II 

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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Servicemembers Access 

5 to Justice Act of 2012’’. 


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1 SEC. 2. WAIVER OF SOVEREIGN IMMUNITY UNDER THE 

2 11TH AMENDMENT WITH RESPECT TO EN3 FORCEMENT OF EMPLOYMENT AND REEM4 PLOYMENT RIGHTS OF MEMBERS OF THE 

5 UNIFORMED SERVICES. 

6 (a) IN GENERAL.—Section 4323 of title 38, United 

7 States Code, is amended— 

8 (1) in subsection (b), by striking paragraph (2) 

9 and inserting the following new paragraph: 

10 ‘‘(2) In the case of an action against a State (as an 

11 employer) by a person, the action may be brought in the 

12 appropriate district court of the United States or State 

13 court of competent jurisdiction.’’; 

14 (2) by redesignating subsection (i) as subsection 

15 (j); and 

16 (3) by inserting after subsection (h) the fol17 lowing new subsection: 

18 ‘‘(i) WAIVER OF STATE SOVEREIGN IMMUNITY.—(1) 

19 A State’s receipt or use of Federal financial assistance for 

20 any program or activity of a State shall constitute a waiver 

21 of sovereign immunity, under the 11th amendment to the 

22 Constitution or otherwise, to a suit brought by— 

23 ‘‘(A) a person who is or was an employee in 

24 that program or activity for the rights or benefits 

25 authorized the person by this chapter; 


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1 ‘‘(B) a person applying to be such an employee 

2 in that program or activity for the rights or benefits 

3 authorized the person by this chapter; or 

4 ‘‘(C) a person seeking reemployment as an em5 ployee in that program or activity for the rights or 

6 benefits authorized the person by this chapter. 

7 ‘‘(2) In this subsection, the term ‘program or activity’ 

8 has the meaning given that term in section 309 of the 

9 Age Discrimination Act of 1975 (42 U.S.C. 6107).’’. 

10 (b) APPLICATION.—The amendments made by sub11 section (a) shall apply to— 

12 (1) any failure to comply with a provision of or 

13 any violation of chapter 43 of title 38, United States 

14 Code, that occurs before, on, or after the date of the 

15 enactment of this Act; and 

16 (2) to all actions or complaints filed under such 

17 chapter 43 that are commenced after the date of the 

18 enactment of this Act. 

19 SEC. 3. UNENFORCEABILITY OF AGREEMENTS TO ARBI20 TRATE DISPUTES REGARDING EMPLOYMENT 

21 AND REEMPLOYMENT RIGHTS OF MEMBERS 

22 OF THE UNIFORMED SERVICES. 

23 (a) IN GENERAL.—Subchapter III of chapter 43 of 

24 title 38, United States Code, is amended by adding at the 

25 end the following new section: 


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1 ‘‘§ 4328. Unenforceability of agreements to arbitrate 

2 disputes 

3 ‘‘(a) PROTECTION OF EMPLOYEE RIGHTS.—Notwith4 standing any other provision of law, any clause of any 

5 agreement between an employer and an employee that re6 quires arbitration of a dispute arising under this chapter 

7 shall not be enforceable. 

8 ‘‘(b) EXCEPTIONS.—(1) Subsection (a) shall not 

9 apply with respect to any dispute if, after such dispute 

10 arises, the parties involved knowingly and voluntarily 

11 agree to submit such dispute to arbitration. 

12 ‘‘(2) Subsection (a) shall not preclude the enforce13 ment of any of the rights or terms of a valid collective 

14 bargaining agreement. 

15 ‘‘(c) VALIDITY AND ENFORCEMENT.—Any issue as to 

16 whether this section applies to an arbitration clause shall 

17 be determined by Federal law. Except as otherwise pro18 vided in chapter 1 of title 9, the validity or enforceability 

19 of an agreement to arbitrate referred to in subsection (a) 

20 or (b)(1), shall be determined by a court, rather than the 

21 arbitrator, irrespective of whether the party resisting arbi22 tration challenges the agreement to arbitrate specifically 

23 or in conjunction with other terms of the agreement. 

24 ‘‘(d) APPLICATION.—This section shall apply with re25 spect to all contracts and agreements between an employer 


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1 and an employee in force before, on, or after the date of 

2 the enactment of this section.’’. 

3 (b) CLERICAL AMENDMENT.—The table of sections 

4 for such chapter is amended by inserting after the item 

5 relating to section 4326 the following new item: 

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

6 (c) APPLICATION.—The provisions of section 4328 of 

7 title 38, United States Code, as added by subsection (a), 

8 shall apply to— 

9 (1) any failure to comply with a provision of or 

10 any violation of chapter 43 of title 38, United States 

11 Code, that occurs before, on, or after the date of the 

12 enactment of this Act; and 

13 (2) to all actions or complaints filed under such 

14 chapter 43 that are pending on or after the date of 

15 the enactment of this Act. 

16 SEC. 4. ENHANCED REMEDIES FOR ENFORCEMENT OF EM17 PLOYMENT AND REEMPLOYMENT RIGHTS OF 

18 MEMBERS OF THE UNIFORMED SERVICES. 

19 (a) STATE AND PRIVATE EMPLOYERS.—Section 

20 4323(d) of title 38, United States Code, is amended— 

21 (1) by redesignating paragraphs (2) and (3) as 

22 paragraphs (4) and (5), respectively; 

23 (2) in paragraph (4) (as so redesignated)— 

24 (A) by inserting after ‘‘compensation’’ each 

25 place it appears the following: ‘‘or damages’’; 


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1 (B) by striking ‘‘subparagraph (B) or (C) 

2 of paragraph (1)’’ the first place it appears and 

3 inserting ‘‘paragraph (1) or (3)’’; and 

4 (C) by striking ‘‘subparagraph (B) or (C) 

5 of paragraph (1)’’ the second place it appears 

6 and inserting ‘‘paragraph (1) or (3)’’; and 

7 (3) by striking the subsection designation and 

8 heading and paragraph (1) and inserting the fol9 lowing: 

10 ‘‘(d) REMEDIES.—(1) A State or private employer 

11 who violates the provisions of this chapter shall be liable 

12 to any person affected— 

13 ‘‘(A) for damages in the amount of— 

14 ‘‘(i) any wages, salary, benefits, or other 

15 compensation denied or lost by such person by 

16 reason of the violation; or 

17 ‘‘(ii) in a case in which wages, salary, ben18 efits, or other compensation have not been de19 nied or lost to the person, any actual monetary 

20 losses sustained by the person as a result of the 

21 violation; 

22 ‘‘(B) the interest on the amount described in 

23 subparagraph (A) calculated at the prevailing inter24 est rates over the period of time for which the dam25 ages are due; and 


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1 ‘‘(C) an additional amount as liquidated dam2 ages equal to the sum of the amount described in 

3 subparagraph (A) and the interest described in sub4 paragraph (B), or $10,000, whichever is greater ex5 cept that, if the employer proves to the satisfaction 

6 of the court that the act or omission giving rise to 

7 the person’s action was in good faith and that the 

8 employer had reasonable grounds for believing the 

9 act or omission was not a violation of the provisions 

10 of this chapter, the court may award, in its discre11 tion, no liquidated damages or award any amount of 

12 liquidated damages not to exceed 100 percent of the 

13 compensation or damages awarded under subpara14 graph (A) and the interest described in subpara15 graph (B). 

16 ‘‘(2) In any action under this section, the court may 

17 require the employer to comply with the provisions of this 

18 chapter.’’. 

19 (b) PUNITIVE DAMAGES.—Section 4323(d) of such 

20 title is further amended by inserting after paragraph (2) 

21 (as inserted by subsection (a)(3) of this section) the fol22 lowing new paragraph: 

23 ‘‘(3) In the case of a violation of this chapter by a 

24 State or private employer with 25 or more employees, the 

25 court shall require the employer to pay the person affected 


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1 punitive damages if the court determines that the employ2 er’s violation of this chapter was done with malice or reck3 less indifference to the rights of the person under this 

4 chapter.’’. 

5 (c) RIGHT TO JURY TRIAL.—Section 4323(d) of such 

6 title is further amended by adding at the end the fol7 lowing: 

8 ‘‘(6) A person who commences an action under this 

9 section shall be entitled to a trial by jury.’’. 

10 (d) FEDERAL GOVERNMENT EMPLOYERS.—Para11 graph (2) of section 4324(c) of such title is amended to 

12 read as follows: 

13 ‘‘(2) If the Board determines that a Federal executive 

14 agency or the Office of Personnel Management has vio15 lated the provisions of this chapter relating to the employ16 ment or reemployment of a person by the agency, the 

17 Board shall enter an order requiring the agency or Office 

18 to comply with such provisions and to compensate such 

19 person— 

20 ‘‘(A) for damages in the amount of— 

21 ‘‘(i) any wages, salary, benefits, or other 

22 compensation denied or lost by such person by 

23 reason of the violation; or 

24 ‘‘(ii) in a case in which wages, salary, ben25 efits, or other compensation has not been deVerDate Mar 15 2010 03:43 May 24, 2012 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S3233.IS S3233

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1 nied or lost to the person, any actual monetary 

2 losses sustained by the person as a result of the 

3 violation; 

4 ‘‘(B) the interest on the amount described in 

5 subparagraph (A) calculated at the prevailing inter6 est rates over the period of time for which the dam7 ages are due; and 

8 ‘‘(C) an additional amount as liquidated dam9 ages equal to the sum of the amount described in 

10 subparagraph (A) and the interest described in sub11 paragraph (B), or $10,000, whichever is greater; ex12 cept that, if the Federal executive agency or the Of13 fice of Personnel Management proves to the satisfac14 tion of the Board that the act or omission giving rise 

15 to such person’s complaint was in good faith and 

16 that the agency or Office had reasonable grounds for 

17 believing that the act or omission was not a violation 

18 of the provisions of this chapter, the Board may 

19 award, in the discretion of the Board, no liquidated 

20 damages or award any amount of liquidated dam21 ages not to exceed 100 percent of the compensation 

22 or damages awarded under subparagraph (A) and 

23 the interest described in subparagraph (B).’’. 

24 (e) APPLICATION.—The amendments made by this 

25 section shall apply to— 


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1 (1) any failure to comply with a provision of or 

2 any violation of chapter 43 of title 38, United States 

3 Code, that occurs before, on, or after the date of the 

4 enactment of this Act; and 

5 (2) to all actions or complaints filed under such 

6 chapter 43 that are commenced after the date of the 

7 enactment of this Act. 

8 SEC. 5. REQUIRED AWARD OF ATTORNEY FEES IN ACTIONS 

9 TO ENFORCE EMPLOYMENT AND REEMPLOY10 MENT RIGHTS OF MEMBERS OF THE UNI11 FORMED SERVICES. 

12 (a) ENFORCEMENT OF RIGHTS WITH RESPECT TO

13 A STATE OR PRIVATE EMPLOYER.—Section 4323(h)(2) of 

14 title 38, United States Code, is amended by striking 

15 ‘‘may’’ and inserting ‘‘shall’’. 

16 (b) ENFORCEMENT OF RIGHTS WITH RESPECT TO

17 FEDERAL EXECUTIVE AGENCIES.—Section 4324(c)(4) of 

18 such title is amended by striking ‘‘the Board may, in its 

19 discretion, award’’ and inserting ‘‘the Board shall award’’. 

20 (c) APPLICATION.—The amendments made sub21 sections (a) and (b) shall apply to— 

22 (1) any failure to comply with a provision of or 

23 any violation of chapter 43 of title 38, United States 

24 Code, that occurs before, on, or after the date of the 

25 enactment of this Act; and 


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1 (2) to all actions or complaints filed under such 

2 chapter 43 that are pending on or after the date of 

3 the enactment of this Act. 

4 SEC. 6. REQUIRING EQUITABLE RELIEF WHEN APPRO5 PRIATE. 

6 (a) IN GENERAL.—Section 4323(e) of title 38, 

7 United States Code, is amended— 

8 (1) by striking ‘‘The court shall use,’’ and in9 serting ‘‘(1) The court shall use,’’; and 

10 (2) by adding at the end the following new 

11 paragraph: 

12 ‘‘(2) Notwithstanding rule 65 of the Federal Rules 

13 of Civil Procedure or any other provision of law, for pur14 poses of determining whether to issue an injunction or re15 straining order pursuant to paragraph (1)— 

16 ‘‘(A) an employer’s denial of reemployment or 

17 retention in employment shall constitute irreparable 

18 harm to a person who is denied reemployment or re19 tention in employment if an injunction to reinstate 

20 such person is not issued, and such person shall be 

21 considered to have no adequate remedy at law; 

22 ‘‘(B) if the court balances the hardships be23 tween the parties, there shall be a rebuttable pre24 sumption that the balance of harm to a person who 

25 is denied reemployment or retention in employment 


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1 if an injunction to reinstate such person is not 

2 issued outweighs the harm to such person’s employer 

3 or former employer if an injunction is issued to rein4 state such person; and 

5 ‘‘(C) if the court considers the public interest or 

6 public policy, there shall be a rebuttable presumption 

7 that the issuance of an injunction to reinstate a per8 son who is denied reemployment or retention in em9 ployment is in the public interest and advances pub10 lic policy.’’. 

11 (b) APPLICATION.—The amendments made by sub12 section (a) shall apply to— 

13 (1) any failure to comply with a provision of or 

14 any violation of chapter 43 of title 38, United States 

15 Code, that occurs before, on, or after the date of the 

16 enactment of this Act; and 

17 (2) to all actions or complaints filed under such 

18 chapter 43 that are pending on or after the date of 

19 the enactment of this Act. 

20 SEC. 7. REQUIREMENT THAT FEDERAL AGENCIES PROVIDE 

21 NOTICE TO CONTRACTORS OF POTENTIAL 

22 OBLIGATIONS RELATING TO EMPLOYMENT 

23 AND REEMPLOYMENT RIGHTS OF MEMBERS 

24 OF THE UNIFORMED SERVICES. 

25 (a) CIVILIAN AGENCIES.— 


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1 (1) IN GENERAL.—Chapter 47 of title 41, 

2 United States Code, is amended by adding at the 

3 end the following new section: 

4 ‘‘§ 4712. Notice to contractors of potential obligations 

5 relating to employment and reemploy6 ment rights of members of the uniformed 

7 services 

8 ‘‘Each contract for the procurement of property or 

9 services that is entered into by the head of an executive 

10 agency shall include a notice to the contractor that the 

11 contractor may have obligations under chapter 43 of title 

12 38, United States Code.’’. 

13 (2) CLERICAL AMENDMENT.—The table of sec14 tions at the beginning of chapter 47 of such title is 

15 amended by inserting after the item relating to sec16 tion 4711 the following new item: 

‘‘4712. Notice to contractors of potential obligations relating to employment and 

reemployment rights of members of the uniformed services.’’. 

17 (b) ARMED FORCES.— 

18 (1) IN GENERAL.—Chapter 137 of title 10, 

19 United States Code, is amended by adding at the 

20 end the following new section: 


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1 ‘‘§ 2336. Notice to contractors of potential obligations 

2 relating to employment and reemploy3 ment rights of members of the uniformed 

4 services 

5 ‘‘Each contract for the procurement of property or 

6 services that is entered into by the head of an executive 

7 agency shall include a notice to the contractor that the 

8 contractor may have obligations under chapter 43 of title 

9 38.’’. 

10 (2) CLERICAL AMENDMENT.—The table of sec11 tions for such chapter is amended by adding at the 

12 end the following new item: 

‘‘2336. Notice to contractors of potential obligations relating to employment and 

reemployment rights of members of the uniformed services.’’. 

13 SEC. 8. CLARIFYING THAT PROVISIONS OF SECTION 4302 

14 OF TITLE 38, UNITED STATES CODE, APPLY 

15 TO BOTH SUBSTANTIVE AND PROCEDURAL 

16 RIGHTS. 

17 Section 4302 of title 38, United States Code, is 

18 amended by inserting ‘‘substantive or procedural’’ before 

19 ‘‘right or benefit’’ each place it occurs. 


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1 SEC. 9. COMPTROLLER GENERAL OF THE UNITED STATES 

2 STUDY ON EFFECTIVENESS OF FEDERAL 

3 PROGRAMS OF EDUCATION AND OUTREACH 

4 ON EMPLOYER OBLIGATIONS REGARDING 

5 EMPLOYMENT AND REEMPLOYMENT RIGHTS 

6 OF MEMBERS OF THE UNIFORMED SERVICES. 

7 (a) STUDY REQUIRED.—The Comptroller General of 

8 the United States shall conduct a study on the effective9 ness of Federal programs of education and outreach on 

10 employer obligations under chapter 43 of title 38, United 

11 States Code. 

12 (b) CONTENTS OF STUDY.—In carrying out the study 

13 required by subsection (a), the Comptroller General 

14 shall— 

15 (1) assess current practices and procedures of 

16 Federal agencies for educating employers about their 

17 obligations under chapter 43 of title 38, United 

18 States Code; 

19 (2) identify best practices for bringing the em20 ployment practices of small businesses into compli21 ance with such chapter; 

22 (3) determine whether the Employer Support 

23 for the Guard and Reserve, the Small Business Ad24 ministration, or other agencies could collaborate to 

25 develop a program to educate employers regarding 

26 their obligations under such chapter; and 


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1 (4) determine the effect on recruitment and re2 tention in the National Guard and Reserves of the 

3 failure of employers to meet their reemployment ob4 ligations under such chapter. 

5 (c) REPORT TO CONGRESS.—Not later than Decem6 ber 31, 2012, the Comptroller General shall submit to 

7 Congress a report on the study conducted under sub8 section (a), including the following: 

9 (1) The findings of the Comptroller General 

10 with respect to such study. 

11 (2) The recommendations of the Comptroller 

12 General for the improvement of education and out13 reach for employers with respect to their obligations 

14 under chapter 43 of title 38, United States Code. 

Æ 


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