USERRA Lawsuit for NYC Workers Expands

October 23, 2012 ( – A federal lawsuit investigating the City of New York’s calculation of pension funds was expanded to include all retired City workers called to active military duty after 9/11.

U.S. Attorney for the Southern District of New York, Preet Bharara, announced the investigation is to determine if the City workers are receiving the benefits to which they are entitled under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA).

On August 2, the U.S. filed a class action lawsuit against the City, the New York City Policy Department (NYPD), and New York City Pension Fund on behalf of all current and retired NYPD officers who performed active military service since 9/11 or who will do so in the future (see “NYC Sued for Military Member Police Officers’ Pensions”). The lawsuit alleges that the City unlawfully calculates the pensionable earnings of NYPD officers called to military duty by relying exclusively on their base pay-rate instead of including the overtime or night shift compensation they would have earned had the military not mandated their service, as required by USERRA. As a result, service members are being deprived of pension benefits they would have been reasonably likely to receive. 

The lawsuit seeks to require the City to lawfully calculate pension earnings of all current and former NYPD officers who were called to active duty after 9/11 or who will be called to service, to recalculate the pension benefits they are currently receiving and to remit any additional pension benefits owed as a result.

“Since the lawsuit was filed we have received dozens of inquiries from veterans who worked on other City agencies, prompting the expansion of our investigation,” Bharara said. “Each and every City employee who was called to active military service is entitled to have his or her pension calculated consistent with USERRA.”