USERRA Does Not Prohibit Proration Of Longevity Pay

Robert DeLee is a Plymouth, Indiana police officer who is also a reserve officer in the Air Force. DeLee was called up for eight months’ active-duty deployment from September 1, 2010 to May 11, 2011.

The City pays longevity premiums to officers with at least three years of service. At the time of his reserve service, DeLee had worked for the City for 12 years, and was entitled to receive a lump-sum longevity payment of $2,250.00.

The City has an ordinance requiring that longevity pay must be prorated if an employee “is on a leave of absence or who is otherwise not engaged in the active performance of the normal and customary duty of the police department.” When the City prorated his longevity pay, DeLee sued, contending that the City’s ordinance violated the Uniformed Services Employment and Reemployment Rights Act, or USERRA.

A federal court upheld the City’s practices. The Court framed the issue in terms of USERRA’s grant to a reemployed service member of “the same seniority benefits” that would have accrued had the member remained continuously employed. The Court found that “it is undisputed that the City did this by paying DeLee longevity pay at the same rate as if he had 12 years of continuous service. USERRA states that DeLee is not entitled to any benefits to which he would not otherwise be entitled if he had remained continuously employed. It is undisputed that if DeLee had remained continuously employed by Plymouth but taken an eight-month leave for any reason, such as an extended illness, his longevity pay would have been prorated just as it was. Thus, USERRA does not prohibit the City from making a pro-rata reduction to DeLee’s longevity pay for the eight-month period of work he missed while on active duty.”

DeLee v. City of Plymouth, Indiana, 2014 WL 1316870 (N.D. Ind. 2014).