; and (ii) 25 percent of the amount of the penalty assessed for similarly situated employees involved in the action; and (B) the court shall determine how to divide the remainder of the amount of the penalty assessed for similarly situated employees involved in the action equitably among such employees. (5) Arbitration (A) In general Notwithstanding any other provision of Federal law and except as provided in subparagraph (B), the right to bring a civil action under this subsection may not be waived, limited, or otherwise restricted by any contract or other agreement between an employee and an employer entered into before the events giving rise to the civil action under this subsection occurred, including any contract or other agreement to resolve disputes through arbitration. (B) Consent of Secretary No civil action brought under this subsection may be sent to or resolved through arbitration, regardless of whether all parties to the civil action have consented to arbitration, without the explicit consent of the Secretary for sending that specific action to arbitration. . (b) National Labor Relations Act (1) Strengthening employee test Section 2(3) of the National Labor Relations Act ( 29 U.S.C. 152(3) ) is amended— (A) by striking The term and inserting (A) The term ; (B) by striking employment, but shall not and inserting employment. Such term shall not ; and (C) by adding at the end the following: (B) (i) For purposes of this Act, and except as provided in the second sentence of subparagraph (A) and subparagraphs (C) and (E), an individual performing any labor for remuneration for a person shall be an employee employed by such person and not an independent contractor of the person, unless— (I) the individual is free from control and direction in connection with the performance of the labor, both under the contract for the performance of the labor and in fact; (II) the labor is performed outside the usual course of the business of the person