[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 3233 Introduced in Senate (IS)]

112th CONGRESS
  2d Session
                                S. 3233

 To amend title 38, United States Code, to improve the enforcement of 
    employment and reemployment rights of members of the uniformed 
                   services, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              May 23, 2012

 Mr. Casey (for himself and Mr. Wyden) 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 
    employment and reemployment rights of members of the uniformed 
                   services, 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 2012''.

SEC. 2. WAIVER OF SOVEREIGN IMMUNITY UNDER THE 11TH AMENDMENT WITH 
              RESPECT TO ENFORCEMENT OF EMPLOYMENT AND REEMPLOYMENT 
              RIGHTS OF MEMBERS OF THE UNIFORMED SERVICES.

    (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 REGARDING 
              EMPLOYMENT AND REEMPLOYMENT RIGHTS OF MEMBERS OF THE 
              UNIFORMED SERVICES.

    (a) In General.--Subchapter III of chapter 43 of title 38, United 
States Code, is amended by adding at the end 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) 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) 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 EMPLOYMENT AND 
              REEMPLOYMENT RIGHTS OF MEMBERS OF THE UNIFORMED SERVICES.

    (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)''; and
                    (C) by striking ``subparagraph (B) or (C) of 
                paragraph (1)'' the second place it appears and 
                inserting ``paragraph (1) or (3)''; 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 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 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 
              EMPLOYMENT AND REEMPLOYMENT RIGHTS OF MEMBERS OF THE 
              UNIFORMED SERVICES.

    (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. 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. 7. REQUIREMENT THAT FEDERAL AGENCIES PROVIDE NOTICE TO CONTRACTORS 
              OF POTENTIAL OBLIGATIONS RELATING TO EMPLOYMENT AND 
              REEMPLOYMENT RIGHTS OF MEMBERS OF THE UNIFORMED SERVICES.

    (a) Civilian Agencies.--
            (1) In general.--Chapter 47 of title 41, United States 
        Code, is amended by adding at the end the following new 
        section:
``Sec. 4712. Notice to contractors of potential obligations relating to 
              employment and reemployment rights of members of the 
              uniformed services
    ``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.''.
            (2) Clerical amendment.--The table of sections at the 
        beginning of chapter 47 of such title is amended by inserting 
        after the item relating to section 4711 the following new item:

``4712. Notice to contractors of potential obligations relating to 
                            employment and reemployment rights of 
                            members of the uniformed services.''.
    (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. 2336. Notice to contractors of potential obligations relating to 
              employment and reemployment rights of members of the 
              uniformed services
    ``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:

``2336. Notice to contractors of potential obligations relating to 
                            employment and reemployment rights of 
                            members of the uniformed services.''.

SEC. 8. CLARIFYING THAT PROVISIONS OF SECTION 4302 OF TITLE 38, UNITED 
              STATES CODE, APPLY TO BOTH SUBSTANTIVE AND PROCEDURAL 
              RIGHTS.

    Section 4302 of title 38, United States Code, is amended by 
inserting ``substantive or procedural'' before ``right or benefit'' 
each place it occurs.

SEC. 9. COMPTROLLER GENERAL OF THE UNITED STATES STUDY ON EFFECTIVENESS 
              OF FEDERAL PROGRAMS OF EDUCATION AND OUTREACH ON EMPLOYER 
              OBLIGATIONS REGARDING EMPLOYMENT AND REEMPLOYMENT RIGHTS 
              OF MEMBERS OF THE UNIFORMED SERVICES.

    (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, 2012, 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.
                                 <all>