Military Personnel
Federal Management of Servicemember Employment Rights Can Be Further Improved Gao ID: GAO-06-60 October 19, 2005The Uniformed Services Employment and Reemployment Rights Act (USERRA) of 1994 protects millions of people, largely National Guard and Reserve members, as they transition between their federal duties and their civilian employment. The act is intended to eliminate or minimize employment disadvantages to civilian careers that can result from service in the uniformed services. This report examines the extent to which the Departments of Defense (DOD), Labor (DOL), Justice (DOJ), and the Office of Special Counsel (OSC) have achieved this purpose, specifically, the extent to which the agencies (1) have data that indicate the level of compliance with USERRA, (2) have efficiently and effectively conducted educational outreach, and (3) have efficiently and effectively addressed servicemember complaints.
Whether or not overall USERRA compliance has changed is difficult to firmly establish; however, the agencies that support or enforce USERRA have collected formal and informal complaint data and some employer support figures that provide limited insights into compliance. For example, DOL's formal complaint numbers show a possible relationship with the level of the use of the reserve components and the number of complaints. DOD data show that some employers exceed USERRA requirements, but these data have limitations. DOD has only 1 full year of informal complaint data, so it will be several years before DOD can identify any meaningful trends in informal complaints. Because informal complaint figures have not been captured on a consistent basis, agencies lack the data necessary to identify total complaint trends. Furthermore, data from a 2004 DOD survey showed that at least 72 percent of National Guard and Reserve members with USERRA problems never sought assistance for their problems. This raises questions as to whether complaint numbers alone can fully explain USERRA compliance or employer support. Some recently added employment questions on DOD's periodic surveys, if continued, offer the potential to provide insight into compliance and employer support issues. DOD, DOL, and OSC have educated hundreds of thousands of employers and servicemembers about USERRA, but the efficiency and effectiveness of this outreach is hindered by a lack of employer information. DOD's reserve component members who can be involuntarily called to active duty are required to enter their civilian employer information into a DOD database but the services have not enforced this requirement and as of August 2005, about 40 percent of the members had not entered the required information. Without information about the full expanse of servicemember employers, federal agencies have conducted general outreach efforts but have been limited in their ability to efficiently and effectively target educational outreach efforts to employers who actually have servicemember employees. Agency abilities to efficiently and effectively address servicemember complaints are hampered by incompatible data systems, a reliance on paper files, and a segmented process that lacks visibility. The systems that DOD, DOL, DOJ, and OSC use to track USERRA complaints are not compatible. As a result, data collection efforts are sometimes duplicated, and DOL relies on its paper files when transferring or reviewing complaints. This slows the transfer of complaints and limits the ability of DOL managers to conduct effective, timely oversight of complaint files. Furthermore, segmented responsibilities and lack of visibility have led agencies to focus on outputs rather than results. For example, agencies measure complaint processing times but not the elapsed time servicemembers actually wait to have their complaints fully addressed. GAO analysis of 52 complaints that had been closed and reopened two or more times found that recorded processing times averaged 103 days but the actual elapsed times that servicemembers waited to have their complaints fully addressed averaged 619 days.
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Report to the Ranking Minority Member, Committee on Health, Education,
Labor, and Pensions, U.S. Senate:
October 2005:
Military Personnel:
Federal Management of Servicemember Employment Rights Can Be Further
Improved:
GAO-06-60:
GAO Highlights:
Highlights of GAO-06-60, a report to the Ranking Minority Member,
Committee on Health, Education, Labor, and Pensions, U.S. Senate:
Why GAO Did This Study:
The Uniformed Services Employment and Reemployment Rights Act (USERRA)
of 1994 protects millions of people, largely National Guard and Reserve
members, as they transition between their federal duties and their
civilian employment. The act is intended to eliminate or minimize
employment disadvantages to civilian careers that can result from
service in the uniformed services. This report examines the extent to
which the Departments of Defense (DOD), Labor (DOL), Justice (DOJ), and
the Office of Special Counsel (OSC) have achieved this purpose,
specifically, the extent to which the agencies (1) have data that
indicate the level of compliance with USERRA, (2) have efficiently and
effectively conducted educational outreach, and (3) have efficiently
and effectively addressed servicemember complaints.
What GAO Found:
Whether or not overall USERRA compliance has changed is difficult to
firmly establish; however, the agencies that support or enforce USERRA
have collected formal and informal complaint data and some employer
support figures that provide limited insights into compliance. For
example, DOL‘s formal complaint numbers show a possible relationship
with the level of the use of the reserve components and the number of
complaints. DOD data show that some employers exceed USERRA
requirements, but these data have limitations. DOD has only 1 full year
of informal complaint data, so it will be several years before DOD can
identify any meaningful trends in informal complaints. Because informal
complaint figures have not been captured on a consistent basis,
agencies lack the data necessary to identify total complaint trends.
Furthermore, data from a 2004 DOD survey showed that at least 72
percent of National Guard and Reserve members with USERRA problems
never sought assistance for their problems. This raises questions as to
whether complaint numbers alone can fully explain USERRA compliance or
employer support. Some recently added employment questions on DOD‘s
periodic surveys, if continued, offer the potential to provide insight
into compliance and employer support issues.
DOD, DOL, and OSC have educated hundreds of thousands of employers and
servicemembers about USERRA, but the efficiency and effectiveness of
this outreach is hindered by a lack of employer information. DOD‘s
reserve component members who can be involuntarily called to active
duty are required to enter their civilian employer information into a
DOD database but the services have not enforced this requirement and as
of August 2005, about 40 percent of the members had not entered the
required information. Without information about the full expanse of
servicemember employers, federal agencies have conducted general
outreach efforts but have been limited in their ability to efficiently
and effectively target educational outreach efforts to employers who
actually have servicemember employees.
Agency abilities to efficiently and effectively address servicemember
complaints are hampered by incompatible data systems, a reliance on
paper files, and a segmented process that lacks visibility. The systems
that DOD, DOL, DOJ, and OSC use to track USERRA complaints are not
compatible. As a result, data collection efforts are sometimes
duplicated, and DOL relies on its paper files when transferring or
reviewing complaints. This slows the transfer of complaints and limits
the ability of DOL managers to conduct effective, timely oversight of
complaint files. Furthermore, segmented responsibilities and lack of
visibility have led agencies to focus on outputs rather than results.
For example, agencies measure complaint processing times but not the
elapsed time servicemembers actually wait to have their complaints
fully addressed. GAO analysis of 52 complaints that had been closed and
reopened two or more times found that recorded processing times
averaged 103 days but the actual elapsed times that servicemembers
waited to have their complaints fully addressed averaged 619 days.
What GAO Recommends:
GAO is making a number of recommendations to better identify USERRA
compliance and employer support trends, more efficiently and
effectively educate employers, increase agency responsiveness, and
process USERRA complaints. DOD, DOL, and OSC concurred with the
recommendations. DOJ did not comment on the draft report. To encourage
results rather than outputs, Congress should consider designating a
single office to maintain visibility over the entire complaint
resolution process.
www.gao.gov/cgi-bin/getrpt?GAO-06-60.
To view the full product, including the scope and methodology, click on
the link above. For more information, contact Derek B. Stewart (202)
512-5559 or stewartd@gao.gov.
[End of section]
Contents:
Letter:
Results in Brief:
Background:
Agencies' Available Data Provides Limited Insight in Overall USERRA
Compliance and Employer Support:
Agencies Have Conducted Educational Outreach, but Efficiency and
Effectiveness of Outreach Has Been Hindered by Lack of Employer
Information:
Agencies' Ability to Efficiently and Effectively Address Complaints
Hampered by Incompatible Data Systems, Reliance on Paper Files, and
Lack of Visibility:
Conclusions:
Recommendations for Executive Action:
Matter for Congressional Consideration:
Agencies Comments and Our Evaluation:
Appendixes:
Appendix I: Scope and Methodology:
Appendix II: Professional Backgrounds of the ESGR's Volunteer
Ombudsmen:
Appendix III: Department of Labor Form 1010:
Appendix IV: DOD's Outreach Programs:
Appendix V: GAO's Survey of the ESGR's Volunteer Ombudsmen Including
Results:
Appendix VI: DOL's USERRA Information Poster:
Appendix VII: Comments from the Department of Defense:
Appendix VIII: Comments from the Department of Labor:
Appendix IX: Comments from the Office of Special Counsel:
Appendix X: GAO Contact and Staff Acknowledgments:
Tables:
Table 1: Formal Complaints Opened by the Department of Labor, Fiscal
Years 1989 through 2004:
Table 2: Data from GAO's Survey of the ESGR Ombudsmen:
Table 3: Employment Status of the ESGR's Ombudsmen (as of April 6,
2005):
Table 4: The Primary Employers of the ESGR's Ombudsmen (as of April 6,
2005):
Figures:
Figure 1: Process to Resolve a USERRA Complaint Using Federal
Assistance:
Figure 2: Percentages of Selected Reserve Members Surveyed Who Work for
Various Types of Employers:
Figure 3: Percentages of Selected Reserve Members Who Work for
Employers of Various Sizes:
Figure 4: Percentages of Ready Reserve Members Who Had Supplied
Civilian Employment Information as of August 10, 2005:
Letter October 19, 2005:
The Honorable Edward M. Kennedy:
Ranking Minority Member:
Committee on Health, Education, Labor, and Pensions:
United States Senate:
Dear Senator Kennedy,
The Uniformed Services Employment and Reemployment Rights Act (USERRA)
of 1994[Footnote 1] protects millions of individuals[Footnote 2] as
they transition between their federal duties and their civilian
employment. Prior to USERRA, reemployment rights were set forth in the
Vietnam Era Veterans' Readjustment Assistance Act of 1974.[Footnote 3]
Following the 1991 Gulf War, military servicemembers and employers
flooded the government with questions and complaints concerning
reemployment rights. In 1994, following a review of the effectiveness
of the 1974 act, Congress passed USERRA to "encourage non-career
service in the uniformed services by eliminating or minimizing the
disadvantages to civilian careers and employment which can result from
such service." The act covers not only the more than 2 million members
who have served in the reserve components[Footnote 4] of the armed
services since the act was passed, but also large numbers of active
duty servicemembers and veterans, including those who served before the
act's passage. For example, citizens who left civilian jobs and signed
active duty enlistment contracts following the events of September 11,
2001, retain reemployment rights under USERRA as long as they meet a
few basic requirements. Among the eligibility requirements are (1) the
absence of the receipt of a dishonorable or other disqualifying
discharge, (2) giving proper notice prior to departure and after return
from service, and (3) returning within 5 years of departure or
immediately after the expiration of their initial enlistment contracts,
whichever is longer.
Every individual in the country who serves in, has served in, or
intends to serve in the uniformed services is potentially covered by
USERRA. The act applies to a wide range of employers, including
federal, state, and local governments as well as for-profit and not-
for-profit private sector firms. Enforcement and implementation of
USERRA is complex, with several federal agencies having specific and
sometimes overlapping outreach, investigative, or enforcement roles.
Along with the Department of Labor (DOL), the Department of Defense
(DOD) is responsible for informing servicemembers and employers of
their rights, benefits, and obligations under USERRA.[Footnote 5] Much
of DOD's outreach is accomplished through its Employer Support of the
Guard and Reserve (ESGR) organization. The ESGR performs most of its
work through volunteers and specially-trained impartial ombudsmen who
act as informal mediators for USERRA issues that arise between
servicemembers and their employers. DOL, through the efforts of its
Veterans' Employment and Training Service (VETS), is the avenue through
which servicemembers file formal USERRA-related complaints[Footnote 6]
against civilian employers. Representatives of VETS investigate USERRA
complaints and try to resolve disputes, but if they are unable to
resolve servicemember complaints, DOL informs the servicemembers that
they may request to have their complaints referred to the Department of
Justice (DOJ) or to the Office of Special Counsel (OSC). Unresolved
complaints against private sector or state or local government
employers are referred by DOL to DOJ to investigate, mediate, and
litigate. Prior to February 8, 2005, unresolved complaints against
federal executive agency employers were referred from DOL to OSC. Under
a new demonstration project,[Footnote 7] OSC now receives some USERRA
complaints directly from certain servicemembers.
In light of the significant number of National Guard and Reserve
members serving in the Global War on Terrorism who will be demobilized,
returned to their civilian jobs, and possibly called back to duty, you
requested that we review the efforts of certain federal agencies to
support and enforce USERRA, specifically the activities of DOD, DOL,
DOJ, and OSC. We agreed to address your immediate needs by first
reviewing issues surrounding OSC's enforcement of USERRA in the federal
sector. On October 6, 2004, we issued U.S. Office of Special Counsel's
Role in Enforcing Law to Protect Reemployment Rights of Veterans and
Reservists in Federal Employment, [Hyperlink, http://www.gao.gov/cgi-
bin/getrpt?GAO-05-74R]. This report responds to your broader request to
review the actions of the four federal agencies involved in carrying
out USERRA responsibilities. Our objectives were to determine the
extent to which the agencies (1) have data that indicate the level of
compliance with USERRA, (2) have efficiently and effectively conducted
educational outreach, and (3) have efficiently and effectively
addressed servicemember complaints.
To address our first objective, we collected, reviewed, and analyzed
data from a wide variety of sources, including the four federal
agencies that support and enforce USERRA. We analyzed the annual
numbers of complaints filed with DOL and those referred from DOL to DOJ
and OSC from fiscal year 1997 through the third quarter of fiscal year
2005 to determine whether there were trends in the total referrals, or
the referrals to either agency. We also reviewed the tabulations of
responses from DOD's Defense Manpower Data Center (DMDC) May 2004
projectable survey of reserve component members. We also conducted
original analysis on the survey responses that addressed employment
issues. In addition, we conducted a survey of the ESGR's ombudsmen to
obtain information about their backgrounds and training as well as the
numbers of complaints they had handled and resolved. We also reviewed
data related to the ESGR's outreach and employer recognition programs.
To address our second objective, we reviewed USERRA to determine agency
roles and responsibilities in educating servicemembers and employers
concerning USERRA, and we interviewed agency officials from DOD and DOL
to determine how they carry out their USERRA educational outreach
responsibilities. We also collected and analyzed data concerning DOD's
and DOL's outreach activities. We interviewed DOJ and OSC officials to
determine whether they were involved in any outreach activities. To
address our third objective, we reviewed USERRA and the Veterans
Benefits Improvement Act of 2004 to determine agency roles and
responsibilities in processing USERRA complaints. We interviewed
headquarters officials from the four agencies to determine how they
pass complaint information among various offices. Further, we
interviewed the ESGR ombudsmen and customer service center
representatives, state ombudsmen coordinators, DOL investigators, and
officials at two of DOL's regional offices and two of its solicitor's
offices. We reviewed DOL hard copy files in two regional offices and
compared the data in those files to electronic data from DOL's USERRA
Information Management System. We also reviewed agency procedures for
collecting and reporting information about the time required to address
USERRA complaints. We determined that the agency data used in this
report were sufficiently reliable for the purposes of this review,
though the complaint data systems had some limitations that we discuss
further in the report. We conducted our work from October 2004 through
August 2005 in accordance with generally accepted government auditing
standards. A more detailed description of our scope and methodology is
provided in appendix I.
Results in Brief:
Whether overall USERRA compliance or employer support has increased,
decreased, or remained steady is difficult to firmly establish;
however, the federal agencies with responsibilities under USERRA have
collected formal and informal complaint data and some employer support
figures that provide limited insights into USERRA compliance or
employer support. DOL's formal complaint numbers show a possible
relationship with the level of the use of National Guard and Reserve
members and the number of complaints. For example, DOL numbers show
that formal complaints rose in fiscal years 1991 and 1992 following the
substantial increase in the use of the reserve component for Operations
Desert Shield and Desert Storm. The formal complaint numbers rose again
between fiscal years 2001 and 2004 following the larger use of the
reserve component for Operations Noble Eagle, Enduring Freedom, and
Iraqi Freedom. However, DOL's formal complaints were generally lower in
the years following USERRA's passage--ranging from 895 to 1,465 in
fiscal years 1995 through 2004--than in the years prior to its passage
in 1994, when they ranged from 1,208 to 2,537 between fiscal years 1989
through 1994. Because relatively few complaints reach DOJ and OSC by
design, formal complaint data from those agencies may not fully provide
an accurate picture of USERRA compliance or employer support. Between
fiscal years 1995 and 2004, annual formal complaints remained below 59
at DOJ and below 21 at OSC. DOD data indicate that some employers are
exceeding the requirements set forth in USERRA and providing their
servicemember employees with "extra" benefits, but these data have
limitations. DOD's employer support organization, ESGR, has only 1 full
year of informal complaint data, so it will be several years before the
ESGR can identify any meaningful trends in informal complaint numbers.
Because informal complaint figures have not been captured on a
consistent basis, agencies cannot know whether total complaints have
been increasing, decreasing, or remaining steady. Furthermore, a 2004
DOD survey showed that at least 72 percent of Selected Reserve members
with USERRA problems never sought assistance for those problems. This
raises questions as to whether complaint numbers alone can fully
explain USERRA compliance and employer support. These types of recently
added employment questions on DOD's periodic surveys, if continued,
offer the potential to provide insight into compliance and employer
support issues.
DOD, DOL, and OSC have educated hundreds of thousands of servicemembers
and employers about USERRA, but the efficiency and effectiveness of
agency outreach efforts are hindered by a lack of employer information,
an issue that we previously reported and recommended that DOD address.
The agencies' educational outreach efforts have ranged from placing
USERRA information on agency Web sites and maintaining toll-free
information lines, to conducting individual and group briefings.
Despite these many general outreach efforts, agencies lack essential
employer information needed to efficiently and effectively target
outreach to employers who actually have servicemember employees. A
March 21, 2003, memorandum from the Under Secretary of Defense for
Personnel and Readiness required all members of the reserve components
who are subject to being involuntarily called to active duty to provide
DOD with their civilian employment information to assist the department
in accomplishing its employer outreach. However, the services have not
enforced this requirement and as of August 2005, about 40 percent of
DOD's reserve component members who were subject to being called to
active duty had not complied with the requirement to enter their
civilian employer information into DOD's database. With limited
employer data available to them, agencies have been restricted in their
ability to efficiently and effectively target outreach to employers who
actually have servicemember employees. Without complete information
about the full expanse of servicemember employers, the federal agencies
conducting outreach efforts have no assurance that they have informed
all servicemember employers about USERRA rights and obligations.
Agency abilities to efficiently and effectively address servicemember
complaints, as intended by USERRA, are hampered by incompatible data
systems, reliance on paper files, and a segmented process that lacks
visibility. The speed with which servicemember USERRA complaints are
addressed often hinges on efficient and effective information sharing
among the agencies involved in the complaint resolution process.
However, the automated systems that DOD, DOL, DOJ, and OSC use to
capture data about USERRA complaints are not compatible with each
other. As a result, information collection efforts are sometimes
duplicated, which slows complaint processing times. In addition,
agencies are unable to efficiently process complaints because they are
forced to create, maintain, copy, and mail paper files due to the
incompatible data systems. Although DOL maintains electronic complaint
files, it relies on its paper files when transferring complaints and it
also focuses its complaint file reviews on its paper files. This slows
the transfer of complaints and limits the ability of DOL managers to
conduct prompt, effective oversight of complaint files. In addition,
the ability of agencies to monitor the efficiency and effectiveness of
the complaint process is hampered by a lack of visibility and by the
segmentation of responsibility for addressing complaints among several
different agencies. The segmented complaint resolution process means
that the agency officials who handle the complaints at various stages
of the process generally have limited or no visibility over the other
parts of the process for which they are not responsible. This prevents
any one agency from monitoring the length of time it takes for a
servicemember's complaint to be fully addressed, and leads agencies to
focus on output figures for their portion of the complaint process
rather than on overall federal responsiveness to complaints. As a
result, agencies have developed goals that are oriented toward outputs
of their agency's portion of the process rather than toward results
regarding an individual servicemember's complaint. For example, agency
goals address complaint processing times at different stages of the
process, rather than the actual elapsed time servicemembers wait to
have their complaints addressed. To highlight the difference between
agency focuses on processing times and servicemember concerns with
elapsed times, we reviewed complaints that had been closed and later
reopened by VETS investigators. Specifically, we analyzed 52 complaints
that were closed and reopened two or more times. Our analysis revealed
substantial differences between the recorded processing times and the
actual elapsed times for these complaints. The recorded processing
times averaged 103 days. However, from the servicemembers'
perspectives, it took much longer because the servicemembers actually
waited an average of 619 days 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.
We are making four recommendations in this report. First, to better
identify USERRA compliance and employer support trends, we recommend
that DOD include USERRA questions in its periodic surveys of
servicemembers; second, to help educate employers about USERRA, we
recommend that DOD take steps to enforce the requirement for
servicemembers to report their civilian employment information,
maintain the database on this civilian employment information, and
share applicable employer information with DOL, OSC, and other federal
agencies that educate employers about USERRA; third, to increase agency
responsiveness to servicemember complaints, we recommend that DOD, DOL,
DOJ, and OSC explore methods of electronically transferring information
between agencies; fourth, to reduce the administrative burden on VETS
investigators and improve the ability of VETS managers to provide
effective, timely oversight of USERRA complaint processing, we
recommend that the Secretary of Labor develop a plan to reduce agency
reliance on paper files and fully adopt the agency's automated
complaint file system. Further, to encourage results rather than
outputs, Congress should consider designating a single office to
maintain visibility over the entire complaint resolution process.
In written comments on a draft of this report, DOD, DOL, and OSC
generally concurred with our findings and recommendations to their
respective agencies. DOJ reviewed a draft of this report and had no
comments. DOD deferred to DOL, DOJ, and OSC regarding our
recommendation for the agencies to explore methods of electronically
transferring information between agencies. DOL and OSC commented on our
matter for congressional consideration that Congress should consider
designating a single office to maintain visibility over the entire
complaint resolution process. DOL noted that the mandated OSC
demonstration project is ongoing, and therefore, it would be premature
to make any suggestions or recommendations for congressional or
legislative action until the pilot has been completed. DOL did note
that its office is uniquely situated to provide an overview of the
entire complaint resolution process. OSC supported our matter and
stated that OSC has unparalleled experience and expertise in
administering federal sector employment complaints and prosecuting
meritorious workplace violations before the Merit Systems Protection
Board. OSC believes that their office is in the best position to be the
overseer. We believe that the Congress is the best qualified to
determine the identity of the overseer and the timing of this matter
for congressional consideration.
Background:
USERRA Coverage and Protections:
USERRA has extremely broad coverage, provides a wide range of
protections, and applies over long time periods. The discrimination
provisions of the law cover every individual who serves in, plans to
serve in, or has served in the uniformed services of the United States.
The law's reemployment and benefit provisions are applicable to some
active duty military personnel as well as to National Guard and Reserve
members. USERRA applies to public and private employers in the United
States, regardless of size, and includes federal, state, and local
governments, as well as for-profit and not-for profit private sector
firms. It also applies in overseas workplaces that are owned or
controlled by U.S. employers.
Generally, servicemembers are entitled to the reemployment rights and
benefits provided by USERRA if they meet certain conditions. These
include having held a civilian job[Footnote 8] prior to call-up,
serving fewer than 5 years of cumulative military service with respect
to that employer,[Footnote 9] providing their employer with advance
notice of their service requirement when possible, leaving service
under honorable conditions, and reporting back to work or applying for
reemployment in a timely manner. Provided servicemembers meet their
USERRA requirements, they are entitled to:
* prompt reinstatement to the positions they would have held if they
had never left their employment, or to positions of like seniority,
status, and pay;
* health coverage for a designated period of time while absent from
their employers, and immediate reinstatement of health coverage upon
return;
* training, as needed, to requalify for their jobs;
* periods of protection against discharge based on the length of
service; and:
* non-seniority benefits that are available to other employees who are
on leaves of absence.
Figure 1 is a flowchart that shows servicemembers' options for
receiving federal assistance with their USERRA complaints. While the
flowchart shows several different paths for resolving employment
problems, the chart does not show all of the options available to
servicemembers. Some servicemembers have used members of their military
chain-of-command to help them resolve problems with their employers. In
addition, the ESGR is available to provide information and informal
mediation of USERRA-related employment problems. The DOL offers
assistance similar to the ESGR in that it provides information to
employers and employees, and works to informally resolve USERRA-related
employment problems. The DOL also receives formal complaints from
servicemembers under USERRA. Another option that is available to
servicemembers at any time is to hire a private attorney and to file a
complaint against their employer in court (for private employers and
state and local governments) or before the Merit Systems Protection
Board (for federal employers). However, a working group from the
American Bar Association found that many private attorneys are
reluctant to take USERRA complaints because cases are not likely to
result in large judgments or settlements.
Figure 1: Process to Resolve a USERRA Complaint Using Federal
Assistance:
[See PDF for image]
[End of figure]
Federal Agencies' USERRA Roles and Responsibilities:
The responsibility for enforcing and implementing USERRA is complex,
involving several federal agencies. Under USERRA, specific outreach,
investigative, and enforcement roles are assigned to DOD, DOL, DOJ, and
OSC.
Department of Defense:
Most of the people entitled to USERRA rights and benefits earn their
entitlement while serving in the military services. The Secretary of
Defense shares responsibility with DOL for informing servicemembers and
employers of their rights, benefits, and obligations under the act. The
ESGR carries out this responsibility for DOD. The ESGR was established
in 1972 to manage activities that maintain and enhance employers'
support for the reserve components, and it has a goal to inform
servicemembers and their employers of their respective USERRA rights
and responsibilities. The Office of the Under Secretary of Defense
(Personnel and Readiness) develops the policies, plans, and programs
that manage the readiness of both active and reserve forces, and within
that office, the Assistant Secretary of Defense for Reserve Affairs
oversees the activities of the ESGR.
The ESGR has a staff of about 55--18 civilians and 37 military
personnel--at its national headquarters in Arlington,
Virginia.[Footnote 10] However, much of the ESGR's work is done through
its more than 4,000 volunteers who are organized into state
committees.[Footnote 11] These volunteers help to educate both
employers and servicemembers about USERRA, and a specially trained
subgroup of about 800 volunteers serve as impartial ombudsmen who work
to informally mediate USERRA issues that arise between servicemembers
and their employers. While many volunteer ombudsmen are attorneys,
human relations specialists, or have other backgrounds that assist them
in their mediation work, all of the ESGR's ombudsmen are required to
attend a 3-day training course before they handle servicemember
complaints. (App. II contains additional information about the
backgrounds of these volunteer ombudsmen.) Most USERRA-related
complaints come to the ESGR through its toll-free telephone number (1-
800-336-4590), which is answered at the ESGR's Customer Service Center
in Millington, Tennessee. The customer service representatives in
Tennessee screen calls, fill requests for information, and forward
complaints that appear to have merit to volunteer ombudsmen, who are
generally located geographically near the servicemembers. The
complaints are often channeled through state ombudsmen
coordinators.[Footnote 12] The ESGR's volunteer ombudsmen attempt to
resolve pay-related USERRA complaints within 7 days and other USERRA
complaints within 14 days. When ombudsmen cannot resolve servicemember
complaints, they are to notify the servicemembers of the other options
that are available to address complaints. The ombudsmen may then pass
the complaints to the ESGR headquarters through their state ombudsman
coordinators.
Department of Labor:
The Secretary of Labor has responsibility for providing assistance to
servicemembers who claim USERRA rights and benefits.[Footnote 13] This
responsibility is carried out primarily through the efforts of VETS.
VETS is led by an assistant secretary who is supported by headquarters,
regional, and state staff as well as local investigators. When a
servicemember leaves active duty and a USERRA-related complaint
develops against the servicemember's civilian employer, the
servicemember can file a formal complaint at [Hyperlink,
http://www.vets1010.dol.gov], or can file a printed copy of the
complaint form, such as the one included in appendix III, with the
Secretary of Labor. The complaint is then assigned to one of VETS's
approximately 125 investigators, generally an investigator who is
located close to the employer. These VETS investigators examine USERRA
complaints and try to help the servicemembers and employers resolve
their differences. The investigators also typically have a host of
other responsibilities that support veterans' programs but that are not
directly related to USERRA. The law gives DOL subpoena power over
records and individuals to aid in its investigations, but officials
note that subpoenas are used infrequently because the threat alone is
usually enough to gain cooperation. The statute also states that the
Secretary of Labor may use the assistance of volunteers and may request
assistance from other agencies engaged in similar or related
activities. When DOL is unable to resolve servicemember complaints, DOL
informs the servicemembers that they may request to have their
complaints referred. A complaint is referred to DOJ if it involves
state or local governments or private employers or to OSC if it
involves a federal executive agency. Before complaints are sent to DOJ
or OSC, they are reviewed by a VETS regional office, which reviews the
memorandums of referral to ensure that the investigations are thorough
and that the documentation is accurate and sufficient. The referrals
are also reviewed by a DOL regional solicitor's office to assess the
complaints' legal basis. Both offices render opinions on the merits of
the complaints. Even if both offices find that the complaints have no
merit, DOL is required by the act to pass the complaints to DOJ or OSC
if the servicemembers request referrals.
Along with their investigation and mediation responsibilities, VETS
investigators also conduct briefings to educate employers and
servicemembers about USERRA requirements and responsibilities, and they
field service-related employment and reemployment questions that are
directed to their offices. These investigators are required to take
three courses that train them in the basics of the USERRA law, advanced
investigative techniques, and the differences between veterans'
preference issues and USERRA discrimination issues.
Under USERRA, the Secretary of Labor reports USERRA information to
Congress on an annual basis,[Footnote 14] after consulting with the
Attorney General and Special Counsel. The Secretary's report includes
information about the number of complaints reviewed by DOL during the
fiscal year for which the report is filed along with the number of
complaints referred to DOJ or OSC. The annual report should also
address the nature and status of each complaint and should state
"whether there are any apparent patterns of violation." Finally, the
report should include any recommendations for administrative or
legislative action that the Secretary of Labor, the Attorney General,
or Special Counsel consider necessary to effectively implement USERRA.
USERRA also granted DOL authority to issue regulations that implement
USERRA provisions for state and local government and private
employers.[Footnote 15] In its most recent report to Congress,[Footnote
16] the department did not note any apparent patterns of violation. DOL
did note that it had published draft regulations implementing USERRA
for the first time on September 20, 2004, and DOL has completed the
evaluation of comments that were submitted in response to these draft
regulations. DOL has submitted the final regulations to OMB for formal
review prior to publication in the Federal Register, and publication is
expected in the near future.
Department of Justice:
The Attorney General is assigned enforcement responsibilities under
USERRA, but DOJ is not authorized to receive USERRA complaints directly
from servicemembers. It investigates, mediates, and litigates only
private sector or state or local government complaints that it receives
from DOL. The Civil Division in DOJ was responsible for handling USERRA
complaints until September 2004, when DOJ transferred responsibility to
its Civil Rights Division, which handles other types of employment
discrimination complaints not related to military service. The Civil
Division procedures called for the division to review the complaint and
either (1) decline representation and return the complaint to DOL's
regional solicitor's office because the complaint lacked merit or (2)
forward the complaint to the U.S. Attorney's Office for possible
litigation. If the complaint was forwarded, the U.S. Attorney's Office
would assign the complaint to an assistant U.S. attorney who would
review the information in the DOL referral,[Footnote 17] and interview
the servicemember and potential witnesses. The assistant U.S. attorney
then would make a determination on the merits of the complaint. If the
assistant U.S. attorney found that the complaint was meritorious and
the U.S. attorney agreed, the U.S. attorney's Office would represent
the servicemember. In these situations, the assistant U.S. attorney
would contact the employer and try to resolve the matter without
litigation. If that failed, the assistant U.S. attorney would file a
complaint against the employer in federal district court. If the
assistant U.S. attorney found that the complaint was not meritorious
and the U.S. attorney agreed, the complaint would be referred back to
DOL and the servicemember would have the option of seeking their own
legal representation and filing a complaint against the employer in
federal district court. A settlement could be negotiated at any stage
of the process. In July 2005, the Civil Rights Division was still
following these procedures pending sufficient experience with USERRA
complaints to decide if new procedures are necessary.
DOJ's Civil Rights Division attorneys are trained in handling
discrimination complaints because they receive training on Title VII of
the Civil Rights Act of 1964. In addition, according to DOJ officials,
37 attorneys in the Employment Litigation Section received training on
USERRA in March 2005 and also received a collection of reference
documents relevant to USERRA. These attorneys are available to handle
both civil rights and USERRA complaints. There are also 18 professional
and 8 clerical staff who are trained on USERRA matters.
Office of Special Counsel:
Under USERRA, OSC is responsible for enforcing USERRA rights at federal
executive agencies. Prior to February 8, 2005, OSC was not authorized
to receive USERRA complaints directly from servicemembers and had to
wait until DOL referred the complaints. However, under a demonstration
project,[Footnote 18] OSC may now receive USERRA complaints against
federal executive agencies directly from certain
servicemembers.[Footnote 19] OSC recently established a six-person
USERRA unit to investigate, mediate, and, as necessary, litigate USERRA
complaints. Under the traditional procedures, when a servicemember
employed by a federal executive agency requests to have his or her DOL
complaint referred to OSC, DOL's regional solicitor sends a referral to
OSC. While OSC takes the referral information into account, OSC
conducts its own review of the facts and the law and comes to its own
conclusions on the merits of the complaint. If the complaint is
received directly from the servicemember, OSC conducts the
investigation without DOL input. In either case, if OSC is satisfied
that the servicemember is entitled to corrective action, OSC begins
negotiations with the servicemember's federal employer. If an agreement
cannot be reached, OSC may represent the servicemember before the Merit
Systems Protection Board. If the Merit Systems Protection Board rules
against the servicemember, OSC may appeal the decision to the U.S.
Court of Appeals for the Federal Circuit. In instances where OSC finds
that complaints do not have merit, it informs the servicemembers of its
decision not to represent them and informs servicemembers that they
have the right to take their claims to the Merit Systems Protection
Board without OSC representation.
OSC's USERRA unit consists of three investigators, two attorneys, and a
unit chief, who is also an attorney. According to the unit chief, the
members of the USERRA unit spend most of their time on USERRA
complaints but they also handle some other prohibited personnel
practice complaints. The specific USERRA training for the unit consists
primarily of on-the-job and other informal training.
DOD's Reserve Component Members' Employers:
To support the personnel information needs of DOD, DMDC, which reports
to the Under Secretary of Defense for Personnel and Readiness, surveys
the attitudes and opinions of the DOD community on a wide range of
personnel issues. In May 2004,[Footnote 20] DMDC surveyed a random
sample of 55,794 Selected Reserve[Footnote 21] members who had at least
6 months of service and who were below flag rank.[Footnote 22] Figures
2 and 3 show the projected results from survey questions that asked
employed survey respondents about their employers. Figure 2 shows that
about 10 percent of employed Selected Reserve members are self-employed
or work in family businesses. According to the figure, about 29 percent
of Selected Reserve members below flag rank work for federal, state, or
local governments. However, the federal government percentage in this
figure is understated because DMDC's survey did not ask full-time
National Guard and Selected Reserve members and military technicians--
DOD civilian employees who must be members of a National Guard or
Reserve unit as a condition of their employment--the survey question
from which these data are drawn.
Figure 2: Percentages of Selected Reserve Members Surveyed Who Work for
Various Types of Employers:
[See PDF for image]
Note: Percentages add to 101 percent due to rounding. The margins of
error for each category are within +/-2 percent.
[End of figure]
Figure 3 shows that an estimated 45 percent of employed Selected
Reserve members below flag rank are employed by large employers who
have 1,000 or more total employees. The figure also shows that about 13
percent of employed Selected Reserve members work for small employers
who have 9 or fewer total employees.
Figure 3: Percentages of Selected Reserve Members Who Work for
Employers of Various Sizes:
[See PDF for image]
Note: Employer size is based on total employees. The margins of error
for each category are within +/-2 percent.
[End of figure]
GAO's Prior Reports:
We have issued prior reports concerning USERRA and, more generally,
about the need for results-oriented government. Our prior USERRA work
has examined issues pertaining to employer support and enforcement of
USERRA complaints at OSC. Our work on results-oriented government
examined how the federal government could shift toward a more results-
oriented focus.
Employer Support and USERRA:
Since 2002, we have issued two reports related to employer support and
USERRA. In our most recent report,[Footnote 23] we provided information
on OSC's role in enforcing USERRA. The report found that:
* separate OSC and DOL determinations generally agreed on the merits of
servicemember complaints,
* OSC took an average of about 145 days to process the 59 complaints it
received between 1999 and 2003, and:
* OSC had made changes that were designed to expedite the handling of
current USERRA complaints and any influx of new complaints.
In our earlier report,[Footnote 24] we addressed DOD's management of
relations between reservists and their employers. Our report stated the
following.
* DOD had established a database to collect employer information from
reserve component members on a voluntary basis in 2001. However, by May
14, 2002, only about 11,000 servicemembers had entered employer
information into the database.
* DOD could not educate all employers concerning their USERRA rights
and responsibilities because it viewed the Privacy Act as a constraint
that prevented it from requiring reserve component members to provide
civilian employer contact information.
* Ombudsmen were not always available to field servicemember phone
calls.
* The ESGR did not have good data to determine the effectiveness of its
outreach and mediation efforts.
We made a number of recommendations to address these and other findings
in the report. In response to our recommendations, DOD reevaluated its
interpretation of the Privacy Act and issued a requirement that all
Ready Reserve[Footnote 25] members provide contact information for
their civilian employers to their military departments. DOD also began
funneling calls to its volunteer ombudsmen through a central customer
service center where information is logged into a database that is used
to measure the ESGR's outreach and mediation efforts.
Results-Oriented Government:
We have issued a number of reports that address the need for federal
agencies to manage for results. In 2004, we issued a report[Footnote
26] that examined, among other things, the challenges agencies face in
using performance information in management decisions and how the
federal government can continue to shift toward a more results-oriented
focus. The report noted that serious weaknesses persist, such as how
agencies are coordinating with other entities to address common
challenges and achieve common objectives. Moreover, mission
fragmentation and overlap contribute to difficulties in addressing
crosscutting issues, especially when those issues require a national
focus. Other barriers to interagency cooperation include conflicting
agency missions, jurisdiction issues, and incompatible procedures,
data, and processes. These issues are particularly important in the
context of USERRA implementation and enforcement. Since USERRA
provisions are administered by four distinct agencies, coordination is
imperative to successfully implement this law in the context of results-
oriented government.
Agencies' Available Data Provides Limited Insight in Overall USERRA
Compliance and Employer Support:
DOL, DOJ, OSC, and DOD have formal and informal USERRA complaint data,
and some employer support figures. DOL's formal complaint numbers show
a possible relationship with the level of reserve component usage and
the number of complaints. By design, DOJ and OSC formal complaint
numbers are small, and may not provide a fully accurate picture of
USERRA compliance or employer support. DOD data indicate that some
employers are exceeding USERRA requirements; however, these data have
limitations. DOD has only 1 full year of informal complaint data, so it
will be several years before it has data that can identify any
meaningful trends. Furthermore, data from a DOD survey indicate that
most servicemembers do not seek assistance for their USERRA problems,
which indicates that complaint data alone cannot fully explain USERRA
compliance or employer support.
DOL's Formal Complaint Numbers:
Formal complaint numbers from DOL show a possible relationship with
reserve component usage and the passage of USERRA. Table 1 contains
DOL's formal complaint numbers and shows that DOL's formal complaint
numbers rose significantly in fiscal year 1991 and remained high in
fiscal year 1992. This increase followed DOD's activation[Footnote 27]
of almost 270,000 reserve component members for Operations Desert
Shield and Desert Storm. The table also shows an increase in complaints
between fiscal years 2001 and 2004. This increase followed the
activation of more than 300,000 reserve component members for
Operations Noble Eagle, Enduring Freedom, and Iraqi Freedom. DOL's
formal complaint data also show that complaints were generally lower in
the years following USERRA's passage in 1994 than in the years prior to
its passage. Table 1 shows that between fiscal years 1989 and 1994,
DOL's annual formal complaint figures ranged from 1,208 to 2,537 but
between fiscal years 1995 and 2004 the formal complaints were lower,
ranging from 895 to 1,465. Finally, if complaints for the fourth
quarter of fiscal year 2005 are consistent with the first three
quarters, fiscal year 2005 complaint numbers could fall back to between
the fiscal year 2002 and 2003 levels.[Footnote 28] However, two recent
changes could affect the number of complaints filed with DOL. First, a
demonstration project now allows OSC to receive complaints directly
from certain servicemembers instead of having the complaints referred
to OSC by DOL. Second, DOL implemented an electronic (Form 1010)
complaint form that allows servicemembers to file complaints directly
from the DOL Web site rather than mailing or hand-delivering complaint
forms to their local VETS offices.
Table 1: Formal Complaints Opened by the Department of Labor, Fiscal
Years 1989 through 2004:
Fiscal year: 1989;
Number of complaints opened: 1,370.
Fiscal year: 1990;
Number of complaints opened: 1,534.
Fiscal year: 1991;
Number of complaints opened: 2,537.
Fiscal year: 1992;
Number of complaints opened: 2,332.
Fiscal year: 1993;
Number of complaints opened: 1,442.
Fiscal year: 1994;
Number of complaints opened: 1,208.
Fiscal year: 1995;
Number of complaints opened: 1,387.
Fiscal year: 1996;
Number of complaints opened: 1,270.
Fiscal year: 1997;
Number of complaints opened: 1,245.
Fiscal year: 1998;
Number of complaints opened: 1,051.
Fiscal year: 1999;
Number of complaints opened: 1,029.
Fiscal year: 2000;
Number of complaints opened: 929.
Fiscal year: 2001;
Number of complaints opened: 895.
Fiscal year: 2002;
Number of complaints opened: 1,195.
Fiscal year: 2003;
Number of complaints opened: 1,315.
Fiscal year: 2004;
Number of complaints opened: 1,465.
Total;
Number of complaints opened: 22,204.
Average;
Number of complaints opened: 1,388.
Source: GAO analysis of DOL data.
[End of table]
Relatively few formal complaints reach DOJ and OSC each year since the
formal process begins at DOL and complaints may be resolved there and
not forwarded to DOJ or OSC. Thus, the number of formal complaint data
from these two agencies is small and cannot be used to fully explain
the relationship between complaints and USERRA compliance or employer
support.[Footnote 29] Between fiscal years 1995 and 2004, formal
complaints at DOJ ranged from 37 to 59 complaints each year. OSC's
annual formal complaint numbers ranged from 1 to 21 over the same
period.[Footnote 30]
DOD Data Show Some Employers Are Exceeding USERRA Requirements:
Data from DMDC and the ESGR show that some employers are exceeding
USERRA requirements. DMDC's May 2004 survey found that many employers
of Selected Reserve members had provided these members with extra
benefits beyond those required by USERRA. Projections, which apply to
more than 120,000 Selected Reserve members who were employed and had
been activated in the 24 months prior to the survey,[Footnote 31] show
that more than 26 percent of these members have employers who pay them
salaries or differential pay[Footnote 32] for at least part of the time
they are away from their civilian jobs performing military duties.
Projections also show that more than 32 percent receive medical
benefits that are not required by USERRA, and more than 30 percent
receive other benefits above and beyond those required by USERRA. While
these data indicate that some employers are exceeding USERRA, the DMDC
data were collected only in 2004 and therefore cannot establish whether
overall employer support is improving, steady, or declining.
The ESGR data show increases in both employer awards and statements of
support, but these increasing figures cover a relatively small group of
employers. Servicemembers are increasingly nominating their employers
for the ESGR's various employer support awards. "Patriot Award"
employers may be recognized for simply complying with USERRA. However,
higher level awards typically require support above and beyond USERRA
requirements. According to the ESGR officials, award nominations have
increased over the years, and in fiscal year 2004 servicemembers
nominated their employers for more than 20,000 awards. The ESGR's
"Above and Beyond" award is one of the higher level awards. It is
awarded annually by the ESGR's state committees and recognizes
employers who have exceeded USERRA requirements. Many employers have
received this award over the years, and in fiscal year 2004 the ESGR's
state committees recognized 1,058 employers with "Above and Beyond"
awards.[Footnote 33] In addition to increases in awards, the ESGR
figures show increases in the numbers of employers signing the ESGR
"statements of support." In signing statements of support, employers
acknowledge that they will comply with USERRA. Between 2000 and 2002,
575 employers signed statements of support. In 2003, 1,228 employers
signed the statements, and by July 26, 2005, the ESGR records showed
that almost 6,000 employers had signed statements of support. The ESGR
continues to solicit statements of support, but is now focusing its
outreach efforts on a "5-star" program, which encourages employers to
move beyond simple USERRA compliance to increasingly higher levels of
employer support. (See app. IV for additional details.) Despite
encouraging increases in the ESGR's employer support figures, the
thousands of employers who have received awards or signed statements of
support do not represent all the employers of the millions of
servicemembers covered by USERRA.
Informal Complaint Data:
The absence of informal complaint data prevents linking the informal
complaint numbers and the total number of complaints. It will be
several years before the ESGR can identify any meaningful trends in
informal complaint numbers because the ESGR has only 1 full year of
informal complaint data in its central database. Until October 2003,
the ESGR had a manual complaint tracking system that relied on monthly
reports from its state committees to its national headquarters. Our
2002 report[Footnote 34]reviewed the ESGR's effectiveness and found
that the ESGR did not have an accurate count of the complaints handled
by its ombudsmen. We found that reporting by ombudsmen had been
sporadic and some states had gone an entire year without reporting any
complaints at all. In 2003, the ESGR began funneling calls to its
ombudsmen through a central call center where the complaint information
is logged into a centralized database before assigning the complaint to
an ombudsman. As a result of the changed procedures, the ESGR is now
able to track the complaints handled by each of its nearly 800
ombudsmen. After they have been assigned a complaint, ombudsmen can
access, review, update, and close assigned complaints, but they cannot
create new complaint files in the database. Although the database now
captures the informal complaints brought to the ESGR, at the time of
our review the ESGR had only collected 1 full year of complaint data--
fiscal year 2004. Because informal complaint figures have not been
captured annually, agencies cannot know whether informal complaints
have been increasing, decreasing, or remaining steady.
Available data suggest that the number of informal complaints handled
by the ESGR is large enough that if annual data were available, the
volume of informal complaints could overshadow that of DOL's formal
complaint data. We conducted a survey to collect information about the
workload, backgrounds, and training of the ESGR's ombudsmen because the
ESGR lacked complete and accurate ombudsmen data. We surveyed all of
the 831 ombudsmen that the ESGR headquarters officials told us were
available to handle complaints as of April 6, 2005. Of the 831
ombudsmen, 618 responded to our survey but 52 said they were not
available to handle complaints as of April 6, 2005. (See app. V for a
complete list of our survey questions and results.) Our survey asked
the ombudsmen how many complaints they had handled and resolved since
becoming ombudsmen.[Footnote 35] Survey responses showed that the
ombudsmen who were available to handle complaints on April 6, 2005, had
handled 37,684 complaints. Although this figure does not cover a
specific time period, it far exceeds the 22,204 formal complaints
handled by DOL between 1989 and 2004. DMDC survey data also suggest
that informal complaint numbers could overshadow formal complaint
numbers. Projections from DMDC's May 2004 survey show that between 54
and 78 percent of Selected Reserve members with USERRA problems seek
assistance from the ESGR but only between 16 and 36 percent seek
assistance from VETS. Cross tabulations of survey responses further
showed that servicemembers who had received USERRA briefings were more
likely to seek assistance from the ESGR than those who had never been
briefed. Conversely, the cross tabulations showed that servicemembers
who had received USERRA briefings were less likely to turn to VETS for
assistance than those who had never been briefed. If this pattern
continues, as more servicemembers are briefed about their USERRA
rights, servicemembers may file more informal complaints and fewer
formal complaints.
Agency Complaint Numbers Do Not Appear to Capture Most USERRA Problems:
DMDC survey data indicate that formal and informal complaint numbers do
not capture most USERRA problems experienced by servicemembers because
most servicemembers do not seek assistance for their USERRA problems.
In the spring of 2004, DMDC surveyed a random sample of 55,794 Selected
Reserve members and received responses from more than 19,000 of these
members. Survey respondents were asked about their civilian work
experiences, reserve component programs and affiliations, and
activations, and were asked a series of questions related to USERRA if
they:
* were not full-time National Guard or Reserve members, or military
technicians;
* were not on active duty when they completed the survey;
* were employed during the week prior to the time when they completed
the survey, or during the week prior to their activation; and:
* had been activated during the 24 months prior to the time when they
completed the survey.
The survey respondents who met these criteria were first asked if,
despite their USERRA protection, they had experienced any of a series
of USERRA problems. The survey projections show that between 4 and 8
percent of the 119,761 Selected Reserve members who met the criteria
above did not receive prompt reemployment upon their return from
military service; between 9 and 14 percent experienced a loss of
seniority, seniority-related pay, or seniority-related benefits; and
between 5 and 9 percent did not receive immediate reinstatement of
employer-provided health insurance. The survey yielded similar results
for other USERRA problems listed in the survey question.[Footnote 36]
The survey respondents who experienced one or more problems were then
asked if they had sought assistance for their problems. Survey results
show that only between 18 and 28 percent of the 42,119 Selected Reserve
members who had USERRA problems sought assistance for the problems.
Therefore, at least 72 percent of the Selected Reserve members who had
experienced USERRA problems never filed a complaint, either formal or
informal, to seek assistance in resolving their problems. In a separate
question, all of the Selected Reserve members who had responded to the
survey were asked if they had ever filed a formal USERRA complaint with
DOL/VETS. The survey results show that less than 2 percent of the more
than 776,381 Selected Reserve members in the survey population have
ever filed a formal USERRA complaint with DOL/VETS. The large
percentage of servicemembers who fail to file either formal or informal
complaints indicate that complaint data alone may be insufficient to
fully explain USERRA compliance or employer support. Without periodic
surveys of employment issues, such as DMDC's May 2004 survey, DOD will
continue to have difficulties determining trends in USERRA compliance
and employer support.
Agencies Have Conducted Educational Outreach, but Efficiency and
Effectiveness of Outreach Has Been Hindered by Lack of Employer
Information:
Agencies have taken actions to educate hundreds of thousands of
servicemembers and employers about USERRA, but the efficiency and
effectiveness of agency outreach actions are hindered by a lack of
employer information. DOD, DOL, and OSC have conducted educational
outreach using a variety of means, such as individual and group
briefings, Web sites, and telephone information lines. However,
agencies have been restricted in their ability to efficiently and
effectively target educational outreach actions to employers who
actually have servicemember employees because only limited employer
information is available.
Agencies Have Used a Variety of Means to Conduct Outreach:
DOD, DOL, and OSC have used a variety of means to educate
servicemembers and employers about USERRA, such as individual and group
briefings, Web sites, and telephone information lines. According to
agency officials and employers, one of the primary reasons employers
violate USERRA is their lack of knowledge about the law's
requirements.[Footnote 37] USERRA assigns DOD and DOL responsibilities
for informing servicemembers and their employers about their USERRA
rights, benefits, and obligations, but it gives the agencies
flexibility to determine the appropriate means for conducting this
outreach.[Footnote 38] DOD and DOL have used this flexibility to
conduct educational outreach through a wide variety of means. Group
briefings are one of the primary means these agencies use to educate
employers and servicemembers about the law. However, they also have
USERRA information on their agency Web sites, and headquarters and
field representatives respond to individual requests for information
through toll-free phone lines.[Footnote 39] Between September 11, 2001,
and June 30, 2005, VETS staff responded to more than 34,000 requests
for USERRA information[Footnote 40] and conducted briefings for more
than 247,000 people. DOL also made a USERRA poster available for
employers to post in their workplaces as a means of complying with the
requirements set forth in the Veterans Benefits Improvement Act, which
was enacted in December 2004. The poster is on the VETS Web site and is
included as appendix VI of this report. The poster does not include any
information about OSC's role in providing assistance on USERRA
problems, even though OSC told us that they have requested that DOL
include information about OSC's role. DOD also conducts a wide range of
outreach actions. Some activities, such as the ESGR statements of
support and awards, were discussed earlier in this report, and appendix
IV contains information on many of DOD's other outreach programs.
Although not required by USERRA, OSC also has taken actions to educate
federal employers about their responsibilities under the law. OSC
officials have conducted USERRA briefings for executive branch
employees and managers and other groups. For example, they have
conducted briefings at recent federal dispute resolution conferences
and for the District of Columbia Bar Association. OSC's Web site also
contains information about USERRA, contact information for complaints
or questions, and information about OSC's ongoing demonstration
project.[Footnote 41]
Efficiency and Effectiveness of Employer Outreach Efforts Are Hindered
by Lack of Employer Information:
Agencies have been restricted in their ability to efficiently and
effectively target educational outreach actions to employers who
actually have servicemember employees, because only limited employer
information is available. To accomplish its employer outreach
requirements, DOD established a database and a policy requiring
collection of these data. However, information collection efforts are
incomplete, which impedes agencies' ability to communicate with
employers who have servicemember employees.
DOD Has a Policy and Means for Collecting Essential Employer
Information:
In 2001, DOD established a database to voluntarily collect employer
information from reserve component members, but few servicemembers
submitted the data, and following a recommendation in our 2002
report,[Footnote 42] DOD made the submission of employer information
mandatory. On March 21, 2003, the Under Secretary of Defense for
Personnel and Readiness signed a memorandum mandating the collection of
employer information. The memorandum directed the military departments
to immediately implement a civilian employment information program for
National Guard and Reserve members subject to involuntary recall to
active duty. This memorandum required that all members of the reserve
components provide employment-related information upon assignment to
the Ready Reserve[Footnote 43] and at other times determined by their
respective military departments. According to the Under Secretary's
memorandum, one of the purposes for collecting the employer information
is to "utilize (the information) on a recurring basis to assist the
Department in accomplishing its employer outreach purposes under 38
U.S.C. 4333." The information required by the memorandum included
employment status, employer's name, employer's complete mailing
address, member's civilian job title, and the servicemember's length of
experience in their civilian occupation. The memorandum indicated
members who refuse to provide information or who provide false
information may be subject to administrative action or punishment for
dereliction of duty under the Uniform Code of Military Justice.
The memorandum assigned unit commanders the responsibility for ensuring
that their Selected Reserve members were familiar with the memorandum's
requirements and provided adequate time to comply with the requirements
during training periods. The military departments were assigned
responsibility for ensuring the compliance of other Ready Reserve
members. According to DOD officials, reserve component members with a
computer and Internet access can enter their employer information into
DOD's database from home or they can enter the information at their
units during normal training periods. The employer database is linked
to the defense enrollment eligibility reporting system. Therefore, if
reserve component members check on their dependents' eligibility for
health care or enter their dependents into the system, they can also
take the opportunity to enter or update their employer information.
Collection of Employer Information Is Improving, but Incomplete Data
Impede the Efficiency and Effectiveness of Agencies' Outreach:
The collection of employer information is improving but, more than 2
years after the Under Secretary called for the immediate implementation
of a civilian employment information program, collection efforts are
still incomplete, which impedes the efficiency and effectiveness of
agencies' outreach efforts. As of August 2005, about 40 percent of
DOD's Ready Reserve members had not entered their civilian employer
information into DOD's database. The percentage of Selected Reserve
members who have complied with the requirement to enter their
employment information into the database has risen substantially over
the past year--from 13 percent in October 2004, to 58 percent in April
2005, to 73 percent in August 2005, when we ended our review. Figure 4
shows the compliance rates for Selected Reserve members in each of the
seven reserve components, as well as the compliance rates for
Individual Ready Reserve and Inactive National Guard members in the six
components where they serve. (The Air National Guard does not have any
Inactive National Guard or Individual Ready Reserve members.) Figure 4
illustrates that compliance rates vary by reserve component, supporting
the assertion of DOD officials that compliance rates are tied to
command attention and enforcement. Compliance rates are substantially
lower for Inactive National Guard and Individual Ready Reserve members
than they are for Selected Reserve members, further reflecting the lack
of enforcement of the policy. Responsible DOD officials said that as
far as they knew, the military departments had not enforced this policy
by subjecting any servicemembers to punishment or administrative action
for failing to comply with the policy.
Figure 4: Percentages of Ready Reserve Members Who Had Supplied
Civilian Employment Information as of August 10, 2005:
[See PDF for image]
[End of figure]
Since Individual Ready Reserve members do not participate in any
regular training and have been recalled to active duty less frequently
than Selected Reserve members, the employers of Individual Ready
Reserve members may be unaware that their employees have a military
obligation and that they, as employers of servicemembers, have USERRA
obligations. Therefore, outreach to these employers may be even more
important than outreach to employers of Selected Reserve members.
Between September 11, 2001, and June 30, 2005, more than 9,500
Individual Ready Reserve members had been recalled to active duty, with
more than 4,500 coming from the Army Reserve and more than 4,200 from
the Marine Corps Reserve.[Footnote 44] Despite these activations,
figure 4 shows that only 10 percent of the Individual Ready Reserve
members in the Army Reserve and only 16 percent in the Marine Corps
Reserve had entered their employer information into DOD's database.
In the absence of full compliance with the requirement for
servicemembers to provide civilian employer information, agencies'
abilities to conduct outreach to educate employers about USERRA has
been hindered. Agencies have conducted many general outreach efforts
but have been restricted in their ability to efficiently and
effectively target outreach to employers who actually have
servicemember employees. With limited employer data available, DOD is
unable to share this information with the other federal agencies that
perform employer outreach so that agencies can coordinate their
activities to reach all the employers of servicemembers who are covered
by USERRA. Without complete information about the full expanse of
servicemember employers, the federal agencies conducting outreach
efforts have no assurance that they have informed all servicemember
employers about USERRA rights, benefits, and obligations. Therefore,
agency outreach efforts are likely to be reaching some employers who do
not have any servicemember employees while neglecting other employers
who do have servicemember employees.
Agencies' Ability to Efficiently and Effectively Address Complaints
Hampered by Incompatible Data Systems, Reliance on Paper Files, and
Lack of Visibility:
A segmented process with incompatible data systems hampers agencies'
abilities to efficiently and effectively address servicemembers'
complaints and report results as intended by USERRA. The speed with
which servicemembers' USERRA complaints are addressed often hinges on
efficient and effective information sharing among the agencies involved
in the complaint resolution process; however, DOD, DOL, DOJ, and OSC
use incompatible data systems to track USERRA complaints. This impedes
information sharing and can lead to duplicative efforts that slow
processing times. In addition, the use of paper files to transfer
complaints among offices limits the agencies' abilities to efficiently
process complaints and increases complaint processing times.
Furthermore, agencies' abilities to monitor the extent to which
complaints are efficiently and effectively addressed are hampered by a
lack of visibility and by the segmentation of responsibilities for
addressing complaints among several different agencies.
Incompatible Data Systems Hamper Ability to Address Complaints:
The ability of DOD, DOL, DOJ, and OSC to effectively and efficiently
address USERRA complaints has been hampered by the use of five
different and incompatible automated systems to capture data about
USERRA complaints. DOD, OSC, and DOJ[Footnote 45] each operate one
system and DOL operates two systems, one for its VETS offices and
another for its solicitors' offices. Because the systems were created
for different purposes, they do not capture the same data. The ESGR and
VETS systems are complaint file systems that can contain extensive
ombudsmen or investigator notes and details about individual
complaints. The other three systems are used primarily for tracking
purposes and do not capture extensive details about individual cases.
Even when data fields in the different systems bear similar names, the
information contained in the fields may not match. For example, in
DOJ's Interactive Case Management System, the date closed means that
final action has taken place on the complaint. In contrast, in the VETS
system, the closed date can mean several different things, such as the
date the investigator resolved the complaint, the date the
servicemember requested to have his or her complaint referred to DOJ or
OSC, or the date the complaint was withdrawn by the servicemember.
During the course of our review, we attempted to compare complaint data
from the VETS system to data from the DOL solicitor, DOJ, and OSC
systems. Because the systems captured data differently, we were not
able to perfectly match the data during any of these attempts. In some
cases we were able to match dates from the different systems, in other
cases dates differed, and in still other cases we could not even
identify the matching complaint files. Because DOL could not identify
complaints that had been handled by the ESGR, we did not attempt to
match DOL and the ESGR files.[Footnote 46]
The inability of ombudsmen, investigators, and other officials to share
complaint information by electronically transferring information among
their systems or accessing each other's systems may result in duplicate
efforts to collect identical information that is needed to investigate
and process USERRA complaints. For example, during informal mediation
efforts, DOD's approximately 800 ombudsmen may gather pertinent
information and documentation that concerns servicemember eligibility
for USERRA coverage; civilian supervisors; employer policies and
organizational structures, including information about who makes
employment decisions; circumstances surrounding the alleged USERRA
violations; and witness statements. However, if ombudsmen efforts do
not resolve the complaints and the servicemembers elect to file formal
DOL complaints, the ESGR officials cannot transfer information from
their database directly to DOL's database, and DOL investigators do not
have access to the ESGR's database. As a result of this inability to
share information, VETS investigators sometimes start their
investigations with nothing more than the basic information included on
the formal complaint form, and they later contact servicemembers and
employer representatives to request the exact same information that was
previously provided to the ESGR ombudsmen. These duplicative efforts
slow complaint processing times, increase the times that servicemembers
must wait to have their complaints fully addressed, and may frustrate
servicemembers or employers. Likewise, DOL cannot transfer information
from the VETS database to DOJ, OSC, or even to DOL's solicitors'
offices, and people in these other offices do not have access to the
VETS database. As a result, officials in these other offices may
contact the servicemember or employer and again request information
that had been previously provided to the ESGR or VETS.
Reliance on Paper Files Limits Ability to Efficiently Address and
Oversee Complaints:
As complaints are referred from one office to another, agencies are
unable to efficiently process complaints because they are forced to
create, maintain, copy, and mail paper files due to the incompatible
data systems. For example, when a servicemember asks a VETS
investigator to refer his or her complaint to DOJ or OSC, the
investigator cannot electronically transfer the complaint information
to the requisite offices. Instead, the investigator prepares and mails
a paper complaint file to a VETS regional office where the file is
reviewed, added to, and then mailed or hand carried to a DOL
solicitor's office. The solicitor's office then reviews the file, adds
a legal opinion concerning the merits of the complaint, and mails the
file to OSC or DOJ. Because VETS investigators cannot electronically
transfer information when they refer complaints, they face the
administrative burden of maintaining both paper and electronic
complaint files that contain much of the same information.
This reliance on paper files results in increased complaint processing
times and can limit managers' abilities to provide effective and timely
oversight. When complaint numbers are large, managers can exercise more
efficient and effective oversight of electronic complaint files that
are stored in automated systems with query capabilities than of
geographically dispersed paper complaint files. Of the four federal
agencies we reviewed, only the agencies that deal with large numbers of
complaint files--DOD and DOL--had electronic complaint files that were
stored in automated systems with query capabilities that facilitate
oversight. However, DOL still considers its paper complaint files its
official records, and the VETS operations manual outlines management
oversight and internal control procedures that focus on reviews of the
investigators' paper files. Because the paper files are located in VETS
offices in all 50 states, the District of Columbia, and Puerto Rico,
paper file reviews take longer than electronic file reviews, and
managers can lose visibility of paper case files. For example, during
our visits to two regional VETS offices, we judgmentally selected 64
complaints and asked to review the paper complaint files to compare the
data in those files to information in the VETS automated system.
Officials located 60[Footnote 47] of the 64 paper files we requested,
but 8 weeks after our visit to one office, officials were still unable
to locate the other 4 files and concluded that the files had been
misplaced or lost.[Footnote 48] In addition, our review of data from
the VETS automated database identified a number of issues that
warranted management attention. However, the VETS reviews of sample
paper files had not addressed the full scope of these problems in a
timely manner. For example, we were able to quickly identify more than
430 complaints that had been closed and then reopened, and we were also
able to identify that a large portion of these reopened cases occurred
in a single region, many with a single investigator.[Footnote 49] If
VETS oversight procedures had focused on electronic file review rather
than paper file review, corrective action could have been taken sooner
on cases that were improperly closed.[Footnote 50]
Segmented Responsibilities and Lack of Visibility Impedes Ability to
Monitor and Report the Extent to Which Complaints Are Efficiently and
Effectively Addressed:
The ability of agencies to monitor the efficiency and effectiveness of
the complaint process is hampered by a lack of visibility and by the
segmentation of responsibility for addressing complaints among several
different agencies. From the time informal complaints are filed with
the ESGR through the final resolution of formal complaints at DOL, DOJ,
or OSC, no one has visibility over the entire process. The segmented
complaint resolution process means that the agency officials who handle
the complaint at various stages of the process generally have limited
or no visibility over the other parts of the process for which they are
not responsible. This prevents any one agency from monitoring the
length of time it takes for a servicemember's complaint to be fully
addressed, and leads agencies to focus on output figures for their
portion of the complaint process rather than on overall federal
responsiveness to complaints. As a result, agencies have developed
goals that are oriented toward outputs of their agency's portion of the
process rather than toward results for an individual servicemember's
complaint. For example, agency goals address complaint processing times
at different stages of the process,[Footnote 51] but agencies do not
measure a result of primary concern to servicemembers--the elapsed time
between the bringing of a complaint to a federal agency and the
complaint's final resolution. Due to the incompatibility of agency
systems and the lack of visibility across agencies, we were not able to
track the entire elapsed time that servicemembers wait to have their
complaints fully addressed. However, the VETS database attempts to
capture processing times from the time a servicemember files a formal
complaint until the time the complaint is finally resolved by VETS,
DOL's solicitor's office, DOJ, or OSC.[Footnote 52] To highlight the
difference between agency focuses on processing times and servicemember
concerns with elapsed times, we reviewed complaints that had been
closed and later reopened by VETS investigators.[Footnote 53] Between
October 1, 1996, and June 30, 2005, servicemembers filed 10,061 formal
complaints with DOL. More than 430 of these complaints were closed and
later reopened, and 52 of the 430 complaints were closed and reopened
two or more times. For example, one investigator opened a complaint
file on September 30, 2001, and then closed and reopened the complaint
six times before finally referring the complaint to the VETS regional
office on September 9, 2002. We analyzed the processing times and
elapsed times for the 52 complaints that had been closed and reopened
two or more times and found substantial differences between the
figures. DOL's system assigned separate complaint numbers to the 52
complaints each time the complaint was opened or reopened.[Footnote 54]
As a result, the system recorded the average processing time as 103
days. However, from the servicemembers' perspectives, it took much
longer for DOL, DOJ, and OSC to address their complaints.[Footnote 55]
The servicemembers who filed the 52 complaints actually waited an
average of 619 days 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 56] Because agency officials do not have
visibility over the entire complaint resolution process and no one has
information about the time it takes federal agencies to fully address
servicemember complaints, the Secretary of Labor, Attorney General, and
Special Counsel cannot evaluate the full range of administrative or
legislative actions that may be necessary to effectively implement
USERRA, and the Secretary of Labor's annual report to Congress cannot
be as accurate and complete as required.[Footnote 57]
Conclusions:
Informal and formal complaint data from the agencies responsible for
enforcing and implementing USERRA do not support the analysis needed to
determine if employer compliance with USERRA and support for the act's
purpose has improved since passage of the act in 1994. The responsible
agencies collect data and some insight may be gained from DOL's formal
complaint numbers. However, the numbers from DOJ and OSC are small and
cannot be used to fully explain the relationship between complaints and
USERRA compliance or employer support, and DOD's data collection effort
is so new that meaningful trends cannot yet be identified using
informal complaint data. Complaint data alone may not accurately
reflect the problems servicemembers are experiencing transitioning
between their federal service and civilian employment. The vast
majority of surveyed National Guard and Reserve members who experienced
USERRA-related problems did not seek assistance for their problems. The
survey data do not lend themselves to the analysis needed to determine
if the problems were resolved to the servicemember's satisfaction. DOD
periodically conducts these surveys to identify issues that need to be
addressed or monitored. However, questions on the surveys vary from
year to year and have not always included those pertaining to USERRA
compliance and employer support. Periodic, projectable surveys of the
servicemembers who are covered by USERRA could provide DOD, DOL, DOJ,
and OSC with a means to determine whether or not USERRA compliance and
employer support is improving and thus, USERRA's purpose--to minimize
employment disadvantages that can result from service in the uniformed
service--is being achieved.
Employer violation of USERRA is often attributed to employers' lack of
knowledge about the law's requirements. Having a means to identify the
civilian employers of servicemembers who are covered by USERRA is
essential to effectively and efficiently target the agencies'
educational outreach efforts. DOD has made progress establishing a
civilian employer database. However, DOD has not taken steps to enforce
its requirement for National Guard and Reserve members to enter and
maintain their civilian employer data. Until complete employer
information is obtained, agency outreach efforts are likely to be
reaching some employers who do not have any servicemember employees,
while neglecting other employers who do have servicemember employees.
Currently, DOD's ESGR, DOL's VETS and solicitors' offices, DOJ, and OSC
all operate their own automated systems for tracking USERRA complaints.
Officials from each agency have access to their own system but they
cannot access complaint information in the automated systems of the
other agencies, and complaint data cannot be electronically transferred
from one system to another. As a result, officials from different
agencies sometimes spend time collecting information that has already
been provided to another agency. This slows the complaint resolution
process. In addition, because data systems are incompatible, formal
referrals from VETS investigators to DOJ or OSC must be accompanied by
a paper file, which is first routed through a VETS regional office and
a DOL solicitor's office. The creation, maintenance, and transfer of
these paper files add to complaint processing times and the time
servicemembers wait to have their complaints addressed. As long as
agency systems remain segmented and incompatible and referral
information is passed through the mail, complaints will continue to be
processed inefficiently.
VETS investigators are geographically dispersed across the country and
they maintain both paper and electronic USERRA complaint files.
Managers with the requisite level of authority can have virtually
instant access to every electronic complaint file from every
investigator across the country. However, DOL considers its paper
complaint files its official records. As a result, the VETS operating
procedures and internal controls are geared toward the review of the
paper complaint files. These paper reviews are time consuming. In
addition, paper files can be misplaced or lost when they are moved from
office to office. Until VETS switches to electronic files,
investigators will continue the inefficient practice of maintaining
duplicate records and managers will be limited in their ability to
provide timely oversight and effective corrective actions for any
problems that arise.
The responsibility for enforcing and implementing USERRA is complex,
involving several federal agencies. A single complaint can start at DOD
and flow through three different DOL offices before finally being
resolved at DOJ or OSC. The segmented complaint resolution process
means that the agency officials who handle the complaint at various
stages of the process generally have limited or no visibility over the
other parts of the process for which they are not responsible. As a
result, agency officials have not addressed complaint processing issues
that cut across federal agencies or set outcome-oriented goals.
Instead, agencies have focused their goals on outputs from their
particular portions of the complaint process rather than focusing on
overall federal responsiveness to USERRA complaints. Meanwhile, the
servicemember knows how much time is passing since the initial
complaint was filed. Under USERRA, specific outreach, investigative,
and enforcement roles are assigned to DOD, DOL, DOJ, and OSC. However,
no agency has visibility over the entire complaint process. Therefore,
it is difficult for the responsible agencies to achieve their common
goal-to minimize the employment disadvantages that can result from
service in the uniformed service, and the time servicemembers wait to
have their complaints fully addressed-which is of great importance to
servicemembers. Furthermore, the Secretary of Labor's annual reports
will not provide Congress with a complete and accurate picture of
USERRA violation patterns or the legislative actions that may be
necessary to effectively implement the act.
Recommendations for Executive Action:
To gauge the effectiveness of federal actions to support USERRA by
identifying trends in USERRA compliance and employer support, we
recommend 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 servicemember employers provide support beyond
that required by the law.
To more efficiently and effectively educate employers about USERRA
through coordinated outreach efforts, which target employers with
servicemember employees, we recommend that the Secretary of Defense
take the following two actions:
* Direct the service secretaries to take steps to enforce the
requirement for servicemembers to report their civilian employment
information and develop a plan to maintain current civilian employment
information.
* Direct the Assistant Secretary of Defense for Reserve Affairs to
share applicable employer information from DOD's employer database with
DOL, OSC, and other federal agencies that educate employers about
USERRA, consistent with the Privacy Act.
To increase agency responsiveness to servicemember USERRA complaints,
we recommend that the Secretary of Defense, the Secretary of Labor, the
Attorney General, and the Special Counsel develop procedures or systems
to enable the electronic transfer of complaint information between
offices.
To reduce the administrative burden on VETS investigators and improve
the ability of VETS managers to provide effective, timely oversight of
USERRA complaint processing, we recommend that the Secretary of Labor
direct the Assistant Secretary for Veterans' Employment and Training to
develop a plan to reduce agency reliance on paper files and fully adopt
the agency's automated complaint file system.
Matter for Congressional Consideration:
To encourage agencies to focus on results rather than outputs, to
improve federal responsiveness to servicemember complaints that are
referred from one agency to another, and to improve the completeness
and accuracy of the annual USERRA reports to Congress, 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. For example, the office or individual would
track and report the actual time it takes for federal agencies to fully
address servicemember USERRA complaints.
Agencies Comments and Our Evaluation:
In written comments on a draft of this report, DOD, DOL, and OSC
generally concurred with our findings and recommendations to their
respective agencies. DOJ reviewed a draft of this report and had no
comments on this report. DOD deferred to DOL, DOJ, and OSC regarding
our recommendation for the agencies to develop procedures or systems to
enable the electronic transfer of complaint information between
agencies. DOL and OSC commented on our matter for congressional
consideration that Congress should consider designating a single office
to maintain visibility over the entire conflict resolution process.
In DOD's written comments, the department concurred with our
recommendation for the Secretary of Defense to include questions on
servicemembers' employment issues in DOD's continuing Status of Forces
surveys that would address (1) the extent to which servicemembers
experience USERRA-related problems; (2) from whom the servicemembers
sought assistance if they experienced such problems; (3) if they did
not seek assistance, why not; and (4) the extent to which the
servicemembers' employers provide support beyond that required by law.
DOD stated that the department's May 2004 Status of Forces survey asked
a series of questions about reemployment after activation that included
the areas addressed in our recommendations. We disagree. For this
report, we used results from the May 2004 survey that showed at least
72 percent of the Selected Reserve members who had experienced USERRA-
related problems never filed a complaint, informal or formal, to seek
assistance in resolving the problem. However, the survey did not cover
all the areas addressed in our recommendation. For example, the survey
did not ask those servicemembers who had experienced USERRA-related
problems and never filed a complaint, informal or formal, why they did
not seek assistance in resolving the problem. We believe that this
would be valuable information, if gathered regularly, to gauge the
effectiveness of federal actions to support USERRA by identifying
trends in compliance and employer support. DOD also stated that, at the
request of DOL, it has agreed to include the series of questions about
reemployment after activation in future surveys. OSC generally
concurred with this recommendation, but had no specific comment. DOL
did not comment on this recommendation.
DOD also concurred with our recommendation for the Secretary of Defense
to (1) take steps to enforce compliance with servicemembers' reporting
of their civilian employer information and maintain employer
information, and (2) share employer information from the database with
other federal agencies that educate employers about USERRA. DOD stated
that the first objective of this recommendation had already been
accomplished. We disagree. In our report, we noted that compliance with
the requirement to enter Selected Reserve member employment information
into the database has risen substantially during this review--from 13
percent in October 2004, to 58 percent in April 2005, to 73 percent in
August 2005. We also noted that compliance varies by component, with
the Army Reserve and the Marine Corps Reserve each having the lowest
percentage of compliance--66 percent. Further, we noted that compliance
rates are substantially lower for the Individual Ready Reserve and the
Inactive National Guard--about 24 percent. Individual Ready Reserve and
Inactive National Guard members are subject to be recalled to active
duty. About 9,500 Individual Ready Reserve members were called to duty
between September 11, 2001, and June 30, 2005. Outreach to employers of
Individual Ready Reserve members may be even more important than
outreach to Selected Reserve members' employers. Individual Ready
Reserve members do not participate in regular drilling and their
employers may be unaware of the employees' military obligations and
USERRA rights. As the war on terrorism continues, DOD may rely more
upon Individual Ready Reserve members. DOD also noted that enforcement
of compliance is a high priority and is already monitored. As noted in
our report, responsible officials told us that as far as they knew, the
military departments had not enforced the requirement for
servicemembers to comply with reporting their civilian employer
information by subjecting any member to punishment or administrative
action for failing to comply. We believe DOD has more to accomplish in
this area. With regard to the second objective of this recommendation,
DOD stated that it is working collectively with DOL and the Department
of Veterans Affairs to ensure that their respective systems facilitate
consistent reporting capabilities. OSC generally concurred with both
objectives of this recommendation, but had no specific comments. DOL
did not comment on this recommendation.
DOD deferred to DOL, DOJ, and OSC regarding our recommendation for the
Secretary of Defense, along with the Secretary of Labor, the Attorney
General, and the Special Counsel, to develop procedures or systems to
enable the electronic transfer of complaint information between
agencies. DOD stated that the department only tracks "informal
inquires," not complaints that are filed with DOL, with possible
referral to the DOJ or the OSC. Therefore, establishment of a complaint
database would fall within the purview of those agencies. DOD noted
that it would support the sharing of USERRA information received by DOD
with responsible agencies. We note that DOD's system can contain
extensive ombudsmen notes and details about informal complaints, not
just inquires for information that are tracked separately, and would be
beneficial and time saving to DOL if an informal complaint becomes a
formal complaint filed with DOL. DOL concurred with this recommendation
and noted that DOL has initiated internal discussions on ways in which
DOL offices can ultimately use one electronic case management system.
DOL stated that the department will work closely with DOD, DOJ, and OSC
in advancing an electronic shared system configured to fit the
agencies' responsibilities under USERRA. OSC also concurred with this
recommendation, noting that OSC's ability to enforce USERRA has not
been adversely affected by the transfer of information by other than
electronic means. Nevertheless, OSC noted that the office was dedicated
to improving USERRA services to servicemembers and thus generally
concurred with the recommendation, although OSC indicated that the
development of USERRA-specific electronic files may require additional
funding from Congress.
DOL concurred with our recommendation for the Secretary of Labor to
develop a plan to reduce agency reliance on paper files and fully adopt
the agency's automated complaint file system. DOL noted that the
establishment of such electronic files would enhance DOL's ability to
more efficiently and effectively share documents and other case-
specific data with other agencies, thus advancing accomplishment of our
recommendation for DOD, DOL, DOJ, and OSC to develop procedures or
systems to enable the electronic transfer of complaint information
between agencies.
DOL and OSC commented on our matter for congressional consideration
that Congress should consider designating a single office to maintain
visibility over the entire complaint resolution process from DOD
through DOL, DOJ, and OSC. DOL noted that the mandated OSC
demonstration project is ongoing, and therefore, it would be premature
to make any suggestions or recommendations for congressional or
legislative action until the pilot has been completed. However, DOL
stated that its office is uniquely suited to provide an overview of the
entire complaint resolution process. OSC supported our matter and
stated that OSC has unparalleled experience and expertise in
administering federal sector employment complaints and prosecuting
meritorious workplace violations before the Merit Systems Protection
Board. OSC believes that their office is the best qualified to be the
overseer. DOD did not comment on this matter. We believe that the
Congress is the best qualified to determine the identity of the
overseer and the timing of this matter for congressional consideration.
DOD, DOL, and OSC's written comments are reprinted in their entirety in
appendixes VII, VIII, and IX, respectively. All the agencies also
provided technical comments, which we incorporated as appropriate.
As agreed with your office, unless you publicly announce the contents
of this report earlier, we plan no further distribution of it until 30
days from the date of this letter. We are sending copies of this report
to the Secretary of Defense; the Secretary of Labor; the Attorney
General; the Special Counsel; the Secretaries of the Army, the Navy,
and the Air Force; the Commandant of the Marine Corps; the Chairman of
the Joint Chiefs of Staff; the Director, Office of Management and
Budget; and other interested congressional committees. We will also
make copies available to others upon request. In addition, the report
will be available at no charge on the GAO Web site at [Hyperlink,
http://www.gao.gov].
If you or your staff have any questions about this report, please
contact me at (202) 512-5559 or [Hyperlink, stewartd@gao.gov]. Contact
points for our Offices of Congressional Relations and Public Affairs
may be found on the last page of this report. GAO staff who made major
contributions to this report are listed in appendix XI.
Sincerely yours,
Signed by:
Derek B. Stewart:
Director, Defense Capabilities and Management:
[End of section]
Appendixes:
Appendix I: Scope and Methodology:
To assess whether the federal agencies that support or enforce USERRA
have data that indicates the level of compliance with USERRA, we
gathered and analyzed data from DOL, DOD, DOJ, and OSC. Specifically,
we obtained historical data on the numbers of formal complaints handled
by DOL and then analyzed the data to determine whether the data showed
any trends and whether it was sufficient to demonstrate overall USERRA
compliance or employer support. We also analyzed the annual numbers of
formal complaints referred from DOL to DOJ and OSC between fiscal year
1997 and the third quarter of fiscal year 2005 to determine whether
there were trends in the total referrals, or the referrals to either
agency.[Footnote 58] We also followed up on our 2002 report[Footnote
59] to determine whether the ESGR had improved its collection of
informal complaint data. We interviewed the ESGR headquarters officials
and ombudsmen who handled informal complaints. We observed training for
the ESGR's new database and we observed data entry procedures at the
ESGR's Customer Support Center. In addition, we analyzed DMDC's
projectable Status of Forces Survey of Reserve Component Members, which
was conducted in the spring of 2004. This survey included more than 20
questions about servicemember employment and USERRA-related issues. We
also analyzed results from the Reserve Officers Association's annual
surveys of Fortune 500 companies, which asked about policies that
support servicemember employees. We discussed the agency data related
to USERRA compliance or employer support, along with the practices and
methods used to collect these data, with responsible officials from
the:
* Department Of Labor, Washington, D.C;
* Department Of Labor, Veterans Employment and Training Service, Field
Offices in Memphis, TN, and Norfolk, VA; and regional offices in
Philadelphia, PA; and Atlanta, GA;
* Department Of Labor, Office of the Solicitor, Washington, D.C; and
Regional Offices in Philadelphia, PA, and Atlanta, GA;
* Department of Justice, Washington, D.C;
* Office of Special Counsel, Washington, D.C;
* Department Of Defense, Employer Support of the Guard and Reserve,
Arlington, VA; and:
* Department Of Defense, Employer Support of the Guard and Reserve,
Customer Service Center, Millington, TN.
We also discussed these issues with:
* The ESGR's State Ombudsmen Coordinators from AR; IL; KY; MD; TN; UT;
and Washington, D.C.,
and with officials who were present at:
* The ESGR's Basic Ombudsman Training Session held in Meridian, MS.
To gauge the impact of the ESGR's ombudsmen program, we conducted a
survey of ombudsmen nationwide. We wished to survey all ombudsmen who
were available to handle servicemember complaints as of April 6, 2005
(the "target" population). To do this, we obtained the list that the
ESGR was using to assign USERRA complaints to ombudsmen on that date
(the "study" population), which presumably included all of the
individuals who were available to handle complaints. We conducted seven
pretests of our ombudsmen questionnaire prior to administering the
survey. During the pretests we asked the ombudsmen whether (1) the
survey questions were clear, (2) the terms used were precise, and (3)
the questions were unbiased. We made changes to the content and format
of the final questionnaire based on pretest results.
The ombudsmen surveys were conducted using self-administered electronic
questionnaires posted on the World Wide Web. The survey questionnaire
consisted of 12 questions, and asked ombudsmen how many USERRA
complaints they had received and personally resolved. (App. V contains
a copy of the survey and the survey results.) On May 3, 2005, we used a
list supplied by the ESGR headquarters to send E-mail notifications to
831 ombudsmen in 54 states and territories to inform them that a survey
would be forthcoming. Then, on May 9, 2005, we activated the survey,
sending each of the 831 members of the study population a unique
password and username by E-mail so they could enter and complete the
Web-based questionnaire. To encourage ombudsmen to respond, we sent two
additional E-mail messages over the following 3 weeks. Those ombudsmen
who were unable to complete the survey online were given the option to
respond via fax, phone, or mail. We closed the survey on June 9, 2005.
Although all members of the study population were surveyed, not every
member replied to our survey. Specifically, 618 of the 831 members of
the study population replied. In addition, 52 of the 618 respondents
were out of scope because they indicated they were not serving as
volunteer ombudsmen as of April 6, 2005. Table 2 contains a summary of
the survey disposition for the surveyed cases. The response rate for
our survey was 74 percent. [Footnote 60]
Table 2: Data from GAO's Survey of the ESGR Ombudsmen:
Ombudsmen in the study population: 831.
Ombudsmen replying to the survey: 618.
Ombudsmen replying who were out of scope: 52.
In scope respondents: 566.
Response rate: 74 percent.
Source: GAO.
[End of table]
We obtained responses from volunteer ombudsmen across the country.
Although the response rate of ombudsmen differed somewhat across
states, we have no reason to expect that the responses on the issues
studied in our survey would be associated with the ombudsmen's states.
Therefore, our analysis of the survey data treats the respondents as a
simple random sample of the population of the ESGR volunteer ombudsmen
across the country.
Assuming that the respondents constitute a random sample from the study
population, the particular sample of ombudsmen we obtained was only one
of a large number of such samples that we might have obtained. To
recognize the possibility that other samples might have yielded other
results, we express our confidence in the precision of our particular
sample's results as a 95 percent confidence interval. Unless otherwise
noted, the percentage estimates from the survey have a margin of error
of plus or minus 3 percent or less with a 95 percent level of
confidence. All numerical estimates other than percentages have a
margin of error of plus or minus 14 percent or less of the value of
those numerical estimates with a 95 percent level of confidence, unless
otherwise noted.
The practical difficulties of conducting any survey may introduce
errors, commonly referred to as nonsampling errors. For example,
difficulties in how a particular question is interpreted, in the
sources of information that are available to respondents, or in how the
data are entered into a database or were analyzed, can introduce
unwanted variability into the survey results. We took steps in the
development of the questionnaire, the data collection, and the data
analysis to minimize these nonsampling errors. For example, social
science survey specialists designed the questionnaire in collaboration
with GAO staff with subject matter expertise. Then, the draft
questionnaire was pretested to ensure that the questions were clearly
stated and easy to comprehend. When the data were analyzed, a second,
independent analyst checked all computer programs. Since this was a Web-
based survey, most respondents entered their answers directly into the
electronic questionnaire. This eliminated the need to have the data
keyed into a database, thus removing an additional source of error. A
GAO analyst entered responses into our database from those ombudsmen
who were unable to complete the survey on-line and responded via fax,
phone, or mail. All these data were independently verified by a second
analyst to ensure their accuracy.
We also assessed the reliability of the data from the May 2004, Status
of Forces Survey of Reserve Component Members, by (1) interviewing
agency officials from:
* the Defense Manpower Data Center, Washington, D.C., and:
* the Assistant Secretary of Defense for Reserve Affairs, Washington,
D.C.,
who were knowledgeable about the data, (2) reviewing existing
information about the data and the system that produced them, and (3)
performing electronic testing of required data elements. The response
rate for the survey was 39 percent. To the extent that respondents and
nonrespondents had different opinions on the questions asked, the
estimates from this survey have the potential to be biased. DOD has
previously conducted and reported on research to assess the impact of
response rate on overall estimates. DOD found that, among other
characteristics, junior enlisted personnel (E1 to E4), servicemembers
who do not have a college degree, and members in services other than
the Air Force, were more likely to be nonrespondents. We have no reason
to believe that potential nonresponse bias not otherwise accounted for
by DOD's research is substantial for the variables we studied in this
report. All percentage estimates cited from the survey have sampling
errors of plus or minus 2.3 percentage points or less, unless otherwise
noted. The at least 72 percent of National Guard and Reserve members
who never sought assistance for their USERRA problems represents the
lower bound of a 95 percent confidence interval around a point estimate
(77 percent) that has a plus or minus 5 percent margin of error. Ranges
cited from the survey represent a 95 percent confidence interval around
point estimates. We used the weighting factors and the sampling error
methodology provided by the Defense Manpower Data Center to develop
estimates and sampling error estimates, and determined that the data
from the May 2004 Status of Forces Survey of Reserve Component Members
were sufficiently reliable for the purposes of this report.
To asses the efficiency and effectiveness of federal educational
outreach efforts, we reviewed Section 4333 of Title 38 of the United
States Code to determine which agencies have outreach responsibilities
under USERRA. We interviewed agency officials to determine whether
their agencies had any significant educational outreach efforts.
Although only two of the four agencies we reviewed had outreach
responsibilities under the law--DOD and DOL--officials from three
agencies said that they had significant outreach activities--DOD, DOL,
and OSC. We obtained information about each agency's activities, and
analyzed the available outreach figures for individual programs and
total agency outreach. Because DOD has at least nine different formal
outreach programs, we devoted an entire appendix (app. IV) to the
details of DOD's programs. We also followed up on issues related to the
collection of servicemember employer information, which we raised in
our 2002 employer support report.[Footnote 61] Specifically, we
reviewed DOD's policy memoranda that were issued after our 2002 report
and which mandated that Ready Reserve members supply information about
their civilian employers. We also monitored and analyzed figures that
showed servicemember rates of compliance with the estimates from this
survey on these reporting requirements. These compliance figures
covered each of the reserve components and various reserve categories.
To asses how efficiently and effectively DOD, DOL, DOJ, and OSC
addressed servicemember complaints, we obtained and analyzed
information about complaint processing practices, including applicable
guidance, regulations, or operations manuals. We also obtained and
reviewed the memorandums of understanding between DOL and DOJ, OSC, and
the ESGR. To further analyze the entire process, we gathered and
analyzed information about how the agencies share information from
USERRA complaint files with one another. We exported data from the VETS
USERRA Information Management System and analyzed the data to look for
trends in processing times. We specifically focused our analysis on
cases that had been closed and later reopened, and on cases that had
been referred from DOL to DOJ or OSC. We performed multiple sorts of
the entire data set, and data subsets, to determine whether there were
any common characteristics in complaint files from the group of
complaints that remained open for long time periods, or in the
complaint files from the group of complaints that were quickly
resolved. For example, we sorted complaint data by: type of employer,
regional office, type of servicemember, and type of complaint. We used
many of the other more than 70 data fields to perform data sorts but
much of our analysis did not yield reportable results because
substantial amounts of information were missing for certain data
fields. However, our analysis of date fields was not hampered by
missing data and we were able to calculate elapsed times and processing
times from the available data.
We assessed the reliability of formal complaint data provided by DOL,
DOJ, and OSC by (1) reviewing existing information about the data and
the systems that produced them and (2) interviewing and obtaining
written responses from agency officials knowledgeable about the data.
We compared data obtained from DOJ and OSC to that captured in the DOL
USERRA Information Management System. We also compared data drawn from
DOL's USERRA Information Management System at different time periods to
determine the consistency of the data. In addition, where available, we
compared information from 59 hard copy complaint files to data recorded
in the DOL system to assess how accurately information was being
entered into the database. We also discussed informal complaint data
and its reliability with knowledgeable ESGR officials. On the basis of
these assessments, we determined that the data were sufficiently
reliable for the purposes of this report, though agency data systems
had some limitations that we discussed in the report.
We conducted our work from October 2004 through August 2005 in
accordance with generally accepted government auditing standards.
[End of section]
Appendix II: Professional Backgrounds of the ESGR's Volunteer
Ombudsmen:
Between May 9, 2005, and June 9, 2005, we surveyed the ESGR's volunteer
ombudsmen who were available to handle servicemember complaints as of
April 6, 2005. We received a 74 percent response rate to our survey.
Tables 2 shows that about 58 percent of the volunteer ombudsmen were
employed in full-time jobs, and about 30 percent were retired.
Table 3: Employment Status of the ESGR's Ombudsmen (as of April 6,
2005):
Employment status: Employed full-time;
Percentage: 58.
Employment status: Employed part-time;
Percentage: 11.
Employment status: Retired;
Percentage: 30.
Employment status: Not retired or employed;
Percentage: 1.
Employment status: Total;
Percentage: 100.
Source: GAO.
Note: Estimated percentages have a margin of error of plus or minus 3
percent with a 95 percent level of confidence.
[End of table]
Table 3 shows the distribution of ombudsmen by their primary employers.
About 44 percent worked for the government or military, and about 56
percent worked for private employers, including the approximately 21
percent who were self-employed.
Table 4: The Primary Employers of the ESGR's Ombudsmen (as of April 6,
2005):
Primary employer: Military;
Percentage: 15.
Primary employer: Federal government (non-military);
Percentage: 9.
Primary employer: State government;
Percentage: 11.
Primary employer: Local government;
Percentage: 8.
Primary employer: Total government employers;
Percentage: 44[A].
Primary employer: Large private sector firms;
Percentage: 18.
Primary employer: Small businesses;
Percentage: 11.
Primary employer: Non-profit or charitable organizations;
Percentage: 6.
Primary employer: Self employed;
Percentage: 21.
Primary employer: Total private employers;
Percentage: 56.
Grand total;
Percentage: 100.
Source: GAO.
Note: Estimated percentages have a margin of error of plus or minus 3
percent with a 95 percent level of confidence.
[A] The government and military figures add to 44 percent rather than
43 percent due to rounding.
[End of table]
In addition to the general background employment questions, our survey
asked respondents to specify their occupations or backgrounds that they
felt were particularly relevant to their ombudsmen duties. The
responses were varied and showed that many of the volunteers hold or
had previously held paid positions that required: leadership, skillful
negotiation, extensive interactions with different types of people, or
knowledge of laws and regulations or military operations and
procedures. In the information that follows, we have grouped the
responses and provided some examples of the occupations the ombudsmen
thought were particularly relevant. The ombudsmen said that they had
held:
* Legal positions ranging from paralegals to attorneys, assistant
attorney generals and a wide range of judges--administrative law,
municipal, district, superior court, and state supreme court;
* Dispute or resolution positions as mediators, negotiators,
arbitrators, facilitators, and grievance officers;
* Counseling positions as veterans' career/employment, vocational
rehabilitation, and recruitment/retention counselors;
* Political positions ranging from local mayor and city council
positions to lobbyist and state legislature and senate positions;
* Military positions in the active Army, Navy, Air Force, and Marine
Corps; and in the Army Reserve, the Army National Guard, the Air
National Guard, the Air Force Reserve, the Naval Reserve, the Marine
Corps Reserve, and the Coast Guard Reserve;
* Federal government positions in the Departments of: Defense, Justice,
Homeland Security, Labor, Veterans Affairs, Education, Health and Human
Services, Interior, Corrections, Energy, Agriculture, Treasury, and in
the U.S. Postal Service;
* State and local government positions in the Departments of Military
Affairs, Environmental Management, Public Safety, and Aviation; and in
the Adjutant General's office;
* Education positions ranging from teachers and college professors, who
taught mediation and communications, to principal, school
superintendent, and college president positions;
* Law enforcement positions as police officers, supervisors, or chiefs;
state troopers, marshals, investigators, and as a liaison between the
military and a major city police department that employs more that 500
Guard and Reserve members;
* Religious positions as chaplain and deacon;
* Business and management positions as labor relations specialists,
negotiators, human resource managers, public affairs officers, owners,
general managers, directors, presidents, vice-presidents, and CEOs;
and:
* Trade organization positions as union officers or shop
steward/negotiators.
[End of section]
Appendix III: Department of Labor Form 1010:
[See PDF for image]
[End of figure]
[End of section]
Appendix IV: DOD's Outreach Programs:
The ESGR has responsibility for most DOD outreach programs but DOD also
has a public affairs campaign that encourages employer support of
servicemember employees. In past years, the ESGR's focus was on
educating servicemembers concerning their employment rights. In fiscal
year 2005, the ESGR shifted its focus to educating employers. The new
focus better aligns with the ESGR's mission--to gain and maintain
support for employee military service from all public and private
employers of the men and women of the National Guard and Reserve. To
fulfill its mission, the ESGR has developed and implemented a number of
employer outreach efforts. In addition to the ESGR's "statement of
support" and awards programs, which were discussed in the body of this
report, the ESGR has a number of other outreach programs that are
discussed below. Some of these efforts are well underway, others are
relatively new.
The ESGR Outreach Programs:
* Mass Market Outreach. This ESGR effort has used public service
advertising and mass marketing to make employers and the general public
aware of the importance of employer support for Guard and Reserve
members who are called to military service, and the role that the ESGR
can play in encouraging supportive employer relations.
* Strategic Partnerships. Through these partnerships with the national
headquarters and local chapters of the Chamber of Commerce, Society for
Human Resource Management, National Federation of Independent Business,
Small Business Administration, and Rotary Club, the ESGR strives to
educate employers about USERRA, the ESGR organization, and the
different ways employers can support their servicemember employees. The
ESGR uses a variety of media, trade show, and speaking opportunities to
reach this target audience. The ESGR's goal was to reach at least 430
local chapters of these groups in fiscal year 2005. As of July 2005,
the ESGR had met with 250 of its strategic partners.
* Industry Segment Outreach. This outreach effort is focused on leaders
in industries that employ significant numbers of reserve component
members. For about 5 years, DOD leaders have met regularly with key
officials from the airline industry to discuss concerns that arise as
the military and industry share the same personnel resources. In fiscal
year 2005, the ESGR planned to hold three similar symposiums with (1)
law enforcement, (2) fire and safety officials, and (3) city and
municipal leaders. However, none of the other symposiums had taken
place when we ended our review in August 2005.
* Federal Government Outreach. USERRA states that the federal
government should be a model employer. The ESGR is encouraging the 17
cabinet-level departments and 81 independent federal government
agencies to sign the ESGR statements of support as a means to
demonstrate their commitment to their servicemember employees. The ESGR
established a goal to have10 federal government agencies sign
statements of support in fiscal year 2005. As of August 2005, a total
of 20 federal agencies had signed statements of support.
* 5-Star Program. In the past, the ESGR's outreach efforts were focused
on simply asking employers to sign statements of support for their
National Guard and Reserve members. The statement of support simply
stated that employers would fulfill their obligations by complying with
USERRA. Currently in its first year, the 5-Star Program seeks to get
employers more actively involved in the management of their National
Guard and Reserve employees. The five steps of the 5-Star Program are
to (1) sign a statement of support, (2) review employer human resource
policies with respect to employer support, (3) train supervisors and
managers on USERRA, (4) provide "above and beyond" human resource
policies, and (5) advocate for National Guard and Reserve members.
* Bosslifts. Bosslifts are usually 2-to 3-day outreach events where
employers, civic leaders, and legislators are taken to Guard or Reserve
units to observe Guard or Reserve members in action. These events
present employers with opportunities to directly observe the technical,
organizational, team building, and leadership skills of their
employees. They also provide employers with opportunities to observe
military training, some of which may be directly related to their
employees' civilian jobs. Each ESGR state committee is programmed for
one nationally sponsored bosslift each year. However, based on the size
and distribution of its reserve component population, California is
programmed for two bosslifts. Additional committee-sponsored bosslifts
are authorized and encouraged. Some state committees sponsor and fund
bosslifts using state funding.
* Employer Briefings. Employer briefings provide a forum for local
employers, unit commanders, the ESGR members, and community leaders to
meet, network, and discuss issues that arise from employee
participation in the National Guard and Reserve. The meeting site can
be a local restaurant, hotel, service club, Chamber of Commerce,
National Guard Armory, Reserve Center, or military installation. This
is a local-level 1-day activity funded at the state level.
Other DOD Outreach Efforts:
* Defense Advisory Board. In August 2003, the Secretary of Defense
created a defense advisory board composed of 15 to 25 industry public
and private sector leaders to act as consultants without compensation.
The board was established for up to 3 years and provides advice to the
Secretary of Defense about issues concerning Reserve component members
and their civilian employers. It also recommends policies and
priorities for employer support actions and programs. The board meets
at least twice a year at the call of the National Chairman, and as
needed to address emergent issues. In March 2005, this board met with
both the Secretary and Deputy Secretary of Defense. Board members
included a state governor, a major city fire chief, and representatives
from employer associations, higher education, and the airline,
information technology, aircraft repair, transportation, public
relations and public affairs, defense and aerospace systems, investment
banking, and food industries.
* America Supports You. This is a nationwide program launched by DOD's
public affairs office to recognize citizens' support for military men
and women and to communicate that support to members of the Armed
Forces at home and abroad. Participants can join the team at
[Hyperlink, http://www.americasupportsyou.mil], share their stories of
support with the nation and troops, and download program materials. In
turn, military members will access the Web site and learn about
America's support for their service. In addition to personal stories of
support, the Web site has a section that recognizes employer support
for servicemembers and particularly for servicemember employees.
[End of section]
Appendix V: GAO's Survey of the ESGR's Volunteer Ombudsmen Including
Results:
This appendix presents a facsimile of the actual questions asked in our
survey of the ESGR ombudsmen along with aggregate responses. The
results presented have been weighted to correspond to the universe of
the ESGR ombudsmen. See appendix I, Scope and Methodology, for a
detailed discussion of this process.
[See PDF for image]
[End of figure]
[End of section]
Appendix VI: DOL's USERRA Information Poster:
[See PDF for image]
[End of figure]
[End of section]
Appendix VII: Comments from the Department of Defense:
ASSISTANT SECRETARY OF DEFENSE:
RESERVE AFFAIRS:
1500 DEFENSE PENTAGON:
WASHINGTON, DC 20301-1500:
OCT 06 2005:
Mr. Derek B. Stewart:
Director, Defense Capabilities Management:
U. S. Government Accountability Office:
Washington, D. C. 20548:
Dear Mr. Stewart:
This is the Department of Defense (DoD) response to the GAO draft
report GAO-06-60, "MILITARY PERSONNEL: Federal Management of
Servicemember Employment Rights Can Be Further Improved. I appreciate
the opportunity to review and comment on the draft GAO report.
The Department does not have major issues with the recommendations made
by the GAO. We concur with recommendations 1, 2 and 3 and defer to the
Department of Labor, the Department of Justice and the Office of
Special Counsel on recommendation 4. We continuously seek improvement
in our employer outreach programs and our reporting capability. Two
significant initiatives that have matured in the past eighteen months -
the Ombudsman data base and the Civilian Employment Information data
base - will not only enhance the effectiveness of our outreach efforts,
they will also provide the information needed to measure and display
the degree to which the Department is carrying out its USERRA
responsibilities. These initiatives were mentioned in the report, but
their significance and importance for the future were not emphasized.
Our approach focuses on educating Reserve component members and their
employers and solving problems at the lowest, informal level. While
this may make measurement of success difficult for this report, we
believe the trend in the number of Department of Labor complaint cases
demonstrates that our efforts are effective.
The Department's comments on the draft report recommendations are
provided in the enclosure. Technical changes that were identified by
reviewers have been provided to the GAO staff separately.
Sincerely,
Signed by:
T. F. Hall:
Enclosure: As stated:
GAO DRAFT REPORT - DATED SEPTEMBER 21, 2005 GAO CODE 350609/GAO-06-60:
"MILITARY PERSONNEL: Federal Management of Servicemember Employment
Rights Can Be Further Improved"
DEPARTMENT OF DEFENSE COMMENTS TO THE RECOMMENDATIONS:
RECOMMENDATION 1: The GAO 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 Uniformed Services
Employment and Reemployment Rights Act (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 servicemember employers provide support behind
that required by the law. (Page 60/GAO Draft Report):
DOD RESPONSE: Concur. In fact, the Department's May 2004 Status of
Forces Survey of Reserve component members asked a series of questions
about reemployment after activation/deployment that included the areas
addressed in this recommendation. Further, at the request of the
Department of Labor (DoL), we have agreed to periodically include this
same series of questions in future surveys to help identify trends.
RECOMMENDATION 2: The GAO recommended that the Secretary of Defense
direct the Service Secretaries to take steps to enforce the requirement
for servicemembers to report their civilian employment information and
develop a plan to maintain current civilian employment information.
(Page 60/GAO Draft Report):
DOD RESPONSE: Concur. This has already been accomplished. Mandatory
collection of employer information for Reserve component members was
directed in March 2003 by the Under Secretary of Defense for Personnel
and Readiness. In a memorandum to the Secretaries of the Military
Departments in November 2004, he reemphasized the mandatory reporting
requirement and set specific goals for obtaining employer data. Over 78
percent of Selected Reserve members have now entered their employer
information in the Civilian Employer Information data base. Enforcement
of this requirement is a high priority in DoD and is already monitored.
RECOMMENDATION 3: The GAO recommended that the Secretary of Defense
direct the Assistant Secretary of Defense for Reserve Affairs to share
applicable employer information from DoD's employer database with
Department of Labor, Office of Special Counsel, and other Federal
agencies that educate employers about USERRA, consistent with the
Privacy Act. (Page 60/GAO Draft Report):
DOD RESPONSE: Concur. DoD, DoL and the Department of Veterans Affairs
are working collectively to ensure, to the extent possible, that
categories of employers, occupational areas, and codes used in their
respective systems facilitate consistent reporting capabilities.
RECOMMENDATION 4: The GAO recommended that the Secretary of Defense,
the Secretary of Labor, the Attorney General, and the Special Counsel
develop procedures or systems to enable the electronic transfer of
complaint information between offices. (Page 61/GAO Draft Report):
DOD RESPONSE: Defer to DoL, the Department of Justice (DoJ), and the
Office of Special Counsel (OSC). The DoD agrees that electronic sharing
of information would enhance our understanding of employer issues.
However, DoD tracks only informal inquiries, not complaints. Complaints
are filed with DoL with possible referral to DoJ, or the OSC.
Therefore, establishment and maintenance of a complaint database would
fall within the purview of those agencies. DoD would support the
sharing of information on USERRA inquiries received by DoD with those
agencies and having the ability to receive reports on complaints filed
with DoL or OSC, should those agencies agree to undertake such an
initiative. However, DoD defers to DoL, DoJ, and OSC with regard to
establishing electronic transfer of data among those agencies.
[End of section]
Appendix VIII: Comments from the Department of Labor:
U.S. Department of Labor:
Assistant Secretary for Veteran's Employment and Training:
Washington, D.C. 20210:
OCT - 7 2005:
Mr. Derek B. Stewart:
Director, Defense Capabilities and Management:
U.S. Government Accountability Office:
441 G Street, N.W.:
Washington, D.C. 20548:
Dear Mr. Stewart:
The Department of Labor (DOL) appreciates the opportunity to comment on
the draft report entitled, "MILITARY PERSONNEL: Federal Management of
Servicemember Employment Rights Can Be Further Improved," (GAO-06-60).
The administration and enforcement of the Uniformed Services Employment
and Reemployment Rights Act (USERRA), 38 U.S.C. §§4301-4334, has taken
on increased importance in view of the mobilization of over 500,000
members of the National Guard and Reserve in support of Operation Noble
Eagle, Operation Enduring Freedom, and Operation Iraqi Freedom. In
response to these mobilizations, DOL has reinforced its commitment to
assist employees and employers in ensuring that the non-discrimination
and reemployment mandates of USERRA are fully enforced. DOL's effective
administration of the statute has included promulgation of the first-
ever USERRA regulations for State and private employers. The Veterans'
Employment and Training Service (VETS), the DOL agency responsible for
USERRA's administration, has developed and enhanced its web-based
USERRA advisor and has made available on its website an electronic
complaint form, which provide servicemembers with greater access and
opportunity to know and understand their rights under USERRA.
USERRA assigns responsibilities to the DOL, the Department of Defense
(DOD), the Department of Justice (DOJ) and the Office of Special
Counsel (OSC), who each have a role in carrying out USERRA's mandates.
We work closely with those agencies in undertaking this crucial mission
i C this end, in September, 2004, DOL and DO J entered into a
MeMorandum of Understanding that strengthens the close working
relationship of the two agencies. Similarly, in September, 2005, DOL
memorialized its longstanding cooperative relationship with the
Department of Defense's Employer Support of the Guard and Reserve to
promote the agencies' goal of early resolution of USERRA employment and
reemployment issues.
As noted in the report, the multi-agency administration and enforcement
of the statute requires interagency cooperation and a comprehensive
approach to ensuring that a servicemember's interaction with the USERRA
system is as effective as possible. DOL agrees with the GAO's
recommendations for DOL action that emphasizes a more "results-oriented
focus." We support all recommendations intended to reduce "mission
fragmentation" and other barriers to interagency cooperation that may
impede our ultimate goal, which is the support of servicemembers. We
also note, however, that the OSC demonstration project mandated by the
Veterans Benefits Improvement Act of 2004 (VBIA), Pub. Law No. 108-454
(Dec. 10, 2004) is ongoing. Therefore, it would be premature to make
any suggestions or recommendations for Congressional or legislative
action until the pilot has been completed.
We agree with GAO's recommendation that DOL, DOD, DOJ and OSC develop
procedures or systems to enable the electronic transfer of complaint
information among offices. DOL's Office of the Solicitor (SOL) and VETS
have already begun to discuss ways in which the two offices can
ultimately use one electronic case management system. In addition, DOL
is in preliminary discussions with the other agencies regarding the
improvement of our inter-agency information exchange and data-sharing
capabilities. We envision that all agencies with administrative and
enforcement responsibilities under the statute will be able to access
from their desktops an electronic shared case-tracking and data
management system, and that access to such a system will be configured
to fit their responsibilities under the statute. DOL will work closely
with DOD, DOJ, and OSC in advancing this goal.
The GAO also recommended that VETS should reduce agency reliance on
paper files and fully adopt the agency's automated complaint file
system. We agree with this recommendation. Given the advanced
capabilities for electronic storage and transmission of documents, we
envision a system in which VETS investigators create and store
investigative and other records and documents electronically, and that
SOL has the ability to immediately access those records. Due regard
would of course be given to preserving privacy rights, and assuring
that documentary evidence needed for trial would be preserved in a form
consistent with the evidentiary requirements of the Federal courts and
the Merit Systems Protection Board. The establishment of such
electronic "files" would enhance DOL's ability to more efficiently and
effectively share documents and other case-specific data with other
agencies, thus promoting the goal set out above.
Our Solicitor's Office and the VETS program have developed
extraordinary expertise through many years of administering and
enforcing USERRA and its predecessor statutes. We think DOL is uniquely
suited to provide an overview of the entire complaint resolution
process. DOL has extensive experience handling all aspects of USERRA
activity, from education and outreach, to technical assistance, to
investigation, to legal review and analysis. Further, DOL is the only
agency that handles cases involving all employers, whether they are
private, State, or Federal Executive Branch employers. The Secretary of
Labor has the authority to, and has, promulgated USERRA regulations for
State and private employers; regulations for Federal Executive Branch
employers, which are the responsibility of the Office of Personnel
Management, are required to be consistent with DOL's regulations
applicable to State and private employers. The VETS program is uniquely
situated to assist in this oversight function, particularly in view of
its exemplary information management system, recently further enhanced
by the integration of an electronic complaint system.
Thank you for the opportunity to respond to this GAO draft report.
Sincerely,
Signed by:
Charles S. Ciccolella:
[End of section]
Appendix IX: Comments from the Office of Special Counsel:
U.S. OFFICE OF SPECIAL COUNSEL:
The Special Counsel:
1730 M Street, N.W, Suite 300:
Washington, D.C. 20036-4505:
October 7, 2005:
The Honorable David M. Walker:
Comptroller General of the United States:
U.S. Government Accountability Office:
441 G. Street, N.W.
Washington, D.C. 20548:
Re: Comments to Draft Report GAO-06-60:
Dear Comptroller General Walker:
Thank you for the opportunity to respond to the Government
Accountability Office's draft report entitled, "Military Personnel;
Federal Management of Servicemember Employment Rights Can be Further
Improved" (GAO Report Number 06-60). The Federal government is the
largest civilian employer of Guardsmen and Reservists, and Congress
intends for it to be a model employer in fulfilling its statutory
obligations under the Uniformed Services Employment and Reemployment
Rights Act of 1994 (USERRA), 38 U.S.C. § 4301, et seq. As head of the
federal agency that has exclusive prosecutorial authority over federal
sector USERRA cases, I share fully in Congress' view and will continue
to enforce aggressively the employment rights of service members. I
generally concur with report's conclusion that service member
employment rights can be strengthened with improved federal management
over the administrative process, and my specific comments are set forth
in part II of this letter. To better appreciate and understand them,
however, I have provided background on the U.S. Office of Special
Counsel (OSC) and its important role in enforcing USERRA in the federal
sector.
I. OSC's Role in Protecting Service Members' Federal Employment Rights:
OSC's role in protecting service members' federal employment rights is
powerful and unique. As explained in detail below, no other federal
agency-including the U.S. Department of Labor's component
organizations: Veterans' Employment and Training Service (VETS) and
Office of the Solicitor (SOL)-has the statutory authority, experience,
and expertise to receive, review, investigate, resolve, and prosecute
USERRA violations and prohibited personnel practices occurring in the
federal sector. Only OSC can offer the full spectrum of assistance that
service members may need, and certainly deserve, to protect their
federal employment rights. And, as Special Counsel, I assure you that
OSC is ready, willing, and able to protect service members zealously
and to the full extent of the law.
A. OSC and the Federal Merit System:
OSC is an independent federal investigative and prosecutorial agency
established pursuant to 5 U.S.C. § 1211. Its primary mission is to
safeguard the federal merit system by protecting federal employees and
applicants from prohibited personnel practices occurring in the federal
workplace. OSC has a proud history of serving the federal workforce and
the public through its tenacious defense of the merit system principles
that continue to safeguard the integrity of the executive branch
agencies of the United States.
To protect the employment rights of federal workers and applicants, OSC
employs personnel specialists, investigators, and attorneys who
receive, review, investigate, and resolve allegations of prohibited
personnel practices. We are the only federal agency authorized to seek
corrective action on behalf of aggrieved claimants and disciplinary
action against federal managers for committing prohibited personnel
practices. OSC prosecutes such claims before the U.S. Merit Systems
Protection Board (MSPB).
In fiscal year 2004, OSC received over 1900 prohibited personnel
practice claims with the majority of those claims alleging numerous
prohibited personnel practices. OSC's "bread and butter" is the
receipt, review, investigation, resolution, and prosecution of
allegations of violations of federal employment rights. Further, OSC's
Disclosure Unit (DU) complements its prohibited personnel practice
mission by serving as a safe conduit for the receipt and evaluation of
whistleblower disclosures (which are separate from prohibited personnel
practice allegations) from federal employees, former employees and
applicants for federal employment.
B. OSC's Role in Enforcing USERRA:
With the passage of USERRA in October of 1994, Congress expanded OSC's
role as protector of the federal merit system and the federal
workplace. USERRA is the law that sets forth the reemployment rights of
persons who are absent from their respective civilian employment due to
the performance of military duties. USERRA also makes it illegal for an
employer to deny any benefit of employment on the basis of past,
current, or future performance of military service.
Under USERRA, the U.S. Department of Labor, Veterans' Employment and
Training Service (VETS), receives USERRA claims, conducts USERRA
investigations, and endeavors to resolve claims with the involved
agency. Where VETS is unable to resolve claims, the matter is referred
to OSC for review at the claimant's request.
When a claim is referred to OSC at the claimant's request, OSC
objectively reviews the facts and laws applicable to each complaint.
Where a VETS investigation is deficient, OSC may endeavor to obtain
additional information from the involved agency. Where the Special
Counsel is satisfied that claimant is entitled to relief, then it may
exercise its prosecutorial authority and represent the claimant before
the MSPB and, if required, the U.S. Court of Appeals for the Federal
Circuit. See 38 U.S.C. §§ 4324(a)(2)(A) and (d)(2). As an experienced
prosecutor before the MPSB, OSC seeks to obtain full corrective action
on behalf of claimants either by settlements with the involved federal
employer or through MSPB litigation.[NOTE 1] OSC's unique role in
enforcing USERRA complements its role in protecting the federal
employees and applicants from prohibited personnel practice in the
federal workplace.
C. OSC's Role in Enforcing USERRA - Demonstration Project:
In late 2004, Congress further expanded OSC's role in enforcing USERRA
and protecting the employment rights of federal employees and
applicants. Pursuant to a demonstration project established by the
Veterans Benefits Improvement Act (VBIA), signed by President Bush on
December 10, 2004, OSC, rather than VETS, was given the exclusive
authority to investigate federal sector USERRA claims brought by
persons whose social security number ends in an odd-numbered digit.
Under the project, OSC also receives and investigates all federal
sector USERRA claims containing a related prohibited personnel practice
allegation over which OSC has jurisdiction regardless of the person's
social security number (so-called "mixed claims"). [NOTE 2]
Pursuant to section 204(a) of the VBIA, certain federal sector USERRA
claims "are referred to, or otherwise received by, the Office of
Special Counsel for assistance, including investigation and resolution
of the claim as well as enforcement of rights with respect to the
claim." Hence, OSC has the responsibility for providing technical
assistance to service members who claim USERRA rights and benefits. OSC
fulfills that responsibility, by regularly providing technical and
other assistance to employees and employers (e.g., educating employees
and employers about their respective rights and responsibilities under
the law) in addition to investigating cases under the demonstration
project.
OSC is the administrator of the demonstration project, and DOL shall
cooperate with OSC in carrying out the demonstration project.[NOTE 3]
The demonstration project began on February 8, 2005, and ends on
September 30, 2007.
NOTES:
[1] There is currently no provision under USERRA that permits OSC to
seek disciplinary action against federal employees who knowingly and
willfully violate USERRA. But, because federal sector USERRA violations
may involve prohibited personnel practices, OSC always scrutinizes its
USERRA cases for possible prohibited personnel practices upon which
disciplinary action can be based and brought against agency officials
who violate service members' employment rights.
[2] VETS's investigative authority was limited to federal sector USERRA
claims brought by persons whose social security number ends in an odd-
numbered digit and who do not allege a prohibited personnel practice.
[3] See section 204(d)(1) of VBIA.
In summary, the demonstration project enables service members to have
their USERRA allegations investigated by OSC's experienced and expert
staff and, if substantiated, quickly resolved via settlement or by
filing an action before the MSPB. For OSC, it is a natural and
comfortable extension of what OSC's does best-i.e., protect the
employment rights of federal employees and applicants.
D. OSC's USERRA Unit:
Given the new, additional investigative responsibilities Congress
assigned to OSC with the passing of the demonstration project and my
personal desire to revitalize OSC's enforcement of USERRA during my
term as Special Counsel, I established the USERRA Unit as part of my
January 6, 2005, directive reorganizing the agency. The USERRA Unit is
the in-take, investigative, and prosecutorial unit for all matters
pertaining to USERRA and veteran-related employment issues. The unit is
responsible providing technical assistance to claimants, investigating
USERRA claims, and resolving or prosecuting meritorious allegations.
[NOTE 4]
In order to inform service members and federal agencies of OSC's new
role in enforcing USERRA, the USERRA Unit substantially modified OSC's
web page.
It describes OSC's role under the demonstration project and explains
the manner in which certain federal claimants may seek OSC's assistance
for alleged violation of their USERRA rights.
To make the claim filing process easier and speedier for service
members, the USERRA Unit created a new claim form solely for filing
USERRA claims with OSC. Form OSC-14 "Complaint of Possible Violation of
USERRA" has been approved by the U.S. Office of Management and Budget
(OMB) and has been in use since March 2005. So rather than having to
file with VETS and wait for VETS to transfer the claim to OSC, the
USERRA Unit took the initiative and created a means by which service
members can file directly with OSC. To make the process even faster,
the USERRA Unit anticipates that claimants will soon be able to file
OSC-14 forms electronically.
Finally, the USERRA Unit provides outreach services designed to educate
federal personnel on USERRA issues so that agencies comply with the
law. Such outreach efforts include USERRA seminars presented by OSC
staff to the D.C. Bar in May 2005, at the annual Federal Dispute
Resolution Conference in August 2005 in New York, and at an upcoming
presentation at the Army's Advanced Labor and Employment Law Course on
October 18, 2005, at the Judge Advocate General's Legal Center and
School in Charlottesville, Virginia. In addition, I have appeared on
the Pentagon Channel, which broadcasts military news and information
for the 2.6 million members of the Armed Forces stationed worldwide,
and informed our soldiers of their rights under USERRA.
NOTE:
[4] The Unit is presently comprised of three investigators, two staff
attorneys, and a very experienced GS-15 supervisory attorney who serves
as Chief of the unit. The USERRA Unit is part of OSC's Special Project
Unit, which is headed by the Principal Special Assistant to the Special
Counsel.
I also write and speak frequently about the USERRRA accomplishments OSC
has achieved for service members during my term as Special Counsel,
including prosecuting the first USERRA cases in OSC's history. Finally,
in order to be readily available to provide technical assistance to
service members and employers, the unit maintains a telephonic and web-
based "hotlines" for answering USERRA-related questions from the public
and private sectors.
II. Comments to the Draft Report:
A. Comments to Specific Points Raised:
In addition to commenting on the report's recommendations in paragraph
II. B, it is also important that I respond to two points raised in body
of the report.
1. Explanation of ESGR's Role:
The draft report states, "When ombudsmen cannot resolve servicemembers
complaints, they notify the servicemembers of the other options that
are available to address complaints." (See page 19 of the draft
report.) Based on the USERRA Unit's experience, that statement is
incorrect.
ESGR does not obtain information indicating whether the service member
has a USERRA claim falling within OSC's exclusive investigative
jurisdiction and does not notify service members of the option of
filing directly with OSC. Instead, it only informs service members of
the right to file claims with DOL.[NOTE 5]
I believe that service member employment rights can be further improved
by ESGR's referring to OSC those federal sector matters over which OSC
has exclusive jurisdiction under the demonstration project. By
eliminating the unnecessary step of transferring to DOL, which then
transfers the claim to OSC, federal management of the process can be
enhanced. Thus, I request that you consider amending your report to
recommend that ESGR refer cases directly to OSC.
NOTE:
[5] It is the USERRA Unit's understanding that DOL does not want ESGR
referring matters directly to OSC. DOUs reasoning for delaying service
members' efforts to seek redress is not known.
2. USERRA Poster:
The report finds that the lack of employer information hinders the
efficiency and effectiveness of agency outreach actions (see page 41 of
draft report). The draft report comments on the means by which DOL has
sought to educate service member and employers about USERRA. With
respect to DOL's outreach, the report states, "DOL also made a USERRA
poster available for employer to post in their workplaces as a means of
complying with the requirements set forth in the Veterans Benefits
Improvement Act, which was enacted by Congress in December 2004. The
poster is on VETS Web site and is included as appendix VI of this
report."
The information contained on DOL's USERRA poster is incomplete and
inaccurate. [NOTE 6] Despite specific, timely requests from OSC to DOL
to do so, the USERRA poster does not include any information about
OSC's important role in providing technical assistance, investigating,
resolving and prosecuting federal sector USERRA claims during the
demonstration project. Nor does it display OSC's telephone number,
webpage, or logo. In short, the poster fails to provide complete
information on how to file a complaint against a federal agency.
The poster is especially troublesome given that an employer may satisfy
its legal responsibility to inform its employees of their USERRA rights
by exhibiting the poster. As mentioned, the Federal government is the
largest single employer of guardsmen and reservists. Additionally,
recently retired career service members often look to the Federal
government for post-military civilian career opportunities. But, the
poster neither informs that large segment of service members nor the
federal agency that employs them (or considers them for employment) of
OSC's critical role in enforcing USERRA in the federal sector.
I believe that service member employment rights can be further improved
by DOL's changing of the USERRA poster to provide accurate information
about the demonstration project. Thus, I request that you consider
amending your report to recommend that the USERRA poster be changed to
include important, relevant information about OSC's enforcement role.
B. Comments to Recommendations:
The draft report makes several recommendations. (See pages 60-62 of
draft report). My succinct responses to each are set forth below.
1. Surveys and Coordination of Outreach Efforts - Concur:
I have no specific comment regarding the recommendation that DOD
include USERRA questions it its periodic surveys of service members,
take steps to enforce the requirement that service members to report
their civilian employment information, and share applicable information
with DOL, OSC, and other federal agencies. (See page 60 of draft
report.) Thus, I generally concur with recommendations that protect
service member employment rights under the statute.
NOTE:
[6] For example, the poster states that DOL is authorized to
investigate USERRA complaints. Under the demonstration project, DOL is
not authorized to investigate certain USERRA complaints.
2. Electronic Transfer of Information - Concur:
The report recommends: (1) DOD, DOL, DOJ, and OSC explore methods of
electronically transferring information between offices and (2) DOL
develop a plan to reduce agency reliance on paper complaint files. (See
page 61 of draft report.)
As mentioned, OSC ability to enforce USERRA has not been adversely
affected by the transfer of information by other than electronic means.
Nevertheless, I am dedicated to improving services to service members
who seek assistance and, therefore, I generally concur with the
recommendation. Given that OSC is an agency with a budget significantly
smaller that that of DOD, DOL, and DOJ, however, it appears that OSC's
development of USERRA-specific electronic files must be funded by
Congress.
3. Single Individual or Office to Oversee Complaint Process - Concur:
The draft report recommends that Congress consider designating a single
office to maintain visibility over the entire conflict resolution
process. (See page 61 of draft report.) Undoubtedly, a single overseer
may be helpful, and I concur with that the recommendation. [NOTE 7]
As for selecting a single overseer, Congress established OSC as an
independent federal executive agency because of the important "watch
dog" functions it carries out. OSC has unparalleled experience and
expertise in administering federal sector employment complaints and
prosecuting meritorious workplace violations before the MSPB. DOL
cannot match OSC's qualifications in those areas. Indeed, Congress
designated my office as the administrator of the demonstration project.
Thus, my agency is qualified to fulfill that important role, and I
request that consideration be given to including a specific
recommendation that OSC be named as the office that maintains
visibility over the entire conflict resolution process for federal
sector cases. Such a role for OSC is consistent with the principle of
government efficiency through the elimination of duplicative effort
and, as important, will allow OSC to, utilize its expertise over those
claims which do not otherwise fall under the full spectrum of
assistance that OSC currently provides to claims service members over
which OSC has jurisdiction under the demonstration project.
NOTE:
[7] I also believe, however, that a further means of tackling the
federal management issue is to reduce the segmentation of the complaint
resolution process. Specifically, the bifurcation of technical
assistance and investigation function and the prosecution function
creates unnecessary delays. Eliminating that fragmentation will greatly
improve service to service members. For example, under the
demonstration project, my office now receives USERRA allegations within
days of the event, not years later as was the case when cases went from
ESGR to DOL to SOL and eventually to OSC.
In closing, I again thank you for the opportunity to responds to the
draft report. Should you have any questions about this letter, you may
telephone USERRA Unit Chief Ronald K. Jaicks at (202) 254-3637.
[End of section]
Appendix X: GAO Contact and Staff Acknowledgments:
GAO Contact:
Derek B. Stewart, (202) 512-5559 or [Hyperlink, stewartd@gao.gov]:
Acknowledgments:
In addition to the contact named above, Brenda S. Farrell, Assistant
Director; Renee S. Brown; Jonathan Clark; Michael J. Ferren; Stuart M.
Kaufman; Susanna R. Kuebler; Mary Jo Lacasse; Ronald La Due Lake; Susan
J. Mason; Jennifer R. Popovic; and Irene A. Robertson made significant
contributions to the report.
(350609):
FOOTNOTES
[1] Pub. L. No. 103-353, as amended, codified at 38 U.S.C. §§ 4301-
4334.
[2] In addition to military servicemembers and veterans, the act covers
the commissioned corps of the Public Health Service and other persons
designated by the President in time of war or national emergency. These
persons currently include about 8,000 intermittent disaster-response
appointees in the National Disaster Medical System. However, since the
primary focus of this report is veterans and active and reserve
component military members, we use the term servicemembers throughout
this report to include all those covered by the act.
[3] Pub. L. No. 93-508 (Dec. 3, 1974).
[4] The reserve components include the collective forces of the
National Guard including the Army Guard and the Air Guard, as well as
the forces of the Army Reserve, the Naval Reserve, the Marine Corps
Reserve, the Air Force Reserve, and the Coast Guard Reserve.
[5] 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 their role is more
limited than that of the four federal agencies that you asked us to
review.
[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 report, 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] Veterans Benefits Improvement Act of 2004, Pub. L. No. 108-454, §
204 (2004).
[8] Under USERRA, reemployment provisions do not apply to brief,
nonrecurrent positions that cannot be expected to continue indefinitely
or for a significant period of time.
[9] It is difficult to exceed the 5-year limit because many types of
military duties do not count against this limit. For example, none of
the time reserve component members spend on active duty supporting
Operations Noble Eagle, Enduring Freedom, and Iraqi Freedom counts
against the 5-year limit.
[10] The ESGR had some unfilled civilian positions during our review so
its authorized staffing level was slightly higher.
[11] While the ESGR refers to these organizations as "state"
committees, there are committees in the District of Columbia, Guam,
Puerto Rico, the Virgin Islands, and Europe, as well as in the 50
states.
[12] Some states do not have state ombudsmen coordinators and in some
states the complaints are channeled through full-time program support
specialists rather than through volunteer state ombudsman coordinators.
[13] DOL currently shares this responsibility with OSC under a mandated
demonstration project discussed under the section on OSC.
[14] The act specified that the report was to be transmitted by
February 1, 1996, and annually thereafter through 2000. The act was
amended in 2004 to require a report by February 1, 2005, and annually
thereafter.
[15] The Office of Personnel Management, in consultation with DOL and
DOD, was given the authority to issue similar regulations for federal
executive agencies.
[16] Fiscal year 2004.
[17] Each DOL referral includes (1) the VETS investigative file, (2) a
memorandum prepared by the VETS regional office that makes a
recommendation concerning the merits of the complaint, and (3) a letter
or memorandum from the regional solicitor that analyzes the merits of
the complaint based on the facts and the law. The letter also provides
a recommendation as to whether DOJ should represent the servicemember.
[18] The demonstration project was authorized by the Veterans Benefits
Improvement Act of 2004, Pub. L. No. 108-454, § 204 (2004).
[19] Under the demonstration project, complaints from servicemembers
whose Social Security numbers end in odd numbers (1, 3, 5, 7, and 9)
are referred to OSC and are no longer investigated by DOL. In addition,
USERRA complaints that allege that a federal agency has engaged in
prohibited personnel practices over which OSC has jurisdiction may be
received directly by OSC regardless of the servicemembers' Social
Security number.
[20] The Web-based survey was actually conducted from April 12, 2004,
and June 3, 2004, but DMDC refers to this as its May 2004 Status of
Forces Survey of Reserve Component Members. See appendix I for
information about the DMDC survey methodology.
[21] The Selected Reserve includes approximately 840,000 National Guard
or Reserve members who are paid for their participation in regularly
scheduled training. Selected Reserve members can be involuntarily
called to active duty under a number of different mobilization
authorities.
[22] Flag officers are officers who have achieved the rank of brigadier
general or rear admiral (lower half) or above.
[23] 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).
[24] GAO, Reserve Forces: DOD Actions Needed to Better Manage Relations
between Reservists and Their Employers, GAO-02-608 (Washington, D.C.:
June 13, 2002).
[25] The Ready Reserve includes about 1.1 million members from three
groups: the Selected Reserve, the Individual Ready Reserve, and the
Inactive National Guard. The Selected Reserve members are the only
Ready Reserve members who participate in regular training, but members
of all three groups can be involuntarily called to active duty under
the mobilization authority invoked by President Bush on September 14,
2001, as implemented in Exec. Order No. 13,223, 66 Fed. Reg. 48,201,
reprinted as amended in 10 U.S.C. § 12302 note (2001).
[26] GAO, Results-Oriented Government: GPRA Has Established a Solid
Foundation for Achieving Greater Results, GAO-04-38 (Washington, D.C.:
Mar. 10, 2004).
[27] Activation is the term DOD uses to describe the process by which
reserve component personnel are called to active duty. This call may be
voluntary or involuntary.
[28] Between October 1, 2004, and June 30, 2005, DOL received 862
formal servicemember employment complaints. OSC also received 69
complaints that in previous years would have gone to DOL. If the
complaint figures for the fourth quarter are consistent with the
figures for the first three quarters, the final fiscal year 2005
complaint number would be 1,241 and would fall between the fiscal year
2002 and 2003 complaint levels.
[29] However, as noted earlier, the demonstration project will affect
the number of complaints filed at OSC since the project allows OSC to
receive complaints directly from certain servicemembers.
[30] Because USERRA was passed in October 1994, DOJ and OSC would not
have received USERRA cases from DOL from 1989 through 1994.
[31] The projected population excluded reserve component members who
were military technicians, on full-time active duty, on state active
duty, or currently activated.
[32] Differential pay is money that is paid to an employee to make up
the difference in lost wages when an employee's civilian salary is
higher than his or her military salary.
[33] Reserve Officers Association data also indicate that some of the
nation's largest employers are providing National Guard and Reserve
members with increased support. Since 1990, the Reserve Officers
Association has conducted annual surveys of Fortune 500 companies,
which identified many corporate policies that exceed USERRA
requirements. For example, the survey results published in 2003 showed
that 132 companies paid full salaries, pay differentials, or a
combination of salaries and differentials to their National Guard and
Reserve employees who were called to emergency active duty. While the
published Reserve Officers Association survey results show that many
companies have increased their benefits to National Guard and Reserve
employees over the years, some significant limitations prevent the data
from being used to demonstrate trends in overall USERRA compliance or
employer support. First, the policies of Fortune 500 companies do not
necessarily reflect employers in general. Second, the companies
responding to the survey differed from year to year. Third, survey
response rates were generally low. For example, the 2003 response chart
listed only 154 companies, the 2002 chart 132 companies, and the 2001
chart 119 companies. Finally, some survey responses on health plans did
not always clearly distinguish between USERRA compliance and extra
benefits.
[34] GAO, Reserve Forces: DOD Actions Needed to Better Manage Relations
between Reservists and Their Employers, GAO-02-608 (Washington, D.C.:
June 13, 2002).
[35] Because the ESGR has assembled a fluid group of ombudsmen made up
primarily of volunteers, we recognized that many of the ombudsmen who
were handling complaints in previous years were no longer ombudsmen
when we did our survey. Therefore, we did not attempt to capture annual
complaint data and asked for total workload figures to obtain a rough
estimate of informal complaint numbers that we could compare to the
formal complaint data provided by DOL.
[36] These other problems included issues related to pensions, upgrade
and refresher training, and health insurance (continuance during
military service).
[37] Data suggest that employer violations of USERRA could be tied not
only to employer knowledge of the law but also to servicemember
understanding of the law. The May 2004 DMDC survey showed that the
incidence of USERRA problems was lower among survey respondents who had
received USERRA briefings than among respondents who had not received
briefings. However, the cross tabulation of the results from the USERRA
briefing question and the USERRA problem question yielded small
subgroups and consequently cannot clearly establish a relationship
between briefings and problems for the entire Selected Reserve
population.
[38] 38 U.S.C.§ 4333. The Secretary of Veterans Affairs shares these
outreach responsibilities with the Secretary of Defense and Secretary
of Labor.
[39] The ESGR's Web site is www.esgr.mil, and its toll-free telephone
number is 800-336-4590. The VETS Web site is www.dol.gov/vets and its
toll-free telephone number is 866-487-2365.
[40] About 50 percent of the requests came from active military or
National Guard or Reserve members, about 29 percent from employers, and
the remainder from the media and other groups and individuals.
[41] OSC's Web site is www.osc.gov, and the telephone number for its
USERRA unit is 202-254-3620.
[42] GAO, Reserve Forces: DOD Actions Needed to Better Manage Relations
between Reservists and Their Employers, GAO-02-608 (Washington, D.C.:
June 13, 2002).
[43] DOD has more than a million Ready Reserve members, who are divided
into three groups. The largest group is the Selected Reserve, which
contains more than 800,000 members who train regularly for pay. The
second group, the Individual Ready Reserve, contains more than 300,000
members. These members were previously trained during periods of active
duty service, but do not participate in any regularly scheduled
training and are not paid as members of the Individual Ready Reserve.
The last and smallest group is the Inactive National Guard, which
contains fewer than 2,000 members who are temporarily unable to
participate in training but who wish to remain attached to their
National Guard units.
[44] During the same period, 21 Inactive National Guard members were
called to active duty.
[45] DOJ's Civil and Civil Rights Divisions have separate systems but
the divisions' USERRA responsibilities cover different time periods.
[46] Shortly before we ended our review, VETS began identifying the
complaints that had gone to the ESGR prior to coming to DOL.
[47] We actually reviewed 59 paper complaint files because one of the
files we were given to review contained the wrong complaint number.
Officials later located the correct file but we did not review it.
[48] Agency officials told us that they had "reconstructed" the four
missing files, but we did not review the reconstructed files.
[49] Officials from this region claimed that they were aware of
problems with reopened cases in their region and had addressed the
problem. However, one case was closed and reopened six times before the
problem was addressed. We did not review all of the more than 430
reopened cases to verify whether or not the cases had been reopened
properly or whether problems with reopened cases had been corrected in
this region or in DOL's other regions.
[50] During our review of 59 paper complaint files, we reviewed 28
reopened complaints. We found that some of these complaints were closed
and then reopened for valid reasons. However, other case closures
simply stopped the processing time clock without addressing the
servicemembers' complaints. For example, one case was closed while the
investigator was waiting to receive information from an employer.
Another was closed to allow the investigator time to consult with the
solicitor's office.
[51] For example, one VETS goal is to close 85 percent of USERRA
complaints within 90 days of the date the complaints were filed.
However, a complaint may still need to go to DOJ or OSC for final
resolution after it has been closed by the VETS investigator. In
addition, DOJ's Assistant Attorney General has directed that, where the
Civil Rights Division believes representation is warranted, a
representation recommendation should be made within 90 days of receipt
of the meritorious referral from DOL. Furthermore, the 90 days does not
count any time that the ESGR spent trying to resolve the complaint.
[52] As noted earlier, the dates in the VETS system do not always match
the dates in the other systems.
[53] VETS procedures specify that if the servicemember provides the
investigator with additional evidence for the initial complaint filed,
the existing complaint is re-opened and the information is added.
However, if the servicemember lodges a new issue, a new complaint is
opened.
[54] Reopened complaints are assigned a complaint number, which begins
the same as the original complaint number but which contains a "R" on
the end of the number to indicate that it is a reopened complaint.
Complaints that are reopened twice contain a "R2" at the end, those
that are reopened three times a "R3," etc.
[55] We collected information on the 52 complaints in July 2005. At
that time, DOL had closed 24 complaints, DOJ and OSC had closed 20
complaints, 4 complaints were still open at DOL, and 4 complaints were
open at DOJ or OSC.
[56] Because dates in the VETS system do not always match the dates in
other systems, the calculated processing and elapsed times may not be
accurate for complaints that have been referred from the VETS
investigator to DOJ or OSC. Therefore, the figures presented here
should not be considered precise reflections of processing times or
elapsed times. The figures are presented because they are the best data
available to illustrate the difference between the agencies' focuses on
outputs and the servicemembers' concern with results.
[57] 38 U.S.C. § 4332 (2005).
[58] Data analysis was performed using DOL's database, which became
officially operational beginning fiscal year 1997.
[59] GAO, Reserve Forces: DOD Actions Needed to Better Manage Relations
between Reservists and Their Employers, GAO-02-608 (Washington, D.C.:
June 13, 2002).
[60] This response rate (number of in scope respondents/estimated total
number of in scope ombudsmen in the study population) is calculated
using the RR3 response rate formula from the American Association for
Public Opinion Research. In this formula we assumed that the percentage
of nonrespondents who were within the scope was the same as the
percentage of the respondents who were within the scope.
[61] GAO, Reserve Forces: DOD Actions Needed to Better Manage Relations
between Reservists and Their Employers, GAO-02-608 (Washington, D.C.:
June 13, 2002).
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