[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1474 Introduced in House (IH)]
111th CONGRESS
1st Session
H. R. 1474
To amend title 38, United States Code, to improve the enforcement of
the Uniformed Services Employment and Reemployment Rights Act of 1994,
and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
March 12, 2009
Mr. Davis of Alabama (for himself, Mr. Boccieri, Mr. Walz, and Mr.
Altmire) introduced the following bill; which was referred to the
Committee on Veterans' Affairs, and in addition to the Committees on
Armed Services and Oversight and Government Reform, for a period to be
subsequently determined by the Speaker, in each case for consideration
of such provisions as fall within the jurisdiction of the committee
concerned
_______________________________________________________________________
A BILL
To amend title 38, United States Code, to improve the enforcement of
the Uniformed Services Employment and Reemployment Rights Act of 1994,
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 ``Servicemembers Access to Justice Act
of 2009''.
SEC. 2. WAIVER OF SOVEREIGN IMMUNITY UNDER THE 11TH AMENDMENT WITH
RESPECT TO ENFORCEMENT OF USERRA.
(a) In General.--Section 4323 of title 38, United States Code, is
amended--
(1) in subsection (b) by striking paragraph (2) and
inserting the following new paragraph:
``(2) In the case of an action against a State (as an employer) by
a person, the action may be brought in the appropriate district court
of the United States or State court of competent jurisdiction.'';
(2) by redesignating subsection (i) as subsection (j); and
(3) by inserting after subsection (h) the following new
subsection:
``(i) Waiver of State Sovereign Immunity.--(1) A State's receipt or
use of Federal financial assistance for any program or activity of a
State shall constitute a waiver of sovereign immunity, under the 11th
amendment to the Constitution or otherwise, to a suit brought by--
``(A) a person who is or was an employee in that program or
activity for the rights or benefits authorized the person by
this chapter;
``(B) a person applying to be such an employee in that
program or activity for the rights or benefits authorized the
person by this chapter; or
``(C) a person seeking reemployment as an employee in that
program or activity for the rights or benefits authorized the
person by this chapter.
``(2) In this subsection, the term `program or activity' has the
meaning given that term in section 309 of the Age Discrimination Act of
1975 (42 U.S.C. 6107).''.
(b) Application.--The amendments made by subsection (a) shall apply
to--
(1) any failure to comply with a provision of or any
violation of chapter 43 of title 38, United States Code, that
occurs before, on, or after the date of the enactment of this
Act; and
(2) to all actions or complaints filed under such chapter
43 that are commenced after the date of the enactment of this
Act.
SEC. 3. UNENFORCEABILITY OF AGREEMENTS TO ARBITRATE DISPUTES ARISING
UNDER USERRA.
(a) In General.--Chapter 43 of title 38, United States Code, is
amended by inserting after section 4327 the following new section:
``Sec. 4328. Unenforceability of agreements to arbitrate disputes
``(a) Protection of Employee Rights.--Notwithstanding any other
provision of law, any clause of any agreement between an employer and
an employee that requires arbitration of a dispute arising under this
chapter shall not be enforceable.
``(b) Exceptions.--
``(1) Waiver or agreement after dispute arises.--Subsection
(a) shall not apply with respect to any dispute if, after such
dispute arises, the parties involved knowingly and voluntarily
agree to submit such dispute to arbitration.
``(2) Collective bargaining agreements.--Subsection (a)
shall not preclude the enforcement of any of the rights or
terms of a valid collective bargaining agreement.
``(c) Validity and Enforcement.--Any issue as to whether this
section applies to an arbitration clause shall be determined by Federal
law. Except as otherwise provided in chapter 1 of title 9, the validity
or enforceability of an agreement to arbitrate referred to in
subsection (a) or (b)(1), shall be determined by a court, rather than
the arbitrator, irrespective of whether the party resisting arbitration
challenges the agreement to arbitrate specifically or in conjunction
with other terms of the agreement.
``(d) Application.--This section shall apply with respect to all
contracts and agreements between an employer and an employee in force
before, on, or after the date of the enactment of this section.''.
(b) Clerical Amendment.--The table of sections for such chapter is
amended by inserting after the item relating to section 4326 the
following new item:
``4328. Unenforceability of agreements to arbitrate disputes.''.
(c) Application.--The provisions of section 4328 of title 38,
United States Code, as added by subsection (a), shall apply to--
(1) any failure to comply with a provision of or any
violation of chapter 43 of title 38, United States Code, that
occurs before, on, or after the date of the enactment of this
Act; and
(2) to all actions or complaints filed under such chapter
43 that are pending on or after the date of the enactment of
this Act.
SEC. 4. ENHANCED REMEDIES FOR ENFORCEMENT OF USERRA.
(a) State and Private Employers.--Section 4323(d) of title 38,
United States Code, is amended--
(1) by redesignating paragraphs (2) and (3) as paragraphs
(4) and (5), respectively;
(2) in paragraph (4) (as so redesignated)--
(A) by inserting after ``compensation'' each place
it appears the following: ``or damages'';
(B) by striking ``subparagraph (B) or (C) of
paragraph (1)'' the first place it appears and
inserting ``paragraph (1) or (3), or both,''; and
(C) by striking ``subparagraph (B) or (C) of
paragraph (1)'' the second place it appears and
inserting ``paragraph (1) or (3), or both''; and
(3) by striking the subsection designation and heading and
paragraph (1) and inserting the following:
``(d) Remedies.--(1) A State or private employer who violates the
provisions of this chapter shall be liable to any person affected--
``(A) for damages in the amount of--
``(i) any wages, salary, benefits, or other
compensation denied or lost by such person by reason of
the violation; or
``(ii) in a case in which wages, salary, benefits,
or other compensation have not been denied or lost to
the person, any actual monetary losses sustained by the
person as a result of the violation;
``(B) the interest on the amount described in subparagraph
(A) calculated at the prevailing interest rates over the period
of time for which the damages are due; and
``(C) an additional amount as liquidated damages equal to
the sum of the amount described in subparagraph (A) and the
interest described in subparagraph (B), or $10,000, whichever
is greater except that, if the employer proves to the
satisfaction of the court that the act or omission giving rise
to the person's action was in good faith and that the employer
had reasonable grounds for believing the act or omission was
not a violation of the provisions of this chapter, the court
may award, in its discretion, no liquidated damages or award
any amount of liquidated damages not to exceed 100 percent of
the compensation or damages awarded under subparagraph (A) and
the interest described in subparagraph (B).
``(2) In any action under this section, the court may require the
employer to comply with the provisions of this chapter.''.
(b) Punitive Damages.--Section 4323(d) of such title is further
amended by inserting after paragraph (2) (as inserted by subsection
(a)(3) of this section) the following new paragraph:
``(3) In the case of a violation of the provisions of this chapter
by a State or private employer with 25 or more employees, the court
shall require the employer to pay the person affected punitive damages
if the court determines that the employer's violation of the provisions
of this chapter was done with malice or reckless indifference to the
rights of the person under this chapter.''.
(c) Right to Jury Trial.--Section 4323(d) of such title is further
amended by adding at the end the following:
``(6) A person who commences an action under this section shall be
entitled to a trial by jury.''.
(d) Federal Government Employers.--Paragraph (2) of section 4324(c)
of such title is amended to read as follows:
``(2) If the Board determines that a Federal executive agency or
the Office of Personnel Management has violated the provisions of this
chapter relating to the employment or reemployment of a person by the
agency, the Board shall enter an order requiring the agency or Office
to comply with such provisions and to compensate such person--
``(A) for damages in the amount of--
``(i) any wages, salary, benefits, or other
compensation denied or lost by such person by reason of
the violation; or
``(ii) in a case in which wages, salary, benefits,
or other compensation has not been denied or lost to
the person, any actual monetary losses sustained by the
person as a result of the violation;
``(B) the interest on the amount described in subparagraph
(A) calculated at the prevailing interest rates over the period
of time for which the damages are due; and
``(C) an additional amount as liquidated damages equal to
the sum of the amount described in subparagraph (A) and the
interest described in subparagraph (B), or $10,000, whichever
is greater; except that, if the Federal executive agency or the
Office of Personnel Management proves to the satisfaction of
the Board that the act or omission giving rise to such person's
complaint was in good faith and that the agency or Office had
reasonable grounds for believing that the act or omission was
not a violation of the provisions of this chapter, the Board
may award, in the discretion of the Board, no liquidated
damages or award any amount of liquidated damages not to exceed
100 percent of the compensation or damages awarded under
subparagraph (A) and the interest described in subparagraph
(B).''.
(e) Application.--The amendments made by this section shall apply
to--
(1) any failure to comply with a provision of or any
violation of chapter 43 of title 38, United States Code, that
occurs before, on, or after the date of the enactment of this
Act; and
(2) to all actions or complaints filed under such chapter
43 that are commenced after the date of the enactment of this
Act.
SEC. 5. REQUIRED AWARD OF ATTORNEY FEES IN ACTIONS TO ENFORCE
PROVISIONS OF USERRA.
(a) Enforcement of Rights With Respect to a State or Private
Employer.--Section 4323(h)(2) of title 38, United States Code, is
amended by striking ``may'' and inserting ``shall''.
(b) Enforcement of Rights With Respect to Federal Executive
Agencies.--Section 4324(c)(4) of such title is amended by striking
``the Board may, in its discretion, award'' and inserting ``the Board
shall award''.
(c) Application.--The amendments made subsections (a) and (b) shall
apply to--
(1) any failure to comply with a provision of or any
violation of chapter 43 of title 38, United States Code, that
occurs before, on, or after the date of the enactment of this
Act; and
(2) to all actions or complaints filed under such chapter
43 that are pending on or after the date of the enactment of
this Act.
SEC. 6. CLARIFYING THE DEFINITION OF ``SUCCESSOR IN INTEREST''.
(a) In General.--Section 4303(4) of title 38, United States Code,
is amended by adding at the end the following new subparagraph:
``(D)(i) The term `successor in interest' shall be
determined for purposes of subparagraph (A)(iv) on a case-by-
case basis using a multi-factor test which considers the
following factors regardless of the form of the succession:
``(I) Substantial continuity of the same business
operations.
``(II) Use of the same plant.
``(III) Continuity of work force.
``(IV) Similarity of jobs and working conditions.
``(V) Similarity of supervisory personnel.
``(VI) Similarity in machinery, equipment, and
production methods.
``(VII) Similarity of products or services.
``(ii) The successor's lack of notice or awareness of a
potential or pending claim under this chapter at the time of a
merger, acquisition, or other form of succession shall not be
considered when applying the multi-factor test under clause
(i).''.
(b) Application.--The amendment made by subsection (a) shall apply
to--
(1) any failure to comply with a provision of or any
violation of chapter 43 of title 38, United States Code, that
occurs before, on, or after the date of the enactment of this
Act; and
(2) to all actions or complaints filed under such chapter
43 that are pending on or after the date of the enactment of
this Act.
SEC. 7. CLARIFYING THAT USERRA PROHIBITS WAGE DISCRIMINATION AGAINST
MEMBERS OF THE ARMED FORCES.
(a) In General.--Section 4303(2) of title 38, United States Code,
is amended by striking ``(other than wages or salary for work
performed)'' and inserting ``(including wages or salary)''.
(b) Application.--The amendment made by subsection (a) shall apply
to--
(1) any failure to comply with a provision of or any
violation of chapter 43 of title 38, United States Code, that
occurs before, on, or after the date of the enactment of this
Act; and
(2) to all actions or complaints filed under such chapter
43 that are pending on or after the date of the enactment of
this Act.
SEC. 8. REQUIRING EQUITABLE RELIEF WHEN APPROPRIATE.
(a) In General.--Section 4323(e) of title 38, United States Code,
is amended--
(1) by striking ``The court shall use,'' and inserting
``(1) The court shall use,''; and
(2) by adding at the end the following new paragraph:
``(2) Notwithstanding rule 65 of the Federal Rules of Civil
Procedure or any other provision of law, for purposes of determining
whether to issue an injunction or restraining order pursuant to
paragraph (1)--
``(A) an employer's denial of reemployment or retention in
employment shall constitute irreparable harm to a person who is
denied reemployment or retention in employment if an injunction
to reinstate such person is not issued, and such person shall
be considered to have no adequate remedy at law;
``(B) if the court balances the hardships between the
parties, there shall be a rebuttable presumption that the
balance of harm to a person who is denied reemployment or
retention in employment if an injunction to reinstate such
person is not issued outweighs the harm to such person's
employer or former employer if an injunction is issued to
reinstate such person; and
``(C) if the court considers the public interest or public
policy, there shall be a rebuttable presumption that the
issuance of an injunction to reinstate a person who is denied
reemployment or retention in employment is in the public
interest and advances public policy.''.
(b) Application.--The amendments made by subsection (a) shall apply
to--
(1) any failure to comply with a provision of or any
violation of chapter 43 of title 38, United States Code, that
occurs before, on, or after the date of the enactment of this
Act; and
(2) to all actions or complaints filed under such chapter
43 that are pending on or after the date of the enactment of
this Act.
SEC. 9. REQUIREMENT THAT FEDERAL AGENCIES PROVIDE NOTICE TO CONTRACTORS
OF POTENTIAL USERRA OBLIGATIONS.
(a) Civilian Agencies.--The Federal Property and Administrative
Services Act of 1949 (41 U.S.C. 251 et seq.) is amended by adding at
the end the following new section:
``SEC. 318. NOTICE TO CONTRACTORS OF POTENTIAL OBLIGATIONS RELATING TO
EMPLOYMENT AND REEMPLOYMENT OF MEMBERS OF THE ARMED
FORCES.
``Each contract for the procurement of property or services that is
entered into by the head of an executive agency shall include a notice
to the contractor that the contractor may have obligations under
chapter 43 of title 38, United States Code.''.
(b) Armed Forces.--
(1) In general.--Chapter 137 of title 10, United States
Code, is amended by adding at the end the following new
section:
``Sec. 2334. Notice to contractors of potential obligations relating to
employment and reemployment of members of the armed
forces
``Each contract for the procurement of property or services that is
entered into by the head of an executive agency shall include a notice
to the contractor that the contractor may have obligations under
chapter 43 of title 38.''.
(2) Clerical amendment.--The table of sections for such
chapter is amended by adding at the end the following new item:
``2334. Notice to contractors of potential obligations relating to
employment and reemployment of members of
the armed forces.''.
SEC. 10. CLARIFYING THAT PROVISIONS OF SECTION 4302 OF TITLE 38, UNITED
STATES CODE, APPLY TO BOTH SUBSTANTIVE AND PROCEDURAL
RIGHTS.
Section 4302 is amended by inserting ``substantive or procedural''
before ``right or benefit'' each place it occurs.
SEC. 11. COMPTROLLER GENERAL OF THE UNITED STATES STUDY ON
EFFECTIVENESS OF FEDERAL PROGRAMS OF EDUCATION AND
OUTREACH ON EMPLOYER OBLIGATIONS UNDER USERRA.
(a) Study Required.--The Comptroller General of the United States
shall conduct a study on the effectiveness of Federal programs of
education and outreach on employer obligations under chapter 43 of
title 38, United States Code.
(b) Contents of Study.--In carrying out the study required by
subsection (a), the Comptroller General shall--
(1) assess current practices and procedures of Federal
agencies for educating employers about their obligations under
chapter 43 of title 38, United States Code;
(2) identify best practices for bringing the employment
practices of small businesses into compliance with such
chapter;
(3) determine whether the Employer Support for the Guard
and Reserve, the Small Business Administration, or other
agencies could collaborate to develop a program to educate
employers regarding their obligations under such chapter; and
(4) determine the effect on recruitment and retention in
the National Guard and Reserves of the failure of employers to
meet their reemployment obligations under such chapter.
(c) Report to Congress.--Not later than December 31, 2009, the
Comptroller General shall submit to Congress a report on the study
conducted under subsection (a), including the following:
(1) The findings of the Comptroller General with respect to
such study.
(2) The recommendations of the Comptroller General for the
improvement of education and outreach for employers with
respect to their obligations under chapter 43 of title 38,
United States Code.
SEC. 12. TECHNICAL AMENDMENTS.
(a) Amendment to Congressional Accountability Act of 1995.--Section
206(b) of the Congressional Accountability Act of 1995 (2 U.S.C.
1316(b)) is amended by striking ``under paragraphs (1), (2)(A), and (3)
of section 4323(c) of title 38, United States Code'' and inserting
``under subsection 4323(d) of title 38, United States Code''.
(b) Amendment to Section 416 of Title 3, United States Code.--
Section 416(b) of title 3, United States Code, is amended by striking
``under paragraphs (1) and (2)(A) of section 4323(c) of title 38'' and
inserting ``under section 4323(d) of title 38''.
(c) Amendment to Section 4324 of Title 38, United States Code.--
Section 4324(b)(4) of title 38, United States Code, is amended by
inserting before the period the following: ``declining to initiate an
action and represent the person before the Merit Systems Protection
Board''.
<all>