; and (ii) was classified by the person as an independent contractor prior to the date of enactment of the Worker Flexibility and Small Business Protection Act of 2020 . . (5) Rules regarding unlawful discharge or discrimination Section 11(c) of the Occupational Safety and Health Act of 1970 ( 29 U.S.C. 660(c) ) is amended by adding at the end the following: (4) Presumption of retaliation Any action taken by a person described in paragraph (1)(A) against an employee within 90 days of the employee taking any action described in such paragraph, including taking any such action with respect to exercising the right of the employee pursuant to section 5(a)(3) to not be misclassified, shall establish a rebuttable presumption that the action is discrimination against the employee in violation of paragraph (1). (5) Motivating factor Unlawful discharge or other discrimination against an employee under paragraph (1) is established when the complaining party demonstrates that one of the actions or the classification described in such paragraph was a motivating factor for such discharge or other discrimination, even if such discharge or other discrimination was also motivated by other factors. . (6) Statutory employers in heavily misclassified industries (A) Definition of employer Section 3(5) of the Occupational Safety and Health Act of 1970 ( 29 U.S.C. 652(5) ) is amended to read as follows: (5) Employer (A) In general The term employer means a person engaged in a business affecting commerce who has employees. (B) Exclusion The term employer does not include the United States (not including the United States Postal Service) or any State or political subdivision of a State. (C) Statutory employers in certain industries The term employer shall include any person (except as provided in subparagraph (B)), with respect to an individual described in paragraph (6)(E) performing labor that is beneficial to the person, that is engaged in any of the following work: (i) Transportation, including any person that benefits from labor