118 S3018 IS: 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. U.S. Senate 2023-10-04 text/xml EN Pursuant to Title 17 Section 105 of the United States Code, this file is not subject to copyright protection and is in the public domain.

II118th CONGRESS1st SessionS. 3018IN THE SENATE OF THE UNITED STATESOctober 4, 2023Mr. 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 PensionsA BILLTo 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.

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..

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..