[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 3018 Introduced in Senate (IS)]

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118th CONGRESS
  1st Session
                                S. 3018

 To amend the Fair Labor Standards Act of 1938 and the National Labor 
   Relations Act to clarify the standard for determining whether an 
           individual is an employee, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            October 4, 2023

     Mr. Thune (for Mr. Scott of South Carolina (for himself, Mrs. 
Blackburn, Mr. Cramer, Mrs. Hyde-Smith, Mr. Braun, Mr. Wicker, and Mr. 
    Thune)) introduced the following bill; which was read twice and 
  referred to the Committee on Health, Education, Labor, and Pensions

_______________________________________________________________________

                                 A BILL


 
 To amend the Fair Labor Standards Act of 1938 and the National Labor 
   Relations Act to clarify the standard for determining whether an 
           individual is an employee, 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. CRITERIA FOR DETERMINING EMPLOYEE STATUS.

    (a) Criteria for Determining Employee Status Under the Fair Labor 
Standards Act.--Section 3(e) of the Fair Labor Standards Act of 1938 
(29 U.S.C. 203(e)) is amended--
            (1) by redesignating paragraphs (2), (3), (4), and (5) as 
        paragraphs (3), (4), (5), and (6), respectively;
            (2) in paragraph (1), by striking ``paragraphs (2), (3), 
        and (4)'' and inserting ``paragraphs (3), (4), (5), and (6)''; 
        and
            (3) by inserting after paragraph (1) the following:
            ``(2)(A) An individual shall be determined to be an 
        independent contractor rather than an employee of another 
        person if--
                    ``(i) such other person does not exercise 
                significant control over the details of the way the 
                work is performed by the individual, without regard to 
                any control the other person may exercise over the 
                final result of the work performed; and
                    ``(ii) while performing such work, the individual 
                has the opportunities and risks inherent with 
                entrepreneurship, such as the discretion to exercise 
                managerial skill, business acumen, or professional 
                judgment.
            ``(B) The following factors may not be used in determining 
        that an individual is an employee of another person:
                    ``(i) Whether such other person requires the 
                individual to comply with legal, statutory, or 
                regulatory requirements.
                    ``(ii) Whether such other person requires the 
                individual to comply with health and safety standards 
                that are more stringent than otherwise applicable 
                health and safety standards.
                    ``(iii) Whether such other person requires the 
                individual to carry insurance of any kind.
                    ``(iv) Whether such other person requires the 
                individual to meet contractually agreed-upon 
                performance standards, such as deadlines.''.

SEC. 2. EMPLOYEE CLASSIFICATION UNDER THE NATIONAL LABOR RELATIONS ACT.

    Section 2(3) of the National Labor Relations Act (29 U.S.C. 152(3)) 
is amended--
            (1) by striking ``(3) The term `employee' shall'' and 
        inserting the following:
            ``(3)(A) The term `employee' shall''; and
            (2) by adding at the end the following:
                    ``(B) Section 3(e)(2) of the Fair Labor Standards 
                Act of 1938 (29 U.S.C. 203(e)(2)) shall be used in 
                determining under this Act whether an individual is an 
                independent contractor or an employee of another 
                person, except that for purposes of this Act a 
                reference in such section to the term `employee' or 
                `person' shall be deemed a reference to such term as 
                defined in this section.''.
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