Military Personnel: Federal Agencies Have Taken Actions to
Address Servicemembers' Employment Rights, but a Single Entity
Needs to Maintain Visibility to Improve Focus on Overall Program
Results (08-NOV-07, GAO-08-254T).
Since September 11, 2001, the Department of Defense (DOD) has
mobilized more than 500,000 National Guard and Reserve members.
As reservists return to civilian life, concerns exist about
difficulties with their civilian employment. The Uniformed
Services Employment and Reemployment Rights Act (USERRA) of 1994
protects the employment rights of individuals, largely National
Guard and Reserve members, as they transition back to their
civilian employment. GAO has issued a number of reports on agency
efforts to carry out their USERRA responsibilities. DOD, the
Department of Labor (DOL), the Department of Justice (DOJ), and
the Office of Special Counsel (OSC) have key responsibilities
under the act. GAO was asked to discuss the overall process that
the agencies use to implement USERRA. Specifically, this
testimony addresses (1) organizational accountability in the
implementation of USERRA and (2) actions that the agencies have
taken to improve their processes to implement USERRA. For this
testimony, GAO drew from its most recent reports on USERRA.
-------------------------Indexing Terms-------------------------
REPORTNUM: GAO-08-254T
ACCNO: A78050
TITLE: Military Personnel: Federal Agencies Have Taken Actions
to Address Servicemembers' Employment Rights, but a Single Entity
Needs to Maintain Visibility to Improve Focus on Overall Program
Results
DATE: 11/08/2007
SUBJECT: Accountability
Armed forces reserves
Civilian employees
Claims processing
Employment
Investigations by federal agencies
Military personnel
Military reserve personnel
Program evaluation
Veterans benefits
Veterans employment programs
Program implementation
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GAO-08-254T
* [1]Summary
* [2]Background
* [3]No Single Agency Is Accountable for Maintaining Visibility o
* [4]Agencies Have Taken Action to Improve Information on Employe
* [5]Outreach
* [6]Data Sharing and Trend Identification
* [7]Information Reported to Congress
* [8]Notification of Rights to Referral and Internal Reviews
* [9]GAO's Mission
* [10]Obtaining Copies of GAO Reports and Testimony
* [11]Order by Mail or Phone
* [12]To Report Fraud, Waste, and Abuse in Federal Programs
* [13]Congressional Relations
* [14]Public Affairs
Testimony
Before the Committee on Health, Education, Labor and Pensions, U.S. Senate
United States Government Accountability Office
GAO
For Release on Delivery
Expected at 10:00 a.m. EST
November 8, 2007
MILITARY PERSONNEL
Federal Agencies Have Taken Actions to Address Servicemembers' Employment
Rights, but a Single Entity Needs to Maintain Visibility to Improve Focus
on Overall Program Results
Statement of Brenda S. Farrell, Director
Defense Capabilities and Management
and
Statement of George H. Stalcup, Director
Strategic Issues
GAO-08-254T
Mr. Chairman, Senator Enzi, and Members of the Committee:
We are pleased to be here today to discuss four federal agencies'
activities regarding the Uniformed Services Employment and Reemployment
Rights Act (USERRA) of 1994.^1 USERRA protects the employment and
reemployment rights of millions of federal and nonfederal employees who
leave their civilian employment to perform military or other uniformed
service. USERRA also prohibits discrimination in employment against
individuals because of their uniformed service, obligation to perform
service, or membership or application for membership in the uniformed
services. USERRA further prohibits employer retaliation against any
individual who engages in protected activity under USERRA, regardless of
whether the individual has performed service in the uniformed services.
Mr. Chairman, in 2004 you recognized the issues associated with USERRA,
particularly in light of the significant number of National Guard and
Reserve members serving in Iraq and Afghanistan who would be demobilized,
returned to their civilian jobs, and possibly called back to duty.^2 Our
testimony today is particularly relevant because more than 500,000
reservists have been called to duty since September 11, 2001.
Our testimony is based on work that we have conducted for you and in
response to congressional mandates. Since 2002, we have issued several
reports on federal agency efforts to carry out USERRA responsibilities.
The four agencies primarily responsible for assisting servicemembers under
USERRA are the Department of Defense (DOD), the Department of Labor (DOL),
the Department of Justice (DOJ), and the Office of Special Counsel
(OSC).^3 In our reports, we have made numerous recommendations to these
agencies concerning the implementation of USERRA.^4
^1Pub. L. No. 103-353 (1994), as amended, codified at 38 U.S.C. SS
4301-4334.
^2The term reservists refers to the collective forces of the Army National
Guard, Air National Guard, Army Reserve, Air Force Reserve, Navy Reserve,
Marine Corps Reserve, and the Coast Guard Reserve.
^3The law also gives outreach responsibilities to the Secretary of
Veterans Affairs, but we did not review actions of the Department of
Veterans Affairs in supporting USERRA because its role is more limited.
Our testimony is based on our three most recent reports on USERRA and
examining whether DOD, DOL, DOJ, and OSC have effectively carried out
their USERRA responsibilities.^5 Our testimony addresses (1)
organizational accountability in the implementation of USERRA and (2)
actions that the agencies have taken to improve their internal processes
to implement USERRA.
As noted, this testimony is based on our prior work. For that work, we
reviewed applicable laws, guidance, regulations, and operations manuals.
To assess how efficiently and effectively DOD, DOL, DOJ, and OSC address
USERRA complaints, we collected, reviewed, and analyzed data from a wide
variety of sources (including the four federal agencies) and interviewed
responsible officials.^6 We also reviewed DOD survey data and conducted
original analysis on these data. To identify progress made by DOD in
capturing employer information, we obtained and analyzed reporting
compliance data from DOD and its reserve components. Further, we analyzed
the number of disability complaints filed with DOD and DOL between fiscal
years 2004 and 2006. We found DOD's civilian employment information and
Employer Support of the Guard and Reserve (ESGR) databases to be of
undeterminable reliability.
^4GAO, Military Personnel: Improved Quality Controls Needed over
Servicemembers' Employment Rights Claims at DOL, [15]GAO-07-907
(Washington, D.C.: July 20, 2007); GAO, Military Personnel: Additional
Actions Needed to Improve Oversight of Reserve Employment Issues,
[16]GAO-07-259 (Washington, D.C.: Feb. 8, 2007); GAO, Military Personnel:
Federal Management of Servicemember Employment Rights Can Be Further
Improved, [17]GAO-06-60 (Washington, D.C.: Oct. 19, 2005); GAO, U.S.
Office of Special Counsel's Role in Enforcing Law to Protect Reemployment
Rights of Veterans and Reservists in Federal Employment, [18]GAO-05-74R
(Washington, D.C.: Oct. 6, 2004); GAO, Reserve Force: DOD Actions Needed
to Better Manage Relations between Reservists and Their Employers,
[19]GAO-02-608 (Washington, D.C.: June 13, 2002).
^5We recently testified on issues related to our July 2007 report. GAO,
Military Personnel: Considerations Related to Extending Demonstration
Project on Servicemembers' Employment Rights Claims, [20]GAO-08-229T
(Washington, D.C.: Oct. 31, 2007).
^6Federal agencies use a variety of terms to describe servicemember
allegation of USERRA violations, including "complaints," "claims,"
"cases," "matters," and "referrals." For clarity and consistency
throughout this testimony, we use the term complaint to describe these
servicemember allegations. We refer to complaints to DOD as "informal
complaints" and complaints to DOL, DOJ, and OSC as "formal complaints."
In our October 2005 report, we compared data obtained from DOJ and OSC
with those captured by DOL and, where available, we compared the
information in DOL's USERRA Information Management System to information
from hard copy complaint files for accuracy.^7 For our July 2007 report,
we assessed the reliability of selected data elements on federal employee
complaints from DOL's USERRA database by tracing a statistically random
sample of data to case files from February 8, 2005, through July 21,
2006.^8 We determined that these data were sufficiently reliable, with the
exception of certain data elements from DOL's USERRA database, which we
note in this testimony. With respect to actions agencies have taken in
response to our recommendations, we discussed the agencies' progress with
knowledgeable officials from DOL, ESGR, and OSC. Our work on the above
reports, as well as the work we conducted for this statement, was
performed in accordance with generally accepted government auditing
standards.
Summary
Mr. Chairman, our main message today is that the four federal agencies
have taken steps to better support and protect servicemembers' rights
under USERRA in response to problems identified and recommendations made
in our prior reports. However, no single agency is accountable for
maintaining visibility over the entire complaint resolution process and
therefore, it is difficult for the responsible agencies to effectively
carry out their USERRA responsibilities. Designating one single entity
would, in GAO's view, enhance efforts to improve overall program results.
Background
The overall process used to implement USERRA is as follows.
o Outreach and resolution of informal complaints. DOD and DOL
share responsibility for outreach--the education of servicemembers
and employers about their respective responsibilities under
USERRA. Much of DOD's outreach is accomplished through ESGR, which
performs most of its work through over 4,000 volunteers. DOL
conducts outreach through its Veterans' Employment and Training
Service (VETS) investigators, who are located nationwide. These
investigators conduct briefings to educate employers and
servicemembers about USERRA requirements and responsibilities and
handle service-related employment and reemployment questions that
are directed to their offices.
^7DOL's USERRA Information Management System is a Web-based case
management and reporting tool implemented by DOL in October 1996 that
allows for automated collection and investigator input of information
regarding USERRA complaints and generation of reports for analysis of
USERRA operations and outcomes. For purposes of this testimony, we refer
to DOL's USERRA Information Management System as DOL's USERRA database.
^8For our July 2007 report, we also assessed the reliability of selected
data elements on federal employee complaints from OSC's case tracking
system for the same period. The data element that OSC uses to describe the
outcomes of complaints was not sufficiently reliable for reporting
specific outcomes.
Servicemembers who have USERRA-related issues with their employers
can file informal complaints with DOD's ESGR. In our February 2007
report, we noted that nearly 10,000 informal complaints had been
filed with ESGR in fiscal years 2004 and 2005. A subgroup of
ESGR's specially trained volunteers serve as impartial ombudsmen
who informally mediate USERRA issues that arise between
servicemembers and their employers.
o Formal complaints and prosecution. When ESGR ombudsmen cannot
resolve complaints informally, they notify servicemembers about
their options. Servicemembers can file a formal complaint with DOL
or file complaints directly in court (if it involves nonfederal
employers) or the Merit Systems Protection Board (if it involves
federal executive branch employers). Under a federal sector
demonstration project established by the Veterans Benefits
Improvement Act of 2004,^9 DOL investigates complaints against
federal executive branch agencies for individuals whose social
security numbers end in even numbers, and OSC is authorized to
directly receive and investigate complaints and seek corrective
action for individuals whose social security numbers end in odd
numbers.
When a servicemember files a formal complaint with DOL, one of
VETS's 115 investigators examines and attempts to resolve it.^10
If VETS's investigators are unable to resolve servicemember
complaints, DOL is to inform servicemembers that they may request
to have their complaints referred to DOJ (for complaints against
private sector employers or state and local governments) or to OSC
(for complaints against federal executive branch agencies).^11
Before complaints are sent to DOJ or OSC, they are reviewed by a
VETS regional office for accuracy and sufficiency and by a DOL
regional Office of the Solicitor, which assesses the legal basis
for complaints and makes an independent recommendation.
^9The demonstration project began on February 8, 2005 and was originally
scheduled to end on September 30, 2007. Pub. L. No. 108-454, S204 (2004),
38 U.S.C. S 4301 note. It was extended through November 16, 2007. Pub. L.
No. 110-92, S130 (2007).
^10Another 74 investigators include regional administrators and management
authorized to investigate USERRA complaints but not assigned to any.
^11DOL is also to inform servicemembers that they may file their complaint
directly in court (if it involves nonfederal employers) or with the Merit
Systems Protection Board (if it involves federal executive branch
employers).
If DOJ or OSC determines that the complaint has merit, it will
attempt to resolve the complaint without litigation and, if
unsuccessful, represent the complainant in court (for those
referred to DOJ) or before the Merit Systems Protection Board (for
those referred to OSC).
Figure 1 shows servicemembers' options for obtaining federal
assistance with their USERRA complaints.
Figure 1: Process to Resolve a USERRA Complaint Using Federal
Assistance
Note: The demonstration project originally scheduled to end on
September 30, 2007, was extended through November 16, 2007. Pub.
L. No. 110-92, S130 (2007).
o Agency databases and reporting requirement. Each of the four
federal agencies responsible for assisting servicemembers under
USERRA maintains an automated database with complaint information.
Both DOD and DOL have electronic complaint files that are stored
in automated systems with query capabilities.
The Secretary of Labor in consultation with the U.S. Attorney
General and the Special Counsel prepares and transmits a USERRA
annual report to Congress on, among other matters, the number of
USERRA claims reviewed by DOL, and during the current
demonstration project by OSC, along with the number of claims
referred to DOJ or OSC. The annual report is also to address the
nature and status of each claim, state whether there are any
apparent patterns of violation of the USERRA provisions, and
include any recommendations for administrative or legislative
action that the Secretary of Labor, the U.S. Attorney General, or
the Special Counsel consider necessary to effectively implement
USERRA.
No Single Agency Is Accountable for Maintaining Visibility over
the Entire Complaint Resolution Process
Although USERRA defines individual agency roles and
responsibilities, it does not make any single individual or office
accountable for maintaining visibility over the entire complaint
resolution process. In our October 2005 report, we noted that the
ability of federal agencies to monitor the efficiency and
effectiveness of the complaint process was hampered by a lack of
visibility resulting, in part, from the segmentation of
responsibility for addressing complaints among multiple agencies.
Moreover, from the time informal complaints are filed with DOD's
ESGR through final resolution of formal complaints at DOL, DOJ, or
OSC, no one entity has visibility over the entire process. We
found that the agency officials who are responsible for the
complaints at various stages of the process generally have limited
or no visibility over the other parts of the process. As a result,
federal agencies have developed agency-specific output rather than
cross-cutting goals directed toward resolving servicemembers'
complaints. For example, agency goals address the complaint
processing times of each stage of the process, rather than the
entire time that elapses while servicemembers wait to have their
complaints addressed. Meanwhile, the servicemember knows how much
time is passing since the initial complaint was filed. In October
2005, we reported that more than 430 of the 10,061 formal
complaints filed with DOL between October 1, 1996, and June 30,
2005, were closed and reopened and 52 complaints had been closed
and reopened two or more times. Our analysis of those 52
complaints showed that the processing times averaged about 3 to 4
months but the total elapsed times that servicemembers waited to
have their complaints fully addressed averaged about 20 to 21
months from the time they first filed their initial formal
complaints with DOL until the time the complaints were fully
addressed by DOL, DOJ, or OSC.^12
^12Because dates in DOL's USERRA database did not always match the dates
in the other agencies' systems and of the concerns raised in our July 2007
report about the investigation closed dates entered for federal sector
complaints, discussed later in this statement, the processing and total
elapsed times may not be accurate and the figures presented here are not
precise reflections of processing or total elapsed times. For our 2005
report, we reviewed hard copy complaint files at the regional offices,
tracked cases if they were referred to DOJ or OSC, and spoke with relevant
investigators about these cases. We determined these data were
sufficiently reliable for illustrating the differences between the
agencies' focuses on outputs and the servicemembers' concern with the
results.
We have previously suggested and continue to believe that Congress
should consider designating a single individual or office to
maintain visibility over the entire complaint resolution process
from DOD through DOL, DOJ, and OSC. We believe this would
encourage agencies to focus on overall results rather than
agency-specific outputs and thereby improve federal responsiveness
to servicemember complaints that are referred from one agency to
another. In response to this matter, in our 2005 report, both DOL
and OSC were supportive, and both agencies noted that they had the
expertise to oversee the USERRA complaint resolution process.
However, DOL stated that with the mandated demonstration project
ongoing, it would be premature to make any suggestions or
recommendations for congressional or legislative action until the
project has been completed. DOD and DOJ did not provide comments
on this matter.
Agencies Have Taken Action to Improve Information on Employers and
Assistance to Servicemembers Under USERRA
DOD, DOL, DOJ, and OSC have generally been responsive to the
recommendations we have made in our prior reports. Following is
the status of some of the improvements made thus far:
Outreach
Integral to getting servicemembers the help they need is educating
them and their employers on their respective responsibilities
under USERRA. Since 2002, we have reported on DOD's need to obtain
complete and accurate information on the civilian employers to
better target its outreach efforts. Accurate, complete, and
current civilian employer information is important to DOD to
improve its ability to target outreach to employers, to make
informed decisions concerning which reservists should be called
for active duty to minimize the impact that mobilizations might
have on occupations such as law enforcement, and to determine how
businesses may be affected by reserve activation. As we
recommended in our 2002 report, DOD implemented regulations that
required the reporting and collection of employer information for
reserve personnel. Additionally, DOD established compliance goals
for these servicemembers. We noted in our February 2007 report
that the percentage of servicemembers reporting employer
information to DOD had increased, but most reserve components had
still not reached their compliance goals. In addition, we found
that employment data were not necessarily current because some
reservists were not aware of requirements to update their employer
information and the services had not established a formal
mechanism to remind reservists to update this personnel
information as necessary to reflect changes in their current
employment.
To improve the reporting of National Guard and Reserve employment
information, we recommended that the Secretary of Defense direct
the Office of the Assistant Secretary of Defense for Reserve
Affairs to establish specific time frames for reservists to report
their employment data, set specific time frames for reserve
components to achieve the established compliance reporting goals,
and direct the service components to take action to ensure
reporting compliance. In response to this recommendation, DOD
indicated at the time of our report that its current policy on
employer reporting established compliance goals. We noted in our
report that DOD needed to establish a new deadline by which
reservists must report their employer information to DOD and set
specific time frames for reserve components to achieve the
established compliance reporting goal. In addition, to encourage
reservists to keep their employer data current, we recommended
that DOD instruct all military departments to establish a formal
review mechanism that would require all reservists to review and
update at least annually their reported employment-related
information. At the time of our February 2007 report, DOD was in
the process of revising its policy on civilian employer reporting
to require an annual review of reported employer information.
DOD provides USERRA outreach and education to servicemembers using
several mechanisms, including a toll-free information line and
individual and group briefings. DOD monitors the extent to which
it reaches this population and the occurrence of USERRA-related
problems by including questions on these areas in its Status of
the Forces survey, which is periodically conducted to identify
issues that need to be addressed or monitored. We noted in our
2005 report that survey questions offer the potential to provide
insight into compliance and employer support issues. However,
questions on the surveys vary from year to year and have not
always included those pertaining to USERRA compliance and employer
support. To gauge the effectiveness of federal actions to support
USERRA by identifying trends in compliance and employer support,
we recommended that the Secretary of Defense direct the Under
Secretary of Defense for Personnel and Readiness to include
questions in DOD's periodic Status of Forces Surveys to determine
o the extent to which servicemembers experience USERRA-related
problems;
o if they experience these problems, from whom they seek
assistance;
o if they do not seek assistance, why not; and
o the extent to which servicemembers' employers provide support
beyond that required by the law.
In response to this recommendation, DOD incorporated these
additional USERRA-related questions in its June 2006 Status of the
Forces survey.
Data Sharing and Trend Identification
Because the resolution of servicemember complaints could involve
multiple federal agencies, it is important that the agencies be
able to effectively share and transfer information to efficiently
process servicemember complaints. In October 2005, we found that
the automated systems that DOD, DOL, DOJ, and OSC used to capture
data about USERRA complaints were not compatible with each
other.^13 As a result, information collection efforts were
sometimes duplicated, which slowed complaint processing times. To
increase federal agency responsiveness to USERRA complaints, we
recommended that DOD, DOL, DOJ, and OSC develop a system to allow
the electronic transfer of complaint information. At the time of
our report, DOL and OSC concurred with this recommendation, DOJ
did not provide comments, and DOD deferred to the other agencies.
We noted in our February 2007 report that DOL had implemented an
enhancement to its USERRA database in October 2006 to enable the
four USERRA coordinating agencies to electronically transfer case
information between agencies. The database enhancement allowed
DOD, DOL, DOJ, and OSC to access and update the status of cases
using the Internet and produce a report containing aggregate
USERRA complaint data on the cases over which they have
jurisdiction. We further noted in this report that, despite these
enhancements to the USERRA database to allow the electronic
transfer of complaint information between agencies, DOD only had
visibility over those cases that originated with informal
complaints to DOD. Even though DOD shares responsibility with DOL
for USERRA complaints, DOD did not have access to all USERRA
complaint data, and we recommended that DOL provide these data to
DOD's ESGR.^14 In response to this recommendation, in October
2007, DOL provided DOD with the ability to view and download
aggregate information on all USERRA cases in its database.
^13 [29]GAO-06-60 .
^14 [30]GAO-07-259 .
In addition, in October 2005, we reported that when a complaint is
referred from DOL to OSC or DOJ, the agencies are unable to
efficiently process complaints because they are forced to create,
maintain, copy, and mail paper files to other DOL offices and to
OSC and DOJ. To reduce administrative burden and improve oversight
of USERRA complaints processing, we recommended that DOL develop a
plan to reduce reliance on paper files and fully adopt the
agency's automated complaint file system. DOL concurred with this
recommendation and, as a result, is developing an electronic case
record system, scheduled for completion in October 2008, that will
allow all agencies assigned to the case an opportunity to review
documents and add investigative notes or records.
To effectively identify trends in issues facing servicemembers, it
is important in a segmented complaint resolution process that the
complaint data generated by each of the federal agencies be
sufficiently comparable. In our February 2007 report, we noted
that the complaint categories used by each of the four agencies
could not be uniformly categorized to reveal trends in USERRA
complaints. In particular, we noted that the complaint data
collected by DOD and DOL, the two agencies that see the highest
volume of cases, were not categorized in a way that is conducive
to meaningful comparison. Specifically, we found that the two
agencies use different categories to identify reservists' USERRA
complaints for issues such as being refused job reinstatement,
denied an appropriate pay rate, or being denied vacation time. To
allow for the analysis of trends in reporting USERRA complaints,
we recommended that DOD and DOL adopt uniform complaint categories
in the future that would allow aggregate trend analysis to be
performed across the databases. At the time of our report, both
DOD and DOL agreed with this recommendation. Since that time, DOD
and DOL have collaborated to identify common complaint categories
that will allow both agencies to match similar USERRA complaints.
According to officials from both DOD and DOL, these complaint
categories are expected to be pilot tested in fiscal year 2008.
As reservists continue to be exposed to serious injury in
operations in Iraq and Afghanistan, the ability to identify
disability reemployment complaints becomes more critical. However,
we noted in our February 2007 report that the four federal
agencies responsible for assisting servicemembers with USERRA
complaints could not systematically record and track
disability-related complaints. Additionally, we found that these
agencies do not distinguish disability-related complaints from
other types of complaints for tracking and reporting purposes. For
example, the servicemember must indicate that the case involves a
disability for it to be classified as such, and these complaints
may not be distinguishable from any other types of complaints
because a single USERRA complaint may involve a number of issues
that complicates the classification of the case by the agency.
Further, disability-related complaints are not identified using
consistent and compatible complaint categories. DOD classifies
USERRA disability-related complaints within three categories
including medical benefits, job placement, and time limits for
reemployment, while DOL uses one category, reasonable
accommodation and retraining for disabled, to classify USERRA
disability-related complaints. To provide agencies with better
information about disability-related employment complaints, we
recommended that DOL develop a system for recording and tracking
these complaints and share it with the other agencies that
implement USERRA. DOL concurred with this recommendation at the
time of this report. According to DOL officials, DOL's USERRA
database identifies disability claims, and the agency has recently
provided DOD, OSC, and DOJ with access to this system.
Information Reported to Congress
As previously mentioned, the Secretary of Labor is required to
provide an annual report to Congress that includes information on
the number of USERRA complaints reviewed by DOL, along with the
number of complaints referred to DOJ or OSC. We noted in our
February 2007 report that DOL's report to Congress does not
include information on informal complaints filed with ESGR.
Therefore the complaint data that DOL reported to Congress for
fiscal years 2004 and 2005 did not include 80 percent, or 9,975 of
the 12,421 total informal and formal USERRA complaints filed by
reservists during that period. Without data from ESGR, Congress
has limited visibility over the full range of USERRA issues that
reservists face following deployment. Further, without these data,
Congress may lack the information for its oversight of reserve
employment matters. To gain a full perspective of the number and
nature of USERRA complaints filed by reservists in gaining
reemployment upon returning from active duty, we suggested that
Congress consider amending the reporting requirement^15 to require
DOL to include data from DOD's ESGR in its annual report to
Congress. In response to this matter for congressional
consideration, Members of Congress are considering changes to the
legislation.^16
In addition to DOL's report to Congress not reflecting informal
USERRA complaints, we identified data limitations in our July 2007
report that affected the quality of information reported to
Congress that could adversely affect Congress's ability to assess
how well federal sector USERRA complaints are processed and
whether changes are needed.^17 DOL provides information in its
annual report to Congress on the number and percentage of
complaints opened by type of employer, issues raised--such as
discrimination or refusal to reinstate--outcome, and total time to
resolve. We found that the number of federal sector complaints
shown in DOL's USERRA database from February 8, 2005, through
September 30, 2006, exceeded the number of unique claims it
processed during the period of our review. Duplicate, reopened,
and transferred complaints accounted for most of this difference.
Also, in our review of a random sample of case files, we found
o the dates recorded for case closure in DOL's USERRA database did
not reflect the dates on the closure letters in 22 of 52 sampled
complaints and
o the closed code, which DOL uses to describe the outcomes of
USERRA complaints (e.g., granted, settled, no merit, or
withdrawn), was not sufficiently reliable for reporting specific
outcomes of complaints.
^1538 U.S.C. S4332.
^16H.R. 1632 was proposed on March 21, 2007, and was referred to the
Committee on Veterans' Affairs.
^17 [31]GAO-07-907 .
To ensure that accurate information on USERRA complaints'
processing is available to DOL and to Congress, we recommended in
our July 2007 report that the Secretary of Labor direct the
Assistant Secretary of Veterans' Employment and Training to
establish a plan of intended actions with target dates for
implementing internal controls to ensure that DOL's USERRA
database accurately reflects the number of unique USERRA
complaints filed annually against federal executive branch
agencies, the dates those complaints were closed, and the outcomes
of those complaints. In response to our recommendation, DOL issued
a memo from the Assistant Secretary of Veterans' Employment and
Training in July 2007 instructing investigators to ensure that the
closed date entered into DOL's USERRA database match the date on
the closure letter to the servicemember, and DOL conducted
mandatory training on this memo beginning in August 2007. Further,
DOL officials told us that DOL's fiscal year 2007 annual report
will count reopened complaints as a single complaint if brought by
the same individual, against the same employer, and on the same
issue.
Notification of Rights to Referral and Internal Reviews
We reported in July 2007 that in cases where servicemembers sought
assistance from DOL and the agency could not resolve the
complaints, DOL did not consistently notify servicemembers in
writing of their right to have their unresolved complaints against
federal executive branch agencies referred to OSC or to bring
their claims directly to the Merit Systems Protection Board.^18
Specifically, our review of a random sample of complaint files
showed that DOL failed to notify servicemembers in writing in half
of the unresolved complaints and notified others of only some of
their options. In addition, we found that DOL's USERRA Operations
Manual failed to provide clear guidance to its investigators on
when to notify servicemembers of their rights and the content of
the notifications. In July 2007, we also reported that DOL has no
internal process to routinely review investigators' determinations
before claimants are notified of them and noted that this lack of
review could have caused DOL's inconsistent practice of notifying
servicemembers for their rights to referral. We recommended that
the Secretary of Labor direct the Assistant Secretary for
Veterans' Employment and Training to (1) require VETS's
investigators to undergo mandatory training on the procedures to
be followed concerning notification of rights to referral, (2)
incorporate into the formal update to DOL's USERRA Operations
Manual guidance concerning the notification rights to referral,
and (3) develop and implement an internal review mechanism for all
unresolved complaints before servicemembers are notified of
determinations and complaints are closed.
^18 [32]GAO-07-907 .
Since that time, DOL has taken the following actions:
o issued a memo in July 2007 from the Assistant Secretary for
Veterans' Employment and Training to regional administrators,
senior investigators, and directors concerning case closing
procedure changes, including standard language to use to ensure
that servicemembers (federal and nonfederal) are apprised of their
rights;
o began conducting mandatory training on the memo in August 2007;
o incorporated the policy changes into the revised Manual, which
according to DOL officials is expected to be released in January
2008; and
o according to DOL officials, beginning in January 2008, all
claims are to be reviewed before the closure letter is sent to the
claimant.
These are positive steps. It is important for DOL to follow
through with its plans to ensure that clear and uniform guidance
is available to all involved in processing USERRA complaints.
Mr. Chairman, Senator Enzi, and Members of the Committee, this
concludes our remarks. We will be pleased to take questions at
this time.
For further information regarding this statement, please contact
Brenda Farrell at 202-512-3604 or [21][email protected] or George
Stalcup at 202-512-9490 or [22][email protected] . Contact points
for our Offices of Congressional Relations and Public Affairs may
be found on the last page of this testimony. Individuals making
contributions to this testimony include Laura Durland, Assistant
Director; Belva Martin, Assistant Director; James Ashley; Karin
Fangman; K. Nicole Harms; Kenya Jones; Mae Jones; Ronald La Due
Lake; Joseph Rutecki; Tamara F. Stenzel; and Kiki Theodoropoulos.
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Highlights of [36]GAO-08-254T , a testimony to Committee on Health,
Education, Labor and Pensions, U.S. Senate
November 8, 2007
MILITARY PERSONNEL
Federal Agencies Have Taken Actions to Address Servicemembers' Employment
Rights, but a Single Entity Needs to Maintain Visibility to Improve Focus
on Overall Program Results
Since September 11, 2001, the Department of Defense (DOD) has mobilized
more than 500,000 National Guard and Reserve members. As reservists return
to civilian life, concerns exist about difficulties with their civilian
employment. The Uniformed Services Employment and Reemployment Rights Act
(USERRA) of 1994 protects the employment rights of individuals, largely
National Guard and Reserve members, as they transition back to their
civilian employment. GAO has issued a number of reports on agency efforts
to carry out their USERRA responsibilities. DOD, the Department of Labor
(DOL), the Department of Justice (DOJ), and the Office of Special Counsel
(OSC) have key responsibilities under the act. GAO was asked to discuss
the overall process that the agencies use to implement USERRA.
Specifically, this testimony addresses (1) organizational accountability
in the implementation of USERRA and (2) actions that the agencies have
taken to improve their processes to implement USERRA. For this testimony,
GAO drew from its most recent reports on USERRA.
[37]What GAO Recommends
In October 2005 GAO suggested that Congress make a single entity
accountable for maintaining visibility over the entire USERRA complaint
resolution process. Designating one single entity would, in GAO's view,
enhance efforts to improve overall program results.
Depicted below are servicemembers' options for obtaining federal
assistance with their USERRA complaints.
USERRA defines individual agency roles and responsibilities; however, it
does not designate any single individual or office as accountable for
maintaining visibility over the entire complaint resolution process. From
the time informal complaints are filed with DOD's Employer Support of the
Guard and Reserve through final resolution of formal complaints at DOL,
DOJ, or OSC, no one entity has visibility over the entire process.
The four agencies have generally been responsive to GAO's recommendations
to improve the implementation of USERRA--on outreach to employers, data
sharing and trend information, reporting to Congress, and the internal
review of DOL's investigators' determinations of USERRA claims.
References
Visible links
15. http://www.gao.gov/cgi-bin/getrpt?GAO-07-907
16. http://www.gao.gov/cgi-bin/getrpt?GAO-07-259
17. http://www.gao.gov/cgi-bin/getrpt?GAO-06-60
18. http://www.gao.gov/cgi-bin/getrpt?GAO-05-74R
19. http://www.gao.gov/cgi-bin/getrpt?GAO-02-608
20. http://www.gao.gov/cgi-bin/getrpt?GAO-08-229T
21. mailto:[email protected]
22. mailto:[email protected]
23. http://www.gao.gov/
24. http://www.gao.gov/
25. http://www.gao.gov/fraudnet/fraudnet.htm
26. mailto:[email protected]
27. mailto:[email protected]
28. mailto:[email protected]
29. http://www.gao.gov/cgi-bin/getrpt?GAO-06-60
30. http://www.gao.gov/cgi-bin/getrpt?GAO-07-259
31. http://www.gao.gov/cgi-bin/getrpt?GAO-07-907
32. http://www.gao.gov/cgi-bin/getrpt?GAO-07-907
33. http://www.gao.gov/cgi-bin/getrpt?GAO-08-254T
34. mailto:[email protected]
35. mailto:[email protected]
36. http://www.gao.gov/cgi-bin/getrpt?GAO-08-254T
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