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Code · BILL · 116th Congress · S. 4738 (Introduced in Senate) — To provide a right to flexibility and to broaden and increase employee protections at work, to protect small business... · Sec. 102

Sec. 102. Right to employee protections at work

27,178 words·~124 min read·/bill/116/s/4738/is/section-102

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

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: 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— 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; the labor is performed outside the usual course of the business of the person; and 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.
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. 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. 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. 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— any labor for another person; any labor for a specified period of time; any labor in a specified geographical area; or any labor for another person that is similar to the labor such individual performed for the person that is a party to such agreement. . 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: 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). . The Fair Labor Standards Act of 1938 ( 29 U.S.C. 201 et seq.) is amended— by inserting after section 4 ( 29 U.S.C. 204 ) the following: 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 in section 15(a) ( 29 U.S.C. 215(a) )— in paragraph (5), by striking the period at the end and inserting a semicolon; and by adding at the end the following: to violate section 5; . 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: 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)— to incorporate or form, or assist in the incorporation or formation of, a corporation, partnership, limited liability corporation, or other entity; or to pay or collect a fee for use of a foreign or domestic corporation, partnership, limited liability corporation, or other entity; or . 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: Any person who violates paragraph
(6)or
(7)of section 15(a) shall be subject to a civil penalty of— subject to clauses
(ii)and (iii), $10,000; if the violation is repeated or willful, $30,000; or 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. 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. 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). . Section 15(a)(3) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 215(a)(3) ) is amended— by striking employee because such employee has filed and inserting “employee because— such employee has filed; ; by striking committee; and inserting committee; or ; and by adding at the end the following: such employee— 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 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 ; . Section 15 of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 215 ) is amended by adding at the end the following: 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). 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. . Section 3(d) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 203(d) ) is amended to read as follows: The term employer includes any person acting directly or indirectly in the interest of an employer in relation to an employee. 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. 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). 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: 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. 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— 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 a labor organization hiring hall. . 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: 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— 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 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. . The Fair Labor Standards Act of 1938 ( 29 U.S.C. 201 et seq.) is amended by inserting after section 8 the following: 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. 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. 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— 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 the maximum amount of such reasonable amount of time shall be 30 minutes. 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. 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— in determining the reasonable amount of time under paragraph (1)(A) for which an employee described in section 3(e)(9) should be compensated; in determining an employee's regular rate of pay for purposes of paragraph (1)(B); or for any other purpose related to this subsection. . Section 15(a)(2) is amended by inserting including violations due to failure to comply with section 9(a), after section 7, . Section 17 of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 217 ) is amended— by striking The district courts and inserting
(a)The district courts ; by inserting orders issued under subsection (b)(1) or (c)(1) or violations of before section 15, ; and by adding at the end the following: 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)— 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 the employer shall immediately comply with the order issued under subparagraph
(A)or shall otherwise be in violation of section 15(a)(6). An order issued under paragraph
(1)shall— 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 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). An employer against whom an order is issued under paragraph
(1)may request a review by the Secretary to contest the order. A request under subparagraph
(A)shall be made in writing to the Secretary not more than 5 days after the issuance of the order. A review under this paragraph shall— commence not later than 24 hours after a request is made under subparagraph (B); and conclude not later than 24 hours after such commencement. 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. Any person aggrieved by a determination of the Secretary under paragraph (3)(C)(ii) may— request a hearing to appeal such determination to an administrative law judge; and appeal an order of an administrative law judge under subparagraph
(A)to a Federal or State court of competent jurisdiction. 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. 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)— the order issued under paragraph
(1)shall cease to be in effect; 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 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. 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. 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— 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 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. An order issued under paragraph
(1)shall— 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 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); and until the Secretary issues a release order under subparagraph (B). 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— 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 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. 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. An employer against whom an order is issued under paragraph
(1)may request a review by the Secretary to contest the order. A request under subparagraph
(A)shall be made in writing to the Secretary not more than 5 days after the issuance of the order. A review under this paragraph shall— commence not later than 24 hours after a request is made under subparagraph (B); and conclude not later than 24 hours after such commencement. 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. Any person aggrieved by a determination of the Secretary under paragraph (3)(C)(ii) may— request a hearing to appeal such determination to an administrative law judge; and appeal an order of an administrative law judge under subparagraph
(A)to a Federal or State court of competent jurisdiction. 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. 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. 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. 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)— 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; 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 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— an amount equal to any demonstrable lost net profits resulting from the order, as demonstrated by clear and convincing evidence; and 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. 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. . 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: 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. 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— 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 if the court determines the employer so violated the order during that period— the court shall determine the amount of net profits derived by the employer from the individuals' labor during that period; and the court shall assess damages in the amount determined under subclause (I), which damages shall be awarded to such individuals by the court. . 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) . Section 16 of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 216 ), as amended by paragraph (7)(B), is further amended— 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. ; in subsection (e)— 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 in paragraph (5)— 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 in the second sentence, by striking Civil penalties and inserting Except as provided in subsection (f)(3)(B), civil penalties ; and by adding at the end the following: 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). Prior to filing the civil action described in paragraph (1), the employee filing such action shall file with the Secretary a notice of— the complaint of the employee; and 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. 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. 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. 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))— 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 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). 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— the employee bringing the action shall be entitled to— 100 percent of the amount of the penalty assessed for such employee; and 25 percent of the amount of the penalty assessed for similarly situated employees involved in the action; and 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. 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. 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. . Section 2(3) of the National Labor Relations Act ( 29 U.S.C. 152(3) ) is amended— by striking The term and inserting
(A)The term ; by striking employment, but shall not and inserting employment. Such term shall not ; and by adding at the end the following: 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— 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; the labor is performed outside the usual course of the business of the person; and 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. 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. 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. 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. 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— any labor for another person; any labor for a specified period of time; any labor in a specified geographical area; or any labor for another person that is similar to the labor such individual performed for the person that is a party to such agreement. . 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: 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. . Section 8(a) of the National Labor Relations Act ( 29 U.S.C. 158(a) ) is amended— in paragraph (5), by striking the period at the end and inserting a semicolon; and by adding at the end the following: 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; . 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: 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)— to incorporate or form, or assist in the incorporation or formation of, a corporation, partnership, limited liability corporation, or other entity; or to pay or collect a fee for use of a foreign or domestic corporation, partnership, limited liability corporation, or other entity; or . Section 12 of the National Labor Relations Act ( 29 U.S.C. 162 ) is amended to read as follows: 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. Any person who violates paragraph
(6)or
(7)of section 8(a) shall be subject to a civil penalty of— subject to subparagraphs
(B)and (C), $10,000; if the violation is repeated or willful, $30,000; or 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. 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. 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. . Section 8(a)(4) of the National Labor Relations Act ( 29 U.S.C. 158(a)(4) ) is amended— by striking employee because he has filed and inserting “employee because— such employee has filed; ; by striking Act; and inserting Act; or ; and by adding at the end the following: such employee— 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 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 ; . Section 8 of the National Labor Relations Act ( 29 U.S.C. 158 ) is amended by adding at the end the following: 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). . Section 2(2) of the National Labor Relations Act ( 29 U.S.C. 152(2) ) is amended to read as follows: 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. 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: 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. 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— 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 a labor organization hiring hall. . 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: 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— 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 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. . Section 10 of the National Labor Relations Act ( 29 U.S.C. 160 ) is amended by adding at the end the following: 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— 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 the employer shall immediately comply with the order issued under subparagraph
(A)or shall otherwise be in violation of section 8(a)(6). An order issued under paragraph
(1)shall— 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 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). 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. 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. A review under this paragraph shall— commence not later than 24 hours after a request is made under subparagraph (B); and conclude not later than 24 hours after such commencement. 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. Any person aggrieved by a determination of the General Counsel under paragraph (3)(C)(ii) may— request a hearing on the merits before an Administrative Law Judge; appeal the determination of an Administrative Law Judge under subparagraph
(A)to the Board; and 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. 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. 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)— the order issued under paragraph
(1)shall cease to be in effect; 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 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. 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. 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— 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 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. An order issued under paragraph
(1)shall— 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 remain in effect— during any review under paragraph
(3)with respect to such order or hearing and appeal of such order under paragraph (4); and until the regional director issues a release order under subparagraph (B). 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— 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 has agreed to a payment schedule for all applicable back pay, damages, and civil penalties owed by the employer under this Act. 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. 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. 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. A review under this paragraph shall— commence not later than 24 hours after a request is made under subparagraph (B); and conclude not later than 24 hours after such commencement. 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. Any person aggrieved by a determination of the General Counsel under paragraph (3)(C)(ii) may— request a hearing on the merits before an Administrative Law Judge; appeal a determination by an Administrative Law Judge under subparagraph
(A)to the Board; and 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. 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. 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. 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. 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)— 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; 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 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— the amount equal to any demonstrable lost net profits resulting from the order, as demonstrated by clear and convincing evidence; and 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. 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. . 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: 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. 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— 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 if the court determines the employer so violated the order during that period— the court shall determine the amount of net profits derived by the employer from the individuals' labor during that period; and the court shall assess damages in the amount determined under clause (i), which damages shall be awarded to such individuals by the court. . Section 3(6) of the Occupational Safety and Health Act of 1970 ( 29 U.S.C. 652(6) ) is amended— by striking The term and inserting
(A)The term ; and by adding at the end the following: 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— 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; the labor is performed outside the usual course of the business of the person; and 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. 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. 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. 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. 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— any labor for another person; any labor for a specified period of time; any labor in a specified geographical area; or any labor for another person that is similar to the labor such individual performed for the person that is a party to such agreement. . 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: 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. . Section 5(a) of the Occupational Safety and Health Act of 1970 ( 29 U.S.C. 654(a) ) is amended— in paragraph (2), by striking the period at the end and inserting a semicolon; and by adding at the end the following: 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 . 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: 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— incorporate or form, or assist in the incorporation or formation of, a corporation, partnership, limited liability corporation, or other entity; or pay or collect a fee for use of a foreign or domestic corporation, partnership, limited liability corporation, or other entity. . Section 17 of the Occupational Safety and Health Act of 1970 ( 29 U.S.C. 666 ) is amended— by redesignating subsections (j), (k), and
(l)as subsections (o), (p), and (q), respectively; and by inserting after subsection
(i)the following: Any person who violates paragraph
(3)or
(4)of section 5(a) shall be subject to a civil penalty of— subject to subparagraphs
(B)and (C), $10,000; if the violation is repeated or willful, $30,000; or 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. 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. 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. . Section 11(c)(1) of the Occupational Safety and Health Act of 1970 ( 29 U.S.C. 660(c)(1) ) is amended— by striking because such employee and inserting “because— such employee; ; by striking afforded by this Act. and inserting afforded by this Act; or ; and by adding at the end the following: such employee— 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 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 . . 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: 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). 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. . Section 3(5) of the Occupational Safety and Health Act of 1970 ( 29 U.S.C. 652(5) ) is amended to read as follows: The term employer means a person engaged in a business affecting commerce who has employees. 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. 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: 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. 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— 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 a labor organization hiring hall. . 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: 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— 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 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. . 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: 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)— 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 the employer shall immediately comply with the order issued under subparagraph
(A)or shall otherwise be in violation of section 5(a)(3). An order issued under paragraph
(1)shall— 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 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). An employer against whom an order is issued under paragraph
(1)may request a review by the Secretary to contest the order. A request under subparagraph
(A)shall be made in writing to the Secretary not more than 5 days after the issuance of the order. A review under this paragraph shall— commence not later than 24 hours after a request is made under subparagraph (B); and conclude not later than 24 hours after such commencement. 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. Any person aggrieved by a determination of the Secretary under paragraph (3)(C)(ii) may— request a hearing to appeal such determination to an administrative law judge; and 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. 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. 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)— the order issued under paragraph
(1)shall cease to be in effect; 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 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. 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. 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— 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 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. An order issued under paragraph
(1)shall— 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 remain in effect— during any review conducted under paragraph
(3)with respect to such order and any hearing and appeal of such order under paragraph (4); and until the Secretary issues a release order under subparagraph (B). 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— 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 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. 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. An employer against whom an order is issued under paragraph
(1)may request a review by the Secretary to contest the order. A request under subparagraph
(A)shall be made in writing to the Secretary not more than 5 days after the issuance of the order. A review under this paragraph shall— commence not later than 24 hours after a request is made under subparagraph (B); and conclude not later than 24 hours after such commencement. 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. Any person aggrieved by a determination of the Secretary under paragraph (3)(C)(ii) may— request a hearing to appeal such determination to an administrative law judge; and 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. 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. 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. 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. 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)— 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; 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 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— an amount equal to any demonstrable lost net profits resulting from the order, as demonstrated by clear and convincing evidence; and 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. 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 . . 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: 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. 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— 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 if the court determines the employer so violated the order during that period— the court shall determine the amount of net profits derived by the employer from the individuals' labor during that period; and the court shall assess damages in the amount determined under clause (i), which damages shall be awarded to such individuals by the court. . 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: 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— 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; the labor is performed outside the usual course of the business of the person; and 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. 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. 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. 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. 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— any labor for another person; any labor for a specified period of time; any labor in a specified geographical area; or any labor for another person that is similar to the labor such individual performed for the person that is a party to such agreement. . 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: 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. . 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: 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. . 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: 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— incorporate or form, or assist in the incorporation or formation of, a corporation, partnership, limited liability corporation, or other entity; or pay or collect a fee for use of a foreign or domestic corporation, partnership, limited liability corporation, or other entity. . Section 110 of the Federal Mine Safety and Health Act of 1977 ( 30 U.S.C. 820 ) is amended— by redesignating subsections
(i)through
(l)as subsections
(l)through (o), respectively; and by inserting after subsection
(h)the following: Any operator of a coal or other mine who violates section 117 shall be subject to a civil penalty of— subject to subparagraphs
(B)and (C), $10,000; if the violation is repeated or willful, $30,000; or 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. 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. 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. . Section 105(c)(1) of the Federal Mine Safety and Health Act of 1977 ( 30 U.S.C. 815(c)(1) ) is amended— by striking No person and inserting
(A)No person ; and by adding at the end the following: 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— 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 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 . . 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: 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). 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. . 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: 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)— 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 the operator shall immediately comply with the order issued under subparagraph
(A)or otherwise be in violation of section 117(a). An order issued under paragraph
(1)shall— 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 remain in effect during any review conducted under paragraph
(3)and during any hearing and appeal of such order under paragraph (4). An operator against whom an order is issued under paragraph
(1)may request a review by the Secretary to contest the order. A request under subparagraph
(A)shall be made in writing to the Secretary not more than 5 days after the issuance of the order. A review under this paragraph shall— commence not later than 24 hours after a request is made under subparagraph (B); and conclude not later than 24 hours after such commencement. 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. Any person aggrieved by a determination of the Secretary under paragraph (3)(C)(ii) may— request a hearing to appeal such determination to an administrative law judge; and 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. 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. 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)— the order issued under paragraph
(1)shall cease to be in effect; 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 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. 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. 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— 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 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. An order issued under paragraph
(1)shall— 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 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); and until the Secretary issues a release order under subparagraph (B). 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— has corrected the violation of section 117(a) with respect to the 2 or more individuals who were misclassified resulting in the order; and 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. 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. 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. A request under subparagraph
(A)shall be made in writing to the Secretary not more than 5 days after the issuance of the order. A review under this paragraph shall— commence not later than 24 hours after a request is made under subparagraph (B); and conclude not later than 24 hours after such commencement. 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. Any person aggrieved by a determination of the Secretary under paragraph (3)(C)(ii) may— appeal such determination to an administrative law judge; and 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. 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. 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. 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. 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)— 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; 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 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— an amount equal to any demonstrable lost net profits resulting from the order, as demonstrated by clear and convincing evidence; and 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. 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. . 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: 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. 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— 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 if the court determines the operator so violated the order during that period— the court shall determine the amount of the net profits derived by the operator from the individuals' labor during that period; and the court shall assess damages in the amount determined under clause (i), which damages shall be awarded to such individuals by the court. . The Migrant and Seasonal Agricultural Worker Protection Act ( 29 U.S.C. 1801 et seq.) is amended— by redesignating section 4 ( 29 U.S.C. 1803 ) as section 5; and by inserting after section 3 ( 29 U.S.C. 1802 ) the following: 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— 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; the service or activity is performed outside the usual course of the business of the person; and 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. 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. 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. 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. 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— any labor for another person; any labor for a specified period of time; any labor in a specified geographical area; or any labor for another person that is similar to the labor such individual performed for the person that is a party to such agreement. . 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: 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. . 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: 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. . 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: 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— incorporate or form, or assist in the incorporation or formation of, a corporation, partnership, limited liability corporation, or other entity; or pay or collect a fee for use of a foreign or domestic corporation, partnership, limited liability corporation, or other entity. . Section 503(a) of the Migrant and Seasonal Agricultural Worker Protection Act ( 29 U.S.C. 1853(a) ) is amended— in paragraph (1), by striking paragraph
(2)and inserting paragraphs (2), (3), (4), and
(5); and by adding at the end the following: Any person who violates section 405 shall be subject to a civil penalty of— subject to clauses
(ii)and (iii), $10,000; if the violation is repeated or willful, $30,000; or 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. 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. 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. . Part A of title V of the Migrant and Seasonal Agricultural Worker Protection Act ( 29 U.S.C. 1851 et seq.) is amended— by redesignating sections 505 and 506 ( 29 U.S.C. 1855 and 1856) as sections 506 and 507, respectively; and in section 506(a) ( 29 U.S.C. 1855(a) ), as so redesignated— by striking No person and inserting
(1)No person ; and by adding at the end the following: 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— 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 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 . . 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: 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). 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. . 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: 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)— 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 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). An order issued under paragraph
(1)shall— 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 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). 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. A request under subparagraph
(A)shall be made in writing to the Secretary not more than 5 days after the issuance of the order. A review under this paragraph shall— commence not later than 24 hours after a request is made under subparagraph (B); and conclude not later than 24 hours after such commencement. 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. Any person aggrieved by a determination of the Secretary under paragraph (3)(C)(ii) may— request a hearing to appeal such determination to an administrative law judge; and 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. 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. 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)— the order issued under paragraph
(1)shall cease to be in effect; 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 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. 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. 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— 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 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. An order issued under paragraph
(1)shall— 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 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); and until the Secretary issues a release order under subparagraph (B). 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— has corrected the violation of section 405(a) with respect to the 2 or more individuals who were misclassified resulting in the order; and 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. 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. 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. A request under subparagraph
(A)shall be made in writing to the Secretary not more than 5 days after the issuance of the order. A review under this paragraph shall— commence not later than 24 hours after a request is made under subparagraph (B); and conclude not later than 24 hours after such commencement. 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. Any person aggrieved by a determination of the Secretary under paragraph (3)(C)(ii) may— appeal such determination to an administrative law judge; and 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. 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. 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. 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. 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)— 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; 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 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— an amount equal to any demonstrable lost net profits resulting from the order, as demonstrated by clear and convincing evidence; and 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. 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. . 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: 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. 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— 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 if the court determines the employer, association, or contractor so violated the order during that period— the court shall determine the amount of net profits derived by the employer, association, or contractor from the individuals' labor during that period; and the court shall assess damages in the amount determined under subclause (I), which damages shall be awarded to such individuals by the court. . Subchapter IV of chapter 31 of title 40, United States Code, is amended by inserting after section 3141 the following: 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— 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; the labor is performed outside the usual course of the business of such contractor or subcontractor; and 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. 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. 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. 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. 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— any labor for another person; any labor for a specified period of time; any labor in a specified geographical area; or any labor for another person that is similar to the labor such individual performed for the person that is a party to such agreement. . Section 3141a of title 40, United States Code, as added by paragraph (1), is amended by adding at the end the following: 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. . Subchapter IV of chapter 31 of title 40, United States Code, is amended by inserting after section 3144, the following: 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. 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— incorporate or form, or assist in the incorporation or formation of, a corporation, partnership, limited liability corporation, or other entity; or pay or collect a fee for use of a foreign or domestic corporation, partnership, limited liability corporation, or other entity. . Section 3144a of title 40, United States Code, added by paragraph (3), is amended by adding at the end the following: 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— 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 such laborer or mechanic— 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 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 . 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). 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. . Section 3144a of title 40, United States Code, as amended by paragraph (4), is further amended by adding at the end the following: 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)— 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 the contractor or subcontractor shall immediately comply with the order issued under subparagraph
(A)or shall otherwise be in violation of subsection (a). An order issued under paragraph
(1)shall— 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 remain in effect during any review conducted under paragraph
(3)and during any hearing and appeal of such order under paragraph (4). A contractor or subcontractor against whom an order is issued under paragraph
(1)may request a review by the Secretary to contest the order. A request under subparagraph
(A)shall be made in writing to the Secretary not more than 5 days after the issuance of the order. A hearing under this paragraph shall— commence not later than 24 hours after a request is made under subparagraph (B); and conclude not later than 24 hours after such commencement. 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. Any person aggrieved by a determination of the Secretary under paragraph (3)(C)(ii) may— request a hearing to appeal such determination to an administrative law judge; and appeal an order of an administrative law judge under subparagraph
(A)to a court of competent jurisdiction. 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. 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)— the order issued under paragraph
(1)shall cease to be in effect; 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 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. 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. 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— 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 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. An order issued under paragraph
(1)shall— 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 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); and until the Secretary issues a release order under subparagraph (B). 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— 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 has agreed to a payment schedule for all applicable back pay, damages, and civil penalties owed by the contractor or subcontractor under this subchapter. 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. A contractor or subcontractor against whom an order is issued under paragraph
(1)may request a review by the Secretary to contest the order. A request under subparagraph
(A)shall be made in writing to the Secretary not more than 5 days after the issuance of the order. A review under this paragraph shall— commence not later than 24 hours after a request is made under subparagraph (B); and conclude not later than 24 hours after such commencement. 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. Any person aggrieved by a determination of the Secretary under paragraph (3)(C)(ii) may— request a hearing to appeal such determination to an administrative law judge; and appeal an order of an administrative law judge under subparagraph
(A)to a court of competent jurisdiction. 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. 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. 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. Subparagraph
(A)applies to a laborer or mechanic who— is an employee of the contractor or subcontractor against whom an order is issued under paragraph (1); is performing labor under the contract or subcontract, respectively, that is subject to the order; and loses compensation due to the work of such laborer or mechanic ceasing as a result of such order. 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)— 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; 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 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— an amount equal to any demonstrable lost net profits resulting from the order, as demonstrated by clear and convincing evidence; and 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. 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. . 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: 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— subject to subparagraphs
(B)and (C), $10,000; if the violation is repeated or willful, $30,000; or 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. 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. 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. 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. 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— 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 if the court determines the contractor or subcontractor so violated the order during that period— 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 the court shall assess damages in the amount determined under clause (i), which damages shall be awarded to such individuals by the court. . The table of sections for subchapter IV of chapter 31 of title 40, United States Code, is amended— by inserting after the item relating to section 3141 the following: Sec. 3141a. Employee test. ; and 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. . Chapter 65 of title 41, United States Code, is amended by inserting after section 6501 of such title the following: 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— 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; the labor is performed outside the usual course of the business of such contractor; and 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. 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. 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. 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. 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— any labor for another person; any labor for a specified period of time; any labor in a specified geographical area; or any labor for another person that is similar to the labor such individual performed for the person that is a party to such agreement. . Section 6501a of title 41, United States Code, as added by paragraph (1), is amended by adding at the end the following: 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. . Section 6502 of title 41, United States Code, is amended by adding at the end the following: 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. . Section 6502 of title 41, United States Code, as amended by subparagraph (A), is further amended by adding at the end the following: 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)— incorporate or form, or assist in the incorporation or formation of, a corporation, partnership, limited liability corporation, or other entity; or pay or collect a fee for use of a foreign or domestic corporation, partnership, limited liability corporation, or other entity. . Section 6502 of title 41, United States Code, as amended by paragraph (4), is further amended by adding at the end the following: 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— 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 such individual— 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 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 . 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). 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. . Chapter 65 of title 41, United States Code, is amended by inserting after section 6506 the following: 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)— 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 the contractor shall immediately comply with the order issued under subparagraph
(A)or shall otherwise be in violation of section 6502(5). An order issued under paragraph
(1)shall— 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 remain in effect during any review conducted under paragraph
(3)and during any hearing and appeal of such order under paragraph (4). A contractor against whom an order is issued under paragraph
(1)may request a review by the Secretary to contest the order. A request under subparagraph
(A)shall be made in writing to the Secretary not more than 5 days after the issuance of the order. A review under this paragraph shall— commence not later than 24 hours after a request is made under subparagraph (B); and conclude not later than 24 hours after such commencement. 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. Any person aggrieved by a determination of the Secretary under paragraph (3)(C)(ii) may— request a hearing to appeal such determination to an administrative law judge; and appeal an order of an administrative law judge under subparagraph
(A)to a court of jurisdiction as described in section 6507(d). 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. 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)— the order issued under paragraph
(1)shall cease to be in effect; 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 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. 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. 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— 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 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. An order issued under paragraph
(1)shall— 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 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); and until the Secretary issues a release order under subparagraph (B). 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— has corrected the violation of section 6502(5) with respect to the 2 or more individuals who were misclassified resulting in the order; and has agreed to a payment schedule for all applicable back pay, damages, and civil penalties owed by the contractor under this chapter. 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. A contractor against whom an order is issued under paragraph
(1)may request a review by the Secretary to contest the order. A request under subparagraph
(A)shall be made in writing to the Secretary not more than 5 days after the issuance of the order. A review under this paragraph shall— commence not later than 24 hours after a request is made under subparagraph (B); and conclude not later than 24 hours after such commencement. 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. Any person aggrieved by a determination of the Secretary under paragraph (3)(C)(ii) may— request a hearing to appeal such determination to an administrative law judge; and appeal an order of an administrative law judge under subparagraph
(A)to a court of jurisdiction as described in section 6507(d). 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. 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. 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. An employee described in this subparagraph is an individual who— is an employee of a contractor against whom an order is issued under paragraph (1); 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 loses compensation due to the work of such employee ceasing as a result of such order. 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)— 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; 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 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— an amount equal to any demonstrable lost net profits resulting from the order, as demonstrated by clear and convincing evidence; and 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. 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. . Chapter 65 of title 41, United States Code, as amended by paragraph (5), is further amended by inserting after section 6506a the following: A contractor that violates paragraph (5), (6), or
(7)of section 6502 of this title shall be subject to a civil penalty of— subject to subparagraphs
(B)and (C), $10,000; if the violation is repeated or willful, $30,000; or 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. 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. 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. 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. 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— 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 if the court determines the contractor so violated the order during that period— the court shall determine the amount of net profits derived by the contractor from the individuals’ labor during that period; and the court shall assess damages in the amount determined under clause (i), which damages shall be awarded to such individuals by the court. . The table of sections for chapter 65 of title 41, United States Code, is amended— by inserting after the item relating to section 6501 the following: Sec. 6501a. Employee test. ; and 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. . 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: 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. . 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: 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)— incorporate or form, or assist in the incorporation or formation of, a corporation, partnership, limited liability corporation, or other entity; or pay or collect a fee for use of a foreign or domestic corporation, partnership, limited liability corporation, or other entity. . 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: Any employer who violates subsection
(c)or
(d)of section 105 shall be subject to a civil penalty of— subject to clauses
(ii)and (iii), $10,000; if the violation is repeated or willful, $30,000; or 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. 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. 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. . Section 105(b) of the Family and Medical Leave Act of 1993 ( 29 U.S.C. 2615(b) ) is amended— by redesignating paragraphs
(1)through
(3)as subparagraphs
(A)through (C), respectively, and indenting appropriately; by striking It shall and inserting the following: It shall ; in subparagraph (B), as so redesignated, by striking ; or and inserting a semicolon; in subparagraph (C), as so redesignated, by striking the period at the end and inserting ; or ; and by adding at the end the following: 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 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 . 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). 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. . 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: The term employer shall include any person who— is described in subparagraph (A)(i); and is described in section 3(d)(4) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 203(d)(4) ). . 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: 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)— 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 the employer shall immediately comply with the order issued under subparagraph
(A)or shall otherwise be in violation of section 105(c). An order issued under paragraph
(1)shall— 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 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). An employer against whom an order is issued under paragraph
(1)may request a review by the Secretary to contest the order. A request under subparagraph
(A)shall be made in writing to the Secretary not more than 5 days after the issuance of the order. A review under this paragraph shall— commence not later than 24 hours after a request is made under subparagraph (B); and conclude not later than 24 hours after such commencement. 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. Any person aggrieved by a determination of the Secretary under paragraph (3)(C)(ii) may— request a hearing to appeal such determination to an administrative law judge; and appeal an order of an administrative law judge under subparagraph
(A)to any Federal or State court of competent jurisdiction. 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. 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)— the order issued under paragraph
(1)shall cease to be in effect; 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 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. 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. 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— 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 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. An order issued under paragraph
(1)shall— 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 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); and until the Secretary issues a release order under subparagraph (B). 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— has corrected the violation of section 105(c) with respect to the 2 or more individuals who were misclassified resulting in the order; and has agreed to a payment schedule for all applicable back pay, damages, and civil penalties owed by the employer under this title. 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. An employer against whom an order is issued under paragraph
(1)may request a review by the Secretary to contest the order. A request under subparagraph
(A)shall be made in writing to the Secretary not more than 5 days after the issuance of the order. A review under this paragraph shall— commence not later than 24 hours after a request is made under subparagraph (B); and conclude not later than 24 hours after such commencement. 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. Any person aggrieved by a determination of the Secretary under paragraph (3)(C)(ii) may— request a hearing to appeal such determination to an administrative law judge; and appeal an order of an administrative law judge under subparagraph
(A)to any Federal or State court of competent jurisdiction. 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. 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. 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. 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)— 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; 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 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— an amount equal to any demonstrable lost net profits resulting from the order, as demonstrated by clear and convincing evidence; and 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. 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. . 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: 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. 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— 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 if the court determines the employer so violated the order during that period— the court shall determine the amount of net profits derived by the employer from the individuals’ labor during that period; and the court shall assess damages in the amount determined under subclause (I), which damages shall be awarded to such individuals by the court. . Section 3306 of the Internal Revenue Code of 1986 is amended by adding at the end the following new subsection: In defining employer and employee for purposes of this chapter, such definitions shall comply with the following: Paragraph
(4)of section 3(d) of the Fair Labor Standards Act of 1938. Paragraphs (6), (7), (8), and
(9)of section 3(e) of such Act. . The amendments made by paragraph
(1)shall apply to services rendered on or after January 1, 2022.
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U.S. Code
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cites case law
Sec. 102
Right to employee protections at work
U.S.C.§ 203
U.S.C.§ 201
U.S.C.§ 204
U.S.C.§ 215
U.S.C.§ 216
U.S.C.§ 158
U.S.C.§ 217
U.S.C.§ 212
U.S.C.§ 152
Cites 33 · showing 9Cited by 0 across 0 sources
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