Servicemember Rights: Mandatory Arbitration Clauses Have Affected Some Employment and Consumer Claims but the Extent of Their Effects is Unknown

What GAO Found

Mandatory arbitration clauses in civilian employment contracts and consumer agreements have prevented servicemembers from resolving certain claims in court under two laws that offer protections: the Uniformed Services Employment and Reemployment Rights Act of 1994, as amended (USERRA), and the Servicemembers Civil Relief Act, as amended (SCRA) (see figure). Some courts have held that claims involving mandatory arbitration clauses must be resolved with arbitrators in private proceedings rather than in court. Although we reviewed federal court cases that upheld the enforceability of these clauses, Department of Justice (DOJ) officials said mandatory arbitration clauses have not prevented DOJ from initiating lawsuits against employers and other businesses under USERRA or SCRA. However, DOJ officials noted that these clauses could affect their ability to pursue USERRA claims against private employers on behalf of servicemembers. Servicemembers may also seek administrative assistance from federal agencies, and mandatory arbitration clauses have not prevented agencies from providing this assistance. For example, officials from DOJ, as well as the Departments of Defense (DOD) and Labor (DOL), told us they can often informally resolve claims for servicemembers by explaining servicemember rights to employers and businesses.

Examples of Employment and Consumer Protections for Servicemembers

Note: USERRA generally provides protections for individuals who voluntarily or involuntarily leave civilian employment to perform service in the uniformed services. SCRA generally provides protections for servicemembers on active duty, including reservists and members of the National Guard and Coast Guard called to active duty.

Data needed to determine the prevalence of mandatory arbitration clauses and their effect on the outcomes of servicemembers’ employment and consumer claims under USERRA and SCRA are insufficient or do not exist. Officials from DOD, DOL, and DOJ told us their data systems are not set up to track these clauses. Further, no data exist for claims settled without litigation or abandoned by servicemembers. Finally, data on arbitrations are limited because they are often private proceedings that the parties involved agree to keep confidential.

Why GAO Did This Study

Servicemembers are among millions of Americans who enter into contracts or agreements with mandatory arbitration clauses. For example, these provisions may be included in the contracts servicemembers sign when they enter the civilian workforce, obtain a car loan, or lease an apartment. These contracts generally require disputes to be resolved in private proceedings with arbitrators rather than in court.

Due to concerns these clauses may not afford servicemembers certain employment and consumer rights, Congress included a provision in the National Defense Authorization Act for Fiscal Year 2020 for GAO to study their effects on servicemembers’ ability to file claims under USERRA and SCRA. This report examines (1) the effect mandatory arbitration has on servicemembers’ ability to file claims and obtain relief for violations of USERRA and SCRA, and (2) the extent to which data are available to determine the prevalence of mandatory arbitration clauses and their effect on servicemember claims.

GAO reviewed federal laws, court cases, and regulations, as well as agency documents, academic and industry research, and articles on the claims process. GAO interviewed officials from DOD, DOL, DOJ, and other agencies, academic researchers, and a range of stakeholders representing servicemembers, businesses, attorneys, and arbitration firms. GAO also identified and evaluated potential sources of data on servicemembers’ employment and consumer claims collected by federal agencies and the firms that administer arbitrations or maintained in court records.

For more information, contact Kris T. Nguyen at (202) 512-7215 or NguyenTT@gao.gov.

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    From 2016 through 2019, the Department of Defense (DOD) conducted or sponsored at least 11 classified or sensitive studies on contested mobility— the ability of the U.S. military to transport equipment and personnel in a contested operational environment. The studies resulted in more than 50 recommendations, and DOD officials stated they believed that some of the recommendations had been implemented. However, officials did not know the exact disposition of the recommendations, as they are not actively tracking implementation activities. Further, no single DOD oversight entity evaluated the studies' recommendations and tracked implementation across the department. As a result, DOD may be missing an opportunity to leverage existing knowledge on mobility in contested environments across organizations, and strengthen its mobility efforts for major conflicts as envisioned in the National Defense Strategy. DOD has updated aspects of wargame exercises and mobility training to prepare for a contested environment, but has not updated training for the surge sealift fleet—ships owned by DOD and the Department of Transportation's Maritime Administration (MARAD) and crewed by contracted mariners. These crews are primarily trained and qualified to operate the ship, but receive limited contested mobility training. While DOD has updated air mobility training and other aspects of mobility training, sealift crew training requirements have not been updated by DOD and MARAD to reflect contested environment concerns because DOD has not conducted an evaluation of such training. Since sealift is the means by which the majority of military equipment would be transported during a major conflict, it is important that crews be trained appropriately for contested mobility to help ensure that ships safely reach their destinations and complete their missions. C-17 Performing Defense Maneuvers DOD has begun to mitigate contested environment challenges through improved technology and related initiatives. The Navy is acquiring improved technologies to deploy on surge sealift ships and replacement ships. The Air Force is equipping current mobility aircraft (see photo above) with additional defensive technologies and planning for the development of future replacement aircraft. According to U.S. Transportation Command, the command is revising its contracts with commercial partners to address cyber threats, and funding research and development projects that address contested mobility concerns. Many of these efforts are nascent and will take years to be put in place. China and Russia are strengthening their militaries to neutralize U.S. strengths, including mobility—the ability of U.S. military airlift and air refueling aircraft and sealift ships to rapidly move equipment and personnel from the United States to locations abroad to support DOD missions. Senate Report 116-48 included a provision for GAO to review DOD's ability to operate in a contested mobility environment. This report assesses the extent to which DOD has studied contested mobility and tracked the implementation of study recommendations, assesses the extent to which DOD has revised its training to incorporate contested mobility challenges, and describes the technologies that DOD uses to mitigate contested mobility challenges. GAO identified contested mobility studies conducted or sponsored by DOD; evaluated DOD's processes for monitoring implementation of study recommendations; analyzed training and exercise documents from DOD combatant commands, the Air Force, and the Navy; and reviewed DOD plans for technological improvements to its mobility forces. GAO recommends that DOD designate an oversight entity to track the implementation of study recommendations, and that DOD and MARAD evaluate and update sealift training. DOD and the Department of Transportation concurred or partially concurred with each recommendation. GAO believes each recommendation should be fully implemented, as discussed in the report. For more information, contact Cary Russell at (202) 512-5431 or RussellC@gao.gov.
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  • Federal Protective Service: Better Documented Cost Estimates Could Help Stakeholders Make Security Decisions
    In U.S GAO News
    What GAO Found The Federal Protective Service (FPS) provides security and protection at more than 9,000 federal facilities. FPS performs a variety of security activities in conjunction with the General Services Administration (GSA), which functions as the landlord at most of these facilities, and with the federal agencies, which occupy these facilities as tenants. These stakeholders can provide important perspectives on FPS's performance of its key activities (see figure). The Federal Protective Service's Three Key Security Activities Stakeholders expressed satisfaction with many aspects of FPS's performance of key activities but also identified aspects where they thought FPS could make improvements. For example, stakeholders expressed satisfaction with the professionalism of FPS personnel and commended FPS's coordination in responding to law enforcement incidents. However, some stakeholders said they would like to see FPS oversee contract guards more often. In addition, many stakeholders said that FPS could improve the cost estimates in its security assessment reports. GAO's review of FPS's Facility Security Assessment reports found that cost estimates for the recommended security measures lacked information that could help stakeholders make decisions to accept or reject FPS's recommendations. Specifically, recent reports for 27 selected buildings did not document (1) the assumptions FPS made to produce the cost estimates (e.g., the scope of work) and (2) the sources FPS used to create the estimate. In one report, for example, FPS recommended additional fencing and provided a cost estimate with an exact dollar amount. However, FPS did not document the assumptions it used to develop the estimate, such as the height and linear feet of fence or the fencing material. According to GAO's Cost Estimating and Assessment Guide , cost estimates should provide information about the assumptions and sources used to develop an estimate so that decision-makers can understand the level of uncertainty around the estimate. By providing detailed information about the cost estimates in Facility Security Assessment reports, FPS could better inform stakeholders and potentially increase implementation of recommended security measures, designed to increase the safety of people and property at these facilities. Why GAO Did This Study Over one million employees and a range of visitors seeking services at federal facilities depend on FPS to ensure the safety of both people and property at these locations. This report examines stakeholders' perspectives on FPS's performance of three key activities. GAO identified key activities from FPS data on work hours. GAO held discussion groups with stakeholders from 27 randomly selected facilities where FPS provided guard services and responded to incidents in fiscal year 2019 and analyzed stakeholder responses from 2017-2019 to GSA's and FPS's feedback instruments. These sources of stakeholder views are not representative but collectively provide insight into stakeholders' satisfaction with how FPS is performing key activities. GAO also reviewed agency documents; interviewed FPS officials about FPS's performance; and compared FPS's security assessment reports to criteria in GAO's Cost Estimating and Assessment Guide .
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  • Secretary Antony J. Blinken to U.S. Mission Canada
    In Crime Control and Security News
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  • Largest U.S. Seizure of Iranian Fuel from Four Tankers
    In Crime News
    The Justice Department today announced the successful disruption of a multimillion dollar fuel shipment by the Islamic Revolutionary Guard Corps (IRGC), a designated foreign terrorist organization that was bound for Venezuela. These actions represent the government’s largest-ever seizure of fuel shipments from Iran.
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  • Justice Department Requires Divestiture of Tufts Health Freedom Plan in Order for Harvard Pilgrim and Health Plan Holdings to Proceed With Merger
    In Crime News
    The Department of Justice announced today that it would require Harvard Pilgrim Health Care (Harvard Pilgrim) and Health Plan Holdings (fka Tufts Health Plan) to divest Tufts Health Freedom Plan Inc. (Tufts Freedom), in order to proceed with their merger. Tufts Freedom is Health Plan Holdings’ commercial health insurance business in New Hampshire. The department has approved UnitedHealth Group Inc. (United), as the buyer. Health insurance is an integral part of the American healthcare system, and the proposed settlement will maintain competition for the sale of commercial health insurance to private employers in New Hampshire with fewer than 100 employees.
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  • Man Sentenced to 55 Months in Prison for Violating Sanctions Against Senior Venezuelan Leaders
    In Crime News
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  • Fugitive Charged with Leading Multimillion Dollar Fraud Scheme, Falsifying Evidence, and Tax Crimes
    In Crime News
    An American citizen was charged in two indictments unsealed this week for his alleged participation in an investment fraud scheme in which he allegedly misappropriated $6.1 million in investor-funds, manufactured evidence to mislead an investigation by the Securities and Exchange Commission (SEC) and concealed the proceeds of his fraudulent scheme from the IRS.
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  • North Carolina Tax Preparer Sentenced to Prison for Conspiring to Defraud the IRS
    In Crime News
    A North Carolina return preparer was sentenced today to 15 months in prison for conspiring to defraud the IRS.
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  • On Pride Month
    In Crime Control and Security News
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  • Wrongful billing results in $2.6M settlement and 10-year exclusion from federal health care programs
    In Justice News
    A 46-year-old [Read More…]
  • New York Man Pleads Guilty to Conspiring to File False Returns
    In Crime News
    A resident of Newburgh, New York, pleaded guilty today to conspiracy to defraud the United States, announced Principal Deputy Assistant Attorney General Richard E. Zuckerman of the Justice Department’s Tax Division.
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  • The United States and Costa Rica: Partners in Democracy and Security
    In Crime Control and Security News
    Office of the [Read More…]
  • Owner of Bitcoin Exchange Convicted of Racketeering Conspiracy for Laundering Millions of Dollars in International Cyber Fraud Scheme
    In Crime News
    A Bulgarian national was found guilty today for his role in a transnational and multi-million dollar scheme to defraud American victims through online auction fraud.
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