An announcement from the office of Preet Bharara, United States Attorney for the Southern District of New York, said the lawsuit was brought on behalf of all current and retired NYPD officers who have performed active military service since September 11, 2001, or who will do so in the future.
USERRA requires that, in calculating pension benefits, the employer must take into account the compensation that the service member would likely have earned had he or she not been performing military service, including but not limited to overtime hours and night differential pay. The class action suit alleges that the city only took into account the service members’ base pay rates in calculating their pension benefits, thereby unlawfully reducing those benefits in violation of USERRA.
Specifically, the complaint says the city unlawfully calculates the pensionable earnings of NYPD officers called to active military duty by relying exclusively on their base pay rate, instead of including the overtime or night shift differential compensation they would have earned had they not been on active military duty, as required by USERRA. As a result, service members are being deprived of pension benefits they would have been reasonably likely to receive, but for their military service.
The lawsuit seeks to require the city to lawfully calculate the pensionable earnings of all current and former NYPD officers who were called to perform active military service after September 11, 2001, or who will be called, to recalculate the pension benefits officers are currently receiving, and to remit any additional pension benefits owed as a result of performing these recalculations. “The purpose of this lawsuit is to ensure that soldiers remain on the same footing as their civilian counterparts and receive all the benefits to which they are entitled, and that they are not penalized for their service by the unlawful calculation of those benefits,” Bharara said.