Military Personnel: Improved Quality Controls Needed over Servicemembers' Employment Rights Claims at DOL
Published: 2007-07-20T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) protects the employment and reemployment rights of federal and nonfederal employees who leave their employment to perform military service. The Department of Labor (DOL) investigates and attempts to resolve claims filed by servicemembers, and if not successful, DOL is to inform the federal claimants that they may request to have their claims referred to the Office of Special Counsel (OSC). Under a demonstration project, from February 8, 2005, through September 30, 2007, OSC is authorized to receive and investigate certain USERRA claims, with DOL continuing its investigative role for others. As required by Pub. L. No. 108-454, this report describes the (1) processes, (2) outcomes, and (3) major changes during the demonstration project. GAO selected a random sample of cases from DOL's and OSC's databases and traced data for selected elements from the electronic files to source case files.
section_title: What GAO Found
paragraphs: Since the start of the demonstration project on February 8, 2005, both DOL and OSC have had policies and procedures for receiving, investigating, and resolving USERRA claims against federal executive branch employers, with DOL investigating the ones from claimants with even-number social security numbers, and OSC those from claimants with odd social security numbers as well as those with related allegations of prohibited personnel practices. Under the demonstration project, DOL's process for investigating USERRA claims remains unchanged: DOL uses a nationwide network of over a hundred investigators from offices in every state. Under the demonstration project, OSC has instituted a centralized approach for investigating USERRA claims, with a single office of about half a dozen investigators and attorneys in its Washington, D.C., headquarters. Data for reporting outcomes were not reliable at either agency. At DOL, inaccurate data were included in the agency's annual report to Congress, which could adversely affect Congress's ability to assess how well federal USERRA claims are processed and whether changes are needed in the future. GAO also found that DOL did not consistently notify claimants concerning the right to have their claims referred to OSC for further investigation or to bring their claims directly to the Merit Systems Protection Board. Citing GAO's preliminary findings, in December 2006, DOL officials required each region to revise its guidance regarding notifying claimants in the closure letter of their rights. GAO found that for the period of its review--February 8, 2005, through September 30, 2006--DOL received a total of 166 unique claims, although 202 claims were recorded as opened in DOL's database. Duplicate, reopened, and transferred claims accounted for most of this difference. During a review of a random sample of DOL's case files to assess the reliability of DOL's data, GAO found the closed dates in DOL's database, which it uses to report to Congress on the number and percentage of claims it closes within 90, 120, and 365 days, were not reliable. From the start of the demonstration project, through September 30, 2006, OSC received 269 claims and took an average of 115 days to process these claims. The closed dates in OSC's case tracking system were sufficiently reliable. Three primary changes have occurred in federal employees' USERRA claims' processing since the demonstration project. First, two agencies now investigate claims from federal employees using two different models for investigations. Second, both DOL and OSC officials said cooperation and communication between the two agencies on claims has increased under the demonstration project, in turn raising awareness of issues related to servicemembers who are federal employees. Finally, technological enhancements have occurred, including an enhancement to DOL's database enabling the electronic transfer of information between agencies, which began in October 2006.

section_title: Letter
paragraphs: The Uniformed Services Employment and Reemployment Rights Act of  1994 (USERRA) protects the employment and reemployment rights of  federal and nonfederal employees who leave their employment to perform  military or other uniformed service. USERRA also prohibits  discrimination in employment against individuals because of their  uniformed service, obligation to perform service, or membership or  application for membership in the uniformed services. USERRA further  prohibits employer retaliation against any individual who engages in  protected activity under USERRA, regardless of whether the individual has  performed service in the uniformed services. USERRA applies to a wide  range of employers, including federal, state, and local governments as well  as private sector firms. This report focuses on servicemembers who are  employees of, prior employees of, and applicants to federal executive  branch agencies.
Under USERRA, an employee of or applicant to a federal executive branch  agency 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. If DOL’s VETS cannot resolve the claim,  DOL is to inform claimants that they may request to have their claims  referred to the Office of Special Counsel (OSC), an independent  investigative and prosecutorial agency with the primary mission of  protecting the employment rights of federal employees and applicants for  federal employment. OSC determines whether the evidence of referred  claims is sufficient to resolve the claimants’ USERRA allegations and, if so,  seeks voluntary corrective action from the involved agency or initiates  legal action against the agency before the Merit Systems Protection Board  (MSPB).
Under a demonstration project established by the Veterans Benefits  Improvement Act of 2004 (VBIA), from February 8, 2005, through  September 30, 2007, OSC is granted authorization to receive and  investigate claims and seek corrective action for individuals whose social  security numbers end in odd numbers. Claims by individuals whose social  security numbers end in even numbers are to be investigated by VETS,  with the referral process to OSC for these claims remaining unchanged.  Under the demonstration project, OSC is also authorized to handle any  USERRA claim brought by the USERRA claimant where OSC has authority  to handle a related prohibited personnel practice claim. In addition, VBIA  reinstated the requirement that the Secretary of Labor in consultation with  the U.S. Attorney General and the Special Counsel prepare and transmit a  USERRA annual report to Congress on, among other matters, the number  of USERRA claims reviewed by DOL along with the number of claims  referred to the Department of Justice or OSC. The annual report is also to  address the nature and status of each claim and to state “whether there are  any apparent patterns of violation.”
Furthermore, VBIA mandates that the Comptroller General of the United  States conduct periodic evaluations of the demonstration project and  submit to Congress a report on these evaluations. We briefed you on our  overall findings concerning the demonstration project on March 28, 2007,  and this report provides additional details. Our objectives for the report  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.
To describe DOL’s and OSC’s policies and procedures for processing  federal employees’ USERRA claims under the demonstration project, we  reviewed relevant documentation and interviewed knowledgeable DOL  and OSC officials. To identify the number of federal employees’ USERRA  claims that DOL and OSC received and the outcomes of these claims,  including average processing time, we reviewed and analyzed data  downloaded from VETS’s database, the USERRA Information Management  System, and OSC’s case tracking system, OSC 2000. This report covers  the period from the start of the demonstration project on February 8, 2005,  through fiscal year 2006. We also assessed the reliability of selected data  elements on federal employee claims from VETS’s database and OSC’s  case tracking system by tracing a statistically random sample of data to  case files from the start of the demonstration project on February 8, 2005,  through July 21, 2006. Unless otherwise stated in the report, the data were  sufficiently reliable for the purposes of our review. To identify the extent  to which changes have occurred in federal employee USERRA claims’  processing since the demonstration project began, we reviewed USERRA  and VBIA, how USERRA claims of federal executive branch employees  and applicants for employment were processed before the demonstration  project, and how such claims were being processed under the  demonstration project by DOL and OSC. We also interviewed  knowledgeable DOL and OSC officials. We conducted our review in  Washington, D.C., from May 2006 through May 2007 in accordance with  generally accepted government auditing standards.
subsections: section_title: Background
paragraphs: Before the demonstration project, VETS was authorized to investigate all  USERRA claims filed against federal executive branch agencies as well as  claims against state and local governments and private sector employers.  Under the demonstration project, VETS is authorized to investigate claims  filed against federal executive agencies by servicemembers with social  security numbers ending in even numbers; its role in handling other  nonfederal USERRA claims remains unchanged. In addition, under the  demonstration project, OSC is authorized to investigate and seek  corrective action for USERRA claims against federal executive agencies  from servicemembers whose social security numbers end in odd numbers.  Also, under the demonstration project, OSC is authorized to handle any  USERRA claim filed against federal executive branch agencies where the  claimant also brings a related prohibited personnel practice claim—that is,  a “mixed claim.”
When a claimant with a social security number that ends in an odd digit  submits a claim to VETS, VETS sends the claim information to OSC either  electronically or via facsimile, depending on whether the claim was filed  electronically or in hard copy. VETS also forwards OSC the claim  information on all mixed claims. Similarly, when a claimant with a social  security number that ends in an even digit submits a claim to OSC, OSC  sends an e-mail notification and the file to VETS headquarters and informs  the claimant of the transfer of the claim to VETS.
OSC’s responsibility under USERRA for conducting independent reviews  of certain claims after they are investigated by VETS remained unchanged  during the demonstration project. For those claims VETS investigates and  is unsuccessful in resolving, a claimant employed by a federal executive  agency may request to have his or her USERRA claim referred to OSC.  Before sending the referred claim to OSC, VETS prepares a memorandum  of referral, which it sends with the investigative file to a VETS regional  office for review; the regional office conducts a review and sends the file  to a DOL regional Office of the Solicitor, which prepares a legal analysis of  the claim and then refers the claim to OSC. OSC reviews the case file, and  if satisfied that the evidence is sufficient to resolve the claimant’s  allegations and that the claimant is entitled to corrective action, OSC  begins negotiations with the claimant’s federal executive branch employer.
According to OSC, if an agreement for full relief via voluntary settlement  by the employer cannot be reached, OSC may represent the  servicemember before MSPB. If MSPB rules against the servicemember,  OSC may appeal the decision to the U.S. Court of Appeals for the Federal  Circuit. In instances where OSC finds that claims do not have merit, it  informs servicemembers of its decision not to represent them and that  they have the right to take their claims to MSPB without OSC  representation. Figure 1 depicts USERRA claims’ processing under the  demonstration project.
In October 2005, we issued a report that reviewed the extent to which the  four USERRA coordinating agencies—DOL, OSC, and the Departments of  Defense and Justice—(1) had data that indicate the level of compliance  with USERRA, (2) conducted educational outreach, and (3) addressed  servicemember complaints. In February 2007, we issued a report that  assessed the status of the Department of Defense’s effort to capture  reservists’ employer data, the four USERRA coordinating agencies’  processes to track and address reservists’ USERRA claims, and the  agencies’ efforts to track reservists’ USERRA claims related to disabilities  incurred while on active duty.
section_title: DOL and OSC Both Had Policies and Procedures for Processing USERRA Claims during the Demonstration Project
paragraphs: Within their different organizational structures, both DOL and OSC had  policies and procedures for receiving, investigating, and resolving claims  and, for DOL, referring claims to OSC.
subsections: section_title: Organizational Structure
paragraphs: DOL’s responsibility concerning servicemembers’ claims for USERRA  rights and benefits is carried out primarily through the efforts of VETS,  which is led by an assistant secretary supported by staff in a national  office, six regions, and offices in every state. A VETS official said that in  fiscal year 2006, of 189 VETS investigators authorized around the country  to conduct USERRA investigations, 115 were assigned as primary  investigators on USERRA claims during fiscal year 2006. The remaining 74  investigators include regional administrators and management who were  authorized to investigate USERRA claims but were not assigned to any.  VETS investigators also have responsibilities concerning a federal law  requiring that preference be given to veterans in federal hiring and  retention during reductions in force. VETS investigators are required to  complete three courses: one on the basics of USERRA law, one on  advanced investigative techniques, and one on veterans’ preference issues,  which includes a section on prohibited personnel practices. In addition, in  fiscal year 2006, VETS designated 7 senior investigators who are to  conduct investigations, assist investigators, and review the work of  investigators in their six respective regions and the national office.
To ensure consistency and understanding of relevant legal issues between  offices and organizations, an official from DOL’s Office of the Solicitor  said that the Office of the Solicitor conducts a monthly conference call  with the regional Solicitors’ Offices in which officials from OSC and the  Department of Justice take part. According to the senior investigator from  VETS’s national office, the senior investigators also conduct a monthly  conference call and hold quarterly meetings in one of the regional offices  around the country and invite participation from the Office of the  Solicitor, the Department of Justice, OSC, and the Department of  Defense’s Employer Support of the Guard and Reserve, which provides  informal assistance in resolving conflicts arising from an employee’s  military commitment before a formal claim is filed with VETS or OSC.
Along with their USERRA investigation and mediation responsibilities,  which according to VETS officials take on average about one-third of  VETS investigators’ time, investigators conduct briefings to educate  employers (federal and nonfederal) and servicemembers (at mobilizations  and demobilizations) about USERRA requirements and responsibilities. In  addition, they handle service-related employment and reemployment  questions that are directed to their offices. According to VETS officials,  after VETS provides technical assistance, including education and  outreach briefings as well as informal requests for information, to  servicemembers informally, many servicemembers decide not to file  formal claims. In addition, after providing such assistance, VETS also  encourages servicemembers to go to the Department of Defense’s  Employer Support of the Guard and Reserve to try and resolve a concern  through informal resolution. According to VETS’s technical assistance  logs, in fiscal year 2006, VETS received 7,044 telephone and 1,584 written  (including e-mail) inquiries and conducted 1,088 presentations and  briefings.
OSC uses a centralized approach for processing USERRA claims, under  the demonstration project, in its Washington, D.C., headquarters and has a  single individual (an attorney)—the USERRA Unit Chief—responsible for  data entry, review, and oversight of the investigation, analysis, resolution,  and prosecution of all USERRA claims. OSC established a USERRA Unit at  its headquarters in January 2005 to investigate, mediate, and, as necessary,  litigate USERRA and other federal employment rights claims involving  servicemembers. OSC’s USERRA Unit currently consists of the Unit Chief,  three investigators, and three attorneys. According to OSC officials, the  members of the USERRA Unit spend most of their time on USERRA  claims, but they also handle other prohibited personnel practice claims  brought by servicemembers and concerning servicemember issues.  According to OSC, all new USERRA Unit members are provided with two  structured USERRA training sessions. In addition, OSC’s USERRA Unit  Chief stated that he meets on a weekly basis with each unit member to  discuss the status of his or her investigations and analyses, and the entire  team meets on a biweekly basis (e.g., to discuss changes in the law,  investigative techniques, and other issues that may affect the operations of  the unit). OSC USERRA staff also have provided off-site education and  outreach to federal agencies (e.g., human resources specialists and  attorneys) about USERRA, including a seminar at the annual Federal  Dispute Resolution Conference and a basic and advanced USERRA course  at the Judge Advocate General’s Legal Center and School in  Charlottesville, Virginia.
section_title: Receiving Claims
paragraphs: A servicemember can file a formal USERRA claim against his or her  civilian employer directly with DOL using a VETS Form 1010 electronically  at https://vets1010.dol.gov or can file a signed printed copy of the claim  form with the Secretary of Labor by mail or fax. Servicemembers also can  file indirectly through the VETS electronic USERRA Advisor link, which  contains an interactive question-and-answer component to answer  questions for potential claimants on employee and employer rights and  responsibilities and provides access to the electronic VETS Form 1010.  Electronic filing of claims directly enters the claimant’s information into  VETS’s E-filing database first and then into VETS’s database, records the  date the claim was received, and sends an automatic response to the  claimant. According to a DOL official, an individual other than the  claimant may file a claim on behalf of a servicemember when the  individual has a signed power of attorney that complies with the laws of  the state where the claim is filed. The official said that although this  happens rarely, it could happen when a servicemember is deployed; then a  claim could be filed, for example, by a spouse or veteran’s service  organization.
Any person may contact OSC via mail, e-mail, telephone, fax, OSC’s  Internet hotline, or in person to seek technical assistance about USERRA  or to file a claim. OSC will open an investigation once it receives  information that allows OSC to determine whether it has jurisdiction over  the allegation and to begin a focused inquiry—a form is not required to file  a claim. The claimant may print out OSC-Form 14 and mail or fax it. The  claimant also may save it as a portable document format file and e-mail it,  as the form is not available for direct electronic filing. According to an  OSC official, OSC is awaiting the outcome of the demonstration project  before implementing electronic filing of USERRA claims. According to the  USERRA Unit Chief, anyone may report USERRA violations on a  claimant’s behalf, but under the Privacy Act, the claimant must sign a  consent form, which identifies three levels of confidentiality—none,  partial, or complete—for OSC to open a case in its case tracking system. In  addition, according to OSC, USERRA Unit investigators and attorneys may  obtain the claimant’s consent telephonically and document the telephone  conversation, which is standard operating practice for all of OSC’s  investigative divisions.
section_title: Investigating Claims
paragraphs: Claims to be reviewed by VETS are assigned to an investigator located  close to the claimant’s worksite. According to a DOL official, each region  has its own procedures for assigning an investigator to a claim, and  regional administrators are responsible for determining the workload for  their investigators. Unlike claims that are filed electronically, claims that  are submitted to VETS by hard copy must be entered into VETS’s database  by an investigator once an investigation is begun. VETS’s USERRA  Operations Manual states that a case should be opened immediately upon  receipt of a signed VETS Form 1010, unless the written information does  not provide enough data to establish eligibility; in that case, the  investigator should contact the claimant for clarification before opening a  case.
At OSC, after entering the claim in OSC’s case tracking system, the  USERRA Unit Chief assigns the claim to either an investigator, or an  attorney, or both, depending on the claim’s complexity. The USERRA Unit  Chief stated that investigators or attorneys are assigned according to their  individual qualifications and caseloads. At the time a claim is opened in  OSC’s case tracking system, the USERRA Unit Chief sends an  acknowledgement letter and consent form (if a signed form has not been  received) to the claimant. When the claimant’s original submission does  not include enough information to begin an investigation, the USERRA  Unit Chief may ask relevant questions in the acknowledgment letter. When  the claimant’s original submission raises issues over which OSC may not  have jurisdiction, the acknowledgment letter is to inform the claimant of  other potential avenues of redress.
VETS investigators and OSC investigators or attorneys are first to review  the claim information. VETS’s USERRA Operations Manual states that  initially the investigator is to identify the alleged violation and the  remedies available; identify the applicable section(s) of the statute;  determine whether the claimant is eligible for USERRA assistance; and if  not, open and close the case file and notify the claimant of the result.  Although OSC’s USERRA Unit Operations Manual states that the  assigned investigator or attorney is to perform a similar initial review of  the case, according to OSC, in everyday practice the USERRA Unit Chief  performs this task during his initial review of the file when entering the  claim into OSC’s case tracking system and so informs the assigned  investigator or attorney of his assessments.
Concerning evidence gathering, both agencies’ general policy is to contact  the employer during the investigation with the consent of the claimant.  VETS requests the employer’s position regarding the allegations of the  claim and documentation to support that position. According to the  VETS’s USERRA Operations Manual, investigations seek evidence to  determine whether the case has merit and generally include interviews  and document reviews to develop evidence admissible in court. Within 30  days of starting a formal investigation, the investigator is to develop a  written investigative plan, which among other things, is to identify any  evidence needed to make a factual determination; the means through  which evidence is to be obtained (e.g., interview, records review); and all  steps necessary to arrive at a determination of the merits of the claim.  According to OSC, a typical USERRA investigation includes sending  written questions to and requesting documents of the employer and, upon  receipt of such evidence, interviewing relevant witnesses and subjects.  Additionally, according to OSC’s USERRA Unit Operations Manual,  where appropriate, OSC also requests copies of e-mail communications  between relevant witnesses.
Concerning legal analysis, an official from DOL’s Office of the Solicitor  said that if an investigator has a question or needs legal assistance,  attorneys from the Office of the Solicitor are available for consultations at  any time. The official said that attorneys from the Office of the Solicitor  are only assigned when contacted by VETS investigators or when a  regional office is contacted by the public. He added that an attorney from  the Office of the Solicitor is assigned to every case that is a referral, which  involves a legal review of a completed case file, but not to every case  during an investigation. According to OSC’s USERRA Unit Chief, a legal  analysis is conducted during each USERRA investigation with  investigators and attorneys using a collaborative team approach  throughout the investigation.
section_title: Resolving Claims
paragraphs: According to the VETS’s USERRA Operations Manual, a VETS  investigator may hold a case resolution conference at any stage of the  claims process when the investigator believes it may help the claimant and  employer reach agreement, and should be attempted when the  investigation has been completed and letters and telephone calls are  unable to resolve the case. Once the VETS investigator completes the  investigation and arrives at a determination on the claim, the investigator  is to contact the claimant, discuss the findings, and send a letter to the  claimant notifying him or her of VETS’s determination. VETS’s USERRA  Operations Manual does not specify the date an investigator should  record in VETS’s database as the date the investigation is closed. VETS  officials told us that the date closed in VETS’s database should be the date  of the closure letter, or if VETS requests additional information, the date  by which the claimant needed to provide the information to avoid, for  example, a determination of “no merit.”
According to OSC’s USERRA Unit Operations Manual, once the OSC  investigator or attorney completes an investigation, he or she is to discuss  his or her determination with the USERRA Unit Chief. If the USERRA Unit  Chief agrees that further investigation is not warranted on a case not  having merit, the investigator or attorney is to submit for the USERRA  Unit Chief’s review and approval the summary of investigation, which  includes the closure letter detailing the factual and legal basis of the  determination and a rights letter providing information to the claimant  about his or her right to file a USERRA appeal with MSPB. According to  OSC, when a case has merit and cannot be resolved through discussions  with the agency, the investigator or attorney may prepare a demand letter  for the Unit Chief’s review. The demand letter explains the factual and  legal bases for OSC’s determination and the relief being sought from the  agency and is viewed by OSC as antecedent to formal litigation. OSC’s  USERRA Unit Operations Manual states that the assigned investigator or  attorney is to provide the closing information to the USERRA Unit Chief to  enter in OSC’s case tracking system but does not specify the date to be  used when closing a case. OSC’s USERRA Unit Chief said that the date  entered into OSC’s case tracking system reflecting when the case is  officially closed is the same as the date the closure letter is sent to the  claimant.
subsections: section_title: Quality Assurance/Oversight
paragraphs: VETS has no internal process to routinely review investigators’  determinations before claimants are notified of them. According to a VETS  official, there is no requirement that a supervisor review investigators’  determinations before notifying the claimant of the determination. Instead,  VETS’s policy of reviewing claims prior to notifying claimants of the  determinations is limited to a random sample of 10 percent of all open  claims at the regional level, to ensure that policies and procedures have  been followed and all available witnesses have been interviewed, and to  any claim that takes more than 90 days, to process to determine why the  claim is still open. VETS officials said any claim still open after 90 days  appears on a “red flag report” and is to be reviewed by the senior  investigator for the region in which the claim is being processed. Other  reviews take place after the claim has been closed. According to VETS  officials, senior investigators are to review a random sample of 25 percent  of closed claims at the regional level. Legal reviews by a DOL regional  Office of the Solicitor only occur if a claimant requests to have his or her  claim referred to OSC.
OSC’s policy is that the USERRA Unit Chief, an attorney, provides ongoing  guidance, reviews all work products in a case, and reviews and approves  the letter notifying the claimant of OSC’s determination and, in a case with  merit, the demand letter to the agency, prior to sending the letters.
section_title: Request for Referral of Claims from VETS to OSC
paragraphs: Under USERRA and the demonstration project, when VETS is  unsuccessful in resolving servicemembers’ claims, DOL is to notify  servicemembers who filed claims against federal executive branch  agencies that they may request to have their claims referred to OSC or file  directly with MSPB. A VETS official estimated that about 7 percent of  claimants ask for their claims to be referred to OSC or, for nonfederal  servicemembers, the Department of Justice.
section_title: After Claimant Requests a Referral, Two Additional Reviews at DOL Take Place
paragraphs: According to VETS’s USERRA Operations Manual, after a claimant  requests a referral to OSC in writing, the VETS investigator is to prepare a  report of investigation called the memorandum of referral, which provides  a description of the case and supporting documentation. This triggers two  additional sequential reviews at DOL. The memorandum and the case file  are then sent to a VETS regional office, which is to review the  memorandum of referral to ensure that the investigation is thorough and  that the documentation in the file is accurate and sufficient. According to  VETS’s USERRA Operations Manual, if the regional office review finds  the investigation is incomplete, it is to return the file to the VETS  investigator and request additional investigation on specific points. When  the regional office is satisfied as to the scope and quality of the  investigation, the regional office is to prepare a memorandum and forward  it and the case file for review by a DOL regional Office of the Solicitor to  assess the claim’s legal basis and prepare a separate analysis before  sending the file to OSC. A VETS regional office and a DOL regional Office  of the Solicitor separately make recommendations on the merits of the  claim.
Even if DOL finds that a claim has no merit, DOL is required by USERRA  to send a federal sector claim to OSC if the claimant requested a referral.  According to an official from the Office of the Solicitor, this office’s review  is not required by law or regulation, but the practice is established through  memorandums of understanding with OSC and, for nonfederal claims, the  Department of Justice. The official said that both agencies have indicated  that they find the practice useful. He added that if OSC did not find the  analyses to be valuable, the memorandum of understanding could be  renegotiated so as to revise or discontinue the existing process. According  to OSC’s USERRA Unit Chief, OSC reviews the Office of the Solicitor’s  letter of referral, which OSC finds useful for providing a summary of a  case, but does not rely on the Office of the Solicitor’s legal analysis.  Instead, OSC does an independent legal review of the case as required by  USERRA to determine whether it is reasonably satisfied that the claimant  is entitled to the rights and benefits sought.
section_title: Under the Demonstration Project, Data Limitations at Both DOL and OSC and Inconsistent Notifications at DOL
paragraphs: We found data limitations at both agencies that made claim outcome data  unreliable. At DOL, data limitations affected DOL’s annual report to  Congress. We also found that DOL did not consistently notify claimants  concerning the right to have their claims referred to OSC for further  investigation or to bring their claims directly to MSPB if DOL did not  resolve their claims.
subsections: section_title: VETS’s Data Limitations Affect the Determination of the Number of Claims Processed, Outcomes, and Average Processing Time
paragraphs: Under VBIA, DOL is to prepare an annual report to Congress to include,  among other matters, the number of claims reviewed, the number of cases  referred to the U.S. Attorney General or OSC, and the nature (type) and  status of each case. Specifically, VETS provides information on the  number and percentage of claims opened by type of employer, issues  raised—such as discrimination or refusal to reinstate—outcome, and total  time to resolve.
The number of claims shown in VETS’s database exceeded the number of  unique claims VETS processed. Data from VETS’s database showed that  from the start of the demonstration project through September 30, 2006,  DOL received 202 claims. We found, however, that of these 202 claims,  VETS investigated a total of 166 unique claims during this time. The  difference of 36 claims was a result of  reopened claims for the same claimant being recorded as separate  claims,   duplicate filings (i.e., filed by the same claimant within 3 days and then    claims transferred to OSC after being opened in VETS’s database (i.e.,  those with odd social security numbers and allegations of prohibited  personnel practices),    claims originally opened prior to the demonstration project, and    one veterans’ preference claim erroneously opened as a USERRA  claim.
Of the 166 unique claims investigated by VETS from the start of the  demonstration project through September 30, 2006, it closed 155, or 93  percent of them. The remaining 11 claims were still being investigated as  of September 30, 2006.
Because of our finding concerning the accuracy of the number of unique  claims in VETS’s database during the demonstration project, we reviewed  the data DOL reported in its most recent USERRA annual report to  Congress for fiscal year 2005. We found that DOL overstated the number  of claims filed against federal executive branch agencies because it did not  account for duplicate, reopened, transferred, and erroneously opened  cases, resulting in an inaccurate number of investigations opened and  closed. Specifically, DOL reported that it opened 146 claims involving  federal employers, reflecting the number of claims in VETS’s database for  fiscal year 2005. Our analysis, however, showed that of the reported 146  claims, 117 were claims actually investigated by VETS in fiscal year 2005.
Additionally, during our review of a random sample of 54 VETS case files  to assess the reliability of VETS’s data, we found the closed dates in  VETS’s database did not match the date contained in the closure letter to  the claimant in 22 of 52 claims reviewed. According to VETS officials, the  date closed in VETS’s database should agree with the date of the closure  letter, or if VETS requests additional information, the date by which the  claimant needed to provide the information to avoid, for example, a  determination of “no merit.” For those claims where there was not a  match, the difference in the number of days between the actual closed  date in the closure letter and in VETS’s database averaged 67 days.  Moreover, in nearly all claims where the closed dates in VETS’s database  did not match the date in the closure letter, the closed date in VETS’s  database preceded the date in the letter. VETS’s USERRA Operations  Manual is silent on the date to be used for the official closure of an  investigation in VETS’s database, which could have contributed to some of  the inaccuracies we found in closed dates.
Because DOL reports annually to Congress on the number and percentage  of claims it closed within 90, 120, and 365 days, such inaccuracies in the  number of claims reported and the closed dates also affect the quality of  information reported to Congress on the time it takes VETS to process  claims. VETS senior officials indicated that they had identified problems  similar to those we found in a particular region concerning inaccurate  closed dates. Citing our preliminary findings, in December 2006, one  region issued a memorandum instructing investigators to make the closed  date in VETS’s database match the date of the closure letter to the  claimant.
Because the closed dates entered in VETS’s database were not sufficiently  reliable, we could not use the dates for the time VETS spent on  investigations in the database to accurately determine DOL’s average  processing time. Instead, we used the correct closed dates from the case  files in our random sample and statistically estimated the average  processing time for VETS’s investigations from the start of the  demonstration project through July 21, 2006—the period of our sample.  Based on the random sample, there is at least a 95 percent chance that  VETS’s average processing time for investigations ranged from 53 to 86  days.
Additionally, during our review of case files, we found that the closed  code, which VETS uses to describe the outcomes of USERRA claims (i.e.,  claim granted, claim settled, no merit, withdrawn) was not sufficiently  reliable for reporting specific outcomes of claims. Therefore, the  information that DOL reports to Congress on the number and percentage  of claims by outcome is not reliable.
section_title: DOL Did Not Consistently Notify Claimants of Right of Referral
paragraphs: At the conclusion of an investigation when VETS is not successful in  resolving the claim, USERRA requires VETS to notify servicemembers  with claims against federal executive branch agencies of their right to have  their claims referred to OSC or to bring their claims directly to MSPB.  According to a VETS official, claimants should be notified in writing of the  right to referral. For the 54 claims in our sample of VETS’s case files, we  found that in the 28 claims VETS was not successful in resolving (i.e.,  claims not granted or settled), VETS failed to notify claimants of the right  to referral in the closure letter in half of these claims. VETS correctly  notified five claimants and notified others of only some of their options.  In addition, VETS incorrectly advised some servicemembers of a right  applicable only to nonfederal claimants—to have their claims referred to  the Department of Justice or to bring their claims directly to federal  district court. Table 1 shows the extent to which claimants were notified  in the closure letter of their right to have their unsuccessful claims  referred.
Two possible reasons for VETS’s failure to notify servicemembers in  writing of their rights include VETS’s lack of an internal review process  and the inconsistent guidance provided to investigators in its USERRA  Operations Manual. As discussed earlier, we found that VETS has no  internal process to routinely review claim determinations prior to  informing claimants of such determinations or closing the claim.
Additionally, VETS failed to provide clear guidance in its USERRA  Operations Manual on when to notify claimants of their right to referral,  the content of the notification, or any guidance on notifying claimants of  their right to bring their claims directly to MSPB. For example, one  chapter instructs investigators to notify the claimants of their right to  referral if there is no voluntary compliance by the employer, regardless of  whether claim has merit, but in another instructs investigators to advise  claimants of their right only if the claimant does not concur with the  determination. Further, the sample closure letters to claimants contained  in the manual are not consistent regarding notifying claimants; those that  contain a notification advise claimants of a right to request referral to the  U.S. Attorney General, a right applicable to nonfederal claimants.  Additionally, VETS’s USERRA Operations Manual does not instruct  investigators to notify claimants of their right to bring their claims directly  to MSPB. VETS senior officials indicated that they had identified problems  similar to those we found in a particular region concerning the lack of  consistent notification of the right to referral. It is not clear what course of  action VETS took at that time.
Following a briefing on our preliminary findings in December 2006, a  VETS official told us that because VETS’s USERRA Operations Manual  had not clearly articulated when and how to notify claimants of their  rights, some investigators were not aware that claimants should be  notified in writing at the end of the investigation. Citing our preliminary  findings, VETS officials required each region to revise its guidance  concerning the notification of rights. One region issued a memorandum  providing specific additional guidance to investigators to notify claimants  in the closure letter of their right to a referral or to bring their claims  directly to MSPB and provided revised sample closure letters for federal  and nonfederal USERRA claims, which other regions were to use as a  model. Each region will have its own guidance until VETS completes  revisions to its USERRA Operations Manual, which VETS senior  investigators began updating January 2007. The manual is expected to be  issued in October 2007.
section_title: Claims Processed by OSC under the Demonstration Project
paragraphs: From the start of the demonstration project through fiscal year 2006, OSC  received 269 USERRA claims and closed 176, or 65 percent of them. The  remaining 93 claims were still being investigated as of September 30, 2006.  More than 75 percent of these claims included only allegations of USERRA  violations. The remaining were mixed claims—allegations of both  USERRA violations and a related prohibited personnel practice. Table 2  shows the number and type of claims OSC received and closed during the  demonstration project.
Table 3 shows OSC’s average processing time overall and for both  USERRA only and mixed claims.
We assessed the reliability of selected data elements in OSC’s case  tracking system in an earlier report. We found the closed dates in OSC’s  case tracking system to be sufficiently reliable; however, the corrective  action data element, which would be used for identifying the outcomes of  USERRA claims, was not sufficiently reliable for reporting specific  outcomes of USERRA claims.
section_title: Claims Referred Took Several Months to Process
paragraphs: We separately reviewed those claims that VETS investigated but could not  resolve and for which claimants requested referral of their claims to OSC.  For these claims, two sequential DOL reviews take place: A VETS regional  office prepares a report of the investigation and makes a recommendation  on the merits, and a regional Office of the Solicitor conducts a separate  legal analysis and also makes a recommendation on the merits. From  February 8, 2005, through September 30, 2006, 11 claimants asked VETS to  refer their claims to OSC. Of those 11 claims, 6 claims had been reviewed  by both a VETS regional office and a regional Office of the Solicitor and  sent to OSC, and 5 were still at DOL. The Office of the Solicitor  recommended litigation on 1 of the claims sent to OSC. For those 6 claims,  it took from initial investigation through the regional office and regional  Office of the Solicitor reviews an average of 247 days or about 8 months  before the Office of the Solicitor sent the claims to OSC. Because of the  data limitations concerning the reliability of investigations’ closed dates in  VETS’s database, it was not possible to isolate the length of time for the  two additional reviews.
Of the six referred claims that OSC received from DOL during the  demonstration project, OSC declined to represent the claimant in five  claims as of September 30, 2006, and was still reviewing one of them. OSC  took an average of 61 days to independently review the claims and  determine if the claims had merit and whether to represent the claimants.
section_title: Three Primary Changes Have Occurred since the Demonstration Project Began
paragraphs: Three primary changes have occurred in federal employees’ USERRA  claims’ processing since the start of the demonstration project. First, two  agencies now receive and process claims with two different models for  investigating USERRA claims from federal executive branch employees—a  nationwide approach by VETS that gives much authority to individual  investigators in resolving and closing claims and a centralized approach by  OSC that has a single individual entering claims into the case tracking  system, providing guidance, and reviewing all claims. Second, both DOL  and OSC officials have said that since the demonstration project began,  cooperation and communication concerning USERRA claims has  increased, in turn raising awareness of the issues related to  servicemembers who are federal executive branch employees. Finally,  technological enhancements have occurred during the demonstration  project. For example, an enhancement to VETS’s database enables the  electronic transfer of information between agencies. In addition, VETS  implemented electronic filing, which eliminates the need for initial data  entry by staff.
subsections: section_title: Two Models Used for Processing Claims
paragraphs: As we discussed earlier, under the demonstration project, two different  models have been used for investigating USERRA claims from federal  employees. Table 4 identifies characteristics of DOL’s and OSC’s models  for processing USERRA claims.
section_title: Communication Concerning USERRA Claims Has Increased since the Demonstration Project Began
paragraphs: Under the demonstration project, both OSC and VETS officials said that  cooperation and communication concerning USERRA claims has  increased between them. Increased communication has in turn, according  to these officials, raised the awareness among these two agencies of the  issues related to servicemembers who are federal employees. For  example, OSC and DOL officials mentioned working together to decide  how to process certain types of frequently occurring cases concerning  leave issues affecting some servicemembers. OSC also has been meeting  monthly with VETS and Office of the Solicitor officials, and OSC  participates in the Office of the Solicitor’s monthly telephone conference  calls to discuss selected claims they are working on, offer legal advice, and  discuss what is happening during each agency’s investigative process.  Officials from the Office of the Solicitor and OSC said that these meetings  and telephone conferences have been very useful and that during them  they discuss issues related to federal employees and how the  demonstration project is being handled by DOL and OSC.
section_title: Technological Enhancements Have Improved USERRA Claims’ Processing since the Demonstration Project Began
paragraphs: Following a recommendation in our October 2005 report, VETS  implemented an enhancement to its database in October 2006 to enable  the four USERRA coordinating agencies—DOL, OSC, and the Departments  of Defense and Justice—to electronically transfer case information  between agencies. Officials from each of the USERRA coordinating  agencies are also able to see such claim information as whether a case is  open or closed, which agency is currently addressing it, and how long it  took to resolve. As such, the database enhancement grants OSC limited  access to demonstration project data in VETS’s database, including the  ability to view summary data for federal employer cases opened by VETS  during the demonstration project period (e.g., case numbers, employer,  open and closed dates, and issues concerning a case) and allows OSC to  enter case data for demonstration project cases OSC has opened since  October 1, 2006.  According to OSC’s USERRA Unit Chief, to the extent  consistent with the consent provided by claimants, he has been entering  information on demonstration project claims into VETS’s database.  Officials from each coordinating agency are able to produce a report  containing aggregate data on the claims over which they have jurisdiction.  For investigations opened by VETS, only VETS has visibility over a claim’s  history, from its submission to VETS until it is resolved. The other  coordinating agencies have visibility over only those claims that were  opened by or referred to them. According to VETS officials, when the  enhancement was being developed, the Office of the Solicitor determined  that because of the sensitive nature of the information that the enhanced  VETS’s database may contain, except for VETS, full access to all data  fields for a claim would be limited to those cases within each agency’s  jurisdiction.
Another technological enhancement by VETS is the implementation of  electronic filing. A VETS official told us that from July 18, 2005, the date  on which electronic filing of USERRA claims at VETS became available,  through September 30, 2006, about 39 percent of USERRA claims from  servicemembers employed by federal executive branch agencies were filed  with VETS electronically. As we said earlier, electronic filing of claims  directly enters the information into VETS’s E-filing database first and then  into VETS’s database, records the date the claim was received, and sends  an automatic response to the claimant. This eliminates the need for initial  data entry by staff and avoids the introduction of error when staff  manually enter data. Also, when a claimant files electronically, VETS’s  database sends an automatic message to OSC to determine whether any  prohibited personnel practice cases have been filed by the claimant.
In addition, according to OSC, although VBIA did not require that OSC  modify its existing system, OSC enhanced its case tracking system to  maintain demonstration project data that would be useful in tracking  USERRA claims. For example, on October 1, 2006, OSC began tracking a  claimant’s status as veteran, disabled veteran, reservist, guardsman, or  other and the claimant’s allegation, such as veteran discrimination,  disabled veteran discrimination, reservist reemployment, and reprisal.  According to OSC, maintaining this information will enable OSC to  prepare reports showing the number and the types of allegations filed by  various claimant groups.
section_title: Conclusion
paragraphs: At a time when the nation’s attention is focused on those who serve our  country, it is important that policymakers have reliable information about  the extent to which employment and reemployment rights are protected  for applicants to and employees of the federal government who leave their  employment to perform military or other uniformed service. While we did  not assess the quality of the claims investigations or the correctness of  outcomes, we believe that DOL’s controls and oversight of the claims  process need to be improved. DOL does not consistently notify  servicemembers of their right to have their claims referred to OSC or to  file directly with MSPB if DOL is not successful in resolving their claims,  which may have prevented some servicemembers from seeking further  review of their claims. Moreover, VETS’s database does not contain  sufficiently reliable data for purposes of our review on the number of  cases, outcomes, and the time to investigate claims. Additionally, DOL has  a lengthy two-phase review process that has servicemembers waiting  months before the referral of their claims takes place.
We note that VETS uses the same process, including the same procedures,  practices, investigators, and database, for federal and nonfederal USERRA  claims. The same kinds of problems that we found in our review of federal  USERRA claims may be occurring for nonfederal claims.
Citing our preliminary findings, in December 2006, VETS officials took  action to rectify some of the identified shortcomings. While we view these  actions as positive and a step in the right direction toward clarifying steps  that VETS investigators are to take, VETS still lacks uniform policies and  quality controls to help ensure that servicemember employment rights are  protected and that Congress receives accurate information.
section_title: Recommendations for Executive Action
paragraphs: We recommend that the Secretary of Labor direct the Assistant Secretary  for Veterans’ Employment and Training to implement the following four  actions:  Incorporate into the formal update to VETS’s USERRA Operations  Manual the guidance from a VETS regional office December 2006  memorandum on the procedures that investigators should follow  concerning the notification of a claimant’s right to referral and the  appropriate closed date in VETS’s database.
Require all VETS investigators to undergo mandatory training on the  procedures to be followed concerning notification of a claimant’s right  to referral to help ensure that servicemembers know their rights under  USERRA.
Develop and implement an internal review mechanism for all  unresolved claims before claimants are notified of determinations and  claims are closed to help ensure adherence to all procedures and  standards.
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, to ensure that accurate information on  USERRA claims’ processing is available to DOL and to Congress.
section_title: Agency Comments and Our Evaluation
paragraphs: We provided a draft of this report to the Secretary of Labor and the Special  Counsel for their review and comment. In written comments, which are  included in appendix II, the Assistant Secretary for Veterans’ Employment  and Training agreed with our recommendations and discussed actions that  DOL is taking to address the recommendations.
In written comments, which are included in appendix III, the Special  Counsel disagreed with our statement that OSC’s corrective action data  element, which OSC uses to describe the results or outcomes of USERRA  claims, was not reliable. He also notes that the report does not address the  differences between the results and time taken to get results by OSC  versus DOL. As stated in our report, during our review, OSC and DOL  provided us with data on USERRA claims processed, but because the data  element for outcomes was not sufficiently reliable in either agency’s  database, we do not report on outcomes. Also in his written comments,  the Special Counsel references a December 2006 letter to us in which he  expressed disagreement with a methodology used in calculating the time  an investigative file is with DOL’s Office of the Solicitor. The December  letter refers not to the methodology in this report but rather to a  preliminary methodology used in another GAO engagement. Our  methodology for this engagement, which includes a discussion of the time  an investigative file is with DOL’s Office of the Solicitor, is discussed in  this letter and in more detail in appendix I.
In addition, both the Assistant Secretary for Veterans’ Employment and  Training and the Special Counsel provided their views on the  demonstration project and their respective agency’s role in processing  USERRA claims.
We will send copies of this report to the Secretary of Labor, the Special  Counsel, and other interested parties. Copies will be made available to  others upon request. This report will also be available at no charge on  GAO’s Web site at http://www.gao.gov.
If you have questions about this report, please contact me on (202) 512- 9490 or at stalcupg@gao.gov. Contact points for our Offices of  Congressional Relations and Public Affairs may be found on the last page  of this report. Staff who made major contributions are listed in appendix  IV.
section_title: Appendix I: Objectives, Scope, and Methodology
paragraphs: Our objectives were to (1) describe the Department of Labor’s (DOL) and  Office of Special Counsel’s (OSC) policies and procedures for processing  federal employees’ Uniformed Services Employment and Reemployment  Rights Act of 1994 (USERRA) claims under the demonstration project; (2)  identify the number of federal employees’ USERRA claims that DOL and  OSC received 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.
subsections: section_title: Objective 1: Describe DOL’s and OSC’s Policies and Procedures for Processing Federal Employees’ USERRA Claims under the Demonstration Project
paragraphs: To describe DOL’s and OSC’s policies and procedures for processing  federal employees’ USERRA claims under the demonstration project, we  reviewed applicable laws, including USERRA and the Veterans Benefit  Improvement Act of 2004, and regulations; agency policies, memorandums  of understanding, and correspondence between DOL and OSC; DOL and  OSC USERRA claims’ processing manuals; other internal guidance and  program information; and DOL’s annual USERRA reports to Congress. We  also interviewed knowledgeable DOL and OSC officials. At DOL, we  interviewed officials from its Veterans’ Employment and Training Service  (VETS) National Office, VETS’s Atlanta Regional Office, and DOL’s Office  of the Solicitor. At OSC, we interviewed the USERRA Unit Chief.
section_title: Objective 2: Identify the Number of Federal Employees’ USERRA Claims that DOL and OSC Received and the Outcomes of These Claims, Including Average Processing Times
paragraphs: To identify the number of federal employees’ USERRA claims that DOL  and OSC received and the outcomes of these claims, including average  processing times, we obtained information on all the USERRA claims filed  against federal executive branch agencies that DOL and OSC received  from February 8, 2005—the beginning of the demonstration project— through September 30, 2006. We excluded claims from our analysis  identified by DOL and OSC as being brought by Transportation Security  Administration security screeners and supervisory security screeners  because they are not covered by USERRA, specifically 7 claims at DOL  and 10 claims at OSC.
subsections: section_title: Data Reliability
paragraphs: We also assessed the reliability of data on federal employee claims from  VETS’s database, the USERRA Information Management System, and  OSC’s case tracking system, OSC 2000, by tracing a statistically random  sample of data to case files. Concerning the reliability of VETS’s data, for  selected data elements including open date, closed date, closed code,  agency name, regional office action date, and Office of the Solicitor action  date, we compared the electronic data in VETS’s database to the source  case files for 54 randomly selected cases received between February 8,  2005, and July 21, 2006. We assessed reliability by the amount of  agreement between the data in VETS’s database and the source case files.  In addition, for each selected data element, we excluded claims if  information was missing from the case file, thus preventing a comparison  between data in VETS’s database and the case file. We did not evaluate the  accuracy of the source case files for the data elements reviewed. For data  elements pertaining to time (i.e., open date and closed date), we  considered the date a match if the date in VETS’s database was the same  or within 1 day of the date reflected in the case file.
We determined that data contained in the closed date and closed code  fields were not reliable for purposes of this study. Specifically, we found  that the closed dates in VETS’s database did not match a closed date  indicated in the case files in 22 of 52 claims. We considered the closed  date a match if the date in VETS’s database was the same as either the  date of the closure letter, the date indicated in the closure letter by which  a claimant had to respond to a request for information, or the date stated  in the closure letter indicating when the investigation was closed. Thus,  we are 95 percent confident that between 31 and 53 percent of the closed  dates in VETS’s database would not match between the VETS’s database  and the source case files. Regarding the closed code, which VETS uses to  describe the outcomes of USERRA claims (i.e., claim granted, claim  settled, no merit, withdrawn) we are 95 percent confident that as many as  16 percent of the outcomes would not match between the VETS’s database  and the source case files. While our analysis of VETS’s database showed  that about one-fifth of claimants received partial or full relief, we found  that this data element was not sufficiently reliable for reporting specific  outcomes of claims. We determined that the other data elements—open  date, agency name, regional office action date, and Office of the Solicitor  action date—necessary to answer our objectives were sufficiently reliable  for purposes of this review.
Concerning the reliability of OSC’s data, in an earlier report 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. We reviewed  the selected data elements for a statistically random sample of USERRA  claims and determined the corrective action code, which OSC uses to  describe the outcomes of USERRA claims, was not sufficiently reliable.  Specifically, 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. While our analysis of OSC’s data showed that about a  quarter of claimants received full relief, this data element is not  sufficiently reliable for reporting outcomes of claims. We determined that  the other data elements—date received, date closed, agency name, case  type, case subtype, and action office—were sufficiently reliable for  purposes of this review.
section_title: Determining the Number of Claims Received
paragraphs: We reviewed data from VETS’s database from February 8, 2005, though  September 30, 2006, to determine the number of claims processed by DOL  during the demonstration project. In doing so, we found that VETS’s  database records as separate claims (1) duplicate filings by the same  claimant, (2) reopened claims for the same claimant, and (3) claims  transferred to OSC. To determine the number of unique claims opened by  VETS, we  removed claims opened prior to the demonstration project;  removed claims transferred to OSC after being opened in VETS’s  database (i.e., those with odd social security numbers and allegations  of related prohibited personnel practices);  removed duplicate filings (i.e., those opened within 3 days of another  claim brought by the same claimant and subsequently closed, while the  original claim remained open);  removed one veterans’ preference claim identified by VETS as being  inadvertently opened as a USERRA claim; and    combined and counted as one claim original and reopened claims  where both were opened during the demonstration project.
Because the number of claims shown in VETS’s database exceeded the  number of unique claims VETS investigated, we concluded that the data in  VETS’s database were not sufficiently reliable for determining the number  of claims. As a result of the steps we took to identify the number of unique  claims DOL received, the number of claims received went from 202 shown  in VETS’s database from February 8, 2005, through September 30, 2006, to  166—the number we used for purposes of this review.
Because of our concerns over the reliability of the number of claims in  VETS’s database for the demonstration project, we also analyzed the  number of claims in VETS’s database for fiscal year 2005 and compared it  to the number of claims filed against federal executive branch agencies  that DOL reported in its fiscal year 2005 USERRA Annual Report to  Congress. To determine the number of unique claims processed by VETS  in fiscal year 2005 that were filed against federal executive branch  agencies, we used a methodology similar to the one used to determine the  number of unique claims during the demonstration project. We again  found that DOL had not removed duplicate, reopened, transferred, and  erroneously opened federal USERRA claims. Specifically, DOL reported  that it opened 146 claims involving federal employers for fiscal year 2005,  reflecting the number of claims involving federal employers in VETS’s  database for fiscal year 2005. Our analysis, however, showed that of the  reported 146 claims, 117 unique claims were investigated by VETS in fiscal  year 2005.
To determine the number of claims processed by OSC during the  demonstration project, we analyzed data from OSC’s case tracking system  for claims alleging only violations of USERRA and claims alleging both  violations of USERRA and related prohibited personnel practices.
section_title: Determining Average Processing Time for DOL
paragraphs: Because the closed dates entered in VETS’s database were not sufficiently  reliable, we could not use the average of the time VETS spent on  investigations reflected in its database to accurately determine DOL’s  average processing time. Instead, to determine average processing time,  we used the correct closed dates from the case files in our random sample  and (1) estimated average processing time for VETS investigations from  the start of the demonstration project through July 21, 2006—the period of  our sample—and (2) calculated the actual total DOL average processing  time for those claims referred to OSC.
subsections: section_title: VETS Investigations
paragraphs: To determine VETS’s average processing time, we used the data from the  sample of cases because the closed dates for all claims in VETS’s database  were not sufficiently reliable for our purposes. Where the closed date in  VETS’s database did not match the date in the closure letter, we used the  correct dates obtained from our review of the hard copy case files and  generated estimates from the sample of cases, which were opened and  closed from February 8, 2005, through July 21, 2006—the period of our  sample. Based on the random sample, we are 95 percent confident that  VETS’s average processing time for conducting investigations was  between 53 and 86 days. Because our sample contained only one case that  received the two additional reviews at DOL after the VETS investigation  was closed, (i.e., by a VETS’s regional office and the Office of the  Solicitor) before being referred to OSC, we could not reliably use this  same process to estimate the average processing time for all of DOL’s  USERRA claims’ processing.
section_title: DOL’s Referrals to OSC
paragraphs: We separately reviewed those claims that VETS investigated but could not  resolve and for which claimants requested referral of their claims to OSC.  From February 8, 2005, through September 30, 2006, for 16 claims in the  VETS’s database, claimants asked VETS for referral to OSC. Of those 16  claims, 5 were reopened (i.e., claims brought by the same claimant), which  we combined with their original claims, and 5 were still being reviewed at  DOL. The other 6 claims had not been reopened. Thus, 11 unique claims  were to be referred to OSC. Of the 11 unique claims, 6 had been reviewed  by both a VETS regional office and the Office of the Solicitor as of  September 30, 2006 (3 of the reopened claims and 3 of the others). To  calculate the average processing time for DOL to process claims that were  referred through DOL to OSC using actual dates, we used the average  processing time of these 6 claims. We based this average on the number of  days that it took DOL to process a claim from the date that VETS opened  the investigation through the date that the Office of the Solicitor  completed its review and made a recommendation to OSC. Because we  found the closed dates of VETS investigations entered in VETS’s database  were not sufficiently reliable for our purposes, we could not determine  how long it took the VETS regional office and the Office of the Solicitor to  process referrals following VETS investigations.
For each of the three claims that were reopened, there were two open  dates. Because we determined that the closed dates in VETS’s database  were unreliable, we could not accurately account for the time these claims  had been closed before they were reopened. To compensate for this, we  calculated the processing time for these three reopened claims in two  ways: (1) using the open date of the first claim and (2) using the open date  of the reopened, or second claim, in VETS’s database. We then calculated  two averages using each of the processing time calculations for the three  claims. For the remaining three claims that were referred but not closed  and reopened, there was only one open date to use in calculating  processing time, which was used in both calculations of average  processing time for the six referrals. The difference in the average  processing time between these two calculations was about 31 days. For  purposes of this report, we use the approximate midpoint obtained from  each of the calculations—about 247 days or 8 months.
section_title: Determining Average Processing Time for OSC
paragraphs: To determine the average processing time for all OSC claims, USERRA  only, and mixed claims, using the data in OSC’s database, we calculated  the number of days from and including the date that the claim was opened  through the date that the claim was closed.
section_title: Notification of Rights
paragraphs: During our review of a sample of VETS’s case files, for claims that were  not successfully resolved, we reviewed the extent to which VETS notified  claimants in closure letters of their right to have their claims referred to  OSC or to bring them directly to MSPB using a private attorney. We  defined “not successfully resolved” as those claims that did not have a  closed code in VETS’s database of “claim granted” or “claim settled.” As a  result, we excluded from our analysis of the 54 claims in the sample those  claims with a closed code in VETS’s database of claim granted or claim  settled. We also excluded those claims that we were able to identify (1) as  subject to the Defense Finance and Accounting Service administrative  procedure to resolve their Butterbaugh claims, (2) a veterans’ preference  claim that was inadvertently opened as a USERRA claim, (3) a file of a  duplicate claim, or (4) those withdrawn by the claimant. In total, we  included 28 closure letters from our random sample of 54 claims in our  review.
section_title: Objective 3: Identify Changes to Federal Employees’ USERRA Claims’ Processing since the Demonstration Project Began
paragraphs: To identify changes to federal employees’ USERRA claims’ processing  since the demonstration project began, we reviewed applicable law,  regulations, and legislative histories. We also reviewed relevant  documentation about claims’ processing prior to the demonstration  project and compared that to relevant documentation from DOL and OSC  regarding claims’ processing during the demonstration project. We also  interviewed knowledgeable DOL and OSC officials and representatives  from veterans’ service organizations, including The American Legion,  Military Officers Association of America, National Guard Association of  the United States, Paralyzed Veterans of America, Reserve Enlisted  Association, Reserve Officers Association, Veterans of Foreign Wars of the  United States, and Vietnam Veterans of America.
We conducted our work from May 2006 to May 2007 in accordance with  generally accepted government auditing standards.
section_title: Appendix II: Comments from the Department of Labor
section_title: Appendix III: Comments from the Office of Special Counsel
section_title: Appendix IV: GAO Contact and Staff Acknowledgments
subsections: section_title: Acknowledgments
paragraphs: In addition to the individual named above, Belva Martin, Assistant  Director; James Ashley; Karin Fangman; Tamara F. Stenzel; Kiki  Theodoropoulos; Jason Vassilicos; Michael R. Volpe; and Gregory H.  Wilmoth made key contributions to this report.