110 
would be paid if the order described in such 
paragraph were not in effect. 
‘‘(7) SUCCESSFULLY DISPROVING OCCURRENCE 
OF MISCLASSIFICATION.— 
‘‘(A) IN GENERAL.—In any case where an 
operator of a coal or other mine with respect to 
whom an order was issued under paragraph (1) 
successfully proves through a review under 
paragraph (3), or a subsequent hearing or ap-
peals proceeding under paragraph (4), that the 
2 or more individuals who were the subject of 
the order were not misclassified in violation of 
section 117(a)— 
‘‘(i) the order issued under paragraph 
(1), and any order issued against the oper-
ator under subsection (a)(1) with respect 
to such 2 or more individuals, shall cease 
to be in effect; 
‘‘(ii) the operator shall not be liable 
for any applicable back pay, damages, or 
civil penalties owed by the operator under 
this Act (including any mandatory health 
or safety standard, rule, order, or regula-
tion promulgated pursuant to this Act) 
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111 
with respect to the misclassification of 
such 2 or more individuals; and 
‘‘(iii) the Secretary of Labor, adminis-
trative law judge, or court shall award 
(and the Secretary of the Treasury, shall 
in accordance with subparagraph (B), pay) 
to the operator— 
‘‘(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 attorney fees 
and expenses of attorneys in the same 
manner as such fees and expenses 
could be awarded under section 2412 
of title 28, United States Code, if the 
operator was a prevailing party and 
the review, hearing, or appeals pro-
ceeding 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 amounts, fees, or 
expenses awarded under subparagraph (A)(iii) 
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from amounts available in the general fund of 
the Treasury.’’. 
(B) PENALTIES.—Section 110 of the Fed-
eral Mine Safety and Health Act of 1977 (30 
U.S.C. 820), as amended by paragraph (3)(C), 
is further amended by inserting after subsection 
(i), as so redesignated, the following: 
‘‘(j) PENALTIES FOR VIOLATING RECLASSIFICATION 
ORDERS.— 
‘‘(1) CIVIL PENALTIES.—Any operator of a coal 
or other mine who violates a reclassification order 
issued by the Secretary under section 108A(a)(1) 
shall be subject to a civil penalty of not less than 
$5,000 per day, with each day constituting a sepa-
rate offense. 
‘‘(2) ADDITIONAL DAMAGES.—In any case in 
which an operator of a coal or other mine contests 
a reclassification order issued under paragraph (1) 
of section 108A(a) in a review under paragraph (3) 
of such section, a hearing under paragraph (4)(A) of 
such section, and a subsequent judicial proceeding 
under paragraph (4)(B) of such section, and the 
court rules in favor of the Secretary— 
‘‘(A) the court shall determine if, during 
the period between the issuance of such order 
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113 
and the conclusion of the proceeding, the oper-
ator violated such order by not classifying the 
1 or more individuals as employees during that 
period; and 
‘‘(B) if the court determines the operator 
so violated the order during that period— 
‘‘(i) the court shall determine the 
amount of the net profits derived by the 
operator from the individuals’ labor during 
that period; and 
‘‘(ii) the court shall assess damages in 
the amount determined under clause (i), 
which damages shall be awarded to such 
individuals by the court.’’. 
(e) MIGRANT AND SEASONAL AGRICULTURAL WORK-
ER PROTECTION ACT.— 
(1) STRENGTHENING
EMPLOYEE
TEST.—The 
Migrant and Seasonal Agricultural Worker Protec-
tion Act (29 U.S.C. 1801 et seq.) is amended— 
(A) by redesignating section 4 (29 U.S.C. 
1803) as section 5; and 
(B) by inserting after section 3 (29 U.S.C. 
1802) the following: 
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‘‘SEC. 4. EMPLOYEE TEST. 
‘‘(a) IN GENERAL.—For purposes of this Act, includ-
ing any regulation under this Act and except as provided 
in subsection (c), an individual performing any service or 
activity described in section 3(3), including the handling, 
planting, drying, packing, packaging, processing, freezing, 
or grading described in such section, for remuneration for 
a person shall be an employee employed in agricultural 
employment by such person and not an independent con-
tractor of the person, unless— 
‘‘(1) the individual is free from control and di-
rection in connection with the performance of the 
service or activity, both under the contract for the 
performance of the service or activity and in fact; 
‘‘(2) the service or activity is performed outside 
the usual course of the business of the person; and 
‘‘(3) the individual is customarily engaged in an 
independently established trade, occupation, profes-
sion, or business of the same nature as that involved 
in the service or activity performed. 
‘‘(b) CLARIFICATION.— 
‘‘(1) RELATIONSHIP WITH COMMON LAW.—Sub-
section (a) is not a codification of the common law 
and shall not be interpreted to reflect, or to be lim-
ited or restricted by, common law interpretations re-
garding when an individual is an employee of an-
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other person. Subsection (a) shall be considered 
complete as written, and any judicial or agency in-
terpretation of such subsection shall be limited to 
the explicit requirements of such subsection. 
‘‘(2) IMPACT OF WRITTEN OR OTHER AGREE-
MENTS.—The requirements of subsection (a) shall 
not be in any way affected by any agreement, writ-
ten or otherwise, that purports to demonstrate an 
individual’s acknowledgment of or acquiescence to 
the absence of an employer-employee relationship 
with a particular employer. 
‘‘(c) NON-COMPETE AGREEMENTS.— 
‘‘(1) IN GENERAL.—Notwithstanding any con-
trary provisions in this Act, in any instance in which 
there is a non-compete agreement between a person 
and an individual who performs labor for such per-
son, the presence of the non-compete agreement, 
without regard to the legality or enforceability of the 
non-compete agreement, shall be evidence of control 
for purposes of subsection (a)(1), but shall not by 
itself establish an employment relationship between 
such person and the individual. 
‘‘(2) DEFINITION
OF
NON-COMPETE
AGREE-
MENT.—In this subsection, the term ‘non-compete 
agreement’ means an agreement between a person 
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and an individual who performs labor for such per-
son that restricts the individual from performing, ei-
ther during or after the individual performs labor 
for such person— 
‘‘(A) any labor for another person; 
‘‘(B) any labor for a specified period of 
time; 
‘‘(C) any labor in a specified geographical 
area; or 
‘‘(D) any labor for another person that is 
similar to the labor such individual performed 
for the person that is a party to such agree-
ment.’’. 
(2) PRESUMPTION
OF
EMPLOYEE
STATUS.— 
Section 4 of the Migrant and Seasonal Agricultural 
Worker Protection Act, as amended by paragraph 
(1), is further amended by adding at the end the fol-
lowing: 
‘‘(d) PRESUMPTION
OF EMPLOYEE STATUS.—For 
purposes of this Act, including any regulation under this 
Act, an individual performing any service or activity de-
scribed in section 3(3), including the handling, planting, 
drying, packing, packaging, processing, freezing, or grad-
ing described in such section, for remuneration for a per-
son shall be presumed to be an employee employed in agri-
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cultural employment of the person, unless the party seek-
ing to assert otherwise establishes by clear and convincing 
evidence that the individual is not such an employee in 
accordance with this section.’’. 
(3) MISCLASSIFICATION AS A STANDALONE VIO-
LATION.— 
(A) IN GENERAL.—Title IV of the Migrant 
and Seasonal Agricultural Worker Protection 
Act (29 U.S.C. 1841 et seq.) is amended by 
adding at the end the following: 
‘‘SEC. 405. MISCLASSIFICATION; INCORPORATION TO FUR-
THER VIOLATIONS. 
‘‘(a) IN GENERAL.—No agricultural employer, agri-
cultural association, or farm labor contractor shall 
misclassify a migrant agricultural worker or seasonal agri-
cultural worker employed as an employee by the employer, 
association, or contractor as not a migrant agricultural 
worker or seasonal agricultural worker employed as an 
employee by the employer, association, or contractor for 
purposes of this Act, including any regulation under this 
Act.’’. 
(B) INCORPORATION TO FURTHER VIOLA-
TIONS.—Section 405 of the Migrant and Sea-
sonal Agricultural Worker Protection Act, as 
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118 
added by subparagraph (A), is amended by add-
ing at the end the following: 
‘‘(b) INCORPORATION TO FURTHER VIOLATIONS.— 
No person shall, for the purpose, in whole or in part, of 
facilitating, or evading detection of, a violation of this Act, 
including a violation of subsection (a) or any regulation 
under this Act— 
‘‘(1) incorporate or form, or assist in the incor-
poration or formation of, a corporation, partnership, 
limited liability corporation, or other entity; or 
‘‘(2) pay or collect a fee for use of a foreign or 
domestic corporation, partnership, limited liability 
corporation, or other entity.’’. 
(C) PENALTIES.—Section 503(a) of the 
Migrant and Seasonal Agricultural Worker Pro-
tection Act (29 U.S.C. 1853(a)) is amended— 
(i) in paragraph (1), by striking 
‘‘paragraph (2)’’ and inserting ‘‘para-
graphs (2), (3), (4), and (5)’’; and 
(ii) by adding at the end the fol-
lowing: 
‘‘(3) PENALTIES FOR MISCLASSIFICATION AND 
INCORPORATION TO FURTHER VIOLATIONS.— 
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119 
‘‘(A) IN GENERAL.—Any person who vio-
lates section 405 shall be subject to a civil pen-
alty 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 
percent of the net profits of the person for 
the year in which the person had the high-
est 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 section 
405 is repeated or willful, as described in sub-
paragraph (A)(ii), and is widespread, as de-
scribed in subparagraph (A)(iii), the higher 
penalty of the penalties described in such sub-
paragraphs shall apply. 
‘‘(C) PAYMENT OF PENALTIES.—Any pen-
alty assessed under subparagraph (A) for a vio-
lation of section 405 shall be paid from an ac-
count of the person in such violation and not 
paid, or reimbursed, by any insurance plan that 
would indemnify the person from violations of 
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120 
such section. If a person receives a payment 
from an insurance plan to indemnify the person 
from a violation of such section, the person 
shall transfer the payment to the Secretary, in 
addition to the amount to be paid from the ac-
count of the person for the penalty.’’. 
(4) PROTECTION
FROM
RETALIATION
FOR 
BEING AN EMPLOYEE.—Part A of title V of the Mi-
grant and Seasonal Agricultural Worker Protection 
Act (29 U.S.C. 1851 et seq.) is amended— 
(A) by redesignating sections 505 and 506 
(29 U.S.C. 1855 and 1856) as sections 506 and 
507, respectively; and 
(B) in section 506(a) (29 U.S.C. 1855(a)), 
as so redesignated— 
(i) by striking ‘‘No person’’ and in-
serting ‘‘(1) No person’’; and 
(ii) by adding at the end the fol-
lowing: 
‘‘(2) No person shall intimidate, threaten, restrain, 
coerce, blacklist, discharge, or in any manner discriminate 
against any migrant agricultural worker or seasonal agri-
cultural worker because such worker— 
‘‘(A) is required to be classified as employed in 
agricultural employment by the person for purposes 
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121 
of this Act, including any regulation under this Act, 
and not as an independent contractor; and 
‘‘(B) was classified by the person as an inde-
pendent contractor prior to the date of enactment of 
the Worker Flexibility and Small Business Protec-
tion Act of 2020.’’. 
(5) RULES REGARDING UNLAWFUL DISCHARGE 
OR DISCRIMINATION.—Section 506 of the Migrant 
and Seasonal Agricultural Worker Protection Act 
(29 U.S.C. 1855), as so redesignated, is amended by 
adding at the end the following: 
‘‘(c) RULES REGARDING UNLAWFUL DISCHARGE OR 
DISCRIMINATION.— 
‘‘(1) PRESUMPTION OF RETALIATION.—Any ac-
tion taken by a person described in subsection (a)(1) 
against any migrant agricultural worker or seasonal 
agricultural worker within 90 days of the worker 
taking any action described in such subsection, in-
cluding taking any such action with respect to exer-
cising the right pursuant to section 405(a) to not be 
misclassified, shall establish a rebuttable presump-
tion that the action is discrimination against the 
worker in violation of subsection (a). 
‘‘(2) MOTIVATING FACTOR.—Unlawful discrimi-
nation, including by intimidation, threat, restraint, 
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coercion, blacklisting, or discharge as described in 
subsection (a), against a migrant agricultural worker 
or seasonal agricultural worker under such sub-
section, is established when the complaining party 
demonstrates that one or more actions or the classi-
fication described in such subsection was a moti-
vating factor for such discrimination, even if such 
discrimination was also motivated by other factors.’’. 
(6) 
MISCLASSIFICATION
ENFORCEMENT 
THROUGH
RECLASSIFICATION
ORDERS
AND
STOP 
WORK ORDERS.— 
(A) IN GENERAL.—Part A of title V of the 
Migrant and Seasonal Agricultural Worker Pro-
tection Act (29 U.S.C. 1851 et seq.), as amend-
ed by paragraph (5), is further amended by 
adding at the end the following: 
‘‘SEC. 508. MISCLASSIFICATION ENFORCEMENT THROUGH 
RECLASSIFICATION 
ORDERS 
AND 
STOP 
WORK ORDERS. 
‘‘(a) RECLASSIFICATION ORDERS.— 
‘‘(1) IN
GENERAL.—If the Secretary deter-
mines, after an investigation under section 512, that 
an agricultural employer, agricultural association, or 
farm labor contractor has misclassified 1 or more in-
dividuals who are migrant agricultural workers or 
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seasonal agricultural workers employed by the em-
ployer, association, or contractor as not such work-
ers employed by such employer, association, or con-
tractor in violation of section 405(a)— 
‘‘(A) the Secretary shall issue, not later 
than 24 hours after making such determination, 
an order against the employer, association, or 
contractor requiring the employer, association, 
or contractor to immediately classify the 1 or 
more individuals as employed by the employer, 
association, or contractor; and 
‘‘(B) the employer, association, or con-
tractor shall immediately comply with the order 
issued under subparagraph (A) or shall other-
wise be in violation of section 405(a). 
‘‘(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, association, 
or contractor, which may be accomplished by 
the posting of a copy of the order in a con-
spicuous location at the place of business of the 
employer, association, or contractor; and 
‘‘(B) remain in effect during any review 
under paragraph (3) with respect to such order 
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and during any hearing and appeal of such 
order under paragraph (4). 
‘‘(3) REVIEW FOR RECONSIDERATION.— 
‘‘(A) IN
GENERAL.—An agricultural em-
ployer, agricultural association, or farm labor 
contractor against whom an order is issued 
under paragraph (1) may request a review by 
the Secretary to contest 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. 
‘‘(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. 
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125 
‘‘(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 the 
United States district court for any district in 
which the person is located or the United States 
District Court for the District of Columbia. 
‘‘(5) TEMPORARY OR PERMANENT INJUNCTIVE 
RELIEF.—The Secretary may petition any court de-
scribed in paragraph (4)(B) for temporary or perma-
nent injunctive relief under section 502(a) against 
any agricultural employer, agricultural association, 
or farm labor contractor that violates an order 
issued under paragraph (1). A court shall issue such 
temporary or permanent injunctive relief if the Sec-
retary has demonstrated it is just and proper. 
‘‘(6) SUCCESSFULLY DISPROVING OCCURRENCE 
OF MISCLASSIFICATION.— 
‘‘(A) IN GENERAL.—If an agricultural em-
ployer, agricultural association, or farm labor 
contractor with respect to whom an order was 
issued under paragraph (1) successfully proves 
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126 
through a review under paragraph (3), or a 
subsequent hearing or appeals proceeding under 
paragraph (4), that the 1 or more individuals 
who were the subject of the order were not 
misclassified in violation of section 405(a)— 
‘‘(i) the order issued under paragraph 
(1) shall cease to be in effect; 
‘‘(ii) the employer, association, or con-
tractor shall not be liable for any applica-
ble back pay, damages, or civil penalties 
owed by the employer, association, or con-
tractor under this Act (including any regu-
lation under this Act) with respect to the 
misclassification of such 1 or more individ-
uals; and 
‘‘(iii) the Secretary of Labor, adminis-
trative law judge, or court, as applicable, 
shall award (and the Secretary of the 
Treasury shall, in accordance with sub-
paragraph (B), pay) to the employer, asso-
ciation, or contractor reasonable fees and 
expenses of attorneys in the same manner 
as such fees and expenses could be award-
ed under section 2412 of title 28, United 
States Code, if the employer, association, 
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or contractor was a prevailing party and 
the review, hearing, or appeals proceeding 
was a civil action brought 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. 
‘‘(b) STOP WORK ORDERS.— 
‘‘(1) IN GENERAL.—In any case where an agri-
cultural employer, agricultural association, or farm 
labor contractor does not comply with a reclassifica-
tion order issued by the Secretary under subsection 
(a)(1), with respect to 2 or more individuals who are 
misclassified in violation of section 405(a), the Sec-
retary shall issue— 
‘‘(A) subject to subparagraph (B), an 
order against the employer, association, or con-
tractor requiring the cessation of all business 
operations of such employer, association, or 
contractor at the location of the violation; or 
‘‘(B) if an order described in subparagraph 
(A) has been previously issued against the em-
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ployer, association, or contractor by any Fed-
eral, State, or local agency for misclassifying an 
individual who is a migrant agricultural worker 
or seasonal agricultural worker employed as an 
employee by the employer, association, or con-
tractor as not such an employee in violation of 
section 405(a), or an equivalent State or local 
law as determined by the Secretary, an order 
against the employer, association, or contractor 
requiring the cessation of all business oper-
ations of such employer, association, or con-
tractor at all business locations of the employer, 
association, or contractor, including locations 
other 
than 
the 
location 
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, as-
sociation, or contractor, which may be ac-
complished by the posting of a copy of the 
order in a conspicuous location at the place 
of business of the employer, association, or 
contractor; and 
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129 
‘‘(ii) remain in effect— 
‘‘(I) during any review conducted 
under paragraph (3) with respect to 
such order and during any hearing 
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 employer, 
association, or contractor— 
‘‘(I) has corrected the violation of 
section 405(a) 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 back pay, 
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130 
damages, and civil penalties owed by 
the employer, association, or con-
tractor under this Act, including any 
regulation under this Act. 
‘‘(ii) REINSTATEMENT.—If, at any 
time after the Secretary issues a release 
order under clause (i), the employer, asso-
ciation, or contractor fails to comply with 
the terms of the payment schedule de-
scribed in clause (i)(II), the Secretary shall 
reinstate the order issued under paragraph 
(1) until the employer, association, or con-
tractor is in compliance with such terms. 
‘‘(3) REVIEW FOR RECONSIDERATION.— 
‘‘(A) IN
GENERAL.—An agricultural em-
ployer, agricultural association, or farm labor 
contractor against whom an order is issued 
under paragraph (1) may request a review by 
the Secretary to contest 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.— 
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‘‘(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. 
‘‘(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) APPEALS.—Any person aggrieved by a de-
termination of the Secretary under paragraph 
(3)(C)(ii) may— 
‘‘(A) appeal such determination to an ad-
ministrative law judge; and 
‘‘(B) appeal an order of an administrative 
law judge under subparagraph (A) to the 
United States district court for any district in 
which the person is located or the United States 
District Court for the District of Columbia. 
‘‘(5) TEMPORARY OR PERMANENT INJUNCTIVE 
RELIEF.—The Secretary may petition a court de-
scribed in paragraph (4)(B) for temporary or perma-
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132 
nent injunctive relief under section 502(a) against 
any agricultural employer, agricultural association, 
or farm labor contractor that violates an order 
issued under paragraph (1). A court shall issue such 
temporary or permanent injunctive relief if the Sec-
retary has demonstrated it is just and proper. 
‘‘(6) COMPENSATION FOR LOST WORK.— 
‘‘(A) IN
GENERAL.—Subject to subpara-
graph (B), an agricultural employer, agricul-
tural association, or farm labor contractor with 
respect to whom an order is issued under para-
graph (1) shall pay each migrant agricultural 
worker or seasonal agricultural worker em-
ployed by the employer, association, or con-
tractor, who loses compensation due to the work 
of such worker ceasing as a result of such 
order, the compensation that would be owed to 
such worker 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 migrant 
agricultural worker or seasonal agricultural 
worker would be paid if the order described in 
such subparagraph were not in effect. 
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133 
‘‘(7) SUCCESSFULLY DISPROVING OCCURRENCE 
OF MISCLASSIFICATION.— 
‘‘(A) IN GENERAL.—In any case where an 
agricultural employer, agricultural association, 
or farm labor contractor with respect to whom 
an order was issued under paragraph (1) suc-
cessfully proves through a review under para-
graph (3) or a subsequent 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 sec-
tion 405(a)— 
‘‘(i) the order issued under paragraph 
(1), and any order issued against the em-
ployer, association, or contractor under 
subsection (a)(1), with respect to such 2 or 
more individuals, shall cease to be in ef-
fect; 
‘‘(ii) the employer, association, or con-
tractor shall not be liable for any applica-
ble back pay, damages, or civil penalties 
owed by the employer, association, or con-
tractor under this Act (including any regu-
lation under this Act) with respect to the 
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134 
misclassification of such 2 or more individ-
uals; and 
‘‘(iii) the Secretary of Labor, adminis-
trative law judge, or court shall award 
(and the Secretary of the Treasury shall, 
in accordance with subparagraph (B), pay) 
to the employer, association, or con-
tractor— 
‘‘(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, association, or contractor 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 
Secretary of Labor, administrative law judge, or 
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pamtmann on DSKBC07HB2PROD with BILLS
135 
a 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 503(a) of the 
Migrant and Seasonal Agricultural Worker Pro-
tection Act (29 U.S.C. 1853(a)), as amended by 
paragraph (3)(C), is further amended by adding 
at the end the following: 
‘‘(4) PENALTIES FOR VIOLATING RECLASSIFICA-
TION ORDERS.— 
‘‘(A) CIVIL PENALTIES.—Any person who 
violates a reclassification order issued by the 
Secretary under section 508(a)(1) shall be sub-
ject to a civil penalty of not less than $5,000 
per day, with each day constituting a separate 
offense. 
‘‘(B) ADDITIONAL DAMAGES.—In any case 
in which an agricultural employer, agricultural 
association, or farm labor contractor contests a 
reclassification order issued under paragraph 
(1) of section 508(a) in a review under para-
graph (3) of such section, a hearing under 
paragraph (4)(A) of such section, and a subse-
quent judicial proceeding under paragraph 
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136 
(4)(B) of such section, and the court in such 
proceeding rules in favor of the Secretary— 
‘‘(i) the court shall determine if, dur-
ing the period between the issuance of such 
order and the conclusion of the proceeding, 
the employer, association, or contractor 
violated such order by not classifying the 1 
or more individuals as employees employed 
by the employer, association, or contractor 
during that period; and 
‘‘(ii) if the court determines the em-
ployer, association, or contractor so vio-
lated the order during that period— 
‘‘(I) the court shall determine the 
amount of net profits derived by the 
employer, association, or contractor 
from the individuals’ labor during that 
period; and 
‘‘(II) the court shall assess dam-
ages in the amount determined under 
subclause (I), which damages shall be 
awarded to such individuals by the 
court.’’. 
(f) DAVIS-BACON ACT.— 
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137 
(1) STRENGTHENING
EMPLOYEE
TEST.—Sub-
chapter IV of chapter 31 of title 40, United States 
Code, is amended by inserting after section 3141 the 
following: 
‘‘§ 3141a. Employee test 
‘‘(a) IN GENERAL.—For purposes of this subchapter 
and except as provided in subsection (c), a laborer or me-
chanic performing any labor under a contract or sub-
contract to which this subchapter applies shall be an em-
ployee employed by the contractor or subcontractor of the 
contract or subcontract and not an independent con-
tractor, unless— 
‘‘(1) the laborer or mechanic is free from con-
trol and direction in connection with the perform-
ance of the labor, both under the contract or sub-
contract for the performance of the labor and in 
fact; 
‘‘(2) the labor is performed outside the usual 
course of the business of such contractor or subcon-
tractor; and 
‘‘(3) the laborer or mechanic is customarily en-
gaged in an independently established trade, occupa-
tion, profession, or business of the same nature as 
that involved in the labor performed. 
‘‘(b) CLARIFICATIONS.— 
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138 
‘‘(1) RELATIONSHIP WITH COMMON LAW.—Sub-
section (a) is not a codification of the common law 
and shall not be interpreted to reflect, or to be lim-
ited or restricted by, common law interpretations re-
garding when an individual is an employee of an-
other person. Subsection (a) shall be considered 
complete as written, and any judicial or agency in-
terpretation of such subsection shall be limited to 
the explicit requirements of such subsection. 
‘‘(2) IMPACT OF WRITTEN OR OTHER AGREE-
MENTS.—The requirements of subsection (a) shall 
not be in any way affected by any agreement, writ-
ten or otherwise, that purports to demonstrate an 
individual’s acknowledgment of or acquiescence to 
the absence of an employer-employee relationship 
with a particular employer. 
‘‘(c) NON-COMPETE AGREEMENTS.— 
‘‘(1) IN GENERAL.—Notwithstanding any con-
trary provisions in this subchapter, 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 agree-
ment, without regard to the legality or enforceability 
of the non-compete agreement, shall be evidence of 
control for purposes of subsection (a)(1), but shall 
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pamtmann on DSKBC07HB2PROD with BILLS
139 
not by itself establish an employment relationship 
between such person and the individual. 
‘‘(2) DEFINITION
OF
NON-COMPETE
AGREE-
MENT.—In this subsection, the term ‘non-compete 
agreement’ means an agreement between a person 
and an individual who performs labor for such per-
son that restricts the individual from performing, ei-
ther during or after the individual performs labor 
for such person— 
‘‘(A) any labor for another person; 
‘‘(B) any labor for a specified period of 
time; 
‘‘(C) any labor in a specified geographical 
area; or 
‘‘(D) any labor for another person that is 
similar to the labor such individual performed 
for the person that is a party to such agree-
ment.’’. 
(2) PRESUMPTION
OF
EMPLOYEE
STATUS.— 
Section 3141a of title 40, United States Code, as 
added by paragraph (1), is amended by adding at 
the end the following: 
‘‘(d) PRESUMPTION
OF EMPLOYEE STATUS.—For 
purposes of this subchapter, a laborer or mechanic per-
forming any labor under a contract or subcontract to 
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140 
which this subchapter applies shall be an employee em-
ployed by the contractor or subcontractor of the contract 
or subcontract and not an independent contractor, unless 
the party seeking to assert otherwise establishes by clear 
and convincing evidence that the laborer or mechanic is 
not such an employee in accordance with this section.’’. 
(3) MISCLASSIFICATION AS A STANDALONE VIO-
LATION; 
INCORPORATION
TO
FURTHER
VIOLA-
TIONS.—Subchapter IV of chapter 31 of title 40, 
United States Code, is amended by inserting after 
section 3144, the following: 
‘‘§ 3144a. Prohibitions against misclassification, in-
corporation to further violations, and re-
taliation; reclassification orders and stop 
work orders 
‘‘(a) MISCLASSIFICATION.—No contractor or subcon-
tractor of a contract or subcontract to which this sub-
chapter applies shall misclassify a laborer or mechanic, 
who is an employee of the contractor or subcontractor and 
is performing any labor under the contract or subcontract, 
as not an employee of the contractor or subcontractor for 
purposes of this subchapter. 
‘‘(b) INCORPORATION TO FURTHER VIOLATIONS.— 
No contractor or subcontractor, for the purpose, in whole 
or in part, of facilitating, or evading detection of, a viola-
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pamtmann on DSKBC07HB2PROD with BILLS
141 
tion of this subchapter, including a violation of subsection 
(a), shall— 
‘‘(1) incorporate or form, or assist in the incor-
poration or formation of, a corporation, partnership, 
limited liability corporation, or other entity; or 
‘‘(2) pay or collect a fee for use of a foreign or 
domestic corporation, partnership, limited liability 
corporation, or other entity.’’. 
(4) PROTECTION
FROM
RETALIATION
FOR 
BEING AN EMPLOYEE; PRESUMPTION OF RETALIA-
TION.—Section 3144a of title 40, United States 
Code, added by paragraph (3), is amended by add-
ing at the end the following: 
‘‘(c) RETALIATION.— 
‘‘(1) IN
GENERAL.—A contractor or subcon-
tractor of a contract or subcontract to which this 
subchapter applies shall not discharge or in any 
other manner discriminate against a laborer or me-
chanic who is employed by the contractor or subcon-
tractor and is performing any labor under the con-
tract or subcontract, because— 
‘‘(A) such laborer or mechanic has filed 
any complaint or instituted or caused to be in-
stituted any proceeding under or related to this 
subchapter, or has testified or is about to tes-
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pamtmann on DSKBC07HB2PROD with BILLS
142 
tify in any such proceeding, or has served or is 
about to serve on an industry committee; or 
‘‘(B) such laborer or mechanic— 
‘‘(i) is required, pursuant to the en-
actment of the Worker Flexibility and 
Small Business Protection Act of 2020, to 
be classified as an employee of the con-
tractor or subcontractor for purposes of 
this subchapter and not an independent 
contractor; and 
‘‘(ii) was classified by the contractor 
or subcontractor as an independent con-
tractor prior to the date of enactment of 
the Worker Flexibility and Small Business 
Protection Act of 2020. 
‘‘(2) 
RULES
REGARDING
UNLAWFUL
DIS-
CHARGE OR DISCRIMINATION.— 
‘‘(A) PRESUMPTION
OF
RETALIATION.— 
Any action taken by a contractor or subcon-
tractor of a contract or subcontract to which 
this subchapter applies against a laborer or me-
chanic who is employed by the contractor or 
subcontractor, and is performing any labor 
under the contract or subcontract, within 90 
days of the laborer or mechanic taking any ac-
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143 
tion described in paragraph (1)(A), including 
taking any such action with respect to exer-
cising the right of the laborer or mechanic pur-
suant to subsection (a) to not be misclassified, 
shall establish a rebuttable presumption that 
the action is discrimination against the laborer 
or mechanic in violation of paragraph (1). 
‘‘(B) MOTIVATING FACTOR.—Unlawful dis-
charge or other discrimination against a laborer 
or mechanic under paragraph (1) is established 
when the complaining party demonstrates that 
one of the actions or the classification described 
in such paragraph was a motivating factor for 
such discharge or other discrimination, even if 
such discharge or other discrimination was also 
motivated by other factors.’’. 
(5) 
MISCLASSIFICATION
ENFORCEMENT 
THROUGH
RECLASSIFICATION
ORDERS
AND
STOP 
WORK ORDERS.—Section 3144a of title 40, United 
States Code, as amended by paragraph (4), is fur-
ther amended by adding at the end the following: 
‘‘(d) MISCLASSIFICATION ENFORCEMENT THROUGH 
RECLASSIFICATION ORDERS.— 
‘‘(1) IN GENERAL.—If the Secretary determines 
that a contractor or subcontractor of a contract or 
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144 
subcontract to which this subchapter applies has 
misclassified 1 or more laborers or mechanics in vio-
lation of subsection (a)— 
‘‘(A) the Secretary shall issue, not later 
than 24 hours after making such determination, 
an order against the contractor or subcon-
tractor requiring the contractor or subcon-
tractor to immediately classify the 1 or more la-
borers or mechanics as employees of the con-
tractor or subcontractor; and 
‘‘(B) the contractor or subcontractor shall 
immediately comply with the order issued under 
subparagraph (A) or shall otherwise be in viola-
tion of subsection (a). 
‘‘(2) ORDERS.—An order issued under para-
graph (1) shall— 
‘‘(A) be effective at the time at which the 
order is served upon the contractor or subcon-
tractor, which may be accomplished by the post-
ing of a copy of the order in a conspicuous loca-
tion at the place of business of the contractor 
or subcontractor; and 
‘‘(B) remain in effect during any review 
conducted under paragraph (3) and during any 
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145 
hearing and appeal of such order under para-
graph (4). 
‘‘(3) REVIEW FOR RECONSIDERATION.— 
‘‘(A) IN GENERAL.—A contractor or sub-
contractor against whom an order is issued 
under paragraph (1) may request a review by 
the Secretary to contest 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 hearing 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. 
‘‘(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. 
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146 
‘‘(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 court of 
competent jurisdiction. 
‘‘(5) TEMPORARY OR PERMANENT INJUNCTIVE 
RELIEF.—The Secretary may petition any court of 
competent jurisdiction for temporary or permanent 
injunctive relief against any contractor or subcon-
tractor that violates an order issued under para-
graph (1). A court shall issue such temporary or 
permanent injunctive relief if the Secretary has dem-
onstrated it is just and proper. 
‘‘(6) SUCCESSFULLY DISPROVING OCCURRENCE 
OF MISCLASSIFICATION.— 
‘‘(A) IN GENERAL.—If a contractor or sub-
contractor with respect to whom an order was 
issued under paragraph (1) successfully proves 
through a review under paragraph (3), or a 
subsequent hearing or appeals proceeding under 
paragraph (4), that the 1 or more laborers or 
mechanics who were the subject of the order 
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147 
were not misclassified in violation of subsection 
(a)— 
‘‘(i) the order issued under paragraph 
(1) shall cease to be in effect; 
‘‘(ii) the contractor or subcontractor 
shall not be liable for any applicable back 
pay, damages, or civil penalties owed by 
the contractor or subcontractor under this 
subchapter 
with 
respect 
to 
the 
misclassification of such 2 or more laborers 
or mechanics; and 
‘‘(iii) the Secretary of Labor, adminis-
trative law judge, or court, as applicable, 
shall award (and the Secretary of the 
Treasury shall, in accordance with sub-
paragraph (B), pay) to the contractor or 
subcontractor reasonable fees and expenses 
of attorneys in the same manner as such 
fees and expenses could be awarded under 
section 2412 of title 28, United States 
Code, if the contractor or subcontractor 
was a prevailing party and the hearing or 
appeals proceeding was a civil action 
brought by or against the United States. 
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‘‘(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. 
‘‘(e) MISCLASSIFICATION ENFORCEMENT THROUGH 
STOP WORK ORDERS.— 
‘‘(1) IN GENERAL.—In any case where a con-
tractor or subcontractor of a contract or subcontract 
to which this subchapter applies does not comply 
with a reclassification order issued by the Secretary 
under subsection (d)(1), with respect to 2 or more 
laborers or mechanics who are misclassified in viola-
tion of subsection (a), the Secretary shall issue— 
‘‘(A) subject to subparagraph (B), an 
order against the contractor or subcontractor 
requiring the cessation of all business oper-
ations of such contractor or subcontractor at 
the location of the violation; or 
‘‘(B) if an order described in subparagraph 
(A) has been previously issued against the con-
tractor or subcontractor by any Federal, State, 
or local agency for misclassifying a laborer or 
mechanic employed by the contractor or subcon-
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149 
tractor and performing any labor under the 
contract or subcontract, as not an employee of 
the contractor or subcontractor in violation of 
subsection (a), or an equivalent State or local 
law as determined by the Secretary, an order 
against the contractor or subcontractor requir-
ing the cessation of all business operations of 
such contractor or subcontractor at all business 
locations of the contractor or subcontractor, in-
cluding locations other than the location 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 contractor or 
subcontractor, which may be accomplished 
by the posting of a copy of the order in a 
conspicuous location at the place of busi-
ness of the contractor or subcontractor; 
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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pamtmann on DSKBC07HB2PROD with BILLS
150 
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 con-
tractor or subcontractor— 
‘‘(I) has corrected the violation of 
subsection (a) with respect to the 2 or 
more laborers or mechanics who were 
misclassified resulting in the order; 
and 
‘‘(II) has agreed to a payment 
schedule for all applicable back pay, 
damages, and civil penalties owed by 
the contractor or subcontractor under 
this subchapter. 
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151 
‘‘(ii) REINSTATEMENT.—If, at any 
time after the Secretary issues a release 
order under clause (i), the contractor or 
subcontractor 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 contractor or subcontractor is in com-
pliance with such terms. 
‘‘(3) REVIEW FOR RECONSIDERATION.— 
‘‘(A) IN GENERAL.—A contractor or sub-
contractor against whom an order is issued 
under paragraph (1) may request a review by 
the Secretary to contest 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 
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152 
‘‘(II) conclude not later than 24 
hours after such commencement. 
‘‘(D) DETERMINATION.—Not later than 72 
hours after a review concludes under clause 
(i)(II), the Secretary shall determine whether to 
affirm, modify, or revoke the contested order. 
‘‘(4) HEARING 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 court of 
competent jurisdiction. 
‘‘(5) TEMPORARY OR PERMANENT INJUNCTIVE 
RELIEF.—The Secretary may petition any court of 
competent jurisdiction for temporary or permanent 
injunctive relief against any contractor or subcon-
tractor that violates an order issued under para-
graph (1). A court shall issue such temporary or 
permanent injunctive relief if the Secretary has dem-
onstrated it is just and proper. 
‘‘(6) COMPENSATION FOR LOST WORK.— 
‘‘(A) IN
GENERAL.—Subject to subpara-
graph (B), a contractor or subcontractor with 
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respect to whom an order is issued under para-
graph (1) shall pay each laborer or mechanic 
described in subparagraph (C) the compensa-
tion that would be owed to such laborer or me-
chanic 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 laborer or 
mechanic would be paid if the order described 
in such subparagraph were not in effect. 
‘‘(C) APPLICABILITY.—Subparagraph (A) 
applies to a laborer or mechanic who— 
‘‘(i) is an employee of the contractor 
or subcontractor against whom an order is 
issued under paragraph (1); 
‘‘(ii) is performing labor under the 
contract or subcontract, respectively, that 
is subject to the order; and 
‘‘(iii) loses compensation due to the 
work of such laborer or mechanic ceasing 
as a result of such order. 
‘‘(7) SUCCESSFULLY DISPROVING OCCURRENCE 
OF MISCLASSIFICATION.— 
‘‘(A) IN GENERAL.—In any case where a 
contractor or subcontractor with respect to 
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154 
whom an order was issued under paragraph (1) 
successfully proves through a review under 
paragraph (3) or subsequent hearing or appeals 
proceeding under paragraph (4) that the 2 or 
more laborers or mechanics who were the sub-
ject of the order were not misclassified in viola-
tion of subsection (a)— 
‘‘(i) the order issued under paragraph 
(1), and any order issued against the con-
tractor or subcontractor under subsection 
(d)(1) with respect to such 2 or more la-
borers or mechanics, shall cease to be in 
effect; 
‘‘(ii) the contractor or subcontractor 
shall not be liable for any applicable back 
pay, damages, or civil penalties owed by 
the contractor or subcontractor under this 
subchapter 
with 
respect 
to 
the 
misclassification of such 2 or more laborers 
or mechanics; 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 contractor or subcontractor— 
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155 
‘‘(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 con-
tractor or subcontractor was a pre-
vailing party and the review, hearing, 
or appeals proceeding was a civil ac-
tion 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 amounts, fees, or 
expenses awarded under subparagraph (A)(iii) 
from amounts available in the general fund of 
the Treasury.’’. 
(6) PENALTIES FOR VIOLATIONS OF NEW RE-
QUIREMENTS.—Subchapter IV of chapter 31 of title 
40, United States Code, is amended by inserting 
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156 
after section 3144a, as added by paragraph (3), the 
following: 
‘‘§ 3144c. Penalties; expanded liability 
‘‘(a) MISCLASSIFICATION; INCORPORATION TO FUR-
THER VIOLATIONS; RETALIATION.— 
‘‘(1) IN
GENERAL.—A contractor or subcon-
tractor that violates subsection (a), (b), or (c) of sec-
tion 3144a of this title 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 contractor or sub-
contractor for the year in which the contractor 
or subcontractor had the highest net profits out 
of all years in which the contractor or subcon-
tractor was in such violation. 
‘‘(2) REPEATED, OR
WILLFUL, AND
WIDE-
SPREAD VIOLATIONS.—If the violation of subsection 
(a), (b), or (c) of section 3144a of this title is re-
peated or willful, as described in paragraph (1)(B), 
and is widespread, as described in paragraph (1)(C), 
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157 
the higher amount of the amounts described in such 
paragraphs shall apply. 
‘‘(3) PAYMENT OF DAMAGES.—Any penalty as-
sessed under paragraph (1) for a violation of sub-
section (a), (b), or (c) of section 3144a of this title 
shall be paid from an account of the contractor or 
subcontractor in such violation for the violation and 
not paid, or reimbursed, by any insurance plan that 
would indemnify the contractor or subcontractor 
from violations of such subsection. If a contractor or 
subcontractor receives a payment from an insurance 
plan to indemnify the contractor or subcontractor 
from a violation of such subsection, the contractor or 
subcontractor shall transfer the payment to the Sec-
retary, in addition to the amount to be paid from 
the account of the contractor or subcontractor for 
the penalty. 
‘‘(b) MISCLASSIFICATION ENFORCEMENT THROUGH 
RECLASSIFICATION ORDERS.— 
‘‘(1) CIVIL PENALTIES.—A contractor or sub-
contractor that violates a reclassification order 
issued under section 3144a(d)(1) shall be subject to 
a civil penalty of not less than $5,000 per day, with 
each day constituting a separate offense. 
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158 
‘‘(2) ADDITIONAL DAMAGES.—In any case in 
which a contractor or subcontractor contests a re-
classification order issued under paragraph (1) of 
section 3144a(d) in a review under paragraph (3) of 
such section, a hearing under paragraph (4)(A) of 
such section, and a subsequent judicial proceeding 
under paragraph (4)(B) of such section, and the 
court in such proceeding rules in favor of the Sec-
retary— 
‘‘(A) the court shall determine if, during 
the period between the issuance of such order 
and the conclusion of the proceeding, the con-
tractor or subcontractor violated such order by 
not classifying the 1 or more laborer or me-
chanics as employees during that period; and 
‘‘(B) if the court determines the contractor 
or subcontractor so violated the order during 
that period— 
‘‘(i) the court shall determine the 
amount of net profits derived by the con-
tractor or subcontractor from the labor of 
the laborers or mechanics during that pe-
riod; and 
‘‘(ii) the court shall assess damages in 
the amount determined under clause (i), 
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159 
which damages shall be awarded to such 
individuals by the court.’’. 
(7) CONFORMING AMENDMENTS.—The table of 
sections for subchapter IV of chapter 31 of title 40, 
United States Code, is amended— 
(A) by inserting after the item relating to 
section 3141 the following: 
‘‘Sec. 3141a. Employee test.’’; 
and 
(B) by inserting after the item relating to 
section 3144 the following: 
‘‘Sec. 3144a. Prohibitions against misclassification, incorporation to further vio-
lations, and retaliation; reclassification orders and stop work 
orders. 
‘‘Sec. 3144c. Penalties; expanded liability.’’. 
(g) WALSH-HEALEY PUBLIC CONTRACTS ACT.— 
(1) STRENGTHENING EMPLOYEE TEST.—Chap-
ter 65 of title 41, United States Code, is amended 
by inserting after section 6501 of such title the fol-
lowing: 
‘‘§ 6501a. Employee test 
‘‘(a) IN GENERAL.—For purposes of this chapter and 
except as provided in subsection (c), an individual per-
forming any labor, with respect to the manufacture or fur-
nishing of materials, supplies, articles, or equipment, 
under a contract to which this chapter applies, shall be 
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160 
an employee employed by the contractor of such contract 
and not an independent contractor, unless— 
‘‘(1) 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; 
‘‘(2) the labor is performed outside the usual 
course of the business of such contractor; and 
‘‘(3) the individual is customarily engaged in an 
independently established trade, occupation, profes-
sion, or business of the same nature as that involved 
in the labor performed. 
‘‘(b) CLARIFICATIONS.— 
‘‘(1) RELATIONSHIP WITH COMMON LAW.—Sub-
section (a) is not a codification of the common law 
and shall not be interpreted to reflect, or to be lim-
ited or restricted by, common law interpretations re-
garding when an individual is an employee of an-
other person. Subsection (a) shall be considered 
complete as written, and any judicial or agency in-
terpretation of such subsection shall be limited to 
the explicit requirements of such subsection. 
‘‘(2) IMPACT OF WRITTEN OR OTHER AGREE-
MENTS.—The requirements of subsection (a) shall 
not be in any way affected by any agreement, writ-
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161 
ten or otherwise, that purports to demonstrate an 
individual’s acknowledgment of or acquiescence to 
the absence of an employer-employee relationship 
with a particular employer. 
‘‘(c) NON-COMPETE AGREEMENTS.— 
‘‘(1) IN GENERAL.—Notwithstanding any con-
trary provisions in this chapter, 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 agree-
ment, without regard to the legality or enforceability 
of the non-compete agreement, shall be evidence of 
control for purposes of subsection (a)(1), but shall 
not by itself establish an employment relationship 
between such person and the individual. 
‘‘(2) DEFINITION
OF
NON-COMPETE
AGREE-
MENT.—In this subsection, the term ‘non-compete 
agreement’ means an agreement between a person 
and an individual who performs labor for such per-
son that restricts the individual from performing, ei-
ther during or after the individual performs labor 
for such person— 
‘‘(A) any labor for another person; 
‘‘(B) any labor for a specified period of 
time; 
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162 
‘‘(C) any labor in a specified geographical 
area; or 
‘‘(D) any labor for another person that is 
similar to the labor such individual performed 
for the person that is a party to such agree-
ment.’’. 
(2) PRESUMPTION
OF
EMPLOYEE
STATUS.— 
Section 6501a of title 41, United States Code, as 
added by paragraph (1), is amended by adding at 
the end the following: 
‘‘(d) PRESUMPTION
OF EMPLOYEE STATUS.—For 
purposes of this chapter, an individual performing any 
labor, with respect to the manufacture or furnishing of 
materials, supplies, articles, or equipment, under a con-
tract to which this chapter applies, shall be an employee 
employed by the contractor of such contract unless the 
party seeking to assert otherwise establishes by clear and 
convincing evidence that the individual is not such an em-
ployee in accordance with this section.’’. 
(3) MISCLASSIFICATION AS A STANDALONE VIO-
LATION.— 
(A) IN GENERAL.—Section 6502 of title 
41, United States Code, is amended by adding 
at the end the following: 
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163 
‘‘(5) MISCLASSIFICATION.—The contractor shall 
not misclassify an individual performing any labor, 
with respect to the manufacture or furnishing of ma-
terials, supplies, articles, or equipment under the 
contract, who is an employee of the contractor as 
not such an employee for purposes of this chapter.’’. 
(B) INCORPORATION TO FURTHER VIOLA-
TIONS.—Section 6502 of title 41, United States 
Code, as amended by subparagraph (A), is fur-
ther amended by adding at the end the fol-
lowing: 
‘‘(6) INCORPORATION
TO
FURTHER
VIOLA-
TIONS.—The contractor shall not, for the purpose, 
in whole or in part, of facilitating, or evading detec-
tion of, a violation of this chapter, including a viola-
tion of paragraph (5)— 
‘‘(A) incorporate or form, or assist in the 
incorporation or formation of, a corporation, 
partnership, limited liability corporation, or 
other entity; or 
‘‘(B) pay or collect a fee for use of a for-
eign or domestic corporation, partnership, lim-
ited liability corporation, or other entity.’’. 
(4) PROTECTION
FROM
RETALIATION
FOR 
BEING AN EMPLOYEE; RULES REGARDING UNLAW-
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164 
FUL DISCHARGE OR DISCRIMINATION.—Section 6502 
of title 41, United States Code, as amended by para-
graph (4), is further amended by adding at the end 
the following: 
‘‘(7) RETALIATION.— 
‘‘(A) IN GENERAL.—The contractor shall 
not discharge or in any other manner discrimi-
nate against an individual employed by the con-
tractor in the manufacture or furnishing of ma-
terials, supplies, articles, or equipment under 
the contract, because— 
‘‘(i) such individual has filed any com-
plaint or instituted or caused to be insti-
tuted any proceeding under or related to 
this chapter, or has testified or is about to 
testify in any such proceeding, or has 
served or is about to serve on an industry 
committee; or 
‘‘(ii) such individual— 
‘‘(I) is required, pursuant to the 
enactment of the Worker Flexibility 
and Small Business Protection Act of 
2020, to be classified as an employee 
of the contractor for purposes of this 
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165 
chapter and not an independent con-
tractor; and 
‘‘(II) was classified by the con-
tractor as an independent contractor 
prior to the date of enactment of the 
Worker Flexibility and Small Business 
Protection Act of 2020. 
‘‘(B) RULES REGARDING UNLAWFUL DIS-
CHARGE OR DISCRIMINATION.— 
‘‘(i) 
PRESUMPTION
OF
RETALIA-
TION.—Any action taken against an indi-
vidual, employed by the contractor or sub-
contractor in the manufacture or fur-
nishing of materials, supplies, articles, or 
equipment under the contract, within 90 
days of the individual taking any action 
described in subparagraph (A)(i), including 
taking any such action with respect to ex-
ercising the right of the individual pursu-
ant 
to 
paragraph 
(5) 
to 
not 
be 
misclassified, shall establish a rebuttable 
presumption that the action is discrimina-
tion against the individual in violation of 
subparagraph (A). 
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166 
‘‘(ii) MOTIVATING FACTOR.—Unlawful 
discharge or other discrimination against 
an employee under subparagraph (A) is es-
tablished when the complaining party dem-
onstrates that one of the actions or the 
classification described in such subpara-
graph was a motivating factor for such dis-
charge or other discrimination, even if 
such discharge or other discrimination was 
also motivated by other factors.’’. 
(5) 
MISCLASSIFICATION
ENFORCEMENT 
THROUGH
RECLASSIFICATION
ORDERS
AND
STOP 
WORK
ORDERS.—Chapter 65 of title 41, United 
States Code, is amended by inserting after section 
6506 the following: 
‘‘§ 6506a. Misclassification enforcement through re-
classification orders and stop work or-
ders 
‘‘(a) RECLASSIFICATION ORDERS.— 
‘‘(1) IN
GENERAL.—If the Secretary deter-
mines, after an investigation under section 6506(e), 
that a contractor of a contract to which this chapter 
applies has misclassified 1 or more individuals who 
are employees of the contractor performing any 
labor, with respect to the manufacture or furnishing 
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167 
of materials, supplies, articles, or equipment, under 
the contract, as not employees of the contractor, in 
violation of section 6502(5)— 
‘‘(A) the Secretary shall issue, not later 
than 24 hours after making such determination, 
an order against the contractor requiring the 
contractor to immediately classify the 1 or more 
individuals as employees of the contractor; and 
‘‘(B) the contractor shall immediately com-
ply with the order issued under subparagraph 
(A) or shall otherwise be in violation of section 
6502(5). 
‘‘(2) ORDERS.—An order issued under para-
graph (1) shall— 
‘‘(A) be effective at the time at which the 
order is served upon the contractor, which may 
be accomplished by the posting of a copy of the 
order in a conspicuous location at the place of 
business of the contractor; and 
‘‘(B) remain in effect during any review 
conducted under paragraph (3) and during any 
hearing and appeal of such order under para-
graph (4). 
‘‘(3) REVIEW FOR RECONSIDERATION.— 
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168 
‘‘(A) IN GENERAL.—A contractor 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. 
‘‘(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— 
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169 
‘‘(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 court of 
jurisdiction as described in section 6507(d). 
‘‘(5) TEMPORARY OR PERMANENT INJUNCTIVE 
RELIEF.—The Secretary may petition a court of ju-
risdiction as described in section 6507(d) for tem-
porary or permanent injunctive relief against any 
contractor that violates an order issued under para-
graph (1). A court shall issue such temporary or 
permanent injunctive relief if the Secretary has dem-
onstrated it is just and proper. 
‘‘(6) SUCCESSFULLY DISPROVING OCCURRENCE 
OF MISCLASSIFICATION.— 
‘‘(A) IN GENERAL.—If contractor with re-
spect to whom an order was issued under para-
graph (1) successfully proves through a review 
under paragraph (3), or a subsequent hearing 
or appeals proceeding under paragraph (4), 
that the 1 or more individuals who were the 
subject of the order were not misclassified in 
violation of section 6502(5)— 
‘‘(i) the order issued under paragraph 
(1) shall cease to be in effect; 
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170 
‘‘(ii) the contractor shall not be liable 
for any applicable back pay, damages, or 
civil penalties owed by the contractor 
under this chapter 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, as applica-
ble, shall award (and the Secretary of the 
Treasury shall, in accordance with sub-
paragraph (B), pay) to the contractor rea-
sonable fees and expenses of attorneys in 
the same manner as such fees and ex-
penses could be awarded under section 
2412 of title 28, United States Code, if the 
contractor 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 
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. 
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171 
‘‘(b) STOP WORK ORDERS.— 
‘‘(1) IN GENERAL.—In any case where a con-
tractor does not comply with a reclassification order 
issued by the Secretary under subsection (a)(1), with 
respect 
to 
or 
more 
individuals 
who 
are 
misclassified in violation of section 6502(5), within 
30 days of being served with the order, the Sec-
retary shall issue— 
‘‘(A) subject to subparagraph (B), an 
order against the contractor requiring the ces-
sation of all business operations of such con-
tractor at the location of the violation; or 
‘‘(B) if an order described in subparagraph 
(A) has been previously issued against the con-
tractor by any Federal, State, or local agency 
for misclassifying an employee performing any 
labor, with respect to the manufacture or fur-
nishing of materials, supplies, articles, or equip-
ment under the contract, as not such an em-
ployee in violation of section 6502(5), or an 
equivalent State or local law as determined by 
the Secretary, an order against the contractor 
requiring the cessation of all business oper-
ations of such contractor at all business loca-
tions of the contractor, including locations other 
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172 
than the location where the misclassification oc-
curred. 
‘‘(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 contractor, 
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 con-
tractor; and 
‘‘(ii) remain in effect— 
‘‘(I) during any review conducted 
under paragraph (3) with respect to 
such order and during any hearing 
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-
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173 
retary issues another order releasing the 
order issued under such subsection upon a 
finding by the Secretary that the con-
tractor— 
‘‘(I) has corrected the violation of 
section 6502(5) 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 back pay, 
damages, and civil penalties owed by 
the contractor under this chapter. 
‘‘(ii) REINSTATEMENT.—If, at any 
time after the Secretary issues a release 
order under clause (i), the contractor 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 contractor is 
in compliance with such terms. 
‘‘(3) REVIEW FOR RECONSIDERATION.— 
‘‘(A) IN GENERAL.—A contractor against 
whom an order is issued under paragraph (1) 
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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. 
‘‘(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 
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‘‘(B) appeal an order of an administrative 
law judge under subparagraph (A) to a court of 
jurisdiction as described in section 6507(d). 
‘‘(5) TEMPORARY OR PERMANENT INJUNCTIVE 
RELIEF.—The Secretary may petition a court of ju-
risdiction as described in section 6507(d) for tem-
porary or permanent injunctive relief against any 
contractor that violates an order issued under para-
graph (1). A court shall issue such temporary or 
permanent injunctive relief if the Secretary has dem-
onstrated it is just and proper. 
‘‘(6) COMPENSATION FOR LOST WORK.— 
‘‘(A) IN
GENERAL.—Subject to subpara-
graph (B), a contractor with respect to whom 
an order is issued under paragraph (1) shall 
pay each employee described in subparagraph 
(C) the compensation 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 
paragraph were not in effect. 
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‘‘(C) APPLICABLE
EMPLOYEES.—An em-
ployee described in this subparagraph is an in-
dividual who— 
‘‘(i) is an employee of a contractor 
against whom an order is issued under 
paragraph (1); 
‘‘(ii) performs labor with respect to 
the manufacture or furnishing of mate-
rials, supplies, articles, or equipment under 
the contract that is subject to the order; 
and 
‘‘(iii) loses compensation due to the 
work of such employee ceasing as a result 
of such order. 
‘‘(7) SUCCESSFULLY DISPROVING OCCURRENCE 
OF MISCLASSIFICATION.— 
‘‘(A) IN GENERAL.—In any case where a 
contractor 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 6502(5)— 
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‘‘(i) the order issued under paragraph 
(1), and any order issued against the con-
tractor under subsection (a)(1) with re-
spect to such 2 or more individuals, shall 
cease to be in effect; 
‘‘(ii) the contractor shall not be liable 
for any applicable back pay, damages, or 
civil penalties owed by the contractor 
under this chapter with respect to the 
misclassification of such 2 or more individ-
uals; and 
‘‘(iii) the Secretary of Labor, adminis-
trative law judge, or court, as applicable, 
shall award (and the Secretary of the 
Treasury shall, in accordance with sub-
paragraph (B), pay) to the contractor— 
‘‘(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 con-
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178 
tractor 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 
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.’’. 
(6) PENALTIES FOR VIOLATIONS OF NEW RE-
QUIREMENTS.—Chapter 65 of title 41, United 
States Code, as amended by paragraph (5), is fur-
ther amended by inserting after section 6506a the 
following: 
‘‘§ 6506b. Penalties; expanded liability 
‘‘(a) MISCLASSIFICATION AND INCORPORATION TO 
FURTHER VIOLATIONS.— 
‘‘(1) IN GENERAL.—A contractor that violates 
paragraph (5), (6), or (7) of section 6502 of this 
title shall be subject to a civil penalty of— 
‘‘(A) subject to subparagraphs (B) and 
(C), $10,000; 
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‘‘(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 contractor for the 
year in which the contractor had the highest 
net profits out of all years in which the con-
tractor was in such violation. 
‘‘(2) REPEATED, OR
WILLFUL, AND
WIDE-
SPREAD VIOLATIONS.—If the violation of paragraph 
(5), (6), or (7) of section 6502 of this title is re-
peated or willful, as described in paragraph (1)(B), 
and is widespread, as described in paragraph (1)(C), 
the higher amount of the amounts described in such 
paragraphs shall apply. 
‘‘(3) PAYMENT OF DAMAGES.—Any penalty as-
sessed under paragraph (1) for a violation of para-
graph (5), (6), or (7) of section 6502 of this title 
shall be paid from an account of the contractor in 
such violation and not paid, or reimbursed, by any 
insurance plan that would indemnify the contractor 
from violations of such paragraph (5), (6), or (7). If 
a contractor receives a payment from an insurance 
plan to indemnify the contractor from a violation of 
such paragraph (5), (6), or (7), the contractor shall 
transfer the payment to the Secretary, in addition to 
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180 
the amount to be paid from the account of the con-
tractor for the penalty. 
‘‘(b) RECLASSIFICATION ORDERS.— 
‘‘(1) CIVIL PENALTIES.—A contractor that vio-
lates a reclassification order issued under section 
6506a(a)(1) shall be subject to a civil penalty in an 
amount not less than $5,000 per day, with each day 
constituting a separate offense. 
‘‘(2) ADDITIONAL DAMAGES.—In any case in 
which a contractor contests a reclassification order 
issued under paragraph (1) of section 6506a(a) in a 
review under paragraph (3) of such section, a hear-
ing under paragraph (4)(A) of such section, and a 
subsequent judicial proceeding under paragraph 
(4)(B) of such section, and the court in such pro-
ceeding rules in favor of the Secretary— 
‘‘(A) the court shall determine if, during 
the period between the issuance of such order 
and the conclusion of the proceeding, the con-
tractor violated such order by not classifying 
the 1 or more individuals as employees during 
that period; and 
‘‘(B) if the court determines the contractor 
so violated the order during that period— 
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181 
‘‘(i) the court shall determine the 
amount of net profits derived by the con-
tractor from the individuals’ labor during 
that period; and 
‘‘(ii) the court shall assess damages in 
the amount determined under clause (i), 
which damages shall be awarded to such 
individuals by the court.’’. 
(7) CONFORMING AMENDMENTS.—The table of 
sections for chapter 65 of title 41, United States 
Code, is amended— 
(A) by inserting after the item relating to 
section 6501 the following: 
‘‘Sec. 6501a. Employee test.’’; 
and 
(B) by inserting after the item relating to 
section 6506 the following: 
‘‘Sec. 6506a. Misclassification enforcement through reclassification orders and 
stop work orders. 
‘‘Sec. 6506b. Penalties; expanded liability.’’. 
(h) FAMILY AND MEDICAL LEAVE ACT OF 1993.— 
(1) MISCLASSIFICATION AS A STANDALONE VIO-
LATION.— 
(A) IN
GENERAL.—Section 105 of the 
Family and Medical Leave Act of 1993 (29 
U.S.C. 2615) is amended by adding at the end 
the following: 
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182 
‘‘(c) MISCLASSIFICATION.—It shall be unlawful for 
any employer to misclassify an eligible employee of the em-
ployer as not an employee of the employer for purposes 
of this title.’’. 
(B) INCORPORATION TO FURTHER VIOLA-
TIONS.—Section 105 of the Family and Medical 
Leave Act of 1993 (29 U.S.C. 2615), as 
amended by subparagraph (A), is further 
amended by adding at the end the following: 
‘‘(d) INCORPORATION TO FURTHER VIOLATIONS.— 
It shall be unlawful for any employer to, for the purpose, 
in whole or in part, of facilitating, or evading detection 
of, a violation of this title, including a violation of sub-
section (c)— 
‘‘(1) incorporate or form, or assist in the incor-
poration or formation of, a corporation, partnership, 
limited liability corporation, or other entity; or 
‘‘(2) pay or collect a fee for use of a foreign or 
domestic corporation, partnership, limited liability 
corporation, or other entity.’’. 
(C) PENALTIES.—Section 107(b) of the 
Family and Medical Leave Act of 1993 (29 
U.S.C. 2617(b)) is amended by adding at the 
end the following: 
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183 
‘‘(4) PENALTIES FOR MISCLASSIFICATION AND 
INCORPORATION TO FURTHER VIOLATIONS.— 
‘‘(A) IN
GENERAL.—Any employer who 
violates subsection (c) or (d) of section 105 
shall be subject 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 
percent of the net profits of the employer 
for the year in which the employer had the 
highest net profits out of all years in which 
the employer was in such violation. 
‘‘(B) REPEATED, OR WILLFUL, AND WIDE-
SPREAD
VIOLATIONS.—If a violation of sub-
section (c) or (d) of section 105 is repeated or 
willful, as described in subparagraph (A)(ii), 
and is widespread, as described in subpara-
graph (A)(iii), the higher penalty of the pen-
alties described in such subparagraphs shall 
apply. 
‘‘(C) PAYMENT OF PENALTIES.—Any pen-
alty assessed under subparagraph (A) for a vio-
lation of subsection (c) or (d) of section 105 
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184 
shall be paid from an account of the employer 
in such violation and not paid, or reimbursed, 
by any insurance plan that would indemnify the 
employer from violations of such subsection (c) 
or (d), respectively. If an employer receives a 
payment from an insurance plan to indemnify 
the employer from a violation of such sub-
section, the employer shall transfer the payment 
to the Secretary, in addition to the amount to 
be paid from the account of the employer for 
the penalty.’’. 
(2) PROTECTION
FROM
RETALIATION
FOR 
BEING AN EMPLOYEE; PRESUMPTION OF RETALIA-
TION.—Section 105(b) of the Family and Medical 
Leave Act of 1993 (29 U.S.C. 2615(b)) is amend-
ed— 
(A) 
by 
redesignating 
paragraphs 
(1) 
through (3) as subparagraphs (A) through (C), 
respectively, and indenting appropriately; 
(B) by striking ‘‘It shall’’ and inserting the 
following: 
‘‘(1) IN GENERAL.—It shall’’; 
(C) in subparagraph (B), as so redesig-
nated, by striking ‘‘; or’’ and inserting a semi-
colon; 
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185 
(D) in subparagraph (C), as so redesig-
nated, by striking the period at the end and in-
serting ‘‘; or’’; and 
(E) by adding at the end the following: 
‘‘(D)(i) is required, pursuant to the enact-
ment of the Worker Flexibility and Small Busi-
ness Protection Act of 2020, to be classified as 
an employee of the person for purposes of this 
title 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. 
‘‘(2) 
RULES
REGARDING
UNLAWFUL
DIS-
CHARGE OR DISCRIMINATION.— 
‘‘(A) PRESUMPTION
OF
RETALIATION.— 
Any action taken against an individual within 
90 days of the individual taking any action de-
scribed in any of subparagraph (A), (B), or (C) 
of paragraph (1), including taking any such ac-
tion with respect to exercising the right of an 
employee pursuant to subsection (c) to not be 
misclassified, shall establish a rebuttable pre-
sumption that the action is discrimination 
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186 
against the individual in violation of paragraph 
(1). 
‘‘(B) MOTIVATING FACTOR.—Unlawful dis-
charge or other discrimination against an em-
ployee under paragraph (1) is established when 
the complaining party demonstrates that one of 
the actions or the classification described in 
such paragraph was a motivating factor for 
such discharge or other discrimination, even if 
such discharge or other discrimination was also 
motivated by other factors.’’. 
(3) 
STATUTORY
EMPLOYERS
IN
HEAVILY 
MISCLASSIFYING
INDUSTRIES.—Section 101(4) of 
the Family and Medical Leave Act of 1993 (29 
U.S.C. 2611(4)) is amended by adding at the end 
the following: 
‘‘(C) STATUTORY EMPLOYERS IN HEAVILY 
MISCLASSIFYING INDUSTRIES.—The term ‘em-
ployer’ shall include any person who— 
‘‘(i) is described in subparagraph 
(A)(i); and 
‘‘(ii) is described in section 3(d)(4) of 
the Fair Labor Standards Act of 1938 (29 
U.S.C. 203(d)(4)).’’. 
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187 
(4) 
MISCLASSIFICATION
ENFORCEMENT 
THROUGH STOP WORK ORDERS.— 
(A) IN GENERAL.—Title I of the Family 
and Medical Leave Act of 1993 (29 U.S.C. 
2611 et seq.) is amended by inserting after sec-
tion 107 (29 U.S.C. 2617) the following: 
‘‘SEC. 107A. MISCLASSIFICATION ENFORCEMENT THROUGH 
RECLASSIFICATION 
ORDERS 
AND 
STOP 
WORK ORDERS. 
‘‘(a) RECLASSIFICATION ORDERS.— 
‘‘(1) IN
GENERAL.—If the Secretary deter-
mines, after an investigation under section 106, that 
an employer has misclassified 1 or more individuals 
who are eligible employees of the employer as not 
employees in violation of section 105(c)— 
‘‘(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 eligible employees of the employer; 
and 
‘‘(B) the employer shall immediately com-
ply with the order issued under subparagraph 
(A) or shall otherwise be in violation of section 
105(c). 
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188 
‘‘(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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189 
‘‘(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 any Fed-
eral or State court of competent jurisdiction. 
‘‘(5) ACTION FOR INJUNCTION.—The Secretary 
may petition any district court of the United States 
to restrain a violation of an order issued under para-
graph (1). A court shall issue such relief if the Sec-
retary has demonstrated it is just and proper. 
‘‘(6) SUCCESSFULLY DISPROVING OCCURRENCE 
OF MISCLASSIFICATION.— 
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190 
‘‘(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 subsequent 
hearing or appeals proceeding under paragraph 
(4), that the 1 or more individuals who were 
the subject of the order were not misclassified 
in violation of section 105(c)— 
‘‘(i) the order issued under paragraph 
(1) shall cease to be in effect; 
‘‘(ii) the employer shall not be liable 
for any applicable back pay, damages, or 
civil penalties owed by the employer under 
this 
title 
with 
respect 
to 
the 
misclassification of such 2 or more individ-
uals; and 
‘‘(iii) the Secretary of Labor, adminis-
trative law judge, or court, as applicable, 
shall award (and the Secretary of the 
Treasury shall, in accordance with sub-
paragraph (B), pay) to the employer rea-
sonable fees and expenses of attorneys in 
the same manner as such fees and ex-
penses could be awarded under section 
2412 of title 28, United States Code, if the 
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191 
employer 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 
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. 
‘‘(b) 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 (a)(1), with 
respect 
to 
or 
more 
individuals 
who 
are 
misclassified in violation of section 105(c), within 30 
days of being served the order, the Secretary 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 
‘‘(B) if an order described in subparagraph 
(A) has been previously issued against the em-
ployer by any Federal, State, or local agency 
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192 
for misclassifying an eligible employee as not an 
employee in violation of section 105(c), 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 
and appeal of such order under para-
graph (4); and 
‘‘(II) until the Secretary issues a 
release order under subparagraph (B). 
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193 
‘‘(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 105(c) 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 back pay, 
damages, and civil penalties owed by 
the employer under this title. 
‘‘(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 
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194 
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. 
‘‘(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. 
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195 
‘‘(4) HEARING 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 any Fed-
eral or State court of competent jurisdiction. 
‘‘(5) ACTION FOR INJUNCTION.—The Secretary 
may petition any district court of the United States 
to restrain a violation of an order issued under para-
graph (1). A court shall issue such relief if the Sec-
retary has demonstrated 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 eligible employee of the employer who 
loses compensation due to the work of such em-
ployee ceasing as a result of such order, the 
compensation that would be owed to such em-
ployee 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 eligible 
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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 
subsequent 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 105(c)— 
‘‘(i) the order issued under paragraph 
(1), and any order issued against the em-
ployer under subsection (a)(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 back pay, damages, or 
civil penalties owed by the employer under 
this 
title 
with 
respect 
to 
the 
misclassification of such 2 or more individ-
uals; and 
‘‘(iii) the Secretary of Labor, adminis-
trative law judge, or court, as applicable, 
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197 
shall award (and the Secretary of the 
Treasury shall, in accordance with sub-
paragraph (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 
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 107(b) of the 
Family and Medical Leave Act of 1993 (29 
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198 
U.S.C. 2617(b)), as amended by paragraph 
(1)(C), is further amended by adding at the end 
the following: 
‘‘(5) PENALTIES FOR VIOLATIONS OF RECLASSI-
FICATION ORDERS.— 
‘‘(A) CIVIL
PENALTIES.—Any employer 
who violates a reclassification order issued by 
the Secretary under section 107A(a)(1) shall be 
subject to a civil penalty 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 
107A(a) in a review under paragraph (3) of 
such section, a hearing under paragraph (4)(A) 
of such section, and a subsequent judicial pro-
ceeding under paragraph (4)(B) of such section, 
and the court in such proceeding rules in favor 
of the Secretary— 
‘‘(i) the court shall determine if, dur-
ing the period between the issuance of such 
order and the conclusion of the proceeding, 
the employer violated such order by not 
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199 
classifying the 1 or more individuals as eli-
gible employees during that period; and 
‘‘(ii) if the court determines the em-
ployer so violated the order during that pe-
riod— 
‘‘(I) the court shall determine the 
amount of net profits derived by the 
employer from the individuals’ labor 
during that period; and 
‘‘(II) the court shall assess dam-
ages in the amount determined under 
subclause (I), which damages shall be 
awarded to such individuals by the 
court.’’. 
(i) FEDERAL UNEMPLOYMENT TAX ACT (FUTA).— 
(1) IN GENERAL.—Section 3306 of the Internal 
Revenue Code of 1986 is amended by adding at the 
end the following new subsection: 
‘‘(w) SPECIAL RULES FOR PURPOSES OF DEFINING 
EMPLOYER AND EMPLOYEE.—In defining employer and 
employee for purposes of this chapter, such definitions 
shall comply with the following: 
‘‘(1) Paragraph (4) of section 3(d) of the Fair 
Labor Standards Act of 1938. 
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pamtmann on DSKBC07HB2PROD with BILLS
200 
‘‘(2) Paragraphs (6), (7), (8), and (9) of section 
3(e) of such Act.’’. 
(2) EFFECTIVE DATE.—The amendments made 
by paragraph (1) shall apply to services rendered on 
or after January 1, 2022. 
TITLE II—SMALL BUSINESS PRO-
TECTION THROUGH SHARED 
RESPONSIBILITY FOR WORK-
ERS’ RIGHTS 
SEC. 201. GENERAL SHARED RESPONSIBILITY FOR WORK-
ERS’ RIGHTS. 
(a) FAIR LABOR STANDARDS ACT OF 1938.—Section 
3(d) of the Fair Labor Standards Act of 1938 (29 U.S.C. 
203(d)), as amended by section 102(a)(6)(A), is further 
amended by adding at the end the following: 
‘‘(5) MULTIPLE EMPLOYERS.— 
‘‘(A) RULE
OF
INTERPRETATION.—This 
paragraph— 
‘‘(i) is to be read as an addition to, 
and an augmentation and expansion of, all 
relevant judicial and agency interpretations 
in existence on the date of enactment of 
the Worker Flexibility and Small Business 
Protection Act of 2020 regarding which 
persons qualify as employers in relation to 
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201 
a given employee under this Act, including 
in a multiple employer or joint employment 
structure; 
‘‘(ii) shall not be interpreted by any 
court or agency as a restriction on, or nar-
rowing of, any such interpretations; and 
‘‘(iii) is not a codification of the com-
mon law and shall not be interpreted to re-
flect, or to be limited or restricted by, com-
mon law interpretations regarding whether 
a person is an employer of a given em-
ployee or whether multiple persons are em-
ployers of a given employee. 
‘‘(B) IN GENERAL.—Two or more persons 
shall be employers with respect to an employee 
if each such person individually, acting directly 
or indirectly, is an employer of the employee, 
based on and in accordance with the meaning 
given the term ‘employer’ under paragraphs 
(1), (2), and (3) of this subsection, the defini-
tion of ‘employee’ under subsection (e), and the 
definition of ‘employ’ under subsection (g). 
‘‘(C) ADDITIONAL
MULTIPLE
EMPLOYER 
DETERMINATIONS.—Notwithstanding subpara-
graph (B), 2 or more persons shall be employ-
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202 
ers, acting directly or indirectly, with respect to 
an employee if— 
‘‘(i) each such person directly or indi-
rectly benefits or seeks to directly or indi-
rectly benefit from the performance of 
labor by an employee; and 
‘‘(ii)(I) each such person exerts actual 
direction or control, directly or indirectly, 
over any material term or condition of em-
ployment 
of 
the 
employee, 
including 
through an intermediary; 
‘‘(II) each such person exerts func-
tional direction or control, directly or indi-
rectly, over any material term or condition 
of employment of the employee, including 
through an intermediary; 
‘‘(III) each such person is legally ca-
pable, without regard as to whether such 
capability is used, of directly or indi-
rectly— 
‘‘(aa) exerting direction or con-
trol over any material term or condi-
tion of employment of the employee; 
‘‘(bb) ensuring compliance with 
the requirements of this Act with re-
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203 
gard to the employee’s performance of 
such labor; or 
‘‘(cc) upholding the rights and 
protections of this Act with regard to 
the employee’s performance of such 
labor; or 
‘‘(IV) based on an act or omission of 
the 2 or more persons, the employee rea-
sonably believed that such persons were 
the employee’s employers and the employee 
did not have actual knowledge that any of 
the persons were not the employee’s em-
ployer under this Act.’’. 
(b) NATIONAL LABOR RELATIONS ACT.—Section 
2(2) of the National Labor Relations Act (29 U.S.C. 
152(2)), as amended by section 102(b)(6)(A), is further 
amended by adding at the end the following: 
‘‘(C) MULTIPLE EMPLOYERS.— 
‘‘(i) RULE
OF
INTERPRETATION.— 
This subparagraph— 
‘‘(I) is to be read as an addition 
to, and an augmentation and expan-
sion of, all relevant judicial and agen-
cy interpretations in existence on the 
date of enactment of the Worker 
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204 
Flexibility and Small Business Protec-
tion Act of 2020 regarding which per-
sons qualify as employers in relation 
to a given employee under this Act, 
including in a multiple employer or 
joint employment structure; 
‘‘(II) shall not be interpreted by 
any court or agency as a restriction 
on, or narrowing of, any such inter-
pretations; and 
‘‘(III) is not a codification of the 
common law and shall not be inter-
preted to reflect, or to be limited or 
restricted by, common law interpreta-
tions regarding whether a person is 
an employer of a given employee or 
whether multiple persons are employ-
ers of a given employee. 
‘‘(ii) IN GENERAL.—Two or more per-
sons shall be employers with respect to an 
employee if each such person individually, 
acting directly or indirectly, is an employer 
of the employee, based on and in accord-
ance with the meanings given the term 
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205 
‘employer’ under subparagraph (A) and 
the term ‘employee’ under paragraph (3). 
‘‘(iii) ADDITIONAL
MULTIPLE
EM-
PLOYER
DETERMINATIONS.—Notwith-
standing clause (ii), 2 or more persons 
shall be employers, acting directly or indi-
rectly, with respect to an employee if— 
‘‘(I) each such person directly or 
indirectly benefits or seeks to directly 
or indirectly benefit from the perform-
ance of labor by an employee; and 
‘‘(II)(aa) each such person exerts 
actual direction or control, directly or 
indirectly, over any material term or 
condition of employment of the em-
ployee, including through an inter-
mediary; 
‘‘(bb) each such person exerts 
functional direction or control, directly 
or indirectly, over any material term 
or condition of employment of the em-
ployee, including through an inter-
mediary; 
‘‘(cc) each such person is legally 
capable, without regard as to whether 
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206 
such capability is used, of directly or 
indirectly— 
‘‘(AA) exerting direction or 
control over any material term or 
condition of employment of the 
employee; 
‘‘(BB) ensuring compliance 
with the requirements of this Act 
with regard to the employee’s 
performance of such labor; or 
‘‘(CC) upholding the rights 
and protections of this Act with 
regard to the employee’s per-
formance of such labor; 
‘‘(dd) based on an act or omis-
sion of the 2 or more persons, the em-
ployee reasonably believed that such 
persons were the employee’s employ-
ers and the employee did not have ac-
tual knowledge that any of the per-
sons were not the employee’s employer 
under this Act; or 
‘‘(ee) based on the totality of the 
circumstances of the industrial reali-
ties, including the way separate per-
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207 
sons have structured their commercial 
relationship, 2 or more persons wield 
sufficient influence over any material 
term or condition of employment of 
the employee such that meaningful 
bargaining could not occur in the ab-
sence of the 2 or more persons.’’. 
(c) OCCUPATIONAL SAFETY AND HEALTH ACT OF 
1970.—Section 3(5) of the Occupational Safety and 
Health Act of 1970 (29 U.S.C. 652(5)), as amended by 
section 102(c)(6)(A), is further amended by adding at the 
end the following: 
‘‘(C) MULTIPLE EMPLOYERS.— 
‘‘(i) RULE
OF
INTERPRETATION.—This 
subparagraph— 
‘‘(I) is to be read as an addition to, 
and an augmentation and expansion of, all 
relevant judicial and agency interpretations 
in existence on the date of enactment of 
the Worker Flexibility and Small Business 
Protection Act of 2020 regarding which 
persons qualify as employers in relation to 
a given employee under this Act, including 
in a multiple employer or joint employment 
structure; 
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208 
‘‘(II) shall not be interpreted by any 
court or agency as a restriction on, or nar-
rowing of, any such interpretations; and 
‘‘(III) is not a codification of the com-
mon law and shall not be interpreted to re-
flect, or to be limited or restricted by, com-
mon law interpretations regarding whether 
a person is an employer of a given em-
ployee or whether multiple persons are em-
ployers of a given employee. 
‘‘(ii) IN GENERAL.—Two or more persons 
shall be employers with respect to an employee 
if each such person individually, acting directly 
or indirectly, is an employer of the employee, 
based on and in accordance with the meaning 
given the term ‘employer’ under subparagraph 
(A) and the definition of ‘employee’ under para-
graph (6). 
‘‘(iii) ADDITIONAL
MULTIPLE
EMPLOYER 
DETERMINATIONS.—Notwithstanding 
clause 
(ii), 2 or more persons shall be employers, act-
ing directly or indirectly, with respect to an em-
ployee if— 
‘‘(I) each such person directly or indi-
rectly benefits or seeks to directly or indi-
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209 
rectly benefit from the performance of 
labor by an employee; and 
‘‘(II)(aa) each such person exerts ac-
tual direction or control, directly or indi-
rectly, over any material term or condition 
of employment of the employee, including 
through an intermediary; 
‘‘(bb) each such person exerts 
functional direction or control, directly 
or indirectly, over any material term 
or condition of employment of the em-
ployee, including through an inter-
mediary; 
‘‘(cc) each such person is legally 
capable, without regard as to whether 
such capability is used, of directly or 
indirectly— 
‘‘(AA) exerting direction or 
control over any material term or 
condition of employment of the 
employee; 
‘‘(BB) ensuring compliance 
with the requirements of this Act 
with regard to the employee’s 
performance of such labor; or 
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210 
‘‘(CC) upholding the rights 
and protections of this Act with 
regard to the employee’s per-
formance of such labor; or 
‘‘(dd) based on an act or omis-
sion of the 2 or more persons, the em-
ployee reasonably believed that such 
persons were the employee’s employ-
ers and the employee did not have ac-
tual knowledge that any of the per-
sons were not the employee’s employer 
under this Act.’’. 
(d) FEDERAL MINE SAFETY AND HEALTH ACT OF 
1977.—The Federal Mine Safety and Health Act of 1977 
(30 U.S.C. 801 et seq.), as amended by paragraphs (1) 
and (2) of section 102(d), is further amended by inserting 
after section 4A the following: 
‘‘SEC. 4B. APPLICABILITY TO MULTIPLE EMPLOYERS AND 
RELATED ENTITIES. 
‘‘(a) MULTIPLE EMPLOYERS.— 
‘‘(1) RULE
OF
INTERPRETATION.—This sub-
section— 
‘‘(A) is to be read as an addition to, and 
an augmentation and expansion of, all relevant 
judicial and agency interpretations in existence 
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pamtmann on DSKBC07HB2PROD with BILLS
211 
on the date of enactment of the Worker Flexi-
bility and Small Business Protection Act of 
2020 regarding which persons qualify as opera-
tors in relation to a given miner under this Act, 
including in a multiple employer or joint em-
ployment structure; 
‘‘(B) shall not be interpreted by any court 
or agency as a restriction on, or narrowing of, 
any such interpretations; and 
‘‘(C) is not a codification of the common 
law and shall not be interpreted to reflect, or to 
be limited or restricted by, common law inter-
pretations regarding whether a person is an em-
ployer of a given miner or whether multiple per-
sons are employers with respect to a given 
miner. 
‘‘(2) IN GENERAL.—Two or more persons shall 
be employers with respect to a miner of a coal or 
other mine if, based on the definitions given the 
terms ‘operator’ and ‘miner’ in section 3, each such 
person individually satisfies the definition of an op-
erator under this Act in relation to a given miner. 
‘‘(3) ADDITIONAL
MULTIPLE
EMPLOYER
DE-
TERMINATIONS.—Notwithstanding paragraph (2), 2 
or more persons shall be employers, acting directly 
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212 
or indirectly, with respect to a miner of a coal or 
other mine if— 
‘‘(A) one of the persons is an operator of 
a coal or other mine and the miner is per-
forming labor for the operator; 
‘‘(B) each such person directly or indi-
rectly benefits or seeks to directly or indirectly 
benefit from the performance of labor by the 
miner; and 
‘‘(C)(i) each such person exerts actual di-
rection or control, directly or indirectly, over 
any material term or condition of employment 
of the miner, including through an inter-
mediary; 
‘‘(ii) each such person exerts functional di-
rection or control, directly or indirectly, over 
any material term or condition of employment 
of the miner, including through an inter-
mediary; 
‘‘(iii) each such person is legally capable, 
without regard as to whether such capability is 
used, of directly or indirectly— 
‘‘(I) exerting direction or control over 
any material term or condition of employ-
ment of the miner; 
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213 
‘‘(II) ensuring compliance with the re-
quirements of this Act with regard to the 
miner’s performance of such labor; or 
‘‘(III) upholding the rights and pro-
tections of this Act with regard to the min-
er’s performance of such labor; or 
‘‘(iv) based on an act or omission of the 2 
or more persons, the miner reasonably believed 
that such persons were the miner’s employers 
and the miner did not have actual knowledge 
that any of the persons were not the miner’s 
employer under this Act.’’. 
(e) MIGRANT AND SEASONAL AGRICULTURAL WORK-
ER PROTECTION ACT.—Section 5 of the Migrant and Sea-
sonal Agricultural Worker Protection Act (29 U.S.C. 
1803), as redesignated by section 102(e)(1)(A), is further 
amended by adding at the end the following: 
‘‘(c) EXPANDED APPLICABILITY.— 
‘‘(1) RESPONSIBILITY OF AGRICULTURAL EM-
PLOYERS
AND
AGRICULTURAL
ASSOCIATIONS
FOR 
WORKERS OF FARM LABOR CONTRACTORS.—In any 
case where an agricultural employer or an agricul-
tural association has entered into an agreement with 
a farm labor contractor to provide migrant agricul-
tural workers or seasonal agricultural workers to the 
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214 
employer or association, both the agricultural em-
ployer or association and the farm labor contractor 
shall be responsible for the rights and protections of 
this Act with regard to the migrant agricultural 
worker or seasonal agricultural worker, as the case 
may be, in any case where the farm labor contractor 
is responsible for the rights and protections of this 
Act. 
‘‘(2) MULTIPLE EMPLOYERS.— 
‘‘(A) RULE
OF
INTERPRETATION.—This 
paragraph— 
‘‘(i) is to be read as an addition to, 
and an augmentation and expansion of, all 
relevant judicial and agency interpretations 
in existence on the date of enactment of 
the Worker Flexibility and Small Business 
Protection Act of 2020 regarding which 
persons qualify as agricultural employers, 
agricultural associations, or farm labor 
contractors in relation to a given employee 
under this Act, including in a multiple em-
ployer or joint employment structure; 
‘‘(ii) shall not be interpreted by any 
court or agency as a restriction on, or nar-
rowing of, any such interpretations; and 
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pamtmann on DSKBC07HB2PROD with BILLS
215 
‘‘(iii) is not a codification of the com-
mon law and shall not be interpreted to re-
flect, or to be limited or restricted by, com-
mon law interpretations regarding whether 
a person is an employer of a given migrant 
agricultural worker or seasonal agricultural 
worker or whether multiple persons are 
employers of a given worker. 
‘‘(B) IN GENERAL.—Two or more persons, 
acting directly or indirectly, shall be responsible 
for the rights and protections of this Act with 
respect to a migrant agricultural worker or sea-
sonal agricultural worker, if based on the appli-
cation of the definitions of ‘agricultural associa-
tion’, ‘agricultural employer’, ‘agricultural em-
ployment’, ‘employ’, ‘farm labor contractor’, 
‘migrant agricultural worker’, and ‘seasonal ag-
ricultural worker’ under section 3, each such 
person individually satisfies the definition of a 
farm labor contractor, agricultural employer, or 
agricultural association under this Act in rela-
tion to a given migrant agricultural worker or 
seasonal agricultural worker. 
‘‘(C) ADDITIONAL
MULTIPLE
EMPLOYER 
DETERMINATIONS.—Notwithstanding subpara-
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pamtmann on DSKBC07HB2PROD with BILLS
216 
graph (B), 2 or more persons, acting directly or 
indirectly, shall be responsible for the rights 
and protections of this Act with respect to a mi-
grant agricultural worker or seasonal agricul-
tural worker if— 
‘‘(i) one of the persons is a farm labor 
contractor, agricultural employer, or agri-
cultural association and the migrant agri-
cultural worker or seasonal agricultural 
worker is performing labor for such per-
son; 
‘‘(ii) each such person directly or indi-
rectly benefits or seeks to directly or indi-
rectly benefit from the performance of 
labor by the worker; and 
‘‘(iii)(I) each such person exerts ac-
tual direction or control, directly or indi-
rectly, over any material term or condition 
of employment of the worker, including 
through an intermediary; 
‘‘(II) each such person exerts func-
tional direction or control, directly or indi-
rectly, over any material term or condition 
of employment of the worker, including 
through an intermediary; 
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‘‘(III) each such person is legally ca-
pable, without regard as to whether such 
capability is used, of directly or indi-
rectly— 
‘‘(aa) exerting direction or con-
trol over any material term or condi-
tion of employment of the worker; 
‘‘(bb) ensuring compliance with 
the requirements of this Act with re-
gard to the worker’s performance of 
such labor; or 
‘‘(cc) upholding the rights and 
protections of this Act with regard to 
the worker’s performance of such 
labor; or 
‘‘(IV) based on an act or omission of 
the 2 or more persons, the worker reason-
ably believed that each such person was a 
farm labor contractor, agricultural em-
ployer, or agricultural association that em-
ployed the worker and the worker did not 
have actual knowledge that any of the per-
sons were not the worker’s employer for 
purposes of this this Act. 
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218 
‘‘(3) INTERACTION WITH REGISTRATION REQUIRE-
MENTS.—Notwithstanding paragraph (2), an agricultural 
employer or agricultural association shall not be subject 
to liability for any violation of title I by a farm labor con-
tractor.’’. 
(f) DAVIS-BACON ACT.—Subchapter IV of chapter 31 
of title 40, United States Code, as amended by section 
102(f)(5), is further amended by inserting after section 
3144a the following: 
‘‘§ 3144b. Applicability to multiple employers and re-
lated entities 
‘‘(a) MULTIPLE EMPLOYERS.— 
‘‘(1) RULE
OF
INTERPRETATION.—This sub-
section— 
‘‘(A) is to be read as an addition to, and 
an augmentation and expansion of, all relevant 
judicial and agency interpretations in existence 
on the date of enactment of the Worker Flexi-
bility and Small Business Protection Act of 
2020 regarding which persons qualify as em-
ployers in relation to a given laborer or me-
chanic under this subchapter, including in a 
multiple employer or joint employment struc-
ture; 
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219 
‘‘(B) shall not be interpreted by any court 
or agency as a restriction on, or narrowing of, 
any such interpretations; and 
‘‘(C) is not a codification of the common 
law and shall not be interpreted to reflect, or to 
be limited or restricted by, common law inter-
pretations regarding whether a person is an em-
ployer of a given laborer or mechanic or wheth-
er multiple persons are employers of a laborer 
or mechanic. 
‘‘(2) ADDITIONAL
MULTIPLE
EMPLOYER
DE-
TERMINATIONS.—Two or more persons, acting di-
rectly or indirectly, shall be responsible for the 
rights and protections of this subchapter with re-
spect to a laborer or mechanic if— 
‘‘(A) one of the persons is a contractor, or 
subcontractor, for a contract to which this sub-
chapter applies and the laborer or mechanic is 
performing labor under such contract; 
‘‘(B) each such person directly or indi-
rectly benefits or seeks to directly or indirectly 
benefit from the performance of labor by the la-
borer or mechanic; and 
‘‘(C)(i) each such person exerts actual di-
rection or control, directly or indirectly, over 
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220 
any material term or condition of employment 
of the laborer or mechanic, including through 
an intermediary; 
‘‘(ii) each such person exerts functional di-
rection or control, directly or indirectly, over 
any material term or condition of employment 
of the laborer or mechanic, including through 
an intermediary; 
‘‘(iii) each such person is legally capable, 
without regard as to whether such capability is 
used, of directly or indirectly— 
‘‘(I) exerting direction or control over 
any material term or condition of employ-
ment of the laborer or mechanic; 
‘‘(II) ensuring compliance with the re-
quirements of this subchapter with regard 
to the laborer or mechanic’s performance 
of such labor; or 
‘‘(III) upholding the rights and pro-
tections of this subchapter with regard to 
the laborer or mechanic’s performance of 
such labor; or 
‘‘(iv) based on an act or omission of the 2 
or more persons, the laborer or mechanic rea-
sonably believed that such persons were the la-
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221 
borer or mechanic’s employers and the laborer 
or mechanic did not have actual knowledge that 
any of the persons were not the laborer or me-
chanic’s employer under this subchapter.’’. 
(g) MCNAMARA-O’HARA SERVICE CONTRACT ACT.— 
Chapter 67 of title 41, United States Code, is amended 
by inserting after section 6701 the following: 
‘‘§ 6701a. Applicability to multiple employers and re-
lated entities 
‘‘(a) MULTIPLE EMPLOYERS.— 
‘‘(1) RULE
OF
INTERPRETATION.—This sub-
section— 
‘‘(A) is to be read as an addition to, and 
an augmentation and expansion of, all relevant 
judicial and agency interpretations in existence 
on the date of enactment of the Worker Flexi-
bility and Small Business Protection Act of 
2020 regarding which persons qualify as em-
ployers in relation to a given service employee 
under this chapter, including in a multiple em-
ployer or joint employment structure; 
‘‘(B) shall not be interpreted by any court 
or agency as a restriction on, or narrowing of, 
any such interpretations; and 
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222 
‘‘(C) is not a codification of the common 
law and shall not be interpreted to reflect, or to 
be limited or restricted by, common law inter-
pretations regarding whether a person is an em-
ployer of a given service employee or whether 
multiple persons are employers of a service em-
ployee. 
‘‘(2) ADDITIONAL
MULTIPLE
EMPLOYER
DE-
TERMINATIONS.—Two or more persons, acting di-
rectly or indirectly, shall be responsible for the 
rights and protections of this chapter with respect to 
a service employee if— 
‘‘(A) one of the persons is a contractor, or 
subcontractor, for a contract to which this 
chapter applies and the service employee is per-
forming labor under such contract; 
‘‘(B) each such person directly or indi-
rectly benefits or seeks to directly or indirectly 
benefit from the performance of labor by the 
service employee; and 
‘‘(C)(i) each such person exerts actual di-
rection or control, directly or indirectly, over 
any material term or condition of employment 
of the service employee, including through an 
intermediary; 
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223 
‘‘(ii) each such person exerts functional di-
rection or control, directly or indirectly, over 
any material term or condition of employment 
of the service employee, including through an 
intermediary; 
‘‘(iii) each such person is legally capable, 
without regard as to whether such capability is 
used, of directly or indirectly— 
‘‘(I) exerting direction or control over 
any material term or condition of employ-
ment of the service employee; 
‘‘(II) ensuring compliance with the re-
quirements of this chapter with regard to 
the service employee’s performance of such 
labor; or 
‘‘(III) upholding the rights and pro-
tections of this chapter with regard to the 
service employee’s performance of such 
labor; or 
‘‘(iv) based on an act or omission of the 2 
or more persons, the service employee reason-
ably believed that such persons were the service 
employee’s employers and the service employee 
did not have actual knowledge that any of the 
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224 
persons were not the service employee’s em-
ployer under this chapter.’’. 
(h) WALSH-HEALEY PUBLIC CONTRACTS ACT.— 
Chapter 65 of title 41, United States Code, is amended 
by inserting after section 6501a the following: 
‘‘§ 6501b. Applicability to multiple employers and re-
lated entities 
‘‘(a) MULTIPLE EMPLOYERS.— 
‘‘(1) RULE
OF
INTERPRETATION.—This sub-
section— 
‘‘(A) is to be read as an addition to, and 
an augmentation and expansion of, all relevant 
judicial and agency interpretations in existence 
on the date of enactment of the Worker Flexi-
bility and Small Business Protection Act of 
2020 regarding which persons qualify as em-
ployers in relation to a given individual per-
forming labor in the manufacture or furnishing 
of materials, supplies, articles, or equipment 
under a contract subject to this chapter, includ-
ing in a multiple employer or joint employment 
structure; 
‘‘(B) shall not be interpreted by any court 
or agency as a restriction on, or narrowing of, 
any such interpretations; and 
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225 
‘‘(C) is not a codification of the common 
law and shall not be interpreted to reflect, or to 
be limited or restricted by, common law inter-
pretations regarding whether a person is an em-
ployer of an individual described in subpara-
graph (A) or whether multiple persons are em-
ployers of such individual. 
‘‘(2) ADDITIONAL
MULTIPLE
EMPLOYER
DE-
TERMINATIONS.—Two or more persons, acting di-
rectly or indirectly, shall be responsible for the 
rights and protections of this chapter with respect to 
an individual if— 
‘‘(A) one of the persons is a contractor for 
a contract to which this chapter applies and the 
individual is performing labor in the manufac-
ture or furnishing of materials, supplies, arti-
cles, or equipment under the contract; 
‘‘(B) each such person directly or indi-
rectly benefits or seeks to directly or indirectly 
benefit from such performance of labor by the 
individual; and 
‘‘(C)(i) each such person exerts actual di-
rection or control, directly or indirectly, over 
any material term or condition of employment 
of the individual; 
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226 
‘‘(ii) each such person exerts functional di-
rection or control, directly or indirectly, over 
any material term or condition of employment 
of the individual, including through an inter-
mediary; 
‘‘(iii) each such person is legally capable, 
without regard as to whether such capability is 
used, of directly or indirectly— 
‘‘(I) exerting direction or control over 
any material term or condition of employ-
ment of the individual; 
‘‘(II) ensuring compliance with the re-
quirements of this chapter with regard to 
the individual’s performance of such labor; 
or 
‘‘(III) upholding the rights and pro-
tections of this chapter with regard to the 
individual’s performance of such labor; or 
‘‘(iv) based on an act or omission of the 2 
or more persons, the individual reasonably be-
lieved that such persons were the individual’s 
employers and the individual did not have ac-
tual knowledge that any of the persons were not 
the individual’s employer under this chapter.’’. 
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227 
(i) FAMILY AND MEDICAL LEAVE ACT OF 1993.— 
Section 101(4) of the Family and Medical Leave Act of 
1993 (29 U.S.C. 2611(4)), as amended by section 
102(h)(3), is further amended by adding at the end the 
following: 
‘‘(D) MULTIPLE EMPLOYERS.— 
‘‘(i) RULE
OF
INTERPRETATION.— 
This subparagraph— 
‘‘(I) is to be read as an addition 
to, and an augmentation and expan-
sion of, all relevant judicial and agen-
cy interpretations in existence on the 
date of enactment of the Worker 
Flexibility and Small Business Protec-
tion Act of 2020 regarding which per-
sons qualify as employers in relation 
to a given employee under this Act, 
including in a multiple employer or 
joint employment structure; 
‘‘(II) shall not be interpreted by 
any court or agency as a restriction 
on, or narrowing of, any such inter-
pretations; and 
‘‘(III) is not a codification of the 
common law and shall not be inter-
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228 
preted to reflect, or to be limited or 
restricted by, common law interpreta-
tions regarding whether a person is 
an employer of a given employee or 
whether multiple persons are employ-
ers of a given employee. 
‘‘(ii) IN GENERAL.—Two or more per-
sons shall be employers with respect to an 
employee if each such person individually, 
acting directly or indirectly, is an em-
ployer, based on and in accordance with 
the meaning given the term ‘employer’ 
under subparagraphs (A) and (B) of this 
paragraph, and the definitions of ‘employ’ 
and ‘employee’ under paragraph (3). 
‘‘(iii) ADDITIONAL
MULTIPLE
EM-
PLOYER
DETERMINATIONS.—Notwith-
standing clause (ii), 2 or more persons 
shall be employers, acting directly or indi-
rectly, with respect to an employee if— 
‘‘(I) each such person directly or 
indirectly benefits or seeks to directly 
or indirectly benefit from the perform-
ance of labor by an employee; and 
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229 
‘‘(II)(aa) each such person exerts 
actual direction or control, directly or 
indirectly, over any material term or 
condition of employment of the em-
ployee, including through an inter-
mediary; 
‘‘(bb) each such person exerts 
functional direction or control, directly 
or indirectly, over any material term 
or condition of employment of the em-
ployee, including through an inter-
mediary; 
‘‘(cc) each such person is legally 
capable, without regard as to whether 
such capability is used, of directly or 
indirectly— 
‘‘(AA) exerting direction or 
control over any material term or 
condition of employment of the 
employee; 
‘‘(BB) ensuring compliance 
with the requirements of this Act 
with regard to the employee; or 
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230 
‘‘(CC) upholding the rights 
and protections of this Act with 
regard to the employee; or 
‘‘(dd) based on an act or omis-
sion of the 2 or more persons, the em-
ployee reasonably believed that such 
persons were the employee’s employ-
ers and the employee did not have ac-
tual knowledge that any of the per-
sons were not the employee’s employer 
under this Act.’’. 
(j) FEDERAL UNEMPLOYMENT TAX ACT (FUTA).— 
(1) IN GENERAL.—Section 3306(w) of the In-
ternal Revenue Code of 1986, as added by section 
102(j), is amended by adding at the end the fol-
lowing new paragraph: 
‘‘(3) Paragraph (5) of section 3(d) of such 
Act.’’. 
(2) EFFECTIVE DATE.—The amendment made 
by paragraph (1) shall apply to services rendered on 
or after January 1, 2022. 
SEC. 202. MASSIVE CORPORATIONS. 
(a) JOINT RESPONSIBILITY FOR ALL CORPORATE 
FAMILY EMPLOYEES.— 
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231 
(1) FAIR LABOR STANDARDS ACT OF 1938.— 
Section 3(d) of the Fair Labor Standards Act of 
1938 (29 U.S.C. 203(d)), as amended by section 
201(a), is further amended by adding at the end the 
following: 
‘‘(6) SUBSIDIARIES.—An employer shall also be 
responsible for the rights and protections of this Act 
with regard to an employee of a subsidiary of the 
employer, or subsidiary under a subsidiary, in any 
case where the subsidiary is responsible for the 
rights and protections of this Act for the employee.’’. 
(2) NATIONAL
LABOR
RELATIONS
ACT.—Sec-
tion 2(2) of the National Labor Relations Act (29 
U.S.C. 152(2)), as amended by section 201(b), is 
further amended by adding at the end the following: 
‘‘(D) SUBSIDIARIES.—An employer shall also be 
responsible for the rights and protections of this Act 
with regard to an employee of a subsidiary of the 
employer, or subsidiary under a subsidiary, in any 
case where the subsidiary is responsible for the 
rights and protections of this Act for the employee.’’. 
(3) OCCUPATIONAL SAFETY AND HEALTH ACT 
OF 1970.—Section 3(5) of the Occupational Safety 
and Health Act of 1970 (29 U.S.C. 652(5)), as 
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pamtmann on DSKBC07HB2PROD with BILLS
232 
amended by section 201(c), is further amended by 
adding at the end the following: 
‘‘(E) SUBSIDIARIES.—An employer shall 
also be responsible for the rights and protec-
tions of this Act with regard to an employee of 
a subsidiary of the employer, or subsidiary 
under a subsidiary, in any case where the sub-
sidiary is responsible for the rights and protec-
tions of this Act for the employee.’’. 
(4) FEDERAL MINE SAFETY AND HEALTH ACT 
OF 1977.—Section 4B of the Federal Mine Safety 
and Health Act of 1977, as added by section 201(d), 
is further amended by adding at the end the fol-
lowing: 
‘‘(b) SUBSIDIARIES.—An employer shall also be re-
sponsible for the rights and protections of this Act with 
regard to a miner of a coal or other mine who is an em-
ployee of a subsidiary of the employer, or subsidiary under 
a subsidiary, in any case where the subsidiary is respon-
sible for the rights and protections of this Act for the 
miner.’’. 
(5) MIGRANT
AND
SEASONAL
AGRICULTURAL 
WORKER PROTECTION ACT.—Section 5(c) of the Mi-
grant and Seasonal Agricultural Worker Protection 
Act (29 U.S.C. 1803(c)), as added by section 
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pamtmann on DSKBC07HB2PROD with BILLS
233 
201(e), is further amended by adding at the end the 
following: 
‘‘(4) SUBSIDIARIES.—An entity shall also be re-
sponsible for the rights and protections of this Act 
with regard to an individual who is a migrant agri-
cultural worker or seasonal agricultural worker em-
ployed by a farm labor contractor, agricultural em-
ployer, or agricultural association, that is a sub-
sidiary of the entity, or a subsidiary under such a 
subsidiary, in any case where the subsidiary is re-
sponsible for the rights and protections of this Act 
for the migrant agricultural worker or seasonal agri-
cultural worker.’’. 
(6) DAVIS-BACON ACT.—Section 3144b of title 
40, United States Code, as added by section 201(f), 
is further amended by adding at the end the fol-
lowing: 
‘‘(b) SUBSIDIARIES.—An entity shall also be respon-
sible for the rights and protections of this subchapter with 
regard to a laborer or mechanic employed by a contractor 
or any subcontractor that is a subsidiary of the entity, 
or a subsidiary under such a subsidiary, in any case where 
the subsidiary is responsible for the rights and protections 
of this subchapter for the laborer or mechanic.’’. 
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234 
(7) MCNAMARA-O’HARA
SERVICE
CONTRACT 
ACT.—Section 6701a of title 41, United States 
Code, as added by section 201(g), is further amend-
ed by adding at the end the following: 
‘‘(b) SUBSIDIARIES.—An entity shall also be respon-
sible for the rights and protections of this chapter with 
regard to a service employee of a contractor that is a sub-
sidiary of the entity, or a subsidiary under such a sub-
sidiary, in any case where the subsidiary is responsible for 
the rights and protections of this chapter for the service 
employee.’’. 
(8) WALSH-HEALEY PUBLIC CONTRACTS ACT.— 
Section 6501b of title 41, United States Code, as 
added by section 201(h), is further amended by add-
ing at the end the following: 
‘‘(b) SUBSIDIARIES.—An entity shall also be respon-
sible for the rights and protections of this chapter with 
regard to an individual employed by a contractor that is 
a subsidiary of the entity, or a subsidiary under such a 
subsidiary, in any case where the subsidiary is responsible 
for the rights and protections of this chapter for the indi-
vidual.’’. 
(9) FAMILY
AND
MEDICAL
LEAVE
ACT
OF 
1993.—Section 101(4) of the Family and Medical 
Leave Act of 1993 (20 U.S.C. 2611(4)), as amended 
VerDate Sep 11 2014 
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235 
by section 201(i), is further amended by adding at 
the end the following: 
‘‘(E) SUBSIDIARIES.—An employer shall 
also be responsible for the rights and protec-
tions of this Act with regard to an employee of 
a subsidiary of the employer, or subsidiary 
under a subsidiary, in any case where the sub-
sidiary is responsible for the rights and protec-
tions of this Act for the employee.’’. 
(10) FEDERAL
UNEMPLOYMENT
TAX
ACT 
(FUTA).— 
(A) IN GENERAL.—Section 3306(w) of the 
Internal Revenue Code of 1986, as amended by 
section 201(j), is amended by adding at the end 
the following new paragraph: 
‘‘(4) Paragraph (6) of section 3(d) of such 
Act.’’. 
(B) EFFECTIVE
DATE.—The amendment 
made by subparagraph (A) shall apply to serv-
ices rendered on or after January 1, 2022. 
(b) JOINT RESPONSIBILITY AS OWNERS, DIRECTORS, 
OFFICERS, AND MANAGING AGENTS.— 
(1) FAIR LABOR STANDARDS ACT OF 1938.— 
Section 16 of the Fair Labor Standards Act of 1938 
(29 
U.S.C. 
216), 
as 
amended 
by 
section 
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236 
102(a)(8)(C), is further amended by adding at the 
end the following: 
‘‘(g) OWNERS, DIRECTORS, OFFICERS, AND MAN-
AGING AGENTS.— 
‘‘(1) IN GENERAL.—In any action or proceeding 
for a violation of this Act, the Secretary or court 
may also assess a civil penalty for such violation 
against an owner, director, officer, or managing 
agent of the employer if the Secretary or court de-
termines, based on the particular facts and cir-
cumstances presented, that personal liability for the 
violation is warranted because the owner, director, 
officer, or managing agent— 
‘‘(A) directed or committed the violation; 
‘‘(B) established a policy that led to such 
a violation; or 
‘‘(C) had actual or constructive knowledge 
of the violation, had the authority to prevent 
the violation, and failed to prevent the violation. 
‘‘(2) AMOUNT OF CIVIL PENALTY.—The amount 
of, or range for, a civil penalty for a violation under 
paragraph (1) shall, in any case where a similar civil 
penalty against the employer is established by law, 
be the amount or range for the civil penalty that 
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237 
may be assessed against the employer for such viola-
tion.’’. 
(2) NATIONAL
LABOR
RELATIONS
ACT.—Sec-
tion 12 of the National Labor Relations Act (29 
U.S.C. 162), as amended by section 102(b)(7)(B), is 
further amended by adding at the end the following: 
‘‘(e) OWNERS, DIRECTORS, OFFICERS, AND MAN-
AGING AGENTS.— 
‘‘(1) IN GENERAL.—In any action or proceeding 
for a violation of this Act, the Board or court may 
also assess a civil penalty for such violation against 
an owner, director, officer, or managing agent of the 
employer if the Board or court determines, based on 
the particular facts and circumstances presented, 
that personal liability for the violation is warranted 
because the owner, director, officer, or managing 
agent— 
‘‘(A) directed or committed the violation; 
‘‘(B) established a policy that led to such 
a violation; or 
‘‘(C) had actual or constructive knowledge 
of the violation, had the authority to prevent 
the violation, and failed to prevent the violation. 
‘‘(2) AMOUNT OF CIVIL PENALTY.—The amount 
of, or range for, a civil penalty for a violation under 
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238 
paragraph (1) shall, in any case where a similar civil 
penalty against the employer is established by law, 
be the amount or range for the civil penalty that 
may be assessed against the employer for such viola-
tion.’’. 
(3) OCCUPATIONAL SAFETY AND HEALTH ACT 
OF 1970.—Section 17 of the Occupational Safety 
and Health Act of 1970 (29 U.S.C. 666), as amend-
ed by section 102(c)(7)(B), is amended by inserting 
after subsection (k) the following: 
‘‘(m) OWNERS, DIRECTORS, OFFICERS, AND MAN-
AGING AGENTS.— 
‘‘(1) IN GENERAL.—In any action or proceeding 
for a violation of this Act, including any standard, 
rule, regulation, or order promulgated pursuant to 
this Act, the Secretary or court may also assess a 
civil penalty for such violation against an owner, di-
rector, officer, or managing agent of the employer if 
the Secretary or court determines, based on the par-
ticular facts and circumstances presented, that per-
sonal liability for the violation is warranted because 
the owner, director, officer, or managing agent— 
‘‘(A) directed or committed the violation; 
‘‘(B) established a policy that led to such 
a violation; or 
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‘‘(C) had actual or constructive knowledge 
of the violation, had the authority to prevent 
the violation, and failed to prevent the violation. 
‘‘(2) AMOUNT OF CIVIL PENALTY.—The amount 
of, or range for, a civil penalty for a violation under 
paragraph (1) shall, in any case where a similar civil 
penalty against the employer is established by law, 
be the amount or range for the civil penalty that 
may be assessed against the employer for such viola-
tion.’’. 
(4) FEDERAL MINE SAFETY AND HEALTH ACT 
OF 1977.— 
(A) IN GENERAL.—Title I of the Federal 
Mine Safety and Health Act of 1977 (30 
U.S.C. 820), as amended by section 102(d), is 
further amended by adding at the end the fol-
lowing: 
‘‘SEC. 118. LIABILITY OF OWNERS, DIRECTORS, OFFICERS, 
MANAGING 
AGENTS, 
AND 
LARGE 
SHARE-
HOLDERS; INDEMNIFICATION. 
‘‘(a) OWNERS, DIRECTORS, OFFICERS, AND MAN-
AGING AGENTS.— 
‘‘(1) IN GENERAL.—In any action or proceeding 
for a violation of this Act including any mandatory 
health or safety standard, rule, order, or regulation 
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promulgated pursuant to this Act, the Secretary or 
court may also assess a civil penalty against an 
owner, director, officer, or managing agent of the 
operator or employer if the Secretary or court deter-
mines, based on the particular facts and cir-
cumstances presented, that personal liability for the 
violation is warranted because the owner, director, 
officer, or managing agent— 
‘‘(A) directed or committed the violation; 
‘‘(B) established a policy that led to such 
a violation; or 
‘‘(C) had actual or constructive knowledge 
of the violation, had the authority to prevent 
the violation, and failed to prevent the violation. 
‘‘(2) AMOUNT OF CIVIL PENALTY.—The amount 
of, or range for, a civil penalty for a violation under 
paragraph (1) shall, in any case where a similar civil 
penalty against the employer is established by law, 
be the amount or range for the civil penalty that 
may be assessed against the employer for such viola-
tion.’’. 
(5) MIGRANT
AND
SEASONAL
AGRICULTURAL 
WORKER PROTECTION ACT.—Title V of the Migrant 
and Seasonal Agricultural Worker Protection Act 
(29 U.S.C. 1851 et seq.), as amended by section 
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241 
102(e)(5)(A), is further amended by inserting after 
section 504 the following: 
‘‘SEC. 505. LIABILITY OF OWNERS, DIRECTORS, OFFICERS, 
MANAGING 
AGENTS, 
AND 
LARGE 
SHARE-
HOLDERS; INDEMNIFICATION. 
‘‘(a) CIVIL PENALTY LIABILITY FOR OWNERS, DI-
RECTORS, OFFICERS, AND MANAGING AGENTS OF FARM 
LABOR CONTRACTORS, AGRICULTURAL EMPLOYERS, OR 
AGRICULTURAL ASSOCIATIONS.— 
‘‘(1) IN GENERAL.—In any action or proceeding 
for a violation of this Act, including any regulation 
under this Act, by a farm labor contractor, agricul-
tural employer, or agricultural association, the Sec-
retary or court may also assess a civil penalty for 
such violation against an owner, director, officer, or 
managing agent of the farm labor contractor, agri-
cultural employer, or agricultural association if the 
Secretary or court determines, based on the par-
ticular facts and circumstances presented, that per-
sonal liability for the violation is warranted because 
the owner, director, officer, or managing agent— 
‘‘(A) directed or committed the violation; 
‘‘(B) established a policy that led to such 
a violation; or 
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‘‘(C) had actual or constructive knowledge 
of the violation, had the authority to prevent 
the violation, and failed to prevent the violation. 
‘‘(2) AMOUNT OF CIVIL PENALTY.—The amount 
of, or range for, a civil penalty for a violation under 
paragraph (1) shall, in any case where a similar civil 
penalty against the employer is established by law, 
be the amount or range for the civil penalty that 
may be assessed against the employer for such viola-
tion.’’. 
(6) DAVIS-BACON ACT.—Section 3144c of title 
40, United States Code, as amended by section 
102(f)(6), is further amended by adding at the end 
the following: 
‘‘(d) CIVIL PENALTY LIABILITY FOR OWNERS, DI-
RECTORS, OFFICERS, AND MANAGING AGENTS.— 
‘‘(1) IN GENERAL.—In any action or proceeding 
for a violation of this subchapter, the Secretary of 
Labor or court may also assess a civil penalty for 
such violation against an owner, director, officer, or 
managing agent of the contractor or subcontractor if 
the Secretary or court determines, based on the par-
ticular facts and circumstances presented, that per-
sonal liability for the violation is warranted because 
the owner, director, officer, or managing agent— 
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‘‘(A) directed or committed the violation; 
‘‘(B) established a policy that led to such 
a violation; or 
‘‘(C) had actual or constructive knowledge 
of the violation, had the authority to prevent 
the violation, and failed to prevent the violation. 
‘‘(2) AMOUNT OF CIVIL PENALTY.—The amount 
of, or range for, a civil penalty for a violation under 
paragraph (1) shall, in any case where a similar civil 
penalty against the employer is established by law, 
be the amount or range for the civil penalty that 
may be assessed against the contractor or subcon-
tractor for such violation.’’. 
(7) MCNAMARA-O’HARA
SERVICE
CONTRACT 
ACT.—Chapter 67 of title 41, United States Code, is 
amended— 
(A) by redesignating sections 6705, 6706, 
and 6707 as sections 6706, 6708, and 6709, re-
spectively; and 
(B) by inserting after section 6706 the fol-
lowing: 
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244 
‘‘§ 6707. Civil penalties assessed against owners, di-
rectors, officers, managing agents, and 
large shareholders; indemnification 
‘‘(a) CIVIL PENALTY LIABILITY FOR OWNERS, DI-
RECTORS, OFFICERS, AND MANAGING AGENTS.— 
‘‘(1) IN GENERAL.—In any action or proceeding 
for a violation of this chapter, the Secretary or court 
may also assess a civil penalty for such violation 
against an owner, director, officer, or managing 
agent of the contractor if the Secretary or court de-
termines, based on the particular facts and cir-
cumstances presented, that personal liability for the 
violation is warranted because the owner, director, 
officer, or managing agent— 
‘‘(A) directed or committed the violation; 
‘‘(B) established a policy that led to such 
a violation; or 
‘‘(C) had actual or constructive knowledge 
of the violation, had the authority to prevent 
the violation, and failed to prevent the violation. 
‘‘(2) AMOUNT OF CIVIL PENALTY.—The amount 
of, or range for, a civil penalty for a violation under 
paragraph (1) shall, in any case where a similar civil 
penalty against the employer is established by law, 
be the amount or range for the civil penalty that 
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may be assessed against the contractor for such vio-
lation.’’. 
(8) WALSH-HEALEY PUBLIC CONTRACTS ACT.— 
Section 6506b of title 41, United States Code, as 
amended by section 102(g)(6), is further amended 
by adding at the end the following: 
‘‘(d) CIVIL PENALTIES ASSESSED AGAINST OWNERS, 
DIRECTORS, OFFICERS, MANAGING AGENTS, AND LARGE 
SHAREHOLDERS.— 
‘‘(1) IN GENERAL.—In any action or proceeding 
for a violation of this chapter, the Secretary or court 
may also assess a civil penalty for such violation 
against an owner, director, officer, or managing 
agent of the contractor if the Secretary or court de-
termines, based on the particular facts and cir-
cumstances presented, that personal liability for the 
violation is warranted because the owner, director, 
officer, or managing agent— 
‘‘(A) directed or committed the violation; 
‘‘(B) established a policy that led to such 
a violation; or 
‘‘(C) had actual or constructive knowledge 
of the violation, had the authority to prevent 
the violation, and failed to prevent the violation. 
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‘‘(2) AMOUNT OF CIVIL PENALTY.—The amount 
of, or range for, a civil penalty for a violation under 
paragraph (1) shall, in any case where a similar civil 
penalty against the employer is established by law, 
be the amount or range for the civil penalty that 
may be assessed against the contractor for such vio-
lation.’’. 
(9) FAMILY
AND
MEDICAL
LEAVE
ACT
OF 
1993.—Section 107 of the Family and Medical 
Leave Act of 1993 (29 U.S.C. 2617) is amended— 
(A) by redesignating subsections (e) and 
(f) as subsections (i) and (j), respectively; and 
(B) by inserting after subsection (d) the 
following: 
‘‘(e) OWNERS, DIRECTORS, OFFICERS, AND MAN-
AGING AGENTS.— 
‘‘(1) IN GENERAL.—In any action or proceeding 
for a violation of this Act, the Secretary or court 
may also assess a civil penalty for such violation 
against an owner, director, officer, or managing 
agent of the employer if the Secretary or court de-
termines, based on the particular facts and cir-
cumstances presented, that personal liability for the 
violation is warranted because the owner, director, 
officer, or managing agent— 
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247 
‘‘(A) directed or committed the violation; 
‘‘(B) established a policy that led to such 
a violation; or 
‘‘(C) had actual or constructive knowledge 
of the violation, had the authority to prevent 
the violation, and failed to prevent the violation. 
‘‘(2) AMOUNT OF CIVIL PENALTY.—The amount 
of, or range for, a civil penalty for a violation under 
paragraph (1) shall, in any case where a similar civil 
penalty against the employer is established by law, 
be the amount or range for the civil penalty that 
may be assessed against the employer for such viola-
tion.’’. 
(c) RESPONSIBILITIES
OF
10 LARGEST
SHARE-
HOLDERS.— 
(1) FAIR LABOR STANDARDS ACT OF 1938.— 
Section 16 of the Fair Labor Standards Act of 1938 
(20 U.S.C. 216), as amended by subsection (b)(1), 
is further amended by adding at the end the fol-
lowing: 
‘‘(h) JOINT LIABILITY OF LARGE SHAREHOLDERS.— 
‘‘(1) IN GENERAL.—In any action or proceeding 
for a violation of this Act, the 10 largest share-
holders of an employer, as determined by the fair 
value for their beneficial interest as of the beginning 
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248 
of the period during which the violation occurred, 
shall— 
‘‘(A) jointly and severally be personally lia-
ble for all violations of this Act and for all dam-
ages awarded and civil penalties assessed for 
violations of this Act; and 
‘‘(B) notwithstanding subparagraph (A), 
be personally responsible for 10 percent of any 
damages, civil penalties, or other restitution or 
fees assessed against the employer for the viola-
tions, with the employer responsible for not 
more than 90 percent. 
‘‘(2) NO REIMBURSEMENT.—An employer may 
not refund in any way any amounts paid by a share-
holder under paragraph (1).’’. 
(2) NATIONAL
LABOR
RELATIONS
ACT.—Sec-
tion 12 of the National Labor Relations Act (29 
U.S.C. 162), as amended by subsection (b)(2), is 
further amended by adding at the end the following: 
‘‘(f) JOINT LIABILITY OF LARGE SHAREHOLDERS.— 
‘‘(1) IN GENERAL.—In any action or proceeding 
for a violation of this Act, the 10 largest share-
holders of an employer, as determined by the fair 
value for their beneficial interest as of the beginning 
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249 
of the period during which the violation occurred, 
shall— 
‘‘(A) jointly and severally be personally lia-
ble for all violations of this Act and for all dam-
ages awarded and civil penalties assessed for 
violations of this Act; and 
‘‘(B) notwithstanding subparagraph (A), 
be personally responsible for 10 percent of any 
damages, civil penalties, or other restitution or 
fees assessed against the employer for the viola-
tions, with the employer responsible for not 
more than 90 percent. 
‘‘(2) NO REIMBURSEMENT.—An employer may 
not refund in any way any amounts paid by a share-
holder under paragraph (1).’’. 
(3) OCCUPATIONAL SAFETY AND HEALTH ACT 
OF 1970.—Section 17 of the Occupational Safety 
and Health Act of 1970 (29 U.S.C. 666), as amend-
ed by subsection (b)(3), is further amended by add-
ing at the end the following: 
‘‘(n) JOINT LIABILITY OF LARGE SHAREHOLDERS.— 
‘‘(1) IN GENERAL.—In any action or proceeding 
for a violation of this Act, including any standard, 
rule, regulation, or order promulgated pursuant to 
this Act, the 10 largest shareholders of an employer, 
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250 
as determined by the fair value for their beneficial 
interest as of the beginning of the period during 
which the violation occurred, shall— 
‘‘(A) jointly and severally be personally lia-
ble for all violations of this Act and for all dam-
ages awarded and civil penalties assessed for 
violations of this Act; and 
‘‘(B) notwithstanding subparagraph (A), 
be personally responsible for 10 percent of any 
damages, civil penalties, or other restitution or 
fees assessed against the employer for the viola-
tions, with the employer responsible for not 
more than 90 percent. 
‘‘(2) NO REIMBURSEMENT.—An employer may 
not refund in any way any amounts paid by a share-
holder under paragraph (1).’’. 
(4) FEDERAL MINE SAFETY AND HEALTH ACT 
OF 1977.—Section 118 of the Federal Mine Safety 
and Health Act of 1977, as added by subsection 
(b)(4), is further amended by adding at the end the 
following: 
‘‘(b) JOINT LIABILITY OF LARGE SHAREHOLDERS.— 
‘‘(1) IN GENERAL.—In any action or proceeding 
for a violation of this Act, including any mandatory 
health or safety standard, rule, order, or regulation 
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251 
promulgated pursuant to this Act, the 10 largest 
shareholders of an operator of a coal or other mine, 
as determined by the fair value for their beneficial 
interest as of the beginning of the period during 
which such violation occurred, shall— 
‘‘(A) jointly and severally be personally lia-
ble for all such violations, and for all damages 
awarded and civil penalties assessed for such 
violations; and 
‘‘(B) notwithstanding subparagraph (A), 
be personally responsible for 10 percent of any 
damages, civil penalties, or other restitution or 
fees assessed against the operator for all viola-
tions, with the operator responsible for not 
more than 90 percent. 
‘‘(2) NO REIMBURSEMENT.—An operator may 
not refund in any way any amounts paid by a share-
holder under paragraph (1).’’. 
(5) MIGRANT
AND
SEASONAL
AGRICULTURAL 
WORKER PROTECTION ACT.—Section 505 of the Mi-
grant and Seasonal Agricultural Worker Protection 
Act, as added by subsection (b)(5), is further 
amended by adding at the end the following: 
‘‘(b) JOINT LIABILITY OF LARGE SHAREHOLDERS.— 
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276 
fees, or other amounts required to be paid by 
the franchisee as a result of the violation of this 
chapter. 
‘‘(3) PROHIBITION ON WAIVER.— 
‘‘(A) IN GENERAL.—A franchisor shall not 
require or otherwise request a franchisee to 
waive the franchisee’s right to indemnification 
under this subsection. 
‘‘(B) REMEDY AND CIVIL PENALTY.—If a 
franchisor violates subparagraph (A)— 
‘‘(i) any indemnification waiver ob-
tained shall be null and void; and 
‘‘(ii) the franchisor shall be subject to 
a civil penalty of $100,000. 
‘‘(4) PROHIBITION ON RETALIATION.— 
‘‘(A) IN GENERAL.—A franchisor shall not 
end a franchise agreement with, take adverse 
action in relation to, or otherwise discriminate 
against, a franchisee for pursuing indemnifica-
tion under this subsection. 
‘‘(B) REMEDY AND CIVIL PENALTY.—Any 
franchisor who violates subparagraph (A) shall 
be subject to a civil penalty of $100,000.’’. 
(i) FAMILY AND MEDICAL LEAVE ACT OF 1993.— 
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277 
(1) IN GENERAL.—Section 101(4) of the Fam-
ily and Medical Leave Act of 1993 (29 U.S.C. 
2611(4)), as amended by section 202(a)(9), is fur-
ther amended by adding at the end the following: 
‘‘(F) FRANCHISORS AND FRANCHISEES.— 
A franchisor shall also be responsible for the 
rights and protections of this Act with regard 
to an employee, in any case where a franchisee 
of the franchisor is responsible for the rights 
and protections of this Act for the employee.’’. 
(2) INDEMNIFICATION.—Section 107 of the 
Family and Medical Leave Act of 1993 (29 U.S.C. 
2617), as amended by section 202(c)(9), is further 
amended by inserting after subsection (f) the fol-
lowing: 
‘‘(g) FRANCHISEES AND FRANCHISORS.— 
‘‘(1) INDEMNIFICATION
BY
FRANCHISOR.—An 
employer or other entity that is found to be in viola-
tion of this Act and is a franchisee shall have the 
right to indemnification as described in paragraph 
(2) from the franchisor, in any case where the viola-
tion was— 
‘‘(A) at the behest of the franchisor; 
‘‘(B) at the direction of the franchisor; 
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