Veterans' Reemployment Rights
Steps Needed to Ensure Reliability of DOL and Special Counsel Demonstration Project's Performance Information Gao ID: GAO-11-312R June 10, 2011In the wake of the ongoing conflicts in Iraq and Afghanistan, thousands of current and former military servicemembers are undergoing a transition between their military service and their civilian employment. Congress enacted the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) to protect the employment and reemployment rights of federal and nonfederal employees when they leave their employment to perform military or other uniformed service. Among other rights, servicemembers who meet the statutory requirements are entitled to reinstatement to the positions they would have held if they had never left their employment or to positions of like seniority, status, and pay. USERRA applies to a wide range of employers, including federal, state, and local governments as well as private-sector firms. This report focuses on federal executive agencies. Under USERRA, an employee who believes that his or her USERRA rights have been violated may file a claim with the Department of Labor's (DOL) Veterans' Employment and Training Service (VETS), which investigates and attempts to resolve the claim. If DOL's VETS cannot resolve the claim and the servicemember is a federal government employee or applicant to a federal agency, DOL is to inform the claimant of the right to have his or her claim referred to the Office of Special Counsel (OSC) for further review and possible OSC representation before the Merit Systems Protection Board (MSPB). Under a demonstration project established by the Veterans Benefits Improvement Act of 2004 (VBIA), from February 8, 2005, through December 31, 2007, OSC was authorized to receive and investigate certain USERRA claims, with DOL continuing its investigative role for others. In 2007, we evaluated the demonstration project and reported to Congress that while both DOL and OSC had policies and procedures for receiving, investigating, and resolving USERRA claims against federal executive employers since the start of the demonstration project, data for reporting outcomes were not sufficiently reliable at either agency. We recommended that the Secretary of Labor develop an internal review mechanism for all unresolved claims before they are closed and claimants are notified and establish internal controls to ensure the accuracy of data entered into DOL's database. DOL agreed with and implemented our recommendations. At the end of this demonstration project, DOL and OSC returned to the USERRA investigation and review procedures in place before the start of the demonstration project. Congress included language in the Veterans' Benefits Act of 2010 (VBA) directing OSC and DOL to establish a second demonstration project (36-month duration) for receiving, investigating, and resolving USERRA claims against federal executive employers. Similar to procedures authorized for the first demonstration project, under the current demonstration project, VETS is authorized to investigate and seek corrective action for those claims filed against federal executive agencies if the servicemember's Social Security number (SSN) ends in an even number, and OSC is authorized to investigate and seek corrective action for USERRA claims against federal executive agencies if the servicemember's SSN ends in an odd number. The legislation also directs the two agencies to submit a report to Congress and GAO describing the jointly established methods and procedures to be used in reviewing their relative performance during the demonstration project. Furthermore, VBA mandates that GAO report on the methods and procedures selected by the agencies and may provide any recommendations for improving the design of the demonstration project. The VBA directs the demonstration project to begin no later than 60 days after the GAO report is submitted to Congress and also directs GAO to conduct periodic evaluations of the demonstration project and submit to Congress a report on these evaluations.
The joint report describing the demonstration project's design for investigating and resolving USERRA claims shows that DOL and OSC have identified and agreed upon a preliminary set of performance measures. These measures will facilitate the collection of baseline information and measurement of performance related to customer satisfaction, timeliness, and cost. However, the report lacked sufficient details about the methods agencies will use to collect the data needed to report on these measures. As such, we cannot yet determine whether the resulting performance information will be reliable and will permit a later comparison of the agencies' performance. For example, the joint report did not include sufficient information to determine whether the two agencies have established a comparable process for administering a standardized customer satisfaction survey, calculating the average cost of a claim, or reporting case outcomes, such as claim granted, claim settled, no merit, or withdrawn. Also, for the purpose of measuring the average processing time of a claim, the joint report described the deadlines to be adhered to when investigating claims and reviewing claims for representation. However, the report lacked sufficient detail on how OSC will conduct its investigative and legal review in stages comparable to DOL's process. Having DOL and OSC select comparable methods and procedures for collecting and reporting their data is a critical step in ensuring the integrity of the evaluation of the demonstration project. Significant differences in the way in which the two agencies collect and report data could compromise the validity and reliability of the evaluation of this demonstration project by limiting the ability to compare the agencies' relative performance processing claims. The joint report also did not identify the steps agencies will take to ensure the accuracy and reliability of data. If data errors are substantial, they will impede the ability to draw accurate conclusions based on those data. To address these issues, we recommend that prior to the start of the demonstration project (1) the Special Counsel, as the project administrator, and (2) the Secretary of Labor, by directing the Assistant Secretary for Veterans' Employment and Training, take the following five actions: (1) To ensure that customer (i.e., servicemember) satisfaction data are collected in a way that is most likely to produce reliable information, DOL and OSC should establish and agree upon comparable methods for administering the customer satisfaction survey. The survey plan should also document what steps agencies will take to ensure adequate response rates; (2) To ensure that both agencies can document how long it takes to investigate a claim, and how long it takes to conduct a legal review, OSC should describe the actions and functions it plans to apply to each of those phases, and the agencies should agree that they have established a comparable two-step process; (3) To ensure that both agencies use comparable methods for tracking the amount of personnel time spent investigating and reviewing federal USERRA cases, and the costs of these activities including indirect costs such as administrative overhead, DOL and OSC should establish, document, and agree upon a time accounting process that distinguishes between the investigative and legal review phases and a method that assigns costs to claims processing activities; (4) Provide evidence that the agencies have identified, and agreed upon, a common set of potential case outcomes and a crosswalk of common or comparable codes assigned to each of those outcomes prior to the start of the demonstration project, such as claim granted, claim settled, no merit, or withdrawn; (5) Agree upon a controls plan and implementation strategy that will be used during the course of the demonstration project to help ensure data integrity, reliability, and accuracy.
RecommendationsOur recommendations from this work are listed below with a Contact for more information. Status will change from "In process" to "Open," "Closed - implemented," or "Closed - not implemented" based on our follow up work.
Director: Yvonne D. Jones Team: Government Accountability Office: Strategic Issues Phone: (202) 512-2717GAO-11-312R, Veterans' Reemployment Rights: Steps Needed to Ensure Reliability of DOL and Special Counsel Demonstration Project's Performance Information
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GAO-11-312R:
Uni ted States Government Accountability Office:
Washington, DC 20548:
June 10, 2011:
The Honorable Patty Murray:
Chairman:
The Honorable Richard Burr:
Ranking Member:
Committee on Veterans' Affairs:
United States Senate:
The Honorable Jeff Miller:
Chairman:
The Honorable Bob Filner:
Ranking Member:
Committee on Veterans' Affairs:
House of Representatives:
Subject: Veterans' Reemployment Rights: Steps Needed to Ensure
Reliability of DOL and Special Counsel Demonstration Project's
Performance Information:
In the wake of the ongoing conflicts in Iraq and Afghanistan,
thousands of current and former military servicemembers are undergoing
a transition between their military service and their civilian
employment. Congress enacted the Uniformed Services Employment and
Reemployment Rights Act of 1994 (USERRA)[Footnote 1] to protect the
employment and reemployment rights of federal and nonfederal employees
when they leave their employment to perform military or other
uniformed service.[Footnote 2] Among other rights, servicemembers who
meet the statutory requirements are entitled to reinstatement to the
positions they would have held if they had never left their employment
or to positions of like seniority, status, and pay. USERRA applies to
a wide range of employers, including federal, state, and local
governments as well as private-sector firms.[Footnote 3] This report
focuses on servicemembers who are employees of, prior employees of,
and applicants to, federal executive agencies.
Under USERRA, an employee who believes that his or her USERRA rights
have been violated may file a claim with the Department of Labor's
(DOL) Veterans' Employment and Training Service (VETS), which
investigates and attempts to resolve the claim. If DOL's VETS cannot
resolve the claim and the servicemember is a federal government
employee or applicant to a federal agency, DOL is to inform the
claimant of the right to have his or her claim referred to the Office
of Special Counsel (OSC)[Footnote 4] for further review and possible
OSC representation before the Merit Systems Protection Board (MSPB).
[Footnote 5]
Under a demonstration project established by the Veterans Benefits
Improvement Act of 2004 (VBIA),[Footnote 6] from February 8, 2005,
through December 31, 2007, OSC was authorized to receive and
investigate certain USERRA claims, with DOL continuing its
investigative role for others. In 2007, we evaluated the demonstration
project and reported to Congress that while both DOL and OSC had
policies and procedures for receiving, investigating, and resolving
USERRA claims against federal executive employers since the start of
the demonstration project, data for reporting outcomes were not
sufficiently reliable at either agency. Specifically, we found that
the data DOL used to track claims processing time and the data DOL and
OSC used to track case outcomes were not reliable to monitor, track,
and report on the agencies' performance. We recommended that the
Secretary of Labor develop an internal review mechanism for all
unresolved claims before they are closed and claimants are notified
and establish internal controls to ensure the accuracy of data entered
into DOL's database. DOL agreed with and implemented our
recommendations.[Footnote 7] At the end of this demonstration project,
DOL and OSC returned to the USERRA investigation and review procedures
in place before the start of the demonstration project.
Congress included language in the Veterans' Benefits Act of 2010 (VBA)
directing OSC and DOL to establish a second demonstration project (36-
month duration) for receiving, investigating, and resolving USERRA
claims against federal executive employers.[Footnote 8] Similar to
procedures authorized for the first demonstration project, under the
current demonstration project, VETS is authorized to investigate and
seek corrective action for those claims filed against federal
executive agencies if the servicemember's Social Security number (SSN)
ends in an even number, and OSC is authorized to investigate and seek
corrective action for USERRA claims against federal executive agencies
if the servicemember's SSN ends in an odd number.[Footnote 9]
Enclosure I describes in more detail how the agencies will implement
the demonstration project.
The legislation also directs the two agencies to submit a report to
Congress and GAO describing the jointly established methods and
procedures to be used in reviewing their relative performance during
the demonstration project. Furthermore, VBA mandates that GAO report
on the methods and procedures selected by the agencies and may provide
any recommendations for improving the design of the demonstration
project. The VBA directs the demonstration project to begin no later
than 60 days after the GAO report is submitted to Congress and also
directs GAO to conduct periodic evaluations of the demonstration
project and submit to Congress a report on these evaluations.
Objective, Scope, and Methodology:
Our objective was to determine the extent to which the methods and
procedures DOL and OSC selected for the demonstration project allow
for a later assessment and comparison of the agencies' relative
performance investigating and resolving USERRA claims. To address this
objective, we reviewed the proposed project design that DOL and OSC
developed and determined whether DOL and OSC selected meaningful
performance measures and comparable methods for collecting data and
reporting definitions of case outcomes.[Footnote 10] We also reviewed
the steps agencies plan to take to ensure that their data are reliable
and accurate. We reviewed agency documents including agencies'
operations manuals for processing USERRA claims, and interviewed
agency officials to aid in our determination of whether agencies
established a comparable process. After receiving the report on March
2 and analyzing it, we met with agency officials on March 17 to ask
questions about the report, discuss our preliminary analysis, and
share our preliminary observations.
We conducted our work from December 2010 to June 2011 in accordance
with all sections of GAO's Quality Assurance Framework that are
relevant to our objectives. The framework requires that we plan and
perform the engagement to obtain sufficient and appropriate evidence
to meet our stated objectives and to discuss any limitations in our
work. We believe that the information and data obtained, and the
analysis conducted, provide a reasonable basis for any findings and
conclusions in this product.
On March 22, 2011, we briefed House committee staff and on March 31 we
briefed Senate committee staff on our preliminary observations on the
DOL and OSC demonstration project design as presented in their joint
report. This report transmits the final results of our work and the
briefing slides, which are printed in enclosure II.
Summary of Findings:
The joint report describing the demonstration project's design for
investigating and resolving USERRA claims shows that DOL and OSC have
identified and agreed upon a preliminary set of performance measures.
These measures will facilitate the collection of baseline information
and measurement of performance related to customer satisfaction,
timeliness, and cost. However, the report lacked sufficient details
about the methods agencies will use to collect the data needed to
report on these measures. As such, we cannot yet determine whether the
resulting performance information will be reliable and will permit a
later comparison of the agencies' performance. For example, the joint
report did not include sufficient information to determine whether the
two agencies have established a comparable process for administering a
standardized customer satisfaction survey, calculating the average
cost of a claim, or reporting case outcomes, such as claim granted,
claim settled, no merit, or withdrawn. Also, for the purpose of
measuring the average processing time of a claim, the joint report
described the deadlines to be adhered to when investigating claims and
reviewing claims for representation. However, the report lacked
sufficient detail on how OSC will conduct its investigative and legal
review in stages comparable to DOL's process. Having DOL and OSC
select comparable methods and procedures for collecting and reporting
their data is a critical step in ensuring the integrity of the
evaluation of the demonstration project. Significant differences in
the way in which the two agencies collect and report data could
compromise the validity and reliability of the evaluation of this
demonstration project by limiting the ability to compare the agencies'
relative performance processing claims.
The joint report also did not identify the steps agencies will take to
ensure the accuracy and reliability of data. If data errors are
substantial, they will impede the ability to draw accurate conclusions
based on those data.
Recommendations for Executive Action:
To address these issues, we recommend that prior to the start of the
demonstration project:
(1) the Special Counsel, as the project administrator, and:
(2) the Secretary of Labor, by directing the Assistant Secretary for
Veterans' Employment and Training, take the following five actions:
* To ensure that customer (i.e., servicemember) satisfaction data are
collected in a way that is most likely to produce reliable
information, DOL and OSC should establish and agree upon comparable
methods for administering the customer satisfaction survey. For
example, the demonstration project should include a survey plan,
describing agreed-upon protocols for contacting and following up with
respondents. The survey plan should also document what steps agencies
will take to ensure adequate response rates.
* To ensure that both agencies can document how long it takes to
investigate a claim, and how long it takes to conduct a legal review,
OSC should describe the actions and functions it plans to apply to
each of those phases, and the agencies should agree that they have
established a comparable two-step process.
* To ensure that both agencies use comparable methods for tracking the
amount of personnel time spent investigating and reviewing federal
USERRA cases, and the costs of these activities including indirect
costs such as administrative overhead, DOL and OSC should establish,
document, and agree upon a time accounting process that distinguishes
between the investigative and legal review phases and a method that
assigns costs to claims processing activities.
* Provide evidence that the agencies have identified, and agreed upon,
a common set of potential case outcomes and a crosswalk of common or
comparable codes assigned to each of those outcomes prior to the start
of the demonstration project, such as claim granted, claim settled, no
merit, or withdrawn.
* Agree upon a controls plan and implementation strategy that will be
used during the course of the demonstration project to help ensure
data integrity, reliability, and accuracy.
See enclosure II for a more detailed discussion of our analysis and
recommendations.
Agency Comments and Our Evaluation:
We provided a draft of this report to the Associate Special Counsel
and the Secretary of Labor for their review and comment. In written
comments, which are included in enclosure III, the Chief of OSC's
USERRA Unit generally concurred with our conclusions and
recommendations. Specifically, OSC concurred with our recommendations
related to collecting and reporting customer satisfaction, timeliness,
and outcomes data. However, OSC disagreed with our recommendation
related to measuring costs, and did not directly respond to our
recommendation related to data reliability. OSC agreed with our
recommendation for measuring timeliness and said that it will work to
ensure that its 90-day investigative process is as comparable as
possible to DOL's processes. OSC also said that DOL and OSC have
agreed that the "trigger" event for the end of the 90-day
investigative phase is the date upon which the claimant is notified of
the results of the investigation and attempts to resolve the claim, as
well as the claimant's right to have OSC consider his or her claim for
possible legal presentation before the MSPB. In addition, OSC noted
that it believes that GAO should evaluate overall claim processing
time, believing that overall processing time is the most meaningful
measure for the claimant. We intend to evaluate multiple aspects of
timeliness, including overall claim processing time. We believe that
measuring the time it takes DOL and OSC to complete the different
phases of the claims process will provide useful information for
comparison and may help identify possible inefficiencies.
OSC disagreed with our recommendation to establish, document, and
agree upon a time accounting process that distinguishes between
personnel time spent during the investigative and legal review phases,
and partly disagreed with our recommendation to establish, document,
and agree upon a method for assigning costs to claims processing
activities. OSC stated that its current structure--a stand-alone
USERRA Unit--makes the distinction between the investigative and legal
review phases unnecessary, and therefore does not believe it must
establish a process that distinguishes the two activities for the
purpose of measuring personnel time. However, as we describe in this
report, OSC reported in the joint report on methods and procedures for
the demonstration project that the agency intends to distinguish
between the investigative and legal review phases for purposes of
measuring the timeliness of claims processing. As such, we maintain
that it is reasonable and appropriate for OSC to also make this
distinction for the purpose of measuring personnel costs. Capturing
the costs for each of the two phases separately would provide insights
into the factors affecting the costs of processing claims. For
example, one would be able to determine the extent to which total
costs are affected by each of the phases.
With respect to our recommendation to include indirect costs, such as
administrative overhead, when calculating the costs of processing
USERRA claims, OSC stated that indirect costs may be difficult to
accurately and comparably measure, and measuring such costs may
provide little, if any, insight into the relative costs of claims
processing. Nevertheless, OSC says it will work with DOL to identify
non-personnel-related costs that can be measured. Federal financial
accounting standards recommend that full costs, including both direct
and indirect costs, of programs and their outputs be measured when
making decisions on program effectiveness.[Footnote 11] This is
especially important when comparing the costs of similar services
performed by different entities so that the cost effect of any
differences in the way services are performed or structured can be
considered.
OSC did not respond directly to our recommendations related to data
reliability. We recommend that DOL and OSC agree upon a controls plan
and implementation strategy that will be used during the course of the
demonstration project to help ensure data integrity, reliability, and
accuracy. We also recommend that DOL and OSC develop and agree upon
methods and procedures used to test data reliability, and determine
whether these controls are being applied. OSC stated that GAO had
previously found the agency's data to be reliable and that OSC plans
to use the same methods and procedures during the demonstration
project. OSC further stated that it has agreed to consult with GAO and
DOL throughout the project to develop new or additional data quality
assurance processes, if needed. However, this new demonstration
project requires OSC to collect and report on data not previously used
or assessed by GAO, such as customer satisfaction survey results and
cost information. Also, claims and other data will be entered at
multiple locations--DOL and OSC headquarters and DOL regional offices--
and data will be entered in multiple systems. Therefore, we believe it
is critical that OSC describe the control activities the agency will
employ to ensure the reliability of customer satisfaction survey
results, claims processing times, cost data, and case outcomes prior
to the start of the demonstration project. We can then review the
agency's data reliability plan and make suggestions for improvements,
if warranted.
In written comments from DOL, which are included in enclosure IV, the
Assistant Secretary for Veterans' Employment and Training neither
agreed nor disagreed with our recommendations, but discussed actions
that DOL is taking to address the recommendations.
In commenting on our recommendation to establish and agree upon
comparable methods for administering a customer satisfaction survey,
DOL said together with OSC it is presently working to develop a survey
that will objectively measure overall public satisfaction with the
quality of the service provided under the demonstration project.
Regarding our recommendation that the agencies agree on a comparable
two-step process, DOL said it understands that OSC is working to make
its process as comparable as possible to DOL's to allow for timeliness
comparisons. For its part, DOL said that it currently maintains
documentation on the length of its USERRA investigations, as well as
legal reviews conducted subsequent to claimants' requests for referral
to OSC.
In commenting on our recommendation to use comparable methods for
tracking personnel time and assigning costs to processing claims
activities, DOL said it recommends that the project focus on salary
and benefits costs for personnel engaged in the demonstration project,
and the costs of training and travel associated with the project. DOL
further stated that these costs are currently tracked and validated
through automated payroll record and travel voucher systems. DOL also
said it intends to explore the potential for using a case and time
tracking system similar to the Veterans Administration's Veterans
Appeals Control and Locator System, or develop its own, and will work
with OSC as it explores these options. As discussed above in our
response to OSC's comments, we maintain that DOL and OSC should
document and agree upon a method that assigns costs, including
indirect costs, to USERRA claims processing activities, and further,
is consistent with federal financial accounting standards.
In commenting on our recommendation to develop a mutually agreed-upon
crosswalk of case outcome codes, DOL said that it intends to work with
OSC to develop a joint crosswalk for both case opening and closing
issues. DOL further stated that it believes that outcome effectiveness
measures must include quality issues, in addition to timeliness and
cost.
With respect to our recommendations related to data reliability, DOL
stated that it and OSC have agreed to utilize an operations manual
that was developed in an earlier demonstration project that includes a
controls strategy to ensure data integrity, reliability, and accuracy.
As part of our follow up, we contacted OSC to inquire about an
agreement made with DOL to use a manual developed during a previous
demonstration project. The Chief of OSC's USERRA Unit subsequently
reviewed the documents provided to us by DOL and stated that, while
some of the same case transfer/tracking procedures might be applicable
during the upcoming demonstration project, it is not clear that the
documents include a controls strategy to ensure data integrity,
reliability, and accuracy. Therefore, we maintain that DOL and OSC
need to agree upon a controls plan and need to develop and agree upon
methods and procedures to test data reliability.
We will send copies of this report to the Secretary of Labor and the
Special Counsel, and other interested parties. This report will also
be available at no charge on GAO's Web site at [hyperlink,
http://www.gao.gov].
If you have any questions on this report, please contact me at (202)
512-2717 or jonesy@gao.gov. Contact points for our offices of
Congressional Relations and Public Affairs may be found on the last
page of this report. Staff who made key contributions to this report
are listed in enclosure V.
Signed by:
Yvonne D. Jones:
Director, Strategic Issues:
Enclosures:
I: Background:
II: Findings and Recommendations:
III: Comments from the Office of Special Counsel:
IV: Comments from the Department of Labor:
V: GAO Contact and Staff Acknowledgments:
VI: Related GAO Products:
[End of section]
Enclosure I: Background:
The Uniformed Services Employment and Reemployment Rights Act of 1994
(USERRA) was enacted as a means to encourage noncareer service in the
uniformed services by reducing the disruption that servicemembers
often face when returning to the civilian workforce and to prohibit
discrimination against individuals based upon their uniformed service.
Under USERRA, an employee or applicant for employment who believes
that his or her USERRA rights have been violated may file a complaint
with the Department of Labor‘s (DOL) Veterans‘ Employment and Training
Service (VETS), which is the entity that investigates and attempts to
resolve the complaint. If VETS cannot resolve the complaint, DOL is to
inform the complainant of the right to request to have his or her
complaint referred to the Department of Justice (DOJ) or the Office of
Special Counsel (OSC). A complaint is referred to DOJ if it involves
state or private employers or to OSC if it involves a federal
executive agency. If the servicemember elects to have the complaint
referred, DOJ and OSC then determine whether to initiate legal action
against the employer.[Footnote 12] In its fiscal year 2009 annual
report to Congress, which is the most recent report available, VETS
reported that it reviewed 1,431 new USERRA cases for the year and it
referred 175 cases to DOJ and 41 cases to OSC.[Footnote 13] For fiscal
year 2008, VETS reported that it reviewed 1,389 unique USERRA cases,
and it referred 100 cases to DOJ and 15 cases to OSC.[Footnote 14]
Earlier legislation required an OSC and DOL demonstration project
similar to the one directed by the Veterans‘ Benefits Act of 2010
(VBA). Under a demonstration project established by the Veterans
Benefits Improvement Act of 2004 (VBIA),[Footnote 15] from February 8,
2005, through December 31, 2007, OSC was authorized to receive and
investigate certain USERRA claims, with DOL continuing its
investigative role for others. VBIA also reinstated the requirement
that the Secretary of Labor in consultation with the U.S. Attorney
General and the Special Counsel prepare and transmit a USERRA annual
report to Congress on, among other matters, the number of USERRA
claims reviewed by DOL along with the number of claims referred to DOJ
or OSC. Further, VBIA mandated that we conduct periodic evaluations of
the demonstration project and submit a report to Congress. In 2007, we
reported to Congress that while both DOL and OSC had policies and
procedures for receiving, investigating, and resolving USERRA claims
against federal executive employers since the start of the
demonstration project, data for reporting outcomes were not
sufficiently reliable at either agency. Specifically, we found that
the data DOL used to track claims processing time and the data DOL and
OSC used to track case outcomes were not reliable to monitor, track,
and report on the agencies‘ performance. We recommended that the
Secretary of Labor develop an internal review mechanism for all
unresolved claims before they are closed and claimants are notified
and establish internal controls to ensure the accuracy of data entered
into DOL‘s database. DOL agreed with and implemented our
recommendations.[Footnote 16]
Similar to procedures authorized for the first demonstration project,
under the current demonstration project, VETS is authorized to
investigate and seek corrective action for those claims filed against
federal executive agencies if the servicemember‘s Social Security
number (SSN) ends in an even number, and OSC is authorized to
investigate and seek corrective action for USERRA claims against
federal executive agencies if the servicemember‘s SSN ends in an odd
number.[Footnote 17] Figure 1 depicts USERRA claims‘ processing under
the demonstration project.
OSC‘s current responsibility under USERRA for conducting an
independent review of certain claims after they are investigated by
VETS remains unchanged during the demonstration project. For those
claims that VETS investigates but cannot resolve, the claimant may
request to have his or her USERRA claim referred to OSC. Before
sending the referred claim to OSC, VETS prepares a memorandum of
referral (MoR), which it sends with the investigative file to a VETS
regional office for review. The regional office then conducts a
supervisory review and sends the file to the DOL‘s Office of the
Solicitor (SOL), which prepares a legal analysis of the claim and then
refers the claim to OSC. OSC reviews the case file and, if necessary,
conducts further research and analysis. If OSC determines that the
claimant is entitled to relief under USERRA, OSC may offer to act as
attorney for the claimant and begin negotiations with the claimant‘s
federal executive employer. If efforts to resolve the claim are
unsuccessful, OSC may represent the claimant before the Merit Systems
Protection Board (MSPB).
The required time frames to complete certain claims processing steps
under USERRA remain in place during the demonstration project. Under
USERRA, DOL is required to investigate and attempt to resolve USERRA
claims within 90 days of receipt, unless the claimant agrees to an
extension. Under the demonstration project, the same 90-day time limit
also applies to OSC. If DOL‘s investigation does not resolve the case
and the claimant requests to have the claim referred to OSC, DOL is
required to refer the claim to OSC within 60 days of receiving the
request, unless the claimant agrees to an extension. Once OSC receives
that referred claim from DOL, it has 60 days to review the file and
notify the claimant as to OSC‘s decision to offer representation
before the MSPB, unless the claimant agrees to an extension. In
instances where OSC finds that a claim does not have merit, it is to
inform the servicemember of its decision not to represent him or her
before the MSPB.
Figure 1: USERRA Claims Processing under the Demonstration Project:
[Refer to PDF for image: process illustration]
Claimant submits claim (Form 1010) electronically or hard copy:
DOL/VETS:
1) Odd-numbered claim?[A]
If yes, go to step 2;
If no, go to step 3.
2) Refer odd-numbered cases to OSC[A];
Go to step 10.
3) Even-numbered claim investigated[A].
4) Claim resolved?
If yes, go to step 5;
If no, go to step 6.
5) Claimant is notified of resolution.
6) Claimant is notified that claim is unresolved and of right of
referral to OSC.
Steps 3 through 6: 90 days.
7) If claimant requests referral to OSC, VETS investigator prepares
memorandum of referral (MOR).
8) VETS regional office reviews MoR.
9) DOL Solicitor conducts legal review, prepares analysis and
representation recommendation.
Steps 7 through 9: 60 days.
OSC:
10) Odd-numbered (or PPP[A]) claim investigated.
11) Claim resolved?
If yes, go to step 12;
If no, go to step 13.
12) Claimant notified of resolution.
13) Claimant notified of investigation results and of right to have
OSC consider claim for possible representation before MSPB.
Steps 10 through 13: 90 days.
14) OSC reviews investigative file.
15) OSC determines if claim has merit?
If yes, go to step 16;
If no, go to step 17.
16) OSC attempts resolution, including offering representation before
MSPB.
17) Claimant informed of OSC decision and of option to file claim with
MSPB without OSC representation.
Investigative process under the demonstration project:
Steps 1-6 and 10-13.
Referral phase under USERRA:
Steps 7-9 and 14-17.
Source: GAO (data); Art Explosion (images).
[A] If, during initial processing or investigation phase, VETS
personnel identify a possible Prohibited Personnel Practice (PPP)
case, VETS and OSC will jointly determine at what point, if at all,
the case should be transferred to OSC for investigation.
[End of figure]
Enclosure II: Findings and Recommendations:
Veterans‘ Reemployment Rights:
Steps Needed to Ensure Reliability of DOL and Special Counsel
Demonstration Project‘s Performance Information:
Objective:
Determine the extent to which the methods and procedures selected by
DOL and OSC for the demonstration project allow for a later assessment
and comparison of the agencies‘ relative performance investigating and
resolving USERRA claims.
Criteria:
DOL and OSC must use comparable methods for collecting and reporting
data to ensure that the resulting performance information will be
reliable, and allow for a later assessment and comparison of the
agencies‘ relative performance. According to GAO guidance on designing
program evaluations, a well-documented data-collection plan can help
ensure that both agencies collect adequate, accurate, and timely
performance information, which in turn can facilitate comparisons of
customer satisfaction, the average time it takes to process a claim,
and the average cost of processing a claim. At a minimum, data-
collection plans should detail the type and source of data necessary
to evaluate various dimensions of the demonstration project, methods
for data collection, and the timing and frequency of data collection.
Methods for Collecting and Reporting Data:
What GAO Recommends:
To ensure that customer (i.e., servicemember) satisfaction data are
collected in a way that is most likely to produce objective and
reliable performance information, DOL and OSC should establish and
agree upon comparable methods for administering the customer
satisfaction survey. For example, the demonstration project should
include a survey plan, describing agreed-upon protocols for contacting
and following up with respondents. The survey plan should also
document what steps the agencies will take to ensure adequate and
comparable response rates.
To ensure that both agencies can document how long it takes them to
investigate a claim and how long it takes them to conduct a legal
review, OSC should describe the actions and functions it plans to
apply to each of those phases, and the agencies should agree that they
have established a comparable two-step process before the start of the
demonstration project.
To ensure that both agencies use comparable methods for tracking the
amount of personnel time spent investigating and reviewing federal
USERRA cases, and the costs of these activities including indirect
costs such as administrative overhead, DOL and OSC should establish,
document, and agree upon a time-accounting process that distinguishes
between the investigative and legal review phases and a method that
assigns costs, including indirect costs, to claims processing
activities.
To facilitate a later assessment and comparison of the agencies‘
relative performance across similar types of cases, DOL and OSC should
provide evidence that the agencies have identified and agreed upon a
common set of potential case outcomes and a crosswalk of common or
comparable codes assigned to each of those outcomes prior to the start
of the demonstration project, such as claim granted, claim settled, no
merit, or withdrawn.
Joint Report Lacked Sufficient Details on Approach for Assessment and
Comparison of DOL‘s and OSC‘s Relative Performance:
In the joint report to Congress describing the design of the
demonstration project for investigating and resolving USERRA claims,
DOL and OSC identified and agreed upon a preliminary set of
performance measures. These measures cover key aspects of project
performance and signal the agencies‘ intention to collect and submit
performance information related to customer satisfaction, timeliness,
and cost. However, the joint report lacked sufficient details about
the methods agencies will use to collect the data needed to report on
these measures. As such, we cannot yet determine whether the resulting
performance information will be reliable.
Customer Satisfaction:
The joint report stated that agencies will work together to design a
customer satisfaction survey that they will administer to claimants,
but did not provide sufficient details describing how the survey will
be administered to collect an adequate and comparable number of
responses.
* The agencies reported that they intend to distribute a standardized
survey to claimants 30 days after the case is closed. The survey is
likely to incorporate the following elements: courtesy and
professionalism of agency investigative personnel, responsiveness to
claimant, thoroughness of investigation, and clarity of verbal and
written communications. The agencies reported that they will design
the survey in such a way that it will allow for a comparison of
customer satisfaction rates for like cases, such as cases resolved
with full relief as opposed to cases resolved with partial or no
relief.
* However, the agencies did not report sufficient details about how
they will administer the survey, including how they will contact
respondents, or determine and achieve an adequate survey response
rate. According to GAO guidance on survey design, there is a high
potential for error if surveys are not designed and administered
properly. To that end, it is important that questions are clearly
written and easy to understand and answer. Pretesting a survey is a
critical step to ensure that the survey communicates what it was
intended to communicate, that it will be uniformly interpreted by the
target population, and that it will be free of design flaws that could
lead to inaccurate answers. It is also important to identify what
constitutes a reasonable response rate and anticipate how to encourage
respondents to complete the survey because a high or disproportionate
nonresponse rate can threaten the credibility or generalizability of
the findings.
* DOL and OSC officials responsible for implementing the demonstration
project acknowledged that developing an objective survey will be a
challenge for them because they have limited experience designing and
administering surveys. However, they also said they can identify
colleagues within their respective agencies who have relevant
experience designing and administering surveys intended to measure
customer satisfaction, and that they intend to consult with them and
complete the design of the survey prior to the start of the
demonstration project.
Timeliness:
For the purpose of measuring the average processing time of a claim,
the joint report described the agencies‘ agreement to establish a two-
step process and the deadlines to be adhered to when processing USERRA
claims. However, it did not provide sufficient detail to ensure that
the agencies will have a comparable two-step process that will allow
for a comparison of their relative performance.
* The agencies agreed to use and track the same completion dates such
as the date a claim is successfully resolved and closed, and the date
a claimant is notified of the right to have claim considered for
possible representation.
* However, in the joint report, OSC did not fully describe its
investigative and legal review process. When DOL‘s VETS cannot resolve
a claim within the required 90 days (unless it receives an extension),
and the claimant requests to have the claim referred to OSC, DOL‘s
VETS will transfer the investigative file to DOL‘s Office of the
Solicitor. After receiving the request for referral, DOL has 60 days
(unless it receives an extension) to review the investigative file and
make a recommendation regarding representation before referring the
claim to OSC. For the purpose of the demonstration project, OSC
reported that it intends to develop a two-step process for
investigating claims and conducting a legal review that mirrors DOL‘s
two-step process. However, OSC has not yet described which actions and
functions will take place during the investigation phase and which
will take place during the legal review phase. In the joint report,
OSC also did not describe what trigger event it would use to
distinguish these phases.
Cost:
The joint report described the agencies‘ intent to measure the average
cost per claim, however it did not document in sufficient detail the
methods and procedures each agency will use to calculate the total
costs of processing USERRA claims.
* To facilitate the comparison of similar functions, DOL reported that
it intends to separately measure the costs associated with
investigating claims and the costs associated with its legal review
process. OSC reported that its unitary structure does not allow it to
separate activities and costs associated with these two functions.
However, OSC also reported that it plans to differentiate between
these activities for the purposes of measuring the time it takes to
process claims.
* Officials from both agencies acknowledged that a key driver of
claims processing costs is personnel time; however, the report did not
describe in sufficient detail how either agency will track personnel
time spent investigating and reviewing claims. DOL‘s VETS and DOL‘s
Office of the Solicitor personnel process both federal and nonfederal
USERRA claims, therefore DOL reported that it will develop and
implement a time accounting process to document the proportion of time
personnel spent investigating and reviewing federal claims as opposed
to nonfederal claims. OSC reported that it will expand the current
USERRA Unit, and that personnel in the unit will exclusively process
federal USERRA claims.
* The joint report also did not describe the methods and procedures
agencies will use for assigning direct costs and allocating indirect
costs?such as administrative overhead?to USERRA processing activities.
DOL and OSC officials responsible for implementing the demonstration
project said that they have not yet consulted with internal budget or
financial management experts, who could help determine how to
accurately calculate the indirect costs associated with processing a
claim. However, they said they would meet with these experts from
their respective agencies prior to the start of the demonstration
project.
Definitions of Case Outcomes:
DOL and OSC reported that they will work to ensure that case outcomes
are described in a consistent manner, but the agencies have not yet
established or agreed to a crosswalk of common or comparable case
outcome definitions.
* Both DOL and OSC use case disposition codes in their respective case
management systems to indicate the basis on which a case was closed,
and whether a claimant received or was offered any of the relief
requested. Some examples of case outcomes include claim granted, claim
settled, no merit, or withdrawn. However, differences exist between
the range of codes used by both agencies and their definitions.
* The joint report states that agencies will share their case outcome
code lists and descriptions, and will attempt to reconcile any
discrepancies prior to the start of the demonstration project. The
report also described agencies‘ intent to prepare a crosswalk to
facilitate a comparison of case outcomes. Such a crosswalk will enable
Congress and others to compare average claim processing times and
costs for cases with similar attributes such as cases with merit as
opposed to those deemed to be without merit.
[End of Methods for Collecting and Reporting Data]
Data Reliability:
Criteria:
GAO‘s Standards for Internal Control in the Federal Government
requires that agencies establish a system to ensure the accuracy of
data that they process. These standards state that such a system
should employ a variety of control activities to ensure accuracy and
completeness, such as using edit checks in controlling data entry and
performing data validation and reviewing and testing to identify
erroneous data, among other activities. Moreover, we found and
reported in the past that the data DOL used to track claims processing
time and the data DOL and OSC used to track case outcomes were not
sufficiently reliable to monitor, track, and report on the agencies‘
performance.
What GAO Recommends:
Prior to the start of the demonstration project, agencies need to
agree upon a controls plan and implementation strategy that will be
used throughout the demonstration project to help ensure data
integrity, reliability, and accuracy. Also, DOL and OSC need to
develop and agree upon methods and procedures used to test data
reliability, and determine whether these controls are being applied.
Joint Report Did Not Identify Steps to Ensure Data Reliability:
The joint report stated that DOL and OSC intend to take steps to
ensure the accuracy and consistency of data during the demonstration
project, but it did not identify the control activities agencies will
take to ensure the reliability of the various systems agencies will
use to track federal USERRA claims and gather performance data.
* In the report, both agencies noted that they will provide data from
their respective claim tracking systems and access to claim files. The
report also stated that both agencies will consult with GAO to develop
and implement new or additional quality-assurance processes. However,
the report did not describe the control activities agencies will
employ to ensure the reliability of customer satisfaction survey
results, claims processing times, cost data or case outcomes.
* The joint report also did not address what methods and procedures
will be used to ensure the consistency of either claims data or
performance-related data gathered specifically for the demonstration
project. Because claims and other data will be entered at multiple
sites including DOL and OSC headquarters, and DOL‘s VETS regional
offices, and data will be entered in multiple systems (DOL E-1010, DOL‘
s VETS UIMS, and OSC2000), consistent data entry rules and controls
should be developed and agreed upon by both agencies. Inconsistent
interpretation of data entry rules can lead to data that, taken as a
whole, are unreliable.
[End of Data Reliability]
[End of section]
Enclosure III: Comments from the Office of Special Counsel:
U.S. Office Of Special Counsel:
1730 M Street, N.W., Suite 218:
Washington, D.C. 20036-4505:
202-254-3600:
April 29, 2011:
Yvonne D. Jones:
Director, Strategic Issues:
U.S. Government Accountability Office:
441 G St., NW:
Washington, DC 20548:
Re: Response to GAO Draft Report GAO-11-312R:
Dear Ms. Jones:
Thank you for the opportunity to comment on Government Accountability
Office (GAO) Draft Report GAO-11-312R, Veterans' Reemployment Rights:
Department of Labor and Office of Special Counsel Should Take Steps to
Ensure the Reliability of Information Needed to Assess Agencies'
Performance (GAO Draft Report). This report addresses the extent to
which the methods and procedures selected by the Office of Special
Counsel (OSC) and the Department of Labor (DOL) for the USERRA
demonstration project will enable GAO to assess the relative
performance of the two agencies in investigating and resolving federal
USERRA claims.[Footnote 1]
OSC generally concurs with the conclusions and recommendations
contained in the report, with certain caveats. First, we agree that
OSC and DOL should establish and agree upon comparable methods for
administering the customer satisfaction survey required by the project.
We note, however, that OSC and DOI, have preliminarily agreed upon
many aspects of administering the survey, including timing, elements
to be measured, and correlation of survey results to case outcomes
(i.e., whether the claimant was offered or received any of the relief
he or she requested).[Footnote 2] During the exit conference with GAO
on March 30, 2011, OSC and DOL also agreed to consider contacting non-
respondents to determine the extent to which their views are
consistent with those who respond to the survey.
In its draft report. GAO also makes other specific recommendations
regarding the survey, including that DOL and OSC establish and agree
upon a survey plan that describes protocols for contacting and
following up with respondents and ensures adequate survey response
rates.[Footnote 3]
While OSC is committed to these goals, given our limited resources and
expertise in this area, we are exploring the feasibility of having an
outside entity develop and administer the survey, in consultation with
DOL.
Second, GAO recommends that OSC describe the actions and functions it
plans to apply to the 90-day investigative period and 60-day legal
review period for USERRA claims to ensure that the average processing
time of claims is measured accurately and in a manner comparable to
DOL.[Footnote 4] As stated in the Joint Report, the agencies plan to
measure and report timeliness with regard to both the 90-day and 60-
day periods.[Footnote 5] OSC also believes that GAO should evaluate
overall claim processing time, i.e., the total time from claim receipt
to final disposition, which is the most meaningful measure for the
claimant.[Footnote 6] Nevertheless, DOL and OSC agree that the
"trigger" event for the end of the 90-day investigative phase is the
date upon which the claimant is notified of the results of the
investigation and attempts to resolve the claim, as well as their
right to have OSC consider their claim for possible legal
representation before the Merit Systems Protection Board (MSPB).
[Footnote 7] OSC will work to ensure that its 90-day process is as
comparable as possible to DOL's to allow for accurate comparisons
between the two agencies.
Third, to measure the time and costs associated with handling federal
USERRA claims, GAO recommends that OSC and DOL agree to establish a
time accounting process that distinguishes between the investigative
and legal review periods for such claims.[Footnote 8] As we have
previously explained, however, OSC's current structure makes such a
distinction unnecessary. Because DOL transfers some USERRA claims from
its investigative component, the Veterans Employment and Training
Service (VETS), to its legal review component, the Solicitor's Offices
(SOL), such a time accounting process may be necessary for DOL to
accurately measure time and costs. In contrast, OSC has a stand-alone
USERRA Unit, which will conduct both the investigative and legal
review phases of federal USERRA claims received during the project.
Therefore, OSC does not believe that it must establish a time
accounting process that distinguishes between the two time periods.
In its draft report, GAO also recommends that OSC and DOL allocate
indirect costs, such as administrative overhead, to USERRA claims
processing activities. As stated during the exit conference, OSC and
DOI, agree that personnel costs make up the vast majority of the costs
associated with handling USERRA claims and, therefore, should be
tracked and measured for purposes of determining relative cost.
[Footnote 9] However, as explained during the exit conference,
indirect costs may be difficult (if not impossible) to accurately and
comparably measure. Moreover, measuring such costs may provide little
if any additional insight into the relative costs of USERRA claims
processing at the two agencies. Nevertheless, OSC will work with DOL
to identify any non-personnel related costs that can be accurately and
comparably measured during the project. OSC also welcomes any specific
guidance from GAO about the types of indirect costs it believes should
be measured and how to accurately measure such costs.
Fourth, as GAO recommends, OSC will work with DOL to identify and
agree upon a common set of potential claim outcomes, and prepare a
crosswalk of common or comparable data entry codes assigned to each
outcome, prior to the start of the project.[Footnote 10] As explained
in the Joint Report, we plan to ensure that claim outcomes are
described in a consistent manner, including by adding or modifying
data entry codes if necessary.[Footnote 11]
Last, GAO recommends that prior to the start of the project, OSC and
DOL agree upon a controls plan and implementation strategy to help
ensure data integrity, reliability, and accuracy throughout the
project. As we noted during the exit conference, GAO has previously
found OSC's data to be reliable, and OSC plans to use the same or
similar data entry, quality assurance, and collection methods and
procedures during the project.[Footnote 12] OSC has also agreed to
consult with GAO and DOI, throughout the project to develop new or
additional data quality assurance processes if existing processes are
deemed insufficient or unreliable.[Footnote 13] Finally, prior to the
start of the project, OSC plans to attend a data reliability seminar
conducted by GAO's Division of Applied Research and Methods.
In closing, we appreciate your efforts to ensure that the USERRA
demonstration project satisfies Congress's goals and we thank you for
the opportunity to comment on your draft report.
Sincerely,
Signed by:
Patrick H. Boulay:
Chief, USERRA Unit:
Enclosure III Footnotes:
[1] Section 105 of the Veterans' Benefits Act of 2010, Pub. L. No. 11-
175 (VBA), establishes a 36-month demonstration project under which
OSC, rather than DOL, will receive and investigate certain claims
involving Federal executive agencies under the Uniformed Services
Employment and Reemployment Rights Act (USERRA). Pursuant to the VBA,
in March 2011, OSC and DOL, issued a report to GAO and Congress, Joint
Report on Methods & Procedures for Demonstration Project for Referral
of USERRA Claims against Federal Agencies to the U.S. Office of
Special Counsel (Joint Report).
[2] See Joint Report, pp. 8-9.
[3] See GAO Draft Report, p.4.
[4] Id.
[5] See Joint Report, pp. 9-11.
[6] For DOL, final disposition is closure, resolution, or referral to
OSC: for OSC, final disposition is closure, resolution, or a
representation decision.
[7] Both agencies will also notify claimants of their right to take
their claim directly to the MSPB.
[8] See GAO Draft Report, p.5.
[9] OSC estimates that approximately 90% of the costs associated with
processing USERRA claims are personnel-related; DOL has made a similar
estimate.
[10] See GAO Draft Report, p. 5.
[11] See Joint Report, p. 12.
[12] See GAO Report Nos. 07-0907 and 11-55.
[13] See Joint Report, p. 13.
[End of section]
Enclosure IV: Comments from the Department of Labor:
U.S. Department of Labor:
Assistant Secretary for Veterans' Employment and Training:
Washington, D.C. 20210:
May 13, 2011:
Ms. Yvonne D. Jones:
Director, Strategic Issues:
United States Government Accountability Office (GAO):
Washington, D.C. 20548:
RE: GAO Draft Report 11-312R:
Dear Ms. Jones:
On behalf of the Secretary of Labor, thank you for the opportunity to
review and comment on the Government Accountability Office (GAO) draft
Report 11-312R on the USERRA Demonstration Project Mandate (Code
450885). Pursuant to the Veterans' Benefits Act of 2010, P.L. 111-275,
Congress has directed that the Department of Labor (DOL) and the U.S.
Office of Special Counsel (OSC) establish a three-year demonstration
project designed to assess and compare the agencies' performance
investigating and resolving claims against federal executive agencies
under the Uniformed Services Employment and Reemployment Rights Act of
1994 (USERRA), 38 U.S.C. §§ 4301-4335. Over the course of this
project, DOL's Veterans' Employment and Training Service (VETS) will
provide OSC with claims it receives that are filed against federal
executive agencies that have Servicernembers' social sedulity numbers
that end in an odd number, and OSC will undertake to investigate and
resolve the issues raised in those claims.
GAO met with DOL/VETS and OSC on March 30, 2011, to conduct an exit
conference and share its recommendations for the project. I am pleased
to offer DOL/VETS' comments to each of GAO's recommendations below.
DOL and OSC should establish and agree upon comparable methods and
procedures for collecting customer (i.e., Servicemember) satisfaction,
timeliness, and cost data. Specifically,
* To ensure that customer satisfaction data is collected in a way that
is most likely to produce reliable information, DOL and OSC should
establish and agree upon comparable methods for administering the
customer satisfaction survey. For example, the demonstration project
should include a survey plan, describing agreed-upon protocols for
contacting and following-up with respondents. The survey plan should
also document what steps agencies will take to ensure adequate
response rates.
DOL/VETS and OSC are presently working on development of a customer
satisfaction survey that will objectively measure overall public
satisfaction with the quality of the service the agencies provide
under the project. DOL/VETS anticipates seeking clearance for any
survey instrument and obtaining Paperwork Reduction Act clearance for
the survey through the Office of Management and Budget.
* To ensure that both agencies can document how long it takes to
investigate a claim, and how long it takes to conduct a legal review,
OSC should describe the actions and functions it plans to apply to
each of those phases, and the agencies should agree that they have
established a comparable two-step process.
DOL/VETS understand that OSC is working to make its process as
comparable as possible to DOL's to allow for the necessary timeliness
comparisons. For its part, DOL/VETS currently maintains documentation
on the length of its USERRA investigations, as well as legal reviews
conducted subsequent to claimants' requests for referral to OSC.
Validation of the length of a DOL/VETS investigation, including a
claimant's approval of an extended investigation; the request for a
case to be referred to the OSC; and the amount of time that a case
remains in a referral status are verified through VETS' Veterans
Investigative Preference and Employment Rights System (VIPERS.) The
VIPERS is an electronic data base used to administratively manage
USERRA and Veterans' Preference cases, including the opening, transfer
and closing of the cases that are assigned to the OSC.
* To ensure that both agencies use comparable methods for tracking the
amount of personnel time spent investigating and reviewing federal
USERRA cases, and calculating indirect costs, such as administrative
overhead, the DOL and OSC should establish, document, and agree upon a
time accounting process that distinguishes between the investigative
and legal review phases and an allocation method that apportions
indirect costs to claims processing activities.
DOL/VETS recommends that the project focus on salary and benefits
costs for personnel engaged in the project; and the costs of training
and travel associated with the project investigations. These costs are
currently tracked and validated through automated payroll record and
travel voucher systems. DOLJVETS intends to explore the potential for
use of a case and time tracking system similar to the Veterans
Administration's Veterans Appeals Control and Locator System (VACOLS),
or alternatively develop its own time tracking program, and will work
with OSC as we explore these options.
* Provide evidence that they have identified, and agreed upon a common
set of potential case outcomes and a crosswalk of common or comparable
codes assigned to each of those outcomes prior to the start of the
demonstration project, such as claim granted, claim settled, no merit,
or withdrawn.
DOL/VETS intends to work with OSC to develop a joint crosswalk for
both case opening and closing issues that will allow both agencies to
compare and evaluate the case processing time and costs. In this
regard, DOL/VETS believes that outcome effectiveness measures must
include quality issues, in addition to timeliness and cost. DOL/VETS
intends to measure and track the quality of its USERRA investigations
during the project and believes that such measurements are critical in
assessing each agency's overall effectiveness.
DOL/VETS has developed its own quality assessment tool, based on the
results of a recent contractor-led Lean Six Sigma study. DOL/VETS'
management strongly believes that, in order to meet Congress' intended
goals in establishing this demonstration project, the quality of each
investigation must be objectively measured, and that any such
evaluation contain measurable outcomes.
* Agree upon a controls plan and implementation strategy that will be
used during the course of the demonstration project to help ensure
data integrity, reliability. and accuracy.
DOL/VETS and OSC have agreed to utilize an operations manual developed
in an earlier demonstration project that includes a controls strategy
to be used during the course of the current demonstration project to
ensure data integrity, reliability and accuracy.
The Department of Labor appreciates the opportunity to provide its
views on the subject GAO draft report, and looks forward to addressing
GAO's recommendations in the manner detailed above.
Sincerely,
Signed by:
[Illegible] for:
Raymond M. Jefferson:
[End of section]
Enclosure V: GAO Contact and Staff Acknowledgments:
GAO Contact:
Yvonne D. Jones, (202) 512-2717 or jonesy@gao.gov.
Staff Acknowledgments:
In addition to the contact listed above, key contributors to this
report were Trina V. Lewis, Assistant Director; Jessica Nierenberg,
Analyst-in-Charge; Marcus Corbin; Laura Miller Craig; Elizabeth Curda;
Karin Fangman; Mark Kehoe; Cynthia Saunders; Bernice Steinhardt;
Tamara Stenzel; Jessica Thomsen; Kate Hudson Walker; Jack Warner; and
Greg Wilmoth.
[End of section]
Enclosure VI: Related GAO Products:
Reports Related to Veterans' Reemployment Rights
Servicemember Reemployment: Agencies Are Generally Timely in
Processing Redress Complaints, but Improvements Needed in Maintaining
Data and Reporting. [hyperlink,
http://www.gao.gov/products/GAO-11-55]. Washington, D.C.: October 22,
2010.
Military Personnel: Improvements Needed to Increase Effectiveness of
DOD's Programs to Promote Positive Working Relationships between
Reservists and Their Employers. [hyperlink,
http://www.gao.gov/products/GAO-08-981R]. Washington, D.C.: August 15,
2008.
DOD Financial Management: Adjudication of Butterbaugh Claims for the
Restoration of Annual Leave or Pay. [hyperlink,
http://www.gao.gov/products/GAO-08-948R]. Washington, D.C.: July 28,
2008.
Military Personnel: Federal Agencies Have Taken Actions to Address
Servicemembers' Employment Rights, but a Single Entity Needs to
Maintain Visibility to Improve Focus on Overall Program Results.
[hyperlink, http://www.gao.gov/products/GAO-08-254T]. Washington,
D.C.: November 8, 2007.
Military Personnel: Considerations Related to Extending Demonstration
Project on Servicemembers' Employment Rights Claims. [hyperlink,
http://www.gao.gov/products/GAO-08-229T]. Washington, D.C.: October
31, 2007.
Military Personnel: Improved Quality Controls Needed over Servicemembers
Employment Rights Claims at DOL. [hyperlink,
http://www.gao.gov/products/GAO-07-907]. Washington, D.C.: July 20,
2007.
Office of Special Counsel Needs to Follow Structured Life Cycle
Management Practices for Its Case Tracking System. [hyperlink,
http://www.gao.gov/products/GAO-07-318R]. Washington, D.C.: February
16, 2007.
Military Personnel: Additional Actions Needed to Improve Oversight of
Reserve Employment Issues. [hyperlink,
http://www.gao.gov/products/GAO-07-259]. Washington, D.C.: February 8,
2007.
Military Personnel: Federal Management of Servicemember Employment
Rights Can Be Further Improved. [hyperlink,
http://www.gao.gov/products/GAO-06-60]. Washington, D.C.: October 19,
2005.
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/products/GAO-05-74R]. Washington, D.C.:
October 6, 2004.
Selected Reports Related to Performance Management:
Managing for Results: Opportunities to Strengthen Agencies' Customer
Service Efforts. [hyperlink, http://www.gao.gov/products/GAO-11-44].
Washington D.C.: October 27, 2010.
Streamlining Government: Opportunities Exist to Strengthen OMB's
Approach to Improving Efficiency. [hyperlink,
http://www.gao.gov/products/GAO-10-394]. Washington D.C.: May 7, 2010.
Managing for Results: Enhancing Agency Use of Performance Information
for Management Decision Making. [hyperlink,
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2005.
Results-Oriented Government: GPRA Has Established a Solid Foundation for
Achieving Greater Results. [hyperlink,
http://www.gao.gov/products/GAO-04-38]. Washington, D.C.: March 10,
2004.
Tax Administration: IRS Needs to Further Refine Its Tax Filing Season
Performance Measures. [hyperlink,
http://www.gao.gov/products/GAO-03-143]. Washington, D.C.: November
22, 2002.
Executive Guide: Effectively Implementing the Government Performance
and Results Act. [hyperlink,
http://www.gao.gov/products/GAO/GGD-96-118]. Washington, D.C.: June
1996.
Selected Reports Related to Applied Research and Methods Applied
Research and Methods: Assessing the Reliability of Computer-Processed
Data. [hyperlink, http://www.gao.gov/products/GAO-09-680G].
Washington, D.C.: July 2009.
Program Evaluation and Methodology Division: Developing and Using
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[End of section]
Footnotes:
[1] Pub. L. No. 103-353, 108 Stat. 3149 (Oct. 13, 1994) (codified at
38 U.S.C. §§ 4301-4335). USERRA is the most recent in a series of laws
protecting veterans' employment and reemployment rights going back to
the Selective Training and Service Act of 1940. Pub. L. No. 783, 54
Stat. 885, 890 (Sept. 16, 1940).
[2] In addition to those serving in the armed forces and the Army and
Air National Guards (when engaged in active duty for training,
inactive duty training, or full-time National Guard duty), USERRA
covers the commissioned corps of the Public Health Service and other
persons designated by the President in time of war or national
emergency.
[3] We have previously reported on problems related to the length of
time it takes agencies to investigate and review federal employee
USERRA claims, and the reliability of the data agencies report to
Congress. See enclosure VI for a list of related GAO products on this
topic.
[4] The OSC is an independent investigative and prosecutorial agency
with the primary mission of protecting the employment rights of
federal employees and applicants for federal employment.
[5] DOL is also to inform claimants that they may file a complaint
directly with the MSPB.
[6] Pub. L. No. 108-454, §204, 118 Stat. 3598, 3606-08 (Dec. 10,
2004). Under VBIA, the demonstration project was originally scheduled
to end on September 30, 2007, but through a series of extensions ran
through December 31, 2007.
[7] GAO, Military Personnel: Improved Quality Controls Needed over
Servicemembers' Employment Rights Claims at DOL, [hyperlink,
http://www.gao.gov/products/GAO-07-907] (Washington, D.C.: July 20,
2007).
[8] Pub. L. No. 111-275, § 105, 124 Stat. 2864, 2868-70 (Oct. 13,
2010).
[9] If a claim does not contain an SSN, VETS will assign a claim
number based on the date of the month the claim is received. For
example, claims filed on an odd-numbered date will be assigned an odd
case number and forwarded to OSC; claims filed on an even-numbered
date will be assigned an even case number and be investigated by VETS.
Also, under the demonstration project, OSC is authorized to handle any
"mixed claims" in which a claimant files a USERRA claim against a
federal executive employer and also brings a related prohibited
personnel practice (PPP) claim. There are 12 prohibited personnel
practices including discrimination, retaliation, or unauthorized
preference or improper advantage. 5 U.S.C. § 2302.
[10] U.S. Office of Special Counsel and Department of Labor Veterans'
Employment and Training Service, Joint Report on Methods & Procedures
for Demonstration Project for Referral of USERRA Claims Against
Federal Agencies to the U.S. Office of Special Counsel (Washington,
D.C.: January 2011).
[11] Statement of Federal Financial Accounting Standards 4, Managerial
Cost Accounting Standards and Concepts, establishes standards for
managerial cost accounting information at federal agencies.
[12] DOJ initiates legal action in federal district court and OSC
initiates legal action before the Merit Systems Protection Board
(MSPB). Servicemembers may also bring their claims directly to federal
court or to the MSPB without using federal assistance.
[13] Office of the Assistant Secretary for Veterans‘ Employment and
Training, U.S. Department of Labor, Uniformed Services Employment and
Reemployment Rights Act of 1994 (USERRA): Fiscal Year 2009 Annual
Report to Congress (Washington, D.C., October 2010).
[14] Office of the Assistant Secretary for Veterans‘ Employment and
Training, U.S. Department of Labor, Uniformed Services Employment and
Reemployment Rights Act of 1994 (USERRA): Fiscal Year 2008 Annual
Report to Congress (Washington, D.C., October 2009).
[15] Pub. L. No. 108-454, §204, 118 Stat. 3598, 3606-08 (Dec. 10,
2004). Under VBIA, the demonstration project was originally scheduled
to end on September 30, 2007, but through a series of extensions ran
through December 31, 2007.
[16] GAO, Military Personnel: Improved Quality Controls Needed over
Servicemembers‘ Employment Rights Claims at DOL, [hyperlink,
http://www.gao.gov/products/GAO-07-907] (Washington, D.C.: July 20,
2007).
[17] If a claim does not contain an SSN, VETS will assign a claim
number based on the date of the month the claim is received. For
example, claims filed on an odd-numbered date will be assigned an odd
case number and forwarded to OSC; claims filed on an even-numbered
date will be assigned an even case number and be investigated by VETS.
Also, under the demonstration project, OSC is authorized to handle any ’
mixed claims“ in which a claimant files a USERRA claim against a
federal executive employer and also brings a related prohibited
personnel practice (PPP) claim. There are 12 prohibited personnel
practices including discrimination, retaliation, or unauthorized
preference or improper advantage. 5 U.S.C. § 2302.
[End of section]
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