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: Published: Oct 6, 2004. Publicly Released: Oct 18, 2004.

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The U.S. Office of Special Counsel (OSC) enforces the rights of federal employees and applicants for federal employment under the Uniformed Services Employment and Reemployment Rights Act (USERRA) of 1994. USERRA provides for the employment and reemployment rights of federal and nonfederal employees who leave their employment to perform military service. USERRA also prohibits discrimination against persons because of their military service. In light of the significant number of National Guard members and reservists serving in the war in Iraq and in other conflicts who will be demobilized and returning to the federal workforce in the coming months, the Ranking Minority Member, Senate Committee on Health, Education, Labor, and Pensions, asked us to review issues surrounding enforcement of the act in the federal sector, particularly by OSC. Under USERRA, a federal employee or applicant who believes that his or her USERRA rights have been violated may file a claim with the Department of Labor's (DOL) Veterans' Employment and Training Service (VETS), which investigates and attempts to resolve the claim. If VETS cannot resolve the claim, the individual may request that it be referred to OSC. In addition to handling USERRA claims, OSC handles claims of prohibited personnel practices by federal agencies. In a March 2004 report, we discussed OSC's performance in processing cases filed with the agency, including those filed under USERRA. This report provides information on (1) how OSC carries out its responsibilities under USERRA, (2) the average number of days OSC took to process USERRA claims from fiscal years 1999 through 2003, (3) changes OSC has made to handle current USERRA claims and any increase in claims, and (4) changes OSC believes are necessary to make the handling of USERRA claims in the federal sector more efficient and effective.

OSC's responsibility under USERRA is to determine the merits of claims it receives from DOL and to seek corrective action on behalf of individuals in federal employment whose claims have merit. In its self-described role as a "special prosecutor" of such claims, OSC attempts to resolve a claim that has merit first by negotiating with the claimant's federal employer. If negotiation fails, OSC proceeds to initiate legal action against the employer before the Merit Systems Protection Board and then, if necessary, the U.S. Court of Appeals for the Federal Circuit. OSC determines the merits of each claim by performing its own legal analysis and independently reviewing the facts and law applicable to the claim. OSC agreed with DOL's recommendation about whether or not a claim had merit in about 73 percent of the claims (43 of 59) OSC processed from fiscal years 1999 through 2003. After conducting its own review of these claims, OSC determined that 5 of the 59 claims had merit. OSC took an average of about 145 days to process the 59 USERRA claims that the agency received from fiscal year 1999 through 2003. According to OSC, it obtained full corrective action from the involved federal agency for all 5 claims that OSC determined had merit during fiscal years 1999 through 2003. Recently, OSC has taken several steps that agency officials said would be helpful in processing USERRA cases more quickly and in dealing effectively with anticipated increases in new USERRA cases. Most significantly, in April 2004, OSC established its Special Projects Unit (SPU) to act as a "SWAT" team to address high-priority case processing needs, including the handling of all USERRA cases. By assigning all USERRA cases to SPU and detailing attorneys specializing in these cases to SPU, OSC's objective is to ensure that these cases get priority attention. OSC officials also reported that the agency is working closely with the Department of Defense's National Committee for Employer Support of the Guard and Reserve to explain to federal employees their rights under USERRA. Also, OSC said it maintains Web-based and telephone "hot lines" that provide a source of information and assistance about employer and employee rights and responsibilities under USERRA. The Special Counsel said that to help ensure that OSC has all of the information that it needs to resolve a claim, OSC should be allowed to get involved in a USERRA claim while the investigation at DOL is ongoing, rather than having to wait until DOL finishes it and refers the claim to OSC. In this regard, OSC and DOL are discussing amendments to a memorandum of understanding between the two agencies that would bring OSC into the process earlier. According to DOL, OSC would become involved once VETS finished its investigation and sent the claim to DOL's regional solicitor. OSC has asked DOL to identify difficult cases that would benefit from OSC's earlier involvement. DOL opposes a change that would give OSC authority to receive and process USERRA claims, noting that if OSC performs initial investigations it would create inconsistency in the federal USERRA process. Second, the Special Counsel said if OSC was given the authority under USERRA to pursue disciplinary actions against offending federal supervisors in cases in a manner similar to authority the agency has in enforcing other federal employment violations, supervisors would be held accountable for upholding the law. Currently, under USERRA, OSC can seek only corrective action from the federal agency.

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