Military Personnel:

Federal Management of Servicemember Employment Rights Can Be Further Improved

GAO-06-60: Published: Oct 19, 2005. Publicly Released: Oct 19, 2005.

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The Uniformed Services Employment and Reemployment Rights Act (USERRA) of 1994 protects millions of people, largely National Guard and Reserve members, as they transition between their federal duties and their civilian employment. The act is intended to eliminate or minimize employment disadvantages to civilian careers that can result from service in the uniformed services. This report examines the extent to which the Departments of Defense (DOD), Labor (DOL), Justice (DOJ), and the Office of Special Counsel (OSC) have achieved this purpose, specifically, the extent to which the agencies (1) have data that indicate the level of compliance with USERRA, (2) have efficiently and effectively conducted educational outreach, and (3) have efficiently and effectively addressed servicemember complaints.

Whether or not overall USERRA compliance has changed is difficult to firmly establish; however, the agencies that support or enforce USERRA have collected formal and informal complaint data and some employer support figures that provide limited insights into compliance. For example, DOL's formal complaint numbers show a possible relationship with the level of the use of the reserve components and the number of complaints. DOD data show that some employers exceed USERRA requirements, but these data have limitations. DOD has only 1 full year of informal complaint data, so it will be several years before DOD can identify any meaningful trends in informal complaints. Because informal complaint figures have not been captured on a consistent basis, agencies lack the data necessary to identify total complaint trends. Furthermore, data from a 2004 DOD survey showed that at least 72 percent of National Guard and Reserve members with USERRA problems never sought assistance for their problems. This raises questions as to whether complaint numbers alone can fully explain USERRA compliance or employer support. Some recently added employment questions on DOD's periodic surveys, if continued, offer the potential to provide insight into compliance and employer support issues. DOD, DOL, and OSC have educated hundreds of thousands of employers and servicemembers about USERRA, but the efficiency and effectiveness of this outreach is hindered by a lack of employer information. DOD's reserve component members who can be involuntarily called to active duty are required to enter their civilian employer information into a DOD database but the services have not enforced this requirement and as of August 2005, about 40 percent of the members had not entered the required information. Without information about the full expanse of servicemember employers, federal agencies have conducted general outreach efforts but have been limited in their ability to efficiently and effectively target educational outreach efforts to employers who actually have servicemember employees. Agency abilities to efficiently and effectively address servicemember complaints are hampered by incompatible data systems, a reliance on paper files, and a segmented process that lacks visibility. The systems that DOD, DOL, DOJ, and OSC use to track USERRA complaints are not compatible. As a result, data collection efforts are sometimes duplicated, and DOL relies on its paper files when transferring or reviewing complaints. This slows the transfer of complaints and limits the ability of DOL managers to conduct effective, timely oversight of complaint files. Furthermore, segmented responsibilities and lack of visibility have led agencies to focus on outputs rather than results. For example, agencies measure complaint processing times but not the elapsed time servicemembers actually wait to have their complaints fully addressed. GAO analysis of 52 complaints that had been closed and reopened two or more times found that recorded processing times averaged 103 days but the actual elapsed times that servicemembers waited to have their complaints fully addressed averaged 619 days.

Matter for Congressional Consideration

  1. Status: Closed - Not Implemented

    Comments: The Office of Special Counsel conducted a congressionally directed pilot where they were the primary responsible office for overseeing certain Uniformed Service Employment and Reemployment Rights Act complaints. However, after the pilot test was completed on December 31, 2007 responsibilities for handling USERRA-related issues went back to the way they were prior to the pilot. Responsibilities continue to be shared by DOD, DOL, DOJ, and OSC.

    Matter: To encourage agencies to focus on results rather than outputs, to improve federal responsiveness to servicemember complaints that are referred from one agency to another, and to improve the completeness and accuracy of the annual USERRA reports to Congress, Congress may wish to consider designating a single individual or office to maintain visibility over the entire complaint resolution process from DOD through DOL, DOJ, and OSC. For example, the office or individual would track and report the actual time it takes for federal agencies to fully address servicemember USERRA complaints.

Recommendations for Executive Action

  1. Status: Closed - Implemented

    Comments: In its periodic status of forces surveys, DOD is including questions to determine the extent to which servicemembers are experiencing USERRA-related problems. Specifically, these questions were included in five Status of Forces Surveys that have been conducted since our report was issued in 2006. As a result, DOD has been able to quantify the complaint levels over time as conditions change (the economic climate, pace of operations, level of patriotism, or support for operations.

    Recommendation: To gauge the effectiveness of federal actions to support USERRA by identifying trends in USERRA compliance and employer support, the Secretary of Defense should direct the Under Secretary of Defense for Personnel and Readiness to include questions in DOD's periodic Status of Forces Surveys to determine the extent to which servicemembers experience USERRA-related problems.

    Agency Affected: Department of Defense

  2. Status: Closed - Implemented

    Comments: In its periodic status of forces surveys, DOD is including questions to determine from whom servicemembers seek assistance if they are experiencing USERRA-related problems. Specifically, DOD asked questions about servicemember assistance in five Status of Forces Surveys that have been conducted since our report was issued in 2006. As a result, DOD has been able to gauge the level of support that its ombudsmen are providing relative to other agencies. For example, the responses to one survey showed that 9 percent of servicemembers required DOD assistance (through the Employer Support to the Guard and Reserve ombudsmen) while only 1 percent required Department of Labor assistance.

    Recommendation: To gauge the effectiveness of federal actions to support USERRA by identifying trends in USERRA compliance and employer support, the Secretary of Defense should direct the Under Secretary of Defense for Personnel and Readiness to include questions in DOD's periodic Status of Forces Surveys to determine if they experience these problems, from whom they seek assistance.

    Agency Affected: Department of Defense

  3. Status: Closed - Implemented

    Comments: In its periodic status of forces surveys, DOD has included questions to determine why servicemembers do not request assistance when they have USERRA-related problems. Specifically, DOD asked this question in three Status of Forces Surveys that have been conducted since our report was issued in 2006.

    Recommendation: To gauge the effectiveness of federal actions to support USERRA by identifying trends in USERRA compliance and employer support, the Secretary of Defense should direct the Under Secretary of Defense for Personnel and Readiness to include questions in DOD's periodic Status of Forces Surveys to determine if they do not seek assistance, why not.

    Agency Affected: Department of Defense

  4. Status: Closed - Implemented

    Comments: In its periodic status of forces surveys, DOD has included questions to determine the extent to which employers are providing support above that which is required under the USERRA law. Specifically, DOD asked this question in two of the Status of Forces Surveys that have been conducted since our report was issued in 2006.

    Recommendation: To gauge the effectiveness of federal actions to support USERRA by identifying trends in USERRA compliance and employer support, the Secretary of Defense should direct the Under Secretary of Defense for Personnel and Readiness to include questions in DOD's periodic Status of Forces Surveys to determine the extent to which servicemember employers provide support beyond that required by the law.

    Agency Affected: Department of Defense

  5. Status: Closed - Implemented

    Comments: In our report we noted that although DOD had a policy in place to require reserve component members to supply information about their civilian employers many reservists had not complied with the policy. Our report noted that compliance rates for members of the Selected Reserve (those who drill on a regular basis) ranged between 66 percent from the Army and Marine Corps Reserves to 83 percent for the Air Force Reserve. After our report was issued, DOD developed standardized reports that identify civilian employers and the numbers of Guard and Reserve members who work for each employer. In addition, the Office of the Assistant Secretary of Defense for Reserve Affairs began to weekly track compliance with the existing policy. Selected Reserve compliance with the reporting requirements have climbed to over 90 percent, and the Army Reserve has reached 95 percent. Because of the constant flow of personnel into and out of the force a 100 percent compliance rate is likely unachievable but DOD has taken the necessary steps to fully comply with the intent of our recommendation.

    Recommendation: To more efficiently and effectively educate employers about USERRA through coordinated outreach efforts, which target employers with servicemember employees, the Secretary of Defense should direct the service secretaries to take steps to enforce the requirement for servicemembers to report their civilian employment information and develop a plan to maintain current civilian employment information.

    Agency Affected: Department of Defense

  6. Status: Closed - Implemented

    Comments: DOD has developed standardized Civilian Employment Information reports that identify the numbers of Guard and Reserve members who work for each employer and DOD has established points of contact at the Department of Labor and the Office of Special Counsel to receive the shared information. DOD and DOL have also developed the capability to transfer data between their systems and information concerning individual cases can now be shared between the two departments.

    Recommendation: To more efficiently and effectively educate employers about USERRA through coordinated outreach efforts, which target employers with servicemember employees, the Secretary of Defense should direct the Assistant Secretary of Defense for Reserve Affairs to share applicable employer information from DOD's employer database with DOL, OSC, and other federal agencies that educate employers about USERRA, consistent with the Privacy Act.

    Agency Affected: Department of Defense

  7. Status: Closed - Implemented

    Comments: Our report referred to DOD's ombudsmen's actions as addressing "informal complaints" and the actions of the Departments of Labor and Justice and the Office of Special Counsel as addressing formal complaints. In responding to our report, DOD distinguished the actions its ombudsmen take in response to what it calls "inquiries", from the formal complaint processing at the Departments of Labor and Justice and the Office of Special Counsel, which can result in legal action. As a result, DOD deferred action on this recommendation to the Departments of Labor and Justice and to the Office of Special Counsel. Despite making this distinction, DOD has worked with the Department of Labor and the Department of Labor is now able to electronically receive informal complaint/inquiry information from DOD. Since all of the DOD inquiries/informal complaints that reach the Departments of Justice and the Office of Special Counsel must flow through the Department of Labor, there was not a need for DOD to coordinate with the other two agencies to electronically transfer information. The electronic sharing of information among the other 3 agencies--the Departments of Labor and Justice and the Office of Special Counsel--is addressed in other recommendations.

    Recommendation: To increase agency responsiveness to servicemember USERRA complaints, the Secretary of Defense, the Secretary of Labor, the Attorney General, and the Special Counsel should develop procedures or systems to enable the electronic transfer of complaint information between offices.

    Agency Affected: Department of Defense

  8. Status: Closed - Implemented

    Comments: Following the issuance of our report, in FY 2007, the Department of Labor's (DOL) Veterans' Employment and Training Service (VETS) implemented shared access to its USERRA electronic case and data management system. The enhanced USERRA Information Management System (UIMS) allows VETS' USERRA federal partners (the Department of Labor Solicitors Office (SOL), the Office of Special Counsel (OSC), the Department of Justice (DOJ), and DOD's Employer Support to Guard and Reserve office (ESGR)) to access the system, allowing all four agencies to obtain aggregate data and access pertinent case information. Currently VETS, SOL, DOJ, and OSC use the UIMS to report USERRA case activities. ESGR ombudsmen seek to resolve servicemember concerns before they become cases and ombudsmen case information can be electronically sent to DOL.

    Recommendation: To increase agency responsiveness to servicemember USERRA complaints, the Secretary of Defense, the Secretary of Labor, the Attorney General, and the Special Counsel should develop procedures or systems to enable the electronic transfer of complaint information between offices.

    Agency Affected: Department of Labor

  9. Status: Closed - Implemented

    Comments: Following the issuance of our report, in FY 2007, the Department of Labor's (DOL) Veterans' Employment and Training Service (VETS) implemented shared access to its USERRA electronic case and data management system. The enhanced USERRA Information Management System (UIMS) allows VETS' USERRA federal partners (the Department of Labor Solicitors Office (SOL), the Office of Special Counsel (OSC), the Department of Justice (DOJ), and DOD's Employer Support to Guard and Reserve office (ESGR)) to access the system, allowing all four agencies to obtain aggregate data and access pertinent case information. Currently VETS, SOL, DOJ, and OSC use the UIMS to report USERRA case activities. ESGR ombudsmen seek to resolve servicemember concerns before they become cases and ombudsmen case information can be electronically sent to DOL.

    Recommendation: To increase agency responsiveness to servicemember USERRA complaints, the Secretary of Defense, the Secretary of Labor, the Attorney General, and the Special Counsel should develop procedures or systems to enable the electronic transfer of complaint information between offices.

    Agency Affected: Department of Justice

  10. Status: Closed - Implemented

    Comments: Following the issuance of our report, in FY 2007, the Department of Labor's (DOL) Veterans' Employment and Training Service (VETS) implemented shared access to its USERRA electronic case and data management system. The enhanced USERRA Information Management System (UIMS) allows VETS' USERRA federal partners (the Department of Labor Solicitors Office (SOL), the Office of Special Counsel (OSC), the Department of Justice (DOJ), and DOD's Employer Support to Guard and Reserve office (ESGR)) to access the system, allowing all four agencies to obtain aggregate data and access pertinent case information. Currently VETS, SOL, DOJ, and OSC use the UIMS to report USERRA case activities. ESGR ombudsmen seek to resolve servicemember concerns before they become cases and ombudsmen case information can be electronically sent to DOL.

    Recommendation: To increase agency responsiveness to servicemember USERRA complaints, the Secretary of Defense, the Secretary of Labor, the Attorney General, and the Special Counsel should develop procedures or systems to enable the electronic transfer of complaint information between offices.

    Agency Affected: Office of Special Counsel

  11. Status: Closed - Implemented

    Comments: In its official written comments to our report, the Department of Labor agreed with our recommendations that its Veterans' Employment and Training Service (VETS) should reduce agency reliance on paper files and fully adopt the agency's automated complaint file system. The Assistant Secretary for VETS stated that "given the advanced capabilities for electronic storage and transmission of documents we envision a system in which VETS investigators create and store investigative and other records and documents electronically, and that the Solicitor's office has the ability to immediately access those records. Due regard would of course be given to preserving privacy rights, and assuring that documentary evidence needed for trial would be preserved in a form consistent with the evidentiary requirements of the Federal courts and the Merit Systems Protection Board." Since our report was issued, DOL has made several enhancements to its electronic records systems. Electronic information can now be shared between the Department of Labor and all the other federal agencies who have USERRA-related roles. In response to our report, VETS also updated its electronic case files to assign unique case numbers that eliminate the duplicative counting that was identified in our report. In 2008, VETS implemented a new electronic USERRA Operations Manual. This manual allows investigators to toggle from instructions to the corresponding section of the law or the appropriate regulation, and also provides templates for many of the important communications that occur routinely in the course of an investigation. Because the templates are electronic, investigators are able to customize them to address the unique circumstances of a particular investigation, yet still retain the uniformity of the investigation process. VETS also successfully tested a program for auditing case files in 2 regions and have plans to audit all six regions. Finally, to safeguard the privacy of USERRA claimants, VETS moved its USERRA investigative database out of a secure contractor facility to its current location in the Department of Labor, behind the DOL firewall.

    Recommendation: To reduce the administrative burden on Veterans' Employment and Training Service (VETS) investigators and improve the ability of VETS managers to provide effective, timely oversight of USERRA complaint processing, the Secretary of Labor should direct the Assistant Secretary for Veterans' Employment and Training to develop a plan to reduce agency reliance on paper files and fully adopt the agency's automated complaint file system.

    Agency Affected: Department of Labor

 

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