[House Report 118-241]
[From the U.S. Government Publishing Office]


118th Congress    }                                     {       Report
                        HOUSE OF REPRESENTATIVES
 1st Session      }                                     {      118-241

======================================================================



 
                SERVICEMEMBER EMPLOYMENT PROTECTION ACT
                                OF 2023

                                _______
                                

October 2, 2023.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

   Mr. Bost, from the Committee on Veterans' Affairs, submitted the 
                               following

                              R E P O R T

                        [To accompany H.R. 3943]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Veterans' Affairs, to whom was referred 
the bill (H.R. 3943) to amend title 38, United States Code, to 
improve the reemployment rights of members of the Armed Forces, 
and for other purposes, having considered the same, reports 
favorably thereon with an amendment and recommends that the 
bill as amended do pass.

                                CONTENTS

                                                                   Page
Bill.............................................................     2
Purpose and Summary..............................................     3
Background and Need for Legislation..............................     4
Hearings.........................................................     5
Subcommittee Consideration.......................................     6
Committee Consideration..........................................     6
Committee Votes..................................................     6
Committee Oversight Findings.....................................     7
Statement of General Performance Goals and Objectives............     7
Earmarks and Tax and Tariff Benefits.............................     7
Committee Cost Estimate..........................................     7
Budget Authority and Congressional Budget Office Estimate........     7
Federal Mandates Statement.......................................     9
Advisory Committee Statement.....................................     9
Applicability to Legislative Branch..............................     9
Statement on Duplication of Federal Programs.....................     9
Section-by-Section Analysis of the Legislation...................     9
Changes in Existing Law Made by the Bill as Reported.............    10

    The amendment is as follows:
    Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Servicemember Employment Protection 
Act of 2023''.

SEC. 2. IMPROVEMENTS TO REEMPLOYMENT RIGHTS OF MEMBERS OF THE ARMED 
                    FORCES.

  (a) USERRA Purposes.--Section 4301(a)(1) of title 38, United States 
Code, is amended by striking ``encourage noncareer service in the 
uniformed services'' and inserting ``encourage service in the uniformed 
services''.
  (b) Prohibition of Retaliation.--Subsection (b) of section 4311 of 
title 38, United States Code, is amended by inserting ``or other 
retaliatory action'' after ``employment action''.
  (c) Expansion of Injunctive Relief.--Subsection (e) of section 4323 
of such title 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 paragraphs:
  ``(2) A person bringing an action to enforce a provision of this 
chapter pursuant to subsection (a) shall be entitled to an injunction 
under paragraph (1) if such person demonstrates--
          ``(A) a violation--
                  ``(i) of the provisions of this chapter; or
                  ``(ii) of the provisions of this chapter is 
                threatened or is imminent;
          ``(B) the harm to the person outweighs the injury to the 
        employer;
          ``(C) a likelihood of success on the merits of such action; 
        and
          ``(D) awarding such relief is in the public interest.
  ``(3) The court may not deny a motion for injunctive relief on the 
basis that a party bringing an action to enforce a provision of this 
chapter may be awarded wages unearned due to an unlawful termination or 
denial of employment at the conclusion of such action.''.
  (d) Damages Against a State or Private Employer.--Section 4323 of 
such title is further amended, in paragraph (1) of subsection (d), by 
striking subparagraph (C) and inserting the following new 
subparagraphs:
          ``(C) The court may require the employer to pay the person 
        the amount referred to in subparagraph (B) and interest on such 
        amount, calculated at a rate of 3 percent per year.
          ``(D) The court may require the employer to pay the person 
        the greater of $50,000 or the amount equal to the amounts 
        referred to in subparagraphs (B) and (C) as liquidated damages, 
        if the court determines that the employer knowingly failed to 
        comply with the provisions of this chapter.''.
  (e) Mandatory Attorney Fees Award in Successful Actions for 
Reemployment.--
          (1) MSPB actions.--Paragraph (4) of subsection (c) of section 
        4324 of such title is amended--
                  (A) by striking ``may, in its discretion,'' and 
                inserting ``shall''; and
                  (B) by adding at the end the following new sentence: 
                ``The Board may, in its discretion, award reasonable 
                attorney fees in a case settled before the issuance of 
                an order if the person can demonstrate that significant 
                attorney fees were incurred and that justice requires 
                such an award.''.
          (2) Federal circuit actions.--Subsection (d) of such section 
        is amended by adding at the end the following new paragraph:
  ``(3) In such Federal Circuit proceeding, the court shall award such 
person reasonable attorney fees, expert witness fees, and other 
litigation expenses if such person--
          ``(A) prevails in such Federal Circuit proceeding; and
          ``(B) is not represented by the Special Counsel in such 
        Federal Circuit proceeding.''.
          (3) Actions against a state or private employer.--Paragraph 
        (2) of section 4323(h) of such title is amended--
                  (A) by striking ``subsection (a)(2)'' and inserting 
                ``subsection (a)(3)''; and
                  (B) by striking ``the court may award any such person 
                who prevails in such action or proceeding reasonable 
                attorney fees'' and inserting ``the court shall award 
                any such person who prevails in such action or 
                proceeding reasonable attorney fees''.
  (f) GAO Review and Report on USERRA.--
          (1) Review.--The Comptroller General of the United States 
        shall review the methods through which the Secretary of Labor, 
        acting through the Veterans' Employment and Training Service, 
        processes actions for relief under chapter 43 of title 38, 
        United States Code.
          (2) Elements.--Not later than one year after the date of the 
        enactment of this Act, the Comptroller General shall submit to 
        the Committees on Veterans' Affairs of the House of 
        Representatives and the Senate a report that includes--
                  (A) the findings of the review required under 
                paragraph (1);
                  (B) an identification of the number of actions for 
                relief under chapter 43 of title 38, United States 
                Code, initiated during the period covered by the 
                report, disaggregated by size of employer and 
                geographic region;
                  (C) an identification of the number of such actions 
                for relief that were erroneously dismissed, as 
                determined by the Comptroller General;
                  (D) an identification of the number of such actions 
                for relief that were referred to the Department of 
                Justice; and
                  (E) an assessment of trends, if any, in such actions 
                for relief initiated during such period.
  (g) GAO Review of Protections for Members of the Uniformed Services 
by Federal Intelligence Agencies.--
          (1) In general.--Not later than one year after the date of 
        the enactment of this Act, the Comptroller General of the 
        United States shall submit to the appropriate congressional 
        committees a report on the processes and procedures adopted and 
        used by the intelligence community to provide the protections 
        for members of the uniformed services otherwise established 
        under chapter 43 of title 38, United States Code.
          (2) Definitions.--In this subsection:
                  (A) The term ``appropriate congressional committees'' 
                means the Committees on Veterans' Affairs of the House 
                of Representatives and Senate, the Permanent Select 
                Committee on Intelligence of the House of 
                Representatives, and the Select Committee on 
                Intelligence of the Senate.
                  (B) The term ``intelligence community'' has the 
                meaning given such term in section 3(4) of the National 
                Security Act of 1947 (50 U.S.C. 3003(4)).

SEC. 3. REVIEW OF INVESTIGATIONS MANUAL OF VETERANS' EMPLOYMENT AND 
                    TRAINING SERVICE.

  (a) In General.--Not later than one year after the date of the 
enactment of this Act, and once every two years thereafter for the 
period of five years beginning on such date, the Secretary of Labor, 
shall review the manual of the Department of Labor titled ``Veterans' 
Employment and Training Service Investigations Manual: USERRA, VEOA, 
and VP'' (or a successor manual) and make such revisions to such manual 
as the Secretary determines appropriate.
  (b) Report.--Not later than 90 days after any date on which the 
Secretary completes a review required under subsection (a), the 
Secretary shall submit to the Committees on Veterans' Affairs of the 
House of Representatives and the Senate--
          (1) a report that includes a description of any revision to 
        such manual made pursuant to such review; and
          (2) a copy of the entire such manual which--
                  (A) shall be provided to the Chairman and Ranking 
                Member of each such committee; and
                  (B) may contain a separate addendum for portions of 
                the manual that contain law enforcement sensitive 
                materials.

                          Purpose and Summary

    H.R. 3943, the ``Servicemember Employment Protection Act of 
2023'' was introduced by Representative Franklin of Florida on 
June 9, 2023. H.R. 3943, as amended, would update, and improve 
the employment and reemployment rights of members of the Armed 
Forces. This legislation would allow reimbursement of attorney 
fees for servicemembers with successful cases, would expand 
potential liquidated damages against an employer in cases that 
are not able to be resolved by the Department of Labor 
mediation process, and would allow the use of injunctive relief 
in certain cases. The bill would also mandate that the 
Secretary of Labor review the manual governing Uniformed 
Services Employment and Reemployment Rights Act of 1994 
(USERRA) procedures and provide a report to Congress detailing 
any revisions made to the USERRA manual.

                  Background and Need for Legislation


Section 1: Short title

    This Act may be cited as the ``Servicemember Employment 
Protection Act of 2023.''

Section 2: Improvements to reemployment rights of members of the armed 
        forces

    USERRA is a federal law that establishes rights and 
responsibilities for uniformed servicemembers and their 
civilian employers. This law is intended to ensure that people 
serving in the Armed Forces, Reserve, or National Guard are not 
disadvantaged in their civilian careers because they were 
ordered to Federal active duty. It also ensures they are 
promptly reemployed in their civilian jobs once they return 
from duty. Finally, USERRA protects servicemembers so that they 
are not discriminated against while seeking employment, or once 
they have already gained employment. All businesses, as well as 
most sectors of the Federal government and state governments 
must follow USERRA.
    If a servicemember files an USERRA complaint, the 
Department of Labor Veterans Employment and Training Service 
(DOL-VETS) will review and investigate the case and work with 
the employer and servicemember to come to a resolution. If they 
cannot come to a resolution, a servicemember may have the 
option of seeking representation from either the Office of 
Special Counsel (if the complaint involves a federal executive 
agency) or the U.S. Department of Justice (if the complaint 
involves a state, local, or private employer).
    Throughout the process, a servicemember may also choose to 
file an action with the Merit Systems Protection Board (MSPB) 
(if the complaint involves a federal executive agency) or in 
federal or state court (if the complaint involves a state, 
local, or private employer).
    This section would provide protections for servicemembers 
who are unable to achieve a resolution and choose to bring a 
USERRA action in state or federal court or with MSPB.
    In these cases, and under current law, the servicemember 
may need to hire an attorney to represent their interest in 
court or before the board and frequently are not reimbursed for 
these costs under current law. This section would require that 
a servicemember be awarded attorney's fees and other expenses 
in cases brought in court or before the MSPB.
    In certain circumstances, this legislation would also allow 
the court to provide injunctive relief to a servicemember to 
minimize the harm suffered by the servicemember such as the 
loss of wages. The Committee understands that injunctive relief 
will not be necessary or appropriate in all cases and has 
specifically outlined the appropriate test in the statute. 
Under the statute, injunctive relief will only be appropriate 
in circumstances where it is likely that the servicemember will 
likely win on the merits. In those circumstances, the Committee 
believes that a servicemember should not be delayed relief. The 
legislation would also allow a servicemember to collect 
interest on any lost wages awarded and would allow the court to 
award damages in certain cases. The Committee believes that 
these changes are necessary to ensure that a servicemember who 
has been called on to serve the country should be made 
financially whole if they bring a successful claim under 
USERRA.
    The Subcommittee on Economic Opportunity heard concerns 
during a USERRA oversight hearing on March 9, 2023, regarding 
how DOL-VETS handles USERRA cases, including potentially 
turning away servicemembers with potentially meritorious 
claims. As part of the Committee's continued oversight of 
USERRA, this section also would also require the General 
Accountability Office (GAO) to review the processes and 
procedures that DOL-VETS utilizes to administer its authority 
under USERRA as well as a breakdown of the number of cases 
resolved by the DOL-VETS, the number of cases that are referred 
to the Department of Justice, and an assessment of the 
characteristics and trends of the actions for relief.
    The Committee acknowledges that there are difficulties in 
bringing the intelligence community under USERRA; however, the 
intelligence agencies were left out of the original legislation 
with the understanding that those agencies would develop and 
administer procedures similar to USERRA to protect the rights 
of the servicemembers. As part of the Committee's continued 
oversight of USERRA, this section would also require the GAO to 
review the processes and procedures the intelligence community 
has implemented to comply with the spirit of USERRA.

Sec. 3. Review of investigations manual of veterans' employment and 
        training service

    During the aforementioned hearing on USERRA, witnesses 
raised concerns about how frequently the USERRA manual was 
updated and whether it reflected current laws and procedures 
for investigating claims. The Subcommittee Chairman and Ranking 
Member specifically requested that DOL-VETS provide the 
Subcommittee with a copy of the manual. DOL-VETS provided a 
redacted copy of the manual to the Members and staff of the 
Subcommittee and allowed supervised review of the redacted 
portions. This section would require the Secretary to review 
the USERRA investigations manual annually and update it as 
needed. It would also require the Secretary to provide an 
unredacted manual to the Committee on Veterans Affairs for a 
five-year period and allow the DOL-VETS to provide portions of 
the manual in an addendum if there are concerns about certain 
information that may be law enforcement sensitive in the 
manual.

                                Hearings

    On June 14, 2023, the Subcommittee on Economic Opportunity 
held a legislative hearing on H.R. 3943 and other bills that 
were pending before the subcommittee.
    The following witnesses testified:
    Mr. Joseph Garcia, Executive Director of Education Service, 
U.S. Department of Veterans Affairs; Ms. Melissa Cohen, Deputy 
Executive Director of Outreach, Transition, and Economic 
Development, U.S. Department of Veterans Affairs; Ms. Monica 
Diaz, Executive Director, Office of Homeless Programs, U.S. 
Department of Veterans Affairs; Mr. James Rodriguez, Assistant 
Secretary for Veterans' Employment and Training Service, U.S. 
Department of Labor; Mr. Paul Marone, USERRA Policy Chief for 
Veterans' Employment and Training Service, U.S. Department of 
Labor; Mr. Patrick Murray, Director, National Legislative 
Service, Veterans of Foreign Wars of the United States; Mr. 
Ricardo Gomez, Employment and Education Policy Associate, The 
American Legion; Mr. Matthew Schwartzman, Director, Legislation 
and Military Policy, Reserve Organization of America; Ms. 
Meredith M. Smith, Government Relations Deputy Director, 
National Military Family Association, and Mr. Kevin Hollinger, 
Legislative Director, Enlisted Association of the National 
Guard of the United States.
    The following individuals and organizations submitted 
statements for the record:
    Helping Veterans and Families of Indiana, The American 
Legion Department of California, Disabled American Veterans 
Department of California, Veterans Education Success, Nation's 
Finest, New England Center and Home for Veterans, 
Representative Morgan McGarvey of Kentucky, Volunteers of 
America of Los Angeles, U.S. VETS Long Beach, Family & 
Community Services Inc, U.S. VETS Prescott, U.S. VETS 
Inglewood, Veterans Integration Centers, U.S. VETS Inland 
Empire, Operation Dignity, and the Alston Wilkes Society.

                       Subcommittee Consideration

    On July 19, 2023, the Subcommittee on Economic Opportunity 
held a markup on the legislation included in the text of this 
bill.
    An amendment in the nature of a substitute to HR 3943, 
offered by Rep. Franklin, was adopted by voice vote, and the 
bill was ordered favorably forwarded to the full Committee on 
Veterans Affairs. The amendment in the nature of a substitute 
made technical changes offered by DOL-VETS and increased 
reporting requirements on the USERRA manual.

                        Committee Consideration

    On July 27, 2023, the full Committee met in open markup 
session, a quorum being present, and ordered H.R. 3943, as 
amended, be reported favorably to the House of Representatives 
by voice vote.
    During consideration of the bill, an amendment in the 
nature of a substitute offered by Rep. Franklin was adopted by 
voice vote. The amendment in the nature of a substitute made 
technical changes to the legislation. A motion by Ranking 
Member Takano to report H.R. 3943, as amended, favorably to the 
House of Representatives was agreed to by voice vote.
    An amendment to the amendment in the nature of a substitute 
offered by Ranking Member Takano was offered to prevent forced 
arbitration from being used in USERRA cases. The legislation 
was similar to H.R. 2195, the ``Protecting the Employment 
Rights of Servicemembers act'' introduced by Rep. David 
Cicilline in the 117th Congress. The amendment to the amendment 
in the nature of a substitute was not agreed to by a recorded 
vote of 13-12.

                            Committee Votes

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, 1 recorded vote was taken on 
amendments or in connection with ordering H.R. 3943 as amended, 
reported to the House. During consideration of the bill, an 
amendment to the amendment in the nature of a substitute 
offered by Ranking Member Takano was offered to prevent forced 
arbitration from being used in USERRA cases. The amendment to 
the amendment in the nature of a substitute was not agreed to 
by a recorded vote of 13-12.

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII and clause 
(2)(b)(1) of rule X of the Rules of the House of 
Representatives, the Committee's oversight findings and 
recommendations are reflected in the descriptive portions of 
this report.

         Statement of General Performance Goals and Objectives

    In accordance with clause 3(c)(4) of rule XIII of the Rules 
of the House of Representatives, the Committee's performance 
goals and objectives of H.R. 3943, as amended, are to provide 
additional opportunities for education and training for 
veterans and improve the lives of veterans generally.

                  Earmarks and Tax and Tariff Benefits

    H.R. 3943, as amended, does not contain any Congressional 
earmarks, limited tax benefits, or limited tariff benefits as 
defined in clause 9 of rule XXI of the Rules of the House of 
Representatives.

                        Committee Cost Estimate

    The Committee adopts as its own the Congressional Budget 
Office cost estimate on this measure.

            Budget Authority and Congressional Budget Office
                             Cost Estimate

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    H.R. 3943 would increase the legal fees, damages, and other 
remedies that courts or, in the case of complaints against 
federal agencies, the Merit Systems Protection Board, could 
award to employees who are seeking to enforce their rights 
under the Uniformed Services Employment and Reemployment Rights 
Act (USERRA).
    USERRA generally prohibits employment discrimination based 
on service in the uniformed services, provides reemployment 
rights after qualifying service, and protects employees from 
retaliation for exercising their rights under the act. 
Employers are required to provide employees who are absent from 
work because of qualifying service the same status and 
compensation as if they were continuously employed. That 
requirement applies to private employers, state and local 
governments, and federal agencies. The Departments of Labor 
(DOL), Defense, and Justice and the Office of Special Counsel 
collaboratively support and enforce USERRA, and those agencies 
reviewed approximately 2,100 unique cases during 2021.
    Using publicly available information, CBO expects that few 
cases would arise from violations of USERRA by federal 
agencies. Thus, CBO estimates that the additional costs from 
enacting H.R. 3943 for agencies that rely on discretionary 
appropriations would not be significant over the 2024-2028 
period. Enacting the bill also would affect direct spending by 
agencies that are allowed to use fees, receipts from the sale 
of goods, and other collections to cover operating costs; CBO 
estimates that any net changes in direct spending by those 
agencies would be negligible both because few cases would arise 
and because most of the agencies can adjust amounts collected 
to reflect changes in operating costs.
    H.R. 3943 also would require the DOL to biennially review 
and revise its procedures to investigate USERRA complaints and 
submit a report concerning those procedures and revisions to 
the Congress. Additionally, the bill would require the 
Government Accountability Office to review and report to the 
Congress on DOL's methods to process relief actions under 
USERRA and provide a confidential briefing and report to the 
Congress on the procedures adopted by the intelligence 
community to provide its employees the protections under 
USERRA. Based on the costs of similar activities, CBO estimates 
that satisfying those reporting requirements would cost $1 
million over the 2023-2028 period; any spending would be 
subject to the availability of appropriated funds.
    H.R. 3943 would impose an intergovernmental and private-
sector mandate as defined in the Unfunded Mandates Reform Act 
(UMRA) by adding ``other retaliatory acts'' to the list of 
prohibited actions by employers of service members protected 
under USERRA. Current law prevents employers from 
discriminating against or taking other adverse employment 
actions against those employees. CBO estimates that the cost of 
compliance would fall well below the thresholds established in 
UMRA for intergovernmental and private-sector mandates ($99 
million and $198 million in 2023, respectively, adjusted 
annually for inflation).
    The CBO staff contacts for this estimate are Paul B.A. 
Holland (veterans' benefits), Matthew Pickford (general 
government) and Brandon Lever (for public and private 
mandates). The estimate was reviewed by Christina Hawley 
Anthony, Deputy Director of Budget Analysis.
                                         Phillip L. Swagel,
                             Director, Congressional Budget Office.

                       Federal Mandates Statement

    Section 423 of the Congressional Budget and Impoundment 
Control Act (as amended by Section 101(a)(2) of the Unfunded 
Mandate Reform Act, P.L. 104-4 is inapplicable to H.R. 3943, as 
amended.

                      Advisory Committee Statement

    No advisory committees within the meaning of section 5(b) 
of the Federal Advisory Committee Act would be created by H.R. 
3943, as amended.

                  Applicability to Legislative Branch

    The Committee finds that H.R. 3943, as amended, does not 
relate to the terms and conditions of employment or access to 
public services or accommodations within the meaning of section 
102(b)(3) of the Congressional Accountability Act.

              Statement on Duplication of Federal Programs

    Pursuant to clause 3(c)(5) of rule XIII of the Rules of the 
House of Representatives, the Committee finds that no provision 
of H.R. 3943, as amended, would establish or reauthorize a 
program of the Federal Government known to be duplicative of 
another Federal program, a program that was included in any 
report from the Government Accountability Office to Congress 
pursuant to section 21 of Public Law 111-139, or a program 
related to a program identified in the most recent Catalog of 
Federal Domestic Assistance.

             Section-by-Section Analysis of the Legislation


Section 1. Short title

    Section 1 would establish the short title of the bill as 
the ``Servicemember Employment Protection Act of 2023.''

Section 2. Improvements to reemployment rights of members of the Armed 
        Forces.

    This section would amend 38 U.S.C. 4323 and 4324 to improve 
the reemployment rights of members of the Armed Services by 
modernizing USERRA. It would change current law to require 
reimbursement of attorney fees and expert witness fees, if 
applicable, for successful cases, allow for liquidated damages 
against an employer in cases brought in court, and would allow 
the use of injunctive relief in certain cases.
    Section 2 would also require the GAO to examine the results 
of claims brought to the Department of Labor. Under this 
section GAO would be required to (1) identify the number of 
actions for relief under USERRA initiated during the period 
covered by the report, disaggregated by employer 
characteristics, including size and geographic region; (2) 
identify the number of such actions for relief that were 
dismissed, including the characteristics of such actions and 
reasons for dismissal; (3) identify the number of such actions 
for relief that were referred to the Department of Justice; and 
(4) provide an assessment of trends, if any, in such actions 
for relief initiated during such period.
    Finally, this section would require the GAO to report on 
the use of procedures in the intelligence agencies similar to 
procedures used by non-intelligence community agencies to 
conform with USERRA laws.

Sec. 3. Review of investigations manual of Veterans' employment and 
        training service.

    This section would require the Secretary of Labor to review 
the current USERRA manual and provide a report to Congress 
detailing any necessary revisions to the USERRA manual. It 
would also require the Secretary to provide the manual itself 
to the Committee, allowing for a separate addendum for law 
enforcement sensitive information as needed.

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italics, existing law in which no change 
is proposed is shown in roman):

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italics, and existing law in which no 
change is proposed is shown in roman):

                      TITLE 38, UNITED STATES CODE



           *       *       *       *       *       *       *
PART III--READJUSTMENT AND RELATED BENEFITS

           *       *       *       *       *       *       *


   CHAPTER 43--EMPLOYMENT AND REEMPLOYMENT RIGHTS OF MEMBERS OF THE 
UNIFORMED SERVICES

           *       *       *       *       *       *       *


                         SUBCHAPTER I--GENERAL

Sec. 4301. Purposes; sense of Congress

  (a) The purposes of this chapter are--
          (1) to [encourage noncareer service in the uniformed 
        services] encourage service in the uniformed services 
        by eliminating or minimizing the disadvantages to 
        civilian careers and employment which can result from 
        such service;
          (2) to minimize the disruption to the lives of 
        persons performing service in the uniformed services as 
        well as to their employers, their fellow employees, and 
        their communities, by providing for the prompt 
        reemployment of such persons upon their completion of 
        such service; and
          (3) to prohibit discrimination against persons 
        because of their service in the uniformed services.
  (b) It is the sense of Congress that the Federal Government 
should be a model employer in carrying out the provisions of 
this chapter.

           *       *       *       *       *       *       *


  SUBCHAPTER II--EMPLOYMENT AND REEMPLOYMENT RIGHTS AND LIMITATIONS; 
                              PROHIBITIONS

Sec. 4311. Discrimination against persons who serve in the uniformed 
                    services and acts of reprisal prohibited

  (a) A person who is a member of, applies to be a member of, 
performs, has performed, applies to perform, or has an 
obligation to perform service in a uniformed service shall not 
be denied initial employment, reemployment, retention in 
employment, promotion, or any benefit of employment by an 
employer on the basis of that membership, application for 
membership, performance of service, application for service, or 
obligation.
  (b) An employer may not discriminate in employment against or 
take any adverse employment action or other retaliatory action 
against any person because such person (1) has taken an action 
to enforce a protection afforded any person under this chapter, 
(2) has testified or otherwise made a statement in or in 
connection with any proceeding under this chapter, (3) has 
assisted or otherwise participated in an investigation under 
this chapter, or (4) has exercised a right provided for in this 
chapter. The prohibition in this subsection shall apply with 
respect to a person regardless of whether that person has 
performed service in the uniformed services.
  (c) An employer shall be considered to have engaged in 
actions prohibited--
          (1) under subsection (a), if the person's membership, 
        application for membership, service, application for 
        service, or obligation for service in the uniformed 
        services is a motivating factor in the employer's 
        action, unless the employer can prove that the action 
        would have been taken in the absence of such 
        membership, application for membership, service, 
        application for service, or obligation for service; or
          (2) under subsection (b), if the person's (A) action 
        to enforce a protection afforded any person under this 
        chapter, (B) testimony or making of a statement in or 
        in connection with any proceeding under this chapter, 
        (C) assistance or other participation in an 
        investigation under this chapter, or (D) exercise of a 
        right provided for in this chapter, is a motivating 
        factor in the employer's action, unless the employer 
        can prove that the action would have been taken in the 
        absence of such person's enforcement action, testimony, 
        statement, assistance, participation, or exercise of a 
        right.
  (d) The prohibitions in subsections (a) and (b) shall apply 
to any position of employment, including a position that is 
described in section 4312(d)(1)(C) of this title.

           *       *       *       *       *       *       *


      SUBCHAPTER III--PROCEDURES FOR ASSISTANCE, ENFORCEMENT, AND 
INVESTIGATION

           *       *       *       *       *       *       *


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. 
Not later than 60 days after the Secretary receives such a 
request with respect to a complaint, the Secretary shall 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) Not later than 60 days after the date the Attorney 
General receives a referral under paragraph (1), the Attorney 
General shall--
          (A) make a decision whether to appear on behalf of, 
        and act as attorney for, the person on whose behalf the 
        complaint is submitted; and
          (B) notify such person in writing of such decision.
  (3) 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.]
          (C) The court may require the employer to pay the 
        person the amount referred to in subparagraph (B) and 
        interest on such amount, calculated at a rate of 3 
        percent per year.
          (D) The court may require the employer to pay the 
        person the greater of $50,000 or the amount equal to 
        the amounts referred to in subparagraphs (B) and (C) as 
        liquidated damages, if the court determines that the 
        employer knowingly failed to comply with the provisions 
        of this chapter.
  (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 3 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 shall use] (1) The court shall 
use, in any case in which the court determines it is 
appropriate, 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.
  (2) A person bringing an action to enforce a provision of 
this chapter pursuant to subsection (a) shall be entitled to an 
injunction under paragraph (1) if such person demonstrates--
          (A) a violation--
                  (i) of the provisions of this chapter; or
                  (ii) of the provisions of this chapter is 
                threatened or is imminent;
          (B) the harm to the person outweighs the injury to 
        the employer;
          (C) a likelihood of success on the merits of such 
        action; and
          (D) awarding such relief is in the public interest.
  (3) The court may not deny a motion for injunctive relief on 
the basis that a party bringing an action to enforce a 
provision of this chapter may be awarded wages unearned due to 
an unlawful termination or denial of employment at the 
conclusion of such action.
  (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)] subsection 
(a)(3) 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] the 
court shall award any such person who prevails in such action 
or proceeding reasonable attorney fees, expert witness fees, 
and other litigation expenses.
  (i) Definition.--In this section, the term ``private 
employer'' includes a political subdivision of a State.

Sec. 4324. Enforcement of rights with respect to Federal executive 
                    agencies

  (a)(1) A person who receives from the Secretary a 
notification pursuant to section 4322(e) may request that the 
Secretary refer the complaint for litigation before the Merit 
Systems Protection Board. Not later than 60 days after the date 
the Secretary receives such a request, the Secretary shall 
refer the complaint to the Office of Special Counsel 
established by section 1211 of title 5.
  (2)(A) If the Special Counsel is reasonably satisfied that 
the person on whose behalf a complaint is referred under 
paragraph (1) is entitled to the rights or benefits sought, the 
Special Counsel (upon the request of the person submitting the 
complaint) may appear on behalf of, and act as attorney for, 
the person and initiate an action regarding such complaint 
before the Merit Systems Protection Board.
  (B) Not later than 60 days after the date the Special Counsel 
receives a referral under paragraph (1), the Special Counsel 
shall--
          (i) make a decision whether to represent a person 
        before the Merit Systems Protection Board under 
        subparagraph (A); and
          (ii) notify such person in writing of such decision.
  (b) A person may submit a complaint against a Federal 
executive agency or the Office of Personnel Management under 
this subchapter directly to the Merit Systems Protection Board 
if that person--
          (1) has chosen not to apply to the Secretary for 
        assistance under section 4322(a);
          (2) has received a notification from the Secretary 
        under section 4322(e);
          (3) has chosen not to be represented before the Board 
        by the Special Counsel pursuant to subsection 
        (a)(2)(A); or
          (4) has received a notification of a decision from 
        the Special Counsel under subsection (a)(2)(B) 
        declining to initiate an action and represent the 
        person before the Merit Systems Protection Board.
  (c)(1) The Merit Systems Protection Board shall adjudicate 
any complaint brought before the Board pursuant to subsection 
(a)(2)(A) or (b), without regard as to whether the complaint 
accrued before, on, or after October 13, 1994. A person who 
seeks a hearing or adjudication by submitting such a complaint 
under this paragraph may be represented at such hearing or 
adjudication in accordance with the rules of the Board.
  (2) If the Board determines that a Federal executive agency 
or the Office of Personnel Management has not complied with 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 for any loss of wages 
or benefits suffered by such person by reason of such lack of 
compliance.
  (3) Any compensation received by a person pursuant to an 
order under paragraph (2) shall be in addition to any other 
right or benefit provided for by this chapter and shall not 
diminish any such right or benefit.
  (4) If the Board determines as a result of a hearing or 
adjudication conducted pursuant to a complaint submitted by a 
person directly to the Board pursuant to subsection (b) that 
such person is entitled to an order referred to in paragraph 
(2), the Board [may, in its discretion,] shall award such 
person reasonable attorney fees, expert witness fees, and other 
litigation expenses. The Board may, in its discretion, award 
reasonable attorney fees in a case settled before the issuance 
of an order if the person can demonstrate that significant 
attorney fees were incurred and that justice requires such an 
award.
  (d)(1) A person adversely affected or aggrieved by a final 
order or decision of the Merit Systems Protection Board under 
subsection (c) may petition the United States Court of Appeals 
for the Federal Circuit to review the final order or decision. 
Such petition and review shall be in accordance with the 
procedures set forth in section 7703 of title 5.
  (2) Such person may be represented in the Federal Circuit 
proceeding by the Special Counsel unless the person was not 
represented by the Special Counsel before the Merit Systems 
Protection Board regarding such order or decision.
  (3) In such Federal Circuit proceeding, the court shall award 
such person reasonable attorney fees, expert witness fees, and 
other litigation expenses if such person--
          (A) prevails in such Federal Circuit proceeding; and
          (B) is not represented by the Special Counsel in such 
        Federal Circuit proceeding.

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