§ 203-27A. USERRA Compliance.

The provisions of this section shall apply if a Member is absent from employment because of service in the "uniformed services" and is reemployed pursuant to the provisions of Chapter 43 of Title 38 of the United States Code (the Uniformed Services Employment and Reemployment Rights Act "USERRA").

(a)

If the Member is not entitled to have the period of absence treated as City employment service pursuant to Section 203-27, the period of uniformed service shall be considered service as an Employee (as defined in Sections 203-1-E and 203-1-S) for all purposes of this chapter, other than the purposes described in paragraph (b) below.

(b)

If the Member is not entitled to have the period of absence treated as City employment service pursuant to Section 203-27, for purposes of determining the amount of a Member's Service Retirement Allowance under Section 203-33, or the amount of disability retirement allowance of a Member under Section 203-41, to the extent that the Member satisfies the contribution requirements of this paragraph (b), the Member shall be entitled to Membership Service and Creditable Service, respectively, for the period of absence. To obtain such Membership Service and Creditable Service, the Member must contribute to the Retirement System an amount equal to the payroll deductions that the Member would have been required to make pursuant to Section 203-73, determined as if the Member had been continuously employed during his or her absence and had received compensation at a rate of pay determined in a manner consistent with IRC Section 414(u)(7). Payment by the Member must be made within a period of time which begins on the date of the Member's reemployment and ends on the earlier of (i) five years, or (ii) three times the period of absence. If the Member pays less than the full amount of Member contributions required for the period of absence, the Board shall provide partial Membership Service and partial Creditable Service for such purposes, based on the amounts paid, beginning with the original date of absence. Payments may be made by payroll deduction if approved by the Board.

(c)

If the reemployed Member has previously withdrawn his or her Accumulated Contributions, the Member shall be entitled to Membership Service for his or her employment prior to the uniformed services absence if repayment is made in accordance with Section 203-29.

(d)

If a Member is entitled to Membership Service for all or part of a period of uniformed service absence pursuant to paragraph (b) above, for purposes of determining the Member's Average Highest Compensation under Section 203-1-A3, the Member shall be deemed to have earned compensation at the rate described above in paragraph (b) for any period of absence for which the Member pays the Employee contributions required under paragraph (b). If a Member is entitled to Membership Service for all or part of a period of uniformed service absence pursuant to Section 203-27, for purposes of determining the Member's Average Highest Compensation under Section 203-1-A3, the Member shall be deemed to have earned compensation at the rate described above in paragraph (b) for any period of absence which is determined to be Membership Service under Section 203-27.

(e)

Irrespective of whether, or to what extent, a Member is entitled to Membership Service and Creditable Service for a period of uniformed services absence, under Section 203-1-A3, for purposes of determining the Member's most highly compensated period of three consecutive years of service, if a Member does not have deemed compensation attributable to a period of uniformed services absence (because the Member has not made payment of all of the required Member contributions as is provided above in paragraph (b)), that period of military absence shall be disregarded. Thus, a Member's periods of Membership Service (or deemed Membership Service) preceding the Member's date of reemployment shall be deemed to be consecutive periods of service for purposes of Section 203-1-A3.

(f)

Effective December 12, 1994, notwithstanding any other provision of this Chapter, the Retirement System law, contributions, benefits and service credit with respect to qualified military service are governed by IRC Section 414(u) and the Uniformed Services Employment and Reemployment Rights Act of 1994.

(g)

Effective with respect to deaths occurring on or after January 1, 2007, while a Member is performing qualified military service (as defined in chapter 43 of title 38, United States Code), to the extent required by IRC Section 401(a)(37), survivors of a Member of the Retirement System are entitled to any additional benefits that the system would provide if the Member had resumed employment and then died, such as accelerated vesting or survivor benefits that are contingent on the Member's death while employed.

(h)

Beginning January 1, 2009, to the extent required by IRC Sections 3401(h) and 414(u)(2), an individual receiving differential wage payments (while the individual is performing qualified military service (as defined in chapter 43 of title 38, United State Code)) from an employer shall be treated as employed by that employer and the differential wage payment shall be treated as earned compensation, but contributions attributable to such differential wage payments shall not be made unless and until the Member returns to active employment and makes up the missed contributions. This provision shall be applied to all similarly situated individuals in a reasonably equivalent manner.

(Ordained by Ord. No. 264-2000, eff. June 28, 2000; Emer. Ord. No. 291-2009, § 5, eff. Oct. 28, 2009; a. Ord. No. 084-2011, § 7, eff. April 16, 2011; a. Ord. No. 336-2016, § 1, eff. Nov. 26, 2016)