‘‘(E) For purposes of this section, in determining 
years of service and hours of service— 
‘‘(i) service shall include all service for the em-
ployer as an employee under the common law, irre-
spective of whether the individual— 
‘‘(I) is paid through a staffing firm, tem-
porary help firm, payroll agency, employment 
agency, or other such similar arrangement, 
‘‘(II) is paid directly by the employer 
under an arrangement purporting to charac-
terize an employee under the common law as 
other than an employee, or 
‘‘(III) is paid from an account not des-
ignated as a payroll account, and 
‘‘(ii) in any case in which an employer, plan 
sponsor, or fiduciary (including any administrator, 
officer, trustee, or custodian) changes the job classi-
fication of any person from employee to leased em-
ployee, agency employee, staffing firm employee, 
independent contractor, or any similar category, in 
determining years of service and hours of service, 
service shall include all service for the employer that 
the person performs subsequent to such reclassifica-
tion.’’.
(b) EXCLUSION PRECLUDED WHEN RELATED TO 
CERTAIN PURPORTED CATEGORIZATIONS.—Section 202 
of such Act (29 U.S.C. 1052) is amended further by add-
ing at the end the following new subsection: 
‘‘(c)(1) Subject to paragraph (2), a pension plan shall 
be treated as failing to meet the requirements of this sec-
tion if the plan excludes from participation any person 
who performs the same work (or substantially the same 
work) for the employer as other employees who generally 
are not excluded from participation in the plan, irrespec-
tive of the placement of such person in any category of 
workers (such as temporary employees, part-time employ-
ees, leased employees, agency employees, staffing firm em-
ployees, independent contractors, or any similar category) 
which may be specified under the plan as ineligible for 
participation. 
‘‘(2) Nothing in paragraph (1) shall be construed to 
preclude the exclusion from participation in a pension plan 
of individuals who in fact do not meet a minimum service 
period or minimum age which is required under the terms 
of the plan and which is otherwise in conformity with the 
requirements of this section.’’.
SEC. 4. OBJECTIVE ELIGIBILITY CRITERIA IN PLAN IN-
STRUMENTS. 
Section 402 of the Employee Retirement Income Se-
curity Act of 1974 (29 U.S.C. 1102) is amended by adding 
at the end the following new subsection: 
‘‘(d)(1) The written instrument pursuant to which an 
employee benefit plan is maintained shall set forth eligi-
bility criteria which— 
‘‘(A) include and exclude employees on a uni-
form basis; 
‘‘(B) are based on reasonable job classifications 
other than the mere labeling of a job position as 
something other than an employee; and 
‘‘(C) are based on objective criteria stated in 
the instrument itself for the inclusion or exclusion 
(other than the mere listing of an employee as in-
cluded or excluded). 
‘‘(2) No employee benefit plan may permit an em-
ployer or plan sponsor to exclude any person from partici-
pation irrespective of the placement of such employee in 
any category of workers (such as temporary employees, 
leased employees, agency employees, staffing firm employ-
ees, contractors, or any similar category), if the em-
ployee— 
‘‘(A) is an employee of the employer under the 
common law;