I believe that in most cases we are successful by simply providing information about federal law regarding the rights and responsibilities of both the servicemember and the employer. In general, ESGR will defer questions of public sector enforcement to the experts that you have testifying before you today.

ESGR is only the informal first step in employment problem resolution. However, I believe that we could only achieve marginal success if there were not a real threat of formal proceedings at some point. To that end, we appreciate the focus and attention that your committee has given this important topic today. But enforcement is key.

I would note before closing that ESGR is unique in that the greatest part of our mission is accomplished through the efforts of over 4,000 volunteers in 55 committees found throughout the states, the territories, the District of Columbia, and now a committee that we have established in Europe. These volunteers should be commended for their work in support of our servicemembers and employers. Many of these volunteers are employers, retired military members, attorneys, and civilian personnel managers who devote their personal time because of a deep patriotic belief in the ESGR mission. I would like to extend our gratitude to their enduring efforts.

Finally, I would again like to thank the committee and its staff for your foresight and proactive efforts on behalf of the Guard and Reserve. The Uniform Services Employment and Reemployment Rights Act states that "it is the sense of Congress that the federal government should be the model employer in carrying out the provisions of this chapter."

Mr. Chairman, the fact that we are here today is testimony to your continued commitment to that statement. ESGR appreciates this opportunity to address these vital issues.

Thank you.

[The prepared statement of Colonel Cox appears on p. 167.]

The CHAIRMAN. Thank you very much, Col. Cox, and thank you all for your testimonies and for your tremendous work. I just want to point out that Secretary Duehring's wife, Theresa, and nephew, Nathan, who is visiting from Minnesota, are here. If they wouldn't mind being acknowledged, and thank you for seeing government in action and certainly seeing your husband doing the fine job that he's doing, and your uncle.

Let me just ask a couple of questions if I could. I noticed, Capt. Iglesias, that you mentioned on page 5 of your testimony that 12 claims against states that were a group were dropped. What was the legal issue, and why did they not go forward?

Mr. IGLESIAS. Sir, if memory serves me, these 12 all came from one Guard unit in Ohio, and these guardsmen had been gone from their civilian jobs between 9 and 18 years. And the purpose of USERRA is to protect noncareer military members. And their claims predated in some cases USERRA's cap of five years of service. *So, DOL recommended that this was not the kind of case that we wanted enforced, and I believe DOJ also took that position, sir.

NOTE: The Department of Labor recommended representation in these cases. The Department of Justice declined representation.

The CHAIRMAN. I appreciate that clarification. Mr. Ciccolella, could you inform the committee about the status of implementing regulations for USERRA?

Mr. CICCOLELLA. Yes, Mr. chairman. Thank you. The regulations are now complete. This is really a very good news story. It took about a year to get the regulations done. They are very comprehensive. They're written in very easy to understand language, question and answer. They are about 200 pages long. We have certainly incorporated into the regulations much of what we have learned as a result of the mobilization, particularly on the issues that I talked about, the merit, seniority-based issues that employers and employees are concerned about.

The regulations are currently at the Office of Management and Budget. They should be in the Federal Register, or at least, are scheduled to be the Federal Register for public comment on 1 September.

The CHAIRMAN. Thank you. Col. Cox, your agency has had, as you explained, a particular role with USERRA in encouraging employer support for the law and in facilitating resolution of cases before enforcement enters the picture.

We do receive very positive comments about your work. What types of USERRA issues and problems are present in the post-9/ 11 cases which are coming to your agency?

Col. Cox. Sir, if I could characterize, before 9/11, most of the types of calls we were taking involved the short-term absences of going to a training assembly during a weekend or to the two-week annual training that's required with employers and employees asking about can they make me take my vacation? When do I can I reschedule their days off to accommodate them on the weekend? But the very short-term types of issues.

Now as the Department of Labor, Mr. Ciccolella mentioned earlier, we see them as long-term. Those are the types of questions that we get. What about my 401(k)? What about my merit promotion? I missed an evaluation and my employer says because I was not here to be evaluated, I will not receive my pay increase this year.

Well, that impacts long-term. If they don't get that one raise for that one-year or two-year period, that impacts all future raises. Those are the kinds of questions that we're seeing, sir.

The CHAIRMAN. Mr. Ciccolella, you might have heard me ask the previous panel, how are federal agencies are doing, the poorest what you're doing, the best relative to USERRA?

Mr. CICCOLELLA. Thank you, Mr. Chairman. We don't track the agencies in terms of, you know, which agencies have what number of complaints. Obviously the larger agencies would have the majority—more complaints. But that may or may not be proportional. If the Chairman would like that information, we could probably do something to break it down. The larger agencies are very obviously TSA, the U.S. Postal Service and the Defense Department because it has all of the services and you have a lot of department of military civilians in those services.

The CHAIRMAN. Consider yourself asked. I think that would be very helpful to this committee in our oversight capacity. And I think it would have a positive impact on the agencies themselves.

You know, again, we heard from a witness earlier about the VA not doing its job. That's very disconcerting. So I would request that you provide that, and I thank you for that in advance.

Let me just ask one question for the whole panel, any of you who would like to answer it, DOL, DOJ, all of you have some overlapping jurisdiction roles in USERRA, both in the compliance area and enforcement. Should the current setup be somehow streamlined or simplified? Do you have any recommendations that would change the model as to how we're operating, or is it working?

Mr. IGLESIAS. It's working. It would be helpful maybe to create internal deadlines, dates by which claims have to be processed from ESGR to DOL and then DOL to DOJ. We believe we timely process the vast majority of cases, but occasionally there are some that do languish. It would be helpful if there were internal deadlines.

Mr. CICCOLELLA. At the Department of Labor, we think it is working pretty well. We do not have problems working across agency lines, and of course that is the way you get things done in government. It may be very helpful, for example, as Mr. Bloch has testified, to bring the Office of Special Counsel into the process earlier, as he has recommended, and as he has done in a case very recently, in the pre-referral stage. That may be very useful, and our attorneys and the Special Counsel are working on those arrangements right now.

So the jurisdictions are important to maintain, but I think we're doing a good job of working through them.

Mr. DUEHRING. I'd like to also echo the comments of Mr. Ciccolella there that we have had a long working relationship with the Department of Labor especially in this area that has worked very smoothly. And we most recently have been talking with the Office of the Special Counsel. Also as they see their role becoming more important, how can we mesh better.

I think this all comes about because we now have hit a point in the mobilization where we have some trends. We have, you know, a large number of people to work with, and we can see where the rough spots in the roads are. And by and large, I have to say, it's a success story because as information is presented to us, it goes rather quickly, you know, through the system, and I think it's very clear to the people who have to use the system that USERRA is there for their use, and it's a powerful weapon to use, very reassuring to them.

And of course our challenge is to continuously get the word out and work the issues, and I think we're doing that fairly well.

Col. Cox. Sir, if might add, our folks, the volunteer ombudsmen throughout the nation work very closely with their DOL VETS counterparts out there in the states. We've gotten a lot of positive feedback from that.

And as far as timelines, one of the things that we have attempted to do, and it's basically an informal agreement, but if there's an individual who has been terminated or losing pay, we try to resolve the issue within three days or pass that to DOL VETS. If it's another issue that we are being successful in working with the employer, we'll attempt to work those for ten days and then attempt to pass those directly over to DOL VETS.

The CHAIRMAN. Let me just ask Secretary Duehring one final question. You testified regarding H.R. 3779, that you noted we are not aware that the situation the bill addresses is at all widespread enough to merit federal legislation, and may be isolated to no more than a few school districts.

Earlier I had asked one of the sponsors, Congresswoman Ginny Brown-Waite, what her estimate was, and she said her guess was 1,000 to 10,000. Is that an accurate number? I mean, what we try to do, as you know so well in hearings, is to determine what the facts are and hopefully get opinion and insight so that we move legislation that deserves to be moved. So, your best opinion on that?

Mr. DUEHRING. Sure. Mr. Chairman, I don't really have any numbers at all, and as I tried to make clear in that particular statement, that type of problem really hasn't made it-hasn't surfaced to our level yet, which kind of leads us to believe that it may be isolated. And obviously, people having problems like that very often go straight to their member of Congress, and that's very often the way we get the information is your folks pass it over to us.

But I think the comment that was made about an hour ago about the involvement of the school boards and, you know, working at the lowest possible level, which is actually the formula that we use in USERRA, enforcing USERRA, and our ombudsmen and also with students that have problems, you know, being pulled out of school, we find that 99.9 percent of the time you work at the lowest level, it gets resolved. So we just-we at least offer that as a question. Is it really a big problem that requires federal legislation?

The CHAIRMAN. Appreciate it. For the record, if you could, if you have any information about order of magnitude, I think it would be helpful. Because 10,000 would indicate we have a serious problem. Even 1,000 I think would. So if you could

Mr. DUEHRING. We'll provide you with whatever informationThe CHAIRMAN. Whatever you can find. That will be helpful. Let me ask you, Mr. Secretary, another question. I and other members are sure that other members of the committee are very concerned about the allegations of predatory tactics by some property management companies who lease to servicemembers. I know there are plenty of good companies doing business with servicemembers, but what can be done about any bad apples in order to protect servicemembers and their families? Is the Army, for example, examining the practices of the company that Ms. Kimmel testified about? And can any official action be taken if abuses are found, and especially if there's a pattern of abuse detected?

Mr. DUEHRING. Sure. In most cases of landlord noncompliance with SCRA and other laws, a call or a letter from a legal assistance authority-attorney, I'm sorry-or the installation housing office is sufficient to resolve the matter.

This has been true even in the Fort Hood area. But when that doesn't work, SCRA cases may be referred to the Department of Justice for an enforcement action or other assistance.

For example, at the request of the Fort Hood legal office, an Assistant U.S. Attorney in San Antonio sent a letter to the attorney of a landlord in the Fort Hood area who had asserted that a spouse's lease obligation was not terminated by the Servicemember

Section 305 termination. The letter made it clear the determination under Section 305 terminated all obligations under a lease signed jointly by a servicemember and spouse.

Also, when a servicemember is involved in private litigation where the SCRA is at issue, the Department of Justice may submit a statement of interest on behalf of the United States. Such a statement can be very helpful in influencing a state court's interpretation of the SCRA

There have been actually several cases in the Fort Hood area of landlords not complying with the residential lease termination provision of Section 305 of the SCRA. The Fort Hood legal office is aware of the companies involved and is working with the Army's installation management agency to ensure that any landlord that refuses to recognize a proper SCRA lease termination, that uses lease forms inconsistent with Section 305, or that insists servicemembers sign blanket SCRA waivers before or after signing a lease shall not remain on the installation's housing referral list. Additionally, the legal office has proposed that any landlord engaging in these or similar practices, such as the wrongful withholding of security deposits, be referred to the board responsible for recommending to the installation commander that certain commercial establishments be placed off limits to personnel.

The CHAIRMAN. Thank you very much for that very good statement. Mr. Evans?

Mr. EVANS. No questions.

The CHAIRMAN. Ms. Herseth?

Ms. HERSETH. Just a couple. Thank you, Mr. Chairman. I represent a state, South Dakota, with a very high number of deployments in the National Guard and Reserves, so implementation enforcement of USERRA regulations is very important to me.

And Mr. Ciccolella, if you-in response to a question posed by Chairman Smith about the regulations, you testified that you expect that USERRA regulations since they're at the OMB right now, final stages of review, are to be published and available for notice and comment by September of this year?

Mr. CICCOLELLA. Unfortunately, the rule process says that once they clear the Office of Management and Budget, they go to the Federal Register for public comment. Normally, they're in the public register for 45 days to 60 days, and then we incorporate the comments that we get and then publish what's called a final rule. Ms. HERSETH. Okay. So the September 2004 date that you indicated, it's my understanding that the Department of Labor has been before the committee before, and we think that the regulations are right around the corner. So how certain are you of that date that you've mentioned?

Mr. CICCOLELLA. Well, OMB has a requirement of no more than 90 days to review those regulations. We hope they can do that sooner, but that would put it on track for publication in the Federal Register on the first of September.

Ms. HERSETH. Okay. And do you feel that the Veterans Employment and Training Service has the necessary resources to meet all its responsibilities with respect to USERRA investigations and enforcement?