Servicemember Reemployment: Agencies Are Generally Timely in Processing Redress Complaints, but Improvements Needed in Maintaining Data and Reporting
Published: 2010-10-22T00:00:00

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 individuals who leave their employment to perform uniformed service. Concerned with the timeliness of USERRA complaint processing and data reliability of agency reports, Congress imposed timeliness requirements for the Department of Labor (DOL), Department of Justice (DOJ), and Office of Special Counsel (OSC) under the Veterans' Benefits Improvement Act of 2008 (VBIA 2008) and required agencies to submit quarterly reports to Congress on the extent of their compliance with the requirements. As required by VBIA, this report assesses whether the agencies (1) met VBIA timeliness requirements for USERRA complaint processing, and (2) submitted reliable and timely quarterly reports. GAO analyzed data in each agency's USERRA database, and the extent to which those data were consistent with the quarterly reports.
section_title: What GAO Found
paragraphs: DOL, DOJ, and OSC generally were timely in meeting VBIA 2008 deadlines to process complaints, but issues remain regarding notification of rights. Under VBIA 2008, DOL must complete its investigation within 90 days of receiving a complaint. If the complaint is not resolved and the servicemember requests to have the complaint referred, DOL must send the case to DOJ (if against a nonfederal employer) or OSC (if against a federal employer) within 60 days of receiving the request for referral. Within 60 days of receiving the case from DOL, DOJ, and OSC must make a decision on whether to represent the servicemember. Any of the three agencies may seek consent to extend the applicable deadline. GAO's analysis showed that DOL, DOJ, and OSC generally met the original or extended deadlines to process complaints. Although DOL does not maintain data in its USERRA database on notifying servicemembers of their USERRA complaint processing rights within 5 days of receiving the complaint, GAO estimated that in about 7 percent of the cases, DOL did not document notification of rights. Because VBIA 2008 does not require DOL to report on this requirement and DOL does not maintain and monitor such data, Congress and DOL cannot be assured that all servicemembers are adequately being informed of their USERRA process rights in accordance with VBIA 2008. According to DOJ, the 60-day statutory deadline does not apply to state employer cases. GAO's analysis showed that 6 of 12 cases against state employers took more than 60 days to process. Comparatively, 23 of 189 cases against private or local government employers exceeded the 60-day deadline. Therefore, servicemembers who are employed by state governments may not be receiving the same treatment in terms of timeliness that other servicemembers are receiving under USERRA. In addition, GAO's analysis showed that in 6 of 13 cases where the servicemember was involved in settlement negotiations and DOJ declined representation, DOJ notified the servicemember of its decision but continued to aid the parties with facilitating a settlement. VBIA 2008 does not require agencies to report on their time spent after making a decision on representation. For DOL, DOJ, and OSC, the data contained in the quarterly reports during the time of our review were generally consistent with our analysis. However, the three agencies did not use the same criteria for including the number of cases that exceeded or met the statutory deadline in their quarterly reports. DOL and DOJ were consistently late in submitting quarterly reports to Congress, by as much as 46 days for DOL and by as much as 40 days for DOJ. DOL does not always correct errors in its USERRA database after preparing its quarterly reports and therefore cannot ensure it has accurate, readily available data to monitor its performance in meeting USERRA requirements. DOJ does not have a standard, repeatable process to input USERRA data and produce its quarterly reports.
section_title: What GAO Recommends
paragraphs: GAO recommends that the three agencies use consistent reporting criteria and that the Attorney General and Secretary of Labor improve maintenance of data. Congress should consider amending USERRA to apply VBIA 2008 deadlines to state cases and add reporting requirements. The agencies generally agreed with GAO's recommendations but expressed concern over some of the matters for congressional consideration.

section_title: Letter
paragraphs: In the wake of the ongoing conflicts in Iraq and Afghanistan, thousands of  current and former military servicemembers are undergoing a transition  between their federal duties and their civilian employment. Congress  enacted the Uniformed Services Employment and Reemployment Rights  Act of 1994 (USERRA) to protect the employment and reemployment  rights of federal and nonfederal employees when they leave their  employment to perform military or other uniformed service. Among other  rights, servicemembers who meet the statutory requirements are entitled  to reinstatement to the positions they would have held if they had never  left their employment or to positions of like seniority, status, and pay.  USERRA was enacted as a means to encourage noncareer service in the  uniformed services by reducing the disruption that servicemembers often  face when returning to the civilian workforce and to prohibit  discrimination against individuals based upon their uniformed service.
Under USERRA, an employee or applicant for employment who believes  that his or her USERRA rights have been violated may file a complaint  with the Department of Labor’s (DOL) Veterans’ Employment and Training  Service (VETS), which is the entity that investigates and attempts to  resolve the complaint. If DOL’s VETS cannot resolve the complaint, DOL is  to inform the complainant of the right to request to have his or her  complaint referred to the Department of Justice (DOJ) or the Office of  Special Counsel (OSC). A complaint is referred to DOJ if it involves state  or private employers or to OSC if it involves a federal executive branch  agency. If the servicemember elects to have the complaint referred, DOJ  and OSC then determine whether to initiate legal action against the  employer.
We have previously reported on problems with the timeliness of agency  complaint processing and the reliability of data contained in DOL’s  USERRA annual report to Congress. To address concerns about  timeliness and data reliability, Congress imposed timeliness requirements  for DOL, DOJ, and OSC USERRA complaint processing as part of the  Veterans’ Benefits Improvement Act of 2008 (VBIA 2008). Under VBIA  2008, within 5 days of receiving a complaint, DOL must notify the  complainant of his or her USERRA process rights and, within 90 days of  receiving a complaint, complete its investigation. If the complaint is not  resolved and the servicemember requests to have the complaint referred,  DOL must send the case to DOJ (if against a nonfederal employer) or OSC  (if against a federal employer) within 60 days of receiving the request for  referral. Within 60 days of receiving the case from DOL, DOJ and OSC  must make a decision on whether to represent the servicemember. Any of  the three agencies may seek consent to extend the applicable deadline.  The act also requires DOJ, DOL, and OSC to submit quarterly reports to  Congress on the extent to which these agencies are meeting the timeliness  requirements and directs us to assess, as of the time of our review, the  extent to which DOJ, DOL, and OSC (1) have met the USERRA complaint  processing timeliness requirements and (2) have submitted reliable and  timely quarterly reports to Congress as required by VBIA 2008.
To address our first objective, we analyzed data from DOJ’s, DOL’s, and  OSC’s USERRA databases on complaints filed and referrals requested and  received from October 10, 2008—the effective date of VBIA 2008—to  December 31, 2009. In order to meet our mandated reporting deadline, we  established a cutoff date of February 28, 2010, and analyzed each agency’s  data as of that date. We assessed the reliability of the agencies’ USERRA  databases by comparing a random sample of DOL and DOJ case files and  all OSC case files during the period of our review against the data in the  databases. We found the data from each agency’s USERRA databases to be  sufficiently reliable to use in this report. We then used each agency’s data  to determine the extent that each agency met the timeliness requirements  and the average amount of time it took for each agency to meet the  respective deadlines. We also interviewed relevant agency officials. To  assess the reliability of the quarterly reports, we used each agency’s data  and attempted to recreate each agency’s quarterly reports covering the  periods of October 10, 2008, through December 31, 2009. We also  interviewed relevant agency officials and reviewed each agency’s policies  and procedures for collecting, maintaining, and storing the data and for  producing the reports. To determine the timeliness of each agency’s  submission of the quarterly reports to Congress, we reviewed the  transmittal letters and other evidence of submission to determine whether  the quarterly reports were submitted to Congress within 30 days after the  end of the quarter as required by VBIA 2008 and interviewed agency  officials concerning communication with Congress on their submissions.
We conducted this performance audit from January 2010 through October  2010 in accordance with generally accepted government auditing  standards. Those standards require that we plan and perform the audit to  obtain sufficient, appropriate evidence to provide a reasonable basis for  our findings and conclusions based on our audit objectives. We believe  that the evidence obtained provides a reasonable basis for our findings  and conclusions based on our audit objectives.
subsections: section_title: Background
paragraphs: USERRA applies to public and private employers in the United States,  regardless of size, and includes federal, state, and local governments, as  well as for-profit and not-for-profit private sector firms. In addition to the  reemployment provisions, USERRA also prohibits discrimination in  employment against individuals because of their service, obligation to  perform service, or membership or application for membership in the  uniformed services. Generally, servicemembers who were absent from  their civilian job by reason of their service are entitled to the  reemployment rights and benefits provided by USERRA if they provided  their employer with advance notice of their service requirement when  possible, served fewer than 5 years of cumulative uniformed service with  respect to that employer, left service under honorable conditions, and  reported back to work or applied for reemployment in a timely manner.
Servicemembers who meet their USERRA requirements are entitled to    prompt reinstatement to the positions they would have held if they had  never left their employment or to positions of like seniority, status, and  pay;  continued health coverage for a designated period of time while absent  from their employers and immediate reinstatement of health coverage  upon return;  training, as needed, to requalify for their jobs;    periods of protection against discharge (without cause) based on the  length of service; and    nonseniority benefits that are available to other employees who are on  leaves of absence.
If a servicemember believes that his or her USERRA rights have been  violated, the servicemember may seek formal assistance from federal  agencies in resolving the complaint. Figure 1 below shows the formal  USERRA complaint process using federal assistance and the deadlines  imposed by VBIA 2008.
In addition, VBIA 2008 requires DOJ, DOL, and OSC to submit quarterly  reports to Congress on their compliance with the deadlines. The reports  cover USERRA activities for the previous quarter and are due within         30 days of the end of that quarter.
To implement VBIA 2008 reporting requirements, each of the agencies  updated their existing databases used to both maintain data on USERRA  cases and produce the required reports. DOL produces its quarterly  USERRA reports by extracting data contained in its USERRA Information  Management System, a Web-based system managed by VETS that includes  critical events in the history of the case, case resolution, complainant and  employer names, and dates. DOJ’s Employment Litigation Section of the  Civil Rights Division, maintains data on the extent to which it meets VBIA  2008 deadlines in a WordPerfect log, which is an ancillary system to the  Civil Rights Division’s primary data system. OSC uses OSC 2000, which  was designed to capture and record data from the initial filing of a  complaint until the closure and archiving of the case file and allows for  queries that create a number of management and workload reports.
section_title: DOL, DOJ, and OSC Were Generally Timely in Meeting VBIA Deadlines, but Issues Remain Regarding Notification of Rights by DOL
subsections: section_title: DOL Has Generally Met VBIA and Extended Deadlines, but Some Servicemembers who Filed Hard Copy Complaints Were Not Notified of Rights
paragraphs: Our analysis showed that in the 1,663 investigations included in our  review, DOL generally met the original deadline or a new deadline agreed  to by the servicemember. For investigations, DOL met the original 90-day  deadline or an extended deadline in about 99 percent of cases. During the  period covered by our review, DOL took on average about 52 days to  complete an investigation. Figure 2 shows the extent to which DOL met  initial and extended investigation deadlines.  (1442)
1% (15) <1% (8)
When DOL exceeded the deadline, it generally negotiated an extension  with the servicemember to complete the investigation and met those  extended deadlines. In the 213 cases where DOL asked for and received  the complainant’s consent for an extension, DOL met the last extended  deadline in approximately 93 percent (198) of the investigations. For cases  that exceeded the deadline, the average processing time was  approximately 138 days. The longest investigation took nearly a year     (357 days) to complete. According to DOL, this case, for which the  Pension Benefit Guaranty Corporation (PBGC) was the trustee, involved a  servicemember who returned to employment after his pension plan had  been terminated and was affected by a change in PBGC rules under the  Employee Retirement Income Security Act (ERISA) of 1974.
As of February 28, 2010, 68 cases subject to our review remained open  (i.e., their investigation had not yet been completed). For investigations  that remained open, 32 of 68 cases had been open for more than 90 days.
The average age of those still open was approximately 104 days. As of  February 28, 2010, the investigation that had been open the longest was  285 days. According to DOL, during the course of the 285 days, the  investigation had been closed for 45 days due to the complainant’s lack of  response to the investigator’s inquiries. After DOL reopened the  investigation, the parties reached a settlement, but DOL kept the case  open, in accordance with DOL policy, until all the terms of the settlement  had been met. To assess the progress of investigations taking more than 90  days, VETS officials said that they produce a monthly management report,  which helps them identify and eliminate any barriers to resolution. The  report is also reviewed to identify any recurring issues that need to be  resolved through revised procedures or enhanced training.
When servicemembers requested a referral, DOL met either the original   60-day deadline to send the case to DOJ or OSC or an extended deadline in  more than 99 percent of the 205 referrals in our review. During the period  covered by our review, DOL took, on average, about 67 days to send the  memorandum of referral to DOJ or OSC. Figure 3 shows the extent to  which DOL met initial and extended referral deadlines.  64% (131)
36% (74)
36% (73) <1% (1) 0% (0)
When DOL exceeded the deadline on referral cases, it generally negotiated  an extension with the servicemember in order to finish processing the  referral and send it to DOJ or OSC. Where DOL asked for and received the  complainant’s consent for an extension of time, DOL met the last extended  referral deadline in nearly all cases—73 of 74 cases. For the 74 cases that  exceeded the deadline, the average processing time was about 113 days,  with the longest referral taking 348 days to process. According to DOL, the  complainant in this case had been injured in service and was not medically  ready to return to work at the time of the referral. Once the complainant  became medically stable, DOL could determine whether there was an  appropriate reemployment position to which the complainant could  return, and the case was ultimately resolved.
As of February 28, 2010, 34 referral cases subject to our review remained  open and were still being processed by DOL. Of the referrals still open as  of February 28, 2010, 13 of 34 cases had been open for more than 60 days.
The average age for those still open was 71 days. The referral open the  longest had an age of 324 days. According to DOL, it was difficult to obtain  the employer’s compliance with the terms of the settlement agreement,  and DOL kept the case open until the employer complied. To assess the  progress of referral processing, DOL also produces a monthly management  report on referrals to ensure that established procedures are being  followed and that, if the referral process will exceed 60 days, DOL will  negotiate for and document an extension of time.
subsections: section_title: DOL Notified Servicemembers of Rights for all Electronically Filed Complaints but Did Not Notify Some That Filed in Hard Copy
paragraphs: To implement the VBIA 2008 requirement to notify servicemembers of  their USERRA complaint process rights within 5 days of receiving a  complaint, DOL created a standard notification letter that advises  servicemembers of their right to request to have their case referred to DOJ  or OSC for further review, or that the servicemember can file a complaint  using private counsel. For complaints filed electronically, DOL updated its  USERRA database to automatically generate the standard notification in  an E-mail and send it directly to servicemembers. For complaints filed in  hard copy, the assigned DOL employee is to send the servicemember a  copy of the notification letter via E-mail or mail. To ensure that the  notifications are sent to the servicemember, DOL requires the investigator  to make a notation in the hard copy case file indicating that the  notification was sent and on what date. However, DOL does not record  this information in its USERRA database and does not track the extent to  which it complies with the notification requirement. VBIA 2008 does not  require DOL to report on the extent to which it complies with this  notification requirement.
We have previously reported on the importance of ensuring that  servicemembers are appropriately notified of their rights. In 2007, we  reported that DOL did not consistently notify complainants of their rights  at the end of the investigation and recommended that DOL update its  operations manual and augment its training. Since 2007, DOL has taken  actions to improve its process for notifying servicemembers of their rights  at the end of the investigation. However, because VBIA 2008 does not  require DOL to report on the extent to which it meets the new requirement  to notify servicemembers of their rights in writing within 5 days of  receiving the complaint, and DOL does not maintain and monitor such  data, Congress and DOL cannot be assured that servicemembers who file  complaints are adequately being informed of their USERRA process rights  in accordance with VBIA 2008.
Although DOL does not maintain data in its USERRA database on  notifications of USERRA complaint process rights, we were able to  estimate, based on our review of a random sample of case files, the extent  to which DOL notified servicemembers of their USERRA complaint  process rights within 5 days. Specifically, we estimated that in about         85 percent of cases, DOL notified complainants of their rights within           5 days. In about 9 percent of the cases, we estimated that DOL notified  complainants late. Of the complaints in our sample where DOL exceeded  the 5-day deadline, DOL notified complainants of their rights within 12  days. In about 7 percent of the cases, DOL did not have evidence of  notification of rights. In our sample, where we found no evidence of  notification, servicemembers had filed their complaints in hard copy.  About one-third of the cases in our sample were filed in hard copy.  Moreover, where servicemembers filed complaints electronically, we  found evidence in all cases that DOL notified the servicemembers of their  complaint process rights.
DOL is planning to implement a new process for handling hard copy  complaints, which, according to DOL, would help to ensure that all  servicemembers are notified of their rights in a timely manner. According  to DOL, all hard copy filed complaints will be submitted first to the  USERRA Regional Lead Center. The Lead Center will enter the hard copy  complaints into the electronic complaint system, and the complaint will  then be treated in the same way as if it had been filed electronically. This  includes immediately notifying the complainants that the complaint has  been received, providing them with appropriate VETS contact information,  notifying complainants of their rights, assigning the case to the  appropriate VETS office, and keeping records of all those actions. This  new procedure requires a change in the complaint form, which is pending  approval from the Office of Management and Budget. DOL officials plan to  implement the new process as soon as the new complaint form is  approved, which DOL officials expect will occur in the fall of 2010.
section_title: DOJ Generally Met VBIA and Extended Deadlines, but Does Not Apply VBIA Deadlines to State Employer Cases or Report Time Facilitating Settlement
paragraphs: Our analysis shows that in the 201 cases included in our review, DOJ met  the original deadline or an extended deadline in about 96 percent of all  cases. According to DOJ, complaints against state employers are not  covered under the 60-day deadline. However, because DOJ maintains data  on the extent to which it met the 60-day deadline in state employer cases  and reports on these cases in its quarterly reports, we have included these  cases in our analysis. During the period covered by our review, DOJ took  on average about 35 days to make a decision on representation (or  initiation of legal action) and to notify the complainant of its decision.  Figure 4 shows the extent to which DOJ met initial and extended referral  deadlines.
For the 29 cases that exceeded the 60-day deadline, the average processing  time was 101 days. The longest case took 342 days to reach a decision on  representation. According to DOJ, the servicemember in this case was  deployed overseas, and because DOJ wanted to conduct an in-person  interview with him prior to making a decision on representation, DOJ  obtained an extension until his return. Three other cases exceeded the  deadline by 60 days or more. Of those cases, one involved a  servicemember with an overseas deployment, another was delayed due to  settlement negotiations, and the third required DOJ to collect additional  information to make a decision on representation. Of those cases that  exceeded the deadline, DOJ sought an extension in 21 of 29 cases. For  cases where DOJ asked for and received the servicemember’s consent for  an extension of time, DOJ met the last negotiated deadline in all of the  cases. As of February 28, 2010, four cases included in our review remained  open and were still being processed by DOJ. Three of these cases had been  open for more than 60 days, with the longest open for 89 days.
subsections: section_title: DOJ Does Not Apply Statutory Deadline Requirements to Cases against State Employers
paragraphs: Our analysis showed that 6 of 12 cases against state employers took more  than 60 days to process. Comparatively, 23 of 189 cases against private or  local government employers exceeded the 60-day deadline. Therefore,  servicemembers who are employed by state governments may not be  receiving the same treatment as other servicemembers in terms of the  timeliness of USERRA complaint processing.
According to DOJ officials, the statutory deadline does not apply in cases  against a state employer. Specifically, DOJ officials stated that the  statutory deadline only applies where the Attorney General makes a  decision whether to “appear on behalf of, and act as attorney for” the  servicemember. This provision only applies to cases against private  employers because in those cases, DOJ represents the servicemember. For  cases against state employers, however, DOJ must bring cases on behalf of  the United States as the plaintiff. Since in these instances DOJ “appears  on behalf of and acts as attorney for” the United States—not the  servicemember—the statutory deadline does not apply, according to DOJ.  Nevertheless, DOJ maintains data on the extent to which it processes  these cases within 60 days and includes information on these cases in the  narrative section of its quarterly reports to Congress.
DOJ similarly states that the statutory requirement to seek consent for an  extension of the 60-day deadline does not apply to situations involving  state employers since DOJ does not represent the individual  servicemember, but is instead representing the interests of the United  States as the plaintiff, or real party in interest. DOJ officials said that to  require DOJ to seek such consent from a servicemember in situations  involving state employers would create the appearance that the  servicemember is the real party in interest and that DOJ is not  representing the U.S. government, but the servicemember. According to  DOJ, this could foster Eleventh Amendment challenges by states who  would argue that it is the servicemember, not the United States, that is the  plaintiff or real party in interest and that such a suit runs afoul of the  Eleventh Amendment in the same way that a private suit has when brought  by a servicemember against a state employer.
section_title: DOJ Did Not Report on Time Facilitating Settlement
paragraphs: Our analysis showed that in 6 of 13 private employer cases where the  servicemember was involved in settlement negotiations and DOJ declined  representation, DOJ notified the servicemember of its decision to decline  representation but continued to aid the parties with facilitating a  settlement. According to DOJ officials, once it has declined  representation, DOJ no longer counts the time it spends working on the  case in measuring compliance with the statutory time frame.  Consequently, DOJ does not report this time following the decision on  representation. DOJ officials said that for some cases they made the  decision not to offer representation, but continued to aid parties in  facilitating settlement because they thought it was in the best interest of  the servicemember. VBIA 2008 requirements were enacted in part due to  congressional recognition of servicemember concerns over the length of  time it takes for USERRA complaints to be resolved. Because VBIA 2008  does not require the agencies to report time they spend on a case after  declining representation, Congress is not getting a full picture of the effort  that DOJ makes on behalf of servicemembers.
section_title: OSC Has Generally Met VBIA and Extended Deadlines
paragraphs: Our analysis showed that in the 45 cases included in our review, OSC  generally met the original deadline or an extended deadline agreed to by  the servicemember. OSC met the original 60-day deadline or an extended  deadline in 42 of 45 cases. During the period covered by our review, OSC  took, on average, about 61 days to make a decision on representation and  to notify the servicemember of its decision. Figure 5 shows the extent to   5 shows the extent to  which OSC met initial and extended deadlines.  which OSC met initial and extended deadlines.
For cases where OSC asked for and received the complainant’s consent  for an extension of time to make a decision on representation, OSC met  the last extended deadline in three of the four cases. The longest case,  which was delayed because OSC discovered it needed to gather more  information in the case, took 240 days to reach a decision on  representation.
section_title: DOL’s and DOJ’s Quarterly Reports Have Timeliness and Data Quality Issues; the Three Agencies Lack Uniform Criteria in Reporting Cases
paragraphs: VBIA 2008 requires that DOL, DOJ, and OSC submit quarterly reports to  Congress within 30 days of the end of each quarter. Based on our review of  the transmittal letters for quarterly reports submitted between October 10,  2008, and December 31, 2009, DOL was late in submitting all five of its  quarterly reports, ranging from 4 to 46 days late. DOJ was late in  submitting its quarterly reports in four of five quarters of our review by a  range of 11 to 40 days. During the period covered by our review, OSC  consistently submitted its quarterly USERRA reports on time or before the  statutory deadline, from 1 to 3 days early. Table 1 below shows the extent  to which each agency was timely in submitting its quarterly report to  Congress.
DOL officials said that to ensure data accuracy and avoid having to  regularly adjust previously-submitted quarterly reports in future reports,  DOL reserves 2 weeks after the end of each quarter for staff to finalize  database entries on all investigations and referral actions taken through  the last day of that quarter. The quarterly report is then drafted and  reviewed by the responsible officials. Although recent reports have been  late, DOL expects to improve its timeliness in submitting them as it gains  more experience in preparing these reports. DOL officials said that it had  not communicated with Congress in advance of late submissions.
Officials from DOJ’s Civil Rights Division said they typically submit  reports 1 to 2 weeks before the statutory deadline to their Office of  Legislative Affairs (OLA), which has sole responsibility for communication  with Congress. OLA officials said that it takes from 1 week to 1 month for  a report to go through OLA’s review process before it can be submitted to  Congress. When a report is expected to miss a deadline, OLA officials said  that they do not generally communicate with members of Congress or  their staff.
subsections: section_title: Agencies’ Reports Were Generally Accurate, but Lack Uniformity in Reporting Data; DOL and DOJ Have Data Quality Issues
paragraphs: For DOL, DOJ, and OSC, the data contained in the quarterly reports during  the period covered by our review were generally consistent with our  analysis. However, the three agencies did not use the same criteria for  including the number of cases that exceeded or met the statutory deadline  in their quarterly reports. Specifically, DOL and OSC included cases where  (1) the applicable statutory deadline occurred within the quarter, or         (2) the deadline occurred in a later quarter but the agency met its statutory  requirement within that quarter. However, DOJ reports the number of  cases that met or exceeded the deadline only for cases where the deadline  occurred within the quarter. VBIA 2008 requires that data contained in the  reports be categorized in a uniform way. Because the three agencies are  not using the same criteria to determine which cases to include in their  quarterly reports, Congress may not be able to assess trends across the  three agencies.
subsections: section_title: DOL Data Presented in Quarterly Reports Were Generally Reliable, but DOL Does Not Always Correct Its Database after Preparing its Reports
paragraphs: Although the data contained in DOL’s quarterly USERRA reports during  the time of our review were generally consistent with our analysis of data  from its USERRA database, DOL’s process for identifying and correcting  errors in its quarterly reports accounts for some of the differences we  found.
To prepare its quarterly reports, DOL extracts data on the relevant cases  from its USERRA database and generates two separate lists; one for  investigations, which are subject to a 90-day deadline, and another for  referral requests, which are subject to the 60-day deadline. After both lists  have been sorted and analyzed to produce a draft report, the lists are  reviewed by DOL officials who oversee investigations and referral  processing. From those lists, DOL identifies cases that exceeded the  deadline and then reviews documentation for these cases to determine if  an extension had been recorded in the file but had not been entered in  DOL’s USERRA database. If it identifies such a record, it makes a notation  as part of its analysis, but does not always make a correction in its system  of record—the USERRA database. We identified four referrals where the  USERRA database showed that DOL exceeded the 60-day referral deadline  without an extension, but DOL made a written notation in its analysis used  to produce its quarterly report reflecting consent to an extension. As of  March 1, 2010, the date that DOL extracted the data for this review, DOL  had not updated its database to reflect these extensions. After we notified  DOL that its USERRA database had not been updated, DOL provided us  documentation of consent for extensions in these four cases and updated  its USERRA database to reflect the extensions.
GAO’s Standards for Internal Control in the Federal Government require  that agencies establish a system to ensure the accuracy of data that it  processes. These standards state that such a system should employ a  variety of control activities to ensure accuracy and completeness, such as  using edit checks in controlling data entry and performing data validation  and editing to identify erroneous data, among other activities. Because  DOL does not consistently make corrections to the data in its USERRA  database, DOL cannot ensure it has accurate and readily available data to  monitor, track, and report on its performance in meeting VBIA 2008  requirements. A better system to correct its data could help DOL to ensure  that it is accurately meeting congressional reporting requirements.
section_title: DOJ Reports Were Generally Accurate, but DOJ Does Not Have a Reliable Process for Producing Quarterly Reports
paragraphs: Although the data contained in DOJ’s quarterly reports that we analyzed  were generally consistent with our analysis of the data from its  WordPerfect log, DOJ does not have a standard, repeatable process to  input USERRA data and produce its quarterly reports. DOJ relies on one  individual to enter the data and prepare its quarterly reports. A  supervisory equal opportunity specialist in the Employment Litigation  Section of the Civil Rights Division is responsible for inputting all the  USERRA data necessary for reporting on timeliness into a WordPerfect  log. DOJ does not have any written definition on each data element in the  log. When this employee takes leave, the deputy section chief serves as the  backup to collect the relevant documents, but does not enter data into the  log; the supervisory equal opportunity specialist enters the data upon  return from leave. DOJ officials said that no other DOJ employee is  knowledgeable about operating the WordPerfect log. Moreover, there is no  system to check and ensure that data are entered correctly. To prepare the  reports, the supervisory equal opportunity specialist manually counts the  number of reports to be included in each category of the report. Although  DOJ said that it uses a WordPerfect formula to calculate when the 60-day  deadline occurs, DOJ does not use standard formulas or queries to  generate the numbers for the reports. Such an approach that requires  manual counting may be susceptible to error. We have previously reported  on the importance of standard, repeatable procedures for producing  reports. Moreover, GAO’s Standards for Internal Control in the Federal  Government require that agencies establish a system to ensure the  accuracy of data contained in reports. Implementing such a system could  help DOJ improve the accuracy of its reports to Congress.
section_title: Conclusions
paragraphs: Servicemembers who leave their civilian employment to perform military  or other uniformed service need to be assured that the agencies assigned  to assist them when they believe that their USERRA rights have been  violated are processing their complaints in a timely manner. We found that  DOL, DOJ, and OSC generally met initial or extended complaint  processing deadlines. While all three agencies’ quarterly reports to  Congress were generally accurate, the agencies did not use the same  criteria for including cases in their quarterly reports. Moreover, DOL and  DOJ were sometimes late in submitting quarterly reports to Congress and  could improve maintenance of data and reporting on the extent to which  they have met statutory deadlines. Specifically, DOL does not maintain  data to monitor the extent to which it met the requirement to notify  servicemembers of their complaint processing rights within 5 days.  Additionally, when DOL identifies errors in its USERRA database when it  prepares its quarterly reports to Congress, it does not always correct the  database. DOJ does not have a standard, repeatable process to input  USERRA data and process its quarterly reports and lacks data reliability  checks. Addressing these data maintenance and reporting issues can help  agencies ensure that future USERRA quarterly reports are timely,  accurate, and clear.
section_title: Recommendations for Executive Action
paragraphs: We recommend that the Secretary of Labor, Attorney General, and Special  Counsel  establish consistent criteria for including cases in their quarterly  USERRA reports to Congress.
We recommend that the Secretary of Labor direct the Assistant Secretary  for the Veterans’ Employment and Training Service to  ensure that a system is in place to monitor compliance with  notification of rights requirements similar to those used to assess  compliance with other statutory deadlines, including maintaining data  on such compliance;    develop guidance and oversight mechanisms to ensure that changes  are entered into the USERRA database as the quarterly reporting data  are updated; and  establish procedures to ensure that quarterly USERRA reports are  submitted to Congress within 30 days of the end of each quarter, as  required by VBIA 2008.
We recommend that the Attorney General  establish a system of internal controls for collecting, maintaining,  processing, and checking reliability of data for the quarterly reports to  Congress; and  establish procedures to ensure that quarterly USERRA reports are  submitted to Congress within 30 days of the end of each quarter as  required by VBIA 2008.
section_title: Matters for Congressional Consideration
paragraphs: To help ensure that that servicemembers who file complaints are  adequately being informed of their USERRA complaint process rights  in accordance with VBIA 2008, Congress should consider amending  USERRA to require DOL to report on the extent to which it is notifying  complainants of their USERRA complaint process rights within 5 days  of filing a complaint.
To help ensure that DOJ handles state cases as expediently as private  employer cases, Congress should consider amending USERRA to  specifically require DOJ to adhere to the same 60-day deadline for state  employer matters that they must adhere to for matters against private  employers.
To help ensure that servicemembers in state employer cases are kept  apprised of the status of DOJ’s decision making without potentially  compromising DOJ’s ability to successfully bring suit against state  employers, Congress should consider amending USERRA to require  DOJ to notify these servicemembers of the status of DOJ’s efforts.
To help ensure that Congress is fully apprised of efforts to resolve a  case, Congress should consider amending USERRA to require DOJ and  OSC to report on additional time taken to resolve a matter after they  decline representation.
section_title: Agency Comments and Our Evaluation
paragraphs: We provided a draft of this report to DOL, DOJ, and OSC for review and  comment. In written comments, which are included in appendix II, DOL  agreed with our recommendations and provided additional comments on  the matter for congressional consideration regarding reporting on  notification of rights. Specifically, DOL stated that actions it plans to take  to ensure that servicemembers are notified of their rights within 5 days  will be sufficient and DOL will notify Congress and GAO of its progress in  this regard. Therefore, DOL’s view is that amending USERRA to require  reporting on notification of rights is not necessary. While these steps are  positive, we continue to believe that providing Congress this information  on a regular basis is important for supporting Congress in its oversight  role.
DOJ, in written comments, which are included in appendix III, agreed with  our recommendations to establish consistent criteria for including cases in  quarterly USERRA reports and to establish procedures to ensure that  quarterly USERRA reports are submitted to Congress within 30 days of the  end of each quarter. While DOJ agreed with our recommendation to  improve its internal controls for producing its quarterly reports with  respect to checking reliability of data, DOJ stated that its procedures for  collecting, processing, and maintaining data for the quarterly reports are  adequate. We continue to believe that DOJ’s practice of having one person  responsible for the collection and maintenance of the data and its process  for manually counting claims to be included in the quarterly reports do not  provide sufficient internal controls to ensure the continued accuracy of  the data reported to Congress.
DOJ also expressed serious concern about our matter for congressional  consideration to amend USERRA to require DOJ to notify state employee  servicemembers of the status of their cases, stating that it is extremely  important to maintain its independence in determining whether to file suit  in the name of the United States against a state. We continue to believe  that it is important that state employees be made aware of the status of  their USERRA complaint and that an amendment requiring notification  would help ensure that this occurs. The suggested amendment would not  require DOJ to request approval from the servicemember to extend  deadlines and is consistent with DOJ’s current practice. In our view, this  notification requirement would not compromise DOJ’s independence and  would reinforce the important distinction between state employee cases,  where DOJ represents the interests of the United States, and private  employee cases, where DOJ represents the individual servicemember. For  cases involving state employees, DOJ would be required to notify  servicemembers of the status of their cases, whereas in cases involving  private employees, DOJ is required to request approval from the  servicemember to extend the deadline for DOJ’s review.
DOJ also said that it believed that it was unnecessary to amend USERRA  to require reporting on time spent on USERRA referrals after  representation has been declined because VBIA 2008 does not require DOJ  to engage in conciliation or settlement discussions. However, because  VBIA 2008 requirements were enacted in part due to concerns over the  length of time it takes to resolve USERRA complaints, the proposed  amendment is needed to provide Congress a full picture of the effort that  DOJ makes on behalf of servicemembers.
OSC, in written comments, which are included in appendix IV, generally  concurred with the conclusions and recommendations in our report.  However, OSC noted that, regarding the recommendation on establishing  consistent criteria for including cases in quarterly USERRA reports, DOJ  should adopt the criteria already used by DOL and OSC. As we state in our  report, VBIA 2008 called for the agencies to uniformly categorize the data  contained in their reports. Whether one way provides greater benefit  should be addressed by the agencies.
We will send copies of this report to the Attorney General, the Secretary of  Labor, the Associate Special Counsel, and other interested parties. 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 at                  (202) 512-6806 or at ekstrandl@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 to this report are listed  in appendix V.
section_title: Appendix I: Objectives, Scope, and Methodology
paragraphs: Our objectives were to assess the extent to which the Department of Labor  (DOL), Office of Special Counsel (OSC), and Department of Justice (DOJ)  (1) met Veterans’ Benefits Improvement Act of 2008’s (VBIA 2008)  complaint processing timeliness requirements between October 10, 2008,  and December 31, 2009, and (2) submitted timely and reliable quarterly  reports to Congress as required by VBIA 2008.
subsections: section_title: Objective 1: Assess the Extent to Which DOL, OSC, and DOJ Met VBIA’s Complaint Processing Timeliness Requirements between October 10, 2008, and December 31, 2009
paragraphs: To assess the extent to which DOL, OSC, and DOJ met VBIA 2008’s  complaint processing timeliness requirements, we obtained information  on all the USERRA complaints filed with and without referral requests  received by DOL from October 10, 2008—the effective date of VBIA 2008— through December 31, 2009. We obtained data from DOL’s USERRA  Information Management System on March 1, 2010. We considered cases  that were closed as of February 28, 2010, as completed cases, while cases  that remained open as of this date were treated as pending cases in our  analysis. We obtained 1,663 unique complaints and 205 referrals that met  these criteria from DOL. In addition, there were 68 complaints and 34  referrals that remained open as of February 28, 2010. We also obtained  data during that same time period on referrals received by OSC generated  from its case tracking system, OSC 2000, and by DOJ from the  WordPerfect log used by the Employment Litigation Section of its Civil  Rights Division. For OSC, we obtained 45 referrals that met these criteria.  For DOJ, we identified 201 referrals that met these criteria and four cases  that remained open as of February 28, 2010.
We first assessed the reliability of the data from databases that each  agency uses to maintain data for reporting to Congress under VBIA 2008.  To assess the reliability of each of the databases, we compared data from  the databases with data found in the official hard copy case files. For DOL  and DOJ, we traced data from a random probability sample of cases to the  case files. For DOL, our sample included a total of 60 unique cases where  the servicemember did not request a referral and 52 cases where the  servicemember requested a referral. For DOJ, our sample included 55  cases from a universe of 201 cases. Because OSC received only 45 referrals  between October 10, 2008, and December 31, 2009, we compared the data  from all 45 cases to the official hard copy case files.
For selected data elements related to reporting to Congress, we assessed  the reliability of these data elements by attempting to match the data in  the databases with the source case files. In addition, for each selected  data element, we excluded cases from our data reliability assessment if  information was missing from the case file, thus preventing a comparison  between data in the databases and the case file. We did not evaluate the  accuracy of the source of the 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 the databases was the same or  within 1 day of the date reflected in the case file.
To assess the reliability of the data elements pertaining to time, we  assessed (1) the number of times that the electronic data did not match  the hard copy, case file data, (2) the average number of days that the  electronic date differed from the hard copy date, and (3) the change in the  number of cases exceeding the deadline based on differences between the  dates contained in the electronic data and the hard copy data. Based on  the collective results of each of these tests, we consider each agency’s  data to be sufficiently reliable for the purposes of this report.
To determine the extent to which each agency met the complaint  processing timeliness deadlines, we used the data from each agency’s  database and calculated the average processing time for complaints and  referrals received from October 10, 2008, through December 31, 2009, and  that closed by February 28, 2010.
Because DOL does not maintain data in its USERRA database on the  extent to which it notified the claimant of his or her complaint processing  rights, we estimated that percentage based on the data gathered from the  random probability sample of case files. We reviewed the extent to which  there was evidence that DOL notified the servicemember of his or her  USERRA complaint processing rights within 5 days of receiving the  complaint and the time it took to notify the servicemember. We used four  different indicators as evidence of notification: (1) the pen and ink  notation at the bottom of the complaint form, (2) an E-mail containing the  text of the standard notification, (3) the presence of the enclosure for  “Your USERRA Complaint Process Rights,” or (4) a letter or E-mail  containing language indicating that notification of rights was enclosed or  attached. All percentage estimates presented in this report have a margin  of error of plus or minus 11 percentage points or less at the 95 percent  confidence level.
We also interviewed knowledgeable DOL, DOJ, 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 DOJ, we interviewed officials with the  Employment Litigation Section of the Civil Rights Division. At OSC, we  interviewed officials from the USERRA Unit and Information Technology  Branch.
section_title: Objective 2: Assess the Extent to Which DOL, OSC, and DOJ Have Submitted Timely and Reliable Quarterly Reports to Congress as Required by VBIA 2008
paragraphs: Timeliness of Submissions: To determine the timeliness of each  agency’s submission of the quarterly reports to Congress, we reviewed the  transmittal letters and other documentation of submission to determine  whether the quarterly reports were submitted to Congress within 30 days  after the end of the quarter. To determine each agency’s policies and  procedures for submitting the quarterly reports, we interviewed officials  from DOL’s VETS, DOJ’s Office of Legislative Affairs, and OSC’s USERRA  Unit.
Reliability of Quarterly Reports: To assess the reliability of the  quarterly reports, we used data from each agency’s database covering the  period of October 10, 2008, through December 31, 2009, and, based on  criteria provided by each agency, attempted to recreate the quarterly  reports. For each agency’s report, we assessed the accuracy of the tables  identifying the number of cases that met the deadline and the number of  cases that exceeded the applicable deadline, with and without consent. We  did not assess the data contained in the narrative portion of each agency’s  reports. We also reviewed each agency’s policies and procedures for  collecting, maintaining, and storing the data and for producing the reports,  and interviewed officials from VETS’s National Office and Atlanta  Regional Office; DOJ’s Employment Litigation Section of its Civil Rights  Division; and OSC’s USERRA Unit and Information Technology Branch.
DOL: We recreated five quarterly reports by applying DOL’s criteria and  using data provided from its USERRA database. For each quarter, we  included investigations where the 90-day deadline occurred within the  quarter, or the 90-day due date occurred in a later quarter and the close  date occurred within the quarter. For referrals, we included cases where  the 60-day deadline occurred within the quarter, or the 60-day deadline  occurred in a later quarter and the last action on the referral occurred  during the quarter.
We found some differences between our analysis and the data in the  quarterly reports. However, we were generally able to account for the  differences. For referrals, these differences were due to DOL’s failure to  correct its database to include extensions that DOL identified while  reviewing the data extracts prior to submission of its quarterly reports.  Specifically, when DOL identifies cases where the latest deadline has been  exceeded, DOL reviews documentation for these cases to determine if an  extension had been recorded in the file but had not been entered in DOL’s  USERRA database. If DOL identifies such a record, it makes a notation as  part of its analysis, but it does not always make a correction in its system  of record—the USERRA database. Specifically, we found four cases where  DOL made a notation in its analysis used to produce its quarterly report,  but the information did not appear in the data that we obtained from  DOL’s USERRA database. For investigations, differences between our  analysis and the data in the quarterly reports may have been due to  changes in the status of a case being recorded in DOL’s USERRA database  following the end of the quarter in which the case was reported.
DOJ: We recreated four of five DOJ reports using criteria provided to us by  DOJ and applying those criteria to the data from DOJ’s WordPerfect log.  We included cases where the 60-day deadline occurred within the quarter.  In addition, we included state cases in our analyses through third quarter,  fiscal year 2009—the same quarters that state cases were included by  DOJ. We could not recreate DOJ’s quarterly report for first quarter, fiscal  year 2009, because DOJ’s WordPerfect log did not contain data on all cases  contained in the report—specifically referrals that were received prior to  October 10, 2008. Our analysis of the latter four reports showed that DOJ  included one additional referral that exceeded the 60-day deadline with  consent in second quarter, fiscal year 2009, and one case that exceeded the  deadline without consent in third quarter, fiscal year 2009. This case  exceeded the deadline by 2 days. Because of the small number of  inaccuracies, we found DOJ’s fiscal year 2009 second through fourth  quarter and fiscal year 2010 first quarter reports to be generally consistent  with our analysis.
OSC: We recreated OSC’s report by including cases where the 60-day  deadline occurred within the quarter, or the 60-day deadline occurred in a  later quarter but OSC completed processing the referral within the quarter.  We did not find any discrepancies between our analysis and the data  contained in OSC’s quarterly reports.
We conducted this performance audit from January 2010 through  September 2010 in accordance with generally accepted government  auditing standards. Those standards require that we plan and perform the  audit to obtain sufficient, appropriate evidence to provide a reasonable  basis for our findings and conclusions based on our audit objectives. We  believe that the evidence obtained provides a reasonable basis for our  findings and conclusions based on our audit objectives.
section_title: Appendix II: Comments from the Department of Labor
section_title: Appendix III: Comments from the Department of Justice
section_title: Appendix IV: Comments from the Office of Special Counsel
section_title: Appendix V: GAO Contact and Staff Acknowledgments
paragraphs: Laurie E. Ekstrand at (202) 512-6806 or ekstrandl@gao.gov.
subsections: section_title: Acknowledgments
paragraphs: In addition to the contact named above, individuals making key  contributions to this report were Bill Reinsberg, Assistant Director; Jim  Ashley; Gerard Burke; Karin Fangman; Donna Miller; Wesley Sholtes;  Tamara Stenzel; Jessica Thomsen; and Greg Wilmoth.
section_title: Related GAO Products
paragraphs: Military Personnel: Improvements Needed to Increase Effectiveness of  DOD’s Programs to Promote Positive Working Relationships between  Reservists and Their Employers. GAO-08-981R. Washington, D.C.:      August 15, 2008.
DOD Financial Management: Adjudication of Butterbaugh Claims for  the Restoration of Annual Leave or Pay. GAO-08-948R. Washington, D.C.:  July 28, 2008.
Military Personnel: Federal Agencies Have Taken Actions to Address  Servicemembers’ Employment Rights, but a Single Entity Needs to  Maintain Visibility to Improve Focus on Overall Program Results.   GAO-08-254T. Washington, D.C.: November 8, 2007.
Military Personnel: Considerations Related to Extending Demonstration  Project on Servicemembers’ Employment Rights Claims. GAO-08-229T.  Washington, D.C.: October 31, 2007.
Military Personnel: Improved Quality Controls Needed over  Servicemembers Employment Rights Claims at DOL. GAO-07-907.  Washington, D.C.: July 20, 2007.
Office of Special Counsel Needs to Follow Structured Life Cycle  Management Practices for Its Case Tracking System. GAO-07-318R.  Washington, D.C.: February 16, 2007.
Military Personnel: Additional Actions Needed to Improve Oversight of  Reserve Employment Issues. GAO-07-259. Washington, D.C.: February 8,  2007.
Military Personnel: Federal Management of Servicemember Employment  Rights Can Be Further Improved. GAO-06-60. Washington, D.C.: October  19, 2005.
U.S. Office of Special Counsel’s Role in Enforcing Law to Protect  Reemployment Rights of Veterans and Reservists in Federal  Employment. GAO-05-74R. Washington, D.C.: October 6, 2004.