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	<title> - EXAMINING THE FUTURE OF WORKFORCE PROTECTIONS FOR SERVICEMEMBERS</title>
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	[House Hearing, 118 Congress]
	[From the U.S. Government Publishing Office]


	EXAMINING THE FUTURE OF WORKFORCE
	PROTECTIONS FOR SERVICEMEMBERS

	=======================================================================

	HEARING

	BEFORE THE

	SUBCOMMITTEE ON ECONOMIC OPPORTUNITY

	OF THE

	COMMITTEE ON VETERANS' AFFAIRS

	U.S. HOUSE OF REPRESENTATIVES

	ONE HUNDRED EIGHTEENTH CONGRESS

	FIRST SESSION
	__________

	THURSDAY, MARCH 9, 2023
	__________

	Serial No. 118-3
	__________

	Printed for the use of the Committee on Veterans' Affairs


	[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]


	Available via http://govinfo.gov


	__________

	U.S. GOVERNMENT PUBLISHING OFFICE

	51-537 WASHINGTON : 2023




	COMMITTEE ON VETERANS' AFFAIRS

	MIKE BOST, Illinois, Chairman

	AUMUA AMATA COLEMAN RADEWAGEN, MARK TAKANO, California, Ranking
	American Samoa, Vice-Chairwoman Member
	JACK BERGMAN, Michigan JULIA BROWNLEY, California
	NANCY MACE, South Carolina MIKE LEVIN, California
	MATTHEW M. ROSENDALE, SR., Montana CHRIS PAPPAS, New Hampshire
	MARIANNETTE MILLER-MEEKS, Iowa FRANK J. MRVAN, Indiana
	GREGORY F. MURPHY, North Carolina SHEILA CHERFILUS-MCCORMICK,
	C. SCOTT FRANKLIN, Florida Florida
	DERRICK VAN ORDEN, Wisconsin CHRISTOPHER R. DELUZIO,
	MORGAN LUTTRELL, Texas Pennsylvania
	JUAN CISCOMANI, Arizona MORGAN MCGARVEY, Kentucky
	ELIJAH CRANE, Arizona DELIA C. RAMIREZ, Illinois
	KEITH SELF, Texas GREG LANDSMAN, Ohio
	JENNIFER A. KIGGANS, Virginia NIKKI BUDZINSKI, Illinois

	Jon Clark, Staff Director
	Matt Reel, Democratic Staff Director

	SUBCOMMITTEE ON ECONOMIC OPPORTUNITY

	DERRICK VAN ORDEN, Wisconsin, Chairman

	NANCY MACE, South Carolina MIKE LEVIN, California Ranking
	C. SCOTT FRANKLIN, Florida Member
	JUAN CISCOMANI, Arizona FRANK J. MRVAN, Indiana
	ELIJAH CRANE, Arizona MORGAN MCGARVEY, Kentucky
	DELIA C. RAMIREZ, Illinois

	Pursuant to clause 2(e)(4) of Rule XI of the Rules of the House, public
	hearing records of the Committee on Veterans' Affairs are also
	published in electronic form. The printed hearing record remains the
	official version. Because electronic submissions are used to prepare
	both printed and electronic versions of the hearing record, the process
	of converting between various electronic formats may introduce
	unintentional errors or omissions. Such occurrences are inherent in the
	current publication process and should diminish as the process is
	further refined.
	C O N T E N T S

	----------

	THURSDAY, MARCH 9, 2023

	Page

	OPENING STATEMENTS

	The Honorable Derrick Van Orden, Chairman........................ 1
	The Honorable Mike Levin, Ranking Member......................... 2

	WITNESSES

	Mr. James Rodriguez, Assistant Secretary for Veterans' Employment
	and Training Service, Department of Labor...................... 4

	Col. Gilbert L. Patton (ret.), Reserve Organization of America... 14

	Mr. Mike Hadley, Director of Legislative Affairs, National Guard
	Association of the United States............................... 16

	Mr. Kevin Hollinger, Legislative Director, Enlisted Association
	of the National Guard of the United States..................... 17

	Mr. Jonathan E. Taylor, Principal, Gupta Wessler................. 19

	APPENDIX
	Prepared Statements Of Witnesses

	Mr. James Rodriguez Prepared Statement........................... 29
	Col. Gilbert L. Patton (ret.) Prepared Statement................. 39
	Mr. Mike Hadley Prepared Statement............................... 48
	Mr. Kevin Hollinger Prepared Statement........................... 49
	Mr. Jonathan E. Taylor Prepared Statement........................ 55

	Statements For The Record

	Department of Defense............................................ 61


	EXAMINING THE FUTURE OF WORKFORCE
	PROTECTIONS FOR SERVICEMEMBERS

	----------


	THURSDAY, MARCH 9, 2023

	U.S. House of Representatives
	Subcommittee on Economic Opportunity
	Committee on Veterans' Affairs
	Washington, D.C.
	The subcommittee met, pursuant to notice, at 10:36 a.m., in
	room 390, Cannon House Office Building, Hon. Derrick Van Orden
	(chairman of the subcommittee) presiding.
	Present: Representatives Van Orden, Ciscomani, Crane,
	Levin, Mrvan, McGarvey, and Ramirez.

	OPENING STATEMENT OF DERRICK VAN ORDEN, CHAIRMAN

	Mr. Van Orden. The subcommittee will come to order.
	Good morning.
	Before we get to the subcommittee's first hearing of the
	118th Congress, I want to introduce myself. My name is Derek
	Van Orden. I represent the Third congressional District of the
	State of Wisconsin. I am a proud retired Navy Seal, served our
	country for 26 years. I did five combat tours during that time.
	I am a 100 percent service-connected disabled veteran. I get
	all my health care through the VA, and I have utilized a lot of
	the programs myself and with my family and my shipmates that we
	cover under this purview.
	I am also incredibly excited to be working with Ranking
	Member Levin and other members of the subcommittee to serve
	those who have served us and given us our freedom. During this
	last Congress, Representative Levin and Representative Moore
	did amazing work by enacting meaningful legislation and
	conducting oversight over the VA. And under your leadership,
	this committee was not bipartisan, it was nonpartisan. I think
	that is the highest compliment you can give anybody in this
	town, and I intend to follow your example, and I expect every
	member of this committee to do the same, because the issues we
	are dealing with here supersede politics. I hope to continue to
	work with my ranking member in this Congress, especially on the
	Transition Assistance Program, the programs for homeless
	veterans, and improving the GI Bill.
	I recognize myself for an opening statement.
	Pleased to be here today to discuss the Uniformed Services
	Employment and Reemployment Rights Act of 1994, or USERRA, and
	the impact it has had on our service members and veterans.
	While I am thankful for the Department of Veterans Affairs
	Employment Training Services Program to be here today, I would
	like to say that I am not extremely disappointed that the
	Department of Defense (DOD) declined to participate in this
	important hearing on a program affecting those who serve our
	country, I am angry at them. DoD's employer support of the
	Guard and Reserve Program has a vital role in protecting
	service members and educating employees about USERRA rights and
	making sure our men and women transition from uniform to
	veteran.
	As more National Guard and Reserve units are called upon
	active duty, I hope in the future the Department of Defense
	makes protecting these service members and their jobs while
	they are on active duty a priority, especially when the
	Department continues to experience a recruiting shortage. At a
	minimum, I expect them to show up.
	USERRA, which was signed in law in 1994, does an incredibly
	important job of making sure that when service member returns
	to civilian life, they have employee protections and are not
	negatively impacted for protecting our country. This is not a
	workforce development or maintenance issue, this is a national
	security issue, as our National Guard and Reservists are
	integral to maintaining our freedoms.
	When I was a SEAL platoon chief in Iraq, I had 50
	Pennsylvania National Guard Operational Control (OPCON) to my
	unit. They were incredibly professional. One of them was a
	welder and I hoped that when he finished serving our country,
	that he had his job waiting for him back in Pennsylvania. It is
	incredibly important that we ensure that happens.
	My goal for today is to hear you, sir, the Department of
	Labor VETS, about their effort to implement a law and hear what
	we can do to help make your job easier to carry out the goal of
	a law. American businesses have been, and I know will continue
	to be, supportive of the mission of the National Guard, but
	there needs to be a balance of this mission and its impact on
	businesses ability to survive. This is especially true after
	COVID lockdowns and the rising inflation created by some poor
	economic choices of the Biden Administration. I am also looking
	forward to listening to the comments from our second panel on
	how USERRA can be improved and what they are hearing about
	implementing this law from a practitioner's point of view.
	To be clear, the law is the law and I will not stand for
	those companies or government entities who wave the flag and
	post patriotic videos on Veterans Day and Memorial Day, but
	then fail to support our service members and their families
	when they are deployed. Not on my watch.
	Thank you all for being here today. Look forward to hearing
	your comments and recommendations. With that, I yield to
	Ranking Member Levin for your opening statement, sir.

	OPENING STATEMENT OF MIKE LEVIN, RANKING MEMBER

	Mr. Levin. Thank you. Well, first, I want to congratulate
	you, Mr. Chairman, on being selected to chair the subcommittee.
	I am very grateful that in our interactions you have
	demonstrated a tremendous commitment to the work that we do on
	the subcommittee. As you said, it is not partisan in any way. I
	want to make sure that we carry forward with the legacy that we
	have had these last 4 years, first with Ranking Member
	Bilirakis, good friend from Florida, and then, of course, with
	Ranking Member Moore from Alabama. I hope to follow in their
	footsteps as ranking member to do the work of this committee in
	a nonpartisan bipartisan way. I also want to commend the staff.
	The House Veterans' Affairs Committee (HVAC) staff also works
	collaboratively, and we very much appreciate that. Both the
	majority staff, minority staff, and we look forward to that
	continued collaboration.
	We accomplished a lot in the 4 years that I was able to
	chair the subcommittee. We improved education standards, we
	increased access to the home loan benefit, we housed more
	homeless veterans. Again, none of that possible without that
	hard work on both sides of the aisle. I look forward to
	visiting western Wisconsin. I welcome you to San Diego.
	Hopefully, we will catch it during a really good, you know,
	beautiful--well, every time of year is a beautiful time of year
	in San Diego.
	Mr. Van Orden. I officially accept that invitation.
	Mr. Levin. Excellent. All right, we have it on the record.
	That brings us to the work that continues. We have got a
	tremendous amount more to do. The subject today, I think, is
	certainly an example of that.
	The Uniformed Services Employment and Reemployment Rights
	Act, or USERRA, is one of the bedrock laws which ensure that
	service members are not punished professionally for their
	commitments to our Nation's defense. Building upon the Veterans
	Reemployment Rights Act, Congress passed USERRA to ensure that
	no service member loses their job or is discriminated against
	when they answer the call of duty. Under USERRA, the Department
	of Labor investigates around 1000 violations each year, and
	fortunately, resolves the vast majority without needing to
	refer the case to the Department of justice (DOJ). However,
	this law is not comprehensive for many service members and for
	their families, does not cover military spouses, nor, in my
	view, does it adequately allow for covered service time
	commensurate with the length of a service member's employment.
	Also, many service members are forced into arbitration clauses
	in their employment contracts, giving our service members a
	Sophie's Choice between a paycheck and the USERRA rights.
	That is why our committee is actively working on
	legislation to cover military spouses and their families and
	finally end forced arbitration clauses.
	It is no secret that our services are not meeting their
	recruitment goals. For example, the Army National Guard only
	managed 66 percent of their goal the last fiscal year. Making
	it easier to serve while still pursuing a civilian life will
	bring more individuals to the service, where we can continue to
	offer the excellent benefits this committee oversees, such as
	the GI bill, home loan program, and more. I hope these are all
	places where our committee can continue to work in a
	collaborative fashion.
	Look forward to hearing from our witnesses--good to see you
	again--to learn more about gaps in the law, gaps also in the
	enforcement of the law, and how we can address those gaps.
	With that, I will yield my time back to the chairman.
	Mr. Van Orden. Thank you, Ranking Member Levin.
	I will now introduce our witness panel.
	Our first witness is from the Department of Labor, Mr.
	James Rodriguez, a veteran of the United States Marine Corps,
	an assistant secretary of Veterans Employment and Training
	Service.
	Sir, I am going to ask the Department of Labor (DOL)
	witness on our panel to stand and raise your right hand,
	please.
	Thank you. Let the record reflect that the witness has
	answered in the affirmative.
	[Witness sworn]
	Mr. Rodriguez, you are now recognized for 5 minutes to
	deliver your opening statement.

	STATEMENT OF JAMES RODRIGUEZ

	Mr. Rodriguez. Good morning, Chairman Van Orden, Ranking
	Member Levin, and distinguished members of the subcommittee.
	My name is James Rodriguez and I serve as the assistant
	secretary for the U.S. Department of Labor Veterans Employment
	and Training Service (DOL VETS), commonly known as USERRA.
	Thank you again for the opportunity to join you all today.
	DOL VETS, with the support of our interagency partners
	proudly administers, interpreter and enforces the Uniformed
	Services Employment and Reemployment Rights Act of 1994, better
	known as USERRA.
	As described in my written testimony, I first want to
	highlight my overall theme for this hearing, which is USERRA is
	critical to U.S. national security interests because USERRA
	supports the recruitment, retention, and readiness of the all
	volunteer force. Based on the national importance of USERRA, we
	welcome the opportunity to work with Congress, veteran service
	organizations, and others to continuously improve USERRA.
	I also want to recognize three of our interagency partners
	that assist VETS in administering USERRA, the Department of
	Defense's employer support of the Guard Reserve, the U.S.
	Department of justice, and the U.S. Office of Special
	Counsel.
	For the remainder of my oral testimony, I will highlight
	three important messages that support the overall theme of this
	testimony.
	First, VETS delivers positive USERRA outcomes for employees
	and employers alike. VETS conducts robust public outreach to
	educate service members, employers, and others on the USERRA
	rights and responsibilities. Since the terror attacks of
	September 11, 2001, which resulted in the single greatest
	mobilization of Reserve components, VETS has briefed more than
	1 million individuals on USERRA. So far this fiscal year, VETS
	has already conducted over 500 compliance assistance events
	nationwide, informing employees and employers alike of their
	rights and responsibilities under USERRA. When VETS is unable
	to resolve a USERRA issue through compliance assistance, a
	service member or veteran can submit a claim to VETS for
	investigation. When this occurs, VETS assigned the case to a
	trained USERRA investigator, and on average, over the past 3
	years, VETS has closed 943 cases for investigations per year.
	When VETS investigators find a violation of USERRA, they work
	diligently with both the claimant and the employer to resolve
	the case to their mutual satisfaction.
	Of cases in which VETS found a violation of USERRA in
	Fiscal Year 2021, VETS resolved 85 percent of those cases. VETS
	has also converted its 6 regional senior investigators to 1800
	series, or full time investigators, and hired an additional 10
	full-time 1800 series investigators to serve among the 6
	national regions.
	Second, VETS identified gaps in service delivery and
	coverage that Congress may want to address. Military spouses
	are not presently covered under USERRA. Removing barriers to
	military spouse employment could minimize some of the
	disadvantages and disruptions that Congress sought to address
	in enacting USERRA. It could also alleviate a significant
	stress around military families while recognizing the vital
	role of military spouses in the retention, recruitment, and
	readiness of the all volunteer force. Employment protections
	could easily help military spouses build successful careers
	without frequent interruption and restarts. They could bolster
	the financial stability of their families, especially during
	their service member's transition from military service to
	civilian life.
	Third, VETS asked for future congressional support to
	provide full funding of the VETS Federal Administration
	appropriation. VETS USERRA program does not have an independent
	budget. It is funded exclusively through the VETS Federal
	Administration appropriation. In Fiscal Year 2022, the
	President's budget request for the VETS Federal Administration
	was $52.5 million, but Congress only appropriated 46 million.
	In Fiscal Year 2023, the President's budget request for the
	VETS Federal Administration was just over $53.7 million, but
	Congress only appropriated $47 million. Appropriations below
	the budget. Requests have negatively impacted VETS' efforts to
	digitally modernize our paperless, VETS Case Management System,
	otherwise known as VCMS, that will enhance the customer service
	experience of our Veterans Service members, their families and
	their employers.
	In closing, VETS looks forward to working with the
	subcommittee to ensure that USERRA remains of fundamental
	importance to the recruitment, retention, and readiness of the
	all volunteer force. VETS is also committed to continued
	collaboration with our interagency partners to provide positive
	USERRA outcomes to employees and employers alike.
	Chairman Van Orden, ranking Member Levin, distinguished
	members of the subcommittee, thank you for the opportunity to
	highlight important work VETS is doing in support of our
	veterans, service members, military spouses who have served our
	country, and I look forward to any questions you may have.

	[The Prepared Statement Of James Rodriguez Appears In The
	Appendix]

	Mr. Van Orden. Thank you, Mr. Rodriguez.
	The written statement of Mr. Rodriguez will be entered into
	the hearing record.
	We will now proceed to questioning, and I recognize myself
	for 5 minutes.
	Mr. Rodriguez, in your testimony, said that in 2021, DOL
	VETS resolved 85 percent of the claims to the satisfaction of
	claimant. This means there is 15 percent that were not resolved
	to their satisfaction. Were those all referred to the DOL or
	the OSC, Office of Special Counsel? Those 15 percent?
	Mr. Rodriguez. Well, Mr. Chairman, what we do once we
	finish our part of the investigation, working with the
	claimant, then we give them the option to have that claim
	referred to DOJ. It is entirely up to the claimant. Once the
	claimant decides to do that, then we do refer to DOJ. We have a
	good track record within DOJ that if a claimant does get
	referred to there, that they have a good track record of
	resolving that claim. However, if it is not to their
	satisfaction, then the claimant can also take it to civilian
	court if they decide to do so.
	Mr. Van Orden. Of the 15 percent that is not resolved to
	the satisfaction of the claimant, do you have an idea--I am
	just trying to get a grasp of how many people we are talking
	about here.
	Mr. Rodriguez. I do not have the exact number in front of
	me, sir, but I would be glad to provide that in a response,
	written testimony, response back to you that would be I do not
	have the exact number this time.
	Mr. Van Orden. That would be awesome. Appreciate it
	greatly.
	Then they have to pay--if they decide to go to a civilian
	court that is paid out of pocket by the service member, is that
	correct?
	Mr. Rodriguez. That is correct.
	Mr. Van Orden. Okay, writing that one down.
	I also just want to acknowledge the fact, we talked about
	this briefly, that it is very clear that military spouses are
	the most overeducated and underemployed demographic. We are
	going to try to work that out. There are several different
	groups that work with military spouses, but you are absolutely
	correct that transition period when you are twice the husband
	and half the paycheck, it would be fantastic to have the spouse
	being able to pick up that slack. Thank you very much, sir.
	I am going to yield back my time so that my colleagues can
	have time to speak.
	I now recognize Mr. Levin.
	Mr. Levin. Thank you, Mr. Chairman.
	Secretary Rodriguez, good to see you again. Thanks for
	being here today. I know we are here to talk about USERRA. I
	will ask about that shortly. While you are here, I want to ask
	you a few questions about another law that DOL VETS is
	responsible for enforcing, and that is the Vietnam Era Veterans
	Readjustment Assistance Act of 1974, also known as VEVRAA.
	Last year, my staff inquired with DOL about VETS' Fiscal
	Year 2021 report to Congress, which omitted VEVRAA data as
	required by statute. I appreciate that DOL at that time
	committed to provide the available data in future reports, but
	I want to make sure this does not happen again. Why was the
	data excluded from the Fiscal Year 2021 report? What specific
	steps is DOL taking to ensure it will be included in the
	future?
	Mr. Rodriguez. Ranking Member Levin, I take full
	responsibility for that not being submitted. What I will tell
	you that we have been working with our colleagues at the Office
	of Federal Contractor Compliance who has the ability to capture
	this data, which we are working with them to try to find the
	right data from the State levels, but also looking at what data
	is the most relevant to the report requests. We are still in
	the process of doing that. I can assure you that we will work
	through this to provide the report to you.
	Mr. Levin. Thank you. We appreciate you following up,
	appreciate your taking full responsibility.
	One thing DOL did mention is that it may not have the
	mechanisms to track or collect the number of qualified covered
	veterans receiving priority and employment referrals, but I
	will mention that DOL committed to making sure they figure out
	a path forward to track and report this information. Have you
	taken any specific steps since we brought this up with your
	office?
	Mr. Rodriguez. We have. We have been working with the
	Office of Federal Contractor Compliance looking at what data
	they currently have and what data they do not have. Our teams
	have been working with their teams to figure out again what
	information is the most relevant. We have had numerous
	conversations with them at various levels of our organization.
	We plan to continue that to figure out how we can again
	conceptualize the right report, and we are still in the process
	of working on it.
	Mr. Levin. Okay, we appreciate your following up, and it is
	important priority as we have got constituents specifically who
	are impacted by the lack of this data being included as per
	required by statute. We appreciate it.
	I will turn to USERRA. And--actually, I will hold for now.
	I will wait until our next witness.
	I yield back.
	Mr. Van Orden. Thank you very much.
	I now recognize Mr. Ciscomani for Arizona for 5 minutes.
	Mr. Ciscomani. Thank you, Chairman. I look forward to
	working with you and the continued leadership of this
	subcommittee. I want to thank all the witnesses for coming here
	to testify on this important topic.
	I am proud to represent Arizona's 6th congressional
	District with over 70,000 veterans that call my district home.
	My district has the ninth highest concentration of veterans for
	any congressional district in the U.S. I know intimately that
	the work that we do here must be focused on advancing
	bipartisan solutions for those who fought to protect our
	country.
	Mr. Rodriguez, thank you for being here. Thank you for
	joining us. Thank you as well for your service.
	In your testimony, you speak about the need to break down
	the barriers to military spouse employment by including USERRA
	for military spouses. How many spouses, do you have an idea,
	would be included in this new rule?
	Mr. Rodriguez. Congressman, based off the data that we
	currently have working through with our DoD partners, capturing
	data from things that they have also looked at as far as
	research, almost a million--right under a million military
	spouses would be affected by a change in USERRA.
	Mr. Ciscomani. Thank you.
	Do you have an estimate of how many more USERRA cases and
	Department of Labor VETS would see if military spouses were
	included in USERRA.
	Mr. Rodriguez. How many more cases we would see?
	Mr. Ciscomani. Mm-hmm.
	Mr. Rodriguez. We are still working through that number.
	What we do know, though, is that in our current situation, with
	the amount of investigators we have, we would have to update
	the amount of investigators, hire new investigators to help
	with those claims. We are still going through the estimates
	right now, but we do not have an exact number of how many more
	places we would have.
	Mr. Ciscomani. Would the same be true for the cost of this,
	the final price tag that you think would impose on this new
	rule? If you extended the benefits to spouses, any estimate on
	the cost that the private sector would have for implementing
	such a change?
	Mr. Rodriguez. We do not have an estimate on the cost at
	this time.
	Mr. Ciscomani. Okay.
	Do you think spouse USERRA claims would be more difficult
	to verify and adjudicate with this change?
	Mr. Rodriguez. I think based off of our track record with
	USERRA claims processing as the chairman--and has been
	mentioned in our written testimony, 87 percent of our cases are
	roughly adjudicated. I have full confidence that we would be
	able to resolve the same amount of cases if we had military
	spouses as part of the USERRA process.
	Mr. Ciscomani. Okay.
	Then going back to the other two questions that you do not
	have all the details on this, is this something that you could
	get in terms of the cost and also the cost of the private
	sector? Obviously, that would be an estimated cost of that.
	Also the estimated on the Department of Labor VETS would see on
	the caseload increase there as well. Just to get an idea of
	what would be coming
	Mr. Rodriguez. We would be glad to do that, Congressman. We
	would be glad to submit that information back to you post
	hearing.
	Mr. Ciscomani. Thank you, Mr. Rodriguez.
	I yield back my time, Mr. Chair.
	Mr. Van Orden. Thank you, Mr. Ciscomani.
	I now recognize Mr. Mrvan from Indiana for 5 minutes.
	Mr. Mrvan. Thank you, Chairman.
	At this time, I just like to ask a question about USERRA.
	When you speak to employers about USERRA what do they say and
	why do you think some employers have USERRA violations?
	Mr. Rodriguez. Congressman, I speak to employers all the
	time, and I can tell you, for the most part, almost every
	employer wants to hire veterans, Guard Reserve, because they
	know how valuable they are to their bottom line. They know it
	is good for business. They know the value that veterans bring
	to their industries. For the most part, every organization
	wants to hire veterans, and they can not hire enough veterans
	for that part.
	Mr. Mrvan. What is the motivation for the violations, do
	you think?
	Mr. Rodriguez. I think most of it is a lack of education. I
	think when you look at the lack of education with regards to
	how to employ someone who is a Guard Reserve and they are in
	the process of getting orders maybe the first time, and the
	organization may not have ever had someone that was Guard
	Reserve that worked for them. What we try to do is mitigate
	that by providing outreach, providing education to employers
	who ask of us. By being proactive in providing that outreach,
	our investigators are constantly--when they are not
	investigating, they are constantly providing training and
	education to organizations.
	Mr. Mrvan. One of my questions new to the committee, a
	National Guardsman is deployed, comes back, there is a
	disruption in employment. How do they prove discrimination?
	Mr. Rodriguez. Well, if they feel like they are
	discriminated, they can file a claim with us directly and let
	our investigators do the work. The investigators will work with
	the claimant and the employer to try to come to a resolution.
	If they feel like they have been discriminated, they have every
	right to file a claim.
	Mr. Mrvan. Then one of my follow-up questions for military
	spouses. As the chairman talked about, the DOL VETS considers
	other statutes that may improve the--has the DOL considered
	other statutes that may improve the employment situation for
	military spouses rather than USERRA?
	Mr. Rodriguez. We looked at other statutes, we have done a
	lot of research. We still feel that USERRA is the best avenue
	for that.
	Mr. Mrvan. Okay.
	With that, I yield back.
	Thank you. Thank you for your service and your wife's
	service.
	Mr. Rodriguez. Thank you, sir.
	Mr. Van Orden. Thank you, Mr. Mrvan.
	I now recognize Mr. Crane from Arizona for 5 minutes.
	Mr. Crane. Thank you, Mr. Chairman. Man, I never thought I
	would say that. Holy cow. This town is in trouble.
	Mr. Van Orden. Nothing like a friend.
	Mr. Crane. If you guys only knew this guy, I mean, you
	would be concerned as I am.
	Thank you guys for showing up today.
	You know, I am also from Arizona. Like my colleague, Mr.
	Ciscomani here, I represent a rural district, a lot of
	patriots, a lot of veterans up there. I also formerly owned a
	veteran owned business where we hired a lot of veterans. It was
	called Bottle Breacher. Have you ever heard of it, Mr.
	Rodriguez?
	Mr. Rodriguez. I have heard of it now because I looked it
	up.
	Mr. Crane. Okay. It is kind of disappointing, Mr.
	Rodriguez, I have got to tell you. I am disappointed that you
	never had a bottle breacher, because I know some vets out there
	most certainly did.
	A couple of questions I have for you real quick, sir. In
	your experience, what type of entity is most likely to have a
	USERRA claim brought to DOL VETS? Small or large business,
	private, public, or nonprofit?
	Mr. Rodriguez. Congressman, I can tell you it varies. I
	think every category that you mentioned are likely to have a
	USERRA claim against them just because, again, as I mentioned
	earlier, it could be a lack of information about the USERRA
	process, a lack of information about the service members
	rights. It could be either one of those. Could be Federal
	Government, could be State government. Every one of those
	entities that you listed could fall into that category.
	Mr. Crane. I recognize that, Mr. Rodriguez, but have you
	seen any trends?
	Mr. Rodriguez. Trends? We have trends. I do not have that
	data in front of me. I would be glad to provide the trends to
	you. I do not have that data in front of me, but we do.
	Again, when you look at industries, they vary. Our veterans
	are employed in every single industry, as you know. I do not
	have those exact trends in front of me, but I would be glad to
	provide those to you.
	Mr. Crane. Thank you, sir.
	Next question. Some veteran service organizations in our
	second panel are concerned that DOL VETS investigators are not
	consistently conducting such oversight as is required by the
	USERRA operations manual. They have also stated that DOL VETS
	has wrongly investigated claims. Why has DOL VETS refused to
	send this manual to anyone?
	Mr. Rodriguez. Well, Congressman, I could tell you our
	manual has been updated and based off of policies. We are
	sticking to the policies that are currently in place. If the
	policies dictate that we do not release the manual right now,
	we are going to stick to the policies.
	I can give you some areas of improvement that we have had
	where often folks do not realize that the areas that we have
	improved when it comes to investigations, if I may
	One of those things, we have created specialized full-time
	Investigator 800 series, as I mentioned, positions in our 6
	regions exclusively in investigations. We have updated our
	investigators' manual also to emphasize the importance of
	conducting witness interviews, as well as the use of subpoena
	power to obtain evidence. We have also implemented a report of
	investigation for each case as a tool for investigators to plan
	their investigation and conduct case analysis for supervisors,
	to conduct frequent and meaningful reviews throughout the
	course of investigation. we continuously looked at ways to
	improve our investigative training. We are definitely taking a
	proactive approach to ensuring that our investigators are well
	trained and well positioned to support our service members when
	they file a claim.
	Mr. Crane. Just a real quick follow up there, real quick.
	Why again has DOL VETS refused to send this manual out? What is
	the purpose of keeping it in house?
	Mr. Rodriguez. At this point, I can tell you right now that
	I will have to review that. I know that is been a practice of
	ours. I will definitely review the practice and figure out if
	we can we can release it. In our current practice right now, we
	are not releasing it.
	Mr. Crane. Can you please get back to us on that, Mr.
	Rodriguez?
	Mr. Rodriguez. I definitely will.
	Mr. Crane. I yield back my time, Mr. Chairman.
	Mr. Van Orden. Thank you, Mr. Crane. I appreciate that
	greatly.
	Mr. Rodriguez, I would like you to take a note on that. I
	would like this committee to have access to that manual. I
	think it is incredibly important that we have transparency
	amongst your position and mine.
	Mr. Rodriguez. I agree, Mr. Chairman.
	Mr. Van Orden. All right. Let us get her done.
	At this point I would like to recognize Mr. McGarvey from
	Kentucky for 5 minutes, sir.
	Mr. Mcgarvey. Thank you, Mr. Chairman. I appreciate it.
	Thank you so much. Thank you for your testimony. Thank you
	for being in here and highlighting the importance of USERRA. I
	am glad to know that our service members and vets back home in
	Louisville, Kentucky, have some legal protection, both when
	active and when they return.
	Always been looking out for workers and employees. I am
	proud to advocate for the protection of USERRA. In my opinion,
	no employer should have the ability to discriminate against any
	workers, whether on the basis of being a veteran, race, gender,
	you name it. We know that USERRA offers some level of recourse
	for veterans, but like so many things, we need to make sure
	that these protections are enforced with deliberate speed and
	that they do not just exist on paper.
	Mr. Rodriguez, what do you think Congress should do to
	improve the enforcement of USERRA?
	Mr. Rodriguez. Congressman, that is a great question, as I
	wholeheartedly believe that there are ways to improve USERRA. I
	know the committee has worked on this in the past, and what we
	want to do is continue to work with the committee to find ways
	to improve it.
	If I can, I would like to highlight a couple of ways that
	we can work with the committee to improve USERRA.
	One, eliminate mandatory arbitration agreements. I think we
	have all agreed that that is something that is a disadvantage
	to our service members.
	Two, permitting pattern or practice claims.
	Three, voting or avoiding State sovereign immunity defenses
	and then authorizing late payment penalties. One of the biggest
	challenges we have is when a resolution is agreed upon between
	the claimant and the employer, then one of the challenges we
	have is ensuring that that individual does receive their
	compensation in a timely manner. We want to ensure that if
	there is a way to create penalties, if you will, for someone
	who does not meet that obligation, then we would more than
	happy to work with the committee on that.
	Allowing DOJ representation for all plaintiffs as well as
	including DOJ pattern or practice authority and then adding DOJ
	civil investigative demand authority.
	Those are ways that we have looked at in depth that we
	figure can definitely help improve the USERRA process.
	Mr. Mcgarvey. I really appreciate you sharing that. I think
	those are good steps that we can take to help protect our
	veterans and help protect our service members.
	My brother right now is in his 20th year of active duty and
	likely to get deployed again soon. I know in talking to him and
	to so many other active duty service members, one of the things
	that they are concerned about when preparing for active duty
	is, of course, leaving families behind. This applies when we
	talk about USERRA looking at it with spouses. If Congress
	expanded USERRA to cover military spouses, would you all have
	the capacity to enforce it?
	Mr. Rodriguez. One of the things, when we look at the
	ability to expand USERRA spouses, we know that is something
	that is well founded, well needed. It is something that many
	organizations have talked about in the past, and we are having
	even more robust conversations about that now. When we talk
	about it, the capacity of it from a budget standpoint,
	unfortunately, I cannot speak about the budget at this point
	because it has not been released. We definitely would want to
	work with Congress to look at the ability to have more
	capacity, if you will, to protect military spouses.
	Mr. Mcgarvey. Yes, I think that is something we would love
	to talk with you about and work with you on as well is
	strengthening USERRA to protect our active duty and our vets,
	and also that expansion to spouses. As we know, whether it is
	service here, whether it is service in the military, you do not
	serve alone. Making sure that military spouses are protected, I
	think, is important as well.
	Thank you for your testimony.
	I yield back.
	Mr. Van Orden. Thank you, Mr. McGarvey.
	I now recognize Ms. Ramirez from Illinois for 5 minutes.
	Ms. Ramirez. Good morning. Thank you, Chairman Van Orden
	and Ranking Member Levin, for taking the time to consider this
	real critical issue enacting to protect military service
	members, veterans, and their families from employment
	discrimination due to their service.
	I represent Illinois Third congressional District, and it
	is the district that starts in the northwest side of the city
	of Chicago, and it goes to Elgin in West Chicago in the
	suburbs. There are many critical infrastructure improvements
	needed there that will benefit greatly from Infrastructure
	Investment and Jobs Act. We need to build and support and
	empower the workforce with the livable wages to actually carry
	out the work. We know we have a long way to go to do that.
	Employers should know that Uniformed Service Employment and
	Reemployment Rights Act requires them to treat employees who
	take leave from Uniformed Service duty respectfully and without
	discrimination. This includes veterans with all rights and
	benefits that they would have earned in their civilian
	employment had it not been interrupted.
	Additionally, employers must protect an employee's job
	seniority when performing Uniformed Service duties. Employers
	must understand their obligations under this law to properly
	support the Uniformed Service personnel to ensure compliance
	with USERRA requirements. Doing so will protect both employees
	serving in Uniformed Services, as well as the integrity of the
	entire organization.
	With that said, Mr. Rodriguez, I want to talk a little bit
	about hourly versus salary employees. Does the Uniformed
	Service Employment and Reemployment Rights Act, USERRA, allow
	employees to continue to accrue vacation time during their
	military service?
	Mr. Rodriguez. Yes, it does, Congresswoman.
	Ms. Ramirez. Great, great. What about for hourly employees?
	Do they accrue vacation time as well?
	Mr. Rodriguez. Yes, if they are afforded vacation time as
	part of their roles and responsibilities, then that is
	protected USERRA.
	Ms. Ramirez. Great. How are hourly employees treated
	differently from salaried employees under the law?
	Mr. Rodriguez. They are not treated any differently than
	any of the other employees.
	Ms. Ramirez. Okay.
	Now, in terms of health insurance, can you explain how
	health insurance coverage is or is not protected for hourly
	employees?
	Mr. Rodriguez. Under the current USERRA Law, if they have
	health insurance coverage, then it is protected. All of their
	rights, all of their benefits are protected under USERRA.
	Ms. Ramirez. That is really important to hear, and I think
	it is important as we talk about how we provide the protections
	and the benefits that our veterans deserve and certainly those
	that are going back to active duty.
	I want to talk a little bit also about arbitration. What is
	the difference between substantive and procedural rights that
	may be affected by mandatory arbitration clauses?
	Mr. Rodriguez. The legal definition is pretty complicated,
	as you can imagine, and I definitely can make sure that you
	have that legal definition. I wanted to not--convey that
	accurately, but what I can tell you, when we look at mandatory
	arbitration, depending on what courts or look at it from the
	circumstances and the other piece of it, they can decipher it
	differently. One of the things that we want to ensure that
	veterans are not forced to have arbitration as a supplement
	over USERRA. We want ensure that their rights are protected
	through USERRA. That is one of the things that we would look
	forward to working with the committee to ensure that we find
	ways to protect those rights and veterans are not forced into
	arbitration prior to having the ability to file USERRA claim.
	Ms. Ramirez. Thank you, Mr. Rodriguez.
	I just want to thank you for your attention to this
	critical matter. As you can tell here in our subcommittee, we
	look forward to discussing how we can further educate public
	and private employers on USERRA so that the Uniformed Services
	personnel serving our country receive legal entitlements
	without discrimination or reprisal. I know that together we can
	ensure that service members and veterans are protected from
	employment discrimination due to their uniformed service
	duties. Thank you.
	I yield back.
	Mr. Van Orden. Thank you, Ms. Ramirez.
	Thank you, Mr. Rodriguez. You are excused. I hope that you
	and your staff will stay for the second panel. I am just going
	to tell you, Semper Fi, Devil Dog. Keep it on.
	Mr. Rodriguez. Thank you, Mr. Chairman, Ranking Member
	Levin, and members of the subcommittee, it is been a pleasure
	and Semper Fi.
	Mr. Van Orden. All right.
	Okay, we are going to go ahead and get set up for the
	second panel. Take a 5 minute break.
	[Recess]
	Mr. Van Orden. Committee will come to order.
	In our second panel, we have several veteran service
	organizations. Colonel Patton from The Reserve Organization Of
	America, Mr. Mike Hadley, director Of Legislative Affairs at
	The National Guard Association Of The United States, Mr. Kevin
	Hollinger, the legislative director of Enlisted Association of
	The National Guard Of The United States, and Mr. Jonathan
	Taylor, principal at Gupta Wessler.
	I would now like to welcome the witnesses on our second
	panel to the witness table.
	Let the record reflect that the witnesses have answered in
	the affirmative.
	[Witnesses sworn]
	Colonel Patton, you are now recognized for 5 minutes to
	deliver your opening statement.

	STATEMENT OF GILBERT L. PATTON

	Colonel Patton. Good morning, Chairman Van Orden, Ranking
	Member Levin, and distinguished members of the House Veterans
	Affairs Economic Opportunity Subcommittee.
	On behalf of the congressionally chartered Reserve
	Organization of America, thank you for the opportunity to
	participate in this important oversight hearing on protecting
	the employment and reemployment rights of our Nation's service
	members and veterans.
	The Reserve Organization of America, or ROA, commends the
	subcommittee's commitment to fortifying the integrity of USERRA
	to ensure that service members are not disadvantaged in their
	civilian careers because of their military service, that they
	are promptly reemployed in their civilian jobs upon return from
	duty, and that they are not discriminated against by employers
	because of past, present or future military service. In this
	spirit, ROA offers the following insights into how to better
	gauge the effectiveness of existing USERRA protections,
	modernize regulations governing USERRA enforcement, and ensure
	DOL VETS personnel are properly resourced and trained.
	First, ROA urges the members of this subcommittee to
	support amending Section 4332 of USERRA to require the
	Secretary of Labor to fulfill additional reporting
	requirements, including reporting the number of closed case
	reviews conducted by the Agency, and the number of disposed
	cases found to have been originally closed by DOL VETS with
	substantive errors. Current law requires the Department of
	Labor to report each year on the number of USERRA complaints
	received, the number of cases substantiated, and the number of
	cases referred to the Department of Justice or to the Office of
	Special Counsel. However, this data is merely transactional,
	and while it may serve to demonstrate the taskload of USERRA
	complaints filed by DOL VETS for budgetary purposes, it does
	not provide any indicators as to the accuracy or the
	completeness of how the complaints were processed.
	I served in the United States Air Force for 31 years. One
	of the most valuable lessons I learned first early on as an
	officer, then as an operational unit commander, and then as
	well as a leader of large headquarters staff organizations, is
	that you get what you inspect and you get what you measure.
	Without a proper inspection of DOL VETS performance to
	effectively execute the various provisions currently in USERRA
	law, we do not get a proper measure of USERRA. To correct this,
	ROA urges the members of the subcommittee to support directing
	a Government Accountability Office (GAO) study to examine DOL
	VETS performance of its statutory responsibilities under
	USERRA.
	I might suggest that the scope of that would include the
	findings of past GAO reports and past Department of Labor
	inspector general reports, and the evaluation of the previously
	assured corrective actions by DOL VETS to each of those
	reports.
	The desired end State of the study is to measure the
	capability and the preparedness of DOL VETS to ensure service
	members and veterans are truly protected under USERRA, identify
	potential changes in ensuring compliance with USERRA, and
	provide recommendations that would improve USERRA enforcement.
	While these studies may take time to develop and unfold, an
	action that can be taken now is to update the Department of
	Labor's regulations under 20 Code of Federal Regulation (CFR)
	that it promulgates that drive how USERRA is implemented. DOL's
	regulations currently serve as the primary basis for training
	and providing references to the investigators charged with
	preserving USERRA rights and benefits of service to members and
	veterans. However, these regulations in 20 CFR were last
	promulgated in 2005, and there have been several amendments to
	USERRA since then. The regulations are 13 years out of date to
	the most recent amendments to USERRA that were enacted.
	ROA believes DOL should be compelled by Congress to update
	their regulations on a more regular basis to ensure that
	investigators and staff are equipped with what is required to
	completely fulfill their statutory responsibilities under
	USERRA. Further, ROA encourages the members of the subcommittee
	to take a proactive approach in pulling back the curtain on how
	DOL currently enforces USERRA and has enforced USERRA in the
	past.
	Under Federal Freedom Information Act (FOIA) law, each
	agency of the Federal Government shall make available to the
	public, and I quote, ``administrative staff manuals and
	instructions to staff that affect the member of the public.''
	Despite this, DOL has invoked an exemption to avoid the release
	of its own USERRA operations manual, based on the assertion
	that the manual is compiled for ``law enforcement purposes''
	and that its release would ``disclose guidelines for law
	enforcement investigations or prosecutions that, if disclosed,
	could reasonably be expected to risk circumvention of the
	law''. There is nothing known to ROA to be within that manual
	that could remotely or much less reasonably be construed to
	provide an advantage to any party trying to circumvent a USERRA
	regulation or the law. ROA believes it is wholeheartedly
	necessary to immediately make the manual in its entirety public
	for the purposes of ensuring its processes and procedures are
	truly aligned with the text and the intent of USERRA.
	On behalf of ROA, thank you for your support of our young
	men and women in the reserve components, your support for their
	employers and for our Nation's veterans. Thank you for
	providing ROA with this opportunity to testify before you
	today. I look forward to any questions you might have.

	[The Prepared Statement Of Gilbert L. Patton Appears In The
	Appendix]

	Mr. Van Orden. Thank you, Colonel Patton.
	I now recognize Mr. Hadley for 5 minutes to deliver your
	opening statement.

	STATEMENT OF MIKE HADLEY

	Mr. Hadley. Chairman Van Orden, Ranking Member Levin, and
	other distinguished members of the committee, on behalf of
	almost 445,000 members of the National Guard Association of the
	United States and nearly 450,000 members of the National Guard,
	we truly appreciate the opportunity to share our thoughts on
	today's topic for the hearing. We thank you for your oversight
	and attention paid to the issues affecting those that have
	served and are currently serving our Nation.
	The operational tempo of the National Guard has increased
	significantly over the past 20 years, and even more so
	recently. From overseas deployments in support of Combatant
	Commands, the pandemic, civil unrest, wildfires and floods, the
	National Guard has remained always ready.
	In 2021 alone, the National Guard executed over 10 million
	man days. This has put an immense strain on our service
	members, families, and employers. National Guard soldiers and
	Airmen are unique in that they simultaneously manage civilian
	careers alongside their military careers. This has become even
	more challenging as military requirements expand. Regardless of
	what the law says, we know that Guard members' ability to find
	and maintain steady employment has been impacted and
	challenged. USERRA is in place to protect against
	discriminations of our soldiers and airmen. Employers must be
	educated in regarding existing law and USERRA protections and
	should be expanded where the gaps exist.
	The 116th Congress contract has made great progress in the
	Veterans Healthcare Benefits Improvement Act and which ensured
	coverage for specific areas of State active duty. However,
	those protections only covered duty beyond 14 days. State
	National Guard response missions are often less than those 2
	week time periods. We ask that the Committee remove this limit
	to protect all State active duty, regardless of the length.
	Another area of concern is the time off for treatment of
	service-connected disabilities. Military duty can be physically
	strenuous and injuries can occur. As members return from their
	missions, they should be given the time for appointments,
	rehabilitation, physical therapy, whether the Department of
	Veterans Affairs or other private healthcare facilities. The
	service members should focus on improving their healthcare
	without concern for retribution from their employer.
	That said, a healthy soldier airmen is one that has
	healthcare coverage. Today there are currently over 60,000
	National Guard members that do not have health care of any
	sort. This is a key readiness issue. It is imperative that all
	service members have the access to healthcare needed to meet
	their medical deployment requirements. We ask all members to
	support the Healthcare for our Troops Act, affording zero care
	or Tricare coverage, will dramatically increase readiness,
	solve turbulence in moving on and off healthcare plans, and
	ultimately save money. It will also provide additional cost
	savings benefit to the employer who would not need to provide
	health care to this employee.
	We understand that the challenge the military service can
	place on employers. An additional way to encourage our
	employers is through the Reserve Employers Comprehensive Relief
	and Uniform Incentives Act. The RECRUIT Act would authorize an
	annual tax credit for small business employers who employ
	National Guard and Reserve members and would go a long way in
	supporting communities. National Guard Association of the
	United States (NGAUS) supports and encourages the
	reintroduction of this bill in the 118th Congress.
	I thank you again for inviting NGAUS here to testify today.
	Your efforts are critical to the well being of our service
	members and the success of our National Guard. I look forward
	to continuing our work together and sincerely appreciate the
	steadfast leadership from the members and their staffs in
	advocating for the men and women of the National Guard.
	Thank you.

	[The Prepared Statement Of Mike Hadley Appears In The
	Appendix]

	Mr. Van Orden. Thank you, Mr. Hadley. The written statement
	of Mr. Hadley will be entered into the hearing record, as will
	Colonel Patton's.
	Mr. Hollinger, you are now recognized for 5 minutes to
	deliver your opening statement.

	STATEMENT OF KEVIN HOLLINGER

	Mr. Hollinger. Chairman Van Orden, ranking Member Levin,
	and members of the Committee, thank you for the opportunity to
	be here today and provide our thoughts on USERRA protection.
	Enlisted Association of the National Guard of the United
	States (EANGUS) is the only professional military service
	organization dedicated solely to the enlisted members of the
	National Guard. Unfortunately, National Guard service members
	frequently do not receive the same comparable benefits or
	afforded the same protections as active duty component and in
	some cases, even other reserve component service members, due
	to the duty status under which they are working. Today, EANGUS
	would like to address three concerns regarding USERRA
	protection affecting the National Guard. An employer's ability
	to use forced arbitration as a means of settling legal issues
	concerning USERRA, noncovered state funded service in uniform,
	noncovered family members.
	Removing forced arbitration is important legislation that
	will empower service members and their families against the
	practice of forced arbitration. This much too standard dispute
	process strips our service members of their rights under the
	Service Member Civil Relief Act, SCRA, and USERRA. Forced
	arbitration is a one sided nontransparent process in which
	service members have very little chance to achieve a favorable
	outcome when their rights and protections set forth under these
	Federal laws are violated. Service members need this legal
	protection restored without delay, not another study to show
	what they already know, that forced arbitration hurts them and
	their families and renders rights granted by SCRA and USERRA
	virtually meaningless. EANGUS urges the 118th Congress to
	introduce and pass legislation removing forced arbitration from
	USERRA and SCRA.
	The next concern I would like to discuss is non covered,
	state funded service in uniform. State active duty is available
	for Governors and adjudicate generals to use for various State
	concerns like State environmental disasters, civil unrest, or
	fulfill community needs. If a service member do not fall under
	one of the following three categories, they will not be
	protected by USERRA. State active duty for 14 or more days,
	State active duty in support of the national emergency, State
	active duty in support of a major disaster declared by the
	President. Since March 2020, the National Guard has activated
	over 320,000 service members in support of many overseas and
	domestic activities. From combat missions in places like
	Afghanistan to running COVID tests and vaccine sites in the
	U.S. Our dedicated service members of the National Guard must
	know that their job is safe and available when they return.
	In Torres v. The Texas Department of Public Safety, the
	Supreme Court considered whether the State, by ratifying the
	Constitution, gave Congress the power to authorize suits
	against states using its constitutional war powers. In the
	opinion authored by Stephen Justice Breyer, he stated
	Congress's ability to build and maintain the Armed Forces fits
	the test outline and PennEast's test. Thus, in joining together
	to form a union, the State agrees to sacrifice their sovereign
	immunity for the good of the common defense.
	With that opinion, we now know all duty statuses performed
	by National Guard should be considered by Congress therein.
	EANGUS would urge the 118th Congress to ensure USERRA
	protections for all Reserve and National Guard duties without
	timelines and regardless of who orders them the duty.
	The third concern I would like to discuss, USERRA
	protection for spouses. Everyone knows the sacrifice of the
	Reserve and National Guard personnel being pulled from their
	everyday lives and thrust into service of our country, but
	imagine if you were removed from your spouse at a moment's
	notice. If you still have or have had small children, how hard
	would it be for your spouse to make up for your absence? Well,
	that is how being a National Guard spouse works. Spouses often
	must take time away from their employment to figure out new
	schedules. At a moment's notice, they become the sole head of
	household. Army General Raymond Odierno often said, our country
	is great because of our military, our military is great because
	of our service members, and our service members are great
	because of our families. I think putting these three things
	together is the correct answer. EANGUS would urge the 118th
	Congress to legislate USERRA protection for spouses of
	activated Reserve and Guard service members.
	Finally, I would like to say military and veteran law and
	policies are often developed without understanding or
	appreciation for the essential distinction between the National
	Guard and active duty service. The members of the National
	Guard regularly lose out, and so do their families. These past
	3 years have shown America how important the National Guard is
	to everyday life. Regardless of the mission, a pandemic
	assistance, civil unrest, capital security, or overseas direct
	combat assistance, the National Guard has selflessly answered
	that call. Despite many of these activations happening at a
	moment's notice, the National Guard did not hesitate. They
	faithfully served their country and communities and
	accomplished the mission.
	Thank you for your time and I look forward to your
	questions.

	[The Prepared Statement Of Kevin Hollinger Appears In The
	Appendix]

	Mr. Van Orden. Thank you, Mr. Hollinger. The written
	statement of Mr. Hollinger will be entered into the hearing
	record.
	Mr. Taylor, you are now recognized for 5 minutes to deliver
	your opening statement.

	STATEMENT OF JONATHAN E. TAYLOR

	Mr. Taylor. Chairman Van Orden, ranking Member Levin, and
	distinguished members of the subcommittee, thank you for
	inviting me to testify today.
	I want to make three points.
	First, USERRA has never been more important than it is
	today. Since September 11, our country has heavily relied on
	Reservists and National Guard members to defend us. These
	service members account for nearly half of the 2 million people
	in our military, and they are essential to our safety. Most
	days, they go about their lives like anyone else working their
	civilian jobs, caring for their families, worried about their
	finances. They are also trained soldiers who balance their
	roles as civilians with ongoing military obligations, so they
	can stand ready to be called to active duty at a moment's
	notice.
	USERRA is the key statute that protects these service
	members in the workplace. It is the reason that when they are
	called to serve their country, they do not have to worry that
	their jobs will be there for them when they get back. Nor do
	they have to worry that they will be disadvantaged or
	discriminated against simply because they answered the call to
	serve. Take these protections away, and our military would have
	a hard time convincing people to join the Reserves.
	For that reason, as one Senate report put it, it is
	imperative that employers comply with USERRA. Employers often
	fail to do so. When that happens, Congress has given service
	members the tools to protect themselves. They can go straight
	to court. There, they can shine a light on their employer's
	practices, present their case to a neutral judge and jury, rely
	on the rule of law, and obtain a written decision that can be
	appealed and reviewed by the political branches. None of that
	will happen if they are forced against their will into secret
	arbitration, which leads to point two.
	USERRA has never been more at risk than it is today. When
	it was enacted in 1994, forced arbitration was barely a thing.
	Now it is everywhere. Corporations have learned from their
	lawyers that they can escape accountability for violating the
	law by inserting fine print into their take it or leave it
	contracts. As a result, getting a job increasingly requires
	checking one's rights at the door. Most nonunion private sector
	employers in the United States, over 60 million American
	workers are now subject to forced arbitration. Service members
	are no exception. Despite strong statutory language to the
	contrary, including a provision barring enforcement of any
	contract that impairs USERRA's rights, several courts have held
	that USERRA permits employers to impose forced arbitration on
	service members. That violates the statute's text and purpose,
	but more than that, it is immoral and unwise.
	A real life example helps to make the point. In 2012, a
	reservist named Kevin Ziober was called to active duty in
	Afghanistan. On his last day of work before his deployment, his
	employer threw him a party to celebrate his service, but
	afterward, they summoned him to a room and told him he was
	being fired. This meant that as Kevin was heading to a war
	zone, he now had to worry about how to pay his bills when he
	returned. That is the last thing that should be on a service
	member's mind as they go to war, and it is exactly why USERRA
	exists. After kicking him out of his job, his employer then
	kicked him out of court, invoking a forced arbitration clause.
	Service members like Kevin deserve better. Fortunately, as
	judges have noted, Congress can fix this problem. Now is the
	time for it to do so and clarify what should already be clear,
	forced arbitration has no place in USERRA.
	Last, this is not a partisan issue. Over 80 percent of
	Republicans, Democrats, and Independents support Federal
	legislation to end forced arbitration, and those percentages
	are surely higher when it comes to our troops. If nothing else,
	basic fairness dictates as much. Our service members fight for
	our freedom and defend our Constitution, the least we can do is
	preserve their freedom to decide how to protect themselves and
	defend their constitutional rights. Forced arbitration is the
	opposite of these values.
	As the Bush department of Defense observed, waiver is not a
	matter of choice and take it or leave it contracts of adhesion.
	The very reason we have a bill of rights in the first place is
	because the original Constitution lacked a right to a civil
	jury trial. As John Adams said, representative government and
	trial by jury are the heart and lungs of liberty.
	Eliminating forced arbitration for USERRA claims is not
	just about fairness to individual service members, it is also
	about empowering them as a group and protecting us as a Nation.
	Forced arbitration does not channel cases into a better system
	for resolving disputes, it extinguishes them entirely. For
	those precious few cases that actually get arbitrated, the
	secret nature of the proceeding means that even if a service
	member can beat the odds and win, no one else benefits. No one
	will become aware of the unlawful practice or the fact that
	they might have a claim, nor will Congress have any idea about
	how the statute is being applied and whether it needs to be
	amended.
	Add it all up, and the upshot is plain, forced arbitration
	badly undermines compliance with USERRA and it makes us less
	safe.
	I am happy to answer your questions.

	[The Prepared Statement of Jonathan E. Taylor appears in
	the Appendix]

	Mr. Van Orden. Thank you, Mr. Taylor. The written statement
	of Mr. Taylor will be entered into the record, the hearing
	record.
	We will now proceed to questions and I recognize myself for
	5 minutes.
	You guys may not have noticed it, but in the spirit of our
	opening statements, you just saw bipartisanship take place.
	Colonel, I spoke to Ranking Member Levin, we are going to get a
	hold of the GAO and we are going to make sure that they start a
	study to report what is going on with the actual--we want the
	real numbers for this arbitration. Mr. Rodriguez will be made
	aware of this. We will apparently have to send him a letter
	because he did not--where are you?
	There you are, Devil Dogs. Sneaking in the back on me. Mr.
	Rodriguez, we are going to get that to you. We want real
	numbers because, as we said, opening up the statement, we
	really want to help our veterans, and you owe us transparency,
	and we owe you honesty. How does that sound? Pretty good. All
	right? Good. Good call.
	Colonel, thank you for your 31 years of service. I
	appreciate it. As a Navy guy, it is really hard for me to say
	that, but I mean it. I know you are in the Air Force and still
	good to go.
	The committee staff, our staff, has heard that they have
	concerns since the Biden Administration has taken over the DOL,
	that the DOL VETS, the Department of Labor, have been difficult
	to reach when regarding these issues. What does DOL VETS, what
	do you need to hear from these folks, and how many times have
	you tried to talk and bring up these issues with DOL VETS? What
	do you guys need to hear specifically regarding to USERRA?
	Colonel Patton. Thank you for the question, Mr. Chairman.
	I would say, in the preceding 3 years, so that actually
	spans the first half of the current Administration and the
	trailing end of the previous Administration as well, that we
	have been trying to reach out on a regular basis and reaching
	out into various levels of the organization at the action
	officer level, if you will, at the State level leadership, at
	the region level leadership and at the national office. I can
	get you fairly accurate numbers as to the exact number of
	engagements of each, but suffice it to say, they have been
	regular. Deliberately we have tried to reach out at different
	levels within the organization to at least get to consensus on
	defining the problem. Until we get to consensus on defining the
	problem, there is not much hope in getting to consensus on
	getting to the solution.
	Mr. Van Orden. Roger that. I would really appreciate that
	data so we have a solid metric that we can bring.
	Colonel Patton. Thank you, sir.
	Mr. Van Orden. You bet.
	One follow up for you. While DOL VETS administers USERRA,
	my subcommittee has legislative jurisdiction over this issue.
	Is your staff willing to discuss the issues with our staff and
	work toward ensuring your Reserve Officer Association's
	concerns are listened to and legislated?
	Colonel Patton. Absolutely, Mr. Chairman.
	Mr. Van Orden. Fantastic.
	I yield back.
	Colonel Patton. Thank you, sir.
	Mr. Van Orden. I now recognize Ranking Member Levin for 5
	minutes.
	Mr. Levin. Thank you, Chairman, and thanks to all our
	witnesses for being with us and for your testimony.
	I have been a strong supporter and am a strong supporter of
	strengthening benefits and protections for our Guard and
	Reserve members. It has been a pleasure working with many of
	you and others that are not here over the past 4 years,
	particularly on GI Bill Parity. We are going to continue to
	work very hard on that, and I look forward to our continued
	partnership on many of these issues.
	One area for improvement I want to explore is USERRA's,
	limitation that the cumulative length of service that causes a
	person's absences from a position may not exceed 5 years. I
	want to ask each of you, we will start on your side, is the 5
	year window adequate for employees who stay with one employer
	for a long period of time? Colonel Patton will start with you.
	Colonel Patton. I will start off, ranking member, by
	stating that there are exceptions or allowances to the 5 year
	limit, first off. I am going to paraphrase, but those are for
	things such as readiness training. Training is not all done
	upfront one shot, you know, and then you are trained for life.
	Certainly our tactics, our procedures, our equipment, our
	technology evolves over time, units are re-missioned over time.
	There is developmental education that, that a military member
	receives perhaps in their 30's or their 40's that just would
	not have the same efficacy giving it to an 18 year old military
	member. There are allowances for all sorts of those things. I
	would say in a very generalized sense, that those allowances
	are fairly adequate.
	Having operationalized the Reserve component in the 1990's,
	and then the demands that were then placed on the
	operationalized Reserve components soon after 9/11 have
	certainly then invoked other exceptions that require a military
	member to be--if they deploy over and over and over again, they
	may exceed that limit with a particular employer. There are
	exceptions in the law and those exceptions are granted to
	different levels within the executive branch, depending on
	which status in which the member is called to service.
	Mr. Levin. Thank you.
	I want to make sure to get everybody in, and we only have 5
	minutes, so I will go to Mr. Hadley.
	Colonel Patton. Thank you, sir.
	Mr. Hadley. Thank you, sir.
	Yes, I would agree with the first witness' unit statement
	there. I do not think that it is an easy one size fits all kind
	of provision that is in there. There is a lot of unique
	circumstances that occur throughout the, you know, the course
	of a service member's life and employment life as well. I think
	that we need to, you know, explore that and look for ways that
	we can capture that and then accommodate those needs.
	Mr. Levin. Thank you.
	Mr. Hollinger.
	Mr. Hollinger. As the enlisted member, we are going to keep
	it really direct and say no, it is absolutely not enough time.
	I served 22 years in both the Army active duty and in the
	National Guard, I have 11 combat deployments. If this rule
	would have solely been enforced on me, I would not have had a
	job. As we stay in longer, our senior leadership becomes
	extremely important and vital to our success. Because of that
	fact, we are very loyal on the outside. Five years is not
	enough, sir.
	Mr. Levin. Thank you.
	Mr. Taylor, you get the last word here.
	Mr. Taylor. Sure, I will keep it brief.
	I have not studied the issue carefully enough to offer an
	opinion, but what Mr. Hollinger just said sounded pretty good
	to me.
	Mr. Levin. Let me ask you, Mr. Hollinger, can you speak to
	any instance in which you have seen a service member personally
	impacted by the 5 year window? I think you just mentioned your
	own experience.
	Mr. Hollinger. I only have one example. I am not going to
	use his name because I have not talked to him about it, but it
	was in northern Indiana at one of the steel mills. As he came
	on his seventh deployment, and it was about 2015, he was told
	not to come back. Now, his union was very strong and just sent
	him to a new steel mill when he got back. That did come into
	effect.
	Mr. Levin. Got you.
	One last question for you, Mr. Hollinger. You noted in your
	testimony the U.S. Supreme Court decision Torres v. Texas
	Department of Public Safety. It held that states may not invoke
	sovereign immunity to avoid liability under USERRA. That is not
	specifically codified in law, is my understanding. What is your
	position on the decision and can you speak to the need for
	legislation on the issue?
	Mr. Hollinger. Well, I think government accountability,
	especially when it comes to employment, is the utmost
	importance. I think the government sets the standard for all
	the rest of us to follow. I think the government standard needs
	to be a lot higher and make sure that they are following the
	law.
	As far as that decision, I truly do believe that an
	individual that is affected at a state level does need that
	easy path through opening the case in their name, in a Federal
	court or in a state court is imperative. It is very, very hard
	for especially lower enlisted individuals to wait 5, 6, 7 years
	for a case to work through DOJ or through DOL and try to get
	resolution. We need----
	Mr. Levin. Thank you.
	Mr. Hollinger [continuing]. to take care of----
	Mr. Levin. Over time, but thank you all for your testimony
	and your service.
	I yield back to the chairman.
	Mr. Van Orden. Thank you, Raking Member Levin.
	I will recognize Mr. Ciscomani from Arizona for 5 minutes.
	Mr. Ciscomani. Thank you, Mr. Chairman. Thank you again to
	all the witnesses for coming here with us today to testify.
	Questions for the Colonel. In your testimony, you suggested
	that another agency might be more appropriate to administer
	USERRA. How do you think it would benefit service members to
	have another agency administer the program and part of that,
	what issues would you foresee with moving the program out of
	the Department of Labor?
	Colonel Patton. Thank you for the question, Mr. Ciscomani.
	To be clear, I did not make that as a recommendation or
	certainly did not intend to in my oral remarks. It is merely an
	acknowledgement that it is our understanding that there is a
	discussion going on within staffs, potential legislation that
	might do so.
	As far as the challenges to another agency, I would foresee
	that those could be very similar to the challenges that the
	current agency has with consistent USERRA enforcement.
	Mr. Ciscomani. Based on the discussions that are going on,
	how would you think it would benefit?
	Colonel Patton. Certainly this will be my own opinion, but
	as a veteran, having worked through the systems, if you will,
	of veterans benefits both with the Department of Labor and the
	Department of Veterans Affairs, I might suggest the Department
	of Veterans Affairs has kind of had that watershed moment
	culturally already in terms of how it responds to and provides
	to veterans needs, particularly their statutory needs. That
	Department of Veterans Affairs might be further down the road
	of being veteran focused and able to be responsive to those
	veterans benefits. That is purely my personal opinion.
	Mr. Ciscomani. It will be noted as that.
	Colonel Patton. Pretty speculative as well, so.
	Mr. Ciscomani. Understood. Thank you for your thoughts on
	that, Colonel.
	Colonel Patton. Thank you, sir.
	Mr. Ciscomani. Thank you for your service.
	Mr. Hollinger, for your membership, how long does it
	usually take for a claim to be resolved by the Department of
	Labor, in your experience?
	Mr. Hollinger. I do not have that exact number up. I would
	say a lot of times by the time it gets to the Department of
	Labor, what would be the variation on that? I would say it
	would probably be somewhere around a year.
	Mr. Ciscomani. About a year? How long would it generally
	take for a claim to be resolved, do you think, in Department of
	Veteran Affairs or Department of Justice?
	Mr. Hollinger. Well, I am not advocating for it to go
	anywhere else, I am advocating for them to be able to bring it
	in their name into a courtroom of their local jurisdiction or
	the Federal side. I am not advocating for another department or
	another bureaucracy at all, sir.
	Mr. Ciscomani. Okay.
	Now, do you think that most businesses are aware of the
	protections afforded to serve as members by USERRA? What steps
	could we take to make sure that more businesses are aware?
	Mr. Hollinger. I believe that the education needs to come a
	lot through the military service community. So myself. So a
	business that is not that is not aware of how USERRA works,
	please refer them to me.
	Number two, I think most businesses are very patriotic and
	love this country. I think the wear down of a 20 plus year war
	has fatigued a lot of businesses and kind of hurts the
	decisionmaking process every once in a while. I think most of
	these cases would be settled outside of a courtroom if they
	were opened in the name of the individual.
	Mr. Ciscomani. Got you.
	Thank you so much, Mr. Chairman. I yield back.
	Mr. Van Orden. Thank you, Mr. Ciscomani.
	I now recognize Mr. McGarvey from Kentucky for 5 minutes.
	Mr. Mcgarvey. Thank you, Mr. Chairman. Thank you, Mr.
	Hollinger. I appreciate what you just said too, about the fact
	that we are 20 years going on this. I mentioned my brother in
	the previous panel who got commissioned in May 2002 and
	watching what he has gone through in his career, the number of
	deployments, how hard that is on families.
	I want to continue to hit a little bit on the questions I
	was talking with Mr. Rodriguez about, about spousal
	protections. I mean we know what we are asking our men and
	women who are willing to put on a uniform to keep this country
	safe to do, and that is whether it is being activated, whether
	it is being deployed, whether it is going to a natural disaster
	if you are in the Guard, something like that. We expect a lot,
	it will require a lot, and there is honestly not often a ton of
	notice on when you are leaving or a lot of certainty on the
	date you actually come back.
	Dr. Taylor, you told the story about the individual who was
	given the party, and in the same day given a party by the
	employer let go on going to active duty. This is tough. This is
	tough on readiness of our Force. I again want to go back to the
	spousal part of it.
	Mr. Hollinger, I know you know just as much as probably
	anybody about what our members go through when they are
	activated, called to serve, and you know the difficulty that
	their spouses go through when that happens. Could you speak a
	little bit more about why expanding USERRA protections to
	spouses would improve our readiness and well-being of our
	National Guard and service members?
	Mr. Hollinger. Well, I think everybody in this room is
	aware of how important our spouses are. Mine sits right behind
	me, right over here in the blue dress. Anyway.
	Mr. Mcgarvey. Thank you both for your service.
	Mr. Hollinger. The spouses are the most critical aspect of
	what we see every day and what makes the National Guard
	function. Without them, everything ceases to maneuver.
	Retention, recruiting, all of this stuff will suffer greatly
	without the spouses. When a spouse is thrust into that
	environment where they have to be the sole caregiver to their
	household, it takes tremendous dedication, patience,
	intelligence. They are the heartbeat of what happens in the
	National Guard. They need that protection just like they are
	active duty service members.
	As I said earlier, I deployed 11 times. That is the easiest
	thing in the world to do is deploy. I had great leadership that
	said, go that way, do great things for America, and I did that.
	My spouse who sits at home does not have that same leadership
	to say, hey, go that way. Make sure your kids do great things
	for America. She has to figure that out on her own. I think
	that is the important part that we need to focus on, is how
	important the spouses are every single day.
	Mr. Mcgarvey. Amen. Thank you for sharing that.
	I am going to ask you the same question that basically I
	asked Mr. Rodriguez as well. If you could just tell us what
	Congress should be doing to improve the enforcement of USERRA
	and what are you hearing from your membership in that regard?
	Mr. Hollinger. To make sure that the enforcement, I think
	DOL is making great strides going forward. I think if we
	support them, continue to support them, I think the right
	individuals are probably in place there. I am very fortunate
	when it comes to the DOL and very pro what they are doing
	today. I have an individual, not sure if he is still back
	there. I have called him commander two different times, I have
	called him friend and now I call him co-worker. I think he is
	the right guy to have there. I think Mr. Rodriguez is the right
	guy to have there, and I think DOL will do great things.
	Mr. Mcgarvey. Thank you. I appreciate it. Mr. Hollinger,
	thank you for your service and to your spouse, thank you for
	your service as well.
	I yield back.
	Mr. Van Orden. Thank you very much, Mr. McGarvey. I
	appreciate it greatly.
	This panel is excuse from the witness table.
	I want to thank our witnesses for appearing today to
	discuss this national security issue, because that is what
	USERRA is. We have got to make sure that our service members
	are protected while they serve overseas or in the United States
	in emergency declarations. We also have to make sure that DOL
	VETS continues to do their good work. In the future, I do not
	hope, but I expect to see the Department of Defense here as
	witnesses as well. Their absence is duly noted, and it is
	unacceptable. USERRA, SCRA, and the Transitional Assistance
	Program (TAP) programs are important programs that this
	committee has jurisdiction over, but the Department of Defense
	administers them, and we need them to show up to do their job.
	With that, I yield to Ranking Member Levin for any
	concluding remarks he may have.
	Mr. Levin. I associate myself with the chairman's comments
	regarding the Department of Defense. This is something that
	would consistently frustrate me throughout my 4 years as
	chairman. Getting all the relevant folks to attend these
	hearings is essential for us to do our work on this
	subcommittee, and we are grateful to those of you who are here
	and who stayed for our second panel. I also want to
	congratulate the chairman on a fine first hearing of our
	subcommittee. I am looking forward to really an excellent
	couple of years.
	With that, I will yield back.
	Mr. Van Orden. Well, thank you, Ranking Member Levin.
	I want to thank you all for coming here today. Your
	participation is vital so that we can help do what is right by
	our veterans.
	I ask unanimous consent that all members have 5 legislative
	days to revise and extend their remarks and include extraneous
	material.
	Without objection, so ordered.
	The hearing is adjourned.
	[Whereupon, at 11:57 a.m., the subcommittee was adjourned.]



	=======================================================================


	A P P E N D I X

	=======================================================================


	Prepared Statement of Witnesses

	----------


	Prepared Statement of James Rodriguez

	[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

	______


	Prepared Statement of Gilbert L. Patton

	[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

	______


	Prepared Statement of Mike Hadley

	Chairman Van Orden, Ranking Member Levin, and other distinguished
	members of the committee:
	On behalf of the almost 45,000 members of the National Guard
	Association of the United States and the nearly 450,000 members of the
	National Guard, we truly appreciate this opportunity to share our
	thoughts on today's topic for hearing. We thank you for your oversight
	and the attention paid to the issues affecting those who have served
	and are currently serving our Nation.
	The operational tempo for the National Guard has increased
	significantly over the past 20 years, and even more so recently. From
	overseas deployments in support of combatant commands, the pandemic,
	civil unrest, wildfires, and floods, the National Guard has remained
	``Always Ready.'' In 2021 alone, the National Guard executed over 10
	million man-days. This has put an immense strain on our servicemembers,
	families, and employers. National Guard Soldiers and Airmen are unique
	in that they simultaneously manage a civilian career alongside their
	military careers. This has become ever more challenging as military
	requirements expand.
	Regardless of what the law says, we know Guard members' ability to
	find and maintain steady employment has been impacted and challenged.
	USERRA is in place to protect against discrimination of our Soldiers
	and Airmen. Employers must be educated regarding existing law and
	USERRA protections should be expanded where gaps exist. The 116th
	Congress made great progress with the Veterans Health Care and Benefits
	Improvement Act which ensured coverage for specific areas of State
	Active Duty. However, those protections only cover duty beyond 14 days.
	State National Guard response missions are often less than two weeks.
	We ask that the committee remove this limit to protect all State Active
	Duty, regardless of length.
	Another area of concern is time off for treatment of service-
	connected disabilities. Military duty can be physically strenuous, and
	injuries can occur. As members return from missions, they should be
	given time for appointments, rehabilitation, or physical therapy,
	whether at the Department of Veterans Affairs or other private health
	care facilities. The service member should focus on improving their
	health without concern of retribution from their employer.
	That said, a healthy Soldier or Airman is one that has health care
	coverage. There are currently 60,000 National Guard members that do not
	have health care of any sort. This is a key readiness issue. It is
	imperative all service members have access to the health care needed to
	meet medical deployability requirements. We ask all members to support
	the Healthcare for our Troops Act. Affording zero-cost TRICARE coverage
	will dramatically increase readiness, solve turbulence moving on and
	off health plans, and ultimately save money. It will also provide an
	additional cost-saving benefit to the employer who would not need to
	provide coverage to that employee.
	We understand the challenges military service can place on
	employers. An additional way to encourage our employers is through the
	Reserve Employers Comprehensive Relief and Uniform Incentives Act. The
	RECRUIT Act would authorize an annual tax credit for small business
	employers who employ Guard and Reserve members and would go a long way
	in supporting our communities. NGAUS supports and encourages the
	reintroduction of this bill in the 118th Congress.
	I thank you again for inviting NGAUS to testify. Your efforts are
	critical to the well-being of our service members and the success of
	our National Guard. I look forward to continuing our work together and
	sincerely appreciate the steadfast leadership from the members and
	their staffers in advocating for the men and women of the National
	Guard.
	______


	Prepared Statement of Kevin Hollinger

	[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

	______


	Prepared Statement of Jonathan Taylor

	Chairman Van Orden, Ranking Member Levin, and distinguished members
	of the Subcommittee: Thank you for inviting me to testify today. My
	name is Jonathan Taylor. I am a principal at Gupta Wessler PLLC, a law
	firm focused on Supreme Court and appellate advocacy. Since joining the
	firm over a decade ago, I have argued some of the most important cases
	under the Uniformed Services Employment and Reemployment Rights Act,
	including White v. United Airlines, 987 F.3d 616 (7th Cir. 2021),
	Travers v. Federal Express, 8 F.4th 198 (3d Cir. 2021), and Clarkson v.
	Alaska Airlines, 59 F.4th 424 (9th Cir. 2023). I have also represented
	parties in several key arbitration cases, including American Express v.
	Italian Colors Restaurant, 570 U.S. 228 (2013). And I have represented
	a bipartisan group of 20 Members of Congress, including past members of
	this Committee, in a case at the intersection of these two subjects--
	Ziober v. BLB Resources, 137 S. Ct. 2274 (2017).

	My testimony today makes a few basic points:

	First, USERRA's provisions are essential to protecting reservists
	and National Guard members--and thus to protecting the Nation as a
	whole. USERRA has never been more important than it is today. Since
	September 11th, our military has relied heavily on reservists and
	National Guard members to defend us at home and abroad. These
	servicemembers work civilian jobs, while simultaneously devoting
	countless hours to ensuring military readiness so they can be deployed
	at a moment's notice. USERRA helps them balance their civilian lives
	with their military responsibilities, providing a broad set of
	substantive and procedural protections.
	In doing so, USERRA also helps fulfill its primary goal: ``to
	encourage noncareer service in the uniformed services by eliminating or
	minimizing the disadvantages to civilian careers and employment which
	can result from such service.'' 38 U.S.C. Sec. 4301(a). As a Senate
	Report put it in 2008: ``Because the National Guard and Reserves have
	become an essential part of the military's operational force, it is
	imperative that employers comply with USERRA.''
	But employers often fail to comply with USERRA. And when that
	happens, Congress has given servicemembers the tools to protect
	themselves: They can go straight to court. There, they can shine a
	light on their employer's practices, make arguments to a neutral judge
	and a jury of their peers, and obtain a written decision that can be
	appealed, if necessary, and reviewed by the political branches to
	ensure the proper development of the law. But none of that will happen
	if they are forced, against their will, into secret arbitration.

	Which leads to point two: Forced arbitration threatens reservists
	and National Guard members--stripping them of their freedoms and
	immunizing violations of their rights--and thus threatens the Nation as
	a whole. Even as USERRA has grown in importance, it has never been more
	at risk than it is today. When USERRA was enacted in 1994, forced
	arbitration was barely a thing. Now it's everywhere. Big corporations
	have learned from their lawyers that they can escape public
	accountability for violating the law simply by inserting fine print
	into their take-it-or-leave-it contracts. As a result, getting a job
	increasingly requires checking one's rights at the door: More than half
	of nonunion private-sector employees in the United States--over 60
	million American workers--are now subject to forced arbitration.
	Servicemembers are no exception. Despite strong statutory language
	to the contrary, several courts have held that (as currently written)
	USERRA permits employers to impose forced arbitration on
	servicemembers. That is incompatible with USERRA's text and purpose.
	But more than that: It is immoral and unwise. So it is of vital
	importance that Congress clarify what should already have been clear:
	forced arbitration has no place in USERRA.

	Third, this is not a partisan issue. Overwhelming majorities of
	Democrats, Republicans, and independents--80 percent or more of each--
	support federal legislation to end forced arbitration across the board.
	But if there's any area where those numbers should approach total
	agreement, it is for the hundreds of thousands of patriots who risk
	their lives in service to our country.
	If nothing else, basic fairness dictates as much. These men and
	women fight for our freedom and for our Constitution. The least we can
	do is preserve their freedom to decide for themselves how to protect
	their own interests, and their constitutional rights to a day in court
	and a civil trial by jury. Forced arbitration is the opposite of these
	bedrock values. As the Bush Department of Defense observed in 2006:
	``Waiver isn't a matter of `choice' in take-it-or-leave-it contracts of
	adhesion.'' And the very reason the Constitution has a Bill of Rights
	in the first place is because the original document lacked a right to a
	civil jury trial. As John Adams once said: ``[R]epresentative
	government and trial by jury are the heart and lungs of liberty.
	Without them we have no other fortification against being ridden like
	horses, fleeced like sheep, worked like cattle and fed and clothed like
	swine and hounds.'' We should all be able to agree that, if anyone
	deserves constitutional fortification against such a fate, it's the men
	and women who voluntarily serve in our Nation's military.
	But eliminating forced arbitration for USERRA claims isn't just
	about fairness to individual servicemembers; it's also about empowering
	them as a group and protecting our country as a whole. The reality (and
	this is backed up by empirical data) is that forced arbitration doesn't
	channel cases into a better system for resolving disputes. It
	extinguishes cases altogether. And for those precious few cases that
	actually get arbitrated, the secret nature of the proceeding means
	that, even if the servicemember can beat the odds and prevail, no one
	else will benefit. No one will become aware of the unlawful practice or
	the fact that they might have a claim. Nor will Congress have any idea
	about how the statute is being applied in such proceedings, and hence
	whether it needs to be strengthened or amended. Add it all up and the
	upshot is plain: Forced arbitration badly undermines compliance with
	USERRA.
	And ultimately, it makes us less safe. USERRA is critical to
	military recruiting and retention efforts. ``If individuals lack
	confidence that their USERRA rights will be respected or enforced, they
	will be less likely to join or continue to serve in the Armed Forces,
	especially in the Reserve Forces.'' S. Rep. No. 110-449, at 24 (2008).
	Congress must act and reverse that trend.

	I.

	Congress has long recognized that when someone puts on a uniform to
	serve in our military, we owe them certain obligations in return. One
	of the most basic obligations is the assurance that, when they have
	discharged their duties, they will be able to return to their jobs
	without being penalized for serving their country--an obligation, in
	other words, ``to compensate for the disruption of careers and the
	financial setback [from] military service.'' 140 Cong. Rec. S7670-71
	(June 27, 1994) (statement of Sen. Rockefeller).
	To make good on this solemn obligation--and to advance a ``national
	policy to encourage service in the United States Armed Forces,'' H.R.
	Rep. No. 448, 105th Cong., 2d Sess. 2 (1998)--Congress has repeatedly
	expanded and strengthened workplace protections in ``a long line of
	federal veterans' rights laws enacted'' since World War II. DeLee v.
	city of Plymouth, Ind., 773 F.3d 172, 174 (7th Cir. 2014). The most
	recent and comprehensive of these statutes is USERRA, which Congress
	passed in 1994 to ``strengthen existing employment rights of veterans
	of our armed forces.'' Id. at 174-75.
	In the run-up to USERRA, Congress kept a watchful eye on the
	development of this area of law. During the 1970's and 80's, ``more
	than 600 court cases'' were issued interpreting the scope of USERRA's
	predecessor statute and ``occasional confusion resulted.'' 137 Cong.
	Rec. S6058-66, S6065 (May 16, 1991) (Statement of Sen. Specter).
	Congress eventually concluded that the existing statute was too
	``complex and difficult to understand,'' 139 Cong. Rec. H2203-02, H2209
	(May 4, 1993), and was ``sometimes ambiguous, thereby allowing for
	misinterpretations,'' H.R. Rep. 103-65(I), at 18 (1993). These
	misinterpretations took too narrow a view of the law, thwarting the
	ability of veterans and reservists to vindicate their rights. As
	Senator Rockefeller explained in 1993: ``over the last 53 years the
	[law] has become a confusing and cumbersome patchwork of statutory
	amendments and judicial constructions that, at times, hinder the
	resolution of claims.'' 139 Cong. Rec. S5181-91, S5182 (Apr. 29, 1993).
	Congress felt the need ``to restate past amendments in a clearer manner
	and to incorporate important court decisions interpreting the law,''
	while correcting the misinterpretations. 137 Cong. Rec. S6035, S6058
	(May 16, 1991) (statement of Sen. Cranston).
	The result was USERRA. Enacted just three years after the Persian
	Gulf War served as a fresh reminder of the urgent need for reform, the
	statute sought to ``clarify, simplify, and, where necessary, strengthen
	the existing veterans' employment and reemployment rights provisions.''
	H.R. Rep. No. 103-65(I) at 18. Its text identifies three core
	objectives: (1) ``to encourage noncareer service in the uniformed
	services by eliminating or minimizing the disadvantages to civilian
	careers and employment which can result from such service,'' (2) to
	``provid[e] for the prompt reemployment of such persons upon their
	completion of such service,'' and (3) ``to prohibit discrimination
	against persons because of their service.'' 38 U.S.C. Sec. 4301(a).
	These objectives have taken on ``particular interest'' and importance
	in the years since USERRA's passage ``because of the large number of
	reservists [that were] called up for military duty as a result of the
	conflicts in Iraq and Afghanistan.'' Gordon v. Wawa, Inc., 388 F.3d 78,
	79-80 (3d Cir. 2004); see Army Reserve: A Concise History, Office of
	Army Reserve History 15 (2013), https://perma.cc/3UHS-D5UN (noting that
	many hundreds of thousands National Guard members and reservists have
	served on active duty in the War on Terror).
	USERRA seeks to accomplish its broad objectives by establishing a
	broad set of substantive and procedural rights. Substantively, the
	statute guarantees servicemembers the right to be promptly reemployed
	upon return from military service, to be free from discrimination based
	on military service, to take military leave from civilian jobs, and to
	receive (while on such leave) any benefits that their employer provides
	to employees on comparable forms of leave. 38 U.S.C. Sec. Sec. 4311,
	4112, 4113, 4316. Further, unlike most federal employment statutes,
	USERRA applies to all public and private employers in the United
	States, regardless of their size. Id. Sec. Sec. 4303(4), 4314(a), (d).
	To make these rights real, Congress created a ``broad remedial
	scheme.'' Davis v. Advoc. Health Ctr. Patient Care Express, 523 F.3d
	681, 684 (7th Cir. 2008). The scheme is premised on the idea that the
	best way to protect servicemembers is to empower them to protect
	themselves. USERRA doesn't require soldiers to first plead their case
	to a bureaucrat in Washington, DC, or otherwise exhaust administrative
	remedies. To the contrary, it authorizes them to go straight to court,
	to ``commence an action for relief'' in any district where their
	private employer has a place of business, 38 U.S.C. Sec. 4323(a)(3),
	(b)(3), (c)(2), and ``authorize[s] suits against State employers.''
	Torres v. Tex. Dep't of Pub. Safety, 142 S. Ct. 2455, 2466 (2022).
	USERRA also forbids the assessment of fees or costs, id. Sec.
	4323(h)(1), and has no statute of limitations, id. Sec. 4327(b). And,
	on top of all this, Congress included a robust anti-waiver provision,
	barring enforcement of ``any'' contract or State law ``that reduces,
	limits, or eliminates in any manner any right or benefit provided by
	[USERRA].'' Id. Sec. 4302(b). Congress intended for this provision to
	apply to both substantive and procedural rights, ``including the
	establishment of additional prerequisites to the exercise of any
	[statutory] right'' or benefit. Id.
	These expansive substantive and procedural provisions don't just
	protect our servicemembers. They also protect our country. Experience
	has shown that, at any point, the United States may be required to wage
	war anywhere in the world. Experience has also shown that creating a
	massive peacetime standing army, backed by a national draft, is
	undesirable and infeasible. So our military has instead turned (with
	ever increasing reliance) to reservists and National Guard members to
	ensure that we have the fighting force necessary to meet modern
	challenges and defend against global threats.
	Today, about 800,000 people--nearly half the country's two million
	servicemembers--are reservists or National Guard members. These people
	make enormous personal sacrifice for our country. Most days, they go
	about their lives like anyone else--working their day jobs, caring for
	their families, worried about their finances, volunteering in their
	communities, and so on. But they're also trained soldiers who balance
	their roles as civilians with ongoing military obligations that allow
	them to stand ready to be called into active duty. By doing so, they
	``provide[] the mechanism for manning the Armed Forces of the United
	States.'' Ala. Power Co. v. Davis, 431 U.S. 581, 583 (1977).
	That's where USERRA comes in: To convince people to shoulder these
	burdens and sign up for the reserves, Congress has recognized that we
	must offer them some assurances in return. USERRA is indispensable to
	this effort: ``Because the National Guard and Reserves have become an
	essential part of the military's operational force, it is imperative
	that employers comply with USERRA. . . . . If individuals lack
	confidence that their USERRA rights will be respected or enforced, they
	will be less likely to join or continue to serve in the Armed Forces,
	especially in the Reserve Forces.'' S. Rep. No. 110-449, at 24 (2008);
	see also S. Rep. No. 104-371, at 27-28 (1996) (similar); H.R. Rep. No.
	105-448, at 2 (1998) (emphasizing that USERRA is ``particularly
	important today to such persons who are integral to this country's
	defense'' because ``the Guard and Reserve are frequently called to
	active duty to carry out missions integral to the national defense'').
	Undermining USERRA thus ``threaten[s] not only a long-standing policy
	protecting individuals' employment rights, but also raise[s] serious
	questions about the United States' ability to provide for a strong
	national defense.'' H.R. Rep. No. 105-448, at 5-6.

	Or as counsel for the United States told the U.S. Supreme Court
	just last year:

	``[Reservists and National Guard members] never been more
	important to the military than they are right now.

	And one of the first questions that [a prospective reservist]
	will ask when they're considering whether to join the military
	is, well, do I get to keep my job? You know, does my employer
	have to let me take leave for training exercises or be
	deployed?

	And it really does matter in the real world for the Army to be
	able to tell them, yes, your employer does have to do that. In
	fact, . . . the brochure that the Army gives to its recruits
	lists the USERRA protections as part of the incentive package
	that they receive to join the military. And it would matter a
	great deal in the real world if it was harder for the United
	States to recruit Guardsmen and Reservists for the military.
	Obviously, . . . the national security needs are unpredictable,
	and the government doesn't know when it's going to need to
	deploy troops overseas, and being able to have a supply . . .
	of forces to defend the Nation is one of the most existential
	jobs of the Federal Government in the first place.''

	Tr. of Oral Argument in Torres v. Tex. Dep't of Pub. Safety, at 67-
	68.

	II.

	The War on Terror isn't the only pertinent development in the years
	since USERRA's passage. Since 1994, many employers have begun quietly
	stripping their employees (including their servicemember employees) of
	their legal rights through forced arbitration. These clauses are added
	to the fine print of take-it-or-leave-it form contracts and require
	employees to give up their right to a day in court and instead pursue
	their cases in forced arbitration. Companies write these clauses in
	their favor, picking their preferred arbitral forum. The arbitrators
	are often selected by the companies (or else have a financial incentive
	to side with them to secure their business in the future). Arbitrators
	also conduct their work in secret, and their decisions are exceedingly
	difficult to reverse in court given the highly deferential standard of
	judicial review.
	A few years ago, the Economic Policy Institute estimated that more
	than half of nonunion private-sector employees in the United States are
	now subject to forced arbitration. See Alexander J.S. Colvin, The
	growing use of mandatory arbitration: Access to the courts is now
	barred for more than 60 million American workers, Economic Policy
	Institute (April 6, 2018), https://perma.cc/A3FZ-7LLJ/. That's roughly
	60 million American workers--a number that has been steadily rising
	each year. Further, forced arbitration is more common in low-wage
	workplaces and among larger employers and has disproportionate effects
	on women and Black employees. Id.
	Although Congress might not have had forced arbitration firmly in
	mind when it enacted USERRA, there should be little doubt that forced
	arbitration is utterly incompatible with the statute. Yet several
	courts of appeals have held otherwise. Relying on a 1925 law called the
	Federal Arbitration Act--and more recent Supreme Court decisions that
	have interpreted that statute far beyond its text and original
	meaning--these courts have held that USERRA permits employers to force
	servicemembers out of court and into arbitration. See Ziober v. BLB
	Resources, 839 F.3d 814, 816 (9th Cir. 2016) (citing cases).
	One of these cases involved was brought by a Navy reservist named
	Kevin Ziober. In 2012, 4 years into his service, Lieutenant Ziober was
	called into active duty--a 1-year deployment to Afghanistan. He
	expected to fulfill his service obligations and then return to work
	once he returned home. On his last day of work before being deployed,
	Lieutenant Ziober's employer threw him an office-wide party to
	celebrate his military service. Dozens of colleagues, as well as the
	company's CEO and president, turned out for the celebration. They
	watched as he ``dug into a cake decorated with an American flag and the
	words, `Best Wishes Kevin' in red, white and blue.'' Margot Roosevelt,
	Navy reservist wants a day in court, not arbitration, OC Register, June
	6, 2016, http://bit.ly/2qAaOuu. They feted him with balloons, cards,
	and a gift--prompting him to text family members: ``What a great
	sendoff!'' Id. But just hours after the party ended, Lieutenant Ziober
	was summoned to a meeting with the head of human resources, as well as
	his supervisor and the company's attorney. They told him that he was
	being fired. Then, when he tried to enforce his USERRA rights in court
	upon returning home, his employer compounded the indignity by telling
	him that he would have to arbitrate his claims instead.
	This is plainly not what Congress envisioned when it enacted
	USERRA. But the good news is that Congress can do something about that.
	It can do what it has done many times in the past: strengthen and
	clarify the statute to fix judicial decisions that have incorrectly
	limited servicemembers' rights.

	III.

	Congress shouldn't hesitate to do so. When Americans are polled
	about forced arbitration, it's no contest: they hate it. And despite
	the hyper-partisan era in which we now live, this sentiment is widely
	shared by voters across the political spectrum. Overwhelming majorities
	of Republicans, Democrats, and independents support federal legislation
	to end forced arbitration in general. In this context, in particular,
	public opinion likely approaches unanimity.
	And for good reason: For one thing, eliminating forced arbitration
	for servicemembers is a moral imperative. Our servicemembers protect
	our freedom and defend our Constitution. It is not too much to ask that
	we protect their freedom and defend their constitutional rights.
	For another thing, eliminating forced arbitration would help to
	ensure that USERRA's rights are made real. It would empower
	servicemembers to make their own choices about how to enforce their own
	rights and whether to avail themselves of the procedural protections
	under the statute. It would also empower them to protect the interests
	of their fellow servicemembers--whether by serving as a representative
	plaintiff in a class action, by seeking to enjoin an unlawfulpolicy, by
	creating judicial precedent to govern future cases, or by providing a
	public record of illegality that can be used for the benefit of others.
	To strip servicemembers of their ability to serve their peers in these
	ways, as forced arbitration does, only compounds the harms that it
	inflicts. And it only further weakens USERRA--inhibiting development of
	the law, allowing violations to go unnoticed and unpunished, and
	reducing compliance.
	For still another, eliminating forced arbitration would ensure that
	small-dollar cases, in particular, can be vindicated. For these cases,
	especially, forced arbitration cuts off compensation and deterrence.
	This can be seen empirically by looking the results that people
	actually obtain out of arbitration. In the consumer context, for
	example, data compiled by the Consumer Financial Protection Bureau
	shows that few consumers with low-value cases are able to successfully
	advocate for themselves when forced to seek individual relief (which is
	what forced arbitration typically requires). And when I say ``few,'' I
	mean that in an absolute sense, not a relative sense: Of the hundreds
	of millions of consumers that interact with banks, credit cards,
	student loans, payday loans, debt collectors, and other companies, only
	four of them (yes, you read that right) have won affirmative relief on
	cases of $1,000 or less in arbitration. By contrast, between 2008 and
	2012, at least 34 million consumers of the same universe of companies
	received compensation through class actions. More than 400 consumer
	financial class-action settlements garnered more than $2 billion in
	cash relief for consumers and more than $600 million in in-kind relief.
	And those numbers don't capture the additional benefits of industry-
	changing injunctions and deterrence of future bad practices.
	Finally, forced arbitration of USERRA claims undermines our
	national defense. As the military has emphasized, USERRA is critical to
	its recruiting and retention efforts. ``[T]he brochure that the Army
	gives to its recruits lists the USERRA protections as part of the
	incentive package that they receive to join the military,'' so ``it
	would matter a great deal in the real world'' if those protections
	continue to be weakened through forced arbitration, by making it
	``harder for the United States to recruit Guardsmen and Reservists for
	the military.'' Tr. of Oral Argument in Torres, at 67-68. ``If
	individuals lack confidence that their USERRA rights will be respected
	or enforced, they will be less likely to join or continue to serve in
	the Armed Forces, especially in the Reserve Forces.'' S. Rep. No. 110-
	449, at 24 (2008). Congress shouldn't let that happen. It's long past
	time to step in and stop this slide in its tracks.
	If it did so, this would not be the first time that Congress has
	acted to protect national security by ensuring that servicemembers are
	not subject to forced arbitration. The bipartisan Military Lending Act
	prohibits forced arbitration in consumer credit contracts with
	servicemembers. See 10 U.S.C. Sec. 987(e) (making certain extensions
	of credit to servicemembers unlawful where ``the creditor requires the
	borrower to submit to arbitration''); id. Sec. 987(f)(1) (making a
	knowing violation a misdemeanor); 80 Fed. Reg. 43559 (July 22, 2015)
	(expanding definition of covered consumer credit and banning
	arbitration clauses in such products). Congress did so at the request
	of the Department of Defense, which found that this was a key part of
	protecting servicemembers from predatory lending--an issue that had
	threatened national security and war readiness. See Report on Predatory
	Lending Practices Directed at Members of the Armed Forces and their
	Dependents 7, 14, 21, 51 (Aug. 9, 2006). When Department of Defense
	expanded the scope of the Military Lending Act's prohibition of forced
	arbitration to include a broader array of financial services, it
	reaffirmed that the personal financial well-being of service members is
	``at the core'' of servicemember retention and maintaining national
	military readiness. 80 Fed. Reg. 43600 (July 22, 2015).
	Congress should make a similar judgment as to the rights provided
	by USERRA. Doing so would simply clarify what the statute should
	already mean, and restore servicemembers' ability to choose to enforce
	their rights in court, as envisioned by a bipartisan Congress. And it
	would impose no burden to, or cost on, the federal government. Congress
	should act without delay.

	Statements for the Record

	----------


	Prepared Statement of Department of Defense

	Chairman Van Orden, Ranking Member Levin, distinguished members of
	the Committee, thank you for the opportunity to present the Department
	of Defense statement for the record for this oversight hearing on the
	Uniformed Services Employment and Reemployment Rights Act (USERRA).
	Across America, our Guard and Reserve Service members are trained,
	equipped, and ready with the critical capabilities needed to compete
	globally across a full range of military operations and to provide
	support to their local communities. In today's complex security
	environment, these citizen Service members leverage their professional
	skills while serving in uniform, adding value and depth to America's
	military force with skills, education, and expertise acquired in the
	private sector. These Service members are also teachers, first
	responders, doctors, lawyers, academics, scientists, engineers, cyber
	specialists, transportation specialists, and administrators at all
	levels. These Service members depend on the support of their families
	and communities, especially their civilian employers, to thrive in
	their military roles.
	More than 50 years ago, the Department of Defense recognized the
	value of the support civilian employers provide to military employees,
	and in 1972 created the Employer Support of the Guard and Reserve
	(ESGR) office to gain and maintain employer support for an all-
	volunteer Force. Over the decades since, ESGR's mission expanded to
	include educating employers and Service members about the rights and
	responsibilities of USERRA. The Act is intended to ensure these Service
	members are not disadvantaged in their civilian careers because of
	their service, are promptly reemployed in civilian jobs upon their
	return from duty, and are not discriminated against in employment
	because of military status or obligations.
	In support of the Secretary of Defense's priority to ``Take Care of
	Our People,'' ESGR accomplishes its mission through effective military
	and employer outreach services, employer recognition programs, and a
	broad range of assistance services. These services provide education on
	the applicability of USERRA and emphasize the importance of the
	National Guard and Reserve in our Nation's defense. Ensuring Service
	members understand their rights and benefits under USERRA is a key
	example of implementing the Secretary's priority to ``Take Care of Our
	People.''
	In recent years, the Department has leaned heavily on our Guard and
	Reserve, such as during the COVID-19 pandemic when those Service
	members were critical in supporting public health initiatives and
	maintaining services across the country. As Guard and Reserve Service
	members have played increasingly important roles in protecting our
	Nation, it is equally important that their employment rights are
	protected. Educating and informing Service members and their families
	about USERRA's rights, benefits, and protections is important for the
	Department to recruit and retain the all-volunteer Force integrated
	between Active and Reserve components. Propsective Guard and Reserve
	Service members need confidence their civilian careers will not be
	adversely impacted by their uniformed service responsibilities, to
	ensure the Department's reliance on Reserve Component forces can
	support overall mission readiness.
	ESGR plays a central role in protecting those rights, recognizes
	and supports employers to honor those rights. It works as a volunteer-
	centric program, with a nationwide network of over 2,800 dedicated
	volunteers with diverse backgrounds, who assist with employment
	concerns of Guard and Reserve Service members. These volunteers
	represent all walks of life; business executives, small business
	owners, civic leaders, retired military members, and patriotic citizens
	who have never served in the Armed Forces, but want to give back. In
	Fiscal Year 2022, ESGR volunteers served more than 180,000 hours to
	provide education and increase awareness on the rights and
	responsibilities under USERRA, reaching 125,496 employers and 234,095
	Service members.
	ESGR's proactive efforts to increase awareness of related laws and
	DoD policies helps prevent disputes between Service members and their
	employers. By preventing disagreements through reduced confusion,
	ESGR's efforts serve as mission enablers by allowing Service members to
	concentrate on military service requirements. ESGR engages with Guard
	and Reserve leadership and appropriate staff elements through formal
	information sharing venues (e.g., office calls with Guard and Reserve
	Chiefs) and ad hoc communication in support of their readiness efforts.
	This sustained coordination at the staff level is critical to mutual
	success.
	In addition, ESGR's Customer Service Center employs trained subject
	matter experts who provide prompt, telephonic and email responses to
	Service members and civilian employers on USERRA-related matters. In
	Fiscal Year 2022, ESGR responded to more than 13,000 inquiries and
	provided free confidential mediation services in over 1,100 cases with
	a 76 percent resolution rate. Nearly 400 ESGR volunteer ombudsmen
	across the country assist employers and Service members daily with
	USERRA matters, helping to resolve civilian employment conflicts that
	arise because of military service. These volunteers, along with ESGR
	headquarters staff, provide assistance, at no cost, to help Service
	members resolve workplace issues and improve relationships with
	civilian employers.
	ESGR also assists employers by addressing concerns about the
	timing, frequency, and duration of service by connecting employers with
	the appropriate Guard or Reserve points of contact within chain-of-
	command. This could mean assisting a small business employer to contact
	a military commander and request a flexible drill schedule that
	supports their continuity of business operations or ensuring that an
	employer understands the rights of Service members under USERRA.
	Although misunderstanding occasionally exist between employers and
	Reserve Component Service members during military duty, ESGR provides
	assistance to alleviate stress between parties and supports stronger
	communication, through the involvement of military chain-of-command,
	advanced notification of military service, and open-lines of
	communication while the employee is away.
	ESGR's role regarding USERRA is limited to conducting outreach that
	does not conflict with investigations or other legal actions. ESGR
	assistance does not include cases where a Service member files a formal
	complaint with the Department of Labor Veterans' Employment and
	Training Service (DOL VETS) or when a Service member retains private
	legal representation. Regardless of the outcome of an ESGR USERRA
	mediation case, Service members can still file a case with the DOL
	VETS. ESGR and DOL VETS, however, work in collaboration to ensure
	USERRA educational materials are accurate and that all volunteer
	Ombudsmen are properly trained.
	ESGR also offers a robust tiered awards program to recognize the
	many employers who go above what is required by law to support military
	employees. This support includes helping Guard and Reserve families by
	checking in after a natural disaster, sending care packages during an
	extended deployment, and continuing pay and benefits when a Reservist
	is activated. Most employer awards originate from Patriot Award
	nominations, submitted by Service members who recognize supportive
	supervisors. During Fiscal Year 2022, ESGR recognized 6,871 supervisors
	with Patriot Awards. ESGR is also currently reviewing 1,863 nominations
	for the Secretary of Defense Employer Support Freedom Award, the
	Secretary of Defense's highest honor bestowed on employers. The Freedom
	Award is presented annually to a maximum of 15 large, small, and
	public-sector employers who have demonstrated exceptional support to
	Guard or Reserve employees.
	In addition, during Fiscal Year 2022, ESGR obtained 5,245
	Statements of Support from employers across the Nation. The intent of
	the program is to increase employer support through encouragement to
	act as advocates for employee participation in the military. Service
	members who know they have employer support, are more likely to stay in
	the Service and help recruit others. Employers who sign Statements of
	Support pledge that they will:

	<bullet> Fully recognize, honor, and comply with the USERRA.

	<bullet> Provide managers and supervisors with the tools they need
	to effectively manage employees who serve in the National Guard and
	Reserve.

	<bullet> Appreciate the values, leadership, and unique skills
	Service members bring to the workforce, and encourage opportunities to
	hire Guardsmen, Reservists, transitioning Service members, and
	Veterans.

	<bullet> Continually recognize and support our country's Service
	members and their families, in peace, in crises, and in war.

	CONCLUSION:

	In the two decades since September 11, 2001, over one million Guard
	and Reserve Service members have mobilized as part of the Total Force.
	Currently, over 30,000 are deployed to 23 countries in direct support
	of Geographic Combatant Commands, while stateside Service members
	directly support local communities through service related to natural
	disasters, declared emergencies, and more. ESGR and the Department of
	Defense as a whole remain committed to our National Guard and Reserve
	Service members and their civilian employers as they deal with the
	challenges and complexities of balancing civilian and military life.
	Taking care of our Service members is one of Secretary Austin's top
	priorities. As important members of the Total Force, the Department
	will continue to provide our Reserve Component Service members and
	their families with the resources, services, and support they need.
	In closing, Mr. Chairman, the Department of Defense thanks you, the
	Ranking Member, and the members of this Subcommittee for your
	outstanding and continuing support of the men and women who proudly
	wear the uniform in defense of our great Nation.

	[all]
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