Pilot project on handling veterans’ employment complaints called inconclusive

A demonstration project designed to study which of two federal agencies is better suited to investigate military service members' complaints about their federal employment rights was inconclusive and merits further review, members of a Senate committee said Wednesday.

Congress created the demonstration project in 2004 after criticism from several Guard members and reservists that the Labor Department's Veterans Employment and Training Service took far too long to investigate alleged violations of the 1994 Uniformed Services Employment and Reemployment Rights Act at federal agencies. The law is designed to protect veterans from employment discrimination resulting from their service.

"As our troops are returning home from battle, many of them seek to return to the jobs they held prior to their military service," said Senate Veterans' Affairs Committee Chairman Daniel Akaka, D-Hawaii. "I must admit to being particularly upset at the volume of claims related to federal service."

Under the project, the Office of Special Counsel and VETS were assigned shared responsibility for receiving and investigating federal sector USERRA claims.

A Government Accountability Office report issued in July did not reach a conclusion about which is better suited to handle the cases. George Stalcup, director of strategic issues at GAO, testified Wednesday that data problems at both agencies affected GAO's ability to draw conclusions.

"Data limitations at both agencies … could adversely affect Congress's ability to assess how well federal USERRA claims are processed and whether changes are needed," Stalcup said.

Still, representatives from OSC and VETS pleaded their case for sole responsibility.

OSC Deputy Special Counsel James Byrne testified that giving OSC sole oversight would remove the burden from VETS, freeing it to focus on providing quality services to USERRA claimants in the private sector. Additionally, Byrne said, federal claims often have a mix of other potential violations that would fall under OSC's jurisdiction, such as prohibited personnel practices.

But Charles Ciccolella, assistant secretary of Labor for veterans' employment and training, testified that the GAO report clearly indicates the Labor Department resolves cases faster than OSC. Unlike OSC, which has only a headquarters and four field offices, VETS positions USERRA investigators in each state and territory, he said.

Lawmakers seemed intent on extending the current setup. "It is not clear to me that results of the demonstration project and the GAO report provide sufficient evidence to permit this committee to decide on the proper jurisdiction of these claims," Akaka said. "I believe that a good case can be made for retaining jurisdiction by both VETS and OSC."

If members choose to extend the demonstration project, then they should set clear goals, Stalcup said. "Legislation creating the current demonstration project was not specific in terms of the objectives," he said.

Mathew Tully, an Army Reserve officer and attorney who represents many federal reservists with USERRA claims, testified that should the demonstration project continue, GAO should also consider the number of service members who represent themselves or seek private counsel and go directly to the Merit Systems Protection Board.

During the demonstration project, Tully, Rinckey & Associates investigated and prosecuted before the MSPB a total of 1,802 cases, more than four times the combined number of cases that VETS and OSC handled over the same period, Tully said. Of the cases handled by the law firm, 73 percent of veterans were awarded the remedy they were seeking, he added.

But if the decision must be made between VETS and OSC, Tully said OSC is better positioned. "The Department of Labor has built a reputation over the last 13 years of poor investigative work [and] poor use of investigative tools," Tully said. "I have no doubts that if [OSC] is allowed to continue to investigate and prosecute USERRA claims that their reputation will grow."

Committee members and witnesses noted that better preventative measures also are needed. Byrne said OSC has an outreach program to educate managers on USERRA issues, but acknowledged that such programs are typically not implemented until after a violation is recognized.

Tully recommended giving OSC disciplinary authority so that federal supervisors are held personally accountable for USERRA violations. "Personal liability is the ultimate deterrent," he said, "and its implementation would have a profound effect on those unsavory individuals who might otherwise commit a USERRA violation."