‘‘(ii) whom the person has engaged, in 
the course of the person’s trade or busi-
ness, for the performance of labor or serv-
ices; and 
‘‘(iii)(I) with respect to whom the per-
son is required to file an information re-
turn under section 6041A(a) of the Inter-
nal Revenue Code of 1986; or 
‘‘(II) who is providing labor or serv-
ices to the person through an entity that 
is a trust, estate, partnership, association, 
company, or corporation (as such terms 
are used in section 7701(a)(1) of the In-
ternal Revenue Code of 1986) if— 
‘‘(aa) such individual has an 
ownership interest in the entity; 
‘‘(bb) creation or maintenance of 
such entity is a condition for the pro-
vision of such labor or services to the 
person; and 
‘‘(cc) the person would be re-
quired to file an information return 
for the entity under section 6041A(a) 
of the Internal Revenue Code of 1986 
if the entity were an individual; and 
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‘‘(C) the remuneration and hours relating 
to the performance of labor or services by each 
individual described in subparagraph (B); and 
‘‘(D) the notices required under paragraph 
(5), 
and shall’’; and 
(4) by adding at the end the following: 
‘‘(2) RECORDKEEPING LIMITATION.—A person 
otherwise subject to the requirements of paragraph 
(1) shall have no responsibility for making, keeping, 
or preserving records, including the records de-
scribed in such paragraph and paragraph (4), con-
cerning the employees of any individual described in 
paragraph (1)(B) or the non-employees with whom 
such individual has engaged for the performance of 
labor or services for such person, unless such 
records are provided during the course of the trade 
or business to the person. 
‘‘(3) PRESUMPTION.— 
‘‘(A) IN GENERAL.—For purposes of this 
Act and the regulations or orders issued under 
this Act, an individual who is employed, or who 
is remunerated for the performance of labor or 
services, by a person, shall be presumed to be 
an employee of the person if— 
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‘‘(i) the person has not made, kept, 
and preserved records in accordance with 
subparagraphs (B) and (C) of paragraph 
(1) regarding the individual; or 
‘‘(ii) the person has not provided the 
individual with the notice required under 
paragraph (5). 
‘‘(B) REBUTTAL.—The presumption under 
subparagraph (A) shall be rebutted only 
through the presentation of clear and con-
vincing evidence that an individual described in 
such subparagraph is not an employee (within 
the meaning of section 3(e)) of the person. 
‘‘(4) ACCURATE CLASSIFICATION.—An accurate 
classification of the status of each individual de-
scribed in paragraph (1) as either an employee 
(within the meaning of section 3(e)) of the person 
maintaining the records or a non-employee of such 
person shall be included within the records under 
this subsection. 
‘‘(5) NOTICE.— 
‘‘(A) IN GENERAL.—Every person subject 
to any provision of this Act or of any order 
issued under this Act shall provide the notice 
described in subparagraph (C) to each employee 
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of the person and each individual classified by 
the person as a non-employee under paragraph 
(1)(B). 
‘‘(B) TIMING OF NOTICE.— 
‘‘(i) IN GENERAL.—Such notice shall 
be provided, at a minimum, not later than 
6 months after the date of enactment of 
the Employee Misclassification Prevention 
Act, and thereafter— 
‘‘(I) for new employees, upon em-
ployment; and 
‘‘(II) for new non-employees who 
are classified under paragraph (1)(B), 
upon commencement of the labor or 
services described in such paragraph. 
‘‘(ii) CHANGE IN STATUS.—Each per-
son required to provide notice under sub-
paragraph (A) to an individual shall also 
provide such notice to such individual upon 
changing such individual’s status as an 
employee or non-employee under paragraph 
(1). 
‘‘(C) CONTENTS OF NOTICE.—The notice 
required under this paragraph shall be in writ-
ing and shall— 
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‘‘(i) inform the individual of the indi-
vidual’s classification, by the person sub-
mitting the notice, as an employee or a 
non-employee under paragraph (1); 
‘‘(ii) include a statement directing 
such individual to a Department of Labor 
website established for the purpose of pro-
viding further information about the rights 
of employees under the law; 
‘‘(iii) include the address and tele-
phone number for the applicable local of-
fice of the United States Department of 
Labor; 
‘‘(iv) include for each individual classi-
fied as a non-employee under paragraph 
(1)(B) by the person submitting the notice, 
the following statement: ‘Your rights to 
wage, hour, and other labor protections de-
pend upon your proper classification as an 
employee or non-employee. If you have any 
questions or concerns about how you have 
been classified or suspect that you may 
have been misclassified, contact the U.S. 
Department of Labor.’; and 
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‘‘(v) include such additional informa-
tion as the Secretary shall prescribe by 
regulation.’’. 
(b) SPECIAL PROHIBITED ACTS.—Section 15(a) of 
the Fair Labor Standards Act of 1938 (29 U.S.C. 215(a)) 
is amended— 
(1) by striking paragraph (3) and inserting the 
following: 
‘‘(3) to discharge or in any other manner dis-
criminate against any individual (including an em-
ployee) because such individual has— 
‘‘(A) opposed any practice, or filed a peti-
tion or complaint or instituted or caused to be 
instituted any proceeding— 
‘‘(i) under or related to this Act (in-
cluding concerning an individual’s status 
as an employee or non-employee for pur-
poses of this Act); or 
‘‘(ii) concerning an individual’s status 
as an employee or non-employee for em-
ployment tax purposes within the meaning 
of subtitle C of the Internal Revenue Code 
of 1986; 
‘‘(B) testified or is about to testify in any 
proceeding described in subparagraph (A); or 
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‘‘(C) served, or is about to serve, on an in-
dustry committee;’’; 
(2) in paragraph (5), by striking the period at 
the end and inserting ‘‘; and’’; and 
(3) by adding at the end the following: 
‘‘(6) to fail to accurately classify an individual 
as an employee.’’. 
(c) 
SPECIAL
PENALTY
FOR
CERTAIN 
MISCLASSIFICATION, RECORDKEEPING, AND NOTICE VIO-
LATIONS.—Section 16 of the Fair Labor Standards Act 
of 1938 (29 U.S.C. 216) is amended— 
(1) in subsection (b)— 
(A) in the sixth sentence, by striking ‘‘any 
employee’’ each place the term occurs and in-
serting ‘‘any employee or individual’’; 
(B) in the fourth sentence, by striking 
‘‘employee’’ and inserting ‘‘employee or indi-
vidual’’; 
(C) in the third sentence— 
(i) by striking ‘‘either of the preceding 
sentences’’ and inserting ‘‘any of the pre-
ceding sentences’’; 
(ii) by striking ‘‘one or more employ-
ees’’ and inserting ‘‘one or more employees 
or individuals’’; and 
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(iii) by striking ‘‘other employees’’ 
and inserting ‘‘other employees or individ-
uals, respectively,’’; and 
(D) by inserting after the first sentence 
the following: ‘‘Such liquidated damages are 
doubled (subject to section 11 of the Portal-to- 
Portal Pay Act of 1947 (29 U.S.C. 260)) 
where, in addition to violating the provisions of 
section 6 or 7, the employer has violated the 
provisions of section 15(a)(6) with respect to 
such employee or employees.’’; and 
(2) in subsection (e), by striking paragraph (2) 
and inserting the following: 
‘‘(2) Any person who violates section 6, 7, 11(c), or 
15(a)(6) shall be subject to a civil penalty, for each em-
ployee or other individual who was the subject of such a 
violation, in an amount— 
‘‘(A) not to exceed $1,100; or 
‘‘(B) in the case of a person who has repeatedly 
or willfully committed such violation, not to exceed 
$5,000.’’. 
(d) EMPLOYEE RIGHTS WEBSITE.— 
(1) IN
GENERAL.—Not later than 180 days 
after the date of enactment of this Act, the Sec-
retary of Labor shall establish, for purposes of sec-
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tion 11(c)(5)(C)(ii) of the Fair Labor Standards Act 
of 1938 (as added by this Act), a single webpage on 
the Department of Labor website that summarizes 
in plain language the rights of employees as de-
scribed in the amendments made by subsection (a) 
and other information considered appropriate by the 
Secretary, including appropriate links to additional 
information on the Department of Labor website or 
other Federal agency websites. In addition, such 
webpage— 
(A) shall include a statement explaining 
that employees may have additional or greater 
rights under State or local laws and how em-
ployees may obtain additional information about 
their rights under State or local laws; 
(B) shall be made available in English and 
any other languages that the Secretary deter-
mines to be prevalent among individuals likely 
to access the webpage; and 
(C) may provide a link to permit individ-
uals to file complaints online. 
(2) COORDINATION
WITH
OTHER
FEDERAL 
WEBSITES.—The Secretary shall coordinate with 
other relevant Federal agencies in order to provide 
information similar to the information described in 
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paragraph (1) (or a link to the Department of Labor 
webpage required by this subsection) on the websites 
of such other agencies. 
SEC. 3. MISCLASSIFICATION OF EMPLOYEES FOR UNEM-
PLOYMENT COMPENSATION PURPOSES. 
(a) IN GENERAL.—Section 303(a) of the Social Secu-
rity Act (42 U.S.C. 503(a)) is amended— 
(1) in paragraph (10), by striking the period 
and inserting ‘‘; and’’; and 
(2) by adding after paragraph (10) the fol-
lowing: 
‘‘(11)(A) Such auditing and investigative proce-
dures as may be necessary to identify employers that 
have not registered under the State law or that are 
paying unreported wages, where these actions or 
omissions by the employers have the effect of exclud-
ing employees from unemployment compensation 
coverage; and 
‘‘(B) The making of quarterly reports to the 
Secretary of Labor (in such form as the Secretary 
of Labor may require) describing the results of the 
procedures under subparagraph (A); and 
‘‘(12) The establishment of administrative pen-
alties for misclassifying employees, or paying unre-
ported wages to employees without proper record-
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keeping, for unemployment compensation pur-
poses.’’. 
(b) REVIEW
OF AUDITING PROGRAMS.—The Sec-
retary of Labor shall include, in the Department of La-
bor’s system for measuring States’ performance in con-
ducting unemployment compensation tax audits, a specific 
measure of their effectiveness in identifying the under-
reporting of wages and the underpayment of unemploy-
ment compensation contributions (including their effec-
tiveness in identifying instances of such underreporting or 
underpayments despite the absence of cancelled checks, 
original time sheets, or other similar documentation). 
(c) EFFECTIVE DATE.— 
(1) IN GENERAL.—Except as provided in para-
graph (2), the amendments made by subsection (a) 
shall take effect 12 months after the date of the en-
actment of this Act. 
(2) EXCEPTION.—If the Secretary of Labor 
finds that legislation is necessary in order for the 
unemployment compensation law of a State to com-
ply with the amendments made by subsection (a), 
such amendments shall not apply with respect to 
such law until the later of— 
(A) the day after the close of the first reg-
ular session of the legislature of such State 
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which begins after the date of the enactment of 
this Act; or 
(B) 12 months after the date of the enact-
ment of this Act. 
(d) DEFINITION OF STATE.—For purposes of this 
section, the term ‘‘State’’ has the meaning given such 
term by section 3306(j) of the Internal Revenue Code of 
1986. 
SEC. 4. DEPARTMENT OF LABOR COORDINATION, REFER-
RAL, AND REGULATIONS. 
(a) 
COORDINATION
AND
REFERRAL.—Notwith-
standing any other provision of law, any office, adminis-
tration, or division of the Department of Labor that, while 
in the performance of its official duties, obtains informa-
tion regarding the misclassification by a person subject to 
the provisions of the Fair Labor Standards Act of 1938 
(29 U.S.C. 201 et seq.) or any order issued under such 
Act of any individual regarding whether such individual 
is an employee or a non-employee contracted for the per-
formance of labor or services for purposes of section 6 or 
7 of such Act (29 U.S.C. 206, 207) or in records required 
under section 11(c) of such Act (29 U.S.C. 211(c)), shall 
report such information to the Wage and Hour Division 
of the Department. The Wage and Hour Division may re-
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port such information to the Internal Revenue Service as 
the Division considers appropriate. 
(b) REGULATIONS.—The Secretary of Labor shall 
promulgate regulations to carry out this Act and the 
amendments made by this Act. 
SEC. 5. TARGETED AUDITS. 
The audits of employers subject to the Fair Labor 
Standards Act of 1938 (29 U.S.C. 201 et seq.) that are 
conducted by the Wage and Hour Division of the Depart-
ment of Labor shall include certain industries with fre-
quent incidence of misclassifying employees as non-em-
ployees, as determined by the Secretary of Labor. 
Æ 
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