A bill introduced last week would amend several provisions of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). The Servicemembers Access to Justice Act of 2009 (H.R. 1474) adds a number of new sections that, among other things, enhance USERRA enforcement and increase employer penalties in the event of a violation.
USERRA ensures that employees leaving their jobs to enter the military or return to active reserve duty are guaranteed that they can later resume their civilian jobs without loss of benefits, pay rate or seniority. The new bill includes additional protections, including a provision clarifying that USERRA prohibits wage discrimination against members of the armed forces. The bill also creates a multi-factor test to define “successor in interest” under the Act, including substantial continuity of the same business operations, use of the same plant, and continuity of the work force. The successor’s lack of awareness of a potential or pending claim at the time of the merger, acquisition, or other form of succession shall not be considered when applying the multi-factor test.
Other new provisions include one that would render pre-dispute arbitration agreements regarding claims arising under USERRA unenforceable. The bill makes an exception for voluntary waivers or agreements made after the dispute arises, and exempts arbitration provisions in collective bargaining agreements.
In terms of enhanced remedies, in the event of a USERRA violation, an employee would be entitled to receive actual damages or compensatory damages in the amount of “any wages, salary, benefits, or other compensation denied or lost by such person by reason of the violation,” plus an award of liquidated damages in the above amount or $10,000, whichever is greater. If the employer can show that the act or omission giving rise to the USERRA violation was in good faith, then the liquidated damages provision would not apply. The bill also entitles an employee to an award of punitive damages if the employer has more than 25 employees and the employee can prove that the employer’s actions/omissions giving rise to the USERRA claim were done with malice or reckless indifference to the employee’s rights. The new bill also entitles an employee to a jury trial and an award of attorney’s fees.
The new bill would also require the Comptroller General of the United States to conduct a study and report the findings to Congress by December 31, 2009, regarding, among other things, the availability and effectiveness of Federal programs to educate employers on their obligations under USERRA and to determine whether the Employer Support for the Guard and Reserve, the Small Business Administration, or other agencies could collaborate to develop educational compliance programs. The Comptroller General must also identify best practices for bringing the employment practices of small businesses into compliance.
This bill has been referred to the House Committees on Veterans’ Affairs, Armed Services, and Oversight and Government Reform.