I 
116TH CONGRESS 
2D SESSION 
H. R. 8375 
To provide a right to flexibility and to broaden and increase employee protec-
tions at work, to protect small businesses through shared responsibility 
for workers’ rights, to provide public transparency on workers’ rights 
violations, and for other purposes. 
IN THE HOUSE OF REPRESENTATIVES 
SEPTEMBER 24, 2020 
Ms. DELAURO introduced the following bill; which was referred to the Com-
mittee on Education and Labor, and in addition to the Committees on 
Oversight and Reform, House Administration, and Ways and Means, for 
a period to be subsequently determined by the Speaker, in each case for 
consideration of such provisions as fall within the jurisdiction of the com-
mittee concerned 
A BILL 
To provide a right to flexibility and to broaden and increase 
employee protections at work, to protect small businesses 
through shared responsibility for workers’ rights, to pro-
vide public transparency on workers’ rights violations, 
and for other purposes. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘Worker Flexibility and 
Small Business Protection Act of 2020’’. 
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SEC. 2. TABLE OF CONTENTS. 
The table of contents for this Act is as follows: 
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. 
TITLE I—RIGHT TO FLEXIBILITY 
AND 
EMPLOYEE 
PROTEC-
TIONS AT WORK 
SEC. 101. RIGHT TO FLEXIBILITY. 
(a) IN GENERAL.—The Fair Labor Standards Act of 
1938 (29 U.S.C. 201 et seq.) is amended— 
(1) by inserting after section 7 (29 U.S.C. 207) 
the following: 
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‘‘SEC. 8. RIGHT TO FLEXIBILITY. 
‘‘(a) DEFINITIONS.—In this section: 
‘‘(1) COVERED EMPLOYEE.—The term ‘covered 
employee’ means, with respect to an employer, an 
employee who— 
‘‘(A) prior to the date of enactment of the 
Worker Flexibility and Small Business Protec-
tion Act of 2020, was classified by the employer 
as an independent contractor; and 
‘‘(B) in any workweek is engaged in com-
merce or in the production of goods for com-
merce, or is employed by an enterprise engaged 
in commerce or in the production of goods for 
commerce. 
‘‘(2) SCHEDULE
AND
SCHEDULING
FLEXI-
BILITY.—The term ‘schedule and scheduling flexi-
bility’, with respect to the work of a covered em-
ployee under subsection (b), includes— 
‘‘(A) the timing of the work throughout an 
hour, day, week, month, or year; 
‘‘(B) the total duration of the work in any 
given period; 
‘‘(C) the location where the work is per-
formed; and 
‘‘(D) the ability to perform work for any 
entity other than the employer of the covered 
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employee, including any direct competitor of the 
employer. 
‘‘(b) RIGHT TO KEEP FLEXIBILITY.— 
‘‘(1) IN GENERAL.—Any covered employee of 
an employer has the right to maintain the same 
schedule and scheduling flexibility that the covered 
employee possessed at any time while performing 
labor for such employer as an independent con-
tractor in the 12-month period prior to the date of 
enactment of the Worker Flexibility and Small Busi-
ness Protection Act of 2020. 
‘‘(2) DURATION
OF
RIGHT.—A covered em-
ployee shall continue to possess the right to main-
tain the same schedule and scheduling flexibility de-
scribed in paragraph (1) for the duration of the em-
ployment of the covered employee with the employer. 
‘‘(3) NONRETALIATION.— 
‘‘(A) IN GENERAL.—An employer of a cov-
ered employee— 
‘‘(i) may not discharge the covered 
employee for any reason except upon a 
showing of just cause; and 
‘‘(ii) may not otherwise discriminate 
against the covered employee because of or 
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with relation to the schedule or scheduling 
flexibility of the employee. 
‘‘(B) DISCRIMINATION.—For the purposes 
of subparagraph (A)(ii), the term ‘discriminate’, 
with respect to a covered employee, shall in-
clude— 
‘‘(i) reducing the amount or number 
of hours of work of the covered employee; 
‘‘(ii) restricting or limiting the work 
of the covered employee for the employer; 
or 
‘‘(iii) removing the covered employee 
from the workplace, including by sus-
pending or deactivating an account the 
covered employee uses to perform work for 
the employer. 
‘‘(C) MOTIVATING FACTOR.—For the pur-
poses of subparagraph (A)(ii), unlawful dis-
crimination is established when a covered em-
ployee demonstrates that the schedule or sched-
uling flexibility of the covered employee was a 
motivating factor for any adverse employment 
action taken by an employer, even if such action 
was also motivated by other factors. 
‘‘(c) RIGHT TO REQUEST FUTURE FLEXIBILITY.— 
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‘‘(1) RIGHT TO REQUEST.—An employee shall 
have the right to request to have the schedule that 
the employee desires, including— 
‘‘(A) the number of shifts or other units of 
work per day or week; 
‘‘(B) the number of hours of work per day; 
‘‘(C) the number of days of work per week; 
‘‘(D) the location where the employee per-
forms the work; and 
‘‘(E) any unpaid time off the employee de-
sires to take. 
‘‘(2) NONRETALIATION.— 
‘‘(A) IN GENERAL.—An employer shall not 
discharge or in any other manner discriminate 
against an employee for making a request de-
scribed in paragraph (1). 
‘‘(B) MOTIVATING FACTOR.—Unlawful dis-
charge or discrimination against an employee is 
established under subparagraph (A) when the 
complaining party demonstrates that the re-
quest described in paragraph (1) was a moti-
vating factor for such discharge or discrimina-
tion, even if such discharge or discrimination 
was also motivated by other factors. 
‘‘(3) RESPONSE.— 
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‘‘(A) IN GENERAL.—An employer shall re-
spond to a request described in paragraph (1) 
by either granting the request in full or pro-
viding the employee with a written justification 
for any portion of the request that the employer 
denies based on a compelling business necessity. 
‘‘(B) REVIEW BY SECRETARY.—If the em-
ployer does not grant a request described in 
paragraph (1) in full, the employee may request 
review by the Secretary. The Secretary may— 
‘‘(i) issue an order to overrule the em-
ployer’s denial of the employee’s request, 
or any portion of the employee’s request, if 
the Secretary finds that the employer does 
not have a compelling business necessity 
for the denial; or 
‘‘(ii) issue an order to confirm the em-
ployer’s denial of the employee’s request, 
or any portion of the employee’s request, if 
the Secretary finds that the employer has 
a compelling business necessity for the de-
nial. 
‘‘(C) APPEALS.— 
‘‘(i) IN GENERAL.—An aggrieved em-
ployer or employee may— 
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‘‘(I) appeal an order of the Sec-
retary under subparagraph (B) to an 
administrative law judge; and 
‘‘(II) appeal an order of an ad-
ministrative law judge under sub-
clause (I) to a Federal or State court 
of competent jurisdiction. 
‘‘(ii) COMPLIANCE WITH ORDER DUR-
ING APPEAL.—For the duration of an ap-
peal described in clause (i)(I), the em-
ployer and employee shall comply with the 
order of the Secretary until and unless the 
order is overturned by an administrative 
law judge. For the duration of an appeal 
described in clause (i)(II), the employer 
and employee shall comply with the order 
of the administrative law judge until and 
unless the order is overturned by a Federal 
or State court of competent jurisdiction. 
‘‘(D) 
COMPELLING
BUSINESS
NECES-
SITY.—For purposes of this paragraph, the 
term ‘compelling business necessity’ means only 
any of the following: 
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‘‘(i) A significant burden of additional 
costs to the employer that would be prohib-
itive of continuing to conduct business. 
‘‘(ii) A complete inability of the em-
ployer to reorganize work amongst existing 
employees. 
‘‘(iii) A complete inability of the em-
ployer to recruit additional employees. 
‘‘(iv) A significant detrimental effect 
on the ability of the employer to meet cus-
tomer demand. 
‘‘(v) A lack of work during the period 
the employee proposes to work. 
‘‘(vi) A planned structural change to 
the 
employer’s 
business, 
which 
was 
planned before the request was made. 
‘‘(vii) Any other grounds as deter-
mined by the Secretary through regulation 
that the Secretary demonstrates satisfy the 
high bar of being compellingly necessary 
for an employer to continue conducting 
business and being more than merely a le-
gitimate business reason.’’; 
(2) by striking section 10 (29 U.S.C. 210); and 
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(3) by redesignating section 9 (29 U.S.C. 209) 
as section 10. 
(b) ENFORCEMENT.— 
(1) PROHIBITED ACTS.—Section 15(a)(2) of the 
Fair Labor Standards Act of 1938 (29 U.S.C. 
215(a)(2)) is amended by striking ‘‘section 6 or 7’’ 
and inserting ‘‘section 6, 7, or 8’’. 
(2) PENALTIES.—Section 16(e) of the Fair 
Labor Standards Act of 1938 (29 U.S.C. 216(e)) is 
amended by adding at the end the following: 
‘‘(6) PENALTIES FOR VIOLATING RIGHT TO FLEXI-
BILITY.—Any person who violates section 8 shall be sub-
ject to a civil penalty, for each employee aggrieved by the 
violation and for each day in which the employer is in such 
violation, of— 
‘‘(A) $1,000; or 
‘‘(B) if the violation is repeated or willful, 
$5,000.’’. 
(c) CONFORMING AMENDMENTS TO OTHER LAWS.— 
(1) AGE DISCRIMINATION IN EMPLOYMENT ACT 
OF 1967.—Section 7(a) of the Age Discrimination in 
Employment Act of 1967 (29 U.S.C. 626(a)) is 
amended by striking ‘‘sections 9 and 11 of the Fair 
Labor Standards Act of 1938, as amended (29 
U.S.C. 209 and 211)’’ and inserting ‘‘sections 10 
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and 11 of the Fair Labor Standards Act of 1938, 
as amended (29 U.S.C. 210 and 211)’’. 
(2) FAMILY
AND
MEDICAL
LEAVE
ACT
OF 
1993.—Section 106(d) of the Family and Medical 
Leave Act of 1993 (29 U.S.C. 2616(d)) is amended 
by striking ‘‘section 9 of the Fair Labor Standards 
Act of 1938 (29 U.S.C. 209)’’ and inserting ‘‘section 
10 of the Fair Labor Standards Act of 1938 (29 
U.S.C. 210)’’. 
SEC. 102. RIGHT TO EMPLOYEE PROTECTIONS AT WORK. 
(a) FAIR LABOR STANDARDS ACT OF 1938.— 
(1) STRENGTHENING
EMPLOYEE
TEST.—Sec-
tion 3(e) of the Fair Labor Standards Act of 1938 
(29 U.S.C. 203(e)) is amended by adding at the end 
the following: 
‘‘(6)(A) For purposes of this Act, and except as pro-
vided in paragraphs (2), (3), (4), (5), (7), and (9), an indi-
vidual performing any labor for remuneration for a person 
shall be an employee employed by the person and not an 
independent contractor of the person, unless— 
‘‘(i) the individual is free from control and di-
rection in connection with the performance of the 
labor, both under the contract for the performance 
of the labor and in fact; 
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‘‘(ii) the labor is performed outside the usual 
course of the business of the person; and 
‘‘(iii) the individual is customarily engaged in 
an independently established trade, occupation, pro-
fession, or business of the same nature as that in-
volved in the labor performed. 
‘‘(B)(i) Subparagraph (A) is not a codification of the 
common law and shall not be interpreted to reflect, or to 
be limited or restricted by, common law interpretations re-
garding when an individual is an employee of another per-
son. Subparagraph (A) shall be considered complete as 
written, and any judicial or agency interpretation of such 
subparagraph shall be limited to the explicit requirements 
of such subparagraph. 
‘‘(ii) The requirements of subparagraph (A) shall not 
be in any way affected by any agreement, written or other-
wise, that purports to demonstrate an individual’s ac-
knowledgment of or acquiescence to the absence of an em-
ployer-employee relationship with a particular employer. 
‘‘(7)(A) Notwithstanding any contrary provisions in 
this subsection or subsection (d) or (g), in any instance 
in which there is a non-compete agreement between a per-
son and an individual who performs labor for such person, 
the presence of the non-compete agreement, without re-
gard to the legality or enforceability of the non-compete 
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agreement, shall be evidence of control for purposes of 
paragraph (6)(A)(i), but shall not by itself establish an 
employment relationship between such person and the in-
dividual. 
‘‘(B) In this paragraph, the term ‘non-compete agree-
ment’ means an agreement between a person and an indi-
vidual who performs labor for such person that restricts 
the individual from performing, either during or after the 
individual performs labor for such person— 
‘‘(i) any labor for another person; 
‘‘(ii) any labor for a specified period of time; 
‘‘(iii) any labor in a specified geographical area; 
or 
‘‘(iv) any labor for another person that is simi-
lar to the labor such individual performed for the 
person that is a party to such agreement.’’. 
(2) PRESUMPTION
OF
EMPLOYEE
STATUS.— 
Section 3(e) of the Fair Labor Standards Act of 
1938 (29 U.S.C. 203(e)), as amended by paragraph 
(1), is further amended by adding at the end the fol-
lowing: 
‘‘(8) For purposes of this Act, an individual per-
forming any labor for remuneration for a person shall be 
presumed to be an employee of the person, unless the 
party seeking to assert otherwise establishes by clear and 
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convincing evidence that the individual is not an employee 
in accordance with paragraphs (1) through (7) and para-
graph (9).’’. 
(3) MISCLASSIFICATION AS A STANDALONE VIO-
LATION.— 
(A) IN GENERAL.—The Fair Labor Stand-
ards Act of 1938 (29 U.S.C. 201 et seq.) is 
amended— 
(i) by inserting after section 4 (29 
U.S.C. 204) the following: 
‘‘SEC. 5. MISCLASSIFICATION. 
‘‘No employer shall misclassify any employee, who in 
any workweek is engaged in commerce or in the produc-
tion of goods for commerce, or is employed in an enter-
prise engaged in commerce or in the production of goods 
for commerce, of the employer as not an employee of the 
employer for purposes of this Act.’’; and 
(ii) in section 15(a) (29 U.S.C. 
215(a))— 
(I) in paragraph (5), by striking 
the period at the end and inserting a 
semicolon; and 
(II) by adding at the end the fol-
lowing: 
‘‘(6) to violate section 5;’’. 
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(B) INCORPORATION TO FURTHER VIOLA-
TIONS.—Section 15(a) of the Fair Labor 
Standards Act of 1938 (29 U.S.C. 215(a)), as 
amended by subparagraph (A)(ii), is further 
amended by adding at the end the following: 
‘‘(7) for the purpose, in whole or in part, of fa-
cilitating, or evading detection of, a violation of this 
Act, including a violation of paragraph (6)— 
‘‘(A) to incorporate or form, or assist in 
the incorporation or formation of, a corpora-
tion, partnership, limited liability corporation, 
or other entity; or 
‘‘(B) to pay or collect a fee for use of a 
foreign or domestic corporation, partnership, 
limited liability corporation, or other entity; 
or’’. 
(C) PENALTIES.—Section 16(e) of the 
Fair Labor Standards Act of 1938 (29 U.S.C. 
216(e)), as amended by section 101(b)(2), is 
further amended by adding at the end the fol-
lowing: 
‘‘(7) PENALTIES FOR MISCLASSIFICATION AND IN-
CORPORATION TO FURTHER VIOLATIONS.— 
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‘‘(A) IN GENERAL.—Any person who violates 
paragraph (6) or (7) of section 15(a) shall be sub-
ject to a civil penalty of— 
‘‘(i) subject to clauses (ii) and (iii), 
$10,000; 
‘‘(ii) if the violation is repeated or willful, 
$30,000; or 
‘‘(iii) if the violation is widespread, 1 per-
cent of the net profits of the person for the year 
in which the person had the highest net profits 
out of all years in which the person was in such 
violation. 
‘‘(B) REPEATED, OR
WILLFUL, AND
WIDE-
SPREAD VIOLATIONS.—If a violation of paragraph 
(6) or (7) of section 15(a) is repeated or willful, as 
described in subparagraph (A)(ii), and is wide-
spread, as described in subparagraph (A)(iii), the 
higher penalty of the penalties described in such 
subparagraphs shall apply. 
‘‘(C) PAYMENT
OF
PENALTIES.—Any penalty 
assessed under subparagraph (A) for a violation of 
paragraph (6) or (7) of section 15(a) shall be paid 
from an account of the person in such violation and 
not paid, or reimbursed, by any insurance plan that 
would indemnify the person from violations of such 
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paragraph (6) or (7), respectively. If a person re-
ceives a payment from an insurance plan to indem-
nify the person from a violation of such paragraph, 
the person shall transfer the payment to the Sec-
retary, in addition to the amount to be paid from 
the account of the person for the penalty. The 
amount of a payment transferred to the Secretary 
under this subparagraph shall be treated as a civil 
penalty under this section for a violation of section 
15 for purposes of paragraph (5) of this subsection 
and subsection (f).’’. 
(4) PROTECTION
FROM
RETALIATION
FOR 
BEING AN EMPLOYEE.—Section 15(a)(3) of the Fair 
Labor Standards Act of 1938 (29 U.S.C. 215(a)(3)) 
is amended— 
(A) by striking ‘‘employee because such 
employee has filed’’ and inserting ‘‘employee be-
cause— 
‘‘(A) such employee has filed;’’; 
(B) by striking ‘‘committee;’’ and inserting 
‘‘committee; or’’; and 
(C) by adding at the end the following: 
‘‘(B) such employee— 
‘‘(i) is required, pursuant to the enactment 
of the Worker Flexibility and Small Business 
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Protection Act of 2020, to be classified as an 
employee of the person for purposes of this Act 
and not an independent contractor; and 
‘‘(ii) was classified by the person as an 
independent contractor prior to the date of en-
actment of the Worker Flexibility and Small 
Business Protection Act of 2020;’’. 
(5) RULES REGARDING UNLAWFUL DISCHARGE 
OR DISCRIMINATION.—Section 15 of the Fair Labor 
Standards Act of 1938 (29 U.S.C. 215) is amended 
by adding at the end the following: 
‘‘(c) RULES REGARDING UNLAWFUL DISCHARGE OR 
DISCRIMINATION.— 
‘‘(1) PRESUMPTION OF RETALIATION.—Any ac-
tion taken against an employee within 90 days of 
the employee taking any action described in sub-
section (a)(3)(A), including taking any such action 
with respect to exercising the right of the employee 
pursuant to section 5 to not be misclassified, shall 
establish a rebuttable presumption that the action is 
discrimination against the employee in violation of 
subsection (a)(3). 
‘‘(2) 
MOTIVATING
FACTOR.—Unlawful 
dis-
charge or other discrimination against an employee 
under subsection (a)(3) is established when the com-
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plaining party demonstrates that one of the actions 
or the classification described in such subsection was 
a motivating factor for such discharge or other dis-
crimination, even if such discharge or other discrimi-
nation was also motivated by other factors.’’. 
(6) 
STATUTORY
EMPLOYERS
IN
HEAVILY 
MISCLASSIFIED INDUSTRIES.— 
(A) DEFINITION OF EMPLOYER.—Section 
3(d) of the Fair Labor Standards Act of 1938 
(29 U.S.C. 203(d)) is amended to read as fol-
lows: 
‘‘(d) EMPLOYER.— 
‘‘(1) IN
GENERAL.—The term ‘employer’ in-
cludes any person acting directly or indirectly in the 
interest of an employer in relation to an employee. 
‘‘(2) INCLUSIONS AND EXCLUSIONS.—The term 
‘employer’ includes a public agency but does not in-
clude any labor organization (other than when acting 
as an employer) or anyone acting in the capacity of 
officer or agent of such labor organization. 
‘‘(3) 
APPLICATION
WITH
REFERENCE
TO 
OTHER DEFINITIONS.—The term ‘employer’ shall be 
interpreted and applied in a manner that is con-
sistent with the other definitions in this section and 
that incorporates the term ‘employee’, as defined in 
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subsection (e), and the term ‘employ’, as defined in 
subsection (g). 
‘‘(4) STATUTORY EMPLOYERS IN CERTAIN IN-
DUSTRIES.—The term ‘employer’ shall include any 
person, except a person excluded under paragraph 
(2), with respect to an individual described in sub-
section (e)(9) performing labor that is beneficial to 
the person, that is engaged in any of the following 
work: 
‘‘(A) Transportation, including any person 
that benefits from labor performed by individ-
uals in the form of transportation in a motor-
ized or unmotorized vehicle, by foot, or by any 
other means, including transportation network 
companies, technology platform companies, pas-
senger transportation or food transportation 
companies, and cargo transportation companies. 
‘‘(B) Network dispatching, including any 
person that uses a digital network to connect 
individuals or entities seeking services or labor 
with individuals or entities seeking to provide 
services or labor, but not including any person 
who owns, controls, or manages— 
‘‘(i) a completely neutral physical or 
internet marketplace where the procure-
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ment of goods or services takes place be-
tween individuals who are completely inde-
pendent from and free from any and all di-
rection or control by the person owning, 
controlling, or managing the neutral mar-
ketplace, including such person having ab-
solutely no role in the setting of prices or 
rates, in the assignment or referral of re-
quests for goods or services to individuals 
who could potentially provide such goods 
or services, and in the acceptance or rejec-
tion of any requests for goods or services; 
and 
‘‘(ii) a labor organization hiring 
hall.’’. 
(B) DEFINITION OF EMPLOYEE.—Section 
3(e) of the Fair Labor Standards Act of 1938 
(29 U.S.C. 203(e)), as amended by paragraph 
(2), is further amended by adding at the end 
the following: 
‘‘(9) Notwithstanding paragraph (1) or (6) of this 
subsection, subsection (d) (other than paragraph (4) of 
such subsection), or subsection (g), and except as provided 
in paragraphs (2), (3), (4), and (5), the term ‘employee’, 
with respect to an employer described in subsection (d)(4), 
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‘‘SEC. 9. SPECIAL REQUIREMENTS FOR CERTAIN WORKERS. 
‘‘(a) DETERMINING COMPENSABLE HOURS WORKED 
FOR
TRANSPORTATION
AND
NETWORK
DISPATCHING 
WORKERS.— 
‘‘(1) DETERMINING HOURS WORKED.— 
‘‘(A) IN GENERAL.—For the purposes of 
sections 6 and 7, in determining the hours for 
which an employee described in section 3(e)(9) 
is employed, there shall be included any reason-
able amount of time, as determined by the Sec-
retary in accordance with subparagraph (C), 
spent on waiting for, receiving, reviewing, con-
sidering, accepting, and transporting oneself to 
fulfill an assignment or request to perform any 
portion of labor immediately before performing 
such portion of labor, including through a 
smartphone application, technology platform, 
dispatch network, or any other mechanism that 
is used to connect individuals or entities seeking 
services or labor with employees seeking to pro-
vide services or labor. 
‘‘(B) RATE
OF
COMPENSATION.—Com-
pensation paid for any reasonable amount of 
time described in subparagraph (A) shall be 
paid at a rate no less than the employee’s reg-
ular rate of pay. 
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‘‘(C) DETERMINATION
OF
AMOUNT
OF 
TIME.—The Secretary shall have discretion to 
determine a reasonable amount of time for pur-
poses of subparagraph (A) given the specific 
circumstances involved, except that in all 
cases— 
‘‘(i) the minimum amount of the rea-
sonable amount of time for the activities 
described in subparagraph (A) before ac-
cepting and performing a portion of labor 
shall be 3 minutes; and 
‘‘(ii) the maximum amount of such 
reasonable amount of time shall be 30 
minutes. 
‘‘(D) COLLECTIVE BARGAINING.—Notwith-
standing subparagraph (A), no employer shall 
be determined to have violated section 6 or 7 by 
employing any employee described in section 
3(e)(9) without providing such employee com-
pensation for the reasonable amount of time 
under subparagraph (A) if such employee is so 
employed in pursuance of an agreement, made 
as a result of collective bargaining by a bona 
fide representative of employees for purposes of 
section 8(f) or (9)(a) of the National Labor Re-
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lations Act (29 U.S.C. 158(f), 159(a)), that al-
ters or waives the compensation requirements of 
this paragraph. 
‘‘(2) INFORMATION.—The Secretary shall have 
the authority to request, inspect, and pursue sub-
poenas for any information or data held by an em-
ployer that the Secretary determines to be rel-
evant— 
‘‘(A) in determining the reasonable amount 
of time under paragraph (1)(A) for which an 
employee described in section 3(e)(9) should be 
compensated; 
‘‘(B) in determining an employee’s regular 
rate of pay for purposes of paragraph (1)(B); 
or 
‘‘(C) for any other purpose related to this 
subsection.’’. 
(ii) PENALTIES.—Section 15(a)(2) is 
amended by inserting ‘‘including violations 
due to failure to comply with section 9(a),’’ 
after ‘‘section 7,’’. 
(7) 
MISCLASSIFICATION
ENFORCEMENT 
THROUGH
RECLASSIFICATION
ORDERS
AND
STOP 
WORK ORDERS.— 
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(A) IN GENERAL.—Section 17 of the Fair 
Labor Standards Act of 1938 (29 U.S.C. 217) 
is amended— 
(i) by striking ‘‘The district courts’’ 
and inserting ‘‘(a) The district courts’’; 
(ii) by inserting ‘‘orders issued under 
subsection (b)(1) or (c)(1) or violations of’’ 
before ‘‘section 15,’’; and 
(iii) by adding at the end the fol-
lowing: 
‘‘(b) MISCLASSIFICATION ENFORCEMENT THROUGH 
RECLASSIFICATION ORDERS.— 
‘‘(1) IN
GENERAL.—If the Secretary deter-
mines, after an investigation under section 11, that 
an employer has misclassified 1 or more individuals 
who are employees of the employer as not employees 
in violation of section 15(a)(6)— 
‘‘(A) the Secretary shall issue, not later 
than 24 hours after making such determination, 
an order against the employer requiring the em-
ployer to immediately classify the 1 or more in-
dividuals as employees of the employer; and 
‘‘(B) the employer shall immediately com-
ply with the order issued under subparagraph 
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(A) or shall otherwise be in violation of section 
15(a)(6). 
‘‘(2) ORDERS.—An order issued under para-
graph (1) shall— 
‘‘(A) be effective at the time at which the 
order is served upon the employer, which may 
be accomplished by the posting of a copy of the 
order in a conspicuous location at the place of 
business of the employer; and 
‘‘(B) remain in effect during any review 
conducted under paragraph (3) with respect to 
such order and during any hearing and appeal 
of such order under paragraph (4). 
‘‘(3) REVIEW FOR RECONSIDERATION.— 
‘‘(A) IN GENERAL.—An employer against 
whom an order is issued under paragraph (1) 
may request a review by the Secretary to con-
test the order. 
‘‘(B) REQUESTS.—A request under sub-
paragraph (A) shall be made in writing to the 
Secretary not more than 5 days after the 
issuance of the order. 
‘‘(C) REQUIREMENTS FOR REVIEW.— 
‘‘(i) IN
GENERAL.—A review under 
this paragraph shall— 
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‘‘(I) commence not later than 24 
hours after a request is made under 
subparagraph (B); and 
‘‘(II) conclude not later than 24 
hours after such commencement. 
‘‘(ii) 
DETERMINATION.—Not 
later 
than 72 hours after a review concludes 
under clause (i)(II), the Secretary shall de-
termine whether to affirm, modify, or re-
voke the contested order. 
‘‘(4) HEARINGS AND APPEALS.—Any person ag-
grieved by a determination of the Secretary under 
paragraph (3)(C)(ii) may— 
‘‘(A) request a hearing to appeal such de-
termination to an administrative law judge; and 
‘‘(B) appeal an order of an administrative 
law judge under subparagraph (A) to a Federal 
or State court of competent jurisdiction. 
‘‘(5) INJUNCTION
PROCEEDINGS.—The Sec-
retary may seek an injunction proceeding under sub-
section (a) against any employer that violates an 
order issued under paragraph (1). A court shall 
issue such injunction if the Secretary has dem-
onstrated it is just and proper. 
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‘‘(6) SUCCESSFULLY DISPROVING OCCURRENCE 
OF MISCLASSIFICATION.— 
‘‘(A) IN GENERAL.—If an employer with 
respect to whom an order was issued under 
paragraph (1) successfully proves through a re-
view under paragraph (3), or a hearing or ap-
peal under paragraph (4), that the 1 or more 
individuals who were the subject of the order 
were not misclassified in violation of section 
15(a)(6)— 
‘‘(i) the order issued under paragraph 
(1) shall cease to be in effect; 
‘‘(ii) the employer shall not be liable 
for any applicable unpaid minimum wages, 
unpaid overtime compensation, other dam-
ages, or civil penalties owed by the em-
ployer under section 16 with respect to the 
misclassification of such 1 or more individ-
uals; and 
‘‘(iii) the Secretary of Labor, adminis-
trative law judge, or the court shall award 
(and the Secretary of the Treasury shall, 
in accordance with subparagraph (B), pay) 
to the employer reasonable fees and ex-
penses of attorneys in the same manner as 
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such fees and expenses could be awarded 
under section 2412 of title 28, United 
States Code, if the employer was a pre-
vailing party and the review, hearing, or 
appeals proceeding was a civil action 
brought by or against the United States. 
‘‘(B) SOURCE OF FUNDS.—The Secretary 
of the Treasury shall, upon notification by the 
Secretary of Labor, administrative law judge, or 
court, as applicable, pay any fees or expenses 
awarded under subparagraph (A)(iii) from 
amounts in the general fund of the Treasury. 
‘‘(c) MISCLASSIFICATION ENFORCEMENT THROUGH 
STOP WORK ORDERS.— 
‘‘(1) IN GENERAL.—In any case where an em-
ployer does not comply with a reclassification order 
issued by the Secretary under subsection (b)(1), 
with respect to 2 or more individuals who are 
misclassified in violation of section 15(a)(6), within 
30 days of being served with the order, the Sec-
retary shall issue— 
‘‘(A) subject to subparagraph (B), an 
order against the employer requiring the ces-
sation of all business operations of such em-
ployer at the location of the violation; or 
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‘‘(B) if an order described in subparagraph 
(A) has been previously issued against the em-
ployer by any Federal, State, or local agency 
for misclassifying an employee as not an em-
ployee in violation of section 15(a)(6), or an 
equivalent State or local law as determined by 
the Secretary, an order against the employer re-
quiring the cessation of all business operations 
of such employer at all business locations of the 
employer, including locations other than the lo-
cation where the misclassification occurred. 
‘‘(2) ORDERS.— 
‘‘(A) APPLICABILITY.—An order issued 
under paragraph (1) shall— 
‘‘(i) be effective at the time at which 
the order is served upon the employer, 
which may be accomplished by the posting 
of a copy of the order in a conspicuous lo-
cation at the place of business of the em-
ployer; and 
‘‘(ii) remain in effect— 
‘‘(I) during any review conducted 
under paragraph (3) with respect to 
such order and during any hearing 
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and appeal of such order under para-
graph (4); and 
‘‘(II) until the Secretary issues a 
release order under subparagraph (B). 
‘‘(B) RELEASE ORDERS.— 
‘‘(i) IN
GENERAL.—An order issued 
under paragraph (1) (that is not revoked 
by the Secretary or held unlawful or set 
aside by an administrative law judge or a 
court) shall remain in effect until the Sec-
retary issues another order releasing the 
order issued under such paragraph upon a 
finding by the Secretary that the em-
ployer— 
‘‘(I) has corrected the violation of 
section 15(a)(6) with respect to the 2 
or 
more 
individuals 
who 
were 
misclassified resulting in the order; 
and 
‘‘(II) has agreed to a payment 
schedule for all applicable unpaid min-
imum wages, unpaid overtime com-
pensation, other damages, and civil 
penalties owed by the employer under 
section 16. 
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‘‘(ii) REINSTATEMENT.—If, at any 
time after the Secretary issues a release 
order under clause (i), the employer fails 
to comply with the terms of the payment 
schedule described in clause (i)(II), the 
Secretary shall reinstate the order issued 
under paragraph (1) until the employer is 
in compliance with such terms. 
‘‘(3) REVIEW FOR RECONSIDERATION.— 
‘‘(A) IN GENERAL.—An employer against 
whom an order is issued under paragraph (1) 
may request a review by the Secretary to con-
test the order. 
‘‘(B) REQUESTS.—A request under sub-
paragraph (A) shall be made in writing to the 
Secretary not more than 5 days after the 
issuance of the order. 
‘‘(C) REQUIREMENTS FOR REVIEW.— 
‘‘(i) IN
GENERAL.—A review under 
this paragraph shall— 
‘‘(I) commence not later than 24 
hours after a request is made under 
subparagraph (B); and 
‘‘(II) conclude not later than 24 
hours after such commencement. 
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‘‘(ii) 
DETERMINATION.—Not 
later 
than 72 hours after a review concludes 
under clause (i)(II), the Secretary shall de-
termine whether to affirm, modify, or re-
voke the contested order. 
‘‘(4) HEARINGS AND APPEALS.—Any person ag-
grieved by a determination of the Secretary under 
paragraph (3)(C)(ii) may— 
‘‘(A) request a hearing to appeal such de-
termination to an administrative law judge; and 
‘‘(B) appeal an order of an administrative 
law judge under subparagraph (A) to a Federal 
or State court of competent jurisdiction. 
‘‘(5) INJUNCTION
PROCEEDINGS.—The Sec-
retary may seek an injunction proceeding under sub-
section (a) against any employer that violates an 
order issued under paragraph (1). A court shall 
issue such injunction if the Secretary has dem-
onstrated it is just and proper. 
‘‘(6) COMPENSATION FOR LOST WORK.— 
‘‘(A) IN
GENERAL.—Subject to subpara-
graph (B), an employer with respect to whom 
an order is issued under paragraph (1) shall 
pay each employee of the employer, who loses 
compensation due to the work of such employee 
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ceasing as a result of such order, the compensa-
tion that would be owed to such employee if the 
order was not issued. 
‘‘(B) 
LIMITATION.—Compensation 
paid 
under subparagraph (A) shall be for each day, 
not to exceed 10 days, for which the employee 
would be paid if the order described in such 
subparagraph were not in effect. 
‘‘(7) SUCCESSFULLY DISPROVING OCCURRENCE 
OF MISCLASSIFICATION.— 
‘‘(A) IN GENERAL.—In any case where an 
employer with respect to whom an order was 
issued under paragraph (1) successfully proves, 
through a review under paragraph (3) or a sub-
sequent hearing or appeals proceeding under 
paragraph (4), that the 2 or more individuals 
who were the subject of the order were not 
misclassified in violation of section 15(a)(6)— 
‘‘(i) the order issued under paragraph 
(1), and any order issued against the em-
ployer under subsection (b)(1) with respect 
to such 2 or more individuals, shall cease 
to be in effect; 
‘‘(ii) the employer shall not be liable 
for any applicable unpaid minimum wages, 
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unpaid overtime compensation, other dam-
ages, or civil penalties owed by the em-
ployer under section 16 with respect to the 
misclassification of such 2 or more individ-
uals; and 
‘‘(iii) the Secretary of Labor, adminis-
trative law judge, or the court shall award 
(and the Secretary of the Treasury shall, 
in accordance with subparagraph (B), pay) 
to the employer— 
‘‘(I) an amount equal to any de-
monstrable lost net profits resulting 
from the order, as demonstrated by 
clear and convincing evidence; and 
‘‘(II) reasonable fees and ex-
penses of attorneys in the same man-
ner as such fees and expenses could 
be awarded under section 2412 of title 
28, United States Code, if the em-
ployer was a prevailing party and the 
review, hearing, or appeals proceeding 
was a civil action brought by or 
against the United States. 
‘‘(B) SOURCE OF FUNDS.—The Secretary 
of the Treasury shall, upon notification by the 
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Secretary of Labor, administrative law judge, or 
court, as applicable, pay any amounts, fees, or 
expenses awarded under subparagraph (A)(iii) 
from amounts available in the general fund of 
the Treasury.’’. 
(B) PENALTIES.—Section 16(e) of the 
Fair Labor Standards Act of 1938 (29 U.S.C. 
216(e)), as amended by paragraph (3)(C), is 
further amended by adding at the end the fol-
lowing: 
‘‘(8) PENALTIES FOR VIOLATING RECLASSIFICATION 
ORDERS.— 
‘‘(A) CIVIL PENALTIES.—Any person who vio-
lates a reclassification order issued by the Secretary 
under section 17(b)(1) shall be subject to a civil pen-
alty of not less than $5,000 per day, with each day 
constituting a separate offense. 
‘‘(B) ADDITIONAL DAMAGES.—In any case in 
which an employer contests a reclassification order 
issued under paragraph (1) of section 17(b) in a re-
view under paragraph (3) of such section, a hearing 
under paragraph (4)(A) of such section, and a sub-
sequent judicial proceeding under paragraph (4)(B) 
of such section, and the court in such proceeding 
rules in favor of the Secretary— 
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‘‘(i) the court shall determine if, during the 
period between the issuance of such order and 
the conclusion of the proceeding, the employer 
violated such order by not classifying the 1 or 
more individuals as employees during that pe-
riod; and 
‘‘(ii) if the court determines the employer 
so violated the order during that period— 
‘‘(I) the court shall determine the 
amount of net profits derived by the em-
ployer from the individuals’ labor during 
that period; and 
‘‘(II) the court shall assess damages 
in the amount determined under subclause 
(I), which damages shall be awarded to 
such individuals by the court.’’. 
(C) CONFORMING AMENDMENTS.—Sections 
12(b) and 16(b) of the Fair Labor Standards 
Act of 1938 (29 U.S.C. 212(b) and 216(b)) are 
amended by striking ‘‘section 17’’ each place it 
appears and inserting ‘‘section 17(a)’’. 
(8) PRIVATE
ATTORNEYS
GENERAL.—Section 
16 of the Fair Labor Standards Act of 1938 (29 
U.S.C. 216), as amended by paragraph (7)(B), is 
further amended— 
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(A) in subsection (b), by inserting after the 
third sentence the following: ‘‘Any employer 
who violates a provision of this Act for which 
a civil penalty may be assessed by the Secretary 
under this Act may, in accordance with sub-
section (f), be liable to the employee or employ-
ees affected in the amount of the civil penalty.’’; 
(B) in subsection (e)— 
(i) in paragraph (3), in the matter 
preceding subparagraph (A) of the second 
sentence, by inserting ‘‘, except as provided 
in subsection (f)(3)(A),’’ after ‘‘may’’; and 
(ii) in paragraph (5)— 
(I) in the first sentence, by in-
serting ‘‘and as provided in subsection 
(f)(3)(B),’’ after ‘‘Except for civil pen-
alties collected for violations of section 
12’’; and 
(II) in the second sentence, by 
striking ‘‘Civil penalties’’ and insert-
ing ‘‘Except as provided in subsection 
(f)(3)(B), civil penalties’’; and 
(C) by adding at the end the following: 
‘‘(f) PRIVATE RIGHT OF ACTION FOR PENALTIES.— 
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‘‘(1) IN GENERAL.—Notwithstanding any other 
provision in this Act, an employee that is affected by 
a violation of a provision of this Act for which a civil 
penalty may be assessed by the Secretary under this 
Act may, subject to paragraph (2), bring a civil ac-
tion in accordance with subsection (b) for the recov-
ery of the amount of the penalty on behalf of the 
employee and any other employees similarly situated 
(subject to the requirements for being a party plain-
tiff under such subsection). 
‘‘(2) NOTICE.— 
‘‘(A) IN GENERAL.—Prior to filing the civil 
action described in paragraph (1), the employee 
filing such action shall file with the Secretary a 
notice of— 
‘‘(i) the complaint of the employee; 
and 
‘‘(ii) the intention of the employee to 
file the action and recover the amount of 
the penalty and any other amount the em-
ployee is seeking under subsection (b) from 
the employer. 
‘‘(B) NOTIFICATION
BY
SECRETARY
TO 
EMPLOYEE.— 
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‘‘(i) IN
GENERAL.—The Secretary 
shall, not later than 60 days after receiving 
the notice under subparagraph (A), notify 
the employee of whether the Secretary has 
assessed, is assessing, or plans to assess 
the civil penalty in accordance with this 
Act. 
‘‘(ii) TERMINATION
OF
EMPLOYEE 
RIGHT.—The right of an employee to bring 
an action under subsection (b) to recover a 
civil penalty under this subsection shall 
terminate upon the filing of a notification 
by the Secretary under clause (i) that the 
Secretary has assessed, is assessing, or 
plans to assess the civil penalty in accord-
ance with this Act. 
‘‘(3) TREATMENT OF PENALTIES RECOVERED 
BY EMPLOYEES.—In a case in which the Secretary 
notifies the employee that the Secretary has not as-
sessed, is not assessing, and plans not to assess the 
civil penalty (or fails to meet the required deadline 
for 
notifying 
the 
employee 
under 
paragraph 
(2)(B)(i))— 
‘‘(A) the second sentence of paragraph (3), 
and paragraph (5), of subsection (e) shall not 
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volved in the action equitably among such em-
ployees. 
‘‘(5) ARBITRATION.— 
‘‘(A) IN GENERAL.—Notwithstanding any 
other provision of Federal law and except as 
provided in subparagraph (B), the right to 
bring a civil action under this subsection may 
not be waived, limited, or otherwise restricted 
by any contract or other agreement between an 
employee and an employer entered into before 
the events giving rise to the civil action under 
this subsection occurred, including any contract 
or other agreement to resolve disputes through 
arbitration. 
‘‘(B) CONSENT OF SECRETARY.—No civil 
action brought under this subsection may be 
sent to or resolved through arbitration, regard-
less of whether all parties to the civil action 
have consented to arbitration, without the ex-
plicit consent of the Secretary for sending that 
specific action to arbitration.’’. 
(b) NATIONAL LABOR RELATIONS ACT.— 
(1) STRENGTHENING
EMPLOYEE
TEST.—Sec-
tion 2(3) of the National Labor Relations Act (29 
U.S.C. 152(3)) is amended— 
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(A) by striking ‘‘The term’’ and inserting 
‘‘(A) The term’’; 
(B) by striking ‘‘employment, but shall 
not’’ and inserting ‘‘employment. Such term 
shall not’’; and 
(C) by adding at the end the following: 
‘‘(B)(i) For purposes of this Act, and except as pro-
vided in the second sentence of subparagraph (A) and sub-
paragraphs (C) and (E), an individual performing any 
labor for remuneration for a person shall be an employee 
employed by such person and not an independent con-
tractor of the person, unless— 
‘‘(I) the individual is free from control and di-
rection in connection with the performance of the 
labor, both under the contract for the performance 
of the labor and in fact; 
‘‘(II) the labor is performed outside the usual 
course of the business of the person; and 
‘‘(III) the individual is customarily engaged in 
an independently established trade, occupation, pro-
fession, or business of the same nature as that in-
volved in the labor performed. 
‘‘(ii)(I) Clause (i) is not a codification of the common 
law and shall not be interpreted to reflect, or to be limited 
or restricted by, common law interpretations regarding 
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when an individual is an employee of another person. 
Clause (i) shall be considered complete as written, and any 
judicial or agency interpretation of such clause shall be 
limited to the explicit requirements of such clause. 
‘‘(II) The requirements of clause (i) shall not be in 
any way affected by any agreement, written or otherwise, 
that purports to demonstrate an individual’s acknowledg-
ment of or acquiescence to the absence of an employer- 
employee relationship with a particular employer. 
‘‘(C)(i) Notwithstanding any contrary provisions in 
this paragraph or paragraph (2), in any instance in which 
there is a non-compete agreement between a person and 
an individual who performs labor for such person, the 
presence of the non-compete agreement, without regard to 
the legality or enforceability of the non-compete agree-
ment, shall be evidence of control for purposes of subpara-
graph (B)(i)(I), but shall not by itself establish an employ-
ment relationship between such person and the individual. 
‘‘(ii) In this subparagraph, the term ‘non-compete 
agreement’ means an agreement between a person and an 
individual who performs labor for such person that re-
stricts the individual from performing, either during or 
after the individual performs labor for such person— 
‘‘(I) any labor for another person; 
‘‘(II) any labor for a specified period of time; 
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‘‘(III) any labor in a specified geographical 
area; or 
‘‘(IV) any labor for another person that is simi-
lar to the labor such individual performed for the 
person that is a party to such agreement.’’. 
(2) PRESUMPTION
OF
EMPLOYEE
STATUS.— 
Section 2(3) of the National Labor Relations Act 
(29 U.S.C. 152(3)), as amended by paragraph (1), 
is further amended by adding at the end the fol-
lowing: 
‘‘(D) For purposes of this Act, an individual per-
forming any labor for remuneration for a person shall be 
presumed to be an employee of the person, unless the 
party seeking to assert otherwise establishes by clear and 
convincing evidence that the individual is not an employee 
of the person in accordance with this paragraph.’’. 
(3) MISCLASSIFICATION AS A STANDALONE VIO-
LATION.— 
(A) IN GENERAL.—Section 8(a) of the Na-
tional Labor Relations Act (29 U.S.C. 158(a)) 
is amended— 
(i) in paragraph (5), by striking the 
period at the end and inserting a semi-
colon; and 
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(ii) by adding at the end the fol-
lowing: 
‘‘(6) to misclassify an employee of the employer, 
who is engaged in commerce or an industry affecting 
commerce, as not an employee of the employer for 
purposes of this Act;’’. 
(B) INCORPORATION TO FURTHER VIOLA-
TIONS.—Section 8(a) of the National Labor Re-
lations Act (29 U.S.C. 158(a)), as amended by 
subparagraph (A), is further amended by add-
ing at the end the following: 
‘‘(7) for the purpose, in whole or in part, of fa-
cilitating, or evading detection of, a violation of this 
Act, including a violation of paragraph (6)— 
‘‘(A) to incorporate or form, or assist in 
the incorporation or formation of, a corpora-
tion, partnership, limited liability corporation, 
or other entity; or 
‘‘(B) to pay or collect a fee for use of a 
foreign or domestic corporation, partnership, 
limited liability corporation, or other entity; 
or’’. 
(C) PENALTIES.—Section 12 of the Na-
tional Labor Relations Act (29 U.S.C. 162) is 
amended to read as follows: 
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‘‘SEC. 12. PENALTIES. 
‘‘(a) IN GENERAL.—Any person who shall willfully 
resist, prevent, impede, or interfere with any member of 
the Board or any of its agents or agencies in the perform-
ance of duties pursuant to this Act shall be punished by 
a fine of not more than $5,000 or by imprisonment for 
not more than one year, or both. 
‘‘(b) CIVIL PENALTIES FOR MISCLASSIFICATION OR 
INCORPORATION TO FURTHER VIOLATIONS.— 
‘‘(1) IN
GENERAL.—Any person who violates 
paragraph (6) or (7) of section 8(a) shall be subject 
to a civil penalty of— 
‘‘(A) subject to subparagraphs (B) and 
(C), $10,000; 
‘‘(B) if the violation is repeated or willful, 
$30,000; or 
‘‘(C) if the violation is widespread, 1 per-
cent of the net profits of the person for the year 
in which the person had the highest net profits 
out of all years in which the person was in such 
violation. 
‘‘(2) REPEATED, OR
WILLFUL, AND
WIDE-
SPREAD VIOLATIONS.—If a violation of paragraph 
(6) or (7) of section 8(a) is repeated or willful, as 
described in paragraph (1)(B), and is widespread, as 
described in paragraph (1)(C), the higher penalty of 
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