I 116th CONGRESS 2d Session H. R. 8375 IN THE HOUSE OF REPRESENTATIVES September 24, 2020 Ms. DeLauro introduced the following bill; which was referred to the Committee on Education and Labor , and in addition to the Committees on Oversight and Reform , House Administration , and Ways and Means , for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned A BILL To provide a right to flexibility and to broaden and increase employee protections at work, to protect small businesses through shared responsibility for workers' rights, to provide public transparency on workers' rights violations, and for other purposes.

1. Short title This Act may be cited as the Worker Flexibility and Small Business Protection Act of 2020 . 2. Table of contents The table of contents for this Act is as follows: Sec. 1. Short title. Sec. 2. Table of contents. TITLE I—Right to flexibility and employee protections at work Sec. 101. Right to flexibility. Sec. 102. Right to employee protections at work. TITLE II—Small business protection through shared responsibility for workers’ rights Sec. 201. General shared responsibility for workers’ rights. Sec. 202. Massive corporations. Sec. 203. Franchisors. Sec. 204. Temporary staffing companies. Sec. 205. Licensors. Sec. 206. Labor contractors. Sec. 207. Supply chain responsibility plan. Sec. 208. Conforming amendments. TITLE III—Public transparency on workers' rights violations Sec. 301. Consumer right to know about compliance with workers' rights. TITLE IV—Creating broad and increasing worker protections Sec. 401. General standards for applying and interpreting workers' rights. Sec. 402. Statutes of limitation. TITLE V—General provisions Sec. 501. Severability. I Right to flexibility and employee protections at work 101. Right to flexibility (a) In general The Fair Labor Standards Act of 1938 ( 29 U.S.C. 201 et seq.) is amended— (1) by inserting after section 7 ( 29 U.S.C. 207 ) the following: 8. Right to flexibility (a) Definitions In this section: (1) Covered employee The term covered employee means, with respect to an employer, an employee who— (A) prior to the date of enactment of the Worker Flexibility and Small Business Protection Act of 2020 , was classified by the employer as an independent contractor; and (B) in any workweek is engaged in commerce or in the production of goods for commerce, or is employed by an enterprise engaged in commerce or in the production of goods for commerce. (2) Schedule and scheduling flexibility The term schedule and scheduling flexibility , with respect to the work of a covered employee under subsection (b), includes— (A) the timing of the work throughout an hour, day, week, month, or year; (B) the total duration of the work in any given period; (C) the location where the work is performed; and (D) the ability to perform work for any entity other than the employer of the covered employee, including any direct competitor of the employer. (b) Right To keep flexibility (1) In general Any covered employee of an employer has the right to maintain the same schedule and scheduling flexibility that the covered employee possessed at any time while performing labor for such employer as an independent contractor in the 12-month period prior to the date of enactment of the Worker Flexibility and Small Business Protection Act of 2020 . (2) Duration of right A covered employee shall continue to possess the right to maintain the same schedule and scheduling flexibility described in paragraph (1) for the duration of the employment of the covered employee with the employer. (3) Nonretaliation (A) In general An employer of a covered employee— (i) may not discharge the covered employee for any reason except upon a showing of just cause; and (ii) may not otherwise discriminate against the covered employee because of or with relation to the schedule or scheduling flexibility of the employee. (B) Discrimination For the purposes of subparagraph (A)(ii), the term discriminate , with respect to a covered employee, shall include— (i) reducing the amount or number of hours of work of the covered employee; (ii) restricting or limiting the work of the covered employee for the employer; or (iii) removing the covered employee from the workplace, including by suspending or deactivating an account the covered employee uses to perform work for the employer. (C) Motivating factor For the purposes of subparagraph (A)(ii), unlawful discrimination is established when a covered employee demonstrates that the schedule or scheduling flexibility of the covered employee was a motivating factor for any adverse employment action taken by an employer, even if such action was also motivated by other factors. (c) Right To request future flexibility (1) Right to request An employee shall have the right to request to have the schedule that the employee desires, including— (A) the number of shifts or other units of work per day or week; (B) the number of hours of work per day; (C) the number of days of work per week; (D) the location where the employee performs the work; and (E) any unpaid time off the employee desires to take. (2) Nonretaliation (A) In general An employer shall not discharge or in any other manner discriminate against an employee for making a request described in paragraph (1). (B) Motivating factor Unlawful discharge or discrimination against an employee is established under subparagraph (A) when the complaining party demonstrates that the request described in paragraph (1) was a motivating factor for such discharge or discrimination, even if such discharge or discrimination was also motivated by other factors. (3) Response (A) In general An employer shall respond to a request described in paragraph (1) by either granting the request in full or providing the employee with a written justification for any portion of the request that the employer denies based on a compelling business necessity. (B) Review by Secretary If the employer does not grant a request described in paragraph (1) in full, the employee may request review by the Secretary. The Secretary may— (i) issue an order to overrule the employer’s denial of the employee's request, or any portion of the employee’s request, if the Secretary finds that the employer does not have a compelling business necessity for the denial; or (ii) issue an order to confirm the employer's denial of the employee's request, or any portion of the employee's request, if the Secretary finds that the employer has a compelling business necessity for the denial. (C) Appeals (i) In general An aggrieved employer or employee may— (I) appeal an order of the Secretary under subparagraph (B) to an administrative law judge; and (II) appeal an order of an administrative law judge under subclause (I) to a Federal or State court of competent jurisdiction. (ii) Compliance with order during appeal For the duration of an appeal described in clause (i)(I), the employer and employee shall comply with the order of the Secretary until and unless the order is overturned by an administrative law judge. For the duration of an appeal described in clause (i)(II), the employer and employee shall comply with the order of the administrative law judge until and unless the order is overturned by a Federal or State court of competent jurisdiction. (D) Compelling business necessity For purposes of this paragraph, the term compelling business necessity means only any of the following: (i) A significant burden of additional costs to the employer that would be prohibitive of continuing to conduct business. (ii) A complete inability of the employer to reorganize work amongst existing employees. (iii) A complete inability of the employer to recruit additional employees. (iv) A significant detrimental effect on the ability of the employer to meet customer demand. (v) A lack of work during the period the employee proposes to work. (vi) A planned structural change to the employer's business, which was planned before the request was made. (vii) Any other grounds as determined by the Secretary through regulation that the Secretary demonstrates satisfy the high bar of being compellingly necessary for an employer to continue conducting business and being more than merely a legitimate business reason. ; (2) by striking section 10 ( 29 U.S.C. 210 ); and (3) by redesignating section 9 ( 29 U.S.C. 209 ) as section 10. (b) Enforcement (1) Prohibited acts Section 15(a)(2) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 215(a)(2) ) is amended by striking section 6 or 7 and inserting section 6, 7, or 8 . (2) Penalties Section 16(e) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 216(e) ) is amended by adding at the end the following: (6) Penalties for violating right to flexibility Any person who violates section 8 shall be subject to a civil penalty, for each employee aggrieved by the violation and for each day in which the employer is in such violation, of— (A) $1,000; or (B) if the violation is repeated or willful, $5,000. . (c) Conforming amendments to other laws (1) Age Discrimination in Employment Act of 1967 Section 7(a) of the Age Discrimination in Employment Act of 1967 ( 29 U.S.C. 626(a) ) is amended by striking sections 9 and 11 of the Fair Labor Standards Act of 1938, as amended ( 29 U.S.C. 209 and 211) and inserting sections 10 and 11 of the Fair Labor Standards Act of 1938, as amended ( 29 U.S.C. 210 and 211) . (2) Family and Medical Leave Act of 1993 Section 106(d) of the Family and Medical Leave Act of 1993 ( 29 U.S.C. 2616(d) ) is amended by striking section 9 of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 209 ) and inserting section 10 of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 210 ) . 102. Right to employee protections at work (a) Fair Labor Standards Act of 1938 (1) Strengthening employee test Section 3(e) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 203(e) ) is amended by adding at the end the following: (6) (A) For purposes of this Act, and except as provided in paragraphs (2), (3), (4), (5), (7), and (9), an individual performing any labor for remuneration for a person shall be an employee employed by the person and not an independent contractor of the person, unless— (i) the individual is free from control and direction in connection with the performance of the labor, both under the contract for the performance of the labor and in fact; (ii) the labor is performed outside the usual course of the business of the person; and (iii) the individual is customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the labor performed. (B) (i) Subparagraph (A) is not a codification of the common law and shall not be interpreted to reflect, or to be limited or restricted by, common law interpretations regarding when an individual is an employee of another person. Subparagraph (A) shall be considered complete as written, and any judicial or agency interpretation of such subparagraph shall be limited to the explicit requirements of such subparagraph. (ii) The requirements of subparagraph (A) shall not be in any way affected by any agreement, written 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. (7) (A) Notwithstanding any contrary provisions in this subsection or subsection (d) or (g), 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 agreement, without regard to the legality or enforceability of the non-compete agreement, shall be evidence of control for purposes of paragraph (6)(A)(i), but shall not by itself establish an employment relationship between such person and the individual. (B) In this paragraph, the term non-compete agreement means an agreement between a person and an individual who performs labor for such person that restricts the individual from performing, either during or after the individual performs labor for such person— (i) any labor for another person; (ii) any labor for a specified period of time; (iii) any labor in a specified geographical area; or (iv) any labor for another person that is similar to the labor such individual performed for the person that is a party to such agreement. . (2) Presumption of employee status Section 3(e) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 203(e) ), as amended by paragraph (1), is further amended by adding at the end the following: (8) For purposes of this Act, an individual performing any labor for remuneration for a person shall be presumed to be an employee of the person, unless the party seeking to assert otherwise establishes by clear and convincing evidence that the individual is not an employee in accordance with paragraphs (1) through (7) and paragraph (9). . (3) Misclassification as a standalone violation (A) In general The Fair Labor Standards Act of 1938 ( 29 U.S.C. 201 et seq.) is amended— (i) by inserting after section 4 ( 29 U.S.C. 204 ) the following: 5. Misclassification No employer shall misclassify any employee, who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, of the employer as not an employee of the employer for purposes of this Act. ; and (ii) in section 15(a) ( 29 U.S.C. 215(a) )— (I) in paragraph (5), by striking the period at the end and inserting a semicolon; and (II) by adding at the end the following: (6) to violate section 5; . (B) Incorporation to further violations Section 15(a) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 215(a) ), as amended by subparagraph (A)(ii), is further amended by adding at the end the following: (7) for the purpose, in whole or in part, of facilitating, or evading detection of, a violation of this Act, including a violation of paragraph (6)— (A) to incorporate or form, or assist in the incorporation or formation of, a corporation, partnership, limited liability corporation, or other entity; or (B) to pay or collect a fee for use of a foreign or domestic corporation, partnership, limited liability corporation, or other entity; or . (C) Penalties Section 16(e) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 216(e) ), as amended by section 101(b)(2), is further amended by adding at the end the following: (7) Penalties for misclassification and incorporation To further violations (A) In general Any person who violates paragraph (6) or (7) of section 15(a) 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 person for the year in which the person had the highest net profits out of all years in which the person was in such violation. (B) Repeated, or willful, and widespread violations If a violation of paragraph (6) or (7) of section 15(a) is repeated or willful, as described in subparagraph (A)(ii), and is widespread, as described in subparagraph (A)(iii), the higher penalty of the penalties described in such subparagraphs shall apply. (C) Payment of penalties Any penalty assessed under subparagraph (A) for a violation of paragraph (6) or (7) of section 15(a) shall be paid from an account of the person in such violation and not paid, or reimbursed, by any insurance plan that would indemnify the person from violations of such paragraph (6) or (7), respectively. If a person receives a payment from an insurance plan to indemnify the person from a violation of such paragraph, the person shall transfer the payment to the Secretary, in addition to the amount to be paid from the account of the person for the penalty. The amount of a payment transferred to the Secretary under this subparagraph shall be treated as a civil penalty under this section for a violation of section 15 for purposes of paragraph (5) of this subsection and subsection (f). . (4) Protection from retaliation for being an employee Section 15(a)(3) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 215(a)(3) ) is amended— (A) by striking employee because such employee has filed and inserting “employee because— (A) such employee has filed; ; (B) by striking committee; and inserting committee; or ; and (C) by adding at the end the following: (B) such employee— (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 person for purposes of this Act and not an independent contractor; and (ii) was classified by the person as an independent contractor prior to the date of enactment of the Worker Flexibility and Small Business Protection Act of 2020 ; . (5) Rules regarding unlawful discharge or discrimination Section 15 of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 215 ) is amended by adding at the end the following: (c) Rules regarding unlawful discharge or discrimination (1) Presumption of retaliation Any action taken against an employee within 90 days of the employee taking any action described in subsection (a)(3)(A), including taking any such action with respect to exercising the right of the employee pursuant to section 5 to not be misclassified, shall establish a rebuttable presumption that the action is discrimination against the employee in violation of subsection (a)(3). (2) Motivating factor Unlawful discharge or other discrimination against an employee under subsection (a)(3) is established when the complaining party demonstrates that one of the actions or the classification described in such subsection was a motivating factor for such discharge or other discrimination, even if such discharge or other discrimination was also motivated by other factors. . (6) Statutory employers in heavily misclassified industries (A) Definition of employer Section 3(d) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 203(d) ) is amended to read as follows: (d) Employer (1) In general The term employer includes any person acting directly or indirectly in the interest of an employer in relation to an employee. (2) Inclusions and exclusions The term employer includes a public agency but does not include any labor organization (other than when acting as an employer) or anyone acting in the capacity of officer or agent of such labor organization. (3) Application with reference to other definitions The term employer shall be interpreted and applied in a manner that is consistent with the other definitions in this section and that incorporates the term employee , as defined in subsection (e), and the term employ , as defined in subsection (g). (4) Statutory employers in certain industries The term employer shall include any person, except a person excluded under paragraph (2), with respect to an individual described in subsection (e)(9) performing labor that is beneficial to the person, that is engaged in any of the following work: (A) Transportation, including any person that benefits from labor performed by individuals in the form of transportation in a motorized or unmotorized vehicle, by foot, or by any other means, including transportation network companies, technology platform companies, passenger transportation or food transportation companies, and cargo transportation companies. (B) Network dispatching, including any person that uses a digital network to connect individuals or entities seeking services or labor with individuals or entities seeking to provide services or labor, but not including any person who owns, controls, or manages— (i) a completely neutral physical or internet marketplace where the procurement of goods or services takes place between individuals who are completely independent from and free from any and all direction or control by the person owning, controlling, or managing the neutral marketplace, including such person having absolutely no role in the setting of prices or rates, in the assignment or referral of requests for goods or services to individuals who could potentially provide such goods or services, and in the acceptance or rejection of any requests for goods or services; and (ii) a labor organization hiring hall. . (B) Definition of employee Section 3(e) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 203(e) ), as amended by paragraph (2), is further amended by adding at the end the following: (9) Notwithstanding paragraph (1) or (6) of this subsection, subsection (d) (other than paragraph (4) of such subsection), or subsection (g), and except as provided in paragraphs (2), (3), (4), and (5), the term employee , with respect to an employer described in subsection (d)(4), shall include any individual performing labor that is beneficial to the employer, including— (A) with respect to transportation described in subparagraph (A) of such subsection, any individual who performs any portion of the labor included under such subparagraph, including individuals who perform labor in the form of engaging in transportation beneficial to transportation network companies, technology platform companies, passenger transportation or food transportation companies, or cargo transportation companies; and (B) with respect to network dispatching described in subparagraph (B) of such subsection, any individual who performs any portion of the services or labor included under such subparagraph, including providing the services or labor to the individuals or entities seeking such services or labor. . (C) Compensable time worked (i) In general The Fair Labor Standards Act of 1938 ( 29 U.S.C. 201 et seq.) is amended by inserting after section 8 the following: 9. Special requirements for certain workers (a) Determining compensable hours worked for transportation and network dispatching workers (1) Determining hours worked (A) In general For the purposes of sections 6 and 7, in determining the hours for which an employee described in section 3(e)(9) is employed, there shall be included any reasonable amount of time, as determined by the Secretary in accordance with subparagraph (C), spent on waiting for, receiving, reviewing, considering, accepting, and transporting oneself to fulfill an assignment or request to perform any portion of labor immediately before performing such portion of labor, including through a smartphone application, technology platform, dispatch network, or any other mechanism that is used to connect individuals or entities seeking services or labor with employees seeking to provide services or labor. (B) Rate of compensation Compensation paid for any reasonable amount of time described in subparagraph (A) shall be paid at a rate no less than the employee’s regular rate of pay. (C) Determination of amount of time The Secretary shall have discretion to determine a reasonable amount of time for purposes of subparagraph (A) given the specific circumstances involved, except that in all cases— (i) the minimum amount of the reasonable amount of time for the activities described in subparagraph (A) before accepting and performing a portion of labor shall be 3 minutes; and (ii) the maximum amount of such reasonable amount of time shall be 30 minutes. (D) Collective bargaining Notwithstanding subparagraph (A), no employer shall be determined to have violated section 6 or 7 by employing any employee described in section 3(e)(9) without providing such employee compensation for the reasonable amount of time under subparagraph (A) if such employee is so employed in pursuance of an agreement, made as a result of collective bargaining by a bona fide representative of employees for purposes of section 8(f) or (9)(a) of the National Labor Relations Act ( 29 U.S.C. 158(f) , 159(a)), that alters or waives the compensation requirements of this paragraph. (2) Information The Secretary shall have the authority to request, inspect, and pursue subpoenas for any information or data held by an employer that the Secretary determines to be relevant— (A) in determining the reasonable amount of time under paragraph (1)(A) for which an employee described in section 3(e)(9) should be compensated; (B) in determining an employee's regular rate of pay for purposes of paragraph (1)(B); or (C) for any other purpose related to this subsection. . (ii) Penalties Section 15(a)(2) is amended by inserting including violations due to failure to comply with section 9(a), after section 7, . (7) Misclassification enforcement through reclassification orders and stop work orders (A) In general Section 17 of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 217 ) is amended— (i) by striking The district courts and inserting (a) The district courts ; (ii) by inserting orders issued under subsection (b)(1) or (c)(1) or violations of before section 15, ; and (iii) by adding at the end the following: (b) Misclassification enforcement through reclassification orders (1) In general If the Secretary determines, after an investigation under section 11, that an employer has misclassified 1 or more individuals who are employees of the employer as not employees in violation of section 15(a)(6)— (A) the Secretary shall issue, not later than 24 hours after making such determination, an order against the employer requiring the employer to immediately classify the 1 or more individuals as employees of the employer; and (B) the employer shall immediately comply with the order issued under subparagraph (A) or shall otherwise be in violation of section 15(a)(6). (2) Orders An order issued under paragraph (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 contest the order. (B) Requests A request under subparagraph (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 determine whether to affirm, modify, or revoke the contested order. (4) Hearings and appeals Any person aggrieved by a determination of the Secretary under paragraph (3)(C)(ii) may— (A) request a hearing to appeal such determination to an administrative law judge; and (B) appeal an order of an administrative law judge under subparagraph (A) to a Federal or State court of competent jurisdiction. (5) Injunction proceedings The Secretary may seek an injunction proceeding under subsection (a) against any employer that violates an order issued under paragraph (1). A court shall issue such injunction if the Secretary has demonstrated it is just and proper. (6) Successfully disproving occurrence of misclassification (A) In general If an employer with respect to whom an order was issued under paragraph (1) successfully proves through a review under paragraph (3), or a hearing or appeal under paragraph (4), that the 1 or more individuals who were the subject of the order were not misclassified in violation of section 15(a)(6)— (i) the order issued under paragraph (1) shall cease to be in effect; (ii) the employer shall not be liable for any applicable unpaid minimum wages, unpaid overtime compensation, other damages, or civil penalties owed by the employer under section 16 with respect to the misclassification of such 1 or more individuals; and (iii) the Secretary of Labor, administrative law judge, or the court shall award (and the Secretary of the Treasury shall, in accordance with subparagraph (B), pay) to the employer 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 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. (c) Misclassification enforcement through stop work orders (1) In general In any case where an employer does not comply with a reclassification order issued by the Secretary under subsection (b)(1), with respect to 2 or more individuals who are misclassified in violation of section 15(a)(6), within 30 days of being served with the order, the Secretary shall issue— (A) subject to subparagraph (B), an order against the employer requiring the cessation of all business operations of such employer at the location of the violation; or (B) if an order described in subparagraph (A) has been previously issued against the employer by any Federal, State, or local agency for misclassifying an employee as not an employee in violation of section 15(a)(6), or an equivalent State or local law as determined by the Secretary, an order against the employer requiring the cessation of all business operations of such employer at all business locations of the employer, 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, 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 (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 paragraph (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 Secretary issues another order releasing the order issued under such paragraph upon a finding by the Secretary that the employer— (I) has corrected the violation of section 15(a)(6) 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 unpaid minimum wages, unpaid overtime compensation, other damages, and civil penalties owed by the employer under section 16. (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 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 contest the order. (B) Requests A request under subparagraph (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 determine whether to affirm, modify, or revoke the contested order. (4) Hearings and appeals Any person aggrieved by a determination of the Secretary under paragraph (3)(C)(ii) may— (A) request a hearing to appeal such determination to an administrative law judge; and (B) appeal an order of an administrative law judge under subparagraph (A) to a Federal or State court of competent jurisdiction. (5) Injunction proceedings The Secretary may seek an injunction proceeding under subsection (a) against any employer that violates an order issued under paragraph (1). A court shall issue such injunction if the Secretary has demonstrated it is just and proper. (6) Compensation for lost work (A) In general Subject to subparagraph (B), an employer with respect to whom an order is issued under paragraph (1) shall pay each employee of the employer, who loses compensation due to the work of such employee ceasing as a result of such order, 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 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 15(a)(6)— (i) the order issued under paragraph (1), and any order issued against the employer under subsection (b)(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 unpaid minimum wages, unpaid overtime compensation, other damages, or civil penalties owed by the employer under section 16 with respect to the misclassification of such 2 or more individuals; and (iii) the Secretary of Labor, administrative law judge, or the court shall award (and the Secretary of the Treasury shall, in accordance with subparagraph (B), pay) to the employer— (I) an amount equal to any demonstrable lost net profits resulting from the order, as demonstrated by clear and convincing evidence; and (II) 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 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 amounts, fees, or expenses awarded under subparagraph (A)(iii) from amounts available in the general fund of the Treasury. . (B) Penalties Section 16(e) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 216(e) ), as amended by paragraph (3)(C), is further amended by adding at the end the following: (8) Penalties for violating reclassification orders (A) Civil penalties Any person who violates a reclassification order issued by the Secretary under section 17(b)(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 17(b) 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 Secretary— (i) the court shall determine if, during the period between the issuance of such order and the conclusion of the proceeding, the employer violated such order by not classifying the 1 or more individuals as employees during that period; and (ii) if the court determines the employer so violated the order during that period— (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 damages in the amount determined under subclause (I), which damages shall be awarded to such individuals by the court. . (C) Conforming amendments Sections 12(b) and 16(b) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 212(b) and 216(b)) are amended by striking section 17 each place it appears and inserting section 17(a) . (8) Private attorneys general Section 16 of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 216 ), as amended by paragraph (7)(B), is further amended— (A) in subsection (b), by inserting after the third sentence the following: Any employer who violates a provision of this Act for which a civil penalty may be assessed by the Secretary under this Act may, in accordance with subsection (f), be liable to the employee or employees affected in the amount of the civil penalty. ; (B) in subsection (e)— (i) in paragraph (3), in the matter preceding subparagraph (A) of the second sentence, by inserting , except as provided in subsection (f)(3)(A), after may ; and (ii) in paragraph (5)— (I) in the first sentence, by inserting and as provided in subsection (f)(3)(B), after Except for civil penalties collected for violations of section 12 ; and (II) in the second sentence, by striking Civil penalties and inserting Except as provided in subsection (f)(3)(B), civil penalties ; and (C) by adding at the end the following: (f) Private right of action for penalties (1) In general Notwithstanding any other provision in this Act, an employee that is affected by a violation of a provision of this Act for which a civil penalty may be assessed by the Secretary under this Act may, subject to paragraph (2), bring a civil action in accordance with subsection (b) for the recovery of the amount of the penalty on behalf of the employee and any other employees similarly situated (subject to the requirements for being a party plaintiff under such subsection). (2) Notice (A) In general Prior to filing the civil action described in paragraph (1), the employee filing such action shall file with the Secretary a notice of— (i) the complaint of the employee; and (ii) the intention of the employee to file the action and recover the amount of the penalty and any other amount the employee is seeking under subsection (b) from the employer. (B) Notification by Secretary to employee (i) In general The Secretary shall, not later than 60 days after receiving the notice under subparagraph (A), notify the employee of whether the Secretary has assessed, is assessing, or plans to assess the civil penalty in accordance with this Act. (ii) Termination of employee right The right of an employee to bring an action under subsection (b) to recover a civil penalty under this subsection shall terminate upon the filing of a notification by the Secretary under clause (i) that the Secretary has assessed, is assessing, or plans to assess the civil penalty in accordance with this Act. (3) Treatment of penalties recovered by employees In a case in which the Secretary notifies the employee that the Secretary has not assessed, is not assessing, and plans not to assess the civil penalty (or fails to meet the required deadline for notifying the employee under paragraph (2)(B)(i))— (A) the second sentence of paragraph (3), and paragraph (5), of subsection (e) shall not apply with respect to the civil penalty sought by the employee; and (B) if the penalty is successfully recovered through a civil action by the employee, the employee and any other similarly situated employee (as applicable) shall retain the amount of the penalty in accordance with paragraph (4) (as applicable). (4) Multiple employees In a case in which an employee brings a civil action in any Federal or State court of competent jurisdiction under this subsection for the recovery of a civil penalty under this Act on behalf of the employee and other similarly situated employees— (A) the employee bringing the action shall be entitled to— (i) 100 percent of the amount of the penalty assessed for such employee; and (ii) 25 percent of the amount of the penalty assessed for similarly situated employees involved in the action; and (B) the court shall determine how to divide the remainder of the amount of the penalty assessed for similarly situated employees involved in the action equitably among such employees. (5) Arbitration (A) In general Notwithstanding any other provision of Federal law and except as provided in subparagraph (B), the right to bring a civil action under this subsection may not be waived, limited, or otherwise restricted by any contract or other agreement between an employee and an employer entered into before the events giving rise to the civil action under this subsection occurred, including any contract or other agreement to resolve disputes through arbitration. (B) Consent of Secretary No civil action brought under this subsection may be sent to or resolved through arbitration, regardless of whether all parties to the civil action have consented to arbitration, without the explicit consent of the Secretary for sending that specific action to arbitration. . (b) National Labor Relations Act (1) Strengthening employee test Section 2(3) of the National Labor Relations Act ( 29 U.S.C. 152(3) ) is amended— (A) by striking The term and inserting (A) The term ; (B) by striking employment, but shall not and inserting employment. Such term shall not ; and (C) by adding at the end the following: (B) (i) For purposes of this Act, and except as provided in the second sentence of subparagraph (A) and subparagraphs (C) and (E), an individual performing any labor for remuneration for a person shall be an employee employed by such person and not an independent contractor of the person, unless— (I) the individual is free from control and direction in connection with the performance of the labor, both under the contract for the performance of the labor and in fact; (II) the labor is performed outside the usual course of the business of the person; and (III) the individual is customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the labor performed. (ii) (I) Clause (i) is not a codification of the common law and shall not be interpreted to reflect, or to be limited or restricted by, common law interpretations regarding when an individual is an employee of another person. Clause (i) shall be considered complete as written, and any judicial or agency interpretation of such clause shall be limited to the explicit requirements of such clause. (II) The requirements of clause (i) shall not be in any way affected by any agreement, written 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) (i) Notwithstanding any contrary provisions in this paragraph or paragraph (2), 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 agreement, without regard to the legality or enforceability of the non-compete agreement, shall be evidence of control for purposes of subparagraph (B)(i)(I), but shall not by itself establish an employment relationship between such person and the individual. (ii) In this subparagraph, the term non-compete agreement means an agreement between a person and an individual who performs labor for such person that restricts the individual from performing, either during or after the individual performs labor for such person— (I) any labor for another person; (II) any labor for a specified period of time; (III) any labor in a specified geographical area; or (IV) any labor for another person that is similar to the labor such individual performed for the person that is a party to such agreement. . (2) Presumption of employee status Section 2(3) of the National Labor Relations Act ( 29 U.S.C. 152(3) ), as amended by paragraph (1), is further amended by adding at the end the following: (D) For purposes of this Act, an individual performing any labor for remuneration for a person shall be presumed to be an employee of the person, unless the party seeking to assert otherwise establishes by clear and convincing evidence that the individual is not an employee of the person in accordance with this paragraph. . (3) Misclassification as a standalone violation (A) In general Section 8(a) of the National Labor Relations Act ( 29 U.S.C. 158(a) ) is amended— (i) in paragraph (5), by striking the period at the end and inserting a semicolon; and (ii) by adding at the end the following: (6) to misclassify an employee of the employer, who is engaged in commerce or an industry affecting commerce, as not an employee of the employer for purposes of this Act; . (B) Incorporation to further violations Section 8(a) of the National Labor Relations Act ( 29 U.S.C. 158(a) ), as amended by subparagraph (A), is further amended by adding at the end the following: (7) for the purpose, in whole or in part, of facilitating, or evading detection of, a violation of this Act, including a violation of paragraph (6)— (A) to incorporate or form, or assist in the incorporation or formation of, a corporation, partnership, limited liability corporation, or other entity; or (B) to pay or collect a fee for use of a foreign or domestic corporation, partnership, limited liability corporation, or other entity; or . (C) Penalties Section 12 of the National Labor Relations Act ( 29 U.S.C. 162 ) is amended to read as follows: 12. Penalties (a) In general Any person who shall willfully resist, prevent, impede, or interfere with any member of the Board or any of its agents or agencies in the performance of duties pursuant to this Act shall be punished by a fine of not more than $5,000 or by imprisonment for not more than one year, or both. (b) Civil penalties for misclassification or incorporation To further violations (1) In general Any person who violates paragraph (6) or (7) of section 8(a) 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 percent of the net profits of the person for the year in which the person had the highest net profits out of all years in which the person was in such violation. (2) Repeated, or willful, and widespread violations If a violation of paragraph (6) or (7) of section 8(a) is repeated or willful, as described in paragraph (1)(B), and is widespread, as described in paragraph (1)(C), the higher penalty of the penalties described in such paragraphs shall apply. (3) Payment of penalties Any penalty assessed under paragraph (1) for a violation of paragraph (6) or (7) of section 8(a) shall be paid from an account of the person in such violation and not paid, or reimbursed, by any insurance plan that would indemnify the person from violations of such paragraph (6) or (7), respectively. If a person receives a payment from an insurance plan to indemnify the person from a violation of such paragraph, the person shall transfer the payment to the Board, in addition to the amount to be paid from the account of the person for the penalty. . (4) Protection from retaliation for being an employee Section 8(a)(4) of the National Labor Relations Act ( 29 U.S.C. 158(a)(4) ) is amended— (A) by striking employee because he has filed and inserting “employee because— (A) such employee has filed; ; (B) by striking Act; and inserting Act; or ; and (C) by adding at the end the following: (B) such employee— (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 employer for purposes of this Act and not an independent contractor; and (ii) was classified by the employer as an independent contractor prior to the date of enactment of the Worker Flexibility and Small Business Protection Act of 2020 ; . (5) Presumption of retaliation Section 8 of the National Labor Relations Act ( 29 U.S.C. 158 ) is amended by adding at the end the following: (h) Presumption of retaliation Any action taken against an employee within 90 days of the employee taking any action described in subsection (a)(4)(A), including taking any such action with respect to exercising the right of the employee pursuant to subsection (a)(6) to not be misclassified, shall establish a rebuttable presumption that the action is discrimination against the employee in violation of subsection (a)(4). . (6) Statutory employers in heavily misclassified industries (A) Definition of employer Section 2(2) of the National Labor Relations Act ( 29 U.S.C. 152(2) ) is amended to read as follows: (2) Employer (A) In general The term employer includes any person acting as an agent of an employer, directly or indirectly, but shall not include the United States or any wholly owned Government corporation, or any Federal Reserve Bank, or any State or political subdivision thereof, or any person subject to the Railway Labor Act, as amended from time to time, or any labor organization (other than when acting as an employer), or anyone acting in the capacity of officer or agent of such labor organization. (B) Statutory employers in certain industries The term employer shall include any person (except a person described as excluded from the term under subparagraph (A)), with respect to an individual described in paragraph (3)(E) performing labor that is beneficial to the person, that is engaged in any of the following work: (i) Transportation, including any person that benefits from labor performed by individuals in the form of transportation in a motorized or unmotorized vehicle, by foot, or by any other means, including transportation network companies, technology platform companies, passenger transportation or food transportation companies, and cargo transportation companies. (ii) Network dispatching, including any person that uses a digital network to connect individuals or entities seeking services or labor with individuals or entities seeking to provide services or labor, but not including any person who owns, controls or manages— (I) a completely neutral physical or internet marketplace where the procurement of goods or services takes place between individuals who are completely independent from and free from any and all direction or control by the person owning, controlling, or managing the neutral marketplace, including such person having absolutely no role in the setting of prices or rates, in the assignment or referral of requests for goods or services to individuals who could potentially provide such goods or services, and in the acceptance or rejection of any requests for goods or services; and (II) a labor organization hiring hall. . (B) Definition of employee Section 2(3) of the National Labor Relations Act ( 29 U.S.C. 152(3) ), as amended by paragraph (2), is further amended by adding at the end the following: (E) Notwithstanding subparagraphs (A) (except the second sentence of such subparagraph) and (B) of this paragraph or paragraph (2) (other than subparagraph (B) of such paragraph), and except as provided in the second sentence of such subparagraph (A), the term employee , with respect to an employer described in paragraph (2)(B), shall include any individual performing labor that is beneficial to the employer, including— (i) with respect to transportation described in clause (i) of such paragraph, any individual who performs any portion of the labor included under such clause, including individuals who perform labor in the form of engaging in transportation beneficial to transportation network companies, technology platform companies, passenger transportation or food transportation companies, or cargo transportation companies; and (ii) with respect to network dispatching described in clause (ii) of such paragraph, any individual who performs any portion of the labor included under such clause, including providing the services or labor described in such clause to the individuals or entities seeking such services or labor. . (7) Misclassification enforcement through reclassification orders and stop work orders (A) In general Section 10 of the National Labor Relations Act ( 29 U.S.C. 160 ) is amended by adding at the end the following: (n) Misclassification enforcement through reclassification orders (1) In general If a regional director, after an investigation under section 11, has reasonable cause to believe that an employer has misclassified 1 or more individuals who are employees of the employer as not employees in violation of section 8(a)(6) and that, regardless of whether a charge has been or will be filed, if charged a complaint would issue— (A) the regional director shall issue, not later than 24 hours after making such determination, an order against the employer requiring the employer to immediately classify the 1 or more individuals as employees of the employer; and (B) the employer shall immediately comply with the order issued under subparagraph (A) or shall otherwise be in violation of section 8(a)(6). (2) Orders An order issued under paragraph (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 regarding 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 for reconsideration with the General Counsel to contest the order. (B) Requests A request under subparagraph (A) shall be made in writing to the General Counsel 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 General Counsel shall determine whether to affirm, modify, or revoke the contested order. (4) Hearings and appeals Any person aggrieved by a determination of the General Counsel under paragraph (3)(C)(ii) may— (A) request a hearing on the merits before an Administrative Law Judge; (B) appeal the determination of an Administrative Law Judge under subparagraph (A) to the Board; and (C) appeal an order of the Board under subparagraph (B) to any court of appeals of the United States in the circuit wherein the misclassification in question was alleged to have been engaged in or wherein such person resides or transacts business, or to the United States Court of Appeals for the District of Columbia. (5) Temporary relief or restraining order The regional director issuing an order under paragraph (1) may seek, in any court described in paragraph (4)(C) against an employer that violates an order issued under paragraph (1), temporary relief or a restraining order to bring the employer into compliance with such order issued under paragraph (1). A court shall issue such temporary relief or restraining order if the regional director has demonstrated it is just and proper. (6) Successfully disproving occurrence of misclassification (A) In general If 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 1 or more individuals who were the subject of the order were not misclassified in violation of section 8(a)(6)— (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 Act with respect to the misclassification of such 1 or more individuals; and (iii) the General Counsel, the Administrative Law Judge, the Board, or the court (as applicable) shall award (and the Secretary of the Treasury shall, in accordance with subparagraph (B), pay) to the employer 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 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 General Counsel, the Administrative Law Judge, the Board, or the court, as applicable, pay any fees or expenses awarded under subparagraph (A)(iii) from amounts in the general fund of the Treasury. (o) Misclassification enforcement through stop work orders (1) In general In any case where a regional director has reasonable cause to believe that an employer has not complied with a reclassification order issued by a regional director under subsection (n)(1), with respect to 2 or more individuals who are misclassified, within 30 days of being served with the order, the regional director shall issue— (A) subject to subparagraph (B), an order against the employer requiring the cessation of all business operations of such employer at the location of the violation; or (B) if an order described in subparagraph (A) has been previously issued against the employer by any Federal, State, or local agency for misclassifying an employee as not an employee in violation of section 8(a)(6), or an equivalent State or local law as determined by the General Counsel, an order against the employer requiring the cessation of all business operations of such employer at all business locations of the employer, 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, 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 (ii) remain in effect— (I) during any review under paragraph (3) with respect to such order or hearing and appeal of such order under paragraph (4); and (II) until the regional director 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 General Counsel or the Board or held unlawful or set aside by a court) shall remain in effect until the regional director issues another order releasing the order issued under paragraph (1) upon a finding by the regional director that the employer— (I) has corrected the violation of section 8(a)(6) 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 Act. (ii) Reinstatement If, at any time after the regional director 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 regional director shall reinstate the order issued 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 for reconsideration by the General Counsel to contest the order. (B) Requests A request under subparagraph (A) shall be made in writing to the General Counsel 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 General Counsel shall determine whether to affirm, modify, or revoke the contested order. (4) Hearings and appeals Any person aggrieved by a determination of the General Counsel under paragraph (3)(C)(ii) may— (A) request a hearing on the merits before an Administrative Law Judge; (B) appeal a determination by an Administrative Law Judge under subparagraph (A) to the Board; and (C) appeal an order of the Board under subparagraph (B) to any court of appeals of the United States in the circuit wherein the misclassification in question was alleged to have been engaged in or wherein such person resides or transacts business, or to the United States Court of Appeals for the District of Columbia. (5) Temporary relief or restraining orders The regional director may seek, in any court described in paragraph (4)(C) against an employer that violates an order issued under paragraph (1), temporary relief or a restraining order to bring the employer into compliance with such order. A court shall issue such temporary relief or restraining order if the regional director has demonstrated it is just and proper. (6) Compensation for lost work (A) In general Subject to subparagraph (B), an employer with respect to whom an order is issued under paragraph (1) shall pay each employee of the employer, who loses compensation due to the work of such employee ceasing as a result of such order, 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 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 8(a)(6)— (i) the order issued under paragraph (1), and any order issued against the employer under subsection (n)(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 Act with respect to the misclassification of such 2 or more individuals; and (iii) the General Counsel, the Administrative Law Judge, the Board, or the court, as applicable, shall award (and the Secretary of the Treasury shall, in accordance with subparagraph (B), pay) to the employer— (I) the amount equal to any demonstrable lost net profits resulting from the order, as demonstrated by clear and convincing evidence; and (II) 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 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 General Counsel, the Administrative Law Judge, the Board, or the 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 12 of the National Labor Relations Act ( 29 U.S.C. 162 ), as amended by paragraph (3)(C), is further amended by adding at the end the following: (c) Penalties for violations of reclassification orders (1) Civil penalties Any person who violates a reclassification order issued by a regional director under section 10(n)(1) shall be subject to a civil penalty of not less than $5,000 per day, with each day constituting a separate offense. (2) Additional damages In any case where an employer contests a reclassification order issued by a regional director under paragraph (1) of section 10(n) in a review under paragraph (3) of such section, a hearing under paragraph (4)(A) of such section, an appeal to the Board under paragraph (4)(B) of such section, and a subsequent judicial proceeding under paragraph (4)(C) of such section and a court rules in favor of the regional director— (A) the court shall determine if, during the period between the issuance of the order and the conclusion of the proceeding, the employer violated such order by not classifying the 1 or more individuals as employees during that period; and (B) if the court determines the employer so violated the order during that period— (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 damages in the amount determined under clause (i), which damages shall be awarded to such individuals by the court. . (c) Occupational Safety and Health Act of 1970 (1) Strengthening employee test Section 3(6) of the Occupational Safety and Health Act of 1970 ( 29 U.S.C. 652(6) ) is amended— (A) by striking The term and inserting (A) The term ; and (B) by adding at the end the following: (B) (i) For purposes of this Act, including any standard, rule, regulation, or order promulgated pursuant to this Act, except as provided in subparagraphs (C) and (E), an individual performing any labor for remuneration for a person shall be an employee employed by such person and not an independent contractor of the person, unless— (I) the individual is free from control and direction in connection with the performance of the labor, both under the contract for the performance of the labor and in fact; (II) the labor is performed outside the usual course of the business of the person; and (III) the individual is customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the labor performed. (ii) Clause (i) is not a codification of the common law and shall not be interpreted to reflect, or to be limited or restricted by, common law interpretations regarding when an individual is an employee of another person. Clause (i) shall be considered complete as written, and any judicial or agency interpretation of such clause shall be limited to the explicit requirements of such clause. (iii) The requirements of clause (i) shall not be in any way affected by any agreement, written 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) (i) Notwithstanding any contrary provisions in this paragraph or paragraph (5), 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 agreement, without regard to the legality or enforceability of the non-compete agreement, shall be evidence of control for purposes of subparagraph (B)(i)(I), but shall not by itself establish an employment relationship between such person and the individual. (ii) In this subparagraph, the term non-compete agreement means an agreement between a person and an individual who performs labor for such person that restricts the individual from performing, either during or after the individual performs labor for such person— (I) any labor for another person; (II) any labor for a specified period of time; (III) any labor in a specified geographical area; or (IV) any labor for another person that is similar to the labor such individual performed for the person that is a party to such agreement. . (2) Presumption of employee status Section 3(6) of the Occupational Safety and Health Act of 1970 ( 29 U.S.C. 652(6) ), as amended by paragraph (1), is further amended by adding at the end the following: (D) For purposes of this Act, including any standard, rule, regulation, or order promulgated pursuant to this Act, an individual performing any labor for remuneration for a person shall be presumed to be an employee of the person, unless the party seeking to assert otherwise establishes by clear and convincing evidence that the individual is not an employee in accordance with this paragraph. . (3) Misclassification as a standalone violation (A) In general Section 5(a) of the Occupational Safety and Health Act of 1970 ( 29 U.S.C. 654(a) ) is amended— (i) in paragraph (2), by striking the period at the end and inserting a semicolon; and (ii) by adding at the end the following: (3) shall not misclassify an employee of the employer as not an employee of the employer for purposes of this Act, including any standard, rule, regulation, or order promulgated pursuant to this Act; and . (B) Incorporation to further violations Section 5(a) of the Occupational Safety and Health Act of 1970 ( 29 U.S.C. 654(a) ), as amended by subparagraph (A), is further amended by adding at the end the following: (4) shall not, for the purpose, in whole or in part, of facilitating, or evading detection of, a violation of this Act, including a violation of paragraph (3) or any standard, rule, regulation, or order promulgated pursuant to this Act— (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 foreign or domestic corporation, partnership, limited liability corporation, or other entity. . (C) Penalties Section 17 of the Occupational Safety and Health Act of 1970 ( 29 U.S.C. 666 ) is amended— (i) by redesignating subsections (j), (k), and (l) as subsections (o), (p), and (q), respectively; and (ii) by inserting after subsection (i) the following: (j) Civil penalties for misclassification or incorporation To further violations (1) In general Any person who violates paragraph (3) or (4) of section 5(a) 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 percent of the net profits of the person for the year in which the person had the highest net profits out of all years in which the person was in such violation. (2) Repeated, or willful, and widespread violations If a violation of paragraph (3) or (4) of section 5(a) is repeated or willful, as described in paragraph (1)(B), and is widespread, as described in paragraph (1)(C), the higher penalty of the penalties described in such paragraphs shall apply. (3) Payment of penalties Any penalty assessed under paragraph (1) for a violation of paragraph (3) or (4) of section 5(a) shall be paid from an account of the person in such violation and not paid, or reimbursed, by any insurance plan that would indemnify the person from violations of such paragraph (3) or (4), respectively. If a person receives a payment from an insurance plan to indemnify the person from a violation of such paragraph, the person shall transfer the payment to the Secretary, in addition to the amount to be paid from the account of the person for the penalty. . (4) Protection from retaliation for being an employee Section 11(c)(1) of the Occupational Safety and Health Act of 1970 ( 29 U.S.C. 660(c)(1) ) is amended— (A) by striking because such employee and inserting “because— (A) such employee; ; (B) by striking afforded by this Act. and inserting afforded by this Act; or ; and (C) by adding at the end the following: (B) such employee— (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 person for purposes of this Act, including any standard, rule, regulation, or order promulgated pursuant to this Act, and not an independent contractor; and (ii) was classified by the person as an independent contractor prior to the date of enactment of the Worker Flexibility and Small Business Protection Act of 2020 . . (5) Rules regarding unlawful discharge or discrimination Section 11(c) of the Occupational Safety and Health Act of 1970 ( 29 U.S.C. 660(c) ) is amended by adding at the end the following: (4) Presumption of retaliation Any action taken by a person described in paragraph (1)(A) against an employee within 90 days of the employee taking any action described in such paragraph, including taking any such action with respect to exercising the right of the employee pursuant to section 5(a)(3) to not be misclassified, shall establish a rebuttable presumption that the action is discrimination against the employee in violation of paragraph (1). (5) Motivating factor Unlawful discharge or other discrimination against an employee 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. . (6) Statutory employers in heavily misclassified industries (A) Definition of employer Section 3(5) of the Occupational Safety and Health Act of 1970 ( 29 U.S.C. 652(5) ) is amended to read as follows: (5) Employer (A) In general The term employer means a person engaged in a business affecting commerce who has employees. (B) Exclusion The term employer does not include the United States (not including the United States Postal Service) or any State or political subdivision of a State. (C) Statutory employers in certain industries The term employer shall include any person (except as provided in subparagraph (B)), with respect to an individual described in paragraph (6)(E) performing labor that is beneficial to the person, that is engaged in any of the following work: (i) Transportation, including any person that benefits from labor performed by individuals in the form of transportation in a motorized or unmotorized vehicle, by foot, or by any other means, including transportation network companies, technology platform companies, passenger transportation or food transportation companies, and cargo transportation companies. (ii) Network dispatching, including any person that uses a digital network to connect individuals or entities seeking services or labor with individuals or entities seeking to provide services or labor, but not including any person who owns, controls, or manages— (I) a completely neutral physical or internet marketplace where the procurement of goods or services takes place between individuals who are completely independent from and free from any and all direction or control by the person owning, controlling, or managing the neutral marketplace, including such person having absolutely no role in the setting of prices or rates, in the assignment or referral of requests for goods or services to individuals who could potentially provide such goods or services, and in the acceptance or rejection of any requests for goods or services; and (II) a labor organization hiring hall. . (B) Definition of employee Section 3(6) of the Occupational Safety and Health Act of 1970 ( 29 U.S.C. 652(6) ), as amended by paragraph (2), is further amended by adding at the end the following: (E) Notwithstanding subparagraphs (A) and (B) of this paragraph or paragraph (5) (other than subparagraph (C) of such paragraph), the term employee , with respect to an employer described in paragraph (5)(C), shall include any individual performing labor that is beneficial to the employer, including— (i) with respect to transportation described in clause (i) of such paragraph, any individual who performs any portion of the labor included under such clause, including individuals who perform labor in the form of engaging in transportation beneficial to transportation network companies, technology platform companies, passenger transportation or food transportation companies, or cargo transportation companies; and (ii) with respect to network dispatching described in clause (ii) of such paragraph, any individual who performs any portion of the labor included under such clause, including providing the services or labor described in such clause to the individuals or entities seeking such services or labor. . (7) Misclassification enforcement through reclassification orders and stop work orders (A) In general The Occupational Safety and Health Act of 1970 ( 29 U.S.C. 651 et seq.) is amended by inserting after section 13 ( 29 U.S.C. 662 ) the following: 13A. Misclassification enforcement through reclassification orders and stop work orders (a) Reclassification orders (1) In general If the Secretary determines, after an investigation under section 8, that an employer has misclassified 1 or more individuals who are employees of the employer as not employees in violation of section 5(a)(3)— (A) the Secretary shall issue, not later than 24 hours after making such determination, an order against the employer requiring the employer to immediately classify the 1 or more individuals as employees of the employer; and (B) the employer shall immediately comply with the order issued under subparagraph (A) or shall otherwise be in violation of section 5(a)(3). (2) Orders An order issued under paragraph (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 contest the order. (B) Requests A request under subparagraph (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 determine whether to affirm, modify, or revoke the contested order. (4) Hearings and appeals Any person aggrieved by a determination of the Secretary under paragraph (3)(C)(ii) may— (A) request a hearing to appeal such determination to an administrative law judge; and (B) appeal an order of an administrative law judge under subparagraph (A) to any United States court of appeals for the circuit in which the violation is alleged to have occurred or where the employer has its principal office, or in the Court of Appeals for the District of Columbia Circuit. (5) Appropriate relief The Secretary may seek appropriate relief, in a court described in paragraph (4)(B), to restrain any employer that violates an order issued under paragraph (1). A court shall issue such appropriate relief if the Secretary has demonstrated it is just and proper. (6) Successfully disproving occurrence of misclassification (A) In general If an employer with respect to whom an order was issued under paragraph (1) successfully proves through a review under paragraph (3), or a hearing or appeal under paragraph (4), that the 1 or more individuals who were the subject of the order were not misclassified in violation of section 5(a)(3)— (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 Act (including any standard, rule, regulation, or order promulgated pursuant to this Act) with respect to the misclassification of such 1 or more individuals; and (iii) the Secretary, administrative law judge, or the court, as applicable, shall award (and the Secretary of Labor shall, in accordance with subparagraph (B), pay) to the employer 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 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 a 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 employer does not comply with a reclassification order issued by the Secretary under subsection (a)(1), with respect to 2 or more individuals who are misclassified, within 30 days of being served with the order, the Secretary shall issue— (A) subject to subparagraph (B), an order against the employer requiring the cessation of all business operations of such employer at the location of the violation; or (B) if an order described in subparagraph (A) has been previously issued against the employer by any Federal, State, or local agency for misclassifying an employee as not an employee in violation of section 5(a)(3), or an equivalent State or local law as determined by the Secretary, an order against the employer requiring the cessation of all business operations of such employer at all business locations of the employer, 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, 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 (ii) remain in effect— (I) during any review conducted under paragraph (3) with respect to such order and any hearing and appeal of such order under paragraph (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 Secretary issues another order releasing the order issued under such paragraph upon a finding by the Secretary that the employer— (I) has corrected the violation of section 5(a)(3) 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 Act, including any standard, rule, regulation, or order promulgated pursuant to this Act. (ii) Reinstatement If, at any time after the Secretary issues a release order under subparagraph (A), the employer 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 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 contest the order. (B) Requests A request under subparagraph (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 determine whether to affirm, modify, or revoke the contested order. (4) Hearings and appeals Any person aggrieved by a determination of the Secretary under paragraph (3)(C)(ii) may— (A) request a hearing to appeal such determination to an administrative law judge; and (B) appeal an order of an administrative law judge under subparagraph (A) to any United States court of appeals for the circuit in which the violation is alleged to have occurred or where the employer has its principal office, or in the Court of Appeals for the District of Columbia Circuit. (5) Appropriate relief The Secretary may seek appropriate relief, in a court described in paragraph (4)(B), to restrain any employer that violates an order issued under paragraph (1). A court shall issue such appropriate relief if the Secretary has demonstrated it is just and proper. (6) Compensation for lost work (A) In general Subject to subparagraph (B), an employer with respect to whom an order is issued under paragraph (1) shall pay each employee of the employer, who loses compensation due to the work of such employee ceasing as a result of such order, 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. (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 5(a)(3)— (i) the order issued under paragraph (1), and any order issued against the employer 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 Act (including any standard, rule, regulation, or order promulgated pursuant to this Act) with respect to the misclassification of such 2 or more individuals; and (iii) the Secretary of Labor, administrative law judge, or the court, shall award (and the Secretary of the Treasury shall, in accordance with subparagraph (B), pay) to the employer— (I) an amount equal to any demonstrable lost net profits resulting from the order, as demonstrated by clear and convincing evidence; and (II) 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 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 amounts, fees, or expenses awarded under subparagraph (A)(iii) from amounts available in the general fund of the Treasury . . (B) Penalties Section 17 of the Occupational Safety and Health Act of 1970 ( 29 U.S.C. 666 ), as amended by paragraph (3)(C), is further amended by inserting after subsection (j) the following: (k) Penalties for violations of reclassification orders (1) Civil penalties Any person who violates a reclassification order issued by the Secretary under section 13A(a)(1) shall be subject to a civil penalty of not less than $5,000 per day, with each day constituting a separate offense. (2) Additional damages In any case where an employer contests a reclassification order issued by the Secretary under paragraph (1) of section 13A(a) in a review under paragraph (3) of such section, hearing under paragraph (4)(A) of such section, and subsequent judicial proceeding under paragraph (4)(B) of such section and a court rules in favor of the Secretary— (A) the court shall determine if, during the period between the issuance of the order and the conclusion of the proceeding, the employer violated such order by not classifying the 1 or more individuals as employees during that period; and (B) if the court determines the employer so violated the order during that period— (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 damages in the amount determined under clause (i), which damages shall be awarded to such individuals by the court. . (d) Federal Mine Safety and Health Act of 1977 (1) Strengthening employee test The Federal Mine Safety and Health Act of 1977 ( 30 U.S.C. 801 et seq.) is amended by inserting after section 4 ( 30 U.S.C. 803 ) the following: 4A. Employee test (a) In general For purposes of this Act, including any mandatory health or safety standard, rule, order, or regulation promulgated pursuant to this Act, and except as provided in subsection (c), an individual performing any labor in a coal or other mine for remuneration for a person shall be an employee employed by such person and not an independent contractor of the person, unless— (1) the individual is free from control and direction 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 the person; and (3) the individual is customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the labor performed. (b) Clarifications (1) Relationship with common law Subsection (a) is not a codification of the common law and shall not be interpreted to reflect, or to be limited or restricted by, common law interpretations regarding when an individual is an employee of another person. Subsection (a) shall be considered complete as written, and any judicial or agency interpretation of such subsection shall be limited to the explicit requirements of such subsection. (2) Impact of written or other agreements The requirements of subsection (a) shall not be in any way affected by any agreement, written 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 contrary 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 person, 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 agreement In this subsection, the term non-compete agreement means an agreement between a person and an individual who performs labor for such person that restricts the individual from performing, either 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 agreement. . (2) Presumption of employee status Section 4A of the Federal Mine Safety and Health Act of 1977, as added by paragraph (1), is further amended by adding at the end the following: (d) Presumption of employee status For purposes of this Act, including any mandatory health or safety standard, rule, order, or regulation promulgated pursuant to this Act, an individual performing any labor in a coal or other mine for remuneration for a person shall be presumed to be an employee of the person, unless the party seeking to assert otherwise establishes by clear and convincing evidence that the individual is not an employee in accordance with this section. . (3) Misclassification as a standalone violation (A) In general Title I of the Federal Mine Safety and Health Act of 1977 ( 30 U.S.C. 811 et seq.) is amended by adding at the end the following: 117. Misclassification; incorporation to further violations (a) In general No operator of a coal or other mine shall misclassify an employee of the operator performing labor in a coal or other mine for the operator as not an employee of the person for purposes of this Act, including any mandatory health or safety standard, rule, order, or regulation promulgated pursuant to this Act. . (B) Incorporation to further violations Section 117 of the Federal Mine Safety and Health Act of 1977, as added by subparagraph (A), is amended by adding 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 mandatory health or safety standard, rule, order, or regulation promulgated pursuant to this Act— (1) incorporate or form, or assist in the incorporation 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 110 of the Federal Mine Safety and Health Act of 1977 ( 30 U.S.C. 820 ) is amended— (i) by redesignating subsections (i) through (l) as subsections (l) through (o), respectively; and (ii) by inserting after subsection (h) the following: (i) Penalties for misclassification and incorporation To further violations (1) In general Any operator of a coal or other mine who violates section 117 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 percent of the net profits of the operator for the year in which the operator had the highest net profits out of all years in which the operator was in such violation. (2) Repeated, or willful, and widespread violations If a violation of section 117 is repeated or willful, as described in paragraph (1)(B), and is widespread, as described in paragraph (1)(C), the higher penalty of the penalties described in such paragraphs shall apply. (3) Payment of penalties Any penalty assessed under paragraph (1) for a violation of section 117 shall be paid from an account of the operator in such violation and not paid, or reimbursed, by any insurance plan that would indemnify the operator from violations of such section. If an operator of a coal or other mine receives a payment from an insurance plan to indemnify the person from a violation of such section, the operator shall transfer the payment to the Secretary, in addition to the amount to be paid from the account of the operator for the penalty. . (4) Protection from retaliation for being an employee Section 105(c)(1) of the Federal Mine Safety and Health Act of 1977 ( 30 U.S.C. 815(c)(1) ) is amended— (A) by striking No person and inserting (A) No person ; and (B) by adding at the end the following: (B) No person shall discharge or in any manner discriminate against or cause to be discharged or cause discrimination against or otherwise interfere with the exercise of the statutory rights of any miner, or representative of miners, in any coal or other mine subject to this Act, because such miner— (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 person for purposes of this Act, including any mandatory health or safety standard, rule, order, or regulation promulgated pursuant to this Act, and not as an independent contractor; and (ii) was classified by the person as an independent contractor prior to the date of enactment of the Worker Flexibility and Small Business Protection Act of 2020 . . (5) Rules regarding unlawful discharge or discrimination Section 105(c) of the Federal Mine Safety and Health Act of 1977 ( 30 U.S.C. 815(c) ) is amended by adding at the end the following: (4) Presumption of retaliation Any action taken by a person described in paragraph (1)(A) against any miner, representative of miners, or applicant for employment in any coal or other mine subject to this Act, within 90 days of the miner, representative, or applicant taking any action described in such paragraph, including taking any such action with respect to exercising the right of an employee pursuant to section 117(a) to not be misclassified, shall establish a rebuttable presumption that the action is discrimination against the miner, representative, or applicant in violation of paragraph (1). (5) Motivating factor Unlawful discharge or discrimination under paragraph (1) against a miner, representative of miners, or applicant for employment in any coal or other mine subject to this Act 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 discrimination, even if such discharge or discrimination was also motivated by other factors. . (6) Misclassification enforcement through reclassification orders and stop work orders (A) In general The Federal Mine Safety and Health Act of 1977 ( 30 U.S.C. 801 et seq.) is amended by inserting after section 108 ( 30 U.S.C. 818 ) the following: 108A. Misclassification enforcement through reclassification orders and stop work orders (a) Reclassification orders (1) In general If the Secretary determines, after an investigation under section 103, that an operator of a coal or other mine has misclassified 1 or more individuals who are employees performing labor for the operator in a coal or other mine as not employees in violation of section 117(a)— (A) the Secretary shall issue, not later than 24 hours after making such determination, an order against the operator requiring the operator to immediately classify the 1 or more individuals as employees of the operator; and (B) the operator shall immediately comply with the order issued under subparagraph (A) or otherwise be in violation of section 117(a). (2) Orders An order issued under paragraph (1) shall— (A) be effective at the time at which the order is served upon the operator, which may be accomplished by the posting of a copy of the order in a conspicuous location at the place of business of the operator; and (B) remain in effect during any review conducted under paragraph (3) and during any hearing and appeal of such order under paragraph (4). (3) Review for reconsideration (A) In general An operator 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 subparagraph (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 determine whether to affirm, modify, or revoke the contested order. (4) Hearings and appeals Any person aggrieved by a determination of the Secretary under paragraph (3)(C)(ii) may— (A) request a hearing to appeal such determination to an administrative law judge; and (B) appeal an order of an administrative law judge under subparagraph (A) to the United States Court of Appeals for the District of Columbia Circuit or the circuit wherein such person resides or has their principal place of business. (5) Relief The Secretary may seek, in a court (including circuit) described in paragraph (4)(B), relief through a civil action under section 108(a) against any operator of a coal or other mine that violates an order issued under paragraph (1). A court shall issue such relief if the Secretary has demonstrated it is just and proper. (6) Successfully disproving occurrence of misclassification (A) In general If an operator with respect to whom an order was issued under paragraph (1) successfully proves through a review under paragraph (3), or a hearing or appeal proceeding under paragraph (4), that the 1 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) 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 regulation promulgated pursuant to this Act) with respect to the misclassification of such 1 or more individuals; and (iii) the Secretary of Labor, administrative law judge, or the court, as applicable, shall award (and the Secretary of the Treasury shall, in accordance with subparagraph (B), pay) to the operator 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 operator 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 operator of a coal or other mine does not comply with a reclassification order issued by the Secretary under subsection (a)(1), with respect to 2 or more individuals who are misclassified in violation of section 117(a), within 30 days of being served the order, the Secretary shall issue— (A) subject to subparagraph (B), an order against the operator requiring the cessation of all business operations of such operator at the location of the violation; or (B) if an order described in subparagraph (A) has been previously issued against the operator by any Federal, State, or local agency for misclassifying an employee performing labor for the operator in a coal or other mine as not an employee in violation of section 117(a), or an equivalent State or local law as determined by the Secretary, an order against the operator requiring the cessation of all business operations of such operator at all business locations of the operator, 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 operator, which may be accomplished by the posting of a copy of the order in a conspicuous location at the place of business of the operator; 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 paragraph (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 Secretary issues another order releasing the order issued under such paragraph upon a finding by the Secretary that the operator— (I) has corrected the violation of section 117(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, damages, and civil penalties owed by the operator under this Act, including any mandatory health or safety standard, rule, order, or regulation promulgated pursuant to this Act. (ii) Reinstatement If, at any time after the Secretary issues a release order under paragraph (1), the operator 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 operator is in compliance with such terms. (3) Review for reconsideration (A) In general An operator of a coal or other mine 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 subparagraph (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 determine whether to affirm, modify, or revoke the contested order. (4) Hearing and appeals Any person aggrieved by a determination of the Secretary under paragraph (3)(C)(ii) may— (A) appeal such determination to an administrative law judge; and (B) appeal an order of an administrative law judge under subparagraph (A) to the United States Court of Appeals for the District of Columbia Circuit or the circuit wherein such person resides or has their principal place of business. (5) Relief The Secretary may seek, in any court (including circuit) described in paragraph (4)(B), relief through a civil action under section 108(a) against any operator of a coal or other mine that violates an order issued under paragraph (1). A court shall issue such relief if the Secretary has demonstrated it is just and proper. (6) Compensation for lost work (A) In general Subject to subparagraph (B), an operator of a coal or other mine with respect to whom an order is issued under paragraph (1) shall pay each miner who loses compensation due to the work of such miner ceasing as a result of such order, the compensation that would be owed to such miner 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 miner 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 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 117(a)— (i) the order issued under paragraph (1), and any order issued against the operator 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 regulation promulgated pursuant to this Act) with respect to the misclassification of such 2 or more individuals; and (iii) the Secretary of Labor, administrative 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 demonstrable 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 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 110 of the Federal 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 separate 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 and the conclusion of the proceeding, the operator 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 Worker Protection Act (1) Strengthening employee test The Migrant and Seasonal Agricultural Worker Protection 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: 4. Employee test (a) In general For purposes of this Act, including 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 contractor of the person, unless— (1) the individual is free from control and direction 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, profession, or business of the same nature as that involved in the service or activity performed. (b) Clarification (1) Relationship with common law Subsection (a) is not a codification of the common law and shall not be interpreted to reflect, or to be limited or restricted by, common law interpretations regarding when an individual is an employee of another person. Subsection (a) shall be considered complete as written, and any judicial or agency interpretation of such subsection shall be limited to the explicit requirements of such subsection. (2) Impact of written or other agreements The requirements of subsection (a) shall not be in any way affected by any agreement, written 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 contrary 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 person, 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 agreement In this subsection, the term non-compete agreement means an agreement between a person and an individual who performs labor for such person that restricts the individual from performing, either 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 agreement. . (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 following: (d) Presumption of employee status For purposes of this Act, including any regulation under this Act, 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 presumed to be an employee employed in agricultural employment of the person, unless the party seeking 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 violation (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: 405. Misclassification; incorporation to further violations (a) In general No agricultural employer, agricultural association, or farm labor contractor shall misclassify a migrant agricultural worker or seasonal agricultural 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 violations Section 405 of the Migrant and Seasonal Agricultural Worker Protection Act, as added by subparagraph (A), is amended by adding 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 incorporation 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 Protection Act ( 29 U.S.C. 1853(a) ) is amended— (i) in paragraph (1), by striking paragraph (2) and inserting paragraphs (2), (3), (4), and (5) ; and (ii) by adding at the end the following: (3) Penalties for misclassification and incorporation to further violations (A) In general Any person who violates section 405 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 person for the year in which the person had the highest net profits out of all years in which the person was in such violation. (B) Repeated, or willful, and widespread violations If a violation of section 405 is repeated or willful, as described in subparagraph (A)(ii), and is widespread, as described in subparagraph (A)(iii), the higher penalty of the penalties described in such subparagraphs shall apply. (C) Payment of penalties Any penalty assessed under subparagraph (A) for a violation of section 405 shall be paid from an account of the person in such violation and not paid, or reimbursed, by any insurance plan that would indemnify the person from violations of 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 account of the person for the penalty. . (4) Protection from retaliation for being an employee Part A of title V of the Migrant 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 inserting (1) No person ; and (ii) by adding at the end the following: (2) No person shall intimidate, threaten, restrain, coerce, blacklist, discharge, or in any manner discriminate against any migrant agricultural worker or seasonal agricultural worker because such worker— (A) is required to be classified as employed in agricultural employment by the person for purposes of this Act, including any regulation under this Act, and not as an independent contractor; and (B) was classified by the person as an independent contractor prior to the date of enactment of the Worker Flexibility and Small Business Protection 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 action 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, including taking any such action with respect to exercising the right pursuant to section 405(a) to not be misclassified, shall establish a rebuttable presumption that the action is discrimination against the worker in violation of subsection (a). (2) Motivating factor Unlawful discrimination, including by intimidation, threat, restraint, coercion, blacklisting, or discharge as described in subsection (a), against a migrant agricultural worker or seasonal agricultural worker under such subsection, is established when the complaining party demonstrates that one or more actions or the classification described in such subsection was a motivating 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 Protection Act ( 29 U.S.C. 1851 et seq.), as amended by paragraph (5), is further amended by adding at the end the following: 508. Misclassification enforcement through reclassification orders and stop work orders (a) Reclassification orders (1) In general If the Secretary determines, after an investigation under section 512, that an agricultural employer, agricultural association, or farm labor contractor has misclassified 1 or more individuals who are migrant agricultural workers or seasonal agricultural workers employed by the employer, association, or contractor as not such workers employed by such employer, association, or contractor 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 contractor shall immediately comply with the order issued under subparagraph (A) or shall otherwise be in violation of section 405(a). (2) Orders An order issued under paragraph (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 conspicuous 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 and during any hearing and appeal of such order under paragraph (4). (3) Review for reconsideration (A) In general An agricultural employer, 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 subparagraph (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 determine whether to affirm, modify, or revoke the contested order. (4) Hearings and appeals Any person aggrieved by a determination of the Secretary under paragraph (3)(C)(ii) may— (A) request a hearing to appeal such determination 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 described in paragraph (4)(B) for temporary or permanent 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 Secretary has demonstrated it is just and proper. (6) Successfully disproving occurrence of misclassification (A) In general If an agricultural employer, agricultural association, or farm labor 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 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 contractor shall not be liable for any applicable back pay, damages, or civil penalties owed by the employer, association, or contractor under this Act (including any regulation under this Act) with respect to the misclassification of such 1 or more individuals; and (iii) the Secretary of Labor, administrative law judge, or court, as applicable, shall award (and the Secretary of the Treasury shall, in accordance with subparagraph (B), pay) to the employer, association, or contractor 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 employer, association, 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 agricultural employer, agricultural association, or farm labor contractor does not comply with a reclassification 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 Secretary shall issue— (A) subject to subparagraph (B), an order against the employer, association, or contractor 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 employer, association, or contractor by any Federal, 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 contractor 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 operations of such employer, association, or contractor 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, association, or 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 employer, association, or contractor; 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 paragraph (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 Secretary 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, damages, and civil penalties owed by the employer, association, or contractor 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, association, or 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 employer, association, or contractor is in compliance with such terms. (3) Review for reconsideration (A) In general An agricultural employer, 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 subparagraph (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 determine whether to affirm, modify, or revoke the contested order. (4) Appeals Any person aggrieved by a determination of the Secretary under paragraph (3)(C)(ii) may— (A) appeal such determination 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 a court described in paragraph (4)(B) for temporary or permanent 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 Secretary has demonstrated it is just and proper. (6) Compensation for lost work (A) In general Subject to subparagraph (B), an agricultural employer, agricultural association, or farm labor contractor with respect to whom an order is issued under paragraph (1) shall pay each migrant agricultural worker or seasonal agricultural worker employed by the employer, association, or contractor, 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. (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) 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 405(a)— (i) the order issued under paragraph (1), and any order issued against the employer, association, or contractor under subsection (a)(1), with respect to such 2 or more individuals, shall cease to be in effect; (ii) the employer, association, or contractor shall not be liable for any applicable back pay, damages, or civil penalties owed by the employer, association, or contractor under this Act (including any regulation under this Act) with respect to the misclassification of such 2 or more individuals; and (iii) the Secretary of Labor, administrative law judge, or court shall award (and the Secretary of the Treasury shall, in accordance with subparagraph (B), pay) to the employer, association, or contractor— (I) an amount equal to any demonstrable lost net profits resulting from the order, as demonstrated by clear and convincing evidence; and (II) 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 employer, 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 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 Protection 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 reclassification orders (A) Civil penalties Any person who violates a reclassification order issued by the Secretary under section 508(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 agricultural employer, agricultural association, or farm labor contractor contests a reclassification order issued under paragraph (1) of section 508(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 in such proceeding rules in favor of the Secretary— (i) the court shall determine if, during 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 employer, association, or contractor so violated 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 damages in the amount determined under subclause (I), which damages shall be awarded to such individuals by the court. . (f) Davis-Bacon Act (1) Strengthening employee test Subchapter 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 mechanic performing any labor under a contract or subcontract to which this subchapter applies shall be an employee employed by the contractor or subcontractor of the contract or subcontract and not an independent contractor, unless— (1) the laborer or mechanic is free from control and direction in connection with the performance of the labor, both under the contract or subcontract 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 subcontractor; and (3) the laborer or mechanic is customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the labor performed. (b) Clarifications (1) Relationship with common law Subsection (a) is not a codification of the common law and shall not be interpreted to reflect, or to be limited or restricted by, common law interpretations regarding when an individual is an employee of another person. Subsection (a) shall be considered complete as written, and any judicial or agency interpretation of such subsection shall be limited to the explicit requirements of such subsection. (2) Impact of written or other agreements The requirements of subsection (a) shall not be in any way affected by any agreement, written 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 contrary 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 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 agreement In this subsection, the term non-compete agreement means an agreement between a person and an individual who performs labor for such person that restricts the individual from performing, either 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 agreement. . (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 performing any labor under a contract or subcontract to which this subchapter applies shall be an employee employed 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 violation; incorporation to further violations Subchapter IV of chapter 31 of title 40, United States Code, is amended by inserting after section 3144, the following: 3144a. Prohibitions against misclassification, incorporation to further violations, and retaliation; reclassification orders and stop work orders (a) Misclassification No contractor or subcontractor of a contract or subcontract to which this subchapter 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 violation of this subchapter, including a violation of subsection (a), shall— (1) incorporate or form, or assist in the incorporation 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 retaliation Section 3144a of title 40, United States Code, added by paragraph (3), is amended by adding at the end the following: (c) Retaliation (1) In general A contractor or subcontractor of a contract or subcontract to which this subchapter applies shall not discharge or in any other manner discriminate against a laborer or mechanic who is employed by the contractor or subcontractor and is performing any labor under the contract or subcontract, because— (A) such laborer or mechanic has filed any complaint or instituted or caused to be instituted any proceeding under or related to this subchapter, 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 (B) such laborer or mechanic— (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 or subcontractor for purposes of this subchapter and not an independent contractor; and (ii) was classified by the contractor or subcontractor as an independent contractor prior to the date of enactment of the Worker Flexibility and Small Business Protection Act of 2020 . (2) Rules regarding unlawful discharge or discrimination (A) Presumption of retaliation Any action taken by a contractor or subcontractor of a contract or subcontract to which this subchapter applies against a laborer or mechanic 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 action described in paragraph (1)(A), including taking any such action with respect to exercising the right of the laborer or mechanic pursuant 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 discharge 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 further 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 subcontract to which this subchapter applies has misclassified 1 or more laborers or mechanics in violation of subsection (a)— (A) the Secretary shall issue, not later than 24 hours after making such determination, an order against the contractor or subcontractor requiring the contractor or subcontractor to immediately classify the 1 or more laborers or mechanics as employees of the contractor or subcontractor; and (B) the contractor or subcontractor shall immediately comply with the order issued under subparagraph (A) or shall otherwise be in violation of subsection (a). (2) Orders An order issued under paragraph (1) shall— (A) 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 business of the contractor or subcontractor; and (B) remain in effect during any review conducted under paragraph (3) and during any hearing and appeal of such order under paragraph (4). (3) Review for reconsideration (A) In general A contractor or subcontractor 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 subparagraph (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 determine whether to affirm, modify, or revoke the contested order. (4) Hearings and appeals Any person aggrieved by a determination of the Secretary under paragraph (3)(C)(ii) may— (A) request a hearing to appeal such determination 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 subcontractor that violates an order issued under paragraph (1). A court shall issue such temporary or permanent injunctive relief if the Secretary has demonstrated it is just and proper. (6) Successfully disproving occurrence of misclassification (A) In general If a contractor or subcontractor 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 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, administrative law judge, or court, as applicable, shall award (and the Secretary of the Treasury shall, in accordance with subparagraph (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. (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 contractor 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 violation 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 operations 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 contractor or subcontractor by any Federal, State, or local agency for misclassifying a laborer or mechanic employed by the contractor or subcontractor 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 requiring the cessation of all business operations of such contractor or subcontractor at all business locations of the contractor or subcontractor, 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 contractor or subcontractor, 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 or subcontractor; 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 paragraph (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 Secretary issues another order releasing the order issued under such paragraph upon a finding by the Secretary that the contractor 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. (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 compliance with such terms. (3) Review for reconsideration (A) In general A contractor or subcontractor 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 subparagraph (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. (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 aggrieved by a determination of the Secretary under paragraph (3)(C)(ii) may— (A) request a hearing to appeal such determination 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 subcontractor that violates an order issued under paragraph (1). A court shall issue such temporary or permanent injunctive relief if the Secretary has demonstrated it is just and proper. (6) Compensation for lost work (A) In general Subject to subparagraph (B), a contractor or subcontractor with respect to whom an order is issued under paragraph (1) shall pay each laborer or mechanic described in subparagraph (C) the compensation that would be owed to such laborer or mechanic 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 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 subject of the order were not misclassified in violation of subsection (a)— (i) the order issued under paragraph (1), and any order issued against the contractor or subcontractor under subsection (d)(1) with respect to such 2 or more laborers 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, administrative 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— (I) an amount equal to any demonstrable lost net profits resulting from the order, as demonstrated by clear and convincing evidence; and (II) 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 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 requirements Subchapter IV of chapter 31 of title 40, United States Code, is amended by inserting after section 3144a, as added by paragraph (3), the following: 3144c. Penalties; expanded liability (a) Misclassification; incorporation To further violations; retaliation (1) In general A contractor or subcontractor that violates subsection (a), (b), or (c) of section 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 percent of the net profits of the contractor or subcontractor for the year in which the contractor or subcontractor had the highest net profits out of all years in which the contractor or subcontractor was in such violation. (2) Repeated, or willful, and widespread violations If the violation of subsection (a), (b), or (c) of section 3144a of this title is repeated 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 assessed under paragraph (1) for a violation of subsection (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 Secretary, 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 subcontractor 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. (2) Additional damages In any case in which a contractor or subcontractor contests a reclassification 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 Secretary— (A) the court shall determine if, during the period between the issuance of such order and the conclusion of the proceeding, the contractor or subcontractor violated such order by not classifying the 1 or more laborer or mechanics 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 contractor or subcontractor from the labor of the laborers or mechanics 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 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 violations, and retaliation; reclassification orders and stop work orders. Sec. 3144c. Penalties; expanded liability. . (g) Walsh-Healey Public Contracts Act (1) Strengthening employee test Chapter 65 of title 41, United States Code, is amended by inserting after section 6501 of such title the following: 6501a. Employee test (a) In general For purposes of this chapter and except as provided in subsection (c), an individual performing any labor, with respect to the manufacture or furnishing of materials, supplies, articles, or equipment, under a contract to which this chapter applies, shall be an employee employed by the contractor of such contract and not an independent contractor, unless— (1) the individual is free from control and direction 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, profession, or business of the same nature as that involved in the labor performed. (b) Clarifications (1) Relationship with common law Subsection (a) is not a codification of the common law and shall not be interpreted to reflect, or to be limited or restricted by, common law interpretations regarding when an individual is an employee of another person. Subsection (a) shall be considered complete as written, and any judicial or agency interpretation of such subsection shall be limited to the explicit requirements of such subsection. (2) Impact of written or other agreements The requirements of subsection (a) shall not be in any way affected by any agreement, written 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 contrary 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 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 agreement In this subsection, the term non-compete agreement means an agreement between a person and an individual who performs labor for such person that restricts the individual from performing, either 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 agreement. . (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 contract 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 employee in accordance with this section. . (3) Misclassification as a standalone violation (A) In general Section 6502 of title 41, United States Code, is amended by adding at the end the following: (5) Misclassification The contractor shall not misclassify an individual performing any labor, with respect to the manufacture or furnishing of materials, 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 violations Section 6502 of title 41, United States Code, as amended by subparagraph (A), is further amended by adding at the end the following: (6) Incorporation to further violations The contractor shall not, for the purpose, in whole or in part, of facilitating, or evading detection of, a violation of this chapter, including a violation 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 foreign or domestic corporation, partnership, limited liability corporation, or other entity. . (4) Protection from retaliation for being an employee; rules regarding unlawful discharge or discrimination Section 6502 of title 41, United States Code, as amended by paragraph (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 discriminate against an individual employed by the contractor in the manufacture or furnishing of materials, supplies, articles, or equipment under the contract, because— (i) such individual has filed any complaint or instituted or caused to be instituted 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 chapter and not an independent contractor; and (II) was classified by the contractor 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 discharge or discrimination (i) Presumption of retaliation Any action taken against an individual, employed by the contractor or subcontractor in the manufacture or furnishing 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 exercising the right of the individual pursuant to paragraph (5) to not be misclassified, shall establish a rebuttable presumption that the action is discrimination against the individual in violation of subparagraph (A). (ii) Motivating factor Unlawful discharge or other discrimination against an employee under subparagraph (A) is established when the complaining party demonstrates that one of the actions or the classification described in such subparagraph 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 Chapter 65 of title 41, United States Code, is amended by inserting after section 6506 the following: 6506a. Misclassification enforcement through reclassification orders and stop work orders (a) Reclassification orders (1) In general If the Secretary determines, 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 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 comply with the order issued under subparagraph (A) or shall otherwise be in violation of section 6502(5). (2) Orders An order issued under paragraph (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 paragraph (4). (3) Review for reconsideration (A) In general A 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 subparagraph (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 determine whether to affirm, modify, or revoke the contested order. (4) Hearings and appeals Any person aggrieved by a determination of the Secretary under paragraph (3)(C)(ii) may— (A) request a hearing to appeal such determination 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 jurisdiction as described in section 6507(d) for temporary or permanent injunctive relief against any contractor that violates an order issued under paragraph (1). A court shall issue such temporary or permanent injunctive relief if the Secretary has demonstrated it is just and proper. (6) Successfully disproving occurrence of misclassification (A) In general If 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 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; (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 individuals; and (iii) the Secretary of Labor, administrative law judge, or the court, as applicable, shall award (and the Secretary of the Treasury shall, in accordance with subparagraph (B), pay) to the contractor 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 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 a contractor does not comply with a reclassification order issued by the Secretary under subsection (a)(1), with respect to 2 or more individuals who are misclassified in violation of section 6502(5), within 30 days of being served with the order, the Secretary shall issue— (A) subject to subparagraph (B), an order against the contractor requiring the cessation of all business operations of such contractor at the location of the violation; or (B) if an order described in subparagraph (A) has been previously issued against the contractor by any Federal, State, or local agency for misclassifying an employee performing any labor, with respect to the manufacture or furnishing of materials, supplies, articles, or equipment under the contract, as not such an employee 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 operations of such contractor at all business locations of the 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 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 (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 paragraph (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 Secretary issues another order releasing the order issued under such subsection upon a finding by the Secretary that the contractor— (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) may request a review by the Secretary to contest the order. (B) Requests A request under subparagraph (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 determine whether to affirm, modify, or revoke the contested order. (4) Hearings and appeals Any person aggrieved by a determination of the Secretary under paragraph (3)(C)(ii) may— (A) request a hearing to appeal such determination 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 jurisdiction as described in section 6507(d) for temporary or permanent injunctive relief against any contractor that violates an order issued under paragraph (1). A court shall issue such temporary or permanent injunctive relief if the Secretary has demonstrated it is just and proper. (6) Compensation for lost work (A) In general Subject to subparagraph (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. (C) Applicable employees An employee described in this subparagraph is an individual 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 materials, 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 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 6502(5)— (i) the order issued under paragraph (1), and any order issued against the contractor under subsection (a)(1) with respect 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 individuals; and (iii) the Secretary of Labor, administrative law judge, or court, as applicable, shall award (and the Secretary of the Treasury shall, in accordance with subparagraph (B), pay) to the contractor— (I) an amount equal to any demonstrable lost net profits resulting from the order, as demonstrated by clear and convincing evidence; and (II) 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 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 requirements Chapter 65 of title 41, United States Code, as amended by paragraph (5), is further 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; (B) if the violation is repeated or willful, $30,000; or (C) if the violation is widespread, 1 percent 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 contractor was in such violation. (2) Repeated, or willful, and widespread violations If the violation of paragraph (5), (6), or (7) of section 6502 of this title is repeated 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 assessed under paragraph (1) for a violation of paragraph (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 the amount to be paid from the account of the contractor for the penalty. (b) Reclassification orders (1) Civil penalties A contractor that violates 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 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 Secretary— (A) the court shall determine if, during the period between the issuance of such order and the conclusion of the proceeding, the contractor 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— (i) the court shall determine the amount of net profits derived by the contractor 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 violation (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: (c) Misclassification It shall be unlawful for any employer to misclassify an eligible employee of the employer as not an employee of the employer for purposes of this title. . (B) Incorporation to further violations 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 subsection (c)— (1) incorporate or form, or assist in the incorporation 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: (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 widespread violations If a violation of subsection (c) or (d) of section 105 is repeated or willful, as described in subparagraph (A)(ii), and is widespread, as described in subparagraph (A)(iii), the higher penalty of the penalties described in such subparagraphs shall apply. (C) Payment of penalties Any penalty assessed under subparagraph (A) for a violation of subsection (c) or (d) of section 105 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 subsection, 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 retaliation Section 105(b) of the Family and Medical Leave Act of 1993 ( 29 U.S.C. 2615(b) ) is amended— (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 redesignated, by striking ; or and inserting a semicolon; (D) in subparagraph (C), as so redesignated, by striking the period at the end and inserting ; or ; and (E) by adding at the end the following: (D) (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 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 enactment of the Worker Flexibility and Small Business Protection Act of 2020 . (2) Rules regarding unlawful discharge or discrimination (A) Presumption of retaliation Any action taken against an individual within 90 days of the individual taking any action described in any of subparagraph (A), (B), or (C) of paragraph (1), including taking any such action with respect to exercising the right of an employee pursuant to subsection (c) to not be misclassified, shall establish a rebuttable presumption that the action is discrimination against the individual in violation of paragraph (1). (B) Motivating factor Unlawful discharge or other discrimination against an employee 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 employer 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) ). . (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 section 107 ( 29 U.S.C. 2617 ) the following: 107A. Misclassification enforcement through reclassification orders and stop work orders (a) Reclassification orders (1) In general If the Secretary determines, 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 employer to immediately classify the 1 or more individuals as eligible employees of the employer; and (B) the employer shall immediately comply with the order issued under subparagraph (A) or shall otherwise be in violation of section 105(c). (2) Orders An order issued under paragraph (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 contest the order. (B) Requests A request under subparagraph (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 determine whether to affirm, modify, or revoke the contested order. (4) Hearings and appeals Any person aggrieved by a determination of the Secretary under paragraph (3)(C)(ii) may— (A) request a hearing to appeal such determination to an administrative law judge; and (B) appeal an order of an administrative law judge under subparagraph (A) to any Federal 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 paragraph (1). A court shall issue such relief if the Secretary has demonstrated it is just and proper. (6) Successfully disproving occurrence of misclassification (A) In general If 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 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 individuals; and (iii) the Secretary of Labor, administrative law judge, or court, as applicable, shall award (and the Secretary of the Treasury shall, in accordance with subparagraph (B), pay) to the employer 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 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 employer does not comply with a reclassification order issued by the Secretary under subsection (a)(1), with respect to 2 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 cessation of all business operations of such employer at the location of the violation; or (B) if an order described in subparagraph (A) has been previously issued against the employer by any Federal, State, or local agency 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 requiring the cessation of all business operations of such employer at all business locations of the employer, 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, 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 (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 paragraph (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 Secretary issues another order releasing the order issued under such paragraph upon a finding by the Secretary that the employer— (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 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 contest the order. (B) Requests A request under subparagraph (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 determine whether to affirm, modify, or revoke the contested order. (4) Hearing and appeals Any person aggrieved by a determination of the Secretary under paragraph (3)(C)(ii) may— (A) request a hearing to appeal such determination to an administrative law judge; and (B) appeal an order of an administrative law judge under subparagraph (A) to any Federal 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 paragraph (1). A court shall issue such relief if the Secretary has demonstrated it is just and proper. (6) Compensation for lost work (A) In general Subject to subparagraph (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 employee ceasing as a result of such order, 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 eligible 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 employer 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 individuals; and (iii) the Secretary of Labor, administrative law judge, or court, as applicable, shall award (and the Secretary of the Treasury shall, in accordance with subparagraph (B), pay) to the employer— (I) an amount equal to any demonstrable lost net profits resulting from the order, as demonstrated by clear and convincing evidence; and (II) 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 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 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 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 reclassification 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 proceeding 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, during the period between the issuance of such order and the conclusion of the proceeding, the employer violated such order by not classifying the 1 or more individuals as eligible employees during that period; and (ii) if the court determines the employer so violated the order during that period— (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 damages 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. (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. II Small business protection through shared responsibility for workers’ rights 201. General shared responsibility for workers’ 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 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 interpretations; and (iii) is not a codification of the common law and shall not be interpreted to reflect, or to be limited or restricted by, common law interpretations regarding whether a person is an employer of a given employee or whether multiple persons are employers 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 definition of employee under subsection (e), and the definition of employ under subsection (g). (C) Additional multiple employer determinations Notwithstanding subparagraph (B), 2 or more persons shall be employers, acting directly or indirectly, with respect to an employee if— (i) each such person directly or indirectly benefits or seeks to directly or indirectly 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 employment of the employee, including through an intermediary; (II) each such person exerts functional direction or control, directly or indirectly, over any material term or condition of employment of the 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— (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 performance of such labor; or (IV) based on an act or omission of the 2 or more persons, the employee reasonably 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 employer 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 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; (II) shall not be interpreted by any court or agency as a restriction on, or narrowing of, any such interpretations; and (III) is not a codification of the common law and shall not be interpreted to reflect, or to be limited or restricted by, common law interpretations regarding whether a person is an employer of a given employee or whether multiple persons are employers 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 meanings given the term employer under subparagraph (A) and the term employee under paragraph (3). (iii) Additional multiple employer determinations Notwithstanding clause (ii), 2 or more persons shall be employers, acting directly or indirectly, with respect to an employee if— (I) each such person directly or indirectly benefits or seeks to directly or indirectly benefit from the performance 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 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 employee, including through an intermediary; (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 (CC) upholding the rights and protections of this Act with regard to the employee’s performance of such labor; (dd) based on an act or omission of the 2 or more persons, the employee reasonably 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 employer under this Act; or (ee) based on the totality of the circumstances of the industrial realities, including the way separate persons 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 absence 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; (II) shall not be interpreted by any court or agency as a restriction on, or narrowing of, any such interpretations; and (III) is not a codification of the common law and shall not be interpreted to reflect, or to be limited or restricted by, common law interpretations regarding whether a person is an employer of a given employee or whether multiple persons are employers 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 paragraph (6). (iii) Additional multiple employer determinations Notwithstanding clause (ii), 2 or more persons shall be employers, acting directly or indirectly, with respect to an employee if— (I) each such person directly or indirectly benefits or seeks to directly or indirectly benefit from the performance 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 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 employee, including through an intermediary; (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 (CC) upholding the rights and protections of this Act with regard to the employee’s performance of such labor; or (dd) based on an act or omission of the 2 or more persons, the employee reasonably 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 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: 4B. Applicability to multiple employers and related entities (a) Multiple employers (1) Rule of interpretation This subsection— (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 Flexibility and Small Business Protection Act of 2020 regarding which persons qualify as operators in relation to a given miner under this Act, including 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 (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 interpretations regarding whether a person is an employer of a given miner or whether multiple persons 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 operator under this Act in relation to a given miner. (3) Additional multiple employer determinations Notwithstanding paragraph (2), 2 or more persons shall be employers, acting directly 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 performing labor for the operator; (B) each such person directly or indirectly benefits or seeks to directly or indirectly benefit from the performance of labor by the miner; and (C) (i) each such person exerts actual direction or control, directly or indirectly, over any material term or condition of employment of the miner, including through an intermediary; (ii) each such person exerts functional direction or control, directly or indirectly, over any material term or condition of employment of the miner, 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 employment of the miner; (II) ensuring compliance with the requirements of this Act with regard to the miner's performance of such labor; or (III) upholding the rights and protections of this Act with regard to the miner’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 Worker Protection Act Section 5 of the Migrant and Seasonal 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 employers and agricultural associations for workers of farm labor contractors In any case where an agricultural employer or an agricultural association has entered into an agreement with a farm labor contractor to provide migrant agricultural workers or seasonal agricultural workers to the employer or association, both the agricultural employer 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 employer or joint employment structure; (ii) shall not be interpreted by any court or agency as a restriction on, or narrowing of, any such interpretations; and (iii) is not a codification of the common law and shall not be interpreted to reflect, or to be limited or restricted by, common 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 seasonal agricultural worker, if based on the application of the definitions of agricultural association , agricultural employer , agricultural employment , employ , farm labor contractor , migrant agricultural worker , and seasonal agricultural 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 relation to a given migrant agricultural worker or seasonal agricultural worker. (C) Additional multiple employer determinations Notwithstanding subparagraph (B), 2 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 seasonal agricultural worker if— (i) one of the persons is a farm labor contractor, agricultural employer, or agricultural association and the migrant agricultural worker or seasonal agricultural worker is performing labor for such person; (ii) each such person directly or indirectly benefits or seeks to directly or indirectly benefit from the performance of labor by the worker; and (iii) (I) each such person exerts actual direction or control, directly or indirectly, over any material term or condition of employment of the worker, including through an intermediary; (II) each such person exerts functional direction or control, directly or indirectly, over any material term or condition of employment of the worker, including through an intermediary; (III) 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 worker; (bb) ensuring compliance with the requirements of this Act with regard 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 reasonably believed that each such person was a farm labor contractor, agricultural employer, or agricultural association that employed the worker and the worker did not have actual knowledge that any of the persons were not the worker's employer for purposes of this this Act. (3) Interaction with registration requirements 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 contractor. . (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 related entities (a) Multiple employers (1) Rule of interpretation This subsection— (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 Flexibility and Small Business Protection Act of 2020 regarding which persons qualify as employers in relation to a given laborer or mechanic under this subchapter, including 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 (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 interpretations regarding whether a person is an employer of a given laborer or mechanic or whether multiple persons are employers of a laborer or mechanic. (2) Additional multiple employer determinations Two or more persons, acting directly or indirectly, shall be responsible for the rights and protections of this subchapter with respect to a laborer or mechanic if— (A) one of the persons is a contractor, or subcontractor, for a contract to which this subchapter applies and the laborer or mechanic is performing labor under such contract; (B) each such person directly or indirectly benefits or seeks to directly or indirectly benefit from the performance of labor by the laborer or mechanic; and (C) (i) each such person exerts actual direction or control, directly or indirectly, over any material term or condition of employment of the laborer or mechanic, including through an intermediary; (ii) each such person exerts functional direction 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 employment of the laborer or mechanic; (II) ensuring compliance with the requirements of this subchapter with regard to the laborer or mechanic's performance of such labor; or (III) upholding the rights and protections 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 reasonably believed that such persons were the laborer or mechanic's employers and the laborer or mechanic did not have actual knowledge that any of the persons were not the laborer or mechanic'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 related entities (a) Multiple employers (1) Rule of interpretation This subsection— (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 Flexibility and Small Business Protection Act of 2020 regarding which persons qualify as employers in relation to a given service employee under this chapter, including 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 (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 interpretations regarding whether a person is an employer of a given service employee or whether multiple persons are employers of a service employee. (2) Additional multiple employer determinations Two or more persons, acting directly 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 performing labor under such contract; (B) each such person directly or indirectly 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 direction or control, directly or indirectly, over any material term or condition of employment of the service employee, including through an intermediary; (ii) each such person exerts functional direction 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 employment of the service employee; (II) ensuring compliance with the requirements of this chapter with regard to the service employee's performance of such labor; or (III) upholding the rights and protections 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 reasonably believed that such persons were the service employee's employers and the service employee did not have actual knowledge that any of the persons were not the service employee's employer 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 related entities (a) Multiple employers (1) Rule of interpretation This subsection— (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 Flexibility and Small Business Protection Act of 2020 regarding which persons qualify as employers in relation to a given individual performing labor in the manufacture or furnishing of materials, supplies, articles, or equipment under a contract subject to this chapter, including 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 (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 interpretations regarding whether a person is an employer of an individual described in subparagraph (A) or whether multiple persons are employers of such individual. (2) Additional multiple employer determinations Two or more persons, acting directly 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 manufacture or furnishing of materials, supplies, articles, or equipment under the contract; (B) each such person directly or indirectly benefits or seeks to directly or indirectly benefit from such performance of labor by the individual; and (C) (i) each such person exerts actual direction or control, directly or indirectly, over any material term or condition of employment of the individual; (ii) each such person exerts functional direction or control, directly or indirectly, over any material term or condition of employment of the individual, 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 employment of the individual; (II) ensuring compliance with the requirements of this chapter with regard to the individual's performance of such labor; or (III) upholding the rights and protections 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 believed that such persons were the individual's employers and the individual did not have actual knowledge that any of the persons were not the individual's employer under this chapter. . (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 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; (II) shall not be interpreted by any court or agency as a restriction on, or narrowing of, any such interpretations; and (III) is not a codification of the common law and shall not be interpreted to reflect, or to be limited or restricted by, common law interpretations regarding whether a person is an employer of a given employee or whether multiple persons are employers 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, 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 employer determinations Notwithstanding clause (ii), 2 or more persons shall be employers, acting directly or indirectly, with respect to an employee if— (I) each such person directly or indirectly benefits or seeks to directly or indirectly benefit from the performance 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 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 employee, including through an intermediary; (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 (CC) upholding the rights and protections of this Act with regard to the employee; or (dd) based on an act or omission of the 2 or more persons, the employee reasonably 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 employer under this Act. . (j) Federal Unemployment Tax Act (FUTA) (1) In general Section 3306(w) of the Internal Revenue Code of 1986, as added by section 102(j), is amended by adding at the end the following 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. 202. Massive corporations (a) Joint responsibility for all corporate family employees (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 Section 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 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 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. . (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 following: (b) Subsidiaries An employer shall also be responsible for the rights and protections of this Act with regard to a miner of a coal or other mine who is 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 miner. . (5) Migrant and Seasonal Agricultural Worker Protection Act Section 5(c) of the Migrant and Seasonal Agricultural Worker Protection Act ( 29 U.S.C. 1803(c) ), as added by section 201(e), is further amended by adding at the end the following: (4) Subsidiaries An entity shall also be responsible for the rights and protections of this Act with regard to an individual who is a migrant agricultural worker or seasonal agricultural worker employed by a farm labor contractor, agricultural employer, or agricultural association, 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 Act for the migrant agricultural worker or seasonal agricultural 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 following: (b) Subsidiaries An entity shall also be responsible 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. . (7) McNamara-O'Hara Service Contract Act Section 6701a of title 41, United States Code, as added by section 201(g), is further amended by adding at the end the following: (b) Subsidiaries An entity shall also be responsible for the rights and protections of this chapter with regard to a service employee of 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 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 adding at the end the following: (b) Subsidiaries An entity shall also be responsible 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 individual. . (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 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 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. . (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 services 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 102(a)(8)(C), is further amended by adding at the end the following: (g) Owners, directors, officers, and managing 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 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 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 violation. . (2) National Labor Relations Act Section 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 managing 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 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 violation. . (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 amended by section 102(c)(7)(B), is amended by inserting after subsection (k) the following: (m) Owners, directors, officers, and managing 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, director, officer, or managing agent of the employer if the Secretary 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 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 violation. . (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 following: 118. Liability of owners, directors, officers, managing agents, and large shareholders; indemnification (a) Owners, directors, officers, and managing 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 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 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 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 violation. . (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 102(e)(5)(A), is further amended by inserting after section 504 the following: 505. Liability of owners, directors, officers, managing agents, and large shareholders; indemnification (a) Civil penalty liability for owners, directors, 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, agricultural employer, or agricultural association, the Secretary or court may also assess a civil penalty for such violation against an owner, director, officer, or managing agent of the farm labor contractor, agricultural employer, or agricultural association if the Secretary 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 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 violation. . (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, directors, 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 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 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 subcontractor 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, respectively; and (B) by inserting after section 6706 the following: 6707. Civil penalties assessed against owners, directors, officers, managing agents, and large shareholders; indemnification (a) Civil penalty liability for owners, directors, 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 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 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 violation. . (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 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 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 violation. . (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 managing 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 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 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 violation. . (c) Responsibilities of 10 largest shareholders (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 following: (h) Joint liability of large shareholders (1) In general In any action or proceeding for a violation of this Act, the 10 largest shareholders of an employer, 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 liable for all violations of this Act and for all damages 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 violations, 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 shareholder under paragraph (1). . (2) National Labor Relations Act Section 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 shareholders of an employer, 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 liable for all violations of this Act and for all damages 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 violations, 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 shareholder 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 amended by subsection (b)(3), is further amended by adding 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, 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 liable for all violations of this Act and for all damages 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 violations, 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 shareholder 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 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 liable 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 violations, 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 shareholder under paragraph (1). . (5) Migrant and Seasonal Agricultural Worker Protection Act Section 505 of the Migrant 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 (1) In general In any action or proceeding for a violation of this Act, including any regulation under this Act, the 10 largest shareholders of a farm labor contractor, agricultural employer, or agricultural association, 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 liable for all violations of this Act, including any regulation under this Act, 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 farm labor contractor, agricultural employer, or agricultural association for all violations, with the farm labor contractor, agricultural employer, or agricultural association (respectively) responsible for not more than 90 percent. (2) No reimbursement A farm labor contractor, agricultural employer, or agricultural association may not refund in any way any amounts paid by a shareholder under paragraph (1). . (6) Davis-Bacon Act Section 3144c of title 40, United States Code, as amended by subsection (b)(6), is further amended by adding at the end the following: (e) Joint liability of large shareholders (1) In general In any action or proceeding for a violation of this subchapter, the 10 largest shareholders of a contractor or subcontractor, 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 liable for all violations of this subchapter, and for all damages awarded and civil penalties assessed for violations of this subchapter; and (B) notwithstanding subparagraph (A), be personally responsible for 10 percent of any damages, civil penalties, or other restitution or fees assessed against the contractor or subcontractor for the violations, with the contractor or subcontractor responsible for not more than 90 percent. (2) No reimbursement A contractor or subcontractor may not refund in any way any amounts paid by a shareholder under paragraph (1). . (7) McNamara-O'Hara Service Contract Act Section 6707 of title 41, United States Code, as amended by subsection (b)(7)(A), 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 chapter, the 10 largest shareholders of a contractor, 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 liable for all violations of this chapter, and for all damages awarded and civil penalties assessed for violations of this chapter; and (B) notwithstanding subparagraph (A), be personally responsible for 10 percent of any damages, civil penalties, or other restitution or fees assessed against the contractor for the violations, with the contractor responsible for not more than 90 percent. (2) No reimbursement A contractor may not refund in any way any amounts paid by a shareholder under paragraph (1). . (8) Walsh-Healey Public Contracts Act Section 6506b of title 41, United States Code, as amended by subsection (b)(8), is further amended by adding at the end the following: (e) Joint liability of large shareholders (1) In general In any action or proceeding for a violation of this chapter, the 10 largest shareholders of a contractor, 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 liable for all violations of this chapter, and for all damages awarded and civil penalties assessed for violations of this chapter; and (B) notwithstanding subparagraph (A), be personally responsible for 10 percent of any damages, civil penalties, or other restitution or fees assessed against the contractor for the violations, with the contractor responsible for not more than 90 percent. (2) No reimbursement A contractor may not refund in any way any amounts paid by a shareholder under paragraph (1). . (9) Family and Medical Leave Act of 1993 Section 107 of the Family and Medical Leave Act of 1993 ( 29 U.S.C. 2617 ), as amended by subsection (b)(9), is further amended by inserting after subsection (e) 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 shareholders of an employer, 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 liable for all violations of this Act and for all damages 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 violations, 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 shareholder under paragraph (1). . 203. Franchisors (a) Fair Labor Standards Act of 1938 (1) In general Section 3(d) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 203(d) ), as amended by section 202(a)(1), is further amended by adding at the end the following: (7) 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 16 of the Fair Labor Standards Act of 1938, as amended by section 202(c)(1), is further amended by adding at the end the following: (i) Franchisees and Franchisors (1) Indemnification by franchisor An employer or entity that is found to be in violation 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 violation was— (A) at the behest of the franchisor; (B) at the direction of the franchisor; (C) pursuant to any policies, agreements, or contractual obligations emanating from the franchisor; or (D) due to other direct or indirect control or pressure from the franchisor. (2) Process for and type of indemnification Indemnification under paragraph (1)— (A) may be sought by a franchisee in any court of competent jurisdiction; and (B) shall include a full recovery from the franchisor of all compensatory and punitive damages, civil monetary penalties, attorney’s fees, or other amounts required to be paid by the franchisee as a result of the violation of this Act. (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 obtained 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 indemnification under this subsection. (B) Remedy and civil penalty Any franchisor who violates subparagraph (A) shall be subject to a civil penalty of $100,000. . (b) National Labor Relations Act (1) In general Section 2(2) of the National Labor Relations Act ( 29 U.S.C. 152(2) ), as amended by section 202(a)(2), is further amended by adding at the end the following: (E) 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 12 of the National Labor Relations Act ( 29 U.S.C. 162 ), as amended by section 202(c)(2), is further amended by adding at the end the following: (g) Franchisees and Franchisors (1) Indemnification by franchisor An employer or entity that is found to be in violation 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 violation was— (A) at the behest of the franchisor; (B) at the direction of the franchisor; (C) pursuant to any policies, agreements, or contractual obligations emanating from the franchisor; or (D) due to other direct or indirect control or pressure from the franchisor. (2) Process for and type of indemnification Indemnification under paragraph (1)— (A) may be sought by a franchisee in any court of competent jurisdiction; and (B) shall include a full recovery from the franchisor of all compensatory and punitive damages, civil monetary penalties, attorney’s fees, or other amounts required to be paid by the franchisee as a result of the violation of this Act. (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 obtained 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 indemnification under this subsection. (B) Remedy and civil penalty Any franchisor who violates subparagraph (A) shall be subject to a civil penalty of $100,000. . (c) Occupational Safety and Health Act of 1970 (1) In general Section 3(5) of the Occupational Safety and Health Act of 1970 ( 29 U.S.C. 652(5) ), as amended by section 202(a)(3), is further 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 17 of the Occupational Safety and Health Act of 1970 ( 29 U.S.C. 666 ), as amended by section 202(c)(3), is further amended by adding at the end the following: (o) Franchisees and Franchisors (1) Indemnification by franchisor An employer or other entity that is a franchisee and is found to be in violation of this Act shall have the right to indemnification as described in paragraph (2) from the franchisor, in any case where the violation was— (A) at the behest of the franchisor; (B) at the direction of the franchisor; (C) pursuant to any policies, agreements, or contractual obligations emanating from the franchisor; or (D) due to other direct or indirect control or pressure from the franchisor. (2) Process for and type of indemnification Indemnification under paragraph (1)— (A) may be sought by a franchisee in any court of competent jurisdiction; and (B) shall include a full recovery from the franchisor of all compensatory and punitive damages, civil monetary penalties, attorney’s fees, or other amounts required to be paid by the franchisee as a result of the violation of this Act. (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 obtained 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 indemnification under this subsection. (B) Remedy and civil penalty Any franchisor who violates subparagraph (A) shall be subject to a civil penalty of $100,000. . (d) Federal Mine Safety and Health Act of 1977 (1) In general Section 4B of the Federal Mine Safety and Health Act of 1977, as amended by section 202(a)(4), is further amended by adding at the end the following: (c) Franchisors and franchisees A franchisor shall also be responsible for the rights and protections of this Act with regard to a miner, in any case where a franchisee of the franchisor is responsible for the rights and protections of this Act for the miner. . (2) Indemnification Section 118 of the Federal Mine Safety and Health Act of 1977, as amended by section 202(c)(4), is further amended by adding at the end the following: (c) Franchisees and Franchisors (1) Indemnification by franchisor An operator or other entity that is found to be in violation 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 violation was— (A) at the behest of the franchisor; (B) at the direction of the franchisor; (C) pursuant to any policies, agreements, or contractual obligations emanating from the franchisor; or (D) due to other direct or indirect control or pressure from the franchisor. (2) Process for and type of indemnification Indemnification under paragraph (1)— (A) may be sought by a franchisee in any court of competent jurisdiction; and (B) shall include a full recovery from the franchisor of all compensatory and punitive damages, civil monetary penalties, attorney’s fees, or other amounts required to be paid by the franchisee as a result of the violation of this Act. (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 obtained 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 indemnification under this subsection. (B) Remedy and civil penalty Any franchisor who violates subparagraph (A) shall be subject to a civil penalty of $100,000. . (e) Migrant and Seasonal Agricultural Worker Protection Act (1) In general Section 5(c) of the Migrant and Seasonal Agricultural Worker Protection Act, as amended by section 202(a)(5), is further amended by adding at the end the following: (4) Franchisors and franchisees A franchisor shall also be responsible for the rights and protections of this Act with regard to an individual who is a migrant agricultural worker or seasonal agricultural worker employed by a farm labor contractor, agricultural employer, or agricultural association, in any case where a franchisee of the franchisor is responsible for the rights and protections of this Act for the migrant agricultural worker or seasonal agricultural worker. . (2) Indemnification Section 505 of the Migrant and Seasonal Agricultural Worker Protection Act, as amended by section 202(c)(5), is further amended by adding at the end the following: (c) Franchisees and Franchisors (1) Indemnification by franchisor A farm labor contractor, agricultural employer, agricultural association, or other entity that is found to be in violation 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 violation was— (A) at the behest of the franchisor; (B) at the direction of the franchisor; (C) pursuant to any policies, agreements, or contractual obligations emanating from the franchisor; or (D) due to other direct or indirect control or pressure from the franchisor. (2) Process for and type of indemnification Indemnification under paragraph (1)— (A) may be sought by a franchisee in any court of competent jurisdiction; and (B) shall include a full recovery from the franchisor of all compensatory and punitive damages, civil monetary penalties, attorney’s fees, or other amounts required to be paid by the franchisee as a result of the violation of this Act. (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 obtained 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 indemnification under this subsection. (B) Remedy and civil penalty Any franchisor who violates subparagraph (A) shall be subject to a civil penalty of $100,000. . (f) Davis-Bacon Act (1) In general Section 3144b of title 40, United States Code, as amended by section 202(a)(6), is further amended by adding at the end the following: (c) Franchisors and franchisees A franchisor shall also be responsible for the rights and protections of this subchapter with regard to a laborer or mechanic in any case where a franchisee of the franchisor is responsible for the rights and protections of this subchapter for the laborer or mechanic. . (2) Indemnification Section 3144c of title 40, United States Code, as amended by section 202(c)(6), is further amended by adding at the end the following: (f) Franchisees and Franchisors (1) Indemnification by franchisor A contractor, subcontractor, or other entity that is found to be in violation of this subchapter and is a franchisee shall have the right to indemnification as described in paragraph (2) from the franchisor, in any case where the violation was— (A) at the behest of the franchisor; (B) at the direction of the franchisor; (C) pursuant to any policies, agreements, or contractual obligations emanating from the franchisor; or (D) due to other direct or indirect control or pressure from the franchisor. (2) Process for and type of indemnification Indemnification under paragraph (1)— (A) may be sought by a franchisee in any court of competent jurisdiction; and (B) shall include a full recovery from the franchisor of all compensatory and punitive damages, civil monetary penalties, attorney’s fees, or other amounts required to be paid by the franchisee as a result of the violation of this subchapter. (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 obtained 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 indemnification under this subsection. (B) Remedy and civil penalty Any franchisor who violates subparagraph (A) shall be subject to a civil penalty of $100,000. . (g) McNamara-O'Hara Service Contract Act (1) In general Section 6701a of title 41, United States Code, as amended by section 202(a)(7), is further amended by adding at the end the following: (c) Franchisors and franchisees A franchisor shall also be responsible for the rights and protections of this chapter with regard to a service employee in any case where a franchisee of the franchisor is responsible for the rights and protections of this chapter for the service employee. . (2) Indemnification Section 6707 of title 41, United States Code, as amended by section 202(c)(7), is further amended by adding at the end the following: (c) Franchisees and Franchisors (1) Indemnification by franchisor A contractor, subcontractor, or other entity that is found to be in violation of this chapter and is a franchisee shall have the right to indemnification as described in paragraph (2) from the franchisor, in any case where the violation was— (A) at the behest of the franchisor; (B) at the direction of the franchisor; (C) pursuant to any policies, agreements, or contractual obligations emanating from the franchisor; or (D) due to other direct or indirect control or pressure from the franchisor. (2) Process for and type of indemnification Indemnification under paragraph (1)— (A) may be sought by a franchisee in any court of competent jurisdiction; and (B) shall include a full recovery from the franchisor of all compensatory and punitive damages, civil monetary penalties, attorney’s 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 obtained 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 indemnification under this subsection. (B) Remedy and civil penalty Any franchisor who violates subparagraph (A) shall be subject to a civil penalty of $100,000. . (h) Walsh-Healey Public Contracts Act (1) In general Section 6501b of title 41, United States Code, as amended by section 202(a)(8), is further amended by adding at the end the following: (c) Franchisors and franchisees A franchisor shall also be responsible for the rights and protections of this chapter with regard to an individual employed under a contract to which this chapter applies, in any case where a franchisee of the franchisor is responsible for the rights and protections of this chapter for the individual. . (2) Indemnification Section 6506b of title 41, United States Code, as amended by section 202(c)(8), is further amended by adding at the end the following: (f) Franchisees and Franchisors (1) Indemnification by franchisor A contractor, subcontractor, or other entity that is found to be in violation of this chapter and is a franchisee shall have the right to indemnification as described in paragraph (2) from the franchisor, in any case where the violation was— (A) at the behest of the franchisor; (B) at the direction of the franchisor; (C) pursuant to any policies, agreements, or contractual obligations emanating from the franchisor; or (D) due to other direct or indirect control or pressure from the franchisor. (2) Process for and type of indemnification Indemnification under paragraph (1)— (A) may be sought by a franchisee in any court of competent jurisdiction; and (B) shall include a full recovery from the franchisor of all compensatory and punitive damages, civil monetary penalties, attorney’s 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 obtained 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 indemnification 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 (1) In general Section 101(4) of the Family and Medical Leave Act of 1993 ( 29 U.S.C. 2611(4) ), as amended by section 202(a)(9), is further 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 following: (g) Franchisees and Franchisors (1) Indemnification by franchisor An employer or other entity that is found to be in violation 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 violation was— (A) at the behest of the franchisor; (B) at the direction of the franchisor; (C) pursuant to any policies, agreements, or contractual obligations emanating from the franchisor; or (D) due to other direct or indirect control or pressure from the franchisor. (2) Process for and type of indemnification Indemnification under paragraph (1)— (A) may be sought by a franchisee in any court of competent jurisdiction; and (B) shall include a full recovery from the franchisor of all compensatory and punitive damages, civil monetary penalties, attorney’s fees, or other amounts required to be paid by the franchisee as a result of the violation of this Act. (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 obtained 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 indemnification under this subsection. (B) Remedy and civil penalty Any franchisor who violates subparagraph (A) shall be subject to a civil penalty of $100,000. . (j) Federal Unemployment Tax Act (FUTA) (1) In general Section 3306(w) of the Internal Revenue Code of 1986, as amended by section 202(a)(10), is amended by adding at the end the following new paragraphs: (5) Paragraph (7) of section 3(d) of such Act. (6) Subsection (i) of section 16 of such Act. . (2) Effective date The amendment made by paragraph (1) shall apply to services rendered on or after January 1, 2022. 204. Temporary staffing companies (a) Responsibilities of employers utilizing employees of staffing companies and other covered employees (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 203(a)(1), is further amended by adding at the end the following: (8) Employers of employees of staffing companies and other covered employees An employer shall also be responsible for the rights and protections of this Act with regard to one or more covered employees (as defined in section 6(c)(1)) provided by another employer to perform labor for the employer. . (2) National Labor Relations Act Section 2(2) of the National Labor Relations Act ( 29 U.S.C. 152(2) ), as amended by section 203(b)(1), is further amended by adding at the end the following: (F) Employers of employees of staffing companies and other covered employees An employer shall also be responsible for the rights and protections of this Act with regard to one or more covered employees (as defined in section 6(c)(1) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 206(c)(1) )) provided by another employer to perform labor for the employer. . (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 amended by section 203(c), is further amended by adding at the end the following: (G) Employers of employees of staffing companies and other covered employees An employer shall also be responsible for the rights and protections of this Act with regard to one or more covered employees (as defined in section 6(c)(1) of the Fair Labor Standards Act ( 29 U.S.C. 206(c)(1) )) provided by another employer to perform labor for the employer. . (4) Federal Mine Safety and Health Act of 1977 Section 4B of the Federal Mine Safety and Health Act of 1977, as amended by section 203(d)(1), is further amended by adding at the end the following: (d) Employers of employees of staffing companies and other covered employees An operator of a coal or other mine shall also be responsible for the rights and protections of this Act with regard to one or more covered employees (as defined in section 6(c)(1) of the Fair Labor Standards Act ( 29 U.S.C. 206(c)(1) )) provided by another employer to perform labor as miners for the operator. . (5) Migrant and Seasonal Agricultural Worker Protection Act Section 5(c) of the Migrant and Seasonal Agricultural Worker Protection Act, as amended by section 203(e), is further amended by adding at the end the following: (5) Employers of employees of staffing companies and other covered employees A farm labor contractor, agricultural employer, or agricultural association shall also be responsible for the rights and protections of this Act with regard to one or more migrant agricultural workers or seasonal agricultural workers who— (A) are covered employees (as defined in section 6(c)(1) of the Fair Labor Standards Act of 1938); and (B) are provided by another employer to perform labor for the farm labor contractor, agricultural employer, or agricultural association. . (6) Davis-Bacon Act Section 3144b of title 40, United States Code, as amended by section 203(f)(1), is further amended by adding at the end the following: (d) Employers of employees of staffing companies and other covered employees A contractor or any subcontractor shall also be responsible for the rights and protections of this subchapter with regard to one or more laborers or mechanics who are covered employees (as defined in section 6(c)(1) of the Fair Labor Standards Act ( 29 U.S.C. 206(c)(1) )) provided by another employer to perform labor for the contractor or subcontractor under a contract to which this subchapter applies. . (7) McNamara-O'Hara Service Contract Act Section 6701a of title 41, United States Code, as amended by section 203(g), is further amended by adding at the end the following: (d) Employers of employees of staffing companies and other covered employees A contractor shall also be responsible for the rights and protections of this chapter with regard to one or more service employees who are covered employees (as defined in section 6(c)(1) of the Fair Labor Standards Act ( 29 U.S.C. 206(c)(1) )) provided by another employer to perform labor for the contractor under a contract to which this chapter applies. . (8) Walsh-Healey Public Contracts Act Section 6501b of title 41, United States Code, as amended by section 203(h), is further amended by adding at the end the following: (d) Employers of employees of staffing companies and other covered employees A contractor shall also be responsible for the rights and protections of this chapter with regard to one or more individuals who are covered employees (as defined in section 6(c)(1) of the Fair Labor Standards Act ( 29 U.S.C. 206(c)(1) )) provided by another employer to perform labor in the manufacture or furnishing of materials, supplies, articles, or equipment for the contractor under a contract to which this chapter applies. . (9) 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 203(i), is further amended by adding at the end the following: (G) Employers of employees of staffing companies and other covered employees An employer shall also be responsible for the rights and protections of this Act with regard to one or more covered employees (as defined in section 6(c)(1) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 206(c)(1) )) provided by another employer to perform labor for the employer. . (10) Federal Unemployment Tax Act (FUTA) (A) In general Section 3306(w) of the Internal Revenue Code of 1986, as amended by section 203(j), is amended by adding at the end the following new paragraph: (7) Paragraph (8) of section 3(d) of such Act. . (B) Effective date The amendment made by subparagraph (A) shall apply to services rendered on or after January 1, 2022. (b) Equitable treatment for employees of staffing companies and other covered employees (1) In general Section 6 of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 206 ) is amended by inserting after subsection (b) the following: (c) Employees of staffing companies and other covered employees (1) Definition of covered employee In this subsection, the term covered employee means an employee provided by another employer to perform labor for the employer, including a temporary or short-term contract employee. (2) Wages for covered employees (A) In general No employer shall pay wages to a covered employee provided by another employer to perform labor for the employer, or allow a covered employee provided by another employer to perform labor for the employer at wages, at a rate less than the prevailing rate at which the employer for whom the labor is performed pays wages to direct employees for similar work on jobs the performance of which requires similar skill, effort, and responsibility, and which are performed under similar working conditions, except as provided in subparagraph (B). (B) Exceptions An employer may pay a covered employee a wage at a rate less than the wage rate required under subparagraph (A) if— (i) such payment is made pursuant to— (I) a seniority system; (II) a merit system; (III) a system that measures rate of pay by quantity or quality of production; or (IV) a differential based on any lawful factor other than employment status; and (ii) the rate is not less than 80 percent of the prevailing rate at which the employer for whom the labor is performed pays wages to direct employees for similar work on jobs the performance of which requires similar skill, effort, and responsibility, and which are performed under similar working conditions. (3) Increased wages for covered employees (A) In general In the case of a covered employee who is not provided with the same benefits as the employer for whom the labor is being performed provides to its direct employees, the employer for whom the labor is being performed shall pay the covered employee, or require the employer providing the covered employee to pay the covered employee, a wage rate that, subject to subparagraph (B), is not less than the sum of— (i) the wage rate required under paragraph (2); and (ii) the lesser of— (I) an amount equal to 25 percent of the wage rate required under paragraph (2); or (II) the amount the employee would have to pay to secure equivalent benefits without an employer’s assistance. (B) Minimum In no case shall the minimum wage rate required under subparagraph (A) be less than 125 percent of the minimum wage rate required under subsection (a)(1). . (2) Limiting exemptions Section 13 of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 213 ) is amended— (A) in the matter preceding paragraph (1) of subsection (a), by inserting and section 6(c) after this subsection ; (B) in subsection (d), by inserting (except for subsection (c) of such section) after sections 6 ; and (C) in subsection (f), by inserting (except for subsection (c) of such section) after sections 6 . (c) New protections for employees of staffing companies and other covered employees (1) In general Section 9 of the Fair Labor Standards Act of 1938, as added by section 102(a)(6)(C)(i), is further amended by adding at the end the following: (b) Protections for employees of staffing companies and other covered employees (1) Definition of covered employee In this subsection, the term covered employee has the meaning given the term in section 6(c)(1). (2) Registration of providing employers (A) In general Each employer that provides covered employees to perform labor for another employer shall register with the Secretary each year, in accordance with this subsection and regulations of the Secretary. Each such providing employer shall include with the registration— (i) proof of an employer account number for the purposes of the payment of unemployment insurance contributions; (ii) proof of valid workers' compensation insurance in effect at the time of registration and covering all covered employees performing labor for the employer; and (iii) a report containing the information described in paragraph (7)(A)(ix), in the aggregate for all covered employees of the providing employer that performed labor for another employer in the preceding calendar year and disaggregated by branch office. (B) Registration fee The Secretary shall assess each employer that registers under subparagraph (A) a nonrefundable registration fee equal to the sum of— (i) $1,000 per year; and (ii) an additional $250 for each branch office of the employer. (C) Immediate reporting of workers' compensation lapse In any case where the workers' compensation insurance of an employer required to register under subparagraph (A) lapses— (i) the employer shall report the lapse to the Secretary; and (ii) the Secretary shall suspend the employer’s registration until the employer’s workers’ compensation insurance is reinstated. (D) Authority to deny, suspend, or revoke registration (i) In general The Secretary shall have the authority to deny, suspend, or revoke the registration of an employer under subparagraph (A) if warranted by violations of this subsection or of any other Federal, State, or local worker protection law. (ii) Duty to notify An employer whose registration under subparagraph (A) is denied, suspended, or revoked shall notify, both by telephone and in writing, each of its covered employees and each of the employers for whom its covered employees perform labor within 24 hours of any denial, suspension, or revocation of its registration. (E) Ineligibility An employer requesting to register with the Secretary under subparagraph (A) is ineligible if, within the 5 years immediately preceding the date of the employer's registration request, the employer or any of its officers, directors, partners, or managers, or any owner of 25 percent or greater beneficial interest, has been involved, as officer, director, partner, manager, or owner, in another employer whose registration under such subparagraph was revoked or suspended without being reinstated. (F) Website The Secretary shall create and maintain a public website that includes— (i) a list of all employers whose registration under subparagraph (A) is in good standing; (ii) a list of all employers whose registration under subparagraph (A) has been suspended, including the reason for the suspension, the date the suspension was initiated, and, if known, the date the suspension is to be lifted; and (iii) a list of all employers whose registration under subparagraph (A) has been revoked, including the reason for the revocation and the date the registration was revoked. (3) Employers for whom employees perform labor (A) In general No employer for whom a covered employee is provided by another employer to perform labor may enter into a contract or any other agreement for such labor with any employer not registered under paragraph (2)(A). (B) Verification (i) Requirements for receiving employers An employer for whom a covered employee is provided by another employer to perform labor shall verify the providing employer’s status with the Secretary of Labor before entering into a contract or other agreement with the providing employer, and at annual intervals thereafter. (ii) Requirements for providing employers An employer that provides a covered employee to another employer to perform labor shall provide any employer for whom its covered employee performs labor with proof of valid registration under paragraph (2)(A) before entering into any contract or other agreement with the receiving employer. (C) List of registered employers Upon request, the Secretary shall provide to any requesting party a list of employers registered under paragraph (2)(A) and an employer may rely in good faith on the information on such list provided by the Secretary. (4) No work restrictions No employer that provides a covered employee to perform labor for another employer shall— (A) restrict the right of a covered employee to accept direct employment with an employer for whom the covered employee has performed labor; (B) restrict the right of an employer for whom the covered employee has performed labor to offer such direct employment; or (C) charge any fee, either to the covered employee or an employer for whom the covered employee has performed labor, for the covered employee converting to direct employment with such employer. (5) Prohibition on permatemp workers (A) Conversion of temporary workers to direct employees After a covered employee performs labor for an employer for 1,040 total hours during any 12-month period, such employer shall convert the covered employee to a direct employee of such employer. (B) Prohibitions on evasion (i) No multiple contracts An employer shall not terminate or end the agreement under which a covered employee is providing labor to the employer and then reengage such covered employee at a later date in order to evade the requirements of this subsection. (ii) No replacement employees An employer shall not terminate or end the agreement under which a covered employee is providing labor to the employer and then engage a different covered employee in order to evade the requirements of this subsection. (6) Employment notices (A) In general Whenever an employer agrees to provide 1 or more covered employees to perform labor for another employer, the providing employer shall provide to each covered employee and to the other employer, at the time of dispatch, a statement containing the following information on a form approved by the Secretary: (i) The name of the covered employee. (ii) The name, address, and phone number of the providing employer that has agreed to the dispatch. (iii) The name, address, and phone number of the employer for whom the covered employee will perform labor. (iv) The name, address, and phone number of the providing employer’s workers’ compensation insurance carrier. (v) The address and phone number of the nearest regional office of the Department of Labor. (vi) The name of the position, the nature of the work to be performed, and the types of equipment, clothing, and training that are required for the task. (vii) The wages offered, including the hourly rate of pay and the hourly rate of overtime pay, should overtime hours be performed. (viii) The designated pay day. (ix) The anticipated daily start times and daily end times. (x) The anticipated duration of the dispatch. (xi) The terms of transportation. (xii) Whether meals or equipment, or both, are provided and the cost of the meal and equipment to the covered employee, if any. (B) Duration If a covered employee who is provided by an employer to perform labor for another employer is assigned to the same employer for more than 1 day, the providing employer is required to provide the employment information described in subparagraph (A) only on— (i) the first day of the assignment; and (ii) if any of the terms described in subparagraph (A) are changed, the first day of such change. (C) Confirmation of work sought If an employer that provides covered employees to other employers to perform labor does not place a covered employee with an employer for whom to perform labor for a particular day, the providing employer shall, upon request, provide the covered employee with a written and signed confirmation that the covered employee sought work, which shall include the name of the providing employer, the name and address of the covered employee, and the date and time that the covered employee received the confirmation. (D) No covered employees during labor disputes No employer may provide a covered employee to perform labor at any workplace where a strike, lockout, or other labor dispute exists. (7) Recordkeeping (A) Providing employer Whenever an employer provides covered employees to perform labor for another employer, the providing employer shall keep the following records with respect to the covered employees: (i) The name, address, and telephone number for each employer to whom covered employees were sent to perform labor, including each worksite to which covered employees were sent, and the date of the transaction effectuating the agreement between employers. (ii) For each covered employee, the name, address, and specific location of the worksite, the type of labor performed, the number of hours worked, and the hourly rate of pay. (iii) The name and title of all individuals responsible for the transaction on behalf of the employer for whom the covered employee is performing labor. (iv) Any specific qualifications or attributes of an employee that are requested by the employer for whom the covered employee performs labor. (v) Copies of all contracts (if any) or other agreements with, and all invoices from, the employer for whom the covered employee performs labor. (vi) Copies of all employment notices provided in accordance with paragraph (6)(A). (vii) Deductions to be made from the covered employee’s compensation, made by either the providing employer or the employer for whom the covered employee performs labor, for the covered employee’s transportation, food, equipment, withheld income tax, withheld social security payments, and any other deduction. (viii) Documentation verifying the actual cost of any equipment or meal charged to a covered employee. (ix) The race and gender of each covered employee performing labor. (x) Any additional information as shall be required by regulation of the Secretary. (B) Transmission requirements (i) In general The employer for whom the covered employee is performing labor shall transmit all information required under subparagraph (A)(ii) to the employer who has provided such covered employee not later than 7 days following the last day of the work week worked for which the covered employee performed work for the employer. (ii) Interaction with other requirements The failure of an employer for whom a covered employee is performing labor to transmit the information required under this subparagraph shall not exempt the covered employee’s providing employer from any other recordkeeping requirements of this subsection. (8) Meals If a covered employee is provided with a meal, the covered employee shall not be charged more than the actual cost of the meal. A covered employee shall not be charged for any meal not consumed by the covered employee. Purchase of a meal by a covered employee shall not be a condition of employment or performance of labor. (9) Transportation (A) In general A covered employee may not be charged any fee for transport to or from a designated worksite by either the employer who is providing the covered employee for the performance of labor or the employer for whom the covered employee is performing labor. (B) Responsibility The employer who is providing a covered employee to perform labor for another employer is responsible for the conduct and performance of any person whom the employer secures to transport the covered employee to or from a designated worksite and for the safety of the vehicle used for such transport, unless the transporter is a part of public mass transportation or a common carrier. (C) Referral limitations The employer who is providing a covered employee to perform labor for another employer may not refer the covered employee to any person for transportation to or from a worksite unless that person is— (i) part of public mass transportation; or (ii) providing the transportation for no fee. (D) Vehicle requirements Any motor vehicle owned or operated by an employer who is providing a covered employee to another employer that is used for the covered employee’s transportation to or from a worksite must have a seat and safety belt for each passenger and must be operated by a driver with a valid license to operate such motor vehicle. (E) Round-trip transportation If a covered employee is provided with transportation to a worksite by either the covered employee’s providing employer or the employer for whom the covered employee is performing labor, then the covered employee shall be provided with transportation back to the point of origin unless the covered employee agrees prior to leaving for the worksite that the covered employee already has secured or will secure alternative transportation at the end of the covered employee’s shift. (F) Reimbursement and minimum compensation In any case where an employer providing a covered employee to perform labor for another employer dispatches a covered employee to a job that does not exist, the providing employer shall— (i) refund the covered employee’s reasonable transportation costs; and (ii) pay the covered employee compensation equivalent to 2 hours of work. (10) Equipment For any safety equipment, specialized clothing, accessories, or any other items required by the nature of the work, either by law, custom, or the employer for whom a covered employee is performing labor, the covered employee— (A) shall not be charged for the items provided by the providing employer or the employer for whom the covered employee is performing labor, unless the covered employee negligently damages or destroys such items; and (B) if the covered employee is required to purchase any such items, the employer for whom the covered employee is performing labor shall refund the cost of such items, including any related shipping or handling, to the covered employee. (11) Other charges No covered employee shall be charged by the employer who is providing the covered employee to perform labor, or the employer for whom the covered employee is performing work, for any of the following: (A) Registering with the covered employee’s providing employer. (B) Obtaining work assignments. (C) Drug tests. (D) Background checks. (E) Debit cards used for payment of wages or any other method of wage payment. . (2) Penalties (A) Prohibited acts Section 15(a) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 215(a) ), as amended by section 102(a)(3)(B), is further amended by adding at the end the following: (8) to violate any of the provisions of section 9(b). . (B) Penalties Section 16(e) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 216(e) ), as amended by section 102(a)(7)(B), is further amended by adding at the end the following: (9) Fines and penalties regarding temporary and other covered employees (A) In general The Secretary may, after notice and an opportunity for a hearing, assess a civil penalty not to exceed $6,000 against any employer that violates any of the provisions of section 9(b) (except for paragraph (2)(A) or (3) of such section). Each violation of such section 9(b) for each day of the violation and for each covered employee shall constitute a separate and distinct violation of such section 9(b). (B) Registration violations The Secretary may, after notice and an opportunity for a hearing, assess a civil penalty against any employer that fails to register with the Secretary of Labor in accordance with section 9(b)(2)(A), including any rules issued under such section, of $500 per violation. Each day during which an employer operates without registering shall be a separate and distinct violation of such section. (C) Civil penalty Any employer for whom a covered employee performs labor that violates section 9(b)(3) shall be subject to a civil penalty of $500. Each day during which such employer contracts with a covered employee’s employer who is not registered with the Secretary of Labor under section 9(b)(2)(A) shall constitute a separate and distinct offense. (D) Revocation The Secretary may revoke the registration of an employer under section 9(b)(2)(A) in any case where an employer willfully, as determined by the Department, commits a violation of this section within 3 years of an earlier violation of such section. . 205. Licensors (a) Fair Labor Standards Act of 1938 (1) In general Section 3(d) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 203(d) ), as amended by section 204(a)(1), is further amended by adding at the end the following: (9) Licensors An entity licensing its brand, name, or other likeness to an employer, or other entity responsible for the rights and protections of this Act with regard to the employees of such employer, for consideration shall also be responsible for the rights and protections of this Act with regard to the employees of such employer. . (2) Indemnification Section 16 of the Fair Labor Standards Act of 1938, as amended by section 203(a)(2), is further amended by adding at the end the following: (j) Licensees and licensors (1) Indemnification by licensor An employer or other entity that is found to be in violation of this Act shall have the right to indemnification as described in paragraph (2) from an entity licensing its brand, name, or other likeness to the employer or other entity, in any case where the violation was— (A) at the behest of the licensor; (B) at the direction of the licensor; (C) pursuant to any policies, agreements, or contractual obligations emanating from the licensor; or (D) due to other direct or indirect control or pressure from the licensor. (2) Process for and type of indemnification Indemnification under paragraph (1)— (A) may be sought by a licensee in any court of competent jurisdiction; and (B) shall include a full recovery from the licensor of all compensatory and punitive damages, civil monetary penalties, attorney’s fees, or other amounts required to be paid by the licensee as a result of the violation of this Act. (3) Prohibition on waiver (A) In general A licensor shall not require or otherwise request a licensee to waive the licensee's right to indemnification under this subsection. (B) Penalty If a licensor violates subparagraph (A)— (i) any indemnification waiver shall be null and void; and (ii) the licensor shall be subject to a civil penalty of $100,000. (4) Prohibition on retaliation (A) In general A licensor shall not end the license agreement with, take adverse action in relation to, or otherwise discriminate against, a licensee for pursuing indemnification under this subsection. (B) Penalty A licensor who violates subparagraph (A) shall be subject to a civil penalty of $100,000. . (b) National Labor Relations Act (1) In general Section 2(2) of the National Labor Relations Act ( 29 U.S.C. 152(2) ), as amended by section 204(a)(2), is further amended by adding at the end the following: (G) Licensors An entity licensing its brand, name, or other likeness to an employer, or other entity responsible for the rights and protections of this Act with regard to the employees of such employer, for consideration shall also be responsible for the rights and protections of this Act with regard to the employees of such employer. . (2) Indemnification Section 12 of the National Labor Relations Act ( 29 U.S.C. 162 ), as amended by section 203(b)(2), is further amended by adding at the end the following: (h) Licensees and licensors (1) Indemnification by licensor An employer or other entity that is found to be in violation of this Act shall have the right to indemnification as described in paragraph (2) from an entity licensing its brand, name, or other likeness to the employer or other entity, in any case where the violation was— (A) at the behest of the licensor; (B) at the direction of the licensor; (C) pursuant to any policies, agreements, or contractual obligations emanating from the licensor; or (D) due to other direct or indirect control or pressure from the licensor. (2) Process for and type of indemnification Indemnification under paragraph (1)— (A) may be sought by a licensee in any court of competent jurisdiction; and (B) shall include a full recovery from the licensor of all compensatory and punitive damages, civil monetary penalties, attorney’s fees, or other amounts required to be paid by the licensee as a result of the violation of this Act. (3) Prohibition on waiver (A) In general A licensor shall not require or otherwise request a licensee to waive the licensee's right to indemnification under this subsection. (B) Penalty If a licensor violates subparagraph (A)— (i) any indemnification waiver shall be null and void; and (ii) the licensor shall be subject to a civil penalty of $100,000. (4) Prohibition on retaliation (A) In general A licensor shall not end the license agreement with, take adverse action in relation to, or otherwise discriminate against, a licensee for pursuing indemnification under this subsection. (B) Penalty A licensor who violates subparagraph (A) shall be subject to a civil penalty of $100,000. . (c) Occupational Safety and Health Act of 1970 (1) In general Section 3(5) of the Occupational Safety and Health Act of 1970 ( 29 U.S.C. 652(5) ), as amended by section 204(a)(3), is further amended by adding at the end the following: (H) Licensors An entity licensing its brand, name, or other likeness to an employer, or other entity responsible for the rights and protections of this Act with regard to the employees of an employer, or other entity responsible for the rights and protections of this Act with regard to the employees of such employer, for consideration shall also be responsible for the rights and protections of this Act with regard to the employees of such employer. . (2) Indemnification Section 17 of the Occupational Safety and Health Act of 1970 ( 29 U.S.C. 666 ), as amended by section 203(c)(2), is further amended by adding at the end the following: (p) Licensees and licensors (1) Indemnification by licensor An employer or other entity that is found to be in violation of this Act shall have the right to indemnification as described in paragraph (2) from an entity licensing its brand, name, or other likeness to the employer or other entity, in any case where the violation was— (A) at the behest of the licensor; (B) at the direction of the licensor; (C) pursuant to any policies, agreements, or contractual obligations emanating from the licensor; or (D) due to other direct or indirect control or pressure from the licensor. (2) Process for and type of indemnification Indemnification under paragraph (1)— (A) may be sought by a licensee in any court of competent jurisdiction; and (B) shall include a full recovery from the licensor of all compensatory and punitive damages, civil monetary penalties, attorney’s fees, or other amounts required to be paid by the licensee as a result of the violation of this Act. (3) Prohibition on waiver (A) In general A licensor shall not require or otherwise request a licensee to waive the licensee's right to indemnification under this subsection. (B) Penalty If a licensor violates subparagraph (A)— (i) any indemnification waiver shall be null and void; and (ii) the licensor shall be subject to a civil penalty of $100,000. (4) Prohibition on retaliation (A) In general A licensor shall not end the license agreement with, take adverse action in relation to, or otherwise discriminate against, a licensee for pursuing indemnification under this subsection. (B) Penalty A licensor who violates subparagraph (A) shall be subject to a civil penalty of $100,000. . (d) Federal Mine Safety and Health Act of 1977 (1) In general Section 4B of the Federal Mine Safety and Health Act of 1977, as amended by section 204(a)(4), is further amended by adding at the end the following: (e) Licensors An entity licensing its brand, name, or other likeness to an operator of a coal or other mine, or other entity responsible for the rights and protections of this Act with regard to the miners employed by such operator, for consideration shall also be responsible for the rights and protections of this Act with regard to the miners employed by such operator. . (2) Indemnification Section 118 of the Federal Mine Safety and Health Act of 1977, as amended by section 203(d)(2), is further amended by adding at the end the following: (d) Licensees and licensors (1) Indemnification by licensor An operator or other entity that is found to be in violation of this Act shall have the right to indemnification as described in paragraph (2) from an entity licensing its brand, name, or other likeness to the operator or other entity, in any case where the violation was— (A) at the behest of the licensor; (B) at the direction of the licensor; (C) pursuant to any policies, agreements, or contractual obligations emanating from the licensor; or (D) due to other direct or indirect control or pressure from the licensor. (2) Process for and type of indemnification Indemnification under paragraph (1)— (A) may be sought by a licensee in any court of competent jurisdiction; and (B) shall include a full recovery from the licensor of all compensatory and punitive damages, civil monetary penalties, attorney’s fees, or other amounts required to be paid by the licensee as a result of the violation of this Act. (3) Prohibition on waiver (A) In general A licensor shall not require or otherwise request a licensee to waive the licensee's right to indemnification under this subsection. (B) Penalty If a licensor violates subparagraph (A)— (i) any indemnification waiver shall be null and void; and (ii) the licensor shall be subject to a civil penalty of $100,000. (4) Prohibition on retaliation (A) In general A licensor shall not end the license agreement with, take adverse action in relation to, or otherwise discriminate against, a licensee for pursuing indemnification under this subsection. (B) Penalty A licensor who violates subparagraph (A) shall be subject to a civil penalty of $100,000. . (e) Migrant and Seasonal Agricultural Worker Protection Act (1) In general Section 5(c) of the Migrant and Seasonal Agricultural Worker Protection Act, as amended by section 204(a)(5), is further amended by adding at the end the following: (6) Licensors An entity licensing its brand, name, or other likeness to a farm labor contractor, agricultural employer, or agricultural association, or other entity responsible for the rights and protections of this Act with regard to the migrant agricultural workers or seasonal agricultural workers of the farm labor contractor, agricultural employer, or agricultural association, for consideration shall also be responsible for the rights and protections of this Act with regard to such migrant agricultural workers and seasonal agricultural workers. . (2) Indemnification Section 505 of the Migrant and Seasonal Agricultural Worker Protection Act, as amended by section 203(e)(2), is further amended by adding at the end the following: (d) Licensees and licensors (1) Indemnification by licensor A farm labor contractor, agricultural employer, agricultural association, or other entity that is found to be in violation of this Act shall have the right to indemnification as described in paragraph (2) from an entity licensing its brand, name, or other likeness to the farm labor contractor, agricultural employer, agricultural association, or other entity, in any case where the violation was— (A) at the behest of the licensor; (B) at the direction of the licensor; (C) pursuant to any policies, agreements, or contractual obligations emanating from the licensor; or (D) due to other direct or indirect control or pressure from the licensor. (2) Process for and type of indemnification Indemnification under paragraph (1)— (A) may be sought by a licensee in any court of competent jurisdiction; and (B) shall include a full recovery from the licensor of all compensatory and punitive damages, civil monetary penalties, attorney’s fees, or other amounts required to be paid by the licensee as a result of the violation of this Act. (3) Prohibition on waiver (A) In general A licensor shall not require or otherwise request a licensee to waive the licensee's right to indemnification under this subsection. (B) Penalty If a licensor violates subparagraph (A)— (i) any indemnification waiver shall be null and void; and (ii) the licensor shall be subject to a civil penalty of $100,000. (4) Prohibition on retaliation (A) In general A licensor shall not end the license agreement with, take adverse action in relation to, or otherwise discriminate against, a licensee for pursuing indemnification under this subsection. (B) Penalty A licensor who violates subparagraph (A) shall be subject to a civil penalty of $100,000. . (f) Davis-Bacon Act (1) In general Section 3144b of title 40, United States Code, as amended by section 204(a)(6), is further amended by adding at the end the following: (e) Licensors An entity licensing its brand, name, or other likeness to a contractor or subcontractor, or other entity responsible for the rights and protections of this subchapter with regard to the laborers or mechanics of such contractor or subcontractor, for consideration shall also be responsible for the rights and protections of this subchapter with regard to such laborers or mechanics. . (2) Indemnification Section 3144c of title 40, United States Code, as amended by section 203(f)(2), is further amended by adding at the end the following: (g) Licensees and licensors (1) Indemnification by licensor A contractor, subcontractor, or other entity that is found to be in violation of this subchapter shall have the right to indemnification as described in paragraph (2) from an entity licensing its brand, name, or other likeness to the employer or other entity, in any case where the violation was— (A) at the behest of the licensor; (B) at the direction of the licensor; (C) pursuant to any policies, agreements, or contractual obligations emanating from the licensor; or (D) due to other direct or indirect control or pressure from the licensor. (2) Process for and type of indemnification Indemnification under paragraph (1)— (A) may be sought by a licensee in any court of competent jurisdiction; and (B) shall include a full recovery from the licensor of all compensatory and punitive damages, civil monetary penalties, attorney’s fees, or other amounts required to be paid by the licensee as a result of the violation of this subchapter. (3) Prohibition on waiver (A) In general A licensor shall not require or otherwise request a licensee to waive the licensee's right to indemnification under this subsection. (B) Penalty If a licensor violates subparagraph (A)— (i) any indemnification waiver shall be null and void; and (ii) the licensor shall be subject to a civil penalty of $100,000. (4) Prohibition on retaliation (A) In general A licensor shall not end the license agreement with, take adverse action in relation to, or otherwise discriminate against, a licensee for pursuing indemnification under this subsection. (B) Penalty A licensor who violates subparagraph (A) shall be subject to a civil penalty of $100,000. . (g) McNamara-O'Hara Service Contract Act (1) In general Section 6701a of title 41, United States Code, as amended by section 204(a)(7), is further amended by adding at the end the following: (e) Licensors An entity licensing its brand, name, or other likeness to a contractor, or other entity responsible for the rights and protections of this chapter with regard to the service employees of such contractor, for consideration shall also be responsible for the rights and protections of this chapter with regard to such service employees. . (2) Indemnification Section 6707 of title 41, United States Code, as amended by section 203(g)(2), is further amended by adding at the end the following: (d) Licensees and licensors (1) Indemnification by licensor A contractor, subcontractor, or other entity that is found to be in violation of this chapter shall have the right to indemnification as described in paragraph (2) from an entity licensing its brand, name, or other likeness to the employer or other entity, in any case where the violation was— (A) at the behest of the licensor; (B) at the direction of the licensor; (C) pursuant to any policies, agreements, or contractual obligations emanating from the licensor; or (D) due to other direct or indirect control or pressure from the licensor. (2) Process for and type of indemnification Indemnification under paragraph (1)— (A) may be sought by a licensee in any court of competent jurisdiction; and (B) shall include a full recovery from the licensor of all compensatory and punitive damages, civil monetary penalties, attorney’s fees, or other amounts required to be paid by the licensee as a result of the violation of this chapter. (3) Prohibition on waiver (A) In general A licensor shall not require or otherwise request a licensee to waive the licensee's right to indemnification under this subsection. (B) Penalty If a licensor violates subparagraph (A)— (i) any indemnification waiver shall be null and void; and (ii) the licensor shall be subject to a civil penalty of $100,000. (4) Prohibition on retaliation (A) In general A licensor shall not end the license agreement with, take adverse action in relation to, or otherwise discriminate against, a licensee for pursuing indemnification under this subsection. (B) Penalty A licensor who violates subparagraph (A) shall be subject to a civil penalty of $100,000. . (h) Walsh-Healey Public Contracts Act (1) In general Section 6501b of title 41, United States Code, as amended by section 204(a)(8), is further amended by adding at the end the following: (e) Licensors An entity licensing its brand, name, or other likeness to a contractor, or other entity responsible for the rights and protections of this chapter with regard to individuals employed in the manufacture or furnishing of materials, supplies, articles, or equipment under a contract to which this chapter applies by such contractor, for consideration shall also be responsible for the rights and protections of this chapter with regard to such individuals. . (2) Indemnification Section 6506b of title 41, United States Code, as amended by section 203(h)(2), is further amended by adding at the end the following: (g) Licensees and licensors (1) Indemnification by licensor A contractor, subcontractor, or other entity that is found to be in violation of this chapter shall have the right to indemnification as described in paragraph (2) from an entity licensing its brand, name, or other likeness to the employer or other entity, in any case where the violation was— (A) at the behest of the licensor; (B) at the direction of the licensor; (C) pursuant to any policies, agreements, or contractual obligations emanating from the licensor; or (D) due to other direct or indirect control or pressure from the licensor. (2) Process for and type of indemnification Indemnification under paragraph (1)— (A) may be sought by a licensee in any court of competent jurisdiction; and (B) shall include a full recovery from the licensor of all compensatory and punitive damages, civil monetary penalties, attorney’s fees, or other amounts required to be paid by the licensee as a result of the violation of this chapter. (3) Prohibition on waiver (A) In general A licensor shall not require or otherwise request a licensee to waive the licensee's right to indemnification under this subsection. (B) Penalty If a licensor violates subparagraph (A)— (i) any indemnification waiver shall be null and void; and (ii) the licensor shall be subject to a civil penalty of $100,000. (4) Prohibition on retaliation (A) In general A licensor shall not end the license agreement with, take adverse action in relation to, or otherwise discriminate against, a licensee for pursuing indemnification under this subsection. (B) Penalty A licensor who violates subparagraph (A) shall be subject to a civil penalty of $100,000. . (i) Family and Medical Leave Act of 1993 (1) In general Section 101(4) of the Family and Medical Leave Act of 1993 ( 29 U.S.C. 2611 ), as amended by section 204(a)(9), is further amended by adding at the end the following: (H) Licensors An entity licensing its brand, name, or other likeness to an employer for consideration shall also be responsible for the rights and protections of this Act with regard to the employees of such employer. . (2) Indemnification Section 107 of the Family and Medical Leave Act of 1993 ( 29 U.S.C. 2617 ), as amended by section 203(i)(2), by inserting after subsection (g) the following: (h) Licensees and licensors (1) Indemnification by licensor An employer or other entity that is found to be in violation of this Act shall have the right to indemnification as described in paragraph (2) from an entity licensing its brand, name, or other likeness to the employer or other entity, in any case where the violation was— (A) at the behest of the licensor; (B) at the direction of the licensor; (C) pursuant to any policies, agreements, or contractual obligations emanating from the licensor; or (D) due to other direct or indirect control or pressure from the licensor. (2) Process for and type of indemnification Indemnification under paragraph (1)— (A) may be sought by a licensee in any court of competent jurisdiction; and (B) shall include a full recovery from the licensor of all compensatory and punitive damages, civil monetary penalties, attorney’s fees, or other amounts required to be paid by the licensee as a result of the violation of this Act. (3) Prohibition on waiver (A) In general A licensor shall not require or otherwise request a licensee to waive the licensee's right to indemnification under this subsection. (B) Penalty If a licensor violates subparagraph (A)— (i) any indemnification waiver shall be null and void; and (ii) the licensor shall be subject to a civil penalty of $100,000. (4) Prohibition on retaliation (A) In general A licensor shall not end the license agreement with, take adverse action in relation to, or otherwise discriminate against, a licensee for pursuing indemnification under this subsection. (B) Penalty A licensor who violates subparagraph (A) shall be subject to a civil penalty of $100,000. . (j) Federal Unemployment Tax Act (FUTA) (1) In general Section 3306(w) of the Internal Revenue Code of 1986, as amended by section 204(a)(10), is amended by adding at the end the following new paragraphs: (8) Paragraph (9) of section 3(d) of such Act. (9) Subsection (j) of section 16 of such Act. . (2) Effective date The amendment made by paragraph (1) shall apply to services rendered on or after January 1, 2022. 206. Labor contractors (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 205(a)(1), is further amended by adding at the end the following: (10) Labor contractors An employer shall also be responsible for the rights and protections of this Act with regard to an employee of a labor contractor, or any labor subcontractors under a labor contractor, in any case where such labor contractor or labor subcontractor is responsible for the rights and protections of this Act with respect to the employee. . (b) National Labor Relations Act (1) In general Section 2(2) of the National Labor Relations Act ( 29 U.S.C. 152(2) ), as amended by section 205(b), is further amended by adding at the end the following: (H) Labor contractors An employer shall also be responsible for the rights and protections of this Act with regard to an employee of a labor contractor, or any labor subcontractors under a labor contractor, in any case where such labor contractor or labor subcontractor is responsible for the rights and protections of this Act with respect to the employee. . (2) Unfair labor practice Section 8(a) of the National Labor Relations Act ( 29 U.S.C. 158(a) ), as amended by section 102(b)(3)(B), is further amended by adding at the end the following: (8) to reject contractors in whole or in part because the contractors have workforces represented by labor organizations, including— (A) when the employer initially solicits bids for a contract for an as-yet-unchosen contractor to provide a good or service to the employer, by rejecting any contractor in whole or in part because the contractor's workforce is represented by a labor organization; or (B) when an employer has an existing contract with a contractor and the contractor’s employees are considering to organize or have chosen to organize in accordance with the rights provided under section 7, by— (i) ending the employer’s existing contract with the contractor; (ii) not renewing the employer’s existing contract with the contractor if the contract is set to expire; or (iii) threatening to end or not renew the employer’s existing contract with the contractor, in whole or in part because of the labor organization consideration or representation described in the matter preceding clause (i). . (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 205(c)(1), is further amended by adding at the end the following: (I) Labor contractors An employer shall also be responsible for the rights and protections of this Act with regard to an employee of a labor contractor, or any labor subcontractors under a labor contractor, in any case where such labor contractor or labor subcontractor is responsible for the rights and protections of this Act with respect to the employee. . (d) Federal Mine Safety and Health Act of 1977 Section 4B of the Federal Mine Safety and Health Act of 1977, as amended by section 205(d), is further amended by adding at the end the following: (f) Labor Contractors An employer shall also be responsible for the rights and protections of this Act with regard to a miner of a coal or other mine employed by a labor contractor, or any labor subcontractors under a labor contractor, in any case where such labor contractor or labor subcontractor is responsible for the rights and protections of this Act with respect to the miner. . (e) Migrant and Seasonal Agricultural Worker Protection Act Section 4(c) of the Migrant and Seasonal Agricultural Worker Protection Act, as amended by section 205(e)(1), is further amended by adding at the end the following: (7) Labor Contractors A farm labor contractor, agricultural employer, or agricultural association shall also be responsible for the rights and protections of this Act with regard to a migrant agricultural worker or seasonal agricultural worker of a labor contractor, or any labor subcontractors under a labor contractor, in any case where such labor contractor or labor subcontractor is responsible for the rights and protections of this Act with respect to the migrant agricultural worker or seasonal agricultural worker. . (f) Davis-Bacon Act Section 3144b of title 40, United States Code, as amended by section 205(f)(1), is further amended by adding at the end the following: (f) Contractors' liability for labor subcontractors An employer who is a contractor subject to the requirements of this subchapter shall also be responsible for the rights and protections of this subchapter with regard to an employee of any labor subcontractor of the contractor, or any labor subcontractors under a labor subcontractor, in any case where— (1) the employee is performing work under a contract to which this subchapter applies; and (2) such labor subcontractor, or labor subcontractor of a labor subcontractor, is responsible for the rights and protections of this subchapter with respect to a laborer or mechanic. . (g) McNamara-O'Hara Service Contract Act Section 6701a of title 41, United States Code, as amended by section 205(g), is further amended by adding at the end the following: (f) Contractors' liability for labor subcontractors An employer who is a contractor subject to the requirements of this chapter shall also be responsible for the rights and protections of this chapter with regard to an employee of any labor subcontractor of the contractor, or any labor subcontractors under a labor subcontractor, in any case where— (1) the employee is performing work under a contract to which this chapter applies; and (2) such labor subcontractor, or labor subcontractor of a labor subcontractor, is responsible for the rights and protections of this chapter with respect to a service employee. . (h) Walsh-Healey Public Contracts Act Section 6501b of title 41, United States Code, as amended by section 205(h), is further amended by adding at the end the following: (f) Contractors' liability for labor subcontractors An employer who is a contractor subject to the requirements of this chapter shall also be responsible for the rights and protections of this chapter with regard to an employee of any labor subcontractor of the contractor, or any labor subcontractors under a labor subcontractor, in any case where— (1) the employee is employed in the manufacture or furnishing of materials, supplies, articles, or equipment under a contract to which this chapter applies; and (2) such labor subcontractor, or labor subcontractor of a labor subcontractor, is responsible for the rights and protections of this chapter with respect to the employee. . (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 ), as amended by section 205(i), is further amended by adding at the end the following: (I) Labor contractors An employer shall also be responsible for the rights and protections of this Act with regard to an employee of a labor contractor, or any labor subcontractors under a labor contractor, in any case where such labor contractor or labor subcontractor is responsible for the rights and protections of this Act with respect to the employee. . (j) Federal Unemployment Tax Act (FUTA) (1) In general Section 3306(w) of the Internal Revenue Code of 1986, as amended by section 205(j), is amended by adding at the end the following new paragraph: (10) Paragraph (10) 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. 207. Supply chain responsibility plan (a) Fair Labor Standards Act of 1938 (1) Supply chain responsibility plan Section 11 of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 211 ) is amended by adding at the end the following: (e) Supply chain responsibility plan (1) Definitions In this subsection: (A) Covered employer The term covered employer means an employer that employs 100 or more employees. (B) Covered laws The term covered laws means all of the following: (i) This Act. (ii) The National Labor Relations Act. (iii) The Occupational Safety and Health Act of 1970. (iv) The Federal Mine Safety and Health Act of 1977. (v) The Migrant and Seasonal Agricultural Worker Protection Act. (vi) Subchapter IV of chapter 31 of title 40, United States Code (commonly known as the Davis-Bacon Act ). (vii) Chapter 67 of title 41, United States Code (commonly known as the McNamara-O'Hara Service Contract Act ). (viii) Chapter 65 of title 41, United States Code (commonly known as the Walsh-Healey Public Contracts Act of 1936 ). (ix) The Family and Medical Leave Act of 1993. (x) Violations of State law required under section 3304 of the Internal Revenue Code of 1986. (xi) The applicable labor laws of any country in which an employer that is part of a covered employer’s supply chain operates, with respect to employees employed in such country. (2) Development of plan Each covered employer shall develop and carry out a supply chain responsibility plan described in paragraph (3) that describes how the employer will attempt to ensure that the employer’s primary supply chain does not include any employer that regularly violates— (A) an individual covered law; or (B) the covered laws, when considered as a whole. (3) Contents Each supply chain responsibility plan shall include, at a minimum— (A) an assessment of— (i) the violations under each covered law by each employer with more than 19 employees in the covered employer’s supply chain; and (ii) the violations under each covered law by each employer that provides a large volume or dollar amount of the covered employer’s supply chain; (B) a plan for— (i) removing from the covered employer’s supply chain each employer described in subparagraph (A) that regularly violates— (I) an individual covered law; or (II) the covered laws, when considered as a whole; or (ii) if clause (i) is not possible with respect to a particular employer described in subparagraph (A) due to an extremely limited number of employers that could fulfill specific portions of the covered employer’s supply chain, utilizing the leverage that the covered employer has as a purchaser to pressure the particular employer to improve compliance with the covered laws; (C) a list of the organizations that the covered employer has identified to assist the covered employer in this process, including workers’ rights advocates; and (D) any other information the Secretary determines necessary. (4) Submission Each covered employer shall annually submit the supply chain responsibility plan to the Secretary and shall post the most recent plan publicly on the covered employer’s website. . (2) Penalties Section 16(e) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 216(e) ), as amended by section 204(c)(2)(B), is further amended by adding at the end the following: (10) Penalties for violations regarding supply chain responsibility plans Any person who violates section 11(e)(3) by not submitting or posting a complete supply chain responsibility plan each year shall be subject to a civil penalty of $50,000 for each month of noncompliance. . (b) National labor relations act (1) Supply chain responsibility plan Section 8 of the National Labor Relations Act ( 29 U.S.C. 158 ), as amended by section 102(b)(5), is further amended by adding at the end the following: (i) Supply chain responsibility plan It shall be an unfair labor practice for an employer who is a covered employer, as defined in section 11(e)(1) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 211(e)(1) ), to fail to annually— (1) submit, as part of the covered employer's supply chain responsibility plan under section 11(e) of such Act, the information required under such Act that relates to this Act; and (2) include such information in the plan posted publicly on the covered employer’s website. . (2) Penalties Section 12 of the National Labor Relations Act ( 29 U.S.C. 162 ), as amended by section 102(b)(7)(B), is further amended by inserting after subsection (c) the following: (d) Civil penalty for failure To submit a complete supply chain responsibility plan Any person who violates section 8(i) shall be subject to a civil penalty of $50,000 for each month of noncompliance. . (c) Occupational Safety and Health Act of 1970 (1) Supply chain responsibility plan Section 5 of the Occupational Safety and Health Act of 1970 ( 29 U.S.C. 654 ) is amended by adding at the end the following: (c) Supply chain responsibility plan An employer who is a covered employer, as defined in section 11(e)(1) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 211(e)(1) ), shall annually— (1) submit, as part of the employer's supply chain responsibility plan under section 11(e) of such Act, the information required under such section that relates to this Act; and (2) include such information in the plan posted publicly on the employer’s website. . (2) Penalties Section 17 of the Occupational Safety and Health Act of 1970 ( 29 U.S.C. 666 ), as amended by section 205(c)(2), is further amended by inserting after subsection (k) the following: (l) Penalties for violations regarding supply chain responsibility plans Any person who violates section 5(c) shall be subject to a civil penalty of $50,000 for each month of noncompliance. . (d) Federal Mine Safety and Health Act of 1977 (1) Supply chain responsibility plan Section 109 of the Federal Mine Safety and Health Act of 1977 ( 30 U.S.C. 819 ) is amended— (A) in the section heading, by inserting ; supply chain responsibility plans after decisions ; and (B) by adding at the end the following: (e) Supply chain responsibility plans Each operator that is a covered employer, as defined in section 11(e)(1) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 211(e)(1) ), shall annually— (1) submit, as part of the operator's supply chain responsibility plan under section 11(e) of such Act, the information required under such section that relates to this Act; and (2) include such information in the plan posted publicly on the operator's website. . (2) Penalties Section 110 of the Federal Mine Safety and Health Act of 1977 ( 30 U.S.C. 820 ), as amended by section 102(d)(6)(B), is further amended by inserting after subsection (j) the following: (k) Civil penalty for failure To submit a supply chain responsibility plan Any operator who violates section 109(e) shall be subject to a civil penalty of $50,000 for each month of noncompliance. . (e) Migrant and Seasonal Agricultural Worker Protection Act (1) Supply chain responsibility plan Title IV of the Migrant and Seasonal Agricultural Worker Protection Act ( 29 U.S.C. 1841 et seq.), as amended by section 102(e)(3)), is further amended by adding at the end the following: 406. Supply chain responsibility plan (a) Definition of responsible entity In this section, the term responsible entity means a farm labor contractor, agricultural employer, or agricultural association, that is a covered employer, as defined in section 11(e)(1) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 211(e)(1) ). (b) Supply chain responsibility plans Each responsible entity shall annually— (1) submit, as part of the responsible entity's supply chain responsibility plan under section 11(e) of such Act, the information required under such section that relates to this Act; and (2) include such information in the plan posted publicly on the responsible entity's website. . (2) Penalties Section 503(a) of the Migrant and Seasonal Agricultural Worker Protection Act ( 29 U.S.C. 1853(a) ), as amended by section 102(e)(6)(B), is further amended by adding at the end the following: (5) Penalties for violations regarding supply chain responsibility plans Any person who violates section 406(b) shall be subject to a civil penalty of $50,000 for each month of noncompliance. . (f) Davis-Bacon Act (1) Supply chain responsibility plan Subchapter IV of chapter 31 of title 40, United States Code, as amended by this Act, is further amended by inserting after section 3143 the following: 3143a. Supply chain responsibility plan (a) Covered contractor In this section, the term covered contractor means a contractor or subcontractor— (1) for a contract subject to the requirements of this subchapter; and (2) that is a covered employer, as defined in section 11(e)(1) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 211(e)(1) ). (b) In general Each covered contractor shall annually— (1) submit, as part of the covered contractor's supply chain responsibility plan under section 11(e) of such Act, the information required under such section that relates to this subchapter; and (2) include such information in the plan posted publicly on the covered contractor's website. . (2) Penalties Section 3144c of title 40, United States Code, as amended by section 204(f)(2), is further amended by inserting after subsection (b) the following: (c) Penalties for violations regarding supply chain responsibility plans Any person who violates section 3143a of this title shall be subject to a civil penalty of $50,000 for each month of noncompliance. . (g) McNamara-O'Hara Service Contract Act Chapter 67 of title 41, United States Code, as amended by section 202(b)(7)(A), is further amended by inserting after section 6704 the following: 6705. Supply chain responsibility plan (a) Covered contractor In this section, the term covered contractor means a contractor or subcontractor— (1) for a contract subject to the requirements of this chapter; and (2) that is a covered employer, as defined in section 11(e)(1) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 211(e)(1) ). (b) In general Each covered contractor shall annually— (1) submit, as part of the covered contractor's supply chain responsibility plan under section 11(e) of such Act, the information required under such section that relates to this chapter; and (2) include such information in the plan posted publicly on the covered contractor's website. (c) Penalties for violations regarding supply chain responsibility plans Any person who violates subsection (b) of this section shall be subject to a civil penalty of $50,000 for each month of noncompliance. . (h) Walsh-Healey Public Contracts Act of 1936 (1) Supply chain responsibility plan Chapter 65 of title 41, United States Code, is further amended by inserting after section 6502 the following: 6502a. Supply chain responsibility plan (a) Covered contractor In this section, the term covered contractor means a contractor or subcontractor— (1) for a contract subject to the requirements of this chapter; and (2) that is a covered employer, as defined in section 11(e)(1) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 211(e)(1) ). (b) In general Each covered contractor shall annually— (1) submit, as part of the covered contractor's supply chain responsibility plan under section 11(e) of such Act, the information required under such section that relates to this chapter; and (2) include such information in the plan posted publicly on the covered contractor's website. . (2) Penalties Section 6506a of title 41, United States Code, as amended by section 202(c)(8), is further amended by inserting after subsection (b) the following: (c) Penalties for violations regarding supply chain responsibility plans Any person who violates section 6502a shall be subject to a civil penalty of $50,000 for each month of noncompliance. . (i) Family and Medical Leave Act of 1993 Section 109 of the Family and Medical Leave Act of 1993 ( 29 U.S.C. 2619 ) is amended— (1) in the section heading, by inserting ; supply chain responsibility plan after Notice ; (2) by striking In general .—Each and inserting the following: Notice .— (1) In general Each ; (3) by redesignating subsection (b) as paragraph (2) of subsection (a), and aligning the margins of such paragraph with the margins of paragraph (1); (4) in paragraph (2) (as so redesignated), by striking this section and inserting this subsection ; and (5) by adding at the end the following: (b) Supply chain responsibility plan (1) In general Each employer that is a covered employer, as defined in section 11(e)(1) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 211(e)(1) ), shall annually— (A) submit, as part of the employer's supply chain responsibility plan under section 11(e) of such Act, the information required under such section that relates to this Act; and (B) include such information in the plan posted publicly on the employer’s website. (2) Penalty Any person who violates paragraph (1) shall be subject to a civil penalty of $50,000 for each month of noncompliance. . (j) Federal Unemployment Tax Act (FUTA) (1) State law requirement Section 3304 of the Internal Revenue Code of 1986 (relating to approval of State unemployment compensation laws) is amended— (A) in subsection (a)— (i) in paragraph (18), by striking and at the end; (ii) by redesignating paragraph (19) as paragraph (20); (iii) by inserting after paragraph (18) the following new paragraph: (19) each employer that is a covered employer, as defined in section 11(e)(1) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 211(e)(1) ) is required to comply with subsection (h); and ; and (iv) by adding at the end the following: (h) Supply chain responsibility plans Each employer that is a covered employer, as defined in section 11(e)(1) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 211(e)(1) ), shall annually— (1) submit, as part of the employer's supply chain responsibility plan under section 11(e) of such Act, the information required under such section that relates to this Act; and (2) include such information in the plan posted publicly on the operator's website. . (2) Effective date The amendments made by paragraph (1) shall apply to weeks of unemployment beginning on or after the earlier of— (A) the date the State changes its statutes, regulations, or policies in order to comply with such amendments; or (B) January 1, 2022. 208. Conforming amendments (a) Davis-Bacon Act The table of sections of subchapter IV of chapter 31 of title 40, United States Code, as amended by section 102(f)(7), is further amended— (1) by inserting after the item relating to section 3413 the following: Sec. 3143a. Supply chain responsibility plan. ; and (2) by inserting after the item relating to section 3144a the following: Sec. 3144b. Applicability to multiple employers and related entities. . (b) McNamara-O'Hara Service Contract Act Chapter 67 of title 41, United States Code, is amended— (1) in the table of sections— (A) by redesignating the items relating to sections 6705, 6706, and 6707 as the items relating to sections 6706, 6708, and 6709, respectively; (B) by inserting after the item relating to section 6701 the following: Sec. 6701a. Applicability to multiple employers and related entities. ; (C) by inserting after the item relating to section 6704 the following: Sec. 6705. Supply chain responsibility plan. ; and (D) by inserting after the item relating to section 6706 the following: Sec. 6707. Civil penalties assessed against owners, directors, officers, managing agents, and large shareholders; indemnification. . (2) in section 6704(b), by striking sections 6705 to 6707(d) and inserting sections 6706 to 6709(d) ; and (3) in section 6705(d), by striking section 6707(a)–(d) and inserting section 6709(a)–(d) . (c) Walsh-Healey Public Contracts Act The table of sections for chapter 65 of title 41, United States Code, as amended by section 102(g)(7), is further amended— (1) by inserting after the item relating to section 6501a the following: Sec. 6501b. Applicability to multiple employers and related entities. ; and (2) by inserting after the item relating to section 6502 the following: Sec. 6502a. Supply chain responsibility plan. . III Public transparency on workers' rights violations 301. Consumer right to know about compliance with workers' rights (a) In general The Fair Labor Standards Act of 1938 ( 29 U.S.C. 201 et seq.) is amended by inserting after section 18C ( 29 U.S.C. 218c ) the following: 18D. Compliance ratings (a) Requirement for posting notice An employer shall post a notice, provided each calendar year by the Secretary under subsection (b), of the compliance of the employer with the covered labor laws during the 3 calendar years preceding the calendar year for which the notice applies (referred to in this section as the applicable 3-year period ). Such notice shall be posted— (1) in each location of the employer— (A) in a window that is located not less than 5 feet from the main entry way of such location; or (B) if such a location does not have a window located within 5 feet of the main entry way, otherwise within 5 feet of the main entry way; (2) on the official website of the employer, if the employer has such a website; and (3) until the notice is replaced by a revised notice under this section or a notice for a subsequent calendar year. (b) Rating process (1) In general The Secretary shall establish— (A) in accordance with paragraph (2), a process for annually— (i) reviewing the compliance of each employer with the covered labor laws during the applicable 3-year period; and (ii) providing a rating to each employer indicating the level of such compliance; and (B) a notice for each employer to post in accordance with subsection (a), which shall— (i) be easy for the public to understand; (ii) indicate the rating under this subsection of the employer for the calendar year; and (iii) otherwise be consistent across all employers. (2) Rating (A) In general The notice required under subsection (a) shall provide a rating of the employer’s compliance with the covered labor laws during the applicable 3-year period in the form of one of 4 ratings described in subparagraph (B), including— (i) a concise summary, in English, of the compliance of the employer with the covered labor laws during the applicable 3-year period; (ii) an emoji face or cartoon face that reflects such summary; and (iii) a color that reflects such summary. (B) Regulations The Secretary shall prescribe through regulations the number, degree, and extent of violations of the covered labor laws by an employer during the applicable 3-year period that would qualify for each of the following 4 ratings: (i) A rating of Excellent — (I) meaning the employer has had no or few violations of the covered labor laws during such period; and (II) which shall be paired with a very open-mouthed smiling face and a deep-green background color. (ii) A rating of Good — (I) meaning the employer has had some violations of the covered labor laws during such period, but no major or extensive violations; and (II) which shall be paired with a wide-smiling face and a light-green background color. (iii) A rating of Okay — (I) meaning the employer has had, during such period— (aa) multiple violations of the covered labor laws; or (bb) very few major or extensive violations of the covered labor laws; and (II) which shall be paired with a flat-mouthed and unenthusiastic face and a yellow background color. (iv) A rating of Needs Improvement — (I) meaning the employer has had, during such period— (aa) several violations of the covered labor laws; (bb) more than a few major or extensive violations of the covered labor laws; or (cc) willful or repeated violations of the covered labor laws (as defined by the Secretary with respect to the covered labor laws); and (II) which shall be paired with a frowning sad face and a gray background color. (3) Review process For each review under this section of the compliance of an employer with the covered labor laws, including any additional review under subsection (c) or (d), the Secretary shall review— (A) any information the employer provides to the Secretary with respect to the compliance of the employer with the covered labor laws for the applicable 3-year period; (B) any information provided by any other individual or organization with respect to such compliance; and (C) any other information the Secretary determines appropriate for the review. (c) Additional review upon claim of inaccuracy (1) Request If an employer claims that the rating provided for the employer under this section is inaccurate, the employer may, not later than 10 days after receiving the notice under this section, request an additional review by the Secretary of the employer's compliance with the covered labor laws during the applicable 3-year period and a revised rating and notice. (2) Determination (A) In general For each request made under paragraph (1), the Secretary shall conduct an additional review described in such paragraph and make a determination of whether to provide a revised rating and notice. (B) Revised rating granted If the Secretary determines that an alteration of the rating is warranted, the Secretary may provide the employer a revised rating and notice under this section. The employer shall, in accordance with subsection (a), post any such revised notice not later than 5 days after receiving such revised notice. (C) Revised rating denied If the Secretary determines that no alteration of the rating is warranted— (i) the Secretary shall notify the employer of such determination; and (ii) the employer shall, in accordance with subsection (a), post the notice for which such review was conducted not later than 5 days after receiving the notification described in clause (i). (D) Posting of notice during review If an employer claims that a rating under this section for a calendar year is inaccurate and submits a request under paragraph (1) for an additional review of such rating, the employer may refrain from posting the notice under this section for such calendar year during the period of such additional review. If an employer so refrains from posting such notice, the employer shall keep the notice the employer received under this section for the previous calendar year (if the employer received such a notice) posted in accordance with subsection (a) during the period of such additional review. (E) Limitation An employer may not request an additional review of a rating for a calendar year under this subsection if the employer has previously requested such an additional review for the rating for such calendar year. (d) Additional review upon remedy of violations (1) Request If, after receiving a notice under this section for a calendar year, an employer claims that the employer has, not later than the end of such calendar year, fully remedied a violation that affected the rating of the employer under this section for that year and has reformed the practices of the employer to ensure future compliance with the covered labor laws, the employer may request an additional review of the employer's compliance with the covered labor laws, during the period beginning on the first day of the applicable 3-year period and ending on the date on which the employer submits the request, and a revised rating and notice under this section for the year. (2) Determination (A) In general For each request made under paragraph (1), the Secretary shall conduct a review described in such paragraph and make a determination as to whether to provide a revised rating and notice. (B) Revised rating granted If the Secretary determines that the employer has, during the period beginning on the first day of the applicable 3-year period and ending on the date on which the employer submits the request under paragraph (1), fully remedied the violation with respect to which the employer submitted the request and has reformed its practices to ensure future compliance with the covered labor laws— (i) the Secretary may provide the employer with a revised rating and notice under this section; and (ii) if the Secretary provides a revised rating and notice under clause (i), the employer shall, in accordance with subsection (a), post such revised notice not later than 5 days after receiving such revised notice. (C) Revised rating denied If the Secretary decides not to grant a revised rating and notice under this subsection, the Secretary shall notify the employer of such decision. (D) Posting of notice during review An employer shall keep the notice for which a review under this subsection applies posted in accordance with subsection (a) until the Secretary, if applicable, provides a revised rating and notice under subparagraph (B)(i). (e) Final review Except for the reviews described in subsections (c) and (d), there shall be no other reviews, including judicial review, of the determinations of the Secretary regarding the rating of an employer under this section. (f) Posting in local newspaper If an employer violates a provision of this section for more than one month, the employer shall, in addition to the penalties under section 16(e)(11), publish the notice provided under this section in the most prominent local newspaper, as determined by the Secretary. (g) Public website (1) In general The Secretary shall establish and maintain a public website that includes— (A) the most recent rating, and all previous ratings, under this section for each employer, which shall be accessible through a simple search feature— (i) by employer name, city, or zip code; and (ii) by location on a digital map; and (B) an accounting of every violation by each employer during the 3-year period of the most recent rating under this section. (2) Rankings The Secretary may use the website under this subsection to provide rankings of employers, including by comparing employers to other employers in the same industry. (h) Definition of covered labor laws For purposes of this section, the term covered labor laws means, to the extent applicable to the employer, each of the following: (1) This Act. (2) The Occupational Safety and Health Act of 1970 ( 29 U.S.C. 651 et seq.). (3) The Federal Mine Safety and Health Act of 1977 ( 30 U.S.C. 801 et seq.). (4) The Migrant and Seasonal Agricultural Worker Protection Act ( 29 U.S.C. 1801 et seq.). (5) The National Labor Relations Act ( 29 U.S.C. 151 et seq.). (6) Subchapter IV of chapter 31 of title 40, United States Code (commonly known as the Davis-Bacon Act ). (7) Chapter 67 of title 41, United States Code (commonly known as the McNamara-O'Hara Service Contract Act ). (8) Section 503 of the Rehabilitation Act of 1973 ( 29 U.S.C. 793 ). (9) The Family and Medical Leave Act of 1993 ( 29 U.S.C. 2601 et seq.). (10) Title VII of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e et seq.). (11) The Americans with Disabilities Act of 1990 ( 42 U.S.C. 12101 et seq.). (12) The Age Discrimination in Employment Act of 1967 ( 29 U.S.C. 621 et seq.). (13) Title II of the Genetic Information Nondiscrimination Act of 2008 ( 42 U.S.C. 2000ff et seq.). (14) Any State law that the Secretary determines is equivalent to a law described in any of paragraphs (1) through (13). . (b) Penalties Section 16(e) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 216(e) ), as amended by section 207(a)(2), is further amended by adding at the end the following: (11) Penalties for violations of compliance rating provisions Any person who violates section 18D shall be subject to a civil penalty of not more than $1,000 for each employee of the employer working at the location where the violation occurred and for each day of the violation. . IV Creating broad and increasing worker protections 401. General standards for applying and interpreting workers' rights (a) Fair Labor Standards Act of 1938 The Fair Labor Standards Act of 1938 ( 29 U.S.C. 201 et seq.) is amended by adding at the end the following: 20. General standards for applying and interpreting workers' rights (a) Interpretation of protections and exemptions (1) Protections All protections afforded employees under this Act, including as applied through the definitions under section 3, shall be interpreted expansively in favor of the employee or individual claiming classification as an employee. (2) Exemptions and exclusions (A) In general All exemptions and exclusions under this Act, including as applied through the definitions under section 3, shall be interpreted narrowly against the employer, or person alleged to be an employer, and limited in application to those persons or circumstances plainly and unmistakably within the language and spirit of the exemption or exclusion. (B) Clear and convincing evidence Any person asserting the applicability of an exemption or exclusion under this Act shall prove such applicability by clear and convincing evidence. (b) No-Less-Protection rule (1) In general The Secretary shall not take any action to reduce a protection afforded an employee under this Act through any regulation, guidance, opinion, ruling, standard, order, adjudicative decision, or other interpretation from the protection provided to the employee through a prior regulation, guidance, opinion, ruling, standard, order, adjudicative decision, or other interpretation in effect on the day before the date of such action, unless such reduction is explicitly and specifically mandated by an Act of Congress. (2) Request for Congressional action The Secretary may submit a proposal to Congress for a reduction described in paragraph (1), but shall not take any action described in such paragraph without an explicit and specific mandate by an Act of Congress. (3) Standard of deference Notwithstanding chapter 7 of title 5, United States Code, in any action for judicial review of an agency action under such chapter, a reviewing court shall defer to a regulation, guidance, opinion, ruling, standard, order, adjudicative decision, or other interpretation issued by the agency that increases or otherwise strengthens a protection afforded to an employee under this Act unless such regulation, guidance, opinion, ruling, standard, order, adjudicative decision, or other interpretation is plainly erroneous or inconsistent with this Act. . (b) National Labor Relations Act The National Labor Relations Act ( 29 U.S.C. 151 et seq.) is amended by adding at the end the following: 20. General standards for applying and interpreting workers' rights (a) Interpretation of protections and exemptions (1) Protections All protections afforded employees under this Act, including as applied through the definitions under section 2, shall be interpreted expansively in favor of the employee or individual claiming classification as an employee. (2) Exemptions and exclusions (A) In general All exemptions and exclusions under this Act, including as applied through the definitions under section 2, shall be interpreted narrowly against the employer, or person alleged to be an employer, and limited in application to those persons or circumstances plainly and unmistakably within the language and spirit of the exemption or exclusion. (B) Clear and convincing evidence Any person asserting the applicability of an exemption or exclusion under this Act shall prove such applicability by clear and convincing evidence. (b) No-Less-Protection rule (1) In general The Board, the General Counsel, and any regional director shall not take any action to reduce a protection afforded an employee under this Act through any regulation, guidance, opinion, ruling, standard, order, adjudicative decision, or other interpretation from the protection provided to the employee through a prior regulation, guidance, opinion, ruling, standard, order, adjudicative decision, or other interpretation in effect on the day before the date of such action, unless such reduction is explicitly and specifically mandated by an Act of Congress. (2) Request for Congressional action The Board may submit a proposal to Congress for a reduction described in paragraph (1), but the Board, the General Counsel, or any regional director shall not take any action described in such paragraph without an explicit and specific mandate by an Act of Congress. (3) Standard of deference Notwithstanding chapter 7 of title 5, United States Code, in any action for judicial review of an agency action under such chapter, a reviewing court shall defer to a regulation, guidance, opinion, ruling, standard, order, adjudicative decision, or other interpretation issued by the agency that increases or otherwise strengthens a protection afforded to an employee under this Act unless such regulation, guidance, opinion, ruling, standard, order, adjudicative decision, or other interpretation is plainly erroneous or inconsistent with this Act. . (c) Occupational Safety and Health Act of 1970 The Occupational Safety and Health Act of 1970 ( 29 U.S.C. 651 et seq.) is amended by inserting after section 32 ( 29 U.S.C. 677 ) the following: 32A. General standards for applying and interpreting workers' rights (a) Interpretation of protections and exemptions (1) Protections All protections afforded employees under this Act, including as applied through the definitions under section 3, shall be interpreted expansively in favor of the employee or individual claiming classification as an employee. (2) Exemptions and exclusions (A) In general All exemptions and exclusions under this Act, including as applied through the definitions under section 3, shall be interpreted narrowly against the employer, or person alleged to be an employer, and limited in application to those persons or circumstances plainly and unmistakably within the language and spirit of the exemption or exclusion. (B) Clear and convincing evidence Any person asserting the applicability of an exemption or exclusion under this Act shall prove such applicability by clear and convincing evidence. (b) No-Less-Protection rule (1) In general The Secretary shall not take any action to reduce a protection afforded an employee under this Act through any regulation, guidance, opinion, ruling, standard, order, adjudicative decision, or other interpretation from the protection provided to the employee through a prior regulation, guidance, opinion, ruling, standard, order, adjudicative decision, or other interpretation in effect on the day before the date of such action, unless such reduction is explicitly and specifically mandated by an Act of Congress. (2) Request for Congressional action The Secretary may submit a proposal to Congress for a reduction described in paragraph (1), but shall not take any action described in such paragraph without an explicit and specific mandate by an Act of Congress. (3) Standard of deference Notwithstanding chapter 7 of title 5, United States Code, in any action for judicial review of an agency action under such chapter, a reviewing court shall defer to a regulation, guidance, opinion, ruling, standard, order, adjudicative decision, or other interpretation issued by the agency that increases or otherwise strengthens a protection afforded to an employee under this Act unless such regulation, guidance, opinion, ruling, standard, order, adjudicative decision, or other interpretation is plainly erroneous or inconsistent with this Act. . (d) Federal Mine Safety and Health Act of 1977 Title I of the Federal Mine Safety and Health Act ( 30 U.S.C. 811 et seq.), as amended by section 202(b)(4), is further amended by adding at the end the following: 119. General standards for applying and interpreting workers' rights (a) Interpretation of protections and exemptions (1) Protections All protections afforded under this Act, including any mandatory health or safety standard, rule, order, or regulation promulgated pursuant to this Act, to employees performing labor in a coal or other mine shall be interpreted expansively in favor of the employee or individual claiming classification as an employee. (2) Exemptions and exclusions (A) In general All exemptions and exclusions under this Act, including any mandatory health or safety standard, rule, order, or regulation promulgated pursuant to this Act, shall be interpreted narrowly against an operator of a coal or other mine employing employees performing labor in the coal or other mine, or person alleged to be such an operator, and limited in application to those persons or circumstances plainly and unmistakably within the language and spirit of the exemption or exclusion. (B) Clear and convincing evidence Any person asserting the applicability of an exemption or exclusion under this Act, including any mandatory health or safety standard, rule, order, or regulation promulgated pursuant to this Act, shall prove such applicability by clear and convincing evidence. (b) No-Less-Protection rule (1) In general The Secretary shall not take any action to reduce a protection afforded under this Act, including any mandatory health or safety standard, rule, order, or regulation promulgated pursuant to this Act, to an employee performing labor in a coal or other mine through any regulation, guidance, opinion, ruling, standard, order, adjudicative decision, or other interpretation from the protection provided to the employee through a prior regulation, guidance, opinion, ruling, standard, order, adjudicative decision, or other interpretation in effect on the day before the date of such action, unless such reduction is explicitly and specifically mandated by an Act of Congress. (2) Request for Congressional action The Secretary may submit a proposal to Congress for a reduction described in paragraph (1), but shall not take any action described in such paragraph without an explicit and specific mandate by an Act of Congress. (3) Standard of deference Notwithstanding chapter 7 of title 5, United States Code, in any action for judicial review of an agency action under such chapter, a reviewing court shall defer to a regulation, guidance, opinion, ruling, standard, order, adjudicative decision, or other interpretation issued by the agency that increases or otherwise strengthens a protection afforded to an employee performing labor in a coal or other mine under this Act, including any mandatory health or safety standard, rule, order, or regulation promulgated pursuant to this Act, unless such regulation, guidance, opinion, ruling, standard, order, adjudicative decision, or other interpretation is plainly erroneous or inconsistent with this Act, including any mandatory health or safety standard, rule, order, or regulation promulgated pursuant to this Act. . (e) Migrant and Seasonal Agricultural Worker Protection Act Part B of title V of the Migrant and Seasonal Agricultural Worker Protection Act ( 29 U.S.C. 1861 et seq.) is amended by adding at the end the following: 514. General standards for applying and interpreting workers' rights (a) Interpretation of protections and exemptions (1) Protections All protections afforded under this Act, including any regulation under this Act, to migrant agricultural workers or seasonal agricultural workers shall be interpreted expansively in favor of the worker or individual claiming classification as such a worker. (2) Exemptions and exclusion (A) In general All exemptions and exclusions under this Act, including any regulation under this Act, shall be interpreted narrowly against an agricultural employer, agricultural association, or farm labor contractor employing a migrant agricultural worker or seasonal agricultural worker, or person alleged to be such an employer, association, or contractor, and limited in application to those persons or circumstances plainly and unmistakably within the language and spirit of the exemption or exclusion. (B) Clear and convincing evidence Any person asserting the applicability of an exemption or exclusion under this Act, including a regulation under this Act, shall prove such applicability by clear and convincing evidence. (b) No-Less-Protection rule (1) In general The Secretary shall not take any action to reduce a protection afforded under this Act, including a regulation under this Act, to a migrant agricultural worker or a seasonal agricultural worker through any regulation, guidance, opinion, ruling, standard, order, adjudicative decision, or other interpretation from the protection provided to the worker through a prior regulation, guidance, opinion, ruling, standard, order, adjudicative decision, or other interpretation in effect on the day before the date of such action, unless such reduction is explicitly and specifically mandated by an Act of Congress. (2) Request for Congressional action The Secretary may submit a proposal to Congress for a reduction described in paragraph (1), but shall not take any action described in such paragraph without an explicit and specific mandate by an Act of Congress. (3) Standard of deference Notwithstanding chapter 7 of title 5, United States Code, in any action for judicial review of an agency action under such chapter, a reviewing court shall defer to a regulation, guidance, opinion, ruling, standard, order, adjudicative decision, or other interpretation issued by the agency that increases or otherwise strengthens a protection afforded under this Act, including a regulation under this Act, to a migrant agricultural worker or seasonal agricultural worker unless such regulation, guidance, opinion, ruling, standard, order, adjudicative decision, or other interpretation is plainly erroneous or inconsistent with this Act, including a regulation under this Act. . (f) Davis-Bacon Act (1) In general Subchapter IV of chapter 31, United States Code, is amended by adding at the end the following: 3149. General standards for applying and interpreting workers' rights (a) Interpretation of protections and exemptions (1) Protections All protections afforded under this subchapter to laborers and mechanics who are employees performing labor under a contract or subcontract to which this subchapter applies shall be interpreted expansively in favor of such laborer or mechanic or individual claiming classification as such a laborer or mechanic. (2) Exemptions and exclusions (A) In general All exemptions and exclusions under this subchapter shall be interpreted narrowly against a contractor or subcontractor of a contract to which this subchapter applies, or person alleged to be such a contractor or subcontractor, and limited in application to those persons or circumstances plainly and unmistakably within the language and spirit of the exemption or exclusion. (B) Clear and convincing evidence Any person asserting the applicability of an exemption or exclusion under this subchapter shall prove such applicability by clear and convincing evidence. (b) No-Less-Protection rule (1) In general The Secretary shall not take any action to reduce a protection afforded under this subchapter to a laborer or mechanic who is an employee performing labor under a contract or subcontract to which this subchapter applies through any regulation, guidance, opinion, ruling, standard, order, adjudicative decision, or other interpretation from the protection provided to such laborer or mechanic through a prior regulation, guidance, opinion, ruling, standard, order, adjudicative decision, or other interpretation in effect on the day before the date of such action, unless such reduction is explicitly and specifically mandated by an Act of Congress. (2) Request for Congressional action The Secretary may submit a proposal to Congress for a reduction described in paragraph (1), but shall not take any action described in such paragraph without an explicit and specific mandate by an Act of Congress. (3) Standard of deference Notwithstanding chapter 7 of title 5, United States Code, in any action for judicial review of an agency action under such chapter, a reviewing court shall defer to a regulation, guidance, opinion, ruling, standard, order, adjudicative decision, or other interpretation issued by the agency that increases or otherwise strengthens a protection afforded under this subchapter to a laborer or mechanic who is an employee performing labor under a contract or subcontract to which this subchapter applies unless such regulation, guidance, opinion, ruling, standard, order, adjudicative decision, or other interpretation is plainly erroneous or inconsistent with this subchapter. . (2) Table of sections The table of sections for subchapter IV of chapter 31 of title 40, United States Code, is amended by adding at the end the following: Sec. 3149. General standards for applying and interpreting workers' rights. (g) McNamara-O'Hara Service Contract Act Section 6709 of title 41, United States Code, as amended by section 202(b)(7)(A), is further amended by adding at the end the following: (g) General standards for applying and interpreting workers' rights (1) Interpretation of protections and exemptions (A) Protections All protections afforded service employees under this chapter shall be interpreted expansively in favor of the service employee or individual claiming classification as a service employee. (B) Exemptions and exclusions (i) In general All exemptions and exclusions under this chapter shall be interpreted narrowly against the contractor or subcontractor to which this chapter applies, or person alleged to be such a contractor or subcontractor, and limited in application to those persons or circumstances plainly and unmistakably within the language and spirit of the exemption or exclusion. (ii) Clear and convincing evidence Any person asserting the applicability of an exemption or exclusion under this chapter shall prove such applicability by clear and convincing evidence. (2) No-less-protection rule (A) In general The Secretary shall not take any action to reduce a protection afforded under this chapter to a service employee through any regulation, guidance, opinion, ruling, standard, order, adjudicative decision, or other interpretation from the protection provided to the service employee through a prior regulation, guidance, opinion, ruling, standard, order, adjudicative decision, or other interpretation in effect on the day before the date of such action, unless such reduction is explicitly and specifically mandated by an Act of Congress. (B) Request for Congressional action The Secretary may submit a proposal to Congress for a reduction described in subparagraph (A), but shall not take any action described in such subparagraph without an explicit and specific mandate by an Act of Congress. (C) Standard of deference Notwithstanding chapter 7 of title 5, United States Code, in any action for judicial review of an agency action under such chapter, a reviewing court shall defer to a regulation, guidance, opinion, ruling, standard, order, adjudicative decision, or other interpretation issued by the agency that increases or otherwise strengthens a protection afforded to a service employee under this chapter unless such regulation, guidance, opinion, ruling, standard, order, adjudicative decision, or other interpretation is plainly erroneous or inconsistent with this chapter. . (h) Walsh-Healey Public Contracts Act (1) In general Chapter 65 of title 41, United States Code, is amended by adding at the end the following: 6512. General standards for applying and interpreting workers' rights (a) Interpretation of protections and exemptions (1) Protections All protections afforded under this chapter to individuals performing any labor, with respect to the manufacture or furnishing of materials, supplies, articles, or equipment under a contract to which this chapter applies, who is an employee of the contractor of such contract, shall be interpreted expansively in favor of such individual or an individual claiming classification as such an individual. (2) Exemptions and exclusions (A) In general All exemptions and exclusions under this chapter shall be interpreted narrowly against the contractor of a contract to which this chapter applies, or person alleged to be such a contractor, and limited in application to those persons or circumstances plainly and unmistakably within the language and spirit of the exemption or exclusion. (B) Clear and convincing evidence Any person asserting the applicability of an exemption or exclusion under this chapter shall prove such applicability by clear and convincing evidence. (b) No-Less-Protection rule (1) In general The Secretary shall not take any action to reduce a protection afforded under this chapter to an individual performing any labor, with respect to the manufacture or furnishing of materials, supplies, articles, or equipment under a contract to which this chapter applies, who is an employee of the contractor of such contract, through any regulation, guidance, opinion, ruling, standard, order, adjudicative decision, or other interpretation from the protection provided to such individual through a prior regulation, guidance, opinion, ruling, standard, order, adjudicative decision, or other interpretation in effect on the day before the date of such action, unless such reduction is explicitly and specifically mandated by an Act of Congress. (2) Request for Congressional action The Secretary may submit a proposal to Congress for a reduction described in paragraph (1), but shall not take any action described in such paragraph without an explicit and specific mandate by an Act of Congress. (3) Standard of deference Notwithstanding chapter 7 of title 5, United States Code, in any action for judicial review of an agency action under such chapter, a reviewing court shall defer to a regulation, guidance, opinion, ruling, standard, order, adjudicative decision, or other interpretation issued by the agency that increases or otherwise strengthens a protection afforded under this chapter to an individual performing any labor, with respect to the manufacture or furnishing of materials, supplies, articles, or equipment under a contract to which this chapter applies, who is an employee of the contractor of such contract, unless such regulation, guidance, opinion, ruling, standard, order, adjudicative decision, or other interpretation is plainly erroneous or inconsistent with this chapter. . (2) Table of sections The table of sections for chapter 65 of title 41, United States Code, is amended by adding at the end the following: Sec. 6512. General standards for applying and interpreting workers' rights. (i) Family and Medical Leave Act of 1993 (1) In general Title I of the Family and Medical Leave Act of 1993 ( 29 U.S.C. 2611 et seq.) is amended by adding at the end the following: 110. General standards for applying and interpreting workers' rights (a) Interpretation of protections and exemptions (1) Protections All protections afforded eligible employees under this title, including as applied through the definitions under section 3, shall be interpreted expansively in favor of the eligible employee or individual claiming classification as an eligible employee. (2) Exemptions and exclusions (A) In general All exemptions and exclusions under this title, including as applied through the definitions under section 3, shall be interpreted narrowly against the employer, or person alleged to be an employer, and limited in application to those persons or circumstances plainly and unmistakably within the language and spirit of the exemption or exclusion. (B) Clear and convincing evidence Any person asserting the applicability of an exemption or exclusion under this title shall prove such applicability by clear and convincing evidence. (b) No-Less-Protection rule (1) In general The Secretary shall not take any action to reduce a protection afforded an eligible employee under this title through any regulation, guidance, opinion, ruling, standard, order, adjudicative decision, or other interpretation from the protection provided to the eligible employee through a prior regulation, guidance, opinion, ruling, standard, order, adjudicative decision, or other interpretation in effect on the day before the date of such action, unless such reduction is explicitly and specifically mandated by an Act of Congress. (2) Request for Congressional action The Secretary may submit a proposal to Congress for a reduction described in paragraph (1), but shall not take any action described in such paragraph without an explicit and specific mandate by an Act of Congress. (3) Standard of deference Notwithstanding chapter 7 of title 5, United States Code, in any action for judicial review of an agency action under such chapter, a reviewing court shall defer to a regulation, guidance, opinion, ruling, standard, order, adjudicative decision, or other interpretation issued by the agency that increases or otherwise strengthens a protection afforded to an eligible employee under this title unless such regulation, guidance, opinion, ruling, standard, order, adjudicative decision, or other interpretation is plainly erroneous or inconsistent with this title. . (2) Table of contents The table of contents in section 1(b) of the Family and Medical Leave Act of 1993 is amended by inserting after the item relating to section 109 the following: Sec. 110. General standards for applying and interpreting workers' rights. . (j) Federal Unemployment Tax Act (FUTA) (1) In general Section 3306(w) of the Internal Revenue Code of 1986, as amended by section 206(j), is amended by adding at the end the following new paragraph: (8) Section 20 of such Act. . (2) Effective date The amendment made by paragraph (1) shall apply to services rendered on or after January 1, 2022. 402. Statutes of limitation (a) FLSA; Walsh-Healey Public Contracts Act; Davis-Bacon Act Section 6 of the Portal-to-Portal Act of 1947 ( 29 U.S.C. 255 ) is amended— (1) in the matter preceding subsection (a), by striking for unpaid minimum wages, unpaid overtime compensation, or liquidated damages, ; and (2) in subsection (a)— (A) by striking two years each place it appears and inserting 4 years ; (B) by inserting or repeated after willful ; and (C) by striking three years and inserting 6 years . (b) National Labor Relations Act Section 10(b) of the National Labor Relations Act ( 29 U.S.C. 160(b) ) is amended— (1) by striking six months prior to the filing of the charge with the Board and inserting 4 years prior to the filing of the charge with the Board, or 6 years prior to such filing in the case of an alleged willful or repeated unfair labor practice, ; and (2) by striking six-month period and inserting 4-year period, or 6-year period, as applicable, . (c) Occupational Safety and Health Act of 1970 Section 9(c) of the Occupational Safety and Health Act of 1970 ( 29 U.S.C. 658(c) ) is amended by striking expiration of six months following the occurrence of any violation and inserting “expiration of— (1) except as provided in paragraph (2), 4 years following the occurrence of any violation described in subsection (a); or (2) in the case of a violation described in subsection (a) that is willful or repeated, 6 years following the occurrence of the violation. . (d) Family and Medical Leave Act of 1993 Section 107(c) of the Family and Medical Leave Act of 1993 ( 29 U.S.C. 2617(c) ) is amended— (1) in paragraph (1), by striking 2 years and inserting 4 years ; and (2) in paragraph (2), by striking 3 years and inserting 6 years . V General provisions 501. Severability If any provision of this Act or the application of such provision to any person, entity, government, or circumstance, is held to be unconstitutional, the remainder of this Act, or the application of such provision to all other persons, entities, governments, or circumstances, shall not be affected thereby.