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
Published: 2007-11-08T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: Since September 11, 2001, the Department of Defense (DOD) has mobilized more than 500,000 National Guard and Reserve members. As reservists return to civilian life, concerns exist about difficulties with their civilian employment. The Uniformed Services Employment and Reemployment Rights Act (USERRA) of 1994 protects the employment rights of individuals, largely National Guard and Reserve members, as they transition back to their civilian employment. GAO has issued a number of reports on agency efforts to carry out their USERRA responsibilities. DOD, the Department of Labor (DOL), the Department of Justice (DOJ), and the Office of Special Counsel (OSC) have key responsibilities under the act. GAO was asked to discuss the overall process that the agencies use to implement USERRA. Specifically, this testimony addresses (1) organizational accountability in the implementation of USERRA and (2) actions that the agencies have taken to improve their processes to implement USERRA. For this testimony, GAO drew from its most recent reports on USERRA.
section_title: What GAO Found
paragraphs: USERRA defines individual agency roles and responsibilities; however, it does not designate any single individual or office as accountable for maintaining visibility over the entire complaint resolution process. From the time informal complaints are filed with DOD's Employer Support of the Guard and Reserve through final resolution of formal complaints at DOL, DOJ, or OSC, no one entity has visibility over the entire process. The four agencies have generally been responsive to GAO's recommendations to improve the implementation of USERRA--on outreach to employers, data sharing and trend information, reporting to Congress, and the internal review of DOL's investigators' determinations of USERRA claims.

section_title: Letter
paragraphs: We are pleased to be here today to discuss four federal agencies’ activities  regarding the Uniformed Services Employment and Reemployment Rights  Act (USERRA) of 1994. USERRA protects the employment and  reemployment rights of millions of federal and nonfederal employees who  leave their civilian 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.
Mr. Chairman, in 2004 you recognized the issues associated with USERRA,  particularly in light of the significant number of National Guard and  Reserve members serving in Iraq and Afghanistan who would be  demobilized, returned to their civilian jobs, and possibly called back to  duty. Our testimony today is particularly relevant because more than  500,000 reservists have been called to duty since September 11, 2001.
Our testimony is based on work that we have conducted for you and in  response to congressional mandates. Since 2002, we have issued several  reports on federal agency efforts to carry out USERRA responsibilities.  The four agencies primarily responsible for assisting servicemembers  under USERRA are the Department of Defense (DOD), the Department of  Labor (DOL), the Department of Justice (DOJ), and the Office of Special  Counsel (OSC). In our reports, we have made numerous  recommendations to these agencies concerning the implementation of  USERRA.
Our testimony is based on our three most recent reports on USERRA and  examining whether DOD, DOL, DOJ, and OSC have effectively carried out  their USERRA responsibilities. Our testimony addresses (1)  organizational accountability in the implementation of USERRA and (2)  actions that the agencies have taken to improve their internal processes to  implement USERRA.
As noted, this testimony is based on our prior work. For that work, we  reviewed applicable laws, guidance, regulations, and operations manuals.  To assess how efficiently and effectively DOD, DOL, DOJ, and OSC  address USERRA complaints, we collected, reviewed, and analyzed data  from a wide variety of sources (including the four federal agencies) and  interviewed responsible officials. We also reviewed DOD survey data and  conducted original analysis on these data. To identify progress made by  DOD in capturing employer information, we obtained and analyzed  reporting compliance data from DOD and its reserve components. Further,  we analyzed the number of disability complaints filed with DOD and DOL  between fiscal years 2004 and 2006. We found DOD’s civilian employment  information and Employer Support of the Guard and Reserve (ESGR)  databases to be of undeterminable reliability.
In our October 2005 report, we compared data obtained from DOJ and  OSC with those captured by DOL and, where available, we compared the  information in DOL’s USERRA Information Management System to  information from hard copy complaint files for accuracy. For our July  2007 report, we assessed the reliability of selected data elements on  federal employee complaints from DOL’s USERRA database by tracing a  statistically random sample of data to case files from February 8, 2005,  through July 21, 2006. We determined that these data were sufficiently  reliable, with the exception of certain data elements from DOL’s USERRA  database, which we note in this testimony. With respect to actions  agencies have taken in response to our recommendations, we discussed  the agencies’ progress with knowledgeable officials from DOL, ESGR, and  OSC. Our work on the above reports, as well as the work we conducted  for this statement, was performed in accordance with generally accepted  government auditing standards.
subsections: section_title: Background
paragraphs: The overall process used to implement USERRA is as follows.
Outreach and resolution of informal complaints. DOD and DOL share  responsibility for outreach—the education of servicemembers and  employers about their respective responsibilities under USERRA. Much of  DOD’s outreach is accomplished through ESGR, which performs most of  its work through over 4,000 volunteers. DOL conducts outreach through  its Veterans’ Employment and Training Service (VETS) investigators, who  are located nationwide. These investigators conduct briefings to educate  employers and servicemembers about USERRA requirements and  responsibilities and handle service-related employment and reemployment  questions that are directed to their offices.
Servicemembers who have USERRA-related issues with their employers  can file informal complaints with DOD’s ESGR. In our February 2007  report, we noted that nearly 10,000 informal complaints had been filed  with ESGR in fiscal years 2004 and 2005. A subgroup of ESGR’s specially  trained volunteers serve as impartial ombudsmen who informally mediate  USERRA issues that arise between servicemembers and their employers.
Formal complaints and prosecution. When ESGR ombudsmen cannot  resolve complaints informally, they notify servicemembers about their  options. Servicemembers can file a formal complaint with DOL or file  complaints directly in court (if it involves nonfederal employers) or the  Merit Systems Protection Board (if it involves federal executive branch  employers). Under a federal sector demonstration project established by  the Veterans Benefits Improvement Act of 2004, DOL investigates  complaints against federal executive branch agencies for individuals  whose social security numbers end in even numbers, and OSC is  authorized to directly receive and investigate complaints and seek  corrective action for individuals whose social security numbers end in odd  numbers.
When a servicemember files a formal complaint with DOL, one of VETS’s  115 investigators examines and attempts to resolve it. If VETS’s  investigators are unable to resolve servicemember complaints, DOL is to  inform servicemembers that they may request to have their complaints  referred to DOJ (for complaints against private sector employers or state  and local governments) or to OSC (for complaints against federal  executive branch agencies). Before complaints are sent to DOJ or OSC,  they are reviewed by a VETS regional office for accuracy and sufficiency  and by a DOL regional Office of the Solicitor, which assesses the legal  basis for complaints and makes an independent recommendation.
If DOJ or OSC determines that the complaint has merit, it will attempt to  resolve the complaint without litigation and, if unsuccessful, represent the  complainant in court (for those referred to DOJ) or before the Merit  Systems Protection Board (for those referred to OSC).
Figure 1 shows servicemembers’ options for obtaining federal assistance  with their USERRA complaints.
Agency databases and reporting requirement. Each of the four federal  agencies responsible for assisting servicemembers under USERRA  maintains an automated database with complaint information. Both DOD  and DOL have electronic complaint files that are stored in automated  systems with query capabilities.
The Secretary of Labor in consultation with the U.S. Attorney General and  the Special Counsel prepares and transmits a USERRA annual report to  Congress on, among other matters, the number of USERRA claims  reviewed by DOL, and during the current demonstration project by OSC,  along with the number of claims referred to DOJ or OSC. The annual  report is also to address the nature and status of each claim, state whether  there are any apparent patterns of violation of the USERRA provisions,  and include any recommendations for administrative or legislative action  that the Secretary of Labor, the U.S. Attorney General, or the Special  Counsel consider necessary to effectively implement USERRA.
section_title: No Single Agency Is Accountable for Maintaining Visibility over the Entire Complaint Resolution Process
paragraphs: Although USERRA defines individual agency roles and responsibilities, it  does not make any single individual or office accountable for maintaining  visibility over the entire complaint resolution process. In our October 2005  report, we noted that the ability of federal agencies to monitor the  efficiency and effectiveness of the complaint process was hampered by a  lack of visibility resulting, in part, from the segmentation of responsibility  for addressing complaints among multiple agencies. Moreover, from the  time informal complaints are filed with DOD’s ESGR through final  resolution of formal complaints at DOL, DOJ, or OSC, no one entity has  visibility over the entire process. We found that the agency officials who  are responsible for the complaints at various stages of the process  generally have limited or no visibility over the other parts of the process.  As a result, federal agencies have developed agency-specific output rather  than cross-cutting goals directed toward resolving servicemembers’  complaints. For example, agency goals address the complaint processing  times of each stage of the process, rather than the entire time that elapses  while servicemembers wait to have their complaints addressed.  Meanwhile, the servicemember knows how much time is passing since the  initial complaint was filed. In October 2005, we reported that more than  430 of the 10,061 formal complaints filed with DOL between October 1,  1996, and June 30, 2005, were closed and reopened and 52 complaints had  been closed and reopened two or more times. Our analysis of those 52  complaints showed that the processing times averaged about 3 to 4  months but the total elapsed times that servicemembers waited to have  their complaints fully addressed averaged about 20 to 21 months from the  time they first filed their initial formal complaints with DOL until the time  the complaints were fully addressed by DOL, DOJ, or OSC.
We have previously suggested and continue to believe that Congress  should consider designating a single individual or office to maintain  visibility over the entire complaint resolution process from DOD through  DOL, DOJ, and OSC. We believe this would encourage agencies to focus  on overall results rather than agency-specific outputs and thereby improve  federal responsiveness to servicemember complaints that are referred  from one agency to another. In response to this matter, in our 2005 report,  both DOL and OSC were supportive, and both agencies noted that they  had the expertise to oversee the USERRA complaint resolution process.  However, DOL stated that with the mandated demonstration project  ongoing, it would be premature to make any suggestions or  recommendations for congressional or legislative action until the project  has been completed. DOD and DOJ did not provide comments on this  matter.
section_title: Agencies Have Taken Action to Improve Information on Employers and Assistance to Servicemembers Under USERRA
subsections: section_title: Outreach
paragraphs: Integral to getting servicemembers the help they need is educating them  and their employers on their respective responsibilities under USERRA.  Since 2002, we have reported on DOD’s need to obtain complete and  accurate information on the civilian employers to better target its outreach  efforts. Accurate, complete, and current civilian employer information is  important to DOD to improve its ability to target outreach to employers, to  make informed decisions concerning which reservists should be called for  active duty to minimize the impact that mobilizations might have on  occupations such as law enforcement, and to determine how businesses  may be affected by reserve activation. As we recommended in our 2002  report, DOD implemented regulations that required the reporting and  collection of employer information for reserve personnel. Additionally,  DOD established compliance goals for these servicemembers. We noted in  our February 2007 report that the percentage of servicemembers reporting  employer information to DOD had increased, but most reserve  components had still not reached their compliance goals. In addition, we  found that employment data were not necessarily current because some  reservists were not aware of requirements to update their employer  information and the services had not established a formal mechanism to  remind reservists to update this personnel information as necessary to  reflect changes in their current employment.
To improve the reporting of National Guard and Reserve employment  information, we recommended that the Secretary of Defense direct the  Office of the Assistant Secretary of Defense for Reserve Affairs to  establish specific time frames for reservists to report their employment  data, set specific time frames for reserve components to achieve the  established compliance reporting goals, and direct the service components  to take action to ensure reporting compliance. In response to this  recommendation, DOD indicated at the time of our report that its current  policy on employer reporting established compliance goals. We noted in  our report that DOD needed to establish a new deadline by which  reservists must report their employer information to DOD and set specific  time frames for reserve components to achieve the established compliance  reporting goal. In addition, to encourage reservists to keep their employer  data current, we recommended that DOD instruct all military departments  to establish a formal review mechanism that would require all reservists to  review and update at least annually their reported employment-related  information. At the time of our February 2007 report, DOD was in the  process of revising its policy on civilian employer reporting to require an  annual review of reported employer information.
DOD provides USERRA outreach and education to servicemembers using  several mechanisms, including a toll-free information line and individual  and group briefings. DOD monitors the extent to which it reaches this  population and the occurrence of USERRA-related problems by including  questions on these areas in its Status of the Forces survey, which is  periodically conducted to identify issues that need to be addressed or  monitored. We noted in our 2005 report that survey questions offer the  potential to provide insight into compliance and employer support issues.  However, questions on the surveys vary from year to year and have not  always included those pertaining to USERRA compliance and employer  support. To gauge the effectiveness of federal actions to support USERRA  by identifying trends in compliance and employer support, we  recommended that the Secretary of Defense direct the Under Secretary of  Defense for Personnel and Readiness to include questions in DOD’s  periodic Status of Forces Surveys to determine  the extent to which servicemembers experience USERRA-related  problems; if they experience these problems, from whom they seek assistance; if they do not seek assistance, why not; and the extent to which servicemembers’ employers provide support beyond  that required by the law.
In response to this recommendation, DOD incorporated these additional  USERRA-related questions in its June 2006 Status of the Forces survey.
section_title: Data Sharing and Trend Identification
paragraphs: Because the resolution of servicemember complaints could involve  multiple federal agencies, it is important that the agencies be able to  effectively share and transfer information to efficiently process  servicemember complaints. In October 2005, we found that the automated  systems that DOD, DOL, DOJ, and OSC used to capture data about  USERRA complaints were not compatible with each other. As a result,  information collection efforts were sometimes duplicated, which slowed  complaint processing times. To increase federal agency responsiveness to  USERRA complaints, we recommended that DOD, DOL, DOJ, and OSC  develop a system to allow the electronic transfer of complaint information.  At the time of our report, DOL and OSC concurred with this  recommendation, DOJ did not provide comments, and DOD deferred to  the other agencies. We noted in our February 2007 report that DOL had  implemented an enhancement to its USERRA database in October 2006 to  enable the four USERRA coordinating agencies to electronically transfer  case information between agencies. The database enhancement allowed  DOD, DOL, DOJ, and OSC to access and update the status of cases using  the Internet and produce a report containing aggregate USERRA  complaint data on the cases over which they have jurisdiction. We further  noted in this report that, despite these enhancements to the USERRA  database to allow the electronic transfer of complaint information  between agencies, DOD only had visibility over those cases that originated  with informal complaints to DOD. Even though DOD shares responsibility  with DOL for USERRA complaints, DOD did not have access to all  USERRA complaint data, and we recommended that DOL provide these  data to DOD’s ESGR. In response to this recommendation, in October  2007, DOL provided DOD with the ability to view and download aggregate  information on all USERRA cases in its database.
In addition, in October 2005, we reported that when a complaint is  referred from DOL to OSC or DOJ, the agencies are unable to efficiently  process complaints because they are forced to create, maintain, copy, and  mail paper files to other DOL offices and to OSC and DOJ. To reduce  administrative burden and improve oversight of USERRA complaints  processing, we recommended that DOL develop a plan to reduce reliance  on paper files and fully adopt the agency’s automated complaint file  system. DOL concurred with this recommendation and, as a result, is  developing an electronic case record system, scheduled for completion in  October 2008, that will allow all agencies assigned to the case an  opportunity to review documents and add investigative notes or records.
To effectively identify trends in issues facing servicemembers, it is  important in a segmented complaint resolution process that the complaint  data generated by each of the federal agencies be sufficiently comparable.  In our February 2007 report, we noted that the complaint categories used  by each of the four agencies could not be uniformly categorized to reveal  trends in USERRA complaints. In particular, we noted that the complaint  data collected by DOD and DOL, the two agencies that see the highest  volume of cases, were not categorized in a way that is conducive to  meaningful comparison. Specifically, we found that the two agencies use  different categories to identify reservists’ USERRA complaints for issues  such as being refused job reinstatement, denied an appropriate pay rate, or  being denied vacation time. To allow for the analysis of trends in reporting  USERRA complaints, we recommended that DOD and DOL adopt uniform  complaint categories in the future that would allow aggregate trend  analysis to be performed across the databases. At the time of our report,  both DOD and DOL agreed with this recommendation. Since that time,  DOD and DOL have collaborated to identify common complaint categories  that will allow both agencies to match similar USERRA complaints.  According to officials from both DOD and DOL, these complaint  categories are expected to be pilot tested in fiscal year 2008.
As reservists continue to be exposed to serious injury in operations in Iraq  and Afghanistan, the ability to identify disability reemployment complaints  becomes more critical. However, we noted in our February 2007 report  that the four federal agencies responsible for assisting servicemembers  with USERRA complaints could not systematically record and track  disability-related complaints. Additionally, we found that these agencies  do not distinguish disability-related complaints from other types of  complaints for tracking and reporting purposes. For example, the  servicemember must indicate that the case involves a disability for it to be  classified as such, and these complaints may not be distinguishable from  any other types of complaints because a single USERRA complaint may  involve a number of issues that complicates the classification of the case  by the agency. Further, disability-related complaints are not identified  using consistent and compatible complaint categories. DOD classifies  USERRA disability-related complaints within three categories including  medical benefits, job placement, and time limits for reemployment, while  DOL uses one category, reasonable accommodation and retraining for  disabled, to classify USERRA disability-related complaints. To provide  agencies with better information about disability-related employment  complaints, we recommended that DOL develop a system for recording  and tracking these complaints and share it with the other agencies that  implement USERRA. DOL concurred with this recommendation at the  time of this report. According to DOL officials, DOL’s USERRA database  identifies disability claims, and the agency has recently provided DOD,  OSC, and DOJ with access to this system.
section_title: Information Reported to Congress
paragraphs: As previously mentioned, the Secretary of Labor is required to provide an  annual report to Congress that includes information on the number of  USERRA complaints reviewed by DOL, along with the number of  complaints referred to DOJ or OSC. We noted in our February 2007 report  that DOL’s report to Congress does not include information on informal  complaints filed with ESGR. Therefore the complaint data that DOL  reported to Congress for fiscal years 2004 and 2005 did not include 80  percent, or 9,975 of the 12,421 total informal and formal USERRA  complaints filed by reservists during that period. Without data from ESGR,  Congress has limited visibility over the full range of USERRA issues that  reservists face following deployment. Further, without these data,  Congress may lack the information for its oversight of reserve employment  matters. To gain a full perspective of the number and nature of USERRA  complaints filed by reservists in gaining reemployment upon returning  from active duty, we suggested that Congress consider amending the  reporting requirement to require DOL to include data from DOD’s ESGR  in its annual report to Congress. In response to this matter for  congressional consideration, Members of Congress are considering  changes to the legislation.
In addition to DOL’s report to Congress not reflecting informal USERRA  complaints, we identified data limitations in our July 2007 report that  affected the quality of information reported to Congress that could  adversely affect Congress’s ability to assess how well federal sector  USERRA complaints are processed and whether changes are needed.  DOL provides information in its annual report to Congress on the number  and percentage of complaints opened by type of employer, issues raised— such as discrimination or refusal to reinstate—outcome, and total time to  resolve. We found that the number of federal sector complaints shown in  DOL’s USERRA database from February 8, 2005, through September 30,  2006, exceeded the number of unique claims it processed during the  period of our review. Duplicate, reopened, and transferred complaints  accounted for most of this difference. Also, in our review of a random  sample of case files, we found  the dates recorded for case closure in DOL’s USERRA database did not  reflect the dates on the closure letters in 22 of 52 sampled complaints and the closed code, which DOL uses to describe the outcomes of USERRA  complaints (e.g., granted, settled, no merit, or withdrawn), was not  sufficiently reliable for reporting specific outcomes of complaints.
To ensure that accurate information on USERRA complaints’ processing is  available to DOL and to Congress, we recommended in our July 2007  report that the Secretary of Labor direct the Assistant Secretary of  Veterans’ Employment and Training to establish a plan of intended actions  with target dates for implementing internal controls to ensure that DOL’s  USERRA database accurately reflects the number of unique USERRA  complaints filed annually against federal executive branch agencies, the  dates those complaints were closed, and the outcomes of those  complaints. In response to our recommendation, DOL issued a memo from  the Assistant Secretary of Veterans’ Employment and Training in July 2007  instructing investigators to ensure that the closed date entered into DOL’s  USERRA database match the date on the closure letter to the  servicemember, and DOL conducted mandatory training on this memo  beginning in August 2007. Further, DOL officials told us that DOL’s fiscal  year 2007 annual report will count reopened complaints as a single  complaint if brought by the same individual, against the same employer,  and on the same issue.
section_title: Notification of Rights to Referral and Internal Reviews
paragraphs: We reported in July 2007 that in cases where servicemembers sought  assistance from DOL and the agency could not resolve the complaints,  DOL did not consistently notify servicemembers in writing of their right to  have their unresolved complaints against federal executive branch  agencies referred to OSC or to bring their claims directly to the Merit  Systems Protection Board. Specifically, our review of a random sample of  complaint files showed that DOL failed to notify servicemembers in  writing in half of the unresolved complaints and notified others of only  some of their options. In addition, we found that DOL’s USERRA  Operations Manual failed to provide clear guidance to its investigators on  when to notify servicemembers of their rights and the content of the  notifications. In July 2007, we also reported that DOL has no internal  process to routinely review investigators’ determinations before claimants  are notified of them and noted that this lack of review could have caused  DOL’s inconsistent practice of notifying servicemembers for their rights to  referral. We recommended that the Secretary of Labor direct the Assistant  Secretary for Veterans’ Employment and Training to (1) require VETS’s  investigators to undergo mandatory training on the procedures to be  followed concerning notification of rights to referral, (2) incorporate into  the formal update to DOL’s USERRA Operations Manual guidance  concerning the notification rights to referral, and (3) develop and  implement an internal review mechanism for all unresolved complaints  before servicemembers are notified of determinations and complaints are  closed.
Since that time, DOL has taken the following actions:  issued a memo in July 2007 from the Assistant Secretary for Veterans’  Employment and Training to regional administrators, senior investigators,  and directors concerning case closing procedure changes, including  standard language to use to ensure that servicemembers (federal and  nonfederal) are apprised of their rights;   began conducting mandatory training on the memo in August 2007;  incorporated the policy changes into the revised Manual, which according  to DOL officials is expected to be released in January 2008; and   according to DOL officials, beginning in January 2008, all claims are to be  reviewed before the closure letter is sent to the claimant.
These are positive steps. It is important for DOL to follow through with its  plans to ensure that clear and uniform guidance is available to all involved  in processing USERRA complaints.
Mr. Chairman, Senator Enzi, and Members of the Committee, this  concludes our remarks. We will be pleased to take questions at this time.
For further information regarding this statement, please contact Brenda  Farrell at 202-512-3604 or farrellb@gao.gov or George Stalcup at 202-512- 9490 or stalcupg@gao.gov. Contact points for our Offices of Congressional  Relations and Public Affairs may be found on the last page of this  testimony. Individuals making contributions to this testimony include  Laura Durland, Assistant Director; Belva Martin, Assistant Director; James  Ashley; Karin Fangman; K. Nicole Harms; Kenya Jones; Mae Jones; Ronald  La Due Lake; Joseph Rutecki; Tamara F. Stenzel; and Kiki  Theodoropoulos.
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