07/17/12 On Monday the U.S. Attorney for the Northern Indiana District filed a lawsuit against the City of Plymouth claiming the city has failed to pay a city police officer his longevity pay after he returned from an 8 month tour in Afghanistan as a U.S. Air Force Reservist.
The lawsuit alleges Plymouth violated the employment rights of Air Force Reservist Robert DeLee under the Uniformed Services Employment and Reemployment Rights Act of 1994. DeLee was on active duty with the Air Force between September 2010 and May 2011. He has been a patrolman with the Plymouth Police Department since 1999.
The amount of longevity pay in question is $1,800 according to City Attorney Sean Surrisi.
The City has been aware of the pending lawsuit for the past several months and released a statement in April on the case. The city’s response to DeLee’s claim says “The city treated the employee in question no better of no worse than any non-military employee on a leave of absence.”
City of Plymouth Subjected to Differing Local, State and Federal Mandates Regarding Military Service Member’s Longevity Pay: Department of Justice May Sue
Plymouth, Indiana – April 30, 2012 – A City of Plymouth employee who also serves as a U.S. Military Reserve Officer claims entitlement to City longevity pay for time spent on leave of absence from the City serving in the reserve. Longevity pay is additional compensation that the City provides to qualified employees as an incentive to remain in service to the City. For employees on a leave of absence, City ordinance states that longevity pay will be prorated based on the number of months of actual work performed during the year. The employee in question received prorated longevity pay for time actually worked, but also claims entitlement to longevity pay for the entire year under the terms of a federal statute.
The Uniformed Services Employment and Reemployment Rights Act (USERRA) is a federal law enacted in 1994 that protects civilian job rights and benefits for veterans and reserve troops who may be absent from their jobs during military service. The Act applies to both governmental and private employers. USERRA provides that it supersedes any conflicting local law that “reduces, limits or eliminates” any rights or benefits of a service member. The U.S. Department of Labor has its own rules and regulations interpreting USERRA, which provide, in part, that “an employee who is absent from a position of employment by reason of service is not entitled to greater benefits than would be generally provided to a similarly situated employee on non-military furlough or leave of absence.”
The City maintains that its ordinance does not conflict with USERRA and that the employee in question was treated no better or no worse than any non-military employee on a leave of absence. “The City complies with all federal, state, and local laws when figuring payroll,” said Plymouth Clerk-Treasurer Toni Hutchings. She also provided, “Our ordinance has been in effect since 1989 and states that the proration of longevity pay is ‘in the interest of fiscal responsibility and fairness.’”
Also concerning to City officials is the potential application of Indiana’s Ghost Employment statute. That statute generally prohibits a governmental entity from paying an employee for work that has not been performed. Questions arise as to whether making the requested longevity payment would violate that statute.
“As the son of a veteran, I’m very thankful for the service of the men and women in the military, and I’m particularly proud of our Plymouth employees who serve,” said Plymouth Mayor Mark Senter. He further stated, “As Mayor, the people of Plymouth have given me a trust to enforce their ordinances and my Administration must prove faithful in serving as well.”
USERRA allows for enforcement actions to be brought on the service member’s behalf by the U.S. Department of Justice (DOJ). DOJ has discussed the matter with the City for some time now and may file suit in the near future, leaving a court to determine whether the longevity pay is due in light of the differing local, state, and federal laws.
