GAO-05-74R OSC’s Enforcement of USERRA

United States Government Accountability Office

Washington, DC 20548 

October 6, 2004 

The Honorable Edward M. Kennedy 

Ranking Minority Member 

Committee on Health, Education, 

 Labor, and Pensions 

United States Senate 

Subject: U.S. Office of Special Counsel’s Role in Enforcing Law to Protect 

Reemployment Rights of Veterans and Reservists in Federal 

Employment 

 

Dear Senator Kennedy: 

The U.S. Office of Special Counsel (OSC) enforces the rights of federal employees 

and applicants for federal employment under the Uniformed Services Employment 

and Reemployment Rights Act (USERRA) of 1994.1

 USERRA provides for the 

employment and reemployment rights of federal and nonfederal employees who 

leave their employment to perform military service. USERRA also prohibits 

discrimination against persons because of their military service. In light of the 

significant number of National Guard members and reservists serving in the war in 

Iraq and in other conflicts who will be demobilized and returning to the federal 

workforce in the coming months, you asked us to review issues surrounding 

enforcement of the act in the federal sector, particularly by OSC. 

Under USERRA, a federal employee or applicant who believes that his or her 

USERRA rights have been violated may file a claim with the Department of Labor’s 

(DOL) Veterans’ Employment and Training Service (VETS), which investigates and 

attempts to resolve the claim.2 If VETS cannot resolve the claim, the individual may 

request that it be referred to OSC. 3 In addition to handling USERRA claims, OSC 

handles claims of prohibited personnel practices by federal agencies. In a March 

2004 report, we discussed OSC’s performance in processing cases filed with the 

 

1

Pub. L. No. 103-353, 108 Stat. 3149, as amended, codified at 38 U.S.C. sections 4301-4333. 

2

VETS also handles claims from employees of other employers, including state government and private 

sector employers. If VETS cannot resolve these nonfederal claims, an individual may ask for a referral 

to the Department of Justice, which may prosecute the claim. 

3

According to VETS, in fiscal year 2003, the agency resolved about 94 percent of the claims submitted 

to it without the need for referral. The resolution of these claims includes agency voluntary 

compliance, settlement, no merit conclusions, and administrative closures. 
Page 2 GAO-05-74R OSC’s Enforcement of USERRA

agency, including those filed under USERRA.4 This report responds to your request 

to provide information on (1) how OSC carries out its responsibilities under 

USERRA, (2) the average number of days OSC took to process USERRA claims from 

fiscal years 1999 through 2003, (3) changes OSC has made to handle current USERRA 

claims and any increase in claims, and (4) changes OSC believes are necessary to 

make the handling of USERRA claims in the federal sector more efficient and 

effective. 

To address these objectives, we interviewed OSC and DOL officials responsible for 

processing federal sector USERRA cases and coordinating efforts between OSC and 

VETS. We reviewed OSC’s documents describing the agency’s role in the referral 

process and the procedures for processing USERRA cases. To obtain perspectives 

concerning OSC’s plans to handle any increase in USERRA cases and changes needed 

to ensure protections of service members’ reemployment rights, we interviewed key 

agency officials and reviewed written testimony from a June 23, 2004, House 

Committee on Veterans Affairs hearing on compliance with USERRA. To determine 

the average time spent by OSC to process a USERRA claim during fiscal years 1999 

through 2003, we reviewed caseload data generated from OSC’s data tracking system 

(OSC 2000). Processing time for a claim is determined from the date that a claim is 

referred to OSC until the case is either resolved through corrective action, OSC 

decides that the case has no merit, or OSC files a case with the Merit Systems 

Protection Board (MSPB).5

 In our March 2004 report, we assessed the reliability of 

the case tracking data system and verified the accuracy of the data by comparing and 

testing electronic data elements for obvious errors. To determine the completeness 

and accuracy of OSC's USERRA case data, we compared OSC's data with data from 

DOL on the number of cases referred and the recommendation of the merits of those 

cases. On the basis of our assessment of OSC 2000 and the caseload data that it 

generated, we determined that the data for fiscal years 1999 through 2003 were 

sufficiently reliable for the purposes of our report. We conducted our review in 

Washington, D.C., from April 2004 through September 2004 in accordance with 

generally accepted government auditing standards. 

Results in Brief 

OSC’s responsibility under USERRA is to determine the merits of claims it receives 

from DOL and to seek corrective action on behalf of individuals in federal 

employment whose claims have merit. In its self-described role as a “special 

prosecutor” of such claims, OSC attempts to resolve a claim that has merit first by 

negotiating with the claimant’s federal employer. If negotiation fails, OSC proceeds 

to initiate legal action against the employer before MSPB and then, if necessary, the 

U.S. Court of Appeals for the Federal Circuit. The claim referral from DOL to OSC 

includes the results of DOL’s investigation and the legal analysis of the claim by the 

appropriate DOL regional solicitor. While OSC takes this information into account, 

the agency determines the merits of each claim by performing its own legal analysis 

and independently reviewing the facts and law applicable to the claim. OSC agreed 

 

4

See GAO, U.S. Office of Special Counsel: Strategy for Reducing Persistent Backlog of Cases Should 

Be Provided to Congress, GAO-04-36 (Washington, D.C.: Mar. 8, 2004). 5

MSPB is an independent, quasi-judicial agency in the executive branch that serves as the guardian of 

federal merit principles. 
Page 3 GAO-05-74R OSC’s Enforcement of USERRA

with DOL’s recommendation about whether or not a claim had merit in about 73 

percent of the claims (43 of 59) OSC processed from fiscal years 1999 through 2003. 

After conducting its own review of these claims, OSC determined that 5 of the 59 

claims had merit. 

OSC took an average of about 145 days to process the 59 USERRA claims that the 

agency received from fiscal year 1999 through 2003. During this period, USERRA 

claims represented less than 1 percent of OSC’s overall caseload. Unlike the law 

governing prohibited personnel practice cases, USERRA does not include a time 

frame within which OSC is required to process cases covered under the act. 

According to OSC, it obtained full corrective action from the involved federal agency 

for all 5 claims that OSC determined had merit during fiscal years 1999 through 2003. 

Recently, OSC has taken several steps that agency officials said would be helpful in 

processing USERRA cases more quickly and in dealing effectively with anticipated 

increases in new USERRA cases. Most significantly, in April 2004, OSC established 

its Special Projects Unit (SPU) to act as a “SWAT” team to address high-priority case 

processing needs, including the handling of all USERRA cases. Prior to the formation 

of SPU, OSC attorneys who specialized in USERRA may have had other priority 

cases, and nonspecialists in USERRA were assigned USERRA cases. By assigning all 

USERRA cases to SPU and detailing attorneys specializing in these cases to SPU, 

OSC’s objective is to ensure that these cases get priority attention. OSC officials also 

reported that the agency is working closely with the Department of Defense’s 

National Committee for Employer Support of the Guard and Reserve to explain to 

federal employees their rights under USERRA. Also, OSC said it maintains Webbased and telephone “hot lines” that provide a source of information and assistance 

about employer and employee rights and responsibilities under USERRA. 

At the June 2004 hearing before the House Committee on Veterans Affairs, the 

Special Counsel discussed two potential enhancements to OSC’s authority that he 

said could help make the handling of USERRA cases in the federal sector more 

efficient and effective. In both instances, the Special Counsel said it is unclear 

whether USERRA already gives OSC such authority. First, the Special Counsel said 

that to help ensure that OSC has all of the information that it needs to resolve a claim, 

OSC should be allowed to get involved in a USERRA claim while the investigation at 

DOL is ongoing, rather than having to wait until DOL finishes it and refers the claim 

to OSC. In this regard, OSC and DOL are discussing amendments to a memorandum 

of understanding between the two agencies that would bring OSC into the process 

earlier. According to DOL, OSC would become involved once VETS finished its 

investigation and sent the claim to DOL’s regional solicitor. OSC has asked DOL to 

identify difficult cases that would benefit from OSC’s earlier involvement. OSC 

officials have indicated that they support a demonstration project, included in 

proposed legislation, that would allow OSC to get involved earlier by requiring DOL 

to share responsibility with OSC for receiving and processing USERRA claims. DOL 

opposes a change that would give OSC authority to receive and process USERRA 

claims, noting that if OSC performs initial investigations it would create 

inconsistency in the federal USERRA process. Second, the Special Counsel said if 

OSC was given the authority under USERRA to pursue disciplinary actions against 

offending federal supervisors in cases in a manner similar to authority the agency has 

in enforcing other federal employment violations, supervisors would be held 
Page 4 GAO-05-74R OSC’s Enforcement of USERRA

accountable for upholding the law. Currently, under USERRA, OSC can seek only 

corrective action from the federal agency. 

 

Background 

OSC’s mission is to safeguard the federal merit system, primarily by investigating 

prohibited personnel practices and seeking corrective or disciplinary action through 

negotiation with agencies or prosecuting claims before MSPB. OSC is authorized to 

receive disclosures of alleged wrongdoing, such as violations of law and “gross 

waste” of funds by federal employees (termed “whistleblower disclosures”).6

 The 

agency also has jurisdiction over the Hatch Act,7 which regulates the political 

activities of individuals employed by the federal and District of Columbia 

governments as well as certain state and local government employees employed in 

connection with programs financed by federal funds. 

Following the 1991 Gulf War, reservists and employers flooded the government with 

questions and claims concerning the reemployment rights of reservists who had been 

away from their jobs during the war. At that time, reemployment rights were set 

forth in the provisions of the Veterans Reemployment Rights Act of 1974.8

 In 1994, 

following review of the effectiveness of the 1974 act, Congress passed USERRA to 

clarify, simplify, and strengthen the existing employment and reemployment rights of 

veterans. USERRA prohibits a public or private sector employer from denying any 

benefit of employment on the basis of any individual’s membership, application for 

membership, performance of service, application for service, or obligation for service 

in the uniformed services. USERRA also protects individuals from retaliation for 

asserting, or assisting someone in asserting, their rights under USERRA. USERRA 

also protects the employment and reemployment rights of veterans, reservists, 

National Guard members, and certain other members of the uniformed services who 

were absent from their civilian employment due to military service, including service 

for training. 

OSC Evaluates Claims Received from DOL and Seeks Corrective Action for 

Individuals with Claims That Have Merit 

OSC’s responsibility under USERRA is to determine the merits of federal sector 

claims it receives from DOL and to seek corrective action on behalf of individuals 

whose claims have merit. In its self-described role as a “special prosecutor” of such 

claims, OSC attempts to resolve a claim that has merit first by negotiating with the 

claimant’s federal employer. If negotiation fails, OSC would proceed with legal 

action against the employer before MSPB9

 and then, if necessary, in the U.S. Court of 

Appeals for the Federal Circuit. 

OSC is not authorized to receive USERRA federal sector claims directly from 

claimants. Instead, OSC receives claims after they have been filed with VETS. If 

 

6

Reprisal for whistleblower disclosure is a prohibited personnel practice. 

7

The provisions commonly referred to as the Hatch Act, as applied to federal and District of Columbia 

employees, are found under subchapter III of chapter 73 of title 5. The Hatch Act provisions relating to 

certain state and local employees are found under chapter 15 of title 5. 8

Pub. L. No. 93-508, 88 Stat 1578 (Dec. 3, 1974). 

9

A claimant can bypass both VETS and OSC and take his or her claim directly to MSPB. 
Page 5 GAO-05-74R OSC’s Enforcement of USERRA

VETS efforts do not resolve the claim, the individual can have the case referred to 

OSC, regardless of its merit. 

When an individual employed by the federal government requests that his or her 

claim be referred to OSC,VETS regional investigators first send the investigative file 

and a recommendation for or against representation to the appropriate DOL regional 

solicitor. 10 The regional solicitor identifies the legal issues surrounding the claim and 

prepares a legal analysis. This analysis, a conclusion as to the merits of the case, and 

a recommendation about whether OSC should provide representation are included in 

the letter of referral from the regional solicitor to OSC. While OSC takes this 

information into account, the agency conducts its own review of the facts and law 

applicable to each claim. If OSC is satisfied that the claimant is entitled to corrective 

action, the agency begins negotiations with the claimant’s federal employer. If an 

agreement cannot be reached, OSC may represent the claimant before MSPB, upon 

the claimant’s request. If MSPB rules against the claimant, OSC may decide to appeal 

the decision to the U.S. Court of Appeals for the Federal Circuit. In cases where OSC 

finds that the claim does not have merit, OSC would inform the claimant of its 

decision not to represent the claimant and the claimant’s right to take the case to 

MSPB. 

In fiscal years 1999 through 2003, for claims referred to OSC by DOL, OSC and the 

regional solicitor agreed on whether or not a claim had merit for about 73 percent of 

the claims (43 of the 59) 11 and disagreed on about 14 percent (8 of 59). In 2 cases, 

OSC and DOL disagreed on procedural issues and in the remaining 6 cases, the 

information from OSC was not clear as to DOL’s determination. (See fig. 1.) 

 

10DOL’s Office of the Solicitor is the chief legal counsel responsible for providing legal advice and 

analysis for the agency. The office has eight regional offices, which are each headed by a regional 

solicitor. 

11While OSC received 60 claims from DOL during this period, we excluded one case from our review 

because it was opened, closed, reopened, closed again, and is currently under reconsideration, 

meaning it was unresolved at the time of our review. 
Page 6 GAO-05-74R OSC’s Enforcement of USERRA

Figure 1: OSC and DOL’s Determinations for Cases Processed by OSC, Fiscal 

Years 1999 through 2003 

a

DOL’s finding cannot be definitively ascertained from OSC data for varying reasons, including that 

recommendations were not in the OSC file or that according to OSC, the file was destroyed pursuant 

to federal archive regulations. 

b

OSC found that one case was premature and DOL disagreed. In the other case, OSC found that the 

claim was barred because of a prior claim. Again, DOL disagreed. 

In instances when OSC’s determination differs from DOL’s determination on the 

merits of a case, OSC notifies the regional solicitor of its determination and the 

reasoning behind it and invites comments. OSC reviews the comments of the 

regional solicitor, if any, prior to making its final determination on a case. The 

enclosure provides more detailed information on the steps in processing a USERRA 

claim from initiation to resolution as well as information on the types of USERRA 

claims. 

Claim Processing Time Varied Widely, but OSC Obtained Corrective Action 

from Federal Employers on All USERRA Claims That Had Merit 

From fiscal years 1999 through 2003, OSC took an average of about 145 days to 

process the 59 USERRA claims received from DOL. These USERRA claims 

represented less than 1 percent of OSC’s entire caseload. USERRA does not specify a 

time frame within which OSC is required to process claims covered under the act.12 

 

12In its annual reports to Congress, OSC provides data on the different categories of claims pending at 

the end of each fiscal year. Because OSC is required to process prohibited personnel practice and 

whistleblower disclosure claims within certain statutory time frames, the agency reports the 

“backlog”—the number of claims that have not been processed in the applicable time frame. 

Technically, because USERRA does not require OSC to process claims within a specific statutory time 

frame, there is no backlog of these cases. Claims pending at the end of a fiscal year, however, are 

carried over to the following year. 
Page 7 GAO-05-74R OSC’s Enforcement of USERRA

OSC’s USERRA claim processing time ranged from as little as 2 days to as long as 30 

months. There was little correlation between whether a claim was ultimately found 

to have merit and how long it took to process it. For example, two of the five claims 

that the agency determined had merit took 30 months to process; the other three took 

60, 96, and 119 days. Of the claims determined to lack merit, the range also varied 

widely. For example, five claims that the agency determined had no merit took from 

10 to 17 months to process; three other claims found to lack merit took 2 days. 

According to OSC, it was able to obtain full corrective action from the involved 

federal agency on each of the five claims that OSC determined had merit.13 DOL 

agreed with OSC’s determination of merit in four of these claims. In the fifth claim, 

DOL determined that the claim lacked merit. 

OSC Has Made Changes Designed to Expedite Handling of Current USERRA 

Claims and Any Influx of New Claims 

According to OSC officials, under the current Special Counsel, the agency has taken 

several steps to help process current USERRA claims more quickly and cope 

effectively with anticipated increases in USERRA claims. Most significantly, in April 

2004, OSC established its SPU that acts as a “SWAT” team to address high-priority 

claim processing needs, including the handling of all USERRA claims. 

According to OSC, SPU is intended to maximize OSC’s efficiency by eliminating 

OSC’s chronic backlog of non-USERRA claims. Prior to the establishment of SPU, 

OSC attorneys who specialized in USERRA may have had other priority claims, and 

nonspecialists in USERRA were assigned USERRA claims. By assigning all USERRA 

claims to SPU and detailing attorneys specializing in these claims to SPU, the Special 

Counsel said he intends to give these claims priority attention. According to OSC, 

SPU will have two attorneys with USERRA experience and a supervisory attorney 

handling USERRA claims. OSC further stated that it would detail or hire additional 

attorneys, investigators, and other OSC staff, as needed, to handle any surge in the 

number of USERRA claims it receives. 

In another action, OSC has initiated steps to inform federal employees and managers 

during visits to federal agencies about OSC’s role in protecting the employment and 

reemployment rights of guardsmen and reservists. Officials also said that OSC is 

working closely with the Department of Defense’s National Committee for Employer 

Support for the Guard and Reserve to explain to federal employees their rights under 

USERRA. In addition, OSC said it maintains Web-based and telephone “hot lines” 

that provide information and assistance about employer and employee rights and 

responsibilities under USERRA. 

 

13During his June 23, 2004, testimony, the Special Counsel said OSC filed its first USERRA claim with 

MSPB that day because OSC determined that an agency was unwilling to provide adequate relief for a 

service member. 
Page 8 GAO-05-74R OSC’s Enforcement of USERRA

OSC Says Enhancements to Its Authority Are Needed to Ensure the 

Protection of USERRA Rights 

In his June 2004 testimony, the Special Counsel said the USERRA referral process 

creates unnecessary inefficiency, and he said more specific authority for OSC to 

investigate claims and pursue disciplinary action against offending federal 

supervisors could help remedy this problem. The Special Counsel said it is unclear 

whether USERRA already gives OSC such authority. 

Under current procedures, once a person with a claim against the federal government 

requests that VETS refer a claim to OSC, the regional solicitor undertakes its legal 

analysis or additional investigation where necessary, which OSC says generally takes 

about 3 to 6 months, but can take longer. Only after completion of the analysis is the 

claim referred to OSC. The Special Counsel said that after receiving a claim from the 

regional solicitor, OSC often requests that the involved federal agency voluntarily 

provide information to OSC that VETS had not requested. 

The Special Counsel also testified that processing claims under USERRA could be 

more efficient if the investigative and prosecutorial authority, currently bifurcated 

between DOL and OSC under the act, were merged. He noted that OSC has the 

authority to investigate and prosecute allegations of prohibited personnel practices. 

The Special Counsel said merging of the investigative and analytical functions would 

reduce the chances of “over-investigating” USERRA cases that are without merit and 

would increase the chances of identifying claims warranting prosecution so that OSC 

can move expeditiously toward obtaining corrective action on behalf of the claimant. 

In an attempt to bring OSC’s investigative and legal expertise into the process earlier, 

OSC and VETS are discussing amendments to a memorandum of understanding 

between the two agencies. VETS officials indicated that OSC’s earlier involvement 

would begin when the claimant asked that the claim be referred to OSC, which is 

when the regional solicitor gets the claim from VETS. OSC has also asked VETS to 

identify difficult claims that would benefit from OSC’s early involvement. 

OSC officials have indicated that they support recently proposed legislation that calls 

for a demonstration project for OSC to share responsibility with DOL to receive and 

investigate USERRA claims.14 For the period of the demonstration, this legislation 

would allow OSC to receive certain USERRA claims directly from claimants 

employed by the federal government without these claims going through DOL first. 

Such a change would represent a new method of delivering services to those covered 

under the act. It is unclear whether OSC would need additional procedures or 

resources to use the new authority that this legislation would give the agency. 

DOL officials stated that while they are working to involve OSC earlier in DOL 

investigations where it may be advantageous to the claimant to do so, DOL does not 

concur or support the idea of OSC receiving USERRA claims and conducting initial 

investigations of those claims. DOL is concerned that if OSC performs the initial 

investigations in USERRA claims without DOL participation, this would create 

inconsistency in the federal government in how USERRA cases are investigated. DOL 

 

14H.R. 4658, 108th Cong. sec. 212 (2004). See also S.2791, 108th Cong. sec. 6 (2004). 
Page 9 GAO-05-74R OSC’s Enforcement of USERRA

currently investigates both private and public sector (including federal) USERRA 

claims. DOL officials stated that in fiscal year 2003, the department resolved about 94 

percent of USERRA complaints without referral to either the Department of Justice 

or OSC.15 According to DOL, if OSC investigates USERRA claims brought against 

federal employers, the federal sector claimant will not have the benefit that private 

sector and other public sector claimants would have of DOL’s expertise in 

investigating and settling cases, which currently resolves most cases without the 

need for litigation.

In response to DOL’s concerns, OSC stated that an allegation of a USERRA violation 

is identical to a prohibited personnel practice, as every USERRA complaint involves 

the allegation of an illegal employment practice. According to OSC, it has experience 

and expertise in handling veterans’ preference issues, discrimination cases, reprisal 

claims, and violations of federal personnel regulations. The agency stated that it 

employs personnel specialists, investigators, and federal labor law attorneys to carry 

out its role of investigating prohibited personnel practices in the federal sector and 

maintains liaisons with nearly every federal agency for the purpose of facilitating its 

investigations and case resolutions. OSC also stated that it has an Alternate Dispute 

Resolution Unit that offers mediation services in appropriate cases. 

When discussing what he called a lack of clarity with respect to OSC’s authority to 

pursue disciplinary action against offending federal supervisors for USERRA 

violations, the Special Counsel noted that OSC has this authority in dealing with other 

federal employment violations, such as prohibited personnel practice cases.16 Under 

USERRA, however, the agency generally seeks only corrective action. 

Agency Comments 

On September 10, 2004, we provided a draft of this report to DOL and OSC for their 

review and comment. DOL’s comments, from the Office of the Assistant Secretary of 

Veterans’ Employment and Training Services, centered on proposed legislation that 

would give OSC the authority to receive and investigate USERRRA claims. Officials 

indicated that they are working to include OSC earlier in investigations done by the 

department but they do not concur or support a change that would allow OSC to do 

initial investigations of USERRA claims. DOL stated that such a change would create 

inconsistency in the federal government in how USERRA cases are investigated and 

deprive federal sector claimants of the benefit that private sector and other public 

sector claimants have of the department’s expertise in investigating and settling 

cases. We incorporated DOL’s position on the proposed legislation and other 

technical comments as appropriate. 

 

15According to DOL, of the claims that are referred by DOL, 90 percent are private sector and state and 

local government claims that are referred to the Department of Justice and only about 10 percent are 

claims against the federal government, which are referred to OSC. 

16Under 5 U.S.C. 1215, OSC is authorized to seek disciplinary action against an agency employee for 

having committed a prohibited personnel practice or having violated another provision of law within 

OSC's jurisdiction, as set forth in 5 U.S.C. 1216. 5 U.S.C. 1216 does not include specific reference to 

OSC's authority under USERRA. 
Page 10 GAO-05-74R OSC’s Enforcement of USERRA

We received oral comments from OSC’s Director, Congressional and Public Affairs. 

OSC agreed with the contents of the report and stated that the report accurately 

reflected the agency’s role in enforcing USERRA. With respect to concerns 

expressed by DOL about OSC becoming involved in initial investigations of USERRA 

claims, OSC responded that it has the experience and expertise to obtain all relevant 

information to reach a determination as to whether the USERRA claimant is entitled 

to relief under the statute. Officials further stated that given OSC’s 25 years of 

experience in investigating and resolving illegal employment practices in the federal 

sector, USERRA claimants will not be disadvantaged at all by having OSC receive and 

process their claims. OSC reiterated its point that for claims received and processed 

entirely by OSC, the proposed legislation would eliminate an arguably unnecessary 

bifurcation of investigative and prosecutorial functions. Consequently, according to 

OSC, service members would benefit from having their USERRA cases processed in a 

more timely and efficient manner that may exceed that which is afforded under the 

current system. In addition, OSC provided technical comments, which we have 

incorporated as appropriate. 

__ __ __ __ __ __ 

As agreed with your office, unless you publicly announce its contents earlier, we plan 

no further distribution of this report until 30 days after its issuance date. At that time 

we will send copies to the Secretary of Labor; Special Counsel, Office of Special 

Counsel; interested congressional committees; and other interested parties. In 

addition, this report will be available without charge on GAO’s Web site at 

www.gao.gov. 

If you have questions about this report, please contact me at (202) 512-9490 or Belva 

Martin, Assistant Director, at (202) 512-4285. You may also reach us by e-mail at 

stalcupg@gao.gov or martinb@gao.gov. Other key contributors to this assignment 

were Karin Fangman, Sharon Hogan, and Michael Rose. 

Sincerely yours, 

George H. Stalcup 

Director, Strategic Issues 

Enclosure 
Page 11 GAO-05-74R OSC’s Enforcement of USERRA

Enclosure 

Procedures for Processing USERRA Cases 

The processing of a Uniformed Services Employment and Reemployment Rights Act 

of 1994 (USERRA) case generally begins when an aggrieved federal employee or 

applicant files a complaint with the Department of Labor’s (DOL) Veterans 

Employment and Training Service (VETS) and continues until the claim is resolved. 

Figure 2 details the steps in that process. 

Figure 2: Administrative Process for Federal Sector USERRA Claims 

When the Office of Special Counsel (OSC) receives a USERRA referral, the agency 

enters the claim into its computerized case tracking system—OSC 2000—and sends 

an acknowledgment letter to the DOL regional solicitor. OSC also sends an 

acknowledgment letter to the claimant along with a consent form for the claimant to 

sign and return to OSC. The consent form designates the extent to which OSC is 

permitted to (1) communicate with the regional solicitor, VETS, and the involved 

federal employer and (2) disclose the claimant’s identity. General procedures for 

referring USERRA claims are expressly stated in a February 2001 memorandum of 

understanding between OSC and VETS, which describes the respective roles and 

responsibilities of the agencies. OSC officials stressed that open communication with 
Page 12 GAO-05-74R OSC’s Enforcement of USERRA

DOL allows the two agencies to share information and is vital to effective USERRA 

enforcement. For example, OSC may request clarification of the letter of referral and 

legal analysis from the regional solicitor, who is supposed to facilitate 

communication between OSC and the DOL investigator of the claim. 

OSC’s criterion for deciding whether to represent a claimant is predicated upon the 

merit of the claim, which is dictated by two main factors: the facts of the case and 

application of the law. In reviewing USERRA cases, OSC officials told us that 

practical experience with other types of cases, such as prohibited personnel practice 

and whistleblower disclosure cases, has helped OSC attorneys to examine the 

evidence, identify deviations from standard operational procedures and practices, 

and look for signs of disparate treatment of the claimant compared to other federal 

employees or applicants. 

On occasion, OSC receives alleged violations of USERRA or other laws pertaining to 

veterans’ rights as part of broader, multifaceted prohibited personnel practice cases. 

An OSC official stated that staff are trained to detect cases alleging that a right under 

any law or regulation related to veterans’ preference may have been violated and to 

immediately send these cases directly to OSC’s USERRA supervisory attorney for 

review. This is especially important because only DOL handles claims alleging 

violations of veterans’ preference. Mindful that there is a time limit within which 

individuals must file their claims in such cases, OSC advises claimants to promptly 

seek corrective action with DOL. 

OSC is not required to represent every claimant who seeks its assistance. In USERRA 

cases where OSC determines there is no merit, OSC declines representation and 

notifies the claimants of (1) the fact that the Special Counsel has decided not to 

represent the claimant and (2) the claimant’s right to file an appeal with MSPB. 

Pursuant to the terms of the memorandum of understanding between OSC and VETS, 

the notice does not discuss the factual or legal bases of OSC’s determination not to 

represent the claimant as that notice, which is not privileged from discovery, may 

otherwise be obtained by the agency and used against the claimant in any subsequent 

litigation. OSC sends a copy of the notification to the DOL regional solicitor. 

Types of USERRA Claims 

Under USERRA, there are two types of claims: (1) discrimination, including 

retaliation, and (2) reemployment rights. Of the 59 USERRA claims that OSC 

received from DOL in fiscal years 1999 through 2003, 17 OSC data show 12 as 

reemployment rights; 46 as discrimination, including a claim where the complainant 

alleged retaliation for filing a USERRA claim; and the remaining claim contained 

allegations of both reemployment and discrimination issues. 

(450334) 

 

17While OSC received 60 claims from DOL during this period, we excluded one case from our review 

because it was opened, closed, reopened, closed again, and is currently under reconsideration, 

meaning it was unresolved at the time of our review. 
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