II 

110TH CONGRESS 

2D SESSION S. 3432 

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. 

IN THE SENATE OF THE UNITED STATES 

AUGUST 1, 2008 

Mr. CASEY (for himself, Mr. KENNEDY, and Mr. OBAMA) 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 the Uniformed Services Employment and 

Reemployment Rights Act of 1994, 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 2008’’. 


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1 SEC. 2. WAIVER OF SOVEREIGN IMMUNITY UNDER THE 

2 11TH AMENDMENT WITH RESPECT TO EN3 FORCEMENT OF USERRA. 

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

5 States Code, is amended— 

6 (1) in subsection (b) by striking paragraph (2) 

7 and inserting the following new paragraph: 

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

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

10 appropriate district court of the United States or State 

11 court of competent jurisdiction.’’; 

12 (2) by redesignating subsection (j) as sub13 section (k); and 

14 (3) by inserting after subsection (i) the fol15 lowing new subsection: 

16 ‘‘(j) WAIVER OF STATE SOVEREIGN IMMUNITY.—(1) 

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

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

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

20 Constitution or otherwise, to a suit brought by— 

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

22 that program or activity for the rights or benefits 

23 authorized the person by this chapter; 

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

25 in that program or activity for the rights or benefits 

26 authorized the person by this chapter; or 


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1 ‘‘(C) a person seeking reemployment as an em2 ployee in that program or activity for the rights or 

3 benefits authorized the person by this chapter. 

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

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

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

7 (b) APPLICATION.—The amendments made by sub8 section (a) 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 commenced after the date of the 

15 enactment of this Act. 

16 SEC. 3. UNENFORCEABILITY OF AGREEMENTS TO ARBI17 TRATE DISPUTES ARISING UNDER USERRA. 

18 (a) IN GENERAL.—Chapter 43 of title 38, United 

19 States Code, is amended by inserting after section 4326 

20 the following new section: 

21 ‘‘§ 4327. Unenforceability of agreements to arbitrate 

22 disputes 

23 ‘‘(a) PROTECTION OF EMPLOYEE RIGHTS.—Notwith24 standing any other provision of law, any clause of any 

25 agreement between an employer and an employee that reVerDate Aug 31 2005 00:00 Aug 05, 2008 Jkt 069200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S3432.IS S3432

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1 quires arbitration of a dispute arising under this chapter 

2 shall not be enforceable. 

3 ‘‘(b) EXCEPTIONS.— 

4 ‘‘(1) WAIVER OR AGREEMENT AFTER DISPUTE

5 ARISES.—Subsection (a) shall not apply with respect 

6 to any dispute if, after such dispute arises, the par7 ties involved knowingly and voluntarily agree to sub8 mit such dispute to arbitration. 

9 ‘‘(2) COLLECTIVE BARGAINING AGREEMENTS.— 

10 Subsection (a) shall not preclude the enforcement of 

11 any of the rights or terms of a valid collective bar12 gaining agreement. 

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

14 whether this section applies to an arbitration clause shall 

15 be determined by Federal law. Except as otherwise pro16 vided in chapter 1 of title 9, the validity or enforceability 

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

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

19 arbitrator, irrespective of whether the party resisting arbi20 tration challenges the agreement to arbitrate specifically 

21 or in conjunction with other terms of the agreement. 

22 ‘‘(d) APPLICATION.—This section shall apply with re23 spect to all contracts and agreements between an employer 

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

25 the enactment of this section.’’. 


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

2 for such chapter is amended by inserting after the item 

3 relating to section 4326 the following new item: 

‘‘4327. Unenforceability of agreements to arbitrate disputes.’’. 

4 (c) APPLICATION.—The provisions of section 4327 of 

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

6 shall apply to— 

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

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

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

10 enactment of this Act; and 

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

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

13 the enactment of this Act. 

14 SEC. 4. ENHANCED REMEDIES FOR ENFORCEMENT OF 

15 USERRA. 

16 (a) STATE AND PRIVATE EMPLOYERS.—Section 

17 4323(d) of title 38, United States Code, is amended— 

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

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

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

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

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

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

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

25 inserting ‘‘paragraph (1) or (3), or both,’’; and 


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

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

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

4 and 

5 (3) by striking the subsection designation and 

6 heading and paragraph (1) and inserting the fol7 lowing: 

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

9 who violates the provisions of this chapter shall be liable 

10 to any person affected— 

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

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

13 compensation denied or lost by such person by 

14 reason of the violation; or 

15 ‘‘(ii) in a case in which wages, salary, ben16 efits, or other compensation have not been de17 nied or lost to the person, any actual monetary 

18 losses sustained by the person as a result of the 

19 violation; 

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

21 subparagraph (A) calculated at the prevailing inter22 est rates over the period of time for which the dam23 ages are due; and 

24 ‘‘(C) an additional amount as liquidated dam25 ages equal to the sum of the amount described in 


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1 subparagraph (A) and the interest described in sub2 paragraph (B), or $10,000, whichever is greater ex3 cept that, if the employer proves to the satisfaction 

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

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

6 employer had reasonable grounds for believing the 

7 act or omission was not a violation of the provisions 

8 of this chapter, the court may award, in its discre9 tion, no liquidated damages or award any amount of 

10 liquidated damages not to exceed 100 percent of the 

11 compensation or damages awarded under subpara12 graph (A) and the interest described in subpara13 graph (B). 

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

15 require the employer to comply with the provisions of this 

16 chapter.’’. 

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

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

19 (as inserted by subsection (a)(3) of this section) the fol20 lowing new paragraph: 

21 ‘‘(3) In the case of a violation of the provisions of 

22 this chapter by a State or private employer with 25 or 

23 more employees, the court shall require the employer to 

24 pay the person affected punitive damages if the court de25 termines that the employer’s violation of the provisions of 


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1 this chapter was done with malice or reckless indifference 

2 to the rights of the person under this chapter.’’. 

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

4 title is further amended by adding at the end the fol5 lowing: 

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

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

8 (d) FEDERAL GOVERNMENT EMPLOYERS.—Section 

9 4324(c)(2) of such title is amended to read as follows: 

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

11 agency or the Office of Personnel Management has vio12 lated the provisions of this chapter relating to the employ13 ment or reemployment of a person by the agency, the 

14 Board shall enter an order requiring the agency or Office 

15 to comply with such provisions and to compensate such 

16 person— 

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

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

19 compensation denied or lost by such person by 

20 reason of the violation; or 

21 ‘‘(ii) in a case in which wages, salary, ben22 efits, or other compensation has not been de23 nied or lost to the person, any actual monetary 

24 losses sustained by the person as a result of the 

25 violation; 


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

2 subparagraph (A) calculated at the prevailing inter3 est rates over the period of time for which the dam4 ages are due; and 

5 ‘‘(C) an additional amount as liquidated dam6 ages equal to the sum of the amount described in 

7 subparagraph (A) and the interest described in sub8 paragraph (B), or $10,000, whichever is greater; ex9 cept that, if the Federal executive agency or the Of10 fice of Personnel Management proves to the satisfac11 tion of the Board that the act or omission giving rise 

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

13 that the agency or Office had reasonable grounds for 

14 believing that the act or omission was not a violation 

15 of the provisions of this chapter, the Board may 

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

17 damages or award any amount of liquidated dam18 ages not to exceed 100 percent of the compensation 

19 or damages awarded under subparagraph (A) and 

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

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

22 section shall apply to— 

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

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


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

2 enactment of this Act; and 

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

4 chapter 43 that are commenced after the date of the 

5 enactment of this Act. 

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

7 TO ENFORCE PROVISIONS OF USERRA. 

8 (a) ENFORCEMENT OF RIGHTS WITH RESPECT TO

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

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

11 ‘‘may’’ and inserting ‘‘shall’’. 

12 (b) ENFORCEMENT OF RIGHTS WITH RESPECT TO

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

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

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

16 (c) APPLICATION.—The amendments made sub17 sections (a) and (b) shall apply to— 

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

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

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

21 enactment of this Act; and 

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

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

24 the enactment of this Act. 


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1 SEC. 6. CLARIFYING THE DEFINITION OF ‘‘SUCCESSOR IN 

2 INTEREST’’. 

3 (a) IN GENERAL.—Section 4303(4) of title 38, 

4 United States Code, is amended by adding at the end the 

5 following new subparagraph: 

6 ‘‘(D)(i) The term ‘successor in interest’ shall be 

7 determined for purposes of subparagraph (A)(iv) on 

8 a case-by-case basis using a multi-factor test which 

9 considers the following factors regardless of the form 

10 of the succession: 

11 ‘‘(I) Substantial continuity of the same 

12 business operations. 

13 ‘‘(II) Use of the same plant. 

14 ‘‘(III) Continuity of work force. 

15 ‘‘(IV) Similarity of jobs and working condi16 tions. 

17 ‘‘(V) Similarity of supervisory personnel. 

18 ‘‘(VI) Similarity in machinery, equipment, 

19 and production methods. 

20 ‘‘(VII) Similarity of products or services. 

21 ‘‘(ii) The successor’s lack of notice or awareness 

22 of a potential or pending claim under this chapter 

23 at the time of a merger, acquisition, or other form 

24 of succession shall not be considered when applying 

25 the multi-factor test under clause (i).’’. 


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1 (b) APPLICATION.—The amendment made by sub2 section (a) shall apply to— 

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

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

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

6 enactment of this Act; and 

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

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

9 the enactment of this Act. 

10 SEC. 7. CLARIFICATION THAT USERRA HAS NO STATUTE OF 

11 LIMITATIONS. 

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

13 States Code, is amended to read as follows: 

14 ‘‘(i) ABSENCE OF A STATUTE OF LIMITATIONS PE15 RIOD.—No Federal, State, or any other statute of limita16 tions shall apply to any proceeding under this chapter, in17 cluding the statute of limitations in section 1658(a) of title 

18 28.’’. 

19 (b) APPLICATION.—The amendment made by sub20 section (a) shall apply to— 

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

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

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

24 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. 8. CLARIFYING THAT USERRA PROHIBITS WAGE DIS5 CRIMINATION AGAINST MEMBERS OF THE 

6 ARMED FORCES. 

7 (a) IN GENERAL.—Section 4303(2) of title 38, 

8 United States Code, is amended by striking ‘‘(other than 

9 wages or salary for work performed)’’ and inserting ‘‘(in10 cluding wages or salary)’’. 

11 (b) APPLICATION.—The amendment 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. 9. REQUIRING EQUITABLE RELIEF WHEN APPRO21 PRIATE. 

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

23 United States Code, is amended— 


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1 (1) by striking ‘‘The court may use’’ and insert2 ing ‘‘(1) The court shall use, in any case in which 

3 the court determines it is appropriate,’’; and 

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

5 paragraph: 

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

7 of Civil Procedure or any other provision of law, for pur8 poses of determining whether to issue an injunction or re9 straining order pursuant to paragraph (1)— 

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

11 retention in employment shall constitute irreparable 

12 harm to a person who is denied reemployment or re13 tention in employment if an injunction to reinstate 

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

15 considered to have no adequate remedy at law; 

16 ‘‘(B) if the court balances the hardships be17 tween the parties, there shall be a rebuttable pre18 sumption that the balance of harm to a person who 

19 is denied reemployment or retention in employment 

20 if an injunction to reinstate such person is not 

21 issued outweighs the harm to such person’s employer 

22 or former employer if an injunction is issued to rein23 state such person; and 

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

25 public policy, there shall be a rebuttable presumption 


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1 that the issuance of an injunction to reinstate a per2 son who is denied reemployment or retention in em3 ployment is in the public interest and advances pub4 lic policy.’’. 

5 (b) APPLICATION.—The amendments made by sub6 section (a) shall apply to— 

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

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

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

10 enactment of this Act; and 

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

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

13 the enactment of this Act. 

Æ 


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