[Senate Hearing 110-403]
[From the U.S. Government Printing Office]


                                                        S. Hrg. 110-403
 
  OVERSIGHT HEARING ON UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT 
                               RIGHTS ACT 

=======================================================================

                                HEARING

                               BEFORE THE

                     COMMITTEE ON VETERANS' AFFAIRS
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                            OCTOBER 31, 2007

                               __________

       Printed for the use of the Committee on Veterans' Affairs


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                     COMMITTEE ON VETERANS' AFFAIRS

                   Daniel K. Akaka, Hawaii, Chairman
John D. Rockefeller IV, West         Richard Burr, North Carolina, 
    Virginia                             Ranking Member
Patty Murray, Washington             Arlen Specter, Pennsylvania
Barack Obama, Illinois               Larry E. Craig, Idaho,
Bernard Sanders, (I) Vermont         Johnny Isakson, Georgia
Sherrod Brown, Ohio                  Lindsey O. Graham, South Carolina
Jim Webb, Virginia                   Kay Bailey Hutchison, Texas
Jon Tester, Montana                  John Ensign, Nevada
                    William E. Brew, Staff Director
                 Lupe Wissel, Republican Staff Director













































                            C O N T E N T S

                              ----------                              

                            October 31, 2007
                                SENATORS

                                                                   Page
Akaka, Hon. Daniel K., Chairman, U.S. Senator from Hawaii........     1
Tester, Hon. Jon, U.S. Senator from Montana......................     2
Murray, Hon. Patty, U.S. Senator from Washington.................     3
Burr, Hon. Richard, Ranking Member, U.S. Senator from North 
  Carolina.......................................................     4
    Prepared statement...........................................     4

                               WITNESSES

Stalcup, George H., Director, Strategic Issues, U.S. Government 
  Accountability Office..........................................     5
    Prepared statement...........................................     8
    Responses to written questions from:
      Hon. Daniel K. Akaka.......................................    20
      Hon. John Tester...........................................    21
Ciccolella, Charles C., Assistant Secretary for Veterans' 
  Employment and Training, U.S. Training, U.S. Department of 
  Labor..........................................................    26
    Prepared statement...........................................    28
    Responses to written questions from Hon. Daniel K. Akaka.....    33
Byrne, Jim, Deputy Special Counsel, U.S. Office of Special 
  Counsel; accompanied by Patrick Boulay, Chief, USERRA Unit, 
  U.S. Office of Special Counsel.................................    35
    Prepared statement...........................................    36
    Responses to written questions from Hon. Daniel K. Akaka.....    37
      Appendix A.................................................    42
Boulay, Patrick, Chief, USERRA Unit, U.S. Office of Special 
  Counsel........................................................    47
Tully, Matthew B., Tully, Rinckey and Associates, PLLC...........    53
    Prepared statement...........................................    55

                                APPENDIX

Pope, Philip, Deputy Executive Director, National Committee for 
  Employer Support of the Guard and Reserve; prepared statement..    73


  OVERSIGHT HEARING ON UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT 
                               RIGHTS ACT

                              ----------                              


                      WEDNESDAY, OCTOBER 31, 2007

                               U.S. Senate,
                    Committee on Veterans' Affairs,
                                                   Washington, D.C.
    The Committee met, pursuant to notice, at 9:30 a.m., in 
room 562, Dirksen Senate OfficeBuilding, Hon. Daniel K. Akaka, 
Chairman of the Committee, presiding.
    Present: Senators Akaka, Murray, Tester, and Burr.

   OPENING STATEMENT OF HON. DANIEL K. AKAKA, CHAIRMAN, U.S. 
                      SENATOR FROM HAWAII

    Chairman Akaka. This hearing will come to order. I want to 
say aloha and welcome to all of youto the Committee's oversight 
hearing on the Uniformed Services Employment and Reemployment 
RightsAct. We are going to call it from now on USERRA.
    As our troops are returning home from battle, many of them 
seek to return to the jobs thatthey held prior to their 
military service, particularly those serving in the Guard and 
Reserveunits. USERRA provides these servicemembers with certain 
protections. USERRA also sets outcertain new responsibilities 
for employers, including to reemploy returning veterans in 
theirprevious jobs. This protection applies to virtually all 
jobs, including those in the Federalsector.
    I must admit to being particularly upset at the volume of 
USERRA claims related to Federalservice. It is simply wrong 
that individuals who were sent to war by their government 
should, upontheir return, be put in the position of having to 
do battle with that same government in order toregain their 
jobs and benefits.
    Several years ago, Congress created a demonstration 
projects in the Veterans' BenefitsImprovement Act of 2004, the 
Public Law 108-454 under which the Office of the Special 
Counsel,OSC, rather than the Department of Labor's Veterans' 
Employment and Training Service, VETS, wasgiven the authority 
to receive and investigate certain Federal sector USERRA 
claims. GAO was toreport to the Congress on the operation and 
results of the demonstration project together with anassessment 
of the advisability of transferring the responsibility for all 
Federal sector USERRAclaims from VETS to OSC.
    The GAO report was received on July 20, 2007, and I will 
ask that it be included in itsentirety in the proceedings of 
this hearing.
    Chairman Akaka. Unfortunately, it is not clear to me that 
results of the demonstration projectand the GAO report provide 
sufficient evidence to permit this Committee to decide on the 
properjurisdiction of these claims. I believe that a good case 
can be made for retaining jurisdiction byboth VETS and OSC. 
Thus, this morning, we will be hearing from each of the parties 
who will havethe opportunity to make their case to the 
Committee as to which organization should have 
theresponsibility.
    We will also be hearing testimony from a firsthand 
perspective from Mr. Matthew Tully, whowill share with the 
Committee his experiences and his expertise.
    We will need to move through this hearing in a timely 
fashion so I ask that our witnessesadhere to the five-minute 
rules for your oral presentation. Your full statements, of 
course, willbe made a part of the Committee's record.
    Again, I want to say welcome and I look forward to hearing 
from each of you this morning.
    For the information of others present today, let me explain 
that the Filipino veterans andfamily members who are here today 
are expressing their support for Senate action on an 
omnibusbenefits bill reported by our Committee that contains 
provisions which would recognize the serviceof Filipino 
veterans during World War II as service in the U.S. Armed 
Forces. As I have explainedto those supporting this bill, I am 
working hard to get floor action, but the Senate calendar 
iscrowded and since I am not able to predict how much time 
there will be needed to debate the bill,it has been difficult 
to have the bill scheduled and so I am still trying to deal 
with thatagreement on time for the floor. I am continuing to 
work on bringing the bill before the fullSenate.
    I would like at this time to call on Senator Tester for any 
opening remarks that the Senatormay have.

                 STATEMENT OF HON. JON TESTER, 
                   U.S. SENATOR FROM MONTANA

    Senator Tester. Well, thank you, Mr. Chairman. I am sorry I 
didn't have more time to get here to hear your remarks so I 
will keep my opening statement very, very short.
    This is a different kind of war than what we have had in 
previous times, where a large number of Guard and Reservists 
are being called onto the battlefield. When they come back, 
they need to have the labor opportunities there that they had 
when they left.
    I come from a small town in north central Montana and I am 
still a bit of an outsider when I come here, but one of the 
things that always amazes me about Washington, D.C. is the size 
of the bureaucracy. I mean, it is huge. If we are not ensuring 
that the veterans who come back have the job opportunities and 
the agencies that serve them are not living by the law, they 
don't have the opportunities under the law, it is a serious 
misstep by the Federal Government.
    I will just tell you that if we don't know who is doing or 
who is supposed to be doing this job, I would hope that, Mr. 
Chairman, we don't create another bureaucracy to do it. I hope 
we hold the people accountable who are supposed to do the job 
to do the job, because that is really what needs to happen. I 
think this is a very, very serious issue. I think we are 
holding this hearing, because quite honestly, if you put 
yourselves in the shoes of the Guard or the Reservists, or 
active military, as far as that goes, that get pulled into the 
field of battle, away from their family, in a foreign country, 
under incredible pressures, under incredible duress, and then 
to have them come home and they aren't given the opportunities 
that they were promised when they left is unforgivable.
    So with that, Mr. Chairman, I look forward to this hearing 
and I appreciate you calling it and I look forward to the 
testimony.
    Chairman Akaka. Thank you very much, Senator Tester.
    Senator Murray?

                STATEMENT OF HON. PATTY MURRAY, 
                  U.S. SENATOR FROM WASHINGTON

    Senator Murray. Well, Mr. Chairman, thank you very much, 
and I know that Ranking Member Burr is right behind me here, as 
well, but I want to thank you for calling this important 
hearing on the employment rights of our Nation's veterans.
    We all know that our brave men and women are called upon to 
serve our country. They put their lives on the line for us and 
our safety, and when they return home, it is our responsibility 
to fulfill all of our promises to them. So one of them should 
be that they shouldn't have to worry about whether or not they 
are going to lose their jobs if they leave to work and serve us 
overseas.
    Mr. Chairman, this hearing is really going to ask us a 
pivotal question. Are we adequately protecting the employment 
rights of today's servicemembers and veterans?
    Despite the laws that we have put in place to protect them, 
I still hear from my constituents who have run into problems at 
work because of their military obligations. We have to do 
everything we can in our power to ensure that our veterans, our 
Guard and Reserve members, and their families aren't penalized 
by their service to our country. These citizen-soldiers make 
the all-volunteer military possible and we have got to make 
certain that we aren't driving people out of the military 
because they are concerned about protecting their jobs.
    Mr. Chairman, I have to leave this hearing, unfortunately, 
early, but I am looking forward to hearing the witnesses today 
and reviewing their testimony about what we can do to 
strengthen the protection of veteran employment rights.
    I just want to mention two main concerns. The first I have 
is about a test program that is looking at which Federal agency 
should be responsible for our Federal employees' claims under 
USERRA. Over the last 2 years, the Labor Department's Veterans' 
Employment and Training Service in the Office of Special 
Counsel participated in that demonstration project which 
applies two different approaches to review the Federal claims 
under the law, and as we move forward on that issue, I want to 
make sure that we avoid unnecessary confusion for veterans who 
are seeking claims under that system. I have some concern about 
splitting the responsibility between two agencies that might do 
that and might lead to some of our veterans asking why some of 
them go through a different process than others. I think that 
is the wrong message to send to our veterans and I look forward 
to working with my colleagues to find the right approach to 
that.
    The second concern I wanted to mention really quickly is 
complaints by Guard and Reserve members and how they are being 
handled. This year, I have met with many veterans, especially 
Guard and Reserve, who have told me that they have had 
difficulty getting employment assistance once they are 
demobilized and others who have said that they had no idea that 
employment services were available and weren't aware that 
USERRA protected their rights to get their old jobs back.
    So given those concerns, I am looking forward to hearing 
the testimony this morning about how the Labor Department has 
worked with the Office of Special Counsel to ensure that our 
servicemembers receive the attention they deserve, and for Mr. 
Byrne, I hope to hear how the OSC can make a connection with 
our veterans and how we can prevent any of this confusion for 
our veterans who are seeking claims.
    So thank you very much, Mr. Chairman. I look forward to the 
testimony this morning.
    Chairman Akaka. Thank you very much, Senator Murray.
    Senator Burr?

        STATEMENT OF HON. RICHARD BURR, RANKING MEMBER, 
                U.S. SENATOR FROM NORTH CAROLINA

    Senator Burr. Mr. Chairman, thank you. I apologize for my 
tardiness to you and to our witnesses today. I would ask 
unanimous consent that my opening statement be included in the 
record.
    Chairman Akaka. Without objection.
    Senator Burr. I will forego reading it, even though it is 
great practice for me. I welcome all of our witnesses today and 
I thank you for holding this hearing, Mr. Chairman.
    [The prepared statement of Senator Burr follows:]
               Prepared Statement of Hon. Richard Burr, 
                    U.S. Senator from North Carolina
    Thank you, Mr. Chairman, and all of our panelists for being here 
today. We are here to discuss a very important topic: whether we as a 
Nation are doing enough to protect the civilian careers of those who 
serve in our Armed Forces, particularly members of the Guard and 
Reserve.
    It is incumbent on all of us to recognize and honor the tremendous 
sacrifices that these servicemembers and their families continue to 
make and help ease their transition as they move forward. More than 60 
years ago Congress recognized that those who serve our country in a 
time of need should be entitled to resume their civilian jobs when they 
return home. After Congress passed the first law providing reemployment 
rights to servicemembers in 1940, President Roosevelt said these rights 
were part of ``the special benefits which are due to the members of our 
armed forces--for they `have been compelled to make greater economic 
sacrifice and every other kind of sacrifice than the rest of us.' ''.
    As we all know, the sacrifices by this generation of servicemembers 
are just as profound. More than one and a half million Americans have 
been deployed to fight in the War on Terror. In North Carolina alone, 
nearly 1,600 members of the Guard and Reserves are serving today. Many 
left behind not only family and friends, but valued civilian careers. 
For them, the modern reemployment law, the Uniformed Services 
Employment and Reemployment Rights Act, or USERRA, requires that they 
be given their jobs back when they return home, with all the benefits 
and seniority that would have accumulated during their absence.
    Many employers are not only complying with this law but are going 
above and beyond what's required in taking care of their Guard and 
Reserve employees. In fact, last year a company in my home state--
Skyline Membership Corporation--joined a distinguished list of 
employers that have received the Secretary of Defense Employer Support 
Freedom Award. This award is the highest recognition that is given to 
an employer who demonstrates extraordinary support of their employees 
who serve in the Guard and Reserves. I am proud of Skyline's 
leadership, and I encourage more employers to follow their lead.
    While every employer should strive to meet or exceed the 
requirements of USERRA, Congress has stressed that ``the Federal 
Government should be a model employer'' when it comes to complying with 
this law. In my view, this means the Federal Government should make 
sure that not a single returning servicemember is denied re-instatement 
to a Federal job. But unfortunately, we aren't completely there yet.
    For those who encounter problems when they attempt to resume their 
Federal jobs, Congress authorized a demonstration project to determine 
whether they would be better served by having their complaints 
investigated by the Office of Special Counsel rather than the 
Department of Labor. Having looked over today's testimony on the 
results of that demonstration project, I would make this general 
observation: Many of the recommendations offered involve process--such 
as improving data reliability and ensuring internal reviews. However, 
the truly critical issue--and the one I am most interested in hearing 
about today--is not about the process but about outcomes.
    I want to know whether we are preventing USERRA violations from 
occurring in the first place. When problems arise, are servicemembers 
getting timely resolutions to their concerns? And are they satisfied 
with the service they receive? Whether it is done by the Office of 
Special Counsel or the Department of Labor, it must be our goal to make 
sure that the answer to these questions is always ``yes.'' We owe 
nothing less to those who have served and sacrificed so much for our 
Nation. And I hope today we will come closer to determining how best to 
structure this system to achieve that result.
    As for the second focus of the hearing today, the Dole-Shalala 
Commission recently recommended that Congress amend the Family and 
Medical Leave Act to provide up to 6 months of leave for family members 
caring for seriously wounded servicemembers. As we consider this 
legislative change, I hope employers across the Nation will not wait, 
but will act now to provide whatever accommodations they can to protect 
the jobs of these family members. I hope employers will show their 
gratitude for the sacrifices of our wounded servicemembers and the 
sacrifices of their family members who are a critical part of their 
recoveries.
    Mr. Chairman, I take very seriously the Commission's recommendation 
that we change the law toensure that the jobs of these family members 
are protected, and I look forward to hearing from our witnesses about 
how we can best go about implementing that recommendation. Given 
thetremendous sacrifices of these family members, protecting their 
livelihoods is simply the rightthing to do.

    Thank you, Mr. Chairman, I yield the floor.

    Chairman Akaka. I am pleased to introduce our first panel 
this morning. Mr. George Stalcup is the Director of Strategic 
Issues for the Government Accountability Office.
    Mr. Stalcup, I want to also take a moment to thank you for 
your cooperation with the Committee and the Committee staff 
during preparation of this hearing. I know that it was set up 
on a relatively short notice and I do appreciate your ``can 
do'' approach and also the patience of our Committee Members, 
as well.
    It is good to have you, and I would now ask you to proceed 
with your opening statement.

  STATEMENT OF GEORGE H. STALCUP, DIRECTOR, STRATEGIC ISSUES, 
             U.S. GOVERNMENT ACCOUNTABILITY OFFICE

    Mr. Stalcup. Thank you, Mr. Chairman. Chairman Akaka, 
Ranking Member Burr, Senator Murray, Senator Tester, I am 
pleased to be here today to discuss our work looking at the 
demonstration project that has been described by the Chairman.
    Today, I want to make three points. I want to talk about 
the claims processing under the demonstration project. I want 
to talk about the findings of our work, the recommendations 
that we have made, and what actions have been taken against 
those recommendations today. And I want to talk about some 
factors that the Congress might consider related to extending 
or not extending the demonstration project.
    Under the demonstration, DOL continued to process USERRA 
claims as it had prior to the demonstration, that is, using its 
network nationwide and over 100 investigators. To investigate 
its share of the USERRA claims, OSC instituted a centralized 
approach within its Washington, D.C. headquarters with about a 
half-a-dozen investigators and attorneys. OSC's other role 
under USERRA, is handling claims referred to it at the request 
of claimants after an initial investigation by Labor did not 
resolve the claim, remained unchanged during the demonstration 
project.
    To assess the reliability of data, we reviewed a random 
sample of claims processed by both entities. Our review of the 
sample showed reliability problems with data at VETS. This is 
the same data that they use to report to the Congress. For the 
period of our review, the VETS database showed 202 claims being 
opened. We determined, however, that this number included 
duplicate, reopened, and transferred claims; and, in fact, only 
166 unique claims had actually been investigated.
    We also found errors in the data for both case closure 
dates and for codes used to indicate the outcomes of its 
investigations. Using corrected closure dates from our review 
of the sample of cases, we estimated that VETS average 
processing time for investigations opened and closed during our 
review ranged from 53 to 86 days.
    During the period of our review, OSC processed 269 claims 
in an average of 115 days. In terms of data, we found the OSC's 
case closed dates to be sufficiently reliable, but not the code 
used to indicate outcomes of claim investigations.
    Our review of the sample case files at DOL also showed the 
claimants were not consistently notified of their right to have 
their claims referred to OSC or to bring their claims directly 
to MSPB. VETS failed to provide any written notice to half of 
the claimants with unresolved cases, notified others of only 
some options, and inaccurately advised others. Two contributing 
factors may have been the lack of clear guidance in the VETS 
USERRA users manual as well as a lack of an internal process 
for reviewing investigator determinations before claimants were 
notified.
    During our review and citing our preliminary findings, DOL 
officials required each region to revise its guidance 
concerning the notification of rights, and then since our 
review, DOL has taken additional actions. They have provided 
more guidance to the field in terms of case closing procedures 
to help ensure that claimants are clearly apprised of their 
rights. They have drafted policy changes for the operations 
manual that are due out in January. And they have begun to 
conduct mandatory training on these revised requirements.
    In addition, DOL officials have indicated to us that 
beginning in January, all claim determinations will be reviewed 
before closure letters are sent to claimants. These are very 
positive steps, but it is important that DOL follow through on 
these efforts.
    If Congress decides to extend the demonstration project, it 
will be important that clear objectives be set. There were no 
such objectives in the legislation creating the current 
demonstration project. For example, objectives could focus on 
several areas that could help measure the quality of service to 
claimants. Clearly articulated goals would also facilitate any 
follow-on review to determine the extent to which those 
objectives are achieved. In this regard, our earlier work could 
provide a valuable baseline.
    Congress may also want to consider some potential pros and 
cons of options if the demonstration project is not extended. 
For example, Congress could choose to return to the 
predemonstration set-up where Labor investigated all USERRA 
claims. In this regard, Labor has an infrastructure in place. 
Further, all USERRA claims, both Federal and non-Federal, would 
then be processed by a single agency. At the same time, 
however, DOL has only recently taken or is still in process of 
taking actions to correct the deficiencies we found and the 
effectiveness of these actions has not yet been determined.
    Congress could also decide to provide OSC the 
responsibility and authority to handle all USERRA claims, 
Federal claims. This would eliminate the lengthy two-phase 
process currently carried out by DOL on all USERRA cases when 
they are referred to OSC, but this may also require OSC to 
expand its overall infrastructure, hire additional staff, and 
make other operational changes.
    As you stated, Mr. Chairman, most importantly, with the 
Nation's attention so focused on those who serve our country, 
it is vital that their employment and reemployment rights are 
protected.
    This concludes my prepared remarks and I would be happy to 
answer any questions.
    [The prepared statement of Mr. Stalcup follows:]
 Prepared Statement of George H. Stalcup, Director, Strategic Issues, 
                 U.S. Government Accountability Office

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                                 ______
                                 
  Responses to Post-Hearing Questions from the Committee to George H. 
 Stalcup, Director, Strategic Issues, Government Accountability Office
    Dear Mr. Chairman:

    On October 31, 2007, I testified before your committee at its 
hearing on a Federal sector demonstration project on servicemembers' 
employment rights claims under the Uniformed Services Employment and 
Reemployment Act of 1994 (USERRA).\1\ The demonstration project 
established by the Veterans Benefits Improvement Act of 2004 was set to 
conclude on September 30, 2007, but through a series of extensions 
continued through December 31, 2007.\2\ Following the hearing, we met 
with key members of your staff to provide our perspectives on pending 
legislation to amend USERRA.\3\ As discussed with your staff, the 
following responses to post-hearing questions, which GAO received on 
May 8, 2008, reflect the current situation. Because the demonstration 
project ended on December 31, 2007, two questions are no longer 
relevant.
---------------------------------------------------------------------------
    \1\ GAO, Military Personnel: Considerations Related to Extending 
Demonstration Project on Servicemembers' Employment Rights Claims, GAO-
08-229T (Washington, D.C.: Oct. 31, 2007).
    \2\ See, section 204 of Pub. L. No. 108-454, 118 Stat. 3598, 3606-
3608, 38 U.S.C. Sec. 4301 note, Pub. L. No. 110-92, sections 106(3) and 
130 (Sept. 29, 2007); Pub. L. No. 110-116, Division B, section 101 
(Nov. 13, 2007); Pub. L. No. 110-137 (Dec. 14, 2007), and Pub. L. No. 
110-149, section 1 (Dec. 21, 2007).
    \3\ On December 13, 2007, S. 2471, ``USERRA Enforcement Improvement 
Act of 2007'' was introduced in the Senate.
---------------------------------------------------------------------------
                                 ______
                                 
  Response to Written Questions Submitted by Hon. Daniel K. Akaka to 
          George H. Stalcup, Government Accountability Office
    Question 1. You note in your testimony that DOL and OSC use two 
different models to investigate Federal USERRA claims. Were you able to 
determine whether these two different models produce different results 
in terms of the accuracy of the findings?
    Response. No. The objectives of our July report on the Federal 
sector demonstration project were to (1) describe DOL's and OSC's 
policies and procedures for processing Federal employees' USERRA claims 
under the demonstration project; (2) identify the number of Federal 
employees' USERRA claims that DOL and OSC received during the 
demonstration project and the outcomes of these claims, including 
average processing times; and (3) identify changes to Federal 
employees' USERRA claims' processing since the demonstration project 
began.\4\ An independent assessment of the accuracy of agency findings 
on such cases is not typically our role.
---------------------------------------------------------------------------
    \4\ GAO, Military Personnel: Improved Quality Controls Needed over 
Servicemembers' Employment Rights Claims at DOL, GAO-07-907 
(Washington, D.C.: July 20, 2007).

    Question 2. I understand that you found the reliability of data at 
both DOL and OSC was in question and that this could affect Congress' 
ability to assess how well Federal USERRA claims are processed and what 
changes are needed. I understand that at DOL you found an overstatement 
in the number of claims and problems with case closure. Please expand 
briefly on the problems with the data at OSC.
    Response. At OSC, we found that the corrective action data element, 
which OSC uses to describe the outcomes of USERRA claims, was not 
sufficiently reliable for reporting specific outcomes of claims. In an 
earlier report,\5\ we assessed the reliability of selected data 
elements in OSC's case tracking system for USERRA claims by comparing 
them to the source case files. Specifically, we compared electronic 
data for 11 selected data elements (out of 90 unique data elements) in 
OSC's database, OSC 2000, to the source case files for 158 randomly 
selected closed cases received from October 1, 2004 through March 31, 
2006. In that report, we assessed reliability by the amount of 
agreement between the data in OSC 2000 and the source case files. For 
the corrective action data element, we are 95 percent confident that as 
many as 24 percent of the outcomes would not match between the case 
tracking system and the source case files.
---------------------------------------------------------------------------
    \5\ GAO, Office of Special Counsel Needs to Follow Structured Life 
Cycle Management Practices for Its Case Tracking System, GAO-07-318R 
(Washington, D.C.: Feb. 16, 2007).

    Question 3. I thank you for articulating so well the potential 
benefits and limitations of extending the pilot project. Do you believe 
that an additional review could evaluate the effectiveness of the 
actions DOL is taking to correct the deficiencies you identified in the 
July report?
    Response. As part of our on-going work, we follow up with audited 
entities to determine the extent to which our recommendations have been 
implemented. In my written statement, I reported on the status of DOL's 
efforts to correct the deficiencies we identified in our July report. 
We will continue to follow-up on these efforts. In addition, as we 
discussed with your staff after the hearing, we could be asked to 
review DOL's efforts after DOL has been afforded sufficient time to 
address the deficiencies we identified and a sufficient quantity of 
data has accrued upon which to base an analysis. We are happy to work 
with your staff in determining the appropriate amount of time for DOL 
to address deficiencies and accrue data.
    Question 4. You state in your testimony that ``given adequate time 
and resources, an evaluation of the extended demonstration project 
could be designed and tailored to provide information to inform 
Congressional decisionmaking.'' Would you be willing to work with the 
Committee to design this evaluation?
    Response. As stated in the introduction above, this question is no 
longer relevant.
    Question 5. In your opinion, do you believe there is anything to be 
gained from extending the demonstration project or do you think we have 
learned all that there is or at least all that can be learned about the 
investigation and resolution process in order to make a decision on 
jurisdiction?
    Response. As stated in the introduction above, this question is no 
longer relevant.
                                 ______
                                 
Response to Written Question Submitted by Hon. Jon Tester to George H. 
               Stalcup, Government Accountability Office
    Question. You indicated in your statement that the data GAO 
received was ``poor.'' Can you elaborate on that statement? Why was it 
poor? What could be done to ensure that future data is of a higher 
quality?
    Response. Describing the quality of the data ``poor'' refers to our 
findings that data for reporting outcomes were not sufficiently 
reliable at both DOL and OSC and that data on the number of claims and 
the time to investigate claims was not sufficiently reliable at DOL.
    As we state in our testimony, at OSC, we found that the corrective 
action data element, which OSC uses to describe the outcomes of USERRA 
claims, was not sufficiently reliable for reporting specific outcomes 
of claims. At DOL, we found that the closed code, which DOL's Veterans' 
Employment Training Service (VETS) uses to describe the outcomes of 
USERRA claims, was not sufficiently reliable for reporting specific 
outcomes of claims. At DOL, concerning the number of Federal employees' 
USERRA claims received for investigation, we found that for February 8, 
2005, through September 30, 2006, VETS received a total of 166 unique 
claims, although 202 claims were recorded opened in VETS's database. 
Duplicate, reopened, and transferred claims accounted for most of this 
difference. Additionally, during our review of a random sample of 
VETS's case files to assess the reliability of VETS's data, we found 
the dates recorded for case closure in VETS's database were not 
reliable; that is, VETS's database did not reflect the dates on the 
closure letters, which VETS uses to indicate completion of the 
investigation, in over 40 percent of sampled claims. VETS uses the date 
recorded for case closure in its database to report to Congress on the 
number and percentage of claims it closes within 90, 120, and 365 days.
    To ensure that accurate information on USERRA claims' processing is 
available to DOL and to Congress, we recommended that VETS establish a 
plan of intended actions with target dates for implementing internal 
controls to ensure that VETS's database accurately reflects: the number 
of unique USERRA claims filed annually against Federal executive branch 
agencies; the dates those claims were closed; and the outcomes of those 
claims. We also recommended that VETS incorporate into its USERRA 
Operations Manual previously issued guidance on the appropriate date to 
use for case closure in VETS's USERRA database.
    As discussed at the hearing, at a time when the Nation's attention 
is focused on those who serve our country, it is important that 
employment and reemployment rights are protected for Federal 
servicemembers who leave their employment to perform military or other 
uniformed service. We remain available to discuss the above questions 
and related issues with your staff. For additional information, please 
contact me.

    Chairman Akaka. Thank you very much, and I want to thank 
you for articulating so well the potential benefits and 
limitations. Do you believe that additional GAO review could 
evaluate the effectiveness of the actions DOL is taking to 
correct the deficiencies?
    Mr. Stalcup. Yes, I do.
    Chairman Akaka. You stated in your testimony given adequate 
time and resources, an evaluation of the expanded demonstration 
project could be designed and tailored to provide information 
to respond to Congressional decisionmaking. Would you be 
willing to work with the Committee to design this evaluation?
    Mr. Stalcup. Absolutely, Mr. Chairman. We believe there are 
some proxies out there that could be used to provide some 
measurement of what is being done and we would be more than 
happy to work with your staff, your counterparts in the House, 
and figure out what a meaningful set of those proxies would be 
in making those assessments.
    Chairman Akaka. You note in your testimony that DOL and OSC 
use two different models to investigate Federal USERRA claims. 
Were you able to determine whether these two different models 
produced different results in terms of the accuracy of the 
findings?
    Mr. Stalcup. Well, the fact is, Mr. Chairman, we did not 
look at or try to assess the determinations made on these 
cases. It is not GAO's role to come in and actually second-
guess what agencies have decided in terms of legal 
determinations. What we have done obviously is to look at the 
quality of the data and there are other things out there that 
we could take an additional look at, and I think with those 
things collectively be helpful to those that are making the 
decision in Congress as to which way to go.
    Chairman Akaka. I understand that you found the reliability 
of data at both DOL and OSC was in question and that this could 
affect Congress's ability to assess how well Federal USERRA 
claims are processed and what changes are needed. I understand 
that at DOL, you found an old statement in the number of claims 
and problems with case closure. Please expand briefly on the 
problems with the data at OSC.
    Mr. Stalcup. Sure. At OSC, the problems with data 
manifested themselves in a couple of areas. First of all, in 
the database the DOL uses to report information to the 
Congress, the number of cases in there reflected 202 cases. In 
looking at those cases, we determined that there were 
duplications, there were closed cases that had been reopened, 
and there were cases that had been transferred that should not 
have been included in that total. In fact, the total was 166.
    We also found problems in closed dates in the system where 
we tried to match the date on the letter that actually went to 
the claimant and the dates in the systems. In 40 percent of the 
cases they did not agree, and for those that did not agree, the 
difference was typically about 60 days.
    Chairman Akaka. Thank you very much, Mr. Stalcup.
    Now I would like to turn it over to the Ranking Member, 
Senator Burr, for his questions.
    Senator Burr. Thank you, Mr. Chairman.
    You noted in your testimony if the demonstration project 
were extended, Congress should seek clear objectives. What are 
those clear objectives?
    Mr. Stalcup. Well, we have talked about that and we have a 
set of eight or ten factors that we think could all lend 
themselves collectively to being framed in terms of objectives 
and that would provide a basis for us or someone to come in at 
a later time and look at those and make an assessment, 
including whether or not the data problems, which are very 
problematic, I think cleaning up of those data objectives would 
greatly facilitate such an assessment. But we would be glad to 
work with your staff, your counterparts in the House to come up 
with a meaningful set of those objectives that could be used 
and relied on.
    Senator Burr. Mr. Stalcup, you said the current 
demonstration project is not specific in terms of the 
objectives to be achieved. Share with me, if you will, how does 
GAO go in and assess a demonstration program that didn't have 
clear objectives.
    Mr. Stalcup. Well, that is the point I think we tried to 
make in our statement, that without those clear objectives, it 
was difficult. If there is nothing to measure against, then it 
puts us in a tough situation.
    Senator Burr. But I am trying to get you a little further 
to share with us, what is it you were looking for? What is it 
that you used without having some end point that the 
demonstration project was trying to prove?
    Mr. Stalcup. Well, we met with Members of this Committee's 
staff, and Members on the House staff from the get-go. Some of 
the things we found early on, together with those staff 
Members, is that the processes of the two places were, in fact, 
different. I think there was some thinking when the 
demonstration project was laid out that we would end up at a 
point where we would have two comparable sets of data--two 
comparable sets of operations that we could compare. 
Unfortunately, it became evident early on that because of the 
differences in those operations, in addition to the data 
problems, that we really had an ``apples and oranges'' kind of 
thing and so it became difficult to make those comparisons.
    So what we did was we focused on the data quality issues. 
We focused on the notification of claimants issues in agreement 
with Members of your staff, and that is what we have reported 
on.
    Senator Burr. How does one assess where we go to from here? 
I mean, clearly, I have looked at your report, heard your 
testimony. The volume of cases taken matched with the number of 
people working on it and the average length of days, if I had 
no involvement in it, I would look at it and say, this is 
ludicrous. I am not sure I would be specific in any one area. 
It doesn't work. It is not working. What do we need to do?
    Mr. Stalcup. Well, we need to clean up the data problems 
and that is first and foremost. And we believe, based on what 
we have been told by DOL, that they are well on their way to 
doing that. But, without good data not only can it become 
difficult for us to perform that assessment, it makes it 
difficult for the agency to manage their case files, and to 
know where they stand, and to report to Congress.
    Senator Burr. Do you think it would help at all if veterans 
were given options earlier--requesting referral to Office of 
Special Counsel at the beginning or sooner in the process?
    Mr. Stalcup. That probably is a question that may be better 
answered by those two organizations: OSC and the Department of 
Labor. I think there are some factors you need to think about. 
If you start offering options to veterans as to where they are 
going to go at what point in time, that could create a scenario 
of some unintended consequences, such as them shopping for the 
right result for them, maybe even the agencies being prone to 
going out and advertising what they can do for the veterans. So 
I think it is something to consider. I think we need to be 
cautious.
    Senator Burr. Well, I hear what you are saying. I sit here 
frustrated a little bit, because we will hear from them and we 
will hear from private attorneys, as well, that are an option 
today for individuals to seek. I sit here with a firm belief 
they shouldn't have to use that option, that we should have a 
system that works. So it is somewhat frustrating to this 
Member, because I think what you have designed for me is a 
cultural problem.
    I want to be fair to the Department of Labor, and I will 
be. They are making progress, and I am hopeful that they are 
because I think this can be done a lot more efficiently and a 
lot more effectively than clearly what I have seen, but more 
importantly, it displays to me just how bad it is from the 
standpoint of GAO is usually very specific in what they have 
gone in and assessed. And though I think what you did was an 
excellent review, I am used to reading through a GAO report and 
having a clear indication as to what we should be looking for. 
Clearly you couldn't come to that conclusion. And the data is 
so confusing that until you sort out the data, it is hard to 
figure out what the next step is. Am I accurate in that?
    Mr. Stalcup. You are, Senator Burr, and I understand where 
you are coming from on that. It was an issue that we dealt with 
throughout, not only amongst ourselves, but with the staff of 
the Committee in sorting through those things. Yes.
    Senator Burr. I thank you very much. I thank you, Mr. 
Chairman.
    Chairman Akaka. Thank you very much, Senator Burr.
    Before I call on Senator Tester, in hearing Senator Burr's 
questions, you made a statement here that for GAO in January, 
all claims will be reviewed. You also mentioned that there were 
202 claims and that OSC had 269 claims. My brief question is, 
in January, you are going to review all claims. What will 
happen for you to do that?
    Mr. Stalcup. Thank you, Mr. Chairman. The point that we 
make in the statement is that beginning in January, according 
to the Department of Labor officials, they will institute an 
internal review process that will look at all investigation 
outcomes before those outcomes are sent to the claimant in a 
letter. This is one area where we were able to look at both 
agencies and kind-of do a comparison. The Office of Special 
Counsel had a very rigorous review of all claim outcomes before 
the letters were sent. The Department of Labor agreed with us 
in terms of that finding and have moved to create an internal 
review process that they tell us will begin in January.
    Chairman Akaka. Senator Tester?
    Senator Tester. Thank you, Mr. Chairman.
    Were you able to tell to what extent the managers in the 
Federal Government were trained to comply with USERRA?
    Mr. Stalcup. Managers in both organizations receive some 
training. I do believe the Department of Labor clearly, after 
some of the points we made, became aware of some of those 
points. Additional training has been designed and was initiated 
in August--two months ago.
    Senator Tester. What about the agencies that were having 
the problem that the DOL and the OSC were--in other words, what 
I am talking about is an agency like the Department of 
Agriculture, Department of Commerce, those kind of agencies. 
Were you able to tell if there were folks within the agencies 
that were trained?
    Mr. Stalcup. That was not part of our review, Senator.
    Senator Tester. You talked about the data a lot with 
Senator Burr and that it was inadequate or just flat bad. Why? 
What is the reason for that? Who is the culprit here? Was it 
inadequate knowledge of what should be gathered or was it bad 
bookkeeping? Why is the data so bad?
    Mr. Stalcup. A couple things come into play. Probably first 
and foremost is the fact that the guidance in the USERRA manual 
in terms of how to process, when to notify, et cetera, was not 
very clear. They have made changes. There are updates to that 
policy manual in process and that revised policy manual is due 
out also in January.
    Senator Tester. Who is responsible for the USERRA manual?
    Mr. Stalcup. This manual that I am referring to now is the 
one at Department of Labor.
    Senator Tester. OK. Have you done or did you know of any--
investigation is a poor word, but has anybody taken a look at 
whether the private sector has as many problems as the public 
sector as far as granting the rights of returning veterans?
    Mr. Stalcup. Haven't done that work, sir.
    Senator Tester. And are you aware of any work that has been 
done in that realm?
    Mr. Stalcup. No. But I can probe a little bit when I go 
back and if there is, I will let you know.
    Senator Tester. It would be interesting to know, just to 
see if it is very similar to what you found out----
    Mr. Stalcup. Absolutely.
    Senator Tester [continuing]. As far as what was going on 
there.
    Thank you for being here. I appreciate your testimony. I 
look forward to the second and third panel. Thank you.
    Chairman Akaka. Thank you very much, Senator Tester.
    I want to thank you very much, Mr. Stalcup. This hearing, 
of course, is very focused and I want to thank you for helping 
us as much as you have in trying to address this. Again, I want 
to say thank you for your testimony, your presence, and all 
your help.
    Mr. Stalcup. I appreciate the opportunity. Thank you very 
much, Mr. Chairman and Members.
    Chairman Akaka. Thank you.
    And now I would like to introduce our second panel. First, 
we will hear Charles Ciccolella, the Assistant Secretary for 
Veterans' Employment and Training, U.S. Department of Labor. 
Second, we will have the Honorable Jim Byrne, Deputy Special 
Counsel, U.S. Office of Special Counsel. Mr. Byrne is 
accompanied by Patrick Boulay, Chief of the USERRA Unit.
    They are here today to share their thoughts and 
recommendations with the Committee as well as to make their 
cases as to why they are the appropriate agency to have 
jurisdiction of the Federal sector claims.
    Now we will hear first from Hon. Charles Ciccolella.

  STATEMENT OF CHARLES C. CICCOLELLA, ASSISTANT SECRETARY FOR 
  VETERANS' EMPLOYMENT AND TRAINING, U.S. DEPARTMENT OF LABOR

    Mr. Ciccolella. Thank you, Mr. Chairman. Good morning, 
Senator Burr, Senator Tester. Thank you very much for the 
opportunity to testify on behalf of the Department of Labor 
concerning USERRA, the Uniformed Services Employment and 
Reemployment Rights Act.
    As the Committee knows, the USERRA law protects the job 
rights of veterans and Members of the Armed Forces, including 
the National Guard and Reserve. The law also prohibits 
discrimination due to military obligations and it provides 
reemployment rights to our servicemembers when they return from 
their military duty.
    The Department of Labor administers this law. The 
Department of Labor's Veterans' Employment and Training Service 
conducts outreach and education for employers and 
servicemembers--the employers include the Federal Government--
and investigates complaints by servicemembers and veterans.
    To accomplish this mission, we work very closely with the 
Department of Defense's Employer Support of the Guard and 
Reserve. We also work very closely with the Department of 
Justice and the Office of Special Counsel when we are unable to 
resolve complaints and they are referred for representation and 
enforcement.
    Since 2001, we have done many things to make USERRA more 
effective. New regulations spell out in common language the 
employers' obligations and the employees' rights. The new rules 
make it easier to understand the law and actually help the 
employer understand how to deal with typical issues that may 
arise when the employees are called to military duty. We have 
introduced online complaint filing through our USERRA 
Electronic Advisor and that helps our users better understand 
not only the law, but also if they have a USERRA violation, how 
to make the complaint, because it walks them right through it. 
Forty-three percent of the complaints that we get where we do 
an investigation actually come from online, and that is up from 
31 percent last year.
    Employers are now required to post a USERRA notice to their 
employees, thanks to the wisdom of the Congress which dictated 
that, and VETS has also stepped up our training for USERRA 
investigators. We have also designated senior investigators. I 
think Mr. Stalcup alluded to some of the duties of those 
individuals because they now review all of our cases that are 
done by our line investigators.
    Our investigators take their work very seriously and we 
vigorously investigate complaints and we make every effort to 
bring employers into compliance. We do this through a network 
of over 100 trained investigators who are located in every 
State and territory. These same individuals investigate 
complaints of veterans' preference and they conduct extensive, 
continuous USERRA education and outreach to employers.
    When we are unable to bring employers into compliance and 
resolve complaints, we work with the servicemembers to assist 
in having their case referred to Justice if it is the case of a 
private employer or a State or local government, or the Office 
of Special Counsel in the case of Federal employees. We have 
excellent working relationships with both of these enforcement 
agencies.
    This hearing is about the OSC-VETS demonstration project. 
It is a multi-year demonstration where roughly half of the 
Federal sector USERRA cases are investigated by OSC and the 
other half are investigated by VETS. I think the demonstration 
has had some very positive results. The agencies have cross-
trained, and in particular, OSC has been very helpful in 
teaching us about prohibited personnel practices. In addition, 
our two agencies meet by phone or in person monthly to discuss 
USERRA issues in the Federal Government. So the working 
relationships are very, very good.
    The Government Accountability Office, as Mr. Stalcup just 
talked about, recently concluded their review of the VETS 
demonstration and recommended that VETS improve procedures to 
ensure that the claimants are advised of their right to have 
their case referred to OSC or to DOJ. The GAO recommended that 
VETS develop some internal mechanisms for unresolved claims 
before VETS notifies the claimant that their case will be 
closed. GAO also recommended that VETS put into place internal 
controls to ensure that our database and our reporting are more 
accurate with regard to case closure dates and the outcomes of 
these claims.
    As mentioned before, we are addressing each of these 
recommendations. Our staff has received new instructions on 
notifying claimants of their referral rights. We have 
incorporated these instructions into our operations manual that 
comes out in January and we conduct pretty regular training on 
this now. We also conduct investigator conference calls to 
discuss proper investigative procedures and reinforce them.
    We are developing some distance learning programs for our 
investigators and we have corrected the problem of duplicate 
cases. I would be happy to talk about that in the question and 
answer period.
    As I mentioned, I do believe the demonstration has had 
positive results. I also believe the demonstration has served 
its purpose and should be terminated. As a result of our USERRA 
training, the OSC-VETS demonstration project and the GAO 
review, I believe VETS is better positioned than ever to handle 
the Federal sector USERRA cases. We already handle 95 percent 
of all USERRA cases. The GAO found that VETS investigates or 
resolves these cases faster than OSC. Mr. Stalcup talked about 
that earlier. We resolve 95 percent of the Federal sector cases 
without having those cases go to OSC for referral.
    I believe we have the knowledge, skill, and experience. Our 
staff has years of experience. They are all veterans and they 
know USERRA and they know how to resolve the cases. With our 
presence in every State, we are more likely to go face-to-face 
with an employer, which is really the best way to find out and 
collect your evidence.
    Our approach is always to protect the veterans' employment 
rights and to get their jobs back while making sure that there 
is a good relationship between the employer and the employee, 
so the employee has a place to come back to. We not only 
protect servicemembers' USERRA rights, we also protect their 
veterans' preference, we provide transition employment 
assistance to all servicemembers before they leave the 
military, and we have veterans' employment representatives in 
the workforce who do job counseling and job referral and job 
placement. So, we are there to ensure not only their employment 
and reemployment rights, but we are also there to make sure 
that, in any event, their employment needs are taken care of.
    Finally, I would just say that I believe that the second-
level review of USERRA cases is very important. If VETS 
investigates a complaint and we are unable to resolve the 
complaint, then that complaint can be referred to OSC and the 
veteran will receive a second review of the complaint. I think 
this is very important. But, it is not happening in the cases 
that OSC is now investigating.
    I want to thank you for the opportunity to appear before 
you today and I would be pleased to respond to your questions.
    [The prepared statement of Mr. Ciccolella follows:]
 Prepared Statement of Hon. Charles S. Ciccolella, Assistant Secretary 
    for Veterans' Employment and Training, U.S. Department of Labor
    Chairman Akaka and Ranking Member Burr, and distinguished Members 
of the Committee:

    I am pleased to appear before you today to discuss issues relating 
to the Uniformed Services Employment and Reemployment Right Act 
(USERRA) program.
    The principal programs and services of the Department of Labor's 
(DOL) Veterans' Employment and Training Service (VETS) focus on three 
areas:

     Providing employment services for veterans in America's 
publicly funded Workforce Investment System (One-Stop Career Services)
     Providing transition assistance for separating military 
members
     Protecting servicemembers' employment rights

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    I will focus today on protecting servicemembers' employment rights 
under USERRA.
     the uniformed services employment and reemployment rights act
    USERRA protects the public and private sector civilian job rights 
and benefits of veterans and members of the armed forces, including 
National Guard and Reserve members. USERRA also prohibits employer 
discrimination due to military obligations and provides reemployment 
rights to returning servicemembers. VETS not only investigates 
complaints by servicemembers and veterans, it also administers a 
comprehensive outreach, education, and technical assistance program 
here in the United States and around the world.
    VETS works closely with the Department of Defense's (DOD) Office of 
the Assistant Secretary for Reserve Affairs and Employer Support of the 
Guard and Reserve (ESGR) to ensure that servicemembers are briefed on 
their USERRA rights before and after they are mobilized. We conduct 
continuous USERRA outreach and education to inform servicemembers and 
employers on their rights and responsibilities under the law. Since 
most complaints result from a misunderstanding of the USERRA 
obligations and rights, we took an important step in 2005 to make it 
easier to understand the law by promulgating clear, easy-to-understand 
regulations in question and answer format. VETS has provided USERRA 
assistance to over 480,000 servicemembers, employers and others.
    We have also made it easier for a servicemember to determine if he 
or she has a valid complaint and if so, to file a USERRA complaint 
online through our interactive USERRA elaws Advisor, which provides the 
user with information on eligibility and rights and responsibilities 
under the law. The Advisor is available 24 hours a day, 7 days a week, 
at www.dol.gov/elaws/userra.htm.
    We vigorously investigate complaints, and when employers do not 
comply with the law, we make every effort to bring them into 
compliance. We do this through a network of over 100 highly trained 
investigators located throughout the Nation who investigate claims of 
violations of USERRA and Veterans' Preference. These same individuals 
also conduct extensive compliance assistance outreach to employers and 
servicemembers in their states.
    VETS coordinates with ESGR, the Office of Special Counsel (OSC), 
and the Department of Justice (DOJ) to ensure the employment rights and 
benefits for returning servicemembers are protected. As explained in 
their statement provided for this hearing, ESGR engages in a number of 
efforts to ensure employer support for the Guard and Reserve is 
sustained. ESGR also reinforces the relationship between employers and 
employees through informal USERRA mediation. DOJ and the OSC help 
enforce USERRA by representing USERRA complainants when the Department 
of Labor is unable to resolve the complaint and/or when the 
servicemember or veteran requests their case be referred.
    VETS has a decades-long history of protecting the rights and 
interests of American service men and women employed in both the public 
and private sectors by investigating complaints under USERRA and its 
predecessor laws. Complaints under USERRA peaked in 1991 following 
mobilizations for Operation Desert Storm, when claims topped 2,500. 
After 9/11, USERRA complaints rose again, from approximately 900 per 
year to approximately 1,500 in fiscal year 2004 and fiscal year 2006. 
Complaints in fiscal year 2007 decreased to 1,400. As the chart below 
shows, complaints during the Global War on Terror have never approached 
their Desert Storm high. We attribute much of this result to VETS' 
comprehensive outreach to servicemembers and employers and to the 
agency's user-friendly 2005 regulations.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

     demonstration project with the office of special counsel (osc)
    In 2004, Congress passed the Veterans Benefits Improvement Act 
(VBIA). Section 214 of that Act required the Secretary of Labor and the 
OSC to carry out a multi-year demonstration project under which USERRA 
claims made by Federal Government employees whose social security 
number ends in an odd-numbered digit are referred to OSC for 
investigation, resolution and enforcement. The Government 
Accountability Office (GAO) evaluated the demonstration project and 
published the report of its evaluation in July of this year. The 
demonstration project was to conclude at the end of September 2007, but 
the current Continuing Resolution extended the demonstration project 
through November 16, 2007.
    Since inception of the pilot on February 8, 2005 through the end of 
fiscal year 2007, VETS received 3,792 USERRA complaints. Of those, 614 
(16.2 percent) were Federal cases that were subject to the 
demonstration. VETS transferred 288 of those Federal cases to OSC under 
the demonstration.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    The demonstration project has produced several positive effects. 
VETS worked closely with OSC throughout the project to improve our 
investigators' ability to identify potential ``mixed cases,'' which are 
USERRA cases that may also include related prohibited personnel 
practices under the Federal civil service laws. VETS also spurred 
closer ties by convening monthly meetings in which DOL and OSC 
officials discuss and resolve USERRA issues. In addition, VETS is 
addressing several data collection practices that GAO identified in its 
study of the demonstration project.
    Recently, there has been discussion about whether to continue the 
demonstration project. We believe that the Department of Labor is 
better positioned than ever before to serve the needs of all veterans, 
including those who work in the Federal sector. We also believe that 
splitting USERRA claims between the two agencies is not in the best 
interests of veterans.
    First, VETS should continue to investigate all USERRA claims, 
Federal or nonFederal, because we are a veterans-focused agency whose 
sole mission is to serve the workplace needs of separating 
servicemembers and veterans. We accomplish our mission through a 
nation-wide network of highly skilled Federal employees who are 
employment specialists. Almost all are veterans themselves. They are 
trained to meet the many workplace employment needs of today's 
servicemembers.
    VETS' Federal employment specialists are located where veterans 
need them most--in all 50 states, the District of Columbia, and Puerto 
Rico. These specialists conduct outreach and provide technical 
assistance to employers, servicemembers, veterans, and veterans' 
organizations on employment and reemployment issues at the national, 
state and local levels, including at locations where servicemembers are 
demobilized. One frequently overlooked fact is that the vast majority 
of reemployment rights problems are resolved by VETS before a USERRA 
claim is ever filed. This is done at the local level through direct 
informal technical assistance that helps returning servicemembers 
secure their employment and reemployment rights in accordance with the 
law.
    Finally, the objectives of the demonstration project were to 
determine whether transferring USERRA cases involving Federal employers 
to OSC would result in ``improved services to servicemembers and 
veterans'' or ``reduced or eliminated duplication of effort and 
unintended delays in resolving meritorious claims.'' To our knowledge, 
neither result has been realized.
    VETS is proud of its record in enforcing this statute since its 
enactment, including its continuous efforts to improve services. For 
example, over the past 10\1/2\ years:

     91 percent of Federal USERRA cases were resolved by VETS 
without need for referral to the Office of Special Counsel;
     83 percent of ``meritorious'' Federal USERRA cases 
resolved by VETS (claims granted or settled) reached resolution within 
90 days.

    I believe that the USERRA protections of servicemembers and 
veterans are best served by VETS retaining the primary investigative 
authority for all USERRA cases, regardless of employer.
    recommendations of gao's report on dol/osc demonstration project
    GAO's Report (GAO-07-907, July 2007) that evaluated the 
demonstration project recommended that VETS institute improved 
procedures to ensure claimants are notified of their right to have 
their case referred to OSC, if a Federal case, or to the Department of 
Justice, if a nonFederal case, and that our investigators undergo 
mandatory training on those procedures. The report also recommended 
that VETS develop and implement an internal review mechanism for all 
unresolved claims before claimants are notified of determinations and 
cases are closed, to help ensure adherence to procedures and standards. 
Finally, GAO recommended that VETS implement internal controls to 
ensure that our investigations database accurately reflects the number 
of unique claims, the dates that these claims were closed and the 
outcomes of the claims.
    VETS is actively addressing the issues raised in GAO's Report. VETS 
has taken positive steps to address each of these recommendations. For 
example:

     VETS investigative staff received new instructions on 
notifying claimants of their right to referral and on recording the 
appropriate closure date for a claim.
     These instructions have been incorporated into the revised 
USERRA Operations Manual, which will be field-tested in November and 
fully implemented in January 2008. The new manual will also clarify 
procedures for documenting case outcomes and recording them correctly 
in the VETS investigative database.
     VETS investigators have all participated in mandatory 
conference calls reinforcing procedures for notifying claimants of 
their right to referral. In addition, regional investigator training is 
being conducted in each of the VETS regions and this training will also 
focus on these notification procedures.
     VETS is developing an on-line distance learning module for 
investigators that will include this instruction.
     VETS has already identified ways to correct previous 
reporting practices that resulted in duplicate cases being reported. We 
are working with GAO to ensure that issues identified by GAO 
surrounding duplicate cases are addressed.

    In sum, the demonstration project has proved valuable to VETS. We 
have institutionalized a close working relationship with OSC that will 
continue to pay 6 dividends long after the project comes to an end. In 
addition, GAO's audit identified several areas in which our 
investigations and reporting could be improved and, as mentioned, we 
are now addressing those areas.
    VETS is committed to continuous improvement of our USERRA 
investigative processes and our reporting to Congress on 
investigations. As a result of that commitment, we have made a number 
of investments to our USERRA program, and more are planned. An 
investment in VETS' USERRA program is an investment in protecting the 
employment rights of all servicemembers and veterans covered under 
USERRA, regardless of whether their employer is the Federal Government, 
a state or local government, or a private entity.
    For these reasons and others I have already highlighted, we believe 
all USERRA investigations should be conducted by VETS.
           protecting jobs for caretakers of wounded warriors
    The Committee also asked me to address the issue of providing 
employment protections to family members of injured servicemembers.
    On March 6, 2007, President Bush issued an executive order 
establishing the President's Commission on Care for America's Returning 
Wounded Warriors ``to provide a comprehensive review of the care 
provided to America's returning Global War on Terror service men and 
women from the time they leave the battlefield through their return to 
civilian life.'' Former Senator Bob Dole and former Secretary of Health 
and Human Services Donna Shalala co-chaired the Commission. On July 30, 
2007, the Commission transmitted its report to the President, entitled 
Serve, Support, Simplify: Report of the President's Commission on Care 
for America's Returning Wounded Warriors (the Report).
    The Report recommended amending the Family and Medical Leave Act 
(the FMLA) to allow up to 6 months of leave for a family member of a 
servicemember who has a combat-related injury. The Administration 
strongly supports the Commission's recommendation to provide leave and 
believes that it should be implemented promptly. However, some 
modification is necessary to address the mobile nature of military 
families.
    First, in this situation, we believe that it is more helpful to 
utilize the FMLA as a starting point rather than amend the law because 
of practical difficulties that would make it difficult to achieve the 
necessary protections for military families. The statutory provisions 
on the duration of leave, the serious health conditions that entitle an 
employee to leave, and the procedures for certification of health 
conditions that are central to the FMLA may not provide the most 
appropriate structure for effectuating the Commission's recommendation.
    We believe that it is more appropriate to create a new statute with 
a new leave concept based at least in part on the FMLA, but with 
several important adjustments. Second, although the Commission 
indicated that the leave should be available to employees who meet the 
FMLA's ``other eligibility requirements,'' it does not appear that the 
Commission considered the unique hardship that the FMLA eligibility 
requirements would impose on families of servicemembers.
    For example, the FMLA limits eligibility for job-protected leave to 
employees who have been employed by their employer for at least 12 
months and who have worked at least 1,250 hours for their employer in 
the preceding 12-month period. Congress gave careful consideration to 
establishing those eligibility requirements when it enacted the FMLA. 
But because military families, and more specifically the spouses and 
children of servicemembers, often move from one city to another every 
few years as the servicemember receives new assignments, a significant 
number of family members of combat-wounded servicemembers would not be 
eligible for leave under the FMLA under the statute's prior service 
requirements.
    The Department does not believe that the Commission intended to 
exclude those individuals from the job-protected leave addressed in its 
recommendation.
    With those concerns in mind, we believe that legislation 
implementing the Commission's recommendation should be guided by the 
following principles:

    1. Spouses, parents, and children of a recovering servicemember 
should be able to take up to 26 weeks of unpaid, job-protected leave to 
care for the servicemember within the 2 years following injury.
    2. Employees should be able to take the leave all at once or spread 
it out over time.
    3. Employers should continue to maintain any health coverage for 
the employee during the period of leave.
    4. Employees and employers should be able to substitute available 
paid leave for unpaid military caregiver leave.
    5. At the end of the leave, the employee should be entitled to be 
reinstated to the same position or an equivalent position.
    6. Caregivers should not have to be employed by an employer for 12 
months or work 1,250 hours in the preceding year to be eligible for 
job-protected leave.
    7. Taking military caregiver leave should not diminish an 
employee's right to take leave under the FMLA for other reasons, such 
as to care for a newborn baby or for an employee's own serious health 
condition, subject to reasonable limits on the extent to which military 
caregiver leave and FMLA leave may be combined to care for a recovering 
servicemember.

    The Administration has submitted ``America's Wounded Warrior Act'' 
to the Congress in order to implement the recommendations of the Dole/
Shalala Commission. Title III of this bill incorporates all of these 
principles and provides a new form of leave for family members to care 
for their wounded or injured servicemember with a combat-related 
serious injury, disability, or physical disability. I would urge the 
Congress to pass this legislation.
    Our Nation owes an enormous debt of gratitude to our servicemembers 
who are returning from their service in the Global War on Terror. The 
Department of Labor is committed to maximizing employment opportunities 
and protecting servicemembers' jobs as they answer the Nation's call to 
duty. We have a special obligation to those who are seriously wounded, 
ill, or injured, and to their families.

    Thank you for the opportunity to be with you today. I am prepared 
to respond to your questions.
                                 ______
                                 
      Post-Hearing Questions Submitted by Hon. Daniel K. Akaka to 
               Charles S. Ciccolella, Department of Labor
    Question 1. This first question is for both DOL and OSC Our final 
witness this morning, Mr. Mathew Tully, an attorney specializing in U-
Sarah law, will testify that he believes that the federal government 
could save hundreds of millions of dollars by abolishing DOL 
involvement in U-Sarah enforcement and mandating the award of 
attorney's fees and litigation costs when a claimant successfully 
proves a case of discrimination or retaliation. Please comment on that 
view.
    Question 2. GAO found that there were problems with the consistent 
notification to claimants of their rights to pursue their claims 
through OSC or through the Merit Systems Protection Board. It is my 
understanding that you have begun to take steps to correct this 
situation. Please update the Committee on where you are in terms of 
mandatory training of VETS personnel on this issue?
    Question 3. What is the status of your plans to complete revision 
of your U-Sarah Operations Manual?
    Question 4. It is particularly troubling to me that the ``closed 
code'' used by VETS to describe the outcome of claims was found to be 
not sufficiently reliable by GAO What steps have you taken to improve 
the reliability of this data?
    Question 5. What are the merits of having all claims--both federal 
and non-federal--reviewed and processed by one entity versus the merits 
of having an agency with institutional experience with federal sector 
enforcement handle those claims?
    Question 6. What funding and staffing implications, if any, would 
there be if the federal sector claims were transferred to OSC?
    Question 7. I'm pleased to see some positive results flowing from 
the demonstration project--especially the closer collaboration and 
cooperation between OSC and DOL If the demonstration project is 
discontinued, will there still be interactions, such as monthly 
meetings, to drive this collaboration?
    Question 8. You cite that over the past 10 years, 83 percent of 
``meritorious'' federal U-Sarah claims were resolved by VETS within 90 
days. What percentage of claims filed does this represent? In other 
words, what percentage of claims were deemed to be without merit?
    Is there any record kept of those deemed to be without merit in 
order to track whether the claimant subsequently sought and received 
favorable judgment in a legal proceeding?
                                 ______
                                 
  Response to Written Questions Submitted by Hon. Daniel K. Akaka to 
               Charles S. Ciccolella, Department of Labor
    Dear Mr. Chairman: I write to respond to your letter requesting 
feedback on testimony provided by Mr. Mathew B. Tully at the October 
31, 2007 hearing on the Uniformed Services Employment and Reemployment 
Rights Act of 1994 (USERRA). In his testimony, Mr. Tully raised a 
number of issues and made several recommendations. Mr. Tully's 
fundamental concern is that the Department's Veterans' Employment and 
Training Service's (VETS) enforcement of USERRA is a serious problem, 
which he proposes to fix largely by shifting enforcement from the 
Federal Government to private attorneys like himself.
    As an initial matter, a comparison of Mr. Tully's firm's USERRA 
caseload and success rates with that of the Federal Government is 
misleading. As Special Counsel Scott Bloch noted at the hearing, Mr. 
Tully and his firm specialize in a narrow class of cases in which 
servicemembers were denied military leave by their Federal employers 
before 2001.
    The Department of Labor has long believed that most military leave 
cases can be resolved quickly and efficiently at an administrative 
level because they do not, for the most part, involve complex 
employment issues. For this reason, VETS, the Office of the Special 
Counsel, the Office of Personnel Management, and the Department of 
Defense, have ensured that servicemembers are able to resolve their 
military leave cases through a streamlined administrative process, that 
in most cases, eliminates the need for a USERRA case to be opened at 
all. While individuals remain free to bypass this process and retain 
private attorneys, it is not clear that attorneys in these cases 
necessarily add value. See, e.g., Jacobsen v. Department of Justice, 
103 MSPR 439, 442 note (MSPB Sept. 22, 2006) ($8700 in attorneys fees 
denied where attorney obtained 16 hours of restored leave through 
litigation after the employing agency had determined that 20 hours of 
leave may have been charged incorrectly), aff'd 500 F.3d 1376 (Fed. 
Cir. 2007).
    I would also note that in contrast with the practice of most 
private law firms, VETS accepts all USERRA cases that it receives. This 
is true regardless of the complexity of the issue involved, the 
complaint's relative merits, or the chances of success. Private law 
firms, on the other hand, can screen cases on many different levels, 
often avoiding the most difficult cases. A direct comparison between 
private law practices and public sector practices is not a valid 
comparison. Not only does Mr. Tully ignore this fact, he cites a 
particularly inapt proxy for VETS' success rate: the percentage of 
cases VETS refers for prosecution. A more accurate figure, of course, 
would have been the percentage of claims that VETS receive that are 
resolved in the claimant's favor. In fiscal year 2006, this figure was 
30 percent, which was similar to the 27 percent rate claimed by OSC.
    Mr. Tully also offered statistics that present an incomplete 
picture of VETS' USERRA caseload. He claims, for example, that his firm 
processed 1,802 claims between February 8, 2005 and September 30, 2006, 
and that VETS only handled 166 cases during this time. However, the 166 
VETS cases he cited were the Federal-sector cases VETS investigated 
during that period, not the total number of cases that VETS handled. A 
more complete picture would have noted that in addition to those 
Federal cases, VETS opened over 2,000 non-Federal cases during that 
period. Those cases were professionally investigated at no cost to the 
claimant, included all claims filed with VETS, not just those 
considered ``winnable,'' and involved multiple and complex employment 
issues, not simple cases of reinstating military leave to Federal 
employees. Furthermore, the claimants were informed of their right to 
pursue their case with a private attorney, if they so chose.
    The Department, of course, acknowledges the important role that the 
private bar plays in securing the reemployment and nondiscrimination 
rights of servicemembers. We have serious concerns, however, about any 
proposal that would eliminate the right of servicemembers to secure the 
type of valuable help that VETS has been providing for many decades at 
no cost to claimants. In addition to preparing cases for litigation, 
the Department of Labor has consistently sought to resolve USERRA 
issues and disputes quickly and efficiently at the lowest level 
possible, thereby preserving working relationships between employers 
and their employees. Claimants should retain the option of pursuing 
such resolutions rather than be forced to pursue relief through costly, 
adversarial and frequently hostile litigation.
    Thank you for your continued support of our Nation's servicemen and 
women and for your interest in USERRA. I would be happy to meet with 
you or your staff to discuss any of Mr. Tully's proposals in more 
detail.

    Chairman Akaka. Thank you very much, Mr. Ciccolella. Now we 
will hear from Hon. Jim Byrne.

STATEMENT OF JIM BYRNE, DEPUTY SPECIAL COUNSEL, U.S. OFFICE OF 
 SPECIAL COUNSEL; ACCOMPANIED BY PATRICK BOULAY, CHIEF, USERRA 
              UNIT, U.S. OFFICE OF SPECIAL COUNSEL

    Mr. Byrne. Thank you, Mr. Chairman. Chairman Akaka, Ranking 
Member Burr, Senator Tester, good morning. Thank you for the 
opportunity to testify on matters important to our 
servicemembers, their families, and our national security. My 
name is Jim Byrne and I am the Deputy Special Counsel for the 
U.S. Office of Special Counsel, OSC. I am joined here this 
morning by Patrick Boulay, Chief of the Office of Special 
Counsel unit that investigates and prosecutes violations of the 
Uniformed Services Employment and Reemployment Rights Act.
    It is our privilege to enforce USERRA. Both as Deputy 
Special Counsel and as a member of the United States Marine 
Corps Reserve, I am proud of our work to protect the employment 
rights of those who give of themselves for our country.
    USERRA expanded OSC's role as the protector of the Federal 
Merit System and Federal workplace rights. The Department of 
Labor's Veterans' Employment and Training Services receives 
USERRA claims to investigate and attempt to resolve with 
employers. Cases that DOL-VETS cannot resolve may be referred 
to OSC at the servicemember's request. We may then represent 
the claimant before the Merit Systems Protection Board and the 
U.S. Court of Appeals for the Federal Circuit.
    Three years ago, the USERRA demonstration project gave OSC 
exclusive investigative jurisdiction over certain Federal 
sector USERRA cases to determine if we could provide better 
service to Federal employees. Under the demonstration project, 
OSC investigates over half of the Federal employee cases as 
well as those in which the USERRA claim is related to a 
prohibited personnel practice under OSC's jurisdiction.
    Our work has important achieved results. Servicemembers 
returning from active duty service have benefited from 
corrective actions we have obtained--back pay, promotions, 
restored benefits and seniority, time off, and case 
settlements. We have obtained corrective action in more than 
one-in-four USERRA claims. Our centralized process ensures 
USERRA claims are resolved efficiently, thoroughly, and 
correctly. In addition to obtaining corrective action for the 
claimant, OSC also seeks systemic corrective action to prevent 
future agency violations. We may help an agency modify its 
leave policy or provide USERRA training.
    OSC participated in the GAO demonstration project 
evaluations and their report came late, leaving Congress with 
little time to act before the project would end on September 
30. We appreciate that Congress has extended the demonstration 
project in the fiscal year 2008 Continuing Resolution.
    GAO's report did not address the central question of the 
demonstration project: Are Federal sector USERRA claimants 
better served when they can make complaints directly to OSC for 
both investigation and litigation? We believe the answer is, 
``clearly yes.''
    Our specialized USERRA Unit is second to none and is 
uniquely suited to assist servicemembers with USERRA claims 
against Federal employers. OSC protects the Federal Merit 
System. Thus, our USERRA Unit attorneys and investigators are 
experts in Federal personnel law. They have years of experience 
investigating, analyzing, and resolving allegations of 
violations of Federal employment rights. Recently, Sam Wright, 
Reserve Retired Navy Captain, a nationally known USERRA expert, 
joined our office. He helped draft USERRA and has written and 
spoken extensively about the law.
    We are proud of our achievements. Since Scott Bloch became 
Special Counsel, we filed the first prosecutions by OSC in the 
law's history, obtaining corrective action in cases that had 
been delayed for years. Cases that before took several years 
with no positive conclusion now routinely take OSC under a year 
to investigate and resolve favorably.
    Giving OSC exclusive jurisdiction over USERRA Federal 
sector claims would be doubly positive. DOL-VETS could focus on 
providing their best service to non-Federal USERRA claimants 
and Federal servicemembers would benefit from OSC's specialized 
experience.
    More than 92,000 members of the National Guard and Reserve 
are currently mobilized. When they start demobilizing at a 
faster rate, will we see a spike in the number of USERRA 
claims? It is vital that government be fully ready to provide 
prompt and effective action on these claims.
    We believe there is adequate information today to support a 
decision by Congress to assign OSC the task of investigating 
and enforcing USERRA claims by Federal employees. OSC is ready.
    I look forward to your questions.
    [The prepared statement of Mr. Byrne follows:]
      Prepared Statement of James Byrne, Deputy Special Counsel, 
                     U.S. Office of Special Counsel
    Chairman Akaka, Ranking Member Burr, and Members of the Committee, 
good morning. 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 Jim Byrne and I am Deputy Special Counsel of the U.S. 
Office of Special Counsel (OSC). I am joined today by Patrick Boulay, 
Chief of the Office of Special Counsel unit that investigates and 
prosecutes violations of the Uniformed Services Employment and 
Reemployment Rights Act.
    Thirteen years ago this month, Congress enacted and President 
Clinton signed into law the Uniformed Services Employment and 
Reemployment Rights Act of 1994, or USERRA, a rewrite of the Veterans' 
Reemployment Rights (VRR) law of 1940. The VRR law served our Nation 
reasonably well for more than half a century, but over the years 
numerous piecemeal amendments and sometimes conflicting judicial 
constructions had made the law somewhat confusing and cumbersome. There 
were also some loopholes in the VRR law's enforcement mechanism, 
especially as it applied to the Federal Government as a civilian 
employer.
    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. USERRA also provided, for the first 
time, for persons asserting reemployment rights against Federal 
agencies to have the assistance of OSC and the Department of Labor's 
Veterans' Employment and Training Service (DOL-VETS).
    Under section 4322 of USERRA, a person claiming a violation by any 
employer (Federal, state, local, or private sector) is permitted to 
make a written complaint to DOL-VETS, and that agency is required to 
investigate and to attempt to resolve the matter. If the DOL-VETS 
efforts do not result in resolution of the complaint, and the employer 
is a private employer or a state or political subdivision of a state, 
the matter may be referred to the Attorney General. If the employer is 
a Federal executive agency, it may be referred to OSC.
    The passage of USERRA expanded OSC's role as protector of the 
Federal merit system and Federal workplace rights. However, it 
established a two-step process in which the DOL-VETS would receive all 
Federal and non-Federal sector USERRA claims, to investigate and 
attempt to resolve with employers. If DOL-VETS is unable to resolve a 
claim against a Federal employer, it is then referred to OSC at the 
servicemembers' request, as DOL-VETS has no prosecutorial authority.
    When OSC is satisfied that the claimant is entitled to relief, we 
may exercise our prosecutorial authority to represent the claimant 
before the Merit Systems Protection Board (MSPB) and the U.S. Court of 
Appeals for the Federal Circuit, if necessary. In addition to obtaining 
corrective action for the claimant, in our role as protector of the 
merit system, OSC seeks ``systemic'' corrective action to prevent 
future violations by an agency. For example, we would assist an agency 
to modify its leave policy so it does not violate USERRA, or provide 
USERRA training to agency managers and H.R. specialists.
    Three years ago, with enactment of the Veterans Benefits 
Improvement Act of 2004, a USERRA demonstration project was established 
as Congress sought to determine if OSC could provide better service to 
Federal employees filing USERRA claims. This gave OSC an opportunity to 
apply our extensive experience investigating and prosecuting Federal 
personnel laws to USERRA. It also eliminated (for some claims) the 
cumbersome, time-consuming ``bifurcated'' process whereby Federal 
USERRA claims often bounce around different Federal agencies before 
being resolved.
    Under the demonstration project, OSC has exclusive investigative 
jurisdiction over certain Federal-sector USERRA cases. While civilian 
employees of the Federal Government represent about 10 percent of the 
National Guard and Reserve, they file a disproportionately greater 
percentage of claims under USERRA. Considering that the law specifies 
that the Federal Government is supposed to be a ``model'' employer, 
this is a disturbing trend.\1\
---------------------------------------------------------------------------
    \1\ 38 U.S.C. 4301(b)
---------------------------------------------------------------------------
    Under this demonstration project, OSC investigates over half of the 
Federal employee cases (those cases in which the claimant has an odd 
Social Security Number plus the cases in which the claimant's USERRA 
claim is related to a Prohibited Personnel Practice claim that is 
otherwise under OSC's cognizance). The results speak for themselves: 
OSC has obtained corrective action for servicemembers in more than one 
in four USERRA claims filed with us. This is very high when you 
consider that the rate of positive findings and corrective action for 
governmental investigative agencies is usually well under 10 percent. 
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.
    Servicemembers returning from Iraq or from other active duty 
service have benefited from numerous corrective actions we have 
obtained for them, including back pay, promotions, restored benefits 
and seniority, time off and case settlements that result in systemic 
change to make sure future violations of USERRA do not occur where they 
work.
    Congress directed the Comptroller General to evaluate the 
demonstration project and to provide a report to Congress not later 
than April 1, 2007. OSC participated in the evaluations conducted by 
the Government Accountability Office, but we were disappointed that 
their draft report was not available for review until mid-June, and the 
final report was published only a week before the congressional August 
recess. This left Congress with almost no opportunity to act on USERRA 
before the demonstration projected concluded on September 30th. We 
appreciate that Congress enacted an extension of the USERRA 
demonstration project in the FY2008 Continuing Resolution.
    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? We 
respectfully submit that the answer to that question is ``clearly 
yes.''
    We of the U.S. Office of Special Counsel are privileged to be 
engaged in the enforcement of USERRA. Both as Deputy Special Counsel, 
and as a member of the U.S. Marine Corps Reserve, I am proud of the 
work we are doing to protect the employment rights of those who give of 
themselves for our national security. Our specialized USERRA unit is 
second to none. We employ members of the National Guard and reserve at 
OSC; four of our last six hires served in the military and are still in 
the reserve. We also just recruited a nationally known USERRA expert, 
Sam Wright, a captain in the Navy Reserve, who helped draft the law and 
has written and spoken extensively about USERRA throughout his career. 
He can assist us not only in the prosecution of complex cases but also 
in outreach and public affairs aspects of our work for veterans and 
active members of the National Guard and Reserve.
    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 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.\2\ For this reason, Federal 
sector USERRA investigation and enforcement is a natural ``fit'' for 
OSC.
---------------------------------------------------------------------------
    \2\ It should be noted that 5 U.S.C. 2302(b)(11) makes it a 
prohibited personnel practice for any Federal supervisor or manager to 
take a personnel action forbidden by a veterans' preference statute or 
to refuse to take an action required by a veterans' preference statute. 
We believe that this includes USERRA.
---------------------------------------------------------------------------
    We are proud of the achievements of the office. Since the advent of 
Scott Bloch's administration of OSC, we have filed the first ever 
prosecutions by OSC in the law's history, obtaining corrective action 
in many cases that had been delayed for years and had been essentially 
given up for lost. Take the case of an Army Corps of Engineers employee 
who was not reemployed after his active duty with the Air Force. After 
his case went unresolved elsewhere, OSC prosecuted the case before the 
MSPB and obtained full corrective action, including $85,000 in back 
pay, reemployment in his former position, and full restoration of 
benefits. Or, the case of the injured Iraq war veteran who returned 
from duty only to be sent home by his Federal employer because he could 
no long perform his former job. After OSC became involved, we convinced 
the agency to find him a suitable job consistent with his physical 
limitations and back pay for the time he was at home trying to figure 
out where to turn.
    Cases that before took several years to come to no positive 
conclusion now routinely take well under a year for OSC to investigate 
and resolve favorably. We are committed to getting as much relief as 
the law allows for our brave servicemembers, 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 civil service.
    Moreover, giving OSC exclusive jurisdiction over USERRA Federal 
sector claims would remove the burden from the Department of Labor 
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 servicemembers would be doubly 
positive--for Federal servicemembers who would benefit from OSC's 
specialized experience, and for those private sector servicemembers who 
would benefit from greater attention to their claims at DOL-VETS.
    Today, America is in the middle of the largest sustained military 
deployment in thirty years. That deployment but 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. Last 
week, the Department of Defense reported that 92,971 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.
                                 ______
                                 
 Responses to Post-Hearing Questions Submitted by Hon. Daniel K. Akaka 
  to Jim Byrne, Deputy Special Counsel, U.S. Office of Special Counsel
    Question 1. The GAO found that DOL's average processing time for a 
Federal U-Sarah claim ranged from 53 to 86 days. OSC's processing time 
WAS an average of 115 days. To what do you attribute the considerably 
longer process at OSC?
    Response. There are several important factors to consider when 
comparing case processing times at OSC versus DOL:\1\
---------------------------------------------------------------------------
    \1\ As a preliminary matter, GAO found that DOL's case closure 
dates were not reliable and, as a result, GAO could not accurately 
determine an average case processing time, and had to estimate a range 
using only a limited ``sample'' of files (in contrast to OSC, where all 
files were included). Specifically, GAO found that the closure dates 
entered into DOL's database did not match the dates on the closure 
notification letters to claimants in over 40 percent of the cases 
sampled (GAO Report 07-907, p. 4).
---------------------------------------------------------------------------
    (a) ``Administrative Closures:'' This refers to cases over which 
OSC or DOL lacks jurisdiction, there is no bona fide USERRA allegation 
(i.e., the claimant mistakenly characterizes an allegation as falling 
under USERRA), there is no meaningful corrective action, the claimant 
mistakenly filed a complaint form or filed it multiple times (e.g., 
with electronic filing), etc.
    OSC, as a rule, does not open such cases, and instead endeavors to 
provide information to the claimant regarding other possible options 
for redress. OSC generally only opens cases for which it will conduct a 
thorough investigation and legal analysis, including collecting and 
reviewing documents, interviewing witnesses, etc.
    By contrast, DOL opens such cases, and then quickly, sometimes 
within minutes, hours, or days, ``administratively'' closed them. OSC 
received from DOL information indicating that, during roughly the same 
time period covered by the GAO report, DOL closed 13 percent of its 
Federal USERRA cases within 1 day, 22 percent in one-to-two days, and 
34 percent within one week. This practice artificially, and 
significantly, lowers DOL's case processing times.
    In a letter to GAO in December 2006, OSC outlined three examples of 
cases that appear to have been opened by servicemembers only to be 
closed administratively by VETS. This information was discovered by OSC 
on the USERRA Information Management System (UIMS) managed by VETS:

    Example #1: Carlos XXXX opened USERRA claim #AL-2007-00009-30-V on 
    November 14, 2006, at 2:52 p.m. and USERRA claim #AL-2007-00010-30-
    V on November 30, 2006, at 3 p.m. According to UIMS, however, on 
    November 30, 2006, at 3:12 p.m., VETS ``resolved'' and closed 
    USERRA claim #AL-2007-00010-30-V.
    Example #2: Charles XXXX opened USERRA claim #VA-2007-00009-30-V on 
    November 14, 2006, at 2:30 p.m. Charles XXXX then opened USERRA 
    Claim #VA-2007-00010-30-V on UIMS on November 14, 2006, at 2:34 
    p.m. According to UIMS, these claims were ``resolved'' and closed 
    by VETS on November 14, 2006, at 2:46 p.m. and 2:47 p.m., 
    respectively. Notwithstanding VETS closing of cases on UIMS, OSC 
    received Charles XXXX's USERRA claim from VETS on November 14, 
    2006, and opened OSC file Number DP-07-0370.
    Example #3: Else XXXX opened USERRA claim #NC-2007-00001-30-G on 
    October 31, 2006, at 1:55 p.m. According to UIMS, VETS resolved and 
    closed the case on November 2, 2006 at 1:51 p.m.\2\
---------------------------------------------------------------------------
    \2\ U.S. Special Counsel letter to GAO (George Stalcup) of December 
19, 2006; Re: USERRA Demonstration Project (GAO Engagement Number 
450458).

    DOL continues to ``administratively'' close cases. In one recent 
example, DOL opened a case, discovered that OSC had jurisdiction over 
it, and ``administratively'' closed the case 3 days later and referred 
it to OSC. The GAO report briefly discussed related discrepancies 
between claims shown in the UIMS database, compared to the number 
processed, which included closed claims reopened as separate matters, 
duplicate filings and claims transferred to OSC after being opened in 
UIMS.\3\
---------------------------------------------------------------------------
    \3\ GAO Report 07-907 (pages 17 & 35).
---------------------------------------------------------------------------
    (b) ``Mixed'' Claims: Under the Demonstration Project (DP), OSC 
receives all Federal USERRA claims where a Prohibited Personnel 
Practice (PPP) is also alleged (regardless of claimant's Social 
Security Number). Approximately 20-25 percent of claims OSC received 
under the DP are these ``mixed'' claims. Because such claims involve 
more allegations and are generally more complex than USERRA-only 
claims, and because of the statutory requirement for PPP claims that 
OSC notify the claimant of its preliminary determination and provide an 
opportunity to respond, ``mixed'' claims take longer to investigate and 
resolve than USERRA-only claims. As a result, OSC's average case 
processing time is adversely affected when compared to DOL's.
    (c) Time Counted Toward Case Closure: OSC's understanding is that 
DOL counts only the days a case remains at VETS, not DOL as a whole, in 
determining the number of days it took to close a USERRA case. This 
practice ignores the significant amount of time a case might spend in 
DOL's Regional Solicitor offices for legal review, which often can be 
several months.\4\ From the claimant's perspective, the total amount of 
time it takes to resolve or refer his or her case, regardless of which 
DOL office has it, is the important factor. By contrast, OSC's 
processing time is measured from the date OSC received the case until 
the date OSC notified the claimant in writing of the outcome.
---------------------------------------------------------------------------
    \4\ GAO found that it took an average of 247 days, or over 8 
months, for DOL to process such cases from beginning to end (GAO Report 
07-907, p. 23). Only one such case was included in the 54 cases that 
GAO sampled to estimate a processing time ``range'' for DOL (GAO Report 
07-907, p. 37).
---------------------------------------------------------------------------
    (d) Differing Responsibilities: If DOL-VETS cannot resolve a 
Federal sector USERRA claim, it may simply close the claim and ask the 
claimant whether he or she wants it referred to OSC for possible 
prosecution before the MSPB. OSC, however, must also decide whether to 
file such litigation before the MSPB, an additional responsibility that 
increases its overall case processing times.

For these reasons, the case processing times reported by GAO are not an 
accurate, or reliable, basis on which to compare how quickly OSC and 
DOL process Federal sector USERRA cases. Accordingly, OSC respectfully 
disagrees that its process is ``considerably longer'' than DOL's. 
Moreover, OSC believes that its investigations are more thorough, its 
conclusions more legally sound, and the outcomes that it achieves more 
favorable for servicemembers, all important factors that GAO did not 
address in its report, which did not assess the quality of claims 
investigations. As was emphasized to GAO in our response to the report, 
over one-in-four claims investigated and closed by OSC have resulted in 
full corrective action for the servicemember.

    Question 2. During the demonstration project, OSC received six 
claims from DOL from claimants who requested referral of their claims. 
It is my understanding that in five of these cases OSC declined to 
represent the claimant. Of the claims that OSC processed during the 
demonstration project, how many claims did you agree to represent the 
claimant?
    Response. This presumably refers to the non-Demonstration Project 
cases discussed on page 23 of the GAO report (i.e., cases investigated, 
but not resolved, by DOL and referred to OSC, at the claimant's 
request, for possible prosecution before the MSPB). It is important to 
note that such cases are referred by DOL to OSC at the claimant's 
request, regardless of merit. Thus, many such cases are referred with a 
recommendation by DOL that OSC not represent the claimant before the 
MSPB. Nevertheless, of the four cases filed by OSC at the MSPB since 
2004 in which OSC obtained full relief for the claimant, DOL 
recommended that OSC not represent the claimant in two of those cases.
    If OSC determines that a USERRA case is meritorious (i.e., there is 
sufficient evidence of a violation and the claimant is entitled to 
relief), OSC first requests that the Federal agency voluntarily take 
appropriate corrective action. OSC has had tremendous success in 
convincing agencies to do so, as evidenced by OSC's greater than 25 
percent corrective action rate during the Demonstration Project (i.e., 
OSC obtaining corrective action for claimants in more than one-in-four 
of the USERRA cases it has received under the DP). OSC attributes this 
success to its thorough investigations and legal analysis, ability to 
educate Federal agencies about their obligations under USERRA, and the 
credible threat of litigation illustrated by the four MSPB cases cited 
above.
    If an agency does not agree to OSC's request in a timely manner, 
OSC will file litigation with the MSPB, not simply close the case and 
take no further action. Remarkably, OSC has yet to have to do so with 
any Demonstration Project cases, although there are several pending 
matters that OSC may file if agencies do not take the requested action. 
Thus, OSC has not formally represented any claimants before the MSPB in 
DP cases, but has represented claimants' interests to Federal agencies 
in the approximately 25 percent of meritorious cases it has received 
under the DP. In this sense, OSC has ``agreed to represent'' the 
claimant in roughly one-in-four DP cases (i.e., where OSC would have 
represented the claimant before the MSPB, but did not have to do so 
because the agency voluntarily agreed to OSC's request for corrective 
action).

    Question 3. If the Congress were to give jurisdiction of Federal U-
Sarah claims to OSC, what funding and staffing issues would you need to 
address and what would be an optimum time line needed for a smooth 
transition?
    Response. While OSC would need additional staff and resources over 
the long term to handle roughly double its current USERRA caseload, we 
have sufficient staffing flexibility and expertise in the short term to 
handle these cases immediately. In addition to the full-time USERRA 
Unit, which currently has nine attorneys and investigators, each of 
OSC's four field offices has received USERRA training and is currently 
handling a limited number of cases. In the short term, these field 
offices could handle additional USERRA cases while additional staff 
members were recruited for the USERRA Unit. An estimate of specific 
budgetary needs for OSC to exercise jurisdiction over Federal USERRA 
claims in FY2008 is at Appendix A.

    Question 4. This question is for both DOL and OSC: I am deeply 
concerned that individuals who are being sent to battle by the Federal 
Government are put in the position of having to do battle with that 
same government in order to regain their jobs when they return home. In 
your experience, can you think of any reason that the Federal 
Government (as an employer) would have any problems with complying with 
the law in this regard? Is it a matter of complexity, a matter of 
budget, or something else?
    Response. In OSC's experience, while Federal agency managers and 
Human Resource (HR) specialist often have a general awareness of 
USERRA, they often do not understand the full extent of their 
responsibilities to Federal employees who serve in the military. For 
example, while it seems rare for a Federal agency to flatly refuse to 
reemploy a returning servicemember, it may not do so properly (e.g., by 
failing to place the person in the ``escalator'' position). Or, the 
agency may not fully carry out its obligations to injured 
servicemembers (e.g., by failing to seek placement assistance from 
OPM). OSC is striving to correct these deficiencies by providing USERRA 
training, written guidance to agencies on common issues (e.g., advance 
notice requirements, reemploying injured servicemembers), and speaking 
at national conferences and events attended by agency managers, 
attorneys, and HR specialists. Moreover, OSC provides live technical 
assistance to agencies through its telephonic and e-mail USERRA 
Hotlines, staffed by its team of USERRA experts. OSC also intends to 
extend its highly successful 5 U.S.C. Sec. 2302(c) certification 
program to include USERRA. Through these efforts, OSC is helping to 
educate Federal agencies about USERRA and prevent future violations.

    Other factors that possibly contribute to USERRA violations by 
Federal agencies:

     The large proportion of Federal civilian employees who 
also serve in the military--according to DoD, about 25 percent of 
National Guard and Reserve members are civilian employees of the 
Federal Government. Federal employees generally have greater employment 
rights than private employees, and are possibly more aware of their 
rights.
     The decentralized nature of large agencies accounting for 
a higher proportion of USERRA violations (e.g., U.S. Postal Service, 
Veterans Affairs).
     USERRA can be demanding, as it should be, and is sometimes 
counter-intuitive or inconvenient for employers; thus, agencies may 
sometimes mistakenly believe their actions are not violating USERRA 
(e.g., refusing to hire a servicemember because he or she is about to 
be called up for military duty and cannot start work when the agency 
needs them).
     There is a tendency in some members of management to 
disparage those who serve because it makes their jobs more difficult, 
they are possibly perceived as ``getting special treatment'' and not 
having to work some shifts when they are on military training duty when 
others have to work those weekend shifts, for example. This is 
anecdotal, but it appears to be the case in some situations OSC has 
encountered.

    Question 5. In their testimony, GAO stated that, if OSC were given 
the authority to receive and investigate all Federal claims, a 
significant increase in the number of claims might necessitate a change 
to the oversight structure that you used during the demonstration 
project which relied heavily on the actions of one individual. Could 
you please comment on that concern?
    Response. OSC has superior persons with expertise and experience 
that will make such a restructuring unnecessary. The acting chief of 
the unit is highly experienced in OSC litigation and in USERRA and 
trained for a period of 2 years under the former chief. OSC hired a 
nationally known expert, Sam Wright, one of the ``fathers of USERRA,'' 
to work cases, perform outreach and serve as an adviser to the unit on 
complex matters. Few can claim to have his credibility on and knowledge 
of USERRA. OSC believes that its centralized approach has ensured 
timely, consistent, and most important, correct results in USERRA 
cases. If OSC were to receive all Federal USERRA claims, we would 
increase the number of investigators, attorneys and administrative 
support. Modifications to our organizational structure, adding deputy 
and team leader positions, would maintain centralization without 
dependency on the USERRA Unit Chief position.
                               Appendix A

  U.S. Office of Special Counsel.--Funding needed for OSC to handle all
                          Federal USERRA cases
------------------------------------------------------------------------
                                                            Percent of
              Object Class                    Amount       Supplementary
                                                              Request
------------------------------------------------------------------------
Salaries. The amount necessary to             $1,602,000             62%
 provide funding for approximately 16
 FTE in fiscal year 2008................
Benefits. The benefits required for the          417,000           16.1%
 approximately 16 FTE...................
Travel. This includes approximately               84,000            3.2%
 $60,000 in travel for investigations
 and approximately $24,000 in travel
 related to litigation..................
Transportation. Courier services,                  3,000            0.1%
 contract mail service, and freight,
 required for general expenses and also
 for delivery between headquarters and
 field offices..........................
GSA Rent. Since OSC's current space is           285,000           11.0%
 fully occupied by its headquarters and
 Washington DC field office, a small but
 secure additional suite of offices
 should be used to house the unit.......
Utilities and Communications.                     27,000            1.0%
 Communication costs related to local
 and long distance telephone services
 and Internet access make up the largest
 portion of this category...............
Printing. Printing for USERRA related              2,000            0.0%
 publications...........................
Other Services. Includes $21,000 in              101,000            3.9%
 annual litigation related non-travel
 expenses. Also includes $20,000 in
 training. Also includes WestLaw, travel
 services, and miscellaneous services.
 Accounting and payroll services would
 be handled through OSC existing systems
 and incur no additional cost. Also
 included here are $30,000 in
 miscellaneous non-recurring expenses
 connected to starting the full USERRA
 office in its first year...............
Supplies and Materials. General supplies          10,000            0.4%
 can include copier toner, printer
 toner, copy paper, bond paper, folders,
 files, binders, zip drives,
 whiteboards, business cards,
 subscriptions related to legal
 research, reference books, training
 materials, electronic subscriptions for
 access to data, water coolers, digital
 recorders, batteries, cassettes, disks,
 investigative supplies, and other
 supplies of all types..................
Equipment. Laptops and printers, telecom          52,000            2.0%
 equipment, and network equipment.
 Includes cost of updating hardware and
 software by replacing a portion of
 obsolete equipment annually. Annual
 equipment replacement cost would be
 around $20,000. But in the first year
 of setting up a full USERRA office,
 there will be additional non-recurring
 equipment expenditures of $32,000......
                                         -------------------------------
TOTAL...................................      $2,583,000         100.00%
------------------------------------------------------------------------


    Chairman Akaka. Thank you very much, Mr. Byrne.
    I have a question for both Mr. Ciccolella and Mr. Byrne, 
and it is for DOL and OSC. I am deeply concerned that 
individuals who are being sent to battle by the Federal 
Government are put in the position of having to do battle with 
the same government in order to regain their jobs when they 
return home. In your experience, can you think of any reason 
that the Federal Government as an employer would have any 
problems with complying with the law in this regard? Is it a 
matter of complexity, a matter of budget, a matter of 
personnel, or is there another reason? Mr. Ciccolella?
    Mr. Ciccolella. Senator, there should be no reason ever 
where a servicemember goes off to duty and comes back to their 
Federal agency and doesn't get their job back. That is not what 
usually happens.
    The cases today, USERRA cases, are very complex. It is not 
like there may be one issue in a USERRA case. In many 
situations, there are multiple issues. A lot of times, what you 
find with the Federal manager is that they don't understand all 
the things that properly restore an individual to his or her 
duty position. They don't understand the escalator principle, 
that when you leave, you are on an escalator, and if you are on 
Step 5 at the escalator when you leave and you would have been 
at Step 7, then when you come back, you have to be put into 
Step 7. If that requires training or anything else, the Federal 
manager, they have got to figure that out, how to do it.
    The cases are very complex. About half the cases that we do 
in the Federal Government are where the Federal hiring manager 
just doesn't understand the law or the OPM regulations that 
spell out how to implement the law. So that is really what we 
are seeing more often than a servicemember who is just 
terminated, because that really doesn't happen very often and 
there is a safety catch in this, and that is if that Federal 
agency is unable to place that individual back in his or her 
job, then it becomes the responsibility of the Office of 
Personnel Management to place that individual.
    So the Federal Government has been pretty good as a model 
employer. They do a lot of things for our servicemembers that 
the private sector doesn't do. For example, when a 
servicemember leaves on active duty, goes on active duty, most 
Federal agencies continue that Federal health benefit. That is 
pretty expensive. Private employers don't do that. And they not 
only pay the employer's share of the health benefit, they pay 
the employee's share. So servicemembers in most cases that get 
the TRICARE military benefit also get the health care that they 
had so there is no loss of coverage. Also, you can serve your 
probation period on active duty. That never happens in the 
private sector.
    So the Federal Government has done a reasonably decent job 
of being a model employer, but as I said, there are issues, 
there are problems. I believe a lot of the problems are because 
of the complexity of the issues and the multiple issues.
    And here is the other thing. It is not like these 
servicemembers are going to active duty for a year once. In 
many cases, these are multiple deployments and the frequency of 
those deployments, maybe in a 5-year period, some of our 
Federal employees have been gone for 2\1/2\ or 3 years on 
active duty and that is hard. That is hard for Federal managers 
to manage. But that is also the law and that is why you have us 
and that is why you have Special Counsel, to make sure that 
they obey the law.
    I think I had better stop there. I could go on for a long 
time, but I think I had better just stop there.
    Chairman Akaka. Mr. Byrne?
    Mr. Byrne. Thank you, Senator, for that question. I agree 
with most everything that Mr. Ciccolella said. I would like to 
emphasize the whole awareness piece, which I think was sort of 
the core of your question, is that most of the cases that have 
come forward to us are a lack of awareness on the managers and 
sort of the H.R. departments within Federal agencies. And so I 
can speak on behalf of OSC that even during the demonstration 
project--and I am sure DOL has an outreach program, too, I am 
just not versed on it--but even though it has just been a 
demonstration project for us, we have gone out and done 
extensive outreach, presentations to various agencies, the FDR 
Conference on Federal Employment Law just a couple months ago 
out in San Francisco where we put on a presentation to hundreds 
and hundreds of Federal managers and H.R. personnel.
    And what we plan on doing if we receive full jurisdiction 
of USERRA is to incorporate a certification process, which we 
do with other aspects of our office, the Hatch Act and the 
prohibited personnel practices, where we train up an agency to 
a certain level and they become certified, which is a 
requirement that they should do. And I submit probably Labor 
has something very similar. But we have postured to do all 
that, and I think awareness is key.
    I think this would be a good time to maybe put in the fact 
that hasn't been brought out is that the awareness is the 
appearance that employers in the government have been innocent, 
just not being aware. I don't believe that we have run into any 
cases yet where an employer has willfully discriminated against 
a veteran and fired them, or intentionally said, ``I am tired 
of them being deployed. I am going to hold them back in the 
promotion cycle.'' But, I pass on to this Committee that we 
don't have any disciplinary action that we can take against an 
employer at this time and I would ask the Committee to consider 
that as they look at this legislation.
    Chairman Akaka. Thank you. We will have a second round. May 
I call now on our Ranking Member for his questions.
    Senator Burr. Thank you, Mr. Chairman. I want to ask 
unanimous consent for additional questions to be in writing to 
the witnesses because I can assure you I am not going to have 
ample time with one or two rounds, I think, to sort this out in 
my own mind. I actually spent several hours going through the 
testimony and my thoughts last night and thought I understood 
this. I have learned in a short period this morning that I am 
more confused than I ever dreamed that I would be, and I am 
going to warn you, Chick, that I am going to come back to you 
because you said it is more difficult to do these 
investigations and I am going to ask you to walk me through a 
typical one.
    This demonstration project is focused on Federal agencies, 
and I sit here almost amazed that we have got these Federal 
guidelines and Federal agencies--I think one of you used 
``unaware,'' that an H.R. person doesn't fully understand 
exactly what the law says as it relates to this population of 
people. One, it makes me wonder who in the hell hired them. 
What qualifications did they have to serve in the capacity that 
they are in? If anybody ought to get this right, it ought to be 
the Federal Government, and if I were a private sector employer 
today and looked at the results within the Federal Government, 
I would say, why the hell are you coming after me? Why don't 
you clean up your own house first?
    Now, we have gone through a Government Accountability 
Office study where, for the first time, and I am perplexed at 
it to some degree, that the Government Accountability Office 
couldn't come in and distinguish black and white. There was a 
report that had a tremendous amount of gray and the reason was 
the inability to sort data or the inability to find the data 
that is needed to make the determination.
    I would love for both of you to share candidly with the 
Members of this Committee, how can Federal agencies butcher 
this so bad and force you to go through a lengthy process, and 
Chick specifically I will throw the first question to you. 
After a claimant requests referral to Office of Special 
Counsel, there are two additional layers of process that the 
Department of Labor goes through before the referral is made. 
Why and what purpose do those two layers serve?
    Mr. Ciccolella. I understand, Senator. It is a good 
question because the issue is why we go through that 
bureaucracy.
    First, I would just like to say I probably shouldn't 
comment on who we hire in the Federal Government and what the 
qualifications are for those people in the Federal Government. 
I know there is some disappointment in the way some people 
behave in the Federal Government. I won't comment, sir, on 
that.
    Senator Burr. We have that problem, too.
    Mr. Ciccolella. Yes. Well, everybody does, I guess.
    Can I just say, this is not--I understand where you are 
coming from, Senator. I really do. USERRA is a tough law. We 
enforce about 189 laws in the Department of Labor. This is the 
most employee-friendly law there is on the books. It leans 
toward the veteran, as well it should, because servicemembers 
should never be penalized for their military service. And that 
is why, since the 1940's, there has always been a law in place 
to make sure that servicemembers do get back their jobs.
    I agree with you. Investigations take long enough, because 
you have got to gather the evidence and you have got to 
confront the Federal hiring manager. But then if we find that 
the case has merit and we decide we are going to buck it over 
to the Counsel's Office so that they can also investigate. 
Well, it has to go through a Regional Administrator. He looks 
at it from the point of view, ``is it correct,'' and that is a 
pretty good check. It only takes a couple of days, maybe, at 
most.
    But then it goes through our Solicitor. Labor has a lot of 
people up there in the Solicitor's Office. Is that important? 
It is important. It is important to the Counsel's Office and it 
is important to us because we want to make sure that the law 
has been properly interpreted. And so when we send a case over 
to the Special Counsel's Office, that process takes place.
    I am not an attorney, so I don't know all the things about 
what they look at, but I know the law pretty well. When we do 
send it over to Special Counsel, they are going to take a look 
at it. They do a very good job of reviewing it and they will 
also do an investigation.
    Now, there is a down side to that and I couldn't agree 
more, because that is bureaucracy at work, and it takes a 
little bit of time. But there is sometimes an unintended 
advantage when that process takes place, because once it goes 
to a lawyer in our office, or if it goes over to Special 
Counsel, I can guarantee you that there is more attention paid 
to that complaint by the Federal hiring manager. So a lot of 
times, just having it up at our Solicitor's Office or having it 
over with Jim's folks over there at OSC, that case may be 
resolved en route to referral.
    So that is a long-winded answer, but----
    Senator Burr. Well, let me----
    Mr. Ciccolella [continuing]. It is sort of bureaucratic. 
But, if this doesn't happen, you know, ``wham, bam.'' There is 
a process. I hate to say it, but you know, it has to work that 
way.
    Senator Burr. I want to commend you because I think you are 
trying extremely hard to sort this out, and I agree with you, 
it is extremely difficult. As is evidenced, it is becoming more 
difficult by the minute for me.
    Mr. Ciccolella. Yes, sir.
    Senator Burr. I want to give Jim an opportunity to respond 
to my point, but I also want to ask you, if the Federal hiring 
managers understood this, how much of what you are doing would 
go away?
    Mr. Ciccolella. Probably a lot more of it. I think you are 
always going to have some situations. Let us face it, if an 
individual is gone 3 years out of 5 years in a Federal agency, 
it is tough. I mean, my Chief of Staff went over to Iraq for a 
year. That is tough. You just gut it out. You put somebody else 
in the job temporarily.
    The outreach and education that Jim talked about is 
extremely important. One of the things we did 2 years ago is we 
have this Veterans Hiring Initiative which focuses on trying to 
hire disabled veterans, and there are streamlined authorities 
for doing that, direct appointments. Most of the Federal 
agencies don't use them. So we talked to about 40 Federal 
agencies in person and then we talked to a bunch of others 
through various messaging. Now we are doing that in the Federal 
regions. And in those Veteran Hiring Initiatives Briefings, 
what we do is we make sure that we talk about USERRA.
    The other thing that is really good today is that we brief, 
or the Defense Department and the Staff Judge Advocates in the 
military brief, every servicemember when they are mobilized and 
when they are demobilized, which is more important, they are 
briefed on USERRA. So most servicemembers know how to make a 
complaint.
    Thanks to the good work that the Labor Department has done 
in the private sector and in the Federal Government, thanks to 
what OSC has done under Scott Bloch, because they have got a 
real interest in enforcing USERRA, and that is something to be 
absolutely admired and respected, they do a very good job, the 
employers do understand the law a lot better. But as I said, 
some of these cases are complex and it may not be just about 
the reinstatement. It may be how do we restore that 
servicemember's pension benefits, or how do we restore the 
health care coverage? You know, there are gaps in restoring 
health care coverage after a servicemember comes back. We are 
trying to fix that now with a legislative fix, because they can 
continue their TRICARE when they come back and they may not 
reinstate their health care coverage right away. There is a 
hole there.
    So, you know, these are kind of complex situations and I do 
agree with you. I wish we could do it faster, and we should do 
it faster. We should eliminate as much bureaucracy if we can, 
and I believe in that. I believe in busting bureaucracy that 
doesn't work really well. But there is a process and I think 
for legal purposes, especially if we have to send a case over 
to the Counsel, we have got to follow those procedures, sir.
    Senator Burr. Jim?
    Mr. Byrne. Thank you, Senator. I think Labor would agree 
with us that we would all like to outreach or educate ourselves 
out of a job where we don't have to face these. I think back to 
our outreach programs that we have with the Hatch Act, 
extensive programs, prohibited personnel practices, extensive 
outreach programs. But we are still in business. There are 
still plenty of violations and allegations that come forward.
    But I think we can all do a better job in educating the 
managers in HR, because I am frustrated that they don't 
understand this basic principle, not only not understanding the 
law, but looking at it from just doing the right thing, which I 
think should be part of a test in an H.R. department or an 
executive or a manager. So I guess that is a little bit of my 
opinion on the side, not related to the law.
    But you had talked about some of the processings of the 
cases as they come in. If you are interested in some details, 
Mr. Boulay does this for a living day in and day out. He has 
his hands on every single case that comes into OSC. I guess 
that sort of leads into the fact that we are a small agency, 
110 personnel, four field offices around the country. USERRA 
has nine personnel, seven attorneys, two investigators, and so 
we are lean, very lean and very efficient at what we do. And so 
we have that luxury of not having a big bureaucracy and so I 
think that really plays to our advantage in that regard.
    Mr. Ciccolella also talked about the complexity of some of 
the cases, and I think Mr. Boulay might be able to speak to 
that, also. A lot of times, the cases have prohibited personnel 
practices incorporated into them. So from our perspective at 
OSC, when a case comes in, it is not necessarily just a USERRA 
case. There could be a retaliation case mixed in or some other 
type of discrimination mixed in which is more difficult to 
investigate than a straightforward USERRA claim. So I want to 
just throw that in there, that it is complicated. To even 
confuse everybody even more, there are more matters.
    We are just really fortunate in our office, and I am hoping 
Mr. Boulay gets the chance to speak here, we have experts in 
this area, in Federal employment law. They do this for a 
living, prohibited personnel practices, Hatch Act, 
whistleblower disclosures. And so for us to do USERRA claims is 
a natural.
    Senator Burr. If the Chairman would indulge and my 
colleague, Senator Tester, could we hear from Mr. Boulay?
    Chairman Akaka. [Nodding affirmatively.]
    Mr. Boulay. Thank you. Just to pick up on what Mr. 
Ciccolella and Mr. Byrne said, I would agree. Generally 
speaking, I think what we see is that Federal agencies, Federal 
managers have a general understanding of USERRA but don't know 
the full extent of what is required, and that is where these 
cases become more challenging and that is why a big part of our 
approach is even if a case may not have merit for the 
individual, that we work very hard to educate the Federal 
managers and the H.R. specialists in the full extent of their 
responsibilities both under the USERRA statute and under the 
OPM regulations that have some additional requirements, such as 
making sure there is a mechanism to consider servicemembers for 
promotions while they are absent due to military service.
    Because our approach is centralized at OSC, we have the 
ability to spot where cases come in and go out through me, 
through the USERRA Unit Chief, we are able to spot trends and 
issues that come up. In fact, two have come up in particular, 
and I think Mr. Ciccolella referenced this, in agencies' 
obligations with regard to injured servicemembers, the steps 
they need to take up to and including getting OPM to provide 
placement assistance if they can't find a job for the 
servicemember, and also advance notice requirements for 
military leave. We have standard letters that we provide to 
agencies and to H.R. specialists that detail these issues.
    As Mr. Byrne alluded to, under the prohibited personnel 
practices, there is a requirement that heads of agencies 
educate their employees about civil service laws, rules, and 
regulations and that they comply with that, and we have a 
certification program that they can become certified that they 
are complying with that provision and we would like to extend 
that to USERRA if we get the work, so that we would have an 
agency certify to us that they have provided training, posted 
information and things of that nature for USERRA to ensure that 
they comply.
    Now, as far as just to make it clear, cases under the 
referral process, which is nondemonstration project cases, 
there is this process whereby VETS investigates and then has 
several stages of review where they send it from their local 
office to their regional office and then to the regional 
solicitor and then finally to OSC if the claimant requests 
that. Now, under the demonstration project, those steps are 
eliminated because OSC gets the case from the beginning, we 
investigate it, we decide whether to prosecute. We have that 
authority. When we approach agencies in a meritorious case, 
they know that there is a credible threat of litigation.
    And as far as the need or the benefit added at VETS and 
Department of Labor to do these additional reviews, that is 
built into our process under the demonstration project. We have 
supervisory and legal review throughout the process, from the 
beginning of the end of the case. So there is no need, because 
we are centralized, to transfer it between offices. So I just 
want to point out that difference.
    And as far as cases that do get referred, while we do 
appreciate getting a summary or a memorandum of referral from 
the Department of Labor, we do a de novo review. We do not rely 
on those summaries to make our decision. It gives us a brief 
overview of the case, gets us up to speed, but we are 
evaluating the case ourselves fully, and we have had some 
instances where we have had disagreements, but we think as 
experts in the Federal sector that we should be making the 
final decision and doing, as I said, a de novo full review of 
every case.
    I just hope that is helpful to your questions. Thank you.
    Chairman Akaka. Thank you very much, Senator Burr.
    Senator Tester?
    Senator Tester. Mr. Chairman, thank you very much. I feel 
the same way Senator Burr does at this point in time. I have 
got so many questions, I don't know if we have time to answer 
them all today, so we will start at the beginning.
    The process that I heard was a claim goes to DOL, then it 
goes to the Solicitor, and then it goes to OSC, is that fairly 
correct?
    Mr. Ciccolella. The investigative process--that would be 
the chain, yes.
    Senator Tester. Does it occur anytime where it goes right 
straight to OSC, where the first two are eliminated? That does 
occur? It just depends on what the claimant wants?
    Mr. Ciccolella. Yes. Under the demonstration, half the 
cases go directly, and if the case involves, or we suspect it 
involves, a prohibited personnel practice, one of the 12 PPPs, 
then we send it to Special Counsel immediately.
    Senator Tester. So, it still goes through your office, 
though?
    Mr. Ciccolella. Yes, sir.
    Senator Tester. So they all go through your office 
initially?
    Mr. Ciccolella. Some come direct to OSC through their 
outreach, but most cases, I believe it is fair to say, come 
through the Veterans' Employment and Training Service.
    Senator Tester. That is cool. Mr. Boulay said that you, if 
I heard you right, you don't use the previous reviews done by 
the DOL. You use your own?
    Mr. Boulay. That is in non-demonstration project cases--
cases that are referred from DOL to us--they provide a 
memorandum of referral after it goes through their multi-stage 
process. We do review those and use those as sort of a quick 
overview of the case, but we make our own decision and do our 
own review.
    Senator Tester. Right. So you kind of read through them and 
set them to the side and do your own thing on that? I am not 
being critical. I just want to know the process.
    Mr. Boulay. Yes. I mean, we do a full review of the case 
and the case file, and under the demonstration project, though, 
that process is not necessary because we get the cases 
directly.
    Senator Tester. OK. Training--Mr. Boulay, you talked a 
little bit about the certification process. Does the OSC have a 
training regimen that they are doing at this point in time? I 
think that Mr. Byrne also talked about training, some training 
stuff. Do you guys have a training regimen that you are 
offering to agencies, or is it up to the agency to get a hold 
of you? How is it done? Either one can answer.
    Mr. Boulay. If I could just go ahead, please. We have a 
formal outreach program, a training program, PowerPoint 
presentation----
    Senator Tester. Who initiates it?
    Mr. Boulay. It is initiated by--in individual cases we 
often actually request it. We offer it in most cases based on, 
you know, if the agency seems to have a good handle on USERRA 
and there are no violations, we would not necessarily offer it. 
But even in a case where there was no individual liability, we 
offer that program to agencies.
    Senator Tester. So the program offering happens most 
commonly when there is a problem with----
    Mr. Boulay. When there is a complaint, yes.
    Senator Tester. When there is a complaint. DOL, is it the 
same? Do you guys have a training regimen that you offer in the 
Department for Federal agencies?
    Mr. Ciccolella. As I mentioned, 2 years ago we had our 
Disabled Veteran Hiring Initiative to go out physically and 
talk to 40 agencies. We are now in the ten Federal regions 
talking to the Regional Executive Councils, so we will probably 
start that again on a cycle with the Federal agencies.
    Senator Tester. OK. Mr. Byrne, you talked about having nine 
people dedicated to USERRA in the OSC, is that correct?
    Mr. Byrne. Yes, sir, that is correct.
    Senator Tester. And where is your office located?
    Mr. Byrne. At 17th and M Street here in the District.
    Senator Tester. So it is in D.C.?
    Mr. Byrne. That is the headquarters, and we have three 
field offices that we actually have trained and utilize for 
some of our cases.
    Senator Tester. OK.
    Mr. Byrne. But they all go through centralized 
headquarters.
    Senator Tester. In those field offices, are there 
additional personnel, or is that part of the nine?
    Mr. Byrne. No, that is not part of the nine. That is 
additional personnel, correct.
    Senator Tester. OK. So how many total personnel do you have 
in the OSC dedicated to USERRA?
    Mr. Byrne. Dedicated is nine----
    Senator Tester. FTE.
    Mr. Byrne. FTE would be nine, but depending on the surge 
and the number of cases, we push them out to the field offices 
under the supervision of Mr. Boulay. And we have four field 
offices with an average of about eight personnel. So that is 
our set core--nine--but, we can surge way beyond that. So if 
you ask for an FTE, I could guess and say we are 13 or 14.
    Senator Tester. How about the DOL? How many people do you 
have dedicated to USERRA? You said you had, what, a hundred 
investigators, is that correct, in every State and Territory?
    Mr. Ciccolella. Correct. That organization has 250 
employees. About 115 are State Directors of Veterans' 
Employment and Training or their assistant directors. 115 are 
trained USERRA investigators located in the 52 States and 
Territories.
    Senator Tester. That is their job?
    Mr. Ciccolella. That is part of their job. That is not the 
only job they have.
    Senator Tester. OK. How many claims do you receive per year 
at DOL?
    Mr. Ciccolella. Put it in perspective for you?
    Senator Tester. Sure.
    Mr. Ciccolella. Before----
    Senator Tester. Let me back up my question. How many 
Federal claims do you receive per year, not the private claims, 
but the Federal claims?
    Mr. Ciccolella. There are approximately 200, and it differs 
each year, about 200 complaints with the Federal Government 
each year.
    Senator Tester. And that is probably going to go up, as 
somebody said, with the potential for bringing the troops home.
    OSC, how many do you get that are not referred through the 
DOL first?
    Mr. Byrne. Approximately 140 to 160, of which some of those 
also have the prohibited personnel practices mixed in with 
them.
    Senator Tester. OK. But the initiation is USERRA claims?
    Mr. Byrne. Correct.
    Senator Tester. OK. Mr. Ciccolella, the previous witness 
said that the main problem that the GAO had was bad data, and I 
hope I don't put words in his mouth, and the bad data was a 
direct response to an inadequate manual. And I said, whose 
responsibility was the USERRA manual and he said the DOL. Are 
you doing anything to fix that? That might be the second 
question. The first question is, do you have the same opinion 
as far as what makes databad? Is it the USERRA manual, and are 
you doing anything to fix it?
    Mr. Ciccolella. I have the same opinion that GAO does.
    I thought their review was very useful.
    Senator Tester. OK.
    Mr. Ciccolella. The thing that has to be done is that more 
attention by our investigators has to be paid to recording the 
closure date of the case and making certain that the 
administration and procedural aspects of the case are properly 
attended to. I would just like to say for the record, that 
doesn't necessarily speak to the quality of the case of those 
investigations.
    Senator Tester. OK. Just a couple of side comments that--I 
have one more question for DOL. How many private cases, USERRA 
claims, do you guys deal with a year?
    Mr. Ciccolella. Sir, we are doing about 1,400 total cases a 
year. Of those, last year, 12 percent were Federal cases.
    Senator Tester. OK. So you are doing 1,400 a year total, 12 
percent--OK. I have got you.
    Mr. Ciccolella. Now, could I just clarify, sir----
    Senator Tester. Yes, go ahead.
    Mr. Ciccolella [continuing]. Because Jim is doing the same 
thing. You know, we get many more inquiries and provide many 
more assistance, technical assistance things to people, and you 
have to remember also that the Department of Defense has an 
agency that does informal mediation.
    Senator Tester. Yes.
    Mr. Ciccolella. They do a lot of claims. So there are a lot 
more claims than just the 1,400.
    Senator Tester. I have got you. So let us revert back a 
little bit. You said you have got somewhere between 160 and 200 
Federal claims, if it is 12 percent of 1,400.
    Mr. Ciccolella. That would be about right.
    Senator Tester. And what percentage of those do you pass on 
to OSC?
    Mr. Ciccolella. Well, under the demonstration, everyone 
with an odd Social Security number goes to OSC, so roughly 50 
percent of those. So last year, it was 96, and this year so far 
it has been seven, and the total in the demonstration, I think 
somebody said 269, but I think it is 289.
    Senator Tester. OK. All right. Thank you very much. I 
appreciate your patience with the questions. I appreciate your 
testimony. Thank you.
    Chairman Akaka. Thank you very much, Senator Tester.
    As you know, Senator Tester has many more questions to ask. 
What had intrigued me is a possible solution is the statement 
that was made by Mr. Boulay, who said that there was no need to 
transfer cases to another agency. It appears that there is a 
process, there are investigations, there are interpretations 
and decisions made and all of this takes time. And for it to go 
through three agencies takes all the time. So we really need to 
look at this. You have been helpful in trying to clarify this.
    Instead of asking a second round of questions, I ask 
Senator Tester whether he would agree that we would submit 
further questions in writing to you to answer. I have many 
questions to ask. Senator Tester?
    Senator Tester. I would. I would just like to make a quick 
comment, if I may, Mr. Chairman----
    Chairman Akaka. Yes.
    Senator Tester [continuing]. And that is that it appears to 
me preventive medicine here would be much better than what we 
are doing. We can have our own personal opinion, so I will just 
tell you mine. I think the Department of Labor ought to figure 
out a regimen for training the Federal agencies and make sure 
those agencies know what the heck is going on. And I think that 
you have the wherewithal to do that and I think you do the best 
job at it, quite frankly. I think it ought to be a requirement. 
Mr. Boulay talked about certifying the agencies to be able to 
comply with USERRA. I think you could do that.
    You know and I know it is complicated, and you guys are on 
the ground dealing with it on a daily basis and I am not, but 
it doesn't appear to me that it has to be this complicated. It 
is pretty cut and dried as far as I am concerned. I think if 
you know the rules going in, your human resource director ought 
to be able to deal with it in a way that makes sense for the 
agency.
    I can't help to think that a lot of the problems here are 
with people who, quite honestly, they would just as soon see go 
out the door than move up the ladder like what is supposed to 
happen in USERRA. But I think training is critically important 
and we will do that.
    Thank you, Mr. Chairman.
    Chairman Akaka. Thank you very much, Senator Tester.
    I want to thank this panel for your testimonies and your 
responses, as well. I look forward to continuing to work with 
you. We will send you our submitted questions for the record 
and look forward to your responses.
    Mr. Ciccolella. Mr. Chairman, could I say one thing before 
we end here? I know you all appreciate this--that we do have 
two agencies doing these investigations, so you have two 
standards in place. So I want to say for the record that it is 
not about turf with me. My focus is on the best service for 
veterans. I think if GAO is going to do a review they look at, 
hopefully, the quality of the cases, so we are better informed 
in terms of making our decision. Congress and this Committee, 
in particular, intended that the procedures for investigating 
USERRA cases would be the same procedures that are used in 
investigating veterans' preference. They said that when the 
Veterans' Employment Opportunity Act was passed, and it is in 
your report language.
    So I would ask that as the GAO takes a look at who should 
do these Federal sector USERRA cases, that whoever does them 
should probably also do the veterans' preference cases. Because 
then your procedures are consistent, which is what Congress 
intended in their report language.
    Chairman Akaka. Thank you. Mr. Byrne, do you have any 
closing remarks?
    Mr. Byrne. Yes, sir. I would actually agree with what he 
just said.
    Chairman Akaka. Mr. Boulay, do you have any closing 
remarks?
    Mr. Boulay. Thank you again for the opportunity. I would 
just add, on veterans' preference cases, that OSC currently 
enforces disciplinary action for veterans' preference 
violations. So, we do have that expertise, as well, and we 
would be ready, willing, and able to take that on in addition 
to USERRA. Thank you.
    Chairman Akaka. Thank you very much, panel two. Thank you.
    Mr. Byrne. Thank you, Mr. Chairman.
    Chairman Akaka. Now I would like to call forward our third 
and final witness. Matt Tully comes to us from Albany, New York 
on his way to his second deployment in the Middle East. He is 
currently a Major in the New York National Guard. In 2005, Mr. 
Tully was deployed to Iraq with the 42nd Infantry Division 
based in Tikrit and at Camp Victory in Baghdad. Mr. Tully has 
been awarded the Vice Chief of Staff of the Army Award for 
Excellence, Iraqi Campaign Medal, Global War on Terrorism 
Service Medal, Armed Forces Reserve Medal with mobilization 
device, and the National Defense Service Medal. Mr. Tully has 
firsthand knowledge of USERRA issues, both as a returning 
veteran and also as an attorney.
    Mr. Tully, I welcome you and your wife, Kelly, and your 9-
month-old son, Kevin, to this hearing. I thank you for 
traveling all this way to be here today and for sharing your 
story and thoughts with us this morning. I also want to thank 
both you and your family for the sacrifices you are making for 
our Country. I know it must be difficult for all of you at this 
time. So will you begin with your testimony.

                 STATEMENT OF MATTHEW B. TULLY,
              TULLY, RINCKEY AND ASSOCIATES, PLLC

    Mr. Tully. Thank you, Mr. Chairman, and thank you, Senator, 
for allowing me to be here today to discuss USERRA. I gave a 
detailed written report to this Committee that outlines my 
experiences as a victim of USERRA discrimination at the hands 
of the Bureau of Prisons several times from 1999 to the 
present. As this Committee is aware, I have received a 
substantial judgment in my favor because of the discrimination 
that I was subjected to.
    The Office of Special Counsel had noted that they haven't 
received any complaints pertaining to a willful violation of 
USERRA. My case is crystal clear. My supervisors testified 
under oath that they knew about USERRA and they decided to 
violate it because of budgetary issues. They were concerned 
that my departure was going to force the jail to require 
overtime and that they didn't like that.
    In addition, I represent a U.S. Postal Service employee by 
the name of Richard Erickson. He is a Special Forces Sergeant 
Major in the Florida National Guard. He deployed to Afghanistan 
with the Florida National Guard and received a letter from the 
Postal Service stating that for the efficiency of the Service, 
the Postal Service was firing him from his position because the 
amount of time that he had taken was in excess of 5 years. 
Unfortunately for the Postal Service, there are a whole bunch 
of exceptions to the 5-year rule in USERRA and call-ups to 
Afghanistan and Iraq are excluded. That matter is currently in 
litigation.
    There are numerous other cases that I can cite you of 
intentional violations by Federal employees of USERRA, and as 
the statistics that were in my written report show, my law firm 
handles many more USERRA violations than DOL-VETS and the 
Office of Special Counsel combined. During the GAO reported 
time period, we handled 1,802 complaints. The Office of Special 
Counsel handled approximately 269. The Department of Labor 
handled approximately 166.
    What I would point out, of that 1,802, we had a 73 
corrective percentage rate. So what that means is out of that 
1,802, 73 percent of those veterans got what they were asking 
for, versus the OSC had approximately a 25 percent rate. The 
DOL report said that only 7 percent was sent to prosecution, so 
it is unclear how many actually got what they were deserving.
    I believe that private attorneys offer the wham-bam fix 
here. I believe attorneys can turn these cases around in a 
matter of weeks. My law firm, from the time that we get a 
complaint from a servicemember, files court proceedings, 
whether it is in State court, Federal District Court, or before 
the Merit Systems Protection Board for Federal employees, 
within 3 weeks, versus the other agencies, as the GAO report 
talks about, just the investigative stage takes months. We 
actually are in court within 3 weeks.
    We take the overwhelming majority of our USERRA cases for 
free because USERRA allows for attorney's fees to be awarded on 
top of any damages awarded to the servicemember. So if I am 
able to get Mr. Erickson his job back, he gets the back pay and 
benefits he is entitled to and then attorney's fees are added 
on top of that. So the servicemember is not harmed in any way, 
shape, or form by having a private attorney.
    As a matter of fact, the servicemember is helped when they 
have severe cases, such as they are suspended, they are 
demoted, they are fired, and they need immediate action and 
they can't wait for a year for DOL to investigate the case, 
only then to turn it over to OSC for prosecution of the case. 
They will come to us, we will file the case within 3 weeks. 
With the Merit Systems Protection Board, the cases are 
adjudicated within 120 days. So we could get the servicemember 
back into his job generally within 120 days, and that is the 
big selling point for our firm. That is one of the reasons why 
we have 1,802 clients during this time period and the other 
agencies combined have under 400.
    We have built a reputation around helping servicemembers. 
We have built this reputation around not charging 
servicemembers. In some cases, we do charge servicemembers who 
have farflung USERRA cases that we don't think are winnable and 
we tell them, go to DOL, go to OSC. If they are insistent to 
keep our firm, we do charge a little bit of an up-front 
retainer because we only get our attorney's fees paid by a 
Federal agency if we are successful. So the overwhelming 
majority of our cases, 99 percent, we don't charge our clients 
a penny, and it is only that 1 percent where the case is 
borderline that we ask for some type of up-front money, 
goodwill money.
    So I think the right answer here, Mr. Chairman, is to 
change the attorney's fee provision from discretionary, which 
is what it is right now, to mandatory, so that if a 
servicemember proves their claims, they are guaranteed 
attorney's fees on top, because the private sector can do the 
job faster, better, and in a higher quality than the current 
Federal agencies have done.
    With that said, I believe the Office of Special Counsel 
during the short time period in which they had the availability 
to do USERRA cases did an outstanding job. I believe that their 
addition of Sam Wright, who is known as the Godfather of 
USERRA, the person that wrote USERRA, his addition to the 
Office of Special Counsel really shows the Office of Special 
Counsel's commitment to doing the right thing.
    The Department of Labor VETS, I haven't seen any changes. 
As a matter of fact, I would point out to you, Mr. Chairman, 
that we have represented several DOL-VETS employees who have 
alleged USERRA discrimination by DOL-VETS and those cases have 
been resolved under settlement agreements with confidentiality 
clauses, but the names and that type of information is 
available through the Merit Systems Protection Board. But I 
just find it astonishing when there were discussions here about 
training requirements that there would be allegations of USERRA 
violations with DOL-VETS.
    That concludes my statement and I am available for any 
questions that any Member on the Committee has.
    [The prepared statement of Mr. Tully follows:]
  Prepared Statement of Mathew B. Tully, Tully, Rinckey & Associates, 
                                  PLLC
    Mr. Chairman and distinguished Members of the Committee: I am 
honored to appear before you today to speak about my experiences with 
the Department of Labor, the Office of Special Counsel and the United 
States Department of Justice in regards to enforcing rights under the 
Uniform Services Employment and Reemployment Act (USERRA). I am pleased 
to be accompanied at today's hearing by my wife, Kimberly Tully, and my 
9-month-old son, Kevin Tully.
    To provide you with some background on me: From 1991 to 1995 I was 
enrolled in the Reserve Officer Training Corp (ROTC) at Hofstra 
University with my current law partner, Greg Rinckey. In May 1995, I 
was commissioned as a Second Lieutenant in the United States Army and I 
found myself unemployed while awaiting the Officer Basic Course. I 
applied for several law enforcement positions with the Federal Bureau 
of Prisons and I was hired by them on August 20, 1995. Shortly 
thereafter in early October 1995, I was activated to attend military 
schooling and remained on active duty until approximately April 1998.
    During the entire time that I was on active duty, I was placed on 
leave without pay status under USERRA by the Bureau of Prisons. Almost 
immediately upon my return from active duty I was subjected to 
intentional violations of USERRA by my superiors because of my military 
service. The discrimination varied from receiving poor performance 
evaluations during the time period that I was actually serving in the 
military, a period of time that I should not have even been rated or 
evaluated by the Bureau of Prisons, to being publicly ridiculed for 
making the Bureau of Prisons fill my position using overtime employees.
    In late 1999 and early 2000, I filed numerous complaints with the 
Merit Systems Protection Board against the Bureau of Prisons alleging 
violations of USERRA. I believe that it is important to point out that 
I consulted with Labor Law attorneys and other members of my military 
unit that also had employer issues and I was universally told not to 
waste my time dealing with the Department of Labor and to exercise my 
rights under USERRA and file my allegations of USERRA violations 
directly with the Merit Systems Protection Board (MSPB). Very shortly 
after I had filed my claims, the Bureau of Prisons conducted an 
internal investigation and I assume that they found merit to my 
allegations as they offered me a substantial cash settlement and paid 
leave to withdraw my allegations and resign from employment with the 
agency.
    At that time I had just enrolled in law school and the large sum of 
money that the Bureau of Prisons was offering me and the extended paid 
time off was too enticing to turn down so I entered into a settlement 
agreement with the agency, which contains a confidentiality clause that 
prevents me from discussing in further detail the specifics of the 
case.
    While out on extended paid leave pursuant to the settlement 
agreement, I began looking for other employment opportunities. 
Unfortunately, with not many employment prospects on the horizon, I 
sought a vacant position at another Bureau of Prisons institution in 
August of 2000. Shortly thereafter, I was hired by Morgan Stanley to 
work as a paralegal. In late 2000, I learned that the Bureau of Prisons 
employees at the institution at which I applied had learned of my prior 
protected USERRA activities and subsequently refused to process my 
application for employment with the Bureau of Prisons.
    While I did have a position with Morgan Stanley that complimented 
my attending night school at Brooklyn Law School, I was deeply 
disturbed that I was being subjected to further retaliation by the 
Bureau of Prisons only months after they had entered into a settlement 
agreement with me, which in my opinion reflected their implicit 
acknowledgement of supervisory employees violating USERRA. As a result, 
I filed another USERRA complaint against the Department of Justice 
alleging that my application for employment was not processed in 
retaliation for my prior protected USERRA activities. That case 
continued for many years.
    In the meantime, on September 11, 2001, my office on the 65th floor 
of the World Trade Centers came under attack. After September 11th, I 
served with the New York Army National Guard at Ground Zero for many 
weeks. In May 2002, I graduated from law school and subsequently passed 
the Bar Exam and was admitted to practice before the New York State 
Courts.
    In January 2003, I sold my cooperative apartment overlooking New 
York Harbor in New York City and moved with my wife Kimberly to our ski 
condo in upstate New York. It was at that point that I opened up a law 
firm out of the back bedroom of my house. Some of my earliest clients 
were colleagues from the Bureau of Prisons who asked me to represent 
them in employment matters to include: allegations of EEO violations, 
whistle blowing violations and disciplinary actions.
    In February 2004, my current law partner and long time friend, Greg 
Rinckey, returned from active duty and we entered into a law 
partnership together. Throughout 2004, the number of cases that we 
received from Federal employees dramatically increased to the point 
where we had to hire an associate and then several more associates to 
accommodate this increase in clients. In June of 2005, I received 
orders to report to Iraq with the 42nd Infantry Division.
    On July 30, 2007, I reported to Fort Drum, New York for deployment 
training and I was subsequently deployed to Iraq and served as the 
Division Chief of Operations. This deployment, as determined by the 
United States Small Business Administration, resulted in my law firm 
suffering financial losses in the amount of $173,000.00. The Small 
Business Administration offered to provide my firm with a Disaster 
Assistance Loan for that amount to help my firm recover from my 
deployment. In addition to the financial suffering that my firm and my 
family experienced because of my deployment, I was also injured and 
have subsequently been rated by the United States Department of 
Veterans Affairs to be 60 percent disabled.
    On March 21, 2007, nearly 7 years after I originally filed my 
complaint with the MSPB alleging that the Bureau of Prisons retaliated 
against me by failing to process my application for the position of 
Correctional Officer at the Metropolitan Detention Center in Brooklyn 
New York, the New York Regional Office of the MSPB awarded me nearly 
$300,000.00 in back pay. The Board also ordered the Bureau of Prisons 
to appoint me, effective August 22, 2002, to the position of 
Correctional Officer. The initial decision of the Board became final on 
April 5th, 2007, when neither I nor the Agency appealed. As of this 
date, The Bureau of Prisons has not reinstated me to the position of 
Correctional Officer, nor has it timely paid me the back pay, interest, 
and accrued leave that I am owed. In fact, tomorrow on November 1, 
2007, I have been asked by the Bureau of Prisons to undergo a medical 
examination at their institution in Otisville, New York to determine if 
I am medically fit to perform the duties of Correctional Officer or 
another position within the Bureau of Prisons. I believe as evidenced 
by the MSPB's decision in my favor awarding me substantial back pay as 
well as the original settlement agreement with the Bureau of Prisons in 
2000 that all of my allegations of misconduct by Department of Justice 
officials have been vindicated.
    I would point out that Senator Specter, at my request, asked the 
Bureau of Prisons if any employee was ever disciplined for violating my 
rights under USERRA and Senator Specter's office was informed by the 
Bureau of Prisons that despite the sworn admissions by Bureau of 
Prisons employees nobody was disciplined for any of the discrimination 
or retaliation that I was subjected to. Due to my personal experiences 
as a victim of USERRA discrimination as well as being a member of the 
New York Army National Guard and an Iraqi War Veteran, I have over the 
past several years built a considerable law practice, primarily 
representing others who have been victimized by their employers in 
violation of USERRA.
            from february 8th, 2005 thru december 30th, 2006
    According to the U.S. Government Accountability Office, report 
number GAO-07-907, during the time period February 8th, 2005 to 
September 30th, 2006 the Department of Labor investigated 166 
allegations of USERRA discrimination by Federal employees. During that 
same time period, the Office of Special Counsel investigated 269 
allegations for USERRA discrimination. I would point out that during 
that time period my law firm not only investigated but prosecuted 
before the MSPB, a total of 1,802 cases. That represents more than 4 
times the combined number of cases that the Department of Labor and the 
Office of Special Counsel handled during the same time period.
    I would point out that on page 9 of the GAO report it listed 189 
employees with the Department of Labor who are responsible for 
investigating USERRA complaints, on page 16 of the GAO report the 
Department of Labor said only about 7 percent of those 166 cases were 
referred for prosecution, that means only approximately 12 cases during 
the time period relevant to the GAO report was a DOL case actually 
prosecuted before the MSPB. By contrast, in a July 6th, 2007 response 
to the GAO report the Office of Special Counsel was proud of its 25 
percent corrective rate, which translates into 67 times during the 
relevant time period that a Federal employee received corrective action 
from the Office of Special Counsel.
    I find these numbers to be astonishing, given my law firms 
experience with helping Federal employees win their USERRA claims 
before the MSPB. I would point out that of the 1,802 cases, that my 
firm investigated during the relevant time period our clients received 
the remedy that they were seeking in approximately 73 percent of the 
cases. That translates into a success rate nearly 3 times that of the 
Office of Special Counsel and at the very least 10 times better than 
the Department of Labor.
    I would respectively point out that the GAO report referenced above 
does not provide any of the Committees that it reported to with the 
proper context of how a claim is investigated. Specifically, I would 
note that on page 38 of the report it admits that it did not contact 
any private law firm or attorneys that specialize in USERRA litigation. 
Had it contacted myself or the handful of others who concentrate their 
practice in USERRA enforcement they would have learned that very few 
servicemembers who believe that they are the victims of USERRA 
discrimination go to the Department of Labor. In my opinion, the 
Department of Labor has built a reputation over the last 13 years of 
poor investigative work, poor use of investigative tools such as, 
issuing of subpoenas and demanding sworn testimony by employers and non 
responsive investigators in addition to outrageously long processing 
times.
    I would further point out that the GAO report incorrectly shows 
figures describing how USERRA claims are processed. I note on page 8 of 
the report that it fails to list the retention of a private attorney 
for the investigation and prosecution of claims. I believe that it is 
important to point out to the Committee that private attorneys like 
myself and others within my firm handle many more cases per year than 
the Department of Labor, the Department of Justice, and the Office of 
Special Counsel combined.
       my opinion of the three ways to process a userra complaint
    A. Department of Labor

    In my opinion the Department of Labor has proven time after time 
that they do not aggressively investigate allegations of USERRA 
discrimination or retaliation. This is evidenced by the low number of 
Reservists and National Guardsman who go to the Department of Labor for 
help. I find it obscene that the Department of Labor has 189 personnel 
assigned in various capacities to investigate USERRA violations and yet 
my firm consistently investigates more allegations of USERRA violations 
with an astronomically higher corrective rate.
    I think at this point the Members of this Committee and others on 
Capital Hill should consider abolishing this responsibility and 
shifting the resources going to DOL vets to the Department of Defense 
Employers Support of the Guard and Reserve (ESGR) who could handle all 
of the educational briefings that DOL Vets claims it does and to the 
Office of Special Counsel. In fact, as you will soon see in my 
solutions to this problem, I believe that the Federal Government over 
the next decade could save hundreds of millions of dollars by simply 
abolishing the Department of Labor's involvement in USERRA enforcement 
and mandating the award of attorney's fees and litigation costs when a 
victim successfully proves his or her case of discrimination or 
retaliation.

    B. Office of Special Counsel

    It is my opinion that the Office of Special Counsel has done a much 
better job at investigating and prosecuting violations of USERRA than 
the Department of Labor. Furthermore, it is my understanding in talking 
with several people who had their matters investigated by the Office of 
Special Counsel that they were treated in a professional and courteous 
manner. I would further point out that the Office of Special Counsel 
has taken great strides to improve its reputation, as recently as this 
month it retained Sam Wright as one of its attorneys. I consider Sam 
Wright, the Godfather of USERRA, my mentor, and my friend. I don't 
believe that there is an attorney or for that matter any person on this 
planet who knows USERRA better than Sam Wright. I have no doubts that 
if the Office of Special Counsel is allowed to continue to investigate 
and prosecute USERRA claims that their reputation will grow, and that 
their processing time will be reduced and that their success rate will 
dramatically increase.
    As you will see in my solution to the problem, I believe it is 
critical for the Office of Special Counsel to have ``Hatch Act'' like 
powers to enforce USERRA.

    C. Private Law Firms

    Currently, my law firm is the largest law firm in the country that 
handles large numbers of USERRA cases. We handle USERRA cases not only 
against the Federal Government but against states and private 
employers. Our track record of success is well documented and has 
resulted in my law firm receiving on average 45 new USERRA allegations 
per week. My firm has also signed an agreement with the American 
Federation of Government Employees (AFGE) that will make us co-counsel 
over the next 4 years on approximately 10,000 new cases of USERRA 
discrimination pursuant to the United States Court of Appeals for the 
Federal Circuit's new holding in Butterbaugh v. Department of Justice.
    So that you can compare the Department of Labor, the Office of 
Special Counsel and private law firms like mine, I would reiterate that 
despite the dramatically higher number of cases that we investigated 
during the relevant time during the GAO report we had a dramatically 
higher success rate. I believe that this should clearly indicate to 
this Committee that the way to end discrimination against members of 
the National Guard and the Reserves is to look to private attorneys and 
not to Government entities. If this Committee wants to properly protect 
today's National Guard and Reservist and ensure that USERRA is properly 
prosecuted and investigated it must not limit its research to just the 
Department of Labor and the Office of Special Counsel. It must consider 
the overwhelming success of persons who privately retain attorneys.
                              the solution
    Not only am I going to provide this Committee with my opinions, my 
observations and my thoughts but I will also provide you with common 
sense solutions that I think will achieve Congress' intent of making 
the Federal Government the model employer while also dramatically 
reducing the number of people discriminated against because of their 
military service. My solution is three fold:

    1. Make attorney's fees mandatory when a victim proves his/her 
allegations.
    2. Give USERRA teeth by allowing judges to award liquidated, 
compensatory and punitive damages.
    3. Give the Office of Special Counsel disciplinary authority like 
it has under the Hatch Act so that Federal supervisors are held 
personally accountable for their violations of USERRA.

    I believe that if this Committee does not make these three changes 
to USERRA I will be back in 5 or 10 years and the situation will remain 
the same whether it is the Department of Labor or the Office of Special 
Counsel handling the investigation of the complaints, no significant 
corrective measures will have been taken by Federal agencies, state 
employers and private employers to protect members of the military 
service, and I would especially point out that as the Global War on 
Terrorism continues the number of National Guardsman and Reservists who 
are being called to second, third and fourth tours of duty will force 
an increase in the number of persons discriminated against.
    I would ask you to place yourself in the shoes of a Reservist or 
National Guardsman who since September 11th, 2001 has served in 
Afghanistan for 12 months and in Iraq for 15 months and because of 
those deployments is passed over for a position within the Federal 
Government. Who would you call for help? The Department of Labor where 
only 7 percent of the cases are referred for prosecution? The Office of 
Special Counsel which has a 25 percent correction rate? Or, a highly 
skilled privately retained attorney with a 70 percent correction rate? 
Clearly, the answer is for the Federal Government to rely on private 
attorney's to protect our fighting men and women. For private attorneys 
to properly bare that burden Congress must pass and the President must 
sign a Law that mandates attorney's fees so that more firms like mine 
would be willing to provide no cost legal services to our citizen 
soldiers.
    USERRA should be amended to mandate the payment of reasonable 
attorney fees, expert witness fees and other litigation expenses where 
the claimant has procured an Order directing the employer to comply 
with the provisions of the statute after a hearing or adjudication.
    In a recent decision, the Court of Appeals for the Federal Circuit 
determined that while the MSPB may award attorney fees and litigation 
costs to successful USERRA claimants, such awards are not mandatory 
under 38 U.S.C. Sec. 4324(c)(4). See, Jacobsen v. Department of 
Justice, 2007 US App LEXIS 22412. The statute should be amended to 
specifically overrule this interpretation.
    The award of reasonable attorney fees and litigation costs is par-
for-the-course in virtually all other forms of employment 
discrimination and veterans benefits litigation. For example, 33 U.S.C. 
Sec. 918 entitles Longshoremen and harbor workers to attorney fees in 
successful employment discrimination and workers' compensation claims. 
Similarly, whistleblowers and veterans discriminated against in 
violation of the Veterans Employment Opportunities Act are also 
entitled to an award of attorney fees and litigation costs; just to 
name a few.\1\ Congress clearly intended to ensure that veterans who 
have meritorious employment discrimination complaints will not be 
deterred from bringing such claims due to costs associated with the 
effective assistance of counsel.
---------------------------------------------------------------------------
    \1\ See, 5 U.S.C. Sec. 1221(g)(2); 5 U.S.C. Sec. 3330c(b); 29 
U.S.C. Sec. 626; 29 U.S.C. Sec. 216(b); 10 U.S.C. Sec. 2409; 12 U.S.C. 
Sec. 1975; 14 U.S.C. Sec. 425; and 16 U.S.C. Sec. 3117.
---------------------------------------------------------------------------
    This intent must be stated in an amendment to USERRA so that no 
deserving claimant will be forced to bear the burden of his or her own 
legal representation, or worse, deterred from bringing the claim due to 
economic hardship. Congress enacted USERRA to protect Veterans from 
unlawful discrimination in their employment because of their military 
service. An essential aspect of that protection is ensuring that 
aggrieved Veterans have access to affordable, skilled, and experienced 
legal counsel to successfully enforce their rights under USERRA.
    Furthermore, over the past two (2) years, the Government 
Accountability Office (GAO) has conducted multiple investigations into 
the efficiency of USSERA enforcement.\2\ The reports unanimously 
conclude that the Department of Labor (DOL) and the Department of 
Justice (DOJ) are failing our service men and women in their 
administration of USERRA. The GAO found deficiencies in the manner in 
which both departments advised claimants, processed claims, and 
enforced claimants' rights.\3\
---------------------------------------------------------------------------
    \2\ See, GAO-06-60, October 2005; GAO-07-259; and, GAO-07-907, July 
2007. All of these reports elucidate the ineptitude with which the DOL 
and DOJ administer USERRA.
    \3\ Id.
---------------------------------------------------------------------------
    The current enforcement scheme fails to provide adequately for 
victims of USERRA violations. Such a systematic failure to properly 
administer the provisions and protections of the Act cannot be 
justified. Under the circumstances, the only efficient and effective 
method of redress for victims of USERRA violations is representation by 
private counsel who will effectively pursue their claim. Given this 
fact, a mandatory award of attorney fees is imperative in the interest 
of justice; no victim of a USERRA violation should have to endure two 
harms as a result of an unlawful employment practice, namely, the 
denial of a benefit of employment and the financial burden of enforcing 
his or her rights in the face of such a violation.
    With this in mind, I propose that 38 U.S.C. Sec. 4324(c)(4) be 
deleted and replaced with the following language:

    (c)(4) If the Merit Systems Protection Board determines as a result 
    of a hearing or adjudication that the claimant is entitled to an 
    order referred to in paragraph (2), the Board shall order the 
    agency to comply with such provisions and award compensation for 
    any loss of wages or benefits suffered by the individual by reason 
    of the violation involved. A successful claimant SHALL be awarded 
    reasonable attorney fees, expert witness fees, and other litigation 
    expenses. (emphasis added).

    Similarly, I propose that 38 U.S.C. Sec. 4323(h)(2), which governs 
the remedies available to State and private employees, be amended to 
read as follows:

    (h)(2) In any action or proceeding to enforce a provision of this 
    chapter [38 USCS Sec. Sec. 4301 et seq.] by a person under 
    subsection (a)(2) who obtained private counsel for such action or 
    proceeding, the court SHALL award any such person who prevails in 
    such action or proceeding reasonable attorney fees, expert witness 
    fees, and other litigation expenses. (Emphasis added.)

    These amendments are a cost-neutral and minimally restrictive 
method for achieving our goals. By mandating the payment of reasonable 
attorney fees and litigation costs, the amendment will effectively 
overrule the prejudicial holding in Jacobsen and eliminate the barrier 
between aggrieved veterans and the legal counsel they need to 
adequately pursue their rights. It would also finally place USERRA on 
equal ground with other employment discrimination and Veterans benefits 
statutes, thereby effectuating the intent of Congress. This minor 
revision will provide veterans the best option for enforcing their 
rights, enabling them to retain private counsel and bypass the failed 
DOL and DOJ administration system.
    Moreover, the change will prevent malicious and detrimental agency 
action. By making attorney fees a statutory benefit under the Act, we 
can prevent the malicious and injurious agency conduct which occurred 
in Seitz v. Department of Veterans' Affairs.\4\ In Seitz, the agency 
intentionally protracted the litigation, thereby increasing the amount 
of the claimant's litigation costs and attorney fees. On the eve of the 
hearing, however, the agency paid the claimant the disputed amount of 
damages and sought to moot the claim. As a result of the agency's 
litigation tactics, an award only in the amount of the claimant's 
disputed damages, was grossly insufficient to return the claimant to 
the Status Quo Ante payment for the claimant's legal representation, 
the Board ultimately concluded that the inappropriate conduct of the 
agency entitled the claimant to litigate the issue of attorney fees.
---------------------------------------------------------------------------
    \4\ See, Final Order dated March 7, 2007.
---------------------------------------------------------------------------
    Nonetheless, codification of this principle is essential. Only by 
expressly incorporating the claimant's statutory entitlement to 
attorney fees can we prevent the aforementioned disingenuous conduct. 
An agency must not be allowed to take actions that facilitate 
unnecessary legal expenses and then, at the last minute, pay the 
claimant damages in order to render the claim moot. This conduct places 
the burden of legal representation on the claimant, in violation of 
Congressional intent and the prevailing equitable considerations 
favoring retention of private counsel by USERRA claimants.
   useera must be amended to permit the office of special counsel to 
   investigate and discipline federal employees who violate the act.
    5 U.S.C. Sec. 1215 provides the Office of Special Counsel (OSC) 
broad powers to investigate and discipline Federal employees who 
violate any ``law, rule or regulation'' falling within its vast 
jurisdiction. Unfortunately, USERRA violators have not yet been subject 
to the oversight and disciplinary authority of the OSC. USERRA should 
be amended to empower OSC to investigate and punish violators 
personally for their unlawful discriminatory acts. Personal liability 
is the ultimate deterrent and its implementation would have a profound 
effect on those unsavory individuals who might otherwise commit a 
USERRA violation.
    Thus, I propose that 38 U.S.C. Sec. 4324 be amended to provide for 
three (3) new subparagraphs (f), (g), and (h) which read as follows:

    (f)(1) Except as provided in subsection (g), if the Special Counsel 
    determines that disciplinary action should be taken against any 
    employee for having--
      (A) committed a prohibited personnel practice, adverse or 
        unlawful employment practice, or violated any provisions of 
        this chapter;
      (B) violated the provisions of any law, rule, or regulation, or 
        engaged in any other conduct within the scope of this chapter 
        [37 U.S.C. Sec. Sec. 4301 et seq.];
      (C) knowing fully and willfully refused or failed to comply with 
        an order of the Merit Systems Protection Board, the Special 
        Counsel shall prepare a written complaint against the employee 
        containing the Special Counsel's determination, together with a 
        statement of supporting facts, and present the complaint and 
        statement to the employee and the Board, in accordance with 
        this subsection.
    (2) Any employee against whom a complaint has been presented to the 
    Merit Systems Protection Board under paragraph (1) is entitled to--
      (A) a reasonable time to answer orally and in writing, and to 
        furnish affidavits and other documentary evidence in support of 
        the answer;
      (B) be represented by an attorney or other representative;
      (C) a hearing before the Board or an administrative law judge as 
        prescribed by 38 U.S.C. Sec. 4324(c)(1)(A);
      (D) have a transcript kept of any hearing under subparagraph(C); 
        and
      (E) a written decision and reasons therefore at the earliest 
        practicable date, including a copy of any final order imposing 
        disciplinary action.
    (3) A final order of the Board may impose disciplinary action 
    consisting of removal, reduction in grade, debarment from Federal 
    employment for a period not to exceed 5 years, suspension, 
    reprimand, or an assessment of a civil penalty not to exceed 
    $1,000.
    (4) There may be no administrative appeal from an order of the 
    Board. An employee subject to a final order imposing disciplinary 
    action under this subsection may obtain judicial review of the 
    order by filing a petition therefore with such court, and within 
    such time, as provided for under section 7703(b) [5 USCS 
    Sec. 7703(b)].
    (g) In the case of an employee in a confidential, policymaking, 
    policy-determining, or policy-advocating position appointed by the 
    President, by and with the advice and consent of the Senate (other 
    than an individual in the Foreign Service of the United States), 
    the complaint and statement referred to in subsection (f)(1), 
    together with any response of the employee, shall be presented to 
    the President for appropriate action in lieu of being presented 
    under subsection (f).
    (h)(1) In the case of members of the uniformed services and 
    individuals employed by any person under contract with an agency to 
    provide goods or services, the Special Counsel may transmit 
    recommendations for disciplinary or other appropriate action 
    (including the evidence on which such recommendations are based) to 
    the head of the agency concerned.
    (2) In any case in which the Special Counsel transmits 
    recommendations to an agency head under paragraph (1), the agency 
    head shall, within 60 days after receiving such recommendations, 
    transmit a report to the Special Counsel on recommendation and the 
    action taken, or proposed to be taken, with respect to each such 
    recommendation.
       userra must be amended to mandate the payment of complete 
             compensatory damages for successful claimants.
    Currently, USERRA does not provide a statutory entitlement to 
compensatory damages for successful claimants. This is an anomaly in 
employment discrimination and Veteran's benefits legislation.\5\ 
Pursuant to 38 U.S.C. Sec. Sec. 4301 and 4331, USERRA must be amended 
to provide comparable relief to Federal employees for violations of the 
Act. Law and equity demand that USERRA eligible employees receive the 
same quality anti-discrimination protection as all other employees.
---------------------------------------------------------------------------
    \5\ See, 42 U.S.C. Sec. Sec. 2000-1 et seq.; and, 5 U.S.C. 
Sec. Sec. 3330 et seq.
---------------------------------------------------------------------------
    Title VII was amended to provide for compensatory damages because 
Congress recognized that a financial award, typically consisting of 
back pay, is often insufficient, by itself, to fully compensate the 
victim for his or her injuries. Discrimination cases commonly involve 
complex, non-pecuniary injuries. Successful claimants should be 
entitled to compensation for these injuries in addition to their 
financial damages. For example, Section 102 of the Civil Rights Act of 
1991 has been held to allow recovery for the following non-pecuniary 
injuries under its compensatory damages remedy: ``future pecuniary 
losses, emotional pain, suffering, inconvenience, mental anguish, loss 
of enjoyment of life, and other non-pecuniary losses.'' \6\ The same 
remedies available to victims of unlawful employment practices under 
the Civil Rights Act of 1991 should be available to victims of 
discrimination under USERRA.
---------------------------------------------------------------------------
    \6\ Gilbert, Gary. ``Compensatory Damages and Other Remedies in 
Federal Sector Employment Discrimination Case.'' 2nd ed. Dewey 
Publications, Inc: Arlington, 2003. Page 97.

    Therefore, I propose that 38 U.S.C. Sec. 4324(c) be amended to add 
---------------------------------------------------------------------------
a new subsection (9) to read as follows:

    (9) In any claim brought pursuant to the laws of this chapter [38 
    U.S.C. Sec. Sec. 4301 et seq.], where the Merit Systems Protection 
    Board or Administrative Judge determines that an employer failed to 
    comply with the provisions of this chapter, the Board or Judge 
    shall award the claimant compensatory damages in addition to, but 
    not including, any other relief granted pursuant to this chapter.

    Additionally, I propose that 38 U.S.C. Sec. 4323(d)(1) be amended 
to add a new subsection (E), which reads as follows:

    (E) In any action brought pursuant to the laws of this chapter [38 
    U.S.C. Sec. Sec. 4301 et seq.], where the court determines that an 
    employer failed to comply with the provision of this chapter, the 
    court shall award the claimant compensatory damages in addition to, 
    but not including, any other relief granted pursuant to this 
    chapter.
           userra must be amended to require the payment of 
             pre-judgment interest on all back pay awards.
    As currently drafted, 38 U.S.C. Sec. 4323(d)(1)(B) provides that, 
``[t]he court may require the employer to compensate the person 
[claimant] for any loss of wages or benefits suffered by reason of the 
employer's failure to comply with the provisions of this chapter.'' 
This section should be amended to specifically provided for the payment 
of pre-judgment interest on back pay awards for three (3) reasons: (i) 
an award of pre-judgment interest is necessary to fully compensate the 
victim; (ii) Congress intended for awards of back pay to include an 
award of pre-judgment interest; and, (iii) it is necessary in order to 
provide the same level of protection to victims of USERRA violations 
that Congress has extended to all other victims of employment 
discrimination.
    An award of back pay lacking accrued interest fails to properly 
compensate the victim for his or her actual damages. For example, 
paying someone in 2007 for a loss that was suffered in 2002 does not 
take into account two (2) undeniable market forces that effect the 
contemporary value of money: inflation and opportunity cost or time 
value. If an aggrieved Veteran receives an award of back pay in 2007 
for lost wages occurring in 2002, inflation will have devalued that sum 
to a measurable extent. Furthermore, not having had that money in his 
or her possession over the past five (5) years caused the victim to 
lose his or her opportunity to invest that sum and earn interest.
    It is true that neither Sec. Sec. 4323(d)(1)(B) nor 4324(c)(2) 
expressly guarantees a successful claimant interest on an award of back 
pay. Nonetheless, Congress clearly intended that Veterans discriminated 
against in violation of USERRA should receive interest on awards. 
Section 4323(d)(3) expressly provides for the payment of prejudgment 
interest for awards against State and private employers. Additionally, 
under USERRA's predecessor, the Veterans' Reemployment Rights Law of 
1940 (VRR), prejudgment interest was commonly awarded, a fact that was 
well known to Congress at the time of USERRA's enactment.\7\
---------------------------------------------------------------------------
    \7\ See, Captain Samuel F. Wright, JAGC, USNR article, ``Does 
USERRA Provide Interest on Back Pay Awards?'' Law Review No. 0611, 
posted on www.roa.org in April 2006.
---------------------------------------------------------------------------
    Prejudgment interest is routinely awarded in all other employment 
discrimination cases.

    Prejudgment interest serves to compensate for the loss of money due 
    as damages from the time a claim accrues until judgment is entered, 
    thereby achieving full compensation for the injury these damages 
    are intended to redress[T]o the extent the damages awarded to the 
    plaintiff represent compensation for lost wages, it is ordinarily 
    an abuse of discretion not to include prejudgment interest. Fink v. 
    City of New York, 129 F.Supp 511, 525-26 (E.D.N.Y. 2001) 
    (Addressing interest on back pay awards under USERRA).

    Until the statutory language is amended to unambiguously include 
interest on awards for USERRA violations, zealous agency attorneys will 
continue to argue that the absence of an express entitlement to an 
award of interest is evidence that such an award is NOT mandatory. 
Given the regularity with which these cases take years to resolve, 
prejudgment interest is an essential part of any compensatory remedy.
    Therefore, I propose that 38 U.S.C. Sec. 4323(d)(1)(B) be amended 
to read as follows:

    The court may require the employer to compensate the person 
    [claimant] for any loss of wages or benefits, INCLUDING INTEREST, 
    suffered by reason of the employer's failure to comply with the 
    provisions of this chapter. (Emphasis added)

    As noted above, sections 4301(b) and 4331(b)(1) demand that Federal 
employees receive at least the same degree of protection and quality of 
benefits as all other employees under USERRA. Consequently, I propose 
that Sec. 4324(c)(2) also be amended, and that it read as follows:

    (2) If the Board determines that a Federal executive agency or the 
    Office of Personnel Management has not complied with the provisions 
    of this chapter [38 USCS Sec. Sec. 4301 et seq.] relating to the 
    employment or reemployment of a person by the agency, the Board 
    shall enter an order requiring the agency or Office to comply with 
    such provisions and to compensate such person for any loss of wages 
    or benefits, INCLUDING INTEREST, suffered by such person by reason 
    of such lack of compliance. (Emphasis added).
         userra must be amended to expand the availability of 
              liquidated damages for successful claimants.
    USERRA currently provides limited instances where a successful 
claimant may be awarded liquidated damages. Pursuant to section 
4323(d)(1)(C), if a claimant was found be the victim of a willful 
violation, he or she is entitled to liquidated damages in the amount of 
his or her actual damages. The provision, however, applies only to 
servicemen and women employed by state or local governments or private 
employers.
    RAJA, H.R. 3393, proposes to amend section 4323(d) by extending its 
coverage to Federal Government employees and by ensuring that 
liquidated damages will always be available to victims of willful 
USERRA violations. The bill seeks to increase the amount of liquidated 
damages available to a successful claimant from the amount of his/her 
actual damages to the greater of either $20,000.00 or the claimant's 
actual damages. I support these proposals and hope to see both of them 
implemented. Additionally, the section should be amended to remove the 
willful violation requirement for liquidated damages.
    The payment of liquidated damages is often the only true award 
granted to victims of USERRA violations. For example, if the victim of 
a wrongful termination under USERRA promptly finds comparable work, his 
or her actual damages may be quite small. As a result, an award of 
additional liquidated damages that merely doubles his or her miniscule 
actual damages award is an insufficient deterrent to employers who 
would discriminate against military personnel in civilian employment. 
Liquidated damages of the greater of $20,000.00 or the claimant's 
actual damages should be available to USERRA claimants in every case.
    It is imperative that the language in RAJA extending this provision 
to protect Federal employees in the same manner as state and private 
employees is adopted. The purpose of USERRA is to protect ALL veterans, 
reservists and National Guard members irrespective of their place of 
employment. By treating our service men and women differently by virtue 
of their employer we are defeating the very basis of the statute. 
USERRA demands parity. Justice demands parity. Equitable treatment 
among all USERRA eligible employees is an ethical absolute and is 
necessary to fulfill the intent of Congress by extending the promise of 
USERRA protections to all eligible employees.
    Therefore, I propose that section 4323(d) be amended to read as 
follows:

    (1) In any action under this section, the court may award relief as 
    follows: (C) If the court determines that an employer has failed to 
    comply with the provisions of this chapter, the court SHALL require 
    the employer to pay the person as liquidated damages an amount 
    equal to the greater of: . . . (i) the amount referred to in 
    subparagraph (B); or (ii) $20,000.00. (Emphasis added).

    Additionally, section 4324(c) must be amended, pursuant to 38 
U.S.C. Sec. Sec. 4301 and 4331, to provide the same protection. I 
propose that 38 U.S.C. 4324(c) be amended to add a new subsection (7) 
which reads as follows:

    (7) In any action under this section, the court may award relief as 
    follows: (i) if the court determines that an employer has failed to 
    comply with the provisions of this chapter, the court SHALL require 
    the employer to pay the person as liquidated damages an amount 
    equal to the greater of: (A) the amount referred to in subparagraph 
    (C)(2); or (B) $20,000.00. (Emphasis added).
        userra must be amended to provide for punitive damages 
                 in the worst cases of discrimination.
    Presently, USERRA does not provide for an award of punitive 
damages. As mentioned above, section 4323(d) allows for liquidated 
damages in only the most limited of instances. Representative Davis' 
RAJA proposals, however, include a provision that would allow for 
punitive damage awards to victims of the worst kinds of discrimination.
    H.R. 3393 proposes to amend USERRA section 4323(d) to provide for 
the availability of punitive damages, in addition to liquidated 
damages, where the court finds that the violation was committed with 
``malice or reckless indifference to the federally protected rights of 
the person.'' The proposal would apply only to state and local 
governments and private employers with more than fifteen (15) 
employees. I support these proposals. However, I believe that punitive 
damage awards need to be expanded even further.
    Punitive damage awards should be available in all cases where the 
employer knowingly, willfully, maliciously or with reckless 
indifference violated an employees protected USERRA rights. Punitive 
damages are imposed as a deterrent to future egregious behavior. Any 
act taken by an employer of his or her own volition with the knowledge 
that he or she is denying a member of the military his or her protected 
rights offends the most sacred principles of our society. Such behavior 
must be discouraged in the clearest and strongest manner possible. A 
simple amendment to the existing law unambiguously granting employees a 
right to punitive damages in such cases will greatly reduce the number 
of employers willing to flout the law.
    Moreover, limiting the availability of punitive damage awards to 
cases against state and local governments and private employers of 15 
or more persons leaves a vast number of USERRA-eligible employees 
unprotected. Congress intended for veterans benefit and employment 
discrimination statutes to apply to all eligible parties equally, 
regardless of their employer. By allowing punitive damage awards only 
for employees of state and local governments and large private 
employers, the RAJA proposal discriminates against an enormous number 
of veterans, reservists and National Guard members who are employed 
either by Federal agencies or by smaller private employers. USERRA, to 
be effective, demands parity. How can we look a veteran in the eye and 
tell him or her that we value his or her service less because he or she 
is employed by a ten (10)-person construction crew and not by the 
Commonwealth of Massachusetts or Morgan Stanley?
    Therefore, I propose that 38 U.S.C Sec. 4323 be amended to read as 
follows:

    (d)(1)(D) If the court determines that the employer willfully, 
    knowingly, maliciously, or with reckless indifference failed to 
    comply with the provisions of this chapter, in violation of the 
    employee's federally protected rights, the person shall be entitled 
    to an award of punitive damages in addition to all other remedies 
    outlined in this chapter.

    Likewise, 38 U.S.C Sec. 4324(c) must also be amended to provide for 
punitive damages awards in cases of willful or malicious 
discrimination. I propose section 4324(c) be amended to add a new 
subsection (8) to read as follows:

    (8) If the court determines that the employer willfully, knowingly, 
    maliciously, or with reckless indifference failed to comply with 
    the provisions of this chapter, in violation of the employee's 
    federally protected rights, the person shall be entitled to an 
    award of punitive damages in addition to all other remedies 
    outlined in this chapter.
         userra must be amended to make injunctive and interim 
                  relief mandatory where appropriate.
    Under the current statutory structure, section 4323(e) of USERRA 
permits courts to invoke their full equity powers to remedy violations 
at the courts' discretion. Section 4324 contains no provision regarding 
the courts' power to grant equitable relief. In 2005 the Seventh 
Circuit Court of Appeals upheld a lower court decision denying 
injunctive relief under section 4323(e) in Bedrossian v. Northwestern 
Memorial Hospital, 409 F.3d 840 (7th Cir 2005). Dr. Bedrossian, in 
addition to his military service in the Air Force Reserves, was 
employed as a physician and professor at Northwestern Memorial 
Hospital. The Hospital sought to fire Dr. Bedrossian because of the 
inconvenience caused by his military service and the Doctor responded 
by seeking an injunction. The trial court held, and the Seventh Circuit 
affirmed that, regardless of the strength of the claimant's case, an 
injunction was not an available remedy. This decision should be 
overruled.
    By merely, changing the word ``may'' in section 4323(e) to 
``shall'', Congress could ensure that equitable relief is available to 
all USERRA victims when appropriate. The claimant would still need to 
demonstrate his or her entitlement to equitable relief in the form of 
an injunction. However, under the proposed amendment, once the claimant 
has established that an injunction is appropriate, the court would be 
required to grant it.
    This proposal is one of many contained in H.R. 3393, the Reservists 
Access to Justice Act (RAJA), sponsored by Representative Artur Davis 
(D-AL). RAJA recognizes that the driving force behind the enactment of 
USERRA was to support and protect the members of our armed forces. The 
national defense interests of our country require that the segment of 
our military composed of civilian employees is supported by their 
civilian employers. We are currently fighting a global war on terror on 
multiple fronts. For the first time in our Nation's history we are 
waging war on a grand scale without conscription and in reliance on an 
all volunteer military; Congress recognizes this and strongly supports 
this Nation's commitment to voluntary military service. Nonetheless:

    Congress also recognizes that the reliance on volunteers means that 
    we must include substantial incentives for young men and women to 
    join and remain in our Nation's uniformed services. We also must 
    mitigate the disincentives to service, including the realistic fear 
    that ``if I sign up, I will lose my civilian job.'' \8\
---------------------------------------------------------------------------
    \8\ See, Captain Samuel F. Wright, JAGC, USNR article, ``Firmer 
Teeth: Legislation introduced to enhance USERRA enforcement'' Law 
Review No. 0754, posted on www.roa.org in October 2007.

    Thus, I, too, propose that 38 U.S.C. Sec. 4323 be amended to add a 
---------------------------------------------------------------------------
new subsection (e) which reads as follows:

    The court SHALL use its full equity powers, including temporary or 
    permanent injunctions, temporary restraining orders, and contempt 
    orders, to vindicate fully the rights or benefits of persons under 
    this chapter. (Emphasis added)

    Pursuant to 38 U.S.C. Sec. 4301(b), ``It is the sense of Congress 
that the Federal Government should be a model employer in carrying out 
the provisions of this chapter [38 USCS Sec. Sec. 4301 et seq.]'' With 
this in mind, Congress enacted 38 U.S.C. Sec. 4331(b)(1) which states, 
in relevant part:

    The Director of the Office of Personnel Management (in consultation 
    with the Secretary and the Secretary of Defense) may prescribe 
    regulations implementing the provisions of this chapter [38 USCS 
    Sec. Sec. 4301 et seq.] with regard to the application of this 
    chapter [38 USCS Sec. Sec. 4301 et seq.] to Federal executive 
    agencies (other than the agencies referred to in paragraph (2)) as 
    employers. Such regulations shall be consistent with the 
    regulations pertaining to the States as employers and private 
    employers, except that employees of the Federal Government may be 
    given greater or additional rights. (Emphasis added).

    Therefore, any amendment to Sec. 4323 resulting in greater benefits 
to an employee must also, by law, be reflected in a comparable 
amendment to Sec. 4324. As a result, I also propose that section 
4324(c) be amended to provide a new subsection (5) that reads as 
follows:

    The Merit System Protection Board or Presiding Administrative Judge 
    SHALL use its full equity powers, including temporary or permanent 
    injunctions, temporary restraining orders, and contempt orders, to 
    vindicate fully the rights or benefits of persons under this 
    chapter. (Emphasis added)

    Additionally, USERRA should be amended to provide for interim 
relief comparable to that afforded to other employees under 5 U.S.C. 
Sec. 7701(b)(2) for deserving section 4324 claimants. 5 U.S.C. 
Sec. 7701(b)(2) directs the Merit Systems Protection Board (MSPB or 
Board) to award successful Appellants, ``the relief provided in the 
decision effective upon making the decision, and remaining in effect 
pending the outcome of any petition for review under subsection (e).'' 
In contrast, USERRA does not require a Federal Executive Agency under 
section 4324 to furnish any relief until a final decision has been 
entered. Thus, a claimant who successfully established an unlawful 
employment practice may be required to remain unemployed and 
uncompensated for a period of up to two (2) years until the MSPB enters 
a final decision, whereas, an otherwise identical claimant who files an 
action before the Equal Employment Opportunity Commission is entitled 
to interim relief immediately upon the entering of an initial decision. 
This inequity cannot be justified and must be remedied.
    The MSPB's interim relief authority pursuant to 5 U.S.C. 
Sec. 7701(b)(2) must be extended to USERRA claims. Therefore, I propose 
that 38 U.S.C. Sec. 4324(c) be amended to provide a new subsection (6) 
that reads as follows:

    (e)(1) If an employee or applicant for employment is the prevailing 
    party in an appeal under this subsection, the employee or applicant 
    shall be granted the relief provided in the decision effective upon 
    the making of the decision, and remaining in effect pending the 
    outcome of any petition for review under subsection (d), unless--
      (A)(i) the relief granted in the decision provides that such 
        employee or applicant shall return or be present at the place 
        of employment during the period pending the outcome of any 
        petition for review under subsection (e); and
      (ii) the employing agency, subject to the provisions of 
        subparagraph (a), determines that the return or presence of 
        such employee or applicant is unduly disruptive to the work 
        environment.
    (2) If an agency makes a determination under subparagraph (A) that 
    prevents the return or presence of an employee at the place of 
    employment, such employee shall receive pay, compensation, and all 
    other benefits as terms and conditions of employment during the 
    period pending the outcome of any petition for review under 
    subsection (d).

    The extensive deployment of Reservists and Members of the National 
Guard in furtherance of the War Against Terror has only compounded the 
inequity and made the need for congressional intervention more 
pronounced.
    As Army Chief of Staff Gen. George W. Casey Jr. stated during a 
recent Association of the United States Army Convention, ``Our reserve 
components are performing magnificently, but in an operational role for 
which they were neither designed nor resourced. They are no longer a 
strategic reserve, mobilized only in national emergencies. They are now 
an operational reserve deployed on a cyclical basis,'' enabling the 
Army to sustain operations. ``Operationalizing'' the reserve components 
``will require national and state consensus, as well as the continued 
commitment from employers, soldiers and families,'' Casey said 
(emphasis added). ``It will require changes to the way we train, equip, 
resource and mobilize.''
    I could not agree with General Casey more. As the National Guard 
and Reserves change to an operational reserve, it is vital to our 
national security and our homeland defense to ensure members of these 
units are protected from losing their full-time careers while they 
defend our country at home and abroad. The time for a major overhaul of 
the laws that protect the employment rights of members of the National 
Guard and Reserves is upon us.
    As currently drafted, the Uniformed Services Employment and 
Reemployment Rights Act of 1994 (USERRA) fails to adequately support 
military personnel upon their return to civilian employment. The 
Honorable Representative Artur Davis (D-AL) recently sponsored new 
legislation, H.R. 3393, to address some of the law's deficiencies. I 
urge you to demonstrate your strong commitment to the brave men and 
women who serve in the armed forces by supporting these amendments and 
by incorporating the additional proposals contained within this 
correspondence into a new more comprehensive updating of USERRA. Please 
fight to get this updated USERRA bill passed as quickly as possible.
    Our national defense and homeland security depend on the men and 
women in our National Guard and Reserves, and while they are protecting 
us we should be protecting their civilian jobs. We never want to be in 
the situation where members of the reserves need to pick between 
helping our national defense and their civilian careers, as that will 
undermine our security. Unfortunately, too many have been placed in 
that situation, and after many deployments (both overseas and stateside 
guarding our bridges, tunnels, nuclear power plants, and responding to 
natural disasters) have chosen their civilian careers over their 
service to our country. This exodus of highly skilled and trained 
personnel could undermine our recruiting efforts and result in a 
hollowed out military force unless Congress takes immediate action to 
strengthen the weak links. Fixing USERRA is a good first step to taking 
away the fear of a deployment and how that deployment will have a 
negative impact on their civilian careers.
     userra must be amended to protect national guard members who 
              are called to active duty in state service.
    Active duty National Guard members fulfilling State service 
obligations are currently excluded from USERRA protection under 38 
U.S.C. Sec. 4303(13). The definition of ``service'' contained in that 
chapter includes virtually all other types of uniformed, military duty; 
including ``full-time National Guard'' service. The statute expressly 
recognizes the vital importance of National Guard service to our 
security interests. Whether those duties are performed on full or part-
time status, or in furtherance of Federal or State objectives, is of 
little consequence when evaluating the critical importance of the task. 
National Guard members called to State service are deployed to defend, 
protect, rebuild and sustain American infrastructure and communities. 
These emergency responders are an integral component of our homeland 
security strategy, the indispensability of which was heroically 
demonstrated in the aftermath of September 11th and the devastation of 
Hurricane Katrina.
    Justice demands that their contributions to our national defense 
and homeland security do not go unrecognized. USERRA must be amended to 
reflect the contributions of National Guard members serving under State 
obligation and to protect their civilian livelihood. The distinction 
between State active duty and Federal active duty for the purposes of 
USERRA protection is an arbitrary one; we must provide all of our 
uniformed servicemembers with equal protection under the law.
    Thus, I propose that 38 U.S.C. Sec. 4303(13) be amended to read as 
follows:

    (13) The term 'service in the uniformed services' means the 
    performance of duty on a voluntary or involuntary basis in a 
    uniformed service under competent authority and includes: active 
    duty; active duty for training; initial active duty for training; 
    inactive duty training; full-time National Guard; service in the 
    National Guard under competent state military authority while in 
    support of a homeland security mission, in response to a natural 
    disaster, in response to aid to civil authorities, or for any other 
    reason that the Governor of the state declares the need for a state 
    activation of the National Guard is necessary, a period for which a 
    person is absent from a position of employment for the purpose of 
    an examination to determine the fitness of the employment for the 
    purpose of performing funeral honors duty as authorized by section 
    12503 of title 10 or section 115 of title 32.
userra must be expanded to protect members of the commissioned corps of 
          the national oceanic and atmospheric administration.
    The National Oceanic and Atmospheric Administration (NOAA) occupies 
a pivotal role in national defense and homeland security. As the first 
line of defense against natural disaster, NOAA is charged with the 
protection of our persons, property, national security and economic 
interests.
    Notably, NOAA administers the Defense Meteorological Satellite 
Program (DMSP) in conjunction with the Department of Defense (DOD). The 
program involves complex aerospace and weapons development and requires 
the maintenance of a massive satellite network, sensory aircraft and 
specialized monitoring equipment. NOAAs persistent geological 
monitoring and intelligence gathering are fundamental to our national 
security operations.
    Inexplicably, USERRA excludes members of the commissioned corps of 
the National Oceanic and Atmospheric Administration from the definition 
of ``uniformed service.'' \9\ This exclusion precludes NOAA employees 
from invoking USERRA protections in the face of unlawful employment 
actions. The exclusion is an anomaly and appears to be a clerical error 
given the inclusion of NOAA members in other statutory definitions of 
``uniformed service.'' \10\ The Act must be amended to eliminate this 
injustice and to provide critical service men and women with the same 
benefits their uniformed service compatriots share.
---------------------------------------------------------------------------
    \9\ 38 U.S.C. Sec. 4303(16).
    \10\ 10 U.S.C. Sec. 101(a)(5)(B).
---------------------------------------------------------------------------
    Consequently, I propose that 38 U.S.C. Sec. 4303(16) be amended to 
read as follows:

    (16) The term ``uniformed services'' means the Armed Forces; the 
    Army National Guard and the Air National Guard when engaged in 
    active duty for training, inactive duty training, or full-time 
    National Guard duty; the commissioned corps of the Public Health 
    Service; the commissioned corps of the National Oceanic and 
    Atmospheric Administration; and any other category of persons 
    designated by the President in time of war or national emergency.
    userra must be amended to unambiguously preclude userra claims 
                       from binding arbitration.
    38 U.S.C. Sec. 4302(b) expressly states that any law, agreement, or 
practice which, ``reduces, limits, or eliminates in any manner any 
right or benefit'' provided under USERRA is preempted by the statute. 
Nonetheless, the Fifth Circuit Court of Appeals recently held that this 
provision only preempts agreements limiting the claimants' substantive 
rights and not his or her procedural rights (e.g. the right to pursue a 
lawsuit in Federal court as opposed to being required to proceed via 
arbitration). See, Garrett v. Circuit City Stores, Inc., 449 F.2d 672 
(5th Cir. 2006). This is an egregious misapplication of the text and 
purpose and intent of USERRA and must be overturned by legislative 
mandate. Veterans must not be denied the procedural due process of law 
as a result of employment agreements contradicting Federal law.
    Accordingly, I implore you to support RAJA, H.R. 3393, and its 
proposed amendment to Chapter 1 of Title 9 of the United States Code, 
which would unambiguously exempt USERRA disputes from binding 
arbitration agreements and expressly overrule Garrett. In that vein, I, 
too, propose that 38 U.S.C. Sec. 4322 be amended to add a new 
subsection that reads as follows:

    (g) Chapter 1 of title 9 shall not apply with respect to employment 
    or reemployment rights or benefits claimed under this subchapter.
 userra must be amended to adopt two additional exceptions to section 
     4312's 5-year limitation on section 4313 reemployment rights.
    As currently drafted, USERRA's reemployment protections lapse after 
a 5-year period of consecutive active duty service. Section 4312(c) 
establishes eight specific exceptions to this 5-year limitation, 
thereby enabling employees to serve five or more years of continuous 
active duty while working for a single employer and retaining his or 
her reemployment rights under the Act. Additionally, the Department of 
Labor (DOL) regulations implementing USERRA recognize a ninth 
exception.
    DOL USERRA regulation Sec. 1002.103 applies to servicemembers who 
are forced to mitigate economic losses suffered as a result of an 
employer's USERRA violation. The regulation provides, in relevant part, 
that a servicemember who remains or returns to the armed services in an 
attempt to ``mitigate economic losses caused by the employer's unlawful 
refusal to reemploy that person,'' \11\ shall not be required to count 
the time ``against the 5-year limit.'' \12\ The regulation is grounded 
in equitable considerations. Those same considerations demand that the 
exception created by the regulation be fully incorporated into the text 
of the statute.
---------------------------------------------------------------------------
    \11\ 20 C.F.R. 1002.103.
    \12\ Id.

    I propose that 38 U.S.C. Sec. 4312(c) be amended to add a new 
---------------------------------------------------------------------------
subsection (5) which reads as follows:

    (5) which is undertaken by an individual who remains in or, returns 
    to, uniformed service in order to mitigate economic damages 
    suffered as a consequence of the employer's unlawful failure to 
    comply with the provisions of this chapter.

    An additional exception should also be added for National Guard 
members who are called to state active duty service in response to 
homeland emergencies. As currently drafted, time spent fulfilling 
active duty training commitments, time on active duty support for 
critical missions and time called upon for Federal active duty National 
Guard service are all exempt from consideration in calculating a 
person's 4312 time. Presumably, these missions are considered so 
important that they warrant preferential treatment. Under this 
reasoning, active duty service in furtherance of a State's emergency 
response is an equally compelling interest and should receive 
equivalent treatment.
    Homeland emergency response is an integral component of our 
homeland security strategy. The fact that disasters and emergencies 
requiring the mobilization of active duty National Guard forces are 
generally unforeseeable adds weight to the argument that service men 
and women should not be penalized in their USERRA reemployment rights 
because they were required to answer the call to service. USERRA must 
be amended to take into account the sacrifices of guardsmen and their 
families during times of crisis. National Guard members who respond to 
such crises in State service should be entitled to the same protections 
as their Federal counterparts.
    Therefore, I propose that 38 U.S.C. Sec. 4312(c) be amended to 
provide for a new subsection (6) that reads as follows:

    (6) service in the National Guard under competent state military 
    authority while in support of the homeland, in response to a 
    natural disaster, in response to aid to civil authorities, or for 
    any other reason that the Governor of the state declares the need 
    for a state activation of the National Guard is necessary.
       userra must be amended so that the term ``adjudication'' 
inSec. 4324(c)(1) is defined as providing the same procedures available 
                to appellants under 5 u.s.c. Sec. 7701.
    In its current incarnation, USERRA does not expressly outline the 
formal due process to which claimants are entitled when bringing a 
claim for relief of an alleged violation of the Act. In Kirkendall v. 
Department of the Army, the Court of Appeals for the Federal Circuit 
concluded that every USERRA claimant has a right to a hearing and that 
he or she is entitled to the same procedures as an ``appellant'' under 
5 U.S.C. Sec. 7701(a). See, Kirkendall v. Department of the Army, 479 
F.3d 380 (Fed. Cir. 2007).
    5 U.S.C Sec. 7701(a) expressly provides for basic due process 
formalities in other appeals brought before the MSPB. USERRA should be 
amended so that both sections 4323 and 4324 unambiguously state the due 
process rights afforded to claimants. USERRA claimants must be granted 
the same procedural protections that the United States Code extends to 
other employees. Codification of the holding in Kirkendall will 
effectively extend the due process protections of 5 U.S.C. Sec. 7701(a) 
to USERRA claimants and correct any enduring ambiguities.
    Therefore, I propose that 38 U.S.C. Sec. 4323(a) be amended to 
incorporate a new subsection (3) which reads as follows:

    (3) Any employee, or applicant for employment, who submits any 
    claim or action for relief pursuant to the rights outlined in this 
    chapter [38 U.S.C. Sec. Sec. 4301 et seq.] shall have the right:
      (A) to a trial by Judge or Jury, for which a transcript will be 
        kept; and
      (B) to be represented by an attorney or other representative.

    In addition, I propose that 38 U.S.C. Sec. 4324(c)(1) be amended to 
provide for a new subparagraph (A) which reads as follows:

    (A) Any employee, or applicant for employment, who submits any 
    claim or action for relief pursuant to the rights outlined in this 
    chapter [38 U.S.C. Sec. Sec. 4301 et seq.] shall have the right:
      (i) to a hearing for which a transcript will be kept; and
      (ii) to be represented by an attorney or other representative.
 userra section 4324 must be amended to state unequivocally that there 
  is no statute of limitations provision governing the time period in 
                 which to bring a claim under the act.
    Section 4323(i) clearly states that ``[n]o Statute of Limitations 
shall apply to any proceeding under this chapter [38 USCS 
Sec. Sec. 4301 et seq.].'' Sections 4301 and 4331 compel Congress to 
amend section 4324 to provide the same protection to Federal Government 
employees.
    The MSPB has already held that no Statute of Limitations applies to 
cases brought under Sec. 4324. See, Hernandez v. Department of the Air 
Force, 2007 U.S. App. LEXIS 20280, 6-7. Nonetheless, codification of 
this principle is the only way to ensure that future Federal Executive 
Agencies will not successfully overturn this ruling and reinstate the 
arbitrary distinction between Federal employees and all other employees 
for the purpose of USERRA Statute of Limitations claims.
    Therefore, I propose that 38 U.S.C. Sec. 4324 be amended to add a 
new subsection (e) which reads as follows:

    (e) Inapplicability of statute of limitations. No statute of 
    limitations shall apply to any proceeding under this chapter [38 
    USCS Sec. Sec. 4301 et seq.].
 userra must be amended to create a new section, section 4327, for the 
 purpose of adjudicating claims by federal judiciary branch employees.
    USERRA presently provides no enforcement mechanism for employees of 
the Federal judiciary branch to adjudicate claims under the Act. The 
inequity in such a discrepancy is apparent. USERRA was not drafted to 
apply only to employees of certain branches of the Federal Government. 
The Act must be amended to provide employees of the Federal judiciary 
branch the same anti-discrimination protections and enforcement 
mechanisms available to all other Federal employees.
    A new section, section 4327, should be created to establish the 
adjudicative body, procedures and protections available to Federal 
judiciary branch employees under USERRA. The Section should otherwise 
be identical to section 4324, including all of my proposed revisions.
     userra must be amended to improve enforcement and procedural 
      transparency for federal employees of intelligence agencies.
    Pursuant to 38 U.S.C. Sec. 4315, most employees of Federal 
Intelligence Agencies, including all employees of agencies governed by 
5 U.S.C. Sec. 2302(a)(2)(C)(ii), are not entitled to the same 
adjudicative procedures available to employees of other Federal 
Executive Agencies under 38 U.S.C. Sec. 4324. This is an arbitrary 
distinction and one that contradicts the express purpose of the Act. As 
such, it should be remedied.
    As a threshold matter, Sec. 4315 should be amended to require that 
all adjudicative ``procedures'' prescribed pursuant to subsection (a) 
be published within 120 days of the date the new Bill is signed into 
law. Procedural transparency is essential to the efficient and orderly 
administration of the statute. Employees cannot properly pursue their 
rights under the law if the requisite procedures are cloaked in 
secrecy. I appreciate the Intelligence community's unique 
circumstances. Nonetheless, I see no threat to our national security in 
requiring the agencies to publish their internal rules regarding USERRA 
enforcement.
    Furthermore, Sec. 4315 should be amended to provide employees of 
the agencies within 5 U.S.C. Sec. 2302(a)(2)(C)(ii) with the same 
procedural rights and available remedies bestowed upon Sec. 4324 
employees. Again, denying certain Federal employees equal rights under 
USERRA based merely upon the Federal agency by which they are employed 
is an arbitrary delineation and one that contradicts the purpose and 
intent of the Act.
    Therefore, I propose that 38 U.S.C. Sec. 4315 be amended to mirror 
section 4324's procedural mechanisms and remedies, including all of my 
proposed revisions.
  userra must be amended to require that any state accepting federal 
  funding must waive its 11th amendment sovereign immunity in userra 
                                actions.
    In his RAJA proposal, H.R. 3393, Representative Davis has included 
language that would amend USERRA to ensure that any state accepting 
Federal funding for a state program or activity is deemed to have 
waived its Sovereign Immunity in cases of USERRA violations. I 
wholeheartedly support this proposal and beseech you to do the same.
    This proposal is imperative to prevent further instances in which 
an aggrieved veteran with a legitimate right to enforce is denied 
relief due to the lack of a forum in which to pursue his or her claim. 
In Larkins v. Department of Mental Health and Mental Retardation, 806 
So.2d 358 (AL Sup Ct 2001), that exact scenario unfolded. Mr. Larkins 
was forbidden from suing the State of Alabama in Federal Court because 
of the Eleventh Amendment of the Constitution of the United State's 
Sovereign Immunity clause. Moreover, he was denied relief in the 
Alabama State Court system by reason of Alabama's own State 
Constitutional Sovereign Immunity protection. Thus, Mr. Larkins found 
himself with a substantive right to enforce but no effective method for 
enforcing it. An unenforceable right is of no value to an injured 
party.
    By amending the Act to provide for a waiver of the 11th Amendment's 
Sovereign Immunity protection for states accepting Federal funding for 
state projects, RAJA ensures that no other USERRA eligible employee 
will suffer Mr. Larkins' fate. Removing the defense of Sovereign 
Immunity guarantees USERRA claimants will always be able to pursue 
their claims against the State-as-employer in Federal court. This 
provision is necessary in order to extend the congressionally 
envisioned protections of USERRA to all eligible employees.
    Consequently, I, too, propose that 38 U.S.C. Sec. 4323(d)(1) be 
amended to read as follows:

    (j)(1)(A) A State's receipt or use of Federal financial assistance 
    for any program or activity of a State shall constitute a waiver of 
    sovereign immunity, under the eleventh amendment to the 
    Constitution or otherwise, to a suit brought by an employee of that 
    program activity under this chapter for the rights or benefits 
    authorized the employee by this chapter. (B) In this paragraph, the 
    term ``program or activity'' has the meaning given the term in 
    section 309 of the Age Discrimination Act of 1975 (42 U.S.C. 
    Sec. 6107).
        userra must be amended to provide veterans the right to 
          bring their claims in either state or federal court.
    Presently, section 4323(b) of USERRA allows veterans to bring cases 
against private employers in Federal court and cases against the state 
in state court. RAJA, H.R. 3393, proposes to amend the Act by granting 
veterans the right to bring their claims in either state or Federal 
court regardless of whether they are employed by the state or a private 
employer. I support this proposal and urge you to do the same. The 
additional flexibility such an amendment provides is vital to 
guaranteeing USERRA-eligible employees the best opportunity to 
successfully pursue their claims.
    As a result, I too propose that section 4323(d)(1) be amended to 
remove the current paragraphs denoted as (2) and (3) and replace them 
with a new paragraph (2) that reads as follows:

    (2) In the case of an action against a State (as an employer) or a 
    private employer by a person, the action may be brought in a 
    district court of the United States or state court of competent 
    jurisdiction.
the united states code must be amended to extend userra protections to 
        employees of the transportation security administration.
    USERRA does not presently apply to employees of the Transportation 
Security Administration (TSA). TSA is typically exempt from employment 
discrimination statutes. This Congressional policy decision, however, 
failed to weigh the importance of USERRA protection to our national 
defense and security interests. USERRA is a unique statute. It requires 
unique administration and unique enforcement mechanisms. The Act is 
designed specifically to encourage enrollment in the uniformed services 
of this country. This has never been more vital. The military Reserves 
and National Guard are currently fully operational and members of these 
units compose a significant portion of our active duty forces deployed 
across the globe. Under these circumstances, it is absolutely 
imperative that USERRA protection is extended to each and every 
civilian-employed member of the uniformed services; including TSA 
employees.
    Therefore, I propose that 38 U.S.C. section 4303(5) be amended to 
read as follows:

    (5) The term ``Federal executive agency'' includes the United 
    States Postal Service, the Postal Rate Commission [Postal 
    Regulatory Commission], any non-appropriated fund instrumentality 
    of the United States, the Transportation Security Administration, 
    any Executive agency (as that term ifs defined in section 105 of 
    title 5 [5 USCS Sec. 105]) other than an agency referred to in 
    section 2302 (a)(2)(C)(ii) of title 5 [5 USCS 
    Sec. 2302(a)(2)(C)(ii)], and any military department (as that term 
    is defined in section 102 of title 5 [5 USCS Sec. 102]) with 
    respect to the civilian employees of that department.

    The proposed changes outlined above are pivotal in advancing our 
national defense interests and achieving parity and equity in the 
workplace. USERRA was designed and implemented to provide comprehensive 
anti-discrimination protection for military personnel in civilian 
employment. In order to effectuate this congressional mandate, we must 
improve opportunities for injured veterans to pursue their rights under 
the Act, increase the statutory mechanisms that serve as deterrents to 
unlawful employer behavior, and create uniformity in the law's 
protections to all USERRA-eligible employees, regardless of their 
employer.
    USERRA should no longer be a second-class anti-discrimination 
statute; we owe it to our service men and women to provide them with 
the premier anti-discrimination law in the land. We must encourage 
military service in our all-volunteer forces and ensure that those who 
have served are properly cared for upon their return home, now more 
than ever. The proposed changes represent the least restrictive means 
possible for effectuating legitimate equality in the workplace and 
guaranteeing that no one other than a USERRA violator will bear the 
costs of the improved enforcement.

    Chairman Akaka. Thank you. Thank you very much, Mr. Tully.
    I want you to know that we appreciate your thoughts and 
various recommendations for improvements in USERRA and that we 
will be looking into those as we draft future legislation on 
the subject. It is astounding for me to hear that you had 4,802 
cases to deal with along this line.
    Mr. Tully, I would like your answer to the same question as 
I asked other witnesses this morning. I am deeply concerned 
that individuals who were sent to battle by the Federal 
Government are put in the position of having to do battle with 
that same government in order to regain their jobs when they 
return home. In your experience, can you think of any reason 
that the Federal Government as an employer would have any 
problems with complying with USERRA for its employees? In your 
experience, are the problems facing servicemembers when they 
return to claim their jobs the position itself, or benefits 
associated with that position?
    Mr. Tully. Mr. Chairman, just to point out, it is 1,802 
clients that we had during the demonstration project. I wish we 
had 4,000.
    Chairman Akaka. Thank you for that correction.
    Mr. Tully. I believe the No. 1 problem is ignorance of the 
law. Many of the Federal supervisors are not up to date on the 
ins-and-outs of USERRA and the escalator principles. That is 
why one of my proposals is giving the Office of Special Counsel 
disciplinary powers. The first time the Office of Special 
Counsel brings a disciplinary action against a supervisor who 
violated USERRA, that will dramatically decrease the number of 
USERRA violations you have in the Federal Government. And I 
think as part of the demonstration project, not only getting 
the monetary damages that are due to a servicemember, but 
bringing about justice to the supervisors who inflicted the 
harm on the person is critical. Right now, there is no 
mechanism to punish a Federal supervisor who violates USERRA.
    And I believe the second problem is budgetary. Many of the 
Federal agencies are being crunched due to financial 
constraints. If they lose somebody, like, for example, the 
Chief of Staff for the Department of Labor VETS, somebody else 
has to fill that spot and some positions may not have to be 
filled on an overtime basis, but in the Federal law enforcement 
communities, they have to fill those posts. So for my position, 
for example, as a corrections officer, my post when I left had 
to be filled and that cost the Bureau of Prisons my salary plus 
time-and-a-half for somebody else to fill it, and that builds 
up a little bit of animosity.
    Chairman Akaka. Mr. Tully, your testimony presents an 
interesting perspective on the jurisdictional question. It 
could tend to lead one to conclude that there are hundreds of 
USERRA violations and cases out there that are not tracked or 
even recorded or even cared about. Do you believe that this is 
the situation?
    Mr. Tully. Absolutely, Mr. Chairman. This GAO report only 
dealt with OSC and DOL-VETS. There is a third option which was 
not incorporated in the GAO report at all, which is private 
attorneys. Under USERRA, a servicemember who believes he has a 
discrimination allegation does not have to go to DOL-VETS, does 
not have to go to the Office of Special Counsel. They can 
retain private counsel. And the figures from the Merit Systems 
Protection Board show that the overwhelming majority of 
prosecutions by Federal executive employees has been done 
either pro se or by private counsel like myself. So the 
snapshot that GAO is taking is of a fraction of the overall 
USERRA violation cases in the Federal sector.
    Chairman Akaka. Well, I want to thank you so much for 
traveling here and joining us and providing your testimony and 
your responses to our questions. I want to wish you well on 
your deployment and thank you so much for your service to our 
country.
    Mr. Tully. Thank you, Mr. Chairman.
    Chairman Akaka. Thank you so much, everyone, for being here 
and being a part of this hearing.
    This hearing is adjourned.
    [Whereupon, at 11:08 a.m., the Committee was adjourned.]
                            A P P E N D I X

                              ----------                              


Prepared Statement of Philip Pope, Deputy Executive Director, National 
        Committee for Employer Support of the Guard and Reserve
    Phil Pope became the Deputy Executive Director, National Committee 
for Employer Support of the Guard and Reserve in January 2005. Phil 
came to NCESGR after serving over 33 years in the United States Army. 
He holds undergraduate and graduate degrees from Auburn University and 
a master's degree from the National Defense University.
    He entered the Army in 1971 as a private and served as a rifleman, 
90mm recoilless rifle gunner, and squad leader. In 1977, as a sergeant, 
he entered Officer Candidate School from the North Carolina Army 
National Guard and was commissioned a Lieutenant of Infantry in 1978.
    Mr. Pope's assignments include tours in the United States, Europe, 
and Asia. He commanded Company B, 3d Battalion, and 11th Infantry, in 
the 5th Infantry Division, at Fort Polk, Louisiana, from May 1981 to 
December 1982. From 1986 to 1989, he served as a Tactical Officer at 
the United States Military Academy, West Point, New York. In 1990, he 
was assigned to the Office of the Deputy Chief of Staff, Operations, 
United States Army Europe (USAREUR), where he served as an Arms Control 
Officer. During Operations Desert Shield and Desert Storm, he served as 
the Operations Officer (S3) for the 7th Battalion, 6th Infantry, 1st 
Armored Division. After Desert Storm, he returned to Germany and served 
as an Operations Officer in USAREUR Headquarters. In 1992, Mr. Pope was 
assigned as the Operations Officer (S3) for the 1st Battalion, 6th 
Infantry, 3d Infantry Division. Upon completion of his assignment in 
Germany, Mr. Pope assumed the duties as Chief, Regional Training Team, 
1st Brigade, 78th Division (Exercise) at Fort Dix, New Jersey. From 
1994 to 1996, he commanded the 1st Battalion, 9th Infantry, 2d Infantry 
Division at Camp Hovey, Korea. In 1998, He returned to Europe, where he 
served as the Deputy Chief of Staff, Operations (G3), 1st Infantry 
Division, and as the Assistant Deputy Chief of Staff, Operations (DG3) 
V Corps. From August 2000 through August 2002 he was the Garrison 
Commander at Fort Riley, Kansas. Mr. Pope has served two tours on the 
Army Staff working on the G-3 staff and serving as the Legislative 
Assistant to the Secretary of the Army. His last assignment was as the 
Senior Military Assistant to the Assistant Secretary of Defense, 
Reserve Affairs.
    Mr. Pope is a graduate of the Infantry Officer Advanced Course, the 
Command and General Staff College, and the National War College. His 
awards and decorations include the Defense Superior Service Medal, 
Legion of Merit with 2 Oak Leaf Clusters, the Bronze Star with ``V'' 
Device and Oak Leaf Cluster, the Meritorious Service Medal with Silver 
Oak Leaf, the Combat Infantryman's Badge, Ranger Tab, and the 
Parachutist Badge. Mr. Pope also is a recipient of the Order of Saint 
Maurice and a 2002 inductee in the Army Officer Candidate School Hall 
of Fame.
    Chairman Akaka and Members of the Committee: thank you for the 
invitation to offer my perspective on issues relating to the Uniformed 
Services Employment and Reemployment Rights Act (USERRA) program. Your 
invitation letter asked me to address the findings set forth in the 
report issued by the Government Accountability Office (GAO) on July 20, 
2007, entitled ``Improved Quality Controls Needed over Servicemembers' 
Employment Rights Claims at DOL'' (GAO-07-907). This report looked at 
the results of a demonstration project which authorized the Office of 
Special Counsel, rather than the Department of Labor, to receive and 
investigate certain USERRA claims. You asked us to provide our view on 
what might be learned from an extension of the demonstration project 
and the merits of conducting a follow-up review. I will give you my 
agency's position on that report.
    As you know, the Uniformed Services Employment and Reemployment 
Rights Act of 1994 protects the employment and reemployment rights of 
Federal and non-Federal employees who leave their employment to perform 
military service. The role of informing servicemembers and employers 
about this law, and of enforcing it fall to several different 
government organizations.
    Employer Support of the Guard and Reserve (ESGR) is a Department of 
Defense organization which operates a proactive program directed at 
U.S. employers, employees, and communities that ensures understanding 
and appreciation of the role of the National Guard and Reserve in the 
context of the DOD Total Force Policy. We do this by recognizing 
outstanding support, increasing awareness of the law, and resolving 
conflicts through informal mediation.
    Gaining and maintaining employer support requires a strong network 
comprised of both military and civilian-employer leaders that is 
capable of providing communication, education and exchange of 
information. ESGR works with the Reserve component leadership from each 
service, appropriate government organizations such as the Department of 
Labor's Veterans' Employment and Training Service (DOL-VETS), and the 
Small Business Administration, and industry associations such as the 
Chamber of Commerce and others, to create a broad-based, nationwide 
support for our troops.
    It is important to note that ESGR is not an enforcement agency, and 
we do not have statutory authority to offer formal legal counsel or to 
participate in any formal investigative or litigation process. Our part 
in the USERRA issue is to inform and educate our customers--
servicemembers and their civilian employers--regarding their rights and 
responsibilities under the USERRA statute, and to also provide an 
informal mediation service. We have over 1,000 trained volunteer 
ombudsmen throughout the country and a national call center in 
Arlington, Virginia, to provide this service. Our call center received 
over 13,000 requests for assistance during FY07. Of those requests, 
10,742 were informational in nature, that is, they were sufficiently 
resolved by providing information about the law. The remaining 2,374 
were assigned as cases to our ombudsmen. Through a Memorandum of 
Agreement (MoA) between ESGR and DOL-VETS, ESGR refers to DOL-VETS any 
cases we are unable to successfully mediate within 14 days. During 
FY07, ESGR referred 416 cases to DOL-VETS. It should be further noted 
that the ESGR mediation process is now covered by the Administrative 
Dispute Resolution Act of 1996. This statute is fairly restrictive 
regarding the protection of privacy for all parties involved in the 
dispute. Thus, even for cases ESGR refers to the DOL-VETS under our 
MoA, ESGR is unable to pass on any case information exchanged between 
claimants and ESGR ombudsmen without the written consent of all parties 
involved in the mediation.
    ESGR's mandate ends at this point in the USERRA resolution process. 
As I understand it, absent the mandated demonstration project between 
DOL-VETS and Office of Special Counsel (OSC), DOL investigates and 
attempts to resolve claims filed by servicemembers, and if not 
successful, DOL informs the Federal claimants that they may request to 
have their claims referred to the OSC, and informs non-Federal 
claimants that they may engage the Department of Justice. Of course, 
all parties reserve the right to engage private counsel at any time.
    The report from the GAO concerned the specific investigation 
process for Federal claimants, that is, servicemembers who are 
employees of, prior employees of, and applicants to Federal executive 
agencies. Under the demonstration project, the DOL and OSC essentially 
divided Federal sector USERRA claimants. The investigative and 
administrative responsibilities for the Federal sector claims that 
stayed with DOL remained the same, while cases assigned to OSC under 
the project were investigated and administered by OSC.
    You asked us to provide our view on what might be learned from an 
extension of the demonstration project.
    As I stated earlier, ESGR's role is primarily to inform and educate 
servicemembers and their employers regarding their rights and 
responsibilities under USERRA, and to offer informal mediation to both. 
ESGR does not have any statutory authority to investigate or litigate 
USERRA complaints, nor do we differentiate between Federal and non-
Federal claimants. As such, our primary interest in this demonstration 
project was to gain further understanding of the investigative process 
so we could inform our customers, and to see if either of the two 
models used for processing claims--a local process by DOL-VETS offices 
throughout the country or a centralized, national process by the OSC--
was more effective in providing resolution.
    Based on the DOL agreement with the GAO's findings, I believe the 
demonstration project was a success and all agencies involved in the 
USERRA resolution process will gain further efficiencies by 
incorporating the GAO recommendations.
    We also continue to believe that the original USERRA process is the 
process that will continue to best serve the interests of 
servicemembers, whereby the Department of Defense, through the ESGR 
organization, provides informal mediation, and the Department of Labor 
continues to have the statutory authority to investigate USERRA claims. 
The ESGR and DOL will, of course, continue to collaborate to the 
fullest extent possible to ensure the speediest and most effective 
resolution of USERRA challenges.
    For our part, ESGR will continue its mission to gain and maintain 
employer support by recognizing outstanding support, increasing 
awareness of the law, and resolving conflicts through informal 
mediation, and by cooperating to the fullest extent allowable with the 
Department of Labor.
    I hope that I have been able to clarify the role played by the 
Employer Support of the Guard and Reserve in helping to explain, and 
where applicable, mediate, issues involving the Uniformed Services 
Employment and Reemployment Rights Act.

    Thank you.