Veterans' Preference Act of 1944

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Veterans' Preference Act of 1944

John P. Stimson

The U.S. Government is our nation's largest employer, and throughout history Congress has used the power of an employer to shape or express public policy. One such policy is the recognition that our society owes a debt to those who face the horrors of combat in defense of American freedom and values. To repay this debt, the government tries to make the veterans' return from military service to civilian life an easier transition. It does so by offering veterans preferential treatment in federal employment. Congress adopted the first of such preferences in the Civil War era, and they have continued to evolve over the years. World War II was the occasion for a major milestone with passage of the Veterans' Preference Act of 1944 (P.L. 78-359, 58 Stat. 387).

ORIGINS OF VETERANS PREFERENCES

Congressional concern for veterans' postwar employment opportunities dates to 1865. That year the Senate and House of Representatives issued a joint resolution urging that disabled veterans "be preferred for appointments to civil offices." (Confederate soldiers were not considered veterans until they were pardoned in 1958, at which point few were still alive.) Congress supplemented the 1865 hiring preference in 1876 with a retention preference for honorably discharged veterans, or their widows or orphans, faced with any reduction-in-force. This meant that an honorably discharged veteran who might be laid off because of a lack of work, lack of funds, reorganization, or other factors would have a better chance of retaining his job. The retention preference served as a tiebreaker among equally qualified federal employees, and did not depend on whether the veteran had served in wartime or was disabled.

A 1912 law, as implemented and expanded through a series of presidential executive orders and Civil Service Commission regulations, granted an absolute retention preference to any honorably discharged service member with good performance ratings. This meant that the veteran was preferred for job retention even over nonveteran federal employees with more seniority or higher performance ratings.

Section 8 of the Selective Training and Service Act of 1940 added reemployment rights to the list of veterans' preferences. Any nontemporary federal employee called for military training and service was guaranteed the right to return to a federal position previously held, or an equivalent one, without loss of seniority or benefits. Such an employee could not be discharged within a year of reemployment, unless the employer had good cause such as mis-conduct.

The network of federal veterans' preference laws and regulations was substantial by 1944, including hiring, retention, and reemployment preferences. Many states had their own laws for similar preferences in hiring in state and municipal government. The World War II Congress, however, believed further action was appropriate.

THE 1944 ACT: CODIFY, EXPAND, IMPROVE

The American effort in World War II required an unprecedented mobilization, with millions of citizens placing their private lives on hold to join bloody battles in faraway places. Congress anticipated that returning war veterans would have particularly acute needs for employment assistance. Lawmakers believed that the federal government should enhance veteran hiring preferences as a display of gratitude and as an example for other employers. As Representative Thomas D'Alesandro put it during committee hearings: "[T]his nation has trained 12,000,000 fighting men to destroy and kill. They have been taken away from schools, colleges, and jobs. Their home life has been broken up, and they have turned into tough soldiers and sailors.... The millions of men and women returning from the war fronts and camps will need jobs, money, training, hospitalization, and other assistance. They expect stability and security, so that they can start rebuilding their private lives. We must give them all that. It is the least we can do for them" (90 Congressional Record 3506 [1944]).

The 1944 law, unlike some earlier veterans' preference laws, covered only veterans with disabilities as a result of wartime service, along with their wives or widows, and other veterans who served during war. Peacetime veterans who already enjoyed preferences under previous laws and regulations did not forfeit those benefits, but those preferences did not extend to peacetime veterans discharged after 1944.

The new set of preferences covered hiring, reemployment, retention during a reduction-in-force, and the right to appeal decisions based on rules of employee discipline. Veterans after World War II could qualify for federal jobs without meeting age, height, and weight requirements. Education requirements were eliminated from all federal positions except for certain scientific, technical, and professional positions as considered necessary by the Civil Service Commission. Veterans also received, in certain cases, credit for military service in meeting the experience requirements of a position. Once found qualified for a federal position, veteran applicants enjoyed a leg-up in competition for the job.

Federal hiring for most positions was based on competitive examinations. The 1944 law added ten points to the test scores of disabled veterans or their widows or wives, and added five points to the test scores of other war veterans. This often served to elevate veterans to the top of the hiring list. Federal agencies had to hire from the top three names on the list, and could not pass by a veteran for a nonveteran without justification.

Reemployment and retention preferences did not depart dramatically from those already in effect, but Congress considered it important to "give legislative sanction" to benefits that had been created by executive branch rules and regulations. Reemployed veterans could not be terminated within a year of their return to duty. Eligible veteran employees with good performance ratings could not be laid off before a nonveteran in a reduction-in-force, regardless of seniority.

The Veterans' Preference Act of 1944 bestowed on war veterans certain notice and appeal rights in matters of employee discipline. A veteran could not be fired, suspended, demoted, or reduced in pay without good cause and without first receiving written notice of the allegations, an opportunity to respond, and thirty days' notice. The veteran then could appeal the termination to the Civil Service Commission. Veterans were the first group of federal employees to enjoy these rights. Nonveterans did not acquire them until President Kennedy's Executive Order 10987 in 1962.

THE CONSTITUTIONAL LEGITIMACY OF VETERANS' PREFERENCES

A preference, by definition, comes at the expense of those who are not preferred. Yet the 1944 act has withstood constitutional challenges by nonveterans. One such case was White v. Gates, Secretary of the Navy (1958). The U.S. Court of Appeals for the District of Columbia Circuit held that Congress, by restricting the ability of the executive branch to hire and fire relatively low-level employees, did not unconstitutionally infringe on the powers of the president. In another case, Colemere v. Hampton, Chairman, U.S. Civil Service Commission (1973), the U.S. District Court in Utah held that veterans' preferences in federal employment do not violate the Constitution's equal protection requirements because there was a rational basis for distinguishing between veterans and nonveterans, and because there is no fundamental right to work for the government.

The Supreme Court ruled in Arnett v. Kennedy (1974) that federal employees have a property interest in their job, and the Fifth Amendment of the U.S. Constitution requires due process when the government takes away a property interest. The Court found that the review rights prescribed by the Veterans' Preference Act of 1944 and Executive Order 10987 were central to the constitutionality of the civil service system.

CONTINUED RELEVANCE OF VETERANS' PREFERENCES

Congress has taken many opportunities to adjust veterans' preferences since 1944, but the basic program remains in place. The Vietnam Era Veterans Readjustment Act requires private employers to take affirmative action to hire disabled veterans and Vietnam era veterans for work on federal contracts. The right to notice and review of employee discipline formed the foundation for due process rights in the Civil Service Reform Act of 1978. The Uniformed Services Employment and Reemployment Rights Act of 1994 bolstered reemployment rights of veterans and reservists in federal, state, and private employment. Disabled veterans still receive a ten-point preference, war veterans still receive a five-point preference, and veterans' retention preferences still trump nonveterans in a reduction-in-force. U.S. lawmakers, in short, continue to recognize a debt and express gratitude to the veterans of American wars.