Bipartisan House Bill Draft Introduced to Address Worker Classification Issues
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Published 07.28.2022
On July 20, a new bipartisan proposal, the Worker Flexibility and Choice Act (WFCA), was introduced by Reps. Henry Cuellar (D-TX), Elise Stefanik (R-NY) and Michelle Steel (R-CA) that would allow businesses to continue treating their workers as independent contractors, while also providing some protections typically provided to employees.
Under the current employee classification framework, there is no opportunity for workers to voluntarily assert their independence and no space for businesses and workers to develop modern work arrangements that blend elements of independent work with workplace benefits traditionally only available to employees. The classification of workers as employees or independent contractors is determined by various litmus tests depending on the specific statute or federal agency, and is further complicated by a patchwork of state and local standards. Furthermore, recent policies across the country have placed overly broad restrictions on independent work that further diminish the ability of workers to choose the type of work that best fits their needs.
To address this issue, the WFCA establishes a new work arrangement that combines the flexibility of independent work with certain workplace protections and opportunity for additional benefits. The relationship between the worker and the entity would be clearly defined through a “worker flexibility agreement” and voluntarily agreed to before any contracted work begins. Under a worker flexibility agreement, the worker would not be treated as an employee for federal tax purposes or under the Fair Labor Standards Act.
For agencies, these new worker flexibility agreements could create additional liability protection regarding proper classification of freelance talent, especially for those contractors who strongly wish to remain independent.
More specifically, the WFCA would:
Ensure the worker retains the freedom and flexibility to accept or reject offers to provide their services, giving them control over when, where, and how much they wish to work.
Promote worker freedom without infringing on certain workplace rights, including protections against discrimination, retaliation, and harassment.
Allow the worker to engage with and provide services for multiple entities at any given time.
Provide the worker a written summary of any health, pension, training, other benefits they may be eligible to receive.
Importantly, the worker flexibility agreements created in the bill would supersede state and local laws regarding worker classification, like California and Massachusetts’ broad “ABC” tests, which make it harder to classify an individual as an independent contractor.
The proposal is also backed by major gig companies and trucking and construction associations. Unions have tended to fight similar types of proposals in the past.
