AGO 1955 No. 3 - Jan 6 1955
STATE EMPLOYEES ‑- VETERANS ‑- REEMPLOYMENT ‑- RIGHTS OF
(1) A qualified state employee, upon his resumption of employment, after a tour of military service is entitled as a matter of right to be returned to the same step of the State Salary Plan as he formerly occupied and (2) In the discretion of the appointing officer, such persons may be advanced to a higher salary level.
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January 6, 1955
Honorable Sverre N. Omdahl
Chairman, Standards Committee
Old Capitol Building
Olympia, Washington Cite as: AGO 55-57 No. 3
We have your request of December 6, 1954, for an opinion concerning the reemployment of veterans to positions in state government. You cite the case of an employee in the second step of the State Salary Plan when he left the employment of the state to serve for three years in the armed forces. You ask whether upon reemployment his salary must be that of step two or whether he may be advanced to a higher salary level?
In our opinion, he is entitled to be reemployed as a matter of right at the same level of pay he received before he left for military service but that, in the discretion of the appointing officer, he may be advanced to a higher salary level.
RCW 73.16.033, 1953 Supp., provides in part as follows:
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"If such person is still qualified to perform the duties of his former position, he shall be [[Orig. Op. Page 2]] restored to that position or to a position of like seniority, status and pay. * * *"
There have been no Washington cases directly in point. RCW 73.16.070 provides that the Soldiers' and Sailors' Civil Relief Act of 1940 applies in the courts of this state. See, also,Clark v. Housing Authority, 25 Wn. (2d) 419. An examination of the cases construing the federal act discloses several rules which have evolved. Basically the cases hold that the veteran is entitled to be restored to the same employment status which he would have occupied if his employment had not been interrupted by military service. This formula would be easily applicable if tenure were the sole criterion for advancement. We are advised however that such is not the case.
The case ofNevens v. Curtis-Wright Corp., (1949 C.A. 6th Ohio) 172 F. (2d) 535 is illustrative of the problem. The court held that if pay raises were awarded on the basis of merit and proficiency at a particular job, as distinguished from seniority alone, a veteran is not entitled to assert his right to a raise in pay by reason of his military service. The key to the problem appears to be that a veteran is not to be prejudiced in his resumption of employment following a military leave of absence.
It should be noted that in the reported cases holding adversely to the contentions of a veteran, the courts have simply held that the veteran was not entitled, under the act, to a more preferential reemployment status then he was given. This does not mean that an employer may not reemploy a veteran at a higher salary level. It is easily conceivable that an employee may be more qualified and proficient in his work by virtue of military training and experience. In such instances the employer is certainly justified in advancing the veteran to a higher step in the State Salary Plan. As we view it, the legislature did not intend to dictate a policy to employers for advancing their employees. What was intended is an enunciation of this proposition: Insofar as tenure enters into the formula for advancement, no veteran should be discriminated against by reason of the time he spent in the military service.
It is our opinion and we accordingly advise: (1) A qualified state employee, upon his resumption of employment, after a tour of military service is entitled [[Orig. Op. Page 3]] as a matter of right to be returned to the same step of the State Salary Plan as he formerly occupied, and (2) in the discretion of the appointing officer, such persons may be advanced to a higher salary level.
We hope these comments will be of assistance to you.
Very truly yours,
Assistant Attorney General