MSPB focus

By Neil McPhie

OSC demonstration project’s end could be bad news for veterans

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Neil McPhie is Director of Legal Services for Tully Rinckey PLLC.

At a time when the federal government is horrendously failing to support veterans and service members, the end of a three-year demonstration project last Friday could not have been timed any worse. Under this demonstration project, the Office of Special Counsel (OSC) had shared some of the responsibility of investigating federal employees’ Uniformed Services Employment and Reemployment Rights Act (USERRA) complaints – a task usually exclusive to U.S. Department of Labor’s Veterans’ Employment Services (VETS).

Enacted in 1994, USERRA is the most recent amendment to a series of laws dating back to the 1940s designed to protect returning service members’ employment and reemployment rights. USERRA prohibits discrimination and reprisal against members of the uniformed services, to include but not be limited to, “initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership.”

Four years ago, Congress passed the Veterans Benefits Act of 2010 (VBA), which included language for the 36-month demonstration project. Traditionally, VETS had the responsibility of investigating and attempting to resolve all USERRA complaints from federal employees. In instances where VETS could not resolve a dispute, OSC would get involved, but only when a complainant directed VETS to refer the case. Under the demonstration project, which began on Aug. 9, 2011, complaints from federal employees whose Social Security number ended in an odd number were investigated by OSC while complaints from employees whose Social Security number ended in an even number were investigated by VETS. The task of prosecuting all agency USERRA violations remained with OSC, and it will continue receiving VETS referrals of unresolved USERRA cases in the wake of the demonstration project’s conclusion.

Under the VBA, the comptroller general of the Government Accountability Office (GAO) is required to review the performance of VETS and OSC in the demonstration project. GAO must issue, no more than 90 days after the demonstration project’s conclusion (i.e., by Nov. 6), a report to the Committees on Veterans’ Affairs of the Senate and House of Representatives detailing the comptroller general’s “findings and conclusions…regarding the relative performance of the Office [of Special Counsel] and the Department [of Labor] under the demonstration project and such recommendations as the Comptroller General determines are appropriate.” In assessing OSC’s and VETS’ performances during the demonstration project, the GAO, as outlined in the VBA, must focus on customer satisfaction, cost, timeliness, capacity, and case outcomes.

Depending on how well OSC performed during the demonstration project, the prosecutorial agency could end up pushing VETS out of the USERRA complaint investigation/resolution process, and that is one potential outcome federal employees should welcome. Now that the demonstration project is over, Congress will soon have the opportunity to better help protect Reserve component members against agencies that violate USERRA.

Congress for years has had its eye on somehow reforming this unusual administrative complaint process, which splits duties between two agencies. In 2007, following the completion of a similar USERRA demonstration project authorized in the Veterans Benefits Improvement Act (VBIA) of 2004, GAO recommended returning the administrative complaint process to the pre-determination project status or giving the OSC authority to investigate all federal USERRA claims. However, this 2005-2007 demonstration project was plagued with problems, ranging from unreliable outcome data to vagueness in regard to goals of the VBIA, according to GAO. Congress appears to have authorized the second demonstration project so lawmakers could decide whether to adopt one of the recommendations GAO made in the 2007 report. GAO in that report had said an extended demonstration project would enable the agency to “provide information to inform congressional decision making.”

One of the reasons GAO recommended all federal USERRA claims be investigated by OSC was that it “has institutional experience from enforcement of statutes to protect federal employees from prohibited personnel practices, which… are similar to USERRA claims.” Before pursuing corrective actions for USERRA violations from the Merit Systems Protection Board (MSPB), OSC may try to help the agency and complainant reach a settlement by offering mediation. Although VETS similarly attempts to resolve USERRA disputes, its resolution practices lack the teeth of OSC’s mediations. Agencies are more likely to take settlement negotiations seriously when the immediate consequence of a failure to reach a deal can be prosecution before the MSPB, and that is not the case when VETS is in the picture.

Depending on GAO’s findings and conclusions, we may see a very different administrative complaint process for USERRA claims in the near future. In the last three years, OSC’s efforts have demonstrated significant success, and, hopefully, those successes are recognized. Regardless of whether VETS or OSC continues to investigate the administrative claims, federal employees should retain the right to secure a private attorney to help them through this process. Combined with OSC’s mediation program, a private attorney can greatly assist an employee in securing the best outcome possible without having to resort to costly litigation.

Neil McPhie is the Director of Legal Services for Tully Rinckey PLLC and the former chairman of the U.S. Merit Systems Protection Board. He concentrates his practice in federal sector employment and labor law and can be reached at info@fedattorney.com.

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