U.S. Office of Special Counsel's Role in Enforcing Law to Protect
Reemployment Rights of Veterans and Reservists in Federal	 
Employment (06-OCT-04, GAO-05-74R).				 
                                                                 
The U.S. Office of Special Counsel (OSC) enforces the rights of  
federal employees and applicants for federal employment under the
Uniformed Services Employment and Reemployment Rights Act	 
(USERRA) of 1994. USERRA provides for the employment and	 
reemployment rights of federal and nonfederal employees who leave
their employment to perform military service. USERRA also	 
prohibits discrimination against persons because of their	 
military service. In light of the significant number of National 
Guard members and reservists serving in the war in Iraq and in	 
other conflicts who will be demobilized and returning to the	 
federal workforce in the coming months, the Ranking Minority	 
Member, Senate Committee on Health, Education, Labor, and	 
Pensions, asked us to review issues surrounding enforcement of	 
the act in the federal sector, particularly by OSC. Under USERRA,
a federal employee or applicant who believes that his or her	 
USERRA rights have been violated may file a claim with the	 
Department of Labor's (DOL) Veterans' Employment and Training	 
Service (VETS), which investigates and attempts to resolve the	 
claim. If VETS cannot resolve the claim, the individual may	 
request that it be referred to OSC. In addition to handling	 
USERRA claims, OSC handles claims of prohibited personnel	 
practices by federal agencies. In a March 2004 report, we	 
discussed OSC's performance in processing cases filed with the	 
agency, including those filed under USERRA. This report provides 
information on (1) how OSC carries out its responsibilities under
USERRA, (2) the average number of days OSC took to process USERRA
claims from fiscal years 1999 through 2003, (3) changes OSC has  
made to handle current USERRA claims and any increase in claims, 
and (4) changes OSC believes are necessary to make the handling  
of USERRA claims in the federal sector more efficient and	 
effective.							 
-------------------------Indexing Terms------------------------- 
REPORTNUM:   GAO-05-74R 					        
    ACCNO:   A12974						        
  TITLE:     U.S. Office of Special Counsel's Role in Enforcing Law to
Protect Reemployment Rights of Veterans and Reservists in Federal
Employment							 
     DATE:   10/06/2004 
  SUBJECT:   Agency proceedings 				 
	     Claims processing					 
	     Employment discrimination				 
	     Federal employees					 
	     Federal personnel law				 
	     Interagency relations				 
	     Investigations by federal agencies 		 
	     Lawyers						 
	     Legal rights					 
	     Military reserve personnel 			 
	     Personnel management				 
	     Special counsels					 
	     Corrective action					 

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GAO-05-74R

United States Government Accountability Office Washington, DC 20548

October 6, 2004

The Honorable Edward M. Kennedy Ranking Minority Member Committee on
Health, Education,

Labor, and Pensions United States Senate

Subject: 	U.S. Office of Special Counsel's Role in Enforcing Law to
Protect Reemployment Rights of Veterans and Reservists in Federal
Employment

Dear Senator Kennedy:

The U.S. Office of Special Counsel (OSC) enforces the rights of federal
employees and applicants for federal employment under the Uniformed
Services Employment and Reemployment Rights Act (USERRA) of 1994.1 USERRA
provides for the employment and reemployment rights of federal and
nonfederal employees who leave their employment to perform military
service. USERRA also prohibits discrimination against persons because of
their military service. In light of the significant number of National
Guard members and reservists serving in the war in Iraq and in other
conflicts who will be demobilized and returning to the federal workforce
in the coming months, you asked us to review issues surrounding
enforcement of the act in the federal sector, particularly by OSC.

Under USERRA, a federal employee or applicant who believes that his or her
USERRA rights have been violated may file a claim with the Department of
Labor's (DOL) Veterans' Employment and Training Service (VETS), which
investigates and attempts to resolve the claim.2 If VETS cannot resolve
the claim, the individual may request that it be referred to OSC. 3 In
addition to handling USERRA claims, OSC handles claims of prohibited
personnel practices by federal agencies. In a March 2004 report, we
discussed OSC's performance in processing cases filed with the

1Pub. L. No. 103-353, 108 Stat. 3149, as amended, codified at 38 U.S.C.
sections 4301-4333.
2VETS also handles claims from employees of other employers, including
state government and private
sector employers. If VETS cannot resolve these nonfederal claims, an
individual may ask for a referral
to the Department of Justice, which may prosecute the claim.
3According to VETS, in fiscal year 2003, the agency resolved about 94
percent of the claims submitted
to it without the need for referral. The resolution of these claims
includes agency voluntary
compliance, settlement, no merit conclusions, and administrative closures.

agency, including those filed under USERRA.4 This report responds to your
request to provide information on (1) how OSC carries out its
responsibilities under USERRA, (2) the average number of days OSC took to
process USERRA claims from fiscal years 1999 through 2003, (3) changes OSC
has made to handle current USERRA claims and any increase in claims, and
(4) changes OSC believes are necessary to make the handling of USERRA
claims in the federal sector more efficient and effective.

To address these objectives, we interviewed OSC and DOL officials
responsible for processing federal sector USERRA cases and coordinating
efforts between OSC and VETS. We reviewed OSC's documents describing the
agency's role in the referral process and the procedures for processing
USERRA cases. To obtain perspectives concerning OSC's plans to handle any
increase in USERRA cases and changes needed to ensure protections of
service members' reemployment rights, we interviewed key agency officials
and reviewed written testimony from a June 23, 2004, House Committee on
Veterans Affairs hearing on compliance with USERRA. To determine the
average time spent by OSC to process a USERRA claim during fiscal years
1999 through 2003, we reviewed caseload data generated from OSC's data
tracking system (OSC 2000). Processing time for a claim is determined from
the date that a claim is referred to OSC until the case is either resolved
through corrective action, OSC decides that the case has no merit, or OSC
files a case with the Merit Systems Protection Board (MSPB).5 In our March
2004 report, we assessed the reliability of the case tracking data system
and verified the accuracy of the data by comparing and testing electronic
data elements for obvious errors. To determine the completeness and
accuracy of OSC's USERRA case data, we compared OSC's data with data from
DOL on the number of cases referred and the recommendation of the merits
of those cases. On the basis of our assessment of OSC 2000 and the
caseload data that it generated, we determined that the data for fiscal
years 1999 through 2003 were sufficiently reliable for the purposes of our
report. We conducted our review in Washington, D.C., from April 2004
through September 2004 in accordance with generally accepted government
auditing standards.

Results in Brief

OSC's responsibility under USERRA is to determine the merits of claims it
receives from DOL and to seek corrective action on behalf of individuals
in federal employment whose claims have merit. In its self-described role
as a "special prosecutor" of such claims, OSC attempts to resolve a claim
that has merit first by negotiating with the claimant's federal employer.
If negotiation fails, OSC proceeds to initiate legal action against the
employer before MSPB and then, if necessary, the U.S. Court of Appeals for
the Federal Circuit. The claim referral from DOL to OSC includes the
results of DOL's investigation and the legal analysis of the claim by the
appropriate DOL regional solicitor. While OSC takes this information into
account, the agency determines the merits of each claim by performing its
own legal analysis and independently reviewing the facts and law
applicable to the claim. OSC agreed

4See GAO, U.S. Office of Special Counsel: Strategy for Reducing Persistent
Backlog of Cases Should Be Provided to Congress, GAO-04-36 (Washington,
D.C.: Mar. 8, 2004). 5MSPB is an independent, quasi-judicial agency in the
executive branch that serves as the guardian of federal merit principles.

with DOL's recommendation about whether or not a claim had merit in about
73 percent of the claims (43 of 59) OSC processed from fiscal years 1999
through 2003. After conducting its own review of these claims, OSC
determined that 5 of the 59 claims had merit.

OSC took an average of about 145 days to process the 59 USERRA claims that
the agency received from fiscal year 1999 through 2003. During this
period, USERRA claims represented less than 1 percent of OSC's overall
caseload. Unlike the law governing prohibited personnel practice cases,
USERRA does not include a time frame within which OSC is required to
process cases covered under the act. According to OSC, it obtained full
corrective action from the involved federal agency for all 5 claims that
OSC determined had merit during fiscal years 1999 through 2003.

Recently, OSC has taken several steps that agency officials said would be
helpful in processing USERRA cases more quickly and in dealing effectively
with anticipated increases in new USERRA cases. Most significantly, in
April 2004, OSC established its Special Projects Unit (SPU) to act as a
"SWAT" team to address high-priority case processing needs, including the
handling of all USERRA cases. Prior to the formation of SPU, OSC attorneys
who specialized in USERRA may have had other priority cases, and
nonspecialists in USERRA were assigned USERRA cases. By assigning all
USERRA cases to SPU and detailing attorneys specializing in these cases to
SPU, OSC's objective is to ensure that these cases get priority attention.
OSC officials also reported that the agency is working closely with the
Department of Defense's National Committee for Employer Support of the
Guard and Reserve to explain to federal employees their rights under
USERRA. Also, OSC said it maintains Webbased and telephone "hot lines"
that provide a source of information and assistance about employer and
employee rights and responsibilities under USERRA.

At the June 2004 hearing before the House Committee on Veterans Affairs,
the Special Counsel discussed two potential enhancements to OSC's
authority that he said could help make the handling of USERRA cases in the
federal sector more efficient and effective. In both instances, the
Special Counsel said it is unclear whether USERRA already gives OSC such
authority. First, the Special Counsel said that to help ensure that OSC
has all of the information that it needs to resolve a claim, OSC should be
allowed to get involved in a USERRA claim while the investigation at DOL
is ongoing, rather than having to wait until DOL finishes it and refers
the claim to OSC. In this regard, OSC and DOL are discussing amendments to
a memorandum of understanding between the two agencies that would bring
OSC into the process earlier. According to DOL, OSC would become involved
once VETS finished its investigation and sent the claim to DOL's regional
solicitor. OSC has asked DOL to identify difficult cases that would
benefit from OSC's earlier involvement. OSC officials have indicated that
they support a demonstration project, included in proposed legislation,
that would allow OSC to get involved earlier by requiring DOL to share
responsibility with OSC for receiving and processing USERRA claims. DOL
opposes a change that would give OSC authority to receive and process
USERRA claims, noting that if OSC performs initial investigations it would
create inconsistency in the federal USERRA process. Second, the Special
Counsel said if OSC was given the authority under USERRA to pursue
disciplinary actions against offending federal supervisors in cases in a
manner similar to authority the agency has in enforcing other federal
employment violations, supervisors would be held

accountable for upholding the law. Currently, under USERRA, OSC can seek
only corrective action from the federal agency.

Background

OSC's mission is to safeguard the federal merit system, primarily by
investigating prohibited personnel practices and seeking corrective or
disciplinary action through negotiation with agencies or prosecuting
claims before MSPB. OSC is authorized to receive disclosures of alleged
wrongdoing, such as violations of law and "gross waste" of funds by
federal employees (termed "whistleblower disclosures").6 The agency also
has jurisdiction over the Hatch Act,7 which regulates the political
activities of individuals employed by the federal and District of Columbia
governments as well as certain state and local government employees
employed in connection with programs financed by federal funds.

Following the 1991 Gulf War, reservists and employers flooded the
government with questions and claims concerning the reemployment rights of
reservists who had been away from their jobs during the war. At that time,
reemployment rights were set forth in the provisions of the Veterans
Reemployment Rights Act of 1974.8 In 1994, following review of the
effectiveness of the 1974 act, Congress passed USERRA to clarify,
simplify, and strengthen the existing employment and reemployment rights
of veterans. USERRA prohibits a public or private sector employer from
denying any benefit of employment on the basis of any individual's
membership, application for membership, performance of service,
application for service, or obligation for service in the uniformed
services. USERRA also protects individuals from retaliation for asserting,
or assisting someone in asserting, their rights under USERRA. USERRA also
protects the employment and reemployment rights of veterans, reservists,
National Guard members, and certain other members of the uniformed
services who were absent from their civilian employment due to military
service, including service for training.

OSC Evaluates Claims Received from DOL and Seeks Corrective Action for
Individuals with Claims That Have Merit

OSC's responsibility under USERRA is to determine the merits of federal
sector claims it receives from DOL and to seek corrective action on behalf
of individuals whose claims have merit. In its self-described role as a
"special prosecutor" of such claims, OSC attempts to resolve a claim that
has merit first by negotiating with the claimant's federal employer. If
negotiation fails, OSC would proceed with legal action against the
employer before MSPB9 and then, if necessary, in the U.S. Court of Appeals
for the Federal Circuit.

OSC is not authorized to receive USERRA federal sector claims directly
from claimants. Instead, OSC receives claims after they have been filed
with VETS. If

6Reprisal for whistleblower disclosure is a prohibited personnel practice.
7The provisions commonly referred to as the Hatch Act, as applied to
federal and District of Columbia
employees, are found under subchapter III of chapter 73 of title 5. The
Hatch Act provisions relating to
certain state and local employees are found under chapter 15 of title 5.
8Pub. L. No. 93-508, 88 Stat 1578 (Dec. 3, 1974).
9A claimant can bypass both VETS and OSC and take his or her claim
directly to MSPB.

VETS efforts do not resolve the claim, the individual can have the case
referred to OSC, regardless of its merit.

When an individual employed by the federal government requests that his or
her claim be referred to OSC, VETS regional investigators first send the
investigative file and a recommendation for or against representation to
the appropriate DOL regional solicitor. 10 The regional solicitor
identifies the legal issues surrounding the claim and prepares a legal
analysis. This analysis, a conclusion as to the merits of the case, and a
recommendation about whether OSC should provide representation are
included in the letter of referral from the regional solicitor to OSC.
While OSC takes this information into account, the agency conducts its own
review of the facts and law applicable to each claim. If OSC is satisfied
that the claimant is entitled to corrective action, the agency begins
negotiations with the claimant's federal employer. If an agreement cannot
be reached, OSC may represent the claimant before MSPB, upon the
claimant's request. If MSPB rules against the claimant, OSC may decide to
appeal the decision to the U.S. Court of Appeals for the Federal Circuit.
In cases where OSC finds that the claim does not have merit, OSC would
inform the claimant of its decision not to represent the claimant and the
claimant's right to take the case to MSPB.

In fiscal years 1999 through 2003, for claims referred to OSC by DOL, OSC
and the regional solicitor agreed on whether or not a claim had merit for
about 73 percent of the claims (43 of the 59) 11 and disagreed on about 14
percent (8 of 59). In 2 cases, OSC and DOL disagreed on procedural issues
and in the remaining 6 cases, the information from OSC was not clear as to
DOL's determination. (See fig. 1.)

10DOL's Office of the Solicitor is the chief legal counsel responsible for
providing legal advice and
analysis for the agency. The office has eight regional offices, which are
each headed by a regional
solicitor.
11While OSC received 60 claims from DOL during this period, we excluded
one case from our review
because it was opened, closed, reopened, closed again, and is currently
under reconsideration,
meaning it was unresolved at the time of our review.

Figure 1: OSC and DOL's Determinations for Cases Processed by OSC, Fiscal
Years 1999 through 2003

aDOL's finding cannot be definitively ascertained from OSC data for
varying reasons, including that
recommendations were not in the OSC file or that according to OSC, the
file was destroyed pursuant
to federal archive regulations.
bOSC found that one case was premature and DOL disagreed. In the other
case, OSC found that the
claim was barred because of a prior claim. Again, DOL disagreed.

In instances when OSC's determination differs from DOL's determination on
the merits of a case, OSC notifies the regional solicitor of its
determination and the reasoning behind it and invites comments. OSC
reviews the comments of the regional solicitor, if any, prior to making
its final determination on a case. The enclosure provides more detailed
information on the steps in processing a USERRA claim from initiation to
resolution as well as information on the types of USERRA claims.

Claim Processing Time Varied Widely, but OSC Obtained Corrective Action
from Federal Employers on All USERRA Claims That Had Merit

From fiscal years 1999 through 2003, OSC took an average of about 145 days
to process the 59 USERRA claims received from DOL. These USERRA claims
represented less than 1 percent of OSC's entire caseload. USERRA does not
specify a time frame within which OSC is required to process claims
covered under the act.12

12In its annual reports to Congress, OSC provides data on the different
categories of claims pending at the end of each fiscal year. Because OSC
is required to process prohibited personnel practice and whistleblower
disclosure claims within certain statutory time frames, the agency reports
the "backlog"-the number of claims that have not been processed in the
applicable time frame. Technically, because USERRA does not require OSC to
process claims within a specific statutory time frame, there is no backlog
of these cases. Claims pending at the end of a fiscal year, however, are
carried over to the following year.

OSC's USERRA claim processing time ranged from as little as 2 days to as
long as 30 months. There was little correlation between whether a claim
was ultimately found to have merit and how long it took to process it. For
example, two of the five claims that the agency determined had merit took
30 months to process; the other three took 60, 96, and 119 days. Of the
claims determined to lack merit, the range also varied widely. For
example, five claims that the agency determined had no merit took from 10
to 17 months to process; three other claims found to lack merit took 2
days.

According to OSC, it was able to obtain full corrective action from the
involved federal agency on each of the five claims that OSC determined had
merit.13 DOL agreed with OSC's determination of merit in four of these
claims. In the fifth claim, DOL determined that the claim lacked merit.

OSC Has Made Changes Designed to Expedite Handling of Current USERRA
Claims and Any Influx of New Claims

According to OSC officials, under the current Special Counsel, the agency
has taken several steps to help process current USERRA claims more quickly
and cope effectively with anticipated increases in USERRA claims. Most
significantly, in April 2004, OSC established its SPU that acts as a
"SWAT" team to address high-priority claim processing needs, including the
handling of all USERRA claims.

According to OSC, SPU is intended to maximize OSC's efficiency by
eliminating OSC's chronic backlog of non-USERRA claims. Prior to the
establishment of SPU, OSC attorneys who specialized in USERRA may have had
other priority claims, and nonspecialists in USERRA were assigned USERRA
claims. By assigning all USERRA claims to SPU and detailing attorneys
specializing in these claims to SPU, the Special Counsel said he intends
to give these claims priority attention. According to OSC, SPU will have
two attorneys with USERRA experience and a supervisory attorney handling
USERRA claims. OSC further stated that it would detail or hire additional
attorneys, investigators, and other OSC staff, as needed, to handle any
surge in the number of USERRA claims it receives.

In another action, OSC has initiated steps to inform federal employees and
managers during visits to federal agencies about OSC's role in protecting
the employment and reemployment rights of guardsmen and reservists.
Officials also said that OSC is working closely with the Department of
Defense's National Committee for Employer Support for the Guard and
Reserve to explain to federal employees their rights under USERRA. In
addition, OSC said it maintains Web-based and telephone "hot lines" that
provide information and assistance about employer and employee rights and
responsibilities under USERRA.

13During his June 23, 2004, testimony, the Special Counsel said OSC filed
its first USERRA claim with MSPB that day because OSC determined that an
agency was unwilling to provide adequate relief for a service member.

OSC Says Enhancements to Its Authority Are Needed to Ensure the Protection
of USERRA Rights

In his June 2004 testimony, the Special Counsel said the USERRA referral
process creates unnecessary inefficiency, and he said more specific
authority for OSC to investigate claims and pursue disciplinary action
against offending federal supervisors could help remedy this problem. The
Special Counsel said it is unclear whether USERRA already gives OSC such
authority.

Under current procedures, once a person with a claim against the federal
government requests that VETS refer a claim to OSC, the regional solicitor
undertakes its legal analysis or additional investigation where necessary,
which OSC says generally takes about 3 to 6 months, but can take longer.
Only after completion of the analysis is the claim referred to OSC. The
Special Counsel said that after receiving a claim from the regional
solicitor, OSC often requests that the involved federal agency voluntarily
provide information to OSC that VETS had not requested.

The Special Counsel also testified that processing claims under USERRA
could be more efficient if the investigative and prosecutorial authority,
currently bifurcated between DOL and OSC under the act, were merged. He
noted that OSC has the authority to investigate and prosecute allegations
of prohibited personnel practices. The Special Counsel said merging of the
investigative and analytical functions would reduce the chances of
"over-investigating" USERRA cases that are without merit and would
increase the chances of identifying claims warranting prosecution so that
OSC can move expeditiously toward obtaining corrective action on behalf of
the claimant.

In an attempt to bring OSC's investigative and legal expertise into the
process earlier, OSC and VETS are discussing amendments to a memorandum of
understanding between the two agencies. VETS officials indicated that
OSC's earlier involvement would begin when the claimant asked that the
claim be referred to OSC, which is when the regional solicitor gets the
claim from VETS. OSC has also asked VETS to identify difficult claims that
would benefit from OSC's early involvement.

OSC officials have indicated that they support recently proposed
legislation that calls for a demonstration project for OSC to share
responsibility with DOL to receive and

14

investigate USERRA claims. For the period of the demonstration, this
legislation would allow OSC to receive certain USERRA claims directly from
claimants employed by the federal government without these claims going
through DOL first. Such a change would represent a new method of
delivering services to those covered under the act. It is unclear whether
OSC would need additional procedures or resources to use the new authority
that this legislation would give the agency.

DOL officials stated that while they are working to involve OSC earlier in
DOL investigations where it may be advantageous to the claimant to do so,
DOL does not concur or support the idea of OSC receiving USERRA claims and
conducting initial investigations of those claims. DOL is concerned that
if OSC performs the initial investigations in USERRA claims without DOL
participation, this would create inconsistency in the federal government
in how USERRA cases are investigated. DOL

14H.R. 4658, 108th Cong. sec. 212 (2004). See also S.2791, 108th Cong.
sec. 6 (2004).

currently investigates both private and public sector (including federal)
USERRA claims. DOL officials stated that in fiscal year 2003, the
department resolved about 94 percent of USERRA complaints without referral
to either the Department of Justice or OSC.15 According to DOL, if OSC
investigates USERRA claims brought against federal employers, the federal
sector claimant will not have the benefit that private sector and other
public sector claimants would have of DOL's expertise in investigating and
settling cases, which currently resolves most cases without the need for
litigation.

In response to DOL's concerns, OSC stated that an allegation of a USERRA
violation is identical to a prohibited personnel practice, as every USERRA
complaint involves the allegation of an illegal employment practice.
According to OSC, it has experience and expertise in handling veterans'
preference issues, discrimination cases, reprisal claims, and violations
of federal personnel regulations. The agency stated that it employs
personnel specialists, investigators, and federal labor law attorneys to
carry out its role of investigating prohibited personnel practices in the
federal sector and maintains liaisons with nearly every federal agency for
the purpose of facilitating its investigations and case resolutions. OSC
also stated that it has an Alternate Dispute Resolution Unit that offers
mediation services in appropriate cases.

When discussing what he called a lack of clarity with respect to OSC's
authority to pursue disciplinary action against offending federal
supervisors for USERRA violations, the Special Counsel noted that OSC has
this authority in dealing with other

16

federal employment violations, such as prohibited personnel practice
cases. Under USERRA, however, the agency generally seeks only corrective
action.

Agency Comments

On September 10, 2004, we provided a draft of this report to DOL and OSC
for their review and comment. DOL's comments, from the Office of the
Assistant Secretary of Veterans' Employment and Training Services,
centered on proposed legislation that would give OSC the authority to
receive and investigate USERRRA claims. Officials indicated that they are
working to include OSC earlier in investigations done by the department
but they do not concur or support a change that would allow OSC to do
initial investigations of USERRA claims. DOL stated that such a change
would create inconsistency in the federal government in how USERRA cases
are investigated and deprive federal sector claimants of the benefit that
private sector and other public sector claimants have of the department's
expertise in investigating and settling cases. We incorporated DOL's
position on the proposed legislation and other technical comments as
appropriate.

15According to DOL, of the claims that are referred by DOL, 90 percent are
private sector and state and
local government claims that are referred to the Department of Justice and
only about 10 percent are
claims against the federal government, which are referred to OSC.
16Under 5 U.S.C. 1215, OSC is authorized to seek disciplinary action
against an agency employee for
having committed a prohibited personnel practice or having violated
another provision of law within
OSC's jurisdiction, as set forth in 5 U.S.C. 1216. 5 U.S.C. 1216 does not
include specific reference to
OSC's authority under USERRA.

We received oral comments from OSC's Director, Congressional and Public
Affairs. OSC agreed with the contents of the report and stated that the
report accurately reflected the agency's role in enforcing USERRA. With
respect to concerns expressed by DOL about OSC becoming involved in
initial investigations of USERRA claims, OSC responded that it has the
experience and expertise to obtain all relevant information to reach a
determination as to whether the USERRA claimant is entitled to relief
under the statute. Officials further stated that given OSC's 25 years of
experience in investigating and resolving illegal employment practices in
the federal sector, USERRA claimants will not be disadvantaged at all by
having OSC receive and process their claims. OSC reiterated its point that
for claims received and processed entirely by OSC, the proposed
legislation would eliminate an arguably unnecessary bifurcation of
investigative and prosecutorial functions. Consequently, according to OSC,
service members would benefit from having their USERRA cases processed in
a more timely and efficient manner that may exceed that which is afforded
under the current system. In addition, OSC provided technical comments,
which we have incorporated as appropriate.

                               __ __ __ __ __ __

As agreed with your office, unless you publicly announce its contents
earlier, we plan no further distribution of this report until 30 days
after its issuance date. At that time we will send copies to the Secretary
of Labor; Special Counsel, Office of Special Counsel; interested
congressional committees; and other interested parties. In addition, this
report will be available without charge on GAO's Web site at www.gao.gov.

If you have questions about this report, please contact me at (202)
512-9490 or Belva Martin, Assistant Director, at (202) 512-4285. You may
also reach us by e-mail at [email protected] or [email protected]. Other key
contributors to this assignment were Karin Fangman, Sharon Hogan, and
Michael Rose.

Sincerely yours,

George H. Stalcup Director, Strategic Issues

Enclosure

Enclosure

Procedures for Processing USERRA Cases

The processing of a Uniformed Services Employment and Reemployment Rights
Act of 1994 (USERRA) case generally begins when an aggrieved federal
employee or applicant files a complaint with the Department of Labor's
(DOL) Veterans Employment and Training Service (VETS) and continues until
the claim is resolved. Figure 2 details the steps in that process.

Figure 2: Administrative Process for Federal Sector USERRA Claims

When the Office of Special Counsel (OSC) receives a USERRA referral, the
agency enters the claim into its computerized case tracking system-OSC
2000-and sends an acknowledgment letter to the DOL regional solicitor. OSC
also sends an acknowledgment letter to the claimant along with a consent
form for the claimant to sign and return to OSC. The consent form
designates the extent to which OSC is permitted to (1) communicate with
the regional solicitor, VETS, and the involved federal employer and (2)
disclose the claimant's identity. General procedures for referring USERRA
claims are expressly stated in a February 2001 memorandum of understanding
between OSC and VETS, which describes the respective roles and
responsibilities of the agencies. OSC officials stressed that open
communication with

DOL allows the two agencies to share information and is vital to effective
USERRA enforcement. For example, OSC may request clarification of the
letter of referral and legal analysis from the regional solicitor, who is
supposed to facilitate communication between OSC and the DOL investigator
of the claim.

OSC's criterion for deciding whether to represent a claimant is predicated
upon the merit of the claim, which is dictated by two main factors: the
facts of the case and application of the law. In reviewing USERRA cases,
OSC officials told us that practical experience with other types of cases,
such as prohibited personnel practice and whistleblower disclosure cases,
has helped OSC attorneys to examine the evidence, identify deviations from
standard operational procedures and practices, and look for signs of
disparate treatment of the claimant compared to other federal employees or
applicants.

On occasion, OSC receives alleged violations of USERRA or other laws
pertaining to veterans' rights as part of broader, multifaceted prohibited
personnel practice cases. An OSC official stated that staff are trained to
detect cases alleging that a right under any law or regulation related to
veterans' preference may have been violated and to immediately send these
cases directly to OSC's USERRA supervisory attorney for review. This is
especially important because only DOL handles claims alleging violations
of veterans' preference. Mindful that there is a time limit within which
individuals must file their claims in such cases, OSC advises claimants to
promptly seek corrective action with DOL.

OSC is not required to represent every claimant who seeks its assistance.
In USERRA cases where OSC determines there is no merit, OSC declines
representation and notifies the claimants of (1) the fact that the Special
Counsel has decided not to represent the claimant and (2) the claimant's
right to file an appeal with MSPB. Pursuant to the terms of the memorandum
of understanding between OSC and VETS, the notice does not discuss the
factual or legal bases of OSC's determination not to represent the
claimant as that notice, which is not privileged from discovery, may
otherwise be obtained by the agency and used against the claimant in any
subsequent litigation. OSC sends a copy of the notification to the DOL
regional solicitor.

Types of USERRA Claims

Under USERRA, there are two types of claims: (1) discrimination, including
retaliation, and (2) reemployment rights. Of the 59 USERRA claims that OSC
received from DOL in fiscal years 1999 through 2003, 17 OSC data show 12
as reemployment rights; 46 as discrimination, including a claim where the
complainant alleged retaliation for filing a USERRA claim; and the
remaining claim contained allegations of both reemployment and
discrimination issues.

(450334)

17While OSC received 60 claims from DOL during this period, we excluded
one case from our review because it was opened, closed, reopened, closed
again, and is currently under reconsideration, meaning it was unresolved
at the time of our review.

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