U.S. Dept. of Justice may sue city

PLYMOUTH — The United States Department of Justice may sue the city of Plymouth on behalf of a military reserve officer and city employee’s claims for longevity pay.
A news release from City Attorney Sean Surrisi Monday states that there is a question as to whether a city ordinance in effect since 1989 differs from a federal law enacted in 1994 protecting civilian job rights and benefits for veterans and reserve troops who may be absent from their jobs during military service.
The employee, who was not named by Surrisi, did receive prorated longevity pay from the city for time actually worked. However, the employee also claims entitlement to longevity pay for the entire year of 2010-11 under terms of the Uniformed Services Employment and Reemployment Rights Act (USERRA).
This Act applies to both governmental and private employers, and supersedes any conflicting local law that “reduces, limits, or eliminates” any rights or benefits of a service member.
The release from the city stated that The U.S. Department of Labor has its own rules and regulations interpreting USERRA, which provide, in part, that “an employee who is absent from a position of employment by reason of service is not entitled to greater benefits than would be generally provided to a similarly situated employee on non-military furlough or leave of absence.”
Surrisi said Monday that the city had been in discussion with the branch of reserves that the employee serves under and also with the U.S. Department of Labor over the past year about the issue.
The city maintains that its ordinance does not conflict with USERRA and that the employee in question was treated no better or no worse than any non-military employee on a leave of absence.
“The city complies with all federal, state, and local laws when figuring payroll,” said Plymouth Clerk-Treasurer Toni Hutchings. “Our ordinance states that the proration of longevity pay is ‘in the interest of fiscal responsibility and fairness.’”
City officials also brought up Indiana’s Ghost Employment statute. This statute prohibits a governmental entity from paying an employee for work that has not been performed. Officials question whether making the employee’s requested longevity payment would violate that statute.
Plymouth mayor Mark Senter said that he is proud of Plymouth employees who serve in the military, but that he must support city ordinances.
“As mayor, the people of Plymouth have given me a trust to enforce their ordinances and my administration must prove faithful in serving as well,” said Senter.
Surrisi further stated in the news release that the USERRA allows for enforcement actions to be brought on the service member’s behalf by the U.S. Department of Justice. The Department of Justice has been in contact with the city for some time and may file suit in the near future. In this case, a court will determine whether the longevity pay is due in light of differing local, state, and federal laws.