I 
111TH CONGRESS 
1ST SESSION H. R. 1474 
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 
MARCH 12, 2009 
Mr. DAVIS of Alabama (for himself, Mr. BOCCIERI, Mr. WALZ, and Mr. 
ALTMIRE) introduced the following bill; which was referred to the Com-
mittee on Veterans’ Affairs, and in addition to the Committees on Armed 
Services and Oversight and Government Reform, for a period to be subse-
quently 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 2009’’. 
VerDate Nov 24 2008 
01:29 Mar 14, 2009
Jkt 079200
PO 00000
Frm 00001
Fmt 6652
Sfmt 6201
E:\BILLS\H1474.IH
H1474
rfrederick on PROD1PC67 with BILLS
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 (i) as subsection 
(j); and 
(3) by inserting after subsection (h) the fol-
lowing new subsection: 
‘‘(i) 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 
VerDate Nov 24 2008 
01:29 Mar 14, 2009
Jkt 079200
PO 00000
Frm 00002
Fmt 6652
Sfmt 6201
E:\BILLS\H1474.IH
H1474
rfrederick on PROD1PC67 with BILLS
‘‘(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 4327 
the following new section: 
‘‘§ 4328. 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-
VerDate Nov 24 2008 
01:29 Mar 14, 2009
Jkt 079200
PO 00000
Frm 00003
Fmt 6652
Sfmt 6201
E:\BILLS\H1474.IH
H1474
rfrederick on PROD1PC67 with BILLS
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.’’. 
VerDate Nov 24 2008 
01:29 Mar 14, 2009
Jkt 079200
PO 00000
Frm 00004
Fmt 6652
Sfmt 6201
E:\BILLS\H1474.IH
H1474
rfrederick on PROD1PC67 with BILLS
(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: 
‘‘4328. Unenforceability of agreements to arbitrate disputes.’’. 
(c) APPLICATION.—The provisions of section 4328 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 
VerDate Nov 24 2008 
01:29 Mar 14, 2009
Jkt 079200
PO 00000
Frm 00005
Fmt 6652
Sfmt 6201
E:\BILLS\H1474.IH
H1474
rfrederick on PROD1PC67 with BILLS
(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 
VerDate Nov 24 2008 
01:29 Mar 14, 2009
Jkt 079200
PO 00000
Frm 00006
Fmt 6652
Sfmt 6201
E:\BILLS\H1474.IH
H1474
rfrederick on PROD1PC67 with BILLS
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 
VerDate Nov 24 2008 
01:29 Mar 14, 2009
Jkt 079200
PO 00000
Frm 00007
Fmt 6652
Sfmt 6201
E:\BILLS\H1474.IH
H1474
rfrederick on PROD1PC67 with BILLS
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.—Para-
graph (2) of section 4324(c) 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 
VerDate Nov 24 2008 
01:29 Mar 14, 2009
Jkt 079200
PO 00000
Frm 00008
Fmt 6652
Sfmt 6201
E:\BILLS\H1474.IH
H1474
rfrederick on PROD1PC67 with BILLS
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 
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— 
VerDate Nov 24 2008 
01:29 Mar 14, 2009
Jkt 079200
PO 00000
Frm 00009
Fmt 6652
Sfmt 6201
E:\BILLS\H1474.IH
H1474
rfrederick on PROD1PC67 with BILLS
(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. 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 
VerDate Nov 24 2008 
01:29 Mar 14, 2009
Jkt 079200
PO 00000
Frm 00010
Fmt 6652
Sfmt 6201
E:\BILLS\H1474.IH
H1474
rfrederick on PROD1PC67 with BILLS
(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. 6. CLARIFYING THE DEFINITION OF ‘‘SUCCESSOR IN 
INTEREST’’. 
(a) IN GENERAL.—Section 4303(4) of title 38, 
United States Code, is amended by adding at the end the 
following new subparagraph: 
‘‘(D)(i) The term ‘successor in interest’ shall be 
determined for purposes of subparagraph (A)(iv) on 
a case-by-case basis using a multi-factor test which 
considers the following factors regardless of the form 
of the succession: 
‘‘(I) Substantial continuity of the same 
business operations. 
‘‘(II) Use of the same plant. 
‘‘(III) Continuity of work force. 
‘‘(IV) Similarity of jobs and working condi-
tions. 
‘‘(V) Similarity of supervisory personnel. 
‘‘(VI) Similarity in machinery, equipment, 
and production methods. 
‘‘(VII) Similarity of products or services. 
‘‘(ii) The successor’s lack of notice or awareness 
of a potential or pending claim under this chapter 
VerDate Nov 24 2008 
01:29 Mar 14, 2009
Jkt 079200
PO 00000
Frm 00011
Fmt 6652
Sfmt 6201
E:\BILLS\H1474.IH
H1474
rfrederick on PROD1PC67 with BILLS
at the time of a merger, acquisition, or other form 
of succession shall not be considered when applying 
the multi-factor test under clause (i).’’. 
(b) APPLICATION.—The amendment 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 pending on or after the date of 
the enactment of this Act. 
SEC. 7. CLARIFYING THAT USERRA PROHIBITS WAGE DIS-
CRIMINATION AGAINST MEMBERS OF THE 
ARMED FORCES. 
(a) IN GENERAL.—Section 4303(2) of title 38, 
United States Code, is amended by striking ‘‘(other than 
wages or salary for work performed)’’ and inserting ‘‘(in-
cluding wages or salary)’’. 
(b) APPLICATION.—The amendment 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 
VerDate Nov 24 2008 
01:29 Mar 14, 2009
Jkt 079200
PO 00000
Frm 00012
Fmt 6652
Sfmt 6201
E:\BILLS\H1474.IH
H1474
rfrederick on PROD1PC67 with BILLS
(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. 8. REQUIRING EQUITABLE RELIEF WHEN APPRO-
PRIATE. 
(a) IN GENERAL.—Section 4323(e) of title 38, 
United States Code, is amended— 
(1) by striking ‘‘The court shall use,’’ and in-
serting ‘‘(1) The court shall use,’’; and 
(2) by adding at the end the following new 
paragraph: 
‘‘(2) Notwithstanding rule 65 of the Federal Rules 
of Civil Procedure or any other provision of law, for pur-
poses of determining whether to issue an injunction or re-
straining order pursuant to paragraph (1)— 
‘‘(A) an employer’s denial of reemployment or 
retention in employment shall constitute irreparable 
harm to a person who is denied reemployment or re-
tention in employment if an injunction to reinstate 
such person is not issued, and such person shall be 
considered to have no adequate remedy at law; 
‘‘(B) if the court balances the hardships be-
tween the parties, there shall be a rebuttable pre-
sumption that the balance of harm to a person who 
is denied reemployment or retention in employment 
VerDate Nov 24 2008 
01:29 Mar 14, 2009
Jkt 079200
PO 00000
Frm 00013
Fmt 6652
Sfmt 6201
E:\BILLS\H1474.IH
H1474
rfrederick on PROD1PC67 with BILLS
if an injunction to reinstate such person is not 
issued outweighs the harm to such person’s employer 
or former employer if an injunction is issued to rein-
state such person; and 
‘‘(C) if the court considers the public interest or 
public policy, there shall be a rebuttable presumption 
that the issuance of an injunction to reinstate a per-
son who is denied reemployment or retention in em-
ployment is in the public interest and advances pub-
lic policy.’’. 
(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 pending on or after the date of 
the enactment of this Act. 
SEC. 9. REQUIREMENT THAT FEDERAL AGENCIES PROVIDE 
NOTICE TO CONTRACTORS OF POTENTIAL 
USERRA OBLIGATIONS. 
(a) CIVILIAN AGENCIES.—The Federal Property and 
Administrative Services Act of 1949 (41 U.S.C. 251 et 
VerDate Nov 24 2008 
01:29 Mar 14, 2009
Jkt 079200
PO 00000
Frm 00014
Fmt 6652
Sfmt 6201
E:\BILLS\H1474.IH
H1474
rfrederick on PROD1PC67 with BILLS
seq.) is amended by adding at the end the following new 
section: 
‘‘SEC. 318. NOTICE TO CONTRACTORS OF POTENTIAL OBLI-
GATIONS RELATING TO EMPLOYMENT AND 
REEMPLOYMENT 
OF 
MEMBERS 
OF 
THE 
ARMED FORCES. 
‘‘Each contract for the procurement of property or 
services that is entered into by the head of an executive 
agency shall include a notice to the contractor that the 
contractor may have obligations under chapter 43 of title 
38, United States Code.’’. 
(b) ARMED FORCES.— 
(1) IN
GENERAL.—Chapter 137 of title 10, 
United States Code, is amended by adding at the 
end the following new section: 
‘‘§ 2334. Notice to contractors of potential obligations 
relating to employment and reemploy-
ment of members of the armed forces 
‘‘Each contract for the procurement of property or 
services that is entered into by the head of an executive 
agency shall include a notice to the contractor that the 
contractor may have obligations under chapter 43 of title 
38.’’. 
VerDate Nov 24 2008 
01:29 Mar 14, 2009
Jkt 079200
PO 00000
Frm 00015
Fmt 6652
Sfmt 6201
E:\BILLS\H1474.IH
H1474
rfrederick on PROD1PC67 with BILLS
(2) CLERICAL AMENDMENT.—The table of sec-
tions for such chapter is amended by adding at the 
end the following new item: 
‘‘2334. Notice to contractors of potential obligations relating to employment and 
reemployment of members of the armed forces.’’. 
SEC. 10. CLARIFYING THAT PROVISIONS OF SECTION 4302 
OF TITLE 38, UNITED STATES CODE, APPLY 
TO BOTH SUBSTANTIVE AND PROCEDURAL 
RIGHTS. 
Section 4302 is amended by inserting ‘‘substantive 
or procedural’’ before ‘‘right or benefit’’ each place it oc-
curs. 
SEC. 11. COMPTROLLER GENERAL OF THE UNITED STATES 
STUDY ON EFFECTIVENESS OF FEDERAL 
PROGRAMS OF EDUCATION AND OUTREACH 
ON 
EMPLOYER 
OBLIGATIONS 
UNDER 
USERRA. 
(a) STUDY REQUIRED.—The Comptroller General of 
the United States shall conduct a study on the effective-
ness of Federal programs of education and outreach on 
employer obligations under chapter 43 of title 38, United 
States Code. 
(b) CONTENTS OF STUDY.—In carrying out the study 
required by subsection (a), the Comptroller General 
shall— 
VerDate Nov 24 2008 
01:29 Mar 14, 2009
Jkt 079200
PO 00000
Frm 00016
Fmt 6652
Sfmt 6201
E:\BILLS\H1474.IH
H1474
rfrederick on PROD1PC67 with BILLS
(1) assess current practices and procedures of 
Federal agencies for educating employers about their 
obligations under chapter 43 of title 38, United 
States Code; 
(2) identify best practices for bringing the em-
ployment practices of small businesses into compli-
ance with such chapter; 
(3) determine whether the Employer Support 
for the Guard and Reserve, the Small Business Ad-
ministration, or other agencies could collaborate to 
develop a program to educate employers regarding 
their obligations under such chapter; and 
(4) determine the effect on recruitment and re-
tention in the National Guard and Reserves of the 
failure of employers to meet their reemployment ob-
ligations under such chapter. 
(c) REPORT TO CONGRESS.—Not later than Decem-
ber 31, 2009, the Comptroller General shall submit to 
Congress a report on the study conducted under sub-
section (a), including the following: 
(1) The findings of the Comptroller General 
with respect to such study. 
(2) The recommendations of the Comptroller 
General for the improvement of education and out-
VerDate Nov 24 2008 
01:29 Mar 14, 2009
Jkt 079200
PO 00000
Frm 00017
Fmt 6652
Sfmt 6201
E:\BILLS\H1474.IH
H1474
rfrederick on PROD1PC67 with BILLS
reach for employers with respect to their obligations 
under chapter 43 of title 38, United States Code. 
SEC. 12. TECHNICAL AMENDMENTS. 
(a) AMENDMENT
TO CONGRESSIONAL ACCOUNT-
ABILITY ACT OF 1995.—Section 206(b) of the Congres-
sional Accountability Act of 1995 (2 U.S.C. 1316(b)) is 
amended by striking ‘‘under paragraphs (1), (2)(A), and 
(3) of section 4323(c) of title 38, United States Code’’ 
and inserting ‘‘under subsection 4323(d) of title 38, 
United States Code’’. 
(b) AMENDMENT
TO SECTION 416 OF TITLE 3, 
UNITED STATES CODE.—Section 416(b) of title 3, United 
States Code, is amended by striking ‘‘under paragraphs 
(1) and (2)(A) of section 4323(c) of title 38’’ and inserting 
‘‘under section 4323(d) of title 38’’. 
(c) AMENDMENT TO SECTION 4324 OF TITLE 38, 
UNITED STATES CODE.—Section 4324(b)(4) of title 38, 
United States Code, is amended by inserting before the 
period the following: ‘‘declining to initiate an action and 
represent the person before the Merit Systems Protection 
Board’’. 
Æ 
VerDate Nov 24 2008 
01:29 Mar 14, 2009
Jkt 079200
PO 00000
Frm 00018
Fmt 6652
Sfmt 6301
E:\BILLS\H1474.IH
H1474
rfrederick on PROD1PC67 with BILLS