Military Personnel: Improved Quality Controls Needed over	 
Servicemembers' Employment Rights Claims at DOL (20-JUL-07,	 
GAO-07-907).							 
                                                                 
The Uniformed Services Employment and Reemployment Rights Act of 
1994 (USERRA) protects the employment and reemployment rights of 
federal and nonfederal employees who leave their employment to	 
perform military service. The Department of Labor (DOL) 	 
investigates and attempts to resolve claims filed by		 
servicemembers, and if not successful, DOL is to inform the	 
federal claimants that they may request to have their claims	 
referred to the Office of Special Counsel (OSC). Under a	 
demonstration project, from February 8, 2005, through September  
30, 2007, OSC is authorized to receive and investigate certain	 
USERRA claims, with DOL continuing its investigative role for	 
others. As required by Pub. L. No. 108-454, this report describes
the (1) processes, (2) outcomes, and (3) major changes during the
demonstration project. GAO selected a random sample of cases from
DOL's and OSC's databases and traced data for selected elements  
from the electronic files to source case files. 		 
-------------------------Indexing Terms------------------------- 
REPORTNUM:   GAO-07-907 					        
    ACCNO:   A73012						        
  TITLE:     Military Personnel: Improved Quality Controls Needed over
Servicemembers' Employment Rights Claims at DOL 		 
     DATE:   07/20/2007 
  SUBJECT:   Claims						 
	     Claims processing					 
	     Claims settlement					 
	     Databases						 
	     Executive agencies 				 
	     Investigations into federal agencies		 
	     Policy evaluation					 
	     Program evaluation 				 
	     Reemployment					 
	     Veterans employment programs			 
	     Policies and procedures				 

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GAO-07-907

   

     * [1]Results in Brief
     * [2]Background
     * [3]DOL and OSC Both Had Policies and Procedures for Processing

          * [4]Organizational Structure
          * [5]Receiving Claims
          * [6]Investigating Claims
          * [7]Resolving Claims

               * [8]Quality Assurance/Oversight
               * [9]Request for Referral of Claims from VETS to OSC

          * [10]After Claimant Requests a Referral, Two Additional Reviews a

     * [11]Under the Demonstration Project, Data Limitations at Both DO

          * [12]VETS's Data Limitations Affect the Determination of the Numb
          * [13]DOL Did Not Consistently Notify Claimants of Right of Referr
          * [14]Claims Processed by OSC under the Demonstration Project
          * [15]Claims Referred Took Several Months to Process

     * [16]Three Primary Changes Have Occurred since the Demonstration

          * [17]Two Models Used for Processing Claims
          * [18]Communication Concerning USERRA Claims Has Increased since t
          * [19]Technological Enhancements Have Improved USERRA Claims' Proc

     * [20]Conclusion
     * [21]Recommendations for Executive Action
     * [22]Agency Comments and Our Evaluation
     * [23]Objective 1: Describe DOL's and OSC's Policies and Procedure
     * [24]Objective 2: Identify the Number of Federal Employees' USERR

          * [25]Data Reliability

               * [26]DOL
               * [27]OSC

          * [28]Determining the Number of Claims Received

               * [29]DOL
               * [30]OSC

          * [31]Determining Average Processing Time for DOL

               * [32]VETS Investigations
               * [33]DOL's Referrals to OSC

          * [34]Determining Average Processing Time for OSC
          * [35]Notification of Rights

     * [36]Objective 3: Identify Changes to Federal Employees' USERRA C
     * [37]GAO Contact
     * [38]Acknowledgments
     * [39]GAO's Mission
     * [40]Obtaining Copies of GAO Reports and Testimony

          * [41]Order by Mail or Phone

     * [42]To Report Fraud, Waste, and Abuse in Federal Programs
     * [43]Congressional Relations
     * [44]Public Affairs

Report to Congressional Committees

United States Government Accountability Office

GAO

July 2007

MILITARY PERSONNEL

Improved Quality Controls Needed over Servicemembers' Employment Rights
Claims at DOL

GAO-07-907

Contents

Letter 1

Results in Brief 3
Background 6
DOL and OSC Both Had Policies and Procedures for Processing USERRA Claims
during the Demonstration Project 9
Under the Demonstration Project, Data Limitations at Both DOL and OSC and
Inconsistent Notifications at DOL 17
Three Primary Changes Have Occurred since the Demonstration Project Began
24
Conclusion 27
Recommendations for Executive Action 28
Agency Comments and Our Evaluation 28
Appendix I Objectives, Scope, and Methodology 32
Objective 1: Describe DOL's and OSC's Policies and Procedures for
Processing Federal Employees' USERRA Claims under the Demonstration
Project 32
Objective 2: Identify the Number of Federal Employees' USERRA Claims that
DOL and OSC Received and the Outcomes of These Claims, Including Average
Processing Times 33
Objective 3: Identify Changes to Federal Employees' USERRA Claims'
Processing since the Demonstration Project Began 38
Appendix II Comments from the Department of Labor 40
Appendix III Comments from the Office of Special Counsel 42
Appendix IV GAO Contact and Staff Acknowledgments 49

Tables

Table 1: Notifications of Rights in VETS's Closure Letters of Unresolved
Claims from Sample of Case Files Reviewed 20
Table 2: OSC Investigations Opened and Closed by Type of Claims from
February 8, 2005, through September 30, 2006 22
Table 3: OSC Average Processing Time by Type of Claim from February 8,
2005, through September 30, 2006 22
Table 4: Characteristics of DOL's and OSC's USERRA Claims' Processing
Models 24

Figure

Figure 1: USERRA Claims' Processing under the Demonstration Project 8

Abbreviations

DOL Department of Labor
MSPB Merit Systems Protection Board
OSC Office of Special Counsel
USERRA Uniformed Services Employment and Reemployment Rights Act of 1994
VBIA Veterans Benefits Improvement Act of 2004
VETS Veterans' Employment and Training Service

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separately.

United States Government Accountability Office
Washington, DC 20548

July 20, 2007

Congressional Committees

The Uniformed Services Employment and Reemployment Rights Act of 1994
(USERRA) protects the employment and reemployment rights of federal and
nonfederal employees who leave their employment to perform military or
other uniformed service.^1 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.^2 USERRA applies to a wide range of employers,
including federal, state, and local governments as well as private sector
firms. This report focuses on servicemembers who are employees of, prior
employees of, and applicants to federal executive branch agencies.^3

Under USERRA, an employee of or applicant to a federal executive branch
agency who believes that his or her USERRA rights have been violated may
file a claim with the Department of Labor's (DOL) Veterans' Employment and
Training Service (VETS), which investigates and attempts to resolve the
claim. If DOL's VETS cannot resolve the claim, DOL is to inform claimants
that they may request to have their claims referred to the Office of
Special Counsel (OSC),^4 an independent investigative and prosecutorial
agency with the primary mission of protecting the employment rights of
federal employees and applicants for federal employment. OSC determines
whether the evidence of referred claims is sufficient to resolve the
claimants' USERRA allegations and, if so, seeks voluntary corrective
action from the involved agency or initiates legal action against the
agency before the Merit Systems Protection Board (MSPB).^5

1Pub. L. No. 103-353, 108 Stat. 3149, 38 U.S.C. SS 4301-4334.

^2Acting to exercise or enforce a USERRA right, testifying in any
enforcement proceeding, or assisting in an investigation is protected
activity under USERRA.

^3For purposes of this report, we are using the term servicemember, but as
discussed earlier, individuals who are not servicemembers (or who have
merely applied to become a servicemember) may also be protected by
USERRA's discrimination and retaliation prohibitions.

^4DOL is also to inform claimants that they may file a complaint directly
with the Merit Systems Protection Board. If DOL's VETS cannot resolve
nonfederal USERRA claims, DOL is to inform claimants that they may request
to have their claims referred to the U.S. Attorney General. The Department
of Justice prosecutes nonfederal sector USERRA claims.

Under a demonstration project established by the Veterans Benefits
Improvement Act of 2004 (VBIA),^6 from February 8, 2005, through September
30, 2007, OSC is granted authorization to receive and investigate claims
and seek corrective action for individuals whose social security numbers
end in odd numbers. Claims by individuals whose social security numbers
end in even numbers are to be investigated by VETS, with the referral
process to OSC for these claims remaining unchanged. Under the
demonstration project, OSC is also authorized to handle any USERRA claim
brought by the USERRA claimant where OSC has authority to handle a related
prohibited personnel practice claim.^7 In addition, VBIA reinstated the
requirement that the Secretary of Labor in consultation with the U.S.
Attorney General and the Special Counsel prepare and transmit a USERRA
annual report to Congress on, among other matters, the number of USERRA
claims reviewed by DOL along with the number of claims referred to the
Department of Justice or OSC. The annual report is also to address the
nature and status of each claim and to state "whether there are any
apparent patterns of violation."

Furthermore, VBIA mandates that the Comptroller General of the United
States conduct periodic evaluations of the demonstration project and
submit to Congress a report on these evaluations. We briefed you on our
overall findings concerning the demonstration project on March 28, 2007,
and this report provides additional details. Our objectives for the report
were to (1) describe DOL's and OSC's policies and procedures for
processing federal employees' USERRA claims under the demonstration
project; (2) identify the number of federal employees' USERRA claims that
DOL and OSC received during the demonstration project and the outcomes of
these claims, including average processing times; and (3) identify changes
to federal employees' USERRA claims' processing since the demonstration
project began.

^5An independent, quasi-judicial agency in the executive branch, MSPB
serves as the guardian of federal merit principles.

^6See section 204 of Pub. L. No. 108-454, 118 Stat. 3598, 3606-3608, 38
U.S.C. S 4301 note.

^7There are 12 prohibited personnel practices including discrimination,
retaliation, or unauthorized preference or improper advantage. 5 U.S.C. S
2302.

To describe DOL's and OSC's policies and procedures for processing federal
employees' USERRA claims under the demonstration project, we reviewed
relevant documentation and interviewed knowledgeable DOL and OSC
officials. To identify the number of federal employees' USERRA claims that
DOL and OSC received and the outcomes of these claims, including average
processing time, we reviewed and analyzed data downloaded from VETS's
database, the USERRA Information Management System,^8 and OSC's case
tracking system, OSC 2000.^9 This report covers the period from the start
of the demonstration project on February 8, 2005, through fiscal year
2006. We also assessed the reliability of selected data elements on
federal employee claims from VETS's database and OSC's case tracking
system by tracing a statistically random sample of data to case files from
the start of the demonstration project on February 8, 2005, through July
21, 2006. Unless otherwise stated in the report, the data were
sufficiently reliable for the purposes of our review. To identify the
extent to which changes have occurred in federal employee USERRA claims'
processing since the demonstration project began, we reviewed USERRA and
VBIA, how USERRA claims of federal executive branch employees and
applicants for employment were processed before the demonstration project,
and how such claims were being processed under the demonstration project
by DOL and OSC. We also interviewed knowledgeable DOL and OSC officials.
We conducted our review in Washington, D.C., from May 2006 through May
2007 in accordance with generally accepted government auditing standards.

Results in Brief

Since the start of the demonstration project on February 8, 2005, both
DOL's VETS and OSC have had policies and procedures for receiving,
investigating, and resolving USERRA claims against federal executive
branch employers. VETS continues to conduct its investigation of USERRA
claims using a nationwide network of over a hundred investigators from
offices in every state. Under the demonstration project, OSC has
instituted a centralized approach for investigating USERRA claims, with a
single office of about half a dozen investigators and attorneys in its
Washington, D.C., headquarters.

^8The USERRA Information Management System is a Web-based case management
and reporting tool implemented by VETS in October 1996 that allows for
automated collection and investigator input of information regarding
USERRA claims and generation of reports for analysis of USERRA operations
and outcomes.

^9OSC 2000 was implemented by OSC in July 1999 and was designed to capture
and record data from the initial filing of a claim until the closure and
archiving of the case file and allows for queries that create a number of
management and workload reports.

Data for reporting outcomes were not sufficiently reliable at either
agency. At DOL, inaccurate data were included in the agency's annual
report to Congress, which could adversely affect Congress's ability to
assess how well federal USERRA claims are processed and whether changes
are needed in the future. Concerning the number of federal employees'
USERRA claims received for investigation, we found that for February 8,
2005, through September 30, 2006, VETS received a total of 166 unique
claims, although 202 claims were recorded as opened in VETS's database.
Duplicate, reopened, and transferred claims accounted for most of this
difference. Additionally, during our review of a random sample of VETS's
case files to assess the reliability of VETS's data, we found the dates
recorded for case closure in VETS's database were not reliable; that is,
VETS's database did not reflect the dates on the closure letters, which
VETS uses to indicate completion of the investigation, in over 40 percent
of sampled claims. VETS uses the date recorded for case closure in its
database to report to Congress on the number and percentage of claims it
closes within 90, 120, and 365 days. After identifying the correct dates
from the sample case files reviewed, we estimated that the average
processing time for the period of the sample ranged from 53 to 86 days. We
also found that the closed code, which VETS uses to describe the outcomes
of USERRA claims (i.e., claim granted, claim settled, no merit, withdrawn)
was not sufficiently reliable for reporting specific outcomes of claims.
From the start of the demonstration project through September 30, 2006,
OSC received 269 claims and took an average of 115 days to process these
claims. We found the closed dates in OSC's case tracking system to be
sufficiently reliable; however, the corrective action data element, which
OSC uses to describe the outcomes of USERRA claims, was not sufficiently
reliable for reporting specific outcomes of claims.

During our review of the sample of case files, we found that VETS did not
consistently notify claimants in writing of their right to have their
claims referred to OSC or to bring their claims directly to MSPB if the
case was not resolved by DOL. This may be due in part to the lack of
consistent instructions to investigators in the VETS's USERRA Operations
Manual as to when a claimant is to be notified of his or her right of
referral and the content of that notification. For example, one chapter
instructs investigators to notify the claimants of their right to referral
if there is no voluntary compliance by the employer, regardless of whether
the claim has merit, but another chapter instructs investigators to advise
claimants of their right only if the claimant does not concur with VETS's
determination. Lack of an internal process to routinely review
investigators' determinations, especially of unresolved claims, before
claimants are notified may also have contributed to the inconsistent
notification to servicemembers of their rights. Citing our preliminary
findings, DOL officials required each region to revise its guidance
concerning the notification of rights. This is a positive step. However,
uniform guidance will continue to be lacking until VETS completes
revisions to its USERRA Operations Manual, which is expected in October
2007, and reviews of investigators' determinations are not done on
unresolved claims on a consistent basis.

Three primary changes have occurred in federal employees' USERRA claims'
processing since the demonstration project. First, two agencies now
investigate USERRA claims from federal employees using two different
models for conducting investigations: (1) a nationwide approach by VETS
that gives much authority to individual investigators in resolving and
closing claims without review or approval of determinations on claims and
(2) a centralized approach by OSC that has a single individual reviewing
and approving determinations on all claims. Second, both DOL and OSC
officials have said that cooperation and communication between the two
agencies concerning USERRA claims has increased under the demonstration
project, and that this in turn has raised awareness of the issues related
to servicemembers who are federal employees. Third and finally,
technological enhancements have occurred, primarily on the part of VETS
since the demonstration project. For example, beginning with fiscal year
2007, an enhancement to VETS's database now enables the electronic
transfer of information between agencies. In addition, VETS implemented
electronic filing, which eliminates the need for initial data entry by
staff and avoids the introduction of error when staff manually enter data.

We recommend that the Secretary of Labor direct the Assistant Secretary
for Veterans' Employment and Training to (1) establish uniform procedures
and ensure that investigators are trained regarding the notification of
claimants on their right to refer claims to OSC or bring them directly to
MSPB, (2) develop an internal review mechanism for all unresolved claims'
determinations before claimants are notified of determinations and claims
are closed, and (3) establish a plan for implementing internal controls to
ensure the accuracy of data entered into VETS's database. We provided the
Secretary of Labor and the Special Counsel with a draft of this report for
their review and comment. DOL agreed with our recommendations and in
written comments discussed actions that it is taking to address the
recommendations. A copy of DOL's written comments are in appendix II, and
a copy of OSC's written comments are in appendix III.

Background

Before the demonstration project, VETS was authorized to investigate all
USERRA claims filed against federal executive branch agencies as well as
claims against state and local governments and private sector employers.
Under the demonstration project, VETS is authorized to investigate claims
filed against federal executive agencies by servicemembers with social
security numbers ending in even numbers; its role in handling other
nonfederal USERRA claims remains unchanged. In addition, under the
demonstration project, OSC is authorized to investigate and seek
corrective action for USERRA claims against federal executive agencies
from servicemembers whose social security numbers end in odd numbers.
Also, under the demonstration project, OSC is authorized to handle any
USERRA claim filed against federal executive branch agencies where the
claimant also brings a related prohibited personnel practice claim--that
is, a "mixed claim."

When a claimant with a social security number that ends in an odd digit
submits a claim to VETS, VETS sends the claim information to OSC either
electronically or via facsimile, depending on whether the claim was filed
electronically or in hard copy. VETS also forwards OSC the claim
information on all mixed claims. Similarly, when a claimant with a social
security number that ends in an even digit submits a claim to OSC, OSC
sends an e-mail notification and the file to VETS headquarters and informs
the claimant of the transfer of the claim to VETS.

OSC's responsibility under USERRA for conducting independent reviews of
certain claims after they are investigated by VETS remained unchanged
during the demonstration project. For those claims VETS investigates and
is unsuccessful in resolving, a claimant employed by a federal executive
agency may request to have his or her USERRA claim referred to OSC. Before
sending the referred claim to OSC, VETS prepares a memorandum of referral,
which it sends with the investigative file to a VETS regional office for
review; the regional office conducts a review and sends the file to a DOL
regional Office of the Solicitor, which prepares a legal analysis of the
claim and then refers the claim to OSC. OSC reviews the case file, and if
satisfied that the evidence is sufficient to resolve the claimant's
allegations and that the claimant is entitled to corrective action, OSC
begins negotiations with the claimant's federal executive branch employer.
According to OSC, if an agreement for full relief via voluntary settlement
by the employer cannot be reached, OSC may represent the servicemember
before MSPB. If MSPB rules against the servicemember, OSC may appeal the
decision to the U.S. Court of Appeals for the Federal Circuit. In
instances where OSC finds that claims do not have merit, it informs
servicemembers of its decision not to represent them and that they have
the right to take their claims to MSPB without OSC representation. Figure
1 depicts USERRA claims' processing under the demonstration project.

Figure 1: USERRA Claims' Processing under the Demonstration Project

Note: VBIA did not change VETS's formal investigative process or the
referral phase under the demonstration project.

aOSC is also authorized to handle any USERRA claim where OSC has authority
to handle a related claim--that is, one alleging a related prohibited
personnel practice--brought by the USERRA claimant.

In October 2005, we issued a report that reviewed the extent to which the
four USERRA coordinating agencies--DOL, OSC, and the Departments of
Defense and Justice--(1) had data that indicate the level of compliance
with USERRA, (2) conducted educational outreach, and (3) addressed
servicemember complaints.^10 In February 2007, we issued a report that
assessed the status of the Department of Defense's effort to capture
reservists' employer data, the four USERRA coordinating agencies'
processes to track and address reservists' USERRA claims, and the
agencies' efforts to track reservists' USERRA claims related to
disabilities incurred while on active duty.^11

DOL and OSC Both Had Policies and Procedures for Processing USERRA Claims during
the Demonstration Project

Within their different organizational structures, both DOL and OSC had
policies and procedures for receiving, investigating, and resolving claims
and, for DOL, referring claims to OSC.

Organizational Structure

DOL's responsibility concerning servicemembers' claims for USERRA rights
and benefits is carried out primarily through the efforts of VETS, which
is led by an assistant secretary supported by staff in a national office,
six regions, and offices in every state. A VETS official said that in
fiscal year 2006, of 189 VETS investigators authorized around the country
to conduct USERRA investigations, 115 were assigned as primary
investigators on USERRA claims during fiscal year 2006. The remaining 74
investigators include regional administrators and management who were
authorized to investigate USERRA claims but were not assigned to any. VETS
investigators also have responsibilities concerning a federal law
requiring that preference be given to veterans in federal hiring and
retention during reductions in force.^12 VETS investigators are required
to complete three courses: one on the basics of USERRA law, one on
advanced investigative techniques, and one on veterans' preference issues,
which includes a section on prohibited personnel practices. In addition,
in fiscal year 2006, VETS designated 7 senior investigators who are to
conduct investigations, assist investigators, and review the work of
investigators in their six respective regions and the national office.

^10GAO, Military Personnel: Federal Management of Servicemember Employment
Rights Can Be Further Improved, [45]GAO-06-60 (Washington, D.C.: Oct. 19,
2005).

^11GAO, Military Personnel: Additional Actions Needed to Improve Oversight
of Reserve Employment Issues, [46]GAO-07-259 (Washington, D.C.: Feb. 8,
2007).

To ensure consistency and understanding of relevant legal issues between
offices and organizations, an official from DOL's Office of the Solicitor
said that the Office of the Solicitor conducts a monthly conference call
with the regional Solicitors' Offices in which officials from OSC and the
Department of Justice take part. According to the senior investigator from
VETS's national office, the senior investigators also conduct a monthly
conference call and hold quarterly meetings in one of the regional offices
around the country and invite participation from the Office of the
Solicitor, the Department of Justice, OSC, and the Department of Defense's
Employer Support of the Guard and Reserve, which provides informal
assistance in resolving conflicts arising from an employee's military
commitment before a formal claim is filed with VETS or OSC.

Along with their USERRA investigation and mediation responsibilities,
which according to VETS officials take on average about one-third of VETS
investigators' time, investigators conduct briefings to educate employers
(federal and nonfederal) and servicemembers (at mobilizations and
demobilizations) about USERRA requirements and responsibilities. In
addition, they handle service-related employment and reemployment
questions that are directed to their offices. According to VETS officials,
after VETS provides technical assistance, including education and outreach
briefings as well as informal requests for information, to servicemembers
informally, many servicemembers decide not to file formal claims. In
addition, after providing such assistance, VETS also encourages
servicemembers to go to the Department of Defense's Employer Support of
the Guard and Reserve to try and resolve a concern through informal
resolution. According to VETS's technical assistance logs, in fiscal year
2006, VETS received 7,044 telephone and 1,584 written (including e-mail)
inquiries and conducted 1,088 presentations and briefings.

^12Under the Veterans Employment Opportunities Act of 1998, Pub. L. No.
105-339 (Oct. 31, 1998), an individual who believes his or her preference
rights have been violated may file a complaint with VETS within 60 days
after the alleged violation, and if VETS's efforts do not result in
resolution of the complaint, the individual may appeal the matter to MSPB,
5 U.S.C. S 3330a.

OSC uses a centralized approach for processing USERRA claims, under the
demonstration project, in its Washington, D.C., headquarters and has a
single individual (an attorney)--the USERRA Unit Chief--responsible for
data entry, review, and oversight of the investigation, analysis,
resolution, and prosecution of all USERRA claims. OSC established a USERRA
Unit at its headquarters in January 2005 to investigate, mediate, and, as
necessary, litigate USERRA and other federal employment rights claims
involving servicemembers. OSC's USERRA Unit currently consists of the Unit
Chief, three investigators, and three attorneys. According to OSC
officials, the members of the USERRA Unit spend most of their time on
USERRA claims, but they also handle other prohibited personnel practice
claims brought by servicemembers and concerning servicemember issues.^13
According to OSC, all new USERRA Unit members are provided with two
structured USERRA training sessions. In addition, OSC's USERRA Unit Chief
stated that he meets on a weekly basis with each unit member to discuss
the status of his or her investigations and analyses, and the entire team
meets on a biweekly basis (e.g., to discuss changes in the law,
investigative techniques, and other issues that may affect the operations
of the unit). OSC USERRA staff also have provided off-site education and
outreach to federal agencies (e.g., human resources specialists and
attorneys) about USERRA, including a seminar at the annual Federal Dispute
Resolution Conference and a basic and advanced USERRA course at the Judge
Advocate General's Legal Center and School in Charlottesville, Virginia.

Receiving Claims

A servicemember can file a formal USERRA claim against his or her civilian
employer directly with DOL using a VETS Form 1010 electronically at
[47]https://vets1010.dol.gov or can file a signed printed copy of the
claim form with the Secretary of Labor by mail or fax. Servicemembers also
can file indirectly through the VETS electronic USERRA Advisor link, which
contains an interactive question-and-answer component to answer questions
for potential claimants on employee and employer rights and
responsibilities and provides access to the electronic VETS Form 1010.
Electronic filing of claims directly enters the claimant's information
into VETS's E-filing database first and then into VETS's database, records
the date the claim was received, and sends an automatic response to the
claimant. According to a DOL official, an individual other than the
claimant may file a claim on behalf of a servicemember when the individual
has a signed power of attorney that complies with the laws of the state
where the claim is filed. The official said that although this happens
rarely, it could happen when a servicemember is deployed; then a claim
could be filed, for example, by a spouse or veteran's service
organization.

^13For example, committing a knowing violation of veterans' preference
rights is a prohibited personnel practice under 5 U.S.C. S 2302 (b)(11).

Any person may contact OSC via mail, e-mail, telephone, fax, OSC's
Internet hotline, or in person to seek technical assistance about USERRA
or to file a claim. OSC will open an investigation once it receives
information that allows OSC to determine whether it has jurisdiction over
the allegation and to begin a focused inquiry--a form is not required to
file a claim. The claimant may print out OSC-Form 14 and mail or fax it.
The claimant also may save it as a portable document format file and
e-mail it, as the form is not available for direct electronic filing.^14
According to an OSC official, OSC is awaiting the outcome of the
demonstration project before implementing electronic filing of USERRA
claims. According to the USERRA Unit Chief, anyone may report USERRA
violations on a claimant's behalf, but under the Privacy Act, the claimant
must sign a consent form, which identifies three levels of
confidentiality--none, partial, or complete--for OSC to open a case in its
case tracking system. In addition, according to OSC, USERRA Unit
investigators and attorneys may obtain the claimant's consent
telephonically and document the telephone conversation, which is standard
operating practice for all of OSC's investigative divisions.

Investigating Claims

Claims to be reviewed by VETS are assigned to an investigator located
close to the claimant's worksite. According to a DOL official, each region
has its own procedures for assigning an investigator to a claim, and
regional administrators are responsible for determining the workload for
their investigators. Unlike claims that are filed electronically, claims
that are submitted to VETS by hard copy must be entered into VETS's
database by an investigator once an investigation is begun. VETS's USERRA
Operations Manual states that a case should be opened immediately upon
receipt of a signed VETS Form 1010, unless the written information does
not provide enough data to establish eligibility; in that case, the
investigator should contact the claimant for clarification before opening
a case.

^14OSC provides a direct electronic filing option for claims alleging
prohibited personnel practices, OSC-Form 11, which has been used for
filing USERRA claims.

At OSC, after entering the claim in OSC's case tracking system, the USERRA
Unit Chief assigns the claim to either an investigator, or an attorney, or
both, depending on the claim's complexity. The USERRA Unit Chief stated
that investigators or attorneys are assigned according to their individual
qualifications and caseloads. At the time a claim is opened in OSC's case
tracking system, the USERRA Unit Chief sends an acknowledgement letter and
consent form (if a signed form has not been received) to the claimant.
When the claimant's original submission does not include enough
information to begin an investigation, the USERRA Unit Chief may ask
relevant questions in the acknowledgment letter. When the claimant's
original submission raises issues over which OSC may not have
jurisdiction, the acknowledgment letter is to inform the claimant of other
potential avenues of redress.

VETS investigators and OSC investigators or attorneys are first to review
the claim information. VETS's USERRA Operations Manual states that
initially the investigator is to identify the alleged violation and the
remedies available; identify the applicable section(s) of the statute;
determine whether the claimant is eligible for USERRA assistance; and if
not, open and close the case file and notify the claimant of the result.
Although OSC's USERRA Unit Operations Manual states that the assigned
investigator or attorney is to perform a similar initial review of the
case, according to OSC, in everyday practice the USERRA Unit Chief
performs this task during his initial review of the file when entering the
claim into OSC's case tracking system and so informs the assigned
investigator or attorney of his assessments.

Concerning evidence gathering, both agencies' general policy is to contact
the employer during the investigation with the consent of the claimant.
VETS requests the employer's position regarding the allegations of the
claim and documentation to support that position. According to the VETS's
USERRA Operations Manual, investigations seek evidence to determine
whether the case has merit and generally include interviews and document
reviews to develop evidence admissible in court. Within 30 days of
starting a formal investigation, the investigator is to develop a written
investigative plan, which among other things, is to identify any evidence
needed to make a factual determination; the means through which evidence
is to be obtained (e.g., interview, records review); and all steps
necessary to arrive at a determination of the merits of the claim.
According to OSC, a typical USERRA investigation includes sending written
questions to and requesting documents of the employer and, upon receipt of
such evidence, interviewing relevant witnesses and subjects. Additionally,
according to OSC's USERRA Unit Operations Manual, where appropriate, OSC
also requests copies of e-mail communications between relevant witnesses.

Concerning legal analysis, an official from DOL's Office of the Solicitor
said that if an investigator has a question or needs legal assistance,
attorneys from the Office of the Solicitor are available for consultations
at any time. The official said that attorneys from the Office of the
Solicitor are only assigned when contacted by VETS investigators or when a
regional office is contacted by the public. He added that an attorney from
the Office of the Solicitor is assigned to every case that is a referral,
which involves a legal review of a completed case file, but not to every
case during an investigation. According to OSC's USERRA Unit Chief, a
legal analysis is conducted during each USERRA investigation with
investigators and attorneys using a collaborative team approach throughout
the investigation.

Resolving Claims

According to the VETS's USERRA Operations Manual, a VETS investigator may
hold a case resolution conference at any stage of the claims process when
the investigator believes it may help the claimant and employer reach
agreement, and should be attempted when the investigation has been
completed and letters and telephone calls are unable to resolve the case.
Once the VETS investigator completes the investigation and arrives at a
determination on the claim, the investigator is to contact the claimant,
discuss the findings, and send a letter to the claimant notifying him or
her of VETS's determination. VETS's USERRA Operations Manual does not
specify the date an investigator should record in VETS's database as the
date the investigation is closed. VETS officials told us that the date
closed in VETS's database should be the date of the closure letter, or if
VETS requests additional information, the date by which the claimant
needed to provide the information to avoid, for example, a determination
of "no merit."

According to OSC's USERRA Unit Operations Manual, once the OSC
investigator or attorney completes an investigation, he or she is to
discuss his or her determination with the USERRA Unit Chief. If the USERRA
Unit Chief agrees that further investigation is not warranted on a case
not having merit, the investigator or attorney is to submit for the USERRA
Unit Chief's review and approval the summary of investigation, which
includes the closure letter detailing the factual and legal basis of the
determination and a rights letter providing information to the claimant
about his or her right to file a USERRA appeal with MSPB. According to
OSC, when a case has merit and cannot be resolved through discussions with
the agency, the investigator or attorney may prepare a demand letter for
the Unit Chief's review. The demand letter explains the factual and legal
bases for OSC's determination and the relief being sought from the agency
and is viewed by OSC as antecedent to formal litigation. OSC's USERRA Unit
Operations Manual states that the assigned investigator or attorney is to
provide the closing information to the USERRA Unit Chief to enter in OSC's
case tracking system but does not specify the date to be used when closing
a case. OSC's USERRA Unit Chief said that the date entered into OSC's case
tracking system reflecting when the case is officially closed is the same
as the date the closure letter is sent to the claimant.

  Quality Assurance/Oversight

VETS has no internal process to routinely review investigators'
determinations before claimants are notified of them. According to a VETS
official, there is no requirement that a supervisor review investigators'
determinations before notifying the claimant of the determination.
Instead, VETS's policy of reviewing claims prior to notifying claimants of
the determinations is limited to a random sample of 10 percent of all open
claims at the regional level, to ensure that policies and procedures have
been followed and all available witnesses have been interviewed, and to
any claim that takes more than 90 days, to process to determine why the
claim is still open. VETS officials said any claim still open after 90
days appears on a "red flag report" and is to be reviewed by the senior
investigator for the region in which the claim is being processed. Other
reviews take place after the claim has been closed. According to VETS
officials, senior investigators are to review a random sample of 25
percent of closed claims at the regional level. Legal reviews by a DOL
regional Office of the Solicitor only occur if a claimant requests to have
his or her claim referred to OSC.

OSC's policy is that the USERRA Unit Chief, an attorney, provides ongoing
guidance, reviews all work products in a case, and reviews and approves
the letter notifying the claimant of OSC's determination and, in a case
with merit, the demand letter to the agency, prior to sending the letters.

  Request for Referral of Claims from VETS to OSC

Under USERRA and the demonstration project, when VETS is unsuccessful in
resolving servicemembers' claims, DOL is to notify servicemembers who
filed claims against federal executive branch agencies that they may
request to have their claims referred to OSC or file directly with MSPB. A
VETS official estimated that about 7 percent of claimants ask for their
claims to be referred to OSC or, for nonfederal servicemembers, the
Department of Justice.

After Claimant Requests a Referral, Two Additional Reviews at DOL Take Place

According to VETS's USERRA Operations Manual, after a claimant requests a
referral to OSC in writing, the VETS investigator is to prepare a report
of investigation called the memorandum of referral, which provides a
description of the case and supporting documentation. This triggers two
additional sequential reviews at DOL. The memorandum and the case file are
then sent to a VETS regional office, which is to review the memorandum of
referral to ensure that the investigation is thorough and that the
documentation in the file is accurate and sufficient. According to VETS's
USERRA Operations Manual, if the regional office review finds the
investigation is incomplete, it is to return the file to the VETS
investigator and request additional investigation on specific points. When
the regional office is satisfied as to the scope and quality of the
investigation, the regional office is to prepare a memorandum and forward
it and the case file for review by a DOL regional Office of the Solicitor
to assess the claim's legal basis and prepare a separate analysis before
sending the file to OSC. A VETS regional office and a DOL regional Office
of the Solicitor separately make recommendations on the merits of the
claim.

Even if DOL finds that a claim has no merit, DOL is required by USERRA to
send a federal sector claim to OSC if the claimant requested a referral.
According to an official from the Office of the Solicitor, this office's
review is not required by law or regulation, but the practice is
established through memorandums of understanding with OSC and, for
nonfederal claims, the Department of Justice. The official said that both
agencies have indicated that they find the practice useful. He added that
if OSC did not find the analyses to be valuable, the memorandum of
understanding could be renegotiated so as to revise or discontinue the
existing process. According to OSC's USERRA Unit Chief, OSC reviews the
Office of the Solicitor's letter of referral, which OSC finds useful for
providing a summary of a case, but does not rely on the Office of the
Solicitor's legal analysis. Instead, OSC does an independent legal review
of the case as required by USERRA to determine whether it is reasonably
satisfied that the claimant is entitled to the rights and benefits sought.

Under the Demonstration Project, Data Limitations at Both DOL and OSC and
Inconsistent Notifications at DOL

We found data limitations at both agencies that made claim outcome data
unreliable. At DOL, data limitations affected DOL's annual report to
Congress. We also found that DOL did not consistently notify claimants
concerning the right to have their claims referred to OSC for further
investigation or to bring their claims directly to MSPB if DOL did not
resolve their claims.

VETS's Data Limitations Affect the Determination of the Number of Claims
Processed, Outcomes, and Average Processing Time

Under VBIA, DOL is to prepare an annual report to Congress to include,
among other matters, the number of claims reviewed, the number of cases
referred to the U.S. Attorney General or OSC, and the nature (type) and
status of each case. Specifically, VETS provides information on the number
and percentage of claims opened by type of employer, issues raised--such
as discrimination or refusal to reinstate--outcome, and total time to
resolve.

The number of claims shown in VETS's database exceeded the number of
unique claims VETS processed. Data from VETS's database showed that from
the start of the demonstration project through September 30, 2006, DOL
received 202 claims.^15 We found, however, that of these 202 claims, VETS
investigated a total of 166 unique claims during this time. The difference
of 36 claims was a result of

           o reopened claims for the same claimant being recorded as separate
           claims,

           o duplicate filings (i.e., filed by the same claimant within 3
           days and then closed),

           o claims transferred to OSC after being opened in VETS's database
           (i.e., those with odd social security numbers and allegations of
           prohibited personnel practices),

           o claims originally opened prior to the demonstration project, and

           o one veterans' preference claim erroneously opened as a USERRA
           claim.

^15We excluded from our analysis claims brought by seven Transportation
Security Administration security screeners and supervisory security
screeners, who are not covered by USERRA.

Of the 166 unique claims investigated by VETS from the start of the
demonstration project through September 30, 2006, it closed 155, or 93
percent of them. The remaining 11 claims were still being investigated as
of September 30, 2006.

Because of our finding concerning the accuracy of the number of unique
claims in VETS's database during the demonstration project, we reviewed
the data DOL reported in its most recent USERRA annual report to Congress
for fiscal year 2005. We found that DOL overstated the number of claims
filed against federal executive branch agencies because it did not account
for duplicate, reopened, transferred, and erroneously opened cases,
resulting in an inaccurate number of investigations opened and closed.
Specifically, DOL reported that it opened 146 claims involving federal
employers, reflecting the number of claims in VETS's database for fiscal
year 2005. Our analysis, however, showed that of the reported 146 claims,
117 were claims actually investigated by VETS in fiscal year 2005.

Additionally, during our review of a random sample of 54 VETS case files
to assess the reliability of VETS's data, we found the closed dates in
VETS's database did not match the date contained in the closure letter to
the claimant in 22 of 52 claims reviewed.^16 According to VETS officials,
the date closed in VETS's database should agree with the date of the
closure letter, or if VETS requests additional information, the date by
which the claimant needed to provide the information to avoid, for
example, a determination of "no merit." For those claims where there was
not a match, the difference in the number of days between the actual
closed date in the closure letter and in VETS's database averaged 67 days.
Moreover, in nearly all claims where the closed dates in VETS's database
did not match the date in the closure letter, the closed date in VETS's
database preceded the date in the letter. VETS's USERRA Operations Manual
is silent on the date to be used for the official closure of an
investigation in VETS's database, which could have contributed to some of
the inaccuracies we found in closed dates.

^16We excluded claims if information was missing from the case file, thus
preventing a comparison between data in VETS's database and the case file.
Thus, 2 of the 54 claims in the sample were excluded for assessing the
reliability of date closed. See app. I for additional information on our
review of case files.

Because DOL reports annually to Congress on the number and percentage of
claims it closed within 90, 120, and 365 days, such inaccuracies in the
number of claims reported and the closed dates also affect the quality of
information reported to Congress on the time it takes VETS to process
claims. VETS senior officials indicated that they had identified problems
similar to those we found in a particular region concerning inaccurate
closed dates. Citing our preliminary findings, in December 2006, one
region issued a memorandum instructing investigators to make the closed
date in VETS's database match the date of the closure letter to the
claimant.

Because the closed dates entered in VETS's database were not sufficiently
reliable, we could not use the dates for the time VETS spent on
investigations in the database to accurately determine DOL's average
processing time. Instead, we used the correct closed dates from the case
files in our random sample and statistically estimated the average
processing time for VETS's investigations from the start of the
demonstration project through July 21, 2006--the period of our sample.
Based on the random sample, there is at least a 95 percent chance that
VETS's average processing time for investigations ranged from 53 to 86
days.

Additionally, during our review of case files, we found that the closed
code, which VETS uses to describe the outcomes of USERRA claims (i.e.,
claim granted, claim settled, no merit, withdrawn) was not sufficiently
reliable for reporting specific outcomes of claims. Therefore, the
information that DOL reports to Congress on the number and percentage of
claims by outcome is not reliable.

DOL Did Not Consistently Notify Claimants of Right of Referral

At the conclusion of an investigation when VETS is not successful in
resolving the claim, USERRA requires VETS to notify servicemembers with
claims against federal executive branch agencies of their right to have
their claims referred to OSC or to bring their claims directly to MSPB.
According to a VETS official, claimants should be notified in writing of
the right to referral. For the 54 claims in our sample of VETS's case
files, we found that in the 28 claims VETS was not successful in resolving
(i.e., claims not granted or settled), VETS failed to notify claimants of
the right to referral in the closure letter in half of these claims. VETS
correctly notified five claimants and notified others of only some of
their options.^17 In addition, VETS incorrectly advised some
servicemembers of a right applicable only to nonfederal claimants--to have
their claims referred to the Department of Justice or to bring their
claims directly to federal district court. Table 1 shows the extent to
which claimants were notified in the closure letter of their right to have
their unsuccessful claims referred.

Table 1: Notifications of Rights in VETS's Closure Letters of Unresolved
Claims from Sample of Case Files Reviewed

Description of notification in closure letter          Number of claimants 
No notification provided                                              14^a 
Refer to OSC/bring directly to MSPB^b                                    5 
Refer to OSC                                                             1 
Bring directly to MSPB                                                   1 
Refer to the Department of Justice^c                                     1 
Refer to OSC/bring directly to federal district                          2 
court^d                                                                    
Refer to the Department of Justice/ bring directly to                    4 
federal district court^c,d                                                 
Total                                                                   28 

Source: GAO analysis of VETS's USERRA case files.

Notes: We excluded claims we could identify as (1) subject to the Defense
Finance and Accounting Service administrative procedure to resolve claims
under Butterbaugh v. Department of Justice, 336 F.3d. 1332 (Fed. Cir.
2003) holding that federal agencies had improperly charged reserve
component members' military leave for nonworkdays, (2) a veterans'
preference claim that was inadvertently opened as a USERRA claim, or (3) a
file of a duplicate claim.

aWe excluded two instances concerning withdrawals. If individuals withdraw
their claims, VETS would not be obligated under USERRA to send a closure
letter notifying those individuals of their right to have their claims
referred to OSC or to bring their claims directly to MSPB.

bThis is required by USERRA for claims against federal executive branch
agencies.

cReferral of claims to the Department of Justice is a right available to
nonfederal claimants.

dThe right to bring claims directly to federal district court is a right
available to claimants of private employers and local government
employers.

^17See app. I for additional information on our analysis of claimaints'
notification of their rights.

Two possible reasons for VETS's failure to notify servicemembers in
writing of their rights include VETS's lack of an internal review process
and the inconsistent guidance provided to investigators in its USERRA
Operations Manual. As discussed earlier, we found that VETS has no
internal process to routinely review claim determinations prior to
informing claimants of such determinations or closing the claim.

Additionally, VETS failed to provide clear guidance in its USERRA
Operations Manual on when to notify claimants of their right to referral,
the content of the notification, or any guidance on notifying claimants of
their right to bring their claims directly to MSPB. For example, one
chapter instructs investigators to notify the claimants of their right to
referral if there is no voluntary compliance by the employer, regardless
of whether claim has merit, but in another instructs investigators to
advise claimants of their right only if the claimant does not concur with
the determination. Further, the sample closure letters to claimants
contained in the manual are not consistent regarding notifying claimants;
those that contain a notification advise claimants of a right to request
referral to the U.S. Attorney General, a right applicable to nonfederal
claimants. Additionally, VETS's USERRA Operations Manual does not instruct
investigators to notify claimants of their right to bring their claims
directly to MSPB. VETS senior officials indicated that they had identified
problems similar to those we found in a particular region concerning the
lack of consistent notification of the right to referral. It is not clear
what course of action VETS took at that time.

Following a briefing on our preliminary findings in December 2006, a VETS
official told us that because VETS's USERRA Operations Manual had not
clearly articulated when and how to notify claimants of their rights, some
investigators were not aware that claimants should be notified in writing
at the end of the investigation. Citing our preliminary findings, VETS
officials required each region to revise its guidance concerning the
notification of rights. One region issued a memorandum providing specific
additional guidance to investigators to notify claimants in the closure
letter of their right to a referral or to bring their claims directly to
MSPB and provided revised sample closure letters for federal and
nonfederal USERRA claims, which other regions were to use as a model. Each
region will have its own guidance until VETS completes revisions to its
USERRA Operations Manual,^18 which VETS senior investigators began
updating January 2007. The manual is expected to be issued in October
2007.

Claims Processed by OSC under the Demonstration Project

From the start of the demonstration project through fiscal year 2006, OSC
received 269 USERRA claims and closed 176, or 65 percent of them.^19 The
remaining 93 claims were still being investigated as of September 30,
2006. More than 75 percent of these claims included only allegations of
USERRA violations. The remaining were mixed claims--allegations of both
USERRA violations and a related prohibited personnel practice. Table 2
shows the number and type of claims OSC received and closed during the
demonstration project.

Table 2: OSC Investigations Opened and Closed by Type of Claims from
February 8, 2005, through September 30, 2006

Type of claim Number opened Number closed Percentage closed 
USERRA only             208           141                68 
Mixed                    61            35                57 
All                     269           176                65 

Source: GAO analysis of OSC data.

Table 3 shows OSC's average processing time overall and for both USERRA
only and mixed claims.

Table 3: OSC Average Processing Time by Type of Claim from February 8,
2005, through September 30, 2006

Type of claim Average processing time in days 
USERRA only                               113 
Mixed                                     123 
All                                       115 

Source: GAO analysis of OSC data.

^18VETS periodically has made changes to its USERRA Operations Manual,
issued in 1995, through memorandums addressed to regional administrators
and directors for Veterans' Employment and Training.

^19We excluded from our analysis 10 claims brought by Transportation
Security Administration security screeners and supervisory security
screeners, who are not covered by USERRA.

We assessed the reliability of selected data elements in OSC's case
tracking system in an earlier report.^20 We found the closed dates in
OSC's case tracking system to be sufficiently reliable; however, the
corrective action data element, which would be used for identifying the
outcomes of USERRA claims, was not sufficiently reliable for reporting
specific outcomes of USERRA claims.

Claims Referred Took Several Months to Process

We separately reviewed those claims that VETS investigated but could not
resolve and for which claimants requested referral of their claims to OSC.
For these claims, two sequential DOL reviews take place: A VETS regional
office prepares a report of the investigation and makes a recommendation
on the merits, and a regional Office of the Solicitor conducts a separate
legal analysis and also makes a recommendation on the merits. From
February 8, 2005, through September 30, 2006, 11 claimants asked VETS to
refer their claims to OSC. Of those 11 claims, 6 claims had been reviewed
by both a VETS regional office and a regional Office of the Solicitor and
sent to OSC, and 5 were still at DOL. The Office of the Solicitor
recommended litigation on 1 of the claims sent to OSC. For those 6 claims,
it took from initial investigation through the regional office and
regional Office of the Solicitor reviews an average of 247 days or about 8
months before the Office of the Solicitor sent the claims to OSC. Because
of the data limitations concerning the reliability of investigations'
closed dates in VETS's database, it was not possible to isolate the length
of time for the two additional reviews.

Of the six referred claims that OSC received from DOL during the
demonstration project, OSC declined to represent the claimant in five
claims as of September 30, 2006, and was still reviewing one of them. OSC
took an average of 61 days to independently review the claims and
determine if the claims had merit and whether to represent the claimants.

^20GAO, Office of Special Counsel Needs to Follow Structured Life Cycle
Management Practices for Its Case Tracking System, [48]GAO-07-318R
(Washington, D.C.: Feb. 16, 2007).

Three Primary Changes Have Occurred since the Demonstration Project Began

Three primary changes have occurred in federal employees' USERRA claims'
processing since the start of the demonstration project. First, two
agencies now receive and process claims with two different models for
investigating USERRA claims from federal executive branch employees--a
nationwide approach by VETS that gives much authority to individual
investigators in resolving and closing claims and a centralized approach
by OSC that has a single individual entering claims into the case tracking
system, providing guidance, and reviewing all claims. Second, both DOL and
OSC officials have said that since the demonstration project began,
cooperation and communication concerning USERRA claims has increased, in
turn raising awareness of the issues related to servicemembers who are
federal executive branch employees. Finally, technological enhancements
have occurred during the demonstration project. For example, an
enhancement to VETS's database enables the electronic transfer of
information between agencies. In addition, VETS implemented electronic
filing, which eliminates the need for initial data entry by staff.

Two Models Used for Processing Claims

As we discussed earlier, under the demonstration project, two different
models have been used for investigating USERRA claims from federal
employees. Table 4 identifies characteristics of DOL's and OSC's models
for processing USERRA claims.

Table 4: Characteristics of DOL's and OSC's USERRA Claims' Processing
Models

Characteristic      DOL                         OSC                        
Structure of office Nationwide network with     Centralized USERRA Unit    
                       investigators at VETS's     within OSC headquarters    
                       offices in each state, six  with investigators and     
                       regional offices, and one   attorneys working together 
                       national office.            on fact-finding and legal  
                                                   analysis.                  
Responsibilities of Investigators process both  Investigators and          
staff               federal and nonfederal      attorneys process federal  
                       USERRA and veterans'        employees' USERRA claims,  
                       preference claims and       process prohibited         
                       provide outreach and        personnel practice claims  
                       education to servicemembers filed by servicemembers,   
                       and employers.              and provide outreach and   
                                                   education to employees and 
                                                   employers.                 
Investigative       Investigators are to        Investigators or attorneys 
approach            investigate and attempt to  are to investigate and     
                       resolve claims, prepare an  attempt to resolve claims, 
                       investigative plan for      prepare a summary of       
                       claims taking more than 30  investigation with         
                       days, and send a letter     supporting documentation,  
                       notifying claimant of the   and provide a detailed     
                       determination. In the case  letter to the claimant     
                       of referrals, investigators (and for claims with       
                       prepare a memorandum of     merit, to the agency)      
                       referral with supporting    containing the factual and 
                       documentation.              legal basis for its        
                                                   conclusions.               
Oversight           There is no required        The USERRA Unit Chief      
                       internal review of          provides ongoing guidance, 
                       investigative findings and  reviews all work products  
                       closure letters prior to    in a case, and reviews and 
                       closure letters being sent  approves the letter        
                       to the claimant.            notifying the claimant of  
                                                   OSC's determination and,   
                       VETS senior investigators   in a case with merit, the  
                       are to review claims taking letter to the agency,      
                       longer than 90 days and a   prior to sending the       
                       random sample of 25 percent letters.                   
                       of all closed claims and 10                            
                       percent of all open claims                             
                       at the regional level.                                 

Source: GAO.

Note: VBIA did not change VETS's formal investigative process or the
referral phase under the demonstration project.

Communication Concerning USERRA Claims Has Increased since the Demonstration
Project Began

Under the demonstration project, both OSC and VETS officials said that
cooperation and communication concerning USERRA claims has increased
between them. Increased communication has in turn, according to these
officials, raised the awareness among these two agencies of the issues
related to servicemembers who are federal employees. For example, OSC and
DOL officials mentioned working together to decide how to process certain
types of frequently occurring cases concerning leave issues affecting some
servicemembers.^21 OSC also has been meeting monthly with VETS and Office
of the Solicitor officials, and OSC participates in the Office of the
Solicitor's monthly telephone conference calls to discuss selected claims
they are working on, offer legal advice, and discuss what is happening
during each agency's investigative process. Officials from the Office of
the Solicitor and OSC said that these meetings and telephone conferences
have been very useful and that during them they discuss issues related to
federal employees and how the demonstration project is being handled by
DOL and OSC.

Technological Enhancements Have Improved USERRA Claims' Processing since the
Demonstration Project Began

Following a recommendation in our October 2005 report,^22 VETS implemented
an enhancement to its database in October 2006 to enable the four USERRA
coordinating agencies--DOL, OSC, and the Departments of Defense and
Justice--to electronically transfer case information between agencies.
Officials from each of the USERRA coordinating agencies are also able to
see such claim information as whether a case is open or closed, which
agency is currently addressing it, and how long it took to resolve. As
such, the database enhancement grants OSC limited access to demonstration
project data in VETS's database, including the ability to view summary
data for federal employer cases opened by VETS during the demonstration
project period (e.g., case numbers, employer, open and closed dates, and
issues concerning a case) and allows OSC to enter case data for
demonstration project cases OSC has opened since October 1, 2006. ^23
According to OSC's USERRA Unit Chief, to the extent consistent with the
consent provided by claimants, he has been entering information on
demonstration project claims into VETS's database. Officials from each
coordinating agency are able to produce a report containing aggregate data
on the claims over which they have jurisdiction. For investigations opened
by VETS, only VETS has visibility over a claim's history, from its
submission to VETS until it is resolved. The other coordinating agencies
have visibility over only those claims that were opened by or referred to
them. According to VETS officials, when the enhancement was being
developed, the Office of the Solicitor determined that because of the
sensitive nature of the information that the enhanced VETS's database may
contain, except for VETS, full access to all data fields for a claim would
be limited to those cases within each agency's jurisdiction.

^21These include claims resulting from the Federal Circuit Court of
Appeals decision in Butterbaugh v. Department of Justice.

^22 [49]GAO-06-60 .

Another technological enhancement by VETS is the implementation of
electronic filing.^24 A VETS official told us that from July 18, 2005, the
date on which electronic filing of USERRA claims at VETS became available,
through September 30, 2006, about 39 percent of USERRA claims from
servicemembers employed by federal executive branch agencies were filed
with VETS electronically. As we said earlier, electronic filing of claims
directly enters the information into VETS's E-filing database first and
then into VETS's database, records the date the claim was received, and
sends an automatic response to the claimant. This eliminates the need for
initial data entry by staff and avoids the introduction of error when
staff manually enter data. Also, when a claimant files electronically,
VETS's database sends an automatic message to OSC to determine whether any
prohibited personnel practice cases have been filed by the claimant.

^23All information related to OSC demonstration project claims is to be
stored in a separate database throughout the entire life cycle of all
demonstration project claims.

^24OSC is awaiting the outcome of the demonstration project before
implementing electronic filing of USERRA claims.

In addition, according to OSC, although VBIA did not require that OSC
modify its existing system, OSC enhanced its case tracking system to
maintain demonstration project data that would be useful in tracking
USERRA claims. For example, on October 1, 2006, OSC began tracking a
claimant's status as veteran, disabled veteran, reservist, guardsman, or
other and the claimant's allegation, such as veteran discrimination,
disabled veteran discrimination, reservist reemployment, and reprisal.
According to OSC, maintaining this information will enable OSC to prepare
reports showing the number and the types of allegations filed by various
claimant groups.

Conclusion

At a time when the nation's attention is focused on those who serve our
country, it is important that policymakers have reliable information about
the extent to which employment and reemployment rights are protected for
applicants to and employees of the federal government who leave their
employment to perform military or other uniformed service. While we did
not assess the quality of the claims investigations or the correctness of
outcomes, we believe that DOL's controls and oversight of the claims
process need to be improved. DOL does not consistently notify
servicemembers of their right to have their claims referred to OSC or to
file directly with MSPB if DOL is not successful in resolving their
claims, which may have prevented some servicemembers from seeking further
review of their claims. Moreover, VETS's database does not contain
sufficiently reliable data for purposes of our review on the number of
cases, outcomes, and the time to investigate claims. Additionally, DOL has
a lengthy two-phase review process that has servicemembers waiting months
before the referral of their claims takes place.

We note that VETS uses the same process, including the same procedures,
practices, investigators, and database, for federal and nonfederal USERRA
claims. The same kinds of problems that we found in our review of federal
USERRA claims may be occurring for nonfederal claims.

Citing our preliminary findings, in December 2006, VETS officials took
action to rectify some of the identified shortcomings. While we view these
actions as positive and a step in the right direction toward clarifying
steps that VETS investigators are to take, VETS still lacks uniform
policies and quality controls to help ensure that servicemember employment
rights are protected and that Congress receives accurate information.

Recommendations for Executive Action

We recommend that the Secretary of Labor direct the Assistant Secretary
for Veterans' Employment and Training to implement the following four
actions:

           o Incorporate into the formal update to VETS's USERRA Operations
           Manual the guidance from a VETS regional office December 2006
           memorandum on the procedures that investigators should follow
           concerning the notification of a claimant's right to referral and
           the appropriate closed date in VETS's database.

           o Require all VETS investigators to undergo mandatory training on
           the procedures to be followed concerning notification of a
           claimant's right to referral to help ensure that servicemembers
           know their rights under USERRA.

           o Develop and implement an internal review mechanism for all
           unresolved claims before claimants are notified of determinations
           and claims are closed to help ensure adherence to all procedures
           and standards.

           o Establish a plan of intended actions with target dates for
           implementing internal controls to ensure that VETS's database
           accurately reflects: the number of unique USERRA claims filed
           annually against federal executive branch agencies, the dates
           those claims were closed, and the outcomes of those claims, to
           ensure that accurate information on USERRA claims' processing is
           available to DOL and to Congress.

Agency Comments and Our Evaluation

We provided a draft of this report to the Secretary of Labor and the
Special Counsel for their review and comment. In written comments, which
are included in appendix II, the Assistant Secretary for Veterans'
Employment and Training agreed with our recommendations and discussed
actions that DOL is taking to address the recommendations.

In written comments, which are included in appendix III, the Special
Counsel disagreed with our statement that OSC's corrective action data
element, which OSC uses to describe the results or outcomes of USERRA
claims, was not reliable. He also notes that the report does not address
the differences between the results and time taken to get results by OSC
versus DOL. As stated in our report, during our review, OSC and DOL
provided us with data on USERRA claims processed, but because the data
element for outcomes was not sufficiently reliable in either agency's
database, we do not report on outcomes. Also in his written comments, the
Special Counsel references a December 2006 letter to us in which he
expressed disagreement with a methodology used in calculating the time an
investigative file is with DOL's Office of the Solicitor. The December
letter refers not to the methodology in this report but rather to a
preliminary methodology used in another GAO engagement.^25 Our methodology
for this engagement, which includes a discussion of the time an
investigative file is with DOL's Office of the Solicitor, is discussed in
this letter and in more detail in appendix I.

In addition, both the Assistant Secretary for Veterans' Employment and
Training and the Special Counsel provided their views on the demonstration
project and their respective agency's role in processing USERRA claims.

We will send copies of this report to the Secretary of Labor, the Special
Counsel, and other interested parties. Copies will be made available to
others upon request. This report will also be available at no charge on
GAO's Web site at [50]http://www.gao.gov .

If you have questions about this report, please contact me on (202)
512-9490 or at [51][email protected] . Contact points for our Offices of
Congressional Relations and Public Affairs may be found on the last page
of this report. Staff who made major contributions are listed in appendix
IV.

George H. Stalcup
Director, Strategic Issues

^25See [52]GAO-07-259 . However, the methodology referenced by the Special
Counsel was revised and not used in the issued report.

List of Congressional Committees

The Honorable Daniel K. Akaka
Chairman
The Honorable Larry E. Craig
Ranking Member
Committee on Veterans' Affairs
U.S. Senate

The Honorable Joseph I. Lieberman
Chairman
The Honorable Susan M. Collins
Ranking Member
Committee on Homeland Security and Governmental Affairs
U.S. Senate

The Honorable Daniel K. Akaka
Chairman
The Honorable George V. Voinovich
Ranking Member
Subcommittee on Oversight of Government Management, the
  Federal Workforce, and the District of Columbia
Committee on Homeland Security and Governmental
Affairs U.S. Senate

The Honorable Bob Filner
Chairman
The Honorable Steve Buyer
Ranking Member
Committee on Veterans' Affairs
House of Representatives

The Honorable Henry A. Waxman
Chairman
The Honorable Tom Davis
Ranking Member
Committee on Oversight and Government Reform
House of Representatives

The Honorable Stephanie Herseth Sandlin
Chairman
The Honorable John Boozman
Ranking Member
Subcommittee on Economic Opportunity
Committee on Veterans' Affairs
House of Representatives

The Honorable Danny K. Davis
Chairman
The Honorable Kenny Marchant
Ranking Member
Subcommittee on Federal Workforce, Postal Service, and the District
  of Columbia
Committee on Oversight and Government Reform
House of Representatives

Appendix I: Objectives, Scope, and Methodology

Our objectives were to (1) describe the Department of Labor's (DOL) and
Office of Special Counsel's (OSC) policies and procedures for processing
federal employees' Uniformed Services Employment and Reemployment Rights
Act of 1994 (USERRA) claims under the demonstration project; (2) identify
the number of federal employees' USERRA claims that DOL and OSC received
and the outcomes of these claims, including average processing times; and
(3) identify changes to federal employees' USERRA claims' processing since
the demonstration project began.

Objective 1: Describe DOL's and OSC's Policies and Procedures for Processing
Federal Employees' USERRA Claims under the Demonstration Project

To describe DOL's and OSC's policies and procedures for processing federal
employees' USERRA claims under the demonstration project, we reviewed
applicable laws, including USERRA and the Veterans Benefit Improvement Act
of 2004, and regulations; agency policies, memorandums of understanding,
and correspondence between DOL and OSC; DOL and OSC USERRA claims'
processing manuals; other internal guidance and program information; and
DOL's annual USERRA reports to Congress. We also interviewed knowledgeable
DOL and OSC officials. At DOL, we interviewed officials from its Veterans'
Employment and Training Service (VETS) National Office, VETS's Atlanta
Regional Office, and DOL's Office of the Solicitor. At OSC, we interviewed
the USERRA Unit Chief.

Objective 2: Identify the Number of Federal Employees' USERRA Claims that DOL
and OSC Received and the Outcomes of These Claims, Including Average Processing
Times

To identify the number of federal employees' USERRA claims that DOL and
OSC received and the outcomes of these claims, including average
processing times, we obtained information on all the USERRA claims filed
against federal executive branch agencies that DOL and OSC received from
February 8, 2005--the beginning of the demonstration project--through
September 30, 2006. We excluded claims from our analysis identified by DOL
and OSC as being brought by Transportation Security Administration
security screeners and supervisory security screeners because they are not
covered by USERRA,^1 specifically 7 claims at DOL and 10 claims at OSC.

Data Reliability

  DOL

We also assessed the reliability of data on federal employee claims from
VETS's database, the USERRA Information Management System, and OSC's case
tracking system, OSC 2000, by tracing a statistically random sample of
data to case files. Concerning the reliability of VETS's data, for
selected data elements including open date, closed date, closed code,
agency name, regional office action date, and Office of the Solicitor
action date, we compared the electronic data in VETS's database to the
source case files for 54 randomly selected cases received between February
8, 2005, and July 21, 2006. We assessed reliability by the amount of
agreement between the data in VETS's database and the source case files.
In addition, for each selected data element, we excluded claims if
information was missing from the case file, thus preventing a comparison
between data in VETS's database and the case file. We did not evaluate the
accuracy of the source case files for the data elements reviewed. For data
elements pertaining to time (i.e., open date and closed date), we
considered the date a match if the date in VETS's database was the same or
within 1 day of the date reflected in the case file.

^1Transportation Security Administration security screeners and
supervisory security screeners are not covered by USERRA. See, Spain v.
Department of Homeland Security, 99 M.S.P.R. 529 (2005), citing to Conyers
v. M.S.P.B, 388 F.3d. 1380 (Fed. Cir. 2004). The Transportation Security
Administration, however, voluntarily permits DOL and OSC to investigate
USERRA claims.

We determined that data contained in the closed date and closed code
fields were not reliable for purposes of this study. Specifically, we
found that the closed dates in VETS's database did not match a closed date
indicated in the case files in 22 of 52 claims.^2 We considered the closed
date a match if the date in VETS's database was the same as either the
date of the closure letter, the date indicated in the closure letter by
which a claimant had to respond to a request for information, or the date
stated in the closure letter indicating when the investigation was closed.
Thus, we are 95 percent confident that between 31 and 53 percent of the
closed dates in VETS's database would not match between the VETS's
database and the source case files. Regarding the closed code, which VETS
uses to describe the outcomes of USERRA claims (i.e., claim granted, claim
settled, no merit, withdrawn) we are 95 percent confident that as many as
16 percent of the outcomes would not match between the VETS's database and
the source case files. While our analysis of VETS's database showed that
about one-fifth of claimants received partial or full relief, we found
that this data element was not sufficiently reliable for reporting
specific outcomes of claims. We determined that the other data
elements--open date, agency name, regional office action date, and Office
of the Solicitor action date--necessary to answer our objectives were
sufficiently reliable for purposes of this review.

  OSC

Concerning the reliability of OSC's data, in an earlier report we assessed
the reliability of selected data elements in OSC's case tracking system
for USERRA claims by comparing them to the source case files.^3 We
reviewed the selected data elements for a statistically random sample of
USERRA claims and determined the corrective action code, which OSC uses to
describe the outcomes of USERRA claims, was not sufficiently reliable.
Specifically, we are 95 percent confident that as many as 24 percent of
the outcomes would not match between the case tracking system and the
source case files. While our analysis of OSC's data showed that about a
quarter of claimants received full relief, this data element is not
sufficiently reliable for reporting outcomes of claims. We determined that
the other data elements--date received, date closed, agency name, case
type, case subtype, and action office--were sufficiently reliable for
purposes of this review.

^2As we said earlier, we excluded claims from the original sample size of
54 when information was missing from the case file, which accounts for any
difference from 54.

^3GAO, Office of Special Counsel Did Not Follow Structured Life Cycle
Management Practices for Its Case Tracking System, [53]GAO-07-318R
(Washington, D.C.: Feb. 16, 2007).

Determining the Number of Claims Received

  DOL

We reviewed data from VETS's database from February 8, 2005, though
September 30, 2006, to determine the number of claims processed by DOL
during the demonstration project. In doing so, we found that VETS's
database records as separate claims (1) duplicate filings by the same
claimant, (2) reopened claims for the same claimant, and (3) claims
transferred to OSC. To determine the number of unique claims opened by
VETS, we

           o removed claims opened prior to the demonstration project;

           o removed claims transferred to OSC after being opened in VETS's
           database (i.e., those with odd social security numbers and
           allegations of related prohibited personnel practices);

           o removed duplicate filings (i.e., those opened within 3 days of
           another claim brought by the same claimant and subsequently
           closed, while the original claim remained open);

           o removed one veterans' preference claim identified by VETS as
           being inadvertently opened as a USERRA claim; and

           o combined and counted as one claim original and reopened claims
           where both were opened during the demonstration project.

Because the number of claims shown in VETS's database exceeded the number
of unique claims VETS investigated, we concluded that the data in VETS's
database were not sufficiently reliable for determining the number of
claims. As a result of the steps we took to identify the number of unique
claims DOL received, the number of claims received went from 202 shown in
VETS's database from February 8, 2005, through September 30, 2006, to
166--the number we used for purposes of this review.

Because of our concerns over the reliability of the number of claims in
VETS's database for the demonstration project, we also analyzed the number
of claims in VETS's database for fiscal year 2005 and compared it to the
number of claims filed against federal executive branch agencies that DOL
reported in its fiscal year 2005 USERRA Annual Report to Congress. To
determine the number of unique claims processed by VETS in fiscal year
2005 that were filed against federal executive branch agencies, we used a
methodology similar to the one used to determine the number of unique
claims during the demonstration project.^4 We again found that DOL had not
removed duplicate, reopened, transferred, and erroneously opened federal
USERRA claims. Specifically, DOL reported that it opened 146 claims
involving federal employers for fiscal year 2005, reflecting the number of
claims involving federal employers in VETS's database for fiscal year
2005. Our analysis, however, showed that of the reported 146 claims, 117
unique claims were investigated by VETS in fiscal year 2005.

  OSC

To determine the number of claims processed by OSC during the
demonstration project, we analyzed data from OSC's case tracking system
for claims alleging only violations of USERRA and claims alleging both
violations of USERRA and related prohibited personnel practices.

Determining Average Processing Time for DOL

Because the closed dates entered in VETS's database were not sufficiently
reliable, we could not use the average of the time VETS spent on
investigations reflected in its database to accurately determine DOL's
average processing time. Instead, to determine average processing time, we
used the correct closed dates from the case files in our random sample and
(1) estimated average processing time for VETS investigations from the
start of the demonstration project through July 21, 2006--the period of
our sample--and (2) calculated the actual total DOL average processing
time for those claims referred to OSC.^5

  VETS Investigations

To determine VETS's average processing time, we used the data from the
sample of cases because the closed dates for all claims in VETS's database
were not sufficiently reliable for our purposes. Where the closed date in
VETS's database did not match the date in the closure letter, we used the
correct dates obtained from our review of the hard copy case files and
generated estimates from the sample of cases, which were opened and closed
from February 8, 2005, through July 21, 2006--the period of our sample.
Based on the random sample, we are 95 percent confident that VETS's
average processing time for conducting investigations was between 53 and
86 days. Because our sample contained only one case that received the two
additional reviews at DOL after the VETS investigation was closed, (i.e.,
by a VETS's regional office and the Office of the Solicitor) before being
referred to OSC, we could not reliably use this same process to estimate
the average processing time for all of DOL's USERRA claims' processing.

^4Transportation Security Administration screeners and supervisory
screeners were not excluded from this analysis because they could not be
identified in VETS's database.

^5Although we found the open date field to be sufficiently reliable for
our purposes, as we were using the correct closed dates from the case
files for our calculations, we used the correct open dates from case files
to be as accurate as possible.

  DOL's Referrals to OSC

We separately reviewed those claims that VETS investigated but could not
resolve and for which claimants requested referral of their claims to OSC.
From February 8, 2005, through September 30, 2006, for 16 claims in the
VETS's database, claimants asked VETS for referral to OSC. Of those 16
claims, 5 were reopened (i.e., claims brought by the same claimant), which
we combined with their original claims, and 5 were still being reviewed at
DOL. The other 6 claims had not been reopened. Thus, 11 unique claims were
to be referred to OSC. Of the 11 unique claims, 6 had been reviewed by
both a VETS regional office and the Office of the Solicitor as of
September 30, 2006 (3 of the reopened claims and 3 of the others). To
calculate the average processing time for DOL to process claims that were
referred through DOL to OSC using actual dates, we used the average
processing time of these 6 claims. We based this average on the number of
days that it took DOL to process a claim from the date that VETS opened
the investigation through the date that the Office of the Solicitor
completed its review and made a recommendation to OSC. Because we found
the closed dates of VETS investigations entered in VETS's database were
not sufficiently reliable for our purposes, we could not determine how
long it took the VETS regional office and the Office of the Solicitor to
process referrals following VETS investigations.

For each of the three claims that were reopened, there were two open
dates. Because we determined that the closed dates in VETS's database were
unreliable, we could not accurately account for the time these claims had
been closed before they were reopened. To compensate for this, we
calculated the processing time for these three reopened claims in two
ways: (1) using the open date of the first claim and (2) using the open
date of the reopened, or second claim, in VETS's database. We then
calculated two averages using each of the processing time calculations for
the three claims. For the remaining three claims that were referred but
not closed and reopened, there was only one open date to use in
calculating processing time, which was used in both calculations of
average processing time for the six referrals. The difference in the
average processing time between these two calculations was about 31 days.
For purposes of this report, we use the approximate midpoint obtained from
each of the calculations--about 247 days or 8 months.

Determining Average Processing Time for OSC

To determine the average processing time for all OSC claims, USERRA only,
and mixed claims, using the data in OSC's database, we calculated the
number of days from and including the date that the claim was opened
through the date that the claim was closed.

Notification of Rights

During our review of a sample of VETS's case files, for claims that were
not successfully resolved, we reviewed the extent to which VETS notified
claimants in closure letters of their right to have their claims referred
to OSC or to bring them directly to MSPB using a private attorney. We
defined "not successfully resolved" as those claims that did not have a
closed code in VETS's database of "claim granted" or "claim settled." As a
result, we excluded from our analysis of the 54 claims in the sample those
claims with a closed code in VETS's database of claim granted or claim
settled. We also excluded those claims that we were able to identify (1)
as subject to the Defense Finance and Accounting Service administrative
procedure to resolve their Butterbaugh claims,^6 (2) a veterans'
preference claim that was inadvertently opened as a USERRA claim, (3) a
file of a duplicate claim, or (4) those withdrawn by the claimant. In
total, we included 28 closure letters from our random sample of 54 claims
in our review.

Objective 3: Identify Changes to Federal Employees' USERRA Claims' Processing
since the Demonstration Project Began

To identify changes to federal employees' USERRA claims' processing since
the demonstration project began, we reviewed applicable law, regulations,
and legislative histories. We also reviewed relevant documentation about
claims' processing prior to the demonstration project and compared that to
relevant documentation from DOL and OSC regarding claims' processing
during the demonstration project. We also interviewed knowledgeable DOL
and OSC officials and representatives from veterans' service
organizations, including The American Legion, Military Officers
Association of America, National Guard Association of the United States,
Paralyzed Veterans of America, Reserve Enlisted Association, Reserve
Officers Association, Veterans of Foreign Wars of the United States, and
Vietnam Veterans of America.

^6Butterbaugh v. Department of Justice, 336 F.3d. 1332 (Fed. Cir. 2003)
holds that federal agencies had improperly charged reserve component
members military leave for nonworkdays.

We conducted our work from May 2006 to May 2007 in accordance with
generally accepted government auditing standards.

Appendix II: Comments from the Department of Labor

Appendix III: Comments from the Office of Special Counsel

Appendix IV: GAO Contact and Staff Acknowledgments

GAO Contact

George H. Stalcup on (202) 512-9490 or at [54][email protected]

Acknowledgments

In addition to the individual named above, Belva Martin, Assistant
Director; James Ashley; Karin Fangman; Tamara F. Stenzel; Kiki
Theodoropoulos; Jason Vassilicos; Michael R. Volpe; and Gregory H. Wilmoth
made key contributions to this report.

(450592)

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Highlights of [62]GAO-07-907 , a report to congressional committees

July 2007

MILITARY PERSONNEL

Improved Quality Controls Needed over Servicemembers' Employment Rights
Claims at DOL

The Uniformed Services Employment and Reemployment Rights Act of 1994
(USERRA) protects the employment and reemployment rights of federal and
nonfederal employees who leave their employment to perform military
service. The Department of Labor (DOL) investigates and attempts to
resolve claims filed by servicemembers, and if not successful, DOL is to
inform the federal claimants that they may request to have their claims
referred to the Office of Special Counsel (OSC). Under a demonstration
project, from February 8, 2005, through September 30, 2007, OSC is
authorized to receive and investigate certain USERRA claims, with DOL
continuing its investigative role for others. As required by Pub. L. No.
108-454, this report describes the (1) processes, (2) outcomes, and (3)
major changes during the demonstration project. GAO selected a random
sample of cases from DOL's and OSC's databases and traced data for
selected elements from the electronic files to source case files.

[63]What GAO Recommends

GAO recommends that the Secretary of Labor develop an internal review
mechanism for all unresolved claims before they are closed and claimants
are notified and establish internal controls to ensure the accuracy of
data entered into DOL's database. DOL agreed with our recommendations.

Since the start of the demonstration project on February 8, 2005, both DOL
and OSC have had policies and procedures for receiving, investigating, and
resolving USERRA claims against federal executive branch employers, with
DOL investigating the ones from claimants with even-number social security
numbers, and OSC those from claimants with odd social security numbers as
well as those with related allegations of prohibited personnel practices.
Under the demonstration project, DOL's process for investigating USERRA
claims remains unchanged: DOL uses a nationwide network of over a hundred
investigators from offices in every state. Under the demonstration
project, OSC has instituted a centralized approach for investigating
USERRA claims, with a single office of about half a dozen investigators
and attorneys in its Washington, D.C., headquarters.

Data for reporting outcomes were not reliable at either agency. At DOL,
inaccurate data were included in the agency's annual report to Congress,
which could adversely affect Congress's ability to assess how well federal
USERRA claims are processed and whether changes are needed in the future.
GAO also found that DOL did not consistently notify claimants concerning
the right to have their claims referred to OSC for further investigation
or to bring their claims directly to the Merit Systems Protection Board.
Citing GAO's preliminary findings, in December 2006, DOL officials
required each region to revise its guidance regarding notifying claimants
in the closure letter of their rights. GAO found that for the period of
its review--February 8, 2005, through September 30, 2006--DOL received a
total of 166 unique claims, although 202 claims were recorded as opened in
DOL's database. Duplicate, reopened, and transferred claims accounted for
most of this difference. During a review of a random sample of DOL's case
files to assess the reliability of DOL's data, GAO found the closed dates
in DOL's database, which it uses to report to Congress on the number and
percentage of claims it closes within 90, 120, and 365 days, were not
reliable. From the start of the demonstration project, through September
30, 2006, OSC received 269 claims and took an average of 115 days to
process these claims. The closed dates in OSC's case tracking system were
sufficiently reliable.

Three primary changes have occurred in federal employees' USERRA claims'
processing since the demonstration project. First, two agencies now
investigate claims from federal employees using two different models for
investigations. Second, both DOL and OSC officials said cooperation and
communication between the two agencies on claims has increased under the
demonstration project, in turn raising awareness of issues related to
servicemembers who are federal employees. Finally, technological
enhancements have occurred, including an enhancement to DOL's database
enabling the electronic transfer of information between agencies, which
began in October 2006.

References

Visible links
  45. http://www.gao.gov/cgi-bin/getrpt?GAO-06-60
  46. http://www.gao.gov/cgi-bin/getrpt?GAO-07-259
  47. https://vets1010.dol.gov/
  48. http://www.gao.gov/cgi-bin/getrpt?GAO-07-318R
  49. http://www.gao.gov/cgi-bin/getrpt?GAO-06-60
  50. http://www.gao.gov/
  51. mailto:[email protected]
  52. http://www.gao.gov/cgi-bin/getrpt?GAO-07-259
  53. http://www.gao.gov/cgi-bin/getrpt?GAO-07-318R
  54. mailto:[email protected]
  55. http://www.gao.gov/
  56. http://www.gao.gov/
  57. http://www.gao.gov/fraudnet/fraudnet.htm
  58. mailto:[email protected]
  59. mailto:[email protected]
  60. mailto:[email protected]
  61. http://www.gao.gov/cgi-bin/getrpt?GAO-GAO-07-907
  62. http://www.gao.gov/cgi-bin/getrpt?GAO-07-907
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