## Facts

- Fifteen San Antonio Fire Department employees also served in the military reserves or National Guard and regularly took short-term military leave for monthly drills and annual training.
- The firefighters worked under a collective bargaining agreement using an FLSA-based overtime system in 21-day work periods: scheduled for 168 hours, paid straight time for the first 159 hours, and overtime beginning at hour 160.
- Under City practice, most absences did not count as “hours worked” toward the overtime threshold, except scheduled vacation time.
- The City did not treat military leave as “hours worked” for purposes of straight-time pay, overtime eligibility, or related opportunities.
- The firefighters sued under USERRA, alleging the City’s policies denied them pay and non-seniority benefits, including overtime pay/opportunities, extra leave tied to attendance (bonus day/perfect attendance leave), vacation scheduling flexibility, unscheduled overtime, and job-upgrade opportunities.
- The district court granted summary judgment for the firefighters on major portions of the claims under a “constructive presence” approach, treating the firefighters as if they were present at work during military leave.
- The City appealed.

## Issues

1. Whether non-seniority benefits during military leave are governed by USERRA § 4311(a) (anti-discrimination) or § 4316(b)(1) (equal non-seniority benefits compared to comparable non-military leave).
2. Whether USERRA required the City to treat firefighters as “constructively present” during military leave so that military leave hours counted toward straight-time pay, overtime pay/opportunities, and job-upgrade opportunities.
3. Whether disputes of fact existed as to entitlement to bonus day leave, perfect attendance leave, and the City’s cap on recoverable lost overtime based on whether military leave was comparable to other leave.

## Decision

- The Fifth Circuit held that USERRA § 4316(b)(1), not § 4311(a), governs entitlement to non-seniority benefits during periods of military absence.
- The court rejected the “constructive presence” theory as inconsistent with § 4316(b)(1)’s equal-treatment framework.
- The court reversed the summary judgment for the firefighters and rendered judgment for the City on claims for lost straight-time pay, lost overtime pay/opportunities, and missed job-upgrade opportunities.
- The court vacated and remanded claims for bonus day leave, perfect attendance leave, and the application of a 27-hour cap on lost overtime due to unresolved factual questions about whether military leave was comparable to other leave for which those benefits were available.

## Legal Principles

- For benefits not determined by seniority, USERRA § 4316(b)(1) controls the rights of employees absent due to military service.
- Section 4316(b)(1) guarantees parity: an employee on military leave receives the same non-seniority rights and benefits generally provided to employees on comparable non-military leave, not greater benefits.
- USERRA does not require an employer to credit military leave as time worked for pay and overtime calculations unless comparable non-military leave is credited the same way.
- A “constructive presence” approach that treats military absences as worked time is inconsistent with § 4316(b)(1) when it would confer preferential treatment.
- Whether a benefit must be provided under § 4316(b)(1) can depend on a fact-specific comparability analysis between military leave and other forms of leave.

## Conclusion

The Fifth Circuit ruled that non-seniority benefits during military leave are governed by USERRA’s equal-treatment provision, not a broad constructive-presence theory, and it entered judgment for the City on straight-time, overtime, and upgrade claims while remanding attendance-related leave and overtime-cap issues for fact findings on comparability.


Rogers v. City of San Antonio, 392 F.3d 758 (5th Cir. 2004)