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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.CommentsClose CommentsPermalink

January 15, 2009CommentsClose CommentsPermalink

Mr. CASEY (for himself and Mr. KENNEDY) introduced the following bill; which was read twice and referred to the Committee on Veterans’ AffairsCommentsClose CommentsPermalink

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.CommentsClose CommentsPermalink

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,CommentsClose CommentsPermalink

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘Servicemembers Access to Justice Act of 2009’.CommentsClose CommentsPermalink

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--CommentsClose CommentsPermalink





(1) in subsection (b) by striking paragraph (2) and inserting the following new paragraph:CommentsClose CommentsPermalink





‘(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.’;CommentsClose CommentsPermalink





(2) by redesignating subsection (i) as subsection (j); andCommentsClose CommentsPermalink





(3) by inserting after subsection (h) the following new subsection:CommentsClose CommentsPermalink





‘(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--CommentsClose CommentsPermalink





‘(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;CommentsClose CommentsPermalink





‘(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; orCommentsClose CommentsPermalink





‘(C) a person seeking reemployment as an employee in that program or activity for the rights or benefits authorized the person by this chapter.CommentsClose CommentsPermalink





‘(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).’.CommentsClose CommentsPermalink





(b) Application- The amendments made by subsection (a) shall apply to--CommentsClose CommentsPermalink





(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; andCommentsClose CommentsPermalink





(2) to all actions or complaints filed under such chapter 43 that are commenced after the date of the enactment of this Act.CommentsClose CommentsPermalink

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:CommentsClose CommentsPermalink

‘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.CommentsClose CommentsPermalink





‘(b) Exceptions-CommentsClose CommentsPermalink





‘(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.CommentsClose CommentsPermalink





‘(2) COLLECTIVE BARGAINING AGREEMENTS- Subsection (a) shall not preclude the enforcement of any of the rights or terms of a valid collective bargaining agreement.CommentsClose CommentsPermalink





‘(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.CommentsClose CommentsPermalink





‘(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.’.CommentsClose CommentsPermalink





(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:CommentsClose CommentsPermalink





‘4328. Unenforceability of agreements to arbitrate disputes.’.CommentsClose CommentsPermalink





(c) Application- The provisions of section 4328 of title 38, United States Code, as added by subsection (a), shall apply to--CommentsClose CommentsPermalink





(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; andCommentsClose CommentsPermalink





(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.CommentsClose CommentsPermalink

SEC. 4. ENHANCED REMEDIES FOR ENFORCEMENT OF USERRA.

(a) State and Private Employers- Section 4323(d) of title 38, United States Code, is amended--CommentsClose CommentsPermalink





(1) by redesignating paragraphs (2) and (3) as paragraphs (4) and (5), respectively;CommentsClose CommentsPermalink





(2) in paragraph (4) (as so redesignated)--CommentsClose CommentsPermalink





(A) by inserting after ‘compensation’ each place it appears the following: ‘or damages’;CommentsClose CommentsPermalink





(B) by striking ‘subparagraph (B) or (C) of paragraph (1)’ the first place it appears and inserting ‘paragraph (1) or (3), or both,’; andCommentsClose CommentsPermalink





(C) by striking ‘subparagraph (B) or (C) of paragraph (1)’ the second place it appears and inserting ‘paragraph (1) or (3), or both’; andCommentsClose CommentsPermalink





(3) by striking the subsection designation and heading and paragraph (1) and inserting the following:CommentsClose CommentsPermalink





‘(d) Remedies- (1) A State or private employer who violates the provisions of this chapter shall be liable to any person affected--CommentsClose CommentsPermalink





‘(A) for damages in the amount of--CommentsClose CommentsPermalink





‘(i) any wages, salary, benefits, or other compensation denied or lost by such person by reason of the violation; orCommentsClose CommentsPermalink





‘(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;CommentsClose CommentsPermalink





‘(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; andCommentsClose CommentsPermalink





‘(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).CommentsClose CommentsPermalink





‘(2) In any action under this section, the court may require the employer to comply with the provisions of this chapter.’.CommentsClose CommentsPermalink





(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:CommentsClose CommentsPermalink





‘(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.’.CommentsClose CommentsPermalink





(c) Right to Jury Trial- Section 4323(d) of such title is further amended by adding at the end the following:CommentsClose CommentsPermalink





‘(6) A person who commences an action under this section shall be entitled to a trial by jury.’.CommentsClose CommentsPermalink





(d) Federal Government Employers- Paragraph (2) of section 4324(c) of such title is amended to read as follows:CommentsClose CommentsPermalink





‘(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--CommentsClose CommentsPermalink





‘(A) for damages in the amount of--CommentsClose CommentsPermalink





‘(i) any wages, salary, benefits, or other compensation denied or lost by such person by reason of the violation; orCommentsClose CommentsPermalink





‘(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;CommentsClose CommentsPermalink





‘(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; andCommentsClose CommentsPermalink





‘(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).’.CommentsClose CommentsPermalink





(e) Application- The amendments made by this section shall apply to--CommentsClose CommentsPermalink





(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; andCommentsClose CommentsPermalink





(2) to all actions or complaints filed under such chapter 43 that are commenced after the date of the enactment of this Act.CommentsClose CommentsPermalink

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’.CommentsClose CommentsPermalink





(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’.CommentsClose CommentsPermalink





(c) Application- The amendments made subsections (a) and (b) shall apply to--CommentsClose CommentsPermalink





(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; andCommentsClose CommentsPermalink





(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.CommentsClose CommentsPermalink

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:CommentsClose CommentsPermalink





‘(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:CommentsClose CommentsPermalink





‘(I) Substantial continuity of the same business operations.CommentsClose CommentsPermalink





‘(II) Use of the same plant.CommentsClose CommentsPermalink





‘(III) Continuity of work force.CommentsClose CommentsPermalink





‘(IV) Similarity of jobs and working conditions.CommentsClose CommentsPermalink





‘(V) Similarity of supervisory personnel.CommentsClose CommentsPermalink





‘(VI) Similarity in machinery, equipment, and production methods.CommentsClose CommentsPermalink





‘(VII) Similarity of products or services.CommentsClose CommentsPermalink





‘(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).’.CommentsClose CommentsPermalink





(b) Application- The amendment made by subsection (a) shall apply to--CommentsClose CommentsPermalink





(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; andCommentsClose CommentsPermalink





(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.CommentsClose CommentsPermalink

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)’.CommentsClose CommentsPermalink





(b) Application- The amendment made by subsection (a) shall apply to--CommentsClose CommentsPermalink





(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; andCommentsClose CommentsPermalink





(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.CommentsClose CommentsPermalink

SEC. 8. REQUIRING EQUITABLE RELIEF WHEN APPROPRIATE.

(a) In General- Section 4323(e) of title 38, United States Code, is amended--CommentsClose CommentsPermalink





(1) by striking ‘The court shall use,’ and inserting ‘(1) The court shall use,’; andCommentsClose CommentsPermalink





(2) by adding at the end the following new paragraph:CommentsClose CommentsPermalink





‘(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)--CommentsClose CommentsPermalink





‘(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;CommentsClose CommentsPermalink





‘(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; andCommentsClose CommentsPermalink





‘(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.’.CommentsClose CommentsPermalink





(b) Application- The amendments made by subsection (a) shall apply to--CommentsClose CommentsPermalink





(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; andCommentsClose CommentsPermalink





(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.CommentsClose CommentsPermalink

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:CommentsClose CommentsPermalink

‘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.’.CommentsClose CommentsPermalink





(b) Armed Forces-CommentsClose CommentsPermalink





(1) IN GENERAL- Chapter 137 of title 10, United States Code, is amended by adding at the end the following new section:CommentsClose CommentsPermalink

‘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.’.CommentsClose CommentsPermalink





(2) CLERICAL AMENDMENT- The table of sections for such chapter is amended by adding at the end the following new item:CommentsClose CommentsPermalink





‘2334. Notice to contractors of potential obligations relating to employment and reemployment of members of the armed forces.’.CommentsClose CommentsPermalink

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.CommentsClose CommentsPermalink

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.CommentsClose CommentsPermalink





(b) Contents of Study- In carrying out the study required by subsection (a), the Comptroller General shall--CommentsClose CommentsPermalink





(1) assess current practices and procedures of Federal agencies for educating employers about their obligations under chapter 43 of title 38, United States Code;CommentsClose CommentsPermalink





(2) identify best practices for bringing the employment practices of small businesses into compliance with such chapter;CommentsClose CommentsPermalink





(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; andCommentsClose CommentsPermalink





(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.CommentsClose CommentsPermalink





(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:CommentsClose CommentsPermalink





(1) The findings of the Comptroller General with respect to such study.CommentsClose CommentsPermalink





(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.CommentsClose CommentsPermalink

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’.CommentsClose CommentsPermalink





(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’.CommentsClose CommentsPermalink





(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’.CommentsClose CommentsPermalink