Illinois has a new law protecting Illinois service members’ employment rights while they are serving and protecting our country. Effective on January 1, 2019, this new law, called the Illinois Service Member Employment and Reemployment Rights Act (ISERRA) is the state version of the Federal Uniform Services Employment & Reemployment Rights Act (USERRA) and grants greater protection to our service members who leave civilian employment to serve our Nation and the State of Illinois.
Purpose of ISERRA
The purpose of ISERRA is to simplify and consolidate existing Illinois laws making it easier for employers and service members to understand as well as expand upon the federal USERRA act to provide greater protections to service members. The law is designed to protect the public interest in both safeguarding and promoting military service. The Act’s focus is to:
- Minimize disadvantages to military service in civilian careers;
- Providereemployment at minimal disruption to the lives of the service member, their employers, and co-workers;
- Prohibit discrimination against and interference with military service; and
- Ensure that public entities are model employers of reserve components by providing additional benefits.
Protected Persons under ISERRA
The persons protected under ISERRA are greater than the persons protected under USERRA and extend to State of Illinois service members as well. There are three categories of protected persons under the ISERRA definition of “Military service”:
- Service in the Armed Forces of the U.S., the National Guard of any state or territory regardless of status, and the State Guard as defined in the State Guard Act. “Military service,” whether active or reserve, includes service under the authority of U.S.C. Titles 10, 14, or 32, or State active duty.
- Service members in a federally recognized auxiliary of the U.S. Armed Forces when per-forming official duties in support of military or civilian authorities resulting from an emergency.
- Employees who are absent from a position of employment for the purpose of medical or dental treatment for a condition, illness, or injury sustained or aggravated during a period of active service in which treatment is paid by the U.S. Department of Defense Military Health System.
Rights Protected Under ISERRA
Protections under ISERRA include all basic protections provided under USERRA but also expand on those rights. The major protections are discussed below:
- A service member employee is not required to get permission from his or her employer for military leave. The service member employee is only required to give such employer advance notice of pending service.
- An employer may not impose conditions for military leave, such as work shift replacement, not otherwise imposed by this Act or other applicable law. An employer may provide scheduling options to employees in lieu of paid military leave.
- A service member employee is not required to accommodate his or her employer’s needs as to the timing, frequency, or duration of military leave. However, employers are permitted to bring concerns over the timing, frequency, or duration of military leave to the attention of the appropriate military authority. The accommodation of these requests are subject to military law and discretion.
- Service, efficiency, and performance rating
- A service member employee who is absent on military leave shall, minimally, for the period of military leave, be credited with the average of the efficiency or performance ratings or evaluations received for the 3 years immediately before the absence for military leave.
- The rating shall not be less than the rating that he or she received for the rated period immediately prior to his or her absence on military leave.
- In computing seniority and service requirements for promotion eligibility or any other benefit of employment, the period of military duty shall be counted as civilian service. This paragraph does not apply to probationary periods.
- The Act expressly incorporates the USERRA’s antidiscrimination provision 38 USCS § 4311.
- A service member shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership, application for membership, performance of service, application for service, or obligation. 38 USCS § 4311(b).
- An employer may not discriminate in employment against or take any adverse employment action against any person because such person has taken an action to enforce a protection afforded any person under this Act, testified,or assisted with an investigation of a violation of this Act. The protection extended to non-service members as well as service members. 38 USCS § 4311(b).
- Public employees
- ISERRA also includes additional benefits for full-time public employees in the form of paid military leave and expanded health plan coverage.
An ISERRA Notice must be posted. 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. See Illinois Attorney General Notice of ISERRA rights.
ISERRA creates a private right of action for enforcement of a violation of the statute. The Illinois may award actual damages “or any other relief that the court deems proper.” Punitive damages are not permitted except for cases involving discrimination against service member employees, and may not exceed $50,000 per violation. Reasonable attorney’s fees are available.
The Attorney General may also bring a civil action based upon violations of ISERRA.
Employers Best Practices Related to ISERRA and other Illinois Laws
While ISERRA is an Illinois law, all employers should familiarize themselves with USERRA as well as state laws designed for the support and protection of the military and update your company policies and procedures accordingly. The purpose of these laws is to support employees so that they may serve and protect.
Contact Kristin Tauras if you have any questions related to ISERRA or USERRA protections.