[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[H.R. 781 Introduced in House (IH)]

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118th CONGRESS
  1st Session
                                H. R. 781

To amend the Fair Labor Standards Act of 1938 to clarify the status of 
           an independent contractor, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                            February 2, 2023

   Mr. Ferguson (for himself, Mrs. Miller of West Virginia, Mr. Mike 
   Garcia of California, Mr. Austin Scott of Georgia, Mr. Owens, Ms. 
 Hageman, Mr. Cole, and Mr. McClintock) introduced the following bill; 
   which was referred to the Committee on Education and the Workforce

_______________________________________________________________________

                                 A BILL


 
To amend the Fair Labor Standards Act of 1938 to clarify the status of 
           an independent contractor, 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 ``Guaranteeing Independent Growth 
Act'' or the ``GIG Act''.

SEC. 2. DEFINITION OF INDEPENDENT CONTRACTOR.

    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 new paragraph:
    ``(6)(A) The term `employee' does not include an individual who 
performs services for another person as an independent contractor, as 
determined by the Secretary. In making such determination, the 
Secretary shall consider that an individual is likely to be performing 
services for another person as an independent contractor if such 
individual--
            ``(i) exercises substantial control over key aspects of the 
        performance of such services; and
            ``(ii) has the opportunity to earn profits or incur losses 
        based on the exercise of initiative or management of investment 
        by such individual.
    ``(B) In any case in which the Secretary determines that the 
considerations described in subparagraph (A) are not dispositive as to 
whether an individual is performing services for another person as an 
independent contractor, the Secretary may also consider that the 
individual is likely to be performing such services as an independent 
contractor if such services--
            ``(i) require specialized training or skills that such 
        person does not provide; and
            ``(ii) are performed--
                    ``(I) on a continuous basis (including on a 
                seasonal basis); and
                    ``(II) as part of an integrated unit.
    ``(C) In making any determination under this paragraph as to 
whether an individual is performing services for another person as an 
independent contractor, the Secretary shall only consider actual 
practices between the individual and such person, without regard to--
            ``(i) any contractual agreement or any other expectation of 
        either party that is not regularly met in the course of 
        performing such services; and
            ``(ii) any services that the individual performs that--
                    ``(I) are not for such person; and
                    ``(II) are not substantially similar to the 
                services that such individual performs for such 
                person.''.
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