[Senate Hearing 110-766]
[From the U.S. Government Publishing Office]
S. Hrg. 110-766
PROTECTING THE EMPLOYMENT RIGHTS OF THOSE WHO PROTECT THE UNITED STATES
=======================================================================
HEARING
OF THE
COMMITTEE ON HEALTH, EDUCATION,
LABOR, AND PENSIONS
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
ON
EXAMINING WAYS TO PROTECT THE EMPLOYMENT RIGHTS OF THOSE WHO PROTECT
THE UNITED STATES
__________
NOVEMBER 8, 2007
__________
Printed for the use of the Committee on Health, Education, Labor, and
Pensions
Available via the World Wide Web: http://www.gpoaccess.gov/congress/
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COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS
EDWARD M. KENNEDY, Massachusetts, Chairman
CHRISTOPHER J. DODD, Connecticut MICHAEL B. ENZI, Wyoming,
TOM HARKIN, Iowa JUDD GREGG, New Hampshire
BARBARA A. MIKULSKI, Maryland LAMAR ALEXANDER, Tennessee
JEFF BINGAMAN, New Mexico RICHARD BURR, North Carolina
PATTY MURRAY, Washington JOHNNY ISAKSON, Georgia
JACK REED, Rhode Island LISA MURKOWSKI, Alaska
HILLARY RODHAM CLINTON, New York ORRIN G. HATCH, Utah
BARACK OBAMA, Illinois PAT ROBERTS, Kansas
BERNARD SANDERS (I), Vermont WAYNE ALLARD, Colorado
SHERROD BROWN, Ohio TOM COBURN, M.D., Oklahoma
J. Michael Myers, Staff Director and Chief Counsel
Katherine Brunett McGuire, Minority Staff Director
(ii)
?
C O N T E N T S
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STATEMENTS
THURSDAY, NOVEMBER 8, 2007
Page
Kennedy, Hon. Edward M., Chairman, Committee on Health,
Education, Labor, and Pensions, opening statement.............. 1
Prepared statement........................................... 3
Isakson, Hon. Johnny, a U.S. Senator from the State of Georgia,
statement...................................................... 5
Prepared statement........................................... 17
Brown, Hon. Sherrod, a U.S. Senator from the State of Ohio,
statement...................................................... 19
Allard, Hon. Wayne, a U.S. Senator from the State of Colorado,
statement...................................................... 20
Ciccolella, Charles S., Assistant Secretary for the Veterans'
Employment and Training Service, Department of Labor,
Washington, DC................................................. 21
Prepared statement........................................... 24
Sumner, L. Gordon, Ph.D., Executive Director, National Committee
for Employer Support of the Guard and Reserve, Arlington, VA... 28
Prepared statement........................................... 28
Bloch, Scott, Special Counsel, U.S. Office of Special Counsel,
Washington, DC................................................. 30
Prepared statement........................................... 32
Farrell, Brenda, Director of Military and Civilian Personnel
Issues in the Defense Capabilities and Management Team,
Government Accountability Office, Washington, DC............... 35
Prepared statement........................................... 37
Reed, Hon. Jack, a U.S. Senator from the State of Rhode Island,
statement...................................................... 49
Murkowski, Hon. Lisa, a U.S. Senator from the State of Alaska,
statement...................................................... 50
Duckworth, Major Ladda Tammy, Director, Illinois Department of
Veterans' Affairs, Springfield, IL............................. 54
Prepared statement........................................... 56
McCarthy, Lieutenant General Dennis M., National Executive
Director, Reserve Officers Association, Washington, DC......... 58
Prepared statement........................................... 59
Duarte, Lieutenant Colonel Joseph Steve, U.S. Marine Corps,
Centennial, CO................................................. 63
Prepared statement........................................... 66
Halbrook, Richard, Executive Vice President, Dollar Thrifty
Automotive Group, Inc., Tulsa, OK.............................. 71
Prepared statement........................................... 73
ADDITIONAL MATERIAL
Statements, articles, publications, letters, etc.:
Enzi, Hon. Michael B., a U.S. Senator from the State of
Wyoming, prepared statement................................ 77
Murray, Hon. Patty, a U.S. Senator from the State of
Washington, prepared statement............................. 79
Letter from Charles S. Ciccolella, U.S. Department of Labor,
Washington, DC............................................. 81
(iii)
Response to Questions of Senator Kennedy by:
Charles S. Ciccolella.................................... 81
Dennis M. McCarthy....................................... 89
Response to a Question of Senator Enzi by Charles S.
Ciccolella................................................. 86
Letter from Dennis M. McCarthy, Reserve Officers Association,
Washington, DC............................................. 89
Response to Questions of Senator Murray by:
Charles S. Ciccolella.................................... 86
Dennis M. McCarthy....................................... 92
PROTECTING THE EMPLOYMENT RIGHTS OF THOSE WHO PROTECT THE UNITED STATES
----------
THURSDAY, NOVEMBER 8, 2007
U.S. Senate,
Committee on Health, Education, Labor, and Pensions,
Washington, DC.
The committee met, pursuant to notice, at 10:28 a.m. in
Room SD-430, Dirksen Senate Office Building, Hon. Edward M.
Kennedy, chairman of the committee, presiding.
Present: Senator Kennedy, Reed, Brown, Isakson, Murkowski,
and Allard.
Opening Statement of Senator Kennedy
The Chairman. This Sunday the Nation will celebrate
Veterans' Day. On that solemn day, we honor the generation of
soldiers who fought for our country in all our Nation's wars.
We mourn for those who have lost their lives on the battlefield
and we express our immense gratitude, particularly to the
members of our Armed Forces who have served so bravely in
recent years in Iraq and Afghanistan, both those who have
returned home and those still in harm's way.
Since September 11th, 1.5 million of our service men and
women have been deployed in Iraq and in Afghanistan. And more
than 630,000 members of the National Guard and Reserves have
been mobilized. Our forces now have been in Iraq for 4\1/2\
years, longer than our military was engaged in World War II.
Our Government has asked all of these brave men and women to
make immense sacrifices for our country. They've been sent far
from their homes for extended tours of duty. We've asked them
to leave their families and their jobs. We've asked them to
risk their lives and more than 3,800 have made the ultimate
sacrifice.
In fact, this year more soldiers have died in Iraq than any
other year of the war. They've put our national security first
and the Nation owes them an immense debt of gratitude.
When these heroes return home, we owe them more than a kind
word or prayers. We must do whatever we can to help them make
the transition back to civilian life. Many veterans need to
return quickly to their former jobs to support their families.
Our Federal laws are meant to speed that transition by
requiring companies to quickly reemploy our Nation's veterans
and ensure they don't lose out at work because they answered
the call of duty.
However, Department of Defense figures that have been
released today, show that tens of thousands of veterans
returning home have faced the harsh reality that their service
to our country has cost them the salary they deserve, the
health care, and other benefits, and even their jobs. Among the
members of the Reserves and National Guard, nearly 11,000 were
denied prompt reemployment. More than 22,000 lost seniority and
rightful pay. Nearly 20,000 saw their pensions cut. More than
15,000 did not receive the training they needed to resume their
former jobs. Nearly 11,000 did not get their health insurance
back.
Even more disturbing, veterans who seek help face a Walter
Reed-like nightmare, a system that is crumbling and failing to
serve them when they need it most. They have to negotiate a
maze of bureaucracy, they could be shuffled among multiple
agencies only to find, after all the bureaucratic run-around,
they still may have to pay a lawyer to file their case in
court.
With a system like this, it's no wonder that 77 percent of
all veterans say they don't even bother to seek help when they
face reemployment problems. A third say they have no idea where
to turn and don't believe that their problems would be fixed.
Our laws require the Federal Government to defend veterans'
rights, but those who seek help must wait for months, even
years, just to get a simple answer about whether the Government
will take their case.
The Department of Labor, where the vast majority of claims
are referred, has taken years to resolve complaints. One case
has even been open for 7 years--7 years. Federal employees
seeking help waited an average of 8 months before their cases
were referred to yet another agency, the Office of Special
Counsel for help. Nearly half of all veterans who sought help
from the Department of Labor last year said that they were
dissatisfied with the assistance that they received.
Of the nearly 1,400 complaints, the Department received in
2006, it referred only 24 cases, less than 2 percent, to other
agencies for prosecution that year. As a result, the Attorney
General filed only four Federal cases on behalf of veterans in
2006. The Office of Special Counsel litigated only a single
case referred by the Department of Labor.
In a situation where tens of thousands of our veterans are
having reemployment problems, these numbers are appalling. Even
worse, we've done little to help disabled veterans to meet the
unique challenges they face. More than 28,000 soldiers have
been wounded in action since 9/11, thousands of them seriously
enough to need help to return to their former civilian jobs.
Incredibly, the Federal agencies tell us they don't even know
what the scope of the problem is because they don't follow
disability cases in a uniform manner.
This gross abdication of responsibility to our veterans is
unacceptable. These brave men and women have risked their lives
to protect us, yet we are failing to protect them.
Today, we'll seek answers from the agencies about why more
isn't being done. We'll also hear from the Government
Accountability Office, whose staff has produced several
comprehensive reports about these problems, including two
reports earlier this year. We look forward to hearing further
about the in-depth work that they have done.
We're honored to have with us several veterans today. Tammy
Duckworth, Director of the Illinois Department of Veterans'
Affairs, an Iraq War veteran. Tammy, it's nice to see you
again. Thank you. Thank you.
Retired Lieutenant Colonel Steve Duarte, Lieutenant General
Dennis McCarthy, Executive Director of the Reserve Officers
Association.
I know there are a number of men and women in the audience
here who have served our country. We commend them for their
strong commitment to seek fairness for veterans and service
members. We know we can never truly repay our veterans for
their immense sacrifices. They have fought hard overseas for
our country. It's up to us to fight hard for them when they
return to the heroes' welcome that they so justly deserve.
[The prepared statement of Senator Kennedy follows:]
Prepared Statement of Senator Kennedy
This Sunday, the Nation will celebrate Veterans' Day. On
that solemn day we honor the generations of soldiers who have
fought for our country in all the Nation's wars. We mourn for
those who have lost their lives on the battlefield. And we
express our immense gratitude, particularly to the members of
our armed forces who have served so bravely in recent years in
Iraq and Afghanistan--both those who have returned home and
those still in harm's way.
Since September 11th, 1\1/2\ million of our servicemen and
women have been deployed to Iraq or Afghanistan, and more than
630,000 members of the National Guard and Reserves have been
mobilized. Our forces have now been in Iraq for four and one-
half years--longer than our military was engaged in World War
II.
Our government has asked all of these brave men and women
to make immense sacrifices for our country. They've been sent
far from their homes for extended tours of duty. We've asked
them to leave their families and their jobs. We've asked them
to risk their lives, and more than 3,800 of them have made the
ultimate sacrifice. In fact, this year, more soldiers have died
in Iraq than in any other year of the war. They've put our
national security first, and the Nation owes them an immense
debt of gratitude. When these heroes return home, we owe them
more than kind words or prayers. We must do whatever we can to
help them make the transition back to civilian life.
Many veterans need to return quickly to their former jobs,
to support their families. Our Federal laws are meant to speed
that transition, by requiring companies to quickly reemploy our
Nation's veterans and ensure they don't lose out at work
because they answered the call of duty.
However, Department of Defense figures being released today
show that tens of thousands of veterans returning home have
faced the harsh reality that their service to our country has
cost them the salary they deserve, their health care, and other
benefits, and even their jobs. Among members of the Reserves
and National Guard:
Nearly 21,000 were denied prompt reemployment.
More than 22,000 lost seniority and rightful pay.
Nearly 20,000 saw their pensions cut.
More than 15,000 did not receive the training they
needed to resume their former jobs.
Nearly 21,000 did not get their health insurance
back.
Even more disturbing, veterans who seek help face a Walter
Reed-like nightmare--a system that is crumbling and failing to
serve them when they need it most. They have to negotiate a
maze of bureaucracy. They can be shuffled among multiple
agencies--only to find after all the bureaucratic run-around
that they still may have to pay a lawyer to file their case in
court.
With a system like this, it's no wonder that 77 percent of
all veterans say they don't even bother to seek help when they
face reemployment problems. A third say they have no idea where
to turn, or don't believe that their problems would be fixed.
Our laws require the Federal Government to defend veterans'
rights, but those who seek help must wait for months, even
years, just to get a simple answer about whether the government
will take their case to court.
The Department of Labor, where the vast majority of claims
are referred, has taken years to resolve complaints. One case
has even been open for 7 years. Federal employees seeking help
waited an average of 8 months before their cases were referred
to yet another agency--the Office of Special Counsel--for help.
Nearly half of all veterans who sought help from the Department
of Labor last year said that they were dissatisfied with the
assistance they received.
Of the nearly 1,400 complaints the Department received in
2006, it referred only 24 cases--less than 2 percent--to other
agencies for prosecution that year. As a result, the Attorney
General filed only 4 Federal cases on behalf of veterans in
2006, and the Office of Special Counsel litigated only a single
case referred by the Department of Labor.
In a situation where tens of thousands of our veterans are
having reemployment problems, these numbers are appalling.
Even worse, we've done little to help disabled veterans to
meet the unique challenges they face. More than 28,000 soldiers
have been wounded in action since 9/11, thousands of them
seriously enough to need help to return to their former
civilian jobs. Incredibly, the Federal agencies tell us they
don't even know what the scope of the problem is--because they
don't follow disability cases in a uniform manner.
This gross abdication of responsibility to our veterans is
unacceptable. These brave men and women have risked their lives
to protect us--yet we are failing to protect them.
Today we will seek answers from the agencies about why more
isn't being done. We also will hear from the Government
Accountability Office, whose staff has produced several
comprehensive reports about these problems, including two
reports earlier this year. I look forward to hearing further
about the in-depth work they have done.
We're also honored to have with us several veterans: Tammy
Duckworth, Director of the Illinois Department of Veterans'
Affairs and an Iraq War veteran; Retired Lieutenant Colonel
Steve Duarte; and Lieutenant General Dennis M. McCarthy,
Executive Director of the Reserve Officers Association.
I know there are a number of men and women in the audience
here who have served our country. We commend them for their
service, and for their strong commitment to seek fairness for
all veterans and servicemembers.
We know we can never truly repay our veterans for their
immense sacrifices. They have fought hard overseas for our
country, and it is up to us to fight just as hard for them when
they return home to the heroes' welcome they so justly deserve.
The Chairman. Senator Isakson.
Statement of Senator Isakson
Senator Isakson. Well, thank you very much, Senator
Kennedy, for calling this hearing. And this gives me the
opportunity to publicly apologize to Tammy for bumping into her
when I came in the building today. And I want to also tell her
that I had the pleasure of meeting her at Walter Reed when she
was doing rehab there, and I thank you very much for your
service to the country and what you're doing for veterans
today.
While Veterans' Day is Monday, today is also the 25th
Anniversary of the Vietnam Memorial, and I was pleased to join
Senator Kennedy this morning in reading some of the 58,000
names of those brave Americans who died in Vietnam, including
my very best friend in life, Jackson Elliott Cox, who was my
roommate, and fraternity brother in school.
So this is a special day, it's a special day to look at our
veterans, and it's a special day to have a hearing of this
nature. So, thank you, Senator Kennedy, for doing that.
Since the tragic terrorist attacks of September 11, 2001,
our Nation has depended on our Armed Services more than ever.
It goes without saying that all of us, Republicans and
Democrats, liberals and conservatives, are appreciative of
their efforts and those of their families.
I am proud to have served in the Georgia Air National
Guard, hired members of the Guard and the Reserve when I ran my
company in Georgia, and I have voted to send our men and women
into harm's way. I take nothing more seriously than the
sacrifice and the courage of these brave young men and women.
Today, we address the employment of these brave young men
and women upon their return from action. More than half of the
men and women serving in all volunteer Armed Forces are members
of the Guard and the Reserve. Accordingly, employers play a
vital role in enabling their employees, who are members of the
Guard and Reserve, to serve their country and return to their
job in a smooth transition. It's imperative that employers be
as flexible as possible, as veterans attempt the transition
back to civilian life.
Federal law lays out a bare minimum that employers must do
to meet the needs of our Guard and Reserve. Employers must not
discriminate in hiring or other benefits of employment against
persons, because of that person's obligation to perform
services in uniform.
And I would make a note at this point in my remarks,
unbeknownst to me and not planned because of this hearing, but
at lunch--I'll be having lunch with some of the executives of
Home Depot that testified last year before this very committee.
They have been recognized at least twice, as a national leader
in the employment of veterans. And Frank Lake, their CEO, and
the many people at Home Depot, who are headquartered in
Georgia, can say their No. 1 responsibility and what they do
over and above what is required, the minimum that's required by
law, is just astounding. I think they're an absolute role model
for the rest of the country.
And, Mr. Chairman, to that end, I have a number of
statements, six precisely, that I've received from private
employers documenting such efforts that I would like to be
entered into the record.
The Chairman. They will be so included.
[The information previously referred to follows:]
Prepared Statement of Janet Fiore, CEO, The Sierra Group, Inc.
Please accept my testimony for the record regarding the major role
that prompt and effective vocational rehabilitation services play in
accommodating, retraining and placing injured veterans back into their
prior civilian jobs or into new careers.
BACKGROUND
The high rate of unemployment for Americans with Disabilities is
being compounded by the fact that more than 22,000 men and women who
are returning from the current conflicts, who were previously employed,
are now physically disabled, and in need of a totally different way to
earn a living. Or, they have sustained injuries and disabilities that
make it difficult for them to return to their prior civilian jobs
unless both they and their employers receive disability-related
accommodation and training services.
The men and women who have recently become disabled while serving
our country are adding to existing U.S. Census statistics which show
that 10 percent of all Americans have a disability. Physical injuries
and post traumatic stress disorder for veterans is also causing an
increase in the existing statistics that show 27 million Americans have
a severe disability that affects their ability to see, hear, walk or
perform other functions necessary for the workplace. Assistive
technology is enabling thousands of these individuals to work or return
to work in their previous jobs. However, the unemployment rate for
people with disabilities remains more than 11 times the national
average. Seventeen years following the passage of the Americans with
Disabilities Act, which was enacted to prohibit discrimination solely
on the basis of disability in employment, public services, and public
accommodations, the unemployment rate for people with disabilities
remains at 70-80 percent.
Assisting people with disabilities in finding and maintaining
competitive employment is important to society. Assistive technology,
training and other accommodations are proven avenues to help businesses
in both hiring and return to work practices. However, access to
information and services that support individuals and business that
need them is fragmented and therefore, underutilized. For instance,
veterans with disabilities can gain work-related training and
accommodation services via a number of separate agencies including, but
not limited to, the Veteran Administration's Vocational Rehabilitation
and Employment (VR&E); the Department of Labor's Veterans' Employment
and Training Services (VETS); the Department of Education's State-
administered public program of Vocational Rehabilitation (VR); and
others. While each agency provides meaningful and beneficial services
to both individuals and to employers, the lack of ability to easily
navigate the process is actually a disincentive that contributes to the
low employment numbers for citizens with disabilities. Veterans with
disabilities do not always know which employment-related services are
best to meet their individual needs and desires as they attempt to re-
integrate to employment. Similarly, businesses faced with a system that
is cumbersome to navigate are not proactively recruiting people with
disabilities.
In order for more people with disabilities to be put to use in the
workplace, American businesses seem to need a catalyst that will show
them how to benefit from hiring and rehiring people with disabilities.
One catalyst that would begin to change the dire unemployment picture
for these persons with disabilities is the Disability Preference
Program for Tax Collection Contracts. Once enacted into law, the
initiative will serve as a pilot program to demonstrate to business the
benefits of bringing these men and women into the workforce, in large
numbers. The Disability Preference Program for Tax Collection Contracts
is very well-suited to be this catalyst for several reasons, including:
It will provide well-paying jobs with health benefits and
401(k) benefits;
It will provide jobs that require only a high school
education or GED, which is of particular importance to returning
veterans who have become disabled; and
It will provide jobs that are well-suited to
accommodations, including use of assistive technology.
In my 15 years of experience providing services for job seeking
Americans with disabilities, and to employers who hire them, it is
often difficult to find work that is so well-suited for those with
severe disabilities. The jobs that would be created by the Disability
Preference Program for Tax Collection Contracts involve work from a
desk, computer and telephone, all of which can be readily adapted for
people with the most severe disabilities including mobility
impairments, mild traumatic brain injury, severe vision loss and other
impairments.
In addition, finding jobs with sustainable wages and benefits for
individuals with a high school diploma or GED is difficult. Of
individuals identified as both unemployed and having a severe
disability, nearly 50 percent of them have an education that has not
culminated in a high school diploma. In fact, nearly 40 percent of this
total is educated at or below the 8th grade level. The Journal of
Rehabilitation (July/August/September 2002, volume 68, Number 9)
addresses the need for accommodations during GED testing for adults
with disabilities because research demonstrates that people with
disabilities ages 15 to 20 fail to complete high school at twice the
rate as those without disabilities (41 percent vs. 21 percent).
Therefore, those who go on to successfully gain their GED have even
less opportunities than their non-disabled counterparts.
The Disability Preference Program for Tax Collection Contracts
could be a catalyst that would succeed in putting thousands of severely
disabled men and women to work in meaningful, well-paying careers. The
success of this program will serve as an example that can allow
additional governmental contracts to businesses in all industries to
encourage the employment of people with disabilities, at good wages and
with benefits.
This ``business first'' approach provides a reason to build upon
the numbers of employees with disabilities a business includes in its
workforce by offering an incentive during the contracting phase, in
order to stimulate the hiring of a large number of qualified men and
women with disabilities into our shrinking American workforce. The need
for this program is further evidenced by the GAO Report in 2002 that
found low numbers of businesses routinely using the Work Opportunities
Tax Credit (WOTC), the Disabled Access Tax Credit (DAC) and the
Architectural Barriers Removal Deduction. This study, which I
participated in, found that many businesses were unaware of the
programs. I and others contacted recommended that Congress take steps
to reach out to business to educate them about existing incentives.
I have seen first hand how leveraging assistive technology and
training in a third party debt collection production center gives
people with disabilities the opportunity to obtain the skills they need
to be successful tax collectors, and provides them with solid customer
service skills that will be transferable should they wish to move on to
another career. Armed with this career experience, those now in the
ranks of the unemployed will become self sufficient-taxpayers
themselves, while acquiring valuable employment skills to use in their
future.
Regarding the need to create jobs that can accommodate an assistive
technology user, the National Organization on Disability (NOD) study in
1998 revealed that 25 percent of all people with disabilities who work
use assistive technology. This same study also noted that 45 percent of
those with disabilities who are unemployed stated that they would
require assistive technology in order to become employed. Therefore,
the Disability Preference Program for Tax Collection Contracts, as a
pilot program, is well-suited to allow this large group of people with
severe disabilities to have a chance to work. It will also serve as a
means to increase the use of assistive technology in the workforce,
thereby drawing on the talents of the group of unemployed Americans who
require this type of accommodation in order to work.
In the last 15 years, with the improvements in technology, and
assistive technology, The Sierra Group, Inc., has trained and assisted
over 5,000 individuals. Sierra has an 80 percent success rate--success
being defined as 4 years after an individual is provided with assistive
technology or training for vocational and educational purposes, they
are still utilizing the services provided. Every day in America,
thousands of job-seeking people with disabilities are turned away by
businesses that have not seen the proof that these people can work.
This travesty in unemployment must be reversed if we are to be a fully
inclusive society that values diversity in our workforce. American
businesses obviously need and require both a straightforward incentive
and a successful pilot program to prompt them to recruit, hire, train,
and accommodate workers with disabilities.
Enhanced incentives and coordination of resources are required for
injured veterans and business in order to protect the employment rights
of those who became disabled while protecting the United States.
______
Attachment.--UMC, Inc. Monticello, MN
UMC, Inc. supplied the pay differential between the employee's
guard salary and his UMC wages, and continued his 401K contributions.
UMC took up collections for gift cards and sent care packages to
Iraq where he was deployed.
We learned that due to a storm, his family's privacy fence at their
home was damaged and approximately 20 employees and some of the UMC
managers volunteered to go to their house and repair their fence, plant
trees, and build a sandbox for their children.
Employees took up collection drives while he was away to raise
money so that his family could purchase him an airline ticket,
Christmas gifts for the kids, and other items they needed.
UMC kept in contact with the family at home in case they needed
anything and his wife kept UMC updated about the employee.
UMC provided paid transportation and accommodations for the
employee and his wife to be able to attend the Freedom Awards Ceremony
in Washington DC. UMC also purchased his Dress Blues Attire.
Since the employee has returned from Iraq and prior to him
returning to work, UMC is paying him 100 percent of his wages.
The employee has not returned to work yet but will be starting back
in 2 weeks. Our HR department hosted a roundtable meeting to discuss
Vets returning to work and Jim Sullivan from the ESGR spoke to an HR
group about re-acclimation.
Prepared Statement of Jeff Horner, Chief Development Officer, Global
Business Development and Vice President, Government Relations for
United Collection Bureau, Inc. (UCB)
It is an honor to be invited to submit my statement for the Record.
My name is Jeff Horner. I am Chief Development Officer of Global
Business Development and Vice President for Government Relations for
United Collection Bureau, Inc. (UCB). UCB is an Ohio Corporation
providing debt collection and accounts receivable management services
since 1959. We are licensed in all 50 States that require collection
agency licensing. In addition to our home office in Toledo, OH, we have
eight other locations throughout Ohio, Michigan, Florida and, most
recently, Arizona. We presently have about 1,200 employees and generate
over $40 million in annual revenue.
UCB is recognized as a top performing service provider in the
Financial Services market for credit card and bank product collections,
known as the most demanding and competitive market segments in the
industry. The company is a contact award holder for the Government
Service Administration (GSA) for debt collection services (SIN 520-4)
and we hold multiple State tax collection contract awards. Currently,
the company's key initiative is the procurement of contracts with the
Federal Government.
Under our service contract with the State of Ohio, UCB has been
recognized as the top-performing vendor each year of the competitive
contract for the collection of personal income tax accounts. With over
$25 million collected, UCB has played a critical role in the
overwhelming level of success the two Ohio Attorney Generals have
experienced while in office, with record recoveries each term. In
recognition of exceptional performance with the personal income tax
accounts, UCB has also been awarded, under competitive bid, contracts
for the collection of business tax accounts, student loan accounts, and
State-operated hospital patient accounts.
It is UCB's belief that value-added services offer significant
benefits to our clients, debtors, and employees. To this end, UCB has
developed a Value-Added Initiative for Federal Government collection
contract opportunities, not available with any other collection company
in the industry.
Mr. Chairman, 1 in 10 Americans have a disability. While the
current unemployment rate in the Nation stands at about 4.7 percent,
the unemployment rate of PWDs continues to hover at 70-80 percent. The
high number of returning disabled American veterans from Iraq and
Afghanistan will only serve to compound this problem.
We feel that the status quo is unacceptable. Therefore, UCB has
teamed up with a number of relationship partners for the purpose of
developing a comprehensive program to identify, recruit, screen, hire,
train, and employ persons with disabilities (PWDs), including returning
disabled veterans. Our program engages government and non-government
support agencies, assistive technology products and services, a
specialized training academy, and company resources to provide these
employees with full- or part-time collector positions with income
opportunity well above the national average for level of education and
experience.
The entire UCB-PWD program serves as a pipeline to reach out to
many candidates and identify those that are compatible with the
functions and responsibilities of the position. UCB has built an
integrated process using the partners and resources necessary to
deliver them to the workstation that has been personally equipped for
them to successfully perform the functions and responsibilities of the
job. It is our finding that employees who are also persons with
disabilities make extremely loyal, dependable, and productive
associates in our organization.
Senator Ben Nelson of Nebraska has also been working on an
initiative to further the employment of our returning disabled veterans
and all PWDs. The goal of the Disability Preference Program is to
promote the employment of persons with disabilities, including disabled
veterans, through the utilization and enhancement of the IRS' program.
As approved by the Senate, Senator Nelson's legislation would give a
preference in contracting to third-party debt collectors who currently
employ at least 50 persons with disabilities and agree to hire an
additional 35 percent of the contract workforce persons with
disabilities.
The contracts being executed by the IRS with private-sector debt
collection companies offer an exceptional opportunity for the Federal
Government to stimulate creation of well-paying jobs for the disabled.
Positions at third-party debt collection agencies pay between $25,000
and $150,000 annually, with most averaging $40,000. These jobs also
include health and 401(k) benefits. With an initial hire of 750 persons
with disabilities, the Federal Government could potentially save up to
$344 million over 10 years in Supplemental Security Income (SSI) and
Disability Insurance (DI) benefits.
The Senator first introduced the Disability Preference Program for
Tax Collection Contracts in 2005. His initiative has passed the Senate
on three separate occasions. Most recently it was included as part of
H.R. 2829, the Financial Services and General Government Appropriations
Act for Fiscal Year 2008, as reported by the Senate.
Enactment of the Disability Preference Program is necessary since
in several letters and conversations with the Department of Treasury,
they have stated that ``under existing GSA Federal Supply Schedule
(FSS) contracting procedures, (they) cannot set a specific number of
awards aside for contractors employing significant numbers of persons
with disabilities.''
The Treasury Department has also said they need legislation in
order for ``GSA to amend its socioeconomic criteria in order to give a
preference to a business that hires large numbers of persons with
disabilities.'' Currently, the preference is only considered if an
individual who owns the company is a disabled veteran. This is an
oversight which needs to be corrected.
It makes no sense that current law provides an employment
opportunity for ONE disabled person, while this legislation would
create opportunities for hundreds, if not thousands of people who are
unemployed and disabled.
Unfortunately, there are many in Congress staunchly opposed to the
IRS program to collect past due income taxes. While the pilot program
has been quite successful--over $24 million in gross revenue has been
collected--it remains under attack. In fact, this week the House of
Representatives is slated to take up Chairman Charlie Rangel's bill,
H.R. 3996, which contains a provision to repeal the IRS program.
But Mr. Chairman, I would propose to you that the Disability
Preference Program is worth supporting even under the assumption that
the IRS contracting law should be repealed at some future point. A
closer look at the Disability Preference Program and the repeal of
current IRS contracting law clearly shows that the two are not mutually
exclusive. Until such time as a repeal is passed, workers with
disabilities, including service-disabled veterans, employed by
contractors are gaining valuable vocational training and work
experience on-the-job.
Disabled veterans and other disabled workers would most likely
retain employment with the contractor through reassignment to another
project within the company if the IRS contract were to expire or be
terminated. Private sector collection contractors strive to lower
attrition and training costs by reassigning exiting staff as projects
are gained and lost.
In addition, employees assigned to the IRS contract work at the
private collection contractor must pass the same level of scrutiny and
background checks as IRS employees, and undergo IRS-approved project
training and testing. Therefore, contractor employees will be the best
available applicants for job opportunities with the IRS when the IRS
hires internal collectors to do the work before or after repeal.
Under the Disability Preference Program, disabled workers would
receive valuable training, certification, and job experience to seek
gainful employment at private sector or government offices performing
telephone collection work, and therefore would be much better qualified
and prepared to continue a career in the collection industry than they
otherwise would have been if the program was not available.
Although even for a temporary time period, use of this employment
initiative would provide a much-needed demonstration to government
contracting entities that similar contracting requirements should be
used to provide good job opportunities for disabled veterans and other
persons with disabilities.
Mr. Chairman, UCB is committed to finding gainful, meaningful work
for our returning disabled veterans and for persons with disabilities.
I hope to work with you and the other members of this committee to
reduce the inexcusable unemployment rate for the disabled and to honor
those who have sacrificed so much on our behalf.
Thank you, Mr. Chairman.
______
Disability Preference Program for Tax Collection Contracts
Legislative History
109th Congress
S. 2020: Tax Relief Act of 2005*
The preference program was included in sections 406 and 503 in the
bill that was passed by the Senate on November 18, 2005.
---------------------------------------------------------------------------
* The amended bills--S. 2020, H.R. 4297, H.R. 1591, and H.R. 2829--
cited in this section may be found on the Senate Web site
www.senate.gov.
---------------------------------------------------------------------------
H.R. 4297: Tax Relief Act of 2005*
The preference program was passed by the Senate in section 471 on
February 2, 2006 but not included in the conference report.
110th Congress
H.R. 1591: Emergency Supplemental*
The preference program was passed by the Senate in Section 570 on
March 29, 2007.
H.R. 2829: Financial Services and General Government
Appropriations*
The program was included in Section 113 of the bill that was
reported in the Senate on July 13, 2007, but was never passed.
Prepared Statement of David L. Miller, President, Con-way Freight-
Central
At Con-way, we are tremendously proud of our employees and
especially those who are members of the National Guard or Reserves.
These brave men and women represent unique members of the Con-way
family and deserve our support and the support of the Nation.
Currently, we have 28 employees who are deployed and a total of 92 who
are members of the Guard or Reserves. Tragically, two Con-way
associates have been killed in Iraq so we understand the impact such
losses can have on our families and on our business.
Supporting our employees called to active duty and their families
is a long tradition at Con-way. We feel it is our duty to them--and to
the Nation in which we freely live, work and do business. We also want
to encourage other employers to learn from our rich history of
commitment and encourage them to adopt similar value systems--ensuring
our active duty Reservists that they can come home and support their
families. As a business, we owe these individuals and their families
nothing less.
Con-way holds responsibility--not just to our shareholders
but also to our employee family and the Nation--as a core value.
Con-way maintains full health benefits and provides
military differential pay to families when an employee is deployed--far
above what is required by law.
The company counsels employees being deployed and their
families about health benefits and military pay differential programs
to ensure those left at home have access to information and contacts
during the deployment period.
Human Resources representatives check in with the families
to ensure that they understand the program of pay and benefits.
Our program has been in place for years without
alteration, despite increased deployments in recent years.
Are there steps the government could take that might
entice more employers to institute programs like ours? Yes. For one, we
believe it would be helpful to businesses if there were more lead time
between being called for duty and actual deployment. This would allow
us more time to make adjustments in our workforce.
We also recommend looking at tax credits as an incentive
for more companies to work harder to support their employees in the
Guard and Reserves.
We are proud of our practices in supporting the citizen
soldiers in our Con-way family and we would be happy to share what
we've learned with any company interested in creating a similar
program.
Thank you, members of the Commission.
______
Attachment 1.--News Articles
[From the American Forces Press Service, Aug. 28, 2007]
Indiana Guardsman Cites Freight Firm for Excellent Support
(By Gerry J. Gilmore)
Washington, DC.--Indiana National Guard Command Sgt. Maj. Michael
S. McAllister is so impressed with the support provided by his
employer, Con-way Inc., that he recommended that it receive a
prestigious Defense Department award.
Con-way Inc. is among 15 businesses and organizations selected to
receive this year's Secretary of Defense Employer Support Freedom
Award. McAllister nominated the company for the annual award, which
honors businesses and organizations that provide exemplary support for
their employees in the Guard or Reserves.
McAllister is a coordinator at Con-way Freight's trucking hub in
Plainfield, Indiana, located near Indianapolis. The Ann Arbor,
Michigan-based firm is a division of Con-way Inc., a freight
transportation and global logistics company based in San Mateo,
California.
McAllister, 41, cited the company's demonstrated concern and
support for its employees in the Guard or Reserves.
``It wasn't so much all of the benefits. I mean, those are nice,
because they're above and beyond what the law requires,'' McAllister
explained.
Rather, he cited his employers practice of welcoming home employees
returning from military duty.
``We're obviously elated that the company was recognized, but as
I've made it a point to share with people, we didn't do it for any
`brownie points' if you will, or awards for us,'' said David L. Miller,
Con-way Freight's chief operating officer.
``We're doing it because we have the means to support our citizen-
soldiers, and it is the right thing to do at the end of the day,''
Miller said. ``We only enjoy our freedoms because we have fine young
men and women that are willing to put it on the line.''
Con-way Inc. and its subsidiaries provide differential pay to their
employees in the Guard or Reserves who are called up for active duty.
The company also provides health benefits for spouses and children who
remain at home and collects and delivers care packages of books, snacks
and other items to overseas troops.
``We do a wage differential, so that when the guys or gals are
deployed on active duty, whatever they would have earned here working
for us, we make up the differential between what they make in the
military vs. what they would have made here,'' Miller explained.
Supporting employees in the Guard or Reserves who've been activated
for duty assists them to ``have their heads in the mission'' so they
can come home safely, Miller pointed out.
``We don't want them having to look over their shoulders, wondering
if their families are being taken care of when they are over there
taking care of all of our families,'' he said.
McAllister recalled being activated to participate in Operation
Noble Eagle to guard airports and other vital U.S. infrastructure for 2
years after the September 11, 2001, terror attacks. He recently was
activated again to help establish a new State training organization
that will prepare Guard and Reserve troops who've been mobilized for
overseas duty.
McAllister reiterated that his civilian employer excels at
supporting its employees in the Guard or Reserves. ``I don't have to
worry about the way the company's going to view me when I get back,''
the senior noncommissioned officer said, noting his company is proud of
its employees in the Guard or Reserves.
The Secretary of Defense Employer Support Freedom Award recognizes
U.S. employers that rise above the requirements of the Uniformed
Services Employment and Reemployment Rights Act. The National Committee
for Employer Support of the Guard and Reserve, a Defense Department
agency, manages the award process. ESGR assists Guard and Reserve
members and their employers understand employee eligibility and job
entitlements, employer obligations, benefits and remedies under this
act.
Miller will accept the Freedom Award on behalf of Con-way Inc.
during a formal ceremony here September 12.
______
Attachment 2.--Editorial--Transport Topics magazine--American
Trucking Associations
Beyond Ribbons and Care Packages . . . Helping Companies Do What They
Can--and Should--to Support Employees Called For Military Service
(By David L. Miller, President, Con-way Freight-Central)
It's no secret--when the military deploys members of the National
Guard or Reserves it makes a dramatic impact on them and everyone
around them. Families and friends feel the effects . . . and so do
employers. With a war in progress and National Guard and Reserve
soldiers now comprising 46 percent of our military, we need to look for
ways to soften the impact that these absences will have, both on the
families and the employers of those who are deployed.
In that sense, we are all partners in our country's national
defense, and carry the responsibility that entails. As employers, we
must show accountability to our citizen soldiers and their families--
but also to the customers and shareholders who count on us to provide
reliable, high-quality service and consistent returns. There has never
been a better time for responsible employers to come together and
evaluate how deployments of our employee/soldiers are handled and
whether there are ways to improve that process for the citizen
soldiers, customers and other stakeholders.
To examine these issues, it's important to take stock of what we're
facing. What does an employer have to do when informed of an employee's
imminent deployment, and how can the employer help cushion the impact
for the employee, his or her family, and the business? The first step,
of course, is finding a replacement to fill in during the absence.
Depending on the facility's location, that can mean transferring an
existing employee, training a new one, adding overtime hours for
existing staff or some combination of the three. The universal theme?
Time and money, and it takes both. Training or retraining an employee
often costs thousands of dollars . . . and always takes a significant
amount of time. Companies with National Guard and Reserves members on
staff must be prepared to make those expenditures when these employees
are called for active duty, making a national issue a (very) local one.
While taking steps to manage the impact of employee deployments on
the business, which takes a great deal of our attention, there's
another constituency that deserves just as much: the families of our
deployed employees.
Many companies choose to go above and beyond minimum legal
requirements in providing security to the loved ones of deployed
soldiers. They continue to cover full- family health benefits and even
pay the difference between military pay and what the soldier was
earning as an employee.
But it's not just about compensation and benefits. Each of us must
weigh our ethical obligation to provide as much support as we can
during the trying times of a military separation. Companies can choose
to communicate with the families early and often to make sure they
understand all pay and benefits programs offered. It may feel like a
business risk to offer more than legally required, but it pales in
comparison to the risks taken by our citizen soldiers every day and to
the rewards of ensuring that a good, motivated employee returns to your
organization when their deployment ends. When you look at it that way,
financial assistance and solid communication are small prices to pay,
indeed.
After all, these are important employees in any organization. A
staff member in the National Guard or Reserves truly knows the meaning
of leadership, responsibility and professionalism. They tend to bring
discipline, perseverance and grace under pressure to everything they
do. We, as employers, are lucky to have them, even if it means having
to function without them on short notice when necessary.
Having said that, let's look for ways to improve the deployment-
reemployment activities for all involved. How can we make it easier for
businesses to do the right thing without unnecessarily facing declining
revenues or service levels in the process? That brings us back to time
and money. Most employers would agree that additional lead time between
notice of deployment and reporting for duty would be enormously helpful
in planning for employee absences. More time can open up options like
cross-training and covering for the deployed employee without hiring a
replacement. The goal is to minimize the operational disruption caused
by the absence, reducing the financial risk to the organization, and
providing enough time for the deployed employee's family to adjust and
adapt. These are common-sense objectives we should work toward.
Another idea that's often discussed is government tax credits for
companies employing National Guard and Reserves members. The credits
could reward businesses going above and beyond what is mandated by law
in deployment pay and benefits, and also potentially help alleviate the
expense of temporary labor during a deployment. The No. 1 reason
soldiers point to when leaving the Guard or Reserves is pressure from
their employers, and tax credits like these could take the pressure off
all parties.
These are just a few of the ideas that could help employers fulfill
ethical and patriotic duties to those employees who sacrifice so much
to protect the American quality of life. If the last nearly 6 years
have taught us anything, it is that we can't take for granted the
freedoms we enjoy as Americans. It is everyone's job to support those
willing to sacrifice themselves for our country. That should go beyond
ribbons and care packages.
Prepared Statement of Dave McNulty, Director of Veterans Employment and
Training for the State of Wyoming
Wyoming has not had a USERRA case in the past 2 years. The real
success is talking with every soldier that is being mobilized or de-
mobilized. We cover the USERRA law and what their rights and the rights
of the employers are. We encourage them to sit down with their employer
prior to being mobilized and go over the basics of the law. In addition
to this, I talk with employer groups, both private and governmental,
National Guard and Reserve Leadership groups and their Family Support
Center Staff to ensure as many people as possible are aware of the
USERRA law and its requirements.
I work very closely with Employers in Support of the Guard and
Reserve (ESGR), a volunteer group that provides information to military
personnel and employers throughout the State regarding USERRA. If ESGR
cannot resolve issues, they refer the case to my office as an official
complaint. I provide training on USERRA at least annually at the ESGR
statewide meeting.
I receive many calls from employers in Wyoming asking what they
need to do to comply with the law. One employer from Gillette, Wyoming
called because their employee had been injured in Iraq and was back but
could not get a release to go back to work. Their concern was they
could not hire him back until he got a release, but in the meantime, he
and his family had no income. I contacted the Wyoming Adjutant General
regarding the problem and the Guardsman was put back on orders the next
day and remained on orders until he could get a release to work. I
cannot say enough about Wyoming's employers and service members.
Prepared Statement of Michael Yackira, President and CEO,
Sierra Pacific Resources
Dear Chairman and Senators: My name is Michael Yackira and I am
President and Chief Executive Officer of Sierra Pacific Resources, the
parent company of Nevada Power Company and Sierra Pacific Power
Company, the two major electric utilities serving the State of Nevada.
I am pleased to share with you the details of Sierra Pacific
Resources' history of, as well as policies in support of our employees
who have taken on the responsibility of military service. We take great
pride in the opportunity we have to support both our coworkers and our
Nation through good company policy. Over the last 5 years, some 27
Sierra Pacific Resources employees have been called to active duty in
the military, including the current commanders of the Nevada Army
National Guard and the Nevada Air National Guard.
Just a few weeks ago, I had the great pleasure to accept on behalf
of Sierra Pacific Resources and its employees the 2007 Employer Support
of the Guard and Reserve Freedom Award. Sierra Pacific Resources was 1
of just 15 employers in the United States recognized with a Freedom
Award for exceptional support of its military reserve-component
employees.
Our company has also signed a 5-Star Statement of Support, received
numerous Patriot Awards and the Above and Beyond Award.
The key policies implemented by our company to support military
service include full pay during military service, the continuation of
benefits for employees and family members, as well as training for
managers on the Uniformed Services Employment and Reemployment Rights
Act.
One of our highest goals as a company is to have employees who make
a significant difference. In order to ask for such a commitment we
must, as a company, make similar commitments to our employees. Our
policies regarding military service are clearly the right thing to do,
and it has full support throughout the company from senior officers, to
managers to the coworkers who in many cases must pick up the extra work
to compensate for those workers serving our country.
In greater detail, here are some key provisions of our military
service policy:
Sierra Pacific Resources employees who serve in the U.S.
Military organizations, annual training or State militia groups may
take necessary time off to provide military service for the period of
the military orders. Sierra Pacific Resources complies fully with the
Uniformed Services Employment and Reemployment Act.
Sierra Pacific Resources will cover probationary and
regular, full-time and part-time employees for voluntary and
involuntary service.
Employees who report for annual military reservist duty
will receive his/her normal base pay in addition to the base pay earned
as a result of such duty, excluding any military subsistence or other
expense allowances during the training period, up to 30 working days.
Employees deployed are eligible for 12 months of pay
differential between the employee's military base earnings and the base
pay which he/she would have earned as an employee. Employees deployed
to active military service in excess of 12 months will be evaluated on
an exception basis for continued eligibility for pay and benefits under
this policy.
For the employees Company Retirement Plan, credited
service will continue to accrue for the duration of leave. 401(k)
contributions and company-matching contributions will continue at the
same percentage.
Employer paid Base Life coverage will continue.
Supplemental Life Insurance will continue.
Again, thank you for the opportunity to share our story with all of
you and our support for the Uniformed Services Employment and
Reemployment Act. Our commitment to our employees is one we take very
seriously, and having a comprehensive and fair plan to support our
military employees is just one example of that commitment.
It truly is the right thing to do. Thank you for your time.
Prepared Statement of Colonel Frederick H. Booth, Director of Division
of State Police, New Hampshire Department of Safety
The New Hampshire State Police have accomplished much in regard to
being a supportive and responsible employer for the men and women who
serve in the Guard and Reserve. There are over 20 members who serve in
the Reserve components, most of whom have deployed one or more times
since September 11, 2001.
Applicants are actively recruited personnel who serve in the Guard
and Reserve, recognizing that the generally superior employee they gain
outweighs the occasional inconvenience of them being away for training
or operational requirements. ALL employees who are citizen-warriors are
recognized as valued employees.
Care and comfort packages are provided for all deployed troops. The
State Police escort all departing and returning mobilized units of all
components. The remains of EVERY fallen Soldier, and members of all
components are escorted from whatever point the air transportation
lands, whether in or out of New Hampshire, entirely through the
memorial and burial process, frequently by troopers who VOLUNTEER to
show their support and respect. Troopers provide training in defensive
driving to help the New Hampshire re-entry and re-union process for
returning war veterans, assisting them to re-adjust to civilian
defensive measures.
Differential pay, continuation of family health benefits,
continuation of seniority time for up to 2 years of mobilization is
provided. Applicants receive veteran's preference. In addition, up to 1
year of military service can be credited toward civilian retirement.
All benefits are interpreted liberally to provide for maximum benefit
to the citizen-warrior.
The entire DOL rules interpretation of USERRA (Uniform Services
Employment and Reemployment Rights Act) was published in the
``Trooper'' magazine. The Department prominently displays USERRA/DOL
posters in the workplace, and encourages all levels of leadership to
acquaint themselves with its provisions.
MANY ``Patriot'' awards have been received throughout the Division,
two ``Above and Beyond'' awards, one ``Seven Seals'' Award, the
singular ``Pro Patria'' (Latin: ``For the Country'') award last year,
and received 1 of only 15 ESGR Secretary of Defense ``Freedom Award in
Washington, DC. Oct 12, 2007. The State Police was one of the first of
its super agency Department to sign a five-star formal ``Statement of
Support'' which it prominently displays with many other awards for
service at its' Headquarters, and Troop Stations around the State.
The Department of Safety, of which it is a part, has since become
the first super agencies in New Hampshire to have every Division sign
as well. The New Hampshire State Police have been recognized before the
Defense Advisory Board, and Reserve Forces Advisory Board for their
part in the exemplary New Hampshire first in the Nation ``Re-entry and
Re-union'' program for returning reservists. Photo displays are mounted
at all State Police facilities, honoring the troops and the national
flag is proudly displayed on all marked cruisers.
The State Police have long entered into a strategic partnership
with the National Guard in the Drug Interdiction program, and have
provided facilities, equipment and support for joint training and
operational missions, which include search and rescue across the
mountainous State.
In short, the NH State Police live by, support and honor by word
and deed, the basic tenants of USERRA, and have gone above and beyond
in every way, culminating in the recent receipt of the National Freedom
Award.
______
November 8, 2007.
Dear Committee: Thank you for accepting this written statement to
be entered into your hearing record on the hearing this morning
entitled: Protecting the Employment Rights of Those Who Protect the
United States.
I am a 51-year-old disabled U.S. Army veteran, the son of WWII Navy
veteran, brother of an Army veteran and father of an Iraqi veteran who
is currently scheduled to return to Iraq for military service in June
2008.
I also serve as Chaplain (unpaid-volunteer) within a local chapter
of the Vietnam Veterans of America, for which, I have been a member for
many years.
I am a former Federal employee with combined (military and
civilian) service in excess of over 13 years. I was Honorably
Discharged from Military and Civilian Services.
On behalf of myself and my brother and sister veterans, I thank you
for holding these hearings and I thank you for your service and
commitment to our Nation.
I am writing to you to opine that I believe from my own personal
experience, speaking to others and reviewing some of the case law from
the MSPB and the U.S. Court of Appeals that the system for re-dress by
the Federal Government for violations of veterans employment rights at
the: (1) agency level, (2) U.S. Department of Labor (DOL-VETS), (3)
U.S. Office of Special Counsel and (4) U.S. Merit Systems Protection
Board, are unacceptable. My experience and this letter concerns
employment limited to the Federal sector. While providing some relief
to our veterans in few cases, in many other cases I believe, these
processes more provide an inconsistent, unreliable and often
conflicting system of bureaucracy, which perhaps adds more insult and
emotional injury than relief for the majority of veterans seeking
assistance. I say this mainly because I believe the process is such an
uphill climb and battle for the service person to pursue, that most,
probably elect to walk away if their veterans preference (VP)
entitlement is denied under the Veterans Employment and Opportunity Act
(VEOA, 5 U.S.C. 3330a) or other employment rights under the Uniform
Services Employment and Reemployment Act (USERRA, 38 U.S.C. 4301 et
seq.).
Engaging this process without legal counsel or substantial legal
training is without a doubt most likely to end up in a loss. That is,
unless the government decides to support and champion your cause, which
given the fact of limited staff and resources to do so for these
purposes, chances are only the very lucky or politically connected or
represented by legal cases may find relief. This is for all cases, not
even exclusive to veteran's issues. Veterans, on the other hand,
usually are either returning from war or looking for employment from
the private sector, school or the ranks of the unemployed. Numerous
reports have been written documenting discrimination toward veterans
and denial of veterans preference and re-employment rights which as the
committee is well aware of has spirited recent legislation from
Congress to enact stricter veterans' employment law. Nonetheless, both
Federal and private sector employers continue to violate veterans'
employment and re-employment rights. This opinion is not my unique
observation, but now is found as a matter of fact. Given that a veteran
is able to get his claim filed and moved forward through labor and or
the special counsel getting to the MSPB (let alone winning) just to get
a hearing was problematic, and has just recently been addressed by the
U.S. Court of Appeals (USCA for the Federal Circuit, 05-3077,
Kirkendall v. Department of the Army, decided: March 7, 2007).
According to Circuit Judge Mayer, for the majority; p. 21 ``Until now,
it has been the board's practice to grant a hearing as a matter of
administrative grace, or deny one at its convenience.'' Later, in the
same paragraph, the judge writes ``the board's consistent
misapplication of the law can neither be used to defend its practice;
nor to justify what Congress did not intend.'' This case clearly showed
that veterans were being denied access to the MSPB over
misinterpretation of law and intent of Congress for filing VEOA claims
and holding hearings for veterans in USERRA cases.
I recall when I first expressed my intention to fight what happened
to me last year with my Federal employer (U.S. Department of Veterans
Affairs) an investigator in the office of compliance at the U.S.
Department of Affairs wished me good luck and stated words to the
effect that OSC (Office of the Special Counsel) only finds merit in
about 2 percent of the cases filed with them every year. Two percent,
that is a profound number. That means that 98 percent of government
employees and applicants for employment cases are unfounded. Wow! There
must be a huge number of government employees out there that are
misguided or our government has proven a phenomenal level of success in
this area of employment law. Perhaps, that formula could be used to
correct other areas of government inefficiency.
The truth of the matter is that most Federal employment claims are
eliminated by the complaint processes through Labor, OSC, MSPB, and
then what is left goes to the courts. The interesting figures would be
to find out what percentage of ``pro se'' litigant cases (chances are
that is where the unemployed veteran, veteran seeking re-employment,
and veterans returning from war or being separated from the military
are) are successful? Then find out how many veterans looking at their
odds of success walk away instead of seeking re-dress from the
government employer (who is represented by counsel) and their reality
of limited resources (many having to find employment and income for
their families, sooner than later) to hire counsel or go it alone and
make sure he/she is able to learn and apply the statutes accurately and
in most cases within 60 days. Saying all of that, the veteran has very
little chance of prevailing.
Perhaps, the committee could get the statistics of the ratio of
claims against Federal veteran employers and the punishment or
sanctions for violating veterans' rights. Counted on how many hands?
My story, although probably not typical, can show the committee
that even if a veteran manages to file a complaint properly, the
government, who is supposed to be helping him/her, can drop the ball at
various stages of the process, weakening or convoluting the situation
or issues to make things very complicated or make it easier for the
veteran just to quit rather than to swim against the tide and made to
feel unpatriotic to proceed.
My case shows that even with evidence and reliable proof, the
outcome of the case (without legal representation) remains up to the
government whether the veteran will prevail, even if his/her case is
righteous and the laws all support that conclusion, justice can be
avoided.
The bottom line is that without legal representation the veteran is
assured that a government lawyer will decide: (1) if there is a case,
and (2) the government administrative law judge (ALJ) will decide
whether to follow the law or not.
Reading some of the case laws, it is evident that some ALJ's
routinely find against pro se veteran litigants and with the volume of
petitions for review (PFR) that go to the full board and then the many
cases that go through the appellate process, it is more than evident
that ALJ's misapply the law routinely and dispose of cases routinely by
ensuring the veteran will have to appeal their decision. It is an
entirely new and complex legal process.
My case, if not true, would sound to the reasonable person as
incredible or an unbelievable story. I can explain it and I can prove
it, if there was anyone to take the matter to for action. But without a
lawyer, it is my word against the lawyers. They win by default!
I filed a mixed motive case: VEOA/USERRA-Discrimination/PPP-
Whistleblower Claim at the U.S. DOL-VETS. My VEOA claims were
immediately denied (60-day filing rule) despite the fact the government
(U.S. Department of Veterans Affairs (VA) failed to provide me with my
official notification of the action (being appealed) until well beyond
60 days and even that notice was ``unofficial'' (a faxed copy).
Supposedly, my Prohibited Personnel Practice (PPP) and USERRA claims
were forwarded by U.S. Department of Labor, Veterans Employment and
Training Services (VETS) to the Office of Special Counsel (OSC). OSC
did a PPP investigation, but failed to discover any prohibited
personnel practices, despite the Veterans Administration admitting
``lost consideration'' for passing me over as a veteran (a law
violation) under title 5 U.S.C. Later, it was discovered that the
USERRA charge was not processed by OSC and claimant (yours truly) had
to re-file the USERRA charge six (6) months later. That matter remains
pending. The VEOA appeals are at the MSPB and have been there since
April 2007. No discovery, no hearing. I have accused persons at the VA
of falsifying official records and sought investigation at the highest
levels at the Department of Veterans Affairs.
They (VA) have ordered me not to contact any more officials and
have refused to address the accusations of official misconduct,
falsifying official records and willfully disregarding governmental law
that I have raised. All my issues have been neatly placed in the
compartment of the DOL/OSC/MSPB complaint process system and without a
lawyer; you are at the total mercy of the system.
I have contacted my Congressman Jim Saxton, and the congressional
and Senate Armed Services Committee chairs. Neither houses have
investigated or mediated investigation of these serious claims by Labor
or the agency (VA) concerned to formally address violation of personnel
law that are not covered by the MSPB process. The next steps will
undoubtedly be the press. Unfortunately, after many years, citizens
still may not rely on Federal oversight and need to embarrass the
leadership into accountability.
It seems that no law is broken until a government lawyer says so,
regardless of the facts or the truth! My USERRA claim has not been
decided yet. I filed my claims 8-9 months ago; chances are I will lose
that case as well without my own lawyer.
My advice and testimony: the long and the short of it, tell the
veterans if you want to protect your employment rights, don't expect
the government's help. They take care of their own and you no longer
are one of them! Get a good lawyer; you are going to need one!
I believe from my experience this past year from many government
employees, being a veteran is meaningless to them, not to be honored,
not to be respected, but rather persons deserving of loss of their
employment rights!
Thank you for your interest in protecting the employment rights of
those who protect the United States.
God bless you and God bless America! Don't forget! Hire the Vet!
Sincerely,
Robert R. Farrell, Sr.,
Chaplain, New Jersey Veteran.
Senator Isakson. Again, Mr. Chairman, I want to thank you
very much for calling this hearing. I want to thank all of our
witnesses for coming. We have no higher priority than looking
after the best interest of the men and women who serve the best
interest of the citizens of this country every day.
[The prepared statement of Senator Isakson follows:]
Prepared Statement of Senator Isakson
Mr. Chairman, thank you for calling this hearing.
With the approach of Veterans' Day, it is more than
appropriate that we take time to both honor those who have
served in our military and those who serve today.
Since the tragic terrorist attacks of September 11, 2001,
our Nation has depended on our armed services more than ever in
waging the global war on terror. It goes without saying that
all of us, Republicans and Democrats, liberals and
conservatives, are appreciative of their efforts and those of
their families.
I am proud of my service in the Georgia Air National Guard.
I hired members of the Guard and Reserve as well as war
veterans during my time as a businessman. And I have voted to
send them into harm's way to defend this Nation.
Today, we address the employment of these brave men and
women upon their return from action.
More than half of the men and women serving in our all-
volunteer Armed Forces are members of the National Guard and
Reserve. Accordingly, employers play a vital role in enabling
their employees who are members of the National Guard and
Reserve to serve their country. It is also imperative that
employers be as flexible as possible as veterans attempt the
transition back to civilian life.
Federal law lays out the bare minimum that employers must
do to meet the needs of our Guard and Reserve. Employers must
not discriminate in hiring or other benefits of employment
against a person because of that person's obligation to perform
service in uniform.
However at hearings I held last Congress, we learned that
many, if not most, employers go well ``above and beyond'' that
which is required under Federal law.
Many employers voluntarily offer ``differential
wage payments,'' payments that represent wages active duty
individuals would have received if he or she were performing
services for the employer.
Many continue to extend health benefits to their
deployed employees and members of their families.
Many employers voluntarily provide a myriad of
services to the active service member's family including lawn
care, babysitting, snow removal, and on and on.
Mr. Chairman, I have a number of statements that I have
received from private employers documenting such efforts that I
would ask be entered into the record.
In the relatively few circumstances whereby the
relationship between the returning veteran and the employer
requires some level of mediation, the Labor Department's Office
of Veterans Employment and Training Service counseling veterans
and investigates their employment claims.
I suspect many of these disputes are simply the result of
misunderstanding or a lack of knowledge, not a conscious effort
to deprive veterans of their rights. In fact, over 90 percent
of claims are resolved immediately and amicably without any
legal action.
Of course, the employment remediation services provided by
the VETS Office are only a small part of that agency's mission.
Their far larger role is in providing employment and re-
employment assistance, training and placement for veterans.
Moreover, the VETS office constitutes only a tiny fraction
of the Government's total range of services available to
veterans. As a Member of the Veterans Committee, I hear
constantly about the ongoing efforts of the Department of
Veterans Affairs to improve services to those whom we owe so
much.
Again, I thank Senator Kennedy for calling this hearing.
The Chairman. Thank you very much. I see Sherrod Brown and
Senator Allard are here. Senator Brown is on the Veterans'
Affairs Committee. Senator Akaka is the Chairman. We're working
very closely because this is subject matter that they have done
a great deal of work on. We have, obviously, dual kinds of
interests. They have special responsibilities, charges. We have
the Department of Labor provisions, which we take very
seriously. If either of those Senators wanted to make a brief
comment----
Senator Brown. Thank you, Senator.
The Chairman [continuing]. We'd welcome it.
Statement of Senator Brown
Senator Brown. Mr. Chairman, thank you and thank you to all
the witnesses for joining us. Many of you have been in front of
the Veterans' Committee too, and I appreciate your input and
your public service and commitment to our country.
But Uniform Services Employment and Reemployment Rights Act
of 1994, USERRA, is one of those pieces of legislation that
should not be necessary. USERRA was written to prevent
discrimination against service members, as you know, when they
return home from deployment. Fair treatment should be a given,
but obviously sometimes it isn't.
When USERRA was established, no one contemplated the
military realities that we're seeing today. When passed 13
years ago, USERRA was designed for the short call-up. No one in
1994 contemplated multiple deployments, stop-loss deployment
extensions. And the USERRA, written more than a decade ago,
obviously is not addressed in today's economic realities.
Some soldiers returning home find that the job they once
had is gone, sometimes because the company they once worked for
no longer exists. The fact that we have increased the demands
on our soldiers, but employment protections have not been
redefined to reflect today's reality.
USERRA has worked for some service members and some
employers, of course, are doing the right thing. But good
companies, good local small businesses that want to comply with
the law are straining to honor their promise to Reservists
because of the extended and repeated deployments they and their
communities face. And there are other serious problems. Some
employers don't know about USERRA and, unfortunately, some
employers simply don't abide by it.
With more and more deployments, more and more companies and
government agencies are affected by the war. USERRA enforcement
must keep pace. We must do a better job of informing employers
of their duties and soldiers of their rights. Soldiers need to
know that they have the law on their side and the Federal
Government must ensure that USERRA is fully enforced for every
soldier in every State.
Perhaps the most appalling fact about the situation we're
discussing, is that one of the greatest offenders is the
Federal Government. In a recent report, Stars and Stripes, the
independent military newspaper, found that ``one in every six
job discrimination cases last year involving Guardsmen and
Reservists, centered on problems with a Federal agency.'' How
can we expect private businesses to respect the law when those
Federal agencies, when the Federal Government is not--is
violating it?
The Federal Government should be leading the way, not
dragging its feet. We're asking more and more from our service
members and they continue to answer the call to duty again and
again and again. Our employers, including the Federal
Government, must also answer that call.
Mr. Chairman, thank you for holding this hearing today.
The Chairman. Senator Allard.
Statement of Senator Allard
Senator Allard. Thank you, Mr. Chairman. I'd also like to
thank you for an opportunity to discuss issues facing our
veterans, who have admirably served our country and now seek to
reintegrate into our Nation's workforce.
I appreciate the testimony of the witnesses here today and
I'd like to extend a special welcome to Lieutenant Colonel
Steve Duarte from Centennial, CO.
We must never forget those who have served this country
proudly and defended the freedom we all hold dear. We're here
today because we have an interest in ensuring our veterans
receive the greatest care, including the guarantee of
reemployment once they return to civilian life.
Our Nation's returning war heroes possess diverse
abilities, broad range of skills, excellent training, and
proven character. These are qualities that many employers
support and are proud to employ.
In my home State of Colorado, the month of November 2007
has been designated as the Hire a Veteran First month. To
observe this month, activities are taking place across the
State. One such activity includes Mesa Counties first annual
Hire Vets First Employment Conference. The collaboration
between the Mesa County Workforce Center of the Colorado
Department of Labor and Employment and the employers of Mesa
County, aims to smooth the transition home. This multiple event
campaign serves as a fine example of the dedication and
commitment necessary in helping our Nation's war heroes. I
fully support these efforts and encourage other ventures like
this to be repeated throughout the country on an annual basis.
It is vital that we continue to do our part to help veterans
return as contributing members of society.
Thank you, Mr. Chairman, for the opportunity to make a few
remarks.
The Chairman. Thank you very much.
We have two panels, very special spokespersons on this
issue and we're very grateful for their presence. On our first
panel we have Chick Ciccolella. Do you have relatives in
Massachusetts? With a name like that, you must have some up our
way.
Mr. Ciccolella. I think one of the folks that produced the
Sopranos, sir.
[Laughter.]
The Chairman. We're glad to have you here.
He is the Assistant Secretary of Veterans' Employment and
Training Services at the Department of Labor, spent 28 years in
the Army, 1968 to 1996, served with 101st Airborne Division,
Vietnam 1969-1970. Before leaving the Army as an Infantry
Colonel, he was Senior Military Advisor for the Arms Control
and Disarmament Agency, Department of State.
Gordon Sumner, Executive Director, National Committee for
Employer Support of the Guard and Reserves, oversees the
activities of more than 4,200 volunteers, including more than
800 volunteer ombudsman, who informally mediate employment
disputes between service members and their employers.
Commissioned as a Reserve Officer, Dr. Summer had a successful
military career. He is a decorated combat veteran Airborne
Ranger, Master Army Aviator. He graduated from Jacksonville
State University, Alabama; he received a Ph.D. from Madison
University, an MBA from Auburn University, and a Masters in
Education from Boston University.
Scott Bloch serves as Special Counsel at the U.S. Office of
Special Counsel. Prior to that, Mr. Bloch served as Deputy
Director and Counsel to the Task Force for Faith-Based and
Community Initiative at the U.S. Department of Justice. Mr.
Bloch earned his Bachelor's and Law Degrees at the University
of Kansas, where he served as an adjunct professor.
I saw that Kansas-Nebraska game a week ago Saturday. I
don't know, did you see that game, Mr. Bloch?
Mr. Bloch. Yes. It's an unusual event for us to beat
Nebraska that badly.
The Chairman. Seventy-six to thirty-nine.
Since April 2007, Brenda Farrell has served as the Director
of GAO's Defense Capabilities and Management team, where she's
responsible for military and civilian personnel issues,
including related medical readiness. Ms. Farrell and the GAO
have produced significant insight in their reports, raising
serious questions about our Government's assistance of service
members whose rights are violated. Ms. Farrell is joined today
by George Stalcup, the GAO's Director of Strategic Issues. We
are enormously grateful to that agency. It provides
extraordinary help to us doing our job. We are grateful for
those who toil in those areas.
Chick, we'd welcome your comments.
STATEMENT OF CHARLES S. CICCOLELLA, ASSISTANT SECRETARY FOR THE
VETERANS' EMPLOYMENT AND TRAINING SERVICE, DEPARTMENT OF LABOR,
WASHINGTON, DC.
Mr. Ciccolella. All right, sir. Thank you very much,
Senator Kennedy, Senator Isakson, and Senators. Thank you for
the opportunity to testify before the committee on what
veterans face when they return from their deployments.
Senator, as you mentioned, since the onset of operations in
Iraq and Afghanistan, about a 1\1/2\ million and a half service
members have actually served in theater.
The Chairman. We've been joined by Senator Reed, who, as we
all know, is not only a member of the committee, but had a
distinguished military career as well. And we're very, very
grateful for his interest and involvement and participation.
Thank you, Jack, for being here.
Please continue.
Mr. Ciccolella. Yes, sir. As you noted, 1\1/2\ million
service members have served in these two theaters and many,
many of those 630,000 National Guard and Reservists that you
mentioned.
Each year, nearly 320,000 service members leave the
military. That's about 220,000 who are coming out of the active
duty and about 90,000 who leave the National Guard for their
jobs or other purposes. The committee has asked what these
veterans face when they return. Well, the deployments that
they're going on today, whether they're active duty or National
Guard or Reserve service members, present challenges for the
service members and also for their families. For the National
Guard and Reserve in particular, many members are married and
employed, so the long tours of duty overseas do interrupt their
normal roles as workers and parents and members of the
community. And they also present challenges for the employers,
in terms of bringing them back into the workforce. If a
National Guard or Reservist is self-employed, then they also
face economic losses.
In addition to this, as you mentioned, some service members
are coming back wounded and injured, some seriously wounded and
injured. And that will have a lasting impact on their lives and
their employment.
What service members need when they transition to civilian
life from active duty, is good information and help with the
tools and the skills that they will need to return to the
workforce. And they need this help early on. They need it
before they deploy and they need it when they come back during
their postdeployment demobilization.
The military, the Defense Department, the Department of
Labor, and the Department of Veterans Affairs work together to
help service members as they separate from active duty or as
they separate when they demobilize, in order to return to their
civilian life and jobs. In particular, all service members
today participate in pre- separation counseling. That's a four-
part program, which is pretty well organized. Active duty
members attend a transition employment workshop that helps them
to prepare a plan for separation. National Guard and Reserve
commanders provide information and assistance to their members
when they demobilize so they know how and where they can get
help.
In addition to this, almost every Governor has started a
program in their State to increase public support and awareness
of returning service members, and to provide additional
supporting services for them.
The Department of Labor provides employment assistance for
returning service members and veterans, including National
Guard members and Reservists. Our mission is to help them get
good jobs or to ensure they get their jobs back. And we do this
in three ways. We do that first by providing a transition
employment workshop for active duty military members that helps
with writing resumes, interviewing skills, and learning about
the job market before they get out. We've also made this TAP
employment workshop, or modified workshop, available to
returning National Guard and Reservists whenever it's
requested. And we work with the military to improve the
participation rates in this program.
Second, we help our veterans through the publicly funded
workforce system at the Nations over 3,200 job centers, or one-
stop career centers. At all these one-stops, veterans receive
priority of employment services. And at many of the one-stops
there are veteran employment representatives that are funded by
the Department of Labor, who work one on one with our veterans.
For returning National Guard and Reservists in particular,
the services of these veteran employment representatives are
very, very important, because as they're having a problem in
either getting a job back or in changing careers, these
veterans can help the veterans that are coming out.
We also provide one-on-one job training and counseling and
reemployment services to the seriously wounded and injured
service members, who can not return to active duty or their
Guard and Reserve units, through an innovative program we
started almost 4 years ago, that we call Recovery Employment
Assistance Lifelines. With our network of veteran employment
representatives, we actually network these service members once
they're stabilized, so that we can work with them or their
spouse or caregiver, to make sure they get employment.
We especially want to help veterans who are at risk of
becoming homeless or may already be homeless. And we do this
through two very successful programs call the Homeless Veteran
Reintegration Program and the Veterans Workforce Investment
Program.
The third way in which we help veterans is by protecting
their employment when they're called up to serve. We work hand-
in-hand with the Departments of Justice, Defense, and the
Office of Special Counsel to enforce USERRA, the law that we've
talked about that protects employment protections for veterans.
The Department of Labor administers USERRA, it's a top
priority. The specific goals are to protect the employment and
reemployment of veterans and to prohibit, as you mentioned,
discrimination due to military obligations.
Most USERRA problems result from misunderstandings in the
employers obligations. We've made the law much easier to
understand. We also work with the State and DOD and the
military departments and units to make sure that service
members are briefed both before and after they leave the
service. We've made USERRA information available 24 hours a
day. We also provide continuous assistance to service members
and employers so they can contact us on USERRA issues and we
also investigate USERRA complaints.
We investigate through a network of over 100 trained USERRA
investigators who are located in all the States, who are
trained to meet the workforce employment needs of today's
service members, not only in terms of USERRA, but also in terms
of preparing them for jobs. When we can't resolve a case, we
advise our clients of their right to refer the case to the
Department of Justice and the Office of Special Counsel if it's
a Federal sector case. And DOJ and OSC have enforcement
authority and can represent the clients before, in a Federal
Court or before the Merit Systems Protection Board.
USERRA complaints levels rose after 9/11. There were about
900 cases a year. The year before last there were 1,500.
They've decreased to about 1,400 investigations that we're
doing this year. We've been carrying on a demonstration, as you
know, with Mr. Bloch and the Office of Special Counsel, and the
General Accounting Office recently reviewed that. And we're
taking some very good actions to identify the important things
that the GAO identified as areas where we can improve.
Mr. Chairman, our agency is a small agency. We're dedicated
to the three very important missions that we have and to
getting veterans reintegrated into the workforce as quickly and
as smoothly as we can. We take our responsibilities very
seriously, especially when it comes to our returning veterans
from Iraq and Afghanistan.
And I thank you very much for the opportunity to appear
before you today, sir.
[The prepared statement of Mr. Ciccolella follows:]
Prepared Statement of Charles S. Ciccolella
Chairman Kennedy, Ranking Member Enzi, and distinguished members of
the committee, thank you for the opportunity to testify on what
returning Iraq and Afghanistan veterans face when they come home and
return to their civilian employment. Since the onset of military
operations in Afghanistan and Iraq, over 1 million members of the
active duty military have served in these two theaters. In addition,
many of the Nation's National Guard units and Reservists have also been
called to active duty in support of the Global War on Terror and have
served in these theaters or elsewhere.
In fact, the Department of Defense (DOD) reports that over 600,000
National Guard and Reserve mobilizations have occurred since September
11, 2001. This represents the largest deployment of the National Guard
in the past half century.
WHAT RETURNING VETERANS FACE WHEN THEY COME HOME
These situations present some complex issues because the
deployments create challenges for service members and their families.
For the National Guard and Reserve in particular, many of their members
are married and employed. Long tours of duty overseas interrupt their
normal roles as workers, parents and members of the community. Lengthy
tours of duty also challenge employers as they deal with these absences
and with the reintegration of service members back into the workforce.
In addition, some National Guard and Reserve members report
themselves as self-employed or own a small business. Extended
deployments may mean they face special problems, including economic
losses or other adverse effects.
Many service members are returning severely wounded and injured.
Their recoveries are often long and difficult, and this may have a
lasting impact on both them and their families. They need and deserve
special assistance.
To put this into perspective, each year, nearly 320,000 military
members return to civilian status--either through retirement, voluntary
separation from active duty, demobilization or discharge from the
National Guard or Reserve, or as a result of a discharge due to
disability.
SERVICE MEMBERS NEED GOOD INFORMATION AND ASSISTANCE WHEN THEY RETURN
TO THEIR CIVILIAN LIVES AND JOBS
To help service members' transition to civilian life from active
duty, they must not only have good information, but also the tools and
skills to make their transition back to civilian life as smooth as
possible. This information and assistance comes from many sources.
DOD and each of the military services strive to assist service
members as they separate from active duty or demobilize and return to
their civilian life and jobs.
Active duty members participate in formal separation counseling and
transition assistance programs when they are preparing for discharge.
National Guard and Reserve commanders provide information and
assistance to their members when they demobilize, so their members know
how and where they can receive help if they need it.
States also assist. Most States have created programs to increase
public support and awareness of returning service members. Services
include outreach and family support activities, financial assistance
such as emergency funds, educational assistance, mental health and
other comprehensive services and assistance to augment the services
provided by the Federal Government.
DEPARTMENT OF LABOR (DOL) EMPLOYMENT SERVICES FOR RETURNING SERVICE
MEMBERS AND VETERANS
DOL provides a variety of employment assistance programs for
returning service members and veterans, including National Guard
members and Reservists. It is the job of DOL to help these men and
women transition into the civilian sector through job counseling,
referral and placement services.
Transition Assistance
First, through DOD's Transition Assistance Program (TAP), DOL helps
returning veterans learn how to market their unique skills and
experience to potential employers. DOL provides the TAP employment
workshop that helps with writing resumes, preparing for interviews, and
learning about the job market.
Most of these employment workshops are facilitated by DOL-funded
veterans employment representatives who are also located throughout the
Nation at the many Career One-Stop Centers in the public workforce
system.
We also have made the TAP employment workshop, or a modified TAP
employment workshop, available to returning National Guard and
Reservists on a demand basis. We are supporting TurboTAP, a DOD
initiative to provide a wide array of transition assistance information
online.
We have made the TAP workshop more relevant and, with the help of
DOD, we are working hard to increase TAP participation in all the
services. The Administration's goal is for 85 percent of active duty
transitioning servicemembers to participate in TAP employment
workshops.
Job Counseling and Placement Assistance
Secondly, America's publicly funded workforce system provides
priority services to help veterans find good jobs and careers at over
3,200 full service and affiliate One-Stop Career Centers. The
specialized services of the Local Veterans Employment Representative
(LVER) and the Disabled Veteran Outreach Program (DVOP) specialist are
also available to both transitioning service members and veterans.
For returning National Guard and Reservists in particular, the
services of these veteran employment representatives are important from
two points of view. First, the DVOP or LVER can link service members to
assistance if they are having problems returning to their employers.
Secondly, if the returning National Guard member or Reservist desires
to seek another job instead of returning to the pre-service employer,
they can receive a full range of workforce and employment services on a
priority basis from One-Stop Career Center staff.
Employment Assistance for Veterans Who Need Help the Most
Four years ago, recognizing the special employment challenges that
certain returning Iraq/Afghanistan veterans face in the workplace, the
Department initiated the Recovery Employment Assistance Lifelines, or
REALifelines program. This program provides one-on-one job training,
counseling, and re-employment services to seriously wounded and injured
service members who cannot return to active duty.
REALifelines staff, both Federal and State, are forward-positioned
at seven major military medical facilities, at the Department of
Defense Military Severely Injured Center, with the U.S. Marine Corps
and with the U.S. Army at several installations. Through REALifelines,
we help wounded or injured veterans and their spouses or caregivers
build new and rewarding careers in the private sector.
DOL has also focused on assisting any veterans who may find
themselves homeless or facing other barriers to employment. We do this
through the Homeless Veterans Reintegration Program (HVRP) and the
Veterans Workforce Investment Program (VWIP). While we are not seeing a
large number of returning Iraq/Afghanistan veterans in these special
programs, we do see some and we conduct special outreach to these
veterans.
Protecting Service Members' Employment
One of our Department's top priorities is protecting our military
members' jobs when they're called up to serve. We work hand-in-hand
with the Departments of Defense, Justice and Office of Special Counsel
(OSC) to enforce USERRA, which was signed into law in 1994. The goal of
this law is to protect the employment and re-employment rights of
veterans returning to civilian employment after active-duty service.
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. The law prohibits employer
discrimination due to military obligations and provides re-employment
rights to returning service members. DOL's Veterans' Employment and
Training Service (VETS) not only investigates complaints by service
members 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 DOD's Office of the Assistant Secretary for
Reserve Affairs' Employer Support of the Guard and Reserve (ESGR) to
ensure that service members are briefed on their USERRA rights before
and after they are mobilized. We conduct continuous USERRA outreach and
education to inform service members 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. Since 9/11, VETS has provided USERRA assistance to over
490,000 service members, employers and others.
VETS has also made it easier for a service member 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. The Advisor
provides the user with information on eligibility and rights and
responsibilities under the law and 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.
VETS does this through a nationwide network of over 100 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 service members. 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, service
members, veterans, and veterans' organizations on employment and re-
employment issues at the national, State and local levels, including at
locations where service members are demobilized.
VETS coordinates with ESGR, the OSC, and the Department of Justice
(DOJ) to ensure the employment rights and benefits for returning
service members are protected. 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 DOL is unable to resolve the
complaint and/or when the service member 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 service members and employers and to the
agency's user-friendly 2005 regulations.
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 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, of which 13 were transferred because VETS concluded
that they might include prohibited personnel practices.
ALL USERRA CLAIMS RECEIVED BY VETS 2/8/05--9/30/07
GAO's Report (GAO-07-907, July 2007) evaluating 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 DOJ, if a non-Federal 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 this month 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 data base.
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 online 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.
VETS is proud of its record in enforcing USERRA since its
enactment. For example, over the past 10\1/2\ years, 91 percent of
Federal USERRA cases were resolved by VETS to the satisfaction of both
parties, without need for referral to the OSC. Furthermore, 83 percent
of ``meritorious'' Federal USERRA cases resolved by VETS (claims
granted or settled) reached resolution within 90 days.
VETS remains 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 service members and veterans covered under
USERRA, regardless of whether their employer is the Federal Government,
a State or local government, or a private entity.
CONCLUSION
The United States has the best, most capable, most technologically
advanced military in the world. The dedication to service and the
willingness of our military to sacrifice in order to support our
national security is extremely important. Our service members are the
guarantors of our freedom and preserve our way of life. Our country is
a better and safer place because of them.
Our men and women in uniform are known for their intelligence,
strong work ethic, loyalty, discipline, and leadership abilities. They
have the highly marketable professional qualities that employers are
looking for.
Mr. Chairman, DOL takes seriously its responsibilities for
assisting our veterans, especially those returning from Iraq/
Afghanistan, in finding good jobs and careers and in protecting their
job rights. These brave men and women are protecting our national
security and we must do everything we can to help protect their
economic and job security.
Thank you for allowing me to testify before this committee today. I
am prepared to respond to your questions.
The Chairman. Thank you.
Mr. Sumner.
STATEMENT OF L. GORDON SUMNER, PH.D., EXECUTIVE DIRECTOR,
NATIONAL COMMITTEE FOR EMPLOYER SUPPORT OF THE GUARD AND
RESERVE, ARLINGTON, VA
Mr. Sumner. Mr. Chairman, thank you for this opportunity to
come and participate in your panel today. You have a copy of my
prepared testimony that I have submitted for the record. And
again, thank you very much for this opportunity. I'm looking
forward to answering yours and your panel member's questions.
And before I leave, to Senator Reed, I'd also like to add,
Airborne all the way, sir.
[The prepared statement of Mr. Sumner follows:]
Prepared Statement of L. Gordon Sumner, Jr., Ph.D.
Chairman Kennedy 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 issues faced by returning
Iraq/Afghanistan veterans when they come home and return to their
civilian employment, with a focus on how the Uniformed Services
Employment and Reemployment Rights Act (USERRA) is working to protect
our returning veterans as they transition back into the workforce.
As you know, the Uniformed Services Employment and Reemployment
Rights Act of 1994 protects the employment and re-employment rights of
Federal and non-Federal employees who leave their employment to perform
military service. The role of informing service members and employers
about this law, and of enforcing it fall to several different
government organizations. It should be noted that USERRA covers all
employees and employers except screeners employed by the Transportation
Security Administration.
Employer Support of the Guard and Reserve (ESGR) is a Department of
Defense organization that seeks to develop and promote a culture in
which all American employers support and value the military service of
their employees. 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), the Small
Business Administration, and industry associations such as the Chamber
of Commerce and others, to create 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 advice or to
participate in any formal investigative or litigation process. Our part
in the USERRA issue is to inform and educate our customers--service
members and their civilian employers--regarding their rights and
responsibilities under the USERRA statute. ESGR also provides informal
mediation services. We have over 1,000 trained volunteer ombudsmen
throughout the country and a national call center in Arlington,
Virginia, to provide those services. Our call center received over
13,000 requests for assistance during fiscal year 2007. 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 Understanding (MOU) between ESGR and DOL-VETS, ESGR
informs those service members whose cases ESGR is unable to
successfully mediate within 14 days of their options to either contact
the DOL-VETS or to retain private counsel. During fiscal year 2007,
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 DOL-VETS under our MOU, 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, DOL investigates and attempts to resolve claims
filed by service members, 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 have their
cases referred to the Department of Justice for further review and
possible representation. Of course, all parties reserve the right to
engage private counsel at any time.
As you know, 639,000 Reserve component members have been mobilized
since the terrorist attacks on September 11, 2001. There are 93,898 RC
members mobilized today (November 1, 2007). The use of the Reserve
component has shifted from a strategic reserve to an operational
reserve whereby the National Guard and Reserve no longer are forces
held in reserve but are an integrated and integral part of our total
force.
The Department is well aware of the stress this operational use has
on our service members and their employers. To that end, Secretary
Gates has provided policy guidance designed to give more predictability
as to the frequency and duration of RC mobilizations so that both RC
members and their employers can better plan their professional and
personal futures.
As I stated earlier, ESGR operates proactive outreach programs to
inform, educate, and recognize the employers of our service members. We
do this to raise awareness of USERRA and to thank employers for their
support. As you know, employers suffer twice the cost when their
employees are mobilized for military duty. They lose their trained,
productive employees and they have to often hire replacements for the
time those employees are gone. We talk all the time about the costs
borne by our service members, and by their families. Those are no doubt
real costs. But we do not often talk about the costs borne by the
employers of Guard and Reserve members. These employers do not have a
choice when we take away their employees for months. Despite these very
real costs, employers across the country continue to provide incredible
support, and it is the least we can do to publicly recognize that
support.
All of our records, including the numbers of RC members who contact
us to recognize their employers, to the day-to-day interaction ESGR
volunteers across the country have with service members and employers,
to the ever decreasing numbers of USERRA cases handled by ESGR,
indicate that employer support for the Guard and Reserve remains
strong. Of course there are instances of USERRA violations, but I urge
caution to not interpret isolated but highly visible problems as broad-
based policy problems.
We are working with the individual uniformed services to raise
awareness of USERRA and to provide training about USERRA to all RC
members. We also continue to work with the appropriate Federal
Government agencies such as the DOL-VETS, the Department of Veterans
Affairs, and the Small Business Administration, to better communicate
to service members and their employers about USERRA, transition
assistance and reintegration programs.
The Department has also provided ESGR more resources over the past
5 years to better serve our customers and we now have 150 full-time
staff around the country in addition to the almost 4,500 volunteers. We
also have a national customer service center that is operational 12
hours per day during the workweek to provide service.
We continue to believe that the existing USERRA process will
continue to best serve the interests of service members, 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. 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.
The Chairman. There you go. Are you going to say something
about Boston University and----
[Laughter.]
The Chairman [continuing]. Your wonderful experience you
had in Boston in all those years.
Mr. Sumner. Well, I'm----
The Chairman. But we'll settle for Airborne.
Mr. Sumner. In fact, it was so good, I'm going to go back
to Harvard this summer.
The Chairman. Good for you. Thank you.
Mr. Bloch.
STATEMENT OF SCOTT BLOCH, SPECIAL COUNSEL,
U.S. OFFICE OF SPECIAL COUNSEL, WASHINGTON, DC.
Mr. Bloch. Chairman Kennedy, Senator Isakson, members of
the committee. Good morning and thank you for calling this
hearing. Thank you for the opportunity to testify on matters of
concern to our service members, their families, and our
national security.
My name is Scott J. Bloch, Special Counsel of the United
States, and head of the U.S. Office of Special Counsel. Sunday
is Veterans Day, when we honor the sacrifice and dedication of
those who protect our Nation.
It is fitting to ask how to help those who serve on active
duty and expect their civilian employers to welcome them back.
Sadly, some returning service members are turned away at their
job site or denied full rights and benefits. The message is,
welcome back, you're fired.
Sometimes that employer is the same Federal Government that
mobilized the service member. Federal Government employees are
about 10 percent of the National Guard and Reserve, but they
file a greater percentage of claims under USERRA. This law
notes that the Federal Government should be a model employer.
When I took office nearly 4 years ago, I found the Federal
Government anything but a model employer. Reserve service
members who were being cycled into Iraq and Afghanistan and
others performing necessary Guard and Reserve duty to support
these foreign campaigns, were routinely coming back to
indifference, hostility, and job discrimination.
An additional harm occurs when service members, who are
lucky enough to know their rights and turn to the Federal
bureaucracy, are denied justice by either having it delayed or
by being told they have no case after a lengthy drawn-out
process. Sometimes service members have had to wait a year, 2
years, even longer to learn they had no case. Many were not
told they had the right to come to OSC for relief. Look at our
charts that show our process under the demonstration project
versus labors process, which we have provided to the committee.
Facing the loss of a job after military service is a great
slap in the face. But then being cast into a system that seems
not to care how long the service member has to wait for relief
is devastating and totally avoidable. I'm determined to change
all of that. I created a dedicated USERRA unit at OSC and
started to take USERRA seriously.
We filed the first ever prosecution by OSC in June 2004. It
took about 2 years for that case to come our way, after she was
told she had no case. When we got it, we did a new
investigation of this case, involving a long-term Department of
Veterans Affairs nursing supervisor with a Ph.D. She was fired
after lengthy service for VA Hospitals. Her supervisor said,
``We can't have these people going on military leave.'' We
obtained all of her back pay and interest on that back pay and
her private attorney's fees, but it took 3 years to obtain
justice. And by that time her career was over.
I have filed a total of five USERRA prosecutions since
becoming the Special Counsel. We still have one pending. We
obtained full corrective action in the other four, even though
in two of them the claimant had been told they had no case
before they came to us.
Such is the Army Corps of Engineer employee who entered the
Air Force and then came back to the Army Corps and was told he
had no job. He filed a complaint and was told he had no case.
When we got the case over a year after his initial complaint
and several months after he requested referral to OSC, we
determined the Army Corps had violated his rights and filed
suit. We got him back pay of $85,000 and his job back in just
over a year.
If Congress leaves matters in the status quo, this is what
you will continue to hear regarding service members. We are
getting corrective action for one in four complainants. We do
so in less than 150 days. We have prosecutorial power. GAO
found that DOL did not always tell service members they could
come to OSC when they turned them down. Labor has been counting
cases that close administratively that OSC would never have
opened. We believe DOL did not count the time a service members
case is in a regional solicitor's office, which can be up to a
year sometimes.
OSC is the only Federal investigative agency that can be a
true single point of contact for Federal employees making
USERRA claims. If Congress gives the matter back to DOL, cases
still must come to OSC for prosecution, assuming VETS tells a
service member of his rights. And all cases must come to us if
there is a prohibitive personnel practice involved. OSC is the
personnel law specialist in the Federal Government. If OSC
receives all Federal USERRA claims at the outset, we will
continue to work hard to remove this devastating problem that
returning service members face.
I look forward to your questions.
[The prepared statement of Mr. Bloch follows:]
Prepared Statement of Scott J. Bloch
Chairman Kennedy, Ranking Member Enzi, and members of the
committee, good morning, and thank you for the opportunity to testify
today on important matters of concern to our service members, their
families, and ultimately our national security.
My name is Scott J. Bloch and I am Special Counsel of the United
States and head of the U.S. Office of Special Counsel (OSC).
This Sunday is Veterans' Day, a day for Americans to honor the
sacrifice and dedication of those who have served, and those who serve
today, to protect our Nation. Members of the U.S. military serve our
Nation in combat and through their readiness for combat. As veterans
returning to civilian life or continuing to serve as members of the
National Guard and Reserve, they can be superb employees because of the
skills they have acquired as members of the military.
Members of the U.S. military are graduates of one of the world's
largest training organizations, with highly specialized knowledge in
areas such as engineering, healthcare and information technology.
Moreover, their military experience builds judgment, dedication,
resourcefulness, and leadership--personal qualities that should be
valued by employers.
This is the week before Veterans' Day, and it is an especially
appropriate time for us to examine how we can provide better support
for members of our military who serve on active duty, and expect to be
welcomed back by their civilian employers.
Unfortunately, not all employers understand their obligations to
their employees who meet their own obligations to our Nation through
active duty service. Some service members, mostly members of the
National Guard and Reserve who return from active duty, many from
combat duties in Iraq and Afghanistan, are turned away by their
civilian employers or not afforded their full rights and benefits upon
their return.
It is difficult to imagine an employer welcoming back a returning
service member with words to the effect, ``Welcome back--you're
fired!'' But it happens--and not only in the private sector. Some
members of the National Guard and Reserve, who also serve their country
as Federal civilian employees, find themselves returning from active
duty to a government unwilling to take them back, or only willing to
take them back with less pay, status, or benefits. 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\ The very government that sends them
forth into combat might deny them their livelihood when they come
marching home.
---------------------------------------------------------------------------
\1\ 38 U.S.C. Sec. 4301(b).
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Reasonable people would cry, ``There oughta be a law! '' But there
have been laws to protect the jobs of returning veterans since 1940,
when the Veterans' Reemployment Rights (VRR) law was enacted. The VRR
law served our Nation reasonably well for more than half a century.
Over the years, however, numerous piecemeal amendments and sometimes
conflicting judicial constructions made the law confusing and
cumbersome. There were also some loopholes in the VRR enforcement
mechanism, especially as it applied to the Federal Government as a
civilian employer.
Better protections were needed, and 13 years ago, Congress enacted
and President Clinton signed into law the Uniformed Services Employment
and Reemployment Rights Act of 1994, or USERRA. It 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.
Under USERRA, a person claiming a violation by any employer
(Federal, State, local, or private sector) is permitted to make a
complaint to the Department of Labor's Veterans' Employment and
Training Service (DOL-VETS) which must investigate and attempt to
resolve the matter. If DOL-VETS cannot resolve a complaint involving a
private, State, or local employer, the individual may file a private
lawsuit or request a referral to the Attorney General for possible
representation in Federal district court. If the employer is a Federal
executive agency, the individual may appeal to the MSPB or request a
referral to OSC for possible representation before the MSPB and, if
necessary, the U.S. Court of Appeals for the Federal Circuit.
Thus, the passage of USERRA expanded OSC's role as protector of the
Federal merit system and Federal workplace rights by giving OSC
prosecutorial authority over Federal-sector USERRA claims. However, it
also established a bifurcated process in which DOL-VETS first
investigates and attempts to resolve such claims, followed by possible
OSC prosecution before the MSPB when there is no resolution by DOL-
VETS.
Recognizing the inefficiencies inherent in this process, as well as
OSC's unique expertise in investigating and prosecuting Federal
employment claims, Congress passed the Veterans Benefits Improvement
Act of 2004 (VBIA), which established a demonstration project whereby
OSC receives roughly half of Federal USERRA claims from the beginning
(i.e., when they are filed and prior to investigation).\2\ This
demonstration project eliminated (for some claims) the often
cumbersome, time-
consuming, bifurcated process whereby Federal USERRA claims bounce
around different Federal agencies before being resolved by allowing OSC
to apply its extensive experience investigating other Federal personnel
laws to USERRA. By combining both the investigative and prosecutorial
functions in one agency, Congress hoped to determine whether OSC could
provide better service to Federal employees filing USERRA claims.
---------------------------------------------------------------------------
\2\ Under the demonstration project, OSC has exclusive
investigative jurisdiction over Federal-sector USERRA claims where: (1)
the claimant has a Social Security Number ending in an odd digit, or
(2) the claimant alleges a Prohibited Personnel Practice (PPP) as well
as a USERRA violation (regardless of Social Security Number). DOL-VETS
retains investigative jurisdiction over all other Federal-sector USERRA
claims.
---------------------------------------------------------------------------
The results of the demonstration project speak for themselves: OSC
has obtained corrective action for service members 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.
OSC achieves this high rate of corrective action through its thorough
investigations, expert analysis of the law, ability to educate Federal
employers about the requirements of USERRA, and a credible threat of
litigation before the MSPB.
In addition to obtaining corrective action for the individual
claimant, in our role as protector of the Federal merit system, OSC
seeks ``systemic'' corrective action to prevent future violations by an
agency. For example, we have assisted agencies in modifying their leave
and promotion policies to comply with USERRA, provided USERRA training
to agency managers and HR specialists, and required agencies to post
USERRA information on their Web sites and in common areas.
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. The numerous corrective
actions we have obtained for returning service members include back
pay, promotions, restored benefits and seniority, time off and systemic
changes that prevent future USERRA violations where they work.
Congress tied the outcome of the USERRA demonstration project to an
evaluation by the Government Accountability Office (GAO). OSC
participated in the evaluations conducted by the GAO, but we were
disappointed that their draft report did not meet the April 1, 2007
deadline mandated by Congress. Instead, 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 fiscal
year 2008 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,
bypassing the bifurcated process? We submit that the answer is an
emphatic ``yes.''
We, of the U.S. Office of Special Counsel, are privileged to be
engaged in the enforcement of USERRA. Both as Special Counsel, and as a
father of a Marine, I am proud of the work we are doing to protect the
employment rights of those who give of themselves for our national
security. We employ members of the National Guard and Reserve at OSC;
my Deputy Special Counsel is a lieutenant colonel in the Marine Corps
Reserve, and four of our recent hires served in the military and are
still in the 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 specialized USERRA unit is staffed with attorneys and
investigators who are experts in Federal personnel law and have years
of experience investigating, analyzing, and resolving allegations of
violations of Federal employment rights. 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 and the predecessor re-employment statute,
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 the only Federal investigative agency that can provide a
true single point of contact for Federal employees making claims under
USERRA. Even if Congress decided to return exclusive investigative
jurisdiction to DOL-VETS, USERRA cases involving Prohibited Personnel
Practices would still have to be passed to OSC. Granting OSC exclusive
jurisdiction over the Federal sector USERRA cases would ensure that
Federal employee claimants would benefit from having a single agency
resolve their claim. For this reason, Federal sector USERRA
investigation and enforcement is a natural ``fit'' for OSC.
We are proud of our achievements enforcing USERRA. We have filed
the first ever prosecutions by OSC in the law's history, obtaining
corrective action in several cases that had been delayed for years or
considered non-winnable. For example, the case of an Army Corps of
Engineers employee, who was not re-employed after serving in the Air
Force, remained unresolved until OSC received the case. We prosecuted
before the MSPB and obtained full corrective action for the service
member, including $85,000 in back pay, re-employment in his former
position, and full restoration of benefits. And, when an injured Iraq
war veteran returned from duty only to be sent home by his Federal
employer because he could no longer perform his former job, we
convinced the agency to find him a suitable job consistent with his
physical limitations, along with back pay.
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 service members, and doing so as quickly
as possible. These patriots have given their all in the service of this
great Nation. They should never be hung out to dry by a long, drawn-
out, confusing process. OSC is passionate about obtaining relief for
all who come to us, and no less for the soldiers of our country who
also serve in the Federal Government.
Moreover, giving OSC exclusive jurisdiction over USERRA Federal
sector claims would remove the burden from the Department of Labor's
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 service members would be doubly
positive--for Federal service members who would benefit from OSC's
specialized experience, and for those private sector service members
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 30 years. That deployment is not limited to the
approximately 200,000 service members 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 93,898 members of the
National Guard and Reserve had been mobilized and were on active duty.
It is when these service members 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 service members who have been turned away by 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.
The Chairman. Thank you.
Ms. Farrell.
STATEMENT OF BRENDA FARRELL, DIRECTOR OF MILITARY AND CIVILIAN
PERSONNEL ISSUES IN THE DEFENSE CAPABILITIES AND MANAGEMENT
TEAM, GOVERNMENT ACCOUNTABILITY OFFICE, WASHINGTON, DC.
Ms. Farrell. Mr. Chairman, Senator Isakson, members of the
committee. George Stalcup and I are pleased to be here today to
discuss the activities of the Departments of Defense, Labor,
Justice, and the Office of Special Counsel regarding USERRA.
This act protects millions of people, largely National Guard
and Reserve members, as they transition between their military
duties and their civilian careers.
Mr. Chairman, in 2004, you recognized the issues associated
with USERRA, particularly in light of the significant number of
Reservists serving in Iraq and Afghanistan who would be
demobilized, returned to their civilian jobs, and possibly
called back to duty. Our testimony today is particularly
relevant, because more than \1/2\ million Reservists have been
called to duty since September 11, 2001.
Let me briefly summarize our written statement, which is
based upon work that we have conducted for you, Mr. Chairman,
in response to Congressional mandates. Our statement is
presented in three parts. First, let me elaborate on the
overall process used to implement USERRA. The fact that four
Federal agencies have key USERRA roles makes enforcement of the
act somewhat complex.
DOD along with Labor is responsible for informing service
members and employers of their rights, benefits, and
obligations under USERRA. Much of DOD's outreach is
accomplished through volunteers with its employer support of
the Guard and Reserve. This organization also has ombudsman who
act as mediators for informal complaints that arise between
service members and their employers. And in GAO's February 2007
report, we noted that nearly 10,000 informal complaints had
been filed with DOD in fiscal years 2004 and 2005. When
ombudsman can not resolve the complaint, service members have
several options. No. 1, service members can file formal
complaints with Labor's Veterans Employment and Training
Service. No. 2, service members can file complaints directly in
court if it involves non-Federal employers or the Merit Systems
Protection Board if it involves Federal Executive Branch
employers. No. 3, certain Federal employees can file complaints
directly with OSC under a Federal demonstration project.
When a service member files a formal complaint with Labor,
1 of its 115 investigators attempts to resolve it. If its
investigators are unable to resolve the complaints, Labor is to
inform the service members that they may request to have their
complaints referred to Justice for complaints against private
sector employers or State and local governments, or to OSC for
complaints against Federal Executive Branch agencies.
If Justice or OSC determines that the complaint has merit,
it will attempt to solve the complaint directly with the
employer, and if unsuccessful, represent the complainant in
court for those referred to Justice or before the Merit System
Protection Board for those referred to OSC. If Justice or OSC
determine the complaint has no merit, it notifies the claimant
of his or her right to pursue a cause of action.
The second part of our statement addresses the
implementation of USERRA. Although USERRA defines individual
agency roles and responsibilities, no single office has
visibility to focus on program results.
Agencies have developed agency-specific output, rather than
cross-cutting goals directed toward resolving service members'
complaints. For example, agency goals address the complaints
processing times of each stage of the process, rather than the
entire time that elapses while service members wait to have
their complaints addressed.
GAO's 2005 review found that for certain cases, those that
were closed and reopened two or more times, the total elapsed
time that service members waited to have their formal
complaints fully addressed averaged about 20 to 21 months, from
the time they first filed their formal complaint with Labor,
until the complaint was fully addressed by Labor, Justice or
OSC.
Finally, the last part of our statement notes that all four
agencies have generally been responsive to GAO's
recommendations, including those in our most recent report,
issued in July 2007, to improve the implementation of USERRA,
on outreach to employers, data sharing and trend information,
reporting to Congress, and the internal review of Labors'
investigator's determinations of USERRA complaints.
With the Nation's attention so focused on those who serve
our country, it is important that their employment and
reemployment rights are protected.
This concludes my opening statement, we would be pleased to
take questions when you wish.
[The prepared statement of Ms. Farrell follows:]
Prepared Statement of Brenda S. Farrell
Mr. Chairman, Senator Enzi, and members of the committee, we are
pleased to be here today to discuss four Federal agencies' activities
regarding the Uniformed Services Employment and Reemployment Rights Act
(USERRA) of 1994.\1\ USERRA protects the employment and re-employment
rights of millions of Federal and non-Federal employees who leave their
civilian employment to perform military or other uniformed service.
USERRA also prohibits discrimination in employment against individuals
because of their uniformed service, obligation to perform service, or
membership or application for membership in the uniformed services.
USERRA further prohibits employer retaliation against any individual
who engages in protected activity under USERRA, regardless of whether
the individual has performed service in the uniformed services.
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\1\ Pub. L. No. 103-353 (1994), as amended, codified at 38 U.S.C.
Sec. Sec. 4301-4334.
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Mr. Chairman, in 2004 you recognized the issues associated with
USERRA, particularly in light of the significant number of National
Guard and Reserve members serving in Iraq and Afghanistan who would be
demobilized, returned to their civilian jobs, and possibly called back
to duty.\2\ Our testimony today is particularly relevant because more
than 500,000 reservists have been called to duty since September 11,
2001.
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\2\ The term reservists refers to the collective forces of the Army
National Guard, Air National Guard, Army Reserve, Air Force Reserve,
Navy Reserve, Marine Corps Reserve, and the Coast Guard Reserve.
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Our testimony is based on work that we have conducted for you and
in response to congressional mandates. Since 2002, we have issued
several reports on Federal agency efforts to carry out USERRA
responsibilities. The four agencies primarily responsible for assisting
service members under USERRA are the Department of Defense (DOD), the
Department of Labor (DOL), the Department of Justice (DOJ), and the
Office of Special Counsel (OSC).\3\ In our reports, we have made
numerous recommendations to these agencies concerning the
implementation of USERRA.\4\
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\3\ The law also gives outreach responsibilities to the Secretary
of Veterans Affairs, but we did not review actions of the Department of
Veterans Affairs in supporting USERRA because its role is more limited.
\4\ GAO, Military Personnel: Improved Quality Controls Needed Over
Servicemembers' Employment Rights Claims at DOL, GAO-07-907
(Washington, DC.: July 20, 2007); GAO, Military Personnel: Additional
Actions Needed to Improve Oversight of Reserve Employment Issues, GAO-
07-259 (Washington, DC.: Feb. 8, 2007); GAO, Military Personnel:
Federal Management of Servicemember Employment Rights Can Be Further
Improved, GAO-06-60 (Washington, DC.: Oct. 19, 2005); GAO, 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, DC.: Oct. 6, 2004); GAO, Reserve Force: DOD Actions Needed
to Better Manage Relations Between Reservists and Their Employers, GAO-
02-608 (Washington, DC.: June 13, 2002).
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Our testimony is based on our three most recent reports on USERRA
and examining whether DOD, DOL, DOJ, and OSC have effectively carried
out their USERRA responsibilities.\5\ Our testimony addresses (1)
organizational accountability in the implementation of USERRA and (2)
actions that the agencies have taken to improve their internal
processes to implement USERRA.
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\5\ We recently testified on issues related to our July 2007
report. GAO, Military Personnel: Considerations Related to Extending
Demonstration Project on Servicemembers' Employment Rights Claims, GAO-
08-229T (Washington, DC.: Oct. 31, 2007).
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As noted, this testimony is based on our prior work. For that work,
we reviewed applicable laws, guidance, regulations, and operations
manuals. To assess how efficiently and effectively DOD, DOL, DOJ, and
OSC address USERRA complaints, we collected, reviewed, and analyzed
data from a wide variety of sources (including the four Federal
agencies) and interviewed responsible officials.\6\ We also reviewed
DOD survey data and conducted original analysis on these data. To
identify progress made by DOD in capturing employer information, we
obtained and analyzed reporting compliance data from DOD and its
reserve components. Further, we analyzed the number of disability
complaints filed with DOD and DOL between fiscal years 2004 and 2006.
We found DOD's civilian employment information and Employer Support of
the Guard and Reserve (ESGR) databases to be of undeterminable
reliability.
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\6\ Federal agencies use a variety of terms to describe service
member allegation of USERRA violations, including ``complaints,''
``claims,'' ``cases,'' ``matters,'' and ``referrals.'' For clarity and
consistency throughout this testimony, we use the term complaint to
describe these service member allegations. We refer to complaints to
DOD as ``informal complaints'' and complaints to DOL, DOJ, and OSC as
``formal complaints.''
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In our October 2005 report, we compared data obtained from DOJ and
OSC with those captured by DOL and, where available, we compared the
information in DOL's USERRA Information Management System to
information from hard copy complaint files for accuracy.\7\ For our
July 2007 report, we assessed the reliability of selected data elements
on Federal employee complaints from DOL's USERRA database by tracing a
statistically random sample of data to case files from February 8,
2005, through July 21, 2006.\8\ We determined that these data were
sufficiently reliable, with the exception of certain data elements from
DOL's USERRA database, which we note in this testimony. With respect to
actions agencies have taken in response to our recommendations, we
discussed the agencies' progress with knowledgeable officials from DOL,
ESGR, and OSC. Our work on the above reports, as well as the work we
conducted for this statement, was performed in accordance with
generally accepted government auditing standards.
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\7\ DOL's USERRA Information Management System is a Web-based case
management and reporting tool implemented by DOL in October 1996 that
allows for automated collection and investigator input of information
regarding USERRA complaints and generation of reports for analysis of
USERRA operations and outcomes. For purposes of this testimony, we
refer to DOL's USERRA Information Management System as DOL's USERRA
database.
\8\ For our July 2007 report, we also assessed the reliability of
selected data elements on Federal employee complaints from OSC's case
tracking system for the same period. The data element that OSC uses to
describe the outcomes of complaints was not sufficiently reliable for
reporting specific outcomes.
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SUMMARY
Mr. Chairman, our main message today is that the four Federal
agencies have taken steps to better support and protect service
members' rights under USERRA in response to problems identified and
recommendations made in our prior reports. However, no single agency is
accountable for maintaining visibility over the entire complaint
resolution process and therefore, it is difficult for the responsible
agencies to effectively carry out their USERRA responsibilities.
Designating one single entity would, in GAO's view, enhance efforts to
improve overall program results.
BACKGROUND
The overall process used to implement USERRA is as follows:
Outreach and resolution of informal complaints. DOD and
DOL share responsibility for outreach--the education of service members
and employers about their respective responsibilities under USERRA.
Much of DOD's outreach is accomplished through ESGR, which performs
most of its work through over 4,000 volunteers. DOL conducts outreach
through its Veterans' Employment and Training Service (VETS)
investigators, who are located nationwide. These investigators conduct
briefings to educate employers and service members about USERRA
requirements and responsibilities and handle service-related employment
and re-employment questions that are directed to their offices.
Service members who have USERRA-related issues with their employers
can file informal complaints with DOD's ESGR. In our February 2007
report, we noted that nearly 10,000 informal complaints had been filed
with ESGR in fiscal years 2004 and 2005. A subgroup of ESGR's specially
trained volunteers serve as impartial ombudsmen who informally mediate
USERRA issues that arise between service members and their employers.
Formal complaints and prosecution. When ESGR ombudsmen
cannot resolve complaints informally, they notify service members about
their options. Service members can file a formal complaint with DOL or
file complaints directly in court (if it involves non-Federal
employers) or the Merit Systems Protection Board (if it involves
Federal executive branch employers). Under a Federal sector
demonstration project established by the Veterans Benefits Improvement
Act of 2004,\9\ DOL investigates complaints against Federal executive
branch agencies for individuals whose social security numbers end in
even numbers, and OSC is authorized to directly receive and investigate
complaints and seek corrective action for individuals whose social
security numbers end in odd numbers.
\9\ The demonstration project began on February 8, 2005 and was
originally scheduled to end on September 30, 2007. Pub. L. No. 108-454,
Sec. 204 (2004), 38 U.S.C. Sec. 4301 note. It was extended through
November 16, 2007. Pub. L. No. 110-92, Sec. 130 (2007).
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When a service member files a formal complaint with DOL, one of
VETS's 115 investigators examines and attempts to resolve it.\10\ If
VETS's investigators are unable to resolve service member complaints,
DOL is to inform service members that they may request to have their
complaints referred to DOJ (for complaints against private sector
employers or State and local governments) or to OSC (for complaints
against Federal executive branch agencies).\11\ Before complaints are
sent to DOJ or OSC, they are reviewed by a VETS regional office for
accuracy and sufficiency and by a DOL regional Office of the Solicitor,
which assesses the legal basis for complaints and makes an independent
recommendation.
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\10\ Another 74 investigators include regional administrators and
management authorized to investigate USERRA complaints but not assigned
to any.
\11\ DOL is also to inform service members that they may file their
complaint directly in court (if it involves non-Federal employers) or
with the Merit Systems Protection Board (if it involves Federal
executive branch employers).
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If DOJ or OSC determines that the complaint has merit, it will
attempt to resolve the complaint without litigation and, if
unsuccessful, represent the complainant in court (for those referred to
DOJ) or before the Merit Systems Protection Board (for those referred
to OSC).
Figure 1 shows service members' options for obtaining Federal
assistance with their USERRA complaints.
Agency databases and reporting requirement. Each of the
four Federal agencies responsible for assisting service members under
USERRA maintains an automated database with complaint information. Both
DOD and DOL have electronic complaint files that are stored in
automated systems with query capabilities.
The Secretary of Labor in consultation with the U.S. Attorney
General and the Special Counsel prepares and transmits a USERRA annual
report to Congress on, among other matters, the number of USERRA claims
reviewed by DOL, and during the current demonstration project by OSC,
along with the number of claims referred to DOJ or OSC. The annual
report is also to address the nature and status of each claim, state
whether there are any apparent patterns of violation of the USERRA
provisions, and include any recommendations for administrative or
legislative action that the Secretary of Labor, the U.S. Attorney
General, or the Special Counsel consider necessary to effectively
implement USERRA.
NO SINGLE AGENCY IS ACCOUNTABLE FOR MAINTAINING VISIBILITY OVER THE
ENTIRE COMPLAINT RESOLUTION PROCESS
Although USERRA defines individual agency roles and
responsibilities, it does not make any single individual or office
accountable for maintaining visibility over the entire complaint
resolution process. In our October 2005 report, we noted that the
ability of Federal agencies to monitor the efficiency and effectiveness
of the complaint process was hampered by a lack of visibility
resulting, in part, from the segmentation of responsibility for
addressing complaints among multiple agencies. Moreover, from the time
informal complaints are filed with DOD's ESGR through final resolution
of formal complaints at DOL, DOJ, or OSC, no one entity has visibility
over the entire process. We found that the agency officials who are
responsible for the complaints at various stages of the process
generally have limited or no visibility over the other parts of the
process. As a result, Federal agencies have developed agency-specific
output rather than cross-cutting goals directed toward resolving
service members' complaints. For example, agency goals address the
complaint processing times of each stage of the process, rather than
the entire time that elapses while service members wait to have their
complaints addressed. Meanwhile, the service member knows how much time
is passing since the initial complaint was filed. In October 2005, we
reported that more than 430 of the 10,061 formal complaints filed with
DOL between October 1, 1996, and June 30, 2005, were closed and
reopened and 52 complaints had been closed and reopened two or more
times. Our analysis of those 52 complaints showed that the processing
times averaged about 3 to 4 months but the total elapsed times that
service members waited to have their complaints fully addressed
averaged about 20 to 21 months from the time they first filed their
initial formal complaints with DOL until the time the complaints were
fully addressed by DOL, DOJ, or OSC.\12\
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\12\ Because dates in DOL's USERRA database did not always match
the dates in the other agencies' systems and of the concerns raised in
our July 2007 report about the investigation closed dates entered for
Federal sector complaints, discussed later in this statement, the
processing and total elapsed times may not be accurate and the figures
presented here are not precise reflections of processing or total
elapsed times. For our 2005 report, we reviewed hard copy complaint
files at the regional offices, tracked cases if they were referred to
DOJ or OSC, and spoke with relevant investigators about these cases. We
determined these data were sufficiently reliable for illustrating the
differences between the agencies' focuses on outputs and the service
members' concern with the results.
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We have previously suggested and continue to believe that Congress
should consider designating a single individual or office to maintain
visibility over the entire complaint resolution process from DOD
through DOL, DOJ, and OSC. We believe this would encourage agencies to
focus on overall results rather than agency-specific outputs and
thereby improve Federal responsiveness to service member complaints
that are referred from one agency to another. In response to this
matter, in our 2005 report, both DOL and OSC were supportive, and both
agencies noted that they had the expertise to oversee the USERRA
complaint resolution process. However, DOL stated that with the
mandated demonstration project ongoing, it would be premature to make
any suggestions or recommendations for congressional or legislative
action until the project has been completed. DOD and DOJ did not
provide comments on this matter.
AGENCIES HAVE TAKEN ACTION TO IMPROVE INFORMATION ON EMPLOYERS AND
ASSISTANCE TO SERVICE MEMBERS UNDER USERRA
DOD, DOL, DOJ, and OSC have generally been responsive to the
recommendations we have made in our prior reports. Following is the
status of some of the improvements made thus far.
Outreach
Integral to getting service members the help they need is educating
them and their employers on their respective responsibilities under
USERRA. Since 2002, we have reported on DOD's need to obtain complete
and accurate information on the civilian employers to better target its
outreach efforts. Accurate, complete, and current civilian employer
information is important to DOD to improve its ability to target
outreach to employers, to make informed decisions concerning which
reservists should be called for active duty to minimize the impact that
mobilizations might have on occupations such as law enforcement, and to
determine how businesses may be affected by reserve activation. As we
recommended in our 2002 report, DOD implemented regulations that
required the reporting and collection of employer information for
Reserve personnel. Additionally, DOD established compliance goals for
these service members. We noted in our February 2007 report that the
percentage of service members reporting employer information to DOD had
increased, but most reserve components had still not reached their
compliance goals. In addition, we found that employment data were not
necessarily current because some reservists were not aware of
requirements to update their employer information and the services had
not established a formal mechanism to remind reservists to update this
personnel information as necessary to reflect changes in their current
employment.
To improve the reporting of National Guard and Reserve employment
information, we recommended that the Secretary of Defense direct the
Office of the Assistant Secretary of Defense for Reserve Affairs to
establish specific timeframes for reservists to report their employment
data, set specific timeframes for reserve components to achieve the
established compliance reporting goals, and direct the service
components to take action to ensure reporting compliance. In response
to this recommendation, DOD indicated at the time of our report that
its current policy on employer reporting established compliance goals.
We noted in our report that DOD needed to establish a new deadline by
which reservists must report their employer information to DOD and set
specific timeframes for reserve components to achieve the established
compliance reporting goal. In addition, to encourage reservists to keep
their employer data current, we recommended that DOD instruct all
military departments to establish a formal review mechanism that would
require all reservists to review and update at least annually their
reported employment-related information. At the time of our February
2007 report, DOD was in the process of revising its policy on civilian
employer reporting to require an annual review of reported employer
information.
DOD provides USERRA outreach and education to service members using
several mechanisms, including a toll-free information line and
individual and group briefings. DOD monitors the extent to which it
reaches this population and the occurrence of USERRA-related problems
by including questions on these areas in its Status of the Forces
survey, which is periodically conducted to identify issues that need to
be addressed or monitored. We noted in our 2005 report that survey
questions offer the potential to provide insight into compliance and
employer support issues. However, questions on the surveys vary from
year to year and have not always included those pertaining to USERRA
compliance and employer support. To gauge the effectiveness of Federal
actions to support USERRA by identifying trends in compliance and
employer support, we recommended that the Secretary of Defense direct
the Under Secretary of Defense for Personnel and Readiness to include
questions in DOD's periodic Status of Forces Surveys to determine:
the extent to which service members experience USERRA-
related problems;
if they experience these problems, from whom they seek
assistance;
if they do not seek assistance, why not; and
the extent to which service members' employers provide
support beyond that required by the law.
In response to this recommendation, DOD incorporated these
additional USERRA-related questions in its June 2006 Status of the
Forces survey.
Data Sharing and Trend Identification
Because the resolution of service member complaints could involve
multiple Federal agencies, it is important that the agencies be able to
effectively share and transfer information to efficiently process
service member complaints. In October 2005, we found that the automated
systems that DOD, DOL, DOJ, and OSC used to capture data about USERRA
complaints were not compatible with each other.\13\ As a result,
information collection efforts were sometimes duplicated, which slowed
complaint processing times. To increase Federal agency responsiveness
to USERRA complaints, we recommended that DOD, DOL, DOJ, and OSC
develop a system to allow the electronic transfer of complaint
information. At the time of our report, DOL and OSC concurred with this
recommendation, DOJ did not provide comments, and DOD deferred to the
other agencies. We noted in our February 2007 report that DOL had
implemented an enhancement to its USERRA database in October 2006 to
enable the four USERRA coordinating agencies to electronically transfer
case information between agencies. The database enhancement allowed
DOD, DOL, DOJ, and OSC to access and update the status of cases using
the Internet and produce a report containing aggregate USERRA complaint
data on the cases over which they have jurisdiction. We further noted
in this report that, despite these enhancements to the USERRA database
to allow the electronic transfer of complaint information between
agencies, DOD only had visibility over those cases that originated with
informal complaints to DOD. Even though DOD shares responsibility with
DOL for USERRA complaints, DOD did not have access to all USERRA
complaint data, and we recommended that DOL provide these data to DOD's
ESGR.\14\ In response to this recommendation, in October 2007, DOL
provided DOD with the ability to view and download aggregate
information on all USERRA cases in its database.
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\13\ GAO-06-60.
\14\ GAO-07-259.
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In addition, in October 2005, we reported that when a complaint is
referred from DOL to OSC or DOJ, the agencies are unable to efficiently
process complaints because they are forced to create, maintain, copy,
and mail paper files to other DOL offices and to OSC and DOJ. To reduce
administrative burden and improve oversight of USERRA complaints
processing, we recommended that DOL develop a plan to reduce reliance
on paper files and fully adopt the agency's automated complaint file
system. DOL concurred with this recommendation and, as a result, is
developing an electronic case record system, scheduled for completion
in October 2008, that will allow all agencies assigned to the case an
opportunity to review documents and add investigative notes or records.
To effectively identify trends in issues facing service members, it
is important in a segmented complaint resolution process that the
complaint data generated by each of the Federal agencies be
sufficiently comparable. In our February 2007 report, we noted that the
complaint categories used by each of the four agencies could not be
uniformly categorized to reveal trends in USERRA complaints. In
particular, we noted that the complaint data collected by DOD and DOL,
the two agencies that see the highest volume of cases, were not
categorized in a way that is conducive to meaningful comparison.
Specifically, we found that the two agencies use different categories
to identify reservists' USERRA complaints for issues such as being
refused job reinstatement, denied an appropriate pay rate, or being
denied vacation time. To allow for the analysis of trends in reporting
USERRA complaints, we recommended that DOD and DOL adopt uniform
complaint categories in the future that would allow aggregate trend
analysis to be performed across the databases. At the time of our
report, both DOD and DOL agreed with this recommendation. Since that
time, DOD and DOL have collaborated to identify common complaint
categories that will allow both agencies to match similar USERRA
complaints. According to officials from both DOD and DOL, these
complaint categories are expected to be pilot tested in fiscal year
2008.
As reservists continue to be exposed to serious injury in
operations in Iraq and Afghanistan, the ability to identify disability
re-employment complaints becomes more critical. However, we noted in
our February 2007 report that the four Federal agencies responsible for
assisting service members with USERRA complaints could not
systematically record and track disability-related complaints.
Additionally, we found that these agencies do not distinguish
disability-related complaints from other types of complaints for
tracking and reporting purposes. For example, the service member must
indicate that the case involves a disability for it to be classified as
such, and these complaints may not be distinguishable from any other
types of complaints because a single USERRA complaint may involve a
number of issues that complicates the classification of the case by the
agency. Further, disability-
related complaints are not identified using consistent and compatible
complaint categories. DOD classifies USERRA disability-related
complaints within three categories including medical benefits, job
placement, and time limits for re-employment, while DOL uses one
category, reasonable accommodation and retraining for disabled, to
classify USERRA disability-related complaints. To provide agencies with
better information about disability-related employment complaints, we
recommended that DOL develop a system for recording and tracking these
complaints and share it with the other agencies that implement USERRA.
DOL concurred with this recommendation at the time of this report.
According to DOL officials, DOL's USERRA database identifies disability
claims, and the agency has recently provided DOD, OSC, and DOJ with
access to this system.
INFORMATION REPORTED TO CONGRESS
As previously mentioned, the Secretary of Labor is required to
provide an annual report to Congress that includes information on the
number of USERRA complaints reviewed by DOL, along with the number of
complaints referred to DOJ or OSC. We noted in our February 2007 report
that DOL's report to Congress does not include information on informal
complaints filed with ESGR. Therefore the complaint data that DOL
reported to Congress for fiscal years 2004 and 2005 did not include 80
percent, or 9,975 of the 12,421 total informal and formal USERRA
complaints filed by reservists during that period. Without data from
ESGR, Congress has limited visibility over the full range of USERRA
issues that reservists face following deployment. Further, without
these data, Congress may lack the information for its oversight of
reserve employment matters. To gain a full perspective of the number
and nature of USERRA complaints filed by reservists in gaining re-
employment upon returning from active duty, we suggested that Congress
consider amending the reporting requirement \15\ to require DOL to
include data from DOD's ESGR in its annual report to Congress. In
response to this matter for congressional consideration, Members of
Congress are considering changes to the legislation.\16\
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\15\ 38 U.S.C. Sec. 4332.
\16\ H.R. 1632 was proposed on March 21, 2007, and was referred to
the Committee on Veterans' Affairs.
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In addition to DOL's report to Congress not reflecting informal
USERRA complaints, we identified data limitations in our July 2007
report that affected the quality of information reported to Congress
that could adversely affect Congress's ability to assess how well
Federal sector USERRA complaints are processed and whether changes are
needed.\17\ DOL provides information in its annual report to Congress
on the number and percentage of complaints opened by type of employer,
issues raised--such as discrimination or refusal to reinstate--outcome,
and total time to resolve. We found that the number of Federal sector
complaints shown in DOL's USERRA database from February 8, 2005,
through September 30, 2006, exceeded the number of unique claims it
processed during the period of our review. Duplicate, reopened, and
transferred complaints accounted for most of this difference. Also, in
our review of a random sample of case files, we found:
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\17\ GAO-07-907.
the dates recorded for case closure in DOL's USERRA
database did not reflect the dates on the closure letters in 22 of 52
sampled complaints and
the closed code, which DOL uses to describe the outcomes
of USERRA complaints (e.g., granted, settled, no merit, or withdrawn),
was not sufficiently reliable for reporting specific outcomes of
complaints.
To ensure that accurate information on USERRA complaints'
processing is available to DOL and to Congress, we recommended in our
July 2007 report that the Secretary of Labor direct the Assistant
Secretary of Veterans' Employment and Training to establish a plan of
intended actions with target dates for implementing internal controls
to ensure that DOL's USERRA database accurately reflects the number of
unique USERRA complaints filed annually against Federal executive
branch agencies, the dates those complaints were closed, and the
outcomes of those complaints. In response to our recommendation, DOL
issued a memo from the Assistant Secretary of Veterans' Employment and
Training in July 2007 instructing investigators to ensure that the
closed date entered into DOL's USERRA database match the date on the
closure letter to the service member, and DOL conducted mandatory
training on this memo beginning in August 2007. Further, DOL officials
told us that DOL's fiscal year 2007 annual report will count reopened
complaints as a single complaint if brought by the same individual,
against the same employer, and on the same issue.
NOTIFICATION OF RIGHTS TO REFERRAL AND INTERNAL REVIEWS
We reported in July 2007 that in cases where service members sought
assistance from DOL and the agency could not resolve the complaints,
DOL did not consistently notify service members in writing of their
right to have their unresolved complaints against Federal executive
branch agencies referred to OSC or to bring their claims directly to
the Merit Systems Protection Board.\18\ Specifically, our review of a
random sample of complaint files showed that DOL failed to notify
service members in writing in half of the unresolved complaints and
notified others of only some of their options. In addition, we found
that DOL's USERRA Operations Manual failed to provide clear guidance to
its investigators on when to notify service members of their rights and
the content of the notifications. In July 2007, we also reported that
DOL has no internal process to routinely review investigators'
determinations before claimants are notified of them and noted that
this lack of review could have caused DOL's inconsistent practice of
notifying service members for their rights to referral. We recommended
that the Secretary of Labor direct the Assistant Secretary for
Veterans' Employment and Training to: (1) require VETS's investigators
to undergo mandatory training on the procedures to be followed
concerning notification rights to referral, (2) incorporate into the
formal update to DOL's USERRA Operations Manual guidance concerning the
notification rights to referral, and (3) develop and implement an
internal review mechanism for all unresolved complaints before service
members are notified of determinations and complaints are closed.
---------------------------------------------------------------------------
\18\ GAO-07-907.
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Since that time, DOL has taken the following actions:
issued a memo in July 2007 from the Assistant Secretary
for Veterans' Employment and Training to regional administrators,
senior investigators, and directors concerning case closing procedure
changes, including standard language to use to ensure that service
members (Federal and non-Federal) are apprised of their rights;
began conducting mandatory training on the memo in August
2007;
incorporated the policy changes into the revised Manual,
which according to DOL officials is expected to be released in January
2008; and
according to DOL officials, beginning in January 2008, all
claims are to be reviewed before the closure letter is sent to the
claimant.
These are positive steps. It is important for DOL to follow through
with its plans to ensure that clear and uniform guidance is available
to all involved in processing USERRA complaints.
Mr. Chairman, Senator Enzi, and members of the committee, this
concludes our remarks. We will be pleased to take questions at this
time.
The Chairman. Thank you, thank you very much.
Let me just cover this quickly, because we want to keep
moving along. I thank Senator Murkowski for joining with us
here this morning, as well.
Ms. Farrell, you pointed out the administrative
complexity--I don't want to spend a great deal of time on this,
as a matter of fact I'll spend very little time, maybe we'll
come back for questions, but this is a chart that gives the
summary of the points that you make about the bureaucratic
duplicity that exists, and confusion in this. And even with
this we have a requirement, that the Department of Labor is
supposed to file a statutory report in February about the
progress that they're making, and we still haven't even
received that.
But this is the rough conceptual reality of how this breaks
out. But, I want to move beyond this. What I want to do is
address the veterans, the half of the reservists, and the
National Guard that have expressed dissatisfaction with the
DOL.
Now, what are the issues that they have expressed some
dissatisfaction with the DOL? In this chart here, these are the
lists of the areas where they've expressed some
dissatisfaction: loss of seniority, loss of pensions, the loss
of the upgrade in their skills, failure to reinstate health
insurance, failure to get prompt reemployment. This is a list
of the types of dissatisfactions.
OK, so these are the numbers, and the types of
dissatisfactions. Now, what do these service men and women do?
They go to the Department of Labor, and this chart here will
show you when they go to the Department of Labor, what is their
degree of satisfaction.
In 2004, we found there were 27 percent who were
dissatisfied, now in 2006, it's up to 44 percent. These are the
Department of Defense figures, as of October 17. So, the
dissatisfaction is not going down, the number of complaints has
stabilized, gone up somewhat. And that is something.
Now, let's take the total number of service members that go
to the Department of Labor, now, almost half of them are
dissatisfied. So we ask ourselves, how many did not go there?
And we find out that 77 percent did not seek assistance. These,
again, are Department of Defense figures from the Status of
Focus Survey. So, only about 23 percent actually sought
assistance, of the ones that sought the assistance, almost 50
percent of those are dissatisfied.
Now, these are Department of Defense figures. And this is
not a record that we should be very satisfied with. And we have
to try and get it straight. Now, there's bureaucratic aspects
of it that have been pointed out, there are other aspects,
there's some very important progress that Mr. Bloch mentioned,
particularly cases that they've done, there has been some noble
help and assistance.
But with this degree of dissatisfaction, the fact is that
service men and women are not using the system, and they've got
problems, and the ones that do use the system have the problem
with the system. What in the world are we going to try to do
about that?
Mr. Ciccolella.
Mr. Ciccolella. Thank you, Senator.
What we're trying to do, is to brief every service member
before they go on their deployments, and we brief them at
demobilization. We do that with the Defense Department----
The Chairman. I'm going to ask you, just very quickly,
because my time's going to be up, I'm going to ask each one of
you to give about a 1-minute reaction to this, so you can be
thinking about it. We're voting at 11:30 and we're going to
want to move on to the next panel.
Mr. Ciccolella. The most important thing about this law--
this is a complicated law--the most important thing about the
law is to explain to service members where they can go to get
assistance, and that's what we try to do. We've made the law
much easier to understand with our regulations, heretofore,
there were no regulations on this law. It's not an easy law to
understand, and where there are problems with USERRA, it is
generally because the law is not understood.
And we brought up the issue of deployments, the deployments
are much longer, it's not like it was in 1994 when the law came
out, where service members were off for their weekend duty.
These lengthy deployments create situations that are much more
complex.
You noted on your list of their complaints, the types of
complaints that you're getting--and you can see the
complexity--and Senator, it's not only the complexity. But it's
the multitude of issues. You don't have USERRA cases now with
just one issue.
So, in many cases, it is that the employer does not
understand the law, it's not the egregious, ``We're not going
to hire you,'' or ``You're fired.'' And, it does take time to
work through those issues, especially health care restoration,
pension restoration, and a lot of times it's status, you know,
an individual leaves, comes back, leaves again, and then when
they come back, they're not immediately put back in the exact
same position or, as the law says, it's got an escalator
principle that underlies it, they're supposed to be put in the
position they would have had, but for the military experience,
or service. Which puts the employer in a situation where they
need to bring that individual up to speed. The intent of
Congress was that service members should not be penalized for
their military service.
The Chairman. Please, Dr. Sumner.
Mr. Sumner. Sir, from our viewpoint on the ESGR side, we're
the ones who try to provide that informal mediation process to
those Guard and Reserve members, before it ever gets to this
level.
The Chairman. Sure.
Mr. Sumner. And right now, over the last couple of years,
we have had--just for information only--over 15,000 cases that
have come to our office, either by telephone, through our e-
mail or through our 1-800 call center support. And just from
that alone, we've been working those cases, as of last year and
the 2006 issue, for example, of all the cases which numbered
into 10,000-plus cases, only 1 percent were those we could not
resolve at the community level between our volunteers, our paid
staff--who are located at every State and territory--working
with those Guard or Reserve units that are located with them,
as well as the businesses that are with them, and that 1
percent is what we ended up having to follow-on to the
Department of Labor. But our effort, again, is focused solely
on being the ones that can fix their problems immediately, to
the satisfaction of both parties, as we provide that informal
mediation process.
The Chairman. Put up the organizational chart. As I
understand it, your agency does about 80 percent of the USERRA
cases?
Mr. Sumner. Yes, sir.
The Chairman. And the Department of Labor is 20 percent,
you do the ones with volunteers, and do it effectively.
Mr. Sumner. Yes, sir.
The Chairman. But it's the other part, the 20 percent that
have caused a lot of problems, where there were a lot of
abuses, which is where the problem is.
Senator Isakson.
Oh, excuse me, quickly, Mr. Bloch and Ms. Farrell, if you'd
just comment quickly.
Mr. Bloch. Thank you, Senator. Well, I would respond by
quoting another famous Teddy, Teddy Roosevelt, who said,
``Speak softly, but carry a big stick.'' We do. We speak a lot
to employers in the Federal Government, but when they don't
cooperate, we have the big stick of prosecution and we use it
to good effect. But, we also have the stick of public comment.
We do press releases, we frequently interact with the media on
these issues to bring awareness to these service members and
Senator, I think it is a travesty that people feel deterred
from going to seek relief. That is a terrible thing, we need to
send a better message, we're trying to do that through
prosecution, education and outreach, and media.
The Chairman. Thank you.
Ms. Farrell.
Ms. Farrell. Senator, it was in 2005 that GAO reported
that--about 72 percent of the Reservists that DOD had surveyed
in their ``Status of Forces'' survey said that they had not
sought assistance for these problems, and it was in response to
our recommendation that you need to understand why. And, DOD
did take action to include similar questions in its 2006
survey. But, it's not just collecting the information, but it's
analyzing it and determining why they didn't seek the problems,
in order to develop some type of action plan to move forward.
The Chairman. Good.
Senator Isakson.
Senator Isakson. First of all, Mr. Ciccolella, I understand
from a little research that you received both the Bronze Star
and the Silver Star--the Bronze Star for valor in Vietnam, I
wanted to make sure everybody knew that, and thank you for your
service.
Mr. Ciccolella. Thank you, sir.
Senator Isakson. And having somebody like you with that
experience in this job means a lot to me. I'm just wondering,
in your Department, how many of your fellow workers are
veterans?
Mr. Ciccolella. We have about 240 individuals in the
Veterans Employment Training Service. About 95 percent are
veterans.
Senator Isakson. That's terrific.
Second, and I may be wrong on this, but perspective-wise--
of the 77 percent that didn't file an action, I would assume a
fair number of those didn't file, because whatever their
initial inquiry was, was dealt with. Is that correct, or
incorrect?
Mr. Ciccolella. Most USERRA cases, Senator, are resolved
very quickly, they're resolved on the phone. Even those that
are referred to us by ESGR, we can usually resolve them very
quickly. Most of them are a result of an employer not
understanding the law.
For those that are not resolved, we think we're doing much
better in terms of the rate, the complaint rate. For example,
in the first Gulf War, 265,000 service members were activated,
Reserve and Guardsman, and they were activated for shorter
periods of time than these service members, because now the
tours are a year long.
Now, we've activated over 600,000, those were Guard and
Reservist. In the first Gulf War, for every returning
reservist, for every 54 returning reservists, we were doing an
investigation, a Federal investigation. Now that's 1 out of
about every 80. Now, that's better, but it's not good enough.
Any time that a service member comes back, they don't get their
job back, or they're not properly restored to their position,
and that's usually what happens, it's not the egregious sort of
thing--that's of concern to us.
We're veterans, out in the field. These veterans are 4
year, 10 year, 20 year veterans of the service. They deal with
these issues every single day. They not only deal with USERRA,
but they also work with the workforce system, and they work
with the military on a day-to-day basis, to make sure that
service members in the real terms, put these individuals
through transition assistance programs. They also do
mobilization and demobilization briefings, so they're
imminently well-qualified to deal with the service member and
find out what the complaint is, and also deal with the
employers.
In cases where service members don't pursue a case,
sometimes they don't want to pursue a case, a lot of times they
want to change jobs. When a Guardsman or a Reservist goes over
to Iraq or Afghanistan, and they're a squad leader over there,
and they have been working at the Garden Center at K-Mart, and
they come back, they've got skills that vastly overwhelm the
job that they had. So, they may want to change jobs.
That's another reason why we're very well-suited, because
we can deal with that issue, and also help the service member
get a job, and that's what happens in a lot of cases.
Senator Isakson. Well, that being the case, then, I think
the representation of 77 percent and then 46 percent, really
the 23 percent that file the cases, 46 percent of them are
dissatisfied, which is 1 out of 10, rather than 46 percent of
all USERRA cases, is that--that's the way it would look to me,
from that standpoint.
Mr. Ciccolella. Yes, sir, and the other thing is that these
surveys are very, very important. And, as Brenda has talked
about, you really need to do some research on the surveys, and
look at, how many people responded on the survey, what was the
response rate? And also, do the detailed research to find out
why they didn't pursue the cases, but you're absolutely
correct, sir.
Senator Isakson. And on that line, one quick question for
Dr. Sumner and then I'll move on, I know we're in a hurry--you
all mediate a fair number of these, is that correct?
Mr. Sumner. That's correct, sir.
Senator Isakson. Of the ones that you are unsuccessful at
mediating, is there a more common reason, is there something
out there that you find in these mediations where we do have a
problem that recurs that's hard to mediate?
Mr. Sumner. It's primarily, the No. 1 issue of the codes
that we receive, primarily just involve around the pay and the
position that these individuals come back to. So, that's----
Senator Isakson. Something less than what they left with,
is that----
Mr. Sumner. Less, some other position, the seniority, one
of those that you see on the chart that the Senator showed
earlier, Mr. Chairman there.
Senator Isakson. That's helpful, thank you.
Thank you, Mr. Chairman.
The Chairman. Senator Reed.
Statement of Senator Reed
Senator Reed. Well, thank you, Mr. Chairman.
And thank you, gentlemen for your testimony, and Ms.
Farrell.
This is a very important hearing today for many reasons.
But one reason is, just this morning there was a report
released indicating that one out of four homeless Americans are
veterans, which is a shocking statistic, and one that we should
really be troubled by. And, frankly, if you can't get a job,
there's a pretty good chance you'll be homeless, so this is all
connected. And, I think what you're doing to try to inform
veterans and protect veterans in the workplace is critical.
And Doctor, I have just one question because time is moving
forward--there's great effort to inform the veterans of their
rights, responsibilities under the law--is there a similar, in
your view, effort with employers, that they are notified
officially and directly that they have the obligation.
Mr. Sumner. Oh, absolutely, Senator, that's one of our key
mission statements, if you will, is the fact that the employer
support of Guard and Reserves main focus is to educate and to
inform and to sustain that knowledge of the USERRA, with the
employers that are out there. And that is really one of the key
support efforts of our over 4,500 volunteers that are located
in every State and territory.
Senator Reed. Well, you have a wonderful organization
around, Ernie Almonte, you probably know is----
Mr. Sumner. Yes, in fact, I just spoke to him yesterday.
Senator Reed. He's tremendously talented, he's our general
auditor, also--but, you know, as we personally brief a National
Guardsman or Reservist who is leaving active duty, do we
directly and personally communicate with their employer,
saying, ``So-and-so is coming back, and these are your rights
and responsibilities,'' or is it, as I think, a volunteer
effort where you're there too, as a resource for the employers
in the State--if there's a problem--do we have a systematic
way, where we send a note?
Mr. Sumner. We do not do the notification, either pre-
deployment or postdeployment with those units, and the
employers of those Guard and Reservists. What we do is, through
our informal process of discussions, our ability to speak with
the various employers through the organizational activities
that we have--if we know of a unit that is scheduled to come
back, we will share that information, but it's not in our
charter to be the ones that do any kind of official
notification that that individual is coming back.
Senator Reed. Is it anyone's charter to do that? The
Colonel?
Mr. Ciccolella. Sir, we reach out to employers on a day-to-
day basis in an ad hoc sort of way. I think your question was
for the--that returning Reservist or Guardsman, so we talk to
his or her employer? No, sir. It would be very difficult to do
that.
Senator Reed. It may be. But, it just strikes me as that
you've got an employer that has a vague understanding that he
has some obligation under the law.
Mr. Ciccolella. Yes.
Senator Reed. And I don't think, they're trying to be--in
most cases--defiant of the law, they want to cooperate. And
then you have a soldier coming back who's trying to explain to
the employer what the law--what he thinks the law is. And you
get into this kind of unsatisfied debate back and forth,
technically, probably above everybody's--it would be above
mine, frankly--and then you get into this situation of, well,
they go, they--sometimes they'll call your office, sometimes
they won't call, they'll just be frustrated, ESGR sort of steps
in. I'm just wondering, if it might be useful to--since we've
got a lot of information these days--if we do, in fact,
formally notify employers.
Mr. Ciccolella. Well, it would be very useful. The most
important thing with USERRA issues, is that there's
communication between the employee and the employer, because
that's the relationship that is at stake. It's so important
that when we go in and investigate a situation, we maintain
that relationship, between the employee and the employer.
Most employers understand the law. They may not understand
all of the technical aspects--how to exactly restore the
pension or entitlement or health coverage benefit--and most
issues are because of misunderstandings, so we ought to take a
look at what you just said.
Senator Reed. Thank you very much.
Thank you, Ms. Farrell, thank you, Mr. Bloch. Thank you.
The Chairman. Senator Murkowski.
Statement of Senator Murkowski
Senator Murkowski. Thank you, Mr. Chairman. I really
appreciate the hearing this morning, the testimony from the
distinguished panel. I was up in Alaska earlier in the year,
meeting with veterans from around the State and had a very,
very interesting discussion with some vets at a vet center.
Primarily, they had come back from Iraq. I had a conversation
with a young man, probably early twenties, who had been a
mechanic over there, very skilled in his area. He came back and
was looking for a job. He ultimately ended up with a position
as a night stocker at one of the Big Box stores. The things
that he said were very troubling. They were all the more
troubling because other young men who were there said the same
thing.
One of them told his employer he had just come back from
Iraq. His employer made some comment to the effect of, he
thinks that everybody who's coming back is suffering from PTSD.
In the words of another young man, ``They think that we're all
ballistic, and when are we going to go off.'' The vets I met
were all concerned about discrimination against our returning
veterans when they come back. We know that USERRA prohibits
discrimination in employment on the grounds of military
service, but I listen to those stories, and am greatly, greatly
concerned. And I know that it makes the job of each and every
one of you just that much more difficult. But, I do believe
that we are dealing with a level of discrimination out there by
employers, and how we address that is going to be very, very
key to demonstrating our support for those who have been
serving us.
I want to ask about a specific case in Alaska, in which my
constituent has been waiting for 7 years to have his USERRA
matter resolved.
This is an individual who had a position with Indian Health
Service. He left it in 1995 to go on active duty with the
Alaska National Guard. In 2000 he leaves active duty, seeks
reinstatement to his position, but the position no longer
exists, because the facility where he was working, at Indian
Health Service, has transferred this to tribal control, under
the Indian Self-Determination Act.
First, the constituent is told he doesn't have rights under
USERRA, then he appeals, years go by, and nothing is happening.
When I came to the Senate, we intervened, picked this up,
and persuaded the Labor Department to reopen the case. Long and
short of the story is this gentleman now has a job. But, he has
a job in the community of Kodiak. Which is--if you're not
familiar with Alaska--it's an island, a large island in the
Gulf of Alaska. His family lives in Palmer, which is an hour
north of Anchorage. In order for him to see his family, he
flies an hour and a half on a commercial jet to get there. This
is the solution to his USERRA complaint.
This case is still open. The complaint has not yet been
fully resolved, and we're 7 years down the road. This is not a
service, this is a process that isn't working.
So, I would like to ask, on the record here, Mr.
Ciccolella. I do understand that you are familiar with the
case. I'd like to know how we can--how we can allow for a
system to let an individual, kind of, fall through the cracks
like this?
I'd also like to ask you, Mr. Bloch, if you were familiar
with it, if the case has been referred from the Department of
Labor to you, yet, and whether or not you've got jurisdiction
over this to do anything. I want to be able to tell my
constituent that, ``Yeah, the process works. You've been
hanging for 7 years, but we can find some resolve to this.''
So, first Mr. Ciccolella, and then Mr. Bloch.
Mr. Ciccolella. Yes, ma'am.
This was a case that is very unfortunate. The individual
came to the Department of Labor and put their complaint in. The
Department of Labor employee who processed the case had
indicated that the case was referred to the Office of Special
Counsel, and that was not the case. That employee has since
departed the Department of Labor.
The case, as far as I know, lay dormant for several years.
In 2005, we picked the case back up, recognizing the errors
that had been made. We have worked to--with the Federal
agency--to assist in getting the position back. As you've said,
that's still not satisfactory with the individual. There are
other aspects of this case, Senator, that involve the financial
settlement. The case is very, very likely to be referred to the
Office of Special Counsel, that is being prepared, right now,
as we speak----
Senator Murkowski. Can I interrupt?
Mr. Ciccolella. Yes, please.
Senator Murkowski. To ask a question on that----
Mr. Ciccolella. Yes.
Senator Murkowski. If, in fact, it had been indicated some
years ago that it was being referred to the Office of Special
Counsel, why has it taken a period of years, then, to actually
make that referral?
Mr. Ciccolella. The information that has come to me is that
we were asked to work the case by the individual, and we have
done so. We are now in the process of referring the case, it
will be referred to the Office of Special Counsel very, very
shortly.
It is an open case, it may involve the Special Counsel
litigating that case with the Merit Systems Protection Board.
Going beyond that information, would probably be inappropriate,
because it could prejudice the outcome of the case. On the
other hand, we'd be happy to sit down with you or your staff in
a closed session and go over all of the details in the case.
Senator Murkowski. I would appreciate that, but more
importantly, I think my constituent wants a resolve to this,
and I would like to think that we would all think that that is
in the best interest.
It concerns me that when you have a situation, one
unfortunate situation--as you refer to it--the word gets out.
Don't bother going, because they're not going to be able to do
anything. There's a process there that isn't working if we're
not getting the results, and I think that that's what this case
demonstrates. I hope that this is very, very quickly going to
get to the Office of Special Counsel and we're going to see a
very immediate resolve to it.
Mr. Ciccolella. I can assure you that it's going to be
expedited, too, it's already in-process and going to the
Special Counsel.
And I understand your concerns, Senator. Most USERRA cases
don't follow this path.
Senator Murkowski. Mr. Bloch, did you want to add anything?
Mr. Bloch. Well, thank you, Senator. I can't say anything
regarding what Mr. Ciccolella has said, he knows more about the
case than I do, we've never actually had any jurisdiction over
it.
However, about 6 months to a year ago--I can't remember the
exact timeframe--I began getting e-mails from this individual,
crying for help. And so I went to my Deputy and the head of the
USERRA unit, and I said, ``What can we do? This sounds drastic,
a terrible situation.'' And so, we began to talk with Labor,
and interact with them and, to see if we could get the case,
and we were willing to take it, whatever timeframe it may have
been--6 months ago, a year ago, I can't remember.
Since that time, we've heard a fair amount from the
complainant about the situation. I read these e-mails, very
concerned, and so we were told--I should put it this way: My
understanding is that our office, in communicating with Labor
and Vets office, was told in August we would be getting the
case in a week, but we've never received it.
It is my understanding that there was some discussion
between Vets investigator and the complainant for about a year,
implying that the individual had received a monetary
settlement, and it was very large, and it would be forthcoming
and it just never was.
And then, more recently was told a slightly lesser figure,
although still a fairly large amount. Again, nothing happened.
The concern is that there's never an end to the process. What
we try to do is bring things to a head quickly for the service
member, we tell the employer, ``Here's your obligations, here's
how we view this case, what are you going to do now?'' And if
we say, ``Well, we'll get back to you,'' we just go ahead and
file. And then that gets their attention. And that's how we do
things.
Senator Murkowski. Well, Mr. Chairman, whether it is one
individual, or whether it's the 25, 23 percent--it's too many.
The Chairman. Well, we thank you, our committee will work
with you and the reasons you've outlined, and we appreciate
your responses, and we'll probably have some follow up
questions if the Senators want to do that, we'll be glad to
join with them.
I want to thank our panel, very much. We might give some
other additional kinds of questions, but we thank all of you
very much for being here.
And we'll move to our next panel, if we could, please.
Lieutenant General Dennis McCarthy. Dennis McCarthy is the
National Executive Director of the Reserve Officers
Association. He is currently the Commander of Marine Forces
North, and previously served as Lieutenant General for the
Reserve Affairs Division Headquarters U.S. Marine Corps.
Lieutenant General McCarthy served in Vietnam, and is a
graduate of the University of Dayton.
Next, Lieutenant Colonel Steve Duarte. Steve Duarte is a
retired Marine Reservist. Lieutenant Colonel Duarte was laid
off by his employer, Agilent Technology, shortly after
returning from his tour in Kuwait and Iraq. Although he filed
complaints, the Departments of Defense and Labor told him that
his case lacked merit. Undeterred, Lieutenant Colonel Duarte
hired his own commanding officer to represent him and
ultimately won his case in court.
Major Tammy Duckworth is a National Guard Major. Since
2006, she has served as the Director of Illinois Department of
Veterans' Affairs. Major Duckworth is a veteran of the Iraq
War, where she was a helicopter pilot. In 2004, Major
Duckworth's helicopter was struck by a rocket-propelled
grenade. She's received the Purple Heart, and she also received
the Air Medal, and Army Commendation Medal. Director Duckworth
has a B.A. in Political Science from the University of Hawaii,
a Master's from George Washington University's Elliot School of
International Affairs, and she is currently working on a Ph.D.
in political science at Northern Illinois University.
Finally, Richard Halbrook, Executive Vice President of
Administration and Human Resources for Dollar Thrift Automotive
Group. Dollar Thrift was one of 15 employers honored with the
2007 Secretary of Defense Employer Support Freedom Award for
support of National Guard and Reserve employees. With over 25
years of experience in human resources, Mr. Halbrook currently
directs the Human Resources, Communications, and Business
Strategy function at DTG.
We'll hear from Major Duckworth, please. Thank you very
much.
STATEMENT OF MAJOR LADDA TAMMY DUCKWORTH, DIRECTOR, ILLINOIS
DEPARTMENT OF VERTERANS' AFFAIRS, SPRINGFIELD, IL
Major Duckworth. Thank you, Senator, members of the
committee. I don't know if you remember, but you did visit me
at Walter Reed, I still proudly display my Sox hat you gave
me--it does raise eyebrows in Cubs territory, but it's still
proudly displayed. You gave that to me late one night on one of
your trips to Walter Reed.
It's such a pleasure to be here. I'd like to have my spoken
comments added to the record, because I think I'd like to focus
more on what we're doing in the State of Illinois, and less on
the punitive measures as the previous panel spoke about.
First and foremost, we need to talk about the quality of
the men and women who have served in uniform. These are people
who are the best employees any employer could ever hope to
have. They are people who have guaranteed the quality of their
work with their lives. And with the exception of our brothers
and sisters in the police and fire fighting forces, I doubt
that any other employee can write that on their resume.
Let me give you an example. My crew chief, my mechanic,
when he fixed my helicopter, and handed me the key and said,
``Here, go fly your mission with this,'' he guaranteed to me
that he checked every oil level, he twisted every nut, he
checked every safety wire, with his life because he climbed
into the back of that helicopter, and went out on those combat
missions with me. I doubt that there's many jobs out there that
you can write in your classified ad, ``Must be willing to
guarantee quality of work with life.'' And that's what all
service members do every single day.
With that in mind, the State of Illinois has recognized
that many of our returning service members teeter, teeter on
the edge of financial disaster, of homelessness, of divorce,
based on how quickly they can gain stable, steady employment.
So, what we've done is addressed the central question and I
believe this is the same question the committee is facing,
which is how do we help our warriors make the transition to
employment and the pursuit of the American dream, after they
have defended our freedoms?
This must be a combination of State and Federal efforts.
One of the things that the panel previous to mine has not
addressed are those State efforts. In Illinois, we have come up
with several incentives for employers. We are the first State
in the Nation to provide a tax incentive. We give each employer
$600 per veteran that they hire who is a veteran of Iraqi
Freedom, Enduring Freedom and Desert Storm. So, multiply that
by the number of employees that you hire, we give them $600 per
employee. And we hope that that will at least offset the cost
of health insurance, or at least get employers, especially in
small and mid-sized companies, and rural communities, to take a
second look at these employees.
We also provide the Illinois veterans grant. This is an
educational program that provides 128 credit hours at any State
institution of higher learning, whether it is a technical
school where they want to get a truck driver license, a
commercial truck driver license, or a Ph.D. And when used in
conjunction with the Federal G.I. bill, this allows an employee
to, perhaps, take an apprenticeship position with an employer,
or for a potential employer to look and say, ``OK, we can bring
this person on board, the State will pay for his continuing
education for him to gain new skills toward his employment, and
the G.I. bill will supplement his living expenses.'' And that
allows these great men and women to develop additional skills
that will help them move up in their career fields and perhaps
get slightly better employment than working as a night stocker
at a Big Box department store.
The other thing that we do is also recognize in the State
that outreach is a major issue. So, in Illinois, Governor
Blagojevich has now increased a number of our Veterans' Service
Offices, we have 73 of them in 51 field offices, so our
Veterans' Service Offices will actually go to a veteran's home
and sit at his kitchen table and talk to him about his USERRA
rights, talk to him about his Federal rights, and also all of
the State benefits. Unfortunately, one of the downfalls that we
have, is that there's no communication between the Federal and
the State. DOD and USVA will not tell me when someone is coming
home, so that I can send a service officer to help him.
Oftentimes, the first time I hear about a veteran who's
come home to the State of Illinois is when he gets in trouble.
He's homeless, and the homeless shelter calls us, or he has
been self-medicating, he gets a DUI, and now he's in trouble
with the law, and the local State troopers give us a call,
``Hey, we have another one of yours, come help him.'' We'd like
to intervene before he gets into trouble, but there is no
agreement, in fact, DOD and USVA have been negotiating an
information-sharing agreement for the past 3 years, and they
can't come to an agreement between two Federal agencies, let
alone, use us.
I have a budget of $105 million, I have more than 1,000
employees. I am here to help. I ask you to consider urging the
Federal Government, USERRA, all of these organizations to look
to the States and put us to work to help us reach our veterans.
Thank you, sir, and I'm open to your questions.
[The prepared statement of Major Duckworth follows:]
Prepared Statement of Major Ladda Tammy Duckworth
Mr. Chairman, members of the committee, it is a pleasure to testify
before you today on behalf of Illinois Governor Rod Blagojevich and the
Illinois Department of Veterans Affairs (IDVA). This committee is to be
commended for drawing attention to the issues and challenges that our
veterans face when returning to the civilian workforce.
In Illinois, as in many parts of the Nation, we have found that
employment, healthcare and housing are the top concerns facing our
Veterans today. This is especially true of our younger Veterans
returning home from service in Iraq and Afghanistan. These young
Veterans often come home after a tour on active duty military service
or as a deployed national Guardsman or Reservist and find themselves
unable to re-integrate into society because of a lack of jobs or
affordable housing. In 2007 alone, the State of Illinois has launched
nearly $50 million in Sate programs to help our Veterans find
employment, obtain mortgages and access state-provided healthcare.
Unfortunately, due to an unwillingness of the Federal VA and DOD to
share information with individual States, many of our returning
Veterans never find out about our State programs until they are in
trouble. Often, and tragically, the first time my agency finds out
about a returning service member is when we get a call from a homeless
shelter or the local jail. We would like to reach them before they
start self-medicating for Post Traumatic Stress Disorder (PTSD) with
alcohol, or before they lose their homes. However, without help from
the Federal USDVA or DOD, this is a major challenge for States to
overcome.
In Illinois, we are committed to providing our veterans with the
best possible services and resources available to make a smooth
transition into employment. For instance, the Illinois Department of
Employment Security launched six Veterans Job fairs last year to
connect employers with veterans throughout the State. Participating
organizations included the American Legion and AMVETS. We have also
designated November 2007 as ``Hire a Vet Month,'' and are currently
conducting statewide Veterans job fairs throughout the State. Finally,
Illinois is also the only State in the Nation to offer a $600 per
employee State income tax credit to employers in exchange for hiring
Veterans of Desert Storm, Operation Iraqi Freedom and Operation
Enduring Freedom.
To help Veterans prepare and develop new job skills, Illinois has
the Illinois Veterans grant, which grants each qualifying Veteran 128
credit hours (tuition and fees) at any State of Illinois institution of
higher education. Veterans can use this in conjunction with the Federal
GI Bill, allowing them to attend school for degrees ranging from
technical training programs like Commercial Truck Driver to Ph.D.
studies. Unlike the GI Bill, the Illinois Veterans Grant does not
expire and can be used for additional programs throughout the Veteran's
lifetime. This combination makes for an attractive package for future
employers who know that the Veteran employee will be able to take a
lower-paying training position while having his retraining paid for by
the State and his living expenses supplemented by the GI Bill.
The U.S. Department of Labor, through Assistant Secretary for
Veterans Employment & Training Ciccolella, implemented the ``2007
National Hire VetsFirst Job Fairs,'' requesting that each State conduct
a Statewide Veterans Job Fair during the month of November. This year,
Illinois has expanded its job fair to 10 sites throughout the State
with 345 employers currently registered to participate. The job fair
will also include the ``First in the Nation'' Virtual Job Fair in
partnership with Illinois Department of Employment Security (IES), the
Illinois Department of Commerce and Economic Opportunity (DCEO), and
Illinois workNet, an online employment tool for veterans. I am pleased
to report that at the national level, our report to the USDOL-VETS was
well received.
In addition, our Illinois Department of Commerce and Economic
Opportunity strongly supports the Jobs for Veterans Act and encourages
eligible veterans to participate in all appropriate training and
assistance programs managed by the department's Bureau of Workforce
Development. Illinois is divided into 26 Local Workforce Investment
Areas (LWIA). Services are provided through what are currently referred
to as One-Stop Centers and their affiliate sites in each of these
LWIAs. Our Bureau of Workforce Development works closely with our
Department of Employment Security, a WIA program partner, and their
Veterans' Employment and Training Staff (VETS) at the local One-Stop
Centers to provide comprehensive services to veterans seeking
employment.
According to the 2006 annual Current Population Survey (CPS)
special report on Veterans' labor force status, 804,000 people aged 20
and over in Illinois were civilian veterans, or 9 percent of the
State's civilian population. Of these civilian veterans, 431,000 were
in the labor force (7 percent of the total labor force) and 410,000
were employed. Thus, it was estimated that 21,000 were unemployed for a
rate of 4.9 percent. The Illinois unemployment rate for veterans (4.9
percent) was higher than that for nonveterans (4.1 percent).*
---------------------------------------------------------------------------
* The national unemployment rate for veterans (3.8 percent) was
lower than the unemployment rate for nonveterans (4.1 percent).
---------------------------------------------------------------------------
To determine why veterans in the 20-24 age range have a higher
unemployment rate than non-veterans in the same age group, our IDES
undertook an additional special study last year, ``An Examination of
the High Unemployment Rate for Young Veterans: Based on the Labor
Market Experience of Illinois Veterans Discharged from 2001-2006.'' The
available data supports the hypothesis that the potential for
unemployment of a veteran would be at its highest within months after
discharge. Among the study's results:
The largest proportion of military discharges is in the
20-24 age group. Of the Illinois veterans that were discharged in 2001-
2005, 45.9 percent were between 20 and 24 as of the last day of the
discharge year. However, only 2.1 percent of the national veteran labor
force falls in the 20-24 age range.
Of those IL veterans discharged in 2001-2005, 31.7 percent
fall into the 25-34 age group, compared to 12.0 percent nationally.
Veterans exiting from the Reserve/Guard have a lower
proportion filing new Unemployment Insurance claims than those veterans
who are exiting from the regular services, holding age group constant.
Thus, the Reserve/Guard discharges demonstrate the easiest transition
to civilian employment after military discharge, most likely because of
their prior employment history.
For many of the veterans discharged from the regular
services, enlistment may have been their first full-time job, their
first time away from home, and they are now eligible for unemployment
compensation and education benefits. The availability of education
benefits decreases the likelihood that veterans will transition
directly to work, particularly with regard to the 20-24 age group.
After a discharged veteran finds stable employment, the
probability is high that they will remain employed as long as they
continue to be part of the labor force.
As the Director of the Illinois Department of Veterans Affairs, I
see every day the struggles of families as they help their loved ones
drive long distances to a health care facility for the necessary
treatments and therapies of wounded veterans, including treatments for
physical, mental and emotional injuries. These struggles impact
spouses, parents and children. And, given the intermittent and often
lengthy treatment schedules, the needs of veterans must be recognized
and understood by employers. In my position, I also see the case work
that is required to help our Veterans find jobs and training that may
be required if one cannot return to their prior employment.
More personally, as an injured Veteran I've seen first hand what it
is like to try to re-integrate after a deployment and service-connected
injury. Since I am older and my husband and I own our own home, we only
had a dual challenge of finding jobs while trying to receive care in
our VA system. In particular, I want to highlight the stresses of
traveling to get care as well as the impacts that these stresses have
on the families of Veterans. I can attest to the hardship on my family
and employer. I live in suburban Chicago. To access my VA hospital
basically takes an entire day off from work because of the long drive
times as well as the common experience of long waiting times to see
medical professionals, obtain pharmacy services, etc. Now, I'm the
Director of a State Veteran's agency. I would not be surprised if I
routinely receive more conscientious service than most. I can only
imagine the challenges faced by a 20-year-old Veteran, trying to get
time off from work to attend day-long appointments at his VA medical
clinic. In fact, since the USDVA is so overburdened, many Veterans,
especially in rural areas, find that it can take multiple days to
obtain a single doctor's visit. One such example is the Danville VA
hospital in central Illinois that routinely denies Veterans access to
their local physicians for procedures as simple as a chest x-ray. The
veteran is instead forced to take once-a-day shuttles to pick up points
for a second shuttle. If one misses any of the shuttles, one must stay
overnight, out of ones' own pocket, to catch the next day's shuttle.
When they finally reach Danville, it is a common experience for a
Veteran to wait 4 hours to see a medical professional, followed by
another 3-4 hour wait for pharmacy services. In the end, it is not
unheard of for a Veteran to spend 3 or 4 nights away from home for a
single doctor's visit.
Despite our progress, we clearly must work harder as a State and a
Nation to better re-employee our Veterans. I recommend the committee to
consider:
(1) Helping establish an information sharing agreement between
States and Federal agencies so the States and territories can be
notified when a Veteran has left Federal service (either through the
DOD or the VA medical system) and is returning home. This will allow
States to immediately make contact with the Veteran to extend services
ranging from employment to housing, medical care, and advocacy services
in filing USDVA compensation claims.
(2) Provide legislation that would protect Veterans' right to take
time off from work to obtain medical care resulting from their military
service.
(3) Monitor the USDVA re-employment and Vocational Rehabilitation
program for consistency across the Nation. These awards for educational
and vocational rehabilitation are subjective and vary disparately
across the Nation. A Veteran's right to such funding should not be
dependent on where he lives.
I commend this panel for asking these very important questions
about accommodations for our veterans, and your efforts to make sure
our Veterans are able to return to work and have the information they
need to do so. We should all demand that our Veterans have access to
care that is commensurate to their dedication to our country.
I would be happy to take any questions.
The Chairman. Excellent suggestions.
Lieutenant General McCarthy.
STATEMENT OF LIEUTENANT GENERAL DENNIS M. McCARTHY, NATIONAL
EXECUTIVE DIRECTOR, RESERVE OFFICERS ASSOCIATION, WASHINGTON,
DC.
Lt. General McCarthy. I thank you, Mr. Chairman, and
Senator Isakson, members of the committee, for the opportunity
to testify. I'm honored to be here with Major Duckworth and
Lieutenant Colonel Duarte.
I couldn't be more proud of the people who are serving
today and in particular the, as you say, over 600,000 citizen-
warriors, who, from time to time, leave their civilian
employment to wear the uniform of their Nation. For most of
those great Americans their service has been made possible by
the support that they receive from their employers. The
Nation's employers, I think, have been shown to have done a
tremendous job over the past 5 years. Most of them have been
incredibly supportive of their employees who serve in uniform.
Many have gone above and beyond what the requirements of law
place on them. And they should be congratulated and supported
by their fellow citizens.
But there are some conflicts and those conflicts must be
resolved promptly and fairly. Fortunately we have a very strong
law in USERRA, but enforcement of USERRA can sometimes be
cumbersome and that's where I think the Congress can help.
I'd like to respectfully suggest six actions, which the
Reserve Officers Association believes are necessary.
First, resource the National Committee on Employment
Support of Guard and Reserve appropriately. Beef up their
outreach program and their ombudsman program so that they can
solve problems at the lowest level.
Our second recommendation is that the Department of Labor
needs a specific set of USERRA investigators, rather than rely
on generalists who cover all of the different Labor areas.
Third, USERRA records should be maintained electronically,
so that they can be effectively passed between the service
member and the various agencies that could be involved in their
case.
Fourth, Congress should mandate better reporting by all
Federal agencies. How many cases are there, really? How are
they resolved and how long do they take to be resolved? Quite
frankly, the reporting has been very, very confusing to those
of us who have been trying to get those answers.
Fifth, we believe that the Office of Special Counsel should
handle all of the cases involving Federal employees, in order
to free up the DOL VETS program to work with private employers
where we have the majority of the cases. And last, I'd ask you
to please consider the establishment of a law center at the
Reserve Officers Association.
We have been working, quite frankly, in this area for a
number of years and we've done some great work in creating an
information sharing program and in providing continuing legal
education to private counsel. But we could do a lot more with a
very, very small amount of Federal resources. And I think that
if we were to do that, we would significantly enhance the
services being provided to these great young men and women.
They are the next greatest generation and they truly deserve
our very best.
Thank you. I invite your questions.
[The prepared statement of Lieutenant General McCarthy
follows:]
Prepared Statement of Lieutenant General Dennis M. McCarthy,
USMC (Ret.)
The Reserve Officers Association of the United States (ROA) is a
professional association of commissioned and warrant officers of our
Nation's seven uniformed services, and their spouses. ROA was founded
in 1922 during the drawdown years following the end of World War I. It
was formed as a permanent institution dedicated to National Defense,
with a goal to teach America about the dangers of unpreparedness. When
chartered by Congress in 1950, the act established the objective of ROA
to: ``. . . support and promote the development and execution of a
military policy for the United States that will provide adequate
National Security.'' The mission of ROA is to advocate strong Reserve
Components and national security, and to support Reserve officers in
their military and civilian lives.
The Association's 70,000 members include Reserve and Guard
Soldiers, Sailors, Marines, Airmen, and Coast Guardsmen who frequently
serve on Active Duty to meet operational needs of the uniformed
services and their families. ROA's membership also includes officers
from the U.S. Public Health Service and the National Oceanic and
Atmospheric Administration who often are first responders during
national disasters and help prepare for homeland security. ROA is
represented in each State with 55 departments plus departments in Latin
America, the District of Columbia, Europe, the Far East, and Puerto
Rico. Each department has several chapters throughout the State. ROA
has more than 505 chapters worldwide.
ROA is a member of The Military Coalition where it co-chairs the
Tax and Social Security Committee. ROA is also a member of the National
Military/Veterans Alliance. Overall, ROA works with 75 military,
veterans and family support organizations.
DISCLOSURE OF FEDERAL GRANTS OR CONTRACTS
The Reserve Officers Association is a private, member-supported,
congressionally chartered organization. Neither ROA nor its staff
receive, or have received, grants, subgrants, contracts, or
subcontracts from the Federal Government for the past 3 fiscal years.
All other activities and services of the Association are accomplished
free of any direct Federal funding.
President: Col. Paul Groskreutz, USAFR (Ret.), 770-973-5584.
Staff Contacts:
Executive Director: Lt. Gen. Dennis M. McCarthy, USMC (Ret.), 202-
646-7701.
Legislative Director, Health Care: CAPT Marshall Hanson, USNR
(Ret.), 202-646-7713.
Air Force Affairs, Veterans, Retirement: Lt. Col Jim Starr, USAFR
(Ret.), 202-646-7719.
Army, QDR/G-R Commission: LTC Robert ``Bob'' Feidler (Ret.), 202-
646-7717.
USNR, USMCR, USCGR, USPHS, NOAA: Mr. Will Brooks, 202-646-7710.
Mr. Chairman and distinguished members of the Health, Education,
Labor and Pensions Committee, on behalf of our 70,000 members, the
Reserve Officers Association would like to express our appreciation for
the opportunity to present testimony on issues that affect the 1.1
million men and women now serving in America's Reserve Components.
As ongoing contingency operations continue to bring about more
mobilizations and deployments for Reserve Component members, many of
these outstanding citizen soldiers, sailors, airmen, Marines, and Coast
Guardsmen have put their civilian careers on hold while they serve
their country in harms way.
As the Global War on Terrorism enters its seventh year, stresses
are being placed on the employers of this Nation's Guard and Reserve
members who have been partners in fighting this war. The vast majority
of our Nation's employers are very patriotic, but as our Nation
continues military operations on a global scale, Reserve Component
members are being mobilized, some for the second or third time, with
employers facing many problems on the business front.
Because of this, the Reserve Officers Association has noted an
increase in re-
employment problems. ROA retains a lawyer to counsel National Guard and
Reserve members as they are preparing to deploy and after they return.
We have seen an increase in the number of phone calls and e-mails that
ROA has been receiving.
The nature of the problems is changing. While many challenges still
relate to lost jobs or demotions, others are dealing with lost
seniority, promotions, pay raises and other employment-related matters
protected under the Uniformed Services Employment and Reemployment ACT
(USERRA). The vast majority of these problems are corrected through
good communications, as is demonstrated by the ombudsman program of the
Employer Support for the Guard and Reserve that does an excellent job
in correcting a large portion of these disagreements. Yet, not all the
problems that arise can be settled through mediation.
USERRA is essentially a good law, but the challenge is enforcing it
when the involved parties disagree. When Guard and Reserve members
return to civilian employment following Federal service, actions need
to follow through to enforce the law. A growing population of Reserve
Component members feels that the Federal Government isn't doing enough.
Background: The Uniformed Services Employment and Reemployment
Rights Act (USERRA) significantly strengthens and expands the
employment and re-employment rights of all uniformed service members.
Re-employment rights extend to persons who have been absent from a
position of employment because of service in the uniformed services,
which means the performance of duty on a voluntary or involuntary basis
including:
Active duty,
Active duty for training,
Mobilization,
Presidential Recall,
Active duty for Special Work,
Initial active duty for training,
Weekend or Weekday Drill,
Absence from work for an examination to determine a
person's fitness for any of the above types of duty,
Federal National Guard Duty,
State National Guard Duty,
Funeral honors duty performed,
Duty performed by intermittent disaster response personnel
for the Public Health Service.
USERRA was signed into law by President Clinton October 13, 1994,
but the law is actually 63-years-old. USERRA was a complete rewrite of
the Veterans' Reemployment Rights (VRR) law, which can be traced to
August 1940, when Congress provided re-employment rights to those who
left civilian jobs when voluntarily or involuntarily recalled to active
duty. The law was amended during the 1960s to provide protection to
National Guard and Reserve members performing training duty.
USERRA applies to ``re-employments initiated'' on or after December
12, 1994, while preserving vested rights under the prior law.
Section 4301 of USERRA (38 U.S.C. 4301) sets forth the purposes
that Congress had in mind when it enacted this law: to encourage
service in the uniformed services; to minimize disruption of employment
and income by providing for the prompt re-employment of those who have
served; and to prohibit discrimination against those who serve or have
served. Section 4301 also sets forth ``the sense of Congress that the
Federal Government should be a model employer in carrying out the
provisions of this chapter'' [38 U.S.C. 4301(b)].
On December 19, 2005, the U.S. Department of Labor (DOL) published
final regulations impacting USERRA. The regulations clarify the rights
and obligations of individuals serving in active duty with respect to
their civilian employment. The DOL also finalized regulations regarding
employer notice obligations of USERRA rights in the workplace, which
took effect on January 18, 2006. A complete text of the regulations is
available at www.dol.gov/vets/regs/fedreg/final/2005023961.pdf.
Discussion: Currently, the agencies tasked to enforce USERRA are
the Departments of Labor and Justice. DOL's Veterans' Employment and
Training Service (VETS) handles USERRA complaints and other veterans'
issues. DOL-VETS provides assistance to all persons having complaints
under USERRA. If resolution is unsuccessful following an investigation,
the privately employed Reservist may have his or her claim referred to
the Department of Justice for consideration for representation in the
appropriate District Court, at no cost to the claimant.
Labor currently employs 189 investigators nationwide with authority
to perform USERRA investigations. Of those, 115 are primary
investigators; the other 74 are regional administrators and management
officials. DOL's fiscal year 2007 budget for veteran re-employment
rights enforcement was $13.7 million. These investigators work other
cases beside USERRA.
Labor officials told GAO that the department had 166 USERRA
complaints by federally employed service members from the beginning of
the project in 2005 through fiscal year 2006. Of those, it ``closed''
155 (93 percent). The GAO has indicated that average time for
processing complaints was between 53 and 86 days, although the data
used may have included duplicate complaints. Some files were credited
as ``closed'' without resolution, and time is not measured by actual
elapsed time, but by time spent processing.
Unfortunately, actual elapsed times of cases often take 1 to 2
years to investigation and process. Within DOL, cases are still
processed on paper; this slows information transfer, and creates the
risk of duplication. In the vast majority of cases, the outcome is
dismissal of the claim. Since USERRA's passage in 1994, most USERRA
enforcements were by Reservists who sought private litigation.
A demonstration project was established by the Veterans Benefits
Improvement Act of 2004 (VBIA). In the act, Congress expanded Office of
Special Council's (OSC) role. Under the VBIA, jurisdiction over
federally employed Reservist USERRA cases was split between OSC and
DOL-VETS. Since 2005, about half of the serving RC members with Federal
re-employment problems could have allegations directly investigated by
OSC.
OSC employs seven people; a unit chief, three investigators and
three attorneys, who focus almost solely on USERRA cases. The office
has a budget of $2.5 million. GAO said OSC received 269 complaints from
the start of the project in 2005 through September 2006. Of those, it
closed 176 cases (65 percent) at an average 115 days per case.
OSC reported 45 corrective actions out of 176 cases resolved. The
Department of Justice's Civil Rights Division has filed 13 lawsuits and
reaching 7 consent decrees since fiscal year 2005.
GAO reports that 72 percent of Reservists with re-employment
problems never seek Federal remedy. Many are discouraged by the elapsed
time it takes for DOL to investigate and process complaints as the
employee is in ongoing disagreement with their employers during the
duration. Others Reserve Component members can't afford private
litigation. The Reserve Officers Association received a report about
one Army Reserve unit where of 79 members who returned from deployment
11 faced re-employment problems, with most simply seeking different
employment. What is needed is not only a Federal office which can focus
and streamline USERRA cases, but a collaboration between Federal and
private representation to serve this country's patriots who are
transitioning back to becoming private citizens following a tour as
warriors.
The Reserve Officers Association is exploring the establishment of
a Servicemembers Law Center, advising active and Reserve members who
have been subject to legal problems that occur during deployment. This
new center would be located in the 5 renovated Minute Man Memorial
Building on Capitol Hill. A position paper is attached to this
testimony.
The law center would provide counseling to demobilized Reserve and
separated Active component members, and could provide a referral
service for those who needed legal assistance. This law center would
also educate private lawyers about USERRA and the Servicemember Civil
Relief Act and promote representation of RC members by private lawyers.
CONCLUSION
The Reserve Officers Association recommends the following:
(1) The National Committee for Employer Support of the Guard and
Reserve (ESGR) should be better resourced to expand its outreach
programs as it is better to prevent a problem by educating employers or
resolve a problem at the lowest level.
(2) The Department of Labor should follow the success of the Office
of Special Council with dedicated investigators and lawyers assigned to
DOL-VETS who specifically focus on USERRA cases.
(3) The Office of Special Council should handle all of the Federal
employee USERRA cases.
(4) USERRA case files should be electronically maintained and
transmitted, allowing access to ESGR, DOL-VETS, OSC, and DOJ and the
service member.
(5) Congress should mandate better reporting by all Federal
agencies by providing details on:
how many cases;
how they are resolved; and
how long the actual elapsed time takes. Accomplishment of
objectives should be measured by results rather than outputs.
(6) ROA also hopes that the committee will support the
Servicemembers Law Center project. It would be a:
hub for sharing information on USERRA and SCRA; and
an education source on rights and responsibilities under
USERRA for serving members and providing continuing legal education to
private council.
(7) Further, we hope this committee will support improvements to
USERRA and work with the Veterans Affairs committee to accomplish this.
Additional items are needed to strengthen USERRA:
Do not allow employers to discriminate by asking
prospective employees if they are in the Guard or Reserve.
Exempt employees from penalties when their insurance
lapses if their motor carrier license expires while mobilized (i.e.,
the Federal Motor Carrier Safety Administration).
Exempt from age restrictions for Federal law enforcement
retirement application when deployment causes the member to miss
completion of the application to buy back retirement eligibility.
Work with Federal agencies to abide by USERRA/SCRA
standards.
Amend 38 U.S.C. 4323(d)(1)(C)--the ``liquidated damages''
provision in the amount of $20,000 or the amount of the actual damages,
whichever is greater. Provide a provision in section 4324--for the
Federal executive agencies provision, such as found in section 4323--as
it applies to States, political subdivisions of States, and private
employers.
Amend Title 38 U.S.C. 4323(e) to mandate (rather than
simply permit) injunctive relief to prevent or correct a USERRA
violation.
Amend Title 49 U.S.C. 44935 to include Transportation
Security Administration (TSA) screeners under USERRA.
Amend 38 U.S.C. 4302(b) to make it clear that USERRA
overrides an agreement to submit future USERRA disputes to binding
arbitration.
Amend 38 U.S.C. 4303 (definition of ``employer'') to
clarify that a successor in interest inherits the predecessor's USERRA
obligations and that there need not be a merger or transfer of assets
to support a finding of successor liability.
Amend 38 U.S.C. 4323 and 4324 to authorize punitive
damages for willful and egregious USERRA violations.
Devise a method to tie the escalator principle to merit
pay systems.
______
Attachment.--ROA Position Paper
SERVICEMEMBERS LAW CENTER
Concept: ROA Servicemembers Law Center, advising active and Reserve
members who have been subject to legal problems that occur during
deployment. This new center would be located in the renovated Reserve
Officers Association Building.
Justification: Recruiting of prior service members into the Reserve
Component is on the decline because service members leaving active duty
fear ramification of ongoing deployments on new civilian careers. A
legal center would help:
Recruit: Encourage new members to join the Guard and Reserve by
providing a non-affiliation service to educate prior service members
about Uniformed Services Employment and Reemployment Rights Act
(USERRA) and Servicemember Civil Relief Act (SCRA) protections.
Retain: Work with Active and Reserve Component members to counsel
Uniformed Services Former Spouse Protection Act (USFSPA), USERRA and
SCRA protections for deployed or recently deployed members facing legal
problems.
Law Center's Services
Counseling: Review cases, and advise individuals and their lawyers
as to legitimacy of actions taken against deployed active and reserve
component members.
Referral: Provide names of attorneys within a region that have
successfully taken up USFSPA, USERRA and SCRA issues.
Promote: Publish articles encouraging law firms and lawyers to
represent service members in USFSPA, USERRA and SCRA cases.
Advise: File Amicus Curiae, ``friend of the court'' briefs on
service member protection cases.
Educate: Quarterly seminars to educate attorneys to provide a
better understanding of USFSPA, USERRA and SCRA.
ROA's Contributions:
ROA would set-aside office spaces.
ROA's Defense Education Fund would hire an initial staff
of one lawyer, and one administrative law clerk to man the
Servicemembers Law Center to advise and counsel individuals and their
legal representatives.
Anticipated startup cost, first year: $750,000 (for personnel,
furnishing, leasing, travel, etc.).
The Chairman. Thank you. Those are good suggestions,
helpful.
Lt. Colonel Duarte.
STATEMENT OF LIEUTENANT COLONEL JOSEPH STEVE DUARTE, U.S.
MARINE CORPS, CENTENNIAL, CO
Lt. Colonel Duarte. Mr. Chairman, I'm honored to be here
before you and speak about my experiences with USERRA in regard
to ESGR. I'm also pleased to be accompanied by my wife, Mary
Duarte, my daughter, Danielle Duarte, and my parents, Erla
Duarte and my father, who is a former U.S. Marine who fought in
Korea, with me today.
I have faithfully served my country as a U.S. Marine for 29
years. Concurrent with my Marine Corps service, I'm employed by
Hewlett Packard and Agilent Technologies, and was deployed
successfully for 19 years prior to my deployments. Upon my
return from Operation Iraqi Freedom in July 2003, I worked for
them for 3 months and on November 10, 2003, the 220th birthday
of Marine Corps, I was told I was being fired from my company.
Now, prior to my deployments, I was briefed on my USERRA
rights and the laws that were supposed to protect me. And I
felt confident that these USERRA rights or government agencies
or the company I even worked for would help me resolve my
situation. I was fired by two or three managers who worked
directly with me, from my company, but the most significant
thing about that was that the senior leadership of that
company, the CEO and the highest ranking HR member of that
company, were conspicuously absent throughout the entire 13-
month process. So, they were pretty much--the managers who
worked directly with USERRA were out there on their own.
I did attempt to communicate----
The Chairman. I don't understand. The people in your
company, overall heads of the company were detached from your--
--
Lt. Colonel Duarte. Yes. Yes, sir. That's correct. There
were three managers directly related to the case that fired me,
but the senior level above them were conspicuously absent
throughout the entire process.
Now, I did attempt to communicate with them directly, via
e-mail, the day after I was told I was being fired. And within
24 hours after sending my e-mail directly to them--and I did
include the CEO of the company, the VP of HR, and the highest
levels of the management with Agilent Technologies. The answer
I received back from them--and I'll just briefly read an
excerpt from that--``We have received the concerns expressed in
your memo. We have concluded that USERRA does not prohibit us
from selecting you as a participant in Agilent's workforce
management program.'' This response came back less than 24
hours after I sent my communication to them. And really, in
less than 24 hours they were completely knowledgeable about
USERRA and felt that they knew exactly what they needed to do
with that. There was no question in their mind what they wanted
to do.
On November 13, a couple days after I was being told I was
fired, is my first contact with ESGR. I explained my deployment
history and my timeline of events and pending terminations.
Without any further comment or questions, they give me a phone
number to the Department of Labor of VETS. They did not offer
any guidance, any mediation, any informal investigation, or no
training related to USERRA. They gave me the phone of the VETS
and DOL. They did not relate my process or any process I should
follow, except to contact the DOL.
The DOL, I contacted them with the number they gave me from
ESGR and they were equally ineffective. The person I spoke to
at the Department of Labor of VETS, and I'll quote. She said,
``Unless your termination was for military reasons, you have no
case.'' And they again offered no guidance, mediation,
investigation of any sorts or any referral of any process I
should follow.
I filed my case in district court the following February
2004. And loss of my livelihood, the support of my family and
career change at age 51 were on the line, along with the fact
that many thousands of troops returning were potentially
following the same fate that I did. I surmise that many of
these returning service members and Guard members would be
pushed aside by ESGR with the same response I was given. Many
younger privates, airmen, lance corporals, sailors, or
sergeants might not have the time, resources, or wherewithal to
fight or question wrongful terminations, regardless of job
change.
Without the aid of USERRA--or without the aid of ESGR, DOL,
Agilent and its attorneys treated me as though I had broken the
law. They attacked my personal performance, my skill sets, they
eliminated my job and reposted it 3 months later verbatim, the
way it was written when I was doing the job. They also had me
sign releases during the court case to get release of my
medical records, my military records, my financial background,
and even criminal records. They were looking for anything they
could to discredit me.
Not one member of our military should ever be subjected to
treatment such as this, especially after deployment in the
defense of our country.
The case lasted 13 months and in March 2005, Agilent
Technologies was found in violation of USERRA. The cost to
Agilent Technologies has been estimated at $1 million. They
chose to specifically fight this case, spend a significant
amount of money, hire a large firm, and fight a single military
veteran, while this country was still at war.
My second contact with ESGR was 4 months after I filed my
case and 7 months after my initial contact with ESGR. And I
received a call from Fred Fleetmeier, who is the Chairman of
the Colorado ESGR. He asked about my status. I informed him
about my conversation that I had initially with his ombudsman
and when I told him what they had said, he said, ``What is your
current status today? '' And I said, ``I have filed a lawsuit
in the district court.'' He immediately ended the conversation,
again, providing no other resources or avenue of what I should
do. He said, ``We cannot help you any more,'' and almost,
promptly hung up.
Companies and organizations interpret labor laws through
their own biased filters and business needs, who dehumanize the
effect based on the bottom line. While many companies share the
country's burden of being at war, other companies share none.
Still, there are many businesses, organizations, agencies, and
civilians that do not have any idea or care to have an idea
what the military member has sacrificed for his country and
family. For the most part the military member has become an
inconvenient leave of absence and disruption to their business.
I sued Agilent Technologies because they were one of the
companies who completely ignored the fact that this country was
at war, and a war for which they neither acknowledged nor
demonstrated any shared responsibility. They also chose to
interpret USERRA to meet their own financial needs. They broke
the law.
I spent----
The Chairman. I'm going to give you just another minute or
so, because I want to hear from Mr. Halbrook and today we've
got a vote that's going on.
Lt. Colonel Duarte. Yes, sir. I spent $12,000 of my own
money and turned down a settlement offer of $325,000 to
continue this lawsuit.
My ordeal, unnecessary ordeal, with Agilent has made me and
my family stronger. It has also significantly increased my
conviction that no other member of our military ever endure
this treatment, especially after dedicated and faithful service
to their country. I've gratefully accepted your offer to
testify here today and flew myself out here at my own expense
for my brothers and sisters in the military. We need to
continue to pursue and defend all USERRA issues as they occur
with our returning Reservists and Guard members, as this law
will be meaningless without enforcement.
Thank you, Mr. Chairman.
[The prepared statement of Lieutenant Colonel Duarte
follows:]
Prepared Statement of Lieutenant Colonel Joseph Steve Duarte (USMC)
OPENING
Mr. Chairman and distinguished members of the committee, I am
honored to appear before you today to speak about my experiences with
the Employer Support of the Guard and Reserve in regards to helping
other service members understand their resource options and rights
under the Uniform Services Employment and Reemployment Act (USERRA). I
am pleased to be accompanied at today's hearing by my wife, Mary
Duarte, my daughter, Danielle Duarte, my mother, Erla Duarte and my
father, a former U.S. Marine who fought in Korea, Joe Duarte.
More than anytime since WWII, the U.S. Armed Forces are relying on
National Guard Members and Reservists to carry out their missions.
Since September 11, greater than one half million Reservists and
National Guard members have dutifully left their civilian jobs and
families and risked their lives alongside active duty troops. I was one
of those Reservists and I am here to relate my personal experience with
regard to the transition from military duty to civilian life.
Many of our troops have assimilated back into the civilian world
with family and careers which were interrupted while they were called
upon to do the work of the country. However, thousands of others like
me, have returned home to problems with our civilian employers.
Employment problems that have included: demotion, loss of pay and
benefits, and even flat-out firings--as happened to me.
MILITARY BACKGROUND
I was a U.S. Marine for 29 years. I was commissioned a Second
Lieutenant in the U.S. Marine Corps in April 1977. I served on active
duty until April 1980 as a Marine Artillery Officer. I became a Marine
Reservists in September 1980 and maintained this status until called to
Active duty following the attacks on the World Trade Center in
September 2001. From October 2001 to April 2002, I was activated in the
capacity of a Marine Liaison Officer assigned to the Joint Force
Command in Norfolk, Virginia. From November 2002 to July 2003, I was
activated in the capacity as a Marine Advisor to the Navy Seabees
operating in Kuwait and Iraq during Operation Iraqi Freedom. From June
2005 to March 2006 I was activated and assigned duties as the Senior
Operation Office in the Fourth Marine Division Command Operations
Center in New Orleans, Louisiana, prior to, during and after Hurricane
Katrina. I retired from the Marine Reserves in March 2006.
CIVILIAN BACKGROUND
Concurrent with my service in the Marine Corps, I have remained
employed in the private sector. From April 1980 to October 1984 I was
employed by Texas Instruments as a Manufacturing Supervisor. From
November 1984 to November 2003, I was employed by Hewlett-Packard as a
Human Resource Generalist performing such functions as Compensation,
Recruiting, Training and Organizational Development issues. In November
1999, Agilent Technologies, Inc. was spun off from HP. As a long-term
HP employee, all my seniority rights continued with me in my move to
this new spin off company. I was primarily assigned duties as a Senior
Design Consultant for Sales, in the Corporate Compensation department.
Agilent Technologies is the company which fired me in November
2003. I returned from Operation Iraqi Freedom in July 2003 and on
November 10, 2003, the 228th Birthday of the U.S. Marines, I was told
by my manager that I was being fired.
MY OPTIONS
In 1994 Congress passed the Uniformed Services Employment and
Reemployment Rights Act, or USERRA. My understanding is that at least
part of the rational behind the law is that when the Nation goes to
war, everyone should share in the responsibility and not just the men
and women on the front lines.
Prior to my active duty assignments following September 11, 2001, I
was briefed on USERRA as a law that was supposed to protect Reservists
rights. I understood USERRA guaranteed service members their civilian
jobs back upon their return and that it included both public and
private sector employers. Returning Service members were guaranteed re-
employment for at least 6 or 12 months, depending on the length of
deployment.
At the time of my firing from Agilent Technologies, Inc. in
November 2003, my options were readily apparent and I felt confident
with the knowledge that there were laws written to protect deployed
personnel and government agencies specifically chartered to support
these laws. Given the patriotic wave of support throughout this country
since 9/11, I felt confident in that the USERRA law, the government
agencies or the company I worked for 19 years would somehow support my
deployment in the defense of our country and allow me to resume a
previously successful career.
I communicated directly with the highest levels of management
within Agilent Technologies, Inc. I contacted the ESGR immediately when
I received the word from Agilent that USERRA did not prevent them from
letting me go. I contacted the Department of Labor (VETS) as instructed
by ESGR. Having failed in my communications with my company and getting
no help from two government agencies, I hired private counsel.
EMPLOYER SUPPORT OF THE GUARD AND RESERVE (ESGR)
I understood ESGR's mission to ensure that public and private
employers support the men and women of the National Guard and Reserve.
It is their volunteer ``ombudsmen'' who are tasked with preventing,
resolving, or reducing employer and employee problems and
misunderstandings that result from National Guard or Reserve service by
providing information regarding USERRA, informal investigations and
informal mediation.
During deployment briefings, troops are reminded of their USERRA
rights and advised that if they have trouble with their civilian
employers, they should contact the local ESGR office. Military
Reservists and Guard Members are briefed and encouraged to first turn
to the Employer Support of the Guard and Reserve (ESGR). My
understanding as a Marine Officer was that the ESGR would be my
advocate to discuss any violations of USERRA.
JOB LOSS FROM AGILENT
My job firing was orchestrated by three individuals with absolutely
no regard for USERRA or my military situation or for that matter, my
performance in that civilian job. Actually, they regarded the law only
enough to scheme around it. One of these individuals sat within a short
walking distance in the same building from the top leadership of this
28,000-plus employee organization. The leaders I speak of here are the
CEO Ned Barnholdt and the Vice President of Human Resources and highest
ranking Human Resources member, Jean Halloran, both of who were visibly
absent during the entire process. Both were addressees on e-mails sent
directly to them and neither responded, apparently choosing to keep
their heads buried in the sand and refusing to acknowledge the 14-month
legal proceedings. They failed to acknowledge from even a patriotic
perspective knowing this country was at war and a single member of the
Agilent organization was questioning his military labor law rights
through USERRA. The total lack of leadership at the highest levels of
this organization and the total lack of management checks and balances
for a multi-billion dollar organization for labor laws like USERRA suggest
that their business needs and financial priorities were much greater than
the needs of this country.
The three individuals who orchestrated this violation of law and my
firing relied on a scheme they cooked up from a program known to
Agilent Managers as ``Workforce Management'', a euphemism for firing
employees! The Workforce Management program had been used by Agilent
Technologies over the preceding 4 years, to lay off 12,000-plus
employees. This program, prior to my firing in November 2003, had never
been used to lay off an employee who had been activated to military
service with rights under USERRA.
The Workforce Management program was a management tool used by
Agilent Technologies to effectively eliminate positions. Since their
spin off from Hewlett-Packard in November 1999, Agilent Technologies
had essentially reduced their workforce from 40,000-plus employees to
approximately 28,000 employees at the time of my release from the
company in November 2003, a period of 4 years. This workforce program,
utilized for eliminating employees, had apparently survived the labor
laws for the release of minorities, women, older employees or other
employees in protected classes, but it had never been utilized to
eliminate a USERRA-protected employee.
The Workforce Management program had two primary selection criteria
for managers to select from in targeting employees for termination. The
primary selection criteria were if the employee was involved in
programs, projects, or other work slated for elimination. The secondary
selection criteria were for such things as process improvement, excess
capacity or restructuring. For these secondary criteria, managers were
asked to list the future essential job functions, analyze the future
business needs and evaluate the individual critical skills for each
employee.
After my return to Agilent Technologies from Operation Iraqi
Freedom in July 2003, I was not given the position I held prior to my
deployment. My manager, Brunker had stepped down from her management
position and filled my position within the organization. My new
manager, Groniga, assigned me to a special project. Unknown to me, this
particular project is slated to be eliminated and because the project
is ended 3 months after being assigned to me, the first selection
criterion for the Workforce Management program is met. Concurrent with
this project assignment, Brunker was asked to complete a performance
evaluation on me based on 4 months observation (prior to my deployment)
and to also complete a skills assessment on me. Brunker writes a
performance evaluation that identifies many areas for improvement this
was substantially different than my two previous evaluations written by
two separate managers. Those were glowing. Brunker also conducts a
``critical skills assessment'' and scores me significantly low and was
ultimately reviewed and approved by Groninga. After nearly two decades
with this organization (Hewlett-Packard and Agilent Technologies), my
skills are now rated as significantly diminished and degraded. Suddenly
the company saw me as if I were a different, unqualified person.
On November 10, 2003, I was told by Groninga that I am being
selected for ``Workforce Management'' because the project I am working
is going away. After almost two decades with this organization, I was
told I have 1 week to clean out my desk and my last day would be
November 17, 2003. It was after this phone conversation with Groninga
that I contacted my Commanding Officer, Colonel Aucoin, who advises me
to send a communication to Agilent Technologies that they are in
violation of USERRA. On November 12, I sent an e-mail directly to Jean
Halloran (VP of HR for Agilent Technologies, and copies to the CEO,
Groninga, Brunker, Juskie, and several other managers. The following is
an excerpt from this e-mail communication:
As a member of HP and Agilent HR workforce for 19-plus years,
I understand the companies need to manage it's workforce. If
you proceed with the process to end my employment with Agilent,
you will be in violation of Federal Law; 38 U.S. Code 4316(C)
4317(C) (USERRA).
Within 24 hours after sending my e-mail to Agilent officials, I
received an e-mail reply on November 13, from Steve Remmel (Agilent
Group Human Resources Manager), the following is an excerpt from that
response:
We have reviewed the concerns expressed in your memo. We have
concluded that USERRA does not prohibit us from selecting you
as a participant in Agilent 's Workforce Management Program.
In less than 24 hours or 1 business day, Agilent Technologies, Inc.
is totally knowledgeable and completely confident in their assessment
of USERRA, and that this fairly new labor law with little case law
support does not prevent them from letting me go.
FIRST CONTACT WITH ESGR
I first contacted the ESGR on November 13, 2003. I briefly
explained my deployment history, timeline of events and my pending
termination. Without further comments, questions or discussion, I was
immediately referred to the Department of Labor. The ESGR contact did
not offer me any guidance regarding an informal investigation they
might conduct with Agilent Technologies. The ESGR contact did not
mention anything related to any mediation they might conduct. The ESGR
contact offered no guidance or training related to USERRA. The ESGR
contact did not relate any process that I should follow except to
contact the Department of Labor.
The ESGR Ombudsman was completely ineffective to my firing in
November 2003. A situation where my employer raised many flags and
would eventually be found in violation of USERRA and obvious
misconduct. The ESGR Ombudsman offered no research to any potential
USERRA violations and never volunteered to conduct an informal
investigation. The ESGR made no attempt whatsoever to review my
potential USERRA situation and never offered mediation or suggestion to
contact Agilent for additional information.
CONTACT WITH DEPARTMENT OF LABOR
The ESGR Ombudsman I spoke to on November 13, gave me a phone
number to call when he referred me to the Department of Labor. I called
this number (303-844-2151) on November 13 and received a recorded
message for a Mark McGinty, whereby I left my name and number on his
voice mail. This phone number was for an organization known as the
Veterans Employment and Training Services (VETS). I received no return
call from Mr. McGinty and on the next day I tried the phone number
again. This time I was connected with Teresa Arney, a VETS Program
Assistant, who spoke to me in person. Again, I briefly explained my
deployment history, timeline of events and my pending termination. I
also explained that I was referred to this number by an Ombudsman with
the ESGR. She was quick to tell me that if I did not hear someone at
Agilent Technologies tell me that they were ``terminating me for
military reasons,'' that I did not have a USERRA case.
JOSEPH STEVE DUARTE V. AGILENT TECHNOLOGIES, INC.
The case, Civil Action No. 04-B-0298 Mag. Div. (CBS), was filed in
U.S. District Court for the District of Colorado. After continued
discussions and consultations with Colonel Aucoin and having not heard
any responses from the ESGR or Department of Labor, I filed this suit
in February 2004.
In my professional Human Resources history with both Hewlett-
Packard and Agilent Technologies, whenever an employee filed a law suit
against the company, internal counsel would attempt to get the case
dismissed through Summary Judgment. If the case was not dismissed, then
outside counsel would be retained to handle the case. In my particular
situation, after I made my filing in U.S. District Court, Agilent
Technologies immediately hired one of the largest law firms in Colorado
to defend them. They hired the Denver law firm of Holland & Hart LLP.
I retained my Commanding Officer, fellow Marine and Civilian
Attorney George Aucoin. With limited financial resources and little
case law history we attempted to find out if USERRA had teeth. The loss
of my livelihood, the support for my family and a career change at age
51 were on the line, along with the fact that many thousands of troops
would return home to potentially the same situation. At the time, I
surmised that many of these returning Reservists and Guard Members
would be pushed aside by the ESGR with the same response I was given.
Many others might receive the same information by VETS and the
Department of Labor. Many younger Privates, Airman, Lance Corporals,
Sailors or Sergeants might not have the time, resources or wherewithal
to fight or question wrongful terminations or job status changes. Many
would possibly take a small or no severance package and move on in the
interest of continued support to there families.
Agilent Technologies attorney's pursued a multi-pronged approach to
discredit me through several avenues:
1. My old manager Brunker writes a Performance Appraisal with low
marks. Two previous managers on two separate appraisals mark me as
having acceptable performance.
2. My new manager Groninga assigns me to a special project upon my
return from Operation Iraqi Freedom. She alone cancels the project
which is the No. 1 criteria for the Workforce Management program
allowing for the termination.
3. My old manager Brunker, along with my new manager Groninga
complete a critical skills assessment on me. They are the only two to
score and evaluate the test which is the secondary reason for Workforce
Management.
4. My new manager Groninga states that my job has been eliminated
through a restructuring program. My exact position, verbatim, is posted
on an external Web site 3 months after I was released.
Agilent's attorneys suggest that my termination was justified due
to financial strain that Agilent Technologies was experiencing. During
the fiscal quarter in which I was let go, Agilent Technologies gave
bonus money back to the employees in the amount of $12-$13 million. I
myself received $500. Agilent Technologies makes significantly more
money in the year to follow.
6. Agilent's attorney's, looking for a defense; ask me to sign a
release for my medical records, previous income filings, military
records and criminal background. They apparently find nothing they can
use.
7. Agilent's attorneys accuse me of not looking for employment and
mitigating my circumstances during the year long case. I provide
monthly documentation to them demonstrating greater than 150 resumes
submitted to companies for the various functions within HR.
The case lasted 13 months and in March 2005 Agilent Technologies,
Inc. was found in violation of USERRA. Me, my family and Colonel Aucoin
invested hundreds of hours in time. The out-of-pocket expense to me and
my family exceeded $12,000. This financial expenditure was all during a
time of unemployment, with limited funds coming from continued Marine
Reserve duty, unemployment compensation and an Agilent Severance
package. Without a steady income, there was a reluctance to spend money
and conserve my assets.
The cost to Agilent Technologies, Inc., which include such items as
attorneys fees (defendant and plaintiff), judgments, back pay and
interest, not to mention loss in productivity to managers, has been
estimated at nearly $1 million. This is significant in that given the
7-month severance they gave me, with an additional 1 month pay and 8
months worth of benefits, they could have kept my services for 8 months
and fired me for any reason they wanted after my USERRA 12-month re-
employment requirement. They chose to specifically fight this cause,
spend a significant amount of money, hire a large law firm and fight a
single military Veteran while this country was still at war. A billion
dollar corporation like Agilent Technologies, can afford to spend a
million dollars on a legal issue.
The DOD Ombudsman or the Department of Labor-VETS could have
inquired or intervened with any of the above listed items and
reasonably determined that information, education, investigation
(formal or informal) or mediation would have produced better results.
FINAL CONTACT WITH ESGR
During my case, my final contact with ESGR occurred when I received
a call from Fred Fleetmeyer, the Colorado Chairman for the ESGR,
sometime during June 2004. This phone call was about 7 months after my
initial contact with ESGR. For some reason or another he had heard
about my situation with Agilent Technologies, and inquired about my
current status. I informed him about my conversations with two
Ombudsmen from the Colorado organization (the names of which I
mentioned to him at the time of this conversation but cannot recall
now) and their giving me the phone number and forwarding me to the
Department of Labor. He inquired as to my current status and when I
mentioned that I had acquired private counsel and filed a case through
District court, he stated that the ESGR could not help me and
immediately ended the conversation. He neither asked nor suggested any
conversation about the problems associated with my initial contact with
the Colorado ESGR.
WHY I SUED AGILENT TECHNOLOGIES?
I have been a Human Resources professional for 20 years and have
been involved with many terminations, suspensions, downsizing, lay-
offs, demotions and various employment statuses for which these laws
were enacted to protect. Companies and organizations interpret labor
laws through their own bias, filters and business needs and will
dehumanize the effects based on the bottom line. While many companies
share this countries burden of being at war, other companies share
none.
USERRA as recently re-drafted in 1994, is a fairly new labor law
for which many companies have little or no experience. It has been my
experience in working within both the public and private sectors, that
many companies follow the labor laws enacted to protect employees.
However, there are still many businesses, organizations, managers and
civilians that do not have any idea or care to have any idea what the
military member has sacrificed for his country and family. For the most
part, the military member has become an inconvenient ``Leave of
Absence'' (LOA) and disruption to their business.
I sued Agilent because they were one of these companies who
completely ignored the fact that this country was at war and a war for
which they neither acknowledged nor demonstrated any shared
responsibility. They also choose to interpret USERRA to meet their own
financial needs. THEY BROKE THE LAW.
This company, through its manager Vicki Groninga, went out of its
way to fire me after I returned from Operation Iraqi Freedom. Ms
Groninga was a manager within Agilent's corporate Human Resources
organization with access to corporate counsel and should have known the
consequences to violations of Federal law. CERTAINLY AFTER MY E-MAILS
TO HER AND OTHER MANAGERS LAYING OUT THE LAW. It was Groninga who
wanted me gone and she used Agilent's rules to fire me. In my opinion,
Ms Groninga is one of those civilian managers who does not have any
idea or care to have any idea what the military member has sacrificed.
THE LAW EXISTS TO PROTECT SERVICE MEN AND WOMEN FROM MANAGERS LIKE
THIS.
Agilent Technologies manager was prepared to take whatever steps
and provide whatever resources necessary to eliminate my position
regardless of USERRA. This case demonstrated the fact that some
businesses and organizations are not afraid of USERRA, ESGR, Department
of Labor, Department of Justice or Office of Special Counsel. They are
fully aware that Reservists and Guard members do not have the time or
other resources to fight for their job status changes or lost
positions.
FINAL THOUGHTS
About 2 weeks before the case coming to trial, Agilent
Technologies, Inc., through their attorney, offered me $325,000 to
settle the case. For reasons stated earlier regarding all the
Reservists and Guard Members to follow me and return home, I turned
them down. By now it was a firmly entrenched principle and leadership
issue. I needed to determine if USERRA had teeth and could protect the
rights of all Reservists and Guard Members. I needed to know that
organizations who do not share in the responsibility or burden of this
country being at war, could not summarily dismiss USERRA as just
another labor law.
When I returned from Operation Iraqi Freedom I didn't fully
understand the USERRA law. I am not a lawyer but I expected various
government agencies like ESGR and the Department of Labor to help me.
The Employer Support for the Guard and Reserves failed me as a
returning service member, and failed completely and miserably. They
demonstrated absolutely no interest, willingness or desire to educate,
intervene or mediate between me and Agilent Technologies, Inc. It felt
as though they were on the side of the large corporations and
politically or otherwise did not want to lose the support of big
business. For whatever their reasons, as a government agency they
offered no support or empathy for my situation and I continued to move
forward as Marines are trained.
The Department of Labor-VETS, equally failed in their support for a
returning Veteran. They never offered or volunteered to investigate my
USERRA claim. They offered no comprehensive outreach of any sort nor
any education or training. They never offered to mention that a process
existed or should be followed. They never reviewed my rights and were
quick to dismiss my claim. Again, not being a lawyer, I relied heavily
on their counsel and advice.
Following my two deployments since September 11, 2001 and my
subsequent termination from Agilent Technologies, Inc. on November I7,
2003, my family and livelihood have been significantly disrupted. Being
deployed to a combat zone in defense of your country is difficult, but
a situation for which I was trained. Being released from your
livelihood after serving your country and getting no support from its
government agencies is reprehensible. Either agency (ESGR or DOL-VETS)
with minimal investigative effort could have (and should have) easily
uncovered the misconduct perpetuated by Agilent Technologies.
Agilent Technologies and their lawyer's, attacked and twisted every
part of my character, my past performance, my skills, and my general
worth to the company to win the case against me. After 19 dedicated
years to this company, the company allowed its attorney's to paint me
as lazy, unmotivated and questioned my integrity. My wife and three
children endured my job loss, the financial strain and this legal
challenge against us for 15 long months.
After Agilent broke the law of USERRA and fired me, I eventually
found employment. It was not easy. From November 2003 to June 2005, I
submitted well over 200 applications and resumes to various companies
for HR positions and received only two face-to-face interviews. From
June 2005 through March 2006 I was deployed to New Orleans with the 4th
Marine Division, physically enduring Hurricane Katrina from my assigned
post adjacent to the Mississippi River and near downtown New Orleans.
From April 2006 to August 2006 I returned to civilian life and was
briefly employed by Leprino Foods as a Compensation Specialist. For the
past 6 months I have been and currently employed by the city of
Westminster as a Senior Human Resources Analyst continuing my
responsibilities as a Generalist and my professional passion for
Compensation, Recruitment, Training, Organizational Development and
Employee Issues. MY ORDEAL, UNCECESSARY AND ILLEGAL ORDEAL, with
AGILENT, has made me and my family much stronger. It has also
significantly increased my conviction in that no other Marine, Sailor,
Airman, Soldier, Guardsman or any member of our military, ever endure
this treatment, especially after dedicated and faithful service to
their country. I have gratefully accepted your offer to testify here
today, and flew myself out at my own expense, for my brothers and
sisters in the military. We need to continue to pursue and defend all
USERRA issues as they occur with our returning Reservists and Guard
Members, as this law will be meaningless without enforcement. THANK YOU
FOR THE OPPORTUNITY TO SPEAK WITH YOU TODAY.
The Chairman. Well, thank you for a remarkable story.
Thanks for your service and thank you for a remarkable story.
It reminds us about what our responsibilities are. I appreciate
it. It's very moving.
Mr. Halbrook.
STATEMENT OF RICHARD HALBROOK, EXECUTIVE VICE PRESIDENT, DOLLAR
THRIFTY AUTOMOTIVE GROUP, INC., TULSA, OK
Mr. Halbrook. Chairman Kennedy, members of the committee,
I'm honored to be before you today. Thank you for the
invitation.
Dollar Thrifty Automotive Group is a Fortune 1000 company,
headquartered in Tulsa, Oklahoma. We rent cars under the Dollar
Rent-A-Car brand and the Thrifty Car Rental brand. We were
ranked one of America's most trustworthy companies by Forbes
Magazine in 2007. We believe that says a lot about the values
we hold and our integrity.
However, most important to the topic before this committee
and why we were invited this morning, was the distinguished
service award we received this year from the National Defense
Transportation Association, and most recently, the 2007
Secretary of Defense Employer Support Freedom Award. We were 1
of 15 U.S. employers out of 1,200 nominations to have been
honored by ESGR.
At the awards ceremony on September 12, here in Washington,
Thomas F. Hall, Assistant Secretary of Defense for Reserve
Affairs, said, ``In the military, the best leaders are those
who have always taken care of their people. It's no different
in the civilian workforce.'' We couldn't agree more. And with
that lead-in, let me give you some of the history about our
experience with USERRA.
Certainly, when you looked at USERRA, it didn't seem that
difficult to comply with. It was much like FMLA. It had some
additional complexities to it, but it wasn't that hard. We
thought we would go above and beyond that. In addition to
compliance with that, we proposed a few enhancements. First we
said, if the base-pay of the employee on military service is
less than what they would have received if they were with us,
we would continue to pay them that difference while they were
serving and we'd make deposits into their account. We had forms
and procedures to do that.
Second, USERRA requires the continuation of health care at
the full premium level, or 102 percent of the full premium. We
know that this amount can be significant. As this is the amount
associated with COBRA coverage when an employee leaves our
company. So, the second enhancement we had was to extend health
coverage to the employee at the same rate per month that they
would have seen if they were still working for us full time.
Third, we also made our employee assistance program
counseling available to the returning military employee, to aid
them in their return and transition back to civilian life.
The employees of Dollar Thrifty and our culture are what we
find makes the real difference for our employees going on
extended military leave, and that is something that can't be
implemented by a formal policy. It's against the cultural
backdrop that our employees choose on their own, to correspond
to coworkers that are out on military leave, post pictures in
the hallways, hold ``Good Luck'' and ``Godspeed'' going away
parties, and more important, hold the welcome back parties.
It's our managers who know and recognize what military
experience and assignments do in the way of developing an
employee and their leadership skills. An example is the case of
Marine Corporal Blake Milam, who shortly after his return to
Dollar Thrifty, applied for and received a promotion to a new
position. There are always areas of opportunity where we can do
better at Dollar Thrifty. That's the nature of a company led by
a Marine. Our CEO, Gary Paxton, who keeps demanding and raising
the bar for us to perform to. We were humbled beyond all words
for the nomination submitted by Corporal Milam. To us, we were
simply doing the right thing.
So, in closing, I'd like to paraphrase the letter that
Corporal Milam wrote on our behalf, in his nomination of our
company.
``When I got off active duty and returned to reserve status,
I already had my old job at Dollar Thrifty waiting for me. All
of my fellow employees had a welcome home party for me at work,
cake, balloons, and a huge card. I even had a department
director and a bunch of big wigs come down and shake my hand. I
had been activated on December 1, 2005 and was back to work in
November 2006. I was given two raises and a healthy profit-
share that quickly went to bills and relieved much of my
stress. Overtime was always there when I asked. My fellow
employees even took time out of their day to help me re-learn
my job. In December, I applied for a new position in the
company and was moved up to where I am now in January. It's
almost surreal to think that a year ago I was shooting and
being shot at daily. If I didn't have this job at Dollar
Thrifty, if I had to look for a job with that many bills and
that much stress and that much happening all at once, I
wouldn't be where I am today and I'm very happy where I am
today. That's why I nominated my company for the Freedom Award,
for making my transition back to the real world possible.''
Sincerely,
Blake Milam.
Thank you, Corporal Milam. We believe we were just doing
our duty.
Again, thank you for inviting me here today.
[The prepared statement of Mr. Halbrook follows:]
Prepared Statement of Richard Halbrook
Chairman Kennedy, Senator Enzi and members of the committee, I am
pleased to appear before you today. My name is Rich Halbrook, and I
currently serve as the Executive Vice President of Administration and
Human Resources for the Dollar Thrifty Automotive Group.
Dollar Thrifty Automotive Group, Inc. (DTG) is a Fortune 1000
Company headquartered in Tulsa Oklahoma. The Company's two brands,
Dollar Rent-A-Car and Thrifty Car Rental, serve value-conscious
travelers in approximately 70 countries. Dollar and Thrifty have over
800 corporate and franchised locations in the United States and Canada,
operating in virtually all of the top U.S. airport markets: both brands
operate in all of the top Canadian airport markets. The Company's more
than 8,500 employees are located mainly in North America, but global
service capabilities exist through an expanding international franchise
network.
Dollar Thrifty has been recognized for several initiatives and
services, but among these we are most proud of are the ones that point
to our integrity and support of the Armed Services and our employees in
the Armed Services. Briefly, Dollar Thrifty was named one of America's
Most Trustworthy Companies by Forbes in March 2007. We believe that
says a lot about the values we hold and our integrity. However, most
important to the topic before this committee and why we were invited
here this morning was the Distinguished Service Award we received this
year from the National Defense Transportation Association (NDTA), and
most recently, the 2007 Secretary of Defense Employer Support Freedom
Award.
Dollar Thrifty Automotive Group, Inc. was one of 15 U.S. employers
out of 1,200 nominations, to have been honored with the 2007 Secretary
of Defense Employer Support Freedom Award by the National Committee for
Employer Support of the Guard and Reserve (ESGR), an agency of the
Department of Defense.
Accepting the award on Dollar Thrifty's behalf at a special awards
dinner was Dollar Thrifty President and CEO, Gary Paxton. The
celebration took place
September 12 at the Ronald Reagan Building and International Trade
Center in Washington, DC.
Thomas F. Hall, Assistant Secretary of Defense for Reserve Affairs,
said at the event, ``In the military, the best leaders are those who
always take care of their people--and it is no different in the
civilian workplace.''
We couldn't agree more. And with that lead in, let me give you some
history about our experience with the Uniformed Services Employment and
Reemployment Rights Act, USERRA.
When presented with the requirements of the amended USERRA, our
CEO, Gary Paxton, asked that my department explore what this would mean
for DTG employees serving our country. Overall, our summary look at the
USERRA showed that we were compliant with the act.
There are a lot of details behind these basic requirements which
are contained in the 20-plus pages of the act itself, and at Dollar
Thrifty we decided to not just be compliant with the act, but to take
additional steps that would reflect our culture, which puts our people
as our No. 1 priority. These enhancements were fairly straightforward
and included:
(1) If the base pay the employee receives during their military
leave is less than the pay they would have received while continuing to
work for DTG, then DTG would make regular deposits equal to this
difference. Forms and administrative procedures were developed to
handle this aspect of the policy.
(2) USERRA requires the continuation of health care at the full
premium level or 102 percent of the full premium. We know that this
amount can be significant, as this is the amount associated with COBRA
coverage when an employee leaves our company. So the second enhancement
was to extend heath coverage to the employee at the same rate per month
that they would pay if they were still working full-time at DTG. This
is a much lower amount than the full premium called for under USERRA.
Most of our employees on leave will likely find their coverage under
the Armed Services policy more than adequate for just themselves, but
our concern here was also for family coverage situations where there
may be the need for the continuation of the Dollar Thrifty coverage.
(3) We would also make any Employee Assistance Plan counseling
available to the returning Military employee to aid them in their
transition back to civilian life.
The employees of Dollar Thrifty and our culture are what we find
makes the difference for our employees going on extended Military
leave, and that is something that can't be implemented by a formal
policy.
For several years now, DTG has taken an active stance toward our
overall culture and employee morale. We have a set of core values that
we aspire to. These values are (1) our customers, (2) our people, (3)
continuous improvement, and (4) results. To assist us in realizing
these values, we have over 150 employees that are Cultural Ambassadors.
These employees go through formal training on the basics you would
expect, such as hiring skills, new employee orientation, new employee
retention, employee recognition, and employee communications. However,
they are also trained on ``Bring on The Fun,'' a program that entails
hosting fun events to build morale and team spirit.
It is against this backdrop that our employees choose, on their
own, to correspond with co-workers on military leave, post pictures in
the hallways, hold ``Good Luck & Godspeed'' going away parties and more
importantly, ``Welcome Back'' parties.
It is our managers who know and recognize what military experience
and assignments do in the way of developing an employee and their
leadership skills. These managers in turn tend to find new assignments
and promotional opportunities for employees returning from military
services. An example is the case of Marine Corporal Blake Milam, who,
shortly after his return, applied for and received a promotion to a new
position.
There are always areas of opportunity where we can improve at DTG,
specifically in the treatment of our employees who go on military
leave, or are involved with the Reserves. That is the nature of a
company who is led by a Marine--our CEO, Gary Paxton--who demands we
keep raising the bar.
Overall, we are extremely grateful to all the men and women of our
armed services and we honor their service. Dollar Thrifty is especially
proud of those service members that are also our employees and we are
humbled beyond all words for the nomination submitted by Corporal
Milam. The resulting award from the Secretary of Defense Employer
Support Freedom Award was unexpected and certainly makes us want to
confirm that we are truly doing everything we can for these honorable
men and women. When you couple this recognition with the 2007 National
Defense Transportation Association (NDTA) Distinguished Service Award
and the 2006 ESGR Pro Patria Award, we at Dollar Thrifty are simply
overwhelmed by the attention and recognition being given to us for what
seems to us as simply ``doing the right thing.''
I believe that the hearing of this committee will also clearly
showcase the ``right thing to do'' with regards to the USERRA and our
service men and women.
In closing, permit me to return to my earlier comments on The
Freedom Award, and why we were so proud to have received it. Recipients
of this award were nominated by their employees, who voluntarily serve
in the National Guard and Reserve, and who recognized the exceptional
support their company gave them above the requirements of Federal law.
I'd like to read you now the letter that Marine Corporal Blake
Milam wrote on our behalf in his nomination of our company:
I was deployed with Weapons Co. 1st Battalion, 25th Marines,
to Fallujah, Iraq for about 8 months. I was the radio operator
for my platoon. Basically, for the Battalion, I was the voice
of ``Whiskey 3'' and for Whiskey 3, I was the voice of the
Battalion. We pretty much operated as a police force in
Fallujah.
When I got off active duty and returned to reserve status, I
already had my old job at Dollar Thrifty waiting for me. All my
fellow employees had a welcome home party for me at work--cake,
balloons and a huge card. I even had department directors and
``big wigs'' I had only heard of come down to shake my hand. I
had been activated on December 1, 2005 and was back to work in
November 2006. I was given two raises and a healthy profit
share that quickly went to bills and relieved much of my
stress. Overtime was always there when I asked. My fellow
employees even took time out of their day to help me re-learn
my job!
In December, I applied for a new position in the company and
was moved up to where I am now in January. Even now, almost a
year later, I still have people coming up to me asking, ``What
did you do over there?'' I just smile and say, ``I did my time
and came home.'' Honestly, who wants to hear all that? It's
almost surreal to think that a year ago I was shooting and
being shot at daily. If I didn't have this job at Dollar
Thrifty Automotive Group--if I had to look for a job with that
many bills and that much stress and that much happening all at
once--I wouldn't 't be where I am today. And I'm very happy
where I am today.
That's why I nominated my company for the Freedom Award . . .
for making my transition back to the real world possible.
Sincerely,
Marshall ``Blake'' Milam.
______
Thank you Corporal Milam. We were just doing our duty as well.
Our President and CEO of Dollar Thrifty, Gary Paxton, said the
following about this nomination and award, ``Dollar Thrifty is honored
to receive this prestigious award on behalf of all its employees. For
all they do for us, we want all our Guard and Reserve members to know
we will steadfastly support them should they be called to duty.''
Again, thank you for inviting me here today, and I look forward to
answering any questions any of you may have.
The Chairman. Well, thank you all very much. This has been
a very impressive panel. Where is Avis and Hertz, Mr. Halbrook?
[Laughter.]
I'll tell you, I don't rent, but I do on some occasions,
and I'll be knocking on the door there for----
Mr. Halbrook. Thank you, Senator.
The Chairman. That's extraordinary, it's an extraordinary
example. And we might write to these other companies and ask
them what they are doing and mention it. I certainly will. I'll
see if we get a little bipartisan support, just inquire on
that. It's extraordinary.
Thank you, Tammy Duckworth, again, for your service to the
country, and also for the recommendations. I think we heard
from Jack Reed about these cross communications. They shouldn't
be all that complex. We're working very closely with the
Veterans' Committee on recommendations, since we have--as we
mentioned at the opening--shared responsibility.
We thank Lieutenant Colonel Duarte for taking on and
continuing on and believing in his rights and representing
workers and then being able to inspire us. I think, as Senator
Murkowski pointed out, if this happens to one, it happens to
all of us. And you've certainly demonstrated--listening to your
story--a devotion and service to the Marines, a family that's
been dedicated, and your own perseverance, when others have
said that you didn't have the goods on it. And it's an
inspiring story and one that shouldn't have to be replicated.
We've seen the explosion of private counsel in these areas and
it's just not right. We ought to be able to try and get so that
every service man and woman has the information and the help
and the assistance and hopefully the kind of reception Mr.
Halbrook has shown.
Thank you, Lieutenant General McCarthy. We're working very
closely with your Reserve Officers Association and with the
other organizations as well. And you've got a lot of very good
suggestions and ideas. As a member of the Armed Services
Committee, I can think of some things we might be able to do
and take some of your recommendations. We'll work with those
members, Senator Reed, and we'll work with the veterans and
we'll try and not let this slip through.
We'll have maybe a few general kinds of questions. You've
been enormously helpful and it's been very important and
enormously constructive. I think our hearing has pointed out
some of the challenges and some of the problems. I think what
echoes in our ears is, Senator Murkowski's individual that had
fallen through the cracks. Lt. Colonel Duarte has fallen
through. The point that Jack Reed makes about the growth of
homelessness, and all the challenges we face. And, we see when
it can be done right and what a difference it makes.
I'm sure that your company, in terms of morale, in terms of
productivity of those service men who have come back and are
working, has expanded and increased. And the company deserves
great credit.
So, we've learned about some of the challenges and about
some of the hope. And we are going to build on those more
hopeful indicators.
Senator Murkowski, anything final you want to say before--
--
Senator Murkowski. I just also want to echo what the
Chairman has said about thanking you for your testimony. It was
great to hear Major Duckworth describe what the State of
Illinois is doing and their specific efforts.
You think about the service man who is going back into the
civilian workplace. How we can help them craft a resume that
says what they have really done? And your comments at the
beginning of your testimony, Major, about how our service
members know that lives hang in the balance if their work is
lacking in quality. None of the rest of us could ever possibly
be expected to do and yet, this service man is doing that on a
daily basis. And, we've got to figure out a way that we can
help that--help them make that transition so that credit for
what they have done is truly given.
So again, I thank you all for your efforts. Thank you.
[Additional material follows.]
ADDITIONAL MATERIAL
Prepared Statement of Senator Enzi
Thank you, Senator Kennedy, for holding this hearing today.
Employers of all sizes know that a skilled workforce is
essential to being competitive in the global economy.
Our businesses must have the workers they will need to be
competitive. Strengthening America's competitiveness requires
that students and workers of all ages have the opportunity to
gain the knowledge and the skills they will need to be
successful throughout their lives, regardless of their
background. Education and training are integral to meeting this
goal.
A substantial portion of our workforce now finds itself in
direct competition for jobs with highly motivated and often
well-educated people from around the world. We can no longer
afford to ignore that over the past 30 years, one country after
another has surpassed us in the proportion of their entering
workforce that has the equivalent of a high school diploma. We
used to have the best-educated workforce in the world, but that
is no longer true.
We must re-build, strengthen and maintain our educational
pipeline, beginning in elementary school. We need to find ways
to encourage high school students to stay in school and prepare
for and enter high-skill fields such as math, science,
engineering, health, technology and critical foreign languages.
We must also strengthen the programs that encourage and enable
citizens of all ages to enroll in postsecondary education
institutions and obtain or improve knowledge and skills. The
decisions we make about education and workforce development
will have a dramatic impact on the economy and our society for
a long time to come.
The present situation is discouraging. Every day in the
United States, 7,000 students drop out of school. We must deal
with the situation head on--we cannot allow students to
``waste'' their senior year, and graduate unprepared to enter
postsecondary education and a workforce focused on skills and
knowledge. Unless high schools are able to graduate their
students at higher rates than the 68 to 70 percent they
currently do, more than 12 million students will drop out
during the course of the next decade. The result long term will
be a loss to the Nation of $3 trillion, and as you can imagine,
even more in terms of the quality of life for those dropouts.
To remain competitive in a global economy, we cannot afford
to lose people because they do not have the education and
training they need to be successful. Thirty years ago the
United States was proud to claim 30 percent of the world's
population of college students. Today that proportion has
fallen to 14 percent and is continuing to fall.
Demographics are responsible for some of this shift--keep
in mind that if India alone educates just one-third of its
population, it will have more educated people than the total
population of the United States. We have control over whether
we continue to let so many students fall through the cracks and
out of the education and training pipeline.
To be successful in the 21st century economy we need to
challenge our high school students more, increase high school
graduation rates, reduce remedial education at the college
level, increase student retention and completion rates for
students in college, reduce barriers to adult worker
participation in postsecondary education and training. Lifetime
education and training is no longer an option, it is a
necessity--for individuals, for employers and for the economy.
Innovation provides a way for individuals to create their
own jobs or jobs for others. That is one of the primary reasons
I began my annual free Inventors Conferences in Wyoming in
2004--to encourage and provide resources to individuals to
impact the economy with their ideas. Too often, young people in
Wyoming start thinking at too early an age that they will have
to leave the State to find a good job. I offered another
suggestion--create your own product--create your own job. That
kind of mindset will encourage creativity and begin to tap the
well of good ideas so many of our State's young people have to
share. We can attract businesses, but we can grow our own new
businesses too. Good ideas generate good jobs and that is
something that will keep our kids at home and attract new
businesses to our State.
I have had terrific role models, such as Dean Kamen, speak
at my conference. I am hosting the Inventors Conference again
in Wyoming this April. We need to encourage this kind of
activity because America no longer holds the sole patent on
innovation. Inspired by our example, countries such as China,
India and South Korea have invested heavily in education,
technology and research and development. Billions of new
competitors are challenging America's economic leadership. In
2005, foreign-owned companies were a majority of the top 10
recipients of patents awarded by the U.S. Patent and Trademark
Office.
In addition, we need to look at how we address immigration.
Many people are concerned about illegal immigration and the
impact legal immigration could have on their employment. Many
employers have a need for trained and educated employees and
are unable to fill these positions with domestic employees. The
companies are often faced with the choice of hiring foreign
workers or considering moving their operations overseas.
In the high tech sector and across the Nation, I believe
employers must be a partner in ensuring that employees are in
the United States legally and holding the proper visas and work
permit. It is clear, however, that the current system is not
working. The complicated and overly burdensome process for
visas and permanent residency cards serves as a disincentive to
both the employer and the employee.
Initial efforts have been taken to address the problems
with the H-1B visa process and immigration in general but no
final action has been set. Congress has considered legislation
that specifically addresses foreign workers with masters or
higher degrees from accredited U.S. universities to return or
stay in the United States. I believe we should continue to work
on this issue in the context of larger immigration reform as
well in the context of our international competitiveness.
While we work to make our domestic workforce better trained
to fill high-tech jobs, we must ensure that our high-tech
companies remain in the United States.
We have our work cut out for us to meet the challenge of
ensuring that America expands its competitive edge. We need a
plan. We need to ensure opportunities are available to all
Americans, because our future depends on widely available and
extensive knowledge and training and a commitment to
excellence. Strong partnerships and alignment among K-12
schools, institutions of higher education, business and
government will help us meet the needs.
In the HELP Committee, we are using this opportunity to
shape policy and strengthen the education and training
pipeline. Through the reauthorization of Head Start, No Child
Left Behind, the Higher Education Act and the Workforce
Investment Act (WIA) we can make sure that every individual has
access to a lifetime of education and training opportunities
that provide the knowledge and skills they need to be
successful and that our employers need to remain competitive.
As important as education is to the knowledge and skills of
our workforce, I want to emphasize the need to reauthorize the
Workforce Investment Act. It strengthens connections with
economic development, links training to the skill needs of real
jobs, and supports greater business engagement.
In a global economy where innovation and technology have
created an increasing demand for skilled workers, access to
training that prepares workers to meet these challenges is
essential. The skills needed to keep current with the
requirements of the 21st century workplace are changing at an
ever increasing pace. Workforce development is not only hiring
the right worker, but knowing how to help them keep current
with escalating skill requirements and advances in their
occupations. By helping low-wage workers advance in their jobs,
entry level jobs will open up and more opportunities will be
created. Our efforts in reauthorizing the Workforce Investment
Act must ensure that it achieves this goal and is relevant to
both employers and workers.
I look forward to hearing the contribution of our witness
to this vital conversation.
Prepared Statement of Senator Murray
Thank you, Mr. Chairman, for calling today's hearing on an
issue that's vitally important to the men and women who serve
in our National Guard and Reserve. Before I go on, I want to
thank these brave heroes for their tremendous service to our
country. They continue to play a very important role in our
Nation's security here at home and abroad. They step in when
local communities need them most, and they have performed
admirably under enormous pressure in the middle of a civil war
in Iraq. We owe them a debt of gratitude.
As Veterans' Day approaches, I think it's very appropriate
that we examine whether we're keeping our promise to our
returning heroes. Part of that promise is making sure our Guard
and Reservists transition back to the civilian workforce
successfully when their service is complete.
Thirteen years ago, Congress enacted USERRA to protect the
employment rights of returning veterans. But as the war on
terror has escalated, so has the mission of our Nation's Guard
and Reserve. And the challenges they face are more demanding
than ever. It's vital that we ensure the system is working for
them, and that's why we're here today.
Unfortunately, I continue to hear countless stories from
veterans in my home State of Washington who have struggled to
find good, family-wage jobs, and the training they need to
secure them. Too many veterans are struggling to support their
families after demobilization. That's just not right--yet the
problem isn't getting smaller.
In my home State of Washington:
Nearly 8,000 Guard and Reservists are currently
serving;
More than 5,500 have served in Afghanistan and
Iraq since the war began;
And we've recently heard that almost 2,800 Guard
members are scheduled to deploy in 2008.
Washington, like many other States, is responding to these
obstacles with innovative programs, such as the Hire-A-Vet
Challenge, which encourages businesses to hire returning
National Guard and Reservists.
But more needs to be done.
After more than a decade of having USERRA on the books, I'm
frustrated that too many veterans are still running into
obstacles when seeking protection.
Too many are unsure of their employment and re-
employment rights under this law.
Too many employers are unsure of their
responsibilities under the law.
And those who do exercise their rights are still
facing unnecessary delays and a complicated bureaucracy.
We have to find a way to make this complex system as easy
to navigate as possible for these service members.
First, we have to do a better job of outreach and education
for veterans and their employers. To make the system
successful, both groups have to understand their rights and
responsibilities.
We also have to make the system more user-friendly.
Veterans who seek to exercise their rights should never run
into a closed door or be shut down by a complicated
bureaucracy. I know we have made some improvements over the
years, but we have to find a way to simplify the system and
make it work for service members whose rights have been
violated. I'm looking forward to hearing recommendations from
our witnesses about how we can make this happen.
Mr. Chairman, as I've said many times before, I believe
that how we treat our veterans when they come home says a lot
about the character of our Nation. These brave men and women
who face dangerous and stressful situations on the battlefield
and here at home shouldn't have to worry about their jobs while
they're away. And they're counting on their government to keep
its promise.
So we have a big mission, Mr. Chairman, and I look forward
to hearing from our witnesses about how we can make the
transition from soldier to citizen a smoother one.
U.S. Department of Labor,
Washington, DC. 20210,
May 2, 2008.
Hon. Edward M. Kennedy, Chairman,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC. 20510.
Dear Mr. Chairman: Thank you for the opportunity to testify before
the Senate Health, Education, Labor, and Pensions Committee hearing on
``Protecting the Employment Rights of Those who Protect the United
States,'' held on November 8, 2007.
The responses to the committee's additional questions for the
record are enclosed.
Thank you for your continued support of the employment rights of
our Nation's service members and veterans.
Sincerely,
Charles S. Ciccolella,
Assistant Secretary for Veterans' Employment
and Training.
______
Response to Questions of Senator Kennedy, Senator Enzi, and Senator
Murray by Charles S. Ciccolella
QUESTIONS OF SENATOR KENNEDY
Question 1. What do you believe are the main reasons why 44 percent
of Reserve Component members who filed USERRA complaints with DOL VETS
said they were dissatisfied with the assistance they received?
What are you doing and what will you commit to doing to improve
service members' satisfaction with the assistance they receive from DOL
VETS with their USERRA complaints?
Answer 1. We share your concern over the dissatisfaction rate
reported by Reservists who responded to the Department of Defense (DOD)
Status of Forces Survey, and asked DOD for additional information
regarding those responses. According to DOD, two-thirds of those who
reported dissatisfaction with the handling of their USERRA complaints
also said that their claims were denied or rejected; 9 percent reported
that their complaints was resolved in their favor. On the other hand,
four-fifths (80 percent) of those who were satisfied with the handling
of their formal USERRA complaints reported their complaints were
resolved in their favor, and just 4 percent reported their complaints
were denied or rejected.
Individuals who file formal complaints, by definition, believe
their complaints have merit. It therefore is not surprising that the
majority of dissatisfied claimants are individuals whose claims are
denied. This finding underscores the importance of better educating
claimants on the provisions of the law and engaging them as active
participants during USERRA investigations.
VETS recognizes the importance of striving constantly to improve
the services it offers to service members and others. To that end, VETS
began conducting regional training conferences for investigators in
every VETS region in fiscal year 2007 and these efforts continue in
fiscal year 2008. In addition, VETS has incorporated customer service
techniques into these training conferences and is exploring including
such techniques in its existing new investigator 2-week classroom
training curriculum.
VETS is also aggressively pursuing steps to reduce the time it
takes to investigate, resolve, and close cases. While nearly three-
quarters of USERRA cases are closed within 60 days or less, some cases
still take too long to process. To address this, VETS has implemented
additional supervisory control of investigations, with Regional
Administrators and Senior Investigators now being made aware of all
cases in their regions that have been open for over 90 days, as well as
cases where a claimant has requested referral to either the Department
of Justice (DOJ) or the Office of the Special Counsel (OSC). In
addition, the Department has funded an independent evaluation of the
cost effectiveness of USERRA's investigation process that will be
completed in fiscal year 2009. Following an independent analysis of
each step of the investigatory process, results of the evaluation
should help VETS improve the quality and timeliness of its USERRA case
management.
Question 2. What steps are you taking to reduce the bureaucratic
delays for investigating, resolving, and referring USERRA complaints
that the Government Accountability Office (GAO) has identified,
particularly when cases are referred to the Office of Special Counsel
or the Attorney General?
Answer 2. As previously reported to your office, of the 1,239 cases
that were both received and closed by VETS in fiscal year 2006, nearly
three-fourths (72 percent) were closed in 60 days or less, and only 6
percent took over 120 days. We are aggressively pursuing steps to
reduce delays that occur in that minority of cases.
Each month, VETS' Regional Administrators and Senior Investigators
are made aware of those cases in their region that have been open for
over 90 days, as well as cases where a claimant has requested referral
to either the Department of Justice (DOJ) or the Office of the Special
Counsel (OSC). In February 2008, VETS implemented an updated USERRA
Operations Manual that clarifies procedures for investigating,
attempting to resolve and referring USERRA cases. Regional training
covering these procedures is underway for all investigators, and
distance learning modules are under development. In addition, results
from the independent evaluation noted above will support VETS' efforts.
It is important to note that the causes for delays are not solely
bureaucratic. For example, our investigators occasionally are presented
with an opportunity to engage in negotiations with the employer during
the referral process, which sometimes has lengthened that process. We
have recently clarified to our investigators, though, that once a
claimant asks for referral, any continued efforts to resolve the claim
should take place concurrently with processing the referral, and should
in no way slow the referral process. In fact, such efforts are to be
undertaken only under very strict deadlines. Both DOJ and OSC have
indicated that they agree with that strategy.
Question 3. Please describe the appropriations and resources
dedicated to the enforcement of USERRA within DOL VETS and the Office
of the Solicitor, including the number of full-time employees (FTEs)
assigned to USERRA enforcement, over the past 8 years.
Does the fiscal year 2007 appropriations level enable the
Department of Labor to effectively and expeditiously investigate,
resolve, and refer USERRA cases?
Do you believe that the Department needs additional resources to do
so, and, if so, how much more funding does the Department need for
USERRA enforcement?
Would additional funding help the Department to investigate,
resolve, and refer USERRA cases quickly?
Answer 3. VETS maintains a corps of over 100 trained investigators
in our Regional and State offices throughout the country. These
investigators are responsible for USERRA as well as other issues
related to veterans' employment. In addition to our investigators, VETS
has a team of specialists at the National Office who are dedicated to
compliance and investigations activities, and in 2006 we added six
Senior Investigators--one in each Region--who are dedicated exclusively
to compliance and investigations.
The Office of the Solicitor offers a nationwide network of
attorneys who contribute to the Labor Department's USERRA enforcement
efforts. More than 200 agency attorneys in SOL's 14 regional and branch
offices provide trial litigation services and advice under most Labor
Department administered Federal laws. Because the Department
administers well over 100 laws, a regional attorney's USERRA workload
at any given time generally will be relatively small; however, the
regional attorneys' litigation expertise enables them to provide
substantial support to VETS' investigations. At SOL's national office,
a six-person group of attorneys in the Employment and Training Legal
Services Division provides overall advice and guidance on USERRA
matters to VETS and to SOL's regional staff as appropriate.
While the overall number of USERRA cases handled by SOL attorneys
is small compared to the total number of cases that arise in all other
DOL-administered programs, SOL has taken care to develop a cadre of
individuals within theorganization who retain extensive USERRA
experience and knowledge. This includes a supervisory counsel for
USERRA matters in the national office, and designated experts in each
regional office.
The following table reflects VETS and SOL full time equivalent and
other resources dedicated to USERRA activities since fiscal year 2000.
----------------------------------------------------------------------------------------------------------------
VETS SOL
--------------------------------------------
Travel and other
Fiscal year FTE devoted USERRA costs (FTE FTE devoted
to USERRA cost not to USERRA
included)
----------------------------------------------------------------------------------------------------------------
FY 2000............................................................ 69 $1,285,906 1.9
FY 2001............................................................ 62 $1,196,849 2
FY 2002............................................................ 80 $1,592,097 3.6
FY 2003............................................................ 78 $1,567,532 4.2
FY 2004............................................................ 101 $2,085,581 4.2
FY 2005............................................................ 106 $2,329,049 6.8
FY 2006............................................................ 89 $1,628,471 4.3
FY 2007............................................................ 85 $2,327,970 3.7
----------------------------------------------------------------------------------------------------------------
The resources available are sufficient for the effective
administration of our USERRA compliance and investigations program.
However, the Department will not hesitate to allocate additional
resources to USERRA, should that become necessary.
Question 4. Prior to the hearing, members of my staff went to the
Department of Labor to review USERRA cases files. They found that some
service members were not given an opportunity to review or respond to
employers' allegations before the DOL closed their cases and informed
the service members that their cases lacked merit.
a. Does the Department of Labor require its investigators to give
each service member an opportunity to review and rebut any factual
allegations made by his or her employer before the case is determined
to lack merit?
b. What is the agency doing to ensure that every veteran is
afforded an opportunity to present his or her side of the story?
c. How often does the Department have its investigators interview
the witnesses of employers at work sites, rather than accepting
employers' factual allegations at face value?
d. Will the Department commit to increasing the frequency by which
its investigators interview witnesses at work sites?
Answer 4. Labor Department investigators have been instructed that
claimants are to be told about employer allegations that might impact
the outcome of their case, and that they are to be given the
opportunity to rebut those allegations. We have reiterated and
clarified this important point to our investigative staff in the 2008
USERRA Operations Manual, which VETS released in February 2008. The new
Operations Manual now states that ``the VETS investigator should
contact the claimant to describe the employer's point of view. The
claimant must be informed of and given the opportunity to rebut any
relevant allegation that may affect the outcome of his/her case.''
However, a limited amount of employer-provided information, such as
payroll and personnel records of comparable employees, is not made
available to claimants, and claimants are not provided with information
that would disclose the identity of informants. Investigators are
receiving training on the new manual.
VETS does not accept at face value allegations made by either
employers or claimants. Rather, our investigators seek out facts and
evidence that are relevant to the USERRA issues that are alleged in a
claim. The Department emphasizes in-person interviews and fact
gathering, particularly in situations in which an investigator has
doubts about the credibility of an individual or the evidence that is
provided. Onsite interviews are conducted whenever deemed necessary by
the VETS investigator. The USERRA Operations Manual is very clear that
face-to-face interviews and evidence collection are important tools
available to our investigators. Specifically, the manual states, ``An
onsite investigation should be conducted when the investigator doubts
the veracity of information provided by the employer or otherwise
believes an onsite investigation would be beneficial.'' In addition,
supervisors or Senior Investigators conduct open case reviews of all
ongoing investigations. Any doubts about the reliability of information
provided by an employer that surfaced during that review could lead to
an onsite investigation.
Question 5. The February 2007 GAO report found that the Department
of Labor, Department of Defense, and Office of Special Counsel do not
have a consistent way to record, analyze, or report the disability-
related USERRA cases.
Since the report, have these agencies implemented a uniform system
for recording, analyzing, and reporting disability-related complaints?
What are the agencies doing to ensure that accurate numbers of
disability claims are reported to Congress?
If this system is not fully in place now, then when will this
process be completed?
Answer 5. Cases involving disability-related issues under USERRA
arise in the context of obtaining the appropriate reemployment
position, and the employer's obligation to provide ``reasonable
accommodations.'' USERRA provides that employers must provide
reasonable accommodations to allow service members who incurred a
disability in service to be promptly reinstated in the positions of
seniority, status, and rate of pay they otherwise would have attained
had they remained continuously employed, or in some cases the nearest
approximate position.
Since GAO published its February 2007 report, VETS has undertaken
measures to ensure that cases involving reasonable accommodations for
service-incurred disabilities are properly recorded in its USERRA
Information Management System (UIMS). To that end, our investigators
have received additional training to ensure that those issues are
properly identified, and managers and Senior Investigators in each
region review every case, including those involving service-incurred
disabilities, to ensure proper case processing and issue
identification.
In addition, VETS and DOD staff have worked closely together to
ensure that their systems of reporting data on USERRA cases involving
reasonable accommodations for service-incurred disabilities are
compatible, and have cross-walked codes used by our respective agencies
to identify other issues as an initial step toward having uniform codes
for all USERRA issues. We expect this process to be complete in time
for the USERRA fiscal year 2008 Annual Report to Congress.
OSC and DOJ involvement with USERRA cases is limited to a
relatively small number of referrals they receive each year from VETS.
The USERRA issues, including disability issues, involved in the cases
they receive from VETS will have already been identified.
Question 6. How many full-time employees do DOL VETS and the Office
of the Solicitor dedicate to resolving the complaints of disabled
service members?
What specific training and resources do those employees receive to
enhance their ability to assist disabled service members?
Answer 6. All VETS investigators are trained to identify USERRA
issues involving reasonable accommodations of disabilities;
consequently no DOL employees are specifically dedicated to resolving
USERRA complaints of disabled service members. As discussed in the
previous response, USERRA cases involving disability-related issues
arise in the context of obtaining the appropriate reemployment
position, and the employer's obligation to provide ``reasonable
accommodations.'' A significant portion of the 2-week classroom
training provided to VETS investigators involves the provisions of
USERRA with regard to reasonable accommodation of disabilities and the
provisions of the Americans with Disabilities Act.
Question 7. The Secretary of Labor, in consultation with the
Attorney General and the Office of Special Counsel, prepares and
transmits a USERRA annual report to Congress on the number of
complaints filed, the nature and status of each complaint, and if any
patterns of violation are apparent. The report for fiscal year 2006 was
due to Congress on February 1, 2007. To date, the report has not yet
been filed.
Why is the Department of Labor's Annual Report to Congress over 9
months late? When will the Department transmit this report to Congress?
What will the Department do in the future in order to prevent such
delays in its reporting?
Answer 7. The fiscal year 2006 USERRA Annual Report was transmitted
to Congress on February 5, 2008. We are pleased that some of the
reporting issues identified by the GAO were addressed in the 2006
report, and that the fiscal year 2007 report will fully address GAO's
concerns with the reporting. Because of the lag time involved in
finalizing our own data for the report, and of coordinating the
submissions of three other agencies, we ask that the Congress consider
changing the due date to June 1 of each year.
Question 8. Of the nearly 1,400 complaints the Department of Labor
received in 2006, it referred only 24 cases--less than 2 percent--to
other agencies for prosecution that year.
Why is the Department referring so few cases for prosecution each
year? With tens of thousands of Reserve Component members experiencing
potential USERRA violations, why are only dozens of cases being
referred for litigation in Federal court and before the Merit Systems
Protection Board?
Answer 8. As reported in our fiscal year 2006 USERRA Annual Report,
DOL referred 81 cases to DOJ and 11 to OSC. Two factors significantly
influence the number of cases that the Labor Department refers to DOD
and OSC each year. First, cases are referred only if the Department is
unable to achieve a resolution that is acceptable to the parties. VETS'
goal, of course, is to successfully resolve USERRA issues between the
service member and the employer without the need for litigation because
such resolutions are more likely to preserve the claimant's employment
relationship with his or her employer.
Of the 1,377 cases it closed in fiscal year 2006, 414 (30 percent)
were successfully resolved by VETS in the claimant's favor (claim
granted or settled). The remaining 70 percent were either withdrawn by
the claimant, administratively closed, found to have no merit, or were
referred to DOJ or OSC. OSC's reported successful resolution rate for
cases it received under the demonstration project in fiscal year 2006
was 27 percent, roughly comparable with VETS' success rate for that
year. The second limiting factor is that claimants--not the
government--control whether their claims are withdrawn, referred for
prosecution, or pursued through private counsel.
Question 9. A recent GAO report found multiple inaccuracies in the
USERRA data that the Department of Labor reported to Congress. The
report found that (1) DOL's Annual Report inflated the number of claims
it had completed, and (2) data on the outcomes of claims was ``not
reliable.''
What has the Department of Labor done to address these reporting
problems? How can you reassure this committee that the data the
Department is sending to Congress is accurate?
Answer 9. VETS takes its reporting responsibilities very seriously.
In response to the findings and recommendations in GAO-07-907, VETS
added a number of steps to improve the accuracy of its claim numbers
and claim outcomes data. The inaccuracies GAO noted in claim numbers
stemmed largely from since-discontinued administrative practices that
required single claims to be counted more than once in certain
circumstances. For example, if, after opening a case in one state, VETS
learned that the employer was located in a second State, the case file
would be closed administratively in the filing State and reopened in
the employer's State. Beginning with the USERRA fiscal year 2006 Annual
Report to Congress, VETS eliminated this source of duplication by
counting such openings and reopenings as a single case. As a result,
the fiscal year 2006 report includes nine fewer cases than would have
otherwise been reported.
Another source of duplication identified by GAO is where a case is
closed and subsequently reopened because the claimant provided new and
material evidence on the original issues of the case. Beginning with
the fiscal year 2007 USERRA Annual Report, VETS will not count such
reopened cases as unique cases, but will identify them as cases
reopened from previous years. We believe these two modifications in
reporting address GAO's concerns regarding the number of cases reported
by VETS.
VETS also has taken two important steps to address GAO's concerns
about case outcomes data. First, VETS is emphasizing as part of its
investigatory training the importance of properly identifying and
reporting case outcomes. This training is underway. Second, VETS has
increased its oversight of USERRA cases by supervisors and senior
investigators so as to ensure that correct case outcomes are
appropriately recorded in the USERRA database and that reports
generated from the database are accurate.
Question 10. During the hearing, you discussed the case of Robert
Traut, which has been open at DOL VETS for 7 years, and stated that the
case would be referred to the Office of Special Counsel as soon as
possible. Has this case been referred yet?
If the Department, has not yet referred the case, when will the
Department refer the case, and what steps is it taking to do so?
What could the Department have done differently to process Traut's
case faster, and what actions will you take to ensure that cases like
Mr. Traut's do not languish for years and years at the Department of
Labor?
Answer 10. The Department of Labor referred the Traut case to the
Office of Special Counsel on November 16, 2007.
VETS agrees that Mr. Traut's case should have been handled more
expeditiously and has taken steps to ensure USERRA cases are handled as
promptly and efficiently as possible. Perhaps the most important lesson
learned from the Traut case is the importance of close supervisory
oversight of those who investigate USERRA allegations. With that in
mind, VETS has created a cadre of senior investigators whose primary
responsibility is to oversee the case investigation and referral
process in their respective regions, paying particular attention to
requests for referrals that have been pending for more than 15 days. In
addition, with the February 2008 implementation of the new USERRA
Operations Manual, VETS is requiring higher-level review of every
single USERRA case before the agency issues a closing letter. VETS
believes that these two common-sense improvements in case processing
will help ensure that USERRA claims receive the attention they deserve.
Finally, a key question of the independent study that will begin later
this fiscal year is what can be done to ``error-proof'' the
investigative process.
Question 11. Only 23 percent of Reserve Component members who
report reemployment problems seek some type of assistance, including
from DOL VETS. In your opinion, why are so few service members
contacting DOL VETS for assistance?
Do you agree that some service members do not seek assistance from
DOL VETS because they have heard about the delays in having their cases
processed?
Answer 11. There are a number of reasons that not all service
members who report having reemployment problems seek assistance from
VETS. In many cases, they may not want to be seen as ``causing
problems'' for their employer or they may not opt for help from the
government because they are ready to move on to other employment
opportunities. It is also likely that some have heard that looking for
help from the Federal Government can be time consuming. Others may
elect to pursue their statutory rights through private counsel and
private litigation. In any event, it is important that service members
retain confidence in the government's ability to intervene, as
appropriate, on their behalf when USERRA rights have been violated. It
is therefore imperative that DOL and our partners at ESGR, DOJ and OSC
execute our respective USERRA responsibilities effectively, and that we
all consistently convey this message to service members: ``Welcome
home! We're here to help!''
Additionally, we find that DOD's Employment Support for the Guard
and Reserve (ESGR) provides USERRA assistance to thousands of service
members each year and much of the time they are able to address
employment and reemployment issues without requiring service members to
file a formal complaint with VETS. As a result of the assistance that
ESGR provides, only a fraction of USERRA issues become claims filed by
service members through VETS.
QUESTION OF SENATOR ENZI
Question 1. Some of the written testimony submitted for this
hearing relates a personal experience wherein a DOL-VETS ``program
assistant'' informed a veteran that he had no USERRA claim because he
``did not hear someone from [his company] tell (him) he was terminated
for military reasons,'' Is this the practice of VETS? What kind of
record would exist of such an interaction?
Answer 1. Such a response would certainly be contrary to the
training VETS provides to its investigators, and contrary to our
procedures for handling veterans' concerns regarding USERRA. If such an
interaction occurred during a case investigation, it would be required
to be documented in the case file. The USERRA Operations Manual clearly
states, ``All VETS contacts and attempted contacts with the claimant,
the employer, the military unit, and all other persons must be
completely documented and included in the case file.'' On the other
hand, if the interaction occurred when VETS was providing informal
technical assistance to an individual who had not filed a complaint--
something VETS does thousands of times each year--there may be no
record of the interaction.
QUESTIONS OF SENATOR MURRAY
Question 1. In their written testimony, GAO reported that some
claims are taking close to 2 years to process in their entirety. Why
are USERRA claims taking so long to resolve at DOD, DOL, and OSC? What
can each of your agencies do to make this process more efficient and
effective for veterans?
Answer 1. The Veterans' Employment and Training Service (VETS) is
committed to providing the best possible service to the public in
carrying out its investigative responsibilities under USERRA. Our
primary goal is to secure for our service men and women all their legal
entitlements and we are constantly looking for ways to do so more
expeditiously. While some USERRA claims take longer to process than
others, the average claim is processed and closed within 53 days.
Actions described in 1.b, below, will be evaluated by independent
process experts later this year. VETS is soliciting recommendations of
changes to the investigative process that are expected to improve
quality, timeliness and cost effectiveness.
There are several factors that can lengthen the time it takes VETS
to fulfill its obligations with respect to a USERRA claim. Sometimes
the claimant may become unable (or unwilling) to participate in the
investigation for a period of time. For example, the claimant might be
called to active duty and deployed and cannot be contacted, although
the increased availability of e-mails and cell phones has improved our
ability to communicate with such claimants. An employer who is
uncooperative can also cause delays in processing claims. Delays can
also occur during the referral process, if the Solicitor's Office
requests additional investigation in order to support a litigation
recommendation.
There are some situations in which VETS' ability to expedite the
USERRA claim process is limited or nonexistent. For example, where the
employer is a single individual and that individual is not available
for legitimate reasons, delays in communicating with the employer are
unavoidable. Similarly, where the claimant is unable or unwilling to
participate in the investigation, the investigator's ability to move
forward may be lost.
VETS has been taking aggressive steps that will reduce the
processing times for claims received by the agency. In February 2008,
we implemented a new Operations Manual and updated our Quality
Assurance Review process. Extensive investigator training on the Manual
is now underway through regional training conferences and new online
training will begin this year. Items contained in the Operations Manual
and the training programs include investigative tools that can lead to
quicker resolution of USERRA claims.
Investigators are encouraged to consider requesting subpoenas at an
earlier point in cases where an employer is reluctant to provide
documents or witnesses. Onsite investigations, witness interviews, and
case resolution conferences are encouraged to expedite investigations.
Investigators are now expected to complete referral memorandums within
15 working days after the claimant requests the referral. In addition,
we have recently clarified to our investigators that once a claimant
asks for referral, any continued efforts to resolve the claim should
take place concurrently with processing the referral, and should in no
way slow the referral process. With respect to claims filed against
Federal employers, the responsible headquarters office of the agency
involved now receives a copy of the VETS investigator's opening letter.
In 2006, VETS established a Senior Investigator (SI) position in
each of its six Federal regions. The SI helps investigators deal with
difficult employers and claimants, provides a second set of eyes on
investigators' cases, and assists the referral process. The SI or the
investigator's next-level supervisor conducts a review of open claims
at the 45-day mark. If the claim remains open after 60 days, a more
detailed review is conducted by the regional office. After 90 days, the
SI determines what is needed to finalize the investigation. In
addition, the SI is responsible for taking appropriate steps to resolve
requests for referral that have been pending for more than 30 days.
VETS continues to work to improve communications between all
partners involved in USERRA enforcement. We have already made relevant
data from the USERRA Information Management System available to the
DOD, OSC and DOJ, and are moving to more electronic case management.
When this initiative is completed, users from each agency will have
immediate access to information on the status of claims moving through
the referral process.
Question 2. We know as the war grows, so will the number of
returning veterans who may need USERRA protection, resulting in a much
greater case load than DOL, DOD, DOJ, OSC are currently handling. How
can your agencies work proactively to prevent the need for USERRA
claims in the future?
Answer 2. We are optimistic that the aggressive outreach program
conducted by DOL's VETS and DOD's ESGR will help employers properly
deal with these reemployment issues. As more employees and employers
understand their respective rights and obligations under the statute,
we believe that USERRA violations will be reduced. However, Reserve and
National Guard deployments have increased in both duration and
frequency, and we are very mindful of the increased complexity of
USERRA cases.
We are vigilant in our administration of USERRA, recognizing that
many workplaces are dealing with reemployment rights for the first
time. We resolve many potential disputes by providing timely education
and guidance to service members, employers, and other interested
parties as to the requirements of the law. However, when we receive a
USERRA complaint, we thoroughly and promptly investigate to ensure
compliance with the law.
VETS outreach activities are discussed in response to Question 5
below.
Question 3. In Mr. Bloch's testimony he claims that granting the
OSC exclusive jurisdiction over Federal sector USERRA cases greatly
enhance the efficiency of with which Federal sector cases could be
handled.
a. If OSC were allowed to have sole jurisdiction over Federal
sector claims, do you think that veterans who are not Federal employees
would perceive that they are being treated differently than their
counterparts?
b. In your opinion, how would such a change impact the larger
USERRA system?
Answer 3. Segmenting USERRA complaint filing and investigations
based on whether the service members' employer is Federal or private
sector is confusing and results in at least the perception of disparate
treatment. We believe that a single agency needs to have visibility
over the entire USERRA program, so that veterans know exactly where to
go for help. DOL is in a position to do exactly that. Helping veterans
and service members transition to civilian employment is VETS' primary
mission. We offer a holistic approach to assisting veterans by helping
those who want our assistance resolving a USERRA dispute with their
employer as well as those who decide not to return to their previous
employer and instead seek other employment or training opportunities.
We have Veterans' Employment Specialists in every state in the country,
and VETS-funded Disabled Veterans Opportunity Specialists (DVOPs) and
Local Veterans' Employment Representatives (LVERs) are located at One-
Stop Career Centers in communities across the Nation. VETS has made
significant investments in technology, so that electronically filed
claims go directly to the appropriate field or regional offices through
its UMIS system. This leads to reduced processing time.
Furthermore, VETS' and OSC's success in resolving USERRA cases is
comparable. In fiscal year 2006, 30 percent of VETS' USERRA cases were
successfully resolved and the remaining 70 percent were either
withdrawn by the claimant, administratively closed, found to have no
merit, or were referred to DOJ or OSC. OSC's reported successful
resolution rate for fiscal year 2006 was 27 percent, roughly comparable
with VETS reported success rate for that year.
Question 4. In your opinion, does the referral process hinder DOL's
ability to resolve cases efficiently? If DOL had the authority to
litigate cases through its Solicitor's office, would claims be resolved
faster?
Answer 4. The referral process does not hinder DOL's ability to
resolve cases efficiently. The most important reason is that VETS
resolves the vast majority of USERRA problems before service members
ever ask to have their cases referred. Over the last 10\1/2\ years, for
example, VETS has resolved without referrals 91 percent of USERRA cases
that involve Federal agency employers. Over the same time period, VETS
also resolved 83 percent of meritorious cases in the Federal sector
within 90 days. While VETS constantly strives to resolve more cases
more quickly, we do not believe that the referral process significantly
impedes our ability to succeed.
Question 5. It's tough to help veterans get the protection they
need and to help employers abide by the law when they don't know their
rights and responsibilities. I consistently hear from National Guard
and Reserve members that employers are hesitant to hire them because
the employer fears that they will be mobilized.
5a. What is DOL doing to ensure that employers understand their
responsibilities under USERRA? 5b. Has DOL made efforts beyond
enforcement to encourage employers to hire veterans? 5c. What more
needs to be done and how do you plan to accomplish it?
Answer 5a. VETS recognizes that most disputes arising under USERRA
result from misunderstandings of the law and its requirements with
respect to duties and responsibilities. Accordingly, we have engaged in
an extensive public outreach program and, since 9/11, have briefed or
provided technical assistance to more than 500,000 individuals
nationwide. VETS national and regional staff have briefed deploying and
returning military units, including members of the National Guard and
Reserve, active duty military, and military personnel who are
transitioning to civilian life. In addition, with our national staff,
we have briefed State Chambers of Commerce, State Bar associations,
professional associations, conducted webcasts, telephone and radio
interviews and briefings, and national televised information sessions.
Our USERRA briefings are now a component of instruction at the U.S.
Army Judge Advocate General (JAG) School in Charlottesville, Virginia,
and we hope to expand that program to other service branches' JAGs as
well.
The final USERRA regulations, now codified at 20 CFR 1002.1-
1002.314, are a very important and effective tool to ensure that
employees and employers understand their rights and responsibilities
under USERRA. Those regulations are highly regarded by stakeholders,
and written in ``plain English'' in an easy-to-read question-and-answer
format. The regulations are intended to answer any questions employers
and employees alike may have about their respective duties and rights
under the law, and we believe they offer the single best tutorial on
the law. In addition, our USERRA elaws Advisor, available at http://
www.dol.gov/elaws/userra.htm, is an interactive Web site available 24/7
to assist both servicemembers and employers understand their rights and
responsibilities under the law. This Web site receives an average of
over 8,000 visits per month and allows servicemembers to determine if
they appear to have a valid complaint and to file that complaint
electronically.
Word of our USERRA outreach is being spread throughout employer and
professional communities, and we are receiving a greatly increasing
volume of requests for our national and field staff to address those
groups nationwide.
5b. In 2004, VETS launched a national outreach program called
HireVetsFirst to encourage more employers to hire veterans. With the
Web site, www.hirevetsfirst.gov, as its cornerstone, VETS has targeted
corporate executives, small businesses and human resources managers to
connect them with veterans seeking employment, especially those
returning from Iraq and Afghanistan. Additionally, VETS started a
program to specially help wounded and injured veterans transition back
to the civilian sector. Recovery Assistance Employment Lifelines, or
REALifelines, has trained coordinators that work with the service
member during their recovery process, and coordinate with local
employers when an injured service member returns home to begin his or
her civilian life.
5c. VETS is continuing to seek new opportunities and avenues to
have employers and veterans get together. Last year, VETS coordinated
over 100 veteran-only job fairs with the State workforce system and
staged a nationwide blitz surrounding the Veterans Day remembrance to
raise the profile of veterans' employment. Nearly 30,000 veterans and
transitioning service members were greeted by over 4,000 employers
during this period of time. Additionally, VETS is co-branding veteran-
only job fairs with private vendors to further enhance opportunities
for veterans. Last year over 40,000 veterans attended at least one of
110 such job fairs. This year over 200 private vendor job fairs are
scheduled as well as additional events staged by the various State
workforce systems.
Question 6. I understand that DOL and DOD have been working
together to address the data compatibility concerns that GAO raised
concerning common complaint categories for USERRA claims and that we
can expect a pilot test of this new program in 2008. Is that effort
still on track for next year?
Answer 6. Yes, this effort is on track. VETS and DOD have reviewed
the complaint categories, or issue codes, used by each agency and have
developed a crosswalk that identifies, for each agency's USERRA issue
codes, the related section of the USERRA Regulations and the U.S. Code.
The agencies are now assessing the information collected by each agency
and VETS' fiscal year 2007 USERRA Annual Report will report the issues
involved in each agency's cases in common categories.
______
Reserve Officers Association,
Washington, DC. 20002,
March 5, 2008.
Hon. Edward M. Kennedy, Chairman,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC. 20510-6300.
Dear Chairman Kennedy: Thank you for the opportunity to testify
before the Committee on Health, Education, Labor, and Pensions on the
Uniformed Services Employment and Reemployment Rights Act (USERRA) and
the agencies that are responsible for enforcing this law. Attached are
the follow-up answers to the additional questions for the record that
were requested.
Sincerely,
Dennis M. McCarthy,
Lieutenant General, USMC (Ret),
Executive Director.
______
Response to Questions of Senator Kennedy by Lieutenant General Dennis
M. McCarthy, USMC (Ret.)
Question 1. Have you noticed an increase in reemployment problems
among your members? What types of reemployment issues have grown in
recent years, and what types of issues present the most difficult to
resolve?
Answer 1. Yes. We have noted a large increase after September 11,
2001, and that number has remained high ever since. The Reserve
Officers Association retains a lawyer to address reemployment/
employment problems, Captain Samuel F. Wright, JAGC, USN (Ret.). ROA
have seen an up-tick in the number of phone calls and
e-mails that ROA has been receiving. Captain Wright reports that he
receives, on average, three to four e-mails or phone calls a day with
requests for assistance or questions regarding USERRA.
In addition to commissioned officers, a larger number of queries
come from enlisted Reservists and National Guard members. Captain
Wright also hears from attorneys for both USERRA claimants and for
employers; employers; human relations managers; ESGR volunteers; and
others who have an interest in USERRA. ROA responds and provides
information and assistance, without regard to whether the individual
requesting assistance is a member of the Reserve Officers Association.
The Reserve Officers Association has noted a change in the typical
reemployment disputes faced by returning National Guard and Reserve
members. While many challenges still relate to lost jobs or demotions,
others are dealing with lost seniority, promotions, pay raises,
retirement credit and other employment related matters protected under
the Uniformed Services Employment and Reemployment Act (USERRA).
The greatest difficulty arises when the returning service member's
reemployment displaces another employee who has filled the Reservist's
position during mobilization. Employers often try to resist this
requirement, wanting to reward the employee who stayed behind.
In Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 284-
85 (1946), the Supreme Court enunciated the ``escalator principle''
when it held, ``[The returning Guard or Reserve member] does not step
back on the seniority escalator at the point he stepped off. He steps
back on at the precise point he would have occupied had he kept his
position continuously during the war.''
Section 4316(a) of USERRA [38 U.S.C. 4316(a)] codifies the
``escalator principle'' in the current law. After completing his
mobilization, a Guard or Reserve member is entitled to promotions, pay
raises, and other benefits that he most likely would have received if
he had remained continuously employed.
If a promotion is dependent upon passage of an exam (as is often
the case for police officers, firefighters, and other State and local
government employees), the employer is required to offer the returning
member the opportunity to take a make-up exam after returning to work.
If the member's score on the make-up exam is such that the person would
have been promoted if continuously employed, the individual is entitled
to the promotion, even if that means displacing another employee who
was promoted some months earlier. See 20 CFR 1002.193(b).
Of course, the ``escalator'' can descend as well as ascend. The
returning service member is not exempted from bad things, like
reductions in force and layoffs that clearly would have happened
anyway, even if the individual had not been away from work for military
service at the time.
Another recurring problem we see is the ``preemptive firing.'' If
the employer is aware that Mary Jones is likely to be called to active
duty sometime in the next 6 months or so, the employer often begins a
search for a pretext to fire Mary now, and thus avoid USERRA
obligations.
Question 2. In your opinion, are the four government agencies
charged with enforcing USERRA doing a satisfactory job of assisting
service members in resolving their reemployment problems? Are there any
agencies in particular that you feel are not serving service members'
needs effectively, and if so how are such agencies failing to serve
their needs? What actions should these agencies take to better handle
Reservists' reemployment problems? What can these agencies do to better
inform and educate returning soldiers, sailors, Marines and airmen of
their reemployment rights?
Answer 2. There are four agencies that have a role to play in
USERRA enforcement:
a. The National Committee for Employer Support of the Guard and
Reserve (ESGR), a Department of Defense organization.
b. The Veterans' Employment and Training Service of the Department
of Labor (DOL-VETS).
c. The Department of Justice (DOJ).
d. The Office of Special Counsel (OSC).
The vast majority of the USERRA disputes can be corrected through
good communications, as is demonstrated by the ombudsman program of the
Employer Support for the Guard and Reserve that does an excellent job
in correcting a large portion of these disagreements. Yet, not all the
problems that arise can be settled through mediation.
DOL's Veterans' Employment and Training Service (VETS) handles
USERRA complaints and other veterans' issues. DOL-VETS provides
assistance to all persons having complaints under USERRA.
Unfortunately, actual elapsed times of cases can often take 1 to 2
years to investigation and process. Within DOL, cases are still
processed on paper; this slows information transfer, and creates the
risk of duplication. In the vast majority of cases, the outcome is
dismissal of the claim.
If the Department of Labor does not resolve a complaint, it will
refer the complaint to the Department of Justice upon the request of
the person who filed the complaint. The cases go to the Civil Rights
Division of DOJ and in turn USERRA enforcement is assigned to the
Employment Litigation Section. Under USERRA, the DOJ has authority to
appear on behalf of a claimant in a suit filed in Federal district
court if DOJ is satisfied that the claimant is entitled to the rights
or benefits being sought. The Department of Justice does not pursue all
possible cases.
A successful demonstration project was authorized by Congress,
which expanded the Office of Special Council's (OSC) role over
federally employed Reservist USERRA cases. OSC got about half of the
Federal cases, and aggressively resolved many at a faster and higher
rate of success than DOL.
The Department of Labor should follow the success of the Office of
Special Council with dedicated investigators and lawyers assigned to
DOL-VETS who specifically focus on USERRA cases. I believe that DOL-
VETS would do much better with more funding for specifically assigned
and trained personnel.
ROA believes that there is room for improvement in each of these
agencies. DOL seems to have unreasonable expectations about the level
of proof (a ``smoking gun'') that is necessary to make a USERRA case,
and the agency closes all too many cases as ``without merit'' that do
have merit. Further cases are measured by time spent processing, not by
actual elapsed time.
The Reserve Officers Association believes five actions are
necessary to improve processing reemployment problems:
1. Resource the National Committee on Employer Support of the Guard
and Reserve adequately.
Enable ESGR to expand its outreach programs to employers.
This will head off many problems before they arise by educating
employers as to their USERRA responsibilities.
Staffing and training ESGR's ``ombudsmen'' will solve many
problems at a low level--the quickest way to get a service member back
to work.
2. The Department of Labor needs a specific set of USERRA
investigators who work on these issues full time.
3. USERRA records should be maintained and transmitted
electronically. with access by the service member, ESGR, DOL-VETS, the
Office of Special Counsel, and the Department of Justice.
4. Congress should mandate better reporting by all Federal agencies
involved in these cases:
How many cases are there?
How are they resolved?
How long does the process really take?
5. The Office of Special Counsel should handle all cases involving
Federal employees, in order to free up DOL-VETS to work with private
employers.
What is needed is not only a single Federal office which can focus
and streamline USERRA claims. but a collaboration between Federal and
private representation to serve this country's patriots who are
returning to being citizens from a tour as warrior.
The National Committee on Employer Support for the Guard and
Reserve has set an excellent example on how a Federal agency can work
with the private sector recruiting business executives to assist in
intervention with other business owners on USERRA.
The Labor and Defense departments are responsible for informing
service members and employers of their rights and obligations under
USERRA.
GAO reports that 72 percent of Guard and Reserve members with
reemployment problems never seek Federal remedy. This reflects a
breakdown in communication of knowing the rights, and options.
Active, Guard and Reserve leadership needs to be better
trained on USERRA rights to share with serving Guard and Reserve
members.
Enable ESGR outreach programs to employers and serving
members, and expand its ESGR's ``ombudsmen program.
Department of Labor needs to treat serving members as
their customers, by providing claims status to Guard and Reserve
Claimants.
Question 3. Why do you think that so many service members who
experience reemployment problems fail to contact anyone for assistance,
including the Federal Government? Why do you think that we have seen an
increase in recent years in the percentage of reservists with
reemployment problems who contact private attorneys? Are private
lawyers simply doing a better job of investigating and resolving cases,
or do our reservists doubt that the government will assist them
effectively?
Answer 3. Since USERRA's passage in 1994, most USERRA enforcements
were by reservists who sought private litigation. Unfortunately, many
Reserve Component members can't afford private litigation.
The actual elapsed times of DOL cases often take 1 to 2 years to
investigation and process. Many reservists are discouraged by the time
it takes for DOL and feel that DOL is not acting as their litigator.
They feel a private attorney would better represent them in a more
timely fashion.
A private attorney can investigate the facts and the law and make a
decision, and then send a demand letter and if necessary file suit,
within a month or so. Investigations at DOL-VETS take many months, and
in some cases many years. Also, a private attorney can consider legal
theories and remedies under various State and Federal laws, not just
USERRA. Finally, a private counsel will approach a USERRA case, or any
case, with a sense of advocacy, not neutrality, representing the Guard
or Reserve claimant.
However, not enough private lawyers are well-informed about
handling these USERRA cases. More information and training (in the form
of Continuing Legal Education) is needed.
Response to Questions of Senator Murray by Lieutenant General Dennis M.
McCarthy, USMC (Ret.)
Question 1. You mention in your testimony that the number of phone
calls and e-mails your organization receives regarding reemployment of
National Guard and Reserve is increasing. How much has it increased and
do you expect these numbers to increase further?
Answer 1. We had a five fold increase and get as many queries in a
day that we used to get in a week prior to 9/11/2001. As Guard and
Reserve members continue to mobilize in support of the Global War on
Terrorism, we expect to see a growing number of problems occurring
among our Nation's employers due to mobilization fatigue.
Question 2. What are the most common problems Guard and Reserve
members are having with reemployment?
Answer 2. Finding timely representation, to resolve their
employment problems, lawyers, willing to work pro bono or on
contingency, are needed, and these lawyers need training and research
materials to be effective.
Question 3. Does the Reserve Officers Association (ROA) have the
resources to handle the increased number of USERRA cases?
Answer 3. Not at this time. Working with very limited resources,
ROA has accomplished a great deal in educating Reserve Component
members and their civilian employers about their rights and obligations
under USERRA and other laws, but demand is greater than means.
The challenge is finding lawyers willing to represent Guard and
Reserve members facing USERRA problems.
Question 4. In your written testimony, you propose the
establishment of a Service Members Law Center at ROA. Do you think that
such a center would be necessary if the four Federal agencies were
accountable for maintaining and managing USERRA?
Answer 4. Yes. ROA is already providing a ``Law Review'' Library
with approximately 320 articles, about the Uniformed Services
Employment and `Reemployment Rights Act (USERRA) and related laws. This
is being used as a resource by both government and private attorneys,
as well as providing information to Guard and Reserve members. New
articles are added each month.
The Law Center would serve as a hub for sharing information on
USERRA and SCRA to serving members, professionals and academians. The
ultimate key to effective USERRA enforcement is to educate private
attorneys, both for USERRA claimants and for employers. By developing
the Law Center, ROA could conduct Continuing Legal Education (CLE)
sessions nationwide. We would also file amicus curiae (friend of the
court) briefs in courts around the country, in cases involving USERRA
and other laws that protect the rights of service members.
To accomplish all that needs to be done, we need startup assistance
from Congress. The initial cost of $750,000 is a small investment on
potential return.
[Whereupon, at 11:58 a.m. the hearing was adjourned.]