[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
REVIEW OF EXPIRING PROGRAMS
=======================================================================
HEARING
before the
SUBCOMMITTEE ON ECONOMIC OPPORTUNITY
of the
COMMITTEE ON VETERANS' AFFAIRS
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
__________
FEBRUARY 13, 2008
__________
Serial No. 110-68
__________
Printed for the use of the Committee on Veterans' Affairs
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COMMITTEE ON VETERANS' AFFAIRS
BOB FILNER, California, Chairman
CORRINE BROWN, Florida STEVE BUYER, Indiana, Ranking
VIC SNYDER, Arkansas CLIFF STEARNS, Florida
MICHAEL H. MICHAUD, Maine JERRY MORAN, Kansas
STEPHANIE HERSETH SANDLIN, South HENRY E. BROWN, Jr., South
Dakota Carolina
HARRY E. MITCHELL, Arizona JEFF MILLER, Florida
JOHN J. HALL, New York JOHN BOOZMAN, Arkansas
PHIL HARE, Illinois GINNY BROWN-WAITE, Florida
MICHAEL F. DOYLE, Pennsylvania MICHAEL R. TURNER, Ohio
SHELLEY BERKLEY, Nevada BRIAN P. BILBRAY, California
JOHN T. SALAZAR, Colorado DOUG LAMBORN, Colorado
CIRO D. RODRIGUEZ, Texas GUS M. BILIRAKIS, Florida
JOE DONNELLY, Indiana VERN BUCHANAN, Florida
JERRY McNERNEY, California VACANT
ZACHARY T. SPACE, Ohio
TIMOTHY J. WALZ, Minnesota
Malcom A. Shorter, Staff Director
______
SUBCOMMITTEE ON ECONOMIC OPPORTUNITY
STEPHANIE HERSETH SANDLIN, South Dakota, Chairwoman
JOE DONNELLY, Indiana JOHN BOOZMAN, Arkansas, Ranking
JERRY McNERNEY, California JERRY MORAN, Kansas
JOHN J. HALL, New York VACANT
Pursuant to clause 2(e)(4) of Rule XI of the Rules of the House, public
hearing records of the Committee on Veterans' Affairs are also
published in electronic form. The printed hearing record remains the
official version. Because electronic submissions are used to prepare
both printed and electronic versions of the hearing record, the process
of converting between various electronic formats may introduce
unintentional errors or omissions. Such occurrences are inherent in the
current publication process and should diminish as the process is
further refined.
C O N T E N T S
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February 13, 2008
Page
Review of Expiring Programs...................................... 1
OPENING STATEMENTS
Chairwoman Stephanie Herseth Sandlin............................. 1
Prepared statement of Chairwoman Herseth Sandlin............. 29
Hon. John Boozman, Ranking Republican Member..................... 2
Prepared statement of Congressman Boozman.................... 29
WITNESSES
U.S. Department of Labor, Hon. Charles S. Ciccolella, Assistant
Secretary, Veterans' Employment and Training Service........... 21
Prepared statement of Hon. Ciccolella........................ 51
U.S. Office of Special Counsel, Hon. Scott J. Bloch, Special
Counsel........................................................ 22
Prepared statement of Hon. Bloch............................. 54
U.S. Department of Veterans Affairs, Keith Pedigo, Associate
Deputy Under Secretary for Policy and Program Management,
Veterans Benefits Administration............................... 23
Prepared statement of Mr. Pedigo............................. 58
______
American GI Forum of the United States, Colonel Felix C. Vargas,
Jr., USAR (Ret.), Senior Advisor............................... 14
Prepared statement of Colonel Vargas......................... 49
American Legion, Ronald F. Chamrin, Assistant Director, Economic
Commission..................................................... 9
Prepared statement of Mr. Chamrin............................ 44
Iraq and Afghanistan Veterans of America, Todd Bowers, Director
of Government Affairs.......................................... 12
Prepared statement of Mr. Bowers............................. 48
Tully, Mathew B., Esq., Founding Partner, Tully Rinckey PLLC,
Albany, NY..................................................... 3
Prepared statement of Mr. Tully.............................. 29
Veterans of Foreign Wars of the United States, Justin M. Brown,
Legislative Associate, National Legislative Service............ 11
Prepared statement of Mr. Brown.............................. 46
SUBMISSIONS FOR THE RECORD
Gold Star Wives of America, Inc., Vivianne Cisneros Wersel,
Member, Government Relations Committee, statement.............. 59
Vietnam Veterans of America, Richard F. Weidman, Executive
Director for Policy and Government Affairs, statement.......... 61
REVIEW OF EXPIRING PROGRAMS
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WEDNESDAY, FEBRUARY 13, 2008
U.S. House of Representatives,
Committee on Veterans' Affairs,
Subcommittee on Economic Opportunity,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2:32 p.m., in
Room 340, Cannon House Office Building, Hon. Stephanie Herseth
Sandlin [Chairwoman of the Subcommittee] presiding.
Present: Representatives Herseth Sandlin, Donnelly and
Boozman.
OPENING STATEMENT OF CHAIRWOMAN HERSETH SANDLIN
Ms. Herseth Sandlin. Good afternoon, ladies and gentlemen.
The Committee on Veterans' Affairs Subcommittee on Economic
Opportunity hearing will come to order. I apologize for the
late start. Some of us had markups in other committees and the
votes have been somewhat unpredictable today. Hopefully we will
have about one-half hour to an hour here uninterrupted, and
then we will be back with your patience. We appreciate the
patience you have already demonstrated.
I would like to call to the attention, to the Subcommittee,
to the fact that the Vietnam Veterans of America and the Gold
Star Wives of America have asked us to submit written
statements for the hearing record. If there is no objection, I
ask for unanimous consent that their statements be entered for
the record. Hearing no objections, so entered.
[The statements of the Gold Star Wives of America and the
Vietnam Veterans of America appear on p. 59 and p. 61.]
Ms. Herseth Sandlin. As many of you know, a recent
Associated Press article dated February 8, 2008, highlighted
the troubles encountered by recently released servicemembers in
obtaining employment. The article went on to cite an employment
histories report published for the U.S. Department of Veterans
Affairs (VA), which concludes more can be done by the public
and private sectors to ensure servicemembers are successful in
obtaining employment after their service to our country.
Furthermore, the article refers to a U.S. Department of Labor's
(DOL) Uniformed Services Employment and Reemployment Rights Act
(USERRA) Annual Report to Congress, which cites a high rate of
USERRA complaints by returning Guard and Reserve forces.
I know that I am not alone when I say that this article
raises serious concerns about the problems encountered by many
of our constituents and today's hearing gives us a venue to
reevaluate several programs that may help them succeed in life
after the military. These programs have either recently
expired, or are set to expire, or include benefits level rates
of which are set to reduce to prior levels from prior years.
These programs include the Incarcerated Veterans Transition
Program, the Joint Office of Special Counsel (OSC) and U.S.
Department of Labor's Veterans' Employment and Training Service
(VETS) Demonstration Project, apprenticeship and on-the-job
training (OJT) benefit levels, and the Adjustable Rate Mortgage
(ARM) Demonstration Projects.
I look forward to working with Mr. Boozman, our Ranking
Member, and Mr. Donnelly and other Members of the Subcommittee
to continue to improve readjustment benefits available to all
servicemembers and veterans. I would now like to recognize our
Ranking Member, Mr. Boozman, for any opening remarks he may
have.
[The prepared statement of Chairwoman Sandlin appears on
p. 29.]
OPENING STATEMENT OF HON. JOHN BOOZMAN
Mr. Boozman. Thank you, Madam Chair. And I thank you for
holding this important hearing on expiring authorities in both
VA and VETS. When Congress creates new programs within the
Federal Government, it is common to include a sunset that
requires Congress to reauthorize the program a few years after
the enactment of the law for review. This is an important
management tool that allows us to review the program and then
determine if it should continue. Sunsets are also the result of
not having sufficient PAYGO offsets to make a program
permanent. In general, I believe there is always room for
improvements to any program and each probably also has some
faults. That is why I look forward to hearing the suggestions
of our witnesses on how we can do this.
I would like to commend the testimony of Mr. Tully. While I
have not had time to digest his suggested amendments to USERRA,
which we will do, his good example, I think you have a very
good example in writing a very effective testimony. He lists
specific problems, cites the related U.S. Code, and offers
specific recommendations on how to solve these problems. I
thank him for the thoughtfulness with which he has addressed
the issue and once again I thank you, Madam Chair, for holding
this very important hearing and look forward to the testimony
of our witnesses.
[The prepared statement of Congressman Boozman appears on
p. 29.]
Ms. Herseth Sandlin. Thank you, Mr. Boozman. I would now
like to welcome all of our panelists who will be testifying
this afternoon. Let me first introduce to the Subcommittee our
witness on our first panel, Mr. Mathew Tully, partner of Tully
Rinckey, PLLC. Welcome to the Subcommittee. We look forward to
your testimony. I would like to remind you, and all of the rest
of our panelists this afternoon, that your complete written
statement has been made a part of the hearing record. Please
limit your remarks to 5 minutes so that we have sufficient time
to follow up with you and the other panels this afternoon with
questions that we may have. That way everyone has ample
opportunity not only with their written testimony, but also has
sufficient time to respond to some of our questions, most of
which are going to be either anticipated, or will not be out of
left field based on your testimony and what we are trying to
get at today, as Mr. Boozman described in his opening remarks.
Mr. Tully, again, welcome and you are recognized for 5 minutes.
STATEMENT OF MATHEW B. TULLY, ESQ., FOUNDING PARTNER, TULLY
RINCKEY PLLC, ALBANY, NY
Mr. Tully. Thank you, Madam Chairwoman. Thank you Ranking
Member Boozman, Members of the Committee, for allowing me to
testify today. I am the victim of USERRA discrimination, I am
also a survivor of the 9/11 attacks on the World Trade Center,
and I am also a disabled veteran of Operation Iraqi Freedom.
In 2004, my law partner, Greg Rinckey, who served as an
Army Judge Advocate General (JAG) for 6 years, and I started
our law firm with the sole purpose of helping USERRA victims. I
think we know the law and all of its flaws better than most.
With that said, we support the Office of Special Counsel's
continued involvement in the investigation of USERRA
complaints. We also believe USERRA could be improved to better
protect servicemembers.
Specifically we would ask that the Office of Special
Counsel have the power to discipline Federal supervisors who
engage in USERRA discrimination. Right now, Federal supervisors
routinely engage in USERRA discrimination and are not punished
by their agencies unlike other laws, for example Equal
Employment Opportunity (EEO) discrimination. If a supervisor
were to engage in EEO discrimination,their agency would
generally discipline that supervisor for violating the Code of
conduct. That does not happen routinely in USERRA cases. And we
believe that OSC should have the same powers that it has under
the Hatch Act to bring separate disciplinary cases against
members of the Federal Government who engage in USERRA
discrimination.
Secondly, USERRA is known in the employment law community
as ``the toothless law'' because it does not provide for the
same type of damages provided to other, in other employment law
States. Servicemembers are treated as second class citizens in
this respect. I would specifically point that the Whistle
Blower Protection Act has additional damages that can be
applied if somebody engages in whistle blower discrimination.
EEO laws have very strong damages. They have liquidated
damages. They have punitive damages. They have compensatory
damages.
Right now we currently have a client who works for the Post
Office. His name is Richard Erickson. He is also a Sergeant
Major in the Army Reserves. Sergeant Major Erickson was fired
from the Post Office and received a letter. And the letter says
he is terminated for taking excessive military leave. He has
been unemployed for 2 years as his case battles through the
Merit Systems Protection Board (MSPB) and through the Federal
circuit. We think it is important to have injunctive relief and
interim relief, which would allow Sergeant Major Erickson to
immediately go to court and get an order reinstating him back
to the Post Office before final order of the Merits Systems
Protections Board or the Federal circuit is issued. That is
common practice in EEO law. If somebody were to send a letter
saying, ``You're fired because you're an African American,''
or, ``because you're Catholic,'' or because you're whatever
protected class, you would take that letter into court and you
would be able to get an injunctive relief and that person would
get returned back to work. And that is what we are talking
about here with USERRA being toothless. None of these
provisions are in USERRA.
Next I would point out that the attorney fee provisions in
USERRA are very weak. Unlike in other discrimination laws that
mandate the payment of attorneys fees upon the successful
conclusion of a case, USERRA doesn't have that. And what you
have is on one hand the number of USERRA attorneys in this
country, that actively represent people, outside of my law
firm. And that is because most employment lawyers don't want to
take on cases where there is no chance of recovering money, or
there is a slim chance of recovering money. USERRA needs to
have a provision that requires the payment of attorneys fees on
a successful completion of the case.
I know I only have a minute left. As a member of the
National Guard, I see the hollowing out of the military
occurring right now. And I believe the military is being
hollowed out for two specific reasons. Employment disputes; you
have combat veterans from Iraq and Afghanistan coming back and
they are not reenlisting in the National Guard and Reserves
because they have problems with their employers. This Committee
has the power to change that. Nobody should not have to pick
between staying in the National Guard or Reserve or keeping
their employment.
The second major dispute, although not on the topic of
today, that I see as a common problem in my unit is custody,
child custody. Single parents are being forced to pick between
their children or the military. And as a father, if I was ever
placed in that situation I would pick my child. And I would ask
that this Committee review the provisions of the Servicemembers
Civil Relief Act to ensure that child custody is addressed. And
I know that there has been a change under the National Defense
Act of 2008. That doesn't go far enough. The law should be made
crystal clear so that a deployment cannot adversely affect a
parent in a child custody case. That is my 5 minutes.
[The prepared statement of Mr. Tully appears on p. 29.]
Ms. Herseth Sandlin. Well, no disrespect to some of our
witnesses that will be following you but you have done a better
job than a lot of folks sometimes do in keeping within your 5
minutes. I appreciate that, although I am certain that Mr.
Boozman, Mr. Donnelly, and I have some questions for you based
on not just what you shared with us in the last 5 minutes but
other elements of your written testimony. I will go ahead and
recognize our Ranking Member first for his questions. Mr.
Boozman.
Mr. Boozman. Thank you for your testimony. Some have
expressed concern that if you do increase the enforcement
penalties for USERRA, that will make employers reluctant to
hire Guardsmen. How do you respond to that?
Mr. Tully. There is already a provision in USERRA that says
you cannot discriminate based on a person's military status.
Where the concern here lies, sir, is in Reservists that are on
their second, third, or fourth deployment. I am a small
businessowner. And I don't know how I would handle a person who
in the course of, since September 11th, has deployed four times
overseas. That is where we are running into concrete,
intentional violations of USERRA.
As a general rule, I like to hire veterans. I like to hire
Reservists, I like to hire National Guardsmen. I think
overwhelmingly that is what Americans like to do. So I don't
see a problem with the initial hiring. I see a problem when
they are actually employed and they are on their third or
fourth deployment to Iraq or Afghanistan in 5 years. For small
businesses, that is just catastrophic. And I can tell you as a
small businessowner who deployed to Iraq, it was very hard for
my firm. My firm lost $173,000 because of my deployment.
Luckily I has a good partner and several associates that were
able to make up the money. But I don't think the issue, Mr.
Congressman, is with the initial hiring. It is with once they
are there. And educating the employers so that they don't
engage in discrimination, and then having strict penalties when
they do.
Mr. Boozman. Very good. You mentioned the child custody.
Can you give me a for real life example?
Mr. Tully. Absolutely. Approximately a month ago Specialist
Towne, who is in my unit, the Headquarters, 42nd Infantry
Division, lost custody of her daughter because she was deployed
to Iraq. And the court held that the best interest of the child
was that the child were to remain in Virginia of her ex-spouse.
So she had custody of the child for approximately 9 years. She
deployed to Iraq with me. When she came back she tried to get
custody and the judge said, ``The child has adjusted well to
the schools in Virginia. The child has adjusted well to the new
lifestyle. And although both of you are good parents,'' and
this is actually in the court order. ``While both of you are
good parents, we don't want to uproot the child again and bring
her back to New York.'' So here is a perfectly good soldier, a
perfectly good mother, who lost custody because she went to
Iraq to fight for her country. And I personally find it
disgusting.
Mr. Boozman. And there were no other extenuating
circumstances?
Mr. Tully. No. And it is, Towne is the name of the case. It
was decided by the 3rd Appellate Division out of New York. It
was pretty well publicized. And that is just the most recent
one. And before that there were many that this Committee was
aware about because they, you proposed changes in the National
Defense Act of 2008 to change the Servicemembers Civil Relief
Act. But those minor changes, I believe it was six words,
don't, it pertains to temporary custody orders and not a more
expansive protection of somebody's custody rights.
Mr. Boozman. Very good. How do you respond to testimony
from both OSC and VETS that their role as a Federal agency,
with its natural insight into Federal processes, makes them
better fit to process USERRA Federal claims?
Mr. Tully. I don't buy it. In the U.S. Government
Accountability Office (GAO) report, they handled approximately
200 cases, OSC about another 200, 300 cases by the Department
of Labor. During that exact same timeframe, my law firm handled
1,800 USERRA cases. The vast majority of those were Federal
employees. I will tell you this. My budget is a lot less than
the Department of Labor, VETS, and I don't have a hundred some
odd people that Department of Labor VETS has. My firm is doing
it much cheaper, much more effective. And that is what private
sector does. And by making attorneys fees mandatory you will
see a dramatic increase in the number of attorneys that are
willing to take these cases.
Right now, if you are an E4 and you have a USERRA
complaint, you don't have the money to pay an attorney $5,000,
$10,000, $15,000. Now my law firm takes most of our cases on a
contingency, or free, because we are trying to help USERRA
veterans. But there are only so many cases we can take. If you
are the average servicemember, your only two options are DOL
VETS or, formerly Office of Special Counsel. And you are stuck
with them. And unfortunately the DOL VETS only has a 7 percent
success rate, according to the GAO Report. We have a 75 percent
success rate. What that means is 75 percent of the clients, 75
percent of those 1,800 clients that we took, we had a favorable
settlement or we won their case in court. That is ten times
what DOL VETS does. I think private sector is much more
acquainted and much more able to handle these type of
complaints. And we can do it cheaper. There is no reason why
the Federal Government should be involved at all.
Mr. Boozman. You mentioned the 1,800 cases. Of that group,
how many would qualify with the knowing, willful, malicious,
whatever, would qualify for punitive damages?
Mr. Tully. I cannot, I don't have it broken down. I would
suspect it is----
Mr. Boozman. What percentage do you think?
Mr. Tully [continuing]. A much smaller number. We don't see
on the Federal side a significant number of willful and
intentional violations. What we see is a lack of education. And
that is why we would hope if OSC were to have disciplinary
powers, that would scare people into knowing what the law is.
But I would say----
Mr. Boozman. So it would be a small percentage?
Mr. Tully. Very small percentage. We see a higher
percentage in the private employers that are facing the third
and fourth deployment. In those cases, it is dramatically
higher. But in the Federal Government side, a supervisor
doesn't really have an ax to grind. It is more of a lack of
knowledge or lack of information.
Mr. Boozman. Thank you very much. Thank you, Madam Chair.
Ms. Herseth Sandlin. Thank you, Mr. Boozman. Mr. Donnelly.
Mr. Donnelly. Thank you, Madam Chairwoman. In regards to
your law firm's work, and you may have mentioned this earlier,
approximately how many firms would you say around the country
specialize in the same type of work that you do, the USERRA
work?
Mr. Tully. I am only familiar with about a handful of
attorneys, not law firms, that do full-time USERRA litigation.
Now with that said, there are thousands of attorneys that do
employment law and they may do one USERRA case a year or two
USERRA cases a year, but off the top of my head, I only know of
about five private attorneys that work full time doing USERRA
enforcement outside of the Federal Government.
Mr. Donnelly. And the Department of Labor handles cases as
well?
Mr. Tully. Outside of the Federal Government.
Mr. Donnelly. Right.
Mr. Tully. So no, including the hundred investigators, and
the handful of attorneys that work for DOL VETS.
Mr. Donnelly. Do you feel that, and please don't rely on
modesty, but do you feel that your firm's preparation, that the
cases are much better presented and that is why your success
rate is so much higher?
Mr. Tully. Absolutely. This is about a word of mouth. And
unfortunately right now, DOL VETS, the word of mouth on the
street is not very good. OSC was building a positive reputation
among servicemembers. But DOL VETS has had 12 years, 13 years
to fix their problems and they haven't. So we have been
successful. When you have a 75 percent success rate with 1,800
people that is a lot of happy clients that have a lot of money
in their pockets that are telling all of their buddies in the
Army Reserve and National Guard about this guy Mat Tully in
Albany who can help you out with your employment problems. So
the success of our firm, and my firm was started with just me,
5 years go. We are now up to almost twenty attorneys. The
success of our firm is solely because of word of mouth and
minor advertisement.
Mr. Donnelly. And do you feel that the awarding of
attorneys fees would give veterans in other areas of the
country more opportunity and better options in this area?
Mr. Tully. Absolutely. If there was mandatory attorneys
fees, you would see a lot more attorneys get into this field
than just the five attorneys that are there now. It would be
like EEO law. You know, with all due respect, there is an EEO
attorney on every street corner. And that is what I would like
to see here with USERRA, is to have a lot of USERRA attorneys
out there making sure that people are educated and making sure
the laws are enforced. And that would come at no cost to the
Federal Government.
As a matter of fact, if there was a large private attorney
base out there that was experienced in USERRA, DOL VETS and OSC
would probably go out of business because what we are able to
provide is immediate access to the court. When we are talking
about OSC and DOL VETS, that is just the investigative phase.
And that may take 6 months, a year. In one case DOL VETS has
had a case from Alaska for 7 years. And that is before they
even file in court. And that is assuming that the U.S.
Department of Justice (DOJ) files the case in court. Within 2
weeks, we take a case, we are filing either before a court or
before the Merit Systems and Protection Board. We bring
immediate action, unlike Federal Government agencies, which
take time to investigate and have various people who have to
approve. DOL VETS has to, after an investigator, and I will
turn this over to the Secretary, but there is a long process
before it gets turned over to DOJ. In our case, you call in, we
do a consult over the phone, you provide us a sworn statement
attesting to the facts, and we take your case right into court.
Mr. Donnelly. Thank you very much. Madam Chairwoman, thank
you.
Ms. Herseth Sandlin. Thank you, Mr. Donnelly. Mr. Tully,
you gave an example in your testimony today about the
individual who was with the Postal Service I believe?
Mr. Tully. Yes, ma'am.
Ms. Herseth Sandlin. Would that be an example of willful
and knowing violation, right? I think the supervisor stated it
was for excessive time away from his job based on military
service?
Mr. Tully. Absolutely.
Ms. Herseth Sandlin. In one of the suggestions you made for
improving USERRA you mentioned providing for injunctive
relief----
Mr. Tully. Yes.
Ms. Herseth Sandlin [continuing]. The way other employment
statutes do provide. So that would be, because currently there
is no injunctive relief whether it was willful and knowing or
whether it was ignorance of the law, correct?
Mr. Tully. There is injunctive relief on, for State and
private employers at the discretion of the court. There is no
injunctive relief on the Federal side. What we are asking for
is injunctive relief on the Federal side as well as mandatory
injunctive relief on the State side. And that is laid out in
greater detail in my written statement. But in Mr. Erickson's
case, Sergeant Major Erickson's case, if we had injunctive
relief on the Federal side, I could have gone to the MSPB and
gotten an order reinstating him until his case was finally
adjudicated.
Ms. Herseth Sandlin. Okay. Well I think that is a very good
suggestion and we will pursue this further and perhaps with
some of the witnesses on our other panels. Just as we will
pursue some of the questions based on the rather stark
statistics that you provide on the number of employees you have
versus the number of cases that you have taken vis-a-vis the
OSC or DOL VETS, the rate of success in those cases. Now you
recommend abolishing DOL VETS and shifting resources and
responsibilities to the Employer Support of the Guard and
Reserve (ESGR). Maybe I am misstating that, but if you could
give me a better understanding of what it is you are proposing
as it relates to OSC since their authority to be a primary
referral has expired. You had mentioned they were building a
better reputation among servicemembers in handling and
investigating the claims under USERRA. Are you recommending a
series of things that we reauthorize that authority so that
they can be a primary referral? That we take DOL VETS entirely
out of it? That we, in addition to providing for attorneys fees
and other changes to USERRA, that there is some way of getting
more private firms to take these cases? What exactly is the
best case scenario in your opinion for handling the claims?
Should we streamline it? Let one entity do the investigation,
handle the claims? Or do it all in the private sector?
Mr. Tully. Thank you. I think the best case is for the ESGR
to handle information, which is a significant part of what DOL
VETS does. ESGR should get additional funding so that they can
provide information to employers so they can be, for example,
the good cop. And I believe mandatory attorneys fees would then
allow private attorneys to get more active in these cases and
enforce USERRA. And finally I believe OSC should be involved
with, very similar to the Hatch Act, with the actual
disciplining of Federal employees that engage in misconduct. As
far as State employees and local employees, they are going to
be subjected to punitive damages, liquidated damages, things of
that nature so that there is really no need for an OSC type
enforcement there. But in the ideal world, best case scenario,
turning this upside down, ESGR should get the funding for
education. OSC should be doing discipline of intentional and
willful violations of Federal employees, and private law firms
should have mandatory attorneys fees when they successfully
prove a case. If they take a case and they lose, they shouldn't
get attorneys fees, obviously. But if they take a case and win,
they should get attorneys fees. That is the ideal situation.
But in the meantime, today? I think that OSC should have all
Federal employment cases. And I believe DOL VETS should
continue with the State. Ideally, you should streamline it so
that if you are going to keep one Federal agency involved in
enforcement, you are going to have to decide DOL VETS or OSC.
And my take on it, OSC in the 2 years or so that they have been
doing it they have built a much better reputation in the
community than DOL VETS. So if you are going to streamline it,
I would say go with OSC.
Ms. Herseth Sandlin. Thank you. Thank you very much for
answering all of our questions. If we have further ones we will
submit those to you in written form.
Mr. Tully. Thank you.
Ms. Herseth Sandlin. We appreciate your perspective. We
certainly appreciate the good work that you are doing on behalf
of servicemembers and veterans. We appreciate your service to
the country and your testimony today.
Mr. Tully. Thank you.
Ms. Herseth Sandlin. Thank you very much for being here.
Mr. Tully. Thank you.
Ms. Herseth Sandlin. Joining us on our second panel is Mr.
Ronald Chamrin, Assistant Director on Economic Commission for
the American Legion; Mr. Justin Brown, Legislative Associate in
the National Legislative Service for the Veterans of Foreign
Wars (VFW); Mr. Todd Bowers, Director of Government Affairs for
the Iraq and Afghanistan Veterans of America (IAVA); and
Colonel Felix Vargas, Senior Advisor to the American GI Forum.
Gentlemen, thank you for being here. We appreciate your written
testimony that has already been submitted, and look forward to
hearing from each of you today. Mr. Chamrin, we will begin with
you, and you are recognized for 5 minutes.
STATEMENTS OF RONALD F. CHAMRIN, ASSISTANT DIRECTOR, ECONOMIC
COMMISSION, AMERICAN LEGION; JUSTIN M. BROWN, LEGISLATIVE
ASSOCIATE, NATIONAL LEGISLATIVE SERVICE, VETERANS OF FOREIGN
WARS OF THE UNITED STATES; TODD BOWERS, DIRECTOR OF GOVERNMENT
AFFAIRS, IRAQ AND AFGHANISTAN VETERANS OF AMERICA; AND COLONEL
FELIX C. VARGAS, JR., USAR (RET.), SENIOR ADVISOR, AMERICAN GI
FORUM
STATEMENT OF RONALD F. CHAMRIN
Mr. Chamrin. Thank you Madam Chair and Members of the
Subcommittee. Thank you for the opportunity to present the
American Legion's view on some of the VA's expiring programs.
The majority of the programs discussed today received increased
payments by the passage of the Veterans Benefit Improvement Act
of 2004, Public Law 108-454. Due to the expiration of temporary
increased payments on January 1, 2008, many veterans will
receive a lower monthly payment for earned education benefits.
The American Legion opposes any reduction in education
assistance payments. The American Legion recommends that the
dollar amount of the entitlement be indexed to the average cost
of college education, including tuition, fees, textbooks, and
other supplies at an accredited university, college, or trade
school for which a veteran qualifies.
Approximately 7,000 veterans are immediately affected due
to the drop in monthly payments. The American Legion has long
advocated for increased education benefits and raising the
rates of the entitlement. Lowering benefits is an insult to all
veterans, and an extension of the OJT payment rates implemented
in Public Law 108-454 should be indefinite. This would cover
OJT for the GI Bill, Active Duty and Selective Reserve, the
Veterans Education Assistance Program (VEAP), and Survivors and
Dependents Educational Assistance Program.
Not every veteran is destined for college. Therefore, the
GI Bill needs to be more accessible for those veterans with
vocational aspirations other than college. The overall cost of
these vocational training and licensing programs far exceed the
monthly stipend provided under the traditional college student
for 36 months approach in the current GI Bill. Veterans should
be afforded the opportunity to attend programs that will lead
to the vocation of their choice.
In addition, a high percentage of today's servicemembers
are married with children in the majority of cases when they
are discharged. Meeting the financial obligations to sustain
and maintain a household is paramount and often serve as a
major obstacle to their timely use of the GI Bill. Every effort
must be made to empower every veteran with options to make the
best vocational choice to help them achieve the American Dream.
I will briefly talk about the VA Loan Guarantee Program
Projects. The American Legion supports the reinstatement of the
Adjustable Rate Mortgage Programs that will expire at the end
of this calendar year. Since the VA Home Loan Program was
enacted as part of the original Servicemen's Readjustment Act
1944, VA has guaranteed more than 18.2 million home loans
totaling nearly $938 billion. From 2001 to 2006 VA assisted
more than 1.4 million veterans in obtaining home loan
financing, totaling almost $197 billion. About half of these
loans, just over 730,000, were to assist veterans to obtain a
lower interest rate on existing VA guaranteed home loans
through the VA's Interest Rate Reduction Refinancing Loan
Program. The American Legion also supports administrative and/
or legislative efforts to improve and strengthen the loan
guarantee service's ability to serve American's veterans. H.R.
4884, the ``Helping Our Veterans To Keep Their Homes Act of
2008,'' addresses the expiration of these programs.
In reference to the topics before the Committee today, the
American Legion supports the following portions of the proposed
legislation, H.R 4884, section 2a, the extension of
demonstration project on adjustable rate mortgages to 2018 and
the extension of Demonstration Project Hybrid Adjustable Rate
to 2012.
In conclusion, former President Franklin Delano Roosevelt
once said, ``The test of our progress is not whether we add
more to the abundance of those who have much. It is whether we
provide enough for those who have little.'' Different options
for purchases of homes and the ability to afford an education
must constantly be provided to veterans. The American Legion
looks forward to continue working with the Subcommittee to
assist the Nation's veterans. Madam Chair and Members of the
Subcommittee, that concludes my testimony.
[The prepared statement of Mr. Chamrin appears on p. 44.]
Ms. Herseth Sandlin. Thank you, Mr. Chamrin. Mr. Brown, you
are recognized for 5 minutes.
STATEMENT OF JUSTIN M. BROWN
Mr. Brown. Madam Chairwoman, Ranking Member Boozman, and
Members of this Subcommittee, on behalf of the 2.3 million
members of the Veterans of Foreign Wars of the United States
and our auxiliaries, I would like to thank you for the
opportunity to testify before this distinguished body.
Today as we consider veterans issues of transition and
stabilization--employment, housing, and education--I ask that
we briefly reflect on a historical comparison. In 1973,
following the Vietnam War, the all volunteer force was
implemented. In order to fill the ranks of a military worn down
by fighting in Vietnam, recruitment standards were reduced. In
1976, the Post Vietnam Era Veterans Education Assistance
Program, VEAP, was created as a recruitment incentive to help
fill the ranks. However, relative to programs that came before
VEAP, it provided the least amount of education benefits to
veterans.
From 1973 to 1985, the military had lowered recruitment
standards and meager transition benefits, resulting in a group
of veterans that is three to four times more likely to be
homeless than their non-veteran counterparts. In contrast,
Vietnam veterans prior to this time period are only one to 1.4
times more likely to be homeless than their non-veteran
counterparts. Currently, the most common attribute of a
homeless veteran is not combat. It is their age and relation to
public policy.
The commonly held notion that the military experience
provides young people with job training, educational and other
benefits, as well as the maturity needed for a productive life
conflicts with the presence of veterans amongst the homeless
population.
If we are to use history as a marker we might suggest that
a robust, attractive initial education investment would have
alleviated many of the issues America and its veterans are
coping with today.
If we fail on the front end with hand up programs such as
education, job training, and vocational rehabilitation we miss
an opportunity to create a sound stabilization and transition
program. In the end, the American people pay for expensive
programs that are difficult to administer, produce limited
results, and often fail to achieve their objectives. We ask
that Congress closely monitor and consider the future
implications of lowered recruitment standards. Raising the
initial education benefit could offset some of the reduction in
recruitment standards while providing the best tool to
transition from the military to the civilian workforce.
With the War fast approaching its seventh year, veteran
educational benefits have not been adjusted to reflect the cost
of an education. Almost daily a new media article about the
failure of the GI Bill to pay for veterans education can be
found nullifying what used to be the U.S. Department of
Defense's (DOD's) most effective recruitment tool, the most
recent of which aired last night on the News Hour with Jim
Lehrer. We have been down this weary road before. DOD is
lowering recruitment standards and the value of the GI Bill
continues to falter. We ask that Congress be proactive in their
approach to veterans, the military, and our future.
I will now briefly address the individual programs. The
Incarcerated Veterans Transition Program (IVTP): the VFW is
supportive of the spirit of the Incarcerated Veterans
Transition Program but we need to see assurances of its
effectiveness. If DOL can substantiate that IVTP has been
effective in helping veterans stay out of prison and/or jail,
VFW supports it. The Uniformed Services Employment and
Reemployment Rights Act, USERRA: in regards to USERRA, VFW
appreciates the vigor that the four departments, DOJ, OSC, DOD,
and DOL have taken in ensuring that veterans are not
discriminated against based on military status. The VFW agrees
with recent testimony from GAO's Brenda Farrell that suggests
Congress make a single entity accountable for maintaining
visibility over the entire USERRA complaint resolution process.
Designating one single entity would, in GAO's view, enhance
efforts to improve overall program results. The Demonstration
Project on Adjustable Rate Mortgages: the VFW is happy to
support legislation that would make permanent the authority to
provide increased financing opportunities under the VA Home
Loan Program by allowing VA to offer conventional and hybrid
adjustable rate mortgages. The Survivor's Independence
Educational Assistance, better known as Chapter 35: the VFW
strongly supports Chapter 35 educational benefits for eligible
dependents of certain veterans, and would like to see its
funding continue. The Post Vietnam Era Veterans Educational
Assistance Program, VEAP: the VFW believes that this benefit is
inequitable relative to other educational benefits available,
and future claims should be administered as a Chapter 30
benefit.
Chairwoman Herseth Sandlin, Ranking Member Boozman, thank
you for the opportunity to testify. I would be happy to answer
any questions that you or the Members of the Committee may
have.
[The prepared statement of Mr. Brown appears on p. 46.]
Ms. Herseth Sandlin. Mr. Brown, thank you. Mr. Bowers, you
are now recognized for 5 minutes.
STATEMENT OF TODD BOWERS
Mr. Bowers. Madam Chairwoman and Members of the House
Veterans' Affairs Committee Subcommittee on Economic
Opportunity, on behalf of the Iraq and Afghanistan Veterans of
America and our tens of thousands of members nationwide, I
thank you for the opportunity to testify today regarding
expiring VA programs. In the interest of time I will limit my
testimony to the Department of Labor's Veterans Employment and
Training Services, or also know as VETS Program.
IAVA is a proud supporter of the Department of Labor VETS
Program. I have personally had the opportunity to meet with the
staff members who work with this program and I continue to be
thoroughly impressed with their dedication. I have also spoken
to many veterans who have benefited from DOL programs, such as
Hire Vets First. These programs are much needed. According to
the Bureau of Labor and Statistics, unemployment among recently
discharged veterans is 11.9 percent. The rate is even higher
for veterans ages 18 to 24. Approximately 18 percent of these
veterans are unemployed. That is three times the national
average. For the 1.6 million Iraq and Afghanistan veterans
returning home, employment opportunities and protections are a
crucial part of their transition into civilian life. This is
also the single most effective defense in combating
homelessness among our Nation's veterans.
The conflicts in Iraq and Afghanistan have drawn heavily on
our reserve component forces. These troops, often the
breadwinners of their families, face serious economic burdens
during and after deployment. Many are business owners who face
tremendous obstacles in ensuring their businesses are
appropriately managed while they are gone. One of my fellow
Marines, when he was deployed to Iraq, was forced to rely on
the goodwill of his community to ensure his family business did
not go under while he was deployed. He was a proud business
owner, but had serious difficulties staffing his business while
he was deployed. Without funding for advertising, he was forced
to turn to the media to let them know that he was still open
for business.
A Defense Department study in 2000 showed that 40 percent
of Reservists lost income when they are called to active duty.
Some 12,000 formal and informal Uniformed Services Employment
and Redeployment Rights Act, or USERRA, complaints were filed
by National Guardsmen and Reservists in fiscal year 2004 and
fiscal year 2005, according to the GAO. IAVA has called for
better outreach and a more streamlined referral service for
USERRA complaints. Currently a servicemember wishing to file a
complaint is forced to move through hurdles that cross three
Federal agencies and an onslaught of paperwork. We also support
tougher enforcement of USERRA protections and believe that
employers who consistently violate USERRA should be barred from
eligibility for Federal Government contracts and face civil and
criminal prosecution. In addition, the GAO has outlined a
series of recommendations regarding USERRA claims referrals
which we hope the Committee will seriously consider in any
reauthorization of the OSC referral program.
Serving your country should not mean sacrificing your
civilian livelihood. Troops returning from Iraq and Afghanistan
deserve the best possible employment protections. We thank this
Committee for their hard work to support and protect our
citizen soldiers. I will be more than happy to answer any
questions at this time.
[The prepared statement of Mr. Bowers appears on p. 48.]
Ms. Herseth Sandlin. Thank you, Mr. Bowers. Colonel Vargas,
thank you for being here. We look forward to hearing from you.
You are recognized for 5 minutes.
STATEMENT OF COLONEL FELIX C. VARGAS, JR., USAR (RET.)
Colonel Vargas. Thank you, Madam Chairwoman and
distinguished Members of this Committee, the American GI Forum
appreciates very much this opportunity to present its views
today on the issues before you. My name is Felix Vargas. I am a
Vietnam veteran, and a veteran of conflicts in Central America,
and in the Balkans during my time as a diplomat. I wish today
to acknowledge the presence of our National Commander, Mr.
Antonio Morales, who flew in from Dallas to join me for this.
I want to say just briefly that the American GI Forum is a
congressional Veterans Service Organization (VSO) founded 60
years ago by Dr. Hector P. Garcia to represent the interests
and concerns of American war veterans of Hispanic origin, many
of whom were denied their benefits at the conclusion of the
Second World War. My father and others were among them. We are
here today to add our support to the continuation of important
veterans support programs currently managed by the Departments
of Labor and Veterans Affairs. In the interest of time, I will
talk just about three of them.
First, the Incarcerated Veterans Transition Program, in our
view, has provided invaluable assistance to incarcerated
veterans to retrain and reenter the workforce. The American GI
Forum Residential Center for Homeless Veterans in San Antonio
has worked with many such veterans, and it projects that tens
of thousands of incarcerated veterans are to be released
annually for the foreseeable future. The demonstration project
has proved successful and I think we will see that in the
numbers presented by the Department of Labor. We recommend that
the Congress make permanent this program and provide additional
funding, enabling it to reach more communities. We fear that
without this program, the problem of homelessness, which is
already at an alarming rate, will be exacerbated.
I wish you to know that my home State of Washington has
taken an important step to help these veterans. Working closely
with VSOs, the State has issued a booklet titled, ``An
Incarcerated Veterans Guidebook for Washington State.'' It
provides veterans important information on the resources and
programs that are available and to which the veteran can
connect upon his release. In fact, the booklet has proven so
successful that other States have used it as a model for their
own guidebooks.
Again, we would like to see this program continue and we
believe it needs to be authorized.
Secondly, with respect to the Department of Labor's
Veterans Employment and Training Program, VETS, we see this as
a pillar in the support structure for veterans. There is no
greater assistance that can be provided to our returning
warriors than job related training linked to follow on
employment. We understand, Madam Chairwoman, that the issue
before you concerns extension of the demonstration project
allowing both the Office of Special Counsel and Labor to share
the work of the processing the Federal claims filed under
USERRA. We have no view on the division of labor. Our interest
here is limited to seeing that aggressive enforcement of USERRA
is carried out across the board by the U.S. Government.
Thirdly, the Apprenticeship and On the Job Training Program
run by Veterans Affairs. This provides veterans and their
immediate family a great incentive to achieve a coeducational
objective. At a time when we see signs of an imminent recession
in our country, and the problems that you have noted in the
news article that you saw, it is important that we not lose
sight of the contribution that this program makes in battling
unemployment in a weakened economy. This program is about
helping veterans and their families to work and learn while
they prepare to fill jobs in both the private and public
sectors. We note that the law that increased the OJT payments
to 85 percent has expired here at the end of the year, and that
without new legislation the rate now drops to 75 percent. We
urge you to extend and make permanent the OJT payment rate of
85 percent. You should not allow this rate to revert back to 75
percent. Our veterans who depend on these payments are facing
daily increases in housing and other cost of living expenses.
They need every cent that can be provided under this program.
The other comment I would make here, Madam Chairman, is
that you certainly should consider offering tax incentives to
companies who agree to participate in the apprenticeship
program. We know that there are all too few companies who do
participate.
And so, Madam Chairwoman, the American GI Forum considers
the continuation of these programs before your Committee to be
a reflection of your strong support for our veterans and their
families. Taken as a whole, they go a long way to honoring the
commitment made to our men and women who have served honorably
in the military. I thank you for allowing us an opportunity to
address you today.
[The prepared statement of Colonel Vargas appears on p.
49.]
Ms. Herseth Sandlin. Thank you, Colonel, and thank you to
all of our witnesses on this panel. I would like to start off
with a few questions as a follow-up to Mr. Tully's testimony on
USERRA specifically. Because a couple of you mentioned, I think
Mr. Brown and Mr. Bowers, both of you specifically mentioned
the importance of streamlining this process, and maybe having
one single entity or charged with the USERRA complaint
resolution process. Do either of you, or Mr. Chamrin, Colonel
Vargas, do you have some ideas on which entity is best
positioned to do this? Do you have other suggestions on how to
streamline the process based on folks you are familiar with,
members of your organizations? Do you have any specific
comments in response to Mr. Tully's testimony and some of the
suggestions he had? Mr. Brown, if you want to start and then
Mr. Bowers.
Mr. Brown. Thank you, Congresswoman. The idea behind
streamlining the process as it is right now between the
different departments is, what I think you are seeing a lot of,
as Mr. Tully kind of outlined, is there is no clarity, there is
a lot of bouncing around between the different departments.
Between an individual veteran, when he comes into the system he
might come in into DOL and then get referred to OSC, and there
is no direct individual oversight for that veteran. Or if
something does need to be streamlined or expedited, who do they
go to? And there is just really not a lot of clarity to the
process.
Ms. Herseth Sandlin. Are we speaking specifically about
individuals who have been employed by Federal agencies?
Mr. Brown. My understanding is actually both.
Ms. Herseth Sandlin. Okay.
Mr. Brown. Both individuals within State entities and
individuals within Federal agencies.
Ms. Herseth Sandlin. So your thought would be, look, even
if there are multiple, even if there is a primary referral to
OSC, or if it is DOL VETS, or if the veteran is being assisted
by someone from a private law firm that there should be someone
in the Department of Veterans Affairs or someone somewhere that
helps oversee the whole process so it just does not get stuck
somewhere for that veteran?
Mr. Brown. Correct. And also so that it doesn't just get
bounced to another department.
Ms. Herseth Sandlin. Okay. Mr. Bowers.
Mr. Bowers. Well, I would start off by saying that I think
Mr. Tully's testimony was very powerful because it shows that
there are definitely gaps in the system. The referral system,
as it is set up right now, is extremely complex. I think it
almost defines the phrase of having to deal with red tape. With
that said, as I mentioned before, I have had the opportunity to
work with a lot of folks over at the Department of Labor VETS
Program and all of them wake up every morning with the
intention of taking care of the veterans that they so
rightfully represent. They face tremendous burdens as staff,
and it is very difficult for them to take care of their own
cases with this continuous referral system that they have to
deal with.
What we sort of look at would probably be the most
effective measure would be to divide these responsibilities
amongst the agencies. Now in no way, shape, or form, am I going
to step up and say I am the expert to say, which agencies would
best handle these issues, but that might bring some
streamlineness to the way the system is currently handled. I
have personally had some involvement with the Employers Support
of the Guard and Reserve and I completely agree with Mr. Tully
that it is an incredible organization. They are one that has
really helped out a lot of veterans and the idea of having a
level of oversight into watching these claims, and I would
almost go as far as to say it may be worth this Committee's
time to think about sort of looking at the program for the next
year, review and requiring a report at some point to be able to
see the effectiveness of some of the changes that will come
about. I think that would be extremely effective because as it
stands right now it is really hard. We rely tremendously on the
Government Accountability Office's numbers and what they have
seen, and also Mr. Tully's testimony speaking about, you know,
the percentage rates that he has had. But I think we need to
take a real good in depth look at the effectiveness of the
program and step forward with it.
Ms. Herseth Sandlin. Well, I appreciate your thoughts here.
Let me get some clarification before turning over to Mr.
Boozman. Do you sense with the people that you have worked with
at DOL that it is the complexity of the referral process? Or
are there other factors coming into play that have resulted in
percentages that are not as favorable as we have seen from the
GAO report and Mr. Tully's testimony?
Mr. Bowers. I think it is the complexities of the referral
process, I agree with you there, and also the tremendous
increase we have seen of USERRA violations that has come up
since these conflicts have started.
Ms. Herseth Sandlin. Is it a staffing issue as well?
Mr. Bowers. I believe that, I have to say, you know, as we
have seen in many realms, I believe that they are, yeah, are
being pushed. They have a lot of cases that they are dealing
with with limited resources, and that is why as I say the staff
they wake up every morning, but people can only handle so much.
There is only so much an amount of a caseload that they can
handle and continue their effectiveness.
Ms. Herseth Sandlin. Is it because they are handling cases
that are not just in Federal agencies and the Federal
Government? They are handling any violation, any complaint----
Mr. Bowers. Yes.
Ms. Herseth Sandlin [continuing]. Whether that occurred
with a State agency, private-sector employer, etcetera?
Mr. Bowers. Yes, ma'am. And one of the, one of the things I
would like to bring to this Committee's attention is that on
Sunday I had the opportunity to meet with representatives from
all of the Veterans Integrated Services Networks (VISNs)
throughout the VA system and was hearing about situations
within the VA where they were having a lot of these issues
coming up. Where veterans were coming back, having
difficulties, and in many cases being fired wrongfully based on
their deployments. This caught me very off guard. And I just
wanted to convey to this Committee that I made it very clear to
these individuals as they shared with me some of the stories
that I would like to see some of the background, receive some
of the paperwork on this, and really get a good understanding
of what they are talking about here. And I will be more than
happy to share that with the Committee once we have the
appropriate information.
Ms. Herseth Sandlin. Yes, I think we would appreciate that
information. Again, Mr. Chamrin or Colonel Vargas if you want
to address this, but one more follow up if you do not mind Mr.
Boozman, for Mr. Bowers or any of you. What do you think of the
idea of having injunctive relief available? Particularly given
it seems from Mr. Tully's testimony, in his experience, that so
many of the violations, the vast majority of the violations,
are ignorance of the law and ignorance of the protections,
versus the willful and intentional decisions that have happened
in some more isolated cases. Any initial response? Certainly
you might want to take a closer look at it, but initial
response to the idea of including injunctive relief?
Mr. Chamrin. The American Legion has no position on this,
but if we go back to our September 6th testimony regarding
veterans' preference we can kind of allude to, omit the
knowingly portion. If the veteran is wronged, knowingly or
unknowingly, something should be done. And I want to come back
to Department of Labor VETS, and Todd was talking about the
staff. Disabled Veterans' Outreach Program Specialists (DVOPs)
and Directors for Veterans' Employment and Training (DVETs)--I
am sorry. DVOPs and Local Veterans' Employment Representatives
(LVERs) are asked to refer everything to the DVET. They are not
the experts in USERRA claims. So if someone comes into a one
stop career center, they are referred to the DVET. The DVET has
a lot on their plate. We have long advocated for full funding
for DOL VETS to help the DVET, to increase their training, to
maybe have an office within the DVET to help with USERRA claims
at the local level. And all of it comes down to the local
level. If you have veterans filing claims, they already are
financially unstable and insecure. They are looking for further
employment. Something is going very wrong. So at the local
level, the DVET can use his resources to get them get further
employment, further training, and other remedies.
Ms. Herseth Sandlin. Thank you. Mr. Boozman.
Mr. Boozman. Thank you, Madam Chair. Just to follow up on
the Chair's question, which is a good one. Mr. Tully, in his
testimony, testified that he thought that we should remove the
enforcement program from DOL VETS and basically let the lawyers
do that. Is that, you are saying that there is a problem? Are
you saying that you want to go that far? Or have you not
thought about that? I mean, that is kind of something that has
come up. Can you comment on that specifically for me?
Mr. Bowers. Yes. One of the things that we are really
looking for this year is exactly what Mr. Tully said. We would
like to see some teeth put into the capabilities to enforce
USERRA violations. We are seeing this more and more where
veterans are being taken advantage of, in regard to things such
as binding arbitration agreements, where veterans are being
unemployed and it has actually been overruled by the 5th
Circuit Court in regards to some of these cases. Because there
is no ammunition behind enforcing these laws I would like to
see an increase in that. And our membership would like to see
more ammo, if you will. The rifle is only as strong as the
bullet in it.
Mr. Boozman. And the advocate should be?
Mr. Bowers. I will defer that a little bit to the experts.
As I mentioned before, we do not know who the experts will be
in regards to enforcing those laws. Department of Labor VETS,
because of the outreach that they have directly to a lot of
these employers, in my, my personal opinion, I cannot speak on
behalf of IAVA, may be the most appropriate folks to handle
that. But, again, Office of Special Counsel may also hold that.
So by no means does the end of my name have Esquire behind it
so I am hesitant to make those claims.
Mr. Boozman. No, I understand. Does anybody else have a
comment in that regard, or is that it?
Colonel Vargas. Just a comment, here, Mr. Congressman. We,
as I stated in our testimony, do not have much of a view on the
division of labor here. I, we would sort of be interested in
hearing from the Labor representative about this particular
issue. We do see a difference between aggressive enforcement
and the investigations of the referral claims, and perhaps that
is really what we are talking about, is two different
functions. And whether one agency can perform both functions as
opposed to a division of labor where one function goes to one
agency and the other to the other. But, again, that is not
something we are taking a position on. We do support and
endorse the most aggressive enforcement of USERRA possible.
I will tell you from my experience in the eighties, living
in Europe, that the problem for American Reservists overseas is
worse yet. I recall many times where German employers and other
European employers would essentially tell our American
Reservists, you know, take your pick. Your job with us, or
service to your country. But you cannot have both. And so,
again, if we talk about protection we need to remember those
who serve overseas and the powers that the American Embassy has
to work through the host government to get some relief for our
people overseas. Again, enforcement is the issue.
Mr. Boozman. Okay, and you guys, do you have a comment?
Mr. Chamrin. I would just have to see more clarification of
Mr. Tully's statement. I was confused if he wants to abolish
the entire DOL VETS which we would be adamantly opposed to, or
if he is just referring to the USERRA program. So the American
Legion has no position at this time.
Mr. Brown. We also have no formal position at this time,
Congressman.
Mr. Boozman. Okay. Thank you guys, very much.
Ms. Herseth Sandlin. Just a couple of other questions. I
know that there are copies of Mr. Tully's testimony available
but it sounded to me like the proposal was along the lines of a
division of responsibilities. Take current resources to DOL
VETS, give that to the Employers Support of the Guard and
Reserve to basically, almost like an intake of the complaints,
right? And then have the OSC charged with the disciplinary
authority that he described that we had some questions about in
terms of how that might affect the hiring process based on some
concerns that we have heard there. And then with the mandatory
attorneys fees, if there was a successful case, that there
would be more attorneys out there willing to handle the cases.
I think we still have to fill in some details if we choose to
pursue a proposal such as this based on your testimony, Mr.
Tully's, and our next panel's as well as some additional
information I think we would like to see. Clearly there is a
problem here, and clearly when we are looking at different
rates and some of the statistics we want to figure out the best
practices and the best way to share information to help our
servicemembers most effectively with the resources that we are
going to have to do that.
My last question is along the lines of the Incarcerated
Veterans Transition Program. Colonel Vargas, I appreciate your
testimony in sharing with us some of what Washington State has
done. I know that is a State program. Other States have their
programs and have perhaps adapted some of the practices of
Washington State. Is there any Federal dollars that are going
into administering that State program? Any grants from the VA?
Any dollars that the Federal Government is putting in?
Colonel Vargas. Yes, Madam Chairwoman. The information I
have is that there has been some VA dollars that have gone into
this. The specifics and amounts and the mechanism, whether
grants or other, I do not know. But yes, there has been some
Federal support for this.
Ms. Herseth Sandlin. Okay. I think in light of other
reports that we have seen over the last couple of months
perhaps exacerbated by the statistics that we are familiar with
that Mr. Bowers shared in terms of the relatively high
unemployment rate, especially for 18- to 24-year-olds that are
returning from deployments, if they are not in an education
program, if they are having difficulty finding employment, we
know that that can lead to other problems, that can sometimes
result in arrest, conviction, and incarceration. I think that
we really do have to look at this program, and any others that
are being utilized, like Washington State's. Mr. Brown, you had
indicated that your organization supports it but would like to
see more concrete evidence of the results that are being
produced. Did anyone else want to comment on any other programs
at the State level they are familiar with? Perhaps Mr. Chamrin,
I think you may have mentioned it briefly?
Mr. Chamrin. I do have some observations. In California, I
am going to read here, they have a program called PREP, the
Prisoner Reintegration Program, in San Diego. California has a
$5 billion prison system. It costs about $44,000 per prisoner.
And less than 5 percent of all 10,000 prisoners released
annually have any job training. So what California has done, it
has created the Prisoner Reintegration Program. It is not
focused exclusively on veterans, but all prisoners. What is
significant about this is that they have a 502 percent return
on investment. So as proven in California, prevention of
recidivism will ease the financial burden on local, State, and
Federal prison systems. I can provide some other State evidence
after the hearing, if you like.
Ms. Herseth Sandlin. Yes, please. Well thank you all. I
appreciate your testimony, and we will continue to work with
you for additional information as we examine all of these
issues even more closely. Again, thank you for your patience
and for answering our questions, and for your service to our
Nation's veterans and your service to our country. Thank you
for being here and traveling a distance, as some of you have
done.
Now I would like to invite our third panel to the witness
table. Joining us on our third panel of witnesses is the
Honorable Charles Ciccolella, Assistant Secretary for Veterans'
Employment and Training, U.S. Department of Labor; the
Honorable Scott Bloch, Special Counsel for the U.S. Office of
Special Counsel; and Mr. Keith Pedigo, Associate Deputy Under
Secretary for the Office of Policy and Program Management,
Veterans Benefits Administration, the U.S. Department of
Veterans Affairs. I welcome back all of you to the
Subcommittee. We look forward to hearing from you and posing
some questions based on your written statements that have been
made part of the record as well as some of the discussion of
the prior two panels. Secretary Ciccolella, thank you as always
for being here, you are recognized for 5 minutes.
STATEMENTS OF HON. CHARLES S. CICCOLELLA, ASSISTANT SECRETARY,
VETERANS' EMPLOYMENT AND TRAINING SERVICE, U.S. DEPARTMENT OF
LABOR; HON. SCOTT J. BLOCH, SPECIAL COUNSEL, U.S. OFFICE OF
SPECIAL COUNSEL; AND KEITH PEDIGO, ASSOCIATE DEPUTY UNDER
SECRETARY FOR POLICY AND PROGRAM MANAGEMENT, VETERANS BENEFITS
ADMINISTRATION, U.S. DEPARTMENT OF VETERANS AFFAIRS
STATEMENT OF HON. CHARLES CICCOLELLA
Mr. Ciccolella. Well thank you very much, Madam Chair, and
Congressman Boozman. Thank you very much for holding this
hearing. I will confine my comments to the Incarcerated
Veterans Transition Program and the Demonstration Project for
Referral of certain USERRA cases, Federal-sector USERRA cases
to the Office of Special Counsel.
With regard to the Incarcerated Veterans Transition
Program, that is a program that targeted veterans who were
preparing to leave prison. The program ran from 2004 to 2006,
so it ran for three fiscal years. During the demonstration
project, about 4,100 incarcerated veterans were assessed. Of
those, 2,191 were actually enrolled into the Incarcerated
Veterans Programs. We had seven demonstration programs around
the country. And the entered employment rate for them was 54
percent, which I think is pretty good. The cost per placement
about $4,500, and that sure is a lot cheaper than the $22,000
to keep them in prison. Plus, I mean, you are rebuilding lives
and cutting down on recidivism.
The demonstration program showed positive results. It
connected veterans not only to employment, but also to their
veterans healthcare benefits, to discharge upgrades, and to
better preparing them to avoid recidivism. So that is a very
positive program in that regard. And one of the other benefits
of the program is we trained a whole bunch of disabled veteran
outreach specialists and local veteran employment
representatives, LVERs and DVOPs, about 124 of them. And they
are still doing that sort of work, even though we do not have
the demonstration programs still going on. They are doing it
with the Homeless Veterans' Reintegration Programs (HVRPs), the
homeless vet programs, and right out of the one stops as well.
I would also say that the program was a joint effort. It is
a joint effort with DOL and the Department of Veterans Affairs,
as well as the Department of Justice's Department of
Corrections and that is the only way this program would work.
So if it is authorized, not reauthorized, if it is ever
authorized again there has got to be that partnership if we
want it to work.
Congress passed the Veteran Benefit Improvement Act in
2004. That required the Secretary of Labor and OSC to engage in
the USERRA demonstration program. During the demonstration
program, about 693 cases Federal sector USERRA claims were
received and 312 went over to OSC. I think the demonstration
program was very useful. Today VETS and OSC have a much closer
working relationship. Staff still meet every 30 days and
discuss current, relevant issues and the level of cooperation,
in my view, has never been higher. Plus, Government
Accountability Office did a review of this demonstration
program and made some pretty good recommendations with regard
to the administrative and housekeeping way we handle cases. And
a couple of those recommendations were substantive, especially
the recommendation piece about making sure that all these
veterans are notified of their rights to referral. We have
implemented all of those recommendations and they were very
useful.
As I said I think the demonstration program was very, very
useful. I also think it served its purpose. And I believe that
VETS is better prepared today to handle all of the USERRA
cases. That concludes my oral statement. I think I am under the
5 minutes. I have about 3\1/2\ there. So I will shut up.
[The prepared statement of Hon. Ciccolella appears on p.
51.]
Ms. Herseth Sandlin. I am afraid an earlier comment had a
chilling effect. I did not mean for that to happen. Mr. Bloch,
you are now recognized. Thank you, Secretary Ciccolella. Mr.
Bloch.
STATEMENT OF HON. SCOTT BLOCH
Mr. Bloch. Thank you, Madam Chairman, Ranking Member
Boozman. I am Scott Bloch, Special Counsel of the United States
and head of the U.S. Office of Special Counsel. Thank you for
the opportunity to provide my perspectives on the enforcement
of USERRA. The protections the statute provides have not
expired. However, there has been a significant change in how it
is enforced for Federal employees who are also members of the
National Guard and Reserve.
U.S. military members understand their obligations to their
country and serve when called. Unfortunately, not all employers
understand their obligations to employees. Some servicemembers,
mostly members of the National Guard and Reserve, return from
active duty only to be turned away by their civilian employers.
It is almost as though they were told, ``Welcome back. You are
fired.'' It happens even when the employer is the same Federal
Government that mobilized the servicemember. About 25 percent
of the National Guard and Reserve are Federal civilian
employees.
USERRA has protected returning servicemembers turned away
by their civilian employers or denied their rights and benefits
since 1994. This law provides a strong enforcement mechanism
for Federal employees giving jurisdiction to the Merit Systems
Protection Board. A complaint under USERRA may be made to the
Department of Labor Veterans' Employment and Training Service,
DOL VETS. If the employer is a Federal agency and DOL VETS
cannot resolve the claim, the complainant may request referral
to OSC for possible prosecution. While USERRA expanded OSC's
role as protector of the Federal Merit System, it established a
bifurcated process. DOL VETS investigates and then the matter
may be referred to OSC for prosecution.
I established OSC's USERRA unit and we filed our first
prosecution that OSC had filed in its history in June 2004. It
had taken about 2 years for that particular case to come to us,
after a Ph.D. Nursing Supervisor, fired after lengthy service
in VA hospitals, was told she had no case. Her supervisor had
said, ``We can't have these people going on military leave.''
We obtained all of her back pay for her with interest, and
private attorneys fees. But after a 3-year struggle for justice
her career was over.
I have filed five USERRA prosecutions since becoming the
Special Counsel and we have obtained full corrective action in
four of those cases. For example, an Army Corps of Engineers
employee entered the Air Force, then returned to the Corps and
was denied his job. He filed a complaint and was told he had no
case. His case was referred to us a year after his initial
complaint and months after his requested referral. We
determined the Army Corps had violated his rights and filed
suit, getting him $85,000 in back pay and his job back.
In 2004, Congress established a USERRA demonstration
project. This directed about half the Federal employees who
have USERRA claims directly to OSC to demonstrate the potential
advantages of having a single agency handle Federal employee
claims. GAO evaluated the demonstration project and found that
DOL VETS did not always tell servicemembers they could come to
OSC when their case had been rejected. Also DOL VETS
calculations did not include the time a case sits in a regional
solicitor's office, sometimes up to a year.
GAO's evaluation was provided to Congress days before the
August 2007 recess. With the demonstration project set to
expire September 30, Congress had little time to consider
amending USERRA, although it was extended to December 31. But
OSC lost the authority to accept direct claims made by Federal
employees under USERRA.
OSC still receives cases when USERRA claimants request DOL
VETS referral that it cannot resolve, and cases that contain
allegations of violations of prohibited personnel practices,
which come under our jurisdiction. However, USERRA enforcement
capacity has been lost, and just when we may expect more troops
to be returning home.
We have obtained corrective action in 25 percent of the
USERRA cases under the demonstration project. The demonstration
project showed that Federal claimants who come to OSC get
significantly better and faster service and aggressive
prosecution. We believe that OSC's readiness to be the single
point of contact for Federal employees has been validated. As
the Federal personnel law specialists, we believe that USERRA
should require that all claims by Federal employees be made
directly to OSC. And I look forward to your questions.
[The prepared statement of Hon. Bloch appears on p. 54.]
Ms. Herseth Sandlin. Thank you very much, Mr. Bloch. Mr.
Pedigo, thank you for being here again. We look forward to
hearing from you, too. You are recognized.
STATEMENT OF KEITH PEDIGO
Mr. Pedigo. Madam Chairwoman and Members of the
Subcommittee, I appreciate the opportunity to be here this
afternoon to discuss expiring VA programs. Under the provision
of 38 U.S.C. section 3707, VA was authorized to conduct a
demonstration project to guarantee traditional adjustable rate
mortgages during fiscal years 1993 through 1995. Congress did
not extend this authority when it expired. The Veterans
Benefits Improvement Act of 2004 reinstated VA's authority to
guarantee traditional ARMs through 2008 and authorized a
demonstration project to guarantee hybrid ARMs through fiscal
years 2004 through 2008. Traditional ARMs are mortgages in
which the interest rate adjustments may occur on an annual
basis. The limits on such adjustments vary across non-VA
products. In contrast, VA guaranteed ARMs limit the annual
interest rate adjustments to a maximum increase or decrease of
one percentage point and to a maximum of five percentage points
over the life of the loan. Hybrid ARMs are mortgages having an
interest rate that is fixed for an initial period of more than
1 year and can adjust annually thereafter. Adjustments are
indexed to various indices and, generally speaking, there are
no lifelong limits on interest rate increases. In contrast, for
VA guaranteed hybrid ARMs, for which the initial contract
interest rate remains fixed for less than 5 years, adjustments
are limited to a maximum increase or decrease of one percentage
point annually and to a life-of-loan interest rate increase of
five percentage points. For VA hybrid ARMs, for which the
initial contract rate remains fixed for 5 years or more, annual
adjustments are limited to 2 percentage points and life-of-loan
increases are limited to 6 percentage points. Since VA
adjustable rate mortgages are underwritten with the same
stringency as VA fixed rate loans, they are not considered
subprime products.
VA's authority to offer veterans the option of obtaining VA
ARMs and hybrid ARMs expires September 30, 2008. If extended,
we estimate that this authority would cost $3 million in fiscal
year 2009 and $14 million over 10 years. At this time, we do
not object to making the provisions of 3707 and 3707a
permanent, provided Congress identifies offsets for the
increased direct spending.
Individuals eligible for educational assistance programs
administered by VA may use their benefits in approved on-the-
job training and apprenticeship training programs. Under the
various GI Montgomery Bills, the monthly educational assistance
allowance for such training is calculated as a percentage of
the full-time monthly institutional benefit. Education
assistance allowances under these programs are paid at the rate
of 75 percent for a full time student for the first 6 months,
55 percent during the second 6 months, and 35 percent for the
remaining months of the program. Under the Dependents
Educational Assistance Program, the law sets forth declining
rates for such allowances for the various 6-month increments.
Public Law 108-454 provided for a temporary 10 percent
increase in the amount of benefits payable for pursuit of OJT
and apprenticeship programs for the period October 1, 2005,
through December 31, 2007. As of January 1, 2008, payments for
OJT and apprenticeship programs reverted to their previous
levels. This is the first time VA has been required to reduce a
benefit by a significant level during an individual's training.
We believe the higher monthly training allowance that the
supplement provides is a significant incentive for individuals
to accept training positions that might not otherwise be taken
by them. We recommend reinstatement of the benefit rate
increase and support making the increase permanent.
We defer to the Department of Defense regarding OJT and
apprenticeship rates under the Montgomery GI Bill for Select
Reserve as it is a program administered by that Department
under Title 10 of U.S.C. While the Reserve Educational
Assistance Program is also administered under Title 10, its
rates are tied to the Montgomery GI Bill for active duty rates.
Therefore, a rate increase or decrease to the Montgomery GI
bill active duty rate will have the same corresponding effect
on rates payable under the Reserve Educational Assistance
Program.
Madam Chairwoman, this concludes my testimony. I greatly
appreciate the opportunity to be here today and look forward to
answering any questions you may have.
[The prepared statement of Mr. Pedigo appears on p. 58.]
Ms. Herseth Sandlin. Well, thank you to all of you for your
testimony. We didn't hear the annoying buzzers go off but we do
have a pending vote. We do have a few minutes where Mr. Boozman
and I would like to pose some questions. So as not to
shortchange your time, if it is your preference, because it is
five votes and that can take much longer than we sometimes
expect, I know I will and Mr. Boozman and other Members may
ultimately have more questions we would like to submit to you
in writing to follow up on. I think that would certainly be a
benefit if we had more time for the other folks from the other
panels to hear your responses to some of our questions. We hope
that we will be able to work together on this to find the best
approach to addressing some of the problems that we have seen.
Mr. Bloch, I would like to start with you. In addition to
your recommendation that we amend USERRA to have OSC handle all
claims from Federal employees, what is your take on the
proposition of also amending USERRA to provide for injunctive
relief, in light of the example that you gave of the woman who
was a Ph.D. and a nurse at the VA, and the 3 years it took, or
was most of that time and then delay in part because it was not
referred to you in a timely fashion?
Mr. Bloch. Thank you, Madam Chair. Yes, the delay was both
a function of the time it took to get referred over, and I
cannot tell you the exact time, but I seem to recall it was
about a year, and then also the time it took in our agency
before I took over as the Special Counsel. And when I took
over, one of my first priorities was to get a fire lit under
what then did not exist as a USERRA unit. And we made that a
high priority and filed that prosecution the day I testified
before the Veterans' Affairs Committee of the House in June of
2004 we moved forward with that.
The specific answer to your question about injunctive
relief, this would be very helpful. We have that now for
prohibitive personnel practices, we can get a stay of the
intended personnel action, or the failure to reemploy in the
case of USERRA. And that is an extremely powerful tool because
once you get that employer to take that employee back, that is
usually the case, it is over. They are going to settle. It is
going to get taken care of. If they are hanging out there
unemployed, the employer has all the power. And so I think that
would be a tremendous leveler.
Ms. Herseth Sandlin. Well I appreciate your perspective on
that. Regarding your recommendation to amend USERRA so that OSC
can take these claims, based on what you said, has it worked
effectively under you because there has been a dedicated unit
within OSC, right?
Mr. Bloch. Yes, ma'am.
Ms. Herseth Sandlin. Okay.
Mr. Bloch. We have made it a priority to enforce USERRA
aggressively and to file prosecutions, and also to advertise in
the media----
Ms. Herseth Sandlin. Right.
Mr. Bloch [continuing]. About the effect of USERRA and when
people do not do the right thing, we want the world to know it.
Ms. Herseth Sandlin. Okay. Mr. Boozman.
Mr. Boozman. In his testimony Mr. Tully cited significant
differences in how he felt like his firm was doing in the
performance of getting some of these things resolved versus the
agency. Can you comment on that, Mr. Secretary, and Mr. Bloch?
Mr. Ciccolella. Yeah, not exactly. What do you want to
know?
Mr. Boozman. Well, what I was saying was that, Mr. Tully--
--
Mr. Ciccolella. Yes.
Mr. Boozman [continuing]. In his testimony testified that
his agency was performing quite well----
Mr. Ciccolella. Yes.
Mr. Boozman [continuing]. In regard to getting some of
these things rectified.
Mr. Ciccolella. Oh, I see.
Mr. Boozman. As opposed to the agency's. Can you comment on
that?
Mr. Ciccolella. Well sir, I certainly do not object to
private attorney companies representing servicemembers with
regard to their USERRA claims. I think what, from my point of
view, you know, servicemembers today have a choice. They can
come to us through ESGR or they come directly to the Department
of Labor. Under the demonstration, they could come directly to
the Special Counsel or they can go to a private attorney. I
think you have to realize that we handle cases nationwide. We
have 115 investigators. They are well trained and they deal
with not only USERRA, but all veteran employment issues. They
are well trained on USERRA, and we spent a lot of time doing
that.
Now there are advantages to having a small universe of
folks doing USERRA as OSC does. But I think we are more likely
to go face to face with an employer and get the information or
issue a subpoena or whatever we have to do. But the point is
that troops have a choice. And if they decided they want to use
a--exercise a private course of action, they can certainly do
that. And I do not mind it as long as people in those firms are
not fleecing servicemembers.
Mr. Bloch. Yes, Congressman, I think that Mr. Tully has the
freedom that I used to enjoy as a private attorney in a law
firm, and it kind of got my juices flowing listening to him,
because there is a slight difference in the tools that he has
that we may not have enabling him to freely prosecute. We have
to receive cases from DOL VETS, we are bound by the statute.
Now there is a slight difference in the content of most of
the cases, I think, that Mr. Tully is talking about in this
battery of 1,800 cases versus the ones that Mr. Ciccolella and
I were handling in the demonstration project. Most of the
demonstration project cases are what we would call a complex
employment case, where you have a series of facts about the
employment, about notice, about redeployment, about whether the
individual's job still exists, things of that nature. And so it
requires testimony, investigation, it might have subpoenas, it
might require filing a lawsuit. A lot of the cases I think Mr.
Tully is handling which, you know, as a private attorney, I
would be very desirous of getting, are called Butterbaugh
cases. And these cases many of them, you know, over a thousand,
I believe, of their cases involve small amounts of back pay for
Federal military leave, paid leave that was wrongfully taken
from employees back to 1980 under a case called Butterbaugh v.
Department of Justice, a 2003 Federal circuit case. This
generated a slew of litigation which private attorneys can
bring on behalf of many, many people and get several hundred
dollars back, maybe a thousand, couple thousand dollars back in
some cases. But this is not what we handle mainly. We get a few
of those, a very small number.
The cases we have are complex and some of them may involve
prohibitive personnel practices as well as some unpaid leave or
paid leave that was taken away wrongfully. And so there is a
very different kind of complexity involved there.
Mr. Boozman. Thank you very much and thanks to all the
panels. This has been a very, very good hearing, Madam Chair, I
appreciate your leadership on it. And I have learned a lot.
Ms. Herseth Sandlin. Well, thank you Mr. Boozman. I have
one more question before we have to run down for votes. Mr.
Ciccolella, you had said that you thought the demonstration
project served its purpose and Mr. Bloch just gave us some
additional detail and description of the types of cases that
were intended to be referred in the demonstration project. Do
you feel like it served its purpose and now the Department of
Labor is better positioned to handle the cases? I assume that
is contingent upon Congress providing you sufficient staff and
resources in light of the witness on the second panel who is
somewhat concerned about perhaps an increased caseload with no
end in sight to increases in that caseload. I know we are not
talking about the budget today.
Mr. Ciccolella. Yes.
Ms. Herseth Sandlin. I would imagine that if you think you
are better positioned based on what we have learned from the
demonstration project that we have to make sure that we have
the staff resources and the training to do that if indeed,
after further discussion we choose to continue to have DOL VETS
handling these cases versus some of the other proposals we have
heard today.
Mr. Ciccolella. Well thank you very much. I am totally
supportive of what you said. You have to have the resources to
do these cases. I think under the present circumstances with
about 1,300 cases this year, I think we have the resources to
do that. Where I think we come up short is in terms of whether
or not it would be useful to have national USERRA campaign that
would help employers better understand the law. That obviously
would be a very useful thing. But I think we do have the
resources to handle the majority of the cases now.
I would like to go back to Scott's answer to your question.
I think what he had to say in his answer to Mr. Boozman's
question was very, very well done.
Ms. Herseth Sandlin. Well, and I do appreciate that
command. I echo Mr. Boozman's comments about how insightful
your testimony, our witnesses from the prior panel's testimony
have been and the follow up that we look forward to doing with
all of you. Most of the questions I will be submitting to you,
Secretary Ciccolella, are going to be responses from DOL to the
GAO report of July 2007. Again, I appreciate the ideas that you
shared, and for the recommendations that you have made. I want
to thank staff on both sides of the aisle here in the
Subcommittee for the hard work that they have done in working
with all of you to prepare for this hearing. And of course the
hard work that we will be undertaking to follow up on necessary
action that we think will be, and should be taken. Again, thank
you for your insights, and your testimony. We value it very
much. The hearing stands adjourned.
[No questions were submitted.]
[Whereupon, at 3:57 p.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Prepared Statement of Hon. Stephanie Herseth Sandlin, Chairwoman,
Subcommittee on Economic Opportunity
As many of you know, a recent Associated Press article dated
February 8, 2008 highlighted the troubles encountered by recently
released servicemembers in obtaining employment. The article went on to
cite an Employment Histories Report published for the U.S. Department
of Veterans Affairs which concludes more can be done by the public and
private sectors to ensure servicemembers are successful in obtaining
employment after their service to our country. Furthermore, the article
refers to a U.S. Department of Labor's USERRA Annual Report to Congress
which cites a high rate of USERRA complaints by returning Guard and
Reserve forces.
I know I am not alone when I say that this article raises serious
concerns about the problems encountered by many of our constituents.
Today's hearing gives us the venue to reevaluate several programs that
may help them succeed in life after the military. These programs
include the: Incarcerated Veterans Transition Program; Office of
Special Counsel and U.S. Department of Labor's--Veterans' Employment
and Training Service Demonstration Project; Apprenticeship and On-The-
Job Training benefit levels; and Adjustable Rate Mortgage demonstration
projects.
I look forward to working with Ranking Member Boozman and Members
of this Subcommittee to continue to improve readjustment benefits
available to all servicemembers and veterans.
Prepared Statement of Hon. John Boozman, Ranking Republican Member
Subcommittee on Economic Opportunity
Good afternoon Madam Chairwoman and I thank you for holding this
important hearing on expiring authorities in both VA and the VETS.
When Congress creates new programs within the Federal Government it
is common to include a ``sunset'' that requires Congress to reauthorize
the program a few years after the enactment of the law for review.
This is an important management tool that allows us to review the
program and then determine if it should continue. Sunsets are also the
result of not having sufficient PAYGO offsets to make a program
permanent.
In general I believe there is always room for improvements to any
program and each also probably has its faults. That is why I look
forward to hearing the suggestions of our witnesses on how we can do
this.
I would like to commend Mr. Tully for his testimony. While I have
not had time to digest his suggested amendments to USERRA, his is a
good example of how to write effective testimony. He lists specific
problems, cites the related U.S. Code and offers specific
recommendations on how to solve these problems. I thank him for the
thoroughness with which he has addressed the issue.
Once again I thank you Madam Chairwoman for holding this hearing
and I look forward to the testimony of our witnesses. I yield back.
Prepared Statement of Mathew B. Tully, Esq., Founding Partner,
Tully Rinckey PLLC, Albany, NY
Executive Summary
Since the tragic events of September 11, 2001 and our country's
involvement in Afghanistan and Iraq, millions of troops have deployed
overseas in the interest of protecting our Nation and advancing others.
Over seven years of war has caused record high deployment rates of
citizen soldiers, who have the responsibility of maintaining employment
while waiting for their call to serve our country. Many of these
soldiers, who struggle daily to balance their dual military and
civilian lives, have returned home to find that same contract of
balance not upheld by their employer. As a result, complaints of
military leave violations have been on the rise since 2002 as countless
employers have violated the rules laid out in the Uniformed Services
Employment and Re-employment Act (USERRA).
It is the responsibility and duty of the federal government to
provide these esteemed service members with the best possible resources
to combat the employment problems they face back home. From the
Department of Labor, Veterans' Employment and Training service to the
Office of Special Counsel, the government has failed in this
responsibility. These Federal Agencies have proven to be only a maze of
bureaucracy and red tape for veterans to navigate upon their return
home. Instead of being provided with the immediate assistance they
require to transition back into civilian life, the program has held
claims in review for years, often encouraging the claimants to withdraw
their allegations or simply dismissing them and then having a private
attorney get involved to recover damages in the six figures.
The men and women who have so bravely served our country deserve a
system that will be responsive and efficient. The only way to have
effective enforcement of USERRA is through proper representation, which
has not been seen with the Department of Labor and the Office of
Special Counsel. Through the aggressive and successful representation
by private attorneys, allegations of discrimination under USERRA are
prosecuted in a timely manner, giving military personnel the respect
they deserve in return for protecting our country.
To improve the effectiveness of USERRA, several initiatives have
been proposed. These initiatives include: referring USERRA claims to
privately retained attorneys, mandating attorneys' fees when a USERRA
allegation is proven, allowing judges to award liquidated, compensatory
and punitive damages, and giving the Office of Special Counsel
disciplinary authority so that federal supervisors are held personally
accountable for their violations of USERRA.
These recommendations will provide military personnel with an
outlet to effectively pursue, prosecute and protect the rights they
have earned through their service and are the first step toward
eliminating claims of military discrimination.
__________
Mr. Chairman and distinguished members of the committee, I am
honored to appear before you today to speak about my experiences with
the Department of Labor, Veterans' Employment and Training Program
Claim Referral Program to the Office of Special Counsel. As a Major in
the New York Army National Guard and a veteran of Operation Iraqi
Freedom, the matters of today's hearing are of particular importance to
me.
In order for you to better understand my connection to the expiring
VA program of discussion today, I would like to provide you with some
information about myself. From 1991 to 1995, I was enrolled in the
Reserve Officer Training Corp (ROTC) at Hofstra University with my
current law partner, Greg Rinckey. In May 1995, I was commissioned as a
Second Lieutenant in the United States Army and I found myself
unemployed while awaiting the Officer Basic Course. I applied for
several law enforcement positions with the Federal Bureau of Prisons
and was hired on August 20, 1995. In early October of the same year, I
was activated to attend military schooling and remained on active duty
until April 1998.
During the entire time that I was on active duty, I was placed on
leave without pay status under USERRA by the Bureau of Prisons. Almost
immediately upon my return from active duty, I was subjected to
intentional violations of USERRA by my superiors as a result of my
military service. The discrimination varied from receiving poor
performance evaluations during the time I was away performing military
duty, which is a period of time that should not be evaluated, to being
publicly ridiculed for making the Bureau of Prisons fill my position
with overtime employees and ``Blowing the Budget''.
Throughout late 1999 to early 2000, I filed numerous complaints
with the Merit Systems Protection Board (MSPB) against the Bureau of
Prisons alleging violations of USERRA. I pursued this avenue after
being told, repeatedly, by Labor Law attorneys that going through the
Department of Labor would only result in delays. This was confirmed by
various members of my military unit, who had gone through employment
issues as well. As a result, I chose to exercise my rights under USERRA
and to file my allegations of USERRA violations directly with the MSPB.
Very shortly after the claims were filed, the Bureau of Prisons
conducted an internal investigation. It can be assumed that the
investigation found merit to my allegations, as I was offered a
substantial cash settlement and paid leave to withdraw my claims and
resign from employment with the agency.
The large sum of money and extended paid time off were too enticing
to turn down, given my recent enrollment in law school. As such, I
entered into a settlement agreement with the agency, which contains a
confidentiality clause and prevents discussing the details of the case.
While out on extended paid leave pursuant to the agreement, I began
looking for other employment opportunities. Without many prospects on
the horizon, I sought a vacant position at another Bureau of Prisons
institution in August 2000. In late 2000, I found out that, once the
institution became aware of my prior protected USERRA activities, they
refused to process my application for employment.
While I had already found employment as a paralegal with Morgan
Stanley, I was deeply disturbed that I was being subjected to further
retaliation by the Bureau of Prisons only months after they had entered
into a settlement agreement with me. It was my understanding that this
agreement reflected their implicit acknowledgement of supervisory
employees violating USERRA. As a result, I filed another USERRA
complaint, which continued for many years against the Department of
Justice and alleged, inter alia, that my application for employment was
not processed in retaliation of my prior protected USERRA activities.
In the meantime, on September 11, 2001 my office on the 65th floor
of the World Trade Center came under attack. After September 11th, I
served with the New York Army National Guard at Ground Zero for many
weeks. In May 2002, I graduated from law school and was admitted to
practice law before the New York State Courts.
In January 2003, I sold my cooperative apartment overlooking New
York Harbor and moved with my wife Kimberly to our ski condo in upstate
New York. It was at that point that I opened a law firm out of the back
bedroom of my house. Some of my earliest clients were colleagues from
the Bureau of Prisons, who asked me to represent them in employment
matters, including allegations of EEO violations, whistle blowing
violations and disciplinary actions.
In February 2004, my current law partner and long time friend, Greg
Rinckey, returned from active duty and we entered into a law
partnership together. Throughout 2004, the number of cases we received
from federal employees increased so dramatically that we hired several
associates to accommodate the influx of clients.
In June of 2005, I received orders to report to Iraq with the 42nd
Infantry Division. On July 30, 2006, I reported to Fort Drum, New York
for deployment training and was subsequently deployed to Iraq, where I
served as the Division Chief of Operations. This deployment, as
determined by the United States Small Business Administration, resulted
in my law firm suffering financial losses in the amount of $173,000.00.
The Small Business Administration provided my firm with a Disaster
Assistance Loan for the above-mentioned amount to help recover from my
deployment. In addition to the financial suffering, I was also injured
and have subsequently been rated by the United States Department of
Veterans Affairs to be 60% disabled.
On March 21, 2007, nearly seven years after I originally filed my
complaint with the MSPB alleging that the Bureau of Prisons retaliated
against me by failing to process my application, the New York Regional
Office of the MSPB awarded me nearly $300,000.00 in back pay and
benefits. The Board also ordered the Bureau of Prisons to appoint me,
effective August 22, 2002, to the position of Correctional Officer. The
initial decision of the Board became final on April 5th, 2007, when
neither the Agency nor I appealed. As of this date, the Bureau of
Prisons has not reinstated me to the position of Correctional Officer,
nor has it timely paid me the back pay, interest and accrued leave that
I am owed. I believe, as evidenced by the MSPB's decision in my favor
awarding me substantial back pay as well as the original settlement
agreement with the Bureau of Prisons in 2000, that all of my
allegations of misconduct by Department of Justice officials have been
vindicated.
Due to my personal experiences as a victim of USERRA discrimination
as well as being a member of the New York Army National Guard and an
Iraqi War Veteran, I have over the past several years built a
considerable law practice, primarily representing others who have been
victimized by their employers in violation of USERRA.
As such, I have dealt with the Department of Labor extensively, on
both a personal and professional level. While the overall focus should
be to eliminate discrimination against military personnel as a whole,
the first step toward achieving that goal is to maintain a harsh and
critical review of USERRA complaints.
FROM FEBRUARY 8, 2005 THROUGH DECEMBER 30, 2006
According to the U.S. Government Accountability Office, report
number GAO-07-907, during the time period February 8, 2005 to September
30, 2006 the Department of Labor investigated 166 allegations of USERRA
discrimination by federal employees. During that same time period, the
Office of Special Counsel investigated 269 allegations for USERRA
discrimination. I would point out that, during the same time, my law
firm not only investigated but prosecuted before the MSPB a total of
1,802 cases. That represents more than four times the combined number
of cases that the Department of Labor and the Office of Special Counsel
handled.
I would also point out that, on page 9 of the GAO report, it listed
189 employees with the Department of Labor who are responsible for
investigating USERRA complaints (my firm has under 20). On page 16 of
the GAO report, the Department of Labor said only about 7% of those 166
cases were referred for prosecution. That means only approximately 12
cases during the time period relevant to the GAO report was a DOL case
actually prosecuted. By contrast, in a July 6th, 2007 response to the
GAO report, the Office of Special Counsel was proud of its 25%
corrective rate, which translates into 67 times during the relevant
time period that a federal employee received corrective action from the
Office of Special Counsel.
I find these numbers to be astonishing, given my firm's experience
and success in helping federal employees win USERRA claims before the
MSPB. I would point out that, of the 1,802 cases prosecuted by my firm
during the relevant time period, our clients received the remedy they
sought in approximately 73% of the cases. That translates into a
success rate nearly three times that of the Office of Special Counsel
and at least ten times better than the Department of Labor.
Further, I would respectively point out that the GAO report
referenced above does not provide the proper context as to how a claim
is investigated to any of the Committees it reported to. Specifically,
I would note that, on page 38 of the report, it admits that it did not
contact any private law firm or attorneys that specialize in USERRA
litigation. Had it contacted my firm or the handful of others who
concentrate their practice in USERRA enforcement, they would have
learned that very few service members who believe they are a victim of
USERRA discrimination go to the Department of Labor. In my opinion, the
Department of Labor has developed a reputation of poor investigative
work and poor use of investigative tools, such as ordering subpoenas
and sworn testimony by employers. Further, the non-responsive nature of
investigators and outrageously long processing times have only caused
additional decline in the agency's status.
I would also point out that the GAO report incorrectly shows
figures describing how USERRA claims are processed. I note on page 8 of
the report that it fails to list the retention of a private attorney
for the investigation and prosecution of claims. I believe that it is
important to address that private attorneys, like myself and the others
within my firm, handle many more cases per year than the Department of
Labor, the Department of Justice and the Office of Special Counsel
combined.
THE THREE METHODS OF BRINGING A USERRA COMPLAINT
A. Department of Labor
In my opinion, the Department of Labor has proven time after time
that they do not aggressively investigate allegations of USERRA
discrimination or retaliation. This is evidenced by the low number of
Reservists and National Guardsman who go to the Department of Labor for
help. I find it obscene that the Department of Labor has 189 personnel
assigned in various capacities to investigate USERRA violations and yet
my firm consistently investigates more allegations of USERRA violations
with an astronomically higher corrective rate.
As such, committee members and others on Capital Hill should
consider abolishing this program and shifting the resources going to
DOL VETS to the Department of Defense, Employers' Support of the Guard
and Reserve (ESGR). ESGR could handle all of the educational briefings
that DOL Vets claims it does. In fact, I believe the Federal Government
could save millions of dollars over the next decade by simply
abolishing the Department of Labor's involvement in USERRA enforcement
and mandating the award of attorneys' fees and litigation costs when a
victim successfully proves his or her case of discrimination or
retaliation.
B. Office of Special Counsel
In 2000, the Demonstration Project fundamentally altered the manner
in which USERRA claims are processed by granting the Office of Special
Counsel (OSC) the authority to receive and investigate claims when the
filing servicemember had a Social Security number ending with an odd
integer or the matter deals with a violation of veterans' preference
rights under 5 U.S.C. Sec. 2302(b)(11), effectively dividing USERRA
review between VETS and OSC. VETS investigates all other claims and
remains responsible for referring unresolved claimant matters to OSC or
the Department of Justice (DOJ) at the election of the filing claimant.
While the Office of Special Counsel has a more successful history
of investigating and prosecuting violations of USERRA than the
Department of Labor, they have still failed to provide efficient and
timely representation for claimants. Their success rate is sub par and
average processing time is delayed beyond excuse. The inadequacies of
the appeal process cannot be corrected by merely implementing a DOL
VETS referral system. The tangible effect of which would merely result
in an additional bureaucratic layer, which will increase the processing
time of USERRA complaints.
Moreover, the referral system failed to provide remedies for those
claimants who are dissuaded from pursuing their claim with OSC. My law
firm is consistently contacted by claimants who were encouraged to
withdraw their claims from the OSC or have had their cases held up in
review only to see them dismissed. I am glad to hear that the
demonstration project with OSC ended in January 2008.
C. Private Law Firms
Currently, Tully Rinckey is the largest firm in the country that
handles extensive numbers of USERRA cases. We handle USERRA cases not
only against the Federal Government, but against states and private
employers as well. Our track record of success is well documented and
has resulted in the firm receiving an average of forty-five new USERRA
allegations per week.
Despite the dramatically higher number of cases we investigated
during the period of time relevant to the GAO report, we also had a
substantially higher success rate in comparison to the Department of
Labor and Office of Special Counsel. While the ultimate goal should be
to end discrimination against members of the National Guard and
Reserves, these numbers clearly indicate that the best practice for
handling matters of military discrimination is through private
attorneys, not government entities.
If this Committee wants to protect today's military personnel and
ensure that allegations under USERRA are properly prosecuted and
investigated, it must not limit its research to the Department of Labor
and the Office of Special Counsel. It must also focus on the
overwhelming success of persons who retain private attorneys.
THE SOLUTION
Not only am I going to provide this Committee with my opinions,
observations, and thoughts, but also common sense solutions that will
achieve Congress' intent of making the Federal Government the model
employer, while dramatically reducing the number of people
discriminated against because of their military service. In the absence
of the referral program, these recommendations will provide an
efficient and effective system of representation for USERRA claimants.
My suggestions are as follows:
1. Make attorneys' fees mandatory when a victim proves his/her
allegations.
2. Give USERRA teeth by allowing judges to award liquidated,
compensatory and punitive damages.
3. Give the Office of Special Counsel disciplinary authority and
make federal supervisors personally accountable for their violation of
USERRA, as is provided under the Hatch Act.
4. Implement strict deadlines for the processing and completion of
USERRA claims.
In order for the above suggestions to be implemented, USERRA must
incorporate the following amendments:
USERRA should be amended to mandate the payment of reasonable
attorneys' fees, expert witness fees and other litigation
expenses where the claimant has procured an Order directing the
employer to comply with the provisions of the statute after a
hearing or adjudication.
In a recent decision, the Court of Appeals for the Federal Circuit
determined that while the MSPB may award attorneys' fees and litigation
costs to successful USERRA claimants, such awards are not mandatory
under 38 U.S.C. Sec. 4324(c)(4). See, Jacobsen v. Department of
Justice, 2007 U.S. App LEXIS 22412. The statute should be amended to
specifically overrule this interpretation.
The award of reasonable attorneys' fees and litigation costs is
par-for-the-course in virtually all other forms of employment
discrimination and veterans' benefits legislation. For example, 33
U.S.C. Sec. 918 entitles Longshoremen and harbor workers to attorneys'
fees in successful employment discrimination and workers' compensation
claims. Similarly, whistleblowers and veterans discriminated against in
violation of the Veterans Employment Opportunities Act are also
entitled to an award of attorneys' fees and litigation costs, just to
name a few.\1\ Congress clearly intended to ensure that veterans who
have meritorious employment discrimination complaints will not be
deterred from bringing such claims due to costs associated with the
effective assistance of counsel.
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\1\ See, 5 U.S.C. Sec. 1221(g)(2); 5 U.S.C. Sec. 3330c(b); 29
U.S.C. Sec. 626; 29 U.S.C. Sec. 216(b); 10 U.S.C. Sec. 2409; 12 U.S.C.
Sec. 1975; 14 U.S.C. Sec. 425; and 16 U.S.C. Sec. 3117.
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This intent must be stated in an amendment to USERRA so that no
deserving claimant will be forced to bear the burden of his or her own
legal representation or worse, be deterred from bringing the claim due
to economic hardship. Congress enacted USERRA to protect veterans from
unlawful discrimination in their employment because of their military
service. An essential aspect of that protection is ensuring that
aggrieved Veterans have access to affordable, skilled and experienced
legal counsel to successfully enforce their rights under USERRA.
Furthermore, over the past two years, the GAO has conducted
multiple investigations into the efficiency of USSERA enforcement.\2\
The reports unanimously conclude that the Department of Labor (DOL) and
the Department of Justice (DOJ) are failing our service men and women
in their administration of USERRA. The GAO found deficiencies in the
manner in which both departments advised claimants, processed claims
and enforced claimants' rights.\3\
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\2\ See, GAO-06-60, October 2005; GAO-07-259; and, GAO-07-907, July
2007. All of these reports elucidate the ineptitude with which the DOL
and DOJ administer USERRA.
\3\ Id.
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The current enforcement scheme and the program in question fail to
provide adequately for victims of USERRA violations. Such a systematic
failure to properly administer the provisions and protections of the
Act cannot be justified. Under the circumstances, the only efficient
and effective method of redress for victims of USERRA violations is
representation by private counsel who will zealously pursue their
claim. Given this fact, a mandatory award of attorneys' fees is
imperative in the interest of justice. No victim of a USERRA violation
should have to endure two harms as a result of an unlawful employment
practice, namely, the denial of a benefit of employment and the
financial burden of enforcing his or her rights in the face of such a
violation.
With this in mind, I propose that 38 U.S.C. Sec. 4324(c)(4) be
deleted and replaced with the following language:
(c)(4) If the Merit Systems Protection Board determines as a
result of a hearing or adjudication that the claimant is
entitled to an order referred to in paragraph (2), the Board
shall order the agency to comply with such provisions and award
compensation for any loss of wages or benefits suffered by the
individual by reason of the violation involved. A successful
claimant SHALL be awarded reasonable attorneys' fees, expert
witness fees, and other litigation expenses. (Emphasis added).
Similarly, I propose that 38 U.S.C. Sec. 4323(h)(2), which governs
the remedies available to State and private employees, be amended to
read as follows:
(h)(2) In any action or proceeding to enforce a provision of
this chapter [38 USCS Sec. Sec. 4301 et seq.] by a person under
subsection (a)(2) who obtained private counsel for such action
or proceeding, the court SHALL award any such person who
prevails in such action or proceeding reasonable attorneys'
fees, expert witness fees, and other litigation expenses.
(Emphasis added.)
These amendments are a cost-neutral and minimally restrictive
method for achieving congressional goals. By mandating the payment of
reasonable attorneys' fees and litigation costs, the amendment will
effectively overrule the prejudicial holding in Jacobsen and eliminate
the barrier between aggrieved veterans and the legal counsel they need
to adequately pursue their rights. It would also finally place USERRA
on equal ground with other employment discrimination and Veterans'
benefits statutes, thereby effectuating the intent of Congress. This
minor revision will provide veterans the best option for enforcing
their rights, enabling them to retain private counsel and bypass the
failed referral system.
Moreover, the change will prevent malicious and detrimental agency
action. By making attorneys' fees a statutory benefit under the Act, we
can prevent the malicious and injurious agency conduct, which occurred
in Seitz v. Department of Veterans Affairs.\4\ In Seitz, the agency
intentionally protracted the litigation, thereby increasing the amount
of the claimant's litigation costs and attorneys' fees. On the eve of
the hearing, however, the agency paid the claimant the disputed amount
of damages and sought to moot the claim. As a result of the agency's
litigation tactics, an award only in the amount of the claimant's
disputed damages was grossly insufficient to return the claimant to the
Status Quo Ante. The Board ultimately concluded that the inappropriate
conduct of the agency entitled the claimant to litigate the issue of
attorneys' fees.
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\4\ See, Final Order dated March 7, 2007.
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Nonetheless, codification of this principle is essential. Only by
expressly incorporating the claimant's statutory entitlement to
attorneys' fees can we prevent the aforementioned disingenuous conduct.
An agency must not be allowed to take actions that facilitate
unnecessary legal expenses and then, at the last minute, pay the
claimant damages in order to render the claim moot. This conduct places
the burden of legal representation on the claimant, in violation of
Congressional intent and the prevailing equitable considerations
favoring retention of private counsel by USERRA claimants.
USERRA must be amended to expand the availability of liquidated damages
for successful claimants.
USERRA currently provides limited instances where a successful
claimant may be awarded liquidated damages. Pursuant to section
4323(d)(1)(C), if a claimant was found to be the victim of a willful
violation, he or she is entitled to liquidated damages in the amount of
his or her actual damages. The provision, however, applies only to
servicemen and women employed by state or local governments or private
employers.
H.R. 3393, proposes to amend section 4323(d) by extending its
coverage to federal government employees and by ensuring that
liquidated damages will always be available to victims of willful
USERRA violations. The bill seeks to increase the amount of liquidated
damages available to a successful claimant from the amount of his/her
actual damages to the greater of either $20,000.00 or the claimant's
actual damages. I support these proposals and hope to see both of them
implemented.
The payment of liquidated damages is often the only true award
granted to victims of USERRA violations. For example, if the victim of
a wrongful termination under USERRA promptly finds comparable work, his
or her actual damages may be quite small. As a result, an award of
additional liquidated damages that merely doubles his or her miniscule
actual damages award is an insufficient deterrent to employers who
would discriminate against military personnel in civilian employment.
Liquidated damages of the greater of either $20,000.00 or the
claimant's actual damages should be available to USERRA claimants in
every case.
It is imperative that the language in H.R. 3393 extend this
provision is adopted to protect federal employees in the same manner as
state and private employees. The purpose of USERRA is to protect ALL
veterans, reservists and National Guard members irrespective of their
place of employment. By treating our service men and women differently
by virtue of their employer we are defeating the very basis of the
statute. USERRA demands parity. Justice demands parity. Equitable
treatment among all USERRA eligible employees is an ethical absolute
and is necessary to fulfill the intent of Congress by extending the
promise of USERRA protections to all eligible employees.
Therefore, I propose that section 4323(d) be amended to read as
follows:
(1) In any action under this section, the court may award
relief as follows: (C) If the court determines that an employer
has failed to comply with the provisions of this chapter, the
court SHALL require the employer to pay the person as
liquidated damages an amount equal to the greater of: . . . (i)
the amount referred to in subparagraph (B); or (ii) $20,000.00.
(Emphasis added).
Additionally, section 4324(c) must be amended, pursuant to 38
U.S.C. Sec. Sec. 4301 and 4331, to provide the same protection. I
propose that 38 U.S.C. 4324(c) be amended to add a new subsection (7)
which reads as follows:
(7) In any action under this section, the court may award
relief as follows: (i) if the court determines that an employer
has failed to comply with the provisions of this chapter, the
court SHALL require the employer to pay the person as
liquidated damages an amount equal to the greater of: (A) the
amount referred to in subparagraph(C)(2); or (B) $20,000.00.
(Emphasis added).
USERRA must be amended to mandate the payment of complete compensatory
damages for successful claimants.
Currently, USERRA does not provide a statutory entitlement to
compensatory damages for successful claimants. This is an anomaly in
employment discrimination and veterans' benefits legislation.\5\
Pursuant to 38 U.S.C. Sec. Sec. 4301 and 4331, USERRA must be amended
to provide comparable relief to federal employees for violations of the
Act. Law and equity demand that USERRA eligible employees receive the
same quality anti-discrimination protection as all other employees.
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\5\ See, 42 U.S.C. Sec. Sec. 2000e-1 et seq.; and, 5 U.S.C.
Sec. Sec. 3330 et seq.
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Title VII was amended to provide for compensatory damages because
Congress recognized that a financial award, typically consisting of
back pay, is often insufficient by itself to fully compensate the
victim for his or her injuries. Discrimination cases commonly involve
complex, non-pecuniary injuries. Successful claimants should be
entitled to compensation for these injuries in addition to their
financial damages. For example, section 102 of the Civil Rights Act
1991 has been held to allow recovery for the following non-pecuniary
injuries under its compensatory damages remedy: ``future pecuniary
losses, emotional pain, suffering, inconvenience, mental anguish, loss
of enjoyment of life, and other non-pecuniary losses.'' \6\ The same
remedies available to victims of unlawful employment practices under
the Civil Rights Act 1991 should be available to victims of
discrimination under USERRA.
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\6\ Gilbert, Gary. ``Compensatory Damages and Other Remedies in
Federal Sector Employment Discrimination Case.'' 2nd ed. Dewey
Publications, Inc: Arlington, 2003. Page 97.
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Therefore, I propose that 38 U.S.C. Sec. 4324(c) be amended to add
a new subsection (9) to read as follows:
(9) In any claim brought pursuant to the laws of this chapter
[38 U.S.C. Sec. Sec. 4301 et seq.], where the Merit Systems
Protection Board or Administrative Judge determines that an
employer failed to comply with the provisions of this chapter,
the Board or Judge shall award the claimant compensatory
damages in addition to, but not including, any other relief
granted pursuant to this chapter.
Additionally, I propose that 38 U.S.C. Sec. 4323(d)(1) be amended
to add a new subsection (E), which reads as follows:
(E) In any action brought pursuant to the laws of this chapter
[38 U.S.C. Sec. Sec. 4301 et seq.], where the court determines
that an employer failed to comply with the provision of this
chapter, the court shall award the claimant compensatory
damages in addition to, but not including, any other relief
granted pursuant to this chapter.
USERRA must be amended to provide for punitive damages in the worst
cases of discrimination.
Presently, USERRA does not provide for an award of punitive
damages. As mentioned above, section 4323(d) allows for liquidated
damages in only the most limited of instances. Representative Davis'
RAJA proposals in H.R. 3393, however, include a provision that would
allow for punitive damage awards to victims of the worst kinds of
discrimination.
H.R. 3393 proposes to amend USERRA section 4323(d) to provide for
the availability of punitive damages, in addition to liquidated
damages, where the court finds that the violation was committed with
``malice or reckless indifference to the federally protected rights of
the person.'' The proposal would apply only to state and local
governments and private employers with more than fifteen (15)
employees. I support these proposals. However, I believe that punitive
damage awards need to be expanded even further.
Punitive damage awards should be available in all cases where the
employer knowingly, willfully, maliciously or with reckless
indifference violated an employees protected USERRA rights. Punitive
damages are imposed as a deterrent to future egregious behavior. Any
act taken by an employer of his or her own volition with the knowledge
that he or she is denying a member of the military his or her protected
rights offends the most sacred principles of our society. Such behavior
must be discouraged in the clearest and strongest manner possible. A
simple amendment to the existing law unambiguously granting employees a
right to punitive damages in such cases will greatly reduce the number
of employers willing to flout the law.
Moreover, limiting the availability of punitive damage awards to
cases against state and local governments and private employers of 15
or more persons leaves a vast number of USERRA-eligible employees
unprotected. Congress intended for veterans benefit and employment
discrimination statutes to apply to all eligible parties equally,
regardless of their employer. By allowing punitive damage awards only
for employees of state and local governments and large private
employers, the H.R. 3933 proposal discriminates against an enormous
number of veterans, reservists and National Guard members who are
employed either by federal agencies or by smaller private employers.
USERRA, to be effective, demands parity. How can we look a veteran in
the eye and tell him or her that we value his or her service less
because he or she is employed by a ten (10)-person construction crew
and not by the Commonwealth of Massachusetts or Morgan Stanley?
Therefore, I propose that 38 U.S.C. Sec. 4323 be amended to read as
follows:
(d)(1)(D) If the court determines that the employer willfully,
knowingly, maliciously, or with reckless indifference failed to
comply with the provisions of this chapter, in violation of the
employee's federally protected rights, the person shall be
entitled to an award of punitive damages in addition to all
other remedies outlined in this chapter.
Likewise, 38 U.S.C. Sec. 4324(c) must also be amended to provide
for punitive damages awards in cases of willful or malicious
discrimination. I propose section 4324(c) be amended to add a new
subsection (8) to read as follows:
(8) If the court determines that the employer willfully,
knowingly, maliciously, or with reckless indifference failed to
comply with the provisions of this chapter, in violation of the
employee's federally protected rights, the person shall be
entitled to an award of punitive damages in addition to all
other remedies outlined in this chapter.
USERRA must be amended to permit the investigation and discipline of
Federal Employees who violate the Act.
5 U.S.C. Sec. 1215 provides the Office of Special Counsel (OSC)
broad powers to investigate and discipline Federal employees who
violate any ``law, rule or regulation'' falling within its vast
jurisdiction. Unfortunately, USERRA violators have not yet been subject
to the oversight and disciplinary authority of the OSC. USERRA should
be amended to empower OSC to investigate and punish violators
personally for their unlawful discriminatory acts. Personal liability
is the ultimate deterrent and its implementation would have a profound
effect on those unsavory individuals who might otherwise commit a
USERRA violation.
Thus, I propose that 38 U.S.C. Sec. 4324 be amended to provide for
three (3) new subparagraphs (f), (g), and (h) which read as follows:
(f)(1) Except as provided in subsection (g), if the Special Counsel
determines that disciplinary action should be taken against any
employee for having--
(A) committed a prohibited personnel practice, adverse or
unlawful employment practice, or violated any provisions of this
chapter;
(B) violated the provisions of any law, rule, or regulation, or
engaged in any other conduct within the scope of this chapter [37
U.S.C. Sec. Sec. 4301 et seq.];
(C) knowing fully and willfully refused or failed to comply with
an order of the Merit Systems Protection Board, the Special Counsel
shall prepare a written complaint against the employee containing the
Special Counsel's determination, together with a statement of
supporting facts, and present the complaint and statement to the
employee and the Board, in accordance with this subsection.
(2) Any employee against whom a complaint has been presented to the
Merit Systems Protection Board under paragraph (1) is entitled to--
(A) a reasonable time to answer orally and in writing, and to
furnish affidavits and other documentary evidence in support of the
answer;
(B) be represented by an attorney or other representative;
(C) a hearing before the Board or an administrative law judge as
prescribed by 38 U.S.C. Sec. 4324(c)(1)(A);
(D) have a transcript kept of any hearing under subparagraph
(C); and
(E) a written decision and reasons therefore at the earliest
practicable date, including a copy of any final order imposing
disciplinary action.
(3) A final order of the Board may impose disciplinary action
consisting of removal, reduction in grade, debarment from Federal
employment for a period not to exceed 5 years, suspension, reprimand,
or an assessment of a civil penalty not to exceed $1,000.
(4) There may be no administrative appeal from an order of the
Board.
An employee subject to a final order imposing disciplinary action
under this subsection may obtain judicial review of the order by filing
a petition therefore with such court, and within such time, as provided
for under section 7703(b) [5 USCS Sec. 7703(b)].
(g) In the case of an employee in a confidential, policymaking,
policy-determining, or policy-advocating position appointed by the
President, by and with the advice and consent of the Senate (other than
an individual in the Foreign Service of the United States), the
complaint and statement referred to in subsection (f)(1), together with
any response of the employee, shall be presented to the President for
appropriate action in lieu of being presented under subsection (f).
(h)(1) In the case of members of the uniformed services and
individuals employed by any person under contract with an agency to
provide goods or services, the Special Counsel may transmit
recommendations for disciplinary or other appropriate action (including
the evidence on which such recommendations are based) to the head of
the agency concerned.
(2) In any case in which the Special Counsel transmits
recommendations to an agency head under paragraph (1), the agency head
shall, within 60 days after receiving such recommendations, transmit a
report to the Special Counsel on recommendation and the action taken,
or proposed to be taken, with respect to each such recommendation.
USERRA must be amended to provide strict timelines for the
investigation and processing of complaints brought before DOL
VETS
A servicemember who believes that he or she fell victim to a USERRA
violation may choose to file a complaint with the Merit Systems
Protection Board or with the Secretary of Labor. 38 U.S.C.
Sec. 4324(b); 38 U.S.C. Sec. 4322; 5 CFR Sec. 1208.11. As currently
drafted, USERRA fails to provide a mechanism for the timely
investigation and resolution of complaints for individuals who elect
the latter option. The length of time DOL VETS requires to investigate
and process a single USERRA claim is unacceptable, constituting an
affront to Congressional intent and the plain meaning of the Act, which
unambiguously provides for ``the prompt reemployment'' of
servicemembers, in order to ``minimize the disruption'' to the civilian
lives of servicemembers. 38 U.S.C. Sec. 4301. If DOL VETS is not
disbanded, I implore you to amend 38 U.S.C. Sec. 4322 to provide strict
timelines that will require DOL VETS to provide relief for our Nations
veterans within a one hundred and eighty day (180) time period.
Thus, I propose that 38 U.S.C. Sec. 4322 be amended to read as
follows:
c. The Secretary shall, upon request, provide technical
assistance to a potential claimant with respect to a complaint under
this subsection, and when appropriate, to such claimant's employer.
d. The Secretary shall investigate each complaint submitted
pursuant to subsection (a). Such investigation shall in no circumstance
extend beyond one hundred and eighty days (180) days. If the Secretary
determines as a result of the investigation that the action alleged in
such complaint occurred, the Secretary shall attempt to resolve the
complaint by making reasonable efforts to ensure that the person or
entity named in the complaint complies with the provisions of this
chapter. (Emphasis added)
e. If the efforts of the Secretary with respect to any complaint
filed under subsection (a) do not resolve the complaint, the Secretary
shall notify the person who submitted the complaint of--
1. the results of the Secretary's investigation; and
2. the complainant's entitlement to proceed under the
enforcement of rights provisions provided under section 4323 (in the
case of a person submitting a complaint against a State or private
employer) or section 4324 (in the case of a person submitting a
complaint against a Federal executive agency or the Office of Personnel
Management).
USERRA must be amended to require the payment of pre-judgment interest
on all back pay awards.
As currently drafted, 38 U.S.C. Sec. 4323(d)(1)(B) provides that,
``[t]he court may require the employer to compensate the person
[claimant] for any loss of wages or benefits suffered by reason of the
employer's failure to comply with the provisions of this chapter.''
This section should be amended to specifically provide for the payment
of pre-judgment interest on back pay awards for three (3) reasons: (i)
an award of pre-judgment interest is necessary to fully compensate the
victim; (ii) Congress intended for awards of back pay to include an
award of pre-judgment interest; and, (iii) it is necessary in order to
provide the same level of protection to victims of USERRA violations
that Congress has extended to all other victims of employment
discrimination.
An award of back pay lacking accrued interest fails to properly
compensate the victim for his or her actual damages. For example,
paying someone in 2007 for a loss that was suffered in 2002 does not
take into account two (2) undeniable market forces that effect the
contemporary value of money: inflation and opportunity cost or time
value. If an aggrieved veteran receives an award of back pay in 2007
for lost wages occurring in 2002, inflation will have devalued that sum
to a measurable extent. Furthermore, not having had that money in his
or her possession over the past five (5) years caused the victim to
lose his or her opportunity to invest that sum and earn interest.
It is true that neither Sec. Sec. 4323(d)(1)(B) nor 4324(c)(2)
expressly guarantees a successful claimant interest on an award of back
pay. Nonetheless, Congress clearly intended that veterans discriminated
against in violation of USERRA should receive interest on awards.
Section 4323(d)(3) expressly provides for the payment of prejudgment
interest for awards against State and private employers. Additionally,
under USERRA's predecessor, the Veterans' Reemployment Rights Law 1940
(VRR), prejudgment interest was commonly awarded, a fact that was well
known to Congress at the time of USERRA's enactment.\7\ Prejudgment
interest is routinely awarded in all other employment discrimination
cases.
---------------------------------------------------------------------------
\7\ See, Captain Samuel F. Wright, JAGC, USNR article, ``Does
USERRA Provide Interest on Back Pay Awards?'' Law Review No. 0611,
http://www.roa.org (last visited April 2006).
Prejudgment interest serves to compensate for the loss of money
due as damages from the time a claim accrues until judgment is
entered, thereby achieving full compensation for the injury
these damages are intended to redress . . . [T]o the extent the
damages awarded to the plaintiff represent compensation for
lost wages, it is ordinarily an abuse of discretion not to
include prejudgment interest. Fink v. City of New York, 129
F.Supp 511, 525-26 (E.D.N.Y. 2001) (Addressing interest on back
---------------------------------------------------------------------------
pay awards under USERRA).
Until the statutory language is amended to unambiguously include
interest on awards for USERRA violations, zealous agency attorneys will
continue to argue that the absence of an express entitlement to an
award of interest is evidence that such an award is NOT mandatory.
Given the regularity with which these cases take years to resolve,
prejudgment interest is an essential part of any compensatory remedy.
Therefore, I propose that 38 U.S.C. Sec. 4323(d)(1)(B) be amended
to read as follows:
The court may require the employer to compensate the person
[claimant] for any loss of wages or benefits, INCLUDING
INTEREST, suffered by reason of the employer's failure to
comply with the provisions of this chapter. (Emphasis added)
As noted above, sections 4301(b) and 4331(b)(1) demand that Federal
employees receive at least the same degree of protection and quality of
benefits as all other employees under USERRA. Consequently, I propose
that Sec. 4324(c)(2) also be amended, and that it read as follows:
(2) If the Board determines that a Federal executive agency or the
Office of Personnel Management has not complied with the provisions of
this chapter [38 USCS Sec. Sec. 4301 et seq.] relating to the
employment or reemployment of a person by the agency, the Board shall
enter an order requiring the agency or Office to comply with such
provisions and to compensate such person for any loss of wages or
benefits, INCLUDING INTEREST, suffered by such person by reason of such
lack of compliance. (Emphasis added).
USERRA must be amended to make injunctive and interim relief mandatory
where appropriate.
Under the current statutory structure, section 4323(e) of USERRA
permits courts to invoke their full equity powers to remedy violations
at the courts' discretion. Section 4324 contains no provision regarding
the courts' power to grant equitable relief. In 2005 the Seventh
Circuit Court of Appeals upheld a lower court decision denying
injunctive relief under section 4323(e) in Bedrossian v. Northwestern
Memorial Hospital, 409 F.3d 840 (7th Cir 2005). Dr. Bedrossian, in
addition to his military service in the Air Force Reserves, was
employed as a physician and professor at Northwestern Memorial
Hospital. The Hospital sought to fire Dr. Bedrossian because of the
inconvenience caused by his military service and the Doctor responded
by seeking an injunction. The trial court held, and the Seventh Circuit
affirmed, that regardless of the strength of the claimant's case, an
injunction was not an available remedy. This decision should be
overruled.
By merely, changing the word ``may'' in section 4323(e) to
``shall'', Congress could ensure that equitable relief is available to
all USERRA victims when appropriate. The claimant would still need to
demonstrate his or her entitlement to equitable relief in the form of
an injunction. However, under the proposed amendment, once the claimant
has established that an injunction is appropriate, the court would be
required to grant it.
This proposal is one of many contained in H.R. 3393, the Reservists
Access to Justice Act (RAJA), sponsored by Representative Artur Davis
(D-AL). RAJA recognizes that the driving force behind the enactment of
USERRA was to support and protect the members of our armed forces. The
national defense interests of our country require that the segment of
our military composed of civilian employees is supported by their
civilian employers. We are currently fighting a global war on terror on
multiple fronts. For the first time in our Nation's history, we are
waging war on a grand scale without conscription and in reliance on an
all volunteer military. Congress recognizes this and strongly supports
this Nation's commitment to voluntary military service. Nonetheless:
Congress also recognizes that the reliance on volunteers means
that we must include substantial incentives for young men and
women to join and remain in our Nation's uniformed services. We
also must mitigate the disincentives to service, including the
realistic fear that ``if I sign up, I will lose my civilian
job.'' \8\
---------------------------------------------------------------------------
\8\ See, Captain Samuel F. Wright, JAGC, USNR article, ``Firmer
Teeth: Legislation introduced to enhance USERRA enforcement'' Law
Review No. 0754, http://www.roa.org (last visited, October 2007).
Thus, I, too, propose that 38 U.S.C. Sec. 4323 be amended to add a
---------------------------------------------------------------------------
new subsection (e) which reads as follows:
The court SHALL use its full equity powers, including temporary
or permanent injunctions, temporary restraining orders, and
contempt orders, to vindicate fully the rights or benefits of
persons under this chapter. (Emphasis added)
Pursuant to 38 U.S.C. Sec. 4301(b), ``It is the sense of Congress
that the Federal Government should be a model employer in carrying out
the provisions of this chapter [38 USCS Sec. Sec. 4301 et seq.]'' With
this in mind, Congress enacted 38 U.S.C. Sec. 4331(b)(1) which states,
in relevant part:
The Director of the Office of Personnel Management (in
consultation with the Secretary and the Secretary of Defense)
may prescribe regulations implementing the provisions of this
chapter [38 USCS Sec. Sec. 4301 et seq.] with regard to the
application of this chapter [38 USCS Sec. Sec. 4301 et seq.] to
Federal executive agencies (other than the agencies referred to
in paragraph (2)) as employers. Such regulations shall be
consistent with the regulations pertaining to the States as
employers and private employers, except that employees of the
Federal Government may be given greater or additional rights.
(Emphasis added).
Therefore, any amendment to Sec. 4323 resulting in greater benefits
to an employee must also, by law, be reflected in a comparable
amendment to Sec. 4324. As a result, I also propose that section
4324(c) be amended to provide a new subsection (5) that reads as
follows:
The Merit System Protection Board or Presiding Administrative
Judge SHALL use its full equity powers, including temporary or
permanent injunctions, temporary restraining orders and
contempt orders, to vindicate fully the rights or benefits of
persons under this chapter. (Emphasis added)
Additionally, USERRA should be amended to provide for interim
relief comparable to that afforded to other employees under 5 U.S.C.
Sec. 7701(b)(2) for deserving section 4324 claimants. 5 U.S.C.
Sec. 7701(b)(2) directs the Merit Systems Protection Board (MSPB or
Board) to award successful Appellants, ``the relief provided in the
decision effective upon making the decision, and remaining in effect
pending the outcome of any petition for review under subsection (e).''
In contrast, USERRA does not require a Federal Executive Agency under
section 4324 to furnish any relief until a final decision has been
entered.
Thus, a claimant who successfully established an unlawful
employment practice may be required to remain unemployed and
uncompensated for a period of up to two (2) years until the MSPB enters
a final decision, whereas, an otherwise identical claimant who files an
action before the Equal Employment Opportunity Commission is entitled
to interim relief immediately upon the entering of an initial decision.
This inequity cannot be justified and must be remedied.
The MSPB's interim relief authority pursuant to 5 U.S.C.
Sec. 7701(b)(2) must be extended to USERRA claims. Therefore, I propose
that 38 U.S.C. Sec. 4324(c) be amended to provide a new subsection (6)
that reads as follows:
(e)(1) If an employee or applicant for employment is the
prevailing party in an appeal under this subsection, the
employee or applicant shall be granted the relief provided in
the decision effective upon the making of the decision, and
remaining in effect pending the outcome of any petition for
review under subsection (d), unless--
(A)(i) the relief granted in the decision provides that such
employee or applicant shall return or be present at the place
of employment during the period pending the outcome of any
petition for review under subsection (e); and
(ii) the employing agency, subject to the provisions of
subparagraph (a), determines that the return or presence of
such employee or applicant is unduly disruptive to the work
environment.
(2) If an agency makes a determination under subparagraph (A)
that prevents the return or presence of an employee at the
place of employment, such employee shall receive pay,
compensation and all other benefits as terms and conditions of
employment during the period pending the outcome of any
petition for review under subsection (d).
USERRA must be amended to unambiguously preclude USERRA claims from
binding arbitration agreements.
38 U.S.C. Sec. 4302(b) expressly states that any law, agreement, or
practice which, ``reduces, limits, or eliminates in any manner any
right or benefit'' provided under USERRA is preempted by the statute.
Nonetheless, the Fifth Circuit Court of Appeals recently held that this
provision only preempts agreements limiting the claimants' substantive
rights and not his or her procedural rights (e.g. the right to pursue a
lawsuit in federal court as opposed to being required to proceed via
arbitration). See, Garrett v. Circuit City Stores, Inc., 449 F.2d 672
(5th Cir. 2006). This is an egregious misapplication of the text and
purpose and intent of USERRA and must be overturned by legislative
mandate. Veterans must not be denied the procedural due process of law
as a result of employment agreements contradicting federal law.
Accordingly, I implore you to support H.R. 3393, and its proposed
amendment to Chapter 1 of Title 9 of the United States Code, which
would unambiguously exempt USERRA disputes from binding arbitration
agreements and expressly overrule Garrett. In that vein, I too propose
that 38 U.S.C. Sec. 4322 be amended to add a new subsection that reads
as follows:
(g) Chapter 1 of title 9 shall not apply with respect to
employment or reemployment rights or benefits claimed under
this subchapter.
USERRA must be amended to adopt two additional exceptions to section
4312's five-year limitation on section 4313 reemployment
rights.
As currently drafted, USERRA's reemployment protections lapse after
a five-year period of consecutive active duty service. Section 4312(c)
establishes eight specific exceptions to this five-year limitation,
thereby enabling employees to serve five or more years of continuous
active duty while working for a single employer and retaining his or
her reemployment rights under the Act. Additionally, the Department of
Labor (DOL) regulations implementing USERRA recognize a ninth
exception.
DOL USERRA regulation Sec. 1002.103 applies to service members who
are forced to mitigate economic losses suffered as a result of an
employer's USERRA violation. The regulation provides, in relevant part,
that a service member who remains or returns to the armed services in
an attempt to ``mitigate economic losses caused by the employer's
unlawful refusal to reemploy that person,'' \9\ shall not be required
to count the time ``against the five-year limit.'' \10\ The regulation
is grounded in equitable considerations. Those same considerations
demand that the exception created by the regulation be fully
incorporated into the text of the statute.
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\9\ 20 C.F.R. 1002.103
\10\ Id.
---------------------------------------------------------------------------
I propose that 38 U.S.C. Sec. 4312(c) be amended to add a new
subsection (5) which reads as follows:
(5) which is undertaken by an individual who remains in or
returns to uniformed service in order to mitigate economic
damages suffered as a consequence of the employer's unlawful
failure to comply with the provisions of this chapter.
An additional exception should also be added for National Guard
members who are called to state active duty service in response to
homeland emergencies. As currently drafted, time spent fulfilling
active duty training commitments, time on active duty support for
critical missions and time called upon for Federal active duty National
Guard service are all exempt from consideration in calculating a
person's 4312 time. Presumably, these missions are considered so
important that they warrant preferential treatment. Under this
reasoning, active duty service in furtherance of a State's emergency
response is an equally compelling interest and should receive
equivalent treatment.
Homeland emergency response is an integral component of our
homeland security strategy. The fact that disasters and emergencies
requiring the mobilization of active duty National Guard forces are
generally unforeseeable adds weight to the argument that service men
and women should not be penalized in their USERRA reemployment rights
because they were required to answer the call to service. USERRA must
be amended to take into account the sacrifices of guardsmen and their
families during times of crisis. National Guard members who respond to
such crises in State service should be entitled to the same protections
as their federal counterparts.
Therefore, I propose that 38 U.S.C. Sec. 4312(c) be amended to
provide for a new subsection (6) that reads as follows:
(6) service in the National Guard under competent state
military authority while in support of the homeland, in
response to a natural disaster, in response to aid to civil
authorities, or for any other reason that the governor of the
state declares the need for a state activation of the National
Guard is necessary.
USERRA must be amended so that the term ``adjudication'' in
Sec. 4324(c)(1) is defined as providing the same procedures
available to appellants under 5 U.S.C. Sec. 7701.
In its current incarnation, USERRA does not expressly outline the
formal due process to which claimants are entitled when bringing a
claim for relief of an alleged violation of the Act. In Kirkendall v.
Department of the Army, the Court of Appeals for the Federal Circuit
concluded that every USERRA claimant has a right to a hearing and that
he or she is entitled to the same procedures as an ``appellant'' under
5 U.S.C. Sec. 7701(a). See, Kirkendall v. Department of the Army, 479
F.3d 380 (Fed. Cir. 2007).
5 U.S.C. Sec. 7701(a) expressly provides for basic due process
formalities in other appeals brought before the MSPB. USERRA should be
amended so that both sections 4323 and 4324 unambiguously state the due
process rights afforded to claimants. USERRA claimants must be granted
the same procedural protections that the United States Code extends to
other employees. Codification of the holding in Kirkendall will
effectively extend the due process protections of 5 U.S.C. Sec. 7701(a)
to USERRA claimants and correct any enduring ambiguities.
Therefore, I propose that 38 U.S.C. Sec. 4323(a) be amended to
incorporate a new subsection (3) which reads as follows:
(3) Any employee, or applicant for employment, who submits
any claim or action for relief pursuant to the rights outlined
in this chapter [38 U.S.C. Sec. Sec. 4301 et seq.] shall have
the right:
(A) to a trial by Judge or Jury, for which a transcript
will be kept; and
(B) to be represented by an attorney or other
representative.
In addition, I propose that 38 U.S.C. Sec. 4324(c)(1) be amended to
provide for a new subparagraph (A) which reads as follows:
(A) Any employee, or applicant for employment, who submits
any claim or action for relief pursuant to the rights outlined
in this chapter [38 U.S.C. Sec. Sec. 4301 et seq.] shall have
the right:
(i) to an in person hearing for which a transcript will be
kept; and
(ii) to be represented by an attorney or other
representative.
(iii) the employee shall receive official time off to
prosecute his/her appeal to include time to request and respond
to Discovery Demands and/or orders from the MSPB or Federal
Circuit.
USERRA section 4324 must be amended to state unequivocally that there
is no Statute of Limitations provision governing the time
period in which to bring a claim under the Act.
Section 4323(i) clearly states that ``[n]o Statute of Limitations
shall apply to any proceeding under this chapter [38 USCS
Sec. Sec. 4301 et seq.].'' Sections 4301 and 4331 compel Congress to
amend section 4324 to provide the same protection to Federal government
employees.
The United States Courts of Appeals for the Federal Circuit has
already held that no Statute of Limitations applies to cases brought
under Sec. 4324. See, Hernandez v. Department of the Air Force, 2007
U.S. App. Lexis 20280 (August 27, 2007). Nonetheless, codification of
this principle is the only way to ensure that future Federal Executive
Agencies will not successfully overturn this ruling and reinstate the
arbitrary distinction between Federal employees and all other employees
for the purpose of USERRA Statute of Limitations claims.
Therefore, I propose that 38 U.S.C. Sec. 4324 be amended to add a
new subsection (e) which reads as follows:
(e) Inapplicability of statute of limitations. No statute of
limitations shall apply to any proceeding under this chapter
[38 USCS Sec. Sec. 4301 et seq.].
CONCLUSION
Army Chief of Staff General George W. Casey Jr. once remarked that
``Our reserve components are performing magnificently, but in an
operational role for which they were neither designed nor resourced . .
. They are no longer a strategic reserve, mobilized only in national
emergencies. They are now an operational reserve deployed on a cyclical
basis,'' enabling the Army to sustain operations. ``Operationalizing''
the reserve components ``will require national and state consensus, as
well as the continued commitment from employers, soldiers and
families,'' Casey said (emphasis added). ``It will require changes to
the way we train, equip, resource and mobilize.''
I could not agree with the above statement more. As the National
Guard and Reserves change to an operational reserve, it is vital to our
national security and homeland defense to ensure members of these units
are protected from losing their full-time careers while defending the
country at home and abroad. The extensive deployment of Reservists and
members of the National Guard in furtherance of the Global War against
Terrorism has only compounded the inequity and made the need for
congressional intervention more pronounced. The time for a major
overhaul of the laws that protect the employment rights of members of
the National Guard and Reserves is upon us.
Our national defense and homeland security depend on the men and
women in our National Guard and Reserves and, while they are protecting
us, we should be protecting their civilian jobs. We never want to be in
the situation where members of the reserves need to pick between our
national defense and their civilian careers, as that will undermine our
security. Unfortunately, too many have been placed in that situation
and after many deployments, both overseas and stateside guarding our
bridges, tunnels, nuclear power plants, and responding to natural
disasters, many have chosen their civilian careers over their service
to our country. This exodus of highly skilled and trained personnel
could undermine our recruiting efforts and result in a hollowed out
military force unless Congress takes immediate action to strengthen the
weak links. Fixing USERRA is a good first step to taking away the fear
of a deployment and how that deployment will have a negative impact on
their civilian careers.
The proposed recommendations outlined above are pivotal in
advancing our national defense interests and achieving parity and
equity in the workplace. USERRA was designed and implemented to provide
comprehensive anti-discrimination protection for military personnel in
civilian employment. In order to effectuate this congressional mandate,
we must improve opportunities for injured veterans to pursue their
rights under the Act, increase the statutory mechanisms that serve as
deterrents to unlawful employer behavior and create uniformity in the
law's protections to all USERRA-eligible employees, regardless of their
employer.
If these changes are not made to USERRA, the situation will only
remain the same, whether it is the Department of Labor or the Office of
Special Counsel handling the investigation of complaints. Significant
measures must be taken by Federal agencies, state employers and private
employers to protect members of the military service. As soldiers
called to duty have begun to return home and re-enter the workforce, my
firm has already seen an influx in USERRA allegations. With the Global
War on Terrorism continuing with no clear end in sight, the number of
National Guardsmen and Reservists called to second, third and fourth
tours of duty will force an increase in the number of discrimination
cases.
I ask you to place yourself in the shoes of a Reservist or National
Guardsman who has been deployed twice since 2001 to serve his country
for a year or longer and was subsequently passed over for a position
with the Federal government due to that same service. Who would you
want to assist you? The Department of Labor, where only 7% of the cases
are referred for prosecution? The Office of Special Counsel, which has
a 25% correction rate? Or a highly skilled privately retained attorney
with a 70% correction rate? Clearly, the answer is for the Federal
government to rely on private attorneys to protect our fighting men and
women. The only way for private attorneys to properly bear that burden
is for Congress to pass a law that mandates attorneys' fees so more
firms like mine would be willing to provide legal services at no cost
to our citizen soldiers.
USERRA should no longer be a second-class anti-discrimination
statute; we owe it to our service men and women to provide them with
the premier anti-discrimination law in the land. The only way to have
this become a reality is through proper representation, which has not
been demonstrated by the Department of Labor and the Office of Special
Counsel. Through the aggressive and successful representation of
private attorneys, allegations of discrimination under USERRA will be
prosecuted in a timely and efficient manner, giving military personnel
the respect they deserve in return for protecting our country. Instead
of holding claims up in a referral program filled with bureaucracy and
red tape, establishing the above recommendations will allow private
attorneys to freely offer their representation and eliminate a source
of unnecessary frustration to those who have served. This type of
representation will encourage military service in our all-volunteer
forces and ensure that those who have served are properly cared for
upon their return home, now more than ever. The proposed changes
represent the least restrictive means possible for effectuating
legitimate equality in the workplace and guaranteeing that no one other
than a USERRA violator will bear the costs of the improved enforcement.
As currently drafted, the Uniformed Services Employment and
Reemployment Rights Act 1994 (USERRA) fails to adequately support
military personnel upon their return to civilian employment. Hon.
Representative Artur Davis (D-AL) recently sponsored new legislation,
H.R. 3393, to address some of the law's deficiencies. I urge you to
demonstrate your strong commitment to the brave men and women who serve
in the armed forces by supporting these amendments and by incorporating
the additional proposals contained within this correspondence into a
new more comprehensive updating of USERRA. Please fight to get this
updated USERRA bill passed as quickly as possible. Thank you.
Prepared Statement of Ronald F. Chamrin, Assistant Director,
Economic Commission, American Legion
Madam Chairwoman and Members of the Subcommittee:
Thank you for this opportunity to present The American Legion's
view on some of the Department of Veterans Affairs (VA) expiring
programs. The majority of the programs discussed today received
increased payments via the passage of the Veterans Benefits Improvement
Act of 2004, Public Law (P.L.) 108-454. Due to the expiration of
temporary increased payments on January 1, 2008, many veterans will
receive a lower monthly payment for earned education benefits. The
American Legion opposes any reduction in education assistance payments.
The American Legion recommends that the dollar amount of the
entitlement be indexed to the average cost of college education
including tuition, fees, textbooks and other supplies for a commuter
student at an accredited university, college or trade school for which
a veteran qualifies.
Demonstration Project of Adjustable Rate Mortgages--Section 3707 and
Demonstration Project on Hybrid Adjustable Rate Mortgages--
Section 3707a
The American Legion supports the reinstatement of the Adjustable
Rate Mortgage Programs that will expire at the end of this calendar
year. Since the VA Home Loan program was enacted as part of the
original Servicemen's Readjustment Act of 1944 (the GI Bill), VA has
guaranteed more than 18.2 million home loans totaling nearly $938
billion for veterans to purchase or construct a home, or to refinance
another home loan on more favorable terms. In the last five years
(2001-2006), VA has assisted more than 1.4 million veterans in
obtaining home loan financing totaling almost $197 billion. About half
of these loans, just over 730,000, were to assist veterans to obtain a
lower interest rate on an existing VA guaranteed home loan through VA's
Interest Rate Reduction Refinancing Loan Program.
The American Legion also supports administrative and/or legislative
efforts that will improve and strengthen the Loan Guaranty Service's
ability to serve America's veterans. H.R. 4884, The Helping Our
Veterans to Keep Their Homes Act of 2008, addresses the expiration of
these programs. In reference to the topics before this Committee today,
The American Legion supports the following portions of the proposed
legislation in H.R. 4884:
Section 2(A)
(c) Extension of demonstration project on adjustable rate
mortgages.--Section 3707(a) of such title is amended by
striking ``2008'' and inserting ``2018''.
(d) Extension of demonstration project on hybrid adjustable
rate mortgages.--Section 3707A(a) of such title is amended by
striking ``2008'' and inserting ``2012''.
PROGRAMS AFFECTED BY THE VETERANS BENEFITS IMPROVEMENT ACT OF 2004
(P.L. 108-454)
Apprenticeship and On-Job-Training (OJT)
The American Legion opposes any reduction in education assistance
payments. Due to the expiration of temporary law that increased the OJT
payment to 85 percent of the Montgomery GI Bill (MGIB) payment rate in
2005, the OJT payment rate dropped to 75 percent on January 1, 2008.
The OJT payment rates have dropped to $825.75, $605.55, and $385.35.
The American Legion recommends that the dollar amount of the
entitlement should be indexed to the average cost of college education
including tuition, fees, textbooks and other supplies for a commuter
student at an accredited university, college or trade school for which
a veteran qualifies.
Approximately 7,000 veterans are immediately affected due to the
drop in monthly payment rates. The American Legion has long advocated
for increased education benefits and raising the rates of the
entitlement. Lowering benefits is an insult to all veterans and an
extension of the OJT payment rates implemented in P.L. 108-454 should
be indefinite.
Not every veteran is destined for college; therefore, the MGIB
needs to be more accessible for those veterans with vocational
aspirations other than college. The overall costs of these vocational
training and licensing programs far exceed the monthly stipend provided
under the traditional ``college-student-for-36-months'' approach in the
current MGIB.
Veterans should be afforded the opportunity to attend programs that
will lead to the vocation of their choice. In addition, a higher
percentage of today's servicemembers are married (with children in the
majority of cases) when they are discharged. Meeting the financial
obligations to sustain and maintain a household is paramount and often
serves as a major obstacle to their timely use of the MGIB. Every
effort must be made to empower every veteran with options to make the
best vocational choice to help them achieve the American dream.
P.L. 108-454 amended Title 38, U.S.C. section 3032 subsection (c)
from October 1, 2005 to January 1, 2008. (MGIB-AD):
(1) The reference to ``75 percent'' in subparagraph (A) were a
reference to ``85 percent'';
(2) The reference to ``55 percent'' in subparagraph (B) were a
reference to ``65 percent''; and
(3) The reference to ``35 percent'' in subparagraph (C) were a
reference to ``45 percent''.
P.L. 108-454 amended Title 10, U.S.C. section 16131, subsection (d)
from October 1, 2005 to January 1, 2008. (MGIB-SR):
(1) the reference to ``75 percent'' in subparagraph (A) were a
reference to ``85 percent'';
(2) the reference to ``55 percent'' in subparagraph (B) were a
reference to ``65 percent''; and
(3) the reference to ``35 percent'' in subparagraph (C) were a
reference to ``45 percent''.
Post-Vietnam Era Veteran's Educational Assistance Program (VEAP)
The American Legion opposes any reduction in education assistance
payments. Due to the expiration of the P.L. 108-454 that increased the
OJT payment to 85 percent of the VEAP payment rate in 2005, the OJT
payment rate dropped to 75 percent on January 1, 2008. The American
Legion recommends that the dollar amount of the entitlement should be
indexed to the average cost of college education including tuition,
fees, textbooks and other supplies for a commuter student at an
accredited university, college or trade school for which a veteran
qualifies.
P.L. 108-454 amended Title 38, U.S.C. section 3233, subsection (a)
from October 1, 2005 to January 1, 2008.
(1) the reference to ``75 percent'' in paragraph (1) were a
reference to ``85 percent'';
(2) the reference to ``55 percent'' in paragraph (2) were a
reference to ``65 percent''; and
(3) the reference to ``35 percent'' in paragraph (3) were a
reference to ``45 percent''.
Survivors and Dependents Educational Assistance (DEA)
The American Legion opposes any reduction in education assistance
payments due to the expiration of the P.L. 108-454 that increased the
OJT payment of DEA recipients in 2005 and dropped on January 1, 2008.
P.L. 108-454 amended Title 38, U.S.C. section 3687, subsection
(b)(2) from October 1, 2005 to January 1, 2008.
(A) the reference to ``$574 for the first six months'' were a
reference to ``$650 for the first six months'';
(B) the reference to ``$429 for the second six months'' were a
reference to ``$507 for the second six months''; and
(C) the reference to ``$285 for the third six months'' were a
reference to ``$366 for the third six months''.
Incarcerated Veterans Transition Program (IVTP)
The American Legion does not have a position regarding the
Incarcerated Veterans Transition Program.
Department of Labor (DOL) Veterans Employment and Training Program
(VETS) Claim Referral Program to the Office of Special Counsel
(OSC)
The American Legion does not have a position regarding the
expiration of the Demonstration Project with the Department of Justice
(DOJ) Office of Special Counsel (OSC) with Uniformed Services
Employment and Reemployment Rights Act (USERRA) claims.
CONCLUSION
Former President Franklin Delano Roosevelt once said, ``The test of
our progress is not whether we add more to the abundance of those who
have much, it is whether we provide enough for those who have little.''
Different options for purchase of homes and the ability to afford an
education must constantly be provided to veterans.
The American Legion looks forward to continue working with the
Subcommittee to assist the nation's veterans. Madam Chairwoman and
Members of the Subcommittee, this concludes my testimony.
Prepared Statement of Justin M. Brown, Legislative Associate,
National Legislative Service, Veterans of Foreign Wars of the United
States
MADAM CHAIRWOMAN AND MEMBERS OF THIS SUBCOMMITTEE:
On behalf of the 2.3 million members of the Veterans of Foreign
Wars of the United States and our Auxiliaries, I would like to thank
you for the opportunity to testify before this distinguished body.
Today, as we consider the veterans' issues of transition and
stabilization--employment, housing and education--I ask that we briefly
reflect on a historical comparison.
In 1973, following the Vietnam War, the all-volunteer force was
implemented. In order to fill the ranks of a military worn down by
years of fighting in Vietnam, recruitment standards were reduced. In
1976, the Post-Vietnam Era Veterans' Educational Assistance Program
(VEAP) was created as a recruitment incentive to help fill the ranks.
However, relative to programs that came before VEAP, it provided the
least amount of education benefits to veterans.
From 1973-1985, the military had lowered recruitment standards and
meager transition benefits, resulting in a group of veterans that is
three to four times more likely to be homeless than their non-veteran
counterparts. In contrast, Vietnam veterans prior to this time period
are only 1 to 1.4 times more likely to be homeless than their non-
veteran counterparts. Currently, the most common attribute of a
homeless veteran is not combat, it is their age and relation to public
policy.
``The commonly held notion that the military experience provides
young people with job training, educational and other benefits, as well
as the maturity needed for a productive life, conflicts with the
presence of veterans among the homeless population.''--Libby Perl, CRS
Report RL34024
If we are to use history as a marker, we might suggest that a
robust, attractive, initial education investment would have alleviated
many of the issues America and its veterans are coping with today.
If we fail on the front end with hand-up programs such as
education, job training, and vocational rehabilitation, we miss an
opportunity to create a sound stabilization and transition program. In
the end, the American people pay for expensive programs that are
difficult to administer, produce limited results, and often fail to
achieve their objectives.
We ask that Congress closely monitor and consider the future
implications of lowered recruiting standards. Raising the initial
educational benefit could offset some of the reduction in recruitment
standards while providing the best tool to transition from the military
to the civilian workforce. With the war fast approaching its fifth
year, veteran educational benefits have not been adjusted to reflect
the cost of an education. Almost daily, a new media article about the
failure of the GI-Bill to pay for veterans' education can be found
nullifying what used to be the DOD's most effective recruitment tool.
We have been down this weary road before; DOD is lowering
recruitment standards, and the value of the GI-Bill continues to
falter. We ask that Congress be proactive in their approach to
veterans, the military, and our future.
Incarcerated Veterans Transition Program (IVTP)
According to the Department of Labor (DOL), the Incarcerated
Veterans Transition Program, managed by DOL and Veterans' Employment
and Training Service (VETS), is designed to help ex-offender veterans
who are at risk of homelessness to reenter the workforce. The program
provides direct services--through a case management approach--to link
incarcerated veterans with appropriate employment and life skills
support as they transition from a correctional facility into the
community.
We are supportive of the spirit of the program, but we need to see
assurances of its effectiveness. If DOL can substantiate that IVTP has
been effective in helping veterans stay out of prison and/or jail the
VFW supports IVTP.
Uniformed Services Employment and Reemployment Rights Act (USERRA)
According to the Office of Special Counsel (OSC), USERRA prohibits
discrimination against persons because of their service in the Armed
Forces Reserve, the National Guard, or other uniformed services. USERRA
prohibits an employer from denying any benefit of employment based on
an individual's membership, application for membership, performance of
service, application for service, or obligation for service in the
uniformed services. USERRA also protects the right of veterans,
reservists, National Guard members, and certain other members of the
uniformed services to reclaim their civilian employment after being
absent due to military service or training.
The VFW appreciates the rigor that the four departments (DOJ, OSC,
DOD, DOL) have taken in ensuring that veterans are not discriminated
against based on military status. The VFW agrees with recent testimony
from the GAO's Brenda Farrell that ``suggests Congress make a single
entity accountable for maintaining visibility over the entire USERRA
complaint resolution process. Designating one single entity would, in
GAO's view, enhance efforts to improve overall program results.''
Demonstration Project on Adjustable Rate Mortgages
The VFW is happy to support legislation that would make permanent
the authority to provide increased financing opportunities to veterans
under the VA Home Loan Program by allowing VA to offer conventional and
hybrid Adjustable Rate Mortgages (ARMs). Under P.L. 102-547, the VA
Secretary was authorized to begin a demonstration project to begin
offering adjustable rate mortgages through the VA Home Loan program
that are similar to the Department of Housing and Urban Development's
(HUD) programs.
ARMs allow the mortgagee to periodically adjust the interest rate
in accordance with the provisions of the mortgage. ARMs have proven to
be very popular alternatives to conventional home financing. They
typically offer a lower-than-normal initial interest rate, which may
make it easier for our veterans to obtain affordable financing.
Moreover, if interest rates drop, the home buyer can save thousands of
dollars above what they would pay using a conventional mortgage.
Despite these advantages, there are some drawbacks. If the interest
rates increase, the home buyer may end up paying more than they
normally would, even with the reduced initial interest rate.
We feel that Title 38, section 3707 does an excellent job of
safeguarding our veterans from some of the negative consequences this
type of mortgage can have. The law contains both periodic and overall
interest rate caps to help protect the borrower. Periodic caps limit
the amount that interest may increase from one year to the next, while
overall caps prevent the interest rate from increasing above a certain
amount over the life of the loan. The current VA program limits the
periodic cap to one percent and the overall cap to five percent over
the life of the loan.
The VFW believes that permanently expanding the financing
opportunities for our veterans is the right thing to do as it helps
assure them of the opportunity to pursue the American Dream of
homeownership. The advantages of the ARM program may make it a viable
alternative for many of our veterans, while the safeguards in the
program lessen their chances of harm and, further, it brings veterans
in line with what is available to non-veterans through HUD.
Post-Vietnam Era Veterans' Educational Assistance Program (VEAP)
The Post-Vietnam Era Veterans' Educational Assistance Program was
the first educational benefit created as a recruiting tool. If the
veteran contributed a total of $2,700.00 he/she could receive up to
$8,100.00. If the $2,700 contribution is deducted this equates to
roughly $150.00 a month for 36 months.
The VFW believes that this benefit is inequitable relative to other
educational benefits available.
A $150 monthly benefit would cover roughly 9% of the average cost
of education at a four-year public institution. Only 1% of all VA
educational claims are administered through VEAP and the VFW believes
that remaining and future claims should be administered as a Chapter 30
benefit.
Survivors and Dependants Educational Assistance (Chapter 35)
According to the VA, Dependents' Educational Assistance provides
education and training opportunities to eligible dependents of certain
veterans. The program offers up to 45 months of education benefits.
These benefits may be used for degree and certificate programs,
apprenticeship, and on-the-job training. If you are a spouse, you may
take a correspondence course. Remedial, deficiency, and refresher
courses may be approved under certain circumstances.
Chapter 35 benefits make up 14.78% of the educational benefits used
in 2007. The VFW strongly supports this program, and would like to see
its funding continued.
Thank you for the opportunity to testify. I would be happy to
answer any questions that you or the members of the Committee may have.
Prepared Statement of Todd Bowers, Director of Government Affairs,
Iraq and Afghanistan Veterans of America
Madam Chairwoman and members of the House Committee on Veterans'
Affairs, Subcommittee on Economic Opportunity, on behalf of Iraq and
Afghanistan Veterans of America and our tens of thousands of members
nationwide, I thank you for the opportunity to testify today regarding
the expiring VA programs.
In the interest of time, I will limit my testimony to the
Department of Labor's Veterans Employment & Training Services VETS
program.
IAVA is a proud supporter of the DOL VETS program. I have
personally had the opportunity to meet with staff members that work
with this program and I continue to be thoroughly impressed with their
dedication. I have also spoken to many veterans who have benefited from
DOL programs such as Hire Vets First. These programs are much-needed.
According to the Bureau of Labor Statistics, unemployment among
recently discharged veterans is 11.9%. The rate is even higher for
veterans 18 to 24; 18% of these veterans are unemployed--that's three
times the national average. For the 1.5 million Iraq and Afghanistan
veterans returning home, employment opportunities and protections are a
crucial part of their transition to civilian life. This is also the
single most effective defense in combating homelessness among our
nation's veterans.
The conflicts in Iraq and Afghanistan have drawn heavily on our
reserve component forces. These troops, often the breadwinners of their
families, face serious economic burdens during and after deployment.
Many are businessowners who face tremendous obstacles in ensuring their
businesses are appropriately managed while they are gone. One of my
fellow Marines, when we deployed to Iraq, was forced to rely on the
good-will of his community to ensure his family business did not go
under while he was deployed. He was a proud businessowner, but had
serious difficulties staffing his business while he was deployed.
Without funding for advertising, he was forced to turn to the media to
let them know that he was still open for business.
A Defense Department study in 2000 showed that 40% of reservists
lose income when they are called to active duty. Some 12,000 formal and
informal Uniformed Services Employment and Reemployment Rights Act
(USERRA) complaints were filed by National Guardsmen and Reservists in
FY2004 and FY2005, according to the GAO.
IAVA has called for better outreach and more streamlined referral
system for USERRA complaints. Currently, a service member wishing to
file a complaint is forced to move through hurdles that cross three
federal agencies and an onslaught of paperwork. We also support tougher
enforcement of USERRA protections, and believe that employers who
consistently violate USERRA should be barred from eligibility for
federal government contracts and should face civil and criminal
prosecution. In addition, the GAO has outlined a series of
recommendations regarding USERRA claims referrals, which we hope the
committee will seriously consider in any reauthorization of the OSC
referral program.
Serving your country should not mean sacrificing your civilian
livelihood. Troops returning from Iraq and Afghanistan deserve the best
possible employment protections. We thank this committee for their work
to support and protect our ``citizen soldiers.''
Thank you for your time.
Prepared Statement of Colonel Felix C. Vargas, Jr., USAR (Ret.)
Senior Advisor, American GI Forum of the United States
Madame Chairwoman, Ranking Member Boozman, and distinguished
Members of this Committee, the American GI Forum (AGIF) appreciates
this opportunity to present its views today regarding the issue of
expiring Veterans Affairs programs. The AGIF traditionally has not been
invited to testify before congressional committees on issues of
importance to our men and women who have served and are serving in our
country's armed forces. If my memory serves me correctly, we last
appeared before the U.S. House of Representatives Veterans' Affairs
Committee on 18 May 2004, to update you on our AGIF National Veterans
Outreach Program.
As you may know, the AGIF is a congressionally chartered Veteran
Service Organization (VSO), founded 60 years ago by Dr. Hector P.
Garcia principally to represent the interests and concerns of American
war veterans of Hispanic origin, many of whom were denied their
veterans benefits following the end of World War II. Today, AGIF
remains a vibrant non-profit organization working in concert with all
VSOs to ensure that our nation's commitments to all our returning
military men and women and their families are honored. This includes
especially our newest generation of veterans coming home from the
Global War on Terrorism (GWOT).
Today, we are here to add our support to the continuation of
important veterans support programs, currently managed by the
Departments of Labor and Veterans Affairs. In the interests of time, we
will only address the following programs:
Incarcerated Veterans Transition Program (IVTP)
Department of Labor (DOL) Veterans Employment and
Training Program (VETS) Claim Referral
Apprenticeship and On-Job-Training
Post-Vietnam Era Veterans' Educational Assistance
Program, and
Survivors and Dependents Educational Assistance
Incarcerated Veterans Transition Program (IVTP)
We believe that this program has provided invaluable assistance to
incarcerated veterans, who are within 18 months of release and who are
at risk of homelessness, to re-train and re-enter the workforce. The
funding provided has enabled many such veterans to receive training and
related support services to make a successful transition back into the
workforce and back into their communities.
While the IVTP concept and objectives are sound, we have heard of
instances where incarcerated veterans, once released to the streets,
have fallen through bureaucratic cracks, receiving little if any help.
They have been told that to get follow on assistance, they need to call
the VA, make an appointment, and show up with their DD-214. In these
instances, no efforts were made prior to their release to connect them
to medical facilities, for any needed treatment or medication; to
housing options; or to employment opportunities. One sister VSO
informed us that in cases of released veterans who are terminally ill,
that often no support is given.
We do not believe that any such neglect represents the true intent
of the IVTP. It is important, however, for the Department of Labor to
investigate any reported failure to provide needed follow on transition
support services to an incarcerated veteran upon release.
I am pleased to inform the Subcommittee that my home State of
Washington has taken an important step to help these veterans.
Washington State, working closely with VSOs, issues a booklet to
incarcerated veterans, titled An Incarcerated Veterans Guidebook for
Washington State. The booklet helps the veteran plan for his release
and provides important information, such as addresses, phone numbers,
and Web sites that the veteran can use to connect to programs and other
assistance that are available upon the veteran's release. The booklet
has proved to be such a successful resource that other states have used
it as a model for their own guidebooks for incarcerated veterans.
Again, we support the IVTP and see it as a great support program
for incarcerated veterans. The bugs in the program and any deficiencies
should be corrected to ensure that no incarcerated veteran falls
through the cracks or worse yet is left behind.
DOL Veterans Employment and Training Program (VETS) Claim Referral
The Department of Labor (DOL) Veterans Employment and Training
Program (VETS) constitutes a pillar in the support structure for
veterans. There is no greater assistance that can be provided to our
returning warriors than job-related training, linked to follow-on
employment.
The men and women of our national Guard and Reserve face a unique
employment challenge when they return from active duty to their
communities. All returning reservists are NOT guaranteed that their old
jobs will be waiting for them. I saw this first-hand in Germany in the
late 1980's, where German and other European employers would
essentially give American reservists a hard choice: active duty with
your American military unit or your job in Europe. You cannot have
both. Such was the callous attitude of our so-called allies whose
freedom we had achieved during two world wars and ever since.
Fortunately, in the U.S., we have through the DOL's VETS program
the enforcement of the Uniformed Services Employment and Reemployment
Act (USERRA). USERRA fights discrimination against veterans,
individuals entering military service, and members of the National
Guard and Reserve. The law protects our veterans against retaliation by
employers simply because a veteran attempts to exercise a USERRA right.
Further, the law requires that veterans and others who perform
qualifying service in the uniformed services, including the National
Guard and Reserve, be reemployed by their pre-service employers with
the seniority, status and rate of pay they would have attained if
employment had been continuous.
We understand, Madame Chairwoman, that an issue before your
Subcommittee concerns extension of a demonstration project giving the
Office of Special Counsel (OSC) authority to investigate federal sector
USERRA claims brought by persons whose Social Security number ends in
an odd-numbered digit. We are also informed that under the project, OSC
will also receive and investigate 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.
Our interest here is limited to seeing that aggressive enforcement
of USERRA is carried out across the board, both by DOL and OSC. We
would also like to receive assurances that our reservists living in
foreign countries are covered by a USERRA-like agreement through the
host government.
Assuming that the demonstration project, as administered by OSC,
has shown good results, we would support its extension. We respectfully
request that a report on the demonstration project addressing actions
taken and results be provided to VSOs, thereby allowing us to evaluate
its effectiveness.
Apprenticeship and On-Job-Training (OJT)
This program, run by Veterans Affairs, provides veterans and their
immediate family a great incentive to achieve a co-educational
objective. Eligible persons may receive a training allowance from the
VA to supplement their wages while learning a new skill or trade,
thereby increasing their financial security and job stability during
the training period.
At a time when we see signs of an imminent recession in our
country, it is important that we not lose sight of the contribution
that this program makes in battling unemployment in a weakened economy.
This program is about helping veterans and their families to work and
learn while they prepare to fill jobs in both the private and public
sectors of our economy.
We are concerned that the law that increased OJT payments to 85
percent of the GI Bill payment rate in 2005 expired on 31 December
2007. This means that without new legislation maintaining the 85
percent, the OJT payment rate will drop to 75 percent as of 1 January
2008. Thus, what has been a top OJT (Veteran) payment rate of $935.85
will now drop to $825.75.
Members of the Subcommittee, we urge you to make permanent the OJT
payment rate of 85 percent. You should not allow this rate to revert
back to the 75 percent training rate. Our veterans who depend on these
payments are facing daily increases in housing and the cost-of-living
expenses. They need every cent that can be provided under this program.
The other comment we would make here is that you should consider
offering tax incentives to companies who agree to participate in the
Apprenticeship program. We note that there are too few companies who
participate. For starters, we should see to it that all defense
contractors, many of whom have amassed fortunes by providing products
and services to the U.S. military, become active supporters of and
participants in this Apprenticeship program.
Veterans Educational Assistance Program (VEAP)
VEAP is made available to veterans if they elected to make
contributions from their military pay to participate in this education
benefit program. The individual contributions are matched on a $2 for
$1 basis by the government. The benefits can be used to pursue a
degree, certificate, correspondence, apprenticeship/OJT training
programs and vocational flight training programs
Benefit entitlement to the participating veteran is one to 36
months, depending on the number of monthly contributions. The veteran
has 10 years from his/her release from active duty to use VEAP
benefits. If the entitlement is not used after the 10-year period, the
portion remaining in the fund is automatically refunded to the veteran.
We strongly support the continuation of the VEAP program and at the
highest rate possible.
Survivors and Dependents Educational Assistance
This is another valuable program that has shown a level of success
for veterans' families and should therefore be continued. It provides
education and training opportunities and benefits to eligible
dependents of veterans for up to 45 months. The benefits may be used
for degree course work and certificate programs, apprenticeship, and
OJT.
We urge the Subcommittee to endorse continued funding of this
program at the higher rates. Our veterans' families would greatly
appreciate your understanding and support.
CONCLUSION
In sum, Madame Chairwoman, the American GI Forum considers the
continuation of the VA and DOL programs before the Subcommittee to be a
reflection of your strong support for our veterans and their families.
Taken as a whole, they go a long way toward honoring the commitment our
nation made to our men and women who have served honorably in the
military.
Again, I thank you for allowing the AGIF an opportunity to address
you today on the review of these important programs.
Prepared Statement of Hon. Charles S. Ciccolella, Assistant Secretary,
Veterans' Employment and Training Service, U.S. Department of Labor
Chairwoman Herseth Sandlin, Ranking Member Boozman, Members of the
Committee:
I am pleased to appear before you today to discuss certain programs
that have expired that involve our agency. Your invitation letter lists
several programs you would like to review. Of the eight programs
listed, we will restrict our comments to the Incarcerated Veterans
Transition Program (IVTP) and the ``Department of Labor (DOL) Veterans'
Employment and Training Program (VETS) Claim Referral Program to Office
of Special Counsel'' and defer to the Department of Veterans Affairs
(VA) on the other programs listed.
Incarcerated Veterans Transition Program
IVTP was originally mandated as a demonstration project using funds
appropriated for the Homeless Veterans Reintegration Program (HVRP).
The Homeless Veterans Comprehensive Assistance Act (P.L. 107-95)
amended Title 38 to revise, improve and consolidate provisions of law
providing benefits and services to homeless veterans. Section 2023 of
Title 38 mandated a demonstration program of referral and counseling
for veterans who are transitioning from certain institutions and at
risk of becoming homeless. Authority for IVTP expired September 30,
2007.
IVTP targeted veterans who were preparing to transition out of
incarceration into employment in their communities. DOL competitively
awarded seven (7) ITVP demonstration grants to provide employment and
training services at the federal, state, and local levels. During the
demonstration project, 4,094 incarcerated veterans were assessed by
grantees, Disabled Veterans' Outreach Program (DVOP) specialists, and
Local Veterans' Employment Representatives (LVERs). Of those assessed,
2,191 veterans were enrolled into IVTP and received customized
employment and training services as well as VA benefits. Over half
(54%) of IVTP participants successfully entered employment earning an
average of $10.00 an hour, at an average cost per placement of $4,500.
This compares very favorably to the annual cost of incarceration of
approximately $22,000 per person.
The IVTP demonstration project has shown positive results in
assisting veterans to successfully transition from incarceration back
into their communities. The program has been successful in reconnecting
veterans to available health care benefits, reuniting them with family
members, and better preparing them to avoid recidivism. The VA's
Incarcerated Veterans Outreach Specialists have coordinated with IVTP
grantees to assist veterans in obtaining other financial benefits and
in securing transitional and permanent housing after their release.
Many of the lessons learned from the demonstration project will
continue to benefit incarcerated veterans. For example, a number of our
DVOPs and LVERs received specialized training in dealing with the
incarcerated veteran population and they continue to develop working
relationships with prison personnel that aid incarcerated veterans in
transitioning to the civilian workforce.
VETS worked closely with VA, the Department of Justice (DOJ), and
DOJ's Federal Bureau of Prisons on this effort. VETS is working with VA
on VA's final report on the demonstration project, which is expected to
be forwarded to Congress in April 2008.
Demonstration Project with the Office of Special Counsel (OSC)
In 2004, Congress passed the Veterans Benefits Improvement Act
(VBIA). Section 214 of that Act required the Secretary of Labor and the
OSC to carry out a multi-year demonstration project under which about
half of all Uniformed Services Employment and Reemployment Rights Act
(USERRA) claims made by federal government employees are referred to
OSC for investigation, resolution and enforcement. The demonstration
project was to conclude at the end of September 2007, but was extended
by Continuing Resolutions through December 31, 2007, when it expired.
Since the inception of the demonstration program on February 8,
2005, through its conclusion on December 31, 2007, VETS received 4,198
USERRA complaints. Of those, 693 (16.5%) were federal claims that were
subject to the demonstration project. VETS transferred 312 of those
federal claims to OSC under the demonstration project, including 14
which were transferred because VETS concluded that they might involve a
prohibited personnel practice.
VETS worked closely with OSC throughout the project to improve our
investigators' ability to identify potential ``mixed cases,'' which are
USERRA cases that may also include related prohibited personnel
practices under the federal civil service laws. VETS also spurred
closer ties by convening monthly meetings in which DOL and OSC
officials discuss and resolve USERRA issues.
The Government Accountability Office's (GAO) Report (GAO-07-907,
July 2007) evaluating the demonstration project recommended that VETS
institute improved procedures to ensure claimants are notified of their
right to have their case referred to OSC, if a federal case, or to DOJ,
if a nonfederal case, and to implement an internal review mechanism for
all unresolved claims. VETS has fully implemented those recommendations
and made other programmatic improvements through the updated USERRA
Operations Manual that went into effect on February 1, 2008. In
addition, GAO identified areas in our data reporting procedures that
have now been addressed.
All USERRA Claims Received by VETS 2/8/05 to 12/31/07
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Currently, DOL has 115 trained USERRA investigators and six USERRA
Senior Investigators who are directly involved in investigating USERRA
complaints. Almost all are veterans themselves. They are located where
veterans need them most--in all 50 states, the District of Columbia,
and Puerto Rico. In addition to investigating complaints, these
specialists conduct outreach and provide technical assistance to
employers, service members, veterans, and veterans' organizations on
employment and reemployment issues at the national, state and local
levels, including to service members as they are mobilized and
demobilized. In addition, VETS investigators can call upon a nationwide
network of DOL attorneys who are experienced USERRA practitioners, to
quickly resolve any legal issues that may arise during an
investigation.
VETS is proud of its record with USERRA since its enactment. For
example, over the past 11 fiscal years, 91% of federal USERRA cases
were resolved by VETS without need for referral to the OSC.
Furthermore, 84% of ``meritorious'' federal USERRA cases and 85% of
``meritorious'' non-federal USERRA cases were resolved by VETS (claims
granted or settled) reached resolution within 90 days. We also have an
aggressive outreach program to educate service members and employers on
their rights and responsibilities under the law. Since September 11,
2001, VETS has provided USERRA assistance to over 512,000 service
members, employers and others.
VETS remains committed to continuous improvement of our USERRA
program. As a result of that commitment, we have made a number of
investments to our USERRA program, and more are planned. An investment
in VETS' USERRA program is an investment in protecting the employment
rights of all service members and veterans covered under USERRA,
regardless of whether their employer is the federal government, a state
or local government, or a private entity.
In sum, the Department of Labor is better positioned than ever to
promptly and effectively respond to service members' USERRA issues
nationwide. We continue to work closely with the Department of
Defense's Employer Support for the Guard and Reserve (ESGR), DOJ, and
OSC to assist service members in resolving their USERRA issues.
Although OSC no longer receives USERRA complaints for initial
investigation, the Department of Labor and OSC will continue to
collaborate on USERRA cases we refer to OSC that contain related
prohibited personnel practices, as well as on unresolved cases we refer
for possible representation before the MSPB.
We believe that the demonstration project was useful and both
agencies benefited from it. However, the demonstration program has
served its purpose, and we do not believe it should be reauthorized.
Prepared Statement of Hon. Scott J. Bloch, Special Counsel,
U.S. Office of Special Counsel
Executive Summary
Not all employers understand their obligations to their employees
who, through active duty military service, meet their own obligations
to our nation. Some servicemembers, mostly members of the National
Guard and Reserve who return from active duty, are turned away by their
civilian employers upon their return. Some, who also serve their
country as federal civilian employees, return from active duty only to
find that the government that sent them to war is unwilling to welcome
them back to their jobs.
The Uniformed Services Employment and Reemployment Rights Act 1994
(USERRA) strengthened the enforcement mechanism for federal employees
by giving the Merit Systems Protection Board (MSPB) explicit
jurisdiction over USERRA violations by federal executive agencies.
Under USERRA, a person claiming a violation by any employer may
make a complaint to the Department of Labor's Veterans' Employment and
Training Service (DOL-VETS) which must investigate and attempt to
resolve the matter. If DOL-VETS cannot resolve a complaint involving a
federal executive agency, the individual may appeal to the MSPB, or
request a referral to the U.S. Office of Special Counsel (OSC) for
possible representation before the MSPB and, if necessary, the U.S.
Court of Appeals for the Federal Circuit.
In 2004 Congress mandated a demonstration project whereby OSC would
receive roughly half of federal USERRA claims directly from claimants.
By combining both the investigative and prosecutorial functions in one
agency, Congress hoped to determine whether OSC could provide better
service to federal employees filing USERRA claims.
OSC obtained corrective action for service members in more than one
in four of the claims filed with us and took less than 120 days on
average to resolve cases. OSC achieved this high rate of corrective
action through its thorough investigations, expert analysis of the law,
ability to educate federal employers about the requirements of USERRA,
and a credible threat of litigation before the MSPB. We have the
ability to get quick and effective relief, while providing a single
place of contact with no confusion for all service members who work for
the federal government.
The demonstration project expired on December 31, 2007. OSC lost
the authority to accept directly USERRA claims made by federally-
employed servicemembers. Our role in USERRA enforcement continues; if
DOL-VETS is unable to resolve a claim, a claimant may request that the
matter be referred to OSC. We may then represent the claimant before
the MSPB.
Granting OSC exclusive jurisdiction over the federal sector USERRA
cases would ensure that federal employee claimants would benefit from
having a single agency resolve their claim. For this reason, federal
sector USERRA investigation and enforcement is a natural ``fit'' for
OSC. We don't know when they will start returning home in greater
numbers, boosting demand for USERRA enforcement. We believe that
adequate information has been developed to support a decision by
Congress to assign the task of investigating and enforcing USERRA
claims by federal employees to OSC.
INTRODUCTION
Chairwoman Herseth Sandlin, Ranking Member Boozman, and members of
the committee: good morning, and thank you for the opportunity to
testify today on important matters of concern to our servicemembers,
their families, and ultimately our national security.
My name is Scott J. Bloch and I am Special Counsel of the United
States and head of the U.S. Office of Special Counsel (OSC), an
independent investigative and prosecutorial agency.
I appreciate the opportunity to appear before you today to provide
my perspectives on the enforcement of the Uniformed Services Employment
and Reemployment Rights Act, or USERRA. While the protections provided
under this statute have not expired, there has been a significant
change recently in how it is enforced for federal employees who are
also members of the National Guard and Reserve.
Members of the U.S. military serve our nation through their
readiness for combat. Members of the U.S. military are graduates of one
of the world's largest training organizations, with highly specialized
knowledge in areas such as engineering, healthcare and information
technology.
As veterans returning to civilian life or continuing to serve as
members of the National Guard and Reserve, they can be superb employees
because of the skills they have acquired as members of the military.
Moreover, their military experience builds judgment, dedication,
resourcefulness, and leadership--personal qualities that should be
valued by employers.
Unfortunately, not all employers understand their obligations to
their employees who, through active duty military service, meet their
own obligations to our nation. Some servicemembers, mostly members of
the National Guard and Reserve who return from active duty in Iraq and
Afghanistan combat zones and other assignments, are turned away by
their civilian employers or not afforded their full rights and benefits
upon their return.
It is difficult to imagine an employer welcoming back a returning
service member with words to the effect, ``Welcome back--you're
fired!'' But it happens.
Some members of the National Guard and Reserve, who also serve
their country as federal civilian employees, return from active duty
only to find that the government that sent them to war is unwilling to
welcome them back to their jobs. Or, they may reinstate them, but with
less pay, status, or benefits to which they are entitled.
Civilian employees of the federal government appear to represent
about 25 percent of the National Guard and Reserve. The USERRA law
specifies that the federal government is supposed to be a ``model''
employer, yet the very government that sends them forth into combat
might deny them their livelihood when they come marching home.
PROTECTING VETERANS' JOBS
The jobs of returning veterans have been protected since 1940, when
the Veterans' Reemployment Rights (VRR) law was enacted. The VRR law
served our nation reasonably well for more than half a century. Over
the years, however, numerous piecemeal amendments and sometimes
conflicting judicial constructions made the law confusing and
cumbersome. There were also some loopholes in the VRR enforcement
mechanism, especially as it applied to the federal government as a
civilian employer.
Better protections were needed, and in 1994, Congress enacted and
President Clinton signed into law the Uniformed Services Employment and
Reemployment Rights Act. USERRA strengthened the enforcement mechanism
for federal employees by giving the Merit Systems Protection Board
(MSPB) explicit jurisdiction to adjudicate allegations of USERRA
violations by federal executive agencies as employers.
Under USERRA, a person claiming a violation by any employer
(federal, state, local, or private sector) is permitted to make a
complaint to the Department of Labor's Veterans' Employment and
Training Service (DOL-VETS) which must investigate and attempt to
resolve the matter.
If DOL-VETS cannot resolve a complaint involving a private, state,
or local employer, the individual may file a private lawsuit or request
a referral to the Attorney General for possible representation in
federal district court.
If the employer is a federal executive agency, the individual may
appeal to the MSPB, or request a referral to OSC for possible
representation before the MSPB and, if necessary, the U.S. Court of
Appeals for the Federal Circuit.
USERRA thus expanded OSC's role as protector of the federal merit
system and federal workplace rights by giving OSC prosecutorial
authority over federal-sector USERRA claims. However, it also
established a bifurcated process in which DOL-VETS first investigates
and attempts to resolve such claims, followed by possible OSC
prosecution before the MSPB when there is no resolution by DOL-VETS.
IMPROVING PROTECTION FOR FEDERAL EMPLOYEES
Recognizing inefficiencies inherent in this process, as well as
OSC's unique expertise in investigating and prosecuting federal
employment claims, Congress included in the Veterans Benefits
Improvement Act of 2004 (VBIA), a demonstration project whereby OSC
would receive roughly half of federal USERRA claims from the beginning
(i.e., when they are filed and prior to investigation).\1\
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\1\ Under the demonstration project, OSC had exclusive
investigative jurisdiction over federal-sector USERRA claims where: 1)
the claimant had a Social Security Number ending in an odd digit, or 2)
the claimant alleged a Prohibited Personnel Practice (PPP) as well as a
USERRA violation (regardless of Social Security Number). DOL-VETS
retained investigative jurisdiction over all other federal-sector
USERRA claims.
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This demonstration project eliminated (for some claims) the often
cumbersome, time-consuming, bifurcated process whereby federal USERRA
claims bounce around different federal agencies before being resolved
by allowing OSC to apply its extensive experience investigating other
federal personnel laws to USERRA. By combining both the investigative
and prosecutorial functions in one agency, Congress hoped to determine
whether OSC could provide better service to federal employees filing
USERRA claims.
The results of the demonstration project speak for themselves: OSC
obtained corrective action for service members in more than 25 percent
of the USERRA claims filed with us and took less than 120 days on
average to resolve cases (which includes prosecution as well as
investigative time). Twenty-five percent is a very high corrective
action rate when you consider that the rate of positive findings and
corrective action for governmental investigative agencies is usually
well under ten percent. OSC achieved this high rate of corrective
action through its thorough investigations, expert analysis of the law,
ability to educate federal employers about the requirements of USERRA,
and a credible threat of litigation before the MSPB.
In addition to obtaining corrective action for the individual
claimant, in our role as protector of the federal merit system, OSC
seeks ``systemic'' corrective action to prevent future violations by an
agency. For example, we have assisted agencies in modifying their leave
and promotion policies to comply with USERRA, provided USERRA training
to agency managers and HR specialists, and required agencies to post
USERRA information on their websites and in common areas.
Our centralized and straight-line process has ensured that the
USERRA claims we receive are resolved efficiently, thoroughly, and,
most important, correctly under the law. The numerous corrective
actions we obtained for returning servicemembers include back pay,
promotions, restored benefits and seniority, time off and systemic
changes that prevent future USERRA violations where they work.
Congress tied the outcome of the USERRA demonstration project to an
evaluation by the Government Accountability Office (GAO). OSC
participated in the evaluations conducted by the GAO, but we were
disappointed that their draft report did not meet the April 1, 2007
deadline mandated by Congress. Instead, the final report was published
only two weeks before the congressional August recess. This left
Congress with almost no opportunity to act on USERRA before the
demonstration project was to conclude on September 30, 2007.
Moreover, the GAO report did not address the central question that
the demonstration project was intended to answer: are federal sector
USERRA claimants better served when they are permitted to make their
complaints directly to OSC, for both investigation and litigation,
bypassing the bifurcated process? We submit that the answer is an
emphatic ``yes.''
The demonstration project was extended by Congress by language
included in the FY2008 Continuing Resolution until December 31, when
OSC lost the authority to accept directly USERRA claims made by
federally-employed servicemembers. Our role in USERRA enforcement
continues; if DOL-VETS is unable to resolve a claim, the claimant may
request that the matter be referred to OSC, and we may then represent
the claimant before the MSPB.
OSC: READY TO ENFORCE USERRA FOR FEDERAL EMPLOYEES
We of the U.S. Office of Special Counsel are privileged to be
engaged in the enforcement of USERRA. Both as Special Counsel, and as a
father of a Marine, I am proud of the work we are doing to protect the
employment rights of those who give of themselves for our national
security.
OSC is uniquely suited to assist members of the National Guard and
Reserve who, upon their return from active duty, even from combat and
with combat-related injuries, are turned away by their federal
employers, or not afforded the full protections or benefits to which
they are entitled. Because the mission of OSC is to protect the federal
merit system, our specialized USERRA unit is staffed with attorneys and
investigators who are experts in federal personnel law and have years
of experience investigating, analyzing, and resolving allegations of
violations of federal employment rights.
OSC is the only federal investigative agency that can provide a
true single point of contact for federal employees making claims under
USERRA. Even as exclusive investigative jurisdiction has returned to
DOL-VETS, USERRA cases involving Prohibited Personnel Practices still
have to be passed to OSC.
We are proud of our achievements enforcing USERRA. We filed the
first-ever prosecutions by OSC in the law's history, obtaining
corrective action in several cases that had been delayed for years or
considered non-winnable. For example, in that first ever prosecution,
we obtained more back pay than originally requested by the claimant,
her attorneys fees, and interest on those amounts. The case of an Army
Corps of Engineers employee, who was not reemployed after serving in
the Air Force, remained unresolved until OSC received the case. We
prosecuted before the MSPB and obtained full corrective action for the
service member, including $85,000 in back pay, reemployment in his
former position, and full restoration of benefits. And, when an injured
Iraq war veteran returned from duty only to be sent home by his federal
employer because he could no long perform his former job, we convinced
the agency to find him a suitable job consistent with his physical
limitations, along with back pay.
That same year, I authorized two other USERRA prosecutions. Once
again, we obtained full corrective action for both servicemembers. They
testified before the House Veterans' Affairs Committee in June 2004
about the difficulties confronting a service member who files a USERRA
claim. I also testified that day--coincidentally same day we filed the
first ever OSC prosecution under USERRA. It was not that there were not
meritorious claims before--there just had not been the commitment to
send a message to the federal government that USERRA violations would
not be tolerated.
I also set up the first unit at OSC dedicated to USERRA led by an
experienced litigator and national USERRA expert. I made it a priority
of my administration at OSC to make a difference in the enforcement of
USERRA along with other laws that OSC enforces.
We worked closely with the House Veterans' Affairs Committee to
improve conditions for service members who had encountered long delays,
sometimes of three years or more, at the Department of Labor. And when
(or if) the service member was informed of the right to have OSC
consider the claim for prosecution, OSC would invariably have to
reinvestigate the matter to unearth the real facts.
The VBIA demonstration project has been a significant boon to
service members who were lucky enough to have a Social Security number
that ended in an odd number. We have the ability to get quick and
effective relief, while providing a single place of contact with no
confusion for all service members who work for the federal government.
We are committed to getting as much relief as the law allows for
our brave service members, and doing so as quickly as possible. These
patriots have given their all in the service of this great nation. They
should never be hung out to dry by a long, drawn-out, confusing
process. OSC is passionate about obtaining relief for all who come to
us, and no less for the soldiers of our country who also serve in the
federal government.
Granting OSC exclusive jurisdiction over the federal sector USERRA
cases would ensure that federal employee claimants would benefit from
having a single agency resolve their claim. For this reason, federal
sector USERRA investigation and enforcement is a natural ``fit'' for
OSC. Moreover, it would remove the burden from the Department of
Labor's Veterans' Employment and Training Service to navigate federal
personnel law, freeing them to focus on providing their best service to
USERRA claimants from the private sector and those in state and local
governments.
Thus, the benefit to service members would be doubly positive--for
federal service members who would benefit from OSC's specialized
experience, and for those private sector service members who would
benefit from greater attention to their claims at DOL-VETS.
THE COMING USERRA ``SURGE''
Today, America is in the middle of the largest sustained military
deployment in 30 years. That deployment is not limited to the
approximately 200,000 servicemembers in Iraq and Afghanistan at this
moment. In recent years, the number of members of the National Guard
and Reserve mobilized at one time peaked at more than 212,000. As of
the end of January, the Department of Defense reported that 95,324
members of the National Guard and Reserve had been mobilized and were
on active duty. It is when these servicemembers end their active duty
that they may find they are no longer welcome to return to their
civilian jobs and are eligible to file a claim under USERRA.
Right now, with returning war vets a comparative trickle, USERRA
claims are in the hundreds. What will happen if and when that trickle
turns into a flood? Will we see a ``spike'' in the number of claims
filed by returning servicemembers who have been turned away from their
employers? Will the government demonstrate its support for our troops
by being fully ready to provide prompt and effective action on these
claims?
We don't know when they will start returning home in greater
numbers, boosting demand for USERRA enforcement. We believe that
adequate information has been developed to support a decision by
Congress to assign the task of investigating and enforcing USERRA
claims by federal employees to OSC. We are poised to assume this
responsibility and to do our part in making their transition back to
civilian life as smooth as possible.
Thank you for your attention and I look forward to your questions.
Prepared Statement of Keith Pedigo, Associate Deputy Under Secretary
for
Policy and Program Management, Veterans Benefits Administration,
U.S. Department of Veterans Affairs
Madam Chairwoman and members of the Subcommittee, I appreciate the
opportunity to appear before you today to discuss expiring VA programs.
Traditional and Hybrid ARMs
Under the provisions of 38 U.S.C. Sec. 3707, VA was authorized to
conduct a demonstration project to guarantee traditional adjustable
rate mortgages (ARMs) during fiscal years 1993 through 1995. Congress
did not extend this authority when it expired.
The Veterans Benefits Improvement Act of 2004 (Public Law 108-454)
reinstated VA's authority to guarantee traditional adjustable rate
mortgages through fiscal year 2008 and also authorized VA to conduct a
demonstration project to guarantee hybrid adjustable rate mortgages
during fiscal years 2004 through 2008 under the provisions of 38 U.S.C.
Sec. 3707 and 38 U.S.C. Sec. 3707A, respectively.
Traditional ARMs are mortgages in which interest rate adjustments
may occur on an annual basis. VA-guaranteed ARMs limit the annual
interest rate adjustments to a maximum increase or decrease of 1
percentage point. Additionally, interest rate increases for VA ARMs are
limited to a maximum of 5 percentage points over the life of the loan.
Hybrid ARMs are mortgages having an interest rate that is fixed for
an initial period of more than one year and adjusts, usually annually,
thereafter. The most popular non-VA hybrid ARMs are those with the
initial interest rate set for 3 years, 5 years, 7 years, or 10 years,
and the potential for annual adjustments thereafter. These loan
products are referred to in the mortgage industry as 3/1, 5/1, 7/1, and
10/1 ARMs, respectively. After a hybrid ARM's initial fixed rate period
ends, the mortgage is subject to interest rate adjustments, typically
on an annual basis. Adjustments are indexed to various indices and,
generally speaking, there are no `life-of-loan' limits on interest rate
increases.
In contrast, for VA-guaranteed hybrid ARMs, for which the initial
contract interest rate remains fixed for less than five years,
adjustments are limited to a maximum increase or decrease of one
percentage point annually, and the `life-of-loan' interest rate
increase is limited to five percentage points. For VA hybrid ARMs for
which the initial contract interest rate remains fixed for five years
or more, annual adjustments are limited to two percentage points and
the `life-of-loan' interest rate increase is limited to six percentage
points. All VA adjustable rate mortgage products are underwritten with
the same stringency as VA fixed-rate loans, and therefore, are not
subprime products.
VA's authority to offer veterans the options of acquiring VA-
guaranteed ARMs and hybrid ARMs expires on September 30, 2008. If
extended, we estimate that this authority would cost $3 million in FY
2009 and $14 million over ten years. At this time, we do not object to
making the provisions of 38 U.S.C. Sec. Sec. 3707 and 3707A permanent
provided the Congress identifies offsets for the increased direct
spending.
On-the-Job Training and Apprenticeship
Individuals eligible for educational assistance programs
administered by VA may use their benefits in approved on-the-job (OJT)
or apprenticeship training programs. Under the Montgomery GI Bill--
Active Duty (MGIB-AD), Montgomery GI Bill--Selected Reserve (MGIB-SR),
Reserve Educational Assistance Program (REAP) and Post-Vietnam Era
Veterans' Educational Assistance Program (VEAP), the monthly
educational assistance allowance for such training is calculated as a
percentage of the full-time monthly institutional benefit rate and paid
monthly in arrears based on the training completed. Education
assistance allowances under those programs are paid at the rate of 75
percent of the full-time rate for the first six months of training, 55
percent during the next six months, and 35 percent for the remaining
months of the program. A training assistance allowance under the
Survivors and Dependents' Educational Assistance (DEA) program is
payable for full-time pursuit of OJT/Apprenticeship training as
provided in 38 U.S.C. Sec. 3687. That section sets forth declining
rates of such allowance for the first, second, and third 6 months, and
for the fourth and any following 6 months of the training program,
rather than as a percentage of the full-time institutional rate.
Public Law 108-454 provided for a temporary ten percent increase in
the amount of benefits payable for pursuit of OJT and apprenticeship
programs. This increase in benefits was payable for the period October
1, 2005, to December 31, 2007. As of January 1, 2008, payments for OJT
and apprenticeship programs reverted to their previous levels. Between
October 1, 2005, and December 31, 2007, an individual receiving OJT/
Apprenticeship benefits through the MIGB-AD in his or her first six
months of training received $935.85 per month. After December 31, 2007,
that individual receives $825.75 per month.
For fiscal year 2007, VA paid benefits for OJT/apprenticeship
training to approximately 17,700 individuals through their respective
education benefit program. A higher monthly training assistance
allowance supplement can provide an incentive for individuals to accept
trainee positions they might not otherwise consider. The Department of
Labor (DOL) states that jobs generally requiring OJT training will
account for half of all jobs by 2016 (DOL Report, Employment Outlook
2006-2016, November 2007). Prior to the sunset date of the provisions
in PL 108-454, VA proposed legislation that would extend the temporary
increase in the rates of payment to individuals pursuing apprenticeship
and on-the-job training programs. We recommend reinstatement of the
benefit rate increase and support making the increase permanent.
We defer to the Department of Defense regarding OJT and
apprenticeship rates under the MGIB-SR, as it is a program administered
by that Department under Title 10, United States Code. While REAP is
also administered under Title 10, its rates are tied to the MGIB-AD
rate. Therefore, a rate increase or decrease to the MGIB-AD rate will
have the same corresponding effect on rates payable under REAP.
Incarcerated Veterans Transition Program (IVTP)
The ``Homeless Veterans Comprehensive Assistance Act of 2001''
(Public Law 107-95) required VA and DOL to provide a demonstration
project of referral and counseling services to veterans who were
institutionalized. This demonstration program was pilot in seven areas
and was funded by DOL's Homeless Veterans' Reintegration Program. Both
VA and DOL required grantees to demonstrate effective counseling and
referral to employment, including follow-up for incarcerated veterans.
The Incarcerated Veterans Transition Program (IVTP) is a demonstration
program focused on pre-release and community-based employment services
delivered by non-profit community agencies to veterans being released
from Federal or State prisons and jails. IVTP employment specialists
also referred veterans to other needed services, including VA medical,
psychiatric and social services, and veterans financial benefits. A
pilot observational evaluation of IVTP used community agency, VA
services use, and U.S. Department of Justice rap sheet data collected
on a convenience sample of 783 incarcerated veterans.
As a result of the IVTP, veterans who had been incarcerated were
more likely to be employed after release and were less likely to be re-
arrested in the year following release. Regression analyses adjusting
for criminal justice factors indicated that both employment and health
services were negatively related to re-arrest, supporting an important
objective of IVTP. These encouraging preliminary results should be
tested in any expansion of the pilot initiative, incorporating lessons
learned from the pilot evaluation process and other outcome research on
employment and criminal recidivism.
Madam Chairwoman, this concludes my testimony. I greatly appreciate
being here today and look forward to answering your questions.
Statement of Vivianne Cisneros Wersel, Member,
Government Relations Committee, Gold Star Wives of America, Inc.
``With malice toward none; with charity for all; with firmness
in the right, as God gives us to see right, let us strive to
finish the work we are in; to bind up the Nation's wounds, to
care for him who has borne the battle, his widow and his
orphan.''
. . . President Abraham Lincoln, Second Inaugural Address,
March 4, 1865
Madam Chairwoman and members of the Subcommittee on Economic
Opportunity of the House Committee on Veterans' Affairs, thank you for
the opportunity to submit my written testimony on behalf of Gold Star
Wives of America.
My name is Vivianne Wersel, and I am the surviving spouse of
Lieutenant Colonel Rich Wersel, Jr., United States Marine Corps.
My husband died suddenly on February 4, 2005, one week after he
returned from his second tour of duty in Iraq. The day he died began as
a seemingly routine day, but it was the day that my life changed
dramatically. At this point in time my life was divided into two
separate pieces--``before'' and ``after''. Before that day I was
focused with great intent in a certain direction, but that day and for
many days thereafter that I was numb and frozen.
Through the fog of grief I could see only one thing clearly--our
children. Long term goals quickly melted away. In addition to
processing my own feelings of profound grief, I knew that somehow I had
to fulfill my husband's role of keeping the family financially secure.
College for our children loomed on the horizon, and college tuition for
our two children rested solely on my shoulders. At that time Richard,
our son, was 14 and Katie, our daughter, was 12. There were many days
that I wanted to stay home, but quitting my job was not an option as I
was now the breadwinner. It was important to maintain job security, and
the requirements of my profession as an audiologist were changing. I
realized that I needed to pursue further education in my field of
endeavor.
This was the time to use my Dependents Educational Assistance
(Chapter 35) benefits from the Department of Veterans Affairs. To
pursue a Doctorate of Audiology I had to use a distance learning
program because there were no universities in my area which offered the
program I needed, and I had to be enrolled in this distance learning
program by December 2006.
Today I am no closer to obtaining this benefit than I was a year
ago. I am testifying today because of the difficulties I had using this
benefit. Either some universities do not have the staff to manage the
required paperwork or VA paperwork has been sent to the wrong location.
I received my Certificate of Eligibility dated January 24, 2007,
and I submitted my paperwork as instructed by the VA to the university
at that time. It has been a year since I started my doctoral program,
and I have spent hours on the phone trying to find out why I am not
receiving these educational benefits in addition to my duties as the
sole parent of two active teenagers, my studying and my job as an
audiologist.
Finally on June 12, 2007, I was told by the university that my
program was not a VA approved program. Instead of taking no for an
answer, I wrote more letters to the university, educating them on my VA
benefits, ensuring that they were aware of my status, and why I was
returning to school. This time I honed in on the application process.
Was it too difficult? Could I help them? In January 2008 the university
finally replied that while the application for educational benefits was
rejected because it was not a VA approved program, they would complete
the application for benefits and submit it to the VA. Through a series
of many phone calls, I recently learned that my application is still
not in the VA system; my file is in the Atlanta office, and it should
be in the Buffalo office because of the location of the university. The
university's residential program has three VA certifiers, and if my
file had been transferred to Buffalo in the beginning that office would
have been aware of the VA certifier on the university campus who could
have assisted.
I have lost confidence in a program that should have worked
synergistically among the VA, the educational institution and the
survivor. As of today I have received no payment, and the only
information in the VA educational system concerning me is my statement
of eligibility.
Another educational issue which concerns surviving spouses is that
as long as the surviving spouse is on active duty serving their country
he or she is not allowed to use their survivors' educational benefits.
Active duty service members who are also surviving spouses are barred
from the survivor educational benefit until they leave active duty. If
an active duty service member who is also a surviving spouse has the
Montgomery GI Bill, this earned and paid for benefit will be offset by
their Chapter 35 benefit. Their deceased spouse paid for the Chapter 35
benefits with their life, and the active duty survivor paid for the
benefits of the Montgomery GI Bill. If an active duty service member
who is also a surviving spouse exhausted his or her benefits under the
Montgomery GI Bill prior to the death of his or her active duty spouse,
would this offset apply and leave them with no Chapter 35 benefits?
The President's proposed budget would allow a service member to
transfer his or her GI Bill benefits to a spouse. Under the current
rules the active duty member who is also a surviving spouse would have
to wait until discharged or retired to use this benefit. If the
surviving spouse chooses to stay in the military service until
retirement this could mean a wait of 19 or more years to use these
benefits. Will an active duty service member who is also a surviving
spouse be allowed to retain this benefit or will he or she lose this
benefit which was paid for with their spouse's life and dedication to
their country? Would allowing the small number of surviving spouses in
this dual situation to use both benefits make a significant financial
impact on this country's budget?
In addition, if the active duty service member who is also
surviving spouse chooses to leave the service so he or she can use the
Chapter 35 benefits, this contributes to the retention problems of the
Armed Forces.
Statement of Richard F. Weidman, Executive Director for Policy and
Government Affairs, Vietnam Veterans of America
Madame Chairwoman, Ranking Member Boozman and distinguished Members
of the Subcommittee, thank you for giving Vietnam Veterans of America
(VVA) the opportunity to offer our brief comments in this statement for
the record on a number of expiring authorities, and whether those
authorities should be renewed.
Incarcerated Veterans Training Programs
This is a small but effective program that deserves not only to be
renewed but better funded and expanded. The problem of veterans
incarcerated is a longtime problem that is rarely spoken of but has
been a concern of VVA since our inception 30 years ago. VVA has a
number of chapters inside prisons, and many of our chapters have
programs of regular visitation of veterans who are incarcerated. We
have worked for many years to get programs in place that assist with
helping veterans who are incarcerated overcome problems while they are
still in prison, primarily neuro-psychiatric wounds and the need to
acquire marketable skills in the legitimate economy so they can get a
job quickly when they are released.
While VVA chapters and state councils have such programs from
Louisiana to Connecticut to Ohio to Washington state, perhaps the most
extensive work has been done in New York. Most of this work is low key,
and done without fanfare or publicity. More than ten years ago we
effected a tripartite agreement between VA, VVA New York State Council,
and the New York State Department of Correctional Services to establish
the ``Veterans Rehabilitation Training'' (VRT) program at 17
facilities. This agreement called for training at the Correctional
Officers Academy in the special problems of veterans, particularly
combat veterans. It resulted in tele-medicine counseling and other
medical services being available to honorably discharged veterans in
state prisons, establishment of pre-release planning programs, and in
general preparation to reconstruct the lives of these veterans on a
positive track after their release. A study of recidivism done in the
mid-nineties showed a recidivism rate for those who did not complete
the VRT program to be more than 70% while those who did complete the
VRT Program had a recidivism rate of less than 30% 24 months after
release. The point is that such programs, when pursued quietly by
dedicated staff and volunteer advocates work to help these veterans go
on to lead constructive and productive lives.
There are two programs for diversion to avoid incarceration in the
first place by means of the newly established ``veterans court'' in
Buffalo, N.Y., and an intensive training program of all law enforcement
personnel in Onondaga County (Syracuse), N.Y. that have been started in
the last few months. While it is too early to tell how effective these
programs will be in avoiding incarceration of these veterans in the
first place, efforts like this have great promise for reducing this
problem for the young combat veterans returning home today. Both of
these programs were initiated by Vietnam combat veterans who are
members of VVA and include judges, retired and still active law
enforcement officers, and are done in cooperation with VISN 2 of the
Veterans Health Administration of the VA.
Higher Rates of Compensation
VVA favors re-establishing higher rates of compensation for the
Survivor & Dependents Educational Assistance program that is more in
line with the high cost of even public higher education today. The
primary reason for non-completion in this program (and the Montgomery
GI Bill, we might add) is that the rates do not adequately cover the
costs incurred in being able to finish and get a degree that will lead
to higher earnings in the long run. When it is a tough choice of
economic survival in the short run of the family or completing
education then education loses. We owe it to those who have died or
been permanently and totally disabled as a result of service to country
in the military to take proper care of their families.
Similarly, re-establishing the higher rates of compensation for the
Apprenticeship and On-The-Job Training will make it possible for
veterans to survive economically while they complete these programs
that will lead to much better and more stable long term employment,
therefore affecting a pay off on the earlier investment that these
veterans have earned. It is both the right thing to do, and it is the
smart thing to do in regard to both the health growth of the American
economy and in regard to higher future tax receipts by the Federal
government.
Pilot Program for the Special Counsel & Veterans Preference Complaints
VVA generally favor extending this program, but cautions that there
is no effective enforcement of veterans' preference laws in federal
employment in our view. The Department of Labor, Veterans Employment &
Training Service (VETS) has failed miserably in meeting their
responsibilities pursuant to the Veterans Employment Opportunities Act
1998. Since the preliminary investigation the referral action is
supposed to be performed by VETS, the system breaks down before the
complaint ever reaches the Special counsel. Once the few complaints
that have gotten that far is received by Special Counsel the results
have not exactly been encouraging, but there appears to be more
competence and expertise at that level than at the VETS. Frankly we
need a much more effective redress mechanism that does not currently
exist for veteran preference eligible persons who have had their rights
abrogated. Further, the VEOA law needs to be changed so that any
violation of veterans preference law ``SHALL'' be considered a
prohibited personnel practice (the law currently reads ``MAY''), and
managers and supervisors and others who hold responsible positions in
regard to hiring need to be held strictly accountable for not according
these veterans' preference eligible persons with the rights they have
earned by virtue of military service.
ARMS Demonstration Program
While VVA does not oppose the requested extension of this program,
we urge great caution to both individual veterans and to the VA in
regard to the need to avoid veterans getting into a position whereby
they cannot re-pay loans that are ``adjusted'' upward quickly to the
point where veterans cannot meet their payments and therefore lose
their homes. It is our understanding that many at VA and some veterans
are happy with the way this program has operated thus far, but in the
credit market as it exists today everyone should proceed cautiously and
conservatively.
Thank you for the opportunity to offer these views here today. I
would be happy to answer any written questions you may have, and to
work with staff to take any action you deem necessary on these topics.