[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. 263 Introduced in Senate (IS)]

111th CONGRESS
  1st Session
                                 S. 263

 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 SENATE OF THE UNITED STATES

                            January 15, 2009

Mr. Casey (for himself and Mr. Kennedy) introduced the following bill; 
which was read twice and referred to the Committee on Veterans' Affairs

_______________________________________________________________________

                                 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''.
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