HR 4366 — Save Local Business Act

changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italics, and existing law in which no 
change is proposed is shown in roman):

 NATIONAL LABOR RELATIONS ACT

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 definitions

 Sec. 2. When used in this Act--
 (1) The term ``person'' includes one or more individuals, 
labor organizations, partnerships, associations, corporations, 
legal representatives, trustees, trustees in cases under title 
11 of the United States Code, or receivers.
 (2) [The term ``employer''] (A) The term ``employer'' 
includes any person acting as an agent of an employer, directly 
or indirectly, but shall not include the United States or any 
wholly owned Government corporation, or any Federal Reserve 
Bank, or any State or political subdivision thereof, or any 
person subject to the Railway Labor Act, as amended from time 
to time, or any labor organization (other than when acting as 
an employer), or anyone acting in the capacity of officer or 
agent of such labor organization.
 (B) An employer may be considered a joint employer of the 
employees of another employer only if each employer directly, 
actually, and immediately, exercises significant control over 
the essential terms and conditions of employment of the 
employees of the other employer, such as hiring such employees, 
discharging such employees, determining the rate of pay and 
benefits of such employees, supervising such employees on a 
day-to-day basis, assigning such employees a work schedule, 
position, or task, or disciplining such employees.
 (3) The term ``employee'' shall include any employee, and 
shall not be limited to the employees of a particular employer, 
unless the Act explicitly states otherwise, and shall include 
any individual whose work has ceased as a consequence of, or in 
connection with, any current labor dispute or because of any 
unfair labor practice, and who has not obtained any other 
regular and substantially equivalent employment, but shall not 
include any individual employed as an agricultural laborer, or 
in the domestic service of any family or person at his home, or 
any individual employed by his parent or spouse, or any 
individual having the status of an independent contractor, or 
any individual employed as a supervisor, or any individual 
employed by an employer subject to the Railway Labor Act, as 
amended from time to time, or by any other person who is not an 
employer as herein defined.
 (4) The term ``representatives'' includes any individual or 
labor organization.
 (5) The term ``labor organization'' means any organization of 
any kind, or any agency or employee representation committee or 
plan, in which employees participate and which exists for the 
purpose, in whole or in part, of dealing with employers 
concerning grievances, labor disputes, wages, rates of pay, 
hours of employment, or conditions of work.
 (6) The term ``commerce'' means trade, traffic, commerce, 
transportation, or communication among the several States, or 
between the District of Columbia or any Territory of the United 
States and any State or other Territory, or between any foreign 
country and any State, Territory, or the District of Columbia, 
or within the District of Columbia or any Territory, or between 
points in the same State but through any other State or any 
Territory or the District of Columbia or any foreign country.
 (7) The term ``affecting commerce'' means in commerce, or 
burdening or obstructing commerce or the free flow of commerce, 
or having led or tending to lead to a labor dispute burdening 
or obstructing commerce or the free flow of commerce.
 (8) The term ``unfair labor practice'' means any unfair labor 
practice listed in section 8.
 (9) The term ``labor dispute'' includes any controversy 
concerning terms, tenure or conditions of employment, or 
concerning the association or representation of persons in 
negotiating, fixing, maintaining, changing, or seeking to 
arrange terms or conditions of employment, regardless of 
whether the disputants stand in the proximate relation of 
employer and employee.
 (10) The term ``National Labor Relations Board'' means the 
National Labor Relations Board provided for in section 3 of 
this Act.
 (11) The term ``supervisor'' means any individual having 
authority, in the interest of the employer, to hire, transfer, 
suspend, lay off, recall, promote, discharge, assign, reward, 
or discipline other employees, or responsibly to direct them, 
or to adjust their grievances, or effectively to recommend such 
action, if in connection with the foregoing the exercise of 
such authority is not of a merely routine or clerical nature, 
but requires the use of independent judgment.
 (12) The term ``professional employee'' means--
 (a) any employee engaged in work (i) predominantly 
 intellectual and varied in character as opposed to 
 routine mental, manual, mechanical, or physical work; 
 (ii) involving the consistent exercise of discretion 
 and judgment in its performance; (iii) of such a 
 character that the output produced or the result 
 accomplished cannot be standardized in relation to a 
 given period of time; (iv) requiring knowledge of an 
 advanced type in a field of science or learning 
 customarily acquired by a prolonged course of 
 specialized intellectual instruction and study in an 
 institution of higher learning or a hospital, as 
 distinguished from a general academic education or from 
 an apprenticeship or from training in the performance 
 of routine mental, manual, or physical processes; or
 (b) any employee, who (i) has completed the courses 
 of specialized intellectual instruction and study 
 described in clause (iv) of paragraph (a), and (ii) is 
 performing related work under the supervision of a 
 professional person to qualify himself to become a 
 professional employee as defined in paragraph (a).
 (13) In determining whether any person is acting as an 
``agent'' of another person so as to make such other person 
responsible for his acts, the question of whether the specific 
acts performed were actually authorized or subsequently 
ratified shall not be controlling.
 (14) The term ``health care institution'' shall include any 
hospital, convalescent hospital, health maintenance 
organization, health clinic, nursing home, extended care 
facility, or other institution devoted to the care of sick, 
infirm, or aged person.

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 FAIR LABOR STANDARDS ACT OF 1938

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 definitions

 Sec. 3. As used in this Act--
 (a) ``Person'' means an individual, partnership, association, 
corporation, business trust, legal representative, or any 
organized group of persons.
 (b) ``Commerce'' means trade, commerce, transportation, 
transmission, or communication among the several States or 
between any State and any place outside thereof.
 (c) ``State'' means any State of the United States or the 
District of Columbia or any Territory or possession of the 
United States.
 (d) [``Employer'' includes] (1) ``Employer'' includes any 
person acting directly or indirectly in the interest of an 
employer in relation to an employee and includes a public 
agency, but does not include any labor organization (other than 
when acting as an employer) or anyone acting in the capacity of 
officer or agent of such labor organization.
 (2) An employer may be considered a joint employer of the 
employees of another employer for purposes of this Act only if 
each employer meets the criteria set forth in section 2(2)(B) 
of the National Labor Relations Act (29 U.S.C. 152(2)(B)) 
except that, for purposes of determining joint-employer status 
under this Act, the terms ``employee'' and ``employer'' 
referenced in such section shall have the meanings given such 
terms in this section.
 (e)(1) Except as provided in paragraphs (2), (3), and (4), 
the term ``employee'' means any individual employed by an 
employer.
 (2) In the case of an individual employed by a public agency, 
such term means--
 (A) any individual employed by the Government of the 
 United States--
 (i) as a civilian in the military departments 
 (as defined in section 102 of title 5, United 
 States Code),
 (ii) in any executive agency (as defined in 
 section 105 of such title),
 (iii) in any unit of the judicial branch of 
 the Government which has positions in the 
 competitive service,
 (iv) in a nonappropriated fund 
 instrumentality under the jurisdiction of the 
 Armed Forces,
 (v) in the Library of Congress, or
 (vi) the Government Printing Office;
 (B) any individual employed by the United States 
 Postal Service or the Postal Rate Commission; and
 (C) any individual employed by a State, political 
 subdivision of a State, or an interstate governmental 
 agency, other than such an individual--
 (i) who is not subject to the civil service 
 laws of the State, political subdivision, or 
 agency which employs him; and
 (ii) who--
 (I) holds a public elective office of 
 that State, political subdivision, or 
 agency,
 (II) is selected by the holder of 
 such an office to be a member of his 
 personal staff,
 (III) is appointed by such an 
 officeholder to serve on a policymaking 
 level,
 (IV) is an immediate adviser to such 
 an officeholder with respect to the 
 constitutional or legal powers of his 
 office, or
 (V) is an employee in the legislative 
 branch or legislative body of that 
 State, political subdivision, or agency 
 and is not employed by the legislative 
 library of such State, political 
 subdivision, or agency.
 (3) For purposes of subsection (u), such term does not 
include any individual employed by an employer engaged in 
agriculture if such individual is the parent, spouse, child, or 
other member of the employer's immediate family.
 (4)(A) The term ``employee'' does not include any individual 
who volunteers to perform services for a public agency which is 
a State, a political subdivision of a State, or an interstate 
governmental agency, if--
 (i) the individual receives no compensation or is 
 paid expenses, reasonable benefits, or a nominal fee to 
 perform the services for which the individual 
 volunteered; and
 (ii) such services are not the same type of services 
 which the individual is employed to perform for such 
 public agency.
 (B) An employee of a public agency which is a State, 
political subdivision of a State, or an interstate governmental 
agency may volunteer to perform services for any other State, 
political subdivision, or interstate governmental agency, 
including a State, political subdivision or agency with which 
the employing State, political subdivision, or agency has a 
mutual aid agreement.
 (5) The term ``employee'' does not include individuals who 
volunteer their services solely for humanitarian purposes to 
private non-profit food banks and who receive from the food 
banks groceries.
 (f) ``Agriculture'' includes farming in all its branches and 
among other things includes the cultivation and tillage of the 
soil, dairying, the production, cultivation, growing, and 
harvesting of any agricultural or horticultural commodities 
(including commodities defined as agricultural commodities in 
section 15(g) of the Agricultural Marketing Act, as amended), 
the raising of livestock, bees, fur-bearing animals, or 
poultry, and any practices (including any forestry or lumbering 
operations) performed by a farmer or on a farm as an incident 
to or in conjunction with such farming operations, including 
preparation for market, delivery to storage or to market or to 
carriers for transportation to market.
 (g) ``Employ'' includes to suffer or permit to work.
 (h) ``Industry'' means a trade, business, industry, or other 
activity, or branch or group thereof, in which individuals are 
gainfully employed.
 (i) ``Goods'' means goods (including ships and marine 
equipment), wares, products, commodities, merchandise, or 
articles or subjects of commerce of any character, or any part 
or ingredient thereof, but does not include goods after their 
delivery into the actual physical possession of the ultimate 
consumer thereof other than a producer, manufacturer, or 
processor thereof.
 (j) ``Producer'' means produced, manufactured, mined, 
handled, or in any manner worked on in any State; and for the 
purposes of this Act an employee shall be deemed to have been 
engaged in the production of goods if such employee was 
employed in producing, manufacturing, mining, handling, 
transporting, or in any other manner working on such goods, or 
in any closely related process or occupation directly essential 
to the production thereof, in any State.
 (k) ``Sale'' or ``sell'' includes any sale, exchange, 
contract to sell, consignment for sale, shipment for sale, or 
other disposition.
 (l) ``Oppressive child labor'' means a condition of 
employment under which (1) any employee under the age of 
sixteen years is employed by an employer (other than a parent 
or a person standing in place of a parent employing his own 
child or a child in his custody under the age of sixteen years 
in an occupation other than manufacturing or mining or an 
occupation found by the Secretary of Labor to be particularly 
hazardous for the employment of children between the ages of 
sixteen and eighteen years or detrimental to their health or 
well-being) in any occupation, or (2) any employee between the 
ages of sixteen and eighteen years is employed by an employer 
in any occupation which the Secretary of Labor shall find and 
by order declare to be particularly hazardous for the 
employment of children between such ages or detrimental to 
their health or well-being; but oppressive child labor shall 
not be deemed to exist by virture of the employment in any 
occupation of any person with respect to whom the employer 
shall have on file an unexpired certificate issued and held 
pursuant to regulations of the Secretary of Labor certifying 
that such person is above the oppressive child labor age. The 
Secretary of Labor shall provide by regulation or by order that 
the employment of employees between the ages of fourteen and 
sixteen years in occupations other than manufacturing and 
mining shall not be deemed to constitute oppressive child labor 
if and to the extent that the Secretary of Labor determines 
that such employment is confined to periods which will not 
interfere with their schooling and to conditions which will not 
interfere with their health and well-being.
 (m)(1) ``Wage'' paid to any employee includes the reasonable 
cost, as determined by the Secretary of Labor, to the employer 
of furnishing such employee with board, lodging, or other 
facilities, if such board, lodging, or other facilities are 
customarily furnished by such employer to his employees: 
Provided, That the cost of board, lodging, or other facilities 
shall not be included as a part of the wage paid to any 
employee to the extent it is excluded therefrom under the terms 
of a bona fide collective-bargaining agreement applicable to 
the particular employee: Provided further, That the Secretary 
is authorized to determine the fair value of such board, 
lodging, or other facilities for defined classes of employees 
and in defined areas, based on average cost to the employer or 
to groups of employers similarly situated, or average value to 
groups of employees, or other appropriate measures of fair 
value. Such evaluations, where applicable and pertinent, shall 
be used in lieu of actual measure of cost in determining the 
wage paid to any employee.
 (2)(A) In determining the wage an employer is required to pay 
a tipped employee, the amount paid such employee by the 
employee's employer shall be an amount equal to--
 (i) the cash wage paid such employee which for 
 purposes of such determination shall be not less than 
 the cash wage required to be paid such an employee on 
 the date of the enactment of this paragraph; and
 (ii) an additional amount on account of the tips 
 received by such employee which amount is equal to the 
 difference between the wage specified in clause (i) and 
 the wage in effect under section 6(a)(1).
The additional amount on account of tips may not exceed the 
value of the tips actually received by an employee. The 
preceding 2 sentences shall not apply with respect to any 
tipped employee unless such employee has been informed by the 
employer of the provisions of this subsection, and all tips 
received by such employee have been retained by the employee, 
except that this subsection shall not be construed to prohibit 
the pooling of tips among employees who customarily and 
regularly receive tips.
 (B) An employer may not keep tips received by its employees 
for any purposes, including allowing managers or supervisors to 
keep any portion of employees' tips, regardless of whether or 
not the employer takes a tip credit.
 (n) ``Resale'' shall not include the sale of goods to be used 
in residential or farm building construction, repair, or 
maintenance: Provided, That the sale is recognized as a bona 
fide retail sale in the industry.
 (o) Hours Worked.--In determining for the purposes of 
sections 6 and 7 the hours for which an employee is employed, 
there shall be excluded any time spent in changing clothes or 
washing at the beginning or end of each workday which was 
excluded from measured working time during the week involved by 
the express terms of or by custom or practice under a bona fide 
collective-bargaining agreement applicable to the particular 
employee.
 (p) ``American vessel'' includes any vessel which is 
documented or numbered under the laws of the United States.
 (q) ``Secretary'' means the Secretary of Labor.
 (r)(1) ``Enterprise'' means the related activities performed 
(either through unified operation or common control) by any 
person or persons for a common business purpose, and includes 
all such activities whether performed in one or more 
establishments or by one or more corporate or other 
organizational units including departments of an establishment 
operated through leasing arrangements, but shall not include 
the related activities performed for such enterprise by an 
independent contractor. Within the meaning of this subsection, 
a retail or service establishment which is under independent 
ownership shall not be deemed to be so operated or controlled 
as to be other than a separate and distinct enterprise by 
reason of any arrangement, which includes, but is not 
necessarily limited to, an agreement, (A) that it will sell, or 
sell only, certain goods specified by a particular 
manufacturer, distributor, or advertiser, or (B) that it will 
join with other such establishments in the same industry for 
the purpose of collective purchasing, or (C) that it will have 
the exclusive rights to sell the goods or use the brand name of 
a manufacturer, distributor, or advertiser within a specified 
area, or by reason of the fact that it occupies premises leased 
to it by a person who also leases premises to other retail or 
service establishments.
 (2) For purposes of paragraph (1), the activities performed 
by any person or persons--
 (A) in connection with the operation of a hospital, 
 an institution primarily engaged in the care of the 
 sick, the aged, the mentally ill or defective who 
 reside on the premises of such institution, a school 
 for mentally or physicially handicapped or gifted 
 children, a preschool, elementary or secondary school, 
 or an institution of higher education (regardless of 
 whether or not such hospital, institution, or school is 
 operated for profit or not for profit), or
 (B) in connection with the operation of a street, 
 suburban or interurban electric railway, or local 
 trolley or motorbus carrier, if the rates and services 
 of such railway or carrier are subject to regulation by 
 a State or local agency (regardless of whether or not 
 such railway or carrier is public or private or 
 operated for profit or not for profit), or
 (C) in connection with the activities of a public 
 agency.
shall be deemed to be activities performed for a business 
purpose.
 (s)(1) ``Enterprise engaged in commerce or in the production 
of goods for commerce'' means an enterprise that--
 (A)(i) has employees engaged in commerce or in the 
 production of goods for commerce, or that has employees 
 handling, selling, or otherwise working on goods or 
 materials that have been moved in or produced for 
 commerce by any person; and
 (ii) is an enterprise whose annual gross volume of 
 sales made or business done is not less than $500,000 
 (exclusive of excise taxes at the retail level that are 
 separately stated);
 (B) is engaged in the operation of a hospital, an 
 institution primarily engaged in the care of the sick, 
 the aged, or the mentally ill or defective who reside 
 on the premises of such institution, a school for 
 mentally or physically handicapped or gifted children, 
 a preschool, elementary or secondary school, or an 
 institution of higher education (regardless of whether 
 or not such hospital, institution, or school is public 
 or private or operated for profit or not for profit); 
 or
 (C) is an activity of a public agency.
 (2) Any establishment that has as its only regular employees 
the owner thereof or the parent, spouse, child, or other member 
of the immediate family of such owner shall not be considered 
to be an enterprise engaged in commerce or in the production of 
goods for commerce or a part of such an enterprise. The sales 
of such an establishment shall not be included for the purpose 
of determining the annual gross volume of sales of any 
enterprise for the purpose of this subsection.
 (t) ``Tipped employee'' means any employee engaged in an 
occupation in which he customarily and regularly receives more 
than $30 a month in tips.
 (u) ``Man-day'' means any day during which an employee 
performs any agricultural labor for not less than one hour.
 (v) ``Elementary school'' means a day or residential school 
which provides elementary education, as determined under State 
law.
 (w) ``Secondary school'' means a day or residential school 
which provides secondary education, as determined under State 
law.
 (x) ``Public agency'' means the Government of the United 
States; the government of a State or political subdivision 
thereof; any agency of the United States (including the United 
States Postal Service and Postal Rate Commission), a State, or 
a political subdivision of a State; or any interstate 
governmental agency.
 (y) ``Employee in fire protection activities'' means an 
employee, including a firefighter, paramedic, emergency medical 
technician, rescue worker, ambulance personnel, or hazardous 
materials worker, who--
 (1) is trained in fire suppression, has the legal 
 authority and responsibility to engage in fire 
 suppression, and is employed by a fire department of a 
 municipality, county, fire district, or State; and
 (2) is engaged in the prevention, control, and 
 extinguishment of fires or response to emergency 
 situations where life, property, or the environment is 
 at risk.

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