II 

116TH CONGRESS 

2D SESSION S. 4738 

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 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, Education, 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 provide public transparency on workers’ rights violations, 

and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 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’’. 

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 PROTEC3 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: 

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 Protec6 tion Act of 2020, was classified by the employer 

7 as an independent contractor; and 

8 ‘‘(B) in any workweek is engaged in com9 merce or in the production of goods for com10 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 FLEXI14 BILITY.—The term ‘schedule and scheduling flexi15 bility’, with respect to the work of a covered em16 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 per22 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 con9 tractor in the 12-month period prior to the date of 

10 enactment of the Worker Flexibility and Small Busi11 ness Protection Act of 2020. 

12 ‘‘(2) DURATION OF RIGHT.—A covered em13 ployee shall continue to possess the right to main14 tain the same schedule and scheduling flexibility de15 scribed in paragraph (1) for the duration of the em16 ployment of the covered employee with the employer. 

17 ‘‘(3) NONRETALIATION.— 

18 ‘‘(A) IN GENERAL.—An employer of a cov19 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 in6 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 sus14 pending or deactivating an account the 

15 covered employee uses to perform work for 

16 the employer. 

17 ‘‘(C) MOTIVATING FACTOR.—For the pur18 poses of subparagraph (A)(ii), unlawful dis19 crimination is established when a covered em20 ployee demonstrates that the schedule or sched21 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. 

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 per9 forms the work; and 

10 ‘‘(E) any unpaid time off the employee de11 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 de16 scribed in paragraph (1). 

17 ‘‘(B) MOTIVATING FACTOR.—Unlawful dis18 charge or discrimination against an employee is 

19 established under subparagraph (A) when the 

20 complaining party demonstrates that the re21 quest described in paragraph (1) was a moti22 vating factor for such discharge or discrimina23 tion, even if such discharge or discrimination 

24 was also motivated by other factors. 

25 ‘‘(3) RESPONSE.— 


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1 ‘‘(A) IN GENERAL.—An employer shall re2 spond to a request described in paragraph (1) 

3 by either granting the request in full or pro4 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 em8 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 em12 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 em18 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 de22 nial. 

23 ‘‘(C) APPEALS.— 

24 ‘‘(i) IN GENERAL.—An aggrieved em25 ployer or employee may— 


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1 ‘‘(I) appeal an order of the Sec2 retary under subparagraph (B) to an 

3 administrative law judge; and 

4 ‘‘(II) appeal an order of an ad5 ministrative law judge under sub6 clause (I) to a Federal or State court 

7 of competent jurisdiction. 

8 ‘‘(ii) COMPLIANCE WITH ORDER DUR9 ING APPEAL.—For the duration of an ap10 peal described in clause (i)(I), the em11 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 NECES21 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 prohib3 itive of continuing to conduct business. 

4 ‘‘(ii) A complete inability of the em5 ployer to reorganize work amongst existing 

6 employees. 

7 ‘‘(iii) A complete inability of the em8 ployer to recruit additional employees. 

9 ‘‘(iv) A significant detrimental effect 

10 on the ability of the employer to meet cus11 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 deter18 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 le23 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 FLEXI12 BILITY.—Any person who violates section 8 shall be sub13 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 

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.—Sec13 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 pro17 vided in paragraphs (2), (3), (4), (5), (7), and (9), an indi18 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 di22 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, pro5 fession, or business of the same nature as that in6 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 re10 garding when an individual is an employee of another per11 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 other17 wise, that purports to demonstrate an individual’s ac18 knowledgment of or acquiescence to the absence of an em19 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 per23 son and an individual who performs labor for such person, 

24 the presence of the non-compete agreement, without re25 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 in4 dividual. 

5 ‘‘(B) In this paragraph, the term ‘non-compete agree6 ment’ means an agreement between a person and an indi7 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 simi15 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 fol21 lowing: 

22 ‘‘(8) For purposes of this Act, an individual per23 forming any labor for remuneration for a person shall be 

24 presumed to be an employee of the person, unless the 

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 para3 graph (9).’’. 

4 (3) MISCLASSIFICATION AS A STANDALONE VIO5 LATION.— 

6 (A) IN GENERAL.—The Fair Labor Stand7 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 produc14 tion of goods for commerce, or is employed in an enter15 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 fol24 lowing: 

25 ‘‘(6) to violate section 5;’’. 


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1 (B) INCORPORATION TO FURTHER VIOLA2 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 fa7 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 corpora11 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 fol21 lowing: 

22 ‘‘(7) PENALTIES FOR MISCLASSIFICATION AND IN23 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 sub3 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 per9 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 WIDE14 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 wide17 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 

25 would indemnify the person from violations of such 


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1 paragraph (6) or (7), respectively. If a person re2 ceives a payment from an insurance plan to indem3 nify the person from a violation of such paragraph, 

4 the person shall transfer the payment to the Sec5 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 be18 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 

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 en6 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 ac15 tion taken against an employee within 90 days of 

16 the employee taking any action described in sub17 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 dis24 charge or other discrimination against an employee 

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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 dis4 crimination, even if such discharge or other discrimi5 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 fol11 lows: 

12 ‘‘(d) EMPLOYER.— 

13 ‘‘(1) IN GENERAL.—The term ‘employer’ in14 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 in18 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 con24 sistent with the other definitions in this section and 

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 IN4 DUSTRIES.—The term ‘employer’ shall include any 

5 person, except a person excluded under paragraph 

6 (2), with respect to an individual described in sub7 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 individ12 uals in the form of transportation in a motor13 ized or unmotorized vehicle, by foot, or by any 

14 other means, including transportation network 

15 companies, technology platform companies, pas16 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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1 ment of goods or services takes place be2 tween individuals who are completely inde3 pendent from and free from any and all di4 rection or control by the person owning, 

5 controlling, or managing the neutral mar6 ketplace, including such person having ab7 solutely no role in the setting of prices or 

8 rates, in the assignment or referral of re9 quests for goods or services to individuals 

10 who could potentially provide such goods 

11 or services, and in the acceptance or rejec12 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’, 

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


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1 shall include any individual performing labor that is bene2 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 transpor8 tation beneficial to transportation network compa9 nies, technology platform companies, passenger 

10 transportation or food transportation companies, or 

11 cargo transportation companies; and 

12 ‘‘(B) with respect to network dispatching de13 scribed in subparagraph (B) of such subsection, any 

14 individual who performs any portion of the services 

15 or labor included under such subparagraph, includ16 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 reason10 able amount of time, as determined by the Sec11 retary in accordance with subparagraph (C), 

12 spent on waiting for, receiving, reviewing, con13 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 pro21 vide services or labor. 

22 ‘‘(B) RATE OF COMPENSATION.—Com23 pensation paid for any reasonable amount of 

24 time described in subparagraph (A) shall be 

25 paid at a rate no less than the employee’s reg26 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 pur4 poses of subparagraph (A) given the specific 

5 circumstances involved, except that in all 

6 cases— 

7 ‘‘(i) the minimum amount of the rea8 sonable amount of time for the activities 

9 described in subparagraph (A) before ac10 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.—Notwith16 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 com20 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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1 lations Act (29 U.S.C. 158(f), 159(a)), that al2 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 sub6 poenas for any information or data held by an em7 ployer that the Secretary determines to be rel8 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 fol10 lowing: 

11 ‘‘(b) MISCLASSIFICATION ENFORCEMENT THROUGH

12 RECLASSIFICATION ORDERS.— 

13 ‘‘(1) IN GENERAL.—If the Secretary deter14 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 em21 ployer to immediately classify the 1 or more in22 dividuals as employees of the employer; and 

23 ‘‘(B) the employer shall immediately com24 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 para4 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 con18 test the order. 

19 ‘‘(B) REQUESTS.—A request under sub20 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 

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 de9 termine whether to affirm, modify, or re10 voke the contested order. 

11 ‘‘(4) HEARINGS AND APPEALS.—Any person ag12 grieved by a determination of the Secretary under 

13 paragraph (3)(C)(ii) may— 

14 ‘‘(A) request a hearing to appeal such de15 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 Sec20 retary may seek an injunction proceeding under sub21 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 dem24 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 re6 view under paragraph (3), or a hearing or ap7 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 dam16 ages, or civil penalties owed by the em17 ployer under section 16 with respect to the 

18 misclassification of such 1 or more individ19 uals; and 

20 ‘‘(iii) the Secretary of Labor, adminis21 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 ex25 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 pre4 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 em16 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 Sec21 retary shall issue— 

22 ‘‘(A) subject to subparagraph (B), an 

23 order against the employer requiring the ces24 sation of all business operations of such em25 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 em3 ployer by any Federal, State, or local agency 

4 for misclassifying an employee as not an em5 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 re8 quiring the cessation of all business operations 

9 of such employer at all business locations of the 

10 employer, including locations other than the lo11 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 lo19 cation at the place of business of the em20 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 para2 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 Sec11 retary issues another order releasing the 

12 order issued under such paragraph upon a 

13 finding by the Secretary that the em14 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 min22 imum wages, unpaid overtime com23 pensation, other damages, and civil 

24 penalties owed by the employer under 

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 con13 test the order. 

14 ‘‘(B) REQUESTS.—A request under sub15 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 

25 hours after such commencement. 


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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 de4 termine whether to affirm, modify, or re5 voke the contested order. 

6 ‘‘(4) HEARINGS AND APPEALS.—Any person ag7 grieved by a determination of the Secretary under 

8 paragraph (3)(C)(ii) may— 

9 ‘‘(A) request a hearing to appeal such de10 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 Sec15 retary may seek an injunction proceeding under sub16 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 dem19 onstrated it is just and proper. 

20 ‘‘(6) COMPENSATION FOR LOST WORK.— 

21 ‘‘(A) IN GENERAL.—Subject to subpara22 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 

25 compensation due to the work of such employee 


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1 ceasing as a result of such order, the compensa2 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 sub15 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 em21 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 

25 for any applicable unpaid minimum wages, 


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1 unpaid overtime compensation, other dam2 ages, or civil penalties owed by the em3 ployer under section 16 with respect to the 

4 misclassification of such 2 or more individ5 uals; and 

6 ‘‘(iii) the Secretary of Labor, adminis7 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 de12 monstrable lost net profits resulting 

13 from the order, as demonstrated by 

14 clear and convincing evidence; and 

15 ‘‘(II) reasonable fees and ex16 penses of attorneys in the same man17 ner as such fees and expenses could 

18 be awarded under section 2412 of title 

19 28, United States Code, if the em20 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 

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 fol10 lowing: 

11 ‘‘(8) PENALTIES FOR VIOLATING RECLASSIFICATION

12 ORDERS.— 

13 ‘‘(A) CIVIL PENALTIES.—Any person who vio14 lates a reclassification order issued by the Secretary 

15 under section 17(b)(1) shall be subject to a civil pen16 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 re21 view under paragraph (3) of such section, a hearing 

22 under paragraph (4)(A) of such section, and a sub23 sequent judicial proceeding under paragraph (4)(B) 

24 of such section, and the court in such proceeding 

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 pe6 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 em11 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 

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 sub6 section (f), be liable to the employee or employ7 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 in15 serting ‘‘and as provided in subsection 

16 (f)(3)(B),’’ after ‘‘Except for civil pen17 alties collected for violations of section 

18 12’’; and 

19 (II) in the second sentence, by 

20 striking ‘‘Civil penalties’’ and insert21 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 ac6 tion in accordance with subsection (b) for the recov7 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 plain10 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 em21 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 accord16 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 as20 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), 

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 recov4 ered through a civil action by the employee, the 

5 employee and any other similarly situated em6 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 Fed11 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 em21 ployees involved in the action; and 

22 ‘‘(B) the court shall determine how to di23 vide the remainder of the amount of the penalty 

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1 volved in the action equitably among such em2 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, regard18 less of whether all parties to the civil action 

19 have consented to arbitration, without the ex20 plicit consent of the Secretary for sending that 

21 specific action to arbitration.’’. 

22 (b) NATIONAL LABOR RELATIONS ACT.— 

23 (1) STRENGTHENING EMPLOYEE TEST.—Sec24 tion 2(3) of the National Labor Relations Act (29 

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 pro8 vided in the second sentence of subparagraph (A) and sub9 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 con12 tractor of the person, unless— 

13 ‘‘(I) the individual is free from control and di14 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, pro21 fession, or business of the same nature as that in22 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 

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 acknowledg8 ment of or acquiescence to the absence of an employer9 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 agree16 ment, shall be evidence of control for purposes of subpara17 graph (B)(i)(I), but shall not by itself establish an employ18 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 re22 stricts the individual from performing, either during or 

23 after the individual performs labor for such person— 

24 ‘‘(I) any labor for another person; 

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 simi4 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 fol10 lowing: 

11 ‘‘(D) For purposes of this Act, an individual per12 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 VIO18 LATION.— 

19 (A) IN GENERAL.—Section 8(a) of the Na20 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 semi24 colon; and 


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1 (ii) by adding at the end the fol2 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 VIOLA8 TIONS.—Section 8(a) of the National Labor Re9 lations Act (29 U.S.C. 158(a)), as amended by 

10 subparagraph (A), is further amended by add11 ing at the end the following: 

12 ‘‘(7) for the purpose, in whole or in part, of fa13 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 corpora17 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 Na24 tional Labor Relations Act (29 U.S.C. 162) is 

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 perform5 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 per18 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 WIDE23 SPREAD VIOLATIONS.—If a violation of paragraph 

24 (6) or (7) of section 8(a) is repeated or willful, as 

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 para5 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 re10 ceives a payment from an insurance plan to indem11 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 ac14 count of the person for the penalty.’’. 

15 (4) PROTECTION FROM RETALIATION FOR

16 BEING AN EMPLOYEE.—Section 8(a)(4) of the Na17 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: 

25 ‘‘(B) such employee— 


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1 ‘‘(i) is required, pursuant to the en2 actment of the Worker Flexibility and 

3 Small Business Protection Act of 2020, to 

4 be classified as an employee of the em5 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), in17 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 pre20 sumption that the action is discrimination against the em21 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’ in6 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 cor9 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 ca14 pacity of officer or agent of such labor organization. 

15 ‘‘(B) STATUTORY EMPLOYERS IN CERTAIN IN16 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) per20 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 individ24 uals in the form of transportation in a motor25 ized or unmotorized vehicle, by foot, or by any 


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1 other means, including transportation network 

2 companies, technology platform companies, pas3 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 procure13 ment of goods or services takes place be14 tween individuals who are completely inde15 pendent from and free from any and all di16 rection or control by the person owning, 

17 controlling, or managing the neutral mar18 ketplace, including such person having ab19 solutely no role in the setting of prices or 

20 rates, in the assignment or referral of re21 quests for goods or services to individuals 

22 who could potentially provide such goods 

23 or services, and in the acceptance or rejec24 tion of any requests for goods or services; 

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 per18 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 plat22 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 de2 scribed in clause (ii) of such paragraph, any indi3 vidual who performs any portion of the labor in4 cluded under such clause, including providing the 

5 services or labor described in such clause to the indi6 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 Na11 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 em19 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 deter25 mination, an order against the employer requirVerDate Sep 11 2014 22:42 Oct 26, 2020 Jkt 019200 PO 00000 Frm 00054 Fmt 6652 Sfmt 6201 E:\BILLS\S4738.IS S4738

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1 ing the employer to immediately classify the 1 

2 or more individuals as employees of the em3 ployer; and 

4 ‘‘(B) the employer shall immediately com5 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 para9 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 sub25 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 ag17 grieved by a determination of the General Counsel 

18 under paragraph (3)(C)(ii) may— 

19 ‘‘(A) request a hearing on the merits be20 fore an Administrative Law Judge; 

21 ‘‘(B) appeal the determination of an Ad22 ministrative Law Judge under subparagraph 

23 (A) to the Board; and 

24 ‘‘(C) appeal an order of the Board under 

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 de9 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 tem14 porary relief or restraining order if the regional di15 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 re21 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 

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 individ8 uals; and 

9 ‘‘(iii) the General Counsel, the Admin10 istrative Law Judge, the Board, or the 

11 court (as applicable) shall award (and the 

12 Secretary of the Treasury shall, in accord13 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 sec17 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 

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


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1 pay any fees or expenses awarded under sub2 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 re7 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 ces15 sation of all business operations of such em16 ployer at the location of the violation; or 

17 ‘‘(B) if an order described in subparagraph 

18 (A) has been previously issued against the em19 ployer by any Federal, State, or local agency 

20 for misclassifying an employee as not an em21 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 em24 ployer requiring the cessation of all business op25 erations of such employer at all business locaVerDate Sep 11 2014 22:42 Oct 26, 2020 Jkt 019200 PO 00000 Frm 00059 Fmt 6652 Sfmt 6201 E:\BILLS\S4738.IS S4738

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1 tions of the employer, including locations other 

2 than the location where the misclassification oc3 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 lo11 cation at the place of business of the em12 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 subpara20 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 

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 em5 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 re17 lease order under clause (i), the employer 

18 fails to comply with the terms of the pay19 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 

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 sub4 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 ag21 grieved by a determination of the General Counsel 

22 under paragraph (3)(C)(ii) may— 

23 ‘‘(A) request a hearing on the merits be24 fore an Administrative Law Judge; 


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1 ‘‘(B) appeal a determination by an Admin2 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 OR12 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 subpara22 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 

25 compensation due to the work of such employee 


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1 ceasing as a result of such order, the compensa2 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 sub15 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 em21 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 

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 individ4 uals; and 

5 ‘‘(iii) the General Counsel, the Admin6 istrative Law Judge, the Board, or the 

7 court, as applicable, shall award (and the 

8 Secretary of the Treasury shall, in accord9 ance with subparagraph (B), pay) to the 

10 employer— 

11 ‘‘(I) the amount equal to any de12 monstrable lost net profits resulting 

13 from the order, as demonstrated by 

14 clear and convincing evidence; and 

15 ‘‘(II) reasonable fees and ex16 penses of attorneys in the same man17 ner as such fees and expenses could 

18 be awarded under section 2412 of title 

19 28, United States Code, if the em20 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 

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 Na7 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 RECLASSIFICA11 TION ORDERS.— 

12 ‘‘(1) CIVIL PENALTIES.—Any person who vio13 lates a reclassification order issued by a regional di14 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 para23 graph (4)(B) of such section, and a subsequent judi24 cial proceeding under paragraph (4)(C) of such secVerDate Sep 11 2014 22:42 Oct 26, 2020 Jkt 019200 PO 00000 Frm 00066 Fmt 6652 Sfmt 6201 E:\BILLS\S4738.IS S4738

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1 tion and a court rules in favor of the regional direc2 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 em6 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 em13 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.—Sec22 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 

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 pur4 suant to this Act, except as provided in subpara5 graphs (C) and (E), an individual performing any 

6 labor for remuneration for a person shall be an em7 ployee employed by such person and not an inde8 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 per12 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 en16 gaged in an independently established trade, oc17 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 com20 mon law and shall not be interpreted to reflect, or 

21 to be limited or restricted by, common law interpre22 tations regarding when an individual is an employee 

23 of another person. Clause (i) shall be considered 

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1 terpretation of such clause shall be limited to the ex2 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 individ6 ual’s acknowledgment of or acquiescence to the ab7 sence of an employer-employee relationship with a 

8 particular employer. 

9 ‘‘(C)(i) Notwithstanding any contrary provi10 sions in this paragraph or paragraph (5), in any in11 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-com14 pete agreement, without regard to the legality or en15 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 employ18 ment relationship between such person and the indi19 vidual. 

20 ‘‘(ii) In this subparagraph, the term ‘non-com21 pete agreement’ means an agreement between a per22 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 

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 agree9 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 pur17 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 seek20 ing to assert otherwise establishes by clear and con21 vincing evidence that the individual is not an em22 ployee in accordance with this paragraph.’’. 

23 (3) MISCLASSIFICATION AS A STANDALONE VIO24 LATION.— 


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1 (A) IN GENERAL.—Section 5(a) of the Oc2 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 semi6 colon; and 

7 (ii) by adding at the end the fol8 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 VIOLA15 TIONS.—Section 5(a) of the Occupational Safe16 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 viola21 tion of this Act, including a violation of paragraph 

22 (3) or any standard, rule, regulation, or order pro23 mulgated pursuant to this Act— 

24 ‘‘(A) incorporate or form, or assist in the 

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 for4 eign or domestic corporation, partnership, lim5 ited liability corporation, or other entity.’’. 

6 (C) PENALTIES.—Section 17 of the Occu7 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 per24 cent of the net profits of the person for the year 

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 WIDE4 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 para12 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 re17 ceives a payment from an insurance plan to indem18 nify the person from a violation of such paragraph, 

19 the person shall transfer the payment to the Sec20 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 Oc24 cupational Safety and Health Act of 1970 (29 

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 en9 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 pro14 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 Occupa22 tional Safety and Health Act of 1970 (29 U.S.C. 

23 660(c)) is amended by adding at the end the fol24 lowing: 


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1 ‘‘(4) PRESUMPTION OF RETALIATION.—Any ac2 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 para5 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 discrimi9 nation against the employee in violation of para10 graph (1). 

11 ‘‘(5) MOTIVATING FACTOR.—Unlawful dis12 charge or other discrimination against an employee 

13 under paragraph (1) is established when the com14 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 dis17 crimination, even if such discharge or other discrimi18 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: 

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 polit7 ical subdivision of a State. 

8 ‘‘(C) STATUTORY EMPLOYERS IN CERTAIN IN9 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 per13 son, that is engaged in any of the following work: 

14 ‘‘(i) Transportation, including any person 

15 that benefits from labor performed by individ16 uals in the form of transportation in a motor17 ized or unmotorized vehicle, by foot, or by any 

18 other means, including transportation network 

19 companies, technology platform companies, pas20 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 

25 with individuals or entities seeking to provide 


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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 procure5 ment of goods or services takes place be6 tween individuals who are completely inde7 pendent from and free from any and all di8 rection or control by the person owning, 

9 controlling, or managing the neutral mar10 ketplace, including such person having ab11 solutely no role in the setting of prices or 

12 rates, in the assignment or referral of re13 quests for goods or services to individuals 

14 who could potentially provide such goods 

15 or services, and in the acceptance or rejec16 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 in5 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 per9 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 plat13 form companies, passenger transportation or food 

14 transportation companies, or cargo transportation 

15 companies; and 

16 ‘‘(ii) with respect to network dispatching de17 scribed in clause (ii) of such paragraph, any indi18 vidual who performs any portion of the labor in19 cluded under such clause, including providing the 

20 services or labor described in such clause to the indi21 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 Safe2 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 deter10 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 em17 ployer to immediately classify the 1 or more in18 dividuals as employees of the employer; and 

19 ‘‘(B) the employer shall immediately com20 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 para24 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 con14 test the order. 

15 ‘‘(B) REQUESTS.—A request under sub16 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 de6 termine whether to affirm, modify, or re7 voke the contested order. 

8 ‘‘(4) HEARINGS AND APPEALS.—Any person ag9 grieved by a determination of the Secretary under 

10 paragraph (3)(C)(ii) may— 

11 ‘‘(A) request a hearing to appeal such de12 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 vio23 lates an order issued under paragraph (1). A court 

24 shall issue such appropriate relief if the Secretary 

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 re6 view under paragraph (3), or a hearing or ap7 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, reg17 ulation, or order promulgated pursuant to 

18 this Act) with respect to the 

19 misclassification of such 1 or more individ20 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) 

25 to the employer reasonable fees and exVerDate Sep 11 2014 22:42 Oct 26, 2020 Jkt 019200 PO 00000 Frm 00082 Fmt 6652 Sfmt 6201 E:\BILLS\S4738.IS S4738

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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 pre5 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 em16 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 ces23 sation of all business operations of such em24 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 em3 ployer by any Federal, State, or local agency 

4 for misclassifying an employee as not an em5 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 re8 quiring the cessation of all business operations 

9 of such employer at all business locations of the 

10 employer, including locations other than the lo11 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 lo19 cation at the place of business of the em20 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 apVerDate Sep 11 2014 22:42 Oct 26, 2020 Jkt 019200 PO 00000 Frm 00084 Fmt 6652 Sfmt 6201 E:\BILLS\S4738.IS S4738

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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 Sec11 retary issues another order releasing the 

12 order issued under such paragraph upon a 

13 finding by the Secretary that the em14 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 em6 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 con15 test the order. 

16 ‘‘(B) REQUESTS.—A request under sub17 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 

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 de6 termine whether to affirm, modify, or re7 voke the contested order. 

8 ‘‘(4) HEARINGS AND APPEALS.—Any person ag9 grieved by a determination of the Secretary under 

10 paragraph (3)(C)(ii) may— 

11 ‘‘(A) request a hearing to appeal such de12 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 vio23 lates an order issued under paragraph (1). A court 

24 shall issue such appropriate relief if the Secretary 

25 has demonstrated it is just and proper. 


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1 ‘‘(6) COMPENSATION FOR LOST WORK.— 

2 ‘‘(A) IN GENERAL.—Subject to subpara3 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 compensa8 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 sub21 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 em3 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, reg10 ulation, or order promulgated pursuant to 

11 this Act) with respect to the 

12 misclassification of such 2 or more individ13 uals; and 

14 ‘‘(iii) the Secretary of Labor, adminis15 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 de20 monstrable lost net profits resulting 

21 from the order, as demonstrated by 

22 clear and convincing evidence; and 

23 ‘‘(II) reasonable fees and ex24 penses of attorneys in the same man25 ner as such fees and expenses could 


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1 be awarded under section 2412 of title 

2 28, United States Code, if the em3 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 Occu15 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 RECLASSIFICA20 TION ORDERS.— 

21 ‘‘(1) CIVIL PENALTIES.—Any person who vio22 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 

25 day constituting a separate offense. 


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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 sec4 tion 13A(a) in a review under paragraph (3) of such 

5 section, hearing under paragraph (4)(A) of such sec6 tion, and subsequent judicial proceeding under para7 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 em12 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 em19 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, includ9 ing any mandatory health or safety standard, rule, order, 

10 or regulation promulgated pursuant to this Act, and ex11 cept as provided in subsection (c), an individual per12 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 di16 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, profes23 sion, or business of the same nature as that involved 

24 in the labor performed. 

25 ‘‘(b) CLARIFICATIONS.— 


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1 ‘‘(1) RELATIONSHIP WITH COMMON LAW.—Sub2 section (a) is not a codification of the common law 

3 and shall not be interpreted to reflect, or to be lim4 ited or restricted by, common law interpretations re5 garding when an individual is an employee of an6 other person. Subsection (a) shall be considered 

7 complete as written, and any judicial or agency in8 terpretation of such subsection shall be limited to 

9 the explicit requirements of such subsection. 

10 ‘‘(2) IMPACT OF WRITTEN OR OTHER AGREE11 MENTS.—The requirements of subsection (a) shall 

12 not be in any way affected by any agreement, writ13 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 con19 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 per22 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 

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 AGREE4 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 per7 son that restricts the individual from performing, ei8 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 agree18 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 

25 safety standard, rule, order, or regulation promulgated 


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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 VIO8 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 FUR14 THER VIOLATIONS. 

15 ‘‘(a) IN GENERAL.—No operator of a coal or other 

16 mine shall misclassify an employee of the operator per17 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 VIOLA22 TIONS.—Section 117 of the Federal Mine Safe23 ty and Health Act of 1977, as added by sub24 paragraph (A), is amended by adding at the 

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 pro6 mulgated pursuant to this Act— 

7 ‘‘(1) incorporate or form, or assist in the incor8 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 Fed14 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 IN22 CORPORATION TO FURTHER VIOLATIONS.— 

23 ‘‘(1) IN GENERAL.—Any operator of a coal or 

24 other mine who violates section 117 shall be subject 

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 per6 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 WIDE11 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 sec18 tion 117 shall be paid from an account of the oper19 ator in such violation and not paid, or reimbursed, 

20 by any insurance plan that would indemnify the op21 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 viola24 tion of such section, the operator shall transfer the 

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 dis11 criminate against or cause to be discharged or cause dis12 crimination against or otherwise interfere with the exer13 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 Protec18 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 inde24 pendent contractor prior to the date of enactment of 


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1 the Worker Flexibility and Small Business Protec2 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 fol7 lowing: 

8 ‘‘(4) PRESUMPTION OF RETALIATION.—Any ac9 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 presump18 tion that the action is discrimination against the 

19 miner, representative, or applicant in violation of 

20 paragraph (1). 

21 ‘‘(5) MOTIVATING FACTOR.—Unlawful dis22 charge or discrimination under paragraph (1) 

23 against a miner, representative of miners, or appli24 cant for employment in any coal or other mine sub25 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 mo3 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 deter18 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, 

25 an order against the operator requiring the opVerDate Sep 11 2014 22:42 Oct 26, 2020 Jkt 019200 PO 00000 Frm 00100 Fmt 6652 Sfmt 6201 E:\BILLS\S4738.IS S4738

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1 erator to immediately classify the 1 or more in2 dividuals as employees of the operator; and 

3 ‘‘(B) the operator shall immediately com4 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 para8 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 para17 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 con22 test the order. 

23 ‘‘(B) REQUESTS.—A request under sub24 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 de14 termine whether to affirm, modify, or re15 voke the contested order. 

16 ‘‘(4) HEARINGS AND APPEALS.—Any person ag17 grieved by a determination of the Secretary under 

18 paragraph (3)(C)(ii) may— 

19 ‘‘(A) request a hearing to appeal such de20 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 re15 view under paragraph (3), or a hearing or ap16 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 

25 this Act (including any mandatory health 


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1 or safety standard, rule, order, or regula2 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, adminis6 trative law judge, or the court, as applica7 ble, shall award (and the Secretary of the 

8 Treasury shall, in accordance with sub9 paragraph (B), pay) to the operator rea10 sonable fees and expenses of attorneys in 

11 the same manner as such fees and ex12 penses could be awarded under section 

13 2412 of title 28, United States Code, if the 

14 operator was a prevailing party and the re15 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 oper2 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 sec6 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 ces10 sation of all business operations of such oper11 ator at the location of the violation; or 

12 ‘‘(B) if an order described in subparagraph 

13 (A) has been previously issued against the oper14 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 re20 quiring the cessation of all business operations 

21 of such operator at all business locations of the 

22 operator, including locations other than the lo23 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 lo7 cation at the place of business of the oper8 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 para14 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 Sec23 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 oper2 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 stand13 ard, rule, order, or regulation promul14 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 pay19 ment schedule described in clause (i)(II), 

20 the Secretary shall reinstate the order 

21 issued under paragraph (1) until the oper22 ator is in compliance with such terms. 

23 ‘‘(3) REVIEW FOR RECONSIDERATION.— 

24 ‘‘(A) IN GENERAL.—An operator of a coal 

25 or other mine against whom an order is issued 


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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 sub4 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 de18 termine whether to affirm, modify, or re19 voke the contested order. 

20 ‘‘(4) HEARING AND APPEALS.—Any person ag21 grieved by a determination of the Secretary under 

22 paragraph (3)(C)(ii) may— 

23 ‘‘(A) appeal such determination to an ad24 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 subpara16 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 compensa21 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, 

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 ap10 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 oper16 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 regula24 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, adminis4 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 de9 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 pro19 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 

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 Fed4 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 sepa15 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 

25 the period between the issuance of such order 


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1 and the conclusion of the proceeding, the oper2 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 WORK16 ER PROTECTION ACT.— 

17 (1) STRENGTHENING EMPLOYEE TEST.—The 

18 Migrant and Seasonal Agricultural Worker Protec19 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, includ3 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 con10 tractor of the person, unless— 

11 ‘‘(1) the individual is free from control and di12 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, profes19 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.—Sub23 section (a) is not a codification of the common law 

24 and shall not be interpreted to reflect, or to be lim25 ited or restricted by, common law interpretations re26 garding when an individual is an employee of anVerDate Sep 11 2014 22:42 Oct 26, 2020 Jkt 019200 PO 00000 Frm 00114 Fmt 6652 Sfmt 6201 E:\BILLS\S4738.IS S4738

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1 other person. Subsection (a) shall be considered 

2 complete as written, and any judicial or agency in3 terpretation of such subsection shall be limited to 

4 the explicit requirements of such subsection. 

5 ‘‘(2) IMPACT OF WRITTEN OR OTHER AGREE6 MENTS.—The requirements of subsection (a) shall 

7 not be in any way affected by any agreement, writ8 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 con14 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 per17 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 AGREE24 MENT.—In this subsection, the term ‘non-compete 

25 agreement’ means an agreement between a person 


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1 and an individual who performs labor for such per2 son that restricts the individual from performing, ei3 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 agree13 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 fol18 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 de22 scribed in section 3(3), including the handling, planting, 

23 drying, packing, packaging, processing, freezing, or grad24 ing described in such section, for remuneration for a per25 son shall be presumed to be an employee employed in agriVerDate Sep 11 2014 22:42 Oct 26, 2020 Jkt 019200 PO 00000 Frm 00116 Fmt 6652 Sfmt 6201 E:\BILLS\S4738.IS S4738

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1 cultural employment of the person, unless the party seek2 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 VIO6 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 FUR12 THER VIOLATIONS. 

13 ‘‘(a) IN GENERAL.—No agricultural employer, agri14 cultural association, or farm labor contractor shall 

15 misclassify a migrant agricultural worker or seasonal agri16 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 VIOLA23 TIONS.—Section 405 of the Migrant and Sea24 sonal Agricultural Worker Protection Act, as 


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1 added by subparagraph (A), is amended by add2 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 incor9 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 Pro16 tection Act (29 U.S.C. 1853(a)) is amended— 

17 (i) in paragraph (1), by striking 

18 ‘‘paragraph (2)’’ and inserting ‘‘para19 graphs (2), (3), (4), and (5)’’; and 

20 (ii) by adding at the end the fol21 lowing: 

22 ‘‘(3) PENALTIES FOR MISCLASSIFICATION AND

23 INCORPORATION TO FURTHER VIOLATIONS.— 


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1 ‘‘(A) IN GENERAL.—Any person who vio2 lates section 405 shall be subject to a civil pen3 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 high11 est net profits out of all years in which the 

12 person was in such violation. 

13 ‘‘(B) REPEATED, OR WILLFUL, AND WIDE14 SPREAD VIOLATIONS.—If a violation of section 

15 405 is repeated or willful, as described in sub16 paragraph (A)(ii), and is widespread, as de17 scribed in subparagraph (A)(iii), the higher 

18 penalty of the penalties described in such sub19 paragraphs shall apply. 

20 ‘‘(C) PAYMENT OF PENALTIES.—Any pen21 alty assessed under subparagraph (A) for a vio22 lation of section 405 shall be paid from an ac23 count of the person in such violation and not 

24 paid, or reimbursed, by any insurance plan that 

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 ac6 count of the person for the penalty.’’. 

7 (4) PROTECTION FROM RETALIATION FOR

8 BEING AN EMPLOYEE.—Part A of title V of the Mi9 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 in17 serting ‘‘(1) No person’’; and 

18 (ii) by adding at the end the fol19 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 agri23 cultural worker because such worker— 

24 ‘‘(A) is required to be classified as employed in 

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 inde4 pendent contractor prior to the date of enactment of 

5 the Worker Flexibility and Small Business Protec6 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 ac15 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, in19 cluding taking any such action with respect to exer20 cising the right pursuant to section 405(a) to not be 

21 misclassified, shall establish a rebuttable presump22 tion that the action is discrimination against the 

23 worker in violation of subsection (a). 

24 ‘‘(2) MOTIVATING FACTOR.—Unlawful discrimi25 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 sub4 section, is established when the complaining party 

5 demonstrates that one or more actions or the classi6 fication described in such subsection was a moti7 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 Pro14 tection Act (29 U.S.C. 1851 et seq.), as amend15 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 deter22 mines, after an investigation under section 512, that 

23 an agricultural employer, agricultural association, or 

24 farm labor contractor has misclassified 1 or more in25 dividuals who are migrant agricultural workers or 


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1 seasonal agricultural workers employed by the em2 ployer, association, or contractor as not such work3 ers employed by such employer, association, or con4 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 con13 tractor shall immediately comply with the order 

14 issued under subparagraph (A) or shall other15 wise be in violation of section 405(a). 

16 ‘‘(2) ORDERS.—An order issued under para17 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 con22 spicuous location at the place of business of the 

23 employer, association, or contractor; and 

24 ‘‘(B) remain in effect during any review 

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 em5 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 sub10 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 de24 termine whether to affirm, modify, or re25 voke the contested order. 


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1 ‘‘(4) HEARINGS AND APPEALS.—Any person ag2 grieved by a determination of the Secretary under 

3 paragraph (3)(C)(ii) may— 

4 ‘‘(A) request a hearing to appeal such de5 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 de13 scribed in paragraph (4)(B) for temporary or perma14 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 Sec19 retary has demonstrated it is just and proper. 

20 ‘‘(6) SUCCESSFULLY DISPROVING OCCURRENCE

21 OF MISCLASSIFICATION.— 

22 ‘‘(A) IN GENERAL.—If an agricultural em23 ployer, agricultural association, or farm labor 

24 contractor with respect to whom an order was 

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 con9 tractor shall not be liable for any applica10 ble back pay, damages, or civil penalties 

11 owed by the employer, association, or con12 tractor under this Act (including any regu13 lation under this Act) with respect to the 

14 misclassification of such 1 or more individ15 uals; and 

16 ‘‘(iii) the Secretary of Labor, adminis17 trative law judge, or court, as applicable, 

18 shall award (and the Secretary of the 

19 Treasury shall, in accordance with sub20 paragraph (B), pay) to the employer, asso21 ciation, or contractor reasonable fees and 

22 expenses of attorneys in the same manner 

23 as such fees and expenses could be award24 ed under section 2412 of title 28, United 

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 agri13 cultural employer, agricultural association, or farm 

14 labor contractor does not comply with a reclassifica15 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 Sec18 retary shall issue— 

19 ‘‘(A) subject to subparagraph (B), an 

20 order against the employer, association, or con21 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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1 ployer, association, or contractor by any Fed2 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 con6 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 oper11 ations of such employer, association, or con12 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, as21 sociation, or contractor, which may be ac22 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 

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 para6 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 Sec15 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 

25 schedule for all applicable back pay, 


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1 damages, and civil penalties owed by 

2 the employer, association, or con3 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, asso8 ciation, or contractor fails to comply with 

9 the terms of the payment schedule de10 scribed in clause (i)(II), the Secretary shall 

11 reinstate the order issued under paragraph 

12 (1) until the employer, association, or con13 tractor is in compliance with such terms. 

14 ‘‘(3) REVIEW FOR RECONSIDERATION.— 

15 ‘‘(A) IN GENERAL.—An agricultural em16 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 sub21 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 de11 termine whether to affirm, modify, or re12 voke the contested order. 

13 ‘‘(4) APPEALS.—Any person aggrieved by a de14 termination of the Secretary under paragraph 

15 (3)(C)(ii) may— 

16 ‘‘(A) appeal such determination to an ad17 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 de25 scribed in paragraph (4)(B) for temporary or permaVerDate Sep 11 2014 22:42 Oct 26, 2020 Jkt 019200 PO 00000 Frm 00131 Fmt 6652 Sfmt 6201 E:\BILLS\S4738.IS S4738

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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 Sec6 retary has demonstrated it is just and proper. 

7 ‘‘(6) COMPENSATION FOR LOST WORK.— 

8 ‘‘(A) IN GENERAL.—Subject to subpara9 graph (B), an agricultural employer, agricul10 tural association, or farm labor contractor with 

11 respect to whom an order is issued under para12 graph (1) shall pay each migrant agricultural 

13 worker or seasonal agricultural worker em14 ployed by the employer, association, or con15 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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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) suc7 cessfully proves through a review under para8 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 sec12 tion 405(a)— 

13 ‘‘(i) the order issued under paragraph 

14 (1), and any order issued against the em15 ployer, association, or contractor under 

16 subsection (a)(1), with respect to such 2 or 

17 more individuals, shall cease to be in ef18 fect; 

19 ‘‘(ii) the employer, association, or con20 tractor shall not be liable for any applica21 ble back pay, damages, or civil penalties 

22 owed by the employer, association, or con23 tractor under this Act (including any regu24 lation under this Act) with respect to the 


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1 misclassification of such 2 or more individ2 uals; and 

3 ‘‘(iii) the Secretary of Labor, adminis4 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 con8 tractor— 

9 ‘‘(I) an amount equal to any de10 monstrable lost net profits resulting 

11 from the order, as demonstrated by 

12 clear and convincing evidence; and 

13 ‘‘(II) reasonable fees and ex14 penses of attorneys in the same man15 ner as such fees and expenses could 

16 be awarded under section 2412 of title 

17 28, United States Code, if the em18 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 

25 Secretary of Labor, administrative law judge, or 


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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 Pro7 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 RECLASSIFICA11 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 sub15 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 para23 graph (3) of such section, a hearing under 

24 paragraph (4)(A) of such section, and a subse25 quent judicial proceeding under paragraph 


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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, dur4 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 em12 ployer, association, or contractor so vio13 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 dam20 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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1 (1) STRENGTHENING EMPLOYEE TEST.—Sub2 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 me8 chanic performing any labor under a contract or sub9 contract to which this subchapter applies shall be an em10 ployee employed by the contractor or subcontractor of the 

11 contract or subcontract and not an independent con12 tractor, unless— 

13 ‘‘(1) the laborer or mechanic is free from con14 trol and direction in connection with the perform15 ance of the labor, both under the contract or sub16 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 subcon20 tractor; and 

21 ‘‘(3) the laborer or mechanic is customarily en22 gaged in an independently established trade, occupa23 tion, profession, or business of the same nature as 

24 that involved in the labor performed. 

25 ‘‘(b) CLARIFICATIONS.— 


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1 ‘‘(1) RELATIONSHIP WITH COMMON LAW.—Sub2 section (a) is not a codification of the common law 

3 and shall not be interpreted to reflect, or to be lim4 ited or restricted by, common law interpretations re5 garding when an individual is an employee of an6 other person. Subsection (a) shall be considered 

7 complete as written, and any judicial or agency in8 terpretation of such subsection shall be limited to 

9 the explicit requirements of such subsection. 

10 ‘‘(2) IMPACT OF WRITTEN OR OTHER AGREE11 MENTS.—The requirements of subsection (a) shall 

12 not be in any way affected by any agreement, writ13 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 con19 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 agree23 ment, without regard to the legality or enforceability 

24 of the non-compete agreement, shall be evidence of 

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 AGREE4 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 per7 son that restricts the individual from performing, ei8 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 agree18 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 per25 forming any labor under a contract or subcontract to 


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1 which this subchapter applies shall be an employee em2 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 VIO8 LATION; INCORPORATION TO FURTHER VIOLA9 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, in13 corporation to further violations, and re14 taliation; reclassification orders and stop 

15 work orders 

16 ‘‘(a) MISCLASSIFICATION.—No contractor or subcon17 tractor of a contract or subcontract to which this sub18 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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1 tion of this subchapter, including a violation of subsection 

2 (a), shall— 

3 ‘‘(1) incorporate or form, or assist in the incor4 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 RETALIA11 TION.—Section 3144a of title 40, United States 

12 Code, added by paragraph (3), is amended by add13 ing at the end the following: 

14 ‘‘(c) RETALIATION.— 

15 ‘‘(1) IN GENERAL.—A contractor or subcon16 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 me19 chanic who is employed by the contractor or subcon20 tractor and is performing any labor under the con21 tract or subcontract, because— 

22 ‘‘(A) such laborer or mechanic has filed 

23 any complaint or instituted or caused to be in24 stituted any proceeding under or related to this 

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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 en5 actment of the Worker Flexibility and 

6 Small Business Protection Act of 2020, to 

7 be classified as an employee of the con8 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 con13 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 DIS17 CHARGE OR DISCRIMINATION.— 

18 ‘‘(A) PRESUMPTION OF RETALIATION.— 

19 Any action taken by a contractor or subcon20 tractor of a contract or subcontract to which 

21 this subchapter applies against a laborer or me22 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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1 tion described in paragraph (1)(A), including 

2 taking any such action with respect to exer3 cising the right of the laborer or mechanic pur4 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 dis9 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 fur21 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 

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 vio3 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 subcon7 tractor requiring the contractor or subcon8 tractor to immediately classify the 1 or more la9 borers or mechanics as employees of the con10 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 viola14 tion of subsection (a). 

15 ‘‘(2) ORDERS.—An order issued under para16 graph (1) shall— 

17 ‘‘(A) be effective at the time at which the 

18 order is served upon the contractor or subcon19 tractor, which may be accomplished by the post20 ing of a copy of the order in a conspicuous loca21 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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1 hearing and appeal of such order under para2 graph (4). 

3 ‘‘(3) REVIEW FOR RECONSIDERATION.— 

4 ‘‘(A) IN GENERAL.—A contractor or sub5 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 sub9 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 de23 termine whether to affirm, modify, or re24 voke the contested order. 


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1 ‘‘(4) HEARINGS AND APPEALS.—Any person ag2 grieved by a determination of the Secretary under 

3 paragraph (3)(C)(ii) may— 

4 ‘‘(A) request a hearing to appeal such de5 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 subcon13 tractor that violates an order issued under para14 graph (1). A court shall issue such temporary or 

15 permanent injunctive relief if the Secretary has dem16 onstrated it is just and proper. 

17 ‘‘(6) SUCCESSFULLY DISPROVING OCCURRENCE

18 OF MISCLASSIFICATION.— 

19 ‘‘(A) IN GENERAL.—If a contractor or sub20 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 

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, adminis13 trative law judge, or court, as applicable, 

14 shall award (and the Secretary of the 

15 Treasury shall, in accordance with sub16 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 con10 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 viola15 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 oper19 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 con23 tractor or subcontractor by any Federal, State, 

24 or local agency for misclassifying a laborer or 

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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 requir7 ing the cessation of all business operations of 

8 such contractor or subcontractor at all business 

9 locations of the contractor or subcontractor, in10 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 busi20 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 

25 such order and during any hearing 


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1 and appeal of such order under para2 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 Sec11 retary issues another order releasing the 

12 order issued under such paragraph upon a 

13 finding by the Secretary that the con14 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 com9 pliance with such terms. 

10 ‘‘(3) REVIEW FOR RECONSIDERATION.— 

11 ‘‘(A) IN GENERAL.—A contractor or sub12 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 sub16 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 ag8 grieved by a determination of the Secretary under 

9 paragraph (3)(C)(ii) may— 

10 ‘‘(A) request a hearing to appeal such de11 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 subcon19 tractor that violates an order issued under para20 graph (1). A court shall issue such temporary or 

21 permanent injunctive relief if the Secretary has dem22 onstrated it is just and proper. 

23 ‘‘(6) COMPENSATION FOR LOST WORK.— 

24 ‘‘(A) IN GENERAL.—Subject to subpara25 graph (B), a contractor or subcontractor with 


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1 respect to whom an order is issued under para2 graph (1) shall pay each laborer or mechanic 

3 described in subparagraph (C) the compensa4 tion that would be owed to such laborer or me5 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 

25 contractor or subcontractor with respect to 


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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 sub6 ject of the order were not misclassified in viola7 tion of subsection (a)— 

8 ‘‘(i) the order issued under paragraph 

9 (1), and any order issued against the con10 tractor or subcontractor under subsection 

11 (d)(1) with respect to such 2 or more la12 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, adminis22 trative law judge, or the court shall award 

23 (and the Secretary of the Treasury shall, 

24 in accordance with subparagraph (B), pay) 

25 to the contractor or subcontractor— 


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1 ‘‘(I) an amount equal to any de2 monstrable lost net profits resulting 

3 from the order, as demonstrated by 

4 clear and convincing evidence; and 

5 ‘‘(II) reasonable fees and ex6 penses of attorneys in the same man7 ner as such fees and expenses could 

8 be awarded under section 2412 of title 

9 28, United States Code, if the con10 tractor or subcontractor was a pre11 vailing party and the review, hearing, 

12 or appeals proceeding was a civil ac13 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 RE23 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 FUR5 THER VIOLATIONS; RETALIATION.— 

6 ‘‘(1) IN GENERAL.—A contractor or subcon7 tractor that violates subsection (a), (b), or (c) of sec8 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 per15 cent of the net profits of the contractor or sub16 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 subcon19 tractor was in such violation. 

20 ‘‘(2) REPEATED, OR WILLFUL, AND WIDE21 SPREAD VIOLATIONS.—If the violation of subsection 

22 (a), (b), or (c) of section 3144a of this title is re23 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 as4 sessed under paragraph (1) for a violation of sub5 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 Sec15 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 sub21 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 re3 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 Sec9 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 con13 tractor or subcontractor violated such order by 

14 not classifying the 1 or more laborer or me15 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 con21 tractor or subcontractor from the labor of 

22 the laborers or mechanics during that pe23 riod; and 

24 ‘‘(ii) the court shall assess damages in 

25 the amount determined under clause (i), 


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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 violations, 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.—Chap13 ter 65 of title 41, United States Code, is amended 

14 by inserting after section 6501 of such title the fol15 lowing: 

16 ‘‘§ 6501a. Employee test 

17 ‘‘(a) IN GENERAL.—For purposes of this chapter and 

18 except as provided in subsection (c), an individual per19 forming any labor, with respect to the manufacture or fur20 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 di4 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, profes11 sion, or business of the same nature as that involved 

12 in the labor performed. 

13 ‘‘(b) CLARIFICATIONS.— 

14 ‘‘(1) RELATIONSHIP WITH COMMON LAW.—Sub15 section (a) is not a codification of the common law 

16 and shall not be interpreted to reflect, or to be lim17 ited or restricted by, common law interpretations re18 garding when an individual is an employee of an19 other person. Subsection (a) shall be considered 

20 complete as written, and any judicial or agency in21 terpretation of such subsection shall be limited to 

22 the explicit requirements of such subsection. 

23 ‘‘(2) IMPACT OF WRITTEN OR OTHER AGREE24 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 con7 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 agree11 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 AGREE17 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 per20 son that restricts the individual from performing, ei21 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 

25 time; 


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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 agree6 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 con15 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 em19 ployee in accordance with this section.’’. 

20 (3) MISCLASSIFICATION AS A STANDALONE VIO21 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 ma4 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 VIOLA8 TIONS.—Section 6502 of title 41, United States 

9 Code, as amended by subparagraph (A), is fur10 ther amended by adding at the end the fol11 lowing: 

12 ‘‘(6) INCORPORATION TO FURTHER VIOLA13 TIONS.—The contractor shall not, for the purpose, 

14 in whole or in part, of facilitating, or evading detec15 tion of, a violation of this chapter, including a viola16 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 for22 eign or domestic corporation, partnership, lim23 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 para3 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 discrimi8 nate against an individual employed by the con9 tractor in the manufacture or furnishing of ma10 terials, supplies, articles, or equipment under 

11 the contract, because— 

12 ‘‘(i) such individual has filed any com13 plaint or instituted or caused to be insti14 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 con2 tractor; and 

3 ‘‘(II) was classified by the con4 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 DIS9 CHARGE OR DISCRIMINATION.— 

10 ‘‘(i) PRESUMPTION OF RETALIA11 TION.—Any action taken against an indi12 vidual, employed by the contractor or sub13 contractor in the manufacture or fur14 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 ex19 ercising the right of the individual pursu20 ant to paragraph (5) to not be 

21 misclassified, shall establish a rebuttable 

22 presumption that the action is discrimina23 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 es4 tablished when the complaining party dem5 onstrates that one of the actions or the 

6 classification described in such subpara7 graph was a motivating factor for such dis8 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 re17 classification orders and stop work or18 ders 

19 ‘‘(a) RECLASSIFICATION ORDERS.— 

20 ‘‘(1) IN GENERAL.—If the Secretary deter21 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 

25 labor, with respect to the manufacture or furnishing 


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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 com10 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 para14 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 para23 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 con4 test the order. 

5 ‘‘(B) REQUESTS.—A request under sub6 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 de20 termine whether to affirm, modify, or re21 voke the contested order. 

22 ‘‘(4) HEARINGS AND APPEALS.—Any person ag23 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 de2 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 ju8 risdiction as described in section 6507(d) for tem9 porary or permanent injunctive relief against any 

10 contractor that violates an order issued under para11 graph (1). A court shall issue such temporary or 

12 permanent injunctive relief if the Secretary has dem13 onstrated it is just and proper. 

14 ‘‘(6) SUCCESSFULLY DISPROVING OCCURRENCE

15 OF MISCLASSIFICATION.— 

16 ‘‘(A) IN GENERAL.—If contractor with re17 spect to whom an order was issued under para18 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 

25 (1) shall cease to be in effect; 


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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 individ6 uals; and 

7 ‘‘(iii) the Secretary of Labor, adminis8 trative law judge, or the court, as applica9 ble, shall award (and the Secretary of the 

10 Treasury shall, in accordance with sub11 paragraph (B), pay) to the contractor rea12 sonable fees and expenses of attorneys in 

13 the same manner as such fees and ex14 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 

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 con3 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 Sec8 retary shall issue— 

9 ‘‘(A) subject to subparagraph (B), an 

10 order against the contractor requiring the ces11 sation of all business operations of such con12 tractor at the location of the violation; or 

13 ‘‘(B) if an order described in subparagraph 

14 (A) has been previously issued against the con15 tractor by any Federal, State, or local agency 

16 for misclassifying an employee performing any 

17 labor, with respect to the manufacture or fur18 nishing of materials, supplies, articles, or equip19 ment under the contract, as not such an em20 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 oper24 ations of such contractor at all business loca25 tions of the contractor, including locations other 


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1 than the location where the misclassification oc2 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 lo10 cation at the place of business of the con11 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 para17 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 

25 court) shall remain in effect until the SecVerDate Sep 11 2014 22:42 Oct 26, 2020 Jkt 019200 PO 00000 Frm 00172 Fmt 6652 Sfmt 6201 E:\BILLS\S4738.IS S4738

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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 con4 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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1 may request a review by the Secretary to con2 test the order. 

3 ‘‘(B) REQUESTS.—A request under sub4 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 de18 termine whether to affirm, modify, or re19 voke the contested order. 

20 ‘‘(4) HEARINGS AND APPEALS.—Any person ag21 grieved by a determination of the Secretary under 

22 paragraph (3)(C)(ii) may— 

23 ‘‘(A) request a hearing to appeal such de24 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 ju6 risdiction as described in section 6507(d) for tem7 porary or permanent injunctive relief against any 

8 contractor that violates an order issued under para9 graph (1). A court shall issue such temporary or 

10 permanent injunctive relief if the Secretary has dem11 onstrated it is just and proper. 

12 ‘‘(6) COMPENSATION FOR LOST WORK.— 

13 ‘‘(A) IN GENERAL.—Subject to subpara14 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 em2 ployee described in this subparagraph is an in3 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 mate9 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 sub21 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 con3 tractor under subsection (a)(1) with re4 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 individ11 uals; and 

12 ‘‘(iii) the Secretary of Labor, adminis13 trative law judge, or court, as applicable, 

14 shall award (and the Secretary of the 

15 Treasury shall, in accordance with sub16 paragraph (B), pay) to the contractor— 

17 ‘‘(I) an amount equal to any de18 monstrable lost net profits resulting 

19 from the order, as demonstrated by 

20 clear and convincing evidence; and 

21 ‘‘(II) reasonable fees and ex22 penses of attorneys in the same man23 ner as such fees and expenses could 

24 be awarded under section 2412 of title 

25 28, United States Code, if the conVerDate Sep 11 2014 22:42 Oct 26, 2020 Jkt 019200 PO 00000 Frm 00177 Fmt 6652 Sfmt 6201 E:\BILLS\S4738.IS S4738

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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 RE13 QUIREMENTS.—Chapter 65 of title 41, United 

14 States Code, as amended by paragraph (5), is fur15 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 per4 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 con7 tractor was in such violation. 

8 ‘‘(2) REPEATED, OR WILLFUL, AND WIDE9 SPREAD VIOLATIONS.—If the violation of paragraph 

10 (5), (6), or (7) of section 6502 of this title is re11 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 as16 sessed under paragraph (1) for a violation of para17 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 

25 transfer the payment to the Secretary, in addition to 


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1 the amount to be paid from the account of the con2 tractor for the penalty. 

3 ‘‘(b) RECLASSIFICATION ORDERS.— 

4 ‘‘(1) CIVIL PENALTIES.—A contractor that vio5 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 hear13 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 pro16 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 con20 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 con3 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 VIO19 LATION.— 

20 (A) IN GENERAL.—Section 105 of the 

21 Family and Medical Leave Act of 1993 (29 

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 em3 ployer as not an employee of the employer for purposes 

4 of this title.’’. 

5 (B) INCORPORATION TO FURTHER VIOLA6 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 sub14 section (c)— 

15 ‘‘(1) incorporate or form, or assist in the incor16 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 WIDE16 SPREAD VIOLATIONS.—If a violation of sub17 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 subpara20 graph (A)(iii), the higher penalty of the pen21 alties described in such subparagraphs shall 

22 apply. 

23 ‘‘(C) PAYMENT OF PENALTIES.—Any pen24 alty assessed under subparagraph (A) for a vio25 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 sub8 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 RETALIA14 TION.—Section 105(b) of the Family and Medical 

15 Leave Act of 1993 (29 U.S.C. 2615(b)) is amend16 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 redesig24 nated, by striking ‘‘; or’’ and inserting a semi25 colon; 


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1 (D) in subparagraph (C), as so redesig2 nated, by striking the period at the end and in3 serting ‘‘; or’’; and 

4 (E) by adding at the end the following: 

5 ‘‘(D)(i) is required, pursuant to the enact6 ment of the Worker Flexibility and Small Busi7 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 en12 actment of the Worker Flexibility and Small 

13 Business Protection Act of 2020. 

14 ‘‘(2) RULES REGARDING UNLAWFUL DIS15 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 de19 scribed in any of subparagraph (A), (B), or (C) 

20 of paragraph (1), including taking any such ac21 tion with respect to exercising the right of an 

22 employee pursuant to subsection (c) to not be 

23 misclassified, shall establish a rebuttable pre24 sumption that the action is discrimination 


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1 against the individual in violation of paragraph 

2 (1). 

3 ‘‘(B) MOTIVATING FACTOR.—Unlawful dis4 charge or other discrimination against an em5 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 ‘em19 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 sec6 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 deter12 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 em19 ployer to immediately classify the 1 or more in20 dividuals as eligible employees of the employer; 

21 and 

22 ‘‘(B) the employer shall immediately com23 ply with the order issued under subparagraph 

24 (A) or shall otherwise be in violation of section 

25 105(c). 


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1 ‘‘(2) ORDERS.—An order issued under para2 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 con16 test the order. 

17 ‘‘(B) REQUESTS.—A request under sub18 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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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 de9 termine whether to affirm, modify, or re10 voke the contested order. 

11 ‘‘(4) HEARINGS AND APPEALS.—Any person ag12 grieved by a determination of the Secretary under 

13 paragraph (3)(C)(ii) may— 

14 ‘‘(A) request a hearing to appeal such de15 termination to an administrative law judge; and 

16 ‘‘(B) appeal an order of an administrative 

17 law judge under subparagraph (A) to any Fed18 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 para22 graph (1). A court shall issue such relief if the Sec23 retary has demonstrated it is just and proper. 

24 ‘‘(6) SUCCESSFULLY DISPROVING OCCURRENCE

25 OF MISCLASSIFICATION.— 


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1 ‘‘(A) IN GENERAL.—If an employer with 

2 respect to whom an order was issued under 

3 paragraph (1) successfully proves through a re4 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 individ16 uals; and 

17 ‘‘(iii) the Secretary of Labor, adminis18 trative law judge, or court, as applicable, 

19 shall award (and the Secretary of the 

20 Treasury shall, in accordance with sub21 paragraph (B), pay) to the employer rea22 sonable fees and expenses of attorneys in 

23 the same manner as such fees and ex24 penses could be awarded under section 

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


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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 em13 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 ces21 sation of all business operations of such em22 ployer at the location of the violation; or 

23 ‘‘(B) if an order described in subparagraph 

24 (A) has been previously issued against the em25 ployer by any Federal, State, or local agency 


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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 re5 quiring the cessation of all business operations 

6 of such employer at all business locations of the 

7 employer, including locations other than the lo8 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 lo16 cation at the place of business of the em17 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 para23 graph (4); and 

24 ‘‘(II) until the Secretary issues a 

25 release order under subparagraph (B). 


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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 Sec7 retary issues another order releasing the 

8 order issued under such paragraph upon a 

9 finding by the Secretary that the em10 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 

25 Secretary shall reinstate the order issued 


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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 con7 test the order. 

8 ‘‘(B) REQUESTS.—A request under sub9 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 de23 termine whether to affirm, modify, or re24 voke the contested order. 


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1 ‘‘(4) HEARING AND APPEALS.—Any person ag2 grieved by a determination of the Secretary under 

3 paragraph (3)(C)(ii) may— 

4 ‘‘(A) request a hearing to appeal such de5 termination to an administrative law judge; and 

6 ‘‘(B) appeal an order of an administrative 

7 law judge under subparagraph (A) to any Fed8 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 para12 graph (1). A court shall issue such relief if the Sec13 retary has demonstrated it is just and proper. 

14 ‘‘(6) COMPENSATION FOR LOST WORK.— 

15 ‘‘(A) IN GENERAL.—Subject to subpara16 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 em20 ployee ceasing as a result of such order, the 

21 compensation that would be owed to such em22 ployee if the order was not issued. 

23 ‘‘(B) LIMITATION.—Compensation paid 

24 under subparagraph (A) shall be for each day, 

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 em15 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 individ23 uals; and 

24 ‘‘(iii) the Secretary of Labor, adminis25 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 sub3 paragraph (B), pay) to the employer— 

4 ‘‘(I) an amount equal to any de5 monstrable lost net profits resulting 

6 from the order, as demonstrated by 

7 clear and convincing evidence; and 

8 ‘‘(II) reasonable fees and ex9 penses of attorneys in the same man10 ner as such fees and expenses could 

11 be awarded under section 2412 of title 

12 28, United States Code, if the em13 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 

25 Family and Medical Leave Act of 1993 (29 


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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 RECLASSI5 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 pro18 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, dur22 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 eli2 gible employees during that period; and 

3 ‘‘(ii) if the court determines the em4 ployer so violated the order during that pe5 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 dam11 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 PRO7 TECTION THROUGH SHARED 

8 RESPONSIBILITY FOR WORK9 ERS’ RIGHTS 

10 SEC. 201. GENERAL SHARED RESPONSIBILITY FOR WORK11 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 

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 nar6 rowing of, any such interpretations; and 

7 ‘‘(iii) is not a codification of the com8 mon law and shall not be interpreted to re9 flect, or to be limited or restricted by, com10 mon law interpretations regarding whether 

11 a person is an employer of a given em12 ployee or whether multiple persons are em13 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 defini21 tion of ‘employee’ under subsection (e), and the 

22 definition of ‘employ’ under subsection (g). 

23 ‘‘(C) ADDITIONAL MULTIPLE EMPLOYER

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1 ers, acting directly or indirectly, with respect to 

2 an employee if— 

3 ‘‘(i) each such person directly or indi4 rectly benefits or seeks to directly or indi5 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 em10 ployment of the employee, including 

11 through an intermediary; 

12 ‘‘(II) each such person exerts func13 tional direction or control, directly or indi14 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 ca18 pable, without regard as to whether such 

19 capability is used, of directly or indi20 rectly— 

21 ‘‘(aa) exerting direction or con22 trol over any material term or condi23 tion of employment of the employee; 

24 ‘‘(bb) ensuring compliance with 

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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 rea9 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 em13 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 expan23 sion of, all relevant judicial and agen24 cy interpretations in existence on the 

25 date of enactment of the Worker 


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1 Flexibility and Small Business Protec2 tion Act of 2020 regarding which per3 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 inter10 pretations; and 

11 ‘‘(III) is not a codification of the 

12 common law and shall not be inter13 preted to reflect, or to be limited or 

14 restricted by, common law interpreta15 tions regarding whether a person is 

16 an employer of a given employee or 

17 whether multiple persons are employ18 ers of a given employee. 

19 ‘‘(ii) IN GENERAL.—Two or more per20 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 accord24 ance with the meanings given the term 


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1 ‘employer’ under subparagraph (A) and 

2 the term ‘employee’ under paragraph (3). 

3 ‘‘(iii) ADDITIONAL MULTIPLE EM4 PLOYER DETERMINATIONS.—Notwith5 standing clause (ii), 2 or more persons 

6 shall be employers, acting directly or indi7 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 perform11 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 em16 ployee, including through an inter17 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 em22 ployee, including through an inter23 mediary; 

24 ‘‘(cc) each such person is legally 

25 capable, without regard as to whether 


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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 per14 formance of such labor; 

15 ‘‘(dd) based on an act or omis16 sion of the 2 or more persons, the em17 ployee reasonably believed that such 

18 persons were the employee’s employ19 ers and the employee did not have ac20 tual knowledge that any of the per21 sons were not the employee’s employer 

22 under this Act; or 

23 ‘‘(ee) based on the totality of the 

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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 ab7 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 

25 structure; 


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1 ‘‘(II) shall not be interpreted by any 

2 court or agency as a restriction on, or nar3 rowing of, any such interpretations; and 

4 ‘‘(III) is not a codification of the com5 mon law and shall not be interpreted to re6 flect, or to be limited or restricted by, com7 mon law interpretations regarding whether 

8 a person is an employer of a given em9 ployee or whether multiple persons are em10 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 para18 graph (6). 

19 ‘‘(iii) ADDITIONAL MULTIPLE EMPLOYER

20 DETERMINATIONS.—Notwithstanding clause 

21 (ii), 2 or more persons shall be employers, act22 ing directly or indirectly, with respect to an em23 ployee if— 

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1 rectly benefit from the performance of 

2 labor by an employee; and 

3 ‘‘(II)(aa) each such person exerts ac4 tual direction or control, directly or indi5 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 em12 ployee, including through an inter13 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 

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 per4 formance of such labor; or 

5 ‘‘(dd) based on an act or omis6 sion of the 2 or more persons, the em7 ployee reasonably believed that such 

8 persons were the employee’s employ9 ers and the employee did not have ac10 tual knowledge that any of the per11 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 sub22 section— 

23 ‘‘(A) is to be read as an addition to, and 

24 an augmentation and expansion of, all relevant 

25 judicial and agency interpretations in existence 


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1 on the date of enactment of the Worker Flexi2 bility and Small Business Protection Act of 

3 2020 regarding which persons qualify as opera4 tors in relation to a given miner under this Act, 

5 including in a multiple employer or joint em6 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 inter13 pretations regarding whether a person is an em14 ployer of a given miner or whether multiple per15 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 op22 erator under this Act in relation to a given miner. 

23 ‘‘(3) ADDITIONAL MULTIPLE EMPLOYER DE24 TERMINATIONS.—Notwithstanding paragraph (2), 2 

25 or more persons shall be employers, acting directly 


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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 per5 forming labor for the operator; 

6 ‘‘(B) each such person directly or indi7 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 di11 rection or control, directly or indirectly, over 

12 any material term or condition of employment 

13 of the miner, including through an inter14 mediary; 

15 ‘‘(ii) each such person exerts functional di16 rection or control, directly or indirectly, over 

17 any material term or condition of employment 

18 of the miner, including through an inter19 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 employ25 ment of the miner; 


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1 ‘‘(II) ensuring compliance with the re2 quirements of this Act with regard to the 

3 miner’s performance of such labor; or 

4 ‘‘(III) upholding the rights and pro5 tections of this Act with regard to the min6 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 WORK14 ER PROTECTION ACT.—Section 5 of the Migrant and Sea15 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 EM20 PLOYERS AND AGRICULTURAL ASSOCIATIONS FOR

21 WORKERS OF FARM LABOR CONTRACTORS.—In any 

22 case where an agricultural employer or an agricul23 tural association has entered into an agreement with 

24 a farm labor contractor to provide migrant agricul25 tural workers or seasonal agricultural workers to the 


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1 employer or association, both the agricultural em2 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 em22 ployer or joint employment structure; 

23 ‘‘(ii) shall not be interpreted by any 

24 court or agency as a restriction on, or nar25 rowing of, any such interpretations; and 


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1 ‘‘(iii) is not a codification of the com2 mon law and shall not be interpreted to re3 flect, or to be limited or restricted by, com4 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 sea13 sonal agricultural worker, if based on the appli14 cation of the definitions of ‘agricultural associa15 tion’, ‘agricultural employer’, ‘agricultural em16 ployment’, ‘employ’, ‘farm labor contractor’, 

17 ‘migrant agricultural worker’, and ‘seasonal ag18 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 rela22 tion to a given migrant agricultural worker or 

23 seasonal agricultural worker. 

24 ‘‘(C) ADDITIONAL MULTIPLE EMPLOYER

25 DETERMINATIONS.—Notwithstanding subparaVerDate Sep 11 2014 22:42 Oct 26, 2020 Jkt 019200 PO 00000 Frm 00215 Fmt 6652 Sfmt 6201 E:\BILLS\S4738.IS S4738

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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 mi4 grant agricultural worker or seasonal agricul5 tural worker if— 

6 ‘‘(i) one of the persons is a farm labor 

7 contractor, agricultural employer, or agri8 cultural association and the migrant agri9 cultural worker or seasonal agricultural 

10 worker is performing labor for such per11 son; 

12 ‘‘(ii) each such person directly or indi13 rectly benefits or seeks to directly or indi14 rectly benefit from the performance of 

15 labor by the worker; and 

16 ‘‘(iii)(I) each such person exerts ac17 tual direction or control, directly or indi18 rectly, over any material term or condition 

19 of employment of the worker, including 

20 through an intermediary; 

21 ‘‘(II) each such person exerts func22 tional direction or control, directly or indi23 rectly, over any material term or condition 

24 of employment of the worker, including 

25 through an intermediary; 


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1 ‘‘(III) each such person is legally ca2 pable, without regard as to whether such 

3 capability is used, of directly or indi4 rectly— 

5 ‘‘(aa) exerting direction or con6 trol over any material term or condi7 tion of employment of the worker; 

8 ‘‘(bb) ensuring compliance with 

9 the requirements of this Act with re10 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 reason18 ably believed that each such person was a 

19 farm labor contractor, agricultural em20 ployer, or agricultural association that em21 ployed the worker and the worker did not 

22 have actual knowledge that any of the per23 sons were not the worker’s employer for 

24 purposes of this this Act. 


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•S 4738 IS

1 ‘‘(3) INTERACTION WITH REGISTRATION REQUIRE2 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 con5 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 re11 lated entities 

12 ‘‘(a) MULTIPLE EMPLOYERS.— 

13 ‘‘(1) RULE OF INTERPRETATION.—This sub14 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 Flexi19 bility and Small Business Protection Act of 

20 2020 regarding which persons qualify as em21 ployers in relation to a given laborer or me22 chanic under this subchapter, including in a 

23 multiple employer or joint employment struc24 ture; 


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•S 4738 IS

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 inter7 pretations regarding whether a person is an em8 ployer of a given laborer or mechanic or wheth9 er multiple persons are employers of a laborer 

10 or mechanic. 

11 ‘‘(2) ADDITIONAL MULTIPLE EMPLOYER DE12 TERMINATIONS.—Two or more persons, acting di13 rectly or indirectly, shall be responsible for the 

14 rights and protections of this subchapter with re15 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 sub18 chapter applies and the laborer or mechanic is 

19 performing labor under such contract; 

20 ‘‘(B) each such person directly or indi21 rectly benefits or seeks to directly or indirectly 

22 benefit from the performance of labor by the la23 borer or mechanic; and 

24 ‘‘(C)(i) each such person exerts actual di25 rection or control, directly or indirectly, over 


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•S 4738 IS

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 di5 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 employ14 ment of the laborer or mechanic; 

15 ‘‘(II) ensuring compliance with the re16 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 pro20 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 rea25 sonably believed that such persons were the laVerDate Sep 11 2014 22:42 Oct 26, 2020 Jkt 019200 PO 00000 Frm 00220 Fmt 6652 Sfmt 6201 E:\BILLS\S4738.IS S4738

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•S 4738 IS

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 me4 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 re9 lated entities 

10 ‘‘(a) MULTIPLE EMPLOYERS.— 

11 ‘‘(1) RULE OF INTERPRETATION.—This sub12 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 Flexi17 bility and Small Business Protection Act of 

18 2020 regarding which persons qualify as em19 ployers in relation to a given service employee 

20 under this chapter, including in a multiple em21 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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•S 4738 IS

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 inter4 pretations regarding whether a person is an em5 ployer of a given service employee or whether 

6 multiple persons are employers of a service em7 ployee. 

8 ‘‘(2) ADDITIONAL MULTIPLE EMPLOYER DE9 TERMINATIONS.—Two or more persons, acting di10 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 per16 forming labor under such contract; 

17 ‘‘(B) each such person directly or indi18 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 di22 rection or control, directly or indirectly, over 

23 any material term or condition of employment 

24 of the service employee, including through an 

25 intermediary; 


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•S 4738 IS

1 ‘‘(ii) each such person exerts functional di2 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 employ11 ment of the service employee; 

12 ‘‘(II) ensuring compliance with the re13 quirements of this chapter with regard to 

14 the service employee’s performance of such 

15 labor; or 

16 ‘‘(III) upholding the rights and pro17 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 reason22 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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•S 4738 IS

1 persons were not the service employee’s em2 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 re7 lated entities 

8 ‘‘(a) MULTIPLE EMPLOYERS.— 

9 ‘‘(1) RULE OF INTERPRETATION.—This sub10 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 Flexi15 bility and Small Business Protection Act of 

16 2020 regarding which persons qualify as em17 ployers in relation to a given individual per18 forming labor in the manufacture or furnishing 

19 of materials, supplies, articles, or equipment 

20 under a contract subject to this chapter, includ21 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, 

25 any such interpretations; and 


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•S 4738 IS

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 inter4 pretations regarding whether a person is an em5 ployer of an individual described in subpara6 graph (A) or whether multiple persons are em7 ployers of such individual. 

8 ‘‘(2) ADDITIONAL MULTIPLE EMPLOYER DE9 TERMINATIONS.—Two or more persons, acting di10 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 manufac16 ture or furnishing of materials, supplies, arti17 cles, or equipment under the contract; 

18 ‘‘(B) each such person directly or indi19 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 di23 rection or control, directly or indirectly, over 

24 any material term or condition of employment 

25 of the individual; 


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•S 4738 IS

1 ‘‘(ii) each such person exerts functional di2 rection or control, directly or indirectly, over 

3 any material term or condition of employment 

4 of the individual, including through an inter5 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 employ11 ment of the individual; 

12 ‘‘(II) ensuring compliance with the re13 quirements of this chapter with regard to 

14 the individual’s performance of such labor; 

15 or 

16 ‘‘(III) upholding the rights and pro17 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 be21 lieved that such persons were the individual’s 

22 employers and the individual did not have ac23 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 expan11 sion of, all relevant judicial and agen12 cy interpretations in existence on the 

13 date of enactment of the Worker 

14 Flexibility and Small Business Protec15 tion Act of 2020 regarding which per16 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 inter23 pretations; and 

24 ‘‘(III) is not a codification of the 

25 common law and shall not be interVerDate Sep 11 2014 22:42 Oct 26, 2020 Jkt 019200 PO 00000 Frm 00227 Fmt 6652 Sfmt 6201 E:\BILLS\S4738.IS S4738

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•S 4738 IS

1 preted to reflect, or to be limited or 

2 restricted by, common law interpreta3 tions regarding whether a person is 

4 an employer of a given employee or 

5 whether multiple persons are employ6 ers of a given employee. 

7 ‘‘(ii) IN GENERAL.—Two or more per8 sons shall be employers with respect to an 

9 employee if each such person individually, 

10 acting directly or indirectly, is an em11 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 EM17 PLOYER DETERMINATIONS.—Notwith18 standing clause (ii), 2 or more persons 

19 shall be employers, acting directly or indi20 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 perform24 ance of labor by an employee; and 


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•S 4738 IS

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 em5 ployee, including through an inter6 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 em11 ployee, including through an inter12 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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•S 4738 IS

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 omis5 sion of the 2 or more persons, the em6 ployee reasonably believed that such 

7 persons were the employee’s employ8 ers and the employee did not have ac9 tual knowledge that any of the per10 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 In14 ternal Revenue Code of 1986, as added by section 

15 102(j), is amended by adding at the end the fol16 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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•S 4738 IS

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.—Sec13 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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•S 4738 IS

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 protec5 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 sub8 sidiary is responsible for the rights and protec9 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 fol14 lowing: 

15 ‘‘(b) SUBSIDIARIES.—An employer shall also be re16 sponsible for the rights and protections of this Act with 

17 regard to a miner of a coal or other mine who is an em18 ployee of a subsidiary of the employer, or subsidiary under 

19 a subsidiary, in any case where the subsidiary is respon20 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 Mi24 grant and Seasonal Agricultural Worker Protection 

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


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•S 4738 IS

1 201(e), is further amended by adding at the end the 

2 following: 

3 ‘‘(4) SUBSIDIARIES.—An entity shall also be re4 sponsible for the rights and protections of this Act 

5 with regard to an individual who is a migrant agri6 cultural worker or seasonal agricultural worker em7 ployed by a farm labor contractor, agricultural em8 ployer, or agricultural association, that is a sub9 sidiary of the entity, or a subsidiary under such a 

10 subsidiary, in any case where the subsidiary is re11 sponsible for the rights and protections of this Act 

12 for the migrant agricultural worker or seasonal agri13 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 fol17 lowing: 

18 ‘‘(b) SUBSIDIARIES.—An entity shall also be respon19 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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•S 4738 IS

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 amend4 ed by adding at the end the following: 

5 ‘‘(b) SUBSIDIARIES.—An entity shall also be respon6 sible for the rights and protections of this chapter with 

7 regard to a service employee of a contractor that is a sub8 sidiary of the entity, or a subsidiary under such a sub9 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 add15 ing at the end the following: 

16 ‘‘(b) SUBSIDIARIES.—An entity shall also be respon17 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 indi22 vidual.’’. 

23 (9) FAMILY AND MEDICAL LEAVE ACT OF

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

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


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•S 4738 IS

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 protec5 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 sub8 sidiary is responsible for the rights and protec9 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 serv20 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 

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


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236 

•S 4738 IS

1 102(a)(8)(C), is further amended by adding at the 

2 end the following: 

3 ‘‘(g) OWNERS, DIRECTORS, OFFICERS, AND MAN4 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 de10 termines, based on the particular facts and cir11 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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•S 4738 IS

1 may be assessed against the employer for such viola2 tion.’’. 

3 (2) NATIONAL LABOR RELATIONS ACT.—Sec4 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 MAN8 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 

25 of, or range for, a civil penalty for a violation under 


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238 

•S 4738 IS

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 viola5 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 amend9 ed by section 102(c)(7)(B), is amended by inserting 

10 after subsection (k) the following: 

11 ‘‘(m) OWNERS, DIRECTORS, OFFICERS, AND MAN12 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, di18 rector, officer, or managing agent of the employer if 

19 the Secretary or court determines, based on the par20 ticular facts and circumstances presented, that per21 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 

25 a violation; or 


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•S 4738 IS

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 viola10 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 fol17 lowing: 

18 ‘‘SEC. 118. LIABILITY OF OWNERS, DIRECTORS, OFFICERS, 

19 MANAGING AGENTS, AND LARGE SHARE20 HOLDERS; INDEMNIFICATION. 

21 ‘‘(a) OWNERS, DIRECTORS, OFFICERS, AND MAN22 AGING AGENTS.— 

23 ‘‘(1) IN GENERAL.—In any action or proceeding 

24 for a violation of this Act including any mandatory 

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


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•S 4738 IS

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 deter5 mines, based on the particular facts and cir6 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 viola21 tion.’’. 

22 (5) MIGRANT AND SEASONAL AGRICULTURAL

23 WORKER PROTECTION ACT.—Title V of the Migrant 

24 and Seasonal Agricultural Worker Protection Act 

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


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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 SHARE5 HOLDERS; INDEMNIFICATION. 

6 ‘‘(a) CIVIL PENALTY LIABILITY FOR OWNERS, DI7 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, agricul13 tural employer, or agricultural association, the Sec14 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, agri17 cultural employer, or agricultural association if the 

18 Secretary or court determines, based on the par19 ticular facts and circumstances presented, that per20 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 viola10 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, DI16 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 par23 ticular facts and circumstances presented, that per24 sonal liability for the violation is warranted because 

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 subcon13 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, re19 spectively; and 

20 (B) by inserting after section 6706 the fol21 lowing: 


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1 ‘‘§ 6707. Civil penalties assessed against owners, di2 rectors, officers, managing agents, and 

3 large shareholders; indemnification 

4 ‘‘(a) CIVIL PENALTY LIABILITY FOR OWNERS, DI5 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 de11 termines, based on the particular facts and cir12 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, 

25 be the amount or range for the civil penalty that 


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1 may be assessed against the contractor for such vio2 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 de15 termines, based on the particular facts and cir16 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 vio7 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 MAN16 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 de22 termines, based on the particular facts and cir23 cumstances presented, that personal liability for the 

24 violation is warranted because the owner, director, 

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 viola13 tion.’’. 

14 (c) RESPONSIBILITIES OF 10 LARGEST SHARE15 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 fol20 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 share24 holders of an employer, as determined by the fair 

25 value for their beneficial interest as of the beginning 


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1 of the period during which the violation occurred, 

2 shall— 

3 ‘‘(A) jointly and severally be personally lia4 ble for all violations of this Act and for all dam5 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 viola11 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 share15 holder under paragraph (1).’’. 

16 (2) NATIONAL LABOR RELATIONS ACT.—Sec17 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 share23 holders of an employer, as determined by the fair 

24 value for their beneficial interest as of the beginning 


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1 of the period during which the violation occurred, 

2 shall— 

3 ‘‘(A) jointly and severally be personally lia4 ble for all violations of this Act and for all dam5 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 viola11 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 share15 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 amend19 ed by subsection (b)(3), is further amended by add20 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 

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


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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 lia5 ble for all violations of this Act and for all dam6 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 viola12 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 share16 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 

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


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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 lia7 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 viola14 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 share18 holder under paragraph (1).’’. 

19 (5) MIGRANT AND SEASONAL AGRICULTURAL

20 WORKER PROTECTION ACT.—Section 505 of the Mi21 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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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 agricul5 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 lia9 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 associa18 tion for all violations, with the farm labor con19 tractor, agricultural employer, or agricultural 

20 association (respectively) responsible for not 

21 more than 90 percent. 

22 ‘‘(2) NO REIMBURSEMENT.—A farm labor con23 tractor, agricultural employer, or agricultural asso24 ciation may not refund in any way any amounts paid 

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


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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 de9 termined by the fair value for their beneficial inter10 est as of the beginning of the period during which 

11 the violation occurred, shall— 

12 ‘‘(A) jointly and severally be personally lia13 ble for all violations of this subchapter, and for 

14 all damages awarded and civil penalties as15 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 subcon20 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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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 share10 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 lia15 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 vio22 lations, with the contractor responsible for not 

23 more than 90 percent. 


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1 ‘‘(2) NO REIMBURSEMENT.—A contractor may 

2 not refund in any way any amounts paid by a share3 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 share11 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 lia16 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 vio23 lations, with the contractor responsible for not 

24 more than 90 percent. 


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1 ‘‘(2) NO REIMBURSEMENT.—A contractor may 

2 not refund in any way any amounts paid by a share3 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 share12 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 lia17 ble for all violations of this Act and for all dam18 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 viola24 tions, with the employer responsible for not 

25 more than 90 percent. 


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1 ‘‘(2) NO REIMBURSEMENT.—An employer may 

2 not refund in any way any amounts paid by a share3 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 em13 ployee, in any case where a franchisee of the 

14 franchisor is responsible for the rights and protec15 tions of this Act for the employee.’’. 

16 (2) INDEMNIFICATION.—Section 16 of the Fair 

17 Labor Standards Act of 1938, as amended by sec18 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 

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


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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 INDEMNIFICA9 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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1 ‘‘(i) any indemnification waiver ob2 tained shall be null and void; and 

3 ‘‘(ii) the franchisor shall be subject to 

4 a civil penalty of $100,000. 

5 ‘‘(4) PROHIBITION ON RETALIATION.— 

6 ‘‘(A) IN GENERAL.—A franchisor shall not 

7 end a franchise agreement with, take adverse 

8 action in relation to, or otherwise discriminate 

9 against, a franchisee for pursuing indemnifica10 tion under this subsection. 

11 ‘‘(B) REMEDY AND CIVIL PENALTY.—Any 

12 franchisor who violates subparagraph (A) shall 

13 be subject to a civil penalty of $100,000.’’. 

14 (b) NATIONAL LABOR RELATIONS ACT.— 

15 (1) IN GENERAL.—Section 2(2) of the National 

16 Labor Relations Act (29 U.S.C. 152(2)), as amend17 ed by section 202(a)(2), is further amended by add18 ing at the end the following: 

19 ‘‘(E) FRANCHISORS AND FRANCHISEES.—A 

20 franchisor shall also be responsible for the rights 

21 and protections of this Act with regard to an em22 ployee, in any case where a franchisee of the 

23 franchisor is responsible for the rights and protec24 tions of this Act for the employee.’’. 


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1 (2) INDEMNIFICATION.—Section 12 of the Na2 tional Labor Relations Act (29 U.S.C. 162), as 

3 amended by section 202(c)(2), is further amended 

4 by adding at the end the following: 

5 ‘‘(g) FRANCHISEES AND FRANCHISORS.— 

6 ‘‘(1) INDEMNIFICATION BY FRANCHISOR.—An 

7 employer or entity that is found to be in violation of 

8 this Act and is a franchisee shall have the right to 

9 indemnification as described in paragraph (2) from 

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

11 ‘‘(A) at the behest of the franchisor; 

12 ‘‘(B) at the direction of the franchisor; 

13 ‘‘(C) pursuant to any policies, agreements, 

14 or contractual obligations emanating from the 

15 franchisor; or 

16 ‘‘(D) due to other direct or indirect control 

17 or pressure from the franchisor. 

18 ‘‘(2) PROCESS FOR AND TYPE OF INDEMNIFICA19 TION.—Indemnification under paragraph (1)— 

20 ‘‘(A) may be sought by a franchisee in any 

21 court of competent jurisdiction; and 

22 ‘‘(B) shall include a full recovery from the 

23 franchisor of all compensatory and punitive 

24 damages, civil monetary penalties, attorney’s 

25 fees, or other amounts required to be paid by 


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1 the franchisee as a result of the violation of this 

2 Act. 

3 ‘‘(3) PROHIBITION ON WAIVER.— 

4 ‘‘(A) IN GENERAL.—A franchisor shall not 

5 require or otherwise request a franchisee to 

6 waive the franchisee’s right to indemnification 

7 under this subsection. 

8 ‘‘(B) REMEDY AND CIVIL PENALTY.—If a 

9 franchisor violates subparagraph (A)— 

10 ‘‘(i) any indemnification waiver ob11 tained shall be null and void; and 

12 ‘‘(ii) the franchisor shall be subject to 

13 a civil penalty of $100,000. 

14 ‘‘(4) PROHIBITION ON RETALIATION.— 

15 ‘‘(A) IN GENERAL.—A franchisor shall not 

16 end a franchise agreement with, take adverse 

17 action in relation to, or otherwise discriminate 

18 against, a franchisee for pursuing indemnifica19 tion under this subsection. 

20 ‘‘(B) REMEDY AND CIVIL PENALTY.—Any 

21 franchisor who violates subparagraph (A) shall 

22 be subject to a civil penalty of $100,000.’’. 

23 (c) OCCUPATIONAL SAFETY AND HEALTH ACT OF

24 1970.— 


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1 (1) IN GENERAL.—Section 3(5) of the Occupa2 tional Safety and Health Act of 1970 (29 U.S.C. 

3 652(5)), as amended by section 202(a)(3), is further 

4 amended by adding at the end the following: 

5 ‘‘(F) FRANCHISORS AND FRANCHISEES.— 

6 A franchisor shall also be responsible for the 

7 rights and protections of this Act with regard 

8 to an employee, in any case where a franchisee 

9 of the franchisor is responsible for the rights 

10 and protections of this Act for the employee.’’. 

11 (2) INDEMNIFICATION.—Section 17 of the Oc12 cupational Safety and Health Act of 1970 (29 

13 U.S.C. 666), as amended by section 202(c)(3), is 

14 further amended by adding at the end the following: 

15 ‘‘(o) FRANCHISEES AND FRANCHISORS.— 

16 ‘‘(1) INDEMNIFICATION BY FRANCHISOR.—An 

17 employer or other entity that is a franchisee and is 

18 found to be in violation of this Act shall have the 

19 right to indemnification as described in paragraph 

20 (2) from the franchisor, in any case where the viola21 tion was— 

22 ‘‘(A) at the behest of the franchisor; 

23 ‘‘(B) at the direction of the franchisor; 


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1 ‘‘(C) pursuant to any policies, agreements, 

2 or contractual obligations emanating from the 

3 franchisor; or 

4 ‘‘(D) due to other direct or indirect control 

5 or pressure from the franchisor. 

6 ‘‘(2) PROCESS FOR AND TYPE OF INDEMNIFICA7 TION.—Indemnification under paragraph (1)— 

8 ‘‘(A) may be sought by a franchisee in any 

9 court of competent jurisdiction; and 

10 ‘‘(B) shall include a full recovery from the 

11 franchisor of all compensatory and punitive 

12 damages, civil monetary penalties, attorney’s 

13 fees, or other amounts required to be paid by 

14 the franchisee as a result of the violation of this 

15 Act. 

16 ‘‘(3) PROHIBITION ON WAIVER.— 

17 ‘‘(A) IN GENERAL.—A franchisor shall not 

18 require or otherwise request a franchisee to 

19 waive the franchisee’s right to indemnification 

20 under this subsection. 

21 ‘‘(B) REMEDY AND CIVIL PENALTY.—If a 

22 franchisor violates subparagraph (A)— 

23 ‘‘(i) any indemnification waiver ob24 tained shall be null and void; and 


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1 ‘‘(ii) the franchisor shall be subject to 

2 a civil penalty of $100,000. 

3 ‘‘(4) PROHIBITION ON RETALIATION.— 

4 ‘‘(A) IN GENERAL.—A franchisor shall not 

5 end a franchise agreement with, take adverse 

6 action in relation to, or otherwise discriminate 

7 against, a franchisee for pursuing indemnifica8 tion under this subsection. 

9 ‘‘(B) REMEDY AND CIVIL PENALTY.—Any 

10 franchisor who violates subparagraph (A) shall 

11 be subject to a civil penalty of $100,000.’’. 

12 (d) FEDERAL MINE SAFETY AND HEALTH ACT OF

13 1977.— 

14 (1) IN GENERAL.—Section 4B of the Federal 

15 Mine Safety and Health Act of 1977, as amended by 

16 section 202(a)(4), is further amended by adding at 

17 the end the following: 

18 ‘‘(c) FRANCHISORS AND FRANCHISEES.—A 

19 franchisor shall also be responsible for the rights and pro20 tections of this Act with regard to a miner, in any case 

21 where a franchisee of the franchisor is responsible for the 

22 rights and protections of this Act for the miner.’’. 

23 (2) INDEMNIFICATION.—Section 118 of the 

24 Federal Mine Safety and Health Act of 1977, as 


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1 amended by section 202(c)(4), is further amended 

2 by adding at the end the following: 

3 ‘‘(c) FRANCHISEES AND FRANCHISORS.— 

4 ‘‘(1) INDEMNIFICATION BY FRANCHISOR.—An 

5 operator or other entity that is found to be in viola6 tion of this Act and is a franchisee shall have the 

7 right to indemnification as described in paragraph 

8 (2) from the franchisor, in any case where the viola9 tion was— 

10 ‘‘(A) at the behest of the franchisor; 

11 ‘‘(B) at the direction of the franchisor; 

12 ‘‘(C) pursuant to any policies, agreements, 

13 or contractual obligations emanating from the 

14 franchisor; or 

15 ‘‘(D) due to other direct or indirect control 

16 or pressure from the franchisor. 

17 ‘‘(2) PROCESS FOR AND TYPE OF INDEMNIFICA18 TION.—Indemnification under paragraph (1)— 

19 ‘‘(A) may be sought by a franchisee in any 

20 court of competent jurisdiction; and 

21 ‘‘(B) shall include a full recovery from the 

22 franchisor of all compensatory and punitive 

23 damages, civil monetary penalties, attorney’s 

24 fees, or other amounts required to be paid by 


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•S 4738 IS

1 the franchisee as a result of the violation of this 

2 Act. 

3 ‘‘(3) PROHIBITION ON WAIVER.— 

4 ‘‘(A) IN GENERAL.—A franchisor shall not 

5 require or otherwise request a franchisee to 

6 waive the franchisee’s right to indemnification 

7 under this subsection. 

8 ‘‘(B) REMEDY AND CIVIL PENALTY.—If a 

9 franchisor violates subparagraph (A)— 

10 ‘‘(i) any indemnification waiver ob11 tained shall be null and void; and 

12 ‘‘(ii) the franchisor shall be subject to 

13 a civil penalty of $100,000. 

14 ‘‘(4) PROHIBITION ON RETALIATION.— 

15 ‘‘(A) IN GENERAL.—A franchisor shall not 

16 end a franchise agreement with, take adverse 

17 action in relation to, or otherwise discriminate 

18 against, a franchisee for pursuing indemnifica19 tion under this subsection. 

20 ‘‘(B) REMEDY AND CIVIL PENALTY.—Any 

21 franchisor who violates subparagraph (A) shall 

22 be subject to a civil penalty of $100,000.’’. 

23 (e) MIGRANT AND SEASONAL AGRICULTURAL WORK24 ER PROTECTION ACT.— 


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•S 4738 IS

1 (1) IN GENERAL.—Section 5(c) of the Migrant 

2 and Seasonal Agricultural Worker Protection Act, as 

3 amended by section 202(a)(5), is further amended 

4 by adding at the end the following: 

5 ‘‘(4) FRANCHISORS AND FRANCHISEES.—A 

6 franchisor shall also be responsible for the rights 

7 and protections of this Act with regard to an indi8 vidual who is a migrant agricultural worker or sea9 sonal agricultural worker employed by a farm labor 

10 contractor, agricultural employer, or agricultural as11 sociation, in any case where a franchisee of the 

12 franchisor is responsible for the rights and protec13 tions of this Act for the migrant agricultural worker 

14 or seasonal agricultural worker.’’. 

15 (2) INDEMNIFICATION.—Section 505 of the Mi16 grant and Seasonal Agricultural Worker Protection 

17 Act, as amended by section 202(c)(5), is further 

18 amended by adding at the end the following: 

19 ‘‘(c) FRANCHISEES AND FRANCHISORS.— 

20 ‘‘(1) INDEMNIFICATION BY FRANCHISOR.—A 

21 farm labor contractor, agricultural employer, agricul22 tural association, or other entity that is found to be 

23 in violation of this Act and is a franchisee shall have 

24 the right to indemnification as described in paraVerDate Sep 11 2014 22:42 Oct 26, 2020 Jkt 019200 PO 00000 Frm 00267 Fmt 6652 Sfmt 6201 E:\BILLS\S4738.IS S4738

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1 graph (2) from the franchisor, in any case where the 

2 violation was— 

3 ‘‘(A) at the behest of the franchisor; 

4 ‘‘(B) at the direction of the franchisor; 

5 ‘‘(C) pursuant to any policies, agreements, 

6 or contractual obligations emanating from the 

7 franchisor; or 

8 ‘‘(D) due to other direct or indirect control 

9 or pressure from the franchisor. 

10 ‘‘(2) PROCESS FOR AND TYPE OF INDEMNIFICA11 TION.—Indemnification under paragraph (1)— 

12 ‘‘(A) may be sought by a franchisee in any 

13 court of competent jurisdiction; and 

14 ‘‘(B) shall include a full recovery from the 

15 franchisor of all compensatory and punitive 

16 damages, civil monetary penalties, attorney’s 

17 fees, or other amounts required to be paid by 

18 the franchisee as a result of the violation of this 

19 Act. 

20 ‘‘(3) PROHIBITION ON WAIVER.— 

21 ‘‘(A) IN GENERAL.—A franchisor shall not 

22 require or otherwise request a franchisee to 

23 waive the franchisee’s right to indemnification 

24 under this subsection. 


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1 ‘‘(B) REMEDY AND CIVIL PENALTY.—If a 

2 franchisor violates subparagraph (A)— 

3 ‘‘(i) any indemnification waiver ob4 tained shall be null and void; and 

5 ‘‘(ii) the franchisor shall be subject to 

6 a civil penalty of $100,000. 

7 ‘‘(4) PROHIBITION ON RETALIATION.— 

8 ‘‘(A) IN GENERAL.—A franchisor shall not 

9 end a franchise agreement with, take adverse 

10 action in relation to, or otherwise discriminate 

11 against, a franchisee for pursuing indemnifica12 tion under this subsection. 

13 ‘‘(B) REMEDY AND CIVIL PENALTY.—Any 

14 franchisor who violates subparagraph (A) shall 

15 be subject to a civil penalty of $100,000.’’. 

16 (f) DAVIS-BACON ACT.— 

17 (1) IN GENERAL.—Section 3144b of title 40, 

18 United States Code, as amended by section 

19 202(a)(6), is further amended by adding at the end 

20 the following: 

21 ‘‘(c) FRANCHISORS AND FRANCHISEES.—A 

22 franchisor shall also be responsible for the rights and pro23 tections of this subchapter with regard to a laborer or me24 chanic in any case where a franchisee of the franchisor 


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1 is responsible for the rights and protections of this sub2 chapter for the laborer or mechanic.’’. 

3 (2) INDEMNIFICATION.—Section 3144c of title 

4 40, United States Code, as amended by section 

5 202(c)(6), is further amended by adding at the end 

6 the following: 

7 ‘‘(f) FRANCHISEES AND FRANCHISORS.— 

8 ‘‘(1) INDEMNIFICATION BY FRANCHISOR.—A 

9 contractor, subcontractor, or other entity that is 

10 found to be in violation of this subchapter and is a 

11 franchisee shall have the right to indemnification as 

12 described in paragraph (2) from the franchisor, in 

13 any case where the violation was— 

14 ‘‘(A) at the behest of the franchisor; 

15 ‘‘(B) at the direction of the franchisor; 

16 ‘‘(C) pursuant to any policies, agreements, 

17 or contractual obligations emanating from the 

18 franchisor; or 

19 ‘‘(D) due to other direct or indirect control 

20 or pressure from the franchisor. 

21 ‘‘(2) PROCESS FOR AND TYPE OF INDEMNIFICA22 TION.—Indemnification under paragraph (1)— 

23 ‘‘(A) may be sought by a franchisee in any 

24 court of competent jurisdiction; and 


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1 ‘‘(B) shall include a full recovery from the 

2 franchisor of all compensatory and punitive 

3 damages, civil monetary penalties, attorney’s 

4 fees, or other amounts required to be paid by 

5 the franchisee as a result of the violation of this 

6 subchapter. 

7 ‘‘(3) PROHIBITION ON WAIVER.— 

8 ‘‘(A) IN GENERAL.—A franchisor shall not 

9 require or otherwise request a franchisee to 

10 waive the franchisee’s right to indemnification 

11 under this subsection. 

12 ‘‘(B) REMEDY AND CIVIL PENALTY.—If a 

13 franchisor violates subparagraph (A)— 

14 ‘‘(i) any indemnification waiver ob15 tained shall be null and void; and 

16 ‘‘(ii) the franchisor shall be subject to 

17 a civil penalty of $100,000. 

18 ‘‘(4) PROHIBITION ON RETALIATION.— 

19 ‘‘(A) IN GENERAL.—A franchisor shall not 

20 end a franchise agreement with, take adverse 

21 action in relation to, or otherwise discriminate 

22 against, a franchisee for pursuing indemnifica23 tion under this subsection. 


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1 ‘‘(B) REMEDY AND CIVIL PENALTY.—Any 

2 franchisor who violates subparagraph (A) shall 

3 be subject to a civil penalty of $100,000.’’. 

4 (g) MCNAMARA-O’HARA SERVICE CONTRACT ACT.— 

5 (1) IN GENERAL.—Section 6701a of title 41, 

6 United States Code, as amended by section 

7 202(a)(7), is further amended by adding at the end 

8 the following: 

9 ‘‘(c) FRANCHISORS AND FRANCHISEES.—A 

10 franchisor shall also be responsible for the rights and pro11 tections of this chapter with regard to a service employee 

12 in any case where a franchisee of the franchisor is respon13 sible for the rights and protections of this chapter for the 

14 service employee.’’. 

15 (2) INDEMNIFICATION.—Section 6707 of title 

16 41, United States Code, as amended by section 

17 202(c)(7), is further amended by adding at the end 

18 the following: 

19 ‘‘(c) FRANCHISEES AND FRANCHISORS.— 

20 ‘‘(1) INDEMNIFICATION BY FRANCHISOR.—A 

21 contractor, subcontractor, or other entity that is 

22 found to be in violation of this chapter and is a 

23 franchisee shall have the right to indemnification as 

24 described in paragraph (2) from the franchisor, in 

25 any case where the violation was— 


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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 INDEMNIFICA9 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 chapter. 

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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1 ‘‘(i) any indemnification waiver ob2 tained shall be null and void; and 

3 ‘‘(ii) the franchisor shall be subject to 

4 a civil penalty of $100,000. 

5 ‘‘(4) PROHIBITION ON RETALIATION.— 

6 ‘‘(A) IN GENERAL.—A franchisor shall not 

7 end a franchise agreement with, take adverse 

8 action in relation to, or otherwise discriminate 

9 against, a franchisee for pursuing indemnifica10 tion under this subsection. 

11 ‘‘(B) REMEDY AND CIVIL PENALTY.—Any 

12 franchisor who violates subparagraph (A) shall 

13 be subject to a civil penalty of $100,000.’’. 

14 (h) WALSH-HEALEY PUBLIC CONTRACTS ACT.— 

15 (1) IN GENERAL.—Section 6501b of title 41, 

16 United States Code, as amended by section 

17 202(a)(8), is further amended by adding at the end 

18 the following: 

19 ‘‘(c) FRANCHISORS AND FRANCHISEES.—A 

20 franchisor shall also be responsible for the rights and pro21 tections of this chapter with regard to an individual em22 ployed under a contract to which this chapter applies, in 

23 any case where a franchisee of the franchisor is respon24 sible for the rights and protections of this chapter for the 

25 individual.’’. 


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1 (2) INDEMNIFICATION.—Section 6506b of title 

2 41, United States Code, as amended by section 

3 202(c)(8), is further amended by adding at the end 

4 the following: 

5 ‘‘(f) FRANCHISEES AND FRANCHISORS.— 

6 ‘‘(1) INDEMNIFICATION BY FRANCHISOR.—A 

7 contractor, subcontractor, or other entity that is 

8 found to be in violation of this chapter and is a 

9 franchisee shall have the right to indemnification as 

10 described in paragraph (2) from the franchisor, in 

11 any case where the violation was— 

12 ‘‘(A) at the behest of the franchisor; 

13 ‘‘(B) at the direction of the franchisor; 

14 ‘‘(C) pursuant to any policies, agreements, 

15 or contractual obligations emanating from the 

16 franchisor; or 

17 ‘‘(D) due to other direct or indirect control 

18 or pressure from the franchisor. 

19 ‘‘(2) PROCESS FOR AND TYPE OF INDEMNIFICA20 TION.—Indemnification under paragraph (1)— 

21 ‘‘(A) may be sought by a franchisee in any 

22 court of competent jurisdiction; and 

23 ‘‘(B) shall include a full recovery from the 

24 franchisor of all compensatory and punitive 

25 damages, civil monetary penalties, attorney’s 


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•S 4738 IS

1 fees, or other amounts required to be paid by 

2 the franchisee as a result of the violation of this 

3 chapter. 

4 ‘‘(3) PROHIBITION ON WAIVER.— 

5 ‘‘(A) IN GENERAL.—A franchisor shall not 

6 require or otherwise request a franchisee to 

7 waive the franchisee’s right to indemnification 

8 under this subsection. 

9 ‘‘(B) REMEDY AND CIVIL PENALTY.—If a 

10 franchisor violates subparagraph (A)— 

11 ‘‘(i) any indemnification waiver ob12 tained shall be null and void; and 

13 ‘‘(ii) the franchisor shall be subject to 

14 a civil penalty of $100,000. 

15 ‘‘(4) PROHIBITION ON RETALIATION.— 

16 ‘‘(A) IN GENERAL.—A franchisor shall not 

17 end a franchise agreement with, take adverse 

18 action in relation to, or otherwise discriminate 

19 against, a franchisee for pursuing indemnifica20 tion under this subsection. 

21 ‘‘(B) REMEDY AND CIVIL PENALTY.—Any 

22 franchisor who violates subparagraph (A) shall 

23 be subject to a civil penalty of $100,000.’’. 

24 (i) FAMILY AND MEDICAL LEAVE ACT OF 1993.— 


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1 (1) IN GENERAL.—Section 101(4) of the Fam2 ily and Medical Leave Act of 1993 (29 U.S.C. 

3 2611(4)), as amended by section 202(a)(9), is fur4 ther amended by adding at the end the following: 

5 ‘‘(F) FRANCHISORS AND FRANCHISEES.— 

6 A franchisor shall also be responsible for the 

7 rights and protections of this Act with regard 

8 to an employee, in any case where a franchisee 

9 of the franchisor is responsible for the rights 

10 and protections of this Act for the employee.’’. 

11 (2) INDEMNIFICATION.—Section 107 of the 

12 Family and Medical Leave Act of 1993 (29 U.S.C. 

13 2617), as amended by section 202(c)(9), is further 

14 amended by inserting after subsection (f) the fol15 lowing: 

16 ‘‘(g) FRANCHISEES AND FRANCHISORS.— 

17 ‘‘(1) INDEMNIFICATION BY FRANCHISOR.—An 

18 employer or other entity that is found to be in viola19 tion of this Act and is a franchisee shall have the 

20 right to indemnification as described in paragraph 

21 (2) from the franchisor, in any case where the viola22 tion was— 

23 ‘‘(A) at the behest of the franchisor; 

24 ‘‘(B) at the direction of the franchisor; 


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1 ‘‘(C) pursuant to any policies, agreements, 

2 or contractual obligations emanating from the 

3 franchisor; or 

4 ‘‘(D) due to other direct or indirect control 

5 or pressure from the franchisor. 

6 ‘‘(2) PROCESS FOR AND TYPE OF INDEMNIFICA7 TION.—Indemnification under paragraph (1)— 

8 ‘‘(A) may be sought by a franchisee in any 

9 court of competent jurisdiction; and 

10 ‘‘(B) shall include a full recovery from the 

11 franchisor of all compensatory and punitive 

12 damages, civil monetary penalties, attorney’s 

13 fees, or other amounts required to be paid by 

14 the franchisee as a result of the violation of this 

15 Act. 

16 ‘‘(3) PROHIBITION ON WAIVER.— 

17 ‘‘(A) IN GENERAL.—A franchisor shall not 

18 require or otherwise request a franchisee to 

19 waive the franchisee’s right to indemnification 

20 under this subsection. 

21 ‘‘(B) REMEDY AND CIVIL PENALTY.—If a 

22 franchisor violates subparagraph (A)— 

23 ‘‘(i) any indemnification waiver ob24 tained shall be null and void; and 


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1 ‘‘(ii) the franchisor shall be subject to 

2 a civil penalty of $100,000. 

3 ‘‘(4) PROHIBITION ON RETALIATION.— 

4 ‘‘(A) IN GENERAL.—A franchisor shall not 

5 end a franchise agreement with, take adverse 

6 action in relation to, or otherwise discriminate 

7 against, a franchisee for pursuing indemnifica8 tion under this subsection. 

9 ‘‘(B) REMEDY AND CIVIL PENALTY.—Any 

10 franchisor who violates subparagraph (A) shall 

11 be subject to a civil penalty of $100,000.’’. 

12 (j) FEDERAL UNEMPLOYMENT TAX ACT (FUTA).— 

13 (1) IN GENERAL.—Section 3306(w) of the In14 ternal Revenue Code of 1986, as amended by section 

15 202(a)(10), is amended by adding at the end the fol16 lowing new paragraphs: 

17 ‘‘(5) Paragraph (7) of section 3(d) of such Act. 

18 ‘‘(6) Subsection (i) of section 16 of such 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. 204. TEMPORARY STAFFING COMPANIES. 

23 (a) RESPONSIBILITIES OF EMPLOYERS UTILIZING

24 EMPLOYEES OF STAFFING COMPANIES AND OTHER COV25 ERED 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 

4 203(a)(1), is further amended by adding at the end 

5 the following: 

6 ‘‘(8) EMPLOYERS OF EMPLOYEES OF STAFFING

7 COMPANIES AND OTHER COVERED EMPLOYEES.—An 

8 employer shall also be responsible for the rights and 

9 protections of this Act with regard to one or more 

10 covered employees (as defined in section 6(c)(1)) 

11 provided by another employer to perform labor for 

12 the employer.’’. 

13 (2) NATIONAL LABOR RELATIONS ACT.—Sec14 tion 2(2) of the National Labor Relations Act (29 

15 U.S.C. 152(2)), as amended by section 203(b)(1), is 

16 further amended by adding at the end the following: 

17 ‘‘(F) EMPLOYERS OF EMPLOYEES OF STAFFING

18 COMPANIES AND OTHER COVERED EMPLOYEES.—An 

19 employer shall also be responsible for the rights and 

20 protections of this Act with regard to one or more 

21 covered employees (as defined in section 6(c)(1) of 

22 the Fair Labor Standards Act of 1938 (29 U.S.C. 

23 206(c)(1))) provided by another employer to perform 

24 labor for the employer.’’. 


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1 (3) OCCUPATIONAL SAFETY AND HEALTH ACT

2 OF 1970.—Section 3(5) of the Occupational Safety 

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

4 amended by section 203(c), is further amended by 

5 adding at the end the following: 

6 ‘‘(G) EMPLOYERS OF EMPLOYEES OF

7 STAFFING COMPANIES AND OTHER COVERED

8 EMPLOYEES.—An employer shall also be re9 sponsible for the rights and protections of this 

10 Act with regard to one or more covered employ11 ees (as defined in section 6(c)(1) of the Fair 

12 Labor Standards Act (29 U.S.C. 206(c)(1))) 

13 provided by another employer to perform labor 

14 for the employer.’’. 

15 (4) FEDERAL MINE SAFETY AND HEALTH ACT

16 OF 1977.—Section 4B of the Federal Mine Safety 

17 and Health Act of 1977, as amended by section 

18 203(d)(1), is further amended by adding at the end 

19 the following: 

20 ‘‘(d) EMPLOYERS OF EMPLOYEES OF STAFFING

21 COMPANIES AND OTHER COVERED EMPLOYEES.—An op22 erator of a coal or other mine shall also be responsible 

23 for the rights and protections of this Act with regard to 

24 one or more covered employees (as defined in section 

25 6(c)(1) of the Fair Labor Standards Act (29 U.S.C. 


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•S 4738 IS

1 206(c)(1))) provided by another employer to perform labor 

2 as miners for the operator.’’. 

3 (5) MIGRANT AND SEASONAL AGRICULTURAL

4 WORKER PROTECTION ACT.—Section 5(c) of the Mi5 grant and Seasonal Agricultural Worker Protection 

6 Act, as amended by section 203(e), is further 

7 amended by adding at the end the following: 

8 ‘‘(5) EMPLOYERS OF EMPLOYEES OF STAFFING

9 COMPANIES AND OTHER COVERED EMPLOYEES.—A 

10 farm labor contractor, agricultural employer, or agri11 cultural association shall also be responsible for the 

12 rights and protections of this Act with regard to one 

13 or more migrant agricultural workers or seasonal ag14 ricultural workers who— 

15 ‘‘(A) are covered employees (as defined in 

16 section 6(c)(1) of the Fair Labor Standards Act 

17 of 1938); and 

18 ‘‘(B) are provided by another employer to 

19 perform labor for the farm labor contractor, ag20 ricultural employer, or agricultural associa21 tion.’’. 

22 (6) DAVIS-BACON ACT.—Section 3144b of title 

23 40, United States Code, as amended by section 

24 203(f)(1), is further amended by adding at the end 

25 the following: 


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1 ‘‘(d) EMPLOYERS OF EMPLOYEES OF STAFFING

2 COMPANIES AND OTHER COVERED EMPLOYEES.—A con3 tractor or any subcontractor shall also be responsible for 

4 the rights and protections of this subchapter with regard 

5 to one or more laborers or mechanics who are covered em6 ployees (as defined in section 6(c)(1) of the Fair Labor 

7 Standards Act (29 U.S.C. 206(c)(1))) provided by another 

8 employer to perform labor for the contractor or subcon9 tractor under a contract to which this subchapter ap10 plies.’’. 

11 (7) MCNAMARA-O’HARA SERVICE CONTRACT

12 ACT.—Section 6701a of title 41, United States 

13 Code, as amended by section 203(g), is further 

14 amended by adding at the end the following: 

15 ‘‘(d) EMPLOYERS OF EMPLOYEES OF STAFFING

16 COMPANIES AND OTHER COVERED EMPLOYEES.—A con17 tractor shall also be responsible for the rights and protec18 tions of this chapter with regard to one or more service 

19 employees who are covered employees (as defined in sec20 tion 6(c)(1) of the Fair Labor Standards Act (29 U.S.C. 

21 206(c)(1))) provided by another employer to perform labor 

22 for the contractor under a contract to which this chapter 

23 applies.’’. 

24 (8) WALSH-HEALEY PUBLIC CONTRACTS ACT.— 

25 Section 6501b of title 41, United States Code, as 


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•S 4738 IS

1 amended by section 203(h), is further amended by 

2 adding at the end the following: 

3 ‘‘(d) EMPLOYERS OF EMPLOYEES OF STAFFING

4 COMPANIES AND OTHER COVERED EMPLOYEES.—A con5 tractor shall also be responsible for the rights and protec6 tions of this chapter with regard to one or more individ7 uals who are covered employees (as defined in section 

8 6(c)(1) of the Fair Labor Standards Act (29 U.S.C. 

9 206(c)(1))) provided by another employer to perform labor 

10 in the manufacture or furnishing of materials, supplies, 

11 articles, or equipment for the contractor under a contract 

12 to which this chapter applies.’’. 

13 (9) FAMILY AND MEDICAL LEAVE ACT OF

14 1993.—Section 101(4) of the Family and Medical 

15 Leave Act of 1993 (29 U.S.C. 2611(4)), as amended 

16 by section 203(i), is further amended by adding at 

17 the end the following: 

18 ‘‘(G) EMPLOYERS OF EMPLOYEES OF

19 STAFFING COMPANIES AND OTHER COVERED

20 EMPLOYEES.—An employer shall also be re21 sponsible for the rights and protections of this 

22 Act with regard to one or more covered employ23 ees (as defined in section 6(c)(1) of the Fair 

24 Labor Standards Act of 1938 (29 U.S.C. 


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•S 4738 IS

1 206(c)(1))) provided by another employer to 

2 perform labor for the employer.’’. 

3 (10) FEDERAL UNEMPLOYMENT TAX ACT

4 (FUTA).— 

5 (A) IN GENERAL.—Section 3306(w) of the 

6 Internal Revenue Code of 1986, as amended by 

7 section 203(j), is amended by adding at the end 

8 the following new paragraph: 

9 ‘‘(7) Paragraph (8) of section 3(d) of such 

10 Act.’’. 

11 (B) EFFECTIVE DATE.—The amendment 

12 made by subparagraph (A) shall apply to serv13 ices rendered on or after January 1, 2022. 

14 (b) EQUITABLE TREATMENT FOR EMPLOYEES OF

15 STAFFING COMPANIES AND OTHER COVERED EMPLOY16 EES.— 

17 (1) IN GENERAL.—Section 6 of the Fair Labor 

18 Standards Act of 1938 (29 U.S.C. 206) is amended 

19 by inserting after subsection (b) the following: 

20 ‘‘(c) EMPLOYEES OF STAFFING COMPANIES AND

21 OTHER COVERED EMPLOYEES.— 

22 ‘‘(1) DEFINITION OF COVERED EMPLOYEE.—In 

23 this subsection, the term ‘covered employee’ means 

24 an employee provided by another employer to perVerDate Sep 11 2014 22:42 Oct 26, 2020 Jkt 019200 PO 00000 Frm 00285 Fmt 6652 Sfmt 6201 E:\BILLS\S4738.IS S4738

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1 form labor for the employer, including a temporary 

2 or short-term contract employee. 

3 ‘‘(2) WAGES FOR COVERED EMPLOYEES.— 

4 ‘‘(A) IN GENERAL.—No employer shall pay 

5 wages to a covered employee provided by an6 other employer to perform labor for the em7 ployer, or allow a covered employee provided by 

8 another employer to perform labor for the em9 ployer at wages, at a rate less than the pre10 vailing rate at which the employer for whom the 

11 labor is performed pays wages to direct employ12 ees for similar work on jobs the performance of 

13 which requires similar skill, effort, and respon14 sibility, and which are performed under similar 

15 working conditions, except as provided in sub16 paragraph (B). 

17 ‘‘(B) EXCEPTIONS.—An employer may pay 

18 a covered employee a wage at a rate less than 

19 the wage rate required under subparagraph (A) 

20 if— 

21 ‘‘(i) such payment is made pursuant 

22 to— 

23 ‘‘(I) a seniority system; 

24 ‘‘(II) a merit system; 


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1 ‘‘(III) a system that measures 

2 rate of pay by quantity or quality of 

3 production; or 

4 ‘‘(IV) a differential based on any 

5 lawful factor other than employment 

6 status; and 

7 ‘‘(ii) the rate is not less than 80 per8 cent of the prevailing rate at which the 

9 employer for whom the labor is performed 

10 pays wages to direct employees for similar 

11 work on jobs the performance of which re12 quires similar skill, effort, and responsi13 bility, and which are performed under 

14 similar working conditions. 

15 ‘‘(3) INCREASED WAGES FOR COVERED EM16 PLOYEES.— 

17 ‘‘(A) IN GENERAL.—In the case of a cov18 ered employee who is not provided with the 

19 same benefits as the employer for whom the 

20 labor is being performed provides to its direct 

21 employees, the employer for whom the labor is 

22 being performed shall pay the covered employee, 

23 or require the employer providing the covered 

24 employee to pay the covered employee, a wage 


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1 rate that, subject to subparagraph (B), is not 

2 less than the sum of— 

3 ‘‘(i) the wage rate required under 

4 paragraph (2); and 

5 ‘‘(ii) the lesser of— 

6 ‘‘(I) an amount equal to 25 per7 cent of the wage rate required under 

8 paragraph (2); or 

9 ‘‘(II) the amount the employee 

10 would have to pay to secure equivalent 

11 benefits without an employer’s assist12 ance. 

13 ‘‘(B) MINIMUM.—In no case shall the min14 imum wage rate required under subparagraph 

15 (A) be less than 125 percent of the minimum 

16 wage rate required under subsection (a)(1).’’. 

17 (2) LIMITING EXEMPTIONS.—Section 13 of the 

18 Fair Labor Standards Act of 1938 (29 U.S.C. 213) 

19 is amended— 

20 (A) in the matter preceding paragraph (1) 

21 of subsection (a), by inserting ‘‘and section 

22 6(c)’’ after ‘‘this subsection’’; 

23 (B) in subsection (d), by inserting ‘‘(except 

24 for subsection (c) of such section)’’ after ‘‘sec25 tions 6’’; and 


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1 (C) in subsection (f), by inserting ‘‘(except 

2 for subsection (c) of such section)’’ after ‘‘sec3 tions 6’’. 

4 (c) NEW PROTECTIONS FOR EMPLOYEES OF STAFF5 ING COMPANIES AND OTHER COVERED EMPLOYEES.— 

6 (1) IN GENERAL.—Section 9 of the Fair Labor 

7 Standards Act of 1938, as added by section 

8 102(a)(6)(C)(i), is further amended by adding at the 

9 end the following: 

10 ‘‘(b) PROTECTIONS FOR EMPLOYEES OF STAFFING

11 COMPANIES AND OTHER COVERED EMPLOYEES.— 

12 ‘‘(1) DEFINITION OF COVERED EMPLOYEE.—In 

13 this subsection, the term ‘covered employee’ has the 

14 meaning given the term in section 6(c)(1). 

15 ‘‘(2) REGISTRATION OF PROVIDING EMPLOY16 ERS.— 

17 ‘‘(A) IN GENERAL.—Each employer that 

18 provides covered employees to perform labor for 

19 another employer shall register with the Sec20 retary each year, in accordance with this sub21 section and regulations of the Secretary. Each 

22 such providing employer shall include with the 

23 registration— 


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1 ‘‘(i) proof of an employer account 

2 number for the purposes of the payment of 

3 unemployment insurance contributions; 

4 ‘‘(ii) proof of valid workers’ compensa5 tion insurance in effect at the time of reg6 istration and covering all covered employ7 ees performing labor for the employer; and 

8 ‘‘(iii) a report containing the informa9 tion described in paragraph (7)(A)(ix), in 

10 the aggregate for all covered employees of 

11 the providing employer that performed 

12 labor for another employer in the pre13 ceding calendar year and disaggregated by 

14 branch office. 

15 ‘‘(B) REGISTRATION FEE.—The Secretary 

16 shall assess each employer that registers under 

17 subparagraph (A) a nonrefundable registration 

18 fee equal to the sum of— 

19 ‘‘(i) $1,000 per year; and 

20 ‘‘(ii) an additional $250 for each 

21 branch office of the employer. 

22 ‘‘(C) IMMEDIATE REPORTING OF WORK23 ERS’ COMPENSATION LAPSE.—In any case 

24 where the workers’ compensation insurance of 


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1 an employer required to register under subpara2 graph (A) lapses— 

3 ‘‘(i) the employer shall report the 

4 lapse to the Secretary; and 

5 ‘‘(ii) the Secretary shall suspend the 

6 employer’s registration until the employer’s 

7 workers’ compensation insurance is rein8 stated. 

9 ‘‘(D) AUTHORITY TO DENY, SUSPEND, OR

10 REVOKE REGISTRATION.— 

11 ‘‘(i) IN GENERAL.—The Secretary 

12 shall have the authority to deny, suspend, 

13 or revoke the registration of an employer 

14 under subparagraph (A) if warranted by 

15 violations of this subsection or of any other 

16 Federal, State, or local worker protection 

17 law. 

18 ‘‘(ii) DUTY TO NOTIFY.—An employer 

19 whose registration under subparagraph (A) 

20 is denied, suspended, or revoked shall no21 tify, both by telephone and in writing, each 

22 of its covered employees and each of the 

23 employers for whom its covered employees 

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1 nial, suspension, or revocation of its reg2 istration. 

3 ‘‘(E) INELIGIBILITY.—An employer re4 questing to register with the Secretary under 

5 subparagraph (A) is ineligible if, within the 5 

6 years immediately preceding the date of the em7 ployer’s registration request, the employer or 

8 any of its officers, directors, partners, or man9 agers, or any owner of 25 percent or greater 

10 beneficial interest, has been involved, as officer, 

11 director, partner, manager, or owner, in an12 other employer whose registration under such 

13 subparagraph was revoked or suspended with14 out being reinstated. 

15 ‘‘(F) WEBSITE.—The Secretary shall cre16 ate and maintain a public website that in17 cludes— 

18 ‘‘(i) a list of all employers whose reg19 istration under subparagraph (A) is in 

20 good standing; 

21 ‘‘(ii) a list of all employers whose reg22 istration under subparagraph (A) has been 

23 suspended, including the reason for the 

24 suspension, the date the suspension was 


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1 initiated, and, if known, the date the sus2 pension is to be lifted; and 

3 ‘‘(iii) a list of all employers whose reg4 istration under subparagraph (A) has been 

5 revoked, including the reason for the rev6 ocation and the date the registration was 

7 revoked. 

8 ‘‘(3) EMPLOYERS FOR WHOM EMPLOYEES PER9 FORM LABOR.— 

10 ‘‘(A) IN GENERAL.—No employer for 

11 whom a covered employee is provided by an12 other employer to perform labor may enter into 

13 a contract or any other agreement for such 

14 labor with any employer not registered under 

15 paragraph (2)(A). 

16 ‘‘(B) VERIFICATION.— 

17 ‘‘(i) REQUIREMENTS FOR RECEIVING

18 EMPLOYERS.—An employer for whom a 

19 covered employee is provided by another 

20 employer to perform labor shall verify the 

21 providing employer’s status with the Sec22 retary of Labor before entering into a con23 tract or other agreement with the pro24 viding employer, and at annual intervals 

25 thereafter. 


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1 ‘‘(ii) REQUIREMENTS FOR PROVIDING

2 EMPLOYERS.—An employer that provides a 

3 covered employee to another employer to 

4 perform labor shall provide any employer 

5 for whom its covered employee performs 

6 labor with proof of valid registration under 

7 paragraph (2)(A) before entering into any 

8 contract or other agreement with the re9 ceiving employer. 

10 ‘‘(C) LIST OF REGISTERED EMPLOYERS.— 

11 Upon request, the Secretary shall provide to 

12 any requesting party a list of employers reg13 istered under paragraph (2)(A) and an em14 ployer may rely in good faith on the informa15 tion on such list provided by the Secretary. 

16 ‘‘(4) NO WORK RESTRICTIONS.—No employer 

17 that provides a covered employee to perform labor 

18 for another employer shall— 

19 ‘‘(A) restrict the right of a covered em20 ployee to accept direct employment with an em21 ployer for whom the covered employee has per22 formed labor; 

23 ‘‘(B) restrict the right of an employer for 

24 whom the covered employee has performed 

25 labor to offer such direct employment; or 


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1 ‘‘(C) charge any fee, either to the covered 

2 employee or an employer for whom the covered 

3 employee has performed labor, for the covered 

4 employee converting to direct employment with 

5 such employer. 

6 ‘‘(5) PROHIBITION ON PERMATEMP WORK7 ERS.— 

8 ‘‘(A) CONVERSION OF TEMPORARY WORK9 ERS TO DIRECT EMPLOYEES.—After a covered 

10 employee performs labor for an employer for 

11 1,040 total hours during any 12-month period, 

12 such employer shall convert the covered em13 ployee to a direct employee of such employer. 

14 ‘‘(B) PROHIBITIONS ON EVASION.— 

15 ‘‘(i) NO MULTIPLE CONTRACTS.—An 

16 employer shall not terminate or end the 

17 agreement under which a covered employee 

18 is providing labor to the employer and then 

19 reengage such covered employee at a later 

20 date in order to evade the requirements of 

21 this subsection. 

22 ‘‘(ii) NO REPLACEMENT EMPLOY23 EES.—An employer shall not terminate or 

24 end the agreement under which a covered 

25 employee is providing labor to the employer 


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1 and then engage a different covered em2 ployee in order to evade the requirements 

3 of this subsection. 

4 ‘‘(6) EMPLOYMENT NOTICES.— 

5 ‘‘(A) IN GENERAL.—Whenever an em6 ployer agrees to provide 1 or more covered em7 ployees to perform labor for another employer, 

8 the providing employer shall provide to each 

9 covered employee and to the other employer, at 

10 the time of dispatch, a statement containing the 

11 following information on a form approved by 

12 the Secretary: 

13 ‘‘(i) The name of the covered em14 ployee. 

15 ‘‘(ii) The name, address, and phone 

16 number of the providing employer that has 

17 agreed to the dispatch. 

18 ‘‘(iii) The name, address, and phone 

19 number of the employer for whom the cov20 ered employee will perform labor. 

21 ‘‘(iv) The name, address, and phone 

22 number of the providing employer’s work23 ers’ compensation insurance carrier. 


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1 ‘‘(v) The address and phone number 

2 of the nearest regional office of the De3 partment of Labor. 

4 ‘‘(vi) The name of the position, the 

5 nature of the work to be performed, and 

6 the types of equipment, clothing, and 

7 training that are required for the task. 

8 ‘‘(vii) The wages offered, including 

9 the hourly rate of pay and the hourly rate 

10 of overtime pay, should overtime hours be 

11 performed. 

12 ‘‘(viii) The designated pay day. 

13 ‘‘(ix) The anticipated daily start times 

14 and daily end times. 

15 ‘‘(x) The anticipated duration of the 

16 dispatch. 

17 ‘‘(xi) The terms of transportation. 

18 ‘‘(xii) Whether meals or equipment, or 

19 both, are provided and the cost of the meal 

20 and equipment to the covered employee, if 

21 any. 

22 ‘‘(B) DURATION.—If a covered employee 

23 who is provided by an employer to perform 

24 labor for another employer is assigned to the 

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1 viding employer is required to provide the em2 ployment information described in subpara3 graph (A) only on— 

4 ‘‘(i) the first day of the assignment; 

5 and 

6 ‘‘(ii) if any of the terms described in 

7 subparagraph (A) are changed, the first 

8 day of such change. 

9 ‘‘(C) CONFIRMATION OF WORK SOUGHT.— 

10 If an employer that provides covered employees 

11 to other employers to perform labor does not 

12 place a covered employee with an employer for 

13 whom to perform labor for a particular day, the 

14 providing employer shall, upon request, provide 

15 the covered employee with a written and signed 

16 confirmation that the covered employee sought 

17 work, which shall include the name of the pro18 viding employer, the name and address of the 

19 covered employee, and the date and time that 

20 the covered employee received the confirmation. 

21 ‘‘(D) NO COVERED EMPLOYEES DURING

22 LABOR DISPUTES.—No employer may provide a 

23 covered employee to perform labor at any work24 place where a strike, lockout, or other labor dis25 pute exists. 


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1 ‘‘(7) RECORDKEEPING.— 

2 ‘‘(A) PROVIDING EMPLOYER.—Whenever 

3 an employer provides covered employees to per4 form labor for another employer, the providing 

5 employer shall keep the following records with 

6 respect to the covered employees: 

7 ‘‘(i) The name, address, and telephone 

8 number for each employer to whom covered 

9 employees were sent to perform labor, in10 cluding each worksite to which covered em11 ployees were sent, and the date of the 

12 transaction effectuating the agreement be13 tween employers. 

14 ‘‘(ii) For each covered employee, the 

15 name, address, and specific location of the 

16 worksite, the type of labor performed, the 

17 number of hours worked, and the hourly 

18 rate of pay. 

19 ‘‘(iii) The name and title of all indi20 viduals responsible for the transaction on 

21 behalf of the employer for whom the cov22 ered employee is performing labor. 

23 ‘‘(iv) Any specific qualifications or at24 tributes of an employee that are requested 


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1 by the employer for whom the covered em2 ployee performs labor. 

3 ‘‘(v) Copies of all contracts (if any) or 

4 other agreements with, and all invoices 

5 from, the employer for whom the covered 

6 employee performs labor. 

7 ‘‘(vi) Copies of all employment notices 

8 provided in accordance with paragraph 

9 (6)(A). 

10 ‘‘(vii) Deductions to be made from the 

11 covered employee’s compensation, made by 

12 either the providing employer or the em13 ployer for whom the covered employee per14 forms labor, for the covered employee’s 

15 transportation, food, equipment, withheld 

16 income tax, withheld social security pay17 ments, and any other deduction. 

18 ‘‘(viii) Documentation verifying the 

19 actual cost of any equipment or meal 

20 charged to a covered employee. 

21 ‘‘(ix) The race and gender of each 

22 covered employee performing labor. 

23 ‘‘(x) Any additional information as 

24 shall be required by regulation of the Sec25 retary. 


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1 ‘‘(B) TRANSMISSION REQUIREMENTS.— 

2 ‘‘(i) IN GENERAL.—The employer for 

3 whom the covered employee is performing 

4 labor shall transmit all information re5 quired under subparagraph (A)(ii) to the 

6 employer who has provided such covered 

7 employee not later than 7 days following 

8 the last day of the work week worked for 

9 which the covered employee performed 

10 work for the employer. 

11 ‘‘(ii) INTERACTION WITH OTHER RE12 QUIREMENTS.—The failure of an employer 

13 for whom a covered employee is performing 

14 labor to transmit the information required 

15 under this subparagraph shall not exempt 

16 the covered employee’s providing employer 

17 from any other recordkeeping requirements 

18 of this subsection. 

19 ‘‘(8) MEALS.—If a covered employee is provided 

20 with a meal, the covered employee shall not be 

21 charged more than the actual cost of the meal. A 

22 covered employee shall not be charged for any meal 

23 not consumed by the covered employee. Purchase of 

24 a meal by a covered employee shall not be a condi25 tion of employment or performance of labor. 


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1 ‘‘(9) TRANSPORTATION.— 

2 ‘‘(A) IN GENERAL.—A covered employee 

3 may not be charged any fee for transport to or 

4 from a designated worksite by either the em5 ployer who is providing the covered employee 

6 for the performance of labor or the employer 

7 for whom the covered employee is performing 

8 labor. 

9 ‘‘(B) RESPONSIBILITY.—The employer who 

10 is providing a covered employee to perform 

11 labor for another employer is responsible for the 

12 conduct and performance of any person whom 

13 the employer secures to transport the covered 

14 employee to or from a designated worksite and 

15 for the safety of the vehicle used for such trans16 port, unless the transporter is a part of public 

17 mass transportation or a common carrier. 

18 ‘‘(C) REFERRAL LIMITATIONS.—The em19 ployer who is providing a covered employee to 

20 perform labor for another employer may not 

21 refer the covered employee to any person for 

22 transportation to or from a worksite unless that 

23 person is— 

24 ‘‘(i) part of public mass transpor25 tation; or 


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1 ‘‘(ii) providing the transportation for 

2 no fee. 

3 ‘‘(D) VEHICLE REQUIREMENTS.—Any 

4 motor vehicle owned or operated by an employer 

5 who is providing a covered employee to another 

6 employer that is used for the covered employ7 ee’s transportation to or from a worksite must 

8 have a seat and safety belt for each passenger 

9 and must be operated by a driver with a valid 

10 license to operate such motor vehicle. 

11 ‘‘(E) ROUND-TRIP TRANSPORTATION.—If a 

12 covered employee is provided with transpor13 tation to a worksite by either the covered em14 ployee’s providing employer or the employer for 

15 whom the covered employee is performing labor, 

16 then the covered employee shall be provided 

17 with transportation back to the point of origin 

18 unless the covered employee agrees prior to 

19 leaving for the worksite that the covered em20 ployee already has secured or will secure alter21 native transportation at the end of the covered 

22 employee’s shift. 

23 ‘‘(F) REIMBURSEMENT AND MINIMUM

24 COMPENSATION.—In any case where an em25 ployer providing a covered employee to perform 


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1 labor for another employer dispatches a covered 

2 employee to a job that does not exist, the pro3 viding employer shall— 

4 ‘‘(i) refund the covered employee’s 

5 reasonable transportation costs; and 

6 ‘‘(ii) pay the covered employee com7 pensation equivalent to 2 hours of work. 

8 ‘‘(10) EQUIPMENT.—For any safety equipment, 

9 specialized clothing, accessories, or any other items 

10 required by the nature of the work, either by law, 

11 custom, or the employer for whom a covered em12 ployee is performing labor, the covered employee— 

13 ‘‘(A) shall not be charged for the items 

14 provided by the providing employer or the em15 ployer for whom the covered employee is per16 forming labor, unless the covered employee neg17 ligently damages or destroys such items; and 

18 ‘‘(B) if the covered employee is required to 

19 purchase any such items, the employer for 

20 whom the covered employee is performing labor 

21 shall refund the cost of such items, including 

22 any related shipping or handling, to the covered 

23 employee. 

24 ‘‘(11) OTHER CHARGES.—No covered employee 

25 shall be charged by the employer who is providing 


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1 the covered employee to perform labor, or the em2 ployer for whom the covered employee is performing 

3 work, for any of the following: 

4 ‘‘(A) Registering with the covered employ5 ee’s providing employer. 

6 ‘‘(B) Obtaining work assignments. 

7 ‘‘(C) Drug tests. 

8 ‘‘(D) Background checks. 

9 ‘‘(E) Debit cards used for payment of 

10 wages or any other method of wage payment.’’. 

11 (2) PENALTIES.— 

12 (A) PROHIBITED ACTS.—Section 15(a) of 

13 the Fair Labor Standards Act of 1938 (29 

14 U.S.C. 215(a)), as amended by section 

15 102(a)(3)(B), is further amended by adding at 

16 the end the following: 

17 ‘‘(8) to violate any of the provisions of section 

18 9(b).’’. 

19 (B) PENALTIES.—Section 16(e) of the 

20 Fair Labor Standards Act of 1938 (29 U.S.C. 

21 216(e)), as amended by section 102(a)(7)(B), is 

22 further amended by adding at the end the fol23 lowing: 

24 ‘‘(9) FINES AND PENALTIES REGARDING TEM25 PORARY AND OTHER COVERED EMPLOYEES.— 


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1 ‘‘(A) IN GENERAL.—The Secretary may, after 

2 notice and an opportunity for a hearing, assess a 

3 civil penalty not to exceed $6,000 against any em4 ployer that violates any of the provisions of section 

5 9(b) (except for paragraph (2)(A) or (3) of such sec6 tion). Each violation of such section 9(b) for each 

7 day of the violation and for each covered employee 

8 shall constitute a separate and distinct violation of 

9 such section 9(b). 

10 ‘‘(B) REGISTRATION VIOLATIONS.—The Sec11 retary may, after notice and an opportunity for a 

12 hearing, assess a civil penalty against any employer 

13 that fails to register with the Secretary of Labor in 

14 accordance with section 9(b)(2)(A), including any 

15 rules issued under such section, of $500 per viola16 tion. Each day during which an employer operates 

17 without registering shall be a separate and distinct 

18 violation of such section. 

19 ‘‘(C) CIVIL PENALTY.—Any employer for whom 

20 a covered employee performs labor that violates sec21 tion 9(b)(3) shall be subject to a civil penalty of 

22 $500. Each day during which such employer con23 tracts with a covered employee’s employer who is not 

24 registered with the Secretary of Labor under section 


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1 9(b)(2)(A) shall constitute a separate and distinct 

2 offense. 

3 ‘‘(D) REVOCATION.—The Secretary may revoke 

4 the registration of an employer under section 

5 9(b)(2)(A) in any case where an employer willfully, 

6 as determined by the Department, commits a viola7 tion of this section within 3 years of an earlier viola8 tion of such section.’’. 

9 SEC. 205. LICENSORS. 

10 (a) FAIR LABOR STANDARDS ACT OF 1938.— 

11 (1) IN GENERAL.—Section 3(d) of the Fair 

12 Labor Standards Act of 1938 (29 U.S.C. 203(d)), as 

13 amended by section 204(a)(1), is further amended 

14 by adding at the end the following: 

15 ‘‘(9) LICENSORS.—An entity licensing its 

16 brand, name, or other likeness to an employer, or 

17 other entity responsible for the rights and protec18 tions of this Act with regard to the employees of 

19 such employer, for consideration shall also be re20 sponsible for the rights and protections of this Act 

21 with regard to the employees of such employer.’’. 

22 (2) INDEMNIFICATION.—Section 16 of the Fair 

23 Labor Standards Act of 1938, as amended by sec24 tion 203(a)(2), is further amended by adding at the 

25 end the following: 


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1 ‘‘(j) LICENSEES AND LICENSORS.— 

2 ‘‘(1) INDEMNIFICATION BY LICENSOR.—An em3 ployer or other entity that is found to be in violation 

4 of this Act shall have the right to indemnification as 

5 described in paragraph (2) from an entity licensing 

6 its brand, name, or other likeness to the employer or 

7 other entity, in any case where the violation was— 

8 ‘‘(A) at the behest of the licensor; 

9 ‘‘(B) at the direction of the licensor; 

10 ‘‘(C) pursuant to any policies, agreements, 

11 or contractual obligations emanating from the 

12 licensor; or 

13 ‘‘(D) due to other direct or indirect control 

14 or pressure from the licensor. 

15 ‘‘(2) PROCESS FOR AND TYPE OF INDEMNIFICA16 TION.—Indemnification under paragraph (1)— 

17 ‘‘(A) may be sought by a licensee in any 

18 court of competent jurisdiction; and 

19 ‘‘(B) shall include a full recovery from the 

20 licensor of all compensatory and punitive dam21 ages, civil monetary penalties, attorney’s fees, 

22 or other amounts required to be paid by the li23 censee as a result of the violation of this Act. 

24 ‘‘(3) PROHIBITION ON WAIVER.— 


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1 ‘‘(A) IN GENERAL.—A licensor shall not 

2 require or otherwise request a licensee to waive 

3 the licensee’s right to indemnification under 

4 this subsection. 

5 ‘‘(B) PENALTY.—If a licensor violates sub6 paragraph (A)— 

7 ‘‘(i) any indemnification waiver shall 

8 be null and void; and 

9 ‘‘(ii) the licensor shall be subject to a 

10 civil penalty of $100,000. 

11 ‘‘(4) PROHIBITION ON RETALIATION.— 

12 ‘‘(A) IN GENERAL.—A licensor shall not 

13 end the license agreement with, take adverse 

14 action in relation to, or otherwise discriminate 

15 against, a licensee for pursuing indemnification 

16 under this subsection. 

17 ‘‘(B) PENALTY.—A licensor who violates 

18 subparagraph (A) shall be subject to a civil 

19 penalty of $100,000.’’. 

20 (b) NATIONAL LABOR RELATIONS ACT.— 

21 (1) IN GENERAL.—Section 2(2) of the National 

22 Labor Relations Act (29 U.S.C. 152(2)), as amend23 ed by section 204(a)(2), is further amended by add24 ing at the end the following: 


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1 ‘‘(G) LICENSORS.—An entity licensing its 

2 brand, name, or other likeness to an employer, or 

3 other entity responsible for the rights and protec4 tions of this Act with regard to the employees of 

5 such employer, for consideration shall also be re6 sponsible for the rights and protections of this Act 

7 with regard to the employees of such employer.’’. 

8 (2) INDEMNIFICATION.—Section 12 of the Na9 tional Labor Relations Act (29 U.S.C. 162), as 

10 amended by section 203(b)(2), is further amended 

11 by adding at the end the following: 

12 ‘‘(h) LICENSEES AND LICENSORS.— 

13 ‘‘(1) INDEMNIFICATION BY LICENSOR.—An em14 ployer or other entity that is found to be in violation 

15 of this Act shall have the right to indemnification as 

16 described in paragraph (2) from an entity licensing 

17 its brand, name, or other likeness to the employer or 

18 other entity, in any case where the violation was— 

19 ‘‘(A) at the behest of the licensor; 

20 ‘‘(B) at the direction of the licensor; 

21 ‘‘(C) pursuant to any policies, agreements, 

22 or contractual obligations emanating from the 

23 licensor; or 

24 ‘‘(D) due to other direct or indirect control 

25 or pressure from the licensor. 


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1 ‘‘(2) PROCESS FOR AND TYPE OF INDEMNIFICA2 TION.—Indemnification under paragraph (1)— 

3 ‘‘(A) may be sought by a licensee in any 

4 court of competent jurisdiction; and 

5 ‘‘(B) shall include a full recovery from the 

6 licensor of all compensatory and punitive dam7 ages, civil monetary penalties, attorney’s fees, 

8 or other amounts required to be paid by the li9 censee as a result of the violation of this Act. 

10 ‘‘(3) PROHIBITION ON WAIVER.— 

11 ‘‘(A) IN GENERAL.—A licensor shall not 

12 require or otherwise request a licensee to waive 

13 the licensee’s right to indemnification under 

14 this subsection. 

15 ‘‘(B) PENALTY.—If a licensor violates sub16 paragraph (A)— 

17 ‘‘(i) any indemnification waiver shall 

18 be null and void; and 

19 ‘‘(ii) the licensor shall be subject to a 

20 civil penalty of $100,000. 

21 ‘‘(4) PROHIBITION ON RETALIATION.— 

22 ‘‘(A) IN GENERAL.—A licensor shall not 

23 end the license agreement with, take adverse 

24 action in relation to, or otherwise discriminate 


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1 against, a licensee for pursuing indemnification 

2 under this subsection. 

3 ‘‘(B) PENALTY.—A licensor who violates 

4 subparagraph (A) shall be subject to a civil 

5 penalty of $100,000.’’. 

6 (c) OCCUPATIONAL SAFETY AND HEALTH ACT OF

7 1970.— 

8 (1) IN GENERAL.—Section 3(5) of the Occupa9 tional Safety and Health Act of 1970 (29 U.S.C. 

10 652(5)), as amended by section 204(a)(3), is further 

11 amended by adding at the end the following: 

12 ‘‘(H) LICENSORS.—An entity licensing its 

13 brand, name, or other likeness to an employer, 

14 or other entity responsible for the rights and 

15 protections of this Act with regard to the em16 ployees of an employer, or other entity respon17 sible for the rights and protections of this Act 

18 with regard to the employees of such employer, 

19 for consideration shall also be responsible for 

20 the rights and protections of this Act with re21 gard to the employees of such employer.’’. 

22 (2) INDEMNIFICATION.—Section 17 of the Oc23 cupational Safety and Health Act of 1970 (29 

24 U.S.C. 666), as amended by section 203(c)(2), is 

25 further amended by adding at the end the following: 


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1 ‘‘(p) LICENSEES AND LICENSORS.— 

2 ‘‘(1) INDEMNIFICATION BY LICENSOR.—An em3 ployer or other entity that is found to be in violation 

4 of this Act shall have the right to indemnification as 

5 described in paragraph (2) from an entity licensing 

6 its brand, name, or other likeness to the employer or 

7 other entity, in any case where the violation was— 

8 ‘‘(A) at the behest of the licensor; 

9 ‘‘(B) at the direction of the licensor; 

10 ‘‘(C) pursuant to any policies, agreements, 

11 or contractual obligations emanating from the 

12 licensor; or 

13 ‘‘(D) due to other direct or indirect control 

14 or pressure from the licensor. 

15 ‘‘(2) PROCESS FOR AND TYPE OF INDEMNIFICA16 TION.—Indemnification under paragraph (1)— 

17 ‘‘(A) may be sought by a licensee in any 

18 court of competent jurisdiction; and 

19 ‘‘(B) shall include a full recovery from the 

20 licensor of all compensatory and punitive dam21 ages, civil monetary penalties, attorney’s fees, 

22 or other amounts required to be paid by the li23 censee as a result of the violation of this Act. 

24 ‘‘(3) PROHIBITION ON WAIVER.— 


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1 ‘‘(A) IN GENERAL.—A licensor shall not 

2 require or otherwise request a licensee to waive 

3 the licensee’s right to indemnification under 

4 this subsection. 

5 ‘‘(B) PENALTY.—If a licensor violates sub6 paragraph (A)— 

7 ‘‘(i) any indemnification waiver shall 

8 be null and void; and 

9 ‘‘(ii) the licensor shall be subject to a 

10 civil penalty of $100,000. 

11 ‘‘(4) PROHIBITION ON RETALIATION.— 

12 ‘‘(A) IN GENERAL.—A licensor shall not 

13 end the license agreement with, take adverse 

14 action in relation to, or otherwise discriminate 

15 against, a licensee for pursuing indemnification 

16 under this subsection. 

17 ‘‘(B) PENALTY.—A licensor who violates 

18 subparagraph (A) shall be subject to a civil 

19 penalty of $100,000.’’. 

20 (d) FEDERAL MINE SAFETY AND HEALTH ACT OF

21 1977.— 

22 (1) IN GENERAL.—Section 4B of the Federal 

23 Mine Safety and Health Act of 1977, as amended by 

24 section 204(a)(4), is further amended by adding at 

25 the end the following: 


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1 ‘‘(e) LICENSORS.—An entity licensing its brand, 

2 name, or other likeness to an operator of a coal or other 

3 mine, or other entity responsible for the rights and protec4 tions of this Act with regard to the miners employed by 

5 such operator, for consideration shall also be responsible 

6 for the rights and protections of this Act with regard to 

7 the miners employed by such operator.’’. 

8 (2) INDEMNIFICATION.—Section 118 of the 

9 Federal Mine Safety and Health Act of 1977, as 

10 amended by section 203(d)(2), is further amended 

11 by adding at the end the following: 

12 ‘‘(d) LICENSEES AND LICENSORS.— 

13 ‘‘(1) INDEMNIFICATION BY LICENSOR.—An op14 erator or other entity that is found to be in violation 

15 of this Act shall have the right to indemnification as 

16 described in paragraph (2) from an entity licensing 

17 its brand, name, or other likeness to the operator or 

18 other entity, in any case where the violation was— 

19 ‘‘(A) at the behest of the licensor; 

20 ‘‘(B) at the direction of the licensor; 

21 ‘‘(C) pursuant to any policies, agreements, 

22 or contractual obligations emanating from the 

23 licensor; or 

24 ‘‘(D) due to other direct or indirect control 

25 or pressure from the licensor. 


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1 ‘‘(2) PROCESS FOR AND TYPE OF INDEMNIFICA2 TION.—Indemnification under paragraph (1)— 

3 ‘‘(A) may be sought by a licensee in any 

4 court of competent jurisdiction; and 

5 ‘‘(B) shall include a full recovery from the 

6 licensor of all compensatory and punitive dam7 ages, civil monetary penalties, attorney’s fees, 

8 or other amounts required to be paid by the li9 censee as a result of the violation of this Act. 

10 ‘‘(3) PROHIBITION ON WAIVER.— 

11 ‘‘(A) IN GENERAL.—A licensor shall not 

12 require or otherwise request a licensee to waive 

13 the licensee’s right to indemnification under 

14 this subsection. 

15 ‘‘(B) PENALTY.—If a licensor violates sub16 paragraph (A)— 

17 ‘‘(i) any indemnification waiver shall 

18 be null and void; and 

19 ‘‘(ii) the licensor shall be subject to a 

20 civil penalty of $100,000. 

21 ‘‘(4) PROHIBITION ON RETALIATION.— 

22 ‘‘(A) IN GENERAL.—A licensor shall not 

23 end the license agreement with, take adverse 

24 action in relation to, or otherwise discriminate 


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1 against, a licensee for pursuing indemnification 

2 under this subsection. 

3 ‘‘(B) PENALTY.—A licensor who violates 

4 subparagraph (A) shall be subject to a civil 

5 penalty of $100,000.’’. 

6 (e) MIGRANT AND SEASONAL AGRICULTURAL WORK7 ER PROTECTION ACT.— 

8 (1) IN GENERAL.—Section 5(c) of the Migrant 

9 and Seasonal Agricultural Worker Protection Act, as 

10 amended by section 204(a)(5), is further amended 

11 by adding at the end the following: 

12 ‘‘(6) LICENSORS.—An entity licensing its 

13 brand, name, or other likeness to a farm labor con14 tractor, agricultural employer, or agricultural asso15 ciation, or other entity responsible for the rights and 

16 protections of this Act with regard to the migrant 

17 agricultural workers or seasonal agricultural workers 

18 of the farm labor contractor, agricultural employer, 

19 or agricultural association, for consideration shall 

20 also be responsible for the rights and protections of 

21 this Act with regard to such migrant agricultural 

22 workers and seasonal agricultural workers.’’. 

23 (2) INDEMNIFICATION.—Section 505 of the Mi24 grant and Seasonal Agricultural Worker Protection 


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1 Act, as amended by section 203(e)(2), is further 

2 amended by adding at the end the following: 

3 ‘‘(d) LICENSEES AND LICENSORS.— 

4 ‘‘(1) INDEMNIFICATION BY LICENSOR.—A farm 

5 labor contractor, agricultural employer, agricultural 

6 association, or other entity that is found to be in vio7 lation of this Act shall have the right to indemnifica8 tion as described in paragraph (2) from an entity li9 censing its brand, name, or other likeness to the 

10 farm labor contractor, agricultural employer, agricul11 tural association, or other entity, in any case where 

12 the violation was— 

13 ‘‘(A) at the behest of the licensor; 

14 ‘‘(B) at the direction of the licensor; 

15 ‘‘(C) pursuant to any policies, agreements, 

16 or contractual obligations emanating from the 

17 licensor; or 

18 ‘‘(D) due to other direct or indirect control 

19 or pressure from the licensor. 

20 ‘‘(2) PROCESS FOR AND TYPE OF INDEMNIFICA21 TION.—Indemnification under paragraph (1)— 

22 ‘‘(A) may be sought by a licensee in any 

23 court of competent jurisdiction; and 

24 ‘‘(B) shall include a full recovery from the 

25 licensor of all compensatory and punitive damVerDate Sep 11 2014 22:42 Oct 26, 2020 Jkt 019200 PO 00000 Frm 00318 Fmt 6652 Sfmt 6201 E:\BILLS\S4738.IS S4738

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1 ages, civil monetary penalties, attorney’s fees, 

2 or other amounts required to be paid by the li3 censee as a result of the violation of this Act. 

4 ‘‘(3) PROHIBITION ON WAIVER.— 

5 ‘‘(A) IN GENERAL.—A licensor shall not 

6 require or otherwise request a licensee to waive 

7 the licensee’s right to indemnification under 

8 this subsection. 

9 ‘‘(B) PENALTY.—If a licensor violates sub10 paragraph (A)— 

11 ‘‘(i) any indemnification waiver shall 

12 be null and void; and 

13 ‘‘(ii) the licensor shall be subject to a 

14 civil penalty of $100,000. 

15 ‘‘(4) PROHIBITION ON RETALIATION.— 

16 ‘‘(A) IN GENERAL.—A licensor shall not 

17 end the license agreement with, take adverse 

18 action in relation to, or otherwise discriminate 

19 against, a licensee for pursuing indemnification 

20 under this subsection. 

21 ‘‘(B) PENALTY.—A licensor who violates 

22 subparagraph (A) shall be subject to a civil 

23 penalty of $100,000.’’. 

24 (f) DAVIS-BACON ACT.— 


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1 (1) IN GENERAL.—Section 3144b of title 40, 

2 United States Code, as amended by section 

3 204(a)(6), is further amended by adding at the end 

4 the following: 

5 ‘‘(e) LICENSORS.—An entity licensing its brand, 

6 name, or other likeness to a contractor or subcontractor, 

7 or other entity responsible for the rights and protections 

8 of this subchapter with regard to the laborers or mechan9 ics of such contractor or subcontractor, for consideration 

10 shall also be responsible for the rights and protections of 

11 this subchapter with regard to such laborers or mechan12 ics.’’. 

13 (2) INDEMNIFICATION.—Section 3144c of title 

14 40, United States Code, as amended by section 

15 203(f)(2), is further amended by adding at the end 

16 the following: 

17 ‘‘(g) LICENSEES AND LICENSORS.— 

18 ‘‘(1) INDEMNIFICATION BY LICENSOR.—A con19 tractor, subcontractor, or other entity that is found 

20 to be in violation of this subchapter shall have the 

21 right to indemnification as described in paragraph 

22 (2) from an entity licensing its brand, name, or 

23 other likeness to the employer or other entity, in any 

24 case where the violation was— 

25 ‘‘(A) at the behest of the licensor; 


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1 ‘‘(B) at the direction of the licensor; 

2 ‘‘(C) pursuant to any policies, agreements, 

3 or contractual obligations emanating from the 

4 licensor; or 

5 ‘‘(D) due to other direct or indirect control 

6 or pressure from the licensor. 

7 ‘‘(2) PROCESS FOR AND TYPE OF INDEMNIFICA8 TION.—Indemnification under paragraph (1)— 

9 ‘‘(A) may be sought by a licensee in any 

10 court of competent jurisdiction; and 

11 ‘‘(B) shall include a full recovery from the 

12 licensor of all compensatory and punitive dam13 ages, civil monetary penalties, attorney’s fees, 

14 or other amounts required to be paid by the li15 censee as a result of the violation of this sub16 chapter. 

17 ‘‘(3) PROHIBITION ON WAIVER.— 

18 ‘‘(A) IN GENERAL.—A licensor shall not 

19 require or otherwise request a licensee to waive 

20 the licensee’s right to indemnification under 

21 this subsection. 

22 ‘‘(B) PENALTY.—If a licensor violates sub23 paragraph (A)— 

24 ‘‘(i) any indemnification waiver shall 

25 be null and void; and 


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1 ‘‘(ii) the licensor shall be subject to a 

2 civil penalty of $100,000. 

3 ‘‘(4) PROHIBITION ON RETALIATION.— 

4 ‘‘(A) IN GENERAL.—A licensor shall not 

5 end the license agreement with, take adverse 

6 action in relation to, or otherwise discriminate 

7 against, a licensee for pursuing indemnification 

8 under this subsection. 

9 ‘‘(B) PENALTY.—A licensor who violates 

10 subparagraph (A) shall be subject to a civil 

11 penalty of $100,000.’’. 

12 (g) MCNAMARA-O’HARA SERVICE CONTRACT ACT.— 

13 (1) IN GENERAL.—Section 6701a of title 41, 

14 United States Code, as amended by section 

15 204(a)(7), is further amended by adding at the end 

16 the following: 

17 ‘‘(e) LICENSORS.—An entity licensing its brand, 

18 name, or other likeness to a contractor, or other entity 

19 responsible for the rights and protections of this chapter 

20 with regard to the service employees of such contractor, 

21 for consideration shall also be responsible for the rights 

22 and protections of this chapter with regard to such service 

23 employees.’’. 

24 (2) INDEMNIFICATION.—Section 6707 of title 

25 41, United States Code, as amended by section 


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1 203(g)(2), is further amended by adding at the end 

2 the following: 

3 ‘‘(d) LICENSEES AND LICENSORS.— 

4 ‘‘(1) INDEMNIFICATION BY LICENSOR.—A con5 tractor, subcontractor, or other entity that is found 

6 to be in violation of this chapter shall have the right 

7 to indemnification as described in paragraph (2) 

8 from an entity licensing its brand, name, or other 

9 likeness to the employer or other entity, in any case 

10 where the violation was— 

11 ‘‘(A) at the behest of the licensor; 

12 ‘‘(B) at the direction of the licensor; 

13 ‘‘(C) pursuant to any policies, agreements, 

14 or contractual obligations emanating from the 

15 licensor; or 

16 ‘‘(D) due to other direct or indirect control 

17 or pressure from the licensor. 

18 ‘‘(2) PROCESS FOR AND TYPE OF INDEMNIFICA19 TION.—Indemnification under paragraph (1)— 

20 ‘‘(A) may be sought by a licensee in any 

21 court of competent jurisdiction; and 

22 ‘‘(B) shall include a full recovery from the 

23 licensor of all compensatory and punitive dam24 ages, civil monetary penalties, attorney’s fees, 

25 or other amounts required to be paid by the liVerDate Sep 11 2014 22:42 Oct 26, 2020 Jkt 019200 PO 00000 Frm 00323 Fmt 6652 Sfmt 6201 E:\BILLS\S4738.IS S4738

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1 censee as a result of the violation of this chap2 ter. 

3 ‘‘(3) PROHIBITION ON WAIVER.— 

4 ‘‘(A) IN GENERAL.—A licensor shall not 

5 require or otherwise request a licensee to waive 

6 the licensee’s right to indemnification under 

7 this subsection. 

8 ‘‘(B) PENALTY.—If a licensor violates sub9 paragraph (A)— 

10 ‘‘(i) any indemnification waiver shall 

11 be null and void; and 

12 ‘‘(ii) the licensor shall be subject to a 

13 civil penalty of $100,000. 

14 ‘‘(4) PROHIBITION ON RETALIATION.— 

15 ‘‘(A) IN GENERAL.—A licensor shall not 

16 end the license agreement with, take adverse 

17 action in relation to, or otherwise discriminate 

18 against, a licensee for pursuing indemnification 

19 under this subsection. 

20 ‘‘(B) PENALTY.—A licensor who violates 

21 subparagraph (A) shall be subject to a civil 

22 penalty of $100,000.’’. 

23 (h) WALSH-HEALEY PUBLIC CONTRACTS ACT.— 

24 (1) IN GENERAL.—Section 6501b of title 41, 

25 United States Code, as amended by section 


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1 204(a)(8), is further amended by adding at the end 

2 the following: 

3 ‘‘(e) LICENSORS.—An entity licensing its brand, 

4 name, or other likeness to a contractor, or other entity 

5 responsible for the rights and protections of this chapter 

6 with regard to individuals employed in the manufacture 

7 or furnishing of materials, supplies, articles, or equipment 

8 under a contract to which this chapter applies by such 

9 contractor, for consideration shall also be responsible for 

10 the rights and protections of this chapter with regard to 

11 such individuals.’’. 

12 (2) INDEMNIFICATION.—Section 6506b of title 

13 41, United States Code, as amended by section 

14 203(h)(2), is further amended by adding at the end 

15 the following: 

16 ‘‘(g) LICENSEES AND LICENSORS.— 

17 ‘‘(1) INDEMNIFICATION BY LICENSOR.—A con18 tractor, subcontractor, or other entity that is found 

19 to be in violation of this chapter shall have the right 

20 to indemnification as described in paragraph (2) 

21 from an entity licensing its brand, name, or other 

22 likeness to the employer or other entity, in any case 

23 where the violation was— 

24 ‘‘(A) at the behest of the licensor; 

25 ‘‘(B) at the direction of the licensor; 


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1 ‘‘(C) pursuant to any policies, agreements, 

2 or contractual obligations emanating from the 

3 licensor; or 

4 ‘‘(D) due to other direct or indirect control 

5 or pressure from the licensor. 

6 ‘‘(2) PROCESS FOR AND TYPE OF INDEMNIFICA7 TION.—Indemnification under paragraph (1)— 

8 ‘‘(A) may be sought by a licensee in any 

9 court of competent jurisdiction; and 

10 ‘‘(B) shall include a full recovery from the 

11 licensor of all compensatory and punitive dam12 ages, civil monetary penalties, attorney’s fees, 

13 or other amounts required to be paid by the li14 censee as a result of the violation of this chap15 ter. 

16 ‘‘(3) PROHIBITION ON WAIVER.— 

17 ‘‘(A) IN GENERAL.—A licensor shall not 

18 require or otherwise request a licensee to waive 

19 the licensee’s right to indemnification under 

20 this subsection. 

21 ‘‘(B) PENALTY.—If a licensor violates sub22 paragraph (A)— 

23 ‘‘(i) any indemnification waiver shall 

24 be null and void; and 


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1 ‘‘(ii) the licensor shall be subject to a 

2 civil penalty of $100,000. 

3 ‘‘(4) PROHIBITION ON RETALIATION.— 

4 ‘‘(A) IN GENERAL.—A licensor shall not 

5 end the license agreement with, take adverse 

6 action in relation to, or otherwise discriminate 

7 against, a licensee for pursuing indemnification 

8 under this subsection. 

9 ‘‘(B) PENALTY.—A licensor who violates 

10 subparagraph (A) shall be subject to a civil 

11 penalty of $100,000.’’. 

12 (i) FAMILY AND MEDICAL LEAVE ACT OF 1993.— 

13 (1) IN GENERAL.—Section 101(4) of the Fam14 ily and Medical Leave Act of 1993 (29 U.S.C. 

15 2611), as amended by section 204(a)(9), is further 

16 amended by adding at the end the following: 

17 ‘‘(H) LICENSORS.—An entity licensing its 

18 brand, name, or other likeness to an employer 

19 for consideration shall also be responsible for 

20 the rights and protections of this Act with re21 gard to the employees of such employer.’’. 

22 (2) INDEMNIFICATION.—Section 107 of the 

23 Family and Medical Leave Act of 1993 (29 U.S.C. 

24 2617), as amended by section 203(i)(2), by inserting 

25 after subsection (g) the following: 


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1 ‘‘(h) LICENSEES AND LICENSORS.— 

2 ‘‘(1) INDEMNIFICATION BY LICENSOR.—An em3 ployer or other entity that is found to be in violation 

4 of this Act shall have the right to indemnification as 

5 described in paragraph (2) from an entity licensing 

6 its brand, name, or other likeness to the employer or 

7 other entity, in any case where the violation was— 

8 ‘‘(A) at the behest of the licensor; 

9 ‘‘(B) at the direction of the licensor; 

10 ‘‘(C) pursuant to any policies, agreements, 

11 or contractual obligations emanating from the 

12 licensor; or 

13 ‘‘(D) due to other direct or indirect control 

14 or pressure from the licensor. 

15 ‘‘(2) PROCESS FOR AND TYPE OF INDEMNIFICA16 TION.—Indemnification under paragraph (1)— 

17 ‘‘(A) may be sought by a licensee in any 

18 court of competent jurisdiction; and 

19 ‘‘(B) shall include a full recovery from the 

20 licensor of all compensatory and punitive dam21 ages, civil monetary penalties, attorney’s fees, 

22 or other amounts required to be paid by the li23 censee as a result of the violation of this Act. 

24 ‘‘(3) PROHIBITION ON WAIVER.— 


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1 ‘‘(A) IN GENERAL.—A licensor shall not 

2 require or otherwise request a licensee to waive 

3 the licensee’s right to indemnification under 

4 this subsection. 

5 ‘‘(B) PENALTY.—If a licensor violates sub6 paragraph (A)— 

7 ‘‘(i) any indemnification waiver shall 

8 be null and void; and 

9 ‘‘(ii) the licensor shall be subject to a 

10 civil penalty of $100,000. 

11 ‘‘(4) PROHIBITION ON RETALIATION.— 

12 ‘‘(A) IN GENERAL.—A licensor shall not 

13 end the license agreement with, take adverse 

14 action in relation to, or otherwise discriminate 

15 against, a licensee for pursuing indemnification 

16 under this subsection. 

17 ‘‘(B) PENALTY.—A licensor who violates 

18 subparagraph (A) shall be subject to a civil 

19 penalty of $100,000.’’. 

20 (j) FEDERAL UNEMPLOYMENT TAX ACT (FUTA).— 

21 (1) IN GENERAL.—Section 3306(w) of the In22 ternal Revenue Code of 1986, as amended by section 

23 204(a)(10), is amended by adding at the end the fol24 lowing new paragraphs: 

25 ‘‘(8) Paragraph (9) of section 3(d) of such Act. 


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1 ‘‘(9) Subsection (j) of section 16 of such Act.’’. 

2 (2) EFFECTIVE DATE.—The amendment made 

3 by paragraph (1) shall apply to services rendered on 

4 or after January 1, 2022. 

5 SEC. 206. LABOR CONTRACTORS. 

6 (a) FAIR LABOR STANDARDS ACT OF 1938.—Section 

7 3(d) of the Fair Labor Standards Act of 1938 (29 U.S.C. 

8 203(d)), as amended by section 205(a)(1), is further 

9 amended by adding at the end the following: 

10 ‘‘(10) LABOR CONTRACTORS.—An employer 

11 shall also be responsible for the rights and protec12 tions of this Act with regard to an employee of a 

13 labor contractor, or any labor subcontractors under 

14 a labor contractor, in any case where such labor con15 tractor or labor subcontractor is responsible for the 

16 rights and protections of this Act with respect to the 

17 employee.’’. 

18 (b) NATIONAL LABOR RELATIONS ACT.— 

19 (1) IN GENERAL.—Section 2(2) of the National 

20 Labor Relations Act (29 U.S.C. 152(2)), as amend21 ed by section 205(b), is further amended by adding 

22 at the end the following: 

23 ‘‘(H) LABOR CONTRACTORS.—An employer 

24 shall also be responsible for the rights and protec25 tions of this Act with regard to an employee of a 


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1 labor contractor, or any labor subcontractors under 

2 a labor contractor, in any case where such labor con3 tractor or labor subcontractor is responsible for the 

4 rights and protections of this Act with respect to the 

5 employee.’’. 

6 (2) UNFAIR LABOR PRACTICE.—Section 8(a) of 

7 the National Labor Relations Act (29 U.S.C. 

8 158(a)), as amended by section 102(b)(3)(B), is fur9 ther amended by adding at the end the following: 

10 ‘‘(8) to reject contractors in whole or in part 

11 because the contractors have workforces represented 

12 by labor organizations, including— 

13 ‘‘(A) when the employer initially solicits 

14 bids for a contract for an as-yet-unchosen con15 tractor to provide a good or service to the em16 ployer, by rejecting any contractor in whole or 

17 in part because the contractor’s workforce is 

18 represented by a labor organization; or 

19 ‘‘(B) when an employer has an existing 

20 contract with a contractor and the contractor’s 

21 employees are considering to organize or have 

22 chosen to organize in accordance with the rights 

23 provided under section 7, by— 

24 ‘‘(i) ending the employer’s existing 

25 contract with the contractor; 


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1 ‘‘(ii) not renewing the employer’s ex2 isting contract with the contractor if the 

3 contract is set to expire; or 

4 ‘‘(iii) threatening to end or not renew 

5 the employer’s existing contract with the 

6 contractor, 

7 in whole or in part because of the labor organi8 zation consideration or representation described 

9 in the matter preceding clause (i).’’. 

10 (c) OCCUPATIONAL SAFETY AND HEALTH ACT OF

11 1970.—Section 3(5) of the Occupational Safety and 

12 Health Act of 1970 (29 U.S.C. 652(5)), as amended by 

13 section 205(c)(1), is further amended by adding at the end 

14 the following: 

15 ‘‘(I) LABOR CONTRACTORS.—An employer 

16 shall also be responsible for the rights and pro17 tections of this Act with regard to an employee 

18 of a labor contractor, or any labor subcontrac19 tors under a labor contractor, in any case where 

20 such labor contractor or labor subcontractor is 

21 responsible for the rights and protections of 

22 this Act with respect to the employee.’’. 

23 (d) FEDERAL MINE SAFETY AND HEALTH ACT OF

24 1977.—Section 4B of the Federal Mine Safety and Health 


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1 Act of 1977, as amended by section 205(d), is further 

2 amended by adding at the end the following: 

3 ‘‘(f) LABOR CONTRACTORS.—An employer shall also 

4 be responsible for the rights and protections of this Act 

5 with regard to a miner of a coal or other mine employed 

6 by a labor contractor, or any labor subcontractors under 

7 a labor contractor, in any case where such labor contractor 

8 or labor subcontractor is responsible for the rights and 

9 protections of this Act with respect to the miner.’’. 

10 (e) MIGRANT AND SEASONAL AGRICULTURAL WORK11 ER PROTECTION ACT.—Section 4(c) of the Migrant and 

12 Seasonal Agricultural Worker Protection Act, as amended 

13 by section 205(e)(1), is further amended by adding at the 

14 end the following: 

15 ‘‘(7) LABOR CONTRACTORS.—A farm labor con16 tractor, agricultural employer, or agricultural asso17 ciation shall also be responsible for the rights and 

18 protections of this Act with regard to a migrant ag19 ricultural worker or seasonal agricultural worker of 

20 a labor contractor, or any labor subcontractors 

21 under a labor contractor, in any case where such 

22 labor contractor or labor subcontractor is responsible 

23 for the rights and protections of this Act with re24 spect to the migrant agricultural worker or seasonal 

25 agricultural worker.’’. 


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1 (f) DAVIS-BACON ACT.—Section 3144b of title 40, 

2 United States Code, as amended by section 205(f)(1), is 

3 further amended by adding at the end the following: 

4 ‘‘(f) CONTRACTORS’ LIABILITY FOR LABOR SUB5 CONTRACTORS.—An employer who is a contractor subject 

6 to the requirements of this subchapter shall also be re7 sponsible for the rights and protections of this subchapter 

8 with regard to an employee of any labor subcontractor of 

9 the contractor, or any labor subcontractors under a labor 

10 subcontractor, in any case where— 

11 ‘‘(1) the employee is performing work under a 

12 contract to which this subchapter applies; and 

13 ‘‘(2) such labor subcontractor, or labor subcon14 tractor of a labor subcontractor, is responsible for 

15 the rights and protections of this subchapter with 

16 respect to a laborer or mechanic.’’. 

17 (g) MCNAMARA-O’HARA SERVICE CONTRACT ACT.— 

18 Section 6701a of title 41, United States Code, as amended 

19 by section 205(g), is further amended by adding at the 

20 end the following: 

21 ‘‘(f) CONTRACTORS’ LIABILITY FOR LABOR SUB22 CONTRACTORS.—An employer who is a contractor subject 

23 to the requirements of this chapter shall also be respon24 sible for the rights and protections of this chapter with 

25 regard to an employee of any labor subcontractor of the 


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1 contractor, or any labor subcontractors under a labor sub2 contractor, in any case where— 

3 ‘‘(1) the employee is performing work under a 

4 contract to which this chapter applies; and 

5 ‘‘(2) such labor subcontractor, or labor subcon6 tractor of a labor subcontractor, is responsible for 

7 the rights and protections of this chapter with re8 spect to a service employee.’’. 

9 (h) WALSH-HEALEY PUBLIC CONTRACTS ACT.—Sec10 tion 6501b of title 41, United States Code, as amended 

11 by section 205(h), is further amended by adding at the 

12 end the following: 

13 ‘‘(f) CONTRACTORS’ LIABILITY FOR LABOR SUB14 CONTRACTORS.—An employer who is a contractor subject 

15 to the requirements of this chapter shall also be respon16 sible for the rights and protections of this chapter with 

17 regard to an employee of any labor subcontractor of the 

18 contractor, or any labor subcontractors under a labor sub19 contractor, in any case where— 

20 ‘‘(1) the employee is employed in the manufac21 ture or furnishing of materials, supplies, articles, or 

22 equipment under a contract to which this chapter 

23 applies; and 

24 ‘‘(2) such labor subcontractor, or labor subcon25 tractor of a labor subcontractor, is responsible for 


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1 the rights and protections of this chapter with re2 spect to the employee.’’. 

3 (i) FAMILY AND MEDICAL LEAVE ACT OF 1993.— 

4 Section 101(4) of the Family and Medical Leave Act of 

5 1993 (29 U.S.C. 2611), as amended by section 205(i), is 

6 further amended by adding at the end the following: 

7 ‘‘(I) LABOR CONTRACTORS.—An employer 

8 shall also be responsible for the rights and pro9 tections of this Act with regard to an employee 

10 of a labor contractor, or any labor subcontrac11 tors under a labor contractor, in any case where 

12 such labor contractor or labor subcontractor is 

13 responsible for the rights and protections of 

14 this Act with respect to the employee.’’. 

15 (j) FEDERAL UNEMPLOYMENT TAX ACT (FUTA).— 

16 (1) IN GENERAL.—Section 3306(w) of the In17 ternal Revenue Code of 1986, as amended by section 

18 205(j), is amended by adding at the end the fol19 lowing new paragraph: 

20 ‘‘(10) Paragraph (10) of section 3(d) of such 

21 Act.’’. 

22 (2) EFFECTIVE DATE.—The amendment made 

23 by paragraph (1) shall apply to services rendered on 

24 or after January 1, 2022. 


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1 SEC. 207. SUPPLY CHAIN RESPONSIBILITY PLAN. 

2 (a) FAIR LABOR STANDARDS ACT OF 1938.— 

3 (1) SUPPLY CHAIN RESPONSIBILITY PLAN.— 

4 Section 11 of the Fair Labor Standards Act of 1938 

5 (29 U.S.C. 211) is amended by adding at the end 

6 the following: 

7 ‘‘(e) SUPPLY CHAIN RESPONSIBILITY PLAN.— 

8 ‘‘(1) DEFINITIONS.—In this subsection: 

9 ‘‘(A) COVERED EMPLOYER.—The term 

10 ‘covered employer’ means an employer that em11 ploys 100 or more employees. 

12 ‘‘(B) COVERED LAWS.—The term ‘covered 

13 laws’ means all of the following: 

14 ‘‘(i) This Act. 

15 ‘‘(ii) The National Labor Relations 

16 Act. 

17 ‘‘(iii) The Occupational Safety and 

18 Health Act of 1970. 

19 ‘‘(iv) The Federal Mine Safety and 

20 Health Act of 1977. 

21 ‘‘(v) The Migrant and Seasonal Agri22 cultural Worker Protection Act. 

23 ‘‘(vi) Subchapter IV of chapter 31 of 

24 title 40, United States Code (commonly 

25 known as the ‘Davis-Bacon Act’). 


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1 ‘‘(vii) Chapter 67 of title 41, United 

2 States Code (commonly known as the 

3 ‘McNamara-O’Hara Service Contract 

4 Act’). 

5 ‘‘(viii) Chapter 65 of title 41, United 

6 States Code (commonly known as the 

7 ‘Walsh-Healey Public Contracts Act of 

8 1936’). 

9 ‘‘(ix) The Family and Medical Leave 

10 Act of 1993. 

11 ‘‘(x) Violations of State law required 

12 under section 3304 of the Internal Rev13 enue Code of 1986. 

14 ‘‘(xi) The applicable labor laws of any 

15 country in which an employer that is part 

16 of a covered employer’s supply chain oper17 ates, with respect to employees employed 

18 in such country. 

19 ‘‘(2) DEVELOPMENT OF PLAN.—Each covered 

20 employer shall develop and carry out a supply chain 

21 responsibility plan described in paragraph (3) that 

22 describes how the employer will attempt to ensure 

23 that the employer’s primary supply chain does not 

24 include any employer that regularly violates— 

25 ‘‘(A) an individual covered law; or 


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1 ‘‘(B) the covered laws, when considered as 

2 a whole. 

3 ‘‘(3) CONTENTS.—Each supply chain responsi4 bility plan shall include, at a minimum— 

5 ‘‘(A) an assessment of— 

6 ‘‘(i) the violations under each covered 

7 law by each employer with more than 19 

8 employees in the covered employer’s supply 

9 chain; and 

10 ‘‘(ii) the violations under each covered 

11 law by each employer that provides a large 

12 volume or dollar amount of the covered 

13 employer’s supply chain; 

14 ‘‘(B) a plan for— 

15 ‘‘(i) removing from the covered em16 ployer’s supply chain each employer de17 scribed in subparagraph (A) that regularly 

18 violates— 

19 ‘‘(I) an individual covered law; or 

20 ‘‘(II) the covered laws, when con21 sidered as a whole; or 

22 ‘‘(ii) if clause (i) is not possible with 

23 respect to a particular employer described 

24 in subparagraph (A) due to an extremely 

25 limited number of employers that could 


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1 fulfill specific portions of the covered em2 ployer’s supply chain, utilizing the leverage 

3 that the covered employer has as a pur4 chaser to pressure the particular employer 

5 to improve compliance with the covered 

6 laws; 

7 ‘‘(C) a list of the organizations that the 

8 covered employer has identified to assist the 

9 covered employer in this process, including 

10 workers’ rights advocates; and 

11 ‘‘(D) any other information the Secretary 

12 determines necessary. 

13 ‘‘(4) SUBMISSION.—Each covered employer 

14 shall annually submit the supply chain responsibility 

15 plan to the Secretary and shall post the most recent 

16 plan publicly on the covered employer’s website.’’. 

17 (2) PENALTIES.—Section 16(e) of the Fair 

18 Labor Standards Act of 1938 (29 U.S.C. 216(e)), as 

19 amended by section 204(c)(2)(B), is further amend20 ed by adding at the end the following: 

21 ‘‘(10) PENALTIES FOR VIOLATIONS REGARDING

22 SUPPLY CHAIN RESPONSIBILITY PLANS.—Any per23 son who violates section 11(e)(3) by not submitting 

24 or posting a complete supply chain responsibility 


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1 plan each year shall be subject to a civil penalty of 

2 $50,000 for each month of noncompliance.’’. 

3 (b) NATIONAL LABOR RELATIONS ACT.— 

4 (1) SUPPLY CHAIN RESPONSIBILITY PLAN.— 

5 Section 8 of the National Labor Relations Act (29 

6 U.S.C. 158), as amended by section 102(b)(5), is 

7 further amended by adding at the end the following: 

8 ‘‘(i) SUPPLY CHAIN RESPONSIBILITY PLAN.—It shall 

9 be an unfair labor practice for an employer who is a cov10 ered employer, as defined in section 11(e)(1) of the Fair 

11 Labor Standards Act of 1938 (29 U.S.C. 211(e)(1)), to 

12 fail to annually— 

13 ‘‘(1) submit, as part of the covered employer’s 

14 supply chain responsibility plan under section 11(e) 

15 of such Act, the information required under such 

16 Act that relates to this Act; and 

17 ‘‘(2) include such information in the plan post18 ed publicly on the covered employer’s website.’’. 

19 (2) PENALTIES.—Section 12 of the National 

20 Labor Relations Act (29 U.S.C. 162), as amended 

21 by section 102(b)(7)(B), is further amended by in22 serting after subsection (c) the following: 

23 ‘‘(d) CIVIL PENALTY FOR FAILURE TO SUBMIT A

24 COMPLETE SUPPLY CHAIN RESPONSIBILITY PLAN.—Any 


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1 person who violates section 8(i) shall be subject to a civil 

2 penalty of $50,000 for each month of noncompliance.’’. 

3 (c) OCCUPATIONAL SAFETY AND HEALTH ACT OF

4 1970.— 

5 (1) SUPPLY CHAIN RESPONSIBILITY PLAN.— 

6 Section 5 of the Occupational Safety and Health Act 

7 of 1970 (29 U.S.C. 654) is amended by adding at 

8 the end the following: 

9 ‘‘(c) SUPPLY CHAIN RESPONSIBILITY PLAN.—An 

10 employer who is a covered employer, as defined in section 

11 11(e)(1) of the Fair Labor Standards Act of 1938 (29 

12 U.S.C. 211(e)(1)), shall annually— 

13 ‘‘(1) submit, as part of the employer’s supply 

14 chain responsibility plan under section 11(e) of such 

15 Act, the information required under such section 

16 that relates to this Act; and 

17 ‘‘(2) include such information in the plan post18 ed publicly on the employer’s website.’’. 

19 (2) PENALTIES.—Section 17 of the Occupa20 tional Safety and Health Act of 1970 (29 U.S.C. 

21 666), as amended by section 205(c)(2), is further 

22 amended by inserting after subsection (k) the fol23 lowing: 

24 ‘‘(l) PENALTIES FOR VIOLATIONS REGARDING SUP25 PLY CHAIN RESPONSIBILITY PLANS.—Any person who 


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1 violates section 5(c) shall be subject to a civil penalty of 

2 $50,000 for each month of noncompliance.’’. 

3 (d) FEDERAL MINE SAFETY AND HEALTH ACT OF

4 1977.— 

5 (1) SUPPLY CHAIN RESPONSIBILITY PLAN.— 

6 Section 109 of the Federal Mine Safety and Health 

7 Act of 1977 (30 U.S.C. 819) is amended— 

8 (A) in the section heading, by inserting ‘‘; 

9 SUPPLY CHAIN RESPONSIBILITY PLANS’’ after 

10 ‘‘DECISIONS’’; and 

11 (B) by adding at the end the following: 

12 ‘‘(e) SUPPLY CHAIN RESPONSIBILITY PLANS.—Each 

13 operator that is a covered employer, as defined in section 

14 11(e)(1) of the Fair Labor Standards Act of 1938 (29 

15 U.S.C. 211(e)(1)), shall annually— 

16 ‘‘(1) submit, as part of the operator’s supply 

17 chain responsibility plan under section 11(e) of such 

18 Act, the information required under such section 

19 that relates to this Act; and 

20 ‘‘(2) include such information in the plan post21 ed publicly on the operator’s website.’’. 

22 (2) PENALTIES.—Section 110 of the Federal 

23 Mine Safety and Health Act of 1977 (30 U.S.C. 

24 820), as amended by section 102(d)(6)(B), is furVerDate Sep 11 2014 22:42 Oct 26, 2020 Jkt 019200 PO 00000 Frm 00343 Fmt 6652 Sfmt 6201 E:\BILLS\S4738.IS S4738

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1 ther amended by inserting after subsection (j) the 

2 following: 

3 ‘‘(k) CIVIL PENALTY FOR FAILURE TO SUBMIT A

4 SUPPLY CHAIN RESPONSIBILITY PLAN.—Any operator 

5 who violates section 109(e) shall be subject to a civil pen6 alty of $50,000 for each month of noncompliance.’’. 

7 (e) MIGRANT AND SEASONAL AGRICULTURAL WORK8 ER PROTECTION ACT.— 

9 (1) SUPPLY CHAIN RESPONSIBILITY PLAN.— 

10 Title IV of the Migrant and Seasonal Agricultural 

11 Worker Protection Act (29 U.S.C. 1841 et seq.), as 

12 amended by section 102(e)(3)), is further amended 

13 by adding at the end the following: 

14 ‘‘SEC. 406. SUPPLY CHAIN RESPONSIBILITY PLAN. 

15 ‘‘(a) DEFINITION OF RESPONSIBLE ENTITY.—In this 

16 section, the term ‘responsible entity’ means a farm labor 

17 contractor, agricultural employer, or agricultural associa18 tion, that is a covered employer, as defined in section 

19 11(e)(1) of the Fair Labor Standards Act of 1938 (29 

20 U.S.C. 211(e)(1)). 

21 ‘‘(b) SUPPLY CHAIN RESPONSIBILITY PLANS.—Each 

22 responsible entity shall annually— 

23 ‘‘(1) submit, as part of the responsible entity’s 

24 supply chain responsibility plan under section 11(e) 


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1 of such Act, the information required under such 

2 section that relates to this Act; and 

3 ‘‘(2) include such information in the plan post4 ed publicly on the responsible entity’s website.’’. 

5 (2) PENALTIES.—Section 503(a) of the Migrant 

6 and Seasonal Agricultural Worker Protection Act 

7 (29 U.S.C. 1853(a)), as amended by section 

8 102(e)(6)(B), is further amended by adding at the 

9 end the following: 

10 ‘‘(5) PENALTIES FOR VIOLATIONS REGARDING

11 SUPPLY CHAIN RESPONSIBILITY PLANS.—Any per12 son who violates section 406(b) shall be subject to 

13 a civil penalty of $50,000 for each month of non14 compliance.’’. 

15 (f) DAVIS-BACON ACT.— 

16 (1) SUPPLY CHAIN RESPONSIBILITY PLAN.— 

17 Subchapter IV of chapter 31 of title 40, United 

18 States Code, as amended by this Act, is further 

19 amended by inserting after section 3143 the fol20 lowing: 

21 ‘‘§ 3143a. Supply chain responsibility plan 

22 ‘‘(a) COVERED CONTRACTOR.—In this section, the 

23 term ‘covered contractor’ means a contractor or subcon24 tractor— 


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1 ‘‘(1) for a contract subject to the requirements 

2 of this subchapter; and 

3 ‘‘(2) that is a covered employer, as defined in 

4 section 11(e)(1) of the Fair Labor Standards Act of 

5 1938 (29 U.S.C. 211(e)(1)). 

6 ‘‘(b) IN GENERAL.—Each covered contractor shall 

7 annually— 

8 ‘‘(1) submit, as part of the covered contractor’s 

9 supply chain responsibility plan under section 11(e) 

10 of such Act, the information required under such 

11 section that relates to this subchapter; and 

12 ‘‘(2) include such information in the plan post13 ed publicly on the covered contractor’s website.’’. 

14 (2) PENALTIES.—Section 3144c of title 40, 

15 United States Code, as amended by section 

16 204(f)(2), is further amended by inserting after sub17 section (b) the following: 

18 ‘‘(c) PENALTIES FOR VIOLATIONS REGARDING SUP19 PLY CHAIN RESPONSIBILITY PLANS.—Any person who 

20 violates section 3143a of this title shall be subject to a 

21 civil penalty of $50,000 for each month of noncompli22 ance.’’. 

23 (g) MCNAMARA-O’HARA SERVICE CONTRACT ACT.— 

24 Chapter 67 of title 41, United States Code, as amended 


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1 by section 202(b)(7)(A), is further amended by inserting 

2 after section 6704 the following: 

3 ‘‘§ 6705. Supply chain responsibility plan 

4 ‘‘(a) COVERED CONTRACTOR.—In this section, the 

5 term ‘covered contractor’ means a contractor or subcon6 tractor— 

7 ‘‘(1) for a contract subject to the requirements 

8 of this chapter; and 

9 ‘‘(2) that is a covered employer, as defined in 

10 section 11(e)(1) of the Fair Labor Standards Act of 

11 1938 (29 U.S.C. 211(e)(1)). 

12 ‘‘(b) IN GENERAL.—Each covered contractor shall 

13 annually— 

14 ‘‘(1) submit, as part of the covered contractor’s 

15 supply chain responsibility plan under section 11(e) 

16 of such Act, the information required under such 

17 section that relates to this chapter; and 

18 ‘‘(2) include such information in the plan post19 ed publicly on the covered contractor’s website. 

20 ‘‘(c) PENALTIES FOR VIOLATIONS REGARDING SUP21 PLY CHAIN RESPONSIBILITY PLANS.—Any person who 

22 violates subsection (b) of this section shall be subject to 

23 a civil penalty of $50,000 for each month of noncompli24 ance.’’. 


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1 (h) WALSH-HEALEY PUBLIC CONTRACTS ACT OF

2 1936.— 

3 (1) SUPPLY CHAIN RESPONSIBILITY PLAN.— 

4 Chapter 65 of title 41, United States Code, is fur5 ther amended by inserting after section 6502 the fol6 lowing: 

7 ‘‘§ 6502a. Supply chain responsibility plan 

8 ‘‘(a) COVERED CONTRACTOR.—In this section, the 

9 term ‘covered contractor’ means a contractor or subcon10 tractor— 

11 ‘‘(1) for a contract subject to the requirements 

12 of this chapter; and 

13 ‘‘(2) that is a covered employer, as defined in 

14 section 11(e)(1) of the Fair Labor Standards Act of 

15 1938 (29 U.S.C. 211(e)(1)). 

16 ‘‘(b) IN GENERAL.—Each covered contractor shall 

17 annually— 

18 ‘‘(1) submit, as part of the covered contractor’s 

19 supply chain responsibility plan under section 11(e) 

20 of such Act, the information required under such 

21 section that relates to this chapter; and 

22 ‘‘(2) include such information in the plan post23 ed publicly on the covered contractor’s website.’’. 

24 (2) PENALTIES.—Section 6506a of title 41, 

25 United States Code, as amended by section 


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1 202(c)(8), is further amended by inserting after sub2 section (b) the following: 

3 ‘‘(c) PENALTIES FOR VIOLATIONS REGARDING SUP4 PLY CHAIN RESPONSIBILITY PLANS.—Any person who 

5 violates section 6502a shall be subject to a civil penalty 

6 of $50,000 for each month of noncompliance.’’. 

7 (i) FAMILY AND MEDICAL LEAVE ACT OF 1993.— 

8 Section 109 of the Family and Medical Leave Act of 1993 

9 (29 U.S.C. 2619) is amended— 

10 (1) in the section heading, by inserting ‘‘; SUP11 PLY CHAIN RESPONSIBILITY PLAN’’ after ‘‘NO12 TICE’’; 

13 (2) by striking ‘‘IN GENERAL.—Each’’ and in14 serting the following: ‘‘NOTICE.— 

15 ‘‘(1) IN GENERAL.—Each’’; 

16 (3) by redesignating subsection (b) as para17 graph (2) of subsection (a), and aligning the mar18 gins of such paragraph with the margins of para19 graph (1); 

20 (4) in paragraph (2) (as so redesignated), by 

21 striking ‘‘this section’’ and inserting ‘‘this sub22 section’’; and 

23 (5) by adding at the end the following: 

24 ‘‘(b) SUPPLY CHAIN RESPONSIBILITY PLAN.— 


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1 ‘‘(1) IN GENERAL.—Each employer that is a 

2 covered employer, as defined in section 11(e)(1) of 

3 the Fair Labor Standards Act of 1938 (29 U.S.C. 

4 211(e)(1)), shall annually— 

5 ‘‘(A) submit, as part of the employer’s sup6 ply chain responsibility plan under section 11(e) 

7 of such Act, the information required under 

8 such section that relates to this Act; and 

9 ‘‘(B) include such information in the plan 

10 posted publicly on the employer’s website. 

11 ‘‘(2) PENALTY.—Any person who violates para12 graph (1) shall be subject to a civil penalty of 

13 $50,000 for each month of noncompliance.’’. 

14 (j) FEDERAL UNEMPLOYMENT TAX ACT (FUTA).— 

15 (1) STATE LAW REQUIREMENT.—Section 3304 

16 of the Internal Revenue Code of 1986 (relating to 

17 approval of State unemployment compensation laws) 

18 is amended— 

19 (A) in subsection (a)— 

20 (i) in paragraph (18), by striking 

21 ‘‘and’’ at the end; 

22 (ii) by redesignating paragraph (19) 

23 as paragraph (20); 

24 (iii) by inserting after paragraph (18) 

25 the following new paragraph: 


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1 ‘‘(19) each employer that is a covered employer, 

2 as defined in section 11(e)(1) of the Fair Labor 

3 Standards Act of 1938 (29 U.S.C. 211(e)(1)) is re4 quired to comply with subsection (h); and’’; and 

5 (iv) by adding at the end the fol6 lowing: 

7 ‘‘(h) SUPPLY CHAIN RESPONSIBILITY PLANS.—Each 

8 employer that is a covered employer, as defined in section 

9 11(e)(1) of the Fair Labor Standards Act of 1938 (29 

10 U.S.C. 211(e)(1)), shall annually— 

11 ‘‘(1) submit, as part of the employer’s supply 

12 chain responsibility plan under section 11(e) of such 

13 Act, the information required under such section 

14 that relates to this Act; and 

15 ‘‘(2) include such information in the plan post16 ed publicly on the operator’s website.’’. 

17 (2) EFFECTIVE DATE.—The amendments made 

18 by paragraph (1) shall apply to weeks of unemploy19 ment beginning on or after the earlier of— 

20 (A) the date the State changes its statutes, 

21 regulations, or policies in order to comply with 

22 such amendments; or 

23 (B) January 1, 2022. 


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1 SEC. 208. CONFORMING AMENDMENTS. 

2 (a) DAVIS-BACON ACT.—The table of sections of sub3 chapter IV of chapter 31 of title 40, United States Code, 

4 as amended by section 102(f)(7), is further amended— 

5 (1) by inserting after the item relating to sec6 tion 3413 the following: 

‘‘Sec. 3143a. Supply chain responsibility plan.’’; 

7 and 

8 (2) by inserting after the item relating to sec9 tion 3144a the following: 

‘‘Sec. 3144b. Applicability to multiple employers and related entities.’’. 

10 (b) MCNAMARA-O’HARA SERVICE CONTRACT ACT.— 

11 Chapter 67 of title 41, United States Code, is amended— 

12 (1) in the table of sections— 

13 (A) by redesignating the items relating to 

14 sections 6705, 6706, and 6707 as the items re15 lating to sections 6706, 6708, and 6709, re16 spectively; 

17 (B) by inserting after the item relating to 

18 section 6701 the following: 

‘‘Sec. 6701a. Applicability to multiple employers and related entities.’’; 

19 (C) by inserting after the item relating to 

20 section 6704 the following: 

‘‘Sec. 6705. Supply chain responsibility plan.’’; 

21 and 


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1 (D) by inserting after the item relating to 

2 section 6706 the following: 

‘‘Sec. 6707. Civil penalties assessed against owners, directors, officers, managing agents, and large shareholders; indemnification.’’; 

3 (2) in section 6704(b), by striking ‘‘sections 

4 6705 to 6707(d)’’ and inserting ‘‘sections 6706 to 

5 6709(d)’’; and 

6 (3) in section 6705(d), by striking ‘‘section 

7 6707(a)–(d)’’ and inserting ‘‘section 6709(a)–(d)’’. 

8 (c) WALSH-HEALEY PUBLIC CONTRACTS ACT.—The 

9 table of sections for chapter 65 of title 41, United States 

10 Code, as amended by section 102(g)(7), is further amend11 ed— 

12 (1) by inserting after the item relating to sec13 tion 6501a the following: 

‘‘Sec. 6501b. Applicability to multiple employers and related entities.’’; 

14 and 

15 (2) by inserting after the item relating to sec16 tion 6502 the following: 

‘‘Sec. 6502a. Supply chain responsibility plan.’’. 


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1 TITLE III—PUBLIC TRANS2 PARENCY ON WORKERS’ 

3 RIGHTS VIOLATIONS 

4 SEC. 301. CONSUMER RIGHT TO KNOW ABOUT COMPLIANCE 

5 WITH WORKERS’ RIGHTS. 

6 (a) IN GENERAL.—The Fair Labor Standards Act of 

7 1938 (29 U.S.C. 201 et seq.) is amended by inserting 

8 after section 18C (29 U.S.C. 218c) the following: 

9 ‘‘SEC. 18D. COMPLIANCE RATINGS. 

10 ‘‘(a) REQUIREMENT FOR POSTING NOTICE.—An em11 ployer shall post a notice, provided each calendar year by 

12 the Secretary under subsection (b), of the compliance of 

13 the employer with the covered labor laws during the 3 cal14 endar years preceding the calendar year for which the no15 tice applies (referred to in this section as the ‘applicable 

16 3-year period’). Such notice shall be posted— 

17 ‘‘(1) in each location of the employer— 

18 ‘‘(A) in a window that is located not less 

19 than 5 feet from the main entry way of such lo20 cation; or 

21 ‘‘(B) if such a location does not have a 

22 window located within 5 feet of the main entry 

23 way, otherwise within 5 feet of the main entry 

24 way; 


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1 ‘‘(2) on the official website of the employer, if 

2 the employer has such a website; and 

3 ‘‘(3) until the notice is replaced by a revised no4 tice under this section or a notice for a subsequent 

5 calendar year. 

6 ‘‘(b) RATING PROCESS.— 

7 ‘‘(1) IN GENERAL.—The Secretary shall estab8 lish— 

9 ‘‘(A) in accordance with paragraph (2), a 

10 process for annually— 

11 ‘‘(i) reviewing the compliance of each 

12 employer with the covered labor laws dur13 ing the applicable 3-year period; and 

14 ‘‘(ii) providing a rating to each em15 ployer indicating the level of such compli16 ance; and 

17 ‘‘(B) a notice for each employer to post in 

18 accordance with subsection (a), which shall— 

19 ‘‘(i) be easy for the public to under20 stand; 

21 ‘‘(ii) indicate the rating under this 

22 subsection of the employer for the calendar 

23 year; and 

24 ‘‘(iii) otherwise be consistent across 

25 all employers. 


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1 ‘‘(2) RATING.— 

2 ‘‘(A) IN GENERAL.—The notice required 

3 under subsection (a) shall provide a rating of 

4 the employer’s compliance with the covered 

5 labor laws during the applicable 3-year period 

6 in the form of one of 4 ratings described in sub7 paragraph (B), including— 

8 ‘‘(i) a concise summary, in English, of 

9 the compliance of the employer with the 

10 covered labor laws during the applicable 3- 

11 year period; 

12 ‘‘(ii) an emoji face or cartoon face 

13 that reflects such summary; and 

14 ‘‘(iii) a color that reflects such sum15 mary. 

16 ‘‘(B) REGULATIONS.—The Secretary shall 

17 prescribe through regulations the number, de18 gree, and extent of violations of the covered 

19 labor laws by an employer during the applicable 

20 3-year period that would qualify for each of the 

21 following 4 ratings: 

22 ‘‘(i) A rating of ‘Excellent’— 

23 ‘‘(I) meaning the employer has 

24 had no or few violations of the covered 

25 labor laws during such period; and 


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1 ‘‘(II) which shall be paired with a 

2 very open-mouthed smiling face and a 

3 deep-green background color. 

4 ‘‘(ii) A rating of ‘Good’— 

5 ‘‘(I) meaning the employer has 

6 had some violations of the covered 

7 labor laws during such period, but no 

8 major or extensive violations; and 

9 ‘‘(II) which shall be paired with a 

10 wide-smiling face and a light-green 

11 background color. 

12 ‘‘(iii) A rating of ‘Okay’— 

13 ‘‘(I) meaning the employer has 

14 had, during such period— 

15 ‘‘(aa) multiple violations of 

16 the covered labor laws; or 

17 ‘‘(bb) very few major or ex18 tensive violations of the covered 

19 labor laws; and 

20 ‘‘(II) which shall be paired with a 

21 flat-mouthed and unenthusiastic face 

22 and a yellow background color. 

23 ‘‘(iv) A rating of ‘Needs Improve24 ment’— 


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1 ‘‘(I) meaning the employer has 

2 had, during such period— 

3 ‘‘(aa) several violations of 

4 the covered labor laws; 

5 ‘‘(bb) more than a few 

6 major or extensive violations of 

7 the covered labor laws; or 

8 ‘‘(cc) willful or repeated vio9 lations of the covered labor laws 

10 (as defined by the Secretary with 

11 respect to the covered labor 

12 laws); and 

13 ‘‘(II) which shall be paired with a 

14 frowning sad face and a gray back15 ground color. 

16 ‘‘(3) REVIEW PROCESS.—For each review under 

17 this section of the compliance of an employer with 

18 the covered labor laws, including any additional re19 view under subsection (c) or (d), the Secretary shall 

20 review— 

21 ‘‘(A) any information the employer pro22 vides to the Secretary with respect to the com23 pliance of the employer with the covered labor 

24 laws for the applicable 3-year period; 


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1 ‘‘(B) any information provided by any 

2 other individual or organization with respect to 

3 such compliance; and 

4 ‘‘(C) any other information the Secretary 

5 determines appropriate for the review. 

6 ‘‘(c) ADDITIONAL REVIEW UPON CLAIM OF INACCU7 RACY.— 

8 ‘‘(1) REQUEST.—If an employer claims that the 

9 rating provided for the employer under this section 

10 is inaccurate, the employer may, not later than 10 

11 days after receiving the notice under this section, re12 quest an additional review by the Secretary of the 

13 employer’s compliance with the covered labor laws 

14 during the applicable 3-year period and a revised 

15 rating and notice. 

16 ‘‘(2) DETERMINATION.— 

17 ‘‘(A) IN GENERAL.—For each request 

18 made under paragraph (1), the Secretary shall 

19 conduct an additional review described in such 

20 paragraph and make a determination of wheth21 er to provide a revised rating and notice. 

22 ‘‘(B) REVISED RATING GRANTED.—If the 

23 Secretary determines that an alteration of the 

24 rating is warranted, the Secretary may provide 

25 the employer a revised rating and notice under 


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1 this section. The employer shall, in accordance 

2 with subsection (a), post any such revised no3 tice not later than 5 days after receiving such 

4 revised notice. 

5 ‘‘(C) REVISED RATING DENIED.—If the 

6 Secretary determines that no alteration of the 

7 rating is warranted— 

8 ‘‘(i) the Secretary shall notify the em9 ployer of such determination; and 

10 ‘‘(ii) the employer shall, in accordance 

11 with subsection (a), post the notice for 

12 which such review was conducted not later 

13 than 5 days after receiving the notification 

14 described in clause (i). 

15 ‘‘(D) POSTING OF NOTICE DURING RE16 VIEW.—If an employer claims that a rating 

17 under this section for a calendar year is inac18 curate and submits a request under paragraph 

19 (1) for an additional review of such rating, the 

20 employer may refrain from posting the notice 

21 under this section for such calendar year during 

22 the period of such additional review. If an em23 ployer so refrains from posting such notice, the 

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1 endar year (if the employer received such a no2 tice) posted in accordance with subsection (a) 

3 during the period of such additional review. 

4 ‘‘(E) LIMITATION.—An employer may not 

5 request an additional review of a rating for a 

6 calendar year under this subsection if the em7 ployer has previously requested such an addi8 tional review for the rating for such calendar 

9 year. 

10 ‘‘(d) ADDITIONAL REVIEW UPON REMEDY OF VIOLA11 TIONS.— 

12 ‘‘(1) REQUEST.—If, after receiving a notice 

13 under this section for a calendar year, an employer 

14 claims that the employer has, not later than the end 

15 of such calendar year, fully remedied a violation that 

16 affected the rating of the employer under this sec17 tion for that year and has reformed the practices of 

18 the employer to ensure future compliance with the 

19 covered labor laws, the employer may request an ad20 ditional review of the employer’s compliance with the 

21 covered labor laws, during the period beginning on 

22 the first day of the applicable 3-year period and end23 ing on the date on which the employer submits the 

24 request, and a revised rating and notice under this 

25 section for the year. 


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1 ‘‘(2) DETERMINATION.— 

2 ‘‘(A) IN GENERAL.—For each request 

3 made under paragraph (1), the Secretary shall 

4 conduct a review described in such paragraph 

5 and make a determination as to whether to pro6 vide a revised rating and notice. 

7 ‘‘(B) REVISED RATING GRANTED.—If the 

8 Secretary determines that the employer has, 

9 during the period beginning on the first day of 

10 the applicable 3-year period and ending on the 

11 date on which the employer submits the request 

12 under paragraph (1), fully remedied the viola13 tion with respect to which the employer sub14 mitted the request and has reformed its prac15 tices to ensure future compliance with the cov16 ered labor laws— 

17 ‘‘(i) the Secretary may provide the 

18 employer with a revised rating and notice 

19 under this section; and 

20 ‘‘(ii) if the Secretary provides a re21 vised rating and notice under clause (i), 

22 the employer shall, in accordance with sub23 section (a), post such revised notice not 

24 later than 5 days after receiving such re25 vised notice. 


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1 ‘‘(C) REVISED RATING DENIED.—If the 

2 Secretary decides not to grant a revised rating 

3 and notice under this subsection, the Secretary 

4 shall notify the employer of such decision. 

5 ‘‘(D) POSTING OF NOTICE DURING RE6 VIEW.—An employer shall keep the notice for 

7 which a review under this subsection applies 

8 posted in accordance with subsection (a) until 

9 the Secretary, if applicable, provides a revised 

10 rating and notice under subparagraph (B)(i). 

11 ‘‘(e) FINAL REVIEW.—Except for the reviews de12 scribed in subsections (c) and (d), there shall be no other 

13 reviews, including judicial review, of the determinations of 

14 the Secretary regarding the rating of an employer under 

15 this section. 

16 ‘‘(f) POSTING IN LOCAL NEWSPAPER.—If an em17 ployer violates a provision of this section for more than 

18 one month, the employer shall, in addition to the penalties 

19 under section 16(e)(11), publish the notice provided under 

20 this section in the most prominent local newspaper, as de21 termined by the Secretary. 

22 ‘‘(g) PUBLIC WEBSITE.— 

23 ‘‘(1) IN GENERAL.—The Secretary shall estab24 lish and maintain a public website that includes— 


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1 ‘‘(A) the most recent rating, and all pre2 vious ratings, under this section for each em3 ployer, which shall be accessible through a sim4 ple search feature— 

5 ‘‘(i) by employer name, city, or zip 

6 code; and 

7 ‘‘(ii) by location on a digital map; and 

8 ‘‘(B) an accounting of every violation by 

9 each employer during the 3-year period of the 

10 most recent rating under this section. 

11 ‘‘(2) RANKINGS.—The Secretary may use the 

12 website under this subsection to provide rankings of 

13 employers, including by comparing employers to 

14 other employers in the same industry. 

15 ‘‘(h) DEFINITION OF COVERED LABOR LAWS.—For 

16 purposes of this section, the term ‘covered labor laws’ 

17 means, to the extent applicable to the employer, each of 

18 the following: 

19 ‘‘(1) This Act. 

20 ‘‘(2) The Occupational Safety and Health Act 

21 of 1970 (29 U.S.C. 651 et seq.). 

22 ‘‘(3) The Federal Mine Safety and Health Act 

23 of 1977 (30 U.S.C. 801 et seq.). 

24 ‘‘(4) The Migrant and Seasonal Agricultural 

25 Worker Protection Act (29 U.S.C. 1801 et seq.). 


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1 ‘‘(5) The National Labor Relations Act (29 

2 U.S.C. 151 et seq.). 

3 ‘‘(6) Subchapter IV of chapter 31 of title 40, 

4 United States Code (commonly known as the ‘Davis5 Bacon Act’). 

6 ‘‘(7) Chapter 67 of title 41, United States Code 

7 (commonly known as the ‘McNamara-O’Hara Serv8 ice Contract Act’). 

9 ‘‘(8) Section 503 of the Rehabilitation Act of 

10 1973 (29 U.S.C. 793). 

11 ‘‘(9) The Family and Medical Leave Act of 

12 1993 (29 U.S.C. 2601 et seq.). 

13 ‘‘(10) Title VII of the Civil Rights Act of 1964 

14 (42 U.S.C. 2000e et seq.). 

15 ‘‘(11) The Americans with Disabilities Act of 

16 1990 (42 U.S.C. 12101 et seq.). 

17 ‘‘(12) The Age Discrimination in Employment 

18 Act of 1967 (29 U.S.C. 621 et seq.). 

19 ‘‘(13) Title II of the Genetic Information Non20 discrimination Act of 2008 (42 U.S.C. 2000ff et 

21 seq.). 

22 ‘‘(14) Any State law that the Secretary deter23 mines is equivalent to a law described in any of 

24 paragraphs (1) through (13).’’. 


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1 (b) PENALTIES.—Section 16(e) of the Fair Labor 

2 Standards Act of 1938 (29 U.S.C. 216(e)), as amended 

3 by section 207(a)(2), is further amended by adding at the 

4 end the following: 

5 ‘‘(11) PENALTIES FOR VIOLATIONS OF COMPLIANCE

6 RATING PROVISIONS.—Any person who violates section 

7 18D shall be subject to a civil penalty of not more than 

8 $1,000 for each employee of the employer working at the 

9 location where the violation occurred and for each day of 

10 the violation.’’. 

11 TITLE IV—CREATING BROAD 

12 AND INCREASING WORKER 

13 PROTECTIONS 

14 SEC. 401. GENERAL STANDARDS FOR APPLYING AND IN15 TERPRETING WORKERS’ RIGHTS. 

16 (a) FAIR LABOR STANDARDS ACT OF 1938.—The 

17 Fair Labor Standards Act of 1938 (29 U.S.C. 201 et seq.) 

18 is amended by adding at the end the following: 

19 ‘‘SEC. 20. GENERAL STANDARDS FOR APPLYING AND INTER20 PRETING WORKERS’ RIGHTS. 

21 ‘‘(a) INTERPRETATION OF PROTECTIONS AND EX22 EMPTIONS.— 

23 ‘‘(1) PROTECTIONS.—All protections afforded 

24 employees under this Act, including as applied 

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1 terpreted expansively in favor of the employee or in2 dividual claiming classification as an employee. 

3 ‘‘(2) EXEMPTIONS AND EXCLUSIONS.— 

4 ‘‘(A) IN GENERAL.—All exemptions and 

5 exclusions under this Act, including as applied 

6 through the definitions under section 3, shall be 

7 interpreted narrowly against the employer, or 

8 person alleged to be an employer, and limited in 

9 application to those persons or circumstances 

10 plainly and unmistakably within the language 

11 and spirit of the exemption or exclusion. 

12 ‘‘(B) CLEAR AND CONVINCING EVI13 DENCE.—Any person asserting the applicability 

14 of an exemption or exclusion under this Act 

15 shall prove such applicability by clear and con16 vincing evidence. 

17 ‘‘(b) NO-LESS-PROTECTION RULE.— 

18 ‘‘(1) IN GENERAL.—The Secretary shall not 

19 take any action to reduce a protection afforded an 

20 employee under this Act through any regulation, 

21 guidance, opinion, ruling, standard, order, adjudica22 tive decision, or other interpretation from the protec23 tion provided to the employee through a prior regu24 lation, guidance, opinion, ruling, standard, order, ad25 judicative decision, or other interpretation in effect 


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1 on the day before the date of such action, unless 

2 such reduction is explicitly and specifically mandated 

3 by an Act of Congress. 

4 ‘‘(2) REQUEST FOR CONGRESSIONAL ACTION.— 

5 The Secretary may submit a proposal to Congress 

6 for a reduction described in paragraph (1), but shall 

7 not take any action described in such paragraph 

8 without an explicit and specific mandate by an Act 

9 of Congress. 

10 ‘‘(3) STANDARD OF DEFERENCE.—Notwith11 standing chapter 7 of title 5, United States Code, in 

12 any action for judicial review of an agency action 

13 under such chapter, a reviewing court shall defer to 

14 a regulation, guidance, opinion, ruling, standard, 

15 order, adjudicative decision, or other interpretation 

16 issued by the agency that increases or otherwise 

17 strengthens a protection afforded to an employee 

18 under this Act unless such regulation, guidance, 

19 opinion, ruling, standard, order, adjudicative deci20 sion, or other interpretation is plainly erroneous or 

21 inconsistent with this Act.’’. 

22 (b) NATIONAL LABOR RELATIONS ACT.—The Na23 tional Labor Relations Act (29 U.S.C. 151 et seq.) is 

24 amended by adding at the end the following: 


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1 ‘‘SEC. 20. GENERAL STANDARDS FOR APPLYING AND INTER2 PRETING WORKERS’ RIGHTS. 

3 ‘‘(a) INTERPRETATION OF PROTECTIONS AND EX4 EMPTIONS.— 

5 ‘‘(1) PROTECTIONS.—All protections afforded 

6 employees under this Act, including as applied 

7 through the definitions under section 2, shall be in8 terpreted expansively in favor of the employee or in9 dividual claiming classification as an employee. 

10 ‘‘(2) EXEMPTIONS AND EXCLUSIONS.— 

11 ‘‘(A) IN GENERAL.—All exemptions and 

12 exclusions under this Act, including as applied 

13 through the definitions under section 2, shall be 

14 interpreted narrowly against the employer, or 

15 person alleged to be an employer, and limited in 

16 application to those persons or circumstances 

17 plainly and unmistakably within the language 

18 and spirit of the exemption or exclusion. 

19 ‘‘(B) CLEAR AND CONVINCING EVI20 DENCE.—Any person asserting the applicability 

21 of an exemption or exclusion under this Act 

22 shall prove such applicability by clear and con23 vincing evidence. 

24 ‘‘(b) NO-LESS-PROTECTION RULE.— 

25 ‘‘(1) IN GENERAL.—The Board, the General 

26 Counsel, and any regional director shall not take any 


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1 action to reduce a protection afforded an employee 

2 under this Act through any regulation, guidance, 

3 opinion, ruling, standard, order, adjudicative deci4 sion, or other interpretation from the protection pro5 vided to the employee through a prior regulation, 

6 guidance, opinion, ruling, standard, order, adjudica7 tive decision, or other interpretation in effect on the 

8 day before the date of such action, unless such re9 duction is explicitly and specifically mandated by an 

10 Act of Congress. 

11 ‘‘(2) REQUEST FOR CONGRESSIONAL ACTION.— 

12 The Board may submit a proposal to Congress for 

13 a reduction described in paragraph (1), but the 

14 Board, the General Counsel, or any regional director 

15 shall not take any action described in such para16 graph without an explicit and specific mandate by 

17 an Act of Congress. 

18 ‘‘(3) STANDARD OF DEFERENCE.—Notwith19 standing chapter 7 of title 5, United States Code, in 

20 any action for judicial review of an agency action 

21 under such chapter, a reviewing court shall defer to 

22 a regulation, guidance, opinion, ruling, standard, 

23 order, adjudicative decision, or other interpretation 

24 issued by the agency that increases or otherwise 

25 strengthens a protection afforded to an employee 


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1 under this Act unless such regulation, guidance, 

2 opinion, ruling, standard, order, adjudicative deci3 sion, or other interpretation is plainly erroneous or 

4 inconsistent with this Act.’’. 

5 (c) OCCUPATIONAL SAFETY AND HEALTH ACT OF

6 1970.—The Occupational Safety and Health Act of 1970 

7 (29 U.S.C. 651 et seq.) is amended by inserting after sec8 tion 32 (29 U.S.C. 677) the following: 

9 ‘‘SEC. 32A. GENERAL STANDARDS FOR APPLYING AND IN10 TERPRETING WORKERS’ RIGHTS. 

11 ‘‘(a) INTERPRETATION OF PROTECTIONS AND EX12 EMPTIONS.— 

13 ‘‘(1) PROTECTIONS.—All protections afforded 

14 employees under this Act, including as applied 

15 through the definitions under section 3, shall be in16 terpreted expansively in favor of the employee or in17 dividual claiming classification as an employee. 

18 ‘‘(2) EXEMPTIONS AND EXCLUSIONS.— 

19 ‘‘(A) IN GENERAL.—All exemptions and 

20 exclusions under this Act, including as applied 

21 through the definitions under section 3, shall be 

22 interpreted narrowly against the employer, or 

23 person alleged to be an employer, and limited in 

24 application to those persons or circumstances 


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1 plainly and unmistakably within the language 

2 and spirit of the exemption or exclusion. 

3 ‘‘(B) CLEAR AND CONVINCING EVI4 DENCE.—Any person asserting the applicability 

5 of an exemption or exclusion under this Act 

6 shall prove such applicability by clear and con7 vincing evidence. 

8 ‘‘(b) NO-LESS-PROTECTION RULE.— 

9 ‘‘(1) IN GENERAL.—The Secretary shall not 

10 take any action to reduce a protection afforded an 

11 employee under this Act through any regulation, 

12 guidance, opinion, ruling, standard, order, adjudica13 tive decision, or other interpretation from the protec14 tion provided to the employee through a prior regu15 lation, guidance, opinion, ruling, standard, order, ad16 judicative decision, or other interpretation in effect 

17 on the day before the date of such action, unless 

18 such reduction is explicitly and specifically mandated 

19 by an Act of Congress. 

20 ‘‘(2) REQUEST FOR CONGRESSIONAL ACTION.— 

21 The Secretary may submit a proposal to Congress 

22 for a reduction described in paragraph (1), but shall 

23 not take any action described in such paragraph 

24 without an explicit and specific mandate by an Act 

25 of Congress. 


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1 ‘‘(3) STANDARD OF DEFERENCE.—Notwith2 standing chapter 7 of title 5, United States Code, in 

3 any action for judicial review of an agency action 

4 under such chapter, a reviewing court shall defer to 

5 a regulation, guidance, opinion, ruling, standard, 

6 order, adjudicative decision, or other interpretation 

7 issued by the agency that increases or otherwise 

8 strengthens a protection afforded to an employee 

9 under this Act unless such regulation, guidance, 

10 opinion, ruling, standard, order, adjudicative deci11 sion, or other interpretation is plainly erroneous or 

12 inconsistent with this Act.’’. 

13 (d) FEDERAL MINE SAFETY AND HEALTH ACT OF

14 1977.—Title I of the Federal Mine Safety and Health Act 

15 (30 U.S.C. 811 et seq.), as amended by section 202(b)(4), 

16 is further amended by adding at the end the following: 

17 ‘‘SEC. 119. GENERAL STANDARDS FOR APPLYING AND IN18 TERPRETING WORKERS’ RIGHTS. 

19 ‘‘(a) INTERPRETATION OF PROTECTIONS AND EX20 EMPTIONS.— 

21 ‘‘(1) PROTECTIONS.—All protections afforded 

22 under this Act, including any mandatory health or 

23 safety standard, rule, order, or regulation promul24 gated pursuant to this Act, to employees performing 

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1 pansively in favor of the employee or individual 

2 claiming classification as an employee. 

3 ‘‘(2) EXEMPTIONS AND EXCLUSIONS.— 

4 ‘‘(A) IN GENERAL.—All exemptions and 

5 exclusions under this Act, including any manda6 tory health or safety standard, rule, order, or 

7 regulation promulgated pursuant to this Act, 

8 shall be interpreted narrowly against an oper9 ator of a coal or other mine employing employ10 ees performing labor in the coal or other mine, 

11 or person alleged to be such an operator, and 

12 limited in application to those persons or cir13 cumstances plainly and unmistakably within the 

14 language and spirit of the exemption or exclu15 sion. 

16 ‘‘(B) CLEAR AND CONVINCING EVI17 DENCE.—Any person asserting the applicability 

18 of an exemption or exclusion under this Act, in19 cluding any mandatory health or safety stand20 ard, rule, order, or regulation promulgated pur21 suant to this Act, shall prove such applicability 

22 by clear and convincing evidence. 

23 ‘‘(b) NO-LESS-PROTECTION RULE.— 

24 ‘‘(1) IN GENERAL.—The Secretary shall not 

25 take any action to reduce a protection afforded 


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1 under this Act, including any mandatory health or 

2 safety standard, rule, order, or regulation promul3 gated pursuant to this Act, to an employee per4 forming labor in a coal or other mine through any 

5 regulation, guidance, opinion, ruling, standard, 

6 order, adjudicative decision, or other interpretation 

7 from the protection provided to the employee 

8 through a prior regulation, guidance, opinion, ruling, 

9 standard, order, adjudicative decision, or other inter10 pretation in effect on the day before the date of such 

11 action, unless such reduction is explicitly and specifi12 cally mandated by an Act of Congress. 

13 ‘‘(2) REQUEST FOR CONGRESSIONAL ACTION.— 

14 The Secretary may submit a proposal to Congress 

15 for a reduction described in paragraph (1), but shall 

16 not take any action described in such paragraph 

17 without an explicit and specific mandate by an Act 

18 of Congress. 

19 ‘‘(3) STANDARD OF DEFERENCE.—Notwith20 standing chapter 7 of title 5, United States Code, in 

21 any action for judicial review of an agency action 

22 under such chapter, a reviewing court shall defer to 

23 a regulation, guidance, opinion, ruling, standard, 

24 order, adjudicative decision, or other interpretation 

25 issued by the agency that increases or otherwise 


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1 strengthens a protection afforded to an employee 

2 performing labor in a coal or other mine under this 

3 Act, including any mandatory health or safety stand4 ard, rule, order, or regulation promulgated pursuant 

5 to this Act, unless such regulation, guidance, opin6 ion, ruling, standard, order, adjudicative decision, or 

7 other interpretation is plainly erroneous or incon8 sistent with this Act, including any mandatory 

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

10 promulgated pursuant to this Act.’’. 

11 (e) MIGRANT AND SEASONAL AGRICULTURAL WORK12 ER PROTECTION ACT.—Part B of title V of the Migrant 

13 and Seasonal Agricultural Worker Protection Act (29 

14 U.S.C. 1861 et seq.) is amended by adding at the end 

15 the following: 

16 ‘‘SEC. 514. GENERAL STANDARDS FOR APPLYING AND IN17 TERPRETING WORKERS’ RIGHTS. 

18 ‘‘(a) INTERPRETATION OF PROTECTIONS AND EX19 EMPTIONS.— 

20 ‘‘(1) PROTECTIONS.—All protections afforded 

21 under this Act, including any regulation under this 

22 Act, to migrant agricultural workers or seasonal ag23 ricultural workers shall be interpreted expansively in 

24 favor of the worker or individual claiming classifica25 tion as such a worker. 


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1 ‘‘(2) EXEMPTIONS AND EXCLUSION.— 

2 ‘‘(A) IN GENERAL.—All exemptions and 

3 exclusions under this Act, including any regula4 tion under this Act, shall be interpreted nar5 rowly against an agricultural employer, agricul6 tural association, or farm labor contractor em7 ploying a migrant agricultural worker or sea8 sonal agricultural worker, or person alleged to 

9 be such an employer, association, or contractor, 

10 and limited in application to those persons or 

11 circumstances plainly and unmistakably within 

12 the language and spirit of the exemption or ex13 clusion. 

14 ‘‘(B) CLEAR AND CONVINCING EVI15 DENCE.—Any person asserting the applicability 

16 of an exemption or exclusion under this Act, in17 cluding a regulation under this Act, shall prove 

18 such applicability by clear and convincing evi19 dence. 

20 ‘‘(b) NO-LESS-PROTECTION RULE.— 

21 ‘‘(1) IN GENERAL.—The Secretary shall not 

22 take any action to reduce a protection afforded 

23 under this Act, including a regulation under this 

24 Act, to a migrant agricultural worker or a seasonal 

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1 ance, opinion, ruling, standard, order, adjudicative 

2 decision, or other interpretation from the protection 

3 provided to the worker through a prior regulation, 

4 guidance, opinion, ruling, standard, order, adjudica5 tive decision, or other interpretation in effect on the 

6 day before the date of such action, unless such re7 duction is explicitly and specifically mandated by an 

8 Act of Congress. 

9 ‘‘(2) REQUEST FOR CONGRESSIONAL ACTION.— 

10 The Secretary may submit a proposal to Congress 

11 for a reduction described in paragraph (1), but shall 

12 not take any action described in such paragraph 

13 without an explicit and specific mandate by an Act 

14 of Congress. 

15 ‘‘(3) STANDARD OF DEFERENCE.—Notwith16 standing chapter 7 of title 5, United States Code, in 

17 any action for judicial review of an agency action 

18 under such chapter, a reviewing court shall defer to 

19 a regulation, guidance, opinion, ruling, standard, 

20 order, adjudicative decision, or other interpretation 

21 issued by the agency that increases or otherwise 

22 strengthens a protection afforded under this Act, in23 cluding a regulation under this Act, to a migrant ag24 ricultural worker or seasonal agricultural worker un25 less such regulation, guidance, opinion, ruling, 


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1 standard, order, adjudicative decision, or other inter2 pretation is plainly erroneous or inconsistent with 

3 this Act, including a regulation under this Act.’’. 

4 (f) DAVIS-BACON ACT.— 

5 (1) IN GENERAL.—Subchapter IV of chapter 

6 31, United States Code, is amended by adding at 

7 the end the following: 

8 ‘‘SEC. 3149. GENERAL STANDARDS FOR APPLYING AND IN9 TERPRETING WORKERS’ RIGHTS. 

10 ‘‘(a) INTERPRETATION OF PROTECTIONS AND EX11 EMPTIONS.— 

12 ‘‘(1) PROTECTIONS.—All protections afforded 

13 under this subchapter to laborers and mechanics 

14 who are employees performing labor under a con15 tract or subcontract to which this subchapter applies 

16 shall be interpreted expansively in favor of such la17 borer or mechanic or individual claiming classifica18 tion as such a laborer or mechanic. 

19 ‘‘(2) EXEMPTIONS AND EXCLUSIONS.— 

20 ‘‘(A) IN GENERAL.—All exemptions and 

21 exclusions under this subchapter shall be inter22 preted narrowly against a contractor or subcon23 tractor of a contract to which this subchapter 

24 applies, or person alleged to be such a con25 tractor or subcontractor, and limited in applicaVerDate Sep 11 2014 22:42 Oct 26, 2020 Jkt 019200 PO 00000 Frm 00379 Fmt 6652 Sfmt 6201 E:\BILLS\S4738.IS S4738

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1 tion to those persons or circumstances plainly 

2 and unmistakably within the language and spir3 it of the exemption or exclusion. 

4 ‘‘(B) CLEAR AND CONVINCING EVI5 DENCE.—Any person asserting the applicability 

6 of an exemption or exclusion under this sub7 chapter shall prove such applicability by clear 

8 and convincing evidence. 

9 ‘‘(b) NO-LESS-PROTECTION RULE.— 

10 ‘‘(1) IN GENERAL.—The Secretary shall not 

11 take any action to reduce a protection afforded 

12 under this subchapter to a laborer or mechanic who 

13 is an employee performing labor under a contract or 

14 subcontract to which this subchapter applies through 

15 any regulation, guidance, opinion, ruling, standard, 

16 order, adjudicative decision, or other interpretation 

17 from the protection provided to such laborer or me18 chanic through a prior regulation, guidance, opinion, 

19 ruling, standard, order, adjudicative decision, or 

20 other interpretation in effect on the day before the 

21 date of such action, unless such reduction is explic22 itly and specifically mandated by an Act of Con23 gress. 

24 ‘‘(2) REQUEST FOR CONGRESSIONAL ACTION.— 

25 The Secretary may submit a proposal to Congress 


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1 for a reduction described in paragraph (1), but shall 

2 not take any action described in such paragraph 

3 without an explicit and specific mandate by an Act 

4 of Congress. 

5 ‘‘(3) STANDARD OF DEFERENCE.—Notwith6 standing chapter 7 of title 5, United States Code, in 

7 any action for judicial review of an agency action 

8 under such chapter, a reviewing court shall defer to 

9 a regulation, guidance, opinion, ruling, standard, 

10 order, adjudicative decision, or other interpretation 

11 issued by the agency that increases or otherwise 

12 strengthens a protection afforded under this sub13 chapter to a laborer or mechanic who is an employee 

14 performing labor under a contract or subcontract to 

15 which this subchapter applies unless such regulation, 

16 guidance, opinion, ruling, standard, order, adjudica17 tive decision, or other interpretation is plainly erro18 neous or inconsistent with this subchapter.’’. 

19 (2) TABLE OF SECTIONS.—The table of sections 

20 for subchapter IV of chapter 31 of title 40, United 

21 States Code, is amended by adding at the end the 

22 following: 

Sec. 3149. General standards for applying and interpreting workers’ rights. 

23 (g) MCNAMARA-O’HARA SERVICE CONTRACT ACT.— 

24 Section 6709 of title 41, United States Code, as amended 


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1 by section 202(b)(7)(A), is further amended by adding at 

2 the end the following: 

3 ‘‘(g) GENERAL STANDARDS FOR APPLYING AND IN4 TERPRETING WORKERS’ RIGHTS.— 

5 ‘‘(1) INTERPRETATION OF PROTECTIONS AND

6 EXEMPTIONS.— 

7 ‘‘(A) PROTECTIONS.—All protections af8 forded service employees under this chapter 

9 shall be interpreted expansively in favor of the 

10 service employee or individual claiming classi11 fication as a service employee. 

12 ‘‘(B) EXEMPTIONS AND EXCLUSIONS.— 

13 ‘‘(i) IN GENERAL.—All exemptions 

14 and exclusions under this chapter shall be 

15 interpreted narrowly against the contractor 

16 or subcontractor to which this chapter ap17 plies, or person alleged to be such a con18 tractor or subcontractor, and limited in ap19 plication to those persons or circumstances 

20 plainly and unmistakably within the lan21 guage and spirit of the exemption or exclu22 sion. 

23 ‘‘(ii) CLEAR AND CONVINCING EVI24 DENCE.—Any person asserting the applica25 bility of an exemption or exclusion under 


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1 this chapter shall prove such applicability 

2 by clear and convincing evidence. 

3 ‘‘(2) NO-LESS-PROTECTION RULE.— 

4 ‘‘(A) IN GENERAL.—The Secretary shall 

5 not take any action to reduce a protection af6 forded under this chapter to a service employee 

7 through any regulation, guidance, opinion, rul8 ing, standard, order, adjudicative decision, or 

9 other interpretation from the protection pro10 vided to the service employee through a prior 

11 regulation, guidance, opinion, ruling, standard, 

12 order, adjudicative decision, or other interpreta13 tion in effect on the day before the date of such 

14 action, unless such reduction is explicitly and 

15 specifically mandated by an Act of Congress. 

16 ‘‘(B) REQUEST FOR CONGRESSIONAL AC17 TION.—The Secretary may submit a proposal to 

18 Congress for a reduction described in subpara19 graph (A), but shall not take any action de20 scribed in such subparagraph without an ex21 plicit and specific mandate by an Act of Con22 gress. 

23 ‘‘(C) STANDARD OF DEFERENCE.—Not24 withstanding chapter 7 of title 5, United States 

25 Code, in any action for judicial review of an 


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1 agency action under such chapter, a reviewing 

2 court shall defer to a regulation, guidance, 

3 opinion, ruling, standard, order, adjudicative 

4 decision, or other interpretation issued by the 

5 agency that increases or otherwise strengthens 

6 a protection afforded to a service employee 

7 under this chapter unless such regulation, guid8 ance, opinion, ruling, standard, order, adjudica9 tive decision, or other interpretation is plainly 

10 erroneous or inconsistent with this chapter.’’. 

11 (h) WALSH-HEALEY PUBLIC CONTRACTS ACT.— 

12 (1) IN GENERAL.—Chapter 65 of title 41, 

13 United States Code, is amended by adding at the 

14 end the following: 

15 ‘‘SEC. 6512. GENERAL STANDARDS FOR APPLYING AND IN16 TERPRETING WORKERS’ RIGHTS. 

17 ‘‘(a) INTERPRETATION OF PROTECTIONS AND EX18 EMPTIONS.— 

19 ‘‘(1) PROTECTIONS.—All protections afforded 

20 under this chapter to individuals performing any 

21 labor, with respect to the manufacture or furnishing 

22 of materials, supplies, articles, or equipment under 

23 a contract to which this chapter applies, who is an 

24 employee of the contractor of such contract, shall be 

25 interpreted expansively in favor of such individual or 


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1 an individual claiming classification as such an indi2 vidual. 

3 ‘‘(2) EXEMPTIONS AND EXCLUSIONS.— 

4 ‘‘(A) IN GENERAL.—All exemptions and 

5 exclusions under this chapter shall be inter6 preted narrowly against the contractor of a con7 tract to which this chapter applies, or person 

8 alleged to be such a contractor, and limited in 

9 application to those persons or circumstances 

10 plainly and unmistakably within the language 

11 and spirit of the exemption or exclusion. 

12 ‘‘(B) CLEAR AND CONVINCING EVI13 DENCE.—Any person asserting the applicability 

14 of an exemption or exclusion under this chapter 

15 shall prove such applicability by clear and con16 vincing evidence. 

17 ‘‘(b) NO-LESS-PROTECTION RULE.— 

18 ‘‘(1) IN GENERAL.—The Secretary shall not 

19 take any action to reduce a protection afforded 

20 under this chapter to an individual performing any 

21 labor, with respect to the manufacture or furnishing 

22 of materials, supplies, articles, or equipment under 

23 a contract to which this chapter applies, who is an 

24 employee of the contractor of such contract, through 

25 any regulation, guidance, opinion, ruling, standard, 


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1 order, adjudicative decision, or other interpretation 

2 from the protection provided to such individual 

3 through a prior regulation, guidance, opinion, ruling, 

4 standard, order, adjudicative decision, or other inter5 pretation in effect on the day before the date of such 

6 action, unless such reduction is explicitly and specifi7 cally mandated by an Act of Congress. 

8 ‘‘(2) REQUEST FOR CONGRESSIONAL ACTION.— 

9 The Secretary may submit a proposal to Congress 

10 for a reduction described in paragraph (1), but shall 

11 not take any action described in such paragraph 

12 without an explicit and specific mandate by an Act 

13 of Congress. 

14 ‘‘(3) STANDARD OF DEFERENCE.—Notwith15 standing chapter 7 of title 5, United States Code, in 

16 any action for judicial review of an agency action 

17 under such chapter, a reviewing court shall defer to 

18 a regulation, guidance, opinion, ruling, standard, 

19 order, adjudicative decision, or other interpretation 

20 issued by the agency that increases or otherwise 

21 strengthens a protection afforded under this chapter 

22 to an individual performing any labor, with respect 

23 to the manufacture or furnishing of materials, sup24 plies, articles, or equipment under a contract to 

25 which this chapter applies, who is an employee of 


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1 the contractor of such contract, unless such regula2 tion, guidance, opinion, ruling, standard, order, ad3 judicative decision, or other interpretation is plainly 

4 erroneous or inconsistent with this chapter.’’. 

5 (2) TABLE OF SECTIONS.—The table of sections 

6 for chapter 65 of title 41, United States Code, is 

7 amended by adding at the end the following: 

Sec. 6512. General standards for applying and interpreting workers’ rights. 

8 (i) FAMILY AND MEDICAL LEAVE ACT OF 1993.— 

9 (1) IN GENERAL.—Title I of the Family and 

10 Medical Leave Act of 1993 (29 U.S.C. 2611 et seq.) 

11 is amended by adding at the end the following: 

12 ‘‘SEC. 110. GENERAL STANDARDS FOR APPLYING AND IN13 TERPRETING WORKERS’ RIGHTS. 

14 ‘‘(a) INTERPRETATION OF PROTECTIONS AND EX15 EMPTIONS.— 

16 ‘‘(1) PROTECTIONS.—All protections afforded 

17 eligible employees under this title, including as ap18 plied through the definitions under section 3, shall 

19 be interpreted expansively in favor of the eligible em20 ployee or individual claiming classification as an eli21 gible employee. 

22 ‘‘(2) EXEMPTIONS AND EXCLUSIONS.— 

23 ‘‘(A) IN GENERAL.—All exemptions and 

24 exclusions under this title, including as applied 

25 through the definitions under section 3, shall be 


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1 interpreted narrowly against the employer, or 

2 person alleged to be an employer, and limited in 

3 application to those persons or circumstances 

4 plainly and unmistakably within the language 

5 and spirit of the exemption or exclusion. 

6 ‘‘(B) CLEAR AND CONVINCING EVI7 DENCE.—Any person asserting the applicability 

8 of an exemption or exclusion under this title 

9 shall prove such applicability by clear and con10 vincing evidence. 

11 ‘‘(b) NO-LESS-PROTECTION RULE.— 

12 ‘‘(1) IN GENERAL.—The Secretary shall not 

13 take any action to reduce a protection afforded an 

14 eligible employee under this title through any regula15 tion, guidance, opinion, ruling, standard, order, ad16 judicative decision, or other interpretation from the 

17 protection provided to the eligible employee through 

18 a prior regulation, guidance, opinion, ruling, stand19 ard, order, adjudicative decision, or other interpreta20 tion in effect on the day before the date of such ac21 tion, unless such reduction is explicitly and specifi22 cally mandated by an Act of Congress. 

23 ‘‘(2) REQUEST FOR CONGRESSIONAL ACTION.— 

24 The Secretary may submit a proposal to Congress 

25 for a reduction described in paragraph (1), but shall 


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1 not take any action described in such paragraph 

2 without an explicit and specific mandate by an Act 

3 of Congress. 

4 ‘‘(3) STANDARD OF DEFERENCE.—Notwith5 standing chapter 7 of title 5, United States Code, in 

6 any action for judicial review of an agency action 

7 under such chapter, a reviewing court shall defer to 

8 a regulation, guidance, opinion, ruling, standard, 

9 order, adjudicative decision, or other interpretation 

10 issued by the agency that increases or otherwise 

11 strengthens a protection afforded to an eligible em12 ployee under this title unless such regulation, guid13 ance, opinion, ruling, standard, order, adjudicative 

14 decision, or other interpretation is plainly erroneous 

15 or inconsistent with this title.’’. 

16 (2) TABLE OF CONTENTS.—The table of con17 tents in section 1(b) of the Family and Medical 

18 Leave Act of 1993 is amended by inserting after the 

19 item relating to section 109 the following: 

‘‘Sec. 110. General standards for applying and interpreting workers’ rights.’’. 

20 (j) FEDERAL UNEMPLOYMENT TAX ACT (FUTA).— 

21 (1) IN GENERAL.—Section 3306(w) of the In22 ternal Revenue Code of 1986, as amended by section 

23 206(j), is amended by adding at the end the fol24 lowing new paragraph: 

25 ‘‘(8) Section 20 of such Act.’’. 


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1 (2) EFFECTIVE DATE.—The amendment made 

2 by paragraph (1) shall apply to services rendered on 

3 or after January 1, 2022. 

4 SEC. 402. STATUTES OF LIMITATION. 

5 (a) FLSA; WALSH-HEALEY PUBLIC CONTRACTS

6 ACT; DAVIS-BACON ACT.—Section 6 of the Portal-to-Por7 tal Act of 1947 (29 U.S.C. 255) is amended— 

8 (1) in the matter preceding subsection (a), by 

9 striking ‘‘for unpaid minimum wages, unpaid over10 time compensation, or liquidated damages,’’; and 

11 (2) in subsection (a)— 

12 (A) by striking ‘‘two years’’ each place it 

13 appears and inserting ‘‘4 years’’; 

14 (B) by inserting ‘‘or repeated’’ after ‘‘will15 ful’’; and 

16 (C) by striking ‘‘three years’’ and inserting 

17 ‘‘6 years’’. 

18 (b) NATIONAL LABOR RELATIONS ACT.—Section 

19 10(b) of the National Labor Relations Act (29 U.S.C. 

20 160(b)) is amended— 

21 (1) by striking ‘‘six months prior to the filing 

22 of the charge with the Board’’ and inserting ‘‘4 

23 years prior to the filing of the charge with the 

24 Board, or 6 years prior to such filing in the case of 


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1 an alleged willful or repeated unfair labor practice,’’; 

2 and 

3 (2) by striking ‘‘six-month period’’ and insert4 ing ‘‘4-year period, or 6-year period, as applicable,’’. 

5 (c) OCCUPATIONAL SAFETY AND HEALTH ACT OF

6 1970.—Section 9(c) of the Occupational Safety and 

7 Health Act of 1970 (29 U.S.C. 658(c)) is amended by 

8 striking ‘‘expiration of six months following the occurrence 

9 of any violation’’ and inserting ‘‘expiration of— 

10 ‘‘(1) except as provided in paragraph (2), 4 

11 years following the occurrence of any violation de12 scribed in subsection (a); or 

13 ‘‘(2) in the case of a violation described in sub14 section (a) that is willful or repeated, 6 years fol15 lowing the occurrence of the violation.’’. 

16 (d) FAMILY AND MEDICAL LEAVE ACT OF 1993.— 

17 Section 107(c) of the Family and Medical Leave Act of 

18 1993 (29 U.S.C. 2617(c)) is amended— 

19 (1) in paragraph (1), by striking ‘‘2 years’’ and 

20 inserting ‘‘4 years’’; and 

21 (2) in paragraph (2), by striking ‘‘3 years’’ and 

22 inserting ‘‘6 years’’. 


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1 TITLE V—GENERAL PROVISIONS 

2 SEC. 501. SEVERABILITY. 

3 If any provision of this Act or the application of such 

4 provision to any person, entity, government, or cir5 cumstance, is held to be unconstitutional, the remainder 

6 of this Act, or the application of such provision to all other 

7 persons, entities, governments, or circumstances, shall not 

8 be affected thereby. 

Æ 


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