I 
110TH CONGRESS 
2D SESSION 
H. R. 6111 
To amend the Fair Labor Standards Act to require employers to keep records 
of non-employees who perform labor or services for remuneration and 
to provide a special penalty for employers who misclassify employees 
as non-employees, and for other purposes. 
IN THE HOUSE OF REPRESENTATIVES 
MAY 21, 2008 
Mr. ANDREWS (for himself, Ms. WOOLSEY, Mr. MICHAUD, Mr. GEORGE MIL-
LER of California, Ms. SHEA-PORTER, Mr. DAVIS of Illinois, Mr. 
MCDERMOTT, Mr. HOLT, Mr. KILDEE, Mr. HARE, Mr. PAYNE, Mr. 
GRIJALVA, Mr. WU, Ms. CLARKE, Mr. TIERNEY, Ms. LINDA T. SA´NCHEZ 
of California, Mr. SARBANES, Mrs. MCCARTHY of New York, Mr. BISHOP 
of New York, Mr. LOEBSACK, Mr. SCOTT of Virginia, Mr. KUCINICH, Ms. 
HIRONO, and Mr. HINOJOSA) introduced the following bill; which was re-
ferred to the Committee on Education and Labor, and in addition to the 
Committee on Ways and Means, for a period to be subsequently deter-
mined by the Speaker, in each case for consideration of such provisions 
as fall within the jurisdiction of the committee concerned 
A BILL 
To amend the Fair Labor Standards Act to require employ-
ers to keep records of non-employees who perform labor 
or services for remuneration and to provide a special 
penalty for employers who misclassify employees as non- 
employees, and for other purposes. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
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described in paragraph (1) as either an employee of the 
employer (within the meaning of section 3(g)) or a non- 
employee engaged by the employer for the performance of 
labor or services. 
‘‘(3)(A) Every employer subject to any provision of 
this Act or any order issued under this Act shall provide 
the notice described in subparagraph (C) to each employee 
of the employer and each individual classified under para-
graph (2) as a non-employee engaged by the employer for 
the performance of labor or services. 
‘‘(B) Such notice shall be provided, at minimum, not 
later than 6 months after the date of enactment of the 
Employee Misclassification Prevention Act, and thereafter 
for new employees, upon employment, and for non-employ-
ees engaged for the performance of labor or services, upon 
commencement of the services subject to such contract. 
Every employer shall also provide such notice to any indi-
vidual upon changing such individual’s status as an em-
ployee or non-employee under paragraph (2). 
‘‘(C) The notice required under this paragraph shall 
be in writing and shall— 
‘‘(i) inform the individual of the employer’s 
classification of the individual as an employee or a 
non-employee under paragraph (2); 
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‘‘(ii) include a statement directing such indi-
vidual to a Department of Labor website established 
for the purpose of providing further information 
about the rights of employees under the law; 
‘‘(iii) include the address and telephone number 
for the applicable local office of the Federal Depart-
ment of Labor; 
‘‘(iv) include for those individuals classified by 
the employer as a non-employee under paragraph 
(2), the following statement: ‘Your rights to wage, 
hour, and other labor protections depend upon your 
proper classification as an employee or non-em-
ployee. 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. De-
partment of Labor.’; and 
‘‘(v) include such additional information as the 
Secretary shall prescribe by regulation.’’. 
(b) SPECIAL PROHIBITED ACT.—Section 15(a) of 
such Act is amended by adding at the end the following: 
‘‘(6) to fail to accurately classify an individual 
in accordance with section 11(c).’’. 
(c) SPECIAL PENALTY FOR CERTAIN RECORD-KEEP-
ING AND NOTICE VIOLATIONS.—Section 16 of the Fair 
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Labor Standards Act of 1938 (29 U.S.C. 216) is amend-
ed— 
(1) in subsection (b)— 
(A) in the third sentence, by striking ‘‘ei-
ther of the preceding sentences’’ and inserting 
‘‘any of the preceding sentences’’; and 
(B) 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), after the first sentence in 
the matter preceding paragraph (1), by inserting the 
following: ‘‘Any person who repeatedly or willfully 
violates section 15(a)(6) shall be subject to a civil 
penalty of not to exceed $10,000 for each such viola-
tion.’’. 
(d) EMPLOYEE RIGHTS WEBSITE.—Not later than 
90 days after the date of enactment of this Act, the Sec-
retary of Labor shall establish, for purposes of section 
11(c)(3)(C)(ii) of the Fair Labor Standards Act of 1938 
(as added by this Act), a single web page on the Depart-
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ment of Labor website that summarizes in plain language 
the rights of employees under the Fair Labor Standards 
Act and other Federal laws. Such web page shall contain 
appropriate links to additional information on the Depart-
ment of Labor website or other Federal agency websites, 
including wage and hour complaint forms, along with 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. Such web page shall be 
made available in English and any other languages which 
the Secretary determines to be prevalent among individ-
uals likely to access the web page. The Secretary shall co-
ordinate with other relevant Federal agencies in order to 
provide similar information (or a link to the Department 
of Labor web page 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: 
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‘‘(11)(A) Such auditing and investigative pro-
grams as may be necessary to identify employers 
that have not registered under the State law or that 
are paying unreported compensation, where these ac-
tions or omissions by the employers have the effect 
of excluding employees from unemployment com-
pensation 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 pro-
grams under subparagraph (A); and 
‘‘(12) The establishment of administrative pen-
alties for misclassifying employees, or paying unre-
ported compensation to employees without proper 
record keeping, for unemployment compensation 
purposes.’’. 
(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-re-
porting of wages and the underpayment of unemployment 
compensation tax contributions (including their effective-
ness in identifying instances of such under-reporting or 
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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 ses-
sion of the legislature of such State which be-
gins after the date of the enactment of this Act; 
or 
(B) 12 months after the date of the enact-
ment of this Act. 
(d) DEFINITIONS.—For purposes of this section— 
(1) the term ‘‘State’’ has the meaning given 
such term by section 3306(j) of the Internal Rev-
enue Code of 1986 (26 U.S.C. 3306(j)); and 
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(2) the term ‘‘session’’, as used with respect to 
a State legislature, means a regular, special, budget, 
or other session of such legislature. 
SEC. 4. DEPARTMENT OF LABOR COORDINATION AND RE-
FERRAL. 
Notwithstanding any other provision of law, any of-
fice, administration, or division of the Department of 
Labor that, while in the performance of its official duties, 
obtains information regarding the misclassification by an 
employer of any individual regarding whether such indi-
vidual is an employee or a non-employee contracted for 
the performance of services for purposes of section 6 or 
7 of the Fair Labor Standards Act or in records required 
under section 11(c) of such Act, shall report such informa-
tion to the Employment Standards Administration of the 
Department. The Employment Standards Administration 
may report such information to the Internal Revenue 
Service as the Administration considers appropriate. 
SEC. 5. TARGETED AUDITS. 
The Secretary of Labor shall ensure that at least 25 
percent of the audits of employers subject to the Fair 
Labor Standards Act that are conducted by the Wage and 
Hour Division of the Department of Labor are focused 
on potential violations of the record-keeping requirements 
of section 11(c) of such Act (29 U.S.C. 211(c)) (as amend-
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ed by this Act). Such Division shall focus such audits on 
employers in industries with frequent incidence of 
misclassifying employees as non-employees, as determined 
by the Secretary. 
Æ 
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