<DOC>
[110 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:41385.wais]
S. Hrg. 110-403
OVERSIGHT HEARING ON UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT
RIGHTS ACT
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HEARING
BEFORE THE
COMMITTEE ON VETERANS' AFFAIRS
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
OCTOBER 31, 2007
__________
Printed for the use of the Committee on Veterans' Affairs
Available via the World Wide Web: http://www.access.gpo.gov/congress/
senate
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COMMITTEE ON VETERANS' AFFAIRS
Daniel K. Akaka, Hawaii, Chairman
John D. Rockefeller IV, West Richard Burr, North Carolina,
Virginia Ranking Member
Patty Murray, Washington Arlen Specter, Pennsylvania
Barack Obama, Illinois Larry E. Craig, Idaho,
Bernard Sanders, (I) Vermont Johnny Isakson, Georgia
Sherrod Brown, Ohio Lindsey O. Graham, South Carolina
Jim Webb, Virginia Kay Bailey Hutchison, Texas
Jon Tester, Montana John Ensign, Nevada
William E. Brew, Staff Director
Lupe Wissel, Republican Staff Director
C O N T E N T S
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October 31, 2007
SENATORS
Page
Akaka, Hon. Daniel K., Chairman, U.S. Senator from Hawaii........ 1
Tester, Hon. Jon, U.S. Senator from Montana...................... 2
Murray, Hon. Patty, U.S. Senator from Washington................. 3
Burr, Hon. Richard, Ranking Member, U.S. Senator from North
Carolina....................................................... 4
Prepared statement........................................... 4
WITNESSES
Stalcup, George H., Director, Strategic Issues, U.S. Government
Accountability Office.......................................... 5
Prepared statement........................................... 8
Responses to written questions from:
Hon. Daniel K. Akaka....................................... 20
Hon. John Tester........................................... 21
Ciccolella, Charles C., Assistant Secretary for Veterans'
Employment and Training, U.S. Training, U.S. Department of
Labor.......................................................... 26
Prepared statement........................................... 28
Responses to written questions from Hon. Daniel K. Akaka..... 33
Byrne, Jim, Deputy Special Counsel, U.S. Office of Special
Counsel; accompanied by Patrick Boulay, Chief, USERRA Unit,
U.S. Office of Special Counsel................................. 35
Prepared statement........................................... 36
Responses to written questions from Hon. Daniel K. Akaka..... 37
Appendix A................................................. 42
Boulay, Patrick, Chief, USERRA Unit, U.S. Office of Special
Counsel........................................................ 47
Tully, Matthew B., Tully, Rinckey and Associates, PLLC........... 53
Prepared statement........................................... 55
APPENDIX
Pope, Philip, Deputy Executive Director, National Committee for
Employer Support of the Guard and Reserve; prepared statement.. 73
OVERSIGHT HEARING ON UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT
RIGHTS ACT
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WEDNESDAY, OCTOBER 31, 2007
U.S. Senate,
Committee on Veterans' Affairs,
Washington, D.C.
The Committee met, pursuant to notice, at 9:30 a.m., in
room 562, Dirksen Senate OfficeBuilding, Hon. Daniel K. Akaka,
Chairman of the Committee, presiding.
Present: Senators Akaka, Murray, Tester, and Burr.
OPENING STATEMENT OF HON. DANIEL K. AKAKA, CHAIRMAN, U.S.
SENATOR FROM HAWAII
Chairman Akaka. This hearing will come to order. I want to
say aloha and welcome to all of youto the Committee's oversight
hearing on the Uniformed Services Employment and Reemployment
RightsAct. We are going to call it from now on USERRA.
As our troops are returning home from battle, many of them
seek to return to the jobs thatthey held prior to their
military service, particularly those serving in the Guard and
Reserveunits. USERRA provides these servicemembers with certain
protections. USERRA also sets outcertain new responsibilities
for employers, including to reemploy returning veterans in
theirprevious jobs. This protection applies to virtually all
jobs, including those in the Federalsector.
I must admit to being particularly upset at the volume of
USERRA claims related to Federalservice. It is simply wrong
that individuals who were sent to war by their government
should, upontheir return, be put in the position of having to
do battle with that same government in order toregain their
jobs and benefits.
Several years ago, Congress created a demonstration
projects in the Veterans' BenefitsImprovement Act of 2004, the
Public Law 108-454 under which the Office of the Special
Counsel,OSC, rather than the Department of Labor's Veterans'
Employment and Training Service, VETS, wasgiven the authority
to receive and investigate certain Federal sector USERRA
claims. GAO was toreport to the Congress on the operation and
results of the demonstration project together with anassessment
of the advisability of transferring the responsibility for all
Federal sector USERRAclaims from VETS to OSC.
The GAO report was received on July 20, 2007, and I will
ask that it be included in itsentirety in the proceedings of
this hearing.
Chairman Akaka. Unfortunately, it is not clear to me that
results of the demonstration projectand the GAO report provide
sufficient evidence to permit this Committee to decide on the
properjurisdiction of these claims. I believe that a good case
can be made for retaining jurisdiction byboth VETS and OSC.
Thus, this morning, we will be hearing from each of the parties
who will havethe opportunity to make their case to the
Committee as to which organization should have
theresponsibility.
We will also be hearing testimony from a firsthand
perspective from Mr. Matthew Tully, whowill share with the
Committee his experiences and his expertise.
We will need to move through this hearing in a timely
fashion so I ask that our witnessesadhere to the five-minute
rules for your oral presentation. Your full statements, of
course, willbe made a part of the Committee's record.
Again, I want to say welcome and I look forward to hearing
from each of you this morning.
For the information of others present today, let me explain
that the Filipino veterans andfamily members who are here today
are expressing their support for Senate action on an
omnibusbenefits bill reported by our Committee that contains
provisions which would recognize the serviceof Filipino
veterans during World War II as service in the U.S. Armed
Forces. As I have explainedto those supporting this bill, I am
working hard to get floor action, but the Senate calendar
iscrowded and since I am not able to predict how much time
there will be needed to debate the bill,it has been difficult
to have the bill scheduled and so I am still trying to deal
with thatagreement on time for the floor. I am continuing to
work on bringing the bill before the fullSenate.
I would like at this time to call on Senator Tester for any
opening remarks that the Senatormay have.
STATEMENT OF HON. JON TESTER,
U.S. SENATOR FROM MONTANA
Senator Tester. Well, thank you, Mr. Chairman. I am sorry I
didn't have more time to get here to hear your remarks so I
will keep my opening statement very, very short.
This is a different kind of war than what we have had in
previous times, where a large number of Guard and Reservists
are being called onto the battlefield. When they come back,
they need to have the labor opportunities there that they had
when they left.
I come from a small town in north central Montana and I am
still a bit of an outsider when I come here, but one of the
things that always amazes me about Washington, D.C. is the size
of the bureaucracy. I mean, it is huge. If we are not ensuring
that the veterans who come back have the job opportunities and
the agencies that serve them are not living by the law, they
don't have the opportunities under the law, it is a serious
misstep by the Federal Government.
I will just tell you that if we don't know who is doing or
who is supposed to be doing this job, I would hope that, Mr.
Chairman, we don't create another bureaucracy to do it. I hope
we hold the people accountable who are supposed to do the job
to do the job, because that is really what needs to happen. I
think this is a very, very serious issue. I think we are
holding this hearing, because quite honestly, if you put
yourselves in the shoes of the Guard or the Reservists, or
active military, as far as that goes, that get pulled into the
field of battle, away from their family, in a foreign country,
under incredible pressures, under incredible duress, and then
to have them come home and they aren't given the opportunities
that they were promised when they left is unforgivable.
So with that, Mr. Chairman, I look forward to this hearing
and I appreciate you calling it and I look forward to the
testimony.
Chairman Akaka. Thank you very much, Senator Tester.
Senator Murray?
STATEMENT OF HON. PATTY MURRAY,
U.S. SENATOR FROM WASHINGTON
Senator Murray. Well, Mr. Chairman, thank you very much,
and I know that Ranking Member Burr is right behind me here, as
well, but I want to thank you for calling this important
hearing on the employment rights of our Nation's veterans.
We all know that our brave men and women are called upon to
serve our country. They put their lives on the line for us and
our safety, and when they return home, it is our responsibility
to fulfill all of our promises to them. So one of them should
be that they shouldn't have to worry about whether or not they
are going to lose their jobs if they leave to work and serve us
overseas.
Mr. Chairman, this hearing is really going to ask us a
pivotal question. Are we adequately protecting the employment
rights of today's servicemembers and veterans?
Despite the laws that we have put in place to protect them,
I still hear from my constituents who have run into problems at
work because of their military obligations. We have to do
everything we can in our power to ensure that our veterans, our
Guard and Reserve members, and their families aren't penalized
by their service to our country. These citizen-soldiers make
the all-volunteer military possible and we have got to make
certain that we aren't driving people out of the military
because they are concerned about protecting their jobs.
Mr. Chairman, I have to leave this hearing, unfortunately,
early, but I am looking forward to hearing the witnesses today
and reviewing their testimony about what we can do to
strengthen the protection of veteran employment rights.
I just want to mention two main concerns. The first I have
is about a test program that is looking at which Federal agency
should be responsible for our Federal employees' claims under
USERRA. Over the last 2 years, the Labor Department's Veterans'
Employment and Training Service in the Office of Special
Counsel participated in that demonstration project which
applies two different approaches to review the Federal claims
under the law, and as we move forward on that issue, I want to
make sure that we avoid unnecessary confusion for veterans who
are seeking claims under that system. I have some concern about
splitting the responsibility between two agencies that might do
that and might lead to some of our veterans asking why some of
them go through a different process than others. I think that
is the wrong message to send to our veterans and I look forward
to working with my colleagues to find the right approach to
that.
The second concern I wanted to mention really quickly is
complaints by Guard and Reserve members and how they are being
handled. This year, I have met with many veterans, especially
Guard and Reserve, who have told me that they have had
difficulty getting employment assistance once they are
demobilized and others who have said that they had no idea that
employment services were available and weren't aware that
USERRA protected their rights to get their old jobs back.
So given those concerns, I am looking forward to hearing
the testimony this morning about how the Labor Department has
worked with the Office of Special Counsel to ensure that our
servicemembers receive the attention they deserve, and for Mr.
Byrne, I hope to hear how the OSC can make a connection with
our veterans and how we can prevent any of this confusion for
our veterans who are seeking claims.
So thank you very much, Mr. Chairman. I look forward to the
testimony this morning.
Chairman Akaka. Thank you very much, Senator Murray.
Senator Burr?
STATEMENT OF HON. RICHARD BURR, RANKING MEMBER,
U.S. SENATOR FROM NORTH CAROLINA
Senator Burr. Mr. Chairman, thank you. I apologize for my
tardiness to you and to our witnesses today. I would ask
unanimous consent that my opening statement be included in the
record.
Chairman Akaka. Without objection.
Senator Burr. I will forego reading it, even though it is
great practice for me. I welcome all of our witnesses today and
I thank you for holding this hearing, Mr. Chairman.
[The prepared statement of Senator Burr follows:]
Prepared Statement of Hon. Richard Burr,
U.S. Senator from North Carolina
Thank you, Mr. Chairman, and all of our panelists for being here
today. We are here to discuss a very important topic: whether we as a
Nation are doing enough to protect the civilian careers of those who
serve in our Armed Forces, particularly members of the Guard and
Reserve.
It is incumbent on all of us to recognize and honor the tremendous
sacrifices that these servicemembers and their families continue to
make and help ease their transition as they move forward. More than 60
years ago Congress recognized that those who serve our country in a
time of need should be entitled to resume their civilian jobs when they
return home. After Congress passed the first law providing reemployment
rights to servicemembers in 1940, President Roosevelt said these rights
were part of ``the special benefits which are due to the members of our
armed forces--for they `have been compelled to make greater economic
sacrifice and every other kind of sacrifice than the rest of us.' ''.
As we all know, the sacrifices by this generation of servicemembers
are just as profound. More than one and a half million Americans have
been deployed to fight in the War on Terror. In North Carolina alone,
nearly 1,600 members of the Guard and Reserves are serving today. Many
left behind not only family and friends, but valued civilian careers.
For them, the modern reemployment law, the Uniformed Services
Employment and Reemployment Rights Act, or USERRA, requires that they
be given their jobs back when they return home, with all the benefits
and seniority that would have accumulated during their absence.
Many employers are not only complying with this law but are going
above and beyond what's required in taking care of their Guard and
Reserve employees. In fact, last year a company in my home state--
Skyline Membership Corporation--joined a distinguished list of
employers that have received the Secretary of Defense Employer Support
Freedom Award. This award is the highest recognition that is given to
an employer who demonstrates extraordinary support of their employees
who serve in the Guard and Reserves. I am proud of Skyline's
leadership, and I encourage more employers to follow their lead.
While every employer should strive to meet or exceed the
requirements of USERRA, Congress has stressed that ``the Federal
Government should be a model employer'' when it comes to complying with
this law. In my view, this means the Federal Government should make
sure that not a single returning servicemember is denied re-instatement
to a Federal job. But unfortunately, we aren't completely there yet.
For those who encounter problems when they attempt to resume their
Federal jobs, Congress authorized a demonstration project to determine
whether they would be better served by having their complaints
investigated by the Office of Special Counsel rather than the
Department of Labor. Having looked over today's testimony on the
results of that demonstration project, I would make this general
observation: Many of the recommendations offered involve process--such
as improving data reliability and ensuring internal reviews. However,
the truly critical issue--and the one I am most interested in hearing
about today--is not about the process but about outcomes.
I want to know whether we are preventing USERRA violations from
occurring in the first place. When problems arise, are servicemembers
getting timely resolutions to their concerns? And are they satisfied
with the service they receive? Whether it is done by the Office of
Special Counsel or the Department of Labor, it must be our goal to make
sure that the answer to these questions is always ``yes.'' We owe
nothing less to those who have served and sacrificed so much for our
Nation. And I hope today we will come closer to determining how best to
structure this system to achieve that result.
As for the second focus of the hearing today, the Dole-Shalala
Commission recently recommended that Congress amend the Family and
Medical Leave Act to provide up to 6 months of leave for family members
caring for seriously wounded servicemembers. As we consider this
legislative change, I hope employers across the Nation will not wait,
but will act now to provide whatever accommodations they can to protect
the jobs of these family members. I hope employers will show their
gratitude for the sacrifices of our wounded servicemembers and the
sacrifices of their family members who are a critical part of their
recoveries.
Mr. Chairman, I take very seriously the Commission's recommendation
that we change the law toensure that the jobs of these family members
are protected, and I look forward to hearing from our witnesses about
how we can best go about implementing that recommendation. Given
thetremendous sacrifices of these family members, protecting their
livelihoods is simply the rightthing to do.
Thank you, Mr. Chairman, I yield the floor.
Chairman Akaka. I am pleased to introduce our first panel
this morning. Mr. George Stalcup is the Director of Strategic
Issues for the Government Accountability Office.
Mr. Stalcup, I want to also take a moment to thank you for
your cooperation with the Committee and the Committee staff
during preparation of this hearing. I know that it was set up
on a relatively short notice and I do appreciate your ``can
do'' approach and also the patience of our Committee Members,
as well.
It is good to have you, and I would now ask you to proceed
with your opening statement.
STATEMENT OF GEORGE H. STALCUP, DIRECTOR, STRATEGIC ISSUES,
U.S. GOVERNMENT ACCOUNTABILITY OFFICE
Mr. Stalcup. Thank you, Mr. Chairman. Chairman Akaka,
Ranking Member Burr, Senator Murray, Senator Tester, I am
pleased to be here today to discuss our work looking at the
demonstration project that has been described by the Chairman.
Today, I want to make three points. I want to talk about
the claims processing under the demonstration project. I want
to talk about the findings of our work, the recommendations
that we have made, and what actions have been taken against
those recommendations today. And I want to talk about some
factors that the Congress might consider related to extending
or not extending the demonstration project.
Under the demonstration, DOL continued to process USERRA
claims as it had prior to the demonstration, that is, using its
network nationwide and over 100 investigators. To investigate
its share of the USERRA claims, OSC instituted a centralized
approach within its Washington, D.C. headquarters with about a
half-a-dozen investigators and attorneys. OSC's other role
under USERRA, is handling claims referred to it at the request
of claimants after an initial investigation by Labor did not
resolve the claim, remained unchanged during the demonstration
project.
To assess the reliability of data, we reviewed a random
sample of claims processed by both entities. Our review of the
sample showed reliability problems with data at VETS. This is
the same data that they use to report to the Congress. For the
period of our review, the VETS database showed 202 claims being
opened. We determined, however, that this number included
duplicate, reopened, and transferred claims; and, in fact, only
166 unique claims had actually been investigated.
We also found errors in the data for both case closure
dates and for codes used to indicate the outcomes of its
investigations. Using corrected closure dates from our review
of the sample of cases, we estimated that VETS average
processing time for investigations opened and closed during our
review ranged from 53 to 86 days.
During the period of our review, OSC processed 269 claims
in an average of 115 days. In terms of data, we found the OSC's
case closed dates to be sufficiently reliable, but not the code
used to indicate outcomes of claim investigations.
Our review of the sample case files at DOL also showed the
claimants were not consistently notified of their right to have
their claims referred to OSC or to bring their claims directly
to MSPB. VETS failed to provide any written notice to half of
the claimants with unresolved cases, notified others of only
some options, and inaccurately advised others. Two contributing
factors may have been the lack of clear guidance in the VETS
USERRA users manual as well as a lack of an internal process
for reviewing investigator determinations before claimants were
notified.
During our review and citing our preliminary findings, DOL
officials required each region to revise its guidance
concerning the notification of rights, and then since our
review, DOL has taken additional actions. They have provided
more guidance to the field in terms of case closing procedures
to help ensure that claimants are clearly apprised of their
rights. They have drafted policy changes for the operations
manual that are due out in January. And they have begun to
conduct mandatory training on these revised requirements.
In addition, DOL officials have indicated to us that
beginning in January, all claim determinations will be reviewed
before closure letters are sent to claimants. These are very
positive steps, but it is important that DOL follow through on
these efforts.
If Congress decides to extend the demonstration project, it
will be important that clear objectives be set. There were no
such objectives in the legislation creating the current
demonstration project. For example, objectives could focus on
several areas that could help measure the quality of service to
claimants. Clearly articulated goals would also facilitate any
follow-on review to determine the extent to which those
objectives are achieved. In this regard, our earlier work could
provide a valuable baseline.
Congress may also want to consider some potential pros and
cons of options if the demonstration project is not extended.
For example, Congress could choose to return to the
predemonstration set-up where Labor investigated all USERRA
claims. In this regard, Labor has an infrastructure in place.
Further, all USERRA claims, both Federal and non-Federal, would
then be processed by a single agency. At the same time,
however, DOL has only recently taken or is still in process of
taking actions to correct the deficiencies we found and the
effectiveness of these actions has not yet been determined.
Congress could also decide to provide OSC the
responsibility and authority to handle all USERRA claims,
Federal claims. This would eliminate the lengthy two-phase
process currently carried out by DOL on all USERRA cases when
they are referred to OSC, but this may also require OSC to
expand its overall infrastructure, hire additional staff, and
make other operational changes.
As you stated, Mr. Chairman, most importantly, with the
Nation's attention so focused on those who serve our country,
it is vital that their employment and reemployment rights are
protected.
This concludes my prepared remarks and I would be happy to
answer any questions.
[The prepared statement of Mr. Stalcup follows:]
Prepared Statement of George H. Stalcup, Director, Strategic Issues,
U.S. Government Accountability Office
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
______
Responses to Post-Hearing Questions from the Committee to George H.
Stalcup, Director, Strategic Issues, Government Accountability Office
Dear Mr. Chairman:
On October 31, 2007, I testified before your committee at its
hearing on a Federal sector demonstration project on servicemembers'
employment rights claims under the Uniformed Services Employment and
Reemployment Act of 1994 (USERRA).\1\ The demonstration project
established by the Veterans Benefits Improvement Act of 2004 was set to
conclude on September 30, 2007, but through a series of extensions
continued through December 31, 2007.\2\ Following the hearing, we met
with key members of your staff to provide our perspectives on pending
legislation to amend USERRA.\3\ As discussed with your staff, the
following responses to post-hearing questions, which GAO received on
May 8, 2008, reflect the current situation. Because the demonstration
project ended on December 31, 2007, two questions are no longer
relevant.
---------------------------------------------------------------------------
\1\ GAO, Military Personnel: Considerations Related to Extending
Demonstration Project on Servicemembers' Employment Rights Claims, GAO-
08-229T (Washington, D.C.: Oct. 31, 2007).
\2\ See, section 204 of Pub. L. No. 108-454, 118 Stat. 3598, 3606-
3608, 38 U.S.C. Sec. 4301 note, Pub. L. No. 110-92, sections 106(3) and
130 (Sept. 29, 2007); Pub. L. No. 110-116, Division B, section 101
(Nov. 13, 2007); Pub. L. No. 110-137 (Dec. 14, 2007), and Pub. L. No.
110-149, section 1 (Dec. 21, 2007).
\3\ On December 13, 2007, S. 2471, ``USERRA Enforcement Improvement
Act of 2007'' was introduced in the Senate.
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______
Response to Written Questions Submitted by Hon. Daniel K. Akaka to
George H. Stalcup, Government Accountability Office
Question 1. You note in your testimony that DOL and OSC use two
different models to investigate Federal USERRA claims. Were you able to
determine whether these two different models produce different results
in terms of the accuracy of the findings?
Response. No. The objectives of our July report on the Federal
sector demonstration project were to (1) describe DOL's and OSC's
policies and procedures for processing Federal employees' USERRA claims
under the demonstration project; (2) identify the number of Federal
employees' USERRA claims that DOL and OSC received during the
demonstration project and the outcomes of these claims, including
average processing times; and (3) identify changes to Federal
employees' USERRA claims' processing since the demonstration project
began.\4\ An independent assessment of the accuracy of agency findings
on such cases is not typically our role.
---------------------------------------------------------------------------
\4\ GAO, Military Personnel: Improved Quality Controls Needed over
Servicemembers' Employment Rights Claims at DOL, GAO-07-907
(Washington, D.C.: July 20, 2007).
Question 2. I understand that you found the reliability of data at
both DOL and OSC was in question and that this could affect Congress'
ability to assess how well Federal USERRA claims are processed and what
changes are needed. I understand that at DOL you found an overstatement
in the number of claims and problems with case closure. Please expand
briefly on the problems with the data at OSC.
Response. At OSC, we found that the corrective action data element,
which OSC uses to describe the outcomes of USERRA claims, was not
sufficiently reliable for reporting specific outcomes of claims. In an
earlier report,\5\ we assessed the reliability of selected data
elements in OSC's case tracking system for USERRA claims by comparing
them to the source case files. Specifically, we compared electronic
data for 11 selected data elements (out of 90 unique data elements) in
OSC's database, OSC 2000, to the source case files for 158 randomly
selected closed cases received from October 1, 2004 through March 31,
2006. In that report, we assessed reliability by the amount of
agreement between the data in OSC 2000 and the source case files. For
the corrective action data element, we are 95 percent confident that as
many as 24 percent of the outcomes would not match between the case
tracking system and the source case files.
---------------------------------------------------------------------------
\5\ GAO, Office of Special Counsel Needs to Follow Structured Life
Cycle Management Practices for Its Case Tracking System, GAO-07-318R
(Washington, D.C.: Feb. 16, 2007).
Question 3. I thank you for articulating so well the potential
benefits and limitations of extending the pilot project. Do you believe
that an additional review could evaluate the effectiveness of the
actions DOL is taking to correct the deficiencies you identified in the
July report?
Response. As part of our on-going work, we follow up with audited
entities to determine the extent to which our recommendations have been
implemented. In my written statement, I reported on the status of DOL's
efforts to correct the deficiencies we identified in our July report.
We will continue to follow-up on these efforts. In addition, as we
discussed with your staff after the hearing, we could be asked to
review DOL's efforts after DOL has been afforded sufficient time to
address the deficiencies we identified and a sufficient quantity of
data has accrued upon which to base an analysis. We are happy to work
with your staff in determining the appropriate amount of time for DOL
to address deficiencies and accrue data.
Question 4. You state in your testimony that ``given adequate time
and resources, an evaluation of the extended demonstration project
could be designed and tailored to provide information to inform
Congressional decisionmaking.'' Would you be willing to work with the
Committee to design this evaluation?
Response. As stated in the introduction above, this question is no
longer relevant.
Question 5. In your opinion, do you believe there is anything to be
gained from extending the demonstration project or do you think we have
learned all that there is or at least all that can be learned about the
investigation and resolution process in order to make a decision on
jurisdiction?
Response. As stated in the introduction above, this question is no
longer relevant.
______
Response to Written Question Submitted by Hon. Jon Tester to George H.
Stalcup, Government Accountability Office
Question. You indicated in your statement that the data GAO
received was ``poor.'' Can you elaborate on that statement? Why was it
poor? What could be done to ensure that future data is of a higher
quality?
Response. Describing the quality of the data ``poor'' refers to our
findings that data for reporting outcomes were not sufficiently
reliable at both DOL and OSC and that data on the number of claims and
the time to investigate claims was not sufficiently reliable at DOL.
As we state in our testimony, at OSC, we found that the corrective
action data element, which OSC uses to describe the outcomes of USERRA
claims, was not sufficiently reliable for reporting specific outcomes
of claims. At DOL, we found that the closed code, which DOL's Veterans'
Employment Training Service (VETS) uses to describe the outcomes of
USERRA claims, was not sufficiently reliable for reporting specific
outcomes of claims. At DOL, concerning the number of Federal employees'
USERRA claims received for investigation, we found that for February 8,
2005, through September 30, 2006, VETS received a total of 166 unique
claims, although 202 claims were recorded opened in VETS's database.
Duplicate, reopened, and transferred claims accounted for most of this
difference. Additionally, during our review of a random sample of
VETS's case files to assess the reliability of VETS's data, we found
the dates recorded for case closure in VETS's database were not
reliable; that is, VETS's database did not reflect the dates on the
closure letters, which VETS uses to indicate completion of the
investigation, in over 40 percent of sampled claims. VETS uses the date
recorded for case closure in its database to report to Congress on the
number and percentage of claims it closes within 90, 120, and 365 days.
To ensure that accurate information on USERRA claims' processing is
available to DOL and to Congress, we recommended that VETS 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. We also recommended that VETS incorporate into its USERRA
Operations Manual previously issued guidance on the appropriate date to
use for case closure in VETS's USERRA database.
As discussed at the hearing, at a time when the Nation's attention
is focused on those who serve our country, it is important that
employment and reemployment rights are protected for Federal
servicemembers who leave their employment to perform military or other
uniformed service. We remain available to discuss the above questions
and related issues with your staff. For additional information, please
contact me.
Chairman Akaka. Thank you very much, and I want to thank
you for articulating so well the potential benefits and
limitations. Do you believe that additional GAO review could
evaluate the effectiveness of the actions DOL is taking to
correct the deficiencies?
Mr. Stalcup. Yes, I do.
Chairman Akaka. You stated in your testimony given adequate
time and resources, an evaluation of the expanded demonstration
project could be designed and tailored to provide information
to respond to Congressional decisionmaking. Would you be
willing to work with the Committee to design this evaluation?
Mr. Stalcup. Absolutely, Mr. Chairman. We believe there are
some proxies out there that could be used to provide some
measurement of what is being done and we would be more than
happy to work with your staff, your counterparts in the House,
and figure out what a meaningful set of those proxies would be
in making those assessments.
Chairman Akaka. You note in your testimony that DOL and OSC
use two different models to investigate Federal USERRA claims.
Were you able to determine whether these two different models
produced different results in terms of the accuracy of the
findings?
Mr. Stalcup. Well, the fact is, Mr. Chairman, we did not
look at or try to assess the determinations made on these
cases. It is not GAO's role to come in and actually second-
guess what agencies have decided in terms of legal
determinations. What we have done obviously is to look at the
quality of the data and there are other things out there that
we could take an additional look at, and I think with those
things collectively be helpful to those that are making the
decision in Congress as to which way to go.
Chairman Akaka. I understand that you found the reliability
of data at both DOL and OSC was in question and that this could
affect Congress's ability to assess how well Federal USERRA
claims are processed and what changes are needed. I understand
that at DOL, you found an old statement in the number of claims
and problems with case closure. Please expand briefly on the
problems with the data at OSC.
Mr. Stalcup. Sure. At OSC, the problems with data
manifested themselves in a couple of areas. First of all, in
the database the DOL uses to report information to the
Congress, the number of cases in there reflected 202 cases. In
looking at those cases, we determined that there were
duplications, there were closed cases that had been reopened,
and there were cases that had been transferred that should not
have been included in that total. In fact, the total was 166.
We also found problems in closed dates in the system where
we tried to match the date on the letter that actually went to
the claimant and the dates in the systems. In 40 percent of the
cases they did not agree, and for those that did not agree, the
difference was typically about 60 days.
Chairman Akaka. Thank you very much, Mr. Stalcup.
Now I would like to turn it over to the Ranking Member,
Senator Burr, for his questions.
Senator Burr. Thank you, Mr. Chairman.
You noted in your testimony if the demonstration project
were extended, Congress should seek clear objectives. What are
those clear objectives?
Mr. Stalcup. Well, we have talked about that and we have a
set of eight or ten factors that we think could all lend
themselves collectively to being framed in terms of objectives
and that would provide a basis for us or someone to come in at
a later time and look at those and make an assessment,
including whether or not the data problems, which are very
problematic, I think cleaning up of those data objectives would
greatly facilitate such an assessment. But we would be glad to
work with your staff, your counterparts in the House to come up
with a meaningful set of those objectives that could be used
and relied on.
Senator Burr. Mr. Stalcup, you said the current
demonstration project is not specific in terms of the
objectives to be achieved. Share with me, if you will, how does
GAO go in and assess a demonstration program that didn't have
clear objectives.
Mr. Stalcup. Well, that is the point I think we tried to
make in our statement, that without those clear objectives, it
was difficult. If there is nothing to measure against, then it
puts us in a tough situation.
Senator Burr. But I am trying to get you a little further
to share with us, what is it you were looking for? What is it
that you used without having some end point that the
demonstration project was trying to prove?
Mr. Stalcup. Well, we met with Members of this Committee's
staff, and Members on the House staff from the get-go. Some of
the things we found early on, together with those staff
Members, is that the processes of the two places were, in fact,
different. I think there was some thinking when the
demonstration project was laid out that we would end up at a
point where we would have two comparable sets of data--two
comparable sets of operations that we could compare.
Unfortunately, it became evident early on that because of the
differences in those operations, in addition to the data
problems, that we really had an ``apples and oranges'' kind of
thing and so it became difficult to make those comparisons.
So what we did was we focused on the data quality issues.
We focused on the notification of claimants issues in agreement
with Members of your staff, and that is what we have reported
on.
Senator Burr. How does one assess where we go to from here?
I mean, clearly, I have looked at your report, heard your
testimony. The volume of cases taken matched with the number of
people working on it and the average length of days, if I had
no involvement in it, I would look at it and say, this is
ludicrous. I am not sure I would be specific in any one area.
It doesn't work. It is not working. What do we need to do?
Mr. Stalcup. Well, we need to clean up the data problems
and that is first and foremost. And we believe, based on what
we have been told by DOL, that they are well on their way to
doing that. But, without good data not only can it become
difficult for us to perform that assessment, it makes it
difficult for the agency to manage their case files, and to
know where they stand, and to report to Congress.
Senator Burr. Do you think it would help at all if veterans
were given options earlier--requesting referral to Office of
Special Counsel at the beginning or sooner in the process?
Mr. Stalcup. That probably is a question that may be better
answered by those two organizations: OSC and the Department of
Labor. I think there are some factors you need to think about.
If you start offering options to veterans as to where they are
going to go at what point in time, that could create a scenario
of some unintended consequences, such as them shopping for the
right result for them, maybe even the agencies being prone to
going out and advertising what they can do for the veterans. So
I think it is something to consider. I think we need to be
cautious.
Senator Burr. Well, I hear what you are saying. I sit here
frustrated a little bit, because we will hear from them and we
will hear from private attorneys, as well, that are an option
today for individuals to seek. I sit here with a firm belief
they shouldn't have to use that option, that we should have a
system that works. So it is somewhat frustrating to this
Member, because I think what you have designed for me is a
cultural problem.
I want to be fair to the Department of Labor, and I will
be. They are making progress, and I am hopeful that they are
because I think this can be done a lot more efficiently and a
lot more effectively than clearly what I have seen, but more
importantly, it displays to me just how bad it is from the
standpoint of GAO is usually very specific in what they have
gone in and assessed. And though I think what you did was an
excellent review, I am used to reading through a GAO report and
having a clear indication as to what we should be looking for.
Clearly you couldn't come to that conclusion. And the data is
so confusing that until you sort out the data, it is hard to
figure out what the next step is. Am I accurate in that?
Mr. Stalcup. You are, Senator Burr, and I understand where
you are coming from on that. It was an issue that we dealt with
throughout, not only amongst ourselves, but with the staff of
the Committee in sorting through those things. Yes.
Senator Burr. I thank you very much. I thank you, Mr.
Chairman.
Chairman Akaka. Thank you very much, Senator Burr.
Before I call on Senator Tester, in hearing Senator Burr's
questions, you made a statement here that for GAO in January,
all claims will be reviewed. You also mentioned that there were
202 claims and that OSC had 269 claims. My brief question is,
in January, you are going to review all claims. What will
happen for you to do that?
Mr. Stalcup. Thank you, Mr. Chairman. The point that we
make in the statement is that beginning in January, according
to the Department of Labor officials, they will institute an
internal review process that will look at all investigation
outcomes before those outcomes are sent to the claimant in a
letter. This is one area where we were able to look at both
agencies and kind-of do a comparison. The Office of Special
Counsel had a very rigorous review of all claim outcomes before
the letters were sent. The Department of Labor agreed with us
in terms of that finding and have moved to create an internal
review process that they tell us will begin in January.
Chairman Akaka. Senator Tester?
Senator Tester. Thank you, Mr. Chairman.
Were you able to tell to what extent the managers in the
Federal Government were trained to comply with USERRA?
Mr. Stalcup. Managers in both organizations receive some
training. I do believe the Department of Labor clearly, after
some of the points we made, became aware of some of those
points. Additional training has been designed and was initiated
in August--two months ago.
Senator Tester. What about the agencies that were having
the problem that the DOL and the OSC were--in other words, what
I am talking about is an agency like the Department of
Agriculture, Department of Commerce, those kind of agencies.
Were you able to tell if there were folks within the agencies
that were trained?
Mr. Stalcup. That was not part of our review, Senator.
Senator Tester. You talked about the data a lot with
Senator Burr and that it was inadequate or just flat bad. Why?
What is the reason for that? Who is the culprit here? Was it
inadequate knowledge of what should be gathered or was it bad
bookkeeping? Why is the data so bad?
Mr. Stalcup. A couple things come into play. Probably first
and foremost is the fact that the guidance in the USERRA manual
in terms of how to process, when to notify, et cetera, was not
very clear. They have made changes. There are updates to that
policy manual in process and that revised policy manual is due
out also in January.
Senator Tester. Who is responsible for the USERRA manual?
Mr. Stalcup. This manual that I am referring to now is the
one at Department of Labor.
Senator Tester. OK. Have you done or did you know of any--
investigation is a poor word, but has anybody taken a look at
whether the private sector has as many problems as the public
sector as far as granting the rights of returning veterans?
Mr. Stalcup. Haven't done that work, sir.
Senator Tester. And are you aware of any work that has been
done in that realm?
Mr. Stalcup. No. But I can probe a little bit when I go
back and if there is, I will let you know.
Senator Tester. It would be interesting to know, just to
see if it is very similar to what you found out----
Mr. Stalcup. Absolutely.
Senator Tester [continuing]. As far as what was going on
there.
Thank you for being here. I appreciate your testimony. I
look forward to the second and third panel. Thank you.
Chairman Akaka. Thank you very much, Senator Tester.
I want to thank you very much, Mr. Stalcup. This hearing,
of course, is very focused and I want to thank you for helping
us as much as you have in trying to address this. Again, I want
to say thank you for your testimony, your presence, and all
your help.
Mr. Stalcup. I appreciate the opportunity. Thank you very
much, Mr. Chairman and Members.
Chairman Akaka. Thank you.
And now I would like to introduce our second panel. First,
we will hear Charles Ciccolella, the Assistant Secretary for
Veterans' Employment and Training, U.S. Department of Labor.
Second, we will have the Honorable Jim Byrne, Deputy Special
Counsel, U.S. Office of Special Counsel. Mr. Byrne is
accompanied by Patrick Boulay, Chief of the USERRA Unit.
They are here today to share their thoughts and
recommendations with the Committee as well as to make their
cases as to why they are the appropriate agency to have
jurisdiction of the Federal sector claims.
Now we will hear first from Hon. Charles Ciccolella.
STATEMENT OF CHARLES C. CICCOLELLA, ASSISTANT SECRETARY FOR
VETERANS' EMPLOYMENT AND TRAINING, U.S. DEPARTMENT OF LABOR
Mr. Ciccolella. Thank you, Mr. Chairman. Good morning,
Senator Burr, Senator Tester. Thank you very much for the
opportunity to testify on behalf of the Department of Labor
concerning USERRA, the Uniformed Services Employment and
Reemployment Rights Act.
As the Committee knows, the USERRA law protects the job
rights of veterans and Members of the Armed Forces, including
the National Guard and Reserve. The law also prohibits
discrimination due to military obligations and it provides
reemployment rights to our servicemembers when they return from
their military duty.
The Department of Labor administers this law. The
Department of Labor's Veterans' Employment and Training Service
conducts outreach and education for employers and
servicemembers--the employers include the Federal Government--
and investigates complaints by servicemembers and veterans.
To accomplish this mission, we work very closely with the
Department of Defense's Employer Support of the Guard and
Reserve. We also work very closely with the Department of
Justice and the Office of Special Counsel when we are unable to
resolve complaints and they are referred for representation and
enforcement.
Since 2001, we have done many things to make USERRA more
effective. New regulations spell out in common language the
employers' obligations and the employees' rights. The new rules
make it easier to understand the law and actually help the
employer understand how to deal with typical issues that may
arise when the employees are called to military duty. We have
introduced online complaint filing through our USERRA
Electronic Advisor and that helps our users better understand
not only the law, but also if they have a USERRA violation, how
to make the complaint, because it walks them right through it.
Forty-three percent of the complaints that we get where we do
an investigation actually come from online, and that is up from
31 percent last year.
Employers are now required to post a USERRA notice to their
employees, thanks to the wisdom of the Congress which dictated
that, and VETS has also stepped up our training for USERRA
investigators. We have also designated senior investigators. I
think Mr. Stalcup alluded to some of the duties of those
individuals because they now review all of our cases that are
done by our line investigators.
Our investigators take their work very seriously and we
vigorously investigate complaints and we make every effort to
bring employers into compliance. We do this through a network
of over 100 trained investigators who are located in every
State and territory. These same individuals investigate
complaints of veterans' preference and they conduct extensive,
continuous USERRA education and outreach to employers.
When we are unable to bring employers into compliance and
resolve complaints, we work with the servicemembers to assist
in having their case referred to Justice if it is the case of a
private employer or a State or local government, or the Office
of Special Counsel in the case of Federal employees. We have
excellent working relationships with both of these enforcement
agencies.
This hearing is about the OSC-VETS demonstration project.
It is a multi-year demonstration where roughly half of the
Federal sector USERRA cases are investigated by OSC and the
other half are investigated by VETS. I think the demonstration
has had some very positive results. The agencies have cross-
trained, and in particular, OSC has been very helpful in
teaching us about prohibited personnel practices. In addition,
our two agencies meet by phone or in person monthly to discuss
USERRA issues in the Federal Government. So the working
relationships are very, very good.
The Government Accountability Office, as Mr. Stalcup just
talked about, recently concluded their review of the VETS
demonstration and recommended that VETS improve procedures to
ensure that the claimants are advised of their right to have
their case referred to OSC or to DOJ. The GAO recommended that
VETS develop some internal mechanisms for unresolved claims
before VETS notifies the claimant that their case will be
closed. GAO also recommended that VETS put into place internal
controls to ensure that our database and our reporting are more
accurate with regard to case closure dates and the outcomes of
these claims.
As mentioned before, we are addressing each of these
recommendations. Our staff has received new instructions on
notifying claimants of their referral rights. We have
incorporated these instructions into our operations manual that
comes out in January and we conduct pretty regular training on
this now. We also conduct investigator conference calls to
discuss proper investigative procedures and reinforce them.
We are developing some distance learning programs for our
investigators and we have corrected the problem of duplicate
cases. I would be happy to talk about that in the question and
answer period.
As I mentioned, I do believe the demonstration has had
positive results. I also believe the demonstration has served
its purpose and should be terminated. As a result of our USERRA
training, the OSC-VETS demonstration project and the GAO
review, I believe VETS is better positioned than ever to handle
the Federal sector USERRA cases. We already handle 95 percent
of all USERRA cases. The GAO found that VETS investigates or
resolves these cases faster than OSC. Mr. Stalcup talked about
that earlier. We resolve 95 percent of the Federal sector cases
without having those cases go to OSC for referral.
I believe we have the knowledge, skill, and experience. Our
staff has years of experience. They are all veterans and they
know USERRA and they know how to resolve the cases. With our
presence in every State, we are more likely to go face-to-face
with an employer, which is really the best way to find out and
collect your evidence.
Our approach is always to protect the veterans' employment
rights and to get their jobs back while making sure that there
is a good relationship between the employer and the employee,
so the employee has a place to come back to. We not only
protect servicemembers' USERRA rights, we also protect their
veterans' preference, we provide transition employment
assistance to all servicemembers before they leave the
military, and we have veterans' employment representatives in
the workforce who do job counseling and job referral and job
placement. So, we are there to ensure not only their employment
and reemployment rights, but we are also there to make sure
that, in any event, their employment needs are taken care of.
Finally, I would just say that I believe that the second-
level review of USERRA cases is very important. If VETS
investigates a complaint and we are unable to resolve the
complaint, then that complaint can be referred to OSC and the
veteran will receive a second review of the complaint. I think
this is very important. But, it is not happening in the cases
that OSC is now investigating.
I want to thank you for the opportunity to appear before
you today and I would be pleased to respond to your questions.
[The prepared statement of Mr. Ciccolella follows:]
Prepared Statement of Hon. Charles S. Ciccolella, Assistant Secretary
for Veterans' Employment and Training, U.S. Department of Labor
Chairman Akaka and Ranking Member Burr, and distinguished Members
of the Committee:
I am pleased to appear before you today to discuss issues relating
to the Uniformed Services Employment and Reemployment Right Act
(USERRA) program.
The principal programs and services of the Department of Labor's
(DOL) Veterans' Employment and Training Service (VETS) focus on three
areas:
<bullet> Providing employment services for veterans in America's
publicly funded Workforce Investment System (One-Stop Career Services)
<bullet> Providing transition assistance for separating military
members
<bullet> Protecting servicemembers' employment rights
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
I will focus today on protecting servicemembers' employment rights
under USERRA.
the uniformed services employment and reemployment rights act
USERRA protects the public and private sector civilian job rights
and benefits of veterans and members of the armed forces, including
National Guard and Reserve members. USERRA also prohibits employer
discrimination due to military obligations and provides reemployment
rights to returning servicemembers. VETS not only investigates
complaints by servicemembers and veterans, it also administers a
comprehensive outreach, education, and technical assistance program
here in the United States and around the world.
VETS works closely with the Department of Defense's (DOD) Office of
the Assistant Secretary for Reserve Affairs and Employer Support of the
Guard and Reserve (ESGR) to ensure that servicemembers are briefed on
their USERRA rights before and after they are mobilized. We conduct
continuous USERRA outreach and education to inform servicemembers and
employers on their rights and responsibilities under the law. Since
most complaints result from a misunderstanding of the USERRA
obligations and rights, we took an important step in 2005 to make it
easier to understand the law by promulgating clear, easy-to-understand
regulations in question and answer format. VETS has provided USERRA
assistance to over 480,000 servicemembers, employers and others.
We have also made it easier for a servicemember to determine if he
or she has a valid complaint and if so, to file a USERRA complaint
online through our interactive USERRA elaws Advisor, which provides the
user with information on eligibility and rights and responsibilities
under the law. The Advisor is available 24 hours a day, 7 days a week,
at www.dol.gov/elaws/userra.htm.
We vigorously investigate complaints, and when employers do not
comply with the law, we make every effort to bring them into
compliance. We do this through a network of over 100 highly trained
investigators located throughout the Nation who investigate claims of
violations of USERRA and Veterans' Preference. These same individuals
also conduct extensive compliance assistance outreach to employers and
servicemembers in their states.
VETS coordinates with ESGR, the Office of Special Counsel (OSC),
and the Department of Justice (DOJ) to ensure the employment rights and
benefits for returning servicemembers are protected. As explained in
their statement provided for this hearing, ESGR engages in a number of
efforts to ensure employer support for the Guard and Reserve is
sustained. ESGR also reinforces the relationship between employers and
employees through informal USERRA mediation. DOJ and the OSC help
enforce USERRA by representing USERRA complainants when the Department
of Labor is unable to resolve the complaint and/or when the
servicemember or veteran requests their case be referred.
VETS has a decades-long history of protecting the rights and
interests of American service men and women employed in both the public
and private sectors by investigating complaints under USERRA and its
predecessor laws. Complaints under USERRA peaked in 1991 following
mobilizations for Operation Desert Storm, when claims topped 2,500.
After 9/11, USERRA complaints rose again, from approximately 900 per
year to approximately 1,500 in fiscal year 2004 and fiscal year 2006.
Complaints in fiscal year 2007 decreased to 1,400. As the chart below
shows, complaints during the Global War on Terror have never approached
their Desert Storm high. We attribute much of this result to VETS'
comprehensive outreach to servicemembers and employers and to the
agency's user-friendly 2005 regulations.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
demonstration project with the office of special counsel (osc)
In 2004, Congress passed the Veterans Benefits Improvement Act
(VBIA). Section 214 of that Act required the Secretary of Labor and the
OSC to carry out a multi-year demonstration project under which USERRA
claims made by Federal Government employees whose social security
number ends in an odd-numbered digit are referred to OSC for
investigation, resolution and enforcement. The Government
Accountability Office (GAO) evaluated the demonstration project and
published the report of its evaluation in July of this year. The
demonstration project was to conclude at the end of September 2007, but
the current Continuing Resolution extended the demonstration project
through November 16, 2007.
Since inception of the pilot on February 8, 2005 through the end of
fiscal year 2007, VETS received 3,792 USERRA complaints. Of those, 614
(16.2 percent) were Federal cases that were subject to the
demonstration. VETS transferred 288 of those Federal cases to OSC under
the demonstration.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The demonstration project has produced several positive effects.
VETS worked closely with OSC throughout the project to improve our
investigators' ability to identify potential ``mixed cases,'' which are
USERRA cases that may also include related prohibited personnel
practices under the Federal civil service laws. VETS also spurred
closer ties by convening monthly meetings in which DOL and OSC
officials discuss and resolve USERRA issues. In addition, VETS is
addressing several data collection practices that GAO identified in its
study of the demonstration project.
Recently, there has been discussion about whether to continue the
demonstration project. We believe that the Department of Labor is
better positioned than ever before to serve the needs of all veterans,
including those who work in the Federal sector. We also believe that
splitting USERRA claims between the two agencies is not in the best
interests of veterans.
First, VETS should continue to investigate all USERRA claims,
Federal or nonFederal, because we are a veterans-focused agency whose
sole mission is to serve the workplace needs of separating
servicemembers and veterans. We accomplish our mission through a
nation-wide network of highly skilled Federal employees who are
employment specialists. Almost all are veterans themselves. They are
trained to meet the many workplace employment needs of today's
servicemembers.
VETS' Federal employment specialists are located where veterans
need them most--in all 50 states, the District of Columbia, and Puerto
Rico. These specialists conduct outreach and provide technical
assistance to employers, servicemembers, veterans, and veterans'
organizations on employment and reemployment issues at the national,
state and local levels, including at locations where servicemembers are
demobilized. One frequently overlooked fact is that the vast majority
of reemployment rights problems are resolved by VETS before a USERRA
claim is ever filed. This is done at the local level through direct
informal technical assistance that helps returning servicemembers
secure their employment and reemployment rights in accordance with the
law.
Finally, the objectives of the demonstration project were to
determine whether transferring USERRA cases involving Federal employers
to OSC would result in ``improved services to servicemembers and
veterans'' or ``reduced or eliminated duplication of effort and
unintended delays in resolving meritorious claims.'' To our knowledge,
neither result has been realized.
VETS is proud of its record in enforcing this statute since its
enactment, including its continuous efforts to improve services. For
example, over the past 10\1/2\ years:
<bullet> 91 percent of Federal USERRA cases were resolved by VETS
without need for referral to the Office of Special Counsel;
<bullet> 83 percent of ``meritorious'' Federal USERRA cases
resolved by VETS (claims granted or settled) reached resolution within
90 days.
I believe that the USERRA protections of servicemembers and
veterans are best served by VETS retaining the primary investigative
authority for all USERRA cases, regardless of employer.
recommendations of gao's report on dol/osc demonstration project
GAO's Report (GAO-07-907, July 2007) that evaluated the
demonstration project recommended that VETS institute improved
procedures to ensure claimants are notified of their right to have
their case referred to OSC, if a Federal case, or to the Department of
Justice, if a nonFederal case, and that our investigators undergo
mandatory training on those procedures. The report also recommended
that VETS develop and implement an internal review mechanism for all
unresolved claims before claimants are notified of determinations and
cases are closed, to help ensure adherence to procedures and standards.
Finally, GAO recommended that VETS implement internal controls to
ensure that our investigations database accurately reflects the number
of unique claims, the dates that these claims were closed and the
outcomes of the claims.
VETS is actively addressing the issues raised in GAO's Report. VETS
has taken positive steps to address each of these recommendations. For
example:
<bullet> VETS investigative staff received new instructions on
notifying claimants of their right to referral and on recording the
appropriate closure date for a claim.
<bullet> These instructions have been incorporated into the revised
USERRA Operations Manual, which will be field-tested in November and
fully implemented in January 2008. The new manual will also clarify
procedures for documenting case outcomes and recording them correctly
in the VETS investigative database.
<bullet> VETS investigators have all participated in mandatory
conference calls reinforcing procedures for notifying claimants of
their right to referral. In addition, regional investigator training is
being conducted in each of the VETS regions and this training will also
focus on these notification procedures.
<bullet> VETS is developing an on-line distance learning module for
investigators that will include this instruction.
<bullet> VETS has already identified ways to correct previous
reporting practices that resulted in duplicate cases being reported. We
are working with GAO to ensure that issues identified by GAO
surrounding duplicate cases are addressed.
In sum, the demonstration project has proved valuable to VETS. We
have institutionalized a close working relationship with OSC that will
continue to pay 6 dividends long after the project comes to an end. In
addition, GAO's audit identified several areas in which our
investigations and reporting could be improved and, as mentioned, we
are now addressing those areas.
VETS is committed to continuous improvement of our USERRA
investigative processes and our reporting to Congress on
investigations. As a result of that commitment, we have made a number
of investments to our USERRA program, and more are planned. An
investment in VETS' USERRA program is an investment in protecting the
employment rights of all servicemembers and veterans covered under
USERRA, regardless of whether their employer is the Federal Government,
a state or local government, or a private entity.
For these reasons and others I have already highlighted, we believe
all USERRA investigations should be conducted by VETS.
protecting jobs for caretakers of wounded warriors
The Committee also asked me to address the issue of providing
employment protections to family members of injured servicemembers.
On March 6, 2007, President Bush issued an executive order
establishing the President's Commission on Care for America's Returning
Wounded Warriors ``to provide a comprehensive review of the care
provided to America's returning Global War on Terror service men and
women from the time they leave the battlefield through their return to
civilian life.'' Former Senator Bob Dole and former Secretary of Health
and Human Services Donna Shalala co-chaired the Commission. On July 30,
2007, the Commission transmitted its report to the President, entitled
Serve, Support, Simplify: Report of the President's Commission on Care
for America's Returning Wounded Warriors (the Report).
The Report recommended amending the Family and Medical Leave Act
(the FMLA) to allow up to 6 months of leave for a family member of a
servicemember who has a combat-related injury. The Administration
strongly supports the Commission's recommendation to provide leave and
believes that it should be implemented promptly. However, some
modification is necessary to address the mobile nature of military
families.
First, in this situation, we believe that it is more helpful to
utilize the FMLA as a starting point rather than amend the law because
of practical difficulties that would make it difficult to achieve the
necessary protections for military families. The statutory provisions
on the duration of leave, the serious health conditions that entitle an
employee to leave, and the procedures for certification of health
conditions that are central to the FMLA may not provide the most
appropriate structure for effectuating the Commission's recommendation.
We believe that it is more appropriate to create a new statute with
a new leave concept based at least in part on the FMLA, but with
several important adjustments. Second, although the Commission
indicated that the leave should be available to employees who meet the
FMLA's ``other eligibility requirements,'' it does not appear that the
Commission considered the unique hardship that the FMLA eligibility
requirements would impose on families of servicemembers.
For example, the FMLA limits eligibility for job-protected leave to
employees who have been employed by their employer for at least 12
months and who have worked at least 1,250 hours for their employer in
the preceding 12-month period. Congress gave careful consideration to
establishing those eligibility requirements when it enacted the FMLA.
But because military families, and more specifically the spouses and
children of servicemembers, often move from one city to another every
few years as the servicemember receives new assignments, a significant
number of family members of combat-wounded servicemembers would not be
eligible for leave under the FMLA under the statute's prior service
requirements.
The Department does not believe that the Commission intended to
exclude those individuals from the job-protected leave addressed in its
recommendation.
With those concerns in mind, we believe that legislation
implementing the Commission's recommendation should be guided by the
following principles:
1. Spouses, parents, and children of a recovering servicemember
should be able to take up to 26 weeks of unpaid, job-protected leave to
care for the servicemember within the 2 years following injury.
2. Employees should be able to take the leave all at once or spread
it out over time.
3. Employers should continue to maintain any health coverage for
the employee during the period of leave.
4. Employees and employers should be able to substitute available
paid leave for unpaid military caregiver leave.
5. At the end of the leave, the employee should be entitled to be
reinstated to the same position or an equivalent position.
6. Caregivers should not have to be employed by an employer for 12
months or work 1,250 hours in the preceding year to be eligible for
job-protected leave.
7. Taking military caregiver leave should not diminish an
employee's right to take leave under the FMLA for other reasons, such
as to care for a newborn baby or for an employee's own serious health
condition, subject to reasonable limits on the extent to which military
caregiver leave and FMLA leave may be combined to care for a recovering
servicemember.
The Administration has submitted ``America's Wounded Warrior Act''
to the Congress in order to implement the recommendations of the Dole/
Shalala Commission. Title III of this bill incorporates all of these
principles and provides a new form of leave for family members to care
for their wounded or injured servicemember with a combat-related
serious injury, disability, or physical disability. I would urge the
Congress to pass this legislation.
Our Nation owes an enormous debt of gratitude to our servicemembers
who are returning from their service in the Global War on Terror. The
Department of Labor is committed to maximizing employment opportunities
and protecting servicemembers' jobs as they answer the Nation's call to
duty. We have a special obligation to those who are seriously wounded,
ill, or injured, and to their families.
Thank you for the opportunity to be with you today. I am prepared
to respond to your questions.
______
Post-Hearing Questions Submitted by Hon. Daniel K. Akaka to
Charles S. Ciccolella, Department of Labor
Question 1. This first question is for both DOL and OSC Our final
witness this morning, Mr. Mathew Tully, an attorney specializing in U-
Sarah law, will testify that he believes that the federal government
could save hundreds of millions of dollars by abolishing DOL
involvement in U-Sarah enforcement and mandating the award of
attorney's fees and litigation costs when a claimant successfully
proves a case of discrimination or retaliation. Please comment on that
view.
Question 2. GAO found that there were problems with the consistent
notification to claimants of their rights to pursue their claims
through OSC or through the Merit Systems Protection Board. It is my
understanding that you have begun to take steps to correct this
situation. Please update the Committee on where you are in terms of
mandatory training of VETS personnel on this issue?
Question 3. What is the status of your plans to complete revision
of your U-Sarah Operations Manual?
Question 4. It is particularly troubling to me that the ``closed
code'' used by VETS to describe the outcome of claims was found to be
not sufficiently reliable by GAO What steps have you taken to improve
the reliability of this data?
Question 5. What are the merits of having all claims--both federal
and non-federal--reviewed and processed by one entity versus the merits
of having an agency with institutional experience with federal sector
enforcement handle those claims?
Question 6. What funding and staffing implications, if any, would
there be if the federal sector claims were transferred to OSC?
Question 7. I'm pleased to see some positive results flowing from
the demonstration project--especially the closer collaboration and
cooperation between OSC and DOL If the demonstration project is
discontinued, will there still be interactions, such as monthly
meetings, to drive this collaboration?
Question 8. You cite that over the past 10 years, 83 percent of
``meritorious'' federal U-Sarah claims were resolved by VETS within 90
days. What percentage of claims filed does this represent? In other
words, what percentage of claims were deemed to be without merit?
Is there any record kept of those deemed to be without merit in
order to track whether the claimant subsequently sought and received
favorable judgment in a legal proceeding?
______
Response to Written Questions Submitted by Hon. Daniel K. Akaka to
Charles S. Ciccolella, Department of Labor
Dear Mr. Chairman: I write to respond to your letter requesting
feedback on testimony provided by Mr. Mathew B. Tully at the October
31, 2007 hearing on the Uniformed Services Employment and Reemployment
Rights Act of 1994 (USERRA). In his testimony, Mr. Tully raised a
number of issues and made several recommendations. Mr. Tully's
fundamental concern is that the Department's Veterans' Employment and
Training Service's (VETS) enforcement of USERRA is a serious problem,
which he proposes to fix largely by shifting enforcement from the
Federal Government to private attorneys like himself.
As an initial matter, a comparison of Mr. Tully's firm's USERRA
caseload and success rates with that of the Federal Government is
misleading. As Special Counsel Scott Bloch noted at the hearing, Mr.
Tully and his firm specialize in a narrow class of cases in which
servicemembers were denied military leave by their Federal employers
before 2001.
The Department of Labor has long believed that most military leave
cases can be resolved quickly and efficiently at an administrative
level because they do not, for the most part, involve complex
employment issues. For this reason, VETS, the Office of the Special
Counsel, the Office of Personnel Management, and the Department of
Defense, have ensured that servicemembers are able to resolve their
military leave cases through a streamlined administrative process, that
in most cases, eliminates the need for a USERRA case to be opened at
all. While individuals remain free to bypass this process and retain
private attorneys, it is not clear that attorneys in these cases
necessarily add value. See, e.g., Jacobsen v. Department of Justice,
103 MSPR 439, 442 note (MSPB Sept. 22, 2006) ($8700 in attorneys fees
denied where attorney obtained 16 hours of restored leave through
litigation after the employing agency had determined that 20 hours of
leave may have been charged incorrectly), aff'd 500 F.3d 1376 (Fed.
Cir. 2007).
I would also note that in contrast with the practice of most
private law firms, VETS accepts all USERRA cases that it receives. This
is true regardless of the complexity of the issue involved, the
complaint's relative merits, or the chances of success. Private law
firms, on the other hand, can screen cases on many different levels,
often avoiding the most difficult cases. A direct comparison between
private law practices and public sector practices is not a valid
comparison. Not only does Mr. Tully ignore this fact, he cites a
particularly inapt proxy for VETS' success rate: the percentage of
cases VETS refers for prosecution. A more accurate figure, of course,
would have been the percentage of claims that VETS receive that are
resolved in the claimant's favor. In fiscal year 2006, this figure was
30 percent, which was similar to the 27 percent rate claimed by OSC.
Mr. Tully also offered statistics that present an incomplete
picture of VETS' USERRA caseload. He claims, for example, that his firm
processed 1,802 claims between February 8, 2005 and September 30, 2006,
and that VETS only handled 166 cases during this time. However, the 166
VETS cases he cited were the Federal-sector cases VETS investigated
during that period, not the total number of cases that VETS handled. A
more complete picture would have noted that in addition to those
Federal cases, VETS opened over 2,000 non-Federal cases during that
period. Those cases were professionally investigated at no cost to the
claimant, included all claims filed with VETS, not just those
considered ``winnable,'' and involved multiple and complex employment
issues, not simple cases of reinstating military leave to Federal
employees. Furthermore, the claimants were informed of their right to
pursue their case with a private attorney, if they so chose.
The Department, of course, acknowledges the important role that the
private bar plays in securing the reemployment and nondiscrimination
rights of servicemembers. We have serious concerns, however, about any
proposal that would eliminate the right of servicemembers to secure the
type of valuable help that VETS has been providing for many decades at
no cost to claimants. In addition to preparing cases for litigation,
the Department of Labor has consistently sought to resolve USERRA
issues and disputes quickly and efficiently at the lowest level
possible, thereby preserving working relationships between employers
and their employees. Claimants should retain the option of pursuing
such resolutions rather than be forced to pursue relief through costly,
adversarial and frequently hostile litigation.
Thank you for your continued support of our Nation's servicemen and
women and for your interest in USERRA. I would be happy to meet with
you or your staff to discuss any of Mr. Tully's proposals in more
detail.
Chairman Akaka. Thank you very much, Mr. Ciccolella. Now we
will hear from Hon. Jim Byrne.
STATEMENT OF JIM BYRNE, DEPUTY SPECIAL COUNSEL, U.S. OFFICE OF
SPECIAL COUNSEL; ACCOMPANIED BY PATRICK BOULAY, CHIEF, USERRA
UNIT, U.S. OFFICE OF SPECIAL COUNSEL
Mr. Byrne. Thank you, Mr. Chairman. Chairman Akaka, Ranking
Member Burr, Senator Tester, good morning. Thank you for the
opportunity to testify on matters important to our
servicemembers, their families, and our national security. My
name is Jim Byrne and I am the Deputy Special Counsel for the
U.S. Office of Special Counsel, OSC. I am joined here this
morning by Patrick Boulay, Chief of the Office of Special
Counsel unit that investigates and prosecutes violations of the
Uniformed Services Employment and Reemployment Rights Act.
It is our privilege to enforce USERRA. Both as Deputy
Special Counsel and as a member of the United States Marine
Corps Reserve, I am proud of our work to protect the employment
rights of those who give of themselves for our country.
USERRA expanded OSC's role as the protector of the Federal
Merit System and Federal workplace rights. The Department of
Labor's Veterans' Employment and Training Services receives
USERRA claims to investigate and attempt to resolve with
employers. Cases that DOL-VETS cannot resolve may be referred
to OSC at the servicemember's request. We may then represent
the claimant before the Merit Systems Protection Board and the
U.S. Court of Appeals for the Federal Circuit.
Three years ago, the USERRA demonstration project gave OSC
exclusive investigative jurisdiction over certain Federal
sector USERRA cases to determine if we could provide better
service to Federal employees. Under the demonstration project,
OSC investigates over half of the Federal employee cases as
well as those in which the USERRA claim is related to a
prohibited personnel practice under OSC's jurisdiction.
Our work has important achieved results. Servicemembers
returning from active duty service have benefited from
corrective actions we have obtained--back pay, promotions,
restored benefits and seniority, time off, and case
settlements. We have obtained corrective action in more than
one-in-four USERRA claims. Our centralized process ensures
USERRA claims are resolved efficiently, thoroughly, and
correctly. In addition to obtaining corrective action for the
claimant, OSC also seeks systemic corrective action to prevent
future agency violations. We may help an agency modify its
leave policy or provide USERRA training.
OSC participated in the GAO demonstration project
evaluations and their report came late, leaving Congress with
little time to act before the project would end on September
30. We appreciate that Congress has extended the demonstration
project in the fiscal year 2008 Continuing Resolution.
GAO's report did not address the central question of the
demonstration project: Are Federal sector USERRA claimants
better served when they can make complaints directly to OSC for
both investigation and litigation? We believe the answer is,
``clearly yes.''
Our specialized USERRA Unit is second to none and is
uniquely suited to assist servicemembers with USERRA claims
against Federal employers. OSC protects the Federal Merit
System. Thus, our USERRA Unit attorneys and investigators are
experts in Federal personnel law. They have years of experience
investigating, analyzing, and resolving allegations of
violations of Federal employment rights. Recently, Sam Wright,
Reserve Retired Navy Captain, a nationally known USERRA expert,
joined our office. He helped draft USERRA and has written and
spoken extensively about the law.
We are proud of our achievements. Since Scott Bloch became
Special Counsel, we filed the first prosecutions by OSC in the
law's history, obtaining corrective action in cases that had
been delayed for years. Cases that before took several years
with no positive conclusion now routinely take OSC under a year
to investigate and resolve favorably.
Giving OSC exclusive jurisdiction over USERRA Federal
sector claims would be doubly positive. DOL-VETS could focus on
providing their best service to non-Federal USERRA claimants
and Federal servicemembers would benefit from OSC's specialized
experience.
More than 92,000 members of the National Guard and Reserve
are currently mobilized. When they start demobilizing at a
faster rate, will we see a spike in the number of USERRA
claims? It is vital that government be fully ready to provide
prompt and effective action on these claims.
We believe there is adequate information today to support a
decision by Congress to assign OSC the task of investigating
and enforcing USERRA claims by Federal employees. OSC is ready.
I look forward to your questions.
[The prepared statement of Mr. Byrne follows:]
Prepared Statement of James Byrne, Deputy Special Counsel,
U.S. Office of Special Counsel
Chairman Akaka, Ranking Member Burr, and Members of the Committee,
good morning. Thank you for the opportunity to testify today on
important matters of concern to our servicemembers, their families, and
ultimately our national security.
My name is Jim Byrne and I am Deputy Special Counsel of the U.S.
Office of Special Counsel (OSC). I am joined today by Patrick Boulay,
Chief of the Office of Special Counsel unit that investigates and
prosecutes violations of the Uniformed Services Employment and
Reemployment Rights Act.
Thirteen years ago this month, Congress enacted and President
Clinton signed into law the Uniformed Services Employment and
Reemployment Rights Act of 1994, or USERRA, a rewrite of the Veterans'
Reemployment Rights (VRR) law of 1940. The VRR law served our Nation
reasonably well for more than half a century, but over the years
numerous piecemeal amendments and sometimes conflicting judicial
constructions had made the law somewhat confusing and cumbersome. There
were also some loopholes in the VRR law's enforcement mechanism,
especially as it applied to the Federal Government as a civilian
employer.
USERRA strengthened the enforcement mechanism for Federal employees
by giving the Merit Systems Protection Board (MSPB) explicit
jurisdiction to adjudicate allegations of USERRA violations by Federal
executive agencies as employers. USERRA also provided, for the first
time, for persons asserting reemployment rights against Federal
agencies to have the assistance of OSC and the Department of Labor's
Veterans' Employment and Training Service (DOL-VETS).
Under section 4322 of USERRA, a person claiming a violation by any
employer (Federal, state, local, or private sector) is permitted to
make a written complaint to DOL-VETS, and that agency is required to
investigate and to attempt to resolve the matter. If the DOL-VETS
efforts do not result in resolution of the complaint, and the employer
is a private employer or a state or political subdivision of a state,
the matter may be referred to the Attorney General. If the employer is
a Federal executive agency, it may be referred to OSC.
The passage of USERRA expanded OSC's role as protector of the
Federal merit system and Federal workplace rights. However, it
established a two-step process in which the DOL-VETS would receive all
Federal and non-Federal sector USERRA claims, to investigate and
attempt to resolve with employers. If DOL-VETS is unable to resolve a
claim against a Federal employer, it is then referred to OSC at the
servicemembers' request, as DOL-VETS has no prosecutorial authority.
When OSC is satisfied that the claimant is entitled to relief, we
may exercise our prosecutorial authority to represent the claimant
before the Merit Systems Protection Board (MSPB) and the U.S. Court of
Appeals for the Federal Circuit, if necessary. In addition to obtaining
corrective action for the claimant, in our role as protector of the
merit system, OSC seeks ``systemic'' corrective action to prevent
future violations by an agency. For example, we would assist an agency
to modify its leave policy so it does not violate USERRA, or provide
USERRA training to agency managers and H.R. specialists.
Three years ago, with enactment of the Veterans Benefits
Improvement Act of 2004, a USERRA demonstration project was established
as Congress sought to determine if OSC could provide better service to
Federal employees filing USERRA claims. This gave OSC an opportunity to
apply our extensive experience investigating and prosecuting Federal
personnel laws to USERRA. It also eliminated (for some claims) the
cumbersome, time-consuming ``bifurcated'' process whereby Federal
USERRA claims often bounce around different Federal agencies before
being resolved.
Under the demonstration project, OSC has exclusive investigative
jurisdiction over certain Federal-sector USERRA cases. While civilian
employees of the Federal Government represent about 10 percent of the
National Guard and Reserve, they file a disproportionately greater
percentage of claims under USERRA. Considering that the law specifies
that the Federal Government is supposed to be a ``model'' employer,
this is a disturbing trend.\1\
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\1\ 38 U.S.C. 4301(b)
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Under this demonstration project, OSC investigates over half of the
Federal employee cases (those cases in which the claimant has an odd
Social Security Number plus the cases in which the claimant's USERRA
claim is related to a Prohibited Personnel Practice claim that is
otherwise under OSC's cognizance). The results speak for themselves:
OSC has obtained corrective action for servicemembers in more than one
in four USERRA claims filed with us. This is very high when you
consider that the rate of positive findings and corrective action for
governmental investigative agencies is usually well under 10 percent.
Our centralized and straight-line process has ensured that the USERRA
claims we receive are resolved efficiently, thoroughly, and, most
important, correctly under the law.
Servicemembers returning from Iraq or from other active duty
service have benefited from numerous corrective actions we have
obtained for them, including back pay, promotions, restored benefits
and seniority, time off and case settlements that result in systemic
change to make sure future violations of USERRA do not occur where they
work.
Congress directed the Comptroller General to evaluate the
demonstration project and to provide a report to Congress not later
than April 1, 2007. OSC participated in the evaluations conducted by
the Government Accountability Office, but we were disappointed that
their draft report was not available for review until mid-June, and the
final report was published only a week before the congressional August
recess. This left Congress with almost no opportunity to act on USERRA
before the demonstration projected concluded on September 30th. We
appreciate that Congress enacted an extension of the USERRA
demonstration project in the FY2008 Continuing Resolution.
Moreover, the GAO report did not address the central question that
the demonstration project was intended to answer: are Federal sector
USERRA claimants better served when they are permitted to make their
complaints directly to OSC, for both investigation and litigation? We
respectfully submit that the answer to that question is ``clearly
yes.''
We of the U.S. Office of Special Counsel are privileged to be
engaged in the enforcement of USERRA. Both as Deputy Special Counsel,
and as a member of the U.S. Marine Corps Reserve, I am proud of the
work we are doing to protect the employment rights of those who give of
themselves for our national security. Our specialized USERRA unit is
second to none. We employ members of the National Guard and reserve at
OSC; four of our last six hires served in the military and are still in
the reserve. We also just recruited a nationally known USERRA expert,
Sam Wright, a captain in the Navy Reserve, who helped draft the law and
has written and spoken extensively about USERRA throughout his career.
He can assist us not only in the prosecution of complex cases but also
in outreach and public affairs aspects of our work for veterans and
active members of the National Guard and Reserve.
OSC is uniquely suited to assist members of the National Guard and
Reserve who, upon their return from active duty, even from combat and
with combat-related injuries, are turned away by their Federal
employers, or not afforded the full protections or benefits to which
they are entitled. Because the mission of OSC is to protect the Federal
merit system, our USERRA unit is staffed with attorneys and
investigators who are experts in Federal personnel law and have years
of experience investigating, analyzing, and resolving allegations of
violations of Federal employment rights.\2\ For this reason, Federal
sector USERRA investigation and enforcement is a natural ``fit'' for
OSC.
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\2\ It should be noted that 5 U.S.C. 2302(b)(11) makes it a
prohibited personnel practice for any Federal supervisor or manager to
take a personnel action forbidden by a veterans' preference statute or
to refuse to take an action required by a veterans' preference statute.
We believe that this includes USERRA.
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We are proud of the achievements of the office. Since the advent of
Scott Bloch's administration of OSC, we have filed the first ever
prosecutions by OSC in the law's history, obtaining corrective action
in many cases that had been delayed for years and had been essentially
given up for lost. Take the case of an Army Corps of Engineers employee
who was not reemployed after his active duty with the Air Force. After
his case went unresolved elsewhere, OSC prosecuted the case before the
MSPB and obtained full corrective action, including $85,000 in back
pay, reemployment in his former position, and full restoration of
benefits. Or, the case of the injured Iraq war veteran who returned
from duty only to be sent home by his Federal employer because he could
no long perform his former job. After OSC became involved, we convinced
the agency to find him a suitable job consistent with his physical
limitations and back pay for the time he was at home trying to figure
out where to turn.
Cases that before took several years to come to no positive
conclusion now routinely take well under a year for OSC to investigate
and resolve favorably. We are committed to getting as much relief as
the law allows for our brave servicemembers, and doing so as quickly as
possible. These patriots have given their all in the service of this
great Nation. They should never be hung out to dry by a long, drawn-
out, confusing process. OSC is passionate about obtaining relief for
all who come to us, and no less for the soldiers of our country who
also serve in the Federal civil service.
Moreover, giving OSC exclusive jurisdiction over USERRA Federal
sector claims would remove the burden from the Department of Labor
Veterans Employment and Training Service to navigate Federal personnel
law, freeing them to focus on providing their best service to USERRA
claimants from the private sector and those in state and local
governments. Thus, the benefit to servicemembers would be doubly
positive--for Federal servicemembers who would benefit from OSC's
specialized experience, and for those private sector servicemembers who
would benefit from greater attention to their claims at DOL-VETS.
Today, America is in the middle of the largest sustained military
deployment in thirty years. That deployment but is not limited to the
approximately 200,000 servicemembers in Iraq and Afghanistan at this
moment. In recent years, the number of members of the National Guard
and Reserve mobilized at one time peaked at more than 212,000. Last
week, the Department of Defense reported that 92,971 members of the
National Guard and Reserve had been mobilized and were on active duty.
It is when these servicemembers end their active duty that they may
find they are no longer welcome to return to their civilian jobs and
are eligible to file a claim under USERRA.
Right now, with returning war vets a comparative trickle, USERRA
claims are in the hundreds. What will happen if and when that trickle
turns into a flood? Will we see a ``spike'' in the number of claims
filed by returning servicemembers who have been turned away from their
employers? Will the government demonstrate its support for our troops
by being fully ready to provide prompt and effective action on these
claims?
We don't know when they will start returning home in greater
numbers, boosting demand for USERRA enforcement. We believe that
adequate information has been developed to support a decision by
Congress to assign the task of investigating and enforcing USERRA
claims by Federal employees to OSC. We are poised to assume this
responsibility and to do our part in making their transition back to
civilian life as smooth as possible.
Thank you for your attention and I look forward to your questions.
______
Responses to Post-Hearing Questions Submitted by Hon. Daniel K. Akaka
to Jim Byrne, Deputy Special Counsel, U.S. Office of Special Counsel
Question 1. The GAO found that DOL's average processing time for a
Federal U-Sarah claim ranged from 53 to 86 days. OSC's processing time
WAS an average of 115 days. To what do you attribute the considerably
longer process at OSC?
Response. There are several important factors to consider when
comparing case processing times at OSC versus DOL:\1\
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\1\ As a preliminary matter, GAO found that DOL's case closure
dates were not reliable and, as a result, GAO could not accurately
determine an average case processing time, and had to estimate a range
using only a limited ``sample'' of files (in contrast to OSC, where all
files were included). Specifically, GAO found that the closure dates
entered into DOL's database did not match the dates on the closure
notification letters to claimants in over 40 percent of the cases
sampled (GAO Report 07-907, p. 4).
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(a) ``Administrative Closures:'' This refers to cases over which
OSC or DOL lacks jurisdiction, there is no bona fide USERRA allegation
(i.e., the claimant mistakenly characterizes an allegation as falling
under USERRA), there is no meaningful corrective action, the claimant
mistakenly filed a complaint form or filed it multiple times (e.g.,
with electronic filing), etc.
OSC, as a rule, does not open such cases, and instead endeavors to
provide information to the claimant regarding other possible options
for redress. OSC generally only opens cases for which it will conduct a
thorough investigation and legal analysis, including collecting and
reviewing documents, interviewing witnesses, etc.
By contrast, DOL opens such cases, and then quickly, sometimes
within minutes, hours, or days, ``administratively'' closed them. OSC
received from DOL information indicating that, during roughly the same
time period covered by the GAO report, DOL closed 13 percent of its
Federal USERRA cases within 1 day, 22 percent in one-to-two days, and
34 percent within one week. This practice artificially, and
significantly, lowers DOL's case processing times.
In a letter to GAO in December 2006, OSC outlined three examples of
cases that appear to have been opened by servicemembers only to be
closed administratively by VETS. This information was discovered by OSC
on the USERRA Information Management System (UIMS) managed by VETS:
Example #1: Carlos XXXX opened USERRA claim #AL-2007-00009-30-V on
November 14, 2006, at 2:52 p.m. and USERRA claim #AL-2007-00010-30-
V on November 30, 2006, at 3 p.m. According to UIMS, however, on
November 30, 2006, at 3:12 p.m., VETS ``resolved'' and closed
USERRA claim #AL-2007-00010-30-V.
Example #2: Charles XXXX opened USERRA claim #VA-2007-00009-30-V on
November 14, 2006, at 2:30 p.m. Charles XXXX then opened USERRA
Claim #VA-2007-00010-30-V on UIMS on November 14, 2006, at 2:34
p.m. According to UIMS, these claims were ``resolved'' and closed
by VETS on November 14, 2006, at 2:46 p.m. and 2:47 p.m.,
respectively. Notwithstanding VETS closing of cases on UIMS, OSC
received Charles XXXX's USERRA claim from VETS on November 14,
2006, and opened OSC file Number DP-07-0370.
Example #3: Else XXXX opened USERRA claim #NC-2007-00001-30-G on
October 31, 2006, at 1:55 p.m. According to UIMS, VETS resolved and
closed the case on November 2, 2006 at 1:51 p.m.\2\
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\2\ U.S. Special Counsel letter to GAO (George Stalcup) of December
19, 2006; Re: USERRA Demonstration Project (GAO Engagement Number
450458).
DOL continues to ``administratively'' close cases. In one recent
example, DOL opened a case, discovered that OSC had jurisdiction over
it, and ``administratively'' closed the case 3 days later and referred
it to OSC. The GAO report briefly discussed related discrepancies
between claims shown in the UIMS database, compared to the number
processed, which included closed claims reopened as separate matters,
duplicate filings and claims transferred to OSC after being opened in
UIMS.\3\
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\3\ GAO Report 07-907 (pages 17 & 35).
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(b) ``Mixed'' Claims: Under the Demonstration Project (DP), OSC
receives all Federal USERRA claims where a Prohibited Personnel
Practice (PPP) is also alleged (regardless of claimant's Social
Security Number). Approximately 20-25 percent of claims OSC received
under the DP are these ``mixed'' claims. Because such claims involve
more allegations and are generally more complex than USERRA-only
claims, and because of the statutory requirement for PPP claims that
OSC notify the claimant of its preliminary determination and provide an
opportunity to respond, ``mixed'' claims take longer to investigate and
resolve than USERRA-only claims. As a result, OSC's average case
processing time is adversely affected when compared to DOL's.
(c) Time Counted Toward Case Closure: OSC's understanding is that
DOL counts only the days a case remains at VETS, not DOL as a whole, in
determining the number of days it took to close a USERRA case. This
practice ignores the significant amount of time a case might spend in
DOL's Regional Solicitor offices for legal review, which often can be
several months.\4\ From the claimant's perspective, the total amount of
time it takes to resolve or refer his or her case, regardless of which
DOL office has it, is the important factor. By contrast, OSC's
processing time is measured from the date OSC received the case until
the date OSC notified the claimant in writing of the outcome.
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\4\ GAO found that it took an average of 247 days, or over 8
months, for DOL to process such cases from beginning to end (GAO Report
07-907, p. 23). Only one such case was included in the 54 cases that
GAO sampled to estimate a processing time ``range'' for DOL (GAO Report
07-907, p. 37).
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(d) Differing Responsibilities: If DOL-VETS cannot resolve a
Federal sector USERRA claim, it may simply close the claim and ask the
claimant whether he or she wants it referred to OSC for possible
prosecution before the MSPB. OSC, however, must also decide whether to
file such litigation before the MSPB, an additional responsibility that
increases its overall case processing times.
For these reasons, the case processing times reported by GAO are not an
accurate, or reliable, basis on which to compare how quickly OSC and
DOL process Federal sector USERRA cases. Accordingly, OSC respectfully
disagrees that its process is ``considerably longer'' than DOL's.
Moreover, OSC believes that its investigations are more thorough, its
conclusions more legally sound, and the outcomes that it achieves more
favorable for servicemembers, all important factors that GAO did not
address in its report, which did not assess the quality of claims
investigations. As was emphasized to GAO in our response to the report,
over one-in-four claims investigated and closed by OSC have resulted in
full corrective action for the servicemember.
Question 2. During the demonstration project, OSC received six
claims from DOL from claimants who requested referral of their claims.
It is my understanding that in five of these cases OSC declined to
represent the claimant. Of the claims that OSC processed during the
demonstration project, how many claims did you agree to represent the
claimant?
Response. This presumably refers to the non-Demonstration Project
cases discussed on page 23 of the GAO report (i.e., cases investigated,
but not resolved, by DOL and referred to OSC, at the claimant's
request, for possible prosecution before the MSPB). It is important to
note that such cases are referred by DOL to OSC at the claimant's
request, regardless of merit. Thus, many such cases are referred with a
recommendation by DOL that OSC not represent the claimant before the
MSPB. Nevertheless, of the four cases filed by OSC at the MSPB since
2004 in which OSC obtained full relief for the claimant, DOL
recommended that OSC not represent the claimant in two of those cases.
If OSC determines that a USERRA case is meritorious (i.e., there is
sufficient evidence of a violation and the claimant is entitled to
relief), OSC first requests that the Federal agency voluntarily take
appropriate corrective action. OSC has had tremendous success in
convincing agencies to do so, as evidenced by OSC's greater than 25
percent corrective action rate during the Demonstration Project (i.e.,
OSC obtaining corrective action for claimants in more than one-in-four
of the USERRA cases it has received under the DP). OSC attributes this
success to its thorough investigations and legal analysis, ability to
educate Federal agencies about their obligations under USERRA, and the
credible threat of litigation illustrated by the four MSPB cases cited
above.
If an agency does not agree to OSC's request in a timely manner,
OSC will file litigation with the MSPB, not simply close the case and
take no further action. Remarkably, OSC has yet to have to do so with
any Demonstration Project cases, although there are several pending
matters that OSC may file if agencies do not take the requested action.
Thus, OSC has not formally represented any claimants before the MSPB in
DP cases, but has represented claimants' interests to Federal agencies
in the approximately 25 percent of meritorious cases it has received
under the DP. In this sense, OSC has ``agreed to represent'' the
claimant in roughly one-in-four DP cases (i.e., where OSC would have
represented the claimant before the MSPB, but did not have to do so
because the agency voluntarily agreed to OSC's request for corrective
action).
Question 3. If the Congress were to give jurisdiction of Federal U-
Sarah claims to OSC, what funding and staffing issues would you need to
address and what would be an optimum time line needed for a smooth
transition?
Response. While OSC would need additional staff and resources over
the long term to handle roughly double its current USERRA caseload, we
have sufficient staffing flexibility and expertise in the short term to
handle these cases immediately. In addition to the full-time USERRA
Unit, which currently has nine attorneys and investigators, each of
OSC's four field offices has received USERRA training and is currently
handling a limited number of cases. In the short term, these field
offices could handle additional USERRA cases while additional staff
members were recruited for the USERRA Unit. An estimate of specific
budgetary needs for OSC to exercise jurisdiction over Federal USERRA
claims in FY2008 is at Appendix A.
Question 4. This question is for both DOL and OSC: I am deeply
concerned that individuals who are being sent to battle by the Federal
Government are put in the position of having to do battle with that
same government in order to regain their jobs when they return home. In
your experience, can you think of any reason that the Federal
Government (as an employer) would have any problems with complying with
the law in this regard? Is it a matter of complexity, a matter of
budget, or something else?
Response. In OSC's experience, while Federal agency managers and
Human Resource (HR) specialist often have a general awareness of
USERRA, they often do not understand the full extent of their
responsibilities to Federal employees who serve in the military. For
example, while it seems rare for a Federal agency to flatly refuse to
reemploy a returning servicemember, it may not do so properly (e.g., by
failing to place the person in the ``escalator'' position). Or, the
agency may not fully carry out its obligations to injured
servicemembers (e.g., by failing to seek placement assistance from
OPM). OSC is striving to correct these deficiencies by providing USERRA
training, written guidance to agencies on common issues (e.g., advance
notice requirements, reemploying injured servicemembers), and speaking
at national conferences and events attended by agency managers,
attorneys, and HR specialists. Moreover, OSC provides live technical
assistance to agencies through its telephonic and e-mail USERRA
Hotlines, staffed by its team of USERRA experts. OSC also intends to
extend its highly successful 5 U.S.C. Sec. 2302(c) certification
program to include USERRA. Through these efforts, OSC is helping to
educate Federal agencies about USERRA and prevent future violations.
Other factors that possibly contribute to USERRA violations by
Federal agencies:
<bullet> The large proportion of Federal civilian employees who
also serve in the military--according to DoD, about 25 percent of
National Guard and Reserve members are civilian employees of the
Federal Government. Federal employees generally have greater employment
rights than private employees, and are possibly more aware of their
rights.
<bullet> The decentralized nature of large agencies accounting for
a higher proportion of USERRA violations (e.g., U.S. Postal Service,
Veterans Affairs).
<bullet> USERRA can be demanding, as it should be, and is sometimes
counter-intuitive or inconvenient for employers; thus, agencies may
sometimes mistakenly believe their actions are not violating USERRA
(e.g., refusing to hire a servicemember because he or she is about to
be called up for military duty and cannot start work when the agency
needs them).
<bullet> There is a tendency in some members of management to
disparage those who serve because it makes their jobs more difficult,
they are possibly perceived as ``getting special treatment'' and not
having to work some shifts when they are on military training duty when
others have to work those weekend shifts, for example. This is
anecdotal, but it appears to be the case in some situations OSC has
encountered.
Question 5. In their testimony, GAO stated that, if OSC were given
the authority to receive and investigate all Federal claims, a
significant increase in the number of claims might necessitate a change
to the oversight structure that you used during the demonstration
project which relied heavily on the actions of one individual. Could
you please comment on that concern?
Response. OSC has superior persons with expertise and experience
that will make such a restructuring unnecessary. The acting chief of
the unit is highly experienced in OSC litigation and in USERRA and
trained for a period of 2 years under the former chief. OSC hired a
nationally known expert, Sam Wright, one of the ``fathers of USERRA,''
to work cases, perform outreach and serve as an adviser to the unit on
complex matters. Few can claim to have his credibility on and knowledge
of USERRA. OSC believes that its centralized approach has ensured
timely, consistent, and most important, correct results in USERRA
cases. If OSC were to receive all Federal USERRA claims, we would
increase the number of investigators, attorneys and administrative
support. Modifications to our organizational structure, adding deputy
and team leader positions, would maintain centralization without
dependency on the USERRA Unit Chief position.
Appendix A
U.S. Office of Special Counsel.--Funding needed for OSC to handle all
Federal USERRA cases
------------------------------------------------------------------------
Percent of
Object Class Amount Supplementary
Request
------------------------------------------------------------------------
Salaries. The amount necessary to $1,602,000 62%
provide funding for approximately 16
FTE in fiscal year 2008................
Benefits. The benefits required for the 417,000 16.1%
approximately 16 FTE...................
Travel. This includes approximately 84,000 3.2%
$60,000 in travel for investigations
and approximately $24,000 in travel
related to litigation..................
Transportation. Courier services, 3,000 0.1%
contract mail service, and freight,
required for general expenses and also
for delivery between headquarters and
field offices..........................
GSA Rent. Since OSC's current space is 285,000 11.0%
fully occupied by its headquarters and
Washington DC field office, a small but
secure additional suite of offices
should be used to house the unit.......
Utilities and Communications. 27,000 1.0%
Communication costs related to local
and long distance telephone services
and Internet access make up the largest
portion of this category...............
Printing. Printing for USERRA related 2,000 0.0%
publications...........................
Other Services. Includes $21,000 in 101,000 3.9%
annual litigation related non-travel
expenses. Also includes $20,000 in
training. Also includes WestLaw, travel
services, and miscellaneous services.
Accounting and payroll services would
be handled through OSC existing systems
and incur no additional cost. Also
included here are $30,000 in
miscellaneous non-recurring expenses
connected to starting the full USERRA
office in its first year...............
Supplies and Materials. General supplies 10,000 0.4%
can include copier toner, printer
toner, copy paper, bond paper, folders,
files, binders, zip drives,
whiteboards, business cards,
subscriptions related to legal
research, reference books, training
materials, electronic subscriptions for
access to data, water coolers, digital
recorders, batteries, cassettes, disks,
investigative supplies, and other
supplies of all types..................
Equipment. Laptops and printers, telecom 52,000 2.0%
equipment, and network equipment.
Includes cost of updating hardware and
software by replacing a portion of
obsolete equipment annually. Annual
equipment replacement cost would be
around $20,000. But in the first year
of setting up a full USERRA office,
there will be additional non-recurring
equipment expenditures of $32,000......
-------------------------------
TOTAL................................... $2,583,000 100.00%
------------------------------------------------------------------------
Chairman Akaka. Thank you very much, Mr. Byrne.
I have a question for both Mr. Ciccolella and Mr. Byrne,
and it is for DOL and OSC. I am deeply concerned that
individuals who are being sent to battle by the Federal
Government are put in the position of having to do battle with
the same government in order to regain their jobs when they
return home. In your experience, can you think of any reason
that the Federal Government as an employer would have any
problems with complying with the law in this regard? Is it a
matter of complexity, a matter of budget, a matter of
personnel, or is there another reason? Mr. Ciccolella?
Mr. Ciccolella. Senator, there should be no reason ever
where a servicemember goes off to duty and comes back to their
Federal agency and doesn't get their job back. That is not what
usually happens.
The cases today, USERRA cases, are very complex. It is not
like there may be one issue in a USERRA case. In many
situations, there are multiple issues. A lot of times, what you
find with the Federal manager is that they don't understand all
the things that properly restore an individual to his or her
duty position. They don't understand the escalator principle,
that when you leave, you are on an escalator, and if you are on
Step 5 at the escalator when you leave and you would have been
at Step 7, then when you come back, you have to be put into
Step 7. If that requires training or anything else, the Federal
manager, they have got to figure that out, how to do it.
The cases are very complex. About half the cases that we do
in the Federal Government are where the Federal hiring manager
just doesn't understand the law or the OPM regulations that
spell out how to implement the law. So that is really what we
are seeing more often than a servicemember who is just
terminated, because that really doesn't happen very often and
there is a safety catch in this, and that is if that Federal
agency is unable to place that individual back in his or her
job, then it becomes the responsibility of the Office of
Personnel Management to place that individual.
So the Federal Government has been pretty good as a model
employer. They do a lot of things for our servicemembers that
the private sector doesn't do. For example, when a
servicemember leaves on active duty, goes on active duty, most
Federal agencies continue that Federal health benefit. That is
pretty expensive. Private employers don't do that. And they not
only pay the employer's share of the health benefit, they pay
the employee's share. So servicemembers in most cases that get
the TRICARE military benefit also get the health care that they
had so there is no loss of coverage. Also, you can serve your
probation period on active duty. That never happens in the
private sector.
So the Federal Government has done a reasonably decent job
of being a model employer, but as I said, there are issues,
there are problems. I believe a lot of the problems are because
of the complexity of the issues and the multiple issues.
And here is the other thing. It is not like these
servicemembers are going to active duty for a year once. In
many cases, these are multiple deployments and the frequency of
those deployments, maybe in a 5-year period, some of our
Federal employees have been gone for 2\1/2\ or 3 years on
active duty and that is hard. That is hard for Federal managers
to manage. But that is also the law and that is why you have us
and that is why you have Special Counsel, to make sure that
they obey the law.
I think I had better stop there. I could go on for a long
time, but I think I had better just stop there.
Chairman Akaka. Mr. Byrne?
Mr. Byrne. Thank you, Senator, for that question. I agree
with most everything that Mr. Ciccolella said. I would like to
emphasize the whole awareness piece, which I think was sort of
the core of your question, is that most of the cases that have
come forward to us are a lack of awareness on the managers and
sort of the H.R. departments within Federal agencies. And so I
can speak on behalf of OSC that even during the demonstration
project--and I am sure DOL has an outreach program, too, I am
just not versed on it--but even though it has just been a
demonstration project for us, we have gone out and done
extensive outreach, presentations to various agencies, the FDR
Conference on Federal Employment Law just a couple months ago
out in San Francisco where we put on a presentation to hundreds
and hundreds of Federal managers and H.R. personnel.
And what we plan on doing if we receive full jurisdiction
of USERRA is to incorporate a certification process, which we
do with other aspects of our office, the Hatch Act and the
prohibited personnel practices, where we train up an agency to
a certain level and they become certified, which is a
requirement that they should do. And I submit probably Labor
has something very similar. But we have postured to do all
that, and I think awareness is key.
I think this would be a good time to maybe put in the fact
that hasn't been brought out is that the awareness is the
appearance that employers in the government have been innocent,
just not being aware. I don't believe that we have run into any
cases yet where an employer has willfully discriminated against
a veteran and fired them, or intentionally said, ``I am tired
of them being deployed. I am going to hold them back in the
promotion cycle.'' But, I pass on to this Committee that we
don't have any disciplinary action that we can take against an
employer at this time and I would ask the Committee to consider
that as they look at this legislation.
Chairman Akaka. Thank you. We will have a second round. May
I call now on our Ranking Member for his questions.
Senator Burr. Thank you, Mr. Chairman. I want to ask
unanimous consent for additional questions to be in writing to
the witnesses because I can assure you I am not going to have
ample time with one or two rounds, I think, to sort this out in
my own mind. I actually spent several hours going through the
testimony and my thoughts last night and thought I understood
this. I have learned in a short period this morning that I am
more confused than I ever dreamed that I would be, and I am
going to warn you, Chick, that I am going to come back to you
because you said it is more difficult to do these
investigations and I am going to ask you to walk me through a
typical one.
This demonstration project is focused on Federal agencies,
and I sit here almost amazed that we have got these Federal
guidelines and Federal agencies--I think one of you used
``unaware,'' that an H.R. person doesn't fully understand
exactly what the law says as it relates to this population of
people. One, it makes me wonder who in the hell hired them.
What qualifications did they have to serve in the capacity that
they are in? If anybody ought to get this right, it ought to be
the Federal Government, and if I were a private sector employer
today and looked at the results within the Federal Government,
I would say, why the hell are you coming after me? Why don't
you clean up your own house first?
Now, we have gone through a Government Accountability
Office study where, for the first time, and I am perplexed at
it to some degree, that the Government Accountability Office
couldn't come in and distinguish black and white. There was a
report that had a tremendous amount of gray and the reason was
the inability to sort data or the inability to find the data
that is needed to make the determination.
I would love for both of you to share candidly with the
Members of this Committee, how can Federal agencies butcher
this so bad and force you to go through a lengthy process, and
Chick specifically I will throw the first question to you.
After a claimant requests referral to Office of Special
Counsel, there are two additional layers of process that the
Department of Labor goes through before the referral is made.
Why and what purpose do those two layers serve?
Mr. Ciccolella. I understand, Senator. It is a good
question because the issue is why we go through that
bureaucracy.
First, I would just like to say I probably shouldn't
comment on who we hire in the Federal Government and what the
qualifications are for those people in the Federal Government.
I know there is some disappointment in the way some people
behave in the Federal Government. I won't comment, sir, on
that.
Senator Burr. We have that problem, too.
Mr. Ciccolella. Yes. Well, everybody does, I guess.
Can I just say, this is not--I understand where you are
coming from, Senator. I really do. USERRA is a tough law. We
enforce about 189 laws in the Department of Labor. This is the
most employee-friendly law there is on the books. It leans
toward the veteran, as well it should, because servicemembers
should never be penalized for their military service. And that
is why, since the 1940's, there has always been a law in place
to make sure that servicemembers do get back their jobs.
I agree with you. Investigations take long enough, because
you have got to gather the evidence and you have got to
confront the Federal hiring manager. But then if we find that
the case has merit and we decide we are going to buck it over
to the Counsel's Office so that they can also investigate.
Well, it has to go through a Regional Administrator. He looks
at it from the point of view, ``is it correct,'' and that is a
pretty good check. It only takes a couple of days, maybe, at
most.
But then it goes through our Solicitor. Labor has a lot of
people up there in the Solicitor's Office. Is that important?
It is important. It is important to the Counsel's Office and it
is important to us because we want to make sure that the law
has been properly interpreted. And so when we send a case over
to the Special Counsel's Office, that process takes place.
I am not an attorney, so I don't know all the things about
what they look at, but I know the law pretty well. When we do
send it over to Special Counsel, they are going to take a look
at it. They do a very good job of reviewing it and they will
also do an investigation.
Now, there is a down side to that and I couldn't agree
more, because that is bureaucracy at work, and it takes a
little bit of time. But there is sometimes an unintended
advantage when that process takes place, because once it goes
to a lawyer in our office, or if it goes over to Special
Counsel, I can guarantee you that there is more attention paid
to that complaint by the Federal hiring manager. So a lot of
times, just having it up at our Solicitor's Office or having it
over with Jim's folks over there at OSC, that case may be
resolved en route to referral.
So that is a long-winded answer, but----
Senator Burr. Well, let me----
Mr. Ciccolella [continuing]. It is sort of bureaucratic.
But, if this doesn't happen, you know, ``wham, bam.'' There is
a process. I hate to say it, but you know, it has to work that
way.
Senator Burr. I want to commend you because I think you are
trying extremely hard to sort this out, and I agree with you,
it is extremely difficult. As is evidenced, it is becoming more
difficult by the minute for me.
Mr. Ciccolella. Yes, sir.
Senator Burr. I want to give Jim an opportunity to respond
to my point, but I also want to ask you, if the Federal hiring
managers understood this, how much of what you are doing would
go away?
Mr. Ciccolella. Probably a lot more of it. I think you are
always going to have some situations. Let us face it, if an
individual is gone 3 years out of 5 years in a Federal agency,
it is tough. I mean, my Chief of Staff went over to Iraq for a
year. That is tough. You just gut it out. You put somebody else
in the job temporarily.
The outreach and education that Jim talked about is
extremely important. One of the things we did 2 years ago is we
have this Veterans Hiring Initiative which focuses on trying to
hire disabled veterans, and there are streamlined authorities
for doing that, direct appointments. Most of the Federal
agencies don't use them. So we talked to about 40 Federal
agencies in person and then we talked to a bunch of others
through various messaging. Now we are doing that in the Federal
regions. And in those Veteran Hiring Initiatives Briefings,
what we do is we make sure that we talk about USERRA.
The other thing that is really good today is that we brief,
or the Defense Department and the Staff Judge Advocates in the
military brief, every servicemember when they are mobilized and
when they are demobilized, which is more important, they are
briefed on USERRA. So most servicemembers know how to make a
complaint.
Thanks to the good work that the Labor Department has done
in the private sector and in the Federal Government, thanks to
what OSC has done under Scott Bloch, because they have got a
real interest in enforcing USERRA, and that is something to be
absolutely admired and respected, they do a very good job, the
employers do understand the law a lot better. But as I said,
some of these cases are complex and it may not be just about
the reinstatement. It may be how do we restore that
servicemember's pension benefits, or how do we restore the
health care coverage? You know, there are gaps in restoring
health care coverage after a servicemember comes back. We are
trying to fix that now with a legislative fix, because they can
continue their TRICARE when they come back and they may not
reinstate their health care coverage right away. There is a
hole there.
So, you know, these are kind of complex situations and I do
agree with you. I wish we could do it faster, and we should do
it faster. We should eliminate as much bureaucracy if we can,
and I believe in that. I believe in busting bureaucracy that
doesn't work really well. But there is a process and I think
for legal purposes, especially if we have to send a case over
to the Counsel, we have got to follow those procedures, sir.
Senator Burr. Jim?
Mr. Byrne. Thank you, Senator. I think Labor would agree
with us that we would all like to outreach or educate ourselves
out of a job where we don't have to face these. I think back to
our outreach programs that we have with the Hatch Act,
extensive programs, prohibited personnel practices, extensive
outreach programs. But we are still in business. There are
still plenty of violations and allegations that come forward.
But I think we can all do a better job in educating the
managers in HR, because I am frustrated that they don't
understand this basic principle, not only not understanding the
law, but looking at it from just doing the right thing, which I
think should be part of a test in an H.R. department or an
executive or a manager. So I guess that is a little bit of my
opinion on the side, not related to the law.
But you had talked about some of the processings of the
cases as they come in. If you are interested in some details,
Mr. Boulay does this for a living day in and day out. He has
his hands on every single case that comes into OSC. I guess
that sort of leads into the fact that we are a small agency,
110 personnel, four field offices around the country. USERRA
has nine personnel, seven attorneys, two investigators, and so
we are lean, very lean and very efficient at what we do. And so
we have that luxury of not having a big bureaucracy and so I
think that really plays to our advantage in that regard.
Mr. Ciccolella also talked about the complexity of some of
the cases, and I think Mr. Boulay might be able to speak to
that, also. A lot of times, the cases have prohibited personnel
practices incorporated into them. So from our perspective at
OSC, when a case comes in, it is not necessarily just a USERRA
case. There could be a retaliation case mixed in or some other
type of discrimination mixed in which is more difficult to
investigate than a straightforward USERRA claim. So I want to
just throw that in there, that it is complicated. To even
confuse everybody even more, there are more matters.
We are just really fortunate in our office, and I am hoping
Mr. Boulay gets the chance to speak here, we have experts in
this area, in Federal employment law. They do this for a
living, prohibited personnel practices, Hatch Act,
whistleblower disclosures. And so for us to do USERRA claims is
a natural.
Senator Burr. If the Chairman would indulge and my
colleague, Senator Tester, could we hear from Mr. Boulay?
Chairman Akaka. [Nodding affirmatively.]
Mr. Boulay. Thank you. Just to pick up on what Mr.
Ciccolella and Mr. Byrne said, I would agree. Generally
speaking, I think what we see is that Federal agencies, Federal
managers have a general understanding of USERRA but don't know
the full extent of what is required, and that is where these
cases become more challenging and that is why a big part of our
approach is even if a case may not have merit for the
individual, that we work very hard to educate the Federal
managers and the H.R. specialists in the full extent of their
responsibilities both under the USERRA statute and under the
OPM regulations that have some additional requirements, such as
making sure there is a mechanism to consider servicemembers for
promotions while they are absent due to military service.
Because our approach is centralized at OSC, we have the
ability to spot where cases come in and go out through me,
through the USERRA Unit Chief, we are able to spot trends and
issues that come up. In fact, two have come up in particular,
and I think Mr. Ciccolella referenced this, in agencies'
obligations with regard to injured servicemembers, the steps
they need to take up to and including getting OPM to provide
placement assistance if they can't find a job for the
servicemember, and also advance notice requirements for
military leave. We have standard letters that we provide to
agencies and to H.R. specialists that detail these issues.
As Mr. Byrne alluded to, under the prohibited personnel
practices, there is a requirement that heads of agencies
educate their employees about civil service laws, rules, and
regulations and that they comply with that, and we have a
certification program that they can become certified that they
are complying with that provision and we would like to extend
that to USERRA if we get the work, so that we would have an
agency certify to us that they have provided training, posted
information and things of that nature for USERRA to ensure that
they comply.
Now, as far as just to make it clear, cases under the
referral process, which is nondemonstration project cases,
there is this process whereby VETS investigates and then has
several stages of review where they send it from their local
office to their regional office and then to the regional
solicitor and then finally to OSC if the claimant requests
that. Now, under the demonstration project, those steps are
eliminated because OSC gets the case from the beginning, we
investigate it, we decide whether to prosecute. We have that
authority. When we approach agencies in a meritorious case,
they know that there is a credible threat of litigation.
And as far as the need or the benefit added at VETS and
Department of Labor to do these additional reviews, that is
built into our process under the demonstration project. We have
supervisory and legal review throughout the process, from the
beginning of the end of the case. So there is no need, because
we are centralized, to transfer it between offices. So I just
want to point out that difference.
And as far as cases that do get referred, while we do
appreciate getting a summary or a memorandum of referral from
the Department of Labor, we do a de novo review. We do not rely
on those summaries to make our decision. It gives us a brief
overview of the case, gets us up to speed, but we are
evaluating the case ourselves fully, and we have had some
instances where we have had disagreements, but we think as
experts in the Federal sector that we should be making the
final decision and doing, as I said, a de novo full review of
every case.
I just hope that is helpful to your questions. Thank you.
Chairman Akaka. Thank you very much, Senator Burr.
Senator Tester?
Senator Tester. Mr. Chairman, thank you very much. I feel
the same way Senator Burr does at this point in time. I have
got so many questions, I don't know if we have time to answer
them all today, so we will start at the beginning.
The process that I heard was a claim goes to DOL, then it
goes to the Solicitor, and then it goes to OSC, is that fairly
correct?
Mr. Ciccolella. The investigative process--that would be
the chain, yes.
Senator Tester. Does it occur anytime where it goes right
straight to OSC, where the first two are eliminated? That does
occur? It just depends on what the claimant wants?
Mr. Ciccolella. Yes. Under the demonstration, half the
cases go directly, and if the case involves, or we suspect it
involves, a prohibited personnel practice, one of the 12 PPPs,
then we send it to Special Counsel immediately.
Senator Tester. So, it still goes through your office,
though?
Mr. Ciccolella. Yes, sir.
Senator Tester. So they all go through your office
initially?
Mr. Ciccolella. Some come direct to OSC through their
outreach, but most cases, I believe it is fair to say, come
through the Veterans' Employment and Training Service.
Senator Tester. That is cool. Mr. Boulay said that you, if
I heard you right, you don't use the previous reviews done by
the DOL. You use your own?
Mr. Boulay. That is in non-demonstration project cases--
cases that are referred from DOL to us--they provide a
memorandum of referral after it goes through their multi-stage
process. We do review those and use those as sort of a quick
overview of the case, but we make our own decision and do our
own review.
Senator Tester. Right. So you kind of read through them and
set them to the side and do your own thing on that? I am not
being critical. I just want to know the process.
Mr. Boulay. Yes. I mean, we do a full review of the case
and the case file, and under the demonstration project, though,
that process is not necessary because we get the cases
directly.
Senator Tester. OK. Training--Mr. Boulay, you talked a
little bit about the certification process. Does the OSC have a
training regimen that they are doing at this point in time? I
think that Mr. Byrne also talked about training, some training
stuff. Do you guys have a training regimen that you are
offering to agencies, or is it up to the agency to get a hold
of you? How is it done? Either one can answer.
Mr. Boulay. If I could just go ahead, please. We have a
formal outreach program, a training program, PowerPoint
presentation----
Senator Tester. Who initiates it?
Mr. Boulay. It is initiated by--in individual cases we
often actually request it. We offer it in most cases based on,
you know, if the agency seems to have a good handle on USERRA
and there are no violations, we would not necessarily offer it.
But even in a case where there was no individual liability, we
offer that program to agencies.
Senator Tester. So the program offering happens most
commonly when there is a problem with----
Mr. Boulay. When there is a complaint, yes.
Senator Tester. When there is a complaint. DOL, is it the
same? Do you guys have a training regimen that you offer in the
Department for Federal agencies?
Mr. Ciccolella. As I mentioned, 2 years ago we had our
Disabled Veteran Hiring Initiative to go out physically and
talk to 40 agencies. We are now in the ten Federal regions
talking to the Regional Executive Councils, so we will probably
start that again on a cycle with the Federal agencies.
Senator Tester. OK. Mr. Byrne, you talked about having nine
people dedicated to USERRA in the OSC, is that correct?
Mr. Byrne. Yes, sir, that is correct.
Senator Tester. And where is your office located?
Mr. Byrne. At 17th and M Street here in the District.
Senator Tester. So it is in D.C.?
Mr. Byrne. That is the headquarters, and we have three
field offices that we actually have trained and utilize for
some of our cases.
Senator Tester. OK.
Mr. Byrne. But they all go through centralized
headquarters.
Senator Tester. In those field offices, are there
additional personnel, or is that part of the nine?
Mr. Byrne. No, that is not part of the nine. That is
additional personnel, correct.
Senator Tester. OK. So how many total personnel do you have
in the OSC dedicated to USERRA?
Mr. Byrne. Dedicated is nine----
Senator Tester. FTE.
Mr. Byrne. FTE would be nine, but depending on the surge
and the number of cases, we push them out to the field offices
under the supervision of Mr. Boulay. And we have four field
offices with an average of about eight personnel. So that is
our set core--nine--but, we can surge way beyond that. So if
you ask for an FTE, I could guess and say we are 13 or 14.
Senator Tester. How about the DOL? How many people do you
have dedicated to USERRA? You said you had, what, a hundred
investigators, is that correct, in every State and Territory?
Mr. Ciccolella. Correct. That organization has 250
employees. About 115 are State Directors of Veterans'
Employment and Training or their assistant directors. 115 are
trained USERRA investigators located in the 52 States and
Territories.
Senator Tester. That is their job?
Mr. Ciccolella. That is part of their job. That is not the
only job they have.
Senator Tester. OK. How many claims do you receive per year
at DOL?
Mr. Ciccolella. Put it in perspective for you?
Senator Tester. Sure.
Mr. Ciccolella. Before----
Senator Tester. Let me back up my question. How many
Federal claims do you receive per year, not the private claims,
but the Federal claims?
Mr. Ciccolella. There are approximately 200, and it differs
each year, about 200 complaints with the Federal Government
each year.
Senator Tester. And that is probably going to go up, as
somebody said, with the potential for bringing the troops home.
OSC, how many do you get that are not referred through the
DOL first?
Mr. Byrne. Approximately 140 to 160, of which some of those
also have the prohibited personnel practices mixed in with
them.
Senator Tester. OK. But the initiation is USERRA claims?
Mr. Byrne. Correct.
Senator Tester. OK. Mr. Ciccolella, the previous witness
said that the main problem that the GAO had was bad data, and I
hope I don't put words in his mouth, and the bad data was a
direct response to an inadequate manual. And I said, whose
responsibility was the USERRA manual and he said the DOL. Are
you doing anything to fix that? That might be the second
question. The first question is, do you have the same opinion
as far as what makes databad? Is it the USERRA manual, and are
you doing anything to fix it?
Mr. Ciccolella. I have the same opinion that GAO does.
I thought their review was very useful.
Senator Tester. OK.
Mr. Ciccolella. The thing that has to be done is that more
attention by our investigators has to be paid to recording the
closure date of the case and making certain that the
administration and procedural aspects of the case are properly
attended to. I would just like to say for the record, that
doesn't necessarily speak to the quality of the case of those
investigations.
Senator Tester. OK. Just a couple of side comments that--I
have one more question for DOL. How many private cases, USERRA
claims, do you guys deal with a year?
Mr. Ciccolella. Sir, we are doing about 1,400 total cases a
year. Of those, last year, 12 percent were Federal cases.
Senator Tester. OK. So you are doing 1,400 a year total, 12
percent--OK. I have got you.
Mr. Ciccolella. Now, could I just clarify, sir----
Senator Tester. Yes, go ahead.
Mr. Ciccolella [continuing]. Because Jim is doing the same
thing. You know, we get many more inquiries and provide many
more assistance, technical assistance things to people, and you
have to remember also that the Department of Defense has an
agency that does informal mediation.
Senator Tester. Yes.
Mr. Ciccolella. They do a lot of claims. So there are a lot
more claims than just the 1,400.
Senator Tester. I have got you. So let us revert back a
little bit. You said you have got somewhere between 160 and 200
Federal claims, if it is 12 percent of 1,400.
Mr. Ciccolella. That would be about right.
Senator Tester. And what percentage of those do you pass on
to OSC?
Mr. Ciccolella. Well, under the demonstration, everyone
with an odd Social Security number goes to OSC, so roughly 50
percent of those. So last year, it was 96, and this year so far
it has been seven, and the total in the demonstration, I think
somebody said 269, but I think it is 289.
Senator Tester. OK. All right. Thank you very much. I
appreciate your patience with the questions. I appreciate your
testimony. Thank you.
Chairman Akaka. Thank you very much, Senator Tester.
As you know, Senator Tester has many more questions to ask.
What had intrigued me is a possible solution is the statement
that was made by Mr. Boulay, who said that there was no need to
transfer cases to another agency. It appears that there is a
process, there are investigations, there are interpretations
and decisions made and all of this takes time. And for it to go
through three agencies takes all the time. So we really need to
look at this. You have been helpful in trying to clarify this.
Instead of asking a second round of questions, I ask
Senator Tester whether he would agree that we would submit
further questions in writing to you to answer. I have many
questions to ask. Senator Tester?
Senator Tester. I would. I would just like to make a quick
comment, if I may, Mr. Chairman----
Chairman Akaka. Yes.
Senator Tester [continuing]. And that is that it appears to
me preventive medicine here would be much better than what we
are doing. We can have our own personal opinion, so I will just
tell you mine. I think the Department of Labor ought to figure
out a regimen for training the Federal agencies and make sure
those agencies know what the heck is going on. And I think that
you have the wherewithal to do that and I think you do the best
job at it, quite frankly. I think it ought to be a requirement.
Mr. Boulay talked about certifying the agencies to be able to
comply with USERRA. I think you could do that.
You know and I know it is complicated, and you guys are on
the ground dealing with it on a daily basis and I am not, but
it doesn't appear to me that it has to be this complicated. It
is pretty cut and dried as far as I am concerned. I think if
you know the rules going in, your human resource director ought
to be able to deal with it in a way that makes sense for the
agency.
I can't help to think that a lot of the problems here are
with people who, quite honestly, they would just as soon see go
out the door than move up the ladder like what is supposed to
happen in USERRA. But I think training is critically important
and we will do that.
Thank you, Mr. Chairman.
Chairman Akaka. Thank you very much, Senator Tester.
I want to thank this panel for your testimonies and your
responses, as well. I look forward to continuing to work with
you. We will send you our submitted questions for the record
and look forward to your responses.
Mr. Ciccolella. Mr. Chairman, could I say one thing before
we end here? I know you all appreciate this--that we do have
two agencies doing these investigations, so you have two
standards in place. So I want to say for the record that it is
not about turf with me. My focus is on the best service for
veterans. I think if GAO is going to do a review they look at,
hopefully, the quality of the cases, so we are better informed
in terms of making our decision. Congress and this Committee,
in particular, intended that the procedures for investigating
USERRA cases would be the same procedures that are used in
investigating veterans' preference. They said that when the
Veterans' Employment Opportunity Act was passed, and it is in
your report language.
So I would ask that as the GAO takes a look at who should
do these Federal sector USERRA cases, that whoever does them
should probably also do the veterans' preference cases. Because
then your procedures are consistent, which is what Congress
intended in their report language.
Chairman Akaka. Thank you. Mr. Byrne, do you have any
closing remarks?
Mr. Byrne. Yes, sir. I would actually agree with what he
just said.
Chairman Akaka. Mr. Boulay, do you have any closing
remarks?
Mr. Boulay. Thank you again for the opportunity. I would
just add, on veterans' preference cases, that OSC currently
enforces disciplinary action for veterans' preference
violations. So, we do have that expertise, as well, and we
would be ready, willing, and able to take that on in addition
to USERRA. Thank you.
Chairman Akaka. Thank you very much, panel two. Thank you.
Mr. Byrne. Thank you, Mr. Chairman.
Chairman Akaka. Now I would like to call forward our third
and final witness. Matt Tully comes to us from Albany, New York
on his way to his second deployment in the Middle East. He is
currently a Major in the New York National Guard. In 2005, Mr.
Tully was deployed to Iraq with the 42nd Infantry Division
based in Tikrit and at Camp Victory in Baghdad. Mr. Tully has
been awarded the Vice Chief of Staff of the Army Award for
Excellence, Iraqi Campaign Medal, Global War on Terrorism
Service Medal, Armed Forces Reserve Medal with mobilization
device, and the National Defense Service Medal. Mr. Tully has
firsthand knowledge of USERRA issues, both as a returning
veteran and also as an attorney.
Mr. Tully, I welcome you and your wife, Kelly, and your 9-
month-old son, Kevin, to this hearing. I thank you for
traveling all this way to be here today and for sharing your
story and thoughts with us this morning. I also want to thank
both you and your family for the sacrifices you are making for
our Country. I know it must be difficult for all of you at this
time. So will you begin with your testimony.
STATEMENT OF MATTHEW B. TULLY,
TULLY, RINCKEY AND ASSOCIATES, PLLC
Mr. Tully. Thank you, Mr. Chairman, and thank you, Senator,
for allowing me to be here today to discuss USERRA. I gave a
detailed written report to this Committee that outlines my
experiences as a victim of USERRA discrimination at the hands
of the Bureau of Prisons several times from 1999 to the
present. As this Committee is aware, I have received a
substantial judgment in my favor because of the discrimination
that I was subjected to.
The Office of Special Counsel had noted that they haven't
received any complaints pertaining to a willful violation of
USERRA. My case is crystal clear. My supervisors testified
under oath that they knew about USERRA and they decided to
violate it because of budgetary issues. They were concerned
that my departure was going to force the jail to require
overtime and that they didn't like that.
In addition, I represent a U.S. Postal Service employee by
the name of Richard Erickson. He is a Special Forces Sergeant
Major in the Florida National Guard. He deployed to Afghanistan
with the Florida National Guard and received a letter from the
Postal Service stating that for the efficiency of the Service,
the Postal Service was firing him from his position because the
amount of time that he had taken was in excess of 5 years.
Unfortunately for the Postal Service, there are a whole bunch
of exceptions to the 5-year rule in USERRA and call-ups to
Afghanistan and Iraq are excluded. That matter is currently in
litigation.
There are numerous other cases that I can cite you of
intentional violations by Federal employees of USERRA, and as
the statistics that were in my written report show, my law firm
handles many more USERRA violations than DOL-VETS and the
Office of Special Counsel combined. During the GAO reported
time period, we handled 1,802 complaints. The Office of Special
Counsel handled approximately 269. The Department of Labor
handled approximately 166.
What I would point out, of that 1,802, we had a 73
corrective percentage rate. So what that means is out of that
1,802, 73 percent of those veterans got what they were asking
for, versus the OSC had approximately a 25 percent rate. The
DOL report said that only 7 percent was sent to prosecution, so
it is unclear how many actually got what they were deserving.
I believe that private attorneys offer the wham-bam fix
here. I believe attorneys can turn these cases around in a
matter of weeks. My law firm, from the time that we get a
complaint from a servicemember, files court proceedings,
whether it is in State court, Federal District Court, or before
the Merit Systems Protection Board for Federal employees,
within 3 weeks, versus the other agencies, as the GAO report
talks about, just the investigative stage takes months. We
actually are in court within 3 weeks.
We take the overwhelming majority of our USERRA cases for
free because USERRA allows for attorney's fees to be awarded on
top of any damages awarded to the servicemember. So if I am
able to get Mr. Erickson his job back, he gets the back pay and
benefits he is entitled to and then attorney's fees are added
on top of that. So the servicemember is not harmed in any way,
shape, or form by having a private attorney.
As a matter of fact, the servicemember is helped when they
have severe cases, such as they are suspended, they are
demoted, they are fired, and they need immediate action and
they can't wait for a year for DOL to investigate the case,
only then to turn it over to OSC for prosecution of the case.
They will come to us, we will file the case within 3 weeks.
With the Merit Systems Protection Board, the cases are
adjudicated within 120 days. So we could get the servicemember
back into his job generally within 120 days, and that is the
big selling point for our firm. That is one of the reasons why
we have 1,802 clients during this time period and the other
agencies combined have under 400.
We have built a reputation around helping servicemembers.
We have built this reputation around not charging
servicemembers. In some cases, we do charge servicemembers who
have farflung USERRA cases that we don't think are winnable and
we tell them, go to DOL, go to OSC. If they are insistent to
keep our firm, we do charge a little bit of an up-front
retainer because we only get our attorney's fees paid by a
Federal agency if we are successful. So the overwhelming
majority of our cases, 99 percent, we don't charge our clients
a penny, and it is only that 1 percent where the case is
borderline that we ask for some type of up-front money,
goodwill money.
So I think the right answer here, Mr. Chairman, is to
change the attorney's fee provision from discretionary, which
is what it is right now, to mandatory, so that if a
servicemember proves their claims, they are guaranteed
attorney's fees on top, because the private sector can do the
job faster, better, and in a higher quality than the current
Federal agencies have done.
With that said, I believe the Office of Special Counsel
during the short time period in which they had the availability
to do USERRA cases did an outstanding job. I believe that their
addition of Sam Wright, who is known as the Godfather of
USERRA, the person that wrote USERRA, his addition to the
Office of Special Counsel really shows the Office of Special
Counsel's commitment to doing the right thing.
The Department of Labor VETS, I haven't seen any changes.
As a matter of fact, I would point out to you, Mr. Chairman,
that we have represented several DOL-VETS employees who have
alleged USERRA discrimination by DOL-VETS and those cases have
been resolved under settlement agreements with confidentiality
clauses, but the names and that type of information is
available through the Merit Systems Protection Board. But I
just find it astonishing when there were discussions here about
training requirements that there would be allegations of USERRA
violations with DOL-VETS.
That concludes my statement and I am available for any
questions that any Member on the Committee has.
[The prepared statement of Mr. Tully follows:]
Prepared Statement of Mathew B. Tully, Tully, Rinckey & Associates,
PLLC
Mr. Chairman and distinguished Members of the Committee: I am
honored to appear before you today to speak about my experiences with
the Department of Labor, the Office of Special Counsel and the United
States Department of Justice in regards to enforcing rights under the
Uniform Services Employment and Reemployment Act (USERRA). I am pleased
to be accompanied at today's hearing by my wife, Kimberly Tully, and my
9-month-old son, Kevin Tully.
To provide you with some background on me: From 1991 to 1995 I was
enrolled in the Reserve Officer Training Corp (ROTC) at Hofstra
University with my current law partner, Greg Rinckey. In May 1995, I
was commissioned as a Second Lieutenant in the United States Army and I
found myself unemployed while awaiting the Officer Basic Course. I
applied for several law enforcement positions with the Federal Bureau
of Prisons and I was hired by them on August 20, 1995. Shortly
thereafter in early October 1995, I was activated to attend military
schooling and remained on active duty until approximately April 1998.
During the entire time that I was on active duty, I was placed on
leave without pay status under USERRA by the Bureau of Prisons. Almost
immediately upon my return from active duty I was subjected to
intentional violations of USERRA by my superiors because of my military
service. The discrimination varied from receiving poor performance
evaluations during the time period that I was actually serving in the
military, a period of time that I should not have even been rated or
evaluated by the Bureau of Prisons, to being publicly ridiculed for
making the Bureau of Prisons fill my position using overtime employees.
In late 1999 and early 2000, I filed numerous complaints with the
Merit Systems Protection Board against the Bureau of Prisons alleging
violations of USERRA. I believe that it is important to point out that
I consulted with Labor Law attorneys and other members of my military
unit that also had employer issues and I was universally told not to
waste my time dealing with the Department of Labor and to exercise my
rights under USERRA and file my allegations of USERRA violations
directly with the Merit Systems Protection Board (MSPB). Very shortly
after I had filed my claims, the Bureau of Prisons conducted an
internal investigation and I assume that they found merit to my
allegations as they offered me a substantial cash settlement and paid
leave to withdraw my allegations and resign from employment with the
agency.
At that time I had just enrolled in law school and the large sum of
money that the Bureau of Prisons was offering me and the extended paid
time off was too enticing to turn down so I entered into a settlement
agreement with the agency, which contains a confidentiality clause that
prevents me from discussing in further detail the specifics of the
case.
While out on extended paid leave pursuant to the settlement
agreement, I began looking for other employment opportunities.
Unfortunately, with not many employment prospects on the horizon, I
sought a vacant position at another Bureau of Prisons institution in
August of 2000. Shortly thereafter, I was hired by Morgan Stanley to
work as a paralegal. In late 2000, I learned that the Bureau of Prisons
employees at the institution at which I applied had learned of my prior
protected USERRA activities and subsequently refused to process my
application for employment with the Bureau of Prisons.
While I did have a position with Morgan Stanley that complimented
my attending night school at Brooklyn Law School, I was deeply
disturbed that I was being subjected to further retaliation by the
Bureau of Prisons only months after they had entered into a settlement
agreement with me, which in my opinion reflected their implicit
acknowledgement of supervisory employees violating USERRA. As a result,
I filed another USERRA complaint against the Department of Justice
alleging that my application for employment was not processed in
retaliation for my prior protected USERRA activities. That case
continued for many years.
In the meantime, on September 11, 2001, my office on the 65th floor
of the World Trade Centers came under attack. After September 11th, I
served with the New York Army National Guard at Ground Zero for many
weeks. In May 2002, I graduated from law school and subsequently passed
the Bar Exam and was admitted to practice before the New York State
Courts.
In January 2003, I sold my cooperative apartment overlooking New
York Harbor in New York City and moved with my wife Kimberly to our ski
condo in upstate New York. It was at that point that I opened up a law
firm out of the back bedroom of my house. Some of my earliest clients
were colleagues from the Bureau of Prisons who asked me to represent
them in employment matters to include: allegations of EEO violations,
whistle blowing violations and disciplinary actions.
In February 2004, my current law partner and long time friend, Greg
Rinckey, returned from active duty and we entered into a law
partnership together. Throughout 2004, the number of cases that we
received from Federal employees dramatically increased to the point
where we had to hire an associate and then several more associates to
accommodate this increase in clients. In June of 2005, I received
orders to report to Iraq with the 42nd Infantry Division.
On July 30, 2007, I reported to Fort Drum, New York for deployment
training and I was subsequently deployed to Iraq and served as the
Division Chief of Operations. This deployment, as determined by the
United States Small Business Administration, resulted in my law firm
suffering financial losses in the amount of $173,000.00. The Small
Business Administration offered to provide my firm with a Disaster
Assistance Loan for that amount to help my firm recover from my
deployment. In addition to the financial suffering that my firm and my
family experienced because of my deployment, I was also injured and
have subsequently been rated by the United States Department of
Veterans Affairs to be 60 percent disabled.
On March 21, 2007, nearly 7 years after I originally filed my
complaint with the MSPB alleging that the Bureau of Prisons retaliated
against me by failing to process my application for the position of
Correctional Officer at the Metropolitan Detention Center in Brooklyn
New York, the New York Regional Office of the MSPB awarded me nearly
$300,000.00 in back pay. The Board also ordered the Bureau of Prisons
to appoint me, effective August 22, 2002, to the position of
Correctional Officer. The initial decision of the Board became final on
April 5th, 2007, when neither I nor the Agency appealed. As of this
date, The Bureau of Prisons has not reinstated me to the position of
Correctional Officer, nor has it timely paid me the back pay, interest,
and accrued leave that I am owed. In fact, tomorrow on November 1,
2007, I have been asked by the Bureau of Prisons to undergo a medical
examination at their institution in Otisville, New York to determine if
I am medically fit to perform the duties of Correctional Officer or
another position within the Bureau of Prisons. I believe as evidenced
by the MSPB's decision in my favor awarding me substantial back pay as
well as the original settlement agreement with the Bureau of Prisons in
2000 that all of my allegations of misconduct by Department of Justice
officials have been vindicated.
I would point out that Senator Specter, at my request, asked the
Bureau of Prisons if any employee was ever disciplined for violating my
rights under USERRA and Senator Specter's office was informed by the
Bureau of Prisons that despite the sworn admissions by Bureau of
Prisons employees nobody was disciplined for any of the discrimination
or retaliation that I was subjected to. Due to my personal experiences
as a victim of USERRA discrimination as well as being a member of the
New York Army National Guard and an Iraqi War Veteran, I have over the
past several years built a considerable law practice, primarily
representing others who have been victimized by their employers in
violation of USERRA.
from february 8th, 2005 thru december 30th, 2006
According to the U.S. Government Accountability Office, report
number GAO-07-907, during the time period February 8th, 2005 to
September 30th, 2006 the Department of Labor investigated 166
allegations of USERRA discrimination by Federal employees. During that
same time period, the Office of Special Counsel investigated 269
allegations for USERRA discrimination. I would point out that during
that time period my law firm not only investigated but prosecuted
before the MSPB, a total of 1,802 cases. That represents more than 4
times the combined number of cases that the Department of Labor and the
Office of Special Counsel handled during the same time period.
I would point out that on page 9 of the GAO report it listed 189
employees with the Department of Labor who are responsible for
investigating USERRA complaints, on page 16 of the GAO report the
Department of Labor said only about 7 percent of those 166 cases were
referred for prosecution, that means only approximately 12 cases during
the time period relevant to the GAO report was a DOL case actually
prosecuted before the MSPB. By contrast, in a July 6th, 2007 response
to the GAO report the Office of Special Counsel was proud of its 25
percent corrective rate, which translates into 67 times during the
relevant time period that a Federal employee received corrective action
from the Office of Special Counsel.
I find these numbers to be astonishing, given my law firms
experience with helping Federal employees win their USERRA claims
before the MSPB. I would point out that of the 1,802 cases, that my
firm investigated during the relevant time period our clients received
the remedy that they were seeking in approximately 73 percent of the
cases. That translates into a success rate nearly 3 times that of the
Office of Special Counsel and at the very least 10 times better than
the Department of Labor.
I would respectively point out that the GAO report referenced above
does not provide any of the Committees that it reported to with the
proper context of how a claim is investigated. Specifically, I would
note that on page 38 of the report it admits that it did not contact
any private law firm or attorneys that specialize in USERRA litigation.
Had it contacted myself or the handful of others who concentrate their
practice in USERRA enforcement they would have learned that very few
servicemembers who believe that they are the victims of USERRA
discrimination go to the Department of Labor. In my opinion, the
Department of Labor has built a reputation over the last 13 years of
poor investigative work, poor use of investigative tools such as,
issuing of subpoenas and demanding sworn testimony by employers and non
responsive investigators in addition to outrageously long processing
times.
I would further point out that the GAO report incorrectly shows
figures describing how USERRA claims are processed. I note on page 8 of
the report that it fails to list the retention of a private attorney
for the investigation and prosecution of claims. I believe that it is
important to point out to the Committee that private attorneys like
myself and others within my firm handle many more cases per year than
the Department of Labor, the Department of Justice, and the Office of
Special Counsel combined.
my opinion of the three ways to process a userra complaint
A. Department of Labor
In my opinion the Department of Labor has proven time after time
that they do not aggressively investigate allegations of USERRA
discrimination or retaliation. This is evidenced by the low number of
Reservists and National Guardsman who go to the Department of Labor for
help. I find it obscene that the Department of Labor has 189 personnel
assigned in various capacities to investigate USERRA violations and yet
my firm consistently investigates more allegations of USERRA violations
with an astronomically higher corrective rate.
I think at this point the Members of this Committee and others on
Capital Hill should consider abolishing this responsibility and
shifting the resources going to DOL vets to the Department of Defense
Employers Support of the Guard and Reserve (ESGR) who could handle all
of the educational briefings that DOL Vets claims it does and to the
Office of Special Counsel. In fact, as you will soon see in my
solutions to this problem, I believe that the Federal Government over
the next decade could save hundreds of millions of dollars by simply
abolishing the Department of Labor's involvement in USERRA enforcement
and mandating the award of attorney's fees and litigation costs when a
victim successfully proves his or her case of discrimination or
retaliation.
B. Office of Special Counsel
It is my opinion that the Office of Special Counsel has done a much
better job at investigating and prosecuting violations of USERRA than
the Department of Labor. Furthermore, it is my understanding in talking
with several people who had their matters investigated by the Office of
Special Counsel that they were treated in a professional and courteous
manner. I would further point out that the Office of Special Counsel
has taken great strides to improve its reputation, as recently as this
month it retained Sam Wright as one of its attorneys. I consider Sam
Wright, the Godfather of USERRA, my mentor, and my friend. I don't
believe that there is an attorney or for that matter any person on this
planet who knows USERRA better than Sam Wright. I have no doubts that
if the Office of Special Counsel is allowed to continue to investigate
and prosecute USERRA claims that their reputation will grow, and that
their processing time will be reduced and that their success rate will
dramatically increase.
As you will see in my solution to the problem, I believe it is
critical for the Office of Special Counsel to have ``Hatch Act'' like
powers to enforce USERRA.
C. Private Law Firms
Currently, my law firm is the largest law firm in the country that
handles large numbers of USERRA cases. We handle USERRA cases not only
against the Federal Government but against states and private
employers. Our track record of success is well documented and has
resulted in my law firm receiving on average 45 new USERRA allegations
per week. My firm has also signed an agreement with the American
Federation of Government Employees (AFGE) that will make us co-counsel
over the next 4 years on approximately 10,000 new cases of USERRA
discrimination pursuant to the United States Court of Appeals for the
Federal Circuit's new holding in Butterbaugh v. Department of Justice.
So that you can compare the Department of Labor, the Office of
Special Counsel and private law firms like mine, I would reiterate that
despite the dramatically higher number of cases that we investigated
during the relevant time during the GAO report we had a dramatically
higher success rate. I believe that this should clearly indicate to
this Committee that the way to end discrimination against members of
the National Guard and the Reserves is to look to private attorneys and
not to Government entities. If this Committee wants to properly protect
today's National Guard and Reservist and ensure that USERRA is properly
prosecuted and investigated it must not limit its research to just the
Department of Labor and the Office of Special Counsel. It must consider
the overwhelming success of persons who privately retain attorneys.
the solution
Not only am I going to provide this Committee with my opinions, my
observations and my thoughts but I will also provide you with common
sense solutions that I think will achieve Congress' intent of making
the Federal Government the model employer while also dramatically
reducing the number of people discriminated against because of their
military service. My solution is three fold:
1. Make attorney's fees mandatory when a victim proves his/her
allegations.
2. Give USERRA teeth by allowing judges to award liquidated,
compensatory and punitive damages.
3. Give the Office of Special Counsel disciplinary authority like
it has under the Hatch Act so that Federal supervisors are held
personally accountable for their violations of USERRA.
I believe that if this Committee does not make these three changes
to USERRA I will be back in 5 or 10 years and the situation will remain
the same whether it is the Department of Labor or the Office of Special
Counsel handling the investigation of the complaints, no significant
corrective measures will have been taken by Federal agencies, state
employers and private employers to protect members of the military
service, and I would especially point out that as the Global War on
Terrorism continues the number of National Guardsman and Reservists who
are being called to second, third and fourth tours of duty will force
an increase in the number of persons discriminated against.
I would ask you to place yourself in the shoes of a Reservist or
National Guardsman who since September 11th, 2001 has served in
Afghanistan for 12 months and in Iraq for 15 months and because of
those deployments is passed over for a position within the Federal
Government. Who would you call for help? The Department of Labor where
only 7 percent of the cases are referred for prosecution? The Office of
Special Counsel which has a 25 percent correction rate? Or, a highly
skilled privately retained attorney with a 70 percent correction rate?
Clearly, the answer is for the Federal Government to rely on private
attorney's to protect our fighting men and women. For private attorneys
to properly bare that burden Congress must pass and the President must
sign a Law that mandates attorney's fees so that more firms like mine
would be willing to provide no cost legal services to our citizen
soldiers.
USERRA should be amended to mandate the payment of reasonable
attorney fees, expert witness fees and other litigation expenses where
the claimant has procured an Order directing the employer to comply
with the provisions of the statute after a hearing or adjudication.
In a recent decision, the Court of Appeals for the Federal Circuit
determined that while the MSPB may award attorney fees and litigation
costs to successful USERRA claimants, such awards are not mandatory
under 38 U.S.C. Sec. 4324(c)(4). See, Jacobsen v. Department of
Justice, 2007 US App LEXIS 22412. The statute should be amended to
specifically overrule this interpretation.
The award of reasonable attorney fees and litigation costs is par-
for-the-course in virtually all other forms of employment
discrimination and veterans benefits litigation. For example, 33 U.S.C.
Sec. 918 entitles Longshoremen and harbor workers to attorney fees in
successful employment discrimination and workers' compensation claims.
Similarly, whistleblowers and veterans discriminated against in
violation of the Veterans Employment Opportunities Act are also
entitled to an award of attorney fees and litigation costs; just to
name a few.\1\ Congress clearly intended to ensure that veterans who
have meritorious employment discrimination complaints will not be
deterred from bringing such claims due to costs associated with the
effective assistance of counsel.
---------------------------------------------------------------------------
\1\ See, 5 U.S.C. Sec. 1221(g)(2); 5 U.S.C. Sec. 3330c(b); 29
U.S.C. Sec. 626; 29 U.S.C. Sec. 216(b); 10 U.S.C. Sec. 2409; 12 U.S.C.
Sec. 1975; 14 U.S.C. Sec. 425; and 16 U.S.C. Sec. 3117.
---------------------------------------------------------------------------
This intent must be stated in an amendment to USERRA so that no
deserving claimant will be forced to bear the burden of his or her own
legal representation, or worse, deterred from bringing the claim due to
economic hardship. Congress enacted USERRA to protect Veterans from
unlawful discrimination in their employment because of their military
service. An essential aspect of that protection is ensuring that
aggrieved Veterans have access to affordable, skilled, and experienced
legal counsel to successfully enforce their rights under USERRA.
Furthermore, over the past two (2) years, the Government
Accountability Office (GAO) has conducted multiple investigations into
the efficiency of USSERA enforcement.\2\ The reports unanimously
conclude that the Department of Labor (DOL) and the Department of
Justice (DOJ) are failing our service men and women in their
administration of USERRA. The GAO found deficiencies in the manner in
which both departments advised claimants, processed claims, and
enforced claimants' rights.\3\
---------------------------------------------------------------------------
\2\ See, GAO-06-60, October 2005; GAO-07-259; and, GAO-07-907, July
2007. All of these reports elucidate the ineptitude with which the DOL
and DOJ administer USERRA.
\3\ Id.
---------------------------------------------------------------------------
The current enforcement scheme fails to provide adequately for
victims of USERRA violations. Such a systematic failure to properly
administer the provisions and protections of the Act cannot be
justified. Under the circumstances, the only efficient and effective
method of redress for victims of USERRA violations is representation by
private counsel who will effectively pursue their claim. Given this
fact, a mandatory award of attorney fees is imperative in the interest
of justice; no victim of a USERRA violation should have to endure two
harms as a result of an unlawful employment practice, namely, the
denial of a benefit of employment and the financial burden of enforcing
his or her rights in the face of such a violation.
With this in mind, I propose that 38 U.S.C. Sec. 4324(c)(4) be
deleted and replaced with the following language:
(c)(4) If the Merit Systems Protection Board determines as a result
of a hearing or adjudication that the claimant is entitled to an
order referred to in paragraph (2), the Board shall order the
agency to comply with such provisions and award compensation for
any loss of wages or benefits suffered by the individual by reason
of the violation involved. A successful claimant SHALL be awarded
reasonable attorney fees, expert witness fees, and other litigation
expenses. (emphasis added).
Similarly, I propose that 38 U.S.C. Sec. 4323(h)(2), which governs
the remedies available to State and private employees, be amended to
read as follows:
(h)(2) In any action or proceeding to enforce a provision of this
chapter [38 USCS Sec. Sec. 4301 et seq.] by a person under
subsection (a)(2) who obtained private counsel for such action or
proceeding, the court SHALL award any such person who prevails in
such action or proceeding reasonable attorney fees, expert witness
fees, and other litigation expenses. (Emphasis added.)
These amendments are a cost-neutral and minimally restrictive
method for achieving our goals. By mandating the payment of reasonable
attorney fees and litigation costs, the amendment will effectively
overrule the prejudicial holding in Jacobsen and eliminate the barrier
between aggrieved veterans and the legal counsel they need to
adequately pursue their rights. It would also finally place USERRA on
equal ground with other employment discrimination and Veterans benefits
statutes, thereby effectuating the intent of Congress. This minor
revision will provide veterans the best option for enforcing their
rights, enabling them to retain private counsel and bypass the failed
DOL and DOJ administration system.
Moreover, the change will prevent malicious and detrimental agency
action. By making attorney fees a statutory benefit under the Act, we
can prevent the malicious and injurious agency conduct which occurred
in Seitz v. Department of Veterans' Affairs.\4\ In Seitz, the agency
intentionally protracted the litigation, thereby increasing the amount
of the claimant's litigation costs and attorney fees. On the eve of the
hearing, however, the agency paid the claimant the disputed amount of
damages and sought to moot the claim. As a result of the agency's
litigation tactics, an award only in the amount of the claimant's
disputed damages, was grossly insufficient to return the claimant to
the Status Quo Ante payment for the claimant's legal representation,
the Board ultimately concluded that the inappropriate conduct of the
agency entitled the claimant to litigate the issue of attorney fees.
---------------------------------------------------------------------------
\4\ See, Final Order dated March 7, 2007.
---------------------------------------------------------------------------
Nonetheless, codification of this principle is essential. Only by
expressly incorporating the claimant's statutory entitlement to
attorney fees can we prevent the aforementioned disingenuous conduct.
An agency must not be allowed to take actions that facilitate
unnecessary legal expenses and then, at the last minute, pay the
claimant damages in order to render the claim moot. This conduct places
the burden of legal representation on the claimant, in violation of
Congressional intent and the prevailing equitable considerations
favoring retention of private counsel by USERRA claimants.
useera must be amended to permit the office of special counsel to
investigate and discipline federal employees who violate the act.
5 U.S.C. Sec. 1215 provides the Office of Special Counsel (OSC)
broad powers to investigate and discipline Federal employees who
violate any ``law, rule or regulation'' falling within its vast
jurisdiction. Unfortunately, USERRA violators have not yet been subject
to the oversight and disciplinary authority of the OSC. USERRA should
be amended to empower OSC to investigate and punish violators
personally for their unlawful discriminatory acts. Personal liability
is the ultimate deterrent and its implementation would have a profound
effect on those unsavory individuals who might otherwise commit a
USERRA violation.
Thus, I propose that 38 U.S.C. Sec. 4324 be amended to provide for
three (3) new subparagraphs (f), (g), and (h) which read as follows:
(f)(1) Except as provided in subsection (g), if the Special Counsel
determines that disciplinary action should be taken against any
employee for having--
(A) committed a prohibited personnel practice, adverse or
unlawful employment practice, or violated any provisions of
this chapter;
(B) violated the provisions of any law, rule, or regulation, or
engaged in any other conduct within the scope of this chapter
[37 U.S.C. Sec. Sec. 4301 et seq.];
(C) knowing fully and willfully refused or failed to comply with
an order of the Merit Systems Protection Board, the Special
Counsel shall prepare a written complaint against the employee
containing the Special Counsel's determination, together with a
statement of supporting facts, and present the complaint and
statement to the employee and the Board, in accordance with
this subsection.
(2) Any employee against whom a complaint has been presented to the
Merit Systems Protection Board under paragraph (1) is entitled to--
(A) a reasonable time to answer orally and in writing, and to
furnish affidavits and other documentary evidence in support of
the answer;
(B) be represented by an attorney or other representative;
(C) a hearing before the Board or an administrative law judge as
prescribed by 38 U.S.C. Sec. 4324(c)(1)(A);
(D) have a transcript kept of any hearing under subparagraph(C);
and
(E) a written decision and reasons therefore at the earliest
practicable date, including a copy of any final order imposing
disciplinary action.
(3) A final order of the Board may impose disciplinary action
consisting of removal, reduction in grade, debarment from Federal
employment for a period not to exceed 5 years, suspension,
reprimand, or an assessment of a civil penalty not to exceed
$1,000.
(4) There may be no administrative appeal from an order of the
Board. An employee subject to a final order imposing disciplinary
action under this subsection may obtain judicial review of the
order by filing a petition therefore with such court, and within
such time, as provided for under section 7703(b) [5 USCS
Sec. 7703(b)].
(g) In the case of an employee in a confidential, policymaking,
policy-determining, or policy-advocating position appointed by the
President, by and with the advice and consent of the Senate (other
than an individual in the Foreign Service of the United States),
the complaint and statement referred to in subsection (f)(1),
together with any response of the employee, shall be presented to
the President for appropriate action in lieu of being presented
under subsection (f).
(h)(1) In the case of members of the uniformed services and
individuals employed by any person under contract with an agency to
provide goods or services, the Special Counsel may transmit
recommendations for disciplinary or other appropriate action
(including the evidence on which such recommendations are based) to
the head of the agency concerned.
(2) In any case in which the Special Counsel transmits
recommendations to an agency head under paragraph (1), the agency
head shall, within 60 days after receiving such recommendations,
transmit a report to the Special Counsel on recommendation and the
action taken, or proposed to be taken, with respect to each such
recommendation.
userra must be amended to mandate the payment of complete
compensatory damages for successful claimants.
Currently, USERRA does not provide a statutory entitlement to
compensatory damages for successful claimants. This is an anomaly in
employment discrimination and Veteran's benefits legislation.\5\
Pursuant to 38 U.S.C. Sec. Sec. 4301 and 4331, USERRA must be amended
to provide comparable relief to Federal employees for violations of the
Act. Law and equity demand that USERRA eligible employees receive the
same quality anti-discrimination protection as all other employees.
---------------------------------------------------------------------------
\5\ See, 42 U.S.C. Sec. Sec. 2000-1 et seq.; and, 5 U.S.C.
Sec. Sec. 3330 et seq.
---------------------------------------------------------------------------
Title VII was amended to provide for compensatory damages because
Congress recognized that a financial award, typically consisting of
back pay, is often insufficient, by itself, to fully compensate the
victim for his or her injuries. Discrimination cases commonly involve
complex, non-pecuniary injuries. Successful claimants should be
entitled to compensation for these injuries in addition to their
financial damages. For example, Section 102 of the Civil Rights Act of
1991 has been held to allow recovery for the following non-pecuniary
injuries under its compensatory damages remedy: ``future pecuniary
losses, emotional pain, suffering, inconvenience, mental anguish, loss
of enjoyment of life, and other non-pecuniary losses.'' \6\ The same
remedies available to victims of unlawful employment practices under
the Civil Rights Act of 1991 should be available to victims of
discrimination under USERRA.
---------------------------------------------------------------------------
\6\ Gilbert, Gary. ``Compensatory Damages and Other Remedies in
Federal Sector Employment Discrimination Case.'' 2nd ed. Dewey
Publications, Inc: Arlington, 2003. Page 97.
Therefore, I propose that 38 U.S.C. Sec. 4324(c) be amended to add
---------------------------------------------------------------------------
a new subsection (9) to read as follows:
(9) In any claim brought pursuant to the laws of this chapter [38
U.S.C. Sec. Sec. 4301 et seq.], where the Merit Systems Protection
Board or Administrative Judge determines that an employer failed to
comply with the provisions of this chapter, the Board or Judge
shall award the claimant compensatory damages in addition to, but
not including, any other relief granted pursuant to this chapter.
Additionally, I propose that 38 U.S.C. Sec. 4323(d)(1) be amended
to add a new subsection (E), which reads as follows:
(E) In any action brought pursuant to the laws of this chapter [38
U.S.C. Sec. Sec. 4301 et seq.], where the court determines that an
employer failed to comply with the provision of this chapter, the
court shall award the claimant compensatory damages in addition to,
but not including, any other relief granted pursuant to this
chapter.
userra must be amended to require the payment of
pre-judgment interest on all back pay awards.
As currently drafted, 38 U.S.C. Sec. 4323(d)(1)(B) provides that,
``[t]he court may require the employer to compensate the person
[claimant] for any loss of wages or benefits suffered by reason of the
employer's failure to comply with the provisions of this chapter.''
This section should be amended to specifically provided for the payment
of pre-judgment interest on back pay awards for three (3) reasons: (i)
an award of pre-judgment interest is necessary to fully compensate the
victim; (ii) Congress intended for awards of back pay to include an
award of pre-judgment interest; and, (iii) it is necessary in order to
provide the same level of protection to victims of USERRA violations
that Congress has extended to all other victims of employment
discrimination.
An award of back pay lacking accrued interest fails to properly
compensate the victim for his or her actual damages. For example,
paying someone in 2007 for a loss that was suffered in 2002 does not
take into account two (2) undeniable market forces that effect the
contemporary value of money: inflation and opportunity cost or time
value. If an aggrieved Veteran receives an award of back pay in 2007
for lost wages occurring in 2002, inflation will have devalued that sum
to a measurable extent. Furthermore, not having had that money in his
or her possession over the past five (5) years caused the victim to
lose his or her opportunity to invest that sum and earn interest.
It is true that neither Sec. Sec. 4323(d)(1)(B) nor 4324(c)(2)
expressly guarantees a successful claimant interest on an award of back
pay. Nonetheless, Congress clearly intended that Veterans discriminated
against in violation of USERRA should receive interest on awards.
Section 4323(d)(3) expressly provides for the payment of prejudgment
interest for awards against State and private employers. Additionally,
under USERRA's predecessor, the Veterans' Reemployment Rights Law of
1940 (VRR), prejudgment interest was commonly awarded, a fact that was
well known to Congress at the time of USERRA's enactment.\7\
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\7\ See, Captain Samuel F. Wright, JAGC, USNR article, ``Does
USERRA Provide Interest on Back Pay Awards?'' Law Review No. 0611,
posted on www.roa.org in April 2006.
---------------------------------------------------------------------------
Prejudgment interest is routinely awarded in all other employment
discrimination cases.
Prejudgment interest serves to compensate for the loss of money due
as damages from the time a claim accrues until judgment is entered,
thereby achieving full compensation for the injury these damages
are intended to redress[T]o the extent the damages awarded to the
plaintiff represent compensation for lost wages, it is ordinarily
an abuse of discretion not to include prejudgment interest. Fink v.
City of New York, 129 F.Supp 511, 525-26 (E.D.N.Y. 2001)
(Addressing interest on back pay awards under USERRA).
Until the statutory language is amended to unambiguously include
interest on awards for USERRA violations, zealous agency attorneys will
continue to argue that the absence of an express entitlement to an
award of interest is evidence that such an award is NOT mandatory.
Given the regularity with which these cases take years to resolve,
prejudgment interest is an essential part of any compensatory remedy.
Therefore, I propose that 38 U.S.C. Sec. 4323(d)(1)(B) be amended
to read as follows:
The court may require the employer to compensate the person
[claimant] for any loss of wages or benefits, INCLUDING INTEREST,
suffered by reason of the employer's failure to comply with the
provisions of this chapter. (Emphasis added)
As noted above, sections 4301(b) and 4331(b)(1) demand that Federal
employees receive at least the same degree of protection and quality of
benefits as all other employees under USERRA. Consequently, I propose
that Sec. 4324(c)(2) also be amended, and that it read as follows:
(2) If the Board determines that a Federal executive agency or the
Office of Personnel Management has not complied with the provisions
of this chapter [38 USCS Sec. Sec. 4301 et seq.] relating to the
employment or reemployment of a person by the agency, the Board
shall enter an order requiring the agency or Office to comply with
such provisions and to compensate such person for any loss of wages
or benefits, INCLUDING INTEREST, suffered by such person by reason
of such lack of compliance. (Emphasis added).
userra must be amended to expand the availability of
liquidated damages for successful claimants.
USERRA currently provides limited instances where a successful
claimant may be awarded liquidated damages. Pursuant to section
4323(d)(1)(C), if a claimant was found be the victim of a willful
violation, he or she is entitled to liquidated damages in the amount of
his or her actual damages. The provision, however, applies only to
servicemen and women employed by state or local governments or private
employers.
RAJA, H.R. 3393, proposes to amend section 4323(d) by extending its
coverage to Federal Government employees and by ensuring that
liquidated damages will always be available to victims of willful
USERRA violations. The bill seeks to increase the amount of liquidated
damages available to a successful claimant from the amount of his/her
actual damages to the greater of either $20,000.00 or the claimant's
actual damages. I support these proposals and hope to see both of them
implemented. Additionally, the section should be amended to remove the
willful violation requirement for liquidated damages.
The payment of liquidated damages is often the only true award
granted to victims of USERRA violations. For example, if the victim of
a wrongful termination under USERRA promptly finds comparable work, his
or her actual damages may be quite small. As a result, an award of
additional liquidated damages that merely doubles his or her miniscule
actual damages award is an insufficient deterrent to employers who
would discriminate against military personnel in civilian employment.
Liquidated damages of the greater of $20,000.00 or the claimant's
actual damages should be available to USERRA claimants in every case.
It is imperative that the language in RAJA extending this provision
to protect Federal employees in the same manner as state and private
employees is adopted. The purpose of USERRA is to protect ALL veterans,
reservists and National Guard members irrespective of their place of
employment. By treating our service men and women differently by virtue
of their employer we are defeating the very basis of the statute.
USERRA demands parity. Justice demands parity. Equitable treatment
among all USERRA eligible employees is an ethical absolute and is
necessary to fulfill the intent of Congress by extending the promise of
USERRA protections to all eligible employees.
Therefore, I propose that section 4323(d) be amended to read as
follows:
(1) In any action under this section, the court may award relief as
follows: (C) If the court determines that an employer has failed to
comply with the provisions of this chapter, the court SHALL require
the employer to pay the person as liquidated damages an amount
equal to the greater of: . . . (i) the amount referred to in
subparagraph (B); or (ii) $20,000.00. (Emphasis added).
Additionally, section 4324(c) must be amended, pursuant to 38
U.S.C. Sec. Sec. 4301 and 4331, to provide the same protection. I
propose that 38 U.S.C. 4324(c) be amended to add a new subsection (7)
which reads as follows:
(7) In any action under this section, the court may award relief as
follows: (i) if the court determines that an employer has failed to
comply with the provisions of this chapter, the court SHALL require
the employer to pay the person as liquidated damages an amount
equal to the greater of: (A) the amount referred to in subparagraph
(C)(2); or (B) $20,000.00. (Emphasis added).
userra must be amended to provide for punitive damages
in the worst cases of discrimination.
Presently, USERRA does not provide for an award of punitive
damages. As mentioned above, section 4323(d) allows for liquidated
damages in only the most limited of instances. Representative Davis'
RAJA proposals, however, include a provision that would allow for
punitive damage awards to victims of the worst kinds of discrimination.
H.R. 3393 proposes to amend USERRA section 4323(d) to provide for
the availability of punitive damages, in addition to liquidated
damages, where the court finds that the violation was committed with
``malice or reckless indifference to the federally protected rights of
the person.'' The proposal would apply only to state and local
governments and private employers with more than fifteen (15)
employees. I support these proposals. However, I believe that punitive
damage awards need to be expanded even further.
Punitive damage awards should be available in all cases where the
employer knowingly, willfully, maliciously or with reckless
indifference violated an employees protected USERRA rights. Punitive
damages are imposed as a deterrent to future egregious behavior. Any
act taken by an employer of his or her own volition with the knowledge
that he or she is denying a member of the military his or her protected
rights offends the most sacred principles of our society. Such behavior
must be discouraged in the clearest and strongest manner possible. A
simple amendment to the existing law unambiguously granting employees a
right to punitive damages in such cases will greatly reduce the number
of employers willing to flout the law.
Moreover, limiting the availability of punitive damage awards to
cases against state and local governments and private employers of 15
or more persons leaves a vast number of USERRA-eligible employees
unprotected. Congress intended for veterans benefit and employment
discrimination statutes to apply to all eligible parties equally,
regardless of their employer. By allowing punitive damage awards only
for employees of state and local governments and large private
employers, the RAJA proposal discriminates against an enormous number
of veterans, reservists and National Guard members who are employed
either by Federal agencies or by smaller private employers. USERRA, to
be effective, demands parity. How can we look a veteran in the eye and
tell him or her that we value his or her service less because he or she
is employed by a ten (10)-person construction crew and not by the
Commonwealth of Massachusetts or Morgan Stanley?
Therefore, I propose that 38 U.S.C Sec. 4323 be amended to read as
follows:
(d)(1)(D) If the court determines that the employer willfully,
knowingly, maliciously, or with reckless indifference failed to
comply with the provisions of this chapter, in violation of the
employee's federally protected rights, the person shall be entitled
to an award of punitive damages in addition to all other remedies
outlined in this chapter.
Likewise, 38 U.S.C Sec. 4324(c) must also be amended to provide for
punitive damages awards in cases of willful or malicious
discrimination. I propose section 4324(c) be amended to add a new
subsection (8) to read as follows:
(8) If the court determines that the employer willfully, knowingly,
maliciously, or with reckless indifference failed to comply with
the provisions of this chapter, in violation of the employee's
federally protected rights, the person shall be entitled to an
award of punitive damages in addition to all other remedies
outlined in this chapter.
userra must be amended to make injunctive and interim
relief mandatory where appropriate.
Under the current statutory structure, section 4323(e) of USERRA
permits courts to invoke their full equity powers to remedy violations
at the courts' discretion. Section 4324 contains no provision regarding
the courts' power to grant equitable relief. In 2005 the Seventh
Circuit Court of Appeals upheld a lower court decision denying
injunctive relief under section 4323(e) in Bedrossian v. Northwestern
Memorial Hospital, 409 F.3d 840 (7th Cir 2005). Dr. Bedrossian, in
addition to his military service in the Air Force Reserves, was
employed as a physician and professor at Northwestern Memorial
Hospital. The Hospital sought to fire Dr. Bedrossian because of the
inconvenience caused by his military service and the Doctor responded
by seeking an injunction. The trial court held, and the Seventh Circuit
affirmed that, regardless of the strength of the claimant's case, an
injunction was not an available remedy. This decision should be
overruled.
By merely, changing the word ``may'' in section 4323(e) to
``shall'', Congress could ensure that equitable relief is available to
all USERRA victims when appropriate. The claimant would still need to
demonstrate his or her entitlement to equitable relief in the form of
an injunction. However, under the proposed amendment, once the claimant
has established that an injunction is appropriate, the court would be
required to grant it.
This proposal is one of many contained in H.R. 3393, the Reservists
Access to Justice Act (RAJA), sponsored by Representative Artur Davis
(D-AL). RAJA recognizes that the driving force behind the enactment of
USERRA was to support and protect the members of our armed forces. The
national defense interests of our country require that the segment of
our military composed of civilian employees is supported by their
civilian employers. We are currently fighting a global war on terror on
multiple fronts. For the first time in our Nation's history we are
waging war on a grand scale without conscription and in reliance on an
all volunteer military; Congress recognizes this and strongly supports
this Nation's commitment to voluntary military service. Nonetheless:
Congress also recognizes that the reliance on volunteers means that
we must include substantial incentives for young men and women to
join and remain in our Nation's uniformed services. We also must
mitigate the disincentives to service, including the realistic fear
that ``if I sign up, I will lose my civilian job.'' \8\
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\8\ See, Captain Samuel F. Wright, JAGC, USNR article, ``Firmer
Teeth: Legislation introduced to enhance USERRA enforcement'' Law
Review No. 0754, posted on www.roa.org in October 2007.
Thus, I, too, propose that 38 U.S.C. Sec. 4323 be amended to add a
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new subsection (e) which reads as follows:
The court SHALL use its full equity powers, including temporary or
permanent injunctions, temporary restraining orders, and contempt
orders, to vindicate fully the rights or benefits of persons under
this chapter. (Emphasis added)
Pursuant to 38 U.S.C. Sec. 4301(b), ``It is the sense of Congress
that the Federal Government should be a model employer in carrying out
the provisions of this chapter [38 USCS Sec. Sec. 4301 et seq.]'' With
this in mind, Congress enacted 38 U.S.C. Sec. 4331(b)(1) which states,
in relevant part:
The Director of the Office of Personnel Management (in consultation
with the Secretary and the Secretary of Defense) may prescribe
regulations implementing the provisions of this chapter [38 USCS
Sec. Sec. 4301 et seq.] with regard to the application of this
chapter [38 USCS Sec. Sec. 4301 et seq.] to Federal executive
agencies (other than the agencies referred to in paragraph (2)) as
employers. Such regulations shall be consistent with the
regulations pertaining to the States as employers and private
employers, except that employees of the Federal Government may be
given greater or additional rights. (Emphasis added).
Therefore, any amendment to Sec. 4323 resulting in greater benefits
to an employee must also, by law, be reflected in a comparable
amendment to Sec. 4324. As a result, I also propose that section
4324(c) be amended to provide a new subsection (5) that reads as
follows:
The Merit System Protection Board or Presiding Administrative Judge
SHALL use its full equity powers, including temporary or permanent
injunctions, temporary restraining orders, and contempt orders, to
vindicate fully the rights or benefits of persons under this
chapter. (Emphasis added)
Additionally, USERRA should be amended to provide for interim
relief comparable to that afforded to other employees under 5 U.S.C.
Sec. 7701(b)(2) for deserving section 4324 claimants. 5 U.S.C.
Sec. 7701(b)(2) directs the Merit Systems Protection Board (MSPB or
Board) to award successful Appellants, ``the relief provided in the
decision effective upon making the decision, and remaining in effect
pending the outcome of any petition for review under subsection (e).''
In contrast, USERRA does not require a Federal Executive Agency under
section 4324 to furnish any relief until a final decision has been
entered. Thus, a claimant who successfully established an unlawful
employment practice may be required to remain unemployed and
uncompensated for a period of up to two (2) years until the MSPB enters
a final decision, whereas, an otherwise identical claimant who files an
action before the Equal Employment Opportunity Commission is entitled
to interim relief immediately upon the entering of an initial decision.
This inequity cannot be justified and must be remedied.
The MSPB's interim relief authority pursuant to 5 U.S.C.
Sec. 7701(b)(2) must be extended to USERRA claims. Therefore, I propose
that 38 U.S.C. Sec. 4324(c) be amended to provide a new subsection (6)
that reads as follows:
(e)(1) If an employee or applicant for employment is the prevailing
party in an appeal under this subsection, the employee or applicant
shall be granted the relief provided in the decision effective upon
the making of the decision, and remaining in effect pending the
outcome of any petition for review under subsection (d), unless--
(A)(i) the relief granted in the decision provides that such
employee or applicant shall return or be present at the place
of employment during the period pending the outcome of any
petition for review under subsection (e); and
(ii) the employing agency, subject to the provisions of
subparagraph (a), determines that the return or presence of
such employee or applicant is unduly disruptive to the work
environment.
(2) If an agency makes a determination under subparagraph (A) that
prevents the return or presence of an employee at the place of
employment, such employee shall receive pay, compensation, and all
other benefits as terms and conditions of employment during the
period pending the outcome of any petition for review under
subsection (d).
The extensive deployment of Reservists and Members of the National
Guard in furtherance of the War Against Terror has only compounded the
inequity and made the need for congressional intervention more
pronounced.
As Army Chief of Staff Gen. George W. Casey Jr. stated during a
recent Association of the United States Army Convention, ``Our reserve
components are performing magnificently, but in an operational role for
which they were neither designed nor resourced. They are no longer a
strategic reserve, mobilized only in national emergencies. They are now
an operational reserve deployed on a cyclical basis,'' enabling the
Army to sustain operations. ``Operationalizing'' the reserve components
``will require national and state consensus, as well as the continued
commitment from employers, soldiers and families,'' Casey said
(emphasis added). ``It will require changes to the way we train, equip,
resource and mobilize.''
I could not agree with General Casey more. As the National Guard
and Reserves change to an operational reserve, it is vital to our
national security and our homeland defense to ensure members of these
units are protected from losing their full-time careers while they
defend our country at home and abroad. The time for a major overhaul of
the laws that protect the employment rights of members of the National
Guard and Reserves is upon us.
As currently drafted, the Uniformed Services Employment and
Reemployment Rights Act of 1994 (USERRA) fails to adequately support
military personnel upon their return to civilian employment. The
Honorable Representative Artur Davis (D-AL) recently sponsored new
legislation, H.R. 3393, to address some of the law's deficiencies. I
urge you to demonstrate your strong commitment to the brave men and
women who serve in the armed forces by supporting these amendments and
by incorporating the additional proposals contained within this
correspondence into a new more comprehensive updating of USERRA. Please
fight to get this updated USERRA bill passed as quickly as possible.
Our national defense and homeland security depend on the men and
women in our National Guard and Reserves, and while they are protecting
us we should be protecting their civilian jobs. We never want to be in
the situation where members of the reserves need to pick between
helping our national defense and their civilian careers, as that will
undermine our security. Unfortunately, too many have been placed in
that situation, and after many deployments (both overseas and stateside
guarding our bridges, tunnels, nuclear power plants, and responding to
natural disasters) have chosen their civilian careers over their
service to our country. This exodus of highly skilled and trained
personnel could undermine our recruiting efforts and result in a
hollowed out military force unless Congress takes immediate action to
strengthen the weak links. Fixing USERRA is a good first step to taking
away the fear of a deployment and how that deployment will have a
negative impact on their civilian careers.
userra must be amended to protect national guard members who
are called to active duty in state service.
Active duty National Guard members fulfilling State service
obligations are currently excluded from USERRA protection under 38
U.S.C. Sec. 4303(13). The definition of ``service'' contained in that
chapter includes virtually all other types of uniformed, military duty;
including ``full-time National Guard'' service. The statute expressly
recognizes the vital importance of National Guard service to our
security interests. Whether those duties are performed on full or part-
time status, or in furtherance of Federal or State objectives, is of
little consequence when evaluating the critical importance of the task.
National Guard members called to State service are deployed to defend,
protect, rebuild and sustain American infrastructure and communities.
These emergency responders are an integral component of our homeland
security strategy, the indispensability of which was heroically
demonstrated in the aftermath of September 11th and the devastation of
Hurricane Katrina.
Justice demands that their contributions to our national defense
and homeland security do not go unrecognized. USERRA must be amended to
reflect the contributions of National Guard members serving under State
obligation and to protect their civilian livelihood. The distinction
between State active duty and Federal active duty for the purposes of
USERRA protection is an arbitrary one; we must provide all of our
uniformed servicemembers with equal protection under the law.
Thus, I propose that 38 U.S.C. Sec. 4303(13) be amended to read as
follows:
(13) The term 'service in the uniformed services' means the
performance of duty on a voluntary or involuntary basis in a
uniformed service under competent authority and includes: active
duty; active duty for training; initial active duty for training;
inactive duty training; full-time National Guard; service in the
National Guard under competent state military authority while in
support of a homeland security mission, in response to a natural
disaster, in response to aid to civil authorities, or for any other
reason that the Governor of the state declares the need for a state
activation of the National Guard is necessary, a period for which a
person is absent from a position of employment for the purpose of
an examination to determine the fitness of the employment for the
purpose of performing funeral honors duty as authorized by section
12503 of title 10 or section 115 of title 32.
userra must be expanded to protect members of the commissioned corps of
the national oceanic and atmospheric administration.
The National Oceanic and Atmospheric Administration (NOAA) occupies
a pivotal role in national defense and homeland security. As the first
line of defense against natural disaster, NOAA is charged with the
protection of our persons, property, national security and economic
interests.
Notably, NOAA administers the Defense Meteorological Satellite
Program (DMSP) in conjunction with the Department of Defense (DOD). The
program involves complex aerospace and weapons development and requires
the maintenance of a massive satellite network, sensory aircraft and
specialized monitoring equipment. NOAAs persistent geological
monitoring and intelligence gathering are fundamental to our national
security operations.
Inexplicably, USERRA excludes members of the commissioned corps of
the National Oceanic and Atmospheric Administration from the definition
of ``uniformed service.'' \9\ This exclusion precludes NOAA employees
from invoking USERRA protections in the face of unlawful employment
actions. The exclusion is an anomaly and appears to be a clerical error
given the inclusion of NOAA members in other statutory definitions of
``uniformed service.'' \10\ The Act must be amended to eliminate this
injustice and to provide critical service men and women with the same
benefits their uniformed service compatriots share.
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\9\ 38 U.S.C. Sec. 4303(16).
\10\ 10 U.S.C. Sec. 101(a)(5)(B).
---------------------------------------------------------------------------
Consequently, I propose that 38 U.S.C. Sec. 4303(16) be amended to
read as follows:
(16) The term ``uniformed services'' means the Armed Forces; the
Army National Guard and the Air National Guard when engaged in
active duty for training, inactive duty training, or full-time
National Guard duty; the commissioned corps of the Public Health
Service; the commissioned corps of the National Oceanic and
Atmospheric Administration; and any other category of persons
designated by the President in time of war or national emergency.
userra must be amended to unambiguously preclude userra claims
from binding arbitration.
38 U.S.C. Sec. 4302(b) expressly states that any law, agreement, or
practice which, ``reduces, limits, or eliminates in any manner any
right or benefit'' provided under USERRA is preempted by the statute.
Nonetheless, the Fifth Circuit Court of Appeals recently held that this
provision only preempts agreements limiting the claimants' substantive
rights and not his or her procedural rights (e.g. the right to pursue a
lawsuit in Federal court as opposed to being required to proceed via
arbitration). See, Garrett v. Circuit City Stores, Inc., 449 F.2d 672
(5th Cir. 2006). This is an egregious misapplication of the text and
purpose and intent of USERRA and must be overturned by legislative
mandate. Veterans must not be denied the procedural due process of law
as a result of employment agreements contradicting Federal law.
Accordingly, I implore you to support RAJA, H.R. 3393, and its
proposed amendment to Chapter 1 of Title 9 of the United States Code,
which would unambiguously exempt USERRA disputes from binding
arbitration agreements and expressly overrule Garrett. In that vein, I,
too, propose that 38 U.S.C. Sec. 4322 be amended to add a new
subsection that reads as follows:
(g) Chapter 1 of title 9 shall not apply with respect to employment
or reemployment rights or benefits claimed under this subchapter.
userra must be amended to adopt two additional exceptions to section
4312's 5-year limitation on section 4313 reemployment rights.
As currently drafted, USERRA's reemployment protections lapse after
a 5-year period of consecutive active duty service. Section 4312(c)
establishes eight specific exceptions to this 5-year limitation,
thereby enabling employees to serve five or more years of continuous
active duty while working for a single employer and retaining his or
her reemployment rights under the Act. Additionally, the Department of
Labor (DOL) regulations implementing USERRA recognize a ninth
exception.
DOL USERRA regulation Sec. 1002.103 applies to servicemembers who
are forced to mitigate economic losses suffered as a result of an
employer's USERRA violation. The regulation provides, in relevant part,
that a servicemember who remains or returns to the armed services in an
attempt to ``mitigate economic losses caused by the employer's unlawful
refusal to reemploy that person,'' \11\ shall not be required to count
the time ``against the 5-year limit.'' \12\ The regulation is grounded
in equitable considerations. Those same considerations demand that the
exception created by the regulation be fully incorporated into the text
of the statute.
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\11\ 20 C.F.R. 1002.103.
\12\ Id.
I propose that 38 U.S.C. Sec. 4312(c) be amended to add a new
---------------------------------------------------------------------------
subsection (5) which reads as follows:
(5) which is undertaken by an individual who remains in or, returns
to, uniformed service in order to mitigate economic damages
suffered as a consequence of the employer's unlawful failure to
comply with the provisions of this chapter.
An additional exception should also be added for National Guard
members who are called to state active duty service in response to
homeland emergencies. As currently drafted, time spent fulfilling
active duty training commitments, time on active duty support for
critical missions and time called upon for Federal active duty National
Guard service are all exempt from consideration in calculating a
person's 4312 time. Presumably, these missions are considered so
important that they warrant preferential treatment. Under this
reasoning, active duty service in furtherance of a State's emergency
response is an equally compelling interest and should receive
equivalent treatment.
Homeland emergency response is an integral component of our
homeland security strategy. The fact that disasters and emergencies
requiring the mobilization of active duty National Guard forces are
generally unforeseeable adds weight to the argument that service men
and women should not be penalized in their USERRA reemployment rights
because they were required to answer the call to service. USERRA must
be amended to take into account the sacrifices of guardsmen and their
families during times of crisis. National Guard members who respond to
such crises in State service should be entitled to the same protections
as their Federal counterparts.
Therefore, I propose that 38 U.S.C. Sec. 4312(c) be amended to
provide for a new subsection (6) that reads as follows:
(6) service in the National Guard under competent state military
authority while in support of the homeland, in response to a
natural disaster, in response to aid to civil authorities, or for
any other reason that the Governor of the state declares the need
for a state activation of the National Guard is necessary.
userra must be amended so that the term ``adjudication''
inSec. 4324(c)(1) is defined as providing the same procedures available
to appellants under 5 u.s.c. Sec. 7701.
In its current incarnation, USERRA does not expressly outline the
formal due process to which claimants are entitled when bringing a
claim for relief of an alleged violation of the Act. In Kirkendall v.
Department of the Army, the Court of Appeals for the Federal Circuit
concluded that every USERRA claimant has a right to a hearing and that
he or she is entitled to the same procedures as an ``appellant'' under
5 U.S.C. Sec. 7701(a). See, Kirkendall v. Department of the Army, 479
F.3d 380 (Fed. Cir. 2007).
5 U.S.C Sec. 7701(a) expressly provides for basic due process
formalities in other appeals brought before the MSPB. USERRA should be
amended so that both sections 4323 and 4324 unambiguously state the due
process rights afforded to claimants. USERRA claimants must be granted
the same procedural protections that the United States Code extends to
other employees. Codification of the holding in Kirkendall will
effectively extend the due process protections of 5 U.S.C. Sec. 7701(a)
to USERRA claimants and correct any enduring ambiguities.
Therefore, I propose that 38 U.S.C. Sec. 4323(a) be amended to
incorporate a new subsection (3) which reads as follows:
(3) Any employee, or applicant for employment, who submits any
claim or action for relief pursuant to the rights outlined in this
chapter [38 U.S.C. Sec. Sec. 4301 et seq.] shall have the right:
(A) to a trial by Judge or Jury, for which a transcript will be
kept; and
(B) to be represented by an attorney or other representative.
In addition, I propose that 38 U.S.C. Sec. 4324(c)(1) be amended to
provide for a new subparagraph (A) which reads as follows:
(A) Any employee, or applicant for employment, who submits any
claim or action for relief pursuant to the rights outlined in this
chapter [38 U.S.C. Sec. Sec. 4301 et seq.] shall have the right:
(i) to a hearing for which a transcript will be kept; and
(ii) to be represented by an attorney or other representative.
userra section 4324 must be amended to state unequivocally that there
is no statute of limitations provision governing the time period in
which to bring a claim under the act.
Section 4323(i) clearly states that ``[n]o Statute of Limitations
shall apply to any proceeding under this chapter [38 USCS
Sec. Sec. 4301 et seq.].'' Sections 4301 and 4331 compel Congress to
amend section 4324 to provide the same protection to Federal Government
employees.
The MSPB has already held that no Statute of Limitations applies to
cases brought under Sec. 4324. See, Hernandez v. Department of the Air
Force, 2007 U.S. App. LEXIS 20280, 6-7. Nonetheless, codification of
this principle is the only way to ensure that future Federal Executive
Agencies will not successfully overturn this ruling and reinstate the
arbitrary distinction between Federal employees and all other employees
for the purpose of USERRA Statute of Limitations claims.
Therefore, I propose that 38 U.S.C. Sec. 4324 be amended to add a
new subsection (e) which reads as follows:
(e) Inapplicability of statute of limitations. No statute of
limitations shall apply to any proceeding under this chapter [38
USCS Sec. Sec. 4301 et seq.].
userra must be amended to create a new section, section 4327, for the
purpose of adjudicating claims by federal judiciary branch employees.
USERRA presently provides no enforcement mechanism for employees of
the Federal judiciary branch to adjudicate claims under the Act. The
inequity in such a discrepancy is apparent. USERRA was not drafted to
apply only to employees of certain branches of the Federal Government.
The Act must be amended to provide employees of the Federal judiciary
branch the same anti-discrimination protections and enforcement
mechanisms available to all other Federal employees.
A new section, section 4327, should be created to establish the
adjudicative body, procedures and protections available to Federal
judiciary branch employees under USERRA. The Section should otherwise
be identical to section 4324, including all of my proposed revisions.
userra must be amended to improve enforcement and procedural
transparency for federal employees of intelligence agencies.
Pursuant to 38 U.S.C. Sec. 4315, most employees of Federal
Intelligence Agencies, including all employees of agencies governed by
5 U.S.C. Sec. 2302(a)(2)(C)(ii), are not entitled to the same
adjudicative procedures available to employees of other Federal
Executive Agencies under 38 U.S.C. Sec. 4324. This is an arbitrary
distinction and one that contradicts the express purpose of the Act. As
such, it should be remedied.
As a threshold matter, Sec. 4315 should be amended to require that
all adjudicative ``procedures'' prescribed pursuant to subsection (a)
be published within 120 days of the date the new Bill is signed into
law. Procedural transparency is essential to the efficient and orderly
administration of the statute. Employees cannot properly pursue their
rights under the law if the requisite procedures are cloaked in
secrecy. I appreciate the Intelligence community's unique
circumstances. Nonetheless, I see no threat to our national security in
requiring the agencies to publish their internal rules regarding USERRA
enforcement.
Furthermore, Sec. 4315 should be amended to provide employees of
the agencies within 5 U.S.C. Sec. 2302(a)(2)(C)(ii) with the same
procedural rights and available remedies bestowed upon Sec. 4324
employees. Again, denying certain Federal employees equal rights under
USERRA based merely upon the Federal agency by which they are employed
is an arbitrary delineation and one that contradicts the purpose and
intent of the Act.
Therefore, I propose that 38 U.S.C. Sec. 4315 be amended to mirror
section 4324's procedural mechanisms and remedies, including all of my
proposed revisions.
userra must be amended to require that any state accepting federal
funding must waive its 11th amendment sovereign immunity in userra
actions.
In his RAJA proposal, H.R. 3393, Representative Davis has included
language that would amend USERRA to ensure that any state accepting
Federal funding for a state program or activity is deemed to have
waived its Sovereign Immunity in cases of USERRA violations. I
wholeheartedly support this proposal and beseech you to do the same.
This proposal is imperative to prevent further instances in which
an aggrieved veteran with a legitimate right to enforce is denied
relief due to the lack of a forum in which to pursue his or her claim.
In Larkins v. Department of Mental Health and Mental Retardation, 806
So.2d 358 (AL Sup Ct 2001), that exact scenario unfolded. Mr. Larkins
was forbidden from suing the State of Alabama in Federal Court because
of the Eleventh Amendment of the Constitution of the United State's
Sovereign Immunity clause. Moreover, he was denied relief in the
Alabama State Court system by reason of Alabama's own State
Constitutional Sovereign Immunity protection. Thus, Mr. Larkins found
himself with a substantive right to enforce but no effective method for
enforcing it. An unenforceable right is of no value to an injured
party.
By amending the Act to provide for a waiver of the 11th Amendment's
Sovereign Immunity protection for states accepting Federal funding for
state projects, RAJA ensures that no other USERRA eligible employee
will suffer Mr. Larkins' fate. Removing the defense of Sovereign
Immunity guarantees USERRA claimants will always be able to pursue
their claims against the State-as-employer in Federal court. This
provision is necessary in order to extend the congressionally
envisioned protections of USERRA to all eligible employees.
Consequently, I, too, propose that 38 U.S.C. Sec. 4323(d)(1) be
amended to read as follows:
(j)(1)(A) A State's receipt or use of Federal financial assistance
for any program or activity of a State shall constitute a waiver of
sovereign immunity, under the eleventh amendment to the
Constitution or otherwise, to a suit brought by an employee of that
program activity under this chapter for the rights or benefits
authorized the employee by this chapter. (B) In this paragraph, the
term ``program or activity'' has the meaning given the term in
section 309 of the Age Discrimination Act of 1975 (42 U.S.C.
Sec. 6107).
userra must be amended to provide veterans the right to
bring their claims in either state or federal court.
Presently, section 4323(b) of USERRA allows veterans to bring cases
against private employers in Federal court and cases against the state
in state court. RAJA, H.R. 3393, proposes to amend the Act by granting
veterans the right to bring their claims in either state or Federal
court regardless of whether they are employed by the state or a private
employer. I support this proposal and urge you to do the same. The
additional flexibility such an amendment provides is vital to
guaranteeing USERRA-eligible employees the best opportunity to
successfully pursue their claims.
As a result, I too propose that section 4323(d)(1) be amended to
remove the current paragraphs denoted as (2) and (3) and replace them
with a new paragraph (2) that reads as follows:
(2) In the case of an action against a State (as an employer) or a
private employer by a person, the action may be brought in a
district court of the United States or state court of competent
jurisdiction.
the united states code must be amended to extend userra protections to
employees of the transportation security administration.
USERRA does not presently apply to employees of the Transportation
Security Administration (TSA). TSA is typically exempt from employment
discrimination statutes. This Congressional policy decision, however,
failed to weigh the importance of USERRA protection to our national
defense and security interests. USERRA is a unique statute. It requires
unique administration and unique enforcement mechanisms. The Act is
designed specifically to encourage enrollment in the uniformed services
of this country. This has never been more vital. The military Reserves
and National Guard are currently fully operational and members of these
units compose a significant portion of our active duty forces deployed
across the globe. Under these circumstances, it is absolutely
imperative that USERRA protection is extended to each and every
civilian-employed member of the uniformed services; including TSA
employees.
Therefore, I propose that 38 U.S.C. section 4303(5) be amended to
read as follows:
(5) The term ``Federal executive agency'' includes the United
States Postal Service, the Postal Rate Commission [Postal
Regulatory Commission], any non-appropriated fund instrumentality
of the United States, the Transportation Security Administration,
any Executive agency (as that term ifs defined in section 105 of
title 5 [5 USCS Sec. 105]) other than an agency referred to in
section 2302 (a)(2)(C)(ii) of title 5 [5 USCS
Sec. 2302(a)(2)(C)(ii)], and any military department (as that term
is defined in section 102 of title 5 [5 USCS Sec. 102]) with
respect to the civilian employees of that department.
The proposed changes outlined above are pivotal in advancing our
national defense interests and achieving parity and equity in the
workplace. USERRA was designed and implemented to provide comprehensive
anti-discrimination protection for military personnel in civilian
employment. In order to effectuate this congressional mandate, we must
improve opportunities for injured veterans to pursue their rights under
the Act, increase the statutory mechanisms that serve as deterrents to
unlawful employer behavior, and create uniformity in the law's
protections to all USERRA-eligible employees, regardless of their
employer.
USERRA should no longer be a second-class anti-discrimination
statute; we owe it to our service men and women to provide them with
the premier anti-discrimination law in the land. We must encourage
military service in our all-volunteer forces and ensure that those who
have served are properly cared for upon their return home, now more
than ever. The proposed changes represent the least restrictive means
possible for effectuating legitimate equality in the workplace and
guaranteeing that no one other than a USERRA violator will bear the
costs of the improved enforcement.
Chairman Akaka. Thank you. Thank you very much, Mr. Tully.
I want you to know that we appreciate your thoughts and
various recommendations for improvements in USERRA and that we
will be looking into those as we draft future legislation on
the subject. It is astounding for me to hear that you had 4,802
cases to deal with along this line.
Mr. Tully, I would like your answer to the same question as
I asked other witnesses this morning. I am deeply concerned
that individuals who were sent to battle by the Federal
Government are put in the position of having to do battle with
that same government in order to regain their jobs when they
return home. In your experience, can you think of any reason
that the Federal Government as an employer would have any
problems with complying with USERRA for its employees? In your
experience, are the problems facing servicemembers when they
return to claim their jobs the position itself, or benefits
associated with that position?
Mr. Tully. Mr. Chairman, just to point out, it is 1,802
clients that we had during the demonstration project. I wish we
had 4,000.
Chairman Akaka. Thank you for that correction.
Mr. Tully. I believe the No. 1 problem is ignorance of the
law. Many of the Federal supervisors are not up to date on the
ins-and-outs of USERRA and the escalator principles. That is
why one of my proposals is giving the Office of Special Counsel
disciplinary powers. The first time the Office of Special
Counsel brings a disciplinary action against a supervisor who
violated USERRA, that will dramatically decrease the number of
USERRA violations you have in the Federal Government. And I
think as part of the demonstration project, not only getting
the monetary damages that are due to a servicemember, but
bringing about justice to the supervisors who inflicted the
harm on the person is critical. Right now, there is no
mechanism to punish a Federal supervisor who violates USERRA.
And I believe the second problem is budgetary. Many of the
Federal agencies are being crunched due to financial
constraints. If they lose somebody, like, for example, the
Chief of Staff for the Department of Labor VETS, somebody else
has to fill that spot and some positions may not have to be
filled on an overtime basis, but in the Federal law enforcement
communities, they have to fill those posts. So for my position,
for example, as a corrections officer, my post when I left had
to be filled and that cost the Bureau of Prisons my salary plus
time-and-a-half for somebody else to fill it, and that builds
up a little bit of animosity.
Chairman Akaka. Mr. Tully, your testimony presents an
interesting perspective on the jurisdictional question. It
could tend to lead one to conclude that there are hundreds of
USERRA violations and cases out there that are not tracked or
even recorded or even cared about. Do you believe that this is
the situation?
Mr. Tully. Absolutely, Mr. Chairman. This GAO report only
dealt with OSC and DOL-VETS. There is a third option which was
not incorporated in the GAO report at all, which is private
attorneys. Under USERRA, a servicemember who believes he has a
discrimination allegation does not have to go to DOL-VETS, does
not have to go to the Office of Special Counsel. They can
retain private counsel. And the figures from the Merit Systems
Protection Board show that the overwhelming majority of
prosecutions by Federal executive employees has been done
either pro se or by private counsel like myself. So the
snapshot that GAO is taking is of a fraction of the overall
USERRA violation cases in the Federal sector.
Chairman Akaka. Well, I want to thank you so much for
traveling here and joining us and providing your testimony and
your responses to our questions. I want to wish you well on
your deployment and thank you so much for your service to our
country.
Mr. Tully. Thank you, Mr. Chairman.
Chairman Akaka. Thank you so much, everyone, for being here
and being a part of this hearing.
This hearing is adjourned.
[Whereupon, at 11:08 a.m., the Committee was adjourned.]
A P P E N D I X
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Prepared Statement of Philip Pope, Deputy Executive Director, National
Committee for Employer Support of the Guard and Reserve
Phil Pope became the Deputy Executive Director, National Committee
for Employer Support of the Guard and Reserve in January 2005. Phil
came to NCESGR after serving over 33 years in the United States Army.
He holds undergraduate and graduate degrees from Auburn University and
a master's degree from the National Defense University.
He entered the Army in 1971 as a private and served as a rifleman,
90mm recoilless rifle gunner, and squad leader. In 1977, as a sergeant,
he entered Officer Candidate School from the North Carolina Army
National Guard and was commissioned a Lieutenant of Infantry in 1978.
Mr. Pope's assignments include tours in the United States, Europe,
and Asia. He commanded Company B, 3d Battalion, and 11th Infantry, in
the 5th Infantry Division, at Fort Polk, Louisiana, from May 1981 to
December 1982. From 1986 to 1989, he served as a Tactical Officer at
the United States Military Academy, West Point, New York. In 1990, he
was assigned to the Office of the Deputy Chief of Staff, Operations,
United States Army Europe (USAREUR), where he served as an Arms Control
Officer. During Operations Desert Shield and Desert Storm, he served as
the Operations Officer (S3) for the 7th Battalion, 6th Infantry, 1st
Armored Division. After Desert Storm, he returned to Germany and served
as an Operations Officer in USAREUR Headquarters. In 1992, Mr. Pope was
assigned as the Operations Officer (S3) for the 1st Battalion, 6th
Infantry, 3d Infantry Division. Upon completion of his assignment in
Germany, Mr. Pope assumed the duties as Chief, Regional Training Team,
1st Brigade, 78th Division (Exercise) at Fort Dix, New Jersey. From
1994 to 1996, he commanded the 1st Battalion, 9th Infantry, 2d Infantry
Division at Camp Hovey, Korea. In 1998, He returned to Europe, where he
served as the Deputy Chief of Staff, Operations (G3), 1st Infantry
Division, and as the Assistant Deputy Chief of Staff, Operations (DG3)
V Corps. From August 2000 through August 2002 he was the Garrison
Commander at Fort Riley, Kansas. Mr. Pope has served two tours on the
Army Staff working on the G-3 staff and serving as the Legislative
Assistant to the Secretary of the Army. His last assignment was as the
Senior Military Assistant to the Assistant Secretary of Defense,
Reserve Affairs.
Mr. Pope is a graduate of the Infantry Officer Advanced Course, the
Command and General Staff College, and the National War College. His
awards and decorations include the Defense Superior Service Medal,
Legion of Merit with 2 Oak Leaf Clusters, the Bronze Star with ``V''
Device and Oak Leaf Cluster, the Meritorious Service Medal with Silver
Oak Leaf, the Combat Infantryman's Badge, Ranger Tab, and the
Parachutist Badge. Mr. Pope also is a recipient of the Order of Saint
Maurice and a 2002 inductee in the Army Officer Candidate School Hall
of Fame.
Chairman Akaka and Members of the Committee: thank you for the
invitation to offer my perspective on issues relating to the Uniformed
Services Employment and Reemployment Rights Act (USERRA) program. Your
invitation letter asked me to address the findings set forth in the
report issued by the Government Accountability Office (GAO) on July 20,
2007, entitled ``Improved Quality Controls Needed over Servicemembers'
Employment Rights Claims at DOL'' (GAO-07-907). This report looked at
the results of a demonstration project which authorized the Office of
Special Counsel, rather than the Department of Labor, to receive and
investigate certain USERRA claims. You asked us to provide our view on
what might be learned from an extension of the demonstration project
and the merits of conducting a follow-up review. I will give you my
agency's position on that report.
As you know, the Uniformed Services Employment and Reemployment
Rights Act of 1994 protects the employment and reemployment rights of
Federal and non-Federal employees who leave their employment to perform
military service. The role of informing servicemembers and employers
about this law, and of enforcing it fall to several different
government organizations.
Employer Support of the Guard and Reserve (ESGR) is a Department of
Defense organization which operates a proactive program directed at
U.S. employers, employees, and communities that ensures understanding
and appreciation of the role of the National Guard and Reserve in the
context of the DOD Total Force Policy. We do this by recognizing
outstanding support, increasing awareness of the law, and resolving
conflicts through informal mediation.
Gaining and maintaining employer support requires a strong network
comprised of both military and civilian-employer leaders that is
capable of providing communication, education and exchange of
information. ESGR works with the Reserve component leadership from each
service, appropriate government organizations such as the Department of
Labor's Veterans' Employment and Training Service (DOL-VETS), and the
Small Business Administration, and industry associations such as the
Chamber of Commerce and others, to create a broad-based, nationwide
support for our troops.
It is important to note that ESGR is not an enforcement agency, and
we do not have statutory authority to offer formal legal counsel or to
participate in any formal investigative or litigation process. Our part
in the USERRA issue is to inform and educate our customers--
servicemembers and their civilian employers--regarding their rights and
responsibilities under the USERRA statute, and to also provide an
informal mediation service. We have over 1,000 trained volunteer
ombudsmen throughout the country and a national call center in
Arlington, Virginia, to provide this service. Our call center received
over 13,000 requests for assistance during FY07. Of those requests,
10,742 were informational in nature, that is, they were sufficiently
resolved by providing information about the law. The remaining 2,374
were assigned as cases to our ombudsmen. Through a Memorandum of
Agreement (MoA) between ESGR and DOL-VETS, ESGR refers to DOL-VETS any
cases we are unable to successfully mediate within 14 days. During
FY07, ESGR referred 416 cases to DOL-VETS. It should be further noted
that the ESGR mediation process is now covered by the Administrative
Dispute Resolution Act of 1996. This statute is fairly restrictive
regarding the protection of privacy for all parties involved in the
dispute. Thus, even for cases ESGR refers to the DOL-VETS under our
MoA, ESGR is unable to pass on any case information exchanged between
claimants and ESGR ombudsmen without the written consent of all parties
involved in the mediation.
ESGR's mandate ends at this point in the USERRA resolution process.
As I understand it, absent the mandated demonstration project between
DOL-VETS and Office of Special Counsel (OSC), DOL investigates and
attempts to resolve claims filed by servicemembers, and if not
successful, DOL informs the Federal claimants that they may request to
have their claims referred to the OSC, and informs non-Federal
claimants that they may engage the Department of Justice. Of course,
all parties reserve the right to engage private counsel at any time.
The report from the GAO concerned the specific investigation
process for Federal claimants, that is, servicemembers who are
employees of, prior employees of, and applicants to Federal executive
agencies. Under the demonstration project, the DOL and OSC essentially
divided Federal sector USERRA claimants. The investigative and
administrative responsibilities for the Federal sector claims that
stayed with DOL remained the same, while cases assigned to OSC under
the project were investigated and administered by OSC.
You asked us to provide our view on what might be learned from an
extension of the demonstration project.
As I stated earlier, ESGR's role is primarily to inform and educate
servicemembers and their employers regarding their rights and
responsibilities under USERRA, and to offer informal mediation to both.
ESGR does not have any statutory authority to investigate or litigate
USERRA complaints, nor do we differentiate between Federal and non-
Federal claimants. As such, our primary interest in this demonstration
project was to gain further understanding of the investigative process
so we could inform our customers, and to see if either of the two
models used for processing claims--a local process by DOL-VETS offices
throughout the country or a centralized, national process by the OSC--
was more effective in providing resolution.
Based on the DOL agreement with the GAO's findings, I believe the
demonstration project was a success and all agencies involved in the
USERRA resolution process will gain further efficiencies by
incorporating the GAO recommendations.
We also continue to believe that the original USERRA process is the
process that will continue to best serve the interests of
servicemembers, whereby the Department of Defense, through the ESGR
organization, provides informal mediation, and the Department of Labor
continues to have the statutory authority to investigate USERRA claims.
The ESGR and DOL will, of course, continue to collaborate to the
fullest extent possible to ensure the speediest and most effective
resolution of USERRA challenges.
For our part, ESGR will continue its mission to gain and maintain
employer support by recognizing outstanding support, increasing
awareness of the law, and resolving conflicts through informal
mediation, and by cooperating to the fullest extent allowable with the
Department of Labor.
I hope that I have been able to clarify the role played by the
Employer Support of the Guard and Reserve in helping to explain, and
where applicable, mediate, issues involving the Uniformed Services
Employment and Reemployment Rights Act.
Thank you.
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