Military Personnel
Federal Agencies Have Taken Actions to Address Servicemembers' Employment Rights, but a Single Entity Needs to Maintain Visibility to Improve Focus on Overall Program Results Gao ID: GAO-08-254T November 8, 2007Since September 11, 2001, the Department of Defense (DOD) has mobilized more than 500,000 National Guard and Reserve members. As reservists return to civilian life, concerns exist about difficulties with their civilian employment. The Uniformed Services Employment and Reemployment Rights Act (USERRA) of 1994 protects the employment rights of individuals, largely National Guard and Reserve members, as they transition back to their civilian employment. GAO has issued a number of reports on agency efforts to carry out their USERRA responsibilities. DOD, the Department of Labor (DOL), the Department of Justice (DOJ), and the Office of Special Counsel (OSC) have key responsibilities under the act. GAO was asked to discuss the overall process that the agencies use to implement USERRA. Specifically, this testimony addresses (1) organizational accountability in the implementation of USERRA and (2) actions that the agencies have taken to improve their processes to implement USERRA. For this testimony, GAO drew from its most recent reports on USERRA.
USERRA defines individual agency roles and responsibilities; however, it does not designate any single individual or office as accountable for maintaining visibility over the entire complaint resolution process. From the time informal complaints are filed with DOD's Employer Support of the Guard and Reserve through final resolution of formal complaints at DOL, DOJ, or OSC, no one entity has visibility over the entire process. The four agencies have generally been responsive to GAO's recommendations to improve the implementation of USERRA--on outreach to employers, data sharing and trend information, reporting to Congress, and the internal review of DOL's investigators' determinations of USERRA claims.
GAO-08-254T, Military Personnel: Federal Agencies Have Taken Actions to Address Servicemembers' Employment Rights, but a Single Entity Needs to Maintain Visibility to Improve Focus on Overall Program Results
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Maintain Visibility to Improve Focus on Overall Program Results' which
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Testimony:
Before the Committee on Health, Education, Labor and Pensions, U.S.
Senate:
United States Government Accountability Office:
GAO:
For Release on Delivery Expected at 10:00 a.m. EST:
November 8, 2007:
Military Personnel:
Federal Agencies Have Taken Actions to Address Servicemembers'
Employment Rights, but a Single Entity Needs to Maintain Visibility to
Improve Focus on Overall Program Results:
Statement of Brenda S. Farrell, Director Defense Capabilities and
Management:
and:
Statement of George H. Stalcup, Director Strategic Issues:
GAO-08-254T:
GAO Highlights:
Highlights of GAO-08-254T, a testimony to Committee on Health,
Education, Labor and Pensions, U.S. Senate.
Why GAO Did This Study:
Since September 11, 2001, the Department of Defense (DOD) has mobilized
more than 500,000 National Guard and Reserve members. As reservists
return to civilian life, concerns exist about difficulties with their
civilian employment. The Uniformed Services Employment and Reemployment
Rights Act (USERRA) of 1994 protects the employment rights of
individuals, largely National Guard and Reserve members, as they
transition back to their civilian employment. GAO has issued a number
of reports on agency efforts to carry out their USERRA
responsibilities. DOD, the Department of Labor (DOL), the Department of
Justice (DOJ), and the Office of Special Counsel (OSC) have key
responsibilities under the act. GAO was asked to discuss the overall
process that the agencies use to implement USERRA. Specifically, this
testimony addresses (1) organizational accountability in the
implementation of USERRA and
(2) actions that the agencies have taken to improve their processes to
implement USERRA. For this testimony, GAO drew from its most recent
reports on USERRA.
What GAO Found:
Depicted below are servicemembers‘ options for obtaining federal
assistance with their USERRA complaints.
Figure: Servicemembers options for obtaining federal assistance with
their USERRA complaints.
This figure is a chart detailing servicemember's options for obtaining
federal assistance with their USERRA complaints. If a servicemember
cannot resolve an alleged USERRA violation directly with his or her
employer, he or she can seek assistance from the Department of Defense,
Department of Labor, or the Office of Special Counsel (Demonstration
Project).
If he or she goes to the Department of Defense, the DOD uses an
ombudsman trained by the Employer Support of the Guard and Reserve
organization to help resolve the problem through education and informal
mediation.
If he or she goes to the Office of Special Counsel (Demonstration
Project), from February 8, 2005, to November 16, 2007, OSC will
investigate USERRA complains from certain servicemembers who work for
federal executive agencies. Complaints can come directly from
servicemembers or be referred to OSC from DOL.
If he or she goes to the Department of Labor, he or she can file a
complaint with the DOL so that a Veterans' Employment and Training
Services (VETS) investigator can try to resolve the situation through
education and formal meditation. If not resolved, the servicemember can
request a referral. Before complaints are referred, they are reviewed
by a VETS regional office and DOL regional Office of the Solicitor.
When a servicemember requests a referral, DOJ reviews the findings of
DOL's VETS investigator and regional solicitor and then performs its
own evaluation of the merits of the complaint, and obtains additional
information as necessary. If DOJ determines the complaint has merit, it
represents the servicemember against his or her private employer or
state or local government employer in federal district court. If DOJ
finds that the complaint has no merit, it notifies the claimant of his
or her right to pursue a private course of action.
When a servicemember requests a referral, OSC reviews the findings of
DOL's VETS investigator and regional solicitor, then performs its own
evaluation of the merits of the complaint, and obtains additional
information as necessary. If OSC determines the complaint has merit, it
represents the servicemember against his or her federal executive
agency employer before the Merit Systems Protection Board. If OSC finds
that the complaint has no merit, it notifies the claimant of his or her
right to pursue a private cause of action.
[See PDF for image]
Source: GAO, Art Explosion.
[End of figure]
USERRA defines individual agency roles and responsibilities; however,
it does not designate any single individual or office as accountable
for maintaining visibility over the entire complaint resolution
process. From the time informal complaints are filed with DOD‘s
Employer Support of the Guard and Reserve through final resolution of
formal complaints at DOL, DOJ, or OSC, no one entity has visibility
over the entire process.
The four agencies have generally been responsive to GAO‘s
recommendations to improve the implementation of USERRA”on outreach to
employers, data sharing and trend information, reporting to Congress,
and the internal review of DOL‘s investigators‘ determinations of
USERRA claims.
What GAO Recommends:
In October 2005 GAO suggested that Congress make a single entity
accountable for maintaining visibility over the entire USERRA complaint
resolution process. Designating one single entity would, in GAO‘s view,
enhance efforts to improve overall program results.
To view the full product, including the scope and methodology, click on
[hyperlink, http://www.GAO-08-254T]. For more information, contact
Brenda Farrell at (202) 512-3604 or farrellb@gao.gov or George Stalcup
at (202) 512-9490 or stalcupg@gao.gov.
[End of section]
Mr. Chairman, Senator Enzi, and Members of the Committee:
We are pleased to be here today to discuss four federal agencies'
activities regarding the Uniformed Services Employment and Reemployment
Rights Act (USERRA) of 1994.[Footnote 1] USERRA protects the employment
and reemployment rights of millions of federal and nonfederal employees
who leave their civilian employment to perform military or other
uniformed service. USERRA also prohibits discrimination in employment
against individuals because of their uniformed service, obligation to
perform service, or membership or application for membership in the
uniformed services. USERRA further prohibits employer retaliation
against any individual who engages in protected activity under USERRA,
regardless of whether the individual has performed service in the
uniformed services.
Mr. Chairman, in 2004 you recognized the issues associated with USERRA,
particularly in light of the significant number of National Guard and
Reserve members serving in Iraq and Afghanistan who would be
demobilized, returned to their civilian jobs, and possibly called back
to duty.[Footnote 2] Our testimony today is particularly relevant
because more than 500,000 reservists have been called to duty since
September 11, 2001.
Our testimony is based on work that we have conducted for you and in
response to congressional mandates. Since 2002, we have issued several
reports on federal agency efforts to carry out USERRA responsibilities.
The four agencies primarily responsible for assisting servicemembers
under USERRA are the Department of Defense (DOD), the Department of
Labor (DOL), the Department of Justice (DOJ), and the Office of Special
Counsel (OSC).[Footnote 3] In our reports, we have made numerous
recommendations to these agencies concerning the implementation of
USERRA.[Footnote 4]
Our testimony is based on our three most recent reports on USERRA and
examining whether DOD, DOL, DOJ, and OSC have effectively carried out
their USERRA responsibilities.[Footnote 5] Our testimony addresses (1)
organizational accountability in the implementation of USERRA and (2)
actions that the agencies have taken to improve their internal
processes to implement USERRA.
As noted, this testimony is based on our prior work. For that work, we
reviewed applicable laws, guidance, regulations, and operations
manuals. To assess how efficiently and effectively DOD, DOL, DOJ, and
OSC address USERRA complaints, we collected, reviewed, and analyzed
data from a wide variety of sources (including the four federal
agencies) and interviewed responsible officials.[Footnote 6] We also
reviewed DOD survey data and conducted original analysis on these data.
To identify progress made by DOD in capturing employer information, we
obtained and analyzed reporting compliance data from DOD and its
reserve components. Further, we analyzed the number of disability
complaints filed with DOD and DOL between fiscal years 2004 and 2006.
We found DOD's civilian employment information and Employer Support of
the Guard and Reserve (ESGR) databases to be of undeterminable
reliability.
In our October 2005 report, we compared data obtained from DOJ and OSC
with those captured by DOL and, where available, we compared the
information in DOL's USERRA Information Management System to
information from hard copy complaint files for accuracy.[Footnote 7]
For our July 2007 report, we assessed the reliability of selected data
elements on federal employee complaints from DOL's USERRA database by
tracing a statistically random sample of data to case files from
February 8, 2005, through July 21, 2006.[Footnote 8] We determined that
these data were sufficiently reliable, with the exception of certain
data elements from DOL's USERRA database, which we note in this
testimony. With respect to actions agencies have taken in response to
our recommendations, we discussed the agencies' progress with
knowledgeable officials from DOL, ESGR, and OSC. Our work on the above
reports, as well as the work we conducted for this statement, was
performed in accordance with generally accepted government auditing
standards.
Summary:
Mr. Chairman, our main message today is that the four federal agencies
have taken steps to better support and protect servicemembers' rights
under USERRA in response to problems identified and recommendations
made in our prior reports. However, no single agency is accountable for
maintaining visibility over the entire complaint resolution process and
therefore, it is difficult for the responsible agencies to effectively
carry out their USERRA responsibilities. Designating one single entity
would, in GAO's view, enhance efforts to improve overall program
results.
Background:
The overall process used to implement USERRA is as follows.
* Outreach and resolution of informal complaints. DOD and DOL share
responsibility for outreach--the education of servicemembers and
employers about their respective responsibilities under USERRA. Much of
DOD's outreach is accomplished through ESGR, which performs most of its
work through over 4,000 volunteers. DOL conducts outreach through its
Veterans' Employment and Training Service (VETS) investigators, who are
located nationwide. These investigators conduct briefings to educate
employers and servicemembers about USERRA requirements and
responsibilities and handle service-related employment and reemployment
questions that are directed to their offices.
Servicemembers who have USERRA-related issues with their employers can
file informal complaints with DOD's ESGR. In our February 2007 report,
we noted that nearly 10,000 informal complaints had been filed with
ESGR in fiscal years 2004 and 2005. A subgroup of ESGR's specially
trained volunteers serve as impartial ombudsmen who informally mediate
USERRA issues that arise between servicemembers and their employers.
* Formal complaints and prosecution. When ESGR ombudsmen cannot resolve
complaints informally, they notify servicemembers about their options.
Servicemembers can file a formal complaint with DOL or file complaints
directly in court (if it involves nonfederal employers) or the Merit
Systems Protection Board (if it involves federal executive branch
employers). Under a federal sector demonstration project established by
the Veterans Benefits Improvement Act of 2004,[Footnote 9] DOL
investigates complaints against federal executive branch agencies for
individuals whose social security numbers end in even numbers, and OSC
is authorized to directly receive and investigate complaints and seek
corrective action for individuals whose social security numbers end in
odd numbers.
When a servicemember files a formal complaint with DOL, one of VETS's
115 investigators examines and attempts to resolve it.[Footnote 10] If
VETS's investigators are unable to resolve servicemember complaints,
DOL is to inform servicemembers that they may request to have their
complaints referred to DOJ (for complaints against private sector
employers or state and local governments) or to OSC (for complaints
against federal executive branch agencies).[Footnote 11] Before
complaints are sent to DOJ or OSC, they are reviewed by a VETS regional
office for accuracy and sufficiency and by a DOL regional Office of the
Solicitor, which assesses the legal basis for complaints and makes an
independent recommendation.
If DOJ or OSC determines that the complaint has merit, it will attempt
to resolve the complaint without litigation and, if unsuccessful,
represent the complainant in court (for those referred to DOJ) or
before the Merit Systems Protection Board (for those referred to OSC).
Figure 1 shows servicemembers' options for obtaining federal assistance
with their USERRA complaints.
Figure 1: Process to Resolve a USERRA Complaint Using Federal
Assistance:
This figure is a chart detailing servicemember's options for obtaining
federal assistance with their USERRA complaints. If a servicemember
cannot resolve an alleged USERRA violation directly with his or her
employer, he or she can seek assistance from the Department of Defense,
Department of Labor, or the Office of Special Counsel (Demonstration
Project}.
If he or she goes to the Department of Defense, the DOD uses an
ombudsman trained by the Employer Support of the Guard and Reserve
organization to help resolve the problem through education and informal
mediation.
If he or she goes to the Office of Special Counsel (Demonstration
Project), from February 8, 2005, to November 16, 2007, OSC will
investigate USERRA complains from certain servicemembers who work for
federal executive agencies. Complaints can come directly from
servicemembers or be referred to OSC from DOL.
If he or she goes to the Department of Labor, he or she can file a
complaint with the DOL so that a Veterans' Employment and Training
Services (VETS) investigator can try to resolve the situation through
education and formal meditation. If not resolved, the servicemember can
request a referral. Before complaints are referred, they are reviewed
by a VETS regional office and DOL regional Office of the Solicitor.
When a servicemember requests a referral, DOJ reviews the findings of
DOL's VETS investigator and regional solicitor and then performs its
own evaluation of the merits of the complaint, and obtains additional
information as necessary. If DOJ determines the complaint has merit, it
represents the servicemember against his or her private employer or
state or local government employer in federal district court. If DOJ
finds that the complaint has no merit, it notifies the claimant of his
or her right to pursue a private course of action.
When a servicemember requests a referral, OSC reviews the findings of
DOL's VETS investigator and regional solicitor, then performs its own
evaluation of the merits of the complaint, and obtains additional
information as necessary. If OSC determines the complaint has merit, it
represents the servicemember against his or her federal executive
agency employer before the Merit Systems Protection Board. If OSC finds
that the complaint has no merit, it notifies the claimant of his or her
right to pursue a private cause of action.
[See PDF for image]
Note: The demonstration project originally scheduled to end on
September 30, 2007, was extended through November 16, 2007. Pub. L. No.
110-92, §130 (2007).
[End of figure]
* Agency databases and reporting requirement. Each of the four federal
agencies responsible for assisting servicemembers under USERRA
maintains an automated database with complaint information. Both DOD
and DOL have electronic complaint files that are stored in automated
systems with query capabilities.
The Secretary of Labor in consultation with the U.S. Attorney General
and the Special Counsel prepares and transmits a USERRA annual report
to Congress on, among other matters, the number of USERRA claims
reviewed by DOL, and during the current demonstration project by OSC,
along with the number of claims referred to DOJ or OSC. The annual
report is also to address the nature and status of each claim, state
whether there are any apparent patterns of violation of the USERRA
provisions, and include any recommendations for administrative or
legislative action that the Secretary of Labor, the U.S. Attorney
General, or the Special Counsel consider necessary to effectively
implement USERRA.
No Single Agency Is Accountable for Maintaining Visibility over the
Entire Complaint Resolution Process:
Although USERRA defines individual agency roles and responsibilities,
it does not make any single individual or office accountable for
maintaining visibility over the entire complaint resolution process. In
our October 2005 report, we noted that the ability of federal agencies
to monitor the efficiency and effectiveness of the complaint process
was hampered by a lack of visibility resulting, in part, from the
segmentation of responsibility for addressing complaints among multiple
agencies. Moreover, from the time informal complaints are filed with
DOD's ESGR through final resolution of formal complaints at DOL, DOJ,
or OSC, no one entity has visibility over the entire process. We found
that the agency officials who are responsible for the complaints at
various stages of the process generally have limited or no visibility
over the other parts of the process. As a result, federal agencies have
developed agency-specific output rather than cross-cutting goals
directed toward resolving servicemembers' complaints. For example,
agency goals address the complaint processing times of each stage of
the process, rather than the entire time that elapses while
servicemembers wait to have their complaints addressed. Meanwhile, the
servicemember knows how much time is passing since the initial
complaint was filed. In October 2005, we reported that more than 430 of
the 10,061 formal complaints filed with DOL between October 1, 1996,
and June 30, 2005, were closed and reopened and 52 complaints had been
closed and reopened two or more times. Our analysis of those 52
complaints showed that the processing times averaged about 3 to 4
months but the total elapsed times that servicemembers waited to have
their complaints fully addressed averaged about 20 to 21 months from
the time they first filed their initial formal complaints with DOL
until the time the complaints were fully addressed by DOL, DOJ, or
OSC.[Footnote 12]
We have previously suggested and continue to believe that Congress
should consider designating a single individual or office to maintain
visibility over the entire complaint resolution process from DOD
through DOL, DOJ, and OSC. We believe this would encourage agencies to
focus on overall results rather than agency-specific outputs and
thereby improve federal responsiveness to servicemember complaints that
are referred from one agency to another. In response to this matter, in
our 2005 report, both DOL and OSC were supportive, and both agencies
noted that they had the expertise to oversee the USERRA complaint
resolution process. However, DOL stated that with the mandated
demonstration project ongoing, it would be premature to make any
suggestions or recommendations for congressional or legislative action
until the project has been completed. DOD and DOJ did not provide
comments on this matter.
Agencies Have Taken Action to Improve Information on Employers and
Assistance to Servicemembers Under USERRA:
DOD, DOL, DOJ, and OSC have generally been responsive to the
recommendations we have made in our prior reports. Following is the
status of some of the improvements made thus far:
Outreach:
Integral to getting servicemembers the help they need is educating them
and their employers on their respective responsibilities under USERRA.
Since 2002, we have reported on DOD's need to obtain complete and
accurate information on the civilian employers to better target its
outreach efforts. Accurate, complete, and current civilian employer
information is important to DOD to improve its ability to target
outreach to employers, to make informed decisions concerning which
reservists should be called for active duty to minimize the impact that
mobilizations might have on occupations such as law enforcement, and to
determine how businesses may be affected by reserve activation. As we
recommended in our 2002 report, DOD implemented regulations that
required the reporting and collection of employer information for
reserve personnel. Additionally, DOD established compliance goals for
these servicemembers. We noted in our February 2007 report that the
percentage of servicemembers reporting employer information to DOD had
increased, but most reserve components had still not reached their
compliance goals. In addition, we found that employment data were not
necessarily current because some reservists were not aware of
requirements to update their employer information and the services had
not established a formal mechanism to remind reservists to update this
personnel information as necessary to reflect changes in their current
employment.
To improve the reporting of National Guard and Reserve employment
information, we recommended that the Secretary of Defense direct the
Office of the Assistant Secretary of Defense for Reserve Affairs to
establish specific time frames for reservists to report their
employment data, set specific time frames for reserve components to
achieve the established compliance reporting goals, and direct the
service components to take action to ensure reporting compliance. In
response to this recommendation, DOD indicated at the time of our
report that its current policy on employer reporting established
compliance goals. We noted in our report that DOD needed to establish a
new deadline by which reservists must report their employer information
to DOD and set specific time frames for reserve components to achieve
the established compliance reporting goal. In addition, to encourage
reservists to keep their employer data current, we recommended that DOD
instruct all military departments to establish a formal review
mechanism that would require all reservists to review and update at
least annually their reported employment-related information. At the
time of our February 2007 report, DOD was in the process of revising
its policy on civilian employer reporting to require an annual review
of reported employer information.
DOD provides USERRA outreach and education to servicemembers using
several mechanisms, including a toll-free information line and
individual and group briefings. DOD monitors the extent to which it
reaches this population and the occurrence of USERRA-related problems
by including questions on these areas in its Status of the Forces
survey, which is periodically conducted to identify issues that need to
be addressed or monitored. We noted in our 2005 report that survey
questions offer the potential to provide insight into compliance and
employer support issues. However, questions on the surveys vary from
year to year and have not always included those pertaining to USERRA
compliance and employer support. To gauge the effectiveness of federal
actions to support USERRA by identifying trends in compliance and
employer support, we recommended that the Secretary of Defense direct
the Under Secretary of Defense for Personnel and Readiness to include
questions in DOD's periodic Status of Forces Surveys to determine:
* the extent to which servicemembers experience USERRA-related
problems;
* if they experience these problems, from whom they seek assistance;
* if they do not seek assistance, why not; and:
* the extent to which servicemembers' employers provide support beyond
that required by the law.
In response to this recommendation, DOD incorporated these additional
USERRA-related questions in its June 2006 Status of the Forces survey.
Data Sharing and Trend Identification:
Because the resolution of servicemember complaints could involve
multiple federal agencies, it is important that the agencies be able to
effectively share and transfer information to efficiently process
servicemember complaints. In October 2005, we found that the automated
systems that DOD, DOL, DOJ, and OSC used to capture data about USERRA
complaints were not compatible with each other.[Footnote 13] As a
result, information collection efforts were sometimes duplicated, which
slowed complaint processing times. To increase federal agency
responsiveness to USERRA complaints, we recommended that DOD, DOL, DOJ,
and OSC develop a system to allow the electronic transfer of complaint
information. At the time of our report, DOL and OSC concurred with this
recommendation, DOJ did not provide comments, and DOD deferred to the
other agencies. We noted in our February 2007 report that DOL had
implemented an enhancement to its USERRA database in October 2006 to
enable the four USERRA coordinating agencies to electronically transfer
case information between agencies. The database enhancement allowed
DOD, DOL, DOJ, and OSC to access and update the status of cases using
the Internet and produce a report containing aggregate USERRA complaint
data on the cases over which they have jurisdiction. We further noted
in this report that, despite these enhancements to the USERRA database
to allow the electronic transfer of complaint information between
agencies, DOD only had visibility over those cases that originated with
informal complaints to DOD. Even though DOD shares responsibility with
DOL for USERRA complaints, DOD did not have access to all USERRA
complaint data, and we recommended that DOL provide these data to DOD's
ESGR.[Footnote 14] In response to this recommendation, in October 2007,
DOL provided DOD with the ability to view and download aggregate
information on all USERRA cases in its database.
In addition, in October 2005, we reported that when a complaint is
referred from DOL to OSC or DOJ, the agencies are unable to efficiently
process complaints because they are forced to create, maintain, copy,
and mail paper files to other DOL offices and to OSC and DOJ. To reduce
administrative burden and improve oversight of USERRA complaints
processing, we recommended that DOL develop a plan to reduce reliance
on paper files and fully adopt the agency's automated complaint file
system. DOL concurred with this recommendation and, as a result, is
developing an electronic case record system, scheduled for completion
in October 2008, that will allow all agencies assigned to the case an
opportunity to review documents and add investigative notes or records.
To effectively identify trends in issues facing servicemembers, it is
important in a segmented complaint resolution process that the
complaint data generated by each of the federal agencies be
sufficiently comparable. In our February 2007 report, we noted that the
complaint categories used by each of the four agencies could not be
uniformly categorized to reveal trends in USERRA complaints. In
particular, we noted that the complaint data collected by DOD and DOL,
the two agencies that see the highest volume of cases, were not
categorized in a way that is conducive to meaningful comparison.
Specifically, we found that the two agencies use different categories
to identify reservists' USERRA complaints for issues such as being
refused job reinstatement, denied an appropriate pay rate, or being
denied vacation time. To allow for the analysis of trends in reporting
USERRA complaints, we recommended that DOD and DOL adopt uniform
complaint categories in the future that would allow aggregate trend
analysis to be performed across the databases. At the time of our
report, both DOD and DOL agreed with this recommendation. Since that
time, DOD and DOL have collaborated to identify common complaint
categories that will allow both agencies to match similar USERRA
complaints. According to officials from both DOD and DOL, these
complaint categories are expected to be pilot tested in fiscal year
2008.
As reservists continue to be exposed to serious injury in operations in
Iraq and Afghanistan, the ability to identify disability reemployment
complaints becomes more critical. However, we noted in our February
2007 report that the four federal agencies responsible for assisting
servicemembers with USERRA complaints could not systematically record
and track disability-related complaints. Additionally, we found that
these agencies do not distinguish disability-related complaints from
other types of complaints for tracking and reporting purposes. For
example, the servicemember must indicate that the case involves a
disability for it to be classified as such, and these complaints may
not be distinguishable from any other types of complaints because a
single USERRA complaint may involve a number of issues that complicates
the classification of the case by the agency. Further, disability-
related complaints are not identified using consistent and compatible
complaint categories. DOD classifies USERRA disability-related
complaints within three categories including medical benefits, job
placement, and time limits for reemployment, while DOL uses one
category, reasonable accommodation and retraining for disabled, to
classify USERRA disability-related complaints. To provide agencies with
better information about disability-related employment complaints, we
recommended that DOL develop a system for recording and tracking these
complaints and share it with the other agencies that implement USERRA.
DOL concurred with this recommendation at the time of this report.
According to DOL officials, DOL's USERRA database identifies disability
claims, and the agency has recently provided DOD, OSC, and DOJ with
access to this system.
Information Reported to Congress:
As previously mentioned, the Secretary of Labor is required to provide
an annual report to Congress that includes information on the number of
USERRA complaints reviewed by DOL, along with the number of complaints
referred to DOJ or OSC. We noted in our February 2007 report that DOL's
report to Congress does not include information on informal complaints
filed with ESGR. Therefore the complaint data that DOL reported to
Congress for fiscal years 2004 and 2005 did not include 80 percent, or
9,975 of the 12,421 total informal and formal USERRA complaints filed
by reservists during that period. Without data from ESGR, Congress has
limited visibility over the full range of USERRA issues that reservists
face following deployment. Further, without these data, Congress may
lack the information for its oversight of reserve employment matters.
To gain a full perspective of the number and nature of USERRA
complaints filed by reservists in gaining reemployment upon returning
from active duty, we suggested that Congress consider amending the
reporting requirement[Footnote 15] to require DOL to include data from
DOD's ESGR in its annual report to Congress. In response to this matter
for congressional consideration, Members of Congress are considering
changes to the legislation.[Footnote 16]
In addition to DOL's report to Congress not reflecting informal USERRA
complaints, we identified data limitations in our July 2007 report that
affected the quality of information reported to Congress that could
adversely affect Congress's ability to assess how well federal sector
USERRA complaints are processed and whether changes are
needed.[Footnote 17] DOL provides information in its annual report to
Congress on the number and percentage of complaints opened by type of
employer, issues raised--such as discrimination or refusal to
reinstate--outcome, and total time to resolve. We found that the number
of federal sector complaints shown in DOL's USERRA database from
February 8, 2005, through September 30, 2006, exceeded the number of
unique claims it processed during the period of our review. Duplicate,
reopened, and transferred complaints accounted for most of this
difference. Also, in our review of a random sample of case files, we
found:
* the dates recorded for case closure in DOL's USERRA database did not
reflect the dates on the closure letters in 22 of 52 sampled complaints
and:
* the closed code, which DOL uses to describe the outcomes of USERRA
complaints (e.g., granted, settled, no merit, or withdrawn), was not
sufficiently reliable for reporting specific outcomes of complaints.
To ensure that accurate information on USERRA complaints' processing is
available to DOL and to Congress, we recommended in our July 2007
report that the Secretary of Labor direct the Assistant Secretary of
Veterans' Employment and Training to establish a plan of intended
actions with target dates for implementing internal controls to ensure
that DOL's USERRA database accurately reflects the number of unique
USERRA complaints filed annually against federal executive branch
agencies, the dates those complaints were closed, and the outcomes of
those complaints. In response to our recommendation, DOL issued a memo
from the Assistant Secretary of Veterans' Employment and Training in
July 2007 instructing investigators to ensure that the closed date
entered into DOL's USERRA database match the date on the closure letter
to the servicemember, and DOL conducted mandatory training on this memo
beginning in August 2007. Further, DOL officials told us that DOL's
fiscal year 2007 annual report will count reopened complaints as a
single complaint if brought by the same individual, against the same
employer, and on the same issue.
Notification of Rights to Referral and Internal Reviews:
We reported in July 2007 that in cases where servicemembers sought
assistance from DOL and the agency could not resolve the complaints,
DOL did not consistently notify servicemembers in writing of their
right to have their unresolved complaints against federal executive
branch agencies referred to OSC or to bring their claims directly to
the Merit Systems Protection Board.[Footnote 18] Specifically, our
review of a random sample of complaint files showed that DOL failed to
notify servicemembers in writing in half of the unresolved complaints
and notified others of only some of their options. In addition, we
found that DOL's USERRA Operations Manual failed to provide clear
guidance to its investigators on when to notify servicemembers of their
rights and the content of the notifications. In July 2007, we also
reported that DOL has no internal process to routinely review
investigators' determinations before claimants are notified of them and
noted that this lack of review could have caused DOL's inconsistent
practice of notifying servicemembers for their rights to referral. We
recommended that the Secretary of Labor direct the Assistant Secretary
for Veterans' Employment and Training to (1) require VETS's
investigators to undergo mandatory training on the procedures to be
followed concerning notification of rights to referral, (2) incorporate
into the formal update to DOL's USERRA Operations Manual guidance
concerning the notification rights to referral, and (3) develop and
implement an internal review mechanism for all unresolved complaints
before servicemembers are notified of determinations and complaints are
closed.
Since that time, DOL has taken the following actions:
* issued a memo in July 2007 from the Assistant Secretary for Veterans'
Employment and Training to regional administrators, senior
investigators, and directors concerning case closing procedure changes,
including standard language to use to ensure that servicemembers
(federal and nonfederal) are apprised of their rights;
* began conducting mandatory training on the memo in August 2007;
* incorporated the policy changes into the revised Manual, which
according to DOL officials is expected to be released in January 2008;
and:
* according to DOL officials, beginning in January 2008, all claims are
to be reviewed before the closure letter is sent to the claimant.
These are positive steps. It is important for DOL to follow through
with its plans to ensure that clear and uniform guidance is available
to all involved in processing USERRA complaints.
Mr. Chairman, Senator Enzi, and Members of the Committee, this
concludes our remarks. We will be pleased to take questions at this
time.
For further information regarding this statement, please contact Brenda
Farrell at 202-512-3604 or farrellb@gao.gov or George Stalcup at 202-
512-9490 or stalcupg@gao.gov. Contact points for our Offices of
Congressional Relations and Public Affairs may be found on the last
page of this testimony. Individuals making contributions to this
testimony include Laura Durland, Assistant Director; Belva Martin,
Assistant Director; James Ashley; Karin Fangman; K. Nicole Harms; Kenya
Jones; Mae Jones; Ronald La Due Lake; Joseph Rutecki; Tamara F.
Stenzel; and Kiki Theodoropoulos.
[End of section]
Footnotes:
[1] Pub. L. No. 103-353 (1994), as amended, codified at 38 U.S.C. §§
4301-4334.
[2] The term reservists refers to the collective forces of the Army
National Guard, Air National Guard, Army Reserve, Air Force Reserve,
Navy Reserve, Marine Corps Reserve, and the Coast Guard Reserve.
[3] The law also gives outreach responsibilities to the Secretary of
Veterans Affairs, but we did not review actions of the Department of
Veterans Affairs in supporting USERRA because its role is more limited.
[4] GAO, Military Personnel: Improved Quality Controls Needed over
Servicemembers' Employment Rights Claims at DOL, GAO-07-907
(Washington, D.C.: July 20, 2007); GAO, Military Personnel: Additional
Actions Needed to Improve Oversight of Reserve Employment Issues, GAO-
07-259 (Washington, D.C.: Feb. 8, 2007); GAO, Military Personnel:
Federal Management of Servicemember Employment Rights Can Be Further
Improved, GAO-06-60 (Washington, D.C.: Oct. 19, 2005); GAO, U.S. Office
of Special Counsel's Role in Enforcing Law to Protect Reemployment
Rights of Veterans and Reservists in Federal Employment, GAO-05-74R
(Washington, D.C.: Oct. 6, 2004); GAO, Reserve Force: DOD Actions
Needed to Better Manage Relations between Reservists and Their
Employers, GAO-02-608 (Washington, D.C.: June 13, 2002).
[5] We recently testified on issues related to our July 2007 report.
GAO, Military Personnel: Considerations Related to Extending
Demonstration Project on Servicemembers' Employment Rights Claims, GAO-
08-229T (Washington, D.C.: Oct. 31, 2007).
[6] Federal agencies use a variety of terms to describe servicemember
allegation of USERRA violations, including "complaints," "claims,"
"cases," "matters," and "referrals." For clarity and consistency
throughout this testimony, we use the term complaint to describe these
servicemember allegations. We refer to complaints to DOD as "informal
complaints" and complaints to DOL, DOJ, and OSC as "formal complaints."
[7] DOL's USERRA Information Management System is a Web-based case
management and reporting tool implemented by DOL in October 1996 that
allows for automated collection and investigator input of information
regarding USERRA complaints and generation of reports for analysis of
USERRA operations and outcomes. For purposes of this testimony, we
refer to DOL's USERRA Information Management System as DOL's USERRA
database.
[8] For our July 2007 report, we also assessed the reliability of
selected data elements on federal employee complaints from OSC's case
tracking system for the same period. The data element that OSC uses to
describe the outcomes of complaints was not sufficiently reliable for
reporting specific outcomes.
[9] The demonstration project began on February 8, 2005 and was
originally scheduled to end on September 30, 2007. Pub. L. No. 108-454,
§204 (2004), 38 U.S.C. § 4301 note. It was extended through November
16, 2007. Pub. L. No. 110-92, §130 (2007).
[10] Another 74 investigators include regional administrators and
management authorized to investigate USERRA complaints but not assigned
to any.
[11] DOL is also to inform servicemembers that they may file their
complaint directly in court (if it involves nonfederal employers) or
with the Merit Systems Protection Board (if it involves federal
executive branch employers).
[12] Because dates in DOL's USERRA database did not always match the
dates in the other agencies' systems and of the concerns raised in our
July 2007 report about the investigation closed dates entered for
federal sector complaints, discussed later in this statement, the
processing and total elapsed times may not be accurate and the figures
presented here are not precise reflections of processing or total
elapsed times. For our 2005 report, we reviewed hard copy complaint
files at the regional offices, tracked cases if they were referred to
DOJ or OSC, and spoke with relevant investigators about these cases. We
determined these data were sufficiently reliable for illustrating the
differences between the agencies' focuses on outputs and the
servicemembers' concern with the results.
[13] GAO-06-60.
[14] GAO-07-259.
[15] 38 U.S.C. §4332.
[16] H.R. 1632 was proposed on March 21, 2007, and was referred to the
Committee on Veterans' Affairs.
[17] GAO-07-907.
[18] GAO-07-907.
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