IIA
105TH CONGRESS
2D SESSION
H. R. 3213
IN THE SENATE OF THE UNITED STATES
MARCH 25, 1998
Received; read twice and referred to the Committee on Veterans’ Affairs
AN ACT
To amend title 38, United States Code, to clarify enforce-
ment of veterans’ employment and reemployment rights
with respect to a State as an employer or a private
employer, to extend veterans’ employment and reemploy-
ment rights to members of the uniformed services em-
ployed abroad by United States companies, and for other
purposes.
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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 ‘‘USERRA Amend-
ments Act of 1998’’.
SEC. 2. ENFORCEMENT OF RIGHTS WITH RESPECT TO A
STATE AS AN EMPLOYER.
(a) IN GENERAL.—Section 4323 of title 38, United
States Code, is amended to read as follows:
‘‘§ 4323. Enforcement of rights with respect to a State
or private employer
‘‘(a) ACTION FOR RELIEF.—(1) A person who re-
ceives from the Secretary a notification pursuant to sec-
tion 4322(e) of this title of an unsuccessful effort to re-
solve a complaint relating to a State (as an employer) or
a private employer may request that the Secretary refer
the complaint to the Attorney General. If the Attorney
General is reasonably satisfied that the person on whose
behalf the complaint is referred is entitled to the rights
or benefits sought, the Attorney General may appear on
behalf of, and act as attorney for, the person on whose
behalf the complaint is submitted and commence an action
for relief under this chapter for such person. In the case
of such an action against a State (as an employer), the
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action shall be brought in the name of the United States
as the plaintiff in the action.
‘‘(2) A person may commence an action for relief with
respect to a complaint against a State (as an employer)
or a private employer if the person—
‘‘(A) has chosen not to apply to the Secretary
for assistance under section 4322(a) of this title;
‘‘(B) has chosen not to request that the Sec-
retary refer the complaint to the Attorney General
under paragraph (1); or
‘‘(C) has been refused representation by the At-
torney General with respect to the complaint under
such paragraph.
‘‘(b) JURISDICTION.—(1) In the case of an action
against a State (as an employer) or a private employer
commenced by the United States, the district courts of
the United States shall have jurisdiction over the action.
‘‘(2) In the case of an action against a State (as an
employer) by a person, the action may be brought in a
State court of competent jurisdiction in accordance with
the laws of the State.
‘‘(3) In the case of an action against a private em-
ployer by a person, the district courts of the United States
shall have jurisdiction of the action.
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‘‘(c) VENUE.—(1) In the case of an action by the
United States against a State (as an employer), the action
may proceed in the United States district court for any
district in which the State exercises any authority or car-
ries out any function.
‘‘(2) In the case of an action against a private em-
ployer, the action may proceed in the United States dis-
trict court for any district in which the private employer
of the person maintains a place of business.
‘‘(d) REMEDIES.—(1) In any action under this sec-
tion, the court may award relief as follows:
‘‘(A) The court may require the employer to
comply with the provisions of this chapter.
‘‘(B) The court may require the employer to
compensate the person for any loss of wages or ben-
efits suffered by reason of such employer’s failure to
comply with the provisions of this chapter.
‘‘(C) The court may require the employer to
pay the person an amount equal to the amount re-
ferred to in subparagraph (B) as liquidated dam-
ages, if the court determines that the employer’s
failure to comply with the provisions of this chapter
was willful.
‘‘(2)(A) Any compensation awarded under subpara-
graph (B) or (C) of paragraph (1) shall be in addition
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‘‘(g) RESPONDENT.—In any action under this chap-
ter, only an employer or a potential employer, as the case
may be, shall be a necessary party respondent.
‘‘(h) FEES, COURT COSTS.—(1) No fees or court
costs may be charged or taxed against any person claiming
rights under this chapter.
‘‘(2) In any action or proceeding to enforce a provi-
sion of this chapter by a person under subsection (a)(2)
who obtained private counsel for such action or proceed-
ing, the court may award any such person who prevails
in such action or proceeding reasonable attorney fees, ex-
pert witness fees, and other litigation expenses.
‘‘(i) INAPPLICABILITY OF STATE STATUTE OF LIMI-
TATIONS.—No State statute of limitations shall apply to
any proceeding under this chapter.
‘‘(j) DEFINITION.—In this section, the term ‘private
employer’ includes a political subdivision of a State.’’.
(b) EFFECTIVE DATE.—(1) Section 4323 of title 38,
United States Code, as amended by subsection (a), shall
apply to actions commenced under chapter 43 of such title
on or after the date of the enactment of this Act, and
shall apply to actions commenced under such chapter be-
fore the date of the enactment of this Act that are not
final on the date of the enactment of this Act, without
regard to when the cause of action accrued.
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(2) In the case of any such action against a State
(as an employer) in which a person, on the day before the
date of the enactment of this Act, is represented by the
Attorney General under section 4323(a)(1) of such title
as in effect on such day, the court shall upon motion of
the Attorney General, substitute the United States as the
plaintiff in the action pursuant to such section as amended
by subsection (a).
SEC. 3. PROTECTION OF EXTRATERRITORIAL EMPLOY-
MENT AND REEMPLOYMENT RIGHTS OF MEM-
BERS OF THE UNIFORMED SERVICES.
(a) DEFINITION OF EMPLOYEE.—Section 4303(3) of
title 38, United States Code, is amended by adding at the
end the following: ‘‘Such term includes any person who
is a citizen, national, or permanent resident alien of the
United States employed in a workplace in a foreign coun-
try by an employer that is an entity incorporated or other-
wise organized in the United States or that is controlled
by an entity organized in the United States, within the
meaning of section 4319(c) of this title.’’.
(b) FOREIGN COUNTRIES.—Subchapter II of chapter
43 of such title is amended by inserting after section 4318
the following new section:
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‘‘§ 4319. Employment and reemployment rights in for-
eign countries
‘‘(a) LIABILITY OF CONTROLLING UNITED STATES
EMPLOYER OF FOREIGN ENTITY.—If an employer con-
trols an entity that is incorporated or otherwise organized
in a foreign country, any denial of employment, reemploy-
ment, or benefit by such entity shall be presumed to be
by such employer.
‘‘(b) INAPPLICABILITY TO FOREIGN EMPLOYER.—
This subchapter does not apply to foreign operations of
an employer that is a foreign person not controlled by an
United States employer.
‘‘(c) 
DETERMINATION
OF
CONTROLLING
EM-
PLOYER.—For the purpose of this section, the determina-
tion of whether an employer controls an entity shall be
based upon the interrelations of operations, common man-
agement, centralized control of labor relations, and com-
mon ownership or financial control of the employer and
the entity.
‘‘(d) EXEMPTION.—Notwithstanding any other provi-
sion of this subchapter, an employer, or an entity con-
trolled by an employer, may—
‘‘(1) discriminate within the meaning of section
4311 of this title;
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‘‘(2) deny reemployment rights within the
meaning of section 4312, 4313, 4314, or 4315 of
this title; or
‘‘(3) deny benefits within the meaning of sec-
tion 4316, 4317, or 4318 of this title,
with respect to an employee in a workplace in a foreign
country, if compliance with any such section would cause
such employer, or such entity controlled by an employer,
to violate the law of the foreign country in which the work-
place is located.’’.
(c) CLERICAL AMENDMENT.—The table of sections
at the beginning of chapter 43 of such title is amended
by inserting after the item relating to section 4318 the
following new item:
‘‘4319. Employment and reemployment rights in foreign countries.’’.
(d) EFFECTIVE DATE.—The amendments made by
this section shall apply only with respect to conduct occur-
ring after the date of the enactment of this Act.
SEC. 4. COMPLAINTS RELATING TO REEMPLOYMENT OF
MEMBERS OF THE UNIFORMED SERVICES IN
FEDERAL SERVICE.
(a) IN GENERAL.—The first sentence of paragraph
(1) of section 4324(c) of title 38, United States Code, is
amended by inserting before the period at the end the fol-
lowing: ‘‘, without regard as to whether the complaint ac-
crued before, on, or after October 13, 1994’’.
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(b) EFFECTIVE DATE.—The amendment made by
subsection (a) shall apply to all complaints filed with the
Merit Systems Protection Board on or after October 13,
1994.
Passed the House of Representatives March 24,
1998.
Attest:
ROBIN H. CARLE,
Clerk.