[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3213 Engrossed in House (EH)]


  2d Session

                               H. R. 3213

_______________________________________________________________________

                                 AN ACT

   To amend title 38, United States Code, to clarify enforcement of 
veterans' employment and reemployment rights with respect to a State as 
 an employer or a private employer, to extend veterans' employment and 
   reemployment rights to members of the uniformed services employed 
       abroad by United States companies, and for other purposes.
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
105th CONGRESS
  2d Session
                                H. R. 3213

_______________________________________________________________________

                                 AN ACT


 
   To amend title 38, United States Code, to clarify enforcement of 
veterans' employment and reemployment rights with respect to a State as 
 an employer or a private employer, to extend veterans' employment and 
   reemployment rights to members of the uniformed services employed 
       abroad by United States companies, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``USERRA Amendments Act of 1998''.

SEC. 2. ENFORCEMENT OF RIGHTS WITH RESPECT TO A STATE AS AN EMPLOYER.

    (a) In General.--Section 4323 of title 38, United States Code, is 
amended to read as follows:
``Sec. 4323. Enforcement of rights with respect to a State or private 
              employer
    ``(a) Action for Relief.--(1) A person who receives from the 
Secretary a notification pursuant to section 4322(e) of this title of 
an unsuccessful effort to resolve a complaint relating to a State (as 
an employer) or a private employer may request that the Secretary refer 
the complaint to the Attorney General. If the Attorney General is 
reasonably satisfied that the person on whose behalf the complaint is 
referred is entitled to the rights or benefits sought, the Attorney 
General may appear on behalf of, and act as attorney for, the person on 
whose behalf the complaint is submitted and commence an action for 
relief under this chapter for such person. In the case of such an 
action against a State (as an employer), the action shall be brought in 
the name of the United States as the plaintiff in the action.
    ``(2) A person may commence an action for relief with respect to a 
complaint against a State (as an employer) or a private employer if the 
person--
            ``(A) has chosen not to apply to the Secretary for 
        assistance under section 4322(a) of this title;
            ``(B) has chosen not to request that the Secretary refer 
        the complaint to the Attorney General under paragraph (1); or
            ``(C) has been refused representation by the Attorney 
        General with respect to the complaint under such paragraph.
    ``(b) Jurisdiction.--(1) In the case of an action against a State 
(as an employer) or a private employer commenced by the United States, 
the district courts of the United States shall have jurisdiction over 
the action.
    ``(2) In the case of an action against a State (as an employer) by 
a person, the action may be brought in a State court of competent 
jurisdiction in accordance with the laws of the State.
    ``(3) In the case of an action against a private employer by a 
person, the district courts of the United States shall have 
jurisdiction of the action.
    ``(c) Venue.--(1) In the case of an action by the United States 
against a State (as an employer), the action may proceed in the United 
States district court for any district in which the State exercises any 
authority or carries out any function.
    ``(2) In the case of an action against a private employer, the 
action may proceed in the United States district court for any district 
in which the private employer of the person maintains a place of 
business.
    ``(d) Remedies.--(1) In any action under this section, the court 
may award relief as follows:
            ``(A) The court may require the employer to comply with the 
        provisions of this chapter.
            ``(B) The court may require the employer to compensate the 
        person for any loss of wages or benefits suffered by reason of 
        such employer's failure to comply with the provisions of this 
        chapter.
            ``(C) The court may require the employer to pay the person 
        an amount equal to the amount referred to in subparagraph (B) 
        as liquidated damages, if the court determines that the 
        employer's failure to comply with the provisions of this 
        chapter was willful.
    ``(2)(A) Any compensation awarded under subparagraph (B) or (C) of 
paragraph (1) shall be in addition to, and shall not diminish, any of 
the other rights and benefits provided for under this chapter.
    ``(B) In the case of an action commenced in the name of the United 
States for which the relief includes compensation awarded under 
subparagraph (B) or (C) of paragraph (1), such compensation shall be 
held in a special deposit account and shall be paid, on order of the 
Attorney General, directly to the person. If the compensation is not 
paid to the person because of inability to do so within a period of 
three years, the compensation shall be covered into the Treasury of the 
United States as miscellaneous receipts.
    ``(3) A State shall be subject to the same remedies, including 
prejudgment interest, as may be imposed upon any private employer under 
this section.
    ``(e) Equity Powers.--The court may use its full equity powers, 
including temporary or permanent injunctions, temporary restraining 
orders, and contempt orders, to vindicate fully the rights or benefits 
of persons under this chapter.
    ``(f) Standing.--An action under this chapter may be initiated only 
by a person claiming rights or benefits under this chapter under 
subsection (a) or by the United States under subsection (a)(1).
    ``(g) Respondent.--In any action under this chapter, only an 
employer or a potential employer, as the case may be, shall be a 
necessary party respondent.
    ``(h) Fees, Court Costs.--(1) No fees or court costs may be charged 
or taxed against any person claiming rights under this chapter.
    ``(2) In any action or proceeding to enforce a provision of this 
chapter by a person under subsection (a)(2) who obtained private 
counsel for such action or proceeding, the court may award any such 
person who prevails in such action or proceeding reasonable attorney 
fees, expert witness fees, and other litigation expenses.
    ``(i) Inapplicability of State Statute of Limitations.--No State 
statute of limitations shall apply to any proceeding under this 
chapter.
    ``(j) Definition.--In this section, the term `private employer' 
includes a political subdivision of a State.''.
    (b) Effective Date.--(1) Section 4323 of title 38, United States 
Code, as amended by subsection (a), shall apply to actions commenced 
under chapter 43 of such title on or after the date of the enactment of 
this Act, and shall apply to actions commenced under such chapter 
before the date of the enactment of this Act that are not final on the 
date of the enactment of this Act, without regard to when the cause of 
action accrued.
    (2) In the case of any such action against a State (as an employer) 
in which a person, on the day before the date of the enactment of this 
Act, is represented by the Attorney General under section 4323(a)(1) of 
such title as in effect on such day, the court shall upon motion of the 
Attorney General, substitute the United States as the plaintiff in the 
action pursuant to such section as amended by subsection (a).

SEC. 3. PROTECTION OF EXTRATERRITORIAL EMPLOYMENT AND REEMPLOYMENT 
              RIGHTS OF MEMBERS OF THE UNIFORMED SERVICES.

    (a) Definition of Employee.--Section 4303(3) of title 38, United 
States Code, is amended by adding at the end the following: ``Such term 
includes any person who is a citizen, national, or permanent resident 
alien of the United States employed in a workplace in a foreign country 
by an employer that is an entity incorporated or otherwise organized in 
the United States or that is controlled by an entity organized in the 
United States, within the meaning of section 4319(c) of this title.''.
    (b) Foreign Countries.--Subchapter II of chapter 43 of such title 
is amended by inserting after section 4318 the following new section:
``Sec. 4319. Employment and reemployment rights in foreign countries
    ``(a) Liability of Controlling United States Employer of Foreign 
Entity.--If an employer controls an entity that is incorporated or 
otherwise organized in a foreign country, any denial of employment, 
reemployment, or benefit by such entity shall be presumed to be by such 
employer.
    ``(b) Inapplicability to Foreign Employer.--This subchapter does 
not apply to foreign operations of an employer that is a foreign person 
not controlled by an United States employer.
    ``(c) Determination of Controlling Employer.--For the purpose of 
this section, the determination of whether an employer controls an 
entity shall be based upon the interrelations of operations, common 
management, centralized control of labor relations, and common 
ownership or financial control of the employer and the entity.
    ``(d) Exemption.--Notwithstanding any other provision of this 
subchapter, an employer, or an entity controlled by an employer, may--
            ``(1) discriminate within the meaning of section 4311 of 
        this title;
            ``(2) deny reemployment rights within the meaning of 
        section 4312, 4313, 4314, or 4315 of this title; or
            ``(3) deny benefits within the meaning of section 4316, 
        4317, or 4318 of this title,
with respect to an employee in a workplace in a foreign country, if 
compliance with any such section would cause such employer, or such 
entity controlled by an employer, to violate the law of the foreign 
country in which the workplace is located.''.
    (c) Clerical Amendment.--The table of sections at the beginning of 
chapter 43 of such title is amended by inserting after the item 
relating to section 4318 the following new item:

``4319. Employment and reemployment rights in foreign countries.''.
    (d) Effective Date.--The amendments made by this section shall 
apply only with respect to conduct occurring after the date of the 
enactment of this Act.

SEC. 4. COMPLAINTS RELATING TO REEMPLOYMENT OF MEMBERS OF THE UNIFORMED 
              SERVICES IN FEDERAL SERVICE.

    (a) In General.--The first sentence of paragraph (1) of section 
4324(c) of title 38, United States Code, is amended by inserting before 
the period at the end the following: ``, without regard as to whether 
the complaint accrued before, on, or after October 13, 1994''.
    (b) Effective Date.--The amendment made by subsection (a) shall 
apply to all complaints filed with the Merit Systems Protection Board 
on or after October 13, 1994.

            Passed the House of Representatives March 24, 1998.

            Attest:

                                                                 Clerk.