On Jan. 1, 2019, a new Illinois law relating to military leave policies and practices will take effect. The new law, entitled the Illinois Service Member Employment and Reemployment Rights Act (ISERRA) was passed to ensure that Illinois service members’ employment rights are protected while they are fulfilling military requirements. ISERRA was signed into law by Governor Bruce Rauner on Aug. 26, 2018.
The Purpose of ISERRA
According to Illinois Attorney General Lisa Madigan’s Aug. 27, 2018 press release, the purpose of ISERRA is to simplify existing Illinois law by consolidating pre-existing provisions related to service members, thus making it easier for employers to understand and follow the law. ISERRA replaces and repeals several prior laws, including the Military Leave of Absence Act, the Public Employee Armed Services Rights Act, the Municipal Employees Military Active Duty Act, the Local Government Employees Benefits Continuation Act and portions of other Illinois laws.
ISERRA does not repeal the Illinois Family Military Leave Act, which allows either 15 or 30 days of unpaid family military leave to an employee who is the spouse, parent, child or grandparent of a person called to military service lasting longer than 30 days with the United States or State of Illinois.
Relationship to Federal Law
ISERRA explicitly incorporates the federal Uniformed Services Employment and Reemployment Rights Act (USERRA) as minimal legal protections for service member employees, subject to any additional protections provided by ISERRA. Thus, employees can look to federal law for guidance on military leave rights and responsibilities. ISERRA incorporates USERRA’s prohibitions on discrimination against service member employees and the right to reinstatement upon the completion of military service.
ISERRA applies to all employers, including public employers. Regarding employees, it should be noted that ISERRA’s definitions are broader than similar terms under USERRA. For example, ISERRA defines “military service” as not only service in the Armed Forces of the United States or National Guard (as provided under USERRA), but also “state active duty” (i.e. the “full-time State-funded military duty under the command and control of the Governor”), or service for any “federally recognized auxiliary of the United States Armed Forces when performing official duties in support of military or civilian authorities as a result of an emergency.”
Additional Benefits for Public Employees
ISERRA provides that during periods of military leave for annual training, public employees shall continue to receive full, “concurrent” compensation for up to 30 days per calendar year. Furthermore, during periods of military leave for active service, public employees shall receive “differential compensation,” which, under ISERRA, means “pay due when the employee’s daily rate of compensation for military service is less than his or her daily rate of compensation as a public employee.” ISERRA provides specific provisions regarding the calculation and applicability of differential compensation and caps differential compensation at 60 workdays per year.
Notice of Military Leave
Under ISERRA, service member employees are not required to get permission from employers prior to military leave; only advance notice of pending service is required. Employers may require notice by appropriate military authority letterhead. Employers may not impose conditions for military leave, such as work shift replacement, but they may provide scheduling options to employees in lieu of paid military leave.
Seniority and Performance Ratings
Regarding seniority, ISERRA requires that employers credit service member employees absent on military leave at a minimum of the average of the efficiency, performance ratings or evaluations received for the three years immediately before the military leave absence. The rating shall not be less than the rating the employee received for the rated period immediately prior to military leave. Military duty periods are to be counted as civilian service for purposes of seniority or promotion eligibility. These requirements do not apply to probationary periods.
Posting of Notice
ISERRA requires that each employer provides to employees a notice of rights, benefits and obligations for service member employees under the statute where the employer customarily places notices for employees. The Illinois Attorney General has created a notice of ISERRA rights that can be found here.
ISERRA gives the Illinois Attorney General the power to appoint an ISERRA “advocate.” The ISERRA advocate has the power to establish employer training modules and educational materials, respond to informal inquiries made by the public, make available required ISERRA notices for the public, investigate allegations of ISERRA violations and prepare an annual report to the Attorney General.
Finally, ISERRA creates a private right of action for enforcement of a violation of the statute. The court in its discretion may award actual damages “or any other relief that the court deems proper.” Punitive damages are not authorized except in cases involving discrimination against service member employees, and may not exceed $50,000 per violation. Reasonable attorney’s fees may be awarded to prevailing plaintiffs. Defendants, however, may only receive attorney’s fees if the court finds that the plaintiff brought an ISERRA case in bad faith. The Attorney General may also bring a civil action based upon violations of ISERRA.
This alert is merely a summary of ISERRA; the statute has several nuances which are not fully discussed here. Given ISERRA’s many requirements and upcoming effective date of Jan. 1, 2019, employers should revisit their policies for military service employees and their family members.