IB Union Calendar No. 193 118TH CONGRESS 1ST SESSION H. R. 3943 [Report No. 118–241] 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 JUNE 9, 2023 Mr. C. SCOTT FRANKLIN of Florida (for himself and Mr. BOST) introduced the following bill; which was referred to the Committee on Veterans’ Affairs OCTOBER 2, 2023 Reported with an amendment, committed to the Committee of the Whole House on the State of the Union, and ordered to be printed [Strike out all after the enacting clause and insert the part printed in italic] [For text of introduced bill, see copy of bill as introduced on June 9, 2023] VerDate Sep 11 2014 00:06 Oct 03, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6652 E:\BILLS\H3943.RH H3943 kjohnson on DSK7ZCZBW3PROD with $$_JOB 2 •HR 3943 RH A BILL To amend title 38, United States Code, to improve the reemployment rights of members of the Armed Forces, and for other purposes. VerDate Sep 11 2014 00:06 Oct 03, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6652 E:\BILLS\H3943.RH H3943 kjohnson on DSK7ZCZBW3PROD with $$_JOB 3 •HR 3943 RH 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 Employ- 4 ment Protection Act of 2023’’. 5 SEC. 2. IMPROVEMENTS TO REEMPLOYMENT RIGHTS OF 6 MEMBERS OF THE ARMED FORCES. 7 (a) USERRA PURPOSES.—Section 4301(a)(1) of title 8 38, United States Code, is amended by striking ‘‘encourage 9 noncareer service in the uniformed services’’ and inserting 10 ‘‘encourage service in the uniformed services’’. 11 (b) PROHIBITION OF RETALIATION.—Subsection (b) of 12 section 4311 of title 38, United States Code, is amended 13 by inserting ‘‘or other retaliatory action’’ after ‘‘employ- 14 ment action’’. 15 (c) EXPANSION OF INJUNCTIVE RELIEF.—Subsection 16 (e) of section 4323 of such title is amended— 17 (1) by striking ‘‘The court shall use’’ and insert- 18 ing ‘‘(1) The court shall use’’; and 19 (2) by adding at the end the following new para- 20 graphs: 21 ‘‘(2) A person bringing an action to enforce a provi- 22 sion of this chapter pursuant to subsection (a) shall be enti- 23 tled to an injunction under paragraph (1) if such person 24 demonstrates— 25 VerDate Sep 11 2014 00:06 Oct 03, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6203 E:\BILLS\H3943.RH H3943 kjohnson on DSK7ZCZBW3PROD with $$_JOB 4 •HR 3943 RH ‘‘(A) a violation— 1 ‘‘(i) of the provisions of this chapter; or 2 ‘‘(ii) of the provisions of this chapter is 3 threatened or is imminent; 4 ‘‘(B) the harm to the person outweighs the injury 5 to the employer; 6 ‘‘(C) a likelihood of success on the merits of such 7 action; and 8 ‘‘(D) awarding such relief is in the public inter- 9 est. 10 ‘‘(3) The court may not deny a motion for injunctive 11 relief on the basis that a party bringing an action to enforce 12 a provision of this chapter may be awarded wages unearned 13 due to an unlawful termination or denial of employment 14 at the conclusion of such action.’’. 15 (d) DAMAGES AGAINST A STATE OR PRIVATE EM- 16 PLOYER.—Section 4323 of such title is further amended, in 17 paragraph (1) of subsection (d), by striking subparagraph 18 (C) and inserting the following new subparagraphs: 19 ‘‘(C) The court may require the employer to pay 20 the person the amount referred to in subparagraph 21 (B) and interest on such amount, calculated at a rate 22 of 3 percent per year. 23 ‘‘(D) The court may require the employer to pay 24 the person the greater of $50,000 or the amount equal 25 VerDate Sep 11 2014 00:06 Oct 03, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6203 E:\BILLS\H3943.RH H3943 kjohnson on DSK7ZCZBW3PROD with $$_JOB 5 •HR 3943 RH to the amounts referred to in subparagraphs (B) and 1 (C) as liquidated damages, if the court determines 2 that the employer knowingly failed to comply with the 3 provisions of this chapter.’’. 4 (e) MANDATORY ATTORNEY FEES AWARD IN SUCCESS- 5 FUL ACTIONS FOR REEMPLOYMENT.— 6 (1) MSPB ACTIONS.—Paragraph (4) of sub- 7 section (c) of section 4324 of such title is amended— 8 (A) by striking ‘‘may, in its discretion,’’ 9 and inserting ‘‘shall’’; and 10 (B) by adding at the end the following new 11 sentence: ‘‘The Board may, in its discretion, 12 award reasonable attorney fees in a case settled 13 before the issuance of an order if the person can 14 demonstrate that significant attorney fees were 15 incurred and that justice requires such an 16 award.’’. 17 (2) FEDERAL CIRCUIT ACTIONS.—Subsection (d) 18 of such section is amended by adding at the end the 19 following new paragraph: 20 ‘‘(3) In such Federal Circuit proceeding, the court shall 21 award such person reasonable attorney fees, expert witness 22 fees, and other litigation expenses if such person— 23 ‘‘(A) prevails in such Federal Circuit proceeding; 24 and 25 VerDate Sep 11 2014 00:06 Oct 03, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6203 E:\BILLS\H3943.RH H3943 kjohnson on DSK7ZCZBW3PROD with $$_JOB 6 •HR 3943 RH ‘‘(B) is not represented by the Special Counsel in 1 such Federal Circuit proceeding.’’. 2 (3) ACTIONS AGAINST A STATE OR PRIVATE EM- 3 PLOYER.—Paragraph (2) of section 4323(h) of such 4 title is amended— 5 (A) by striking ‘‘subsection (a)(2)’’ and in- 6 serting ‘‘subsection (a)(3)’’; and 7 (B) by striking ‘‘the court may award any 8 such person who prevails in such action or pro- 9 ceeding reasonable attorney fees’’ and inserting 10 ‘‘the court shall award any such person who pre- 11 vails in such action or proceeding reasonable at- 12 torney fees’’. 13 (f) GAO REVIEW AND REPORT ON USERRA.— 14 (1) REVIEW.—The Comptroller General of the 15 United States shall review the methods through which 16 the Secretary of Labor, acting through the Veterans’ 17 Employment and Training Service, processes actions 18 for relief under chapter 43 of title 38, United States 19 Code. 20 (2) ELEMENTS.—Not later than two years after 21 the date of the enactment of this Act, the Comptroller 22 General shall submit to the Committees on Veterans’ 23 Affairs of the House of Representatives and the Senate 24 a report that includes— 25 VerDate Sep 11 2014 00:06 Oct 03, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6203 E:\BILLS\H3943.RH H3943 kjohnson on DSK7ZCZBW3PROD with $$_JOB 7 •HR 3943 RH (A) the findings of the review required 1 under paragraph (1); 2 (B) an identification of the number of ac- 3 tions for relief under chapter 43 of title 38, 4 United States Code, initiated during the period 5 covered by the report, disaggregated by employer 6 characteristics, including size and geographic re- 7 gion; 8 (C) an identification of the number of such 9 actions for relief that were dismissed, including 10 the characteristics of such actions and reasons 11 for dismissal; 12 (D) an identification of the number of such 13 actions for relief that were referred to the De- 14 partment of Justice; and 15 (E) an assessment of trends, if any, in such 16 actions for relief initiated during such period. 17 (g) GAO REVIEW OF PROTECTIONS FOR MEMBERS OF 18 THE UNIFORMED SERVICES BY FEDERAL INTELLIGENCE 19 AGENCIES.— 20 (1) BRIEFING.—Not later than one year after the 21 date of the enactment of this Act, the Comptroller 22 General of the United States shall provide to the ap- 23 propriate congressional committees a briefing on the 24 processes and procedures adopted and used by the in- 25 VerDate Sep 11 2014 00:06 Oct 03, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6203 E:\BILLS\H3943.RH H3943 kjohnson on DSK7ZCZBW3PROD with $$_JOB 8 •HR 3943 RH telligence community to provide the protections for 1 members of the uniformed services otherwise estab- 2 lished under chapter 43 of title 38, United States 3 Code. 4 (2) REPORT.—Not later than 18 months after the 5 date of the enactment of this Act, the Comptroller 6 General shall provide to such committees a report on 7 such processes and procedures. 8 (3) DEFINITIONS.—In this subsection: 9 (A) The term ‘‘appropriate congressional 10 committees’’ means the Committees on Veterans’ 11 Affairs of the House of Representatives and Sen- 12 ate, the Permanent Select Committee on Intel- 13 ligence of the House of Representatives, and the 14 Select Committee on Intelligence of the Senate. 15 (B) The term ‘‘intelligence community’’ has 16 the meaning given such term in section 3(4) of 17 the National Security Act of 1947 (50 U.S.C. 18 3003(4)). 19 SEC. 3. REVIEW OF INVESTIGATIONS MANUAL OF VET- 20 ERANS’ EMPLOYMENT AND TRAINING SERV- 21 ICE. 22 (a) IN GENERAL.—Not later than one year after the 23 date of the enactment of this Act, and once every two years 24 thereafter for the period of five years beginning on such 25 VerDate Sep 11 2014 00:06 Oct 03, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6203 E:\BILLS\H3943.RH H3943 kjohnson on DSK7ZCZBW3PROD with $$_JOB 9 •HR 3943 RH date, the Secretary of Labor, shall review the manual of 1 the Department of Labor titled ‘‘Veterans’ Employment and 2 Training Service Investigations Manual: USERRA, VEOA, 3 and VP’’ (or a successor manual) and make such revisions 4 to such manual as the Secretary determines appropriate. 5 (b) REPORT.—Not later than 90 days after any date 6 on which the Secretary completes a review required under 7 subsection (a), the Secretary shall submit to the Committees 8 on Veterans’ Affairs of the House of Representatives and 9 the Senate— 10 (1) a report that includes a description of any 11 revision to such manual made pursuant to such re- 12 view; and 13 (2) a copy of the entire such manual which— 14 (A) shall be provided to the Chairman and 15 Ranking Member of each such committee; and 16 (B) may contain a separate addendum for 17 portions of the manual that contain law enforce- 18 ment sensitive materials. 19 VerDate Sep 11 2014 00:06 Oct 03, 2023 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6203 E:\BILLS\H3943.RH H3943 kjohnson on DSK7ZCZBW3PROD with $$_JOB Union Calendar No. 193 118TH CONGRESS 1ST SESSION H. R. 3943 [Report No. 118–241] A BILL To amend title 38, United States Code, to improve the reemployment rights of members of the Armed Forces, and for other purposes. OCTOBER 2, 2023 Reported with an amendment, committed to the Com- mittee of the Whole House on the State of the Union, and ordered to be printed VerDate Sep 11 2014 00:06 Oct 03, 2023 Jkt 039200 PO 00000 Frm 00010 Fmt 6651 Sfmt 6651 E:\BILLS\H3943.RH H3943 kjohnson on DSK7ZCZBW3PROD with $$_JOB