USERRA Does Not Require A City To Continue To Provide A Historical Benefit Of Employment To A National Guard Member That It Does Not Provide To Non-Guard Members
CREWS v. CITY OF MT. VERNON (June 2, 2009)
Ryan Crews is a member both of the Mount Vernon Police Department and the Army National Guard and has been so for years. His work obligations to the department and the military frequently conflict. Since 1997, however, the department has allowed Crews to adjust his work schedule by moving any weekend department shifts that conflict with his guard exercises to the regular workweek. Thus, Crews was paid for a full week's work without using vacation or other time-off. Between 2000 and 2003, the department offered the same arrangement to three additional guard members hired as police officers. Non-guard members had no comparable opportunities to reschedule workdays. When the department hired two more guard members in 2006, the department rescinded the policy. The additional guard members in the department made implementation of the policy too costly. Crews brought an action against the City under the Uniformed Services Employment and Reemployment ct ("USERRA"), alleging that the rescission of the policy denied him a benefit of employment. The district court granted summary judgment to the City, ruling that § 4316(b) did not require the City to provide scheduling benefits not generally available to members of the department not in the National Guard. Crews appeals.
In their opinion, Judges Manion, Evans and Tinder affirmed. The Court noted that USERRA contains a general anti-discrimination provision in § 4311 as well as the § 4316 requirement that service members who are on leave to fulfill their obligations are entitled to benefits generally afforded other employees on similar leave. Addressing § 4316, the Court held that Crews was entitled only to equal treatment, not to the preferential treatment the policy afforded. The Court further held, however, that § 4311 could also apply. The Court found some basis for Crews' claim in the statute's "any benefit of employment" language. It concluded, however, that the better interpretation of the statute is that a "benefit of employment" is one afforded military and non-military employees alike. Thus, Crews could not prevail under § 4311, either.
Michael Rigney practices in the law offices of GVC Ltd. in Chicago. In this blog, he reports on select