Uniformed Services Employment and Reemployment Rights Improvement Act of 2016

Summary: Uniformed Services Employment and Reemployment Rights Improvement Act of 2016 This bill revises the enforcement of employment and reemployment rights of members of the Armed Forces with respect to state and private employers. The Department of Justice (DOJ) may initiate an action for relief: (1) with respect to a private or a state employer, and (2) when a state or private employer is engaged in a pattern or practice to infringe upon such rights. A person may bring an action against a state (as an employer), state instrumentality, or state officer or employee acting in his or her official capacity in U.S. district court or state court. The state, instrumentality, officer, or employee shall not be immune from such action under the Eleventh Amendment of the Constitution or under any doctrine of sovereign immunity. No such state, instrumentality, officer, or employee that receives or uses federal financial assistance for a program or activity shall be immune under the Eleventh Amendment or under any other doctrine of sovereign immunity from suit in federal or state court for any violation of such rights related to such program or activity. (Currently, a person may bring such an action against a state only in a state court.)  The venue for an action against a private employer is expanded to include: (1) any district in which a substantial part of the events or omissions giving rise to the claim occurred; or (2) any district in which the employer is subject to the court's personal jurisdiction with respect to such action if there is no district in which an action may otherwise be brought. DOJ may issue civil investigative demands. Service-related disability coverage is extended to include a disability that is brought to the employer's attention within five years after the person resumes employment. The bill provides that the employer has the burden of identifying the appropriate reemployment positions.

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Uniformed Services Employment and 
Reemployment Rights Improvement Act of 2016''.

SEC. 2. ACTION FOR RELIEF IN ENFORCEMENT OF EMPLOYMENT AND REEMPLOYMENT 
              RIGHTS OF MEMBERS OF UNIFORMED SERVICES WITH RESPECT TO A 
              STATE OR PRIVATE EMPLOYER.

    (a) Initiation of Actions.--Paragraph (1) of subsection (a) of 
section 4323 of title 38, United States Code, is amended by striking 
the third sentence and inserting the following new sentences: ``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 commence an action for relief under 
this chapter, including on behalf of the person. The person on whose 
behalf the complaint is referred may, upon timely application, 
intervene in such action and may obtain such appropriate relief as 
provided in subsections (d) and (e).''.
    (b) Attorney General Notice to Servicemember of Decision.--
Paragraph (2) of such subsection is amended to read as follows:
    ``(2)(A) Not later than 60 days after the date the Attorney General 
receives a referral under paragraph (1), the Attorney General shall 
transmit, in writing, to the person on whose behalf the complaint is 
submitted--
            ``(i) if the Attorney General has made a decision about 
        whether the United States will commence an action for relief 
        under paragraph (1) relating to the complaint of the person, 
        notice of the decision; and
            ``(ii) if the Attorney General has not made such a 
        decision, notice of when the Attorney General expects to make 
        such a decision.
    ``(B) If the Attorney General notifies a person of when the 
Attorney General expects to make a decision under subparagraph (A)(ii), 
the Attorney General shall, not later than 30 days after the date on 
which the Attorney General makes such decision, notify, in writing, the 
person of such decision.''.
    (c) Pattern or Practice Cases.--Such subsection is further 
amended--
            (1) by redesignating paragraph (3) as paragraph (4); and
            (2) by inserting after paragraph (2) (as amended by 
        paragraph (2) of this subsection) the following new paragraph 
        (3):
    ``(3) Whenever the Attorney General has reasonable cause to believe 
that a State (as an employer) or a private employer is engaged in a 
pattern or practice of resistance to the full enjoyment of any of the 
rights or benefits secured by this chapter, the Attorney General may 
commence an action under this chapter.''.
    (d) Actions by Private Persons.--Subparagraph (C) of paragraph (4) 
of such subsection, as redesignated by paragraph (3)(A), is amended by 
striking ``refused'' and all that follows and inserting ``notified by 
the Attorney General that the Attorney General does not intend to bring 
a civil action.''.
    (e) Conforming Amendment.--Subsection (h)(2) of such section is 
amended by striking ``subsection (a)(2)'' and inserting ``subsection 
(a)(1) or subsection (a)(4)''.

SEC. 3. WAIVER OF SOVEREIGN IMMUNITY FOR ENFORCEMENT OF EMPLOYMENT AND 
              REEMPLOYMENT RIGHTS OF MEMBERS OF UNIFORMED SERVICES.

    Paragraph (2) of section 4323(b) of title 38, United States Code, 
is amended to read as follows:
    ``(2)(A) In the case of an action against a State (as an employer), 
any instrumentality of a State, or any officer or employee of a State 
or instrumentality of a State acting in that officer or employee's 
official capacity, by any person, the action may be brought in the 
appropriate district court of the United States or in a State court of 
competent jurisdiction, and the State, instrumentality of the State, or 
officer or employee of the State or instrumentality acting in that 
officer or employee's official capacity shall not be immune under the 
Eleventh Amendment of the Constitution, or under any other doctrine of 
sovereign immunity, from such action.
    ``(B)(i) No State, instrumentality of such State, or officer or 
employee of such State or instrumentality of such State, acting in that 
officer or employee's official capacity, that receives or uses Federal 
financial assistance for a program or activity shall be immune, under 
the Eleventh Amendment of the Constitution or under any other doctrine 
of sovereign immunity, from suit in Federal or State court by any 
person for any violation under this chapter related to such program or 
activity.
    ``(ii) In an action against a State brought pursuant to subsection 
(a), a court may award the remedies (including remedies both at law and 
in equity) that are available under subsections (d) and (e).''.

SEC. 4. VENUE FOR CASES AGAINST PRIVATE EMPLOYERS FOR VIOLATIONS OF 
              EMPLOYMENT AND REEMPLOYMENT RIGHTS OF MEMBERS OF 
              UNIFORMED SERVICES.

    Section 4323(c)(2) of title 38, United States Code, is amended by 
striking ``United States district court for any district in which the 
private employer of the person maintains a place of business.'' and 
inserting ``United States district court for--
            ``(A) any district in which the employer maintains a place 
        of business;
            ``(B) any district in which a substantial part of the 
        events or omissions giving rise to the claim occurred; or
            ``(C) if there is no district in which an action may 
        otherwise be brought as provided in subparagraph (A) or (B), 
        any district in which the employer is subject to the court's 
        personal jurisdiction with respect to such action.''.

SEC. 5. STANDING IN CASES INVOLVING VIOLATIONS OF EMPLOYMENT AND 
              REEMPLOYMENT RIGHTS OF MEMBERS OF UNIFORMED SERVICES BY 
              STATES AND PRIVATE EMPLOYERS.

    Section 4323(f) of title 38, United States Code, is amended--
            (1) by inserting ``by the United States or'' after ``may be 
        initiated only''; and
            (2) by striking ``or by the United States under subsection 
        (a)(1)''.

SEC. 6. CIVIL INVESTIGATIVE DEMANDS BY ATTORNEY GENERAL IN ENFORCEMENT 
              OF EMPLOYMENT AND REEMPLOYMENT RIGHTS OF MEMBERS OF 
              UNIFORMED SERVICES WITH RESPECT TO STATES AND PRIVATE 
              EMPLOYERS.

    Section 4323 of title 38, United States Code, is amended--
            (1) by redesignating subsection (i) as subsection (j); and
            (2) by inserting after subsection (h) the following new 
        subsection (i):
    ``(i) Issuance and Service of Civil Investigative Demands by 
Attorney General.--(1) Whenever the Attorney General has reason to 
believe that any person may be in possession, custody, or control of 
any documentary material relevant to an investigation under this 
chapter, the Attorney General may, before commencing a civil action 
under subsection (a), issue in writing and cause to be served upon such 
person, a civil investigative demand requiring--
            ``(A) the production of such documentary material for 
        inspection and copying;
            ``(B) that the custodian of such documentary material 
        answer in writing written questions with respect to such 
        documentary material; or
            ``(C) the production of any combination of such documentary 
        material or answers.
    ``(2) The provisions governing the authority to issue, use, and 
enforce civil investigative demands under section 3733 of title 31 
(known as the `False Claims Act') shall govern the authority to issue, 
use, and enforce civil investigative demands under paragraph (1), 
except that for purposes of that paragraph--
            ``(A) a reference in that section to false claims law 
        investigators or investigations shall be applied as referring 
        to investigators or investigations under this chapter;
            ``(B) a reference to interrogatories shall be applied as 
        referring to written questions, and answers to such need not be 
        under oath;
            ``(C) the statutory definitions for purposes of that 
        section relating to `false claims law' shall not apply; and
            ``(D) provisions of that section relating to qui tam 
        relators shall not apply.''.

SEC. 7. TREATMENT OF DISABILITY DISCOVERED AFTER EMPLOYEE ENTITLED TO 
              REEMPLOYMENT BY REASON OF UNIFORMED SERVICE STATUS 
              RESUMES EMPLOYMENT.

    Section 4313(a)(3) of title 38, United States Code, is amended, in 
the matter before subparagraph (A), by inserting ``including a 
disability that is brought to the employer's attention within 5 years 
after the person resumes employment,'' after ``during, such service,''.

SEC. 8. BURDEN OF IDENTIFYING PROPER REEMPLOYMENT POSITIONS FOR 
              EMPLOYEES ENTITLED TO REEMPLOYMENT BY REASON OF UNIFORMED 
              SERVICE STATUS.

    Section 4313 of title 38, United States Code, is amended by adding 
at the end the following new subsection:
    ``(c) For purposes of this section, the employer shall have the 
burden of identifying the appropriate reemployment positions.''.