I
118THCONGRESS
1
STSESSION H. R. 3943
To amend title 38, United States Code, to improve the reemployment rights
of members of the Armed Forces, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
JUNE9, 2023
Mr. C. S
COTTFRANKLINof 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.
Be it enacted by the Senate and House of Representa-1
tives of the United States of America in Congress assembled, 2
SECTION 1. SHORT TITLE. 3
This Act may be cited as the ‘‘Servicemember Em-4
ployment Protection Act of 2023’’. 5
SEC. 2. IMPROVEMENTS TO REEMPLOYMENT RIGHTS OF 6
MEMBERS OF THE ARMED FORCES. 7
(a) E
XPANSION OF INJUNCTIVERELIEF.—Sub-8
section (e) of section 4323 of title 38, United States Code, 9
is amended— 10
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(1) by striking ‘‘The court shall use’’ and in-1
serting ‘‘(1) The court shall use’’; and 2
(2) by adding at the end the following new 3
paragraphs: 4
‘‘(2) A person bringing an action to enforce a provi-5
sion of this chapter pursuant to subsection (a) shall be 6
entitled to an injunction under paragraph (1) if such per-7
son demonstrates— 8
‘‘(A) a violation— 9
‘‘(i) of the provisions of this chapter; or 10
‘‘(ii) of the provisions of this chapter is threat-11
ened or is imminent; and 12
‘‘(B) a likelihood of success on the merits of such ac-13
tion. 14
‘‘(3) The court may not deny a motion for injunctive 15
relief on the basis that a party bringing an action to en-16
force a provision of this chapter may be awarded wages 17
unearned due to an unlawful termination of employment 18
at the conclusion of such action.’’. 19
(b) E
XPANSION OFLIQUIDATEDDAMAGES.— 20
(1) D
AMAGES AGAINST A STATE OR PRIVATE 21
EMPLOYER.—Such section is further amended in 22
paragraph (1) of subsection (d), by striking subpara-23
graph (C) and inserting the following new subpara-24
graphs: 25
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‘‘(C) The court may require the employer to 1
pay the person the amount referred to in subpara-2
graph (B) and interest on such amount, calculated 3
at a rate of 3 percent per year. 4
‘‘(D) The court may require the employer to 5
pay the person the greater of $50,000 or the amount 6
equal to the amounts referred to in subparagraphs 7
(B) and (C) as liquidated damages, if the court de-8
termines that the employer knowingly failed to com-9
ply with the provisions of this chapter.’’. 10
(2) D
AMAGES AGAINST FEDERAL EXECUTIVE 11
AGENCIES.—Subsection (c) of section 4324 of such 12
title is amended— 13
(A) by redesignating paragraphs (3) and 14
(4) as paragraphs (4) and (5), respectively; and 15
(B) by inserting after paragraph (2) the 16
following new paragraph: 17
‘‘(3) If the Board determines that a Federal executive 18
agency or the Office of Personnel Management has vio-19
lated the requirement under subsection (a) of section 4334 20
of this title, such violation shall constitute prima facie evi-21
dence that such Federal executive agency or the Office of 22
Personnel Management knowingly failed to comply with 23
the provisions of this chapter.’’. 24
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(c) MANDATORYATTORNEYFEESAWARD INSUC-1
CESSFULACTIONS FORREEMPLOYMENT.— 2
(1) MSPB
ACTIONS.—Paragraph (5) of sub-3
section (c) of such section (as redesignated by sub-4
section (b)(2)) is amended by striking ‘‘the Board 5
may, in its discretion, award such person reasonable 6
attorney fees’’ and inserting ‘‘the Board shall award 7
such person reasonable attorney fees’’. 8
(2) F
EDERAL CIRCUIT ACTIONS .—Subsection 9
(d) of such section is amended by adding at the end 10
the following new paragraph: 11
‘‘(3) In such Federal Circuit proceeding, the court 12
shall award such person reasonable attorney fees, expert 13
witness fees, and other litigation expenses if such person— 14
‘‘(A) prevails in such Federal Circuit pro-15
ceeding; and 16
‘‘(B) is not represented by the Special Counsel 17
in such Federal Circuit proceeding.’’. 18
(3) A
CTIONS AGAINST A STATE OR PRIVATE EM -19
PLOYER.—Paragraph (2) of section 4323(h) of such 20
title is amended by striking ‘‘the court may award 21
any such person who prevails in such action or pro-22
ceeding reasonable attorney fees’’ and inserting ‘‘the 23
court shall award any such person who prevails in 24
such action or proceeding reasonable attorney fees’’. 25
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(d) REPEAL OFIMMUNITY FOR CERTAINFEDERAL 1
I
NTELLIGENCEAGENCIES.— 2
(1) USERRA
IMMUNITY REPEALED .—Sections 3
4315 and 4325 of such title are repealed. 4
(2) C
ONFORMING AMENDMENT .—Section 5
4313(a) of such title is amended by striking ‘‘sec-6
tions 4314 and 4315’’ and inserting ‘‘section 4314’’. 7
(e) M
AINTENANCE OFPERFORMANCE REVIEWRAT-8
INGS.—Section 4312 of such title is amended— 9
(1) by resdesignating subsections (g) and (h) as 10
subsections (h) and (i); and 11
(2) by inserting after subsection (f) the fol-12
lowing new subsection: 13
‘‘(g) On any performance review that an employer ad-14
ministers while an employee is absent from a position of 15
employment by reason of service in the uniformed services, 16
such employer shall give such employee a performance 17
score that is equal to the average of the sum of each per-18
formance score such employee received on any perform-19
ance review such employer administered during the period 20
beginning on the date that is three years before the date 21
the absence of such employee began and ending on the 22
date the absence of such employee began.’’. 23
(f) E
XPANSION OFELIGIBLETIMEAWAYFROMCI-24
VILIANEMPLOYMENT.—Section 4303(13) of such title is 25
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amended by inserting ‘‘, a period for which a person is 1
absent from a position of employment for the purpose of 2
medical or dental treatment for a condition, illness, or in-3
jury sustained or aggravated during any such duty’’ after 4
‘‘any such duty’’. 5
(g) L
IMITATION ONUSERRA PURPOSES.—Section 6
4301(a)(1) of such title is amended by striking ‘‘encour-7
age noncareer service in the uniformed services’’ and in-8
serting ‘‘encourage service in the uniformed services’’. 9
(h) R
EVIEW ANDREPORT.— 10
(1) R
EVIEW.—The Comptroller General of the 11
United States shall review the methods through 12
which the Secretary of Labor, acting through the 13
Veterans’ Employment and Training Service, proc-14
esses actions for relief under chapter 43 of title 38, 15
United States Code. 16
(2) E
LEMENTS.—Not later than one year after 17
the date of the enactment of this Act, the Comp-18
troller General shall submit to the Committees on 19
Veterans’ Affairs of the House of Representatives 20
and the Senate a report that includes— 21
(A) the findings of the review required 22
under paragraph (1); 23
(B) an identification of the number of ac-24
tions for relief under chapter 43 of title 38, 25
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United States Code, initiated during the period 1
covered by the report, disaggregated by size of 2
employer and geographic region; 3
(C) an identification of the number of such 4
actions for relief that were erroneously dis-5
missed, as determined by the Comptroller Gen-6
eral; 7
(D) an identification of the number of such 8
actions for relief that were referred to the De-9
partment of Justice; and 10
(E) an assessment of trends, if any, in 11
such actions for relief initiated during such pe-12
riod. 13
SEC. 3. REVIEW OF INVESTIGATIONS MANUAL OF VET-14
ERANS’ EMPLOYMENT AND TRAINING SERV-15
ICE. 16
(a) I
NGENERAL.—Not later than one year after the 17
date of the enactment of this Act, and biennially there-18
after, the Secretary of Labor, shall review the manual of 19
the Department of Labor titled ‘‘Veterans’ Employment 20
and Training Service Investigations Manual: USERRA, 21
VEOA, and VP’’ (or a successor manual) and make such 22
revisions to such manual as the Secretary determines ap-23
propriate. 24
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(b) REPORT.—Not later than 90 days after any date 1
on which the Secretary completes a review required under 2
subsection (a), the Secretary shall submit to the Commit-3
tees on Veterans’ Affairs of the House of Representatives 4
and the Senate— 5
(1) a report that includes a description of any 6
revision to such manual made pursuant to such re-7
view; and 8
(2) a copy of such manual, in unredacted form. 9
Æ
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