[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 4738 Introduced in Senate (IS)]
<DOC>
116th CONGRESS
2d Session
S. 4738
To provide a right to flexibility and to broaden and increase employee
protections at work, to protect small businesses through shared
responsibility for workers' rights, to provide public transparency on
workers' rights violations, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
September 24, 2020
Mrs. Murray (for herself and Mr. Brown) introduced the following bill;
which was read twice and referred to the Committee on Health,
Education, Labor, and Pensions
_______________________________________________________________________
A BILL
To provide a right to flexibility and to broaden and increase employee
protections at work, to protect small businesses through shared
responsibility for workers' rights, to provide public transparency on
workers' rights violations, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Worker Flexibility and Small
Business Protection Act of 2020''.
SEC. 2. TABLE OF CONTENTS.
The table of contents for this Act is as follows:
Sec. 1. Short title.
Sec. 2. Table of contents.
TITLE I--RIGHT TO FLEXIBILITY AND EMPLOYEE PROTECTIONS AT WORK
Sec. 101. Right to flexibility.
Sec. 102. Right to employee protections at work.
TITLE II--SMALL BUSINESS PROTECTION THROUGH SHARED RESPONSIBILITY FOR
WORKERS' RIGHTS
Sec. 201. General shared responsibility for workers' rights.
Sec. 202. Massive corporations.
Sec. 203. Franchisors.
Sec. 204. Temporary staffing companies.
Sec. 205. Licensors.
Sec. 206. Labor contractors.
Sec. 207. Supply chain responsibility plan.
Sec. 208. Conforming amendments.
TITLE III--PUBLIC TRANSPARENCY ON WORKERS' RIGHTS VIOLATIONS
Sec. 301. Consumer right to know about compliance with workers' rights.
TITLE IV--CREATING BROAD AND INCREASING WORKER PROTECTIONS
Sec. 401. General standards for applying and interpreting workers'
rights.
Sec. 402. Statutes of limitation.
TITLE V--GENERAL PROVISIONS
Sec. 501. Severability.
TITLE I--RIGHT TO FLEXIBILITY AND EMPLOYEE PROTECTIONS AT WORK
SEC. 101. RIGHT TO FLEXIBILITY.
(a) In General.--The Fair Labor Standards Act of 1938 (29 U.S.C.
201 et seq.) is amended--
(1) by inserting after section 7 (29 U.S.C. 207) the
following:
``SEC. 8. RIGHT TO FLEXIBILITY.
``(a) Definitions.--In this section:
``(1) Covered employee.--The term `covered employee' means,
with respect to an employer, an employee who--
``(A) prior to the date of enactment of the Worker
Flexibility and Small Business Protection Act of 2020,
was classified by the employer as an independent
contractor; and
``(B) in any workweek is engaged in commerce or in
the production of goods for commerce, or is employed by
an enterprise engaged in commerce or in the production
of goods for commerce.
``(2) Schedule and scheduling flexibility.--The term
`schedule and scheduling flexibility', with respect to the work
of a covered employee under subsection (b), includes--
``(A) the timing of the work throughout an hour,
day, week, month, or year;
``(B) the total duration of the work in any given
period;
``(C) the location where the work is performed; and
``(D) the ability to perform work for any entity
other than the employer of the covered employee,
including any direct competitor of the employer.
``(b) Right To Keep Flexibility.--
``(1) In general.--Any covered employee of an employer has
the right to maintain the same schedule and scheduling
flexibility that the covered employee possessed at any time
while performing labor for such employer as an independent
contractor in the 12-month period prior to the date of
enactment of the Worker Flexibility and Small Business
Protection Act of 2020.
``(2) Duration of right.--A covered employee shall continue
to possess the right to maintain the same schedule and
scheduling flexibility described in paragraph (1) for the
duration of the employment of the covered employee with the
employer.
``(3) Nonretaliation.--
``(A) In general.--An employer of a covered
employee--
``(i) may not discharge the covered
employee for any reason except upon a showing
of just cause; and
``(ii) may not otherwise discriminate
against the covered employee because of or with
relation to the schedule or scheduling
flexibility of the employee.
``(B) Discrimination.--For the purposes of
subparagraph (A)(ii), the term `discriminate', with
respect to a covered employee, shall include--
``(i) reducing the amount or number of
hours of work of the covered employee;
``(ii) restricting or limiting the work of
the covered employee for the employer; or
``(iii) removing the covered employee from
the workplace, including by suspending or
deactivating an account the covered employee
uses to perform work for the employer.
``(C) Motivating factor.--For the purposes of
subparagraph (A)(ii), unlawful discrimination is
established when a covered employee demonstrates that
the schedule or scheduling flexibility of the covered
employee was a motivating factor for any adverse
employment action taken by an employer, even if such
action was also motivated by other factors.
``(c) Right To Request Future Flexibility.--
``(1) Right to request.--An employee shall have the right
to request to have the schedule that the employee desires,
including--
``(A) the number of shifts or other units of work
per day or week;
``(B) the number of hours of work per day;
``(C) the number of days of work per week;
``(D) the location where the employee performs the
work; and
``(E) any unpaid time off the employee desires to
take.
``(2) Nonretaliation.--
``(A) In general.--An employer shall not discharge
or in any other manner discriminate against an employee
for making a request described in paragraph (1).
``(B) Motivating factor.--Unlawful discharge or
discrimination against an employee is established under
subparagraph (A) when the complaining party
demonstrates that the request described in paragraph
(1) was a motivating factor for such discharge or
discrimination, even if such discharge or
discrimination was also motivated by other factors.
``(3) Response.--
``(A) In general.--An employer shall respond to a
request described in paragraph (1) by either granting
the request in full or providing the employee with a
written justification for any portion of the request
that the employer denies based on a compelling business
necessity.
``(B) Review by secretary.--If the employer does
not grant a request described in paragraph (1) in full,
the employee may request review by the Secretary. The
Secretary may--
``(i) issue an order to overrule the
employer's denial of the employee's request, or
any portion of the employee's request, if the
Secretary finds that the employer does not have
a compelling business necessity for the denial;
or
``(ii) issue an order to confirm the
employer's denial of the employee's request, or
any portion of the employee's request, if the
Secretary finds that the employer has a
compelling business necessity for the denial.
``(C) Appeals.--
``(i) In general.--An aggrieved employer or
employee may--
``(I) appeal an order of the
Secretary under subparagraph (B) to an
administrative law judge; and
``(II) appeal an order of an
administrative law judge under
subclause (I) to a Federal or State
court of competent jurisdiction.
``(ii) Compliance with order during
appeal.--For the duration of an appeal
described in clause (i)(I), the employer and
employee shall comply with the order of the
Secretary until and unless the order is
overturned by an administrative law judge. For
the duration of an appeal described in clause
(i)(II), the employer and employee shall comply
with the order of the administrative law judge
until and unless the order is overturned by a
Federal or State court of competent
jurisdiction.
``(D) Compelling business necessity.--For purposes
of this paragraph, the term `compelling business
necessity' means only any of the following:
``(i) A significant burden of additional
costs to the employer that would be prohibitive
of continuing to conduct business.
``(ii) A complete inability of the employer
to reorganize work amongst existing employees.
``(iii) A complete inability of the
employer to recruit additional employees.
``(iv) A significant detrimental effect on
the ability of the employer to meet customer
demand.
``(v) A lack of work during the period the
employee proposes to work.
``(vi) A planned structural change to the
employer's business, which was planned before
the request was made.
``(vii) Any other grounds as determined by
the Secretary through regulation that the
Secretary demonstrates satisfy the high bar of
being compellingly necessary for an employer to
continue conducting business and being more
than merely a legitimate business reason.'';
(2) by striking section 10 (29 U.S.C. 210); and
(3) by redesignating section 9 (29 U.S.C. 209) as section
10.
(b) Enforcement.--
(1) Prohibited acts.--Section 15(a)(2) of the Fair Labor
Standards Act of 1938 (29 U.S.C. 215(a)(2)) is amended by
striking ``section 6 or 7'' and inserting ``section 6, 7, or
8''.
(2) Penalties.--Section 16(e) of the Fair Labor Standards
Act of 1938 (29 U.S.C. 216(e)) is amended by adding at the end
the following:
``(6) Penalties for Violating Right to Flexibility.--Any person who
violates section 8 shall be subject to a civil penalty, for each
employee aggrieved by the violation and for each day in which the
employer is in such violation, of--
``(A) $1,000; or
``(B) if the violation is repeated or willful, $5,000.''.
(c) Conforming Amendments to Other Laws.--
(1) Age discrimination in employment act of 1967.--Section
7(a) of the Age Discrimination in Employment Act of 1967 (29
U.S.C. 626(a)) is amended by striking ``sections 9 and 11 of
the Fair Labor Standards Act of 1938, as amended (29 U.S.C. 209
and 211)'' and inserting ``sections 10 and 11 of the Fair Labor
Standards Act of 1938, as amended (29 U.S.C. 210 and 211)''.
(2) Family and medical leave act of 1993.--Section 106(d)
of the Family and Medical Leave Act of 1993 (29 U.S.C. 2616(d))
is amended by striking ``section 9 of the Fair Labor Standards
Act of 1938 (29 U.S.C. 209)'' and inserting ``section 10 of the
Fair Labor Standards Act of 1938 (29 U.S.C. 210)''.
SEC. 102. RIGHT TO EMPLOYEE PROTECTIONS AT WORK.
(a) Fair Labor Standards Act of 1938.--
(1) Strengthening employee test.--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:
``(6)(A) 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--
``(i) 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;
``(ii) the labor is performed outside the usual course of
the business of the person; and
``(iii) 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.
``(B)(i) 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.
``(ii) 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.
``(7)(A) 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.
``(B) 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--
``(i) any labor for another person;
``(ii) any labor for a specified period of time;
``(iii) any labor in a specified geographical area; or
``(iv) any labor for another person that is similar to the
labor such individual performed for the person that is a party
to such agreement.''.
(2) Presumption of employee status.--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:
``(8) 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).''.
(3) Misclassification as a standalone violation.--
(A) In general.--The Fair Labor Standards Act of
1938 (29 U.S.C. 201 et seq.) is amended--
(i) by inserting after section 4 (29 U.S.C.
204) the following:
``SEC. 5. MISCLASSIFICATION.
``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
(ii) in section 15(a) (29 U.S.C. 215(a))--
(I) in paragraph (5), by striking
the period at the end and inserting a
semicolon; and
(II) by adding at the end the
following:
``(6) to violate section 5;''.
(B) Incorporation to further violations.--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:
``(7) 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)--
``(A) to incorporate or form, or assist in the
incorporation or formation of, a corporation,
partnership, limited liability corporation, or other
entity; or
``(B) to pay or collect a fee for use of a foreign
or domestic corporation, partnership, limited liability
corporation, or other entity; or''.
(C) Penalties.--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:
``(7) Penalties for Misclassification and Incorporation To Further
Violations.--
``(A) In general.--Any person who violates paragraph (6) or
(7) of section 15(a) shall be subject to a civil penalty of--
``(i) subject to clauses (ii) and (iii), $10,000;
``(ii) if the violation is repeated or willful,
$30,000; or
``(iii) 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.
``(B) Repeated, or willful, and widespread violations.--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.
``(C) Payment of penalties.--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).''.
(4) Protection from retaliation for being an employee.--
Section 15(a)(3) of the Fair Labor Standards Act of 1938 (29
U.S.C. 215(a)(3)) is amended--
(A) by striking ``employee because such employee
has filed'' and inserting ``employee because--
``(A) such employee has filed;'';
(B) by striking ``committee;'' and inserting
``committee; or''; and
(C) by adding at the end the following:
``(B) such employee--
``(i) 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
``(ii) 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;''.
(5) Rules regarding unlawful discharge or discrimination.--
Section 15 of the Fair Labor Standards Act of 1938 (29 U.S.C.
215) is amended by adding at the end the following:
``(c) Rules Regarding Unlawful Discharge or Discrimination.--
``(1) Presumption of retaliation.--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).
``(2) Motivating factor.--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.''.
(6) Statutory employers in heavily misclassified
industries.--
(A) Definition of employer.--Section 3(d) of the
Fair Labor Standards Act of 1938 (29 U.S.C. 203(d)) is
amended to read as follows:
``(d) Employer.--
``(1) In general.--The term `employer' includes any person
acting directly or indirectly in the interest of an employer in
relation to an employee.
``(2) Inclusions and exclusions.--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.
``(3) Application with reference to other definitions.--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).
``(4) Statutory employers in certain industries.--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:
``(A) 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.
``(B) 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--
``(i) 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
``(ii) a labor organization hiring hall.''.
(B) Definition of employee.--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:
``(9) 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--
``(A) 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
``(B) 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.''.
(C) Compensable time worked.--
(i) In general.--The Fair Labor Standards
Act of 1938 (29 U.S.C. 201 et seq.) is amended
by inserting after section 8 the following:
``SEC. 9. SPECIAL REQUIREMENTS FOR CERTAIN WORKERS.
``(a) Determining Compensable Hours Worked for Transportation and
Network Dispatching Workers.--
``(1) Determining hours worked.--
``(A) In general.--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.
``(B) Rate of compensation.--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.
``(C) Determination of amount of time.--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--
``(i) 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
``(ii) the maximum amount of such
reasonable amount of time shall be 30 minutes.
``(D) Collective bargaining.--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.
``(2) Information.--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--
``(A) in determining the reasonable amount of time
under paragraph (1)(A) for which an employee described
in section 3(e)(9) should be compensated;
``(B) in determining an employee's regular rate of
pay for purposes of paragraph (1)(B); or
``(C) for any other purpose related to this
subsection.''.
(ii) Penalties.--Section 15(a)(2) is
amended by inserting ``including violations due
to failure to comply with section 9(a),'' after
``section 7,''.
(7) Misclassification enforcement through reclassification
orders and stop work orders.--
(A) In general.--Section 17 of the Fair Labor
Standards Act of 1938 (29 U.S.C. 217) is amended--
(i) by striking ``The district courts'' and
inserting ``(a) The district courts'';
(ii) by inserting ``orders issued under
subsection (b)(1) or (c)(1) or violations of''
before ``section 15,''; and
(iii) by adding at the end the following:
``(b) Misclassification Enforcement Through Reclassification
Orders.--
``(1) In general.--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)--
``(A) 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
``(B) the employer shall immediately comply with
the order issued under subparagraph (A) or shall
otherwise be in violation of section 15(a)(6).
``(2) Orders.--An order issued under paragraph (1) shall--
``(A) 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
``(B) 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).
``(3) Review for reconsideration.--
``(A) In general.--An employer against whom an
order is issued under paragraph (1) may request a
review by the Secretary to contest the order.
``(B) Requests.--A request under subparagraph (A)
shall be made in writing to the Secretary not more than
5 days after the issuance of the order.
``(C) Requirements for review.--
``(i) In general.--A review under this
paragraph shall--
``(I) commence not later than 24
hours after a request is made under
subparagraph (B); and
``(II) conclude not later than 24
hours after such commencement.
``(ii) Determination.--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.
``(4) Hearings and appeals.--Any person aggrieved by a
determination of the Secretary under paragraph (3)(C)(ii) may--
``(A) request a hearing to appeal such
determination to an administrative law judge; and
``(B) appeal an order of an administrative law
judge under subparagraph (A) to a Federal or State
court of competent jurisdiction.
``(5) Injunction proceedings.--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.
``(6) Successfully disproving occurrence of
misclassification.--
``(A) In general.--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)--
``(i) the order issued under paragraph (1)
shall cease to be in effect;
``(ii) 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
``(iii) 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.
``(B) Source of funds.--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.
``(c) Misclassification Enforcement Through Stop Work Orders.--
``(1) In general.--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--
``(A) 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
``(B) 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.
``(2) Orders.--
``(A) Applicability.--An order issued under
paragraph (1) shall--
``(i) 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
``(ii) remain in effect--
``(I) 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
``(II) until the Secretary issues a
release order under subparagraph (B).
``(B) Release orders.--
``(i) In general.--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--
``(I) 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
``(II) 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.
``(ii) Reinstatement.--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.
``(3) Review for reconsideration.--
``(A) In general.--An employer against whom an
order is issued under paragraph (1) may request a
review by the Secretary to contest the order.
``(B) Requests.--A request under subparagraph (A)
shall be made in writing to the Secretary not more than
5 days after the issuance of the order.
``(C) Requirements for review.--
``(i) In general.--A review under this
paragraph shall--
``(I) commence not later than 24
hours after a request is made under
subparagraph (B); and
``(II) conclude not later than 24
hours after such commencement.
``(ii) Determination.--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.
``(4) Hearings and appeals.--Any person aggrieved by a
determination of the Secretary under paragraph (3)(C)(ii) may--
``(A) request a hearing to appeal such
determination to an administrative law judge; and
``(B) appeal an order of an administrative law
judge under subparagraph (A) to a Federal or State
court of competent jurisdiction.
``(5) Injunction proceedings.--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.
``(6) Compensation for lost work.--
``(A) In general.--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.
``(B) Limitation.--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.
``(7) Successfully disproving occurrence of
misclassification.--
``(A) In general.--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)--
``(i) 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;
``(ii) 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
``(iii) 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--
``(I) an amount equal to any
demonstrable lost net profits resulting
from the order, as demonstrated by
clear and convincing evidence; and
``(II) 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.
``(B) Source of funds.--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.''.
(B) Penalties.--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:
``(8) Penalties for Violating Reclassification Orders.--
``(A) Civil penalties.--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.
``(B) Additional damages.--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--
``(i) 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
``(ii) if the court determines the employer so
violated the order during that period--
``(I) the court shall determine the amount
of net profits derived by the employer from the
individuals' labor during that period; and
``(II) the court shall assess damages in
the amount determined under subclause (I),
which damages shall be awarded to such
individuals by the court.''.
(C) Conforming amendments.--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)''.
(8) Private attorneys general.--Section 16 of the Fair
Labor Standards Act of 1938 (29 U.S.C. 216), as amended by
paragraph (7)(B), is further amended--
(A) 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.'';
(B) in subsection (e)--
(i) 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
(ii) in paragraph (5)--
(I) 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
(II) in the second sentence, by
striking ``Civil penalties'' and
inserting ``Except as provided in
subsection (f)(3)(B), civil
penalties''; and
(C) by adding at the end the following:
``(f) Private Right of Action for Penalties.--
``(1) In general.--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).
``(2) Notice.--
``(A) In general.--Prior to filing the civil action
described in paragraph (1), the employee filing such
action shall file with the Secretary a notice of--
``(i) the complaint of the employee; and
``(ii) 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.
``(B) Notification by secretary to employee.--
``(i) In general.--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.
``(ii) Termination of employee right.--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.
``(3) Treatment of penalties recovered by employees.--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))--
``(A) 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
``(B) 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).
``(4) Multiple employees.--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--
``(A) the employee bringing the action shall be
entitled to--
``(i) 100 percent of the amount of the
penalty assessed for such employee; and
``(ii) 25 percent of the amount of the
penalty assessed for similarly situated
employees involved in the action; and
``(B) 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.
``(5) Arbitration.--
``(A) In general.--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.
``(B) Consent of secretary.--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.''.
(b) National Labor Relations Act.--
(1) Strengthening employee test.--Section 2(3) of the
National Labor Relations Act (29 U.S.C. 152(3)) is amended--
(A) by striking ``The term'' and inserting ``(A)
The term'';
(B) by striking ``employment, but shall not'' and
inserting ``employment. Such term shall not''; and
(C) by adding at the end the following:
``(B)(i) 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--
``(I) 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;
``(II) the labor is performed outside the usual course of
the business of the person; and
``(III) 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.
``(ii)(I) 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.
``(II) 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.
``(C)(i) 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.
``(ii) 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--
``(I) any labor for another person;
``(II) any labor for a specified period of time;
``(III) any labor in a specified geographical area; or
``(IV) any labor for another person that is similar to the
labor such individual performed for the person that is a party
to such agreement.''.
(2) Presumption of employee status.--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:
``(D) 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.''.
(3) Misclassification as a standalone violation.--
(A) In general.--Section 8(a) of the National Labor
Relations Act (29 U.S.C. 158(a)) is amended--
(i) in paragraph (5), by striking the
period at the end and inserting a semicolon;
and
(ii) by adding at the end the following:
``(6) 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;''.
(B) Incorporation to further violations.--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:
``(7) 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)--
``(A) to incorporate or form, or assist in the
incorporation or formation of, a corporation,
partnership, limited liability corporation, or other
entity; or
``(B) to pay or collect a fee for use of a foreign
or domestic corporation, partnership, limited liability
corporation, or other entity; or''.
(C) Penalties.--Section 12 of the National Labor
Relations Act (29 U.S.C. 162) is amended to read as
follows:
``SEC. 12. PENALTIES.
``(a) In General.--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.
``(b) Civil Penalties for Misclassification or Incorporation To
Further Violations.--
``(1) In general.--Any person who violates paragraph (6) or
(7) of section 8(a) shall be subject to a civil penalty of--
``(A) subject to subparagraphs (B) and (C),
$10,000;
``(B) if the violation is repeated or willful,
$30,000; or
``(C) 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.
``(2) Repeated, or willful, and widespread violations.--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.
``(3) Payment of penalties.--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.''.
(4) Protection from retaliation for being an employee.--
Section 8(a)(4) of the National Labor Relations Act (29 U.S.C.
158(a)(4)) is amended--
(A) by striking ``employee because he has filed''
and inserting ``employee because--
``(A) such employee has filed;'';
(B) by striking ``Act;'' and inserting ``Act; or'';
and
(C) by adding at the end the following:
``(B) such employee--
``(i) 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
``(ii) 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;''.
(5) Presumption of retaliation.--Section 8 of the National
Labor Relations Act (29 U.S.C. 158) is amended by adding at the
end the following:
``(h) Presumption of Retaliation.--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).''.
(6) Statutory employers in heavily misclassified
industries.--
(A) Definition of employer.--Section 2(2) of the
National Labor Relations Act (29 U.S.C. 152(2)) is
amended to read as follows:
``(2) Employer.--
``(A) In general.--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.
``(B) Statutory employers in certain industries.--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:
``(i) 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.
``(ii) 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--
``(I) 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
``(II) a labor organization hiring hall.''.
(B) Definition of employee.--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:
``(E) 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--
``(i) 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
``(ii) 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.''.
(7) Misclassification enforcement through reclassification
orders and stop work orders.--
(A) In general.--Section 10 of the National Labor
Relations Act (29 U.S.C. 160) is amended by adding at
the end the following:
``(n) Misclassification Enforcement Through Reclassification
Orders.--
``(1) In general.--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--
``(A) 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
``(B) the employer shall immediately comply with
the order issued under subparagraph (A) or shall
otherwise be in violation of section 8(a)(6).
``(2) Orders.--An order issued under paragraph (1) shall--
``(A) 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
``(B) 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).
``(3) Review for reconsideration.--
``(A) In general.--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.
``(B) Requests.--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.
``(C) Requirements for review.--
``(i) In general.--A review under this
paragraph shall--
``(I) commence not later than 24
hours after a request is made under
subparagraph (B); and
``(II) conclude not later than 24
hours after such commencement.
``(ii) Determination.--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.
``(4) Hearings and appeals.--Any person aggrieved by a
determination of the General Counsel under paragraph (3)(C)(ii)
may--
``(A) request a hearing on the merits before an
Administrative Law Judge;
``(B) appeal the determination of an Administrative
Law Judge under subparagraph (A) to the Board; and
``(C) 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.
``(5) Temporary relief or restraining order.--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.
``(6) Successfully disproving occurrence of
misclassification.--
``(A) In general.--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)--
``(i) the order issued under paragraph (1)
shall cease to be in effect;
``(ii) 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
``(iii) 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.
``(B) Source of funds.--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.
``(o) Misclassification Enforcement Through Stop Work Orders.--
``(1) In general.--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--
``(A) 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
``(B) 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.
``(2) Orders.--
``(A) Applicability.--An order issued under
paragraph (1) shall--
``(i) 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
``(ii) remain in effect--
``(I) during any review under
paragraph (3) with respect to such
order or hearing and appeal of such
order under paragraph (4); and
``(II) until the regional director
issues a release order under
subparagraph (B).
``(B) Release orders.--
``(i) In general.--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--
``(I) 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
``(II) has agreed to a payment
schedule for all applicable back pay,
damages, and civil penalties owed by
the employer under this Act.
``(ii) Reinstatement.--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.
``(3) Review for reconsideration.--
``(A) In general.--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.
``(B) Requests.--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.
``(C) Requirements for review.--
``(i) In general.--A review under this
paragraph shall--
``(I) commence not later than 24
hours after a request is made under
subparagraph (B); and
``(II) conclude not later than 24
hours after such commencement.
``(ii) Determination.--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.
``(4) Hearings and appeals.--Any person aggrieved by a
determination of the General Counsel under paragraph (3)(C)(ii)
may--
``(A) request a hearing on the merits before an
Administrative Law Judge;
``(B) appeal a determination by an Administrative
Law Judge under subparagraph (A) to the Board; and
``(C) 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.
``(5) Temporary relief or restraining orders.--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.
``(6) Compensation for lost work.--
``(A) In general.--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.
``(B) Limitation.--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.
``(7) Successfully disproving occurrence of
misclassification.--
``(A) In general.--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)--
``(i) 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;
``(ii) 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
``(iii) 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--
``(I) the amount equal to any
demonstrable lost net profits resulting
from the order, as demonstrated by
clear and convincing evidence; and
``(II) 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.
``(B) Source of funds.--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.''.
(B) Penalties.--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:
``(c) Penalties for Violations of Reclassification Orders.--
``(1) Civil penalties.--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.
``(2) Additional damages.--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--
``(A) 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
``(B) if the court determines the employer so
violated the order during that period--
``(i) the court shall determine the amount
of net profits derived by the employer from the
individuals' labor during that period; and
``(ii) the court shall assess damages in
the amount determined under clause (i), which
damages shall be awarded to such individuals by
the court.''.
(c) Occupational Safety and Health Act of 1970.--
(1) Strengthening employee test.--Section 3(6) of the
Occupational Safety and Health Act of 1970 (29 U.S.C. 652(6))
is amended--
(A) by striking ``The term'' and inserting ``(A)
The term''; and
(B) by adding at the end the following:
``(B)(i) 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--
``(I) 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;
``(II) the labor is performed outside the usual
course of the business of the person; and
``(III) 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.
``(ii) 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.
``(iii) 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.
``(C)(i) 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.
``(ii) 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--
``(I) any labor for another person;
``(II) any labor for a specified period of time;
``(III) any labor in a specified geographical area;
or
``(IV) any labor for another person that is similar
to the labor such individual performed for the person
that is a party to such agreement.''.
(2) Presumption of employee status.--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:
``(D) 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.''.
(3) Misclassification as a standalone violation.--
(A) In general.--Section 5(a) of the Occupational
Safety and Health Act of 1970 (29 U.S.C. 654(a)) is
amended--
(i) in paragraph (2), by striking the
period at the end and inserting a semicolon;
and
(ii) by adding at the end the following:
``(3) 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''.
(B) Incorporation to further violations.--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:
``(4) 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--
``(A) incorporate or form, or assist in the
incorporation or formation of, a corporation,
partnership, limited liability corporation, or other
entity; or
``(B) pay or collect a fee for use of a foreign or
domestic corporation, partnership, limited liability
corporation, or other entity.''.
(C) Penalties.--Section 17 of the Occupational
Safety and Health Act of 1970 (29 U.S.C. 666) is
amended--
(i) by redesignating subsections (j), (k),
and (l) as subsections (o), (p), and (q),
respectively; and
(ii) by inserting after subsection (i) the
following:
``(j) Civil Penalties for Misclassification or Incorporation To
Further Violations.--
``(1) In general.--Any person who violates paragraph (3) or
(4) of section 5(a) shall be subject to a civil penalty of--
``(A) subject to subparagraphs (B) and (C),
$10,000;
``(B) if the violation is repeated or willful,
$30,000; or
``(C) 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.
``(2) Repeated, or willful, and widespread violations.--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.
``(3) Payment of penalties.--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.''.
(4) Protection from retaliation for being an employee.--
Section 11(c)(1) of the Occupational Safety and Health Act of
1970 (29 U.S.C. 660(c)(1)) is amended--
(A) by striking ``because such employee'' and
inserting ``because--
``(A) such employee;'';
(B) by striking ``afforded by this Act.'' and
inserting ``afforded by this Act; or''; and
(C) by adding at the end the following:
``(B) such employee--
``(i) 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
``(ii) 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.''.
(5) Rules regarding unlawful discharge or discrimination.--
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:
``(4) Presumption of retaliation.--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).
``(5) Motivating factor.--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.''.
(6) Statutory employers in heavily misclassified
industries.--
(A) Definition of employer.--Section 3(5) of the
Occupational Safety and Health Act of 1970 (29 U.S.C.
652(5)) is amended to read as follows:
``(5) Employer.--
``(A) In general.--The term `employer' means a person
engaged in a business affecting commerce who has employees.
``(B) Exclusion.--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.
``(C) Statutory employers in certain industries.--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:
``(i) 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.
``(ii) 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--
``(I) 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
``(II) a labor organization hiring hall.''.
(B) Definition of employee.--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:
``(E) 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--
``(i) 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
``(ii) 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.''.
(7) Misclassification enforcement through reclassification
orders and stop work orders.--
(A) In general.--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:
``SEC. 13A. MISCLASSIFICATION ENFORCEMENT THROUGH RECLASSIFICATION
ORDERS AND STOP WORK ORDERS.
``(a) Reclassification Orders.--
``(1) In general.--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)--
``(A) 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
``(B) the employer shall immediately comply with
the order issued under subparagraph (A) or shall
otherwise be in violation of section 5(a)(3).
``(2) Orders.--An order issued under paragraph (1) shall--
``(A) 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
``(B) 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).
``(3) Review for reconsideration.--
``(A) In general.--An employer against whom an
order is issued under paragraph (1) may request a
review by the Secretary to contest the order.
``(B) Requests.--A request under subparagraph (A)
shall be made in writing to the Secretary not more than
5 days after the issuance of the order.
``(C) Requirements for review.--
``(i) In general.--A review under this
paragraph shall--
``(I) commence not later than 24
hours after a request is made under
subparagraph (B); and
``(II) conclude not later than 24
hours after such commencement.
``(ii) Determination.--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.
``(4) Hearings and appeals.--Any person aggrieved by a
determination of the Secretary under paragraph (3)(C)(ii) may--
``(A) request a hearing to appeal such
determination to an administrative law judge; and
``(B) 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.
``(5) Appropriate relief.--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.
``(6) Successfully disproving occurrence of
misclassification.--
``(A) In general.--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)--
``(i) the order issued under paragraph (1)
shall cease to be in effect;
``(ii) 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
``(iii) 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.
``(B) Source of funds.--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.
``(b) Stop Work Orders.--
``(1) In general.--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--
``(A) 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
``(B) 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.
``(2) Orders.--
``(A) Applicability.--An order issued under
paragraph (1) shall--
``(i) 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
``(ii) remain in effect--
``(I) during any review conducted
under paragraph (3) with respect to
such order and any hearing and appeal
of such order under paragraph (4); and
``(II) until the Secretary issues a
release order under subparagraph (B).
``(B) Release orders.--
``(i) In general.--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--
``(I) 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
``(II) 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.
``(ii) Reinstatement.--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.
``(3) Review for reconsideration.--
``(A) In general.--An employer against whom an
order is issued under paragraph (1) may request a
review by the Secretary to contest the order.
``(B) Requests.--A request under subparagraph (A)
shall be made in writing to the Secretary not more than
5 days after the issuance of the order.
``(C) Requirements for review.--
``(i) In general.--A review under this
paragraph shall--
``(I) commence not later than 24
hours after a request is made under
subparagraph (B); and
``(II) conclude not later than 24
hours after such commencement.
``(ii) Determination.--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.
``(4) Hearings and appeals.--Any person aggrieved by a
determination of the Secretary under paragraph (3)(C)(ii) may--
``(A) request a hearing to appeal such
determination to an administrative law judge; and
``(B) 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.
``(5) Appropriate relief.--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.
``(6) Compensation for lost work.--
``(A) In general.--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.
``(B) Limitation.--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.
``(7) Successfully disproving occurrence of
misclassification.--
``(A) In general.--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)--
``(i) 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;
``(ii) 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
``(iii) 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--
``(I) an amount equal to any
demonstrable lost net profits resulting
from the order, as demonstrated by
clear and convincing evidence; and
``(II) 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.
``(B) Source of funds.--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.''.
(B) Penalties.--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:
``(k) Penalties for Violations of Reclassification Orders.--
``(1) Civil penalties.--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.
``(2) Additional damages.--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--
``(A) 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
``(B) if the court determines the employer so
violated the order during that period--
``(i) the court shall determine the amount
of net profits derived by the employer from the
individuals' labor during that period; and
``(ii) the court shall assess damages in
the amount determined under clause (i), which
damages shall be awarded to such individuals by
the court.''.
(d) Federal Mine Safety and Health Act of 1977.--
(1) Strengthening employee test.--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:
``SEC. 4A. EMPLOYEE TEST.
``(a) In General.--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--
``(1) 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;
``(2) the labor is performed outside the usual course of
the business of the person; and
``(3) 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.
``(b) Clarifications.--
``(1) Relationship with common law.--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.
``(2) Impact of written or other agreements.--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.
``(c) Non-Compete Agreements.--
``(1) In general.--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.
``(2) Definition of non-compete agreement.--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--
``(A) any labor for another person;
``(B) any labor for a specified period of time;
``(C) any labor in a specified geographical area;
or
``(D) any labor for another person that is similar
to the labor such individual performed for the person
that is a party to such agreement.''.
(2) Presumption of employee status.--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:
``(d) Presumption of Employee Status.--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.''.
(3) Misclassification as a standalone violation.--
(A) In general.--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:
``SEC. 117. MISCLASSIFICATION; INCORPORATION TO FURTHER VIOLATIONS.
``(a) In General.--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.''.
(B) Incorporation to further violations.--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:
``(b) Incorporation To Further Violations.--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--
``(1) incorporate or form, or assist in the incorporation
or formation of, a corporation, partnership, limited liability
corporation, or other entity; or
``(2) pay or collect a fee for use of a foreign or domestic
corporation, partnership, limited liability corporation, or
other entity.''.
(C) Penalties.--Section 110 of the Federal Mine
Safety and Health Act of 1977 (30 U.S.C. 820) is
amended--
(i) by redesignating subsections (i)
through (l) as subsections (l) through (o),
respectively; and
(ii) by inserting after subsection (h) the
following:
``(i) Penalties for Misclassification and Incorporation To Further
Violations.--
``(1) In general.--Any operator of a coal or other mine who
violates section 117 shall be subject to a civil penalty of--
``(A) subject to subparagraphs (B) and (C),
$10,000;
``(B) if the violation is repeated or willful,
$30,000; or
``(C) 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.
``(2) Repeated, or willful, and widespread violations.--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.
``(3) Payment of penalties.--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.''.
(4) Protection from retaliation for being an employee.--
Section 105(c)(1) of the Federal Mine Safety and Health Act of
1977 (30 U.S.C. 815(c)(1)) is amended--
(A) by striking ``No person'' and inserting ``(A)
No person''; and
(B) by adding at the end the following:
``(B) 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--
``(i) 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
``(ii) 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.''.
(5) Rules regarding unlawful discharge or discrimination.--
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:
``(4) Presumption of retaliation.--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).
``(5) Motivating factor.--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.''.
(6) Misclassification enforcement through reclassification
orders and stop work orders.--
(A) In general.--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:
``SEC. 108A. MISCLASSIFICATION ENFORCEMENT THROUGH RECLASSIFICATION
ORDERS AND STOP WORK ORDERS.
``(a) Reclassification Orders.--
``(1) In general.--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)--
``(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
``(B) the operator shall immediately comply with
the order issued under subparagraph (A) or otherwise be
in violation of section 117(a).
``(2) Orders.--An order issued under paragraph (1) shall--
``(A) 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
``(B) remain in effect during any review conducted
under paragraph (3) and during any hearing and appeal
of such order under paragraph (4).
``(3) Review for reconsideration.--
``(A) In general.--An operator against whom an
order is issued under paragraph (1) may request a
review by the Secretary to contest the order.
``(B) Requests.--A request under subparagraph (A)
shall be made in writing to the Secretary not more than
5 days after the issuance of the order.
``(C) Requirements for review.--
``(i) In general.--A review under this
paragraph shall--
``(I) commence not later than 24
hours after a request is made under
subparagraph (B); and
``(II) conclude not later than 24
hours after such commencement.
``(ii) Determination.--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.
``(4) Hearings and appeals.--Any person aggrieved by a
determination of the Secretary under paragraph (3)(C)(ii) may--
``(A) request a hearing to appeal such
determination to an administrative law judge; and
``(B) 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.
``(5) Relief.--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.
``(6) Successfully disproving occurrence of
misclassification.--
``(A) In general.--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)--
``(i) the order issued under paragraph (1)
shall cease to be in effect;
``(ii) 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
``(iii) 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.
``(B) Source of funds.--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.
``(b) Stop Work Orders.--
``(1) In general.--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--
``(A) 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
``(B) 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.
``(2) Orders.--
``(A) Applicability.--An order issued under
paragraph (1) shall--
``(i) 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
``(ii) remain in effect--
``(I) 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
``(II) until the Secretary issues a
release order under subparagraph (B).
``(B) Release orders.--
``(i) In general.--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--
``(I) has corrected the violation
of section 117(a) with respect to the 2
or more individuals who were
misclassified resulting in the order;
and
``(II) 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.
``(ii) Reinstatement.--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.
``(3) Review for reconsideration.--
``(A) In general.--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.
``(B) Requests.--A request under subparagraph (A)
shall be made in writing to the Secretary not more than
5 days after the issuance of the order.
``(C) Requirements for review.--
``(i) In general.--A review under this
paragraph shall--
``(I) commence not later than 24
hours after a request is made under
subparagraph (B); and
``(II) conclude not later than 24
hours after such commencement.
``(ii) Determination.--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.
``(4) Hearing and appeals.--Any person aggrieved by a
determination of the Secretary under paragraph (3)(C)(ii) may--
``(A) appeal such determination to an
administrative law judge; and
``(B) 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.
``(5) Relief.--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.
``(6) Compensation for lost work.--
``(A) In general.--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.
``(B) Limitation.--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.
``(7) Successfully disproving occurrence of
misclassification.--
``(A) In general.--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)--
``(i) 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;
``(ii) 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
``(iii) 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--
``(I) an amount equal to any
demonstrable lost net profits resulting
from the order, as demonstrated by
clear and convincing evidence; and
``(II) 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.
``(B) Source of funds.--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.''.
(B) Penalties.--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:
``(j) Penalties for Violating Reclassification Orders.--
``(1) Civil penalties.--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.
``(2) Additional damages.--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--
``(A) 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
``(B) if the court determines the operator so
violated the order during that period--
``(i) the court shall determine the amount
of the net profits derived by the operator from
the individuals' labor during that period; and
``(ii) the court shall assess damages in
the amount determined under clause (i), which
damages shall be awarded to such individuals by
the court.''.
(e) Migrant and Seasonal Agricultural Worker Protection Act.--
(1) Strengthening employee test.--The Migrant and Seasonal
Agricultural Worker Protection Act (29 U.S.C. 1801 et seq.) is
amended--
(A) by redesignating section 4 (29 U.S.C. 1803) as
section 5; and
(B) by inserting after section 3 (29 U.S.C. 1802)
the following:
``SEC. 4. EMPLOYEE TEST.
``(a) In General.--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--
``(1) 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;
``(2) the service or activity is performed outside the
usual course of the business of the person; and
``(3) 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.
``(b) Clarification.--
``(1) Relationship with common law.--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.
``(2) Impact of written or other agreements.--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.
``(c) Non-Compete Agreements.--
``(1) In general.--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.
``(2) Definition of non-compete agreement.--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--
``(A) any labor for another person;
``(B) any labor for a specified period of time;
``(C) any labor in a specified geographical area;
or
``(D) any labor for another person that is similar
to the labor such individual performed for the person
that is a party to such agreement.''.
(2) Presumption of employee status.--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:
``(d) Presumption of Employee Status.--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.''.
(3) Misclassification as a standalone violation.--
(A) In general.--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:
``SEC. 405. MISCLASSIFICATION; INCORPORATION TO FURTHER VIOLATIONS.
``(a) In General.--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.''.
(B) Incorporation to further violations.--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:
``(b) Incorporation To Further Violations.--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--
``(1) incorporate or form, or assist in the incorporation
or formation of, a corporation, partnership, limited liability
corporation, or other entity; or
``(2) pay or collect a fee for use of a foreign or domestic
corporation, partnership, limited liability corporation, or
other entity.''.
(C) Penalties.--Section 503(a) of the Migrant and
Seasonal Agricultural Worker Protection Act (29 U.S.C.
1853(a)) is amended--
(i) in paragraph (1), by striking
``paragraph (2)'' and inserting ``paragraphs
(2), (3), (4), and (5)''; and
(ii) by adding at the end the following:
``(3) Penalties for misclassification and incorporation to
further violations.--
``(A) In general.--Any person who violates section
405 shall be subject to a civil penalty of--
``(i) subject to clauses (ii) and (iii),
$10,000;
``(ii) if the violation is repeated or
willful, $30,000; or
``(iii) 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.
``(B) Repeated, or willful, and widespread
violations.--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.
``(C) Payment of penalties.--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.''.
(4) Protection from retaliation for being an employee.--
Part A of title V of the Migrant and Seasonal Agricultural
Worker Protection Act (29 U.S.C. 1851 et seq.) is amended--
(A) by redesignating sections 505 and 506 (29
U.S.C. 1855 and 1856) as sections 506 and 507,
respectively; and
(B) in section 506(a) (29 U.S.C. 1855(a)), as so
redesignated--
(i) by striking ``No person'' and inserting
``(1) No person''; and
(ii) by adding at the end the following:
``(2) 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--
``(A) 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
``(B) 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.''.
(5) Rules regarding unlawful discharge or discrimination.--
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:
``(c) Rules Regarding Unlawful Discharge or Discrimination.--
``(1) Presumption of retaliation.--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).
``(2) Motivating factor.--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.''.
(6) Misclassification enforcement through reclassification
orders and stop work orders.--
(A) In general.--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:
``SEC. 508. MISCLASSIFICATION ENFORCEMENT THROUGH RECLASSIFICATION
ORDERS AND STOP WORK ORDERS.
``(a) Reclassification Orders.--
``(1) In general.--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)--
``(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
``(B) 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).
``(2) Orders.--An order issued under paragraph (1) shall--
``(A) 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
``(B) 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).
``(3) Review for reconsideration.--
``(A) In general.--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.
``(B) Requests.--A request under subparagraph (A)
shall be made in writing to the Secretary not more than
5 days after the issuance of the order.
``(C) Requirements for review.--
``(i) In general.--A review under this
paragraph shall--
``(I) commence not later than 24
hours after a request is made under
subparagraph (B); and
``(II) conclude not later than 24
hours after such commencement.
``(ii) Determination.--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.
``(4) Hearings and appeals.--Any person aggrieved by a
determination of the Secretary under paragraph (3)(C)(ii) may--
``(A) request a hearing to appeal such
determination to an administrative law judge; and
``(B) 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.
``(5) Temporary or permanent injunctive relief.--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.
``(6) Successfully disproving occurrence of
misclassification.--
``(A) In general.--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)--
``(i) the order issued under paragraph (1)
shall cease to be in effect;
``(ii) 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
``(iii) 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.
``(B) Source of funds.--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.
``(b) Stop Work Orders.--
``(1) In general.--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--
``(A) 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
``(B) 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.
``(2) Orders.--
``(A) Applicability.--An order issued under
paragraph (1) shall--
``(i) 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
``(ii) remain in effect--
``(I) 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
``(II) until the Secretary issues a
release order under subparagraph (B).
``(B) Release orders.--
``(i) In general.--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--
``(I) has corrected the violation
of section 405(a) with respect to the 2
or more individuals who were
misclassified resulting in the order;
and
``(II) 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.
``(ii) Reinstatement.--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.
``(3) Review for reconsideration.--
``(A) In general.--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.
``(B) Requests.--A request under subparagraph (A)
shall be made in writing to the Secretary not more than
5 days after the issuance of the order.
``(C) Requirements for review.--
``(i) In general.--A review under this
paragraph shall--
``(I) commence not later than 24
hours after a request is made under
subparagraph (B); and
``(II) conclude not later than 24
hours after such commencement.
``(ii) Determination.--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.
``(4) Appeals.--Any person aggrieved by a determination of
the Secretary under paragraph (3)(C)(ii) may--
``(A) appeal such determination to an
administrative law judge; and
``(B) 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.
``(5) Temporary or permanent injunctive relief.--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.
``(6) Compensation for lost work.--
``(A) In general.--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.
``(B) Limitation.--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.
``(7) Successfully disproving occurrence of
misclassification.--
``(A) In general.--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)--
``(i) 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;
``(ii) 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
``(iii) 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--
``(I) an amount equal to any
demonstrable lost net profits resulting
from the order, as demonstrated by
clear and convincing evidence; and
``(II) 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.
``(B) Source of funds.--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.''.
(B) Penalties.--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:
``(4) Penalties for violating reclassification orders.--
``(A) Civil penalties.--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.
``(B) Additional damages.--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--
``(i) 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
``(ii) if the court determines the
employer, association, or contractor so
violated the order during that period--
``(I) the court shall determine the
amount of net profits derived by the
employer, association, or contractor
from the individuals' labor during that
period; and
``(II) the court shall assess
damages in the amount determined under
subclause (I), which damages shall be
awarded to such individuals by the
court.''.
(f) Davis-Bacon Act.--
(1) Strengthening employee test.--Subchapter IV of chapter
31 of title 40, United States Code, is amended by inserting
after section 3141 the following:
``Sec. 3141a. Employee test
``(a) In General.--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--
``(1) 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;
``(2) the labor is performed outside the usual course of
the business of such contractor or subcontractor; and
``(3) 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.
``(b) Clarifications.--
``(1) Relationship with common law.--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.
``(2) Impact of written or other agreements.--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.
``(c) Non-Compete Agreements.--
``(1) In general.--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.
``(2) Definition of non-compete agreement.--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--
``(A) any labor for another person;
``(B) any labor for a specified period of time;
``(C) any labor in a specified geographical area;
or
``(D) any labor for another person that is similar
to the labor such individual performed for the person
that is a party to such agreement.''.
(2) Presumption of employee status.--Section 3141a of title
40, United States Code, as added by paragraph (1), is amended
by adding at the end the following:
``(d) Presumption of Employee Status.--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.''.
(3) Misclassification as a standalone violation;
incorporation to further violations.--Subchapter IV of chapter
31 of title 40, United States Code, is amended by inserting
after section 3144, the following:
``Sec. 3144a. Prohibitions against misclassification, incorporation to
further violations, and retaliation; reclassification
orders and stop work orders
``(a) Misclassification.--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.
``(b) Incorporation To Further Violations.--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--
``(1) incorporate or form, or assist in the incorporation
or formation of, a corporation, partnership, limited liability
corporation, or other entity; or
``(2) pay or collect a fee for use of a foreign or domestic
corporation, partnership, limited liability corporation, or
other entity.''.
(4) Protection from retaliation for being an employee;
presumption of retaliation.--Section 3144a of title 40, United
States Code, added by paragraph (3), is amended by adding at
the end the following:
``(c) Retaliation.--
``(1) In general.--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--
``(A) 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
``(B) such laborer or mechanic--
``(i) 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
``(ii) 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.
``(2) Rules regarding unlawful discharge or
discrimination.--
``(A) Presumption of retaliation.--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).
``(B) Motivating factor.--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.''.
(5) Misclassification enforcement through reclassification
orders and stop work orders.--Section 3144a of title 40, United
States Code, as amended by paragraph (4), is further amended by
adding at the end the following:
``(d) Misclassification Enforcement Through Reclassification
Orders.--
``(1) In general.--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)--
``(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
``(B) the contractor or subcontractor shall
immediately comply with the order issued under
subparagraph (A) or shall otherwise be in violation of
subsection (a).
``(2) Orders.--An order issued under paragraph (1) shall--
``(A) 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
``(B) remain in effect during any review conducted
under paragraph (3) and during any hearing and appeal
of such order under paragraph (4).
``(3) Review for reconsideration.--
``(A) In general.--A contractor or subcontractor
against whom an order is issued under paragraph (1) may
request a review by the Secretary to contest the order.
``(B) Requests.--A request under subparagraph (A)
shall be made in writing to the Secretary not more than
5 days after the issuance of the order.
``(C) Requirements for review.--
``(i) In general.--A hearing under this
paragraph shall--
``(I) commence not later than 24
hours after a request is made under
subparagraph (B); and
``(II) conclude not later than 24
hours after such commencement.
``(ii) Determination.--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.
``(4) Hearings and appeals.--Any person aggrieved by a
determination of the Secretary under paragraph (3)(C)(ii) may--
``(A) request a hearing to appeal such
determination to an administrative law judge; and
``(B) appeal an order of an administrative law
judge under subparagraph (A) to a court of competent
jurisdiction.
``(5) Temporary or permanent injunctive relief.--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.
``(6) Successfully disproving occurrence of
misclassification.--
``(A) In general.--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)--
``(i) the order issued under paragraph (1)
shall cease to be in effect;
``(ii) 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
``(iii) 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.
``(B) Source of funds.--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.
``(e) Misclassification Enforcement Through Stop Work Orders.--
``(1) In general.--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--
``(A) 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
``(B) 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.
``(2) Orders.--
``(A) Applicability.--An order issued under
paragraph (1) shall--
``(i) 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
``(ii) remain in effect--
``(I) 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
``(II) until the Secretary issues a
release order under subparagraph (B).
``(B) Release orders.--
``(i) In general.--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--
``(I) 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
``(II) has agreed to a payment
schedule for all applicable back pay,
damages, and civil penalties owed by
the contractor or subcontractor under
this subchapter.
``(ii) Reinstatement.--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.
``(3) Review for reconsideration.--
``(A) In general.--A contractor or subcontractor
against whom an order is issued under paragraph (1) may
request a review by the Secretary to contest the order.
``(B) Requests.--A request under subparagraph (A)
shall be made in writing to the Secretary not more than
5 days after the issuance of the order.
``(C) Requirements for review.--
``(i) In general.--A review under this
paragraph shall--
``(I) commence not later than 24
hours after a request is made under
subparagraph (B); and
``(II) conclude not later than 24
hours after such commencement.
``(D) Determination.--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.
``(4) Hearing and appeals.--Any person aggrieved by a
determination of the Secretary under paragraph (3)(C)(ii) may--
``(A) request a hearing to appeal such
determination to an administrative law judge; and
``(B) appeal an order of an administrative law
judge under subparagraph (A) to a court of competent
jurisdiction.
``(5) Temporary or permanent injunctive relief.--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.
``(6) Compensation for lost work.--
``(A) In general.--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.
``(B) Limitation.--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.
``(C) Applicability.--Subparagraph (A) applies to a
laborer or mechanic who--
``(i) is an employee of the contractor or
subcontractor against whom an order is issued
under paragraph (1);
``(ii) is performing labor under the
contract or subcontract, respectively, that is
subject to the order; and
``(iii) loses compensation due to the work
of such laborer or mechanic ceasing as a result
of such order.
``(7) Successfully disproving occurrence of
misclassification.--
``(A) In general.--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)--
``(i) 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;
``(ii) 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
``(iii) 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--
``(I) an amount equal to any
demonstrable lost net profits resulting
from the order, as demonstrated by
clear and convincing evidence; and
``(II) 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.
``(B) Source of funds.--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.''.
(6) Penalties for violations of new requirements.--
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:
``Sec. 3144c. Penalties; expanded liability
``(a) Misclassification; Incorporation To Further Violations;
Retaliation.--
``(1) In general.--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--
``(A) subject to subparagraphs (B) and (C),
$10,000;
``(B) if the violation is repeated or willful,
$30,000; or
``(C) 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.
``(2) Repeated, or willful, and widespread violations.--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.
``(3) Payment of damages.--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.
``(b) Misclassification Enforcement Through Reclassification
Orders.--
``(1) Civil penalties.--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.
``(2) Additional damages.--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--
``(A) 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
``(B) if the court determines the contractor or
subcontractor so violated the order during that
period--
``(i) 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
``(ii) the court shall assess damages in
the amount determined under clause (i), which
damages shall be awarded to such individuals by
the court.''.
(7) Conforming amendments.--The table of sections for
subchapter IV of chapter 31 of title 40, United States Code, is
amended--
(A) by inserting after the item relating to section
3141 the following:
``Sec. 3141a. Employee test.'';
and
(B) 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.''.
(g) Walsh-Healey Public Contracts Act.--
(1) Strengthening employee test.--Chapter 65 of title 41,
United States Code, is amended by inserting after section 6501
of such title the following:
``Sec. 6501a. Employee test
``(a) In General.--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--
``(1) 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;
``(2) the labor is performed outside the usual course of
the business of such contractor; and
``(3) 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.
``(b) Clarifications.--
``(1) Relationship with common law.--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.
``(2) Impact of written or other agreements.--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.
``(c) Non-Compete Agreements.--
``(1) In general.--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.
``(2) Definition of non-compete agreement.--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--
``(A) any labor for another person;
``(B) any labor for a specified period of time;
``(C) any labor in a specified geographical area;
or
``(D) any labor for another person that is similar
to the labor such individual performed for the person
that is a party to such agreement.''.
(2) Presumption of employee status.--Section 6501a of title
41, United States Code, as added by paragraph (1), is amended
by adding at the end the following:
``(d) Presumption of Employee Status.--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.''.
(3) Misclassification as a standalone violation.--
(A) In general.--Section 6502 of title 41, United
States Code, is amended by adding at the end the
following:
``(5) Misclassification.--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.''.
(B) Incorporation to further violations.--Section
6502 of title 41, United States Code, as amended by
subparagraph (A), is further amended by adding at the
end the following:
``(6) Incorporation to further violations.--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)--
``(A) incorporate or form, or assist in the
incorporation or formation of, a corporation,
partnership, limited liability corporation, or other
entity; or
``(B) pay or collect a fee for use of a foreign or
domestic corporation, partnership, limited liability
corporation, or other entity.''.
(4) Protection from retaliation for being an employee;
rules regarding unlawful discharge or discrimination.--Section
6502 of title 41, United States Code, as amended by paragraph
(4), is further amended by adding at the end the following:
``(7) Retaliation.--
``(A) In general.--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--
``(i) 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
``(ii) such individual--
``(I) 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
``(II) 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.
``(B) Rules regarding unlawful discharge or
discrimination.--
``(i) Presumption of retaliation.--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).
``(ii) Motivating factor.--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.''.
(5) Misclassification enforcement through reclassification
orders and stop work orders.--Chapter 65 of title 41, United
States Code, is amended by inserting after section 6506 the
following:
``Sec. 6506a. Misclassification enforcement through reclassification
orders and stop work orders
``(a) Reclassification Orders.--
``(1) In general.--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)--
``(A) 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
``(B) the contractor shall immediately comply with
the order issued under subparagraph (A) or shall
otherwise be in violation of section 6502(5).
``(2) Orders.--An order issued under paragraph (1) shall--
``(A) 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
``(B) remain in effect during any review conducted
under paragraph (3) and during any hearing and appeal
of such order under paragraph (4).
``(3) Review for reconsideration.--
``(A) In general.--A contractor against whom an
order is issued under paragraph (1) may request a
review by the Secretary to contest the order.
``(B) Requests.--A request under subparagraph (A)
shall be made in writing to the Secretary not more than
5 days after the issuance of the order.
``(C) Requirements for review.--
``(i) In general.--A review under this
paragraph shall--
``(I) commence not later than 24
hours after a request is made under
subparagraph (B); and
``(II) conclude not later than 24
hours after such commencement.
``(ii) Determination.--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.
``(4) Hearings and appeals.--Any person aggrieved by a
determination of the Secretary under paragraph (3)(C)(ii) may--
``(A) request a hearing to appeal such
determination to an administrative law judge; and
``(B) appeal an order of an administrative law
judge under subparagraph (A) to a court of jurisdiction
as described in section 6507(d).
``(5) Temporary or permanent injunctive relief.--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.
``(6) Successfully disproving occurrence of
misclassification.--
``(A) In general.--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)--
``(i) the order issued under paragraph (1)
shall cease to be in effect;
``(ii) 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
``(iii) 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.
``(B) Source of funds.--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.
``(b) Stop Work Orders.--
``(1) In general.--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--
``(A) 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
``(B) 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.
``(2) Orders.--
``(A) Applicability.--An order issued under
paragraph (1) shall--
``(i) 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
``(ii) remain in effect--
``(I) 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
``(II) until the Secretary issues a
release order under subparagraph (B).
``(B) Release orders.--
``(i) In general.--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--
``(I) has corrected the violation
of section 6502(5) with respect to the
2 or more individuals who were
misclassified resulting in the order;
and
``(II) has agreed to a payment
schedule for all applicable back pay,
damages, and civil penalties owed by
the contractor under this chapter.
``(ii) Reinstatement.--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.
``(3) Review for reconsideration.--
``(A) In general.--A contractor against whom an
order is issued under paragraph (1) may request a
review by the Secretary to contest the order.
``(B) Requests.--A request under subparagraph (A)
shall be made in writing to the Secretary not more than
5 days after the issuance of the order.
``(C) Requirements for review.--
``(i) In general.--A review under this
paragraph shall--
``(I) commence not later than 24
hours after a request is made under
subparagraph (B); and
``(II) conclude not later than 24
hours after such commencement.
``(ii) Determination.--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.
``(4) Hearings and appeals.--Any person aggrieved by a
determination of the Secretary under paragraph (3)(C)(ii) may--
``(A) request a hearing to appeal such
determination to an administrative law judge; and
``(B) appeal an order of an administrative law
judge under subparagraph (A) to a court of jurisdiction
as described in section 6507(d).
``(5) Temporary or permanent injunctive relief.--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.
``(6) Compensation for lost work.--
``(A) In general.--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.
``(B) Limitation.--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.
``(C) Applicable employees.--An employee described
in this subparagraph is an individual who--
``(i) is an employee of a contractor
against whom an order is issued under paragraph
(1);
``(ii) 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
``(iii) loses compensation due to the work
of such employee ceasing as a result of such
order.
``(7) Successfully disproving occurrence of
misclassification.--
``(A) In general.--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)--
``(i) 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;
``(ii) 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
``(iii) 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--
``(I) an amount equal to any
demonstrable lost net profits resulting
from the order, as demonstrated by
clear and convincing evidence; and
``(II) 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.
``(B) Source of funds.--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.''.
(6) Penalties for violations of new requirements.--Chapter
65 of title 41, United States Code, as amended by paragraph
(5), is further amended by inserting after section 6506a the
following:
``Sec. 6506b. Penalties; expanded liability
``(a) Misclassification and Incorporation To Further Violations.--
``(1) In general.--A contractor that violates paragraph
(5), (6), or (7) of section 6502 of this title shall be subject
to a civil penalty of--
``(A) subject to subparagraphs (B) and (C),
$10,000;
``(B) if the violation is repeated or willful,
$30,000; or
``(C) 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.
``(2) Repeated, or willful, and widespread violations.--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.
``(3) Payment of damages.--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.
``(b) Reclassification Orders.--
``(1) Civil penalties.--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.
``(2) Additional damages.--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--
``(A) 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
``(B) if the court determines the contractor so
violated the order during that period--
``(i) the court shall determine the amount
of net profits derived by the contractor from
the individuals' labor during that period; and
``(ii) the court shall assess damages in
the amount determined under clause (i), which
damages shall be awarded to such individuals by
the court.''.
(7) Conforming amendments.--The table of sections for
chapter 65 of title 41, United States Code, is amended--
(A) by inserting after the item relating to section
6501 the following:
``Sec. 6501a. Employee test.'';
and
(B) 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.''.
(h) Family and Medical Leave Act of 1993.--
(1) Misclassification as a standalone violation.--
(A) In general.--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:
``(c) Misclassification.--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.''.
(B) Incorporation to further violations.--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:
``(d) Incorporation To Further Violations.--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)--
``(1) incorporate or form, or assist in the incorporation
or formation of, a corporation, partnership, limited liability
corporation, or other entity; or
``(2) pay or collect a fee for use of a foreign or domestic
corporation, partnership, limited liability corporation, or
other entity.''.
(C) Penalties.--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:
``(4) Penalties for misclassification and incorporation to
further violations.--
``(A) In general.--Any employer who violates
subsection (c) or (d) of section 105 shall be subject
to a civil penalty of--
``(i) subject to clauses (ii) and (iii),
$10,000;
``(ii) if the violation is repeated or
willful, $30,000; or
``(iii) 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.
``(B) Repeated, or willful, and widespread
violations.--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.
``(C) Payment of penalties.--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.''.
(2) Protection from retaliation for being an employee;
presumption of retaliation.--Section 105(b) of the Family and
Medical Leave Act of 1993 (29 U.S.C. 2615(b)) is amended--
(A) by redesignating paragraphs (1) through (3) as
subparagraphs (A) through (C), respectively, and
indenting appropriately;
(B) by striking ``It shall'' and inserting the
following:
``(1) In general.--It shall'';
(C) in subparagraph (B), as so redesignated, by
striking ``; or'' and inserting a semicolon;
(D) in subparagraph (C), as so redesignated, by
striking the period at the end and inserting ``; or'';
and
(E) by adding at the end the following:
``(D)(i) 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
``(ii) 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.
``(2) Rules regarding unlawful discharge or
discrimination.--
``(A) Presumption of retaliation.--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).
``(B) Motivating factor.--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.''.
(3) Statutory employers in heavily misclassifying
industries.--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:
``(C) Statutory employers in heavily misclassifying
industries.--The term `employer' shall include any
person who--
``(i) is described in subparagraph (A)(i);
and
``(ii) is described in section 3(d)(4) of
the Fair Labor Standards Act of 1938 (29 U.S.C.
203(d)(4)).''.
(4) Misclassification enforcement through stop work
orders.--
(A) In general.--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:
``SEC. 107A. MISCLASSIFICATION ENFORCEMENT THROUGH RECLASSIFICATION
ORDERS AND STOP WORK ORDERS.
``(a) Reclassification Orders.--
``(1) In general.--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)--
``(A) 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
``(B) the employer shall immediately comply with
the order issued under subparagraph (A) or shall
otherwise be in violation of section 105(c).
``(2) Orders.--An order issued under paragraph (1) shall--
``(A) 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
``(B) 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).
``(3) Review for reconsideration.--
``(A) In general.--An employer against whom an
order is issued under paragraph (1) may request a
review by the Secretary to contest the order.
``(B) Requests.--A request under subparagraph (A)
shall be made in writing to the Secretary not more than
5 days after the issuance of the order.
``(C) Requirements for review.--
``(i) In general.--A review under this
paragraph shall--
``(I) commence not later than 24
hours after a request is made under
subparagraph (B); and
``(II) conclude not later than 24
hours after such commencement.
``(ii) Determination.--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.
``(4) Hearings and appeals.--Any person aggrieved by a
determination of the Secretary under paragraph (3)(C)(ii) may--
``(A) request a hearing to appeal such
determination to an administrative law judge; and
``(B) appeal an order of an administrative law
judge under subparagraph (A) to any Federal or State
court of competent jurisdiction.
``(5) Action for injunction.--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.
``(6) Successfully disproving occurrence of
misclassification.--
``(A) In general.--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)--
``(i) the order issued under paragraph (1)
shall cease to be in effect;
``(ii) 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
``(iii) 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.
``(B) Source of funds.--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.
``(b) Stop Work Orders.--
``(1) In general.--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--
``(A) 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
``(B) 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.
``(2) Orders.--
``(A) Applicability.--An order issued under
paragraph (1) shall--
``(i) 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
``(ii) remain in effect--
``(I) 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
``(II) until the Secretary issues a
release order under subparagraph (B).
``(B) Release orders.--
``(i) In general.--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--
``(I) has corrected the violation
of section 105(c) with respect to the 2
or more individuals who were
misclassified resulting in the order;
and
``(II) has agreed to a payment
schedule for all applicable back pay,
damages, and civil penalties owed by
the employer under this title.
``(ii) Reinstatement.--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.
``(3) Review for reconsideration.--
``(A) In general.--An employer against whom an
order is issued under paragraph (1) may request a
review by the Secretary to contest the order.
``(B) Requests.--A request under subparagraph (A)
shall be made in writing to the Secretary not more than
5 days after the issuance of the order.
``(C) Requirements for review.--
``(i) In general.--A review under this
paragraph shall--
``(I) commence not later than 24
hours after a request is made under
subparagraph (B); and
``(II) conclude not later than 24
hours after such commencement.
``(ii) Determination.--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.
``(4) Hearing and appeals.--Any person aggrieved by a
determination of the Secretary under paragraph (3)(C)(ii) may--
``(A) request a hearing to appeal such
determination to an administrative law judge; and
``(B) appeal an order of an administrative law
judge under subparagraph (A) to any Federal or State
court of competent jurisdiction.
``(5) Action for injunction.--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.
``(6) Compensation for lost work.--
``(A) In general.--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.
``(B) Limitation.--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.
``(7) Successfully disproving occurrence of
misclassification.--
``(A) In general.--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)--
``(i) 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;
``(ii) 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
``(iii) 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--
``(I) an amount equal to any
demonstrable lost net profits resulting
from the order, as demonstrated by
clear and convincing evidence; and
``(II) 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.
``(B) Source of funds.--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.''.
(B) Penalties.--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:
``(5) Penalties for violations of reclassification
orders.--
``(A) Civil penalties.--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.
``(B) Additional damages.--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--
``(i) 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
``(ii) if the court determines the employer
so violated the order during that period--
``(I) the court shall determine the
amount of net profits derived by the
employer from the individuals' labor
during that period; and
``(II) the court shall assess
damages in the amount determined under
subclause (I), which damages shall be
awarded to such individuals by the
court.''.
(i) Federal Unemployment Tax Act (FUTA).--
(1) In general.--Section 3306 of the Internal Revenue Code
of 1986 is amended by adding at the end the following new
subsection:
``(w) Special Rules for Purposes of Defining Employer and
Employee.--In defining employer and employee for purposes of this
chapter, such definitions shall comply with the following:
``(1) Paragraph (4) of section 3(d) of the Fair Labor
Standards Act of 1938.
``(2) Paragraphs (6), (7), (8), and (9) of section 3(e) of
such Act.''.
(2) Effective date.--The amendments made by paragraph (1)
shall apply to services rendered on or after January 1, 2022.
TITLE II--SMALL BUSINESS PROTECTION THROUGH SHARED RESPONSIBILITY FOR
WORKERS' RIGHTS
SEC. 201. GENERAL SHARED RESPONSIBILITY FOR WORKERS' RIGHTS.
(a) Fair Labor Standards Act of 1938.--Section 3(d) of the Fair
Labor Standards Act of 1938 (29 U.S.C. 203(d)), as amended by section
102(a)(6)(A), is further amended by adding at the end the following:
``(5) Multiple employers.--
``(A) Rule of interpretation.--This paragraph--
``(i) is to be read as an addition to, and
an augmentation and expansion of, all relevant
judicial and agency interpretations in
existence on the date of enactment of the
Worker Flexibility and Small Business
Protection Act of 2020 regarding which persons
qualify as employers in relation to a given
employee under this Act, including in a
multiple employer or joint employment
structure;
``(ii) shall not be interpreted by any
court or agency as a restriction on, or
narrowing of, any such interpretations; and
``(iii) is not a codification of the common
law and shall not be interpreted to reflect, or
to be limited or restricted by, common law
interpretations regarding whether a person is
an employer of a given employee or whether
multiple persons are employers of a given
employee.
``(B) In general.--Two or more persons shall be
employers with respect to an employee if each such
person individually, acting directly or indirectly, is
an employer of the employee, based on and in accordance
with the meaning given the term `employer' under
paragraphs (1), (2), and (3) of this subsection, the
definition of `employee' under subsection (e), and the
definition of `employ' under subsection (g).
``(C) Additional multiple employer
determinations.--Notwithstanding subparagraph (B), 2 or
more persons shall be employers, acting directly or
indirectly, with respect to an employee if--
``(i) each such person directly or
indirectly benefits or seeks to directly or
indirectly benefit from the performance of
labor by an employee; and
``(ii)(I) each such person exerts actual
direction or control, directly or indirectly,
over any material term or condition of
employment of the employee, including through
an intermediary;
``(II) each such person exerts functional
direction or control, directly or indirectly,
over any material term or condition of
employment of the employee, including through
an intermediary;
``(III) each such person is legally
capable, without regard as to whether such
capability is used, of directly or indirectly--
``(aa) exerting direction or
control over any material term or
condition of employment of the
employee;
``(bb) ensuring compliance with the
requirements of this Act with regard to
the employee's performance of such
labor; or
``(cc) upholding the rights and
protections of this Act with regard to
the employee's performance of such
labor; or
``(IV) based on an act or omission of the 2
or more persons, the employee reasonably
believed that such persons were the employee's
employers and the employee did not have actual
knowledge that any of the persons were not the
employee's employer under this Act.''.
(b) National Labor Relations Act.--Section 2(2) of the National
Labor Relations Act (29 U.S.C. 152(2)), as amended by section
102(b)(6)(A), is further amended by adding at the end the following:
``(C) Multiple employers.--
``(i) Rule of interpretation.--This
subparagraph--
``(I) is to be read as an addition
to, and an augmentation and expansion
of, all relevant judicial and agency
interpretations in existence on the
date of enactment of the Worker
Flexibility and Small Business
Protection Act of 2020 regarding which
persons qualify as employers in
relation to a given employee under this
Act, including in a multiple employer
or joint employment structure;
``(II) shall not be interpreted by
any court or agency as a restriction
on, or narrowing of, any such
interpretations; and
``(III) is not a codification of
the common law and shall not be
interpreted to reflect, or to be
limited or restricted by, common law
interpretations regarding whether a
person is an employer of a given
employee or whether multiple persons
are employers of a given employee.
``(ii) In general.--Two or more persons
shall be employers with respect to an employee
if each such person individually, acting
directly or indirectly, is an employer of the
employee, based on and in accordance with the
meanings given the term `employer' under
subparagraph (A) and the term `employee' under
paragraph (3).
``(iii) Additional multiple employer
determinations.--Notwithstanding clause (ii), 2
or more persons shall be employers, acting
directly or indirectly, with respect to an
employee if--
``(I) each such person directly or
indirectly benefits or seeks to
directly or indirectly benefit from the
performance of labor by an employee;
and
``(II)(aa) each such person exerts
actual direction or control, directly
or indirectly, over any material term
or condition of employment of the
employee, including through an
intermediary;
``(bb) each such person exerts
functional direction or control,
directly or indirectly, over any
material term or condition of
employment of the employee, including
through an intermediary;
``(cc) each such person is legally
capable, without regard as to whether
such capability is used, of directly or
indirectly--
``(AA) exerting direction
or control over any material
term or condition of employment
of the employee;
``(BB) ensuring compliance
with the requirements of this
Act with regard to the
employee's performance of such
labor; or
``(CC) upholding the rights
and protections of this Act
with regard to the employee's
performance of such labor;
``(dd) based on an act or omission
of the 2 or more persons, the employee
reasonably believed that such persons
were the employee's employers and the
employee did not have actual knowledge
that any of the persons were not the
employee's employer under this Act; or
``(ee) based on the totality of the
circumstances of the industrial
realities, including the way separate
persons have structured their
commercial relationship, 2 or more
persons wield sufficient influence over
any material term or condition of
employment of the employee such that
meaningful bargaining could not occur
in the absence of the 2 or more
persons.''.
(c) Occupational Safety and Health Act of 1970.--Section 3(5) of
the Occupational Safety and Health Act of 1970 (29 U.S.C. 652(5)), as
amended by section 102(c)(6)(A), is further amended by adding at the
end the following:
``(C) Multiple employers.--
``(i) Rule of interpretation.--This subparagraph--
``(I) is to be read as an addition to, and
an augmentation and expansion of, all relevant
judicial and agency interpretations in
existence on the date of enactment of the
Worker Flexibility and Small Business
Protection Act of 2020 regarding which persons
qualify as employers in relation to a given
employee under this Act, including in a
multiple employer or joint employment
structure;
``(II) shall not be interpreted by any
court or agency as a restriction on, or
narrowing of, any such interpretations; and
``(III) is not a codification of the common
law and shall not be interpreted to reflect, or
to be limited or restricted by, common law
interpretations regarding whether a person is
an employer of a given employee or whether
multiple persons are employers of a given
employee.
``(ii) In general.--Two or more persons shall be
employers with respect to an employee if each such
person individually, acting directly or indirectly, is
an employer of the employee, based on and in accordance
with the meaning given the term `employer' under
subparagraph (A) and the definition of `employee' under
paragraph (6).
``(iii) Additional multiple employer
determinations.--Notwithstanding clause (ii), 2 or more
persons shall be employers, acting directly or
indirectly, with respect to an employee if--
``(I) each such person directly or
indirectly benefits or seeks to directly or
indirectly benefit from the performance of
labor by an employee; and
``(II)(aa) each such person exerts actual
direction or control, directly or indirectly,
over any material term or condition of
employment of the employee, including through
an intermediary;
``(bb) each such person exerts
functional direction or control,
directly or indirectly, over any
material term or condition of
employment of the employee, including
through an intermediary;
``(cc) each such person is legally
capable, without regard as to whether
such capability is used, of directly or
indirectly--
``(AA) exerting direction
or control over any material
term or condition of employment
of the employee;
``(BB) ensuring compliance
with the requirements of this
Act with regard to the
employee's performance of such
labor; or
``(CC) upholding the rights
and protections of this Act
with regard to the employee's
performance of such labor; or
``(dd) based on an act or omission
of the 2 or more persons, the employee
reasonably believed that such persons
were the employee's employers and the
employee did not have actual knowledge
that any of the persons were not the
employee's employer under this Act.''.
(d) Federal Mine Safety and Health Act of 1977.--The Federal Mine
Safety and Health Act of 1977 (30 U.S.C. 801 et seq.), as amended by
paragraphs (1) and (2) of section 102(d), is further amended by
inserting after section 4A the following:
``SEC. 4B. APPLICABILITY TO MULTIPLE EMPLOYERS AND RELATED ENTITIES.
``(a) Multiple Employers.--
``(1) Rule of interpretation.--This subsection--
``(A) is to be read as an addition to, and an
augmentation and expansion of, all relevant judicial
and agency interpretations in existence on the date of
enactment of the Worker Flexibility and Small Business
Protection Act of 2020 regarding which persons qualify
as operators in relation to a given miner under this
Act, including in a multiple employer or joint
employment structure;
``(B) shall not be interpreted by any court or
agency as a restriction on, or narrowing of, any such
interpretations; and
``(C) is not a codification of the common law and
shall not be interpreted to reflect, or to be limited
or restricted by, common law interpretations regarding
whether a person is an employer of a given miner or
whether multiple persons are employers with respect to
a given miner.
``(2) In general.--Two or more persons shall be employers
with respect to a miner of a coal or other mine if, based on
the definitions given the terms `operator' and `miner' in
section 3, each such person individually satisfies the
definition of an operator under this Act in relation to a given
miner.
``(3) Additional multiple employer determinations.--
Notwithstanding paragraph (2), 2 or more persons shall be
employers, acting directly or indirectly, with respect to a
miner of a coal or other mine if--
``(A) one of the persons is an operator of a coal
or other mine and the miner is performing labor for the
operator;
``(B) each such person directly or indirectly
benefits or seeks to directly or indirectly benefit
from the performance of labor by the miner; and
``(C)(i) each such person exerts actual direction
or control, directly or indirectly, over any material
term or condition of employment of the miner, including
through an intermediary;
``(ii) each such person exerts functional direction
or control, directly or indirectly, over any material
term or condition of employment of the miner, including
through an intermediary;
``(iii) each such person is legally capable,
without regard as to whether such capability is used,
of directly or indirectly--
``(I) exerting direction or control over
any material term or condition of employment of
the miner;
``(II) ensuring compliance with the
requirements of this Act with regard to the
miner's performance of such labor; or
``(III) upholding the rights and
protections of this Act with regard to the
miner's performance of such labor; or
``(iv) based on an act or omission of the 2 or more
persons, the miner reasonably believed that such
persons were the miner's employers and the miner did
not have actual knowledge that any of the persons were
not the miner's employer under this Act.''.
(e) Migrant and Seasonal Agricultural Worker Protection Act.--
Section 5 of the Migrant and Seasonal Agricultural Worker Protection
Act (29 U.S.C. 1803), as redesignated by section 102(e)(1)(A), is
further amended by adding at the end the following:
``(c) Expanded Applicability.--
``(1) Responsibility of agricultural employers and
agricultural associations for workers of farm labor
contractors.--In any case where an agricultural employer or an
agricultural association has entered into an agreement with a
farm labor contractor to provide migrant agricultural workers
or seasonal agricultural workers to the employer or
association, both the agricultural employer or association and
the farm labor contractor shall be responsible for the rights
and protections of this Act with regard to the migrant
agricultural worker or seasonal agricultural worker, as the
case may be, in any case where the farm labor contractor is
responsible for the rights and protections of this Act.
``(2) Multiple employers.--
``(A) Rule of interpretation.--This paragraph--
``(i) is to be read as an addition to, and
an augmentation and expansion of, all relevant
judicial and agency interpretations in
existence on the date of enactment of the
Worker Flexibility and Small Business
Protection Act of 2020 regarding which persons
qualify as agricultural employers, agricultural
associations, or farm labor contractors in
relation to a given employee under this Act,
including in a multiple employer or joint
employment structure;
``(ii) shall not be interpreted by any
court or agency as a restriction on, or
narrowing of, any such interpretations; and
``(iii) is not a codification of the common
law and shall not be interpreted to reflect, or
to be limited or restricted by, common law
interpretations regarding whether a person is
an employer of a given migrant agricultural
worker or seasonal agricultural worker or
whether multiple persons are employers of a
given worker.
``(B) In general.--Two or more persons, acting
directly or indirectly, shall be responsible for the
rights and protections of this Act with respect to a
migrant agricultural worker or seasonal agricultural
worker, if based on the application of the definitions
of `agricultural association', `agricultural employer',
`agricultural employment', `employ', `farm labor
contractor', `migrant agricultural worker', and
`seasonal agricultural worker' under section 3, each
such person individually satisfies the definition of a
farm labor contractor, agricultural employer, or
agricultural association under this Act in relation to
a given migrant agricultural worker or seasonal
agricultural worker.
``(C) Additional multiple employer
determinations.--Notwithstanding subparagraph (B), 2 or
more persons, acting directly or indirectly, shall be
responsible for the rights and protections of this Act
with respect to a migrant agricultural worker or
seasonal agricultural worker if--
``(i) one of the persons is a farm labor
contractor, agricultural employer, or
agricultural association and the migrant
agricultural worker or seasonal agricultural
worker is performing labor for such person;
``(ii) each such person directly or
indirectly benefits or seeks to directly or
indirectly benefit from the performance of
labor by the worker; and
``(iii)(I) each such person exerts actual
direction or control, directly or indirectly,
over any material term or condition of
employment of the worker, including through an
intermediary;
``(II) each such person exerts functional
direction or control, directly or indirectly,
over any material term or condition of
employment of the worker, including through an
intermediary;
``(III) each such person is legally
capable, without regard as to whether such
capability is used, of directly or indirectly--
``(aa) exerting direction or
control over any material term or
condition of employment of the worker;
``(bb) ensuring compliance with the
requirements of this Act with regard to
the worker's performance of such labor;
or
``(cc) upholding the rights and
protections of this Act with regard to
the worker's performance of such labor;
or
``(IV) based on an act or omission of the 2
or more persons, the worker reasonably believed
that each such person was a farm labor
contractor, agricultural employer, or
agricultural association that employed the
worker and the worker did not have actual
knowledge that any of the persons were not the
worker's employer for purposes of this this
Act.
``(3) Interaction With Registration Requirements.--Notwithstanding
paragraph (2), an agricultural employer or agricultural association
shall not be subject to liability for any violation of title I by a
farm labor contractor.''.
(f) Davis-Bacon Act.--Subchapter IV of chapter 31 of title 40,
United States Code, as amended by section 102(f)(5), is further amended
by inserting after section 3144a the following:
``Sec. 3144b. Applicability to multiple employers and related entities
``(a) Multiple Employers.--
``(1) Rule of interpretation.--This subsection--
``(A) is to be read as an addition to, and an
augmentation and expansion of, all relevant judicial
and agency interpretations in existence on the date of
enactment of the Worker Flexibility and Small Business
Protection Act of 2020 regarding which persons qualify
as employers in relation to a given laborer or mechanic
under this subchapter, including in a multiple employer
or joint employment structure;
``(B) shall not be interpreted by any court or
agency as a restriction on, or narrowing of, any such
interpretations; and
``(C) is not a codification of the common law and
shall not be interpreted to reflect, or to be limited
or restricted by, common law interpretations regarding
whether a person is an employer of a given laborer or
mechanic or whether multiple persons are employers of a
laborer or mechanic.
``(2) Additional multiple employer determinations.--Two or
more persons, acting directly or indirectly, shall be
responsible for the rights and protections of this subchapter
with respect to a laborer or mechanic if--
``(A) one of the persons is a contractor, or
subcontractor, for a contract to which this subchapter
applies and the laborer or mechanic is performing labor
under such contract;
``(B) each such person directly or indirectly
benefits or seeks to directly or indirectly benefit
from the performance of labor by the laborer or
mechanic; and
``(C)(i) each such person exerts actual direction
or control, directly or indirectly, over any material
term or condition of employment of the laborer or
mechanic, including through an intermediary;
``(ii) each such person exerts functional direction
or control, directly or indirectly, over any material
term or condition of employment of the laborer or
mechanic, including through an intermediary;
``(iii) each such person is legally capable,
without regard as to whether such capability is used,
of directly or indirectly--
``(I) exerting direction or control over
any material term or condition of employment of
the laborer or mechanic;
``(II) ensuring compliance with the
requirements of this subchapter with regard to
the laborer or mechanic's performance of such
labor; or
``(III) upholding the rights and
protections of this subchapter with regard to
the laborer or mechanic's performance of such
labor; or
``(iv) based on an act or omission of the 2 or more
persons, the laborer or mechanic reasonably believed
that such persons were the laborer or mechanic's
employers and the laborer or mechanic did not have
actual knowledge that any of the persons were not the
laborer or mechanic's employer under this
subchapter.''.
(g) McNamara-O'Hara Service Contract Act.--Chapter 67 of title 41,
United States Code, is amended by inserting after section 6701 the
following:
``Sec. 6701a. Applicability to multiple employers and related entities
``(a) Multiple Employers.--
``(1) Rule of interpretation.--This subsection--
``(A) is to be read as an addition to, and an
augmentation and expansion of, all relevant judicial
and agency interpretations in existence on the date of
enactment of the Worker Flexibility and Small Business
Protection Act of 2020 regarding which persons qualify
as employers in relation to a given service employee
under this chapter, including in a multiple employer or
joint employment structure;
``(B) shall not be interpreted by any court or
agency as a restriction on, or narrowing of, any such
interpretations; and
``(C) is not a codification of the common law and
shall not be interpreted to reflect, or to be limited
or restricted by, common law interpretations regarding
whether a person is an employer of a given service
employee or whether multiple persons are employers of a
service employee.
``(2) Additional multiple employer determinations.--Two or
more persons, acting directly or indirectly, shall be
responsible for the rights and protections of this chapter with
respect to a service employee if--
``(A) one of the persons is a contractor, or
subcontractor, for a contract to which this chapter
applies and the service employee is performing labor
under such contract;
``(B) each such person directly or indirectly
benefits or seeks to directly or indirectly benefit
from the performance of labor by the service employee;
and
``(C)(i) each such person exerts actual direction
or control, directly or indirectly, over any material
term or condition of employment of the service
employee, including through an intermediary;
``(ii) each such person exerts functional direction
or control, directly or indirectly, over any material
term or condition of employment of the service
employee, including through an intermediary;
``(iii) each such person is legally capable,
without regard as to whether such capability is used,
of directly or indirectly--
``(I) exerting direction or control over
any material term or condition of employment of
the service employee;
``(II) ensuring compliance with the
requirements of this chapter with regard to the
service employee's performance of such labor;
or
``(III) upholding the rights and
protections of this chapter with regard to the
service employee's performance of such labor;
or
``(iv) based on an act or omission of the 2 or more
persons, the service employee reasonably believed that
such persons were the service employee's employers and
the service employee did not have actual knowledge that
any of the persons were not the service employee's
employer under this chapter.''.
(h) Walsh-Healey Public Contracts Act.--Chapter 65 of title 41,
United States Code, is amended by inserting after section 6501a the
following:
``Sec. 6501b. Applicability to multiple employers and related entities
``(a) Multiple Employers.--
``(1) Rule of interpretation.--This subsection--
``(A) is to be read as an addition to, and an
augmentation and expansion of, all relevant judicial
and agency interpretations in existence on the date of
enactment of the Worker Flexibility and Small Business
Protection Act of 2020 regarding which persons qualify
as employers in relation to a given individual
performing labor in the manufacture or furnishing of
materials, supplies, articles, or equipment under a
contract subject to this chapter, including in a
multiple employer or joint employment structure;
``(B) shall not be interpreted by any court or
agency as a restriction on, or narrowing of, any such
interpretations; and
``(C) is not a codification of the common law and
shall not be interpreted to reflect, or to be limited
or restricted by, common law interpretations regarding
whether a person is an employer of an individual
described in subparagraph (A) or whether multiple
persons are employers of such individual.
``(2) Additional multiple employer determinations.--Two or
more persons, acting directly or indirectly, shall be
responsible for the rights and protections of this chapter with
respect to an individual if--
``(A) one of the persons is a contractor for a
contract to which this chapter applies and the
individual is performing labor in the manufacture or
furnishing of materials, supplies, articles, or
equipment under the contract;
``(B) each such person directly or indirectly
benefits or seeks to directly or indirectly benefit
from such performance of labor by the individual; and
``(C)(i) each such person exerts actual direction
or control, directly or indirectly, over any material
term or condition of employment of the individual;
``(ii) each such person exerts functional direction
or control, directly or indirectly, over any material
term or condition of employment of the individual,
including through an intermediary;
``(iii) each such person is legally capable,
without regard as to whether such capability is used,
of directly or indirectly--
``(I) exerting direction or control over
any material term or condition of employment of
the individual;
``(II) ensuring compliance with the
requirements of this chapter with regard to the
individual's performance of such labor; or
``(III) upholding the rights and
protections of this chapter with regard to the
individual's performance of such labor; or
``(iv) based on an act or omission of the 2 or more
persons, the individual reasonably believed that such
persons were the individual's employers and the
individual did not have actual knowledge that any of
the persons were not the individual's employer under
this chapter.''.
(i) Family and Medical Leave Act of 1993.--Section 101(4) of the
Family and Medical Leave Act of 1993 (29 U.S.C. 2611(4)), as amended by
section 102(h)(3), is further amended by adding at the end the
following:
``(D) Multiple employers.--
``(i) Rule of interpretation.--This
subparagraph--
``(I) is to be read as an addition
to, and an augmentation and expansion
of, all relevant judicial and agency
interpretations in existence on the
date of enactment of the Worker
Flexibility and Small Business
Protection Act of 2020 regarding which
persons qualify as employers in
relation to a given employee under this
Act, including in a multiple employer
or joint employment structure;
``(II) shall not be interpreted by
any court or agency as a restriction
on, or narrowing of, any such
interpretations; and
``(III) is not a codification of
the common law and shall not be
interpreted to reflect, or to be
limited or restricted by, common law
interpretations regarding whether a
person is an employer of a given
employee or whether multiple persons
are employers of a given employee.
``(ii) In general.--Two or more persons
shall be employers with respect to an employee
if each such person individually, acting
directly or indirectly, is an employer, based
on and in accordance with the meaning given the
term `employer' under subparagraphs (A) and (B)
of this paragraph, and the definitions of
`employ' and `employee' under paragraph (3).
``(iii) Additional multiple employer
determinations.--Notwithstanding clause (ii), 2
or more persons shall be employers, acting
directly or indirectly, with respect to an
employee if--
``(I) each such person directly or
indirectly benefits or seeks to
directly or indirectly benefit from the
performance of labor by an employee;
and
``(II)(aa) each such person exerts
actual direction or control, directly
or indirectly, over any material term
or condition of employment of the
employee, including through an
intermediary;
``(bb) each such person exerts
functional direction or control,
directly or indirectly, over any
material term or condition of
employment of the employee, including
through an intermediary;
``(cc) each such person is legally
capable, without regard as to whether
such capability is used, of directly or
indirectly--
``(AA) exerting direction
or control over any material
term or condition of employment
of the employee;
``(BB) ensuring compliance
with the requirements of this
Act with regard to the
employee; or
``(CC) upholding the rights
and protections of this Act
with regard to the employee; or
``(dd) based on an act or omission
of the 2 or more persons, the employee
reasonably believed that such persons
were the employee's employers and the
employee did not have actual knowledge
that any of the persons were not the
employee's employer under this Act.''.
(j) Federal Unemployment Tax Act (FUTA).--
(1) In general.--Section 3306(w) of the Internal Revenue
Code of 1986, as added by section 102(j), is amended by adding
at the end the following new paragraph:
``(3) Paragraph (5) of section 3(d) of such Act.''.
(2) Effective date.--The amendment made by paragraph (1)
shall apply to services rendered on or after January 1, 2022.
SEC. 202. MASSIVE CORPORATIONS.
(a) Joint Responsibility for All Corporate Family Employees.--
(1) Fair labor standards act of 1938.--Section 3(d) of the
Fair Labor Standards Act of 1938 (29 U.S.C. 203(d)), as amended
by section 201(a), is further amended by adding at the end the
following:
``(6) Subsidiaries.--An employer shall also be responsible
for the rights and protections of this Act with regard to an
employee of a subsidiary of the employer, or subsidiary under a
subsidiary, in any case where the subsidiary is responsible for
the rights and protections of this Act for the employee.''.
(2) National labor relations act.--Section 2(2) of the
National Labor Relations Act (29 U.S.C. 152(2)), as amended by
section 201(b), is further amended by adding at the end the
following:
``(D) Subsidiaries.--An employer shall also be responsible
for the rights and protections of this Act with regard to an
employee of a subsidiary of the employer, or subsidiary under a
subsidiary, in any case where the subsidiary is responsible for
the rights and protections of this Act for the employee.''.
(3) Occupational safety and health act of 1970.--Section
3(5) of the Occupational Safety and Health Act of 1970 (29
U.S.C. 652(5)), as amended by section 201(c), is further
amended by adding at the end the following:
``(E) Subsidiaries.--An employer shall also be
responsible for the rights and protections of this Act
with regard to an employee of a subsidiary of the
employer, or subsidiary under a subsidiary, in any case
where the subsidiary is responsible for the rights and
protections of this Act for the employee.''.
(4) Federal mine safety and health act of 1977.--Section 4B
of the Federal Mine Safety and Health Act of 1977, as added by
section 201(d), is further amended by adding at the end the
following:
``(b) Subsidiaries.--An employer shall also be responsible for the
rights and protections of this Act with regard to a miner of a coal or
other mine who is an employee of a subsidiary of the employer, or
subsidiary under a subsidiary, in any case where the subsidiary is
responsible for the rights and protections of this Act for the
miner.''.
(5) Migrant and seasonal agricultural worker protection
act.--Section 5(c) of the Migrant and Seasonal Agricultural
Worker Protection Act (29 U.S.C. 1803(c)), as added by section
201(e), is further amended by adding at the end the following:
``(4) Subsidiaries.--An entity shall also be responsible
for the rights and protections of this Act with regard to an
individual who is a migrant agricultural worker or seasonal
agricultural worker employed by a farm labor contractor,
agricultural employer, or agricultural association, that is a
subsidiary of the entity, or a subsidiary under such a
subsidiary, in any case where the subsidiary is responsible for
the rights and protections of this Act for the migrant
agricultural worker or seasonal agricultural worker.''.
(6) Davis-bacon act.--Section 3144b of title 40, United
States Code, as added by section 201(f), is further amended by
adding at the end the following:
``(b) Subsidiaries.--An entity shall also be responsible for the
rights and protections of this subchapter with regard to a laborer or
mechanic employed by a contractor or any subcontractor that is a
subsidiary of the entity, or a subsidiary under such a subsidiary, in
any case where the subsidiary is responsible for the rights and
protections of this subchapter for the laborer or mechanic.''.
(7) McNamara-O'Hara service contract act.--Section 6701a of
title 41, United States Code, as added by section 201(g), is
further amended by adding at the end the following:
``(b) Subsidiaries.--An entity shall also be responsible for the
rights and protections of this chapter with regard to a service
employee of a contractor that is a subsidiary of the entity, or a
subsidiary under such a subsidiary, in any case where the subsidiary is
responsible for the rights and protections of this chapter for the
service employee.''.
(8) Walsh-healey public contracts act.--Section 6501b of
title 41, United States Code, as added by section 201(h), is
further amended by adding at the end the following:
``(b) Subsidiaries.--An entity shall also be responsible for the
rights and protections of this chapter with regard to an individual
employed by a contractor that is a subsidiary of the entity, or a
subsidiary under such a subsidiary, in any case where the subsidiary is
responsible for the rights and protections of this chapter for the
individual.''.
(9) Family and medical leave act of 1993.--Section 101(4)
of the Family and Medical Leave Act of 1993 (20 U.S.C.
2611(4)), as amended by section 201(i), is further amended by
adding at the end the following:
``(E) Subsidiaries.--An employer shall also be
responsible for the rights and protections of this Act
with regard to an employee of a subsidiary of the
employer, or subsidiary under a subsidiary, in any case
where the subsidiary is responsible for the rights and
protections of this Act for the employee.''.
(10) Federal unemployment tax act (futa).--
(A) In general.--Section 3306(w) of the Internal
Revenue Code of 1986, as amended by section 201(j), is
amended by adding at the end the following new
paragraph:
``(4) Paragraph (6) of section 3(d) of such Act.''.
(B) Effective date.--The amendment made by
subparagraph (A) shall apply to services rendered on or
after January 1, 2022.
(b) Joint Responsibility as Owners, Directors, Officers, and
Managing Agents.--
(1) Fair labor standards act of 1938.--Section 16 of the
Fair Labor Standards Act of 1938 (29 U.S.C. 216), as amended by
section 102(a)(8)(C), is further amended by adding at the end
the following:
``(g) Owners, Directors, Officers, and Managing Agents.--
``(1) In general.--In any action or proceeding for a
violation of this Act, the Secretary or court may also assess a
civil penalty for such violation against an owner, director,
officer, or managing agent of the employer if the Secretary or
court determines, based on the particular facts and
circumstances presented, that personal liability for the
violation is warranted because the owner, director, officer, or
managing agent--
``(A) directed or committed the violation;
``(B) established a policy that led to such a
violation; or
``(C) had actual or constructive knowledge of the
violation, had the authority to prevent the violation,
and failed to prevent the violation.
``(2) Amount of civil penalty.--The amount of, or range
for, a civil penalty for a violation under paragraph (1) shall,
in any case where a similar civil penalty against the employer
is established by law, be the amount or range for the civil
penalty that may be assessed against the employer for such
violation.''.
(2) National labor relations act.--Section 12 of the
National Labor Relations Act (29 U.S.C. 162), as amended by
section 102(b)(7)(B), is further amended by adding at the end
the following:
``(e) Owners, Directors, Officers, and Managing Agents.--
``(1) In general.--In any action or proceeding for a
violation of this Act, the Board or court may also assess a
civil penalty for such violation against an owner, director,
officer, or managing agent of the employer if the Board or
court determines, based on the particular facts and
circumstances presented, that personal liability for the
violation is warranted because the owner, director, officer, or
managing agent--
``(A) directed or committed the violation;
``(B) established a policy that led to such a
violation; or
``(C) had actual or constructive knowledge of the
violation, had the authority to prevent the violation,
and failed to prevent the violation.
``(2) Amount of civil penalty.--The amount of, or range
for, a civil penalty for a violation under paragraph (1) shall,
in any case where a similar civil penalty against the employer
is established by law, be the amount or range for the civil
penalty that may be assessed against the employer for such
violation.''.
(3) Occupational safety and health act of 1970.--Section 17
of the Occupational Safety and Health Act of 1970 (29 U.S.C.
666), as amended by section 102(c)(7)(B), is amended by
inserting after subsection (k) the following:
``(m) Owners, Directors, Officers, and Managing Agents.--
``(1) In general.--In any action or proceeding for a
violation of this Act, including any standard, rule,
regulation, or order promulgated pursuant to this Act, the
Secretary or court may also assess a civil penalty for such
violation against an owner, director, officer, or managing
agent of the employer if the Secretary or court determines,
based on the particular facts and circumstances presented, that
personal liability for the violation is warranted because the
owner, director, officer, or managing agent--
``(A) directed or committed the violation;
``(B) established a policy that led to such a
violation; or
``(C) had actual or constructive knowledge of the
violation, had the authority to prevent the violation,
and failed to prevent the violation.
``(2) Amount of civil penalty.--The amount of, or range
for, a civil penalty for a violation under paragraph (1) shall,
in any case where a similar civil penalty against the employer
is established by law, be the amount or range for the civil
penalty that may be assessed against the employer for such
violation.''.
(4) Federal mine safety and health act of 1977.--
(A) In general.--Title I of the Federal Mine Safety
and Health Act of 1977 (30 U.S.C. 820), as amended by
section 102(d), is further amended by adding at the end
the following:
``SEC. 118. LIABILITY OF OWNERS, DIRECTORS, OFFICERS, MANAGING AGENTS,
AND LARGE SHAREHOLDERS; INDEMNIFICATION.
``(a) Owners, Directors, Officers, and Managing Agents.--
``(1) In general.--In any action or proceeding for a
violation of this Act including any mandatory health or safety
standard, rule, order, or regulation promulgated pursuant to
this Act, the Secretary or court may also assess a civil
penalty against an owner, director, officer, or managing agent
of the operator or employer if the Secretary or court
determines, based on the particular facts and circumstances
presented, that personal liability for the violation is
warranted because the owner, director, officer, or managing
agent--
``(A) directed or committed the violation;
``(B) established a policy that led to such a
violation; or
``(C) had actual or constructive knowledge of the
violation, had the authority to prevent the violation,
and failed to prevent the violation.
``(2) Amount of civil penalty.--The amount of, or range
for, a civil penalty for a violation under paragraph (1) shall,
in any case where a similar civil penalty against the employer
is established by law, be the amount or range for the civil
penalty that may be assessed against the employer for such
violation.''.
(5) Migrant and seasonal agricultural worker protection
act.--Title V of the Migrant and Seasonal Agricultural Worker
Protection Act (29 U.S.C. 1851 et seq.), as amended by section
102(e)(5)(A), is further amended by inserting after section 504
the following:
``SEC. 505. LIABILITY OF OWNERS, DIRECTORS, OFFICERS, MANAGING AGENTS,
AND LARGE SHAREHOLDERS; INDEMNIFICATION.
``(a) Civil Penalty Liability for Owners, Directors, Officers, and
Managing Agents of Farm Labor Contractors, Agricultural Employers, or
Agricultural Associations.--
``(1) In general.--In any action or proceeding for a
violation of this Act, including any regulation under this Act,
by a farm labor contractor, agricultural employer, or
agricultural association, the Secretary or court may also
assess a civil penalty for such violation against an owner,
director, officer, or managing agent of the farm labor
contractor, agricultural employer, or agricultural association
if the Secretary or court determines, based on the particular
facts and circumstances presented, that personal liability for
the violation is warranted because the owner, director,
officer, or managing agent--
``(A) directed or committed the violation;
``(B) established a policy that led to such a
violation; or
``(C) had actual or constructive knowledge of the
violation, had the authority to prevent the violation,
and failed to prevent the violation.
``(2) Amount of civil penalty.--The amount of, or range
for, a civil penalty for a violation under paragraph (1) shall,
in any case where a similar civil penalty against the employer
is established by law, be the amount or range for the civil
penalty that may be assessed against the employer for such
violation.''.
(6) Davis-bacon act.--Section 3144c of title 40, United
States Code, as amended by section 102(f)(6), is further
amended by adding at the end the following:
``(d) Civil Penalty Liability for Owners, Directors, Officers, and
Managing Agents.--
``(1) In general.--In any action or proceeding for a
violation of this subchapter, the Secretary of Labor or court
may also assess a civil penalty for such violation against an
owner, director, officer, or managing agent of the contractor
or subcontractor if the Secretary or court determines, based on
the particular facts and circumstances presented, that personal
liability for the violation is warranted because the owner,
director, officer, or managing agent--
``(A) directed or committed the violation;
``(B) established a policy that led to such a
violation; or
``(C) had actual or constructive knowledge of the
violation, had the authority to prevent the violation,
and failed to prevent the violation.
``(2) Amount of civil penalty.--The amount of, or range
for, a civil penalty for a violation under paragraph (1) shall,
in any case where a similar civil penalty against the employer
is established by law, be the amount or range for the civil
penalty that may be assessed against the contractor or
subcontractor for such violation.''.
(7) McNamara-O'Hara service contract act.--Chapter 67 of
title 41, United States Code, is amended--
(A) by redesignating sections 6705, 6706, and 6707
as sections 6706, 6708, and 6709, respectively; and
(B) by inserting after section 6706 the following:
``Sec. 6707. Civil penalties assessed against owners, directors,
officers, managing agents, and large shareholders;
indemnification
``(a) Civil Penalty Liability for Owners, Directors, Officers, and
Managing Agents.--
``(1) In general.--In any action or proceeding for a
violation of this chapter, the Secretary or court may also
assess a civil penalty for such violation against an owner,
director, officer, or managing agent of the contractor if the
Secretary or court determines, based on the particular facts
and circumstances presented, that personal liability for the
violation is warranted because the owner, director, officer, or
managing agent--
``(A) directed or committed the violation;
``(B) established a policy that led to such a
violation; or
``(C) had actual or constructive knowledge of the
violation, had the authority to prevent the violation,
and failed to prevent the violation.
``(2) Amount of civil penalty.--The amount of, or range
for, a civil penalty for a violation under paragraph (1) shall,
in any case where a similar civil penalty against the employer
is established by law, be the amount or range for the civil
penalty that may be assessed against the contractor for such
violation.''.
(8) Walsh-healey public contracts act.--Section 6506b of
title 41, United States Code, as amended by section 102(g)(6),
is further amended by adding at the end the following:
``(d) Civil Penalties Assessed Against Owners, Directors, Officers,
Managing Agents, and Large Shareholders.--
``(1) In general.--In any action or proceeding for a
violation of this chapter, the Secretary or court may also
assess a civil penalty for such violation against an owner,
director, officer, or managing agent of the contractor if the
Secretary or court determines, based on the particular facts
and circumstances presented, that personal liability for the
violation is warranted because the owner, director, officer, or
managing agent--
``(A) directed or committed the violation;
``(B) established a policy that led to such a
violation; or
``(C) had actual or constructive knowledge of the
violation, had the authority to prevent the violation,
and failed to prevent the violation.
``(2) Amount of civil penalty.--The amount of, or range
for, a civil penalty for a violation under paragraph (1) shall,
in any case where a similar civil penalty against the employer
is established by law, be the amount or range for the civil
penalty that may be assessed against the contractor for such
violation.''.
(9) Family and medical leave act of 1993.--Section 107 of
the Family and Medical Leave Act of 1993 (29 U.S.C. 2617) is
amended--
(A) by redesignating subsections (e) and (f) as
subsections (i) and (j), respectively; and
(B) by inserting after subsection (d) the
following:
``(e) Owners, Directors, Officers, and Managing Agents.--
``(1) In general.--In any action or proceeding for a
violation of this Act, the Secretary or court may also assess a
civil penalty for such violation against an owner, director,
officer, or managing agent of the employer if the Secretary or
court determines, based on the particular facts and
circumstances presented, that personal liability for the
violation is warranted because the owner, director, officer, or
managing agent--
``(A) directed or committed the violation;
``(B) established a policy that led to such a
violation; or
``(C) had actual or constructive knowledge of the
violation, had the authority to prevent the violation,
and failed to prevent the violation.
``(2) Amount of civil penalty.--The amount of, or range
for, a civil penalty for a violation under paragraph (1) shall,
in any case where a similar civil penalty against the employer
is established by law, be the amount or range for the civil
penalty that may be assessed against the employer for such
violation.''.
(c) Responsibilities of 10 Largest Shareholders.--
(1) Fair labor standards act of 1938.--Section 16 of the
Fair Labor Standards Act of 1938 (20 U.S.C. 216), as amended by
subsection (b)(1), is further amended by adding at the end the
following:
``(h) Joint Liability of Large Shareholders.--
``(1) In general.--In any action or proceeding for a
violation of this Act, the 10 largest shareholders of an
employer, as determined by the fair value for their beneficial
interest as of the beginning of the period during which the
violation occurred, shall--
``(A) jointly and severally be personally liable
for all violations of this Act and for all damages
awarded and civil penalties assessed for violations of
this Act; and
``(B) notwithstanding subparagraph (A), be
personally responsible for 10 percent of any damages,
civil penalties, or other restitution or fees assessed
against the employer for the violations, with the
employer responsible for not more than 90 percent.
``(2) No reimbursement.--An employer may not refund in any
way any amounts paid by a shareholder under paragraph (1).''.
(2) National labor relations act.--Section 12 of the
National Labor Relations Act (29 U.S.C. 162), as amended by
subsection (b)(2), is further amended by adding at the end the
following:
``(f) Joint Liability of Large Shareholders.--
``(1) In general.--In any action or proceeding for a
violation of this Act, the 10 largest shareholders of an
employer, as determined by the fair value for their beneficial
interest as of the beginning of the period during which the
violation occurred, shall--
``(A) jointly and severally be personally liable
for all violations of this Act and for all damages
awarded and civil penalties assessed for violations of
this Act; and
``(B) notwithstanding subparagraph (A), be
personally responsible for 10 percent of any damages,
civil penalties, or other restitution or fees assessed
against the employer for the violations, with the
employer responsible for not more than 90 percent.
``(2) No reimbursement.--An employer may not refund in any
way any amounts paid by a shareholder under paragraph (1).''.
(3) Occupational safety and health act of 1970.--Section 17
of the Occupational Safety and Health Act of 1970 (29 U.S.C.
666), as amended by subsection (b)(3), is further amended by
adding at the end the following:
``(n) Joint Liability of Large Shareholders.--
``(1) In general.--In any action or proceeding for a
violation of this Act, including any standard, rule,
regulation, or order promulgated pursuant to this Act, the 10
largest shareholders of an employer, as determined by the fair
value for their beneficial interest as of the beginning of the
period during which the violation occurred, shall--
``(A) jointly and severally be personally liable
for all violations of this Act and for all damages
awarded and civil penalties assessed for violations of
this Act; and
``(B) notwithstanding subparagraph (A), be
personally responsible for 10 percent of any damages,
civil penalties, or other restitution or fees assessed
against the employer for the violations, with the
employer responsible for not more than 90 percent.
``(2) No reimbursement.--An employer may not refund in any
way any amounts paid by a shareholder under paragraph (1).''.
(4) Federal mine safety and health act of 1977.--Section
118 of the Federal Mine Safety and Health Act of 1977, as added
by subsection (b)(4), is further amended by adding at the end
the following:
``(b) Joint Liability of Large Shareholders.--
``(1) In general.--In any action or proceeding for a
violation of this Act, including any mandatory health or safety
standard, rule, order, or regulation promulgated pursuant to
this Act, the 10 largest shareholders of an operator of a coal
or other mine, as determined by the fair value for their
beneficial interest as of the beginning of the period during
which such violation occurred, shall--
``(A) jointly and severally be personally liable
for all such violations, and for all damages awarded
and civil penalties assessed for such violations; and
``(B) notwithstanding subparagraph (A), be
personally responsible for 10 percent of any damages,
civil penalties, or other restitution or fees assessed
against the operator for all violations, with the
operator responsible for not more than 90 percent.
``(2) No reimbursement.--An operator may not refund in any
way any amounts paid by a shareholder under paragraph (1).''.
(5) Migrant and seasonal agricultural worker protection
act.--Section 505 of the Migrant and Seasonal Agricultural
Worker Protection Act, as added by subsection (b)(5), is
further amended by adding at the end the following:
``(b) Joint Liability of Large Shareholders.--
``(1) In general.--In any action or proceeding for a
violation of this Act, including any regulation under this Act,
the 10 largest shareholders of a farm labor contractor,
agricultural employer, or agricultural association, as
determined by the fair value for their beneficial interest as
of the beginning of the period during which such violation
occurred, shall--
``(A) jointly and severally be personally liable
for all violations of this Act, including any
regulation under this Act, and for all damages awarded
and civil penalties assessed for such violations; and
``(B) notwithstanding subparagraph (A), be
personally responsible for 10 percent of any damages,
civil penalties, or other restitution or fees assessed
against the farm labor contractor, agricultural
employer, or agricultural association for all
violations, with the farm labor contractor,
agricultural employer, or agricultural association
(respectively) responsible for not more than 90
percent.
``(2) No reimbursement.--A farm labor contractor,
agricultural employer, or agricultural association may not
refund in any way any amounts paid by a shareholder under
paragraph (1).''.
(6) Davis-bacon act.--Section 3144c of title 40, United
States Code, as amended by subsection (b)(6), is further
amended by adding at the end the following:
``(e) Joint Liability of Large Shareholders.--
``(1) In general.--In any action or proceeding for a
violation of this subchapter, the 10 largest shareholders of a
contractor or subcontractor, as determined by the fair value
for their beneficial interest as of the beginning of the period
during which the violation occurred, shall--
``(A) jointly and severally be personally liable
for all violations of this subchapter, and for all
damages awarded and civil penalties assessed for
violations of this subchapter; and
``(B) notwithstanding subparagraph (A), be
personally responsible for 10 percent of any damages,
civil penalties, or other restitution or fees assessed
against the contractor or subcontractor for the
violations, with the contractor or subcontractor
responsible for not more than 90 percent.
``(2) No reimbursement.--A contractor or subcontractor may
not refund in any way any amounts paid by a shareholder under
paragraph (1).''.
(7) McNamara-O'Hara service contract act.--Section 6707 of
title 41, United States Code, as amended by subsection
(b)(7)(A), is further amended by adding at the end the
following:
``(b) Joint Liability of Large Shareholders.--
``(1) In general.--In any action or proceeding for a
violation of this chapter, the 10 largest shareholders of a
contractor, as determined by the fair value for their
beneficial interest as of the beginning of the period during
which the violation occurred, shall--
``(A) jointly and severally be personally liable
for all violations of this chapter, and for all damages
awarded and civil penalties assessed for violations of
this chapter; and
``(B) notwithstanding subparagraph (A), be
personally responsible for 10 percent of any damages,
civil penalties, or other restitution or fees assessed
against the contractor for the violations, with the
contractor responsible for not more than 90 percent.
``(2) No reimbursement.--A contractor may not refund in any
way any amounts paid by a shareholder under paragraph (1).''.
(8) Walsh-healey public contracts act.--Section 6506b of
title 41, United States Code, as amended by subsection (b)(8),
is further amended by adding at the end the following:
``(e) Joint Liability of Large Shareholders.--
``(1) In general.--In any action or proceeding for a
violation of this chapter, the 10 largest shareholders of a
contractor, as determined by the fair value for their
beneficial interest as of the beginning of the period during
which the violation occurred, shall--
``(A) jointly and severally be personally liable
for all violations of this chapter, and for all damages
awarded and civil penalties assessed for violations of
this chapter; and
``(B) notwithstanding subparagraph (A), be
personally responsible for 10 percent of any damages,
civil penalties, or other restitution or fees assessed
against the contractor for the violations, with the
contractor responsible for not more than 90 percent.
``(2) No reimbursement.--A contractor may not refund in any
way any amounts paid by a shareholder under paragraph (1).''.
(9) Family and medical leave act of 1993.--Section 107 of
the Family and Medical Leave Act of 1993 (29 U.S.C. 2617), as
amended by subsection (b)(9), is further amended by inserting
after subsection (e) the following:
``(f) Joint Liability of Large Shareholders.--
``(1) In general.--In any action or proceeding for a
violation of this Act, the 10 largest shareholders of an
employer, as determined by the fair value for their beneficial
interest as of the beginning of the period during which the
violation occurred, shall--
``(A) jointly and severally be personally liable
for all violations of this Act and for all damages
awarded and civil penalties assessed for violations of
this Act; and
``(B) notwithstanding subparagraph (A), be
personally responsible for 10 percent of any damages,
civil penalties, or other restitution or fees assessed
against the employer for the violations, with the
employer responsible for not more than 90 percent.
``(2) No reimbursement.--An employer may not refund in any
way any amounts paid by a shareholder under paragraph (1).''.
SEC. 203. FRANCHISORS.
(a) Fair Labor Standards Act of 1938.--
(1) In general.--Section 3(d) of the Fair Labor Standards
Act of 1938 (29 U.S.C. 203(d)), as amended by section
202(a)(1), is further amended by adding at the end the
following:
``(7) Franchisors and franchisees.--A franchisor shall also
be responsible for the rights and protections of this Act with
regard to an employee, in any case where a franchisee of the
franchisor is responsible for the rights and protections of
this Act for the employee.''.
(2) Indemnification.--Section 16 of the Fair Labor
Standards Act of 1938, as amended by section 202(c)(1), is
further amended by adding at the end the following:
``(i) Franchisees and Franchisors.--
``(1) Indemnification by franchisor.--An employer or entity
that is found to be in violation of this Act and is a
franchisee shall have the right to indemnification as described
in paragraph (2) from the franchisor, in any case where the
violation was--
``(A) at the behest of the franchisor;
``(B) at the direction of the franchisor;
``(C) pursuant to any policies, agreements, or
contractual obligations emanating from the franchisor;
or
``(D) due to other direct or indirect control or
pressure from the franchisor.
``(2) Process for and type of indemnification.--
Indemnification under paragraph (1)--
``(A) may be sought by a franchisee in any court of
competent jurisdiction; and
``(B) shall include a full recovery from the
franchisor of all compensatory and punitive damages,
civil monetary penalties, attorney's fees, or other
amounts required to be paid by the franchisee as a
result of the violation of this Act.
``(3) Prohibition on waiver.--
``(A) In general.--A franchisor shall not require
or otherwise request a franchisee to waive the
franchisee's right to indemnification under this
subsection.
``(B) Remedy and civil penalty.--If a franchisor
violates subparagraph (A)--
``(i) any indemnification waiver obtained
shall be null and void; and
``(ii) the franchisor shall be subject to a
civil penalty of $100,000.
``(4) Prohibition on retaliation.--
``(A) In general.--A franchisor shall not end a
franchise agreement with, take adverse action in
relation to, or otherwise discriminate against, a
franchisee for pursuing indemnification under this
subsection.
``(B) Remedy and civil penalty.--Any franchisor who
violates subparagraph (A) shall be subject to a civil
penalty of $100,000.''.
(b) National Labor Relations Act.--
(1) In general.--Section 2(2) of the National Labor
Relations Act (29 U.S.C. 152(2)), as amended by section
202(a)(2), is further amended by adding at the end the
following:
``(E) Franchisors and franchisees.--A franchisor shall also
be responsible for the rights and protections of this Act with
regard to an employee, in any case where a franchisee of the
franchisor is responsible for the rights and protections of
this Act for the employee.''.
(2) Indemnification.--Section 12 of the National Labor
Relations Act (29 U.S.C. 162), as amended by section 202(c)(2),
is further amended by adding at the end the following:
``(g) Franchisees and Franchisors.--
``(1) Indemnification by franchisor.--An employer or entity
that is found to be in violation of this Act and is a
franchisee shall have the right to indemnification as described
in paragraph (2) from the franchisor, in any case where the
violation was--
``(A) at the behest of the franchisor;
``(B) at the direction of the franchisor;
``(C) pursuant to any policies, agreements, or
contractual obligations emanating from the franchisor;
or
``(D) due to other direct or indirect control or
pressure from the franchisor.
``(2) Process for and type of indemnification.--
Indemnification under paragraph (1)--
``(A) may be sought by a franchisee in any court of
competent jurisdiction; and
``(B) shall include a full recovery from the
franchisor of all compensatory and punitive damages,
civil monetary penalties, attorney's fees, or other
amounts required to be paid by the franchisee as a
result of the violation of this Act.
``(3) Prohibition on waiver.--
``(A) In general.--A franchisor shall not require
or otherwise request a franchisee to waive the
franchisee's right to indemnification under this
subsection.
``(B) Remedy and civil penalty.--If a franchisor
violates subparagraph (A)--
``(i) any indemnification waiver obtained
shall be null and void; and
``(ii) the franchisor shall be subject to a
civil penalty of $100,000.
``(4) Prohibition on retaliation.--
``(A) In general.--A franchisor shall not end a
franchise agreement with, take adverse action in
relation to, or otherwise discriminate against, a
franchisee for pursuing indemnification under this
subsection.
``(B) Remedy and civil penalty.--Any franchisor who
violates subparagraph (A) shall be subject to a civil
penalty of $100,000.''.
(c) Occupational Safety and Health Act of 1970.--
(1) In general.--Section 3(5) of the Occupational Safety
and Health Act of 1970 (29 U.S.C. 652(5)), as amended by
section 202(a)(3), is further amended by adding at the end the
following:
``(F) Franchisors and franchisees.--A franchisor
shall also be responsible for the rights and
protections of this Act with regard to an employee, in
any case where a franchisee of the franchisor is
responsible for the rights and protections of this Act
for the employee.''.
(2) Indemnification.--Section 17 of the Occupational Safety
and Health Act of 1970 (29 U.S.C. 666), as amended by section
202(c)(3), is further amended by adding at the end the
following:
``(o) Franchisees and Franchisors.--
``(1) Indemnification by franchisor.--An employer or other
entity that is a franchisee and is found to be in violation of
this Act shall have the right to indemnification as described
in paragraph (2) from the franchisor, in any case where the
violation was--
``(A) at the behest of the franchisor;
``(B) at the direction of the franchisor;
``(C) pursuant to any policies, agreements, or
contractual obligations emanating from the franchisor;
or
``(D) due to other direct or indirect control or
pressure from the franchisor.
``(2) Process for and type of indemnification.--
Indemnification under paragraph (1)--
``(A) may be sought by a franchisee in any court of
competent jurisdiction; and
``(B) shall include a full recovery from the
franchisor of all compensatory and punitive damages,
civil monetary penalties, attorney's fees, or other
amounts required to be paid by the franchisee as a
result of the violation of this Act.
``(3) Prohibition on waiver.--
``(A) In general.--A franchisor shall not require
or otherwise request a franchisee to waive the
franchisee's right to indemnification under this
subsection.
``(B) Remedy and civil penalty.--If a franchisor
violates subparagraph (A)--
``(i) any indemnification waiver obtained
shall be null and void; and
``(ii) the franchisor shall be subject to a
civil penalty of $100,000.
``(4) Prohibition on retaliation.--
``(A) In general.--A franchisor shall not end a
franchise agreement with, take adverse action in
relation to, or otherwise discriminate against, a
franchisee for pursuing indemnification under this
subsection.
``(B) Remedy and civil penalty.--Any franchisor who
violates subparagraph (A) shall be subject to a civil
penalty of $100,000.''.
(d) Federal Mine Safety and Health Act of 1977.--
(1) In general.--Section 4B of the Federal Mine Safety and
Health Act of 1977, as amended by section 202(a)(4), is further
amended by adding at the end the following:
``(c) Franchisors and Franchisees.--A franchisor shall also be
responsible for the rights and protections of this Act with regard to a
miner, in any case where a franchisee of the franchisor is responsible
for the rights and protections of this Act for the miner.''.
(2) Indemnification.--Section 118 of the Federal Mine
Safety and Health Act of 1977, as amended by section 202(c)(4),
is further amended by adding at the end the following:
``(c) Franchisees and Franchisors.--
``(1) Indemnification by franchisor.--An operator or other
entity that is found to be in violation of this Act and is a
franchisee shall have the right to indemnification as described
in paragraph (2) from the franchisor, in any case where the
violation was--
``(A) at the behest of the franchisor;
``(B) at the direction of the franchisor;
``(C) pursuant to any policies, agreements, or
contractual obligations emanating from the franchisor;
or
``(D) due to other direct or indirect control or
pressure from the franchisor.
``(2) Process for and type of indemnification.--
Indemnification under paragraph (1)--
``(A) may be sought by a franchisee in any court of
competent jurisdiction; and
``(B) shall include a full recovery from the
franchisor of all compensatory and punitive damages,
civil monetary penalties, attorney's fees, or other
amounts required to be paid by the franchisee as a
result of the violation of this Act.
``(3) Prohibition on waiver.--
``(A) In general.--A franchisor shall not require
or otherwise request a franchisee to waive the
franchisee's right to indemnification under this
subsection.
``(B) Remedy and civil penalty.--If a franchisor
violates subparagraph (A)--
``(i) any indemnification waiver obtained
shall be null and void; and
``(ii) the franchisor shall be subject to a
civil penalty of $100,000.
``(4) Prohibition on retaliation.--
``(A) In general.--A franchisor shall not end a
franchise agreement with, take adverse action in
relation to, or otherwise discriminate against, a
franchisee for pursuing indemnification under this
subsection.
``(B) Remedy and civil penalty.--Any franchisor who
violates subparagraph (A) shall be subject to a civil
penalty of $100,000.''.
(e) Migrant and Seasonal Agricultural Worker Protection Act.--
(1) In general.--Section 5(c) of the Migrant and Seasonal
Agricultural Worker Protection Act, as amended by section
202(a)(5), is further amended by adding at the end the
following:
``(4) Franchisors and franchisees.--A franchisor shall also
be responsible for the rights and protections of this Act with
regard to an individual who is a migrant agricultural worker or
seasonal agricultural worker employed by a farm labor
contractor, agricultural employer, or agricultural association,
in any case where a franchisee of the franchisor is responsible
for the rights and protections of this Act for the migrant
agricultural worker or seasonal agricultural worker.''.
(2) Indemnification.--Section 505 of the Migrant and
Seasonal Agricultural Worker Protection Act, as amended by
section 202(c)(5), is further amended by adding at the end the
following:
``(c) Franchisees and Franchisors.--
``(1) Indemnification by franchisor.--A farm labor
contractor, agricultural employer, agricultural association, or
other entity that is found to be in violation of this Act and
is a franchisee shall have the right to indemnification as
described in paragraph (2) from the franchisor, in any case
where the violation was--
``(A) at the behest of the franchisor;
``(B) at the direction of the franchisor;
``(C) pursuant to any policies, agreements, or
contractual obligations emanating from the franchisor;
or
``(D) due to other direct or indirect control or
pressure from the franchisor.
``(2) Process for and type of indemnification.--
Indemnification under paragraph (1)--
``(A) may be sought by a franchisee in any court of
competent jurisdiction; and
``(B) shall include a full recovery from the
franchisor of all compensatory and punitive damages,
civil monetary penalties, attorney's fees, or other
amounts required to be paid by the franchisee as a
result of the violation of this Act.
``(3) Prohibition on waiver.--
``(A) In general.--A franchisor shall not require
or otherwise request a franchisee to waive the
franchisee's right to indemnification under this
subsection.
``(B) Remedy and civil penalty.--If a franchisor
violates subparagraph (A)--
``(i) any indemnification waiver obtained
shall be null and void; and
``(ii) the franchisor shall be subject to a
civil penalty of $100,000.
``(4) Prohibition on retaliation.--
``(A) In general.--A franchisor shall not end a
franchise agreement with, take adverse action in
relation to, or otherwise discriminate against, a
franchisee for pursuing indemnification under this
subsection.
``(B) Remedy and civil penalty.--Any franchisor who
violates subparagraph (A) shall be subject to a civil
penalty of $100,000.''.
(f) Davis-Bacon Act.--
(1) In general.--Section 3144b of title 40, United States
Code, as amended by section 202(a)(6), is further amended by
adding at the end the following:
``(c) Franchisors and Franchisees.--A franchisor shall also be
responsible for the rights and protections of this subchapter with
regard to a laborer or mechanic in any case where a franchisee of the
franchisor is responsible for the rights and protections of this
subchapter for the laborer or mechanic.''.
(2) Indemnification.--Section 3144c of title 40, United
States Code, as amended by section 202(c)(6), is further
amended by adding at the end the following:
``(f) Franchisees and Franchisors.--
``(1) Indemnification by franchisor.--A contractor,
subcontractor, or other entity that is found to be in violation
of this subchapter and is a franchisee shall have the right to
indemnification as described in paragraph (2) from the
franchisor, in any case where the violation was--
``(A) at the behest of the franchisor;
``(B) at the direction of the franchisor;
``(C) pursuant to any policies, agreements, or
contractual obligations emanating from the franchisor;
or
``(D) due to other direct or indirect control or
pressure from the franchisor.
``(2) Process for and type of indemnification.--
Indemnification under paragraph (1)--
``(A) may be sought by a franchisee in any court of
competent jurisdiction; and
``(B) shall include a full recovery from the
franchisor of all compensatory and punitive damages,
civil monetary penalties, attorney's fees, or other
amounts required to be paid by the franchisee as a
result of the violation of this subchapter.
``(3) Prohibition on waiver.--
``(A) In general.--A franchisor shall not require
or otherwise request a franchisee to waive the
franchisee's right to indemnification under this
subsection.
``(B) Remedy and civil penalty.--If a franchisor
violates subparagraph (A)--
``(i) any indemnification waiver obtained
shall be null and void; and
``(ii) the franchisor shall be subject to a
civil penalty of $100,000.
``(4) Prohibition on retaliation.--
``(A) In general.--A franchisor shall not end a
franchise agreement with, take adverse action in
relation to, or otherwise discriminate against, a
franchisee for pursuing indemnification under this
subsection.
``(B) Remedy and civil penalty.--Any franchisor who
violates subparagraph (A) shall be subject to a civil
penalty of $100,000.''.
(g) McNamara-O'Hara Service Contract Act.--
(1) In general.--Section 6701a of title 41, United States
Code, as amended by section 202(a)(7), is further amended by
adding at the end the following:
``(c) Franchisors and Franchisees.--A franchisor shall also be
responsible for the rights and protections of this chapter with regard
to a service employee in any case where a franchisee of the franchisor
is responsible for the rights and protections of this chapter for the
service employee.''.
(2) Indemnification.--Section 6707 of title 41, United
States Code, as amended by section 202(c)(7), is further
amended by adding at the end the following:
``(c) Franchisees and Franchisors.--
``(1) Indemnification by franchisor.--A contractor,
subcontractor, or other entity that is found to be in violation
of this chapter and is a franchisee shall have the right to
indemnification as described in paragraph (2) from the
franchisor, in any case where the violation was--
``(A) at the behest of the franchisor;
``(B) at the direction of the franchisor;
``(C) pursuant to any policies, agreements, or
contractual obligations emanating from the franchisor;
or
``(D) due to other direct or indirect control or
pressure from the franchisor.
``(2) Process for and type of indemnification.--
Indemnification under paragraph (1)--
``(A) may be sought by a franchisee in any court of
competent jurisdiction; and
``(B) shall include a full recovery from the
franchisor of all compensatory and punitive damages,
civil monetary penalties, attorney's fees, or other
amounts required to be paid by the franchisee as a
result of the violation of this chapter.
``(3) Prohibition on waiver.--
``(A) In general.--A franchisor shall not require
or otherwise request a franchisee to waive the
franchisee's right to indemnification under this
subsection.
``(B) Remedy and civil penalty.--If a franchisor
violates subparagraph (A)--
``(i) any indemnification waiver obtained
shall be null and void; and
``(ii) the franchisor shall be subject to a
civil penalty of $100,000.
``(4) Prohibition on retaliation.--
``(A) In general.--A franchisor shall not end a
franchise agreement with, take adverse action in
relation to, or otherwise discriminate against, a
franchisee for pursuing indemnification under this
subsection.
``(B) Remedy and civil penalty.--Any franchisor who
violates subparagraph (A) shall be subject to a civil
penalty of $100,000.''.
(h) Walsh-Healey Public Contracts Act.--
(1) In general.--Section 6501b of title 41, United States
Code, as amended by section 202(a)(8), is further amended by
adding at the end the following:
``(c) Franchisors and Franchisees.--A franchisor shall also be
responsible for the rights and protections of this chapter with regard
to an individual employed under a contract to which this chapter
applies, in any case where a franchisee of the franchisor is
responsible for the rights and protections of this chapter for the
individual.''.
(2) Indemnification.--Section 6506b of title 41, United
States Code, as amended by section 202(c)(8), is further
amended by adding at the end the following:
``(f) Franchisees and Franchisors.--
``(1) Indemnification by franchisor.--A contractor,
subcontractor, or other entity that is found to be in violation
of this chapter and is a franchisee shall have the right to
indemnification as described in paragraph (2) from the
franchisor, in any case where the violation was--
``(A) at the behest of the franchisor;
``(B) at the direction of the franchisor;
``(C) pursuant to any policies, agreements, or
contractual obligations emanating from the franchisor;
or
``(D) due to other direct or indirect control or
pressure from the franchisor.
``(2) Process for and type of indemnification.--
Indemnification under paragraph (1)--
``(A) may be sought by a franchisee in any court of
competent jurisdiction; and
``(B) shall include a full recovery from the
franchisor of all compensatory and punitive damages,
civil monetary penalties, attorney's fees, or other
amounts required to be paid by the franchisee as a
result of the violation of this chapter.
``(3) Prohibition on waiver.--
``(A) In general.--A franchisor shall not require
or otherwise request a franchisee to waive the
franchisee's right to indemnification under this
subsection.
``(B) Remedy and civil penalty.--If a franchisor
violates subparagraph (A)--
``(i) any indemnification waiver obtained
shall be null and void; and
``(ii) the franchisor shall be subject to a
civil penalty of $100,000.
``(4) Prohibition on retaliation.--
``(A) In general.--A franchisor shall not end a
franchise agreement with, take adverse action in
relation to, or otherwise discriminate against, a
franchisee for pursuing indemnification under this
subsection.
``(B) Remedy and civil penalty.--Any franchisor who
violates subparagraph (A) shall be subject to a civil
penalty of $100,000.''.
(i) Family and Medical Leave Act of 1993.--
(1) In general.--Section 101(4) of the Family and Medical
Leave Act of 1993 (29 U.S.C. 2611(4)), as amended by section
202(a)(9), is further amended by adding at the end the
following:
``(F) Franchisors and franchisees.--A franchisor
shall also be responsible for the rights and
protections of this Act with regard to an employee, in
any case where a franchisee of the franchisor is
responsible for the rights and protections of this Act
for the employee.''.
(2) Indemnification.--Section 107 of the Family and Medical
Leave Act of 1993 (29 U.S.C. 2617), as amended by section
202(c)(9), is further amended by inserting after subsection (f)
the following:
``(g) Franchisees and Franchisors.--
``(1) Indemnification by franchisor.--An employer or other
entity that is found to be in violation of this Act and is a
franchisee shall have the right to indemnification as described
in paragraph (2) from the franchisor, in any case where the
violation was--
``(A) at the behest of the franchisor;
``(B) at the direction of the franchisor;
``(C) pursuant to any policies, agreements, or
contractual obligations emanating from the franchisor;
or
``(D) due to other direct or indirect control or
pressure from the franchisor.
``(2) Process for and type of indemnification.--
Indemnification under paragraph (1)--
``(A) may be sought by a franchisee in any court of
competent jurisdiction; and
``(B) shall include a full recovery from the
franchisor of all compensatory and punitive damages,
civil monetary penalties, attorney's fees, or other
amounts required to be paid by the franchisee as a
result of the violation of this Act.
``(3) Prohibition on waiver.--
``(A) In general.--A franchisor shall not require
or otherwise request a franchisee to waive the
franchisee's right to indemnification under this
subsection.
``(B) Remedy and civil penalty.--If a franchisor
violates subparagraph (A)--
``(i) any indemnification waiver obtained
shall be null and void; and
``(ii) the franchisor shall be subject to a
civil penalty of $100,000.
``(4) Prohibition on retaliation.--
``(A) In general.--A franchisor shall not end a
franchise agreement with, take adverse action in
relation to, or otherwise discriminate against, a
franchisee for pursuing indemnification under this
subsection.
``(B) Remedy and civil penalty.--Any franchisor who
violates subparagraph (A) shall be subject to a civil
penalty of $100,000.''.
(j) Federal Unemployment Tax Act (FUTA).--
(1) In general.--Section 3306(w) of the Internal Revenue
Code of 1986, as amended by section 202(a)(10), is amended by
adding at the end the following new paragraphs:
``(5) Paragraph (7) of section 3(d) of such Act.
``(6) Subsection (i) of section 16 of such Act.''.
(2) Effective date.--The amendment made by paragraph (1)
shall apply to services rendered on or after January 1, 2022.
SEC. 204. TEMPORARY STAFFING COMPANIES.
(a) Responsibilities of Employers Utilizing Employees of Staffing
Companies and Other Covered Employees.--
(1) Fair labor standards act of 1938.--Section 3(d) of the
Fair Labor Standards Act of 1938 (29 U.S.C. 203(d)), as amended
by section 203(a)(1), is further amended by adding at the end
the following:
``(8) Employers of employees of staffing companies and
other covered employees.--An employer shall also be responsible
for the rights and protections of this Act with regard to one
or more covered employees (as defined in section 6(c)(1))
provided by another employer to perform labor for the
employer.''.
(2) National labor relations act.--Section 2(2) of the
National Labor Relations Act (29 U.S.C. 152(2)), as amended by
section 203(b)(1), is further amended by adding at the end the
following:
``(F) Employers of employees of staffing companies and
other covered employees.--An employer shall also be responsible
for the rights and protections of this Act with regard to one
or more covered employees (as defined in section 6(c)(1) of the
Fair Labor Standards Act of 1938 (29 U.S.C. 206(c)(1)))
provided by another employer to perform labor for the
employer.''.
(3) Occupational safety and health act of 1970.--Section
3(5) of the Occupational Safety and Health Act of 1970 (29
U.S.C. 652(5)), as amended by section 203(c), is further
amended by adding at the end the following:
``(G) Employers of employees of staffing companies
and other covered employees.--An employer shall also be
responsible for the rights and protections of this Act
with regard to one or more covered employees (as
defined in section 6(c)(1) of the Fair Labor Standards
Act (29 U.S.C. 206(c)(1))) provided by another employer
to perform labor for the employer.''.
(4) Federal mine safety and health act of 1977.--Section 4B
of the Federal Mine Safety and Health Act of 1977, as amended
by section 203(d)(1), is further amended by adding at the end
the following:
``(d) Employers of Employees of Staffing Companies and Other
Covered Employees.--An operator of a coal or other mine shall also be
responsible for the rights and protections of this Act with regard to
one or more covered employees (as defined in section 6(c)(1) of the
Fair Labor Standards Act (29 U.S.C. 206(c)(1))) provided by another
employer to perform labor as miners for the operator.''.
(5) Migrant and seasonal agricultural worker protection
act.--Section 5(c) of the Migrant and Seasonal Agricultural
Worker Protection Act, as amended by section 203(e), is further
amended by adding at the end the following:
``(5) Employers of employees of staffing companies and
other covered employees.--A farm labor contractor, agricultural
employer, or agricultural association shall also be responsible
for the rights and protections of this Act with regard to one
or more migrant agricultural workers or seasonal agricultural
workers who--
``(A) are covered employees (as defined in section
6(c)(1) of the Fair Labor Standards Act of 1938); and
``(B) are provided by another employer to perform
labor for the farm labor contractor, agricultural
employer, or agricultural association.''.
(6) Davis-bacon act.--Section 3144b of title 40, United
States Code, as amended by section 203(f)(1), is further
amended by adding at the end the following:
``(d) Employers of Employees of Staffing Companies and Other
Covered Employees.--A contractor or any subcontractor shall also be
responsible for the rights and protections of this subchapter with
regard to one or more laborers or mechanics who are covered employees
(as defined in section 6(c)(1) of the Fair Labor Standards Act (29
U.S.C. 206(c)(1))) provided by another employer to perform labor for
the contractor or subcontractor under a contract to which this
subchapter applies.''.
(7) McNamara-O'Hara service contract act.--Section 6701a of
title 41, United States Code, as amended by section 203(g), is
further amended by adding at the end the following:
``(d) Employers of Employees of Staffing Companies and Other
Covered Employees.--A contractor shall also be responsible for the
rights and protections of this chapter with regard to one or more
service employees who are covered employees (as defined in section
6(c)(1) of the Fair Labor Standards Act (29 U.S.C. 206(c)(1))) provided
by another employer to perform labor for the contractor under a
contract to which this chapter applies.''.
(8) Walsh-healey public contracts act.--Section 6501b of
title 41, United States Code, as amended by section 203(h), is
further amended by adding at the end the following:
``(d) Employers of Employees of Staffing Companies and Other
Covered Employees.--A contractor shall also be responsible for the
rights and protections of this chapter with regard to one or more
individuals who are covered employees (as defined in section 6(c)(1) of
the Fair Labor Standards Act (29 U.S.C. 206(c)(1))) provided by another
employer to perform labor in the manufacture or furnishing of
materials, supplies, articles, or equipment for the contractor under a
contract to which this chapter applies.''.
(9) Family and medical leave act of 1993.--Section 101(4)
of the Family and Medical Leave Act of 1993 (29 U.S.C.
2611(4)), as amended by section 203(i), is further amended by
adding at the end the following:
``(G) Employers of employees of staffing companies
and other covered employees.--An employer shall also be
responsible for the rights and protections of this Act
with regard to one or more covered employees (as
defined in section 6(c)(1) of the Fair Labor Standards
Act of 1938 (29 U.S.C. 206(c)(1))) provided by another
employer to perform labor for the employer.''.
(10) Federal unemployment tax act (futa).--
(A) In general.--Section 3306(w) of the Internal
Revenue Code of 1986, as amended by section 203(j), is
amended by adding at the end the following new
paragraph:
``(7) Paragraph (8) of section 3(d) of such Act.''.
(B) Effective date.--The amendment made by
subparagraph (A) shall apply to services rendered on or
after January 1, 2022.
(b) Equitable Treatment for Employees of Staffing Companies and
Other Covered Employees.--
(1) In general.--Section 6 of the Fair Labor Standards Act
of 1938 (29 U.S.C. 206) is amended by inserting after
subsection (b) the following:
``(c) Employees of Staffing Companies and Other Covered
Employees.--
``(1) Definition of covered employee.--In this subsection,
the term `covered employee' means an employee provided by
another employer to perform labor for the employer, including a
temporary or short-term contract employee.
``(2) Wages for covered employees.--
``(A) In general.--No employer shall pay wages to a
covered employee provided by another employer to
perform labor for the employer, or allow a covered
employee provided by another employer to perform labor
for the employer at wages, at a rate less than the
prevailing rate at which the employer for whom the
labor is performed pays wages to direct employees for
similar work on jobs the performance of which requires
similar skill, effort, and responsibility, and which
are performed under similar working conditions, except
as provided in subparagraph (B).
``(B) Exceptions.--An employer may pay a covered
employee a wage at a rate less than the wage rate
required under subparagraph (A) if--
``(i) such payment is made pursuant to--
``(I) a seniority system;
``(II) a merit system;
``(III) a system that measures rate
of pay by quantity or quality of
production; or
``(IV) a differential based on any
lawful factor other than employment
status; and
``(ii) the rate is not less than 80 percent
of the prevailing rate at which the employer
for whom the labor is performed pays wages to
direct employees for similar work on jobs the
performance of which requires similar skill,
effort, and responsibility, and which are
performed under similar working conditions.
``(3) Increased wages for covered employees.--
``(A) In general.--In the case of a covered
employee who is not provided with the same benefits as
the employer for whom the labor is being performed
provides to its direct employees, the employer for whom
the labor is being performed shall pay the covered
employee, or require the employer providing the covered
employee to pay the covered employee, a wage rate that,
subject to subparagraph (B), is not less than the sum
of--
``(i) the wage rate required under
paragraph (2); and
``(ii) the lesser of--
``(I) an amount equal to 25 percent
of the wage rate required under
paragraph (2); or
``(II) the amount the employee
would have to pay to secure equivalent
benefits without an employer's
assistance.
``(B) Minimum.--In no case shall the minimum wage
rate required under subparagraph (A) be less than 125
percent of the minimum wage rate required under
subsection (a)(1).''.
(2) Limiting exemptions.--Section 13 of the Fair Labor
Standards Act of 1938 (29 U.S.C. 213) is amended--
(A) in the matter preceding paragraph (1) of
subsection (a), by inserting ``and section 6(c)'' after
``this subsection'';
(B) in subsection (d), by inserting ``(except for
subsection (c) of such section)'' after ``sections 6'';
and
(C) in subsection (f), by inserting ``(except for
subsection (c) of such section)'' after ``sections 6''.
(c) New Protections for Employees of Staffing Companies and Other
Covered Employees.--
(1) In general.--Section 9 of the Fair Labor Standards Act
of 1938, as added by section 102(a)(6)(C)(i), is further
amended by adding at the end the following:
``(b) Protections for Employees of Staffing Companies and Other
Covered Employees.--
``(1) Definition of covered employee.--In this subsection,
the term `covered employee' has the meaning given the term in
section 6(c)(1).
``(2) Registration of providing employers.--
``(A) In general.--Each employer that provides
covered employees to perform labor for another employer
shall register with the Secretary each year, in
accordance with this subsection and regulations of the
Secretary. Each such providing employer shall include
with the registration--
``(i) proof of an employer account number
for the purposes of the payment of unemployment
insurance contributions;
``(ii) proof of valid workers' compensation
insurance in effect at the time of registration
and covering all covered employees performing
labor for the employer; and
``(iii) a report containing the information
described in paragraph (7)(A)(ix), in the
aggregate for all covered employees of the
providing employer that performed labor for
another employer in the preceding calendar year
and disaggregated by branch office.
``(B) Registration fee.--The Secretary shall assess
each employer that registers under subparagraph (A) a
nonrefundable registration fee equal to the sum of--
``(i) $1,000 per year; and
``(ii) an additional $250 for each branch
office of the employer.
``(C) Immediate reporting of workers' compensation
lapse.--In any case where the workers' compensation
insurance of an employer required to register under
subparagraph (A) lapses--
``(i) the employer shall report the lapse
to the Secretary; and
``(ii) the Secretary shall suspend the
employer's registration until the employer's
workers' compensation insurance is reinstated.
``(D) Authority to deny, suspend, or revoke
registration.--
``(i) In general.--The Secretary shall have
the authority to deny, suspend, or revoke the
registration of an employer under subparagraph
(A) if warranted by violations of this
subsection or of any other Federal, State, or
local worker protection law.
``(ii) Duty to notify.--An employer whose
registration under subparagraph (A) is denied,
suspended, or revoked shall notify, both by
telephone and in writing, each of its covered
employees and each of the employers for whom
its covered employees perform labor within 24
hours of any denial, suspension, or revocation
of its registration.
``(E) Ineligibility.--An employer requesting to
register with the Secretary under subparagraph (A) is
ineligible if, within the 5 years immediately preceding
the date of the employer's registration request, the
employer or any of its officers, directors, partners,
or managers, or any owner of 25 percent or greater
beneficial interest, has been involved, as officer,
director, partner, manager, or owner, in another
employer whose registration under such subparagraph was
revoked or suspended without being reinstated.
``(F) Website.--The Secretary shall create and
maintain a public website that includes--
``(i) a list of all employers whose
registration under subparagraph (A) is in good
standing;
``(ii) a list of all employers whose
registration under subparagraph (A) has been
suspended, including the reason for the
suspension, the date the suspension was
initiated, and, if known, the date the
suspension is to be lifted; and
``(iii) a list of all employers whose
registration under subparagraph (A) has been
revoked, including the reason for the
revocation and the date the registration was
revoked.
``(3) Employers for whom employees perform labor.--
``(A) In general.--No employer for whom a covered
employee is provided by another employer to perform
labor may enter into a contract or any other agreement
for such labor with any employer not registered under
paragraph (2)(A).
``(B) Verification.--
``(i) Requirements for receiving
employers.--An employer for whom a covered
employee is provided by another employer to
perform labor shall verify the providing
employer's status with the Secretary of Labor
before entering into a contract or other
agreement with the providing employer, and at
annual intervals thereafter.
``(ii) Requirements for providing
employers.--An employer that provides a covered
employee to another employer to perform labor
shall provide any employer for whom its covered
employee performs labor with proof of valid
registration under paragraph (2)(A) before
entering into any contract or other agreement
with the receiving employer.
``(C) List of registered employers.--Upon request,
the Secretary shall provide to any requesting party a
list of employers registered under paragraph (2)(A) and
an employer may rely in good faith on the information
on such list provided by the Secretary.
``(4) No work restrictions.--No employer that provides a
covered employee to perform labor for another employer shall--
``(A) restrict the right of a covered employee to
accept direct employment with an employer for whom the
covered employee has performed labor;
``(B) restrict the right of an employer for whom
the covered employee has performed labor to offer such
direct employment; or
``(C) charge any fee, either to the covered
employee or an employer for whom the covered employee
has performed labor, for the covered employee
converting to direct employment with such employer.
``(5) Prohibition on permatemp workers.--
``(A) Conversion of temporary workers to direct
employees.--After a covered employee performs labor for
an employer for 1,040 total hours during any 12-month
period, such employer shall convert the covered
employee to a direct employee of such employer.
``(B) Prohibitions on evasion.--
``(i) No multiple contracts.--An employer
shall not terminate or end the agreement under
which a covered employee is providing labor to
the employer and then reengage such covered
employee at a later date in order to evade the
requirements of this subsection.
``(ii) No replacement employees.--An
employer shall not terminate or end the
agreement under which a covered employee is
providing labor to the employer and then engage
a different covered employee in order to evade
the requirements of this subsection.
``(6) Employment notices.--
``(A) In general.--Whenever an employer agrees to
provide 1 or more covered employees to perform labor
for another employer, the providing employer shall
provide to each covered employee and to the other
employer, at the time of dispatch, a statement
containing the following information on a form approved
by the Secretary:
``(i) The name of the covered employee.
``(ii) The name, address, and phone number
of the providing employer that has agreed to
the dispatch.
``(iii) The name, address, and phone number
of the employer for whom the covered employee
will perform labor.
``(iv) The name, address, and phone number
of the providing employer's workers'
compensation insurance carrier.
``(v) The address and phone number of the
nearest regional office of the Department of
Labor.
``(vi) The name of the position, the nature
of the work to be performed, and the types of
equipment, clothing, and training that are
required for the task.
``(vii) The wages offered, including the
hourly rate of pay and the hourly rate of
overtime pay, should overtime hours be
performed.
``(viii) The designated pay day.
``(ix) The anticipated daily start times
and daily end times.
``(x) The anticipated duration of the
dispatch.
``(xi) The terms of transportation.
``(xii) Whether meals or equipment, or
both, are provided and the cost of the meal and
equipment to the covered employee, if any.
``(B) Duration.--If a covered employee who is
provided by an employer to perform labor for another
employer is assigned to the same employer for more than
1 day, the providing employer is required to provide
the employment information described in subparagraph
(A) only on--
``(i) the first day of the assignment; and
``(ii) if any of the terms described in
subparagraph (A) are changed, the first day of
such change.
``(C) Confirmation of work sought.--If an employer
that provides covered employees to other employers to
perform labor does not place a covered employee with an
employer for whom to perform labor for a particular
day, the providing employer shall, upon request,
provide the covered employee with a written and signed
confirmation that the covered employee sought work,
which shall include the name of the providing employer,
the name and address of the covered employee, and the
date and time that the covered employee received the
confirmation.
``(D) No covered employees during labor disputes.--
No employer may provide a covered employee to perform
labor at any workplace where a strike, lockout, or
other labor dispute exists.
``(7) Recordkeeping.--
``(A) Providing employer.--Whenever an employer
provides covered employees to perform labor for another
employer, the providing employer shall keep the
following records with respect to the covered
employees:
``(i) The name, address, and telephone
number for each employer to whom covered
employees were sent to perform labor, including
each worksite to which covered employees were
sent, and the date of the transaction
effectuating the agreement between employers.
``(ii) For each covered employee, the name,
address, and specific location of the worksite,
the type of labor performed, the number of
hours worked, and the hourly rate of pay.
``(iii) The name and title of all
individuals responsible for the transaction on
behalf of the employer for whom the covered
employee is performing labor.
``(iv) Any specific qualifications or
attributes of an employee that are requested by
the employer for whom the covered employee
performs labor.
``(v) Copies of all contracts (if any) or
other agreements with, and all invoices from,
the employer for whom the covered employee
performs labor.
``(vi) Copies of all employment notices
provided in accordance with paragraph (6)(A).
``(vii) Deductions to be made from the
covered employee's compensation, made by either
the providing employer or the employer for whom
the covered employee performs labor, for the
covered employee's transportation, food,
equipment, withheld income tax, withheld social
security payments, and any other deduction.
``(viii) Documentation verifying the actual
cost of any equipment or meal charged to a
covered employee.
``(ix) The race and gender of each covered
employee performing labor.
``(x) Any additional information as shall
be required by regulation of the Secretary.
``(B) Transmission requirements.--
``(i) In general.--The employer for whom
the covered employee is performing labor shall
transmit all information required under
subparagraph (A)(ii) to the employer who has
provided such covered employee not later than 7
days following the last day of the work week
worked for which the covered employee performed
work for the employer.
``(ii) Interaction with other
requirements.--The failure of an employer for
whom a covered employee is performing labor to
transmit the information required under this
subparagraph shall not exempt the covered
employee's providing employer from any other
recordkeeping requirements of this subsection.
``(8) Meals.--If a covered employee is provided with a
meal, the covered employee shall not be charged more than the
actual cost of the meal. A covered employee shall not be
charged for any meal not consumed by the covered employee.
Purchase of a meal by a covered employee shall not be a
condition of employment or performance of labor.
``(9) Transportation.--
``(A) In general.--A covered employee may not be
charged any fee for transport to or from a designated
worksite by either the employer who is providing the
covered employee for the performance of labor or the
employer for whom the covered employee is performing
labor.
``(B) Responsibility.--The employer who is
providing a covered employee to perform labor for
another employer is responsible for the conduct and
performance of any person whom the employer secures to
transport the covered employee to or from a designated
worksite and for the safety of the vehicle used for
such transport, unless the transporter is a part of
public mass transportation or a common carrier.
``(C) Referral limitations.--The employer who is
providing a covered employee to perform labor for
another employer may not refer the covered employee to
any person for transportation to or from a worksite
unless that person is--
``(i) part of public mass transportation;
or
``(ii) providing the transportation for no
fee.
``(D) Vehicle requirements.--Any motor vehicle
owned or operated by an employer who is providing a
covered employee to another employer that is used for
the covered employee's transportation to or from a
worksite must have a seat and safety belt for each
passenger and must be operated by a driver with a valid
license to operate such motor vehicle.
``(E) Round-trip transportation.--If a covered
employee is provided with transportation to a worksite
by either the covered employee's providing employer or
the employer for whom the covered employee is
performing labor, then the covered employee shall be
provided with transportation back to the point of
origin unless the covered employee agrees prior to
leaving for the worksite that the covered employee
already has secured or will secure alternative
transportation at the end of the covered employee's
shift.
``(F) Reimbursement and minimum compensation.--In
any case where an employer providing a covered employee
to perform labor for another employer dispatches a
covered employee to a job that does not exist, the
providing employer shall--
``(i) refund the covered employee's
reasonable transportation costs; and
``(ii) pay the covered employee
compensation equivalent to 2 hours of work.
``(10) Equipment.--For any safety equipment, specialized
clothing, accessories, or any other items required by the
nature of the work, either by law, custom, or the employer for
whom a covered employee is performing labor, the covered
employee--
``(A) shall not be charged for the items provided
by the providing employer or the employer for whom the
covered employee is performing labor, unless the
covered employee negligently damages or destroys such
items; and
``(B) if the covered employee is required to
purchase any such items, the employer for whom the
covered employee is performing labor shall refund the
cost of such items, including any related shipping or
handling, to the covered employee.
``(11) Other charges.--No covered employee shall be charged
by the employer who is providing the covered employee to
perform labor, or the employer for whom the covered employee is
performing work, for any of the following:
``(A) Registering with the covered employee's
providing employer.
``(B) Obtaining work assignments.
``(C) Drug tests.
``(D) Background checks.
``(E) Debit cards used for payment of wages or any
other method of wage payment.''.
(2) Penalties.--
(A) Prohibited acts.--Section 15(a) of the Fair
Labor Standards Act of 1938 (29 U.S.C. 215(a)), as
amended by section 102(a)(3)(B), is further amended by
adding at the end the following:
``(8) to violate any of the provisions of section 9(b).''.
(B) Penalties.--Section 16(e) of the Fair Labor
Standards Act of 1938 (29 U.S.C. 216(e)), as amended by
section 102(a)(7)(B), is further amended by adding at
the end the following:
``(9) Fines and Penalties Regarding Temporary and Other Covered
Employees.--
``(A) In general.--The Secretary may, after notice and an
opportunity for a hearing, assess a civil penalty not to exceed
$6,000 against any employer that violates any of the provisions
of section 9(b) (except for paragraph (2)(A) or (3) of such
section). Each violation of such section 9(b) for each day of
the violation and for each covered employee shall constitute a
separate and distinct violation of such section 9(b).
``(B) Registration violations.--The Secretary may, after
notice and an opportunity for a hearing, assess a civil penalty
against any employer that fails to register with the Secretary
of Labor in accordance with section 9(b)(2)(A), including any
rules issued under such section, of $500 per violation. Each
day during which an employer operates without registering shall
be a separate and distinct violation of such section.
``(C) Civil penalty.--Any employer for whom a covered
employee performs labor that violates section 9(b)(3) shall be
subject to a civil penalty of $500. Each day during which such
employer contracts with a covered employee's employer who is
not registered with the Secretary of Labor under section
9(b)(2)(A) shall constitute a separate and distinct offense.
``(D) Revocation.--The Secretary may revoke the
registration of an employer under section 9(b)(2)(A) in any
case where an employer willfully, as determined by the
Department, commits a violation of this section within 3 years
of an earlier violation of such section.''.
SEC. 205. LICENSORS.
(a) Fair Labor Standards Act of 1938.--
(1) In general.--Section 3(d) of the Fair Labor Standards
Act of 1938 (29 U.S.C. 203(d)), as amended by section
204(a)(1), is further amended by adding at the end the
following:
``(9) Licensors.--An entity licensing its brand, name, or
other likeness to an employer, or other entity responsible for
the rights and protections of this Act with regard to the
employees of such employer, for consideration shall also be
responsible for the rights and protections of this Act with
regard to the employees of such employer.''.
(2) Indemnification.--Section 16 of the Fair Labor
Standards Act of 1938, as amended by section 203(a)(2), is
further amended by adding at the end the following:
``(j) Licensees and Licensors.--
``(1) Indemnification by licensor.--An employer or other
entity that is found to be in violation of this Act shall have
the right to indemnification as described in paragraph (2) from
an entity licensing its brand, name, or other likeness to the
employer or other entity, in any case where the violation was--
``(A) at the behest of the licensor;
``(B) at the direction of the licensor;
``(C) pursuant to any policies, agreements, or
contractual obligations emanating from the licensor; or
``(D) due to other direct or indirect control or
pressure from the licensor.
``(2) Process for and type of indemnification.--
Indemnification under paragraph (1)--
``(A) may be sought by a licensee in any court of
competent jurisdiction; and
``(B) shall include a full recovery from the
licensor of all compensatory and punitive damages,
civil monetary penalties, attorney's fees, or other
amounts required to be paid by the licensee as a result
of the violation of this Act.
``(3) Prohibition on waiver.--
``(A) In general.--A licensor shall not require or
otherwise request a licensee to waive the licensee's
right to indemnification under this subsection.
``(B) Penalty.--If a licensor violates subparagraph
(A)--
``(i) any indemnification waiver shall be
null and void; and
``(ii) the licensor shall be subject to a
civil penalty of $100,000.
``(4) Prohibition on retaliation.--
``(A) In general.--A licensor shall not end the
license agreement with, take adverse action in relation
to, or otherwise discriminate against, a licensee for
pursuing indemnification under this subsection.
``(B) Penalty.--A licensor who violates
subparagraph (A) shall be subject to a civil penalty of
$100,000.''.
(b) National Labor Relations Act.--
(1) In general.--Section 2(2) of the National Labor
Relations Act (29 U.S.C. 152(2)), as amended by section
204(a)(2), is further amended by adding at the end the
following:
``(G) Licensors.--An entity licensing its brand, name, or
other likeness to an employer, or other entity responsible for
the rights and protections of this Act with regard to the
employees of such employer, for consideration shall also be
responsible for the rights and protections of this Act with
regard to the employees of such employer.''.
(2) Indemnification.--Section 12 of the National Labor
Relations Act (29 U.S.C. 162), as amended by section 203(b)(2),
is further amended by adding at the end the following:
``(h) Licensees and Licensors.--
``(1) Indemnification by licensor.--An employer or other
entity that is found to be in violation of this Act shall have
the right to indemnification as described in paragraph (2) from
an entity licensing its brand, name, or other likeness to the
employer or other entity, in any case where the violation was--
``(A) at the behest of the licensor;
``(B) at the direction of the licensor;
``(C) pursuant to any policies, agreements, or
contractual obligations emanating from the licensor; or
``(D) due to other direct or indirect control or
pressure from the licensor.
``(2) Process for and type of indemnification.--
Indemnification under paragraph (1)--
``(A) may be sought by a licensee in any court of
competent jurisdiction; and
``(B) shall include a full recovery from the
licensor of all compensatory and punitive damages,
civil monetary penalties, attorney's fees, or other
amounts required to be paid by the licensee as a result
of the violation of this Act.
``(3) Prohibition on waiver.--
``(A) In general.--A licensor shall not require or
otherwise request a licensee to waive the licensee's
right to indemnification under this subsection.
``(B) Penalty.--If a licensor violates subparagraph
(A)--
``(i) any indemnification waiver shall be
null and void; and
``(ii) the licensor shall be subject to a
civil penalty of $100,000.
``(4) Prohibition on retaliation.--
``(A) In general.--A licensor shall not end the
license agreement with, take adverse action in relation
to, or otherwise discriminate against, a licensee for
pursuing indemnification under this subsection.
``(B) Penalty.--A licensor who violates
subparagraph (A) shall be subject to a civil penalty of
$100,000.''.
(c) Occupational Safety and Health Act of 1970.--
(1) In general.--Section 3(5) of the Occupational Safety
and Health Act of 1970 (29 U.S.C. 652(5)), as amended by
section 204(a)(3), is further amended by adding at the end the
following:
``(H) Licensors.--An entity licensing its brand,
name, or other likeness to an employer, or other entity
responsible for the rights and protections of this Act
with regard to the employees of an employer, or other
entity responsible for the rights and protections of
this Act with regard to the employees of such employer,
for consideration shall also be responsible for the
rights and protections of this Act with regard to the
employees of such employer.''.
(2) Indemnification.--Section 17 of the Occupational Safety
and Health Act of 1970 (29 U.S.C. 666), as amended by section
203(c)(2), is further amended by adding at the end the
following:
``(p) Licensees and Licensors.--
``(1) Indemnification by licensor.--An employer or other
entity that is found to be in violation of this Act shall have
the right to indemnification as described in paragraph (2) from
an entity licensing its brand, name, or other likeness to the
employer or other entity, in any case where the violation was--
``(A) at the behest of the licensor;
``(B) at the direction of the licensor;
``(C) pursuant to any policies, agreements, or
contractual obligations emanating from the licensor; or
``(D) due to other direct or indirect control or
pressure from the licensor.
``(2) Process for and type of indemnification.--
Indemnification under paragraph (1)--
``(A) may be sought by a licensee in any court of
competent jurisdiction; and
``(B) shall include a full recovery from the
licensor of all compensatory and punitive damages,
civil monetary penalties, attorney's fees, or other
amounts required to be paid by the licensee as a result
of the violation of this Act.
``(3) Prohibition on waiver.--
``(A) In general.--A licensor shall not require or
otherwise request a licensee to waive the licensee's
right to indemnification under this subsection.
``(B) Penalty.--If a licensor violates subparagraph
(A)--
``(i) any indemnification waiver shall be
null and void; and
``(ii) the licensor shall be subject to a
civil penalty of $100,000.
``(4) Prohibition on retaliation.--
``(A) In general.--A licensor shall not end the
license agreement with, take adverse action in relation
to, or otherwise discriminate against, a licensee for
pursuing indemnification under this subsection.
``(B) Penalty.--A licensor who violates
subparagraph (A) shall be subject to a civil penalty of
$100,000.''.
(d) Federal Mine Safety and Health Act of 1977.--
(1) In general.--Section 4B of the Federal Mine Safety and
Health Act of 1977, as amended by section 204(a)(4), is further
amended by adding at the end the following:
``(e) Licensors.--An entity licensing its brand, name, or other
likeness to an operator of a coal or other mine, or other entity
responsible for the rights and protections of this Act with regard to
the miners employed by such operator, for consideration shall also be
responsible for the rights and protections of this Act with regard to
the miners employed by such operator.''.
(2) Indemnification.--Section 118 of the Federal Mine
Safety and Health Act of 1977, as amended by section 203(d)(2),
is further amended by adding at the end the following:
``(d) Licensees and Licensors.--
``(1) Indemnification by licensor.--An operator or other
entity that is found to be in violation of this Act shall have
the right to indemnification as described in paragraph (2) from
an entity licensing its brand, name, or other likeness to the
operator or other entity, in any case where the violation was--
``(A) at the behest of the licensor;
``(B) at the direction of the licensor;
``(C) pursuant to any policies, agreements, or
contractual obligations emanating from the licensor; or
``(D) due to other direct or indirect control or
pressure from the licensor.
``(2) Process for and type of indemnification.--
Indemnification under paragraph (1)--
``(A) may be sought by a licensee in any court of
competent jurisdiction; and
``(B) shall include a full recovery from the
licensor of all compensatory and punitive damages,
civil monetary penalties, attorney's fees, or other
amounts required to be paid by the licensee as a result
of the violation of this Act.
``(3) Prohibition on waiver.--
``(A) In general.--A licensor shall not require or
otherwise request a licensee to waive the licensee's
right to indemnification under this subsection.
``(B) Penalty.--If a licensor violates subparagraph
(A)--
``(i) any indemnification waiver shall be
null and void; and
``(ii) the licensor shall be subject to a
civil penalty of $100,000.
``(4) Prohibition on retaliation.--
``(A) In general.--A licensor shall not end the
license agreement with, take adverse action in relation
to, or otherwise discriminate against, a licensee for
pursuing indemnification under this subsection.
``(B) Penalty.--A licensor who violates
subparagraph (A) shall be subject to a civil penalty of
$100,000.''.
(e) Migrant and Seasonal Agricultural Worker Protection Act.--
(1) In general.--Section 5(c) of the Migrant and Seasonal
Agricultural Worker Protection Act, as amended by section
204(a)(5), is further amended by adding at the end the
following:
``(6) Licensors.--An entity licensing its brand, name, or
other likeness to a farm labor contractor, agricultural
employer, or agricultural association, or other entity
responsible for the rights and protections of this Act with
regard to the migrant agricultural workers or seasonal
agricultural workers of the farm labor contractor, agricultural
employer, or agricultural association, for consideration shall
also be responsible for the rights and protections of this Act
with regard to such migrant agricultural workers and seasonal
agricultural workers.''.
(2) Indemnification.--Section 505 of the Migrant and
Seasonal Agricultural Worker Protection Act, as amended by
section 203(e)(2), is further amended by adding at the end the
following:
``(d) Licensees and Licensors.--
``(1) Indemnification by licensor.--A farm labor
contractor, agricultural employer, agricultural association, or
other entity that is found to be in violation of this Act shall
have the right to indemnification as described in paragraph (2)
from an entity licensing its brand, name, or other likeness to
the farm labor contractor, agricultural employer, agricultural
association, or other entity, in any case where the violation
was--
``(A) at the behest of the licensor;
``(B) at the direction of the licensor;
``(C) pursuant to any policies, agreements, or
contractual obligations emanating from the licensor; or
``(D) due to other direct or indirect control or
pressure from the licensor.
``(2) Process for and type of indemnification.--
Indemnification under paragraph (1)--
``(A) may be sought by a licensee in any court of
competent jurisdiction; and
``(B) shall include a full recovery from the
licensor of all compensatory and punitive damages,
civil monetary penalties, attorney's fees, or other
amounts required to be paid by the licensee as a result
of the violation of this Act.
``(3) Prohibition on waiver.--
``(A) In general.--A licensor shall not require or
otherwise request a licensee to waive the licensee's
right to indemnification under this subsection.
``(B) Penalty.--If a licensor violates subparagraph
(A)--
``(i) any indemnification waiver shall be
null and void; and
``(ii) the licensor shall be subject to a
civil penalty of $100,000.
``(4) Prohibition on retaliation.--
``(A) In general.--A licensor shall not end the
license agreement with, take adverse action in relation
to, or otherwise discriminate against, a licensee for
pursuing indemnification under this subsection.
``(B) Penalty.--A licensor who violates
subparagraph (A) shall be subject to a civil penalty of
$100,000.''.
(f) Davis-Bacon Act.--
(1) In general.--Section 3144b of title 40, United States
Code, as amended by section 204(a)(6), is further amended by
adding at the end the following:
``(e) Licensors.--An entity licensing its brand, name, or other
likeness to a contractor or subcontractor, or other entity responsible
for the rights and protections of this subchapter with regard to the
laborers or mechanics of such contractor or subcontractor, for
consideration shall also be responsible for the rights and protections
of this subchapter with regard to such laborers or mechanics.''.
(2) Indemnification.--Section 3144c of title 40, United
States Code, as amended by section 203(f)(2), is further
amended by adding at the end the following:
``(g) Licensees and Licensors.--
``(1) Indemnification by licensor.--A contractor,
subcontractor, or other entity that is found to be in violation
of this subchapter shall have the right to indemnification as
described in paragraph (2) from an entity licensing its brand,
name, or other likeness to the employer or other entity, in any
case where the violation was--
``(A) at the behest of the licensor;
``(B) at the direction of the licensor;
``(C) pursuant to any policies, agreements, or
contractual obligations emanating from the licensor; or
``(D) due to other direct or indirect control or
pressure from the licensor.
``(2) Process for and type of indemnification.--
Indemnification under paragraph (1)--
``(A) may be sought by a licensee in any court of
competent jurisdiction; and
``(B) shall include a full recovery from the
licensor of all compensatory and punitive damages,
civil monetary penalties, attorney's fees, or other
amounts required to be paid by the licensee as a result
of the violation of this subchapter.
``(3) Prohibition on waiver.--
``(A) In general.--A licensor shall not require or
otherwise request a licensee to waive the licensee's
right to indemnification under this subsection.
``(B) Penalty.--If a licensor violates subparagraph
(A)--
``(i) any indemnification waiver shall be
null and void; and
``(ii) the licensor shall be subject to a
civil penalty of $100,000.
``(4) Prohibition on retaliation.--
``(A) In general.--A licensor shall not end the
license agreement with, take adverse action in relation
to, or otherwise discriminate against, a licensee for
pursuing indemnification under this subsection.
``(B) Penalty.--A licensor who violates
subparagraph (A) shall be subject to a civil penalty of
$100,000.''.
(g) McNamara-O'Hara Service Contract Act.--
(1) In general.--Section 6701a of title 41, United States
Code, as amended by section 204(a)(7), is further amended by
adding at the end the following:
``(e) Licensors.--An entity licensing its brand, name, or other
likeness to a contractor, or other entity responsible for the rights
and protections of this chapter with regard to the service employees of
such contractor, for consideration shall also be responsible for the
rights and protections of this chapter with regard to such service
employees.''.
(2) Indemnification.--Section 6707 of title 41, United
States Code, as amended by section 203(g)(2), is further
amended by adding at the end the following:
``(d) Licensees and Licensors.--
``(1) Indemnification by licensor.--A contractor,
subcontractor, or other entity that is found to be in violation
of this chapter shall have the right to indemnification as
described in paragraph (2) from an entity licensing its brand,
name, or other likeness to the employer or other entity, in any
case where the violation was--
``(A) at the behest of the licensor;
``(B) at the direction of the licensor;
``(C) pursuant to any policies, agreements, or
contractual obligations emanating from the licensor; or
``(D) due to other direct or indirect control or
pressure from the licensor.
``(2) Process for and type of indemnification.--
Indemnification under paragraph (1)--
``(A) may be sought by a licensee in any court of
competent jurisdiction; and
``(B) shall include a full recovery from the
licensor of all compensatory and punitive damages,
civil monetary penalties, attorney's fees, or other
amounts required to be paid by the licensee as a result
of the violation of this chapter.
``(3) Prohibition on waiver.--
``(A) In general.--A licensor shall not require or
otherwise request a licensee to waive the licensee's
right to indemnification under this subsection.
``(B) Penalty.--If a licensor violates subparagraph
(A)--
``(i) any indemnification waiver shall be
null and void; and
``(ii) the licensor shall be subject to a
civil penalty of $100,000.
``(4) Prohibition on retaliation.--
``(A) In general.--A licensor shall not end the
license agreement with, take adverse action in relation
to, or otherwise discriminate against, a licensee for
pursuing indemnification under this subsection.
``(B) Penalty.--A licensor who violates
subparagraph (A) shall be subject to a civil penalty of
$100,000.''.
(h) Walsh-Healey Public Contracts Act.--
(1) In general.--Section 6501b of title 41, United States
Code, as amended by section 204(a)(8), is further amended by
adding at the end the following:
``(e) Licensors.--An entity licensing its brand, name, or other
likeness to a contractor, or other entity responsible for the rights
and protections of this chapter with regard to individuals employed in
the manufacture or furnishing of materials, supplies, articles, or
equipment under a contract to which this chapter applies by such
contractor, for consideration shall also be responsible for the rights
and protections of this chapter with regard to such individuals.''.
(2) Indemnification.--Section 6506b of title 41, United
States Code, as amended by section 203(h)(2), is further
amended by adding at the end the following:
``(g) Licensees and Licensors.--
``(1) Indemnification by licensor.--A contractor,
subcontractor, or other entity that is found to be in violation
of this chapter shall have the right to indemnification as
described in paragraph (2) from an entity licensing its brand,
name, or other likeness to the employer or other entity, in any
case where the violation was--
``(A) at the behest of the licensor;
``(B) at the direction of the licensor;
``(C) pursuant to any policies, agreements, or
contractual obligations emanating from the licensor; or
``(D) due to other direct or indirect control or
pressure from the licensor.
``(2) Process for and type of indemnification.--
Indemnification under paragraph (1)--
``(A) may be sought by a licensee in any court of
competent jurisdiction; and
``(B) shall include a full recovery from the
licensor of all compensatory and punitive damages,
civil monetary penalties, attorney's fees, or other
amounts required to be paid by the licensee as a result
of the violation of this chapter.
``(3) Prohibition on waiver.--
``(A) In general.--A licensor shall not require or
otherwise request a licensee to waive the licensee's
right to indemnification under this subsection.
``(B) Penalty.--If a licensor violates subparagraph
(A)--
``(i) any indemnification waiver shall be
null and void; and
``(ii) the licensor shall be subject to a
civil penalty of $100,000.
``(4) Prohibition on retaliation.--
``(A) In general.--A licensor shall not end the
license agreement with, take adverse action in relation
to, or otherwise discriminate against, a licensee for
pursuing indemnification under this subsection.
``(B) Penalty.--A licensor who violates
subparagraph (A) shall be subject to a civil penalty of
$100,000.''.
(i) Family and Medical Leave Act of 1993.--
(1) In general.--Section 101(4) of the Family and Medical
Leave Act of 1993 (29 U.S.C. 2611), as amended by section
204(a)(9), is further amended by adding at the end the
following:
``(H) Licensors.--An entity licensing its brand,
name, or other likeness to an employer for
consideration shall also be responsible for the rights
and protections of this Act with regard to the
employees of such employer.''.
(2) Indemnification.--Section 107 of the Family and Medical
Leave Act of 1993 (29 U.S.C. 2617), as amended by section
203(i)(2), by inserting after subsection (g) the following:
``(h) Licensees and Licensors.--
``(1) Indemnification by licensor.--An employer or other
entity that is found to be in violation of this Act shall have
the right to indemnification as described in paragraph (2) from
an entity licensing its brand, name, or other likeness to the
employer or other entity, in any case where the violation was--
``(A) at the behest of the licensor;
``(B) at the direction of the licensor;
``(C) pursuant to any policies, agreements, or
contractual obligations emanating from the licensor; or
``(D) due to other direct or indirect control or
pressure from the licensor.
``(2) Process for and type of indemnification.--
Indemnification under paragraph (1)--
``(A) may be sought by a licensee in any court of
competent jurisdiction; and
``(B) shall include a full recovery from the
licensor of all compensatory and punitive damages,
civil monetary penalties, attorney's fees, or other
amounts required to be paid by the licensee as a result
of the violation of this Act.
``(3) Prohibition on waiver.--
``(A) In general.--A licensor shall not require or
otherwise request a licensee to waive the licensee's
right to indemnification under this subsection.
``(B) Penalty.--If a licensor violates subparagraph
(A)--
``(i) any indemnification waiver shall be
null and void; and
``(ii) the licensor shall be subject to a
civil penalty of $100,000.
``(4) Prohibition on retaliation.--
``(A) In general.--A licensor shall not end the
license agreement with, take adverse action in relation
to, or otherwise discriminate against, a licensee for
pursuing indemnification under this subsection.
``(B) Penalty.--A licensor who violates
subparagraph (A) shall be subject to a civil penalty of
$100,000.''.
(j) Federal Unemployment Tax Act (FUTA).--
(1) In general.--Section 3306(w) of the Internal Revenue
Code of 1986, as amended by section 204(a)(10), is amended by
adding at the end the following new paragraphs:
``(8) Paragraph (9) of section 3(d) of such Act.
``(9) Subsection (j) of section 16 of such Act.''.
(2) Effective date.--The amendment made by paragraph (1)
shall apply to services rendered on or after January 1, 2022.
SEC. 206. LABOR CONTRACTORS.
(a) Fair Labor Standards Act of 1938.--Section 3(d) of the Fair
Labor Standards Act of 1938 (29 U.S.C. 203(d)), as amended by section
205(a)(1), is further amended by adding at the end the following:
``(10) Labor contractors.--An employer shall also be
responsible for the rights and protections of this Act with
regard to an employee of a labor contractor, or any labor
subcontractors under a labor contractor, in any case where such
labor contractor or labor subcontractor is responsible for the
rights and protections of this Act with respect to the
employee.''.
(b) National Labor Relations Act.--
(1) In general.--Section 2(2) of the National Labor
Relations Act (29 U.S.C. 152(2)), as amended by section 205(b),
is further amended by adding at the end the following:
``(H) Labor contractors.--An employer shall also be
responsible for the rights and protections of this Act with
regard to an employee of a labor contractor, or any labor
subcontractors under a labor contractor, in any case where such
labor contractor or labor subcontractor is responsible for the
rights and protections of this Act with respect to the
employee.''.
(2) Unfair labor practice.--Section 8(a) of the National
Labor Relations Act (29 U.S.C. 158(a)), as amended by section
102(b)(3)(B), is further amended by adding at the end the
following:
``(8) to reject contractors in whole or in part because the
contractors have workforces represented by labor organizations,
including--
``(A) when the employer initially solicits bids for
a contract for an as-yet-unchosen contractor to provide
a good or service to the employer, by rejecting any
contractor in whole or in part because the contractor's
workforce is represented by a labor organization; or
``(B) when an employer has an existing contract
with a contractor and the contractor's employees are
considering to organize or have chosen to organize in
accordance with the rights provided under section 7,
by--
``(i) ending the employer's existing
contract with the contractor;
``(ii) not renewing the employer's existing
contract with the contractor if the contract is
set to expire; or
``(iii) threatening to end or not renew the
employer's existing contract with the
contractor,
in whole or in part because of the labor organization
consideration or representation described in the matter
preceding clause (i).''.
(c) Occupational Safety and Health Act of 1970.--Section 3(5) of
the Occupational Safety and Health Act of 1970 (29 U.S.C. 652(5)), as
amended by section 205(c)(1), is further amended by adding at the end
the following:
``(I) Labor contractors.--An employer shall also be
responsible for the rights and protections of this Act
with regard to an employee of a labor contractor, or
any labor subcontractors under a labor contractor, in
any case where such labor contractor or labor
subcontractor is responsible for the rights and
protections of this Act with respect to the
employee.''.
(d) Federal Mine Safety and Health Act of 1977.--Section 4B of the
Federal Mine Safety and Health Act of 1977, as amended by section
205(d), is further amended by adding at the end the following:
``(f) Labor Contractors.--An employer shall also be responsible for
the rights and protections of this Act with regard to a miner of a coal
or other mine employed by a labor contractor, or any labor
subcontractors under a labor contractor, in any case where such labor
contractor or labor subcontractor is responsible for the rights and
protections of this Act with respect to the miner.''.
(e) Migrant and Seasonal Agricultural Worker Protection Act.--
Section 4(c) of the Migrant and Seasonal Agricultural Worker Protection
Act, as amended by section 205(e)(1), is further amended by adding at
the end the following:
``(7) Labor contractors.--A farm labor contractor,
agricultural employer, or agricultural association shall also
be responsible for the rights and protections of this Act with
regard to a migrant agricultural worker or seasonal
agricultural worker of a labor contractor, or any labor
subcontractors under a labor contractor, in any case where such
labor contractor or labor subcontractor is responsible for the
rights and protections of this Act with respect to the migrant
agricultural worker or seasonal agricultural worker.''.
(f) Davis-Bacon Act.--Section 3144b of title 40, United States
Code, as amended by section 205(f)(1), is further amended by adding at
the end the following:
``(f) Contractors' Liability for Labor Subcontractors.--An employer
who is a contractor subject to the requirements of this subchapter
shall also be responsible for the rights and protections of this
subchapter with regard to an employee of any labor subcontractor of the
contractor, or any labor subcontractors under a labor subcontractor, in
any case where--
``(1) the employee is performing work under a contract to
which this subchapter applies; and
``(2) such labor subcontractor, or labor subcontractor of a
labor subcontractor, is responsible for the rights and
protections of this subchapter with respect to a laborer or
mechanic.''.
(g) McNamara-O'Hara Service Contract Act.--Section 6701a of title
41, United States Code, as amended by section 205(g), is further
amended by adding at the end the following:
``(f) Contractors' Liability for Labor Subcontractors.--An employer
who is a contractor subject to the requirements of this chapter shall
also be responsible for the rights and protections of this chapter with
regard to an employee of any labor subcontractor of the contractor, or
any labor subcontractors under a labor subcontractor, in any case
where--
``(1) the employee is performing work under a contract to
which this chapter applies; and
``(2) such labor subcontractor, or labor subcontractor of a
labor subcontractor, is responsible for the rights and
protections of this chapter with respect to a service
employee.''.
(h) Walsh-Healey Public Contracts Act.--Section 6501b of title 41,
United States Code, as amended by section 205(h), is further amended by
adding at the end the following:
``(f) Contractors' Liability for Labor Subcontractors.--An employer
who is a contractor subject to the requirements of this chapter shall
also be responsible for the rights and protections of this chapter with
regard to an employee of any labor subcontractor of the contractor, or
any labor subcontractors under a labor subcontractor, in any case
where--
``(1) the employee is employed in the manufacture or
furnishing of materials, supplies, articles, or equipment under
a contract to which this chapter applies; and
``(2) such labor subcontractor, or labor subcontractor of a
labor subcontractor, is responsible for the rights and
protections of this chapter with respect to the employee.''.
(i) Family and Medical Leave Act of 1993.--Section 101(4) of the
Family and Medical Leave Act of 1993 (29 U.S.C. 2611), as amended by
section 205(i), is further amended by adding at the end the following:
``(I) Labor contractors.--An employer shall also be
responsible for the rights and protections of this Act
with regard to an employee of a labor contractor, or
any labor subcontractors under a labor contractor, in
any case where such labor contractor or labor
subcontractor is responsible for the rights and
protections of this Act with respect to the
employee.''.
(j) Federal Unemployment Tax Act (FUTA).--
(1) In general.--Section 3306(w) of the Internal Revenue
Code of 1986, as amended by section 205(j), is amended by
adding at the end the following new paragraph:
``(10) Paragraph (10) of section 3(d) of such Act.''.
(2) Effective date.--The amendment made by paragraph (1)
shall apply to services rendered on or after January 1, 2022.
SEC. 207. SUPPLY CHAIN RESPONSIBILITY PLAN.
(a) Fair Labor Standards Act of 1938.--
(1) Supply chain responsibility plan.--Section 11 of the
Fair Labor Standards Act of 1938 (29 U.S.C. 211) is amended by
adding at the end the following:
``(e) Supply Chain Responsibility Plan.--
``(1) Definitions.--In this subsection:
``(A) Covered employer.--The term `covered
employer' means an employer that employs 100 or more
employees.
``(B) Covered laws.--The term `covered laws' means
all of the following:
``(i) This Act.
``(ii) The National Labor Relations Act.
``(iii) The Occupational Safety and Health
Act of 1970.
``(iv) The Federal Mine Safety and Health
Act of 1977.
``(v) The Migrant and Seasonal Agricultural
Worker Protection Act.
``(vi) Subchapter IV of chapter 31 of title
40, United States Code (commonly known as the
`Davis-Bacon Act').
``(vii) Chapter 67 of title 41, United
States Code (commonly known as the `McNamara-
O'Hara Service Contract Act').
``(viii) Chapter 65 of title 41, United
States Code (commonly known as the `Walsh-
Healey Public Contracts Act of 1936').
``(ix) The Family and Medical Leave Act of
1993.
``(x) Violations of State law required
under section 3304 of the Internal Revenue Code
of 1986.
``(xi) The applicable labor laws of any
country in which an employer that is part of a
covered employer's supply chain operates, with
respect to employees employed in such country.
``(2) Development of plan.--Each covered employer shall
develop and carry out a supply chain responsibility plan
described in paragraph (3) that describes how the employer will
attempt to ensure that the employer's primary supply chain does
not include any employer that regularly violates--
``(A) an individual covered law; or
``(B) the covered laws, when considered as a whole.
``(3) Contents.--Each supply chain responsibility plan
shall include, at a minimum--
``(A) an assessment of--
``(i) the violations under each covered law
by each employer with more than 19 employees in
the covered employer's supply chain; and
``(ii) the violations under each covered
law by each employer that provides a large
volume or dollar amount of the covered
employer's supply chain;
``(B) a plan for--
``(i) removing from the covered employer's
supply chain each employer described in
subparagraph (A) that regularly violates--
``(I) an individual covered law; or
``(II) the covered laws, when
considered as a whole; or
``(ii) if clause (i) is not possible with
respect to a particular employer described in
subparagraph (A) due to an extremely limited
number of employers that could fulfill specific
portions of the covered employer's supply
chain, utilizing the leverage that the covered
employer has as a purchaser to pressure the
particular employer to improve compliance with
the covered laws;
``(C) a list of the organizations that the covered
employer has identified to assist the covered employer
in this process, including workers' rights advocates;
and
``(D) any other information the Secretary
determines necessary.
``(4) Submission.--Each covered employer shall annually
submit the supply chain responsibility plan to the Secretary
and shall post the most recent plan publicly on the covered
employer's website.''.
(2) Penalties.--Section 16(e) of the Fair Labor Standards
Act of 1938 (29 U.S.C. 216(e)), as amended by section
204(c)(2)(B), is further amended by adding at the end the
following:
``(10) Penalties for violations regarding supply chain
responsibility plans.--Any person who violates section 11(e)(3)
by not submitting or posting a complete supply chain
responsibility plan each year shall be subject to a civil
penalty of $50,000 for each month of noncompliance.''.
(b) National Labor Relations Act.--
(1) Supply chain responsibility plan.--Section 8 of the
National Labor Relations Act (29 U.S.C. 158), as amended by
section 102(b)(5), is further amended by adding at the end the
following:
``(i) Supply Chain Responsibility Plan.--It shall be an unfair
labor practice for an employer who is a covered employer, as defined in
section 11(e)(1) of the Fair Labor Standards Act of 1938 (29 U.S.C.
211(e)(1)), to fail to annually--
``(1) submit, as part of the covered employer's supply
chain responsibility plan under section 11(e) of such Act, the
information required under such Act that relates to this Act;
and
``(2) include such information in the plan posted publicly
on the covered employer's website.''.
(2) Penalties.--Section 12 of the National Labor Relations
Act (29 U.S.C. 162), as amended by section 102(b)(7)(B), is
further amended by inserting after subsection (c) the
following:
``(d) Civil Penalty for Failure To Submit a Complete Supply Chain
Responsibility Plan.--Any person who violates section 8(i) shall be
subject to a civil penalty of $50,000 for each month of
noncompliance.''.
(c) Occupational Safety and Health Act of 1970.--
(1) Supply chain responsibility plan.--Section 5 of the
Occupational Safety and Health Act of 1970 (29 U.S.C. 654) is
amended by adding at the end the following:
``(c) Supply Chain Responsibility Plan.--An employer who is a
covered employer, as defined in section 11(e)(1) of the Fair Labor
Standards Act of 1938 (29 U.S.C. 211(e)(1)), shall annually--
``(1) submit, as part of the employer's supply chain
responsibility plan under section 11(e) of such Act, the
information required under such section that relates to this
Act; and
``(2) include such information in the plan posted publicly
on the employer's website.''.
(2) Penalties.--Section 17 of the Occupational Safety and
Health Act of 1970 (29 U.S.C. 666), as amended by section
205(c)(2), is further amended by inserting after subsection (k)
the following:
``(l) Penalties for Violations Regarding Supply Chain
Responsibility Plans.--Any person who violates section 5(c) shall be
subject to a civil penalty of $50,000 for each month of
noncompliance.''.
(d) Federal Mine Safety and Health Act of 1977.--
(1) Supply chain responsibility plan.--Section 109 of the
Federal Mine Safety and Health Act of 1977 (30 U.S.C. 819) is
amended--
(A) in the section heading, by inserting ``; supply
chain responsibility plans'' after ``decisions''; and
(B) by adding at the end the following:
``(e) Supply Chain Responsibility Plans.--Each operator that is a
covered employer, as defined in section 11(e)(1) of the Fair Labor
Standards Act of 1938 (29 U.S.C. 211(e)(1)), shall annually--
``(1) submit, as part of the operator's supply chain
responsibility plan under section 11(e) of such Act, the
information required under such section that relates to this
Act; and
``(2) include such information in the plan posted publicly
on the operator's website.''.
(2) Penalties.--Section 110 of the Federal Mine Safety and
Health Act of 1977 (30 U.S.C. 820), as amended by section
102(d)(6)(B), is further amended by inserting after subsection
(j) the following:
``(k) Civil Penalty for Failure To Submit a Supply Chain
Responsibility Plan.--Any operator who violates section 109(e) shall be
subject to a civil penalty of $50,000 for each month of
noncompliance.''.
(e) Migrant and Seasonal Agricultural Worker Protection Act.--
(1) Supply chain responsibility plan.--Title IV of the
Migrant and Seasonal Agricultural Worker Protection Act (29
U.S.C. 1841 et seq.), as amended by section 102(e)(3)), is
further amended by adding at the end the following:
``SEC. 406. SUPPLY CHAIN RESPONSIBILITY PLAN.
``(a) Definition of Responsible Entity.--In this section, the term
`responsible entity' means a farm labor contractor, agricultural
employer, or agricultural association, that is a covered employer, as
defined in section 11(e)(1) of the Fair Labor Standards Act of 1938 (29
U.S.C. 211(e)(1)).
``(b) Supply Chain Responsibility Plans.--Each responsible entity
shall annually--
``(1) submit, as part of the responsible entity's supply
chain responsibility plan under section 11(e) of such Act, the
information required under such section that relates to this
Act; and
``(2) include such information in the plan posted publicly
on the responsible entity's website.''.
(2) Penalties.--Section 503(a) of the Migrant and Seasonal
Agricultural Worker Protection Act (29 U.S.C. 1853(a)), as
amended by section 102(e)(6)(B), is further amended by adding
at the end the following:
``(5) Penalties for violations regarding supply chain
responsibility plans.--Any person who violates section 406(b)
shall be subject to a civil penalty of $50,000 for each month
of noncompliance.''.
(f) Davis-Bacon Act.--
(1) Supply chain responsibility plan.--Subchapter IV of
chapter 31 of title 40, United States Code, as amended by this
Act, is further amended by inserting after section 3143 the
following:
``Sec. 3143a. Supply chain responsibility plan
``(a) Covered Contractor.--In this section, the term `covered
contractor' means a contractor or subcontractor--
``(1) for a contract subject to the requirements of this
subchapter; and
``(2) that is a covered employer, as defined in section
11(e)(1) of the Fair Labor Standards Act of 1938 (29 U.S.C.
211(e)(1)).
``(b) In General.--Each covered contractor shall annually--
``(1) submit, as part of the covered contractor's supply
chain responsibility plan under section 11(e) of such Act, the
information required under such section that relates to this
subchapter; and
``(2) include such information in the plan posted publicly
on the covered contractor's website.''.
(2) Penalties.--Section 3144c of title 40, United States
Code, as amended by section 204(f)(2), is further amended by
inserting after subsection (b) the following:
``(c) Penalties for Violations Regarding Supply Chain
Responsibility Plans.--Any person who violates section 3143a of this
title shall be subject to a civil penalty of $50,000 for each month of
noncompliance.''.
(g) McNamara-O'Hara Service Contract Act.--Chapter 67 of title 41,
United States Code, as amended by section 202(b)(7)(A), is further
amended by inserting after section 6704 the following:
``Sec. 6705. Supply chain responsibility plan
``(a) Covered Contractor.--In this section, the term `covered
contractor' means a contractor or subcontractor--
``(1) for a contract subject to the requirements of this
chapter; and
``(2) that is a covered employer, as defined in section
11(e)(1) of the Fair Labor Standards Act of 1938 (29 U.S.C.
211(e)(1)).
``(b) In General.--Each covered contractor shall annually--
``(1) submit, as part of the covered contractor's supply
chain responsibility plan under section 11(e) of such Act, the
information required under such section that relates to this
chapter; and
``(2) include such information in the plan posted publicly
on the covered contractor's website.
``(c) Penalties for Violations Regarding Supply Chain
Responsibility Plans.--Any person who violates subsection (b) of this
section shall be subject to a civil penalty of $50,000 for each month
of noncompliance.''.
(h) Walsh-Healey Public Contracts Act of 1936.--
(1) Supply chain responsibility plan.--Chapter 65 of title
41, United States Code, is further amended by inserting after
section 6502 the following:
``Sec. 6502a. Supply chain responsibility plan
``(a) Covered Contractor.--In this section, the term `covered
contractor' means a contractor or subcontractor--
``(1) for a contract subject to the requirements of this
chapter; and
``(2) that is a covered employer, as defined in section
11(e)(1) of the Fair Labor Standards Act of 1938 (29 U.S.C.
211(e)(1)).
``(b) In General.--Each covered contractor shall annually--
``(1) submit, as part of the covered contractor's supply
chain responsibility plan under section 11(e) of such Act, the
information required under such section that relates to this
chapter; and
``(2) include such information in the plan posted publicly
on the covered contractor's website.''.
(2) Penalties.--Section 6506a of title 41, United States
Code, as amended by section 202(c)(8), is further amended by
inserting after subsection (b) the following:
``(c) Penalties for Violations Regarding Supply Chain
Responsibility Plans.--Any person who violates section 6502a shall be
subject to a civil penalty of $50,000 for each month of
noncompliance.''.
(i) Family and Medical Leave Act of 1993.--Section 109 of the
Family and Medical Leave Act of 1993 (29 U.S.C. 2619) is amended--
(1) in the section heading, by inserting ``; supply chain
responsibility plan'' after ``notice'';
(2) by striking ``In General.--Each'' and inserting the
following: ``Notice.--
``(1) In general.--Each'';
(3) by redesignating subsection (b) as paragraph (2) of
subsection (a), and aligning the margins of such paragraph with
the margins of paragraph (1);
(4) in paragraph (2) (as so redesignated), by striking
``this section'' and inserting ``this subsection''; and
(5) by adding at the end the following:
``(b) Supply Chain Responsibility Plan.--
``(1) In general.--Each employer that is a covered
employer, as defined in section 11(e)(1) of the Fair Labor
Standards Act of 1938 (29 U.S.C. 211(e)(1)), shall annually--
``(A) submit, as part of the employer's supply
chain responsibility plan under section 11(e) of such
Act, the information required under such section that
relates to this Act; and
``(B) include such information in the plan posted
publicly on the employer's website.
``(2) Penalty.--Any person who violates paragraph (1) shall
be subject to a civil penalty of $50,000 for each month of
noncompliance.''.
(j) Federal Unemployment Tax Act (FUTA).--
(1) State law requirement.--Section 3304 of the Internal
Revenue Code of 1986 (relating to approval of State
unemployment compensation laws) is amended--
(A) in subsection (a)--
(i) in paragraph (18), by striking ``and''
at the end;
(ii) by redesignating paragraph (19) as
paragraph (20);
(iii) by inserting after paragraph (18) the
following new paragraph:
``(19) each employer that is a covered employer, as defined
in section 11(e)(1) of the Fair Labor Standards Act of 1938 (29
U.S.C. 211(e)(1)) is required to comply with subsection (h);
and''; and
(iv) by adding at the end the following:
``(h) Supply Chain Responsibility Plans.--Each employer that is a
covered employer, as defined in section 11(e)(1) of the Fair Labor
Standards Act of 1938 (29 U.S.C. 211(e)(1)), shall annually--
``(1) submit, as part of the employer's supply chain
responsibility plan under section 11(e) of such Act, the
information required under such section that relates to this
Act; and
``(2) include such information in the plan posted publicly
on the operator's website.''.
(2) Effective date.--The amendments made by paragraph (1)
shall apply to weeks of unemployment beginning on or after the
earlier of--
(A) the date the State changes its statutes,
regulations, or policies in order to comply with such
amendments; or
(B) January 1, 2022.
SEC. 208. CONFORMING AMENDMENTS.
(a) Davis-Bacon Act.--The table of sections of subchapter IV of
chapter 31 of title 40, United States Code, as amended by section
102(f)(7), is further amended--
(1) by inserting after the item relating to section 3413
the following:
``Sec. 3143a. Supply chain responsibility plan.'';
and
(2) by inserting after the item relating to section 3144a
the following:
``Sec. 3144b. Applicability to multiple employers and related
entities.''.
(b) McNamara-O'Hara Service Contract Act.--Chapter 67 of title 41,
United States Code, is amended--
(1) in the table of sections--
(A) by redesignating the items relating to sections
6705, 6706, and 6707 as the items relating to sections
6706, 6708, and 6709, respectively;
(B) by inserting after the item relating to section
6701 the following:
``Sec. 6701a. Applicability to multiple employers and related
entities.'';
(C) by inserting after the item relating to section
6704 the following:
``Sec. 6705. Supply chain responsibility plan.'';
and
(D) by inserting after the item relating to section
6706 the following:
``Sec. 6707. Civil penalties assessed against owners, directors,
officers, managing agents, and large
shareholders; indemnification.'';
(2) in section 6704(b), by striking ``sections 6705 to
6707(d)'' and inserting ``sections 6706 to 6709(d)''; and
(3) in section 6705(d), by striking ``section 6707(a)-(d)''
and inserting ``section 6709(a)-(d)''.
(c) Walsh-Healey Public Contracts Act.--The table of sections for
chapter 65 of title 41, United States Code, as amended by section
102(g)(7), is further amended--
(1) by inserting after the item relating to section 6501a
the following:
``Sec. 6501b. Applicability to multiple employers and related
entities.'';
and
(2) by inserting after the item relating to section 6502
the following:
``Sec. 6502a. Supply chain responsibility plan.''.
TITLE III--PUBLIC TRANSPARENCY ON WORKERS' RIGHTS VIOLATIONS
SEC. 301. CONSUMER RIGHT TO KNOW ABOUT COMPLIANCE WITH WORKERS' RIGHTS.
(a) In General.--The Fair Labor Standards Act of 1938 (29 U.S.C.
201 et seq.) is amended by inserting after section 18C (29 U.S.C. 218c)
the following:
``SEC. 18D. COMPLIANCE RATINGS.
``(a) Requirement for Posting Notice.--An employer shall post a
notice, provided each calendar year by the Secretary under subsection
(b), of the compliance of the employer with the covered labor laws
during the 3 calendar years preceding the calendar year for which the
notice applies (referred to in this section as the `applicable 3-year
period'). Such notice shall be posted--
``(1) in each location of the employer--
``(A) in a window that is located not less than 5
feet from the main entry way of such location; or
``(B) if such a location does not have a window
located within 5 feet of the main entry way, otherwise
within 5 feet of the main entry way;
``(2) on the official website of the employer, if the
employer has such a website; and
``(3) until the notice is replaced by a revised notice
under this section or a notice for a subsequent calendar year.
``(b) Rating Process.--
``(1) In general.--The Secretary shall establish--
``(A) in accordance with paragraph (2), a process
for annually--
``(i) reviewing the compliance of each
employer with the covered labor laws during the
applicable 3-year period; and
``(ii) providing a rating to each employer
indicating the level of such compliance; and
``(B) a notice for each employer to post in
accordance with subsection (a), which shall--
``(i) be easy for the public to understand;
``(ii) indicate the rating under this
subsection of the employer for the calendar
year; and
``(iii) otherwise be consistent across all
employers.
``(2) Rating.--
``(A) In general.--The notice required under
subsection (a) shall provide a rating of the employer's
compliance with the covered labor laws during the
applicable 3-year period in the form of one of 4
ratings described in subparagraph (B), including--
``(i) a concise summary, in English, of the
compliance of the employer with the covered
labor laws during the applicable 3-year period;
``(ii) an emoji face or cartoon face that
reflects such summary; and
``(iii) a color that reflects such summary.
``(B) Regulations.--The Secretary shall prescribe
through regulations the number, degree, and extent of
violations of the covered labor laws by an employer
during the applicable 3-year period that would qualify
for each of the following 4 ratings:
``(i) A rating of `Excellent'--
``(I) meaning the employer has had
no or few violations of the covered
labor laws during such period; and
``(II) which shall be paired with a
very open-mouthed smiling face and a
deep-green background color.
``(ii) A rating of `Good'--
``(I) meaning the employer has had
some violations of the covered labor
laws during such period, but no major
or extensive violations; and
``(II) which shall be paired with a
wide-smiling face and a light-green
background color.
``(iii) A rating of `Okay'--
``(I) meaning the employer has had,
during such period--
``(aa) multiple violations
of the covered labor laws; or
``(bb) very few major or
extensive violations of the
covered labor laws; and
``(II) which shall be paired with a
flat-mouthed and unenthusiastic face
and a yellow background color.
``(iv) A rating of `Needs Improvement'--
``(I) meaning the employer has had,
during such period--
``(aa) several violations
of the covered labor laws;
``(bb) more than a few
major or extensive violations
of the covered labor laws; or
``(cc) willful or repeated
violations of the covered labor
laws (as defined by the
Secretary with respect to the
covered labor laws); and
``(II) which shall be paired with a
frowning sad face and a gray background
color.
``(3) Review process.--For each review under this section
of the compliance of an employer with the covered labor laws,
including any additional review under subsection (c) or (d),
the Secretary shall review--
``(A) any information the employer provides to the
Secretary with respect to the compliance of the
employer with the covered labor laws for the applicable
3-year period;
``(B) any information provided by any other
individual or organization with respect to such
compliance; and
``(C) any other information the Secretary
determines appropriate for the review.
``(c) Additional Review Upon Claim of Inaccuracy.--
``(1) Request.--If an employer claims that the rating
provided for the employer under this section is inaccurate, the
employer may, not later than 10 days after receiving the notice
under this section, request an additional review by the
Secretary of the employer's compliance with the covered labor
laws during the applicable 3-year period and a revised rating
and notice.
``(2) Determination.--
``(A) In general.--For each request made under
paragraph (1), the Secretary shall conduct an
additional review described in such paragraph and make
a determination of whether to provide a revised rating
and notice.
``(B) Revised rating granted.--If the Secretary
determines that an alteration of the rating is
warranted, the Secretary may provide the employer a
revised rating and notice under this section. The
employer shall, in accordance with subsection (a), post
any such revised notice not later than 5 days after
receiving such revised notice.
``(C) Revised rating denied.--If the Secretary
determines that no alteration of the rating is
warranted--
``(i) the Secretary shall notify the
employer of such determination; and
``(ii) the employer shall, in accordance
with subsection (a), post the notice for which
such review was conducted not later than 5 days
after receiving the notification described in
clause (i).
``(D) Posting of notice during review.--If an
employer claims that a rating under this section for a
calendar year is inaccurate and submits a request under
paragraph (1) for an additional review of such rating,
the employer may refrain from posting the notice under
this section for such calendar year during the period
of such additional review. If an employer so refrains
from posting such notice, the employer shall keep the
notice the employer received under this section for the
previous calendar year (if the employer received such a
notice) posted in accordance with subsection (a) during
the period of such additional review.
``(E) Limitation.--An employer may not request an
additional review of a rating for a calendar year under
this subsection if the employer has previously
requested such an additional review for the rating for
such calendar year.
``(d) Additional Review Upon Remedy of Violations.--
``(1) Request.--If, after receiving a notice under this
section for a calendar year, an employer claims that the
employer has, not later than the end of such calendar year,
fully remedied a violation that affected the rating of the
employer under this section for that year and has reformed the
practices of the employer to ensure future compliance with the
covered labor laws, the employer may request an additional
review of the employer's compliance with the covered labor
laws, during the period beginning on the first day of the
applicable 3-year period and ending on the date on which the
employer submits the request, and a revised rating and notice
under this section for the year.
``(2) Determination.--
``(A) In general.--For each request made under
paragraph (1), the Secretary shall conduct a review
described in such paragraph and make a determination as
to whether to provide a revised rating and notice.
``(B) Revised rating granted.--If the Secretary
determines that the employer has, during the period
beginning on the first day of the applicable 3-year
period and ending on the date on which the employer
submits the request under paragraph (1), fully remedied
the violation with respect to which the employer
submitted the request and has reformed its practices to
ensure future compliance with the covered labor laws--
``(i) the Secretary may provide the
employer with a revised rating and notice under
this section; and
``(ii) if the Secretary provides a revised
rating and notice under clause (i), the
employer shall, in accordance with subsection
(a), post such revised notice not later than 5
days after receiving such revised notice.
``(C) Revised rating denied.--If the Secretary
decides not to grant a revised rating and notice under
this subsection, the Secretary shall notify the
employer of such decision.
``(D) Posting of notice during review.--An employer
shall keep the notice for which a review under this
subsection applies posted in accordance with subsection
(a) until the Secretary, if applicable, provides a
revised rating and notice under subparagraph (B)(i).
``(e) Final Review.--Except for the reviews described in
subsections (c) and (d), there shall be no other reviews, including
judicial review, of the determinations of the Secretary regarding the
rating of an employer under this section.
``(f) Posting in Local Newspaper.--If an employer violates a
provision of this section for more than one month, the employer shall,
in addition to the penalties under section 16(e)(11), publish the
notice provided under this section in the most prominent local
newspaper, as determined by the Secretary.
``(g) Public Website.--
``(1) In general.--The Secretary shall establish and
maintain a public website that includes--
``(A) the most recent rating, and all previous
ratings, under this section for each employer, which
shall be accessible through a simple search feature--
``(i) by employer name, city, or zip code;
and
``(ii) by location on a digital map; and
``(B) an accounting of every violation by each
employer during the 3-year period of the most recent
rating under this section.
``(2) Rankings.--The Secretary may use the website under
this subsection to provide rankings of employers, including by
comparing employers to other employers in the same industry.
``(h) Definition of Covered Labor Laws.--For purposes of this
section, the term `covered labor laws' means, to the extent applicable
to the employer, each of the following:
``(1) This Act.
``(2) The Occupational Safety and Health Act of 1970 (29
U.S.C. 651 et seq.).
``(3) The Federal Mine Safety and Health Act of 1977 (30
U.S.C. 801 et seq.).
``(4) The Migrant and Seasonal Agricultural Worker
Protection Act (29 U.S.C. 1801 et seq.).
``(5) The National Labor Relations Act (29 U.S.C. 151 et
seq.).
``(6) Subchapter IV of chapter 31 of title 40, United
States Code (commonly known as the `Davis-Bacon Act').
``(7) Chapter 67 of title 41, United States Code (commonly
known as the `McNamara-O'Hara Service Contract Act').
``(8) Section 503 of the Rehabilitation Act of 1973 (29
U.S.C. 793).
``(9) The Family and Medical Leave Act of 1993 (29 U.S.C.
2601 et seq.).
``(10) Title VII of the Civil Rights Act of 1964 (42 U.S.C.
2000e et seq.).
``(11) The Americans with Disabilities Act of 1990 (42
U.S.C. 12101 et seq.).
``(12) The Age Discrimination in Employment Act of 1967 (29
U.S.C. 621 et seq.).
``(13) Title II of the Genetic Information
Nondiscrimination Act of 2008 (42 U.S.C. 2000ff et seq.).
``(14) Any State law that the Secretary determines is
equivalent to a law described in any of paragraphs (1) through
(13).''.
(b) Penalties.--Section 16(e) of the Fair Labor Standards Act of
1938 (29 U.S.C. 216(e)), as amended by section 207(a)(2), is further
amended by adding at the end the following:
``(11) Penalties for Violations of Compliance Rating Provisions.--
Any person who violates section 18D shall be subject to a civil penalty
of not more than $1,000 for each employee of the employer working at
the location where the violation occurred and for each day of the
violation.''.
TITLE IV--CREATING BROAD AND INCREASING WORKER PROTECTIONS
SEC. 401. GENERAL STANDARDS FOR APPLYING AND INTERPRETING WORKERS'
RIGHTS.
(a) Fair Labor Standards Act of 1938.--The Fair Labor Standards Act
of 1938 (29 U.S.C. 201 et seq.) is amended by adding at the end the
following:
``SEC. 20. GENERAL STANDARDS FOR APPLYING AND INTERPRETING WORKERS'
RIGHTS.
``(a) Interpretation of Protections and Exemptions.--
``(1) Protections.--All protections afforded employees
under this Act, including as applied through the definitions
under section 3, shall be interpreted expansively in favor of
the employee or individual claiming classification as an
employee.
``(2) Exemptions and exclusions.--
``(A) In general.--All exemptions and exclusions
under this Act, including as applied through the
definitions under section 3, shall be interpreted
narrowly against the employer, or person alleged to be
an employer, and limited in application to those
persons or circumstances plainly and unmistakably
within the language and spirit of the exemption or
exclusion.
``(B) Clear and convincing evidence.--Any person
asserting the applicability of an exemption or
exclusion under this Act shall prove such applicability
by clear and convincing evidence.
``(b) No-Less-Protection Rule.--
``(1) In general.--The Secretary shall not take any action
to reduce a protection afforded an employee under this Act
through any regulation, guidance, opinion, ruling, standard,
order, adjudicative decision, or other interpretation from the
protection provided to the employee through a prior regulation,
guidance, opinion, ruling, standard, order, adjudicative
decision, or other interpretation in effect on the day before
the date of such action, unless such reduction is explicitly
and specifically mandated by an Act of Congress.
``(2) Request for congressional action.--The Secretary may
submit a proposal to Congress for a reduction described in
paragraph (1), but shall not take any action described in such
paragraph without an explicit and specific mandate by an Act of
Congress.
``(3) Standard of deference.--Notwithstanding chapter 7 of
title 5, United States Code, in any action for judicial review
of an agency action under such chapter, a reviewing court shall
defer to a regulation, guidance, opinion, ruling, standard,
order, adjudicative decision, or other interpretation issued by
the agency that increases or otherwise strengthens a protection
afforded to an employee under this Act unless such regulation,
guidance, opinion, ruling, standard, order, adjudicative
decision, or other interpretation is plainly erroneous or
inconsistent with this Act.''.
(b) National Labor Relations Act.--The National Labor Relations Act
(29 U.S.C. 151 et seq.) is amended by adding at the end the following:
``SEC. 20. GENERAL STANDARDS FOR APPLYING AND INTERPRETING WORKERS'
RIGHTS.
``(a) Interpretation of Protections and Exemptions.--
``(1) Protections.--All protections afforded employees
under this Act, including as applied through the definitions
under section 2, shall be interpreted expansively in favor of
the employee or individual claiming classification as an
employee.
``(2) Exemptions and exclusions.--
``(A) In general.--All exemptions and exclusions
under this Act, including as applied through the
definitions under section 2, shall be interpreted
narrowly against the employer, or person alleged to be
an employer, and limited in application to those
persons or circumstances plainly and unmistakably
within the language and spirit of the exemption or
exclusion.
``(B) Clear and convincing evidence.--Any person
asserting the applicability of an exemption or
exclusion under this Act shall prove such applicability
by clear and convincing evidence.
``(b) No-Less-Protection Rule.--
``(1) In general.--The Board, the General Counsel, and any
regional director shall not take any action to reduce a
protection afforded an employee under this Act through any
regulation, guidance, opinion, ruling, standard, order,
adjudicative decision, or other interpretation from the
protection provided to the employee through a prior regulation,
guidance, opinion, ruling, standard, order, adjudicative
decision, or other interpretation in effect on the day before
the date of such action, unless such reduction is explicitly
and specifically mandated by an Act of Congress.
``(2) Request for congressional action.--The Board may
submit a proposal to Congress for a reduction described in
paragraph (1), but the Board, the General Counsel, or any
regional director shall not take any action described in such
paragraph without an explicit and specific mandate by an Act of
Congress.
``(3) Standard of deference.--Notwithstanding chapter 7 of
title 5, United States Code, in any action for judicial review
of an agency action under such chapter, a reviewing court shall
defer to a regulation, guidance, opinion, ruling, standard,
order, adjudicative decision, or other interpretation issued by
the agency that increases or otherwise strengthens a protection
afforded to an employee under this Act unless such regulation,
guidance, opinion, ruling, standard, order, adjudicative
decision, or other interpretation is plainly erroneous or
inconsistent with this Act.''.
(c) Occupational Safety and Health Act of 1970.--The Occupational
Safety and Health Act of 1970 (29 U.S.C. 651 et seq.) is amended by
inserting after section 32 (29 U.S.C. 677) the following:
``SEC. 32A. GENERAL STANDARDS FOR APPLYING AND INTERPRETING WORKERS'
RIGHTS.
``(a) Interpretation of Protections and Exemptions.--
``(1) Protections.--All protections afforded employees
under this Act, including as applied through the definitions
under section 3, shall be interpreted expansively in favor of
the employee or individual claiming classification as an
employee.
``(2) Exemptions and exclusions.--
``(A) In general.--All exemptions and exclusions
under this Act, including as applied through the
definitions under section 3, shall be interpreted
narrowly against the employer, or person alleged to be
an employer, and limited in application to those
persons or circumstances plainly and unmistakably
within the language and spirit of the exemption or
exclusion.
``(B) Clear and convincing evidence.--Any person
asserting the applicability of an exemption or
exclusion under this Act shall prove such applicability
by clear and convincing evidence.
``(b) No-Less-Protection Rule.--
``(1) In general.--The Secretary shall not take any action
to reduce a protection afforded an employee under this Act
through any regulation, guidance, opinion, ruling, standard,
order, adjudicative decision, or other interpretation from the
protection provided to the employee through a prior regulation,
guidance, opinion, ruling, standard, order, adjudicative
decision, or other interpretation in effect on the day before
the date of such action, unless such reduction is explicitly
and specifically mandated by an Act of Congress.
``(2) Request for congressional action.--The Secretary may
submit a proposal to Congress for a reduction described in
paragraph (1), but shall not take any action described in such
paragraph without an explicit and specific mandate by an Act of
Congress.
``(3) Standard of deference.--Notwithstanding chapter 7 of
title 5, United States Code, in any action for judicial review
of an agency action under such chapter, a reviewing court shall
defer to a regulation, guidance, opinion, ruling, standard,
order, adjudicative decision, or other interpretation issued by
the agency that increases or otherwise strengthens a protection
afforded to an employee under this Act unless such regulation,
guidance, opinion, ruling, standard, order, adjudicative
decision, or other interpretation is plainly erroneous or
inconsistent with this Act.''.
(d) Federal Mine Safety and Health Act of 1977.--Title I of the
Federal Mine Safety and Health Act (30 U.S.C. 811 et seq.), as amended
by section 202(b)(4), is further amended by adding at the end the
following:
``SEC. 119. GENERAL STANDARDS FOR APPLYING AND INTERPRETING WORKERS'
RIGHTS.
``(a) Interpretation of Protections and Exemptions.--
``(1) Protections.--All protections afforded under this
Act, including any mandatory health or safety standard, rule,
order, or regulation promulgated pursuant to this Act, to
employees performing labor in a coal or other mine shall be
interpreted expansively in favor of the employee or individual
claiming classification as an employee.
``(2) Exemptions and exclusions.--
``(A) In general.--All exemptions and exclusions
under this Act, including any mandatory health or
safety standard, rule, order, or regulation promulgated
pursuant to this Act, shall be interpreted narrowly
against an operator of a coal or other mine employing
employees performing labor in the coal or other mine,
or person alleged to be such an operator, and limited
in application to those persons or circumstances
plainly and unmistakably within the language and spirit
of the exemption or exclusion.
``(B) Clear and convincing evidence.--Any person
asserting the applicability of an exemption or
exclusion under this Act, including any mandatory
health or safety standard, rule, order, or regulation
promulgated pursuant to this Act, shall prove such
applicability by clear and convincing evidence.
``(b) No-Less-Protection Rule.--
``(1) In general.--The Secretary shall not take any action
to reduce a protection afforded under this Act, including any
mandatory health or safety standard, rule, order, or regulation
promulgated pursuant to this Act, to an employee performing
labor in a coal or other mine through any regulation, guidance,
opinion, ruling, standard, order, adjudicative decision, or
other interpretation from the protection provided to the
employee through a prior regulation, guidance, opinion, ruling,
standard, order, adjudicative decision, or other interpretation
in effect on the day before the date of such action, unless
such reduction is explicitly and specifically mandated by an
Act of Congress.
``(2) Request for congressional action.--The Secretary may
submit a proposal to Congress for a reduction described in
paragraph (1), but shall not take any action described in such
paragraph without an explicit and specific mandate by an Act of
Congress.
``(3) Standard of deference.--Notwithstanding chapter 7 of
title 5, United States Code, in any action for judicial review
of an agency action under such chapter, a reviewing court shall
defer to a regulation, guidance, opinion, ruling, standard,
order, adjudicative decision, or other interpretation issued by
the agency that increases or otherwise strengthens a protection
afforded to an employee performing labor in a coal or other
mine under this Act, including any mandatory health or safety
standard, rule, order, or regulation promulgated pursuant to
this Act, unless such regulation, guidance, opinion, ruling,
standard, order, adjudicative decision, or other interpretation
is plainly erroneous or inconsistent with this Act, including
any mandatory health or safety standard, rule, order, or
regulation promulgated pursuant to this Act.''.
(e) Migrant and Seasonal Agricultural Worker Protection Act.--Part
B of title V of the Migrant and Seasonal Agricultural Worker Protection
Act (29 U.S.C. 1861 et seq.) is amended by adding at the end the
following:
``SEC. 514. GENERAL STANDARDS FOR APPLYING AND INTERPRETING WORKERS'
RIGHTS.
``(a) Interpretation of Protections and Exemptions.--
``(1) Protections.--All protections afforded under this
Act, including any regulation under this Act, to migrant
agricultural workers or seasonal agricultural workers shall be
interpreted expansively in favor of the worker or individual
claiming classification as such a worker.
``(2) Exemptions and exclusion.--
``(A) In general.--All exemptions and exclusions
under this Act, including any regulation under this
Act, shall be interpreted narrowly against an
agricultural employer, agricultural association, or
farm labor contractor employing a migrant agricultural
worker or seasonal agricultural worker, or person
alleged to be such an employer, association, or
contractor, and limited in application to those persons
or circumstances plainly and unmistakably within the
language and spirit of the exemption or exclusion.
``(B) Clear and convincing evidence.--Any person
asserting the applicability of an exemption or
exclusion under this Act, including a regulation under
this Act, shall prove such applicability by clear and
convincing evidence.
``(b) No-Less-Protection Rule.--
``(1) In general.--The Secretary shall not take any action
to reduce a protection afforded under this Act, including a
regulation under this Act, to a migrant agricultural worker or
a seasonal agricultural worker through any regulation,
guidance, opinion, ruling, standard, order, adjudicative
decision, or other interpretation from the protection provided
to the worker through a prior regulation, guidance, opinion,
ruling, standard, order, adjudicative decision, or other
interpretation in effect on the day before the date of such
action, unless such reduction is explicitly and specifically
mandated by an Act of Congress.
``(2) Request for congressional action.--The Secretary may
submit a proposal to Congress for a reduction described in
paragraph (1), but shall not take any action described in such
paragraph without an explicit and specific mandate by an Act of
Congress.
``(3) Standard of deference.--Notwithstanding chapter 7 of
title 5, United States Code, in any action for judicial review
of an agency action under such chapter, a reviewing court shall
defer to a regulation, guidance, opinion, ruling, standard,
order, adjudicative decision, or other interpretation issued by
the agency that increases or otherwise strengthens a protection
afforded under this Act, including a regulation under this Act,
to a migrant agricultural worker or seasonal agricultural
worker unless such regulation, guidance, opinion, ruling,
standard, order, adjudicative decision, or other interpretation
is plainly erroneous or inconsistent with this Act, including a
regulation under this Act.''.
(f) Davis-Bacon Act.--
(1) In general.--Subchapter IV of chapter 31, United States
Code, is amended by adding at the end the following:
``SEC. 3149. GENERAL STANDARDS FOR APPLYING AND INTERPRETING WORKERS'
RIGHTS.
``(a) Interpretation of Protections and Exemptions.--
``(1) Protections.--All protections afforded under this
subchapter to laborers and mechanics who are employees
performing labor under a contract or subcontract to which this
subchapter applies shall be interpreted expansively in favor of
such laborer or mechanic or individual claiming classification
as such a laborer or mechanic.
``(2) Exemptions and exclusions.--
``(A) In general.--All exemptions and exclusions
under this subchapter shall be interpreted narrowly
against a contractor or subcontractor of a contract to
which this subchapter applies, or person alleged to be
such a contractor or subcontractor, and limited in
application to those persons or circumstances plainly
and unmistakably within the language and spirit of the
exemption or exclusion.
``(B) Clear and convincing evidence.--Any person
asserting the applicability of an exemption or
exclusion under this subchapter shall prove such
applicability by clear and convincing evidence.
``(b) No-Less-Protection Rule.--
``(1) In general.--The Secretary shall not take any action
to reduce a protection afforded under this subchapter to a
laborer or mechanic who is an employee performing labor under a
contract or subcontract to which this subchapter applies
through any regulation, guidance, opinion, ruling, standard,
order, adjudicative decision, or other interpretation from the
protection provided to such laborer or mechanic through a prior
regulation, guidance, opinion, ruling, standard, order,
adjudicative decision, or other interpretation in effect on the
day before the date of such action, unless such reduction is
explicitly and specifically mandated by an Act of Congress.
``(2) Request for congressional action.--The Secretary may
submit a proposal to Congress for a reduction described in
paragraph (1), but shall not take any action described in such
paragraph without an explicit and specific mandate by an Act of
Congress.
``(3) Standard of deference.--Notwithstanding chapter 7 of
title 5, United States Code, in any action for judicial review
of an agency action under such chapter, a reviewing court shall
defer to a regulation, guidance, opinion, ruling, standard,
order, adjudicative decision, or other interpretation issued by
the agency that increases or otherwise strengthens a protection
afforded under this subchapter to a laborer or mechanic who is
an employee performing labor under a contract or subcontract to
which this subchapter applies unless such regulation, guidance,
opinion, ruling, standard, order, adjudicative decision, or
other interpretation is plainly erroneous or inconsistent with
this subchapter.''.
(2) Table of sections.--The table of sections for
subchapter IV of chapter 31 of title 40, United States Code, is
amended by adding at the end the following:
Sec. 3149. General standards for applying and interpreting workers'
rights.
(g) McNamara-O'Hara Service Contract Act.--Section 6709 of title
41, United States Code, as amended by section 202(b)(7)(A), is further
amended by adding at the end the following:
``(g) General Standards for Applying and Interpreting Workers'
Rights.--
``(1) Interpretation of protections and exemptions.--
``(A) Protections.--All protections afforded
service employees under this chapter shall be
interpreted expansively in favor of the service
employee or individual claiming classification as a
service employee.
``(B) Exemptions and exclusions.--
``(i) In general.--All exemptions and
exclusions under this chapter shall be
interpreted narrowly against the contractor or
subcontractor to which this chapter applies, or
person alleged to be such a contractor or
subcontractor, and limited in application to
those persons or circumstances plainly and
unmistakably within the language and spirit of
the exemption or exclusion.
``(ii) Clear and convincing evidence.--Any
person asserting the applicability of an
exemption or exclusion under this chapter shall
prove such applicability by clear and
convincing evidence.
``(2) No-less-protection rule.--
``(A) In general.--The Secretary shall not take any
action to reduce a protection afforded under this
chapter to a service employee through any regulation,
guidance, opinion, ruling, standard, order,
adjudicative decision, or other interpretation from the
protection provided to the service employee through a
prior regulation, guidance, opinion, ruling, standard,
order, adjudicative decision, or other interpretation
in effect on the day before the date of such action,
unless such reduction is explicitly and specifically
mandated by an Act of Congress.
``(B) Request for congressional action.--The
Secretary may submit a proposal to Congress for a
reduction described in subparagraph (A), but shall not
take any action described in such subparagraph without
an explicit and specific mandate by an Act of Congress.
``(C) Standard of deference.--Notwithstanding
chapter 7 of title 5, United States Code, in any action
for judicial review of an agency action under such
chapter, a reviewing court shall defer to a regulation,
guidance, opinion, ruling, standard, order,
adjudicative decision, or other interpretation issued
by the agency that increases or otherwise strengthens a
protection afforded to a service employee under this
chapter unless such regulation, guidance, opinion,
ruling, standard, order, adjudicative decision, or
other interpretation is plainly erroneous or
inconsistent with this chapter.''.
(h) Walsh-Healey Public Contracts Act.--
(1) In general.--Chapter 65 of title 41, United States
Code, is amended by adding at the end the following:
``SEC. 6512. GENERAL STANDARDS FOR APPLYING AND INTERPRETING WORKERS'
RIGHTS.
``(a) Interpretation of Protections and Exemptions.--
``(1) Protections.--All protections afforded under this
chapter to individuals performing any labor, with respect to
the manufacture or furnishing of materials, supplies, articles,
or equipment under a contract to which this chapter applies,
who is an employee of the contractor of such contract, shall be
interpreted expansively in favor of such individual or an
individual claiming classification as such an individual.
``(2) Exemptions and exclusions.--
``(A) In general.--All exemptions and exclusions
under this chapter shall be interpreted narrowly
against the contractor of a contract to which this
chapter applies, or person alleged to be such a
contractor, and limited in application to those persons
or circumstances plainly and unmistakably within the
language and spirit of the exemption or exclusion.
``(B) Clear and convincing evidence.--Any person
asserting the applicability of an exemption or
exclusion under this chapter shall prove such
applicability by clear and convincing evidence.
``(b) No-Less-Protection Rule.--
``(1) In general.--The Secretary shall not take any action
to reduce a protection afforded under this chapter to 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, who
is an employee of the contractor of such contract, through any
regulation, guidance, opinion, ruling, standard, order,
adjudicative decision, or other interpretation from the
protection provided to such individual through a prior
regulation, guidance, opinion, ruling, standard, order,
adjudicative decision, or other interpretation in effect on the
day before the date of such action, unless such reduction is
explicitly and specifically mandated by an Act of Congress.
``(2) Request for congressional action.--The Secretary may
submit a proposal to Congress for a reduction described in
paragraph (1), but shall not take any action described in such
paragraph without an explicit and specific mandate by an Act of
Congress.
``(3) Standard of deference.--Notwithstanding chapter 7 of
title 5, United States Code, in any action for judicial review
of an agency action under such chapter, a reviewing court shall
defer to a regulation, guidance, opinion, ruling, standard,
order, adjudicative decision, or other interpretation issued by
the agency that increases or otherwise strengthens a protection
afforded under this chapter to 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, who is an employee of the
contractor of such contract, unless such regulation, guidance,
opinion, ruling, standard, order, adjudicative decision, or
other interpretation is plainly erroneous or inconsistent with
this chapter.''.
(2) Table of sections.--The table of sections for chapter
65 of title 41, United States Code, is amended by adding at the
end the following:
Sec. 6512. General standards for applying and interpreting workers'
rights.
(i) Family and Medical Leave Act of 1993.--
(1) In general.--Title I of the Family and Medical Leave
Act of 1993 (29 U.S.C. 2611 et seq.) is amended by adding at
the end the following:
``SEC. 110. GENERAL STANDARDS FOR APPLYING AND INTERPRETING WORKERS'
RIGHTS.
``(a) Interpretation of Protections and Exemptions.--
``(1) Protections.--All protections afforded eligible
employees under this title, including as applied through the
definitions under section 3, shall be interpreted expansively
in favor of the eligible employee or individual claiming
classification as an eligible employee.
``(2) Exemptions and exclusions.--
``(A) In general.--All exemptions and exclusions
under this title, including as applied through the
definitions under section 3, shall be interpreted
narrowly against the employer, or person alleged to be
an employer, and limited in application to those
persons or circumstances plainly and unmistakably
within the language and spirit of the exemption or
exclusion.
``(B) Clear and convincing evidence.--Any person
asserting the applicability of an exemption or
exclusion under this title shall prove such
applicability by clear and convincing evidence.
``(b) No-Less-Protection Rule.--
``(1) In general.--The Secretary shall not take any action
to reduce a protection afforded an eligible employee under this
title through any regulation, guidance, opinion, ruling,
standard, order, adjudicative decision, or other interpretation
from the protection provided to the eligible employee through a
prior regulation, guidance, opinion, ruling, standard, order,
adjudicative decision, or other interpretation in effect on the
day before the date of such action, unless such reduction is
explicitly and specifically mandated by an Act of Congress.
``(2) Request for congressional action.--The Secretary may
submit a proposal to Congress for a reduction described in
paragraph (1), but shall not take any action described in such
paragraph without an explicit and specific mandate by an Act of
Congress.
``(3) Standard of deference.--Notwithstanding chapter 7 of
title 5, United States Code, in any action for judicial review
of an agency action under such chapter, a reviewing court shall
defer to a regulation, guidance, opinion, ruling, standard,
order, adjudicative decision, or other interpretation issued by
the agency that increases or otherwise strengthens a protection
afforded to an eligible employee under this title unless such
regulation, guidance, opinion, ruling, standard, order,
adjudicative decision, or other interpretation is plainly
erroneous or inconsistent with this title.''.
(2) Table of contents.--The table of contents in section
1(b) of the Family and Medical Leave Act of 1993 is amended by
inserting after the item relating to section 109 the following:
``Sec. 110. General standards for applying and interpreting workers'
rights.''.
(j) Federal Unemployment Tax Act (FUTA).--
(1) In general.--Section 3306(w) of the Internal Revenue
Code of 1986, as amended by section 206(j), is amended by
adding at the end the following new paragraph:
``(8) Section 20 of such Act.''.
(2) Effective date.--The amendment made by paragraph (1)
shall apply to services rendered on or after January 1, 2022.
SEC. 402. STATUTES OF LIMITATION.
(a) FLSA; Walsh-Healey Public Contracts Act; Davis-Bacon Act.--
Section 6 of the Portal-to-Portal Act of 1947 (29 U.S.C. 255) is
amended--
(1) in the matter preceding subsection (a), by striking
``for unpaid minimum wages, unpaid overtime compensation, or
liquidated damages,''; and
(2) in subsection (a)--
(A) by striking ``two years'' each place it appears
and inserting ``4 years'';
(B) by inserting ``or repeated'' after ``willful'';
and
(C) by striking ``three years'' and inserting ``6
years''.
(b) National Labor Relations Act.--Section 10(b) of the National
Labor Relations Act (29 U.S.C. 160(b)) is amended--
(1) by striking ``six months prior to the filing of the
charge with the Board'' and inserting ``4 years prior to the
filing of the charge with the Board, or 6 years prior to such
filing in the case of an alleged willful or repeated unfair
labor practice,''; and
(2) by striking ``six-month period'' and inserting ``4-year
period, or 6-year period, as applicable,''.
(c) Occupational Safety and Health Act of 1970.--Section 9(c) of
the Occupational Safety and Health Act of 1970 (29 U.S.C. 658(c)) is
amended by striking ``expiration of six months following the occurrence
of any violation'' and inserting ``expiration of--
``(1) except as provided in paragraph (2), 4 years
following the occurrence of any violation described in
subsection (a); or
``(2) in the case of a violation described in subsection
(a) that is willful or repeated, 6 years following the
occurrence of the violation.''.
(d) Family and Medical Leave Act of 1993.--Section 107(c) of the
Family and Medical Leave Act of 1993 (29 U.S.C. 2617(c)) is amended--
(1) in paragraph (1), by striking ``2 years'' and inserting
``4 years''; and
(2) in paragraph (2), by striking ``3 years'' and inserting
``6 years''.
TITLE V--GENERAL PROVISIONS
SEC. 501. SEVERABILITY.
If any provision of this Act or the application of such provision
to any person, entity, government, or circumstance, is held to be
unconstitutional, the remainder of this Act, or the application of such
provision to all other persons, entities, governments, or
circumstances, shall not be affected thereby.
<all>