Robert DeLee v. City of Plymouth, Indiana

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 14-1970

ROBERT D. DELEE,

Plaintiff-Appellant,

v.

CITY OF PLYMOUTH, INDIANA,

Defendant-Appellee.

____________________

Appeal from the United States District Court for the

Northern District of Indiana,

No. 3:12-cv-380 — James T. Moody, Judge.

____________________

ARGUED OCTOBER 2, 2014 — DECIDED DECEMBER 9, 2014

____________________

Before FLAUM, MANION, and HAMILTON, Circuit Judges.

FLAUM, Circuit Judge. Pursuant to a long-standing lo-

cal ordinance, the City of Plymouth, Indiana pays its po-

lice officers “longevity pay” after each work anniversary,

calculated by multiplying $225 by the number of years

that the officer has been on the force. Faced with financial

difficulties in 1989, Plymouth enacted a second longevity

pay ordinance pertaining to police, which prorates lon-

gevity pay for officers who take a leave of absence during

2 No. 14-1970

any given year, including for military service. During po-

lice officer Robert DeLee’s twelfth year on the job, he

missed nearly eight months of work while serving in the

United States Air Force Reserves. And so, when he re-

turned, Plymouth paid him one-third of his full longevity

payment for that year. DeLee sued, arguing that longevi-

ty pay is a seniority-based benefit to which the Uni-

formed Services Employment and Reemployment Rights

Act (“USERRA”), 38 U.S.C. §§ 4301–4335, entitles him in

full. Because we conclude that Plymouth’s longevity ben-

efit is more appropriately characterized as a reward for

lengthy service, rather than as compensation for work

performed the preceding year, USERRA guarantees

DeLee a full longevity payment for his twelfth year of

employment. Accordingly, we reverse the district court’s

grant of summary judgment in favor of Plymouth.

I. Background

In addition to salary, the City of Plymouth, Indiana

pays its long-serving police officers and firefighters (to-

gether, “emergency personnel”) what Plymouth calls

“longevity pay” on the anniversaries of their start dates.

Prescribed by city ordinance, longevity pay is “additional

compensation” to be paid to qualified emergency per-

sonnel who have “at least three years of continuous ser-

vice to the City.” See Plymouth, Ind., Ordinance Nos.

2009–1987 (Aug. 10, 2009), 2010–2009 (Aug. 23, 2010). The

portion of the ordinance pertaining to police officers

states:

Longevity pay is calculated to be $225.00.

The amount to be paid to a qualified police

officer is $225.00 multiplied by the number

No. 14-1970 3

of years of continuous service. The maxi-

mum amount paid shall be $4,500.00. Lon-

gevity shall be paid on the pay day follow-

ing the anniversary date of employment for

that individual.

Id.

The record does not indicate when the longevity pay

ordinance for emergency personnel was first enacted, but

the parties suggest that it was long before 1989. That is a

relevant fact, because 1989 is the year in which Plymouth

enacted Ordinance No. 1480, which reads:

WHEREAS, longevity pay has long been

recognized as an incentive for police and

firemen to remain in the service of the City;

and,

WHEREAS, a question has arisen con-

cerning the advisability of paying longevity

to members of the police department or fire

department who have gone to an inactive

status by reason of a leave of absence, or

who have been assigned to duties other

than the normal, customary duties of the

fire department or police department; and,

WHEREAS, in the interest of fiscal re-

sponsibility and fairness, it should be rec-

ognized that a member of the police de-

partment or fire department who is in an

inactive status, but who has reached an an-

niversary date for purposes of longevity

pay, should be paid said longevity, but as

4 No. 14-1970

calculated on the number of months of ac-

tive service to the City in the respective de-

partments.

NOW, THEREFORE, BE IT ORDAINED

*****

Longevity pay shall be prorated for any

qualified policeman or policewoman who

during the year immediately preceding

their anniversary date is on a leave of ab-

sence, or who is otherwise not engaged in

the active performance of the normal and

customary duty of the police department.

Longevity shall be prorated based on the

number of months of actual active duty

during the year immediately preceding the

anniversary date.

Plymouth, Ind., Ordinance No. 1480 (Nov. 13, 1989).

Robert DeLee is a patrolman in Plymouth, Indiana,

who has been with the Plymouth police since April 19,

1999. On his eleventh anniversary, DeLee received lon-

gevity pay in the amount of $2,475 ($225 times 11 years).

In his twelfth year on the job, DeLee was called to active

service by the United States Air Force, in which he has

served as a member of the Reserves since July 7, 1997 and

currently holds the rank of Technical Sergeant. DeLee

was mobilized for active duty on September 1, 2010 and

returned to his job as a Plymouth patrolman on May 11,

2011. Upon his return, Plymouth paid him his longevity

pay for that year, prorated pursuant to Ordinance No.

1480 for the time that he had spent serving in the Air

No. 14-1970 5

Force. Had DeLee been actively employed as a patrolman

for the entire year, he would have earned a longevity

payment of $2,700 ($225 times 12 years). Instead, because

DeLee had worked approximately four months of his in-

dividual fiscal year, Plymouth issued him one-third of a

full longevity payment—or $900.

Believing that Plymouth violated federal law by

withholding $1,800 of his longevity pay, DeLee filed a

USERRA complaint with the Veterans’ Employment Ser-

vice of the Department of Labor. DOL investigated and,

after an unsuccessful attempt to resolve the issue with

Plymouth, referred the matter to the Department of Jus-

tice, which agreed to represent DeLee in litigation.

DeLee then sued Plymouth in the Northern District of

Indiana for alleged violations of USERRA. DeLee’s com-

plaint accuses Plymouth of violating 38 U.S.C. § 4316(a)

by denying him full longevity pay, which he alleges is a

seniority-based benefit to which USERRA entitles him.

Without taking discovery, the parties filed cross-motions

for summary judgment on the § 4316(a) claim. 1 The dis-

trict court granted Plymouth’s motion for summary

judgment and denied DeLee’s motion for partial sum-

mary judgment. DeLee appealed, and so we review the

district court’s ruling on the parties’ cross-motions for

summary judgment de novo. Gross v. PPG Indus., Inc., 636

1 DeLee also sought statutory damages for a willful USERRA viola-

tion pursuant to 38 U.S.C. § 4323(d)(1)(C). A plaintiff is entitled to a

jury trial on a liquidated damages claim under USERRA, Middleton v.

City of Chicago, 578 F.3d 655, 659 (7th Cir. 2009), and DeLee did not

move for summary judgment on that claim. Plymouth, however,

moved for summary judgment on both counts.

6 No. 14-1970

F.3d 884, 888 (7th Cir. 2011); Storie v. Randy’s Auto Sales,

LLC, 589 F.3d 873, 876 (7th Cir. 2009).

II. Discussion

USERRA, the most recent statute in a long line of fed-

eral veterans’ rights laws enacted since the Selective

Training and Service Act of 1940, was passed in 1994 to

strengthen existing employment rights of veterans of our

armed forces. 2 Gross, 636 F.3d at 888. The statute seeks (1)

to encourage military service by minimizing the disad-

vantages to civilian careers, (2) to minimize the disrup-

tion in the lives of servicemembers by providing prompt

reemployment, and (3) to prohibit servicemember dis-

crimination. 38 U.S.C. § 4301(a). USERRA accomplishes

these goals by prohibiting an employer from discriminat-

ing against a servicemember because of his service

(§ 4311), requiring prompt reemployment of a returning

servicemember (§§ 4312, 4313(a)), establishing a protec-

tive period during which an employer may not discharge

a reemployed servicemember without cause (§ 4316(c)),

and—relevant to this case—affording returning service-

members all of the seniority and seniority-based benefits

that they would have attained had they remained con-

tinuously employed (§ 4316(a)).

More precisely, § 4316(a) specifies:

2 “Congress emphasized when enacting USERRA that to the extent it

is consistent with USERRA, the ‘large body of case law that had de-

veloped’ under the predecessor statutes to USERRA ‘remained in

full force and effect.’” Gross, 636 F.3d at 888 (quoting 20 C.F.R.

§ 1002.2).

No. 14-1970 7

A person who is reemployed under this

chapter is entitled to the seniority and other

rights and benefits determined by seniority

that the person had on the date of the

commencement of service in the uniformed

services plus the additional seniority and

rights and benefits that such person would

have attained if the person had remained

continuously employed.

38 U.S.C. § 4316(a).

USERRA defines “benefits” and “rights and benefits”

to mean:

any advantage, profit, privilege, gain, sta-

tus, account, or interest (including wages or

salary for work performed) that accrues by

reason of an employment contract or

agreement or an employer policy, plan, or

practice and includes rights and benefits

under a pension plan, a health plan, an em-

ployee stock ownership plan, insurance

coverage and awards, bonuses, severance

pay, supplemental unemployment benefits,

vacations, and the opportunity to select

work hours or location of employment.

38 U.S.C. § 4303(2). USERRA defines “seniority” as “lon-

gevity in employment together with any benefits of em-

ployment which accrue with, or are determined by, lon-

gevity employment.” 38 U.S.C. § 4303(12).

In other words, USERRA requires employers to ad-

here to the “escalator” principle, placing a returning ser-

8 No. 14-1970

vicemember at the “precise point he would have occu-

pied had he kept his position continuously” while away

from the job for his military service. Fishgold v. Sullivan

Drydock Corp., 328 U.S. 275, 284–85 (1946) (interpreting

the Selective Training and Service Act of 1940’s seniority

provision); Rogers v. City of San Antonio, 392 F.3d 758, 763

(5th Cir. 2004) (quoting Fishgold in the USERRA context).

Of importance here, USERRA “supersedes any State law

(including local law or ordinance), contract, agreement,

policy, plan, practice, or other matter that reduces, limits,

or eliminates in any manner any right or benefit provid-

ed by” USERRA. 38 U.S.C. § 4302(b).

At summary judgment, the district court focused on

the language of Plymouth’s proration ordinance—

mindful of the guidance promulgated by the Supreme

Court in Accardi v. Pennsylvania R.R. Co., 383 U.S. 225

(1966), and Foster v. Dravo Corp., 420 U.S. 92 (1975)—in

arriving at its conclusion that Plymouth’s longevity pay

for police officers is not a benefit determined by seniority.

Accardi involved returning servicemembers’ claims to

severance payments, which the Supreme Court deter-

mined to be a seniority-based benefit to which the ser-

vicemembers were entitled. 383 U.S. at 232. Following

honorable discharges from the armed forces, Accardi and

his co-plaintiffs returned to their jobs at the Pennsylvania

Railroad and were restored to their former positions with

the same amount of seniority that they had when they

left, plus credit for the three years they had spent in the

armed forces. Id. at 227. Fifteen years later, however, the

men were laid off and, pursuant to their union agree-

ment, awarded severance pay based on “the length of

compensated service” with the railroad. Id. at 227–28. The

No. 14-1970 9

railroad excluded the three years that the men had spent

in the armed forces. The men sued, alleging violations of

the Selective Training and Service Act of 1940, which re-

quired employers to reinstate honorably discharged em-

ployees to “their former position” or “a position of like

seniority, status, and pay,” without a loss of seniority. Id.

at 229.

The statute’s purpose, the Supreme Court said, was

“to preserve for the returning veterans the rights and

benefits which would have automatically accrued to

them had they remained in private employment rather

than responding to the call of their country.” Id. at 229–

230. Although the severance payments were based pri-

marily on the employees’ length of service with the rail-

road, the railroad argued that severance was “not based

on seniority, but on the actual total service rendered by

the employee.” Id. at 230. The Supreme Court rejected

that argument for two reasons. First, the Court noted, the

railroad’s rules afforded severance credit for an entire

year to an employee who had worked just seven days,

undercutting the railroad’s argument that the severance

payments were compensation for services rendered. Id.

Next, the Court said, “the real nature” of severance pay-

ments are compensation for loss of a job, not payment for

services rendered. Id. For those reasons, the Supreme

Court concluded that severance payments are “a means

of compensating employees for the loss of rights and

benefits accumulated over a long period of service”—not,

as the railroad had argued, a form of deferred compensa-

tion for work done in the past. Foster, 420 U.S. at 98 (de-

scribing the holding in Accardi). Accordingly, the sever-

10 No. 14-1970

ance payments were a seniority-based benefit guaranteed

by federal statute, the Court held. Id.; 383 U.S. at 232.

By contrast, Foster involved the accrual of vacation

benefits, which the Supreme Court deemed a form of

short-term compensation for work performed, and thus

not a benefit based on an employee’s seniority to which a

servicemember was entitled pursuant to the Military Se-

lective Service Act. 420 U.S. at 100. Foster’s union’s col-

lective bargaining agreement required employees to

work twenty-five weeks in a calendar year to accrue the

company’s full amount of allotted vacation time. Id. at 94.

Foster worked seven weeks in 1967, took military leave,

and then returned for thirteen weeks in 1968. Id. When

his employer denied him vacation days for both years, he

sued, arguing that vacation days are a seniority-based

benefit. The Supreme Court disagreed, highlighting the

difference between the vacation benefits at issue and the

severance payments addressed in Accardi. Both included

a work requirement, but unlike the work requirement in

Accardi (which “appear[ed] plainly designed to measure

time on the payroll rather than hours on the job”), the

work requirement to accrue vacation benefits “consti-

tute[d] a bona fide effort to compensate for work actually

performed.” Id. at 99. Critical to the Court’s conclusion

that “vacation benefits were [not] intended to accrue au-

tomatically as a function of continued association with

the company” was the fact that employees accrued extra

vacation time as they worked overtime hours, and that if

an employee was laid off before hitting the 25-week

mark, he was compensated for vacation days on a pro

rata basis. Id. at 100-01. Thus, the Court held, the vacation

benefits at issue were more appropriately characterized

No. 14-1970 11

as “a form of shortterm compensation for work per-

formed.” Id. at 100.

The district court considered the circumstances and

reasoning of these two cases and concluded that Plym-

outh’s longevity pay for police officers is more akin to a

vacation benefit than to a severance payment because of

the operation of Ordinance No. 1480, which, as dis-

cussed, serves to prorate the benefit according to the

months that an employee was on a leave of absence. The

district court concluded that the longevity rate (i.e., the

number of years of employment by which $225 is multi-

plied) “is plainly a seniority benefit,” but that the longev-

ity amount “is clearly intended to be compensation for

work actually performed in the preceding year.” DeLee v.

City of Plymouth, Ind., 2014 WL 1316870, at *4 (N.D. Ind.

Mar. 31, 2014). Therefore, in the district court’s view,

DeLee was not deprived of the seniority benefit—the

$225 was multiplied by 12, even though his total longevi-

ty payment then was prorated—and Plymouth did not

run afoul of USERRA. Id.

There is logic to the district court’s reasoning: by pro-

rating longevity pay, the benefit appears to be more

closely tied to the number of months an employee has

worked in the short term than to the number of years that

he has been employed by the City. And the result seems

equitable because it provides DeLee some seniority bene-

fit (in the form of the rate calculation) for his missed time,

without requiring the City to provide him a full longevi-

ty payment for a year in which he took a leave of ab-

sence. But a pair of more recent Supreme Court cases—

Alabama Power Co. v. Davis, 431 U.S. 581 (1977), and Coffy

12 No. 14-1970

v. Republic Steel Corp., 447 U.S. 191 (1980)—compel a con-

clusion contrary to the one reached by the district court.

In Alabama Power, a reemployed servicemember sued

his employer pursuant to the Military Selective Service

Act, after he was denied employer pension credit for the

time he had spent on military leave. 431 U.S. at 582.

Again the Supreme Court stressed the importance of

identifying the “real nature” of the payments, noting

that, in Accardi, the Court had rejected an employer’s at-

tempt to “disguise” severance payments by “use of a

‘compensated service’ formula to calculate the amount of

payments.” Id. at 588. And the Court reiterated Foster’s

conclusion that vacation benefits were “a form of pay for

work done” largely on account of the “common concep-

tion of a vacation as a reward for and respite from a

lengthy period of labor.” Id. at 589.

The Court stressed that there are “two axes of analy-

sis” for determining whether a benefit is a right of senior-

ity secured by a veteran: (1) whether the benefit would

have accrued, with reasonable certainty, if the veteran

had been continuously employed during his military

service, and (2) whether the benefit is a “perquisite of

seniority.” Id. Prong one was easily satisfied, the Court

held. Id. at 591. In analyzing prong two—and this is par-

ticularly instructive in DeLee’s case—the Court empha-

sized that Foster “turned on the nature of vacation bene-

fits, not on the particular formula by which those benefits

were calculated”—“[e]ven the most traditional kinds of

seniority privileges could be as easily tied to a work re-

quirement as to the more usual criterion of time as an

No. 14-1970 13

employee,” the Court said. Id. at 592. Against that back-

drop, the Court noted:

It is obvious that pension payments have

some resemblance to compensation for

work performed. Funding a pension pro-

gram is a current cost of employing poten-

tial pension recipients, as are wages . . . .

The same observations, however, can be

made about any benefit and therefore are of

little assistance in determining whether a

particular benefit recompenses labor or re-

wards longevity with an employer.

Id. at 592–93. Taking into account all of the different as-

pects of pension plans, the Court concluded that the

“‘true nature’ of the pension payment is a reward for

length of service.” Id. at 593. To the Court, the “most sig-

nificant factor pointing to this conclusion [was] the

lengthy period required for pension rights to vest in the

employee.” Id. at 593. But the Court also was swayed by

the “function of pension plans in the employment sys-

tem”—“[by] rewarding lengthy service, a plan may re-

duce employee turnover and training costs and help an

employer secure the benefits of a stable work force.” Id.

at 594. These same objectives are accomplished by Plym-

outh’s longevity payments, as even the preamble of Or-

dinance No. 1480 acknowledges. 3

3 Plymouth devotes a sizable portion of its brief to an analysis of

Jackson v. Beech Aircraft Corp., 517 F.2d 1322 (10th Cir. 1975), which

Plymouth believes to be the only circuit court decision addressing

longevity pay under USERRA or a predecessor statute. Although the

court found the “longevity pay” at issue in that case not to be senior-

14 No. 14-1970

The ordinance’s preamble—which speaks to the ordi-

nance’s purpose and therefore aids us in assessing the

fundamental nature of Plymouth’s longevity benefit—

tells us several things. First, by noting that “longevity

pay has long been recognized as an incentive for police

and firemen to remain in the service of the City,” the or-

dinance acknowledges the benefit’s history as a reward

for lengthy service. (Indeed, Plymouth concedes that

longevity pay, in the absence of proration, is a seniority-

based benefit.) Second, by flagging the advent of “ques-

tions . . . concerning the advisability of paying longevity”

to those on inactive status, the ordinance highlights the

potential unsustainability of that policy. Finally, by an-

nouncing that it was informed by considerations of “fis-

cal responsibility and fairness,” the ordinance self-

identifies as a compromise that remains true to Plym-

outh’s long-standing tradition of paying firefighters and

police a longevity payment, while accounting for the fi-

nancial realities of the day. The plain language of the

ity-based, Jackson is of little utility. Plymouth overlooks that the Su-

preme Court specifically granted certiorari in Alabama Power because

of a conflict among the circuits, and that Alabama Power’s holding

(that pension benefits are seniority-based) overruled the holding in

Jackson (that they are not). That result renders questionable the con-

tinuing force of Jackson’s ruling concerning longevity pay. Moreover,

the “longevity pay” in Jackson was fundamentally different from the

one at issue here. In Jackson, longevity pay took the form of “an hour-

ly premium of 5 cents per hour” after five years and “10 cents per

hour” after ten years on the job. Id. at 1323. The benefit in Jackson,

therefore, was more akin to a raise, than to the “longevity pay” that

Plymouth provides.

No. 14-1970 15

preamble, therefore, strongly suggests that by enacting

its proration policy, Plymouth sought to cut the cost of

paying an expensive benefit, without disturbing its un-

derlying purpose. The Supreme Court’s decision in Coffy

underscores the importance of the ordinance’s origins in

our diagnosis of its true nature.

In Coffy, the Court deemed supplemental unemploy-

ment benefits (“SUBs”) to be a seniority-based benefit,

the denial of which violated the plaintiff’s rights under

the Vietnam Era Veterans’ Readjustment Assistance Act

of 1974. 447 U.S. at 193. As in Alabama Power, the Court

found the reasonable certainty prong of the two-axes test

to be easily satisfied (SUBs are a benefit that would have

accumulated had Coffy not taken a leave of absence to

perform military service), and so the Court focused on

ascertaining the “real nature” of the benefit. Id. at 199–

200. In doing so, the Court traced the history of SUBs,

which evolved from the demand by organized labor for a

guaranteed annual wage. Id. at 200. As the Court ex-

plained, once it became evident to unions in certain in-

dustries that their fight for a guaranteed minimum wage

was a losing battle, they switched their focus to supple-

menting existing unemployment compensation pro-

grams. Id. “From the beginning, then, the purpose of SUB

plans was to provide employment security regardless of

the hours worked rather than to afford additional com-

pensation for work actually performed. From the em-

ployer’s standpoint, SUBs, like pension benefits, help to

assure a stable work force through periods of short-term

layoffs.” Id. Moreover, the “essential function of SUB

plans is to provide economic security for regular em-

ployees in the event they are laid off. Protection against

16 No. 14-1970

layoff is, of course, one of the traditional attributes of sen-

iority.” Id.

In its appellate brief, Plymouth explains the historical

context in which it enacted its proration policy, explain-

ing that its adoption was precipitated by the Supreme

Court’s ruling in Garcia v. San Antonio Metropolitan Trans-

it Authority, 469 U.S. 528 (1985). By Plymouth’s character-

ization, Garcia “affirmed the constitutionality of Con-

gress’ extension of the [Fair Labor Standards Act] to local

governments” and “struck a major financial blow to mu-

nicipalities.” The resultant financial stress prompted

Plymouth—“in the interest of fiscal responsibility and

fairness”—to adopt the longevity pay proration policy

set forth in Ordinance No. 1480. This is insightful, be-

cause it demonstrates that Plymouth began prorating

longevity pay—tying it for the first time to a work re-

quirement—to save money, not because it no longer

sought to reward longevity and incentivize continued

employment for its firefighters and policemen.

Besides the historical context in which SUBs came

about, three elements of the SUB plan influenced the Cof-

fy Court’s decision, all of which cut convincingly in

DeLee’s favor with regard to characterizing longevity

pay as a seniority-based benefit. First, the Supreme Court

rejected the district court’s conclusion that SUB payments

were so closely related to hours worked as to demon-

strate that the plan was a “bona fide effort to compensate

for work actually performed,” since that conclusion “is at

odds with the literal terms of the plan, which provide

that SUB credits are earned for all weeks in which an

employee has any hours.” 447 U.S. at 201 (emphasis in

No. 14-1970 17

original). Like Coffy’s employer, Plymouth claims that

the contested benefit is compensation for work per-

formed, but the literal terms of the benefit do not support

that conclusion. Recall that DeLee’s anniversary date is

April 19 and that DeLee deployed from September 1,

2010 until May 11, 2011. DeLee therefore missed 7

months and 19 days of his twelfth year on the job and

another 23 days in his thirteenth year. Yet Ordinance No.

1480 calls for proration “based on the number of months

of actual active duty,” and so when Plymouth calculated

his prorated benefit, it discounted his longevity pay by

8/12. The rough estimation used by Plymouth suggests

the same thing that Ordinance No. 1480’s preamble im-

plies—that Plymouth prorates the longevity payments as

a cost-savings mechanism pursuant to a fiscal compro-

mise, not because the longevity pay is payment for days

in which work was actually performed.

Second, the Supreme Court took into consideration

the fact that an employee earned SUB credits for time

that the employee did not actually work, such as while

attending jury duty, out disabled, or performing certain

union duties. Id. at 202. For that reason, the Court reject-

ed the employer’s argument that the 32-hour work-week

minimum revealed the SUB plan’s nature as deferred

compensation for work performed. Id. The Court also

highlighted that Coffy’s SUB plan made no provision for

accrual of additional credits for hours worked over 32

per week or for overtime. “This omission is not sugges-

tive of a desire to compensate work actually performed,”

the Court reasoned. Id. at 202. Similarly, Plymouth issues

full longevity pay, without proration, to employees who

missed significant time from work (for jury duty, vaca-

18 No. 14-1970

tion, sick time, etc.), as long as the employee was not out

on an official leave of absence. Moreover, Plymouth does

not award employees any extra longevity pay for over-

time.

Finally, the Coffy Court took note of the fact that em-

ployees received no benefits if they were laid off or quit

before having worked for the company for two years. Id.

at 205. “Such a threshold requirement is more character-

istic of seniority provisions than of compensation.” Id.

Likewise, for a Plymouth police officer to earn a longevi-

ty payment, he must have been with the City continuous-

ly for three years.

Applying the Alabama Power test to DeLee’s situation,

there is no question that a full longevity payment would

have accrued but for his leave of absence. And, as de-

scribed above, every meaningful aspect of the “perqui-

sites of seniority” considered by the Supreme Court in

Alabama Power and Coffy cuts decisively in DeLee’s favor.

Nevertheless, Plymouth maintains that its longevity ben-

efit is compensation for work done during the prior year,

staking its position on the “simple idea that wages are

earned through work.” But longevity payments are not

wages. And, in any event, that “simple idea” contravenes

USERRA’s guarantee of seniority benefits, which include

seniority-based bonuses. See 38 U.S.C. § 4303(2). 4 In Coffy,

4 Plymouth points to Featsent v. City of Youngstown, 70 F.3d 900 (6th

Cir. 1995), in support of the proposition that longevity pay should

not be considered a reward for lengthy service under USERRA.

Featsent is an FLSA case, in which the plaintiffs, city police officers,

challenged the city’s compliance with the overtime requirements of

the statute. The FLSA requires that employers compensate their em-

No. 14-1970 19

the Supreme Court emphasized that “[e]ven if eligibility

for SUB payments were closely related to hours worked,

that fact would not, by itself, render them compensation

rather than seniority rights.” 447 U.S. at 203. That is be-

cause the nature of the benefit, not the formula by which

it is calculated, is the “crucial factor, ‘for even the most

traditional kinds of seniority privileges could be as easily

tied to a work requirement as to the more usual criterion

of time as an employee.’” Id. at 204 (quoting Alabama

Power, 431 U.S. at 592). Ultimately, the history of SUB

plans, as well as the plan’s specific provisions, compelled

the Coffy Court’s conclusion that the benefit was a reward

for lengthy service. Id. These same considerations dictate

the outcome here, where we conclude that the original

purpose of Plymouth’s longevity pay for police was to

reward them for lengthy service and that that purpose

survived the subsequently-enacted proration ordinance.

Accordingly, the “real nature” of longevity pay foreclos-

es the City’s argument that its prorated payments to po-

ployees who work in excess of forty hours per week at a rate one-

and-a-half times the regular rate at which they are employed. Id. at

903. Among other things, the Featsent plaintiffs argued that the city

failed to incorporate longevity pay into the calculation of its “regular

hourly rate,” which the statute defines to include “all remuneration

for employment paid to, or on behalf of, the employee.” Id. at 904. In

light of the statute’s requirement that the “regular rate” include all

remuneration for employment, the Sixth Circuit held that longevity

pay must be included in the calculation, even though “by definition”

longevity pay is “payment[] given on the basis of length of service” “to

compensate police officers for their service to the city.” Id. 905–06 (empha-

ses added). If anything, therefore, this case undermines, rather than

supports, Plymouth’s argument.

20 No. 14-1970

lice officers are compensation for work actually per-

formed that year.

III. Conclusion

For the foregoing reasons, we REVERSE the judgment

of the district court and REMAND for further proceedings

consistent with this opinion.