PART III

CHAPTER 3

POSITIONS OTHER THAN TEMPORARY

303.1 Definition of Position. The status which the law protects is "a position other than a temporary position in the employ of any employer." This expression covers almost every kind of relationship in which one person renders regular and continuous service to another. It unmistakably includes persons in superior positions and those whose services involve special skills, as well as ordinary laborers and mechanics. (See The Kay Case-Kay v. General Cable Corp., p. 101, Appendix.)

303.2 Temporary Position.-The only positions not covered by the law are "temporary" positions. By using the phrase "position other than temporary" Congress evidenced an intention of using a broader concept than would have been entailed by use of the word "permanent." Hence, before a veteran is deprived of reemployment rights, it must be shown clearly that the employment he left to enter active military service was "tmporary." In determining whether or not a position was "temp 3," all of the facts and circumstances relating to the emplove relationship must be considered. In all borderline cases the doubt as to whether the position ft by the veteran was temporary should be resolved in fa he veteran.

5.3 Persons Who Left Same Job Assignment.-The fact tha vera' veterans left the same job assignment in an employer's establishmen to enter the armed forces is not determinative of whether ti "position in the employ of" the employer which any of such ve left was temporary or other than temporary. It is the character of the employment relationship that should govern and not merely the particular assignment being carried out at the time of entry into active military service.

303.4 Part-time Employment.-The fact that work is performed on a part-time rather than a full-time basis does not in itself render the position a temporary one. The question of whether a position is or is not a temporary position cannot be resolved solely on the basis of the number of hours worked per day or per week. If the part-time work is not short term but involves the performance of regular continuing service for an indefinite period, it is not a temporary position.

303.5 Probationary Workers.-(a) The use of the term "probationary" to describe a person's employment status is not deter

minative of the question whether his position is temporary or other than temporary. Consideration must be given to the character of the employment relationship and all of the facts and circumstances surrounding it. A probationary worker is not to be considered a temporary employee when the term "probationary" is used only to indicate a period of time which must elapse before certain privileges are to become available to the worker, such as seniority rights, resort to employer-employee appeal procedures, vacation and insurance benefits or automatic pay increases and promotions.

(b) Persons who are serving under probational appointments in classified civil service positions in the Federal Government are regarded as "other than temporary" employees and are eligible for statutory restoration to their former positions.

303.6 Apprentices-Trainees.-Apprentices or trainees as such are not temporary employees. These terms have no bearing on the question of whether or not the position is in fact a temporary position. A person may be an apprentice, a trainee, a helper, or a journeyman, and be either a temporary or other than temporary employee, depending upon the terms and purpose of the employment relationship.

303.7 Federal Employees. (a) Temporary EmployeesPersons serving under temporary appointments, including warservice appointees whose appointments are limited to 1 year or less, are considered as temporary employees.

(b) War-Service Appointees-Persons who are serving under an original war-service appointment (i. e., for the duration of the war and 6 months thereafter) are regarded as temporary employees within the meaning of the act according to the Attorney General's opinion of May 26, 1943. However, under Civil Service War Service Regulation XIII, if a war-service appointee is discharged from active military or naval service prior to termination of the war, he will be entitled to substantially the same reemployment benefits as are provided for permanent employees under the act. However, he shall not be required to be retained in employment beyond the limitation placed upon his original appointment.

PART III

CHAPTER 4

QUALIFIED TO PERFORM DUTIES

304.1 Definition of Term.

304.2 Standards of Performance.

304.3 Capacity to Perform the Job. 304.4 Medical Examination.

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PART III

CHAPTER 4

QUALIFIED TO PERFORM DUTIES

304.1 Definition of Term.-A veteran who duly applies for reemployment must be "qualified to perform the duties of such position." This is a question of fact to be determined by common sense and experience. The employer cannot set up arbitrary or unreasonable standards. When a veteran seeks reemployment, there is a strong presumption that he is qualified to perform the duties of the position he left to enter the armed forces since he performed those duties prior to that time. If he is still qualified to perform the duties of his former position, the fact that he has been medically discharged or is in better or worse physical condition than when he departed for active military service should be of no moment except as provided in section 304.4. (See The Grasso Case-Grasso v. Crowhurst et al., p. 111, Appendix.)

304.2 Standards of Performance.-A veteran seeking reinstatement in his former position is not required to meet higher standards than existed in the position at the time it was vacated by him, nor is he required to meet standards which the employer may set for other employees in the same or like positions. If the position has been so changed in job content that it is beyond the veteran's skill, he is entitled to a job requiring skill comparable to that required by the position which he left at the time he left and equal in seniority, status, and pay to that which he vacated. 304.3 Capacity to Perform the Job.-(a) Veterans returning from military service find themselves, in countless cases, in competition for jobs with persons who have been filling them in their absence. Handicapped as they are bound to be by prolonged absence, such competition is not part of a fair and just system, and the intention was to eliminate it as far as reasonably possible. When reemployment is effected, the veteran may require a period of time to reacquire skills. That is a reasonable and necessary incident to reemployment normally required for a person to become proficient in the work. (See The Kay Case-Kay v. General Cable Corp., p. 101, Appendix.)

(b) If the veteran can do his job or can be retrained on the job to perform the duties safely and with acceptable efficiency within a reasonable period of time, he is entitled to be restored to that job. The veteran is entitled to every practicable opportunity to prove that he can perform the duties of the job.