oversight

Veterans' Reemployment Rights: Department of Labor and Office of Special Counsel Need to Take Additional Steps to Ensure Demonstration Project Data Integrity

Published by the Government Accountability Office on 2012-09-10.

Below is a raw (and likely hideous) rendition of the original report. (PDF)

United States Government Accountability Office
Washington, DC 20548




              September 10, 2012

              The Honorable Patty Murray
              Chairman
              The Honorable Richard Burr
              Ranking Member
              Committee on Veterans’ Affairs
              United States Senate

              The Honorable Jeff Miller
              Chairman
              The Honorable Bob Filner
              Ranking Member
              Committee on Veterans’ Affairs
              House of Representatives

              Subject: Veterans’ Reemployment Rights: Department of Labor and Office of Special Counsel
              Need to Take Additional Steps to Ensure Demonstration Project Data Integrity

              Congress enacted the Uniformed Services Employment and Reemployment Rights Act of 1994
              (USERRA) 1 to protect the employment and reemployment rights of federal and nonfederal
              employees when they leave their employment to perform military or other uniformed service and
              return to civilian employment after that service. 2 Among other rights, servicemembers who meet
              the statutory requirements are entitled to reinstatement to the positions they would have held if
              they had never left their employment or to positions of similar seniority, status, and pay. With the
              drawdown in Iraq complete and the drawdown in Afghanistan underway, thousands of current
              and former military servicemembers are undergoing a transition from their military service back
              to their civilian employment, thereby increasing the importance of USERRA to help facilitate this
              transition.

              Under USERRA, an employee or applicant for employment who believes that his or her
              USERRA rights have been violated may file a claim with the Department of Labor’s (DOL)
              Veterans’ Employment and Training Service (VETS), which investigates and attempts to resolve


              1
               Pub. L. No. 103-353, 108 Stat. 3149 (Oct. 13, 1994) (codified at 38 U.S.C. §§ 4301-4335). USERRA is the most
              recent in a series of laws protecting veterans’ employment and reemployment rights going back to the Selective
              Training and Service Act of 1940. Pub. L. No. 783, 54 Stat. 885, 890 (Sept. 16, 1940).
              2
               In addition to those serving in the armed forces and the Army and Air National Guards (when engaged in active duty
              for training, inactive duty training, or full-time National Guard duty), USERRA covers the commissioned corps of the
              Public Health Service and other persons designated by the President in time of war or national emergency.




              Page 1                                                                  GAO-12-860R Veterans’ Reemployment Rights
the claim. If DOL’s VETS cannot resolve the claim and the servicemember is a federal
government employee or applicant to a federal agency, DOL is to inform the claimant of the
right to have his or her claim referred to the Office of Special Counsel (OSC) 3 for further review
and possible OSC representation before the Merit Systems Protection Board (MSPB) or that
they may file a complaint directly with the MSPB.

Under a demonstration project established by the Veterans Benefits Improvement Act of 2004
(VBIA), 4 from February 8, 2005, through December 31, 2007, OSC was authorized to receive
and investigate certain USERRA claims, while DOL continued its investigative role for others. In
2007, we evaluated the demonstration project and made recommendations to DOL to help
establish internal controls for claims review, claimant notification, and data management. 5

The Veterans’ Benefits Act of 2010 (VBA) directed DOL and OSC to establish a second
demonstration project (36-month duration) for receiving, investigating, and resolving USERRA
claims filed against federal executive agencies. 6 As in the first demonstration project, DOL and
OSC each receive claims and are each authorized to investigate and seek corrective action for
those claims. 7 The VBA also required that we evaluate how DOL and OSC designed the
demonstration project and assess their relative performance during and after the demonstration
project. In June 2011, we reported on the methods and procedures that DOL and OSC had
agreed to establish for the demonstration project and recommended that both agencies take a
number of steps to ensure a comparable process and sufficiently reliable data. 8 In response to
our recommendations, DOL neither agreed nor disagreed with our recommendations, but
discussed actions underway to address the recommendations. OSC generally concurred with
our recommendations.

This first interim assessment of the demonstration project (1) determines the number of
USERRA demonstration project claims DOL and OSC have received and resolved from August
9, 2011 (start of the demonstration project), to May 9, 2012, and additional DOL and OSC data
reportable for the demonstration project to date, and (2) assesses DOL and OSC


3
 OSC is an independent investigative and prosecutorial agency with the primary mission of protecting the
employment rights of federal employees and applicants for federal employment.
4
 Pub. L. No. 108-454, §204, 118 Stat. 3598, 3606-08 (Dec. 10, 2004). Under VBIA, the demonstration project was
originally scheduled to end on September 30, 2007, but through a series of extensions ran through December 31,
2007.
5
 See GAO, Military Personnel: Improved Quality Controls Needed over Servicemembers’ Employment Rights Claims
at DOL, GAO-07-907 (Washington, D.C.: July 20, 2007).
6
Pub. L. No. 111-275, § 105, 124 Stat. 2864, 2868-70 (Oct. 13, 2010).
7
  DOL is authorized to investigate and seek corrective action for those claims filed against federal executive agencies
if the servicemember’s Social Security number (SSN) ends in an even number, and OSC is authorized to investigate
and seek corrective action for USERRA claims against federal executive agencies if the servicemember’s SSN ends
in an odd number. If a claim does not contain an SSN, VETS will assign a claim number based on the date of the
month the claim is received. For example, claims filed on an odd-numbered date will be assigned an odd case
number and forwarded to OSC; claims filed on an even-numbered date will be assigned an even case number and be
investigated by VETS. Also, under the demonstration project, OSC is authorized to handle any “mixed claims” in
which a claimant files a USERRA claim against a federal executive agency and also brings a related prohibited
personnel practice claim. There are 12 prohibited personnel practices including discrimination, retaliation, or
unauthorized preference or improper advantage. 5 U.S.C. § 2302.
8
 See GAO, Veterans’ Reemployment Rights: Steps Needed to Ensure Reliability of DOL and Special Counsel
Demonstration Project’s Performance Information, GAO-11-312R (Washington, D.C.: June 10, 2011).




Page 2                                                                   GAO-12-860R Veterans’ Reemployment Rights
implementation of our recommendations on the demonstration project’s design, including
ensuring data reliability, and their adherence to other requirements in the VBA.

To determine the number of USERRA demonstration project claims that DOL and OSC received
and resolved and what additional data is reportable to date, we reviewed and analyzed data
from DOL’s and OSC’s case tracking system for cases opened between August 9, 2011, and
May 9, 2012. We also interviewed DOL and OSC staff on the data they plan to report for the
demonstration project.

To assess the extent to which DOL and OSC have implemented our recommendations on the
demonstration project’s design, we reviewed the recommendations from our report on the
design of the project, interviewed DOL and OSC staff on the steps taken to implement the
demonstration project, and reviewed supporting documentation and the requirements of the
demonstration project set forth in the VBA. To assess the reliability of the data systems used to
collect and track performance data for the demonstration project, we reviewed relevant
documentation and interviewed DOL and OSC staff. We also tested the data collected by
reviewing the data for errors, missing entries, duplicate entries, and other logic testing and also
selected a random sample of 12 cases that had been opened and closed at each agency and
traced certain data elements from those cases in DOL’s and OSC’s case tracking systems to
source case files.

We conducted this performance audit from April 2012 to September 2012 in accordance with
generally accepted government auditing standards. Those standards require that we plan and
perform the audit to obtain sufficient, appropriate evidence to provide a reasonable basis for our
findings and conclusions based on our audit objectives. We believe that the evidence obtained
provides a reasonable basis for our findings and conclusions based on our audit objectives.

We shared the findings of our interim assessment of the status to date of DOL and OSC
implementation of the demonstration project with both Senate and House committee staff. This
report transmits the briefing slides provided to Senate and House committee staff, and are
included in enclosure I.

Summary of Findings
DOL and OSC began the USERRA demonstration project on August 9, 2011, meeting the time
frame (within 60 days of our report on the project’s design) required by the VBA. From August 9,
2011, to May 9, 2012, DOL has received 87 USERRA demonstration project cases and OSC
has received 123 cases. See table 1 for cases received and resolved (i.e., claim granted or
claim resolved in claimant’s favor) and average processing times in the investigation phase
between August 9, 2011, and May 9, 2012.

Table 1: Cases Received and Resolved Favorably and Average Processing Times in the Investigation Phase
between August 9, 2011, and May 9, 2012

                                    Number of     Number of     Number of             Average     Average processing
                                        cases         cases cases resolved     processing time          time of cases
                                     received        closed      favorably     of closed cases     resolved favorably
 Department of Labor                        87           78            15             36.6 days             51.1 days
 Office of Special                          123          46             8             79.1 days             83.9 days
 Counsel
Source: GAO analysis of DOL and OSC data.




Page 3                                                                       GAO-12-860R Veterans’ Reemployment Rights
The data reported in this study cover only 9 months of the demonstration project and do not
represent the overall results of the 36-month project nor are we drawing any conclusions of the
relative performance at either agency. As both agencies continue to collect and track data, we
will be able to provide an in-depth evaluation of relative performance. We did not report
customer satisfaction survey data in this assessment due to the short amount of time the survey
has been available to claimants and the low survey response rate. Also, while both agencies
track time spent on cases on an ongoing basis, OSC only compiles cost data on those cases
that have been closed while DOL compiles cost data on open and closed cases. Therefore, we
plan to evaluate and compare the relative cost data during later assessments of the
demonstration project.

In June 2011, we made five recommendations to DOL and OSC on the design of the
demonstration project jointly agreed by them. Since then we have continuously reviewed the
steps both agencies have taken to implement the five recommendations.

In August 2011, DOL and OSC provided documentation to us on the steps both agencies had
taken since June 2011 to implement the recommendations. We reviewed the documentation
provided by both agencies in August 2011 and determined that two of the recommendations
had been implemented at that time, while the remaining three had not yet been fully
implemented prior to the start of the demonstration project on August 9, 2011. The two
recommendations implemented by DOL and OSC prior to the start of the demonstration project
in August 2011 were to (1) establish a comparable two-phase process at both agencies and
(2) establish a common set of case outcomes. To satisfy the first recommendation, OSC had
developed a plan to establish and implement a two-phase process, and DOL officials agreed
that OSC’s process is comparable to DOL’s process. To satisfy the second recommendation,
OSC and DOL provided us with a crosswalk that identified similar case outcomes at each
agency for USERRA demonstration project cases. Although we would have preferred that all
five recommendations be fully implemented prior to the start of the demonstration project we did
not believe that the remaining actions needed on the three outstanding recommendations
warranted delaying the August 2011 start of the demonstration project.

This first interim assessment of the demonstration project assesses the steps DOL and OSC
have taken since August 2011 to implement the three outstanding recommendations that we
determined were not fully implemented when we reviewed DOL and OSC documentation in
August 2011. The outstanding recommendations not fully implemented prior to the start of the
demonstration project in August 2011 were to (1) establish comparable methods for
administering a customer satisfaction survey; (2) establish comparable methods for tracking the
time spent on and costs of USERRA demonstration project cases; and (3) agree upon a
controls plan and implementation strategy for ensuring the integrity, reliability, and accuracy of
performance data for the USERRA demonstration project. Based on this interim assessment of
the steps taken by DOL and OSC since August 2011, we have determined that DOL and OSC
have now fully implemented the three outstanding recommendations from our assessment of
the demonstration project’s design, in line with the requirements in the VBA. However, while this
interim assessment found that DOL and OSC fully implemented the three outstanding
recommendations, both agencies could take additional steps to improve data integrity beyond
what we recommended in our assessment of the demonstration project’s design in June 2011.
DOL and OSC actions to implement the three outstanding recommendations are described in
detail in the following paragraphs.




Page 4                                                      GAO-12-860R Veterans’ Reemployment Rights
•   DOL and OSC have established and administered, on an on-going basis, a customer
    satisfaction survey by entering into an interagency agreement with the Office of Personnel
    Management (OPM) as survey administrator, which provides comparable information,
    includes a survey plan and protocols for contacting respondents, in line with the
    recommendation from our assessment of the demonstration project’s design. The customer
    satisfaction survey was first sent out on April 19, 2012, to all claimants whose cases had
    been closed from August 9, 2011, to April 19, 2012, 8 months after the start of the
    demonstration project. Since then, DOL and OSC have sent the survey on an ongoing basis
    after cases are closed. As of May 22, 2012, DOL and OSC have achieved a 28.2 and 46.3
    percent response rate for their respective customer satisfaction surveys.

    While the survey has been established and deployed, the response rates for the surveys
    account for less than half of claimants whose cases have been closed. In addition, the
    survey response rates appear to present a response bias in the results as claimants who
    indicated that they had a favorable case outcome in the survey responded at higher rates
    than exist in the total population of closed cases, making the survey results generally more
    positive. However, DOL and OSC have no plans to assess the reasons that a claimant did
    not respond to the survey, although OPM stated that it may be able to conduct such an
    analysis for DOL and OSC but neither agency has requested it. In guidance to executive
    branch agencies administering surveys, the Office of Management and Budget states that
    agencies should try to achieve the highest practical rates of response and recommends an
    analysis of nonresponse bias if the overall survey response rate is less than 80 percent.

    While the response rate achieved is low, the results of the survey may still provide
    information indicating opportunities for DOL and OSC to improve their USERRA claims
    processing. For example, the customer satisfaction survey asked respondents to indicate
    which statement best describes the outcome of their complaint and, as of May 22, 2012, 5 of
    the 22 DOL claimants and 3 of the 18 OSC claimants said they did not know the outcome of
    their claim after their claim was investigated by DOL or OSC. 9 This may indicate that DOL
    and OSC can take additional steps to communicate the outcome of USERRA claims. The
    customer satisfaction survey asks 18 questions of claimants about their customer
    experience with DOL and OSC, including the thoroughness of the investigation and clarity of
    written and oral communication. Both agencies said they would consider modifying their
    USERRA claims processing if they identify areas or trends from reviewing the survey results
    that require changes.

•   DOL and OSC also established cost accounting systems by the start of the demonstration
    project on August 9, 2011, to collect and track actual time spent processing USERRA
    demonstration project cases, implementing the recommendation from our assessment of the
    demonstration project’s design. The cost accounting systems allow both agencies to
    compute the average cost of USERRA cases across the investigation and legal review
    phases, as well as in the aggregate. While the cost accounting systems developed at each
    agency vary somewhat in the way they track time spent, both systems track actual salary,
    benefits, and indirect cost components by applying an hourly rate that includes those
    components for each specific employee who works on and tracks time spent on
    demonstration project cases.




9
One OSC claimant who responded to the customer satisfaction survey did not respond to this question.




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•   Both agencies have documented the steps they take to ensure the validity and reliability of
    the performance data to be reported during the demonstration project in line with the
    recommendation from our assessment of the demonstration project’s design. Based on our
    assessment of the data—namely customer satisfaction survey data, cost data, and case-
    tracking data—we found that the performance data that both agencies report is sufficiently
    reliable for the purposes of evaluating relative performance during the demonstration
    project.

    When reviewing DOL and OSC cost data, we found a number of errors related to compiling
    the data that the agencies had to address. While DOL and OSC described the steps they
    take to review the cost data entered by staff, neither agency has established and
    documented procedures for checking the compilation of the data when reporting it during the
    demonstration project. Such procedures may help DOL and OSC identify errors when
    reporting cost data in the future, as the cost accounting systems at DOL and OSC are
    relatively new and both agencies reported the cost data to us for the first time during this
    assessment. In addition, when reviewing data from OSC’s case tracking system, we found a
    number of discrepancies and errors in the data including cases that were missing certain
    data elements or were entered incorrectly. Both DOL and OSC identified the issues causing
    these errors, corrected the issues in their data systems to ensure reliable data going
    forward, and provided us with updated and corrected data during our assessment.

See enclosure I for a more detailed discussion of our analysis.

Conclusions
Both DOL and OSC have established methods and procedures that should allow them to report
comparable and reliable performance data for the demonstration project, as required by the
VBA and in accordance with our recommendations on the demonstration project’s design.
However, DOL and OSC could take additional steps to improve data integrity beyond what we
recommended in our assessment of the demonstration project’s design in June 2011. For
example, after reviewing the customer satisfaction survey data, DOL and OSC may want to
consider additional steps to increase the response rate and address any potential survey
response bias. In addition, for the cost accounting systems, DOL and OSC could establish and
document procedures for compiling and reporting the cost data during the demonstration
project. These changes would increase the value of the data when evaluating relative
performance and would ensure data reliability going forward with the demonstration project. In
subsequent assessments of the demonstration project, we plan to evaluate the performance
data in depth as DOL and OSC continue to collect and track data.

Recommendations for Executive Action
We recommend that the Secretary of Labor direct the Assistant Secretary for Veterans’
Employment and Training, and that the Special Counsel, take the following two actions:

•   To ensure that customer satisfaction survey data provides value when reviewing the relative
    performance of DOL and OSC during the demonstration project, DOL and OSC should,
    working with OPM, (1) consider additional efforts to increase the response rate, such as but
    not limited to additional follow-ups, contacting the claimant via other modes, or notifying the
    claimant of the survey initially when investigating the claim, and (2) conduct a nonresponse
    analysis to account for any response bias in the survey data.




Page 6                                                       GAO-12-860R Veterans’ Reemployment Rights
•   To ensure that both agencies present reliable cost data for USERRA demonstration project
    cases going forward, DOL and OSC should establish and document procedures for
    checking the compilation of cost data when they report it during the demonstration project.

Agency Comments and Our Evaluation
We provided a draft of this report to the Special Counsel and the Secretary of Labor for their
review and comment. In written comments, which are included in enclosure II, the Special
Counsel neither agreed nor disagreed with our recommendations but discussed actions that it is
taking to address the recommendations. In commenting on our recommendation to ensure that
customer satisfaction survey data provides value, OSC said it is collaborating with DOL on
efforts to increase the response rate for the customer satisfaction survey and to conduct a
nonresponse analysis. In commenting on our recommendation to establish and document
procedures for checking the compilation of cost data when they report it, OSC said it is
reviewing its procedures for compiling and reporting cost data during the demonstration project.
OSC also stated that it is committed to making any necessary changes to ensure the
demonstration project satisfies Congress’s goals.

In addition to providing comments on our two recommendations, OSC shared its views on the
relative resources available at each agency and noted that our report did not address relative
resources or staffing levels at DOL and OSC. OSC stated that for the first 6 months of the
period covered by our report, it did not have funding to support its increased USERRA mission
requirements and that it is important to consider resources when assessing the relative
performance of DOL and OSC. As we describe in this report, the performance data presented in
this interim assessment cover only 9 months and not the overall results of the 36-month
demonstration project. The data presented cover the number of cases received and resolved
favorably and average processing times in the investigation phase between August 9, 2011, and
May 9, 2012, but we do not make any conclusions about the relative performance of DOL and
OSC from the data in this report. In subsequent assessments of the demonstration project, we
plan to evaluate the performance data, including capacity at each agency, in depth as DOL and
OSC continue to collect and track data.

In written comments, which are included in enclosure III, the Deputy Assistant Secretary for
Veterans’ Employment and Training neither agreed nor disagreed with our recommendations
but discussed actions that DOL plans to take to implement the recommendations.

In commenting on our recommendation to consider additional efforts to increase the response
rate of the customer satisfaction survey and to conduct a nonresponse analysis to account for
any response bias in the survey data, DOL said it has discussed with OPM options for
increasing the response rate of the customer satisfaction survey and conducting an analysis of
the characteristics of the claimants who did not respond to the survey to determine if there is a
nonresponse bias. DOL also said that since the customer satisfaction survey methodology must
be consistent at both DOL and OSC, DOL will coordinate with OSC regarding any changes it
makes to increase the response rate and to account for nonresponse bias.

In commenting on our recommendation to establish and document procedures for checking the
compilation of cost data, DOL said it will initiate internal audits on a quarterly basis when
compiling the cost data into report format. In addition, each quarter, management and
investigative staff will review the report for any inconsistent or questionable data and any
identified data issues will be addressed, corrected, and reported each quarter as necessary.




Page 7                                                      GAO-12-860R Veterans’ Reemployment Rights
We will send copies of this report to the Secretary of Labor and to the Special Counsel, and
other interested parties. This report will also be available at no charge on GAO’s website at
http://www.gao.gov.

If you have any questions on this report, please contact me at (202) 512-2717 or
jonesy@gao.gov. Contact points for our offices of Congressional Relations and Public Affairs
may be found on the last page of this report. Key contributors to this are listed in Enclosure IV




Yvonne D. Jones
Director
Strategic Issues

Enclosures –4




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Enclosure I: Briefing Slides




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Enclosure II: Comments from the Office of Special Counsel




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Enclosure III: Comments from the Department of Labor




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Enclosure IV: GAO Contact and Staff Acknowledgments

GAO Contact
Yvonne D. Jones, (202) 512-2717 or jonesy@gao.gov

Staff Acknowledgments
In addition to the contact listed above, key contributors to this report were Trina V. Lewis,
Assistant Director; Jason Vassilicos, Analyst-In-Charge; Gerard Burke; Dean Campbell; Karin
Fangman; Shannon Finnegan; Sharon Miller; Melanie Papasian; Cynthia Saunders; and
Gregory Wilmoth.




Page 40                                                    GAO-12-860R Veterans’ Reemployment Rights
Related GAO Products

Veterans’ Reemployment Rights: Steps Needed to Ensure Reliability of DOL and Special
Counsel Demonstration Project’s Performance Information. GAO-11-312R. Washington, D.C.:
June 10, 2011.

Servicemember Reemployment: Agencies Are Generally Timely in Processing Redress
Complaints, but Improvements Needed in Maintaining Data and Reporting. GAO-11-55.
Washington, D.C.: October 22, 2010.

Military Personnel: Improvements Needed to Increase Effectiveness of DOD’s Programs to
Promote Positive Working Relationships between Reservists and Their Employers.
GAO-08-981R. Washington, D.C.: August 15, 2008.

DOD Financial Management: Adjudication of Butterbaugh Claims for the Restoration of Annual
Leave or Pay. GAO-08-948R. Washington, D.C.: July 28, 2008.

Military Personnel: Federal Agencies Have Taken Actions to Address Servicemembers’
Employment Rights, but a Single Entity Needs to Maintain Visibility to Improve Focus on Overall
Program Results. GAO-08-254T. Washington, D.C.: November 8, 2007.

Military Personnel: Considerations Related to Extending Demonstration Project on
Servicemembers’ Employment Rights Claims. GAO-08-229T. Washington, D.C.:
October 31, 2007.

Military Personnel: Improved Quality Controls Needed over Servicemembers Employment
Rights Claims at DOL. GAO-07-907. Washington, D.C.: July 20, 2007.

Office of Special Counsel Needs to Follow Structured Life Cycle Management Practices for Its
Case Tracking System. GAO-07-318R. Washington, D.C.: February 16, 2007.

Military Personnel: Additional Actions Needed to Improve Oversight of Reserve Employment
Issues. GAO-07-259. Washington, D.C.: February 8, 2007.

Military Personnel: Federal Management of Servicemember Employment Rights Can Be Further
Improved. GAO-06-60. Washington, D.C.: October 19, 2005.

U.S. Office of Special Counsel’s Role in Enforcing Law to Protect Reemployment Rights of
Veterans and Reservists in Federal Employment. GAO-05-74R. Washington, D.C.:
October 6, 2004.




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Page 41                                                    GAO-12-860R Veterans’ Reemployment Rights
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