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Processing Redress Complaints, but Improvements Needed in Maintaining 
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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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