I 118th CONGRESS 1st Session H. R. 3943 IN THE HOUSE OF REPRESENTATIVES June 9, 2023 Mr. C. Scott Franklin of Florida (for himself and Mr. Bost ) introduced the following bill; which was referred to the Committee on Veterans' Affairs A BILL To amend title 38, United States Code, to improve the reemployment rights of members of the Armed Forces, and for other purposes.

1. Short title This Act may be cited as the Servicemember Employment Protection Act of 2023 . 2. Improvements to reemployment rights of members of the Armed Forces (a) Expansion of injunctive relief Subsection (e) of section 4323 of title 38, United States Code, is amended— (1) by striking The court shall use and inserting (1) The court shall use ; and (2) by adding at the end the following new paragraphs: (2) A person bringing an action to enforce a provision of this chapter pursuant to subsection (a) shall be entitled to an injunction under paragraph (1) if such person demonstrates— (A) a violation— (i) of the provisions of this chapter; or (ii) of the provisions of this chapter is threatened or is imminent; and (B) a likelihood of success on the merits of such action. (3) The court may not deny a motion for injunctive relief on the basis that a party bringing an action to enforce a provision of this chapter may be awarded wages unearned due to an unlawful termination of employment at the conclusion of such action. . (b) Expansion of liquidated damages (1) Damages against a State or private employer Such section is further amended in paragraph (1) of subsection (d), by striking subparagraph (C) and inserting the following new subparagraphs: (C) The court may require the employer to pay the person the amount referred to in subparagraph (B) and interest on such amount, calculated at a rate of 3 percent per year. (D) The court may require the employer to pay the person the greater of $50,000 or the amount equal to the amounts referred to in subparagraphs (B) and (C) as liquidated damages, if the court determines that the employer knowingly failed to comply with the provisions of this chapter. . (2) Damages against Federal executive agencies Subsection (c) of section 4324 of such title is amended— (A) by redesignating paragraphs (3) and (4) as paragraphs (4) and (5), respectively; and (B) by inserting after paragraph (2) the following new paragraph: (3) If the Board determines that a Federal executive agency or the Office of Personnel Management has violated the requirement under subsection (a) of section 4334 of this title, such violation shall constitute prima facie evidence that such Federal executive agency or the Office of Personnel Management knowingly failed to comply with the provisions of this chapter. . (c) Mandatory attorney fees award in successful actions for reemployment (1) MSPB actions Paragraph (5) of subsection (c) of such section (as redesignated by subsection (b)(2)) is amended by striking the Board may, in its discretion, award such person reasonable attorney fees and inserting the Board shall award such person reasonable attorney fees . (2) Federal circuit actions Subsection (d) of such section is amended by adding at the end the following new paragraph: (3) In such Federal Circuit proceeding, the court shall award such person reasonable attorney fees, expert witness fees, and other litigation expenses if such person— (A) prevails in such Federal Circuit proceeding; and (B) is not represented by the Special Counsel in such Federal Circuit proceeding. . (3) Actions against a State or private employer Paragraph (2) of section 4323(h) of such title is amended by striking the court may award any such person who prevails in such action or proceeding reasonable attorney fees and inserting the court shall award any such person who prevails in such action or proceeding reasonable attorney fees . (d) Repeal of immunity for certain Federal intelligence agencies (1) USERRA immunity repealed Sections 4315 and 4325 of such title are repealed. (2) Conforming amendment Section 4313(a) of such title is amended by striking sections 4314 and 4315 and inserting section 4314 . (e) Maintenance of performance review ratings Section 4312 of such title is amended— (1) by resdesignating subsections (g) and (h) as subsections (h) and (i); and (2) by inserting after subsection (f) the following new subsection: (g) On any performance review that an employer administers while an employee is absent from a position of employment by reason of service in the uniformed services, such employer shall give such employee a performance score that is equal to the average of the sum of each performance score such employee received on any performance review such employer administered during the period beginning on the date that is three years before the date the absence of such employee began and ending on the date the absence of such employee began. . (f) Expansion of eligible time away from civilian employment Section 4303(13) of such title is amended by inserting , a period for which a person is absent from a position of employment for the purpose of medical or dental treatment for a condition, illness, or injury sustained or aggravated during any such duty after any such duty . (g) Limitation on USERRA purposes Section 4301(a)(1) of such title is amended by striking encourage noncareer service in the uniformed services and inserting encourage service in the uniformed services . (h) Review and report (1) Review The Comptroller General of the United States shall review the methods through which the Secretary of Labor, acting through the Veterans’ Employment and Training Service, processes actions for relief under chapter 43 of title 38, United States Code. (2) Elements Not later than one year after the date of the enactment of this Act, the Comptroller General shall submit to the Committees on Veterans’ Affairs of the House of Representatives and the Senate a report that includes— (A) the findings of the review required under paragraph (1); (B) an identification of the number of actions for relief under chapter 43 of title 38, United States Code, initiated during the period covered by the report, disaggregated by size of employer and geographic region; (C) an identification of the number of such actions for relief that were erroneously dismissed, as determined by the Comptroller General; (D) an identification of the number of such actions for relief that were referred to the Department of Justice; and (E) an assessment of trends, if any, in such actions for relief initiated during such period. 3. Review of investigations manual of Veterans’ Employment and Training Service (a) In general Not later than one year after the date of the enactment of this Act, and biennially thereafter, the Secretary of Labor, shall review the manual of the Department of Labor titled Veterans’ Employment and Training Service Investigations Manual: USERRA, VEOA, and VP (or a successor manual) and make such revisions to such manual as the Secretary determines appropriate. (b) Report Not later than 90 days after any date on which the Secretary completes a review required under subsection (a), the Secretary shall submit to the Committees on Veterans’ Affairs of the House of Representatives and the Senate— (1) a report that includes a description of any revision to such manual made pursuant to such review; and (2) a copy of such manual, in unredacted form.