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H.R. 3943 — what changed

Servicemember Employment Protection Act of 2023

From Introduced in House to Reported in House. 2 sections amended between Introduced in House and Reported in House.

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

(a)
changed Expansion of injunctive relief—USERRA purposes— Subsection (e) of section 4323 Section 4301(a)(1) of title 38, United States Code, is amended—amended by striking “encourage noncareer service in the uniformed services” and inserting “encourage service in the uniformed services”.
(b)
added 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)
added Expansion of injunctive relief— Subsection (e) of section 4323 of such title is amended—
(1)
renumbered was (2)(3) by striking “The court shall use” and inserting “(1) The court shall use”; and
(2)
renumbered was (2)(4) 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

added “(ii) of the provisions of this chapter is threatened or is imminent;

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

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

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

added “(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)
added 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:

removed “(ii) of the provisions of this chapter is threatened or is imminent; and

removed “(B) a likelihood of success on the merits of such action.

removed “(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)
removed Expansion of liquidated damages—
(1)
removed 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.”

(e)
added Mandatory attorney fees award in successful actions for reemployment—
(1)
added MSPB actions— Paragraph (4) of subsection (c) of section 4324 of such title is amended—
(A)
added by striking “may, in its discretion,” and inserting “shall”; and
(B)
added 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)
added Federal Circuit actions— Subsection (d) of such section is amended by adding at the end the following new paragraph:
(2)
removed Damages against Federal executive agencies— Subsection (c) of section 4324 of such title is amended—
(A)
removed by redesignating paragraphs (3) and (4) as paragraphs (4) and (5), respectively; and
(B)
removed by inserting after paragraph (2) the following new paragraph:

removed “(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)
removed Mandatory attorney fees award in successful actions for reemployment—
(1)
removed 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)
removed 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)
removed 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)
removed Repeal of immunity for certain Federal intelligence agencies—
(1)
removed USERRA immunity repealed— Sections 4315 and 4325 of such title are repealed.
(2)
removed Conforming amendment— Section 4313(a) of such title is amended by striking “sections 4314 and 4315” and inserting “section 4314”.
(e)
removed Maintenance of performance review ratings— Section 4312 of such title is amended—
(1)
removed by resdesignating subsections (g) and (h) as subsections (h) and (i); and
(3)
changed Actions against a State or private employer— by inserting after subsection (f) the following new subsection:Paragraph (2) of section 4323(h) of such title is amended—
(A)
added by striking “subsection (a)(2)” and inserting “subsection (a)(3)”; and
(B)
added 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)
added GAO review and report on USERRA—

removed “(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)
removed 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)
removed 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)
removed Review and report—
(1)
renumbered was (9)(2) 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)
added 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—
(2)
removed 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)
renumbered was (9)(3)(3) the findings of the review required under paragraph (1);
(B)
added 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)
added an identification of the number of such actions for relief that were dismissed, including the characteristics of such actions and reasons for dismissal;
(B)
removed 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)
removed an identification of the number of such actions for relief that were erroneously dismissed, as determined by the Comptroller General;
(D)
renumbered was (9)(3)(6) an identification of the number of such actions for relief that were referred to the Department of Justice; and
(E)
renumbered was (9)(3)(7) an assessment of trends, if any, in such actions for relief initiated during such period.
(g)
added GAO review of protections for members of the uniformed services by Federal intelligence agencies—
(1)
added 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)
added 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)
added Definitions— In this subsection:
(A)
added 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)
added 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)).

Sec. 3 Review of investigations manual of Veterans’ Employment and Training Service

(a)
changed In general— Not later than one year after the date of the enactment of this Act, and biennially thereafter, once every two years thereafter for the period of five years beginning on such date, 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)
changed a copy of the entire such manual, in unredacted form.manual which—
(A)
added shall be provided to the Chairman and Ranking Member of each such committee; and
(B)
added may contain a separate addendum for portions of the manual that contain law enforcement sensitive materials.