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entitled 'Servicemember Reemployment: Agencies Are Generally Timely in
Processing Redress Complaints, but Improvements Needed in Maintaining
Data and Reporting' which was released on October 22, 2010.
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Report to Congressional Committees:
United States Government Accountability Office:
GAO:
October 2010:
Servicemember Reemployment:
Agencies Are Generally Timely in Processing Redress Complaints, but
Improvements Needed in Maintaining Data and Reporting:
GAO-11-55:
GAO Highlights:
Highlights of GAO-11-55, a report to congressional committees.
Why GAO Did This Study:
The Uniformed Services Employment and Reemployment Rights Act of 1994
(USERRA) protects the employment and reemployment rights of
individuals who leave their employment to perform uniformed service.
Concerned with the timeliness of USERRA complaint processing and data
reliability of agency reports, Congress imposed timeliness
requirements for the Department of Labor (DOL), Department of Justice
(DOJ), and Office of Special Counsel (OSC) under the Veterans'
Benefits Improvement Act of 2008 (VBIA 2008) and required agencies to
submit quarterly reports to Congress on the extent of their compliance
with the requirements. As required by VBIA, this report assesses
whether the agencies (1) met VBIA timeliness requirements for USERRA
complaint processing, and (2) submitted reliable and timely quarterly
reports. GAO analyzed data in each agency’s USERRA database, and the
extent to which those data were consistent with the quarterly reports.
What GAO Found:
DOL, DOJ, and OSC generally were timely in meeting VBIA 2008 deadlines
to process complaints, but issues remain regarding notification of
rights. Under VBIA 2008, DOL must complete its investigation within 90
days of receiving a complaint. If the complaint is not resolved and
the servicemember requests to have the complaint referred, DOL must
send the case to DOJ (if against a nonfederal employer) or OSC (if
against a federal employer) within 60 days of receiving the request
for referral. Within 60 days of receiving the case from DOL, DOJ, and
OSC must make a decision on whether to represent the servicemember.
Any of the three agencies may seek consent to extend the applicable
deadline. GAO’s analysis showed that DOL, DOJ, and OSC generally met
the original or extended deadlines to process complaints. Although DOL
does not maintain data in its USERRA database on notifying
servicemembers of their USERRA complaint processing rights within 5
days of receiving the complaint, GAO estimated that in about 7 percent
of the cases, DOL did not document notification of rights. Because
VBIA 2008 does not require DOL to report on this requirement and DOL
does not maintain and monitor such data, Congress and DOL cannot be
assured that all servicemembers are adequately being informed of their
USERRA process rights in accordance with VBIA 2008.
According to DOJ, the 60-day statutory deadline does not apply to
state employer cases. GAO’s analysis showed that 6 of 12 cases against
state employers took more than 60 days to process. Comparatively, 23
of 189 cases against private or local government employers exceeded
the 60-day deadline. Therefore, servicemembers who are employed by
state governments may not be receiving the same treatment in terms of
timeliness that other servicemembers are receiving under USERRA. In
addition, GAO’s analysis showed that in 6 of 13 cases where the
servicemember was involved in settlement negotiations and DOJ declined
representation, DOJ notified the servicemember of its decision but
continued to aid the parties with facilitating a settlement. VBIA 2008
does not require agencies to report on their time spent after making a
decision on representation.
For DOL, DOJ, and OSC, the data contained in the quarterly reports
during the time of our review were generally consistent with our
analysis. However, the three agencies did not use the same criteria
for including the number of cases that exceeded or met the statutory
deadline in their quarterly reports. DOL and DOJ were consistently
late in submitting quarterly reports to Congress, by as much as 46
days for DOL and by as much as 40 days for DOJ. DOL does not always
correct errors in its USERRA database after preparing its quarterly
reports and therefore cannot ensure it has accurate, readily available
data to monitor its performance in meeting USERRA requirements. DOJ
does not have a standard, repeatable process to input USERRA data and
produce its quarterly reports.
What GAO Recommends:
GAO recommends that the three agencies use consistent reporting
criteria and that the Attorney General and Secretary of Labor improve
maintenance of data. Congress should consider amending USERRA to apply
VBIA 2008 deadlines to state cases and add reporting requirements. The
agencies generally agreed with GAO’s recommendations but expressed
concern over some of the matters for congressional consideration.
View [hyperlink, http://www.gao.gov/products/GAO-11-55] or key
components. For more information, contact Laurie E. Ekstrand at
(202)512-6806 or ekstrandl@gao.gov.
[End of section]
Contents:
Letter:
Background:
DOL, DOJ, and OSC Were Generally Timely in Meeting VBIA Deadlines, but
Issues Remain Regarding Notification of Rights by DOL:
DOL's and DOJ's Quarterly Reports Have Timeliness and Data Quality
Issues; the Three Agencies Lack Uniform Criteria in Reporting Cases:
Conclusions:
Recommendations for Executive Action:
Matters for Congressional Consideration:
Agency Comments and Our Evaluation:
Appendix I: Objectives, Scope, and Methodology:
Objective 1: Assess the Extent to Which DOL, OSC, and DOJ Met VBIA's
Complaint Processing Timeliness Requirements between October 10, 2008,
and December 31, 2009:
Objective 2: Assess the Extent to Which DOL, OSC, and DOJ Have
Submitted Timely and Reliable Quarterly Reports to Congress as
Required by VBIA 2008:
Appendix II: Comments from the Department of Labor:
Appendix III: Comments from the Department of Justice:
Appendix IV: Comments from the Office of Special Counsel:
Appendix V: GAO Contact and Staff Acknowledgments:
Related GAO Products:
Table:
Table 1: GAO Analysis of Timeliness of DOL, DOJ, and OSC Quarterly
Reports of USERRA cases, October 10, 2008, through December 31, 2009:
Figures:
Figure 1: Formal USERRA Complaint Process Using Federal Assistance and
VBIA 2008 Deadlines:
Figure 2: DOL's Compliance with the 90-Day Investigation Deadline for
Complaints Received from October 10, 2008, to December 31, 2009:
Figure 3: DOL's Compliance with the 60-Day Deadline for Referrals
Requested from October 10, 2008, to December 31, 2009:
Figure 4: DOJ's Compliance with the 60-Day Deadline for Referrals
Received from October 10, 2008, to December 31, 2009:
Figure 5: OSC's Compliance with the 60-Day Deadline for Referrals
Received from October 10, 2008, to December 31, 2009:
[End of section]
United States Government Accountability Office:
Washington, DC 20548:
October 22, 2010:
The Honorable Daniel K. Akaka:
Chairman:
The Honorable Richard Burr:
Ranking Member:
Committee on Veterans' Affairs:
United States Senate:
The Honorable Bob Filner:
Chairman:
The Honorable Steve Buyer:
Ranking Member:
Committee on Veterans' Affairs:
House of Representatives:
In the wake of the ongoing conflicts in Iraq and Afghanistan,
thousands of current and former military servicemembers are undergoing
a transition between their federal duties and their civilian
employment. Congress enacted the Uniformed Services Employment and
Reemployment Rights Act of 1994 (USERRA)[Footnote 1] to protect the
employment and reemployment rights of federal and nonfederal employees
when they leave their employment to perform military or other
uniformed service.[Footnote 2] Among other rights, servicemembers who
meet the statutory requirements are entitled to reinstatement to the
positions they would have held if they had never left their employment
or to positions of like seniority, status, and pay. USERRA was enacted
as a means to encourage noncareer service in the uniformed services by
reducing the disruption that servicemembers often face when returning
to the civilian workforce and to prohibit discrimination against
individuals based upon their uniformed service.
Under USERRA, an employee or applicant for employment who believes
that his or her USERRA rights have been violated may file a complaint
with the Department of Labor's (DOL) Veterans' Employment and Training
Service (VETS), which is the entity that investigates and attempts to
resolve the complaint. If DOL's VETS cannot resolve the complaint, DOL
is to inform the complainant of the right to request to have his or
her complaint referred to the Department of Justice (DOJ) or the
Office of Special Counsel (OSC). A complaint is referred to DOJ if it
involves state or private employers or to OSC if it involves a federal
executive branch agency. If the servicemember elects to have the
complaint referred, DOJ and OSC then determine whether to initiate
legal action against the employer.[Footnote 3]
We have previously reported on problems with the timeliness of agency
complaint processing and the reliability of data contained in DOL's
USERRA annual report to Congress.[Footnote 4] To address concerns
about timeliness and data reliability, Congress imposed timeliness
requirements for DOL, DOJ, and OSC USERRA complaint processing as part
of the Veterans' Benefits Improvement Act of 2008 (VBIA 2008).
[Footnote 5] Under VBIA 2008, within 5 days of receiving a complaint,
DOL must notify the complainant of his or her USERRA process rights
and, within 90 days of receiving a complaint, complete its
investigation. If the complaint is not resolved and the servicemember
requests to have the complaint referred, DOL must send the case to DOJ
(if against a nonfederal employer) or OSC (if against a federal
employer) within 60 days of receiving the request for referral. Within
60 days of receiving the case from DOL, DOJ and OSC must make a
decision on whether to represent the servicemember. Any of the three
agencies may seek consent to extend the applicable deadline. The act
also requires DOJ, DOL, and OSC to submit quarterly reports to
Congress on the extent to which these agencies are meeting the
timeliness requirements and directs us to assess, as of the time of
our review, the extent to which DOJ, DOL, and OSC (1) have met the
USERRA complaint processing timeliness requirements and (2) have
submitted reliable and timely quarterly reports to Congress as
required by VBIA 2008.
To address our first objective, we analyzed data from DOJ's, DOL's,
and OSC's USERRA databases on complaints filed and referrals requested
and received from October 10, 2008--the effective date of VBIA 2008--
to December 31, 2009. In order to meet our mandated reporting
deadline, we established a cutoff date of February 28, 2010, and
analyzed each agency's data as of that date. We assessed the
reliability of the agencies' USERRA databases by comparing a random
sample of DOL and DOJ case files and all OSC case files during the
period of our review against the data in the databases. We found the
data from each agency's USERRA databases to be sufficiently reliable
to use in this report. We then used each agency's data to determine
the extent that each agency met the timeliness requirements and the
average amount of time it took for each agency to meet the respective
deadlines. We also interviewed relevant agency officials. To assess
the reliability of the quarterly reports, we used each agency's data
and attempted to recreate each agency's quarterly reports covering the
periods of October 10, 2008, through December 31, 2009. We also
interviewed relevant agency officials and reviewed each agency's
policies and procedures for collecting, maintaining, and storing the
data and for producing the reports. To determine the timeliness of
each agency's submission of the quarterly reports to Congress, we
reviewed the transmittal letters and other evidence of submission to
determine whether the quarterly reports were submitted to Congress
within 30 days after the end of the quarter as required by VBIA 2008
and interviewed agency officials concerning communication with
Congress on their submissions.
We conducted this performance audit from January 2010 through October
2010 in accordance with generally accepted government auditing
standards. Those standards require that we plan and perform the audit
to obtain sufficient, appropriate evidence to provide a reasonable
basis for our findings and conclusions based on our audit objectives.
We believe that the evidence obtained provides a reasonable basis for
our findings and conclusions based on our audit objectives.
Background:
USERRA applies to public and private employers in the United States,
regardless of size, and includes federal, state, and local
governments, as well as for-profit and not-for-profit private sector
firms. In addition to the reemployment provisions, USERRA also
prohibits discrimination in employment against individuals because of
their service, obligation to perform service, or membership or
application for membership in the uniformed services.[Footnote 6]
Generally, servicemembers who were absent from their civilian job by
reason of their service are entitled to the reemployment rights and
benefits provided by USERRA if they provided their employer with
advance notice of their service requirement when possible, served
fewer than 5 years of cumulative uniformed service with respect to
that employer, left service under honorable conditions, and reported
back to work or applied for reemployment in a timely manner.
Servicemembers who meet their USERRA requirements are entitled to:
* prompt reinstatement to the positions they would have held if they
had never left their employment or to positions of like seniority,
status, and pay;
* continued health coverage for a designated period of time while
absent from their employers and immediate reinstatement of health
coverage upon return;
* training, as needed, to requalify for their jobs;
* periods of protection against discharge (without cause) based on the
length of service; and:
* nonseniority benefits that are available to other employees who are
on leaves of absence.
If a servicemember believes that his or her USERRA rights have been
violated, the servicemember may seek formal assistance from federal
agencies in resolving the complaint.[Footnote 7] Figure 1 below shows
the formal USERRA complaint process using federal assistance and the
deadlines imposed by VBIA 2008.
Figure 1: Formal USERRA Complaint Process Using Federal Assistance and
VBIA 2008 Deadlines:
[Refer to PDF for image: process data and background photos]
A servicemember seeking to resolve an alleged USERRA violation files a
complaint with DOL.
DOL:
* Within 5 days after receiving the complaint, DOL is required to
notify the servicemember in writing of his or her USERRA complaint
process rights.
* Within 90 days after receiving the complaint, DOL must complete the
investigation and attempt to resolve the complaint (or seek consent
from the servicemember for an extension of the deadline).
* If DOL cannot resolve the complaint, the servicemember may request
to have the complaint referred to DOJ (nonfederal) or OSC (federal).
* If the servicemember requests to have the complaint referred, within
60 days after receiving the request, DOL must refer the complaint to
DOJ or OSC (or seek consent from the servicemember for an extension of
the deadline).
DOJ (nonfederal employees’ claims)[A]:
Within 60 days after receiving the memorandum of referral from DOL,
DOJ must make a decision whether to represent the servicemember in
court and notify service-member of decision (or seek consent from the
servicemember for an extension of the deadline).
OSC (federal employees’ claims):
Within 60 days after receiving the memorandum of referral from DOL,
OSC must make a decision whether to represent the servicemember before
the Merit Systems Protection Board and notify servicemember of
decision (or seek consent from the servicemember for an extension of
the deadline).
Sources: GAO analysis of VBIA 2008 (information); DOD (photos).
[A] According to DOJ, state employee complaints are not covered under
the 60-day statutory deadline.
[End of figure]
In addition, VBIA 2008 requires DOJ, DOL, and OSC to submit quarterly
reports to Congress on their compliance with the deadlines.[Footnote
8] The reports cover USERRA activities for the previous quarter and
are due within 30 days of the end of that quarter.
To implement VBIA 2008 reporting requirements, each of the agencies
updated their existing databases used to both maintain data on USERRA
cases and produce the required reports. DOL produces its quarterly
USERRA reports by extracting data contained in its USERRA Information
Management System, a Web-based system managed by VETS that includes
critical events in the history of the case, case resolution,
complainant and employer names, and dates. DOJ's Employment Litigation
Section of the Civil Rights Division, maintains data on the extent to
which it meets VBIA 2008 deadlines in a WordPerfect log, which is an
ancillary system to the Civil Rights Division's primary data system.
[Footnote 9] OSC uses OSC 2000, which was designed to capture and
record data from the initial filing of a complaint until the closure
and archiving of the case file and allows for queries that create a
number of management and workload reports.
DOL, DOJ, and OSC Were Generally Timely in Meeting VBIA Deadlines, but
Issues Remain Regarding Notification of Rights by DOL:
DOL Has Generally Met VBIA and Extended Deadlines, but Some
Servicemembers who Filed Hard Copy Complaints Were Not Notified of
Rights:
Our analysis showed that in the 1,663 investigations included in our
review, DOL generally met the original deadline or a new deadline
agreed to by the servicemember. For investigations, DOL met the
original 90-day deadline or an extended deadline in about 99 percent
of cases. During the period covered by our review, DOL took on average
about 52 days to complete an investigation. Figure 2 shows the extent
to which DOL met initial and extended investigation deadlines.
Figure 2: DOL's Compliance with the 90-Day Investigation Deadline for
Complaints Received from October 10, 2008, to December 31, 2009:
[Refer to PDF for image: pie-chart and subchart]
Met 90-day deadline: 87% (1,442);
Exceeded 90-day deadline: 13% (221):
- Met extended deadline: 12% (198);
- Exceeded extended deadline: 1% (15);
- No agreed-upon extension: less than 1% (8).
Source: GAO analysis of DOL data.
Note: This figure represents investigations opened from October 10,
2008, to December 31, 2009, and closed as of February 28, 2010.
[End of figure]
When DOL exceeded the deadline, it generally negotiated an extension
with the servicemember to complete the investigation and met those
extended deadlines. In the 213 cases where DOL asked for and received
the complainant's consent for an extension, DOL met the last extended
deadline in approximately 93 percent (198) of the investigations. For
cases that exceeded the deadline, the average processing time was
approximately 138 days. The longest investigation took nearly a year
(357 days) to complete. According to DOL, this case, for which the
Pension Benefit Guaranty Corporation (PBGC) was the trustee, involved
a servicemember who returned to employment after his pension plan had
been terminated and was affected by a change in PBGC rules under the
Employee Retirement Income Security Act (ERISA) of 1974.[Footnote 10]
As of February 28, 2010, 68 cases subject to our review remained open
(i.e., their investigation had not yet been completed). For
investigations that remained open, 32 of 68 cases had been open for
more than 90 days. The average age of those still open was
approximately 104 days.[Footnote 11] As of February 28, 2010, the
investigation that had been open the longest was 285 days. According
to DOL, during the course of the 285 days, the investigation had been
closed for 45 days due to the complainant's lack of response to the
investigator's inquiries. After DOL reopened the investigation, the
parties reached a settlement, but DOL kept the case open, in
accordance with DOL policy, until all the terms of the settlement had
been met. To assess the progress of investigations taking more than 90
days, VETS officials said that they produce a monthly management
report, which helps them identify and eliminate any barriers to
resolution. The report is also reviewed to identify any recurring
issues that need to be resolved through revised procedures or enhanced
training.
When servicemembers requested a referral, DOL met either the original
60-day deadline to send the case to DOJ or OSC or an extended deadline
in more than 99 percent of the 205 referrals in our review. During the
period covered by our review, DOL took, on average, about 67 days to
send the memorandum of referral to DOJ or OSC. Figure 3 shows the
extent to which DOL met initial and extended referral deadlines.
Figure 3: DOL's Compliance with the 60-Day Deadline for Referrals
Requested from October 10, 2008, to December 31, 2009:
[Refer to PDF for image: pie-chart and subchart]
Met 60-day deadline: 64% (131);
Exceeded 90-day deadline: 36% (74):
- Met extended deadline: 36% (73);
- Exceeded extended deadline: less than 1% (1);
- No agreed-upon extension: 0% (0).
Source: GAO analysis of DOL data.
Note: This figure represents those referrals requested from October
10, 2008, to December 31, 2009, and closed as of February 28, 2010.
[End of figure]
When DOL exceeded the deadline on referral cases, it generally
negotiated an extension with the servicemember in order to finish
processing the referral and send it to DOJ or OSC. Where DOL asked for
and received the complainant's consent for an extension of time, DOL
met the last extended referral deadline in nearly all cases--73 of 74
cases. For the 74 cases that exceeded the deadline, the average
processing time was about 113 days, with the longest referral taking
348 days to process. According to DOL, the complainant in this case
had been injured in service and was not medically ready to return to
work at the time of the referral. Once the complainant became
medically stable, DOL could determine whether there was an appropriate
reemployment position to which the complainant could return, and the
case was ultimately resolved.
As of February 28, 2010, 34 referral cases subject to our review
remained open and were still being processed by DOL. Of the referrals
still open as of February 28, 2010, 13 of 34 cases had been open for
more than 60 days.[Footnote 12] The average age for those still open
was 71 days. The referral open the longest had an age of 324 days.
According to DOL, it was difficult to obtain the employer's compliance
with the terms of the settlement agreement, and DOL kept the case open
until the employer complied. To assess the progress of referral
processing, DOL also produces a monthly management report on referrals
to ensure that established procedures are being followed and that, if
the referral process will exceed 60 days, DOL will negotiate for and
document an extension of time.
DOL Notified Servicemembers of Rights for all Electronically Filed
Complaints but Did Not Notify Some That Filed in Hard Copy:
To implement the VBIA 2008 requirement to notify servicemembers of
their USERRA complaint process rights within 5 days of receiving a
complaint, DOL created a standard notification letter that advises
servicemembers of their right to request to have their case referred
to DOJ or OSC for further review, or that the servicemember can file a
complaint using private counsel. For complaints filed electronically,
DOL updated its USERRA database to automatically generate the standard
notification in an E-mail and send it directly to servicemembers. For
complaints filed in hard copy, the assigned DOL employee is to send
the servicemember a copy of the notification letter via E-mail or
mail. To ensure that the notifications are sent to the servicemember,
DOL requires the investigator to make a notation in the hard copy case
file indicating that the notification was sent and on what date.
However, DOL does not record this information in its USERRA database
and does not track the extent to which it complies with the
notification requirement. VBIA 2008 does not require DOL to report on
the extent to which it complies with this notification requirement.
We have previously reported on the importance of ensuring that
servicemembers are appropriately notified of their rights. In 2007, we
reported that DOL did not consistently notify complainants of their
rights at the end of the investigation and recommended that DOL update
its operations manual and augment its training.[Footnote 13] Since
2007, DOL has taken actions to improve its process for notifying
servicemembers of their rights at the end of the investigation.
However, because VBIA 2008 does not require DOL to report on the
extent to which it meets the new requirement to notify servicemembers
of their rights in writing within 5 days of receiving the complaint,
and DOL does not maintain and monitor such data, Congress and DOL
cannot be assured that servicemembers who file complaints are
adequately being informed of their USERRA process rights in accordance
with VBIA 2008.
Although DOL does not maintain data in its USERRA database on
notifications of USERRA complaint process rights, we were able to
estimate, based on our review of a random sample of case files, the
extent to which DOL notified servicemembers of their USERRA complaint
process rights within 5 days. Specifically, we estimated that in about
85 percent of cases, DOL notified complainants of their rights within
5 days. In about 9 percent of the cases, we estimated that DOL
notified complainants late. Of the complaints in our sample where DOL
exceeded the 5-day deadline, DOL notified complainants of their rights
within 12 days. In about 7 percent of the cases, DOL did not have
evidence of notification of rights.[Footnote 14] In our sample, where
we found no evidence of notification, servicemembers had filed their
complaints in hard copy. About one-third of the cases in our sample
were filed in hard copy. Moreover, where servicemembers filed
complaints electronically, we found evidence in all cases that DOL
notified the servicemembers of their complaint process rights.
DOL is planning to implement a new process for handling hard copy
complaints, which, according to DOL, would help to ensure that all
servicemembers are notified of their rights in a timely manner.
According to DOL, all hard copy filed complaints will be submitted
first to the USERRA Regional Lead Center. The Lead Center will enter
the hard copy complaints into the electronic complaint system, and the
complaint will then be treated in the same way as if it had been filed
electronically. This includes immediately notifying the complainants
that the complaint has been received, providing them with appropriate
VETS contact information, notifying complainants of their rights,
assigning the case to the appropriate VETS office, and keeping records
of all those actions. This new procedure requires a change in the
complaint form, which is pending approval from the Office of
Management and Budget. DOL officials plan to implement the new process
as soon as the new complaint form is approved, which DOL officials
expect will occur in the fall of 2010.
DOJ Generally Met VBIA and Extended Deadlines, but Does Not Apply VBIA
Deadlines to State Employer Cases or Report Time Facilitating
Settlement:
Our analysis shows that in the 201 cases included in our review, DOJ
met the original deadline or an extended deadline in about 96 percent
of all cases. According to DOJ, complaints against state employers are
not covered under the 60-day deadline. However, because DOJ maintains
data on the extent to which it met the 60-day deadline in state
employer cases and reports on these cases in its quarterly reports, we
have included these cases in our analysis. During the period covered
by our review, DOJ took on average about 35 days to make a decision on
representation (or initiation of legal action) and to notify the
complainant of its decision. Figure 4 shows the extent to which DOJ
met initial and extended referral deadlines.
Figure 4: DOJ's Compliance with the 60-Day Deadline for Referrals
Received from October 10, 2008, to December 31, 2009:
[Refer to PDF for image: pie-chart and subchart]
Met 60-day deadline: 86% (172);
Exceeded 90-day deadline: 14% (29):
- Met extended deadline: 10% (21);
- Exceeded extended deadline: 0% (0);
- No agreed-upon extension: 4% (8).
Source: GAO analysis of DOL data.
Notes: This figure represents those referrals received from October
10, 2008, to December 31, 2009, and closed as of February 28, 2010.
Six of the eight cases where there was no agreed-upon extension were
against state employers. In these six cases, according to DOJ, the 60-
day deadline does not apply, and it does not seek agreement from
complainants for an extension of such a deadline. In the two cases
against private employers where there was no agreed-upon extension,
DOJ notified complainants of its decision on representation within 2
days after the 60-day deadline.
[End of figure]
For the 29 cases that exceeded the 60-day deadline, the average
processing time was 101 days. The longest case took 342 days to reach
a decision on representation. According to DOJ, the servicemember in
this case was deployed overseas, and because DOJ wanted to conduct an
in-person interview with him prior to making a decision on
representation, DOJ obtained an extension until his return. Three
other cases exceeded the deadline by 60 days or more. Of those cases,
one involved a servicemember with an overseas deployment, another was
delayed due to settlement negotiations, and the third required DOJ to
collect additional information to make a decision on representation.
Of those cases that exceeded the deadline, DOJ sought an extension in
21 of 29 cases. For cases where DOJ asked for and received the
servicemember's consent for an extension of time, DOJ met the last
negotiated deadline in all of the cases. As of February 28, 2010, four
cases included in our review remained open and were still being
processed by DOJ. Three of these cases had been open for more than 60
days, with the longest open for 89 days.[Footnote 15]
DOJ Does Not Apply Statutory Deadline Requirements to Cases against
State Employers:
Our analysis showed that 6 of 12 cases against state employers took
more than 60 days to process. Comparatively, 23 of 189 cases against
private or local government employers exceeded the 60-day deadline.
Therefore, servicemembers who are employed by state governments may
not be receiving the same treatment as other servicemembers in terms
of the timeliness of USERRA complaint processing.
According to DOJ officials, the statutory deadline does not apply in
cases against a state employer. Specifically, DOJ officials stated
that the statutory deadline only applies where the Attorney General
makes a decision whether to "appear on behalf of, and act as attorney
for" the servicemember.[Footnote 16] This provision only applies to
cases against private employers because in those cases, DOJ represents
the servicemember. For cases against state employers, however, DOJ
must bring cases on behalf of the United States as the plaintiff.
[Footnote 17] Since in these instances DOJ "appears on behalf of and
acts as attorney for" the United States--not the servicemember--the
statutory deadline does not apply, according to DOJ. Nevertheless, DOJ
maintains data on the extent to which it processes these cases within
60 days and includes information on these cases in the narrative
section of its quarterly reports to Congress.
DOJ similarly states that the statutory requirement to seek consent
for an extension of the 60-day deadline does not apply to situations
involving state employers since DOJ does not represent the individual
servicemember, but is instead representing the interests of the United
States as the plaintiff, or real party in interest. DOJ officials said
that to require DOJ to seek such consent from a servicemember in
situations involving state employers would create the appearance that
the servicemember is the real party in interest and that DOJ is not
representing the U.S. government, but the servicemember. According to
DOJ, this could foster Eleventh Amendment challenges by states who
would argue that it is the servicemember, not the United States, that
is the plaintiff or real party in interest and that such a suit runs
afoul of the Eleventh Amendment in the same way that a private suit
has when brought by a servicemember against a state employer.[Footnote
18]
DOJ Did Not Report on Time Facilitating Settlement:
Our analysis showed that in 6 of 13 private employer cases where the
servicemember was involved in settlement negotiations and DOJ declined
representation, DOJ notified the servicemember of its decision to
decline representation but continued to aid the parties with
facilitating a settlement.[Footnote 19] According to DOJ officials,
once it has declined representation, DOJ no longer counts the time it
spends working on the case in measuring compliance with the statutory
time frame. Consequently, DOJ does not report this time following the
decision on representation. DOJ officials said that for some cases
they made the decision not to offer representation, but continued to
aid parties in facilitating settlement because they thought it was in
the best interest of the servicemember.[Footnote 20] VBIA 2008
requirements were enacted in part due to congressional recognition of
servicemember concerns over the length of time it takes for USERRA
complaints to be resolved. Because VBIA 2008 does not require the
agencies to report time they spend on a case after declining
representation, Congress is not getting a full picture of the effort
that DOJ makes on behalf of servicemembers.
OSC Has Generally Met VBIA and Extended Deadlines:
Our analysis showed that in the 45 cases included in our review, OSC
generally met the original deadline or an extended deadline agreed to
by the servicemember. OSC met the original 60-day deadline or an
extended deadline in 42 of 45 cases. During the period covered by our
review, OSC took, on average, about 61 days to make a decision on
representation and to notify the servicemember of its decision. Figure
5 shows the extent to which OSC met initial and extended deadlines.
Figure 5: OSC's Compliance with the 60-Day Deadline for Referrals
Received from October 10, 2008, to December 31, 2009:
[Refer to PDF for image: pie-chart and subchart]
Met 60-day deadline: 87% (39);
Exceeded 90-day deadline: 13% (6):
- Met extended deadline: 7% (3);
- Exceeded extended deadline: 2% (1);
- No agreed-upon extension: 4% (2).
Source: GAO analysis of DOL data.
Note: This figure represents those referrals received from October 10,
2008, to December 31, 2009, and closed as of February 28, 2010.
[End of figure]
For cases where OSC asked for and received the complainant's consent
for an extension of time to make a decision on representation, OSC met
the last extended deadline in three of the four cases. The longest
case, which was delayed because OSC discovered it needed to gather
more information in the case, took 240 days to reach a decision on
representation.[Footnote 21]
DOL's and DOJ's Quarterly Reports Have Timeliness and Data Quality
Issues; the Three Agencies Lack Uniform Criteria in Reporting Cases:
VBIA 2008 requires that DOL, DOJ, and OSC submit quarterly reports to
Congress within 30 days of the end of each quarter. Based on our
review of the transmittal letters for quarterly reports submitted
between October 10, 2008, and December 31, 2009, DOL was late in
submitting all five of its quarterly reports, ranging from 4 to 46
days late. DOJ was late in submitting its quarterly reports in four of
five quarters of our review by a range of 11 to 40 days. During the
period covered by our review, OSC consistently submitted its quarterly
USERRA reports on time or before the statutory deadline, from 1 to 3
days early. Table 1 below shows the extent to which each agency was
timely in submitting its quarterly report to Congress.
Table 1: GAO Analysis of Timeliness of DOL, DOJ, and OSC Quarterly
Reports of USERRA cases, October 10, 2008, through December 31, 2009:
Quarter: First;
Deadline: 01/30/09;
Department of Labor: Date filed: 02/17/09;
Department of Labor: Days early or late (-): -18;
Department of Justice: Date filed: 02/10/09;
Department of Justice: Days early or late (-): -11;
Office of Special Counsel: Date filed: 01/27/09;
Office of Special Counsel: Days early or late (-): 3.
Quarter: Second;
Deadline: 04/30/09;
Department of Labor: Date filed: 05/04/09;
Department of Labor: Days early or late (-): -4;
Department of Justice: Date filed: 04/29/09;
Department of Justice: Days early or late (-): 1;
Office of Special Counsel: Date filed: 04/30/09;
Office of Special Counsel: Days early or late (-): 0.
Quarter: Third;
Deadline: 07/30/09;
Department of Labor: Date filed: 08/04/09;
Department of Labor: Days early or late (-): -5;
Department of Justice: Date filed: 08/11/09;
Department of Justice: Days early or late (-): -12;
Office of Special Counsel: Date filed: 07/30/09;
Office of Special Counsel: Days early or late (-): 0.
Quarter: Fourth;
Deadline: 10/30/09;
Department of Labor: Date filed: 12/15/09;
Department of Labor: Days early or late (-): -46;
Department of Justice: Date filed: 12/03/09;
Department of Justice: Days early or late (-): -34;
Office of Special Counsel: Date filed: 10/29/09;
Office of Special Counsel: Days early or late (-): 1.
Quarter: First;
Deadline: 01/30/10;
Department of Labor: Date filed: 03/15/10;
Department of Labor: Days early or late (-): -44;
Department of Justice: Date filed: 03/11/10;
Department of Justice: Days early or late (-): -40;
Office of Special Counsel: Date filed: 01/29/10;
Office of Special Counsel: Days early or late (-): 1.
Quarter: Agency average;
Department of Labor: Days early or late (-): -23.4;
Department of Justice: Days early or late (-): -19.2;
Office of Special Counsel: Days early or late (-): 1.
Source: GAO analysis of DOL, DOJ, and OSC quarterly report transmittal
letters and other submission documentation.
[End of table]
DOL officials said that to ensure data accuracy and avoid having to
regularly adjust previously-submitted quarterly reports in future
reports, DOL reserves 2 weeks after the end of each quarter for staff
to finalize database entries on all investigations and referral
actions taken through the last day of that quarter. The quarterly
report is then drafted and reviewed by the responsible officials.
Although recent reports have been late, DOL expects to improve its
timeliness in submitting them as it gains more experience in preparing
these reports. DOL officials said that it had not communicated with
Congress in advance of late submissions.
Officials from DOJ's Civil Rights Division said they typically submit
reports 1 to 2 weeks before the statutory deadline to their Office of
Legislative Affairs (OLA), which has sole responsibility for
communication with Congress. OLA officials said that it takes from 1
week to 1 month for a report to go through OLA's review process before
it can be submitted to Congress. When a report is expected to miss a
deadline, OLA officials said that they do not generally communicate
with members of Congress or their staff.
Agencies' Reports Were Generally Accurate, but Lack Uniformity in
Reporting Data; DOL and DOJ Have Data Quality Issues:
For DOL, DOJ, and OSC, the data contained in the quarterly reports
during the period covered by our review were generally consistent with
our analysis.[Footnote 22] However, the three agencies did not use the
same criteria for including the number of cases that exceeded or met
the statutory deadline in their quarterly reports. Specifically, DOL
and OSC included cases where (1) the applicable statutory deadline
occurred within the quarter, or (2) the deadline occurred in a later
quarter but the agency met its statutory requirement within that
quarter. However, DOJ reports the number of cases that met or exceeded
the deadline only for cases where the deadline occurred within the
quarter. VBIA 2008 requires that data contained in the reports be
categorized in a uniform way. Because the three agencies are not using
the same criteria to determine which cases to include in their
quarterly reports, Congress may not be able to assess trends across
the three agencies.
DOL Data Presented in Quarterly Reports Were Generally Reliable, but
DOL Does Not Always Correct Its Database after Preparing its Reports:
Although the data contained in DOL's quarterly USERRA reports during
the time of our review were generally consistent with our analysis of
data from its USERRA database, DOL's process for identifying and
correcting errors in its quarterly reports accounts for some of the
differences we found.
To prepare its quarterly reports, DOL extracts data on the relevant
cases from its USERRA database and generates two separate lists; one
for investigations, which are subject to a 90-day deadline, and
another for referral requests, which are subject to the 60-day
deadline. After both lists have been sorted and analyzed to produce a
draft report, the lists are reviewed by DOL officials who oversee
investigations and referral processing. From those lists, DOL
identifies cases that exceeded the deadline and then reviews
documentation for these cases to determine if an extension had been
recorded in the file but had not been entered in DOL's USERRA
database. If it identifies such a record, it makes a notation as part
of its analysis, but does not always make a correction in its system
of record--the USERRA database. We identified four referrals where the
USERRA database showed that DOL exceeded the 60-day referral deadline
without an extension, but DOL made a written notation in its analysis
used to produce its quarterly report reflecting consent to an
extension. As of March 1, 2010, the date that DOL extracted the data
for this review, DOL had not updated its database to reflect these
extensions. After we notified DOL that its USERRA database had not
been updated, DOL provided us documentation of consent for extensions
in these four cases and updated its USERRA database to reflect the
extensions.[Footnote 23]
GAO's Standards for Internal Control in the Federal Government require
that agencies establish a system to ensure the accuracy of data that
it processes.[Footnote 24] These standards state that such a system
should employ a variety of control activities to ensure accuracy and
completeness, such as using edit checks in controlling data entry and
performing data validation and editing to identify erroneous data,
among other activities. Because DOL does not consistently make
corrections to the data in its USERRA database, DOL cannot ensure it
has accurate and readily available data to monitor, track, and report
on its performance in meeting VBIA 2008 requirements. A better system
to correct its data could help DOL to ensure that it is accurately
meeting congressional reporting requirements.
DOJ Reports Were Generally Accurate, but DOJ Does Not Have a Reliable
Process for Producing Quarterly Reports:
Although the data contained in DOJ's quarterly reports that we
analyzed were generally consistent with our analysis of the data from
its WordPerfect log, DOJ does not have a standard, repeatable process
to input USERRA data and produce its quarterly reports. DOJ relies on
one individual to enter the data and prepare its quarterly reports. A
supervisory equal opportunity specialist in the Employment Litigation
Section of the Civil Rights Division is responsible for inputting all
the USERRA data necessary for reporting on timeliness into a
WordPerfect log. DOJ does not have any written definition on each data
element in the log. When this employee takes leave, the deputy section
chief serves as the backup to collect the relevant documents, but does
not enter data into the log; the supervisory equal opportunity
specialist enters the data upon return from leave. DOJ officials said
that no other DOJ employee is knowledgeable about operating the
WordPerfect log. Moreover, there is no system to check and ensure that
data are entered correctly. To prepare the reports, the supervisory
equal opportunity specialist manually counts the number of reports to
be included in each category of the report. Although DOJ said that it
uses a WordPerfect formula to calculate when the 60-day deadline
occurs, DOJ does not use standard formulas or queries to generate the
numbers for the reports. Such an approach that requires manual
counting may be susceptible to error. We have previously reported on
the importance of standard, repeatable procedures for producing
reports[Footnote 25]. Moreover, GAO's Standards for Internal Control
in the Federal Government require that agencies establish a system to
ensure the accuracy of data contained in report[Footnote 26]s.
Implementing such a system could help DOJ improve the accuracy of its
reports to Congress.
Conclusions:
Servicemembers who leave their civilian employment to perform military
or other uniformed service need to be assured that the agencies
assigned to assist them when they believe that their USERRA rights
have been violated are processing their complaints in a timely manner.
We found that DOL, DOJ, and OSC generally met initial or extended
complaint processing deadlines. While all three agencies' quarterly
reports to Congress were generally accurate, the agencies did not use
the same criteria for including cases in their quarterly reports.
Moreover, DOL and DOJ were sometimes late in submitting quarterly
reports to Congress and could improve maintenance of data and
reporting on the extent to which they have met statutory deadlines.
Specifically, DOL does not maintain data to monitor the extent to
which it met the requirement to notify servicemembers of their
complaint processing rights within 5 days. Additionally, when DOL
identifies errors in its USERRA database when it prepares its
quarterly reports to Congress, it does not always correct the
database. DOJ does not have a standard, repeatable process to input
USERRA data and process its quarterly reports and lacks data
reliability checks. Addressing these data maintenance and reporting
issues can help agencies ensure that future USERRA quarterly reports
are timely, accurate, and clear.
Recommendations for Executive Action:
We recommend that the Secretary of Labor, Attorney General, and
Special Counsel:
* establish consistent criteria for including cases in their quarterly
USERRA reports to Congress.
We recommend that the Secretary of Labor direct the Assistant
Secretary for the Veterans' Employment and Training Service to:
* ensure that a system is in place to monitor compliance with
notification of rights requirements similar to those used to assess
compliance with other statutory deadlines, including maintaining data
on such compliance;
* develop guidance and oversight mechanisms to ensure that changes are
entered into the USERRA database as the quarterly reporting data are
updated; and:
* establish procedures to ensure that quarterly USERRA reports are
submitted to Congress within 30 days of the end of each quarter, as
required by VBIA 2008.
We recommend that the Attorney General:
* establish a system of internal controls for collecting, maintaining,
processing, and checking reliability of data for the quarterly reports
to Congress; and:
* establish procedures to ensure that quarterly USERRA reports are
submitted to Congress within 30 days of the end of each quarter as
required by VBIA 2008.
Matters for Congressional Consideration:
* To help ensure that servicemembers who file complaints are
adequately being informed of their USERRA complaint process rights in
accordance with VBIA 2008, Congress should consider amending USERRA to
require DOL to report on the extent to which it is notifying
complainants of their USERRA complaint process rights within 5 days of
filing a complaint.
* To help ensure that DOJ handles state cases as expediently as
private employer cases, Congress should consider amending USERRA to
specifically require DOJ to adhere to the same 60-day deadline for
state employer matters that they must adhere to for matters against
private employers.
* To help ensure that servicemembers in state employer cases are kept
apprised of the status of DOJ's decision making without potentially
compromising DOJ's ability to successfully bring suit against state
employers, Congress should consider amending USERRA to require DOJ to
notify these servicemembers of the status of DOJ's efforts.
* To help ensure that Congress is fully apprised of efforts to resolve
a case, Congress should consider amending USERRA to require DOJ and
OSC to report on additional time taken to resolve a matter after they
decline representation.
Agency Comments and Our Evaluation:
We provided a draft of this report to DOL, DOJ, and OSC for review and
comment. In written comments, which are included in appendix II, DOL
agreed with our recommendations and provided additional comments on
the matter for congressional consideration regarding reporting on
notification of rights. Specifically, DOL stated that actions it plans
to take to ensure that servicemembers are notified of their rights
within 5 days will be sufficient and DOL will notify Congress and GAO
of its progress in this regard. Therefore, DOL's view is that amending
USERRA to require reporting on notification of rights is not
necessary. While these steps are positive, we continue to believe that
providing Congress this information on a regular basis is important
for supporting Congress in its oversight role.
DOJ, in written comments, which are included in appendix III, agreed
with our recommendations to establish consistent criteria for
including cases in quarterly USERRA reports and to establish
procedures to ensure that quarterly USERRA reports are submitted to
Congress within 30 days of the end of each quarter. While DOJ agreed
with our recommendation to improve its internal controls for producing
its quarterly reports with respect to checking reliability of data,
DOJ stated that its procedures for collecting, processing, and
maintaining data for the quarterly reports are adequate. We continue
to believe that DOJ's practice of having one person responsible for
the collection and maintenance of the data and its process for
manually counting claims to be included in the quarterly reports do
not provide sufficient internal controls to ensure the continued
accuracy of the data reported to Congress.
DOJ also expressed serious concern about our matter for congressional
consideration to amend USERRA to require DOJ to notify state employee
servicemembers of the status of their cases, stating that it is
extremely important to maintain its independence in determining
whether to file suit in the name of the United States against a state.
We continue to believe that it is important that state employees be
made aware of the status of their USERRA complaint and that an
amendment requiring notification would help ensure that this occurs.
The suggested amendment would not require DOJ to request approval from
the servicemember to extend deadlines and is consistent with DOJ's
current practice. In our view, this notification requirement would not
compromise DOJ's independence and would reinforce the important
distinction between state employee cases, where DOJ represents the
interests of the United States, and private employee cases, where DOJ
represents the individual servicemember. For cases involving state
employees, DOJ would be required to notify servicemembers of the
status of their cases, whereas in cases involving private employees,
DOJ is required to request approval from the servicemember to extend
the deadline for DOJ's review.
DOJ also said that it believed that it was unnecessary to amend USERRA
to require reporting on time spent on USERRA referrals after
representation has been declined because VBIA 2008 does not require
DOJ to engage in conciliation or settlement discussions. However,
because VBIA 2008 requirements were enacted in part due to concerns
over the length of time it takes to resolve USERRA complaints, the
proposed amendment is needed to provide Congress a full picture of the
effort that DOJ makes on behalf of servicemembers.
OSC, in written comments, which are included in appendix IV, generally
concurred with the conclusions and recommendations in our report.
However, OSC noted that, regarding the recommendation on establishing
consistent criteria for including cases in quarterly USERRA reports,
DOJ should adopt the criteria already used by DOL and OSC. As we state
in our report, VBIA 2008 called for the agencies to uniformly
categorize the data contained in their reports. Whether one way
provides greater benefit should be addressed by the agencies.
We will send copies of this report to the Attorney General, the
Secretary of Labor, the Associate Special Counsel, and other
interested parties. This report will also be available at no charge on
GAO's Web site at [hyperlink, http://www.gao.gov].
If you have questions about this report, please contact me at (202)
512-6806 or at ekstrandl@gao.gov. Contact points for our Offices of
Congressional Relations and Public Affairs may be found on the last
page of this report. Staff who made major contributions to this report
are listed in appendix V.
Signed by:
Laurie E. Ekstrand:
Director, Strategic Issues:
[End of section]
Appendix I: Objectives, Scope, and Methodology:
Our objectives were to assess the extent to which the Department of
Labor (DOL), Office of Special Counsel (OSC), and Department of
Justice (DOJ) (1) met Veterans' Benefits Improvement Act of 2008's
(VBIA 2008) complaint processing timeliness requirements between
October 10, 2008, and December 31, 2009, and (2) submitted timely and
reliable quarterly reports to Congress as required by VBIA 2008.
Objective 1: Assess the Extent to Which DOL, OSC, and DOJ Met VBIA's
Complaint Processing Timeliness Requirements between October 10, 2008,
and December 31, 2009:
To assess the extent to which DOL, OSC, and DOJ met VBIA 2008's
complaint processing timeliness requirements, we obtained information
on all the USERRA complaints filed with and without referral requests
received by DOL from October 10, 2008--the effective date of VBIA
2008--through December 31, 2009. We obtained data from DOL's USERRA
Information Management System on March 1, 2010. We considered cases
that were closed as of February 28, 2010, as completed cases, while
cases that remained open as of this date were treated as pending cases
in our analysis. We obtained 1,663 unique complaints and 205 referrals
that met these criteria from DOL. In addition, there were 68
complaints and 34 referrals that remained open as of February 28,
2010. We also obtained data during that same time period on referrals
received by OSC generated from its case tracking system, OSC 2000, and
by DOJ from the WordPerfect log used by the Employment Litigation
Section of its Civil Rights Division. For OSC, we obtained 45
referrals that met these criteria. For DOJ, we identified 201
referrals that met these criteria and four cases that remained open as
of February 28, 2010.
We first assessed the reliability of the data from databases that each
agency uses to maintain data for reporting to Congress under VBIA
2008. To assess the reliability of each of the databases, we compared
data from the databases with data found in the official hard copy case
files. For DOL and DOJ, we traced data from a random probability
sample of cases to the case files. For DOL, our sample included a
total of 60 unique cases where the servicemember did not request a
referral and 52 cases where the servicemember requested a referral.
[Footnote 27] For DOJ, our sample included 55 cases from a universe of
201 cases. Because OSC received only 45 referrals between October 10,
2008, and December 31, 2009, we compared the data from all 45 cases to
the official hard copy case files.
For selected data elements related to reporting to Congress, we
assessed the reliability of these data elements by attempting to match
the data in the databases with the source case files.[Footnote 28] In
addition, for each selected data element, we excluded cases from our
data reliability assessment if information was missing from the case
file, thus preventing a comparison between data in the databases and
the case file. We did not evaluate the accuracy of the source of the
case files for the data elements reviewed. For data elements
pertaining to time (i.e., open date and closed date), we considered
the date a match if the date in the databases was the same or within 1
day of the date reflected in the case file.
To assess the reliability of the data elements pertaining to time, we
assessed (1) the number of times that the electronic data did not
match the hard copy, case file data, (2) the average number of days
that the electronic date differed from the hard copy date, and (3) the
change in the number of cases exceeding the deadline based on
differences between the dates contained in the electronic data and the
hard copy data. Based on the collective results of each of these
tests, we consider each agency's data to be sufficiently reliable for
the purposes of this report.
To determine the extent to which each agency met the complaint
processing timeliness deadlines, we used the data from each agency's
database and calculated the average processing time for complaints and
referrals received from October 10, 2008, through December 31, 2009,
and that closed by February 28, 2010.
Because DOL does not maintain data in its USERRA database on the
extent to which it notified the claimant of his or her complaint
processing rights, we estimated that percentage based on the data
gathered from the random probability sample of case files. We reviewed
the extent to which there was evidence that DOL notified the
servicemember of his or her USERRA complaint processing rights within
5 days of receiving the complaint and the time it took to notify the
servicemember. We used four different indicators as evidence of
notification: (1) the pen and ink notation at the bottom of the
complaint form, (2) an E-mail containing the text of the standard
notification, (3) the presence of the enclosure for "Your USERRA
Complaint Process Rights," or (4) a letter or E-mail containing
language indicating that notification of rights was enclosed or
attached. All percentage estimates presented in this report have a
margin of error of plus or minus 11 percentage points or less at the
95 percent confidence level.
We also interviewed knowledgeable DOL, DOJ, and OSC officials. At DOL,
we interviewed officials from its Veterans' Employment and Training
Service (VETS) National Office, VETS's Atlanta Regional Office, and
DOL's Office of the Solicitor. At DOJ, we interviewed officials with
the Employment Litigation Section of the Civil Rights Division. At
OSC, we interviewed officials from the USERRA Unit and Information
Technology Branch.
Objective 2: Assess the Extent to Which DOL, OSC, and DOJ Have
Submitted Timely and Reliable Quarterly Reports to Congress as
Required by VBIA 2008:
Timeliness of Submissions: To determine the timeliness of each
agency's submission of the quarterly reports to Congress, we reviewed
the transmittal letters and other documentation of submission to
determine whether the quarterly reports were submitted to Congress
within 30 days after the end of the quarter. To determine each
agency's policies and procedures for submitting the quarterly reports,
we interviewed officials from DOL's VETS, DOJ's Office of Legislative
Affairs, and OSC's USERRA Unit.
Reliability of Quarterly Reports: To assess the reliability of the
quarterly reports, we used data from each agency's database covering
the period of October 10, 2008, through December 31, 2009, and, based
on criteria provided by each agency, attempted to recreate the
quarterly reports. For each agency's report, we assessed the accuracy
of the tables identifying the number of cases that met the deadline
and the number of cases that exceeded the applicable deadline, with
and without consent. We did not assess the data contained in the
narrative portion of each agency's reports. We also reviewed each
agency's policies and procedures for collecting, maintaining, and
storing the data and for producing the reports, and interviewed
officials from VETS's National Office and Atlanta Regional Office;
DOJ's Employment Litigation Section of its Civil Rights Division; and
OSC's USERRA Unit and Information Technology Branch.
DOL: We recreated five quarterly reports by applying DOL's criteria
and using data provided from its USERRA database. For each quarter, we
included investigations where the 90-day deadline occurred within the
quarter, or the 90-day due date occurred in a later quarter and the
close date occurred within the quarter. For referrals, we included
cases where the 60-day deadline occurred within the quarter, or the 60-
day deadline occurred in a later quarter and the last action on the
referral occurred during the quarter.
We found some differences between our analysis and the data in the
quarterly reports. However, we were generally able to account for the
differences. For referrals, these differences were due to DOL's
failure to correct its database to include extensions that DOL
identified while reviewing the data extracts prior to submission of
its quarterly reports. Specifically, when DOL identifies cases where
the latest deadline has been exceeded, DOL reviews documentation for
these cases to determine if an extension had been recorded in the file
but had not been entered in DOL's USERRA database. If DOL identifies
such a record, it makes a notation as part of its analysis, but it
does not always make a correction in its system of record--the USERRA
database. Specifically, we found four cases where DOL made a notation
in its analysis used to produce its quarterly report, but the
information did not appear in the data that we obtained from DOL's
USERRA database.[Footnote 29] For investigations, differences between
our analysis and the data in the quarterly reports may have been due
to changes in the status of a case being recorded in DOL's USERRA
database following the end of the quarter in which the case was
reported.
DOJ: We recreated four of five DOJ reports using criteria provided to
us by DOJ and applying those criteria to the data from DOJ's
WordPerfect log. We included cases where the 60-day deadline occurred
within the quarter. In addition, we included state cases in our
analyses through third quarter, fiscal year 2009--the same quarters
that state cases were included by DOJ.[Footnote 30] We could not
recreate DOJ's quarterly report for first quarter, fiscal year 2009,
because DOJ's WordPerfect log did not contain data on all cases
contained in the report--specifically referrals that were received
prior to October 10, 2008. Our analysis of the latter four reports
showed that DOJ included one additional referral that exceeded the 60-
day deadline with consent in second quarter, fiscal year 2009, and one
case that exceeded the deadline without consent in third quarter,
fiscal year 2009. This case exceeded the deadline by 2 days. Because
of the small number of inaccuracies, we found DOJ's fiscal year 2009
second through fourth quarter and fiscal year 2010 first quarter
reports to be generally consistent with our analysis.
OSC: We recreated OSC's report by including cases where the 60-day
deadline occurred within the quarter, or the 60-day deadline occurred
in a later quarter but OSC completed processing the referral within
the quarter. We did not find any discrepancies between our analysis
and the data contained in OSC's quarterly reports.
We conducted this performance audit from January 2010 through
September 2010 in accordance with generally accepted government
auditing standards. Those standards require that we plan and perform
the audit to obtain sufficient, appropriate evidence to provide a
reasonable basis for our findings and conclusions based on our audit
objectives. We believe that the evidence obtained provides a
reasonable basis for our findings and conclusions based on our audit
objectives.
[End of section]
Appendix II: Comments from the Department of Labor:
U.S. Department of Labor:
Assistant Secretary for Veterans' Employment and Training:
Washington, D.C. 20210:
September 30, 2010:
Ms. Laurie Ekstrand:
Director, Strategic Issues:
U.S. Government Accountability Office:
441 G Street, NW:
Washington, DC 20548:
Dear Ms. Ekstrand:
Thank you for the opportunity to review the Government Accountability
Office (GAO) draft report entitled "Servicemember Reemployment:
Agencies are Generally Timely in Processing Redress Complaints, but
Improvements Needed in Maintaining Data and Reporting" (GAO-11-55).
The Department of Labor (DOL) welcomes GAO's analysis and suggestions
for improving its Uniformed Services Employment and Reemployment
Rights Act (USERRA) program.
DOL is pleased that your audit found that 99% of the USERRA
investigations conducted by the Veterans' Employment and Training
Service (VETS), and 99% of the USERRA referrals processed by DOL, met
the original statutory deadline or an extended deadline agreed to by
the claimant. DOL• also appreciates being given the opportunity to
explain the circumstances of particular investigations and referrals
that exceeded the average time for completion. As is illustrated by
the explanations DOL provided for those "outliers," each USERRA case
is unique, and some cases and referrals necessarily take longer to
investigate and analyze than others.
For example, your audit found that one USERRA investigation took
almost one year to complete. This case involved a pension plan that
had been terminated and the Pension Benefit Guaranty Corporation
(PBGC) had become the plan's statutory trustee. DOL and PBGC worked
together to develop a regulatory amendment to resolve a tension
between USERRA's requirements and the PBGC's rules under the Employee
Retirement Income Security Act of 1974 ("ERISA"). On November 17,
2009, PBGC published a final rule (74 FR 59093) amending its benefit
payments regulation. The new rule, effective December 17, 2009, gives
credit, for PBGC guarantee purposes, for military service through plan
termination even if the Service Member returns to employment after
plan termination. Thus the new rule fully harmonizes PBGC's
regulations with USERRA's requirement that upon reemployment by the
previous employer the Service Member receives credit for pension plan
benefits that would have accrued but for the employee's absence due to
military service. At the time of publication, PBGC estimated that
through the end of FY 2010, there would be approximately 1,800
participants in plans trusteed by PBGC whose USERRA benefits would be
guaranteed as a result of the final rule, and that the present value
of those benefits would be about $4.5 million. PBGC expected to pay
approximately $85,000 in back payments to about 34 participants who
went into pay status after plan termination but before the rule became
effective. Many Veterans who never filed a USERRA complaint will
benefit from this comprehensive government solution to a complex
USERRA compliance issue.
The GAO report contains four recommendations for DOL. First, you
recommend that the Secretary of Labor, the Attorney General and the
Special Counsel establish consistent criteria for including cases in
their quarterly USERRA reports to Congress. DOL concurs with this
recommendation, and will work with these agencies to develop a
consistent approach to quarterly reporting.
Secondly, GAO recommends that VETS implement a system to monitor
compliance with the five-thy notification of rights requirements, and
maintain data on such compliance. As noted in the report, VETS is
implementing a new process for centralized receipt of hard copy
complaint forms. The GAO report found that all of the 15% of cases
where claimants were not notified of their rights within five days of
filing had been filed manually. The new process for manually-submitted
forms will replicate the process already in place for electronically-
submitted forms. DOL is confident that this new process for handling
hard copy complaints will ensure that all claimants receive timely
notification of rights. In addition, DOL will add a field to our
USERRA database to more closely track compliance with the notification
requirement.
The report further suggests that Congress consider amending USERRA to
require DOL to report on the extent to which it is notifying
complainants of their USERRA complaint process rights within 5 days of
filing a complaint. DOL is confident that the procedures described
above will ensure that claimants receive the required notification in
a timely manner, and will be pleased to. inform Congress and GAO on
the effectiveness of the new process. Therefore, DOL does not believe
it is necessary to amend the statute.
The third and fourth recommendations in the GAO report are that VETS
develop procedures to ensure that changes are entered into the USERRA
database as the quarterly reporting data are updated, and that
procedures are established to ensure that quarterly USERRA reports are
submitted to Congress on time. VETS concurs with both of these
recommendations, and will take steps to implement them.
We appreciate your team's thorough analysis and their work with our
staff in the course of developing this report. We are committed to
continuous improvement of our USERRA program and will promptly
implement these changes in light of your recommendations.
Sincerely,
Signed by:
Raymond M. Jefferson:
[End of section]
Appendix III: Comments from the Department of Justice:
U.S. Department of Justice:
Civil Rights Division:
Deputy Assistant Attorney General:
Washington, D.C. 20530:
October 1, 2010:
Laurie Ekstrand:
Director, Strategic Issues:
U.S. Government Accountability Office:
441 G Street, N.W.
Washington, D.C. 20548:
Dear Ms. Ekstrand:
Thank you for the opportunity to review the final draft of the
Government Accountability Office (GAO) report entitled "Servicemember
Reemployment: Agencies are Generally Timely in Processing Complaints,
but Improvements Needed in Maintaining Data and Reporting." This draft
report was reviewed by the Department of Justice's component that
participated in the review. This letter constitutes the Department's
formal comments. I request that the GAO include this letter in the
final report.
Recommendation that the Secretary of Labor, Attorney General, and
Special Counsel Establish Consistent Criteria for Including Cases in
their Quarterly Reports to Congress:
The Department of Justice supports this recommendation. The Department
of Justice and the other agencies already have collaborated regarding
consistent reporting criteria, and further meetings between the
agencies should ensure a consistent understanding of the agreed-upon
reporting criteria.
Recommendation that the Attorney General Establish Internal Controls
of Collecting, Maintaining, Processing. and Checking Reliability of
Data for the Quarterly Report:
The Department of Justice believes that its procedures for collecting,
maintaining, and processing data for the quarterly report are
adequate. With respect to checking reliability, however, the
Department agrees that more internal controls would be helpful to
protect against human error in the data input function.
Recommendation that the Attorney General Establish Procedures to
Ensure that Quarterly Reports are Submitted to Congress within 30 Days
of the End of Each Quarter as Required by the Veterans' Benefits and
Improvement Act of 2008:
The Department of Justice does not object to this recommendation, and
has already taken steps to ensure timely submissions of its Quarterly
Reports, as evidenced by its timely submission of the Third Quarterly
Report for FY2010.
The Department of Justice notes that it has serious concerns regarding
GAO's suggestion that Congress consider amending USERRA. so that the
Department must notify servicemembers regarding the status of the
Department's review of their USERRA complaints when suit will be filed
in the name of the United States. Based upon the Eleventh Amendment
issues raised in the GAO's report, the Department believes it is
extremely important to maintain its independence when exercising
prosecutorial discretion regarding whether to file suit in the name of
the United States against a State or State Agency.
The Department also has concerns regarding GAO's suggestion that the
Department report time spent on a USERRA referral after the Department
has decided, not to extend an offer of representation to the
servicemember. The purpose of the Veterans' Benefits and Improvement
Act of 2008 ("VBIA") is to ensure that DOJ timely reviews USERRA
referrals and notifies the claimant in writing, by imposed deadlines,
as to whether he or she will be offered representation in a court
action. As noted in the GAO's report, in some cases the Department
continues to aid the parties in settlement discussions after the
Department has definitively determined that it will not be offering
representation to the servicemember and notified the servicemember of
this decision in writing. Unlike the Department of Labor, the
Department of Justice has no statutory obligation to engage in
conciliation or settlement discussions with the parties. Thus, the
Department's continued efforts to provide settlement assistance are
solely to benefit the servicemember, and in no way designed to
administratively meet the VBIA's deadlines while continuing to work On
the case. Accordingly, the Department believes it is unnecessary to
impose additional administrative reporting requirements upon the
Department.
The extensive efforts that your staff has put into this report and the
opportunity to work with them on this important issue are appreciated.
Sincerely,
Signed by:
Loretta King:
Deputy Assistant Attorney General:
[End of section]
Appendix IV: Comments from the Office of Special Counsel:
U.S. Office Of Special Counsel:
1730 M Street, N.W., Suite 218:
Washington, D.C. 20036-4505
202-254-3600:
September 29, 2010:
Laurie E. Ekstrand:
Director, Strategic Issues:
U.S. Government Accountability Office:
441 G St., NW:
Washington, DC 20548:
Re: Response to GAO Draft Report GAO-11-55:
Dear Ms. Ekstrand:
Thank you for the opportunity to comment on Government Accountability
Office (GAO) Draft Report (GAO-11-55), Servicemember Reemployment:
Agencies Are Generally Timely in Processing Redress Complaints, but
Improvements Needed in Maintaining Data and Reporting. The report
addresses compliance by the Department of Labor (DOL), Department of
Justice (DOJ), and Office of Special Counsel (OSC) with changes made
by the Veterans Benefits Improvement Act of 2008 (VBIA) to the
Uniformed Services Employment and Reemployment Rights Act (USERRA),
which protects the civilian employment rights of military service
members.
OSC generally concurs with the conclusions and recommendations
contained in the report, with certain caveats. First, while we agree
with Recommendation # 1, that DOL, DOJ, and OSC should use consistent
criteria for inclusion of cases in their quarterly USERRA reports, we
note that DOL and OSC use the same criteria, which we believe provide
the most relevant, accurate, and transparent data consistent with the
purposes and requirements of the VBIA. Therefore, OSC believes that
such criteria should be adopted by DOJ, and that Recommendation # 1
should be modified accordingly.
Second, with regard to GAO's Matters for Congressional Consideration #
4, that Congress should consider amending USERRA to require DOJ and
OSC to report on additional time taken to resolve a matter after they
decline representation, we note that OSC's practice is to facilitate
settlement before making a final decision on representation, which we
believe enhances the service member's bargaining position and the
likelihood of a favorable resolution. As noted in the report, OSC will
seek an extension from a service member if necessary to continue its
efforts to facilitate settlement. Thus, OSC's data and reports already
reflect the additional time spent on such efforts. For these reasons,
even if Congress amended USERRA in the manner described in the report,
OSC would likely continue its current practice, which we believe is in
the best interests of service members.
In closing, we appreciate your efforts and thank you for the
opportunity to comment on your report.
Sincerely,
Signed by:
William E. Reukauf:
Associate Special Counsel:
[End of section]
Appendix V: GAO Contact and Staff Acknowledgments:
GAO Contact:
Laurie E. Ekstrand at (202) 512-6806 or ekstrandl@gao.gov.
Acknowledgments:
In addition to the contact named above, individuals making key
contributions to this report were Bill Reinsberg, Assistant Director;
Jim Ashley; Gerard Burke; Karin Fangman; Donna Miller; Wesley Sholtes;
Tamara Stenzel; Jessica Thomsen; and Greg Wilmoth.
[End of section]
Related GAO Products:
Military Personnel: Improvements Needed to Increase Effectiveness of
DOD's Programs to Promote Positive Working Relationships between
Reservists and Their Employers. [hyperlink,
http://www.gao.gov/products/GAO-08-981R]. Washington, D.C.: August 15,
2008.
DOD Financial Management: Adjudication of Butterbaugh Claims for the
Restoration of Annual Leave or Pay. [hyperlink,
http://www.gao.gov/products/GAO-08-948R]. Washington, D.C.: July 28,
2008.
Military Personnel: Federal Agencies Have Taken Actions to Address
Servicemembers' Employment Rights, but a Single Entity Needs to
Maintain Visibility to Improve Focus on Overall Program Results.
[hyperlink, http://www.gao.gov/products/GAO-08-254T]. Washington,
D.C.: November 8, 2007.
Military Personnel: Considerations Related to Extending Demonstration
Project on Servicemembers' Employment Rights Claims. [hyperlink,
http://www.gao.gov/products/GAO-08-229T]. Washington, D.C.: October
31, 2007.
Military Personnel: Improved Quality Controls Needed over
Servicemembers Employment Rights Claims at DOL. [hyperlink,
http://www.gao.gov/products/GAO-07-907]. Washington, D.C.: July 20,
2007.
Office of Special Counsel Needs to Follow Structured Life Cycle
Management Practices for Its Case Tracking System. [hyperlink,
http://www.gao.gov/products/GAO-07-318R]. Washington, D.C.: February
16, 2007.
Military Personnel: Additional Actions Needed to Improve Oversight of
Reserve Employment Issues. [hyperlink,
http://www.gao.gov/products/GAO-07-259]. Washington, D.C.: February 8,
2007.
Military Personnel: Federal Management of Servicemember Employment
Rights Can Be Further Improved. [hyperlink,
http://www.gao.gov/products/GAO-06-60]. Washington, D.C.: October 19,
2005.
U.S. Office of Special Counsel's Role in Enforcing Law to Protect
Reemployment Rights of Veterans and Reservists in Federal Employment.
[hyperlink, http://www.gao.gov/products/GAO-05-74R]. Washington, D.C.:
October 6, 2004.
[End of section]
Footnotes:
[1] Pub. L. No. 103-353, 108 Stat. 3149 (Oct. 13, 1994) (codified at
38 U.S.C. §§ 4301-4335). USERRA is the most recent in a series of laws
protecting veterans' employment and reemployment rights going back to
the Selective Training and Service Act of 1940. Pub. L. No. 783, 54
Stat. 885, 890 (Sept. 16, 1940).
[2] In addition to those serving in the Armed Forces and the Army and
Air National Guards (when engaged in active duty for training,
inactive duty training, or full-time National Guard duty), USERRA
covers the commissioned corps of the Public Health Service and other
persons designated by the President in time of war or national
emergency.
[3] DOJ initiates legal action in federal district court and OSC
initiates legal action before the Merit Systems Protection Board
(MSPB). Servicemembers may also bring their claims directly to federal
court or to the MSPB without using federal assistance.
[4] GAO, Military Personnel: Improved Quality Controls Needed over
Servicemembers' Employment Rights Claims at DOL, [hyperlink,
http://www.gao.gov/products/GAO-07-907] (Washington, D.C.: July 20,
2007); Military Personnel: Additional Actions Needed to Improve
Oversight of Reserve Employment Issues, [hyperlink,
http://www.gao.gov/products/GAO-07-259] (Washington, D.C.: Feb. 8,
2007); and Military Personnel: Federal Management of Servicemember
Employment Rights Can Be Further Improved, [hyperlink,
http://www.gao.gov/products/GAO-06-60] (Washington, D.C.: Oct. 19,
2005).
[5] VBIA 2008 also included a provision stating that if DOL, DOJ, or
OSC are unable to meet a deadline related to investigating or
resolving the case or offering representation and the complainant
agrees to an extension of time, then the agencies shall complete the
required action within the additional period of time agreed to by the
complainant. In addition to the USERRA-related provisions, VBIA 2008
addresses a range of veterans' issues, including compensation,
pensions, education, insurance, and housing. Pub. L. No. 110-389, 122
Stat. 4145 (Oct. 10, 2008).
[6] USERRA further prohibits employer retaliation against any
individual who engages in protected activity under USERRA, regardless
of whether the individual has performed service in the uniformed
services.
[7] USERRA provides for both informal and formal assistance to
servicemembers. Servicemembers can file informal complaints with the
Department of Defense's Employer Support of the Guard and Reserve,
which can serve as ombudsmen to informally mediate USERRA issues that
arise between servicemembers and their employers.
[8] VBIA 2008 does not require DOL to report on the extent to which it
notified servicemembers of their complaint processing rights.
[9] DOJ inputs initial case information, such as case number and date
received, from the Civil Rights Division's primary database into its
WordPerfect log.
[10] USERRA Benefits Under Title IV of ERISA, 74 Fed. Reg. 59093 (Nov.
17, 2009) (amending 29 C.F.R. pts. 4001 and 4022).
[11] DOL sought an extension to complete the investigation in all 32
cases open for more than 90 days.
[12] In nearly all 13 referrals open for more than 60 days, DOL sought
an extension to finish processing the referral.
[13] GAO, Military Personnel: Improved Quality Controls Needed over
Servicemembers' Employment Rights Claims at DOL, [hyperlink,
http://www.gao.gov/products/GAO-07-907] (Washington, D.C.: July 20,
2007).
[14] Each of these estimates has a margin of error at the 95 percent
confidence level of plus or minus 11 percentage points or less.
[15] In all three referrals open for more than 60 days, DOJ sought an
extension to finish processing the referral.
[16] 38 U.S.C. § 4323(a)(2).
[17] Section 4323(a)(1) of title 38 of the United States Code provides
that "[i]n case of such an action against a State (as an employer),
the action shall be brought in the name of the United States as the
plaintiff in the action."
[18] USERRA used to permit private servicemember suits against their
state employers in federal court, but this option was removed by
Congress in 1998 as a result of successful legal challenges by states
to such suits based on the Eleventh Amendment of the U.S.
Constitution's guarantee of state sovereignty, which protects states
from being sued without their consent. See, e.g., Palmatier v.
Michigan Dept. of State Police, 981 F. Supp. 529 (W.D. Mich. 1997).
Federal district courts, such as in Palmatier, applied the 1996
Supreme Court decision, Seminole Tribe of Florida v. Florida, 517 U.S.
44, in dismissing USERRA cases brought by individual servicemembers
against their state employers. In the Seminole case, which involved
application of the Indian Gaming Regulatory Act, the Supreme Court
ruled that Congress was precluded by the Eleventh Amendment from
permitting individuals to sue states in federal court for violating
federal statutes. One recognized exception to this principle of
sovereign immunity involves suits against states by the United States.
The 1998 amendment to USERRA provided for suits against state
employers to be brought by the United States as plaintiff in federal
court. Pub. L. No. 105-368, § 211, 112 Stat. 3315, 3329-3331 (Nov. 11,
1998). See, 38 U.S.C. § 4323(a)(1).
[19] VBIA 2008 does not require DOJ and OSC to report time working on
a case after they have made a decision on representation.
[20] Unlike DOJ, OSC officials said that they facilitate settlement in
all cases before making a decision on representation to enhance the
bargaining position of the servicemember. When the 60-day deadline
approaches, OSC will seek an extension from the servicemember if
necessary to facilitate settlement.
[21] As of February 28, 2010, there were no cases included in our
review where a decision on representation had not been made.
[22] For a more detailed discussion of the methods we used to assess
each agency's quarterly reports, see appendix 1.
[23] We incorporated these data into our analysis of the extent to
which DOL met VBIA 2008 complaint processing timeliness requirements.
[24] GAO, Standards for Internal Control in the Federal Government,
[hyperlink, http://www.gao.gov/products/GAO/AIMD-00-21.3.1]
(Washington, D.C.: November 1999).
[25] GAO, Office of Special Counsel Needs to Follow Structured Life
Cycle Management Practices for Its Case Tracking System, [hyperlink,
http://www.gao.gov/products/GAO-07-318R] (Washington, D.C.: Feb. 16,
2007).
[26] [hyperlink, http://www.gao.gov/products/GAO/AIMD-00-21.3.1].
[27] Of those cases we reviewed, 60 contained data only on
investigations because the servicemember did not request a referral,
30 cases contained data related to both investigations and referrals,
and 22 contained data related to referrals only. There were a total of
90 cases in the investigation sample.
[28] For DOL, these data elements included case number, employer, date
investigation was opened, date investigation was closed, extensions of
deadline, date referral was requested, and date the referral was sent
to DOJ or OSC. For DOJ and OSC, they included case number, date
received from DOL, date of decision on representation, and extensions.
For DOJ, we also assessed whether the data element indicated if the
case was against a state.
[29] DOL subsequently provided evidence of consent for an extension
and such data were incorporated to our analysis on the extent to which
DOL met the applicable deadline.
[30] DOJ reported on state cases in the narrative portion of its
fourth quarter fiscal year 2009 and first quarter fiscal year 2010
quarterly reports.
[End of section]
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