U.S. Office of Special Counsel's Role in Enforcing Law to Protect Reemployment Rights of Veterans and Reservists in Federal Employment
Gao ID: GAO-05-74R October 6, 2004The U.S. Office of Special Counsel (OSC) enforces the rights of federal employees and applicants for federal employment under the Uniformed Services Employment and Reemployment Rights Act (USERRA) of 1994. USERRA provides for the employment and reemployment rights of federal and nonfederal employees who leave their employment to perform military service. USERRA also prohibits discrimination against persons because of their military service. In light of the significant number of National Guard members and reservists serving in the war in Iraq and in other conflicts who will be demobilized and returning to the federal workforce in the coming months, the Ranking Minority Member, Senate Committee on Health, Education, Labor, and Pensions, asked us to review issues surrounding enforcement of the act in the federal sector, particularly by OSC. Under USERRA, a federal employee or applicant who believes that his or her USERRA rights have been violated may file a claim with the Department of Labor's (DOL) Veterans' Employment and Training Service (VETS), which investigates and attempts to resolve the claim. If VETS cannot resolve the claim, the individual may request that it be referred to OSC. In addition to handling USERRA claims, OSC handles claims of prohibited personnel practices by federal agencies. In a March 2004 report, we discussed OSC's performance in processing cases filed with the agency, including those filed under USERRA. This report provides information on (1) how OSC carries out its responsibilities under USERRA, (2) the average number of days OSC took to process USERRA claims from fiscal years 1999 through 2003, (3) changes OSC has made to handle current USERRA claims and any increase in claims, and (4) changes OSC believes are necessary to make the handling of USERRA claims in the federal sector more efficient and effective.
OSC's responsibility under USERRA is to determine the merits of claims it receives from DOL and to seek corrective action on behalf of individuals in federal employment whose claims have merit. In its self-described role as a "special prosecutor" of such claims, OSC attempts to resolve a claim that has merit first by negotiating with the claimant's federal employer. If negotiation fails, OSC proceeds to initiate legal action against the employer before the Merit Systems Protection Board and then, if necessary, the U.S. Court of Appeals for the Federal Circuit. OSC determines the merits of each claim by performing its own legal analysis and independently reviewing the facts and law applicable to the claim. OSC agreed with DOL's recommendation about whether or not a claim had merit in about 73 percent of the claims (43 of 59) OSC processed from fiscal years 1999 through 2003. After conducting its own review of these claims, OSC determined that 5 of the 59 claims had merit. OSC took an average of about 145 days to process the 59 USERRA claims that the agency received from fiscal year 1999 through 2003. According to OSC, it obtained full corrective action from the involved federal agency for all 5 claims that OSC determined had merit during fiscal years 1999 through 2003. Recently, OSC has taken several steps that agency officials said would be helpful in processing USERRA cases more quickly and in dealing effectively with anticipated increases in new USERRA cases. Most significantly, in April 2004, OSC established its Special Projects Unit (SPU) to act as a "SWAT" team to address high-priority case processing needs, including the handling of all USERRA cases. By assigning all USERRA cases to SPU and detailing attorneys specializing in these cases to SPU, OSC's objective is to ensure that these cases get priority attention. OSC officials also reported that the agency is working closely with the Department of Defense's National Committee for Employer Support of the Guard and Reserve to explain to federal employees their rights under USERRA. Also, OSC said it maintains Web-based and telephone "hot lines" that provide a source of information and assistance about employer and employee rights and responsibilities under USERRA. The Special Counsel said that to help ensure that OSC has all of the information that it needs to resolve a claim, OSC should be allowed to get involved in a USERRA claim while the investigation at DOL is ongoing, rather than having to wait until DOL finishes it and refers the claim to OSC. In this regard, OSC and DOL are discussing amendments to a memorandum of understanding between the two agencies that would bring OSC into the process earlier. According to DOL, OSC would become involved once VETS finished its investigation and sent the claim to DOL's regional solicitor. OSC has asked DOL to identify difficult cases that would benefit from OSC's earlier involvement. DOL opposes a change that would give OSC authority to receive and process USERRA claims, noting that if OSC performs initial investigations it would create inconsistency in the federal USERRA process. Second, the Special Counsel said if OSC was given the authority under USERRA to pursue disciplinary actions against offending federal supervisors in cases in a manner similar to authority the agency has in enforcing other federal employment violations, supervisors would be held accountable for upholding the law. Currently, under USERRA, OSC can seek only corrective action from the federal agency.
GAO-05-74R, U.S. Office of Special Counsel's Role in Enforcing Law to Protect Reemployment Rights of Veterans and Reservists in Federal Employment
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October 6, 2004:
The Honorable Edward M. Kennedy:
Ranking Minority Member:
Committee on Health, Education, Labor, and Pensions:
United States Senate:
Subject: U.S. Office of Special Counsel's Role in Enforcing Law to
Protect:
Reemployment Rights of Veterans and Reservists in Federal Employment:
Dear Senator Kennedy:
The U.S. Office of Special Counsel (OSC) enforces the rights of federal
employees and applicants for federal employment under the Uniformed
Services Employment and Reemployment Rights Act (USERRA) of
1994.[Footnote 1] USERRA provides for the employment and reemployment
rights of federal and nonfederal employees who leave their employment
to perform military service. USERRA also prohibits discrimination
against persons because of their military service. In light of the
significant number of National Guard members and reservists serving in
the war in Iraq and in other conflicts who will be demobilized and
returning to the federal workforce in the coming months, you asked us
to review issues surrounding enforcement of the act in the federal
sector, particularly by OSC.
Under USERRA, a federal employee or applicant who believes that his or
her USERRA rights have been violated may file a claim with the
Department of Labor's (DOL) Veterans' Employment and Training Service
(VETS), which investigates and attempts to resolve the claim.[Footnote
2] If VETS cannot resolve the claim, the individual may request that it
be referred to OSC. [Footnote 3] In addition to handling USERRA claims,
OSC handles claims of prohibited personnel practices by federal
agencies. In a March 2004 report, we discussed OSC's performance in
processing cases filed with the agency, including those filed under
USERRA.[Footnote 4] This report responds to your request to provide
information on (1) how OSC carries out its responsibilities under
USERRA, (2) the average number of days OSC took to process USERRA
claims from fiscal years 1999 through 2003, (3) changes OSC has made
to handle current USERRA claims and any increase in claims, and (4)
changes OSC believes are necessary to make the handling of USERRA
claims in the federal sector more efficient and effective.
To address these objectives, we interviewed OSC and DOL officials
responsible for processing federal sector USERRA cases and coordinating
efforts between OSC and VETS. We reviewed OSC's documents describing
the agency's role in the referral process and the procedures for
processing USERRA cases. To obtain perspectives concerning OSC's plans
to handle any increase in USERRA cases and changes needed to ensure
protections of service members' reemployment rights, we interviewed key
agency officials and reviewed written testimony from a June 23, 2004,
House Committee on Veterans Affairs hearing on compliance with USERRA.
To determine the average time spent by OSC to process a USERRA claim
during fiscal years 1999 through 2003, we reviewed caseload data
generated from OSC's data tracking system (OSC 2000). Processing time
for a claim is determined from the date that a claim is referred to OSC
until the case is either resolved through corrective action, OSC
decides that the case has no merit, or OSC files a case with the Merit
Systems Protection Board (MSPB).[Footnote 5] In our March 2004 report,
we assessed the reliability of the case tracking data system and
verified the accuracy of the data by comparing and testing electronic
data elements for obvious errors. To determine the completeness and
accuracy of OSC's USERRA case data, we compared OSC's data with data
from DOL on the number of cases referred and the recommendation of the
merits of those cases. On the basis of our assessment of OSC 2000 and
the caseload data that it generated, we determined that the data for
fiscal years 1999 through 2003 were sufficiently reliable for the
purposes of our report. We conducted our review in Washington, D.C.,
from April 2004 through September 2004 in accordance with generally
accepted government auditing standards.
Results in Brief:
OSC's responsibility under USERRA is to determine the merits of claims
it receives from DOL and to seek corrective action on behalf of
individuals in federal employment whose claims have merit. In its self-
described role as a "special prosecutor" of such claims, OSC attempts
to resolve a claim that has merit first by negotiating with the
claimant's federal employer. If negotiation fails, OSC proceeds to
initiate legal action against the employer before MSPB and then, if
necessary, the U.S. Court of Appeals for the Federal Circuit. The claim
referral from DOL to OSC includes the results of DOL's investigation
and the legal analysis of the claim by the appropriate DOL regional
solicitor. While OSC takes this information into account, the agency
determines the merits of each claim by performing its own legal
analysis and independently reviewing the facts and law applicable to
the claim. OSC agreed with DOL's recommendation about whether or not a
claim had merit in about 73 percent of the claims (43 of 59) OSC
processed from fiscal years 1999 through 2003. After conducting its own
review of these claims, OSC determined that 5 of the 59 claims had
merit.
OSC took an average of about 145 days to process the 59 USERRA claims
that the agency received from fiscal year 1999 through 2003. During
this period, USERRA claims represented less than 1 percent of OSC's
overall caseload. Unlike the law governing prohibited personnel
practice cases, USERRA does not include a time frame within which OSC
is required to process cases covered under the act. According to OSC,
it obtained full corrective action from the involved federal agency for
all 5 claims that OSC determined had merit during fiscal years 1999
through 2003.
Recently, OSC has taken several steps that agency officials said would
be helpful in processing USERRA cases more quickly and in dealing
effectively with anticipated increases in new USERRA cases. Most
significantly, in April 2004, OSC established its Special Projects Unit
(SPU) to act as a "SWAT" team to address high-priority case processing
needs, including the handling of all USERRA cases. Prior to the
formation of SPU, OSC attorneys who specialized in USERRA may have had
other priority cases, and nonspecialists in USERRA were assigned USERRA
cases. By assigning all USERRA cases to SPU and detailing attorneys
specializing in these cases to SPU, OSC's objective is to ensure that
these cases get priority attention. OSC officials also reported that
the agency is working closely with the Department of Defense's National
Committee for Employer Support of the Guard and Reserve to explain to
federal employees their rights under USERRA. Also, OSC said it
maintains Web-based and telephone "hot lines" that provide a source of
information and assistance about employer and employee rights and
responsibilities under USERRA.
At the June 2004 hearing before the House Committee on Veterans
Affairs, the Special Counsel discussed two potential enhancements to
OSC's authority that he said could help make the handling of USERRA
cases in the federal sector more efficient and effective. In both
instances, the Special Counsel said it is unclear whether USERRA
already gives OSC such authority. First, the Special Counsel said that
to help ensure that OSC has all of the information that it needs to
resolve a claim, OSC should be allowed to get involved in a USERRA
claim while the investigation at DOL is ongoing, rather than having to
wait until DOL finishes it and refers the claim to OSC. In this regard,
OSC and DOL are discussing amendments to a memorandum of understanding
between the two agencies that would bring OSC into the process earlier.
According to DOL, OSC would become involved once VETS finished its
investigation and sent the claim to DOL's regional solicitor. OSC has
asked DOL to identify difficult cases that would benefit from OSC's
earlier involvement. OSC officials have indicated that they support a
demonstration project, included in proposed legislation, that would
allow OSC to get involved earlier by requiring DOL to share
responsibility with OSC for receiving and processing USERRA claims. DOL
opposes a change that would give OSC authority to receive and process
USERRA claims, noting that if OSC performs initial investigations it
would create inconsistency in the federal USERRA process. Second, the
Special Counsel said if OSC was given the authority under USERRA to
pursue disciplinary actions against offending federal supervisors in
cases in a manner similar to authority the agency has in enforcing
other federal employment violations, supervisors would be held
accountable for upholding the law. Currently, under USERRA, OSC can
seek only corrective action from the federal agency.
Background:
OSC's mission is to safeguard the federal merit system, primarily by
investigating prohibited personnel practices and seeking corrective or
disciplinary action through negotiation with agencies or prosecuting
claims before MSPB. OSC is authorized to receive disclosures of alleged
wrongdoing, such as violations of law and "gross waste" of funds by
federal employees (termed "whistleblower disclosures").[Footnote 6]
The agency also has jurisdiction over the Hatch Act,[Footnote 7] which
regulates the political activities of individuals employed by the
federal and District of Columbia governments as well as certain state
and local government employees employed in connection with programs
financed by federal funds.
Following the 1991 Gulf War, reservists and employers flooded the
government with questions and claims concerning the reemployment rights
of reservists who had been away from their jobs during the war. At that
time, reemployment rights were set forth in the provisions of the
Veterans Reemployment Rights Act of 1974.[Footnote 8] In 1994,
following review of the effectiveness of the 1974 act, Congress passed
USERRA to clarify, simplify, and strengthen the existing employment and
reemployment rights of veterans. USERRA prohibits a public or private
sector employer from denying any benefit of employment on the basis of
any individual's membership, application for membership, performance of
service, application for service, or obligation for service in the
uniformed services. USERRA also protects individuals from retaliation
for asserting, or assisting someone in asserting, their rights under
USERRA. USERRA also protects the employment and reemployment rights of
veterans, reservists, National Guard members, and certain other members
of the uniformed services who were absent from their civilian
employment due to military service, including service for training.
OSC Evaluates Claims Received from DOL and Seeks Corrective Action for
Individuals with Claims That Have Merit:
OSC's responsibility under USERRA is to determine the merits of federal
sector claims it receives from DOL and to seek corrective action on
behalf of individuals whose claims have merit. In its self-described
role as a "special prosecutor" of such claims, OSC attempts to resolve
a claim that has merit first by negotiating with the claimant's federal
employer. If negotiation fails, OSC would proceed with legal action
against the employer before MSPB[Footnote 9] and then, if necessary, in
the U.S. Court of Appeals for the Federal Circuit.
OSC is not authorized to receive USERRA federal sector claims directly
from claimants. Instead, OSC receives claims after they have been filed
with VETS. If VETS efforts do not resolve the claim, the individual can
have the case referred to OSC, regardless of its merit.
When an individual employed by the federal government requests that his
or her claim be referred to OSC, VETS regional investigators first send
the investigative file and a recommendation for or against
representation to the appropriate DOL regional solicitor. [Footnote 10]
The regional solicitor identifies the legal issues surrounding the
claim and prepares a legal analysis. This analysis, a conclusion as to
the merits of the case, and a recommendation about whether OSC should
provide representation are included in the letter of referral from the
regional solicitor to OSC. While OSC takes this information into
account, the agency conducts its own review of the facts and law
applicable to each claim. If OSC is satisfied that the claimant is
entitled to corrective action, the agency begins negotiations with the
claimant's federal employer. If an agreement cannot be reached, OSC may
represent the claimant before MSPB, upon the claimant's request. If
MSPB rules against the claimant, OSC may decide to appeal the decision
to the U.S. Court of Appeals for the Federal Circuit. In cases where
OSC finds that the claim does not have merit, OSC would inform the
claimant of its decision not to represent the claimant and the
claimant's right to take the case to MSPB.
In fiscal years 1999 through 2003, for claims referred to OSC by DOL,
OSC and the regional solicitor agreed on whether or not a claim had
merit for about 73 percent of the claims (43 of the 59)[Footnote 11]
and disagreed on about 14 percent (8 of 59). In 2 cases, OSC and DOL
disagreed on procedural issues and in the remaining 6 cases, the
information from OSC was not clear as to DOL's determination. (See fig.
1.)
Figure 1: OSC and DOL's Determinations for Cases Processed by OSC,
Fiscal Years 1999 through 2003:
[See PDF for image]
[A] DOL's finding cannot be definitively ascertained from OSC
data for varying reasons, including that recommendations were not in
the OSC file or that according to OSC, the file was destroyed pursuant
to federal archive regulations.
[B] OSC found that one case was premature and DOL disagreed. In the
other case, OSC found that the claim was barred because of a prior
claim. Again, DOL disagreed.
[End of figure]
In instances when OSC's determination differs from DOL's determination
on the merits of a case, OSC notifies the regional solicitor of its
determination and the reasoning behind it and invites comments. OSC
reviews the comments of the regional solicitor, if any, prior to making
its final determination on a case. The enclosure provides more detailed
information on the steps in processing a USERRA claim from initiation
to resolution as well as information on the types of USERRA claims.
Claim Processing Time Varied Widely, but OSC Obtained Corrective Action
from Federal Employers on All USERRA Claims That Had Merit:
From fiscal years 1999 through 2003, OSC took an average of about 145
days to process the 59 USERRA claims received from DOL. These USERRA
claims represented less than 1 percent of OSC's entire caseload. USERRA
does not specify a time frame within which OSC is required to process
claims covered under the act.[Footnote 12]
OSC's USERRA claim processing time ranged from as little as 2 days to
as long as 30 months. There was little correlation between whether a
claim was ultimately found to have merit and how long it took to
process it. For example, two of the five claims that the agency
determined had merit took 30 months to process; the other three took
60, 96, and 119 days. Of the claims determined to lack merit, the range
also varied widely. For example, five claims that the agency determined
had no merit took from 10 to 17 months to process; three other claims
found to lack merit took 2 days.
According to OSC, it was able to obtain full corrective action from the
involved federal agency on each of the five claims that OSC determined
had merit.[Footnote 13] DOL agreed with OSC's determination of merit in
four of these claims. In the fifth claim, DOL determined that the claim
lacked merit.
OSC Has Made Changes Designed to Expedite Handling of Current USERRA
Claims and Any Influx of New Claims:
According to OSC officials, under the current Special Counsel, the
agency has taken several steps to help process current USERRA claims
more quickly and cope effectively with anticipated increases in USERRA
claims. Most significantly, in April 2004, OSC established its SPU that
acts as a "SWAT" team to address high-priority claim processing needs,
including the handling of all USERRA claims.
According to OSC, SPU is intended to maximize OSC's efficiency by
eliminating OSC's chronic backlog of non-USERRA claims. Prior to the
establishment of SPU, OSC attorneys who specialized in USERRA may have
had other priority claims, and nonspecialists in USERRA were assigned
USERRA claims. By assigning all USERRA claims to SPU and detailing
attorneys specializing in these claims to SPU, the Special Counsel said
he intends to give these claims priority attention. According to OSC,
SPU will have two attorneys with USERRA experience and a supervisory
attorney handling USERRA claims. OSC further stated that it would
detail or hire additional attorneys, investigators, and other OSC
staff, as needed, to handle any surge in the number of USERRA claims it
receives.
In another action, OSC has initiated steps to inform federal employees
and managers during visits to federal agencies about OSC's role in
protecting the employment and reemployment rights of guardsmen and
reservists. Officials also said that OSC is working closely with the
Department of Defense's National Committee for Employer Support for the
Guard and Reserve to explain to federal employees their rights under
USERRA. In addition, OSC said it maintains Web-based and telephone "hot
lines" that provide information and assistance about employer and
employee rights and responsibilities under USERRA.
OSC Says Enhancements to Its Authority Are Needed to Ensure the
Protection of USERRA Rights:
In his June 2004 testimony, the Special Counsel said the USERRA
referral process creates unnecessary inefficiency, and he said more
specific authority for OSC to investigate claims and pursue
disciplinary action against offending federal supervisors could help
remedy this problem. The Special Counsel said it is unclear whether
USERRA already gives OSC such authority.
Under current procedures, once a person with a claim against the
federal government requests that VETS refer a claim to OSC, the
regional solicitor undertakes its legal analysis or additional
investigation where necessary, which OSC says generally takes about 3
to 6 months, but can take longer. Only after completion of the analysis
is the claim referred to OSC. The Special Counsel said that after
receiving a claim from the regional solicitor, OSC often requests that
the involved federal agency voluntarily provide information to OSC that
VETS had not requested.
The Special Counsel also testified that processing claims under USERRA
could be more efficient if the investigative and prosecutorial
authority, currently bifurcated between DOL and OSC under the act, were
merged. He noted that OSC has the authority to investigate and
prosecute allegations of prohibited personnel practices. The Special
Counsel said merging of the investigative and analytical functions
would reduce the chances of "over-investigating" USERRA cases that are
without merit and would increase the chances of identifying claims
warranting prosecution so that OSC can move expeditiously toward
obtaining corrective action on behalf of the claimant.
In an attempt to bring OSC's investigative and legal expertise into the
process earlier, OSC and VETS are discussing amendments to a memorandum
of understanding between the two agencies. VETS officials indicated
that OSC's earlier involvement would begin when the claimant asked that
the claim be referred to OSC, which is when the regional solicitor gets
the claim from VETS. OSC has also asked VETS to identify difficult
claims that would benefit from OSC's early involvement.
OSC officials have indicated that they support recently proposed
legislation that calls for a demonstration project for OSC to share
responsibility with DOL to receive and investigate USERRA
claims.[Footnote 14] For the period of the demonstration, this
legislation would allow OSC to receive certain USERRA claims directly
from claimants employed by the federal government without these claims
going through DOL first. Such a change would represent a new method of
delivering services to those covered under the act. It is unclear
whether OSC would need additional procedures or resources to use the
new authority that this legislation would give the agency.
DOL officials stated that while they are working to involve OSC earlier
in DOL investigations where it may be advantageous to the claimant to
do so, DOL does not concur or support the idea of OSC receiving USERRA
claims and conducting initial investigations of those claims. DOL is
concerned that if OSC performs the initial investigations in USERRA
claims without DOL participation, this would create inconsistency in
the federal government in how USERRA cases are investigated. DOL
currently investigates both private and public sector (including
federal) USERRA claims. DOL officials stated that in fiscal year 2003,
the department resolved about 94 percent of USERRA complaints without
referral to either the Department of Justice or OSC.[Footnote 15]
According to DOL, if OSC investigates USERRA claims brought against
federal employers, the federal sector claimant will not have the
benefit that private sector and other public sector claimants would
have of DOL's expertise in investigating and settling cases, which
currently resolves most cases without the need for litigation.
In response to DOL's concerns, OSC stated that an allegation of a
USERRA violation is identical to a prohibited personnel practice, as
every USERRA complaint involves the allegation of an illegal employment
practice. According to OSC, it has experience and expertise in handling
veterans' preference issues, discrimination cases, reprisal claims, and
violations of federal personnel regulations. The agency stated that it
employs personnel specialists, investigators, and federal labor law
attorneys to carry out its role of investigating prohibited personnel
practices in the federal sector and maintains liaisons with nearly
every federal agency for the purpose of facilitating its investigations
and case resolutions. OSC also stated that it has an Alternate Dispute
Resolution Unit that offers mediation services in appropriate cases.
When discussing what he called a lack of clarity with respect to OSC's
authority to pursue disciplinary action against offending federal
supervisors for USERRA violations, the Special Counsel noted that OSC
has this authority in dealing with other federal employment violations,
such as prohibited personnel practice cases.[Footnote 16] Under USERRA,
however, the agency generally seeks only corrective action.
Agency Comments:
On September 10, 2004, we provided a draft of this report to DOL and
OSC for their review and comment. DOL's comments, from the Office of
the Assistant Secretary of Veterans' Employment and Training Services,
centered on proposed legislation that would give OSC the authority to
receive and investigate USERRRA claims. Officials indicated that they
are working to include OSC earlier in investigations done by the
department but they do not concur or support a change that would allow
OSC to do initial investigations of USERRA claims. DOL stated that such
a change would create inconsistency in the federal government in how
USERRA cases are investigated and deprive federal sector claimants of
the benefit that private sector and other public sector claimants have
of the department's expertise in investigating and settling cases. We
incorporated DOL's position on the proposed legislation and other
technical comments as appropriate.
We received oral comments from OSC's Director, Congressional and Public
Affairs. OSC agreed with the contents of the report and stated that the
report accurately reflected the agency's role in enforcing USERRA. With
respect to concerns expressed by DOL about OSC becoming involved in
initial investigations of USERRA claims, OSC responded that it has the
experience and expertise to obtain all relevant information to reach a
determination as to whether the USERRA claimant is entitled to relief
under the statute. Officials further stated that given OSC's 25 years
of experience in investigating and resolving illegal employment
practices in the federal sector, USERRA claimants will not be
disadvantaged at all by having OSC receive and process their claims.
OSC reiterated its point that for claims received and processed
entirely by OSC, the proposed legislation would eliminate an arguably
unnecessary bifurcation of investigative and prosecutorial functions.
Consequently, according to OSC, service members would benefit from
having their USERRA cases processed in a more timely and efficient
manner that may exceed that which is afforded under the current system.
In addition, OSC provided technical comments, which we have
incorporated as appropriate.
__ __ __ __ __ __:
As agreed with your office, unless you publicly announce its contents
earlier, we plan no further distribution of this report until 30 days
after its issuance date. At that time we will send copies to the
Secretary of Labor; Special Counsel, Office of Special Counsel;
interested congressional committees; and other interested parties. In
addition, this report will be available without charge on GAO's Web
site at www.gao.gov.
If you have questions about this report, please contact me at (202)
512-9490 or Belva Martin, Assistant Director, at (202) 512-4285. You
may also reach us by e-mail at stalcupg@gao.gov or martinb@gao.gov.
Other key contributors to this assignment were Karin Fangman, Sharon
Hogan, and Michael Rose.
Sincerely yours,
George H. Stalcup:
Director, Strategic Issues:
Enclosure:
Enclosure:
Procedures for Processing USERRA Cases:
The processing of a Uniformed Services Employment and Reemployment
Rights Act of 1994 (USERRA) case generally begins when an aggrieved
federal employee or applicant files a complaint with the Department of
Labor's (DOL) Veterans Employment and Training Service (VETS) and
continues until the claim is resolved. Figure 2 details the steps in
that process.
Figure 2: Administrative Process for Federal Sector USERRA Claims:
When the Office of Special Counsel (OSC) receives a USERRA referral,
the agency enters the claim into its computerized case tracking system-
-OSC 2000--and sends an acknowledgment letter to the DOL regional
solicitor. OSC also sends an acknowledgment letter to the claimant
along with a consent form for the claimant to sign and return to OSC.
The consent form designates the extent to which OSC is permitted to (1)
communicate with the regional solicitor, VETS, and the involved federal
employer and (2) disclose the claimant's identity. General procedures
for referring USERRA claims are expressly stated in a February 2001
memorandum of understanding between OSC and VETS, which describes the
respective roles and responsibilities of the agencies. OSC officials
stressed that open communication with DOL allows the two agencies to
share information and is vital to effective USERRA enforcement. For
example, OSC may request clarification of the letter of referral and
legal analysis from the regional solicitor, who is supposed to
facilitate communication between OSC and the DOL investigator of the
claim.
OSC's criterion for deciding whether to represent a claimant is
predicated upon the merit of the claim, which is dictated by two main
factors: the facts of the case and application of the law. In reviewing
USERRA cases, OSC officials told us that practical experience with
other types of cases, such as prohibited personnel practice and
whistleblower disclosure cases, has helped OSC attorneys to examine the
evidence, identify deviations from standard operational procedures and
practices, and look for signs of disparate treatment of the claimant
compared to other federal employees or applicants.
On occasion, OSC receives alleged violations of USERRA or other laws
pertaining to veterans' rights as part of broader, multifaceted
prohibited personnel practice cases. An OSC official stated that staff
are trained to detect cases alleging that a right under any law or
regulation related to veterans' preference may have been violated and
to immediately send these cases directly to OSC's USERRA supervisory
attorney for review. This is especially important because only DOL
handles claims alleging violations of veterans' preference. Mindful
that there is a time limit within which individuals must file their
claims in such cases, OSC advises claimants to promptly seek corrective
action with DOL.
OSC is not required to represent every claimant who seeks its
assistance. In USERRA cases where OSC determines there is no merit, OSC
declines representation and notifies the claimants of (1) the fact that
the Special Counsel has decided not to represent the claimant and (2)
the claimant's right to file an appeal with MSPB. Pursuant to the terms
of the memorandum of understanding between OSC and VETS, the notice
does not discuss the factual or legal bases of OSC's determination not
to represent the claimant as that notice, which is not privileged from
discovery, may otherwise be obtained by the agency and used against the
claimant in any subsequent litigation. OSC sends a copy of the
notification to the DOL regional solicitor.
Types of USERRA Claims:
Under USERRA, there are two types of claims: (1) discrimination,
including retaliation, and (2) reemployment rights. Of the 59 USERRA
claims that OSC received from DOL in fiscal years 1999 through
2003,[Footnote 17] OSC data show 12 as reemployment rights; 46 as
discrimination, including a claim where the complainant alleged
retaliation for filing a USERRA claim; and the remaining claim
contained allegations of both reemployment and discrimination issues.
(450334):
FOOTNOTES
[1] Pub. L. No. 103-353, 108 Stat. 3149, as amended, codified at 38
U.S.C. sections 4301-4333.
[2] VETS also handles claims from employees of other employers,
including state government and private sector employers. If VETS cannot
resolve these nonfederal claims, an individual may ask for a referral
to the Department of Justice, which may prosecute the claim.
[3] According to VETS, in fiscal year 2003, the agency resolved about
94 percent of the claims submitted to it without the need for referral.
The resolution of these claims includes agency voluntary compliance,
settlement, no merit conclusions, and administrative closures.
[4] See GAO, U.S. Office of Special Counsel: Strategy for Reducing
Persistent Backlog of Cases Should Be Provided to Congress, GAO-04-36
(Washington, D.C.: Mar. 8, 2004).
[5] MSPB is an independent, quasi-judicial agency in the executive
branch that serves as the guardian of federal merit principles.
[6] Reprisal for whistleblower disclosure is a prohibited personnel
practice.
[7] The provisions commonly referred to as the Hatch Act, as applied to
federal and District of Columbia employees, are found under subchapter
III of chapter 73 of title 5. The Hatch Act provisions relating to
certain state and local employees are found under chapter 15 of title
5.
[8] Pub. L. No. 93-508, 88 Stat 1578 (Dec. 3, 1974).
[9] A claimant can bypass both VETS and OSC and take his or her claim
directly to MSPB.
[10] DOL‘s Office of the Solicitor is the chief legal counsel
responsible for providing legal advice and analysis for the agency. The
office has eight regional offices, which are each headed by a regional
solicitor.
[11] While OSC received 60 claims from DOL during this period, we
excluded one case from our review because it was opened, closed,
reopened, closed again, and is currently under reconsideration, meaning
it was unresolved at the time of our review.
[12] In its annual reports to Congress, OSC provides data on the
different categories of claims pending at the end of each fiscal year.
Because OSC is required to process prohibited personnel practice and
whistleblower disclosure claims within certain statutory time frames,
the agency reports the "backlog"--the number of claims that have not
been processed in the applicable time frame. Technically, because
USERRA does not require OSC to process claims within a specific
statutory time frame, there is no backlog of these cases. Claims
pending at the end of a fiscal year, however, are carried over to the
following year.
[13] During his June 23, 2004, testimony, the Special Counsel said OSC
filed its first USERRA claim with MSPB that day because OSC determined
that an agency was unwilling to provide adequate relief for a service
member.
[14] H.R. 4658, 108TH Cong. sec. 212 (2004). See also S.2791, 108TH
Cong. sec. 6 (2004).
[15] According to DOL, of the claims that are referred by DOL, 90
percent are private sector and state and local government claims that
are referred to the Department of Justice and only about 10 percent are
claims against the federal government, which are referred to OSC.
[16] Under 5 U.S.C. 1215, OSC is authorized to seek disciplinary action
against an agency employee for having committed a prohibited personnel
practice or having violated another provision of law within OSC's
jurisdiction, as set forth in 5 U.S.C. 1216. 5 U.S.C. 1216 does not
include specific reference to OSC's authority under USERRA.
[17] While OSC received 60 claims from DOL during this period, we
excluded one case from our review because it was opened, closed,
reopened, closed again, and is currently under reconsideration, meaning
it was unresolved at the time of our review.
