Sec. 101. Right to flexibility
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The Fair Labor Standards Act of 1938 ( 29 U.S.C. 201 et seq.) is amended— by inserting after section 7 ( 29 U.S.C. 207 ) the following: In this section: The term covered employee means, with respect to an employer, an employee who— 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 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.
The term schedule and scheduling flexibility , with respect to the work of a covered employee under subsection (b), includes— the timing of the work throughout an hour, day, week, month, or year; the total duration of the work in any given period; the location where the work is performed; and the ability to perform work for any entity other than the employer of the covered employee, including any direct competitor of the employer. 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 .
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. An employer of a covered employee— may not discharge the covered employee for any reason except upon a showing of just cause; and may not otherwise discriminate against the covered employee because of or with relation to the schedule or scheduling flexibility of the employee. For the purposes of subparagraph (A)(ii), the term discriminate , with respect to a covered employee, shall include— reducing the amount or number of hours of work of the covered employee; restricting or limiting the work of the covered employee for the employer; or removing the covered employee from the workplace, including by suspending or deactivating an account the covered employee uses to perform work for the employer. 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. An employee shall have the right to request to have the schedule that the employee desires, including— the number of shifts or other units of work per day or week; the number of hours of work per day; the number of days of work per week; the location where the employee performs the work; and any unpaid time off the employee desires to take. An employer shall not discharge or in any other manner discriminate against an employee for making a request described in paragraph (1). 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. 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. 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— 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 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. An aggrieved employer or employee may— appeal an order of the Secretary under subparagraph
(B)to an administrative law judge; and appeal an order of an administrative law judge under subclause
(I)to a Federal or State court of competent jurisdiction. 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. For purposes of this paragraph, the term compelling business necessity means only any of the following: A significant burden of additional costs to the employer that would be prohibitive of continuing to conduct business. A complete inability of the employer to reorganize work amongst existing employees. A complete inability of the employer to recruit additional employees. A significant detrimental effect on the ability of the employer to meet customer demand. A lack of work during the period the employee proposes to work. A planned structural change to the employer's business, which was planned before the request was made. 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. ; by striking section 10 ( 29 U.S.C. 210 ); and by redesignating section 9 ( 29 U.S.C. 209 ) as section 10. 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 . 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: 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— $1,000; or if the violation is repeated or willful, $5,000. . 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 ( and inserting 29 U.S.C. 209 and 211) sections 10 and 11 of the Fair Labor Standards Act of 1938, as amended ( . 29 U.S.C. 210 and 211) 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 ( and inserting 29 U.S.C. 209 ) section 10 of the Fair Labor Standards Act of 1938 ( . 29 U.S.C. 210 )
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Sec. 101
Right to flexibility
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