II 114th CONGRESS 2d Session S. 3445 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. Short title This Act may be cited as the Uniformed Services Employment and Reemployment Rights Improvement Act of 2016 . 2. Action for relief in enforcement of employment and reemployment rights of members of uniformed services with respect to a State or private employer (a) Initiation of actions Paragraph (1) of subsection (a) of section 4323 of title 38, United States Code, is amended by striking the third sentence and inserting the following new sentences: 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 commence an action for relief under this chapter, including on behalf of the person. The person on whose behalf the complaint is referred may, upon timely application, intervene in such action and may obtain such appropriate relief as provided in subsections (d) and (e). . (b) Attorney General notice to servicemember of decision Paragraph (2) of such subsection is amended to read as follows: (2) (A) Not later than 60 days after the date the Attorney General receives a referral under paragraph (1), the Attorney General shall transmit, in writing, to the person on whose behalf the complaint is submitted— (i) if the Attorney General has made a decision about whether the United States will commence an action for relief under paragraph (1) relating to the complaint of the person, notice of the decision; and (ii) if the Attorney General has not made such a decision, notice of when the Attorney General expects to make such a decision. (B) If the Attorney General notifies a person of when the Attorney General expects to make a decision under subparagraph (A)(ii), the Attorney General shall, not later than 30 days after the date on which the Attorney General makes such decision, notify, in writing, the person of such decision. . (c) Pattern or practice cases Such subsection is further amended— (1) by redesignating paragraph (3) as paragraph (4); and (2) by inserting after paragraph (2) (as amended by paragraph (2) of this subsection) the following new paragraph (3): (3) Whenever the Attorney General has reasonable cause to believe that a State (as an employer) or a private employer is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights or benefits secured by this chapter, the Attorney General may commence an action under this chapter. . (d) Actions by private persons Subparagraph (C) of paragraph (4) of such subsection, as redesignated by paragraph (3)(A), is amended by striking refused and all that follows and inserting notified by the Attorney General that the Attorney General does not intend to bring a civil action. . (e) Conforming amendment Subsection (h)(2) of such section is amended by striking subsection (a)(2) and inserting subsection (a)(1) or subsection (a)(4) . 3. Waiver of sovereign immunity for enforcement of employment and reemployment rights of members of uniformed services Paragraph (2) of section 4323(b) of title 38, United States Code, is amended to read as follows: (2) (A) In the case of an action against a State (as an employer), any instrumentality of a State, or any officer or employee of a State or instrumentality of a State acting in that officer or employee’s official capacity, by any person, the action may be brought in the appropriate district court of the United States or in a State court of competent jurisdiction, and the State, instrumentality of the State, or officer or employee of the State or instrumentality acting in that officer or employee’s official capacity shall not be immune under the Eleventh Amendment of the Constitution, or under any other doctrine of sovereign immunity, from such action. (B) (i) No State, instrumentality of such State, or officer or employee of such State or instrumentality of such State, acting in that officer or employee’s official capacity, that receives or uses Federal financial assistance for a program or activity shall be immune, under the Eleventh Amendment of the Constitution or under any other doctrine of sovereign immunity, from suit in Federal or State court by any person for any violation under this chapter related to such program or activity. (ii) In an action against a State brought pursuant to subsection (a), a court may award the remedies (including remedies both at law and in equity) that are available under subsections (d) and (e). . 4. Venue for cases against private employers for violations of employment and reemployment rights of members of uniformed services Section 4323(c)(2) of title 38, United States Code, is amended by striking United States district court for any district in which the private employer of the person maintains a place of business. and inserting “United States district court for— (A) any district in which the employer maintains a place of business; (B) any district in which a substantial part of the events or omissions giving rise to the claim occurred; or (C) if there is no district in which an action may otherwise be brought as provided in subparagraph (A) or (B), any district in which the employer is subject to the court’s personal jurisdiction with respect to such action. . 5. Standing in cases involving violations of employment and reemployment rights of members of uniformed services by States and private employers Section 4323(f) of title 38, United States Code, is amended— (1) by inserting by the United States or after may be initiated only ; and (2) by striking or by the United States under subsection (a)(1) . 6. Civil investigative demands by Attorney General in enforcement of employment and reemployment rights of members of uniformed services with respect to States and private employers Section 4323 of title 38, United States Code, is amended— (1) by redesignating subsection (i) as subsection (j); and (2) by inserting after subsection (h) the following new subsection (i): (i) Issuance and service of civil investigative demands by attorney general (1) Whenever the Attorney General has reason to believe that any person may be in possession, custody, or control of any documentary material relevant to an investigation under this chapter, the Attorney General may, before commencing a civil action under subsection (a), issue in writing and cause to be served upon such person, a civil investigative demand requiring— (A) the production of such documentary material for inspection and copying; (B) that the custodian of such documentary material answer in writing written questions with respect to such documentary material; or (C) the production of any combination of such documentary material or answers. (2) The provisions governing the authority to issue, use, and enforce civil investigative demands under section 3733 of title 31 (known as the False Claims Act ) shall govern the authority to issue, use, and enforce civil investigative demands under paragraph (1), except that for purposes of that paragraph— (A) a reference in that section to false claims law investigators or investigations shall be applied as referring to investigators or investigations under this chapter; (B) a reference to interrogatories shall be applied as referring to written questions, and answers to such need not be under oath; (C) the statutory definitions for purposes of that section relating to false claims law shall not apply; and (D) provisions of that section relating to qui tam relators shall not apply. . 7. Treatment of disability discovered after employee entitled to reemployment by reason of uniformed service status resumes employment Section 4313(a)(3) of title 38, United States Code, is amended, in the matter before subparagraph (A), by inserting including a disability that is brought to the employer’s attention within 5 years after the person resumes employment, after during, such service, . 8. Burden of identifying proper reemployment positions for employees entitled to reemployment by reason of uniformed service status Section 4313 of title 38, United States Code, is amended by adding at the end the following new subsection: (c) For purposes of this section, the employer shall have the burden of identifying the appropriate reemployment positions. .