[Senate Hearing 110-766]
[From the U.S. Government Printing Office]


                                                        S. Hrg. 110-766
 
PROTECTING THE EMPLOYMENT RIGHTS OF THOSE WHO PROTECT THE UNITED STATES

=======================================================================

                                HEARING

                                 OF THE

                    COMMITTEE ON HEALTH, EDUCATION,
                          LABOR, AND PENSIONS

                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                                   ON

 EXAMINING WAYS TO PROTECT THE EMPLOYMENT RIGHTS OF THOSE WHO PROTECT 
                           THE UNITED STATES

                               __________

                            NOVEMBER 8, 2007

                               __________

 Printed for the use of the Committee on Health, Education, Labor, and 
                                Pensions


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          COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS

               EDWARD M. KENNEDY, Massachusetts, Chairman
CHRISTOPHER J. DODD, Connecticut     MICHAEL B. ENZI, Wyoming,
TOM HARKIN, Iowa                     JUDD GREGG, New Hampshire
BARBARA A. MIKULSKI, Maryland        LAMAR ALEXANDER, Tennessee
JEFF BINGAMAN, New Mexico            RICHARD BURR, North Carolina
PATTY MURRAY, Washington             JOHNNY ISAKSON, Georgia
JACK REED, Rhode Island              LISA MURKOWSKI, Alaska
HILLARY RODHAM CLINTON, New York     ORRIN G. HATCH, Utah
BARACK OBAMA, Illinois               PAT ROBERTS, Kansas
BERNARD SANDERS (I), Vermont         WAYNE ALLARD, Colorado
SHERROD BROWN, Ohio                  TOM COBURN, M.D., Oklahoma
           J. Michael Myers, Staff Director and Chief Counsel
           Katherine Brunett McGuire, Minority Staff Director

                                  (ii)

  
?

                            C O N T E N T S

                              ----------                              

                               STATEMENTS

                       THURSDAY, NOVEMBER 8, 2007

                                                                   Page
Kennedy, Hon. Edward M., Chairman, Committee on Health, 
  Education, Labor, and Pensions, opening statement..............     1
    Prepared statement...........................................     3
Isakson, Hon. Johnny, a U.S. Senator from the State of Georgia, 
  statement......................................................     5
    Prepared statement...........................................    17
Brown, Hon. Sherrod, a U.S. Senator from the State of Ohio, 
  statement......................................................    19
Allard, Hon. Wayne, a U.S. Senator from the State of Colorado, 
  statement......................................................    20
Ciccolella, Charles S., Assistant Secretary for the Veterans' 
  Employment and Training Service, Department of Labor, 
  Washington, DC.................................................    21
    Prepared statement...........................................    24
Sumner, L. Gordon, Ph.D., Executive Director, National Committee 
  for Employer Support of the Guard and Reserve, Arlington, VA...    28
    Prepared statement...........................................    28
Bloch, Scott, Special Counsel, U.S. Office of Special Counsel, 
  Washington, DC.................................................    30
    Prepared statement...........................................    32
Farrell, Brenda, Director of Military and Civilian Personnel 
  Issues in the Defense Capabilities and Management Team, 
  Government Accountability Office, Washington, DC...............    35
    Prepared statement...........................................    37
Reed, Hon. Jack, a U.S. Senator from the State of Rhode Island, 
  statement......................................................    49
Murkowski, Hon. Lisa, a U.S. Senator from the State of Alaska, 
  statement......................................................    50
Duckworth, Major Ladda Tammy, Director, Illinois Department of 
  Veterans' Affairs, Springfield, IL.............................    54
    Prepared statement...........................................    56
McCarthy, Lieutenant General Dennis M., National Executive 
  Director, Reserve Officers Association, Washington, DC.........    58
    Prepared statement...........................................    59
Duarte, Lieutenant Colonel Joseph Steve, U.S. Marine Corps, 
  Centennial, CO.................................................    63
    Prepared statement...........................................    66
Halbrook, Richard, Executive Vice President, Dollar Thrifty 
  Automotive Group, Inc., Tulsa, OK..............................    71
    Prepared statement...........................................    73

                          ADDITIONAL MATERIAL

Statements, articles, publications, letters, etc.:
    Enzi, Hon. Michael B., a U.S. Senator from the State of 
      Wyoming, prepared statement................................    77
    Murray, Hon. Patty, a U.S. Senator from the State of 
      Washington, prepared statement.............................    79
    Letter from Charles S. Ciccolella, U.S. Department of Labor, 
      Washington, DC.............................................    81

                                 (iii)
  
    Response to Questions of Senator Kennedy by:
        Charles S. Ciccolella....................................    81
        Dennis M. McCarthy.......................................    89
    Response to a Question of Senator Enzi by Charles S. 
      Ciccolella.................................................    86
    Letter from Dennis M. McCarthy, Reserve Officers Association, 
      Washington, DC.............................................    89
    Response to Questions of Senator Murray by:
        Charles S. Ciccolella....................................    86
        Dennis M. McCarthy.......................................    92



  

PROTECTING THE EMPLOYMENT RIGHTS OF THOSE WHO PROTECT THE UNITED STATES

                              ----------                              


                       THURSDAY, NOVEMBER 8, 2007

                                       U.S. Senate,
       Committee on Health, Education, Labor, and Pensions,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 10:28 a.m. in 
Room SD-430, Dirksen Senate Office Building, Hon. Edward M. 
Kennedy, chairman of the committee, presiding.
    Present: Senator Kennedy, Reed, Brown, Isakson, Murkowski, 
and Allard.

                  Opening Statement of Senator Kennedy

    The Chairman. This Sunday the Nation will celebrate 
Veterans' Day. On that solemn day, we honor the generation of 
soldiers who fought for our country in all our Nation's wars. 
We mourn for those who have lost their lives on the battlefield 
and we express our immense gratitude, particularly to the 
members of our Armed Forces who have served so bravely in 
recent years in Iraq and Afghanistan, both those who have 
returned home and those still in harm's way.
    Since September 11th, 1.5 million of our service men and 
women have been deployed in Iraq and in Afghanistan. And more 
than 630,000 members of the National Guard and Reserves have 
been mobilized. Our forces now have been in Iraq for 4\1/2\ 
years, longer than our military was engaged in World War II. 
Our Government has asked all of these brave men and women to 
make immense sacrifices for our country. They've been sent far 
from their homes for extended tours of duty. We've asked them 
to leave their families and their jobs. We've asked them to 
risk their lives and more than 3,800 have made the ultimate 
sacrifice.
    In fact, this year more soldiers have died in Iraq than any 
other year of the war. They've put our national security first 
and the Nation owes them an immense debt of gratitude.
    When these heroes return home, we owe them more than a kind 
word or prayers. We must do whatever we can to help them make 
the transition back to civilian life. Many veterans need to 
return quickly to their former jobs to support their families. 
Our Federal laws are meant to speed that transition by 
requiring companies to quickly reemploy our Nation's veterans 
and ensure they don't lose out at work because they answered 
the call of duty.
    However, Department of Defense figures that have been 
released today, show that tens of thousands of veterans 
returning home have faced the harsh reality that their service 
to our country has cost them the salary they deserve, the 
health care, and other benefits, and even their jobs. Among the 
members of the Reserves and National Guard, nearly 11,000 were 
denied prompt reemployment. More than 22,000 lost seniority and 
rightful pay. Nearly 20,000 saw their pensions cut. More than 
15,000 did not receive the training they needed to resume their 
former jobs. Nearly 11,000 did not get their health insurance 
back.
    Even more disturbing, veterans who seek help face a Walter 
Reed-like nightmare, a system that is crumbling and failing to 
serve them when they need it most. They have to negotiate a 
maze of bureaucracy, they could be shuffled among multiple 
agencies only to find, after all the bureaucratic run-around, 
they still may have to pay a lawyer to file their case in 
court.
    With a system like this, it's no wonder that 77 percent of 
all veterans say they don't even bother to seek help when they 
face reemployment problems. A third say they have no idea where 
to turn and don't believe that their problems would be fixed. 
Our laws require the Federal Government to defend veterans' 
rights, but those who seek help must wait for months, even 
years, just to get a simple answer about whether the Government 
will take their case.
    The Department of Labor, where the vast majority of claims 
are referred, has taken years to resolve complaints. One case 
has even been open for 7 years--7 years. Federal employees 
seeking help waited an average of 8 months before their cases 
were referred to yet another agency, the Office of Special 
Counsel for help. Nearly half of all veterans who sought help 
from the Department of Labor last year said that they were 
dissatisfied with the assistance that they received.
    Of the nearly 1,400 complaints, the Department received in 
2006, it referred only 24 cases, less than 2 percent, to other 
agencies for prosecution that year. As a result, the Attorney 
General filed only four Federal cases on behalf of veterans in 
2006. The Office of Special Counsel litigated only a single 
case referred by the Department of Labor.
    In a situation where tens of thousands of our veterans are 
having reemployment problems, these numbers are appalling. Even 
worse, we've done little to help disabled veterans to meet the 
unique challenges they face. More than 28,000 soldiers have 
been wounded in action since 9/11, thousands of them seriously 
enough to need help to return to their former civilian jobs. 
Incredibly, the Federal agencies tell us they don't even know 
what the scope of the problem is because they don't follow 
disability cases in a uniform manner.
    This gross abdication of responsibility to our veterans is 
unacceptable. These brave men and women have risked their lives 
to protect us, yet we are failing to protect them.
    Today, we'll seek answers from the agencies about why more 
isn't being done. We'll also hear from the Government 
Accountability Office, whose staff has produced several 
comprehensive reports about these problems, including two 
reports earlier this year. We look forward to hearing further 
about the in-depth work that they have done.
    We're honored to have with us several veterans today. Tammy 
Duckworth, Director of the Illinois Department of Veterans' 
Affairs, an Iraq War veteran. Tammy, it's nice to see you 
again. Thank you. Thank you.
    Retired Lieutenant Colonel Steve Duarte, Lieutenant General 
Dennis McCarthy, Executive Director of the Reserve Officers 
Association.
    I know there are a number of men and women in the audience 
here who have served our country. We commend them for their 
strong commitment to seek fairness for veterans and service 
members. We know we can never truly repay our veterans for 
their immense sacrifices. They have fought hard overseas for 
our country. It's up to us to fight hard for them when they 
return to the heroes' welcome that they so justly deserve.
    [The prepared statement of Senator Kennedy follows:]

                 Prepared Statement of Senator Kennedy

    This Sunday, the Nation will celebrate Veterans' Day. On 
that solemn day we honor the generations of soldiers who have 
fought for our country in all the Nation's wars. We mourn for 
those who have lost their lives on the battlefield. And we 
express our immense gratitude, particularly to the members of 
our armed forces who have served so bravely in recent years in 
Iraq and Afghanistan--both those who have returned home and 
those still in harm's way.
    Since September 11th, 1\1/2\ million of our servicemen and 
women have been deployed to Iraq or Afghanistan, and more than 
630,000 members of the National Guard and Reserves have been 
mobilized. Our forces have now been in Iraq for four and one-
half years--longer than our military was engaged in World War 
II.
    Our government has asked all of these brave men and women 
to make immense sacrifices for our country. They've been sent 
far from their homes for extended tours of duty. We've asked 
them to leave their families and their jobs. We've asked them 
to risk their lives, and more than 3,800 of them have made the 
ultimate sacrifice. In fact, this year, more soldiers have died 
in Iraq than in any other year of the war. They've put our 
national security first, and the Nation owes them an immense 
debt of gratitude. When these heroes return home, we owe them 
more than kind words or prayers. We must do whatever we can to 
help them make the transition back to civilian life.
    Many veterans need to return quickly to their former jobs, 
to support their families. Our Federal laws are meant to speed 
that transition, by requiring companies to quickly reemploy our 
Nation's veterans and ensure they don't lose out at work 
because they answered the call of duty.
    However, Department of Defense figures being released today 
show that tens of thousands of veterans returning home have 
faced the harsh reality that their service to our country has 
cost them the salary they deserve, their health care, and other 
benefits, and even their jobs. Among members of the Reserves 
and National Guard:
     Nearly 21,000 were denied prompt reemployment.
     More than 22,000 lost seniority and rightful pay.
     Nearly 20,000 saw their pensions cut.
     More than 15,000 did not receive the training they 
needed to resume their former jobs.
     Nearly 21,000 did not get their health insurance 
back.
    Even more disturbing, veterans who seek help face a Walter 
Reed-like nightmare--a system that is crumbling and failing to 
serve them when they need it most. They have to negotiate a 
maze of bureaucracy. They can be shuffled among multiple 
agencies--only to find after all the bureaucratic run-around 
that they still may have to pay a lawyer to file their case in 
court.
    With a system like this, it's no wonder that 77 percent of 
all veterans say they don't even bother to seek help when they 
face reemployment problems. A third say they have no idea where 
to turn, or don't believe that their problems would be fixed.
    Our laws require the Federal Government to defend veterans' 
rights, but those who seek help must wait for months, even 
years, just to get a simple answer about whether the government 
will take their case to court.
    The Department of Labor, where the vast majority of claims 
are referred, has taken years to resolve complaints. One case 
has even been open for 7 years. Federal employees seeking help 
waited an average of 8 months before their cases were referred 
to yet another agency--the Office of Special Counsel--for help. 
Nearly half of all veterans who sought help from the Department 
of Labor last year said that they were dissatisfied with the 
assistance they received.
    Of the nearly 1,400 complaints the Department received in 
2006, it referred only 24 cases--less than 2 percent--to other 
agencies for prosecution that year. As a result, the Attorney 
General filed only 4 Federal cases on behalf of veterans in 
2006, and the Office of Special Counsel litigated only a single 
case referred by the Department of Labor.
    In a situation where tens of thousands of our veterans are 
having reemployment problems, these numbers are appalling.
    Even worse, we've done little to help disabled veterans to 
meet the unique challenges they face. More than 28,000 soldiers 
have been wounded in action since 9/11, thousands of them 
seriously enough to need help to return to their former 
civilian jobs. Incredibly, the Federal agencies tell us they 
don't even know what the scope of the problem is--because they 
don't follow disability cases in a uniform manner.
    This gross abdication of responsibility to our veterans is 
unacceptable. These brave men and women have risked their lives 
to protect us--yet we are failing to protect them.
    Today we will seek answers from the agencies about why more 
isn't being done. We also will hear from the Government 
Accountability Office, whose staff has produced several 
comprehensive reports about these problems, including two 
reports earlier this year. I look forward to hearing further 
about the in-depth work they have done.
    We're also honored to have with us several veterans: Tammy 
Duckworth, Director of the Illinois Department of Veterans' 
Affairs and an Iraq War veteran; Retired Lieutenant Colonel 
Steve Duarte; and Lieutenant General Dennis M. McCarthy, 
Executive Director of the Reserve Officers Association.
    I know there are a number of men and women in the audience 
here who have served our country. We commend them for their 
service, and for their strong commitment to seek fairness for 
all veterans and servicemembers.
    We know we can never truly repay our veterans for their 
immense sacrifices. They have fought hard overseas for our 
country, and it is up to us to fight just as hard for them when 
they return home to the heroes' welcome they so justly deserve.
    The Chairman. Senator Isakson.

                      Statement of Senator Isakson

    Senator Isakson. Well, thank you very much, Senator 
Kennedy, for calling this hearing. And this gives me the 
opportunity to publicly apologize to Tammy for bumping into her 
when I came in the building today. And I want to also tell her 
that I had the pleasure of meeting her at Walter Reed when she 
was doing rehab there, and I thank you very much for your 
service to the country and what you're doing for veterans 
today.
    While Veterans' Day is Monday, today is also the 25th 
Anniversary of the Vietnam Memorial, and I was pleased to join 
Senator Kennedy this morning in reading some of the 58,000 
names of those brave Americans who died in Vietnam, including 
my very best friend in life, Jackson Elliott Cox, who was my 
roommate, and fraternity brother in school.
    So this is a special day, it's a special day to look at our 
veterans, and it's a special day to have a hearing of this 
nature. So, thank you, Senator Kennedy, for doing that.
    Since the tragic terrorist attacks of September 11, 2001, 
our Nation has depended on our Armed Services more than ever. 
It goes without saying that all of us, Republicans and 
Democrats, liberals and conservatives, are appreciative of 
their efforts and those of their families.
    I am proud to have served in the Georgia Air National 
Guard, hired members of the Guard and the Reserve when I ran my 
company in Georgia, and I have voted to send our men and women 
into harm's way. I take nothing more seriously than the 
sacrifice and the courage of these brave young men and women.
    Today, we address the employment of these brave young men 
and women upon their return from action. More than half of the 
men and women serving in all volunteer Armed Forces are members 
of the Guard and the Reserve. Accordingly, employers play a 
vital role in enabling their employees, who are members of the 
Guard and Reserve, to serve their country and return to their 
job in a smooth transition. It's imperative that employers be 
as flexible as possible, as veterans attempt the transition 
back to civilian life.
    Federal law lays out a bare minimum that employers must do 
to meet the needs of our Guard and Reserve. Employers must not 
discriminate in hiring or other benefits of employment against 
persons, because of that person's obligation to perform 
services in uniform.
    And I would make a note at this point in my remarks, 
unbeknownst to me and not planned because of this hearing, but 
at lunch--I'll be having lunch with some of the executives of 
Home Depot that testified last year before this very committee. 
They have been recognized at least twice, as a national leader 
in the employment of veterans. And Frank Lake, their CEO, and 
the many people at Home Depot, who are headquartered in 
Georgia, can say their No. 1 responsibility and what they do 
over and above what is required, the minimum that's required by 
law, is just astounding. I think they're an absolute role model 
for the rest of the country.
    And, Mr. Chairman, to that end, I have a number of 
statements, six precisely, that I've received from private 
employers documenting such efforts that I would like to be 
entered into the record.
    The Chairman. They will be so included.
    [The information previously referred to follows:]

     Prepared Statement of Janet Fiore, CEO, The Sierra Group, Inc.

    Please accept my testimony for the record regarding the major role 
that prompt and effective vocational rehabilitation services play in 
accommodating, retraining and placing injured veterans back into their 
prior civilian jobs or into new careers.

                               BACKGROUND

    The high rate of unemployment for Americans with Disabilities is 
being compounded by the fact that more than 22,000 men and women who 
are returning from the current conflicts, who were previously employed, 
are now physically disabled, and in need of a totally different way to 
earn a living. Or, they have sustained injuries and disabilities that 
make it difficult for them to return to their prior civilian jobs 
unless both they and their employers receive disability-related 
accommodation and training services.
    The men and women who have recently become disabled while serving 
our country are adding to existing U.S. Census statistics which show 
that 10 percent of all Americans have a disability. Physical injuries 
and post traumatic stress disorder for veterans is also causing an 
increase in the existing statistics that show 27 million Americans have 
a severe disability that affects their ability to see, hear, walk or 
perform other functions necessary for the workplace. Assistive 
technology is enabling thousands of these individuals to work or return 
to work in their previous jobs. However, the unemployment rate for 
people with disabilities remains more than 11 times the national 
average. Seventeen years following the passage of the Americans with 
Disabilities Act, which was enacted to prohibit discrimination solely 
on the basis of disability in employment, public services, and public 
accommodations, the unemployment rate for people with disabilities 
remains at 70-80 percent.
    Assisting people with disabilities in finding and maintaining 
competitive employment is important to society. Assistive technology, 
training and other accommodations are proven avenues to help businesses 
in both hiring and return to work practices. However, access to 
information and services that support individuals and business that 
need them is fragmented and therefore, underutilized. For instance, 
veterans with disabilities can gain work-related training and 
accommodation services via a number of separate agencies including, but 
not limited to, the Veteran Administration's Vocational Rehabilitation 
and Employment (VR&E); the Department of Labor's Veterans' Employment 
and Training Services (VETS); the Department of Education's State-
administered public program of Vocational Rehabilitation (VR); and 
others. While each agency provides meaningful and beneficial services 
to both individuals and to employers, the lack of ability to easily 
navigate the process is actually a disincentive that contributes to the 
low employment numbers for citizens with disabilities. Veterans with 
disabilities do not always know which employment-related services are 
best to meet their individual needs and desires as they attempt to re-
integrate to employment. Similarly, businesses faced with a system that 
is cumbersome to navigate are not proactively recruiting people with 
disabilities.
    In order for more people with disabilities to be put to use in the 
workplace, American businesses seem to need a catalyst that will show 
them how to benefit from hiring and rehiring people with disabilities. 
One catalyst that would begin to change the dire unemployment picture 
for these persons with disabilities is the Disability Preference 
Program for Tax Collection Contracts. Once enacted into law, the 
initiative will serve as a pilot program to demonstrate to business the 
benefits of bringing these men and women into the workforce, in large 
numbers. The Disability Preference Program for Tax Collection Contracts 
is very well-suited to be this catalyst for several reasons, including:

     It will provide well-paying jobs with health benefits and 
401(k) benefits;
     It will provide jobs that require only a high school 
education or GED, which is of particular importance to returning 
veterans who have become disabled; and
     It will provide jobs that are well-suited to 
accommodations, including use of assistive technology.

    In my 15 years of experience providing services for job seeking 
Americans with disabilities, and to employers who hire them, it is 
often difficult to find work that is so well-suited for those with 
severe disabilities. The jobs that would be created by the Disability 
Preference Program for Tax Collection Contracts involve work from a 
desk, computer and telephone, all of which can be readily adapted for 
people with the most severe disabilities including mobility 
impairments, mild traumatic brain injury, severe vision loss and other 
impairments.
    In addition, finding jobs with sustainable wages and benefits for 
individuals with a high school diploma or GED is difficult. Of 
individuals identified as both unemployed and having a severe 
disability, nearly 50 percent of them have an education that has not 
culminated in a high school diploma. In fact, nearly 40 percent of this 
total is educated at or below the 8th grade level. The Journal of 
Rehabilitation (July/August/September 2002, volume 68, Number 9) 
addresses the need for accommodations during GED testing for adults 
with disabilities because research demonstrates that people with 
disabilities ages 15 to 20 fail to complete high school at twice the 
rate as those without disabilities (41 percent vs. 21 percent). 
Therefore, those who go on to successfully gain their GED have even 
less opportunities than their non-disabled counterparts.
    The Disability Preference Program for Tax Collection Contracts 
could be a catalyst that would succeed in putting thousands of severely 
disabled men and women to work in meaningful, well-paying careers. The 
success of this program will serve as an example that can allow 
additional governmental contracts to businesses in all industries to 
encourage the employment of people with disabilities, at good wages and 
with benefits.
    This ``business first'' approach provides a reason to build upon 
the numbers of employees with disabilities a business includes in its 
workforce by offering an incentive during the contracting phase, in 
order to stimulate the hiring of a large number of qualified men and 
women with disabilities into our shrinking American workforce. The need 
for this program is further evidenced by the GAO Report in 2002 that 
found low numbers of businesses routinely using the Work Opportunities 
Tax Credit (WOTC), the Disabled Access Tax Credit (DAC) and the 
Architectural Barriers Removal Deduction. This study, which I 
participated in, found that many businesses were unaware of the 
programs. I and others contacted recommended that Congress take steps 
to reach out to business to educate them about existing incentives.
    I have seen first hand how leveraging assistive technology and 
training in a third party debt collection production center gives 
people with disabilities the opportunity to obtain the skills they need 
to be successful tax collectors, and provides them with solid customer 
service skills that will be transferable should they wish to move on to 
another career. Armed with this career experience, those now in the 
ranks of the unemployed will become self sufficient-taxpayers 
themselves, while acquiring valuable employment skills to use in their 
future.
    Regarding the need to create jobs that can accommodate an assistive 
technology user, the National Organization on Disability (NOD) study in 
1998 revealed that 25 percent of all people with disabilities who work 
use assistive technology. This same study also noted that 45 percent of 
those with disabilities who are unemployed stated that they would 
require assistive technology in order to become employed. Therefore, 
the Disability Preference Program for Tax Collection Contracts, as a 
pilot program, is well-suited to allow this large group of people with 
severe disabilities to have a chance to work. It will also serve as a 
means to increase the use of assistive technology in the workforce, 
thereby drawing on the talents of the group of unemployed Americans who 
require this type of accommodation in order to work.
    In the last 15 years, with the improvements in technology, and 
assistive technology, The Sierra Group, Inc., has trained and assisted 
over 5,000 individuals. Sierra has an 80 percent success rate--success 
being defined as 4 years after an individual is provided with assistive 
technology or training for vocational and educational purposes, they 
are still utilizing the services provided. Every day in America, 
thousands of job-seeking people with disabilities are turned away by 
businesses that have not seen the proof that these people can work. 
This travesty in unemployment must be reversed if we are to be a fully 
inclusive society that values diversity in our workforce. American 
businesses obviously need and require both a straightforward incentive 
and a successful pilot program to prompt them to recruit, hire, train, 
and accommodate workers with disabilities.
    Enhanced incentives and coordination of resources are required for 
injured veterans and business in order to protect the employment rights 
of those who became disabled while protecting the United States.
                                 ______
                                 
                 Attachment.--UMC, Inc. Monticello, MN

    UMC, Inc. supplied the pay differential between the employee's 
guard salary and his UMC wages, and continued his 401K contributions.
    UMC took up collections for gift cards and sent care packages to 
Iraq where he was deployed.
    We learned that due to a storm, his family's privacy fence at their 
home was damaged and approximately 20 employees and some of the UMC 
managers volunteered to go to their house and repair their fence, plant 
trees, and build a sandbox for their children.
    Employees took up collection drives while he was away to raise 
money so that his family could purchase him an airline ticket, 
Christmas gifts for the kids, and other items they needed.
    UMC kept in contact with the family at home in case they needed 
anything and his wife kept UMC updated about the employee.
    UMC provided paid transportation and accommodations for the 
employee and his wife to be able to attend the Freedom Awards Ceremony 
in Washington DC. UMC also purchased his Dress Blues Attire.
    Since the employee has returned from Iraq and prior to him 
returning to work, UMC is paying him 100 percent of his wages.
    The employee has not returned to work yet but will be starting back 
in 2 weeks. Our HR department hosted a roundtable meeting to discuss 
Vets returning to work and Jim Sullivan from the ESGR spoke to an HR 
group about re-acclimation.
 Prepared Statement of Jeff Horner, Chief Development Officer, Global 
   Business Development and Vice President, Government Relations for 
                  United Collection Bureau, Inc. (UCB)

    It is an honor to be invited to submit my statement for the Record.
    My name is Jeff Horner. I am Chief Development Officer of Global 
Business Development and Vice President for Government Relations for 
United Collection Bureau, Inc. (UCB). UCB is an Ohio Corporation 
providing debt collection and accounts receivable management services 
since 1959. We are licensed in all 50 States that require collection 
agency licensing. In addition to our home office in Toledo, OH, we have 
eight other locations throughout Ohio, Michigan, Florida and, most 
recently, Arizona. We presently have about 1,200 employees and generate 
over $40 million in annual revenue.
    UCB is recognized as a top performing service provider in the 
Financial Services market for credit card and bank product collections, 
known as the most demanding and competitive market segments in the 
industry. The company is a contact award holder for the Government 
Service Administration (GSA) for debt collection services (SIN 520-4) 
and we hold multiple State tax collection contract awards. Currently, 
the company's key initiative is the procurement of contracts with the 
Federal Government.
    Under our service contract with the State of Ohio, UCB has been 
recognized as the top-performing vendor each year of the competitive 
contract for the collection of personal income tax accounts. With over 
$25 million collected, UCB has played a critical role in the 
overwhelming level of success the two Ohio Attorney Generals have 
experienced while in office, with record recoveries each term. In 
recognition of exceptional performance with the personal income tax 
accounts, UCB has also been awarded, under competitive bid, contracts 
for the collection of business tax accounts, student loan accounts, and 
State-operated hospital patient accounts.
    It is UCB's belief that value-added services offer significant 
benefits to our clients, debtors, and employees. To this end, UCB has 
developed a Value-Added Initiative for Federal Government collection 
contract opportunities, not available with any other collection company 
in the industry.
    Mr. Chairman, 1 in 10 Americans have a disability. While the 
current unemployment rate in the Nation stands at about 4.7 percent, 
the unemployment rate of PWDs continues to hover at 70-80 percent. The 
high number of returning disabled American veterans from Iraq and 
Afghanistan will only serve to compound this problem.
    We feel that the status quo is unacceptable. Therefore, UCB has 
teamed up with a number of relationship partners for the purpose of 
developing a comprehensive program to identify, recruit, screen, hire, 
train, and employ persons with disabilities (PWDs), including returning 
disabled veterans. Our program engages government and non-government 
support agencies, assistive technology products and services, a 
specialized training academy, and company resources to provide these 
employees with full- or part-time collector positions with income 
opportunity well above the national average for level of education and 
experience.
    The entire UCB-PWD program serves as a pipeline to reach out to 
many candidates and identify those that are compatible with the 
functions and responsibilities of the position. UCB has built an 
integrated process using the partners and resources necessary to 
deliver them to the workstation that has been personally equipped for 
them to successfully perform the functions and responsibilities of the 
job. It is our finding that employees who are also persons with 
disabilities make extremely loyal, dependable, and productive 
associates in our organization.
    Senator Ben Nelson of Nebraska has also been working on an 
initiative to further the employment of our returning disabled veterans 
and all PWDs. The goal of the Disability Preference Program is to 
promote the employment of persons with disabilities, including disabled 
veterans, through the utilization and enhancement of the IRS' program. 
As approved by the Senate, Senator Nelson's legislation would give a 
preference in contracting to third-party debt collectors who currently 
employ at least 50 persons with disabilities and agree to hire an 
additional 35 percent of the contract workforce persons with 
disabilities.
    The contracts being executed by the IRS with private-sector debt 
collection companies offer an exceptional opportunity for the Federal 
Government to stimulate creation of well-paying jobs for the disabled. 
Positions at third-party debt collection agencies pay between $25,000 
and $150,000 annually, with most averaging $40,000. These jobs also 
include health and 401(k) benefits. With an initial hire of 750 persons 
with disabilities, the Federal Government could potentially save up to 
$344 million over 10 years in Supplemental Security Income (SSI) and 
Disability Insurance (DI) benefits.
    The Senator first introduced the Disability Preference Program for 
Tax Collection Contracts in 2005. His initiative has passed the Senate 
on three separate occasions. Most recently it was included as part of 
H.R. 2829, the Financial Services and General Government Appropriations 
Act for Fiscal Year 2008, as reported by the Senate.
    Enactment of the Disability Preference Program is necessary since 
in several letters and conversations with the Department of Treasury, 
they have stated that ``under existing GSA Federal Supply Schedule 
(FSS) contracting procedures, (they) cannot set a specific number of 
awards aside for contractors employing significant numbers of persons 
with disabilities.''
    The Treasury Department has also said they need legislation in 
order for ``GSA to amend its socioeconomic criteria in order to give a 
preference to a business that hires large numbers of persons with 
disabilities.'' Currently, the preference is only considered if an 
individual who owns the company is a disabled veteran. This is an 
oversight which needs to be corrected.
    It makes no sense that current law provides an employment 
opportunity for ONE disabled person, while this legislation would 
create opportunities for hundreds, if not thousands of people who are 
unemployed and disabled.
    Unfortunately, there are many in Congress staunchly opposed to the 
IRS program to collect past due income taxes. While the pilot program 
has been quite successful--over $24 million in gross revenue has been 
collected--it remains under attack. In fact, this week the House of 
Representatives is slated to take up Chairman Charlie Rangel's bill, 
H.R. 3996, which contains a provision to repeal the IRS program.
    But Mr. Chairman, I would propose to you that the Disability 
Preference Program is worth supporting even under the assumption that 
the IRS contracting law should be repealed at some future point. A 
closer look at the Disability Preference Program and the repeal of 
current IRS contracting law clearly shows that the two are not mutually 
exclusive. Until such time as a repeal is passed, workers with 
disabilities, including service-disabled veterans, employed by 
contractors are gaining valuable vocational training and work 
experience on-the-job.
    Disabled veterans and other disabled workers would most likely 
retain employment with the contractor through reassignment to another 
project within the company if the IRS contract were to expire or be 
terminated. Private sector collection contractors strive to lower 
attrition and training costs by reassigning exiting staff as projects 
are gained and lost.
    In addition, employees assigned to the IRS contract work at the 
private collection contractor must pass the same level of scrutiny and 
background checks as IRS employees, and undergo IRS-approved project 
training and testing. Therefore, contractor employees will be the best 
available applicants for job opportunities with the IRS when the IRS 
hires internal collectors to do the work before or after repeal.
    Under the Disability Preference Program, disabled workers would 
receive valuable training, certification, and job experience to seek 
gainful employment at private sector or government offices performing 
telephone collection work, and therefore would be much better qualified 
and prepared to continue a career in the collection industry than they 
otherwise would have been if the program was not available.
    Although even for a temporary time period, use of this employment 
initiative would provide a much-needed demonstration to government 
contracting entities that similar contracting requirements should be 
used to provide good job opportunities for disabled veterans and other 
persons with disabilities.
    Mr. Chairman, UCB is committed to finding gainful, meaningful work 
for our returning disabled veterans and for persons with disabilities. 
I hope to work with you and the other members of this committee to 
reduce the inexcusable unemployment rate for the disabled and to honor 
those who have sacrificed so much on our behalf.
    Thank you, Mr. Chairman.
                                 ______
                                 
      Disability Preference Program for Tax Collection Contracts 
                          Legislative History

    109th Congress

    S. 2020: Tax Relief Act of 2005*

    The preference program was included in sections 406 and 503 in the 
bill that was passed by the Senate on November 18, 2005.
---------------------------------------------------------------------------
    * The amended bills--S. 2020, H.R. 4297, H.R. 1591, and H.R. 2829--
cited in this section may be found on the Senate Web site 
www.senate.gov.

---------------------------------------------------------------------------
    H.R. 4297: Tax Relief Act of 2005*

    The preference program was passed by the Senate in section 471 on 
February 2, 2006 but not included in the conference report.

    110th Congress

    H.R. 1591: Emergency Supplemental*

    The preference program was passed by the Senate in Section 570 on 
March 29, 2007.

    H.R. 2829: Financial Services and General Government 
Appropriations*

    The program was included in Section 113 of the bill that was 
reported in the Senate on July 13, 2007, but was never passed.

   Prepared Statement of David L. Miller, President, Con-way Freight-
                                Central

    At Con-way, we are tremendously proud of our employees and 
especially those who are members of the National Guard or Reserves. 
These brave men and women represent unique members of the Con-way 
family and deserve our support and the support of the Nation. 
Currently, we have 28 employees who are deployed and a total of 92 who 
are members of the Guard or Reserves. Tragically, two Con-way 
associates have been killed in Iraq so we understand the impact such 
losses can have on our families and on our business.
    Supporting our employees called to active duty and their families 
is a long tradition at Con-way. We feel it is our duty to them--and to 
the Nation in which we freely live, work and do business. We also want 
to encourage other employers to learn from our rich history of 
commitment and encourage them to adopt similar value systems--ensuring 
our active duty Reservists that they can come home and support their 
families. As a business, we owe these individuals and their families 
nothing less.

     Con-way holds responsibility--not just to our shareholders 
but also to our employee family and the Nation--as a core value.
     Con-way maintains full health benefits and provides 
military differential pay to families when an employee is deployed--far 
above what is required by law.
     The company counsels employees being deployed and their 
families about health benefits and military pay differential programs 
to ensure those left at home have access to information and contacts 
during the deployment period.
     Human Resources representatives check in with the families 
to ensure that they understand the program of pay and benefits.
     Our program has been in place for years without 
alteration, despite increased deployments in recent years.
     Are there steps the government could take that might 
entice more employers to institute programs like ours? Yes. For one, we 
believe it would be helpful to businesses if there were more lead time 
between being called for duty and actual deployment. This would allow 
us more time to make adjustments in our workforce.
     We also recommend looking at tax credits as an incentive 
for more companies to work harder to support their employees in the 
Guard and Reserves.
     We are proud of our practices in supporting the citizen 
soldiers in our Con-way family and we would be happy to share what 
we've learned with any company interested in creating a similar 
program.

    Thank you, members of the Commission.
                                 ______
                                 
                      Attachment 1.--News Articles

        [From the American Forces Press Service, Aug. 28, 2007]

       Indiana Guardsman Cites Freight Firm for Excellent Support

                         (By Gerry J. Gilmore)

    Washington, DC.--Indiana National Guard Command Sgt. Maj. Michael 
S. McAllister is so impressed with the support provided by his 
employer, Con-way Inc., that he recommended that it receive a 
prestigious Defense Department award.
    Con-way Inc. is among 15 businesses and organizations selected to 
receive this year's Secretary of Defense Employer Support Freedom 
Award. McAllister nominated the company for the annual award, which 
honors businesses and organizations that provide exemplary support for 
their employees in the Guard or Reserves.
    McAllister is a coordinator at Con-way Freight's trucking hub in 
Plainfield, Indiana, located near Indianapolis. The Ann Arbor, 
Michigan-based firm is a division of Con-way Inc., a freight 
transportation and global logistics company based in San Mateo, 
California.
    McAllister, 41, cited the company's demonstrated concern and 
support for its employees in the Guard or Reserves.
    ``It wasn't so much all of the benefits. I mean, those are nice, 
because they're above and beyond what the law requires,'' McAllister 
explained.
    Rather, he cited his employers practice of welcoming home employees 
returning from military duty.
    ``We're obviously elated that the company was recognized, but as 
I've made it a point to share with people, we didn't do it for any 
`brownie points' if you will, or awards for us,'' said David L. Miller, 
Con-way Freight's chief operating officer.
    ``We're doing it because we have the means to support our citizen-
soldiers, and it is the right thing to do at the end of the day,'' 
Miller said. ``We only enjoy our freedoms because we have fine young 
men and women that are willing to put it on the line.''
    Con-way Inc. and its subsidiaries provide differential pay to their 
employees in the Guard or Reserves who are called up for active duty. 
The company also provides health benefits for spouses and children who 
remain at home and collects and delivers care packages of books, snacks 
and other items to overseas troops.
    ``We do a wage differential, so that when the guys or gals are 
deployed on active duty, whatever they would have earned here working 
for us, we make up the differential between what they make in the 
military vs. what they would have made here,'' Miller explained.
    Supporting employees in the Guard or Reserves who've been activated 
for duty assists them to ``have their heads in the mission'' so they 
can come home safely, Miller pointed out.
    ``We don't want them having to look over their shoulders, wondering 
if their families are being taken care of when they are over there 
taking care of all of our families,'' he said.
    McAllister recalled being activated to participate in Operation 
Noble Eagle to guard airports and other vital U.S. infrastructure for 2 
years after the September 11, 2001, terror attacks. He recently was 
activated again to help establish a new State training organization 
that will prepare Guard and Reserve troops who've been mobilized for 
overseas duty.
    McAllister reiterated that his civilian employer excels at 
supporting its employees in the Guard or Reserves. ``I don't have to 
worry about the way the company's going to view me when I get back,'' 
the senior noncommissioned officer said, noting his company is proud of 
its employees in the Guard or Reserves.
    The Secretary of Defense Employer Support Freedom Award recognizes 
U.S. employers that rise above the requirements of the Uniformed 
Services Employment and Reemployment Rights Act. The National Committee 
for Employer Support of the Guard and Reserve, a Defense Department 
agency, manages the award process. ESGR assists Guard and Reserve 
members and their employers understand employee eligibility and job 
entitlements, employer obligations, benefits and remedies under this 
act.
    Miller will accept the Freedom Award on behalf of Con-way Inc. 
during a formal ceremony here September 12.
                                 ______
                                 
     Attachment 2.--Editorial--Transport Topics magazine--American 
                         Trucking Associations

 Beyond Ribbons and Care Packages . . . Helping Companies Do What They 
   Can--and Should--to Support Employees Called For Military Service

        (By David L. Miller, President, Con-way Freight-Central)

    It's no secret--when the military deploys members of the National 
Guard or Reserves it makes a dramatic impact on them and everyone 
around them. Families and friends feel the effects . . . and so do 
employers. With a war in progress and National Guard and Reserve 
soldiers now comprising 46 percent of our military, we need to look for 
ways to soften the impact that these absences will have, both on the 
families and the employers of those who are deployed.
    In that sense, we are all partners in our country's national 
defense, and carry the responsibility that entails. As employers, we 
must show accountability to our citizen soldiers and their families--
but also to the customers and shareholders who count on us to provide 
reliable, high-quality service and consistent returns. There has never 
been a better time for responsible employers to come together and 
evaluate how deployments of our employee/soldiers are handled and 
whether there are ways to improve that process for the citizen 
soldiers, customers and other stakeholders.
    To examine these issues, it's important to take stock of what we're 
facing. What does an employer have to do when informed of an employee's 
imminent deployment, and how can the employer help cushion the impact 
for the employee, his or her family, and the business? The first step, 
of course, is finding a replacement to fill in during the absence. 
Depending on the facility's location, that can mean transferring an 
existing employee, training a new one, adding overtime hours for 
existing staff or some combination of the three. The universal theme? 
Time and money, and it takes both. Training or retraining an employee 
often costs thousands of dollars . . . and always takes a significant 
amount of time. Companies with National Guard and Reserves members on 
staff must be prepared to make those expenditures when these employees 
are called for active duty, making a national issue a (very) local one.
    While taking steps to manage the impact of employee deployments on 
the business, which takes a great deal of our attention, there's 
another constituency that deserves just as much: the families of our 
deployed employees.
    Many companies choose to go above and beyond minimum legal 
requirements in providing security to the loved ones of deployed 
soldiers. They continue to cover full- family health benefits and even 
pay the difference between military pay and what the soldier was 
earning as an employee.
    But it's not just about compensation and benefits. Each of us must 
weigh our ethical obligation to provide as much support as we can 
during the trying times of a military separation. Companies can choose 
to communicate with the families early and often to make sure they 
understand all pay and benefits programs offered. It may feel like a 
business risk to offer more than legally required, but it pales in 
comparison to the risks taken by our citizen soldiers every day and to 
the rewards of ensuring that a good, motivated employee returns to your 
organization when their deployment ends. When you look at it that way, 
financial assistance and solid communication are small prices to pay, 
indeed.
    After all, these are important employees in any organization. A 
staff member in the National Guard or Reserves truly knows the meaning 
of leadership, responsibility and professionalism. They tend to bring 
discipline, perseverance and grace under pressure to everything they 
do. We, as employers, are lucky to have them, even if it means having 
to function without them on short notice when necessary.
    Having said that, let's look for ways to improve the deployment-
reemployment activities for all involved. How can we make it easier for 
businesses to do the right thing without unnecessarily facing declining 
revenues or service levels in the process? That brings us back to time 
and money. Most employers would agree that additional lead time between 
notice of deployment and reporting for duty would be enormously helpful 
in planning for employee absences. More time can open up options like 
cross-training and covering for the deployed employee without hiring a 
replacement. The goal is to minimize the operational disruption caused 
by the absence, reducing the financial risk to the organization, and 
providing enough time for the deployed employee's family to adjust and 
adapt. These are common-sense objectives we should work toward.
    Another idea that's often discussed is government tax credits for 
companies employing National Guard and Reserves members. The credits 
could reward businesses going above and beyond what is mandated by law 
in deployment pay and benefits, and also potentially help alleviate the 
expense of temporary labor during a deployment. The No. 1 reason 
soldiers point to when leaving the Guard or Reserves is pressure from 
their employers, and tax credits like these could take the pressure off 
all parties.
    These are just a few of the ideas that could help employers fulfill 
ethical and patriotic duties to those employees who sacrifice so much 
to protect the American quality of life. If the last nearly 6 years 
have taught us anything, it is that we can't take for granted the 
freedoms we enjoy as Americans. It is everyone's job to support those 
willing to sacrifice themselves for our country. That should go beyond 
ribbons and care packages.

Prepared Statement of Dave McNulty, Director of Veterans Employment and 
                   Training for the State of Wyoming

    Wyoming has not had a USERRA case in the past 2 years. The real 
success is talking with every soldier that is being mobilized or de-
mobilized. We cover the USERRA law and what their rights and the rights 
of the employers are. We encourage them to sit down with their employer 
prior to being mobilized and go over the basics of the law. In addition 
to this, I talk with employer groups, both private and governmental, 
National Guard and Reserve Leadership groups and their Family Support 
Center Staff to ensure as many people as possible are aware of the 
USERRA law and its requirements.
    I work very closely with Employers in Support of the Guard and 
Reserve (ESGR), a volunteer group that provides information to military 
personnel and employers throughout the State regarding USERRA. If ESGR 
cannot resolve issues, they refer the case to my office as an official 
complaint. I provide training on USERRA at least annually at the ESGR 
statewide meeting.
    I receive many calls from employers in Wyoming asking what they 
need to do to comply with the law. One employer from Gillette, Wyoming 
called because their employee had been injured in Iraq and was back but 
could not get a release to go back to work. Their concern was they 
could not hire him back until he got a release, but in the meantime, he 
and his family had no income. I contacted the Wyoming Adjutant General 
regarding the problem and the Guardsman was put back on orders the next 
day and remained on orders until he could get a release to work. I 
cannot say enough about Wyoming's employers and service members.

       Prepared Statement of Michael Yackira, President and CEO, 
                        Sierra Pacific Resources

    Dear Chairman and Senators: My name is Michael Yackira and I am 
President and Chief Executive Officer of Sierra Pacific Resources, the 
parent company of Nevada Power Company and Sierra Pacific Power 
Company, the two major electric utilities serving the State of Nevada.
    I am pleased to share with you the details of Sierra Pacific 
Resources' history of, as well as policies in support of our employees 
who have taken on the responsibility of military service. We take great 
pride in the opportunity we have to support both our coworkers and our 
Nation through good company policy. Over the last 5 years, some 27 
Sierra Pacific Resources employees have been called to active duty in 
the military, including the current commanders of the Nevada Army 
National Guard and the Nevada Air National Guard.
    Just a few weeks ago, I had the great pleasure to accept on behalf 
of Sierra Pacific Resources and its employees the 2007 Employer Support 
of the Guard and Reserve Freedom Award. Sierra Pacific Resources was 1 
of just 15 employers in the United States recognized with a Freedom 
Award for exceptional support of its military reserve-component 
employees.
    Our company has also signed a 5-Star Statement of Support, received 
numerous Patriot Awards and the Above and Beyond Award.
    The key policies implemented by our company to support military 
service include full pay during military service, the continuation of 
benefits for employees and family members, as well as training for 
managers on the Uniformed Services Employment and Reemployment Rights 
Act.
    One of our highest goals as a company is to have employees who make 
a significant difference. In order to ask for such a commitment we 
must, as a company, make similar commitments to our employees. Our 
policies regarding military service are clearly the right thing to do, 
and it has full support throughout the company from senior officers, to 
managers to the coworkers who in many cases must pick up the extra work 
to compensate for those workers serving our country.
    In greater detail, here are some key provisions of our military 
service policy:

     Sierra Pacific Resources employees who serve in the U.S. 
Military organizations, annual training or State militia groups may 
take necessary time off to provide military service for the period of 
the military orders. Sierra Pacific Resources complies fully with the 
Uniformed Services Employment and Reemployment Act.
     Sierra Pacific Resources will cover probationary and 
regular, full-time and part-time employees for voluntary and 
involuntary service.
     Employees who report for annual military reservist duty 
will receive his/her normal base pay in addition to the base pay earned 
as a result of such duty, excluding any military subsistence or other 
expense allowances during the training period, up to 30 working days.
     Employees deployed are eligible for 12 months of pay 
differential between the employee's military base earnings and the base 
pay which he/she would have earned as an employee. Employees deployed 
to active military service in excess of 12 months will be evaluated on 
an exception basis for continued eligibility for pay and benefits under 
this policy.
     For the employees Company Retirement Plan, credited 
service will continue to accrue for the duration of leave. 401(k) 
contributions and company-matching contributions will continue at the 
same percentage.
     Employer paid Base Life coverage will continue.
     Supplemental Life Insurance will continue.

    Again, thank you for the opportunity to share our story with all of 
you and our support for the Uniformed Services Employment and 
Reemployment Act. Our commitment to our employees is one we take very 
seriously, and having a comprehensive and fair plan to support our 
military employees is just one example of that commitment.
    It truly is the right thing to do. Thank you for your time.

Prepared Statement of Colonel Frederick H. Booth, Director of Division 
          of State Police, New Hampshire Department of Safety

    The New Hampshire State Police have accomplished much in regard to 
being a supportive and responsible employer for the men and women who 
serve in the Guard and Reserve. There are over 20 members who serve in 
the Reserve components, most of whom have deployed one or more times 
since September 11, 2001.
    Applicants are actively recruited personnel who serve in the Guard 
and Reserve, recognizing that the generally superior employee they gain 
outweighs the occasional inconvenience of them being away for training 
or operational requirements. ALL employees who are citizen-warriors are 
recognized as valued employees.
    Care and comfort packages are provided for all deployed troops. The 
State Police escort all departing and returning mobilized units of all 
components. The remains of EVERY fallen Soldier, and members of all 
components are escorted from whatever point the air transportation 
lands, whether in or out of New Hampshire, entirely through the 
memorial and burial process, frequently by troopers who VOLUNTEER to 
show their support and respect. Troopers provide training in defensive 
driving to help the New Hampshire re-entry and re-union process for 
returning war veterans, assisting them to re-adjust to civilian 
defensive measures.
    Differential pay, continuation of family health benefits, 
continuation of seniority time for up to 2 years of mobilization is 
provided. Applicants receive veteran's preference. In addition, up to 1 
year of military service can be credited toward civilian retirement. 
All benefits are interpreted liberally to provide for maximum benefit 
to the citizen-warrior.
    The entire DOL rules interpretation of USERRA (Uniform Services 
Employment and Reemployment Rights Act) was published in the 
``Trooper'' magazine. The Department prominently displays USERRA/DOL 
posters in the workplace, and encourages all levels of leadership to 
acquaint themselves with its provisions.
    MANY ``Patriot'' awards have been received throughout the Division, 
two ``Above and Beyond'' awards, one ``Seven Seals'' Award, the 
singular ``Pro Patria'' (Latin: ``For the Country'') award last year, 
and received 1 of only 15 ESGR Secretary of Defense ``Freedom Award in 
Washington, DC. Oct 12, 2007. The State Police was one of the first of 
its super agency Department to sign a five-star formal ``Statement of 
Support'' which it prominently displays with many other awards for 
service at its' Headquarters, and Troop Stations around the State.
    The Department of Safety, of which it is a part, has since become 
the first super agencies in New Hampshire to have every Division sign 
as well. The New Hampshire State Police have been recognized before the 
Defense Advisory Board, and Reserve Forces Advisory Board for their 
part in the exemplary New Hampshire first in the Nation ``Re-entry and 
Re-union'' program for returning reservists. Photo displays are mounted 
at all State Police facilities, honoring the troops and the national 
flag is proudly displayed on all marked cruisers.
    The State Police have long entered into a strategic partnership 
with the National Guard in the Drug Interdiction program, and have 
provided facilities, equipment and support for joint training and 
operational missions, which include search and rescue across the 
mountainous State.
    In short, the NH State Police live by, support and honor by word 
and deed, the basic tenants of USERRA, and have gone above and beyond 
in every way, culminating in the recent receipt of the National Freedom 
Award.
                                 ______
                                 
                                          November 8, 2007.

    Dear Committee: Thank you for accepting this written statement to 
be entered into your hearing record on the hearing this morning 
entitled: Protecting the Employment Rights of Those Who Protect the 
United States.
    I am a 51-year-old disabled U.S. Army veteran, the son of WWII Navy 
veteran, brother of an Army veteran and father of an Iraqi veteran who 
is currently scheduled to return to Iraq for military service in June 
2008.
    I also serve as Chaplain (unpaid-volunteer) within a local chapter 
of the Vietnam Veterans of America, for which, I have been a member for 
many years.
    I am a former Federal employee with combined (military and 
civilian) service in excess of over 13 years. I was Honorably 
Discharged from Military and Civilian Services.
    On behalf of myself and my brother and sister veterans, I thank you 
for holding these hearings and I thank you for your service and 
commitment to our Nation.
    I am writing to you to opine that I believe from my own personal 
experience, speaking to others and reviewing some of the case law from 
the MSPB and the U.S. Court of Appeals that the system for re-dress by 
the Federal Government for violations of veterans employment rights at 
the: (1) agency level, (2) U.S. Department of Labor (DOL-VETS), (3) 
U.S. Office of Special Counsel and (4) U.S. Merit Systems Protection 
Board, are unacceptable. My experience and this letter concerns 
employment limited to the Federal sector. While providing some relief 
to our veterans in few cases, in many other cases I believe, these 
processes more provide an inconsistent, unreliable and often 
conflicting system of bureaucracy, which perhaps adds more insult and 
emotional injury than relief for the majority of veterans seeking 
assistance. I say this mainly because I believe the process is such an 
uphill climb and battle for the service person to pursue, that most, 
probably elect to walk away if their veterans preference (VP) 
entitlement is denied under the Veterans Employment and Opportunity Act 
(VEOA, 5 U.S.C. 3330a) or other employment rights under the Uniform 
Services Employment and Reemployment Act (USERRA, 38 U.S.C. 4301 et 
seq.).
    Engaging this process without legal counsel or substantial legal 
training is without a doubt most likely to end up in a loss. That is, 
unless the government decides to support and champion your cause, which 
given the fact of limited staff and resources to do so for these 
purposes, chances are only the very lucky or politically connected or 
represented by legal cases may find relief. This is for all cases, not 
even exclusive to veteran's issues. Veterans, on the other hand, 
usually are either returning from war or looking for employment from 
the private sector, school or the ranks of the unemployed. Numerous 
reports have been written documenting discrimination toward veterans 
and denial of veterans preference and re-employment rights which as the 
committee is well aware of has spirited recent legislation from 
Congress to enact stricter veterans' employment law. Nonetheless, both 
Federal and private sector employers continue to violate veterans' 
employment and re-employment rights. This opinion is not my unique 
observation, but now is found as a matter of fact. Given that a veteran 
is able to get his claim filed and moved forward through labor and or 
the special counsel getting to the MSPB (let alone winning) just to get 
a hearing was problematic, and has just recently been addressed by the 
U.S. Court of Appeals (USCA for the Federal Circuit, 05-3077, 
Kirkendall v. Department of the Army, decided: March 7, 2007). 
According to Circuit Judge Mayer, for the majority; p. 21 ``Until now, 
it has been the board's practice to grant a hearing as a matter of 
administrative grace, or deny one at its convenience.'' Later, in the 
same paragraph, the judge writes ``the board's consistent 
misapplication of the law can neither be used to defend its practice; 
nor to justify what Congress did not intend.'' This case clearly showed 
that veterans were being denied access to the MSPB over 
misinterpretation of law and intent of Congress for filing VEOA claims 
and holding hearings for veterans in USERRA cases.
    I recall when I first expressed my intention to fight what happened 
to me last year with my Federal employer (U.S. Department of Veterans 
Affairs) an investigator in the office of compliance at the U.S. 
Department of Affairs wished me good luck and stated words to the 
effect that OSC (Office of the Special Counsel) only finds merit in 
about 2 percent of the cases filed with them every year. Two percent, 
that is a profound number. That means that 98 percent of government 
employees and applicants for employment cases are unfounded. Wow! There 
must be a huge number of government employees out there that are 
misguided or our government has proven a phenomenal level of success in 
this area of employment law. Perhaps, that formula could be used to 
correct other areas of government inefficiency.
    The truth of the matter is that most Federal employment claims are 
eliminated by the complaint processes through Labor, OSC, MSPB, and 
then what is left goes to the courts. The interesting figures would be 
to find out what percentage of ``pro se'' litigant cases (chances are 
that is where the unemployed veteran, veteran seeking re-employment, 
and veterans returning from war or being separated from the military 
are) are successful? Then find out how many veterans looking at their 
odds of success walk away instead of seeking re-dress from the 
government employer (who is represented by counsel) and their reality 
of limited resources (many having to find employment and income for 
their families, sooner than later) to hire counsel or go it alone and 
make sure he/she is able to learn and apply the statutes accurately and 
in most cases within 60 days. Saying all of that, the veteran has very 
little chance of prevailing.
    Perhaps, the committee could get the statistics of the ratio of 
claims against Federal veteran employers and the punishment or 
sanctions for violating veterans' rights. Counted on how many hands?
    My story, although probably not typical, can show the committee 
that even if a veteran manages to file a complaint properly, the 
government, who is supposed to be helping him/her, can drop the ball at 
various stages of the process, weakening or convoluting the situation 
or issues to make things very complicated or make it easier for the 
veteran just to quit rather than to swim against the tide and made to 
feel unpatriotic to proceed.
    My case shows that even with evidence and reliable proof, the 
outcome of the case (without legal representation) remains up to the 
government whether the veteran will prevail, even if his/her case is 
righteous and the laws all support that conclusion, justice can be 
avoided.
    The bottom line is that without legal representation the veteran is 
assured that a government lawyer will decide: (1) if there is a case, 
and (2) the government administrative law judge (ALJ) will decide 
whether to follow the law or not.
    Reading some of the case laws, it is evident that some ALJ's 
routinely find against pro se veteran litigants and with the volume of 
petitions for review (PFR) that go to the full board and then the many 
cases that go through the appellate process, it is more than evident 
that ALJ's misapply the law routinely and dispose of cases routinely by 
ensuring the veteran will have to appeal their decision. It is an 
entirely new and complex legal process.
    My case, if not true, would sound to the reasonable person as 
incredible or an unbelievable story. I can explain it and I can prove 
it, if there was anyone to take the matter to for action. But without a 
lawyer, it is my word against the lawyers. They win by default!
    I filed a mixed motive case: VEOA/USERRA-Discrimination/PPP-
Whistleblower Claim at the U.S. DOL-VETS. My VEOA claims were 
immediately denied (60-day filing rule) despite the fact the government 
(U.S. Department of Veterans Affairs (VA) failed to provide me with my 
official notification of the action (being appealed) until well beyond 
60 days and even that notice was ``unofficial'' (a faxed copy). 
Supposedly, my Prohibited Personnel Practice (PPP) and USERRA claims 
were forwarded by U.S. Department of Labor, Veterans Employment and 
Training Services (VETS) to the Office of Special Counsel (OSC). OSC 
did a PPP investigation, but failed to discover any prohibited 
personnel practices, despite the Veterans Administration admitting 
``lost consideration'' for passing me over as a veteran (a law 
violation) under title 5 U.S.C. Later, it was discovered that the 
USERRA charge was not processed by OSC and claimant (yours truly) had 
to re-file the USERRA charge six (6) months later. That matter remains 
pending. The VEOA appeals are at the MSPB and have been there since 
April 2007. No discovery, no hearing. I have accused persons at the VA 
of falsifying official records and sought investigation at the highest 
levels at the Department of Veterans Affairs.
    They (VA) have ordered me not to contact any more officials and 
have refused to address the accusations of official misconduct, 
falsifying official records and willfully disregarding governmental law 
that I have raised. All my issues have been neatly placed in the 
compartment of the DOL/OSC/MSPB complaint process system and without a 
lawyer; you are at the total mercy of the system.
    I have contacted my Congressman Jim Saxton, and the congressional 
and Senate Armed Services Committee chairs. Neither houses have 
investigated or mediated investigation of these serious claims by Labor 
or the agency (VA) concerned to formally address violation of personnel 
law that are not covered by the MSPB process. The next steps will 
undoubtedly be the press. Unfortunately, after many years, citizens 
still may not rely on Federal oversight and need to embarrass the 
leadership into accountability.
    It seems that no law is broken until a government lawyer says so, 
regardless of the facts or the truth! My USERRA claim has not been 
decided yet. I filed my claims 8-9 months ago; chances are I will lose 
that case as well without my own lawyer.
    My advice and testimony: the long and the short of it, tell the 
veterans if you want to protect your employment rights, don't expect 
the government's help. They take care of their own and you no longer 
are one of them! Get a good lawyer; you are going to need one!
    I believe from my experience this past year from many government 
employees, being a veteran is meaningless to them, not to be honored, 
not to be respected, but rather persons deserving of loss of their 
employment rights!
    Thank you for your interest in protecting the employment rights of 
those who protect the United States.
    God bless you and God bless America! Don't forget! Hire the Vet!
            Sincerely,
                                    Robert R. Farrell, Sr.,
                                      Chaplain, New Jersey Veteran.

    Senator Isakson. Again, Mr. Chairman, I want to thank you 
very much for calling this hearing. I want to thank all of our 
witnesses for coming. We have no higher priority than looking 
after the best interest of the men and women who serve the best 
interest of the citizens of this country every day.
    [The prepared statement of Senator Isakson follows:]

                 Prepared Statement of Senator Isakson

    Mr. Chairman, thank you for calling this hearing.
    With the approach of Veterans' Day, it is more than 
appropriate that we take time to both honor those who have 
served in our military and those who serve today.
    Since the tragic terrorist attacks of September 11, 2001, 
our Nation has depended on our armed services more than ever in 
waging the global war on terror. It goes without saying that 
all of us, Republicans and Democrats, liberals and 
conservatives, are appreciative of their efforts and those of 
their families.
    I am proud of my service in the Georgia Air National Guard. 
I hired members of the Guard and Reserve as well as war 
veterans during my time as a businessman. And I have voted to 
send them into harm's way to defend this Nation.
    Today, we address the employment of these brave men and 
women upon their return from action.
    More than half of the men and women serving in our all-
volunteer Armed Forces are members of the National Guard and 
Reserve. Accordingly, employers play a vital role in enabling 
their employees who are members of the National Guard and 
Reserve to serve their country. It is also imperative that 
employers be as flexible as possible as veterans attempt the 
transition back to civilian life.
    Federal law lays out the bare minimum that employers must 
do to meet the needs of our Guard and Reserve. Employers must 
not discriminate in hiring or other benefits of employment 
against a person because of that person's obligation to perform 
service in uniform.
    However at hearings I held last Congress, we learned that 
many, if not most, employers go well ``above and beyond'' that 
which is required under Federal law.

     Many employers voluntarily offer ``differential 
wage payments,'' payments that represent wages active duty 
individuals would have received if he or she were performing 
services for the employer.
     Many continue to extend health benefits to their 
deployed employees and members of their families.
     Many employers voluntarily provide a myriad of 
services to the active service member's family including lawn 
care, babysitting, snow removal, and on and on.

    Mr. Chairman, I have a number of statements that I have 
received from private employers documenting such efforts that I 
would ask be entered into the record.
    In the relatively few circumstances whereby the 
relationship between the returning veteran and the employer 
requires some level of mediation, the Labor Department's Office 
of Veterans Employment and Training Service counseling veterans 
and investigates their employment claims.
    I suspect many of these disputes are simply the result of 
misunderstanding or a lack of knowledge, not a conscious effort 
to deprive veterans of their rights. In fact, over 90 percent 
of claims are resolved immediately and amicably without any 
legal action.
    Of course, the employment remediation services provided by 
the VETS Office are only a small part of that agency's mission. 
Their far larger role is in providing employment and re-
employment assistance, training and placement for veterans.
    Moreover, the VETS office constitutes only a tiny fraction 
of the Government's total range of services available to 
veterans. As a Member of the Veterans Committee, I hear 
constantly about the ongoing efforts of the Department of 
Veterans Affairs to improve services to those whom we owe so 
much.
    Again, I thank Senator Kennedy for calling this hearing.
    The Chairman. Thank you very much. I see Sherrod Brown and 
Senator Allard are here. Senator Brown is on the Veterans' 
Affairs Committee. Senator Akaka is the Chairman. We're working 
very closely because this is subject matter that they have done 
a great deal of work on. We have, obviously, dual kinds of 
interests. They have special responsibilities, charges. We have 
the Department of Labor provisions, which we take very 
seriously. If either of those Senators wanted to make a brief 
comment----
    Senator Brown. Thank you, Senator.
    The Chairman [continuing]. We'd welcome it.

                       Statement of Senator Brown

    Senator Brown. Mr. Chairman, thank you and thank you to all 
the witnesses for joining us. Many of you have been in front of 
the Veterans' Committee too, and I appreciate your input and 
your public service and commitment to our country.
    But Uniform Services Employment and Reemployment Rights Act 
of 1994, USERRA, is one of those pieces of legislation that 
should not be necessary. USERRA was written to prevent 
discrimination against service members, as you know, when they 
return home from deployment. Fair treatment should be a given, 
but obviously sometimes it isn't.
    When USERRA was established, no one contemplated the 
military realities that we're seeing today. When passed 13 
years ago, USERRA was designed for the short call-up. No one in 
1994 contemplated multiple deployments, stop-loss deployment 
extensions. And the USERRA, written more than a decade ago, 
obviously is not addressed in today's economic realities.
    Some soldiers returning home find that the job they once 
had is gone, sometimes because the company they once worked for 
no longer exists. The fact that we have increased the demands 
on our soldiers, but employment protections have not been 
redefined to reflect today's reality.
    USERRA has worked for some service members and some 
employers, of course, are doing the right thing. But good 
companies, good local small businesses that want to comply with 
the law are straining to honor their promise to Reservists 
because of the extended and repeated deployments they and their 
communities face. And there are other serious problems. Some 
employers don't know about USERRA and, unfortunately, some 
employers simply don't abide by it.
    With more and more deployments, more and more companies and 
government agencies are affected by the war. USERRA enforcement 
must keep pace. We must do a better job of informing employers 
of their duties and soldiers of their rights. Soldiers need to 
know that they have the law on their side and the Federal 
Government must ensure that USERRA is fully enforced for every 
soldier in every State.
    Perhaps the most appalling fact about the situation we're 
discussing, is that one of the greatest offenders is the 
Federal Government. In a recent report, Stars and Stripes, the 
independent military newspaper, found that ``one in every six 
job discrimination cases last year involving Guardsmen and 
Reservists, centered on problems with a Federal agency.'' How 
can we expect private businesses to respect the law when those 
Federal agencies, when the Federal Government is not--is 
violating it?
    The Federal Government should be leading the way, not 
dragging its feet. We're asking more and more from our service 
members and they continue to answer the call to duty again and 
again and again. Our employers, including the Federal 
Government, must also answer that call.
    Mr. Chairman, thank you for holding this hearing today.
    The Chairman. Senator Allard.

                      Statement of Senator Allard

    Senator Allard. Thank you, Mr. Chairman. I'd also like to 
thank you for an opportunity to discuss issues facing our 
veterans, who have admirably served our country and now seek to 
reintegrate into our Nation's workforce.
    I appreciate the testimony of the witnesses here today and 
I'd like to extend a special welcome to Lieutenant Colonel 
Steve Duarte from Centennial, CO.
    We must never forget those who have served this country 
proudly and defended the freedom we all hold dear. We're here 
today because we have an interest in ensuring our veterans 
receive the greatest care, including the guarantee of 
reemployment once they return to civilian life.
    Our Nation's returning war heroes possess diverse 
abilities, broad range of skills, excellent training, and 
proven character. These are qualities that many employers 
support and are proud to employ.
    In my home State of Colorado, the month of November 2007 
has been designated as the Hire a Veteran First month. To 
observe this month, activities are taking place across the 
State. One such activity includes Mesa Counties first annual 
Hire Vets First Employment Conference. The collaboration 
between the Mesa County Workforce Center of the Colorado 
Department of Labor and Employment and the employers of Mesa 
County, aims to smooth the transition home. This multiple event 
campaign serves as a fine example of the dedication and 
commitment necessary in helping our Nation's war heroes. I 
fully support these efforts and encourage other ventures like 
this to be repeated throughout the country on an annual basis. 
It is vital that we continue to do our part to help veterans 
return as contributing members of society.
    Thank you, Mr. Chairman, for the opportunity to make a few 
remarks.
    The Chairman. Thank you very much.
    We have two panels, very special spokespersons on this 
issue and we're very grateful for their presence. On our first 
panel we have Chick Ciccolella. Do you have relatives in 
Massachusetts? With a name like that, you must have some up our 
way.
    Mr. Ciccolella. I think one of the folks that produced the 
Sopranos, sir.
    [Laughter.]
    The Chairman. We're glad to have you here.
    He is the Assistant Secretary of Veterans' Employment and 
Training Services at the Department of Labor, spent 28 years in 
the Army, 1968 to 1996, served with 101st Airborne Division, 
Vietnam 1969-1970. Before leaving the Army as an Infantry 
Colonel, he was Senior Military Advisor for the Arms Control 
and Disarmament Agency, Department of State.
    Gordon Sumner, Executive Director, National Committee for 
Employer Support of the Guard and Reserves, oversees the 
activities of more than 4,200 volunteers, including more than 
800 volunteer ombudsman, who informally mediate employment 
disputes between service members and their employers. 
Commissioned as a Reserve Officer, Dr. Summer had a successful 
military career. He is a decorated combat veteran Airborne 
Ranger, Master Army Aviator. He graduated from Jacksonville 
State University, Alabama; he received a Ph.D. from Madison 
University, an MBA from Auburn University, and a Masters in 
Education from Boston University.
    Scott Bloch serves as Special Counsel at the U.S. Office of 
Special Counsel. Prior to that, Mr. Bloch served as Deputy 
Director and Counsel to the Task Force for Faith-Based and 
Community Initiative at the U.S. Department of Justice. Mr. 
Bloch earned his Bachelor's and Law Degrees at the University 
of Kansas, where he served as an adjunct professor.
    I saw that Kansas-Nebraska game a week ago Saturday. I 
don't know, did you see that game, Mr. Bloch?
    Mr. Bloch. Yes. It's an unusual event for us to beat 
Nebraska that badly.
    The Chairman. Seventy-six to thirty-nine.
    Since April 2007, Brenda Farrell has served as the Director 
of GAO's Defense Capabilities and Management team, where she's 
responsible for military and civilian personnel issues, 
including related medical readiness. Ms. Farrell and the GAO 
have produced significant insight in their reports, raising 
serious questions about our Government's assistance of service 
members whose rights are violated. Ms. Farrell is joined today 
by George Stalcup, the GAO's Director of Strategic Issues. We 
are enormously grateful to that agency. It provides 
extraordinary help to us doing our job. We are grateful for 
those who toil in those areas.
    Chick, we'd welcome your comments.

STATEMENT OF CHARLES S. CICCOLELLA, ASSISTANT SECRETARY FOR THE 
VETERANS' EMPLOYMENT AND TRAINING SERVICE, DEPARTMENT OF LABOR, 
                        WASHINGTON, DC.

    Mr. Ciccolella. All right, sir. Thank you very much, 
Senator Kennedy, Senator Isakson, and Senators. Thank you for 
the opportunity to testify before the committee on what 
veterans face when they return from their deployments.
    Senator, as you mentioned, since the onset of operations in 
Iraq and Afghanistan, about a 1\1/2\ million and a half service 
members have actually served in theater.
    The Chairman. We've been joined by Senator Reed, who, as we 
all know, is not only a member of the committee, but had a 
distinguished military career as well. And we're very, very 
grateful for his interest and involvement and participation. 
Thank you, Jack, for being here.
    Please continue.
    Mr. Ciccolella. Yes, sir. As you noted, 1\1/2\ million 
service members have served in these two theaters and many, 
many of those 630,000 National Guard and Reservists that you 
mentioned.
    Each year, nearly 320,000 service members leave the 
military. That's about 220,000 who are coming out of the active 
duty and about 90,000 who leave the National Guard for their 
jobs or other purposes. The committee has asked what these 
veterans face when they return. Well, the deployments that 
they're going on today, whether they're active duty or National 
Guard or Reserve service members, present challenges for the 
service members and also for their families. For the National 
Guard and Reserve in particular, many members are married and 
employed, so the long tours of duty overseas do interrupt their 
normal roles as workers and parents and members of the 
community. And they also present challenges for the employers, 
in terms of bringing them back into the workforce. If a 
National Guard or Reservist is self-employed, then they also 
face economic losses.
    In addition to this, as you mentioned, some service members 
are coming back wounded and injured, some seriously wounded and 
injured. And that will have a lasting impact on their lives and 
their employment.
    What service members need when they transition to civilian 
life from active duty, is good information and help with the 
tools and the skills that they will need to return to the 
workforce. And they need this help early on. They need it 
before they deploy and they need it when they come back during 
their postdeployment demobilization.
    The military, the Defense Department, the Department of 
Labor, and the Department of Veterans Affairs work together to 
help service members as they separate from active duty or as 
they separate when they demobilize, in order to return to their 
civilian life and jobs. In particular, all service members 
today participate in pre- separation counseling. That's a four-
part program, which is pretty well organized. Active duty 
members attend a transition employment workshop that helps them 
to prepare a plan for separation. National Guard and Reserve 
commanders provide information and assistance to their members 
when they demobilize so they know how and where they can get 
help.
    In addition to this, almost every Governor has started a 
program in their State to increase public support and awareness 
of returning service members, and to provide additional 
supporting services for them.
    The Department of Labor provides employment assistance for 
returning service members and veterans, including National 
Guard members and Reservists. Our mission is to help them get 
good jobs or to ensure they get their jobs back. And we do this 
in three ways. We do that first by providing a transition 
employment workshop for active duty military members that helps 
with writing resumes, interviewing skills, and learning about 
the job market before they get out. We've also made this TAP 
employment workshop, or modified workshop, available to 
returning National Guard and Reservists whenever it's 
requested. And we work with the military to improve the 
participation rates in this program.
    Second, we help our veterans through the publicly funded 
workforce system at the Nations over 3,200 job centers, or one-
stop career centers. At all these one-stops, veterans receive 
priority of employment services. And at many of the one-stops 
there are veteran employment representatives that are funded by 
the Department of Labor, who work one on one with our veterans.
    For returning National Guard and Reservists in particular, 
the services of these veteran employment representatives are 
very, very important, because as they're having a problem in 
either getting a job back or in changing careers, these 
veterans can help the veterans that are coming out.
    We also provide one-on-one job training and counseling and 
reemployment services to the seriously wounded and injured 
service members, who can not return to active duty or their 
Guard and Reserve units, through an innovative program we 
started almost 4 years ago, that we call Recovery Employment 
Assistance Lifelines. With our network of veteran employment 
representatives, we actually network these service members once 
they're stabilized, so that we can work with them or their 
spouse or caregiver, to make sure they get employment.
    We especially want to help veterans who are at risk of 
becoming homeless or may already be homeless. And we do this 
through two very successful programs call the Homeless Veteran 
Reintegration Program and the Veterans Workforce Investment 
Program.
    The third way in which we help veterans is by protecting 
their employment when they're called up to serve. We work hand-
in-hand with the Departments of Justice, Defense, and the 
Office of Special Counsel to enforce USERRA, the law that we've 
talked about that protects employment protections for veterans. 
The Department of Labor administers USERRA, it's a top 
priority. The specific goals are to protect the employment and 
reemployment of veterans and to prohibit, as you mentioned, 
discrimination due to military obligations.
    Most USERRA problems result from misunderstandings in the 
employers obligations. We've made the law much easier to 
understand. We also work with the State and DOD and the 
military departments and units to make sure that service 
members are briefed both before and after they leave the 
service. We've made USERRA information available 24 hours a 
day. We also provide continuous assistance to service members 
and employers so they can contact us on USERRA issues and we 
also investigate USERRA complaints.
    We investigate through a network of over 100 trained USERRA 
investigators who are located in all the States, who are 
trained to meet the workforce employment needs of today's 
service members, not only in terms of USERRA, but also in terms 
of preparing them for jobs. When we can't resolve a case, we 
advise our clients of their right to refer the case to the 
Department of Justice and the Office of Special Counsel if it's 
a Federal sector case. And DOJ and OSC have enforcement 
authority and can represent the clients before, in a Federal 
Court or before the Merit Systems Protection Board.
    USERRA complaints levels rose after 9/11. There were about 
900 cases a year. The year before last there were 1,500. 
They've decreased to about 1,400 investigations that we're 
doing this year. We've been carrying on a demonstration, as you 
know, with Mr. Bloch and the Office of Special Counsel, and the 
General Accounting Office recently reviewed that. And we're 
taking some very good actions to identify the important things 
that the GAO identified as areas where we can improve.
    Mr. Chairman, our agency is a small agency. We're dedicated 
to the three very important missions that we have and to 
getting veterans reintegrated into the workforce as quickly and 
as smoothly as we can. We take our responsibilities very 
seriously, especially when it comes to our returning veterans 
from Iraq and Afghanistan.
    And I thank you very much for the opportunity to appear 
before you today, sir.
    [The prepared statement of Mr. Ciccolella follows:]

              Prepared Statement of Charles S. Ciccolella

    Chairman Kennedy, Ranking Member Enzi, and distinguished members of 
the committee, thank you for the opportunity to testify on what 
returning Iraq and Afghanistan veterans face when they come home and 
return to their civilian employment. Since the onset of military 
operations in Afghanistan and Iraq, over 1 million members of the 
active duty military have served in these two theaters. In addition, 
many of the Nation's National Guard units and Reservists have also been 
called to active duty in support of the Global War on Terror and have 
served in these theaters or elsewhere.
    In fact, the Department of Defense (DOD) reports that over 600,000 
National Guard and Reserve mobilizations have occurred since September 
11, 2001. This represents the largest deployment of the National Guard 
in the past half century.

            WHAT RETURNING VETERANS FACE WHEN THEY COME HOME

    These situations present some complex issues because the 
deployments create challenges for service members and their families. 
For the National Guard and Reserve in particular, many of their members 
are married and employed. Long tours of duty overseas interrupt their 
normal roles as workers, parents and members of the community. Lengthy 
tours of duty also challenge employers as they deal with these absences 
and with the reintegration of service members back into the workforce.
    In addition, some National Guard and Reserve members report 
themselves as self-employed or own a small business. Extended 
deployments may mean they face special problems, including economic 
losses or other adverse effects.
    Many service members are returning severely wounded and injured. 
Their recoveries are often long and difficult, and this may have a 
lasting impact on both them and their families. They need and deserve 
special assistance.
    To put this into perspective, each year, nearly 320,000 military 
members return to civilian status--either through retirement, voluntary 
separation from active duty, demobilization or discharge from the 
National Guard or Reserve, or as a result of a discharge due to 
disability.

 SERVICE MEMBERS NEED GOOD INFORMATION AND ASSISTANCE WHEN THEY RETURN 
                    TO THEIR CIVILIAN LIVES AND JOBS

    To help service members' transition to civilian life from active 
duty, they must not only have good information, but also the tools and 
skills to make their transition back to civilian life as smooth as 
possible. This information and assistance comes from many sources.
    DOD and each of the military services strive to assist service 
members as they separate from active duty or demobilize and return to 
their civilian life and jobs.
    Active duty members participate in formal separation counseling and 
transition assistance programs when they are preparing for discharge. 
National Guard and Reserve commanders provide information and 
assistance to their members when they demobilize, so their members know 
how and where they can receive help if they need it.
    States also assist. Most States have created programs to increase 
public support and awareness of returning service members. Services 
include outreach and family support activities, financial assistance 
such as emergency funds, educational assistance, mental health and 
other comprehensive services and assistance to augment the services 
provided by the Federal Government.

  DEPARTMENT OF LABOR (DOL) EMPLOYMENT SERVICES FOR RETURNING SERVICE 
                          MEMBERS AND VETERANS

    DOL provides a variety of employment assistance programs for 
returning service members and veterans, including National Guard 
members and Reservists. It is the job of DOL to help these men and 
women transition into the civilian sector through job counseling, 
referral and placement services.
Transition Assistance
    First, through DOD's Transition Assistance Program (TAP), DOL helps 
returning veterans learn how to market their unique skills and 
experience to potential employers. DOL provides the TAP employment 
workshop that helps with writing resumes, preparing for interviews, and 
learning about the job market.
    Most of these employment workshops are facilitated by DOL-funded 
veterans employment representatives who are also located throughout the 
Nation at the many Career One-Stop Centers in the public workforce 
system.
    We also have made the TAP employment workshop, or a modified TAP 
employment workshop, available to returning National Guard and 
Reservists on a demand basis. We are supporting TurboTAP, a DOD 
initiative to provide a wide array of transition assistance information 
online.
    We have made the TAP workshop more relevant and, with the help of 
DOD, we are working hard to increase TAP participation in all the 
services. The Administration's goal is for 85 percent of active duty 
transitioning servicemembers to participate in TAP employment 
workshops.

Job Counseling and Placement Assistance
    Secondly, America's publicly funded workforce system provides 
priority services to help veterans find good jobs and careers at over 
3,200 full service and affiliate One-Stop Career Centers. The 
specialized services of the Local Veterans Employment Representative 
(LVER) and the Disabled Veteran Outreach Program (DVOP) specialist are 
also available to both transitioning service members and veterans.
    For returning National Guard and Reservists in particular, the 
services of these veteran employment representatives are important from 
two points of view. First, the DVOP or LVER can link service members to 
assistance if they are having problems returning to their employers. 
Secondly, if the returning National Guard member or Reservist desires 
to seek another job instead of returning to the pre-service employer, 
they can receive a full range of workforce and employment services on a 
priority basis from One-Stop Career Center staff.

Employment Assistance for Veterans Who Need Help the Most
    Four years ago, recognizing the special employment challenges that 
certain returning Iraq/Afghanistan veterans face in the workplace, the 
Department initiated the Recovery Employment Assistance Lifelines, or 
REALifelines program. This program provides one-on-one job training, 
counseling, and re-employment services to seriously wounded and injured 
service members who cannot return to active duty.
    REALifelines staff, both Federal and State, are forward-positioned 
at seven major military medical facilities, at the Department of 
Defense Military Severely Injured Center, with the U.S. Marine Corps 
and with the U.S. Army at several installations. Through REALifelines, 
we help wounded or injured veterans and their spouses or caregivers 
build new and rewarding careers in the private sector.
    DOL has also focused on assisting any veterans who may find 
themselves homeless or facing other barriers to employment. We do this 
through the Homeless Veterans Reintegration Program (HVRP) and the 
Veterans Workforce Investment Program (VWIP). While we are not seeing a 
large number of returning Iraq/Afghanistan veterans in these special 
programs, we do see some and we conduct special outreach to these 
veterans.

Protecting Service Members' Employment
    One of our Department's top priorities is protecting our military 
members' jobs when they're called up to serve. We work hand-in-hand 
with the Departments of Defense, Justice and Office of Special Counsel 
(OSC) to enforce USERRA, which was signed into law in 1994. The goal of 
this law is to protect the employment and re-employment rights of 
veterans returning to civilian employment after active-duty service.
     The Uniformed Services Employment and Reemployment Rights Act
    USERRA protects the public and private sector civilian job rights 
and benefits of veterans and members of the armed forces, including 
National Guard and Reserve members. The law prohibits employer 
discrimination due to military obligations and provides re-employment 
rights to returning service members. DOL's Veterans' Employment and 
Training Service (VETS) not only investigates complaints by service 
members and veterans, it also administers a comprehensive outreach, 
education, and technical assistance program here in the United States 
and around the world.
    VETS works closely with DOD's Office of the Assistant Secretary for 
Reserve Affairs' Employer Support of the Guard and Reserve (ESGR) to 
ensure that service members are briefed on their USERRA rights before 
and after they are mobilized. We conduct continuous USERRA outreach and 
education to inform service members and employers on their rights and 
responsibilities under the law. Since most complaints result from a 
misunderstanding of the USERRA obligations and rights, we took an 
important step in 2005 to make it easier to understand the law by 
promulgating clear, easy-to-understand regulations in question and 
answer format. Since 9/11, VETS has provided USERRA assistance to over 
490,000 service members, employers and others.
    VETS has also made it easier for a service member to determine if 
he or she has a valid complaint and if so, to file a USERRA complaint 
online through our interactive USERRA elaws Advisor. The Advisor 
provides the user with information on eligibility and rights and 
responsibilities under the law and is available 24 hours a day, 7 days 
a week, at www.dol.gov/elaws/userra.htm.
    We vigorously investigate complaints, and when employers do not 
comply with the law we make every effort to bring them into compliance. 
VETS does this through a nationwide network of over 100 highly skilled 
Federal employees who are employment specialists. Almost all are 
veterans themselves. They are trained to meet the many workplace 
employment needs of today's service members. VETS' Federal employment 
specialists are located where veterans need them most--in all 50 
States, the District of Columbia, and Puerto Rico. These specialists 
conduct outreach and provide technical assistance to employers, service 
members, veterans, and veterans' organizations on employment and re-
employment issues at the national, State and local levels, including at 
locations where service members are demobilized.
    VETS coordinates with ESGR, the OSC, and the Department of Justice 
(DOJ) to ensure the employment rights and benefits for returning 
service members are protected. ESGR engages in a number of efforts to 
ensure employer support for the Guard and Reserve is sustained. ESGR 
also reinforces the relationship between employers and employees 
through informal USERRA mediation. DOJ and the OSC help enforce USERRA 
by representing USERRA complainants when DOL is unable to resolve the 
complaint and/or when the service member or veteran requests their case 
be referred.
    VETS has a decades-long history of protecting the rights and 
interests of American service men and women employed in both the public 
and private sectors by investigating complaints under USERRA and its 
predecessor laws. Complaints under USERRA peaked in 1991 following 
mobilizations for Operation Desert Storm, when claims topped 2,500. 
After 9/11, USERRA complaints rose again, from approximately 900 per 
year to approximately 1,500 in fiscal year 2004 and fiscal year 2006. 
Complaints in fiscal year 2007 decreased to 1,400. As the chart below 
shows, complaints during the Global War on Terror have never approached 
their Desert Storm high. We attribute much of this result to VETS' 
comprehensive outreach to service members and employers and to the 
agency's user-friendly 2005 regulations.




     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 USERRA 
claims made by Federal Government employees whose social security 
number ends in an odd-numbered digit are referred to OSC for 
investigation, resolution and enforcement. The demonstration project 
was to conclude at the end of September 2007, but the current 
Continuing Resolution extended the demonstration project through 
November 16, 2007.
    Since inception of the pilot on February 8, 2005 through the end of 
fiscal year 2007, VETS received 3,792 USERRA complaints. Of those, 614 
(16.2 percent) were Federal cases that were subject to the 
demonstration. VETS transferred 288 of those Federal cases to OSC under 
the demonstration, of which 13 were transferred because VETS concluded 
that they might include prohibited personnel practices.

           ALL USERRA CLAIMS RECEIVED BY VETS 2/8/05--9/30/07




    GAO's 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 non-Federal case, and that our 
investigators undergo mandatory training on those procedures. The 
report also recommended that VETS develop and implement an internal 
review mechanism for all unresolved claims before claimants are 
notified of determinations and cases are closed, to help ensure 
adherence to procedures and standards. Finally, GAO recommended that 
VETS implement internal controls to ensure that our investigations 
database accurately reflects the number of unique claims, the dates 
that these claims were closed and the outcomes of the claims.
    VETS is actively addressing the issues raised in GAO's Report. VETS 
has taken positive steps to address each of these recommendations. For 
example:

     VETS investigative staff received new instructions on 
notifying claimants of their right to referral and on recording the 
appropriate closure date for a claim.
     These instructions have been incorporated into the revised 
USERRA Operations Manual, which will be field-tested this month and 
fully implemented in January 2008. The new manual will also clarify 
procedures for documenting case outcomes and recording them correctly 
in the VETS investigative data base.
     VETS investigators have all participated in mandatory 
conference calls reinforcing procedures for notifying claimants of 
their right to referral. In addition, regional investigator training is 
being conducted in each of the VETS regions and this training will also 
focus on these notification procedures.
     VETS is developing an online distance learning module for 
investigators that will include this instruction.
     VETS has already identified ways to correct previous 
reporting practices that resulted in duplicate cases being reported. We 
are working with GAO to ensure that issues identified by GAO 
surrounding duplicate cases are addressed.

    VETS is proud of its record in enforcing USERRA since its 
enactment. For example, over the past 10\1/2\ years, 91 percent of 
Federal USERRA cases were resolved by VETS to the satisfaction of both 
parties, without need for referral to the OSC. Furthermore, 83 percent 
of ``meritorious'' Federal USERRA cases resolved by VETS (claims 
granted or settled) reached resolution within 90 days.
    VETS remains committed to continuous improvement of our USERRA 
investigative processes and our reporting to Congress on 
investigations. 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.

                               CONCLUSION

    The United States has the best, most capable, most technologically 
advanced military in the world. The dedication to service and the 
willingness of our military to sacrifice in order to support our 
national security is extremely important. Our service members are the 
guarantors of our freedom and preserve our way of life. Our country is 
a better and safer place because of them.
    Our men and women in uniform are known for their intelligence, 
strong work ethic, loyalty, discipline, and leadership abilities. They 
have the highly marketable professional qualities that employers are 
looking for.
    Mr. Chairman, DOL takes seriously its responsibilities for 
assisting our veterans, especially those returning from Iraq/
Afghanistan, in finding good jobs and careers and in protecting their 
job rights. These brave men and women are protecting our national 
security and we must do everything we can to help protect their 
economic and job security.
    Thank you for allowing me to testify before this committee today. I 
am prepared to respond to your questions.

    The Chairman. Thank you.
    Mr. Sumner.

   STATEMENT OF L. GORDON SUMNER, PH.D., EXECUTIVE DIRECTOR, 
   NATIONAL COMMITTEE FOR EMPLOYER SUPPORT OF THE GUARD AND 
                     RESERVE, ARLINGTON, VA

    Mr. Sumner. Mr. Chairman, thank you for this opportunity to 
come and participate in your panel today. You have a copy of my 
prepared testimony that I have submitted for the record. And 
again, thank you very much for this opportunity. I'm looking 
forward to answering yours and your panel member's questions.
    And before I leave, to Senator Reed, I'd also like to add, 
Airborne all the way, sir.
    [The prepared statement of Mr. Sumner follows:]

           Prepared Statement of L. Gordon Sumner, Jr., Ph.D.

    Chairman Kennedy and members of the committee, thank you for the 
invitation to offer my perspective on issues relating to the Uniformed 
Services Employment and Reemployment Rights Act (USERRA) program. Your 
invitation letter asked me to address the issues faced by returning 
Iraq/Afghanistan veterans when they come home and return to their 
civilian employment, with a focus on how the Uniformed Services 
Employment and Reemployment Rights Act (USERRA) is working to protect 
our returning veterans as they transition back into the workforce.
    As you know, the Uniformed Services Employment and Reemployment 
Rights Act of 1994 protects the employment and re-employment rights of 
Federal and non-Federal employees who leave their employment to perform 
military service. The role of informing service members and employers 
about this law, and of enforcing it fall to several different 
government organizations. It should be noted that USERRA covers all 
employees and employers except screeners employed by the Transportation 
Security Administration.
    Employer Support of the Guard and Reserve (ESGR) is a Department of 
Defense organization that seeks to develop and promote a culture in 
which all American employers support and value the military service of 
their employees. We do this by recognizing outstanding support, 
increasing awareness of the law, and resolving conflicts through 
informal mediation.
    Gaining and maintaining employer support requires a strong network 
comprised of both military and civilian-employer leaders that is 
capable of providing communication, education and exchange of 
information. ESGR works with the Reserve component leadership from each 
service, appropriate government organizations such as the Department of 
Labor's Veterans' Employment and Training Service (DOL-VETS), the Small 
Business Administration, and industry associations such as the Chamber 
of Commerce and others, to create broad-based, nationwide support for 
our troops.
    It is important to note that ESGR is not an enforcement agency, and 
we do not have statutory authority to offer formal legal advice or to 
participate in any formal investigative or litigation process. Our part 
in the USERRA issue is to inform and educate our customers--service 
members and their civilian employers--regarding their rights and 
responsibilities under the USERRA statute. ESGR also provides informal 
mediation services. We have over 1,000 trained volunteer ombudsmen 
throughout the country and a national call center in Arlington, 
Virginia, to provide those services. Our call center received over 
13,000 requests for assistance during fiscal year 2007. Of those 
requests, 10,742 were informational in nature, that is, they were 
sufficiently resolved by providing information about the law. The 
remaining 2,374 were assigned as cases to our ombudsmen. Through a 
Memorandum of Understanding (MOU) between ESGR and DOL-VETS, ESGR 
informs those service members whose cases ESGR is unable to 
successfully mediate within 14 days of their options to either contact 
the DOL-VETS or to retain private counsel. During fiscal year 2007, 
ESGR referred 416 cases to DOL-VETS. It should be further noted that 
the ESGR mediation process is now covered by the Administrative Dispute 
Resolution Act of 1996. This statute is fairly restrictive regarding 
the protection of privacy for all parties involved in the dispute. 
Thus, even for cases ESGR refers to DOL-VETS under our MOU, ESGR is 
unable to pass on any case information exchanged between claimants and 
ESGR ombudsmen without the written consent of all parties involved in 
the mediation.
    ESGR's mandate ends at this point in the USERRA resolution process. 
As I understand it, DOL investigates and attempts to resolve claims 
filed by service members, and if not successful, DOL informs the 
Federal claimants that they may request to have their claims referred 
to the OSC, and informs non-Federal claimants that they may have their 
cases referred to the Department of Justice for further review and 
possible representation. Of course, all parties reserve the right to 
engage private counsel at any time.
    As you know, 639,000 Reserve component members have been mobilized 
since the terrorist attacks on September 11, 2001. There are 93,898 RC 
members mobilized today (November 1, 2007). The use of the Reserve 
component has shifted from a strategic reserve to an operational 
reserve whereby the National Guard and Reserve no longer are forces 
held in reserve but are an integrated and integral part of our total 
force.
    The Department is well aware of the stress this operational use has 
on our service members and their employers. To that end, Secretary 
Gates has provided policy guidance designed to give more predictability 
as to the frequency and duration of RC mobilizations so that both RC 
members and their employers can better plan their professional and 
personal futures.
    As I stated earlier, ESGR operates proactive outreach programs to 
inform, educate, and recognize the employers of our service members. We 
do this to raise awareness of USERRA and to thank employers for their 
support. As you know, employers suffer twice the cost when their 
employees are mobilized for military duty. They lose their trained, 
productive employees and they have to often hire replacements for the 
time those employees are gone. We talk all the time about the costs 
borne by our service members, and by their families. Those are no doubt 
real costs. But we do not often talk about the costs borne by the 
employers of Guard and Reserve members. These employers do not have a 
choice when we take away their employees for months. Despite these very 
real costs, employers across the country continue to provide incredible 
support, and it is the least we can do to publicly recognize that 
support.
    All of our records, including the numbers of RC members who contact 
us to recognize their employers, to the day-to-day interaction ESGR 
volunteers across the country have with service members and employers, 
to the ever decreasing numbers of USERRA cases handled by ESGR, 
indicate that employer support for the Guard and Reserve remains 
strong. Of course there are instances of USERRA violations, but I urge 
caution to not interpret isolated but highly visible problems as broad-
based policy problems.
    We are working with the individual uniformed services to raise 
awareness of USERRA and to provide training about USERRA to all RC 
members. We also continue to work with the appropriate Federal 
Government agencies such as the DOL-VETS, the Department of Veterans 
Affairs, and the Small Business Administration, to better communicate 
to service members and their employers about USERRA, transition 
assistance and reintegration programs.
    The Department has also provided ESGR more resources over the past 
5 years to better serve our customers and we now have 150 full-time 
staff around the country in addition to the almost 4,500 volunteers. We 
also have a national customer service center that is operational 12 
hours per day during the workweek to provide service.
    We continue to believe that the existing USERRA process will 
continue to best serve the interests of service members, whereby the 
Department of Defense, through the ESGR organization, provides informal 
mediation, and the Department of Labor continues to have the statutory 
authority to investigate USERRA claims. ESGR and DOL will, of course, 
continue to collaborate to the fullest extent possible to ensure the 
speediest and most effective resolution of USERRA challenges.
    For our part, ESGR will continue its mission to gain and maintain 
employer support by recognizing outstanding support, increasing 
awareness of the law, and resolving conflicts through informal 
mediation, and by cooperating to the fullest extent allowable with the 
Department of Labor.
    I hope that I have been able to clarify the role played by the 
Employer Support of the Guard and Reserve in helping to explain, and 
where applicable, mediate, issues involving the Uniformed Services 
Employment and Reemployment Rights Act. Thank you.

    The Chairman. There you go. Are you going to say something 
about Boston University and----
    [Laughter.]
    The Chairman [continuing]. Your wonderful experience you 
had in Boston in all those years.
    Mr. Sumner. Well, I'm----
    The Chairman. But we'll settle for Airborne.
    Mr. Sumner. In fact, it was so good, I'm going to go back 
to Harvard this summer.
    The Chairman. Good for you. Thank you.
    Mr. Bloch.

          STATEMENT OF SCOTT BLOCH, SPECIAL COUNSEL, 
        U.S. OFFICE OF SPECIAL COUNSEL, WASHINGTON, DC.

    Mr. Bloch. Chairman Kennedy, Senator Isakson, members of 
the committee. Good morning and thank you for calling this 
hearing. Thank you for the opportunity to testify on matters of 
concern to our service members, their families, and our 
national security.
    My name is Scott J. Bloch, Special Counsel of the United 
States, and head of the U.S. Office of Special Counsel. Sunday 
is Veterans Day, when we honor the sacrifice and dedication of 
those who protect our Nation.
    It is fitting to ask how to help those who serve on active 
duty and expect their civilian employers to welcome them back. 
Sadly, some returning service members are turned away at their 
job site or denied full rights and benefits. The message is, 
welcome back, you're fired.
    Sometimes that employer is the same Federal Government that 
mobilized the service member. Federal Government employees are 
about 10 percent of the National Guard and Reserve, but they 
file a greater percentage of claims under USERRA. This law 
notes that the Federal Government should be a model employer.
    When I took office nearly 4 years ago, I found the Federal 
Government anything but a model employer. Reserve service 
members who were being cycled into Iraq and Afghanistan and 
others performing necessary Guard and Reserve duty to support 
these foreign campaigns, were routinely coming back to 
indifference, hostility, and job discrimination.
    An additional harm occurs when service members, who are 
lucky enough to know their rights and turn to the Federal 
bureaucracy, are denied justice by either having it delayed or 
by being told they have no case after a lengthy drawn-out 
process. Sometimes service members have had to wait a year, 2 
years, even longer to learn they had no case. Many were not 
told they had the right to come to OSC for relief. Look at our 
charts that show our process under the demonstration project 
versus labors process, which we have provided to the committee.
    Facing the loss of a job after military service is a great 
slap in the face. But then being cast into a system that seems 
not to care how long the service member has to wait for relief 
is devastating and totally avoidable. I'm determined to change 
all of that. I created a dedicated USERRA unit at OSC and 
started to take USERRA seriously.
    We filed the first ever prosecution by OSC in June 2004. It 
took about 2 years for that case to come our way, after she was 
told she had no case. When we got it, we did a new 
investigation of this case, involving a long-term Department of 
Veterans Affairs nursing supervisor with a Ph.D. She was fired 
after lengthy service for VA Hospitals. Her supervisor said, 
``We can't have these people going on military leave.'' We 
obtained all of her back pay and interest on that back pay and 
her private attorney's fees, but it took 3 years to obtain 
justice. And by that time her career was over.
    I have filed a total of five USERRA prosecutions since 
becoming the Special Counsel. We still have one pending. We 
obtained full corrective action in the other four, even though 
in two of them the claimant had been told they had no case 
before they came to us.
    Such is the Army Corps of Engineer employee who entered the 
Air Force and then came back to the Army Corps and was told he 
had no job. He filed a complaint and was told he had no case. 
When we got the case over a year after his initial complaint 
and several months after he requested referral to OSC, we 
determined the Army Corps had violated his rights and filed 
suit. We got him back pay of $85,000 and his job back in just 
over a year.
    If Congress leaves matters in the status quo, this is what 
you will continue to hear regarding service members. We are 
getting corrective action for one in four complainants. We do 
so in less than 150 days. We have prosecutorial power. GAO 
found that DOL did not always tell service members they could 
come to OSC when they turned them down. Labor has been counting 
cases that close administratively that OSC would never have 
opened. We believe DOL did not count the time a service members 
case is in a regional solicitor's office, which can be up to a 
year sometimes.
    OSC is the only Federal investigative agency that can be a 
true single point of contact for Federal employees making 
USERRA claims. If Congress gives the matter back to DOL, cases 
still must come to OSC for prosecution, assuming VETS tells a 
service member of his rights. And all cases must come to us if 
there is a prohibitive personnel practice involved. OSC is the 
personnel law specialist in the Federal Government. If OSC 
receives all Federal USERRA claims at the outset, we will 
continue to work hard to remove this devastating problem that 
returning service members face.
    I look forward to your questions.
    [The prepared statement of Mr. Bloch follows:]

                  Prepared Statement of Scott J. Bloch

    Chairman Kennedy, Ranking Member Enzi, and members of the 
committee, good morning, and thank you for the opportunity to testify 
today on important matters of concern to our service members, 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).
    This Sunday is Veterans' Day, a day for Americans to honor the 
sacrifice and dedication of those who have served, and those who serve 
today, to protect our Nation. Members of the U.S. military serve our 
Nation in combat and through their readiness for combat. 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.
    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. 
Moreover, their military experience builds judgment, dedication, 
resourcefulness, and leadership--personal qualities that should be 
valued by employers.
    This is the week before Veterans' Day, and it is an especially 
appropriate time for us to examine how we can provide better support 
for members of our military who serve on active duty, and expect to be 
welcomed back by their civilian employers.
    Unfortunately, not all employers understand their obligations to 
their employees who meet their own obligations to our Nation through 
active duty service. Some service members, mostly members of the 
National Guard and Reserve who return from active duty, many from 
combat duties in Iraq and Afghanistan, 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--and not only in the private sector. Some 
members of the National Guard and Reserve, who also serve their country 
as Federal civilian employees, find themselves returning from active 
duty to a government unwilling to take them back, or only willing to 
take them back with less pay, status, or benefits. While civilian 
employees of the Federal Government represent about 10 percent of the 
National Guard and Reserve, they file a disproportionately greater 
percentage of claims under USERRA. Considering that the law specifies 
that the Federal Government is supposed to be a ``model'' employer, 
this is a disturbing trend.\1\ The very government that sends them 
forth into combat might deny them their livelihood when they come 
marching home.
---------------------------------------------------------------------------
    \1\ 38 U.S.C. Sec. 4301(b).
---------------------------------------------------------------------------
    Reasonable people would cry, ``There oughta be a law! '' But there 
have been laws to protect the jobs of returning veterans 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 13 years ago, Congress enacted 
and President Clinton signed into law the Uniformed Services Employment 
and Reemployment Rights Act of 1994, or USERRA. It 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.
    Thus, the passage of USERRA 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.
    Recognizing the inefficiencies inherent in this process, as well as 
OSC's unique expertise in investigating and prosecuting Federal 
employment claims, Congress passed the Veterans Benefits Improvement 
Act of 2004 (VBIA), which established a demonstration project whereby 
OSC receives roughly half of Federal USERRA claims from the beginning 
(i.e., when they are filed and prior to investigation).\2\ 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.
---------------------------------------------------------------------------
    \2\ Under the demonstration project, OSC has exclusive 
investigative jurisdiction over Federal-sector USERRA claims where: (1) 
the claimant has a Social Security Number ending in an odd digit, or 
(2) the claimant alleges a Prohibited Personnel Practice (PPP) as well 
as a USERRA violation (regardless of Social Security Number). DOL-VETS 
retains investigative jurisdiction over all other Federal-sector USERRA 
claims.
---------------------------------------------------------------------------
    The results of the demonstration project speak for themselves: OSC 
has obtained corrective action for service members in more than one in 
four USERRA claims filed with us. This is very high when you consider 
that the rate of positive findings and corrective action for 
governmental investigative agencies is usually well under 10 percent. 
OSC achieves 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 Web sites 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 have obtained for returning service members 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 a week before the congressional August recess. This left Congress 
with almost no opportunity to act on USERRA before the demonstration 
projected concluded on September 30th. We appreciate that Congress 
enacted an extension of the USERRA demonstration project in the fiscal 
year 2008 Continuing Resolution.
    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.''
    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. We employ members of the National Guard and Reserve at OSC; 
my Deputy Special Counsel is a lieutenant colonel in the Marine Corps 
Reserve, and four of our recent hires served in the military and are 
still in the Reserve.
    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. We also just recruited a 
nationally-known USERRA expert, Sam Wright, a captain in the Navy 
Reserve, who helped draft the law and has written and spoken 
extensively about USERRA and the predecessor re-employment statute, 
throughout his career. He can assist us not only in the prosecution of 
complex cases but also in outreach and public affairs aspects of our 
work for veterans and active members of the National Guard and Reserve.
    OSC is the only Federal investigative agency that can provide a 
true single point of contact for Federal employees making claims under 
USERRA. Even if Congress decided to return exclusive investigative 
jurisdiction to DOL-VETS, USERRA cases involving Prohibited Personnel 
Practices would still have to be passed to OSC. 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 are proud of our achievements enforcing USERRA. We have 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, the case of an Army Corps of 
Engineers employee, who was not re-employed 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, re-employment 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 longer perform his former job, we 
convinced the agency to find him a suitable job consistent with his 
physical limitations, along with back pay.
    Cases that before took several years to come to no positive 
conclusion now routinely take well under a year for OSC to investigate 
and resolve favorably. 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.
    Moreover, giving OSC exclusive jurisdiction over USERRA Federal 
sector claims 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.
    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 service members 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. Last 
week, the Department of Defense reported that 93,898 members of the 
National Guard and Reserve had been mobilized and were on active duty. 
It is when these service members 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 service members who have been turned away by 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.

    The Chairman. Thank you.
    Ms. Farrell.

STATEMENT OF BRENDA FARRELL, DIRECTOR OF MILITARY AND CIVILIAN 
  PERSONNEL ISSUES IN THE DEFENSE CAPABILITIES AND MANAGEMENT 
    TEAM, GOVERNMENT ACCOUNTABILITY OFFICE, WASHINGTON, DC.

    Ms. Farrell. Mr. Chairman, Senator Isakson, members of the 
committee. George Stalcup and I are pleased to be here today to 
discuss the activities of the Departments of Defense, Labor, 
Justice, and the Office of Special Counsel regarding USERRA. 
This act protects millions of people, largely National Guard 
and Reserve members, as they transition between their military 
duties and their civilian careers.
    Mr. Chairman, in 2004, you recognized the issues associated 
with USERRA, particularly in light of the significant number of 
Reservists serving in Iraq and Afghanistan who would be 
demobilized, returned to their civilian jobs, and possibly 
called back to duty. Our testimony today is particularly 
relevant, because more than \1/2\ million Reservists have been 
called to duty since September 11, 2001.
    Let me briefly summarize our written statement, which is 
based upon work that we have conducted for you, Mr. Chairman, 
in response to Congressional mandates. Our statement is 
presented in three parts. First, let me elaborate on the 
overall process used to implement USERRA. The fact that four 
Federal agencies have key USERRA roles makes enforcement of the 
act somewhat complex.
    DOD along with Labor is responsible for informing service 
members and employers of their rights, benefits, and 
obligations under USERRA. Much of DOD's outreach is 
accomplished through volunteers with its employer support of 
the Guard and Reserve. This organization also has ombudsman who 
act as mediators for informal complaints that arise between 
service members and their employers. And in GAO's February 2007 
report, we noted that nearly 10,000 informal complaints had 
been filed with DOD in fiscal years 2004 and 2005. When 
ombudsman can not resolve the complaint, service members have 
several options. No. 1, service members can file formal 
complaints with Labor's Veterans Employment and Training 
Service. No. 2, service members can file complaints directly in 
court if it involves non-Federal employers or the Merit Systems 
Protection Board if it involves Federal Executive Branch 
employers. No. 3, certain Federal employees can file complaints 
directly with OSC under a Federal demonstration project.
    When a service member files a formal complaint with Labor, 
1 of its 115 investigators attempts to resolve it. If its 
investigators are unable to resolve the complaints, Labor is to 
inform the service members that they may request to have their 
complaints referred to Justice for complaints against private 
sector employers or State and local governments, or to OSC for 
complaints against Federal Executive Branch agencies.
    If Justice or OSC determines that the complaint has merit, 
it will attempt to solve the complaint directly with the 
employer, and if unsuccessful, represent the complainant in 
court for those referred to Justice or before the Merit System 
Protection Board for those referred to OSC. If Justice or OSC 
determine the complaint has no merit, it notifies the claimant 
of his or her right to pursue a cause of action.
    The second part of our statement addresses the 
implementation of USERRA. Although USERRA defines individual 
agency roles and responsibilities, no single office has 
visibility to focus on program results.
    Agencies have developed agency-specific output, rather than 
cross-cutting goals directed toward resolving service members' 
complaints. For example, agency goals address the complaints 
processing times of each stage of the process, rather than the 
entire time that elapses while service members wait to have 
their complaints addressed.
    GAO's 2005 review found that for certain cases, those that 
were closed and reopened two or more times, the total elapsed 
time that service members waited to have their formal 
complaints fully addressed averaged about 20 to 21 months, from 
the time they first filed their formal complaint with Labor, 
until the complaint was fully addressed by Labor, Justice or 
OSC.
    Finally, the last part of our statement notes that all four 
agencies have generally been responsive to GAO's 
recommendations, including those in our most recent report, 
issued in July 2007, to improve the implementation of USERRA, 
on outreach to employers, data sharing and trend information, 
reporting to Congress, and the internal review of Labors' 
investigator's determinations of USERRA complaints.
    With the Nation's attention so focused on those who serve 
our country, it is important that their employment and 
reemployment rights are protected.
    This concludes my opening statement, we would be pleased to 
take questions when you wish.
    [The prepared statement of Ms. Farrell follows:]

    
    
                Prepared Statement of Brenda S. Farrell

    Mr. Chairman, Senator Enzi, and members of the committee, we are 
pleased to be here today to discuss four Federal agencies' activities 
regarding the Uniformed Services Employment and Reemployment Rights Act 
(USERRA) of 1994.\1\ USERRA protects the employment and re-employment 
rights of millions of Federal and non-Federal employees who leave their 
civilian employment to perform military or other uniformed service. 
USERRA also prohibits discrimination in employment against individuals 
because of their uniformed service, obligation to perform service, or 
membership or application for membership in the uniformed services. 
USERRA further prohibits employer retaliation against any individual 
who engages in protected activity under USERRA, regardless of whether 
the individual has performed service in the uniformed services.
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    \1\ Pub. L. No. 103-353 (1994), as amended, codified at 38 U.S.C. 
Sec. Sec. 4301-4334.
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    Mr. Chairman, in 2004 you recognized the issues associated with 
USERRA, particularly in light of the significant number of National 
Guard and Reserve members serving in Iraq and Afghanistan who would be 
demobilized, returned to their civilian jobs, and possibly called back 
to duty.\2\ Our testimony today is particularly relevant because more 
than 500,000 reservists have been called to duty since September 11, 
2001.
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    \2\ The term reservists refers to the collective forces of the Army 
National Guard, Air National Guard, Army Reserve, Air Force Reserve, 
Navy Reserve, Marine Corps Reserve, and the Coast Guard Reserve.
---------------------------------------------------------------------------
    Our testimony is based on work that we have conducted for you and 
in response to congressional mandates. Since 2002, we have issued 
several reports on Federal agency efforts to carry out USERRA 
responsibilities. The four agencies primarily responsible for assisting 
service members under USERRA are the Department of Defense (DOD), the 
Department of Labor (DOL), the Department of Justice (DOJ), and the 
Office of Special Counsel (OSC).\3\ In our reports, we have made 
numerous recommendations to these agencies concerning the 
implementation of USERRA.\4\
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    \3\ The law also gives outreach responsibilities to the Secretary 
of Veterans Affairs, but we did not review actions of the Department of 
Veterans Affairs in supporting USERRA because its role is more limited.
    \4\ GAO, Military Personnel: Improved Quality Controls Needed Over 
Servicemembers' Employment Rights Claims at DOL, GAO-07-907 
(Washington, DC.: July 20, 2007); GAO, Military Personnel: Additional 
Actions Needed to Improve Oversight of Reserve Employment Issues, GAO-
07-259 (Washington, DC.: Feb. 8, 2007); GAO, Military Personnel: 
Federal Management of Servicemember Employment Rights Can Be Further 
Improved, GAO-06-60 (Washington, DC.: Oct. 19, 2005); GAO, U.S. Office 
of Special Counsel's Role in Enforcing Law to Protect Reemployment 
Rights of Veterans and Reservists in Federal Employment, GAO-05-74R 
(Washington, DC.: Oct. 6, 2004); GAO, Reserve Force: DOD Actions Needed 
to Better Manage Relations Between Reservists and Their Employers, GAO-
02-608 (Washington, DC.: June 13, 2002).
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    Our testimony is based on our three most recent reports on USERRA 
and examining whether DOD, DOL, DOJ, and OSC have effectively carried 
out their USERRA responsibilities.\5\ Our testimony addresses (1) 
organizational accountability in the implementation of USERRA and (2) 
actions that the agencies have taken to improve their internal 
processes to implement USERRA.
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    \5\ We recently testified on issues related to our July 2007 
report. GAO, Military Personnel: Considerations Related to Extending 
Demonstration Project on Servicemembers' Employment Rights Claims, GAO-
08-229T (Washington, DC.: Oct. 31, 2007).
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    As noted, this testimony is based on our prior work. For that work, 
we reviewed applicable laws, guidance, regulations, and operations 
manuals. To assess how efficiently and effectively DOD, DOL, DOJ, and 
OSC address USERRA complaints, we collected, reviewed, and analyzed 
data from a wide variety of sources (including the four Federal 
agencies) and interviewed responsible officials.\6\ We also reviewed 
DOD survey data and conducted original analysis on these data. To 
identify progress made by DOD in capturing employer information, we 
obtained and analyzed reporting compliance data from DOD and its 
reserve components. Further, we analyzed the number of disability 
complaints filed with DOD and DOL between fiscal years 2004 and 2006. 
We found DOD's civilian employment information and Employer Support of 
the Guard and Reserve (ESGR) databases to be of undeterminable 
reliability.
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    \6\ Federal agencies use a variety of terms to describe service 
member allegation of USERRA violations, including ``complaints,'' 
``claims,'' ``cases,'' ``matters,'' and ``referrals.'' For clarity and 
consistency throughout this testimony, we use the term complaint to 
describe these service member allegations. We refer to complaints to 
DOD as ``informal complaints'' and complaints to DOL, DOJ, and OSC as 
``formal complaints.''
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    In our October 2005 report, we compared data obtained from DOJ and 
OSC with those captured by DOL and, where available, we compared the 
information in DOL's USERRA Information Management System to 
information from hard copy complaint files for accuracy.\7\ For our 
July 2007 report, we assessed the reliability of selected data elements 
on Federal employee complaints from DOL's USERRA database by tracing a 
statistically random sample of data to case files from February 8, 
2005, through July 21, 2006.\8\ We determined that these data were 
sufficiently reliable, with the exception of certain data elements from 
DOL's USERRA database, which we note in this testimony. With respect to 
actions agencies have taken in response to our recommendations, we 
discussed the agencies' progress with knowledgeable officials from DOL, 
ESGR, and OSC. Our work on the above reports, as well as the work we 
conducted for this statement, was performed in accordance with 
generally accepted government auditing standards.
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    \7\ DOL's USERRA Information Management System is a Web-based case 
management and reporting tool implemented by DOL in October 1996 that 
allows for automated collection and investigator input of information 
regarding USERRA complaints and generation of reports for analysis of 
USERRA operations and outcomes. For purposes of this testimony, we 
refer to DOL's USERRA Information Management System as DOL's USERRA 
database.
    \8\ For our July 2007 report, we also assessed the reliability of 
selected data elements on Federal employee complaints from OSC's case 
tracking system for the same period. The data element that OSC uses to 
describe the outcomes of complaints was not sufficiently reliable for 
reporting specific outcomes.
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                                SUMMARY

    Mr. Chairman, our main message today is that the four Federal 
agencies have taken steps to better support and protect service 
members' rights under USERRA in response to problems identified and 
recommendations made in our prior reports. However, no single agency is 
accountable for maintaining visibility over the entire complaint 
resolution process and therefore, it is difficult for the responsible 
agencies to effectively carry out their USERRA responsibilities. 
Designating one single entity would, in GAO's view, enhance efforts to 
improve overall program results.

                               BACKGROUND

    The overall process used to implement USERRA is as follows:

     Outreach and resolution of informal complaints. DOD and 
DOL share responsibility for outreach--the education of service members 
and employers about their respective responsibilities under USERRA. 
Much of DOD's outreach is accomplished through ESGR, which performs 
most of its work through over 4,000 volunteers. DOL conducts outreach 
through its Veterans' Employment and Training Service (VETS) 
investigators, who are located nationwide. These investigators conduct 
briefings to educate employers and service members about USERRA 
requirements and responsibilities and handle service-related employment 
and re-employment questions that are directed to their offices.
    Service members who have USERRA-related issues with their employers 
can file informal complaints with DOD's ESGR. In our February 2007 
report, we noted that nearly 10,000 informal complaints had been filed 
with ESGR in fiscal years 2004 and 2005. A subgroup of ESGR's specially 
trained volunteers serve as impartial ombudsmen who informally mediate 
USERRA issues that arise between service members and their employers.
     Formal complaints and prosecution. When ESGR ombudsmen 
cannot resolve complaints informally, they notify service members about 
their options. Service members can file a formal complaint with DOL or 
file complaints directly in court (if it involves non-Federal 
employers) or the Merit Systems Protection Board (if it involves 
Federal executive branch employers). Under a Federal sector 
demonstration project established by the Veterans Benefits Improvement 
Act of 2004,\9\ DOL investigates complaints against Federal executive 
branch agencies for individuals whose social security numbers end in 
even numbers, and OSC is authorized to directly receive and investigate 
complaints and seek corrective action for individuals whose social 
security numbers end in odd numbers.

    \9\ The demonstration project began on February 8, 2005 and was 
originally scheduled to end on September 30, 2007. Pub. L. No. 108-454, 
Sec. 204 (2004), 38 U.S.C. Sec. 4301 note. It was extended through 
November 16, 2007. Pub. L. No. 110-92, Sec. 130 (2007).
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    When a service member files a formal complaint with DOL, one of 
VETS's 115 investigators examines and attempts to resolve it.\10\ If 
VETS's investigators are unable to resolve service member complaints, 
DOL is to inform service members that they may request to have their 
complaints referred to DOJ (for complaints against private sector 
employers or State and local governments) or to OSC (for complaints 
against Federal executive branch agencies).\11\ Before complaints are 
sent to DOJ or OSC, they are reviewed by a VETS regional office for 
accuracy and sufficiency and by a DOL regional Office of the Solicitor, 
which assesses the legal basis for complaints and makes an independent 
recommendation.
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    \10\ Another 74 investigators include regional administrators and 
management authorized to investigate USERRA complaints but not assigned 
to any.
    \11\ DOL is also to inform service members that they may file their 
complaint directly in court (if it involves non-Federal employers) or 
with the Merit Systems Protection Board (if it involves Federal 
executive branch employers).
---------------------------------------------------------------------------
    If DOJ or OSC determines that the complaint has merit, it will 
attempt to resolve the complaint without litigation and, if 
unsuccessful, represent the complainant in court (for those referred to 
DOJ) or before the Merit Systems Protection Board (for those referred 
to OSC).
    Figure 1 shows service members' options for obtaining Federal 
assistance with their USERRA complaints.



     Agency databases and reporting requirement. Each of the 
four Federal agencies responsible for assisting service members under 
USERRA maintains an automated database with complaint information. Both 
DOD and DOL have electronic complaint files that are stored in 
automated systems with query capabilities.
    The Secretary of Labor in consultation with the U.S. Attorney 
General and the Special Counsel prepares and transmits a USERRA annual 
report to Congress on, among other matters, the number of USERRA claims 
reviewed by DOL, and during the current demonstration project by OSC, 
along with the number of claims referred to DOJ or OSC. The annual 
report is also to address the nature and status of each claim, state 
whether there are any apparent patterns of violation of the USERRA 
provisions, and include any recommendations for administrative or 
legislative action that the Secretary of Labor, the U.S. Attorney 
General, or the Special Counsel consider necessary to effectively 
implement USERRA.

  NO SINGLE AGENCY IS ACCOUNTABLE FOR MAINTAINING VISIBILITY OVER THE 
                  ENTIRE COMPLAINT RESOLUTION PROCESS

    Although USERRA defines individual agency roles and 
responsibilities, it does not make any single individual or office 
accountable for maintaining visibility over the entire complaint 
resolution process. In our October 2005 report, we noted that the 
ability of Federal agencies to monitor the efficiency and effectiveness 
of the complaint process was hampered by a lack of visibility 
resulting, in part, from the segmentation of responsibility for 
addressing complaints among multiple agencies. Moreover, from the time 
informal complaints are filed with DOD's ESGR through final resolution 
of formal complaints at DOL, DOJ, or OSC, no one entity has visibility 
over the entire process. We found that the agency officials who are 
responsible for the complaints at various stages of the process 
generally have limited or no visibility over the other parts of the 
process. As a result, Federal agencies have developed agency-specific 
output rather than cross-cutting goals directed toward resolving 
service members' complaints. For example, agency goals address the 
complaint processing times of each stage of the process, rather than 
the entire time that elapses while service members wait to have their 
complaints addressed. Meanwhile, the service member knows how much time 
is passing since the initial complaint was filed. In October 2005, we 
reported that more than 430 of the 10,061 formal complaints filed with 
DOL between October 1, 1996, and June 30, 2005, were closed and 
reopened and 52 complaints had been closed and reopened two or more 
times. Our analysis of those 52 complaints showed that the processing 
times averaged about 3 to 4 months but the total elapsed times that 
service members waited to have their complaints fully addressed 
averaged about 20 to 21 months from the time they first filed their 
initial formal complaints with DOL until the time the complaints were 
fully addressed by DOL, DOJ, or OSC.\12\
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    \12\ Because dates in DOL's USERRA database did not always match 
the dates in the other agencies' systems and of the concerns raised in 
our July 2007 report about the investigation closed dates entered for 
Federal sector complaints, discussed later in this statement, the 
processing and total elapsed times may not be accurate and the figures 
presented here are not precise reflections of processing or total 
elapsed times. For our 2005 report, we reviewed hard copy complaint 
files at the regional offices, tracked cases if they were referred to 
DOJ or OSC, and spoke with relevant investigators about these cases. We 
determined these data were sufficiently reliable for illustrating the 
differences between the agencies' focuses on outputs and the service 
members' concern with the results.
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    We have previously suggested and continue to believe that Congress 
should consider designating a single individual or office to maintain 
visibility over the entire complaint resolution process from DOD 
through DOL, DOJ, and OSC. We believe this would encourage agencies to 
focus on overall results rather than agency-specific outputs and 
thereby improve Federal responsiveness to service member complaints 
that are referred from one agency to another. In response to this 
matter, in our 2005 report, both DOL and OSC were supportive, and both 
agencies noted that they had the expertise to oversee the USERRA 
complaint resolution process. However, DOL stated that with the 
mandated demonstration project ongoing, it would be premature to make 
any suggestions or recommendations for congressional or legislative 
action until the project has been completed. DOD and DOJ did not 
provide comments on this matter.

  AGENCIES HAVE TAKEN ACTION TO IMPROVE INFORMATION ON EMPLOYERS AND 
               ASSISTANCE TO SERVICE MEMBERS UNDER USERRA

    DOD, DOL, DOJ, and OSC have generally been responsive to the 
recommendations we have made in our prior reports. Following is the 
status of some of the improvements made thus far.
Outreach
    Integral to getting service members the help they need is educating 
them and their employers on their respective responsibilities under 
USERRA. Since 2002, we have reported on DOD's need to obtain complete 
and accurate information on the civilian employers to better target its 
outreach efforts. Accurate, complete, and current civilian employer 
information is important to DOD to improve its ability to target 
outreach to employers, to make informed decisions concerning which 
reservists should be called for active duty to minimize the impact that 
mobilizations might have on occupations such as law enforcement, and to 
determine how businesses may be affected by reserve activation. As we 
recommended in our 2002 report, DOD implemented regulations that 
required the reporting and collection of employer information for 
Reserve personnel. Additionally, DOD established compliance goals for 
these service members. We noted in our February 2007 report that the 
percentage of service members reporting employer information to DOD had 
increased, but most reserve components had still not reached their 
compliance goals. In addition, we found that employment data were not 
necessarily current because some reservists were not aware of 
requirements to update their employer information and the services had 
not established a formal mechanism to remind reservists to update this 
personnel information as necessary to reflect changes in their current 
employment.
    To improve the reporting of National Guard and Reserve employment 
information, we recommended that the Secretary of Defense direct the 
Office of the Assistant Secretary of Defense for Reserve Affairs to 
establish specific timeframes for reservists to report their employment 
data, set specific timeframes for reserve components to achieve the 
established compliance reporting goals, and direct the service 
components to take action to ensure reporting compliance. In response 
to this recommendation, DOD indicated at the time of our report that 
its current policy on employer reporting established compliance goals. 
We noted in our report that DOD needed to establish a new deadline by 
which reservists must report their employer information to DOD and set 
specific timeframes for reserve components to achieve the established 
compliance reporting goal. In addition, to encourage reservists to keep 
their employer data current, we recommended that DOD instruct all 
military departments to establish a formal review mechanism that would 
require all reservists to review and update at least annually their 
reported employment-related information. At the time of our February 
2007 report, DOD was in the process of revising its policy on civilian 
employer reporting to require an annual review of reported employer 
information.
    DOD provides USERRA outreach and education to service members using 
several mechanisms, including a toll-free information line and 
individual and group briefings. DOD monitors the extent to which it 
reaches this population and the occurrence of USERRA-related problems 
by including questions on these areas in its Status of the Forces 
survey, which is periodically conducted to identify issues that need to 
be addressed or monitored. We noted in our 2005 report that survey 
questions offer the potential to provide insight into compliance and 
employer support issues. However, questions on the surveys vary from 
year to year and have not always included those pertaining to USERRA 
compliance and employer support. To gauge the effectiveness of Federal 
actions to support USERRA by identifying trends in compliance and 
employer support, we recommended that the Secretary of Defense direct 
the Under Secretary of Defense for Personnel and Readiness to include 
questions in DOD's periodic Status of Forces Surveys to determine:

     the extent to which service members experience USERRA-
related problems;
     if they experience these problems, from whom they seek 
assistance;
     if they do not seek assistance, why not; and
     the extent to which service members' employers provide 
support beyond that required by the law.

    In response to this recommendation, DOD incorporated these 
additional USERRA-related questions in its June 2006 Status of the 
Forces survey.

Data Sharing and Trend Identification
    Because the resolution of service member complaints could involve 
multiple Federal agencies, it is important that the agencies be able to 
effectively share and transfer information to efficiently process 
service member complaints. In October 2005, we found that the automated 
systems that DOD, DOL, DOJ, and OSC used to capture data about USERRA 
complaints were not compatible with each other.\13\ As a result, 
information collection efforts were sometimes duplicated, which slowed 
complaint processing times. To increase Federal agency responsiveness 
to USERRA complaints, we recommended that DOD, DOL, DOJ, and OSC 
develop a system to allow the electronic transfer of complaint 
information. At the time of our report, DOL and OSC concurred with this 
recommendation, DOJ did not provide comments, and DOD deferred to the 
other agencies. We noted in our February 2007 report that DOL had 
implemented an enhancement to its USERRA database in October 2006 to 
enable the four USERRA coordinating agencies to electronically transfer 
case information between agencies. The database enhancement allowed 
DOD, DOL, DOJ, and OSC to access and update the status of cases using 
the Internet and produce a report containing aggregate USERRA complaint 
data on the cases over which they have jurisdiction. We further noted 
in this report that, despite these enhancements to the USERRA database 
to allow the electronic transfer of complaint information between 
agencies, DOD only had visibility over those cases that originated with 
informal complaints to DOD. Even though DOD shares responsibility with 
DOL for USERRA complaints, DOD did not have access to all USERRA 
complaint data, and we recommended that DOL provide these data to DOD's 
ESGR.\14\ In response to this recommendation, in October 2007, DOL 
provided DOD with the ability to view and download aggregate 
information on all USERRA cases in its database.
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    \13\ GAO-06-60.
    \14\ GAO-07-259.
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    In addition, in October 2005, we reported that when a complaint is 
referred from DOL to OSC or DOJ, the agencies are unable to efficiently 
process complaints because they are forced to create, maintain, copy, 
and mail paper files to other DOL offices and to OSC and DOJ. To reduce 
administrative burden and improve oversight of USERRA complaints 
processing, we recommended that DOL develop a plan to reduce reliance 
on paper files and fully adopt the agency's automated complaint file 
system. DOL concurred with this recommendation and, as a result, is 
developing an electronic case record system, scheduled for completion 
in October 2008, that will allow all agencies assigned to the case an 
opportunity to review documents and add investigative notes or records.
    To effectively identify trends in issues facing service members, it 
is important in a segmented complaint resolution process that the 
complaint data generated by each of the Federal agencies be 
sufficiently comparable. In our February 2007 report, we noted that the 
complaint categories used by each of the four agencies could not be 
uniformly categorized to reveal trends in USERRA complaints. In 
particular, we noted that the complaint data collected by DOD and DOL, 
the two agencies that see the highest volume of cases, were not 
categorized in a way that is conducive to meaningful comparison. 
Specifically, we found that the two agencies use different categories 
to identify reservists' USERRA complaints for issues such as being 
refused job reinstatement, denied an appropriate pay rate, or being 
denied vacation time. To allow for the analysis of trends in reporting 
USERRA complaints, we recommended that DOD and DOL adopt uniform 
complaint categories in the future that would allow aggregate trend 
analysis to be performed across the databases. At the time of our 
report, both DOD and DOL agreed with this recommendation. Since that 
time, DOD and DOL have collaborated to identify common complaint 
categories that will allow both agencies to match similar USERRA 
complaints. According to officials from both DOD and DOL, these 
complaint categories are expected to be pilot tested in fiscal year 
2008.
    As reservists continue to be exposed to serious injury in 
operations in Iraq and Afghanistan, the ability to identify disability 
re-employment complaints becomes more critical. However, we noted in 
our February 2007 report that the four Federal agencies responsible for 
assisting service members with USERRA complaints could not 
systematically record and track disability-related complaints. 
Additionally, we found that these agencies do not distinguish 
disability-related complaints from other types of complaints for 
tracking and reporting purposes. For example, the service member must 
indicate that the case involves a disability for it to be classified as 
such, and these complaints may not be distinguishable from any other 
types of complaints because a single USERRA complaint may involve a 
number of issues that complicates the classification of the case by the 
agency. Further, disability-
related complaints are not identified using consistent and compatible 
complaint categories. DOD classifies USERRA disability-related 
complaints within three categories including medical benefits, job 
placement, and time limits for re-employment, while DOL uses one 
category, reasonable accommodation and retraining for disabled, to 
classify USERRA disability-related complaints. To provide agencies with 
better information about disability-related employment complaints, we 
recommended that DOL develop a system for recording and tracking these 
complaints and share it with the other agencies that implement USERRA. 
DOL concurred with this recommendation at the time of this report. 
According to DOL officials, DOL's USERRA database identifies disability 
claims, and the agency has recently provided DOD, OSC, and DOJ with 
access to this system.

                    INFORMATION REPORTED TO CONGRESS

    As previously mentioned, the Secretary of Labor is required to 
provide an annual report to Congress that includes information on the 
number of USERRA complaints reviewed by DOL, along with the number of 
complaints referred to DOJ or OSC. We noted in our February 2007 report 
that DOL's report to Congress does not include information on informal 
complaints filed with ESGR. Therefore the complaint data that DOL 
reported to Congress for fiscal years 2004 and 2005 did not include 80 
percent, or 9,975 of the 12,421 total informal and formal USERRA 
complaints filed by reservists during that period. Without data from 
ESGR, Congress has limited visibility over the full range of USERRA 
issues that reservists face following deployment. Further, without 
these data, Congress may lack the information for its oversight of 
reserve employment matters. To gain a full perspective of the number 
and nature of USERRA complaints filed by reservists in gaining re-
employment upon returning from active duty, we suggested that Congress 
consider amending the reporting requirement \15\ to require DOL to 
include data from DOD's ESGR in its annual report to Congress. In 
response to this matter for congressional consideration, Members of 
Congress are considering changes to the legislation.\16\
---------------------------------------------------------------------------
    \15\ 38 U.S.C. Sec. 4332.
    \16\ H.R. 1632 was proposed on March 21, 2007, and was referred to 
the Committee on Veterans' Affairs.
---------------------------------------------------------------------------
    In addition to DOL's report to Congress not reflecting informal 
USERRA complaints, we identified data limitations in our July 2007 
report that affected the quality of information reported to Congress 
that could adversely affect Congress's ability to assess how well 
Federal sector USERRA complaints are processed and whether changes are 
needed.\17\ DOL provides information in its annual report to Congress 
on the number and percentage of complaints opened by type of employer, 
issues raised--such as discrimination or refusal to reinstate--outcome, 
and total time to resolve. We found that the number of Federal sector 
complaints shown in DOL's USERRA database from February 8, 2005, 
through September 30, 2006, exceeded the number of unique claims it 
processed during the period of our review. Duplicate, reopened, and 
transferred complaints accounted for most of this difference. Also, in 
our review of a random sample of case files, we found:
---------------------------------------------------------------------------
    \17\ GAO-07-907.

     the dates recorded for case closure in DOL's USERRA 
database did not reflect the dates on the closure letters in 22 of 52 
sampled complaints and
     the closed code, which DOL uses to describe the outcomes 
of USERRA complaints (e.g., granted, settled, no merit, or withdrawn), 
was not sufficiently reliable for reporting specific outcomes of 
complaints.

    To ensure that accurate information on USERRA complaints' 
processing is available to DOL and to Congress, we recommended in our 
July 2007 report that the Secretary of Labor direct the Assistant 
Secretary of Veterans' Employment and Training to establish a plan of 
intended actions with target dates for implementing internal controls 
to ensure that DOL's USERRA database accurately reflects the number of 
unique USERRA complaints filed annually against Federal executive 
branch agencies, the dates those complaints were closed, and the 
outcomes of those complaints. In response to our recommendation, DOL 
issued a memo from the Assistant Secretary of Veterans' Employment and 
Training in July 2007 instructing investigators to ensure that the 
closed date entered into DOL's USERRA database match the date on the 
closure letter to the service member, and DOL conducted mandatory 
training on this memo beginning in August 2007. Further, DOL officials 
told us that DOL's fiscal year 2007 annual report will count reopened 
complaints as a single complaint if brought by the same individual, 
against the same employer, and on the same issue.

        NOTIFICATION OF RIGHTS TO REFERRAL AND INTERNAL REVIEWS

    We reported in July 2007 that in cases where service members sought 
assistance from DOL and the agency could not resolve the complaints, 
DOL did not consistently notify service members in writing of their 
right to have their unresolved complaints against Federal executive 
branch agencies referred to OSC or to bring their claims directly to 
the Merit Systems Protection Board.\18\ Specifically, our review of a 
random sample of complaint files showed that DOL failed to notify 
service members in writing in half of the unresolved complaints and 
notified others of only some of their options. In addition, we found 
that DOL's USERRA Operations Manual failed to provide clear guidance to 
its investigators on when to notify service members of their rights and 
the content of the notifications. In July 2007, we also reported that 
DOL has no internal process to routinely review investigators' 
determinations before claimants are notified of them and noted that 
this lack of review could have caused DOL's inconsistent practice of 
notifying service members for their rights to referral. We recommended 
that the Secretary of Labor direct the Assistant Secretary for 
Veterans' Employment and Training to: (1) require VETS's investigators 
to undergo mandatory training on the procedures to be followed 
concerning notification rights to referral, (2) incorporate into the 
formal update to DOL's USERRA Operations Manual guidance concerning the 
notification rights to referral, and (3) develop and implement an 
internal review mechanism for all unresolved complaints before service 
members are notified of determinations and complaints are closed.
---------------------------------------------------------------------------
    \18\ GAO-07-907.
---------------------------------------------------------------------------
    Since that time, DOL has taken the following actions:

     issued a memo in July 2007 from the Assistant Secretary 
for Veterans' Employment and Training to regional administrators, 
senior investigators, and directors concerning case closing procedure 
changes, including standard language to use to ensure that service 
members (Federal and non-Federal) are apprised of their rights;
     began conducting mandatory training on the memo in August 
2007;
     incorporated the policy changes into the revised Manual, 
which according to DOL officials is expected to be released in January 
2008; and
     according to DOL officials, beginning in January 2008, all 
claims are to be reviewed before the closure letter is sent to the 
claimant.

    These are positive steps. It is important for DOL to follow through 
with its plans to ensure that clear and uniform guidance is available 
to all involved in processing USERRA complaints.
    Mr. Chairman, Senator Enzi, and members of the committee, this 
concludes our remarks. We will be pleased to take questions at this 
time.

    The Chairman. Thank you, thank you very much.
    Let me just cover this quickly, because we want to keep 
moving along. I thank Senator Murkowski for joining with us 
here this morning, as well.
    Ms. Farrell, you pointed out the administrative 
complexity--I don't want to spend a great deal of time on this, 
as a matter of fact I'll spend very little time, maybe we'll 
come back for questions, but this is a chart that gives the 
summary of the points that you make about the bureaucratic 
duplicity that exists, and confusion in this. And even with 
this we have a requirement, that the Department of Labor is 
supposed to file a statutory report in February about the 
progress that they're making, and we still haven't even 
received that.
    But this is the rough conceptual reality of how this breaks 
out. But, I want to move beyond this. What I want to do is 
address the veterans, the half of the reservists, and the 
National Guard that have expressed dissatisfaction with the 
DOL.
    Now, what are the issues that they have expressed some 
dissatisfaction with the DOL? In this chart here, these are the 
lists of the areas where they've expressed some 
dissatisfaction: loss of seniority, loss of pensions, the loss 
of the upgrade in their skills, failure to reinstate health 
insurance, failure to get prompt reemployment. This is a list 
of the types of dissatisfactions.
    OK, so these are the numbers, and the types of 
dissatisfactions. Now, what do these service men and women do? 
They go to the Department of Labor, and this chart here will 
show you when they go to the Department of Labor, what is their 
degree of satisfaction.
    In 2004, we found there were 27 percent who were 
dissatisfied, now in 2006, it's up to 44 percent. These are the 
Department of Defense figures, as of October 17. So, the 
dissatisfaction is not going down, the number of complaints has 
stabilized, gone up somewhat. And that is something.
    Now, let's take the total number of service members that go 
to the Department of Labor, now, almost half of them are 
dissatisfied. So we ask ourselves, how many did not go there? 
And we find out that 77 percent did not seek assistance. These, 
again, are Department of Defense figures from the Status of 
Focus Survey. So, only about 23 percent actually sought 
assistance, of the ones that sought the assistance, almost 50 
percent of those are dissatisfied.
    Now, these are Department of Defense figures. And this is 
not a record that we should be very satisfied with. And we have 
to try and get it straight. Now, there's bureaucratic aspects 
of it that have been pointed out, there are other aspects, 
there's some very important progress that Mr. Bloch mentioned, 
particularly cases that they've done, there has been some noble 
help and assistance.
    But with this degree of dissatisfaction, the fact is that 
service men and women are not using the system, and they've got 
problems, and the ones that do use the system have the problem 
with the system. What in the world are we going to try to do 
about that?
    Mr. Ciccolella.
    Mr. Ciccolella. Thank you, Senator.
    What we're trying to do, is to brief every service member 
before they go on their deployments, and we brief them at 
demobilization. We do that with the Defense Department----
    The Chairman. I'm going to ask you, just very quickly, 
because my time's going to be up, I'm going to ask each one of 
you to give about a 1-minute reaction to this, so you can be 
thinking about it. We're voting at 11:30 and we're going to 
want to move on to the next panel.
    Mr. Ciccolella. The most important thing about this law--
this is a complicated law--the most important thing about the 
law is to explain to service members where they can go to get 
assistance, and that's what we try to do. We've made the law 
much easier to understand with our regulations, heretofore, 
there were no regulations on this law. It's not an easy law to 
understand, and where there are problems with USERRA, it is 
generally because the law is not understood.
    And we brought up the issue of deployments, the deployments 
are much longer, it's not like it was in 1994 when the law came 
out, where service members were off for their weekend duty. 
These lengthy deployments create situations that are much more 
complex.
    You noted on your list of their complaints, the types of 
complaints that you're getting--and you can see the 
complexity--and Senator, it's not only the complexity. But it's 
the multitude of issues. You don't have USERRA cases now with 
just one issue.
    So, in many cases, it is that the employer does not 
understand the law, it's not the egregious, ``We're not going 
to hire you,'' or ``You're fired.'' And, it does take time to 
work through those issues, especially health care restoration, 
pension restoration, and a lot of times it's status, you know, 
an individual leaves, comes back, leaves again, and then when 
they come back, they're not immediately put back in the exact 
same position or, as the law says, it's got an escalator 
principle that underlies it, they're supposed to be put in the 
position they would have had, but for the military experience, 
or service. Which puts the employer in a situation where they 
need to bring that individual up to speed. The intent of 
Congress was that service members should not be penalized for 
their military service.
    The Chairman. Please, Dr. Sumner.
    Mr. Sumner. Sir, from our viewpoint on the ESGR side, we're 
the ones who try to provide that informal mediation process to 
those Guard and Reserve members, before it ever gets to this 
level.
    The Chairman. Sure.
    Mr. Sumner. And right now, over the last couple of years, 
we have had--just for information only--over 15,000 cases that 
have come to our office, either by telephone, through our e-
mail or through our 1-800 call center support. And just from 
that alone, we've been working those cases, as of last year and 
the 2006 issue, for example, of all the cases which numbered 
into 10,000-plus cases, only 1 percent were those we could not 
resolve at the community level between our volunteers, our paid 
staff--who are located at every State and territory--working 
with those Guard or Reserve units that are located with them, 
as well as the businesses that are with them, and that 1 
percent is what we ended up having to follow-on to the 
Department of Labor. But our effort, again, is focused solely 
on being the ones that can fix their problems immediately, to 
the satisfaction of both parties, as we provide that informal 
mediation process.
    The Chairman. Put up the organizational chart. As I 
understand it, your agency does about 80 percent of the USERRA 
cases?
    Mr. Sumner. Yes, sir.
    The Chairman. And the Department of Labor is 20 percent, 
you do the ones with volunteers, and do it effectively.
    Mr. Sumner. Yes, sir.
    The Chairman. But it's the other part, the 20 percent that 
have caused a lot of problems, where there were a lot of 
abuses, which is where the problem is.
    Senator Isakson.
    Oh, excuse me, quickly, Mr. Bloch and Ms. Farrell, if you'd 
just comment quickly.
    Mr. Bloch. Thank you, Senator. Well, I would respond by 
quoting another famous Teddy, Teddy Roosevelt, who said, 
``Speak softly, but carry a big stick.'' We do. We speak a lot 
to employers in the Federal Government, but when they don't 
cooperate, we have the big stick of prosecution and we use it 
to good effect. But, we also have the stick of public comment. 
We do press releases, we frequently interact with the media on 
these issues to bring awareness to these service members and 
Senator, I think it is a travesty that people feel deterred 
from going to seek relief. That is a terrible thing, we need to 
send a better message, we're trying to do that through 
prosecution, education and outreach, and media.
    The Chairman. Thank you.
    Ms. Farrell.
    Ms. Farrell. Senator, it was in 2005 that GAO reported 
that--about 72 percent of the Reservists that DOD had surveyed 
in their ``Status of Forces'' survey said that they had not 
sought assistance for these problems, and it was in response to 
our recommendation that you need to understand why. And, DOD 
did take action to include similar questions in its 2006 
survey. But, it's not just collecting the information, but it's 
analyzing it and determining why they didn't seek the problems, 
in order to develop some type of action plan to move forward.
    The Chairman. Good.
    Senator Isakson.
    Senator Isakson. First of all, Mr. Ciccolella, I understand 
from a little research that you received both the Bronze Star 
and the Silver Star--the Bronze Star for valor in Vietnam, I 
wanted to make sure everybody knew that, and thank you for your 
service.
    Mr. Ciccolella. Thank you, sir.
    Senator Isakson. And having somebody like you with that 
experience in this job means a lot to me. I'm just wondering, 
in your Department, how many of your fellow workers are 
veterans?
    Mr. Ciccolella. We have about 240 individuals in the 
Veterans Employment Training Service. About 95 percent are 
veterans.
    Senator Isakson. That's terrific.
    Second, and I may be wrong on this, but perspective-wise--
of the 77 percent that didn't file an action, I would assume a 
fair number of those didn't file, because whatever their 
initial inquiry was, was dealt with. Is that correct, or 
incorrect?
    Mr. Ciccolella. Most USERRA cases, Senator, are resolved 
very quickly, they're resolved on the phone. Even those that 
are referred to us by ESGR, we can usually resolve them very 
quickly. Most of them are a result of an employer not 
understanding the law.
    For those that are not resolved, we think we're doing much 
better in terms of the rate, the complaint rate. For example, 
in the first Gulf War, 265,000 service members were activated, 
Reserve and Guardsman, and they were activated for shorter 
periods of time than these service members, because now the 
tours are a year long.
    Now, we've activated over 600,000, those were Guard and 
Reservist. In the first Gulf War, for every returning 
reservist, for every 54 returning reservists, we were doing an 
investigation, a Federal investigation. Now that's 1 out of 
about every 80. Now, that's better, but it's not good enough. 
Any time that a service member comes back, they don't get their 
job back, or they're not properly restored to their position, 
and that's usually what happens, it's not the egregious sort of 
thing--that's of concern to us.
    We're veterans, out in the field. These veterans are 4 
year, 10 year, 20 year veterans of the service. They deal with 
these issues every single day. They not only deal with USERRA, 
but they also work with the workforce system, and they work 
with the military on a day-to-day basis, to make sure that 
service members in the real terms, put these individuals 
through transition assistance programs. They also do 
mobilization and demobilization briefings, so they're 
imminently well-qualified to deal with the service member and 
find out what the complaint is, and also deal with the 
employers.
    In cases where service members don't pursue a case, 
sometimes they don't want to pursue a case, a lot of times they 
want to change jobs. When a Guardsman or a Reservist goes over 
to Iraq or Afghanistan, and they're a squad leader over there, 
and they have been working at the Garden Center at K-Mart, and 
they come back, they've got skills that vastly overwhelm the 
job that they had. So, they may want to change jobs.
    That's another reason why we're very well-suited, because 
we can deal with that issue, and also help the service member 
get a job, and that's what happens in a lot of cases.
    Senator Isakson. Well, that being the case, then, I think 
the representation of 77 percent and then 46 percent, really 
the 23 percent that file the cases, 46 percent of them are 
dissatisfied, which is 1 out of 10, rather than 46 percent of 
all USERRA cases, is that--that's the way it would look to me, 
from that standpoint.
    Mr. Ciccolella. Yes, sir, and the other thing is that these 
surveys are very, very important. And, as Brenda has talked 
about, you really need to do some research on the surveys, and 
look at, how many people responded on the survey, what was the 
response rate? And also, do the detailed research to find out 
why they didn't pursue the cases, but you're absolutely 
correct, sir.
    Senator Isakson. And on that line, one quick question for 
Dr. Sumner and then I'll move on, I know we're in a hurry--you 
all mediate a fair number of these, is that correct?
    Mr. Sumner. That's correct, sir.
    Senator Isakson. Of the ones that you are unsuccessful at 
mediating, is there a more common reason, is there something 
out there that you find in these mediations where we do have a 
problem that recurs that's hard to mediate?
    Mr. Sumner. It's primarily, the No. 1 issue of the codes 
that we receive, primarily just involve around the pay and the 
position that these individuals come back to. So, that's----
    Senator Isakson. Something less than what they left with, 
is that----
    Mr. Sumner. Less, some other position, the seniority, one 
of those that you see on the chart that the Senator showed 
earlier, Mr. Chairman there.
    Senator Isakson. That's helpful, thank you.
    Thank you, Mr. Chairman.
    The Chairman. Senator Reed.

                       Statement of Senator Reed

    Senator Reed. Well, thank you, Mr. Chairman.
    And thank you, gentlemen for your testimony, and Ms. 
Farrell.
    This is a very important hearing today for many reasons. 
But one reason is, just this morning there was a report 
released indicating that one out of four homeless Americans are 
veterans, which is a shocking statistic, and one that we should 
really be troubled by. And, frankly, if you can't get a job, 
there's a pretty good chance you'll be homeless, so this is all 
connected. And, I think what you're doing to try to inform 
veterans and protect veterans in the workplace is critical.
    And Doctor, I have just one question because time is moving 
forward--there's great effort to inform the veterans of their 
rights, responsibilities under the law--is there a similar, in 
your view, effort with employers, that they are notified 
officially and directly that they have the obligation.
    Mr. Sumner. Oh, absolutely, Senator, that's one of our key 
mission statements, if you will, is the fact that the employer 
support of Guard and Reserves main focus is to educate and to 
inform and to sustain that knowledge of the USERRA, with the 
employers that are out there. And that is really one of the key 
support efforts of our over 4,500 volunteers that are located 
in every State and territory.
    Senator Reed. Well, you have a wonderful organization 
around, Ernie Almonte, you probably know is----
    Mr. Sumner. Yes, in fact, I just spoke to him yesterday.
    Senator Reed. He's tremendously talented, he's our general 
auditor, also--but, you know, as we personally brief a National 
Guardsman or Reservist who is leaving active duty, do we 
directly and personally communicate with their employer, 
saying, ``So-and-so is coming back, and these are your rights 
and responsibilities,'' or is it, as I think, a volunteer 
effort where you're there too, as a resource for the employers 
in the State--if there's a problem--do we have a systematic 
way, where we send a note?
    Mr. Sumner. We do not do the notification, either pre-
deployment or postdeployment with those units, and the 
employers of those Guard and Reservists. What we do is, through 
our informal process of discussions, our ability to speak with 
the various employers through the organizational activities 
that we have--if we know of a unit that is scheduled to come 
back, we will share that information, but it's not in our 
charter to be the ones that do any kind of official 
notification that that individual is coming back.
    Senator Reed. Is it anyone's charter to do that? The 
Colonel?
    Mr. Ciccolella. Sir, we reach out to employers on a day-to-
day basis in an ad hoc sort of way. I think your question was 
for the--that returning Reservist or Guardsman, so we talk to 
his or her employer? No, sir. It would be very difficult to do 
that.
    Senator Reed. It may be. But, it just strikes me as that 
you've got an employer that has a vague understanding that he 
has some obligation under the law.
    Mr. Ciccolella. Yes.
    Senator Reed. And I don't think, they're trying to be--in 
most cases--defiant of the law, they want to cooperate. And 
then you have a soldier coming back who's trying to explain to 
the employer what the law--what he thinks the law is. And you 
get into this kind of unsatisfied debate back and forth, 
technically, probably above everybody's--it would be above 
mine, frankly--and then you get into this situation of, well, 
they go, they--sometimes they'll call your office, sometimes 
they won't call, they'll just be frustrated, ESGR sort of steps 
in. I'm just wondering, if it might be useful to--since we've 
got a lot of information these days--if we do, in fact, 
formally notify employers.
    Mr. Ciccolella. Well, it would be very useful. The most 
important thing with USERRA issues, is that there's 
communication between the employee and the employer, because 
that's the relationship that is at stake. It's so important 
that when we go in and investigate a situation, we maintain 
that relationship, between the employee and the employer.
    Most employers understand the law. They may not understand 
all of the technical aspects--how to exactly restore the 
pension or entitlement or health coverage benefit--and most 
issues are because of misunderstandings, so we ought to take a 
look at what you just said.
    Senator Reed. Thank you very much.
    Thank you, Ms. Farrell, thank you, Mr. Bloch. Thank you.
    The Chairman. Senator Murkowski.

                     Statement of Senator Murkowski

    Senator Murkowski. Thank you, Mr. Chairman. I really 
appreciate the hearing this morning, the testimony from the 
distinguished panel. I was up in Alaska earlier in the year, 
meeting with veterans from around the State and had a very, 
very interesting discussion with some vets at a vet center. 
Primarily, they had come back from Iraq. I had a conversation 
with a young man, probably early twenties, who had been a 
mechanic over there, very skilled in his area. He came back and 
was looking for a job. He ultimately ended up with a position 
as a night stocker at one of the Big Box stores. The things 
that he said were very troubling. They were all the more 
troubling because other young men who were there said the same 
thing.
    One of them told his employer he had just come back from 
Iraq. His employer made some comment to the effect of, he 
thinks that everybody who's coming back is suffering from PTSD. 
In the words of another young man, ``They think that we're all 
ballistic, and when are we going to go off.'' The vets I met 
were all concerned about discrimination against our returning 
veterans when they come back. We know that USERRA prohibits 
discrimination in employment on the grounds of military 
service, but I listen to those stories, and am greatly, greatly 
concerned. And I know that it makes the job of each and every 
one of you just that much more difficult. But, I do believe 
that we are dealing with a level of discrimination out there by 
employers, and how we address that is going to be very, very 
key to demonstrating our support for those who have been 
serving us.
    I want to ask about a specific case in Alaska, in which my 
constituent has been waiting for 7 years to have his USERRA 
matter resolved.
    This is an individual who had a position with Indian Health 
Service. He left it in 1995 to go on active duty with the 
Alaska National Guard. In 2000 he leaves active duty, seeks 
reinstatement to his position, but the position no longer 
exists, because the facility where he was working, at Indian 
Health Service, has transferred this to tribal control, under 
the Indian Self-Determination Act.
    First, the constituent is told he doesn't have rights under 
USERRA, then he appeals, years go by, and nothing is happening.
    When I came to the Senate, we intervened, picked this up, 
and persuaded the Labor Department to reopen the case. Long and 
short of the story is this gentleman now has a job. But, he has 
a job in the community of Kodiak. Which is--if you're not 
familiar with Alaska--it's an island, a large island in the 
Gulf of Alaska. His family lives in Palmer, which is an hour 
north of Anchorage. In order for him to see his family, he 
flies an hour and a half on a commercial jet to get there. This 
is the solution to his USERRA complaint.
    This case is still open. The complaint has not yet been 
fully resolved, and we're 7 years down the road. This is not a 
service, this is a process that isn't working.
    So, I would like to ask, on the record here, Mr. 
Ciccolella. I do understand that you are familiar with the 
case. I'd like to know how we can--how we can allow for a 
system to let an individual, kind of, fall through the cracks 
like this?
    I'd also like to ask you, Mr. Bloch, if you were familiar 
with it, if the case has been referred from the Department of 
Labor to you, yet, and whether or not you've got jurisdiction 
over this to do anything. I want to be able to tell my 
constituent that, ``Yeah, the process works. You've been 
hanging for 7 years, but we can find some resolve to this.''
    So, first Mr. Ciccolella, and then Mr. Bloch.
    Mr. Ciccolella. Yes, ma'am.
    This was a case that is very unfortunate. The individual 
came to the Department of Labor and put their complaint in. The 
Department of Labor employee who processed the case had 
indicated that the case was referred to the Office of Special 
Counsel, and that was not the case. That employee has since 
departed the Department of Labor.
    The case, as far as I know, lay dormant for several years. 
In 2005, we picked the case back up, recognizing the errors 
that had been made. We have worked to--with the Federal 
agency--to assist in getting the position back. As you've said, 
that's still not satisfactory with the individual. There are 
other aspects of this case, Senator, that involve the financial 
settlement. The case is very, very likely to be referred to the 
Office of Special Counsel, that is being prepared, right now, 
as we speak----
    Senator Murkowski. Can I interrupt?
    Mr. Ciccolella. Yes, please.
    Senator Murkowski. To ask a question on that----
    Mr. Ciccolella. Yes.
    Senator Murkowski. If, in fact, it had been indicated some 
years ago that it was being referred to the Office of Special 
Counsel, why has it taken a period of years, then, to actually 
make that referral?
    Mr. Ciccolella. The information that has come to me is that 
we were asked to work the case by the individual, and we have 
done so. We are now in the process of referring the case, it 
will be referred to the Office of Special Counsel very, very 
shortly.
    It is an open case, it may involve the Special Counsel 
litigating that case with the Merit Systems Protection Board. 
Going beyond that information, would probably be inappropriate, 
because it could prejudice the outcome of the case. On the 
other hand, we'd be happy to sit down with you or your staff in 
a closed session and go over all of the details in the case.
    Senator Murkowski. I would appreciate that, but more 
importantly, I think my constituent wants a resolve to this, 
and I would like to think that we would all think that that is 
in the best interest.
    It concerns me that when you have a situation, one 
unfortunate situation--as you refer to it--the word gets out. 
Don't bother going, because they're not going to be able to do 
anything. There's a process there that isn't working if we're 
not getting the results, and I think that that's what this case 
demonstrates. I hope that this is very, very quickly going to 
get to the Office of Special Counsel and we're going to see a 
very immediate resolve to it.
    Mr. Ciccolella. I can assure you that it's going to be 
expedited, too, it's already in-process and going to the 
Special Counsel.
    And I understand your concerns, Senator. Most USERRA cases 
don't follow this path.
    Senator Murkowski. Mr. Bloch, did you want to add anything?
    Mr. Bloch. Well, thank you, Senator. I can't say anything 
regarding what Mr. Ciccolella has said, he knows more about the 
case than I do, we've never actually had any jurisdiction over 
it.
    However, about 6 months to a year ago--I can't remember the 
exact timeframe--I began getting e-mails from this individual, 
crying for help. And so I went to my Deputy and the head of the 
USERRA unit, and I said, ``What can we do? This sounds drastic, 
a terrible situation.'' And so, we began to talk with Labor, 
and interact with them and, to see if we could get the case, 
and we were willing to take it, whatever timeframe it may have 
been--6 months ago, a year ago, I can't remember.
    Since that time, we've heard a fair amount from the 
complainant about the situation. I read these e-mails, very 
concerned, and so we were told--I should put it this way: My 
understanding is that our office, in communicating with Labor 
and Vets office, was told in August we would be getting the 
case in a week, but we've never received it.
    It is my understanding that there was some discussion 
between Vets investigator and the complainant for about a year, 
implying that the individual had received a monetary 
settlement, and it was very large, and it would be forthcoming 
and it just never was.
    And then, more recently was told a slightly lesser figure, 
although still a fairly large amount. Again, nothing happened. 
The concern is that there's never an end to the process. What 
we try to do is bring things to a head quickly for the service 
member, we tell the employer, ``Here's your obligations, here's 
how we view this case, what are you going to do now?'' And if 
we say, ``Well, we'll get back to you,'' we just go ahead and 
file. And then that gets their attention. And that's how we do 
things.
    Senator Murkowski. Well, Mr. Chairman, whether it is one 
individual, or whether it's the 25, 23 percent--it's too many.
    The Chairman. Well, we thank you, our committee will work 
with you and the reasons you've outlined, and we appreciate 
your responses, and we'll probably have some follow up 
questions if the Senators want to do that, we'll be glad to 
join with them.
    I want to thank our panel, very much. We might give some 
other additional kinds of questions, but we thank all of you 
very much for being here.
    And we'll move to our next panel, if we could, please.
    Lieutenant General Dennis McCarthy. Dennis McCarthy is the 
National Executive Director of the Reserve Officers 
Association. He is currently the Commander of Marine Forces 
North, and previously served as Lieutenant General for the 
Reserve Affairs Division Headquarters U.S. Marine Corps. 
Lieutenant General McCarthy served in Vietnam, and is a 
graduate of the University of Dayton.
    Next, Lieutenant Colonel Steve Duarte. Steve Duarte is a 
retired Marine Reservist. Lieutenant Colonel Duarte was laid 
off by his employer, Agilent Technology, shortly after 
returning from his tour in Kuwait and Iraq. Although he filed 
complaints, the Departments of Defense and Labor told him that 
his case lacked merit. Undeterred, Lieutenant Colonel Duarte 
hired his own commanding officer to represent him and 
ultimately won his case in court.
    Major Tammy Duckworth is a National Guard Major. Since 
2006, she has served as the Director of Illinois Department of 
Veterans' Affairs. Major Duckworth is a veteran of the Iraq 
War, where she was a helicopter pilot. In 2004, Major 
Duckworth's helicopter was struck by a rocket-propelled 
grenade. She's received the Purple Heart, and she also received 
the Air Medal, and Army Commendation Medal. Director Duckworth 
has a B.A. in Political Science from the University of Hawaii, 
a Master's from George Washington University's Elliot School of 
International Affairs, and she is currently working on a Ph.D. 
in political science at Northern Illinois University.
    Finally, Richard Halbrook, Executive Vice President of 
Administration and Human Resources for Dollar Thrift Automotive 
Group. Dollar Thrift was one of 15 employers honored with the 
2007 Secretary of Defense Employer Support Freedom Award for 
support of National Guard and Reserve employees. With over 25 
years of experience in human resources, Mr. Halbrook currently 
directs the Human Resources, Communications, and Business 
Strategy function at DTG.
    We'll hear from Major Duckworth, please. Thank you very 
much.

 STATEMENT OF MAJOR LADDA TAMMY DUCKWORTH, DIRECTOR, ILLINOIS 
       DEPARTMENT OF VERTERANS' AFFAIRS, SPRINGFIELD, IL

    Major Duckworth. Thank you, Senator, members of the 
committee. I don't know if you remember, but you did visit me 
at Walter Reed, I still proudly display my Sox hat you gave 
me--it does raise eyebrows in Cubs territory, but it's still 
proudly displayed. You gave that to me late one night on one of 
your trips to Walter Reed.
    It's such a pleasure to be here. I'd like to have my spoken 
comments added to the record, because I think I'd like to focus 
more on what we're doing in the State of Illinois, and less on 
the punitive measures as the previous panel spoke about.
    First and foremost, we need to talk about the quality of 
the men and women who have served in uniform. These are people 
who are the best employees any employer could ever hope to 
have. They are people who have guaranteed the quality of their 
work with their lives. And with the exception of our brothers 
and sisters in the police and fire fighting forces, I doubt 
that any other employee can write that on their resume.
    Let me give you an example. My crew chief, my mechanic, 
when he fixed my helicopter, and handed me the key and said, 
``Here, go fly your mission with this,'' he guaranteed to me 
that he checked every oil level, he twisted every nut, he 
checked every safety wire, with his life because he climbed 
into the back of that helicopter, and went out on those combat 
missions with me. I doubt that there's many jobs out there that 
you can write in your classified ad, ``Must be willing to 
guarantee quality of work with life.'' And that's what all 
service members do every single day.
    With that in mind, the State of Illinois has recognized 
that many of our returning service members teeter, teeter on 
the edge of financial disaster, of homelessness, of divorce, 
based on how quickly they can gain stable, steady employment.
    So, what we've done is addressed the central question and I 
believe this is the same question the committee is facing, 
which is how do we help our warriors make the transition to 
employment and the pursuit of the American dream, after they 
have defended our freedoms?
    This must be a combination of State and Federal efforts. 
One of the things that the panel previous to mine has not 
addressed are those State efforts. In Illinois, we have come up 
with several incentives for employers. We are the first State 
in the Nation to provide a tax incentive. We give each employer 
$600 per veteran that they hire who is a veteran of Iraqi 
Freedom, Enduring Freedom and Desert Storm. So, multiply that 
by the number of employees that you hire, we give them $600 per 
employee. And we hope that that will at least offset the cost 
of health insurance, or at least get employers, especially in 
small and mid-sized companies, and rural communities, to take a 
second look at these employees.
    We also provide the Illinois veterans grant. This is an 
educational program that provides 128 credit hours at any State 
institution of higher learning, whether it is a technical 
school where they want to get a truck driver license, a 
commercial truck driver license, or a Ph.D. And when used in 
conjunction with the Federal G.I. bill, this allows an employee 
to, perhaps, take an apprenticeship position with an employer, 
or for a potential employer to look and say, ``OK, we can bring 
this person on board, the State will pay for his continuing 
education for him to gain new skills toward his employment, and 
the G.I. bill will supplement his living expenses.'' And that 
allows these great men and women to develop additional skills 
that will help them move up in their career fields and perhaps 
get slightly better employment than working as a night stocker 
at a Big Box department store.
    The other thing that we do is also recognize in the State 
that outreach is a major issue. So, in Illinois, Governor 
Blagojevich has now increased a number of our Veterans' Service 
Offices, we have 73 of them in 51 field offices, so our 
Veterans' Service Offices will actually go to a veteran's home 
and sit at his kitchen table and talk to him about his USERRA 
rights, talk to him about his Federal rights, and also all of 
the State benefits. Unfortunately, one of the downfalls that we 
have, is that there's no communication between the Federal and 
the State. DOD and USVA will not tell me when someone is coming 
home, so that I can send a service officer to help him.
    Oftentimes, the first time I hear about a veteran who's 
come home to the State of Illinois is when he gets in trouble. 
He's homeless, and the homeless shelter calls us, or he has 
been self-medicating, he gets a DUI, and now he's in trouble 
with the law, and the local State troopers give us a call, 
``Hey, we have another one of yours, come help him.'' We'd like 
to intervene before he gets into trouble, but there is no 
agreement, in fact, DOD and USVA have been negotiating an 
information-sharing agreement for the past 3 years, and they 
can't come to an agreement between two Federal agencies, let 
alone, use us.
    I have a budget of $105 million, I have more than 1,000 
employees. I am here to help. I ask you to consider urging the 
Federal Government, USERRA, all of these organizations to look 
to the States and put us to work to help us reach our veterans.
    Thank you, sir, and I'm open to your questions.
    [The prepared statement of Major Duckworth follows:]

           Prepared Statement of Major Ladda Tammy Duckworth

    Mr. Chairman, members of the committee, it is a pleasure to testify 
before you today on behalf of Illinois Governor Rod Blagojevich and the 
Illinois Department of Veterans Affairs (IDVA). This committee is to be 
commended for drawing attention to the issues and challenges that our 
veterans face when returning to the civilian workforce.
    In Illinois, as in many parts of the Nation, we have found that 
employment, healthcare and housing are the top concerns facing our 
Veterans today. This is especially true of our younger Veterans 
returning home from service in Iraq and Afghanistan. These young 
Veterans often come home after a tour on active duty military service 
or as a deployed national Guardsman or Reservist and find themselves 
unable to re-integrate into society because of a lack of jobs or 
affordable housing. In 2007 alone, the State of Illinois has launched 
nearly $50 million in Sate programs to help our Veterans find 
employment, obtain mortgages and access state-provided healthcare. 
Unfortunately, due to an unwillingness of the Federal VA and DOD to 
share information with individual States, many of our returning 
Veterans never find out about our State programs until they are in 
trouble. Often, and tragically, the first time my agency finds out 
about a returning service member is when we get a call from a homeless 
shelter or the local jail. We would like to reach them before they 
start self-medicating for Post Traumatic Stress Disorder (PTSD) with 
alcohol, or before they lose their homes. However, without help from 
the Federal USDVA or DOD, this is a major challenge for States to 
overcome.
    In Illinois, we are committed to providing our veterans with the 
best possible services and resources available to make a smooth 
transition into employment. For instance, the Illinois Department of 
Employment Security launched six Veterans Job fairs last year to 
connect employers with veterans throughout the State. Participating 
organizations included the American Legion and AMVETS. We have also 
designated November 2007 as ``Hire a Vet Month,'' and are currently 
conducting statewide Veterans job fairs throughout the State. Finally, 
Illinois is also the only State in the Nation to offer a $600 per 
employee State income tax credit to employers in exchange for hiring 
Veterans of Desert Storm, Operation Iraqi Freedom and Operation 
Enduring Freedom.
    To help Veterans prepare and develop new job skills, Illinois has 
the Illinois Veterans grant, which grants each qualifying Veteran 128 
credit hours (tuition and fees) at any State of Illinois institution of 
higher education. Veterans can use this in conjunction with the Federal 
GI Bill, allowing them to attend school for degrees ranging from 
technical training programs like Commercial Truck Driver to Ph.D. 
studies. Unlike the GI Bill, the Illinois Veterans Grant does not 
expire and can be used for additional programs throughout the Veteran's 
lifetime. This combination makes for an attractive package for future 
employers who know that the Veteran employee will be able to take a 
lower-paying training position while having his retraining paid for by 
the State and his living expenses supplemented by the GI Bill.
    The U.S. Department of Labor, through Assistant Secretary for 
Veterans Employment & Training Ciccolella, implemented the ``2007 
National Hire VetsFirst Job Fairs,'' requesting that each State conduct 
a Statewide Veterans Job Fair during the month of November. This year, 
Illinois has expanded its job fair to 10 sites throughout the State 
with 345 employers currently registered to participate. The job fair 
will also include the ``First in the Nation'' Virtual Job Fair in 
partnership with Illinois Department of Employment Security (IES), the 
Illinois Department of Commerce and Economic Opportunity (DCEO), and 
Illinois workNet, an online employment tool for veterans. I am pleased 
to report that at the national level, our report to the USDOL-VETS was 
well received.
    In addition, our Illinois Department of Commerce and Economic 
Opportunity strongly supports the Jobs for Veterans Act and encourages 
eligible veterans to participate in all appropriate training and 
assistance programs managed by the department's Bureau of Workforce 
Development. Illinois is divided into 26 Local Workforce Investment 
Areas (LWIA). Services are provided through what are currently referred 
to as One-Stop Centers and their affiliate sites in each of these 
LWIAs. Our Bureau of Workforce Development works closely with our 
Department of Employment Security, a WIA program partner, and their 
Veterans' Employment and Training Staff (VETS) at the local One-Stop 
Centers to provide comprehensive services to veterans seeking 
employment.
    According to the 2006 annual Current Population Survey (CPS) 
special report on Veterans' labor force status, 804,000 people aged 20 
and over in Illinois were civilian veterans, or 9 percent of the 
State's civilian population. Of these civilian veterans, 431,000 were 
in the labor force (7 percent of the total labor force) and 410,000 
were employed. Thus, it was estimated that 21,000 were unemployed for a 
rate of 4.9 percent. The Illinois unemployment rate for veterans (4.9 
percent) was higher than that for nonveterans (4.1 percent).*
---------------------------------------------------------------------------
    * The national unemployment rate for veterans (3.8 percent) was 
lower than the unemployment rate for nonveterans (4.1 percent).
---------------------------------------------------------------------------
    To determine why veterans in the 20-24 age range have a higher 
unemployment rate than non-veterans in the same age group, our IDES 
undertook an additional special study last year, ``An Examination of 
the High Unemployment Rate for Young Veterans: Based on the Labor 
Market Experience of Illinois Veterans Discharged from 2001-2006.'' The 
available data supports the hypothesis that the potential for 
unemployment of a veteran would be at its highest within months after 
discharge. Among the study's results:

     The largest proportion of military discharges is in the 
20-24 age group. Of the Illinois veterans that were discharged in 2001-
2005, 45.9 percent were between 20 and 24 as of the last day of the 
discharge year. However, only 2.1 percent of the national veteran labor 
force falls in the 20-24 age range.
     Of those IL veterans discharged in 2001-2005, 31.7 percent 
fall into the 25-34 age group, compared to 12.0 percent nationally.
     Veterans exiting from the Reserve/Guard have a lower 
proportion filing new Unemployment Insurance claims than those veterans 
who are exiting from the regular services, holding age group constant. 
Thus, the Reserve/Guard discharges demonstrate the easiest transition 
to civilian employment after military discharge, most likely because of 
their prior employment history.
     For many of the veterans discharged from the regular 
services, enlistment may have been their first full-time job, their 
first time away from home, and they are now eligible for unemployment 
compensation and education benefits. The availability of education 
benefits decreases the likelihood that veterans will transition 
directly to work, particularly with regard to the 20-24 age group.
     After a discharged veteran finds stable employment, the 
probability is high that they will remain employed as long as they 
continue to be part of the labor force.

    As the Director of the Illinois Department of Veterans Affairs, I 
see every day the struggles of families as they help their loved ones 
drive long distances to a health care facility for the necessary 
treatments and therapies of wounded veterans, including treatments for 
physical, mental and emotional injuries. These struggles impact 
spouses, parents and children. And, given the intermittent and often 
lengthy treatment schedules, the needs of veterans must be recognized 
and understood by employers. In my position, I also see the case work 
that is required to help our Veterans find jobs and training that may 
be required if one cannot return to their prior employment.
    More personally, as an injured Veteran I've seen first hand what it 
is like to try to re-integrate after a deployment and service-connected 
injury. Since I am older and my husband and I own our own home, we only 
had a dual challenge of finding jobs while trying to receive care in 
our VA system. In particular, I want to highlight the stresses of 
traveling to get care as well as the impacts that these stresses have 
on the families of Veterans. I can attest to the hardship on my family 
and employer. I live in suburban Chicago. To access my VA hospital 
basically takes an entire day off from work because of the long drive 
times as well as the common experience of long waiting times to see 
medical professionals, obtain pharmacy services, etc. Now, I'm the 
Director of a State Veteran's agency. I would not be surprised if I 
routinely receive more conscientious service than most. I can only 
imagine the challenges faced by a 20-year-old Veteran, trying to get 
time off from work to attend day-long appointments at his VA medical 
clinic. In fact, since the USDVA is so overburdened, many Veterans, 
especially in rural areas, find that it can take multiple days to 
obtain a single doctor's visit. One such example is the Danville VA 
hospital in central Illinois that routinely denies Veterans access to 
their local physicians for procedures as simple as a chest x-ray. The 
veteran is instead forced to take once-a-day shuttles to pick up points 
for a second shuttle. If one misses any of the shuttles, one must stay 
overnight, out of ones' own pocket, to catch the next day's shuttle. 
When they finally reach Danville, it is a common experience for a 
Veteran to wait 4 hours to see a medical professional, followed by 
another 3-4 hour wait for pharmacy services. In the end, it is not 
unheard of for a Veteran to spend 3 or 4 nights away from home for a 
single doctor's visit.
    Despite our progress, we clearly must work harder as a State and a 
Nation to better re-employee our Veterans. I recommend the committee to 
consider:

    (1) Helping establish an information sharing agreement between 
States and Federal agencies so the States and territories can be 
notified when a Veteran has left Federal service (either through the 
DOD or the VA medical system) and is returning home. This will allow 
States to immediately make contact with the Veteran to extend services 
ranging from employment to housing, medical care, and advocacy services 
in filing USDVA compensation claims.
    (2) Provide legislation that would protect Veterans' right to take 
time off from work to obtain medical care resulting from their military 
service.
    (3) Monitor the USDVA re-employment and Vocational Rehabilitation 
program for consistency across the Nation. These awards for educational 
and vocational rehabilitation are subjective and vary disparately 
across the Nation. A Veteran's right to such funding should not be 
dependent on where he lives.

    I commend this panel for asking these very important questions 
about accommodations for our veterans, and your efforts to make sure 
our Veterans are able to return to work and have the information they 
need to do so. We should all demand that our Veterans have access to 
care that is commensurate to their dedication to our country.
    I would be happy to take any questions.

    The Chairman. Excellent suggestions.
    Lieutenant General McCarthy.

 STATEMENT OF LIEUTENANT GENERAL DENNIS M. McCARTHY, NATIONAL 
 EXECUTIVE DIRECTOR, RESERVE OFFICERS ASSOCIATION, WASHINGTON, 
                              DC.

    Lt. General McCarthy. I thank you, Mr. Chairman, and 
Senator Isakson, members of the committee, for the opportunity 
to testify. I'm honored to be here with Major Duckworth and 
Lieutenant Colonel Duarte.
    I couldn't be more proud of the people who are serving 
today and in particular the, as you say, over 600,000 citizen-
warriors, who, from time to time, leave their civilian 
employment to wear the uniform of their Nation. For most of 
those great Americans their service has been made possible by 
the support that they receive from their employers. The 
Nation's employers, I think, have been shown to have done a 
tremendous job over the past 5 years. Most of them have been 
incredibly supportive of their employees who serve in uniform. 
Many have gone above and beyond what the requirements of law 
place on them. And they should be congratulated and supported 
by their fellow citizens.
    But there are some conflicts and those conflicts must be 
resolved promptly and fairly. Fortunately we have a very strong 
law in USERRA, but enforcement of USERRA can sometimes be 
cumbersome and that's where I think the Congress can help.
    I'd like to respectfully suggest six actions, which the 
Reserve Officers Association believes are necessary.
    First, resource the National Committee on Employment 
Support of Guard and Reserve appropriately. Beef up their 
outreach program and their ombudsman program so that they can 
solve problems at the lowest level.
    Our second recommendation is that the Department of Labor 
needs a specific set of USERRA investigators, rather than rely 
on generalists who cover all of the different Labor areas.
    Third, USERRA records should be maintained electronically, 
so that they can be effectively passed between the service 
member and the various agencies that could be involved in their 
case.
    Fourth, Congress should mandate better reporting by all 
Federal agencies. How many cases are there, really? How are 
they resolved and how long do they take to be resolved? Quite 
frankly, the reporting has been very, very confusing to those 
of us who have been trying to get those answers.
    Fifth, we believe that the Office of Special Counsel should 
handle all of the cases involving Federal employees, in order 
to free up the DOL VETS program to work with private employers 
where we have the majority of the cases. And last, I'd ask you 
to please consider the establishment of a law center at the 
Reserve Officers Association.
    We have been working, quite frankly, in this area for a 
number of years and we've done some great work in creating an 
information sharing program and in providing continuing legal 
education to private counsel. But we could do a lot more with a 
very, very small amount of Federal resources. And I think that 
if we were to do that, we would significantly enhance the 
services being provided to these great young men and women. 
They are the next greatest generation and they truly deserve 
our very best.
    Thank you. I invite your questions.
    [The prepared statement of Lieutenant General McCarthy 
follows:]

     Prepared Statement of Lieutenant General Dennis M. McCarthy, 
                              USMC (Ret.)

    The Reserve Officers Association of the United States (ROA) is a 
professional association of commissioned and warrant officers of our 
Nation's seven uniformed services, and their spouses. ROA was founded 
in 1922 during the drawdown years following the end of World War I. It 
was formed as a permanent institution dedicated to National Defense, 
with a goal to teach America about the dangers of unpreparedness. When 
chartered by Congress in 1950, the act established the objective of ROA 
to: ``. . . support and promote the development and execution of a 
military policy for the United States that will provide adequate 
National Security.'' The mission of ROA is to advocate strong Reserve 
Components and national security, and to support Reserve officers in 
their military and civilian lives.
    The Association's 70,000 members include Reserve and Guard 
Soldiers, Sailors, Marines, Airmen, and Coast Guardsmen who frequently 
serve on Active Duty to meet operational needs of the uniformed 
services and their families. ROA's membership also includes officers 
from the U.S. Public Health Service and the National Oceanic and 
Atmospheric Administration who often are first responders during 
national disasters and help prepare for homeland security. ROA is 
represented in each State with 55 departments plus departments in Latin 
America, the District of Columbia, Europe, the Far East, and Puerto 
Rico. Each department has several chapters throughout the State. ROA 
has more than 505 chapters worldwide.
    ROA is a member of The Military Coalition where it co-chairs the 
Tax and Social Security Committee. ROA is also a member of the National 
Military/Veterans Alliance. Overall, ROA works with 75 military, 
veterans and family support organizations.

               DISCLOSURE OF FEDERAL GRANTS OR CONTRACTS

    The Reserve Officers Association is a private, member-supported, 
congressionally chartered organization. Neither ROA nor its staff 
receive, or have received, grants, subgrants, contracts, or 
subcontracts from the Federal Government for the past 3 fiscal years. 
All other activities and services of the Association are accomplished 
free of any direct Federal funding.

    President: Col. Paul Groskreutz, USAFR (Ret.), 770-973-5584.

    Staff Contacts:

    Executive Director: Lt. Gen. Dennis M. McCarthy, USMC (Ret.), 202-
646-7701.
    Legislative Director, Health Care: CAPT Marshall Hanson, USNR 
(Ret.), 202-646-7713.
    Air Force Affairs, Veterans, Retirement: Lt. Col Jim Starr, USAFR 
(Ret.), 202-646-7719.
    Army, QDR/G-R Commission: LTC Robert ``Bob'' Feidler (Ret.), 202-
646-7717.
     USNR, USMCR, USCGR, USPHS, NOAA: Mr. Will Brooks, 202-646-7710.

    Mr. Chairman and distinguished members of the Health, Education, 
Labor and Pensions Committee, on behalf of our 70,000 members, the 
Reserve Officers Association would like to express our appreciation for 
the opportunity to present testimony on issues that affect the 1.1 
million men and women now serving in America's Reserve Components.
    As ongoing contingency operations continue to bring about more 
mobilizations and deployments for Reserve Component members, many of 
these outstanding citizen soldiers, sailors, airmen, Marines, and Coast 
Guardsmen have put their civilian careers on hold while they serve 
their country in harms way.
    As the Global War on Terrorism enters its seventh year, stresses 
are being placed on the employers of this Nation's Guard and Reserve 
members who have been partners in fighting this war. The vast majority 
of our Nation's employers are very patriotic, but as our Nation 
continues military operations on a global scale, Reserve Component 
members are being mobilized, some for the second or third time, with 
employers facing many problems on the business front.
    Because of this, the Reserve Officers Association has noted an 
increase in re-
employment problems. ROA retains a lawyer to counsel National Guard and 
Reserve members as they are preparing to deploy and after they return. 
We have seen an increase in the number of phone calls and e-mails that 
ROA has been receiving.
    The nature of the problems is changing. While many challenges still 
relate to lost jobs or demotions, others are dealing with lost 
seniority, promotions, pay raises and other employment-related matters 
protected under the Uniformed Services Employment and Reemployment ACT 
(USERRA). The vast majority of these problems are corrected through 
good communications, as is demonstrated by the ombudsman program of the 
Employer Support for the Guard and Reserve that does an excellent job 
in correcting a large portion of these disagreements. Yet, not all the 
problems that arise can be settled through mediation.
    USERRA is essentially a good law, but the challenge is enforcing it 
when the involved parties disagree. When Guard and Reserve members 
return to civilian employment following Federal service, actions need 
to follow through to enforce the law. A growing population of Reserve 
Component members feels that the Federal Government isn't doing enough.
    Background: The Uniformed Services Employment and Reemployment 
Rights Act (USERRA) significantly strengthens and expands the 
employment and re-employment rights of all uniformed service members. 
Re-employment rights extend to persons who have been absent from a 
position of employment because of service in the uniformed services, 
which means the performance of duty on a voluntary or involuntary basis 
including:

     Active duty,
     Active duty for training,
     Mobilization,
     Presidential Recall,
     Active duty for Special Work,
     Initial active duty for training,
     Weekend or Weekday Drill,
     Absence from work for an examination to determine a 
person's fitness for any of the above types of duty,
     Federal National Guard Duty,
     State National Guard Duty,
     Funeral honors duty performed,
     Duty performed by intermittent disaster response personnel 
for the Public Health Service.

    USERRA was signed into law by President Clinton October 13, 1994, 
but the law is actually 63-years-old. USERRA was a complete rewrite of 
the Veterans' Reemployment Rights (VRR) law, which can be traced to 
August 1940, when Congress provided re-employment rights to those who 
left civilian jobs when voluntarily or involuntarily recalled to active 
duty. The law was amended during the 1960s to provide protection to 
National Guard and Reserve members performing training duty.
    USERRA applies to ``re-employments initiated'' on or after December 
12, 1994, while preserving vested rights under the prior law.
    Section 4301 of USERRA (38 U.S.C. 4301) sets forth the purposes 
that Congress had in mind when it enacted this law: to encourage 
service in the uniformed services; to minimize disruption of employment 
and income by providing for the prompt re-employment of those who have 
served; and to prohibit discrimination against those who serve or have 
served. Section 4301 also sets forth ``the sense of Congress that the 
Federal Government should be a model employer in carrying out the 
provisions of this chapter'' [38 U.S.C. 4301(b)].
    On December 19, 2005, the U.S. Department of Labor (DOL) published 
final regulations impacting USERRA. The regulations clarify the rights 
and obligations of individuals serving in active duty with respect to 
their civilian employment. The DOL also finalized regulations regarding 
employer notice obligations of USERRA rights in the workplace, which 
took effect on January 18, 2006. A complete text of the regulations is 
available at www.dol.gov/vets/regs/fedreg/final/2005023961.pdf.
    Discussion: Currently, the agencies tasked to enforce USERRA are 
the Departments of Labor and Justice. DOL's Veterans' Employment and 
Training Service (VETS) handles USERRA complaints and other veterans' 
issues. DOL-VETS provides assistance to all persons having complaints 
under USERRA. If resolution is unsuccessful following an investigation, 
the privately employed Reservist may have his or her claim referred to 
the Department of Justice for consideration for representation in the 
appropriate District Court, at no cost to the claimant.
    Labor currently employs 189 investigators nationwide with authority 
to perform USERRA investigations. Of those, 115 are primary 
investigators; the other 74 are regional administrators and management 
officials. DOL's fiscal year 2007 budget for veteran re-employment 
rights enforcement was $13.7 million. These investigators work other 
cases beside USERRA.
    Labor officials told GAO that the department had 166 USERRA 
complaints by federally employed service members from the beginning of 
the project in 2005 through fiscal year 2006. Of those, it ``closed'' 
155 (93 percent). The GAO has indicated that average time for 
processing complaints was between 53 and 86 days, although the data 
used may have included duplicate complaints. Some files were credited 
as ``closed'' without resolution, and time is not measured by actual 
elapsed time, but by time spent processing.
    Unfortunately, actual elapsed times of cases often take 1 to 2 
years to investigation and process. Within DOL, cases are still 
processed on paper; this slows information transfer, and creates the 
risk of duplication. In the vast majority of cases, the outcome is 
dismissal of the claim. Since USERRA's passage in 1994, most USERRA 
enforcements were by Reservists who sought private litigation.
    A demonstration project was established by the Veterans Benefits 
Improvement Act of 2004 (VBIA). In the act, Congress expanded Office of 
Special Council's (OSC) role. Under the VBIA, jurisdiction over 
federally employed Reservist USERRA cases was split between OSC and 
DOL-VETS. Since 2005, about half of the serving RC members with Federal 
re-employment problems could have allegations directly investigated by 
OSC.
    OSC employs seven people; a unit chief, three investigators and 
three attorneys, who focus almost solely on USERRA cases. The office 
has a budget of $2.5 million. GAO said OSC received 269 complaints from 
the start of the project in 2005 through September 2006. Of those, it 
closed 176 cases (65 percent) at an average 115 days per case.
    OSC reported 45 corrective actions out of 176 cases resolved. The 
Department of Justice's Civil Rights Division has filed 13 lawsuits and 
reaching 7 consent decrees since fiscal year 2005.
    GAO reports that 72 percent of Reservists with re-employment 
problems never seek Federal remedy. Many are discouraged by the elapsed 
time it takes for DOL to investigate and process complaints as the 
employee is in ongoing disagreement with their employers during the 
duration. Others Reserve Component members can't afford private 
litigation. The Reserve Officers Association received a report about 
one Army Reserve unit where of 79 members who returned from deployment 
11 faced re-employment problems, with most simply seeking different 
employment. What is needed is not only a Federal office which can focus 
and streamline USERRA cases, but a collaboration between Federal and 
private representation to serve this country's patriots who are 
transitioning back to becoming private citizens following a tour as 
warriors.
    The Reserve Officers Association is exploring the establishment of 
a Servicemembers Law Center, advising active and Reserve members who 
have been subject to legal problems that occur during deployment. This 
new center would be located in the 5 renovated Minute Man Memorial 
Building on Capitol Hill. A position paper is attached to this 
testimony.
    The law center would provide counseling to demobilized Reserve and 
separated Active component members, and could provide a referral 
service for those who needed legal assistance. This law center would 
also educate private lawyers about USERRA and the Servicemember Civil 
Relief Act and promote representation of RC members by private lawyers.

                               CONCLUSION

    The Reserve Officers Association recommends the following:

    (1) The National Committee for Employer Support of the Guard and 
Reserve (ESGR) should be better resourced to expand its outreach 
programs as it is better to prevent a problem by educating employers or 
resolve a problem at the lowest level.
    (2) The Department of Labor should follow the success of the Office 
of Special Council with dedicated investigators and lawyers assigned to 
DOL-VETS who specifically focus on USERRA cases.
    (3) The Office of Special Council should handle all of the Federal 
employee USERRA cases.
    (4) USERRA case files should be electronically maintained and 
transmitted, allowing access to ESGR, DOL-VETS, OSC, and DOJ and the 
service member.
    (5) Congress should mandate better reporting by all Federal 
agencies by providing details on:

     how many cases;
     how they are resolved; and
     how long the actual elapsed time takes. Accomplishment of 
objectives should be measured by results rather than outputs.

    (6) ROA also hopes that the committee will support the 
Servicemembers Law Center project. It would be a:

     hub for sharing information on USERRA and SCRA; and
     an education source on rights and responsibilities under 
USERRA for serving members and providing continuing legal education to 
private council.

    (7) Further, we hope this committee will support improvements to 
USERRA and work with the Veterans Affairs committee to accomplish this. 
Additional items are needed to strengthen USERRA:

     Do not allow employers to discriminate by asking 
prospective employees if they are in the Guard or Reserve.
     Exempt employees from penalties when their insurance 
lapses if their motor carrier license expires while mobilized (i.e., 
the Federal Motor Carrier Safety Administration).
     Exempt from age restrictions for Federal law enforcement 
retirement application when deployment causes the member to miss 
completion of the application to buy back retirement eligibility.
     Work with Federal agencies to abide by USERRA/SCRA 
standards.
     Amend 38 U.S.C. 4323(d)(1)(C)--the ``liquidated damages'' 
provision in the amount of $20,000 or the amount of the actual damages, 
whichever is greater. Provide a provision in section 4324--for the 
Federal executive agencies provision, such as found in section 4323--as 
it applies to States, political subdivisions of States, and private 
employers.
     Amend Title 38 U.S.C. 4323(e) to mandate (rather than 
simply permit) injunctive relief to prevent or correct a USERRA 
violation.
     Amend Title 49 U.S.C. 44935 to include Transportation 
Security Administration (TSA) screeners under USERRA.
     Amend 38 U.S.C. 4302(b) to make it clear that USERRA 
overrides an agreement to submit future USERRA disputes to binding 
arbitration.
     Amend 38 U.S.C. 4303 (definition of ``employer'') to 
clarify that a successor in interest inherits the predecessor's USERRA 
obligations and that there need not be a merger or transfer of assets 
to support a finding of successor liability.
     Amend 38 U.S.C. 4323 and 4324 to authorize punitive 
damages for willful and egregious USERRA violations.
     Devise a method to tie the escalator principle to merit 
pay systems.
                                 ______
                                 
                    Attachment.--ROA Position Paper

                       SERVICEMEMBERS LAW CENTER

    Concept: ROA Servicemembers Law Center, advising active and Reserve 
members who have been subject to legal problems that occur during 
deployment. This new center would be located in the renovated Reserve 
Officers Association Building.
    Justification: Recruiting of prior service members into the Reserve 
Component is on the decline because service members leaving active duty 
fear ramification of ongoing deployments on new civilian careers. A 
legal center would help:

    Recruit: Encourage new members to join the Guard and Reserve by 
providing a non-affiliation service to educate prior service members 
about Uniformed Services Employment and Reemployment Rights Act 
(USERRA) and Servicemember Civil Relief Act (SCRA) protections.
    Retain: Work with Active and Reserve Component members to counsel 
Uniformed Services Former Spouse Protection Act (USFSPA), USERRA and 
SCRA protections for deployed or recently deployed members facing legal 
problems.
Law Center's Services
    Counseling: Review cases, and advise individuals and their lawyers 
as to legitimacy of actions taken against deployed active and reserve 
component members.
    Referral: Provide names of attorneys within a region that have 
successfully taken up USFSPA, USERRA and SCRA issues.
    Promote: Publish articles encouraging law firms and lawyers to 
represent service members in USFSPA, USERRA and SCRA cases.
    Advise: File Amicus Curiae, ``friend of the court'' briefs on 
service member protection cases.
    Educate: Quarterly seminars to educate attorneys to provide a 
better understanding of USFSPA, USERRA and SCRA.

    ROA's Contributions:

     ROA would set-aside office spaces.
     ROA's Defense Education Fund would hire an initial staff 
of one lawyer, and one administrative law clerk to man the 
Servicemembers Law Center to advise and counsel individuals and their 
legal representatives.

    Anticipated startup cost, first year: $750,000 (for personnel, 
furnishing, leasing, travel, etc.).

    The Chairman. Thank you. Those are good suggestions, 
helpful.
    Lt. Colonel Duarte.

   STATEMENT OF LIEUTENANT COLONEL JOSEPH STEVE DUARTE, U.S. 
                  MARINE CORPS, CENTENNIAL, CO

    Lt. Colonel Duarte. Mr. Chairman, I'm honored to be here 
before you and speak about my experiences with USERRA in regard 
to ESGR. I'm also pleased to be accompanied by my wife, Mary 
Duarte, my daughter, Danielle Duarte, and my parents, Erla 
Duarte and my father, who is a former U.S. Marine who fought in 
Korea, with me today.
    I have faithfully served my country as a U.S. Marine for 29 
years. Concurrent with my Marine Corps service, I'm employed by 
Hewlett Packard and Agilent Technologies, and was deployed 
successfully for 19 years prior to my deployments. Upon my 
return from Operation Iraqi Freedom in July 2003, I worked for 
them for 3 months and on November 10, 2003, the 220th birthday 
of Marine Corps, I was told I was being fired from my company.
    Now, prior to my deployments, I was briefed on my USERRA 
rights and the laws that were supposed to protect me. And I 
felt confident that these USERRA rights or government agencies 
or the company I even worked for would help me resolve my 
situation. I was fired by two or three managers who worked 
directly with me, from my company, but the most significant 
thing about that was that the senior leadership of that 
company, the CEO and the highest ranking HR member of that 
company, were conspicuously absent throughout the entire 13-
month process. So, they were pretty much--the managers who 
worked directly with USERRA were out there on their own.
    I did attempt to communicate----
    The Chairman. I don't understand. The people in your 
company, overall heads of the company were detached from your--
--
    Lt. Colonel Duarte. Yes. Yes, sir. That's correct. There 
were three managers directly related to the case that fired me, 
but the senior level above them were conspicuously absent 
throughout the entire process.
    Now, I did attempt to communicate with them directly, via 
e-mail, the day after I was told I was being fired. And within 
24 hours after sending my e-mail directly to them--and I did 
include the CEO of the company, the VP of HR, and the highest 
levels of the management with Agilent Technologies. The answer 
I received back from them--and I'll just briefly read an 
excerpt from that--``We have received the concerns expressed in 
your memo. We have concluded that USERRA does not prohibit us 
from selecting you as a participant in Agilent's workforce 
management program.'' This response came back less than 24 
hours after I sent my communication to them. And really, in 
less than 24 hours they were completely knowledgeable about 
USERRA and felt that they knew exactly what they needed to do 
with that. There was no question in their mind what they wanted 
to do.
    On November 13, a couple days after I was being told I was 
fired, is my first contact with ESGR. I explained my deployment 
history and my timeline of events and pending terminations. 
Without any further comment or questions, they give me a phone 
number to the Department of Labor of VETS. They did not offer 
any guidance, any mediation, any informal investigation, or no 
training related to USERRA. They gave me the phone of the VETS 
and DOL. They did not relate my process or any process I should 
follow, except to contact the DOL.
    The DOL, I contacted them with the number they gave me from 
ESGR and they were equally ineffective. The person I spoke to 
at the Department of Labor of VETS, and I'll quote. She said, 
``Unless your termination was for military reasons, you have no 
case.'' And they again offered no guidance, mediation, 
investigation of any sorts or any referral of any process I 
should follow.
    I filed my case in district court the following February 
2004. And loss of my livelihood, the support of my family and 
career change at age 51 were on the line, along with the fact 
that many thousands of troops returning were potentially 
following the same fate that I did. I surmise that many of 
these returning service members and Guard members would be 
pushed aside by ESGR with the same response I was given. Many 
younger privates, airmen, lance corporals, sailors, or 
sergeants might not have the time, resources, or wherewithal to 
fight or question wrongful terminations, regardless of job 
change.
    Without the aid of USERRA--or without the aid of ESGR, DOL, 
Agilent and its attorneys treated me as though I had broken the 
law. They attacked my personal performance, my skill sets, they 
eliminated my job and reposted it 3 months later verbatim, the 
way it was written when I was doing the job. They also had me 
sign releases during the court case to get release of my 
medical records, my military records, my financial background, 
and even criminal records. They were looking for anything they 
could to discredit me.
    Not one member of our military should ever be subjected to 
treatment such as this, especially after deployment in the 
defense of our country.
    The case lasted 13 months and in March 2005, Agilent 
Technologies was found in violation of USERRA. The cost to 
Agilent Technologies has been estimated at $1 million. They 
chose to specifically fight this case, spend a significant 
amount of money, hire a large firm, and fight a single military 
veteran, while this country was still at war.
    My second contact with ESGR was 4 months after I filed my 
case and 7 months after my initial contact with ESGR. And I 
received a call from Fred Fleetmeier, who is the Chairman of 
the Colorado ESGR. He asked about my status. I informed him 
about my conversation that I had initially with his ombudsman 
and when I told him what they had said, he said, ``What is your 
current status today? '' And I said, ``I have filed a lawsuit 
in the district court.'' He immediately ended the conversation, 
again, providing no other resources or avenue of what I should 
do. He said, ``We cannot help you any more,'' and almost, 
promptly hung up.
    Companies and organizations interpret labor laws through 
their own biased filters and business needs, who dehumanize the 
effect based on the bottom line. While many companies share the 
country's burden of being at war, other companies share none. 
Still, there are many businesses, organizations, agencies, and 
civilians that do not have any idea or care to have an idea 
what the military member has sacrificed for his country and 
family. For the most part the military member has become an 
inconvenient leave of absence and disruption to their business.
    I sued Agilent Technologies because they were one of the 
companies who completely ignored the fact that this country was 
at war, and a war for which they neither acknowledged nor 
demonstrated any shared responsibility. They also chose to 
interpret USERRA to meet their own financial needs. They broke 
the law.
    I spent----
    The Chairman. I'm going to give you just another minute or 
so, because I want to hear from Mr. Halbrook and today we've 
got a vote that's going on.
    Lt. Colonel Duarte. Yes, sir. I spent $12,000 of my own 
money and turned down a settlement offer of $325,000 to 
continue this lawsuit.
    My ordeal, unnecessary ordeal, with Agilent has made me and 
my family stronger. It has also significantly increased my 
conviction that no other member of our military ever endure 
this treatment, especially after dedicated and faithful service 
to their country. I've gratefully accepted your offer to 
testify here today and flew myself out here at my own expense 
for my brothers and sisters in the military. We need to 
continue to pursue and defend all USERRA issues as they occur 
with our returning Reservists and Guard members, as this law 
will be meaningless without enforcement.
    Thank you, Mr. Chairman.
    [The prepared statement of Lieutenant Colonel Duarte 
follows:]

  Prepared Statement of Lieutenant Colonel Joseph Steve Duarte (USMC)

                                OPENING

    Mr. Chairman and distinguished members of the committee, I am 
honored to appear before you today to speak about my experiences with 
the Employer Support of the Guard and Reserve in regards to helping 
other service members understand their resource options and rights 
under the Uniform Services Employment and Reemployment Act (USERRA). I 
am pleased to be accompanied at today's hearing by my wife, Mary 
Duarte, my daughter, Danielle Duarte, my mother, Erla Duarte and my 
father, a former U.S. Marine who fought in Korea, Joe Duarte.
    More than anytime since WWII, the U.S. Armed Forces are relying on 
National Guard Members and Reservists to carry out their missions. 
Since September 11, greater than one half million Reservists and 
National Guard members have dutifully left their civilian jobs and 
families and risked their lives alongside active duty troops. I was one 
of those Reservists and I am here to relate my personal experience with 
regard to the transition from military duty to civilian life.
    Many of our troops have assimilated back into the civilian world 
with family and careers which were interrupted while they were called 
upon to do the work of the country. However, thousands of others like 
me, have returned home to problems with our civilian employers. 
Employment problems that have included: demotion, loss of pay and 
benefits, and even flat-out firings--as happened to me.

                          MILITARY BACKGROUND

    I was a U.S. Marine for 29 years. I was commissioned a Second 
Lieutenant in the U.S. Marine Corps in April 1977. I served on active 
duty until April 1980 as a Marine Artillery Officer. I became a Marine 
Reservists in September 1980 and maintained this status until called to 
Active duty following the attacks on the World Trade Center in 
September 2001. From October 2001 to April 2002, I was activated in the 
capacity of a Marine Liaison Officer assigned to the Joint Force 
Command in Norfolk, Virginia. From November 2002 to July 2003, I was 
activated in the capacity as a Marine Advisor to the Navy Seabees 
operating in Kuwait and Iraq during Operation Iraqi Freedom. From June 
2005 to March 2006 I was activated and assigned duties as the Senior 
Operation Office in the Fourth Marine Division Command Operations 
Center in New Orleans, Louisiana, prior to, during and after Hurricane 
Katrina. I retired from the Marine Reserves in March 2006.

                          CIVILIAN BACKGROUND

    Concurrent with my service in the Marine Corps, I have remained 
employed in the private sector. From April 1980 to October 1984 I was 
employed by Texas Instruments as a Manufacturing Supervisor. From 
November 1984 to November 2003, I was employed by Hewlett-Packard as a 
Human Resource Generalist performing such functions as Compensation, 
Recruiting, Training and Organizational Development issues. In November 
1999, Agilent Technologies, Inc. was spun off from HP. As a long-term 
HP employee, all my seniority rights continued with me in my move to 
this new spin off company. I was primarily assigned duties as a Senior 
Design Consultant for Sales, in the Corporate Compensation department.
    Agilent Technologies is the company which fired me in November 
2003. I returned from Operation Iraqi Freedom in July 2003 and on 
November 10, 2003, the 228th Birthday of the U.S. Marines, I was told 
by my manager that I was being fired.

                               MY OPTIONS

    In 1994 Congress passed the Uniformed Services Employment and 
Reemployment Rights Act, or USERRA. My understanding is that at least 
part of the rational behind the law is that when the Nation goes to 
war, everyone should share in the responsibility and not just the men 
and women on the front lines.
    Prior to my active duty assignments following September 11, 2001, I 
was briefed on USERRA as a law that was supposed to protect Reservists 
rights. I understood USERRA guaranteed service members their civilian 
jobs back upon their return and that it included both public and 
private sector employers. Returning Service members were guaranteed re-
employment for at least 6 or 12 months, depending on the length of 
deployment.
    At the time of my firing from Agilent Technologies, Inc. in 
November 2003, my options were readily apparent and I felt confident 
with the knowledge that there were laws written to protect deployed 
personnel and government agencies specifically chartered to support 
these laws. Given the patriotic wave of support throughout this country 
since 9/11, I felt confident in that the USERRA law, the government 
agencies or the company I worked for 19 years would somehow support my 
deployment in the defense of our country and allow me to resume a 
previously successful career.
    I communicated directly with the highest levels of management 
within Agilent Technologies, Inc. I contacted the ESGR immediately when 
I received the word from Agilent that USERRA did not prevent them from 
letting me go. I contacted the Department of Labor (VETS) as instructed 
by ESGR. Having failed in my communications with my company and getting 
no help from two government agencies, I hired private counsel.

            EMPLOYER SUPPORT OF THE GUARD AND RESERVE (ESGR)

    I understood ESGR's mission to ensure that public and private 
employers support the men and women of the National Guard and Reserve. 
It is their volunteer ``ombudsmen'' who are tasked with preventing, 
resolving, or reducing employer and employee problems and 
misunderstandings that result from National Guard or Reserve service by 
providing information regarding USERRA, informal investigations and 
informal mediation.
    During deployment briefings, troops are reminded of their USERRA 
rights and advised that if they have trouble with their civilian 
employers, they should contact the local ESGR office. Military 
Reservists and Guard Members are briefed and encouraged to first turn 
to the Employer Support of the Guard and Reserve (ESGR). My 
understanding as a Marine Officer was that the ESGR would be my 
advocate to discuss any violations of USERRA.

                         JOB LOSS FROM AGILENT

    My job firing was orchestrated by three individuals with absolutely 
no regard for USERRA or my military situation or for that matter, my 
performance in that civilian job. Actually, they regarded the law only 
enough to scheme around it. One of these individuals sat within a short 
walking distance in the same building from the top leadership of this 
28,000-plus employee organization. The leaders I speak of here are the 
CEO Ned Barnholdt and the Vice President of Human Resources and highest 
ranking Human Resources member, Jean Halloran, both of who were visibly 
absent during the entire process. Both were addressees on e-mails sent 
directly to them and neither responded, apparently choosing to keep 
their heads buried in the sand and refusing to acknowledge the 14-month 
legal proceedings. They failed to acknowledge from even a patriotic 
perspective knowing this country was at war and a single member of the 
Agilent organization was questioning his military labor law rights 
through USERRA. The total lack of leadership at the highest levels of 
this organization and the total lack of management checks and balances 
for a multi-billion dollar organization for labor laws like USERRA suggest 
that their business needs and financial priorities were much greater than 
the needs of this country.
    The three individuals who orchestrated this violation of law and my 
firing relied on a scheme they cooked up from a program known to 
Agilent Managers as ``Workforce Management'', a euphemism for firing 
employees! The Workforce Management program had been used by Agilent 
Technologies over the preceding 4 years, to lay off 12,000-plus 
employees. This program, prior to my firing in November 2003, had never 
been used to lay off an employee who had been activated to military 
service with rights under USERRA.
    The Workforce Management program was a management tool used by 
Agilent Technologies to effectively eliminate positions. Since their 
spin off from Hewlett-Packard in November 1999, Agilent Technologies 
had essentially reduced their workforce from 40,000-plus employees to 
approximately 28,000 employees at the time of my release from the 
company in November 2003, a period of 4 years. This workforce program, 
utilized for eliminating employees, had apparently survived the labor 
laws for the release of minorities, women, older employees or other 
employees in protected classes, but it had never been utilized to 
eliminate a USERRA-protected employee.
    The Workforce Management program had two primary selection criteria 
for managers to select from in targeting employees for termination. The 
primary selection criteria were if the employee was involved in 
programs, projects, or other work slated for elimination. The secondary 
selection criteria were for such things as process improvement, excess 
capacity or restructuring. For these secondary criteria, managers were 
asked to list the future essential job functions, analyze the future 
business needs and evaluate the individual critical skills for each 
employee.
    After my return to Agilent Technologies from Operation Iraqi 
Freedom in July 2003, I was not given the position I held prior to my 
deployment. My manager, Brunker had stepped down from her management 
position and filled my position within the organization. My new 
manager, Groniga, assigned me to a special project. Unknown to me, this 
particular project is slated to be eliminated and because the project 
is ended 3 months after being assigned to me, the first selection 
criterion for the Workforce Management program is met. Concurrent with 
this project assignment, Brunker was asked to complete a performance 
evaluation on me based on 4 months observation (prior to my deployment) 
and to also complete a skills assessment on me. Brunker writes a 
performance evaluation that identifies many areas for improvement this 
was substantially different than my two previous evaluations written by 
two separate managers. Those were glowing. Brunker also conducts a 
``critical skills assessment'' and scores me significantly low and was 
ultimately reviewed and approved by Groninga. After nearly two decades 
with this organization (Hewlett-Packard and Agilent Technologies), my 
skills are now rated as significantly diminished and degraded. Suddenly 
the company saw me as if I were a different, unqualified person.
    On November 10, 2003, I was told by Groninga that I am being 
selected for ``Workforce Management'' because the project I am working 
is going away. After almost two decades with this organization, I was 
told I have 1 week to clean out my desk and my last day would be 
November 17, 2003. It was after this phone conversation with Groninga 
that I contacted my Commanding Officer, Colonel Aucoin, who advises me 
to send a communication to Agilent Technologies that they are in 
violation of USERRA. On November 12, I sent an e-mail directly to Jean 
Halloran (VP of HR for Agilent Technologies, and copies to the CEO, 
Groninga, Brunker, Juskie, and several other managers. The following is 
an excerpt from this e-mail communication:

          As a member of HP and Agilent HR workforce for 19-plus years, 
        I understand the companies need to manage it's workforce. If 
        you proceed with the process to end my employment with Agilent, 
        you will be in violation of Federal Law; 38 U.S. Code 4316(C) 
        4317(C) (USERRA).

    Within 24 hours after sending my e-mail to Agilent officials, I 
received an e-mail reply on November 13, from Steve Remmel (Agilent 
Group Human Resources Manager), the following is an excerpt from that 
response:

          We have reviewed the concerns expressed in your memo. We have 
        concluded that USERRA does not prohibit us from selecting you 
        as a participant in Agilent 's Workforce Management Program.

    In less than 24 hours or 1 business day, Agilent Technologies, Inc. 
is totally knowledgeable and completely confident in their assessment 
of USERRA, and that this fairly new labor law with little case law 
support does not prevent them from letting me go.

                        FIRST CONTACT WITH ESGR

    I first contacted the ESGR on November 13, 2003. I briefly 
explained my deployment history, timeline of events and my pending 
termination. Without further comments, questions or discussion, I was 
immediately referred to the Department of Labor. The ESGR contact did 
not offer me any guidance regarding an informal investigation they 
might conduct with Agilent Technologies. The ESGR contact did not 
mention anything related to any mediation they might conduct. The ESGR 
contact offered no guidance or training related to USERRA. The ESGR 
contact did not relate any process that I should follow except to 
contact the Department of Labor.
    The ESGR Ombudsman was completely ineffective to my firing in 
November 2003. A situation where my employer raised many flags and 
would eventually be found in violation of USERRA and obvious 
misconduct. The ESGR Ombudsman offered no research to any potential 
USERRA violations and never volunteered to conduct an informal 
investigation. The ESGR made no attempt whatsoever to review my 
potential USERRA situation and never offered mediation or suggestion to 
contact Agilent for additional information.

                    CONTACT WITH DEPARTMENT OF LABOR

    The ESGR Ombudsman I spoke to on November 13, gave me a phone 
number to call when he referred me to the Department of Labor. I called 
this number (303-844-2151) on November 13 and received a recorded 
message for a Mark McGinty, whereby I left my name and number on his 
voice mail. This phone number was for an organization known as the 
Veterans Employment and Training Services (VETS). I received no return 
call from Mr. McGinty and on the next day I tried the phone number 
again. This time I was connected with Teresa Arney, a VETS Program 
Assistant, who spoke to me in person. Again, I briefly explained my 
deployment history, timeline of events and my pending termination. I 
also explained that I was referred to this number by an Ombudsman with 
the ESGR. She was quick to tell me that if I did not hear someone at 
Agilent Technologies tell me that they were ``terminating me for 
military reasons,'' that I did not have a USERRA case.

           JOSEPH STEVE DUARTE V. AGILENT TECHNOLOGIES, INC.

    The case, Civil Action No. 04-B-0298 Mag. Div. (CBS), was filed in 
U.S. District Court for the District of Colorado. After continued 
discussions and consultations with Colonel Aucoin and having not heard 
any responses from the ESGR or Department of Labor, I filed this suit 
in February 2004.
    In my professional Human Resources history with both Hewlett-
Packard and Agilent Technologies, whenever an employee filed a law suit 
against the company, internal counsel would attempt to get the case 
dismissed through Summary Judgment. If the case was not dismissed, then 
outside counsel would be retained to handle the case. In my particular 
situation, after I made my filing in U.S. District Court, Agilent 
Technologies immediately hired one of the largest law firms in Colorado 
to defend them. They hired the Denver law firm of Holland & Hart LLP.
    I retained my Commanding Officer, fellow Marine and Civilian 
Attorney George Aucoin. With limited financial resources and little 
case law history we attempted to find out if USERRA had teeth. The loss 
of my livelihood, the support for my family and a career change at age 
51 were on the line, along with the fact that many thousands of troops 
would return home to potentially the same situation. At the time, I 
surmised that many of these returning Reservists and Guard Members 
would be pushed aside by the ESGR with the same response I was given. 
Many others might receive the same information by VETS and the 
Department of Labor. Many younger Privates, Airman, Lance Corporals, 
Sailors or Sergeants might not have the time, resources or wherewithal 
to fight or question wrongful terminations or job status changes. Many 
would possibly take a small or no severance package and move on in the 
interest of continued support to there families.
    Agilent Technologies attorney's pursued a multi-pronged approach to 
discredit me through several avenues:

    1. My old manager Brunker writes a Performance Appraisal with low 
marks. Two previous managers on two separate appraisals mark me as 
having acceptable performance.
    2. My new manager Groninga assigns me to a special project upon my 
return from Operation Iraqi Freedom. She alone cancels the project 
which is the No. 1 criteria for the Workforce Management program 
allowing for the termination.
    3. My old manager Brunker, along with my new manager Groninga 
complete a critical skills assessment on me. They are the only two to 
score and evaluate the test which is the secondary reason for Workforce 
Management.
    4. My new manager Groninga states that my job has been eliminated 
through a restructuring program. My exact position, verbatim, is posted 
on an external Web site 3 months after I was released.
    Agilent's attorneys suggest that my termination was justified due 
to financial strain that Agilent Technologies was experiencing. During 
the fiscal quarter in which I was let go, Agilent Technologies gave 
bonus money back to the employees in the amount of $12-$13 million. I 
myself received $500. Agilent Technologies makes significantly more 
money in the year to follow.
    6. Agilent's attorney's, looking for a defense; ask me to sign a 
release for my medical records, previous income filings, military 
records and criminal background. They apparently find nothing they can 
use.
    7. Agilent's attorneys accuse me of not looking for employment and 
mitigating my circumstances during the year long case. I provide 
monthly documentation to them demonstrating greater than 150 resumes 
submitted to companies for the various functions within HR.

    The case lasted 13 months and in March 2005 Agilent Technologies, 
Inc. was found in violation of USERRA. Me, my family and Colonel Aucoin 
invested hundreds of hours in time. The out-of-pocket expense to me and 
my family exceeded $12,000. This financial expenditure was all during a 
time of unemployment, with limited funds coming from continued Marine 
Reserve duty, unemployment compensation and an Agilent Severance 
package. Without a steady income, there was a reluctance to spend money 
and conserve my assets.
    The cost to Agilent Technologies, Inc., which include such items as 
attorneys fees (defendant and plaintiff), judgments, back pay and 
interest, not to mention loss in productivity to managers, has been 
estimated at nearly $1 million. This is significant in that given the 
7-month severance they gave me, with an additional 1 month pay and 8 
months worth of benefits, they could have kept my services for 8 months 
and fired me for any reason they wanted after my USERRA 12-month re-
employment requirement. They chose to specifically fight this cause, 
spend a significant amount of money, hire a large law firm and fight a 
single military Veteran while this country was still at war. A billion 
dollar corporation like Agilent Technologies, can afford to spend a 
million dollars on a legal issue.
    The DOD Ombudsman or the Department of Labor-VETS could have 
inquired or intervened with any of the above listed items and 
reasonably determined that information, education, investigation 
(formal or informal) or mediation would have produced better results.

                        FINAL CONTACT WITH ESGR

    During my case, my final contact with ESGR occurred when I received 
a call from Fred Fleetmeyer, the Colorado Chairman for the ESGR, 
sometime during June 2004. This phone call was about 7 months after my 
initial contact with ESGR. For some reason or another he had heard 
about my situation with Agilent Technologies, and inquired about my 
current status. I informed him about my conversations with two 
Ombudsmen from the Colorado organization (the names of which I 
mentioned to him at the time of this conversation but cannot recall 
now) and their giving me the phone number and forwarding me to the 
Department of Labor. He inquired as to my current status and when I 
mentioned that I had acquired private counsel and filed a case through 
District court, he stated that the ESGR could not help me and 
immediately ended the conversation. He neither asked nor suggested any 
conversation about the problems associated with my initial contact with 
the Colorado ESGR.

                    WHY I SUED AGILENT TECHNOLOGIES?

    I have been a Human Resources professional for 20 years and have 
been involved with many terminations, suspensions, downsizing, lay-
offs, demotions and various employment statuses for which these laws 
were enacted to protect. Companies and organizations interpret labor 
laws through their own bias, filters and business needs and will 
dehumanize the effects based on the bottom line. While many companies 
share this countries burden of being at war, other companies share 
none.
    USERRA as recently re-drafted in 1994, is a fairly new labor law 
for which many companies have little or no experience. It has been my 
experience in working within both the public and private sectors, that 
many companies follow the labor laws enacted to protect employees. 
However, there are still many businesses, organizations, managers and 
civilians that do not have any idea or care to have any idea what the 
military member has sacrificed for his country and family. For the most 
part, the military member has become an inconvenient ``Leave of 
Absence'' (LOA) and disruption to their business.
    I sued Agilent because they were one of these companies who 
completely ignored the fact that this country was at war and a war for 
which they neither acknowledged nor demonstrated any shared 
responsibility. They also choose to interpret USERRA to meet their own 
financial needs. THEY BROKE THE LAW.
    This company, through its manager Vicki Groninga, went out of its 
way to fire me after I returned from Operation Iraqi Freedom. Ms 
Groninga was a manager within Agilent's corporate Human Resources 
organization with access to corporate counsel and should have known the 
consequences to violations of Federal law. CERTAINLY AFTER MY E-MAILS 
TO HER AND OTHER MANAGERS LAYING OUT THE LAW. It was Groninga who 
wanted me gone and she used Agilent's rules to fire me. In my opinion, 
Ms Groninga is one of those civilian managers who does not have any 
idea or care to have any idea what the military member has sacrificed. 
THE LAW EXISTS TO PROTECT SERVICE MEN AND WOMEN FROM MANAGERS LIKE 
THIS.
    Agilent Technologies manager was prepared to take whatever steps 
and provide whatever resources necessary to eliminate my position 
regardless of USERRA. This case demonstrated the fact that some 
businesses and organizations are not afraid of USERRA, ESGR, Department 
of Labor, Department of Justice or Office of Special Counsel. They are 
fully aware that Reservists and Guard members do not have the time or 
other resources to fight for their job status changes or lost 
positions.

                             FINAL THOUGHTS

    About 2 weeks before the case coming to trial, Agilent 
Technologies, Inc., through their attorney, offered me $325,000 to 
settle the case. For reasons stated earlier regarding all the 
Reservists and Guard Members to follow me and return home, I turned 
them down. By now it was a firmly entrenched principle and leadership 
issue. I needed to determine if USERRA had teeth and could protect the 
rights of all Reservists and Guard Members. I needed to know that 
organizations who do not share in the responsibility or burden of this 
country being at war, could not summarily dismiss USERRA as just 
another labor law.
    When I returned from Operation Iraqi Freedom I didn't fully 
understand the USERRA law. I am not a lawyer but I expected various 
government agencies like ESGR and the Department of Labor to help me.
    The Employer Support for the Guard and Reserves failed me as a 
returning service member, and failed completely and miserably. They 
demonstrated absolutely no interest, willingness or desire to educate, 
intervene or mediate between me and Agilent Technologies, Inc. It felt 
as though they were on the side of the large corporations and 
politically or otherwise did not want to lose the support of big 
business. For whatever their reasons, as a government agency they 
offered no support or empathy for my situation and I continued to move 
forward as Marines are trained.
    The Department of Labor-VETS, equally failed in their support for a 
returning Veteran. They never offered or volunteered to investigate my 
USERRA claim. They offered no comprehensive outreach of any sort nor 
any education or training. They never offered to mention that a process 
existed or should be followed. They never reviewed my rights and were 
quick to dismiss my claim. Again, not being a lawyer, I relied heavily 
on their counsel and advice.
    Following my two deployments since September 11, 2001 and my 
subsequent termination from Agilent Technologies, Inc. on November I7, 
2003, my family and livelihood have been significantly disrupted. Being 
deployed to a combat zone in defense of your country is difficult, but 
a situation for which I was trained. Being released from your 
livelihood after serving your country and getting no support from its 
government agencies is reprehensible. Either agency (ESGR or DOL-VETS) 
with minimal investigative effort could have (and should have) easily 
uncovered the misconduct perpetuated by Agilent Technologies.
    Agilent Technologies and their lawyer's, attacked and twisted every 
part of my character, my past performance, my skills, and my general 
worth to the company to win the case against me. After 19 dedicated 
years to this company, the company allowed its attorney's to paint me 
as lazy, unmotivated and questioned my integrity. My wife and three 
children endured my job loss, the financial strain and this legal 
challenge against us for 15 long months.
    After Agilent broke the law of USERRA and fired me, I eventually 
found employment. It was not easy. From November 2003 to June 2005, I 
submitted well over 200 applications and resumes to various companies 
for HR positions and received only two face-to-face interviews. From 
June 2005 through March 2006 I was deployed to New Orleans with the 4th 
Marine Division, physically enduring Hurricane Katrina from my assigned 
post adjacent to the Mississippi River and near downtown New Orleans. 
From April 2006 to August 2006 I returned to civilian life and was 
briefly employed by Leprino Foods as a Compensation Specialist. For the 
past 6 months I have been and currently employed by the city of 
Westminster as a Senior Human Resources Analyst continuing my 
responsibilities as a Generalist and my professional passion for 
Compensation, Recruitment, Training, Organizational Development and 
Employee Issues. MY ORDEAL, UNCECESSARY AND ILLEGAL ORDEAL, with 
AGILENT, has made me and my family much stronger. It has also 
significantly increased my conviction in that no other Marine, Sailor, 
Airman, Soldier, Guardsman or any member of our military, ever endure 
this treatment, especially after dedicated and faithful service to 
their country. I have gratefully accepted your offer to testify here 
today, and flew myself out at my own expense, for my brothers and 
sisters in the military. We need to continue to pursue and defend all 
USERRA issues as they occur with our returning Reservists and Guard 
Members, as this law will be meaningless without enforcement. THANK YOU 
FOR THE OPPORTUNITY TO SPEAK WITH YOU TODAY.

    The Chairman. Well, thank you for a remarkable story. 
Thanks for your service and thank you for a remarkable story. 
It reminds us about what our responsibilities are. I appreciate 
it. It's very moving.
    Mr. Halbrook.

STATEMENT OF RICHARD HALBROOK, EXECUTIVE VICE PRESIDENT, DOLLAR 
           THRIFTY AUTOMOTIVE GROUP, INC., TULSA, OK

    Mr. Halbrook. Chairman Kennedy, members of the committee, 
I'm honored to be before you today. Thank you for the 
invitation.
    Dollar Thrifty Automotive Group is a Fortune 1000 company, 
headquartered in Tulsa, Oklahoma. We rent cars under the Dollar 
Rent-A-Car brand and the Thrifty Car Rental brand. We were 
ranked one of America's most trustworthy companies by Forbes 
Magazine in 2007. We believe that says a lot about the values 
we hold and our integrity.
    However, most important to the topic before this committee 
and why we were invited this morning, was the distinguished 
service award we received this year from the National Defense 
Transportation Association, and most recently, the 2007 
Secretary of Defense Employer Support Freedom Award. We were 1 
of 15 U.S. employers out of 1,200 nominations to have been 
honored by ESGR.
    At the awards ceremony on September 12, here in Washington, 
Thomas F. Hall, Assistant Secretary of Defense for Reserve 
Affairs, said, ``In the military, the best leaders are those 
who have always taken care of their people. It's no different 
in the civilian workforce.'' We couldn't agree more. And with 
that lead-in, let me give you some of the history about our 
experience with USERRA.
    Certainly, when you looked at USERRA, it didn't seem that 
difficult to comply with. It was much like FMLA. It had some 
additional complexities to it, but it wasn't that hard. We 
thought we would go above and beyond that. In addition to 
compliance with that, we proposed a few enhancements. First we 
said, if the base-pay of the employee on military service is 
less than what they would have received if they were with us, 
we would continue to pay them that difference while they were 
serving and we'd make deposits into their account. We had forms 
and procedures to do that.
    Second, USERRA requires the continuation of health care at 
the full premium level, or 102 percent of the full premium. We 
know that this amount can be significant. As this is the amount 
associated with COBRA coverage when an employee leaves our 
company. So, the second enhancement we had was to extend health 
coverage to the employee at the same rate per month that they 
would have seen if they were still working for us full time.
    Third, we also made our employee assistance program 
counseling available to the returning military employee, to aid 
them in their return and transition back to civilian life.
    The employees of Dollar Thrifty and our culture are what we 
find makes the real difference for our employees going on 
extended military leave, and that is something that can't be 
implemented by a formal policy. It's against the cultural 
backdrop that our employees choose on their own, to correspond 
to coworkers that are out on military leave, post pictures in 
the hallways, hold ``Good Luck'' and ``Godspeed'' going away 
parties, and more important, hold the welcome back parties.
    It's our managers who know and recognize what military 
experience and assignments do in the way of developing an 
employee and their leadership skills. An example is the case of 
Marine Corporal Blake Milam, who shortly after his return to 
Dollar Thrifty, applied for and received a promotion to a new 
position. There are always areas of opportunity where we can do 
better at Dollar Thrifty. That's the nature of a company led by 
a Marine. Our CEO, Gary Paxton, who keeps demanding and raising 
the bar for us to perform to. We were humbled beyond all words 
for the nomination submitted by Corporal Milam. To us, we were 
simply doing the right thing.
    So, in closing, I'd like to paraphrase the letter that 
Corporal Milam wrote on our behalf, in his nomination of our 
company.

          ``When I got off active duty and returned to reserve status, 
        I already had my old job at Dollar Thrifty waiting for me. All 
        of my fellow employees had a welcome home party for me at work, 
        cake, balloons, and a huge card. I even had a department 
        director and a bunch of big wigs come down and shake my hand. I 
        had been activated on December 1, 2005 and was back to work in 
        November 2006. I was given two raises and a healthy profit-
        share that quickly went to bills and relieved much of my 
        stress. Overtime was always there when I asked. My fellow 
        employees even took time out of their day to help me re-learn 
        my job. In December, I applied for a new position in the 
        company and was moved up to where I am now in January. It's 
        almost surreal to think that a year ago I was shooting and 
        being shot at daily. If I didn't have this job at Dollar 
        Thrifty, if I had to look for a job with that many bills and 
        that much stress and that much happening all at once, I 
        wouldn't be where I am today and I'm very happy where I am 
        today. That's why I nominated my company for the Freedom Award, 
        for making my transition back to the real world possible.''

            Sincerely,
                                               Blake Milam.

    Thank you, Corporal Milam. We believe we were just doing 
our duty.
    Again, thank you for inviting me here today.
    [The prepared statement of Mr. Halbrook follows:]

                 Prepared Statement of Richard Halbrook

    Chairman Kennedy, Senator Enzi and members of the committee, I am 
pleased to appear before you today. My name is Rich Halbrook, and I 
currently serve as the Executive Vice President of Administration and 
Human Resources for the Dollar Thrifty Automotive Group.
    Dollar Thrifty Automotive Group, Inc. (DTG) is a Fortune 1000 
Company headquartered in Tulsa Oklahoma. The Company's two brands, 
Dollar Rent-A-Car and Thrifty Car Rental, serve value-conscious 
travelers in approximately 70 countries. Dollar and Thrifty have over 
800 corporate and franchised locations in the United States and Canada, 
operating in virtually all of the top U.S. airport markets: both brands 
operate in all of the top Canadian airport markets. The Company's more 
than 8,500 employees are located mainly in North America, but global 
service capabilities exist through an expanding international franchise 
network.
    Dollar Thrifty has been recognized for several initiatives and 
services, but among these we are most proud of are the ones that point 
to our integrity and support of the Armed Services and our employees in 
the Armed Services. Briefly, Dollar Thrifty was named one of America's 
Most Trustworthy Companies by Forbes in March 2007. We believe that 
says a lot about the values we hold and our integrity. However, most 
important to the topic before this committee and why we were invited 
here this morning was the Distinguished Service Award we received this 
year from the National Defense Transportation Association (NDTA), and 
most recently, the 2007 Secretary of Defense Employer Support Freedom 
Award.
    Dollar Thrifty Automotive Group, Inc. was one of 15 U.S. employers 
out of 1,200 nominations, to have been honored with the 2007 Secretary 
of Defense Employer Support Freedom Award by the National Committee for 
Employer Support of the Guard and Reserve (ESGR), an agency of the 
Department of Defense.
    Accepting the award on Dollar Thrifty's behalf at a special awards 
dinner was Dollar Thrifty President and CEO, Gary Paxton. The 
celebration took place 
September 12 at the Ronald Reagan Building and International Trade 
Center in Washington, DC.
    Thomas F. Hall, Assistant Secretary of Defense for Reserve Affairs, 
said at the event, ``In the military, the best leaders are those who 
always take care of their people--and it is no different in the 
civilian workplace.''
    We couldn't agree more. And with that lead in, let me give you some 
history about our experience with the Uniformed Services Employment and 
Reemployment Rights Act, USERRA.
    When presented with the requirements of the amended USERRA, our 
CEO, Gary Paxton, asked that my department explore what this would mean 
for DTG employees serving our country. Overall, our summary look at the 
USERRA showed that we were compliant with the act.
    There are a lot of details behind these basic requirements which 
are contained in the 20-plus pages of the act itself, and at Dollar 
Thrifty we decided to not just be compliant with the act, but to take 
additional steps that would reflect our culture, which puts our people 
as our No. 1 priority. These enhancements were fairly straightforward 
and included:

    (1) If the base pay the employee receives during their military 
leave is less than the pay they would have received while continuing to 
work for DTG, then DTG would make regular deposits equal to this 
difference. Forms and administrative procedures were developed to 
handle this aspect of the policy.
    (2) USERRA requires the continuation of health care at the full 
premium level or 102 percent of the full premium. We know that this 
amount can be significant, as this is the amount associated with COBRA 
coverage when an employee leaves our company. So the second enhancement 
was to extend heath coverage to the employee at the same rate per month 
that they would pay if they were still working full-time at DTG. This 
is a much lower amount than the full premium called for under USERRA. 
Most of our employees on leave will likely find their coverage under 
the Armed Services policy more than adequate for just themselves, but 
our concern here was also for family coverage situations where there 
may be the need for the continuation of the Dollar Thrifty coverage.
    (3) We would also make any Employee Assistance Plan counseling 
available to the returning Military employee to aid them in their 
transition back to civilian life.

    The employees of Dollar Thrifty and our culture are what we find 
makes the difference for our employees going on extended Military 
leave, and that is something that can't be implemented by a formal 
policy.
    For several years now, DTG has taken an active stance toward our 
overall culture and employee morale. We have a set of core values that 
we aspire to. These values are (1) our customers, (2) our people, (3) 
continuous improvement, and (4) results. To assist us in realizing 
these values, we have over 150 employees that are Cultural Ambassadors. 
These employees go through formal training on the basics you would 
expect, such as hiring skills, new employee orientation, new employee 
retention, employee recognition, and employee communications. However, 
they are also trained on ``Bring on The Fun,'' a program that entails 
hosting fun events to build morale and team spirit.
    It is against this backdrop that our employees choose, on their 
own, to correspond with co-workers on military leave, post pictures in 
the hallways, hold ``Good Luck & Godspeed'' going away parties and more 
importantly, ``Welcome Back'' parties.
    It is our managers who know and recognize what military experience 
and assignments do in the way of developing an employee and their 
leadership skills. These managers in turn tend to find new assignments 
and promotional opportunities for employees returning from military 
services. An example is the case of Marine Corporal Blake Milam, who, 
shortly after his return, applied for and received a promotion to a new 
position.
    There are always areas of opportunity where we can improve at DTG, 
specifically in the treatment of our employees who go on military 
leave, or are involved with the Reserves. That is the nature of a 
company who is led by a Marine--our CEO, Gary Paxton--who demands we 
keep raising the bar.
    Overall, we are extremely grateful to all the men and women of our 
armed services and we honor their service. Dollar Thrifty is especially 
proud of those service members that are also our employees and we are 
humbled beyond all words for the nomination submitted by Corporal 
Milam. The resulting award from the Secretary of Defense Employer 
Support Freedom Award was unexpected and certainly makes us want to 
confirm that we are truly doing everything we can for these honorable 
men and women. When you couple this recognition with the 2007 National 
Defense Transportation Association (NDTA) Distinguished Service Award 
and the 2006 ESGR Pro Patria Award, we at Dollar Thrifty are simply 
overwhelmed by the attention and recognition being given to us for what 
seems to us as simply ``doing the right thing.''
    I believe that the hearing of this committee will also clearly 
showcase the ``right thing to do'' with regards to the USERRA and our 
service men and women.
    In closing, permit me to return to my earlier comments on The 
Freedom Award, and why we were so proud to have received it. Recipients 
of this award were nominated by their employees, who voluntarily serve 
in the National Guard and Reserve, and who recognized the exceptional 
support their company gave them above the requirements of Federal law.
    I'd like to read you now the letter that Marine Corporal Blake 
Milam wrote on our behalf in his nomination of our company:

          I was deployed with Weapons Co. 1st Battalion, 25th Marines, 
        to Fallujah, Iraq for about 8 months. I was the radio operator 
        for my platoon. Basically, for the Battalion, I was the voice 
        of ``Whiskey 3'' and for Whiskey 3, I was the voice of the 
        Battalion. We pretty much operated as a police force in 
        Fallujah.
          When I got off active duty and returned to reserve status, I 
        already had my old job at Dollar Thrifty waiting for me. All my 
        fellow employees had a welcome home party for me at work--cake, 
        balloons and a huge card. I even had department directors and 
        ``big wigs'' I had only heard of come down to shake my hand. I 
        had been activated on December 1, 2005 and was back to work in 
        November 2006. I was given two raises and a healthy profit 
        share that quickly went to bills and relieved much of my 
        stress. Overtime was always there when I asked. My fellow 
        employees even took time out of their day to help me re-learn 
        my job!
          In December, I applied for a new position in the company and 
        was moved up to where I am now in January. Even now, almost a 
        year later, I still have people coming up to me asking, ``What 
        did you do over there?'' I just smile and say, ``I did my time 
        and came home.'' Honestly, who wants to hear all that? It's 
        almost surreal to think that a year ago I was shooting and 
        being shot at daily. If I didn't have this job at Dollar 
        Thrifty Automotive Group--if I had to look for a job with that 
        many bills and that much stress and that much happening all at 
        once--I wouldn't 't be where I am today. And I'm very happy 
        where I am today.
          That's why I nominated my company for the Freedom Award . . . 
        for making my transition back to the real world possible.

            Sincerely,
                                  Marshall ``Blake'' Milam.
                                 ______
                                 
    Thank you Corporal Milam. We were just doing our duty as well.
    Our President and CEO of Dollar Thrifty, Gary Paxton, said the 
following about this nomination and award, ``Dollar Thrifty is honored 
to receive this prestigious award on behalf of all its employees. For 
all they do for us, we want all our Guard and Reserve members to know 
we will steadfastly support them should they be called to duty.''
    Again, thank you for inviting me here today, and I look forward to 
answering any questions any of you may have.

    The Chairman. Well, thank you all very much. This has been 
a very impressive panel. Where is Avis and Hertz, Mr. Halbrook?
    [Laughter.]
    I'll tell you, I don't rent, but I do on some occasions, 
and I'll be knocking on the door there for----
    Mr. Halbrook. Thank you, Senator.
    The Chairman. That's extraordinary, it's an extraordinary 
example. And we might write to these other companies and ask 
them what they are doing and mention it. I certainly will. I'll 
see if we get a little bipartisan support, just inquire on 
that. It's extraordinary.
    Thank you, Tammy Duckworth, again, for your service to the 
country, and also for the recommendations. I think we heard 
from Jack Reed about these cross communications. They shouldn't 
be all that complex. We're working very closely with the 
Veterans' Committee on recommendations, since we have--as we 
mentioned at the opening--shared responsibility.
    We thank Lieutenant Colonel Duarte for taking on and 
continuing on and believing in his rights and representing 
workers and then being able to inspire us. I think, as Senator 
Murkowski pointed out, if this happens to one, it happens to 
all of us. And you've certainly demonstrated--listening to your 
story--a devotion and service to the Marines, a family that's 
been dedicated, and your own perseverance, when others have 
said that you didn't have the goods on it. And it's an 
inspiring story and one that shouldn't have to be replicated. 
We've seen the explosion of private counsel in these areas and 
it's just not right. We ought to be able to try and get so that 
every service man and woman has the information and the help 
and the assistance and hopefully the kind of reception Mr. 
Halbrook has shown.
    Thank you, Lieutenant General McCarthy. We're working very 
closely with your Reserve Officers Association and with the 
other organizations as well. And you've got a lot of very good 
suggestions and ideas. As a member of the Armed Services 
Committee, I can think of some things we might be able to do 
and take some of your recommendations. We'll work with those 
members, Senator Reed, and we'll work with the veterans and 
we'll try and not let this slip through.
    We'll have maybe a few general kinds of questions. You've 
been enormously helpful and it's been very important and 
enormously constructive. I think our hearing has pointed out 
some of the challenges and some of the problems. I think what 
echoes in our ears is, Senator Murkowski's individual that had 
fallen through the cracks. Lt. Colonel Duarte has fallen 
through. The point that Jack Reed makes about the growth of 
homelessness, and all the challenges we face. And, we see when 
it can be done right and what a difference it makes.
    I'm sure that your company, in terms of morale, in terms of 
productivity of those service men who have come back and are 
working, has expanded and increased. And the company deserves 
great credit.
    So, we've learned about some of the challenges and about 
some of the hope. And we are going to build on those more 
hopeful indicators.
    Senator Murkowski, anything final you want to say before--
--
    Senator Murkowski. I just also want to echo what the 
Chairman has said about thanking you for your testimony. It was 
great to hear Major Duckworth describe what the State of 
Illinois is doing and their specific efforts.
    You think about the service man who is going back into the 
civilian workplace. How we can help them craft a resume that 
says what they have really done? And your comments at the 
beginning of your testimony, Major, about how our service 
members know that lives hang in the balance if their work is 
lacking in quality. None of the rest of us could ever possibly 
be expected to do and yet, this service man is doing that on a 
daily basis. And, we've got to figure out a way that we can 
help that--help them make that transition so that credit for 
what they have done is truly given.
    So again, I thank you all for your efforts. Thank you.
    [Additional material follows.]

                          ADDITIONAL MATERIAL

                   Prepared Statement of Senator Enzi

    Thank you, Senator Kennedy, for holding this hearing today. 
Employers of all sizes know that a skilled workforce is 
essential to being competitive in the global economy.
    Our businesses must have the workers they will need to be 
competitive. Strengthening America's competitiveness requires 
that students and workers of all ages have the opportunity to 
gain the knowledge and the skills they will need to be 
successful throughout their lives, regardless of their 
background. Education and training are integral to meeting this 
goal.
    A substantial portion of our workforce now finds itself in 
direct competition for jobs with highly motivated and often 
well-educated people from around the world. We can no longer 
afford to ignore that over the past 30 years, one country after 
another has surpassed us in the proportion of their entering 
workforce that has the equivalent of a high school diploma. We 
used to have the best-educated workforce in the world, but that 
is no longer true.
    We must re-build, strengthen and maintain our educational 
pipeline, beginning in elementary school. We need to find ways 
to encourage high school students to stay in school and prepare 
for and enter high-skill fields such as math, science, 
engineering, health, technology and critical foreign languages. 
We must also strengthen the programs that encourage and enable 
citizens of all ages to enroll in postsecondary education 
institutions and obtain or improve knowledge and skills. The 
decisions we make about education and workforce development 
will have a dramatic impact on the economy and our society for 
a long time to come.
    The present situation is discouraging. Every day in the 
United States, 7,000 students drop out of school. We must deal 
with the situation head on--we cannot allow students to 
``waste'' their senior year, and graduate unprepared to enter 
postsecondary education and a workforce focused on skills and 
knowledge. Unless high schools are able to graduate their 
students at higher rates than the 68 to 70 percent they 
currently do, more than 12 million students will drop out 
during the course of the next decade. The result long term will 
be a loss to the Nation of $3 trillion, and as you can imagine, 
even more in terms of the quality of life for those dropouts.
    To remain competitive in a global economy, we cannot afford 
to lose people because they do not have the education and 
training they need to be successful. Thirty years ago the 
United States was proud to claim 30 percent of the world's 
population of college students. Today that proportion has 
fallen to 14 percent and is continuing to fall.
    Demographics are responsible for some of this shift--keep 
in mind that if India alone educates just one-third of its 
population, it will have more educated people than the total 
population of the United States. We have control over whether 
we continue to let so many students fall through the cracks and 
out of the education and training pipeline.
    To be successful in the 21st century economy we need to 
challenge our high school students more, increase high school 
graduation rates, reduce remedial education at the college 
level, increase student retention and completion rates for 
students in college, reduce barriers to adult worker 
participation in postsecondary education and training. Lifetime 
education and training is no longer an option, it is a 
necessity--for individuals, for employers and for the economy.
    Innovation provides a way for individuals to create their 
own jobs or jobs for others. That is one of the primary reasons 
I began my annual free Inventors Conferences in Wyoming in 
2004--to encourage and provide resources to individuals to 
impact the economy with their ideas. Too often, young people in 
Wyoming start thinking at too early an age that they will have 
to leave the State to find a good job. I offered another 
suggestion--create your own product--create your own job. That 
kind of mindset will encourage creativity and begin to tap the 
well of good ideas so many of our State's young people have to 
share. We can attract businesses, but we can grow our own new 
businesses too. Good ideas generate good jobs and that is 
something that will keep our kids at home and attract new 
businesses to our State.
    I have had terrific role models, such as Dean Kamen, speak 
at my conference. I am hosting the Inventors Conference again 
in Wyoming this April. We need to encourage this kind of 
activity because America no longer holds the sole patent on 
innovation. Inspired by our example, countries such as China, 
India and South Korea have invested heavily in education, 
technology and research and development. Billions of new 
competitors are challenging America's economic leadership. In 
2005, foreign-owned companies were a majority of the top 10 
recipients of patents awarded by the U.S. Patent and Trademark 
Office.
    In addition, we need to look at how we address immigration. 
Many people are concerned about illegal immigration and the 
impact legal immigration could have on their employment. Many 
employers have a need for trained and educated employees and 
are unable to fill these positions with domestic employees. The 
companies are often faced with the choice of hiring foreign 
workers or considering moving their operations overseas.
    In the high tech sector and across the Nation, I believe 
employers must be a partner in ensuring that employees are in 
the United States legally and holding the proper visas and work 
permit. It is clear, however, that the current system is not 
working. The complicated and overly burdensome process for 
visas and permanent residency cards serves as a disincentive to 
both the employer and the employee.
    Initial efforts have been taken to address the problems 
with the H-1B visa process and immigration in general but no 
final action has been set. Congress has considered legislation 
that specifically addresses foreign workers with masters or 
higher degrees from accredited U.S. universities to return or 
stay in the United States. I believe we should continue to work 
on this issue in the context of larger immigration reform as 
well in the context of our international competitiveness.
    While we work to make our domestic workforce better trained 
to fill high-tech jobs, we must ensure that our high-tech 
companies remain in the United States.
    We have our work cut out for us to meet the challenge of 
ensuring that America expands its competitive edge. We need a 
plan. We need to ensure opportunities are available to all 
Americans, because our future depends on widely available and 
extensive knowledge and training and a commitment to 
excellence. Strong partnerships and alignment among K-12 
schools, institutions of higher education, business and 
government will help us meet the needs.
    In the HELP Committee, we are using this opportunity to 
shape policy and strengthen the education and training 
pipeline. Through the reauthorization of Head Start, No Child 
Left Behind, the Higher Education Act and the Workforce 
Investment Act (WIA) we can make sure that every individual has 
access to a lifetime of education and training opportunities 
that provide the knowledge and skills they need to be 
successful and that our employers need to remain competitive.
    As important as education is to the knowledge and skills of 
our workforce, I want to emphasize the need to reauthorize the 
Workforce Investment Act. It strengthens connections with 
economic development, links training to the skill needs of real 
jobs, and supports greater business engagement.
    In a global economy where innovation and technology have 
created an increasing demand for skilled workers, access to 
training that prepares workers to meet these challenges is 
essential. The skills needed to keep current with the 
requirements of the 21st century workplace are changing at an 
ever increasing pace. Workforce development is not only hiring 
the right worker, but knowing how to help them keep current 
with escalating skill requirements and advances in their 
occupations. By helping low-wage workers advance in their jobs, 
entry level jobs will open up and more opportunities will be 
created. Our efforts in reauthorizing the Workforce Investment 
Act must ensure that it achieves this goal and is relevant to 
both employers and workers.
    I look forward to hearing the contribution of our witness 
to this vital conversation.

                  Prepared Statement of Senator Murray

    Thank you, Mr. Chairman, for calling today's hearing on an 
issue that's vitally important to the men and women who serve 
in our National Guard and Reserve. Before I go on, I want to 
thank these brave heroes for their tremendous service to our 
country. They continue to play a very important role in our 
Nation's security here at home and abroad. They step in when 
local communities need them most, and they have performed 
admirably under enormous pressure in the middle of a civil war 
in Iraq. We owe them a debt of gratitude.
    As Veterans' Day approaches, I think it's very appropriate 
that we examine whether we're keeping our promise to our 
returning heroes. Part of that promise is making sure our Guard 
and Reservists transition back to the civilian workforce 
successfully when their service is complete.
    Thirteen years ago, Congress enacted USERRA to protect the 
employment rights of returning veterans. But as the war on 
terror has escalated, so has the mission of our Nation's Guard 
and Reserve. And the challenges they face are more demanding 
than ever. It's vital that we ensure the system is working for 
them, and that's why we're here today.
    Unfortunately, I continue to hear countless stories from 
veterans in my home State of Washington who have struggled to 
find good, family-wage jobs, and the training they need to 
secure them. Too many veterans are struggling to support their 
families after demobilization. That's just not right--yet the 
problem isn't getting smaller.
    In my home State of Washington:

     Nearly 8,000 Guard and Reservists are currently 
serving;
     More than 5,500 have served in Afghanistan and 
Iraq since the war began;
     And we've recently heard that almost 2,800 Guard 
members are scheduled to deploy in 2008.

    Washington, like many other States, is responding to these 
obstacles with innovative programs, such as the Hire-A-Vet 
Challenge, which encourages businesses to hire returning 
National Guard and Reservists.
    But more needs to be done.
    After more than a decade of having USERRA on the books, I'm 
frustrated that too many veterans are still running into 
obstacles when seeking protection.

     Too many are unsure of their employment and re-
employment rights under this law.
     Too many employers are unsure of their 
responsibilities under the law.
     And those who do exercise their rights are still 
facing unnecessary delays and a complicated bureaucracy.

    We have to find a way to make this complex system as easy 
to navigate as possible for these service members.
    First, we have to do a better job of outreach and education 
for veterans and their employers. To make the system 
successful, both groups have to understand their rights and 
responsibilities.
    We also have to make the system more user-friendly. 
Veterans who seek to exercise their rights should never run 
into a closed door or be shut down by a complicated 
bureaucracy. I know we have made some improvements over the 
years, but we have to find a way to simplify the system and 
make it work for service members whose rights have been 
violated. I'm looking forward to hearing recommendations from 
our witnesses about how we can make this happen.
    Mr. Chairman, as I've said many times before, I believe 
that how we treat our veterans when they come home says a lot 
about the character of our Nation. These brave men and women 
who face dangerous and stressful situations on the battlefield 
and here at home shouldn't have to worry about their jobs while 
they're away. And they're counting on their government to keep 
its promise.
    So we have a big mission, Mr. Chairman, and I look forward 
to hearing from our witnesses about how we can make the 
transition from soldier to citizen a smoother one.
                          U.S. Department of Labor,
                                     Washington, DC. 20210,
                                                       May 2, 2008.
Hon. Edward M. Kennedy, Chairman,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC. 20510.

    Dear Mr. Chairman: Thank you for the opportunity to testify before 
the Senate Health, Education, Labor, and Pensions Committee hearing on 
``Protecting the Employment Rights of Those who Protect the United 
States,'' held on November 8, 2007.
    The responses to the committee's additional questions for the 
record are enclosed.
    Thank you for your continued support of the employment rights of 
our Nation's service members and veterans.
            Sincerely,
                                     Charles S. Ciccolella,
                      Assistant Secretary for Veterans' Employment 
                                                      and Training.
                                 ______
                                 
  Response to Questions of Senator Kennedy, Senator Enzi, and Senator 
                    Murray by Charles S. Ciccolella

                      QUESTIONS OF SENATOR KENNEDY

    Question 1. What do you believe are the main reasons why 44 percent 
of Reserve Component members who filed USERRA complaints with DOL VETS 
said they were dissatisfied with the assistance they received?
    What are you doing and what will you commit to doing to improve 
service members' satisfaction with the assistance they receive from DOL 
VETS with their USERRA complaints?
    Answer 1. We share your concern over the dissatisfaction rate 
reported by Reservists who responded to the Department of Defense (DOD) 
Status of Forces Survey, and asked DOD for additional information 
regarding those responses. According to DOD, two-thirds of those who 
reported dissatisfaction with the handling of their USERRA complaints 
also said that their claims were denied or rejected; 9 percent reported 
that their complaints was resolved in their favor. On the other hand, 
four-fifths (80 percent) of those who were satisfied with the handling 
of their formal USERRA complaints reported their complaints were 
resolved in their favor, and just 4 percent reported their complaints 
were denied or rejected.
    Individuals who file formal complaints, by definition, believe 
their complaints have merit. It therefore is not surprising that the 
majority of dissatisfied claimants are individuals whose claims are 
denied. This finding underscores the importance of better educating 
claimants on the provisions of the law and engaging them as active 
participants during USERRA investigations.
    VETS recognizes the importance of striving constantly to improve 
the services it offers to service members and others. To that end, VETS 
began conducting regional training conferences for investigators in 
every VETS region in fiscal year 2007 and these efforts continue in 
fiscal year 2008. In addition, VETS has incorporated customer service 
techniques into these training conferences and is exploring including 
such techniques in its existing new investigator 2-week classroom 
training curriculum.
    VETS is also aggressively pursuing steps to reduce the time it 
takes to investigate, resolve, and close cases. While nearly three-
quarters of USERRA cases are closed within 60 days or less, some cases 
still take too long to process. To address this, VETS has implemented 
additional supervisory control of investigations, with Regional 
Administrators and Senior Investigators now being made aware of all 
cases in their regions that have been open for over 90 days, as well as 
cases where a claimant has requested referral to either the Department 
of Justice (DOJ) or the Office of the Special Counsel (OSC). In 
addition, the Department has funded an independent evaluation of the 
cost effectiveness of USERRA's investigation process that will be 
completed in fiscal year 2009. Following an independent analysis of 
each step of the investigatory process, results of the evaluation 
should help VETS improve the quality and timeliness of its USERRA case 
management.

    Question 2. What steps are you taking to reduce the bureaucratic 
delays for investigating, resolving, and referring USERRA complaints 
that the Government Accountability Office (GAO) has identified, 
particularly when cases are referred to the Office of Special Counsel 
or the Attorney General?
    Answer 2. As previously reported to your office, of the 1,239 cases 
that were both received and closed by VETS in fiscal year 2006, nearly 
three-fourths (72 percent) were closed in 60 days or less, and only 6 
percent took over 120 days. We are aggressively pursuing steps to 
reduce delays that occur in that minority of cases.
    Each month, VETS' Regional Administrators and Senior Investigators 
are made aware of those cases in their region that have been open for 
over 90 days, as well as cases where a claimant has requested referral 
to either the Department of Justice (DOJ) or the Office of the Special 
Counsel (OSC). In February 2008, VETS implemented an updated USERRA 
Operations Manual that clarifies procedures for investigating, 
attempting to resolve and referring USERRA cases. Regional training 
covering these procedures is underway for all investigators, and 
distance learning modules are under development. In addition, results 
from the independent evaluation noted above will support VETS' efforts.
    It is important to note that the causes for delays are not solely 
bureaucratic. For example, our investigators occasionally are presented 
with an opportunity to engage in negotiations with the employer during 
the referral process, which sometimes has lengthened that process. We 
have recently clarified to our investigators, though, that once a 
claimant asks for referral, any continued efforts to resolve the claim 
should take place concurrently with processing the referral, and should 
in no way slow the referral process. In fact, such efforts are to be 
undertaken only under very strict deadlines. Both DOJ and OSC have 
indicated that they agree with that strategy.

    Question 3. Please describe the appropriations and resources 
dedicated to the enforcement of USERRA within DOL VETS and the Office 
of the Solicitor, including the number of full-time employees (FTEs) 
assigned to USERRA enforcement, over the past 8 years.
    Does the fiscal year 2007 appropriations level enable the 
Department of Labor to effectively and expeditiously investigate, 
resolve, and refer USERRA cases?
    Do you believe that the Department needs additional resources to do 
so, and, if so, how much more funding does the Department need for 
USERRA enforcement?
    Would additional funding help the Department to investigate, 
resolve, and refer USERRA cases quickly?
    Answer 3. VETS maintains a corps of over 100 trained investigators 
in our Regional and State offices throughout the country. These 
investigators are responsible for USERRA as well as other issues 
related to veterans' employment. In addition to our investigators, VETS 
has a team of specialists at the National Office who are dedicated to 
compliance and investigations activities, and in 2006 we added six 
Senior Investigators--one in each Region--who are dedicated exclusively 
to compliance and investigations.
    The Office of the Solicitor offers a nationwide network of 
attorneys who contribute to the Labor Department's USERRA enforcement 
efforts. More than 200 agency attorneys in SOL's 14 regional and branch 
offices provide trial litigation services and advice under most Labor 
Department administered Federal laws. Because the Department 
administers well over 100 laws, a regional attorney's USERRA workload 
at any given time generally will be relatively small; however, the 
regional attorneys' litigation expertise enables them to provide 
substantial support to VETS' investigations. At SOL's national office, 
a six-person group of attorneys in the Employment and Training Legal 
Services Division provides overall advice and guidance on USERRA 
matters to VETS and to SOL's regional staff as appropriate.
    While the overall number of USERRA cases handled by SOL attorneys 
is small compared to the total number of cases that arise in all other 
DOL-administered programs, SOL has taken care to develop a cadre of 
individuals within theorganization who retain extensive USERRA 
experience and knowledge. This includes a supervisory counsel for 
USERRA matters in the national office, and designated experts in each 
regional office.
    The following table reflects VETS and SOL full time equivalent and 
other resources dedicated to USERRA activities since fiscal year 2000.


----------------------------------------------------------------------------------------------------------------
                                                                                  VETS                   SOL
                                                                    --------------------------------------------
                                                                                   Travel and other
                            Fiscal year                              FTE devoted  USERRA costs (FTE  FTE devoted
                                                                      to USERRA        cost not       to USERRA
                                                                                      included)
----------------------------------------------------------------------------------------------------------------
FY 2000............................................................           69         $1,285,906          1.9
FY 2001............................................................           62         $1,196,849          2
FY 2002............................................................           80         $1,592,097          3.6
FY 2003............................................................           78         $1,567,532          4.2
FY 2004............................................................          101         $2,085,581          4.2
FY 2005............................................................          106         $2,329,049          6.8
FY 2006............................................................           89         $1,628,471          4.3
FY 2007............................................................           85         $2,327,970          3.7
----------------------------------------------------------------------------------------------------------------

    The resources available are sufficient for the effective 
administration of our USERRA compliance and investigations program. 
However, the Department will not hesitate to allocate additional 
resources to USERRA, should that become necessary.

    Question 4. Prior to the hearing, members of my staff went to the 
Department of Labor to review USERRA cases files. They found that some 
service members were not given an opportunity to review or respond to 
employers' allegations before the DOL closed their cases and informed 
the service members that their cases lacked merit.
    a. Does the Department of Labor require its investigators to give 
each service member an opportunity to review and rebut any factual 
allegations made by his or her employer before the case is determined 
to lack merit?
    b. What is the agency doing to ensure that every veteran is 
afforded an opportunity to present his or her side of the story?
    c. How often does the Department have its investigators interview 
the witnesses of employers at work sites, rather than accepting 
employers' factual allegations at face value?
    d. Will the Department commit to increasing the frequency by which 
its investigators interview witnesses at work sites?
    Answer 4. Labor Department investigators have been instructed that 
claimants are to be told about employer allegations that might impact 
the outcome of their case, and that they are to be given the 
opportunity to rebut those allegations. We have reiterated and 
clarified this important point to our investigative staff in the 2008 
USERRA Operations Manual, which VETS released in February 2008. The new 
Operations Manual now states that ``the VETS investigator should 
contact the claimant to describe the employer's point of view. The 
claimant must be informed of and given the opportunity to rebut any 
relevant allegation that may affect the outcome of his/her case.'' 
However, a limited amount of employer-provided information, such as 
payroll and personnel records of comparable employees, is not made 
available to claimants, and claimants are not provided with information 
that would disclose the identity of informants. Investigators are 
receiving training on the new manual.
    VETS does not accept at face value allegations made by either 
employers or claimants. Rather, our investigators seek out facts and 
evidence that are relevant to the USERRA issues that are alleged in a 
claim. The Department emphasizes in-person interviews and fact 
gathering, particularly in situations in which an investigator has 
doubts about the credibility of an individual or the evidence that is 
provided. Onsite interviews are conducted whenever deemed necessary by 
the VETS investigator. The USERRA Operations Manual is very clear that 
face-to-face interviews and evidence collection are important tools 
available to our investigators. Specifically, the manual states, ``An 
onsite investigation should be conducted when the investigator doubts 
the veracity of information provided by the employer or otherwise 
believes an onsite investigation would be beneficial.'' In addition, 
supervisors or Senior Investigators conduct open case reviews of all 
ongoing investigations. Any doubts about the reliability of information 
provided by an employer that surfaced during that review could lead to 
an onsite investigation.

    Question 5. The February 2007 GAO report found that the Department 
of Labor, Department of Defense, and Office of Special Counsel do not 
have a consistent way to record, analyze, or report the disability-
related USERRA cases.
    Since the report, have these agencies implemented a uniform system 
for recording, analyzing, and reporting disability-related complaints?
    What are the agencies doing to ensure that accurate numbers of 
disability claims are reported to Congress?
    If this system is not fully in place now, then when will this 
process be completed?
    Answer 5. Cases involving disability-related issues under USERRA 
arise in the context of obtaining the appropriate reemployment 
position, and the employer's obligation to provide ``reasonable 
accommodations.'' USERRA provides that employers must provide 
reasonable accommodations to allow service members who incurred a 
disability in service to be promptly reinstated in the positions of 
seniority, status, and rate of pay they otherwise would have attained 
had they remained continuously employed, or in some cases the nearest 
approximate position.
    Since GAO published its February 2007 report, VETS has undertaken 
measures to ensure that cases involving reasonable accommodations for 
service-incurred disabilities are properly recorded in its USERRA 
Information Management System (UIMS). To that end, our investigators 
have received additional training to ensure that those issues are 
properly identified, and managers and Senior Investigators in each 
region review every case, including those involving service-incurred 
disabilities, to ensure proper case processing and issue 
identification.
    In addition, VETS and DOD staff have worked closely together to 
ensure that their systems of reporting data on USERRA cases involving 
reasonable accommodations for service-incurred disabilities are 
compatible, and have cross-walked codes used by our respective agencies 
to identify other issues as an initial step toward having uniform codes 
for all USERRA issues. We expect this process to be complete in time 
for the USERRA fiscal year 2008 Annual Report to Congress.
    OSC and DOJ involvement with USERRA cases is limited to a 
relatively small number of referrals they receive each year from VETS. 
The USERRA issues, including disability issues, involved in the cases 
they receive from VETS will have already been identified.

    Question 6. How many full-time employees do DOL VETS and the Office 
of the Solicitor dedicate to resolving the complaints of disabled 
service members?
    What specific training and resources do those employees receive to 
enhance their ability to assist disabled service members?
    Answer 6. All VETS investigators are trained to identify USERRA 
issues involving reasonable accommodations of disabilities; 
consequently no DOL employees are specifically dedicated to resolving 
USERRA complaints of disabled service members. As discussed in the 
previous response, USERRA cases involving disability-related issues 
arise in the context of obtaining the appropriate reemployment 
position, and the employer's obligation to provide ``reasonable 
accommodations.'' A significant portion of the 2-week classroom 
training provided to VETS investigators involves the provisions of 
USERRA with regard to reasonable accommodation of disabilities and the 
provisions of the Americans with Disabilities Act.

    Question 7. The Secretary of Labor, in consultation with the 
Attorney General and the Office of Special Counsel, prepares and 
transmits a USERRA annual report to Congress on the number of 
complaints filed, the nature and status of each complaint, and if any 
patterns of violation are apparent. The report for fiscal year 2006 was 
due to Congress on February 1, 2007. To date, the report has not yet 
been filed.
    Why is the Department of Labor's Annual Report to Congress over 9 
months late? When will the Department transmit this report to Congress? 
What will the Department do in the future in order to prevent such 
delays in its reporting?
    Answer 7. The fiscal year 2006 USERRA Annual Report was transmitted 
to Congress on February 5, 2008. We are pleased that some of the 
reporting issues identified by the GAO were addressed in the 2006 
report, and that the fiscal year 2007 report will fully address GAO's 
concerns with the reporting. Because of the lag time involved in 
finalizing our own data for the report, and of coordinating the 
submissions of three other agencies, we ask that the Congress consider 
changing the due date to June 1 of each year.

    Question 8. Of the nearly 1,400 complaints the Department of Labor 
received in 2006, it referred only 24 cases--less than 2 percent--to 
other agencies for prosecution that year.
    Why is the Department referring so few cases for prosecution each 
year? With tens of thousands of Reserve Component members experiencing 
potential USERRA violations, why are only dozens of cases being 
referred for litigation in Federal court and before the Merit Systems 
Protection Board?
    Answer 8. As reported in our fiscal year 2006 USERRA Annual Report, 
DOL referred 81 cases to DOJ and 11 to OSC. Two factors significantly 
influence the number of cases that the Labor Department refers to DOD 
and OSC each year. First, cases are referred only if the Department is 
unable to achieve a resolution that is acceptable to the parties. VETS' 
goal, of course, is to successfully resolve USERRA issues between the 
service member and the employer without the need for litigation because 
such resolutions are more likely to preserve the claimant's employment 
relationship with his or her employer.
    Of the 1,377 cases it closed in fiscal year 2006, 414 (30 percent) 
were successfully resolved by VETS in the claimant's favor (claim 
granted or settled). The remaining 70 percent were either withdrawn by 
the claimant, administratively closed, found to have no merit, or were 
referred to DOJ or OSC. OSC's reported successful resolution rate for 
cases it received under the demonstration project in fiscal year 2006 
was 27 percent, roughly comparable with VETS' success rate for that 
year. The second limiting factor is that claimants--not the 
government--control whether their claims are withdrawn, referred for 
prosecution, or pursued through private counsel.

    Question 9. A recent GAO report found multiple inaccuracies in the 
USERRA data that the Department of Labor reported to Congress. The 
report found that (1) DOL's Annual Report inflated the number of claims 
it had completed, and (2) data on the outcomes of claims was ``not 
reliable.''
    What has the Department of Labor done to address these reporting 
problems? How can you reassure this committee that the data the 
Department is sending to Congress is accurate?
    Answer 9. VETS takes its reporting responsibilities very seriously. 
In response to the findings and recommendations in GAO-07-907, VETS 
added a number of steps to improve the accuracy of its claim numbers 
and claim outcomes data. The inaccuracies GAO noted in claim numbers 
stemmed largely from since-discontinued administrative practices that 
required single claims to be counted more than once in certain 
circumstances. For example, if, after opening a case in one state, VETS 
learned that the employer was located in a second State, the case file 
would be closed administratively in the filing State and reopened in 
the employer's State. Beginning with the USERRA fiscal year 2006 Annual 
Report to Congress, VETS eliminated this source of duplication by 
counting such openings and reopenings as a single case. As a result, 
the fiscal year 2006 report includes nine fewer cases than would have 
otherwise been reported.
    Another source of duplication identified by GAO is where a case is 
closed and subsequently reopened because the claimant provided new and 
material evidence on the original issues of the case. Beginning with 
the fiscal year 2007 USERRA Annual Report, VETS will not count such 
reopened cases as unique cases, but will identify them as cases 
reopened from previous years. We believe these two modifications in 
reporting address GAO's concerns regarding the number of cases reported 
by VETS.
    VETS also has taken two important steps to address GAO's concerns 
about case outcomes data. First, VETS is emphasizing as part of its 
investigatory training the importance of properly identifying and 
reporting case outcomes. This training is underway. Second, VETS has 
increased its oversight of USERRA cases by supervisors and senior 
investigators so as to ensure that correct case outcomes are 
appropriately recorded in the USERRA database and that reports 
generated from the database are accurate.

    Question 10. During the hearing, you discussed the case of Robert 
Traut, which has been open at DOL VETS for 7 years, and stated that the 
case would be referred to the Office of Special Counsel as soon as 
possible. Has this case been referred yet?
    If the Department, has not yet referred the case, when will the 
Department refer the case, and what steps is it taking to do so?
    What could the Department have done differently to process Traut's 
case faster, and what actions will you take to ensure that cases like 
Mr. Traut's do not languish for years and years at the Department of 
Labor?
    Answer 10. The Department of Labor referred the Traut case to the 
Office of Special Counsel on November 16, 2007.
    VETS agrees that Mr. Traut's case should have been handled more 
expeditiously and has taken steps to ensure USERRA cases are handled as 
promptly and efficiently as possible. Perhaps the most important lesson 
learned from the Traut case is the importance of close supervisory 
oversight of those who investigate USERRA allegations. With that in 
mind, VETS has created a cadre of senior investigators whose primary 
responsibility is to oversee the case investigation and referral 
process in their respective regions, paying particular attention to 
requests for referrals that have been pending for more than 15 days. In 
addition, with the February 2008 implementation of the new USERRA 
Operations Manual, VETS is requiring higher-level review of every 
single USERRA case before the agency issues a closing letter. VETS 
believes that these two common-sense improvements in case processing 
will help ensure that USERRA claims receive the attention they deserve. 
Finally, a key question of the independent study that will begin later 
this fiscal year is what can be done to ``error-proof'' the 
investigative process.

    Question 11. Only 23 percent of Reserve Component members who 
report reemployment problems seek some type of assistance, including 
from DOL VETS. In your opinion, why are so few service members 
contacting DOL VETS for assistance?
    Do you agree that some service members do not seek assistance from 
DOL VETS because they have heard about the delays in having their cases 
processed?
    Answer 11. There are a number of reasons that not all service 
members who report having reemployment problems seek assistance from 
VETS. In many cases, they may not want to be seen as ``causing 
problems'' for their employer or they may not opt for help from the 
government because they are ready to move on to other employment 
opportunities. It is also likely that some have heard that looking for 
help from the Federal Government can be time consuming. Others may 
elect to pursue their statutory rights through private counsel and 
private litigation. In any event, it is important that service members 
retain confidence in the government's ability to intervene, as 
appropriate, on their behalf when USERRA rights have been violated. It 
is therefore imperative that DOL and our partners at ESGR, DOJ and OSC 
execute our respective USERRA responsibilities effectively, and that we 
all consistently convey this message to service members: ``Welcome 
home! We're here to help!''
    Additionally, we find that DOD's Employment Support for the Guard 
and Reserve (ESGR) provides USERRA assistance to thousands of service 
members each year and much of the time they are able to address 
employment and reemployment issues without requiring service members to 
file a formal complaint with VETS. As a result of the assistance that 
ESGR provides, only a fraction of USERRA issues become claims filed by 
service members through VETS.

                        QUESTION OF SENATOR ENZI

    Question 1. Some of the written testimony submitted for this 
hearing relates a personal experience wherein a DOL-VETS ``program 
assistant'' informed a veteran that he had no USERRA claim because he 
``did not hear someone from [his company] tell (him) he was terminated 
for military reasons,'' Is this the practice of VETS? What kind of 
record would exist of such an interaction?
    Answer 1. Such a response would certainly be contrary to the 
training VETS provides to its investigators, and contrary to our 
procedures for handling veterans' concerns regarding USERRA. If such an 
interaction occurred during a case investigation, it would be required 
to be documented in the case file. The USERRA Operations Manual clearly 
states, ``All VETS contacts and attempted contacts with the claimant, 
the employer, the military unit, and all other persons must be 
completely documented and included in the case file.'' On the other 
hand, if the interaction occurred when VETS was providing informal 
technical assistance to an individual who had not filed a complaint--
something VETS does thousands of times each year--there may be no 
record of the interaction.

                      QUESTIONS OF SENATOR MURRAY

    Question 1. In their written testimony, GAO reported that some 
claims are taking close to 2 years to process in their entirety. Why 
are USERRA claims taking so long to resolve at DOD, DOL, and OSC? What 
can each of your agencies do to make this process more efficient and 
effective for veterans?
    Answer 1. The Veterans' Employment and Training Service (VETS) is 
committed to providing the best possible service to the public in 
carrying out its investigative responsibilities under USERRA. Our 
primary goal is to secure for our service men and women all their legal 
entitlements and we are constantly looking for ways to do so more 
expeditiously. While some USERRA claims take longer to process than 
others, the average claim is processed and closed within 53 days. 
Actions described in 1.b, below, will be evaluated by independent 
process experts later this year. VETS is soliciting recommendations of 
changes to the investigative process that are expected to improve 
quality, timeliness and cost effectiveness.
    There are several factors that can lengthen the time it takes VETS 
to fulfill its obligations with respect to a USERRA claim. Sometimes 
the claimant may become unable (or unwilling) to participate in the 
investigation for a period of time. For example, the claimant might be 
called to active duty and deployed and cannot be contacted, although 
the increased availability of e-mails and cell phones has improved our 
ability to communicate with such claimants. An employer who is 
uncooperative can also cause delays in processing claims. Delays can 
also occur during the referral process, if the Solicitor's Office 
requests additional investigation in order to support a litigation 
recommendation.
    There are some situations in which VETS' ability to expedite the 
USERRA claim process is limited or nonexistent. For example, where the 
employer is a single individual and that individual is not available 
for legitimate reasons, delays in communicating with the employer are 
unavoidable. Similarly, where the claimant is unable or unwilling to 
participate in the investigation, the investigator's ability to move 
forward may be lost.
    VETS has been taking aggressive steps that will reduce the 
processing times for claims received by the agency. In February 2008, 
we implemented a new Operations Manual and updated our Quality 
Assurance Review process. Extensive investigator training on the Manual 
is now underway through regional training conferences and new online 
training will begin this year. Items contained in the Operations Manual 
and the training programs include investigative tools that can lead to 
quicker resolution of USERRA claims.
    Investigators are encouraged to consider requesting subpoenas at an 
earlier point in cases where an employer is reluctant to provide 
documents or witnesses. Onsite investigations, witness interviews, and 
case resolution conferences are encouraged to expedite investigations. 
Investigators are now expected to complete referral memorandums within 
15 working days after the claimant requests the referral. In addition, 
we have recently clarified to our investigators that once a claimant 
asks for referral, any continued efforts to resolve the claim should 
take place concurrently with processing the referral, and should in no 
way slow the referral process. With respect to claims filed against 
Federal employers, the responsible headquarters office of the agency 
involved now receives a copy of the VETS investigator's opening letter.
    In 2006, VETS established a Senior Investigator (SI) position in 
each of its six Federal regions. The SI helps investigators deal with 
difficult employers and claimants, provides a second set of eyes on 
investigators' cases, and assists the referral process. The SI or the 
investigator's next-level supervisor conducts a review of open claims 
at the 45-day mark. If the claim remains open after 60 days, a more 
detailed review is conducted by the regional office. After 90 days, the 
SI determines what is needed to finalize the investigation. In 
addition, the SI is responsible for taking appropriate steps to resolve 
requests for referral that have been pending for more than 30 days.
    VETS continues to work to improve communications between all 
partners involved in USERRA enforcement. We have already made relevant 
data from the USERRA Information Management System available to the 
DOD, OSC and DOJ, and are moving to more electronic case management. 
When this initiative is completed, users from each agency will have 
immediate access to information on the status of claims moving through 
the referral process.

    Question 2. We know as the war grows, so will the number of 
returning veterans who may need USERRA protection, resulting in a much 
greater case load than DOL, DOD, DOJ, OSC are currently handling. How 
can your agencies work proactively to prevent the need for USERRA 
claims in the future?
    Answer 2. We are optimistic that the aggressive outreach program 
conducted by DOL's VETS and DOD's ESGR will help employers properly 
deal with these reemployment issues. As more employees and employers 
understand their respective rights and obligations under the statute, 
we believe that USERRA violations will be reduced. However, Reserve and 
National Guard deployments have increased in both duration and 
frequency, and we are very mindful of the increased complexity of 
USERRA cases.
    We are vigilant in our administration of USERRA, recognizing that 
many workplaces are dealing with reemployment rights for the first 
time. We resolve many potential disputes by providing timely education 
and guidance to service members, employers, and other interested 
parties as to the requirements of the law. However, when we receive a 
USERRA complaint, we thoroughly and promptly investigate to ensure 
compliance with the law.
    VETS outreach activities are discussed in response to Question 5 
below.

    Question 3. In Mr. Bloch's testimony he claims that granting the 
OSC exclusive jurisdiction over Federal sector USERRA cases greatly 
enhance the efficiency of with which Federal sector cases could be 
handled.
    a. If OSC were allowed to have sole jurisdiction over Federal 
sector claims, do you think that veterans who are not Federal employees 
would perceive that they are being treated differently than their 
counterparts?
    b. In your opinion, how would such a change impact the larger 
USERRA system?
    Answer 3. Segmenting USERRA complaint filing and investigations 
based on whether the service members' employer is Federal or private 
sector is confusing and results in at least the perception of disparate 
treatment. We believe that a single agency needs to have visibility 
over the entire USERRA program, so that veterans know exactly where to 
go for help. DOL is in a position to do exactly that. Helping veterans 
and service members transition to civilian employment is VETS' primary 
mission. We offer a holistic approach to assisting veterans by helping 
those who want our assistance resolving a USERRA dispute with their 
employer as well as those who decide not to return to their previous 
employer and instead seek other employment or training opportunities. 
We have Veterans' Employment Specialists in every state in the country, 
and VETS-funded Disabled Veterans Opportunity Specialists (DVOPs) and 
Local Veterans' Employment Representatives (LVERs) are located at One-
Stop Career Centers in communities across the Nation. VETS has made 
significant investments in technology, so that electronically filed 
claims go directly to the appropriate field or regional offices through 
its UMIS system. This leads to reduced processing time.
    Furthermore, VETS' and OSC's success in resolving USERRA cases is 
comparable. In fiscal year 2006, 30 percent of VETS' USERRA cases were 
successfully resolved and the remaining 70 percent were either 
withdrawn by the claimant, administratively closed, found to have no 
merit, or were referred to DOJ or OSC. OSC's reported successful 
resolution rate for fiscal year 2006 was 27 percent, roughly comparable 
with VETS reported success rate for that year.

    Question 4. In your opinion, does the referral process hinder DOL's 
ability to resolve cases efficiently? If DOL had the authority to 
litigate cases through its Solicitor's office, would claims be resolved 
faster?
    Answer 4. The referral process does not hinder DOL's ability to 
resolve cases efficiently. The most important reason is that VETS 
resolves the vast majority of USERRA problems before service members 
ever ask to have their cases referred. Over the last 10\1/2\ years, for 
example, VETS has resolved without referrals 91 percent of USERRA cases 
that involve Federal agency employers. Over the same time period, VETS 
also resolved 83 percent of meritorious cases in the Federal sector 
within 90 days. While VETS constantly strives to resolve more cases 
more quickly, we do not believe that the referral process significantly 
impedes our ability to succeed.

    Question 5. It's tough to help veterans get the protection they 
need and to help employers abide by the law when they don't know their 
rights and responsibilities. I consistently hear from National Guard 
and Reserve members that employers are hesitant to hire them because 
the employer fears that they will be mobilized.
    5a. What is DOL doing to ensure that employers understand their 
responsibilities under USERRA? 5b. Has DOL made efforts beyond 
enforcement to encourage employers to hire veterans? 5c. What more 
needs to be done and how do you plan to accomplish it?
    Answer 5a. VETS recognizes that most disputes arising under USERRA 
result from misunderstandings of the law and its requirements with 
respect to duties and responsibilities. Accordingly, we have engaged in 
an extensive public outreach program and, since 9/11, have briefed or 
provided technical assistance to more than 500,000 individuals 
nationwide. VETS national and regional staff have briefed deploying and 
returning military units, including members of the National Guard and 
Reserve, active duty military, and military personnel who are 
transitioning to civilian life. In addition, with our national staff, 
we have briefed State Chambers of Commerce, State Bar associations, 
professional associations, conducted webcasts, telephone and radio 
interviews and briefings, and national televised information sessions. 
Our USERRA briefings are now a component of instruction at the U.S. 
Army Judge Advocate General (JAG) School in Charlottesville, Virginia, 
and we hope to expand that program to other service branches' JAGs as 
well.
    The final USERRA regulations, now codified at 20 CFR 1002.1-
1002.314, are a very important and effective tool to ensure that 
employees and employers understand their rights and responsibilities 
under USERRA. Those regulations are highly regarded by stakeholders, 
and written in ``plain English'' in an easy-to-read question-and-answer 
format. The regulations are intended to answer any questions employers 
and employees alike may have about their respective duties and rights 
under the law, and we believe they offer the single best tutorial on 
the law. In addition, our USERRA elaws Advisor, available at http://
www.dol.gov/elaws/userra.htm, is an interactive Web site available 24/7 
to assist both servicemembers and employers understand their rights and 
responsibilities under the law. This Web site receives an average of 
over 8,000 visits per month and allows servicemembers to determine if 
they appear to have a valid complaint and to file that complaint 
electronically.
    Word of our USERRA outreach is being spread throughout employer and 
professional communities, and we are receiving a greatly increasing 
volume of requests for our national and field staff to address those 
groups nationwide.
    5b. In 2004, VETS launched a national outreach program called 
HireVetsFirst to encourage more employers to hire veterans. With the 
Web site, www.hirevetsfirst.gov, as its cornerstone, VETS has targeted 
corporate executives, small businesses and human resources managers to 
connect them with veterans seeking employment, especially those 
returning from Iraq and Afghanistan. Additionally, VETS started a 
program to specially help wounded and injured veterans transition back 
to the civilian sector. Recovery Assistance Employment Lifelines, or 
REALifelines, has trained coordinators that work with the service 
member during their recovery process, and coordinate with local 
employers when an injured service member returns home to begin his or 
her civilian life.
    5c. VETS is continuing to seek new opportunities and avenues to 
have employers and veterans get together. Last year, VETS coordinated 
over 100 veteran-only job fairs with the State workforce system and 
staged a nationwide blitz surrounding the Veterans Day remembrance to 
raise the profile of veterans' employment. Nearly 30,000 veterans and 
transitioning service members were greeted by over 4,000 employers 
during this period of time. Additionally, VETS is co-branding veteran-
only job fairs with private vendors to further enhance opportunities 
for veterans. Last year over 40,000 veterans attended at least one of 
110 such job fairs. This year over 200 private vendor job fairs are 
scheduled as well as additional events staged by the various State 
workforce systems.

    Question 6. I understand that DOL and DOD have been working 
together to address the data compatibility concerns that GAO raised 
concerning common complaint categories for USERRA claims and that we 
can expect a pilot test of this new program in 2008. Is that effort 
still on track for next year?
    Answer 6. Yes, this effort is on track. VETS and DOD have reviewed 
the complaint categories, or issue codes, used by each agency and have 
developed a crosswalk that identifies, for each agency's USERRA issue 
codes, the related section of the USERRA Regulations and the U.S. Code. 
The agencies are now assessing the information collected by each agency 
and VETS' fiscal year 2007 USERRA Annual Report will report the issues 
involved in each agency's cases in common categories.
                                 ______
                                 
                      Reserve Officers Association,
                                     Washington, DC. 20002,
                                                     March 5, 2008.
Hon. Edward M. Kennedy, Chairman,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC. 20510-6300.

    Dear Chairman Kennedy: Thank you for the opportunity to testify 
before the Committee on Health, Education, Labor, and Pensions on the 
Uniformed Services Employment and Reemployment Rights Act (USERRA) and 
the agencies that are responsible for enforcing this law. Attached are 
the follow-up answers to the additional questions for the record that 
were requested.
            Sincerely,
                                        Dennis M. McCarthy,
                            Lieutenant General, USMC (Ret),
                                                Executive Director.
                                 ______
                                 
 Response to Questions of Senator Kennedy by Lieutenant General Dennis 
                        M. McCarthy, USMC (Ret.)

    Question 1. Have you noticed an increase in reemployment problems 
among your members? What types of reemployment issues have grown in 
recent years, and what types of issues present the most difficult to 
resolve?
    Answer 1. Yes. We have noted a large increase after September 11, 
2001, and that number has remained high ever since. The Reserve 
Officers Association retains a lawyer to address reemployment/
employment problems, Captain Samuel F. Wright, JAGC, USN (Ret.). ROA 
have seen an up-tick in the number of phone calls and 
e-mails that ROA has been receiving. Captain Wright reports that he 
receives, on average, three to four e-mails or phone calls a day with 
requests for assistance or questions regarding USERRA.
    In addition to commissioned officers, a larger number of queries 
come from enlisted Reservists and National Guard members. Captain 
Wright also hears from attorneys for both USERRA claimants and for 
employers; employers; human relations managers; ESGR volunteers; and 
others who have an interest in USERRA. ROA responds and provides 
information and assistance, without regard to whether the individual 
requesting assistance is a member of the Reserve Officers Association.
    The Reserve Officers Association has noted a change in the typical 
reemployment disputes faced by returning National Guard and Reserve 
members. While many challenges still relate to lost jobs or demotions, 
others are dealing with lost seniority, promotions, pay raises, 
retirement credit and other employment related matters protected under 
the Uniformed Services Employment and Reemployment Act (USERRA).
    The greatest difficulty arises when the returning service member's 
reemployment displaces another employee who has filled the Reservist's 
position during mobilization. Employers often try to resist this 
requirement, wanting to reward the employee who stayed behind.
    In Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 284-
85 (1946), the Supreme Court enunciated the ``escalator principle'' 
when it held, ``[The returning Guard or Reserve member] does not step 
back on the seniority escalator at the point he stepped off. He steps 
back on at the precise point he would have occupied had he kept his 
position continuously during the war.''
    Section 4316(a) of USERRA [38 U.S.C. 4316(a)] codifies the 
``escalator principle'' in the current law. After completing his 
mobilization, a Guard or Reserve member is entitled to promotions, pay 
raises, and other benefits that he most likely would have received if 
he had remained continuously employed.
    If a promotion is dependent upon passage of an exam (as is often 
the case for police officers, firefighters, and other State and local 
government employees), the employer is required to offer the returning 
member the opportunity to take a make-up exam after returning to work. 
If the member's score on the make-up exam is such that the person would 
have been promoted if continuously employed, the individual is entitled 
to the promotion, even if that means displacing another employee who 
was promoted some months earlier. See 20 CFR 1002.193(b).
    Of course, the ``escalator'' can descend as well as ascend. The 
returning service member is not exempted from bad things, like 
reductions in force and layoffs that clearly would have happened 
anyway, even if the individual had not been away from work for military 
service at the time.
    Another recurring problem we see is the ``preemptive firing.'' If 
the employer is aware that Mary Jones is likely to be called to active 
duty sometime in the next 6 months or so, the employer often begins a 
search for a pretext to fire Mary now, and thus avoid USERRA 
obligations.

    Question 2. In your opinion, are the four government agencies 
charged with enforcing USERRA doing a satisfactory job of assisting 
service members in resolving their reemployment problems? Are there any 
agencies in particular that you feel are not serving service members' 
needs effectively, and if so how are such agencies failing to serve 
their needs? What actions should these agencies take to better handle 
Reservists' reemployment problems? What can these agencies do to better 
inform and educate returning soldiers, sailors, Marines and airmen of 
their reemployment rights?
    Answer 2. There are four agencies that have a role to play in 
USERRA enforcement:

    a. The National Committee for Employer Support of the Guard and 
Reserve (ESGR), a Department of Defense organization.
    b. The Veterans' Employment and Training Service of the Department 
of Labor (DOL-VETS).
    c. The Department of Justice (DOJ).
    d. The Office of Special Counsel (OSC).

    The vast majority of the USERRA disputes can be corrected through 
good communications, as is demonstrated by the ombudsman program of the 
Employer Support for the Guard and Reserve that does an excellent job 
in correcting a large portion of these disagreements. Yet, not all the 
problems that arise can be settled through mediation.
    DOL's Veterans' Employment and Training Service (VETS) handles 
USERRA complaints and other veterans' issues. DOL-VETS provides 
assistance to all persons having complaints under USERRA. 
Unfortunately, actual elapsed times of cases can often take 1 to 2 
years to investigation and process. Within DOL, cases are still 
processed on paper; this slows information transfer, and creates the 
risk of duplication. In the vast majority of cases, the outcome is 
dismissal of the claim.
    If the Department of Labor does not resolve a complaint, it will 
refer the complaint to the Department of Justice upon the request of 
the person who filed the complaint. The cases go to the Civil Rights 
Division of DOJ and in turn USERRA enforcement is assigned to the 
Employment Litigation Section. Under USERRA, the DOJ has authority to 
appear on behalf of a claimant in a suit filed in Federal district 
court if DOJ is satisfied that the claimant is entitled to the rights 
or benefits being sought. The Department of Justice does not pursue all 
possible cases.
    A successful demonstration project was authorized by Congress, 
which expanded the Office of Special Council's (OSC) role over 
federally employed Reservist USERRA cases. OSC got about half of the 
Federal cases, and aggressively resolved many at a faster and higher 
rate of success than DOL.
    The Department of Labor should follow the success of the Office of 
Special Council with dedicated investigators and lawyers assigned to 
DOL-VETS who specifically focus on USERRA cases. I believe that DOL-
VETS would do much better with more funding for specifically assigned 
and trained personnel.
    ROA believes that there is room for improvement in each of these 
agencies. DOL seems to have unreasonable expectations about the level 
of proof (a ``smoking gun'') that is necessary to make a USERRA case, 
and the agency closes all too many cases as ``without merit'' that do 
have merit. Further cases are measured by time spent processing, not by 
actual elapsed time.
    The Reserve Officers Association believes five actions are 
necessary to improve processing reemployment problems:
    1. Resource the National Committee on Employer Support of the Guard 
and Reserve adequately.

     Enable ESGR to expand its outreach programs to employers. 
This will head off many problems before they arise by educating 
employers as to their USERRA responsibilities.
     Staffing and training ESGR's ``ombudsmen'' will solve many 
problems at a low level--the quickest way to get a service member back 
to work.

    2. The Department of Labor needs a specific set of USERRA 
investigators who work on these issues full time.
    3. USERRA records should be maintained and transmitted 
electronically. with access by the service member, ESGR, DOL-VETS, the 
Office of Special Counsel, and the Department of Justice.
    4. Congress should mandate better reporting by all Federal agencies 
involved in these cases:

     How many cases are there?
     How are they resolved?
     How long does the process really take?

    5. The Office of Special Counsel should handle all cases involving 
Federal employees, in order to free up DOL-VETS to work with private 
employers.
    What is needed is not only a single Federal office which can focus 
and streamline USERRA claims. but a collaboration between Federal and 
private representation to serve this country's patriots who are 
returning to being citizens from a tour as warrior.
    The National Committee on Employer Support for the Guard and 
Reserve has set an excellent example on how a Federal agency can work 
with the private sector recruiting business executives to assist in 
intervention with other business owners on USERRA.
    The Labor and Defense departments are responsible for informing 
service members and employers of their rights and obligations under 
USERRA.
    GAO reports that 72 percent of Guard and Reserve members with 
reemployment problems never seek Federal remedy. This reflects a 
breakdown in communication of knowing the rights, and options.

     Active, Guard and Reserve leadership needs to be better 
trained on USERRA rights to share with serving Guard and Reserve 
members.
     Enable ESGR outreach programs to employers and serving 
members, and expand its ESGR's ``ombudsmen program.
     Department of Labor needs to treat serving members as 
their customers, by providing claims status to Guard and Reserve 
Claimants.

    Question 3. Why do you think that so many service members who 
experience reemployment problems fail to contact anyone for assistance, 
including the Federal Government? Why do you think that we have seen an 
increase in recent years in the percentage of reservists with 
reemployment problems who contact private attorneys? Are private 
lawyers simply doing a better job of investigating and resolving cases, 
or do our reservists doubt that the government will assist them 
effectively?
    Answer 3. Since USERRA's passage in 1994, most USERRA enforcements 
were by reservists who sought private litigation. Unfortunately, many 
Reserve Component members can't afford private litigation.
    The actual elapsed times of DOL cases often take 1 to 2 years to 
investigation and process. Many reservists are discouraged by the time 
it takes for DOL and feel that DOL is not acting as their litigator. 
They feel a private attorney would better represent them in a more 
timely fashion.
    A private attorney can investigate the facts and the law and make a 
decision, and then send a demand letter and if necessary file suit, 
within a month or so. Investigations at DOL-VETS take many months, and 
in some cases many years. Also, a private attorney can consider legal 
theories and remedies under various State and Federal laws, not just 
USERRA. Finally, a private counsel will approach a USERRA case, or any 
case, with a sense of advocacy, not neutrality, representing the Guard 
or Reserve claimant.
    However, not enough private lawyers are well-informed about 
handling these USERRA cases. More information and training (in the form 
of Continuing Legal Education) is needed.

Response to Questions of Senator Murray by Lieutenant General Dennis M. 
                         McCarthy, USMC (Ret.)

    Question 1. You mention in your testimony that the number of phone 
calls and e-mails your organization receives regarding reemployment of 
National Guard and Reserve is increasing. How much has it increased and 
do you expect these numbers to increase further?
    Answer 1. We had a five fold increase and get as many queries in a 
day that we used to get in a week prior to 9/11/2001. As Guard and 
Reserve members continue to mobilize in support of the Global War on 
Terrorism, we expect to see a growing number of problems occurring 
among our Nation's employers due to mobilization fatigue.

    Question 2. What are the most common problems Guard and Reserve 
members are having with reemployment?
    Answer 2. Finding timely representation, to resolve their 
employment problems, lawyers, willing to work pro bono or on 
contingency, are needed, and these lawyers need training and research 
materials to be effective.

    Question 3. Does the Reserve Officers Association (ROA) have the 
resources to handle the increased number of USERRA cases?
    Answer 3. Not at this time. Working with very limited resources, 
ROA has accomplished a great deal in educating Reserve Component 
members and their civilian employers about their rights and obligations 
under USERRA and other laws, but demand is greater than means.
    The challenge is finding lawyers willing to represent Guard and 
Reserve members facing USERRA problems.

    Question 4. In your written testimony, you propose the 
establishment of a Service Members Law Center at ROA. Do you think that 
such a center would be necessary if the four Federal agencies were 
accountable for maintaining and managing USERRA?
    Answer 4. Yes. ROA is already providing a ``Law Review'' Library 
with approximately 320 articles, about the Uniformed Services 
Employment and `Reemployment Rights Act (USERRA) and related laws. This 
is being used as a resource by both government and private attorneys, 
as well as providing information to Guard and Reserve members. New 
articles are added each month.
    The Law Center would serve as a hub for sharing information on 
USERRA and SCRA to serving members, professionals and academians. The 
ultimate key to effective USERRA enforcement is to educate private 
attorneys, both for USERRA claimants and for employers. By developing 
the Law Center, ROA could conduct Continuing Legal Education (CLE) 
sessions nationwide. We would also file amicus curiae (friend of the 
court) briefs in courts around the country, in cases involving USERRA 
and other laws that protect the rights of service members.
    To accomplish all that needs to be done, we need startup assistance 

from Congress. The initial cost of $750,000 is a small investment on 
potential return.

    [Whereupon, at 11:58 a.m. the hearing was adjourned.]