I 
110TH CONGRESS 
2D SESSION 
H. R. 7178 
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 HOUSE OF REPRESENTATIVES 
SEPTEMBER 27, 2008 
Mr. DAVIS of Alabama (for himself, Mr. ALTMIRE, and Mr. WALZ of Min-
nesota) introduced the following bill; which was referred to the Committee 
on Veterans’ Affairs, and in addition to the Committee on the Judiciary, 
for a period to be subsequently determined by the Speaker, in each case 
for consideration of such provisions as fall within the jurisdiction of the 
committee concerned 
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 pur-
poses. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘Servicemembers Access 
to Justice Act of 2008’’. 
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SEC. 2. WAIVER OF SOVEREIGN IMMUNITY UNDER THE 
11TH AMENDMENT WITH RESPECT TO EN-
FORCEMENT OF USERRA. 
(a) IN GENERAL.—Section 4323 of title 38, United 
States Code, is amended— 
(1) in subsection (b) by striking paragraph (2) 
and inserting the following new paragraph: 
‘‘(2) In the case of an action against a State (as an 
employer) by a person, the action may be brought in the 
appropriate district court of the United States or State 
court of competent jurisdiction.’’; 
(2) by redesignating subsection (j) as sub-
section (k); and 
(3) by inserting after subsection (i) the fol-
lowing new subsection: 
‘‘(j) WAIVER OF STATE SOVEREIGN IMMUNITY.—(1) 
A State’s receipt or use of Federal financial assistance for 
any program or activity of a State shall constitute a waiver 
of sovereign immunity, under the 11th amendment to the 
Constitution or otherwise, to a suit brought by— 
‘‘(A) a person who is or was an employee in 
that program or activity for the rights or benefits 
authorized the person by this chapter; 
‘‘(B) a person applying to be such an employee 
in that program or activity for the rights or benefits 
authorized the person by this chapter; or 
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‘‘(C) a person seeking reemployment as an em-
ployee in that program or activity for the rights or 
benefits authorized the person by this chapter. 
‘‘(2) In this subsection, the term ‘program or activity’ 
has the meaning given that term in section 309 of the 
Age Discrimination Act of 1975 (42 U.S.C. 6107).’’. 
(b) APPLICATION.—The amendments made by sub-
section (a) shall apply to— 
(1) any failure to comply with a provision of or 
any violation of chapter 43 of title 38, United States 
Code, that occurs before, on, or after the date of the 
enactment of this Act; and 
(2) to all actions or complaints filed under such 
chapter 43 that are commenced after the date of the 
enactment of this Act. 
SEC. 3. UNENFORCEABILITY OF AGREEMENTS TO ARBI-
TRATE DISPUTES ARISING UNDER USERRA. 
(a) IN GENERAL.—Chapter 43 of title 38, United 
States Code, is amended by inserting after section 4326 
the following new section: 
‘‘§ 4327. Unenforceability of agreements to arbitrate 
disputes 
‘‘(a) PROTECTION OF EMPLOYEE RIGHTS.—Notwith-
standing any other provision of law, any clause of any 
agreement between an employer and an employee that re-
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quires arbitration of a dispute arising under this chapter 
shall not be enforceable. 
‘‘(b) EXCEPTIONS.— 
‘‘(1) WAIVER OR AGREEMENT AFTER DISPUTE 
ARISES.—Subsection (a) shall not apply with respect 
to any dispute if, after such dispute arises, the par-
ties involved knowingly and voluntarily agree to sub-
mit such dispute to arbitration. 
‘‘(2) COLLECTIVE BARGAINING AGREEMENTS.— 
Subsection (a) shall not preclude the enforcement of 
any of the rights or terms of a valid collective bar-
gaining agreement. 
‘‘(c) VALIDITY AND ENFORCEMENT.—Any issue as to 
whether this section applies to an arbitration clause shall 
be determined by Federal law. Except as otherwise pro-
vided in chapter 1 of title 9, the validity or enforceability 
of an agreement to arbitrate referred to in subsection (a) 
or (b)(1) shall be determined by a court, rather than the 
arbitrator, irrespective of whether the party resisting arbi-
tration challenges the agreement to arbitrate specifically 
or in conjunction with other terms of the agreement. 
‘‘(d) APPLICATION.—This section shall apply with re-
spect to all contracts and agreements between an employer 
and an employee in force before, on, or after the date of 
the enactment of this section.’’. 
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(b) CLERICAL AMENDMENT.—The table of sections 
for such chapter is amended by inserting after the item 
relating to section 4326 the following new item: 
‘‘4327. Unenforceability of agreements to arbitrate disputes.’’. 
(c) APPLICATION.—The provisions of section 4327 of 
title 38, United States Code, as added by subsection (a), 
shall apply to— 
(1) any failure to comply with a provision of or 
any violation of chapter 43 of title 38, United States 
Code, that occurs before, on, or after the date of the 
enactment of this Act; and 
(2) to all actions or complaints filed under such 
chapter 43 that are pending on or after the date of 
the enactment of this Act. 
SEC. 4. ENHANCED REMEDIES FOR ENFORCEMENT OF 
USERRA. 
(a) STATE
AND
PRIVATE
EMPLOYERS.—Section 
4323(d) of title 38, United States Code, is amended— 
(1) by redesignating paragraphs (2) and (3) as 
paragraphs (4) and (5), respectively; 
(2) in paragraph (4) (as so redesignated)— 
(A) by inserting after ‘‘compensation’’ each 
place it appears the following: ‘‘or damages’’; 
(B) by striking ‘‘subparagraph (B) or (C) 
of paragraph (1)’’ the first place it appears and 
inserting ‘‘paragraph (1) or (3), or both,’’; and 
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(C) by striking ‘‘subparagraph (B) or (C) 
of paragraph (1)’’ the second place it appears 
and inserting ‘‘paragraph (1) or (3), or both’’; 
and 
(3) by striking the subsection designation and 
heading and paragraph (1) and inserting the fol-
lowing: 
‘‘(d) REMEDIES.—(1) A State or private employer 
who violates the provisions of this chapter shall be liable 
to any person affected— 
‘‘(A) for damages in the amount of— 
‘‘(i) any wages, salary, benefits, or other 
compensation denied or lost by such person by 
reason of the violation; or 
‘‘(ii) in a case in which wages, salary, ben-
efits, or other compensation have not been de-
nied or lost to the person, any actual monetary 
losses sustained by the person as a result of the 
violation; 
‘‘(B) the interest on the amount described in 
subparagraph (A) calculated at the prevailing inter-
est rates over the period of time for which the dam-
ages are due; and 
‘‘(C) an additional amount as liquidated dam-
ages equal to the sum of the amount described in 
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subparagraph (A) and the interest described in sub-
paragraph (B), or $10,000, whichever is greater ex-
cept that, if the employer proves to the satisfaction 
of the court that the act or omission giving rise to 
the person’s action was in good faith and that the 
employer had reasonable grounds for believing the 
act or omission was not a violation of the provisions 
of this chapter, the court may award, in its discre-
tion, no liquidated damages or award any amount of 
liquidated damages not to exceed 100 percent of the 
compensation or damages awarded under subpara-
graph (A) and the interest described in subpara-
graph (B). 
‘‘(2) In any action under this section, the court may 
require the employer to comply with the provisions of this 
chapter.’’. 
(b) PUNITIVE DAMAGES.—Section 4323(d) of such 
title is further amended by inserting after paragraph (2) 
(as inserted by subsection (a)(3) of this section) the fol-
lowing new paragraph: 
‘‘(3) In the case of a violation of the provisions of 
this chapter by a State or private employer with 25 or 
more employees, the court shall require the employer to 
pay the person affected punitive damages if the court de-
termines that the employer’s violation of the provisions of 
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this chapter was done with malice or reckless indifference 
to the rights of the person under this chapter.’’. 
(c) RIGHT TO JURY TRIAL.—Section 4323(d) of such 
title is further amended by adding at the end the fol-
lowing: 
‘‘(6) A person who commences an action under this 
section shall be entitled to a trial by jury.’’. 
(d) FEDERAL GOVERNMENT EMPLOYERS.—Section 
4324(c)(2) of such title is amended to read as follows: 
‘‘(2) If the Board determines that a Federal executive 
agency or the Office of Personnel Management has vio-
lated the provisions of this chapter relating to the employ-
ment or reemployment of a person by the agency, the 
Board shall enter an order requiring the agency or Office 
to comply with such provisions and to compensate such 
person— 
‘‘(A) for damages in the amount of— 
‘‘(i) any wages, salary, benefits, or other 
compensation denied or lost by such person by 
reason of the violation; or 
‘‘(ii) in a case in which wages, salary, ben-
efits, or other compensation has not been de-
nied or lost to the person, any actual monetary 
losses sustained by the person as a result of the 
violation; 
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‘‘(B) the interest on the amount described in 
subparagraph (A) calculated at the prevailing inter-
est rates over the period of time for which the dam-
ages are due; and 
‘‘(C) an additional amount as liquidated dam-
ages equal to the sum of the amount described in 
subparagraph (A) and the interest described in sub-
paragraph (B), or $10,000, whichever is greater; ex-
cept that, if the Federal executive agency or the Of-
fice of Personnel Management proves to the satisfac-
tion of the Board that the act or omission giving rise 
to such person’s complaint was in good faith and 
that the agency or Office had reasonable grounds for 
believing that the act or omission was not a violation 
of the provisions of this chapter, the Board may 
award, in the discretion of the Board, no liquidated 
damages or award any amount of liquidated dam-
ages not to exceed 100 percent of the compensation 
or damages awarded under subparagraph (A) and 
the interest described in subparagraph (B).’’. 
(e) APPLICATION.—The amendments made by this 
section shall apply to— 
(1) any failure to comply with a provision of or 
any violation of chapter 43 of title 38, United States 
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Code, that occurs before, on, or after the date of the 
enactment of this Act; and 
(2) to all actions or complaints filed under such 
chapter 43 that are commenced after the date of the 
enactment of this Act. 
SEC. 5. REQUIRED AWARD OF ATTORNEY FEES IN ACTIONS 
TO ENFORCE PROVISIONS OF USERRA. 
(a) ENFORCEMENT OF RIGHTS WITH RESPECT TO 
A STATE OR PRIVATE EMPLOYER.—Section 4323(h)(2) of 
title 38, United States Code, is amended by striking 
‘‘may’’ and inserting ‘‘shall’’. 
(b) ENFORCEMENT OF RIGHTS WITH RESPECT TO 
FEDERAL EXECUTIVE AGENCIES.—Section 4324(c)(4) of 
such title is amended by striking ‘‘the Board may, in its 
discretion, award’’ and inserting ‘‘the Board shall award’’. 
(c) APPLICATION.—The amendments made sub-
sections (a) and (b) shall apply to— 
(1) any failure to comply with a provision of or 
any violation of chapter 43 of title 38, United States 
Code, that occurs before, on, or after the date of the 
enactment of this Act; and 
(2) to all actions or complaints filed under such 
chapter 43 that are pending on or after the date of 
the enactment of this Act. 
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