Us Congress 2023-2024 Regular Session

Us Congress House Bill HB3943 Compare Versions

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Version 2 (New)

Old	New		Differences
1		-	IB
2		-	Union Calendar No. 193
	1	+	I
3	2		118THCONGRESS
4	3		1
5	4		STSESSION H. R. 3943
6		-	[Report No. 118–241]
7	5		To amend title 38, United States Code, to improve the reemployment rights
8	6		of members of the Armed Forces, and for other purposes.
9	7		IN THE HOUSE OF REPRESENTATIVES
10	8		JUNE9, 2023
11	9		Mr. C. S
12	10		COTTFRANKLINof Florida (for himself and Mr. BOST) introduced
13	11		the following bill; which was referred to the Committee on Veterans’ Affairs
14		-	O
15		-	CTOBER2, 2023
16		-	Reported with an amendment, committed to the Committee of the Whole
17		-	House on the State of the Union, and ordered to be printed
18		-	[Strike out all after the enacting clause and insert the part printed in italic]
19		-	[For text of introduced bill, see copy of bill as introduced on June 9, 2023]
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23	12		A BILL
24	13		To amend title 38, United States Code, to improve the
25	14		reemployment rights of members of the Armed Forces,
26	15		and for other purposes.
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30	16		Be it enacted by the Senate and House of Representa-1
31	17		tives of the United States of America in Congress assembled, 2
32	18		SECTION 1. SHORT TITLE. 3
33		-	This Act may be cited as the ‘‘Servicemember ~~Employ~~-4
34		-	~~ment~~ Protection Act of 2023’’. 5
	19	+	This Act may be cited as the ‘‘Servicemember Em-4
	20	+	ployment Protection Act of 2023’’. 5
35	21		SEC. 2. IMPROVEMENTS TO REEMPLOYMENT RIGHTS OF 6
36	22		MEMBERS OF THE ARMED FORCES. 7
37		-	(a) USERRA P
38		-	URPOSES.—Section 4301(a)(1) of title 8
39		-	38, United States Code, is amended by striking ‘‘encourage 9
40		-	noncareer service in the uniformed services’’ and inserting 10
41		-	‘‘encourage service in the uniformed services’’. 11
42		-	(b) P
43		-	ROHIBITION OFRETALIATION.—Subsection (b) of 12
44		-	section 4311 of title 38, United States Code, is amended 13
45		-	by inserting ‘‘or other retaliatory action’’ after ‘‘employ-14
46		-	ment action’’. 15
47		-	(c) E
48		-	XPANSION OFINJUNCTIVERELIEF.—Subsection 16
49		-	(e) of section 4323 of such title is amended— 17
50		-	(1) by striking ‘‘The court shall use’’ and insert-18
51		-	ing ‘‘(1) The court shall use’’; and 19
52		-	(2) by adding at the end the following new para-20
53		-	graphs: 21
54		-	‘‘(2) A person bringing an action to enforce a provi-22
55		-	sion of this chapter pursuant to subsection (a) shall be enti-23
56		-	tled to an injunction under paragraph (1) if such person 24
57		-	demonstrates— 25
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61		-	‘‘(A) a violation— 1
62		-	‘‘(i) of the provisions of this chapter; or 2
63		-	‘‘(ii) of the provisions of this chapter is 3
64		-	threatened or is imminent; 4
65		-	‘‘(B) the harm to the person outweighs the injury 5
66		-	to the employer; 6
67		-	‘‘(C) a likelihood of success on the merits of such 7
68		-	action; and 8
69		-	‘‘(D) awarding such relief is in the public inter-9
70		-	est. 10
71		-	‘‘(3) The court may not deny a motion for injunctive 11
72		-	relief on the basis that a party bringing an action to enforce 12
73		-	a provision of this chapter may be awarded wages unearned 13
74		-	due to an unlawful termination or denial of employment 14
75		-	at the conclusion of such action.’’. 15
76		-	(d) D
77		-	AMAGESAGAINST ASTATE ORPRIVATEEM-16
78		-	PLOYER.—Section 4323 of such title is further amended, in 17
79		-	paragraph (1) of subsection (d), by striking subparagraph 18
80		-	(C) and inserting the following new subparagraphs: 19
81		-	‘‘(C) The court may require the employer to pay 20
82		-	the person the amount referred to in subparagraph 21
83		-	(B) and interest on such amount, calculated at a rate 22
84		-	of 3 percent per year. 23
85		-	‘‘(D) The court may require the employer to pay 24
86		-	the person the greater of $50,000 or the amount equal 25
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90		-	to the amounts referred to in subparagraphs (B) and 1
91		-	(C) as liquidated damages, if the court determines 2
92		-	that the employer knowingly failed to comply with the 3
93		-	provisions of this chapter.’’. 4
	23	+	(a) E
	24	+	XPANSION OF INJUNCTIVERELIEF.—Sub-8
	25	+	section (e) of section 4323 of title 38, United States Code, 9
	26	+	is amended— 10
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	30	+	(1) by striking ‘‘The court shall use’’ and in-1
	31	+	serting ‘‘(1) The court shall use’’; and 2
	32	+	(2) by adding at the end the following new 3
	33	+	paragraphs: 4
	34	+	‘‘(2) A person bringing an action to enforce a provi-5
	35	+	sion of this chapter pursuant to subsection (a) shall be 6
	36	+	entitled to an injunction under paragraph (1) if such per-7
	37	+	son demonstrates— 8
	38	+	‘‘(A) a violation— 9
	39	+	‘‘(i) of the provisions of this chapter; or 10
	40	+	‘‘(ii) of the provisions of this chapter is threat-11
	41	+	ened or is imminent; and 12
	42	+	‘‘(B) a likelihood of success on the merits of such ac-13
	43	+	tion. 14
	44	+	‘‘(3) The court may not deny a motion for injunctive 15
	45	+	relief on the basis that a party bringing an action to en-16
	46	+	force a provision of this chapter may be awarded wages 17
	47	+	unearned due to an unlawful termination of employment 18
	48	+	at the conclusion of such action.’’. 19
	49	+	(b) E
	50	+	XPANSION OFLIQUIDATEDDAMAGES.— 20
	51	+	(1) D
	52	+	AMAGES AGAINST A STATE OR PRIVATE 21
	53	+	EMPLOYER.—Such section is further amended in 22
	54	+	paragraph (1) of subsection (d), by striking subpara-23
	55	+	graph (C) and inserting the following new subpara-24
	56	+	graphs: 25
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	60	+	‘‘(C) The court may require the employer to 1
	61	+	pay the person the amount referred to in subpara-2
	62	+	graph (B) and interest on such amount, calculated 3
	63	+	at a rate of 3 percent per year. 4
	64	+	‘‘(D) The court may require the employer to 5
	65	+	pay the person the greater of $50,000 or the amount 6
	66	+	equal to the amounts referred to in subparagraphs 7
	67	+	(B) and (C) as liquidated damages, if the court de-8
	68	+	termines that the employer knowingly failed to com-9
	69	+	ply with the provisions of this chapter.’’. 10
	70	+	(2) D
	71	+	AMAGES AGAINST FEDERAL EXECUTIVE 11
	72	+	AGENCIES.—Subsection (c) of section 4324 of such 12
	73	+	title is amended— 13
	74	+	(A) by redesignating paragraphs (3) and 14
	75	+	(4) as paragraphs (4) and (5), respectively; and 15
	76	+	(B) by inserting after paragraph (2) the 16
	77	+	following new paragraph: 17
	78	+	‘‘(3) If the Board determines that a Federal executive 18
	79	+	agency or the Office of Personnel Management has vio-19
	80	+	lated the requirement under subsection (a) of section 4334 20
	81	+	of this title, such violation shall constitute prima facie evi-21
	82	+	dence that such Federal executive agency or the Office of 22
	83	+	Personnel Management knowingly failed to comply with 23
	84	+	the provisions of this chapter.’’. 24
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	88	+	(c) MANDATORYATTORNEYFEESAWARD INSUC-1
	89	+	CESSFULACTIONS FORREEMPLOYMENT.— 2
	90	+	(1) MSPB
	91	+	ACTIONS.—Paragraph (5) of sub-3
	92	+	section (c) of such section (as redesignated by sub-4
	93	+	section (b)(2)) is amended by striking ‘‘the Board 5
	94	+	may, in its discretion, award such person reasonable 6
	95	+	attorney fees’’ and inserting ‘‘the Board shall award 7
	96	+	such person reasonable attorney fees’’. 8
	97	+	(2) F
	98	+	EDERAL CIRCUIT ACTIONS .—Subsection 9
	99	+	(d) of such section is amended by adding at the end 10
	100	+	the following new paragraph: 11
	101	+	‘‘(3) In such Federal Circuit proceeding, the court 12
	102	+	shall award such person reasonable attorney fees, expert 13
	103	+	witness fees, and other litigation expenses if such person— 14
	104	+	‘‘(A) prevails in such Federal Circuit pro-15
	105	+	ceeding; and 16
	106	+	‘‘(B) is not represented by the Special Counsel 17
	107	+	in such Federal Circuit proceeding.’’. 18
	108	+	(3) A
	109	+	CTIONS AGAINST A STATE OR PRIVATE EM -19
	110	+	PLOYER.—Paragraph (2) of section 4323(h) of such 20
	111	+	title is amended by striking ‘‘the court may award 21
	112	+	any such person who prevails in such action or pro-22
	113	+	ceeding reasonable attorney fees’’ and inserting ‘‘the 23
	114	+	court shall award any such person who prevails in 24
	115	+	such action or proceeding reasonable attorney fees’’. 25
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	118	+	•HR 3943 IH
	119	+	(d) REPEAL OFIMMUNITY FOR CERTAINFEDERAL 1
	120	+	I
	121	+	NTELLIGENCEAGENCIES.— 2
	122	+	(1) USERRA
	123	+	IMMUNITY REPEALED .—Sections 3
	124	+	4315 and 4325 of such title are repealed. 4
	125	+	(2) C
	126	+	ONFORMING AMENDMENT .—Section 5
	127	+	4313(a) of such title is amended by striking ‘‘sec-6
	128	+	tions 4314 and 4315’’ and inserting ‘‘section 4314’’. 7
94	129		(e) M
95		-	ANDATORYATTORNEYFEESAWARD INSUCCESS-5
96		-	FULACTIONS FORREEMPLOYMENT.— 6
97		-	(1) MSPB
98		-	ACTIONS.—Paragraph (4) of sub-7
99		-	section (c) of section 4324 of such title is amended— 8
100		-	(A) by striking ‘‘may, in its discretion,’’ 9
101		-	and inserting ‘‘shall’’; and 10
102		-	(B) by adding at the end the following new 11
103		-	sentence: ‘‘The Board may, in its discretion, 12
104		-	award reasonable attorney fees in a case settled 13
105		-	before the issuance of an order if the person can 14
106		-	demonstrate that significant attorney fees were 15
107		-	incurred and that justice requires such an 16
108		-	award.’’. 17
109		-	(2) F
110		-	EDERAL CIRCUIT ACTIONS.—Subsection (d) 18
111		-	of such section is amended by adding at the end the 19
112		-	following new paragraph: 20
113		-	‘‘(3) In such Federal Circuit proceeding, the court shall 21
114		-	award such person reasonable attorney fees, expert witness 22
115		-	fees, and other litigation expenses if such person— 23
116		-	‘‘(A) prevails in such Federal Circuit proceeding; 24
117		-	and 25
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121		-	‘‘(B) is not represented by the Special Counsel in 1
122		-	such Federal Circuit proceeding.’’. 2
123		-	(3) A
124		-	CTIONS AGAINST A STATE OR PRIVATE EM -3
125		-	PLOYER.—Paragraph (2) of section 4323(h) of such 4
126		-	title is amended— 5
127		-	(A) by striking ‘‘subsection (a)(2)’’ and in-6
128		-	serting ‘‘subsection (a)(3)’’; and 7
129		-	(B) by striking ‘‘the court may award any 8
130		-	such person who prevails in such action or pro-9
131		-	ceeding reasonable attorney fees’’ and inserting 10
132		-	‘‘the court shall award any such person who pre-11
133		-	vails in such action or proceeding reasonable at-12
134		-	torney fees’’. 13
135		-	(f) GAO R
136		-	EVIEW ANDREPORT ONUSERRA.— 14
	130	+	AINTENANCE OFPERFORMANCE REVIEWRAT-8
	131	+	INGS.—Section 4312 of such title is amended— 9
	132	+	(1) by resdesignating subsections (g) and (h) as 10
	133	+	subsections (h) and (i); and 11
	134	+	(2) by inserting after subsection (f) the fol-12
	135	+	lowing new subsection: 13
	136	+	‘‘(g) On any performance review that an employer ad-14
	137	+	ministers while an employee is absent from a position of 15
	138	+	employment by reason of service in the uniformed services, 16
	139	+	such employer shall give such employee a performance 17
	140	+	score that is equal to the average of the sum of each per-18
	141	+	formance score such employee received on any perform-19
	142	+	ance review such employer administered during the period 20
	143	+	beginning on the date that is three years before the date 21
	144	+	the absence of such employee began and ending on the 22
	145	+	date the absence of such employee began.’’. 23
	146	+	(f) E
	147	+	XPANSION OFELIGIBLETIMEAWAYFROMCI-24
	148	+	VILIANEMPLOYMENT.—Section 4303(13) of such title is 25
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	151	+	•HR 3943 IH
	152	+	amended by inserting ‘‘, a period for which a person is 1
	153	+	absent from a position of employment for the purpose of 2
	154	+	medical or dental treatment for a condition, illness, or in-3
	155	+	jury sustained or aggravated during any such duty’’ after 4
	156	+	‘‘any such duty’’. 5
	157	+	(g) L
	158	+	IMITATION ONUSERRA PURPOSES.—Section 6
	159	+	4301(a)(1) of such title is amended by striking ‘‘encour-7
	160	+	age noncareer service in the uniformed services’’ and in-8
	161	+	serting ‘‘encourage service in the uniformed services’’. 9
	162	+	(h) R
	163	+	EVIEW ANDREPORT.— 10
137	164		(1) R
138		-	EVIEW.—The Comptroller General of the 15
139		-	United States shall review the methods through ~~which 16~~
140		-	the Secretary of Labor, acting through the ~~Veterans’ 17~~
141		-	Employment and Training Service, ~~processes actions 18~~
142		-	for relief under chapter 43 of title 38, ~~United States 19~~
143		-	Code. 20
	165	+	EVIEW.—The Comptroller General of the 11
	166	+	United States shall review the methods through 12
	167	+	which the Secretary of Labor, acting through the 13
	168	+	Veterans’ Employment and Training Service, proc-14
	169	+	esses actions for relief under chapter 43 of title 38, 15
	170	+	United States Code. 16
144	171		(2) E
145		-	LEMENTS.—Not later than two years after 21
146		-	the date of the enactment of this Act, the Comptroller 22
147		-	General shall submit to the Committees on Veterans’ 23
148		-	Affairs of the House of Representatives and the Senate 24
149		-	a report that includes— 25
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153		-	(A) the findings of the review required 1
154		-	under paragraph (1); 2
155		-	(B) an identification of the number of ac-3
156		-	tions for relief under chapter 43 of title 38, 4
157		-	United States Code, initiated during the period 5
158		-	covered by the report, disaggregated by employer 6
159		-	characteristics, including size and geographic re-7
160		-	gion; 8
161		-	(C) an identification of the number of such 9
162		-	actions for relief that were dismissed, including 10
163		-	the characteristics of such actions and reasons 11
164		-	for dismissal; 12
165		-	(D) an identification of the number of such 13
166		-	actions for relief that were referred to the De-14
167		-	partment of Justice; and 15
168		-	(E) an assessment of trends, if any, in such 16
169		-	actions for relief initiated during such period. 17
170		-	(g) GAO R
171		-	EVIEW OFPROTECTIONS FORMEMBERS OF 18
172		-	THEUNIFORMEDSERVICES BYFEDERALINTELLIGENCE 19
173		-	A
174		-	GENCIES.— 20
175		-	(1) B
176		-	RIEFING.—Not later than one year after the 21
177		-	date of the enactment of this Act, the Comptroller 22
178		-	General of the United States shall provide to the ap-23
179		-	propriate congressional committees a briefing on the 24
180		-	processes and procedures adopted and used by the in-25
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184		-	telligence community to provide the protections for 1
185		-	members of the uniformed services otherwise estab-2
186		-	lished under chapter 43 of title 38, United States 3
187		-	Code. 4
188		-	(2) R
189		-	EPORT.—Not later than 18 months after the 5
190		-	date of the enactment of this Act, the Comptroller 6
191		-	General shall provide to such committees a report on 7
192		-	such processes and procedures. 8
193		-	(3) D
194		-	EFINITIONS.—In this subsection: 9
195		-	(A) The term ‘‘appropriate congressional 10
196		-	committees’’ means the Committees on Veterans’ 11
197		-	Affairs of the House of Representatives and Sen-12
198		-	ate, the Permanent Select Committee on Intel-13
199		-	ligence of the House of Representatives, and the 14
200		-	Select Committee on Intelligence of the Senate. 15
201		-	(B) The term ‘‘intelligence community’’ has 16
202		-	the meaning given such term in section 3(4) of 17
203		-	the National Security Act of 1947 (50 U.S.C. 18
204		-	3003(4)). 19
205		-	SEC. 3. REVIEW OF INVESTIGATIONS MANUAL OF VET-20
206		-	ERANS’ EMPLOYMENT AND TRAINING SERV-21
207		-	ICE. 22
	172	+	LEMENTS.—Not later than one year after 17
	173	+	the date of the enactment of this Act, the Comp-18
	174	+	troller General shall submit to the Committees on 19
	175	+	Veterans’ Affairs of the House of Representatives 20
	176	+	and the Senate a report that includes— 21
	177	+	(A) the findings of the review required 22
	178	+	under paragraph (1); 23
	179	+	(B) an identification of the number of ac-24
	180	+	tions for relief under chapter 43 of title 38, 25
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	184	+	United States Code, initiated during the period 1
	185	+	covered by the report, disaggregated by size of 2
	186	+	employer and geographic region; 3
	187	+	(C) an identification of the number of such 4
	188	+	actions for relief that were erroneously dis-5
	189	+	missed, as determined by the Comptroller Gen-6
	190	+	eral; 7
	191	+	(D) an identification of the number of such 8
	192	+	actions for relief that were referred to the De-9
	193	+	partment of Justice; and 10
	194	+	(E) an assessment of trends, if any, in 11
	195	+	such actions for relief initiated during such pe-12
	196	+	riod. 13
	197	+	SEC. 3. REVIEW OF INVESTIGATIONS MANUAL OF VET-14
	198	+	ERANS’ EMPLOYMENT AND TRAINING SERV-15
	199	+	ICE. 16
208	200		(a) I
209		-	NGENERAL.—Not later than one year after the 23
210		-	date of the enactment of this Act, and once every two years 24
211		-	thereafter for the period of five years beginning on such 25
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215		-	date, the Secretary of Labor, shall review the manual of 1
216		-	the Department of Labor titled ‘‘Veterans’ Employment and 2
217		-	Training Service Investigations Manual: USERRA, VEOA, 3
218		-	and VP’’ (or a successor manual) and make such revisions 4
219		-	to such manual as the Secretary determines appropriate. 5
220		-	(b) R
221		-	EPORT.—Not later than 90 days after any date 6
222		-	on which the Secretary completes a review required under 7
223		-	subsection (a), the Secretary shall submit to the Committees 8
224		-	on Veterans’ Affairs of the House of Representatives and 9
225		-	the Senate— 10
226		-	(1) a report that includes a description of any 11
227		-	revision to such manual made pursuant to such re-12
228		-	view; and 13
229		-	(2) a copy of the entire such manual which— 14
230		-	(A) shall be provided to the Chairman and 15
231		-	Ranking Member of each such committee; and 16
232		-	(B) may contain a separate addendum for 17
233		-	portions of the manual that contain law enforce-18
234		-	ment sensitive materials. 19
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237		-	193
238		-	118
239		-	TH
240		-	CONGRESS
241		-	1
242		-	ST
243		-	S
244		-	ESSION
245		-
246		-	H. R. 3943
247		-	[Report No. 118–241]
248		-	A BILL
249		-	To amend title 38, United States Code, to improve
250		-	the reemployment rights of members of the
251		-	Armed Forces, and for other purposes.
252		-	O
253		-	CTOBER
254		-	2, 2023
255		-	Reported with an amendment, committed to the Com-
256		-	mittee of the Whole House on the State of the Union,
257		-	and ordered to be printed
258		-	VerDate Sep 11 2014 00:06 Oct 03, 2023 Jkt 039200 PO 00000 Frm 00010 Fmt 6651 Sfmt 6651 E:\BILLS\H3943.RH H3943
259		-	kjohnson on DSK7ZCZBW3PROD with $$_JOB
	201	+	NGENERAL.—Not later than one year after the 17
	202	+	date of the enactment of this Act, and biennially there-18
	203	+	after, the Secretary of Labor, shall review the manual of 19
	204	+	the Department of Labor titled ‘‘Veterans’ Employment 20
	205	+	and Training Service Investigations Manual: USERRA, 21
	206	+	VEOA, and VP’’ (or a successor manual) and make such 22
	207	+	revisions to such manual as the Secretary determines ap-23
	208	+	propriate. 24
	209	+	VerDate Sep 11 2014 23:35 Jul 07, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H3943.IH H3943
	210	+	kjohnson on DSK79L0C42PROD with BILLS 8
	211	+	•HR 3943 IH
	212	+	(b) REPORT.—Not later than 90 days after any date 1
	213	+	on which the Secretary completes a review required under 2
	214	+	subsection (a), the Secretary shall submit to the Commit-3
	215	+	tees on Veterans’ Affairs of the House of Representatives 4
	216	+	and the Senate— 5
	217	+	(1) a report that includes a description of any 6
	218	+	revision to such manual made pursuant to such re-7
	219	+	view; and 8
	220	+	(2) a copy of such manual, in unredacted form. 9
	221	+	Æ
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	223	+	kjohnson on DSK79L0C42PROD with BILLS