SENIORITY STATUS TO WHICH RETURNING VETERAN IS ENTITLED

VETERANS ‑- RE‑EMPLOYMENT RIGHTS ‑- SENIORITY STATUS TO WHICH RETURNING VETERAN IS ENTITLED.

A state employee who takes a leave of absence because of being called to active military service is entitled upon his return to state employment to seniority credits for the time he spent in the military service.

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                                                              September 27, 1961

Honorable Tom McNulty
Acting Director
Washington State Personnel Board
General Administration Building
Olympia, Washington

                                                                                                                Cite as:  AGO 61-62 No. 65

Dear Sir:

            By letter previously acknowledged, you requested an opinion of this on the following question:

            "'Under the current law, would a state employee who takes a leave of absence because of being called to active duty in the military service be entitled, on his return to state employment, to seniority credits for the time he has spent in the service?'"

            We answer your question in the affirmative.

                                                                     ANALYSIS

            In AGO 61-62 No. 55 [[to Department of Personnel on August 14, 1961]], we held that a veteran entitled to re‑employment [[reemployment]]under the provisions of RCW 73.16.031, RCW 73.16.033 and RCW 73.16.035 should be reinstated to the salary step he would have received had his employment not been interrupted if such salary steps are based solely on length of service.  That opinion was based upon the language of RCW 73.16.033, which reads in pertinent part as follows:

            "If such person is still qualified to perform the duties of his former position, he shall be restored to that position or to a position of like seniority, status and pay. . . ."

             [[Orig. Op. Page 2]]

            Your present request arises because RCW 73.16.051, reads in part as follows:

            "Any person who is entitled to be restored to a position in accordance with the provisions of RCW 73.16.031, 73.16.033, 73.16.035, and 73.16.041shall be considered as having been on furlough or leave of absence, from his position of employment, during his period of active military duty or service, and he shall be so restored without loss of seniority. . . ." (Emphasis supplied.)

            This provision considered alone would appear to entitle a returning veteran to seniority credits for time spent in the service.  You have, however, called our attention to Article XXI, § 7 (f) of the merit system rules adopted by the Washington state personnel board which reads as follows:

            "When an employee is on leave of absence without pay for any period in excess of 15 working days, the anniversary date of such employee shall be moved forward in amount equal to the entire duration of that leave of absence. . . ."

            The effect of this rule, if considered to supplement RCW 73.16.051, quoted above, would be to cause a loss of seniority for time spent in the service.

            We are not, however, of the opinion that it should be so read.  Section 15 of the state civil service law (chapter 1, Laws of 1960), requires that the rules of the personnel board shall provide for ". . . veterans' preferences as provided by existing statutes."  We therefore are of the opinion that the personnel board rules may not be read so as to alter the preferences given to veterans under the provisions of chapter 73.16 RCW.

            The language of RCW 73.16.051, supra, is, for the purposes of this opinion, the same as 50 U.S.C. § 459 (c) (1).  Paragraph (2) of subsection (c) of the federal statute reads as follows:

            "(2) It is declared to be the sense of the Congress that any person who is restored to a position in accordance with the provisions of paragraph (A) or (B) of subsection (b) of this section [substantially equivalent to RCW 73.16.033 and 73.16.035] should be so restored in such manner as to give him such status in  [[Orig. Op. Page 3]] his employment as he would have enjoyed if he had continued in such employment continuously from the time of his entering the armed forces until the time of his restoration to such employment."

            The federal courts, in interpreting the federal act, have consistently held that the restored veteran is entitled to seniority credits for time spent in the service.  In so holding, the statement is often made that the veteran is entitled to step back on the seniority escalator at the point he would have occupied had he kept his civilian position continuously during his military service.  See,Selgrat v. Field Enterprises, 105 Fed. Supp. 179 (1952), andBrown v. Watt Car & Wheel Co., 182 F.2d 570 (1950).  See, also, 29 A.L.R. 2d 1279, 1313 and cases cited therein.

            We acknowledge that the federal act is not applicable to state employees.  See, AGO 55-57 No. 23 [[to Ed Munro, State Representative on February 26, 1957]].  We are, however, of the opinion that our court will consider the interpretations of the federal act by the federal courts, as binding in any case wherein the meaning of RCW 73.16.051 is in issue.  See,Clark v. Housing Authority Etc., 25 Wn. (2d) 419, 171 P. (2d) 217 (1946), where the federal interpretations of a former veterans' preference statute were adopted.

            We therefore conclude that a veteran restored to his former position is entitled to seniority credits for time spent in the military service.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

R. TED BOTTIGER
Assistant Attorney General