by Brian O’Connor (Fall 2018)
“Change is the only constant in life” – Heraclitus of Ephesus, 5th Century BCE
On August 26, 2018, the Governor approved Senate Bill 3547 into law as Public Act 100-1101. The law creates a new act, the Illinois Service Member Employment and Reemployment Rights Act (ISERRA) and becomes effective January 1, 2019. ISERRA clarifies and continues rights and duties of public employees, repealing several laws and amending other laws. ISERRA makes the topics of rights, benefits and obligations more uniform and consistent. Following is a brief synopsis of ISERRA’s more salient features.
The preeminent federal law on this topic is and remains the Uniformed Services Employment and Reemployment Rights Act (“USERRA”, 38 U.S.C. 4301 et seq.). ISERRA cites supportively of USERRA’s provisions, mirrors some of USERRA’s statutory language, and adopts a number of USERRA’s employee protections by reference including reemployment; and, continuation of benefits during military service (such as seniority or other entitlements, pension participation, and health insurance participation).
ISERRA consolidates a public employee’s protections, rights, benefits and obligations during military service currently addressed in various other State laws. In doing so, on January 1, 2019, ISERRA repeals the following State laws now in effect:
- The Military Leave of Absence Act (5 ILCS 325/0.01 et seq.),
- The Local Government Employees Benefits Continuation Act (50 ILCS 140/1 et seq.),
- The Public Employee Armed Services Rights Act (5 ILCS 330/1 et seq.), and
- The Municipal Employees Military Active Duty Act (50 ILCS 120/0.01 et seq.).
Several other laws are amended; most notably, the Service Member’s Employment Tenure Act (330 ILCS 60/1 et seq.).
Once vague terms are defined with greater precision in Section 1-10 of ISERRA. Several key and relevant terms include (defined terms in quotes):
- “Active Service” which includes both “Active Duty” and “Inactive Duty,”
- “Benefits” including wages or salary, as well as awards, bonuses, severance pay, and rights and benefits under a pension plan and health plan,
- “Differential Compensation” for most, but not all, periods of military service is the service member’s daily rate of pay as an employee less his or her daily military “Basic Pay,”
- “Public Employee” which does not include “Independent Contractors,” and
- “Unit of Local Government.”
The definitions provide specificity and clarity to better help define and understand employer and employee protections, rights, benefits and obligations.
Time off from work for military service is termed “military leave” in ISERRA. Military leave is addressed in Section 5-5. The service member is only required to give the employer notice of pending military service: the employer’s permission is not required, nor may the employer impose conditions for an employee’s military leave. Advance notice of pending military service to the employer entitles the employee to military leave.
Employee Service Member Pay
Employee pay during military service is addressed in State law and not in USERRA. Pay remains similar to current law best summarized in the Military Leave of Absence Act, but with notable changes in the method of calculation and imposition of calendar year benefit limits.
Differential compensation is addressed in ISERRA’s [Sections 5-10(b) and 1-15], including an expanded explanation and direction on how differential compensation is calculated. CAUTION: This method is more precise and possibly different than prior possible methods of calculation. Also, differential compensation is not paid for certain categories of military service.
“Differential Compensation” of Section 5-10(b) is distinguished from “Concurrent Compensation,” which is addressed in Section 5-10(a). Under concurrent compensation, the service member continues to receive his or her full employee pay in addition to any military pay for periods of military service classified as being “Annual Training.” Annual training may be performed in a single time period or may be in a series of non-consecutive shorter time periods.
There is a calendar year limit to an employee’s pay during military service. For “Concurrent Pay”, the limit is 30 days, while for “Differential Pay”, it is 60 days. An employee eligible for concurrent pay but having exceeded the 30-day limit may receive differential pay for the excess time up to the 60-day calendar limit.
Nondiscrimination. ISERRA’s Section 5-15 expressly prohibits discrimination by an employer incorporating by reference USERRA’s Section 4311.
Employer Notice. ISERRA’s Section 5-20 provides that employers must provide employees notice of rights, benefits and obligations under ISERRA.
Compliance. Compliance may be maintained by private action for enforcement [Section 15-5] or action by the Attorney General [Section 15-10]. There is no statute of limitations on compliance efforts [Section 25-5]. Remedies [Section 15-20(a)] available to a court include actual damages, punitive damages for actions brought by the Attorney General, and possible attorney’s fees.
ISERRA Advocate. The Attorney General shall appoint an Advocate with staff [Section 30-5] to facilitate implementation and investigation of reports of noncompliance.