Servicemembers Access to Justice Act of 2012 - Waives a state's sovereign immunity with respect to the enforcement of uniformed services members' employment or reemployment rights or benefits under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA).
Makes unenforceable agreements between an employer and employee requiring arbitration of disputes arising under USERRA. Provides exceptions. Requires the validity and enforceability of such an agreement to be determined by a court (as opposed to the arbitrator).
Provides increased liquidated damages, and authorizes punitive damages, against state or private employer violations of USERRA. Provides a right to a jury trial in such cases.
Requires (under current law, authorizes) the award of attorney fees in actions to enforce USERRA.
Requires (under current law, authorizes) a court to use equitable relief, including injunctions and restraining orders when appropriate, for USERRA violations.
Requires federal procurement contracts to include a notice that the contractor may have USERRA obligations.
Requires a Comptroller General study on the effectiveness of federal education and outreach programs on employer obligations under USERRA.
[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[H.R. 6015 Introduced in House (IH)]
112th CONGRESS
2d Session
H. R. 6015
To amend title 38, United States Code, to improve the enforcement of
employment and reemployment rights of members of the uniformed
services, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
June 21, 2012
Ms. Schwartz (for herself, Mr. Connolly of Virginia, Ms. Bordallo, Mr.
Brady of Pennsylvania, Mr. Doyle, Mr. Critz, and Mr. Holden) introduced
the following bill; which was referred to the Committee on Veterans'
Affairs, and in addition to the Committees on Armed Services and
Oversight and Government Reform, for a period to be subsequently
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
employment and reemployment rights of members of the uniformed
services, and for other purposes.
Be it enacted by the Senate and House of Representatives 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 2012''.
SEC. 2. WAIVER OF SOVEREIGN IMMUNITY UNDER THE ELEVENTH AMENDMENT WITH
RESPECT TO ENFORCEMENT OF EMPLOYMENT AND REEMPLOYMENT
RIGHTS OF MEMBERS OF THE UNIFORMED SERVICES.
(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 following 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
eleventh 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
``(C) a person seeking reemployment as an employee 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 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 commenced after the date of the enactment of this
Act.
SEC. 3. UNENFORCEABILITY OF AGREEMENTS TO ARBITRATE DISPUTES REGARDING
EMPLOYMENT AND REEMPLOYMENT RIGHTS OF MEMBERS OF THE
UNIFORMED SERVICES.
(a) In General.--Subchapter III of chapter 43 of title 38, United
States Code, is amended by adding at the end the following new section:
``Sec. 4328. Unenforceability of agreements to arbitrate disputes
``(a) Protection of Employee Rights.--Notwithstanding any other
provision of law, any clause of any agreement between an employer and
an employee that requires arbitration of a dispute arising under this
chapter shall not be enforceable.
``(b) Exceptions.--(1) Subsection (a) shall not apply with respect
to any dispute if, after such dispute arises, the parties involved
knowingly and voluntarily agree to submit such dispute to arbitration.
``(2) Subsection (a) shall not preclude the enforcement of any of
the rights or terms of a valid collective bargaining 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 provided 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 arbitration
challenges the agreement to arbitrate specifically or in conjunction
with other terms of the agreement.
``(d) Application.--This section shall apply with respect 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.''.
(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 EMPLOYMENT AND
REEMPLOYMENT RIGHTS OF MEMBERS OF THE UNIFORMED SERVICES.
(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)''; and
(C) by striking ``subparagraph (B) or (C) of
paragraph (1)'' the second place it appears and
inserting ``paragraph (1) or (3)''; and
(3) by striking the subsection enumerator and heading and
paragraph (1) and inserting the following:
``(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, benefits,
or other compensation have not been denied 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 interest rates over the period
of time for which the damages are due; and
``(C) an additional amount as liquidated damages equal to
the sum of the amount described in subparagraph (A) and the
interest described in subparagraph (B), or $10,000, whichever
is greater except 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 discretion, no liquidated damages or award
any amount of liquidated damages not to exceed 100 percent of
the compensation or damages awarded under subparagraph (A) and
the interest described in subparagraph (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 following new paragraph:
``(3) In the case of a violation 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
determines that the employer's violation of 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 following:
``(6) A person who commences an action under this section shall be
entitled to a trial by jury.''.
(d) Federal Government Employers.--Paragraph (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 violated the provisions of this
chapter relating to the employment 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, benefits,
or other compensation has not been denied 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 interest rates over the period
of time for which the damages are due; and
``(C) an additional amount as liquidated damages equal to
the sum of the amount described in subparagraph (A) and the
interest described in subparagraph (B), or $10,000, whichever
is greater; except that, if the Federal executive agency or the
Office of Personnel Management proves to the satisfaction 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 damages 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--
(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
EMPLOYMENT AND REEMPLOYMENT RIGHTS OF MEMBERS OF THE
UNIFORMED SERVICES.
(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 by subsections (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
(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. REQUIRING EQUITABLE RELIEF WHEN APPROPRIATE.
(a) In General.--Section 4323(e) 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 paragraph:
``(2) Notwithstanding rule 65 of the Federal Rules of Civil
Procedure or any other provision of law, for purposes of determining
whether to issue an injunction or restraining 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 retention 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 between the
parties, there shall be a rebuttable presumption 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
reinstate 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 person who is denied
reemployment or retention in employment is in the public
interest and advances public policy.''.
(b) Application.--The amendments made 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. 7. REQUIREMENT THAT FEDERAL AGENCIES PROVIDE NOTICE TO CONTRACTORS
OF POTENTIAL OBLIGATIONS RELATING TO EMPLOYMENT AND
REEMPLOYMENT RIGHTS OF MEMBERS OF THE UNIFORMED SERVICES.
(a) Civilian Agencies.--
(1) In general.--Chapter 47 of title 41, United States
Code, is amended by adding at the end the following new
section:
``Sec. 4712. Notice to contractors of potential obligations relating to
employment and reemployment rights of members of the
uniformed services
``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.''.
(2) Clerical amendment.--The table of sections at the
beginning of chapter 47 of such title is amended by inserting
after the item relating to section 4711 the following new item:
``4712. Notice to contractors of potential obligations relating to
employment and reemployment rights of
members of the uniformed services.''.
(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:
``Sec. 2336. Notice to contractors of potential obligations relating to
employment and reemployment rights of members of the
uniformed services
``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.''.
(2) Clerical amendment.--The table of sections for such
chapter is amended by adding at the end the following new item:
``2336. Notice to contractors of potential obligations relating to
employment and reemployment rights of
members of the uniformed services.''.
SEC. 8. CLARIFYING THAT PROVISIONS OF SECTION 4302 OF TITLE 38, UNITED
STATES CODE, APPLY TO BOTH SUBSTANTIVE AND PROCEDURAL
RIGHTS.
Section 4302 of title 38, United States Code, is amended by
inserting ``substantive or procedural'' before ``right or benefit''
each place it occurs.
SEC. 9. COMPTROLLER GENERAL OF THE UNITED STATES STUDY ON EFFECTIVENESS
OF FEDERAL PROGRAMS OF EDUCATION AND OUTREACH ON EMPLOYER
OBLIGATIONS REGARDING EMPLOYMENT AND REEMPLOYMENT RIGHTS
OF MEMBERS OF THE UNIFORMED SERVICES.
(a) Study Required.--The Comptroller General of the United States
shall conduct a study on the effectiveness 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--
(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 employment
practices of small businesses into compliance with such
chapter;
(3) determine whether the Employer Support for the Guard
and Reserve, the Small Business Administration, 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 retention in
the National Guard and Reserves of the failure of employers to
meet their reemployment obligations under such chapter.
(c) Report to Congress.--Not later than December 31, 2012, the
Comptroller General shall submit to Congress a report on the study
conducted under subsection (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 outreach for employers with
respect to their obligations under chapter 43 of title 38,
United States Code.
<all>
Introduced in House
Introduced in House
Referred to the Committee on Veterans' Affairs, and in addition to the Committees on Armed Services, and Oversight and Government Reform, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Committee on Veterans' Affairs, and in addition to the Committees on Armed Services, and Oversight and Government Reform, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Committee on Veterans' Affairs, and in addition to the Committees on Armed Services, and Oversight and Government Reform, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Subcommittee on Economic Opportunity.
Referred to the Subcommittee on Military Personnel.
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