Bill to patch some problems in USERRA has been introduced
On January 15th, Sens. Robert Casey and Edward Kennedy introduced the Servicemembers Access to Justice Act of 2009 (S. 263) ("SAJA") to clarify and strengthen USERRA. Sen. Barack Obama co-sponsored a substantially identical measure last year. You can track the bill on the govtrack.us website.
Among amendments to USERRA that SAJA would make are the following: (1) a federal-funding hook to trump states’ 11th Amendment immunity; (2) clarification that USERRA prohibits wage discrimination; (3) prohibition of mandatory arbitration; (4) clarification that Section 4302 of the Act applies to both substantive and procedural rights; (5) revamping of the liquidated damages provision by removing the requirement that willfulness be shown and, instead, requiring that liquidated damages be awarded (with a mandatory minimum of $10,000) in all cases in which a violation is found, unless the employer can prove good faith; (6) provision for liquidated damages for federal employees (there is none currently); (7) establishment of a right to a jury trial in cases against private, state, and local government employers (regardless of the type of relief sought); (8) provision for awards of punitive damages in cases where an employer acted with malice or reckless indifference to the plaintiff’s rights; (9) mandatory awards of attorney’s fees to prevailing plaintiffs (currently discretionary); and (10) clarification that a merger or transfer of assets is not necessary to impose successor liability (this would override the 11th Circuit's holding to the contrary in Coffman v. Chugach Support Services, Inc., 411 F.3d 1231, 1237 (11th Cir. 2005)); and (11) strengthening of the Act's injunction provision by providing that denials of reemployment and discharges "shall constitute irreparable harm." (This summary was written by my co-author Kathryn Piscitelli.)