-------------------------Indexing Terms------------------------- 
REPORTNUM:   GAO-08-397R		

TITLE:     Posthearing Questions Related to Federal Agencies' Activities 
regarding the Uniformed Services Employment and Reemployment Rights 
Act

DATE:   01/10/2008 
				                                                                         
-----------------------------------------------------------------   

This is the accessible text file for GAO report number GAO-08-397R 
entitled 'Posthearing Questions Related to Federal Agencies' Activities 
regarding the Uniformed Services Employment and Reemployment Rights 
Act' which was released on January 10, 2008. 

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January 9, 2008: 

The Honorable Edward M. Kennedy: 
Chairman: 
Committee on Health, Education, Labor and Pensions: 
United States Senate: 

Subject: Posthearing Questions Related to Federal Agencies' Activities 
regarding the Uniformed Services Employment and Reemployment Rights 
Act: 

Dear Mr. Chairman: 

On November 8, 2007, I testified before your committee at a hearing 
entitled "Protecting the Employment Rights of Those Who Protect the 
United States."[Footnote 1] This letter responds to your request that I 
provide answers to questions for the record. The questions, along with 
my responses, follow. 

Questions from Senator Patty Murray: 

1. In their written testimony, GAO reported that some claims are taking 
close to two years to process in their entirety. 

a. Why are USERRA claims taking so long to resolve at DOD, DOL, and 
OSC? 

The data referenced in our testimony were offered as an illustrative 
example of cases that were opened and closed multiple times where the 
Department of Labor's (DOL) database did not capture the full scope of 
time it took to resolve these claims. Of the 10,061 formal complaints 
filed with DOL from October 1, 1996, through June 30, 2005, more than 
430 were closed and reopened, and 52 complaints were closed and 
reopened two or more times. A case could have been opened and then 
closed and then several months later reopened and then closed again. 
However, the time lapse between when a case was closed and subsequently 
reopened was not captured in DOL's database. As cited in the testimony, 
our analysis of the 52 cases that were opened and closed two or more 
times showed that the processing time captured in DOL's database 
averaged 3 to 4 months, but the total elapsed times servicemembers 
waited to have their complaints fully addressed averaged about 20 to 21 
months from the time they filed their initial formal complaints with 
DOL until they were fully addressed by DOL, the Department of Justice 
(DOJ), or the Office of Special Counsel (OSC). It should also be noted 
that our analysis did not include any elapsed time associated with 
assistance provided by the Department of Defense's (DOD) Employer 
Support of the Guard and Reserve (ESGR) representatives reviewing 
informal complaints if that additional assistance was requested. The 
overall point being made in our testimony was that it was taking much 
longer for these cases to be resolved than the database was capturing. 
We did not perform an overall analysis of processing time to determine 
the average length of time it took to resolve all formal complaints 
filed during that time period. 

In our review of the demonstration project of federal sector Uniformed 
Services Employment and Reemployment Rights Act (USERRA) complaints, 
which represent approximately 10 percent of complaints filed, we found 
that DOL has a lengthy two-phase review process before complaints are 
referred to OSC. For those complaints where a servicemember requests 
that his/her complaint be referred to OSC, two sequential DOL reviews 
take place: a DOL Veterans' Employment and Training Service (VETS) 
regional office prepares a report of the investigation, including a 
recommendation on the merits of the complaint, and a regional DOL 
Office of the Solicitor conducts a separate legal analysis and makes an 
independent recommendation on the merits of the complaint. For those 
complaints referred to OSC during the period February 8, 2005, through 
September 30, 2006, we found that it took an average of 247 days or 
about 8 months before DOL sent the complaint to OSC. DOL uses the same 
process for nonfederal complaints, which are referred by DOL to DOJ, 
but we have not conducted a similar analysis of those complaints. 

What can each of your agencies do to make this process more efficient 
and effective for veterans? 

We have made a number of recommendations to DOD, DOL, DOJ, and OSC to 
improve the efficiency and effectiveness of their USERRA complaint 
processes. The agencies have generally been responsive to our 
recommendations. The agencies have improved their implementation of 
USERRA in the areas of outreach to employers, data sharing and trend 
information, reporting to Congress, and the internal review of DOL's 
investigators' determinations of USERRA complaints. One key effort that 
DOL has implemented is the use of an electronic case management system 
to more efficiently and effectively manage its data. At the time of our 
analysis of closed and reopened complaints, DOL was using a paper file 
system to manage its records. We had to conduct manual reviews of the 
individual case files to obtain the data necessary to calculate the 
total elapsed time for those cases that were opened and closed multiple 
times. This new electronic system now provides more visibility of the 
case data and could make it easier to determine total processing time, 
if the data are sufficiently reliable. 

2. We know as the war grows, so will the number of returning veterans 
who may need USERRA protection, resulting in a much greater case load 
than DOL, DOD, DOJ, OSC are currently handling. 

a. Is the system as it stands today, ready and able to handle a 
possible increase in USERRA claims? 

USERRA provides both informal and formal assistance to servicemembers. 
Our past work reviewed the types and extent of assistance but did not 
address the adequacy of resources to handle any potential increase in 
USERRA complaints. Under the current system, servicemembers who have 
USERRA-related issues with their employers can file informal complaints 
with DOD's ESGR. A subgroup of ESGR's specially trained volunteers 
serve as impartial ombudsmen who informally mediate USERRA issues that 
arise between servicemembers and their employers. When ESGR ombudsmen 
cannot resolve complaints informally, they notify servicemembers about 
their options. Servicemembers can file formal complaints with DOL or 
file complaints directly in court (if their complaints involve 
nonfederal employers) or with the Merit Systems Protection Board (if 
their complaints involve federal executive branch employers). Under a 
federal sector demonstration project established by the Veterans 
Benefits Improvement Act of 2004,[Footnote 2] 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 
investigators examines and attempts to resolve it. 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). 

Our February 2007 report showed that nearly 10,000 informal complaints 
had been filed with ESGR and over 2,000 formal complaints had been 
filed with VETS and OSC during fiscal years 2004 and 2005.[Footnote 3] 
At the time of our report the data were not yet available for fiscal 
year 2006. 

b. How can your agencies work proactively to prevent the need for 
USERRA claims in the future? 

DOD and DOL have taken steps to conduct outreach efforts to educate 
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 VETS investigators, who are located 
nationwide. To conduct this outreach, DOD has placed an increased 
emphasis on capturing servicemembers' civilian employer data. In 2001, 
DOD established a database to collect voluntarily reported employer 
information from reserve component members. In March 2003, DOD directed 
the military departments to collect civilian employer information, and 
in August 2004, DOD implemented regulations that required each military 
department to implement employment related information reporting 
requirements for personnel assigned to the Ready Reserve. The 
department has established a 95-percent reporting compliance goal for 
the Selected Reserve. In August 2006, DOD's data showed an overall 
compliance rate of 91 percent. 

Evidence that increased attention is also being paid to servicemembers' 
education is shown in the June 2006 Status of Forces Survey results. 
The 2006 survey showed that more personnel reported being briefed on 
USERRA than in 2004. Servicemembers reported being briefed on USERRA an 
average of 1.8 times compared with 1.5 times in May 2004. Additionally, 
in May 2004, 27 percent of the servicemembers reported that they had 
never been briefed on USERRA and in June 2006 that number had decreased 
to 21 percent. 

3. I understand that DOL and DOD have been working together to address 
the data compatibility concerns that GAO raised concerning common 
complaint categories for USERRA claims and that we can expect a pilot 
test of this new program in 2008. 

a. Will this new initiative fully address the data concerns GAO raised 
so that congress has a more complete picture of the types of USERRA 
claims being filed? 

When implemented, the common data fields will allow analyses to be 
conducted that will provide Congress with a more comprehensive picture 
of the types of claims being filed. According to DOD and DOL officials, 
DOD's ESGR and DOL developed a USERRA issue crosswalk between ESGR 
problem codes and DOL's USERRA Information Management System (UIMS) 
issue codes. While this crosswalk will allow both agencies to match 
common issues, it only applies to cases DOL's VETS investigates and 
does not apply to claims handled by DOJ and OSC. To include 
servicemember claims filed with ESGR in DOL's annual report to 
Congress, all data will be sent from ESGR to VETS using UIMS codes. 
This change will allow for trend analysis to be conducted starting with 
fiscal year 2008 data. However, because existing data will not be 
recoded, it will be several years before any meaningful "trend" 
analysis can be performed that will show what is: 

happening over time in the various complaint categories. At the time of 
our testimony, November 2007, DOL's USERRA Annual Report to Congress 
for Fiscal Year 2006 due in February 2007 had not yet been released. 

We will make copies of this letter available to others upon request. 
This letter will also be available at no charge on GAO's Web site at 
[hyperlink, http://www.gao.gov]. 

For additional information on our work on federal agencies' activities 
regarding USERRA, please contact me at (202) 512-3604 or 
[email protected], or George H. Stalcup, Director, Strategic Issues at 
(202) 512-9490 or [email protected]. Contact points for our Offices of 
Congressional Affairs and Public Affairs may be found on the last page 
of this letter. 

Sincerely yours, 

Signed by: 

Brenda S. Farrell: 

Director: 

Defense Capabilities and Management: 

[End of section] 

Footnotes: 

[1] GAO, 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, GAO- 
08-254T (Washington, D.C.: Nov. 8, 2007). 

[2] Pub. L. No. 108-454, ï¿½ 204 (2004), 38 U.S.C. ï¿½ 4301 note. The 
demonstration project was extended through December 31, 2007. See 
section 130 of Pub. L. No. 110-92, as amended by Pub. L. No. 110-149 
(Dec. 21, 2007). 

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

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