OSC to probe veteran discrimination cases

Patrick Boulay, Chief of the Uniformed Services Employment and Reemployment Rights Act Unit, Office of the Special Counsel

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By Jason Miller
Executive Editor
Federal News Radio

With thousands of veterans returning from two wars overseas, the Office of Special Counsel is taking on a new and larger role to help them.

By April 2011, OSC will begin taking on at least half of all discrimination cases filed by veterans under the Uniformed Services Employment and Reemployment Rights Act (USERRA). The Labor Department will handle the other half of the cases.

“Traditionally ours has been enforcement role, not an investigative one,” said Patrick Boulay, OSC’s chief of the USERRA unit. “The new demonstration project gives us the ability to investigate and prosecute, if necessary, so it expands our role. The goal is to see if having one agency handle a case from beginning to end would benefit the veteran.”

OSC received this expanded role through a provision of the Veterans Benefits Act of 2010 that President Obama signed into law Oct. 13.

Boulay said OSC will investigate about 150 to 200 cases a year. Overall, Labor traditionally receives between 1,100 and 1,500 USERRA complaints annually. In 2009, it received 1,431 complaints.

USERRA applies to all levels of government and the private sector. The 1994 law attempts to minimize disadvantages to military service members in their civilian employment.

Boulay said the law lets service members return to civilian jobs after they perform their military duty, prohibits discrimination while employed in terms of benefits of employment and protects veterans from retaliation if they file a complaint.

Before the passage of the law, OSC helped veterans prosecute claims against agencies before the Merit Systems Protection Board, usually after Labor had at least looked at the case.

In its 2009 USERRA report to Congress, Labor stated that OSC handles anywhere from 39 cases in 2008 to 169 in 2006.

In 2009, OSC saw 46 cases where a service member alleged discrimination based on military service, including termination, non-promotion, non-selection, or denial of employment benefits as well as violations of reemployment rights, retaliation for exercising USERRA rights and disabled Veteran discrimination.

Of those 46 cases, none went to the MSPB in 2009, but OSC expected at least to go before the board in 2010.

The Veterans Benefits Act requires OSC to run a three-year pilot program to see if it makes more sense for OSC to handle all federal cases or let Labor continue to be the main defender.

“There are a number of requirements that Congress wanted to establish to measure the comparative performance of DoL and OSC,” Boulay said. “GAO also will be doing a number of reports about OSC and DoL’s performance under the project so Congress can assess whether to give OSC permanent jurisdiction.”

He added that the performance measures include customer satisfaction, cost, timeliness, capacity and case outcomes.

The Government Accountability Office will issue a report to Congress when the program is completed assessing its success.

“It’s not much of a change for us,” Boulay said. “We already do investigations of prohibited personnel practices and the Hatch Act so a lot of the methodology and approaches are the same.”

This would be the second time OSC has taken on the review of veteran discrimination cases.

Boulay said between 2005 and 2007 Congress directed OSC to take half of all cases from Labor. He said the difference this time is the specificity of metrics lawmakers are asking for to determine where the full-time role should live.

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