; . (5) Rules regarding unlawful discharge or discrimination Section 15 of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 215 ) is amended by adding at the end the following: (c) Rules regarding unlawful discharge or discrimination (1) Presumption of retaliation Any action taken against an employee within 90 days of the employee taking any action described in subsection (a)(3)(A), including taking any such action with respect to exercising the right of the employee pursuant to section 5 to not be misclassified, shall establish a rebuttable presumption that the action is discrimination against the employee in violation of subsection (a)(3). (2) Motivating factor Unlawful discharge or other discrimination against an employee under subsection (a)(3) is established when the complaining party demonstrates that one of the actions or the classification described in such subsection 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(d) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 203(d) ) is amended to read as follows: (d) Employer (1) In general The term employer includes any person acting directly or indirectly in the interest of an employer in relation to an employee. (2) Inclusions and exclusions The term employer 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. (3) Application with reference to other definitions The term employer shall be interpreted and applied in a manner that is consistent with the other definitions in this section and that incorporates the term employee , as defined in subsection (e), and the term employ , as defined in subsection (g). (4) Statutory employers in certain industries The term employer shall include any person, except a person excluded