II 

114TH CONGRESS 

2D SESSION S. 3445 

To amend title 38, United States Code, to improve the enforcement of 

employment and reemployment rights of members of the uniformed services with respect to States and private employers, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

SEPTEMBER 28, 2016 

Mr. BLUMENTHAL (for himself, Mrs. MURRAY, Mr. DURBIN, and Ms. BALDWIN) 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 with respect to States 

and private employers, 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 ‘‘Uniformed Services 

5 Employment and Reemployment Rights Improvement Act 

6 of 2016’’. 


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1 SEC. 2. ACTION FOR RELIEF IN ENFORCEMENT OF EM2 PLOYMENT AND REEMPLOYMENT RIGHTS OF 

3 MEMBERS OF UNIFORMED SERVICES WITH 

4 RESPECT TO A STATE OR PRIVATE EM5 PLOYER. 

6 (a) INITIATION OF ACTIONS.—Paragraph (1) of sub7 section (a) of section 4323 of title 38, United States Code, 

8 is amended by striking the third sentence and inserting 

9 the following new sentences: ‘‘If the Attorney General is 

10 reasonably satisfied that the person on whose behalf the 

11 complaint is referred is entitled to the rights or benefits 

12 sought, the Attorney General may commence an action for 

13 relief under this chapter, including on behalf of the person. 

14 The person on whose behalf the complaint is referred may, 

15 upon timely application, intervene in such action and may 

16 obtain such appropriate relief as provided in subsections 

17 (d) and (e).’’. 

18 (b) ATTORNEY GENERAL NOTICE TO SERVICEMEM19 BER OF DECISION.—Paragraph (2) of such subsection is 

20 amended to read as follows: 

21 ‘‘(2)(A) Not later than 60 days after the date the 

22 Attorney General receives a referral under paragraph (1), 

23 the Attorney General shall transmit, in writing, to the per24 son on whose behalf the complaint is submitted— 

25 ‘‘(i) if the Attorney General has made a deci26 sion about whether the United States will commence 


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1 an action for relief under paragraph (1) relating to 

2 the complaint of the person, notice of the decision; 

3 and 

4 ‘‘(ii) if the Attorney General has not made such 

5 a decision, notice of when the Attorney General ex6 pects to make such a decision. 

7 ‘‘(B) If the Attorney General notifies a person of 

8 when the Attorney General expects to make a decision 

9 under subparagraph (A)(ii), the Attorney General shall, 

10 not later than 30 days after the date on which the Attor11 ney General makes such decision, notify, in writing, the 

12 person of such decision.’’. 

13 (c) PATTERN OR PRACTICE CASES.—Such subsection 

14 is further amended— 

15 (1) by redesignating paragraph (3) as para16 graph (4); and 

17 (2) by inserting after paragraph (2) (as amend18 ed by paragraph (2) of this subsection) the following 

19 new paragraph (3): 

20 ‘‘(3) Whenever the Attorney General has reasonable 

21 cause to believe that a State (as an employer) or a private 

22 employer is engaged in a pattern or practice of resistance 

23 to the full enjoyment of any of the rights or benefits se24 cured by this chapter, the Attorney General may com25 mence an action under this chapter.’’. 


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1 (d) ACTIONS BY PRIVATE PERSONS.—Subparagraph 

2 (C) of paragraph (4) of such subsection, as redesignated 

3 by paragraph (3)(A), is amended by striking ‘‘refused’’ 

4 and all that follows and inserting ‘‘notified by the Attorney 

5 General that the Attorney General does not intend to 

6 bring a civil action.’’. 

7 (e) CONFORMING AMENDMENT.—Subsection (h)(2) 

8 of such section is amended by striking ‘‘subsection (a)(2)’’ 

9 and inserting ‘‘subsection (a)(1) or subsection (a)(4)’’. 

10 SEC. 3. WAIVER OF SOVEREIGN IMMUNITY FOR ENFORCE11 MENT OF EMPLOYMENT AND REEMPLOY12 MENT RIGHTS OF MEMBERS OF UNIFORMED 

13 SERVICES. 

14 Paragraph (2) of section 4323(b) of title 38, United 

15 States Code, is amended to read as follows: 

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

17 an employer), any instrumentality of a State, or any offi18 cer or employee of a State or instrumentality of a State 

19 acting in that officer or employee’s official capacity, by 

20 any person, the action may be brought in the appropriate 

21 district court of the United States or in a State court of 

22 competent jurisdiction, and the State, instrumentality of 

23 the State, or officer or employee of the State or instrumen24 tality acting in that officer or employee’s official capacity 

25 shall not be immune under the Eleventh Amendment of 


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1 the Constitution, or under any other doctrine of sovereign 

2 immunity, from such action. 

3 ‘‘(B)(i) No State, instrumentality of such State, or 

4 officer or employee of such State or instrumentality of 

5 such State, acting in that officer or employee’s official ca6 pacity, that receives or uses Federal financial assistance 

7 for a program or activity shall be immune, under the Elev8 enth Amendment of the Constitution or under any other 

9 doctrine of sovereign immunity, from suit in Federal or 

10 State court by any person for any violation under this 

11 chapter related to such program or activity. 

12 ‘‘(ii) In an action against a State brought pursuant 

13 to subsection (a), a court may award the remedies (includ14 ing remedies both at law and in equity) that are available 

15 under subsections (d) and (e).’’. 

16 SEC. 4. VENUE FOR CASES AGAINST PRIVATE EMPLOYERS 

17 FOR VIOLATIONS OF EMPLOYMENT AND RE18 EMPLOYMENT RIGHTS OF MEMBERS OF UNI19 FORMED SERVICES. 

20 Section 4323(c)(2) of title 38, United States Code, 

21 is amended by striking ‘‘United States district court for 

22 any district in which the private employer of the person 

23 maintains a place of business.’’ and inserting ‘‘United 

24 States district court for— 


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1 ‘‘(A) any district in which the employer main2 tains a place of business; 

3 ‘‘(B) any district in which a substantial part of 

4 the events or omissions giving rise to the claim oc5 curred; or 

6 ‘‘(C) if there is no district in which an action 

7 may otherwise be brought as provided in subpara8 graph (A) or (B), any district in which the employer 

9 is subject to the court’s personal jurisdiction with re10 spect to such action.’’. 

11 SEC. 5. STANDING IN CASES INVOLVING VIOLATIONS OF 

12 EMPLOYMENT AND REEMPLOYMENT RIGHTS 

13 OF MEMBERS OF UNIFORMED SERVICES BY 

14 STATES AND PRIVATE EMPLOYERS. 

15 Section 4323(f) of title 38, United States Code, is 

16 amended— 

17 (1) by inserting ‘‘by the United States or’’ after 

18 ‘‘may be initiated only’’; and 

19 (2) by striking ‘‘or by the United States under 

20 subsection (a)(1)’’. 


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1 SEC. 6. CIVIL INVESTIGATIVE DEMANDS BY ATTORNEY 

2 GENERAL IN ENFORCEMENT OF EMPLOY3 MENT AND REEMPLOYMENT RIGHTS OF MEM4 BERS OF UNIFORMED SERVICES WITH RE5 SPECT TO STATES AND PRIVATE EMPLOYERS. 

6 Section 4323 of title 38, United States Code, is 

7 amended— 

8 (1) by redesignating subsection (i) as subsection 

9 (j); and 

10 (2) by inserting after subsection (h) the fol11 lowing new subsection (i): 

12 ‘‘(i) ISSUANCE AND SERVICE OF CIVIL INVESTIGA13 TIVE DEMANDS BY ATTORNEY GENERAL.—(1) Whenever 

14 the Attorney General has reason to believe that any person 

15 may be in possession, custody, or control of any documen16 tary material relevant to an investigation under this chap17 ter, the Attorney General may, before commencing a civil 

18 action under subsection (a), issue in writing and cause to 

19 be served upon such person, a civil investigative demand 

20 requiring— 

21 ‘‘(A) the production of such documentary mate22 rial for inspection and copying; 

23 ‘‘(B) that the custodian of such documentary 

24 material answer in writing written questions with re25 spect to such documentary material; or 


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1 ‘‘(C) the production of any combination of such 

2 documentary material or answers. 

3 ‘‘(2) The provisions governing the authority to issue, 

4 use, and enforce civil investigative demands under section 

5 3733 of title 31 (known as the ‘False Claims Act’) shall 

6 govern the authority to issue, use, and enforce civil inves7 tigative demands under paragraph (1), except that for 

8 purposes of that paragraph— 

9 ‘‘(A) a reference in that section to false claims 

10 law investigators or investigations shall be applied as 

11 referring to investigators or investigations under this 

12 chapter; 

13 ‘‘(B) a reference to interrogatories shall be ap14 plied as referring to written questions, and answers 

15 to such need not be under oath; 

16 ‘‘(C) the statutory definitions for purposes of 

17 that section relating to ‘false claims law’ shall not 

18 apply; and 

19 ‘‘(D) provisions of that section relating to qui 

20 tam relators shall not apply.’’. 


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1 SEC. 7. TREATMENT OF DISABILITY DISCOVERED AFTER 

2 EMPLOYEE ENTITLED TO REEMPLOYMENT 

3 BY REASON OF UNIFORMED SERVICE STATUS 

4 RESUMES EMPLOYMENT. 

5 Section 4313(a)(3) of title 38, United States Code, 

6 is amended, in the matter before subparagraph (A), by 

7 inserting ‘‘including a disability that is brought to the em8 ployer’s attention within 5 years after the person resumes 

9 employment,’’ after ‘‘during, such service,’’. 

10 SEC. 8. BURDEN OF IDENTIFYING PROPER REEMPLOY11 MENT POSITIONS FOR EMPLOYEES ENTITLED 

12 TO REEMPLOYMENT BY REASON OF UNI13 FORMED SERVICE STATUS. 

14 Section 4313 of title 38, United States Code, is 

15 amended by adding at the end the following new sub16 section: 

17 ‘‘(c) For purposes of this section, the employer shall 

18 have the burden of identifying the appropriate reemploy19 ment positions.’’. 

Æ 


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