EXECUTIVE SUMMARY

Not all employers understand their obligations to their employees who, through active duty military service, meet their own obligations to our nation.  Some servicemembers, mostly members of the National Guard and Reserve who return from active duty, are turned away by their civilian employers upon their return.  Some, who also serve their country as federal civilian employees, return from active duty only to find that the government that sent them to war is unwilling to welcome them back to their jobs. 

The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) strengthened the enforcement mechanism for federal employees by giving the Merit Systems Protection Board (MSPB) explicit jurisdiction over USERRA violations by federal executive agencies. 

Under USERRA, a person claiming a violation by any employer may make a complaint to the Department of Labor’s Veterans’ Employment and Training Service (DOL-VETS) which must investigate and attempt to resolve the matter.  If DOL-VETS cannot resolve a complaint involving a federal executive agency, the individual may appeal to the MSPB, or request a referral to the U.S. Office of Special Counsel (OSC) for possible representation before the MSPB and, if necessary, the U.S. Court of Appeals for the Federal Circuit.

In 2004 Congress mandated a demonstration project whereby OSC would receive roughly half of federal USERRA claims directly from claimants.  By combining both the investigative and prosecutorial functions in one agency, Congress hoped to determine whether OSC could provide better service to federal employees filing USERRA claims.  

OSC obtained corrective action for service members in more than one in four of the claims filed with us and took less than 120 days on average to resolve cases.  OSC achieved this high rate of corrective action through its thorough investigations, expert analysis of the law, ability to educate federal employers about the requirements of USERRA, and a credible threat of litigation before the MSPB.  We have the ability to get quick and effective relief, while providing a single place of contact with no confusion for all service members who work for the federal government. 

The demonstration project expired on December 31, 2007.  OSC lost the authority to accept directly USERRA claims made by federally-employed servicemembers.  Our role in USERRA enforcement continues; if DOL-VETS is unable to resolve a claim, a claimant may request that the matter be referred to OSC.  We may then represent the claimant before the MSPB.  

Granting OSC exclusive jurisdiction over the federal sector USERRA cases would ensure that federal employee claimants would benefit from having a single agency resolve their claim. For this reason, federal sector USERRA investigation and enforcement is a natural “fit” for OSC.    We don’t know when they will start returning home in greater numbers, boosting demand for USERRA enforcement.   We believe that adequate information has been developed to support a decision by Congress to assign the task of investigating and enforcing USERRA claims by federal employees to OSC.
INTRODUCTION

Chairwoman Herseth Sandlin, Ranking Member Boozman, and members of the committee: good morning, and thank you for the opportunity to testify today on important matters of concern to our servicemembers, their families, and ultimately our national security.

My name is Scott J. Bloch and I am Special Counsel of the United States and head of the U.S. Office of Special Counsel (OSC), an independent investigative and prosecutorial agency.   

I appreciate the opportunity to appear before you today to provide my perspectives on the enforcement of the Uniformed Services Employment and Reemployment Rights Act, or USERRA.  While the protections provided under this statute have not expired, there has been a significant change recently in how it is enforced for federal employees who are also members of the National Guard and Reserve.

Members of the U.S. military serve our nation through their readiness for combat.  Members of the U.S. military are graduates of one of the world’s largest training organizations, with highly specialized knowledge in areas such as engineering, healthcare and information technology. 

As veterans returning to civilian life or continuing to serve as members of the National Guard and Reserve, they can be superb employees because of the skills they have acquired as members of the military.  Moreover, their military experience builds judgment, dedication, resourcefulness, and leadership – personal qualities that should be valued by employers.

Unfortunately, not all employers understand their obligations to their employees who, through active duty military service, meet their own obligations to our nation.  Some servicemembers, mostly members of the National Guard and Reserve who return from active duty in Iraq and Afghanistan combat zones and other assignments, are turned away by their civilian employers or not afforded their full rights and benefits upon their return.  

It is difficult to imagine an employer welcoming back a returning service member with words to the effect, “Welcome back – you’re fired!”  But it happens.

Some members of the National Guard and Reserve, who also serve their country as federal civilian employees, return from active duty only to find that the government that sent them to war is unwilling to welcome them back to their jobs.  Or, they may reinstate them, but with less pay, status, or benefits to which they are entitled. 

Civilian employees of the federal government appear to represent about 25 percent of the National Guard and Reserve.  The USERRA law specifies that the federal government is supposed to be a “model” employer, yet the very government that sends them forth into combat might deny them their livelihood when they come marching home. 

PROTECTING VETERANS’ JOBS

 The jobs of returning veterans have been protected since 1940, when the Veterans’ Reemployment Rights (VRR) law was enacted.  The VRR law served our nation reasonably well for more than half a century.  Over the years, however, numerous piecemeal amendments and sometimes conflicting judicial constructions made the law confusing and cumbersome.  There were also some loopholes in the VRR enforcement mechanism, especially as it applied to the federal government as a civilian employer. 

Better protections were needed, and in 1994, Congress enacted and President Clinton signed into law the Uniformed Services Employment and Reemployment Rights Act.  USERRA strengthened the enforcement mechanism for federal employees by giving the Merit Systems Protection Board (MSPB) explicit jurisdiction to adjudicate allegations of USERRA violations by federal executive agencies as employers. 

Under USERRA, a person claiming a violation by any employer (federal, state, local, or private sector) is permitted to make a complaint to the Department of Labor’s Veterans’ Employment and Training Service (DOL-VETS) which must investigate and attempt to resolve the matter. 

If DOL-VETS cannot resolve a complaint involving a private, state, or local employer, the individual may file a private lawsuit or request a referral to the Attorney General for possible representation in federal district court. 

If the employer is a federal executive agency, the individual may appeal to the MSPB, or request a referral to OSC for possible representation before the MSPB and, if necessary, the U.S. Court of Appeals for the Federal Circuit.

USERRA thus expanded OSC’s role as protector of the federal merit system and federal workplace rights by giving OSC prosecutorial authority over federal-sector USERRA claims.  However, it also established a bifurcated process in which DOL-VETS first investigates and attempts to resolve such claims, followed by possible OSC prosecution before the MSPB when there is no resolution by DOL-VETS.

IMPROVING PROTECTION FOR FEDERAL EMPLOYEES

Recognizing inefficiencies inherent in this process, as well as OSC’s unique expertise in investigating and prosecuting federal employment claims, Congress included in the Veterans Benefits Improvement Act of 2004 (VBIA), a demonstration project whereby OSC would receive roughly half of federal USERRA claims from the beginning (i.e., when they are filed and prior to investigation).[1] 

This demonstration project eliminated (for some claims) the often cumbersome, time-consuming, bifurcated process whereby federal USERRA claims bounce around different federal agencies before being resolved by allowing OSC to apply its extensive experience investigating other federal personnel laws to USERRA.  By combining both the investigative and prosecutorial functions in one agency, Congress hoped to determine whether OSC could provide better service to federal employees filing USERRA claims.

The results of the demonstration project speak for themselves: OSC obtained corrective action for service members in more than 25 percent of the USERRA claims filed with us and took less than 120 days on average to resolve cases (which includes prosecution as well as investigative time).  Twenty-five percent is a very high corrective action rate when you consider that the rate of positive findings and corrective action for governmental investigative agencies is usually well under ten percent.  OSC achieved this high rate of corrective action through its thorough investigations, expert analysis of the law, ability to educate federal employers about the requirements of USERRA, and a credible threat of litigation before the MSPB.

In addition to obtaining corrective action for the individual claimant, in our role as protector of the federal merit system, OSC seeks “systemic” corrective action to prevent future violations by an agency.  For example, we have assisted agencies in modifying their leave and promotion policies to comply with USERRA, provided USERRA training to agency managers and HR specialists, and required agencies to post USERRA information on their websites and in common areas.

Our centralized and straight-line process has ensured that the USERRA claims we receive are resolved efficiently, thoroughly, and, most important, correctly under the law.  The numerous corrective actions we obtained for returning servicemembers include back pay, promotions, restored benefits and seniority, time off and systemic changes that prevent future USERRA violations where they work.

Congress tied the outcome of the USERRA demonstration project to an evaluation by the Government Accountability Office (GAO).  OSC participated in the evaluations conducted by the GAO, but we were disappointed that their draft report did not meet the April 1, 2007 deadline mandated by Congress.  Instead, the final report was published only two weeks before the congressional August recess.  This left Congress with almost no opportunity to act on USERRA before the demonstration project was to conclude on September 30, 2007.  

Moreover, the GAO report did not address the central question that the demonstration project was intended to answer: are federal sector USERRA claimants better served when they are permitted to make their complaints directly to OSC, for both investigation and litigation, bypassing the bifurcated process?  We submit that the answer is an emphatic “yes.”

The demonstration project was extended by Congress by language included in the FY2008 Continuing Resolution until December 31, when OSC lost the authority to accept directly USERRA claims made by federally-employed servicemembers.   Our role in USERRA enforcement continues; if DOL-VETS is unable to resolve a claim, the claimant may request that the matter be referred to OSC, and we may then represent the claimant before the MSPB.

OSC: READY TO ENFORCE USERRA FOR FEDERAL EMPLOYEES

We of the U.S. Office of Special Counsel are privileged to be engaged in the enforcement of USERRA.  Both as Special Counsel, and as a father of a Marine, I am proud of the work we are doing to protect the employment rights of those who give of themselves for our national security.  

OSC is uniquely suited to assist members of the National Guard and Reserve who, upon their return from active duty, even from combat and with combat-related injuries, are turned away by their federal employers, or not afforded the full protections or benefits to which they are entitled.  Because the mission of OSC is to protect the federal merit system, our specialized USERRA unit is staffed with attorneys and investigators who are experts in federal personnel law and have years of experience investigating, analyzing, and resolving allegations of violations of federal employment rights. 

OSC is the only federal investigative agency that can provide a true single point of contact for federal employees making claims under USERRA.  Even as exclusive investigative jurisdiction has returned to DOL-VETS, USERRA cases involving Prohibited Personnel Practices still have to be passed to OSC. 

We are proud of our achievements enforcing USERRA.  We filed the first-ever prosecutions by OSC in the law’s history, obtaining corrective action in several cases that had been delayed for years or considered non-winnable.  For example, in that first ever prosecution, we obtained more back pay than originally requested by the claimant, her attorneys fees, and interest on those amounts.  The case of an Army Corps of Engineers employee, who was not reemployed after serving in the Air Force, remained unresolved until OSC received the case.  We prosecuted before the MSPB and obtained full corrective action for the service member, including $85,000 in back pay, reemployment in his former position, and full restoration of benefits.  And, when an injured Iraq war veteran returned from duty only to be sent home by his federal employer because he could no long perform his former job, we convinced the agency to find him a suitable job consistent with his physical limitations, along with back pay.

That same year, I authorized two other USERRA prosecutions.  Once again, we obtained full corrective action for both servicemembers.  They testified before the House Veterans’ Affairs Committee in June 2004 about the difficulties confronting a service member who files a USERRA claim.  I also testified that day – coincidentally same day we filed the first ever OSC prosecution under USERRA.  It was not that there were not meritorious claims before – there just had not been the commitment to send a message to the federal government that USERRA violations would not be tolerated.

I also set up the first unit at OSC dedicated to USERRA led by an experienced litigator and national USERRA expert.  I made it a priority of my administration at OSC to make a difference in the enforcement of USERRA along with other laws that OSC enforces. 

We worked closely with the House Veterans’ affairs committee to improve conditions for service members who had encountered long delays, sometimes of three years or more, at the Department of Labor.  And when (or if) the service member was informed of the right to have OSC consider the claim for prosecution, OSC would invariably have to reinvestigate the matter to unearth the real facts. 

The VBIA demonstration project has been a significant boon to service members who were lucky enough to have a social security number that ended in an odd number.  We have the ability to get quick and effective relief, while providing a single place of contact with no confusion for all service members who work for the federal government. 

We are committed to getting as much relief as the law allows for our brave service members, and doing so as quickly as possible.  These patriots have given their all in the service of this great nation.  They should never be hung out to dry by a long, drawn-out, confusing process.  OSC is passionate about obtaining relief for all who come to us, and no less for the soldiers of our country who also serve in the federal government. 

Granting OSC exclusive jurisdiction over the federal sector USERRA cases would ensure that federal employee claimants would benefit from having a single agency resolve their claim. For this reason, federal sector USERRA investigation and enforcement is a natural “fit” for OSC.    Moreover, it would remove the burden from the Department of Labor’s Veterans’ Employment and Training Service to navigate federal personnel law, freeing them to focus on providing their best service to USERRA claimants from the private sector and those in state and local governments. 

Thus, the benefit to service members would be doubly positive – for federal service members who would benefit from OSC’s specialized experience, and for those private sector service members who would benefit from greater attention to their claims at DOL-VETS. 

THE COMING USERRA “SURGE”

Today, America is in the middle of the largest sustained military deployment in thirty years.  That deployment is not limited to the approximately 200,000 servicemembers in Iraq and Afghanistan at this moment.  In recent years, the number of members of the National Guard and Reserve mobilized at one time peaked at more than 212,000.  As of the end of January, the Department of Defense reported that 95,324 members of the National Guard and Reserve had been mobilized and were on active duty.  It is when these servicemembers end their active duty that they may find they are no longer welcome to return to their civilian jobs and are eligible to file a claim under USERRA.

Right now, with returning war vets a comparative trickle, USERRA claims are in the hundreds.  What will happen if and when that trickle turns into a flood?  Will we see a “spike” in the number of claims filed by returning servicemembers who have been turned away from their employers?  Will the government demonstrate its support for our troops by being fully ready to provide prompt and effective action on these claims?

We don’t know when they will start returning home in greater numbers, boosting demand for USERRA enforcement.   We believe that adequate information has been developed to support a decision by Congress to assign the task of investigating and enforcing USERRA claims by federal employees to OSC.  We are poised to assume this responsibility and to do our part in making their transition back to civilian life as smooth as possible. 

Thank you for your attention and I look forward to your questions.

[1] Under the demonstration project, OSC had exclusive investigative jurisdiction over federal-sector USERRA claims where: 1) the claimant had a Social Security Number ending in an odd digit, or 2) the claimant alleged a Prohibited Personnel Practice (PPP) as well as a USERRA violation (regardless of Social Security Number).  DOL-VETS retained investigative jurisdiction over all other federal-sector USERRA claims.