Veterans' Reemployment Rights: Steps Needed to Ensure Reliability of DOL and Special Counsel Demonstration Project's Performance Information

In the wake of the ongoing conflicts in Iraq and Afghanistan, thousands of current and former military servicemembers are undergoing a transition between their military service and their civilian employment. Congress enacted the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) to protect the employment and reemployment rights of federal and nonfederal employees when they leave their employment to perform military or other uniformed service. Among other rights, servicemembers who meet the statutory requirements are entitled to reinstatement to the positions they would have held if they had never left their employment or to positions of like seniority, status, and pay. USERRA applies to a wide range of employers, including federal, state, and local governments as well as private-sector firms. This report focuses on federal executive agencies. Under USERRA, an employee who believes that his or her USERRA rights have been violated may file a claim with the Department of Labor's (DOL) Veterans' Employment and Training Service (VETS), which investigates and attempts to resolve the claim. If DOL's VETS cannot resolve the claim and the servicemember is a federal government employee or applicant to a federal agency, DOL is to inform the claimant of the right to have his or her claim referred to the Office of Special Counsel (OSC) for further review and possible OSC representation before the Merit Systems Protection Board (MSPB). Under a demonstration project established by the Veterans Benefits Improvement Act of 2004 (VBIA), from February 8, 2005, through December 31, 2007, OSC was authorized to receive and investigate certain USERRA claims, with DOL continuing its investigative role for others. In 2007, we evaluated the demonstration project and reported to Congress that while both DOL and OSC had policies and procedures for receiving, investigating, and resolving USERRA claims against federal executive employers since the start of the demonstration project, data for reporting outcomes were not sufficiently reliable at either agency. We recommended that the Secretary of Labor develop an internal review mechanism for all unresolved claims before they are closed and claimants are notified and establish internal controls to ensure the accuracy of data entered into DOL's database. DOL agreed with and implemented our recommendations. At the end of this demonstration project, DOL and OSC returned to the USERRA investigation and review procedures in place before the start of the demonstration project. Congress included language in the Veterans' Benefits Act of 2010 (VBA) directing OSC and DOL to establish a second demonstration project (36-month duration) for receiving, investigating, and resolving USERRA claims against federal executive employers. Similar to procedures authorized for the first demonstration project, under the current demonstration project, VETS is authorized to investigate and seek corrective action for those claims filed against federal executive agencies if the servicemember's Social Security number (SSN) ends in an even number, and OSC is authorized to investigate and seek corrective action for USERRA claims against federal executive agencies if the servicemember's SSN ends in an odd number. The legislation also directs the two agencies to submit a report to Congress and GAO describing the jointly established methods and procedures to be used in reviewing their relative performance during the demonstration project. Furthermore, VBA mandates that GAO report on the methods and procedures selected by the agencies and may provide any recommendations for improving the design of the demonstration project. The VBA directs the demonstration project to begin no later than 60 days after the GAO report is submitted to Congress and also directs GAO to conduct periodic evaluations of the demonstration project and submit to Congress a report on these evaluations.

The joint report describing the demonstration project's design for investigating and resolving USERRA claims shows that DOL and OSC have identified and agreed upon a preliminary set of performance measures. These measures will facilitate the collection of baseline information and measurement of performance related to customer satisfaction, timeliness, and cost. However, the report lacked sufficient details about the methods agencies will use to collect the data needed to report on these measures. As such, we cannot yet determine whether the resulting performance information will be reliable and will permit a later comparison of the agencies' performance. For example, the joint report did not include sufficient information to determine whether the two agencies have established a comparable process for administering a standardized customer satisfaction survey, calculating the average cost of a claim, or reporting case outcomes, such as claim granted, claim settled, no merit, or withdrawn. Also, for the purpose of measuring the average processing time of a claim, the joint report described the deadlines to be adhered to when investigating claims and reviewing claims for representation. However, the report lacked sufficient detail on how OSC will conduct its investigative and legal review in stages comparable to DOL's process. Having DOL and OSC select comparable methods and procedures for collecting and reporting their data is a critical step in ensuring the integrity of the evaluation of the demonstration project. Significant differences in the way in which the two agencies collect and report data could compromise the validity and reliability of the evaluation of this demonstration project by limiting the ability to compare the agencies' relative performance processing claims. The joint report also did not identify the steps agencies will take to ensure the accuracy and reliability of data. If data errors are substantial, they will impede the ability to draw accurate conclusions based on those data. To address these issues, we recommend that prior to the start of the demonstration project (1) the Special Counsel, as the project administrator, and (2) the Secretary of Labor, by directing the Assistant Secretary for Veterans' Employment and Training, take the following five actions: (1) To ensure that customer (i.e., servicemember) satisfaction data are collected in a way that is most likely to produce reliable information, DOL and OSC should establish and agree upon comparable methods for administering the customer satisfaction survey. The survey plan should also document what steps agencies will take to ensure adequate response rates; (2) To ensure that both agencies can document how long it takes to investigate a claim, and how long it takes to conduct a legal review, OSC should describe the actions and functions it plans to apply to each of those phases, and the agencies should agree that they have established a comparable two-step process; (3) To ensure that both agencies use comparable methods for tracking the amount of personnel time spent investigating and reviewing federal USERRA cases, and the costs of these activities including indirect costs such as administrative overhead, DOL and OSC should establish, document, and agree upon a time accounting process that distinguishes between the investigative and legal review phases and a method that assigns costs to claims processing activities; (4) Provide evidence that the agencies have identified, and agreed upon, a common set of potential case outcomes and a crosswalk of common or comparable codes assigned to each of those outcomes prior to the start of the demonstration project, such as claim granted, claim settled, no merit, or withdrawn; (5) Agree upon a controls plan and implementation strategy that will be used during the course of the demonstration project to help ensure data integrity, reliability, and accuracy.