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Police Officers Who are Members of the Reserve and National Guard Should Be Familiar with USERRA

Posted on Wednesday, September 01, 2004 at 12:00PM
Posted by Howard Liberman, Esq.

Imagine this: You are a full-time police officer with 10 years of service. You spend a weekend a month and two weeks during the summer in another uniform as a member of the Reserves or National Guard. Both your full-time and part-time careers were going great until September 11, 2001, when you were activated to fight the War on Terror. You packed your bags, kissed your spouse and kids, and gave notice to your department of your activation. The chief and city manager wished you luck and told you to come back alive.

Fast forward to September 2004. After stops in Afghanistan, Iraq and other places that you cannot speak about, you are released from active duty. You return to patrol. A short time later you take a detective assignment.

Fast-forward again to September 2021. You are 51-years-old and a sergeant, counting down your last few weeks until retirement. You started working in 1991 and are looking forward to a 90 percent retirement under the 3% @ 50 formula. You call PERS, provide your Social Security number and the PERS representative informs you that upon retirement you will receive 81 percent of your pay due to your 27, yes 27, not 30, years of service credit that your agency has paid into PERS. You survived the Taliban and Saddam Hussein, but you nearly have a stroke when the PERS representative repeats this information and tells you that you had a three-year break in service from 2001 to 2004. You reply, “No, I didn’t. I was activated.”

What can you do about this? What should you have done to prevent this?

The Uniform Services Employment and Reemployment Rights Act of 1994 (United States Code, Chapter 43, Part III, Title 38), also known as “USERRA”, was enacted by Congress after the first Gulf War to protect the jobs of National Guard members and reservists who are called to duty. Mobilized reservists are usually informed that USERRA protects their jobs, so that they can return to work when demobilized. What reservists are not always told is that USERRA protects benefits. USERRA specifically allows returning service members who meet eligibility criteria to be treated as if they had been continuously employed for pension purposes.

A demobilized service member can make a USERRA claim through the United States Department of Labor Veterans Employment and Training Service or can bring his own action against his employer under USERRA. Potential remedies available in a USERRA claim are not limited to lost pension time, or a guaranteed return to a job, but also include back pay, lost benefits, corrected personnel files, lost promotional opportunities, retroactive seniority, and restored vacation. Special damages may be available in violations, which are considered willful.

We urge Legal Defense Fund members, upon return to work, to contact PERS, their county retirement systems, or other retirement associations, to ensure that employer retirement contributions were made in their absences. Depending on the applicable MOU, the member may have to make his or her required employee contributions.

If any of your members feels they are getting the run-around from the department on a pay, benefits, or promotional issue upon return to civilian work from military duty, have them contact your association.

About the Author: Howard Liberman is an attorney with Silver, Hadden & Silver. He is also a lieutenant commander in the Naval Reserve and served on active duty in the Navy JAG Corps for five years.

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