II 

111TH CONGRESS 

1ST SESSION S. 263 

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 

JANUARY 15, 2009 

Mr. CASEY (for himself and Mr. KENNEDY) 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 2009’’. 


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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 (i) as subsection 

13 (j); and 

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

16 ‘‘(i) 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 4327 

20 the following new section: 

21 ‘‘§ 4328. 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 Nov 24 2008 00:25 Jan 17, 2009 Jkt 079200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S263.IS S263

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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: 

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

4 (c) APPLICATION.—The provisions of section 4328 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.—Para9 graph (2) of section 4324(c) of such title is amended to 

10 read as follows: 

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

12 agency or the Office of Personnel Management has vio13 lated the provisions of this chapter relating to the employ14 ment or reemployment of a person by the agency, the 

15 Board shall enter an order requiring the agency or Office 

16 to comply with such provisions and to compensate such 

17 person— 

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

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

20 compensation denied or lost by such person by 

21 reason of the violation; or 

22 ‘‘(ii) in a case in which wages, salary, ben23 efits, or other compensation has not been de24 nied or lost to the person, any actual monetary 


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1 losses sustained by the person as a result of the 

2 violation; 

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

4 subparagraph (A) calculated at the prevailing inter5 est rates over the period of time for which the dam6 ages are due; and 

7 ‘‘(C) an additional amount as liquidated dam8 ages equal to the sum of the amount described in 

9 subparagraph (A) and the interest described in sub10 paragraph (B), or $10,000, whichever is greater; ex11 cept that, if the Federal executive agency or the Of12 fice of Personnel Management proves to the satisfac13 tion of the Board that the act or omission giving rise 

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

15 that the agency or Office had reasonable grounds for 

16 believing that the act or omission was not a violation 

17 of the provisions of this chapter, the Board may 

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

19 damages or award any amount of liquidated dam20 ages not to exceed 100 percent of the compensation 

21 or damages awarded under subparagraph (A) and 

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

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

24 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 PROVISIONS OF USERRA. 

10 (a) ENFORCEMENT OF RIGHTS WITH RESPECT TO

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

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

13 ‘‘may’’ and inserting ‘‘shall’’. 

14 (b) ENFORCEMENT OF RIGHTS WITH RESPECT TO

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

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

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

18 (c) APPLICATION.—The amendments made sub19 sections (a) and (b) shall apply to— 

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

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

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

23 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. CLARIFYING THE DEFINITION OF ‘‘SUCCESSOR IN 

5 INTEREST’’. 

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

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

8 following new subparagraph: 

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

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

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

12 considers the following factors regardless of the form 

13 of the succession: 

14 ‘‘(I) Substantial continuity of the same 

15 business operations. 

16 ‘‘(II) Use of the same plant. 

17 ‘‘(III) Continuity of work force. 

18 ‘‘(IV) Similarity of jobs and working condi19 tions. 

20 ‘‘(V) Similarity of supervisory personnel. 

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

22 and production methods. 

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

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

25 of a potential or pending claim under this chapter 


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

2 of succession shall not be considered when applying 

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

4 (b) APPLICATION.—The amendment made by sub5 section (a) shall apply to— 

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

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

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

9 enactment of this Act; and 

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

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

12 the enactment of this Act. 

13 SEC. 7. CLARIFYING THAT USERRA PROHIBITS WAGE DIS14 CRIMINATION AGAINST MEMBERS OF THE 

15 ARMED FORCES. 

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

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

18 wages or salary for work performed)’’ and inserting ‘‘(in19 cluding wages or salary)’’. 

20 (b) APPLICATION.—The amendment made by sub21 section (a) 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. 8. 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. 9. REQUIREMENT THAT FEDERAL AGENCIES PROVIDE 

21 NOTICE TO CONTRACTORS OF POTENTIAL 

22 USERRA OBLIGATIONS. 

23 (a) CIVILIAN AGENCIES.—The Federal Property and 

24 Administrative Services Act of 1949 (41 U.S.C. 251 et 


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1 seq.) is amended by adding at the end the following new 

2 section: 

3 ‘‘SEC. 318. NOTICE TO CONTRACTORS OF POTENTIAL OBLI4 GATIONS RELATING TO EMPLOYMENT AND 

5 REEMPLOYMENT OF MEMBERS OF THE 

6 ARMED FORCES. 

7 ‘‘Each contract for the procurement of property or 

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

9 agency shall include a notice to the contractor that the 

10 contractor may have obligations under chapter 43 of title 

11 38, United States Code.’’. 

12 (b) ARMED FORCES.— 

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

14 United States Code, is amended by adding at the 

15 end the following new section: 

16 ‘‘§ 2334. Notice to contractors of potential obligations 

17 relating to employment and reemploy18 ment of members of the armed forces 

19 ‘‘Each contract for the procurement of property or 

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

21 agency shall include a notice to the contractor that the 

22 contractor may have obligations under chapter 43 of title 

23 38.’’. 


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1 (2) CLERICAL AMENDMENT.—The table of sec2 tions for such chapter is amended by adding at the 

3 end the following new item: 

‘‘2334. Notice to contractors of potential obligations relating to employment and 

reemployment of members of the armed forces.’’. 

4 SEC. 10. CLARIFYING THAT PROVISIONS OF SECTION 4302 

5 OF TITLE 38, UNITED STATES CODE, APPLY 

6 TO BOTH SUBSTANTIVE AND PROCEDURAL 

7 RIGHTS. 

8 Section 4302 is amended by inserting ‘‘substantive 

9 or procedural’’ before ‘‘right or benefit’’ each place it oc10 curs. 

11 SEC. 11. COMPTROLLER GENERAL OF THE UNITED STATES 

12 STUDY ON EFFECTIVENESS OF FEDERAL 

13 PROGRAMS OF EDUCATION AND OUTREACH 

14 ON EMPLOYER OBLIGATIONS UNDER 

15 USERRA. 

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

17 the United States shall conduct a study on the effective18 ness of Federal programs of education and outreach on 

19 employer obligations under chapter 43 of title 38, United 

20 States Code. 

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

22 required by subsection (a), the Comptroller General 

23 shall— 


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1 (1) assess current practices and procedures of 

2 Federal agencies for educating employers about their 

3 obligations under chapter 43 of title 38, United 

4 States Code; 

5 (2) identify best practices for bringing the em6 ployment practices of small businesses into compli7 ance with such chapter; 

8 (3) determine whether the Employer Support 

9 for the Guard and Reserve, the Small Business Ad10 ministration, or other agencies could collaborate to 

11 develop a program to educate employers regarding 

12 their obligations under such chapter; and 

13 (4) determine the effect on recruitment and re14 tention in the National Guard and Reserves of the 

15 failure of employers to meet their reemployment ob16 ligations under such chapter. 

17 (c) REPORT TO CONGRESS.—Not later than Decem18 ber 31, 2009, the Comptroller General shall submit to 

19 Congress a report on the study conducted under sub20 section (a), including the following: 

21 (1) The findings of the Comptroller General 

22 with respect to such study. 

23 (2) The recommendations of the Comptroller 

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1 reach for employers with respect to their obligations 

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

3 SEC. 12. TECHNICAL AMENDMENTS. 

4 (a) AMENDMENT TO CONGRESSIONAL ACCOUNT5 ABILITY ACT OF 1995.—Section 206(b) of the Congres6 sional Accountability Act of 1995 (2 U.S.C. 1316(b)) is 

7 amended by striking ‘‘under paragraphs (1), (2)(A), and 

8 (3) of section 4323(c) of title 38, United States Code’’ 

9 and inserting ‘‘under subsection 4323(d) of title 38, 

10 United States Code’’. 

11 (b) AMENDMENT TO SECTION 416 OF TITLE 3, 

12 UNITED STATES CODE.—Section 416(b) of title 3, United 

13 States Code, is amended by striking ‘‘under paragraphs 

14 (1) and (2)(A) of section 4323(c) of title 38’’ and inserting 

15 ‘‘under section 4323(d) of title 38’’. 

16 (c) AMENDMENT TO SECTION 4324 OF TITLE 38, 

17 UNITED STATES CODE.—Section 4324(b)(4) of title 38, 

18 United States Code, is amended by inserting before the 

19 period the following: ‘‘declining to initiate an action and 

20 represent the person before the Merit Systems Protection 

21 Board’’. 

Æ 


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