Summary
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.
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.
Recommendations
Our recommendations from this work are listed below with a Contact for more information. Status will change
from "In process" to "Implemented" or "Not implemented" based on our follow up work.
Director:
Team:
Phone:
George H. Stalcup
Government Accountability Office: Strategic Issues
(202) 512-9095
Recommendations for Executive Action
Recommendation: The Secretary of Labor should direct the Assistant Secretary for Veterans' Employment and Training to incorporate into the formal update to Veterans' Employment Training Service's (VETS) 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.
Agency Affected: Department of Labor
Status: Implemented
Comments: In a meeting on July 14, 2008, VETS officials said that the policy changes concerning notification of rights and the appropriate closed dates in VETS's database have been incorporated into the revised Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) Operations Manual, which was field tested in November 2007 and went into effect in February 2008. On August 25, we received a copy of VETS's revised USERRA Operations Manual from VETS's Director of Compliance and Investigations. The revised manual that went into effect in February 2008 contains the following revisions in response to our recommendation: 1) revised language stating that claimants must be advised in writing at the time the case is closed for claims not resolved of their right to have their claims referred to OSC (federal) and Department of Justice (nonfederal); 2) added notification language to all sample closure letters for claims not resolved on right to referral and to file claims directly with the MSPB (federal) or in a court of competent jurisdiction (nonfederal) and included sample letters specific to federal claimants as well as to nonfederal claimants; 3) added a section to the Manual stating that the case closure date in VETS USERRA database must match the date on the closure letter sent to the claimant. According to a VETS official, VETS will be reviewing a sample of closure letters and electronic case files as part of an internal audit to assess compliance with this policy and other new USERRA complaint processing procedures.
Recommendation: The Secretary of Labor should direct the Assistant Secretary for Veterans' Employment and Training to 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.
Agency Affected: Department of Labor
Status: Implemented
Comments: In a meeting on July 14, 2008, VETS officials said that as of this date five of six regional mandatory training sessions were held, and the sixth is scheduled for August 2008 for the San Francisco region. The training included a section on notification of claimants' rights. On July 28, 2008 and August 25, 2008, we received documentation from VETS's Director of Compliance & Investigations of the contents of the mandatory training sessions. Documentation showed that training included a section on notification of servicemember rights where the appropriate procedures and the relevant sections of the revised USERRA Operations Manual were reviewed. On September 4, 2008, we received confirmation from the same VETS's official that the August 2008 training was held as planned.
Recommendation: The Secretary of Labor should direct the Assistant Secretary for Veterans' Employment and Training to 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.
Agency Affected: Department of Labor
Status: Implemented
Comments: In a meeting on July 14, 2008, VETS officials said that as of February 2008, higher levels of review were to take place of the closure letters and the electronic case file/record prior to notifying the claimant of a determination. A VETS official defined a higher level of review as one that is done by at least one level higher than the investigator who conducted the investigation (i.e., generally either a senior investigator or a director, depending on the region). According to a VETS official, VETS will be reviewing a sample of closure letters and electronic case files as part of an internal audit to assess compliance with this and other new Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) complaint processing procedures. On July 28, 2008, we received documentation from VETS's Director of Compliance & Investigations showing that beginning in February 2008, VETS required review of all closure letters and case files by the USERRA investigator's first-line supervisor before the claimant is notified of the results of the investigation. In addition, documentation also showed that as part of a revised quality assurance review process, all closed claims are to be reviewed to determine if the closure letter was reviewed by a supervisor prior to being sent to the claimant.
Recommendation: The Secretary of Labor should direct the Assistant Secretary for Veterans' Employment and Training to 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.
Agency Affected: Department of Labor
Status: In process
Comments: In a meeting on July 14, 2008, according to a VETS official, VETS manually adjusted Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) claims data for its fiscal year 2007 annual report as well as claims filed in fiscal years 2004 through 2006 to ensure that only data on unique USERRA claims are captured and to ensure that there was no longer double counting of claims. The official explained that previously claims that had been double counted included those that were reassigned to investigators in a different state and reopened claims (e.g., those where a servicemember requested a referral). The official added that VETS will be making a programming change to its database in fiscal year 2009 to automatically capture unique USERRA claims.
