GovernmentExecutive.com

The Labor Department once again has sole jurisdiction to investigate military service members' complaints about their federal employment, even though a study examining the processing of such claims was considered inconclusive.

A pilot project created by Congress in 2004 sought to determine which of two federal agencies -- Labor's Veterans Employment and Training Service or the Office of Special Counsel -- was better suited to investigate alleged violations of the 1994 Uniformed Services Employment and Reemployment Rights Act. The law protects veterans from employment discrimination resulting from their service.

Lawmakers allowed the demonstration project to expire on Jan. 1, 2008, and federally employed service members now must return to consulting VETS for initial investigation of their claims.

The project, which was launched after criticism from Guard and Reserve personnel that VETS took far too long to investigate alleged violations of USERRA, was designed to determine whether OSC's expertise in enforcing federal sector prohibited personnel practices could strengthen the law's enforcement for government employees.

But the project did not give lawmakers the definitive answer they expected. In July, the Government Accountability Office issued a report that did not reach a conclusion about which agency was better suited to handle USERRA cases. George Stalcup, director of strategic issues at GAO, testified at an October 2007 hearing of the Senate Veterans Affairs Committee that data problems at both agencies affected GAO's ability to draw conclusions.

Sen. Daniel Akaka, D-Hawaii, proposed at the hearing a one-year extension for the demonstration project. But a congressional aide said Thursday that lawmakers opted not to extend the project, largely because GAO had determined that further analysis would not be possible.

"GAO did not feel there was ample evidence that suggested that one [agency] was more right than the other," the aide said. "Their consensus was that there's nothing to be learned here."

Jim Mitchell, a spokesman for OSC, said Thursday that the major concern is stepped-up withdrawal of troops from Iraq and Afghanistan could result in a surge of claims to VETS. According to Pentagon figures released Jan. 9, the number of National Guard and Reserve personnel who have been mobilized currently stands at 92,673.

"The concern is that the nation isn't going to be ready for this," Mitchell said. "When everybody starts coming home, it's going to be a big mess, and it's going to be a big mess for the troops. We owe this to them."

Mitchell proposed allowing OSC to have jurisdiction over federal claims, which would free VETS to focus on providing services to USERRA claimants in the private sector.

OSC will continue to have a role in USERRA enforcement, however, if VETS is unable to resolve a federal sector claim. The claimant may request that VETS refer the matter to OSC, which may then represent the claimant before the Merit Systems Protection Board.

The congressional aide noted that there may be an additional role for OSC in the future, but lawmakers have not yet decided what it would be. "They clearly have a role here because [OSC] is still involved in the product and resolution," the aide said.

Akaka and Sen. Edward Kennedy, D-Mass., recently introduced legislation that would strengthen USERRA by imposing deadlines on federal agencies to assist service members. The legislation also would implement the recommendations in GAO's report to reduce inefficiencies and improve data collection by the government on USERRA issues.

The real issue, the aide said, is that federal response to USERRA claims has been lacking, especially when the government should be a model employer in enforcing the law.

To address this, lawmakers are considering whether to require that an agency's chief human capital officer be notified when a USERRA claim is filed. CHCOs then could then determine whether more training and education on the law was necessary, the aide said.

"This is a very complicated law and many may very well not understand it," the aide said. "I think it comes down to making sure that the education and outreach is there and that the federal government is setting the role as a model employer."