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S. HRG. 110–403

OVERSIGHT HEARING ON UNIFORMED SERVICES

EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT

HEARING

BEFORE THE

COMMITTEE ON VETERANS’ AFFAIRS 

UNITED STATES SENATE

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

OCTOBER 31, 2007

Printed for the use of the Committee on Veterans’ Affairs

(

Available via the World Wide Web: http://www.access.gpo.gov/congress/senate 

(II)

COMMITTEE ON VETERANS’ AFFAIRS 

DANIEL K. AKAKA, Hawaii, Chairman 

JOHN D. ROCKEFELLER IV, West Virginia 

PATTY MURRAY, Washington 

BARACK OBAMA, Illinois 

BERNARD SANDERS, (I) Vermont 

SHERROD BROWN, Ohio 

JIM WEBB, Virginia 

JON TESTER, Montana 

RICHARD BURR, North Carolina, Ranking 

Member 

ARLEN SPECTER, Pennsylvania 

LARRY E. CRAIG, Idaho, 

JOHNNY ISAKSON, Georgia 

LINDSEY O. GRAHAM, South Carolina 

KAY BAILEY HUTCHISON, Texas 

JOHN ENSIGN, Nevada 

WILLIAM E. BREW, Staff Director 

LUPE WISSEL, Republican Staff Director 

(III)

C O N T E N T S 

OCTOBER 31, 2007

SENATORS 

Page 

Akaka, Hon. Daniel K., Chairman, U.S. Senator from Hawaii ........................... 1

Tester, Hon. Jon, U.S. Senator from Montana ...................................................... 2

Murray, Hon. Patty, U.S. Senator from Washington ........................................... 3

Burr, Hon. Richard, Ranking Member, U.S. Senator from North Carolina ....... 4

Prepared statement .......................................................................................... 4

WITNESSES 

Stalcup, George H., Director, Strategic Issues, U.S. Government Accountability Office ......................................................................................................... 5

Prepared statement .......................................................................................... 8

Responses to written questions from: 

Hon. Daniel K. Akaka .................................................................................. 20

Hon. John Tester ........................................................................................... 21

Ciccolella, Charles C., Assistant Secretary for Veterans’ Employment and 

Training, U.S. Training, U.S. Department of Labor ......................................... 26

Prepared statement .......................................................................................... 28

Responses to written questions from Hon. Daniel K. Akaka ........................ 33

Byrne, Jim, Deputy Special Counsel, U.S. Office of Special Counsel; accompanied by Patrick Boulay, Chief, USERRA Unit, U.S. Office of Special 

Counsel .................................................................................................................. 35

Prepared statement .......................................................................................... 36

Responses to written questions from Hon. Daniel K. Akaka ........................ 37

Appendix A .................................................................................................... 42

Boulay, Patrick, Chief, USERRA Unit, U.S. Office of Special Counsel .............. 47

Tully, Matthew B., Tully, Rinckey and Associates, PLLC ................................... 53

Prepared statement .......................................................................................... 55

APPENDIX 

Pope, Philip, Deputy Executive Director, National Committee for Employer 

Support of the Guard and Reserve; prepared statement .................................. 73

(1)

OVERSIGHT HEARING ON UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT 

RIGHTS ACT 

WEDNESDAY, OCTOBER 31, 2007

U.S. SENATE, 

COMMITTEE ON VETERANS’ AFFAIRS, 

Washington, D.C. 

The Committee met, pursuant to notice, at 9:30 a.m., in room 

562, Dirksen Senate OfficeBuilding, Hon. Daniel K. Akaka, Chairman of the Committee, presiding. 

Present: Senators Akaka, Murray, Tester, and Burr. 

OPENING STATEMENT OF HON. DANIEL K. AKAKA, CHAIRMAN, 

U.S. SENATOR FROM HAWAII 

Chairman AKAKA. This hearing will come to order. I want to say 

aloha and welcome to all of youto the Committee’s oversight hearing on the Uniformed Services Employment and Reemployment 

RightsAct. We are going to call it from now on USERRA. 

As our troops are returning home from battle, many of them seek 

to return to the jobs thatthey held prior to their military service, 

particularly those serving in the Guard and Reserveunits. USERRA 

provides these servicemembers with certain protections. USERRA 

also sets outcertain new responsibilities for employers, including to 

reemploy returning veterans in theirprevious jobs. This protection 

applies to virtually all jobs, including those in the Federalsector. 

I must admit to being particularly upset at the volume of 

USERRA claims related to Federalservice. It is simply wrong that 

individuals who were sent to war by their government should, 

upontheir return, be put in the position of having to do battle with 

that same government in order toregain their jobs and benefits. 

Several years ago, Congress created a demonstration projects in 

the Veterans’ BenefitsImprovement Act of 2004, the Public Law 

108–454 under which the Office of the Special Counsel,OSC, rather 

than the Department of Labor’s Veterans’ Employment and Training Service, VETS, wasgiven the authority to receive and investigate certain Federal sector USERRA claims. GAO was toreport to 

the Congress on the operation and results of the demonstration 

project together with anassessment of the advisability of transferring the responsibility for all Federal sector USERRAclaims from 

VETS to OSC. 

The GAO report was received on July 20, 2007, and I will ask 

that it be included in itsentirety in the proceedings of this hearing. 

2

Chairman AKAKA. Unfortunately, it is not clear to me that results of the demonstration projectand the GAO report provide sufficient evidence to permit this Committee to decide on the 

properjurisdiction of these claims. I believe that a good case can be 

made for retaining jurisdiction byboth VETS and OSC. Thus, this 

morning, we will be hearing from each of the parties who will 

havethe opportunity to make their case to the Committee as to 

which organization should have theresponsibility. 

We will also be hearing testimony from a firsthand perspective 

from Mr. Matthew Tully, whowill share with the Committee his experiences and his expertise. 

We will need to move through this hearing in a timely fashion 

so I ask that our witnessesadhere to the five-minute rules for your 

oral presentation. Your full statements, of course, willbe made a 

part of the Committee’s record. 

Again, I want to say welcome and I look forward to hearing from 

each of you this morning. 

For the information of others present today, let me explain that 

the Filipino veterans andfamily members who are here today are 

expressing their support for Senate action on an omnibusbenefits 

bill reported by our Committee that contains provisions which 

would recognize the serviceof Filipino veterans during World War 

II as service in the U.S. Armed Forces. As I have explainedto those 

supporting this bill, I am working hard to get floor action, but the 

Senate calendar iscrowded and since I am not able to predict how 

much time there will be needed to debate the bill,it has been difficult to have the bill scheduled and so I am still trying to deal 

with thatagreement on time for the floor. I am continuing to work 

on bringing the bill before the fullSenate. 

I would like at this time to call on Senator Tester for any opening remarks that the Senatormay have. 

STATEMENT OF HON. JON TESTER,

U.S. SENATOR FROM MONTANA 

Senator TESTER. Well, thank you, Mr. Chairman. I am sorry I 

didn’t have more time to get here to hear your remarks so I will 

keep my opening statement very, very short. 

This is a different kind of war than what we have had in previous times, where a large number of Guard and Reservists are 

being called onto the battlefield. When they come back, they need 

to have the labor opportunities there that they had when they left. 

I come from a small town in north central Montana and I am 

still a bit of an outsider when I come here, but one of the things 

that always amazes me about Washington, D.C. is the size of the 

bureaucracy. I mean, it is huge. If we are not ensuring that the 

veterans who come back have the job opportunities and the agencies that serve them are not living by the law, they don’t have the 

opportunities under the law, it is a serious misstep by the Federal 

Government. 

I will just tell you that if we don’t know who is doing or who is 

supposed to be doing this job, I would hope that, Mr. Chairman, 

we don’t create another bureaucracy to do it. I hope we hold the 

people accountable who are supposed to do the job to do the job, 

because that is really what needs to happen. I think this is a very, 

3

very serious issue. I think we are holding this hearing, because 

quite honestly, if you put yourselves in the shoes of the Guard or 

the Reservists, or active military, as far as that goes, that get 

pulled into the field of battle, away from their family, in a foreign 

country, under incredible pressures, under incredible duress, and 

then to have them come home and they aren’t given the opportunities that they were promised when they left is unforgivable. 

So with that, Mr. Chairman, I look forward to this hearing and 

I appreciate you calling it and I look forward to the testimony. 

Chairman AKAKA. Thank you very much, Senator Tester. 

Senator Murray? 

STATEMENT OF HON. PATTY MURRAY,

U.S. SENATOR FROM WASHINGTON 

Senator MURRAY. Well, Mr. Chairman, thank you very much, 

and I know that Ranking Member Burr is right behind me here, 

as well, but I want to thank you for calling this important hearing 

on the employment rights of our Nation’s veterans. 

We all know that our brave men and women are called upon to 

serve our country. They put their lives on the line for us and our 

safety, and when they return home, it is our responsibility to fulfill 

all of our promises to them. So one of them should be that they 

shouldn’t have to worry about whether or not they are going to lose 

their jobs if they leave to work and serve us overseas. 

Mr. Chairman, this hearing is really going to ask us a pivotal 

question. Are we adequately protecting the employment rights of 

today’s servicemembers and veterans? 

Despite the laws that we have put in place to protect them, I still 

hear from my constituents who have run into problems at work because of their military obligations. We have to do everything we 

can in our power to ensure that our veterans, our Guard and Reserve members, and their families aren’t penalized by their service 

to our country. These citizen-soldiers make the all-volunteer military possible and we have got to make certain that we aren’t driving people out of the military because they are concerned about 

protecting their jobs. 

Mr. Chairman, I have to leave this hearing, unfortunately, early, 

but I am looking forward to hearing the witnesses today and reviewing their testimony about what we can do to strengthen the 

protection of veteran employment rights. 

I just want to mention two main concerns. The first I have is 

about a test program that is looking at which Federal agency 

should be responsible for our Federal employees’ claims under 

USERRA. Over the last 2 years, the Labor Department’s Veterans’ 

Employment and Training Service in the Office of Special Counsel 

participated in that demonstration project which applies two different approaches to review the Federal claims under the law, and 

as we move forward on that issue, I want to make sure that we 

avoid unnecessary confusion for veterans who are seeking claims 

under that system. I have some concern about splitting the responsibility between two agencies that might do that and might lead to 

some of our veterans asking why some of them go through a different process than others. I think that is the wrong message to 

4

send to our veterans and I look forward to working with my colleagues to find the right approach to that. 

The second concern I wanted to mention really quickly is complaints by Guard and Reserve members and how they are being 

handled. This year, I have met with many veterans, especially 

Guard and Reserve, who have told me that they have had difficulty 

getting employment assistance once they are demobilized and others who have said that they had no idea that employment services 

were available and weren’t aware that USERRA protected their 

rights to get their old jobs back. 

So given those concerns, I am looking forward to hearing the testimony this morning about how the Labor Department has worked 

with the Office of Special Counsel to ensure that our 

servicemembers receive the attention they deserve, and for Mr. 

Byrne, I hope to hear how the OSC can make a connection with 

our veterans and how we can prevent any of this confusion for our 

veterans who are seeking claims. 

So thank you very much, Mr. Chairman. I look forward to the 

testimony this morning. 

Chairman AKAKA. Thank you very much, Senator Murray. 

Senator BURR?

STATEMENT OF HON. RICHARD BURR, RANKING MEMBER,

U.S. SENATOR FROM NORTH CAROLINA 

Senator BURR. Mr. Chairman, thank you. I apologize for my tardiness to you and to our witnesses today. I would ask unanimous 

consent that my opening statement be included in the record. 

Chairman AKAKA. Without objection. 

Senator BURR. I will forego reading it, even though it is great 

practice for me. I welcome all of our witnesses today and I thank 

you for holding this hearing, Mr. Chairman. 

[The prepared statement of Senator Burr follows:]

PREPARED STATEMENT OF HON. RICHARD BURR,

U.S. SENATOR FROM NORTH CAROLINA

Thank you, Mr. Chairman, and all of our panelists for being here today. We are 

here to discuss a very important topic: whether we as a Nation are doing enough 

to protect the civilian careers of those who serve in our Armed Forces, particularly 

members of the Guard and Reserve. 

It is incumbent on all of us to recognize and honor the tremendous sacrifices that 

these servicemembers and their families continue to make and help ease their transition as they move forward. More than 60 years ago Congress recognized that those 

who serve our country in a time of need should be entitled to resume their civilian 

jobs when they return home. After Congress passed the first law providing reemployment rights to servicemembers in 1940, President Roosevelt said these rights 

were part of ‘‘the special benefits which are due to the members of our armed 

forces—for they ‘have been compelled to make greater economic sacrifice and every 

other kind of sacrifice than the rest of us.’ ’’. 

As we all know, the sacrifices by this generation of servicemembers are just as 

profound. More than one and a half million Americans have been deployed to fight 

in the War on Terror. In North Carolina alone, nearly 1,600 members of the Guard 

and Reserves are serving today. Many left behind not only family and friends, but 

valued civilian careers. For them, the modern reemployment law, the Uniformed 

Services Employment and Reemployment Rights Act, or USERRA, requires that 

they be given their jobs back when they return home, with all the benefits and seniority that would have accumulated during their absence. 

Many employers are not only complying with this law but are going above and 

beyond what’s required in taking care of their Guard and Reserve employees. In 

fact, last year a company in my home state—Skyline Membership Corporation—

5

joined a distinguished list of employers that have received the Secretary of Defense 

Employer Support Freedom Award. This award is the highest recognition that is 

given to an employer who demonstrates extraordinary support of their employees 

who serve in the Guard and Reserves. I am proud of Skyline’s leadership, and I encourage more employers to follow their lead. 

While every employer should strive to meet or exceed the requirements of 

USERRA, Congress has stressed that ‘‘the Federal Government should be a model 

employer’’ when it comes to complying with this law. In my view, this means the 

Federal Government should make sure that not a single returning servicemember is 

denied re-instatement to a Federal job. But unfortunately, we aren’t completely 

there yet. 

For those who encounter problems when they attempt to resume their Federal 

jobs, Congress authorized a demonstration project to determine whether they would 

be better served by having their complaints investigated by the Office of Special 

Counsel rather than the Department of Labor. Having looked over today’s testimony 

on the results of that demonstration project, I would make this general observation: 

Many of the recommendations offered involve process—such as improving data reliability and ensuring internal reviews. However, the truly critical issue—and the one 

I am most interested in hearing about today—is not about the process but about 

outcomes. 

I want to know whether we are preventing USERRA violations from occurring in 

the first place. When problems arise, are servicemembers getting timely resolutions 

to their concerns? And are they satisfied with the service they receive? Whether it 

is done by the Office of Special Counsel or the Department of Labor, it must be our 

goal to make sure that the answer to these questions is always ‘‘yes.’’ We owe nothing less to those who have served and sacrificed so much for our Nation. And I hope 

today we will come closer to determining how best to structure this system to 

achieve that result. 

As for the second focus of the hearing today, the Dole-Shalala Commission recently recommended that Congress amend the Family and Medical Leave Act to provide up to 6 months of leave for family members caring for seriously wounded 

servicemembers. As we consider this legislative change, I hope employers across the 

Nation will not wait, but will act now to provide whatever accommodations they can 

to protect the jobs of these family members. I hope employers will show their gratitude for the sacrifices of our wounded servicemembers and the sacrifices of their 

family members who are a critical part of their recoveries. 

Mr. Chairman, I take very seriously the Commission’s recommendation that we 

change the law toensure that the jobs of these family members are protected, and 

I look forward to hearing from our witnesses about how we can best go about implementing that recommendation. Given thetremendous sacrifices of these family members, protecting their livelihoods is simply the rightthing to do.

Thank you, Mr. Chairman, I yield the floor.

Chairman AKAKA. I am pleased to introduce our first panel this 

morning. Mr. George Stalcup is the Director of Strategic Issues for 

the Government Accountability Office. 

Mr. Stalcup, I want to also take a moment to thank you for your 

cooperation with the Committee and the Committee staff during 

preparation of this hearing. I know that it was set up on a relatively short notice and I do appreciate your ‘‘can do’’ approach and 

also the patience of our Committee Members, as well. 

It is good to have you, and I would now ask you to proceed with 

your opening statement. 

STATEMENT OF GEORGE H. STALCUP, DIRECTOR, STRATEGIC 

ISSUES, U.S. GOVERNMENT ACCOUNTABILITY OFFICE 

Mr. STALCUP. Thank you, Mr. Chairman. Chairman Akaka, 

Ranking Member Burr, Senator Murray, Senator Tester, I am 

pleased to be here today to discuss our work looking at the demonstration project that has been described by the Chairman. 

Today, I want to make three points. I want to talk about the 

claims processing under the demonstration project. I want to talk 

about the findings of our work, the recommendations that we have 

6

made, and what actions have been taken against those recommendations today. And I want to talk about some factors that 

the Congress might consider related to extending or not extending 

the demonstration project. 

Under the demonstration, DOL continued to process USERRA 

claims as it had prior to the demonstration, that is, using its network nationwide and over 100 investigators. To investigate its 

share of the USERRA claims, OSC instituted a centralized approach within its Washington, D.C. headquarters with about a 

half-a-dozen investigators and attorneys. OSC’s other role under 

USERRA, is handling claims referred to it at the request of claimants after an initial investigation by Labor did not resolve the 

claim, remained unchanged during the demonstration project. 

To assess the reliability of data, we reviewed a random sample 

of claims processed by both entities. Our review of the sample 

showed reliability problems with data at VETS. This is the same 

data that they use to report to the Congress. For the period of our 

review, the VETS database showed 202 claims being opened. We 

determined, however, that this number included duplicate, reopened, and transferred claims; and, in fact, only 166 unique 

claims had actually been investigated. 

We also found errors in the data for both case closure dates and 

for codes used to indicate the outcomes of its investigations. Using 

corrected closure dates from our review of the sample of cases, we 

estimated that VETS average processing time for investigations 

opened and closed during our review ranged from 53 to 86 days. 

During the period of our review, OSC processed 269 claims in an 

average of 115 days. In terms of data, we found the OSC’s case 

closed dates to be sufficiently reliable, but not the code used to indicate outcomes of claim investigations. 

Our review of the sample case files at DOL also showed the 

claimants were not consistently notified of their right to have their 

claims referred to OSC or to bring their claims directly to MSPB. 

VETS failed to provide any written notice to half of the claimants 

with unresolved cases, notified others of only some options, and inaccurately advised others. Two contributing factors may have been 

the lack of clear guidance in the VETS USERRA users manual as 

well as a lack of an internal process for reviewing investigator determinations before claimants were notified. 

During our review and citing our preliminary findings, DOL officials required each region to revise its guidance concerning the notification of rights, and then since our review, DOL has taken additional actions. They have provided more guidance to the field in 

terms of case closing procedures to help ensure that claimants are 

clearly apprised of their rights. They have drafted policy changes 

for the operations manual that are due out in January. And they 

have begun to conduct mandatory training on these revised requirements. 

In addition, DOL officials have indicated to us that beginning in 

January, all claim determinations will be reviewed before closure 

letters are sent to claimants. These are very positive steps, but it 

is important that DOL follow through on these efforts. 

If Congress decides to extend the demonstration project, it will 

be important that clear objectives be set. There were no such objecVerDate 0ct 09 2002 15:24 Jun 09, 2008 Jkt 000000 PO 00000 Frm 00010 Fmt 6633 Sfmt 6601 H:\PS41451\DOCS\41385.TXT SENVETS PsN: PAULIN
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tives in the legislation creating the current demonstration project. 

For example, objectives could focus on several areas that could help 

measure the quality of service to claimants. Clearly articulated 

goals would also facilitate any follow-on review to determine the 

extent to which those objectives are achieved. In this regard, our 

earlier work could provide a valuable baseline. 

Congress may also want to consider some potential pros and cons 

of options if the demonstration project is not extended. For example, Congress could choose to return to the predemonstration setup where Labor investigated all USERRA claims. In this regard, 

Labor has an infrastructure in place. Further, all USERRA claims, 

both Federal and non-Federal, would then be processed by a single 

agency. At the same time, however, DOL has only recently taken 

or is still in process of taking actions to correct the deficiencies we 

found and the effectiveness of these actions has not yet been determined. 

Congress could also decide to provide OSC the responsibility and 

authority to handle all USERRA claims, Federal claims. This 

would eliminate the lengthy two-phase process currently carried 

out by DOL on all USERRA cases when they are referred to OSC, 

but this may also require OSC to expand its overall infrastructure, 

hire additional staff, and make other operational changes. 

As you stated, Mr. Chairman, most importantly, with the Nation’s attention so focused on those who serve our country, it is 

vital that their employment and reemployment rights are protected. 

This concludes my prepared remarks and I would be happy to 

answer any questions. 

[The prepared statement of Mr. Stalcup follows:]

8

PREPARED STATEMENT OF GEORGE H. STALCUP, DIRECTOR, STRATEGIC ISSUES, U.S. 

GOVERNMENT ACCOUNTABILITY OFFICE


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1GAO, Military Personnel: Considerations Related to Extending Demonstration Project on 

Servicemembers’ Employment Rights Claims, GAO–08–229T (Washington, D.C.: Oct. 31, 2007). 2See, section 204 of Pub. L. No. 108–454, 118 Stat. 3598, 3606–3608, 38 U.S.C. § 4301 note, 

Pub. L. No. 110–92, sections 106(3) and 130 (Sept. 29, 2007); Pub. L. No. 110–116, Division B, 

section 101 (Nov. 13, 2007); Pub. L. No. 110–137 (Dec. 14, 2007), and Pub. L. No. 110–149, section 1 (Dec. 21, 2007). 3On December 13, 2007, S. 2471, ‘‘USERRA Enforcement Improvement Act of 2007’’ was introduced in the Senate. 4GAO, Military Personnel: Improved Quality Controls Needed over Servicemembers’ Employment Rights Claims at DOL, GAO–07–907 (Washington, D.C.: July 20, 2007). 5GAO, Office of Special Counsel Needs to Follow Structured Life Cycle Management Practices 

for Its Case Tracking System, GAO–07–318R (Washington, D.C.: Feb. 16, 2007).

RESPONSES TO POST-HEARING QUESTIONS FROM THE COMMITTEE TO GEORGE H. 

STALCUP, DIRECTOR, STRATEGIC ISSUES, GOVERNMENT ACCOUNTABILITY OFFICE

Dear Mr. Chairman:

On October 31, 2007, I testified before your committee at its hearing on a Federal 

sector demonstration project on servicemembers’ employment rights claims under 

the Uniformed Services Employment and Reemployment Act of 1994 (USERRA).1

The demonstration project established by the Veterans Benefits Improvement Act 

of 2004 was set to conclude on September 30, 2007, but through a series of extensions continued through December 31, 2007.2 Following the hearing, we met with 

key members of your staff to provide our perspectives on pending legislation to 

amend USERRA.3 As discussed with your staff, the following responses to post-hearing questions, which GAO received on May 8, 2008, reflect the current situation. Because the demonstration project ended on December 31, 2007, two questions are no 

longer relevant. 

RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. DANIEL K. AKAKA TO

GEORGE H. STALCUP, GOVERNMENT ACCOUNTABILITY OFFICE

Question 1. You note in your testimony that DOL and OSC use two different models to investigate Federal USERRA claims. Were you able to determine whether 

these two different models produce different results in terms of the accuracy of the 

findings? 

Response. No. The objectives of our July report on the Federal sector demonstration project were to (1) describe DOL’s and OSC’s policies and procedures for processing Federal employees’ USERRA claims under the demonstration project; (2) 

identify the number of Federal employees’ USERRA claims that DOL and OSC received during the demonstration project and the outcomes of these claims, including 

average processing times; and (3) identify changes to Federal employees’ USERRA 

claims’ processing since the demonstration project began.4 An independent assessment of the accuracy of agency findings on such cases is not typically our role. 

Question 2. I understand that you found the reliability of data at both DOL and 

OSC was in question and that this could affect Congress’ ability to assess how well 

Federal USERRA claims are processed and what changes are needed. I understand 

that at DOL you found an overstatement in the number of claims and problems 

with case closure. Please expand briefly on the problems with the data at OSC. 

Response. At OSC, we found that the corrective action data element, which OSC 

uses to describe the outcomes of USERRA claims, was not sufficiently reliable for 

reporting specific outcomes of claims. In an earlier report,5 we assessed the reliability of selected data elements in OSC’s case tracking system for USERRA claims 

by comparing them to the source case files. Specifically, we compared electronic data 

for 11 selected data elements (out of 90 unique data elements) in OSC’s database, 

OSC 2000, to the source case files for 158 randomly selected closed cases received 

from October 1, 2004 through March 31, 2006. In that report, we assessed reliability 

by the amount of agreement between the data in OSC 2000 and the source case 

files. For the corrective action data element, we are 95 percent confident that as 

many as 24 percent of the outcomes would not match between the case tracking system and the source case files. 

Question 3. I thank you for articulating so well the potential benefits and limitations of extending the pilot project. Do you believe that an additional review could 

evaluate the effectiveness of the actions DOL is taking to correct the deficiencies 

you identified in the July report? 

Response. As part of our on-going work, we follow up with audited entities to determine the extent to which our recommendations have been implemented. In my 

written statement, I reported on the status of DOL’s efforts to correct the defiVerDate 0ct 09 2002 15:24 Jun 09, 2008 Jkt 000000 PO 00000 Frm 00024 Fmt 6633 Sfmt 6621 H:\PS41451\DOCS\41385.TXT SENVETS PsN: PAULIN
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ciencies we identified in our July report. We will continue to follow-up on these efforts. In addition, as we discussed with your staff after the hearing, we could be 

asked to review DOL’s efforts after DOL has been afforded sufficient time to address 

the deficiencies we identified and a sufficient quantity of data has accrued upon 

which to base an analysis. We are happy to work with your staff in determining 

the appropriate amount of time for DOL to address deficiencies and accrue data. 

Question 4. You state in your testimony that ‘‘given adequate time and resources, 

an evaluation of the extended demonstration project could be designed and tailored 

to provide information to inform Congressional decisionmaking.’’ Would you be willing to work with the Committee to design this evaluation? 

Response. As stated in the introduction above, this question is no longer relevant. 

Question 5. In your opinion, do you believe there is anything to be gained from 

extending the demonstration project or do you think we have learned all that there 

is or at least all that can be learned about the investigation and resolution process 

in order to make a decision on jurisdiction? 

Response. As stated in the introduction above, this question is no longer relevant. 

RESPONSE TO WRITTEN QUESTION SUBMITTED BY HON. JON TESTER TO GEORGE H. 

STALCUP, GOVERNMENT ACCOUNTABILITY OFFICE

Question. You indicated in your statement that the data GAO received was ‘‘poor.’’ 

Can you elaborate on that statement? Why was it poor? What could be done to ensure that future data is of a higher quality? 

Response. Describing the quality of the data ‘‘poor’’ refers to our findings that 

data for reporting outcomes were not sufficiently reliable at both DOL and OSC and 

that data on the number of claims and the time to investigate claims was not sufficiently reliable at DOL. 

As we state in our testimony, at OSC, we found that the corrective action data 

element, which OSC uses to describe the outcomes of USERRA claims, was not sufficiently reliable for reporting specific outcomes of claims. At DOL, we found that 

the closed code, which DOL’s Veterans’ Employment Training Service (VETS) uses 

to describe the outcomes of USERRA claims, was not sufficiently reliable for reporting specific outcomes of claims. At DOL, concerning the number of Federal employees’ USERRA claims received for investigation, we found that for February 8, 2005, 

through September 30, 2006, VETS received a total of 166 unique claims, although 

202 claims were recorded opened in VETS’s database. Duplicate, reopened, and 

transferred claims accounted for most of this difference. Additionally, during our review of a random sample of VETS’s case files to assess the reliability of VETS’s 

data, we found the dates recorded for case closure in VETS’s database were not reliable; that is, VETS’s database did not reflect the dates on the closure letters, which 

VETS uses to indicate completion of the investigation, in over 40 percent of sampled 

claims. VETS uses the date recorded for case closure in its database to report to 

Congress on the number and percentage of claims it closes within 90, 120, and 365 

days. 

To ensure that accurate information on USERRA claims’ processing is available 

to DOL and to Congress, we recommended that VETS establish a plan of intended 

actions with target dates for implementing internal controls to ensure that VETS’s 

database accurately reflects: the number of unique USERRA claims filed annually 

against Federal executive branch agencies; the dates those claims were closed; and 

the outcomes of those claims. We also recommended that VETS incorporate into its 

USERRA Operations Manual previously issued guidance on the appropriate date to 

use for case closure in VETS’s USERRA database. 

As discussed at the hearing, at a time when the Nation’s attention is focused on 

those who serve our country, it is important that employment and reemployment 

rights are protected for Federal servicemembers who leave their employment to perform military or other uniformed service. We remain available to discuss the above 

questions and related issues with your staff. For additional information, please contact me.

Chairman AKAKA. Thank you very much, and I want to thank 

you for articulating so well the potential benefits and limitations. 

Do you believe that additional GAO review could evaluate the effectiveness of the actions DOL is taking to correct the deficiencies? 

Mr. STALCUP. Yes, I do. 

Chairman AKAKA. You stated in your testimony given adequate 

time and resources, an evaluation of the expanded demonstration 

22

project could be designed and tailored to provide information to respond to Congressional decisionmaking. Would you be willing to 

work with the Committee to design this evaluation? 

Mr. STALCUP. Absolutely, Mr. Chairman. We believe there are 

some proxies out there that could be used to provide some measurement of what is being done and we would be more than happy 

to work with your staff, your counterparts in the House, and figure 

out what a meaningful set of those proxies would be in making 

those assessments. 

Chairman AKAKA. You note in your testimony that DOL and 

OSC use two different models to investigate Federal USERRA 

claims. Were you able to determine whether these two different 

models produced different results in terms of the accuracy of the 

findings? 

Mr. STALCUP. Well, the fact is, Mr. Chairman, we did not look 

at or try to assess the determinations made on these cases. It is 

not GAO’s role to come in and actually second-guess what agencies 

have decided in terms of legal determinations. What we have done 

obviously is to look at the quality of the data and there are other 

things out there that we could take an additional look at, and I 

think with those things collectively be helpful to those that are 

making the decision in Congress as to which way to go. 

Chairman AKAKA. I understand that you found the reliability of 

data at both DOL and OSC was in question and that this could affect Congress’s ability to assess how well Federal USERRA claims 

are processed and what changes are needed. I understand that at 

DOL, you found an old statement in the number of claims and 

problems with case closure. Please expand briefly on the problems 

with the data at OSC. 

Mr. STALCUP. Sure. At OSC, the problems with data manifested 

themselves in a couple of areas. First of all, in the database the 

DOL uses to report information to the Congress, the number of 

cases in there reflected 202 cases. In looking at those cases, we determined that there were duplications, there were closed cases that 

had been reopened, and there were cases that had been transferred 

that should not have been included in that total. In fact, the total 

was 166. 

We also found problems in closed dates in the system where we 

tried to match the date on the letter that actually went to the 

claimant and the dates in the systems. In 40 percent of the cases 

they did not agree, and for those that did not agree, the difference 

was typically about 60 days. 

Chairman AKAKA. Thank you very much, Mr. Stalcup. 

Now I would like to turn it over to the Ranking Member, Senator 

Burr, for his questions. 

Senator BURR. Thank you, Mr. Chairman. 

You noted in your testimony if the demonstration project were 

extended, Congress should seek clear objectives. What are those 

clear objectives? 

Mr. STALCUP. Well, we have talked about that and we have a set 

of eight or ten factors that we think could all lend themselves collectively to being framed in terms of objectives and that would provide a basis for us or someone to come in at a later time and look 

at those and make an assessment, including whether or not the 

23

data problems, which are very problematic, I think cleaning up of 

those data objectives would greatly facilitate such an assessment. 

But we would be glad to work with your staff, your counterparts 

in the House to come up with a meaningful set of those objectives 

that could be used and relied on. 

Senator BURR. Mr. Stalcup, you said the current demonstration 

project is not specific in terms of the objectives to be achieved. 

Share with me, if you will, how does GAO go in and assess a demonstration program that didn’t have clear objectives. 

Mr. STALCUP. Well, that is the point I think we tried to make in 

our statement, that without those clear objectives, it was difficult. 

If there is nothing to measure against, then it puts us in a tough 

situation. 

Senator BURR. But I am trying to get you a little further to share 

with us, what is it you were looking for? What is it that you used 

without having some end point that the demonstration project was 

trying to prove? 

Mr. STALCUP. Well, we met with Members of this Committee’s 

staff, and Members on the House staff from the get-go. Some of the 

things we found early on, together with those staff Members, is 

that the processes of the two places were, in fact, different. I think 

there was some thinking when the demonstration project was laid 

out that we would end up at a point where we would have two comparable sets of data—two comparable sets of operations that we 

could compare. Unfortunately, it became evident early on that because of the differences in those operations, in addition to the data 

problems, that we really had an ‘‘apples and oranges’’ kind of thing 

and so it became difficult to make those comparisons. 

So what we did was we focused on the data quality issues. We 

focused on the notification of claimants issues in agreement with 

Members of your staff, and that is what we have reported on. 

Senator BURR. How does one assess where we go to from here? 

I mean, clearly, I have looked at your report, heard your testimony. 

The volume of cases taken matched with the number of people 

working on it and the average length of days, if I had no involvement in it, I would look at it and say, this is ludicrous. I am not 

sure I would be specific in any one area. It doesn’t work. It is not 

working. What do we need to do? 

Mr. STALCUP. Well, we need to clean up the data problems and 

that is first and foremost. And we believe, based on what we have 

been told by DOL, that they are well on their way to doing that. 

But, without good data not only can it become difficult for us to 

perform that assessment, it makes it difficult for the agency to 

manage their case files, and to know where they stand, and to report to Congress. 

Senator BURR. Do you think it would help at all if veterans were 

given options earlier—requesting referral to Office of Special Counsel at the beginning or sooner in the process? 

Mr. STALCUP. That probably is a question that may be better answered by those two organizations: OSC and the Department of 

Labor. I think there are some factors you need to think about. If 

you start offering options to veterans as to where they are going 

to go at what point in time, that could create a scenario of some 

unintended consequences, such as them shopping for the right reVerDate 0ct 09 2002 15:24 Jun 09, 2008 Jkt 000000 PO 00000 Frm 00027 Fmt 6633 Sfmt 6601 H:\PS41451\DOCS\41385.TXT SENVETS PsN: PAULIN
24

sult for them, maybe even the agencies being prone to going out 

and advertising what they can do for the veterans. So I think it is 

something to consider. I think we need to be cautious. 

Senator BURR. Well, I hear what you are saying. I sit here frustrated a little bit, because we will hear from them and we will hear 

from private attorneys, as well, that are an option today for individuals to seek. I sit here with a firm belief they shouldn’t have 

to use that option, that we should have a system that works. So 

it is somewhat frustrating to this Member, because I think what 

you have designed for me is a cultural problem. 

I want to be fair to the Department of Labor, and I will be. They 

are making progress, and I am hopeful that they are because I 

think this can be done a lot more efficiently and a lot more effectively than clearly what I have seen, but more importantly, it displays to me just how bad it is from the standpoint of GAO is usually very specific in what they have gone in and assessed. And 

though I think what you did was an excellent review, I am used 

to reading through a GAO report and having a clear indication as 

to what we should be looking for. Clearly you couldn’t come to that 

conclusion. And the data is so confusing that until you sort out the 

data, it is hard to figure out what the next step is. Am I accurate 

in that? 

Mr. STALCUP. You are, Senator Burr, and I understand where 

you are coming from on that. It was an issue that we dealt with 

throughout, not only amongst ourselves, but with the staff of the 

Committee in sorting through those things. Yes. 

Senator BURR. I thank you very much. I thank you, Mr. Chairman. 

Chairman AKAKA. Thank you very much, Senator Burr. 

Before I call on Senator Tester, in hearing Senator Burr’s questions, you made a statement here that for GAO in January, all 

claims will be reviewed. You also mentioned that there were 202 

claims and that OSC had 269 claims. My brief question is, in January, you are going to review all claims. What will happen for you 

to do that? 

Mr. STALCUP. Thank you, Mr. Chairman. The point that we 

make in the statement is that beginning in January, according to 

the Department of Labor officials, they will institute an internal review process that will look at all investigation outcomes before 

those outcomes are sent to the claimant in a letter. This is one area 

where we were able to look at both agencies and kind-of do a comparison. The Office of Special Counsel had a very rigorous review 

of all claim outcomes before the letters were sent. The Department 

of Labor agreed with us in terms of that finding and have moved 

to create an internal review process that they tell us will begin in 

January. 

Chairman AKAKA. Senator Tester? 

Senator TESTER. Thank you, Mr. Chairman. 

Were you able to tell to what extent the managers in the Federal 

Government were trained to comply with USERRA? 

Mr. STALCUP. Managers in both organizations receive some training. I do believe the Department of Labor clearly, after some of the 

points we made, became aware of some of those points. Additional 

25

training has been designed and was initiated in August—two 

months ago. 

Senator TESTER. What about the agencies that were having the 

problem that the DOL and the OSC were—in other words, what I 

am talking about is an agency like the Department of Agriculture, 

Department of Commerce, those kind of agencies. Were you able to 

tell if there were folks within the agencies that were trained? 

Mr. STALCUP. That was not part of our review, Senator. 

Senator TESTER. You talked about the data a lot with Senator 

Burr and that it was inadequate or just flat bad. Why? What is the 

reason for that? Who is the culprit here? Was it inadequate knowledge of what should be gathered or was it bad bookkeeping? Why 

is the data so bad? 

Mr. STALCUP. A couple things come into play. Probably first and 

foremost is the fact that the guidance in the USERRA manual in 

terms of how to process, when to notify, et cetera, was not very 

clear. They have made changes. There are updates to that policy 

manual in process and that revised policy manual is due out also 

in January. 

Senator TESTER. Who is responsible for the USERRA manual? 

Mr. STALCUP. This manual that I am referring to now is the one 

at Department of Labor. 

Senator TESTER. OK. Have you done or did you know of any—

investigation is a poor word, but has anybody taken a look at 

whether the private sector has as many problems as the public sector as far as granting the rights of returning veterans? 

Mr. STALCUP. Haven’t done that work, sir. 

Senator TESTER. And are you aware of any work that has been 

done in that realm? 

Mr. STALCUP. No. But I can probe a little bit when I go back and 

if there is, I will let you know. 

Senator TESTER. It would be interesting to know, just to see if 

it is very similar to what you found out——

Mr. STALCUP. Absolutely. 

Senator TESTER [continuing]. As far as what was going on there. 

Thank you for being here. I appreciate your testimony. I look forward to the second and third panel. Thank you. 

Chairman AKAKA. Thank you very much, Senator Tester. 

I want to thank you very much, Mr. Stalcup. This hearing, of 

course, is very focused and I want to thank you for helping us as 

much as you have in trying to address this. Again, I want to say 

thank you for your testimony, your presence, and all your help. 

Mr. STALCUP. I appreciate the opportunity. Thank you very 

much, Mr. Chairman and Members. 

Chairman AKAKA. Thank you. 

And now I would like to introduce our second panel. First, we 

will hear Charles Ciccolella, the Assistant Secretary for Veterans’ 

Employment and Training, U.S. Department of Labor. Second, we 

will have the Honorable Jim Byrne, Deputy Special Counsel, U.S. 

Office of Special Counsel. Mr. Byrne is accompanied by Patrick 

Boulay, Chief of the USERRA Unit. 

They are here today to share their thoughts and recommendations with the Committee as well as to make their cases as to why 

26

they are the appropriate agency to have jurisdiction of the Federal 

sector claims. 

Now we will hear first from Hon. Charles Ciccolella. 

STATEMENT OF CHARLES C. CICCOLELLA, ASSISTANT SECRETARY FOR VETERANS’ EMPLOYMENT AND TRAINING, U.S. 

DEPARTMENT OF LABOR 

Mr. CICCOLELLA. Thank you, Mr. Chairman. Good morning, Senator Burr, Senator Tester. Thank you very much for the opportunity to testify on behalf of the Department of Labor concerning 

USERRA, the Uniformed Services Employment and Reemployment 

Rights Act. 

As the Committee knows, the USERRA law protects the job 

rights of veterans and Members of the Armed Forces, including the 

National Guard and Reserve. The law also prohibits discrimination 

due to military obligations and it provides reemployment rights to 

our servicemembers when they return from their military duty. 

The Department of Labor administers this law. The Department 

of Labor’s Veterans’ Employment and Training Service conducts 

outreach and education for employers and servicemembers—the 

employers include the Federal Government—and investigates complaints by servicemembers and veterans. 

To accomplish this mission, we work very closely with the Department of Defense’s Employer Support of the Guard and Reserve. 

We also work very closely with the Department of Justice and the 

Office of Special Counsel when we are unable to resolve complaints 

and they are referred for representation and enforcement. 

Since 2001, we have done many things to make USERRA more 

effective. New regulations spell out in common language the employers’ obligations and the employees’ rights. The new rules make 

it easier to understand the law and actually help the employer understand how to deal with typical issues that may arise when the 

employees are called to military duty. We have introduced online 

complaint filing through our USERRA Electronic Advisor and that 

helps our users better understand not only the law, but also if they 

have a USERRA violation, how to make the complaint, because it 

walks them right through it. Forty-three percent of the complaints 

that we get where we do an investigation actually come from online, and that is up from 31 percent last year. 

Employers are now required to post a USERRA notice to their 

employees, thanks to the wisdom of the Congress which dictated 

that, and VETS has also stepped up our training for USERRA investigators. We have also designated senior investigators. I think 

Mr. Stalcup alluded to some of the duties of those individuals because they now review all of our cases that are done by our line 

investigators. 

Our investigators take their work very seriously and we vigorously investigate complaints and we make every effort to bring employers into compliance. We do this through a network of over 100 

trained investigators who are located in every State and territory. 

These same individuals investigate complaints of veterans’ preference and they conduct extensive, continuous USERRA education 

and outreach to employers. 

27

When we are unable to bring employers into compliance and resolve complaints, we work with the servicemembers to assist in 

having their case referred to Justice if it is the case of a private 

employer or a State or local government, or the Office of Special 

Counsel in the case of Federal employees. We have excellent working relationships with both of these enforcement agencies. 

This hearing is about the OSC–VETS demonstration project. It 

is a multi-year demonstration where roughly half of the Federal 

sector USERRA cases are investigated by OSC and the other half 

are investigated by VETS. I think the demonstration has had some 

very positive results. The agencies have cross-trained, and in particular, OSC has been very helpful in teaching us about prohibited 

personnel practices. In addition, our two agencies meet by phone 

or in person monthly to discuss USERRA issues in the Federal 

Government. So the working relationships are very, very good. 

The Government Accountability Office, as Mr. Stalcup just talked 

about, recently concluded their review of the VETS demonstration 

and recommended that VETS improve procedures to ensure that 

the claimants are advised of their right to have their case referred 

to OSC or to DOJ. The GAO recommended that VETS develop 

some internal mechanisms for unresolved claims before VETS notifies the claimant that their case will be closed. GAO also recommended that VETS put into place internal controls to ensure 

that our database and our reporting are more accurate with regard 

to case closure dates and the outcomes of these claims. 

As mentioned before, we are addressing each of these recommendations. Our staff has received new instructions on notifying 

claimants of their referral rights. We have incorporated these instructions into our operations manual that comes out in January 

and we conduct pretty regular training on this now. We also conduct investigator conference calls to discuss proper investigative 

procedures and reinforce them. 

We are developing some distance learning programs for our investigators and we have corrected the problem of duplicate cases. 

I would be happy to talk about that in the question and answer period. 

As I mentioned, I do believe the demonstration has had positive 

results. I also believe the demonstration has served its purpose and 

should be terminated. As a result of our USERRA training, the 

OSC–VETS demonstration project and the GAO review, I believe 

VETS is better positioned than ever to handle the Federal sector 

USERRA cases. We already handle 95 percent of all USERRA 

cases. The GAO found that VETS investigates or resolves these 

cases faster than OSC. Mr. Stalcup talked about that earlier. We 

resolve 95 percent of the Federal sector cases without having those 

cases go to OSC for referral. 

I believe we have the knowledge, skill, and experience. Our staff 

has years of experience. They are all veterans and they know 

USERRA and they know how to resolve the cases. With our presence in every State, we are more likely to go face-to-face with an 

employer, which is really the best way to find out and collect your 

evidence. 

Our approach is always to protect the veterans’ employment 

rights and to get their jobs back while making sure that there is 

28

a good relationship between the employer and the employee, so the 

employee has a place to come back to. We not only protect 

servicemembers’ USERRA rights, we also protect their veterans’ 

preference, we provide transition employment assistance to all 

servicemembers before they leave the military, and we have veterans’ employment representatives in the workforce who do job 

counseling and job referral and job placement. So, we are there to 

ensure not only their employment and reemployment rights, but we 

are also there to make sure that, in any event, their employment 

needs are taken care of. 

Finally, I would just say that I believe that the second-level review of USERRA cases is very important. If VETS investigates a 

complaint and we are unable to resolve the complaint, then that 

complaint can be referred to OSC and the veteran will receive a 

second review of the complaint. I think this is very important. But, 

it is not happening in the cases that OSC is now investigating. 

I want to thank you for the opportunity to appear before you 

today and I would be pleased to respond to your questions. 

[The prepared statement of Mr. Ciccolella follows:]

PREPARED STATEMENT OF HON. CHARLES S. CICCOLELLA, ASSISTANT SECRETARY FOR

VETERANS’ EMPLOYMENT AND TRAINING, U.S. DEPARTMENT OF LABOR

Chairman Akaka and Ranking Member Burr, and distinguished Members of the 

Committee:

I am pleased to appear before you today to discuss issues relating to the Uniformed Services Employment and Reemployment Right Act (USERRA) program. 

The principal programs and services of the Department of Labor’s (DOL) Veterans’ Employment and Training Service (VETS) focus on three areas:

• Providing employment services for veterans in America’s publicly funded Workforce Investment System (One-Stop Career Services) 

• Providing transition assistance for separating military members 

• Protecting servicemembers’ employment rights


41385.001
29

I will focus today on protecting servicemembers’ employment rights under 

USERRA. 

THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT

USERRA protects the public and private sector civilian job rights and benefits of 

veterans and members of the armed forces, including National Guard and Reserve 

members. USERRA also prohibits employer discrimination due to military obligations and provides reemployment rights to returning servicemembers. VETS not 

only investigates complaints by servicemembers and veterans, it also administers a 

comprehensive outreach, education, and technical assistance program here in the 

United States and around the world. 

VETS works closely with the Department of Defense’s (DOD) Office of the Assistant Secretary for Reserve Affairs and Employer Support of the Guard and Reserve 

(ESGR) to ensure that servicemembers are briefed on their USERRA rights before 

and after they are mobilized. We conduct continuous USERRA outreach and education to inform servicemembers and employers on their rights and responsibilities 

under the law. Since most complaints result from a misunderstanding of the 

USERRA obligations and rights, we took an important step in 2005 to make it easier to understand the law by promulgating clear, easy-to-understand regulations in 

question and answer format. VETS has provided USERRA assistance to over 

480,000 servicemembers, employers and others. 

We have also made it easier for a servicemember to determine if he or she has 

a valid complaint and if so, to file a USERRA complaint online through our interactive USERRA elaws Advisor, which provides the user with information on eligibility and rights and responsibilities under the law. The Advisor is available 24 

hours a day, 7 days a week, at www.dol.gov/elaws/userra.htm.

We vigorously investigate complaints, and when employers do not comply with the 

law, we make every effort to bring them into compliance. We do this through a network of over 100 highly trained investigators located throughout the Nation who investigate claims of violations of USERRA and Veterans’ Preference. These same individuals also conduct extensive compliance assistance outreach to employers and 

servicemembers in their states. 

VETS coordinates with ESGR, the Office of Special Counsel (OSC), and the Department of Justice (DOJ) to ensure the employment rights and benefits for returning servicemembers are protected. As explained in their statement provided for this 

hearing, ESGR engages in a number of efforts to ensure employer support for the 

Guard and Reserve is sustained. ESGR also reinforces the relationship between employers and employees through informal USERRA mediation. DOJ and the OSC 

help enforce USERRA by representing USERRA complainants when the Department of Labor is unable to resolve the complaint and/or when the servicemember 

or veteran requests their case be referred. 

VETS has a decades-long history of protecting the rights and interests of American service men and women employed in both the public and private sectors by investigating complaints under USERRA and its predecessor laws. Complaints under 

USERRA peaked in 1991 following mobilizations for Operation Desert Storm, when 

claims topped 2,500. After 9/11, USERRA complaints rose again, from approximately 900 per year to approximately 1,500 in fiscal year 2004 and fiscal year 2006. 

Complaints in fiscal year 2007 decreased to 1,400. As the chart below shows, complaints during the Global War on Terror have never approached their Desert Storm 

high. We attribute much of this result to VETS’ comprehensive outreach to 

servicemembers and employers and to the agency’s user-friendly 2005 regulations.

30

DEMONSTRATION PROJECT WITH THE OFFICE OF SPECIAL COUNSEL (OSC)

In 2004, Congress passed the Veterans Benefits Improvement Act (VBIA). Section 

214 of that Act required the Secretary of Labor and the OSC to carry out a multiyear demonstration project under which USERRA claims made by Federal Government employees whose social security number ends in an odd-numbered digit are 

referred to OSC for investigation, resolution and enforcement. The Government Accountability Office (GAO) evaluated the demonstration project and published the report of its evaluation in July of this year. The demonstration project was to conclude 

at the end of September 2007, but the current Continuing Resolution extended the 

demonstration project through November 16, 2007. 

Since inception of the pilot on February 8, 2005 through the end of fiscal year 

2007, VETS received 3,792 USERRA complaints. Of those, 614 (16.2 percent) were 

Federal cases that were subject to the demonstration. VETS transferred 288 of those 

Federal cases to OSC under the demonstration.

The demonstration project has produced several positive effects. VETS worked 

closely with OSC throughout the project to improve our investigators’ ability to idenVerDate 0ct 09 2002 15:24 Jun 09, 2008 Jkt 000000 PO 00000 Frm 00034 Fmt 6633 Sfmt 6621 H:\PS41451\DOCS\41385.TXT SENVETS PsN: PAULIN

41385.002 41385.003
31

tify potential ‘‘mixed cases,’’ which are USERRA cases that may also include related 

prohibited personnel practices under the Federal civil service laws. VETS also 

spurred closer ties by convening monthly meetings in which DOL and OSC officials 

discuss and resolve USERRA issues. In addition, VETS is addressing several data 

collection practices that GAO identified in its study of the demonstration project. 

Recently, there has been discussion about whether to continue the demonstration 

project. We believe that the Department of Labor is better positioned than ever before to serve the needs of all veterans, including those who work in the Federal sector. We also believe that splitting USERRA claims between the two agencies is not 

in the best interests of veterans. 

First, VETS should continue to investigate all USERRA claims, Federal or nonFederal, because we are a veterans-focused agency whose sole mission is to serve 

the workplace needs of separating servicemembers and veterans. We accomplish our 

mission through a nation-wide network of highly skilled Federal employees who are 

employment specialists. Almost all are veterans themselves. They are trained to 

meet the many workplace employment needs of today’s servicemembers. 

VETS’ Federal employment specialists are located where veterans need them 

most—in all 50 states, the District of Columbia, and Puerto Rico. These specialists 

conduct outreach and provide technical assistance to employers, servicemembers, 

veterans, and veterans’ organizations on employment and reemployment issues at 

the national, state and local levels, including at locations where servicemembers are 

demobilized. One frequently overlooked fact is that the vast majority of reemployment rights problems are resolved by VETS before a USERRA claim is ever filed. 

This is done at the local level through direct informal technical assistance that helps 

returning servicemembers secure their employment and reemployment rights in accordance with the law. 

Finally, the objectives of the demonstration project were to determine whether 

transferring USERRA cases involving Federal employers to OSC would result in 

‘‘improved services to servicemembers and veterans’’ or ‘‘reduced or eliminated duplication of effort and unintended delays in resolving meritorious claims.’’ To our 

knowledge, neither result has been realized. 

VETS is proud of its record in enforcing this statute since its enactment, including 

its continuous efforts to improve services. For example, over the past 101⁄2 years:

• 91 percent of Federal USERRA cases were resolved by VETS without need for 

referral to the Office of Special Counsel; • 83 percent of ‘‘meritorious’’ Federal USERRA cases resolved by VETS (claims 

granted or settled) reached resolution within 90 days.

I believe that the USERRA protections of servicemembers and veterans are best 

served by VETS retaining the primary investigative authority for all USERRA 

cases, regardless of employer. 

RECOMMENDATIONS OF GAO’S REPORT ON DOL/OSC DEMONSTRATION PROJECT

GAO’s Report (GAO–07–907, July 2007) that evaluated the demonstration project 

recommended that VETS institute improved procedures to ensure claimants are notified of their right to have their case referred to OSC, if a Federal case, or to the 

Department of Justice, if a nonFederal case, and that our investigators undergo 

mandatory training on those procedures. The report also recommended that VETS 

develop and implement an internal review mechanism for all unresolved claims before claimants are notified of determinations and cases are closed, to help ensure 

adherence to procedures and standards. Finally, GAO recommended that VETS implement internal controls to ensure that our investigations database accurately reflects the number of unique claims, the dates that these claims were closed and the 

outcomes of the claims. 

VETS is actively addressing the issues raised in GAO’s Report. VETS has taken 

positive steps to address each of these recommendations. For example:

• VETS investigative staff received new instructions on notifying claimants of 

their right to referral and on recording the appropriate closure date for a claim. 

• These instructions have been incorporated into the revised USERRA Operations 

Manual, which will be field-tested in November and fully implemented in January 

2008. The new manual will also clarify procedures for documenting case outcomes 

and recording them correctly in the VETS investigative database. 

• VETS investigators have all participated in mandatory conference calls reinforcing procedures for notifying claimants of their right to referral. In addition, regional investigator training is being conducted in each of the VETS regions and this 

training will also focus on these notification procedures. 

• VETS is developing an on-line distance learning module for investigators that 

will include this instruction. 

32

• VETS has already identified ways to correct previous reporting practices that 

resulted in duplicate cases being reported. We are working with GAO to ensure that 

issues identified by GAO surrounding duplicate cases are addressed.

In sum, the demonstration project has proved valuable to VETS. We have institutionalized a close working relationship with OSC that will continue to pay 6 dividends long after the project comes to an end. In addition, GAO’s audit identified 

several areas in which our investigations and reporting could be improved and, as 

mentioned, we are now addressing those areas. 

VETS is committed to continuous improvement of our USERRA investigative 

processes and our reporting to Congress on investigations. As a result of that commitment, we have made a number of investments to our USERRA program, and 

more are planned. An investment in VETS’ USERRA program is an investment in 

protecting the employment rights of all servicemembers and veterans covered under 

USERRA, regardless of whether their employer is the Federal Government, a state 

or local government, or a private entity. 

For these reasons and others I have already highlighted, we believe all USERRA 

investigations should be conducted by VETS. 

PROTECTING JOBS FOR CARETAKERS OF WOUNDED WARRIORS

The Committee also asked me to address the issue of providing employment protections to family members of injured servicemembers. 

On March 6, 2007, President Bush issued an executive order establishing the 

President’s Commission on Care for America’s Returning Wounded Warriors ‘‘to provide a comprehensive review of the care provided to America’s returning Global War 

on Terror service men and women from the time they leave the battlefield through 

their return to civilian life.’’ Former Senator Bob Dole and former Secretary of 

Health and Human Services Donna Shalala co-chaired the Commission. On July 30, 

2007, the Commission transmitted its report to the President, entitled Serve, Support, Simplify: Report of the President’s Commission on Care for America’s Returning Wounded Warriors (the Report). 

The Report recommended amending the Family and Medical Leave Act (the 

FMLA) to allow up to 6 months of leave for a family member of a servicemember 

who has a combat-related injury. The Administration strongly supports the Commission’s recommendation to provide leave and believes that it should be implemented 

promptly. However, some modification is necessary to address the mobile nature of 

military families. 

First, in this situation, we believe that it is more helpful to utilize the FMLA as 

a starting point rather than amend the law because of practical difficulties that 

would make it difficult to achieve the necessary protections for military families. 

The statutory provisions on the duration of leave, the serious health conditions that 

entitle an employee to leave, and the procedures for certification of health conditions 

that are central to the FMLA may not provide the most appropriate structure for 

effectuating the Commission’s recommendation. 

We believe that it is more appropriate to create a new statute with a new leave 

concept based at least in part on the FMLA, but with several important adjustments. Second, although the Commission indicated that the leave should be available to employees who meet the FMLA’s ‘‘other eligibility requirements,’’ it does not 

appear that the Commission considered the unique hardship that the FMLA eligibility requirements would impose on families of servicemembers. 

For example, the FMLA limits eligibility for job-protected leave to employees who 

have been employed by their employer for at least 12 months and who have worked 

at least 1,250 hours for their employer in the preceding 12-month period. Congress 

gave careful consideration to establishing those eligibility requirements when it enacted the FMLA. But because military families, and more specifically the spouses 

and children of servicemembers, often move from one city to another every few years 

as the servicemember receives new assignments, a significant number of family 

members of combat-wounded servicemembers would not be eligible for leave under 

the FMLA under the statute’s prior service requirements. 

The Department does not believe that the Commission intended to exclude those 

individuals from the job-protected leave addressed in its recommendation. 

With those concerns in mind, we believe that legislation implementing the Commission’s recommendation should be guided by the following principles:

1. Spouses, parents, and children of a recovering servicemember should be able 

to take up to 26 weeks of unpaid, job-protected leave to care for the servicemember 

within the 2 years following injury. 

2. Employees should be able to take the leave all at once or spread it out over 

time. 

33

3. Employers should continue to maintain any health coverage for the employee 

during the period of leave. 

4. Employees and employers should be able to substitute available paid leave for 

unpaid military caregiver leave. 

5. At the end of the leave, the employee should be entitled to be reinstated to the 

same position or an equivalent position. 

6. Caregivers should not have to be employed by an employer for 12 months or 

work 1,250 hours in the preceding year to be eligible for job-protected leave. 

7. Taking military caregiver leave should not diminish an employee’s right to 

take leave under the FMLA for other reasons, such as to care for a newborn baby 

or for an employee’s own serious health condition, subject to reasonable limits on 

the extent to which military caregiver leave and FMLA leave may be combined to 

care for a recovering servicemember.

The Administration has submitted ‘‘America’s Wounded Warrior Act’’ to the Congress in order to implement the recommendations of the Dole/Shalala Commission. 

Title III of this bill incorporates all of these principles and provides a new form of 

leave for family members to care for their wounded or injured servicemember with 

a combat-related serious injury, disability, or physical disability. I would urge the 

Congress to pass this legislation. 

Our Nation owes an enormous debt of gratitude to our servicemembers who are 

returning from their service in the Global War on Terror. The Department of Labor 

is committed to maximizing employment opportunities and protecting servicemembers’ jobs as they answer the Nation’s call to duty. We have a special obligation 

to those who are seriously wounded, ill, or injured, and to their families.

Thank you for the opportunity to be with you today. I am prepared to respond 

to your questions. 

POST-HEARING QUESTIONS SUBMITTED BY HON. DANIEL K. AKAKA TO

CHARLES S. CICCOLELLA, DEPARTMENT OF LABOR

Question 1. This first question is for both DOL and OSC Our final witness this 

morning, Mr. Mathew Tully, an attorney specializing in U-Sarah law, will testify 

that he believes that the federal government could save hundreds of millions of dollars by abolishing DOL involvement in U-Sarah enforcement and mandating the 

award of attorney’s fees and litigation costs when a claimant successfully proves a 

case of discrimination or retaliation. Please comment on that view. 

Question 2. GAO found that there were problems with the consistent notification 

to claimants of their rights to pursue their claims through OSC or through the 

Merit Systems Protection Board. It is my understanding that you have begun to 

take steps to correct this situation. Please update the Committee on where you are 

in terms of mandatory training of VETS personnel on this issue? 

Question 3. What is the status of your plans to complete revision of your U-Sarah 

Operations Manual? 

Question 4. It is particularly troubling to me that the ‘‘closed code’’ used by VETS 

to describe the outcome of claims was found to be not sufficiently reliable by GAO 

What steps have you taken to improve the reliability of this data? 

Question 5. What are the merits of having all claims—both federal and non-federal—reviewed and processed by one entity versus the merits of having an agency 

with institutional experience with federal sector enforcement handle those claims? 

Question 6. What funding and staffing implications, if any, would there be if the 

federal sector claims were transferred to OSC? 

Question 7. I’m pleased to see some positive results flowing from the demonstration project—especially the closer collaboration and cooperation between OSC and 

DOL If the demonstration project is discontinued, will there still be interactions, 

such as monthly meetings, to drive this collaboration? 

Question 8. You cite that over the past 10 years, 83 percent of ‘‘meritorious’’ federal U-Sarah claims were resolved by VETS within 90 days. What percentage of 

claims filed does this represent? In other words, what percentage of claims were 

deemed to be without merit? 

Is there any record kept of those deemed to be without merit in order to track 

whether the claimant subsequently sought and received favorable judgment in a 

legal proceeding? 

34

RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. DANIEL K. AKAKA TO

CHARLES S. CICCOLELLA, DEPARTMENT OF LABOR

Dear Mr. Chairman: I write to respond to your letter requesting feedback on testimony provided by Mr. Mathew B. Tully at the October 31, 2007 hearing on the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). In 

his testimony, Mr. Tully raised a number of issues and made several recommendations. Mr. Tully’s fundamental concern is that the Department’s Veterans’ Employment and Training Service’s (VETS) enforcement of USERRA is a serious problem, 

which he proposes to fix largely by shifting enforcement from the Federal Government to private attorneys like himself. 

As an initial matter, a comparison of Mr. Tully’s firm’s USERRA caseload and 

success rates with that of the Federal Government is misleading. As Special Counsel 

Scott Bloch noted at the hearing, Mr. Tully and his firm specialize in a narrow class 

of cases in which servicemembers were denied military leave by their Federal employers before 2001. 

The Department of Labor has long believed that most military leave cases can be 

resolved quickly and efficiently at an administrative level because they do not, for 

the most part, involve complex employment issues. For this reason, VETS, the Office of the Special Counsel, the Office of Personnel Management, and the Department of Defense, have ensured that servicemembers are able to resolve their military leave cases through a streamlined administrative process, that in most cases, 

eliminates the need for a USERRA case to be opened at all. While individuals remain free to bypass this process and retain private attorneys, it is not clear that 

attorneys in these cases necessarily add value. See, e.g., Jacobsen v. Department of 

Justice, 103 MSPR 439, 442 note (MSPB Sept. 22, 2006) ($8700 in attorneys fees 

denied where attorney obtained 16 hours of restored leave through litigation after 

the employing agency had determined that 20 hours of leave may have been charged 

incorrectly), aff’d 500 F.3d 1376 (Fed. Cir. 2007). 

I would also note that in contrast with the practice of most private law firms, 

VETS accepts all USERRA cases that it receives. This is true regardless of the complexity of the issue involved, the complaint’s relative merits, or the chances of success. Private law firms, on the other hand, can screen cases on many different levels, often avoiding the most difficult cases. A direct comparison between private law 

practices and public sector practices is not a valid comparison. Not only does Mr. 

Tully ignore this fact, he cites a particularly inapt proxy for VETS’ success rate: the 

percentage of cases VETS refers for prosecution. A more accurate figure, of course, 

would have been the percentage of claims that VETS receive that are resolved in 

the claimant’s favor. In fiscal year 2006, this figure was 30 percent, which was similar to the 27 percent rate claimed by OSC. 

Mr. Tully also offered statistics that present an incomplete picture of VETS’ 

USERRA caseload. He claims, for example, that his firm processed 1,802 claims between February 8, 2005 and September 30, 2006, and that VETS only handled 166 

cases during this time. However, the 166 VETS cases he cited were the Federal-sector cases VETS investigated during that period, not the total number of cases that 

VETS handled. A more complete picture would have noted that in addition to those 

Federal cases, VETS opened over 2,000 non-Federal cases during that period. Those 

cases were professionally investigated at no cost to the claimant, included all claims 

filed with VETS, not just those considered ‘‘winnable,’’ and involved multiple and 

complex employment issues, not simple cases of reinstating military leave to Federal 

employees. Furthermore, the claimants were informed of their right to pursue their 

case with a private attorney, if they so chose. 

The Department, of course, acknowledges the important role that the private bar 

plays in securing the reemployment and nondiscrimination rights of 

servicemembers. We have serious concerns, however, about any proposal that would 

eliminate the right of servicemembers to secure the type of valuable help that VETS 

has been providing for many decades at no cost to claimants. In addition to preparing cases for litigation, the Department of Labor has consistently sought to resolve USERRA issues and disputes quickly and efficiently at the lowest level possible, thereby preserving working relationships between employers and their employees. Claimants should retain the option of pursuing such resolutions rather than 

be forced to pursue relief through costly, adversarial and frequently hostile litigation. 

Thank you for your continued support of our Nation’s servicemen and women and 

for your interest in USERRA. I would be happy to meet with you or your staff to 

discuss any of Mr. Tully’s proposals in more detail.

35

Chairman AKAKA. Thank you very much, Mr. Ciccolella. Now we 

will hear from Hon. Jim Byrne. 

STATEMENT OF JIM BYRNE, DEPUTY SPECIAL COUNSEL, U.S. 

OFFICE OF SPECIAL COUNSEL; ACCOMPANIED BY PATRICK 

BOULAY, CHIEF, USERRA UNIT, U.S. OFFICE OF SPECIAL 

COUNSEL 

Mr. BYRNE. Thank you, Mr. Chairman. Chairman Akaka, Ranking Member Burr, Senator Tester, good morning. Thank you for the 

opportunity to testify on matters important to our servicemembers, 

their families, and our national security. My name is Jim Byrne 

and I am the Deputy Special Counsel for the U.S. Office of Special 

Counsel, OSC. I am joined here this morning by Patrick Boulay, 

Chief of the Office of Special Counsel unit that investigates and 

prosecutes violations of the Uniformed Services Employment and 

Reemployment Rights Act. 

It is our privilege to enforce USERRA. Both as Deputy Special 

Counsel and as a member of the United States Marine Corps Reserve, I am proud of our work to protect the employment rights of 

those who give of themselves for our country. 

USERRA expanded OSC’s role as the protector of the Federal 

Merit System and Federal workplace rights. The Department of 

Labor’s Veterans’ Employment and Training Services receives 

USERRA claims to investigate and attempt to resolve with employers. Cases that DOL–VETS cannot resolve may be referred to OSC 

at the servicemember’s request. We may then represent the claimant before the Merit Systems Protection Board and the U.S. Court 

of Appeals for the Federal Circuit. 

Three years ago, the USERRA demonstration project gave OSC 

exclusive investigative jurisdiction over certain Federal sector 

USERRA cases to determine if we could provide better service to 

Federal employees. Under the demonstration project, OSC investigates over half of the Federal employee cases as well as those in 

which the USERRA claim is related to a prohibited personnel practice under OSC’s jurisdiction. 

Our work has important achieved results. Servicemembers returning from active duty service have benefited from corrective actions we have obtained—back pay, promotions, restored benefits 

and seniority, time off, and case settlements. We have obtained corrective action in more than one-in-four USERRA claims. Our centralized process ensures USERRA claims are resolved efficiently, 

thoroughly, and correctly. In addition to obtaining corrective action 

for the claimant, OSC also seeks systemic corrective action to prevent future agency violations. We may help an agency modify its 

leave policy or provide USERRA training. 

OSC participated in the GAO demonstration project evaluations 

and their report came late, leaving Congress with little time to act 

before the project would end on September 30. We appreciate that 

Congress has extended the demonstration project in the fiscal year 

2008 Continuing Resolution. 

GAO’s report did not address the central question of the demonstration project: Are Federal sector USERRA claimants better 

served when they can make complaints directly to OSC for both investigation and litigation? We believe the answer is, ‘‘clearly yes.’’

36

Our specialized USERRA Unit is second to none and is uniquely 

suited to assist servicemembers with USERRA claims against Federal employers. OSC protects the Federal Merit System. Thus, our 

USERRA Unit attorneys and investigators are experts in Federal 

personnel law. They have years of experience investigating, analyzing, and resolving allegations of violations of Federal employment rights. Recently, Sam Wright, Reserve Retired Navy Captain, 

a nationally known USERRA expert, joined our office. He helped 

draft USERRA and has written and spoken extensively about the 

law. 

We are proud of our achievements. Since Scott Bloch became 

Special Counsel, we filed the first prosecutions by OSC in the law’s 

history, obtaining corrective action in cases that had been delayed 

for years. Cases that before took several years with no positive conclusion now routinely take OSC under a year to investigate and resolve favorably. 

Giving OSC exclusive jurisdiction over USERRA Federal sector 

claims would be doubly positive. DOL–VETS could focus on providing their best service to non-Federal USERRA claimants and 

Federal servicemembers would benefit from OSC’s specialized experience. 

More than 92,000 members of the National Guard and Reserve 

are currently mobilized. When they start demobilizing at a faster 

rate, will we see a spike in the number of USERRA claims? It is 

vital that government be fully ready to provide prompt and effective action on these claims. 

We believe there is adequate information today to support a decision by Congress to assign OSC the task of investigating and enforcing USERRA claims by Federal employees. OSC is ready. 

I look forward to your questions. 

[The prepared statement of Mr. Byrne follows:]

PREPARED STATEMENT OF JAMES BYRNE, DEPUTY SPECIAL COUNSEL,

U.S. OFFICE OF SPECIAL COUNSEL

Chairman Akaka, Ranking Member Burr, and Members of the Committee, good 

morning. Thank you for the opportunity to testify today on important matters of 

concern to our servicemembers, their families, and ultimately our national security. 

My name is Jim Byrne and I am Deputy Special Counsel of the U.S. Office of Special Counsel (OSC). I am joined today by Patrick Boulay, Chief of the Office of Special Counsel unit that investigates and prosecutes violations of the Uniformed Services Employment and Reemployment Rights Act. 

Thirteen years ago this month, Congress enacted and President Clinton signed 

into law the Uniformed Services Employment and Reemployment Rights Act of 

1994, or USERRA, a rewrite of the Veterans’ Reemployment Rights (VRR) law of 

1940. The VRR law served our Nation reasonably well for more than half a century, 

but over the years numerous piecemeal amendments and sometimes conflicting judicial constructions had made the law somewhat confusing and cumbersome. There 

were also some loopholes in the VRR law’s enforcement mechanism, especially as 

it applied to the Federal Government as a civilian employer. 

USERRA strengthened the enforcement mechanism for Federal employees by giving the Merit Systems Protection Board (MSPB) explicit jurisdiction to adjudicate 

allegations of USERRA violations by Federal executive agencies as employers. 

USERRA also provided, for the first time, for persons asserting reemployment rights 

against Federal agencies to have the assistance of OSC and the Department of Labor’s Veterans’ Employment and Training Service (DOL–VETS). 

Under section 4322 of USERRA, a person claiming a violation by any employer 

(Federal, state, local, or private sector) is permitted to make a written complaint 

to DOL–VETS, and that agency is required to investigate and to attempt to resolve 

the matter. If the DOL–VETS efforts do not result in resolution of the complaint, 

37

1 38 U.S.C. 4301(b) 

and the employer is a private employer or a state or political subdivision of a state, 

the matter may be referred to the Attorney General. If the employer is a Federal 

executive agency, it may be referred to OSC. 

The passage of USERRA expanded OSC’s role as protector of the Federal merit 

system and Federal workplace rights. However, it established a two-step process in 

which the DOL–VETS would receive all Federal and non-Federal sector USERRA 

claims, to investigate and attempt to resolve with employers. If DOL–VETS is unable to resolve a claim against a Federal employer, it is then referred to OSC at 

the servicemembers’ request, as DOL–VETS has no prosecutorial authority. 

When OSC is satisfied that the claimant is entitled to relief, we may exercise our 

prosecutorial authority to represent the claimant before the Merit Systems Protection Board (MSPB) and the U.S. Court of Appeals for the Federal Circuit, if necessary. In addition to obtaining corrective action for the claimant, in our role as protector of the merit system, OSC seeks ‘‘systemic’’ corrective action to prevent future 

violations by an agency. For example, we would assist an agency to modify its leave 

policy so it does not violate USERRA, or provide USERRA training to agency managers and H.R. specialists. 

Three years ago, with enactment of the Veterans Benefits Improvement Act of 

2004, a USERRA demonstration project was established as Congress sought to determine if OSC could provide better service to Federal employees filing USERRA 

claims. This gave OSC an opportunity to apply our extensive experience investigating and prosecuting Federal personnel laws to USERRA. It also eliminated (for 

some claims) the cumbersome, time-consuming ‘‘bifurcated’’ process whereby Federal 

USERRA claims often bounce around different Federal agencies before being resolved. 

Under the demonstration project, OSC has exclusive investigative jurisdiction 

over certain Federal-sector USERRA cases. While civilian employees of the Federal 

Government represent about 10 percent of the National Guard and Reserve, they 

file a disproportionately greater percentage of claims under USERRA. Considering 

that the law specifies that the Federal Government is supposed to be a ‘‘model’’ employer, this is a disturbing trend.1

Under this demonstration project, OSC investigates over half of the Federal employee cases (those cases in which the claimant has an odd Social Security Number 

plus the cases in which the claimant’s USERRA claim is related to a Prohibited Personnel Practice claim that is otherwise under OSC’s cognizance). The results speak 

for themselves: OSC has obtained corrective action for servicemembers in more than 

one in four USERRA claims filed with us. This is very high when you consider that 

the rate of positive findings and corrective action for governmental investigative 

agencies is usually well under 10 percent. Our centralized and straight-line process 

has ensured that the USERRA claims we receive are resolved efficiently, thoroughly, and, most important, correctly under the law. 

Servicemembers returning from Iraq or from other active duty service have benefited from numerous corrective actions we have obtained for them, including back 

pay, promotions, restored benefits and seniority, time off and case settlements that 

result in systemic change to make sure future violations of USERRA do not occur 

where they work. 

Congress directed the Comptroller General to evaluate the demonstration project 

and to provide a report to Congress not later than April 1, 2007. OSC participated 

in the evaluations conducted by the Government Accountability Office, but we were 

disappointed that their draft report was not available for review until mid-June, and 

the final report was published only a week before the congressional August recess. 

This left Congress with almost no opportunity to act on USERRA before the demonstration projected concluded on September 30th. We appreciate that Congress enacted an extension of the USERRA demonstration project in the FY2008 Continuing 

Resolution. 

Moreover, the GAO report did not address the central question that the demonstration project was intended to answer: are Federal sector USERRA claimants 

better served when they are permitted to make their complaints directly to OSC, 

for both investigation and litigation? We respectfully submit that the answer to that 

question is ‘‘clearly yes.’’

We of the U.S. Office of Special Counsel are privileged to be engaged in the enforcement of USERRA. Both as Deputy Special Counsel, and as a member of the 

U.S. Marine Corps Reserve, I am proud of the work we are doing to protect the employment rights of those who give of themselves for our national security. Our specialized USERRA unit is second to none. We employ members of the National Guard 

and reserve at OSC; four of our last six hires served in the military and are still 

38

2 It should be noted that 5 U.S.C. 2302(b)(11) makes it a prohibited personnel practice for any 

Federal supervisor or manager to take a personnel action forbidden by a veterans’ preference 

statute or to refuse to take an action required by a veterans’ preference statute. We believe that 

this includes USERRA. 

in the reserve. We also just recruited a nationally known USERRA expert, Sam 

Wright, a captain in the Navy Reserve, who helped draft the law and has written 

and spoken extensively about USERRA throughout his career. He can assist us not 

only in the prosecution of complex cases but also in outreach and public affairs aspects of our work for veterans and active members of the National Guard and Reserve. 

OSC is uniquely suited to assist members of the National Guard and Reserve 

who, upon their return from active duty, even from combat and with combat-related 

injuries, are turned away by their Federal employers, or not afforded the full protections or benefits to which they are entitled. Because the mission of OSC is to protect 

the Federal merit system, our USERRA unit is staffed with attorneys and investigators who are experts in Federal personnel law and have years of experience investigating, analyzing, and resolving allegations of violations of Federal employment 

rights.2 For this reason, Federal sector USERRA investigation and enforcement is 

a natural ‘‘fit’’ for OSC. 

We are proud of the achievements of the office. Since the advent of Scott Bloch’s 

administration of OSC, we have filed the first ever prosecutions by OSC in the law’s 

history, obtaining corrective action in many cases that had been delayed for years 

and had been essentially given up for lost. Take the case of an Army Corps of Engineers employee who was not reemployed after his active duty with the Air Force. 

After his case went unresolved elsewhere, OSC prosecuted the case before the 

MSPB and obtained full corrective action, including $85,000 in back pay, reemployment in his former position, and full restoration of benefits. Or, the case of the injured Iraq war veteran who returned from duty only to be sent home by his Federal 

employer because he could no long perform his former job. After OSC became involved, we convinced the agency to find him a suitable job consistent with his physical limitations and back pay for the time he was at home trying to figure out where 

to turn. 

Cases that before took several years to come to no positive conclusion now routinely take well under a year for OSC to investigate and resolve favorably. We are 

committed to getting as much relief as the law allows for our brave servicemembers, 

and doing so as quickly as possible. These patriots have given their all in the service 

of this great Nation. They should never be hung out to dry by a long, drawn-out, 

confusing process. OSC is passionate about obtaining relief for all who come to us, 

and no less for the soldiers of our country who also serve in the Federal civil service. 

Moreover, giving OSC exclusive jurisdiction over USERRA Federal sector claims 

would remove the burden from the Department of Labor Veterans Employment and 

Training Service to navigate Federal personnel law, freeing them to focus on providing their best service to USERRA claimants from the private sector and those 

in state and local governments. Thus, the benefit to servicemembers would be doubly positive—for Federal servicemembers who would benefit from OSC’s specialized 

experience, and for those private sector servicemembers who would benefit from 

greater attention to their claims at DOL–VETS. 

Today, America is in the middle of the largest sustained military deployment in 

thirty years. That deployment but is not limited to the approximately 200,000 

servicemembers in Iraq and Afghanistan at this moment. In recent years, the number of members of the National Guard and Reserve mobilized at one time peaked 

at more than 212,000. Last week, the Department of Defense reported that 92,971 

members of the National Guard and Reserve had been mobilized and were on active 

duty. It is when these servicemembers end their active duty that they may find they 

are no longer welcome to return to their civilian jobs and are eligible to file a claim 

under USERRA. 

Right now, with returning war vets a comparative trickle, USERRA claims are in 

the hundreds. What will happen if and when that trickle turns into a flood? Will 

we see a ‘‘spike’’ in the number of claims filed by returning servicemembers who 

have been turned away from their employers? Will the government demonstrate its 

support for our troops by being fully ready to provide prompt and effective action 

on these claims? 

We don’t know when they will start returning home in greater numbers, boosting 

demand for USERRA enforcement. We believe that adequate information has been 

developed to support a decision by Congress to assign the task of investigating and 

enforcing USERRA claims by Federal employees to OSC. We are poised to assume 

39

1 As a preliminary matter, GAO found that DOL’s case closure dates were not reliable and, 

as a result, GAO could not accurately determine an average case processing time, and had to 

estimate a range using only a limited ‘‘sample’’ of files (in contrast to OSC, where all files were 

included). Specifically, GAO found that the closure dates entered into DOL’s database did not 

match the dates on the closure notification letters to claimants in over 40 percent of the cases 

sampled (GAO Report 07–907, p. 4). 2 U.S. Special Counsel letter to GAO (George Stalcup) of December 19, 2006; Re: USERRA 

Demonstration Project (GAO Engagement Number 450458). 3GAO Report 07–907 (pages 17 & 35). 

this responsibility and to do our part in making their transition back to civilian life 

as smooth as possible.

Thank you for your attention and I look forward to your questions. 

RESPONSES TO POST-HEARING QUESTIONS SUBMITTED BY HON. DANIEL K. AKAKA TO

JIM BYRNE, DEPUTY SPECIAL COUNSEL, U.S. OFFICE OF SPECIAL COUNSEL

Question 1. The GAO found that DOL’s average processing time for a Federal USarah claim ranged from 53 to 86 days. OSC’s processing time WAS an average of 

115 days. To what do you attribute the considerably longer process at OSC? 

Response. There are several important factors to consider when comparing case 

processing times at OSC versus DOL:1

(a) ‘‘Administrative Closures:’’ This refers to cases over which OSC or DOL lacks 

jurisdiction, there is no bona fide USERRA allegation (i.e., the claimant mistakenly 

characterizes an allegation as falling under USERRA), there is no meaningful corrective action, the claimant mistakenly filed a complaint form or filed it multiple 

times (e.g., with electronic filing), etc. 

OSC, as a rule, does not open such cases, and instead endeavors to provide information to the claimant regarding other possible options for redress. OSC generally 

only opens cases for which it will conduct a thorough investigation and legal analysis, including collecting and reviewing documents, interviewing witnesses, etc. 

By contrast, DOL opens such cases, and then quickly, sometimes within minutes, 

hours, or days, ‘‘administratively’’ closed them. OSC received from DOL information 

indicating that, during roughly the same time period covered by the GAO report, 

DOL closed 13 percent of its Federal USERRA cases within 1 day, 22 percent in 

one-to-two days, and 34 percent within one week. This practice artificially, and significantly, lowers DOL’s case processing times. 

In a letter to GAO in December 2006, OSC outlined three examples of cases that 

appear to have been opened by servicemembers only to be closed administratively 

by VETS. This information was discovered by OSC on the USERRA Information 

Management System (UIMS) managed by VETS:

Example #1: Carlos XXXX opened USERRA claim #AL–2007–00009–30–V on 

November 14, 2006, at 2:52 p.m. and USERRA claim #AL–2007–00010–30–V on 

November 30, 2006, at 3 p.m. According to UIMS, however, on November 30, 

2006, at 3:12 p.m., VETS ‘‘resolved’’ and closed USERRA claim #AL–2007–00010–

30–V. 

Example #2: Charles XXXX opened USERRA claim #VA–2007–00009–30–V on 

November 14, 2006, at 2:30 p.m. Charles XXXX then opened USERRA Claim 

#VA–2007–00010–30–V on UIMS on November 14, 2006, at 2:34 p.m. According 

to UIMS, these claims were ‘‘resolved’’ and closed by VETS on November 14, 2006, 

at 2:46 p.m. and 2:47 p.m., respectively. Notwithstanding VETS closing of cases 

on UIMS, OSC received Charles XXXX’s USERRA claim from VETS on November 

14, 2006, and opened OSC file Number DP–07–0370. 

Example #3: Else XXXX opened USERRA claim #NC–2007–00001–30–G on October 31, 2006, at 1:55 p.m. According to UIMS, VETS resolved and closed the 

case on November 2, 2006 at 1:51 p.m.2

DOL continues to ‘‘administratively’’ close cases. In one recent example, DOL 

opened a case, discovered that OSC had jurisdiction over it, and ‘‘administratively’’ 

closed the case 3 days later and referred it to OSC. The GAO report briefly discussed related discrepancies between claims shown in the UIMS database, compared 

to the number processed, which included closed claims reopened as separate matters, duplicate filings and claims transferred to OSC after being opened in UIMS.3

(b) ‘‘Mixed’’ Claims: Under the Demonstration Project (DP), OSC receives all Federal USERRA claims where a Prohibited Personnel Practice (PPP) is also alleged 

(regardless of claimant’s Social Security Number). Approximately 20–25 percent of 

claims OSC received under the DP are these ‘‘mixed’’ claims. Because such claims 

involve more allegations and are generally more complex than USERRA-only claims, 

40

4GAO found that it took an average of 247 days, or over 8 months, for DOL to process such 

cases from beginning to end (GAO Report 07–907, p. 23). Only one such case was included in 

the 54 cases that GAO sampled to estimate a processing time ‘‘range’’ for DOL (GAO Report 

07–907, p. 37). 

and because of the statutory requirement for PPP claims that OSC notify the claimant of its preliminary determination and provide an opportunity to respond, ‘‘mixed’’ 

claims take longer to investigate and resolve than USERRA-only claims. As a result, 

OSC’s average case processing time is adversely affected when compared to DOL’s. 

(c) Time Counted Toward Case Closure: OSC’s understanding is that DOL counts 

only the days a case remains at VETS, not DOL as a whole, in determining the 

number of days it took to close a USERRA case. This practice ignores the significant 

amount of time a case might spend in DOL’s Regional Solicitor offices for legal review, which often can be several months.4 From the claimant’s perspective, the total 

amount of time it takes to resolve or refer his or her case, regardless of which DOL 

office has it, is the important factor. By contrast, OSC’s processing time is measured 

from the date OSC received the case until the date OSC notified the claimant in 

writing of the outcome. 

(d) Differing Responsibilities: If DOL-VETS cannot resolve a Federal sector 

USERRA claim, it may simply close the claim and ask the claimant whether he or 

she wants it referred to OSC for possible prosecution before the MSPB. OSC, however, must also decide whether to file such litigation before the MSPB, an additional 

responsibility that increases its overall case processing times.

For these reasons, the case processing times reported by GAO are not an accurate, 

or reliable, basis on which to compare how quickly OSC and DOL process Federal 

sector USERRA cases. Accordingly, OSC respectfully disagrees that its process is 

‘‘considerably longer’’ than DOL’s. Moreover, OSC believes that its investigations are 

more thorough, its conclusions more legally sound, and the outcomes that it 

achieves more favorable for servicemembers, all important factors that GAO did not 

address in its report, which did not assess the quality of claims investigations. As 

was emphasized to GAO in our response to the report, over one-in-four claims investigated and closed by OSC have resulted in full corrective action for the 

servicemember.

Question 2. During the demonstration project, OSC received six claims from DOL 

from claimants who requested referral of their claims. It is my understanding that 

in five of these cases OSC declined to represent the claimant. Of the claims that 

OSC processed during the demonstration project, how many claims did you agree 

to represent the claimant? 

Response. This presumably refers to the non-Demonstration Project cases discussed on page 23 of the GAO report (i.e., cases investigated, but not resolved, by 

DOL and referred to OSC, at the claimant’s request, for possible prosecution before 

the MSPB). It is important to note that such cases are referred by DOL to OSC at 

the claimant’s request, regardless of merit. Thus, many such cases are referred with 

a recommendation by DOL that OSC not represent the claimant before the MSPB. 

Nevertheless, of the four cases filed by OSC at the MSPB since 2004 in which OSC 

obtained full relief for the claimant, DOL recommended that OSC not represent the 

claimant in two of those cases. 

If OSC determines that a USERRA case is meritorious (i.e., there is sufficient evidence of a violation and the claimant is entitled to relief), OSC first requests that 

the Federal agency voluntarily take appropriate corrective action. OSC has had tremendous success in convincing agencies to do so, as evidenced by OSC’s greater 

than 25 percent corrective action rate during the Demonstration Project (i.e., OSC 

obtaining corrective action for claimants in more than one-in-four of the USERRA 

cases it has received under the DP). OSC attributes this success to its thorough investigations and legal analysis, ability to educate Federal agencies about their obligations under USERRA, and the credible threat of litigation illustrated by the four 

MSPB cases cited above. 

If an agency does not agree to OSC’s request in a timely manner, OSC will file 

litigation with the MSPB, not simply close the case and take no further action. Remarkably, OSC has yet to have to do so with any Demonstration Project cases, although there are several pending matters that OSC may file if agencies do not take 

the requested action. Thus, OSC has not formally represented any claimants before 

the MSPB in DP cases, but has represented claimants’ interests to Federal agencies 

in the approximately 25 percent of meritorious cases it has received under the DP. 

In this sense, OSC has ‘‘agreed to represent’’ the claimant in roughly one-in-four DP 

cases (i.e., where OSC would have represented the claimant before the MSPB, but 

41

did not have to do so because the agency voluntarily agreed to OSC’s request for 

corrective action).

Question 3. If the Congress were to give jurisdiction of Federal U-Sarah claims 

to OSC, what funding and staffing issues would you need to address and what 

would be an optimum time line needed for a smooth transition? 

Response. While OSC would need additional staff and resources over the long 

term to handle roughly double its current USERRA caseload, we have sufficient 

staffing flexibility and expertise in the short term to handle these cases immediately. In addition to the full-time USERRA Unit, which currently has nine attorneys and investigators, each of OSC’s four field offices has received USERRA training and is currently handling a limited number of cases. In the short term, these 

field offices could handle additional USERRA cases while additional staff members 

were recruited for the USERRA Unit. An estimate of specific budgetary needs for 

OSC to exercise jurisdiction over Federal USERRA claims in FY2008 is at 

Appendix A.

Question 4. This question is for both DOL and OSC: I am deeply concerned that 

individuals who are being sent to battle by the Federal Government are put in the 

position of having to do battle with that same government in order to regain their 

jobs when they return home. In your experience, can you think of any reason that 

the Federal Government (as an employer) would have any problems with complying 

with the law in this regard? Is it a matter of complexity, a matter of budget, or 

something else? 

Response. In OSC’s experience, while Federal agency managers and Human Resource (HR) specialist often have a general awareness of USERRA, they often do 

not understand the full extent of their responsibilities to Federal employees who 

serve in the military. For example, while it seems rare for a Federal agency to flatly 

refuse to reemploy a returning servicemember, it may not do so properly (e.g., by 

failing to place the person in the ‘‘escalator’’ position). Or, the agency may not fully 

carry out its obligations to injured servicemembers (e.g., by failing to seek placement assistance from OPM). OSC is striving to correct these deficiencies by providing USERRA training, written guidance to agencies on common issues (e.g., advance notice requirements, reemploying injured servicemembers), and speaking at 

national conferences and events attended by agency managers, attorneys, and HR 

specialists. Moreover, OSC provides live technical assistance to agencies through its 

telephonic and e-mail USERRA Hotlines, staffed by its team of USERRA experts. 

OSC also intends to extend its highly successful 5 U.S.C. Sec. 2302(c) certification 

program to include USERRA. Through these efforts, OSC is helping to educate Federal agencies about USERRA and prevent future violations.

Other factors that possibly contribute to USERRA violations by Federal agencies:

• The large proportion of Federal civilian employees who also serve in the military—according to DoD, about 25 percent of National Guard and Reserve members 

are civilian employees of the Federal Government. Federal employees generally 

have greater employment rights than private employees, and are possibly more 

aware of their rights. • The decentralized nature of large agencies accounting for a higher proportion 

of USERRA violations (e.g., U.S. Postal Service, Veterans Affairs). • USERRA can be demanding, as it should be, and is sometimes counter-intuitive 

or inconvenient for employers; thus, agencies may sometimes mistakenly believe 

their actions are not violating USERRA (e.g., refusing to hire a servicemember because he or she is about to be called up for military duty and cannot start work 

when the agency needs them). • There is a tendency in some members of management to disparage those who 

serve because it makes their jobs more difficult, they are possibly perceived as ‘‘getting special treatment’’ and not having to work some shifts when they are on military training duty when others have to work those weekend shifts, for example. 

This is anecdotal, but it appears to be the case in some situations OSC has encountered.

Question 5. In their testimony, GAO stated that, if OSC were given the authority 

to receive and investigate all Federal claims, a significant increase in the number 

of claims might necessitate a change to the oversight structure that you used during 

the demonstration project which relied heavily on the actions of one individual. 

Could you please comment on that concern? 

Response. OSC has superior persons with expertise and experience that will make 

such a restructuring unnecessary. The acting chief of the unit is highly experienced 

in OSC litigation and in USERRA and trained for a period of 2 years under the 

former chief. OSC hired a nationally known expert, Sam Wright, one of the ‘‘fathers 

of USERRA,’’ to work cases, perform outreach and serve as an adviser to the unit 

42

on complex matters. Few can claim to have his credibility on and knowledge of 

USERRA. OSC believes that its centralized approach has ensured timely, consistent, 

and most important, correct results in USERRA cases. If OSC were to receive all 

Federal USERRA claims, we would increase the number of investigators, attorneys 

and administrative support. Modifications to our organizational structure, adding 

deputy and team leader positions, would maintain centralization without dependency on the USERRA Unit Chief position. 

APPENDIX A

U.S. Office of Special Counsel.—Funding needed for OSC to handle all Federal USERRA cases 

Object Class Amount 

Percent of

Supplementary 

Request 

Salaries. The amount necessary to provide funding for approximately 16 FTE in fiscal 

year 2008 ............................................................................................................................ $1,602,000 62%

Benefits. The benefits required for the approximately 16 FTE .............................................. 417,000 16.1%

Travel. This includes approximately $60,000 in travel for investigations and approximately $24,000 in travel related to litigation ................................................................... 84,000 3.2%

Transportation. Courier services, contract mail service, and freight, required for general 

expenses and also for delivery between headquarters and field offices .......................... 3,000 0.1%

GSA Rent. Since OSC’s current space is fully occupied by its headquarters and Washington DC field office, a small but secure additional suite of offices should be used to 

house the unit ..................................................................................................................... 285,000 11.0%

Utilities and Communications. Communication costs related to local and long distance 

telephone services and Internet access make up the largest portion of this category ... 27,000 1.0%

Printing. Printing for USERRA related publications ............................................................... 2,000 0.0%

Other Services. Includes $21,000 in annual litigation related non-travel expenses. Also 

includes $20,000 in training. Also includes WestLaw, travel services, and miscellaneous services. Accounting and payroll services would be handled through OSC existing systems and incur no additional cost. Also included here are $30,000 in miscellaneous non-recurring expenses connected to starting the full USERRA office in its first 

year ...................................................................................................................................... 101,000 3.9%

Supplies and Materials. General supplies can include copier toner, printer toner, copy 

paper, bond paper, folders, files, binders, zip drives, whiteboards, business cards, 

subscriptions related to legal research, reference books, training materials, electronic 

subscriptions for access to data, water coolers, digital recorders, batteries, cassettes, 

disks, investigative supplies, and other supplies of all types .......................................... 10,000 0.4%

Equipment. Laptops and printers, telecom equipment, and network equipment. Includes 

cost of updating hardware and software by replacing a portion of obsolete equipment 

annually. Annual equipment replacement cost would be around $20,000. But in the 

first year of setting up a full USERRA office, there will be additional non-recurring 

equipment expenditures of $32,000 ................................................................................... 52,000 2.0%

TOTAL ....................................................................................................................................... $2,583,000 100.00%

Chairman AKAKA. Thank you very much, Mr. Byrne. 

I have a question for both Mr. Ciccolella and Mr. Byrne, and it 

is for DOL and OSC. I am deeply concerned that individuals who 

are being sent to battle by the Federal Government are put in the 

position of having to do battle with the same government in order 

to regain their jobs when they return home. In your experience, can 

you think of any reason that the Federal Government as an employer would have any problems with complying with the law in 

this regard? Is it a matter of complexity, a matter of budget, a matter of personnel, or is there another reason? Mr. Ciccolella? 

Mr. CICCOLELLA. Senator, there should be no reason ever where 

a servicemember goes off to duty and comes back to their Federal 

agency and doesn’t get their job back. That is not what usually 

happens. 

43

The cases today, USERRA cases, are very complex. It is not like 

there may be one issue in a USERRA case. In many situations, 

there are multiple issues. A lot of times, what you find with the 

Federal manager is that they don’t understand all the things that 

properly restore an individual to his or her duty position. They 

don’t understand the escalator principle, that when you leave, you 

are on an escalator, and if you are on Step 5 at the escalator when 

you leave and you would have been at Step 7, then when you come 

back, you have to be put into Step 7. If that requires training or 

anything else, the Federal manager, they have got to figure that 

out, how to do it. 

The cases are very complex. About half the cases that we do in 

the Federal Government are where the Federal hiring manager 

just doesn’t understand the law or the OPM regulations that spell 

out how to implement the law. So that is really what we are seeing 

more often than a servicemember who is just terminated, because 

that really doesn’t happen very often and there is a safety catch 

in this, and that is if that Federal agency is unable to place that 

individual back in his or her job, then it becomes the responsibility 

of the Office of Personnel Management to place that individual. 

So the Federal Government has been pretty good as a model employer. They do a lot of things for our servicemembers that the private sector doesn’t do. For example, when a servicemember leaves 

on active duty, goes on active duty, most Federal agencies continue 

that Federal health benefit. That is pretty expensive. Private employers don’t do that. And they not only pay the employer’s share 

of the health benefit, they pay the employee’s share. So 

servicemembers in most cases that get the TRICARE military benefit also get the health care that they had so there is no loss of coverage. Also, you can serve your probation period on active duty. 

That never happens in the private sector. 

So the Federal Government has done a reasonably decent job of 

being a model employer, but as I said, there are issues, there are 

problems. I believe a lot of the problems are because of the complexity of the issues and the multiple issues. 

And here is the other thing. It is not like these servicemembers 

are going to active duty for a year once. In many cases, these are 

multiple deployments and the frequency of those deployments, 

maybe in a 5-year period, some of our Federal employees have been 

gone for 21⁄2 or 3 years on active duty and that is hard. That is 

hard for Federal managers to manage. But that is also the law and 

that is why you have us and that is why you have Special Counsel, 

to make sure that they obey the law. 

I think I had better stop there. I could go on for a long time, but 

I think I had better just stop there. 

Chairman AKAKA. Mr. Byrne? 

Mr. BYRNE. Thank you, Senator, for that question. I agree with 

most everything that Mr. Ciccolella said. I would like to emphasize 

the whole awareness piece, which I think was sort of the core of 

your question, is that most of the cases that have come forward to 

us are a lack of awareness on the managers and sort of the H.R. 

departments within Federal agencies. And so I can speak on behalf 

of OSC that even during the demonstration project—and I am sure 

DOL has an outreach program, too, I am just not versed on it—

44

but even though it has just been a demonstration project for us, we 

have gone out and done extensive outreach, presentations to various agencies, the FDR Conference on Federal Employment Law 

just a couple months ago out in San Francisco where we put on a 

presentation to hundreds and hundreds of Federal managers and 

H.R. personnel. 

And what we plan on doing if we receive full jurisdiction of 

USERRA is to incorporate a certification process, which we do with 

other aspects of our office, the Hatch Act and the prohibited personnel practices, where we train up an agency to a certain level 

and they become certified, which is a requirement that they should 

do. And I submit probably Labor has something very similar. But 

we have postured to do all that, and I think awareness is key. 

I think this would be a good time to maybe put in the fact that 

hasn’t been brought out is that the awareness is the appearance 

that employers in the government have been innocent, just not 

being aware. I don’t believe that we have run into any cases yet 

where an employer has willfully discriminated against a veteran 

and fired them, or intentionally said, ‘‘I am tired of them being deployed. I am going to hold them back in the promotion cycle.’’ But, 

I pass on to this Committee that we don’t have any disciplinary action that we can take against an employer at this time and I would 

ask the Committee to consider that as they look at this legislation. 

Chairman AKAKA. Thank you. We will have a second round. May 

I call now on our Ranking Member for his questions. 

Senator BURR. Thank you, Mr. Chairman. I want to ask unanimous consent for additional questions to be in writing to the witnesses because I can assure you I am not going to have ample time 

with one or two rounds, I think, to sort this out in my own mind. 

I actually spent several hours going through the testimony and my 

thoughts last night and thought I understood this. I have learned 

in a short period this morning that I am more confused than I ever 

dreamed that I would be, and I am going to warn you, Chick, that 

I am going to come back to you because you said it is more difficult 

to do these investigations and I am going to ask you to walk me 

through a typical one. 

This demonstration project is focused on Federal agencies, and I 

sit here almost amazed that we have got these Federal guidelines 

and Federal agencies—I think one of you used ‘‘unaware,’’ that an 

H.R. person doesn’t fully understand exactly what the law says as 

it relates to this population of people. One, it makes me wonder 

who in the hell hired them. What qualifications did they have to 

serve in the capacity that they are in? If anybody ought to get this 

right, it ought to be the Federal Government, and if I were a private sector employer today and looked at the results within the 

Federal Government, I would say, why the hell are you coming 

after me? Why don’t you clean up your own house first? 

Now, we have gone through a Government Accountability Office 

study where, for the first time, and I am perplexed at it to some 

degree, that the Government Accountability Office couldn’t come in 

and distinguish black and white. There was a report that had a 

tremendous amount of gray and the reason was the inability to sort 

data or the inability to find the data that is needed to make the 

determination. 

45

I would love for both of you to share candidly with the Members 

of this Committee, how can Federal agencies butcher this so bad 

and force you to go through a lengthy process, and Chick specifically I will throw the first question to you. After a claimant requests referral to Office of Special Counsel, there are two additional layers of process that the Department of Labor goes through 

before the referral is made. Why and what purpose do those two 

layers serve? 

Mr. CICCOLELLA. I understand, Senator. It is a good question because the issue is why we go through that bureaucracy. 

First, I would just like to say I probably shouldn’t comment on 

who we hire in the Federal Government and what the qualifications are for those people in the Federal Government. I know there 

is some disappointment in the way some people behave in the Federal Government. I won’t comment, sir, on that. 

Senator BURR. We have that problem, too. 

Mr. CICCOLELLA. Yes. Well, everybody does, I guess. 

Can I just say, this is not—I understand where you are coming 

from, Senator. I really do. USERRA is a tough law. We enforce 

about 189 laws in the Department of Labor. This is the most employee-friendly law there is on the books. It leans toward the veteran, as well it should, because servicemembers should never be 

penalized for their military service. And that is why, since the 

1940’s, there has always been a law in place to make sure that 

servicemembers do get back their jobs. 

I agree with you. Investigations take long enough, because you 

have got to gather the evidence and you have got to confront the 

Federal hiring manager. But then if we find that the case has 

merit and we decide we are going to buck it over to the Counsel’s 

Office so that they can also investigate. Well, it has to go through 

a Regional Administrator. He looks at it from the point of view, ‘‘is 

it correct,’’ and that is a pretty good check. It only takes a couple 

of days, maybe, at most. 

But then it goes through our Solicitor. Labor has a lot of people 

up there in the Solicitor’s Office. Is that important? It is important. 

It is important to the Counsel’s Office and it is important to us because we want to make sure that the law has been properly interpreted. And so when we send a case over to the Special Counsel’s 

Office, that process takes place. 

I am not an attorney, so I don’t know all the things about what 

they look at, but I know the law pretty well. When we do send it 

over to Special Counsel, they are going to take a look at it. They 

do a very good job of reviewing it and they will also do an investigation. 

Now, there is a down side to that and I couldn’t agree more, because that is bureaucracy at work, and it takes a little bit of time. 

But there is sometimes an unintended advantage when that process takes place, because once it goes to a lawyer in our office, or 

if it goes over to Special Counsel, I can guarantee you that there 

is more attention paid to that complaint by the Federal hiring 

manager. So a lot of times, just having it up at our Solicitor’s Office 

or having it over with Jim’s folks over there at OSC, that case may 

be resolved en route to referral. 

So that is a long-winded answer, but——

46

Senator BURR. Well, let me——

Mr. CICCOLELLA [continuing]. It is sort of bureaucratic. But, if 

this doesn’t happen, you know, ‘‘wham, bam.’’ There is a process. 

I hate to say it, but you know, it has to work that way. 

Senator BURR. I want to commend you because I think you are 

trying extremely hard to sort this out, and I agree with you, it is 

extremely difficult. As is evidenced, it is becoming more difficult by 

the minute for me. 

Mr. CICCOLELLA. Yes, sir. 

Senator BURR. I want to give Jim an opportunity to respond to 

my point, but I also want to ask you, if the Federal hiring managers understood this, how much of what you are doing would go 

away? 

Mr. CICCOLELLA. Probably a lot more of it. I think you are always 

going to have some situations. Let us face it, if an individual is 

gone 3 years out of 5 years in a Federal agency, it is tough. I mean, 

my Chief of Staff went over to Iraq for a year. That is tough. You 

just gut it out. You put somebody else in the job temporarily. 

The outreach and education that Jim talked about is extremely 

important. One of the things we did 2 years ago is we have this 

Veterans Hiring Initiative which focuses on trying to hire disabled 

veterans, and there are streamlined authorities for doing that, direct appointments. Most of the Federal agencies don’t use them. So 

we talked to about 40 Federal agencies in person and then we 

talked to a bunch of others through various messaging. Now we are 

doing that in the Federal regions. And in those Veteran Hiring Initiatives Briefings, what we do is we make sure that we talk about 

USERRA. 

The other thing that is really good today is that we brief, or the 

Defense Department and the Staff Judge Advocates in the military 

brief, every servicemember when they are mobilized and when they 

are demobilized, which is more important, they are briefed on 

USERRA. So most servicemembers know how to make a complaint. 

Thanks to the good work that the Labor Department has done 

in the private sector and in the Federal Government, thanks to 

what OSC has done under Scott Bloch, because they have got a 

real interest in enforcing USERRA, and that is something to be absolutely admired and respected, they do a very good job, the employers do understand the law a lot better. But as I said, some of 

these cases are complex and it may not be just about the reinstatement. It may be how do we restore that servicemember’s pension 

benefits, or how do we restore the health care coverage? You know, 

there are gaps in restoring health care coverage after a 

servicemember comes back. We are trying to fix that now with a 

legislative fix, because they can continue their TRICARE when 

they come back and they may not reinstate their health care coverage right away. There is a hole there. 

So, you know, these are kind of complex situations and I do agree 

with you. I wish we could do it faster, and we should do it faster. 

We should eliminate as much bureaucracy if we can, and I believe 

in that. I believe in busting bureaucracy that doesn’t work really 

well. But there is a process and I think for legal purposes, especially if we have to send a case over to the Counsel, we have got 

to follow those procedures, sir. 

47

Senator BURR. Jim? 

Mr. BYRNE. Thank you, Senator. I think Labor would agree with 

us that we would all like to outreach or educate ourselves out of 

a job where we don’t have to face these. I think back to our outreach programs that we have with the Hatch Act, extensive programs, prohibited personnel practices, extensive outreach programs. But we are still in business. There are still plenty of violations and allegations that come forward. 

But I think we can all do a better job in educating the managers 

in HR, because I am frustrated that they don’t understand this 

basic principle, not only not understanding the law, but looking at 

it from just doing the right thing, which I think should be part of 

a test in an H.R. department or an executive or a manager. So I 

guess that is a little bit of my opinion on the side, not related to 

the law. 

But you had talked about some of the processings of the cases 

as they come in. If you are interested in some details, Mr. Boulay 

does this for a living day in and day out. He has his hands on every 

single case that comes into OSC. I guess that sort of leads into the 

fact that we are a small agency, 110 personnel, four field offices 

around the country. USERRA has nine personnel, seven attorneys, 

two investigators, and so we are lean, very lean and very efficient 

at what we do. And so we have that luxury of not having a big bureaucracy and so I think that really plays to our advantage in that 

regard. 

Mr. Ciccolella also talked about the complexity of some of the 

cases, and I think Mr. Boulay might be able to speak to that, also. 

A lot of times, the cases have prohibited personnel practices incorporated into them. So from our perspective at OSC, when a case 

comes in, it is not necessarily just a USERRA case. There could be 

a retaliation case mixed in or some other type of discrimination 

mixed in which is more difficult to investigate than a straightforward USERRA claim. So I want to just throw that in there, that 

it is complicated. To even confuse everybody even more, there are 

more matters. 

We are just really fortunate in our office, and I am hoping Mr. 

Boulay gets the chance to speak here, we have experts in this area, 

in Federal employment law. They do this for a living, prohibited 

personnel practices, Hatch Act, whistleblower disclosures. And so 

for us to do USERRA claims is a natural. 

Senator BURR. If the Chairman would indulge and my colleague, 

Senator Tester, could we hear from Mr. Boulay? 

Chairman AKAKA. [Nodding affirmatively.] 

Mr. BOULAY. Thank you. Just to pick up on what Mr. Ciccolella 

and Mr. Byrne said, I would agree. Generally speaking, I think 

what we see is that Federal agencies, Federal managers have a 

general understanding of USERRA but don’t know the full extent 

of what is required, and that is where these cases become more 

challenging and that is why a big part of our approach is even if 

a case may not have merit for the individual, that we work very 

hard to educate the Federal managers and the H.R. specialists in 

the full extent of their responsibilities both under the USERRA 

statute and under the OPM regulations that have some additional 

requirements, such as making sure there is a mechanism to conVerDate 0ct 09 2002 15:24 Jun 09, 2008 Jkt 000000 PO 00000 Frm 00051 Fmt 6633 Sfmt 6601 H:\PS41451\DOCS\41385.TXT SENVETS PsN: PAULIN
48

sider servicemembers for promotions while they are absent due to 

military service. 

Because our approach is centralized at OSC, we have the ability 

to spot where cases come in and go out through me, through the 

USERRA Unit Chief, we are able to spot trends and issues that 

come up. In fact, two have come up in particular, and I think Mr. 

Ciccolella referenced this, in agencies’ obligations with regard to injured servicemembers, the steps they need to take up to and including getting OPM to provide placement assistance if they can’t 

find a job for the servicemember, and also advance notice requirements for military leave. We have standard letters that we provide 

to agencies and to H.R. specialists that detail these issues. 

As Mr. Byrne alluded to, under the prohibited personnel practices, there is a requirement that heads of agencies educate their 

employees about civil service laws, rules, and regulations and that 

they comply with that, and we have a certification program that 

they can become certified that they are complying with that provision and we would like to extend that to USERRA if we get the 

work, so that we would have an agency certify to us that they have 

provided training, posted information and things of that nature for 

USERRA to ensure that they comply. 

Now, as far as just to make it clear, cases under the referral 

process, which is nondemonstration project cases, there is this process whereby VETS investigates and then has several stages of review where they send it from their local office to their regional office and then to the regional solicitor and then finally to OSC if the 

claimant requests that. Now, under the demonstration project, 

those steps are eliminated because OSC gets the case from the beginning, we investigate it, we decide whether to prosecute. We have 

that authority. When we approach agencies in a meritorious case, 

they know that there is a credible threat of litigation. 

And as far as the need or the benefit added at VETS and Department of Labor to do these additional reviews, that is built into our 

process under the demonstration project. We have supervisory and 

legal review throughout the process, from the beginning of the end 

of the case. So there is no need, because we are centralized, to 

transfer it between offices. So I just want to point out that difference. 

And as far as cases that do get referred, while we do appreciate 

getting a summary or a memorandum of referral from the Department of Labor, we do a de novo review. We do not rely on those 

summaries to make our decision. It gives us a brief overview of the 

case, gets us up to speed, but we are evaluating the case ourselves 

fully, and we have had some instances where we have had disagreements, but we think as experts in the Federal sector that we 

should be making the final decision and doing, as I said, a de novo 

full review of every case. 

I just hope that is helpful to your questions. Thank you. 

Chairman AKAKA. Thank you very much, Senator Burr. 

Senator Tester? 

Senator TESTER. Mr. Chairman, thank you very much. I feel the 

same way Senator Burr does at this point in time. I have got so 

many questions, I don’t know if we have time to answer them all 

today, so we will start at the beginning. 

49

The process that I heard was a claim goes to DOL, then it goes 

to the Solicitor, and then it goes to OSC, is that fairly correct? 

Mr. CICCOLELLA. The investigative process—that would be the 

chain, yes. 

Senator TESTER. Does it occur anytime where it goes right 

straight to OSC, where the first two are eliminated? That does 

occur? It just depends on what the claimant wants? 

Mr. CICCOLELLA. Yes. Under the demonstration, half the cases go 

directly, and if the case involves, or we suspect it involves, a prohibited personnel practice, one of the 12 PPPs, then we send it to 

Special Counsel immediately. 

Senator TESTER. So, it still goes through your office, though? 

Mr. CICCOLELLA. Yes, sir. 

Senator TESTER. So they all go through your office initially? 

Mr. CICCOLELLA. Some come direct to OSC through their outreach, but most cases, I believe it is fair to say, come through the 

Veterans’ Employment and Training Service. 

Senator TESTER. That is cool. Mr. Boulay said that you, if I heard 

you right, you don’t use the previous reviews done by the DOL. You 

use your own? 

Mr. BOULAY. That is in non-demonstration project cases—cases 

that are referred from DOL to us—they provide a memorandum of 

referral after it goes through their multi-stage process. We do review those and use those as sort of a quick overview of the case, 

but we make our own decision and do our own review. 

Senator TESTER. Right. So you kind of read through them and set 

them to the side and do your own thing on that? I am not being 

critical. I just want to know the process. 

Mr. BOULAY. Yes. I mean, we do a full review of the case and 

the case file, and under the demonstration project, though, that 

process is not necessary because we get the cases directly. 

Senator TESTER. OK. Training—Mr. Boulay, you talked a little 

bit about the certification process. Does the OSC have a training 

regimen that they are doing at this point in time? I think that Mr. 

Byrne also talked about training, some training stuff. Do you guys 

have a training regimen that you are offering to agencies, or is it 

up to the agency to get a hold of you? How is it done? Either one 

can answer. 

Mr. BOULAY. If I could just go ahead, please. We have a formal 

outreach program, a training program, PowerPoint presentation——

Senator TESTER. Who initiates it? 

Mr. BOULAY. It is initiated by—in individual cases we often actually request it. We offer it in most cases based on, you know, if the 

agency seems to have a good handle on USERRA and there are no 

violations, we would not necessarily offer it. But even in a case 

where there was no individual liability, we offer that program to 

agencies. 

Senator TESTER. So the program offering happens most commonly when there is a problem with——

Mr. BOULAY. When there is a complaint, yes. 

Senator TESTER. When there is a complaint. DOL, is it the same? 

Do you guys have a training regimen that you offer in the Department for Federal agencies? 

50

Mr. CICCOLELLA. As I mentioned, 2 years ago we had our Disabled Veteran Hiring Initiative to go out physically and talk to 40 

agencies. We are now in the ten Federal regions talking to the Regional Executive Councils, so we will probably start that again on 

a cycle with the Federal agencies. 

Senator TESTER. OK. Mr. Byrne, you talked about having nine 

people dedicated to USERRA in the OSC, is that correct? 

Mr. BYRNE. Yes, sir, that is correct. 

Senator TESTER. And where is your office located? 

Mr. BYRNE. At 17th and M Street here in the District. 

Senator TESTER. So it is in D.C.? 

Mr. BYRNE. That is the headquarters, and we have three field offices that we actually have trained and utilize for some of our 

cases. 

Senator TESTER. OK. 

Mr. BYRNE. But they all go through centralized headquarters. 

Senator TESTER. In those field offices, are there additional personnel, or is that part of the nine? 

Mr. BYRNE. No, that is not part of the nine. That is additional 

personnel, correct. 

Senator TESTER. OK. So how many total personnel do you have 

in the OSC dedicated to USERRA? 

Mr. BYRNE. Dedicated is nine——

Senator TESTER. FTE. 

Mr. BYRNE. FTE would be nine, but depending on the surge and 

the number of cases, we push them out to the field offices under 

the supervision of Mr. Boulay. And we have four field offices with 

an average of about eight personnel. So that is our set core—nine—

but, we can surge way beyond that. So if you ask for an FTE, I 

could guess and say we are 13 or 14. 

Senator TESTER. How about the DOL? How many people do you 

have dedicated to USERRA? You said you had, what, a hundred investigators, is that correct, in every State and Territory? 

Mr. CICCOLELLA. Correct. That organization has 250 employees. 

About 115 are State Directors of Veterans’ Employment and Training or their assistant directors. 115 are trained USERRA investigators located in the 52 States and Territories. 

Senator TESTER. That is their job? 

Mr. CICCOLELLA. That is part of their job. That is not the only 

job they have. 

Senator TESTER. OK. How many claims do you receive per year 

at DOL? 

Mr. CICCOLELLA. Put it in perspective for you? 

Senator TESTER. Sure. 

Mr. CICCOLELLA. Before——

Senator TESTER. Let me back up my question. How many Federal claims do you receive per year, not the private claims, but the 

Federal claims? 

Mr. CICCOLELLA. There are approximately 200, and it differs 

each year, about 200 complaints with the Federal Government each 

year. 

Senator TESTER. And that is probably going to go up, as somebody said, with the potential for bringing the troops home. 

51

OSC, how many do you get that are not referred through the 

DOL first? 

Mr. BYRNE. Approximately 140 to 160, of which some of those 

also have the prohibited personnel practices mixed in with them. 

Senator TESTER. OK. But the initiation is USERRA claims? 

Mr. BYRNE. Correct. 

Senator TESTER. OK. Mr. Ciccolella, the previous witness said 

that the main problem that the GAO had was bad data, and I hope 

I don’t put words in his mouth, and the bad data was a direct response to an inadequate manual. And I said, whose responsibility 

was the USERRA manual and he said the DOL. Are you doing anything to fix that? That might be the second question. The first 

question is, do you have the same opinion as far as what makes 

databad? Is it the USERRA manual, and are you doing anything 

to fix it? 

Mr. CICCOLELLA. I have the same opinion that GAO does. 

I thought their review was very useful. 

Senator TESTER. OK. 

Mr. CICCOLELLA. The thing that has to be done is that more attention by our investigators has to be paid to recording the closure 

date of the case and making certain that the administration and 

procedural aspects of the case are properly attended to. I would 

just like to say for the record, that doesn’t necessarily speak to the 

quality of the case of those investigations. 

Senator TESTER. OK. Just a couple of side comments that—I 

have one more question for DOL. How many private cases, 

USERRA claims, do you guys deal with a year? 

Mr. CICCOLELLA. Sir, we are doing about 1,400 total cases a year. 

Of those, last year, 12 percent were Federal cases. 

Senator TESTER. OK. So you are doing 1,400 a year total, 12 percent—OK. I have got you. 

Mr. CICCOLELLA. Now, could I just clarify, sir——

Senator TESTER. Yes, go ahead. 

Mr. CICCOLELLA [continuing]. Because Jim is doing the same 

thing. You know, we get many more inquiries and provide many 

more assistance, technical assistance things to people, and you 

have to remember also that the Department of Defense has an 

agency that does informal mediation. 

Senator TESTER. Yes. 

Mr. CICCOLELLA. They do a lot of claims. So there are a lot more 

claims than just the 1,400. 

Senator TESTER. I have got you. So let us revert back a little bit. 

You said you have got somewhere between 160 and 200 Federal 

claims, if it is 12 percent of 1,400. 

Mr. CICCOLELLA. That would be about right. 

Senator TESTER. And what percentage of those do you pass on to 

OSC? 

Mr. CICCOLELLA. Well, under the demonstration, everyone with 

an odd Social Security number goes to OSC, so roughly 50 percent 

of those. So last year, it was 96, and this year so far it has been 

seven, and the total in the demonstration, I think somebody said 

269, but I think it is 289. 

52

Senator TESTER. OK. All right. Thank you very much. I appreciate your patience with the questions. I appreciate your testimony. 

Thank you. 

Chairman AKAKA. Thank you very much, Senator Tester. 

As you know, Senator Tester has many more questions to ask. 

What had intrigued me is a possible solution is the statement that 

was made by Mr. Boulay, who said that there was no need to 

transfer cases to another agency. It appears that there is a process, 

there are investigations, there are interpretations and decisions 

made and all of this takes time. And for it to go through three 

agencies takes all the time. So we really need to look at this. You 

have been helpful in trying to clarify this. 

Instead of asking a second round of questions, I ask Senator 

Tester whether he would agree that we would submit further questions in writing to you to answer. I have many questions to ask. 

Senator Tester? 

Senator TESTER. I would. I would just like to make a quick comment, if I may, Mr. Chairman——

Chairman AKAKA. Yes. 

Senator TESTER [continuing]. And that is that it appears to me 

preventive medicine here would be much better than what we are 

doing. We can have our own personal opinion, so I will just tell you 

mine. I think the Department of Labor ought to figure out a regimen for training the Federal agencies and make sure those agencies know what the heck is going on. And I think that you have 

the wherewithal to do that and I think you do the best job at it, 

quite frankly. I think it ought to be a requirement. Mr. Boulay 

talked about certifying the agencies to be able to comply with 

USERRA. I think you could do that. 

You know and I know it is complicated, and you guys are on the 

ground dealing with it on a daily basis and I am not, but it doesn’t 

appear to me that it has to be this complicated. It is pretty cut and 

dried as far as I am concerned. I think if you know the rules going 

in, your human resource director ought to be able to deal with it 

in a way that makes sense for the agency. 

I can’t help to think that a lot of the problems here are with people who, quite honestly, they would just as soon see go out the door 

than move up the ladder like what is supposed to happen in 

USERRA. But I think training is critically important and we will 

do that. 

Thank you, Mr. Chairman. 

Chairman AKAKA. Thank you very much, Senator Tester. 

I want to thank this panel for your testimonies and your responses, as well. I look forward to continuing to work with you. We 

will send you our submitted questions for the record and look forward to your responses. 

Mr. CICCOLELLA. Mr. Chairman, could I say one thing before we 

end here? I know you all appreciate this—that we do have two 

agencies doing these investigations, so you have two standards in 

place. So I want to say for the record that it is not about turf with 

me. My focus is on the best service for veterans. I think if GAO 

is going to do a review they look at, hopefully, the quality of the 

cases, so we are better informed in terms of making our decision. 

Congress and this Committee, in particular, intended that the proVerDate 0ct 09 2002 15:24 Jun 09, 2008 Jkt 000000 PO 00000 Frm 00056 Fmt 6633 Sfmt 6601 H:\PS41451\DOCS\41385.TXT SENVETS PsN: PAULIN
53

cedures for investigating USERRA cases would be the same procedures that are used in investigating veterans’ preference. They said 

that when the Veterans’ Employment Opportunity Act was passed, 

and it is in your report language. 

So I would ask that as the GAO takes a look at who should do 

these Federal sector USERRA cases, that whoever does them 

should probably also do the veterans’ preference cases. Because 

then your procedures are consistent, which is what Congress intended in their report language. 

Chairman AKAKA. Thank you. Mr. Byrne, do you have any closing remarks? 

Mr. BYRNE. Yes, sir. I would actually agree with what he just 

said. 

Chairman AKAKA. Mr. Boulay, do you have any closing remarks? 

Mr. BOULAY. Thank you again for the opportunity. I would just 

add, on veterans’ preference cases, that OSC currently enforces disciplinary action for veterans’ preference violations. So, we do have 

that expertise, as well, and we would be ready, willing, and able 

to take that on in addition to USERRA. Thank you. 

Chairman AKAKA. Thank you very much, panel two. Thank you. 

Mr. BYRNE. Thank you, Mr. Chairman. 

Chairman AKAKA. Now I would like to call forward our third and 

final witness. Matt Tully comes to us from Albany, New York on 

his way to his second deployment in the Middle East. He is currently a Major in the New York National Guard. In 2005, Mr. Tully 

was deployed to Iraq with the 42nd Infantry Division based in 

Tikrit and at Camp Victory in Baghdad. Mr. Tully has been awarded the Vice Chief of Staff of the Army Award for Excellence, Iraqi 

Campaign Medal, Global War on Terrorism Service Medal, Armed 

Forces Reserve Medal with mobilization device, and the National 

Defense Service Medal. Mr. Tully has firsthand knowledge of 

USERRA issues, both as a returning veteran and also as an attorney. 

Mr. Tully, I welcome you and your wife, Kelly, and your 9-

month-old son, Kevin, to this hearing. I thank you for traveling all 

this way to be here today and for sharing your story and thoughts 

with us this morning. I also want to thank both you and your family for the sacrifices you are making for our Country. I know it 

must be difficult for all of you at this time. So will you begin with 

your testimony. 

STATEMENT OF MATTHEW B. TULLY,

TULLY, RINCKEY AND ASSOCIATES, PLLC 

Mr. TULLY. Thank you, Mr. Chairman, and thank you, Senator, 

for allowing me to be here today to discuss USERRA. I gave a detailed written report to this Committee that outlines my experiences as a victim of USERRA discrimination at the hands of the 

Bureau of Prisons several times from 1999 to the present. As this 

Committee is aware, I have received a substantial judgment in my 

favor because of the discrimination that I was subjected to. 

The Office of Special Counsel had noted that they haven’t received any complaints pertaining to a willful violation of USERRA. 

My case is crystal clear. My supervisors testified under oath that 

they knew about USERRA and they decided to violate it because 

54

of budgetary issues. They were concerned that my departure was 

going to force the jail to require overtime and that they didn’t like 

that. 

In addition, I represent a U.S. Postal Service employee by the 

name of Richard Erickson. He is a Special Forces Sergeant Major 

in the Florida National Guard. He deployed to Afghanistan with 

the Florida National Guard and received a letter from the Postal 

Service stating that for the efficiency of the Service, the Postal 

Service was firing him from his position because the amount of 

time that he had taken was in excess of 5 years. Unfortunately for 

the Postal Service, there are a whole bunch of exceptions to the 5-

year rule in USERRA and call-ups to Afghanistan and Iraq are excluded. That matter is currently in litigation. 

There are numerous other cases that I can cite you of intentional 

violations by Federal employees of USERRA, and as the statistics 

that were in my written report show, my law firm handles many 

more USERRA violations than DOL–VETS and the Office of Special Counsel combined. During the GAO reported time period, we 

handled 1,802 complaints. The Office of Special Counsel handled 

approximately 269. The Department of Labor handled approximately 166. 

What I would point out, of that 1,802, we had a 73 corrective percentage rate. So what that means is out of that 1,802, 73 percent 

of those veterans got what they were asking for, versus the OSC 

had approximately a 25 percent rate. The DOL report said that 

only 7 percent was sent to prosecution, so it is unclear how many 

actually got what they were deserving. 

I believe that private attorneys offer the wham-bam fix here. I 

believe attorneys can turn these cases around in a matter of weeks. 

My law firm, from the time that we get a complaint from a 

servicemember, files court proceedings, whether it is in State court, 

Federal District Court, or before the Merit Systems Protection 

Board for Federal employees, within 3 weeks, versus the other 

agencies, as the GAO report talks about, just the investigative 

stage takes months. We actually are in court within 3 weeks. 

We take the overwhelming majority of our USERRA cases for 

free because USERRA allows for attorney’s fees to be awarded on 

top of any damages awarded to the servicemember. So if I am able 

to get Mr. Erickson his job back, he gets the back pay and benefits 

he is entitled to and then attorney’s fees are added on top of that. 

So the servicemember is not harmed in any way, shape, or form by 

having a private attorney. 

As a matter of fact, the servicemember is helped when they have 

severe cases, such as they are suspended, they are demoted, they 

are fired, and they need immediate action and they can’t wait for 

a year for DOL to investigate the case, only then to turn it over 

to OSC for prosecution of the case. They will come to us, we will 

file the case within 3 weeks. With the Merit Systems Protection 

Board, the cases are adjudicated within 120 days. So we could get 

the servicemember back into his job generally within 120 days, and 

that is the big selling point for our firm. That is one of the reasons 

why we have 1,802 clients during this time period and the other 

agencies combined have under 400. 

55

We have built a reputation around helping servicemembers. We 

have built this reputation around not charging servicemembers. In 

some cases, we do charge servicemembers who have farflung 

USERRA cases that we don’t think are winnable and we tell them, 

go to DOL, go to OSC. If they are insistent to keep our firm, we 

do charge a little bit of an up-front retainer because we only get 

our attorney’s fees paid by a Federal agency if we are successful. 

So the overwhelming majority of our cases, 99 percent, we don’t 

charge our clients a penny, and it is only that 1 percent where the 

case is borderline that we ask for some type of up-front money, 

goodwill money. 

So I think the right answer here, Mr. Chairman, is to change the 

attorney’s fee provision from discretionary, which is what it is right 

now, to mandatory, so that if a servicemember proves their claims, 

they are guaranteed attorney’s fees on top, because the private sector can do the job faster, better, and in a higher quality than the 

current Federal agencies have done. 

With that said, I believe the Office of Special Counsel during the 

short time period in which they had the availability to do USERRA 

cases did an outstanding job. I believe that their addition of Sam 

Wright, who is known as the Godfather of USERRA, the person 

that wrote USERRA, his addition to the Office of Special Counsel 

really shows the Office of Special Counsel’s commitment to doing 

the right thing. 

The Department of Labor VETS, I haven’t seen any changes. As 

a matter of fact, I would point out to you, Mr. Chairman, that we 

have represented several DOL–VETS employees who have alleged 

USERRA discrimination by DOL–VETS and those cases have been 

resolved under settlement agreements with confidentiality clauses, 

but the names and that type of information is available through 

the Merit Systems Protection Board. But I just find it astonishing 

when there were discussions here about training requirements that 

there would be allegations of USERRA violations with DOL–VETS. 

That concludes my statement and I am available for any questions that any Member on the Committee has. 

[The prepared statement of Mr. Tully follows:]

PREPARED STATEMENT OF MATHEW B. TULLY, TULLY, RINCKEY & ASSOCIATES, PLLC 

Mr. Chairman and distinguished Members of the Committee: I am honored to appear before you today to speak about my experiences with the Department of Labor, 

the Office of Special Counsel and the United States Department of Justice in regards to enforcing rights under the Uniform Services Employment and Reemployment Act (USERRA). I am pleased to be accompanied at today’s hearing by my wife, 

Kimberly Tully, and my 9-month-old son, Kevin Tully. 

To provide you with some background on me: From 1991 to 1995 I was enrolled 

in the Reserve Officer Training Corp (ROTC) at Hofstra University with my current 

law partner, Greg Rinckey. In May 1995, I was commissioned as a Second Lieutenant in the United States Army and I found myself unemployed while awaiting the 

Officer Basic Course. I applied for several law enforcement positions with the Federal Bureau of Prisons and I was hired by them on August 20, 1995. Shortly thereafter in early October 1995, I was activated to attend military schooling and remained on active duty until approximately April 1998. 

During the entire time that I was on active duty, I was placed on leave without 

pay status under USERRA by the Bureau of Prisons. Almost immediately upon my 

return from active duty I was subjected to intentional violations of USERRA by my 

superiors because of my military service. The discrimination varied from receiving 

poor performance evaluations during the time period that I was actually serving in 

the military, a period of time that I should not have even been rated or evaluated 

56

by the Bureau of Prisons, to being publicly ridiculed for making the Bureau of Prisons fill my position using overtime employees. 

In late 1999 and early 2000, I filed numerous complaints with the Merit Systems 

Protection Board against the Bureau of Prisons alleging violations of USERRA. I believe that it is important to point out that I consulted with Labor Law attorneys 

and other members of my military unit that also had employer issues and I was 

universally told not to waste my time dealing with the Department of Labor and 

to exercise my rights under USERRA and file my allegations of USERRA violations 

directly with the Merit Systems Protection Board (MSPB). Very shortly after I had 

filed my claims, the Bureau of Prisons conducted an internal investigation and I assume that they found merit to my allegations as they offered me a substantial cash 

settlement and paid leave to withdraw my allegations and resign from employment 

with the agency. 

At that time I had just enrolled in law school and the large sum of money that 

the Bureau of Prisons was offering me and the extended paid time off was too enticing to turn down so I entered into a settlement agreement with the agency, which 

contains a confidentiality clause that prevents me from discussing in further detail 

the specifics of the case. 

While out on extended paid leave pursuant to the settlement agreement, I began 

looking for other employment opportunities. Unfortunately, with not many employment prospects on the horizon, I sought a vacant position at another Bureau of Prisons institution in August of 2000. Shortly thereafter, I was hired by Morgan Stanley 

to work as a paralegal. In late 2000, I learned that the Bureau of Prisons employees 

at the institution at which I applied had learned of my prior protected USERRA activities and subsequently refused to process my application for employment with the 

Bureau of Prisons. 

While I did have a position with Morgan Stanley that complimented my attending 

night school at Brooklyn Law School, I was deeply disturbed that I was being subjected to further retaliation by the Bureau of Prisons only months after they had 

entered into a settlement agreement with me, which in my opinion reflected their 

implicit acknowledgement of supervisory employees violating USERRA. As a result, 

I filed another USERRA complaint against the Department of Justice alleging that 

my application for employment was not processed in retaliation for my prior protected USERRA activities. That case continued for many years. 

In the meantime, on September 11, 2001, my office on the 65th floor of the World 

Trade Centers came under attack. After September 11th, I served with the New 

York Army National Guard at Ground Zero for many weeks. In May 2002, I graduated from law school and subsequently passed the Bar Exam and was admitted 

to practice before the New York State Courts. 

In January 2003, I sold my cooperative apartment overlooking New York Harbor 

in New York City and moved with my wife Kimberly to our ski condo in upstate 

New York. It was at that point that I opened up a law firm out of the back bedroom 

of my house. Some of my earliest clients were colleagues from the Bureau of Prisons 

who asked me to represent them in employment matters to include: allegations of 

EEO violations, whistle blowing violations and disciplinary actions. 

In February 2004, my current law partner and long time friend, Greg Rinckey, 

returned from active duty and we entered into a law partnership together. Throughout 2004, the number of cases that we received from Federal employees dramatically 

increased to the point where we had to hire an associate and then several more associates to accommodate this increase in clients. In June of 2005, I received orders 

to report to Iraq with the 42nd Infantry Division. 

On July 30, 2007, I reported to Fort Drum, New York for deployment training and 

I was subsequently deployed to Iraq and served as the Division Chief of Operations. 

This deployment, as determined by the United States Small Business Administration, resulted in my law firm suffering financial losses in the amount of $173,000.00. 

The Small Business Administration offered to provide my firm with a Disaster Assistance Loan for that amount to help my firm recover from my deployment. In addition to the financial suffering that my firm and my family experienced because of 

my deployment, I was also injured and have subsequently been rated by the United 

States Department of Veterans Affairs to be 60 percent disabled. 

On March 21, 2007, nearly 7 years after I originally filed my complaint with the 

MSPB alleging that the Bureau of Prisons retaliated against me by failing to process my application for the position of Correctional Officer at the Metropolitan Detention Center in Brooklyn New York, the New York Regional Office of the MSPB 

awarded me nearly $300,000.00 in back pay. The Board also ordered the Bureau of 

Prisons to appoint me, effective August 22, 2002, to the position of Correctional Officer. The initial decision of the Board became final on April 5th, 2007, when neither 

I nor the Agency appealed. As of this date, The Bureau of Prisons has not reinstated 

57

me to the position of Correctional Officer, nor has it timely paid me the back pay, 

interest, and accrued leave that I am owed. In fact, tomorrow on November 1, 2007, 

I have been asked by the Bureau of Prisons to undergo a medical examination at 

their institution in Otisville, New York to determine if I am medically fit to perform 

the duties of Correctional Officer or another position within the Bureau of Prisons. 

I believe as evidenced by the MSPB’s decision in my favor awarding me substantial 

back pay as well as the original settlement agreement with the Bureau of Prisons 

in 2000 that all of my allegations of misconduct by Department of Justice officials 

have been vindicated. 

I would point out that Senator Specter, at my request, asked the Bureau of Prisons if any employee was ever disciplined for violating my rights under USERRA and 

Senator Specter’s office was informed by the Bureau of Prisons that despite the 

sworn admissions by Bureau of Prisons employees nobody was disciplined for any 

of the discrimination or retaliation that I was subjected to. Due to my personal experiences as a victim of USERRA discrimination as well as being a member of the 

New York Army National Guard and an Iraqi War Veteran, I have over the past 

several years built a considerable law practice, primarily representing others who 

have been victimized by their employers in violation of USERRA. 

FROM FEBRUARY 8TH, 2005 THRU DECEMBER 30TH, 2006

According to the U.S. Government Accountability Office, report number GAO–07–

907, during the time period February 8th, 2005 to September 30th, 2006 the Department of Labor investigated 166 allegations of USERRA discrimination by Federal 

employees. During that same time period, the Office of Special Counsel investigated 

269 allegations for USERRA discrimination. I would point out that during that time 

period my law firm not only investigated but prosecuted before the MSPB, a total 

of 1,802 cases. That represents more than 4 times the combined number of cases 

that the Department of Labor and the Office of Special Counsel handled during the 

same time period. 

I would point out that on page 9 of the GAO report it listed 189 employees with 

the Department of Labor who are responsible for investigating USERRA complaints, 

on page 16 of the GAO report the Department of Labor said only about 7 percent 

of those 166 cases were referred for prosecution, that means only approximately 12 

cases during the time period relevant to the GAO report was a DOL case actually 

prosecuted before the MSPB. By contrast, in a July 6th, 2007 response to the GAO 

report the Office of Special Counsel was proud of its 25 percent corrective rate, 

which translates into 67 times during the relevant time period that a Federal employee received corrective action from the Office of Special Counsel. 

I find these numbers to be astonishing, given my law firms experience with helping Federal employees win their USERRA claims before the MSPB. I would point 

out that of the 1,802 cases, that my firm investigated during the relevant time period our clients received the remedy that they were seeking in approximately 73 

percent of the cases. That translates into a success rate nearly 3 times that of the 

Office of Special Counsel and at the very least 10 times better than the Department 

of Labor. 

I would respectively point out that the GAO report referenced above does not provide any of the Committees that it reported to with the proper context of how a 

claim is investigated. Specifically, I would note that on page 38 of the report it admits that it did not contact any private law firm or attorneys that specialize in 

USERRA litigation. Had it contacted myself or the handful of others who concentrate their practice in USERRA enforcement they would have learned that very 

few servicemembers who believe that they are the victims of USERRA discrimination go to the Department of Labor. In my opinion, the Department of Labor has 

built a reputation over the last 13 years of poor investigative work, poor use of investigative tools such as, issuing of subpoenas and demanding sworn testimony by 

employers and non responsive investigators in addition to outrageously long processing times. 

I would further point out that the GAO report incorrectly shows figures describing 

how USERRA claims are processed. I note on page 8 of the report that it fails to 

list the retention of a private attorney for the investigation and prosecution of 

claims. I believe that it is important to point out to the Committee that private attorneys like myself and others within my firm handle many more cases per year 

than the Department of Labor, the Department of Justice, and the Office of Special 

Counsel combined. 

MY OPINION OF THE THREE WAYS TO PROCESS A USERRA COMPLAINT

A. Department of Labor

58

In my opinion the Department of Labor has proven time after time that they do 

not aggressively investigate allegations of USERRA discrimination or retaliation. 

This is evidenced by the low number of Reservists and National Guardsman who 

go to the Department of Labor for help. I find it obscene that the Department of 

Labor has 189 personnel assigned in various capacities to investigate USERRA violations and yet my firm consistently investigates more allegations of USERRA violations with an astronomically higher corrective rate. 

I think at this point the Members of this Committee and others on Capital Hill 

should consider abolishing this responsibility and shifting the resources going to 

DOL vets to the Department of Defense Employers Support of the Guard and Reserve (ESGR) who could handle all of the educational briefings that DOL Vets 

claims it does and to the Office of Special Counsel. In fact, as you will soon see in 

my solutions to this problem, I believe that the Federal Government over the next 

decade could save hundreds of millions of dollars by simply abolishing the Department of Labor’s involvement in USERRA enforcement and mandating the award of 

attorney’s fees and litigation costs when a victim successfully proves his or her case 

of discrimination or retaliation.

B. Office of Special Counsel

It is my opinion that the Office of Special Counsel has done a much better job 

at investigating and prosecuting violations of USERRA than the Department of 

Labor. Furthermore, it is my understanding in talking with several people who had 

their matters investigated by the Office of Special Counsel that they were treated 

in a professional and courteous manner. I would further point out that the Office 

of Special Counsel has taken great strides to improve its reputation, as recently as 

this month it retained Sam Wright as one of its attorneys. I consider Sam Wright, 

the Godfather of USERRA, my mentor, and my friend. I don’t believe that there is 

an attorney or for that matter any person on this planet who knows USERRA better 

than Sam Wright. I have no doubts that if the Office of Special Counsel is allowed 

to continue to investigate and prosecute USERRA claims that their reputation will 

grow, and that their processing time will be reduced and that their success rate will 

dramatically increase. 

As you will see in my solution to the problem, I believe it is critical for the Office 

of Special Counsel to have ‘‘Hatch Act’’ like powers to enforce USERRA.

C. Private Law Firms

Currently, my law firm is the largest law firm in the country that handles large 

numbers of USERRA cases. We handle USERRA cases not only against the Federal 

Government but against states and private employers. Our track record of success 

is well documented and has resulted in my law firm receiving on average 45 new 

USERRA allegations per week. My firm has also signed an agreement with the 

American Federation of Government Employees (AFGE) that will make us co-counsel over the next 4 years on approximately 10,000 new cases of USERRA discrimination pursuant to the United States Court of Appeals for the Federal Circuit’s new 

holding in Butterbaugh v. Department of Justice.

So that you can compare the Department of Labor, the Office of Special Counsel 

and private law firms like mine, I would reiterate that despite the dramatically 

higher number of cases that we investigated during the relevant time during the 

GAO report we had a dramatically higher success rate. I believe that this should 

clearly indicate to this Committee that the way to end discrimination against members of the National Guard and the Reserves is to look to private attorneys and not 

to Government entities. If this Committee wants to properly protect today’s National 

Guard and Reservist and ensure that USERRA is properly prosecuted and investigated it must not limit its research to just the Department of Labor and the Office 

of Special Counsel. It must consider the overwhelming success of persons who privately retain attorneys. 

THE SOLUTION

Not only am I going to provide this Committee with my opinions, my observations 

and my thoughts but I will also provide you with common sense solutions that I 

think will achieve Congress’ intent of making the Federal Government the model 

employer while also dramatically reducing the number of people discriminated 

against because of their military service. My solution is three fold:

1. Make attorney’s fees mandatory when a victim proves his/her allegations. 

2. Give USERRA teeth by allowing judges to award liquidated, compensatory and 

punitive damages. 

59

1See, 5 U.S.C. § 1221(g)(2); 5 U.S.C. § 3330c(b); 29 U.S.C. § 626; 29 U.S.C. § 216(b); 10 U.S.C. 

§ 2409; 12 U.S.C. § 1975; 14 U.S.C. § 425; and 16 U.S.C. § 3117. 2See, GAO–06–60, October 2005; GAO–07–259; and, GAO–07–907, July 2007. All of these reports elucidate the ineptitude with which the DOL and DOJ administer USERRA. 3 Id.

3. Give the Office of Special Counsel disciplinary authority like it has under the 

Hatch Act so that Federal supervisors are held personally accountable for their violations of USERRA.

I believe that if this Committee does not make these three changes to USERRA 

I will be back in 5 or 10 years and the situation will remain the same whether it 

is the Department of Labor or the Office of Special Counsel handling the investigation of the complaints, no significant corrective measures will have been taken by 

Federal agencies, state employers and private employers to protect members of the 

military service, and I would especially point out that as the Global War on Terrorism continues the number of National Guardsman and Reservists who are being 

called to second, third and fourth tours of duty will force an increase in the number 

of persons discriminated against. 

I would ask you to place yourself in the shoes of a Reservist or National Guardsman who since September 11th, 2001 has served in Afghanistan for 12 months and 

in Iraq for 15 months and because of those deployments is passed over for a position 

within the Federal Government. Who would you call for help? The Department of 

Labor where only 7 percent of the cases are referred for prosecution? The Office of 

Special Counsel which has a 25 percent correction rate? Or, a highly skilled privately retained attorney with a 70 percent correction rate? Clearly, the answer is 

for the Federal Government to rely on private attorney’s to protect our fighting men 

and women. For private attorneys to properly bare that burden Congress must pass 

and the President must sign a Law that mandates attorney’s fees so that more firms 

like mine would be willing to provide no cost legal services to our citizen soldiers. 

USERRA should be amended to mandate the payment of reasonable attorney fees, 

expert witness fees and other litigation expenses where the claimant has procured 

an Order directing the employer to comply with the provisions of the statute after 

a hearing or adjudication. 

In a recent decision, the Court of Appeals for the Federal Circuit determined that 

while the MSPB may award attorney fees and litigation costs to successful USERRA 

claimants, such awards are not mandatory under 38 U.S.C. § 4324(c)(4). See, Jacob- sen v. Department of Justice, 2007 US App LEXIS 22412. The statute should be 

amended to specifically overrule this interpretation. 

The award of reasonable attorney fees and litigation costs is par-for-the-course in 

virtually all other forms of employment discrimination and veterans benefits litigation. For example, 33 U.S.C. § 918 entitles Longshoremen and harbor workers to attorney fees in successful employment discrimination and workers’ compensation 

claims. Similarly, whistleblowers and veterans discriminated against in violation of 

the Veterans Employment Opportunities Act are also entitled to an award of attorney fees and litigation costs; just to name a few.1 Congress clearly intended to ensure that veterans who have meritorious employment discrimination complaints will 

not be deterred from bringing such claims due to costs associated with the effective 

assistance of counsel. 

This intent must be stated in an amendment to USERRA so that no deserving 

claimant will be forced to bear the burden of his or her own legal representation, 

or worse, deterred from bringing the claim due to economic hardship. Congress enacted USERRA to protect Veterans from unlawful discrimination in their employment because of their military service. An essential aspect of that protection is ensuring that aggrieved Veterans have access to affordable, skilled, and experienced 

legal counsel to successfully enforce their rights under USERRA. 

Furthermore, over the past two (2) years, the Government Accountability Office 

(GAO) has conducted multiple investigations into the efficiency of USSERA enforcement.2 The reports unanimously conclude that the Department of Labor (DOL) and 

the Department of Justice (DOJ) are failing our service men and women in their 

administration of USERRA. The GAO found deficiencies in the manner in which 

both departments advised claimants, processed claims, and enforced claimants’ 

rights.3

The current enforcement scheme fails to provide adequately for victims of 

USERRA violations. Such a systematic failure to properly administer the provisions 

and protections of the Act cannot be justified. Under the circumstances, the only efficient and effective method of redress for victims of USERRA violations is representation by private counsel who will effectively pursue their claim. Given this fact, a 

mandatory award of attorney fees is imperative in the interest of justice; no victim 

60

4See, Final Order dated March 7, 2007. 

of a USERRA violation should have to endure two harms as a result of an unlawful 

employment practice, namely, the denial of a benefit of employment and the financial burden of enforcing his or her rights in the face of such a violation. 

With this in mind, I propose that 38 U.S.C. § 4324(c)(4) be deleted and replaced 

with the following language:

(c)(4) If the Merit Systems Protection Board determines as a result of a hearing 

or adjudication that the claimant is entitled to an order referred to in paragraph 

(2), the Board shall order the agency to comply with such provisions and award 

compensation for any loss of wages or benefits suffered by the individual by reason of the violation involved. A successful claimant SHALL be awarded reasonable attorney fees, expert witness fees, and other litigation expenses. (emphasis 

added).

Similarly, I propose that 38 U.S.C. § 4323(h)(2), which governs the remedies available to State and private employees, be amended to read as follows:

(h)(2) In any action or proceeding to enforce a provision of this chapter [38 

USCS §§ 4301 et seq.] by a person under subsection (a)(2) who obtained private 

counsel for such action or proceeding, the court SHALL award any such person 

who prevails in such action or proceeding reasonable attorney fees, expert witness 

fees, and other litigation expenses. (Emphasis added.)

These amendments are a cost-neutral and minimally restrictive method for 

achieving our goals. By mandating the payment of reasonable attorney fees and litigation costs, the amendment will effectively overrule the prejudicial holding in Jacobsen and eliminate the barrier between aggrieved veterans and the legal counsel 

they need to adequately pursue their rights. It would also finally place USERRA on 

equal ground with other employment discrimination and Veterans benefits statutes, 

thereby effectuating the intent of Congress. This minor revision will provide veterans the best option for enforcing their rights, enabling them to retain private 

counsel and bypass the failed DOL and DOJ administration system. 

Moreover, the change will prevent malicious and detrimental agency action. By 

making attorney fees a statutory benefit under the Act, we can prevent the malicious and injurious agency conduct which occurred in Seitz v. Department of Veterans’ Affairs.4 In Seitz, the agency intentionally protracted the litigation, thereby 

increasing the amount of the claimant’s litigation costs and attorney fees. On the 

eve of the hearing, however, the agency paid the claimant the disputed amount of 

damages and sought to moot the claim. As a result of the agency’s litigation tactics, 

an award only in the amount of the claimant’s disputed damages, was grossly insufficient to return the claimant to the Status Quo Ante payment for the claimant’s 

legal representation, the Board ultimately concluded that the inappropriate conduct 

of the agency entitled the claimant to litigate the issue of attorney fees. 

Nonetheless, codification of this principle is essential. Only by expressly incorporating the claimant’s statutory entitlement to attorney fees can we prevent the 

aforementioned disingenuous conduct. An agency must not be allowed to take actions that facilitate unnecessary legal expenses and then, at the last minute, pay 

the claimant damages in order to render the claim moot. This conduct places the 

burden of legal representation on the claimant, in violation of Congressional intent 

and the prevailing equitable considerations favoring retention of private counsel by 

USERRA claimants. 

USEERA MUST BE AMENDED TO PERMIT THE OFFICE OF SPECIAL COUNSEL TO

INVESTIGATE AND DISCIPLINE FEDERAL EMPLOYEES WHO VIOLATE THE ACT. 

5 U.S.C. § 1215 provides the Office of Special Counsel (OSC) broad powers to investigate and discipline Federal employees who violate any ‘‘law, rule or regulation’’ 

falling within its vast jurisdiction. Unfortunately, USERRA violators have not yet 

been subject to the oversight and disciplinary authority of the OSC. USERRA 

should be amended to empower OSC to investigate and punish violators personally 

for their unlawful discriminatory acts. Personal liability is the ultimate deterrent 

and its implementation would have a profound effect on those unsavory individuals 

who might otherwise commit a USERRA violation. 

Thus, I propose that 38 U.S.C. § 4324 be amended to provide for three (3) new 

subparagraphs (f), (g), and (h) which read as follows:

(f)(1) Except as provided in subsection (g), if the Special Counsel determines 

that disciplinary action should be taken against any employee for having—

(A) committed a prohibited personnel practice, adverse or unlawful employment practice, or violated any provisions of this chapter; 

61

5See, 42 U.S.C. §§ 2000–1 et seq.; and, 5 U.S.C. §§ 3330 et seq. 6Gilbert, Gary. ‘‘Compensatory Damages and Other Remedies in Federal Sector Employment 

Discrimination Case.’’ 2nd ed. Dewey Publications, Inc: Arlington, 2003. Page 97.

(B) violated the provisions of any law, rule, or regulation, or engaged in any 

other conduct within the scope of this chapter [37 U.S.C. §§ 4301 et seq.]; 

(C) knowing fully and willfully refused or failed to comply with an order of 

the Merit Systems Protection Board, the Special Counsel shall prepare a written complaint against the employee containing the Special Counsel’s determination, together with a statement of supporting facts, and present the complaint 

and statement to the employee and the Board, in accordance with this subsection. 

(2) Any employee against whom a complaint has been presented to the Merit 

Systems Protection Board under paragraph (1) is entitled to—

(A) a reasonable time to answer orally and in writing, and to furnish affidavits and other documentary evidence in support of the answer; 

(B) be represented by an attorney or other representative; 

(C) a hearing before the Board or an administrative law judge as prescribed 

by 38 U.S.C. § 4324(c)(1)(A); 

(D) have a transcript kept of any hearing under subparagraph(C); and 

(E) a written decision and reasons therefore at the earliest practicable date, 

including a copy of any final order imposing disciplinary action. 

(3) A final order of the Board may impose disciplinary action consisting of removal, reduction in grade, debarment from Federal employment for a period not 

to exceed 5 years, suspension, reprimand, or an assessment of a civil penalty not 

to exceed $1,000. 

(4) There may be no administrative appeal from an order of the Board. An employee subject to a final order imposing disciplinary action under this subsection 

may obtain judicial review of the order by filing a petition therefore with such 

court, and within such time, as provided for under section 7703(b) [5 USCS 

§ 7703(b)]. 

(g) In the case of an employee in a confidential, policymaking, policy-determining, or policy-advocating position appointed by the President, by and with the 

advice and consent of the Senate (other than an individual in the Foreign Service 

of the United States), the complaint and statement referred to in subsection (f)(1), 

together with any response of the employee, shall be presented to the President 

for appropriate action in lieu of being presented under subsection (f). 

(h)(1) In the case of members of the uniformed services and individuals employed by any person under contract with an agency to provide goods or services, 

the Special Counsel may transmit recommendations for disciplinary or other appropriate action (including the evidence on which such recommendations are 

based) to the head of the agency concerned. 

(2) In any case in which the Special Counsel transmits recommendations to an 

agency head under paragraph (1), the agency head shall, within 60 days after receiving such recommendations, transmit a report to the Special Counsel on recommendation and the action taken, or proposed to be taken, with respect to each 

such recommendation. 

USERRA MUST BE AMENDED TO MANDATE THE PAYMENT OF COMPLETE

COMPENSATORY DAMAGES FOR SUCCESSFUL CLAIMANTS. 

Currently, USERRA does not provide a statutory entitlement to compensatory 

damages for successful claimants. This is an anomaly in employment discrimination 

and Veteran’s benefits legislation.5 Pursuant to 38 U.S.C. §§ 4301 and 4331, 

USERRA must be amended to provide comparable relief to Federal employees for 

violations of the Act. Law and equity demand that USERRA eligible employees receive the same quality anti-discrimination protection as all other employees. 

Title VII was amended to provide for compensatory damages because Congress 

recognized that a financial award, typically consisting of back pay, is often insufficient, by itself, to fully compensate the victim for his or her injuries. Discrimination 

cases commonly involve complex, non-pecuniary injuries. Successful claimants 

should be entitled to compensation for these injuries in addition to their financial 

damages. For example, Section 102 of the Civil Rights Act of 1991 has been held 

to allow recovery for the following non-pecuniary injuries under its compensatory 

damages remedy: ‘‘future pecuniary losses, emotional pain, suffering, inconvenience, 

mental anguish, loss of enjoyment of life, and other non-pecuniary losses.’’ 6 The 

same remedies available to victims of unlawful employment practices under the 

62

7See, Captain Samuel F. Wright, JAGC, USNR article, ‘‘Does USERRA Provide Interest on 

Back Pay Awards?’’ Law Review No. 0611, posted on www.roa.org in April 2006. 

Civil Rights Act of 1991 should be available to victims of discrimination under 

USERRA. 

Therefore, I propose that 38 U.S.C. § 4324(c) be amended to add a new subsection 

(9) to read as follows:

(9) In any claim brought pursuant to the laws of this chapter [38 U.S.C. §§ 4301 

et seq.], where the Merit Systems Protection Board or Administrative Judge determines that an employer failed to comply with the provisions of this chapter, the 

Board or Judge shall award the claimant compensatory damages in addition to, 

but not including, any other relief granted pursuant to this chapter.

Additionally, I propose that 38 U.S.C. § 4323(d)(1) be amended to add a new subsection (E), which reads as follows:

(E) In any action brought pursuant to the laws of this chapter [38 U.S.C. 

§§ 4301 et seq.], where the court determines that an employer failed to comply 

with the provision of this chapter, the court shall award the claimant compensatory damages in addition to, but not including, any other relief granted pursuant to this chapter. 

USERRA MUST BE AMENDED TO REQUIRE THE PAYMENT OF

PRE-JUDGMENT INTEREST ON ALL BACK PAY AWARDS. 

As currently drafted, 38 U.S.C. § 4323(d)(1)(B) provides that, ‘‘[t]he court may require the employer to compensate the person [claimant] for any loss of wages or 

benefits suffered by reason of the employer’s failure to comply with the provisions 

of this chapter.’’ This section should be amended to specifically provided for the payment of pre-judgment interest on back pay awards for three (3) reasons: (i) an 

award of pre-judgment interest is necessary to fully compensate the victim; (ii) Congress intended for awards of back pay to include an award of pre-judgment interest; 

and, (iii) it is necessary in order to provide the same level of protection to victims 

of USERRA violations that Congress has extended to all other victims of employment discrimination. 

An award of back pay lacking accrued interest fails to properly compensate the 

victim for his or her actual damages. For example, paying someone in 2007 for a 

loss that was suffered in 2002 does not take into account two (2) undeniable market 

forces that effect the contemporary value of money: inflation and opportunity cost 

or time value. If an aggrieved Veteran receives an award of back pay in 2007 for 

lost wages occurring in 2002, inflation will have devalued that sum to a measurable 

extent. Furthermore, not having had that money in his or her possession over the 

past five (5) years caused the victim to lose his or her opportunity to invest that 

sum and earn interest. 

It is true that neither §§ 4323(d)(1)(B) nor 4324(c)(2) expressly guarantees a successful claimant interest on an award of back pay. Nonetheless, Congress clearly intended that Veterans discriminated against in violation of USERRA should receive 

interest on awards. Section 4323(d)(3) expressly provides for the payment of prejudgment interest for awards against State and private employers. Additionally, 

under USERRA’s predecessor, the Veterans’ Reemployment Rights Law of 1940 

(VRR), prejudgment interest was commonly awarded, a fact that was well known 

to Congress at the time of USERRA’s enactment.7

Prejudgment interest is routinely awarded in all other employment discrimination 

cases.

Prejudgment interest serves to compensate for the loss of money due as damages from the time a claim accrues until judgment is entered, thereby achieving 

full compensation for the injury these damages are intended to redress[T]o the extent the damages awarded to the plaintiff represent compensation for lost wages, 

it is ordinarily an abuse of discretion not to include prejudgment interest. Fink 

v. City of New York, 129 F.Supp 511, 525–26 (E.D.N.Y. 2001) (Addressing interest 

on back pay awards under USERRA).

Until the statutory language is amended to unambiguously include interest on 

awards for USERRA violations, zealous agency attorneys will continue to argue that 

the absence of an express entitlement to an award of interest is evidence that such 

an award is NOT mandatory. Given the regularity with which these cases take 

years to resolve, prejudgment interest is an essential part of any compensatory remedy. 

Therefore, I propose that 38 U.S.C. § 4323(d)(1)(B) be amended to read as follows:

63

The court may require the employer to compensate the person [claimant] for 

any loss of wages or benefits, INCLUDING INTEREST, suffered by reason of 

the employer’s failure to comply with the provisions of this chapter. (Emphasis 

added)

As noted above, sections 4301(b) and 4331(b)(1) demand that Federal employees 

receive at least the same degree of protection and quality of benefits as all other 

employees under USERRA. Consequently, I propose that § 4324(c)(2) also be amended, and that it read as follows:

(2) If the Board determines that a Federal executive agency or the Office of Personnel Management has not complied with the provisions of this chapter [38 

USCS §§ 4301 et seq.] relating to the employment or reemployment of a person 

by the agency, the Board shall enter an order requiring the agency or Office to 

comply with such provisions and to compensate such person for any loss of wages 

or benefits, INCLUDING INTEREST, suffered by such person by reason of such 

lack of compliance. (Emphasis added). 

USERRA MUST BE AMENDED TO EXPAND THE AVAILABILITY OF

LIQUIDATED DAMAGES FOR SUCCESSFUL CLAIMANTS. 

USERRA currently provides limited instances where a successful claimant may be 

awarded liquidated damages. Pursuant to section 4323(d)(1)(C), if a claimant was 

found be the victim of a willful violation, he or she is entitled to liquidated damages 

in the amount of his or her actual damages. The provision, however, applies only 

to servicemen and women employed by state or local governments or private employers. 

RAJA, H.R. 3393, proposes to amend section 4323(d) by extending its coverage to 

Federal Government employees and by ensuring that liquidated damages will always be available to victims of willful USERRA violations. The bill seeks to increase 

the amount of liquidated damages available to a successful claimant from the 

amount of his/her actual damages to the greater of either $20,000.00 or the claimant’s actual damages. I support these proposals and hope to see both of them implemented. Additionally, the section should be amended to remove the willful violation 

requirement for liquidated damages. 

The payment of liquidated damages is often the only true award granted to victims of USERRA violations. For example, if the victim of a wrongful termination 

under USERRA promptly finds comparable work, his or her actual damages may 

be quite small. As a result, an award of additional liquidated damages that merely 

doubles his or her miniscule actual damages award is an insufficient deterrent to 

employers who would discriminate against military personnel in civilian employment. Liquidated damages of the greater of $20,000.00 or the claimant’s actual damages should be available to USERRA claimants in every case. 

It is imperative that the language in RAJA extending this provision to protect 

Federal employees in the same manner as state and private employees is adopted. 

The purpose of USERRA is to protect ALL veterans, reservists and National Guard 

members irrespective of their place of employment. By treating our service men and 

women differently by virtue of their employer we are defeating the very basis of the 

statute. USERRA demands parity. Justice demands parity. Equitable treatment 

among all USERRA eligible employees is an ethical absolute and is necessary to fulfill the intent of Congress by extending the promise of USERRA protections to all 

eligible employees. 

Therefore, I propose that section 4323(d) be amended to read as follows:

(1) In any action under this section, the court may award relief as follows: (C) 

If the court determines that an employer has failed to comply with the provisions 

of this chapter, the court SHALL require the employer to pay the person as liquidated damages an amount equal to the greater of:... (i) the amount referred 

to in subparagraph (B); or (ii) $20,000.00. (Emphasis added).

Additionally, section 4324(c) must be amended, pursuant to 38 U.S.C. §§ 4301 and 

4331, to provide the same protection. I propose that 38 U.S.C. 4324(c) be amended 

to add a new subsection (7) which reads as follows:

(7) In any action under this section, the court may award relief as follows: (i) 

if the court determines that an employer has failed to comply with the provisions 

of this chapter, the court SHALL require the employer to pay the person as liquidated damages an amount equal to the greater of: (A) the amount referred to 

in subparagraph (C)(2); or (B) $20,000.00. (Emphasis added). 

64

USERRA MUST BE AMENDED TO PROVIDE FOR PUNITIVE DAMAGES

IN THE WORST CASES OF DISCRIMINATION. 

Presently, USERRA does not provide for an award of punitive damages. As mentioned above, section 4323(d) allows for liquidated damages in only the most limited 

of instances. Representative Davis’ RAJA proposals, however, include a provision 

that would allow for punitive damage awards to victims of the worst kinds of discrimination. 

H.R. 3393 proposes to amend USERRA section 4323(d) to provide for the availability of punitive damages, in addition to liquidated damages, where the court finds 

that the violation was committed with ‘‘malice or reckless indifference to the federally protected rights of the person.’’ The proposal would apply only to state and local 

governments and private employers with more than fifteen (15) employees. I support 

these proposals. However, I believe that punitive damage awards need to be expanded even further. 

Punitive damage awards should be available in all cases where the employer 

knowingly, willfully, maliciously or with reckless indifference violated an employees 

protected USERRA rights. Punitive damages are imposed as a deterrent to future 

egregious behavior. Any act taken by an employer of his or her own volition with 

the knowledge that he or she is denying a member of the military his or her protected rights offends the most sacred principles of our society. Such behavior must 

be discouraged in the clearest and strongest manner possible. A simple amendment 

to the existing law unambiguously granting employees a right to punitive damages 

in such cases will greatly reduce the number of employers willing to flout the law. 

Moreover, limiting the availability of punitive damage awards to cases against 

state and local governments and private employers of 15 or more persons leaves a 

vast number of USERRA-eligible employees unprotected. Congress intended for veterans benefit and employment discrimination statutes to apply to all eligible parties 

equally, regardless of their employer. By allowing punitive damage awards only for 

employees of state and local governments and large private employers, the RAJA 

proposal discriminates against an enormous number of veterans, reservists and National Guard members who are employed either by Federal agencies or by smaller 

private employers. USERRA, to be effective, demands parity. How can we look a 

veteran in the eye and tell him or her that we value his or her service less because 

he or she is employed by a ten (10)-person construction crew and not by the Commonwealth of Massachusetts or Morgan Stanley? 

Therefore, I propose that 38 U.S.C § 4323 be amended to read as follows:

(d)(1)(D) If the court determines that the employer willfully, knowingly, maliciously, or with reckless indifference failed to comply with the provisions of this 

chapter, in violation of the employee’s federally protected rights, the person shall 

be entitled to an award of punitive damages in addition to all other remedies outlined in this chapter.

Likewise, 38 U.S.C § 4324(c) must also be amended to provide for punitive damages awards in cases of willful or malicious discrimination. I propose section 4324(c) 

be amended to add a new subsection (8) to read as follows:

(8) If the court determines that the employer willfully, knowingly, maliciously, 

or with reckless indifference failed to comply with the provisions of this chapter, 

in violation of the employee’s federally protected rights, the person shall be entitled to an award of punitive damages in addition to all other remedies outlined 

in this chapter. 

USERRA MUST BE AMENDED TO MAKE INJUNCTIVE AND INTERIM

RELIEF MANDATORY WHERE APPROPRIATE. 

Under the current statutory structure, section 4323(e) of USERRA permits courts 

to invoke their full equity powers to remedy violations at the courts’ discretion. Section 4324 contains no provision regarding the courts’ power to grant equitable relief. 

In 2005 the Seventh Circuit Court of Appeals upheld a lower court decision denying 

injunctive relief under section 4323(e) in Bedrossian v. Northwestern Memorial Hospital, 409 F.3d 840 (7th Cir 2005). Dr. Bedrossian, in addition to his military service 

in the Air Force Reserves, was employed as a physician and professor at Northwestern Memorial Hospital. The Hospital sought to fire Dr. Bedrossian because of 

the inconvenience caused by his military service and the Doctor responded by seeking an injunction. The trial court held, and the Seventh Circuit affirmed that, regardless of the strength of the claimant’s case, an injunction was not an available 

remedy. This decision should be overruled. 

By merely, changing the word ‘‘may’’ in section 4323(e) to ‘‘shall’’, Congress could 

ensure that equitable relief is available to all USERRA victims when appropriate. 

65

8See, Captain Samuel F. Wright, JAGC, USNR article, ‘‘Firmer Teeth: Legislation introduced 

to enhance USERRA enforcement’’ Law Review No. 0754, posted on www.roa.org in October 

2007.

The claimant would still need to demonstrate his or her entitlement to equitable relief in the form of an injunction. However, under the proposed amendment, once the 

claimant has established that an injunction is appropriate, the court would be required to grant it. 

This proposal is one of many contained in H.R. 3393, the Reservists Access to Justice Act (RAJA), sponsored by Representative Artur Davis (D–AL). RAJA recognizes 

that the driving force behind the enactment of USERRA was to support and protect 

the members of our armed forces. The national defense interests of our country require that the segment of our military composed of civilian employees is supported 

by their civilian employers. We are currently fighting a global war on terror on multiple fronts. For the first time in our Nation’s history we are waging war on a grand 

scale without conscription and in reliance on an all volunteer military; Congress recognizes this and strongly supports this Nation’s commitment to voluntary military 

service. Nonetheless:

Congress also recognizes that the reliance on volunteers means that we must 

include substantial incentives for young men and women to join and remain in 

our Nation’s uniformed services. We also must mitigate the disincentives to service, including the realistic fear that ‘‘if I sign up, I will lose my civilian job.’’ 8

Thus, I, too, propose that 38 U.S.C. § 4323 be amended to add a new subsection 

(e) which reads as follows:

The court SHALL use its full equity powers, including temporary or permanent 

injunctions, temporary restraining orders, and contempt orders, to vindicate fully 

the rights or benefits of persons under this chapter. (Emphasis added)

Pursuant to 38 U.S.C. § 4301(b), ‘‘It is the sense of Congress that the Federal Government should be a model employer in carrying out the provisions of this chapter 

[38 USCS §§ 4301 et seq.]’’ With this in mind, Congress enacted 38 U.S.C. 

§ 4331(b)(1) which states, in relevant part:

The Director of the Office of Personnel Management (in consultation with the 

Secretary and the Secretary of Defense) may prescribe regulations implementing 

the provisions of this chapter [38 USCS §§ 4301 et seq.] with regard to the application of this chapter [38 USCS §§ 4301 et seq.] to Federal executive agencies 

(other than the agencies referred to in paragraph (2)) as employers. Such regulations shall be consistent with the regulations pertaining to the States as employers 

and private employers, except that employees of the Federal Government may be 

given greater or additional rights. (Emphasis added).

Therefore, any amendment to § 4323 resulting in greater benefits to an employee 

must also, by law, be reflected in a comparable amendment to § 4324. As a result, 

I also propose that section 4324(c) be amended to provide a new subsection (5) that 

reads as follows:

The Merit System Protection Board or Presiding Administrative Judge SHALL 

use its full equity powers, including temporary or permanent injunctions, temporary restraining orders, and contempt orders, to vindicate fully the rights or 

benefits of persons under this chapter. (Emphasis added)

Additionally, USERRA should be amended to provide for interim relief comparable to that afforded to other employees under 5 U.S.C. § 7701(b)(2) for deserving 

section 4324 claimants. 5 U.S.C. § 7701(b)(2) directs the Merit Systems Protection 

Board (MSPB or Board) to award successful Appellants, ‘‘the relief provided in the 

decision effective upon making the decision, and remaining in effect pending the 

outcome of any petition for review under subsection (e).’’ In contrast, USERRA does 

not require a Federal Executive Agency under section 4324 to furnish any relief 

until a final decision has been entered. Thus, a claimant who successfully established an unlawful employment practice may be required to remain unemployed and 

uncompensated for a period of up to two (2) years until the MSPB enters a final 

decision, whereas, an otherwise identical claimant who files an action before the 

Equal Employment Opportunity Commission is entitled to interim relief immediately upon the entering of an initial decision. This inequity cannot be justified and 

must be remedied. 

The MSPB’s interim relief authority pursuant to 5 U.S.C. § 7701(b)(2) must be extended to USERRA claims. Therefore, I propose that 38 U.S.C. § 4324(c) be amended 

to provide a new subsection (6) that reads as follows:

66

(e)(1) If an employee or applicant for employment is the prevailing party in an 

appeal under this subsection, the employee or applicant shall be granted the relief 

provided in the decision effective upon the making of the decision, and remaining 

in effect pending the outcome of any petition for review under subsection (d), unless—

(A)(i) the relief granted in the decision provides that such employee or applicant shall return or be present at the place of employment during the period 

pending the outcome of any petition for review under subsection (e); and 

(ii) the employing agency, subject to the provisions of subparagraph (a), determines that the return or presence of such employee or applicant is unduly disruptive to the work environment. 

(2) If an agency makes a determination under subparagraph (A) that prevents 

the return or presence of an employee at the place of employment, such employee 

shall receive pay, compensation, and all other benefits as terms and conditions of 

employment during the period pending the outcome of any petition for review 

under subsection (d).

The extensive deployment of Reservists and Members of the National Guard in 

furtherance of the War Against Terror has only compounded the inequity and made 

the need for congressional intervention more pronounced. 

As Army Chief of Staff Gen. George W. Casey Jr. stated during a recent Association of the United States Army Convention, ‘‘Our reserve components are performing magnificently, but in an operational role for which they were neither designed nor resourced. They are no longer a strategic reserve, mobilized only in national emergencies. They are now an operational reserve deployed on a cyclical 

basis,’’ enabling the Army to sustain operations. ‘‘Operationalizing’’ the reserve components ‘‘will require national and state consensus, as well as the continued commitment from employers, soldiers and families,’’ Casey said (emphasis added). ‘‘It will 

require changes to the way we train, equip, resource and mobilize.’’

I could not agree with General Casey more. As the National Guard and Reserves 

change to an operational reserve, it is vital to our national security and our homeland defense to ensure members of these units are protected from losing their fulltime careers while they defend our country at home and abroad. The time for a 

major overhaul of the laws that protect the employment rights of members of the 

National Guard and Reserves is upon us. 

As currently drafted, the Uniformed Services Employment and Reemployment 

Rights Act of 1994 (USERRA) fails to adequately support military personnel upon 

their return to civilian employment. The Honorable Representative Artur Davis (D–

AL) recently sponsored new legislation, H.R. 3393, to address some of the law’s deficiencies. I urge you to demonstrate your strong commitment to the brave men and 

women who serve in the armed forces by supporting these amendments and by incorporating the additional proposals contained within this correspondence into a 

new more comprehensive updating of USERRA. Please fight to get this updated 

USERRA bill passed as quickly as possible. 

Our national defense and homeland security depend on the men and women in 

our National Guard and Reserves, and while they are protecting us we should be 

protecting their civilian jobs. We never want to be in the situation where members 

of the reserves need to pick between helping our national defense and their civilian 

careers, as that will undermine our security. Unfortunately, too many have been 

placed in that situation, and after many deployments (both overseas and stateside 

guarding our bridges, tunnels, nuclear power plants, and responding to natural disasters) have chosen their civilian careers over their service to our country. This exodus of highly skilled and trained personnel could undermine our recruiting efforts 

and result in a hollowed out military force unless Congress takes immediate action 

to strengthen the weak links. Fixing USERRA is a good first step to taking away 

the fear of a deployment and how that deployment will have a negative impact on 

their civilian careers. 

USERRA MUST BE AMENDED TO PROTECT NATIONAL GUARD MEMBERS WHO

ARE CALLED TO ACTIVE DUTY IN STATE SERVICE. 

Active duty National Guard members fulfilling State service obligations are currently excluded from USERRA protection under 38 U.S.C. § 4303(13). The definition 

of ‘‘service’’ contained in that chapter includes virtually all other types of uniformed, 

military duty; including ‘‘full-time National Guard’’ service. The statute expressly 

recognizes the vital importance of National Guard service to our security interests. 

Whether those duties are performed on full or part-time status, or in furtherance 

of Federal or State objectives, is of little consequence when evaluating the critical 

importance of the task. National Guard members called to State service are deVerDate 0ct 09 2002 15:24 Jun 09, 2008 Jkt 000000 PO 00000 Frm 00070 Fmt 6633 Sfmt 6621 H:\PS41451\DOCS\41385.TXT SENVETS PsN: PAULIN
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9 38 U.S.C. § 4303(16). 

10 10 U.S.C. § 101(a)(5)(B). 

ployed to defend, protect, rebuild and sustain American infrastructure and communities. These emergency responders are an integral component of our homeland security strategy, the indispensability of which was heroically demonstrated in the 

aftermath of September 11th and the devastation of Hurricane Katrina. 

Justice demands that their contributions to our national defense and homeland 

security do not go unrecognized. USERRA must be amended to reflect the contributions of National Guard members serving under State obligation and to protect their 

civilian livelihood. The distinction between State active duty and Federal active 

duty for the purposes of USERRA protection is an arbitrary one; we must provide 

all of our uniformed servicemembers with equal protection under the law. 

Thus, I propose that 38 U.S.C. § 4303(13) be amended to read as follows:

(13) The term ’service in the uniformed services’ means the performance of duty 

on a voluntary or involuntary basis in a uniformed service under competent authority and includes: active duty; active duty for training; initial active duty for 

training; inactive duty training; full-time National Guard; service in the National 

Guard under competent state military authority while in support of a homeland 

security mission, in response to a natural disaster, in response to aid to civil authorities, or for any other reason that the Governor of the state declares the need 

for a state activation of the National Guard is necessary, a period for which a person is absent from a position of employment for the purpose of an examination 

to determine the fitness of the employment for the purpose of performing funeral 

honors duty as authorized by section 12503 of title 10 or section 115 of title 32. 

USERRA MUST BE EXPANDED TO PROTECT MEMBERS OF THE COMMISSIONED CORPS OF

THE NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION. 

The National Oceanic and Atmospheric Administration (NOAA) occupies a pivotal 

role in national defense and homeland security. As the first line of defense against 

natural disaster, NOAA is charged with the protection of our persons, property, national security and economic interests. 

Notably, NOAA administers the Defense Meteorological Satellite Program (DMSP) 

in conjunction with the Department of Defense (DOD). The program involves complex aerospace and weapons development and requires the maintenance of a massive satellite network, sensory aircraft and specialized monitoring equipment. 

NOAAs persistent geological monitoring and intelligence gathering are fundamental 

to our national security operations. 

Inexplicably, USERRA excludes members of the commissioned corps of the National Oceanic and Atmospheric Administration from the definition of ‘‘uniformed 

service.’’ 9 This exclusion precludes NOAA employees from invoking USERRA protections in the face of unlawful employment actions. The exclusion is an anomaly and 

appears to be a clerical error given the inclusion of NOAA members in other statutory definitions of ‘‘uniformed service.’’ 10 The Act must be amended to eliminate this 

injustice and to provide critical service men and women with the same benefits their 

uniformed service compatriots share. 

Consequently, I propose that 38 U.S.C. § 4303(16) be amended to read as follows:

(16) The term ‘‘uniformed services’’ means the Armed Forces; the Army National 

Guard and the Air National Guard when engaged in active duty for training, inactive duty training, or full-time National Guard duty; the commissioned corps of 

the Public Health Service; the commissioned corps of the National Oceanic and 

Atmospheric Administration; and any other category of persons designated by the 

President in time of war or national emergency. 

USERRA MUST BE AMENDED TO UNAMBIGUOUSLY PRECLUDE USERRA CLAIMS

FROM BINDING ARBITRATION. 

38 U.S.C. § 4302(b) expressly states that any law, agreement, or practice which, 

‘‘reduces, limits, or eliminates in any manner any right or benefit’’ provided under 

USERRA is preempted by the statute. Nonetheless, the Fifth Circuit Court of Appeals recently held that this provision only preempts agreements limiting the claimants’ substantive rights and not his or her procedural rights (e.g. the right to pursue 

a lawsuit in Federal court as opposed to being required to proceed via arbitration). 

See, Garrett v. Circuit City Stores, Inc., 449 F.2d 672 (5th Cir. 2006). This is an 

egregious misapplication of the text and purpose and intent of USERRA and must 

be overturned by legislative mandate. Veterans must not be denied the procedural 

due process of law as a result of employment agreements contradicting Federal law. 

68

11 20 C.F.R. 1002.103. 12 Id.

Accordingly, I implore you to support RAJA, H.R. 3393, and its proposed amendment to Chapter 1 of Title 9 of the United States Code, which would unambiguously 

exempt USERRA disputes from binding arbitration agreements and expressly overrule Garrett. In that vein, I, too, propose that 38 U.S.C. § 4322 be amended to add 

a new subsection that reads as follows:

(g) Chapter 1 of title 9 shall not apply with respect to employment or reemployment rights or benefits claimed under this subchapter. 

USERRA MUST BE AMENDED TO ADOPT TWO ADDITIONAL EXCEPTIONS TO SECTION 4312’S

5-YEAR LIMITATION ON SECTION 4313 REEMPLOYMENT RIGHTS. 

As currently drafted, USERRA’s reemployment protections lapse after a 5-year period of consecutive active duty service. Section 4312(c) establishes eight specific exceptions to this 5-year limitation, thereby enabling employees to serve five or more 

years of continuous active duty while working for a single employer and retaining 

his or her reemployment rights under the Act. Additionally, the Department of 

Labor (DOL) regulations implementing USERRA recognize a ninth exception. 

DOL USERRA regulation § 1002.103 applies to servicemembers who are forced to 

mitigate economic losses suffered as a result of an employer’s USERRA violation. 

The regulation provides, in relevant part, that a servicemember who remains or returns to the armed services in an attempt to ‘‘mitigate economic losses caused by 

the employer’s unlawful refusal to reemploy that person,’’ 11 shall not be required 

to count the time ‘‘against the 5-year limit.’’ 12 The regulation is grounded in equitable considerations. Those same considerations demand that the exception created 

by the regulation be fully incorporated into the text of the statute. 

I propose that 38 U.S.C. § 4312(c) be amended to add a new subsection (5) which 

reads as follows:

(5) which is undertaken by an individual who remains in or, returns to, uniformed service in order to mitigate economic damages suffered as a consequence 

of the employer’s unlawful failure to comply with the provisions of this chapter.

An additional exception should also be added for National Guard members who 

are called to state active duty service in response to homeland emergencies. As currently drafted, time spent fulfilling active duty training commitments, time on active duty support for critical missions and time called upon for Federal active duty 

National Guard service are all exempt from consideration in calculating a person’s 

4312 time. Presumably, these missions are considered so important that they warrant preferential treatment. Under this reasoning, active duty service in furtherance 

of a State’s emergency response is an equally compelling interest and should receive 

equivalent treatment. 

Homeland emergency response is an integral component of our homeland security 

strategy. The fact that disasters and emergencies requiring the mobilization of active duty National Guard forces are generally unforeseeable adds weight to the argument that service men and women should not be penalized in their USERRA reemployment rights because they were required to answer the call to service. 

USERRA must be amended to take into account the sacrifices of guardsmen and 

their families during times of crisis. National Guard members who respond to such 

crises in State service should be entitled to the same protections as their Federal 

counterparts. 

Therefore, I propose that 38 U.S.C. § 4312(c) be amended to provide for a new subsection (6) that reads as follows:

(6) service in the National Guard under competent state military authority 

while in support of the homeland, in response to a natural disaster, in response 

to aid to civil authorities, or for any other reason that the Governor of the state 

declares the need for a state activation of the National Guard is necessary. 

USERRA MUST BE AMENDED SO THAT THE TERM ‘‘ADJUDICATION’’ IN§ 4324(C)(1) IS DEFINED AS PROVIDING THE SAME PROCEDURES AVAILABLE TO APPELLANTS UNDER 5

U.S.C. § 7701. 

In its current incarnation, USERRA does not expressly outline the formal due 

process to which claimants are entitled when bringing a claim for relief of an alleged violation of the Act. In Kirkendall v. Department of the Army, the Court of 

Appeals for the Federal Circuit concluded that every USERRA claimant has a right 

to a hearing and that he or she is entitled to the same procedures as an ‘‘appellant’’ 

69

under 5 U.S.C. § 7701(a). See, Kirkendall v. Department of the Army, 479 F.3d 380 

(Fed. Cir. 2007). 

5 U.S.C § 7701(a) expressly provides for basic due process formalities in other appeals brought before the MSPB. USERRA should be amended so that both sections 

4323 and 4324 unambiguously state the due process rights afforded to claimants. 

USERRA claimants must be granted the same procedural protections that the 

United States Code extends to other employees. Codification of the holding in 

Kirkendall will effectively extend the due process protections of 5 U.S.C. § 7701(a) 

to USERRA claimants and correct any enduring ambiguities. 

Therefore, I propose that 38 U.S.C. § 4323(a) be amended to incorporate a new 

subsection (3) which reads as follows:

(3) Any employee, or applicant for employment, who submits any claim or action 

for relief pursuant to the rights outlined in this chapter [38 U.S.C. §§ 4301 et seq.] 

shall have the right: 

(A) to a trial by Judge or Jury, for which a transcript will be kept; and 

(B) to be represented by an attorney or other representative.

In addition, I propose that 38 U.S.C. § 4324(c)(1) be amended to provide for a new 

subparagraph (A) which reads as follows:

(A) Any employee, or applicant for employment, who submits any claim or action for relief pursuant to the rights outlined in this chapter [38 U.S.C. §§ 4301 

et seq.] shall have the right: 

(i) to a hearing for which a transcript will be kept; and 

(ii) to be represented by an attorney or other representative. 

USERRA SECTION 4324 MUST BE AMENDED TO STATE UNEQUIVOCALLY THAT THERE IS

NO STATUTE OF LIMITATIONS PROVISION GOVERNING THE TIME PERIOD IN WHICH TO

BRING A CLAIM UNDER THE ACT. 

Section 4323(i) clearly states that ‘‘[n]o Statute of Limitations shall apply to any 

proceeding under this chapter [38 USCS §§ 4301 et seq.].’’ Sections 4301 and 4331 

compel Congress to amend section 4324 to provide the same protection to Federal 

Government employees. 

The MSPB has already held that no Statute of Limitations applies to cases 

brought under § 4324. See, Hernandez v. Department of the Air Force, 2007 U.S. 

App. LEXIS 20280, 6–7. Nonetheless, codification of this principle is the only way 

to ensure that future Federal Executive Agencies will not successfully overturn this 

ruling and reinstate the arbitrary distinction between Federal employees and all 

other employees for the purpose of USERRA Statute of Limitations claims. 

Therefore, I propose that 38 U.S.C. § 4324 be amended to add a new subsection 

(e) which reads as follows:

(e) Inapplicability of statute of limitations. No statute of limitations shall apply 

to any proceeding under this chapter [38 USCS §§ 4301 et seq.]. 

USERRA MUST BE AMENDED TO CREATE A NEW SECTION, SECTION 4327, FOR THE

PURPOSE OF ADJUDICATING CLAIMS BY FEDERAL JUDICIARY BRANCH EMPLOYEES. 

USERRA presently provides no enforcement mechanism for employees of the Federal judiciary branch to adjudicate claims under the Act. The inequity in such a discrepancy is apparent. USERRA was not drafted to apply only to employees of certain branches of the Federal Government. The Act must be amended to provide employees of the Federal judiciary branch the same anti-discrimination protections and 

enforcement mechanisms available to all other Federal employees. 

A new section, section 4327, should be created to establish the adjudicative body, 

procedures and protections available to Federal judiciary branch employees under 

USERRA. The Section should otherwise be identical to section 4324, including all 

of my proposed revisions. 

USERRA MUST BE AMENDED TO IMPROVE ENFORCEMENT AND PROCEDURAL

TRANSPARENCY FOR FEDERAL EMPLOYEES OF INTELLIGENCE AGENCIES. 

Pursuant to 38 U.S.C. § 4315, most employees of Federal Intelligence Agencies, including all employees of agencies governed by 5 U.S.C. § 2302(a)(2)(C)(ii), are not entitled to the same adjudicative procedures available to employees of other Federal 

Executive Agencies under 38 U.S.C. § 4324. This is an arbitrary distinction and one 

that contradicts the express purpose of the Act. As such, it should be remedied. 

As a threshold matter, § 4315 should be amended to require that all adjudicative 

‘‘procedures’’ prescribed pursuant to subsection (a) be published within 120 days of 

the date the new Bill is signed into law. Procedural transparency is essential to the 

efficient and orderly administration of the statute. Employees cannot properly purVerDate 0ct 09 2002 15:24 Jun 09, 2008 Jkt 000000 PO 00000 Frm 00073 Fmt 6633 Sfmt 6621 H:\PS41451\DOCS\41385.TXT SENVETS PsN: PAULIN
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sue their rights under the law if the requisite procedures are cloaked in secrecy. I 

appreciate the Intelligence community’s unique circumstances. Nonetheless, I see no 

threat to our national security in requiring the agencies to publish their internal 

rules regarding USERRA enforcement. 

Furthermore, § 4315 should be amended to provide employees of the agencies 

within 5 U.S.C. § 2302(a)(2)(C)(ii) with the same procedural rights and available 

remedies bestowed upon § 4324 employees. Again, denying certain Federal employees equal rights under USERRA based merely upon the Federal agency by which 

they are employed is an arbitrary delineation and one that contradicts the purpose 

and intent of the Act. 

Therefore, I propose that 38 U.S.C. § 4315 be amended to mirror section 4324’s 

procedural mechanisms and remedies, including all of my proposed revisions. 

USERRA MUST BE AMENDED TO REQUIRE THAT ANY STATE ACCEPTING FEDERAL FUNDING MUST WAIVE ITS 11TH AMENDMENT SOVEREIGN IMMUNITY IN USERRA ACTIONS. 

In his RAJA proposal, H.R. 3393, Representative Davis has included language 

that would amend USERRA to ensure that any state accepting Federal funding for 

a state program or activity is deemed to have waived its Sovereign Immunity in 

cases of USERRA violations. I wholeheartedly support this proposal and beseech you 

to do the same. 

This proposal is imperative to prevent further instances in which an aggrieved 

veteran with a legitimate right to enforce is denied relief due to the lack of a forum 

in which to pursue his or her claim. In Larkins v. Department of Mental Health and 

Mental Retardation, 806 So.2d 358 (AL Sup Ct 2001), that exact scenario unfolded. 

Mr. Larkins was forbidden from suing the State of Alabama in Federal Court because of the Eleventh Amendment of the Constitution of the United State’s Sovereign Immunity clause. Moreover, he was denied relief in the Alabama State Court 

system by reason of Alabama’s own State Constitutional Sovereign Immunity protection. Thus, Mr. Larkins found himself with a substantive right to enforce but no 

effective method for enforcing it. An unenforceable right is of no value to an injured 

party. 

By amending the Act to provide for a waiver of the 11th Amendment’s Sovereign 

Immunity protection for states accepting Federal funding for state projects, RAJA 

ensures that no other USERRA eligible employee will suffer Mr. Larkins’ fate. Removing the defense of Sovereign Immunity guarantees USERRA claimants will always be able to pursue their claims against the State-as-employer in Federal court. 

This provision is necessary in order to extend the congressionally envisioned protections of USERRA to all eligible employees. 

Consequently, I, too, propose that 38 U.S.C. § 4323(d)(1) be amended to read as 

follows:

(j)(1)(A) A State’s receipt or use of Federal financial assistance for any program 

or activity of a State shall constitute a waiver of sovereign immunity, under the 

eleventh amendment to the Constitution or otherwise, to a suit brought by an employee of that program activity under this chapter for the rights or benefits authorized the employee by this chapter. (B) In this paragraph, the term ‘‘program 

or activity’’ has the meaning given the term in section 309 of the Age Discrimination Act of 1975 (42 U.S.C. § 6107). 

USERRA MUST BE AMENDED TO PROVIDE VETERANS THE RIGHT TO

BRING THEIR CLAIMS IN EITHER STATE OR FEDERAL COURT. 

Presently, section 4323(b) of USERRA allows veterans to bring cases against private employers in Federal court and cases against the state in state court. RAJA, 

H.R. 3393, proposes to amend the Act by granting veterans the right to bring their 

claims in either state or Federal court regardless of whether they are employed by 

the state or a private employer. I support this proposal and urge you to do the same. 

The additional flexibility such an amendment provides is vital to guaranteeing 

USERRA-eligible employees the best opportunity to successfully pursue their claims. 

As a result, I too propose that section 4323(d)(1) be amended to remove the current paragraphs denoted as (2) and (3) and replace them with a new paragraph (2) 

that reads as follows:

(2) In the case of an action against a State (as an employer) or a private employer by a person, the action may be brought in a district court of the United 

States or state court of competent jurisdiction. 

71

THE UNITED STATES CODE MUST BE AMENDED TO EXTEND USERRA PROTECTIONS TO

EMPLOYEES OF THE TRANSPORTATION SECURITY ADMINISTRATION. 

USERRA does not presently apply to employees of the Transportation Security 

Administration (TSA). TSA is typically exempt from employment discrimination 

statutes. This Congressional policy decision, however, failed to weigh the importance 

of USERRA protection to our national defense and security interests. USERRA is 

a unique statute. It requires unique administration and unique enforcement mechanisms. The Act is designed specifically to encourage enrollment in the uniformed 

services of this country. This has never been more vital. The military Reserves and 

National Guard are currently fully operational and members of these units compose 

a significant portion of our active duty forces deployed across the globe. Under these 

circumstances, it is absolutely imperative that USERRA protection is extended to 

each and every civilian-employed member of the uniformed services; including TSA 

employees. 

Therefore, I propose that 38 U.S.C. section 4303(5) be amended to read as follows:

(5) The term ‘‘Federal executive agency’’ includes the United States Postal Service, the Postal Rate Commission [Postal Regulatory Commission], any non-appropriated fund instrumentality of the United States, the Transportation Security 

Administration, any Executive agency (as that term ifs defined in section 105 of 

title 5 [5 USCS § 105]) other than an agency referred to in section 2302 

(a)(2)(C)(ii) of title 5 [5 USCS § 2302(a)(2)(C)(ii)], and any military department (as 

that term is defined in section 102 of title 5 [5 USCS § 102]) with respect to the 

civilian employees of that department.

The proposed changes outlined above are pivotal in advancing our national defense interests and achieving parity and equity in the workplace. USERRA was designed and implemented to provide comprehensive anti-discrimination protection for 

military personnel in civilian employment. In order to effectuate this congressional 

mandate, we must improve opportunities for injured veterans to pursue their rights 

under the Act, increase the statutory mechanisms that serve as deterrents to unlawful employer behavior, and create uniformity in the law’s protections to all 

USERRA-eligible employees, regardless of their employer. 

USERRA should no longer be a second-class anti-discrimination statute; we owe 

it to our service men and women to provide them with the premier anti-discrimination law in the land. We must encourage military service in our all-volunteer forces 

and ensure that those who have served are properly cared for upon their return 

home, now more than ever. The proposed changes represent the least restrictive 

means possible for effectuating legitimate equality in the workplace and guaranteeing that no one other than a USERRA violator will bear the costs of the improved 

enforcement.

Chairman AKAKA. Thank you. Thank you very much, Mr. Tully. 

I want you to know that we appreciate your thoughts and various recommendations for improvements in USERRA and that we 

will be looking into those as we draft future legislation on the subject. It is astounding for me to hear that you had 4,802 cases to 

deal with along this line. 

Mr. Tully, I would like your answer to the same question as I 

asked other witnesses this morning. I am deeply concerned that individuals who were sent to battle by the Federal Government are 

put in the position of having to do battle with that same government in order to regain their jobs when they return home. In your 

experience, can you think of any reason that the Federal Government as an employer would have any problems with complying 

with USERRA for its employees? In your experience, are the problems facing servicemembers when they return to claim their jobs 

the position itself, or benefits associated with that position? 

Mr. TULLY. Mr. Chairman, just to point out, it is 1,802 clients 

that we had during the demonstration project. I wish we had 4,000. 

Chairman AKAKA. Thank you for that correction. 

Mr. TULLY. I believe the No. 1 problem is ignorance of the law. 

Many of the Federal supervisors are not up to date on the ins-andouts of USERRA and the escalator principles. That is why one of 

72

my proposals is giving the Office of Special Counsel disciplinary 

powers. The first time the Office of Special Counsel brings a disciplinary action against a supervisor who violated USERRA, that 

will dramatically decrease the number of USERRA violations you 

have in the Federal Government. And I think as part of the demonstration project, not only getting the monetary damages that are 

due to a servicemember, but bringing about justice to the supervisors who inflicted the harm on the person is critical. Right now, 

there is no mechanism to punish a Federal supervisor who violates 

USERRA. 

And I believe the second problem is budgetary. Many of the Federal agencies are being crunched due to financial constraints. If 

they lose somebody, like, for example, the Chief of Staff for the Department of Labor VETS, somebody else has to fill that spot and 

some positions may not have to be filled on an overtime basis, but 

in the Federal law enforcement communities, they have to fill those 

posts. So for my position, for example, as a corrections officer, my 

post when I left had to be filled and that cost the Bureau of Prisons 

my salary plus time-and-a-half for somebody else to fill it, and that 

builds up a little bit of animosity. 

Chairman AKAKA. Mr. Tully, your testimony presents an interesting perspective on the jurisdictional question. It could tend to 

lead one to conclude that there are hundreds of USERRA violations 

and cases out there that are not tracked or even recorded or even 

cared about. Do you believe that this is the situation? 

Mr. TULLY. Absolutely, Mr. Chairman. This GAO report only 

dealt with OSC and DOL–VETS. There is a third option which was 

not incorporated in the GAO report at all, which is private attorneys. Under USERRA, a servicemember who believes he has a discrimination allegation does not have to go to DOL–VETS, does not 

have to go to the Office of Special Counsel. They can retain private 

counsel. And the figures from the Merit Systems Protection Board 

show that the overwhelming majority of prosecutions by Federal 

executive employees has been done either pro se or by private 

counsel like myself. So the snapshot that GAO is taking is of a 

fraction of the overall USERRA violation cases in the Federal sector. 

Chairman AKAKA. Well, I want to thank you so much for traveling here and joining us and providing your testimony and your 

responses to our questions. I want to wish you well on your deployment and thank you so much for your service to our country. 

Mr. TULLY. Thank you, Mr. Chairman. 

Chairman AKAKA. Thank you so much, everyone, for being here 

and being a part of this hearing. 

This hearing is adjourned. 

[Whereupon, at 11:08 a.m., the Committee was adjourned.] 

(73)

A P P E N D I X 

PREPARED STATEMENT OF PHILIP POPE, DEPUTY EXECUTIVE DIRECTOR, NATIONAL

COMMITTEE FOR EMPLOYER SUPPORT OF THE GUARD AND RESERVE

Phil Pope became the Deputy Executive Director, National Committee for Employer Support of the Guard and Reserve in January 2005. Phil came to NCESGR 

after serving over 33 years in the United States Army. He holds undergraduate and 

graduate degrees from Auburn University and a master’s degree from the National 

Defense University. 

He entered the Army in 1971 as a private and served as a rifleman, 90mm recoilless rifle gunner, and squad leader. In 1977, as a sergeant, he entered Officer Candidate School from the North Carolina Army National Guard and was commissioned 

a Lieutenant of Infantry in 1978. 

Mr. Pope’s assignments include tours in the United States, Europe, and Asia. He 

commanded Company B, 3d Battalion, and 11th Infantry, in the 5th Infantry Division, at Fort Polk, Louisiana, from May 1981 to December 1982. From 1986 to 1989, 

he served as a Tactical Officer at the United States Military Academy, West Point, 

New York. In 1990, he was assigned to the Office of the Deputy Chief of Staff, Operations, United States Army Europe (USAREUR), where he served as an Arms Control Officer. During Operations Desert Shield and Desert Storm, he served as the 

Operations Officer (S3) for the 7th Battalion, 6th Infantry, 1st Armored Division. 

After Desert Storm, he returned to Germany and served as an Operations Officer 

in USAREUR Headquarters. In 1992, Mr. Pope was assigned as the Operations Officer (S3) for the 1st Battalion, 6th Infantry, 3d Infantry Division. Upon completion 

of his assignment in Germany, Mr. Pope assumed the duties as Chief, Regional 

Training Team, 1st Brigade, 78th Division (Exercise) at Fort Dix, New Jersey. From 

1994 to 1996, he commanded the 1st Battalion, 9th Infantry, 2d Infantry Division 

at Camp Hovey, Korea. In 1998, He returned to Europe, where he served as the 

Deputy Chief of Staff, Operations (G3), 1st Infantry Division, and as the Assistant 

Deputy Chief of Staff, Operations (DG3) V Corps. From August 2000 through August 2002 he was the Garrison Commander at Fort Riley, Kansas. Mr. Pope has 

served two tours on the Army Staff working on the G–3 staff and serving as the 

Legislative Assistant to the Secretary of the Army. His last assignment was as the 

Senior Military Assistant to the Assistant Secretary of Defense, Reserve Affairs. 

Mr. Pope is a graduate of the Infantry Officer Advanced Course, the Command 

and General Staff College, and the National War College. His awards and decorations include the Defense Superior Service Medal, Legion of Merit with 2 Oak Leaf 

Clusters, the Bronze Star with ‘‘V’’ Device and Oak Leaf Cluster, the Meritorious 

Service Medal with Silver Oak Leaf, the Combat Infantryman’s Badge, Ranger Tab, 

and the Parachutist Badge. Mr. Pope also is a recipient of the Order of Saint Maurice and a 2002 inductee in the Army Officer Candidate School Hall of Fame. 

Chairman Akaka and Members of the Committee: thank you for the invitation to 

offer my perspective on issues relating to the Uniformed Services Employment and 

Reemployment Rights Act (USERRA) program. Your invitation letter asked me to 

address the findings set forth in the report issued by the Government Accountability 

Office (GAO) on July 20, 2007, entitled ‘‘Improved Quality Controls Needed over 

Servicemembers’ Employment Rights Claims at DOL’’ (GAO–07–907). This report 

looked at the results of a demonstration project which authorized the Office of Special Counsel, rather than the Department of Labor, to receive and investigate certain USERRA claims. You asked us to provide our view on what might be learned 

from an extension of the demonstration project and the merits of conducting a follow-up review. I will give you my agency’s position on that report. 

As you know, the Uniformed Services Employment and Reemployment Rights Act 

of 1994 protects the employment and reemployment rights of Federal and non-Federal employees who leave their employment to perform military service. The role of 

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informing servicemembers and employers about this law, and of enforcing it fall to 

several different government organizations. 

Employer Support of the Guard and Reserve (ESGR) is a Department of Defense 

organization which operates a proactive program directed at U.S. employers, employees, and communities that ensures understanding and appreciation of the role 

of the National Guard and Reserve in the context of the DOD Total Force Policy. 

We do this by recognizing outstanding support, increasing awareness of the law, and 

resolving conflicts through informal mediation. 

Gaining and maintaining employer support requires a strong network comprised 

of both military and civilian-employer leaders that is capable of providing communication, education and exchange of information. ESGR works with the Reserve 

component leadership from each service, appropriate government organizations such 

as the Department of Labor’s Veterans’ Employment and Training Service (DOLVETS), and the Small Business Administration, and industry associations such as 

the Chamber of Commerce and others, to create a broad-based, nationwide support 

for our troops. 

It is important to note that ESGR is not an enforcement agency, and we do not 

have statutory authority to offer formal legal counsel or to participate in any formal 

investigative or litigation process. Our part in the USERRA issue is to inform and 

educate our customers—servicemembers and their civilian employers—regarding 

their rights and responsibilities under the USERRA statute, and to also provide an 

informal mediation service. We have over 1,000 trained volunteer ombudsmen 

throughout the country and a national call center in Arlington, Virginia, to provide 

this service. Our call center received over 13,000 requests for assistance during 

FY07. Of those requests, 10,742 were informational in nature, that is, they were sufficiently resolved by providing information about the law. The remaining 2,374 were 

assigned as cases to our ombudsmen. Through a Memorandum of Agreement (MoA) 

between ESGR and DOL–VETS, ESGR refers to DOL–VETS any cases we are unable to successfully mediate within 14 days. During FY07, ESGR referred 416 cases 

to DOL–VETS. It should be further noted that the ESGR mediation process is now 

covered by the Administrative Dispute Resolution Act of 1996. This statute is fairly 

restrictive regarding the protection of privacy for all parties involved in the dispute. 

Thus, even for cases ESGR refers to the DOL–VETS under our MoA, ESGR is unable to pass on any case information exchanged between claimants and ESGR ombudsmen without the written consent of all parties involved in the mediation. 

ESGR’s mandate ends at this point in the USERRA resolution process. As I understand it, absent the mandated demonstration project between DOL–VETS and 

Office of Special Counsel (OSC), DOL investigates and attempts to resolve claims 

filed by servicemembers, and if not successful, DOL informs the Federal claimants 

that they may request to have their claims referred to the OSC, and informs nonFederal claimants that they may engage the Department of Justice. Of course, all 

parties reserve the right to engage private counsel at any time. 

The report from the GAO concerned the specific investigation process for Federal 

claimants, that is, servicemembers who are employees of, prior employees of, and 

applicants to Federal executive agencies. Under the demonstration project, the DOL 

and OSC essentially divided Federal sector USERRA claimants. The investigative 

and administrative responsibilities for the Federal sector claims that stayed with 

DOL remained the same, while cases assigned to OSC under the project were investigated and administered by OSC. 

You asked us to provide our view on what might be learned from an extension 

of the demonstration project. 

As I stated earlier, ESGR’s role is primarily to inform and educate 

servicemembers and their employers regarding their rights and responsibilities 

under USERRA, and to offer informal mediation to both. ESGR does not have any 

statutory authority to investigate or litigate USERRA complaints, nor do we differentiate between Federal and non-Federal claimants. As such, our primary interest in this demonstration project was to gain further understanding of the investigative process so we could inform our customers, and to see if either of the two models 

used for processing claims—a local process by DOL–VETS offices throughout the 

country or a centralized, national process by the OSC—was more effective in providing resolution. 

Based on the DOL agreement with the GAO’s findings, I believe the demonstration project was a success and all agencies involved in the USERRA resolution process will gain further efficiencies by incorporating the GAO recommendations. 

We also continue to believe that the original USERRA process is the process that 

will continue to best serve the interests of servicemembers, whereby the Department 

of Defense, through the ESGR organization, provides informal mediation, and the 

Department of Labor continues to have the statutory authority to investigate 

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USERRA claims. The ESGR and DOL will, of course, continue to collaborate to the 

fullest extent possible to ensure the speediest and most effective resolution of 

USERRA challenges. 

For our part, ESGR will continue its mission to gain and maintain employer support by recognizing outstanding support, increasing awareness of the law, and resolving conflicts through informal mediation, and by cooperating to the fullest extent 

allowable with the Department of Labor. 

I hope that I have been able to clarify the role played by the Employer Support 

of the Guard and Reserve in helping to explain, and where applicable, mediate, 

issues involving the Uniformed Services Employment and Reemployment Rights 

Act.

Thank you.

Æ