Attorney General: Steven J. Weinberger, Director, State Employees' Retirement Commission, 1993-001 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

January 8, 1993

Steven J. Weinberger, Director
State Employees' Retirement Commission
Office of the State Comptroller
55 Elm Street
Hartford, CT 06106

Dear Mr. Weinberger:

This is in response to your letter of October 19, 1992 in which you relate that the State Employees' Retirement Commission's Subcommittee on Purchase of Service and Related Matters has requested an opinion from this office on the entitlement of Tier I hazardous duty members to obtain retirement credit for a leave of absence for service in the armed forces during peacetime, pursuant to the Veterans' Reemployment Rights Act.

Conn. Gen. Stat. e 5-173(c) provides, in part:

Any person who, while so employed, was granted military leave to enter the armed forces, as defined by section 27-103, and who, upon his discharge and within ninety days, returned to such service, shall be granted retirement credit for any period of service in time of war, as defined by said section, and for military service during a national emergency declared by the President of the United States on and after September 1, 1939, toward the required minimum of twenty years service ... .

38 U.S.C. e 2021(a) of the Veterans' Reemployment Rights Act provides, with limited exceptions, that a person who leaves a position in the employ of any employer for service in the Armed Forces of the United States and is honorably discharged, and makes application for reemployment within ninety days of discharge from military service shall be restored to that position or a position of like seniority, status, and pay. 38 U.S.C. e 2021(b)(1)(A) of the Veterans' Reemployment Rights Act sets forth the seniority and benefit rights of those reemployed under the Act and provides:

Any person who is restored to or employed in a position in accordance with the provisions of ... subsection (a) of this section shall be considered as having been on furlough or leave of absence during such person's period of training and service in the Armed Forces, shall be so restored or reemployed without loss of seniority, shall be entitled to participate in insurance or other benefits offered by the employer pursuant to established rules and practices relating to employees on furlough or leave of absence in time such person was inducted into such forces, and shall not be discharged from such position without cause within one year after such restoration or reemployment.

The Act does not distinguish between peacetime and

wartime service. The rights established by the Act are extended to any service in the Armed Forces of the United States. Subsection (b)(1)(A) requires that reemployment shall be without loss of seniority. Entitlement to insurance (except health insurance which is governed by subsection (b)(1)(B)) and benefits other than seniority based benefits is governed by the same rules and practices the employer uses for those on furloughs or leaves of absence. Seniority based benefits are not subject to the rules and practices of the employer relating to employees on furlough or leave of absence under the terms of the Act.

The courts have analogized the seniority based benefit principle to riding an escalator. The returning veteran does not return to the employment escalator at the point where he left it to join the Armed Forces. A veteran steps back on the seniority escalator at the precise point he would have occupied had he kept his position continuously rather than enter the Armed Forces. Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 284 (1946). Seniority benefits such as pension and retirement benefits are, by their very nature, employment advantages that Congress intended to make uniformly available to veterans through the protective mechanism of the Veterans' Reemployment Rights Act. Bunnell v. New England Teamsters, 486 F. Supp. 714, 719 (D. Mass. 1980), aff'd. 655 F.2d 451 (1st Cir. 1981), cert. denied, 455 U.S. 908 (1982).

In Alabama Power Co. v. Davis, 431 U.S. 581 (1977), the Supreme Court held that pension credits are a form of seniority protected by the Veterans' Reemployment Rights Act and that a retired employee was

entitled to be credited with the time spent in the military for purposes of calculating the employee's pension. The Court held that a veteran should receive "the pension to which he would have been entitled by virtue of his lengthy service if he had not been called to colors." Id., at 594. The Court also stated that the rules of practices of an employer cannot diminish the seniority based benefits which Congress secured veterans under the Act. Id., at 592.

The 1974 amendments to the Veterans' Reemployment Rights Act extended full coverage of the Act to veterans employed by states and their political subdivisions. Those amendments established the right to additional credited service for peacetime service in the Armed Forces of the United States to individuals who left employment with state and local governments to serve in the Armed Forces and subsequently returned to that employment within ninety days of discharge.

In Von Allmen v. State of Conn. Teachers Ret. Bd., 613 F.2d 356 (2d Cir. 1979) the court of appeals held that these amendments preempted state statutes which only permitted returning veterans additional service credits for wartime military service. At issue in Von Allmen was a Connecticut statute governing retirement credits under the Teacher's Retirement System. The statute permitted a teacher who left Connecticut teaching service for military service and returned to Connecticut teaching service to obtain credit for wartime service only. Von Allmen held that the Veterans' Reemployment Rights Act preempted the limitation on credit to wartime service, and required credit for peacetime service. The statute in question in Von Allmen, which was preempted, is similar to the statute which is the subject of your request in that it does not provide for credit for peacetime military service.

Conn. Gen. Stat. e 5-173(c) limits credit for retirement for hazardous duty employees who leave and then return to state service to wartime and national emergency service. This limitation on credit is preempted by the Veterans' Reemployment Rights Act, and credit for retirement for those hazardous duty employees must be granted for peacetime service.

The federal government's interest in protecting veteran's reemployment rights is pervasive, and exhibits a clear intent to preempt conflicting state legislation. Mazak v. Florida Dept. of Admin. Div. of Retirement, 113 L.R.R.M. 3217, 97 Lab. Cas. (CCH) P 10,083(N.D.Fla. 1983). In Mazak, the district court held that a state statute which imposed a time limitation on the military service which a state employee could purchase for retirement credit was preempted by the Veterans' Reemployment Rights Act.

Similarly, in Dailey v. Public School Retirement System of Mo., 707 F. Supp. 1087 (E.D.Mo. 1989), and in Cronin v. Police Dept. of City of New York. 675 F. Supp. 847 (S.D.N.Y. 1987), state laws limiting the purchase of military credits for public school teachers and local police were held to be preempted by the Act. And in Jennings v. Illinois Office of Ed., 589 F.2d 935 (7th Cir. 1979), the court held that the procedures used to assert ones rights under the Act preempted the state statutory based procedure to collect unpaid wages in the Illinois Service Men's Employment Tenure Act because, "the Veterans' Reemployment Rights Act preempts state law." Id., at 944.

Although states are free to establish additional rights and protections supplemental to those that the Act provides, they are not free to restrict the reemployment rights that the Act has created. Peel v. Florida Dept. of Trans., 500 F.2d 1070, 1073-1074 (5th Cir. 1979). Thus, any state law, regulation, rule, or policy which conflicts with or limits the seniority rights secured by the Act is preempted by the seniority provisions of the Act. To the extent that Connecticut's statutes or regulations governing the State Employees' Retirement System and credit for military service conflict with the seniority requirements of the Veterans' Reemployment Rights Act, they are preempted.

It should also be noted that there is no time limitation on an individual securing his seniority based retirement benefits under the Act. The Act must be liberally and broadly construed for the benefit of veterans. Coffy v. Republic Steel Corp. 447 U.S. 191, 196 (1980). In contrast to the ninety day limitation on reemployment rights in the Act, the seniority rights which flow from the reemployment have no statutory time limitation. Thus, in Alabama Power, the Supreme Court held that a veteran who had already retired should receive credit toward his retirement for military service under the seniority rights provision of the Act. In Grzyb v. New River Co., 793 F.2d 590 (4th Cir. 1986), the court held that an employee who waited thirty-one years to claim his seniority based pension rights under the Act had not waited too long or waived his rights under the Act. In Beckley v. Lipe-Rollway Corp., 448 F. Supp. 563 (N.D.N.Y. 1978), an individual failed to object to the computation of his pension credits, which excluded his credits under the Act, within the thirty day time period as required by the terms of the pension plan. The court held that the thirty day limitation in the pension plan could not operate to extinguish or limit the seniority based pension rights under the Act.

In your request you reference an informal opinion rendered by this office and its possible applicability to this situation. That opinion dealt with municipal service as credit toward hazardous duty retirement and does not apply here, as it did not address the Veterans' Reemployment Rights Act, but relied exclusively on state statutory provisions.

The answer to the subcommittee's question is that Tier I hazardous duty members who leave state service and are reemployed pursuant to the Veterans' Reemployment Rights Act are entitled to receive retirement credit for their

military leave, whether peacetime or wartime, toward the required minimum of twenty years service, and may obtain such credit any time after return to state service.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

Robert A. Whitehead
Assistant Attorney General

RAW:eh


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