Sec. 543. Enforcement of rights under chapter 43 of title 38, United States Code, with respect to a State or private employer
1,630 words·~7 min read·
/bill/114/s/2814/is/section-543A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
chapter 43 of title 38, United States Code, with respect to a State or private employer Paragraph
(1)of subsection
(a)of section 4323 of title 38, United States Code, is amended by striking the third sentence and inserting the following new sentences: 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 commence an action for relief under this chapter. The person on whose behalf the complaint is referred may, upon timely application, intervene in such action and may obtain such appropriate relief as provided in subsections
(d)and (e). . Paragraph
(2)of such subsection is amended to read as follows: Not later than 60 days after the date the Attorney General receives a referral under paragraph (1), the Attorney General shall transmit, in writing, to the person on whose behalf the complaint is submitted— if the Attorney General has made a decision about whether the United States will commence an action for relief under paragraph
(1)relating to the complaint of the person, notice of the decision; and if the Attorney General has not made such a decision, notice of when the Attorney General expects to make such a decision. If the Attorney General notifies a person of when the Attorney General expects to make a decision under subparagraph (A)(ii), the Attorney General shall, not later than 30 days after the date on which the Attorney General makes such decision, notify, in writing, the person of such decision. . Such subsection is further amended— by redesignating paragraph
(3)as paragraph (4); and by inserting after paragraph
(2)(as amended by paragraph
(2)of this subsection) the following new paragraph (3): Whenever the Attorney General has reasonable cause to believe that a State (as an employer) or a private employer is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights or benefits secured by this chapter, the Attorney General may commence an action under this chapter. . Subparagraph
(C)of paragraph
(4)of such subsection, as redesignated by paragraph (3)(A), is amended by striking refused and all that follows and inserting notified by the Department of Justice that the Attorney General does not intend to bring a civil action. . Subsection (h)(2) of such section is amended by striking subsection (a)(2) and inserting subsection (a)(1) or subsection (a)(4) . Paragraph
(2)of subsection
(b)of section 4323 of such title is amended to read as follows: In the case of an action against a State (as an employer), any instrumentality of a State, or any officer or employee of a State or instrumentality of a State acting in that officer or employee’s official capacity, by any person, the action may be brought in the appropriate district court of the United States or in a State court of competent jurisdiction, and the State, instrumentality of the State, or officer or employee of the State or instrumentality acting in that officer or employee’s official capacity shall not be immune under the Eleventh Amendment of the Constitution, or under any other doctrine of sovereign immunity, from such action. No State, instrumentality of such State, or officer or employee of such State or instrumentality of such State, acting in that officer or employee’s official capacity, that receives or uses Federal financial assistance for a program or activity shall be immune, under the Eleventh Amendment of the Constitution or under any other doctrine of sovereign immunity, from suit in Federal or State court by any person for any violation under this chapter related to such program or activity. In an action against a State brought pursuant to subsection (a), a court may award the remedies (including remedies both at law and in equity) that are available under subsections
(d)and (e). . Subsection (c)(2) of such section is amended by striking United States district court for any district in which the private employer of the person maintains a place of business. and inserting United States district court for— any district in which the employer maintains a place of business; any district in which a substantial part of the events or omissions giving rise to the claim occurred; or if there is no district in which an action may otherwise be brought as provided in subparagraph
(A)or (B), any district in which the employer is subject to the court’s personal jurisdiction with respect to such action. . Subsection (d)(1) of such section is amended by striking subparagraph
(C)and inserting the following new subparagraphs: The court may require the employer to pay the person compensatory damages suffered by reason of such employer’s failure to comply with the provisions of this chapter. The court may require the employer (other than a government, government agency, or political subdivision) to pay the person punitive damages if the court determines that the employer failed to comply with the provisions of this chapter with reckless indifference to the federally protected rights of the person. The sum of the amount of compensatory damages awarded under subparagraph
(C)and the amount of punitive damages awarded under subparagraph
(D)may not exceed, for each person the following: In the case of an employer who has more than 14 and fewer than 101 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $50,000. In the case of an employer who has more than 100 and fewer than 201 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $100,000. In the case of an employer who has more than 200 and fewer than 501 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $200,000. In the case of an employer who has more than 500 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $300,000. . Subsection (d)(2) of such section is amended to read as follows: Any compensation awarded under subparagraph (B), (C), or
(D)of paragraph
(1)shall be in addition to, and shall not diminish, any of the other rights and benefits provided for under this chapter. In the case of an action commenced in the name of the United States for which the relief includes compensation awarded under subparagraph (B), (C), or
(D)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 3 years, the compensation shall be covered into the Treasury of the United States as miscellaneous receipts. . Subsection
(f)of such section is amended— by inserting by the United States or after may be initiated only ; and by striking or by the United States under subsection (a)(1) . Such section is further amended by adding at the end the following new subsection: Whenever the Attorney General has reason to believe that any person may be in possession, custody, or control of any documentary material relevant to an investigation under this chapter, the Attorney General may, before commencing a civil action under subsection (a), issue in writing and cause to be served upon such person, a civil investigative demand requiring— the production of such documentary material for inspection and copying; that the custodian of such documentary material answer in writing written questions with respect to such documentary material; or the production of any combination of such documentary material or answers. The provisions governing the authority to issue, use, and enforce civil investigative demands under section 3733 of title 31 (known as the False Claims Act ) shall govern the authority to issue, use, and enforce civil investigative demands under paragraph (1), except that for purposes of that paragraph— a reference in that section to false claims law investigators or investigations shall be applied as referring to investigators or investigations under this chapter; a reference to interrogatories shall be applied as referring to written questions, and answers to such need not be under oath; the statutory definitions for purposes of that section relating to ‘false claims law’ shall not apply; and provisions of that section relating to qui tam relators shall not apply. . Subsection
(b)of section 4318 of such title is amended— in paragraph (3)(B), by striking on the basis of and all that follows and inserting on the basis specified in paragraph (4). ; and by adding at the end the following new paragraph: The basis for a computation under paragraph
(3)to which subparagraph
(B)of that paragraph applies is as follows: If the period of service described in subsection (a)(2)(B) is one year or less, the computation shall be made on the basis of the employee’s average rate of compensation during the 12-month period immediately preceding such period or, if shorter, the period of employment immediately preceding such period. If the period of such service is more than one year, the computation shall be made on the basis of the average rate of compensation during such period of service of employees of that employer who are similarly situated to the servicemember in terms of having similar seniority, status, and pay. . Subsection (a)(3) of section 4313 of such title is amended by inserting including a disability that is brought to the employer’s attention within five years after the person resumes employment, after during, such service, . Section 4313 of such title is amended by adding at the end the following new subsection: For purposes of this section, the employer shall have the burden of identifying the appropriate reemployment positions. .