>The US 5 th Circuit Court of Appeals ruled in December 2004 that San Antonio did not violate the Uniformed Services Employment and Reemployment Rights Act (USERRA) in its policies about non-seniority based benefits and wages.
>The appeals court rejected the allegations by the 15 plaintiffs – all military reservists or members of the National Guard – that they were denied pay, extra overtime work, and opportunities for extra vacation because of their weekend military duties. Plaintiffs’ lawyers had claimed that the Supreme Court review was necessary because federal appeals courts had ruled differently about military reservists’ USERRA rights.
>Based on a review of the legislative history, Circuit Judge James Dennis wrote for the appeals court that USERRA was designed to prevent discrimination in hiring, seniority, and termination, but also to make sure that benefits not related to seniority are administered fairly. Since the benefits the firefighters challenged were not seniority-based, the court said the only question was whether nonmilitary employees were treated the same under the benefits and pay schemes.
>Under USERRA, when employers are considering non-seniority based rights and benefits, they are “to treat employees taking military leave, equally, but not preferentially, in relation to peer employees taking comparable non-military leaves generally provided under the employer’s contract, policy, practice or plan,” the court said.
>The 5 th Circuit’s opinion in Rogers v. San Antonio, U.S., No. 04-1448, cert. denied 6/20/05 is here .