Worker Flexibility and Choice Act
This bill allows employers to offer prospective workers flexibility arrangements that the individual may voluntarily enter before work begins. Under such an arrangement, a worker generally would not be considered an employee under the Fair Labor Standards Act of 1938 or the Internal Revenue Code of 1986.
[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[H.R. 8442 Introduced in House (IH)]
<DOC>
117th CONGRESS
2d Session
H. R. 8442
To provide workers with schedule flexibility and choice, and for other
purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
July 20, 2022
Mr. Cuellar (for himself, Ms. Stefanik, and Mrs. Steel) introduced the
following bill; which was referred to the Committee on Education and
Labor, and in addition to the Committee on Ways and Means, for a period
to be subsequently determined by the Speaker, in each case for
consideration of such provisions as fall within the jurisdiction of the
committee concerned
_______________________________________________________________________
A BILL
To provide workers with schedule flexibility and choice, 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 Choice Act''.
SEC. 2. WORKER FLEXIBILITY AGREEMENTS.
Section 3 of the Fair Labor Standards Act of 1938 (29 U.S.C. 203)
is amended--
(1) in subsection (e), by adding at the end the following:
``(6)(A) Except as provided in subparagraph (B), the term
`employee' does not include any individual who has entered into a
worker flexibility agreement with an entity during the duration of such
worker flexibility agreement.
``(B) For the purposes of sections 3(l), 12, and 13(c), and
paragraphs (3) and (4) of section 15(a), the term `employee' includes
an individual described in subparagraph (A).''; and
(2) by adding at the end the following:
``(z)(1) Worker Flexibility Agreement.--The term `worker
flexibility agreement' means an arrangement--
``(A) that is knowingly and voluntarily entered into by an
entity and an individual before work begins, in accordance with
paragraph (2);
``(B) under which--
``(i) the individual retains the rights provided to
employees in connection with other workplace laws,
including those relating to individual employee privacy
rights, nondiscrimination, nonharassment,
nonretaliation, safety, and leave under the Family and
Medical Leave Act, in accordance with applicable laws;
``(ii) the individual retains the freedom and
flexibility to reject offers the entity provides to the
individual to provide services or results without
negatively impacting the individual's opportunity to
provide services to the entity in the future during the
arrangement's term; and
``(iii) the individual retains the right to perform
the same services or results as the services or results
provided under the arrangement to competing businesses,
unless part of a bargained-for non-solicitation sales
agreement;
``(C) that specifies that the individual entering into the
agreement--
``(i) will not be treated as an employee for
Federal tax purposes with respect to services performed
pursuant to the agreement during the period during
which the agreement is in effect; and
``(ii) has not been treated as an employee for
Federal tax purposes with respect to the same or
similar services performed at any time during the
calendar year in which such agreement is entered into
by the individual and the entity;
``(D) that may include other requirements, if agreed to by
the individual and the entity;
``(E) that is affirmed in writing and that--
``(i) states the entity has offered, and the
individual has chosen to enter into, an arrangement
whereby the individual is not subject to the minimum
wage and overtime protections of this Act and is not
treated as an employee under the Internal Revenue Code
of 1986 (and related State and local laws); and
``(ii) includes a statement of all of the rights
and requirements described subparagraphs (B) and (C);
and
``(F) that is for a defined period of time and that may be
renewed or renegotiated by the individual and the entity
following its expiration in accordance with the requirements of
this section.
``(2) Knowing and Voluntary Agreement.--For the purposes of this
subsection, an agreement described in paragraph (1) shall not be
considered to be entered into knowingly and voluntarily unless the
agreement--
``(A) is written in plain language in a manner that can be
understood by the average individual eligible to participate;
``(B) specifically refers to rights or claims under this
Act;
``(C) advises the individual in writing of their right to
consult with others, including an attorney, prior to signing
the agreement;
``(D) confirms that the individual has been provided with a
written summary of health, pensions, insurance (including
accident or other occupational health products), training, and
certification programs, or other benefits, if any, that the
individual is eligible for while the agreement is in effect;
and
``(E) includes the signature of the individual and a
representative of the entity.''.
SEC. 3. SUPERSEDURE AND VALIDITY.
Section 18 of the Fair Labor Standards Act of 1938 (29 U.S.C. 218)
is amended by adding at the end, the following:
``(c) Supersedure and Validity of Worker Flexibility Agreements.--
``(1) In general.--Except as otherwise provided in
paragraph (2), with respect to any individual who has entered
into a worker flexibility agreement, the requirements of
subsections (e)(6) and (z) of section 3 shall supersede all
Federal, State, and local laws relating to wages and other
monies paid, hours worked, documentation and recordkeeping, and
applicable taxes, benefits, and contributions insofar as they
may apply to the employment relationship between the individual
and the entity covered under the worker flexibility agreement.
``(2) Revocation.--A worker flexibility agreement shall be
valid, irrevocable, and enforceable, except upon such grounds
as exist at law or equity for the revocation of any
contract.''.
SEC. 4. AMENDMENTS TO THE INTERNAL REVENUE CODE OF 1986 AND ERISA.
(a) Treatment Under Internal Revenue Code of 1986.--
(1) In general.--Chapter 25 of the Internal Revenue Code of
1986 is amended by inserting after section 3508 the following
new section:
``SEC. 3508A. TREATMENT OF SERVICES PERFORMED UNDER WORKER FLEXIBILITY
AGREEMENTS.
``(a) General Rule.--For purposes of this title, in the case of
services performed pursuant to a worker flexibility agreement--
``(1) the individual performing such services shall not be
treated as an employee; and
``(2) the person for whom such services are performed shall
not be treated as an employer.
``(b) Worker Flexibility Agreement.--For purposes of this section,
the term `worker flexibility agreement' has the meaning given such term
under section 3(z) of the Fair Labor Standards Act of 1938 (29 U.S.C.
203(z)).''.
(2) Clerical amendment.--The table of sections for chapter
25 of such Code is amended by inserting after the item relating
to section 3508 the following new item:
``Sec. 3508A. Treatment of services performed under worker flexibility
agreements.''.
(b) ERISA.--Section 3(40)(A) of the Employee Retirement Income
Security Act of 1974 (29 U.S.C. 1002(40)(A)) is amended--
(1) in clause (ii), by striking ``or'';
(2) in clause (iii), by striking the period and inserting
``, and''; and
(3) by adding at the end the following:
``(iv) by an entity for individuals who have entered into a
worker flexibility agreement, as defined in section 3(z) of the
Fair Labor Standards Act of 1938 (29 U.S.C. 203(z)).''.
<all>
Introduced in House
Introduced in House
Referred to the Committee on Education and Labor, and in addition to the Committee on Ways and Means, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Committee on Education and Labor, and in addition to the Committee on Ways and Means, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
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