Reservist entitled to full longevity pay despite time away from police force

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The 7th Circuit Court of Appeals held Tuesday that a Plymouth, Indiana, patrolman should receive the $2,700 in longevity pay he is entitled to from the city under an ordinance. The city cut the payment by two-thirds because the man served eight months on activity duty in the U.S. Air Force.

Robert DeLee has been on the police force since April 19, 1999. A city ordinance allows the city to pay police and firefighters longevity pay, a bonus calculated based on years of service. After three years of continuous service, the pay is calculated by multiplying $225 by the number of years of service.

When DeLee was entering his 12th year on the force, he was called to active duty for the Air Force. He has been a reservist since 1997. He served from Sept. 1, 2010, and returned to his job May 11, 2011. Based on another ordinance, the city prorated the amount paid to DeLee to $900 – which reflects the four months he worked during his anniversary year. That ordinance was enacted to save the city money.

DeLee sued, arguing that longevity pay is a seniority-based benefit to which the Uniformed Services Employment and Reemployment Rights Act entitles him in full. The District Court granted Plymouth’s motion for summary judgment, but the 7th Circuit agreed with DeLee.

“Because we conclude that Plymouth’s longevity benefit is more appropriately characterized as a reward for lengthy service, rather than as compensation for work performed the preceding year, USERRA guarantees DeLee a full longevity payment for his twelfth year of employment,” Judge Joel Flaum wrote in Robert D. DeLee v. City of Plymouth, Indiana, 14-1970.

The judges looked at several U.S. Supreme Court cases dealing with returning service members’ claims, including Accardi v. Pennsylvania R.R. Co., 383 U.S. 225 (1966), and Coffy v. Republic Steel Corp., 447 U.S. 191 (1980).

There is no question that a full longevity payment would have accrued but for DeLee’s leave of absence. And the judges rejected Plymouth’s claim that the longevity payments are wages. USERRA guarantees seniority benefits, which include seniority-based bonuses, Flaum wrote.

“[W]e conclude that the original purpose of Plymouth’s longevity pay for police was to reward them for lengthy service and that purpose survived the subsequently enacted proration ordinance,” he wrote.

The case is remanded for further proceedings.


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