Overview: Effective January 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.
Effective Date: January 1, 2019
Details:
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, described below.
Leave
In addition to leave protections under USERRA, ISERRA’s basic protections provide that service member employees are not required to get permission for military leave. Service members are simply required to give employers advance notice of pending service. In certain circumstances, employers may require the notice on official letterhead of the appropriate military authority. However, military necessity is an exception to the advance notice requirement.
Under ISERRA, “military leave” means leave while performing active service. Military service means service in the U.S. armed forces, the National Guard of any state, and the Illinois State Guard. It also includes service in U.S. armed forces auxiliary units and periods for medical treatment for conditions, illness, or injuries sustained during active service and in which treatment is paid for by the U.S. Department of Defense military health system.
Further, employers may not impose conditions on using military leave, such as requiring an employee to find a shift replacement. Nonetheless, employers are allowed to voice their concerns over the timing, frequency or duration of military leave with the appropriate military authority.
Reinstatement
In addition to reinstatement rights under USERRA, under ISERRA, service members absent on military leave must be credited with the average of performance ratings or evaluations received for the three years immediately prior to the military leave and the rating must not be less than the rating that he or she received for the rated period immediately prior to the military leave. Seniority and service requirements for promotions or other benefit must be counted as civilian service.
A disqualifying discharge or separation is the state equivalent under the Military Code of Illinois for purposes of ineligibility for reemployment under USERRA. But retroactive upgrades of a disqualifying discharge or release will restore employment rights, provided that the service member otherwise meets ISERRA eligibility criteria. Public employees are entitled to additional benefits
Discrimination Prohibitions
ISERRA incorporates the anti-discrimination provisions of USERRA section 4311 and its accompanying regulations.
Employer Notice
Employers must provide a notice of ISERRA’s rights, benefits, and obligations to all employees entitled to ISERRA rights and benefits. An employer may comply with the notice requirement by posting the notice in the employer’s customary place for notices to employees, rather than by individual distribution. The required posting can be downloaded from the Illinois Attorney General website.
Action Required: Illinois employers should review and revise, if necessary, policies and procedures for service members and train human resources, payroll and supervisory staff on the amended requirements. Illinois employers should also make sure to post the required posting.
As always, please be sure to contact your Human Resources Business Partner if you have any questions.
*Produced in partnership with Littler Mendelson, P.C.
This content provides practical information concerning the subject matter covered and is provided with the understanding that ADP is not rendering legal advice.