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Attention All Employers! Illinois Revises its Military Leave Laws

This summer, Illinois passed the Illinois Service Member Employment and Reemployment Rights Act (ISERRA). This law is effective January 1, 2019. The new ISERRA explicitly incorporates the federal Uniform Services Employment and Reemployment Rights Act (USERRA) for its basic protections, case law, and regulations. This post hopefully will serve as a USERRA refresher as well as a summary of the new ISERRA obligations.

ISERRA clarifies Illinois law regarding military leave and reinstatement of employment for all employers with employees who perform military service. Critically, ISERRA also provides some much needed precision for public employers who are unclear about their obligations to continue the pay of their military member employees.

Employers with questions regarding their employees' military service should contact experienced employment counsel. Among the many difficulties in this area is simply that there are many different types of military service, and that these types will likely be familiar to an employee who is a military member but perhaps unfamiliar to the employer.

USERRA

As background, USERRA imposes obligations on all private and public employers to provide employees with leave to serve in the military. USERRA also requires employers to reinstate employees returning from military leave to the job the employee would have attained had he not been absent for military leave, with the same seniority, status and pay, and other rights and benefits as determined by seniority.

Coverage

USERRA covers employees entering active duty service, as well as employees who perform reserve service under the various components of the reserves and National Guard.

USERRA covers "service in the uniformed services," which means performing military duties, whether voluntarily or involuntarily for active duty, active duty for training, inactive duty for training, inactive duty training, fitness testing, and full-time National Guard duty.

ISERRA copies this coverage, but it expands it in a few important ways. ISERRA is more explicit in covering "active duty" as "full-time military service" regardless of the voluntariness of the employee's service. ISERRA also provides coverage for "active service," which it defines as all forms of active and inactive duty regardless of voluntariness, including training and muster. Most notably, USERRA does not cover National Guardsman who are called up by the Governor of their state to perform what is called "State Active Duty," which excluded Guardsmen from protection for their state service in disaster relief or law enforcement. ISERRA takes the opposite approach, and does apply its protections to State Active Duty.

Pay

USERRA does not require private employers to provide paid military leaves of absence. However, due to Fair Labor Standards Act requirements, employers should continue to pay the full salary of an exempt, salaried employee who works any portion of a workweek but is absent the remainder of the week for military-related duties. In either case, private employers are free to allow (but cannot require) employees to use accrued vacation or annual leave while performing military duty. Employees are entitled to the same non-seniority benefits provided to employees on other leaves.

Pay for Illinois Public Employees

However, a complex web of Illinois laws required certain pay to be maintained for public employees. ISERRA simplifies public employers' compliance by centralizing the law into one Act. Public employees are entitled to full salary continuation for periods of annual training up to 30 days per calendar year, which may be served "nonsynchronously." Public employees are also entitled to "differential compensation" for periods of military leave for active service for up to 60 days—meaning, the public employer must continue to pay the public employee any difference between the employee's civilian and military pay. Public employees may instead elect to use accrued vacation, annual, or similar leave in lieu of receiving differential pay.

Public employees' health benefits continue as with other employees in the manner noted above, but under ISERRA, public employers must pay their share of the full premium and administrative costs during the active duty service.

Employee Obligations

Both USERRA and ISERRA require employees to provide advance written or verbal notice to their employers for all military duty unless giving notice is impossible, unreasonable, or precluded by military necessity. Employers may not impose conditions for military leave, but are permitted to provide scheduling options in lieu of paid military leave. Likewise, the military and the servicemember employee are not required to accommodate the employer's needs when scheduling military service. That said, unique to ISERRA is a provision allowing an employer to contact the "appropriate military authority" to express "concerns over the timing, frequency, or duration of military leave."

Employees are obligated to inform their employers of their return from military service within certain timeframes. For brief leaves of 30 days or less, the employee must return to work on the next regularly scheduled work period. For longer periods, the employee must submit an application for reemployment within 14 days for 31-181 days of leave, or within 90 days for leave longer than 181 days (up to 5 years).

Other Protections

Under ISERRA, employees absent on military leave are entitled to receive certain minimum performance evaluations—that is, "the average of efficiency or performance ratings or evaluations received for the 3 years immediately before the absence." Military members are also protected from discrimination.

ISERRA allows servicemembers to bring a private civil action for violations of ISERRA, with the prevailing party being entitled to attorney's fees and damages. The Attorney General will establish an "Illinois Service Member Employment and Reemployment Rights Act Advocate," and may also file actions in state court, which may result in per-violation fines. Violations of USERRA may also be pursued by employees, and enforcement of USERRA is a Department of Justice priority.

Employers with questions about their USERRA or ISERRA obligations should contact Evan Bonnett of Hinshaw's Rockford office, or their usual Hinshaw attorney.

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