I 

118TH CONGRESS 

1ST SESSION H. R. 5513 

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 HOUSE OF REPRESENTATIVES 

SEPTEMBER 14, 2023 

Ms. STEFANIK (for herself, Mr. KILEY, and Mrs. STEEL) introduced the following bill; which was referred to the Committee on Education and the 

Workforce 

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) 

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

8 203(e)) is amended— 


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

2 (4) as paragraphs (3), (4), and (5), respectively; 

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

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

5 (4), and (5)’’; and 

6 (3) by inserting after paragraph (1) the fol7 lowing: 

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

9 an independent contractor rather than an employee 

10 of another person if— 

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

12 significant control over the details of the way 

13 the work is performed by the individual, with14 out regard to any control the other person may 

15 exercise over the final result of the work per16 formed; and 

17 ‘‘(ii) while performing such work, the indi18 vidual has the opportunities and risks inherent 

19 with entrepreneurship, such as the discretion to 

20 exercise managerial skill, business acumen, or 

21 professional judgment. 

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

23 determining that an individual is an employee of an24 other person: 


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1 ‘‘(i) Whether such other person requires 

2 the individual to comply with legal, statutory, 

3 or regulatory requirements. 

4 ‘‘(ii) Whether such other person requires 

5 the individual to comply with health and safety 

6 standards that are more stringent than other7 wise applicable health and safety standards. 

8 ‘‘(iii) Whether such other person requires 

9 the individual to carry insurance of any kind. 

10 ‘‘(iv) Whether such other person requires 

11 the individual to meet contractually agreed12 upon performance standards, such as dead13 lines.’’. 

14 SEC. 2. EMPLOYEE CLASSIFICATION UNDER THE NATIONAL 

15 LABOR RELATIONS ACT. 

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

17 U.S.C. 152(3)) is amended— 

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

19 and inserting the following: 

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

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

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

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

24 shall be used in determining whether an indiVerDate Sep 11 2014 05:07 Sep 16, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H5513.IH H5513

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1 vidual is an independent contractor or an em2 ployee of another person.’’. 

Æ 


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