-
                                                                       2                                 ages, or civil penalties owed by the em-
                                                                       3                                 ployer under section 16 with respect to the
                                                                       4                                 misclassification of such 2 or more individ-
                                                                       5                                 uals; and
                                                                       6                                         ‘‘(iii) the Secretary of Labor, adminis-
                                                                       7                                 trative law judge, or the court shall award
                                                                       8                                 (and the Secretary of the Treasury shall,
                                                                       9                                 in accordance with subparagraph (B), pay)
                                                                     10                                  to the employer—
                                                                     11                                                   ‘‘(I) an amount equal to any de-
                                                                     12                                          monstrable lost net profits resulting
                                                                     13                                          from the order, as demonstrated by
                                                                     14                                          clear and convincing evidence; and
                                                                     15                                                   ‘‘(II) reasonable fees and ex-
                                                                     16                                          penses of attorneys in the same man-
                                                                     17                                          ner as such fees and expenses could
                                                                     18                                          be awarded under section 2412 of title
                                                                     19                                          28, United States Code, if the em-
                                                                     20                                          ployer was a prevailing party and the
                                                                     21                                          review, hearing, or appeals proceeding
                                                                     22                                          was a civil action brought by or
                                                                     23                                          against the United States.
                                                                     24                                  ‘‘(B) SOURCE OF FUNDS.—The Secretary



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                                                                     25                         of the Treasury shall, upon notification by the


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                                                                       1                        Secretary of Labor, administrative law judge, or
                                                                       2                        court, as applicable, pay any amounts, fees, or
                                                                       3                        expenses awarded under subparagraph (A)(iii)
                                                                       4                        from amounts available in the general fund of
                                                                       5                        the Treasury.’’.
                                                                       6                                 (B) PENALTIES.—Section 16(e) of the
                                                                       7                        Fair Labor Standards Act of 1938 (29 U.S.C.
                                                                       8                        216(e)), as amended by paragraph (3)(C), is
                                                                       9                        further amended by adding at the end the fol-
                                                                     10                         lowing:
                                                                     11                ‘‘(8) PENALTIES FOR VIOLATING RECLASSIFICATION
                                                                     12 ORDERS.—
                                                                     13                         ‘‘(A) CIVIL PENALTIES.—Any person who vio-
                                                                     14                lates a reclassification order issued by the Secretary
                                                                     15                under section 17(b)(1) shall be subject to a civil pen-
                                                                     16                alty of not less than $5,000 per day, with each day
                                                                     17                constituting a separate offense.
                                                                     18                         ‘‘(B) ADDITIONAL DAMAGES.—In any case in
                                                                     19                which an employer contests a reclassification order
                                                                     20                issued under paragraph (1) of section 17(b) in a re-
                                                                     21                view under paragraph (3) of such section, a hearing
                                                                     22                under paragraph (4)(A) of such section, and a sub-
                                                                     23                sequent judicial proceeding under paragraph (4)(B)
                                                                     24                of such section, and the court in such proceeding



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                                                                     25                rules in favor of the Secretary—


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                                                                       1                                 ‘‘(i) the court shall determine if, during the
                                                                       2                        period between the issuance of such order and
                                                                       3                        the conclusion of the proceeding, the employer
                                                                       4                        violated such order by not classifying the 1 or
                                                                       5                        more individuals as employees during that pe-
                                                                       6                        riod; and
                                                                       7                                 ‘‘(ii) if the court determines the employer
                                                                       8                        so violated the order during that period—
                                                                       9                                         ‘‘(I) the court shall determine the
                                                                     10                                  amount of net profits derived by the em-
                                                                     11                                  ployer from the individuals’ labor during
                                                                     12                                  that period; and
                                                                     13                                          ‘‘(II) the court shall assess damages
                                                                     14                                  in the amount determined under subclause
                                                                     15                                  (I), which damages shall be awarded to
                                                                     16                                  such individuals by the court.’’.
                                                                     17                                  (C) CONFORMING AMENDMENTS.—Sections
                                                                     18                         12(b) and 16(b) of the Fair Labor Standards
                                                                     19                         Act of 1938 (29 U.S.C. 212(b) and 216(b)) are
                                                                     20                         amended by striking ‘‘section 17’’ each place it
                                                                     21                         appears and inserting ‘‘section 17(a)’’.
                                                                     22                         (8) PRIVATE                ATTORNEYS GENERAL.—Section

                                                                     23                16 of the Fair Labor Standards Act of 1938 (29
                                                                     24                U.S.C. 216), as amended by paragraph (7)(B), is



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                                                                     25                further amended—


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                                                                       1                                 (A) in subsection (b), by inserting after the
                                                                       2                        third sentence the following: ‘‘Any employer
                                                                       3                        who violates a provision of this Act for which
                                                                       4                        a civil penalty may be assessed by the Secretary
                                                                       5                        under this Act may, in accordance with sub-
                                                                       6                        section (f), be liable to the employee or employ-
                                                                       7                        ees affected in the amount of the civil penalty.’’;
                                                                       8                                 (B) in subsection (e)—
                                                                       9                                         (i) in paragraph (3), in the matter
                                                                     10                                  preceding subparagraph (A) of the second
                                                                     11                                  sentence, by inserting ‘‘, except as provided
                                                                     12                                  in subsection (f)(3)(A),’’ after ‘‘may’’; and
                                                                     13                                          (ii) in paragraph (5)—
                                                                     14                                                   (I) in the first sentence, by in-
                                                                     15                                          serting ‘‘and as provided in subsection
                                                                     16                                          (f)(3)(B),’’ after ‘‘Except for civil pen-
                                                                     17                                          alties collected for violations of section
                                                                     18                                          12’’; and
                                                                     19                                                   (II) in the second sentence, by
                                                                     20                                          striking ‘‘Civil penalties’’ and insert-
                                                                     21                                          ing ‘‘Except as provided in subsection
                                                                     22                                          (f)(3)(B), civil penalties’’; and
                                                                     23                                  (C) by adding at the end the following:
                                                                     24                ‘‘(f) PRIVATE RIGHT OF ACTION FOR PENALTIES.—



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                                                                       1                        ‘‘(1) IN GENERAL.—Notwithstanding any other
                                                                       2               provision in this Act, an employee that is affected by
                                                                       3               a violation of a provision of this Act for which a civil
                                                                       4               penalty may be assessed by the Secretary under this
                                                                       5               Act may, subject to paragraph (2), bring a civil ac-
                                                                       6               tion in accordance with subsection (b) for the recov-
                                                                       7               ery of the amount of the penalty on behalf of the
                                                                       8               employee and any other employees similarly situated
                                                                       9               (subject to the requirements for being a party plain-
                                                                     10                tiff under such subsection).
                                                                     11                         ‘‘(2) NOTICE.—
                                                                     12                                  ‘‘(A) IN GENERAL.—Prior to filing the civil
                                                                     13                         action described in paragraph (1), the employee
                                                                     14                         filing such action shall file with the Secretary a
                                                                     15                         notice of—
                                                                     16                                          ‘‘(i) the complaint of the employee;
                                                                     17                                  and
                                                                     18                                          ‘‘(ii) the intention of the employee to
                                                                     19                                  file the action and recover the amount of
                                                                     20                                  the penalty and any other amount the em-
                                                                     21                                  ployee is seeking under subsection (b) from
                                                                     22                                  the employer.
                                                                     23                                  ‘‘(B) NOTIFICATION                        BY      SECRETARY    TO

                                                                     24                         EMPLOYEE.—




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                                                                       1                                         ‘‘(i) IN            GENERAL.—The                        Secretary
                                                                       2                                 shall, not later than 60 days after receiving
                                                                       3                                 the notice under subparagraph (A), notify
                                                                       4                                 the employee of whether the Secretary has
                                                                       5                                 assessed, is assessing, or plans to assess
                                                                       6                                 the civil penalty in accordance with this
                                                                       7                                 Act.
                                                                       8                                         ‘‘(ii) TERMINATION                         OF          EMPLOYEE

                                                                       9                                 RIGHT.—The right of an employee to bring

                                                                     10                                  an action under subsection (b) to recover a
                                                                     11                                  civil penalty under this subsection shall
                                                                     12                                  terminate upon the filing of a notification
                                                                     13                                  by the Secretary under clause (i) that the
                                                                     14                                  Secretary has assessed, is assessing, or
                                                                     15                                  plans to assess the civil penalty in accord-
                                                                     16                                  ance with this Act.
                                                                     17                         ‘‘(3) TREATMENT OF PENALTIES RECOVERED
                                                                     18                BY EMPLOYEES.—In a case in which the Secretary

                                                                     19                notifies the employee that the Secretary has not as-
                                                                     20                sessed, is not assessing, and plans not to assess the
                                                                     21                civil penalty (or fails to meet the required deadline
                                                                     22                for       notifying            the        employee             under             paragraph
                                                                     23                (2)(B)(i))—
                                                                     24                                  ‘‘(A) the second sentence of paragraph (3),



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                                                                     25                         and paragraph (5), of subsection (e) shall not


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                                                                       1                        apply with respect to the civil penalty sought by
                                                                       2                        the employee; and
                                                                       3                                 ‘‘(B) if the penalty is successfully recov-
                                                                       4                        ered through a civil action by the employee, the
                                                                       5                        employee and any other similarly situated em-
                                                                       6                        ployee (as applicable) shall retain the amount of
                                                                       7                        the penalty in accordance with paragraph (4)
                                                                       8                        (as applicable).
                                                                       9                        ‘‘(4) MULTIPLE                    EMPLOYEES.—In                     a case in
                                                                     10                which an employee brings a civil action in any Fed-
                                                                     11                eral or State court of competent jurisdiction under
                                                                     12                this subsection for the recovery of a civil penalty
                                                                     13                under this Act on behalf of the employee and other
                                                                     14                similarly situated employees—
                                                                     15                                  ‘‘(A) the employee bringing the action shall
                                                                     16                         be entitled to—
                                                                     17                                          ‘‘(i) 100 percent of the amount of the
                                                                     18                                  penalty assessed for such employee; and
                                                                     19                                          ‘‘(ii) 25 percent of the amount of the
                                                                     20                                  penalty assessed for similarly situated em-
                                                                     21                                  ployees involved in the action; and
                                                                     22                                  ‘‘(B) the court shall determine how to di-
                                                                     23                         vide the remainder of the amount of the penalty
                                                                     24                         assessed for similarly situated employees in-



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                                                                       1                        volved in the action equitably among such em-
                                                                       2                        ployees.
                                                                       3                        ‘‘(5) ARBITRATION.—
                                                                       4                                 ‘‘(A) IN GENERAL.—Notwithstanding any
                                                                       5                        other provision of Federal law and except as
                                                                       6                        provided in subparagraph (B), the right to
                                                                       7                        bring a civil action under this subsection may
                                                                       8                        not be waived, limited, or otherwise restricted
                                                                       9                        by any contract or other agreement between an
                                                                     10                         employee and an employer entered into before
                                                                     11                         the events giving rise to the civil action under
                                                                     12                         this subsection occurred, including any contract
                                                                     13                         or other agreement to resolve disputes through
                                                                     14                         arbitration.
                                                                     15                                  ‘‘(B) CONSENT OF SECRETARY.—No civil
                                                                     16                         action brought under this subsection may be
                                                                     17                         sent to or resolved through arbitration, regard-
                                                                     18                         less of whether all parties to the civil action
                                                                     19                         have consented to arbitration, without the ex-
                                                                     20                         plicit consent of the Secretary for sending that
                                                                     21                         specific action to arbitration.’’.
                                                                     22                (b) NATIONAL LABOR RELATIONS ACT.—
                                                                     23                         (1) STRENGTHENING EMPLOYEE TEST.—Sec-
                                                                     24                tion 2(3) of the National Labor Relations Act (29



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                                                                     25                U.S.C. 152(3)) is amended—


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                                                                       1                                 (A) by striking ‘‘The term’’ and inserting
                                                                       2                        ‘‘(A) The term’’;
                                                                       3                                 (B) by striking ‘‘employment, but shall
                                                                       4                        not’’ and inserting ‘‘employment. Such term
                                                                       5                        shall not’’; and
                                                                       6                                 (C) by adding at the end the following:
                                                                       7               ‘‘(B)(i) For purposes of this Act, and except as pro-
                                                                       8 vided in the second sentence of subparagraph (A) and sub-
                                                                       9 paragraphs (C) and (E), an individual performing any
                                                                     10 labor for remuneration for a person shall be an employee
                                                                     11 employed by such person and not an independent con-
                                                                     12 tractor of the person, unless—
                                                                     13                         ‘‘(I) the individual is free from control and di-
                                                                     14                rection in connection with the performance of the
                                                                     15                labor, both under the contract for the performance
                                                                     16                of the labor and in fact;
                                                                     17                         ‘‘(II) the labor is performed outside the usual
                                                                     18                course of the business of the person; and
                                                                     19                         ‘‘(III) the individual is customarily engaged in
                                                                     20                an independently established trade, occupation, pro-
                                                                     21                fession, or business of the same nature as that in-
                                                                     22                volved in the labor performed.
                                                                     23                ‘‘(ii)(I) Clause (i) is not a codification of the common
                                                                     24 law and shall not be interpreted to reflect, or to be limited



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                                                                     25 or restricted by, common law interpretations regarding


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                                                                       1 when an individual is an employee of another person.
                                                                       2 Clause (i) shall be considered complete as written, and any
                                                                       3 judicial or agency interpretation of such clause shall be
                                                                       4 limited to the explicit requirements of such clause.
                                                                       5               ‘‘(II) The requirements of clause (i) shall not be in
                                                                       6 any way affected by any agreement, written or otherwise,
                                                                       7 that purports to demonstrate an individual’s acknowledg-
                                                                       8 ment of or acquiescence to the absence of an employer-
                                                                       9 employee relationship with a particular employer.
                                                                     10                ‘‘(C)(i) Notwithstanding any contrary provisions in
                                                                     11 this paragraph or paragraph (2), in any instance in which
                                                                     12 there is a non-compete agreement between a person and
                                                                     13 an individual who performs labor for such person, the
                                                                     14 presence of the non-compete agreement, without regard to
                                                                     15 the legality or enforceability of the non-compete agree-
                                                                     16 ment, shall be evidence of control for purposes of subpara-
                                                                     17 graph (B)(i)(I), but shall not by itself establish an employ-
                                                                     18 ment relationship between such person and the individual.
                                                                     19                ‘‘(ii) In this subparagraph, the term ‘non-compete
                                                                     20 agreement’ means an agreement between a person and an
                                                                     21 individual who performs labor for such person that re-
                                                                     22 stricts the individual from performing, either during or
                                                                     23 after the individual performs labor for such person—
                                                                     24                         ‘‘(I) any labor for another person;



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                                                                     25                         ‘‘(II) any labor for a specified period of time;


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                                                                       1                        ‘‘(III) any labor in a specified geographical
                                                                       2               area; or
                                                                       3                        ‘‘(IV) any labor for another person that is simi-
                                                                       4               lar to the labor such individual performed for the
                                                                       5               person that is a party to such agreement.’’.
                                                                       6                        (2) PRESUMPTION                       OF EMPLOYEE STATUS.—

                                                                       7               Section 2(3) of the National Labor Relations Act
                                                                       8               (29 U.S.C. 152(3)), as amended by paragraph (1),
                                                                       9               is further amended by adding at the end the fol-
                                                                     10                lowing:
                                                                     11                ‘‘(D) For purposes of this Act, an individual per-
                                                                     12 forming any labor for remuneration for a person shall be
                                                                     13 presumed to be an employee of the person, unless the
                                                                     14 party seeking to assert otherwise establishes by clear and
                                                                     15 convincing evidence that the individual is not an employee
                                                                     16 of the person in accordance with this paragraph.’’.
                                                                     17                         (3) MISCLASSIFICATION AS A STANDALONE VIO-
                                                                     18                LATION.—

                                                                     19                                  (A) IN GENERAL.—Section 8(a) of the Na-
                                                                     20                         tional Labor Relations Act (29 U.S.C. 158(a))
                                                                     21                         is amended—
                                                                     22                                          (i) in paragraph (5), by striking the
                                                                     23                                  period at the end and inserting a semi-
                                                                     24                                  colon; and



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                                                                       1                                         (ii) by adding at the end the fol-
                                                                       2                                 lowing:
                                                                       3                        ‘‘(6) to misclassify an employee of the employer,
                                                                       4               who is engaged in commerce or an industry affecting
                                                                       5               commerce, as not an employee of the employer for
                                                                       6               purposes of this Act;’’.
                                                                       7                                 (B) INCORPORATION TO FURTHER VIOLA-
                                                                       8                        TIONS.—Section 8(a) of the National Labor Re-

                                                                       9                        lations Act (29 U.S.C. 158(a)), as amended by
                                                                     10                         subparagraph (A), is further amended by add-
                                                                     11                         ing at the end the following:
                                                                     12                         ‘‘(7) for the purpose, in whole or in part, of fa-
                                                                     13                cilitating, or evading detection of, a violation of this
                                                                     14                Act, including a violation of paragraph (6)—
                                                                     15                                  ‘‘(A) to incorporate or form, or assist in
                                                                     16                         the incorporation or formation of, a corpora-
                                                                     17                         tion, partnership, limited liability corporation,
                                                                     18                         or other entity; or
                                                                     19                                  ‘‘(B) to pay or collect a fee for use of a
                                                                     20                         foreign or domestic corporation, partnership,
                                                                     21                         limited liability corporation, or other entity;
                                                                     22                         or’’.
                                                                     23                                  (C) PENALTIES.—Section 12 of the Na-
                                                                     24                         tional Labor Relations Act (29 U.S.C. 162) is



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                                                                     25                         amended to read as follows:


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                                                                       1     ‘‘SEC. 12. PENALTIES.

                                                                       2               ‘‘(a) IN GENERAL.—Any person who shall willfully
                                                                       3 resist, prevent, impede, or interfere with any member of
                                                                       4 the Board or any of its agents or agencies in the perform-
                                                                       5 ance of duties pursuant to this Act shall be punished by
                                                                       6 a fine of not more than $5,000 or by imprisonment for
                                                                       7 not more than one year, or both.
                                                                       8               ‘‘(b) CIVIL PENALTIES FOR MISCLASSIFICATION OR
                                                                       9 INCORPORATION TO FURTHER VIOLATIONS.—
                                                                     10                         ‘‘(1) IN GENERAL.—Any person who violates
                                                                     11                paragraph (6) or (7) of section 8(a) shall be subject
                                                                     12                to a civil penalty of—
                                                                     13                                  ‘‘(A) subject to subparagraphs (B) and
                                                                     14                         (C), $10,000;
                                                                     15                                  ‘‘(B) if the violation is repeated or willful,
                                                                     16                         $30,000; or
                                                                     17                                  ‘‘(C) if the violation is widespread, 1 per-
                                                                     18                         cent of the net profits of the person for the year
                                                                     19                         in which the person had the highest net profits
                                                                     20                         out of all years in which the person was in such
                                                                     21                         violation.
                                                                     22                         ‘‘(2) REPEATED,                     OR       WILLFUL,             AND   WIDE-

                                                                     23                SPREAD VIOLATIONS.—If                            a violation of paragraph
                                                                     24                (6) or (7) of section 8(a) is repeated or willful, as




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                                                                     25                described in paragraph (1)(B), and is widespread, as
                                                                     26                described in paragraph (1)(C), the higher penalty of
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                                                                       1               the penalties described in such paragraphs shall
                                                                       2               apply.
                                                                       3                        ‘‘(3) PAYMENT OF PENALTIES.—Any penalty
                                                                       4               assessed under paragraph (1) for a violation of para-
                                                                       5               graph (6) or (7) of section 8(a) shall be paid from
                                                                       6               an account of the person in such violation and not
                                                                       7               paid, or reimbursed, by any insurance plan that
                                                                       8               would indemnify the person from violations of such
                                                                       9               paragraph (6) or (7), respectively. If a person re-
                                                                     10                ceives a payment from an insurance plan to indem-
                                                                     11                nify the person from a violation of such paragraph,
                                                                     12                the person shall transfer the payment to the Board,
                                                                     13                in addition to the amount to be paid from the ac-
                                                                     14                count of the person for the penalty.’’.
                                                                     15                         (4) PROTECTION                       FROM            RETALIATION        FOR

                                                                     16                BEING AN EMPLOYEE.—Section 8(a)(4) of the Na-

                                                                     17                tional Labor Relations Act (29 U.S.C. 158(a)(4)) is
                                                                     18                amended—
                                                                     19                                  (A) by striking ‘‘employee because he has
                                                                     20                         filed’’ and inserting ‘‘employee because—
                                                                     21                                  ‘‘(A) such employee has filed;’’;
                                                                     22                                  (B) by striking ‘‘Act;’’ and inserting ‘‘Act;
                                                                     23                         or’’; and
                                                                     24                                  (C) by adding at the end the following:



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                                                                     25                                  ‘‘(B) such employee—


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                                                                       1                                         ‘‘(i) is required, pursuant to the en-
                                                                       2                                 actment of the Worker Flexibility and
                                                                       3                                 Small Business Protection Act of 2020, to
                                                                       4                                 be classified as an employee of the em-
                                                                       5                                 ployer for purposes of this Act and not an
                                                                       6                                 independent contractor; and
                                                                       7                                         ‘‘(ii) was classified by the employer as
                                                                       8                                 an independent contractor prior to the date
                                                                       9                                 of enactment of the Worker Flexibility and
                                                                     10                                  Small Business Protection Act of 2020;’’.
                                                                     11                         (5) PRESUMPTION OF RETALIATION.—Section 8
                                                                     12                of the National Labor Relations Act (29 U.S.C.
                                                                     13                158) is amended by adding at the end the following:
                                                                     14                ‘‘(h) PRESUMPTION OF RETALIATION.—Any action
                                                                     15 taken against an employee within 90 days of the employee
                                                                     16 taking any action described in subsection (a)(4)(A), in-
                                                                     17 cluding taking any such action with respect to exercising
                                                                     18 the right of the employee pursuant to subsection (a)(6)
                                                                     19 to not be misclassified, shall establish a rebuttable pre-
                                                                     20 sumption that the action is discrimination against the em-
                                                                     21 ployee in violation of subsection (a)(4).’’.
                                                                     22                         (6)       STATUTORY                  EMPLOYERS                  IN      HEAVILY

                                                                     23                MISCLASSIFIED INDUSTRIES.—




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                                                                       1                                 (A) DEFINITION OF EMPLOYER.—Section
                                                                       2                        2(2) of the National Labor Relations Act (29
                                                                       3                        U.S.C. 152(2)) is amended to read as follows:
                                                                       4               ‘‘(2) EMPLOYER.—
                                                                       5                        ‘‘(A) IN GENERAL.—The term ‘employer’ in-
                                                                       6               cludes any person acting as an agent of an employer,
                                                                       7               directly or indirectly, but shall not include the
                                                                       8               United States or any wholly owned Government cor-
                                                                       9               poration, or any Federal Reserve Bank, or any State
                                                                     10                or political subdivision thereof, or any person subject
                                                                     11                to the Railway Labor Act, as amended from time to
                                                                     12                time, or any labor organization (other than when
                                                                     13                acting as an employer), or anyone acting in the ca-
                                                                     14                pacity of officer or agent of such labor organization.
                                                                     15                         ‘‘(B) STATUTORY EMPLOYERS IN CERTAIN IN-
                                                                     16                DUSTRIES.—The                    term ‘employer’ shall include any
                                                                     17                person (except a person described as excluded from
                                                                     18                the term under subparagraph (A)), with respect to
                                                                     19                an individual described in paragraph (3)(E) per-
                                                                     20                forming labor that is beneficial to the person, that
                                                                     21                is engaged in any of the following work:
                                                                     22                                  ‘‘(i) Transportation, including any person
                                                                     23                         that benefits from labor performed by individ-
                                                                     24                         uals in the form of transportation in a motor-



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                                                                     25                         ized or unmotorized vehicle, by foot, or by any


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                                                                       1                        other means, including transportation network
                                                                       2                        companies, technology platform companies, pas-
                                                                       3                        senger transportation or food transportation
                                                                       4                        companies, and cargo transportation companies.
                                                                       5                                 ‘‘(ii) Network dispatching, including any
                                                                       6                        person that uses a digital network to connect
                                                                       7                        individuals or entities seeking services or labor
                                                                       8                        with individuals or entities seeking to provide
                                                                       9                        services or labor, but not including any person
                                                                     10                         who owns, controls or manages—
                                                                     11                                          ‘‘(I) a completely neutral physical or
                                                                     12                                  internet marketplace where the procure-
                                                                     13                                  ment of goods or services takes place be-
                                                                     14                                  tween individuals who are completely inde-
                                                                     15                                  pendent from and free from any and all di-
                                                                     16                                  rection or control by the person owning,
                                                                     17                                  controlling, or managing the neutral mar-
                                                                     18                                  ketplace, including such person having ab-
                                                                     19                                  solutely no role in the setting of prices or
                                                                     20                                  rates, in the assignment or referral of re-
                                                                     21                                  quests for goods or services to individuals
                                                                     22                                  who could potentially provide such goods
                                                                     23                                  or services, and in the acceptance or rejec-
                                                                     24                                  tion of any requests for goods or services;



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                                                                     25                                  and


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                                                                       1                                         ‘‘(II) a labor organization hiring
                                                                       2                                 hall.’’.
                                                                       3                                 (B) DEFINITION OF EMPLOYEE.—Section
                                                                       4                        2(3) of the National Labor Relations Act (29
                                                                       5                        U.S.C. 152(3)), as amended by paragraph (2),
                                                                       6                        is further amended by adding at the end the
                                                                       7                        following:
                                                                       8               ‘‘(E) Notwithstanding subparagraphs (A) (except the
                                                                       9 second sentence of such subparagraph) and (B) of this
                                                                     10 paragraph or paragraph (2) (other than subparagraph (B)
                                                                     11 of such paragraph), and except as provided in the second
                                                                     12 sentence of such subparagraph (A), the term ‘employee’,
                                                                     13 with respect to an employer described in paragraph
                                                                     14 (2)(B), shall include any individual performing labor that
                                                                     15 is beneficial to the employer, including—
                                                                     16                         ‘‘(i) with respect to transportation described in
                                                                     17                clause (i) of such paragraph, any individual who per-
                                                                     18                forms any portion of the labor included under such
                                                                     19                clause, including individuals who perform labor in
                                                                     20                the form of engaging in transportation beneficial to
                                                                     21                transportation network companies, technology plat-
                                                                     22                form companies, passenger transportation or food
                                                                     23                transportation companies, or cargo transportation
                                                                     24                companies; and



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                                                                       1                        ‘‘(ii) with respect to network dispatching de-
                                                                       2               scribed in clause (ii) of such paragraph, any indi-
                                                                       3               vidual who performs any portion of the labor in-
                                                                       4               cluded under such clause, including providing the
                                                                       5               services or labor described in such clause to the indi-
                                                                       6               viduals or entities seeking such services or labor.’’.
                                                                       7                        (7)           MISCLASSIFICATION                                 ENFORCEMENT

                                                                       8               THROUGH              RECLASSIFICATION                      ORDERS            AND   STOP

                                                                       9               WORK ORDERS.—

                                                                     10                                  (A) IN GENERAL.—Section 10 of the Na-
                                                                     11                         tional Labor Relations Act (29 U.S.C. 160) is
                                                                     12                         amended by adding at the end the following:
                                                                     13                ‘‘(n) MISCLASSIFICATION ENFORCEMENT THROUGH
                                                                     14 RECLASSIFICATION ORDERS.—
                                                                     15                         ‘‘(1) IN GENERAL.—If a regional director, after
                                                                     16                an investigation under section 11, has reasonable
                                                                     17                cause to believe that an employer has misclassified
                                                                     18                1 or more individuals who are employees of the em-
                                                                     19                ployer as not employees in violation of section
                                                                     20                8(a)(6) and that, regardless of whether a charge has
                                                                     21                been or will be filed, if charged a complaint would
                                                                     22                issue—
                                                                     23                                  ‘‘(A) the regional director shall issue, not
                                                                     24                         later than 24 hours after making such deter-



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                                                                     25                         mination, an order against the employer requir-


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                                                                       1                        ing the employer to immediately classify the 1
                                                                       2                        or more individuals as employees of the em-
                                                                       3                        ployer; and
                                                                       4                                 ‘‘(B) the employer shall immediately com-
                                                                       5                        ply with the order issued under subparagraph
                                                                       6                        (A) or shall otherwise be in violation of section
                                                                       7                        8(a)(6).
                                                                       8                        ‘‘(2) ORDERS.—An order issued under para-
                                                                       9               graph (1) shall—
                                                                     10                                  ‘‘(A) be effective at the time at which the
                                                                     11                         order is served upon the employer, which may
                                                                     12                         be accomplished by the posting of a copy of the
                                                                     13                         order in a conspicuous location at the place of
                                                                     14                         business of the employer; and
                                                                     15                                  ‘‘(B) remain in effect during any review
                                                                     16                         conducted under paragraph (3) with respect to
                                                                     17                         such order and during any hearing and appeal
                                                                     18                         regarding such order under paragraph (4).
                                                                     19                         ‘‘(3) REVIEW FOR RECONSIDERATION.—
                                                                     20                                  ‘‘(A) IN GENERAL.—An employer against
                                                                     21                         whom an order is issued under paragraph (1)
                                                                     22                         may request a review for reconsideration with
                                                                     23                         the General Counsel to contest the order.
                                                                     24                                  ‘‘(B) REQUESTS.—A request under sub-



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                                                                     25                         paragraph (A) shall be made in writing to the


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                                                                       1                        General Counsel not more than 5 days after the
                                                                       2                        issuance of the order.
                                                                       3                                 ‘‘(C) REQUIREMENTS FOR REVIEW.—
                                                                       4                                         ‘‘(i) IN         GENERAL.—A                    review under
                                                                       5                                 this paragraph shall—
                                                                       6                                                  ‘‘(I) commence not later than 24
                                                                       7                                         hours after a request is made under
                                                                       8                                         subparagraph (B); and
                                                                       9                                                  ‘‘(II) conclude not later than 24
                                                                     10                                          hours after such commencement.
                                                                     11                                          ‘‘(ii)         DETERMINATION.—Not                      later
                                                                     12                                  than 72 hours after a review concludes
                                                                     13                                  under clause (i)(II), the General Counsel
                                                                     14                                  shall determine whether to affirm, modify,
                                                                     15                                  or revoke the contested order.
                                                                     16                         ‘‘(4) HEARINGS AND APPEALS.—Any person ag-
                                                                     17                grieved by a determination of the General Counsel
                                                                     18                under paragraph (3)(C)(ii) may—
                                                                     19                                  ‘‘(A) request a hearing on the merits be-
                                                                     20                         fore an Administrative Law Judge;
                                                                     21                                  ‘‘(B) appeal the determination of an Ad-
                                                                     22                         ministrative Law Judge under subparagraph
                                                                     23                         (A) to the Board; and
                                                                     24                                  ‘‘(C) appeal an order of the Board under



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                                                                     25                         subparagraph (B) to any court of appeals of the


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                                                                       1                        United States in the circuit wherein the
                                                                       2                        misclassification in question was alleged to have
                                                                       3                        been engaged in or wherein such person resides
                                                                       4                        or transacts business, or to the United States
                                                                       5                        Court of Appeals for the District of Columbia.
                                                                       6                        ‘‘(5) TEMPORARY                      RELIEF            OR        RESTRAINING

                                                                       7               ORDER.—The                    regional director issuing an order
                                                                       8               under paragraph (1) may seek, in any court de-
                                                                       9               scribed in paragraph (4)(C) against an employer
                                                                     10                that violates an order issued under paragraph (1),
                                                                     11                temporary relief or a restraining order to bring the
                                                                     12                employer into compliance with such order issued
                                                                     13                under paragraph (1). A court shall issue such tem-
                                                                     14                porary relief or restraining order if the regional di-
                                                                     15                rector has demonstrated it is just and proper.
                                                                     16                         ‘‘(6) SUCCESSFULLY DISPROVING OCCURRENCE
                                                                     17                OF MISCLASSIFICATION.—

                                                                     18                                  ‘‘(A) IN GENERAL.—If an employer with
                                                                     19                         respect to whom an order was issued under
                                                                     20                         paragraph (1) successfully proves through a re-
                                                                     21                         view under paragraph (3), or a subsequent
                                                                     22                         hearing or appeals proceeding under paragraph
                                                                     23                         (4), that the 1 or more individuals who were
                                                                     24                         the subject of the order were not misclassified



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                                                                     25                         in violation of section 8(a)(6)—


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                                                                       1                                         ‘‘(i) the order issued under paragraph
                                                                       2                                 (1) shall cease to be in effect;
                                                                       3                                         ‘‘(ii) the employer shall not be liable
                                                                       4                                 for any applicable back pay, damages, or
                                                                       5                                 civil penalties owed by the employer under
                                                                       6                                 this          Act           with            respect             to   the
                                                                       7                                 misclassification of such 1 or more individ-
                                                                       8                                 uals; and
                                                                       9                                         ‘‘(iii) the General Counsel, the Admin-
                                                                     10                                  istrative Law Judge, the Board, or the
                                                                     11                                  court (as applicable) shall award (and the
                                                                     12                                  Secretary of the Treasury shall, in accord-
                                                                     13                                  ance with subparagraph (B), pay) to the
                                                                     14                                  employer reasonable fees and expenses of
                                                                     15                                  attorneys in the same manner as such fees
                                                                     16                                  and expenses could be awarded under sec-
                                                                     17                                  tion 2412 of title 28, United States Code,
                                                                     18                                  if the employer was a prevailing party and
                                                                     19                                  the review, hearing, or appeals proceeding
                                                                     20                                  was a civil action brought by or against the
                                                                     21                                  United States.
                                                                     22                                  ‘‘(B) SOURCE OF FUNDS.—The Secretary
                                                                     23                         of the Treasury shall, upon notification by the
                                                                     24                         General              Counsel,          the        Administrative              Law



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                                                                     25                         Judge, the Board, or the court, as applicable,


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                                                                       1                        pay any fees or expenses awarded under sub-
                                                                       2                        paragraph (A)(iii) from amounts in the general
                                                                       3                        fund of the Treasury.
                                                                       4               ‘‘(o) MISCLASSIFICATION ENFORCEMENT THROUGH
                                                                       5 STOP WORK ORDERS.—
                                                                       6                        ‘‘(1) IN GENERAL.—In any case where a re-
                                                                       7               gional director has reasonable cause to believe that
                                                                       8               an employer has not complied with a reclassification
                                                                       9               order issued by a regional director under subsection
                                                                     10                (n)(1), with respect to 2 or more individuals who are
                                                                     11                misclassified, within 30 days of being served with
                                                                     12                the order, the regional director shall issue—
                                                                     13                                  ‘‘(A) subject to subparagraph (B), an
                                                                     14                         order against the employer requiring the ces-
                                                                     15                         sation of all business operations of such em-
                                                                     16                         ployer at the location of the violation; or
                                                                     17                                  ‘‘(B) if an order described in subparagraph
                                                                     18                         (A) has been previously issued against the em-
                                                                     19                         ployer by any Federal, State, or local agency
                                                                     20                         for misclassifying an employee as not an em-
                                                                     21                         ployee in violation of section 8(a)(6), or an
                                                                     22                         equivalent State or local law as determined by
                                                                     23                         the General Counsel, an order against the em-
                                                                     24                         ployer requiring the cessation of all business op-



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                                                                     25                         erations of such employer at all business loca-


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                                                                       1                        tions of the employer, including locations other
                                                                       2                        than the location where the misclassification oc-
                                                                       3                        curred.
                                                                       4                        ‘‘(2) ORDERS.—
                                                                       5                                 ‘‘(A) APPLICABILITY.—An order issued
                                                                       6                        under paragraph (1) shall—
                                                                       7                                         ‘‘(i) be effective at the time at which
                                                                       8                                 the order is served upon the employer,
                                                                       9                                 which may be accomplished by the posting
                                                                     10                                  of a copy of the order in a conspicuous lo-
                                                                     11                                  cation at the place of business of the em-
                                                                     12                                  ployer; and
                                                                     13                                          ‘‘(ii) remain in effect—
                                                                     14                                                   ‘‘(I) during any review under
                                                                     15                                          paragraph (3) with respect to such
                                                                     16                                          order or hearing and appeal of such
                                                                     17                                          order under paragraph (4); and
                                                                     18                                                   ‘‘(II) until the regional director
                                                                     19                                          issues a release order under subpara-
                                                                     20                                          graph (B).
                                                                     21                                  ‘‘(B) RELEASE ORDERS.—
                                                                     22                                          ‘‘(i) IN GENERAL.—An order issued
                                                                     23                                  under paragraph (1) (that is not revoked
                                                                     24                                  by the General Counsel or the Board or



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                                                                     25                                  held unlawful or set aside by a court) shall


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                                                                       1                                 remain in effect until the regional director
                                                                       2                                 issues another order releasing the order
                                                                       3                                 issued under paragraph (1) upon a finding
                                                                       4                                 by the regional director that the em-
                                                                       5                                 ployer—
                                                                       6                                                  ‘‘(I) has corrected the violation of
                                                                       7                                         section 8(a)(6) with respect to the 2
                                                                       8                                         or       more              individuals            who   were
                                                                       9                                         misclassified resulting in the order;
                                                                     10                                          and
                                                                     11                                                   ‘‘(II) has agreed to a payment
                                                                     12                                          schedule for all applicable back pay,
                                                                     13                                          damages, and civil penalties owed by
                                                                     14                                          the employer under this Act.
                                                                     15                                          ‘‘(ii) REINSTATEMENT.—If, at any
                                                                     16                                  time after the regional director issues a re-
                                                                     17                                  lease order under clause (i), the employer
                                                                     18                                  fails to comply with the terms of the pay-
                                                                     19                                  ment schedule described in clause (i)(II),
                                                                     20                                  the regional director shall reinstate the
                                                                     21                                  order issued under paragraph (1) until the
                                                                     22                                  employer is in compliance with such terms.
                                                                     23                         ‘‘(3) REVIEW FOR RECONSIDERATION.—
                                                                     24                                  ‘‘(A) IN GENERAL.—An employer against



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                                                                     25                         whom an order is issued under paragraph (1)


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                                                                       1                        may request a review for reconsideration by the
                                                                       2                        General Counsel to contest the order.
                                                                       3                                 ‘‘(B) REQUESTS.—A request under sub-
                                                                       4                        paragraph (A) shall be made in writing to the
                                                                       5                        General Counsel not more than 5 days after the
                                                                       6                        issuance of the order.
                                                                       7                                 ‘‘(C) REQUIREMENTS FOR REVIEW.—
                                                                       8                                         ‘‘(i) IN         GENERAL.—A                    review under
                                                                       9                                 this paragraph shall—
                                                                     10                                                   ‘‘(I) commence not later than 24
                                                                     11                                          hours after a request is made under
                                                                     12                                          subparagraph (B); and
                                                                     13                                                   ‘‘(II) conclude not later than 24
                                                                     14                                          hours after such commencement.
                                                                     15                                          ‘‘(ii)         DETERMINATION.—Not                      later
                                                                     16                                  than 72 hours after a review concludes
                                                                     17                                  under clause (i)(II), the General Counsel
                                                                     18                                  shall determine whether to affirm, modify,
                                                                     19                                  or revoke the contested order.
                                                                     20                         ‘‘(4) HEARINGS AND APPEALS.—Any person ag-
                                                                     21                grieved by a determination of the General Counsel
                                                                     22                under paragraph (3)(C)(ii) may—
                                                                     23                                  ‘‘(A) request a hearing on the merits be-
                                                                     24                         fore an Administrative Law Judge;



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                                                                       1                                 ‘‘(B) appeal a determination by an Admin-
                                                                       2                        istrative Law Judge under subparagraph (A) to
                                                                       3                        the Board; and
                                                                       4                                 ‘‘(C) appeal an order of the Board under
                                                                       5                        subparagraph (B) to any court of appeals of the
                                                                       6                        United States in the circuit wherein the
                                                                       7                        misclassification in question was alleged to have
                                                                       8                        been engaged in or wherein such person resides
                                                                       9                        or transacts business, or to the United States
                                                                     10                         Court of Appeals for the District of Columbia.
                                                                     11                         ‘‘(5) TEMPORARY RELIEF OR RESTRAINING OR-
                                                                     12                DERS.—The regional director may seek, in any court

                                                                     13                described in paragraph (4)(C) against an employer
                                                                     14                that violates an order issued under paragraph (1),
                                                                     15                temporary relief or a restraining order to bring the
                                                                     16                employer into compliance with such order. A court
                                                                     17                shall issue such temporary relief or restraining order
                                                                     18                if the regional director has demonstrated it is just
                                                                     19                and proper.
                                                                     20                         ‘‘(6) COMPENSATION FOR LOST WORK.—
                                                                     21                                  ‘‘(A) IN GENERAL.—Subject to subpara-
                                                                     22                         graph (B), an employer with respect to whom
                                                                     23                         an order is issued under paragraph (1) shall
                                                                     24                         pay each employee of the employer, who loses



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                                                                     25                         compensation due to the work of such employee


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                                                                       1                        ceasing as a result of such order, the compensa-
                                                                       2                        tion that would be owed to such employee if the
                                                                       3                        order was not issued.
                                                                       4                                 ‘‘(B)        LIMITATION.—Compensation                          paid
                                                                       5                        under subparagraph (A) shall be for each day,
                                                                       6                        not to exceed 10 days, for which the employee
                                                                       7                        would be paid if the order described in such
                                                                       8                        subparagraph were not in effect.
                                                                       9                        ‘‘(7) SUCCESSFULLY DISPROVING OCCURRENCE
                                                                     10                OF MISCLASSIFICATION.—

                                                                     11                                  ‘‘(A) IN GENERAL.—In any case where an
                                                                     12                         employer with respect to whom an order was
                                                                     13                         issued under paragraph (1) successfully proves,
                                                                     14                         through a review under paragraph (3) or a sub-
                                                                     15                         sequent hearing or appeals proceeding under
                                                                     16                         paragraph (4), that the 2 or more individuals
                                                                     17                         who were the subject of the order were not
                                                                     18                         misclassified in violation of section 8(a)(6)—
                                                                     19                                          ‘‘(i) the order issued under paragraph
                                                                     20                                  (1), and any order issued against the em-
                                                                     21                                  ployer under subsection (n)(1) with respect
                                                                     22                                  to such 2 or more individuals, shall cease
                                                                     23                                  to be in effect;
                                                                     24                                          ‘‘(ii) the employer shall not be liable



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                                                                     25                                  for any applicable back pay, damages, or


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                                                                       1                                 civil penalties owed by the employer under
                                                                       2                                 this         Act           with            respect             to   the
                                                                       3                                 misclassification of such 2 or more individ-
                                                                       4                                 uals; and
                                                                       5                                         ‘‘(iii) the General Counsel, the Admin-
                                                                       6                                 istrative Law Judge, the Board, or the
                                                                       7                                 court, as applicable, shall award (and the
                                                                       8                                 Secretary of the Treasury shall, in accord-
                                                                       9                                 ance with subparagraph (B), pay) to the
                                                                     10                                  employer—
                                                                     11                                                   ‘‘(I) the amount equal to any de-
                                                                     12                                          monstrable lost net profits resulting
                                                                     13                                          from the order, as demonstrated by
                                                                     14                                          clear and convincing evidence; and
                                                                     15                                                   ‘‘(II) reasonable fees and ex-
                                                                     16                                          penses of attorneys in the same man-
                                                                     17                                          ner as such fees and expenses could
                                                                     18                                          be awarded under section 2412 of title
                                                                     19                                          28, United States Code, if the em-
                                                                     20                                          ployer was a prevailing party and the
                                                                     21                                          review, hearing, or appeals proceeding
                                                                     22                                          was a civil action brought by or
                                                                     23                                          against the United States.
                                                                     24                                  ‘‘(B) SOURCE OF FUNDS.—The Secretary



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                                                                     25                         of the Treasury shall, upon notification by the


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                                                                       1                        General              Counsel,          the        Administrative             Law
                                                                       2                        Judge, the Board, or the court, as applicable,
                                                                       3                        pay any amounts, fees, or expenses awarded
                                                                       4                        under subparagraph (A)(iii) from amounts
                                                                       5                        available in the general fund of the Treasury.’’.
                                                                       6                                 (B) PENALTIES.—Section 12 of the Na-
                                                                       7                        tional Labor Relations Act (29 U.S.C. 162), as
                                                                       8                        amended by paragraph (3)(C), is further
                                                                       9                        amended by adding at the end the following:
                                                                     10                ‘‘(c) PENALTIES FOR VIOLATIONS OF RECLASSIFICA-
                                                                     11      TION ORDERS.—

                                                                     12                         ‘‘(1) CIVIL PENALTIES.—Any person who vio-
                                                                     13                lates a reclassification order issued by a regional di-
                                                                     14                rector under section 10(n)(1) shall be subject to a
                                                                     15                civil penalty of not less than $5,000 per day, with
                                                                     16                each day constituting a separate offense.
                                                                     17                         ‘‘(2) ADDITIONAL                        DAMAGES.—In                      any case
                                                                     18                where an employer contests a reclassification order
                                                                     19                issued by a regional director under paragraph (1) of
                                                                     20                section 10(n) in a review under paragraph (3) of
                                                                     21                such section, a hearing under paragraph (4)(A) of
                                                                     22                such section, an appeal to the Board under para-
                                                                     23                graph (4)(B) of such section, and a subsequent judi-
                                                                     24                cial proceeding under paragraph (4)(C) of such sec-



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                                                                       1               tion and a court rules in favor of the regional direc-
                                                                       2               tor—
                                                                       3                                 ‘‘(A) the court shall determine if, during
                                                                       4                        the period between the issuance of the order
                                                                       5                        and the conclusion of the proceeding, the em-
                                                                       6                        ployer violated such order by not classifying the
                                                                       7                        1 or more individuals as employees during that
                                                                       8                        period; and
                                                                       9                                 ‘‘(B) if the court determines the employer
                                                                     10                         so violated the order during that period—
                                                                     11                                          ‘‘(i) the court shall determine the
                                                                     12                                  amount of net profits derived by the em-
                                                                     13                                  ployer from the individuals’ labor during
                                                                     14                                  that period; and
                                                                     15                                          ‘‘(ii) the court shall assess damages in
                                                                     16                                  the amount determined under clause (i),
                                                                     17                                  which damages shall be awarded to such
                                                                     18                                  individuals by the court.’’.
                                                                     19                (c) OCCUPATIONAL SAFETY AND HEALTH ACT OF
                                                                     20 1970.—
                                                                     21                         (1) STRENGTHENING EMPLOYEE TEST.—Sec-
                                                                     22                tion 3(6) of the Occupational Safety and Health Act
                                                                     23                of 1970 (29 U.S.C. 652(6)) is amended—
                                                                     24                                  (A) by striking ‘‘The term’’ and inserting



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                                                                     25                         ‘‘(A) The term’’; and


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                                                                       1                                 (B) by adding at the end the following:
                                                                       2                        ‘‘(B)(i) For purposes of this Act, including any
                                                                       3               standard, rule, regulation, or order promulgated pur-
                                                                       4               suant to this Act, except as provided in subpara-
                                                                       5               graphs (C) and (E), an individual performing any
                                                                       6               labor for remuneration for a person shall be an em-
                                                                       7               ployee employed by such person and not an inde-
                                                                       8               pendent contractor of the person, unless—
                                                                       9                                 ‘‘(I) the individual is free from control and
                                                                     10                         direction in connection with the performance of
                                                                     11                         the labor, both under the contract for the per-
                                                                     12                         formance of the labor and in fact;
                                                                     13                                  ‘‘(II) the labor is performed outside the
                                                                     14                         usual course of the business of the person; and
                                                                     15                                  ‘‘(III) the individual is customarily en-
                                                                     16                         gaged in an independently established trade, oc-
                                                                     17                         cupation, profession, or business of the same
                                                                     18                         nature as that involved in the labor performed.
                                                                     19                         ‘‘(ii) Clause (i) is not a codification of the com-
                                                                     20                mon law and shall not be interpreted to reflect, or
                                                                     21                to be limited or restricted by, common law interpre-
                                                                     22                tations regarding when an individual is an employee
                                                                     23                of another person. Clause (i) shall be considered
                                                                     24                complete as written, and any judicial or agency in-



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                                                                       1               terpretation of such clause shall be limited to the ex-
                                                                       2               plicit requirements of such clause.
                                                                       3                        ‘‘(iii) The requirements of clause (i) shall not be
                                                                       4               in any way affected by any agreement, written or
                                                                       5               otherwise, that purports to demonstrate an individ-
                                                                       6               ual’s acknowledgment of or acquiescence to the ab-
                                                                       7               sence of an employer-employee relationship with a
                                                                       8               particular employer.
                                                                       9                        ‘‘(C)(i) Notwithstanding any contrary provi-
                                                                     10                sions in this paragraph or paragraph (5), in any in-
                                                                     11                stance in which there is a non-compete agreement
                                                                     12                between a person and an individual who performs
                                                                     13                labor for such person, the presence of the non-com-
                                                                     14                pete agreement, without regard to the legality or en-
                                                                     15                forceability of the non-compete agreement, shall be
                                                                     16                evidence of control for purposes of subparagraph
                                                                     17                (B)(i)(I), but shall not by itself establish an employ-
                                                                     18                ment relationship between such person and the indi-
                                                                     19                vidual.
                                                                     20                         ‘‘(ii) In this subparagraph, the term ‘non-com-
                                                                     21                pete agreement’ means an agreement between a per-
                                                                     22                son and an individual who performs labor for such
                                                                     23                person that restricts the individual from performing,
                                                                     24                either during or after the individual performs labor



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                                                                     25                for such person—


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                                                                       1                                 ‘‘(I) any labor for another person;
                                                                       2                                 ‘‘(II) any labor for a specified period of
                                                                       3                        time;
                                                                       4                                 ‘‘(III) any labor in a specified geographical
                                                                       5                        area; or
                                                                       6                                 ‘‘(IV) any labor for another person that is
                                                                       7                        similar to the labor such individual performed
                                                                       8                        for the person that is a party to such agree-
                                                                       9                        ment.’’.
                                                                     10                         (2) PRESUMPTION                       OF EMPLOYEE STATUS.—

                                                                     11                Section 3(6) of the Occupational Safety and Health
                                                                     12                Act of 1970 (29 U.S.C. 652(6)), as amended by
                                                                     13                paragraph (1), is further amended by adding at the
                                                                     14                end the following:
                                                                     15                         ‘‘(D) For purposes of this Act, including any
                                                                     16                standard, rule, regulation, or order promulgated pur-
                                                                     17                suant to this Act, an individual performing any labor
                                                                     18                for remuneration for a person shall be presumed to
                                                                     19                be an employee of the person, unless the party seek-
                                                                     20                ing to assert otherwise establishes by clear and con-
                                                                     21                vincing evidence that the individual is not an em-
                                                                     22                ployee in accordance with this paragraph.’’.
                                                                     23                         (3) MISCLASSIFICATION AS A STANDALONE VIO-
                                                                     24                LATION.—




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                                                                       1                                 (A) IN GENERAL.—Section 5(a) of the Oc-
                                                                       2                        cupational Safety and Health Act of 1970 (29
                                                                       3                        U.S.C. 654(a)) is amended—
                                                                       4                                         (i) in paragraph (2), by striking the
                                                                       5                                 period at the end and inserting a semi-
                                                                       6                                 colon; and
                                                                       7                                         (ii) by adding at the end the fol-
                                                                       8                                 lowing:
                                                                       9                        ‘‘(3) shall not misclassify an employee of the
                                                                     10                employer as not an employee of the employer for
                                                                     11                purposes of this Act, including any standard, rule,
                                                                     12                regulation, or order promulgated pursuant to this
                                                                     13                Act; and’’.
                                                                     14                                  (B) INCORPORATION TO FURTHER VIOLA-
                                                                     15                         TIONS.—Section 5(a) of the Occupational Safe-

                                                                     16                         ty and Health Act of 1970 (29 U.S.C. 654(a)),
                                                                     17                         as amended by subparagraph (A), is further
                                                                     18                         amended by adding at the end the following:
                                                                     19                         ‘‘(4) shall not, for the purpose, in whole or in
                                                                     20                part, of facilitating, or evading detection of, a viola-
                                                                     21                tion of this Act, including a violation of paragraph
                                                                     22                (3) or any standard, rule, regulation, or order pro-
                                                                     23                mulgated pursuant to this Act—
                                                                     24                                  ‘‘(A) incorporate or form, or assist in the



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                                                                     25                         incorporation or formation of, a corporation,


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                                                                       1                        partnership, limited liability corporation, or
                                                                       2                        other entity; or
                                                                       3                                 ‘‘(B) pay or collect a fee for use of a for-
                                                                       4                        eign or domestic corporation, partnership, lim-
                                                                       5                        ited liability corporation, or other entity.’’.
                                                                       6                                 (C) PENALTIES.—Section 17 of the Occu-
                                                                       7                        pational Safety and Health Act of 1970 (29
                                                                       8                        U.S.C. 666) is amended—
                                                                       9                                         (i) by redesignating subsections (j),
                                                                     10                                  (k), and (l) as subsections (o), (p), and (q),
                                                                     11                                  respectively; and
                                                                     12                                          (ii) by inserting after subsection (i)
                                                                     13                                  the following:
                                                                     14                ‘‘(j) CIVIL PENALTIES FOR MISCLASSIFICATION OR
                                                                     15 INCORPORATION TO FURTHER VIOLATIONS.—
                                                                     16                         ‘‘(1) IN GENERAL.—Any person who violates
                                                                     17                paragraph (3) or (4) of section 5(a) shall be subject
                                                                     18                to a civil penalty of—
                                                                     19                                  ‘‘(A) subject to subparagraphs (B) and
                                                                     20                         (C), $10,000;
                                                                     21                                  ‘‘(B) if the violation is repeated or willful,
                                                                     22                         $30,000; or
                                                                     23                                  ‘‘(C) if the violation is widespread, 1 per-
                                                                     24                         cent of the net profits of the person for the year



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                                                                     25                         in which the person had the highest net profits


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                                                                       1                        out of all years in which the person was in such
                                                                       2                        violation.
                                                                       3                        ‘‘(2) REPEATED,                     OR       WILLFUL,             AND   WIDE-

                                                                       4               SPREAD VIOLATIONS.—If                            a violation of paragraph
                                                                       5               (3) or (4) of section 5(a) is repeated or willful, as
                                                                       6               described in paragraph (1)(B), and is widespread, as
                                                                       7               described in paragraph (1)(C), the higher penalty of
                                                                       8               the penalties described in such paragraphs shall
                                                                       9               apply.
                                                                     10                         ‘‘(3) PAYMENT OF PENALTIES.—Any penalty
                                                                     11                assessed under paragraph (1) for a violation of para-
                                                                     12                graph (3) or (4) of section 5(a) shall be paid from
                                                                     13                an account of the person in such violation and not
                                                                     14                paid, or reimbursed, by any insurance plan that
                                                                     15                would indemnify the person from violations of such
                                                                     16                paragraph (3) or (4), respectively. If a person re-
                                                                     17                ceives a payment from an insurance plan to indem-
                                                                     18                nify the person from a violation of such paragraph,
                                                                     19                the person shall transfer the payment to the Sec-
                                                                     20                retary, in addition to the amount to be paid from
                                                                     21                the account of the person for the penalty.’’.
                                                                     22                         (4) PROTECTION                       FROM            RETALIATION         FOR

                                                                     23                BEING AN EMPLOYEE.—Section 11(c)(1) of the Oc-

                                                                     24                cupational Safety and Health Act of 1970 (29



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                                                                     25                U.S.C. 660(c)(1)) is amended—


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                                                                       1                                 (A) by striking ‘‘because such employee’’
                                                                       2                        and inserting ‘‘because—
                                                                       3                                 ‘‘(A) such employee;’’;
                                                                       4                                 (B) by striking ‘‘afforded by this Act.’’ and
                                                                       5                        inserting ‘‘afforded by this Act; or’’; and
                                                                       6                                 (C) by adding at the end the following:
                                                                       7                                 ‘‘(B) such employee—
                                                                       8                                         ‘‘(i) is required, pursuant to the en-
                                                                       9                                 actment of the Worker Flexibility and
                                                                     10                                  Small Business Protection Act of 2020, to
                                                                     11                                  be classified as an employee of the person
                                                                     12                                  for purposes of this Act, including any
                                                                     13                                  standard, rule, regulation, or order pro-
                                                                     14                                  mulgated pursuant to this Act, and not an
                                                                     15                                  independent contractor; and
                                                                     16                                          ‘‘(ii) was classified by the person as
                                                                     17                                  an independent contractor prior to the date
                                                                     18                                  of enactment of the Worker Flexibility and
                                                                     19                                  Small Business Protection Act of 2020.’’.
                                                                     20                         (5) RULES REGARDING UNLAWFUL DISCHARGE
                                                                     21                OR DISCRIMINATION.—Section 11(c) of the Occupa-

                                                                     22                tional Safety and Health Act of 1970 (29 U.S.C.
                                                                     23                660(c)) is amended by adding at the end the fol-
                                                                     24                lowing:



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                                                                       1                        ‘‘(4) PRESUMPTION OF RETALIATION.—Any ac-
                                                                       2               tion taken by a person described in paragraph
                                                                       3               (1)(A) against an employee within 90 days of the
                                                                       4               employee taking any action described in such para-
                                                                       5               graph, including taking any such action with respect
                                                                       6               to exercising the right of the employee pursuant to
                                                                       7               section 5(a)(3) to not be misclassified, shall establish
                                                                       8               a rebuttable presumption that the action is discrimi-
                                                                       9               nation against the employee in violation of para-
                                                                     10                graph (1).
                                                                     11                         ‘‘(5)       MOTIVATING                  FACTOR.—Unlawful                    dis-
                                                                     12                charge or other discrimination against an employee
                                                                     13                under paragraph (1) is established when the com-
                                                                     14                plaining party demonstrates that one of the actions
                                                                     15                or the classification described in such paragraph was
                                                                     16                a motivating factor for such discharge or other dis-
                                                                     17                crimination, even if such discharge or other discrimi-
                                                                     18                nation was also motivated by other factors.’’.
                                                                     19                         (6)       STATUTORY                  EMPLOYERS                  IN      HEAVILY

                                                                     20                MISCLASSIFIED INDUSTRIES.—

                                                                     21                                  (A) DEFINITION OF EMPLOYER.—Section
                                                                     22                         3(5) of the Occupational Safety and Health Act
                                                                     23                         of 1970 (29 U.S.C. 652(5)) is amended to read
                                                                     24                         as follows:



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                                                                     25                ‘‘(5) EMPLOYER.—


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                                                                       1                        ‘‘(A) IN GENERAL.—The term ‘employer’ means
                                                                       2               a person engaged in a business affecting commerce
                                                                       3               who has employees.
                                                                       4                        ‘‘(B) EXCLUSION.—The term ‘employer’ does
                                                                       5               not include the United States (not including the
                                                                       6               United States Postal Service) or any State or polit-
                                                                       7               ical subdivision of a State.
                                                                       8                        ‘‘(C) STATUTORY EMPLOYERS IN CERTAIN IN-
                                                                       9               DUSTRIES.—The                    term ‘employer’ shall include any
                                                                     10                person (except as provided in subparagraph (B)),
                                                                     11                with respect to an individual described in paragraph
                                                                     12                (6)(E) performing labor that is beneficial to the per-
                                                                     13                son, that is engaged in any of the following work:
                                                                     14                                  ‘‘(i) Transportation, including any person
                                                                     15                         that benefits from labor performed by individ-
                                                                     16                         uals in the form of transportation in a motor-
                                                                     17                         ized or unmotorized vehicle, by foot, or by any
                                                                     18                         other means, including transportation network
                                                                     19                         companies, technology platform companies, pas-
                                                                     20                         senger transportation or food transportation
                                                                     21                         companies, and cargo transportation companies.
                                                                     22                                  ‘‘(ii) Network dispatching, including any
                                                                     23                         person that uses a digital network to connect
                                                                     24                         individuals or entities seeking services or labor



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                                                                       1                        services or labor, but not including any person
                                                                       2                        who owns, controls, or manages—
                                                                       3                                         ‘‘(I) a completely neutral physical or
                                                                       4                                 internet marketplace where the procure-
                                                                       5                                 ment of goods or services takes place be-
                                                                       6                                 tween individuals who are completely inde-
                                                                       7                                 pendent from and free from any and all di-
                                                                       8                                 rection or control by the person owning,
                                                                       9                                 controlling, or managing the neutral mar-
                                                                     10                                  ketplace, including such person having ab-
                                                                     11                                  solutely no role in the setting of prices or
                                                                     12                                  rates, in the assignment or referral of re-
                                                                     13                                  quests for goods or services to individuals
                                                                     14                                  who could potentially provide such goods
                                                                     15                                  or services, and in the acceptance or rejec-
                                                                     16                                  tion of any requests for goods or services;
                                                                     17                                  and
                                                                     18                                          ‘‘(II) a labor organization hiring
                                                                     19                                  hall.’’.
                                                                     20                                  (B) DEFINITION OF EMPLOYEE.—Section
                                                                     21                         3(6) of the Occupational Safety and Health Act
                                                                     22                         of 1970 (29 U.S.C. 652(6)), as amended by
                                                                     23                         paragraph (2), is further amended by adding at
                                                                     24                         the end the following:



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                                                                       1               ‘‘(E) Notwithstanding subparagraphs (A) and (B) of
                                                                       2 this paragraph or paragraph (5) (other than subparagraph
                                                                       3 (C) of such paragraph), the term ‘employee’, with respect
                                                                       4 to an employer described in paragraph (5)(C), shall in-
                                                                       5 clude any individual performing labor that is beneficial to
                                                                       6 the employer, including—
                                                                       7                        ‘‘(i) with respect to transportation described in
                                                                       8               clause (i) of such paragraph, any individual who per-
                                                                       9               forms any portion of the labor included under such
                                                                     10                clause, including individuals who perform labor in
                                                                     11                the form of engaging in transportation beneficial to
                                                                     12                transportation network companies, technology plat-
                                                                     13                form companies, passenger transportation or food
                                                                     14                transportation companies, or cargo transportation
                                                                     15                companies; and
                                                                     16                         ‘‘(ii) with respect to network dispatching de-
                                                                     17                scribed in clause (ii) of such paragraph, any indi-
                                                                     18                vidual who performs any portion of the labor in-
                                                                     19                cluded under such clause, including providing the
                                                                     20                services or labor described in such clause to the indi-
                                                                     21                viduals or entities seeking such services or labor.’’.
                                                                     22                         (7)           MISCLASSIFICATION                                 ENFORCEMENT

                                                                     23                THROUGH              RECLASSIFICATION                      ORDERS            AND   STOP

                                                                     24                WORK ORDERS.—




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                                                                       1                                 (A) IN GENERAL.—The Occupational Safe-
                                                                       2                        ty and Health Act of 1970 (29 U.S.C. 651 et
                                                                       3                        seq.) is amended by inserting after section 13
                                                                       4                        (29 U.S.C. 662) the following:
                                                                       5     ‘‘SEC. 13A. MISCLASSIFICATION ENFORCEMENT THROUGH

                                                                       6                             RECLASSIFICATION                          ORDERS              AND   STOP

                                                                       7                             WORK ORDERS.

                                                                       8               ‘‘(a) RECLASSIFICATION ORDERS.—
                                                                       9                        ‘‘(1) IN             GENERAL.—If                the Secretary deter-
                                                                     10                mines, after an investigation under section 8, that
                                                                     11                an employer has misclassified 1 or more individuals
                                                                     12                who are employees of the employer as not employees
                                                                     13                in violation of section 5(a)(3)—
                                                                     14                                  ‘‘(A) the Secretary shall issue, not later
                                                                     15                         than 24 hours after making such determination,
                                                                     16                         an order against the employer requiring the em-
                                                                     17                         ployer to immediately classify the 1 or more in-
                                                                     18                         dividuals as employees of the employer; and
                                                                     19                                  ‘‘(B) the employer shall immediately com-
                                                                     20                         ply with the order issued under subparagraph
                                                                     21                         (A) or shall otherwise be in violation of section
                                                                     22                         5(a)(3).
                                                                     23                         ‘‘(2) ORDERS.—An order issued under para-
                                                                     24                graph (1) shall—



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                                                                       1                                 ‘‘(A) be effective at the time at which the
                                                                       2                        order is served upon the employer, which may
                                                                       3                        be accomplished by the posting of a copy of the
                                                                       4                        order in a conspicuous location at the place of
                                                                       5                        business of the employer; and
                                                                       6                                 ‘‘(B) remain in effect during any review
                                                                       7                        conducted under paragraph (3) with respect to
                                                                       8                        such order and during any hearing and appeal
                                                                       9                        of such order under paragraph (4).
                                                                     10                         ‘‘(3) REVIEW FOR RECONSIDERATION.—
                                                                     11                                  ‘‘(A) IN GENERAL.—An employer against
                                                                     12                         whom an order is issued under paragraph (1)
                                                                     13                         may request a review by the Secretary to con-
                                                                     14                         test the order.
                                                                     15                                  ‘‘(B) REQUESTS.—A request under sub-
                                                                     16                         paragraph (A) shall be made in writing to the
                                                                     17                         Secretary not more than 5 days after the
                                                                     18                         issuance of the order.
                                                                     19                                  ‘‘(C) REQUIREMENTS FOR REVIEW.—
                                                                     20                                          ‘‘(i) IN         GENERAL.—A                    review under
                                                                     21                                  this paragraph shall—
                                                                     22                                                   ‘‘(I) commence not later than 24
                                                                     23                                          hours after a request is made under
                                                                     24                                          subparagraph (B); and



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                                                                       1                                                  ‘‘(II) conclude not later than 24
                                                                       2                                         hours after such commencement.
                                                                       3                                         ‘‘(ii)         DETERMINATION.—Not                          later
                                                                       4                                 than 72 hours after a review concludes
                                                                       5                                 under clause (i)(II), the Secretary shall de-
                                                                       6                                 termine whether to affirm, modify, or re-
                                                                       7                                 voke the contested order.
                                                                       8                        ‘‘(4) HEARINGS AND APPEALS.—Any person ag-
                                                                       9               grieved by a determination of the Secretary under
                                                                     10                paragraph (3)(C)(ii) may—
                                                                     11                                  ‘‘(A) request a hearing to appeal such de-
                                                                     12                         termination to an administrative law judge; and
                                                                     13                                  ‘‘(B) appeal an order of an administrative
                                                                     14                         law judge under subparagraph (A) to any
                                                                     15                         United States court of appeals for the circuit in
                                                                     16                         which the violation is alleged to have occurred
                                                                     17                         or where the employer has its principal office,
                                                                     18                         or in the Court of Appeals for the District of
                                                                     19                         Columbia Circuit.
                                                                     20                         ‘‘(5) APPROPRIATE                           RELIEF.—The                 Secretary
                                                                     21                may seek appropriate relief, in a court described in
                                                                     22                paragraph (4)(B), to restrain any employer that vio-
                                                                     23                lates an order issued under paragraph (1). A court
                                                                     24                shall issue such appropriate relief if the Secretary



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                                                                     25                has demonstrated it is just and proper.


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                                                                       1                        ‘‘(6) SUCCESSFULLY DISPROVING OCCURRENCE
                                                                       2               OF MISCLASSIFICATION.—

                                                                       3                                 ‘‘(A) IN GENERAL.—If an employer with
                                                                       4                        respect to whom an order was issued under
                                                                       5                        paragraph (1) successfully proves through a re-
                                                                       6                        view under paragraph (3), or a hearing or ap-
                                                                       7                        peal under paragraph (4), that the 1 or more
                                                                       8                        individuals who were the subject of the order
                                                                       9                        were not misclassified in violation of section
                                                                     10                         5(a)(3)—
                                                                     11                                          ‘‘(i) the order issued under paragraph
                                                                     12                                  (1) shall cease to be in effect;
                                                                     13                                          ‘‘(ii) the employer shall not be liable
                                                                     14                                  for any applicable back pay, damages, or
                                                                     15                                  civil penalties owed by the employer under
                                                                     16                                  this Act (including any standard, rule, reg-
                                                                     17                                  ulation, or order promulgated pursuant to
                                                                     18                                  this         Act)           with           respect             to   the
                                                                     19                                  misclassification of such 1 or more individ-
                                                                     20                                  uals; and
                                                                     21                                          ‘‘(iii) the Secretary, administrative
                                                                     22                                  law judge, or the court, as applicable, shall
                                                                     23                                  award (and the Secretary of Labor shall,
                                                                     24                                  in accordance with subparagraph (B), pay)



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                                                                       1                                 penses of attorneys in the same manner as
                                                                       2                                 such fees and expenses could be awarded
                                                                       3                                 under section 2412 of title 28, United
                                                                       4                                 States Code, if the employer was a pre-
                                                                       5                                 vailing party and the review, hearing, or
                                                                       6                                 appeals proceeding was a civil action
                                                                       7                                 brought by or against the United States.
                                                                       8                                 ‘‘(B) SOURCE OF FUNDS.—The Secretary
                                                                       9                        of the Treasury shall, upon notification by the
                                                                     10                         Secretary of Labor, administrative law judge, or
                                                                     11                         a court, as applicable, pay any fees or expenses
                                                                     12                         awarded under subparagraph (A)(iii) from
                                                                     13                         amounts in the general fund of the Treasury.
                                                                     14                ‘‘(b) STOP WORK ORDERS.—
                                                                     15                         ‘‘(1) IN GENERAL.—In any case where an em-
                                                                     16                ployer does not comply with a reclassification order
                                                                     17                issued by the Secretary under subsection (a)(1), with
                                                                     18                respect           to     2       or      more           individuals              who   are
                                                                     19                misclassified, within 30 days of being served with
                                                                     20                the order, the Secretary shall issue—
                                                                     21                                  ‘‘(A) subject to subparagraph (B), an
                                                                     22                         order against the employer requiring the ces-
                                                                     23                         sation of all business operations of such em-
                                                                     24                         ployer at the location of the violation; or



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                                                                       1                                 ‘‘(B) if an order described in subparagraph
                                                                       2                        (A) has been previously issued against the em-
                                                                       3                        ployer by any Federal, State, or local agency
                                                                       4                        for misclassifying an employee as not an em-
                                                                       5                        ployee in violation of section 5(a)(3), or an
                                                                       6                        equivalent State or local law as determined by
                                                                       7                        the Secretary, an order against the employer re-
                                                                       8                        quiring the cessation of all business operations
                                                                       9                        of such employer at all business locations of the
                                                                     10                         employer, including locations other than the lo-
                                                                     11                         cation where the misclassification occurred.
                                                                     12                         ‘‘(2) ORDERS.—
                                                                     13                                  ‘‘(A) APPLICABILITY.—An order issued
                                                                     14                         under paragraph (1) shall—
                                                                     15                                          ‘‘(i) be effective at the time at which
                                                                     16                                  the order is served upon the employer,
                                                                     17                                  which may be accomplished by the posting
                                                                     18                                  of a copy of the order in a conspicuous lo-
                                                                     19                                  cation at the place of business of the em-
                                                                     20                                  ployer; and
                                                                     21                                          ‘‘(ii) remain in effect—
                                                                     22                                                   ‘‘(I) during any review conducted
                                                                     23                                          under paragraph (3) with respect to
                                                                     24                                          such order and any hearing and ap-



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                                                                       1                                         peal of such order under paragraph
                                                                       2                                         (4); and
                                                                       3                                                  ‘‘(II) until the Secretary issues a
                                                                       4                                         release order under subparagraph (B).
                                                                       5                                 ‘‘(B) RELEASE ORDERS.—
                                                                       6                                         ‘‘(i) IN GENERAL.—An order issued
                                                                       7                                 under paragraph (1) (that is not revoked
                                                                       8                                 by the Secretary or held unlawful or set
                                                                       9                                 aside by an administrative law judge or a
                                                                     10                                  court) shall remain in effect until the Sec-
                                                                     11                                  retary issues another order releasing the
                                                                     12                                  order issued under such paragraph upon a
                                                                     13                                  finding by the Secretary that the em-
                                                                     14                                  ployer—
                                                                     15                                                   ‘‘(I) has corrected the violation of
                                                                     16                                          section 5(a)(3) with respect to the 2
                                                                     17                                          or       more              individuals            who   were
                                                                     18                                          misclassified resulting in the order;
                                                                     19                                          and
                                                                     20                                                   ‘‘(II) has agreed to a payment
                                                                     21                                          schedule for all applicable back pay,
                                                                     22                                          damages, and civil penalties owed by
                                                                     23                                          the employer under this Act, including
                                                                     24                                          any standard, rule, regulation, or



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                                                                       1                                         order promulgated pursuant to this
                                                                       2                                         Act.
                                                                       3                                         ‘‘(ii) REINSTATEMENT.—If, at any
                                                                       4                                 time after the Secretary issues a release
                                                                       5                                 order under subparagraph (A), the em-
                                                                       6                                 ployer fails to comply with the terms of the
                                                                       7                                 payment schedule described in clause
                                                                       8                                 (i)(II), the Secretary shall reinstate the
                                                                       9                                 order issued under paragraph (1) until the
                                                                     10                                  employer is in compliance with such terms.
                                                                     11                         ‘‘(3) REVIEW FOR RECONSIDERATION.—
                                                                     12                                  ‘‘(A) IN GENERAL.—An employer against
                                                                     13                         whom an order is issued under paragraph (1)
                                                                     14                         may request a review by the Secretary to con-
                                                                     15                         test the order.
                                                                     16                                  ‘‘(B) REQUESTS.—A request under sub-
                                                                     17                         paragraph (A) shall be made in writing to the
                                                                     18                         Secretary not more than 5 days after the
                                                                     19                         issuance of the order.
                                                                     20                                  ‘‘(C) REQUIREMENTS FOR REVIEW.—
                                                                     21                                          ‘‘(i) IN         GENERAL.—A                    review under
                                                                     22                                  this paragraph shall—
                                                                     23                                                   ‘‘(I) commence not later than 24
                                                                     24                                          hours after a request is made under



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                                                                     25                                          subparagraph (B); and


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                                                                       1                                                  ‘‘(II) conclude not later than 24
                                                                       2                                         hours after such commencement.
                                                                       3                                         ‘‘(ii)         DETERMINATION.—Not                          later
                                                                       4                                 than 72 hours after a review concludes
                                                                       5                                 under clause (i)(II), the Secretary shall de-
                                                                       6                                 termine whether to affirm, modify, or re-
                                                                       7                                 voke the contested order.
                                                                       8                        ‘‘(4) HEARINGS AND APPEALS.—Any person ag-
                                                                       9               grieved by a determination of the Secretary under
                                                                     10                paragraph (3)(C)(ii) may—
                                                                     11                                  ‘‘(A) request a hearing to appeal such de-
                                                                     12                         termination to an administrative law judge; and
                                                                     13                                  ‘‘(B) appeal an order of an administrative
                                                                     14                         law judge under subparagraph (A) to any
                                                                     15                         United States court of appeals for the circuit in
                                                                     16                         which the violation is alleged to have occurred
                                                                     17                         or where the employer has its principal office,
                                                                     18                         or in the Court of Appeals for the District of
                                                                     19                         Columbia Circuit.
                                                                     20                         ‘‘(5) APPROPRIATE                           RELIEF.—The                 Secretary
                                                                     21                may seek appropriate relief, in a court described in
                                                                     22                paragraph (4)(B), to restrain any employer that vio-
                                                                     23                lates an order issued under paragraph (1). A court
                                                                     24                shall issue such appropriate relief if the Secretary



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                                                                     25                has demonstrated it is just and proper.


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                                                                       1                        ‘‘(6) COMPENSATION FOR LOST WORK.—
                                                                       2                                 ‘‘(A) IN GENERAL.—Subject to subpara-
                                                                       3                        graph (B), an employer with respect to whom
                                                                       4                        an order is issued under paragraph (1) shall
                                                                       5                        pay each employee of the employer, who loses
                                                                       6                        compensation due to the work of such employee
                                                                       7                        ceasing as a result of such order, the compensa-
                                                                       8                        tion that would be owed to such employee if the
                                                                       9                        order was not issued.
                                                                     10                                  ‘‘(B)        LIMITATION.—Compensation                          paid
                                                                     11                         under subparagraph (A) shall be for each day,
                                                                     12                         not to exceed 10 days, for which the employee
                                                                     13                         would be paid if the order described in such
                                                                     14                         paragraph were not in effect.
                                                                     15                         ‘‘(7) SUCCESSFULLY DISPROVING OCCURRENCE
                                                                     16                OF MISCLASSIFICATION.—

                                                                     17                                  ‘‘(A) IN GENERAL.—In any case where an
                                                                     18                         employer with respect to whom an order was
                                                                     19                         issued under paragraph (1) successfully proves,
                                                                     20                         through a review under paragraph (3) or a sub-
                                                                     21                         sequent hearing or appeals proceeding under
                                                                     22                         paragraph (4), that the 2 or more individuals
                                                                     23                         who were the subject of the order were not
                                                                     24                         misclassified in violation of section 5(a)(3)—



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                                                                       1                                         ‘‘(i) the order issued under paragraph
                                                                       2                                 (1), and any order issued against the em-
                                                                       3                                 ployer under subsection (a)(1) with respect
                                                                       4                                 to such 2 or more individuals, shall cease
                                                                       5                                 to be in effect;
                                                                       6                                         ‘‘(ii) the employer shall not be liable
                                                                       7                                 for any applicable back pay, damages, or
                                                                       8                                 civil penalties owed by the employer under
                                                                       9                                 this Act (including any standard, rule, reg-
                                                                     10                                  ulation, or order promulgated pursuant to
                                                                     11                                  this         Act)           with           respect             to   the
                                                                     12                                  misclassification of such 2 or more individ-
                                                                     13                                  uals; and
                                                                     14                                          ‘‘(iii) the Secretary of Labor, adminis-
                                                                     15                                  trative law judge, or the court, shall award
                                                                     16                                  (and the Secretary of the Treasury shall,
                                                                     17                                  in accordance with subparagraph (B), pay)
                                                                     18                                  to the employer—
                                                                     19                                                   ‘‘(I) an amount equal to any de-
                                                                     20                                          monstrable lost net profits resulting
                                                                     21                                          from the order, as demonstrated by
                                                                     22                                          clear and convincing evidence; and
                                                                     23                                                   ‘‘(II) reasonable fees and ex-
                                                                     24                                          penses of attorneys in the same man-



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                                                                       1                                         be awarded under section 2412 of title
                                                                       2                                         28, United States Code, if the em-
                                                                       3                                         ployer was a prevailing party and the
                                                                       4                                         review, hearing, or appeals proceeding
                                                                       5                                         was a civil action brought by or
                                                                       6                                         against the United States.
                                                                       7                                 ‘‘(B) SOURCE OF FUNDS.—The Secretary
                                                                       8                        of the Treasury shall, upon notification by the
                                                                       9                        Secretary of Labor, administrative law judge, or
                                                                     10                         court, as applicable, pay any amounts, fees, or
                                                                     11                         expenses awarded under subparagraph (A)(iii)
                                                                     12                         from amounts available in the general fund of
                                                                     13                         the Treasury.’’.
                                                                     14                                  (B) PENALTIES.—Section 17 of the Occu-
                                                                     15                         pational Safety and Health Act of 1970 (29
                                                                     16                         U.S.C. 666), as amended by paragraph (3)(C),
                                                                     17                         is further amended by inserting after subsection
                                                                     18                         (j) the following:
                                                                     19                ‘‘(k) PENALTIES FOR VIOLATIONS OF RECLASSIFICA-
                                                                     20      TION ORDERS.—

                                                                     21                         ‘‘(1) CIVIL PENALTIES.—Any person who vio-
                                                                     22                lates a reclassification order issued by the Secretary
                                                                     23                under section 13A(a)(1) shall be subject to a civil
                                                                     24                penalty of not less than $5,000 per day, with each



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                                                                       1                        ‘‘(2) ADDITIONAL                       DAMAGES.—In                      any case
                                                                       2               where an employer contests a reclassification order
                                                                       3               issued by the Secretary under paragraph (1) of sec-
                                                                       4               tion 13A(a) in a review under paragraph (3) of such
                                                                       5               section, hearing under paragraph (4)(A) of such sec-
                                                                       6               tion, and subsequent judicial proceeding under para-
                                                                       7               graph (4)(B) of such section and a court rules in
                                                                       8               favor of the Secretary—
                                                                       9                                 ‘‘(A) the court shall determine if, during
                                                                     10                         the period between the issuance of the order
                                                                     11                         and the conclusion of the proceeding, the em-
                                                                     12                         ployer violated such order by not classifying the
                                                                     13                         1 or more individuals as employees during that
                                                                     14                         period; and
                                                                     15                                  ‘‘(B) if the court determines the employer
                                                                     16                         so violated the order during that period—
                                                                     17                                          ‘‘(i) the court shall determine the
                                                                     18                                  amount of net profits derived by the em-
                                                                     19                                  ployer from the individuals’ labor during
                                                                     20                                  that period; and
                                                                     21                                          ‘‘(ii) the court shall assess damages in
                                                                     22                                  the amount determined under clause (i),
                                                                     23                                  which damages shall be awarded to such
                                                                     24                                  individuals by the court.’’.



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                                                                       1               (d) FEDERAL MINE SAFETY AND HEALTH ACT OF
                                                                       2 1977.—
                                                                       3                        (1) STRENGTHENING                           EMPLOYEE TEST.—The

                                                                       4               Federal Mine Safety and Health Act of 1977 (30
                                                                       5               U.S.C. 801 et seq.) is amended by inserting after
                                                                       6               section 4 (30 U.S.C. 803) the following:
                                                                       7     ‘‘SEC. 4A. EMPLOYEE TEST.

                                                                       8               ‘‘(a) IN GENERAL.—For purposes of this Act, includ-
                                                                       9 ing any mandatory health or safety standard, rule, order,
                                                                     10 or regulation promulgated pursuant to this Act, and ex-
                                                                     11 cept as provided in subsection (c), an individual per-
                                                                     12 forming any labor in a coal or other mine for remuneration
                                                                     13 for a person shall be an employee employed by such person
                                                                     14 and not an independent contractor of the person, unless—
                                                                     15                         ‘‘(1) the individual is free from control and di-
                                                                     16                rection in connection with the performance of the
                                                                     17                labor, both under the contract for the performance
                                                                     18                of the labor and in fact;
                                                                     19                         ‘‘(2) the labor is performed outside the usual
                                                                     20                course of the business of the person; and
                                                                     21                         ‘‘(3) the individual is customarily engaged in an
                                                                     22                independently established trade, occupation, profes-
                                                                     23                sion, or business of the same nature as that involved
                                                                     24                in the labor performed.



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                                                                     25                ‘‘(b) CLARIFICATIONS.—


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                                                                       1                        ‘‘(1) RELATIONSHIP WITH COMMON LAW.—Sub-
                                                                       2               section (a) is not a codification of the common law
                                                                       3               and shall not be interpreted to reflect, or to be lim-
                                                                       4               ited or restricted by, common law interpretations re-
                                                                       5               garding when an individual is an employee of an-
                                                                       6               other person. Subsection (a) shall be considered
                                                                       7               complete as written, and any judicial or agency in-
                                                                       8               terpretation of such subsection shall be limited to
                                                                       9               the explicit requirements of such subsection.
                                                                     10                         ‘‘(2) IMPACT OF WRITTEN OR OTHER AGREE-
                                                                     11                MENTS.—The                    requirements of subsection (a) shall
                                                                     12                not be in any way affected by any agreement, writ-
                                                                     13                ten or otherwise, that purports to demonstrate an
                                                                     14                individual’s acknowledgment of or acquiescence to
                                                                     15                the absence of an employer-employee relationship
                                                                     16                with a particular employer.
                                                                     17                ‘‘(c) NON-COMPETE AGREEMENTS.—
                                                                     18                         ‘‘(1) IN GENERAL.—Notwithstanding any con-
                                                                     19                trary provisions in this Act, in any instance in which
                                                                     20                there is a non-compete agreement between a person
                                                                     21                and an individual who performs labor for such per-
                                                                     22                son, the presence of the non-compete agreement,
                                                                     23                without regard to the legality or enforceability of the
                                                                     24                non-compete agreement, shall be evidence of control



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                                                                     25                for purposes of subsection (a)(1), but shall not by


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                                                                       1               itself establish an employment relationship between
                                                                       2               such person and the individual.
                                                                       3                        ‘‘(2) DEFINITION                    OF       NON-COMPETE                AGREE-

                                                                       4               MENT.—In              this subsection, the term ‘non-compete
                                                                       5               agreement’ means an agreement between a person
                                                                       6               and an individual who performs labor for such per-
                                                                       7               son that restricts the individual from performing, ei-
                                                                       8               ther during or after the individual performs labor
                                                                       9               for such person—
                                                                     10                                  ‘‘(A) any labor for another person;
                                                                     11                                  ‘‘(B) any labor for a specified period of
                                                                     12                         time;
                                                                     13                                  ‘‘(C) any labor in a specified geographical
                                                                     14                         area; or
                                                                     15                                  ‘‘(D) any labor for another person that is
                                                                     16                         similar to the labor such individual performed
                                                                     17                         for the person that is a party to such agree-
                                                                     18                         ment.’’.
                                                                     19                         (2) PRESUMPTION                       OF EMPLOYEE STATUS.—

                                                                     20                Section 4A of the Federal Mine Safety and Health
                                                                     21                Act of 1977, as added by paragraph (1), is further
                                                                     22                amended by adding at the end the following:
                                                                     23                ‘‘(d) PRESUMPTION OF EMPLOYEE STATUS.—For
                                                                     24 purposes of this Act, including any mandatory health or



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                                                                       1 pursuant to this Act, an individual performing any labor
                                                                       2 in a coal or other mine for remuneration for a person shall
                                                                       3 be presumed to be an employee of the person, unless the
                                                                       4 party seeking to assert otherwise establishes by clear and
                                                                       5 convincing evidence that the individual is not an employee
                                                                       6 in accordance with this section.’’.
                                                                       7                        (3) MISCLASSIFICATION AS A STANDALONE VIO-
                                                                       8               LATION.—

                                                                       9                                 (A) IN GENERAL.—Title I of the Federal
                                                                     10                         Mine Safety and Health Act of 1977 (30
                                                                     11                         U.S.C. 811 et seq.) is amended by adding at
                                                                     12                         the end the following:
                                                                     13      ‘‘SEC. 117. MISCLASSIFICATION; INCORPORATION TO FUR-

                                                                     14                              THER VIOLATIONS.

                                                                     15                ‘‘(a) IN GENERAL.—No operator of a coal or other
                                                                     16 mine shall misclassify an employee of the operator per-
                                                                     17 forming labor in a coal or other mine for the operator as
                                                                     18 not an employee of the person for purposes of this Act,
                                                                     19 including any mandatory health or safety standard, rule,
                                                                     20 order, or regulation promulgated pursuant to this Act.’’.
                                                                     21                                  (B) INCORPORATION TO FURTHER VIOLA-
                                                                     22                         TIONS.—Section 117 of the Federal Mine Safe-

                                                                     23                         ty and Health Act of 1977, as added by sub-
                                                                     24                         paragraph (A), is amended by adding at the



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                                                                     25                         end the following:


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                                                                       1               ‘‘(b) INCORPORATION TO FURTHER VIOLATIONS.—
                                                                       2 No person shall, for the purpose, in whole or in part, of
                                                                       3 facilitating, or evading detection of, a violation of this Act,
                                                                       4 including a violation of subsection (a) or any mandatory
                                                                       5 health or safety standard, rule, order, or regulation pro-
                                                                       6 mulgated pursuant to this Act—
                                                                       7                        ‘‘(1) incorporate or form, or assist in the incor-
                                                                       8               poration or formation of, a corporation, partnership,
                                                                       9               limited liability corporation, or other entity; or
                                                                     10                         ‘‘(2) pay or collect a fee for use of a foreign or
                                                                     11                domestic corporation, partnership, limited liability
                                                                     12                corporation, or other entity.’’.
                                                                     13                                  (C) PENALTIES.—Section 110 of the Fed-
                                                                     14                         eral Mine Safety and Health Act of 1977 (30
                                                                     15                         U.S.C. 820) is amended—
                                                                     16                                          (i) by redesignating subsections (i)
                                                                     17                                  through (l) as subsections (l) through (o),
                                                                     18                                  respectively; and
                                                                     19                                          (ii) by inserting after subsection (h)
                                                                     20                                  the following:
                                                                     21                ‘‘(i) PENALTIES FOR MISCLASSIFICATION AND IN-
                                                                     22      CORPORATION TO FURTHER VIOLATIONS.—

                                                                     23                         ‘‘(1) IN GENERAL.—Any operator of a coal or
                                                                     24                other mine who violates section 117 shall be subject



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                                                                     25                to a civil penalty of—


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                                                                       1                                 ‘‘(A) subject to subparagraphs (B) and
                                                                       2                        (C), $10,000;
                                                                       3                                 ‘‘(B) if the violation is repeated or willful,
                                                                       4                        $30,000; or
                                                                       5                                 ‘‘(C) if the violation is widespread, 1 per-
                                                                       6                        cent of the net profits of the operator for the
                                                                       7                        year in which the operator had the highest net
                                                                       8                        profits out of all years in which the operator
                                                                       9                        was in such violation.
                                                                     10                         ‘‘(2) REPEATED,                     OR       WILLFUL,             AND   WIDE-

                                                                     11                SPREAD VIOLATIONS.—If a violation of section 117

                                                                     12                is repeated or willful, as described in paragraph
                                                                     13                (1)(B), and is widespread, as described in paragraph
                                                                     14                (1)(C), the higher penalty of the penalties described
                                                                     15                in such paragraphs shall apply.
                                                                     16                         ‘‘(3) PAYMENT OF PENALTIES.—Any penalty
                                                                     17                assessed under paragraph (1) for a violation of sec-
                                                                     18                tion 117 shall be paid from an account of the oper-
                                                                     19                ator in such violation and not paid, or reimbursed,
                                                                     20                by any insurance plan that would indemnify the op-
                                                                     21                erator from violations of such section. If an operator
                                                                     22                of a coal or other mine receives a payment from an
                                                                     23                insurance plan to indemnify the person from a viola-
                                                                     24                tion of such section, the operator shall transfer the



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                                                                     25                payment to the Secretary, in addition to the amount


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                                                                       1               to be paid from the account of the operator for the
                                                                       2               penalty.’’.
                                                                       3                        (4) PROTECTION                       FROM            RETALIATION        FOR

                                                                       4               BEING AN EMPLOYEE.—Section                                       105(c)(1) of the
                                                                       5               Federal Mine Safety and Health Act of 1977 (30
                                                                       6               U.S.C. 815(c)(1)) is amended—
                                                                       7                                 (A) by striking ‘‘No person’’ and inserting
                                                                       8                        ‘‘(A) No person’’; and
                                                                       9                                 (B) by adding at the end the following:
                                                                     10                ‘‘(B) No person shall discharge or in any manner dis-
                                                                     11 criminate against or cause to be discharged or cause dis-
                                                                     12 crimination against or otherwise interfere with the exer-
                                                                     13 cise of the statutory rights of any miner, or representative
                                                                     14 of miners, in any coal or other mine subject to this Act,
                                                                     15 because such miner—
                                                                     16                         ‘‘(i) is required pursuant to the enactment of
                                                                     17                the Worker Flexibility and Small Business Protec-
                                                                     18                tion Act of 2020 to be classified as an employee of
                                                                     19                the person for purposes of this Act, including any
                                                                     20                mandatory health or safety standard, rule, order, or
                                                                     21                regulation promulgated pursuant to this Act, and
                                                                     22                not as an independent contractor; and
                                                                     23                         ‘‘(ii) was classified by the person as an inde-
                                                                     24                pendent contractor prior to the date of enactment of



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                                                                       1               the Worker Flexibility and Small Business Protec-
                                                                       2               tion Act of 2020.’’.
                                                                       3                        (5) RULES REGARDING UNLAWFUL DISCHARGE
                                                                       4               OR DISCRIMINATION.—Section 105(c) of the Federal

                                                                       5               Mine Safety and Health Act of 1977 (30 U.S.C.
                                                                       6               815(c)) is amended by adding at the end the fol-
                                                                       7               lowing:
                                                                       8                        ‘‘(4) PRESUMPTION OF RETALIATION.—Any ac-
                                                                       9               tion taken by a person described in paragraph
                                                                     10                (1)(A) against any miner, representative of miners,
                                                                     11                or applicant for employment in any coal or other
                                                                     12                mine subject to this Act, within 90 days of the
                                                                     13                miner, representative, or applicant taking any action
                                                                     14                described in such paragraph, including taking any
                                                                     15                such action with respect to exercising the right of an
                                                                     16                employee pursuant to section 117(a) to not be
                                                                     17                misclassified, shall establish a rebuttable presump-
                                                                     18                tion that the action is discrimination against the
                                                                     19                miner, representative, or applicant in violation of
                                                                     20                paragraph (1).
                                                                     21                         ‘‘(5)       MOTIVATING                  FACTOR.—Unlawful                dis-
                                                                     22                charge or discrimination under paragraph (1)
                                                                     23                against a miner, representative of miners, or appli-
                                                                     24                cant for employment in any coal or other mine sub-



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                                                                     25                ject to this Act is established when the complaining


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                                                                       1               party demonstrates that one of the actions or the
                                                                       2               classification described in such paragraph was a mo-
                                                                       3               tivating factor for such discharge or discrimination,
                                                                       4               even if such discharge or discrimination was also
                                                                       5               motivated by other factors.’’.
                                                                       6                        (6)           MISCLASSIFICATION                                 ENFORCEMENT

                                                                       7               THROUGH              RECLASSIFICATION                      ORDERS            AND   STOP

                                                                       8               WORK ORDERS.—

                                                                       9                                 (A) IN            GENERAL.—The                         Federal Mine
                                                                     10                         Safety and Health Act of 1977 (30 U.S.C. 801
                                                                     11                         et seq.) is amended by inserting after section
                                                                     12                         108 (30 U.S.C. 818) the following:
                                                                     13      ‘‘SEC. 108A. MISCLASSIFICATION ENFORCEMENT THROUGH

                                                                     14                               RECLASSIFICATION                         ORDERS              AND    STOP

                                                                     15                               WORK ORDERS.

                                                                     16                ‘‘(a) RECLASSIFICATION ORDERS.—
                                                                     17                         ‘‘(1) IN             GENERAL.—If                the Secretary deter-
                                                                     18                mines, after an investigation under section 103, that
                                                                     19                an operator of a coal or other mine has misclassified
                                                                     20                1 or more individuals who are employees performing
                                                                     21                labor for the operator in a coal or other mine as not
                                                                     22                employees in violation of section 117(a)—
                                                                     23                                  ‘‘(A) the Secretary shall issue, not later
                                                                     24                         than 24 hours after making such determination,



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                                                                     25                         an order against the operator requiring the op-


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                                                                       1                        erator to immediately classify the 1 or more in-
                                                                       2                        dividuals as employees of the operator; and
                                                                       3                                 ‘‘(B) the operator shall immediately com-
                                                                       4                        ply with the order issued under subparagraph
                                                                       5                        (A) or otherwise be in violation of section
                                                                       6                        117(a).
                                                                       7                        ‘‘(2) ORDERS.—An order issued under para-
                                                                       8               graph (1) shall—
                                                                       9                                 ‘‘(A) be effective at the time at which the
                                                                     10                         order is served upon the operator, which may be
                                                                     11                         accomplished by the posting of a copy of the
                                                                     12                         order in a conspicuous location at the place of
                                                                     13                         business of the operator; and
                                                                     14                                  ‘‘(B) remain in effect during any review
                                                                     15                         conducted under paragraph (3) and during any
                                                                     16                         hearing and appeal of such order under para-
                                                                     17                         graph (4).
                                                                     18                         ‘‘(3) REVIEW FOR RECONSIDERATION.—
                                                                     19                                  ‘‘(A) IN GENERAL.—An operator against
                                                                     20                         whom an order is issued under paragraph (1)
                                                                     21                         may request a review by the Secretary to con-
                                                                     22                         test the order.
                                                                     23                                  ‘‘(B) REQUESTS.—A request under sub-
                                                                     24                         paragraph (A) shall be made in writing to the



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                                                                       1                        Secretary not more than 5 days after the
                                                                       2                        issuance of the order.
                                                                       3                                 ‘‘(C) REQUIREMENTS FOR REVIEW.—
                                                                       4                                         ‘‘(i) IN         GENERAL.—A                    review under
                                                                       5                                 this paragraph shall—
                                                                       6                                                  ‘‘(I) commence not later than 24
                                                                       7                                         hours after a request is made under
                                                                       8                                         subparagraph (B); and
                                                                       9                                                  ‘‘(II) conclude not later than 24
                                                                     10                                          hours after such commencement.
                                                                     11                                          ‘‘(ii)         DETERMINATION.—Not                      later
                                                                     12                                  than 72 hours after a review concludes
                                                                     13                                  under clause (i)(II), the Secretary shall de-
                                                                     14                                  termine whether to affirm, modify, or re-
                                                                     15                                  voke the contested order.
                                                                     16                         ‘‘(4) HEARINGS AND APPEALS.—Any person ag-
                                                                     17                grieved by a determination of the Secretary under
                                                                     18                paragraph (3)(C)(ii) may—
                                                                     19                                  ‘‘(A) request a hearing to appeal such de-
                                                                     20                         termination to an administrative law judge; and
                                                                     21                                  ‘‘(B) appeal an order of an administrative
                                                                     22                         law judge under subparagraph (A) to the
                                                                     23                         United States Court of Appeals for the District
                                                                     24                         of Columbia Circuit or the circuit wherein such



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                                                                       1                        person resides or has their principal place of
                                                                       2                        business.
                                                                       3                        ‘‘(5) RELIEF.—The Secretary may seek, in a
                                                                       4               court (including circuit) described in paragraph
                                                                       5               (4)(B), relief through a civil action under section
                                                                       6               108(a) against any operator of a coal or other mine
                                                                       7               that violates an order issued under paragraph (1). A
                                                                       8               court shall issue such relief if the Secretary has
                                                                       9               demonstrated it is just and proper.
                                                                     10                         ‘‘(6) SUCCESSFULLY DISPROVING OCCURRENCE
                                                                     11                OF MISCLASSIFICATION.—

                                                                     12                                  ‘‘(A) IN GENERAL.—If an operator with
                                                                     13                         respect to whom an order was issued under
                                                                     14                         paragraph (1) successfully proves through a re-
                                                                     15                         view under paragraph (3), or a hearing or ap-
                                                                     16                         peal proceeding under paragraph (4), that the
                                                                     17                         1 or more individuals who were the subject of
                                                                     18                         the order were not misclassified in violation of
                                                                     19                         section 117(a)—
                                                                     20                                          ‘‘(i) the order issued under paragraph
                                                                     21                                  (1) shall cease to be in effect;
                                                                     22                                          ‘‘(ii) the operator shall not be liable
                                                                     23                                  for any applicable back pay, damages, or
                                                                     24                                  civil penalties owed by the operator under



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                                                                     25                                  this Act (including any mandatory health


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                                                                       1                                 or safety standard, rule, order, or regula-
                                                                       2                                 tion promulgated pursuant to this Act)
                                                                       3                                 with respect to the misclassification of
                                                                       4                                 such 1 or more individuals; and
                                                                       5                                         ‘‘(iii) the Secretary of Labor, adminis-
                                                                       6                                 trative law judge, or the court, as applica-
                                                                       7                                 ble, shall award (and the Secretary of the
                                                                       8                                 Treasury shall, in accordance with sub-
                                                                       9                                 paragraph (B), pay) to the operator rea-
                                                                     10                                  sonable fees and expenses of attorneys in
                                                                     11                                  the same manner as such fees and ex-
                                                                     12                                  penses could be awarded under section
                                                                     13                                  2412 of title 28, United States Code, if the
                                                                     14                                  operator was a prevailing party and the re-
                                                                     15                                  view, hearing, or appeals proceeding was a
                                                                     16                                  civil action brought by or against the
                                                                     17                                  United States.
                                                                     18                                  ‘‘(B) SOURCE OF FUNDS.—The Secretary
                                                                     19                         of the Treasury shall, upon notification by the
                                                                     20                         Secretary of Labor, administrative law judge, or
                                                                     21                         court, as applicable, pay any fees or expenses
                                                                     22                         awarded under subparagraph (A)(iii) from
                                                                     23                         amounts in the general fund of the Treasury.
                                                                     24                ‘‘(b) STOP WORK ORDERS.—



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                                                                       1                        ‘‘(1) IN GENERAL.—In any case where an oper-
                                                                       2               ator of a coal or other mine does not comply with
                                                                       3               a reclassification order issued by the Secretary
                                                                       4               under subsection (a)(1), with respect to 2 or more
                                                                       5               individuals who are misclassified in violation of sec-
                                                                       6               tion 117(a), within 30 days of being served the
                                                                       7               order, the Secretary shall issue—
                                                                       8                                 ‘‘(A) subject to subparagraph (B), an
                                                                       9                        order against the operator requiring the ces-
                                                                     10                         sation of all business operations of such oper-
                                                                     11                         ator at the location of the violation; or
                                                                     12                                  ‘‘(B) if an order described in subparagraph
                                                                     13                         (A) has been previously issued against the oper-
                                                                     14                         ator by any Federal, State, or local agency for
                                                                     15                         misclassifying an employee performing labor for
                                                                     16                         the operator in a coal or other mine as not an
                                                                     17                         employee in violation of section 117(a), or an
                                                                     18                         equivalent State or local law as determined by
                                                                     19                         the Secretary, an order against the operator re-
                                                                     20                         quiring the cessation of all business operations
                                                                     21                         of such operator at all business locations of the
                                                                     22                         operator, including locations other than the lo-
                                                                     23                         cation where the misclassification occurred.
                                                                     24                         ‘‘(2) ORDERS.—



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                                                                       1                                 ‘‘(A) APPLICABILITY.—An order issued
                                                                       2                        under paragraph (1) shall—
                                                                       3                                         ‘‘(i) be effective at the time at which
                                                                       4                                 the order is served upon the operator,
                                                                       5                                 which may be accomplished by the posting
                                                                       6                                 of a copy of the order in a conspicuous lo-
                                                                       7                                 cation at the place of business of the oper-
                                                                       8                                 ator; and
                                                                       9                                         ‘‘(ii) remain in effect—
                                                                     10                                                   ‘‘(I) during any review conducted
                                                                     11                                          under paragraph (3) with respect to
                                                                     12                                          such order and during any hearing
                                                                     13                                          and appeal of such order under para-
                                                                     14                                          graph (4); and
                                                                     15                                                   ‘‘(II) until the Secretary issues a
                                                                     16                                          release order under subparagraph (B).
                                                                     17                                  ‘‘(B) RELEASE ORDERS.—
                                                                     18                                          ‘‘(i) IN GENERAL.—An order issued
                                                                     19                                  under paragraph (1) (that is not revoked
                                                                     20                                  by the Secretary or held unlawful or set
                                                                     21                                  aside by an administrative law judge or a
                                                                     22                                  court) shall remain in effect until the Sec-
                                                                     23                                  retary issues another order releasing the
                                                                     24                                  order issued under such paragraph upon a



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                                                                       1                                 finding by the Secretary that the oper-
                                                                       2                                 ator—
                                                                       3                                                  ‘‘(I) has corrected the violation of
                                                                       4                                         section 117(a) with respect to the 2 or
                                                                       5                                         more              individuals                   who    were
                                                                       6                                         misclassified resulting in the order;
                                                                       7                                         and
                                                                       8                                                  ‘‘(II) has agreed to a payment
                                                                       9                                         schedule for all applicable back pay,
                                                                     10                                          damages, and civil penalties owed by
                                                                     11                                          the operator under this Act, including
                                                                     12                                          any mandatory health or safety stand-
                                                                     13                                          ard, rule, order, or regulation promul-
                                                                     14                                          gated pursuant to this Act.
                                                                     15                                          ‘‘(ii) REINSTATEMENT.—If, at any
                                                                     16                                  time after the Secretary issues a release
                                                                     17                                  order under paragraph (1), the operator
                                                                     18                                  fails to comply with the terms of the pay-
                                                                     19                                  ment schedule described in clause (i)(II),
                                                                     20                                  the Secretary shall reinstate the order
                                                                     21                                  issued under paragraph (1) until the oper-
                                                                     22                                  ator is in compliance with such terms.
                                                                     23                         ‘‘(3) REVIEW FOR RECONSIDERATION.—
                                                                     24                                  ‘‘(A) IN GENERAL.—An operator of a coal



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                                                                       1                        under paragraph (1) may request a review by
                                                                       2                        the Secretary to contest the order.
                                                                       3                                 ‘‘(B) REQUESTS.—A request under sub-
                                                                       4                        paragraph (A) shall be made in writing to the
                                                                       5                        Secretary not more than 5 days after the
                                                                       6                        issuance of the order.
                                                                       7                                 ‘‘(C) REQUIREMENTS FOR REVIEW.—
                                                                       8                                         ‘‘(i) IN         GENERAL.—A                    review under
                                                                       9                                 this paragraph shall—
                                                                     10                                                   ‘‘(I) commence not later than 24
                                                                     11                                          hours after a request is made under
                                                                     12                                          subparagraph (B); and
                                                                     13                                                   ‘‘(II) conclude not later than 24
                                                                     14                                          hours after such commencement.
                                                                     15                                          ‘‘(ii)         DETERMINATION.—Not                      later
                                                                     16                                  than 72 hours after a review concludes
                                                                     17                                  under clause (i)(II), the Secretary shall de-
                                                                     18                                  termine whether to affirm, modify, or re-
                                                                     19                                  voke the contested order.
                                                                     20                         ‘‘(4) HEARING AND APPEALS.—Any person ag-
                                                                     21                grieved by a determination of the Secretary under
                                                                     22                paragraph (3)(C)(ii) may—
                                                                     23                                  ‘‘(A) appeal such determination to an ad-
                                                                     24                         ministrative law judge; and



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                                                                       1                                 ‘‘(B) appeal an order of an administrative
                                                                       2                        law judge under subparagraph (A) to the
                                                                       3                        United States Court of Appeals for the District
                                                                       4                        of Columbia Circuit or the circuit wherein such
                                                                       5                        person resides or has their principal place of
                                                                       6                        business.
                                                                       7                        ‘‘(5) RELIEF.—The Secretary may seek, in any
                                                                       8               court (including circuit) described in paragraph
                                                                       9               (4)(B), relief through a civil action under section
                                                                     10                108(a) against any operator of a coal or other mine
                                                                     11                that violates an order issued under paragraph (1). A
                                                                     12                court shall issue such relief if the Secretary has
                                                                     13                demonstrated it is just and proper.
                                                                     14                         ‘‘(6) COMPENSATION FOR LOST WORK.—
                                                                     15                                  ‘‘(A) IN GENERAL.—Subject to subpara-
                                                                     16                         graph (B), an operator of a coal or other mine
                                                                     17                         with respect to whom an order is issued under
                                                                     18                         paragraph (1) shall pay each miner who loses
                                                                     19                         compensation due to the work of such miner
                                                                     20                         ceasing as a result of such order, the compensa-
                                                                     21                         tion that would be owed to such miner if the
                                                                     22                         order was not issued.
                                                                     23                                  ‘‘(B)        LIMITATION.—Compensation                          paid
                                                                     24                         under subparagraph (A) shall be for each day,



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                                                                     25                         not to exceed 10 days, for which the miner


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                                                                       1                        would be paid if the order described in such
                                                                       2                        paragraph were not in effect.
                                                                       3                        ‘‘(7) SUCCESSFULLY DISPROVING OCCURRENCE
                                                                       4               OF MISCLASSIFICATION.—

                                                                       5                                 ‘‘(A) IN GENERAL.—In any case where an
                                                                       6                        operator of a coal or other mine with respect to
                                                                       7                        whom an order was issued under paragraph (1)
                                                                       8                        successfully proves through a review under
                                                                       9                        paragraph (3), or a subsequent hearing or ap-
                                                                     10                         peals proceeding under paragraph (4), that the
                                                                     11                         2 or more individuals who were the subject of
                                                                     12                         the order were not misclassified in violation of
                                                                     13                         section 117(a)—
                                                                     14                                          ‘‘(i) the order issued under paragraph
                                                                     15                                  (1), and any order issued against the oper-
                                                                     16                                  ator under subsection (a)(1) with respect
                                                                     17                                  to such 2 or more individuals, shall cease
                                                                     18                                  to be in effect;
                                                                     19                                          ‘‘(ii) the operator shall not be liable
                                                                     20                                  for any applicable back pay, damages, or
                                                                     21                                  civil penalties owed by the operator under
                                                                     22                                  this Act (including any mandatory health
                                                                     23                                  or safety standard, rule, order, or regula-
                                                                     24                                  tion promulgated pursuant to this Act)



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                                                                       1                                 with respect to the misclassification of
                                                                       2                                 such 2 or more individuals; and
                                                                       3                                         ‘‘(iii) the Secretary of Labor, adminis-
                                                                       4                                 trative law judge, or court shall award
                                                                       5                                 (and the Secretary of the Treasury, shall
                                                                       6                                 in accordance with subparagraph (B), pay)
                                                                       7                                 to the operator—
                                                                       8                                                  ‘‘(I) an amount equal to any de-
                                                                       9                                         monstrable lost net profits resulting
                                                                     10                                          from the order, as demonstrated by
                                                                     11                                          clear and convincing evidence; and
                                                                     12                                                   ‘‘(II) reasonable attorney fees
                                                                     13                                          and expenses of attorneys in the same
                                                                     14                                          manner as such fees and expenses
                                                                     15                                          could be awarded under section 2412
                                                                     16                                          of title 28, United States Code, if the
                                                                     17                                          operator was a prevailing party and
                                                                     18                                          the review, hearing, or appeals pro-
                                                                     19                                          ceeding was a civil action brought by
                                                                     20                                          or against the United States.
                                                                     21                                  ‘‘(B) SOURCE OF FUNDS.—The Secretary
                                                                     22                         of the Treasury shall, upon notification by the
                                                                     23                         Secretary of Labor, administrative law judge, or
                                                                     24                         court, as applicable, pay any amounts, fees, or



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                                                                     25                         expenses awarded under subparagraph (A)(iii)


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                                                                       1                        from amounts available in the general fund of
                                                                       2                        the Treasury.’’.
                                                                       3                                 (B) PENALTIES.—Section 110 of the Fed-
                                                                       4                        eral Mine Safety and Health Act of 1977 (30
                                                                       5                        U.S.C. 820), as amended by paragraph (3)(C),
                                                                       6                        is further amended by inserting after subsection
                                                                       7                        (i), as so redesignated, the following:
                                                                       8               ‘‘(j) PENALTIES FOR VIOLATING RECLASSIFICATION
                                                                       9 ORDERS.—
                                                                     10                         ‘‘(1) CIVIL PENALTIES.—Any operator of a coal
                                                                     11                or other mine who violates a reclassification order
                                                                     12                issued by the Secretary under section 108A(a)(1)
                                                                     13                shall be subject to a civil penalty of not less than
                                                                     14                $5,000 per day, with each day constituting a sepa-
                                                                     15                rate offense.
                                                                     16                         ‘‘(2) ADDITIONAL DAMAGES.—In any case in
                                                                     17                which an operator of a coal or other mine contests
                                                                     18                a reclassification order issued under paragraph (1)
                                                                     19                of section 108A(a) in a review under paragraph (3)
                                                                     20                of such section, a hearing under paragraph (4)(A) of
                                                                     21                such section, and a subsequent judicial proceeding
                                                                     22                under paragraph (4)(B) of such section, and the
                                                                     23                court rules in favor of the Secretary—
                                                                     24                                  ‘‘(A) the court shall determine if, during



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                                                                     25                         the period between the issuance of such order


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                                                                       1                        and the conclusion of the proceeding, the oper-
                                                                       2                        ator violated such order by not classifying the
                                                                       3                        1 or more individuals as employees during that
                                                                       4                        period; and
                                                                       5                                 ‘‘(B) if the court determines the operator
                                                                       6                        so violated the order during that period—
                                                                       7                                         ‘‘(i) the court shall determine the
                                                                       8                                 amount of the net profits derived by the
                                                                       9                                 operator from the individuals’ labor during
                                                                     10                                  that period; and
                                                                     11                                          ‘‘(ii) the court shall assess damages in
                                                                     12                                  the amount determined under clause (i),
                                                                     13                                  which damages shall be awarded to such
                                                                     14                                  individuals by the court.’’.
                                                                     15                (e) MIGRANT AND SEASONAL AGRICULTURAL WORK-
                                                                     16      ER PROTECTION ACT.—

                                                                     17                         (1) STRENGTHENING                           EMPLOYEE TEST.—The

                                                                     18                Migrant and Seasonal Agricultural Worker Protec-
                                                                     19                tion Act (29 U.S.C. 1801 et seq.) is amended—
                                                                     20                                  (A) by redesignating section 4 (29 U.S.C.
                                                                     21                         1803) as section 5; and
                                                                     22                                  (B) by inserting after section 3 (29 U.S.C.
                                                                     23                         1802) the following:




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                                                                       1     ‘‘SEC. 4. EMPLOYEE TEST.

                                                                       2               ‘‘(a) IN GENERAL.—For purposes of this Act, includ-
                                                                       3 ing any regulation under this Act and except as provided
                                                                       4 in subsection (c), an individual performing any service or
                                                                       5 activity described in section 3(3), including the handling,
                                                                       6 planting, drying, packing, packaging, processing, freezing,
                                                                       7 or grading described in such section, for remuneration for
                                                                       8 a person shall be an employee employed in agricultural
                                                                       9 employment by such person and not an independent con-
                                                                     10 tractor of the person, unless—
                                                                     11                         ‘‘(1) the individual is free from control and di-
                                                                     12                rection in connection with the performance of the
                                                                     13                service or activity, both under the contract for the
                                                                     14                performance of the service or activity and in fact;
                                                                     15                         ‘‘(2) the service or activity is performed outside
                                                                     16                the usual course of the business of the person; and
                                                                     17                         ‘‘(3) the individual is customarily engaged in an
                                                                     18                independently established trade, occupation, profes-
                                                                     19                sion, or business of the same nature as that involved
                                                                     20                in the service or activity performed.
                                                                     21                ‘‘(b) CLARIFICATION.—
                                                                     22                         ‘‘(1) RELATIONSHIP WITH COMMON LAW.—Sub-
                                                                     23                section (a) is not a codification of the common law
                                                                     24                and shall not be interpreted to reflect, or to be lim-




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                                                                     25                ited or restricted by, common law interpretations re-
                                                                     26                garding when an individual is an employee of an-
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                                                                       1               other person. Subsection (a) shall be considered
                                                                       2               complete as written, and any judicial or agency in-
                                                                       3               terpretation of such subsection shall be limited to
                                                                       4               the explicit requirements of such subsection.
                                                                       5                        ‘‘(2) IMPACT OF WRITTEN OR OTHER AGREE-
                                                                       6               MENTS.—The                    requirements of subsection (a) shall
                                                                       7               not be in any way affected by any agreement, writ-
                                                                       8               ten or otherwise, that purports to demonstrate an
                                                                       9               individual’s acknowledgment of or acquiescence to
                                                                     10                the absence of an employer-employee relationship
                                                                     11                with a particular employer.
                                                                     12                ‘‘(c) NON-COMPETE AGREEMENTS.—
                                                                     13                         ‘‘(1) IN GENERAL.—Notwithstanding any con-
                                                                     14                trary provisions in this Act, in any instance in which
                                                                     15                there is a non-compete agreement between a person
                                                                     16                and an individual who performs labor for such per-
                                                                     17                son, the presence of the non-compete agreement,
                                                                     18                without regard to the legality or enforceability of the
                                                                     19                non-compete agreement, shall be evidence of control
                                                                     20                for purposes of subsection (a)(1), but shall not by
                                                                     21                itself establish an employment relationship between
                                                                     22                such person and the individual.
                                                                     23                         ‘‘(2) DEFINITION                     OF       NON-COMPETE                AGREE-

                                                                     24                MENT.—In              this subsection, the term ‘non-compete



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                                                                     25                agreement’ means an agreement between a person


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                                                                       1               and an individual who performs labor for such per-
                                                                       2               son that restricts the individual from performing, ei-
                                                                       3               ther during or after the individual performs labor
                                                                       4               for such person—
                                                                       5                                 ‘‘(A) any labor for another person;
                                                                       6                                 ‘‘(B) any labor for a specified period of
                                                                       7                        time;
                                                                       8                                 ‘‘(C) any labor in a specified geographical
                                                                       9                        area; or
                                                                     10                                  ‘‘(D) any labor for another person that is
                                                                     11                         similar to the labor such individual performed
                                                                     12                         for the person that is a party to such agree-
                                                                     13                         ment.’’.
                                                                     14                         (2) PRESUMPTION                       OF EMPLOYEE STATUS.—

                                                                     15                Section 4 of the Migrant and Seasonal Agricultural
                                                                     16                Worker Protection Act, as amended by paragraph
                                                                     17                (1), is further amended by adding at the end the fol-
                                                                     18                lowing:
                                                                     19                ‘‘(d) PRESUMPTION OF EMPLOYEE STATUS.—For
                                                                     20 purposes of this Act, including any regulation under this
                                                                     21 Act, an individual performing any service or activity de-
                                                                     22 scribed in section 3(3), including the handling, planting,
                                                                     23 drying, packing, packaging, processing, freezing, or grad-
                                                                     24 ing described in such section, for remuneration for a per-



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                                                                     25 son shall be presumed to be an employee employed in agri-


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                                                                       1 cultural employment of the person, unless the party seek-
                                                                       2 ing to assert otherwise establishes by clear and convincing
                                                                       3 evidence that the individual is not such an employee in
                                                                       4 accordance with this section.’’.
                                                                       5                        (3) MISCLASSIFICATION AS A STANDALONE VIO-
                                                                       6               LATION.—

                                                                       7                                 (A) IN GENERAL.—Title IV of the Migrant
                                                                       8                        and Seasonal Agricultural Worker Protection
                                                                       9                        Act (29 U.S.C. 1841 et seq.) is amended by
                                                                     10                         adding at the end the following:
                                                                     11      ‘‘SEC. 405. MISCLASSIFICATION; INCORPORATION TO FUR-

                                                                     12                              THER VIOLATIONS.

                                                                     13                ‘‘(a) IN GENERAL.—No agricultural employer, agri-
                                                                     14 cultural association, or farm labor contractor shall
                                                                     15 misclassify a migrant agricultural worker or seasonal agri-
                                                                     16 cultural worker employed as an employee by the employer,
                                                                     17 association, or contractor as not a migrant agricultural
                                                                     18 worker or seasonal agricultural worker employed as an
                                                                     19 employee by the employer, association, or contractor for
                                                                     20 purposes of this Act, including any regulation under this
                                                                     21 Act.’’.
                                                                     22                                  (B) INCORPORATION TO FURTHER VIOLA-
                                                                     23                         TIONS.—Section 405 of the Migrant and Sea-

                                                                     24                         sonal Agricultural Worker Protection Act, as



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                                                                       1                        added by subparagraph (A), is amended by add-
                                                                       2                        ing at the end the following:
                                                                       3               ‘‘(b) INCORPORATION TO FURTHER VIOLATIONS.—
                                                                       4 No person shall, for the purpose, in whole or in part, of
                                                                       5 facilitating, or evading detection of, a violation of this Act,
                                                                       6 including a violation of subsection (a) or any regulation
                                                                       7 under this Act—
                                                                       8                        ‘‘(1) incorporate or form, or assist in the incor-
                                                                       9               poration or formation of, a corporation, partnership,
                                                                     10                limited liability corporation, or other entity; or
                                                                     11                         ‘‘(2) pay or collect a fee for use of a foreign or
                                                                     12                domestic corporation, partnership, limited liability
                                                                     13                corporation, or other entity.’’.
                                                                     14                                  (C) PENALTIES.—Section 503(a) of the
                                                                     15                         Migrant and Seasonal Agricultural Worker Pro-
                                                                     16                         tection Act (29 U.S.C. 1853(a)) is amended—
                                                                     17                                          (i) in paragraph (1), by striking
                                                                     18                                  ‘‘paragraph (2)’’ and inserting ‘‘para-
                                                                     19                                  graphs (2), (3), (4), and (5)’’; and
                                                                     20                                          (ii) by adding at the end the fol-
                                                                     21                                  lowing:
                                                                     22                         ‘‘(3) PENALTIES FOR MISCLASSIFICATION AND
                                                                     23                INCORPORATION TO FURTHER VIOLATIONS.—




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                                                                       1                                 ‘‘(A) IN GENERAL.—Any person who vio-
                                                                       2                        lates section 405 shall be subject to a civil pen-
                                                                       3                        alty of—
                                                                       4                                         ‘‘(i) subject to clauses (ii) and (iii),
                                                                       5                                 $10,000;
                                                                       6                                         ‘‘(ii) if the violation is repeated or
                                                                       7                                 willful, $30,000; or
                                                                       8                                         ‘‘(iii) if the violation is widespread, 1
                                                                       9                                 percent of the net profits of the person for
                                                                     10                                  the year in which the person had the high-
                                                                     11                                  est net profits out of all years in which the
                                                                     12                                  person was in such violation.
                                                                     13                                  ‘‘(B) REPEATED, OR WILLFUL, AND WIDE-
                                                                     14                         SPREAD VIOLATIONS.—If a violation of section

                                                                     15                         405 is repeated or willful, as described in sub-
                                                                     16                         paragraph (A)(ii), and is widespread, as de-
                                                                     17                         scribed in subparagraph (A)(iii), the higher
                                                                     18                         penalty of the penalties described in such sub-
                                                                     19                         paragraphs shall apply.
                                                                     20                                  ‘‘(C) PAYMENT OF PENALTIES.—Any pen-
                                                                     21                         alty assessed under subparagraph (A) for a vio-
                                                                     22                         lation of section 405 shall be paid from an ac-
                                                                     23                         count of the person in such violation and not
                                                                     24                         paid, or reimbursed, by any insurance plan that



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                                                                     25                         would indemnify the person from violations of


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                                                                       1                        such section. If a person receives a payment
                                                                       2                        from an insurance plan to indemnify the person
                                                                       3                        from a violation of such section, the person
                                                                       4                        shall transfer the payment to the Secretary, in
                                                                       5                        addition to the amount to be paid from the ac-
                                                                       6                        count of the person for the penalty.’’.
                                                                       7                        (4) PROTECTION                       FROM            RETALIATION        FOR

                                                                       8               BEING AN EMPLOYEE.—Part A of title V of the Mi-

                                                                       9               grant and Seasonal Agricultural Worker Protection
                                                                     10                Act (29 U.S.C. 1851 et seq.) is amended—
                                                                     11                                  (A) by redesignating sections 505 and 506
                                                                     12                         (29 U.S.C. 1855 and 1856) as sections 506 and
                                                                     13                         507, respectively; and
                                                                     14                                  (B) in section 506(a) (29 U.S.C. 1855(a)),
                                                                     15                         as so redesignated—
                                                                     16                                          (i) by striking ‘‘No person’’ and in-
                                                                     17                                  serting ‘‘(1) No person’’; and
                                                                     18                                          (ii) by adding at the end the fol-
                                                                     19                                  lowing:
                                                                     20                ‘‘(2) No person shall intimidate, threaten, restrain,
                                                                     21 coerce, blacklist, discharge, or in any manner discriminate
                                                                     22 against any migrant agricultural worker or seasonal agri-
                                                                     23 cultural worker because such worker—
                                                                     24                         ‘‘(A) is required to be classified as employed in



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                                                                     25                agricultural employment by the person for purposes


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                                                                       1               of this Act, including any regulation under this Act,
                                                                       2               and not as an independent contractor; and
                                                                       3                        ‘‘(B) was classified by the person as an inde-
                                                                       4               pendent contractor prior to the date of enactment of
                                                                       5               the Worker Flexibility and Small Business Protec-
                                                                       6               tion Act of 2020.’’.
                                                                       7                        (5) RULES REGARDING UNLAWFUL DISCHARGE
                                                                       8               OR DISCRIMINATION.—Section                                 506 of the Migrant
                                                                       9               and Seasonal Agricultural Worker Protection Act
                                                                     10                (29 U.S.C. 1855), as so redesignated, is amended by
                                                                     11                adding at the end the following:
                                                                     12                ‘‘(c) RULES REGARDING UNLAWFUL DISCHARGE OR
                                                                     13 DISCRIMINATION.—
                                                                     14                         ‘‘(1) PRESUMPTION OF RETALIATION.—Any ac-
                                                                     15                tion taken by a person described in subsection (a)(1)
                                                                     16                against any migrant agricultural worker or seasonal
                                                                     17                agricultural worker within 90 days of the worker
                                                                     18                taking any action described in such subsection, in-
                                                                     19                cluding taking any such action with respect to exer-
                                                                     20                cising the right pursuant to section 405(a) to not be
                                                                     21                misclassified, shall establish a rebuttable presump-
                                                                     22                tion that the action is discrimination against the
                                                                     23                worker in violation of subsection (a).
                                                                     24                         ‘‘(2) MOTIVATING FACTOR.—Unlawful discrimi-



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                                                                     25                nation, including by intimidation, threat, restraint,


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                                                                       1               coercion, blacklisting, or discharge as described in
                                                                       2               subsection (a), against a migrant agricultural worker
                                                                       3               or seasonal agricultural worker under such sub-
                                                                       4               section, is established when the complaining party
                                                                       5               demonstrates that one or more actions or the classi-
                                                                       6               fication described in such subsection was a moti-
                                                                       7               vating factor for such discrimination, even if such
                                                                       8               discrimination was also motivated by other factors.’’.
                                                                       9                        (6)           MISCLASSIFICATION                                 ENFORCEMENT

                                                                     10                THROUGH              RECLASSIFICATION                      ORDERS            AND   STOP

                                                                     11                WORK ORDERS.—

                                                                     12                                  (A) IN GENERAL.—Part A of title V of the
                                                                     13                         Migrant and Seasonal Agricultural Worker Pro-
                                                                     14                         tection Act (29 U.S.C. 1851 et seq.), as amend-
                                                                     15                         ed by paragraph (5), is further amended by
                                                                     16                         adding at the end the following:
                                                                     17      ‘‘SEC. 508. MISCLASSIFICATION ENFORCEMENT THROUGH

                                                                     18                               RECLASSIFICATION                         ORDERS              AND    STOP

                                                                     19                               WORK ORDERS.

                                                                     20                ‘‘(a) RECLASSIFICATION ORDERS.—
                                                                     21                         ‘‘(1) IN             GENERAL.—If                the Secretary deter-
                                                                     22                mines, after an investigation under section 512, that
                                                                     23                an agricultural employer, agricultural association, or
                                                                     24                farm labor contractor has misclassified 1 or more in-



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                                                                       1               seasonal agricultural workers employed by the em-
                                                                       2               ployer, association, or contractor as not such work-
                                                                       3               ers employed by such employer, association, or con-
                                                                       4               tractor in violation of section 405(a)—
                                                                       5                                 ‘‘(A) the Secretary shall issue, not later
                                                                       6                        than 24 hours after making such determination,
                                                                       7                        an order against the employer, association, or
                                                                       8                        contractor requiring the employer, association,
                                                                       9                        or contractor to immediately classify the 1 or
                                                                     10                         more individuals as employed by the employer,
                                                                     11                         association, or contractor; and
                                                                     12                                  ‘‘(B) the employer, association, or con-
                                                                     13                         tractor shall immediately comply with the order
                                                                     14                         issued under subparagraph (A) or shall other-
                                                                     15                         wise be in violation of section 405(a).
                                                                     16                         ‘‘(2) ORDERS.—An order issued under para-
                                                                     17                graph (1) shall—
                                                                     18                                  ‘‘(A) be effective at the time at which the
                                                                     19                         order is served upon the employer, association,
                                                                     20                         or contractor, which may be accomplished by
                                                                     21                         the posting of a copy of the order in a con-
                                                                     22                         spicuous location at the place of business of the
                                                                     23                         employer, association, or contractor; and
                                                                     24                                  ‘‘(B) remain in effect during any review



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                                                                     25                         under paragraph (3) with respect to such order


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                                                                       1                        and during any hearing and appeal of such
                                                                       2                        order under paragraph (4).
                                                                       3                        ‘‘(3) REVIEW FOR RECONSIDERATION.—
                                                                       4                                 ‘‘(A) IN GENERAL.—An agricultural em-
                                                                       5                        ployer, agricultural association, or farm labor
                                                                       6                        contractor against whom an order is issued
                                                                       7                        under paragraph (1) may request a review by
                                                                       8                        the Secretary to contest the order.
                                                                       9                                 ‘‘(B) REQUESTS.—A request under sub-
                                                                     10                         paragraph (A) shall be made in writing to the
                                                                     11                         Secretary not more than 5 days after the
                                                                     12                         issuance of the order.
                                                                     13                                  ‘‘(C) REQUIREMENTS FOR REVIEW.—
                                                                     14                                          ‘‘(i) IN         GENERAL.—A                    review under
                                                                     15                                  this paragraph shall—
                                                                     16                                                   ‘‘(I) commence not later than 24
                                                                     17                                          hours after a request is made under
                                                                     18                                          subparagraph (B); and
                                                                     19                                                   ‘‘(II) conclude not later than 24
                                                                     20                                          hours after such commencement.
                                                                     21                                          ‘‘(ii)         DETERMINATION.—Not                      later
                                                                     22                                  than 72 hours after a review concludes
                                                                     23                                  under clause (i)(II), the Secretary shall de-
                                                                     24                                  termine whether to affirm, modify, or re-



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                                                                     25                                  voke the contested order.


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                                                                       1                        ‘‘(4) HEARINGS AND APPEALS.—Any person ag-
                                                                       2               grieved by a determination of the Secretary under
                                                                       3               paragraph (3)(C)(ii) may—
                                                                       4                                 ‘‘(A) request a hearing to appeal such de-
                                                                       5                        termination to an administrative law judge; and
                                                                       6                                 ‘‘(B) appeal an order of an administrative
                                                                       7                        law judge under subparagraph (A) to the
                                                                       8                        United States district court for any district in
                                                                       9                        which the person is located or the United States
                                                                     10                         District Court for the District of Columbia.
                                                                     11                         ‘‘(5) TEMPORARY OR PERMANENT INJUNCTIVE
                                                                     12                RELIEF.—The Secretary may petition any court de-

                                                                     13                scribed in paragraph (4)(B) for temporary or perma-
                                                                     14                nent injunctive relief under section 502(a) against
                                                                     15                any agricultural employer, agricultural association,
                                                                     16                or farm labor contractor that violates an order
                                                                     17                issued under paragraph (1). A court shall issue such
                                                                     18                temporary or permanent injunctive relief if the Sec-
                                                                     19                retary has demonstrated it is just and proper.
                                                                     20                         ‘‘(6) SUCCESSFULLY DISPROVING OCCURRENCE
                                                                     21                OF MISCLASSIFICATION.—

                                                                     22                                  ‘‘(A) IN GENERAL.—If an agricultural em-
                                                                     23                         ployer, agricultural association, or farm labor
                                                                     24                         contractor with respect to whom an order was



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                                                                     25                         issued under paragraph (1) successfully proves


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                                                                       1                        through a review under paragraph (3), or a
                                                                       2                        subsequent hearing or appeals proceeding under
                                                                       3                        paragraph (4), that the 1 or more individuals
                                                                       4                        who were the subject of the order were not
                                                                       5                        misclassified in violation of section 405(a)—
                                                                       6                                         ‘‘(i) the order issued under paragraph
                                                                       7                                 (1) shall cease to be in effect;
                                                                       8                                         ‘‘(ii) the employer, association, or con-
                                                                       9                                 tractor shall not be liable for any applica-
                                                                     10                                  ble back pay, damages, or civil penalties
                                                                     11                                  owed by the employer, association, or con-
                                                                     12                                  tractor under this Act (including any regu-
                                                                     13                                  lation under this Act) with respect to the
                                                                     14                                  misclassification of such 1 or more individ-
                                                                     15                                  uals; and
                                                                     16                                          ‘‘(iii) the Secretary of Labor, adminis-
                                                                     17                                  trative law judge, or court, as applicable,
                                                                     18                                  shall award (and the Secretary of the
                                                                     19                                  Treasury shall, in accordance with sub-
                                                                     20                                  paragraph (B), pay) to the employer, asso-
                                                                     21                                  ciation, or contractor reasonable fees and
                                                                     22                                  expenses of attorneys in the same manner
                                                                     23                                  as such fees and expenses could be award-
                                                                     24                                  ed under section 2412 of title 28, United



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                                                                     25                                  States Code, if the employer, association,


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                                                                       1                                 or contractor was a prevailing party and
                                                                       2                                 the review, hearing, or appeals proceeding
                                                                       3                                 was a civil action brought against the
                                                                       4                                 United States.
                                                                       5                                 ‘‘(B) SOURCE OF FUNDS.—The Secretary
                                                                       6                        of the Treasury shall, upon notification by the
                                                                       7                        Secretary of Labor, administrative law judge, or
                                                                       8                        court, as applicable, pay any fees or expenses
                                                                       9                        awarded under subparagraph (A)(iii) from
                                                                     10                         amounts in the general fund of the Treasury.
                                                                     11                ‘‘(b) STOP WORK ORDERS.—
                                                                     12                         ‘‘(1) IN GENERAL.—In any case where an agri-
                                                                     13                cultural employer, agricultural association, or farm
                                                                     14                labor contractor does not comply with a reclassifica-
                                                                     15                tion order issued by the Secretary under subsection
                                                                     16                (a)(1), with respect to 2 or more individuals who are
                                                                     17                misclassified in violation of section 405(a), the Sec-
                                                                     18                retary shall issue—
                                                                     19                                  ‘‘(A) subject to subparagraph (B), an
                                                                     20                         order against the employer, association, or con-
                                                                     21                         tractor requiring the cessation of all business
                                                                     22                         operations of such employer, association, or
                                                                     23                         contractor at the location of the violation; or
                                                                     24                                  ‘‘(B) if an order described in subparagraph



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                                                                     25                         (A) has been previously issued against the em-


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                                                                                                                           128
                                                                       1                        ployer, association, or contractor by any Fed-
                                                                       2                        eral, State, or local agency for misclassifying an
                                                                       3                        individual who is a migrant agricultural worker
                                                                       4                        or seasonal agricultural worker employed as an
                                                                       5                        employee by the employer, association, or con-
                                                                       6                        tractor as not such an employee in violation of
                                                                       7                        section 405(a), or an equivalent State or local
                                                                       8                        law as determined by the Secretary, an order
                                                                       9                        against the employer, association, or contractor
                                                                     10                         requiring the cessation of all business oper-
                                                                     11                         ations of such employer, association, or con-
                                                                     12                         tractor at all business locations of the employer,
                                                                     13                         association, or contractor, including locations
                                                                     14                         other          than             the         location              where   the
                                                                     15                         misclassification occurred.
                                                                     16                         ‘‘(2) ORDERS.—
                                                                     17                                  ‘‘(A) APPLICABILITY.—An order issued
                                                                     18                         under paragraph (1) shall—
                                                                     19                                          ‘‘(i) be effective at the time at which
                                                                     20                                  the order is served upon the employer, as-
                                                                     21                                  sociation, or contractor, which may be ac-
                                                                     22                                  complished by the posting of a copy of the
                                                                     23                                  order in a conspicuous location at the place
                                                                     24                                  of business of the employer, association, or



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                                                                     25                                  contractor; and


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                                                                       1                                         ‘‘(ii) remain in effect—
                                                                       2                                                  ‘‘(I) during any review conducted
                                                                       3                                         under paragraph (3) with respect to
                                                                       4                                         such order and during any hearing
                                                                       5                                         and appeal of such order under para-
                                                                       6                                         graph (4); and
                                                                       7                                                  ‘‘(II) until the Secretary issues a
                                                                       8                                         release order under subparagraph (B).
                                                                       9                                 ‘‘(B) RELEASE ORDERS.—
                                                                     10                                          ‘‘(i) IN GENERAL.—An order issued
                                                                     11                                  under paragraph (1) (that is not revoked
                                                                     12                                  by the Secretary or held unlawful or set
                                                                     13                                  aside by an administrative law judge or a
                                                                     14                                  court) shall remain in effect until the Sec-
                                                                     15                                  retary issues another order releasing the
                                                                     16                                  order issued under such paragraph upon a
                                                                     17                                  finding by the Secretary that the employer,
                                                                     18                                  association, or contractor—
                                                                     19                                                   ‘‘(I) has corrected the violation of
                                                                     20                                          section 405(a) with respect to the 2 or
                                                                     21                                          more              individuals                   who    were
                                                                     22                                          misclassified resulting in the order;
                                                                     23                                          and
                                                                     24                                                   ‘‘(II) has agreed to a payment



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                                                                     25                                          schedule for all applicable back pay,


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                                                                                                                           130
                                                                       1                                         damages, and civil penalties owed by
                                                                       2                                         the employer, association, or con-
                                                                       3                                         tractor under this Act, including any
                                                                       4                                         regulation under this Act.
                                                                       5                                         ‘‘(ii) REINSTATEMENT.—If, at any
                                                                       6                                 time after the Secretary issues a release
                                                                       7                                 order under clause (i), the employer, asso-
                                                                       8                                 ciation, or contractor fails to comply with
                                                                       9                                 the terms of the payment schedule de-
                                                                     10                                  scribed in clause (i)(II), the Secretary shall
                                                                     11                                  reinstate the order issued under paragraph
                                                                     12                                  (1) until the employer, association, or con-
                                                                     13                                  tractor is in compliance with such terms.
                                                                     14                         ‘‘(3) REVIEW FOR RECONSIDERATION.—
                                                                     15                                  ‘‘(A) IN GENERAL.—An agricultural em-
                                                                     16                         ployer, agricultural association, or farm labor
                                                                     17                         contractor against whom an order is issued
                                                                     18                         under paragraph (1) may request a review by
                                                                     19                         the Secretary to contest the order.
                                                                     20                                  ‘‘(B) REQUESTS.—A request under sub-
                                                                     21                         paragraph (A) shall be made in writing to the
                                                                     22                         Secretary not more than 5 days after the
                                                                     23                         issuance of the order.
                                                                     24                                  ‘‘(C) REQUIREMENTS FOR REVIEW.—



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                                                                       1                                         ‘‘(i) IN         GENERAL.—A                    review under
                                                                       2                                 this paragraph shall—
                                                                       3                                                  ‘‘(I) commence not later than 24
                                                                       4                                         hours after a request is made under
                                                                       5                                         subparagraph (B); and
                                                                       6                                                  ‘‘(II) conclude not later than 24
                                                                       7                                         hours after such commencement.
                                                                       8                                         ‘‘(ii)         DETERMINATION.—Not                      later
                                                                       9                                 than 72 hours after a review concludes
                                                                     10                                  under clause (i)(II), the Secretary shall de-
                                                                     11                                  termine whether to affirm, modify, or re-
                                                                     12                                  voke the contested order.
                                                                     13                         ‘‘(4) APPEALS.—Any person aggrieved by a de-
                                                                     14                termination of the Secretary under paragraph
                                                                     15                (3)(C)(ii) may—
                                                                     16                                  ‘‘(A) appeal such determination to an ad-
                                                                     17                         ministrative law judge; and
                                                                     18                                  ‘‘(B) appeal an order of an administrative
                                                                     19                         law judge under subparagraph (A) to the
                                                                     20                         United States district court for any district in
                                                                     21                         which the person is located or the United States
                                                                     22                         District Court for the District of Columbia.
                                                                     23                         ‘‘(5) TEMPORARY OR PERMANENT INJUNCTIVE
                                                                     24                RELIEF.—The                   Secretary may petition a court de-



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                                                                     25                scribed in paragraph (4)(B) for temporary or perma-


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                                                                                                                           132
                                                                       1               nent injunctive relief under section 502(a) against
                                                                       2               any agricultural employer, agricultural association,
                                                                       3               or farm labor contractor that violates an order
                                                                       4               issued under paragraph (1). A court shall issue such
                                                                       5               temporary or permanent injunctive relief if the Sec-
                                                                       6               retary has demonstrated it is just and proper.
                                                                       7                        ‘‘(6) COMPENSATION FOR LOST WORK.—
                                                                       8                                 ‘‘(A) IN GENERAL.—Subject to subpara-
                                                                       9                        graph (B), an agricultural employer, agricul-
                                                                     10                         tural association, or farm labor contractor with
                                                                     11                         respect to whom an order is issued under para-
                                                                     12                         graph (1) shall pay each migrant agricultural
                                                                     13                         worker or seasonal agricultural worker em-
                                                                     14                         ployed by the employer, association, or con-
                                                                     15                         tractor, who loses compensation due to the work
                                                                     16                         of such worker ceasing as a result of such
                                                                     17                         order, the compensation that would be owed to
                                                                     18                         such worker if the order was not issued.
                                                                     19                                  ‘‘(B)        LIMITATION.—Compensation                          paid
                                                                     20                         under subparagraph (A) shall be for each day,
                                                                     21                         not to exceed 10 days, for which the migrant
                                                                     22                         agricultural worker or seasonal agricultural
                                                                     23                         worker would be paid if the order described in
                                                                     24                         such subparagraph were not in effect.



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                                                                                                                           133
                                                                       1                        ‘‘(7) SUCCESSFULLY DISPROVING OCCURRENCE
                                                                       2               OF MISCLASSIFICATION.—

                                                                       3                                 ‘‘(A) IN GENERAL.—In any case where an
                                                                       4                        agricultural employer, agricultural association,
                                                                       5                        or farm labor contractor with respect to whom
                                                                       6                        an order was issued under paragraph (1) suc-
                                                                       7                        cessfully proves through a review under para-
                                                                       8                        graph (3) or a subsequent hearing or appeals
                                                                       9                        proceeding under paragraph (4) that the 2 or
                                                                     10                         more individuals who were the subject of the
                                                                     11                         order were not misclassified in violation of sec-
                                                                     12                         tion 405(a)—
                                                                     13                                          ‘‘(i) the order issued under paragraph
                                                                     14                                  (1), and any order issued against the em-
                                                                     15                                  ployer, association, or contractor under
                                                                     16                                  subsection (a)(1), with respect to such 2 or
                                                                     17                                  more individuals, shall cease to be in ef-
                                                                     18                                  fect;
                                                                     19                                          ‘‘(ii) the employer, association, or con-
                                                                     20                                  tractor shall not be liable for any applica-
                                                                     21                                  ble back pay, damages, or civil penalties
                                                                     22                                  owed by the employer, association, or con-
                                                                     23                                  tractor under this Act (including any regu-
                                                                     24                                  lation under this Act) with respect to the



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                                                                       1                                 misclassification of such 2 or more individ-
                                                                       2                                 uals; and
                                                                       3                                         ‘‘(iii) the Secretary of Labor, adminis-
                                                                       4                                 trative law judge, or court shall award
                                                                       5                                 (and the Secretary of the Treasury shall,
                                                                       6                                 in accordance with subparagraph (B), pay)
                                                                       7                                 to the employer, association, or con-
                                                                       8                                 tractor—
                                                                       9                                                  ‘‘(I) an amount equal to any de-
                                                                     10                                          monstrable lost net profits resulting
                                                                     11                                          from the order, as demonstrated by
                                                                     12                                          clear and convincing evidence; and
                                                                     13                                                   ‘‘(II) reasonable fees and ex-
                                                                     14                                          penses of attorneys in the same man-
                                                                     15                                          ner as such fees and expenses could
                                                                     16                                          be awarded under section 2412 of title
                                                                     17                                          28, United States Code, if the em-
                                                                     18                                          ployer, association, or contractor was
                                                                     19                                          a prevailing party and the review,
                                                                     20                                          hearing, or appeals proceeding was a
                                                                     21                                          civil action brought by or against the
                                                                     22                                          United States.
                                                                     23                                  ‘‘(B) SOURCE OF FUNDS.—The Secretary
                                                                     24                         of the Treasury shall, upon notification by the



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                                                                     25                         Secretary of Labor, administrative law judge, or


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                                                                                                                           135
                                                                       1                        a court, as applicable, pay any amounts, fees,
                                                                       2                        or       expenses           awarded              under          subparagraph
                                                                       3                        (A)(iii) from amounts available in the general
                                                                       4                        fund of the Treasury.’’.
                                                                       5                                 (B) PENALTIES.—Section 503(a) of the
                                                                       6                        Migrant and Seasonal Agricultural Worker Pro-
                                                                       7                        tection Act (29 U.S.C. 1853(a)), as amended by
                                                                       8                        paragraph (3)(C), is further amended by adding
                                                                       9                        at the end the following:
                                                                     10                         ‘‘(4) PENALTIES FOR VIOLATING RECLASSIFICA-
                                                                     11                TION ORDERS.—

                                                                     12                                  ‘‘(A) CIVIL PENALTIES.—Any person who
                                                                     13                         violates a reclassification order issued by the
                                                                     14                         Secretary under section 508(a)(1) shall be sub-
                                                                     15                         ject to a civil penalty of not less than $5,000
                                                                     16                         per day, with each day constituting a separate
                                                                     17                         offense.
                                                                     18                                  ‘‘(B) ADDITIONAL DAMAGES.—In any case
                                                                     19                         in which an agricultural employer, agricultural
                                                                     20                         association, or farm labor contractor contests a
                                                                     21                         reclassification order issued under paragraph
                                                                     22                         (1) of section 508(a) in a review under para-
                                                                     23                         graph (3) of such section, a hearing under
                                                                     24                         paragraph (4)(A) of such section, and a subse-



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                                                                     25                         quent judicial proceeding under paragraph


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                                                                                                                           136
                                                                       1                        (4)(B) of such section, and the court in such
                                                                       2                        proceeding rules in favor of the Secretary—
                                                                       3                                         ‘‘(i) the court shall determine if, dur-
                                                                       4                                 ing the period between the issuance of such
                                                                       5                                 order and the conclusion of the proceeding,
                                                                       6                                 the employer, association, or contractor
                                                                       7                                 violated such order by not classifying the 1
                                                                       8                                 or more individuals as employees employed
                                                                       9                                 by the employer, association, or contractor
                                                                     10                                  during that period; and
                                                                     11                                          ‘‘(ii) if the court determines the em-
                                                                     12                                  ployer, association, or contractor so vio-
                                                                     13                                  lated the order during that period—
                                                                     14                                                   ‘‘(I) the court shall determine the
                                                                     15                                          amount of net profits derived by the
                                                                     16                                          employer, association, or contractor
                                                                     17                                          from the individuals’ labor during that
                                                                     18                                          period; and
                                                                     19                                                   ‘‘(II) the court shall assess dam-
                                                                     20                                          ages in the amount determined under
                                                                     21                                          subclause (I), which damages shall be
                                                                     22                                          awarded to such individuals by the
                                                                     23                                          court.’’.
                                                                     24                (f) DAVIS-BACON ACT.—



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                                                                                                                           137
                                                                       1                        (1) STRENGTHENING EMPLOYEE TEST.—Sub-
                                                                       2               chapter IV of chapter 31 of title 40, United States
                                                                       3               Code, is amended by inserting after section 3141 the
                                                                       4               following:
                                                                       5 ‘‘§ 3141a. Employee test
                                                                       6               ‘‘(a) IN GENERAL.—For purposes of this subchapter
                                                                       7 and except as provided in subsection (c), a laborer or me-
                                                                       8 chanic performing any labor under a contract or sub-
                                                                       9 contract to which this subchapter applies shall be an em-
                                                                     10 ployee employed by the contractor or subcontractor of the
                                                                     11 contract or subcontract and not an independent con-
                                                                     12 tractor, unless—
                                                                     13                         ‘‘(1) the laborer or mechanic is free from con-
                                                                     14                trol and direction in connection with the perform-
                                                                     15                ance of the labor, both under the contract or sub-
                                                                     16                contract for the performance of the labor and in
                                                                     17                fact;
                                                                     18                         ‘‘(2) the labor is performed outside the usual
                                                                     19                course of the business of such contractor or subcon-
                                                                     20                tractor; and
                                                                     21                         ‘‘(3) the laborer or mechanic is customarily en-
                                                                     22                gaged in an independently established trade, occupa-
                                                                     23                tion, profession, or business of the same nature as
                                                                     24                that involved in the labor performed.



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                                                                     25                ‘‘(b) CLARIFICATIONS.—


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                                                                       1                        ‘‘(1) RELATIONSHIP WITH COMMON LAW.—Sub-
                                                                       2               section (a) is not a codification of the common law
                                                                       3               and shall not be interpreted to reflect, or to be lim-
                                                                       4               ited or restricted by, common law interpretations re-
                                                                       5               garding when an individual is an employee of an-
                                                                       6               other person. Subsection (a) shall be considered
                                                                       7               complete as written, and any judicial or agency in-
                                                                       8               terpretation of such subsection shall be limited to
                                                                       9               the explicit requirements of such subsection.
                                                                     10                         ‘‘(2) IMPACT OF WRITTEN OR OTHER AGREE-
                                                                     11                MENTS.—The                    requirements of subsection (a) shall
                                                                     12                not be in any way affected by any agreement, writ-
                                                                     13                ten or otherwise, that purports to demonstrate an
                                                                     14                individual’s acknowledgment of or acquiescence to
                                                                     15                the absence of an employer-employee relationship
                                                                     16                with a particular employer.
                                                                     17                ‘‘(c) NON-COMPETE AGREEMENTS.—
                                                                     18                         ‘‘(1) IN GENERAL.—Notwithstanding any con-
                                                                     19                trary provisions in this subchapter, in any instance
                                                                     20                in which there is a non-compete agreement between
                                                                     21                a person and an individual who performs labor for
                                                                     22                such person, the presence of the non-compete agree-
                                                                     23                ment, without regard to the legality or enforceability
                                                                     24                of the non-compete agreement, shall be evidence of



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                                                                     25                control for purposes of subsection (a)(1), but shall


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                                                                       1               not by itself establish an employment relationship
                                                                       2               between such person and the individual.
                                                                       3                        ‘‘(2) DEFINITION                    OF       NON-COMPETE                AGREE-

                                                                       4               MENT.—In              this subsection, the term ‘non-compete
                                                                       5               agreement’ means an agreement between a person
                                                                       6               and an individual who performs labor for such per-
                                                                       7               son that restricts the individual from performing, ei-
                                                                       8               ther during or after the individual performs labor
                                                                       9               for such person—
                                                                     10                                  ‘‘(A) any labor for another person;
                                                                     11                                  ‘‘(B) any labor for a specified period of
                                                                     12                         time;
                                                                     13                                  ‘‘(C) any labor in a specified geographical
                                                                     14                         area; or
                                                                     15                                  ‘‘(D) any labor for another person that is
                                                                     16                         similar to the labor such individual performed
                                                                     17                         for the person that is a party to such agree-
                                                                     18                         ment.’’.
                                                                     19                         (2) PRESUMPTION                       OF EMPLOYEE STATUS.—

                                                                     20                Section 3141a of title 40, United States Code, as
                                                                     21                added by paragraph (1), is amended by adding at
                                                                     22                the end the following:
                                                                     23                ‘‘(d) PRESUMPTION OF EMPLOYEE STATUS.—For
                                                                     24 purposes of this subchapter, a laborer or mechanic per-



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                                                                       1 which this subchapter applies shall be an employee em-
                                                                       2 ployed by the contractor or subcontractor of the contract
                                                                       3 or subcontract and not an independent contractor, unless
                                                                       4 the party seeking to assert otherwise establishes by clear
                                                                       5 and convincing evidence that the laborer or mechanic is
                                                                       6 not such an employee in accordance with this section.’’.
                                                                       7                        (3) MISCLASSIFICATION AS A STANDALONE VIO-
                                                                       8               LATION;            INCORPORATION                      TO       FURTHER           VIOLA-

                                                                       9               TIONS.—Subchapter                        IV of chapter 31 of title 40,
                                                                     10                United States Code, is amended by inserting after
                                                                     11                section 3144, the following:
                                                                     12 ‘‘§ 3144a. Prohibitions against misclassification, in-
                                                                     13                             corporation to further violations, and re-

                                                                     14                             taliation; reclassification orders and stop

                                                                     15                             work orders

                                                                     16                ‘‘(a) MISCLASSIFICATION.—No contractor or subcon-
                                                                     17 tractor of a contract or subcontract to which this sub-
                                                                     18 chapter applies shall misclassify a laborer or mechanic,
                                                                     19 who is an employee of the contractor or subcontractor and
                                                                     20 is performing any labor under the contract or subcontract,
                                                                     21 as not an employee of the contractor or subcontractor for
                                                                     22 purposes of this subchapter.
                                                                     23                ‘‘(b) INCORPORATION TO FURTHER VIOLATIONS.—
                                                                     24 No contractor or subcontractor, for the purpose, in whole



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                                                                     25 or in part, of facilitating, or evading detection of, a viola-


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                                                                       1 tion of this subchapter, including a violation of subsection
                                                                       2 (a), shall—
                                                                       3                        ‘‘(1) incorporate or form, or assist in the incor-
                                                                       4               poration or formation of, a corporation, partnership,
                                                                       5               limited liability corporation, or other entity; or
                                                                       6                        ‘‘(2) pay or collect a fee for use of a foreign or
                                                                       7               domestic corporation, partnership, limited liability
                                                                       8               corporation, or other entity.’’.
                                                                       9                        (4) PROTECTION                       FROM            RETALIATION        FOR

                                                                     10                BEING AN EMPLOYEE; PRESUMPTION OF RETALIA-

                                                                     11                TION.—Section                 3144a of title 40, United States
                                                                     12                Code, added by paragraph (3), is amended by add-
                                                                     13                ing at the end the following:
                                                                     14                ‘‘(c) RETALIATION.—
                                                                     15                         ‘‘(1) IN GENERAL.—A contractor or subcon-
                                                                     16                tractor of a contract or subcontract to which this
                                                                     17                subchapter applies shall not discharge or in any
                                                                     18                other manner discriminate against a laborer or me-
                                                                     19                chanic who is employed by the contractor or subcon-
                                                                     20                tractor and is performing any labor under the con-
                                                                     21                tract or subcontract, because—
                                                                     22                                  ‘‘(A) such laborer or mechanic has filed
                                                                     23                         any complaint or instituted or caused to be in-
                                                                     24                         stituted any proceeding under or related to this



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                                                                     25                         subchapter, or has testified or is about to tes-


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                                                                                                                           142
                                                                       1                        tify in any such proceeding, or has served or is
                                                                       2                        about to serve on an industry committee; or
                                                                       3                                 ‘‘(B) such laborer or mechanic—
                                                                       4                                         ‘‘(i) is required, pursuant to the en-
                                                                       5                                 actment of the Worker Flexibility and
                                                                       6                                 Small Business Protection Act of 2020, to
                                                                       7                                 be classified as an employee of the con-
                                                                       8                                 tractor or subcontractor for purposes of
                                                                       9                                 this subchapter and not an independent
                                                                     10                                  contractor; and
                                                                     11                                          ‘‘(ii) was classified by the contractor
                                                                     12                                  or subcontractor as an independent con-
                                                                     13                                  tractor prior to the date of enactment of
                                                                     14                                  the Worker Flexibility and Small Business
                                                                     15                                  Protection Act of 2020.
                                                                     16                         ‘‘(2)       RULES               REGARDING               UNLAWFUL        DIS-

                                                                     17                CHARGE OR DISCRIMINATION.—

                                                                     18                                  ‘‘(A) PRESUMPTION                        OF RETALIATION.—

                                                                     19                         Any action taken by a contractor or subcon-
                                                                     20                         tractor of a contract or subcontract to which
                                                                     21                         this subchapter applies against a laborer or me-
                                                                     22                         chanic who is employed by the contractor or
                                                                     23                         subcontractor, and is performing any labor
                                                                     24                         under the contract or subcontract, within 90



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                                                                     25                         days of the laborer or mechanic taking any ac-


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                                                                                                                           143
                                                                       1                        tion described in paragraph (1)(A), including
                                                                       2                        taking any such action with respect to exer-
                                                                       3                        cising the right of the laborer or mechanic pur-
                                                                       4                        suant to subsection (a) to not be misclassified,
                                                                       5                        shall establish a rebuttable presumption that
                                                                       6                        the action is discrimination against the laborer
                                                                       7                        or mechanic in violation of paragraph (1).
                                                                       8                                 ‘‘(B) MOTIVATING FACTOR.—Unlawful dis-
                                                                       9                        charge or other discrimination against a laborer
                                                                     10                         or mechanic under paragraph (1) is established
                                                                     11                         when the complaining party demonstrates that
                                                                     12                         one of the actions or the classification described
                                                                     13                         in such paragraph was a motivating factor for
                                                                     14                         such discharge or other discrimination, even if
                                                                     15                         such discharge or other discrimination was also
                                                                     16                         motivated by other factors.’’.
                                                                     17                         (5)           MISCLASSIFICATION                                 ENFORCEMENT

                                                                     18                THROUGH              RECLASSIFICATION                      ORDERS            AND   STOP

                                                                     19                WORK ORDERS.—Section 3144a of title 40, United

                                                                     20                States Code, as amended by paragraph (4), is fur-
                                                                     21                ther amended by adding at the end the following:
                                                                     22                ‘‘(d) MISCLASSIFICATION ENFORCEMENT THROUGH
                                                                     23 RECLASSIFICATION ORDERS.—
                                                                     24                         ‘‘(1) IN GENERAL.—If the Secretary determines



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                                                                     25                that a contractor or subcontractor of a contract or


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                                                                       1               subcontract to which this subchapter applies has
                                                                       2               misclassified 1 or more laborers or mechanics in vio-
                                                                       3               lation of subsection (a)—
                                                                       4                                 ‘‘(A) the Secretary shall issue, not later
                                                                       5                        than 24 hours after making such determination,
                                                                       6                        an order against the contractor or subcon-
                                                                       7                        tractor requiring the contractor or subcon-
                                                                       8                        tractor to immediately classify the 1 or more la-
                                                                       9                        borers or mechanics as employees of the con-
                                                                     10                         tractor or subcontractor; and
                                                                     11                                  ‘‘(B) the contractor or subcontractor shall
                                                                     12                         immediately comply with the order issued under
                                                                     13                         subparagraph (A) or shall otherwise be in viola-
                                                                     14                         tion of subsection (a).
                                                                     15                         ‘‘(2) ORDERS.—An order issued under para-
                                                                     16                graph (1) shall—
                                                                     17                                  ‘‘(A) be effective at the time at which the
                                                                     18                         order is served upon the contractor or subcon-
                                                                     19                         tractor, which may be accomplished by the post-
                                                                     20                         ing of a copy of the order in a conspicuous loca-
                                                                     21                         tion at the place of business of the contractor
                                                                     22                         or subcontractor; and
                                                                     23                                  ‘‘(B) remain in effect during any review
                                                                     24                         conducted under paragraph (3) and during any



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                                                                                                                           145
                                                                       1                        hearing and appeal of such order under para-
                                                                       2                        graph (4).
                                                                       3                        ‘‘(3) REVIEW FOR RECONSIDERATION.—
                                                                       4                                 ‘‘(A) IN GENERAL.—A contractor or sub-
                                                                       5                        contractor against whom an order is issued
                                                                       6                        under paragraph (1) may request a review by
                                                                       7                        the Secretary to contest the order.
                                                                       8                                 ‘‘(B) REQUESTS.—A request under sub-
                                                                       9                        paragraph (A) shall be made in writing to the
                                                                     10                         Secretary not more than 5 days after the
                                                                     11                         issuance of the order.
                                                                     12                                  ‘‘(C) REQUIREMENTS FOR REVIEW.—
                                                                     13                                          ‘‘(i) IN GENERAL.—A hearing under
                                                                     14                                  this paragraph shall—
                                                                     15                                                   ‘‘(I) commence not later than 24
                                                                     16                                          hours after a request is made under
                                                                     17                                          subparagraph (B); and
                                                                     18                                                   ‘‘(II) conclude not later than 24
                                                                     19                                          hours after such commencement.
                                                                     20                                          ‘‘(ii)         DETERMINATION.—Not                      later
                                                                     21                                  than 72 hours after a review concludes
                                                                     22                                  under clause (i)(II), the Secretary shall de-
                                                                     23                                  termine whether to affirm, modify, or re-
                                                                     24                                  voke the contested order.



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                                                                       1                        ‘‘(4) HEARINGS AND APPEALS.—Any person ag-
                                                                       2               grieved by a determination of the Secretary under
                                                                       3               paragraph (3)(C)(ii) may—
                                                                       4                                 ‘‘(A) request a hearing to appeal such de-
                                                                       5                        termination to an administrative law judge; and
                                                                       6                                 ‘‘(B) appeal an order of an administrative
                                                                       7                        law judge under subparagraph (A) to a court of
                                                                       8                        competent jurisdiction.
                                                                       9                        ‘‘(5) TEMPORARY OR PERMANENT INJUNCTIVE
                                                                     10                RELIEF.—The Secretary may petition any court of

                                                                     11                competent jurisdiction for temporary or permanent
                                                                     12                injunctive relief against any contractor or subcon-
                                                                     13                tractor that violates an order issued under para-
                                                                     14                graph (1). A court shall issue such temporary or
                                                                     15                permanent injunctive relief if the Secretary has dem-
                                                                     16                onstrated it is just and proper.
                                                                     17                         ‘‘(6) SUCCESSFULLY DISPROVING OCCURRENCE
                                                                     18                OF MISCLASSIFICATION.—

                                                                     19                                  ‘‘(A) IN GENERAL.—If a contractor or sub-
                                                                     20                         contractor with respect to whom an order was
                                                                     21                         issued under paragraph (1) successfully proves
                                                                     22                         through a review under paragraph (3), or a
                                                                     23                         subsequent hearing or appeals proceeding under
                                                                     24                         paragraph (4), that the 1 or more laborers or



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                                                                     25                         mechanics who were the subject of the order


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                                                                       1                        were not misclassified in violation of subsection
                                                                       2                        (a)—
                                                                       3                                         ‘‘(i) the order issued under paragraph
                                                                       4                                 (1) shall cease to be in effect;
                                                                       5                                         ‘‘(ii) the contractor or subcontractor
                                                                       6                                 shall not be liable for any applicable back
                                                                       7                                 pay, damages, or civil penalties owed by
                                                                       8                                 the contractor or subcontractor under this
                                                                       9                                 subchapter                 with            respect             to   the
                                                                     10                                  misclassification of such 2 or more laborers
                                                                     11                                  or mechanics; and
                                                                     12                                          ‘‘(iii) the Secretary of Labor, adminis-
                                                                     13                                  trative law judge, or court, as applicable,
                                                                     14                                  shall award (and the Secretary of the
                                                                     15                                  Treasury shall, in accordance with sub-
                                                                     16                                  paragraph (B), pay) to the contractor or
                                                                     17                                  subcontractor reasonable fees and expenses
                                                                     18                                  of attorneys in the same manner as such
                                                                     19                                  fees and expenses could be awarded under
                                                                     20                                  section 2412 of title 28, United States
                                                                     21                                  Code, if the contractor or subcontractor
                                                                     22                                  was a prevailing party and the hearing or
                                                                     23                                  appeals proceeding was a civil action
                                                                     24                                  brought by or against the United States.



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                                                                       1                                 ‘‘(B) SOURCE OF FUNDS.—The Secretary
                                                                       2                        of the Treasury shall, upon notification by the
                                                                       3                        Secretary of Labor, administrative law judge, or
                                                                       4                        court, as applicable, pay any fees or expenses
                                                                       5                        awarded under subparagraph (A)(iii) from
                                                                       6                        amounts in the general fund of the Treasury.
                                                                       7               ‘‘(e) MISCLASSIFICATION ENFORCEMENT THROUGH
                                                                       8 STOP WORK ORDERS.—
                                                                       9                        ‘‘(1) IN GENERAL.—In any case where a con-
                                                                     10                tractor or subcontractor of a contract or subcontract
                                                                     11                to which this subchapter applies does not comply
                                                                     12                with a reclassification order issued by the Secretary
                                                                     13                under subsection (d)(1), with respect to 2 or more
                                                                     14                laborers or mechanics who are misclassified in viola-
                                                                     15                tion of subsection (a), the Secretary shall issue—
                                                                     16                                  ‘‘(A) subject to subparagraph (B), an
                                                                     17                         order against the contractor or subcontractor
                                                                     18                         requiring the cessation of all business oper-
                                                                     19                         ations of such contractor or subcontractor at
                                                                     20                         the location of the violation; or
                                                                     21                                  ‘‘(B) if an order described in subparagraph
                                                                     22                         (A) has been previously issued against the con-
                                                                     23                         tractor or subcontractor by any Federal, State,
                                                                     24                         or local agency for misclassifying a laborer or



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                                                                     25                         mechanic employed by the contractor or subcon-


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                                                                       1                        tractor and performing any labor under the
                                                                       2                        contract or subcontract, as not an employee of
                                                                       3                        the contractor or subcontractor in violation of
                                                                       4                        subsection (a), or an equivalent State or local
                                                                       5                        law as determined by the Secretary, an order
                                                                       6                        against the contractor or subcontractor requir-
                                                                       7                        ing the cessation of all business operations of
                                                                       8                        such contractor or subcontractor at all business
                                                                       9                        locations of the contractor or subcontractor, in-
                                                                     10                         cluding locations other than the location where
                                                                     11                         the misclassification occurred.
                                                                     12                         ‘‘(2) ORDERS.—
                                                                     13                                  ‘‘(A) APPLICABILITY.—An order issued
                                                                     14                         under paragraph (1) shall—
                                                                     15                                          ‘‘(i) be effective at the time at which
                                                                     16                                  the order is served upon the contractor or
                                                                     17                                  subcontractor, which may be accomplished
                                                                     18                                  by the posting of a copy of the order in a
                                                                     19                                  conspicuous location at the place of busi-
                                                                     20                                  ness of the contractor or subcontractor;
                                                                     21                                  and
                                                                     22                                          ‘‘(ii) remain in effect—
                                                                     23                                                   ‘‘(I) during any review conducted
                                                                     24                                          under paragraph (3) with respect to



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                                                                     25                                          such order and during any hearing


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                                                                       1                                         and appeal of such order under para-
                                                                       2                                         graph (4); and
                                                                       3                                                  ‘‘(II) until the Secretary issues a
                                                                       4                                         release order under subparagraph (B).
                                                                       5                                 ‘‘(B) RELEASE ORDERS.—
                                                                       6                                         ‘‘(i) IN GENERAL.—An order issued
                                                                       7                                 under paragraph (1) (that is not revoked
                                                                       8                                 by the Secretary or held unlawful or set
                                                                       9                                 aside by an administrative law judge or a
                                                                     10                                  court) shall remain in effect until the Sec-
                                                                     11                                  retary issues another order releasing the
                                                                     12                                  order issued under such paragraph upon a
                                                                     13                                  finding by the Secretary that the con-
                                                                     14                                  tractor or subcontractor—
                                                                     15                                                   ‘‘(I) has corrected the violation of
                                                                     16                                          subsection (a) with respect to the 2 or
                                                                     17                                          more laborers or mechanics who were
                                                                     18                                          misclassified resulting in the order;
                                                                     19                                          and
                                                                     20                                                   ‘‘(II) has agreed to a payment
                                                                     21                                          schedule for all applicable back pay,
                                                                     22                                          damages, and civil penalties owed by
                                                                     23                                          the contractor or subcontractor under
                                                                     24                                          this subchapter.



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                                                                       1                                         ‘‘(ii) REINSTATEMENT.—If, at any
                                                                       2                                 time after the Secretary issues a release
                                                                       3                                 order under clause (i), the contractor or
                                                                       4                                 subcontractor fails to comply with the
                                                                       5                                 terms of the payment schedule described in
                                                                       6                                 clause (i)(II), the Secretary shall reinstate
                                                                       7                                 the order issued under paragraph (1) until
                                                                       8                                 the contractor or subcontractor is in com-
                                                                       9                                 pliance with such terms.
                                                                     10                         ‘‘(3) REVIEW FOR RECONSIDERATION.—
                                                                     11                                  ‘‘(A) IN GENERAL.—A contractor or sub-
                                                                     12                         contractor against whom an order is issued
                                                                     13                         under paragraph (1) may request a review by
                                                                     14                         the Secretary to contest the order.
                                                                     15                                  ‘‘(B) REQUESTS.—A request under sub-
                                                                     16                         paragraph (A) shall be made in writing to the
                                                                     17                         Secretary not more than 5 days after the
                                                                     18                         issuance of the order.
                                                                     19                                  ‘‘(C) REQUIREMENTS FOR REVIEW.—
                                                                     20                                          ‘‘(i) IN         GENERAL.—A                    review under
                                                                     21                                  this paragraph shall—
                                                                     22                                                   ‘‘(I) commence not later than 24
                                                                     23                                          hours after a request is made under
                                                                     24                                          subparagraph (B); and



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                                                                       1                                                  ‘‘(II) conclude not later than 24
                                                                       2                                         hours after such commencement.
                                                                       3                                 ‘‘(D) DETERMINATION.—Not later than 72
                                                                       4                        hours after a review concludes under clause
                                                                       5                        (i)(II), the Secretary shall determine whether to
                                                                       6                        affirm, modify, or revoke the contested order.
                                                                       7                        ‘‘(4) HEARING AND APPEALS.—Any person ag-
                                                                       8               grieved by a determination of the Secretary under
                                                                       9               paragraph (3)(C)(ii) may—
                                                                     10                                  ‘‘(A) request a hearing to appeal such de-
                                                                     11                         termination to an administrative law judge; and
                                                                     12                                  ‘‘(B) appeal an order of an administrative
                                                                     13                         law judge under subparagraph (A) to a court of
                                                                     14                         competent jurisdiction.
                                                                     15                         ‘‘(5) TEMPORARY OR PERMANENT INJUNCTIVE
                                                                     16                RELIEF.—The Secretary may petition any court of

                                                                     17                competent jurisdiction for temporary or permanent
                                                                     18                injunctive relief against any contractor or subcon-
                                                                     19                tractor that violates an order issued under para-
                                                                     20                graph (1). A court shall issue such temporary or
                                                                     21                permanent injunctive relief if the Secretary has dem-
                                                                     22                onstrated it is just and proper.
                                                                     23                         ‘‘(6) COMPENSATION FOR LOST WORK.—
                                                                     24                                  ‘‘(A) IN GENERAL.—Subject to subpara-



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                                                                     25                         graph (B), a contractor or subcontractor with


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                                                                       1                        respect to whom an order is issued under para-
                                                                       2                        graph (1) shall pay each laborer or mechanic
                                                                       3                        described in subparagraph (C) the compensa-
                                                                       4                        tion that would be owed to such laborer or me-
                                                                       5                        chanic if the order was not issued.
                                                                       6                                 ‘‘(B)        LIMITATION.—Compensation                          paid
                                                                       7                        under subparagraph (A) shall be for each day,
                                                                       8                        not to exceed 10 days, for which the laborer or
                                                                       9                        mechanic would be paid if the order described
                                                                     10                         in such subparagraph were not in effect.
                                                                     11                                  ‘‘(C) APPLICABILITY.—Subparagraph (A)
                                                                     12                         applies to a laborer or mechanic who—
                                                                     13                                          ‘‘(i) is an employee of the contractor
                                                                     14                                  or subcontractor against whom an order is
                                                                     15                                  issued under paragraph (1);
                                                                     16                                          ‘‘(ii) is performing labor under the
                                                                     17                                  contract or subcontract, respectively, that
                                                                     18                                  is subject to the order; and
                                                                     19                                          ‘‘(iii) loses compensation due to the
                                                                     20                                  work of such laborer or mechanic ceasing
                                                                     21                                  as a result of such order.
                                                                     22                         ‘‘(7) SUCCESSFULLY DISPROVING OCCURRENCE
                                                                     23                OF MISCLASSIFICATION.—

                                                                     24                                  ‘‘(A) IN GENERAL.—In any case where a



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                                                                     25                         contractor or subcontractor with respect to


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                                                                                                                           154
                                                                       1                        whom an order was issued under paragraph (1)
                                                                       2                        successfully proves through a review under
                                                                       3                        paragraph (3) or subsequent hearing or appeals
                                                                       4                        proceeding under paragraph (4) that the 2 or
                                                                       5                        more laborers or mechanics who were the sub-
                                                                       6                        ject of the order were not misclassified in viola-
                                                                       7                        tion of subsection (a)—
                                                                       8                                         ‘‘(i) the order issued under paragraph
                                                                       9                                 (1), and any order issued against the con-
                                                                     10                                  tractor or subcontractor under subsection
                                                                     11                                  (d)(1) with respect to such 2 or more la-
                                                                     12                                  borers or mechanics, shall cease to be in
                                                                     13                                  effect;
                                                                     14                                          ‘‘(ii) the contractor or subcontractor
                                                                     15                                  shall not be liable for any applicable back
                                                                     16                                  pay, damages, or civil penalties owed by
                                                                     17                                  the contractor or subcontractor under this
                                                                     18                                  subchapter                 with            respect             to   the
                                                                     19                                  misclassification of such 2 or more laborers
                                                                     20                                  or mechanics; and
                                                                     21                                          ‘‘(iii) the Secretary of Labor, adminis-
                                                                     22                                  trative law judge, or the court shall award
                                                                     23                                  (and the Secretary of the Treasury shall,
                                                                     24                                  in accordance with subparagraph (B), pay)



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                                                                       1                                                  ‘‘(I) an amount equal to any de-
                                                                       2                                         monstrable lost net profits resulting
                                                                       3                                         from the order, as demonstrated by
                                                                       4                                         clear and convincing evidence; and
                                                                       5                                                  ‘‘(II) reasonable fees and ex-
                                                                       6                                         penses of attorneys in the same man-
                                                                       7                                         ner as such fees and expenses could
                                                                       8                                         be awarded under section 2412 of title
                                                                       9                                         28, United States Code, if the con-
                                                                     10                                          tractor or subcontractor was a pre-
                                                                     11                                          vailing party and the review, hearing,
                                                                     12                                          or appeals proceeding was a civil ac-
                                                                     13                                          tion brought by or against the United
                                                                     14                                          States.
                                                                     15                                  ‘‘(B) SOURCE OF FUNDS.—The Secretary
                                                                     16                         of the Treasury shall, upon notification by the
                                                                     17                         Secretary of Labor, administrative law judge, or
                                                                     18                         court, as applicable, pay any amounts, fees, or
                                                                     19                         expenses awarded under subparagraph (A)(iii)
                                                                     20                         from amounts available in the general fund of
                                                                     21                         the Treasury.’’.
                                                                     22                         (6) PENALTIES FOR VIOLATIONS OF NEW RE-
                                                                     23                QUIREMENTS.—Subchapter IV of chapter 31 of title

                                                                     24                40, United States Code, is amended by inserting



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                                                                       1               after section 3144a, as added by paragraph (3), the
                                                                       2               following:
                                                                       3 ‘‘§ 3144c. Penalties; expanded liability
                                                                       4               ‘‘(a) MISCLASSIFICATION; INCORPORATION TO FUR-
                                                                       5     THER VIOLATIONS; RETALIATION.—

                                                                       6                        ‘‘(1) IN GENERAL.—A contractor or subcon-
                                                                       7               tractor that violates subsection (a), (b), or (c) of sec-
                                                                       8               tion 3144a of this title shall be subject to a civil
                                                                       9               penalty of—
                                                                     10                                  ‘‘(A) subject to subparagraphs (B) and
                                                                     11                         (C), $10,000;
                                                                     12                                  ‘‘(B) if the violation is repeated or willful,
                                                                     13                         $30,000; or
                                                                     14                                  ‘‘(C) if the violation is widespread, 1 per-
                                                                     15                         cent of the net profits of the contractor or sub-
                                                                     16                         contractor for the year in which the contractor
                                                                     17                         or subcontractor had the highest net profits out
                                                                     18                         of all years in which the contractor or subcon-
                                                                     19                         tractor was in such violation.
                                                                     20                         ‘‘(2) REPEATED,                     OR       WILLFUL,             AND   WIDE-

                                                                     21                SPREAD VIOLATIONS.—If the violation of subsection

                                                                     22                (a), (b), or (c) of section 3144a of this title is re-
                                                                     23                peated or willful, as described in paragraph (1)(B),
                                                                     24                and is widespread, as described in paragraph (1)(C),



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                                                                       1               the higher amount of the amounts described in such
                                                                       2               paragraphs shall apply.
                                                                       3                        ‘‘(3) PAYMENT OF DAMAGES.—Any penalty as-
                                                                       4               sessed under paragraph (1) for a violation of sub-
                                                                       5               section (a), (b), or (c) of section 3144a of this title
                                                                       6               shall be paid from an account of the contractor or
                                                                       7               subcontractor in such violation for the violation and
                                                                       8               not paid, or reimbursed, by any insurance plan that
                                                                       9               would indemnify the contractor or subcontractor
                                                                     10                from violations of such subsection. If a contractor or
                                                                     11                subcontractor receives a payment from an insurance
                                                                     12                plan to indemnify the contractor or subcontractor
                                                                     13                from a violation of such subsection, the contractor or
                                                                     14                subcontractor shall transfer the payment to the Sec-
                                                                     15                retary, in addition to the amount to be paid from
                                                                     16                the account of the contractor or subcontractor for
                                                                     17                the penalty.
                                                                     18                ‘‘(b) MISCLASSIFICATION ENFORCEMENT THROUGH
                                                                     19 RECLASSIFICATION ORDERS.—
                                                                     20                         ‘‘(1) CIVIL PENALTIES.—A contractor or sub-
                                                                     21                contractor that violates a reclassification order
                                                                     22                issued under section 3144a(d)(1) shall be subject to
                                                                     23                a civil penalty of not less than $5,000 per day, with
                                                                     24                each day constituting a separate offense.



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                                                                       1                        ‘‘(2) ADDITIONAL DAMAGES.—In any case in
                                                                       2               which a contractor or subcontractor contests a re-
                                                                       3               classification order issued under paragraph (1) of
                                                                       4               section 3144a(d) in a review under paragraph (3) of
                                                                       5               such section, a hearing under paragraph (4)(A) of
                                                                       6               such section, and a subsequent judicial proceeding
                                                                       7               under paragraph (4)(B) of such section, and the
                                                                       8               court in such proceeding rules in favor of the Sec-
                                                                       9               retary—
                                                                     10                                  ‘‘(A) the court shall determine if, during
                                                                     11                         the period between the issuance of such order
                                                                     12                         and the conclusion of the proceeding, the con-
                                                                     13                         tractor or subcontractor violated such order by
                                                                     14                         not classifying the 1 or more laborer or me-
                                                                     15                         chanics as employees during that period; and
                                                                     16                                  ‘‘(B) if the court determines the contractor
                                                                     17                         or subcontractor so violated the order during
                                                                     18                         that period—
                                                                     19                                          ‘‘(i) the court shall determine the
                                                                     20                                  amount of net profits derived by the con-
                                                                     21                                  tractor or subcontractor from the labor of
                                                                     22                                  the laborers or mechanics during that pe-
                                                                     23                                  riod; and
                                                                     24                                          ‘‘(ii) the court shall assess damages in



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                                                                       1                                 which damages shall be awarded to such
                                                                       2                                 individuals by the court.’’.
                                                                       3                        (7) CONFORMING AMENDMENTS.—The table of
                                                                       4               sections for subchapter IV of chapter 31 of title 40,
                                                                       5               United States Code, is amended—
                                                                       6                                 (A) by inserting after the item relating to
                                                                       7                        section 3141 the following:
                                                                             ‘‘Sec. 3141a. Employee test.’’;

                                                                       8                        and
                                                                       9                                 (B) by inserting after the item relating to
                                                                     10                         section 3144 the following:
                                                                             ‘‘Sec. 3144a. Prohibitions against misclassification, incorporation to further vio-
                                                                                             lations, and retaliation; reclassification orders and stop work
                                                                                             orders.
                                                                             ‘‘Sec. 3144c. Penalties; expanded liability.’’.

                                                                     11                (g) WALSH-HEALEY PUBLIC CONTRACTS ACT.—
                                                                     12                         (1) STRENGTHENING EMPLOYEE TEST.—Chap-
                                                                     13                ter 65 of title 41, United States Code, is amended
                                                                     14                by inserting after section 6501 of such title the fol-
                                                                     15                lowing:
                                                                     16 ‘‘§ 6501a. Employee test
                                                                     17                ‘‘(a) IN GENERAL.—For purposes of this chapter and
                                                                     18 except as provided in subsection (c), an individual per-
                                                                     19 forming any labor, with respect to the manufacture or fur-
                                                                     20 nishing of materials, supplies, articles, or equipment,
                                                                     21 under a contract to which this chapter applies, shall be



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                                                                       1 an employee employed by the contractor of such contract
                                                                       2 and not an independent contractor, unless—
                                                                       3                        ‘‘(1) the individual is free from control and di-
                                                                       4               rection in connection with the performance of the
                                                                       5               labor, both under the contract for the performance
                                                                       6               of the labor and in fact;
                                                                       7                        ‘‘(2) the labor is performed outside the usual
                                                                       8               course of the business of such contractor; and
                                                                       9                        ‘‘(3) the individual is customarily engaged in an
                                                                     10                independently established trade, occupation, profes-
                                                                     11                sion, or business of the same nature as that involved
                                                                     12                in the labor performed.
                                                                     13                ‘‘(b) CLARIFICATIONS.—
                                                                     14                         ‘‘(1) RELATIONSHIP WITH COMMON LAW.—Sub-
                                                                     15                section (a) is not a codification of the common law
                                                                     16                and shall not be interpreted to reflect, or to be lim-
                                                                     17                ited or restricted by, common law interpretations re-
                                                                     18                garding when an individual is an employee of an-
                                                                     19                other person. Subsection (a) shall be considered
                                                                     20                complete as written, and any judicial or agency in-
                                                                     21                terpretation of such subsection shall be limited to
                                                                     22                the explicit requirements of such subsection.
                                                                     23                         ‘‘(2) IMPACT OF WRITTEN OR OTHER AGREE-
                                                                     24                MENTS.—The                    requirements of subsection (a) shall



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                                                                       1               ten or otherwise, that purports to demonstrate an
                                                                       2               individual’s acknowledgment of or acquiescence to
                                                                       3               the absence of an employer-employee relationship
                                                                       4               with a particular employer.
                                                                       5               ‘‘(c) NON-COMPETE AGREEMENTS.—
                                                                       6                        ‘‘(1) IN GENERAL.—Notwithstanding any con-
                                                                       7               trary provisions in this chapter, in any instance in
                                                                       8               which there is a non-compete agreement between a
                                                                       9               person and an individual who performs labor for
                                                                     10                such person, the presence of the non-compete agree-
                                                                     11                ment, without regard to the legality or enforceability
                                                                     12                of the non-compete agreement, shall be evidence of
                                                                     13                control for purposes of subsection (a)(1), but shall
                                                                     14                not by itself establish an employment relationship
                                                                     15                between such person and the individual.
                                                                     16                         ‘‘(2) DEFINITION                    OF       NON-COMPETE                AGREE-

                                                                     17                MENT.—In              this subsection, the term ‘non-compete
                                                                     18                agreement’ means an agreement between a person
                                                                     19                and an individual who performs labor for such per-
                                                                     20                son that restricts the individual from performing, ei-
                                                                     21                ther during or after the individual performs labor
                                                                     22                for such person—
                                                                     23                                  ‘‘(A) any labor for another person;
                                                                     24                                  ‘‘(B) any labor for a specified period of



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                                                                       1                                 ‘‘(C) any labor in a specified geographical
                                                                       2                        area; or
                                                                       3                                 ‘‘(D) any labor for another person that is
                                                                       4                        similar to the labor such individual performed
                                                                       5                        for the person that is a party to such agree-
                                                                       6                        ment.’’.
                                                                       7                        (2) PRESUMPTION                       OF EMPLOYEE STATUS.—

                                                                       8               Section 6501a of title 41, United States Code, as
                                                                       9               added by paragraph (1), is amended by adding at
                                                                     10                the end the following:
                                                                     11                ‘‘(d) PRESUMPTION OF EMPLOYEE STATUS.—For
                                                                     12 purposes of this chapter, an individual performing any
                                                                     13 labor, with respect to the manufacture or furnishing of
                                                                     14 materials, supplies, articles, or equipment, under a con-
                                                                     15 tract to which this chapter applies, shall be an employee
                                                                     16 employed by the contractor of such contract unless the
                                                                     17 party seeking to assert otherwise establishes by clear and
                                                                     18 convincing evidence that the individual is not such an em-
                                                                     19 ployee in accordance with this section.’’.
                                                                     20                         (3) MISCLASSIFICATION AS A STANDALONE VIO-
                                                                     21                LATION.—

                                                                     22                                  (A) IN GENERAL.—Section 6502 of title
                                                                     23                         41, United States Code, is amended by adding
                                                                     24                         at the end the following:



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                                                                       1                        ‘‘(5) MISCLASSIFICATION.—The contractor shall
                                                                       2               not misclassify an individual performing any labor,
                                                                       3               with respect to the manufacture or furnishing of ma-
                                                                       4               terials, supplies, articles, or equipment under the
                                                                       5               contract, who is an employee of the contractor as
                                                                       6               not such an employee for purposes of this chapter.’’.
                                                                       7                                 (B) INCORPORATION TO FURTHER VIOLA-
                                                                       8                        TIONS.—Section 6502 of title 41, United States

                                                                       9                        Code, as amended by subparagraph (A), is fur-
                                                                     10                         ther amended by adding at the end the fol-
                                                                     11                         lowing:
                                                                     12                         ‘‘(6) INCORPORATION                           TO       FURTHER          VIOLA-

                                                                     13                TIONS.—The contractor shall not, for the purpose,

                                                                     14                in whole or in part, of facilitating, or evading detec-
                                                                     15                tion of, a violation of this chapter, including a viola-
                                                                     16                tion of paragraph (5)—
                                                                     17                                  ‘‘(A) incorporate or form, or assist in the
                                                                     18                         incorporation or formation of, a corporation,
                                                                     19                         partnership, limited liability corporation, or
                                                                     20                         other entity; or
                                                                     21                                  ‘‘(B) pay or collect a fee for use of a for-
                                                                     22                         eign or domestic corporation, partnership, lim-
                                                                     23                         ited liability corporation, or other entity.’’.
                                                                     24                         (4) PROTECTION                       FROM            RETALIATION          FOR




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                                                                       1               FUL DISCHARGE OR DISCRIMINATION.—Section 6502

                                                                       2               of title 41, United States Code, as amended by para-
                                                                       3               graph (4), is further amended by adding at the end
                                                                       4               the following:
                                                                       5                        ‘‘(7) RETALIATION.—
                                                                       6                                 ‘‘(A) IN GENERAL.—The contractor shall
                                                                       7                        not discharge or in any other manner discrimi-
                                                                       8                        nate against an individual employed by the con-
                                                                       9                        tractor in the manufacture or furnishing of ma-
                                                                     10                         terials, supplies, articles, or equipment under
                                                                     11                         the contract, because—
                                                                     12                                          ‘‘(i) such individual has filed any com-
                                                                     13                                  plaint or instituted or caused to be insti-
                                                                     14                                  tuted any proceeding under or related to
                                                                     15                                  this chapter, or has testified or is about to
                                                                     16                                  testify in any such proceeding, or has
                                                                     17                                  served or is about to serve on an industry
                                                                     18                                  committee; or
                                                                     19                                          ‘‘(ii) such individual—
                                                                     20                                                   ‘‘(I) is required, pursuant to the
                                                                     21                                          enactment of the Worker Flexibility
                                                                     22                                          and Small Business Protection Act of
                                                                     23                                          2020, to be classified as an employee
                                                                     24                                          of the contractor for purposes of this



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                                                                       1                                         chapter and not an independent con-
                                                                       2                                         tractor; and
                                                                       3                                                  ‘‘(II) was classified by the con-
                                                                       4                                         tractor as an independent contractor
                                                                       5                                         prior to the date of enactment of the
                                                                       6                                         Worker Flexibility and Small Business
                                                                       7                                         Protection Act of 2020.
                                                                       8                                 ‘‘(B) RULES REGARDING UNLAWFUL DIS-
                                                                       9                        CHARGE OR DISCRIMINATION.—

                                                                     10                                          ‘‘(i)          PRESUMPTION                     OF      RETALIA-

                                                                     11                                  TION.—Any action taken against an indi-

                                                                     12                                  vidual, employed by the contractor or sub-
                                                                     13                                  contractor in the manufacture or fur-
                                                                     14                                  nishing of materials, supplies, articles, or
                                                                     15                                  equipment under the contract, within 90
                                                                     16                                  days of the individual taking any action
                                                                     17                                  described in subparagraph (A)(i), including
                                                                     18                                  taking any such action with respect to ex-
                                                                     19                                  ercising the right of the individual pursu-
                                                                     20                                  ant         to     paragraph                (5)         to     not   be
                                                                     21                                  misclassified, shall establish a rebuttable
                                                                     22                                  presumption that the action is discrimina-
                                                                     23                                  tion against the individual in violation of
                                                                     24                                  subparagraph (A).



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                                                                       1                                         ‘‘(ii) MOTIVATING FACTOR.—Unlawful
                                                                       2                                 discharge or other discrimination against
                                                                       3                                 an employee under subparagraph (A) is es-
                                                                       4                                 tablished when the complaining party dem-
                                                                       5                                 onstrates that one of the actions or the
                                                                       6                                 classification described in such subpara-
                                                                       7                                 graph was a motivating factor for such dis-
                                                                       8                                 charge or other discrimination, even if
                                                                       9                                 such discharge or other discrimination was
                                                                     10                                  also motivated by other factors.’’.
                                                                     11                         (5)           MISCLASSIFICATION                                 ENFORCEMENT

                                                                     12                THROUGH              RECLASSIFICATION                      ORDERS            AND   STOP

                                                                     13                WORK ORDERS.—Chapter                                 65 of title 41, United
                                                                     14                States Code, is amended by inserting after section
                                                                     15                6506 the following:
                                                                     16 ‘‘§ 6506a. Misclassification enforcement through re-
                                                                     17                             classification orders and stop work or-

                                                                     18                             ders

                                                                     19                ‘‘(a) RECLASSIFICATION ORDERS.—
                                                                     20                         ‘‘(1) IN             GENERAL.—If                the Secretary deter-
                                                                     21                mines, after an investigation under section 6506(e),
                                                                     22                that a contractor of a contract to which this chapter
                                                                     23                applies has misclassified 1 or more individuals who
                                                                     24                are employees of the contractor performing any



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                                                                       1               of materials, supplies, articles, or equipment, under
                                                                       2               the contract, as not employees of the contractor, in
                                                                       3               violation of section 6502(5)—
                                                                       4                                 ‘‘(A) the Secretary shall issue, not later
                                                                       5                        than 24 hours after making such determination,
                                                                       6                        an order against the contractor requiring the
                                                                       7                        contractor to immediately classify the 1 or more
                                                                       8                        individuals as employees of the contractor; and
                                                                       9                                 ‘‘(B) the contractor shall immediately com-
                                                                     10                         ply with the order issued under subparagraph
                                                                     11                         (A) or shall otherwise be in violation of section
                                                                     12                         6502(5).
                                                                     13                         ‘‘(2) ORDERS.—An order issued under para-
                                                                     14                graph (1) shall—
                                                                     15                                  ‘‘(A) be effective at the time at which the
                                                                     16                         order is served upon the contractor, which may
                                                                     17                         be accomplished by the posting of a copy of the
                                                                     18                         order in a conspicuous location at the place of
                                                                     19                         business of the contractor; and
                                                                     20                                  ‘‘(B) remain in effect during any review
                                                                     21                         conducted under paragraph (3) and during any
                                                                     22                         hearing and appeal of such order under para-
                                                                     23                         graph (4).
                                                                     24                         ‘‘(3) REVIEW FOR RECONSIDERATION.—



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                                                                       1                                 ‘‘(A) IN GENERAL.—A contractor against
                                                                       2                        whom an order is issued under paragraph (1)
                                                                       3                        may request a review by the Secretary to con-
                                                                       4                        test the order.
                                                                       5                                 ‘‘(B) REQUESTS.—A request under sub-
                                                                       6                        paragraph (A) shall be made in writing to the
                                                                       7                        Secretary not more than 5 days after the
                                                                       8                        issuance of the order.
                                                                       9                                 ‘‘(C) REQUIREMENTS FOR REVIEW.—
                                                                     10                                          ‘‘(i) IN         GENERAL.—A                    review under
                                                                     11                                  this paragraph shall—
                                                                     12                                                   ‘‘(I) commence not later than 24
                                                                     13                                          hours after a request is made under
                                                                     14                                          subparagraph (B); and
                                                                     15                                                   ‘‘(II) conclude not later than 24
                                                                     16                                          hours after such commencement.
                                                                     17                                          ‘‘(ii)         DETERMINATION.—Not                      later
                                                                     18                                  than 72 hours after a review concludes
                                                                     19                                  under clause (i)(II), the Secretary shall de-
                                                                     20                                  termine whether to affirm, modify, or re-
                                                                     21                                  voke the contested order.
                                                                     22                         ‘‘(4) HEARINGS AND APPEALS.—Any person ag-
                                                                     23                grieved by a determination of the Secretary under
                                                                     24                paragraph (3)(C)(ii) may—



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                                                                       1                                 ‘‘(A) request a hearing to appeal such de-
                                                                       2                        termination to an administrative law judge; and
                                                                       3                                 ‘‘(B) appeal an order of an administrative
                                                                       4                        law judge under subparagraph (A) to a court of
                                                                       5                        jurisdiction as described in section 6507(d).
                                                                       6                        ‘‘(5) TEMPORARY OR PERMANENT INJUNCTIVE
                                                                       7               RELIEF.—The Secretary may petition a court of ju-

                                                                       8               risdiction as described in section 6507(d) for tem-
                                                                       9               porary or permanent injunctive relief against any
                                                                     10                contractor that violates an order issued under para-
                                                                     11                graph (1). A court shall issue such temporary or
                                                                     12                permanent injunctive relief if the Secretary has dem-
                                                                     13                onstrated it is just and proper.
                                                                     14                         ‘‘(6) SUCCESSFULLY DISPROVING OCCURRENCE
                                                                     15                OF MISCLASSIFICATION.—

                                                                     16                                  ‘‘(A) IN GENERAL.—If contractor with re-
                                                                     17                         spect to whom an order was issued under para-
                                                                     18                         graph (1) successfully proves through a review
                                                                     19                         under paragraph (3), or a subsequent hearing
                                                                     20                         or appeals proceeding under paragraph (4),
                                                                     21                         that the 1 or more individuals who were the
                                                                     22                         subject of the order were not misclassified in
                                                                     23                         violation of section 6502(5)—
                                                                     24                                          ‘‘(i) the order issued under paragraph



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                                                                       1                                         ‘‘(ii) the contractor shall not be liable
                                                                       2                                 for any applicable back pay, damages, or
                                                                       3                                 civil penalties owed by the contractor
                                                                       4                                 under this chapter with respect to the
                                                                       5                                 misclassification of such 1 or more individ-
                                                                       6                                 uals; and
                                                                       7                                         ‘‘(iii) the Secretary of Labor, adminis-
                                                                       8                                 trative law judge, or the court, as applica-
                                                                       9                                 ble, shall award (and the Secretary of the
                                                                     10                                  Treasury shall, in accordance with sub-
                                                                     11                                  paragraph (B), pay) to the contractor rea-
                                                                     12                                  sonable fees and expenses of attorneys in
                                                                     13                                  the same manner as such fees and ex-
                                                                     14                                  penses could be awarded under section
                                                                     15                                  2412 of title 28, United States Code, if the
                                                                     16                                  contractor was a prevailing party and the
                                                                     17                                  review, hearing, or appeals proceeding was
                                                                     18                                  a civil action brought by or against the
                                                                     19                                  United States.
                                                                     20                                  ‘‘(B) SOURCE OF FUNDS.—The Secretary
                                                                     21                         of the Treasury shall, upon notification by the
                                                                     22                         Secretary of Labor, administrative law judge, or
                                                                     23                         court, as applicable, pay any fees or expenses
                                                                     24                         awarded under subparagraph (A)(iii) from



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                                                                     25                         amounts in the general fund of the Treasury.


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                                                                       1               ‘‘(b) STOP WORK ORDERS.—
                                                                       2                        ‘‘(1) IN GENERAL.—In any case where a con-
                                                                       3               tractor does not comply with a reclassification order
                                                                       4               issued by the Secretary under subsection (a)(1), with
                                                                       5               respect           to     2       or      more           individuals              who   are
                                                                       6               misclassified in violation of section 6502(5), within
                                                                       7               30 days of being served with the order, the Sec-
                                                                       8               retary shall issue—
                                                                       9                                 ‘‘(A) subject to subparagraph (B), an
                                                                     10                         order against the contractor requiring the ces-
                                                                     11                         sation of all business operations of such con-
                                                                     12                         tractor at the location of the violation; or
                                                                     13                                  ‘‘(B) if an order described in subparagraph
                                                                     14                         (A) has been previously issued against the con-
                                                                     15                         tractor by any Federal, State, or local agency
                                                                     16                         for misclassifying an employee performing any
                                                                     17                         labor, with respect to the manufacture or fur-
                                                                     18                         nishing of materials, supplies, articles, or equip-
                                                                     19                         ment under the contract, as not such an em-
                                                                     20                         ployee in violation of section 6502(5), or an
                                                                     21                         equivalent State or local law as determined by
                                                                     22                         the Secretary, an order against the contractor
                                                                     23                         requiring the cessation of all business oper-
                                                                     24                         ations of such contractor at all business loca-



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                                                                     25                         tions of the contractor, including locations other


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                                                                                                                           172
                                                                       1                        than the location where the misclassification oc-
                                                                       2                        curred.
                                                                       3                        ‘‘(2) ORDERS.—
                                                                       4                                 ‘‘(A) APPLICABILITY.—An order issued
                                                                       5                        under paragraph (1) shall—
                                                                       6                                         ‘‘(i) be effective at the time at which
                                                                       7                                 the order is served upon the contractor,
                                                                       8                                 which may be accomplished by the posting
                                                                       9                                 of a copy of the order in a conspicuous lo-
                                                                     10                                  cation at the place of business of the con-
                                                                     11                                  tractor; and
                                                                     12                                          ‘‘(ii) remain in effect—
                                                                     13                                                   ‘‘(I) during any review conducted
                                                                     14                                          under paragraph (3) with respect to
                                                                     15                                          such order and during any hearing
                                                                     16                                          and appeal of such order under para-
                                                                     17                                          graph (4); and
                                                                     18                                                   ‘‘(II) until the Secretary issues a
                                                                     19                                          release order under subparagraph (B).
                                                                     20                                  ‘‘(B) RELEASE ORDERS.—
                                                                     21                                          ‘‘(i) IN GENERAL.—An order issued
                                                                     22                                  under paragraph (1) (that is not revoked
                                                                     23                                  by the Secretary or held unlawful or set
                                                                     24                                  aside by an administrative law judge or a



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                                                                     25                                  court) shall remain in effect until the Sec-


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                                                                       1                                 retary issues another order releasing the
                                                                       2                                 order issued under such subsection upon a
                                                                       3                                 finding by the Secretary that the con-
                                                                       4                                 tractor—
                                                                       5                                                  ‘‘(I) has corrected the violation of
                                                                       6                                         section 6502(5) with respect to the 2
                                                                       7                                         or       more              individuals            who   were
                                                                       8                                         misclassified resulting in the order;
                                                                       9                                         and
                                                                     10                                                   ‘‘(II) has agreed to a payment
                                                                     11                                          schedule for all applicable back pay,
                                                                     12                                          damages, and civil penalties owed by
                                                                     13                                          the contractor under this chapter.
                                                                     14                                          ‘‘(ii) REINSTATEMENT.—If, at any
                                                                     15                                  time after the Secretary issues a release
                                                                     16                                  order under clause (i), the contractor fails
                                                                     17                                  to comply with the terms of the payment
                                                                     18                                  schedule described in clause (i)(II), the
                                                                     19                                  Secretary shall reinstate the order issued
                                                                     20                                  under paragraph (1) until the contractor is
                                                                     21                                  in compliance with such terms.
                                                                     22                         ‘‘(3) REVIEW FOR RECONSIDERATION.—
                                                                     23                                  ‘‘(A) IN GENERAL.—A contractor against
                                                                     24                         whom an order is issued under paragraph (1)



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                                                                                                                           174
                                                                       1                        may request a review by the Secretary to con-
                                                                       2                        test the order.
                                                                       3                                 ‘‘(B) REQUESTS.—A request under sub-
                                                                       4                        paragraph (A) shall be made in writing to the
                                                                       5                        Secretary not more than 5 days after the
                                                                       6                        issuance of the order.
                                                                       7                                 ‘‘(C) REQUIREMENTS FOR REVIEW.—
                                                                       8                                         ‘‘(i) IN         GENERAL.—A                    review under
                                                                       9                                 this paragraph shall—
                                                                     10                                                   ‘‘(I) commence not later than 24
                                                                     11                                          hours after a request is made under
                                                                     12                                          subparagraph (B); and
                                                                     13                                                   ‘‘(II) conclude not later than 24
                                                                     14                                          hours after such commencement.
                                                                     15                                          ‘‘(ii)         DETERMINATION.—Not                      later
                                                                     16                                  than 72 hours after a review concludes
                                                                     17                                  under clause (i)(II), the Secretary shall de-
                                                                     18                                  termine whether to affirm, modify, or re-
                                                                     19                                  voke the contested order.
                                                                     20                         ‘‘(4) HEARINGS AND APPEALS.—Any person ag-
                                                                     21                grieved by a determination of the Secretary under
                                                                     22                paragraph (3)(C)(ii) may—
                                                                     23                                  ‘‘(A) request a hearing to appeal such de-
                                                                     24                         termination to an administrative law judge; and



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                                                                       1                                 ‘‘(B) appeal an order of an administrative
                                                                       2                        law judge under subparagraph (A) to a court of
                                                                       3                        jurisdiction as described in section 6507(d).
                                                                       4                        ‘‘(5) TEMPORARY OR PERMANENT INJUNCTIVE
                                                                       5               RELIEF.—The Secretary may petition a court of ju-

                                                                       6               risdiction as described in section 6507(d) for tem-
                                                                       7               porary or permanent injunctive relief against any
                                                                       8               contractor that violates an order issued under para-
                                                                       9               graph (1). A court shall issue such temporary or
                                                                     10                permanent injunctive relief if the Secretary has dem-
                                                                     11                onstrated it is just and proper.
                                                                     12                         ‘‘(6) COMPENSATION FOR LOST WORK.—
                                                                     13                                  ‘‘(A) IN GENERAL.—Subject to subpara-
                                                                     14                         graph (B), a contractor with respect to whom
                                                                     15                         an order is issued under paragraph (1) shall
                                                                     16                         pay each employee described in subparagraph
                                                                     17                         (C) the compensation that would be owed to
                                                                     18                         such employee if the order was not issued.
                                                                     19                                  ‘‘(B)        LIMITATION.—Compensation                          paid
                                                                     20                         under subparagraph (A) shall be for each day,
                                                                     21                         not to exceed 10 days, for which the employee
                                                                     22                         would be paid if the order described in such
                                                                     23                         paragraph were not in effect.




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                                                                       1                                 ‘‘(C) APPLICABLE EMPLOYEES.—An em-
                                                                       2                        ployee described in this subparagraph is an in-
                                                                       3                        dividual who—
                                                                       4                                         ‘‘(i) is an employee of a contractor
                                                                       5                                 against whom an order is issued under
                                                                       6                                 paragraph (1);
                                                                       7                                         ‘‘(ii) performs labor with respect to
                                                                       8                                 the manufacture or furnishing of mate-
                                                                       9                                 rials, supplies, articles, or equipment under
                                                                     10                                  the contract that is subject to the order;
                                                                     11                                  and
                                                                     12                                          ‘‘(iii) loses compensation due to the
                                                                     13                                  work of such employee ceasing as a result
                                                                     14                                  of such order.
                                                                     15                         ‘‘(7) SUCCESSFULLY DISPROVING OCCURRENCE
                                                                     16                OF MISCLASSIFICATION.—

                                                                     17                                  ‘‘(A) IN GENERAL.—In any case where a
                                                                     18                         contractor with respect to whom an order was
                                                                     19                         issued under paragraph (1) successfully proves
                                                                     20                         through a review under paragraph (3) or a sub-
                                                                     21                         sequent hearing or appeals proceeding under
                                                                     22                         paragraph (4) that the 2 or more individuals
                                                                     23                         who were the subject of the order were not
                                                                     24                         misclassified in violation of section 6502(5)—



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                                                                       1                                         ‘‘(i) the order issued under paragraph
                                                                       2                                 (1), and any order issued against the con-
                                                                       3                                 tractor under subsection (a)(1) with re-
                                                                       4                                 spect to such 2 or more individuals, shall
                                                                       5                                 cease to be in effect;
                                                                       6                                         ‘‘(ii) the contractor shall not be liable
                                                                       7                                 for any applicable back pay, damages, or
                                                                       8                                 civil penalties owed by the contractor
                                                                       9                                 under this chapter with respect to the
                                                                     10                                  misclassification of such 2 or more individ-
                                                                     11                                  uals; and
                                                                     12                                          ‘‘(iii) the Secretary of Labor, adminis-
                                                                     13                                  trative law judge, or court, as applicable,
                                                                     14                                  shall award (and the Secretary of the
                                                                     15                                  Treasury shall, in accordance with sub-
                                                                     16                                  paragraph (B), pay) to the contractor—
                                                                     17                                                   ‘‘(I) an amount equal to any de-
                                                                     18                                          monstrable lost net profits resulting
                                                                     19                                          from the order, as demonstrated by
                                                                     20                                          clear and convincing evidence; and
                                                                     21                                                   ‘‘(II) reasonable fees and ex-
                                                                     22                                          penses of attorneys in the same man-
                                                                     23                                          ner as such fees and expenses could
                                                                     24                                          be awarded under section 2412 of title



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                                                                     25                                          28, United States Code, if the con-


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                                                                       1                                         tractor was a prevailing party and the
                                                                       2                                         review, hearing, or appeals proceeding
                                                                       3                                         was a civil action brought by or
                                                                       4                                         against the United States.
                                                                       5                                 ‘‘(B) SOURCE OF FUNDS.—The Secretary
                                                                       6                        of the Treasury shall, upon notification by the
                                                                       7                        Secretary of Labor, administrative law judge, or
                                                                       8                        court, as applicable, pay any amounts, fees, or
                                                                       9                        expenses awarded under subparagraph (A)(iii)
                                                                     10                         from amounts available in the general fund of
                                                                     11                         the Treasury.’’.
                                                                     12                         (6) PENALTIES FOR VIOLATIONS OF NEW RE-
                                                                     13                QUIREMENTS.—Chapter                             65 of title 41, United
                                                                     14                States Code, as amended by paragraph (5), is fur-
                                                                     15                ther amended by inserting after section 6506a the
                                                                     16                following:
                                                                     17 ‘‘§ 6506b. Penalties; expanded liability
                                                                     18                ‘‘(a) MISCLASSIFICATION AND INCORPORATION TO
                                                                     19 FURTHER VIOLATIONS.—
                                                                     20                         ‘‘(1) IN GENERAL.—A contractor that violates
                                                                     21                paragraph (5), (6), or (7) of section 6502 of this
                                                                     22                title shall be subject to a civil penalty of—
                                                                     23                                  ‘‘(A) subject to subparagraphs (B) and
                                                                     24                         (C), $10,000;



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                                                                       1                                 ‘‘(B) if the violation is repeated or willful,
                                                                       2                        $30,000; or
                                                                       3                                 ‘‘(C) if the violation is widespread, 1 per-
                                                                       4                        cent of the net profits of the contractor for the
                                                                       5                        year in which the contractor had the highest
                                                                       6                        net profits out of all years in which the con-
                                                                       7                        tractor was in such violation.
                                                                       8                        ‘‘(2) REPEATED,                     OR       WILLFUL,             AND   WIDE-

                                                                       9               SPREAD VIOLATIONS.—If the violation of paragraph

                                                                     10                (5), (6), or (7) of section 6502 of this title is re-
                                                                     11                peated or willful, as described in paragraph (1)(B),
                                                                     12                and is widespread, as described in paragraph (1)(C),
                                                                     13                the higher amount of the amounts described in such
                                                                     14                paragraphs shall apply.
                                                                     15                         ‘‘(3) PAYMENT OF DAMAGES.—Any penalty as-
                                                                     16                sessed under paragraph (1) for a violation of para-
                                                                     17                graph (5), (6), or (7) of section 6502 of this title
                                                                     18                shall be paid from an account of the contractor in
                                                                     19                such violation and not paid, or reimbursed, by any
                                                                     20                insurance plan that would indemnify the contractor
                                                                     21                from violations of such paragraph (5), (6), or (7). If
                                                                     22                a contractor receives a payment from an insurance
                                                                     23                plan to indemnify the contractor from a violation of
                                                                     24                such paragraph (5), (6), or (7), the contractor shall



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                                                                     25                transfer the payment to the Secretary, in addition to


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                                                                                                                           180
                                                                       1               the amount to be paid from the account of the con-
                                                                       2               tractor for the penalty.
                                                                       3               ‘‘(b) RECLASSIFICATION ORDERS.—
                                                                       4                        ‘‘(1) CIVIL PENALTIES.—A contractor that vio-
                                                                       5               lates a reclassification order issued under section
                                                                       6               6506a(a)(1) shall be subject to a civil penalty in an
                                                                       7               amount not less than $5,000 per day, with each day
                                                                       8               constituting a separate offense.
                                                                       9                        ‘‘(2) ADDITIONAL DAMAGES.—In any case in
                                                                     10                which a contractor contests a reclassification order
                                                                     11                issued under paragraph (1) of section 6506a(a) in a
                                                                     12                review under paragraph (3) of such section, a hear-
                                                                     13                ing under paragraph (4)(A) of such section, and a
                                                                     14                subsequent judicial proceeding under paragraph
                                                                     15                (4)(B) of such section, and the court in such pro-
                                                                     16                ceeding rules in favor of the Secretary—
                                                                     17                                  ‘‘(A) the court shall determine if, during
                                                                     18                         the period between the issuance of such order
                                                                     19                         and the conclusion of the proceeding, the con-
                                                                     20                         tractor violated such order by not classifying
                                                                     21                         the 1 or more individuals as employees during
                                                                     22                         that period; and
                                                                     23                                  ‘‘(B) if the court determines the contractor
                                                                     24                         so violated the order during that period—



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                                                                       1                                         ‘‘(i) the court shall determine the
                                                                       2                                 amount of net profits derived by the con-
                                                                       3                                 tractor from the individuals’ labor during
                                                                       4                                 that period; and
                                                                       5                                         ‘‘(ii) the court shall assess damages in
                                                                       6                                 the amount determined under clause (i),
                                                                       7                                 which damages shall be awarded to such
                                                                       8                                 individuals by the court.’’.
                                                                       9                        (7) CONFORMING AMENDMENTS.—The table of
                                                                     10                sections for chapter 65 of title 41, United States
                                                                     11                Code, is amended—
                                                                     12                                  (A) by inserting after the item relating to
                                                                     13                         section 6501 the following:
                                                                             ‘‘Sec. 6501a. Employee test.’’;

                                                                     14                         and
                                                                     15                                  (B) by inserting after the item relating to
                                                                     16                         section 6506 the following:
                                                                             ‘‘Sec. 6506a. Misclassification enforcement through reclassification orders and
                                                                                             stop work orders.
                                                                             ‘‘Sec. 6506b. Penalties; expanded liability.’’.

                                                                     17                (h) FAMILY AND MEDICAL LEAVE ACT OF 1993.—
                                                                     18                         (1) MISCLASSIFICATION AS A STANDALONE VIO-
                                                                     19                LATION.—

                                                                     20                                  (A) IN          GENERAL.—Section                         105 of the
                                                                     21                         Family and Medical Leave Act of 1993 (29




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                                                                     22                         U.S.C. 2615) is amended by adding at the end
                                                                     23                         the following:

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                                                                       1               ‘‘(c) MISCLASSIFICATION.—It shall be unlawful for
                                                                       2 any employer to misclassify an eligible employee of the em-
                                                                       3 ployer as not an employee of the employer for purposes
                                                                       4 of this title.’’.
                                                                       5                                 (B) INCORPORATION TO FURTHER VIOLA-
                                                                       6                        TIONS.—Section 105 of the Family and Medical

                                                                       7                        Leave Act of 1993 (29 U.S.C. 2615), as
                                                                       8                        amended by subparagraph (A), is further
                                                                       9                        amended by adding at the end the following:
                                                                     10                ‘‘(d) INCORPORATION TO FURTHER VIOLATIONS.—
                                                                     11 It shall be unlawful for any employer to, for the purpose,
                                                                     12 in whole or in part, of facilitating, or evading detection
                                                                     13 of, a violation of this title, including a violation of sub-
                                                                     14 section (c)—
                                                                     15                         ‘‘(1) incorporate or form, or assist in the incor-
                                                                     16                poration or formation of, a corporation, partnership,
                                                                     17                limited liability corporation, or other entity; or
                                                                     18                         ‘‘(2) pay or collect a fee for use of a foreign or
                                                                     19                domestic corporation, partnership, limited liability
                                                                     20                corporation, or other entity.’’.
                                                                     21                                  (C) PENALTIES.—Section 107(b) of the
                                                                     22                         Family and Medical Leave Act of 1993 (29
                                                                     23                         U.S.C. 2617(b)) is amended by adding at the
                                                                     24                         end the following:



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                                                                       1                        ‘‘(4) PENALTIES FOR MISCLASSIFICATION AND
                                                                       2               INCORPORATION TO FURTHER VIOLATIONS.—

                                                                       3                                 ‘‘(A) IN          GENERAL.—Any                         employer who
                                                                       4                        violates subsection (c) or (d) of section 105
                                                                       5                        shall be subject to a civil penalty of—
                                                                       6                                         ‘‘(i) subject to clauses (ii) and (iii),
                                                                       7                                 $10,000;
                                                                       8                                         ‘‘(ii) if the violation is repeated or
                                                                       9                                 willful, $30,000; or
                                                                     10                                          ‘‘(iii) if the violation is widespread, 1
                                                                     11                                  percent of the net profits of the employer
                                                                     12                                  for the year in which the employer had the
                                                                     13                                  highest net profits out of all years in which
                                                                     14                                  the employer was in such violation.
                                                                     15                                  ‘‘(B) REPEATED, OR WILLFUL, AND WIDE-
                                                                     16                         SPREAD VIOLATIONS.—If                              a violation of sub-
                                                                     17                         section (c) or (d) of section 105 is repeated or
                                                                     18                         willful, as described in subparagraph (A)(ii),
                                                                     19                         and is widespread, as described in subpara-
                                                                     20                         graph (A)(iii), the higher penalty of the pen-
                                                                     21                         alties described in such subparagraphs shall
                                                                     22                         apply.
                                                                     23                                  ‘‘(C) PAYMENT OF PENALTIES.—Any pen-
                                                                     24                         alty assessed under subparagraph (A) for a vio-



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                                                                     25                         lation of subsection (c) or (d) of section 105


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                                                                       1                        shall be paid from an account of the employer
                                                                       2                        in such violation and not paid, or reimbursed,
                                                                       3                        by any insurance plan that would indemnify the
                                                                       4                        employer from violations of such subsection (c)
                                                                       5                        or (d), respectively. If an employer receives a
                                                                       6                        payment from an insurance plan to indemnify
                                                                       7                        the employer from a violation of such sub-
                                                                       8                        section, the employer shall transfer the payment
                                                                       9                        to the Secretary, in addition to the amount to
                                                                     10                         be paid from the account of the employer for
                                                                     11                         the penalty.’’.
                                                                     12                         (2) PROTECTION                       FROM            RETALIATION        FOR

                                                                     13                BEING AN EMPLOYEE; PRESUMPTION OF RETALIA-

                                                                     14                TION.—Section                 105(b) of the Family and Medical
                                                                     15                Leave Act of 1993 (29 U.S.C. 2615(b)) is amend-
                                                                     16                ed—
                                                                     17                                  (A)         by     redesignating                 paragraphs    (1)
                                                                     18                         through (3) as subparagraphs (A) through (C),
                                                                     19                         respectively, and indenting appropriately;
                                                                     20                                  (B) by striking ‘‘It shall’’ and inserting the
                                                                     21                         following:
                                                                     22                         ‘‘(1) IN GENERAL.—It shall’’;
                                                                     23                                  (C) in subparagraph (B), as so redesig-
                                                                     24                         nated, by striking ‘‘; or’’ and inserting a semi-



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                                                                     25                         colon;


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                                                                       1                                 (D) in subparagraph (C), as so redesig-
                                                                       2                        nated, by striking the period at the end and in-
                                                                       3                        serting ‘‘; or’’; and
                                                                       4                                 (E) by adding at the end the following:
                                                                       5                                 ‘‘(D)(i) is required, pursuant to the enact-
                                                                       6                        ment of the Worker Flexibility and Small Busi-
                                                                       7                        ness Protection Act of 2020, to be classified as
                                                                       8                        an employee of the person for purposes of this
                                                                       9                        title and not an independent contractor; and
                                                                     10                                  ‘‘(ii) was classified by the person as an
                                                                     11                         independent contractor prior to the date of en-
                                                                     12                         actment of the Worker Flexibility and Small
                                                                     13                         Business Protection Act of 2020.
                                                                     14                         ‘‘(2)       RULES               REGARDING               UNLAWFUL        DIS-

                                                                     15                CHARGE OR DISCRIMINATION.—

                                                                     16                                  ‘‘(A) PRESUMPTION                        OF RETALIATION.—

                                                                     17                         Any action taken against an individual within
                                                                     18                         90 days of the individual taking any action de-
                                                                     19                         scribed in any of subparagraph (A), (B), or (C)
                                                                     20                         of paragraph (1), including taking any such ac-
                                                                     21                         tion with respect to exercising the right of an
                                                                     22                         employee pursuant to subsection (c) to not be
                                                                     23                         misclassified, shall establish a rebuttable pre-
                                                                     24                         sumption that the action is discrimination



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                                                                                                                           186
                                                                       1                        against the individual in violation of paragraph
                                                                       2                        (1).
                                                                       3                                 ‘‘(B) MOTIVATING FACTOR.—Unlawful dis-
                                                                       4                        charge or other discrimination against an em-
                                                                       5                        ployee under paragraph (1) is established when
                                                                       6                        the complaining party demonstrates that one of
                                                                       7                        the actions or the classification described in
                                                                       8                        such paragraph was a motivating factor for
                                                                       9                        such discharge or other discrimination, even if
                                                                     10                         such discharge or other discrimination was also
                                                                     11                         motivated by other factors.’’.
                                                                     12                         (3)       STATUTORY                  EMPLOYERS                  IN       HEAVILY

                                                                     13                MISCLASSIFYING                   INDUSTRIES.—Section                             101(4) of
                                                                     14                the Family and Medical Leave Act of 1993 (29
                                                                     15                U.S.C. 2611(4)) is amended by adding at the end
                                                                     16                the following:
                                                                     17                                  ‘‘(C) STATUTORY EMPLOYERS IN HEAVILY
                                                                     18                         MISCLASSIFYING INDUSTRIES.—The                                          term ‘em-
                                                                     19                         ployer’ shall include any person who—
                                                                     20                                          ‘‘(i) is described in subparagraph
                                                                     21                                  (A)(i); and
                                                                     22                                          ‘‘(ii) is described in section 3(d)(4) of
                                                                     23                                  the Fair Labor Standards Act of 1938 (29
                                                                     24                                  U.S.C. 203(d)(4)).’’.



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                                                                       1                        (4)           MISCLASSIFICATION                                 ENFORCEMENT

                                                                       2               THROUGH STOP WORK ORDERS.—

                                                                       3                                 (A) IN GENERAL.—Title I of the Family
                                                                       4                        and Medical Leave Act of 1993 (29 U.S.C.
                                                                       5                        2611 et seq.) is amended by inserting after sec-
                                                                       6                        tion 107 (29 U.S.C. 2617) the following:
                                                                       7     ‘‘SEC. 107A. MISCLASSIFICATION ENFORCEMENT THROUGH

                                                                       8                              RECLASSIFICATION                         ORDERS              AND   STOP

                                                                       9                              WORK ORDERS.

                                                                     10                ‘‘(a) RECLASSIFICATION ORDERS.—
                                                                     11                         ‘‘(1) IN             GENERAL.—If                the Secretary deter-
                                                                     12                mines, after an investigation under section 106, that
                                                                     13                an employer has misclassified 1 or more individuals
                                                                     14                who are eligible employees of the employer as not
                                                                     15                employees in violation of section 105(c)—
                                                                     16                                  ‘‘(A) the Secretary shall issue, not later
                                                                     17                         than 24 hours after making such determination,
                                                                     18                         an order against the employer requiring the em-
                                                                     19                         ployer to immediately classify the 1 or more in-
                                                                     20                         dividuals as eligible employees of the employer;
                                                                     21                         and
                                                                     22                                  ‘‘(B) the employer shall immediately com-
                                                                     23                         ply with the order issued under subparagraph
                                                                     24                         (A) or shall otherwise be in violation of section



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                                                                     25                         105(c).


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                                                                       1                        ‘‘(2) ORDERS.—An order issued under para-
                                                                       2               graph (1) shall—
                                                                       3                                 ‘‘(A) be effective at the time at which the
                                                                       4                        order is served upon the employer, which may
                                                                       5                        be accomplished by the posting of a copy of the
                                                                       6                        order in a conspicuous location at the place of
                                                                       7                        business of the employer; and
                                                                       8                                 ‘‘(B) remain in effect during any review
                                                                       9                        conducted under paragraph (3) with respect to
                                                                     10                         such order and during any hearing and appeal
                                                                     11                         of such order under paragraph (4).
                                                                     12                         ‘‘(3) REVIEW FOR RECONSIDERATION.—
                                                                     13                                  ‘‘(A) IN GENERAL.—An employer against
                                                                     14                         whom an order is issued under paragraph (1)
                                                                     15                         may request a review by the Secretary to con-
                                                                     16                         test the order.
                                                                     17                                  ‘‘(B) REQUESTS.—A request under sub-
                                                                     18                         paragraph (A) shall be made in writing to the
                                                                     19                         Secretary not more than 5 days after the
                                                                     20                         issuance of the order.
                                                                     21                                  ‘‘(C) REQUIREMENTS FOR REVIEW.—
                                                                     22                                          ‘‘(i) IN         GENERAL.—A                    review under
                                                                     23                                  this paragraph shall—




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                                                                                                                           189
                                                                       1                                                  ‘‘(I) commence not later than 24
                                                                       2                                         hours after a request is made under
                                                                       3                                         subparagraph (B); and
                                                                       4                                                  ‘‘(II) conclude not later than 24
                                                                       5                                         hours after such commencement.
                                                                       6                                         ‘‘(ii)         DETERMINATION.—Not                      later
                                                                       7                                 than 72 hours after a review concludes
                                                                       8                                 under clause (i)(II), the Secretary shall de-
                                                                       9                                 termine whether to affirm, modify, or re-
                                                                     10                                  voke the contested order.
                                                                     11                         ‘‘(4) HEARINGS AND APPEALS.—Any person ag-
                                                                     12                grieved by a determination of the Secretary under
                                                                     13                paragraph (3)(C)(ii) may—
                                                                     14                                  ‘‘(A) request a hearing to appeal such de-
                                                                     15                         termination to an administrative law judge; and
                                                                     16                                  ‘‘(B) appeal an order of an administrative
                                                                     17                         law judge under subparagraph (A) to any Fed-
                                                                     18                         eral or State court of competent jurisdiction.
                                                                     19                         ‘‘(5) ACTION FOR INJUNCTION.—The Secretary
                                                                     20                may petition any district court of the United States
                                                                     21                to restrain a violation of an order issued under para-
                                                                     22                graph (1). A court shall issue such relief if the Sec-
                                                                     23                retary has demonstrated it is just and proper.
                                                                     24                         ‘‘(6) SUCCESSFULLY DISPROVING OCCURRENCE



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                                                                     25                OF MISCLASSIFICATION.—



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                                                                                                                           190
                                                                       1                                 ‘‘(A) IN GENERAL.—If an employer with
                                                                       2                        respect to whom an order was issued under
                                                                       3                        paragraph (1) successfully proves through a re-
                                                                       4                        view under paragraph (3), or a subsequent
                                                                       5                        hearing or appeals proceeding under paragraph
                                                                       6                        (4), that the 1 or more individuals who were
                                                                       7                        the subject of the order were not misclassified
                                                                       8                        in violation of section 105(c)—
                                                                       9                                         ‘‘(i) the order issued under paragraph
                                                                     10                                  (1) shall cease to be in effect;
                                                                     11                                          ‘‘(ii) the employer shall not be liable
                                                                     12                                  for any applicable back pay, damages, or
                                                                     13                                  civil penalties owed by the employer under
                                                                     14                                  this         title          with           respect             to   the
                                                                     15                                  misclassification of such 2 or more individ-
                                                                     16                                  uals; and
                                                                     17                                          ‘‘(iii) the Secretary of Labor, adminis-
                                                                     18                                  trative law judge, or court, as applicable,
                                                                     19                                  shall award (and the Secretary of the
                                                                     20                                  Treasury shall, in accordance with sub-
                                                                     21                                  paragraph (B), pay) to the employer rea-
                                                                     22                                  sonable fees and expenses of attorneys in
                                                                     23                                  the same manner as such fees and ex-
                                                                     24                                  penses could be awarded under section



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                                                                     25                                  2412 of title 28, United States Code, if the


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                                                                                                                             191
                                                                       1                                 employer was a prevailing party and the
                                                                       2                                 review, hearing, or appeals proceeding was
                                                                       3                                 a civil action brought by or against the
                                                                       4                                 United States.
                                                                       5                                 ‘‘(B) SOURCE OF FUNDS.—The Secretary
                                                                       6                        of the Treasury shall, upon notification by the
                                                                       7                        Secretary of Labor, administrative law judge, or
                                                                       8                        court, as applicable, pay any fees or expenses
                                                                       9                        awarded under subparagraph (A)(iii) from
                                                                     10                         amounts in the general fund of the Treasury.
                                                                     11                ‘‘(b) STOP WORK ORDERS.—
                                                                     12                         ‘‘(1) IN GENERAL.—In any case where an em-
                                                                     13                ployer does not comply with a reclassification order
                                                                     14                issued by the Secretary under subsection (a)(1), with
                                                                     15                respect           to     2       or      more           individuals              who   are
                                                                     16                misclassified in violation of section 105(c), within 30
                                                                     17                days of being served the order, the Secretary shall
                                                                     18                issue—
                                                                     19                                  ‘‘(A) subject to subparagraph (B), an
                                                                     20                         order against the employer requiring the ces-
                                                                     21                         sation of all business operations of such em-
                                                                     22                         ployer at the location of the violation; or
                                                                     23                                  ‘‘(B) if an order described in subparagraph
                                                                     24                         (A) has been previously issued against the em-



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                                                                     25                         ployer by any Federal, State, or local agency


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                                                                                                                           192
                                                                       1                        for misclassifying an eligible employee as not an
                                                                       2                        employee in violation of section 105(c), or an
                                                                       3                        equivalent State or local law as determined by
                                                                       4                        the Secretary, an order against the employer re-
                                                                       5                        quiring the cessation of all business operations
                                                                       6                        of such employer at all business locations of the
                                                                       7                        employer, including locations other than the lo-
                                                                       8                        cation where the misclassification occurred.
                                                                       9                        ‘‘(2) ORDERS.—
                                                                     10                                  ‘‘(A) APPLICABILITY.—An order issued
                                                                     11                         under paragraph (1) shall—
                                                                     12                                          ‘‘(i) be effective at the time at which
                                                                     13                                  the order is served upon the employer,
                                                                     14                                  which may be accomplished by the posting
                                                                     15                                  of a copy of the order in a conspicuous lo-
                                                                     16                                  cation at the place of business of the em-
                                                                     17                                  ployer; and
                                                                     18                                          ‘‘(ii) remain in effect—
                                                                     19                                                   ‘‘(I) during any review conducted
                                                                     20                                          under paragraph (3) with respect to
                                                                     21                                          such order and during any hearing
                                                                     22                                          and appeal of such order under para-
                                                                     23                                          graph (4); and
                                                                     24                                                   ‘‘(II) until the Secretary issues a



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                                                                     25                                          release order under subparagraph (B).


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                                                                                                                           193
                                                                       1                                 ‘‘(B) RELEASE ORDERS.—
                                                                       2                                         ‘‘(i) IN GENERAL.—An order issued
                                                                       3                                 under paragraph (1) (that is not revoked
                                                                       4                                 by the Secretary or held unlawful or set
                                                                       5                                 aside by an administrative law judge or a
                                                                       6                                 court) shall remain in effect until the Sec-
                                                                       7                                 retary issues another order releasing the
                                                                       8                                 order issued under such paragraph upon a
                                                                       9                                 finding by the Secretary that the em-
                                                                     10                                  ployer—
                                                                     11                                                   ‘‘(I) has corrected the violation of
                                                                     12                                          section 105(c) with respect to the 2 or
                                                                     13                                          more              individuals                   who    were
                                                                     14                                          misclassified resulting in the order;
                                                                     15                                          and
                                                                     16                                                   ‘‘(II) has agreed to a payment
                                                                     17                                          schedule for all applicable back pay,
                                                                     18                                          damages, and civil penalties owed by
                                                                     19                                          the employer under this title.
                                                                     20                                          ‘‘(ii) REINSTATEMENT.—If, at any
                                                                     21                                  time after the Secretary issues a release
                                                                     22                                  order under clause (i), the employer fails
                                                                     23                                  to comply with the terms of the payment
                                                                     24                                  schedule described in clause (i)(II), the



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                                                                     25                                  Secretary shall reinstate the order issued


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                                                                                                                           194
                                                                       1                                 under paragraph (1) until the employer is
                                                                       2                                 in compliance with such terms.
                                                                       3                        ‘‘(3) REVIEW FOR RECONSIDERATION.—
                                                                       4                                 ‘‘(A) IN GENERAL.—An employer against
                                                                       5                        whom an order is issued under paragraph (1)
                                                                       6                        may request a review by the Secretary to con-
                                                                       7                        test the order.
                                                                       8                                 ‘‘(B) REQUESTS.—A request under sub-
                                                                       9                        paragraph (A) shall be made in writing to the
                                                                     10                         Secretary not more than 5 days after the
                                                                     11                         issuance of the order.
                                                                     12                                  ‘‘(C) REQUIREMENTS FOR REVIEW.—
                                                                     13                                          ‘‘(i) IN         GENERAL.—A                    review under
                                                                     14                                  this paragraph shall—
                                                                     15                                                   ‘‘(I) commence not later than 24
                                                                     16                                          hours after a request is made under
                                                                     17                                          subparagraph (B); and
                                                                     18                                                   ‘‘(II) conclude not later than 24
                                                                     19                                          hours after such commencement.
                                                                     20                                          ‘‘(ii)         DETERMINATION.—Not                      later
                                                                     21                                  than 72 hours after a review concludes
                                                                     22                                  under clause (i)(II), the Secretary shall de-
                                                                     23                                  termine whether to affirm, modify, or re-
                                                                     24                                  voke the contested order.



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                                                                       1                        ‘‘(4) HEARING AND APPEALS.—Any person ag-
                                                                       2               grieved by a determination of the Secretary under
                                                                       3               paragraph (3)(C)(ii) may—
                                                                       4                                 ‘‘(A) request a hearing to appeal such de-
                                                                       5                        termination to an administrative law judge; and
                                                                       6                                 ‘‘(B) appeal an order of an administrative
                                                                       7                        law judge under subparagraph (A) to any Fed-
                                                                       8                        eral or State court of competent jurisdiction.
                                                                       9                        ‘‘(5) ACTION FOR INJUNCTION.—The Secretary
                                                                     10                may petition any district court of the United States
                                                                     11                to restrain a violation of an order issued under para-
                                                                     12                graph (1). A court shall issue such relief if the Sec-
                                                                     13                retary has demonstrated it is just and proper.
                                                                     14                         ‘‘(6) COMPENSATION FOR LOST WORK.—
                                                                     15                                  ‘‘(A) IN GENERAL.—Subject to subpara-
                                                                     16                         graph (B), an employer with respect to whom
                                                                     17                         an order is issued under paragraph (1) shall
                                                                     18                         pay each eligible employee of the employer who
                                                                     19                         loses compensation due to the work of such em-
                                                                     20                         ployee ceasing as a result of such order, the
                                                                     21                         compensation that would be owed to such em-
                                                                     22                         ployee if the order was not issued.
                                                                     23                                  ‘‘(B)        LIMITATION.—Compensation                          paid
                                                                     24                         under subparagraph (A) shall be for each day,



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                                                                     25                         not to exceed 10 days, for which the eligible


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                                                                       1                        employee would be paid if the order described
                                                                       2                        in such subparagraph were not in effect.
                                                                       3                        ‘‘(7) SUCCESSFULLY DISPROVING OCCURRENCE
                                                                       4               OF MISCLASSIFICATION.—

                                                                       5                                 ‘‘(A) IN GENERAL.—In any case where an
                                                                       6                        employer with respect to whom an order was
                                                                       7                        issued under paragraph (1) successfully proves
                                                                       8                        through a review under paragraph (3), or a
                                                                       9                        subsequent hearing or appeals proceeding under
                                                                     10                         paragraph (4), that the 2 or more individuals
                                                                     11                         who were the subject of the order were not
                                                                     12                         misclassified in violation of section 105(c)—
                                                                     13                                          ‘‘(i) the order issued under paragraph
                                                                     14                                  (1), and any order issued against the em-
                                                                     15                                  ployer under subsection (a)(1) with respect
                                                                     16                                  to such 2 or more individuals, shall cease
                                                                     17                                  to be in effect;
                                                                     18                                          ‘‘(ii) the employer shall not be liable
                                                                     19                                  for any applicable back pay, damages, or
                                                                     20                                  civil penalties owed by the employer under
                                                                     21                                  this         title          with           respect             to   the
                                                                     22                                  misclassification of such 2 or more individ-
                                                                     23                                  uals; and
                                                                     24                                          ‘‘(iii) the Secretary of Labor, adminis-



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                                                                     25                                  trative law judge, or court, as applicable,


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                                                                       1                                 shall award (and the Secretary of the
                                                                       2                                 Treasury shall, in accordance with sub-
                                                                       3                                 paragraph (B), pay) to the employer—
                                                                       4                                                  ‘‘(I) an amount equal to any de-
                                                                       5                                         monstrable lost net profits resulting
                                                                       6                                         from the order, as demonstrated by
                                                                       7                                         clear and convincing evidence; and
                                                                       8                                                  ‘‘(II) reasonable fees and ex-
                                                                       9                                         penses of attorneys in the same man-
                                                                     10                                          ner as such fees and expenses could
                                                                     11                                          be awarded under section 2412 of title
                                                                     12                                          28, United States Code, if the em-
                                                                     13                                          ployer was a prevailing party and the
                                                                     14                                          review, hearing, or appeals proceeding
                                                                     15                                          was a civil action brought by or
                                                                     16                                          against the United States.
                                                                     17                                  ‘‘(B) SOURCE OF FUNDS.—The Secretary
                                                                     18                         of the Treasury shall, upon notification by the
                                                                     19                         Secretary of Labor, administrative law judge, or
                                                                     20                         court, as applicable, pay any amounts, fees, or
                                                                     21                         expenses awarded under subparagraph (A)(iii)
                                                                     22                         from amounts available in the general fund of
                                                                     23                         the Treasury.’’.
                                                                     24                                  (B) PENALTIES.—Section 107(b) of the



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                                                                     25                         Family and Medical Leave Act of 1993 (29


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                                                                                                                           198
                                                                       1                        U.S.C. 2617(b)), as amended by paragraph
                                                                       2                        (1)(C), is further amended by adding at the end
                                                                       3                        the following:
                                                                       4                        ‘‘(5) PENALTIES FOR VIOLATIONS OF RECLASSI-
                                                                       5               FICATION ORDERS.—

                                                                       6                                 ‘‘(A) CIVIL               PENALTIES.—Any                       employer
                                                                       7                        who violates a reclassification order issued by
                                                                       8                        the Secretary under section 107A(a)(1) shall be
                                                                       9                        subject to a civil penalty of not less than
                                                                     10                         $5,000 per day, with each day constituting a
                                                                     11                         separate offense.
                                                                     12                                  ‘‘(B) ADDITIONAL DAMAGES.—In any case
                                                                     13                         in which an employer contests a reclassification
                                                                     14                         order issued under paragraph (1) of section
                                                                     15                         107A(a) in a review under paragraph (3) of
                                                                     16                         such section, a hearing under paragraph (4)(A)
                                                                     17                         of such section, and a subsequent judicial pro-
                                                                     18                         ceeding under paragraph (4)(B) of such section,
                                                                     19                         and the court in such proceeding rules in favor
                                                                     20                         of the Secretary—
                                                                     21                                          ‘‘(i) the court shall determine if, dur-
                                                                     22                                  ing the period between the issuance of such
                                                                     23                                  order and the conclusion of the proceeding,
                                                                     24                                  the employer violated such order by not



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                                                                       1                                 classifying the 1 or more individuals as eli-
                                                                       2                                 gible employees during that period; and
                                                                       3                                         ‘‘(ii) if the court determines the em-
                                                                       4                                 ployer so violated the order during that pe-
                                                                       5                                 riod—
                                                                       6                                                  ‘‘(I) the court shall determine the
                                                                       7                                         amount of net profits derived by the
                                                                       8                                         employer from the individuals’ labor
                                                                       9                                         during that period; and
                                                                     10                                                   ‘‘(II) the court shall assess dam-
                                                                     11                                          ages in the amount determined under
                                                                     12                                          subclause (I), which damages shall be
                                                                     13                                          awarded to such individuals by the
                                                                     14                                          court.’’.
                                                                     15                (i) FEDERAL UNEMPLOYMENT TAX ACT (FUTA).—
                                                                     16                         (1) IN GENERAL.—Section 3306 of the Internal
                                                                     17                Revenue Code of 1986 is amended by adding at the
                                                                     18                end the following new subsection:
                                                                     19                ‘‘(w) SPECIAL RULES FOR PURPOSES OF DEFINING
                                                                     20 EMPLOYER AND EMPLOYEE.—In defining employer and
                                                                     21 employee for purposes of this chapter, such definitions
                                                                     22 shall comply with the following:
                                                                     23                         ‘‘(1) Paragraph (4) of section 3(d) of the Fair
                                                                     24                Labor Standards Act of 1938.



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                                                                       1                        ‘‘(2) Paragraphs (6), (7), (8), and (9) of section
                                                                       2               3(e) of such Act.’’.
                                                                       3                        (2) EFFECTIVE DATE.—The amendments made
                                                                       4               by paragraph (1) shall apply to services rendered on
                                                                       5               or after January 1, 2022.
                                                                       6 TITLE II—SMALL BUSINESS PRO-
                                                                       7    TECTION THROUGH SHARED
                                                                       8    RESPONSIBILITY FOR WORK-
                                                                       9    ERS’ RIGHTS
                                                                     10      SEC. 201. GENERAL SHARED RESPONSIBILITY FOR WORK-

                                                                     11                              ERS’ RIGHTS.

                                                                     12                (a) FAIR LABOR STANDARDS ACT OF 1938.—Section
                                                                     13 3(d) of the Fair Labor Standards Act of 1938 (29 U.S.C.
                                                                     14 203(d)), as amended by section 102(a)(6)(A), is further
                                                                     15 amended by adding at the end the following:
                                                                     16                         ‘‘(5) MULTIPLE EMPLOYERS.—
                                                                     17                                  ‘‘(A) RULE               OF        INTERPRETATION.—This

                                                                     18                         paragraph—
                                                                     19                                          ‘‘(i) is to be read as an addition to,
                                                                     20                                  and an augmentation and expansion of, all
                                                                     21                                  relevant judicial and agency interpretations
                                                                     22                                  in existence on the date of enactment of
                                                                     23                                  the Worker Flexibility and Small Business
                                                                     24                                  Protection Act of 2020 regarding which



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                                                                     25                                  persons qualify as employers in relation to


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                                                                       1                                 a given employee under this Act, including
                                                                       2                                 in a multiple employer or joint employment
                                                                       3                                 structure;
                                                                       4                                         ‘‘(ii) shall not be interpreted by any
                                                                       5                                 court or agency as a restriction on, or nar-
                                                                       6                                 rowing of, any such interpretations; and
                                                                       7                                         ‘‘(iii) is not a codification of the com-
                                                                       8                                 mon law and shall not be interpreted to re-
                                                                       9                                 flect, or to be limited or restricted by, com-
                                                                     10                                  mon law interpretations regarding whether
                                                                     11                                  a person is an employer of a given em-
                                                                     12                                  ployee or whether multiple persons are em-
                                                                     13                                  ployers of a given employee.
                                                                     14                                  ‘‘(B) IN GENERAL.—Two or more persons
                                                                     15                         shall be employers with respect to an employee
                                                                     16                         if each such person individually, acting directly
                                                                     17                         or indirectly, is an employer of the employee,
                                                                     18                         based on and in accordance with the meaning
                                                                     19                         given the term ‘employer’ under paragraphs
                                                                     20                         (1), (2), and (3) of this subsection, the defini-
                                                                     21                         tion of ‘employee’ under subsection (e), and the
                                                                     22                         definition of ‘employ’ under subsection (g).
                                                                     23                                  ‘‘(C) ADDITIONAL                      MULTIPLE EMPLOYER

                                                                     24                         DETERMINATIONS.—Notwithstanding                                         subpara-



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                                                                     25                         graph (B), 2 or more persons shall be employ-


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                                                                                                                           202
                                                                       1                        ers, acting directly or indirectly, with respect to
                                                                       2                        an employee if—
                                                                       3                                         ‘‘(i) each such person directly or indi-
                                                                       4                                 rectly benefits or seeks to directly or indi-
                                                                       5                                 rectly benefit from the performance of
                                                                       6                                 labor by an employee; and
                                                                       7                                         ‘‘(ii)(I) each such person exerts actual
                                                                       8                                 direction or control, directly or indirectly,
                                                                       9                                 over any material term or condition of em-
                                                                     10                                  ployment               of    the        employee,              including
                                                                     11                                  through an intermediary;
                                                                     12                                          ‘‘(II) each such person exerts func-
                                                                     13                                  tional direction or control, directly or indi-
                                                                     14                                  rectly, over any material term or condition
                                                                     15                                  of employment of the employee, including
                                                                     16                                  through an intermediary;
                                                                     17                                          ‘‘(III) each such person is legally ca-
                                                                     18                                  pable, without regard as to whether such
                                                                     19                                  capability is used, of directly or indi-
                                                                     20                                  rectly—
                                                                     21                                                   ‘‘(aa) exerting direction or con-
                                                                     22                                          trol over any material term or condi-
                                                                     23                                          tion of employment of the employee;
                                                                     24                                                   ‘‘(bb) ensuring compliance with



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                                                                     25                                          the requirements of this Act with re-


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                                                                                                                           203
                                                                       1                                         gard to the employee’s performance of
                                                                       2                                         such labor; or
                                                                       3                                                  ‘‘(cc) upholding the rights and
                                                                       4                                         protections of this Act with regard to
                                                                       5                                         the employee’s performance of such
                                                                       6                                         labor; or
                                                                       7                                         ‘‘(IV) based on an act or omission of
                                                                       8                                 the 2 or more persons, the employee rea-
                                                                       9                                 sonably believed that such persons were
                                                                     10                                  the employee’s employers and the employee
                                                                     11                                  did not have actual knowledge that any of
                                                                     12                                  the persons were not the employee’s em-
                                                                     13                                  ployer under this Act.’’.
                                                                     14                (b) NATIONAL LABOR RELATIONS ACT.—Section
                                                                     15 2(2) of the National Labor Relations Act (29 U.S.C.
                                                                     16 152(2)), as amended by section 102(b)(6)(A), is further
                                                                     17 amended by adding at the end the following:
                                                                     18                                  ‘‘(C) MULTIPLE EMPLOYERS.—
                                                                     19                                          ‘‘(i) RULE                 OF     INTERPRETATION.—

                                                                     20                                  This subparagraph—
                                                                     21                                                   ‘‘(I) is to be read as an addition
                                                                     22                                          to, and an augmentation and expan-
                                                                     23                                          sion of, all relevant judicial and agen-
                                                                     24                                          cy interpretations in existence on the



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                                                                     25                                          date of enactment of the Worker


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                                                                                                                           204
                                                                       1                                         Flexibility and Small Business Protec-
                                                                       2                                         tion Act of 2020 regarding which per-
                                                                       3                                         sons qualify as employers in relation
                                                                       4                                         to a given employee under this Act,
                                                                       5                                         including in a multiple employer or
                                                                       6                                         joint employment structure;
                                                                       7                                                  ‘‘(II) shall not be interpreted by
                                                                       8                                         any court or agency as a restriction
                                                                       9                                         on, or narrowing of, any such inter-
                                                                     10                                          pretations; and
                                                                     11                                                   ‘‘(III) is not a codification of the
                                                                     12                                          common law and shall not be inter-
                                                                     13                                          preted to reflect, or to be limited or
                                                                     14                                          restricted by, common law interpreta-
                                                                     15                                          tions regarding whether a person is
                                                                     16                                          an employer of a given employee or
                                                                     17                                          whether multiple persons are employ-
                                                                     18                                          ers of a given employee.
                                                                     19                                          ‘‘(ii) IN GENERAL.—Two or more per-
                                                                     20                                  sons shall be employers with respect to an
                                                                     21                                  employee if each such person individually,
                                                                     22                                  acting directly or indirectly, is an employer
                                                                     23                                  of the employee, based on and in accord-
                                                                     24                                  ance with the meanings given the term



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                                                                                                                           205
                                                                       1                                 ‘employer’ under subparagraph (A) and
                                                                       2                                 the term ‘employee’ under paragraph (3).
                                                                       3                                         ‘‘(iii)        ADDITIONAL                 MULTIPLE     EM-

                                                                       4                                 PLOYER                   DETERMINATIONS.—Notwith-

                                                                       5                                 standing clause (ii), 2 or more persons
                                                                       6                                 shall be employers, acting directly or indi-
                                                                       7                                 rectly, with respect to an employee if—
                                                                       8                                                  ‘‘(I) each such person directly or
                                                                       9                                         indirectly benefits or seeks to directly
                                                                     10                                          or indirectly benefit from the perform-
                                                                     11                                          ance of labor by an employee; and
                                                                     12                                                   ‘‘(II)(aa) each such person exerts
                                                                     13                                          actual direction or control, directly or
                                                                     14                                          indirectly, over any material term or
                                                                     15                                          condition of employment of the em-
                                                                     16                                          ployee, including through an inter-
                                                                     17                                          mediary;
                                                                     18                                                   ‘‘(bb) each such person exerts
                                                                     19                                          functional direction or control, directly
                                                                     20                                          or indirectly, over any material term
                                                                     21                                          or condition of employment of the em-
                                                                     22                                          ployee, including through an inter-
                                                                     23                                          mediary;
                                                                     24                                                   ‘‘(cc) each such person is legally



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                                                                     25                                          capable, without regard as to whether


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                                                                                                                           206
                                                                       1                                         such capability is used, of directly or
                                                                       2                                         indirectly—
                                                                       3                                                           ‘‘(AA) exerting direction or
                                                                       4                                                  control over any material term or
                                                                       5                                                  condition of employment of the
                                                                       6                                                  employee;
                                                                       7                                                           ‘‘(BB) ensuring compliance
                                                                       8                                                  with the requirements of this Act
                                                                       9                                                  with regard to the employee’s
                                                                     10                                                   performance of such labor; or
                                                                     11                                                            ‘‘(CC) upholding the rights
                                                                     12                                                   and protections of this Act with
                                                                     13                                                   regard to the employee’s per-
                                                                     14                                                   formance of such labor;
                                                                     15                                                   ‘‘(dd) based on an act or omis-
                                                                     16                                          sion of the 2 or more persons, the em-
                                                                     17                                          ployee reasonably believed that such
                                                                     18                                          persons were the employee’s employ-
                                                                     19                                          ers and the employee did not have ac-
                                                                     20                                          tual knowledge that any of the per-
                                                                     21                                          sons were not the employee’s employer
                                                                     22                                          under this Act; or
                                                                     23                                                   ‘‘(ee) based on the totality of the
                                                                     24                                          circumstances of the industrial reali-



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                                                                     25                                          ties, including the way separate per-


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                                                                                                                           207
                                                                       1                                         sons have structured their commercial
                                                                       2                                         relationship, 2 or more persons wield
                                                                       3                                         sufficient influence over any material
                                                                       4                                         term or condition of employment of
                                                                       5                                         the employee such that meaningful
                                                                       6                                         bargaining could not occur in the ab-
                                                                       7                                         sence of the 2 or more persons.’’.
                                                                       8               (c) OCCUPATIONAL SAFETY AND HEALTH ACT OF
                                                                       9 1970.—Section 3(5) of the Occupational Safety and
                                                                     10 Health Act of 1970 (29 U.S.C. 652(5)), as amended by
                                                                     11 section 102(c)(6)(A), is further amended by adding at the
                                                                     12 end the following:
                                                                     13                         ‘‘(C) MULTIPLE EMPLOYERS.—
                                                                     14                                  ‘‘(i) RULE               OF        INTERPRETATION.—This

                                                                     15                         subparagraph—
                                                                     16                                          ‘‘(I) is to be read as an addition to,
                                                                     17                                  and an augmentation and expansion of, all
                                                                     18                                  relevant judicial and agency interpretations
                                                                     19                                  in existence on the date of enactment of
                                                                     20                                  the Worker Flexibility and Small Business
                                                                     21                                  Protection Act of 2020 regarding which
                                                                     22                                  persons qualify as employers in relation to
                                                                     23                                  a given employee under this Act, including
                                                                     24                                  in a multiple employer or joint employment



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                                                                     25                                  structure;


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                                                                       1                                         ‘‘(II) shall not be interpreted by any
                                                                       2                                 court or agency as a restriction on, or nar-
                                                                       3                                 rowing of, any such interpretations; and
                                                                       4                                         ‘‘(III) is not a codification of the com-
                                                                       5                                 mon law and shall not be interpreted to re-
                                                                       6                                 flect, or to be limited or restricted by, com-
                                                                       7                                 mon law interpretations regarding whether
                                                                       8                                 a person is an employer of a given em-
                                                                       9                                 ployee or whether multiple persons are em-
                                                                     10                                  ployers of a given employee.
                                                                     11                                  ‘‘(ii) IN GENERAL.—Two or more persons
                                                                     12                         shall be employers with respect to an employee
                                                                     13                         if each such person individually, acting directly
                                                                     14                         or indirectly, is an employer of the employee,
                                                                     15                         based on and in accordance with the meaning
                                                                     16                         given the term ‘employer’ under subparagraph
                                                                     17                         (A) and the definition of ‘employee’ under para-
                                                                     18                         graph (6).
                                                                     19                                  ‘‘(iii) ADDITIONAL                    MULTIPLE EMPLOYER

                                                                     20                         DETERMINATIONS.—Notwithstanding                                         clause
                                                                     21                         (ii), 2 or more persons shall be employers, act-
                                                                     22                         ing directly or indirectly, with respect to an em-
                                                                     23                         ployee if—
                                                                     24                                          ‘‘(I) each such person directly or indi-



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                                                                     25                                  rectly benefits or seeks to directly or indi-


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                                                                                                                           209
                                                                       1                                 rectly benefit from the performance of
                                                                       2                                 labor by an employee; and
                                                                       3                                         ‘‘(II)(aa) each such person exerts ac-
                                                                       4                                 tual direction or control, directly or indi-
                                                                       5                                 rectly, over any material term or condition
                                                                       6                                 of employment of the employee, including
                                                                       7                                 through an intermediary;
                                                                       8                                                  ‘‘(bb) each such person exerts
                                                                       9                                         functional direction or control, directly
                                                                     10                                          or indirectly, over any material term
                                                                     11                                          or condition of employment of the em-
                                                                     12                                          ployee, including through an inter-
                                                                     13                                          mediary;
                                                                     14                                                   ‘‘(cc) each such person is legally
                                                                     15                                          capable, without regard as to whether
                                                                     16                                          such capability is used, of directly or
                                                                     17                                          indirectly—
                                                                     18                                                            ‘‘(AA) exerting direction or
                                                                     19                                                   control over any material term or
                                                                     20                                                   condition of employment of the
                                                                     21                                                   employee;
                                                                     22                                                            ‘‘(BB) ensuring compliance
                                                                     23                                                   with the requirements of this Act
                                                                     24                                                   with regard to the employee’s



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                                                                     25                                                   performance of such labor; or


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                                                                       1                                                           ‘‘(CC) upholding the rights
                                                                       2                                                  and protections of this Act with
                                                                       3                                                  regard to the employee’s per-
                                                                       4                                                  formance of such labor; or
                                                                       5                                                  ‘‘(dd) based on an act or omis-
                                                                       6                                         sion of the 2 or more persons, the em-
                                                                       7                                         ployee reasonably believed that such
                                                                       8                                         persons were the employee’s employ-
                                                                       9                                         ers and the employee did not have ac-
                                                                     10                                          tual knowledge that any of the per-
                                                                     11                                          sons were not the employee’s employer
                                                                     12                                          under this Act.’’.
                                                                     13                (d) FEDERAL MINE SAFETY AND HEALTH ACT OF
                                                                     14 1977.—The Federal Mine Safety and Health Act of 1977
                                                                     15 (30 U.S.C. 801 et seq.), as amended by paragraphs (1)
                                                                     16 and (2) of section 102(d), is further amended by inserting
                                                                     17 after section 4A the following:
                                                                     18      ‘‘SEC. 4B. APPLICABILITY TO MULTIPLE EMPLOYERS AND

                                                                     19                              RELATED ENTITIES.

                                                                     20                ‘‘(a) MULTIPLE EMPLOYERS.—
                                                                     21                         ‘‘(1) RULE OF INTERPRETATION.—This sub-
                                                                     22                section—
                                                                     23                                  ‘‘(A) is to be read as an addition to, and
                                                                     24                         an augmentation and expansion of, all relevant



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                                                                     25                         judicial and agency interpretations in existence


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                                                                                                                           211
                                                                       1                        on the date of enactment of the Worker Flexi-
                                                                       2                        bility and Small Business Protection Act of
                                                                       3                        2020 regarding which persons qualify as opera-
                                                                       4                        tors in relation to a given miner under this Act,
                                                                       5                        including in a multiple employer or joint em-
                                                                       6                        ployment structure;
                                                                       7                                 ‘‘(B) shall not be interpreted by any court
                                                                       8                        or agency as a restriction on, or narrowing of,
                                                                       9                        any such interpretations; and
                                                                     10                                  ‘‘(C) is not a codification of the common
                                                                     11                         law and shall not be interpreted to reflect, or to
                                                                     12                         be limited or restricted by, common law inter-
                                                                     13                         pretations regarding whether a person is an em-
                                                                     14                         ployer of a given miner or whether multiple per-
                                                                     15                         sons are employers with respect to a given
                                                                     16                         miner.
                                                                     17                         ‘‘(2) IN GENERAL.—Two or more persons shall
                                                                     18                be employers with respect to a miner of a coal or
                                                                     19                other mine if, based on the definitions given the
                                                                     20                terms ‘operator’ and ‘miner’ in section 3, each such
                                                                     21                person individually satisfies the definition of an op-
                                                                     22                erator under this Act in relation to a given miner.
                                                                     23                         ‘‘(3) ADDITIONAL                     MULTIPLE EMPLOYER DE-

                                                                     24                TERMINATIONS.—Notwithstanding paragraph (2), 2




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                                                                     25                or more persons shall be employers, acting directly


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                                                                                                                           212
                                                                       1               or indirectly, with respect to a miner of a coal or
                                                                       2               other mine if—
                                                                       3                                 ‘‘(A) one of the persons is an operator of
                                                                       4                        a coal or other mine and the miner is per-
                                                                       5                        forming labor for the operator;
                                                                       6                                 ‘‘(B) each such person directly or indi-
                                                                       7                        rectly benefits or seeks to directly or indirectly
                                                                       8                        benefit from the performance of labor by the
                                                                       9                        miner; and
                                                                     10                                  ‘‘(C)(i) each such person exerts actual di-
                                                                     11                         rection or control, directly or indirectly, over
                                                                     12                         any material term or condition of employment
                                                                     13                         of the miner, including through an inter-
                                                                     14                         mediary;
                                                                     15                                  ‘‘(ii) each such person exerts functional di-
                                                                     16                         rection or control, directly or indirectly, over
                                                                     17                         any material term or condition of employment
                                                                     18                         of the miner, including through an inter-
                                                                     19                         mediary;
                                                                     20                                  ‘‘(iii) each such person is legally capable,
                                                                     21                         without regard as to whether such capability is
                                                                     22                         used, of directly or indirectly—
                                                                     23                                          ‘‘(I) exerting direction or control over
                                                                     24                                  any material term or condition of employ-



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                                                                     25                                  ment of the miner;


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                                                                                                                           213
                                                                       1                                         ‘‘(II) ensuring compliance with the re-
                                                                       2                                 quirements of this Act with regard to the
                                                                       3                                 miner’s performance of such labor; or
                                                                       4                                         ‘‘(III) upholding the rights and pro-
                                                                       5                                 tections of this Act with regard to the min-
                                                                       6                                 er’s performance of such labor; or
                                                                       7                                 ‘‘(iv) based on an act or omission of the 2
                                                                       8                        or more persons, the miner reasonably believed
                                                                       9                        that such persons were the miner’s employers
                                                                     10                         and the miner did not have actual knowledge
                                                                     11                         that any of the persons were not the miner’s
                                                                     12                         employer under this Act.’’.
                                                                     13                (e) MIGRANT AND SEASONAL AGRICULTURAL WORK-
                                                                     14      ER PROTECTION ACT.—Section 5 of the Migrant and Sea-

                                                                     15 sonal Agricultural Worker Protection Act (29 U.S.C.
                                                                     16 1803), as redesignated by section 102(e)(1)(A), is further
                                                                     17 amended by adding at the end the following:
                                                                     18                ‘‘(c) EXPANDED APPLICABILITY.—
                                                                     19                         ‘‘(1) RESPONSIBILITY OF AGRICULTURAL EM-
                                                                     20                PLOYERS AND AGRICULTURAL ASSOCIATIONS FOR

                                                                     21                WORKERS OF FARM LABOR CONTRACTORS.—In any

                                                                     22                case where an agricultural employer or an agricul-
                                                                     23                tural association has entered into an agreement with
                                                                     24                a farm labor contractor to provide migrant agricul-



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                                                                     25                tural workers or seasonal agricultural workers to the


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                                                                       1               employer or association, both the agricultural em-
                                                                       2               ployer or association and the farm labor contractor
                                                                       3               shall be responsible for the rights and protections of
                                                                       4               this Act with regard to the migrant agricultural
                                                                       5               worker or seasonal agricultural worker, as the case
                                                                       6               may be, in any case where the farm labor contractor
                                                                       7               is responsible for the rights and protections of this
                                                                       8               Act.
                                                                       9                        ‘‘(2) MULTIPLE EMPLOYERS.—
                                                                     10                                  ‘‘(A) RULE               OF        INTERPRETATION.—This

                                                                     11                         paragraph—
                                                                     12                                          ‘‘(i) is to be read as an addition to,
                                                                     13                                  and an augmentation and expansion of, all
                                                                     14                                  relevant judicial and agency interpretations
                                                                     15                                  in existence on the date of enactment of
                                                                     16                                  the Worker Flexibility and Small Business
                                                                     17                                  Protection Act of 2020 regarding which
                                                                     18                                  persons qualify as agricultural employers,
                                                                     19                                  agricultural associations, or farm labor
                                                                     20                                  contractors in relation to a given employee
                                                                     21                                  under this Act, including in a multiple em-
                                                                     22                                  ployer or joint employment structure;
                                                                     23                                          ‘‘(ii) shall not be interpreted by any
                                                                     24                                  court or agency as a restriction on, or nar-



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                                                                     25                                  rowing of, any such interpretations; and


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                                                                                                                           215
                                                                       1                                         ‘‘(iii) is not a codification of the com-
                                                                       2                                 mon law and shall not be interpreted to re-
                                                                       3                                 flect, or to be limited or restricted by, com-
                                                                       4                                 mon law interpretations regarding whether
                                                                       5                                 a person is an employer of a given migrant
                                                                       6                                 agricultural worker or seasonal agricultural
                                                                       7                                 worker or whether multiple persons are
                                                                       8                                 employers of a given worker.
                                                                       9                                 ‘‘(B) IN GENERAL.—Two or more persons,
                                                                     10                         acting directly or indirectly, shall be responsible
                                                                     11                         for the rights and protections of this Act with
                                                                     12                         respect to a migrant agricultural worker or sea-
                                                                     13                         sonal agricultural worker, if based on the appli-
                                                                     14                         cation of the definitions of ‘agricultural associa-
                                                                     15                         tion’, ‘agricultural employer’, ‘agricultural em-
                                                                     16                         ployment’, ‘employ’, ‘farm labor contractor’,
                                                                     17                         ‘migrant agricultural worker’, and ‘seasonal ag-
                                                                     18                         ricultural worker’ under section 3, each such
                                                                     19                         person individually satisfies the definition of a
                                                                     20                         farm labor contractor, agricultural employer, or
                                                                     21                         agricultural association under this Act in rela-
                                                                     22                         tion to a given migrant agricultural worker or
                                                                     23                         seasonal agricultural worker.
                                                                     24                                  ‘‘(C) ADDITIONAL                      MULTIPLE EMPLOYER




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                                                                     25                         DETERMINATIONS.—Notwithstanding                                         subpara-


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                                                                                                                           216
                                                                       1                        graph (B), 2 or more persons, acting directly or
                                                                       2                        indirectly, shall be responsible for the rights
                                                                       3                        and protections of this Act with respect to a mi-
                                                                       4                        grant agricultural worker or seasonal agricul-
                                                                       5                        tural worker if—
                                                                       6                                         ‘‘(i) one of the persons is a farm labor
                                                                       7                                 contractor, agricultural employer, or agri-
                                                                       8                                 cultural association and the migrant agri-
                                                                       9                                 cultural worker or seasonal agricultural
                                                                     10                                  worker is performing labor for such per-
                                                                     11                                  son;
                                                                     12                                          ‘‘(ii) each such person directly or indi-
                                                                     13                                  rectly benefits or seeks to directly or indi-
                                                                     14                                  rectly benefit from the performance of
                                                                     15                                  labor by the worker; and
                                                                     16                                          ‘‘(iii)(I) each such person exerts ac-
                                                                     17                                  tual direction or control, directly or indi-
                                                                     18                                  rectly, over any material term or condition
                                                                     19                                  of employment of the worker, including
                                                                     20                                  through an intermediary;
                                                                     21                                          ‘‘(II) each such person exerts func-
                                                                     22                                  tional direction or control, directly or indi-
                                                                     23                                  rectly, over any material term or condition
                                                                     24                                  of employment of the worker, including



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                                                                                                                           217
                                                                       1                                         ‘‘(III) each such person is legally ca-
                                                                       2                                 pable, without regard as to whether such
                                                                       3                                 capability is used, of directly or indi-
                                                                       4                                 rectly—
                                                                       5                                                  ‘‘(aa) exerting direction or con-
                                                                       6                                         trol over any material term or condi-
                                                                       7                                         tion of employment of the worker;
                                                                       8                                                  ‘‘(bb) ensuring compliance with
                                                                       9                                         the requirements of this Act with re-
                                                                     10                                          gard to the worker’s performance of
                                                                     11                                          such labor; or
                                                                     12                                                   ‘‘(cc) upholding the rights and
                                                                     13                                          protections of this Act with regard to
                                                                     14                                          the worker’s performance of such
                                                                     15                                          labor; or
                                                                     16                                          ‘‘(IV) based on an act or omission of
                                                                     17                                  the 2 or more persons, the worker reason-
                                                                     18                                  ably believed that each such person was a
                                                                     19                                  farm labor contractor, agricultural em-
                                                                     20                                  ployer, or agricultural association that em-
                                                                     21                                  ployed the worker and the worker did not
                                                                     22                                  have actual knowledge that any of the per-
                                                                     23                                  sons were not the worker’s employer for
                                                                     24                                  purposes of this this Act.



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                                                                       1               ‘‘(3) INTERACTION WITH REGISTRATION REQUIRE-
                                                                       2     MENTS.—Notwithstanding paragraph (2), an agricultural

                                                                       3 employer or agricultural association shall not be subject
                                                                       4 to liability for any violation of title I by a farm labor con-
                                                                       5 tractor.’’.
                                                                       6               (f) DAVIS-BACON ACT.—Subchapter IV of chapter 31
                                                                       7 of title 40, United States Code, as amended by section
                                                                       8 102(f)(5), is further amended by inserting after section
                                                                       9 3144a the following:
                                                                     10 ‘‘§ 3144b. Applicability to multiple employers and re-
                                                                     11                             lated entities

                                                                     12                ‘‘(a) MULTIPLE EMPLOYERS.—
                                                                     13                         ‘‘(1) RULE OF INTERPRETATION.—This sub-
                                                                     14                section—
                                                                     15                                  ‘‘(A) is to be read as an addition to, and
                                                                     16                         an augmentation and expansion of, all relevant
                                                                     17                         judicial and agency interpretations in existence
                                                                     18                         on the date of enactment of the Worker Flexi-
                                                                     19                         bility and Small Business Protection Act of
                                                                     20                         2020 regarding which persons qualify as em-
                                                                     21                         ployers in relation to a given laborer or me-
                                                                     22                         chanic under this subchapter, including in a
                                                                     23                         multiple employer or joint employment struc-
                                                                     24                         ture;



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                                                                       1                                 ‘‘(B) shall not be interpreted by any court
                                                                       2                        or agency as a restriction on, or narrowing of,
                                                                       3                        any such interpretations; and
                                                                       4                                 ‘‘(C) is not a codification of the common
                                                                       5                        law and shall not be interpreted to reflect, or to
                                                                       6                        be limited or restricted by, common law inter-
                                                                       7                        pretations regarding whether a person is an em-
                                                                       8                        ployer of a given laborer or mechanic or wheth-
                                                                       9                        er multiple persons are employers of a laborer
                                                                     10                         or mechanic.
                                                                     11                         ‘‘(2) ADDITIONAL                     MULTIPLE EMPLOYER DE-

                                                                     12                TERMINATIONS.—Two                          or more persons, acting di-
                                                                     13                rectly or indirectly, shall be responsible for the
                                                                     14                rights and protections of this subchapter with re-
                                                                     15                spect to a laborer or mechanic if—
                                                                     16                                  ‘‘(A) one of the persons is a contractor, or
                                                                     17                         subcontractor, for a contract to which this sub-
                                                                     18                         chapter applies and the laborer or mechanic is
                                                                     19                         performing labor under such contract;
                                                                     20                                  ‘‘(B) each such person directly or indi-
                                                                     21                         rectly benefits or seeks to directly or indirectly
                                                                     22                         benefit from the performance of labor by the la-
                                                                     23                         borer or mechanic; and
                                                                     24                                  ‘‘(C)(i) each such person exerts actual di-



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                                                                                                                           220
                                                                       1                        any material term or condition of employment
                                                                       2                        of the laborer or mechanic, including through
                                                                       3                        an intermediary;
                                                                       4                                 ‘‘(ii) each such person exerts functional di-
                                                                       5                        rection or control, directly or indirectly, over
                                                                       6                        any material term or condition of employment
                                                                       7                        of the laborer or mechanic, including through
                                                                       8                        an intermediary;
                                                                       9                                 ‘‘(iii) each such person is legally capable,
                                                                     10                         without regard as to whether such capability is
                                                                     11                         used, of directly or indirectly—
                                                                     12                                          ‘‘(I) exerting direction or control over
                                                                     13                                  any material term or condition of employ-
                                                                     14                                  ment of the laborer or mechanic;
                                                                     15                                          ‘‘(II) ensuring compliance with the re-
                                                                     16                                  quirements of this subchapter with regard
                                                                     17                                  to the laborer or mechanic’s performance
                                                                     18                                  of such labor; or
                                                                     19                                          ‘‘(III) upholding the rights and pro-
                                                                     20                                  tections of this subchapter with regard to
                                                                     21                                  the laborer or mechanic’s performance of
                                                                     22                                  such labor; or
                                                                     23                                  ‘‘(iv) based on an act or omission of the 2
                                                                     24                         or more persons, the laborer or mechanic rea-



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                                                                                                                           221
                                                                       1                        borer or mechanic’s employers and the laborer
                                                                       2                        or mechanic did not have actual knowledge that
                                                                       3                        any of the persons were not the laborer or me-
                                                                       4                        chanic’s employer under this subchapter.’’.
                                                                       5               (g) MCNAMARA-O’HARA SERVICE CONTRACT ACT.—
                                                                       6 Chapter 67 of title 41, United States Code, is amended
                                                                       7 by inserting after section 6701 the following:
                                                                       8 ‘‘§ 6701a. Applicability to multiple employers and re-
                                                                       9                            lated entities

                                                                     10                ‘‘(a) MULTIPLE EMPLOYERS.—
                                                                     11                         ‘‘(1) RULE OF INTERPRETATION.—This sub-
                                                                     12                section—
                                                                     13                                  ‘‘(A) is to be read as an addition to, and
                                                                     14                         an augmentation and expansion of, all relevant
                                                                     15                         judicial and agency interpretations in existence
                                                                     16                         on the date of enactment of the Worker Flexi-
                                                                     17                         bility and Small Business Protection Act of
                                                                     18                         2020 regarding which persons qualify as em-
                                                                     19                         ployers in relation to a given service employee
                                                                     20                         under this chapter, including in a multiple em-
                                                                     21                         ployer or joint employment structure;
                                                                     22                                  ‘‘(B) shall not be interpreted by any court
                                                                     23                         or agency as a restriction on, or narrowing of,
                                                                     24                         any such interpretations; and



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                                                                       1                                 ‘‘(C) is not a codification of the common
                                                                       2                        law and shall not be interpreted to reflect, or to
                                                                       3                        be limited or restricted by, common law inter-
                                                                       4                        pretations regarding whether a person is an em-
                                                                       5                        ployer of a given service employee or whether
                                                                       6                        multiple persons are employers of a service em-
                                                                       7                        ployee.
                                                                       8                        ‘‘(2) ADDITIONAL                     MULTIPLE EMPLOYER DE-

                                                                       9               TERMINATIONS.—Two                          or more persons, acting di-
                                                                     10                rectly or indirectly, shall be responsible for the
                                                                     11                rights and protections of this chapter with respect to
                                                                     12                a service employee if—
                                                                     13                                  ‘‘(A) one of the persons is a contractor, or
                                                                     14                         subcontractor, for a contract to which this
                                                                     15                         chapter applies and the service employee is per-
                                                                     16                         forming labor under such contract;
                                                                     17                                  ‘‘(B) each such person directly or indi-
                                                                     18                         rectly benefits or seeks to directly or indirectly
                                                                     19                         benefit from the performance of labor by the
                                                                     20                         service employee; and
                                                                     21                                  ‘‘(C)(i) each such person exerts actual di-
                                                                     22                         rection or control, directly or indirectly, over
                                                                     23                         any material term or condition of employment
                                                                     24                         of the service employee, including through an



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                                                                     25                         intermediary;


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                                                                                                                           223
                                                                       1                                 ‘‘(ii) each such person exerts functional di-
                                                                       2                        rection or control, directly or indirectly, over
                                                                       3                        any material term or condition of employment
                                                                       4                        of the service employee, including through an
                                                                       5                        intermediary;
                                                                       6                                 ‘‘(iii) each such person is legally capable,
                                                                       7                        without regard as to whether such capability is
                                                                       8                        used, of directly or indirectly—
                                                                       9                                         ‘‘(I) exerting direction or control over
                                                                     10                                  any material term or condition of employ-
                                                                     11                                  ment of the service employee;
                                                                     12                                          ‘‘(II) ensuring compliance with the re-
                                                                     13                                  quirements of this chapter with regard to
                                                                     14                                  the service employee’s performance of such
                                                                     15                                  labor; or
                                                                     16                                          ‘‘(III) upholding the rights and pro-
                                                                     17                                  tections of this chapter with regard to the
                                                                     18                                  service employee’s performance of such
                                                                     19                                  labor; or
                                                                     20                                  ‘‘(iv) based on an act or omission of the 2
                                                                     21                         or more persons, the service employee reason-
                                                                     22                         ably believed that such persons were the service
                                                                     23                         employee’s employers and the service employee
                                                                     24                         did not have actual knowledge that any of the



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                                                                                                                           224
                                                                       1                        persons were not the service employee’s em-
                                                                       2                        ployer under this chapter.’’.
                                                                       3               (h) WALSH-HEALEY PUBLIC CONTRACTS ACT.—
                                                                       4 Chapter 65 of title 41, United States Code, is amended
                                                                       5 by inserting after section 6501a the following:
                                                                       6 ‘‘§ 6501b. Applicability to multiple employers and re-
                                                                       7                            lated entities

                                                                       8               ‘‘(a) MULTIPLE EMPLOYERS.—
                                                                       9                        ‘‘(1) RULE OF INTERPRETATION.—This sub-
                                                                     10                section—
                                                                     11                                  ‘‘(A) is to be read as an addition to, and
                                                                     12                         an augmentation and expansion of, all relevant
                                                                     13                         judicial and agency interpretations in existence
                                                                     14                         on the date of enactment of the Worker Flexi-
                                                                     15                         bility and Small Business Protection Act of
                                                                     16                         2020 regarding which persons qualify as em-
                                                                     17                         ployers in relation to a given individual per-
                                                                     18                         forming labor in the manufacture or furnishing
                                                                     19                         of materials, supplies, articles, or equipment
                                                                     20                         under a contract subject to this chapter, includ-
                                                                     21                         ing in a multiple employer or joint employment
                                                                     22                         structure;
                                                                     23                                  ‘‘(B) shall not be interpreted by any court
                                                                     24                         or agency as a restriction on, or narrowing of,



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                                                                       1                                 ‘‘(C) is not a codification of the common
                                                                       2                        law and shall not be interpreted to reflect, or to
                                                                       3                        be limited or restricted by, common law inter-
                                                                       4                        pretations regarding whether a person is an em-
                                                                       5                        ployer of an individual described in subpara-
                                                                       6                        graph (A) or whether multiple persons are em-
                                                                       7                        ployers of such individual.
                                                                       8                        ‘‘(2) ADDITIONAL                     MULTIPLE EMPLOYER DE-

                                                                       9               TERMINATIONS.—Two                          or more persons, acting di-
                                                                     10                rectly or indirectly, shall be responsible for the
                                                                     11                rights and protections of this chapter with respect to
                                                                     12                an individual if—
                                                                     13                                  ‘‘(A) one of the persons is a contractor for
                                                                     14                         a contract to which this chapter applies and the
                                                                     15                         individual is performing labor in the manufac-
                                                                     16                         ture or furnishing of materials, supplies, arti-
                                                                     17                         cles, or equipment under the contract;
                                                                     18                                  ‘‘(B) each such person directly or indi-
                                                                     19                         rectly benefits or seeks to directly or indirectly
                                                                     20                         benefit from such performance of labor by the
                                                                     21                         individual; and
                                                                     22                                  ‘‘(C)(i) each such person exerts actual di-
                                                                     23                         rection or control, directly or indirectly, over
                                                                     24                         any material term or condition of employment



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                                                                     25                         of the individual;


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                                                                                                                           226
                                                                       1                                 ‘‘(ii) each such person exerts functional di-
                                                                       2                        rection or control, directly or indirectly, over
                                                                       3                        any material term or condition of employment
                                                                       4                        of the individual, including through an inter-
                                                                       5                        mediary;
                                                                       6                                 ‘‘(iii) each such person is legally capable,
                                                                       7                        without regard as to whether such capability is
                                                                       8                        used, of directly or indirectly—
                                                                       9                                         ‘‘(I) exerting direction or control over
                                                                     10                                  any material term or condition of employ-
                                                                     11                                  ment of the individual;
                                                                     12                                          ‘‘(II) ensuring compliance with the re-
                                                                     13                                  quirements of this chapter with regard to
                                                                     14                                  the individual’s performance of such labor;
                                                                     15                                  or
                                                                     16                                          ‘‘(III) upholding the rights and pro-
                                                                     17                                  tections of this chapter with regard to the
                                                                     18                                  individual’s performance of such labor; or
                                                                     19                                  ‘‘(iv) based on an act or omission of the 2
                                                                     20                         or more persons, the individual reasonably be-
                                                                     21                         lieved that such persons were the individual’s
                                                                     22                         employers and the individual did not have ac-
                                                                     23                         tual knowledge that any of the persons were not
                                                                     24                         the individual’s employer under this chapter.’’.



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                                                                       1               (i) FAMILY AND MEDICAL LEAVE ACT OF 1993.—
                                                                       2 Section 101(4) of the Family and Medical Leave Act of
                                                                       3 1993 (29 U.S.C. 2611(4)), as amended by section
                                                                       4 102(h)(3), is further amended by adding at the end the
                                                                       5 following:
                                                                       6                                 ‘‘(D) MULTIPLE EMPLOYERS.—
                                                                       7                                         ‘‘(i) RULE                 OF     INTERPRETATION.—

                                                                       8                                 This subparagraph—
                                                                       9                                                  ‘‘(I) is to be read as an addition
                                                                     10                                          to, and an augmentation and expan-
                                                                     11                                          sion of, all relevant judicial and agen-
                                                                     12                                          cy interpretations in existence on the
                                                                     13                                          date of enactment of the Worker
                                                                     14                                          Flexibility and Small Business Protec-
                                                                     15                                          tion Act of 2020 regarding which per-
                                                                     16                                          sons qualify as employers in relation
                                                                     17                                          to a given employee under this Act,
                                                                     18                                          including in a multiple employer or
                                                                     19                                          joint employment structure;
                                                                     20                                                   ‘‘(II) shall not be interpreted by
                                                                     21                                          any court or agency as a restriction
                                                                     22                                          on, or narrowing of, any such inter-
                                                                     23                                          pretations; and
                                                                     24                                                   ‘‘(III) is not a codification of the



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                                                                     25                                          common law and shall not be inter-


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                                                                       1                                         preted to reflect, or to be limited or
                                                                       2                                         restricted by, common law interpreta-
                                                                       3                                         tions regarding whether a person is
                                                                       4                                         an employer of a given employee or
                                                                       5                                         whether multiple persons are employ-
                                                                       6                                         ers of a given employee.
                                                                       7                                         ‘‘(ii) IN GENERAL.—Two or more per-
                                                                       8                                 sons shall be employers with respect to an
                                                                       9                                 employee if each such person individually,
                                                                     10                                  acting directly or indirectly, is an em-
                                                                     11                                  ployer, based on and in accordance with
                                                                     12                                  the meaning given the term ‘employer’
                                                                     13                                  under subparagraphs (A) and (B) of this
                                                                     14                                  paragraph, and the definitions of ‘employ’
                                                                     15                                  and ‘employee’ under paragraph (3).
                                                                     16                                          ‘‘(iii)        ADDITIONAL                 MULTIPLE     EM-

                                                                     17                                  PLOYER                   DETERMINATIONS.—Notwith-

                                                                     18                                  standing clause (ii), 2 or more persons
                                                                     19                                  shall be employers, acting directly or indi-
                                                                     20                                  rectly, with respect to an employee if—
                                                                     21                                                   ‘‘(I) each such person directly or
                                                                     22                                          indirectly benefits or seeks to directly
                                                                     23                                          or indirectly benefit from the perform-
                                                                     24                                          ance of labor by an employee; and



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                                                                       1                                                  ‘‘(II)(aa) each such person exerts
                                                                       2                                         actual direction or control, directly or
                                                                       3                                         indirectly, over any material term or
                                                                       4                                         condition of employment of the em-
                                                                       5                                         ployee, including through an inter-
                                                                       6                                         mediary;
                                                                       7                                                  ‘‘(bb) each such person exerts
                                                                       8                                         functional direction or control, directly
                                                                       9                                         or indirectly, over any material term
                                                                     10                                          or condition of employment of the em-
                                                                     11                                          ployee, including through an inter-
                                                                     12                                          mediary;
                                                                     13                                                   ‘‘(cc) each such person is legally
                                                                     14                                          capable, without regard as to whether
                                                                     15                                          such capability is used, of directly or
                                                                     16                                          indirectly—
                                                                     17                                                            ‘‘(AA) exerting direction or
                                                                     18                                                   control over any material term or
                                                                     19                                                   condition of employment of the
                                                                     20                                                   employee;
                                                                     21                                                            ‘‘(BB) ensuring compliance
                                                                     22                                                   with the requirements of this Act
                                                                     23                                                   with regard to the employee; or




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                                                                       1                                                           ‘‘(CC) upholding the rights
                                                                       2                                                  and protections of this Act with
                                                                       3                                                  regard to the employee; or
                                                                       4                                                  ‘‘(dd) based on an act or omis-
                                                                       5                                         sion of the 2 or more persons, the em-
                                                                       6                                         ployee reasonably believed that such
                                                                       7                                         persons were the employee’s employ-
                                                                       8                                         ers and the employee did not have ac-
                                                                       9                                         tual knowledge that any of the per-
                                                                     10                                          sons were not the employee’s employer
                                                                     11                                          under this Act.’’.
                                                                     12                (j) FEDERAL UNEMPLOYMENT TAX ACT (FUTA).—
                                                                     13                         (1) IN GENERAL.—Section 3306(w) of the In-
                                                                     14                ternal Revenue Code of 1986, as added by section
                                                                     15                102(j), is amended by adding at the end the fol-
                                                                     16                lowing new paragraph:
                                                                     17                         ‘‘(3) Paragraph (5) of section 3(d) of such
                                                                     18                Act.’’.
                                                                     19                         (2) EFFECTIVE DATE.—The amendment made
                                                                     20                by paragraph (1) shall apply to services rendered on
                                                                     21                or after January 1, 2022.
                                                                     22      SEC. 202. MASSIVE CORPORATIONS.

                                                                     23                (a) JOINT RESPONSIBILITY FOR ALL CORPORATE
                                                                     24 FAMILY EMPLOYEES.—



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                                                                       1                        (1) FAIR LABOR STANDARDS ACT OF 1938.—
                                                                       2               Section 3(d) of the Fair Labor Standards Act of
                                                                       3               1938 (29 U.S.C. 203(d)), as amended by section
                                                                       4               201(a), is further amended by adding at the end the
                                                                       5               following:
                                                                       6                        ‘‘(6) SUBSIDIARIES.—An employer shall also be
                                                                       7               responsible for the rights and protections of this Act
                                                                       8               with regard to an employee of a subsidiary of the
                                                                       9               employer, or subsidiary under a subsidiary, in any
                                                                     10                case where the subsidiary is responsible for the
                                                                     11                rights and protections of this Act for the employee.’’.
                                                                     12                         (2) NATIONAL LABOR RELATIONS ACT.—Sec-
                                                                     13                tion 2(2) of the National Labor Relations Act (29
                                                                     14                U.S.C. 152(2)), as amended by section 201(b), is
                                                                     15                further amended by adding at the end the following:
                                                                     16                         ‘‘(D) SUBSIDIARIES.—An employer shall also be
                                                                     17                responsible for the rights and protections of this Act
                                                                     18                with regard to an employee of a subsidiary of the
                                                                     19                employer, or subsidiary under a subsidiary, in any
                                                                     20                case where the subsidiary is responsible for the
                                                                     21                rights and protections of this Act for the employee.’’.
                                                                     22                         (3) OCCUPATIONAL SAFETY AND HEALTH ACT
                                                                     23                OF 1970.—Section 3(5) of the Occupational Safety

                                                                     24                and Health Act of 1970 (29 U.S.C. 652(5)), as



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                                                                                                                           232
                                                                       1               amended by section 201(c), is further amended by
                                                                       2               adding at the end the following:
                                                                       3                                 ‘‘(E) SUBSIDIARIES.—An employer shall
                                                                       4                        also be responsible for the rights and protec-
                                                                       5                        tions of this Act with regard to an employee of
                                                                       6                        a subsidiary of the employer, or subsidiary
                                                                       7                        under a subsidiary, in any case where the sub-
                                                                       8                        sidiary is responsible for the rights and protec-
                                                                       9                        tions of this Act for the employee.’’.
                                                                     10                         (4) FEDERAL MINE SAFETY AND HEALTH ACT
                                                                     11                OF 1977.—Section 4B of the Federal Mine Safety

                                                                     12                and Health Act of 1977, as added by section 201(d),
                                                                     13                is further amended by adding at the end the fol-
                                                                     14                lowing:
                                                                     15                ‘‘(b) SUBSIDIARIES.—An employer shall also be re-
                                                                     16 sponsible for the rights and protections of this Act with
                                                                     17 regard to a miner of a coal or other mine who is an em-
                                                                     18 ployee of a subsidiary of the employer, or subsidiary under
                                                                     19 a subsidiary, in any case where the subsidiary is respon-
                                                                     20 sible for the rights and protections of this Act for the
                                                                     21 miner.’’.
                                                                     22                         (5) MIGRANT AND SEASONAL AGRICULTURAL
                                                                     23                WORKER PROTECTION ACT.—Section 5(c) of the Mi-

                                                                     24                grant and Seasonal Agricultural Worker Protection



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                                                                     25                Act (29 U.S.C. 1803(c)), as added by section


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                                                                                                                           233
                                                                       1               201(e), is further amended by adding at the end the
                                                                       2               following:
                                                                       3                        ‘‘(4) SUBSIDIARIES.—An entity shall also be re-
                                                                       4               sponsible for the rights and protections of this Act
                                                                       5               with regard to an individual who is a migrant agri-
                                                                       6               cultural worker or seasonal agricultural worker em-
                                                                       7               ployed by a farm labor contractor, agricultural em-
                                                                       8               ployer, or agricultural association, that is a sub-
                                                                       9               sidiary of the entity, or a subsidiary under such a
                                                                     10                subsidiary, in any case where the subsidiary is re-
                                                                     11                sponsible for the rights and protections of this Act
                                                                     12                for the migrant agricultural worker or seasonal agri-
                                                                     13                cultural worker.’’.
                                                                     14                         (6) DAVIS-BACON ACT.—Section 3144b of title
                                                                     15                40, United States Code, as added by section 201(f),
                                                                     16                is further amended by adding at the end the fol-
                                                                     17                lowing:
                                                                     18                ‘‘(b) SUBSIDIARIES.—An entity shall also be respon-
                                                                     19 sible for the rights and protections of this subchapter with
                                                                     20 regard to a laborer or mechanic employed by a contractor
                                                                     21 or any subcontractor that is a subsidiary of the entity,
                                                                     22 or a subsidiary under such a subsidiary, in any case where
                                                                     23 the subsidiary is responsible for the rights and protections
                                                                     24 of this subchapter for the laborer or mechanic.’’.



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                                                                       1                        (7) MCNAMARA-O’HARA                                SERVICE              CONTRACT

                                                                       2               ACT.—Section                  6701a of title 41, United States
                                                                       3               Code, as added by section 201(g), is further amend-
                                                                       4               ed by adding at the end the following:
                                                                       5               ‘‘(b) SUBSIDIARIES.—An entity shall also be respon-
                                                                       6 sible for the rights and protections of this chapter with
                                                                       7 regard to a service employee of a contractor that is a sub-
                                                                       8 sidiary of the entity, or a subsidiary under such a sub-
                                                                       9 sidiary, in any case where the subsidiary is responsible for
                                                                     10 the rights and protections of this chapter for the service
                                                                     11 employee.’’.
                                                                     12                         (8) WALSH-HEALEY PUBLIC CONTRACTS ACT.—
                                                                     13                Section 6501b of title 41, United States Code, as
                                                                     14                added by section 201(h), is further amended by add-
                                                                     15                ing at the end the following:
                                                                     16                ‘‘(b) SUBSIDIARIES.—An entity shall also be respon-
                                                                     17 sible for the rights and protections of this chapter with
                                                                     18 regard to an individual employed by a contractor that is
                                                                     19 a subsidiary of the entity, or a subsidiary under such a
                                                                     20 subsidiary, in any case where the subsidiary is responsible
                                                                     21 for the rights and protections of this chapter for the indi-
                                                                     22 vidual.’’.
                                                                     23                         (9) FAMILY                AND        MEDICAL              LEAVE          ACT   OF

                                                                     24                1993.—Section 101(4) of the Family and Medical



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                                                                     25                Leave Act of 1993 (20 U.S.C. 2611(4)), as amended


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                                                                                                                           235
                                                                       1               by section 201(i), is further amended by adding at
                                                                       2               the end the following:
                                                                       3                                 ‘‘(E) SUBSIDIARIES.—An employer shall
                                                                       4                        also be responsible for the rights and protec-
                                                                       5                        tions of this Act with regard to an employee of
                                                                       6                        a subsidiary of the employer, or subsidiary
                                                                       7                        under a subsidiary, in any case where the sub-
                                                                       8                        sidiary is responsible for the rights and protec-
                                                                       9                        tions of this Act for the employee.’’.
                                                                     10                         (10)        FEDERAL               UNEMPLOYMENT                          TAX   ACT

                                                                     11                (FUTA).—

                                                                     12                                  (A) IN GENERAL.—Section 3306(w) of the
                                                                     13                         Internal Revenue Code of 1986, as amended by
                                                                     14                         section 201(j), is amended by adding at the end
                                                                     15                         the following new paragraph:
                                                                     16                         ‘‘(4) Paragraph (6) of section 3(d) of such
                                                                     17                Act.’’.
                                                                     18                                  (B) EFFECTIVE DATE.—The amendment
                                                                     19                         made by subparagraph (A) shall apply to serv-
                                                                     20                         ices rendered on or after January 1, 2022.
                                                                     21                (b) JOINT RESPONSIBILITY AS OWNERS, DIRECTORS,
                                                                     22 OFFICERS, AND MANAGING AGENTS.—
                                                                     23                         (1) FAIR LABOR STANDARDS ACT OF 1938.—
                                                                     24                Section 16 of the Fair Labor Standards Act of 1938



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                                                                     25                (29        U.S.C.             216),         as        amended               by     section


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                                                                                                                           236
                                                                       1               102(a)(8)(C), is further amended by adding at the
                                                                       2               end the following:
                                                                       3               ‘‘(g) OWNERS, DIRECTORS, OFFICERS, AND MAN-
                                                                       4     AGING AGENTS.—

                                                                       5                        ‘‘(1) IN GENERAL.—In any action or proceeding
                                                                       6               for a violation of this Act, the Secretary or court
                                                                       7               may also assess a civil penalty for such violation
                                                                       8               against an owner, director, officer, or managing
                                                                       9               agent of the employer if the Secretary or court de-
                                                                     10                termines, based on the particular facts and cir-
                                                                     11                cumstances presented, that personal liability for the
                                                                     12                violation is warranted because the owner, director,
                                                                     13                officer, or managing agent—
                                                                     14                                  ‘‘(A) directed or committed the violation;
                                                                     15                                  ‘‘(B) established a policy that led to such
                                                                     16                         a violation; or
                                                                     17                                  ‘‘(C) had actual or constructive knowledge
                                                                     18                         of the violation, had the authority to prevent
                                                                     19                         the violation, and failed to prevent the violation.
                                                                     20                         ‘‘(2) AMOUNT OF CIVIL PENALTY.—The amount
                                                                     21                of, or range for, a civil penalty for a violation under
                                                                     22                paragraph (1) shall, in any case where a similar civil
                                                                     23                penalty against the employer is established by law,
                                                                     24                be the amount or range for the civil penalty that



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                                                                       1               may be assessed against the employer for such viola-
                                                                       2               tion.’’.
                                                                       3                        (2) NATIONAL LABOR RELATIONS ACT.—Sec-
                                                                       4               tion 12 of the National Labor Relations Act (29
                                                                       5               U.S.C. 162), as amended by section 102(b)(7)(B), is
                                                                       6               further amended by adding at the end the following:
                                                                       7               ‘‘(e) OWNERS, DIRECTORS, OFFICERS, AND MAN-
                                                                       8     AGING AGENTS.—

                                                                       9                        ‘‘(1) IN GENERAL.—In any action or proceeding
                                                                     10                for a violation of this Act, the Board or court may
                                                                     11                also assess a civil penalty for such violation against
                                                                     12                an owner, director, officer, or managing agent of the
                                                                     13                employer if the Board or court determines, based on
                                                                     14                the particular facts and circumstances presented,
                                                                     15                that personal liability for the violation is warranted
                                                                     16                because the owner, director, officer, or managing
                                                                     17                agent—
                                                                     18                                  ‘‘(A) directed or committed the violation;
                                                                     19                                  ‘‘(B) established a policy that led to such
                                                                     20                         a violation; or
                                                                     21                                  ‘‘(C) had actual or constructive knowledge
                                                                     22                         of the violation, had the authority to prevent
                                                                     23                         the violation, and failed to prevent the violation.
                                                                     24                         ‘‘(2) AMOUNT OF CIVIL PENALTY.—The amount



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                                                                       1               paragraph (1) shall, in any case where a similar civil
                                                                       2               penalty against the employer is established by law,
                                                                       3               be the amount or range for the civil penalty that
                                                                       4               may be assessed against the employer for such viola-
                                                                       5               tion.’’.
                                                                       6                        (3) OCCUPATIONAL SAFETY AND HEALTH ACT
                                                                       7               OF      1970.—Section 17 of the Occupational Safety
                                                                       8               and Health Act of 1970 (29 U.S.C. 666), as amend-
                                                                       9               ed by section 102(c)(7)(B), is amended by inserting
                                                                     10                after subsection (k) the following:
                                                                     11                ‘‘(m) OWNERS, DIRECTORS, OFFICERS, AND MAN-
                                                                     12      AGING AGENTS.—

                                                                     13                         ‘‘(1) IN GENERAL.—In any action or proceeding
                                                                     14                for a violation of this Act, including any standard,
                                                                     15                rule, regulation, or order promulgated pursuant to
                                                                     16                this Act, the Secretary or court may also assess a
                                                                     17                civil penalty for such violation against an owner, di-
                                                                     18                rector, officer, or managing agent of the employer if
                                                                     19                the Secretary or court determines, based on the par-
                                                                     20                ticular facts and circumstances presented, that per-
                                                                     21                sonal liability for the violation is warranted because
                                                                     22                the owner, director, officer, or managing agent—
                                                                     23                                  ‘‘(A) directed or committed the violation;
                                                                     24                                  ‘‘(B) established a policy that led to such



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                                                                     25                         a violation; or


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                                                                       1                                 ‘‘(C) had actual or constructive knowledge
                                                                       2                        of the violation, had the authority to prevent
                                                                       3                        the violation, and failed to prevent the violation.
                                                                       4                        ‘‘(2) AMOUNT OF CIVIL PENALTY.—The amount
                                                                       5               of, or range for, a civil penalty for a violation under
                                                                       6               paragraph (1) shall, in any case where a similar civil
                                                                       7               penalty against the employer is established by law,
                                                                       8               be the amount or range for the civil penalty that
                                                                       9               may be assessed against the employer for such viola-
                                                                     10                tion.’’.
                                                                     11                         (4) FEDERAL MINE SAFETY AND HEALTH ACT
                                                                     12                OF 1977.—

                                                                     13                                  (A) IN GENERAL.—Title I of the Federal
                                                                     14                         Mine Safety and Health Act of 1977 (30
                                                                     15                         U.S.C. 820), as amended by section 102(d), is
                                                                     16                         further amended by adding at the end the fol-
                                                                     17                         lowing:
                                                                     18      ‘‘SEC. 118. LIABILITY OF OWNERS, DIRECTORS, OFFICERS,

                                                                     19                              MANAGING                   AGENTS,         AND         LARGE       SHARE-

                                                                     20                              HOLDERS; INDEMNIFICATION.

                                                                     21                ‘‘(a) OWNERS, DIRECTORS, OFFICERS, AND MAN-
                                                                     22      AGING AGENTS.—

                                                                     23                         ‘‘(1) IN GENERAL.—In any action or proceeding
                                                                     24                for a violation of this Act including any mandatory



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                                                                     25                health or safety standard, rule, order, or regulation


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                                                                                                                           240
                                                                       1               promulgated pursuant to this Act, the Secretary or
                                                                       2               court may also assess a civil penalty against an
                                                                       3               owner, director, officer, or managing agent of the
                                                                       4               operator or employer if the Secretary or court deter-
                                                                       5               mines, based on the particular facts and cir-
                                                                       6               cumstances presented, that personal liability for the
                                                                       7               violation is warranted because the owner, director,
                                                                       8               officer, or managing agent—
                                                                       9                                 ‘‘(A) directed or committed the violation;
                                                                     10                                  ‘‘(B) established a policy that led to such
                                                                     11                         a violation; or
                                                                     12                                  ‘‘(C) had actual or constructive knowledge
                                                                     13                         of the violation, had the authority to prevent
                                                                     14                         the violation, and failed to prevent the violation.
                                                                     15                         ‘‘(2) AMOUNT OF CIVIL PENALTY.—The amount
                                                                     16                of, or range for, a civil penalty for a violation under
                                                                     17                paragraph (1) shall, in any case where a similar civil
                                                                     18                penalty against the employer is established by law,
                                                                     19                be the amount or range for the civil penalty that
                                                                     20                may be assessed against the employer for such viola-
                                                                     21                tion.’’.
                                                                     22                         (5) MIGRANT AND SEASONAL AGRICULTURAL
                                                                     23                WORKER PROTECTION ACT.—Title V of the Migrant

                                                                     24                and Seasonal Agricultural Worker Protection Act



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                                                                     25                (29 U.S.C. 1851 et seq.), as amended by section


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                                                                                                                           241
                                                                       1               102(e)(5)(A), is further amended by inserting after
                                                                       2               section 504 the following:
                                                                       3     ‘‘SEC. 505. LIABILITY OF OWNERS, DIRECTORS, OFFICERS,

                                                                       4                             MANAGING                   AGENTS,         AND         LARGE       SHARE-

                                                                       5                             HOLDERS; INDEMNIFICATION.

                                                                       6               ‘‘(a) CIVIL PENALTY LIABILITY FOR OWNERS, DI-
                                                                       7     RECTORS, OFFICERS, AND MANAGING AGENTS OF FARM

                                                                       8 LABOR CONTRACTORS, AGRICULTURAL EMPLOYERS, OR
                                                                       9 AGRICULTURAL ASSOCIATIONS.—
                                                                     10                         ‘‘(1) IN GENERAL.—In any action or proceeding
                                                                     11                for a violation of this Act, including any regulation
                                                                     12                under this Act, by a farm labor contractor, agricul-
                                                                     13                tural employer, or agricultural association, the Sec-
                                                                     14                retary or court may also assess a civil penalty for
                                                                     15                such violation against an owner, director, officer, or
                                                                     16                managing agent of the farm labor contractor, agri-
                                                                     17                cultural employer, or agricultural association if the
                                                                     18                Secretary or court determines, based on the par-
                                                                     19                ticular facts and circumstances presented, that per-
                                                                     20                sonal liability for the violation is warranted because
                                                                     21                the owner, director, officer, or managing agent—
                                                                     22                                  ‘‘(A) directed or committed the violation;
                                                                     23                                  ‘‘(B) established a policy that led to such
                                                                     24                         a violation; or



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                                                                       1                                 ‘‘(C) had actual or constructive knowledge
                                                                       2                        of the violation, had the authority to prevent
                                                                       3                        the violation, and failed to prevent the violation.
                                                                       4                        ‘‘(2) AMOUNT OF CIVIL PENALTY.—The amount
                                                                       5               of, or range for, a civil penalty for a violation under
                                                                       6               paragraph (1) shall, in any case where a similar civil
                                                                       7               penalty against the employer is established by law,
                                                                       8               be the amount or range for the civil penalty that
                                                                       9               may be assessed against the employer for such viola-
                                                                     10                tion.’’.
                                                                     11                         (6) DAVIS-BACON ACT.—Section 3144c of title
                                                                     12                40, United States Code, as amended by section
                                                                     13                102(f)(6), is further amended by adding at the end
                                                                     14                the following:
                                                                     15                ‘‘(d) CIVIL PENALTY LIABILITY FOR OWNERS, DI-
                                                                     16      RECTORS, OFFICERS, AND MANAGING AGENTS.—

                                                                     17                         ‘‘(1) IN GENERAL.—In any action or proceeding
                                                                     18                for a violation of this subchapter, the Secretary of
                                                                     19                Labor or court may also assess a civil penalty for
                                                                     20                such violation against an owner, director, officer, or
                                                                     21                managing agent of the contractor or subcontractor if
                                                                     22                the Secretary or court determines, based on the par-
                                                                     23                ticular facts and circumstances presented, that per-
                                                                     24                sonal liability for the violation is warranted because



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                                                                     25                the owner, director, officer, or managing agent—


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                                                                       1                                 ‘‘(A) directed or committed the violation;
                                                                       2                                 ‘‘(B) established a policy that led to such
                                                                       3                        a violation; or
                                                                       4                                 ‘‘(C) had actual or constructive knowledge
                                                                       5                        of the violation, had the authority to prevent
                                                                       6                        the violation, and failed to prevent the violation.
                                                                       7                        ‘‘(2) AMOUNT OF CIVIL PENALTY.—The amount
                                                                       8               of, or range for, a civil penalty for a violation under
                                                                       9               paragraph (1) shall, in any case where a similar civil
                                                                     10                penalty against the employer is established by law,
                                                                     11                be the amount or range for the civil penalty that
                                                                     12                may be assessed against the contractor or subcon-
                                                                     13                tractor for such violation.’’.
                                                                     14                         (7) MCNAMARA-O’HARA                                SERVICE              CONTRACT

                                                                     15                ACT.—Chapter 67 of title 41, United States Code, is

                                                                     16                amended—
                                                                     17                                  (A) by redesignating sections 6705, 6706,
                                                                     18                         and 6707 as sections 6706, 6708, and 6709, re-
                                                                     19                         spectively; and
                                                                     20                                  (B) by inserting after section 6706 the fol-
                                                                     21                         lowing:




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                                                                       1 ‘‘§ 6707. Civil penalties assessed against owners, di-
                                                                       2                            rectors, officers, managing agents, and

                                                                       3                            large shareholders; indemnification

                                                                       4               ‘‘(a) CIVIL PENALTY LIABILITY FOR OWNERS, DI-
                                                                       5     RECTORS, OFFICERS, AND MANAGING AGENTS.—

                                                                       6                        ‘‘(1) IN GENERAL.—In any action or proceeding
                                                                       7               for a violation of this chapter, the Secretary or court
                                                                       8               may also assess a civil penalty for such violation
                                                                       9               against an owner, director, officer, or managing
                                                                     10                agent of the contractor if the Secretary or court de-
                                                                     11                termines, based on the particular facts and cir-
                                                                     12                cumstances presented, that personal liability for the
                                                                     13                violation is warranted because the owner, director,
                                                                     14                officer, or managing agent—
                                                                     15                                  ‘‘(A) directed or committed the violation;
                                                                     16                                  ‘‘(B) established a policy that led to such
                                                                     17                         a violation; or
                                                                     18                                  ‘‘(C) had actual or constructive knowledge
                                                                     19                         of the violation, had the authority to prevent
                                                                     20                         the violation, and failed to prevent the violation.
                                                                     21                         ‘‘(2) AMOUNT OF CIVIL PENALTY.—The amount
                                                                     22                of, or range for, a civil penalty for a violation under
                                                                     23                paragraph (1) shall, in any case where a similar civil
                                                                     24                penalty against the employer is established by law,




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                                                                     25                be the amount or range for the civil penalty that


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                                                                                                                           245
                                                                       1               may be assessed against the contractor for such vio-
                                                                       2               lation.’’.
                                                                       3                        (8) WALSH-HEALEY PUBLIC CONTRACTS ACT.—
                                                                       4               Section 6506b of title 41, United States Code, as
                                                                       5               amended by section 102(g)(6), is further amended
                                                                       6               by adding at the end the following:
                                                                       7               ‘‘(d) CIVIL PENALTIES ASSESSED AGAINST OWNERS,
                                                                       8 DIRECTORS, OFFICERS, MANAGING AGENTS, AND LARGE
                                                                       9 SHAREHOLDERS.—
                                                                     10                         ‘‘(1) IN GENERAL.—In any action or proceeding
                                                                     11                for a violation of this chapter, the Secretary or court
                                                                     12                may also assess a civil penalty for such violation
                                                                     13                against an owner, director, officer, or managing
                                                                     14                agent of the contractor if the Secretary or court de-
                                                                     15                termines, based on the particular facts and cir-
                                                                     16                cumstances presented, that personal liability for the
                                                                     17                violation is warranted because the owner, director,
                                                                     18                officer, or managing agent—
                                                                     19                                  ‘‘(A) directed or committed the violation;
                                                                     20                                  ‘‘(B) established a policy that led to such
                                                                     21                         a violation; or
                                                                     22                                  ‘‘(C) had actual or constructive knowledge
                                                                     23                         of the violation, had the authority to prevent
                                                                     24                         the violation, and failed to prevent the violation.



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                                                                       1                        ‘‘(2) AMOUNT OF CIVIL PENALTY.—The amount
                                                                       2               of, or range for, a civil penalty for a violation under
                                                                       3               paragraph (1) shall, in any case where a similar civil
                                                                       4               penalty against the employer is established by law,
                                                                       5               be the amount or range for the civil penalty that
                                                                       6               may be assessed against the contractor for such vio-
                                                                       7               lation.’’.
                                                                       8                        (9) FAMILY                AND        MEDICAL              LEAVE         ACT   OF

                                                                       9               1993.—Section 107 of the Family and Medical
                                                                     10                Leave Act of 1993 (29 U.S.C. 2617) is amended—
                                                                     11                                  (A) by redesignating subsections (e) and
                                                                     12                         (f) as subsections (i) and (j), respectively; and
                                                                     13                                  (B) by inserting after subsection (d) the
                                                                     14                         following:
                                                                     15                ‘‘(e) OWNERS, DIRECTORS, OFFICERS, AND MAN-
                                                                     16      AGING AGENTS.—

                                                                     17                         ‘‘(1) IN GENERAL.—In any action or proceeding
                                                                     18                for a violation of this Act, the Secretary or court
                                                                     19                may also assess a civil penalty for such violation
                                                                     20                against an owner, director, officer, or managing
                                                                     21                agent of the employer if the Secretary or court de-
                                                                     22                termines, based on the particular facts and cir-
                                                                     23                cumstances presented, that personal liability for the
                                                                     24                violation is warranted because the owner, director,



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                                                                     25                officer, or managing agent—


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                                                                       1                                 ‘‘(A) directed or committed the violation;
                                                                       2                                 ‘‘(B) established a policy that led to such
                                                                       3                        a violation; or
                                                                       4                                 ‘‘(C) had actual or constructive knowledge
                                                                       5                        of the violation, had the authority to prevent
                                                                       6                        the violation, and failed to prevent the violation.
                                                                       7                        ‘‘(2) AMOUNT OF CIVIL PENALTY.—The amount
                                                                       8               of, or range for, a civil penalty for a violation under
                                                                       9               paragraph (1) shall, in any case where a similar civil
                                                                     10                penalty against the employer is established by law,
                                                                     11                be the amount or range for the civil penalty that
                                                                     12                may be assessed against the employer for such viola-
                                                                     13                tion.’’.
                                                                     14                (c) RESPONSIBILITIES                          OF       10 LARGEST SHARE-
                                                                     15      HOLDERS.—

                                                                     16                         (1) FAIR LABOR STANDARDS ACT OF 1938.—
                                                                     17                Section 16 of the Fair Labor Standards Act of 1938
                                                                     18                (20 U.S.C. 216), as amended by subsection (b)(1),
                                                                     19                is further amended by adding at the end the fol-
                                                                     20                lowing:
                                                                     21                ‘‘(h) JOINT LIABILITY OF LARGE SHAREHOLDERS.—
                                                                     22                         ‘‘(1) IN GENERAL.—In any action or proceeding
                                                                     23                for a violation of this Act, the 10 largest share-
                                                                     24                holders of an employer, as determined by the fair



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                                                                     25                value for their beneficial interest as of the beginning


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                                                                                                                           248
                                                                       1               of the period during which the violation occurred,
                                                                       2               shall—
                                                                       3                                 ‘‘(A) jointly and severally be personally lia-
                                                                       4                        ble for all violations of this Act and for all dam-
                                                                       5                        ages awarded and civil penalties assessed for
                                                                       6                        violations of this Act; and
                                                                       7                                 ‘‘(B) notwithstanding subparagraph (A),
                                                                       8                        be personally responsible for 10 percent of any
                                                                       9                        damages, civil penalties, or other restitution or
                                                                     10                         fees assessed against the employer for the viola-
                                                                     11                         tions, with the employer responsible for not
                                                                     12                         more than 90 percent.
                                                                     13                         ‘‘(2) NO REIMBURSEMENT.—An employer may
                                                                     14                not refund in any way any amounts paid by a share-
                                                                     15                holder under paragraph (1).’’.
                                                                     16                         (2) NATIONAL LABOR RELATIONS ACT.—Sec-
                                                                     17                tion 12 of the National Labor Relations Act (29
                                                                     18                U.S.C. 162), as amended by subsection (b)(2), is
                                                                     19                further amended by adding at the end the following:
                                                                     20                ‘‘(f) JOINT LIABILITY OF LARGE SHAREHOLDERS.—
                                                                     21                         ‘‘(1) IN GENERAL.—In any action or proceeding
                                                                     22                for a violation of this Act, the 10 largest share-
                                                                     23                holders of an employer, as determined by the fair
                                                                     24                value for their beneficial interest as of the beginning



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                                                                                                                           249
                                                                       1               of the period during which the violation occurred,
                                                                       2               shall—
                                                                       3                                 ‘‘(A) jointly and severally be personally lia-
                                                                       4                        ble for all violations of this Act and for all dam-
                                                                       5                        ages awarded and civil penalties assessed for
                                                                       6                        violations of this Act; and
                                                                       7                                 ‘‘(B) notwithstanding subparagraph (A),
                                                                       8                        be personally responsible for 10 percent of any
                                                                       9                        damages, civil penalties, or other restitution or
                                                                     10                         fees assessed against the employer for the viola-
                                                                     11                         tions, with the employer responsible for not
                                                                     12                         more than 90 percent.
                                                                     13                         ‘‘(2) NO REIMBURSEMENT.—An employer may
                                                                     14                not refund in any way any amounts paid by a share-
                                                                     15                holder under paragraph (1).’’.
                                                                     16                         (3) OCCUPATIONAL SAFETY AND HEALTH ACT
                                                                     17                OF      1970.—Section 17 of the Occupational Safety
                                                                     18                and Health Act of 1970 (29 U.S.C. 666), as amend-
                                                                     19                ed by subsection (b)(3), is further amended by add-
                                                                     20                ing at the end the following:
                                                                     21                ‘‘(n) JOINT LIABILITY OF LARGE SHAREHOLDERS.—
                                                                     22                         ‘‘(1) IN GENERAL.—In any action or proceeding
                                                                     23                for a violation of this Act, including any standard,
                                                                     24                rule, regulation, or order promulgated pursuant to



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                                                                     25                this Act, the 10 largest shareholders of an employer,


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                                                                                                                           250
                                                                       1               as determined by the fair value for their beneficial
                                                                       2               interest as of the beginning of the period during
                                                                       3               which the violation occurred, shall—
                                                                       4                                 ‘‘(A) jointly and severally be personally lia-
                                                                       5                        ble for all violations of this Act and for all dam-
                                                                       6                        ages awarded and civil penalties assessed for
                                                                       7                        violations of this Act; and
                                                                       8                                 ‘‘(B) notwithstanding subparagraph (A),
                                                                       9                        be personally responsible for 10 percent of any
                                                                     10                         damages, civil penalties, or other restitution or
                                                                     11                         fees assessed against the employer for the viola-
                                                                     12                         tions, with the employer responsible for not
                                                                     13                         more than 90 percent.
                                                                     14                         ‘‘(2) NO REIMBURSEMENT.—An employer may
                                                                     15                not refund in any way any amounts paid by a share-
                                                                     16                holder under paragraph (1).’’.
                                                                     17                         (4) FEDERAL MINE SAFETY AND HEALTH ACT
                                                                     18                OF 1977.—Section 118 of the Federal Mine Safety

                                                                     19                and Health Act of 1977, as added by subsection
                                                                     20                (b)(4), is further amended by adding at the end the
                                                                     21                following:
                                                                     22                ‘‘(b) JOINT LIABILITY OF LARGE SHAREHOLDERS.—
                                                                     23                         ‘‘(1) IN GENERAL.—In any action or proceeding
                                                                     24                for a violation of this Act, including any mandatory



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                                                                     25                health or safety standard, rule, order, or regulation


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                                                                                                                           251
                                                                       1               promulgated pursuant to this Act, the 10 largest
                                                                       2               shareholders of an operator of a coal or other mine,
                                                                       3               as determined by the fair value for their beneficial
                                                                       4               interest as of the beginning of the period during
                                                                       5               which such violation occurred, shall—
                                                                       6                                 ‘‘(A) jointly and severally be personally lia-
                                                                       7                        ble for all such violations, and for all damages
                                                                       8                        awarded and civil penalties assessed for such
                                                                       9                        violations; and
                                                                     10                                  ‘‘(B) notwithstanding subparagraph (A),
                                                                     11                         be personally responsible for 10 percent of any
                                                                     12                         damages, civil penalties, or other restitution or
                                                                     13                         fees assessed against the operator for all viola-
                                                                     14                         tions, with the operator responsible for not
                                                                     15                         more than 90 percent.
                                                                     16                         ‘‘(2) NO REIMBURSEMENT.—An operator may
                                                                     17                not refund in any way any amounts paid by a share-
                                                                     18                holder under paragraph (1).’’.
                                                                     19                         (5) MIGRANT AND SEASONAL AGRICULTURAL
                                                                     20                WORKER PROTECTION ACT.—Section 505 of the Mi-

                                                                     21                grant and Seasonal Agricultural Worker Protection
                                                                     22                Act, as added by subsection (b)(5), is further
                                                                     23                amended by adding at the end the following:
                                                                     24                ‘‘(b) JOINT LIABILITY OF LARGE SHAREHOLDERS.—



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                                                                                                                           252
                                                                       1                        ‘‘(1) IN GENERAL.—In any action or proceeding
                                                                       2               for a violation of this Act, including any regulation
                                                                       3               under this Act, the 10 largest shareholders of a farm
                                                                       4               labor contractor, agricultural employer, or agricul-
                                                                       5               tural association, as determined by the fair value for
                                                                       6               their beneficial interest as of the beginning of the
                                                                       7               period during which such violation occurred, shall—
                                                                       8                                 ‘‘(A) jointly and severally be personally lia-
                                                                       9                        ble for all violations of this Act, including any
                                                                     10                         regulation under this Act, and for all damages
                                                                     11                         awarded and civil penalties assessed for such
                                                                     12                         violations; and
                                                                     13                                  ‘‘(B) notwithstanding subparagraph (A),
                                                                     14                         be personally responsible for 10 percent of any
                                                                     15                         damages, civil penalties, or other restitution or
                                                                     16                         fees assessed against the farm labor contractor,
                                                                     17                         agricultural employer, or agricultural associa-
                                                                     18                         tion for all violations, with the farm labor con-
                                                                     19                         tractor, agricultural employer, or agricultural
                                                                     20                         association (respectively) responsible for not
                                                                     21                         more than 90 percent.
                                                                     22                         ‘‘(2) NO REIMBURSEMENT.—A farm labor con-
                                                                     23                tractor, agricultural employer, or agricultural asso-
                                                                     24                ciation may not refund in any way any amounts paid



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                                                                     25                by a shareholder under paragraph (1).’’.


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                                                                                                                           253
                                                                       1                        (6) DAVIS-BACON ACT.—Section 3144c of title
                                                                       2               40, United States Code, as amended by subsection
                                                                       3               (b)(6), is further amended by adding at the end the
                                                                       4               following:
                                                                       5               ‘‘(e) JOINT LIABILITY OF LARGE SHAREHOLDERS.—
                                                                       6                        ‘‘(1) IN GENERAL.—In any action or proceeding
                                                                       7               for a violation of this subchapter, the 10 largest
                                                                       8               shareholders of a contractor or subcontractor, as de-
                                                                       9               termined by the fair value for their beneficial inter-
                                                                     10                est as of the beginning of the period during which
                                                                     11                the violation occurred, shall—
                                                                     12                                  ‘‘(A) jointly and severally be personally lia-
                                                                     13                         ble for all violations of this subchapter, and for
                                                                     14                         all damages awarded and civil penalties as-
                                                                     15                         sessed for violations of this subchapter; and
                                                                     16                                  ‘‘(B) notwithstanding subparagraph (A),
                                                                     17                         be personally responsible for 10 percent of any
                                                                     18                         damages, civil penalties, or other restitution or
                                                                     19                         fees assessed against the contractor or subcon-
                                                                     20                         tractor for the violations, with the contractor or
                                                                     21                         subcontractor responsible for not more than 90
                                                                     22                         percent.
                                                                     23                         ‘‘(2) NO             REIMBURSEMENT.—A                           contractor or
                                                                     24                subcontractor may not refund in any way any



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                                                                                                                           254
                                                                       1               amounts paid by a shareholder under paragraph
                                                                       2               (1).’’.
                                                                       3                        (7) MCNAMARA-O’HARA                                SERVICE              CONTRACT

                                                                       4               ACT.—Section 6707 of title 41, United States Code,

                                                                       5               as amended by subsection (b)(7)(A), is further
                                                                       6               amended by adding at the end the following:
                                                                       7               ‘‘(b) JOINT LIABILITY OF LARGE SHAREHOLDERS.—
                                                                       8                        ‘‘(1) IN GENERAL.—In any action or proceeding
                                                                       9               for a violation of this chapter, the 10 largest share-
                                                                     10                holders of a contractor, as determined by the fair
                                                                     11                value for their beneficial interest as of the beginning
                                                                     12                of the period during which the violation occurred,
                                                                     13                shall—
                                                                     14                                  ‘‘(A) jointly and severally be personally lia-
                                                                     15                         ble for all violations of this chapter, and for all
                                                                     16                         damages awarded and civil penalties assessed
                                                                     17                         for violations of this chapter; and
                                                                     18                                  ‘‘(B) notwithstanding subparagraph (A),
                                                                     19                         be personally responsible for 10 percent of any
                                                                     20                         damages, civil penalties, or other restitution or
                                                                     21                         fees assessed against the contractor for the vio-
                                                                     22                         lations, with the contractor responsible for not
                                                                     23                         more than 90 percent.




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                                                                                                                           255
                                                                       1                        ‘‘(2) NO REIMBURSEMENT.—A contractor may
                                                                       2               not refund in any way any amounts paid by a share-
                                                                       3               holder under paragraph (1).’’.
                                                                       4                        (8) WALSH-HEALEY PUBLIC CONTRACTS ACT.—
                                                                       5               Section 6506b of title 41, United States Code, as
                                                                       6               amended by subsection (b)(8), is further amended by
                                                                       7               adding at the end the following:
                                                                       8               ‘‘(e) JOINT LIABILITY OF LARGE SHAREHOLDERS.—
                                                                       9                        ‘‘(1) IN GENERAL.—In any action or proceeding
                                                                     10                for a violation of this chapter, the 10 largest share-
                                                                     11                holders of a contractor, as determined by the fair
                                                                     12                value for their beneficial interest as of the beginning
                                                                     13                of the period during which the violation occurred,
                                                                     14                shall—
                                                                     15                                  ‘‘(A) jointly and severally be personally lia-
                                                                     16                         ble for all violations of this chapter, and for all
                                                                     17                         damages awarded and civil penalties assessed
                                                                     18                         for violations of this chapter; and
                                                                     19                                  ‘‘(B) notwithstanding subparagraph (A),
                                                                     20                         be personally responsible for 10 percent of any
                                                                     21                         damages, civil penalties, or other restitution or
                                                                     22                         fees assessed against the contractor for the vio-
                                                                     23                         lations, with the contractor responsible for not
                                                                     24                         more than 90 percent.



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                                                                                                                           256
                                                                       1                        ‘‘(2) NO REIMBURSEMENT.—A contractor may
                                                                       2               not refund in any way any amounts paid by a share-
                                                                       3               holder under paragraph (1).’’.
                                                                       4                        (9) FAMILY                AND        MEDICAL              LEAVE         ACT   OF

                                                                       5               1993.—Section 107 of the Family and Medical
                                                                       6               Leave Act of 1993 (29 U.S.C. 2617), as amended by
                                                                       7               subsection (b)(9), is further amended by inserting
                                                                       8               after subsection (e) the following:
                                                                       9               ‘‘(f) JOINT LIABILITY OF LARGE SHAREHOLDERS.—
                                                                     10                         ‘‘(1) IN GENERAL.—In any action or proceeding
                                                                     11                for a violation of this Act, the 10 largest share-
                                                                     12                holders of an employer, as determined by the fair
                                                                     13                value for their beneficial interest as of the beginning
                                                                     14                of the period during which the violation occurred,
                                                                     15                shall—
                                                                     16                                  ‘‘(A) jointly and severally be personally lia-
                                                                     17                         ble for all violations of this Act and for all dam-
                                                                     18                         ages awarded and civil penalties assessed for
                                                                     19                         violations of this Act; and
                                                                     20                                  ‘‘(B) notwithstanding subparagraph (A),
                                                                     21                         be personally responsible for 10 percent of any
                                                                     22                         damages, civil penalties, or other restitution or
                                                                     23                         fees assessed against the employer for the viola-
                                                                     24                         tions, with the employer responsible for not



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                                                                     25                         more than 90 percent.


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                                                                                                                           257
                                                                       1                        ‘‘(2) NO REIMBURSEMENT.—An employer may
                                                                       2               not refund in any way any amounts paid by a share-
                                                                       3               holder under paragraph (1).’’.
                                                                       4     SEC. 203. FRANCHISORS.

                                                                       5               (a) FAIR LABOR STANDARDS ACT OF 1938.—
                                                                       6                        (1) IN GENERAL.—Section 3(d) of the Fair
                                                                       7               Labor Standards Act of 1938 (29 U.S.C. 203(d)), as
                                                                       8               amended by section 202(a)(1), is further amended
                                                                       9               by adding at the end the following:
                                                                     10                         ‘‘(7)       FRANCHISORS                     AND        FRANCHISEES.—A

                                                                     11                franchisor shall also be responsible for the rights
                                                                     12                and protections of this Act with regard to an em-
                                                                     13                ployee, in any case where a franchisee of the
                                                                     14                franchisor is responsible for the rights and protec-
                                                                     15                tions of this Act for the employee.’’.
                                                                     16                         (2) INDEMNIFICATION.—Section 16 of the Fair
                                                                     17                Labor Standards Act of 1938, as amended by sec-
                                                                     18                tion 202(c)(1), is further amended by adding at the
                                                                     19                end the following:
                                                                     20                ‘‘(i) FRANCHISEES AND FRANCHISORS.—
                                                                     21                         ‘‘(1) INDEMNIFICATION BY FRANCHISOR.—An
                                                                     22                employer or entity that is found to be in violation of
                                                                     23                this Act and is a franchisee shall have the right to
                                                                     24                indemnification as described in paragraph (2) from



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                                                                     25                the franchisor, in any case where the violation was—


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                                                                                                                           258
                                                                       1                                 ‘‘(A) at the behest of the franchisor;
                                                                       2                                 ‘‘(B) at the direction of the franchisor;
                                                                       3                                 ‘‘(C) pursuant to any policies, agreements,
                                                                       4                        or contractual obligations emanating from the
                                                                       5                        franchisor; or
                                                                       6                                 ‘‘(D) due to other direct or indirect control
                                                                       7                        or pressure from the franchisor.
                                                                       8                        ‘‘(2) PROCESS FOR AND TYPE OF INDEMNIFICA-
                                                                       9               TION.—Indemnification under paragraph (1)—

                                                                     10                                  ‘‘(A) may be sought by a franchisee in any
                                                                     11                         court of competent jurisdiction; and
                                                                     12                                  ‘‘(B) shall include a full recovery from the
                                                                     13                         franchisor of all compensatory and punitive
                                                                     14                         damages, civil monetary penalties, attorney’s
                                                                     15                         fees, or other amounts required to be paid by
                                                                     16                         the franchisee as a result of the violation of this
                                                                     17                         Act.
                                                                     18                         ‘‘(3) PROHIBITION ON WAIVER.—
                                                                     19                                  ‘‘(A) IN GENERAL.—A franchisor shall not
                                                                     20                         require or otherwise request a franchisee to
                                                                     21                         waive the franchisee’s right to indemnification
                                                                     22                         under this subsection.
                                                                     23                                  ‘‘(B) REMEDY AND CIVIL PENALTY.—If a
                                                                     24                         franchisor violates subparagraph (A)—



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