Page 1 GAO-12-860R Veterans’ Reemployment Rights

United States Government Accountability Office 

Washington, DC 20548

September 10, 2012

The Honorable Patty Murray

Chairman

The Honorable Richard Burr

Ranking Member

Committee on Veterans’ Affairs

United States Senate

The Honorable Jeff Miller

Chairman

The Honorable Bob Filner

Ranking Member

Committee on Veterans’ Affairs 

House of Representatives

Subject: Veterans’ Reemployment Rights: Department of Labor and Office of Special Counsel 

Need to Take Additional Steps to Ensure Demonstration Project Data Integrity

Congress enacted the Uniformed Services Employment and Reemployment Rights Act of 1994 

(USERRA)1 to protect the employment and reemployment rights of federal and nonfederal 

employees when they leave their employment to perform military or other uniformed service and 

return to civilian employment after that service.2

Under USERRA, an employee or applicant for employment 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

Among other rights, servicemembers who meet 

the statutory requirements are entitled to reinstatement to the positions they would have held if 

they had never left their employment or to positions of similar seniority, status, and pay. With the 

drawdown in Iraq complete and the drawdown in Afghanistan underway, thousands of current 

and former military servicemembers are undergoing a transition from their military service back 

to their civilian employment, thereby increasing the importance of USERRA to help facilitate this 

transition.

 1

Pub. L. No. 103-353, 108 Stat. 3149 (Oct. 13, 1994) (codified at 38 U.S.C. §§ 4301-4335). USERRA is the most 

recent in a series of laws protecting veterans’ employment and reemployment rights going back to the Selective 

Training and Service Act of 1940. Pub. L. No. 783, 54 Stat. 885, 890 (Sept. 16, 1940).

2

In addition to those serving in the armed forces and the Army and Air National Guards (when engaged in active duty 

for training, inactive duty training, or full-time National Guard duty), USERRA covers the commissioned corps of the 

Public Health Service and other persons designated by the President in time of war or national emergency. 

 
Page 2 GAO-12-860R Veterans’ Reemployment Rights

the claim. If DOL’s VETS cannot resolve the claim and the servicemember is a federal 

government employee or applicant to a federal agency, DOL is to inform the claimant of the 

right to have his or her claim referred to the Office of Special Counsel (OSC)3

Under a demonstration project established by the Veterans Benefits Improvement Act of 2004 

(VBIA),

for further review 

and possible OSC representation before the Merit Systems Protection Board (MSPB) or that 

they may file a complaint directly with the MSPB.

4 from February 8, 2005, through December 31, 2007, OSC was authorized to receive 

and investigate certain USERRA claims, while DOL continued its investigative role for others. In 

2007, we evaluated the demonstration project and made recommendations to DOL to help 

establish internal controls for claims review, claimant notification, and data management.5

The Veterans’ Benefits Act of 2010 (VBA) directed DOL and OSC to establish a second 

demonstration project (36-month duration) for receiving, investigating, and resolving USERRA 

claims filed against federal executive agencies.6 As in the first demonstration project, DOL and 

OSC each receive claims and are each authorized to investigate and seek corrective action for 

those claims.7 The VBA also required that we evaluate how DOL and OSC designed the 

demonstration project and assess their relative performance during and after the demonstration 

project. In June 2011, we reported on the methods and procedures that DOL and OSC had 

agreed to establish for the demonstration project and recommended that both agencies take a 

number of steps to ensure a comparable process and sufficiently reliable data.8

This first interim assessment of the demonstration project (1) determines the number of 

USERRA demonstration project claims DOL and OSC have received and resolved from August 

9, 2011 (start of the demonstration project), to May 9, 2012, and additional DOL and OSC data 

reportable for the demonstration project to date, and (2) assesses DOL and OSC 

In response to 

our recommendations, DOL neither agreed nor disagreed with our recommendations, but 

discussed actions underway to address the recommendations. OSC generally concurred with 

our recommendations.

 3

OSC is an independent investigative and prosecutorial agency with the primary mission of protecting the 

employment rights of federal employees and applicants for federal employment.

4

Pub. L. No. 108-454, §204, 118 Stat. 3598, 3606-08 (Dec. 10, 2004). Under VBIA, the demonstration project was 

originally scheduled to end on September 30, 2007, but through a series of extensions ran through December 31, 

2007.

5

See GAO, Military Personnel: Improved Quality Controls Needed over Servicemembers’ Employment Rights Claims 

at DOL, GAO-07-907 (Washington, D.C.: July 20, 2007).

6

Pub. L. No. 111-275, § 105, 124 Stat. 2864, 2868-70 (Oct. 13, 2010). 

7

DOL is authorized to investigate and seek corrective action for those claims filed against federal executive agencies 

if the servicemember’s Social Security number (SSN) ends in an even number, and OSC is authorized to investigate 

and seek corrective action for USERRA claims against federal executive agencies if the servicemember’s SSN ends 

in an odd number. If a claim does not contain an SSN, VETS will assign a claim number based on the date of the 

month the claim is received. For example, claims filed on an odd-numbered date will be assigned an odd case 

number and forwarded to OSC; claims filed on an even-numbered date will be assigned an even case number and be 

investigated by VETS. Also, under the demonstration project, OSC is authorized to handle any “mixed claims” in 

which a claimant files a USERRA claim against a federal executive agency and also brings a related prohibited 

personnel practice claim. There are 12 prohibited personnel practices including discrimination, retaliation, or 

unauthorized preference or improper advantage. 5 U.S.C. § 2302.

8

See GAO, Veterans’ Reemployment Rights: Steps Needed to Ensure Reliability of DOL and Special Counsel 

Demonstration Project’s Performance Information, GAO-11-312R (Washington, D.C.: June 10, 2011).
Page 3 GAO-12-860R Veterans’ Reemployment Rights

implementation of our recommendations on the demonstration project’s design, including 

ensuring data reliability, and their adherence to other requirements in the VBA.

To determine the number of USERRA demonstration project claims that DOL and OSC received 

and resolved and what additional data is reportable to date, we reviewed and analyzed data 

from DOL’s and OSC’s case tracking system for cases opened between August 9, 2011, and 

May 9, 2012. We also interviewed DOL and OSC staff on the data they plan to report for the 

demonstration project.

To assess the extent to which DOL and OSC have implemented our recommendations on the 

demonstration project’s design, we reviewed the recommendations from our report on the 

design of the project, interviewed DOL and OSC staff on the steps taken to implement the

demonstration project, and reviewed supporting documentation and the requirements of the 

demonstration project set forth in the VBA. To assess the reliability of the data systems used to 

collect and track performance data for the demonstration project, we reviewed relevant 

documentation and interviewed DOL and OSC staff. We also tested the data collected by 

reviewing the data for errors, missing entries, duplicate entries, and other logic testing and also 

selected a random sample of 12 cases that had been opened and closed at each agency and 

traced certain data elements from those cases in DOL’s and OSC’s case tracking systems to 

source case files.

We conducted this performance audit from April 2012 to September 2012 in accordance with 

generally accepted government auditing standards. Those standards require that we plan and 

perform the audit to obtain sufficient, appropriate evidence to provide a reasonable basis for our 

findings and conclusions based on our audit objectives. We believe that the evidence obtained 

provides a reasonable basis for our findings and conclusions based on our audit objectives.

We shared the findings of our interim assessment of the status to date of DOL and OSC 

implementation of the demonstration project with both Senate and House committee staff. This 

report transmits the briefing slides provided to Senate and House committee staff, and are 

included in enclosure I.

Summary of Findings

DOL and OSC began the USERRA demonstration project on August 9, 2011, meeting the time 

frame (within 60 days of our report on the project’s design) required by the VBA. From August 9, 

2011, to May 9, 2012, DOL has received 87 USERRA demonstration project cases and OSC 

has received 123 cases. See table 1 for cases received and resolved (i.e., claim granted or 

claim resolved in claimant’s favor) and average processing times in the investigation phase 

between August 9, 2011, and May 9, 2012.

Table 1: Cases Received and Resolved Favorably and Average Processing Times in the Investigation Phase 

between August 9, 2011, and May 9, 2012

Number of 

cases 

received 

Number of 

cases 

closed 

Number of 

cases resolved 

favorably

Average 

processing time 

of closed cases 

Average processing 

time of cases 

resolved favorably

Department of Labor 87 78 15 36.6 days 51.1 days 

Office of Special 

Counsel 

123 46 8 79.1 days 83.9 days 

Source: GAO analysis of DOL and OSC data.
Page 4 GAO-12-860R Veterans’ Reemployment Rights

The data reported in this study cover only 9 months of the demonstration project and do not 

represent the overall results of the 36-month project nor are we drawing any conclusions of the 

relative performance at either agency. As both agencies continue to collect and track data, we 

will be able to provide an in-depth evaluation of relative performance. We did not report 

customer satisfaction survey data in this assessment due to the short amount of time the survey 

has been available to claimants and the low survey response rate. Also, while both agencies 

track time spent on cases on an ongoing basis, OSC only compiles cost data on those cases 

that have been closed while DOL compiles cost data on open and closed cases. Therefore, we 

plan to evaluate and compare the relative cost data during later assessments of the 

demonstration project.

In June 2011, we made five recommendations to DOL and OSC on the design of the 

demonstration project jointly agreed by them. Since then we have continuously reviewed the 

steps both agencies have taken to implement the five recommendations.

In August 2011, DOL and OSC provided documentation to us on the steps both agencies had 

taken since June 2011 to implement the recommendations. We reviewed the documentation 

provided by both agencies in August 2011 and determined that two of the recommendations 

had been implemented at that time, while the remaining three had not yet been fully 

implemented prior to the start of the demonstration project on August 9, 2011. The two 

recommendations implemented by DOL and OSC prior to the start of the demonstration project 

in August 2011 were to (1) establish a comparable two-phase process at both agencies and 

(2) establish a common set of case outcomes. To satisfy the first recommendation, OSC had 

developed a plan to establish and implement a two-phase process, and DOL officials agreed 

that OSC’s process is comparable to DOL’s process. To satisfy the second recommendation, 

OSC and DOL provided us with a crosswalk that identified similar case outcomes at each 

agency for USERRA demonstration project cases. Although we would have preferred that all 

five recommendations be fully implemented prior to the start of the demonstration project we did 

not believe that the remaining actions needed on the three outstanding recommendations 

warranted delaying the August 2011 start of the demonstration project.

This first interim assessment of the demonstration project assesses the steps DOL and OSC 

have taken since August 2011 to implement the three outstanding recommendations that we 

determined were not fully implemented when we reviewed DOL and OSC documentation in 

August 2011. The outstanding recommendations not fully implemented prior to the start of the 

demonstration project in August 2011 were to (1) establish comparable methods for 

administering a customer satisfaction survey; (2) establish comparable methods for tracking the 

time spent on and costs of USERRA demonstration project cases; and (3) agree upon a 

controls plan and implementation strategy for ensuring the integrity, reliability, and accuracy of 

performance data for the USERRA demonstration project. Based on this interim assessment of 

the steps taken by DOL and OSC since August 2011, we have determined that DOL and OSC 

have now fully implemented the three outstanding recommendations from our assessment of 

the demonstration project’s design, in line with the requirements in the VBA. However, while this 

interim assessment found that DOL and OSC fully implemented the three outstanding 

recommendations, both agencies could take additional steps to improve data integrity beyond 

what we recommended in our assessment of the demonstration project’s design in June 2011. 

DOL and OSC actions to implement the three outstanding recommendations are described in 

detail in the following paragraphs.
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• DOL and OSC have established and administered, on an on-going basis, a customer 

satisfaction survey by entering into an interagency agreement with the Office of Personnel 

Management (OPM) as survey administrator, which provides comparable information, 

includes a survey plan and protocols for contacting respondents, in line with the 

recommendation from our assessment of the demonstration project’s design. The customer 

satisfaction survey was first sent out on April 19, 2012, to all claimants whose cases had 

been closed from August 9, 2011, to April 19, 2012, 8 months after the start of the 

demonstration project. Since then, DOL and OSC have sent the survey on an ongoing basis 

after cases are closed. As of May 22, 2012, DOL and OSC have achieved a 28.2 and 46.3 

percent response rate for their respective customer satisfaction surveys.

While the survey has been established and deployed, the response rates for the surveys 

account for less than half of claimants whose cases have been closed. In addition, the 

survey response rates appear to present a response bias in the results as claimants who 

indicated that they had a favorable case outcome in the survey responded at higher rates 

than exist in the total population of closed cases, making the survey results generally more 

positive. However, DOL and OSC have no plans to assess the reasons that a claimant did 

not respond to the survey, although OPM stated that it may be able to conduct such an 

analysis for DOL and OSC but neither agency has requested it. In guidance to executive 

branch agencies administering surveys, the Office of Management and Budget states that 

agencies should try to achieve the highest practical rates of response and recommends an 

analysis of nonresponse bias if the overall survey response rate is less than 80 percent.

While the response rate achieved is low, the results of the survey may still provide 

information indicating opportunities for DOL and OSC to improve their USERRA claims 

processing. For example, the customer satisfaction survey asked respondents to indicate 

which statement best describes the outcome of their complaint and, as of May 22, 2012, 5 of 

the 22 DOL claimants and 3 of the 18 OSC claimants said they did not know the outcome of 

their claim after their claim was investigated by DOL or OSC.9

• DOL and OSC also established cost accounting systems by the start of the demonstration 

project on August 9, 2011, to collect and track actual time spent processing USERRA 

demonstration project cases, implementing the recommendation from our assessment of the 

demonstration project’s design. The cost accounting systems allow both agencies to 

compute the average cost of USERRA cases across the investigation and legal review 

phases, as well as in the aggregate. While the cost accounting systems developed at each 

agency vary somewhat in the way they track time spent, both systems track actual salary, 

benefits, and indirect cost components by applying an hourly rate that includes those 

components for each specific employee who works on and tracks time spent on 

demonstration project cases.

This may indicate that DOL 

and OSC can take additional steps to communicate the outcome of USERRA claims. The 

customer satisfaction survey asks 18 questions of claimants about their customer 

experience with DOL and OSC, including the thoroughness of the investigation and clarity of 

written and oral communication. Both agencies said they would consider modifying their 

USERRA claims processing if they identify areas or trends from reviewing the survey results 

that require changes.

 9

One OSC claimant who responded to the customer satisfaction survey did not respond to this question. 
Page 6 GAO-12-860R Veterans’ Reemployment Rights

• Both agencies have documented the steps they take to ensure the validity and reliability of 

the performance data to be reported during the demonstration project in line with the 

recommendation from our assessment of the demonstration project’s design. Based on our 

assessment of the data—namely customer satisfaction survey data, cost data, and casetracking data—we found that the performance data that both agencies report is sufficiently 

reliable for the purposes of evaluating relative performance during the demonstration 

project.

When reviewing DOL and OSC cost data, we found a number of errors related to compiling 

the data that the agencies had to address. While DOL and OSC described the steps they 

take to review the cost data entered by staff, neither agency has established and 

documented procedures for checking the compilation of the data when reporting it during the 

demonstration project. Such procedures may help DOL and OSC identify errors when 

reporting cost data in the future, as the cost accounting systems at DOL and OSC are 

relatively new and both agencies reported the cost data to us for the first time during this 

assessment. In addition, when reviewing data from OSC’s case tracking system, we found a 

number of discrepancies and errors in the data including cases that were missing certain 

data elements or were entered incorrectly. Both DOL and OSC identified the issues causing 

these errors, corrected the issues in their data systems to ensure reliable data going 

forward, and provided us with updated and corrected data during our assessment.

See enclosure I for a more detailed discussion of our analysis.

Conclusions

Both DOL and OSC have established methods and procedures that should allow them to report 

comparable and reliable performance data for the demonstration project, as required by the 

VBA and in accordance with our recommendations on the demonstration project’s design. 

However, DOL and OSC could take additional steps to improve data integrity beyond what we 

recommended in our assessment of the demonstration project’s design in June 2011. For 

example, after reviewing the customer satisfaction survey data, DOL and OSC may want to 

consider additional steps to increase the response rate and address any potential survey 

response bias. In addition, for the cost accounting systems, DOL and OSC could establish and 

document procedures for compiling and reporting the cost data during the demonstration 

project. These changes would increase the value of the data when evaluating relative 

performance and would ensure data reliability going forward with the demonstration project. In 

subsequent assessments of the demonstration project, we plan to evaluate the performance 

data in depth as DOL and OSC continue to collect and track data.

Recommendations for Executive Action

We recommend that the Secretary of Labor direct the Assistant Secretary for Veterans’ 

Employment and Training, and that the Special Counsel, take the following two actions:

• To ensure that customer satisfaction survey data provides value when reviewing the relative 

performance of DOL and OSC during the demonstration project, DOL and OSC should, 

working with OPM, (1) consider additional efforts to increase the response rate, such as but 

not limited to additional follow-ups, contacting the claimant via other modes, or notifying the 

claimant of the survey initially when investigating the claim, and (2) conduct a nonresponse 

analysis to account for any response bias in the survey data.
Page 7 GAO-12-860R Veterans’ Reemployment Rights

• To ensure that both agencies present reliable cost data for USERRA demonstration project 

cases going forward, DOL and OSC should establish and document procedures for 

checking the compilation of cost data when they report it during the demonstration project.

Agency Comments and Our Evaluation

We provided a draft of this report to the Special Counsel and the Secretary of Labor for their 

review and comment. In written comments, which are included in enclosure II, the Special 

Counsel neither agreed nor disagreed with our recommendations but discussed actions that it is 

taking to address the recommendations. In commenting on our recommendation to ensure that 

customer satisfaction survey data provides value, OSC said it is collaborating with DOL on 

efforts to increase the response rate for the customer satisfaction survey and to conduct a 

nonresponse analysis. In commenting on our recommendation to establish and document 

procedures for checking the compilation of cost data when they report it, OSC said it is 

reviewing its procedures for compiling and reporting cost data during the demonstration project. 

OSC also stated that it is committed to making any necessary changes to ensure the 

demonstration project satisfies Congress’s goals.

In addition to providing comments on our two recommendations, OSC shared its views on the 

relative resources available at each agency and noted that our report did not address relative 

resources or staffing levels at DOL and OSC. OSC stated that for the first 6 months of the 

period covered by our report, it did not have funding to support its increased USERRA mission 

requirements and that it is important to consider resources when assessing the relative 

performance of DOL and OSC. As we describe in this report, the performance data presented in 

this interim assessment cover only 9 months and not the overall results of the 36-month 

demonstration project. The data presented cover the number of cases received and resolved 

favorably and average processing times in the investigation phase between August 9, 2011, and 

May 9, 2012, but we do not make any conclusions about the relative performance of DOL and 

OSC from the data in this report. In subsequent assessments of the demonstration project, we 

plan to evaluate the performance data, including capacity at each agency, in depth as DOL and 

OSC continue to collect and track data.

In written comments, which are included in enclosure III, the Deputy Assistant Secretary for

Veterans’ Employment and Training neither agreed nor disagreed with our recommendations 

but discussed actions that DOL plans to take to implement the recommendations.

In commenting on our recommendation to consider additional efforts to increase the response 

rate of the customer satisfaction survey and to conduct a nonresponse analysis to account for 

any response bias in the survey data, DOL said it has discussed with OPM options for 

increasing the response rate of the customer satisfaction survey and conducting an analysis of 

the characteristics of the claimants who did not respond to the survey to determine if there is a 

nonresponse bias. DOL also said that since the customer satisfaction survey methodology must 

be consistent at both DOL and OSC, DOL will coordinate with OSC regarding any changes it 

makes to increase the response rate and to account for nonresponse bias.

In commenting on our recommendation to establish and document procedures for checking the 

compilation of cost data, DOL said it will initiate internal audits on a quarterly basis when 

compiling the cost data into report format. In addition, each quarter, management and 

investigative staff will review the report for any inconsistent or questionable data and any 

identified data issues will be addressed, corrected, and reported each quarter as necessary.
Page 8 GAO-12-860R Veterans’ Reemployment Rights

We will send copies of this report to the Secretary of Labor and to the Special Counsel, and 

other interested parties. This report will also be available at no charge on GAO’s website at 

http://www.gao.gov. 

If you have any questions on this report, please contact me at (202) 512-2717 or 

jonesy@gao.gov. Contact points for our offices of Congressional Relations and Public Affairs 

may be found on the last page of this report. Key contributors to this are listed in Enclosure IV

Yvonne D. Jones

Director

Strategic Issues

Enclosures –4 
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Enclosure I: Briefing Slides
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Enclosure II: Comments from the Office of Special Counsel
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Enclosure III: Comments from the Department of Labor
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Enclosure IV: GAO Contact and Staff Acknowledgments

GAO Contact

Yvonne D. Jones, (202) 512-2717 or jonesy@gao.gov

Staff Acknowledgments

In addition to the contact listed above, key contributors to this report were Trina V. Lewis, 

Assistant Director; Jason Vassilicos, Analyst-In-Charge; Gerard Burke; Dean Campbell; Karin 

Fangman; Shannon Finnegan; Sharon Miller; Melanie Papasian; Cynthia Saunders; and 

Gregory Wilmoth.
Page 41 GAO-12-860R Veterans’ Reemployment Rights

Related GAO Products

Veterans’ Reemployment Rights: Steps Needed to Ensure Reliability of DOL and Special 

Counsel Demonstration Project’s Performance Information. GAO-11-312R. Washington, D.C.: 

June 10, 2011.

Servicemember Reemployment: Agencies Are Generally Timely in Processing Redress 

Complaints, but Improvements Needed in Maintaining Data and Reporting. GAO-11-55. 

Washington, D.C.: October 22, 2010.

Military Personnel: Improvements Needed to Increase Effectiveness of DOD’s Programs to 

Promote Positive Working Relationships between Reservists and Their Employers.

GAO-08-981R. Washington, D.C.: August 15, 2008.

DOD Financial Management: Adjudication of Butterbaugh Claims for the Restoration of Annual 

Leave or Pay. GAO-08-948R. Washington, D.C.: July 28, 2008.

Military Personnel: Federal Agencies Have Taken Actions to Address Servicemembers’ 

Employment Rights, but a Single Entity Needs to Maintain Visibility to Improve Focus on Overall 

Program Results. GAO-08-254T. Washington, D.C.: November 8, 2007.

Military Personnel: Considerations Related to Extending Demonstration Project on 

Servicemembers’ Employment Rights Claims. GAO-08-229T. Washington, D.C.: 

October 31, 2007.

Military Personnel: Improved Quality Controls Needed over Servicemembers Employment 

Rights Claims at DOL. GAO-07-907. Washington, D.C.: July 20, 2007.

Office of Special Counsel Needs to Follow Structured Life Cycle Management Practices for Its 

Case Tracking System. GAO-07-318R. Washington, D.C.: February 16, 2007.

Military Personnel: Additional Actions Needed to Improve Oversight of Reserve Employment 

Issues. GAO-07-259. Washington, D.C.: February 8, 2007.

Military Personnel: Federal Management of Servicemember Employment Rights Can Be Further 

Improved. GAO-06-60. Washington, D.C.: October 19, 2005.

U.S. Office of Special Counsel’s Role in Enforcing Law to Protect Reemployment Rights of 

Veterans and Reservists in Federal Employment. GAO-05-74R. Washington, D.C.: 

October 6, 2004.

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