New Illinois Military Leave Law Now in Effect
By Kelly A. Hayden, JD, Chief Legal Counsel
Published January 8, 2019
Effective January 1, 2019, Illinois has a new military leave law entitled the Illinois Service Member Employment and Reemployment Rights Act (ISERRA). The following is a Q & A regarding the law.
Q: Does this law replace USERRA?
A: No. USERRA, the Uniformed Services Employment and Reemployment Rights Act of 1994, is a federal law that provides job protections for military service members. While ISERRA is modeled after the federal law, it offers some additional protections, such as:
- The definition of military service has been expanded to include: (i) service in a federally recognized auxiliary of the U.S. Armed Forces when performing official duties in support of military or civilian authorities as the result of an emergency; (ii) service covered in the Illinois State Guard as defined by the Illinois State Guard Act; and (iii) a period for which an employee is 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 United States Department of Defense Military Health System.
- ISERRA also addresses performance reviews, requiring that if a service member is on military leave during a review, the service member must be credited with the average of his/her performance ratings over the three years preceding the leave. In no case can the service member’s rating be lower than the last rating received prior to the leave.
Q: How will ISERRA be enforced?
A: Employees will have a private right of action with no statute of limitations. The statute can also be enforced by the Illinois Attorney General. In fact, the Attorney General’s Office has created an “ISERRA Advocate” to assist employers and service members with questions under the statute. Penalties for violating the statute include actual damages, attorneys’ fees and up to $50,000 in punitive damages.
Q: Is there a posting requirement?
A: Yes. All employers must display a poster about ISERRA effective January 1. The poster can be found here: http://www.illinoisattorneygeneral.gov/rights/mvrb_iserra_poster_0818.pdf
Q: Do employers have to pay employees who take leave under ISERRA?
A: In the private sector, employers are not required to pay employees who take leave (though the employees must be permitted to use any available paid time off). Public sector employers may have pay obligations depending upon the nature of the leave. These employees should consult with legal counsel about the specific situation.
Members with questions should contact the HR Hotline at firstname.lastname@example.org or 800-448-4584.