Police Officers Win USERRA Case Challenging Unequal Benefits

​The 11th U.S. Circuit Court of Appeals affirmed summary judgment for a group of police officers serving as military reservists who, during leaves of absence for active-duty service, did not receive the same benefits as other city employees who were on nonmilitary leave. The court held that, by treating the officers differently from the other employees in this manner, the city violated the Uniformed Services Employment and Reemployment Rights Act (USERRA), which requires that employees on military leave receive the same benefits as similarly situated employees on comparable forms of leave.

The city had a policy under which employees could accrue paid leave and paid holidays, but only while on paid status. An employee was on paid status so long as the employee was either on the city payroll or using a paid type of leave. An employee on unpaid leave did not accrue these benefits.

One type of leave the city offered was military leave, which was paid up to 168 hours. After exhausting those hours, the employee would no longer be paid and would need to take unpaid leave or use other available forms of accrued paid leave.

The city also offered paid administrative leave, which served various purposes, including to protect employees under internal investigation. Employees on paid administrative leave were paid for the entire leave period, which usually was short (e.g., for inclement weather or jury duty) but, if related to an internal investigation, sometimes could last hundreds of days.

The officers, each called to active duty for varying periods over the course of decades, had used their 168 hours of paid military leave and then converted to unpaid status. While on unpaid status, they did not accrue paid leave or holiday pay.

The officers sued the city, asserting that the city had violated their USERRA rights by allowing employees on paid administrative leave to accrue paid leave and holiday pay, but not giving the officers the same benefits.

The officers won summary judgment in the district court, and the city appealed, raising two issues: 1) whether city employees on military leave are similarly situated to employees on paid administrative leave and 2) whether military leave and paid administrative leave are comparable.

The city argued that employees on administrative leave are on paid status and thus not similarly situated to employees on military leave, which eventually becomes unpaid. The city also argued that military leave and paid administrative leave are not comparable.

The appeals court sided with the officers and affirmed the ruling below.

First, the 11th Circuit determined that unpaid status alone does not distinguish employees on military leave from those on paid administrative leave. While acknowledging certain ambiguities in the relevant statutory language, the court held that USERRA does not differentiate employees in this way, which would impermissibly thwart its goal of protecting veterans. It also clashed with the U.S. Department of Labor's interpretation.

Second, the appeals court disagreed with the city that paid administrative leave and military leave are not comparable. Both types of leave, the court determined, serve similar purposes and are similarly outside employees' control. In addition, at least in some instances, as with an internal investigation, they have similar durations.

Therefore, the 11th Circuit held that the city had violated USERRA by not giving the officers accrued paid leave and holiday pay while on unpaid portions of their military leaves.

Myrick v. City of Hoover, Ala., 11th Cir., No. 22-11621 (June 8, 2023).

Adam D. Brown is an attorney in the Philadelphia office of Duane Morris.