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Download NowWhat happened. Fifteen members of the San Antonio fire department sued
their employer for depriving them of rights they saw as due to them under USERRA.
Most of the firefighters were on military duty for 1 weekend each month and
for 2 full weeks each year.
According to a particular section of USERRA, Section 4311(a), anyone who performs
military service "shall not be denied & any benefit of employment
by an employer on the basis of that & performance." The firefighters
read that section to mean that they should not be denied, quoting from the court
record, "straight and overtime pay, opportunities to earn extra vacation
leave and vacation scheduling flexibility, and opportunities to secure unscheduled
overtime work and job upgrades" while they were on military duty. In other
words, they wanted the city to view them as "constructively present at
work" during their duty stints, as opposed to taking leave.
A federal district court agreed that the city was liable for discriminating
against them according to Section 4311(a), and a subsequent hearing before a
magistrate judge led him to rule that the firefighters were owed retrospective
damages for the 4 years before they filed their complaint. The city appealed
to the 5th Circuit, which covers Louisiana, Mississippi, and Texas.
What the court said. Appellate judges said, in effect, "No, wrong
USERRA section. Look instead at Section 4316(b)(1)." That section refers
specifically to employees who are absent from work due to uniformed service
and specifies that they are to be seen as on leave and entitled to the same
rights and benefits not determined by seniority as are available to employees
on leave for any other reason, such as bereavement or medical reasons. In short,
employees doing military duty deserve equal but not preferential treatment.
Rogers et al. v. City of San Antonio, U.S. Court of Appeals for the 5th
Circuit, No. 03-50588 (12/2/04).
Point to remember: When awarding benefits that are not based on seniority,
don't treat employees in the armed services as "constructively present."
Consider them to be on leave and deserving only what employees on leave for
other reasons are entitled to.