A bipartisan measure would establish “worker flexibility agreements,” where workers could maintain flexibility as independent contractors while benefiting from certain federal employee protections and benefits. The bill was introduced this week by Representatives Elise Stefanik (R-NY), Henry Cuellar (D-TX), and Michelle Steel (R-CA).
The Worker Flexibility and Choice Act would allow workers who enter into a “worker flexibility agreement” to retain “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.”
Workers with worker flexibility agreements would not be considered “employees” under the Fair Labor Standards Act or for federal tax purposes.
Such workers would have the flexibility to refuse offers provided by an employer without a negative impact on the ability of the workers to do provide services to the employer in the future during the arrangement’s term. They would also have the right to work for a business’ competitors unless a bargained-for non-solicitation sales agreement is in place.
Preemption: Worker flexibility agreements would supersede any state or local worker classification provisions, including the broad ABC test implemented in California and Massachusetts.
HR Policy Association recommended a similar approach in our Workplace 2020 report, which advocated for enabling companies to provide certain benefits to both their own employees and their contingent workforce without triggering employer or joint employer status under the law.
The proposal comes as the Biden administration seeks to implement a more strict test for independent contractor status under the FLSA through a U.S. Department of Labor rulemaking as the National Labor Relations Board considers reverting to a broader test under the NLRA. In Congress, the proposal will likely face an uphill battle as labor unions have historically opposed such measures, including a recent effort in Connecticut.
