Employment Law Update: ISERRA

ISERRA

Effective January 1, 2019, Illinois put several new employment laws in place. One of those laws is the Illinois Service Member Employment and Re-Employment Rights Act (ISERRA). From what I can tell, the purpose of this law was a simplification. It repeals and replaces the Military Leave of Absence Act, the Public Employee Armed Services Rights Act, The Municipal Employees Military Active Duty Act the Local Government Employee Benefits Continuation Act but does not repeal the Illinois FAMILY Military Leave Act. I’m not going to lie, working in the Private sector, I didn’t even know about some of these laws.

That being said, ISERRA is very similar to the federal law (USERRA) with the exception that on the state level, it provides some additional protections:

  • Expands the definition of “Military Service.” ISERRA defines “military service” as not only service in the Armed Forces of the United States or National Guard (as provided under USERRA), but also “state active duty” (i.e. the “full-time State-funded military duty under the command and control of the Governor”), or service for any “federally recognized auxiliary of the United States Armed Forces when performing official duties in support of military or civilian authorities as a result of an emergency.” This would include National Guardsman who are called upon but the state Governor to perform State Active Duty which is not covered by USERRA.
  • Salary Continuation. Under the newly formed ISERRA, public sector employees are entitled to full salary continuation for periods of annual training up to 30 days each calendar year. AND, if the public employee is out for 60 days, they are entitled to differential pay. Meaning they can be paid the difference between their normal salary and their military salary.
  • Notice of Leave. Under ISERRA, an employee is not required to get permission but is required to give advance notice of pending service. Employers are not allowed to impose conditions upon leave either, such as shift replacements.
  • Provides special treatment for performance reviews and seniority. If you have a service member utilizing ISERRA, their review must be treated with care. They must be credited with the average of his/her own efficiency or performance ratings/evaluations received over the three years preceding the leave, but in no case can the average rating be less than the employee received for the last rating period preceding his/her leave. Additionally, military periods must be counted as civilian service when computing seniority for promotion eligibility or promotions.
  • 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. The court may award actual damages “or any other relief that the court deems proper.” Punitive damages are not authorized except in cases involving discrimination against service member employees, and may not exceed $50,000 per violation. ISERRA negates any statute of limitations for individuals or the attorney general to bring suit.
  • 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. You may find more information about the advocate on the Illinois attorney general’s website.
  • Posting Requirements. ISERRA requires that employers post a notice of employee rights. This free posting can be downloaded from the Illinois Attorney General website.

 

So what are my next steps?

  1. Review and revise your handbook and/or policies and procedures concerning leaves of absence. ISERRA applies to all Illinois employers. Private, public, large and small.
  2. Train your supervisors to be aware of the policy and the next steps when someone in their department is facing an upcoming leave.
  3. Post the notice of employee rights.

 

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Megan Jones, Human Resources Director

Priority Staffing Group – Marion, Illinois

Megan Jones