Worker Flexibility and Small Business Protection Act of 2020

II 116TH CONGRESS 2D SESSION S. 4738 To provide a right to flexibility and to broaden and increase employee protec- tions 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, Edu- cation, 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 pro- vide public transparency on workers’ rights violations, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Worker Flexibility and 4 Small Business Protection Act of 2020’’. 5 SEC. 2. TABLE OF CONTENTS. 6 The table of contents for this Act is as follows: 7 VerDate Sep 11 2014 22:42 Oct 26, 2020 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S4738.IS S4738 pbinns on DSKJLVW7X2PROD with BILLS 2 •S 4738 IS 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 1 AND EMPLOYEE PROTEC- 2 TIONS AT WORK 3 SEC. 101. RIGHT TO FLEXIBILITY. 4 (a) IN GENERAL.—The Fair Labor Standards Act of 5 1938 (29 U.S.C. 201 et seq.) is amended— 6 (1) by inserting after section 7 (29 U.S.C. 207) 7 the following: 8 ‘‘SEC. 8. RIGHT TO FLEXIBILITY. 9 ‘‘(a) DEFINITIONS.—In this section: 10 VerDate Sep 11 2014 22:42 Oct 26, 2020 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S4738.IS S4738 pbinns on DSKJLVW7X2PROD with BILLS 3 •S 4738 IS ‘‘(1) COVERED EMPLOYEE.—The term ‘covered 1 employee’ means, with respect to an employer, an 2 employee who— 3 ‘‘(A) prior to the date of enactment of the 4 Worker Flexibility and Small Business Protec- 5 tion Act of 2020, was classified by the employer 6 as an independent contractor; and 7 ‘‘(B) in any workweek is engaged in com- 8 merce or in the production of goods for com- 9 merce, or is employed by an enterprise engaged 10 in commerce or in the production of goods for 11 commerce. 12 ‘‘(2) SCHEDULE AND SCHEDULING FLEXI- 13 BILITY.—The term ‘schedule and scheduling flexi- 14 bility’, with respect to the work of a covered em- 15 ployee under subsection (b), includes— 16 ‘‘(A) the timing of the work throughout an 17 hour, day, week, month, or year; 18 ‘‘(B) the total duration of the work in any 19 given period; 20 ‘‘(C) the location where the work is per- 21 formed; and 22 ‘‘(D) the ability to perform work for any 23 entity other than the employer of the covered 24 VerDate Sep 11 2014 22:42 Oct 26, 2020 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S4738.IS S4738 pbinns on DSKJLVW7X2PROD with BILLS 4 •S 4738 IS employee, including any direct competitor of the 1 employer. 2 ‘‘(b) RIGHT TO KEEP FLEXIBILITY.— 3 ‘‘(1) IN GENERAL.—Any covered employee of 4 an employer has the right to maintain the same 5 schedule and scheduling flexibility that the covered 6 employee possessed at any time while performing 7 labor for such employer as an independent con- 8 tractor in the 12-month period prior to the date of 9 enactment of the Worker Flexibility and Small Busi- 10 ness Protection Act of 2020. 11 ‘‘(2) DURATION OF RIGHT.—A covered em- 12 ployee shall continue to possess the right to main- 13 tain the same schedule and scheduling flexibility de- 14 scribed in paragraph (1) for the duration of the em- 15 ployment of the covered employee with the employer. 16 ‘‘(3) NONRETALIATION.— 17 ‘‘(A) IN GENERAL.—An employer of a cov- 18 ered employee— 19 ‘‘(i) may not discharge the covered 20 employee for any reason except upon a 21 showing of just cause; and 22 ‘‘(ii) may not otherwise discriminate 23 against the covered employee because of or 24 VerDate Sep 11 2014 22:42 Oct 26, 2020 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S4738.IS S4738 pbinns on DSKJLVW7X2PROD with BILLS 5 •S 4738 IS with relation to the schedule or scheduling 1 flexibility of the employee. 2 ‘‘(B) DISCRIMINATION.—For the purposes 3 of subparagraph (A)(ii), the term ‘discriminate’, 4 with respect to a covered employee, shall in- 5 clude— 6 ‘‘(i) reducing the amount or number 7 of hours of work of the covered employee; 8 ‘‘(ii) restricting or limiting the work 9 of the covered employee for the employer; 10 or 11 ‘‘(iii) removing the covered employee 12 from the workplace, including by sus- 13 pending or deactivating an account the 14 covered employee uses to perform work for 15 the employer. 16 ‘‘(C) MOTIVATING FACTOR.—For the pur- 17 poses of subparagraph (A)(ii), unlawful dis- 18 crimination is established when a covered em- 19 ployee demonstrates that the schedule or sched- 20 uling flexibility of the covered employee was a 21 motivating factor for any adverse employment 22 action taken by an employer, even if such action 23 was also motivated by other factors. 24 ‘‘(c) RIGHT TO REQUEST FUTURE FLEXIBILITY.— 25 VerDate Sep 11 2014 22:42 Oct 26, 2020 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S4738.IS S4738 pbinns on DSKJLVW7X2PROD with BILLS 6 •S 4738 IS ‘‘(1) RIGHT TO REQUEST.—An employee shall 1 have the right to request to have the schedule that 2 the employee desires, including— 3 ‘‘(A) the number of shifts or other units of 4 work per day or week; 5 ‘‘(B) the number of hours of work per day; 6 ‘‘(C) the number of days of work per week; 7 ‘‘(D) the location where the employee per- 8 forms the work; and 9 ‘‘(E) any unpaid time off the employee de- 10 sires to take. 11 ‘‘(2) NONRETALIATION.— 12 ‘‘(A) IN GENERAL.—An employer shall not 13 discharge or in any other manner discriminate 14 against an employee for making a request de- 15 scribed in paragraph (1). 16 ‘‘(B) MOTIVATING FACTOR.—Unlawful dis- 17 charge or discrimination against an employee is 18 established under subparagraph (A) when the 19 complaining party demonstrates that the re- 20 quest described in paragraph (1) was a moti- 21 vating factor for such discharge or discrimina- 22 tion, even if such discharge or discrimination 23 was also motivated by other factors. 24 ‘‘(3) RESPONSE.— 25 VerDate Sep 11 2014 22:42 Oct 26, 2020 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S4738.IS S4738 pbinns on DSKJLVW7X2PROD with BILLS 7 •S 4738 IS ‘‘(A) IN GENERAL.—An employer shall re- 1 spond to a request described in paragraph (1) 2 by either granting the request in full or pro- 3 viding the employee with a written justification 4 for any portion of the request that the employer 5 denies based on a compelling business necessity. 6 ‘‘(B) REVIEW BY SECRETARY.—If the em- 7 ployer does not grant a request described in 8 paragraph (1) in full, the employee may request 9 review by the Secretary. The Secretary may— 10 ‘‘(i) issue an order to overrule the em- 11 ployer’s denial of the employee’s request, 12 or any portion of the employee’s request, if 13 the Secretary finds that the employer does 14 not have a compelling business necessity 15 for the denial; or 16 ‘‘(ii) issue an order to confirm the em- 17 ployer’s denial of the employee’s request, 18 or any portion of the employee’s request, if 19 the Secretary finds that the employer has 20 a compelling business necessity for the de- 21 nial. 22 ‘‘(C) APPEALS.— 23 ‘‘(i) IN GENERAL.—An aggrieved em- 24 ployer or employee may— 25 VerDate Sep 11 2014 22:42 Oct 26, 2020 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S4738.IS S4738 pbinns on DSKJLVW7X2PROD with BILLS 8 •S 4738 IS ‘‘(I) appeal an order of the Sec- 1 retary under subparagraph (B) to an 2 administrative law judge; and 3 ‘‘(II) appeal an order of an ad- 4 ministrative law judge under sub- 5 clause (I) to a Federal or State court 6 of competent jurisdiction. 7 ‘‘(ii) COMPLIANCE WITH ORDER DUR- 8 ING APPEAL.—For the duration of an ap- 9 peal described in clause (i)(I), the em- 10 ployer and employee shall comply with the 11 order of the Secretary until and unless the 12 order is overturned by an administrative 13 law judge. For the duration of an appeal 14 described in clause (i)(II), the employer 15 and employee shall comply with the order 16 of the administrative law judge until and 17 unless the order is overturned by a Federal 18 or State court of competent jurisdiction. 19 ‘‘(D) COMPELLING BUSINESS NECES- 20 SITY.—For purposes of this paragraph, the 21 term ‘compelling business necessity’ means only 22 any of the following: 23 VerDate Sep 11 2014 22:42 Oct 26, 2020 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S4738.IS S4738 pbinns on DSKJLVW7X2PROD with BILLS 9 •S 4738 IS ‘‘(i) A significant burden of additional 1 costs to the employer that would be prohib- 2 itive of continuing to conduct business. 3 ‘‘(ii) A complete inability of the em- 4 ployer to reorganize work amongst existing 5 employees. 6 ‘‘(iii) A complete inability of the em- 7 ployer to recruit additional employees. 8 ‘‘(iv) A significant detrimental effect 9 on the ability of the employer to meet cus- 10 tomer demand. 11 ‘‘(v) A lack of work during the period 12 the employee proposes to work. 13 ‘‘(vi) A planned structural change to 14 the employer’s business, which was 15 planned before the request was made. 16 ‘‘(vii) Any other grounds as deter- 17 mined by the Secretary through regulation 18 that the Secretary demonstrates satisfy the 19 high bar of being compellingly necessary 20 for an employer to continue conducting 21 business and being more than merely a le- 22 gitimate business reason.’’; 23 (2) by striking section 10 (29 U.S.C. 210); and 24 VerDate Sep 11 2014 22:42 Oct 26, 2020 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S4738.IS S4738 pbinns on DSKJLVW7X2PROD with BILLS 10 •S 4738 IS (3) by redesignating section 9 (29 U.S.C. 209) 1 as section 10. 2 (b) ENFORCEMENT.— 3 (1) PROHIBITED ACTS.—Section 15(a)(2) of the 4 Fair Labor Standards Act of 1938 (29 U.S.C. 5 215(a)(2)) is amended by striking ‘‘section 6 or 7’’ 6 and inserting ‘‘section 6, 7, or 8’’. 7 (2) PENALTIES.—Section 16(e) of the Fair 8 Labor Standards Act of 1938 (29 U.S.C. 216(e)) is 9 amended by adding at the end the following: 10 ‘‘(6) PENALTIES FOR VIOLATING RIGHT TO FLEXI- 11 BILITY.—Any person who violates section 8 shall be sub- 12 ject to a civil penalty, for each employee aggrieved by the 13 violation and for each day in which the employer is in such 14 violation, of— 15 ‘‘(A) $1,000; or 16 ‘‘(B) if the violation is repeated or willful, 17 $5,000.’’. 18 (c) CONFORMING AMENDMENTS TO OTHER LAWS.— 19 (1) AGE DISCRIMINATION IN EMPLOYMENT ACT 20 OF 1967.—Section 7(a) of the Age Discrimination in 21 Employment Act of 1967 (29 U.S.C. 626(a)) is 22 amended by striking ‘‘sections 9 and 11 of the Fair 23 Labor Standards Act of 1938, as amended (29 24 U.S.C. 209 and 211)’’ and inserting ‘‘sections 10 25 VerDate Sep 11 2014 22:42 Oct 26, 2020 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S4738.IS S4738 pbinns on DSKJLVW7X2PROD with BILLS 11 •S 4738 IS and 11 of the Fair Labor Standards Act of 1938, 1 as amended (29 U.S.C. 210 and 211)’’. 2 (2) FAMILY AND MEDICAL LEAVE ACT OF 3 1993.—Section 106(d) of the Family and Medical 4 Leave Act of 1993 (29 U.S.C. 2616(d)) is amended 5 by striking ‘‘section 9 of the Fair Labor Standards 6 Act of 1938 (29 U.S.C. 209)’’ and inserting ‘‘section 7 10 of the Fair Labor Standards Act of 1938 (29 8 U.S.C. 210)’’. 9 SEC. 102. RIGHT TO EMPLOYEE PROTECTIONS AT WORK. 10 (a) FAIR LABOR STANDARDS ACT OF 1938.— 11 (1) STRENGTHENING EMPLOYEE TEST.—Sec- 12 tion 3(e) of the Fair Labor Standards Act of 1938 13 (29 U.S.C. 203(e)) is amended by adding at the end 14 the following: 15 ‘‘(6)(A) For purposes of this Act, and except as pro- 16 vided in paragraphs (2), (3), (4), (5), (7), and (9), an indi- 17 vidual performing any labor for remuneration for a person 18 shall be an employee employed by the person and not an 19 independent contractor of the person, unless— 20 ‘‘(i) the individual is free from control and di- 21 rection in connection with the performance of the 22 labor, both under the contract for the performance 23 of the labor and in fact; 24 VerDate Sep 11 2014 22:42 Oct 26, 2020 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S4738.IS S4738 pbinns on DSKJLVW7X2PROD with BILLS 12 •S 4738 IS ‘‘(ii) the labor is performed outside the usual 1 course of the business of the person; and 2 ‘‘(iii) the individual is customarily engaged in 3 an independently established trade, occupation, pro- 4 fession, or business of the same nature as that in- 5 volved in the labor performed. 6 ‘‘(B)(i) Subparagraph (A) is not a codification of the 7 common law and shall not be interpreted to reflect, or to 8 be limited or restricted by, common law interpretations re- 9 garding when an individual is an employee of another per- 10 son. Subparagraph (A) shall be considered complete as 11 written, and any judicial or agency interpretation of such 12 subparagraph shall be limited to the explicit requirements 13 of such subparagraph. 14 ‘‘(ii) The requirements of subparagraph (A) shall not 15 be in any way affected by any agreement, written or other- 16 wise, that purports to demonstrate an individual’s ac- 17 knowledgment of or acquiescence to the absence of an em- 18 ployer-employee relationship with a particular employer. 19 ‘‘(7)(A) Notwithstanding any contrary provisions in 20 this subsection or subsection (d) or (g), in any instance 21 in which there is a non-compete agreement between a per- 22 son and an individual who performs labor for such person, 23 the presence of the non-compete agreement, without re- 24 gard to the legality or enforceability of the non- [Text truncated for display. Full text available on Congress.gov.]