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SECTION 1. SHORT TITLE.

This Act may be cited as the ''Employee Benefits Protection Act of
2003''.

SEC. 2. FINDINGS AND PURPOSE.

(a) Findings.--Congress makes the following findings:
(1) The intent of the Employee Retirement Income Security
Act of 1974 to protect the pension and welfare benefits of
workers is frustrated by the practice of mislabeling or
relabeling employees to improperly exclude them from employee
benefit plans. Employees are wrongly denied benefits when they
are misclassified or reclassified as temporary employees, part-
time employees, leased employees, agency employees, staffing
firm employees, and independent contractors. If their true
employment status were recognized, these misclassified and
reclassified employees would be eligible to participate in
employee pension and welfare benefit plans because such plans
are offered to other employees performing the same or
substantially the same work and working for the same employer.
(2) Mislabeled employees are often paid through staffing,
temporary, employee leasing, or other similar firms to give the
appearance that the employees do not work for their employer.
Employment contracts and reports to government agencies also
are used to give the erroneous impression that mislabeled
employees work for staffing, temporary, employee leasing, or
other similar firms, when the facts of the work arrangement do
not meet the common law standard for determining the employment
relationship. Employees are also mislabeled as contractors and
paid from non-payroll accounts to give the appearance that they
are not employees of their employer. These practices violate
the Employee Retirement Income Security Act of 1974.
(3) Employers are amending their employee benefit plans to
add provisions that exclude mislabeled employees from
participation in the plan even in the event that such employees
are determined to be common law employees and otherwise
eligible to participate in the plan. These plan provisions
violate the Employee Retirement Income Security Act of 1974.
(4) As a condition of employment or continued service,
employees are often required to sign documents that purport to
waive their right to participate in employee benefit plans.
Such documents inaccurately claim to limit the authority of the
courts and applicable Federal agencies to correct the
mislabeling and relabeling of employees and to enforce the
terms of plans providing for their participation. This practice
violates the Employee Retirement Income Security Act of 1974.
(5) As a condition of continued employment or service,
employees are often required to sign documents that purport to
waive their right to bring a lawsuit under the Employee
Retirement Income Security Act of 1974. Such documents
inaccurately claim to limit the ability of the courts and
applicable Federal agencies to obtain any payments or benefits
in the event that the waiver is found not to be knowing and
voluntary. This practice violates the Employee Retirement
Income Security Act of 1974.
(b) Purpose.--The purpose of this Act is to clarify applicable
provisions of the Employee Retirement Income Security Act of 1974 to
ensure that employees are not improperly excluded from participation in
employee benefit plans as a result of mislabeling or reclassifying
their employment status.

SEC. 3. ADDITIONAL STANDARDS RELATING TO MINIMUM PARTICIPATION
REQUIREMENTS.

(a) Required Inclusion of Service.--Section 202(a)(3) of the
Employee Retirement Income Security Act of 1974 (29 U.S.C. 1052(a)(3))
is amended by adding at the end the following new subparagraph:
''(E) For purposes of this section, in determining years of service
and hours of service--
''(i) service shall include all service for the employer as
an employee under the common law, irrespective of whether the
individual--
''(I) is paid through a staffing firm, temporary
help firm, payroll agency, employment agency, or other
such similar arrangement,
''(II) is paid directly by the employer under an
arrangement purporting to characterize an employee
under the common law as other than an employee, or
''(III) is paid from an account not designated as a
payroll account, and
''(ii) in any case in which an employer, plan sponsor, or
fiduciary (including any administrator, officer, trustee, or
custodian) changes the job classification of any person from
employee to leased employee, agency employee, staffing firm
employee, independent contractor, or any similar category, in
determining years of service and hours of service, service
shall include all service for the employer that the person
performs subsequent to such reclassification.''.
(b) Exclusion Precluded When Related to Certain Purported
Categorizations.--Section 202 of such Act (29 U.S.C. 1052) is amended
further by adding at the end the following new subsection:
''(c)(1) Subject to paragraph (2), a pension plan shall be treated
as failing to meet the requirements of this section if the plan
excludes from participation any person who performs the same work (or
substantially the same work) for the employer as other employees who
generally are not excluded from participation in the plan, irrespective
of the placement of such person in any category of workers (such as
temporary employees, part-time employees, leased employees, agency
employees, staffing firm employees, independent contractors, or any
similar category) which may be specified under the plan as ineligible
for participation.
''(2) Nothing in paragraph (1) shall be construed to preclude the
exclusion from participation in a pension plan of individuals who in
fact do not meet a minimum service period or minimum age which is
required under the terms of the plan and which is otherwise in
conformity with the requirements of this section.''.

SEC. 4. OBJECTIVE ELIGIBILITY CRITERIA IN PLAN INSTRUMENTS.

Section 402 of the Employee Retirement Income Security Act of 1974
(29 U.S.C. 1102) is amended by adding at the end the following new
subsection:
''(d)(1) The written instrument pursuant to which an employee
benefit plan is maintained shall set forth eligibility criteria which--
''(A) include and exclude employees on a uniform basis;
''(B) are based on reasonable job classifications other
than the mere labeling of a job position as something other
than an employee; and
''(C) are based on objective criteria stated in the
instrument itself for the inclusion or exclusion (other than
the mere listing of an employee as included or excluded).
''(2) No employee benefit plan may permit an employer or plan
sponsor to exclude any person from participation irrespective of the
placement of such employee in any category of workers (such as
temporary employees, leased employees, agency employees, staffing firm
employees, contractors, or any similar category), if the employee--
''(A) is an employee of the employer under the common law;
''(B) performs the same work (or substantially the same
work) for the employer as other employees who generally are not
excluded from participation in the plan; and
''(C) meets a minimum service period or minimum age which
is required under the terms of the plan.
''(3) In any case in which the employer of an individual who is a
participant in an employee benefit plan, the plan sponsor of such plan,
or a fiduciary of such plan requires such individual to convert to the
status of a temporary employee, leased employee, agency employee,
staffing firm employee, contractor, or any similar category as a
condition of continuing in the service of the employer, such individual
shall not cease to be treated under such plan or this title as a
participant in such plan by reason of such conversion.''.

SEC. 5. ENFORCEMENT.

Section 502 of the Employee Retirement Income Security Act of 1974
(29 U.S.C. 1132) is amended--
(1) in paragraphs (3)(B) and (5)(B) of subsection (a), by
striking ''other appropriate equitable relief'' and inserting
''other appropriate relief, including such additional relief as
a court of equity might have awarded in a case involving the
enforcement or administration of a trust, other equitable
relief, compensatory relief, or remedial relief'';
(2) in subsection (a)(3)(B), by striking ''or'' at the end
of clause (i) and inserting a comma, by striking the semicolon
at the end of clause (ii) and inserting '', or'', and by adding
at the end the following: ''(iii) to provide restitution and
other appropriate relief to employees who have been excluded
from participation or have been misclassified or reclassified
in violation of section 202 or 402'';
(3) by striking ''or'' at the end of subsection (a)(8), by
striking the period at the end of subsection (a)(9) and
inserting ''; or'', and by adding at the end the following new
paragraph:
''(10) by a participant or beneficiary to obtain a judicial
declaration concerning whether a waiver of rights arising under
this title or a plan, including a waiver of participation in a
plan, was knowing and voluntary under the totality of the
circumstances.'';
(4) in subsection (g)(1), by inserting '', reasonable
expert fees,'' before ''and costs'' and by inserting before the
period at the end the following: '', except that the court
shall award such fees and costs to a prevailing party in the
case of an action brought to enforce section 510, unless the
court determines that it would be unjust to do so under the
circumstances''; and
(5) by adding at the end of section 502 the following new
subsection:
''(n) In an action under this section, if the court finds that any
participant or beneficiary has been discharged, fined, suspended,
expelled, disciplined, or discriminated against in violation of section
510, relief under this section may include enjoining such unlawful
conduct and ordering such affirmative action as may be appropriate.
Such action may include, but is not limited to, reinstatement or hiring
and an award of back pay and lost benefits.''.

SEC. 6. WAIVERS.

Section 502 of the Employee Retirement Income Security Act of 1974
(29 U.S.C. 1132) (as amended by section 5) is amended further by adding
at the end the following new subsection:
''(o)(1) The rights under this title (including the right to
maintain a civil action) may not be waived, deferred, or lost pursuant
to any agreement not authorized under this title with specific
reference to this paragraph.
''(2)(A) Subject to subparagraph (B), paragraph (1) shall not apply
to an agreement providing for arbitration or participation in any other
non-judicial procedure to resolve a dispute if the agreement is entered
into knowingly and voluntarily by the parties involved after the
dispute has arisen or is pursuant to the terms of a collective
bargaining agreement.
''(B)(i) No waiver under subparagraph (A) of participation in an
employee benefit plan may be considered knowing and voluntary if
related, in whole or in part, to the misclassification or
reclassification of an individual in one or more categories ineligible
for participation in the plan.
''(ii) The party asserting the validity of a waiver under
subparagraph (A) shall have the burden of proving that the waiver was
knowing and voluntary.
''(iii) A waiver under subparagraph (A) shall not impose any
limitation, including any condition precedent or penalty, adversely
affecting the right of an individual to challenge the waiver by
bringing a civil action in a court of competent jurisdiction. Any
provision requiring an individual to tender back consideration received
and any provision allowing employers, plan sponsors, and fiduciaries
(including administrators, officers, trustees, and custodians) to
recover attorney's fees or damages because of the filing of a civil
action shall be treated as limitations referred to in the preceding
sentence. Nothing in this clause shall be construed as precluding
recovery of a reasonable attorney's fee or costs of action that may be
authorized under subsection (g)(1).
''(iv) No individual who brings a civil action shall be required to
tender back any consideration given in exchange for a waiver under
subparagraph (A) before bringing such civil action. The retention of
any consideration received in exchange for any waiver shall not
constitute ratification of a waiver under subparagraph (A) or foreclose
a challenge thereto.
''(v) No waiver otherwise permitted under subparagraph (A) may
affect the Secretary's rights and responsibilities to enforce this
title. No waiver may be used to justify interfering with the protected
right of any person to participate in an investigation or proceeding
conducted by the Secretary.''.

SEC. 7. GENERAL PROVISIONS.

(a) In General.--Except as otherwise provided in this Act, the
amendments made by this Act shall apply with respect to plan years
beginning on or after January 1, 2004.
(b) Special Rule For Collectively Bargained Plans.--In the case of
a plan maintained pursuant to one or more collective bargaining
agreements between employee representatives and one or more employers
ratified on or before the date of the enactment of this Act, subsection
(a) shall be applied to benefits pursuant to, and individuals covered
by, any such agreement by substituting for ''January 1, 2004'' the date
of the commencement of the first plan year beginning on or after the
earlier of--
(1) the later of--
(A) January 1, 2005; or
(B) the date on which the last of such collective
bargaining agreements terminates (determined without
regard to any extension thereof after the date of the
enactment of this Act); or
(2) January 1, 2006.
(c) Plan Amendments.--If any amendment made by this Act requires an
amendment to any plan, such plan amendment shall not be required to be
made before the first plan year beginning on or after January 1, 2005,
if--
(1) during the period after such amendment made by this Act
takes effect and before such first plan year, the plan is
operated in good faith compliance with the requirements of such
amendment made by this Act; and
(2) such plan amendment applies retroactively to the period
after such amendment made by this Act takes effect and before
such first plan year.
Employee Benefits Protection Act of 2003 - Amends the Employee Retirement Income Security Act of 1974 (ERISA) to prohibit employers from disqualifying employees from benefits under their pension and welfare plans by misclassifying or reclassifying employee status.