1.This Act may be cited as
the Servicemember Employment
Protection Act of 2012
.
2.Unenforceability
of agreements to arbitrate disputes arising under USERRA
(a)Subchapter III of chapter 43 of title 38, United States
Code, is amended by adding at the end the following new section:
4328.Unenforceability
of agreements to arbitrate disputes
(a)Protection of
employee rightsNotwithstanding 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)(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)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, regardless of whether the
party resisting arbitration challenges the agreement to arbitrate specifically
or in conjunction with other terms of the agreement.
(d)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)The table of sections at the beginning of such chapter
is amended by inserting after the item relating to section 4327 the following
new item:
4328. Unenforceability of
agreements to arbitrate
disputes.
.
(c)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.
3.Expansion of
employment and reemployment rights of members of uniformed services to include
protection for absences from employment for medical treatment relating to
service-connected injuries and illnesses
(a)Section 4303(13) of
title 38, United States Code, is amended by inserting a period for which
a person is absent from a position of employment for the purpose of medical or
dental treatment for an injury or illness incurred or aggravated in line of
duty during a period of service in the uniformed services,
after
for any such duty,
.
(b)
(1)For purposes of that section 4303(13) and each
covered provision—
(A)the reference in
that section 4303(13) to a period for which a person is absent from a position
of employment for the purpose of medical or dental treatment shall not be
considered to be a reference to a period of leave under a covered provision;
and
(B)the person's
employer shall not designate the period of absence as such a period of
leave,
unless the
person requests and obtains the leave under the corresponding covered
provision.(2)In
this subsection, the term covered provision means—
(A)title I of the
Family and Medical Leave Act of 1993 (29 U.S.C. 2601 et seq.), including the
application of that title under the Congressional Accountability Act of 1995 (2
U.S.C. 1301 et seq.) and chapter 5 of title 3, United States Code; and
(B)subchapter V of
chapter 63 of title 5, United States Code.
4.Suspension,
termination, or debarment of contractors for repeated violations of employment
or reemployment rights of members of uniformed services
(a)Subchapter III of
chapter 43 of title 38, United States Code, as amended by section 2, is further
amended by adding at the end the following new section:
4329.Suspension,
termination, or debarment of contractors
(a)Grounds for
suspension, termination, or debarmentPayment under a contract
awarded by a Federal executive agency may be suspended and the contract may be
terminated, and the contractor who made the contract with the agency may be
suspended or debarred in accordance with the requirements of this section, if
the head of the agency determines that the contractor as an employer has
repeatedly failed or refused to comply with a provision of this chapter.
(b)Conduct of
suspension, termination, and debarment proceedingsA contracting
officer who determines in writing that cause for suspension of payments,
termination, or suspension or debarment exists shall initiate an appropriate
action, to be conducted by the agency concerned in accordance with applicable
law, including Executive Order 12549 or any superseding executive order, the
Federal Acquisition Regulation, and any other regulations prescribed to
implement the law or executive order.
(c)A contractor debarred by a final decision under this
section is ineligible for award of a contract by a Federal executive agency,
and for participation in a future procurement by a Federal executive agency,
for a period specified in the decision, not to exceed 5
years.
.
(b)The table of sections at the beginning of chapter 43 of
such title, as amended by section 2, is further amended by inserting after the
item relating to section 4328, as added by such section, the following new
item:
4329. Suspension, termination,
or debarment of
contractor.
.
(c)Not
later than 180 days after the date of the enactment of this Act, the Federal
Acquisition Regulatory Council shall amend the Federal Acquisition Regulation
to carry out section 4329 of title 38, United States Code, as added by
subsection (a).
(d)Section 4329 of title 38, United States Code, as added by
subsection (a), shall apply with respect to failures and refusals to comply
with provisions of chapter 43 of such title occurring on or after the date of
the enactment of this Act.