Sec. 201. General shared responsibility for workers’ rights
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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: This paragraph— 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; shall not be interpreted by any court or agency as a restriction on, or narrowing of, any such interpretations; and 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.
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). Notwithstanding subparagraph (B), 2 or more persons shall be employers, acting directly or indirectly, with respect to an employee if— each such person directly or indirectly benefits or seeks to directly or indirectly benefit from the performance of labor by an employee; and 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; 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; each such person is legally capable, without regard as to whether such capability is used, of directly or indirectly— exerting direction or control over any material term or condition of employment of the employee; ensuring compliance with the requirements of this Act with regard to the employee’s performance of such labor; or upholding the rights and protections of this Act with regard to the employee’s performance of such labor; or 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. . 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: This subparagraph— 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; shall not be interpreted by any court or agency as a restriction on, or narrowing of, any such interpretations; and 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. 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). Notwithstanding clause (ii), 2 or more persons shall be employers, acting directly or indirectly, with respect to an employee if— each such person directly or indirectly benefits or seeks to directly or indirectly benefit from the performance of labor by an employee; and 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; 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; each such person is legally capable, without regard as to whether such capability is used, of directly or indirectly— exerting direction or control over any material term or condition of employment of the employee; ensuring compliance with the requirements of this Act with regard to the employee’s performance of such labor; or upholding the rights and protections of this Act with regard to the employee’s performance of such labor; 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 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. . 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: This subparagraph— 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; shall not be interpreted by any court or agency as a restriction on, or narrowing of, any such interpretations; and 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. 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). Notwithstanding clause (ii), 2 or more persons shall be employers, acting directly or indirectly, with respect to an employee if— each such person directly or indirectly benefits or seeks to directly or indirectly benefit from the performance of labor by an employee; and 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; 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; each such person is legally capable, without regard as to whether such capability is used, of directly or indirectly— exerting direction or control over any material term or condition of employment of the employee; ensuring compliance with the requirements of this Act with regard to the employee’s performance of such labor; or upholding the rights and protections of this Act with regard to the employee’s performance of such labor; or 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. . 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: This subsection— 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; shall not be interpreted by any court or agency as a restriction on, or narrowing of, any such interpretations; and 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. 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. 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— one of the persons is an operator of a coal or other mine and the miner is performing labor for the operator; each such person directly or indirectly benefits or seeks to directly or indirectly benefit from the performance of labor by the miner; and 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; 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; each such person is legally capable, without regard as to whether such capability is used, of directly or indirectly— exerting direction or control over any material term or condition of employment of the miner; ensuring compliance with the requirements of this Act with regard to the miner's performance of such labor; or upholding the rights and protections of this Act with regard to the miner’s performance of such labor; or 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. . 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: 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. This paragraph— 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; shall not be interpreted by any court or agency as a restriction on, or narrowing of, any such interpretations; and 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. 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. 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— 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; each such person directly or indirectly benefits or seeks to directly or indirectly benefit from the performance of labor by the worker; and 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; 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; each such person is legally capable, without regard as to whether such capability is used, of directly or indirectly— exerting direction or control over any material term or condition of employment of the worker; ensuring compliance with the requirements of this Act with regard to the worker's performance of such labor; or upholding the rights and protections of this Act with regard to the worker’s performance of such labor; or 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. 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. . 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: This subsection— 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; shall not be interpreted by any court or agency as a restriction on, or narrowing of, any such interpretations; and 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. 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— 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; 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 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; 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; each such person is legally capable, without regard as to whether such capability is used, of directly or indirectly— exerting direction or control over any material term or condition of employment of the laborer or mechanic; ensuring compliance with the requirements of this subchapter with regard to the laborer or mechanic's performance of such labor; or upholding the rights and protections of this subchapter with regard to the laborer or mechanic's performance of such labor; or 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. . Chapter 67 of title 41, United States Code, is amended by inserting after section 6701 the following: This subsection— 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; shall not be interpreted by any court or agency as a restriction on, or narrowing of, any such interpretations; and 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. 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— 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; each such person directly or indirectly benefits or seeks to directly or indirectly benefit from the performance of labor by the service employee; and 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; 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; each such person is legally capable, without regard as to whether such capability is used, of directly or indirectly— exerting direction or control over any material term or condition of employment of the service employee; ensuring compliance with the requirements of this chapter with regard to the service employee's performance of such labor; or upholding the rights and protections of this chapter with regard to the service employee's performance of such labor; or 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. . Chapter 65 of title 41, United States Code, is amended by inserting after section 6501a the following: This subsection— 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; shall not be interpreted by any court or agency as a restriction on, or narrowing of, any such interpretations; and 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. 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— 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; each such person directly or indirectly benefits or seeks to directly or indirectly benefit from such performance of labor by the individual; and each such person exerts actual direction or control, directly or indirectly, over any material term or condition of employment of the individual; 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; each such person is legally capable, without regard as to whether such capability is used, of directly or indirectly— exerting direction or control over any material term or condition of employment of the individual; ensuring compliance with the requirements of this chapter with regard to the individual's performance of such labor; or upholding the rights and protections of this chapter with regard to the individual's performance of such labor; or 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. . 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: This subparagraph— 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; shall not be interpreted by any court or agency as a restriction on, or narrowing of, any such interpretations; and 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. 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). Notwithstanding clause (ii), 2 or more persons shall be employers, acting directly or indirectly, with respect to an employee if— each such person directly or indirectly benefits or seeks to directly or indirectly benefit from the performance of labor by an employee; and 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; 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; each such person is legally capable, without regard as to whether such capability is used, of directly or indirectly— exerting direction or control over any material term or condition of employment of the employee; ensuring compliance with the requirements of this Act with regard to the employee; or upholding the rights and protections of this Act with regard to the employee; or 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. . 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: Paragraph
(5)of section 3(d) of such Act. . The amendment made by paragraph
(1)shall apply to services rendered on or after January 1, 2022.
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Sec. 201
General shared responsibility for workers’ rights
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