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Test fails to resolve USERRA claims issues

Two government agencies fighting for sole control of investigations into National Guard and Reserve members’ complaints about violations of their federal employment rights took their cases before the Senate Veterans’ Affairs Committee on Wednesday.

And lawmakers are pondering whether a demonstration project designed to help them choose which agency should have that job actually demonstrated anything.

The demonstration project, which began Feb. 8, 2005, divided all reservists’ complaints relating to federal employers’ violations of the Uniformed Services Employment and Re-employment Rights Act between the Labor Department and the Office of Special Counsel. Those with Social Security numbers ending in odd numbers were referred to OSC; those with even numbers went to the Labor Department.

A Government Accountability Office report issued in July did not reach any conclusion about which agency did a better job with the cases, citing problems with the data submitted by both.

“Unfortunately, it is not clear to me that results of the demonstration project and the GAO report provide sufficient evidence to permit this committee to decide on the proper jurisdiction of these claims,” said Sen. Daniel Akaka, D-Hawaii, chairman of the Senate Veterans’ Affairs Committee. “I believe that a good case can be made for retaining jurisdiction by both.”

The demonstration project was ordered by Congress after reservists complained about the length of time that the Labor Department’s Veterans Employment and Training Service took to investigate complaints alleging federal employers had violated their rights under USERRA.

The test was authorized through Sept. 30 of this year but was recently extended to Nov. 16.

“I believe that the demonstration project has served its purpose and should be terminated,” said Charles Ciccolella, assistant secretary of labor for veterans’ employment and training. He said the GAO report shows the Labor Department resolves cases faster than the Office of Special Counsel. And with the Labor Department having a presence in every state, its officials are more likely to go face-to-face with federal employers in resolving issues.

He said department officials have made changes in their processes as a result of the GAO findings, and Labor and the OSC also have been cross-training during the demonstration project and working together more closely on cases.

A second review is important in such cases, he said. Under the longstanding way of operating, Labor would investigate a case and attempt to resolve it, and if it warranted, refer it to the OSC. That office then conducts its own investigation and determines if a case should be brought before the federal Merit Systems Protection Board.

In the half of the cases taken directly to OSC under the demonstration, there is only one agency investigation.

OSC Deputy Special Counsel James Byrne told the senators, however, that cases that previously took several years to reach no positive conclusion now routinely take well under a year for OSC to investigate and resolve favorably. Giving OSC exclusive jurisdiction over USERRA federal-sector claims would remove the burden from the Labor Department 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.”

As such, the benefit to service members would be doubly positive both for service members with federal- and private-sector claims, he said, since USERRA claims investigated by Labor are forwarded to the Justice Department for prosecution if Labor feels that is warranted.

George Stalcup, director of strategic issues for the GAO, said that if lawmakers decide to extend the demonstration project, clear objectives should be set. Legislation creating the current demonstration was not specific in terms of the objectives to be achieved, he said.

Mathew Tully, an Army Reserve officer and Albany, N.Y.-based attorney who represents many reservists with federal-sector USERRA complaints, told the committee that GAO should also include in its analysis the number of service members who choose not to go through Labor or OSC but instead represent themselves or hire attorneys to go directly to the Merit Systems Protection Board.

Tully, who writes a legal column for the Military Times newspapers, said that since the demonstration project began, his firm has represented 1,802 reservists in federal USERRA cases, taking an average of about three weeks to file a claim with the board. The board adjudicates it within 120 days, he said.

In contrast, GAO found that the Labor Department investigated 166 unique claims, probably taking an average of 53 to 86 days. During the same period, OSC received 269 claims and took an average of 115 days to process them.

Tully’s firm does not charge the vast majority of service members for representation because there is a discretionary provision in law that requires the federal agency involved to pay attorney fees on top of any settlement.

If the choice is between the Labor Department and OSC, Tully said he thinks cases should be given to OSC and a mechanism should be put in place to punish the supervisors who violates USERRA.