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 servicemembers in more than 30 percent 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 centralized point of contact for all service members who work for the Federal government. 

The demonstration project expired on December 31, 2007, removing OSC 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 benefit Federal employee claimants by having a single agency receive, investigate and resolve their claims. Moreover, given our expertise and experience in protecting Federal employees from prohibited personnel practices, Federal sector USERRA investigation and enforcement is a natural “fit” for OSC.    We don’t know when our servicemembers will start returning home in greater numbers, boosting demand for USERRA enforcement.   But, we believe that OSC has demonstrated to Congress that it should assign this important responsibility solely to OSC.

INTRODUCTION

Chairwoman Herseth Sandlin, Ranking Member Boozeman, 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 James P. Mitchell and I am Chief of Staff and Director of Communications 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 our perspectives on the enforcement of the Uniformed Services Employment and Reemployment Rights Act, or USERRA.

The U.S. Office of Special Counsel values the tremendous commitment of our military men and women.   We are dedicated to protecting the employment rights of those who serve our nation both as members of the Federal civilian workforce and as members of our Armed Forces.  We honor our commitment by vigorously enforcing USERRA on their behalf, including, when necessary, by prosecuting Federal employers before the U.S. Merit Systems Protection Board (MSPB).

While our servicemembers understand and fulfill their obligations to our nation, unfortunately, not all employers understand and fulfill their obligations to their employees who serve on active duty.  Some servicemembers, mostly members of the National Guard and Reserve who return from active duty in Iraq and Afghanistan combat zones and elsewhere, 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.  This is especially troubling when the very government that sent them to war does not welcome them back to their government jobs upon their return, or begrudgingly reinstates them, but with less pay, status, or benefits than they are entitled to under the law. 

Civilian employees of the Federal government represent about 25 percent of the National Guard and Reserve.  Under USERRA, the Federal government is supposed to be a “model” employer.  Yet the very government that sends its employees forth into combat might deny them their livelihood when they return home. 

PROTECTING JOBS OF VETERANS

 Protecting the jobs of returning veterans is not a new concept.  The Veterans’ Reemployment Rights (VRR) law was enacted in 1940 to provide those protections.  Over time, through a series of amendments and sometimes conflicting judicial constructions, it became cumbersome and confusing.  It had enforcement loopholes as well, especially regarding the Federal government as a civilian employer. 

Enacted in 1994, USERRA improved job protections for veterans.  It strengthened the enforcement mechanism for Federal employees by giving the 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 referral to OSC for prosecution before the MSPB when there is no resolution by DOL-VETS.

IMPROVING PROTECTION FOR FEDERAL EMPLOYEES

Congress recognized the inefficiencies in this process, as well as OSC’s unique expertise in investigating and prosecuting Federal employment claims.  In 2004, Congress passed the Veterans Benefits Improvement Act (VBIA), and included a demonstration project to determine whether OSC could provide better service to Federal employees filing USERRA claims.  

Under this demonstration project, roughly half of Federal USERRA claims were submitted directly to OSC for investigation and prosecution between February 2005 and December 2007.[1] During this period, the time-consuming process that shuffled Federal USERRA claims between different Federal entities, before being resolved by OSC, was eliminated. 

During the demonstration project, OSC obtained corrective action for service members in over 30 percent of the USERRA claims filed with us, a rate that is significantly higher than that for most governmental investigative agencies.  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.

A Government Accountability Office (GAO) study of the demonstration project showed that it took less than 120 days on average for OSC to resolve cases (which includes prosecution as well as investigative time).  

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

In addition to obtaining corrective action for the individual employee, 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.

In a specific case involving the U.S. Postal Service, OSC was instrumental in restoring military leave time that was denied to an Agency employee. In addition, we worked with the agency to ensure that managers accommodate employees who perform military duty by identifying and scheduling replacement workers and posting USERRA informational posters in locations accessible to employees. The claimant indicated that after the Special Counsel’s involvement, he noticed a greater interest in the agency’s efforts to recognize and support veterans.

Congress tied the outcome of the USERRA demonstration project to a GAO evaluation.  OSC participated in this evaluation, but GAO’s 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, leaving Congress with no opportunity to act on USERRA before the demonstration project would 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 of referral between agencies?  We submit that the answer is an emphatic “yes.”

The demonstration project was ultimately extended by Congress thorough the FY2008 Continuing Resolution to December 31, 2007, when OSC lost the authority to accept directly USERRA claims made by federally employed servicemembers.   As a result, OSC’s role is again limited to providing representation to Federal employees who request that their USERRA claims be referred to OSC for possible representation before the MSPB when DOL-VETS cannot resolve their claims.

OSC: POISED TO HANDLE ALL FEDERAL USERRA CLAIMS

Although our role is now reduced considerably, we at OSC are privileged to be engaged in the Federal sector USERRA enforcement.  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 alleged violations of Federal employment rights. 

We are proud of our achievements in 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 prosecution, we obtained more back pay than originally requested by the claimant, 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 servicemember, including $85,000 in back pay, reemployment in his former position, and full restoration of seniority and benefits. 

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.

Another case involved a claimant who alleged that the U.S. Department of Homeland Security (DHS) mischarged his leave and imposed a debt on him as a result of his service in the Air Force Reserve.  At the USERRA unit’s request, DHS took a series of actions necessary to make the claimant whole, including restoring annual leave, cancelling the debt, and reimbursing him for lost pay.

Early this year, a more than seven-year wait for USERRA relief ended for an Air National Guardsman, who lost his Federal job while on active military duty.  The servicemember filed a USERRA complaint with DOL-VETS, in November 2000.  In 2004, after DOL-VETS had been unable to resolve his claim, he requested it be referred to OSC.  It was not.  However, within a few days of the matter being raised in a Senate hearing by Alaska Senator Lisa Murkowski, the case was finally referred to OSC last November.  Within a few months, OSC negotiated a settlement that provided the servicemember with 65 months of back pay plus interest, and restored his Federal retirement benefits as if he’d been properly reemployed in June 2000. 

Many of the claimants described above could have received relief faster had OSC been able to receive and investigate their claims from the beginning, without the need for attempted resolution and referral by DOL-VETS.  As the GAO report found, the referral process alone adds an average of over eight months to the resolution of such claims (i.e., from the time VETS completes its investigation and attempted resolution to the time DOL’s Solicitor’s Office refers the claim to OSC).  In the last case described above, this process took years and delayed significant relief for a deserving servicemember.

By authorizing OSC to directly accept some Federal USERRA claims from the time they are filed, the recently concluded USERRA demonstration project eliminated the cumbersome referral process and allowed claimants to obtain faster, more effective relief.  Instead of having to rely on another agency’s investigation and frequently having to conduct additional investigation, OSC has control of the investigation throughout.  Moreover, OSC can negotiate with the agency and more quickly file with the MSPB, if necessary.  Agencies are aware of the credible threat of litigation by OSC and more willing to quickly resolve meritorious claims as a result.  Claimants benefit from a more efficient, transparent process that increases accountability and communication by having a single entity handle and resolve their claim from beginning to end.

In cases referred from DOL to OSC, OSC has often found that further investigation is needed to make a determination, or that the claim has not been fully or properly analyzed by DOL under the law.  For instance, in two of the cases filed by OSC with the MSPB during the current Special Counsel’s term, DOL recommended that OSC not afford the claimant representation (i.e., that the claim was non-meritorious), but OSC disagreed and obtained full relief for the servicemembers.  Authorizing OSC to directly receive and investigate all Federal USERRA claims would eliminate these problems and extend the benefits described above to all Federal servicemembers.

OSC is 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 as civilians in the Federal government. 

That passion extends beyond resolution of individual USERRA claims.  Early this month, the Administrator of the Office of Personnel Management (OPM) issued a memorandum to heads of executive departments and agencies changing a leave policy for Federal employees returning from active duty.  Previously, OPM’s guidance allowed five days of excused absence for a returning servicemember, but only upon return from a single deployment.  The revised policy states that Federal civilian employees returning from active duty may receive five days of uncharged leave (excused absence) from their civilian duties each time they return from deployment.  It also allows employees who have already returned to work and did not receive these five days of excused absence to take them at a time mutually agreeable to the employee and the agency.

This policy change was the result of an OSC initiative: in a July 1 letter to OPM Administrator Linda Springer, the Special Counsel noted that the policy of allowing only a single five-day period of excused absence for a returning service member was inconsistent the OPM Administrator’s own sentiment expressed in a 2003 memorandum implementing the policy:

“Many of our employees have endured great disruption to their families and their normal lives as a result of their service in the war against terrorism.  Therefore, I join the President in urging that agencies do everything possible to ease their return to civilian life.”

The Special Counsel’s letter noted that many Federal employees have been deployed multiple times, and have suffered on multiple occasions the “disruption to their families and their normal lives” mentioned in OPM’s memorandum.  He cited studies indicating an increased incidence of post-traumatic stress disorder and other psychological problems in those who have served multiple tours.  Suggesting that returning military personnel have an even greater need for five days of administrative leave after a subsequent tour than after their first, he requested that OPM change its guidance and OPM responded favorably.   

In sum, granting OSC exclusive jurisdiction over all Federal sector USERRA cases would benefit Federal employee claimants by having a single, specialized agency resolve their claims, as evidenced by OSC’s track record in USERRA enforcement and its performance during the demonstration project. For these reasons, and given OSC’s almost 30 years’ experience in investigating and resolving Federal employment claims, Federal sector USERRA investigation and enforcement is a natural “fit” for OSC and its mission.    Moreover, such a change would free DOL-VETS from having to navigate Federal personnel law (OSC’s particular expertise), allowing DOL-VETS to focus on serving the larger volume of 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 non-Federal service members who would benefit from greater attention to their claims at DOL-VETS. 

USERRA “SURGE” AHEAD?

Today, America is in the middle of the largest sustained military deployment in 30 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 August 6, the Department of Defense reported that 107,754members of the National Guard and Reserve had been mobilized and were on active duty.  

With Federal employees comprising about 25 percent of the National Guard and Reserve, 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 resolving 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’s Social Security Number ended 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.