H.R. 3943 Text - Reported in House - 118th Congress (2023-2024)

SEC. 2. Improvements to reemployment rights of members of the Armed Forces.

(a) USERRA purposes.—Section 4301(a)(1) of title 38, United States Code, is amended by striking “encourage noncareer service in the uniformed services” and inserting “encourage service in the uniformed services”.

(b) Prohibition of retaliation.—Subsection (b) of section 4311 of title 38, United States Code, is amended by inserting “or other retaliatory action” after “employment action”.

(c) Expansion of injunctive relief.—Subsection (e) of section 4323 of such title 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;

“(B) the harm to the person outweighs the injury to the employer;

“(C) a likelihood of success on the merits of such action; and

“(D) awarding such relief is in the public interest.

“(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 or denial of employment at the conclusion of such action.”.

(d) Damages against a State or private employer.—Section 4323 of such title 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.”.

(e) Mandatory attorney fees award in successful actions for reemployment.—

(1) MSPB ACTIONS.—Paragraph (4) of subsection (c) of section 4324 of such title is amended—

(A) by striking “may, in its discretion,” and inserting “shall”; and

(B) by adding at the end the following new sentence: “The Board may, in its discretion, award reasonable attorney fees in a case settled before the issuance of an order if the person can demonstrate that significant attorney fees were incurred and that justice requires such an award.”.

(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—

(A) by striking “subsection (a)(2)” and inserting “subsection (a)(3)”; and

(B) 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”.

(f) GAO review and report on USERRA.—

(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 two years 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 employer characteristics, including size and geographic region;

(C) an identification of the number of such actions for relief that were dismissed, including the characteristics of such actions and reasons for dismissal;

(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.

(g) GAO review of protections for members of the uniformed services by Federal intelligence agencies.—

(1) BRIEFING.—Not later than one year after the date of the enactment of this Act, the Comptroller General of the United States shall provide to the appropriate congressional committees a briefing on the processes and procedures adopted and used by the intelligence community to provide the protections for members of the uniformed services otherwise established under chapter 43 of title 38, United States Code.

(2) REPORT.—Not later than 18 months after the date of the enactment of this Act, the Comptroller General shall provide to such committees a report on such processes and procedures.

(3) DEFINITIONS.—In this subsection:

(A) The term “appropriate congressional committees” means the Committees on Veterans’ Affairs of the House of Representatives and Senate, the Permanent Select Committee on Intelligence of the House of Representatives, and the Select Committee on Intelligence of the Senate.

(B) The term “intelligence community” has the meaning given such term in section 3(4) of the National Security Act of 1947 (50 U.S.C. 3003(4)).