This is the accessible text file for GAO report number GAO-06-60 
entitled 'Military Personnel: Federal Management of Servicemember 
Employment Rights Can Be Further Improved' which was released on 
October 20, 2005. 

This text file was formatted by the U.S. Government Accountability 
Office (GAO) to be accessible to users with visual impairments, as part 
of a longer term project to improve GAO products' accessibility. Every 
attempt has been made to maintain the structural and data integrity of 
the original printed product. Accessibility features, such as text 
descriptions of tables, consecutively numbered footnotes placed at the 
end of the file, and the text of agency comment letters, are provided 
but may not exactly duplicate the presentation or format of the printed 
version. The portable document format (PDF) file is an exact electronic 
replica of the printed version. We welcome your feedback. Please E-mail 
your comments regarding the contents or accessibility features of this 
document to Webmaster@gao.gov. 

This is a work of the U.S. government and is not subject to copyright 
protection in the United States. It may be reproduced and distributed 
in its entirety without further permission from GAO. Because this work 
may contain copyrighted images or other material, permission from the 
copyright holder may be necessary if you wish to reproduce this 
material separately. 

Report to the Ranking Minority Member, Committee on Health, Education, 
Labor, and Pensions, U.S. Senate: 

October 2005: 

Military Personnel: 

Federal Management of Servicemember Employment Rights Can Be Further 
Improved: 

GAO-06-60: 

GAO Highlights: 

Highlights of GAO-06-60, a report to the Ranking Minority Member, 
Committee on Health, Education, Labor, and Pensions, U.S. Senate: 

Why GAO Did This Study: 

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. 

What GAO Found: 

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. 

What GAO Recommends: 

GAO is making a number of recommendations to better identify USERRA 
compliance and employer support trends, more efficiently and 
effectively educate employers, increase agency responsiveness, and 
process USERRA complaints. DOD, DOL, and OSC concurred with the 
recommendations. DOJ did not comment on the draft report. To encourage 
results rather than outputs, Congress should consider designating a 
single office to maintain visibility over the entire complaint 
resolution process. 

www.gao.gov/cgi-bin/getrpt?GAO-06-60. 

To view the full product, including the scope and methodology, click on 
the link above. For more information, contact Derek B. Stewart (202) 
512-5559 or stewartd@gao.gov. 

[End of section] 

Contents: 

Letter: 

Results in Brief: 

Background: 

Agencies' Available Data Provides Limited Insight in Overall USERRA 
Compliance and Employer Support: 

Agencies Have Conducted Educational Outreach, but Efficiency and 
Effectiveness of Outreach Has Been Hindered by Lack of Employer 
Information: 

Agencies' Ability to Efficiently and Effectively Address Complaints 
Hampered by Incompatible Data Systems, Reliance on Paper Files, and 
Lack of Visibility: 

Conclusions: 

Recommendations for Executive Action: 

Matter for Congressional Consideration: 

Agencies Comments and Our Evaluation: 

Appendixes: 

Appendix I: Scope and Methodology: 

Appendix II: Professional Backgrounds of the ESGR's Volunteer 
Ombudsmen: 

Appendix III: Department of Labor Form 1010: 

Appendix IV: DOD's Outreach Programs: 

Appendix V: GAO's Survey of the ESGR's Volunteer Ombudsmen Including 
Results: 

Appendix VI: DOL's USERRA Information Poster: 

Appendix VII: Comments from the Department of Defense: 

Appendix VIII: Comments from the Department of Labor: 

Appendix IX: Comments from the Office of Special Counsel: 

Appendix X: GAO Contact and Staff Acknowledgments: 

Tables: 

Table 1: Formal Complaints Opened by the Department of Labor, Fiscal 
Years 1989 through 2004: 

Table 2: Data from GAO's Survey of the ESGR Ombudsmen: 

Table 3: Employment Status of the ESGR's Ombudsmen (as of April 6, 
2005): 

Table 4: The Primary Employers of the ESGR's Ombudsmen (as of April 6, 
2005): 

Figures: 

Figure 1: Process to Resolve a USERRA Complaint Using Federal 
Assistance: 

Figure 2: Percentages of Selected Reserve Members Surveyed Who Work for 
Various Types of Employers: 

Figure 3: Percentages of Selected Reserve Members Who Work for 
Employers of Various Sizes: 

Figure 4: Percentages of Ready Reserve Members Who Had Supplied 
Civilian Employment Information as of August 10, 2005: 

Letter October 19, 2005: 

The Honorable Edward M. Kennedy: 
Ranking Minority Member: 
Committee on Health, Education, Labor, and Pensions: 
United States Senate: 

Dear Senator Kennedy, 

The Uniformed Services Employment and Reemployment Rights Act (USERRA) 
of 1994[Footnote 1] protects millions of individuals[Footnote 2] as 
they transition between their federal duties and their civilian 
employment. Prior to USERRA, reemployment rights were set forth in the 
Vietnam Era Veterans' Readjustment Assistance Act of 1974.[Footnote 3] 
Following the 1991 Gulf War, military servicemembers and employers 
flooded the government with questions and complaints concerning 
reemployment rights. In 1994, following a review of the effectiveness 
of the 1974 act, Congress passed USERRA to "encourage non-career 
service in the uniformed services by eliminating or minimizing the 
disadvantages to civilian careers and employment which can result from 
such service." The act covers not only the more than 2 million members 
who have served in the reserve components[Footnote 4] of the armed 
services since the act was passed, but also large numbers of active 
duty servicemembers and veterans, including those who served before the 
act's passage. For example, citizens who left civilian jobs and signed 
active duty enlistment contracts following the events of September 11, 
2001, retain reemployment rights under USERRA as long as they meet a 
few basic requirements. Among the eligibility requirements are (1) the 
absence of the receipt of a dishonorable or other disqualifying 
discharge, (2) giving proper notice prior to departure and after return 
from service, and (3) returning within 5 years of departure or 
immediately after the expiration of their initial enlistment contracts, 
whichever is longer. 

Every individual in the country who serves in, has served in, or 
intends to serve in the uniformed services is potentially covered by 
USERRA. The act applies to a wide range of employers, including 
federal, state, and local governments as well as for-profit and not- 
for-profit private sector firms. Enforcement and implementation of 
USERRA is complex, with several federal agencies having specific and 
sometimes overlapping outreach, investigative, or enforcement roles. 
Along with the Department of Labor (DOL), the Department of Defense 
(DOD) is responsible for informing servicemembers and employers of 
their rights, benefits, and obligations under USERRA.[Footnote 5] Much 
of DOD's outreach is accomplished through its Employer Support of the 
Guard and Reserve (ESGR) organization. The ESGR performs most of its 
work through volunteers and specially-trained impartial ombudsmen who 
act as informal mediators for USERRA issues that arise between 
servicemembers and their employers. DOL, through the efforts of its 
Veterans' Employment and Training Service (VETS), is the avenue through 
which servicemembers file formal USERRA-related complaints[Footnote 6] 
against civilian employers. Representatives of VETS investigate USERRA 
complaints and try to resolve disputes, but if they are unable to 
resolve servicemember complaints, DOL informs the servicemembers that 
they may request to have their complaints referred to the Department of 
Justice (DOJ) or to the Office of Special Counsel (OSC). Unresolved 
complaints against private sector or state or local government 
employers are referred by DOL to DOJ to investigate, mediate, and 
litigate. Prior to February 8, 2005, unresolved complaints against 
federal executive agency employers were referred from DOL to OSC. Under 
a new demonstration project,[Footnote 7] OSC now receives some USERRA 
complaints directly from certain servicemembers. 

In light of the significant number of National Guard and Reserve 
members serving in the Global War on Terrorism who will be demobilized, 
returned to their civilian jobs, and possibly called back to duty, you 
requested that we review the efforts of certain federal agencies to 
support and enforce USERRA, specifically the activities of DOD, DOL, 
DOJ, and OSC. We agreed to address your immediate needs by first 
reviewing issues surrounding OSC's enforcement of USERRA in the federal 
sector. On October 6, 2004, we issued 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/cgi-
bin/getrpt?GAO-05-74R]. This report responds to your broader request to 
review the actions of the four federal agencies involved in carrying 
out USERRA responsibilities. Our objectives were to determine 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. 

To address our first objective, we collected, reviewed, and analyzed 
data from a wide variety of sources, including the four federal 
agencies that support and enforce USERRA. We analyzed the annual 
numbers of complaints filed with DOL and those referred from DOL to DOJ 
and OSC from fiscal year 1997 through the third quarter of fiscal year 
2005 to determine whether there were trends in the total referrals, or 
the referrals to either agency. We also reviewed the tabulations of 
responses from DOD's Defense Manpower Data Center (DMDC) May 2004 
projectable survey of reserve component members. We also conducted 
original analysis on the survey responses that addressed employment 
issues. In addition, we conducted a survey of the ESGR's ombudsmen to 
obtain information about their backgrounds and training as well as the 
numbers of complaints they had handled and resolved. We also reviewed 
data related to the ESGR's outreach and employer recognition programs. 
To address our second objective, we reviewed USERRA to determine agency 
roles and responsibilities in educating servicemembers and employers 
concerning USERRA, and we interviewed agency officials from DOD and DOL 
to determine how they carry out their USERRA educational outreach 
responsibilities. We also collected and analyzed data concerning DOD's 
and DOL's outreach activities. We interviewed DOJ and OSC officials to 
determine whether they were involved in any outreach activities. To 
address our third objective, we reviewed USERRA and the Veterans 
Benefits Improvement Act of 2004 to determine agency roles and 
responsibilities in processing USERRA complaints. We interviewed 
headquarters officials from the four agencies to determine how they 
pass complaint information among various offices. Further, we 
interviewed the ESGR ombudsmen and customer service center 
representatives, state ombudsmen coordinators, DOL investigators, and 
officials at two of DOL's regional offices and two of its solicitor's 
offices. We reviewed DOL hard copy files in two regional offices and 
compared the data in those files to electronic data from DOL's USERRA 
Information Management System. We also reviewed agency procedures for 
collecting and reporting information about the time required to address 
USERRA complaints. We determined that the agency data used in this 
report were sufficiently reliable for the purposes of this review, 
though the complaint data systems had some limitations that we discuss 
further in the report. We conducted our work from October 2004 through 
August 2005 in accordance with generally accepted government auditing 
standards. A more detailed description of our scope and methodology is 
provided in appendix I. 

Results in Brief: 

Whether overall USERRA compliance or employer support has increased, 
decreased, or remained steady is difficult to firmly establish; 
however, the federal agencies with responsibilities under USERRA have 
collected formal and informal complaint data and some employer support 
figures that provide limited insights into USERRA compliance or 
employer support. DOL's formal complaint numbers show a possible 
relationship with the level of the use of National Guard and Reserve 
members and the number of complaints. For example, DOL numbers show 
that formal complaints rose in fiscal years 1991 and 1992 following the 
substantial increase in the use of the reserve component for Operations 
Desert Shield and Desert Storm. The formal complaint numbers rose again 
between fiscal years 2001 and 2004 following the larger use of the 
reserve component for Operations Noble Eagle, Enduring Freedom, and 
Iraqi Freedom. However, DOL's formal complaints were generally lower in 
the years following USERRA's passage--ranging from 895 to 1,465 in 
fiscal years 1995 through 2004--than in the years prior to its passage 
in 1994, when they ranged from 1,208 to 2,537 between fiscal years 1989 
through 1994. Because relatively few complaints reach DOJ and OSC by 
design, formal complaint data from those agencies may not fully provide 
an accurate picture of USERRA compliance or employer support. Between 
fiscal years 1995 and 2004, annual formal complaints remained below 59 
at DOJ and below 21 at OSC. DOD data indicate that some employers are 
exceeding the requirements set forth in USERRA and providing their 
servicemember employees with "extra" benefits, but these data have 
limitations. DOD's employer support organization, ESGR, has only 1 full 
year of informal complaint data, so it will be several years before the 
ESGR can identify any meaningful trends in informal complaint numbers. 
Because informal complaint figures have not been captured on a 
consistent basis, agencies cannot know whether total complaints have 
been increasing, decreasing, or remaining steady. Furthermore, a 2004 
DOD survey showed that at least 72 percent of Selected Reserve members 
with USERRA problems never sought assistance for those problems. This 
raises questions as to whether complaint numbers alone can fully 
explain USERRA compliance and employer support. These types of 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 servicemembers 
and employers about USERRA, but the efficiency and effectiveness of 
agency outreach efforts are hindered by a lack of employer information, 
an issue that we previously reported and recommended that DOD address. 
The agencies' educational outreach efforts have ranged from placing 
USERRA information on agency Web sites and maintaining toll-free 
information lines, to conducting individual and group briefings. 
Despite these many general outreach efforts, agencies lack essential 
employer information needed to efficiently and effectively target 
outreach to employers who actually have servicemember employees. A 
March 21, 2003, memorandum from the Under Secretary of Defense for 
Personnel and Readiness required all members of the reserve components 
who are subject to being involuntarily called to active duty to provide 
DOD with their civilian employment information to assist the department 
in accomplishing its employer outreach. However, the services have not 
enforced this requirement and as of August 2005, about 40 percent of 
DOD's reserve component members who were subject to being called to 
active duty had not complied with the requirement to enter their 
civilian employer information into DOD's database. With limited 
employer data available to them, agencies have been restricted in their 
ability to efficiently and effectively target outreach to employers who 
actually have servicemember employees. Without complete information 
about the full expanse of servicemember employers, the federal agencies 
conducting outreach efforts have no assurance that they have informed 
all servicemember employers about USERRA rights and obligations. 

Agency abilities to efficiently and effectively address servicemember 
complaints, as intended by USERRA, are hampered by incompatible data 
systems, reliance on paper files, and a segmented process that lacks 
visibility. The speed with which servicemember USERRA complaints are 
addressed often hinges on efficient and effective information sharing 
among the agencies involved in the complaint resolution process. 
However, the automated systems that DOD, DOL, DOJ, and OSC use to 
capture data about USERRA complaints are not compatible with each 
other. As a result, information collection efforts are sometimes 
duplicated, which slows complaint processing times. In addition, 
agencies are unable to efficiently process complaints because they are 
forced to create, maintain, copy, and mail paper files due to the 
incompatible data systems. Although DOL maintains electronic complaint 
files, it relies on its paper files when transferring complaints and it 
also focuses its complaint file reviews on its paper files. This slows 
the transfer of complaints and limits the ability of DOL managers to 
conduct prompt, effective oversight of complaint files. In addition, 
the ability of agencies to monitor the efficiency and effectiveness of 
the complaint process is hampered by a lack of visibility and by the 
segmentation of responsibility for addressing complaints among several 
different agencies. The segmented complaint resolution process means 
that the agency officials who handle the complaints at various stages 
of the process generally have limited or no visibility over the other 
parts of the process for which they are not responsible. This prevents 
any one agency from monitoring the length of time it takes for a 
servicemember's complaint to be fully addressed, and leads agencies to 
focus on output figures for their portion of the complaint process 
rather than on overall federal responsiveness to complaints. As a 
result, agencies have developed goals that are oriented toward outputs 
of their agency's portion of the process rather than toward results 
regarding an individual servicemember's complaint. For example, agency 
goals address complaint processing times at different stages of the 
process, rather than the actual elapsed time servicemembers wait to 
have their complaints addressed. To highlight the difference between 
agency focuses on processing times and servicemember concerns with 
elapsed times, we reviewed complaints that had been closed and later 
reopened by VETS investigators. Specifically, we analyzed 52 complaints 
that were closed and reopened two or more times. Our analysis revealed 
substantial differences between the recorded processing times and the 
actual elapsed times for these complaints. The recorded processing 
times averaged 103 days. However, from the servicemembers' 
perspectives, it took much longer because the servicemembers actually 
waited an average of 619 days from the time they first filed their 
initial formal complaints with DOL until the time the complaints were 
fully addressed by DOL, DOJ, or OSC. 

We are making four recommendations in this report. First, to better 
identify USERRA compliance and employer support trends, we recommend 
that DOD include USERRA questions in its periodic surveys of 
servicemembers; second, to help educate employers about USERRA, we 
recommend that DOD take steps to enforce the requirement for 
servicemembers to report their civilian employment information, 
maintain the database on this civilian employment information, and 
share applicable employer information with DOL, OSC, and other federal 
agencies that educate employers about USERRA; third, to increase agency 
responsiveness to servicemember complaints, we recommend that DOD, DOL, 
DOJ, and OSC explore methods of electronically transferring information 
between agencies; fourth, to reduce the administrative burden on VETS 
investigators and improve the ability of VETS managers to provide 
effective, timely oversight of USERRA complaint processing, we 
recommend that the Secretary of Labor develop a plan to reduce agency 
reliance on paper files and fully adopt the agency's automated 
complaint file system. Further, to encourage results rather than 
outputs, Congress should consider designating a single office to 
maintain visibility over the entire complaint resolution process. 

In written comments on a draft of this report, DOD, DOL, and OSC 
generally concurred with our findings and recommendations to their 
respective agencies. DOJ reviewed a draft of this report and had no 
comments. DOD deferred to DOL, DOJ, and OSC regarding our 
recommendation for the agencies to explore methods of electronically 
transferring information between agencies. DOL and OSC commented on our 
matter for congressional consideration that Congress should consider 
designating a single office to maintain visibility over the entire 
complaint resolution process. DOL noted that the mandated OSC 
demonstration project is ongoing, and therefore, it would be premature 
to make any suggestions or recommendations for congressional or 
legislative action until the pilot has been completed. DOL did note 
that its office is uniquely situated to provide an overview of the 
entire complaint resolution process. OSC supported our matter and 
stated that OSC has unparalleled experience and expertise in 
administering federal sector employment complaints and prosecuting 
meritorious workplace violations before the Merit Systems Protection 
Board. OSC believes that their office is in the best position to be the 
overseer. We believe that the Congress is the best qualified to 
determine the identity of the overseer and the timing of this matter 
for congressional consideration. 

Background: 

USERRA Coverage and Protections: 

USERRA has extremely broad coverage, provides a wide range of 
protections, and applies over long time periods. The discrimination 
provisions of the law cover every individual who serves in, plans to 
serve in, or has served in the uniformed services of the United States. 
The law's reemployment and benefit provisions are applicable to some 
active duty military personnel as well as to National Guard and Reserve 
members. 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. It also applies in overseas workplaces that are owned or 
controlled by U.S. employers. 

Generally, servicemembers are entitled to the reemployment rights and 
benefits provided by USERRA if they meet certain conditions. These 
include having held a civilian job[Footnote 8] prior to call-up, 
serving fewer than 5 years of cumulative military service with respect 
to that employer,[Footnote 9] providing their employer with advance 
notice of their service requirement when possible, leaving service 
under honorable conditions, and reporting back to work or applying for 
reemployment in a timely manner. Provided servicemembers meet their 
USERRA requirements, they 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; 

* 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 based on the length of 
service; and: 

* non-seniority benefits that are available to other employees who are 
on leaves of absence. 

Figure 1 is a flowchart that shows servicemembers' options for 
receiving federal assistance with their USERRA complaints. While the 
flowchart shows several different paths for resolving employment 
problems, the chart does not show all of the options available to 
servicemembers. Some servicemembers have used members of their military 
chain-of-command to help them resolve problems with their employers. In 
addition, the ESGR is available to provide information and informal 
mediation of USERRA-related employment problems. The DOL offers 
assistance similar to the ESGR in that it provides information to 
employers and employees, and works to informally resolve USERRA-related 
employment problems. The DOL also receives formal complaints from 
servicemembers under USERRA. Another option that is available to 
servicemembers at any time is to hire a private attorney and to file a 
complaint against their employer in court (for private employers and 
state and local governments) or before the Merit Systems Protection 
Board (for federal employers). However, a working group from the 
American Bar Association found that many private attorneys are 
reluctant to take USERRA complaints because cases are not likely to 
result in large judgments or settlements. 

Figure 1: Process to Resolve a USERRA Complaint Using Federal 
Assistance: 

[See PDF for image] 

[End of figure] 

Federal Agencies' USERRA Roles and Responsibilities: 

The responsibility for enforcing and implementing USERRA is complex, 
involving several federal agencies. Under USERRA, specific outreach, 
investigative, and enforcement roles are assigned to DOD, DOL, DOJ, and 
OSC. 

Department of Defense: 

Most of the people entitled to USERRA rights and benefits earn their 
entitlement while serving in the military services. The Secretary of 
Defense shares responsibility with DOL for informing servicemembers and 
employers of their rights, benefits, and obligations under the act. The 
ESGR carries out this responsibility for DOD. The ESGR was established 
in 1972 to manage activities that maintain and enhance employers' 
support for the reserve components, and it has a goal to inform 
servicemembers and their employers of their respective USERRA rights 
and responsibilities. The Office of the Under Secretary of Defense 
(Personnel and Readiness) develops the policies, plans, and programs 
that manage the readiness of both active and reserve forces, and within 
that office, the Assistant Secretary of Defense for Reserve Affairs 
oversees the activities of the ESGR. 

The ESGR has a staff of about 55--18 civilians and 37 military 
personnel--at its national headquarters in Arlington, 
Virginia.[Footnote 10] However, much of the ESGR's work is done through 
its more than 4,000 volunteers who are organized into state 
committees.[Footnote 11] These volunteers help to educate both 
employers and servicemembers about USERRA, and a specially trained 
subgroup of about 800 volunteers serve as impartial ombudsmen who work 
to informally mediate USERRA issues that arise between servicemembers 
and their employers. While many volunteer ombudsmen are attorneys, 
human relations specialists, or have other backgrounds that assist them 
in their mediation work, all of the ESGR's ombudsmen are required to 
attend a 3-day training course before they handle servicemember 
complaints. (App. II contains additional information about the 
backgrounds of these volunteer ombudsmen.) Most USERRA-related 
complaints come to the ESGR through its toll-free telephone number (1- 
800-336-4590), which is answered at the ESGR's Customer Service Center 
in Millington, Tennessee. The customer service representatives in 
Tennessee screen calls, fill requests for information, and forward 
complaints that appear to have merit to volunteer ombudsmen, who are 
generally located geographically near the servicemembers. The 
complaints are often channeled through state ombudsmen 
coordinators.[Footnote 12] The ESGR's volunteer ombudsmen attempt to 
resolve pay-related USERRA complaints within 7 days and other USERRA 
complaints within 14 days. When ombudsmen cannot resolve servicemember 
complaints, they are to notify the servicemembers of the other options 
that are available to address complaints. The ombudsmen may then pass 
the complaints to the ESGR headquarters through their state ombudsman 
coordinators. 

Department of Labor: 

The Secretary of Labor has responsibility for providing assistance to 
servicemembers who claim USERRA rights and benefits.[Footnote 13] This 
responsibility is carried out primarily through the efforts of VETS. 
VETS is led by an assistant secretary who is supported by headquarters, 
regional, and state staff as well as local investigators. When a 
servicemember leaves active duty and a USERRA-related complaint 
develops against the servicemember's civilian employer, the 
servicemember can file a formal complaint at [Hyperlink, 
http://www.vets1010.dol.gov], or can file a printed copy of the 
complaint form, such as the one included in appendix III, with the 
Secretary of Labor. The complaint is then assigned to one of VETS's 
approximately 125 investigators, generally an investigator who is 
located close to the employer. These VETS investigators examine USERRA 
complaints and try to help the servicemembers and employers resolve 
their differences. The investigators also typically have a host of 
other responsibilities that support veterans' programs but that are not 
directly related to USERRA. The law gives DOL subpoena power over 
records and individuals to aid in its investigations, but officials 
note that subpoenas are used infrequently because the threat alone is 
usually enough to gain cooperation. The statute also states that the 
Secretary of Labor may use the assistance of volunteers and may request 
assistance from other agencies engaged in similar or related 
activities. When DOL is unable to resolve servicemember complaints, DOL 
informs the servicemembers that they may request to have their 
complaints referred. A complaint is referred to DOJ if it involves 
state or local governments or private employers or to OSC if it 
involves a federal executive agency. Before complaints are sent to DOJ 
or OSC, they are reviewed by a VETS regional office, which reviews the 
memorandums of referral to ensure that the investigations are thorough 
and that the documentation is accurate and sufficient. The referrals 
are also reviewed by a DOL regional solicitor's office to assess the 
complaints' legal basis. Both offices render opinions on the merits of 
the complaints. Even if both offices find that the complaints have no 
merit, DOL is required by the act to pass the complaints to DOJ or OSC 
if the servicemembers request referrals. 

Along with their investigation and mediation responsibilities, VETS 
investigators also conduct briefings to educate employers and 
servicemembers about USERRA requirements and responsibilities, and they 
field service-related employment and reemployment questions that are 
directed to their offices. These investigators are required to take 
three courses that train them in the basics of the USERRA law, advanced 
investigative techniques, and the differences between veterans' 
preference issues and USERRA discrimination issues. 

Under USERRA, the Secretary of Labor reports USERRA information to 
Congress on an annual basis,[Footnote 14] after consulting with the 
Attorney General and Special Counsel. The Secretary's report includes 
information about the number of complaints reviewed by DOL during the 
fiscal year for which the report is filed along with the number of 
complaints referred to DOJ or OSC. The annual report should also 
address the nature and status of each complaint and should state 
"whether there are any apparent patterns of violation." Finally, the 
report should include any recommendations for administrative or 
legislative action that the Secretary of Labor, the Attorney General, 
or Special Counsel consider necessary to effectively implement USERRA. 
USERRA also granted DOL authority to issue regulations that implement 
USERRA provisions for state and local government and private 
employers.[Footnote 15] In its most recent report to Congress,[Footnote 
16] the department did not note any apparent patterns of violation. DOL 
did note that it had published draft regulations implementing USERRA 
for the first time on September 20, 2004, and DOL has completed the 
evaluation of comments that were submitted in response to these draft 
regulations. DOL has submitted the final regulations to OMB for formal 
review prior to publication in the Federal Register, and publication is 
expected in the near future. 

Department of Justice: 

The Attorney General is assigned enforcement responsibilities under 
USERRA, but DOJ is not authorized to receive USERRA complaints directly 
from servicemembers. It investigates, mediates, and litigates only 
private sector or state or local government complaints that it receives 
from DOL. The Civil Division in DOJ was responsible for handling USERRA 
complaints until September 2004, when DOJ transferred responsibility to 
its Civil Rights Division, which handles other types of employment 
discrimination complaints not related to military service. The Civil 
Division procedures called for the division to review the complaint and 
either (1) decline representation and return the complaint to DOL's 
regional solicitor's office because the complaint lacked merit or (2) 
forward the complaint to the U.S. Attorney's Office for possible 
litigation. If the complaint was forwarded, the U.S. Attorney's Office 
would assign the complaint to an assistant U.S. attorney who would 
review the information in the DOL referral,[Footnote 17] and interview 
the servicemember and potential witnesses. The assistant U.S. attorney 
then would make a determination on the merits of the complaint. If the 
assistant U.S. attorney found that the complaint was meritorious and 
the U.S. attorney agreed, the U.S. attorney's Office would represent 
the servicemember. In these situations, the assistant U.S. attorney 
would contact the employer and try to resolve the matter without 
litigation. If that failed, the assistant U.S. attorney would file a 
complaint against the employer in federal district court. If the 
assistant U.S. attorney found that the complaint was not meritorious 
and the U.S. attorney agreed, the complaint would be referred back to 
DOL and the servicemember would have the option of seeking their own 
legal representation and filing a complaint against the employer in 
federal district court. A settlement could be negotiated at any stage 
of the process. In July 2005, the Civil Rights Division was still 
following these procedures pending sufficient experience with USERRA 
complaints to decide if new procedures are necessary. 

DOJ's Civil Rights Division attorneys are trained in handling 
discrimination complaints because they receive training on Title VII of 
the Civil Rights Act of 1964. In addition, according to DOJ officials, 
37 attorneys in the Employment Litigation Section received training on 
USERRA in March 2005 and also received a collection of reference 
documents relevant to USERRA. These attorneys are available to handle 
both civil rights and USERRA complaints. There are also 18 professional 
and 8 clerical staff who are trained on USERRA matters. 

Office of Special Counsel: 

Under USERRA, OSC is responsible for enforcing USERRA rights at federal 
executive agencies. Prior to February 8, 2005, OSC was not authorized 
to receive USERRA complaints directly from servicemembers and had to 
wait until DOL referred the complaints. However, under a demonstration 
project,[Footnote 18] OSC may now receive USERRA complaints against 
federal executive agencies directly from certain 
servicemembers.[Footnote 19] OSC recently established a six-person 
USERRA unit to investigate, mediate, and, as necessary, litigate USERRA 
complaints. Under the traditional procedures, when a servicemember 
employed by a federal executive agency requests to have his or her DOL 
complaint referred to OSC, DOL's regional solicitor sends a referral to 
OSC. While OSC takes the referral information into account, OSC 
conducts its own review of the facts and the law and comes to its own 
conclusions on the merits of the complaint. If the complaint is 
received directly from the servicemember, OSC conducts the 
investigation without DOL input. In either case, if OSC is satisfied 
that the servicemember is entitled to corrective action, OSC begins 
negotiations with the servicemember's federal employer. If an agreement 
cannot be reached, OSC may represent the servicemember before the Merit 
Systems Protection Board. If the Merit Systems Protection Board rules 
against the servicemember, OSC may appeal the decision to the U.S. 
Court of Appeals for the Federal Circuit. In instances where OSC finds 
that complaints do not have merit, it informs the servicemembers of its 
decision not to represent them and informs servicemembers that they 
have the right to take their claims to the Merit Systems Protection 
Board without OSC representation. 

OSC's USERRA unit consists of three investigators, two attorneys, and a 
unit chief, who is also an attorney. According to the unit chief, the 
members of the USERRA unit spend most of their time on USERRA 
complaints but they also handle some other prohibited personnel 
practice complaints. The specific USERRA training for the unit consists 
primarily of on-the-job and other informal training. 

DOD's Reserve Component Members' Employers: 

To support the personnel information needs of DOD, DMDC, which reports 
to the Under Secretary of Defense for Personnel and Readiness, surveys 
the attitudes and opinions of the DOD community on a wide range of 
personnel issues. In May 2004,[Footnote 20] DMDC surveyed a random 
sample of 55,794 Selected Reserve[Footnote 21] members who had at least 
6 months of service and who were below flag rank.[Footnote 22] Figures 
2 and 3 show the projected results from survey questions that asked 
employed survey respondents about their employers. Figure 2 shows that 
about 10 percent of employed Selected Reserve members are self-employed 
or work in family businesses. According to the figure, about 29 percent 
of Selected Reserve members below flag rank work for federal, state, or 
local governments. However, the federal government percentage in this 
figure is understated because DMDC's survey did not ask full-time 
National Guard and Selected Reserve members and military technicians-- 
DOD civilian employees who must be members of a National Guard or 
Reserve unit as a condition of their employment--the survey question 
from which these data are drawn. 

Figure 2: Percentages of Selected Reserve Members Surveyed Who Work for 
Various Types of Employers: 

[See PDF for image] 

Note: Percentages add to 101 percent due to rounding. The margins of 
error for each category are within +/-2 percent. 

[End of figure] 

Figure 3 shows that an estimated 45 percent of employed Selected 
Reserve members below flag rank are employed by large employers who 
have 1,000 or more total employees. The figure also shows that about 13 
percent of employed Selected Reserve members work for small employers 
who have 9 or fewer total employees. 

Figure 3: Percentages of Selected Reserve Members Who Work for 
Employers of Various Sizes: 

[See PDF for image] 

Note: Employer size is based on total employees. The margins of error 
for each category are within +/-2 percent. 

[End of figure] 

GAO's Prior Reports: 

We have issued prior reports concerning USERRA and, more generally, 
about the need for results-oriented government. Our prior USERRA work 
has examined issues pertaining to employer support and enforcement of 
USERRA complaints at OSC. Our work on results-oriented government 
examined how the federal government could shift toward a more results- 
oriented focus. 

Employer Support and USERRA: 

Since 2002, we have issued two reports related to employer support and 
USERRA. In our most recent report,[Footnote 23] we provided information 
on OSC's role in enforcing USERRA. The report found that: 

* separate OSC and DOL determinations generally agreed on the merits of 
servicemember complaints, 

* OSC took an average of about 145 days to process the 59 complaints it 
received between 1999 and 2003, and: 

* OSC had made changes that were designed to expedite the handling of 
current USERRA complaints and any influx of new complaints. 

In our earlier report,[Footnote 24] we addressed DOD's management of 
relations between reservists and their employers. Our report stated the 
following. 

* DOD had established a database to collect employer information from 
reserve component members on a voluntary basis in 2001. However, by May 
14, 2002, only about 11,000 servicemembers had entered employer 
information into the database. 

* DOD could not educate all employers concerning their USERRA rights 
and responsibilities because it viewed the Privacy Act as a constraint 
that prevented it from requiring reserve component members to provide 
civilian employer contact information. 

* Ombudsmen were not always available to field servicemember phone 
calls. 

* The ESGR did not have good data to determine the effectiveness of its 
outreach and mediation efforts. 

We made a number of recommendations to address these and other findings 
in the report. In response to our recommendations, DOD reevaluated its 
interpretation of the Privacy Act and issued a requirement that all 
Ready Reserve[Footnote 25] members provide contact information for 
their civilian employers to their military departments. DOD also began 
funneling calls to its volunteer ombudsmen through a central customer 
service center where information is logged into a database that is used 
to measure the ESGR's outreach and mediation efforts. 

Results-Oriented Government: 

We have issued a number of reports that address the need for federal 
agencies to manage for results. In 2004, we issued a report[Footnote 
26] that examined, among other things, the challenges agencies face in 
using performance information in management decisions and how the 
federal government can continue to shift toward a more results-oriented 
focus. The report noted that serious weaknesses persist, such as how 
agencies are coordinating with other entities to address common 
challenges and achieve common objectives. Moreover, mission 
fragmentation and overlap contribute to difficulties in addressing 
crosscutting issues, especially when those issues require a national 
focus. Other barriers to interagency cooperation include conflicting 
agency missions, jurisdiction issues, and incompatible procedures, 
data, and processes. These issues are particularly important in the 
context of USERRA implementation and enforcement. Since USERRA 
provisions are administered by four distinct agencies, coordination is 
imperative to successfully implement this law in the context of results-
oriented government. 

Agencies' Available Data Provides Limited Insight in Overall USERRA 
Compliance and Employer Support: 

DOL, DOJ, OSC, and DOD have formal and informal USERRA complaint data, 
and some employer support figures. DOL's formal complaint numbers show 
a possible relationship with the level of reserve component usage and 
the number of complaints. By design, DOJ and OSC formal complaint 
numbers are small, and may not provide a fully accurate picture of 
USERRA compliance or employer support. DOD data indicate that some 
employers are exceeding USERRA requirements; however, these data have 
limitations. DOD has only 1 full year of informal complaint data, so it 
will be several years before it has data that can identify any 
meaningful trends. Furthermore, data from a DOD survey indicate that 
most servicemembers do not seek assistance for their USERRA problems, 
which indicates that complaint data alone cannot fully explain USERRA 
compliance or employer support. 

DOL's Formal Complaint Numbers: 

Formal complaint numbers from DOL show a possible relationship with 
reserve component usage and the passage of USERRA. Table 1 contains 
DOL's formal complaint numbers and shows that DOL's formal complaint 
numbers rose significantly in fiscal year 1991 and remained high in 
fiscal year 1992. This increase followed DOD's activation[Footnote 27] 
of almost 270,000 reserve component members for Operations Desert 
Shield and Desert Storm. The table also shows an increase in complaints 
between fiscal years 2001 and 2004. This increase followed the 
activation of more than 300,000 reserve component members for 
Operations Noble Eagle, Enduring Freedom, and Iraqi Freedom. DOL's 
formal complaint data also show that complaints were generally lower in 
the years following USERRA's passage in 1994 than in the years prior to 
its passage. Table 1 shows that between fiscal years 1989 and 1994, 
DOL's annual formal complaint figures ranged from 1,208 to 2,537 but 
between fiscal years 1995 and 2004 the formal complaints were lower, 
ranging from 895 to 1,465. Finally, if complaints for the fourth 
quarter of fiscal year 2005 are consistent with the first three 
quarters, fiscal year 2005 complaint numbers could fall back to between 
the fiscal year 2002 and 2003 levels.[Footnote 28] However, two recent 
changes could affect the number of complaints filed with DOL. First, a 
demonstration project now allows OSC to receive complaints directly 
from certain servicemembers instead of having the complaints referred 
to OSC by DOL. Second, DOL implemented an electronic (Form 1010) 
complaint form that allows servicemembers to file complaints directly 
from the DOL Web site rather than mailing or hand-delivering complaint 
forms to their local VETS offices. 

Table 1: Formal Complaints Opened by the Department of Labor, Fiscal 
Years 1989 through 2004: 

Fiscal year: 1989; 
Number of complaints opened: 1,370. 

Fiscal year: 1990; 
Number of complaints opened: 1,534. 

Fiscal year: 1991; 
Number of complaints opened: 2,537. 

Fiscal year: 1992; 
Number of complaints opened: 2,332. 

Fiscal year: 1993; 
Number of complaints opened: 1,442. 

Fiscal year: 1994; 
Number of complaints opened: 1,208. 

Fiscal year: 1995; 
Number of complaints opened: 1,387. 

Fiscal year: 1996; 
Number of complaints opened: 1,270. 

Fiscal year: 1997; 
Number of complaints opened: 1,245. 

Fiscal year: 1998; 
Number of complaints opened: 1,051. 

Fiscal year: 1999; 
Number of complaints opened: 1,029. 

Fiscal year: 2000; 
Number of complaints opened: 929. 

Fiscal year: 2001; 
Number of complaints opened: 895. 

Fiscal year: 2002; 
Number of complaints opened: 1,195. 

Fiscal year: 2003; 
Number of complaints opened: 1,315. 

Fiscal year: 2004; 
Number of complaints opened: 1,465. 

Total; 
Number of complaints opened: 22,204. 

Average; 
Number of complaints opened: 1,388. 

Source: GAO analysis of DOL data. 

[End of table] 

Relatively few formal complaints reach DOJ and OSC each year since the 
formal process begins at DOL and complaints may be resolved there and 
not forwarded to DOJ or OSC. Thus, the number of formal complaint data 
from these two agencies is small and cannot be used to fully explain 
the relationship between complaints and USERRA compliance or employer 
support.[Footnote 29] Between fiscal years 1995 and 2004, formal 
complaints at DOJ ranged from 37 to 59 complaints each year. OSC's 
annual formal complaint numbers ranged from 1 to 21 over the same 
period.[Footnote 30] 

DOD Data Show Some Employers Are Exceeding USERRA Requirements: 

Data from DMDC and the ESGR show that some employers are exceeding 
USERRA requirements. DMDC's May 2004 survey found that many employers 
of Selected Reserve members had provided these members with extra 
benefits beyond those required by USERRA. Projections, which apply to 
more than 120,000 Selected Reserve members who were employed and had 
been activated in the 24 months prior to the survey,[Footnote 31] show 
that more than 26 percent of these members have employers who pay them 
salaries or differential pay[Footnote 32] for at least part of the time 
they are away from their civilian jobs performing military duties. 
Projections also show that more than 32 percent receive medical 
benefits that are not required by USERRA, and more than 30 percent 
receive other benefits above and beyond those required by USERRA. While 
these data indicate that some employers are exceeding USERRA, the DMDC 
data were collected only in 2004 and therefore cannot establish whether 
overall employer support is improving, steady, or declining. 

The ESGR data show increases in both employer awards and statements of 
support, but these increasing figures cover a relatively small group of 
employers. Servicemembers are increasingly nominating their employers 
for the ESGR's various employer support awards. "Patriot Award" 
employers may be recognized for simply complying with USERRA. However, 
higher level awards typically require support above and beyond USERRA 
requirements. According to the ESGR officials, award nominations have 
increased over the years, and in fiscal year 2004 servicemembers 
nominated their employers for more than 20,000 awards. The ESGR's 
"Above and Beyond" award is one of the higher level awards. It is 
awarded annually by the ESGR's state committees and recognizes 
employers who have exceeded USERRA requirements. Many employers have 
received this award over the years, and in fiscal year 2004 the ESGR's 
state committees recognized 1,058 employers with "Above and Beyond" 

awards.[Footnote 33] In addition to increases in awards, the ESGR 
figures show increases in the numbers of employers signing the ESGR 
"statements of support." In signing statements of support, employers 
acknowledge that they will comply with USERRA. Between 2000 and 2002, 
575 employers signed statements of support. In 2003, 1,228 employers 
signed the statements, and by July 26, 2005, the ESGR records showed 
that almost 6,000 employers had signed statements of support. The ESGR 
continues to solicit statements of support, but is now focusing its 
outreach efforts on a "5-star" program, which encourages employers to 
move beyond simple USERRA compliance to increasingly higher levels of 
employer support. (See app. IV for additional details.) Despite 
encouraging increases in the ESGR's employer support figures, the 
thousands of employers who have received awards or signed statements of 
support do not represent all the employers of the millions of 
servicemembers covered by USERRA. 

Informal Complaint Data: 

The absence of informal complaint data prevents linking the informal 
complaint numbers and the total number of complaints. It will be 
several years before the ESGR can identify any meaningful trends in 
informal complaint numbers because the ESGR has only 1 full year of 
informal complaint data in its central database. Until October 2003, 
the ESGR had a manual complaint tracking system that relied on monthly 
reports from its state committees to its national headquarters. Our 
2002 report[Footnote 34]reviewed the ESGR's effectiveness and found 
that the ESGR did not have an accurate count of the complaints handled 
by its ombudsmen. We found that reporting by ombudsmen had been 
sporadic and some states had gone an entire year without reporting any 
complaints at all. In 2003, the ESGR began funneling calls to its 
ombudsmen through a central call center where the complaint information 
is logged into a centralized database before assigning the complaint to 
an ombudsman. As a result of the changed procedures, the ESGR is now 
able to track the complaints handled by each of its nearly 800 
ombudsmen. After they have been assigned a complaint, ombudsmen can 
access, review, update, and close assigned complaints, but they cannot 
create new complaint files in the database. Although the database now 
captures the informal complaints brought to the ESGR, at the time of 
our review the ESGR had only collected 1 full year of complaint data-- 
fiscal year 2004. Because informal complaint figures have not been 
captured annually, agencies cannot know whether informal complaints 
have been increasing, decreasing, or remaining steady. 

Available data suggest that the number of informal complaints handled 
by the ESGR is large enough that if annual data were available, the 
volume of informal complaints could overshadow that of DOL's formal 
complaint data. We conducted a survey to collect information about the 
workload, backgrounds, and training of the ESGR's ombudsmen because the 
ESGR lacked complete and accurate ombudsmen data. We surveyed all of 
the 831 ombudsmen that the ESGR headquarters officials told us were 
available to handle complaints as of April 6, 2005. Of the 831 
ombudsmen, 618 responded to our survey but 52 said they were not 
available to handle complaints as of April 6, 2005. (See app. V for a 
complete list of our survey questions and results.) Our survey asked 
the ombudsmen how many complaints they had handled and resolved since 
becoming ombudsmen.[Footnote 35] Survey responses showed that the 
ombudsmen who were available to handle complaints on April 6, 2005, had 
handled 37,684 complaints. Although this figure does not cover a 
specific time period, it far exceeds the 22,204 formal complaints 
handled by DOL between 1989 and 2004. DMDC survey data also suggest 
that informal complaint numbers could overshadow formal complaint 
numbers. Projections from DMDC's May 2004 survey show that between 54 
and 78 percent of Selected Reserve members with USERRA problems seek 
assistance from the ESGR but only between 16 and 36 percent seek 
assistance from VETS. Cross tabulations of survey responses further 
showed that servicemembers who had received USERRA briefings were more 
likely to seek assistance from the ESGR than those who had never been 
briefed. Conversely, the cross tabulations showed that servicemembers 
who had received USERRA briefings were less likely to turn to VETS for 
assistance than those who had never been briefed. If this pattern 
continues, as more servicemembers are briefed about their USERRA 
rights, servicemembers may file more informal complaints and fewer 
formal complaints. 

Agency Complaint Numbers Do Not Appear to Capture Most USERRA Problems: 

DMDC survey data indicate that formal and informal complaint numbers do 
not capture most USERRA problems experienced by servicemembers because 
most servicemembers do not seek assistance for their USERRA problems. 
In the spring of 2004, DMDC surveyed a random sample of 55,794 Selected 
Reserve members and received responses from more than 19,000 of these 
members. Survey respondents were asked about their civilian work 
experiences, reserve component programs and affiliations, and 
activations, and were asked a series of questions related to USERRA if 
they: 

* were not full-time National Guard or Reserve members, or military 
technicians; 

* were not on active duty when they completed the survey; 

* were employed during the week prior to the time when they completed 
the survey, or during the week prior to their activation; and: 

* had been activated during the 24 months prior to the time when they 
completed the survey. 

The survey respondents who met these criteria were first asked if, 
despite their USERRA protection, they had experienced any of a series 
of USERRA problems. The survey projections show that between 4 and 8 
percent of the 119,761 Selected Reserve members who met the criteria 
above did not receive prompt reemployment upon their return from 
military service; between 9 and 14 percent experienced a loss of 
seniority, seniority-related pay, or seniority-related benefits; and 
between 5 and 9 percent did not receive immediate reinstatement of 
employer-provided health insurance. The survey yielded similar results 
for other USERRA problems listed in the survey question.[Footnote 36] 
The survey respondents who experienced one or more problems were then 
asked if they had sought assistance for their problems. Survey results 
show that only between 18 and 28 percent of the 42,119 Selected Reserve 
members who had USERRA problems sought assistance for the problems. 
Therefore, at least 72 percent of the Selected Reserve members who had 
experienced USERRA problems never filed a complaint, either formal or 
informal, to seek assistance in resolving their problems. In a separate 
question, all of the Selected Reserve members who had responded to the 
survey were asked if they had ever filed a formal USERRA complaint with 
DOL/VETS. The survey results show that less than 2 percent of the more 
than 776,381 Selected Reserve members in the survey population have 
ever filed a formal USERRA complaint with DOL/VETS. The large 
percentage of servicemembers who fail to file either formal or informal 
complaints indicate that complaint data alone may be insufficient to 
fully explain USERRA compliance or employer support. Without periodic 
surveys of employment issues, such as DMDC's May 2004 survey, DOD will 
continue to have difficulties determining trends in USERRA compliance 
and employer support. 

Agencies Have Conducted Educational Outreach, but Efficiency and 
Effectiveness of Outreach Has Been Hindered by Lack of Employer 
Information: 

Agencies have taken actions to educate hundreds of thousands of 
servicemembers and employers about USERRA, but the efficiency and 
effectiveness of agency outreach actions are hindered by a lack of 
employer information. DOD, DOL, and OSC have conducted educational 
outreach using a variety of means, such as individual and group 
briefings, Web sites, and telephone information lines. However, 
agencies have been restricted in their ability to efficiently and 
effectively target educational outreach actions to employers who 
actually have servicemember employees because only limited employer 
information is available. 

Agencies Have Used a Variety of Means to Conduct Outreach: 

DOD, DOL, and OSC have used a variety of means to educate 
servicemembers and employers about USERRA, such as individual and group 
briefings, Web sites, and telephone information lines. According to 
agency officials and employers, one of the primary reasons employers 
violate USERRA is their lack of knowledge about the law's 
requirements.[Footnote 37] USERRA assigns DOD and DOL responsibilities 
for informing servicemembers and their employers about their USERRA 
rights, benefits, and obligations, but it gives the agencies 
flexibility to determine the appropriate means for conducting this 
outreach.[Footnote 38] DOD and DOL have used this flexibility to 
conduct educational outreach through a wide variety of means. Group 
briefings are one of the primary means these agencies use to educate 
employers and servicemembers about the law. However, they also have 
USERRA information on their agency Web sites, and headquarters and 
field representatives respond to individual requests for information 
through toll-free phone lines.[Footnote 39] Between September 11, 2001, 
and June 30, 2005, VETS staff responded to more than 34,000 requests 
for USERRA information[Footnote 40] and conducted briefings for more 
than 247,000 people. DOL also made a USERRA poster available for 
employers to post in their workplaces as a means of complying with the 
requirements set forth in the Veterans Benefits Improvement Act, which 
was enacted in December 2004. The poster is on the VETS Web site and is 
included as appendix VI of this report. The poster does not include any 
information about OSC's role in providing assistance on USERRA 
problems, even though OSC told us that they have requested that DOL 
include information about OSC's role. DOD also conducts a wide range of 
outreach actions. Some activities, such as the ESGR statements of 
support and awards, were discussed earlier in this report, and appendix 
IV contains information on many of DOD's other outreach programs. 
Although not required by USERRA, OSC also has taken actions to educate 
federal employers about their responsibilities under the law. OSC 
officials have conducted USERRA briefings for executive branch 
employees and managers and other groups. For example, they have 
conducted briefings at recent federal dispute resolution conferences 
and for the District of Columbia Bar Association. OSC's Web site also 
contains information about USERRA, contact information for complaints 
or questions, and information about OSC's ongoing demonstration 
project.[Footnote 41] 

Efficiency and Effectiveness of Employer Outreach Efforts Are Hindered 
by Lack of Employer Information: 

Agencies have been restricted in their ability to efficiently and 
effectively target educational outreach actions to employers who 
actually have servicemember employees, because only limited employer 
information is available. To accomplish its employer outreach 
requirements, DOD established a database and a policy requiring 
collection of these data. However, information collection efforts are 
incomplete, which impedes agencies' ability to communicate with 
employers who have servicemember employees. 

DOD Has a Policy and Means for Collecting Essential Employer 
Information: 

In 2001, DOD established a database to voluntarily collect employer 
information from reserve component members, but few servicemembers 
submitted the data, and following a recommendation in our 2002 
report,[Footnote 42] DOD made the submission of employer information 
mandatory. On March 21, 2003, the Under Secretary of Defense for 
Personnel and Readiness signed a memorandum mandating the collection of 
employer information. The memorandum directed the military departments 
to immediately implement a civilian employment information program for 
National Guard and Reserve members subject to involuntary recall to 
active duty. This memorandum required that all members of the reserve 
components provide employment-related information upon assignment to 
the Ready Reserve[Footnote 43] and at other times determined by their 
respective military departments. According to the Under Secretary's 
memorandum, one of the purposes for collecting the employer information 
is to "utilize (the information) on a recurring basis to assist the 
Department in accomplishing its employer outreach purposes under 38 
U.S.C. 4333." The information required by the memorandum included 
employment status, employer's name, employer's complete mailing 
address, member's civilian job title, and the servicemember's length of 
experience in their civilian occupation. The memorandum indicated 
members who refuse to provide information or who provide false 
information may be subject to administrative action or punishment for 
dereliction of duty under the Uniform Code of Military Justice. 

The memorandum assigned unit commanders the responsibility for ensuring 
that their Selected Reserve members were familiar with the memorandum's 
requirements and provided adequate time to comply with the requirements 
during training periods. The military departments were assigned 
responsibility for ensuring the compliance of other Ready Reserve 
members. According to DOD officials, reserve component members with a 
computer and Internet access can enter their employer information into 
DOD's database from home or they can enter the information at their 
units during normal training periods. The employer database is linked 
to the defense enrollment eligibility reporting system. Therefore, if 
reserve component members check on their dependents' eligibility for 
health care or enter their dependents into the system, they can also 
take the opportunity to enter or update their employer information. 

Collection of Employer Information Is Improving, but Incomplete Data 
Impede the Efficiency and Effectiveness of Agencies' Outreach: 

The collection of employer information is improving but, more than 2 
years after the Under Secretary called for the immediate implementation 
of a civilian employment information program, collection efforts are 
still incomplete, which impedes the efficiency and effectiveness of 
agencies' outreach efforts. As of August 2005, about 40 percent of 
DOD's Ready Reserve members had not entered their civilian employer 
information into DOD's database. The percentage of Selected Reserve 
members who have complied with the requirement to enter their 
employment information into the database has risen substantially over 
the past year--from 13 percent in October 2004, to 58 percent in April 
2005, to 73 percent in August 2005, when we ended our review. Figure 4 
shows the compliance rates for Selected Reserve members in each of the 
seven reserve components, as well as the compliance rates for 
Individual Ready Reserve and Inactive National Guard members in the six 
components where they serve. (The Air National Guard does not have any 
Inactive National Guard or Individual Ready Reserve members.) Figure 4 
illustrates that compliance rates vary by reserve component, supporting 
the assertion of DOD officials that compliance rates are tied to 
command attention and enforcement. Compliance rates are substantially 
lower for Inactive National Guard and Individual Ready Reserve members 
than they are for Selected Reserve members, further reflecting the lack 
of enforcement of the policy. Responsible DOD officials said that as 
far as they knew, the military departments had not enforced this policy 
by subjecting any servicemembers to punishment or administrative action 
for failing to comply with the policy. 

Figure 4: Percentages of Ready Reserve Members Who Had Supplied 
Civilian Employment Information as of August 10, 2005: 

[See PDF for image] 

[End of figure] 

Since Individual Ready Reserve members do not participate in any 
regular training and have been recalled to active duty less frequently 
than Selected Reserve members, the employers of Individual Ready 
Reserve members may be unaware that their employees have a military 
obligation and that they, as employers of servicemembers, have USERRA 
obligations. Therefore, outreach to these employers may be even more 
important than outreach to employers of Selected Reserve members. 
Between September 11, 2001, and June 30, 2005, more than 9,500 
Individual Ready Reserve members had been recalled to active duty, with 
more than 4,500 coming from the Army Reserve and more than 4,200 from 
the Marine Corps Reserve.[Footnote 44] Despite these activations, 
figure 4 shows that only 10 percent of the Individual Ready Reserve 
members in the Army Reserve and only 16 percent in the Marine Corps 
Reserve had entered their employer information into DOD's database. 

In the absence of full compliance with the requirement for 
servicemembers to provide civilian employer information, agencies' 
abilities to conduct outreach to educate employers about USERRA has 
been hindered. Agencies have conducted many general outreach efforts 
but have been restricted in their ability to efficiently and 
effectively target outreach to employers who actually have 
servicemember employees. With limited employer data available, DOD is 
unable to share this information with the other federal agencies that 
perform employer outreach so that agencies can coordinate their 
activities to reach all the employers of servicemembers who are covered 
by USERRA. Without complete information about the full expanse of 
servicemember employers, the federal agencies conducting outreach 
efforts have no assurance that they have informed all servicemember 
employers about USERRA rights, benefits, and obligations. Therefore, 
agency outreach efforts are likely to be reaching some employers who do 
not have any servicemember employees while neglecting other employers 
who do have servicemember employees. 

Agencies' Ability to Efficiently and Effectively Address Complaints 
Hampered by Incompatible Data Systems, Reliance on Paper Files, and 
Lack of Visibility: 

A segmented process with incompatible data systems hampers agencies' 
abilities to efficiently and effectively address servicemembers' 
complaints and report results as intended by USERRA. The speed with 
which servicemembers' USERRA complaints are addressed often hinges on 
efficient and effective information sharing among the agencies involved 
in the complaint resolution process; however, DOD, DOL, DOJ, and OSC 
use incompatible data systems to track USERRA complaints. This impedes 
information sharing and can lead to duplicative efforts that slow 
processing times. In addition, the use of paper files to transfer 
complaints among offices limits the agencies' abilities to efficiently 
process complaints and increases complaint processing times. 
Furthermore, agencies' abilities to monitor the extent to which 
complaints are efficiently and effectively addressed are hampered by a 
lack of visibility and by the segmentation of responsibilities for 
addressing complaints among several different agencies. 

Incompatible Data Systems Hamper Ability to Address Complaints: 

The ability of DOD, DOL, DOJ, and OSC to effectively and efficiently 
address USERRA complaints has been hampered by the use of five 
different and incompatible automated systems to capture data about 
USERRA complaints. DOD, OSC, and DOJ[Footnote 45] each operate one 
system and DOL operates two systems, one for its VETS offices and 
another for its solicitors' offices. Because the systems were created 
for different purposes, they do not capture the same data. The ESGR and 
VETS systems are complaint file systems that can contain extensive 
ombudsmen or investigator notes and details about individual 
complaints. The other three systems are used primarily for tracking 
purposes and do not capture extensive details about individual cases. 
Even when data fields in the different systems bear similar names, the 
information contained in the fields may not match. For example, in 
DOJ's Interactive Case Management System, the date closed means that 
final action has taken place on the complaint. In contrast, in the VETS 
system, the closed date can mean several different things, such as the 
date the investigator resolved the complaint, the date the 
servicemember requested to have his or her complaint referred to DOJ or 
OSC, or the date the complaint was withdrawn by the servicemember. 
During the course of our review, we attempted to compare complaint data 
from the VETS system to data from the DOL solicitor, DOJ, and OSC 
systems. Because the systems captured data differently, we were not 
able to perfectly match the data during any of these attempts. In some 
cases we were able to match dates from the different systems, in other 
cases dates differed, and in still other cases we could not even 
identify the matching complaint files. Because DOL could not identify 
complaints that had been handled by the ESGR, we did not attempt to 
match DOL and the ESGR files.[Footnote 46] 

The inability of ombudsmen, investigators, and other officials to share 
complaint information by electronically transferring information among 
their systems or accessing each other's systems may result in duplicate 
efforts to collect identical information that is needed to investigate 
and process USERRA complaints. For example, during informal mediation 
efforts, DOD's approximately 800 ombudsmen may gather pertinent 
information and documentation that concerns servicemember eligibility 
for USERRA coverage; civilian supervisors; employer policies and 
organizational structures, including information about who makes 
employment decisions; circumstances surrounding the alleged USERRA 
violations; and witness statements. However, if ombudsmen efforts do 
not resolve the complaints and the servicemembers elect to file formal 
DOL complaints, the ESGR officials cannot transfer information from 
their database directly to DOL's database, and DOL investigators do not 
have access to the ESGR's database. As a result of this inability to 
share information, VETS investigators sometimes start their 
investigations with nothing more than the basic information included on 
the formal complaint form, and they later contact servicemembers and 
employer representatives to request the exact same information that was 
previously provided to the ESGR ombudsmen. These duplicative efforts 
slow complaint processing times, increase the times that servicemembers 
must wait to have their complaints fully addressed, and may frustrate 
servicemembers or employers. Likewise, DOL cannot transfer information 
from the VETS database to DOJ, OSC, or even to DOL's solicitors' 
offices, and people in these other offices do not have access to the 
VETS database. As a result, officials in these other offices may 
contact the servicemember or employer and again request information 
that had been previously provided to the ESGR or VETS. 

Reliance on Paper Files Limits Ability to Efficiently Address and 
Oversee Complaints: 

As complaints are referred from one office to another, agencies are 
unable to efficiently process complaints because they are forced to 
create, maintain, copy, and mail paper files due to the incompatible 
data systems. For example, when a servicemember asks a VETS 
investigator to refer his or her complaint to DOJ or OSC, the 
investigator cannot electronically transfer the complaint information 
to the requisite offices. Instead, the investigator prepares and mails 
a paper complaint file to a VETS regional office where the file is 
reviewed, added to, and then mailed or hand carried to a DOL 
solicitor's office. The solicitor's office then reviews the file, adds 
a legal opinion concerning the merits of the complaint, and mails the 
file to OSC or DOJ. Because VETS investigators cannot electronically 
transfer information when they refer complaints, they face the 
administrative burden of maintaining both paper and electronic 
complaint files that contain much of the same information. 

This reliance on paper files results in increased complaint processing 
times and can limit managers' abilities to provide effective and timely 
oversight. When complaint numbers are large, managers can exercise more 
efficient and effective oversight of electronic complaint files that 
are stored in automated systems with query capabilities than of 
geographically dispersed paper complaint files. Of the four federal 
agencies we reviewed, only the agencies that deal with large numbers of 
complaint files--DOD and DOL--had electronic complaint files that were 
stored in automated systems with query capabilities that facilitate 
oversight. However, DOL still considers its paper complaint files its 
official records, and the VETS operations manual outlines management 
oversight and internal control procedures that focus on reviews of the 
investigators' paper files. Because the paper files are located in VETS 
offices in all 50 states, the District of Columbia, and Puerto Rico, 
paper file reviews take longer than electronic file reviews, and 
managers can lose visibility of paper case files. For example, during 
our visits to two regional VETS offices, we judgmentally selected 64 
complaints and asked to review the paper complaint files to compare the 
data in those files to information in the VETS automated system. 
Officials located 60[Footnote 47] of the 64 paper files we requested, 
but 8 weeks after our visit to one office, officials were still unable 
to locate the other 4 files and concluded that the files had been 
misplaced or lost.[Footnote 48] In addition, our review of data from 
the VETS automated database identified a number of issues that 
warranted management attention. However, the VETS reviews of sample 
paper files had not addressed the full scope of these problems in a 
timely manner. For example, we were able to quickly identify more than 
430 complaints that had been closed and then reopened, and we were also 
able to identify that a large portion of these reopened cases occurred 
in a single region, many with a single investigator.[Footnote 49] If 
VETS oversight procedures had focused on electronic file review rather 
than paper file review, corrective action could have been taken sooner 
on cases that were improperly closed.[Footnote 50] 

Segmented Responsibilities and Lack of Visibility Impedes Ability to 
Monitor and Report the Extent to Which Complaints Are Efficiently and 
Effectively Addressed: 

The ability of agencies to monitor the efficiency and effectiveness of 
the complaint process is hampered by a lack of visibility and by the 
segmentation of responsibility for addressing complaints among several 
different agencies. From the time informal complaints are filed with 
the ESGR through the final resolution of formal complaints at DOL, DOJ, 
or OSC, no one has visibility over the entire process. The segmented 
complaint resolution process means that the agency officials who handle 
the complaint at various stages of the process generally have limited 
or no visibility over the other parts of the process for which they are 
not responsible. This prevents any one agency from monitoring the 
length of time it takes for a servicemember's complaint to be fully 
addressed, and leads agencies to focus on output figures for their 
portion of the complaint process rather than on overall federal 
responsiveness to complaints. As a result, agencies have developed 
goals that are oriented toward outputs of their agency's portion of the 
process rather than toward results for an individual servicemember's 
complaint. For example, agency goals address complaint processing times 
at different stages of the process,[Footnote 51] but agencies do not 
measure a result of primary concern to servicemembers--the elapsed time 
between the bringing of a complaint to a federal agency and the 
complaint's final resolution. Due to the incompatibility of agency 
systems and the lack of visibility across agencies, we were not able to 
track the entire elapsed time that servicemembers wait to have their 
complaints fully addressed. However, the VETS database attempts to 
capture processing times from the time a servicemember files a formal 
complaint until the time the complaint is finally resolved by VETS, 
DOL's solicitor's office, DOJ, or OSC.[Footnote 52] To highlight the 
difference between agency focuses on processing times and servicemember 
concerns with elapsed times, we reviewed complaints that had been 
closed and later reopened by VETS investigators.[Footnote 53] Between 
October 1, 1996, and June 30, 2005, servicemembers filed 10,061 formal 
complaints with DOL. More than 430 of these complaints were closed and 
later reopened, and 52 of the 430 complaints were closed and reopened 
two or more times. For example, one investigator opened a complaint 
file on September 30, 2001, and then closed and reopened the complaint 
six times before finally referring the complaint to the VETS regional 
office on September 9, 2002. We analyzed the processing times and 
elapsed times for the 52 complaints that had been closed and reopened 
two or more times and found substantial differences between the 
figures. DOL's system assigned separate complaint numbers to the 52 
complaints each time the complaint was opened or reopened.[Footnote 54] 
As a result, the system recorded the average processing time as 103 
days. However, from the servicemembers' perspectives, it took much 
longer for DOL, DOJ, and OSC to address their complaints.[Footnote 55] 
The servicemembers who filed the 52 complaints actually waited an 
average of 619 days from the time they first filed their initial formal 
complaints with DOL until the time the complaints were fully addressed 
by DOL, DOJ, or OSC.[Footnote 56] Because agency officials do not have 
visibility over the entire complaint resolution process and no one has 
information about the time it takes federal agencies to fully address 
servicemember complaints, the Secretary of Labor, Attorney General, and 
Special Counsel cannot evaluate the full range of administrative or 
legislative actions that may be necessary to effectively implement 
USERRA, and the Secretary of Labor's annual report to Congress cannot 
be as accurate and complete as required.[Footnote 57] 

Conclusions: 

Informal and formal complaint data from the agencies responsible for 
enforcing and implementing USERRA do not support the analysis needed to 
determine if employer compliance with USERRA and support for the act's 
purpose has improved since passage of the act in 1994. The responsible 
agencies collect data and some insight may be gained from DOL's formal 
complaint numbers. However, the numbers from DOJ and OSC are small and 
cannot be used to fully explain the relationship between complaints and 
USERRA compliance or employer support, and DOD's data collection effort 
is so new that meaningful trends cannot yet be identified using 
informal complaint data. Complaint data alone may not accurately 
reflect the problems servicemembers are experiencing transitioning 
between their federal service and civilian employment. The vast 
majority of surveyed National Guard and Reserve members who experienced 
USERRA-related problems did not seek assistance for their problems. The 
survey data do not lend themselves to the analysis needed to determine 
if the problems were resolved to the servicemember's satisfaction. DOD 
periodically conducts these surveys to identify issues that need to be 
addressed or monitored. However, questions on the surveys vary from 
year to year and have not always included those pertaining to USERRA 
compliance and employer support. Periodic, projectable surveys of the 
servicemembers who are covered by USERRA could provide DOD, DOL, DOJ, 
and OSC with a means to determine whether or not USERRA compliance and 
employer support is improving and thus, USERRA's purpose--to minimize 
employment disadvantages that can result from service in the uniformed 
service--is being achieved. 

Employer violation of USERRA is often attributed to employers' lack of 
knowledge about the law's requirements. Having a means to identify the 
civilian employers of servicemembers who are covered by USERRA is 
essential to effectively and efficiently target the agencies' 
educational outreach efforts. DOD has made progress establishing a 
civilian employer database. However, DOD has not taken steps to enforce 
its requirement for National Guard and Reserve members to enter and 
maintain their civilian employer data. Until complete employer 
information is obtained, agency outreach efforts are likely to be 
reaching some employers who do not have any servicemember employees, 
while neglecting other employers who do have servicemember employees. 

Currently, DOD's ESGR, DOL's VETS and solicitors' offices, DOJ, and OSC 
all operate their own automated systems for tracking USERRA complaints. 
Officials from each agency have access to their own system but they 
cannot access complaint information in the automated systems of the 
other agencies, and complaint data cannot be electronically transferred 
from one system to another. As a result, officials from different 
agencies sometimes spend time collecting information that has already 
been provided to another agency. This slows the complaint resolution 
process. In addition, because data systems are incompatible, formal 
referrals from VETS investigators to DOJ or OSC must be accompanied by 
a paper file, which is first routed through a VETS regional office and 
a DOL solicitor's office. The creation, maintenance, and transfer of 
these paper files add to complaint processing times and the time 
servicemembers wait to have their complaints addressed. As long as 
agency systems remain segmented and incompatible and referral 
information is passed through the mail, complaints will continue to be 
processed inefficiently. 

VETS investigators are geographically dispersed across the country and 
they maintain both paper and electronic USERRA complaint files. 
Managers with the requisite level of authority can have virtually 
instant access to every electronic complaint file from every 
investigator across the country. However, DOL considers its paper 
complaint files its official records. As a result, the VETS operating 
procedures and internal controls are geared toward the review of the 
paper complaint files. These paper reviews are time consuming. In 
addition, paper files can be misplaced or lost when they are moved from 
office to office. Until VETS switches to electronic files, 
investigators will continue the inefficient practice of maintaining 
duplicate records and managers will be limited in their ability to 
provide timely oversight and effective corrective actions for any 
problems that arise. 

The responsibility for enforcing and implementing USERRA is complex, 
involving several federal agencies. A single complaint can start at DOD 
and flow through three different DOL offices before finally being 
resolved at DOJ or OSC. The segmented complaint resolution process 
means that the agency officials who handle the complaint at various 
stages of the process generally have limited or no visibility over the 
other parts of the process for which they are not responsible. As a 
result, agency officials have not addressed complaint processing issues 
that cut across federal agencies or set outcome-oriented goals. 
Instead, agencies have focused their goals on outputs from their 
particular portions of the complaint process rather than focusing on 
overall federal responsiveness to USERRA complaints. Meanwhile, the 
servicemember knows how much time is passing since the initial 
complaint was filed. Under USERRA, specific outreach, investigative, 
and enforcement roles are assigned to DOD, DOL, DOJ, and OSC. However, 
no agency has visibility over the entire complaint process. Therefore, 
it is difficult for the responsible agencies to achieve their common 
goal-to minimize the employment disadvantages that can result from 
service in the uniformed service, and the time servicemembers wait to 
have their complaints fully addressed-which is of great importance to 
servicemembers. Furthermore, the Secretary of Labor's annual reports 
will not provide Congress with a complete and accurate picture of 
USERRA violation patterns or the legislative actions that may be 
necessary to effectively implement the act. 

Recommendations for Executive Action: 

To gauge the effectiveness of federal actions to support USERRA by 
identifying trends in USERRA compliance and employer support, we 
recommend that the Secretary of Defense 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; 

* if they experience these problems, from whom they seek assistance; 

* if they do not seek assistance, why not; and: 

* the extent to which servicemember employers provide support beyond 
that required by the law. 

To more efficiently and effectively educate employers about USERRA 
through coordinated outreach efforts, which target employers with 
servicemember employees, we recommend that the Secretary of Defense 
take the following two actions: 

* 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. 

* 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. 

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

To reduce the administrative burden on VETS investigators and improve 
the ability of VETS managers to provide effective, timely oversight of 
USERRA complaint processing, we recommend that the Secretary of Labor 
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. 

Matter for Congressional Consideration: 

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 should 
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. 

Agencies Comments and Our Evaluation: 

In written comments on a draft of this report, DOD, DOL, and OSC 
generally concurred with our findings and recommendations to their 
respective agencies. DOJ reviewed a draft of this report and had no 
comments on this report. DOD deferred to DOL, DOJ, and OSC regarding 
our recommendation for the agencies to develop procedures or systems to 
enable the electronic transfer of complaint information between 
agencies. DOL and OSC commented on our matter for congressional 
consideration that Congress should consider designating a single office 
to maintain visibility over the entire conflict resolution process. 

In DOD's written comments, the department concurred with our 
recommendation for the Secretary of Defense to include questions on 
servicemembers' employment issues in DOD's continuing Status of Forces 
surveys that would address (1) the extent to which servicemembers 
experience USERRA-related problems; (2) from whom the servicemembers 
sought assistance if they experienced such problems; (3) if they did 
not seek assistance, why not; and (4) the extent to which the 
servicemembers' employers provide support beyond that required by law. 
DOD stated that the department's May 2004 Status of Forces survey asked 
a series of questions about reemployment after activation that included 
the areas addressed in our recommendations. We disagree. For this 
report, we used results from the May 2004 survey that showed at least 
72 percent of the Selected Reserve members who had experienced USERRA- 
related problems never filed a complaint, informal or formal, to seek 
assistance in resolving the problem. However, the survey did not cover 
all the areas addressed in our recommendation. For example, the survey 
did not ask those servicemembers who had experienced USERRA-related 
problems and never filed a complaint, informal or formal, why they did 
not seek assistance in resolving the problem. We believe that this 
would be valuable information, if gathered regularly, to gauge the 
effectiveness of federal actions to support USERRA by identifying 
trends in compliance and employer support. DOD also stated that, at the 
request of DOL, it has agreed to include the series of questions about 
reemployment after activation in future surveys. OSC generally 
concurred with this recommendation, but had no specific comment. DOL 
did not comment on this recommendation. 

DOD also concurred with our recommendation for the Secretary of Defense 
to (1) take steps to enforce compliance with servicemembers' reporting 
of their civilian employer information and maintain employer 
information, and (2) share employer information from the database with 
other federal agencies that educate employers about USERRA. DOD stated 
that the first objective of this recommendation had already been 
accomplished. We disagree. In our report, we noted that compliance with 
the requirement to enter Selected Reserve member employment information 
into the database has risen substantially during this review--from 13 
percent in October 2004, to 58 percent in April 2005, to 73 percent in 
August 2005. We also noted that compliance varies by component, with 
the Army Reserve and the Marine Corps Reserve each having the lowest 
percentage of compliance--66 percent. Further, we noted that compliance 
rates are substantially lower for the Individual Ready Reserve and the 
Inactive National Guard--about 24 percent. Individual Ready Reserve and 
Inactive National Guard members are subject to be recalled to active 
duty. About 9,500 Individual Ready Reserve members were called to duty 
between September 11, 2001, and June 30, 2005. Outreach to employers of 
Individual Ready Reserve members may be even more important than 
outreach to Selected Reserve members' employers. Individual Ready 
Reserve members do not participate in regular drilling and their 
employers may be unaware of the employees' military obligations and 
USERRA rights. As the war on terrorism continues, DOD may rely more 
upon Individual Ready Reserve members. DOD also noted that enforcement 
of compliance is a high priority and is already monitored. As noted in 
our report, responsible officials told us that as far as they knew, the 
military departments had not enforced the requirement for 
servicemembers to comply with reporting their civilian employer 
information by subjecting any member to punishment or administrative 
action for failing to comply. We believe DOD has more to accomplish in 
this area. With regard to the second objective of this recommendation, 
DOD stated that it is working collectively with DOL and the Department 
of Veterans Affairs to ensure that their respective systems facilitate 
consistent reporting capabilities. OSC generally concurred with both 
objectives of this recommendation, but had no specific comments. DOL 
did not comment on this recommendation. 

DOD deferred to DOL, DOJ, and OSC regarding our recommendation for the 
Secretary of Defense, along with the Secretary of Labor, the Attorney 
General, and the Special Counsel, to develop procedures or systems to 
enable the electronic transfer of complaint information between 
agencies. DOD stated that the department only tracks "informal 
inquires," not complaints that are filed with DOL, with possible 
referral to the DOJ or the OSC. Therefore, establishment of a complaint 
database would fall within the purview of those agencies. DOD noted 
that it would support the sharing of USERRA information received by DOD 
with responsible agencies. We note that DOD's system can contain 
extensive ombudsmen notes and details about informal complaints, not 
just inquires for information that are tracked separately, and would be 
beneficial and time saving to DOL if an informal complaint becomes a 
formal complaint filed with DOL. DOL concurred with this recommendation 
and noted that DOL has initiated internal discussions on ways in which 
DOL offices can ultimately use one electronic case management system. 
DOL stated that the department will work closely with DOD, DOJ, and OSC 
in advancing an electronic shared system configured to fit the 
agencies' responsibilities under USERRA. OSC also concurred with this 
recommendation, noting that OSC's ability to enforce USERRA has not 
been adversely affected by the transfer of information by other than 
electronic means. Nevertheless, OSC noted that the office was dedicated 
to improving USERRA services to servicemembers and thus generally 
concurred with the recommendation, although OSC indicated that the 
development of USERRA-specific electronic files may require additional 
funding from Congress. 

DOL concurred with our recommendation for the Secretary of Labor to 
develop a plan to reduce agency reliance on paper files and fully adopt 
the agency's automated complaint file system. DOL noted that the 
establishment of such electronic files would enhance DOL's ability to 
more efficiently and effectively share documents and other case- 
specific data with other agencies, thus advancing accomplishment of our 
recommendation for DOD, DOL, DOJ, and OSC to develop procedures or 
systems to enable the electronic transfer of complaint information 
between agencies. 

DOL and OSC commented on our matter for congressional consideration 
that Congress should consider designating a single office to maintain 
visibility over the entire complaint resolution process from DOD 
through DOL, DOJ, and OSC. DOL noted that the mandated OSC 
demonstration project is ongoing, and therefore, it would be premature 
to make any suggestions or recommendations for congressional or 
legislative action until the pilot has been completed. However, DOL 
stated that its office is uniquely suited to provide an overview of the 
entire complaint resolution process. OSC supported our matter and 
stated that OSC has unparalleled experience and expertise in 
administering federal sector employment complaints and prosecuting 
meritorious workplace violations before the Merit Systems Protection 
Board. OSC believes that their office is the best qualified to be the 
overseer. DOD did not comment on this matter. We believe that the 
Congress is the best qualified to determine the identity of the 
overseer and the timing of this matter for congressional consideration. 

DOD, DOL, and OSC's written comments are reprinted in their entirety in 
appendixes VII, VIII, and IX, respectively. All the agencies also 
provided technical comments, which we incorporated as appropriate. 

As agreed with your office, unless you publicly announce the contents 
of this report earlier, we plan no further distribution of it until 30 
days from the date of this letter. We are sending copies of this report 
to the Secretary of Defense; the Secretary of Labor; the Attorney 
General; the Special Counsel; the Secretaries of the Army, the Navy, 
and the Air Force; the Commandant of the Marine Corps; the Chairman of 
the Joint Chiefs of Staff; the Director, Office of Management and 
Budget; and other interested congressional committees. We will also 
make copies available to others upon request. In addition, the report 
will be available at no charge on the GAO Web site at [Hyperlink, 
http://www.gao.gov]. 

If you or your staff have any questions about this report, please 
contact me at (202) 512-5559 or [Hyperlink, stewartd@gao.gov]. Contact 
points for our Offices of Congressional Relations and Public Affairs 
may be found on the last page of this report. GAO staff who made major 
contributions to this report are listed in appendix XI. 

Sincerely yours, 

Signed by: 

Derek B. Stewart: 
Director, Defense Capabilities and Management: 

[End of section] 

Appendixes: 

Appendix I: Scope and Methodology: 

To assess whether the federal agencies that support or enforce USERRA 
have data that indicates the level of compliance with USERRA, we 
gathered and analyzed data from DOL, DOD, DOJ, and OSC. Specifically, 
we obtained historical data on the numbers of formal complaints handled 
by DOL and then analyzed the data to determine whether the data showed 
any trends and whether it was sufficient to demonstrate overall USERRA 
compliance or employer support. We also analyzed the annual numbers of 
formal complaints referred from DOL to DOJ and OSC between fiscal year 
1997 and the third quarter of fiscal year 2005 to determine whether 
there were trends in the total referrals, or the referrals to either 
agency.[Footnote 58] We also followed up on our 2002 report[Footnote 
59] to determine whether the ESGR had improved its collection of 
informal complaint data. We interviewed the ESGR headquarters officials 
and ombudsmen who handled informal complaints. We observed training for 
the ESGR's new database and we observed data entry procedures at the 
ESGR's Customer Support Center. In addition, we analyzed DMDC's 
projectable Status of Forces Survey of Reserve Component Members, which 
was conducted in the spring of 2004. This survey included more than 20 
questions about servicemember employment and USERRA-related issues. We 
also analyzed results from the Reserve Officers Association's annual 
surveys of Fortune 500 companies, which asked about policies that 
support servicemember employees. We discussed the agency data related 
to USERRA compliance or employer support, along with the practices and 
methods used to collect these data, with responsible officials from 
the: 

* Department Of Labor, Washington, D.C; 

* Department Of Labor, Veterans Employment and Training Service, Field 
Offices in Memphis, TN, and Norfolk, VA; and regional offices in 
Philadelphia, PA; and Atlanta, GA; 

* Department Of Labor, Office of the Solicitor, Washington, D.C; and 
Regional Offices in Philadelphia, PA, and Atlanta, GA; 

* Department of Justice, Washington, D.C; 

* Office of Special Counsel, Washington, D.C; 

* Department Of Defense, Employer Support of the Guard and Reserve, 
Arlington, VA; and: 

* Department Of Defense, Employer Support of the Guard and Reserve, 
Customer Service Center, Millington, TN. 

We also discussed these issues with: 

* The ESGR's State Ombudsmen Coordinators from AR; IL; KY; MD; TN; UT; 
and Washington, D.C., 

and with officials who were present at: 

* The ESGR's Basic Ombudsman Training Session held in Meridian, MS. 

To gauge the impact of the ESGR's ombudsmen program, we conducted a 
survey of ombudsmen nationwide. We wished to survey all ombudsmen who 
were available to handle servicemember complaints as of April 6, 2005 
(the "target" population). To do this, we obtained the list that the 
ESGR was using to assign USERRA complaints to ombudsmen on that date 
(the "study" population), which presumably included all of the 
individuals who were available to handle complaints. We conducted seven 
pretests of our ombudsmen questionnaire prior to administering the 
survey. During the pretests we asked the ombudsmen whether (1) the 
survey questions were clear, (2) the terms used were precise, and (3) 
the questions were unbiased. We made changes to the content and format 
of the final questionnaire based on pretest results. 

The ombudsmen surveys were conducted using self-administered electronic 
questionnaires posted on the World Wide Web. The survey questionnaire 
consisted of 12 questions, and asked ombudsmen how many USERRA 
complaints they had received and personally resolved. (App. V contains 
a copy of the survey and the survey results.) On May 3, 2005, we used a 
list supplied by the ESGR headquarters to send E-mail notifications to 
831 ombudsmen in 54 states and territories to inform them that a survey 
would be forthcoming. Then, on May 9, 2005, we activated the survey, 
sending each of the 831 members of the study population a unique 
password and username by E-mail so they could enter and complete the 
Web-based questionnaire. To encourage ombudsmen to respond, we sent two 
additional E-mail messages over the following 3 weeks. Those ombudsmen 
who were unable to complete the survey online were given the option to 
respond via fax, phone, or mail. We closed the survey on June 9, 2005. 

Although all members of the study population were surveyed, not every 
member replied to our survey. Specifically, 618 of the 831 members of 
the study population replied. In addition, 52 of the 618 respondents 
were out of scope because they indicated they were not serving as 
volunteer ombudsmen as of April 6, 2005. Table 2 contains a summary of 
the survey disposition for the surveyed cases. The response rate for 
our survey was 74 percent. [Footnote 60] 

Table 2: Data from GAO's Survey of the ESGR Ombudsmen: 

Ombudsmen in the study population: 831. 

Ombudsmen replying to the survey: 618. 

Ombudsmen replying who were out of scope: 52. 

In scope respondents: 566. 

Response rate: 74 percent. 

Source: GAO. 

[End of table] 

We obtained responses from volunteer ombudsmen across the country. 
Although the response rate of ombudsmen differed somewhat across 
states, we have no reason to expect that the responses on the issues 
studied in our survey would be associated with the ombudsmen's states. 
Therefore, our analysis of the survey data treats the respondents as a 
simple random sample of the population of the ESGR volunteer ombudsmen 
across the country. 

Assuming that the respondents constitute a random sample from the study 
population, the particular sample of ombudsmen we obtained was only one 
of a large number of such samples that we might have obtained. To 
recognize the possibility that other samples might have yielded other 
results, we express our confidence in the precision of our particular 
sample's results as a 95 percent confidence interval. Unless otherwise 
noted, the percentage estimates from the survey have a margin of error 
of plus or minus 3 percent or less with a 95 percent level of 
confidence. All numerical estimates other than percentages have a 
margin of error of plus or minus 14 percent or less of the value of 
those numerical estimates with a 95 percent level of confidence, unless 
otherwise noted. 

The practical difficulties of conducting any survey may introduce 
errors, commonly referred to as nonsampling errors. For example, 
difficulties in how a particular question is interpreted, in the 
sources of information that are available to respondents, or in how the 
data are entered into a database or were analyzed, can introduce 
unwanted variability into the survey results. We took steps in the 
development of the questionnaire, the data collection, and the data 
analysis to minimize these nonsampling errors. For example, social 
science survey specialists designed the questionnaire in collaboration 
with GAO staff with subject matter expertise. Then, the draft 
questionnaire was pretested to ensure that the questions were clearly 
stated and easy to comprehend. When the data were analyzed, a second, 
independent analyst checked all computer programs. Since this was a Web-
based survey, most respondents entered their answers directly into the 
electronic questionnaire. This eliminated the need to have the data 
keyed into a database, thus removing an additional source of error. A 
GAO analyst entered responses into our database from those ombudsmen 
who were unable to complete the survey on-line and responded via fax, 
phone, or mail. All these data were independently verified by a second 
analyst to ensure their accuracy. 

We also assessed the reliability of the data from the May 2004, Status 
of Forces Survey of Reserve Component Members, by (1) interviewing 
agency officials from: 

* the Defense Manpower Data Center, Washington, D.C., and: 

* the Assistant Secretary of Defense for Reserve Affairs, Washington, 
D.C., 

who were knowledgeable about the data, (2) reviewing existing 
information about the data and the system that produced them, and (3) 
performing electronic testing of required data elements. The response 
rate for the survey was 39 percent. To the extent that respondents and 
nonrespondents had different opinions on the questions asked, the 
estimates from this survey have the potential to be biased. DOD has 
previously conducted and reported on research to assess the impact of 
response rate on overall estimates. DOD found that, among other 
characteristics, junior enlisted personnel (E1 to E4), servicemembers 
who do not have a college degree, and members in services other than 
the Air Force, were more likely to be nonrespondents. We have no reason 
to believe that potential nonresponse bias not otherwise accounted for 
by DOD's research is substantial for the variables we studied in this 
report. All percentage estimates cited from the survey have sampling 
errors of plus or minus 2.3 percentage points or less, unless otherwise 
noted. The at least 72 percent of National Guard and Reserve members 
who never sought assistance for their USERRA problems represents the 
lower bound of a 95 percent confidence interval around a point estimate 
(77 percent) that has a plus or minus 5 percent margin of error. Ranges 
cited from the survey represent a 95 percent confidence interval around 
point estimates. We used the weighting factors and the sampling error 
methodology provided by the Defense Manpower Data Center to develop 
estimates and sampling error estimates, and determined that the data 
from the May 2004 Status of Forces Survey of Reserve Component Members 
were sufficiently reliable for the purposes of this report. 

To asses the efficiency and effectiveness of federal educational 
outreach efforts, we reviewed Section 4333 of Title 38 of the United 
States Code to determine which agencies have outreach responsibilities 
under USERRA. We interviewed agency officials to determine whether 
their agencies had any significant educational outreach efforts. 
Although only two of the four agencies we reviewed had outreach 
responsibilities under the law--DOD and DOL--officials from three 
agencies said that they had significant outreach activities--DOD, DOL, 
and OSC. We obtained information about each agency's activities, and 
analyzed the available outreach figures for individual programs and 
total agency outreach. Because DOD has at least nine different formal 
outreach programs, we devoted an entire appendix (app. IV) to the 
details of DOD's programs. We also followed up on issues related to the 
collection of servicemember employer information, which we raised in 
our 2002 employer support report.[Footnote 61] Specifically, we 
reviewed DOD's policy memoranda that were issued after our 2002 report 
and which mandated that Ready Reserve members supply information about 
their civilian employers. We also monitored and analyzed figures that 
showed servicemember rates of compliance with the estimates from this 
survey on these reporting requirements. These compliance figures 
covered each of the reserve components and various reserve categories. 

To asses how efficiently and effectively DOD, DOL, DOJ, and OSC 
addressed servicemember complaints, we obtained and analyzed 
information about complaint processing practices, including applicable 
guidance, regulations, or operations manuals. We also obtained and 
reviewed the memorandums of understanding between DOL and DOJ, OSC, and 
the ESGR. To further analyze the entire process, we gathered and 
analyzed information about how the agencies share information from 
USERRA complaint files with one another. We exported data from the VETS 
USERRA Information Management System and analyzed the data to look for 
trends in processing times. We specifically focused our analysis on 
cases that had been closed and later reopened, and on cases that had 
been referred from DOL to DOJ or OSC. We performed multiple sorts of 
the entire data set, and data subsets, to determine whether there were 
any common characteristics in complaint files from the group of 
complaints that remained open for long time periods, or in the 
complaint files from the group of complaints that were quickly 
resolved. For example, we sorted complaint data by: type of employer, 
regional office, type of servicemember, and type of complaint. We used 
many of the other more than 70 data fields to perform data sorts but 
much of our analysis did not yield reportable results because 
substantial amounts of information were missing for certain data 
fields. However, our analysis of date fields was not hampered by 
missing data and we were able to calculate elapsed times and processing 
times from the available data. 

We assessed the reliability of formal complaint data provided by DOL, 
DOJ, and OSC by (1) reviewing existing information about the data and 
the systems that produced them and (2) interviewing and obtaining 
written responses from agency officials knowledgeable about the data. 
We compared data obtained from DOJ and OSC to that captured in the DOL 
USERRA Information Management System. We also compared data drawn from 
DOL's USERRA Information Management System at different time periods to 
determine the consistency of the data. In addition, where available, we 
compared information from 59 hard copy complaint files to data recorded 
in the DOL system to assess how accurately information was being 
entered into the database. We also discussed informal complaint data 
and its reliability with knowledgeable ESGR officials. On the basis of 
these assessments, we determined that the data were sufficiently 
reliable for the purposes of this report, though agency data systems 
had some limitations that we discussed in the report. 

We conducted our work from October 2004 through August 2005 in 
accordance with generally accepted government auditing standards. 

[End of section] 

Appendix II: Professional Backgrounds of the ESGR's Volunteer 
Ombudsmen: 

Between May 9, 2005, and June 9, 2005, we surveyed the ESGR's volunteer 
ombudsmen who were available to handle servicemember complaints as of 
April 6, 2005. We received a 74 percent response rate to our survey. 
Tables 2 shows that about 58 percent of the volunteer ombudsmen were 
employed in full-time jobs, and about 30 percent were retired. 

Table 3: Employment Status of the ESGR's Ombudsmen (as of April 6, 
2005): 

Employment status: Employed full-time; 
Percentage: 58. 

Employment status: Employed part-time; 
Percentage: 11. 

Employment status: Retired; 
Percentage: 30. 

Employment status: Not retired or employed; 
Percentage: 1. 

Employment status: Total; 
Percentage: 100. 

Source: GAO. 

Note: Estimated percentages have a margin of error of plus or minus 3 
percent with a 95 percent level of confidence. 

[End of table] 

Table 3 shows the distribution of ombudsmen by their primary employers. 
About 44 percent worked for the government or military, and about 56 
percent worked for private employers, including the approximately 21 
percent who were self-employed. 

Table 4: The Primary Employers of the ESGR's Ombudsmen (as of April 6, 
2005): 

Primary employer: Military; 
Percentage: 15. 

Primary employer: Federal government (non-military); 
Percentage: 9. 

Primary employer: State government; 
Percentage: 11. 

Primary employer: Local government; 
Percentage: 8. 

Primary employer: Total government employers; 
Percentage: 44[A]. 

Primary employer: Large private sector firms; 
Percentage: 18. 

Primary employer: Small businesses; 
Percentage: 11. 

Primary employer: Non-profit or charitable organizations; 
Percentage: 6. 

Primary employer: Self employed; 
Percentage: 21. 

Primary employer: Total private employers; 
Percentage: 56. 

Grand total; 
Percentage: 100. 

Source: GAO. 

Note: Estimated percentages have a margin of error of plus or minus 3 
percent with a 95 percent level of confidence. 

[A] The government and military figures add to 44 percent rather than 
43 percent due to rounding. 

[End of table] 

In addition to the general background employment questions, our survey 
asked respondents to specify their occupations or backgrounds that they 
felt were particularly relevant to their ombudsmen duties. The 
responses were varied and showed that many of the volunteers hold or 
had previously held paid positions that required: leadership, skillful 
negotiation, extensive interactions with different types of people, or 
knowledge of laws and regulations or military operations and 
procedures. In the information that follows, we have grouped the 
responses and provided some examples of the occupations the ombudsmen 
thought were particularly relevant. The ombudsmen said that they had 
held: 

* Legal positions ranging from paralegals to attorneys, assistant 
attorney generals and a wide range of judges--administrative law, 
municipal, district, superior court, and state supreme court; 

* Dispute or resolution positions as mediators, negotiators, 
arbitrators, facilitators, and grievance officers; 

* Counseling positions as veterans' career/employment, vocational 
rehabilitation, and recruitment/retention counselors; 

* Political positions ranging from local mayor and city council 
positions to lobbyist and state legislature and senate positions; 

* Military positions in the active Army, Navy, Air Force, and Marine 
Corps; and in the Army Reserve, the Army National Guard, the Air 
National Guard, the Air Force Reserve, the Naval Reserve, the Marine 
Corps Reserve, and the Coast Guard Reserve; 

* Federal government positions in the Departments of: Defense, Justice, 
Homeland Security, Labor, Veterans Affairs, Education, Health and Human 
Services, Interior, Corrections, Energy, Agriculture, Treasury, and in 
the U.S. Postal Service; 

* State and local government positions in the Departments of Military 
Affairs, Environmental Management, Public Safety, and Aviation; and in 
the Adjutant General's office; 

* Education positions ranging from teachers and college professors, who 
taught mediation and communications, to principal, school 
superintendent, and college president positions; 

* Law enforcement positions as police officers, supervisors, or chiefs; 
state troopers, marshals, investigators, and as a liaison between the 
military and a major city police department that employs more that 500 
Guard and Reserve members; 

* Religious positions as chaplain and deacon; 

* Business and management positions as labor relations specialists, 
negotiators, human resource managers, public affairs officers, owners, 
general managers, directors, presidents, vice-presidents, and CEOs; 
and: 

* Trade organization positions as union officers or shop 
steward/negotiators. 

[End of section] 

Appendix III: Department of Labor Form 1010: 

[See PDF for image] 

[End of figure] 

[End of section] 

Appendix IV: DOD's Outreach Programs: 

The ESGR has responsibility for most DOD outreach programs but DOD also 
has a public affairs campaign that encourages employer support of 
servicemember employees. In past years, the ESGR's focus was on 
educating servicemembers concerning their employment rights. In fiscal 
year 2005, the ESGR shifted its focus to educating employers. The new 
focus better aligns with the ESGR's mission--to gain and maintain 
support for employee military service from all public and private 
employers of the men and women of the National Guard and Reserve. To 
fulfill its mission, the ESGR has developed and implemented a number of 
employer outreach efforts. In addition to the ESGR's "statement of 
support" and awards programs, which were discussed in the body of this 
report, the ESGR has a number of other outreach programs that are 
discussed below. Some of these efforts are well underway, others are 
relatively new. 

The ESGR Outreach Programs: 

* Mass Market Outreach. This ESGR effort has used public service 
advertising and mass marketing to make employers and the general public 
aware of the importance of employer support for Guard and Reserve 
members who are called to military service, and the role that the ESGR 
can play in encouraging supportive employer relations. 

* Strategic Partnerships. Through these partnerships with the national 
headquarters and local chapters of the Chamber of Commerce, Society for 
Human Resource Management, National Federation of Independent Business, 
Small Business Administration, and Rotary Club, the ESGR strives to 
educate employers about USERRA, the ESGR organization, and the 
different ways employers can support their servicemember employees. The 
ESGR uses a variety of media, trade show, and speaking opportunities to 
reach this target audience. The ESGR's goal was to reach at least 430 
local chapters of these groups in fiscal year 2005. As of July 2005, 
the ESGR had met with 250 of its strategic partners. 

* Industry Segment Outreach. This outreach effort is focused on leaders 
in industries that employ significant numbers of reserve component 
members. For about 5 years, DOD leaders have met regularly with key 
officials from the airline industry to discuss concerns that arise as 
the military and industry share the same personnel resources. In fiscal 
year 2005, the ESGR planned to hold three similar symposiums with (1) 
law enforcement, (2) fire and safety officials, and (3) city and 
municipal leaders. However, none of the other symposiums had taken 
place when we ended our review in August 2005. 

* Federal Government Outreach. USERRA states that the federal 
government should be a model employer. The ESGR is encouraging the 17 
cabinet-level departments and 81 independent federal government 
agencies to sign the ESGR statements of support as a means to 
demonstrate their commitment to their servicemember employees. The ESGR 
established a goal to have10 federal government agencies sign 
statements of support in fiscal year 2005. As of August 2005, a total 
of 20 federal agencies had signed statements of support. 

* 5-Star Program. In the past, the ESGR's outreach efforts were focused 
on simply asking employers to sign statements of support for their 
National Guard and Reserve members. The statement of support simply 
stated that employers would fulfill their obligations by complying with 
USERRA. Currently in its first year, the 5-Star Program seeks to get 
employers more actively involved in the management of their National 
Guard and Reserve employees. The five steps of the 5-Star Program are 
to (1) sign a statement of support, (2) review employer human resource 
policies with respect to employer support, (3) train supervisors and 
managers on USERRA, (4) provide "above and beyond" human resource 
policies, and (5) advocate for National Guard and Reserve members. 

* Bosslifts. Bosslifts are usually 2-to 3-day outreach events where 
employers, civic leaders, and legislators are taken to Guard or Reserve 
units to observe Guard or Reserve members in action. These events 
present employers with opportunities to directly observe the technical, 
organizational, team building, and leadership skills of their 
employees. They also provide employers with opportunities to observe 
military training, some of which may be directly related to their 
employees' civilian jobs. Each ESGR state committee is programmed for 
one nationally sponsored bosslift each year. However, based on the size 
and distribution of its reserve component population, California is 
programmed for two bosslifts. Additional committee-sponsored bosslifts 
are authorized and encouraged. Some state committees sponsor and fund 
bosslifts using state funding. 

* Employer Briefings. Employer briefings provide a forum for local 
employers, unit commanders, the ESGR members, and community leaders to 
meet, network, and discuss issues that arise from employee 
participation in the National Guard and Reserve. The meeting site can 
be a local restaurant, hotel, service club, Chamber of Commerce, 
National Guard Armory, Reserve Center, or military installation. This 
is a local-level 1-day activity funded at the state level. 

Other DOD Outreach Efforts: 

* Defense Advisory Board. In August 2003, the Secretary of Defense 
created a defense advisory board composed of 15 to 25 industry public 
and private sector leaders to act as consultants without compensation. 
The board was established for up to 3 years and provides advice to the 
Secretary of Defense about issues concerning Reserve component members 
and their civilian employers. It also recommends policies and 
priorities for employer support actions and programs. The board meets 
at least twice a year at the call of the National Chairman, and as 
needed to address emergent issues. In March 2005, this board met with 
both the Secretary and Deputy Secretary of Defense. Board members 
included a state governor, a major city fire chief, and representatives 
from employer associations, higher education, and the airline, 
information technology, aircraft repair, transportation, public 
relations and public affairs, defense and aerospace systems, investment 
banking, and food industries. 

* America Supports You. This is a nationwide program launched by DOD's 
public affairs office to recognize citizens' support for military men 
and women and to communicate that support to members of the Armed 
Forces at home and abroad. Participants can join the team at 
[Hyperlink, http://www.americasupportsyou.mil], share their stories of 
support with the nation and troops, and download program materials. In 
turn, military members will access the Web site and learn about 
America's support for their service. In addition to personal stories of 
support, the Web site has a section that recognizes employer support 
for servicemembers and particularly for servicemember employees. 

[End of section] 

Appendix V: GAO's Survey of the ESGR's Volunteer Ombudsmen Including 
Results: 

This appendix presents a facsimile of the actual questions asked in our 
survey of the ESGR ombudsmen along with aggregate responses. The 
results presented have been weighted to correspond to the universe of 
the ESGR ombudsmen. See appendix I, Scope and Methodology, for a 
detailed discussion of this process. 

[See PDF for image] 

[End of figure] 

[End of section] 

Appendix VI: DOL's USERRA Information Poster: 

[See PDF for image] 

[End of figure] 

[End of section] 

Appendix VII: Comments from the Department of Defense: 

ASSISTANT SECRETARY OF DEFENSE: 
RESERVE AFFAIRS: 
1500 DEFENSE PENTAGON: 
WASHINGTON, DC 20301-1500: 

OCT 06 2005: 

Mr. Derek B. Stewart:
Director, Defense Capabilities Management: 
U. S. Government Accountability Office: 
Washington, D. C. 20548: 

Dear Mr. Stewart: 

This is the Department of Defense (DoD) response to the GAO draft 
report GAO-06-60, "MILITARY PERSONNEL: Federal Management of 
Servicemember Employment Rights Can Be Further Improved. I appreciate 
the opportunity to review and comment on the draft GAO report. 

The Department does not have major issues with the recommendations made 
by the GAO. We concur with recommendations 1, 2 and 3 and defer to the 
Department of Labor, the Department of Justice and the Office of 
Special Counsel on recommendation 4. We continuously seek improvement 
in our employer outreach programs and our reporting capability. Two 
significant initiatives that have matured in the past eighteen months - 
the Ombudsman data base and the Civilian Employment Information data 
base - will not only enhance the effectiveness of our outreach efforts, 
they will also provide the information needed to measure and display 
the degree to which the Department is carrying out its USERRA 
responsibilities. These initiatives were mentioned in the report, but 
their significance and importance for the future were not emphasized. 

Our approach focuses on educating Reserve component members and their 
employers and solving problems at the lowest, informal level. While 
this may make measurement of success difficult for this report, we 
believe the trend in the number of Department of Labor complaint cases 
demonstrates that our efforts are effective. 

The Department's comments on the draft report recommendations are 
provided in the enclosure. Technical changes that were identified by 
reviewers have been provided to the GAO staff separately. 

Sincerely, 

Signed by: 

T. F. Hall: 

Enclosure: As stated: 

GAO DRAFT REPORT - DATED SEPTEMBER 21, 2005 GAO CODE 350609/GAO-06-60: 

"MILITARY PERSONNEL: Federal Management of Servicemember Employment 
Rights Can Be Further Improved" 

DEPARTMENT OF DEFENSE COMMENTS TO THE RECOMMENDATIONS: 

RECOMMENDATION 1: The GAO recommended that the Secretary of Defense 
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 Uniformed Services 
Employment and Reemployment Rights Act (USERRA)-related problems; 

* if they experience these problems, from whom they seek assistance; 

* if they do not seek assistance, why not; and: 

* the extent to which servicemember employers provide support behind 
that required by the law. (Page 60/GAO Draft Report): 

DOD RESPONSE: Concur. In fact, the Department's May 2004 Status of 
Forces Survey of Reserve component members asked a series of questions 
about reemployment after activation/deployment that included the areas 
addressed in this recommendation. Further, at the request of the 
Department of Labor (DoL), we have agreed to periodically include this 
same series of questions in future surveys to help identify trends. 

RECOMMENDATION 2: The GAO recommended that the Secretary of Defense 
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. 
(Page 60/GAO Draft Report): 

DOD RESPONSE: Concur. This has already been accomplished. Mandatory 
collection of employer information for Reserve component members was 
directed in March 2003 by the Under Secretary of Defense for Personnel 
and Readiness. In a memorandum to the Secretaries of the Military 
Departments in November 2004, he reemphasized the mandatory reporting 
requirement and set specific goals for obtaining employer data. Over 78 
percent of Selected Reserve members have now entered their employer 
information in the Civilian Employer Information data base. Enforcement 
of this requirement is a high priority in DoD and is already monitored. 

RECOMMENDATION 3: The GAO recommended that the Secretary of Defense 
direct the Assistant Secretary of Defense for Reserve Affairs to share 
applicable employer information from DoD's employer database with 
Department of Labor, Office of Special Counsel, and other Federal 
agencies that educate employers about USERRA, consistent with the 
Privacy Act. (Page 60/GAO Draft Report): 

DOD RESPONSE: Concur. DoD, DoL and the Department of Veterans Affairs 
are working collectively to ensure, to the extent possible, that 
categories of employers, occupational areas, and codes used in their 
respective systems facilitate consistent reporting capabilities. 

RECOMMENDATION 4: The GAO recommended that the Secretary of Defense, 
the Secretary of Labor, the Attorney General, and the Special Counsel 
develop procedures or systems to enable the electronic transfer of 
complaint information between offices. (Page 61/GAO Draft Report): 

DOD RESPONSE: Defer to DoL, the Department of Justice (DoJ), and the 
Office of Special Counsel (OSC). The DoD agrees that electronic sharing 
of information would enhance our understanding of employer issues. 
However, DoD tracks only informal inquiries, not complaints. Complaints 
are filed with DoL with possible referral to DoJ, or the OSC. 
Therefore, establishment and maintenance of a complaint database would 
fall within the purview of those agencies. DoD would support the 
sharing of information on USERRA inquiries received by DoD with those 
agencies and having the ability to receive reports on complaints filed 
with DoL or OSC, should those agencies agree to undertake such an 
initiative. However, DoD defers to DoL, DoJ, and OSC with regard to 
establishing electronic transfer of data among those agencies. 

[End of section] 

Appendix VIII: Comments from the Department of Labor: 

U.S. Department of Labor: 
Assistant Secretary for Veteran's Employment and Training: 
Washington, D.C. 20210: 

OCT - 7 2005: 

Mr. Derek B. Stewart:
Director, Defense Capabilities and Management: 
U.S. Government Accountability Office: 
441 G Street, N.W.: 
Washington, D.C. 20548: 

Dear Mr. Stewart: 

The Department of Labor (DOL) appreciates the opportunity to comment on 
the draft report entitled, "MILITARY PERSONNEL: Federal Management of 
Servicemember Employment Rights Can Be Further Improved," (GAO-06-60). 

The administration and enforcement of the Uniformed Services Employment 
and Reemployment Rights Act (USERRA), 38 U.S.C. §§4301-4334, has taken 
on increased importance in view of the mobilization of over 500,000 
members of the National Guard and Reserve in support of Operation Noble 
Eagle, Operation Enduring Freedom, and Operation Iraqi Freedom. In 
response to these mobilizations, DOL has reinforced its commitment to 
assist employees and employers in ensuring that the non-discrimination 
and reemployment mandates of USERRA are fully enforced. DOL's effective 
administration of the statute has included promulgation of the first- 
ever USERRA regulations for State and private employers. The Veterans' 
Employment and Training Service (VETS), the DOL agency responsible for 
USERRA's administration, has developed and enhanced its web-based 
USERRA advisor and has made available on its website an electronic 
complaint form, which provide servicemembers with greater access and 
opportunity to know and understand their rights under USERRA. 

USERRA assigns responsibilities to the DOL, the Department of Defense 
(DOD), the Department of Justice (DOJ) and the Office of Special 
Counsel (OSC), who each have a role in carrying out USERRA's mandates. 
We work closely with those agencies in undertaking this crucial mission 
i C this end, in September, 2004, DOL and DO J entered into a 
MeMorandum of Understanding that strengthens the close working 
relationship of the two agencies. Similarly, in September, 2005, DOL 
memorialized its longstanding cooperative relationship with the 
Department of Defense's Employer Support of the Guard and Reserve to 
promote the agencies' goal of early resolution of USERRA employment and 
reemployment issues. 

As noted in the report, the multi-agency administration and enforcement 
of the statute requires interagency cooperation and a comprehensive 
approach to ensuring that a servicemember's interaction with the USERRA 
system is as effective as possible. DOL agrees with the GAO's 
recommendations for DOL action that emphasizes a more "results-oriented 
focus." We support all recommendations intended to reduce "mission 
fragmentation" and other barriers to interagency cooperation that may 
impede our ultimate goal, which is the support of servicemembers. We 
also note, however, that the OSC demonstration project mandated by the 
Veterans Benefits Improvement Act of 2004 (VBIA), Pub. Law No. 108-454 
(Dec. 10, 2004) is ongoing. Therefore, it would be premature to make 
any suggestions or recommendations for Congressional or legislative 
action until the pilot has been completed. 

We agree with GAO's recommendation that DOL, DOD, DOJ and OSC develop 
procedures or systems to enable the electronic transfer of complaint 
information among offices. DOL's Office of the Solicitor (SOL) and VETS 
have already begun to discuss ways in which the two offices can 
ultimately use one electronic case management system. In addition, DOL 
is in preliminary discussions with the other agencies regarding the 
improvement of our inter-agency information exchange and data-sharing 
capabilities. We envision that all agencies with administrative and 
enforcement responsibilities under the statute will be able to access 
from their desktops an electronic shared case-tracking and data 
management system, and that access to such a system will be configured 
to fit their responsibilities under the statute. DOL will work closely 
with DOD, DOJ, and OSC in advancing this goal. 

The GAO also recommended that VETS should reduce agency reliance on 
paper files and fully adopt the agency's automated complaint file 
system. We agree with this recommendation. 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 
SOL 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. The establishment of such 
electronic "files" would enhance DOL's ability to more efficiently and 
effectively share documents and other case-specific data with other 
agencies, thus promoting the goal set out above. 

Our Solicitor's Office and the VETS program have developed 
extraordinary expertise through many years of administering and 
enforcing USERRA and its predecessor statutes. We think DOL is uniquely 
suited to provide an overview of the entire complaint resolution 
process. DOL has extensive experience handling all aspects of USERRA 
activity, from education and outreach, to technical assistance, to 
investigation, to legal review and analysis. Further, DOL is the only 
agency that handles cases involving all employers, whether they are 
private, State, or Federal Executive Branch employers. The Secretary of 
Labor has the authority to, and has, promulgated USERRA regulations for 
State and private employers; regulations for Federal Executive Branch 
employers, which are the responsibility of the Office of Personnel 
Management, are required to be consistent with DOL's regulations 
applicable to State and private employers. The VETS program is uniquely 
situated to assist in this oversight function, particularly in view of 
its exemplary information management system, recently further enhanced 
by the integration of an electronic complaint system. 

Thank you for the opportunity to respond to this GAO draft report. 

Sincerely, 

Signed by: 

Charles S. Ciccolella: 

[End of section] 

Appendix IX: Comments from the Office of Special Counsel: 

U.S. OFFICE OF SPECIAL COUNSEL: 
The Special Counsel: 
1730 M Street, N.W, Suite 300: 
Washington, D.C. 20036-4505: 

October 7, 2005: 

The Honorable David M. Walker: 
Comptroller General of the United States: 
U.S. Government Accountability Office: 
441 G. Street, N.W.
Washington, D.C. 20548: 

Re: Comments to Draft Report GAO-06-60: 

Dear Comptroller General Walker: 

Thank you for the opportunity to respond to the Government 
Accountability Office's draft report entitled, "Military Personnel; 
Federal Management of Servicemember Employment Rights Can be Further 
Improved" (GAO Report Number 06-60). The Federal government is the 
largest civilian employer of Guardsmen and Reservists, and Congress 
intends for it to be a model employer in fulfilling its statutory 
obligations under the Uniformed Services Employment and Reemployment 
Rights Act of 1994 (USERRA), 38 U.S.C. § 4301, et seq. As head of the 
federal agency that has exclusive prosecutorial authority over federal 
sector USERRA cases, I share fully in Congress' view and will continue 
to enforce aggressively the employment rights of service members. I 
generally concur with report's conclusion that service member 
employment rights can be strengthened with improved federal management 
over the administrative process, and my specific comments are set forth 
in part II of this letter. To better appreciate and understand them, 
however, I have provided background on the U.S. Office of Special 
Counsel (OSC) and its important role in enforcing USERRA in the federal 
sector. 

I. OSC's Role in Protecting Service Members' Federal Employment Rights: 

OSC's role in protecting service members' federal employment rights is 
powerful and unique. As explained in detail below, no other federal 
agency-including the U.S. Department of Labor's component 
organizations: Veterans' Employment and Training Service (VETS) and 
Office of the Solicitor (SOL)-has the statutory authority, experience, 
and expertise to receive, review, investigate, resolve, and prosecute 
USERRA violations and prohibited personnel practices occurring in the 
federal sector. Only OSC can offer the full spectrum of assistance that 
service members may need, and certainly deserve, to protect their 
federal employment rights. And, as Special Counsel, I assure you that 
OSC is ready, willing, and able to protect service members zealously 
and to the full extent of the law. 

A. OSC and the Federal Merit System: 

OSC is an independent federal investigative and prosecutorial agency 
established pursuant to 5 U.S.C. § 1211. Its primary mission is to 
safeguard the federal merit system by protecting federal employees and 
applicants from prohibited personnel practices occurring in the federal 
workplace. OSC has a proud history of serving the federal workforce and 
the public through its tenacious defense of the merit system principles 
that continue to safeguard the integrity of the executive branch 
agencies of the United States. 

To protect the employment rights of federal workers and applicants, OSC 
employs personnel specialists, investigators, and attorneys who 
receive, review, investigate, and resolve allegations of prohibited 
personnel practices. We are the only federal agency authorized to seek 
corrective action on behalf of aggrieved claimants and disciplinary 
action against federal managers for committing prohibited personnel 
practices. OSC prosecutes such claims before the U.S. Merit Systems 
Protection Board (MSPB). 

In fiscal year 2004, OSC received over 1900 prohibited personnel 
practice claims with the majority of those claims alleging numerous 
prohibited personnel practices. OSC's "bread and butter" is the 
receipt, review, investigation, resolution, and prosecution of 
allegations of violations of federal employment rights. Further, OSC's 
Disclosure Unit (DU) complements its prohibited personnel practice 
mission by serving as a safe conduit for the receipt and evaluation of 
whistleblower disclosures (which are separate from prohibited personnel 
practice allegations) from federal employees, former employees and 
applicants for federal employment. 

B. OSC's Role in Enforcing USERRA: 

With the passage of USERRA in October of 1994, Congress expanded OSC's 
role as protector of the federal merit system and the federal 
workplace. USERRA is the law that sets forth the reemployment rights of 
persons who are absent from their respective civilian employment due to 
the performance of military duties. USERRA also makes it illegal for an 
employer to deny any benefit of employment on the basis of past, 
current, or future performance of military service. 

Under USERRA, the U.S. Department of Labor, Veterans' Employment and 
Training Service (VETS), receives USERRA claims, conducts USERRA 
investigations, and endeavors to resolve claims with the involved 
agency. Where VETS is unable to resolve claims, the matter is referred 
to OSC for review at the claimant's request. 

When a claim is referred to OSC at the claimant's request, OSC 
objectively reviews the facts and laws applicable to each complaint. 
Where a VETS investigation is deficient, OSC may endeavor to obtain 
additional information from the involved agency. Where the Special 
Counsel is satisfied that claimant is entitled to relief, then it may 
exercise its prosecutorial authority and represent the claimant before 
the MSPB and, if required, the U.S. Court of Appeals for the Federal 
Circuit. See 38 U.S.C. §§ 4324(a)(2)(A) and (d)(2). As an experienced 
prosecutor before the MPSB, OSC seeks to obtain full corrective action 
on behalf of claimants either by settlements with the involved federal 
employer or through MSPB litigation.[NOTE 1] OSC's unique role in 
enforcing USERRA complements its role in protecting the federal 
employees and applicants from prohibited personnel practice in the 
federal workplace. 

C. OSC's Role in Enforcing USERRA - Demonstration Project: 

In late 2004, Congress further expanded OSC's role in enforcing USERRA 
and protecting the employment rights of federal employees and 
applicants. Pursuant to a demonstration project established by the 
Veterans Benefits Improvement Act (VBIA), signed by President Bush on 
December 10, 2004, OSC, rather than VETS, was given the exclusive 
authority to investigate federal sector USERRA claims brought by 
persons whose social security number ends in an odd-numbered digit. 
Under the project, OSC also receives and investigates all federal 
sector USERRA claims containing a related prohibited personnel practice 
allegation over which OSC has jurisdiction regardless of the person's 
social security number (so-called "mixed claims"). [NOTE 2] 

Pursuant to section 204(a) of the VBIA, certain federal sector USERRA 
claims "are referred to, or otherwise received by, the Office of 
Special Counsel for assistance, including investigation and resolution 
of the claim as well as enforcement of rights with respect to the 
claim." Hence, OSC has the responsibility for providing technical 
assistance to service members who claim USERRA rights and benefits. OSC 
fulfills that responsibility, by regularly providing technical and 
other assistance to employees and employers (e.g., educating employees 
and employers about their respective rights and responsibilities under 
the law) in addition to investigating cases under the demonstration 
project. 

OSC is the administrator of the demonstration project, and DOL shall 
cooperate with OSC in carrying out the demonstration project.[NOTE 3] 
The demonstration project began on February 8, 2005, and ends on 
September 30, 2007. 

NOTES: 

[1] There is currently no provision under USERRA that permits OSC to 
seek disciplinary action against federal employees who knowingly and 
willfully violate USERRA. But, because federal sector USERRA violations 
may involve prohibited personnel practices, OSC always scrutinizes its 
USERRA cases for possible prohibited personnel practices upon which 
disciplinary action can be based and brought against agency officials 
who violate service members' employment rights. 

[2] VETS's investigative authority was limited to federal sector USERRA 
claims brought by persons whose social security number ends in an odd- 
numbered digit and who do not allege a prohibited personnel practice. 

[3] See section 204(d)(1) of VBIA. 

In summary, the demonstration project enables service members to have 
their USERRA allegations investigated by OSC's experienced and expert 
staff and, if substantiated, quickly resolved via settlement or by 
filing an action before the MSPB. For OSC, it is a natural and 
comfortable extension of what OSC's does best-i.e., protect the 
employment rights of federal employees and applicants. 

D. OSC's USERRA Unit: 

Given the new, additional investigative responsibilities Congress 
assigned to OSC with the passing of the demonstration project and my 
personal desire to revitalize OSC's enforcement of USERRA during my 
term as Special Counsel, I established the USERRA Unit as part of my 
January 6, 2005, directive reorganizing the agency. The USERRA Unit is 
the in-take, investigative, and prosecutorial unit for all matters 
pertaining to USERRA and veteran-related employment issues. The unit is 
responsible providing technical assistance to claimants, investigating 
USERRA claims, and resolving or prosecuting meritorious allegations. 
[NOTE 4] 

In order to inform service members and federal agencies of OSC's new 
role in enforcing USERRA, the USERRA Unit substantially modified OSC's 
web page. 

It describes OSC's role under the demonstration project and explains 
the manner in which certain federal claimants may seek OSC's assistance 
for alleged violation of their USERRA rights. 

To make the claim filing process easier and speedier for service 
members, the USERRA Unit created a new claim form solely for filing 
USERRA claims with OSC. Form OSC-14 "Complaint of Possible Violation of 
USERRA" has been approved by the U.S. Office of Management and Budget 
(OMB) and has been in use since March 2005. So rather than having to 
file with VETS and wait for VETS to transfer the claim to OSC, the 
USERRA Unit took the initiative and created a means by which service 
members can file directly with OSC. To make the process even faster, 
the USERRA Unit anticipates that claimants will soon be able to file 
OSC-14 forms electronically. 

Finally, the USERRA Unit provides outreach services designed to educate 
federal personnel on USERRA issues so that agencies comply with the 
law. Such outreach efforts include USERRA seminars presented by OSC 
staff to the D.C. Bar in May 2005, at the annual Federal Dispute 
Resolution Conference in August 2005 in New York, and at an upcoming 
presentation at the Army's Advanced Labor and Employment Law Course on 
October 18, 2005, at the Judge Advocate General's Legal Center and 
School in Charlottesville, Virginia. In addition, I have appeared on 
the Pentagon Channel, which broadcasts military news and information 
for the 2.6 million members of the Armed Forces stationed worldwide, 
and informed our soldiers of their rights under USERRA. 

NOTE: 

[4] The Unit is presently comprised of three investigators, two staff 
attorneys, and a very experienced GS-15 supervisory attorney who serves 
as Chief of the unit. The USERRA Unit is part of OSC's Special Project 
Unit, which is headed by the Principal Special Assistant to the Special 
Counsel. 

I also write and speak frequently about the USERRRA accomplishments OSC 
has achieved for service members during my term as Special Counsel, 
including prosecuting the first USERRA cases in OSC's history. Finally, 
in order to be readily available to provide technical assistance to 
service members and employers, the unit maintains a telephonic and web- 
based "hotlines" for answering USERRA-related questions from the public 
and private sectors. 

II. Comments to the Draft Report: 

A. Comments to Specific Points Raised: 

In addition to commenting on the report's recommendations in paragraph 
II. B, it is also important that I respond to two points raised in body 
of the report. 

1. Explanation of ESGR's Role: 

The draft report states, "When ombudsmen cannot resolve servicemembers 
complaints, they notify the servicemembers of the other options that 
are available to address complaints." (See page 19 of the draft 
report.) Based on the USERRA Unit's experience, that statement is 
incorrect. 

ESGR does not obtain information indicating whether the service member 
has a USERRA claim falling within OSC's exclusive investigative 
jurisdiction and does not notify service members of the option of 
filing directly with OSC. Instead, it only informs service members of 
the right to file claims with DOL.[NOTE 5] 

I believe that service member employment rights can be further improved 
by ESGR's referring to OSC those federal sector matters over which OSC 
has exclusive jurisdiction under the demonstration project. By 
eliminating the unnecessary step of transferring to DOL, which then 
transfers the claim to OSC, federal management of the process can be 
enhanced. Thus, I request that you consider amending your report to 
recommend that ESGR refer cases directly to OSC. 

NOTE: 

[5] It is the USERRA Unit's understanding that DOL does not want ESGR 
referring matters directly to OSC. DOUs reasoning for delaying service 
members' efforts to seek redress is not known. 

2. USERRA Poster: 

The report finds that the lack of employer information hinders the 
efficiency and effectiveness of agency outreach actions (see page 41 of 
draft report). The draft report comments on the means by which DOL has 
sought to educate service member and employers about USERRA. With 
respect to DOL's outreach, the report states, "DOL also made a USERRA 
poster available for employer to post in their workplaces as a means of 
complying with the requirements set forth in the Veterans Benefits 
Improvement Act, which was enacted by Congress in December 2004. The 
poster is on VETS Web site and is included as appendix VI of this 
report." 

The information contained on DOL's USERRA poster is incomplete and 
inaccurate. [NOTE 6] Despite specific, timely requests from OSC to DOL 
to do so, the USERRA poster does not include any information about 
OSC's important role in providing technical assistance, investigating, 
resolving and prosecuting federal sector USERRA claims during the 
demonstration project. Nor does it display OSC's telephone number, 
webpage, or logo. In short, the poster fails to provide complete 
information on how to file a complaint against a federal agency. 

The poster is especially troublesome given that an employer may satisfy 
its legal responsibility to inform its employees of their USERRA rights 
by exhibiting the poster. As mentioned, the Federal government is the 
largest single employer of guardsmen and reservists. Additionally, 
recently retired career service members often look to the Federal 
government for post-military civilian career opportunities. But, the 
poster neither informs that large segment of service members nor the 
federal agency that employs them (or considers them for employment) of 
OSC's critical role in enforcing USERRA in the federal sector. 

I believe that service member employment rights can be further improved 
by DOL's changing of the USERRA poster to provide accurate information 
about the demonstration project. Thus, I request that you consider 
amending your report to recommend that the USERRA poster be changed to 
include important, relevant information about OSC's enforcement role. 

B. Comments to Recommendations: 

The draft report makes several recommendations. (See pages 60-62 of 
draft report). My succinct responses to each are set forth below. 

1. Surveys and Coordination of Outreach Efforts - Concur: 

I have no specific comment regarding the recommendation that DOD 
include USERRA questions it its periodic surveys of service members, 
take steps to enforce the requirement that service members to report 
their civilian employment information, and share applicable information 
with DOL, OSC, and other federal agencies. (See page 60 of draft 
report.) Thus, I generally concur with recommendations that protect 
service member employment rights under the statute. 

NOTE: 

[6] For example, the poster states that DOL is authorized to 
investigate USERRA complaints. Under the demonstration project, DOL is 
not authorized to investigate certain USERRA complaints. 

2. Electronic Transfer of Information - Concur: 

The report recommends: (1) DOD, DOL, DOJ, and OSC explore methods of 
electronically transferring information between offices and (2) DOL 
develop a plan to reduce agency reliance on paper complaint files. (See 
page 61 of draft report.) 

As mentioned, OSC ability to enforce USERRA has not been adversely 
affected by the transfer of information by other than electronic means. 
Nevertheless, I am dedicated to improving services to service members 
who seek assistance and, therefore, I generally concur with the 
recommendation. Given that OSC is an agency with a budget significantly 
smaller that that of DOD, DOL, and DOJ, however, it appears that OSC's 
development of USERRA-specific electronic files must be funded by 
Congress. 

3. Single Individual or Office to Oversee Complaint Process - Concur: 

The draft report recommends that Congress consider designating a single 
office to maintain visibility over the entire conflict resolution 
process. (See page 61 of draft report.) Undoubtedly, a single overseer 
may be helpful, and I concur with that the recommendation. [NOTE 7] 

As for selecting a single overseer, Congress established OSC as an 
independent federal executive agency because of the important "watch 
dog" functions it carries out. OSC has unparalleled experience and 
expertise in administering federal sector employment complaints and 
prosecuting meritorious workplace violations before the MSPB. DOL 
cannot match OSC's qualifications in those areas. Indeed, Congress 
designated my office as the administrator of the demonstration project. 
Thus, my agency is qualified to fulfill that important role, and I 
request that consideration be given to including a specific 
recommendation that OSC be named as the office that maintains 
visibility over the entire conflict resolution process for federal 
sector cases. Such a role for OSC is consistent with the principle of 
government efficiency through the elimination of duplicative effort 
and, as important, will allow OSC to, utilize its expertise over those 
claims which do not otherwise fall under the full spectrum of 
assistance that OSC currently provides to claims service members over 
which OSC has jurisdiction under the demonstration project. 

NOTE: 

[7] I also believe, however, that a further means of tackling the 
federal management issue is to reduce the segmentation of the complaint 
resolution process. Specifically, the bifurcation of technical 
assistance and investigation function and the prosecution function 
creates unnecessary delays. Eliminating that fragmentation will greatly 
improve service to service members. For example, under the 
demonstration project, my office now receives USERRA allegations within 
days of the event, not years later as was the case when cases went from 
ESGR to DOL to SOL and eventually to OSC. 

In closing, I again thank you for the opportunity to responds to the 
draft report. Should you have any questions about this letter, you may 
telephone USERRA Unit Chief Ronald K. Jaicks at (202) 254-3637. 

[End of section] 

Appendix X: GAO Contact and Staff Acknowledgments: 

GAO Contact: 

Derek B. Stewart, (202) 512-5559 or [Hyperlink, stewartd@gao.gov]: 

Acknowledgments: 

In addition to the contact named above, Brenda S. Farrell, Assistant 
Director; Renee S. Brown; Jonathan Clark; Michael J. Ferren; Stuart M. 
Kaufman; Susanna R. Kuebler; Mary Jo Lacasse; Ronald La Due Lake; Susan 
J. Mason; Jennifer R. Popovic; and Irene A. Robertson made significant 
contributions to the report. 

(350609): 

FOOTNOTES 

[1] Pub. L. No. 103-353, as amended, codified at 38 U.S.C. §§ 4301- 
4334. 

[2] In addition to military servicemembers and veterans, the act covers 
the commissioned corps of the Public Health Service and other persons 
designated by the President in time of war or national emergency. These 
persons currently include about 8,000 intermittent disaster-response 
appointees in the National Disaster Medical System. However, since the 
primary focus of this report is veterans and active and reserve 
component military members, we use the term servicemembers throughout 
this report to include all those covered by the act. 

[3] Pub. L. No. 93-508 (Dec. 3, 1974). 

[4] The reserve components include the collective forces of the 
National Guard including the Army Guard and the Air Guard, as well as 
the forces of the Army Reserve, the Naval Reserve, the Marine Corps 
Reserve, the Air Force Reserve, and the Coast Guard Reserve. 

[5] The law also gives outreach responsibilities to the Secretary of 
Veterans Affairs but we did not review actions of the Department of 
Veterans Affairs in supporting USERRA because their role is more 
limited than that of the four federal agencies that you asked us to 
review. 

[6] Federal agencies use a variety of terms to describe servicemember 
allegation of USERRA violations, including "complaints," "claims," 
"cases," "matters," and "referrals." For clarity and consistency 
throughout this report, we use the term complaint to describe these 
servicemember allegations. We refer to complaints to DOD as "informal 
complaints" and complaints to DOL, DOJ, and OSC as "formal complaints." 

[7] Veterans Benefits Improvement Act of 2004, Pub. L. No. 108-454, § 
204 (2004). 

[8] Under USERRA, reemployment provisions do not apply to brief, 
nonrecurrent positions that cannot be expected to continue indefinitely 
or for a significant period of time. 

[9] It is difficult to exceed the 5-year limit because many types of 
military duties do not count against this limit. For example, none of 
the time reserve component members spend on active duty supporting 
Operations Noble Eagle, Enduring Freedom, and Iraqi Freedom counts 
against the 5-year limit. 

[10] The ESGR had some unfilled civilian positions during our review so 
its authorized staffing level was slightly higher. 

[11] While the ESGR refers to these organizations as "state" 
committees, there are committees in the District of Columbia, Guam, 
Puerto Rico, the Virgin Islands, and Europe, as well as in the 50 
states. 

[12] Some states do not have state ombudsmen coordinators and in some 
states the complaints are channeled through full-time program support 
specialists rather than through volunteer state ombudsman coordinators. 

[13] DOL currently shares this responsibility with OSC under a mandated 
demonstration project discussed under the section on OSC. 

[14] The act specified that the report was to be transmitted by 
February 1, 1996, and annually thereafter through 2000. The act was 
amended in 2004 to require a report by February 1, 2005, and annually 
thereafter. 

[15] The Office of Personnel Management, in consultation with DOL and 
DOD, was given the authority to issue similar regulations for federal 
executive agencies. 

[16] Fiscal year 2004. 

[17] Each DOL referral includes (1) the VETS investigative file, (2) a 
memorandum prepared by the VETS regional office that makes a 
recommendation concerning the merits of the complaint, and (3) a letter 
or memorandum from the regional solicitor that analyzes the merits of 
the complaint based on the facts and the law. The letter also provides 
a recommendation as to whether DOJ should represent the servicemember. 

[18] The demonstration project was authorized by the Veterans Benefits 
Improvement Act of 2004, Pub. L. No. 108-454, § 204 (2004). 

[19] Under the demonstration project, complaints from servicemembers 
whose Social Security numbers end in odd numbers (1, 3, 5, 7, and 9) 
are referred to OSC and are no longer investigated by DOL. In addition, 
USERRA complaints that allege that a federal agency has engaged in 
prohibited personnel practices over which OSC has jurisdiction may be 
received directly by OSC regardless of the servicemembers' Social 
Security number. 

[20] The Web-based survey was actually conducted from April 12, 2004, 
and June 3, 2004, but DMDC refers to this as its May 2004 Status of 
Forces Survey of Reserve Component Members. See appendix I for 
information about the DMDC survey methodology. 

[21] The Selected Reserve includes approximately 840,000 National Guard 
or Reserve members who are paid for their participation in regularly 
scheduled training. Selected Reserve members can be involuntarily 
called to active duty under a number of different mobilization 
authorities. 

[22] Flag officers are officers who have achieved the rank of brigadier 
general or rear admiral (lower half) or above. 

[23] GAO, U.S. Office of Special Counsel's Role in Enforcing Law to 
Protect Reemployment Rights of Veterans and Reservists in Federal 
Employment, GAO-05-74R (Washington, D.C.: Oct. 6, 2004). 

[24] GAO, Reserve Forces: DOD Actions Needed to Better Manage Relations 
between Reservists and Their Employers, GAO-02-608 (Washington, D.C.: 
June 13, 2002). 

[25] The Ready Reserve includes about 1.1 million members from three 
groups: the Selected Reserve, the Individual Ready Reserve, and the 
Inactive National Guard. The Selected Reserve members are the only 
Ready Reserve members who participate in regular training, but members 
of all three groups can be involuntarily called to active duty under 
the mobilization authority invoked by President Bush on September 14, 
2001, as implemented in Exec. Order No. 13,223, 66 Fed. Reg. 48,201, 
reprinted as amended in 10 U.S.C. § 12302 note (2001). 

[26] GAO, Results-Oriented Government: GPRA Has Established a Solid 
Foundation for Achieving Greater Results, GAO-04-38 (Washington, D.C.: 
Mar. 10, 2004). 

[27] Activation is the term DOD uses to describe the process by which 
reserve component personnel are called to active duty. This call may be 
voluntary or involuntary. 

[28] Between October 1, 2004, and June 30, 2005, DOL received 862 
formal servicemember employment complaints. OSC also received 69 
complaints that in previous years would have gone to DOL. If the 
complaint figures for the fourth quarter are consistent with the 
figures for the first three quarters, the final fiscal year 2005 
complaint number would be 1,241 and would fall between the fiscal year 
2002 and 2003 complaint levels. 

[29] However, as noted earlier, the demonstration project will affect 
the number of complaints filed at OSC since the project allows OSC to 
receive complaints directly from certain servicemembers. 

[30] Because USERRA was passed in October 1994, DOJ and OSC would not 
have received USERRA cases from DOL from 1989 through 1994. 

[31] The projected population excluded reserve component members who 
were military technicians, on full-time active duty, on state active 
duty, or currently activated. 

[32] Differential pay is money that is paid to an employee to make up 
the difference in lost wages when an employee's civilian salary is 
higher than his or her military salary. 

[33] Reserve Officers Association data also indicate that some of the 
nation's largest employers are providing National Guard and Reserve 
members with increased support. Since 1990, the Reserve Officers 
Association has conducted annual surveys of Fortune 500 companies, 
which identified many corporate policies that exceed USERRA 
requirements. For example, the survey results published in 2003 showed 
that 132 companies paid full salaries, pay differentials, or a 
combination of salaries and differentials to their National Guard and 
Reserve employees who were called to emergency active duty. While the 
published Reserve Officers Association survey results show that many 
companies have increased their benefits to National Guard and Reserve 
employees over the years, some significant limitations prevent the data 
from being used to demonstrate trends in overall USERRA compliance or 
employer support. First, the policies of Fortune 500 companies do not 
necessarily reflect employers in general. Second, the companies 
responding to the survey differed from year to year. Third, survey 
response rates were generally low. For example, the 2003 response chart 
listed only 154 companies, the 2002 chart 132 companies, and the 2001 
chart 119 companies. Finally, some survey responses on health plans did 
not always clearly distinguish between USERRA compliance and extra 
benefits. 

[34] GAO, Reserve Forces: DOD Actions Needed to Better Manage Relations 
between Reservists and Their Employers, GAO-02-608 (Washington, D.C.: 
June 13, 2002). 

[35] Because the ESGR has assembled a fluid group of ombudsmen made up 
primarily of volunteers, we recognized that many of the ombudsmen who 
were handling complaints in previous years were no longer ombudsmen 
when we did our survey. Therefore, we did not attempt to capture annual 
complaint data and asked for total workload figures to obtain a rough 
estimate of informal complaint numbers that we could compare to the 
formal complaint data provided by DOL. 

[36] These other problems included issues related to pensions, upgrade 
and refresher training, and health insurance (continuance during 
military service). 

[37] Data suggest that employer violations of USERRA could be tied not 
only to employer knowledge of the law but also to servicemember 
understanding of the law. The May 2004 DMDC survey showed that the 
incidence of USERRA problems was lower among survey respondents who had 
received USERRA briefings than among respondents who had not received 
briefings. However, the cross tabulation of the results from the USERRA 
briefing question and the USERRA problem question yielded small 
subgroups and consequently cannot clearly establish a relationship 
between briefings and problems for the entire Selected Reserve 
population. 

[38] 38 U.S.C.§ 4333. The Secretary of Veterans Affairs shares these 
outreach responsibilities with the Secretary of Defense and Secretary 
of Labor. 

[39] The ESGR's Web site is www.esgr.mil, and its toll-free telephone 
number is 800-336-4590. The VETS Web site is www.dol.gov/vets and its 
toll-free telephone number is 866-487-2365. 

[40] About 50 percent of the requests came from active military or 
National Guard or Reserve members, about 29 percent from employers, and 
the remainder from the media and other groups and individuals. 

[41] OSC's Web site is www.osc.gov, and the telephone number for its 
USERRA unit is 202-254-3620. 

[42] GAO, Reserve Forces: DOD Actions Needed to Better Manage Relations 
between Reservists and Their Employers, GAO-02-608 (Washington, D.C.: 
June 13, 2002). 

[43] DOD has more than a million Ready Reserve members, who are divided 
into three groups. The largest group is the Selected Reserve, which 
contains more than 800,000 members who train regularly for pay. The 
second group, the Individual Ready Reserve, contains more than 300,000 
members. These members were previously trained during periods of active 
duty service, but do not participate in any regularly scheduled 
training and are not paid as members of the Individual Ready Reserve. 
The last and smallest group is the Inactive National Guard, which 
contains fewer than 2,000 members who are temporarily unable to 
participate in training but who wish to remain attached to their 
National Guard units. 

[44] During the same period, 21 Inactive National Guard members were 
called to active duty. 

[45] DOJ's Civil and Civil Rights Divisions have separate systems but 
the divisions' USERRA responsibilities cover different time periods. 

[46] Shortly before we ended our review, VETS began identifying the 
complaints that had gone to the ESGR prior to coming to DOL. 

[47] We actually reviewed 59 paper complaint files because one of the 
files we were given to review contained the wrong complaint number. 
Officials later located the correct file but we did not review it. 

[48] Agency officials told us that they had "reconstructed" the four 
missing files, but we did not review the reconstructed files. 

[49] Officials from this region claimed that they were aware of 
problems with reopened cases in their region and had addressed the 
problem. However, one case was closed and reopened six times before the 
problem was addressed. We did not review all of the more than 430 
reopened cases to verify whether or not the cases had been reopened 
properly or whether problems with reopened cases had been corrected in 
this region or in DOL's other regions. 

[50] During our review of 59 paper complaint files, we reviewed 28 
reopened complaints. We found that some of these complaints were closed 
and then reopened for valid reasons. However, other case closures 
simply stopped the processing time clock without addressing the 
servicemembers' complaints. For example, one case was closed while the 
investigator was waiting to receive information from an employer. 
Another was closed to allow the investigator time to consult with the 
solicitor's office. 

[51] For example, one VETS goal is to close 85 percent of USERRA 
complaints within 90 days of the date the complaints were filed. 
However, a complaint may still need to go to DOJ or OSC for final 
resolution after it has been closed by the VETS investigator. In 
addition, DOJ's Assistant Attorney General has directed that, where the 
Civil Rights Division believes representation is warranted, a 
representation recommendation should be made within 90 days of receipt 
of the meritorious referral from DOL. Furthermore, the 90 days does not 
count any time that the ESGR spent trying to resolve the complaint. 

[52] As noted earlier, the dates in the VETS system do not always match 
the dates in the other systems. 

[53] VETS procedures specify that if the servicemember provides the 
investigator with additional evidence for the initial complaint filed, 
the existing complaint is re-opened and the information is added. 
However, if the servicemember lodges a new issue, a new complaint is 
opened. 

[54] Reopened complaints are assigned a complaint number, which begins 
the same as the original complaint number but which contains a "R" on 
the end of the number to indicate that it is a reopened complaint. 
Complaints that are reopened twice contain a "R2" at the end, those 
that are reopened three times a "R3," etc. 

[55] We collected information on the 52 complaints in July 2005. At 
that time, DOL had closed 24 complaints, DOJ and OSC had closed 20 
complaints, 4 complaints were still open at DOL, and 4 complaints were 
open at DOJ or OSC. 

[56] Because dates in the VETS system do not always match the dates in 
other systems, the calculated processing and elapsed times may not be 
accurate for complaints that have been referred from the VETS 
investigator to DOJ or OSC. Therefore, the figures presented here 
should not be considered precise reflections of processing times or 
elapsed times. The figures are presented because they are the best data 
available to illustrate the difference between the agencies' focuses on 
outputs and the servicemembers' concern with results. 

[57] 38 U.S.C. § 4332 (2005). 

[58] Data analysis was performed using DOL's database, which became 
officially operational beginning fiscal year 1997. 

[59] GAO, Reserve Forces: DOD Actions Needed to Better Manage Relations 
between Reservists and Their Employers, GAO-02-608 (Washington, D.C.: 
June 13, 2002). 

[60] This response rate (number of in scope respondents/estimated total 
number of in scope ombudsmen in the study population) is calculated 
using the RR3 response rate formula from the American Association for 
Public Opinion Research. In this formula we assumed that the percentage 
of nonrespondents who were within the scope was the same as the 
percentage of the respondents who were within the scope. 

[61] GAO, Reserve Forces: DOD Actions Needed to Better Manage Relations 
between Reservists and Their Employers, GAO-02-608 (Washington, D.C.: 
June 13, 2002). 

GAO's Mission: 

The Government Accountability Office, the investigative arm of 
Congress, exists to support Congress in meeting its constitutional 
responsibilities and to help improve the performance and accountability 
of the federal government for the American people. GAO examines the use 
of public funds; evaluates federal programs and policies; and provides 
analyses, recommendations, and other assistance to help Congress make 
informed oversight, policy, and funding decisions. GAO's commitment to 
good government is reflected in its core values of accountability, 
integrity, and reliability. 

Obtaining Copies of GAO Reports and Testimony: 

The fastest and easiest way to obtain copies of GAO documents at no 
cost is through the Internet. GAO's Web site ( www.gao.gov ) contains 
abstracts and full-text files of current reports and testimony and an 
expanding archive of older products. The Web site features a search 
engine to help you locate documents using key words and phrases. You 
can print these documents in their entirety, including charts and other 
graphics. 

Each day, GAO issues a list of newly released reports, testimony, and 
correspondence. GAO posts this list, known as "Today's Reports," on its 
Web site daily. The list contains links to the full-text document 
files. To have GAO e-mail this list to you every afternoon, go to 
www.gao.gov and select "Subscribe to e-mail alerts" under the "Order 
GAO Products" heading. 

Order by Mail or Phone: 

The first copy of each printed report is free. Additional copies are $2 
each. A check or money order should be made out to the Superintendent 
of Documents. GAO also accepts VISA and Mastercard. Orders for 100 or 
more copies mailed to a single address are discounted 25 percent. 
Orders should be sent to: 

U.S. Government Accountability Office 

441 G Street NW, Room LM 

Washington, D.C. 20548: 

To order by Phone: 

Voice: (202) 512-6000: 

TDD: (202) 512-2537: 

Fax: (202) 512-6061: 

To Report Fraud, Waste, and Abuse in Federal Programs: 

Contact: 

Web site: www.gao.gov/fraudnet/fraudnet.htm 

E-mail: fraudnet@gao.gov 

Automated answering system: (800) 424-5454 or (202) 512-7470: 

Public Affairs: 

Jeff Nelligan, managing director, 

NelliganJ@gao.gov 

(202) 512-4800 

U.S. Government Accountability Office, 

441 G Street NW, Room 7149 

Washington, D.C. 20548: