Servicemember Reemployment:

Agencies Are Generally Timely in Processing Redress Complaints, but Improvements Needed in Maintaining Data and Reporting

GAO-11-55: Published: Oct 22, 2010. Publicly Released: Oct 22, 2010.

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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.

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. 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.

Status Legend:

More Info
  • Review Pending-GAO has not yet assessed implementation status.
  • Open-Actions to satisfy the intent of the recommendation have not been taken or are being planned, or actions that partially satisfy the intent of the recommendation have been taken.
  • Closed-implemented-Actions that satisfy the intent of the recommendation have been taken.
  • Closed-not implemented-While the intent of the recommendation has not been satisfied, time or circumstances have rendered the recommendation invalid.
    • Review Pending
    • Open
    • Closed - implemented
    • Closed - not implemented

    Matters for Congressional Consideration

    Matter: To help ensure that Congress is fully apprised of efforts to resolve a case, Congress may wish to consider amending USERRA to require DOJ and OSC to report on additional time taken to resolve a matter after they decline representation.

    Status: Open

    Comments: This matter has not yet been considered by Congress.

    Matter: To help ensure that that servicemembers who file complaints are adequately being informed of their USERRA complaint process rights in accordance with VBIA 2008, Congress may wish to 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.

    Status: Open

    Comments: This matter has not yet been considered by Congress.

    Matter: To help ensure that DOJ handles state cases as expediently as private employer cases, Congress may wish to 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.

    Status: Open

    Comments: Legislation was introduced in the Senate that would address this matter (S.6). The legislation was amended and reported favorably out of the Veterans' Affairs Committee in late July 2013.

    Matter: 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 may wish to consider amending USERRA to require DOJ to notify these servicemembers of the status of DOJ's efforts.

    Status: Open

    Comments: Legislation was introduced in the Senate that would address this matter (S.6). The legislation was amended and reported favorably out of the Veterans' Affairs Committee in late July 2013.

    Recommendations for Executive Action

    Recommendation: The Secretary of Labor, Attorney General, and Special Counsel should establish consistent criteria for including cases in their quarterly USERRA reports to Congress.

    Agency Affected: Office of Special Counsel

    Status: Closed - Implemented

    Comments: To resolve this issue, the Attorney General has adopted the same criteria already in use by the Office of Special Counsel (OSC) and Department of Labor (DOL). All three agencies are now reporting their cases in the same manner, using the same criteria.

    Recommendation: The Secretary of Labor, Attorney General, and Special Counsel should establish consistent criteria for including cases in their quarterly USERRA reports to Congress.

    Agency Affected: Department of Labor

    Status: Closed - Implemented

    Comments: To resolve this issue, the Attorney General has adopted the same criteria already in use by the Office of Special Counsel (OSC) and Department of Labor (DOL). All three agencies are now reporting their cases in the same manner, using the same criteria.

    Recommendation: The Secretary of Labor, Attorney General, and Special Counsel should establish consistent criteria for including cases in their quarterly USERRA reports to Congress.

    Agency Affected: Department of Justice

    Status: Closed - Implemented

    Comments: To resolve this issue, the Attorney General has adopted the same criteria already in use by the Office of Special Counsel (OSC) and Department of Labor (DOL). All three agencies are now reporting their cases in the same manner, using the same criteria.

    Recommendation: The Secretary of Labor should 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.

    Agency Affected: Department of Labor

    Status: Closed - Implemented

    Comments: The Veterans Employment and Training Service implemented a process for centralized receipt of hard copy complaint forms. The new process for manually-submitted forms replicates the process used for electronically-submitted forms. VETS tracks notification of rights for electronically-submitted and manually-submitted claims through databases including a spreadsheet-based claims logging system.

    Recommendation: The Secretary of Labor should direct the Assistant Secretary for the Veterans' Employment and Training Service to develop guidance and oversight mechanisms to ensure that changes are entered into the USERRA database as the quarterly reporting data are updated.

    Agency Affected: Department of Labor

    Status: Closed - Implemented

    Comments: In response to our recommendation, DOL updated its Veteran's Employment and Training Service USERRA Operations Manual to include an instruction for investigation cases that the DOL official update the USERRA database whenever the complainant agrees to an extension to process his or her complaint, even when that agreement comes after the deadline has been reached and the case has administratively closed. DOL also issued a Director's Memorandum to establish new procedures for the handling of USERRA referral cases. According to the memorandum, DOL investigators are expected to arrange for data entry into the USERRA database of all appropriate DOL referral actions, as well as any DOL referral deadline extensions.

    Recommendation: The Secretary of Labor should direct the Assistant Secretary for the Veterans' Employment and Training Service to 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.

    Agency Affected: Department of Labor

    Status: Open

    Comments: As of August 2013, the Veterans Employment and Training Service (VETS) continues to experience difficulties in submitting USERRA reports within the 30-day deadline.

    Recommendation: The Attorney General should establish a system of internal controls for collecting, maintaining, processing, and checking reliability of data for the quarterly reports to Congress.

    Agency Affected: Department of Justice

    Status: Open

    Comments: (1) In November 2011, DOJ was in the process of transferring the data for quarterly USERRA reports to a new database. (2) As of August through end of September 2013, DOJ has not been able to provide a status of the recommendation and has recently (September) renewed efforts to determine the status.

    Recommendation: The Attorney General should 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.

    Agency Affected: Department of Justice

    Status: Open

    Comments: (1) As of November 2011, the Department of Justice had not implemented the recommendation. (2) As of June through September 2013, DOJ has been been able to determine the status of this recommendation. (3) As of end of September 2013, DOJ officials stated they have renewed efforts to determine the status of the recommendation.

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