Members of the armed services are protected from discrimination and have re-employment and leave rights under the Uniformed Services Employment and Reemployment Rights Act (USERRA).
But the law doesn’t require employers to indefinitely continue what amount to voluntary special privileges for service members.
Recent case: Ryan Crews was a police officer with the city of Mt. Vernon. He was also a member of the Army National Guard, a branch of the services that is covered by USERRA. Crews had to attend regular weekend training and drills about once per month.
When Crews went on weekend duty, he sometimes missed a scheduled weekend shift as a police officer. Starting in 1997, the city allowed Guard members who missed a regular shift to instead work during their days off. They didn’t have to use vacation or other leave, and they didn’t lose pay for their missed military time. Other employees who had to miss a weekend shift were not allowed to make up the time.
By 2006 the number of police officers who were also Guard members had grown, making it very difficult to schedule them during the week following a drill. Plus, costs skyrocketed because the Guard members collected full pay while fill-in officers received overtime pay.
Eventually, the city revoked the policy. It still allowed Crews and the others to take the time off for drills, but it no longer allowed them to make up the time.
Crews sued. He alleged that the city had removed a benefit owed to him because he was a member of the Guard. He argued USERRA made that illegal.
The 7th Circuit Court of Appeals disagreed. It concluded that Crews and his fellow officer/soldiers had actually been receiving extra privileges, and cutting those extras did not violate USERRA. (Crews v. City of Mt. Vernon, No. 08-2435, 7th Cir., 2009)
Final note: The court made clear that special rights set out in USERRA are still in force. Those rights include additional job protections after citizen soldiers return from active duty.
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