VETERANS ‑- REINSTATEMENT TO POSITION ‑- RETROACTIVE PAY FROM TIME OF RETURN TO RESTORATION OF FORMER POSITION

VETERANS ‑- REINSTATEMENT TO POSITION ‑- RETROACTIVE PAY FROM TIME OF RETURN TO RESTORATION OF FORMER POSITION.

If statutory conditions are met, a veteran must be re‑employed [[reemployed]]or the prior employer is liable for back wages.

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                                                                    June 7, 1951

Mr. E. B. Riley, Director
Veterans' Rehabilitation Council
P.O. Box 777
Olympia, Washington                                                                                                      Cite as:  AGO 51-53 No. 61

Attention:  !ttMr. Edwin W. Schultz, Assistant Director

Dear Sir:

            You have requested our opinion on whether:

            "The State Auditor may approve retroactive wage payments by the City of Ellensburg to the veteran reinstated to a position of like seniority status and pay, for the period of his discharge from the service to the time he is re‑employed [[reemployed]]."

            We conclude that this wage payment should be approved if for a proper amount as outlined below.

                                                                     ANALYSIS

            Rem. Rev. Stat. § 10758-3 (1943 Supp.), P.P.C. § 746r-1, RCW 73.16.03 [[RCW 73.16.030]], provides in part:

            "Any man or woman who is a resident of this state, and who, as a volunteer, or otherwise, has or shall hereafter become a member of the  [[Orig. Op. Page 2]] United States * * * [armed services] and who has been or shall be called to active service therein, and who, in order to perform such service has left or leaves a position, other than a temporary position, in the employ of any employer, * * * such person shall be restored to such position or to a position of like seniority status and pay:  * * *"

            Mandatory re‑employment is conditioned upon the veteran:

            (1) Receiving an honorable or satisfactory discharge from service,

            (2) Being still qualified to perform the duties of the position, and

            (3) Applying for re‑employment [[reemployment]]within forty days after release from active service.

            Further, restoration is not required

            (1) If the elective or appointive official from whom the employment flows is no longer in office, or

            (2) If a change of circumstances has made "restoration impossible, unreasonable, or against the public interest."

            If all conditions are met, the applicant must be reinstated to either his former position, or a position of like seniority and pay.  Only then could the question of retroactive wage payments arise.  Your office has by phone informed us that all conditions were fully met.

            If restoration was improperly denied, the veteran has a cause of action for his loss, Rem. Rev. Stat. § 10758-6 (1941 Supp.), P.P.C. § 746r-7, RCW 73.16.06 [[RCW 73.16.060]].  The damages to which he is entitled would be the wages he would have earned had he been properly re‑employed [[reemployed]], less the amounts earned on other jobs, because under general law, he is required to minimize his damages.

             [[Orig. Op. Page 3]]

            Since the veteran

            "shall be considered as having been on furlough or leave of absence"

            during his active service, Rem. Rev. Stat. § 10758-5 (1941 Supp.), P.P.C. § 746r-5, RCW 73.16.05 [[RCW 73.16.050]], it is our opinion that Wash. Const., Art. 2, § 5, andState ex rel. Bonsall v. Case, 172 Wash. 243, 19 P. (2d) 927 (1933) do not apply.

            We therefore advise that the State Auditor should approve the payment if for the proper amount.

Very truly yours,

SMITH TROY
Attorney General

JENNINGS P. FELIX
Assistant Attorney General