Effective Jan. 1, 2019, the rights of Illinois employees serving in the military will be governed by the Illinois Service Member Employment and Reemployment Rights Act (ISERRA), Public Act 100-1101.
In enacting ISERRA, the Illinois General Assembly streamlined the various job-related protections afforded to Illinois service members by consolidating those protections into the ISERRA statute and repealing the state's Military Leave of Absence Act, Public Employee Armed Services Rights Act, Municipal Employees Military Active Duty Act, and Local Government Employees Benefits Continuation Act. ISERRA leaves intact the Illinois Family Military Leave Act, which provides family members of a service member with up to 15 or 30 days of unpaid leave—depending on the employer's size—when that service member is called to military service lasting more than 30 days.
While much of ISERRA is modeled after the federal Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), the Illinois statute provides additional protections beyond USERRA, as described below.
An expanded definition of "military service." ISERRA expands upon USERRA's definition of "military service" to include the following:
- Service in a federally recognized auxiliary of the United States Armed Forces when performing official duties in support of military or civilian authorities as the result of an emergency.
- Service covered by the Illinois State Guard Act.
- A period during which service members are absent from employment for medical or dental treatment related to a condition, illness or injury sustained or aggravated during a period of active service.
Special treatment for performance reviews. Under ISERRA, a service member who is absent on military leave must be credited with the average of his or her efficiency or performance ratings or evaluations received over the three years preceding the leave, but in no case can the average rating be less than the rating that the employee received for the last rating period preceding his or her leave.
Enforcement and damages. ISERRA provides for a private right of action to individual employee claimants, as well as enforcement authority by the Illinois attorney general. Importantly, ISERRA expressly negates any statute of limitations for individuals or the attorney general to bring suit. In addition to actual damages, ISERRA authorizes the recovery of attorneys' fees and up to $50,000 in punitive damages to a prevailing plaintiff.
Creation of an ISERRA advocate. ISERRA calls for the creation of an "ISERRA Advocate" in the Illinois Attorney General's Office. The ISERRA Advocate's role is to assist both service members and employers with questions about service members' protections under the statute. More information about how to contact the ISERRA Advocate can be found on the Illinois attorney general's website.
Posting requirements. ISERRA calls for employers to post a notice of employee rights under ISERRA. The required posting can be downloaded from the Illinois Attorney General website.
ISERRA also provides public employees with certain paid benefits that are beyond the scope of this article.
ISERRA applies to virtually all Illinois employers, regardless of size. In anticipation of the January 1, 2019, effective date, Illinois employers are required to post the notice of rights in a location where other employee-facing notices are posted and may want to review any existing military leave policies and update them accordingly.
Tracey L. Truesdale is an attorney with Ogletree Deakins in Chicago. © 2018 Ogletree Deakins. All rights reserved. Reposted with permission.
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