II 

112TH CONGRESS 

2D SESSION S. 3236 

To amend title 38, United States Code, to improve the protection and enforcement of employment and reemployment rights of members of the uniformed services, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

MAY 24, 2012 

Mr. PRYOR 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 

protection and 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 ‘‘Servicemember Em5 ployment Protection Act of 2012’’. 


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1 SEC. 2. UNENFORCEABILITY OF AGREEMENTS TO ARBI2 TRATE DISPUTES ARISING UNDER USERRA. 

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

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

5 end the following new section: 

6 ‘‘§ 4328. Unenforceability of agreements to arbitrate 

7 disputes 

8 ‘‘(a) PROTECTION OF EMPLOYEE RIGHTS.—Notwith9 standing any other provision of law, any clause of any 

10 agreement between an employer and an employee that re11 quires arbitration of a dispute arising under this chapter 

12 shall not be enforceable. 

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

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

15 arises, the parties involved knowingly and voluntarily 

16 agree to submit such dispute to arbitration. 

17 ‘‘(2) Subsection (a) shall not preclude the enforce18 ment of any of the rights or terms of a valid collective 

19 bargaining agreement. 

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

21 whether this section applies to an arbitration clause shall 

22 be determined by Federal law. Except as otherwise pro23 vided in chapter 1 of title 9, the validity or enforceability 

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

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

26 arbitrator, regardless of whether the party resisting arbiVerDate Mar 15 2010 22:51 May 29, 2012 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S3236.IS S3236

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1 tration challenges the agreement to arbitrate specifically 

2 or in conjunction with other terms of the agreement. 

3 ‘‘(d) APPLICATION.—This section shall apply with re4 spect to all contracts and agreements between an employer 

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

6 the enactment of this section.’’. 

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

8 at the beginning of such chapter is amended by inserting 

9 after the item relating to section 4327 the following new 

10 item: 

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

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

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

13 shall apply to— 

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

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

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

17 enactment of this Act; and 

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

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

20 the enactment of this Act. 


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1 SEC. 3. EXPANSION OF EMPLOYMENT AND REEMPLOY2 MENT RIGHTS OF MEMBERS OF UNIFORMED 

3 SERVICES TO INCLUDE PROTECTION FOR AB4 SENCES FROM EMPLOYMENT FOR MEDICAL 

5 TREATMENT RELATING TO SERVICE-CON6 NECTED INJURIES AND ILLNESSES. 

7 (a) IN GENERAL.—Section 4303(13) of title 38, 

8 United States Code, is amended by inserting ‘‘a period for 

9 which a person is absent from a position of employment 

10 for the purpose of medical or dental treatment for an in11 jury or illness incurred or aggravated in line of duty dur12 ing a period of service in the uniformed services,’’ after 

13 ‘‘for any such duty,’’. 

14 (b) FMLA.— 

15 (1) RULE OF CONSTRUCTION.—For purposes of 

16 that section 4303(13) and each covered provision— 

17 (A) the reference in that section 4303(13) 

18 to a period for which a person is absent from 

19 a position of employment for the purpose of 

20 medical or dental treatment shall not be consid21 ered to be a reference to a period of leave under 

22 a covered provision; and 

23 (B) the person’s employer shall not des24 ignate the period of absence as such a period of 

25 leave, 


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1 unless the person requests and obtains the leave 

2 under the corresponding covered provision. 

3 (2) DEFINITION.—In this subsection, the term 

4 ‘‘covered provision’’ means— 

5 (A) title I of the Family and Medical 

6 Leave Act of 1993 (29 U.S.C. 2601 et seq.), in7 cluding the application of that title under the 

8 Congressional Accountability Act of 1995 (2 

9 U.S.C. 1301 et seq.) and chapter 5 of title 3, 

10 United States Code; and 

11 (B) subchapter V of chapter 63 of title 5, 

12 United States Code. 

13 SEC. 4. SUSPENSION, TERMINATION, OR DEBARMENT OF 

14 CONTRACTORS FOR REPEATED VIOLATIONS 

15 OF EMPLOYMENT OR REEMPLOYMENT 

16 RIGHTS OF MEMBERS OF UNIFORMED SERV17 ICES. 

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

19 title 38, United States Code, as amended by section 2, 

20 is further amended by adding at the end the following new 

21 section: 

22 ‘‘§ 4329. Suspension, termination, or debarment of 

23 contractors 

24 ‘‘(a) GROUNDS FOR SUSPENSION, TERMINATION, OR

25 DEBARMENT.—Payment under a contract awarded by a 


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1 Federal executive agency may be suspended and the con2 tract may be terminated, and the contractor who made 

3 the contract with the agency may be suspended or 

4 debarred in accordance with the requirements of this sec5 tion, if the head of the agency determines that the con6 tractor as an employer has repeatedly failed or refused to 

7 comply with a provision of this chapter. 

8 ‘‘(b) CONDUCT OF SUSPENSION, TERMINATION, AND

9 DEBARMENT PROCEEDINGS.—A contracting officer who 

10 determines in writing that cause for suspension of pay11 ments, termination, or suspension or debarment exists 

12 shall initiate an appropriate action, to be conducted by the 

13 agency concerned in accordance with applicable law, in14 cluding Executive Order 12549 or any superseding execu15 tive order, the Federal Acquisition Regulation, and any 

16 other regulations prescribed to implement the law or exec17 utive order. 

18 ‘‘(c) EFFECT OF DEBARMENT.—A contractor 

19 debarred by a final decision under this section is ineligible 

20 for award of a contract by a Federal executive agency, 

21 and for participation in a future procurement by a Federal 

22 executive agency, for a period specified in the decision, not 

23 to exceed 5 years.’’. 

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

25 at the beginning of chapter 43 of such title, as amended 


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1 by section 2, is further amended by inserting after the 

2 item relating to section 4328, as added by such section, 

3 the following new item: 

‘‘4329. Suspension, termination, or debarment of contractor.’’. 

4 (c) REGULATIONS.—Not later than 180 days after 

5 the date of the enactment of this Act, the Federal Acquisi6 tion Regulatory Council shall amend the Federal Acquisi7 tion Regulation to carry out section 4329 of title 38, 

8 United States Code, as added by subsection (a). 

9 (d) EFFECTIVE DATE.—Section 4329 of title 38, 

10 United States Code, as added by subsection (a), shall 

11 apply with respect to failures and refusals to comply with 

12 provisions of chapter 43 of such title occurring on or after 

13 the date of the enactment of this Act. 

Æ 


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