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 multifactor 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 
at the time of a merger, acquisition, or other form 
of succession shall not be considered when applying 
the multifactor test under clause (i).’’. 
VerDate Aug 31 2005 
04:22 Oct 04, 2008
Jkt 079200
PO 00000
Frm 00011
Fmt 6652
Sfmt 6201
E:\BILLS\H7178.IH
H7178
smartinez on PROD1PC64 with BILLS
(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. CLARIFICATION THAT USERRA HAS NO STATUTE OF 
LIMITATIONS. 
(a) IN GENERAL.—Section 4323(i) of title 38, United 
States Code, is amended to read as follows: 
‘‘(i) ABSENCE OF A STATUTE OF LIMITATIONS PE-
RIOD.—No Federal, State, or any other statute of limita-
tions shall apply to any proceeding under this chapter, in-
cluding the statute of limitations in section 1658(a) of title 
28.’’. 
(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 Aug 31 2005 
04:22 Oct 04, 2008
Jkt 079200
PO 00000
Frm 00012
Fmt 6652
Sfmt 6201
E:\BILLS\H7178.IH
H7178
smartinez on PROD1PC64 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. 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 
(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. REQUIRING EQUITABLE RELIEF WHEN APPRO-
PRIATE. 
(a) IN GENERAL.—Section 4323(e) of title 38, 
United States Code, is amended— 
VerDate Aug 31 2005 
04:22 Oct 04, 2008
Jkt 079200
PO 00000
Frm 00013
Fmt 6652
Sfmt 6201
E:\BILLS\H7178.IH
H7178
smartinez on PROD1PC64 with BILLS
(1) by striking ‘‘The court may use’’ and insert-
ing ‘‘(1) The court shall use, in any case in which 
the court determines it is appropriate,’’; 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 
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 
VerDate Aug 31 2005 
04:22 Oct 04, 2008
Jkt 079200
PO 00000
Frm 00014
Fmt 6652
Sfmt 6201
E:\BILLS\H7178.IH
H7178
smartinez on PROD1PC64 with BILLS
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. 
Æ 
VerDate Aug 31 2005 
04:22 Oct 04, 2008
Jkt 079200
PO 00000
Frm 00015
Fmt 6652
Sfmt 6301
E:\BILLS\H7178.IH
H7178
smartinez on PROD1PC64 with BILLS