text: SECTION 1. SHORT TITLE.
  
      This Act may be cited as the ``Servicemembers Access to Justice Act 
  of 2012''.
  
  SEC. 2. WAIVER OF SOVEREIGN IMMUNITY UNDER THE ELEVENTH AMENDMENT WITH 
                RESPECT TO ENFORCEMENT OF EMPLOYMENT AND REEMPLOYMENT 
                RIGHTS OF MEMBERS OF THE UNIFORMED SERVICES.
  
      (a) In General.--Section 4323 of title 38, United States Code, is 
  amended--
              (1) in subsection (b), by striking paragraph (2) and 
          inserting the following new paragraph:
      ``(2) In the case of an action against a State (as an employer) by 
  a person, the action may be brought in the appropriate district court 
  of the United States or State court of competent jurisdiction.'';
              (2) by redesignating subsection (i) as subsection (j); and
              (3) by inserting after subsection (h) the following new 
          subsection:
      ``(i) Waiver of State Sovereign Immunity.--(1) A State's receipt or 
  use of Federal financial assistance for any program or activity of a 
  State shall constitute a waiver of sovereign immunity, under the 
  eleventh amendment to the Constitution or otherwise, to a suit brought 
  by--
              ``(A) a person who is or was an employee in that program or 
          activity for the rights or benefits authorized the person by 
          this chapter;
              ``(B) a person applying to be such an employee in that 
          program or activity for the rights or benefits authorized the 
          person by this chapter; or
              ``(C) a person seeking reemployment as an employee in that 
          program or activity for the rights or benefits authorized the 
          person by this chapter.
      ``(2) In this subsection, the term `program or activity' has the 
  meaning given that term in section 309 of the Age Discrimination Act of 
  1975 (42 U.S.C. 6107).''.
      (b) Application.--The amendments made by subsection (a) shall apply 
  to--
              (1) any failure to comply with a provision of or any 
          violation of chapter 43 of title 38, United States Code, that 
          occurs before, on, or after the date of the enactment of this 
          Act; and
              (2) to all actions or complaints filed under such chapter 
          43 that are commenced after the date of the enactment of this 
          Act.
  
  SEC. 3. UNENFORCEABILITY OF AGREEMENTS TO ARBITRATE DISPUTES REGARDING 
                EMPLOYMENT AND REEMPLOYMENT RIGHTS OF MEMBERS OF THE 
                UNIFORMED SERVICES.
  
      (a) In General.--Subchapter III of chapter 43 of title 38, United 
  States Code, is amended by adding at the end the following new section:
  ``Sec. 4328. Unenforceability of agreements to arbitrate disputes
      ``(a) Protection of Employee Rights.--Notwithstanding any other 
  provision of law, any clause of any agreement between an employer and 
  an employee that requires arbitration of a dispute arising under this 
  chapter shall not be enforceable.
      ``(b) Exceptions.--(1) Subsection (a) shall not apply with respect 
  to any dispute if, after such dispute arises, the parties involved 
  knowingly and voluntarily agree to submit such dispute to arbitration.
      ``(2) Subsection (a) shall not preclude the enforcement of any of 
  the rights or terms of a valid collective bargaining agreement.
      ``(c) Validity and Enforcement.--Any issue as to whether this 
  section applies to an arbitration clause shall be determined by Federal 
  law. Except as otherwise provided in chapter 1 of title 9, the validity 
  or enforceability of an agreement to arbitrate referred to in 
  subsection (a) or (b)(1), shall be determined by a court, rather than 
  the arbitrator, irrespective of whether the party resisting arbitration 
  challenges the agreement to arbitrate specifically or in conjunction 
  with other terms of the agreement.
      ``(d) Application.--This section shall apply with respect to all 
  contracts and agreements between an employer and an employee in force 
  before, on, or after the date of the enactment of this section.''.
      (b) Clerical Amendment.--The table of sections for such chapter is 
  amended by inserting after the item relating to section 4326 the 
  following new item:
  
  ``4328. Unenforceability of agreements to arbitrate disputes.''.
      (c) Application.--The provisions of section 4328 of title 38, 
  United States Code, as added by subsection (a), shall apply to--
              (1) any failure to comply with a provision of or any 
          violation of chapter 43 of title 38, United States Code, that 
          occurs before, on, or after the date of the enactment of this 
          Act; and
              (2) to all actions or complaints filed under such chapter 
          43 that are pending on or after the date of the enactment of 
          this Act.
  
  SEC. 4. ENHANCED REMEDIES FOR ENFORCEMENT OF EMPLOYMENT AND 
                REEMPLOYMENT RIGHTS OF MEMBERS OF THE UNIFORMED SERVICES.
  
      (a) State and Private Employers.--Section 4323(d) of title 38, 
  United States Code, is amended--
              (1) by redesignating paragraphs (2) and (3) as paragraphs 
          (4) and (5), respectively;
              (2) in paragraph (4) (as so redesignated)--
                      (A) by inserting after ``compensation'' each place 
                  it appears the following: ``or damages'';
                      (B) by striking ``subparagraph (B) or (C) of 
                  paragraph (1)'' the first place it appears and 
                  inserting ``paragraph (1) or (3)''; and
                      (C) by striking ``subparagraph (B) or (C) of 
                  paragraph (1)'' the second place it appears and 
                  inserting ``paragraph (1) or (3)''; and
              (3) by striking the subsection enumerator and heading and 
          paragraph (1) and inserting the following:
      ``(d) Remedies.--(1) A State or private employer who violates the 
  provisions of this chapter shall be liable to any person affected--
              ``(A) for damages in the amount of--
                      ``(i) any wages, salary, benefits, or other 
                  compensation denied or lost by such person by reason of 
                  the violation; or
                      ``(ii) in a case in which wages, salary, benefits, 
                  or other compensation have not been denied or lost to 
                  the person, any actual monetary losses sustained by the 
                  person as a result of the violation;
              ``(B) the interest on the amount described in subparagraph 
          (A) calculated at the prevailing interest rates over the period 
          of time for which the damages are due; and
              ``(C) an additional amount as liquidated damages equal to 
          the sum of the amount described in subparagraph (A) and the 
          interest described in subparagraph (B), or $10,000, whichever 
          is greater except that, if the employer proves to the 
          satisfaction of the court that the act or omission giving rise 
          to the person's action was in good faith and that the employer 
          had reasonable grounds for believing the act or omission was 
          not a violation of the provisions of this chapter, the court 
          may award, in its discretion, no liquidated damages or award 
          any amount of liquidated damages not to exceed 100 percent of 
          the compensation or damages awarded under subparagraph (A) and 
          the interest described in subparagraph (B).
      ``(2) In any action under this section, the court may require the 
  employer to comply with the provisions of this chapter.''.
      (b) Punitive Damages.--Section 4323(d) of such title is further 
  amended by inserting after paragraph (2) (as inserted by subsection 
  (a)(3) of this section) the following new paragraph:
      ``(3) In the case of a violation of this chapter by a State or 
  private employer with 25 or more employees, the court shall require the 
  employer to pay the person affected punitive damages if the court 
  determines that the employer's violation of this chapter was done with 
  malice or reckless indifference to the rights of the person under this 
  chapter.''.
      (c) Right to Jury Trial.--Section 4323(d) of such title is further 
  amended by adding at the end the following:
      ``(6) A person who commences an action under this section shall be 
  entitled to a trial by jury.''.
      (d) Federal Government Employers.--Paragraph (2) of section 4324(c) 
  of such title is amended to read as follows:
      ``(2) If the Board determines that a Federal executive agency or 
  the Office of Personnel Management has violated the provisions of this 
  chapter relating to the employment or reemployment of a person by the 
  agency, the Board shall enter an order requiring the agency or Office 
  to comply with such provisions and to compensate such person--
              ``(A) for damages in the amount of--
                      ``(i) any wages, salary, benefits, or other 
                  compensation denied or lost by such person by reason of 
                  the violation; or
                      ``(ii) in a case in which wages, salary, benefits, 
                  or other compensation has not been denied or lost to 
                  the person, any actual monetary losses sustained by the 
                  person as a result of the violation;
              ``(B) the interest on the amount described in subparagraph 
          (A) calculated at the prevailing interest rates over the period 
          of time for which the damages are due; and
              ``(C) an additional amount as liquidated damages equal to 
          the sum of the amount described in subparagraph (A) and the 
          interest described in subparagraph (B), or $10,000, whichever 
          is greater; except that, if the Federal executive agency or the 
          Office of Personnel Management proves to the satisfaction of 
          the Board that the act or omission giving rise to such person's 
          complaint was in good faith and that the agency or Office had 
          reasonable grounds for believing that the act or omission was 
          not a violation of the provisions of this chapter, the Board 
          may award, in the discretion of the Board, no liquidated 
          damages or award any amount of liquidated damages not to exceed 
          100 percent of the compensation or damages awarded under 
          subparagraph (A) and the interest described in subparagraph 
          (B).''.
      (e) Application.--The amendments made by this section shall apply 
  to--
              (1) any failure to comply with a provision of or any 
          violation of chapter 43 of title 38, United States Code, that 
          occurs before, on, or after the date of the enactment of this 
          Act; and
              (2) to all actions or complaints filed under such chapter 
          43 that are commenced after the date of the enactment of this 
          Act.
  
  SEC. 5. REQUIRED AWARD OF ATTORNEY FEES IN ACTIONS TO ENFORCE 
                EMPLOYMENT AND REEMPLOYMENT RIGHTS OF MEMBERS OF THE 
                UNIFORMED SERVICES.
  
      (a) Enforcement of Rights With Respect to a State or Private 
  Employer.--Section 4323(h)(2) of title 38, United States Code, is 
  amended by striking ``may'' and inserting ``shall''.
      (b) Enforcement of Rights With Respect to Federal Executive 
  Agencies.--Section 4324(c)(4) of such title is amended by striking 
  ``the Board may, in its discretion, award'' and inserting ``the Board 
  shall award''.
      (c) Application.--The amendments made by subsections (a) and (b) 
  shall apply to--
              (1) any failure to comply with a provision of or any 
          violation of chapter 43 of title 38, United States Code, that 
          occurs before, on, or after the date of the enactment of this 
          Act; and
              (2) to all actions or complaints filed under such chapter 
          43 that are pending on or after the date of the enactment of 
          this Act.
  
  SEC. 6. REQUIRING EQUITABLE RELIEF WHEN APPROPRIATE.
  
      (a) In General.--Section 4323(e) of title 38, United States Code, 
  is amended--
              (1) by striking ``The court shall use,'' and inserting 
          ``(1) The court shall use,''; and
              (2) by adding at the end the following new paragraph:
      ``(2) Notwithstanding rule 65 of the Federal Rules of Civil 
  Procedure or any other provision of law, for purposes of determining 
  whether to issue an injunction or restraining order pursuant to 
  paragraph (1)--
              ``(A) an employer's denial of reemployment or retention in 
          employment shall constitute irreparable harm to a person who is 
          denied reemployment or retention in employment if an injunction 
          to reinstate such person is not issued, and such person shall 
          be considered to have no adequate remedy at law;
              ``(B) if the court balances the hardships between the 
          parties, there shall be a rebuttable presumption that the 
          balance of harm to a person who is denied reemployment or 
          retention in employment if an injunction to reinstate such 
          person is not issued outweighs the harm to such person's 
          employer or former employer if an injunction is issued to 
          reinstate such person; and
              ``(C) if the court considers the public interest or public 
          policy, there shall be a rebuttable presumption that the 
          issuance of an injunction to reinstate a person who is denied 
          reemployment or retention in employment is in the public 
          interest and advances public policy.''.
      (b) Application.--The amendments made by subsection (a) shall apply 
  to--
              (1) any failure to comply with a provision of or any 
          violation of chapter 43 of title 38, United States Code, that 
          occurs before, on, or after the date of the enactment of this 
          Act; and
              (2) to all actions or complaints filed under such chapter 
          43 that are pending on or after the date of the enactment of 
          this Act.
  
  SEC. 7. REQUIREMENT THAT FEDERAL AGENCIES PROVIDE NOTICE TO CONTRACTORS 
                OF POTENTIAL OBLIGATIONS RELATING TO EMPLOYMENT AND 
                REEMPLOYMENT RIGHTS OF MEMBERS OF THE UNIFORMED SERVICES.
  
      (a) Civilian Agencies.--
              (1) In general.--Chapter 47 of title 41, United States 
          Code, is amended by adding at the end the following new 
          section:
  ``Sec. 4712. Notice to contractors of potential obligations relating to 
                employment and reemployment rights of members of the 
                uniformed services
      ``Each contract for the procurement of property or services that is 
  entered into by the head of an executive agency shall include a notice 
  to the contractor that the contractor may have obligations under 
  chapter 43 of title 38, United States Code.''.
              (2) Clerical amendment.--The table of sections at the 
          beginning of chapter 47 of such title is amended by inserting 
          after the item relating to section 4711 the following new item:
  
  ``4712. Notice to contractors of potential obligations relating to 
                              employment and reemployment rights of 
                              members of the uniformed services.''.
      (b) Armed Forces.--
              (1) In general.--Chapter 137 of title 10, United States 
          Code, is amended by adding at the end the following new 
          section:
  ``Sec. 2336. Notice to contractors of potential obligations relating to 
                employment and reemployment rights of members of the 
                uniformed services
      ``Each contract for the procurement of property or services that is 
  entered into by the head of an executive agency shall include a notice 
  to the contractor that the contractor may have obligations under 
  chapter 43 of title 38.''.
              (2) Clerical amendment.--The table of sections for such 
          chapter is amended by adding at the end the following new item:
  
  ``2336. Notice to contractors of potential obligations relating to 
                              employment and reemployment rights of 
                              members of the uniformed services.''.
  
  SEC. 8. CLARIFYING THAT PROVISIONS OF SECTION 4302 OF TITLE 38, UNITED 
                STATES CODE, APPLY TO BOTH SUBSTANTIVE AND PROCEDURAL 
                RIGHTS.
  
      Section 4302 of title 38, United States Code, is amended by 
  inserting ``substantive or procedural'' before ``right or benefit'' 
  each place it occurs.
  
  SEC. 9. COMPTROLLER GENERAL OF THE UNITED STATES STUDY ON EFFECTIVENESS 
                OF FEDERAL PROGRAMS OF EDUCATION AND OUTREACH ON EMPLOYER 
                OBLIGATIONS REGARDING EMPLOYMENT AND REEMPLOYMENT RIGHTS 
                OF MEMBERS OF THE UNIFORMED SERVICES.
  
      (a) Study Required.--The Comptroller General of the United States 
  shall conduct a study on the effectiveness of Federal programs of 
  education and outreach on employer obligations under chapter 43 of 
  title 38, United States Code.
      (b) Contents of Study.--In carrying out the study required by 
  subsection (a), the Comptroller General shall--
              (1) assess current practices and procedures of Federal 
          agencies for educating employers about their obligations under 
          chapter 43 of title 38, United States Code;
              (2) identify best practices for bringing the employment 
          practices of small businesses into compliance with such 
          chapter;
              (3) determine whether the Employer Support for the Guard 
          and Reserve, the Small Business Administration, or other 
          agencies could collaborate to develop a program to educate 
          employers regarding their obligations under such chapter; and
              (4) determine the effect on recruitment and retention in 
          the National Guard and Reserves of the failure of employers to 
          meet their reemployment obligations under such chapter.
      (c) Report to Congress.--Not later than December 31, 2012, the 
  Comptroller General shall submit to Congress a report on the study 
  conducted under subsection (a), including the following:
              (1) The findings of the Comptroller General with respect to 
          such study.
              (2) The recommendations of the Comptroller General for the 
          improvement of education and outreach for employers with 
          respect to their obligations under chapter 43 of title 38, 
          United States Code.
target: Servicemembers Access to Justice Act of 2012 - Waives a state's sovereign immunity with respect to the enforcement of uniformed services members' employment or reemployment rights or benefits under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA).
  
  Makes unenforceable agreements between an employer and employee requiring arbitration of disputes arising under USERRA. Provides exceptions. Requires the validity and enforceability of such an agreement to be determined by a court (as opposed to the arbitrator).
  
  Provides increased liquidated damages, and authorizes punitive damages, against state or private employer violations of USERRA. Provides a right to a jury trial in such cases.
  
  Requires (under current law, authorizes) the award of attorney fees in actions to enforce USERRA.
  
  Requires (under current law, authorizes) a court to use equitable relief, including injunctions and restraining orders when appropriate, for USERRA violations.
  
   Requires federal procurement contracts to include a notice that the contractor may have USERRA obligations.
  
  Requires a Comptroller General study on the effectiveness of federal education and outreach programs on employer obligations under USERRA.
feat_title: To amend title 38, United States Code, to improve the enforcement of employment and reemployment rights of members of the uniformed services, and for other purposes.