The Congressional Record is a unique source of public documentation. It started in 1873, documenting nearly all the major and minor policies being discussed and debated.
“USERRA AMENDMENTS ACT OF 1998” mentioning the U.S. Dept of Labor was published in the House of Representatives section on pages H1396-H1399 on March 24, 1998.
The publication is reproduced in full below:
USERRA AMENDMENTS ACT OF 1998
Mr. STUMP. Mr. Speaker, I move to suspend the rules and pass the bill
(H.R. 3213) to amend title 38, United States Code, to clarify enforcement of veterans' employment and reemployment rights with respect to a State as an employer or a private employer, to extend veterans' employment and reemployment rights to members of the uniformed services employed abroad by United States companies, and for other purposes, as amended.
The Clerk read as follows:
H.R. 3213
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``USERRA Amendments Act of 1998''.
SEC. 2. ENFORCEMENT OF RIGHTS WITH RESPECT TO A STATE AS AN
EMPLOYER.
(a) In General.--Section 4323 of title 38, United States Code, is amended to read as follows:
``Sec. 4323. Enforcement of rights with respect to a State or private employer
``(a) Action for Relief.--(1) A person who receives from the Secretary a notification pursuant to section 4322(e) of this title of an unsuccessful effort to resolve a complaint relating to a State (as an employer) or a private employer may request that the Secretary refer the complaint to the Attorney General. If the Attorney General is reasonably satisfied that the person on whose behalf the complaint is referred is entitled to the rights or benefits sought, the Attorney General may appear on behalf of, and act as attorney for, the person on whose behalf the complaint is submitted and commence an action for relief under this chapter for such person. In the case of such an action against a State (as an employer), the action shall be brought in the name of the United States as the plaintiff in the action.
``(2) A person may commence an action for relief with respect to a complaint against a State (as an employer) or a private employer if the person--
``(A) has chosen not to apply to the Secretary for assistance under section 4322(a) of this title;
``(B) has chosen not to request that the Secretary refer the complaint to the Attorney General under paragraph (1); or
``(C) has been refused representation by the Attorney General with respect to the complaint under such paragraph.
``(b) Jurisdiction.--(1) In the case of an action against a State (as an employer) or a private employer commenced by the United States, the district courts of the United States shall have jurisdiction over the action.
``(2) In the case of an action against a State (as an employer) by a person, the action may be brought in a State court of competent jurisdiction in accordance with the laws of the State.
``(3) In the case of an action against a private employer by a person, the district courts of the United States shall have jurisdiction of the action.
``(c) Venue.--(1) In the case of an action by the United States against a State (as an employer), the action may proceed in the United States district court for any district in which the State exercises any authority or carries out any function.
``(2) In the case of an action against a private employer, the action may proceed in the United States district court for any district in which the private employer of the person maintains a place of business.
``(d) Remedies.--(1) In any action under this section, the court may award relief as follows:
``(A) The court may require the employer to comply with the provisions of this chapter.
``(B) The court may require the employer to compensate the person for any loss of wages or benefits suffered by reason of such employer's failure to comply with the provisions of this chapter.
``(C) The court may require the employer to pay the person an amount equal to the amount referred to in subparagraph (B) as liquidated damages, if the court determines that the employer's failure to comply with the provisions of this chapter was willful.
``(2)(A) Any compensation awarded under subparagraph (B) or
(C) of paragraph (1) shall be in addition to, and shall not diminish, any of the other rights and benefits provided for under this chapter.
``(B) In the case of an action commenced in the name of the United States for which the relief includes compensation awarded under subparagraph (B) or (C) of paragraph (1), such compensation shall be held in a special deposit account and shall be paid, on order of the Attorney General, directly to the person. If the compensation is not paid to the person because of inability to do so within a period of three years, the compensation shall be covered into the Treasury of the United States as miscellaneous receipts.
``(3) A State shall be subject to the same remedies, including prejudgment interest, as may be imposed upon any private employer under this section.
``(e) Equity Powers.--The court may use its full equity powers, including temporary or permanent injunctions, temporary restraining orders, and contempt orders, to vindicate fully the rights or benefits of persons under this chapter.
``(f) Standing.--An action under this chapter may be initiated only by a person claiming rights or benefits under this chapter under subsection (a) or by the United States under subsection (a)(1).
``(g) Respondent.--In any action under this chapter, only an employer or a potential employer, as the case may be, shall be a necessary party respondent.
``(h) Fees, Court Costs.--(1) No fees or court costs may be charged or taxed against any person claiming rights under this chapter.
``(2) In any action or proceeding to enforce a provision of this chapter by a person under subsection (a)(2) who obtained private counsel for such action or proceeding, the court may award any such person who prevails in such action or proceeding reasonable attorney fees, expert witness fees, and other litigation expenses.
``(i) Inapplicability of State Statute of Limitations.--No State statute of limitations shall apply to any proceeding under this chapter.
``(j) Definition.--In this section, the term `private employer' includes a political subdivision of a State.''.
(b) Effective Date.--(1) Section 4323 of title 38, United States Code, as amended by subsection (a), shall apply to actions commenced under chapter 43 of such title on or after the date of the enactment of this Act, and shall apply to actions commenced under such chapter before the date of the enactment of this Act that are not final on the date of the enactment of this Act, without regard to when the cause of action accrued.
(2) In the case of any such action against a State (as an employer) in which a person, on the day before the date of the enactment of this Act, is represented by the Attorney General under section 4323(a)(1) of such title as in effect on such day, the court shall upon motion of the Attorney General, substitute the United States as the plaintiff in the action pursuant to such section as amended by subsection (a).
SEC. 3. PROTECTION OF EXTRATERRITORIAL EMPLOYMENT AND
REEMPLOYMENT RIGHTS OF MEMBERS OF THE UNIFORMED
SERVICES.
(a) Definition of Employee.--Section 4303(3) of title 38, United States Code, is amended by adding at the end the following: ``Such term includes any person who is a citizen, national, or permanent resident alien of the United States employed in a workplace in a foreign country by an employer that is an entity incorporated or otherwise organized in the United States or that is controlled by an entity organized in the United States, within the meaning of section 4319(c) of this title.''.
(b) Foreign Countries.--Subchapter II of chapter 43 of such title is amended by inserting after section 4318 the following new section:
``Sec. 4319. Employment and reemployment rights in foreign countries
``(a) Liability of Controlling U.S. Employer of Foreign Entity.--If an employer controls an entity that is incorporated or otherwise organized in a foreign country, any denial of employment, reemployment, or benefit by such entity shall be presumed to be by such employer.
``(b) Inapplicability to Foreign Employer.--This subchapter does not apply to foreign operations of an employer that is a foreign person not controlled by an United States employer.
``(c) Determination of Controlling Employer.--For the purpose of this section, the determination of whether an employer controls an entity shall be based upon the interrelations of operations, common management, centralized control of labor relations, and common ownership or financial control of the employer and the entity.
``(d) Exemption.--Notwithstanding any other provision of this subchapter, an employer, or an entity controlled by an employer, may--
``(1) discriminate within the meaning of section 4311 of this title;
``(2) deny reemployment rights within the meaning of section 4312, 4313, 4314, or 4315 of this title; or
``(3) deny benefits within the meaning of section 4316, 4317, or 4318 of this title,with respect to an employee in a workplace in a foreign country, if compliance with any such section would cause such employer, or such entity controlled by an employer, to violate the law of the foreign country in which the workplace is located.''.
(c) Clerical Amendment.--The table of sections at the beginning of chapter 43 of such title is amended by inserting after the item relating to section 4318 the following new item:
``4319. Employment and reemployment rights in foreign countries.''.
(d) Effective Date.--The amendments made by this section shall apply only with respect to conduct occurring after the date of the enactment of this Act.
SEC. 4. COMPLAINTS RELATING TO REEMPLOYMENT OF MEMBERS OF THE
UNIFORMED SERVICES IN FEDERAL SERVICE.
(a) In General.--The first sentence of paragraph (1) of section 4324(c) of title 38, United States Code, is amended by inserting before the period at the end the following: ``, without regard as to whether the complaint accrued before, on, or after October 13, 1994''.
(b) Effective Date.--The amendment made by subsection (a) shall apply to all complaints filed with the Merit Systems Protection Board on or after October 13, 1994.
The SPEAKER pro tempore. Pursuant to the rule, the gentleman from Arizona (Mr. Stump) and the gentleman from Illinois (Mr. Evans) each will control 20 minutes.
The Chair recognizes the gentleman from Arizona (Mr. Stump).
(Mr. STUMP asked and was given permission to revise and extend his remarks.)
General Leave
Mr. STUMP. Mr. Speaker, I ask unanimous consent that all Members may have 5 legislative days within which to revise and extend their remarks on H.R. 3213.
The SPEAKER pro tempore. Is there objection to the request of the gentleman from Arizona?
There was no objection.
Mr. STUMP. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, H.R. 3213 clarifies enforcement of the Uniformed Services Employment and Reemployment Rights Act with respect to State governments. It would also include U.S. employers in foreign countries under the provisions of this act. Many committee members from both sides of the aisle contributed to this bill and their efforts are appreciated.
Mr. Speaker, I reserve the balance of my time.
Mr. EVANS. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, I wish to thank the chairman of the full committee for his bipartisan work again on this important bill to restore and strengthen the employment and reemployment rights of those who have served in our country's Armed Forces.
I also want to thank the gentleman from California (Mr. Filner), the ranking member of the Subcommittee on Benefits, for introducing this legislation last year. The bill brought to our attention the need to restore the employment and reemployment rights of State employees following a 1996 subcommittee decision that had the effect of terminating their rights.
I also want to thank the gentleman from New York (Mr. Quinn), chairman of the subcommittee, for introducing this bill before us today, H.R. 3213, which incorporates several important provisions to protect the rights of our servicemembers. Federal law must assure that the appropriate remedies are available when violations of employment or reemployment rights to servicemembers threaten our Nation's ability to obtain and attract a strong military force.
Federal law protecting employment and reemployment rights for servicemembers has been in effect since the days before World War II. By passing this bill, we are fulfilling our duty to provide for the common defense of our Nation. With the need to utilize the resources of the National Guard and Reserves to meet our Total Force military responsibilities, it is essential that those who volunteer to serve our country be protected by adequate safeguards of their right to obtain and retain suitable civilian employment.
I want to thank my colleagues again, especially the gentleman from New York (Mr. Quinn), the gentleman from California (Mr. Filner), and the chairman for their hard work that they put in in bringing this bill to the floor today.
Mr. Speaker, I wish to thank the Chairman of the Full Committee for his bipartisan work on this important bill to restore and strengthen the employment and re-employment rights of those who have served our country in the Armed Forces. I wish to thank the Ranking Democratic Member of the Subcommittee on Benefits, Mr. Filner for introducing H.R. 166 last year. This bill brought to our attention the need to restore the employment and re-employment rights of State employees following a 1996 Subcommittee decision that had the effect of terminating their rights.
I also wish to thank the Chairman of the Subcommittee on Benefits, Mr. Quinn for introducing the bill before us, H.R. 3213, which incorporates several important provisions to protect the rights of our servicemembers. Federal law must assure that appropriate remedies are available when violations of the employment or re-employment rights of servicemembers threaten our nation's ability to attain and maintain a strong military force.
This bill will correct several deficiencies in present law. Specifically, this bill will provide remedies for violations of employment and re-employment rights of servicemembers by:
Providing the federal government with a means of enforcing servicemembers' employment and re-employment rights in federal court;
Providing a remedy for servicemembers who are employed in foreign lands by United States corporations; and
Providing for review of certain complaints involving violation of servicemembers' rights by federal employers.
The need for this legislation became apparent after the Supreme Court's 1996 ruling in Seminole Tribe of Florida v. Florida, 116 S. Ct. 1114, that Congress was precluded by the Eleventh amendment from providing a federal forum for suits under laws enacted pursuant to the Commerce Clause of the United States Constitution. Although the authority for laws involving veterans benefits is derived from the War Powers clause, several courts have held the reasoning of the Seminole Tribe case precludes federal court jurisdiction of claims to enforce federal rights of State employees under the Uniformed Service Employment and Re-employment Rights Act (USERRA).
Federal law protecting employment and re-employment rights of servicemembers has been in effect since 1940. No claim of Eleventh amendment immunity from suit to enforce those rights in federal court had been granted until after the Supreme Court's Seminole Tribe decision. Several courts have now ruled that the Eleventh amendment bars suit to enforce the present law governing the employment and re-
employment rights of State employees.
By passing this bill, we are fulfilling our Constitutional duty to
``provide for the common Defence'' of our nation. With the need to utilize the resources of the National Guard and Reserves to meet our Total Force military responsibilities, it is essential that those who volunteer to serve our country be protected by adequate safeguards of their right to obtain and retain suitable civilian employment.
The United States has a strong national interest in assuring that its military readiness will not be undermined by policies and practices which can deter competent and qualified citizens from military service, including the Guard and Reserve. This bill assures that the federal government's interest in protecting the employment and re-employment rights of our military personnel can be fully exercised in those cases where the employer is a State government. The ability of the United States to attract and retain the competent and qualified personnel necessary to meet our national security interests will be undermined absent a remedy which the federal government can pursue for egregious violations of veterans' rights.
This bill would permit the United States to bring such an action, thereby protecting the federal government's responsibility to provide for the national defense.
In addition, this bill extends the protection of employment and re-
employment rights to veterans who are employed in foreign lands by United States corporations. In EEOC v. Arabian American Oil Co., 111 S. Ct. 1227 (1991), the Supreme Court considered the issue of the extraterritorial application of Title VII of the Civil Rights Act of 1964 and held that there is a presumption against such application of U.S. laws. The Court also noted that the presumption can be overcome by a clear expression of congressional intent to apply a particular statute outside the United States. This clear expression is desirable in order to fully apply the universal coverage principle that has been inherent in veterans' employment and re-employment rights since the law's inception.
Finally the bill provides specific authority to the Federal Merit Protection Board to hear certain complaints involving federal employers, regardless of when the complaint arose. The basis for this change is the case of Monsivais v. Department of Justice (Three Rivers Bureau of Prisons). Mr. Monsivais had been charged with being absent from work without leave due to his participation in required military training after the Bureau of Prisons had refused his request for a military leave of absence. On March 17, 1997, the Office of the Special Counsel determined that even though the Bureau of Prison's alleged violations were prohibited under the prior version of the law, the Veteran's Reemployment Rights Act (VRRA), it was unable to represent Mr. Monsivais because the alleged violation of the law arose under the statute which preceded the enactment of USERRA on October 13, 1994. Because the VRRA did not provide for enforcement by the Office of the Special Counsel, there was no forum to address this violation. The provisions of this bill will allow for representation by the Office of the Special Counsel of persons before the Merit Systems Protection Board for pre-USERRA causes of action which are alleged to be violations of the VRRA statute. Jurisdiction of the Merit Systems Protection Board is extended to all claims filed with the Board after October 13, 1994 regardless of whether the action complained of occurred before, on, or after that date.
I thank my colleagues, especially Mr. Quinn, Chairman of the Subcommittee on Benefits and Mr. Filner the Ranking Member of that subcommittee for their hard work in bringing this bill to the floor and recommend its passage.
Mr. Speaker, I reserve the balance of my time.
Mr. STUMP. Mr. Speaker, I yield such time as he may consume to the gentleman from New York (Mr. Quinn), the chairman of the Subcommittee on Benefits, for further explanation of H.R. 3213.
Mr. QUINN. Mr. Speaker, for the record, I just want to mention that USERRA, the Uniformed Services Employment and Reemployment Rights Act, is the continuation of policy which was originally enacted in 1940 Public Law 76-96. Its purpose is to provide persons who serve for a limited period in the U.S. Armed Forces the right to return to civilian employment. This law applies to all employers, regardless of their size. It is particularly important today to persons serving in the Guard and Reserve.
This bill would substitute the United States for an individual veteran as the plaintiff in enforcement actions in cases where the Attorney General believes that a State has not complied with USERRA. Since the Attorney General, through U.S. Attorneys, is already involved in enforcing this law, this will not impose any new duties on the Department of Justice. Individuals not represented by the Attorney General would be able to bring enforcement actions in State court.
The bill also makes a technical change to USERRA suggested by the Department of Labor concerning overseas employees of U.S. companies and another needed change affecting Federal employee enforcement rights that was discovered as a result of hearings held some 2 years ago.
In summary, Mr. Speaker, we are looking at State employees to be granted the same rights under USERRA as any other veteran or member of the Guard and Reserve who works in the private sector or the Federal Government.
I want to suggest to our colleagues that we support 3213. And finally, as others have, thanks to the ranking member of the committee, the gentleman from California (Mr. Filner); of course, the gentleman from Illinois (Mr. Evans), the ranking member of the full committee; and the gentleman from Arizona (Mr. Stump), the chairman, for their cooperation with the subcommittee in bringing the hearings together and also in bringing the bill to the floor today.
Mr. EVANS. Mr. Speaker, I yield 3 minutes to the gentleman from California (Mr. Filner).
Mr. FILNER. Mr. Speaker, I thank the gentleman for yielding me the time; and I thank the gentleman from New York (Mr. Quinn) for working so closely with the members of the subcommittee to make sure that after the problem was identified, we came up with the consensus rather quickly to solve it for the men and women in our armed forces.
Mr. Speaker, I am pleased also to be an original cosponsor of H.R. 3213, what we call the USERRA Amendments Act of 1998. The measure is similar to H.R. 166, the Veterans' Job Protection Act that I introduced at the beginning of this Congress. It was clear to me that the 1996 Supreme Court decision that was referred to by Chairman Quinn would adversely affect members of the uniformed services employed by State governments and that legislation would be required to fix the problem.
H.R. 3213 will accomplish this goal and restore the employment and reemployment protections that have been provided for over 50 years to State employees who are also citizen-soldiers. There have already been at least two court decisions that rule against the veterans involved, so I am pleased that the House is now acting on this matter.
Mr. Speaker, since colonial days, the citizen-soldier has been one of America's oldest and most venerated military traditions; and members of the Reserve and National Guard are a critical component of our national defense. Since the adoption of the Total Force Policy in 1973, which recognized that all of America's military should be readily available to provide for the common defense, these men and women have been tasked with greater responsibility for nearly every phase of military preparedness.
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We all remember the crucial role members of the Guard and Reserves played in the successful conduct of the Persian Gulf War and the sacrifices these individuals made to serve their country. Literally hundreds of thousands of our citizen soldiers, many with little more than 48 hours' notice, left their families and their jobs to answer their country's call to arms. Because the law protects veterans' reemployment rights, these brave men and women were able to contribute enormously to the Gulf War effort with the assurance that their civilian employment would be available to them following their military service.
Mr. Speaker, as a result of the Supreme Court decision in 1996, members of the Guard and Reserves who are State employees were no longer to have that job protection provided for all other members of the uniformed services. The enactment of H.R. 3213 will restore this very important protection. I urge all my colleagues to support this legislation.
Mr. STUMP. Mr. Speaker, I yield 2 minutes to the gentleman from New York (Mr. Quinn), the chairman of the Subcommittee on Benefits.
Mr. QUINN. Mr. Speaker, I appreciate the gentleman yielding me this time to sort of speak a little bit out of turn, not on the topic of this bill but there is another bill that we were going to discuss today and we have not included it. That is H.R. 3039, the bill we call the Veterans Transitional Housing bill. We are not dealing with it today and will not until later this year because the Committee on the Budget has asked for more time to review the bill, which makes sense to me.
Mr. Speaker, we said in both the hearing which we held here in Washington and in a hearing held in Buffalo, New York late last year that a lot of Americans, indeed a lot of veterans are not aware that of all the homeless people in this country, fully one-third of them are veterans, people who have served their country at various points in our history and in their past. As we try to do whatever we can to bring services together to deal with this homelessness, particularly as it deals with veterans, there are a number of other Members here and certainly those on the committee who are concerned that this transitional housing bill, H.R. 3039, does come up later this year, possibly in May or June. I want to make certain the Committee on the Budget knows we will be working with them in every way possible to bring the bill up later this year.
Mr. EVANS. Mr. Speaker, I yield 3 minutes to the gentleman from Texas
(Mr. Rodriguez), a very able member of our committee.
Mr. RODRIGUEZ. Mr. Speaker, I rise in strong support of this bill which would advance the protections of the landmark Uniformed Services Employment and Reemployment Rights Act. Since 1940, USERRA has been the source of employment protection and remedies for veterans and reservists against all employers, government and private. Veterans and members of the armed services have had to fight for some of these rights in the courts. This bill addresses the problems which employees have faced against individual State employers and U.S. employers which control a foreign entity. I wish to focus on the provisions of H.R. 3213, which would expand veterans and uniformed service employment rights to employees in a foreign country working for an entity controlled by a U.S. company. Let me give my colleagues an example. We have individuals in the maquiladoras right across the border in Mexico. If they are called into the service of this country, we want to make sure that those individuals will be able to keep their jobs when they return. This bill provides that if a U.S. employer controls that overseas entity where the reservist works, then any denial of employment, reemployment or benefits by that foreign entity will be actionable against the U.S. employer. Foreign countries should not worry about this law imposing on their sovereignty, since the bill specifically does not apply when employer compliance would violate the law of the foreign country in which the workplace is located.
Mr. Speaker, I also would add that every effort needs to be made to assure that these individuals that have given of themselves and that are called to defend this country and called to serve this country, to make sure when they get back that that particular job is there waiting for them. I welcome this legislation and commend the House for its swift passage. I want to thank both the chairman and the ranking member of the committee for their work on this measure.
Mr. EVANS. Mr. Speaker, I have no further requests for time, and I yield back the balance of my time.
Mr. STUMP. Mr. Speaker, I yield myself such time as I may consume. Once again I would like to thank the gentleman from New York (Mr. Quinn) and the gentleman from California (Mr. Filner), chairman and ranking member of the Subcommittee on Benefits as well as the gentleman from Illinois (Mr. Evans), the ranking Democrat on the full committee for all their contributions to this bill. Once again this is a bipartisan bill. I urge all Members to support it.
Mr. GILMAN. Mr. Speaker, I rise today in strong support of H.R. 3213, a bill to clarify the enforcement of veterran's employment rights. This legislation clarifies the enforcement of veteran's employment rights in regards to state employers and extends these rights to veterans employed overseas by American companies.
More specifically, this bill makes certain procedural changes to the enforcement of the Uniformed Services Employment and Reemployment Rights Act (USERRA) in response to a 1996 Supreme Court decision which held that the 11th amendment precluded congressionally authorized suits by private parties against nonconsenting states.
In response to this decision, this bill substitutes the United States for an individual veteran as the plaintiff in enforcement actions in cases where the attorney general believes that a state has not complied with USERRA law.
Furthermore, this bill applies USERRA law to U.S. employers in foreign countries. It does allow an exception when employer compliance would violate the law of the country where the workplace is located. It also requires direct payment of any claim compensation which is considered lost wages, benefits, or liquidated damages and clarifies that the merit systems protection board has jurisdiction to hear complaints brought by federal employees without regard to when the complaint was filed.
Mr. Speaker, one of the most important benefits to those who serve in our nation's military is veterans preference in future employment once they have left the armed forces. This legislation helps make this benefit more available to our veterans, who have earned it through their service to their country.
I urge my colleagues to join in supporting this worthwhile measure.
Mr. STUMP. Mr. Speaker, I have no further requests for time, and I yield back the balance of my time.
The SPEAKER pro tempore (Mr. Foley). The question is on the motion offered by the gentleman from Arizona (Mr. Stump) that the House suspend the rules and pass the bill, H.R. 3213, as amended.
The question was taken; and (two-thirds having voted in favor thereof) the rules were suspended and the bill, as amended, was passed.
A motion to reconsider was laid on the table.
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