Sec. 5. Employment relationships
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Section 3(e) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 203(e) ) is amended— by redesignating paragraphs (2), (3), (4), and
(5)as paragraphs (3), (4), (5), and (6), respectively; in paragraph (1), by striking paragraphs (2), (3), and
(4)and inserting paragraphs (3), (4), (5), and
(6); and by inserting after paragraph
(1)the following: An individual shall be determined to be an independent contractor rather than an employee of another person if— such other person does not exercise significant control over the details of the way the work is performed by the individual, without regard to any control the other person may exercise over the final result of the work performed; and while performing such work, the individual has the opportunities and risks inherent with entrepreneurship, such as the discretion to exercise managerial skill, business acumen, or professional judgment. The following factors may not be used in determining whether an individual is an employee of another person: Whether such other person requires the individual to comply with legal, statutory, or regulatory requirements. Whether such other person requires the individual to comply with health and safety standards that are more stringent than otherwise applicable health and safety standards. Whether such other person requires the individual to carry insurance of any kind. Whether such other person requires the individual to meet contractually agreed-upon performance standards, such as deadlines. . Section 2(3) of the National Labor Relations Act ( 29 U.S.C. 152(3) ) is amended— by striking
(3)The term and inserting the following: employee shall The term employee shall ; and by adding at the end the following: The standard applied in section 3(e)(2) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 203(e)(2) ) shall be used in determining whether an individual is an independent contractor or an employee of another person under this Act, except that, in applying such standard to this Act, any reference to the term employee in such section 3(e)(2) shall have the meaning given such term under this paragraph. . Section 2(2) of the National Labor Relations Act ( 29 U.S.C. 152(2) ) is amended— by striking The term and inserting employer
(A)The term ; and employer by adding at the end the following: An employer may be considered a joint employer of the employees of another employer only if each employer directly, actually, and immediately, and not in a limited and routine manner, exercises significant control over the essential terms and conditions of employment of the employees of the other employer, such as hiring such employees, discharging such employees, determining the rate of pay and benefits of such employees, supervising such employees on a day-to-day basis, assigning such employees a work schedule, position, or task, or disciplining such employees. . Section 3(d) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 203(d) ) is amended— by striking and inserting Employer includes
(1); and Employer includes by adding at the end the following: An employer may be considered a joint employer of the employees of another employer for purposes of this Act only if each employer meets the criteria set forth in section 2(2)(B) of the National Labor Relations Act ( 29 U.S.C. 152(2)(B) ) except that, for purposes of determining joint-employer status under this Act, the terms employee and employer referenced in such section shall have the meanings given such terms in this section. . Notwithstanding any other provision of law, under the Fair Labor Standards Act of 1938 ( 29 U.S.C. 201 et seq. ), the National Labor Relations Act ( 29 U.S.C. 151 et seq. ), or any other Federal law, none of the following may be construed, alone or in combination with any other factor, as establishing an employer and employee relationship between a franchisor (or any employee of the franchisor) and a franchisee (or any employee of the franchisee): The franchisor (or any employee of the franchisor) provides the franchisee (or any employee of the franchisee) with, or requires such franchisee (or any employee of the franchisee) to use, a handbook, or other training, on sexual harassment, human trafficking, workplace violence, discrimination, or opportunities for apprenticeships or scholarships. The franchisor (or any employee of the franchisor) requires the franchisee (or any employee of the franchisee) to adopt a policy on sexual harassment, human trafficking, workplace violence, discrimination, opportunities for apprenticeships or scholarships, child care, or paid leave, including a requirement for such franchisee (or any employee of the franchisee) to report to the franchisor (or any employee of the franchisor) any violations or suspected violations of such policy.
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