Opinion
Opinion Delivered February 11, 1992
The Honorable John Bynum Prosecuting Attorney Fifth Judicial District 312 W. 2nd Street P.O. Box 1587 Russellville, Arkansas 72801
Dear Mr. Bynum:
This is in response to your request, on behalf of the Pope County Sheriff's office, for an opinion on the following question:
If an employee joins the National Guard or Air Reserve after his or her employment, is the department required to hold his or her position open for the four to six months during training? Also, would it make any difference if he or she is still on probation?
It is my opinion that the sheriff must, under federal law, reemploy the returning National Guard or Air Reserve member (if he or she makes application to be reemployed) in the same position or a position of like seniority, status and pay.
Although there were several amendments made to state law provisions governing military leave by virtue of Act 673 of 1991, none of these provisions appears to address the precise question you have posed. Section 21-4-102 (Cum. Supp. 1991) grants fifteen annual paid leave days for training of National Guard or reserve members, but does not specifically address more extended leave periods for training; section 21-4-212 (Cum. Supp. 1991) apparently does not apply to local employees (see A.C.A. § 21-4-203(9)); and sections 21-4-309 and 310 do not appear to apply to the reserve branches (see A.C.A. § 21-4-301(1).
You do not state whether the employee will be on "active duty for training," or on "inactive duty training." It is my assumption that, due to the length of the training period, the employee will be on "active duty for training." See 38 U.S.C. § 2024(f). This being the case, the relevant provision is 38 U.S.C. § 2024(c) (Repl. 1991), which provides as follows:
Any member of a Reserve component of the Armed Forces of the United States who is ordered to an initial period of active duty for training of not less than twelve consecutive weeks shall, upon application for reemployment within thirty-one days after (1) such member's release from such active duty for training after satisfactory service, or (2) such member's discharge from hospitalization incident to such active duty for training, or one year after such member's scheduled release from such training, whichever is earlier, be entitled to all reemployment rights and benefits provided by this chapter . . . except that (A) any person restored to or employed in a position in accordance with the provisions of this subsection shall not be discharged from such position without cause within six months after that restoration. . . .
This provision requires the sheriff's department to reemploy the returning reserve member, under the conditions stated above.
Your second question asks whether it makes any difference if the employee is "still on probation." The federal law protects all employees "other than temporary employees." See 38 U.S.C. § 2021 (a). It is my opinion generally that no distinction is made between "probationary employees" and other employees on this basis. See generally, Montgomery v. Southern Electric Steel Company, 410 F.2d 611 (5th Cir. 1969), and Hanna v. American Motors Corp., 557 F.2d 118 (7th Cir. 1977), wherein it was stated:
`an employee who has a probationary status previous to leaving for military service must show that as a matter of foresight it was reasonably foreseeable that upon completion of the probationary period the employee would receive permanent status and as a matter of hindsight, it did in fact occur. The inquiry is not whether the employee would complete the probationary period but upon completion whether the employee would receive permanent status.' [Emphasis original.]
557 F.2d at 120, citing Brickner v. Johnson Motors, 425 F.2d 75 (7th Cir. 1970).
It is thus my opinion that a "probationary employee," if he or she would achieve permanent status upon completion of the probationary period, is within the protection of the act.
The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elana L. Cunningham.
Sincerely,
WINSTON BRYANT Attorney General
WB:cyh