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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This is a work of the U.S. government and is not subject to copyright
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To view the full product, including the scope
and methodology, click on [33]GAO-08-254T .

For more information, contact Brenda Farrell at (202) 512-3604 or
[34][email protected] or George Stalcup at (202) 512-9490 or
[35][email protected] .

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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