MANHATTAN (CN) – New York City underestimated the pensions of police officers who were called into active military service since Sept. 11, 2001, federal prosecutors claim in a class action lawsuit.
“NYPD officers who serve in our military put their lives on the line doubly – as civilians and enlisted men and women,” U.S. Attorney Preet Bharara said in a statement. “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.”
Meanwhile, Georgia Pestana, the chief of the Labor and Employment Division of the New York City Law Department, contends that the city paid what was owed.
“The law requires that employees who are called up for military duty be treated the same as any other employee who goes out on leave,” Pestana said. “We believe that the pension benefits we provide to police officers who have served in the military meet that standard — and would not want to discourage anyone from military service by providing them with less than what they are entitled to.”
The lawsuit is filed on behalf of three retired officers: David Goodman, a lieutenant colonel in the U.S. Army Reserves and former New York City Police Department detective; Michael Doherty, a former U.S. Coast Guard reservist and NYPD detective; and Robert Black, a former U.S. Coast Guard reservist and NYPD sergeant.
Each of the officers says that he regularly worked overtime and nighttime hours for the NYPD, but had his pension benefits calculated using only base pay at the time he was called for duty.
Federal prosecutors say that this violates the spirit and letter of the Uniformed Services Employment and Reemployment Rights Act of 1994.
“Based on past practice and policy of the NYPD, it is reasonably certain that NYPD officers who work hours falling within a night shift will earn night shift differential pay, although the amount of night shift differential pay that an individual officer will receive may not be reasonably certain.
“To determine the pensionable earnings of members who are NYPD officers and are absent from NYPD employment to perform active military service in the uniformed services, the Pension Fund must impute and calculate the pensionable earnings the officers would have had during their periods of military service as if those officers had remained continuously employed,” the complaint states.
Prosecutors say that the NYPD failed to do this for the named plaintiffs and at least 40 other officers.
They want a judge in the Southern District of New York to order the city in violation of USERRA, mandate the pensions to be recalculated and award unspecified damages.