Jan 10, 2019
The new Illinois Service Member Employment and Reemployment Rights Act became effective January 1, 2019
In August 2018, the Illinois General Assembly passed the Illinois Service Member Employment and Reemployment Rights Act (ISERRA) which became effective January 1, 2019. Much of ISERRA is modeled after the Federal Uniformed Services Employment and Reemployment Rights Act (USERRA) which imposes obligations on all public and private employers to protect the rights of military personnel to reinstatement following their military service with the same seniority and pay and opportunities for promotion. ISERRA incorporates the basic safeguards of USERRA and increases some of those protections.
ISERRA has expanded the definition of “military service” to include service members in the National Guard who are called upon by the governor for Illinois state service in disaster relief or law enforcement.
Neither USERRA nor ISERRA require private employers to provide paid military leave. Due to the Fair Labor Standards Act, however, it is wise to continue paying full salary of an exempt salaried employee who works any portion of a workweek and takes military leave for the remainder of the week.
Under ISERRA, public employees are entitled to full salary continuation for periods of annual training, up to 30 days each calendar year. Public employees engaged in active military service are also entitled to receive “differential compensation” for their period of active service, up to 60 days each year. Differential compensation means the public employer must pay the employee the difference between his or her civilian and military pay. Public employees’ health benefits continue during the period of military leave, as with other employees but, under ISERRA, public employers must also continue to pay their share of the full premium and administrative costs during the period of active duty.
Under ISERRA, employees on military leave are entitled to certain minimum performance evaluations. The military employee must be credited with a performance rating equal to the average performance ratings over the three years preceding the leave and in no case can that rating be less than the one the employee received for the rating period preceding his or her leave.
ISERRA allows service members to bring a private civil action for violations of the Act, and includes a “fee shifter” provision that entitles the prevailing party to attorney’s fees and damages. The Act also establishes an ISERRA Advocate within the Illinois Attorney General’s Office to assist both service members and employers with questions and to file actions in state court that may result in the assessment of fines for violations.
This is a brief summary of the scope of ISERRA; therefore, a consultation with an Employment Law attorney at Chuhak & Tecson regarding ISERRA or other employment issues is recommended.
This Chuhak & Tecson, P.C. communication is intended only to provide information regarding developments in the law and information of general interest. It is not intended to constitute advice regarding legal problems and should not be relied upon as such.
Client alert authored by: Daniel J. Fumagalli, Principal
This alert originally appeared in the January 2019 Employment Focus newsletter.