‘‘(B) 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; and 
‘‘(C) meets a minimum service period or min-
imum age which is required under the terms of the 
plan. 
‘‘(3) In any case in which the employer of an indi-
vidual who is a participant in an employee benefit plan, 
the plan sponsor of such plan, or a fiduciary of such plan 
requires such individual to convert to the status of a tem-
porary employee, leased employee, agency employee, staff-
ing firm employee, contractor, or any similar category as 
a condition of continuing in the service of the employer, 
such individual shall not cease to be treated under such 
plan or this title as a participant in such plan by reason 
of such conversion.’’. 
SEC. 5. ENFORCEMENT. 
Section 502 of the Employee Retirement Income Se-
curity Act of 1974 (29 U.S.C. 1132) is amended— 
(1) in paragraphs (3)(B) and (5)(B) of sub-
section (a), by striking ‘‘other appropriate equitable 
relief’’ and inserting ‘‘other appropriate relief, in-
cluding such additional relief as a court of equity 
might have awarded in a case involving the enforce-
ment or administration of a trust, other equitable 
relief, compensatory relief, or remedial relief’’; 
(2) in subsection (a)(3)(B), by striking ‘‘or’’ at 
the end of clause (i) and inserting a comma, by 
striking the semicolon at the end of clause (ii) and 
inserting ‘‘, or’’, and by adding at the end the fol-
lowing: ‘‘(iii) to provide restitution and other appro-
priate relief to employees who have been excluded 
from participation or have been misclassified or re-
classified in violation of section 202 or 402’’; 
(3) by striking ‘‘or’’ at the end of subsection 
(a)(8), by striking the period at the end of sub-
section (a)(9) and inserting ‘‘; or’’, and by adding at 
the end the following new paragraph: 
‘‘(10) by a participant or beneficiary to obtain 
a judicial declaration concerning whether a waiver of 
rights arising under this title or a plan, including a 
waiver of participation in a plan, was knowing and 
voluntary under the totality of the circumstances.’’; 
(4) in subsection (g)(1), by inserting ‘‘, reason-
able expert fees,’’ before ‘‘and costs’’ and by insert-
ing before the period at the end the following: ‘‘, ex-
cept that the court shall award such fees and costs 
to a prevailing party in the case of an action 
brought to enforce section 510, unless the court de-
termines that it would be unjust to do so under the 
circumstances’’; and 
(5) by adding at the end of section 502 the fol-
lowing new subsection: 
‘‘(n) In an action under this section, if the court finds 
that any participant or beneficiary has been discharged, 
fined, suspended, expelled, disciplined, or discriminated 
against in violation of section 510, relief under this section 
may include enjoining such unlawful conduct and ordering 
such affirmative action as may be appropriate. Such ac-
tion may include, but is not limited to, reinstatement or 
hiring and an award of back pay and lost benefits.’’. 
SEC. 6. WAIVERS. 
Section 502 of the Employee Retirement Income Se-
curity Act of 1974 (29 U.S.C. 1132) (as amended by sec-
tion 5) is amended further by adding at the end the fol-
lowing new subsection: 
‘‘(o)(1) The rights under this title (including the 
right to maintain a civil action) may not be waived, de-
ferred, or lost pursuant to any agreement not authorized 
under this title with specific reference to this paragraph. 
‘‘(2)(A) Subject to subparagraph (B), paragraph (1) 
shall not apply to an agreement providing for arbitration 
or participation in any other non-judicial procedure to re-
solve a dispute if the agreement is entered into knowingly