II 

118TH CONGRESS 

1ST SESSION S. 3018 

To amend the Fair Labor Standards Act of 1938 and the National Labor 

Relations Act to clarify the standard for determining whether an individual is an employee, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

OCTOBER 4, 2023 

Mr. THUNE (for Mr. SCOTT of South Carolina (for himself, Mrs. BLACKBURN, 

Mr. CRAMER, Mrs. HYDE-SMITH, Mr. BRAUN, Mr. WICKER, and Mr. 

THUNE)) introduced the following bill; which was read twice and referred 

to the Committee on Health, Education, Labor, and Pensions 

A BILL 

To amend the Fair Labor Standards Act of 1938 and the 

National Labor Relations Act to clarify the standard 

for determining whether an individual is an employee, 

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. CRITERIA FOR DETERMINING EMPLOYEE STA4 TUS. 

5 (a) CRITERIA FOR DETERMINING EMPLOYEE STATUS

6 UNDER THE FAIR LABOR STANDARDS ACT.—Section 3(e) 


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•S 3018 IS

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

2 203(e)) is amended— 

3 (1) by redesignating paragraphs (2), (3), (4), 

4 and (5) as paragraphs (3), (4), (5), and (6), respec5 tively; 

6 (2) in paragraph (1), by striking ‘‘paragraphs 

7 (2), (3), and (4)’’ and inserting ‘‘paragraphs (3), 

8 (4), (5), and (6)’’; and 

9 (3) by inserting after paragraph (1) the fol10 lowing: 

11 ‘‘(2)(A) An individual shall be determined to be 

12 an independent contractor rather than an employee 

13 of another person if— 

14 ‘‘(i) such other person does not exercise 

15 significant control over the details of the way 

16 the work is performed by the individual, with17 out regard to any control the other person may 

18 exercise over the final result of the work per19 formed; and 

20 ‘‘(ii) while performing such work, the indi21 vidual has the opportunities and risks inherent 

22 with entrepreneurship, such as the discretion to 

23 exercise managerial skill, business acumen, or 

24 professional judgment. 


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•S 3018 IS

1 ‘‘(B) The following factors may not be used in 

2 determining that an individual is an employee of an3 other person: 

4 ‘‘(i) Whether such other person requires 

5 the individual to comply with legal, statutory, 

6 or regulatory requirements. 

7 ‘‘(ii) Whether such other person requires 

8 the individual to comply with health and safety 

9 standards that are more stringent than other10 wise applicable health and safety standards. 

11 ‘‘(iii) Whether such other person requires 

12 the individual to carry insurance of any kind. 

13 ‘‘(iv) Whether such other person requires 

14 the individual to meet contractually agreed15 upon performance standards, such as dead16 lines.’’. 

17 SEC. 2. EMPLOYEE CLASSIFICATION UNDER THE NATIONAL 

18 LABOR RELATIONS ACT. 

19 Section 2(3) of the National Labor Relations Act (29 

20 U.S.C. 152(3)) is amended— 

21 (1) by striking ‘‘(3) The term ‘employee’ shall’’ 

22 and inserting the following: 

23 ‘‘(3)(A) The term ‘employee’ shall’’; and 

24 (2) by adding at the end the following: 


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•S 3018 IS

1 ‘‘(B) Section 3(e)(2) of the Fair Labor 

2 Standards Act of 1938 (29 U.S.C. 203(e)(2)) 

3 shall be used in determining under this Act 

4 whether an individual is an independent con5 tractor or an employee of another person, ex6 cept that for purposes of this Act a reference 

7 in such section to the term ‘employee’ or ‘per8 son’ shall be deemed a reference to such term 

9 as defined in this section.’’. 

Æ 


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