330 ILCS 61/ Service Member Employment and Reemployment Rights Act.

(330 ILCS 61/Art. 1 heading) Article 1. General Provisions. (Source: P.A. 100-1101, eff. 1-1-19.)

(330 ILCS 61/1-1)

Sec. 1-1. Short title; references to Act.

(a) Short title. This Act may be cited as the Service Member Employment and Reemployment Rights Act.

(b) References to Act. This Act may be referred to as ISERRA.

(Source: P.A. 100-1101, eff. 1-1-19.)

(330 ILCS 61/1-5)

Sec. 1-5. Legislative intent. As a guide to the interpretation and application of this Act, the public policy of the State is declared as follows:

(1) The General Assembly recognizes the common public interest in safeguarding and promoting military service by:

(A) minimizing disadvantages to military service in civilian careers;

(B) providing for prompt reemployment and protections of service members in a manner that minimizes disruption to the lives of such employees, their employers, and co-workers;

(C) prohibiting discrimination against and interference with military service; and

(D) ensuring that public entities are model employers of reserve components by providing additional benefits.

(2) This law should be interpreted as comprising a foundation of protections guaranteed by this Act; therefore, nothing in this Act shall supersede, nullify, or diminish any federal or State law, including any local law or ordinance, contract, agreement, policy, plan, practice, or other matter that establishes a right or benefit that is more beneficial to, or is in addition to, a right or benefit provided for in this Act. The benefits and protections under this Act cannot be diminished.

(3) This Act shall be liberally construed so as to effectuate the purposes and provisions of this Act for the benefit of the service member who has set aside civilian pursuits to serve his or her country or this State in a time of need. Such sacrifice benefits everyone but is made by relatively few.

(4) The new service member benefits under this Act are in force on and after the effective date of this Act.

(Source: P.A. 100-1101, eff. 1-1-19.)

(330 ILCS 61/1-10)

Sec. 1-10. Definitions. As used in this Act:

"Accrue" means to accumulate in regular or increasing amounts over time subject to customary allocation of cost.

"Active duty" means any full-time military service regardless of length or voluntariness including, but not limited to, annual training, full-time National Guard duty, and State active duty. "Active duty" does not include any form of inactive duty service such as drill duty or muster duty. "Active duty", unless provided otherwise, includes active duty without pay.

"Active service" means all forms of active and inactive duty regardless of voluntariness including, but not limited to, annual training, active duty for training, initial active duty training, overseas training duty, full-time National Guard duty, active duty other than training, State active duty, mobilizations, and muster duty. "Active service", unless provided otherwise, includes active service without pay. "Active service" includes:

(1) Reserve component voluntary active service means service under one of the following authorities:

(A) any duty under 32 U.S.C. 502(f)(1)(B);

(B) active guard reserve duty, operational support, or additional duty under 10 U.S.C. 12301(d) or 32 U.S.C. 502(f)(1)(B);

(C) funeral honors under 10 U.S.C. 12503 or 32 U.S.C. 115;

(D) duty at the National Guard Bureau under 10 U.S.C. 12402;

(E) unsatisfactory participation under 10 U.S.C. 10148 or 10 U.S.C. 12303;

(F) discipline under 10 U.S.C. 802(d);

(G) extended active duty under 10 U.S.C. 12311; and

(H) reserve program administrator under 10 U.S.C. 10211.

(2) Reserve component involuntary active service includes, but is not limited to, service under one of the following authorities:

(A) annual training or drill requirements under 10 U.S.C. 10147, 10 U.S.C. 12301(b), or 32 U.S.C. 502(a);

(B) additional training duty or other duty under 32 U.S.C. 502(f)(1)(A);

(C) pre-planned or pre-programmed combatant commander support under 10 U.S.C. 12304b;

(D) mobilization under 10 U.S.C. 12301(a) or 10 U.S.C. 12302;

(E) presidential reserve call-up under 10 U.S.C. 12304;

(F) emergencies and natural disasters under 10 U.S.C. 12304a or 14 U.S.C. 712;

(G) muster duty under 10 U.S.C. 12319;

(H) retiree recall under 10 U.S.C. 688;

(I) captive status under 10 U.S.C. 12301(g);

(J) insurrection under 10 U.S.C. 331, 10 U.S.C. 332, or 10 U.S.C. 12406;

(K) pending line of duty determination for response to sexual assault under 10 U.S.C. 12323; and

(L) initial active duty for training under 10 U.S.C. 671.

Reserve component active service not listed in paragraph (1) or (2) shall be considered involuntary active service under paragraph (2).

"Active service without pay" means active service performed under any authority in which base pay is not received regardless of other allowances.

"Annual training" means any active duty performed under Section 10147 or 12301(b) of Title 10 of the United States Code or under Section 502(a) of Title 32 of the United States Code.

"Base pay" means the main component of military pay, whether active or inactive, based on rank and time in service. It does not include the addition of conditional funds for specific purposes such as allowances, incentive and special pay. Base pay, also known as basic pay, can be determined by referencing the appropriate military pay chart covering the time period in question located on the federal Defense Finance and Accounting Services website or as reflected on a federal Military Leave and Earnings Statement.

"Benefits" includes, but is not limited to, the terms, conditions, or privileges of employment, including any advantage, profit, privilege, gain, status, account, or interest, including wages or salary for work performed, that accrues by reason of an employment contract or agreement or an employer policy, plan, or practice and includes rights and benefits under a pension plan, a health plan, an employee stock ownership plan, insurance coverage and awards, bonuses, severance pay, supplemental unemployment benefits, vacations, and the opportunity to select work hours or location of employment.

"Differential compensation" means pay due when the employee's daily rate of compensation for military service is less than his or her daily rate of compensation as a public employee.

"Employee" means anyone employed by an employer. "Employee" includes any person who is a citizen, national, or permanent resident of the United States employed in a workplace that the State has legal authority to regulate business and employment. "Employee" does not include an independent contractor.

"Employer" means any person, institution, organization, or other entity that pays salary or wages for work performed or that has control over employment opportunities, including:

(1) a person, institution, organization, or other entity to whom the employer has delegated the performance of employment-related responsibilities;

(2) an employer of a public employee;

(3) any successor in interest to a person, institution, organization, or other entity referred to under this definition; and

(4) a person, institution, organization, or other entity that has been denied initial employment in violation of Section 5-15.

"Inactive duty" means inactive duty training, including drills, consisting of regularly scheduled unit training assemblies, additional training assemblies, periods of appropriate duty or equivalent training, and any special additional duties authorized for reserve component personnel by appropriate military authority. "Inactive duty" does not include active duty.

"Military leave" means a furlough or leave of absence while performing active service. It cannot be substituted for accrued vacation, annual, or similar leave with pay except at the sole discretion of the service member employee. It is not a benefit of employment that is requested but a legal requirement upon receiving notice of pending military service.

"Military service" means:

(1) Service in the Armed Forces of the United States, the National Guard of any state or territory regardless of status, and the State Guard as defined in the State Guard Act. "Military service", whether active or reserve, includes service under the authority of U.S.C. Titles 10, 14, or 32, or State active duty.

(2) Service in a 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.

(3) 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.

"Public employee" means any person classified as a full-time employee of the State of Illinois, a unit of local government, a public institution of higher education as defined in Section 1 of the Board of Higher Education Act, or a school district, other than an independent contractor.

"Reserve component" means the reserve components of Illinois and the United States Armed Forces regardless of status.

"Service member" means any person who is a member of a military service.

"State active duty" means full-time State-funded military duty under the command and control of the Governor and subject to the Military Code of Illinois.

"Unit of local government" means any city, village, town, county, or special district.

(Source: P.A. 102-1030, eff. 5-27-22; 103-154, eff. 6-30-23.)

(330 ILCS 61/1-15)

Sec. 1-15. Differential compensation.

(a) As used in this Section, "work days" are the actual number of days the employee would have worked during the period of military leave but for the service member's military obligation. "Work days" are tabulated without regard for the number of hours in a work day. Work hours that extend into the next calendar day count as 2 work days.

(b) Differential compensation under this Act is calculated on a daily basis and only applies to days in which the employee would have otherwise been scheduled or required to work as a public employee. Differential compensation shall be paid to all forms of active service except active service without pay. Differential compensation is calculated as follows:

(1) To calculate differential compensation, subtract the daily rate of compensation for military service from the daily rate of compensation as a public employee.

(2) To calculate the daily rate of compensation as a public employee, divide the employee's regular compensation as a public employee during the pay period by the number of work days in the pay period.

(3) To calculate the daily rate of compensation for military service, divide the employee's base pay for the applicable military service by the number of calendar days in the month the service member was paid by the military. For purposes of inactive duty, the daily rate of compensation for military service is calculated in accordance with the applicable drill pay chart issued by Defense Finance and Accounting Services.

(Source: P.A. 100-1101, eff. 1-1-19.)

(330 ILCS 61/1-20)

Sec. 1-20. Independent contractors. Whether an individual is an employee or independent contractor under this Act is determined based on the following factors:

(1) the extent of the employer's right to control the manner in which the individual's work is to be performed;

(2) the opportunity for profit or loss that depends upon the individual's managerial skill;

(3) any investment in equipment or materials required for the individual's tasks, or his or her employment of helpers;

(4) whether the service the individual performs requires a special skill;

(5) the degree of permanence of the individual's working relationship; and

(6) whether the service the individual performs is an integral part of the employer's business.

No single one of these factors is controlling, but all are relevant to determining whether an individual is an employee or an independent contractor.

(Source: P.A. 100-1101, eff. 1-1-19.)

(330 ILCS 61/Art. 5 heading) Article 5. Service Member Employment Protections. (Source: P.A. 100-1101, eff. 1-1-19.)

(330 ILCS 61/5-5)

Sec. 5-5. Basic protections. This Section incorporates Sections 4304, 4312, 4313, 4316, 4317, and 4318 of the Uniformed Services Employment and Reemployment Rights Act under Title 38 of the United States Code, as may be amended, including case law and regulations promulgated under that Act, subject to the following:

(1) For the purposes of this Section, all employment rights shall be extended to all employees in military service under this Act, unless otherwise stated.

(2) Military leave. A service member employee is not required to get permission from his or her employer for military leave. The service member employee is only required to give such employer advance notice of pending service. This advance notice entitles a service member employee to military leave.

An employer may not impose conditions for military leave, such as work shift replacement, not otherwise imposed by this Act or other applicable law. This paragraph shall not be construed to prevent an employer from providing scheduling options to employees in lieu of paid military leave.

A service member employee is not required to accommodate his or her employer's needs as to the timing, frequency, or duration of military leave; however, employers are permitted to bring concerns over the timing, frequency, or duration of military leave to the attention of the appropriate military authority. The accommodation of these requests are subject to military law and discretion.

Military necessity as an exception to advance notice of pending military leave for State active duty will be determined by appropriate State military authority and is not subject to judicial review.

For purposes of notice of pending military service under paragraphs (2) or (3) of the definition of "military service" under Section 1-10, an employer may require notice by appropriate military authority on official letterhead. For purposes of this paragraph, notice exceptions do not apply.

(3) Service, efficiency, and performance rating. A service member employee who is absent on military leave shall, minimally, for the period of military leave, be credited with the average of the efficiency or performance ratings or evaluations received for the 3 years immediately before the absence for military leave. Additionally, the rating shall not be less than the rating that he or she received for the rated period immediately prior to his or her absence on military leave. In computing seniority and service requirements for promotion eligibility or any other benefit of employment, the period of military duty shall be counted as civilian service. This paragraph does not apply to probationary periods.

(4) State active duty ineligible discharge. For purposes of State active duty, a disqualifying discharge or separation will be the State equivalent under the Military Code of Illinois for purposes of ineligibility of reemployment under the Uniformed Services Employment and Reemployment Rights Act as determined by appropriate State military authority.

(5) A retroactive upgrade of a disqualifying discharge or release will restore reemployment rights providing the service member employee otherwise meets this Act's eligibility criteria.

(Source: P.A. 100-1101, eff. 1-1-19.)

(330 ILCS 61/5-10)

Sec. 5-10. Additional benefits for public employee members of a reserve component.

(a) Concurrent compensation. During periods of military leave for annual training, public employees shall continue to receive full compensation as a public employee for up to 30 days per calendar year and military leave for purposes of receiving concurrent compensation may be performed nonsynchronously.

(b) Differential Compensation. During periods of military leave for active service, public employees shall receive differential compensation subject to the following:

(1) Public employees may elect the use of accrued vacation, annual, or similar leave with pay in lieu of differential compensation during any period of military leave.

(2) Differential compensation for voluntary active service under Section 1-10 is limited to 60 work days in a calendar year.

(3) Differential compensation shall not be paid for active service without pay.

(4) Public employees who have exhausted concurrent compensation under subsection (a) of Section 5-10 in a calendar year shall receive differential compensation when authorized under subsection (b) of Section 5-10 in the same calendar year.

(c) Employer-based health plan benefits shall continue in accordance with Section 5-5 of this Act, except the employer's share of the full premium and administrative costs shall continue to be paid by the employer for active duty.

(d) In the event that 20% or more employees of a unit of local government are mobilized under 10 U.S.C. 12301(a), 10 U.S.C. 12302, 10 U.S.C. 12304, or 10 U.S.C. 12304a, or 14 U.S.C. 712 concurrently, additional benefits under this Section are not required without funding for that purpose.

(Source: P.A. 100-1101, eff. 1-1-19.)

(330 ILCS 61/5-15)

Sec. 5-15. Prohibitions on discrimination. For the purposes of this Section, Section 4311 of the federal Uniformed Services Employment and Reemployment Rights Act entitled Discrimination Against Persons Who Serve in the Uniformed Services and Acts of Reprisal Prohibited and the regulations promulgated under that Act are incorporated.

(Source: P.A. 100-1101, eff. 1-1-19.)

(330 ILCS 61/5-20)

Sec. 5-20. Notice of rights and duties.

(a) Each employer shall provide to employees entitled to rights and benefits under this Act a notice of the rights, benefits, and obligations of service member employees under this Act.

(b) The requirement for the provision of notice under this Act may be met by the posting of the notice where the employer customarily places notices for employees.

(Source: P.A. 100-1101, eff. 1-1-19; 101-81, eff. 7-12-19.)

(330 ILCS 61/Art. 10 heading) Article 10. Violations. (Source: P.A. 100-1101, eff. 1-1-19.)

(330 ILCS 61/10-5)

Sec. 10-5. Violations. Any violation of Article 5 is a violation of this Act.

(Source: P.A. 100-1101, eff. 1-1-19.)

(330 ILCS 61/Art. 15 heading) Article 15. Compliance. (Source: P.A. 100-1101, eff. 1-1-19.)

(330 ILCS 61/15-5)

Sec. 15-5. Private right enforcement. A service member may bring a private civil action for enforcement of a violation of this Act. A violation of Section 5-20 may not be a sole basis for a civil action under this Act.

(Source: P.A. 100-1101, eff. 1-1-19.)

(330 ILCS 61/15-10)

Sec. 15-10. Circuit court actions by the Attorney General.

(a) If the Attorney General has reasonable cause to believe that any employer is engaged in a violation of this Act, then the Attorney General may commence a civil action in the name of the People of the State, as parens patriae on behalf of persons within the State to enforce the provisions of this Act in any appropriate circuit court.

(b) Prior to initiating a civil action, the Attorney General shall conduct a preliminary investigation to determine whether there is reasonable cause to believe that any employer is engaged in a violation of this Act and whether the dispute can be resolved without litigation. In conducting this investigation, the Attorney General may:

(1) require the individual or entity to file a statement or report in writing under oath or otherwise, as to all information the Attorney General may consider necessary;

(2) examine under oath any person alleged to have participated in or with knowledge of the alleged violation; or

(3) issue subpoenas or conduct hearings in aid of any investigation.

(c) Service by the Attorney General of any notice requiring a person to file a statement or report, or of a subpoena upon any person, shall be made:

(1) personally by delivery of a duly executed copy thereof to the person to be served or, if a person is not a natural person, in the manner provided by the Civil Procedure law when a complaint is filed; or

(2) by mailing by certified mail a duly executed copy thereof to the person to be served at his last known abode or principal place of business within this State.

(d) In lieu of a civil action, the individual or entity alleged to have violated this Act may enter into an Assurance of Voluntary Compliance with respect to the alleged violation.

(e) Whenever any person fails to comply with any subpoena issued under this Section or whenever satisfactory copying or reproduction of any material requested in an investigation cannot be done and the person refuses to surrender the material, the Attorney General may file in any appropriate circuit court, and serve upon the person, a petition for a court order for the enforcement of the subpoena or other request.

Any person who has received a subpoena issued under subsection (b) may file in the appropriate circuit court, and serve upon the Attorney General, a petition for a court order to modify or set aside the subpoena or other request. The petition must be filed either: (1) within 20 days after the date of service of the subpoena or at any time before the return date specified in the subpoena, whichever date is earlier, or (2) within a longer period as may be prescribed in writing by the Attorney General.

The petition shall specify each ground upon which the petitioner relies in seeking relief under this subsection and may be based upon any failure of the subpoena to comply with the provisions of this Section or upon any constitutional or other legal right or privilege of the petitioner. During the pendency of the petition in the court, the court may stay, as it deems proper, the running of the time allowed for compliance with the subpoena or other request, in whole or in part, except that the petitioner shall comply with any portion of the subpoena or other request not sought to be modified or set aside.

(Source: P.A. 100-1101, eff. 1-1-19.)

(330 ILCS 61/15-20)

Sec. 15-20. Remedies.

(a) A court in its discretion may award actual damages or any other relief that the court deems proper.

Punitive damages are not authorized except in cases involving violations under Section 5-15 and may not exceed $50,000 per violation.

Reasonable attorney's fees may be awarded to the prevailing party, however, prevailing defendants may only receive attorney's fees if the court makes a finding that the plaintiff acted in bad faith.

(b) The Attorney General may bring an action in the name of the People of the State against any employer to restrain by preliminary or permanent injunction the use of any practice that violates this Act. In such an action, the court may award restitution to a service member. In addition, the court may assess a civil penalty not to exceed $5,000 per violation of this Act.

If a court orders a party to make payments to the Attorney General and the payments are to be used for the operations of the Office of the Attorney General or a party agrees, in an Assurance of Voluntary Compliance under this Act, to make payment to the Attorney General for the operations of the Office of the Attorney General, then moneys shall be deposited into the Attorney General Court Ordered and Voluntary Compliance Payment Projects Fund. Moneys in the Fund shall be used, subject to appropriation, for the performance of any function pertaining to the exercise of the duties of the Attorney General including, but not limited to, enforcement of any law of this State and conducting public education programs; however, any moneys in the Fund that are required by the court or by an agreement to be used for a particular purpose shall be used for that purpose.

In any action brought under the provisions of this Act, the Attorney General is entitled to recover costs.

(Source: P.A. 100-1101, eff. 1-1-19.)

(330 ILCS 61/Art. 20 heading) Article 20. Home Rule. (Source: P.A. 100-1101, eff. 1-1-19.)

(330 ILCS 61/20-5)

Sec. 20-5. Home rule. A home rule unit may not regulate its employees in a manner that is inconsistent with the regulation of employees by the State under this Act. This Section is a limitation under subsection (i) of Section 6 of Article VII of the Illinois Constitution on the concurrent exercise by home rule units of powers and functions exercised by the State.

(Source: P.A. 100-1101, eff. 1-1-19.)

(330 ILCS 61/Art. 25 heading) Article 25. Statute of Limitations. (Source: P.A. 100-1101, eff. 1-1-19.)

(330 ILCS 61/25-5)

Sec. 25-5. Inapplicability of statute of limitations. No statute of limitations applies to any private right or Attorney General action under this Act.

(Source: P.A. 100-1101, eff. 1-1-19.)

(330 ILCS 61/Art. 30 heading) Article 30. Illinois Service Member Employment and Reemployment Rights Act Advocate. (Source: P.A. 100-1101, eff. 1-1-19.)

(330 ILCS 61/30-5)

Sec. 30-5. ISERRA Advocate.

(a) The Attorney General shall appoint an Illinois Service Member Employment and Reemployment Rights Act Advocate and provide staff as are deemed necessary by the Attorney General for the Advocate. The ISERRA Advocate shall be an attorney licensed to practice in Illinois.

(b) Through the ISERRA Advocate, the Attorney General shall have the power:

(1) to establish and make available a program to provide training to employers and service members;

(2) to prepare and make available interpretative and educational materials and programs;

(3) to respond to informal inquiries made by members of the public and public bodies;

(4) to prepare and make available required Service Member Employment and Reemployment Rights Act notice to employers;

(5) to investigate allegations of violations of this Act on behalf of the Attorney General; and

(6) to prepare an annual report on this Act for the Attorney General.

(Source: P.A. 100-1101, eff. 1-1-19.)

(330 ILCS 61/Art. 35 heading) Article 35. Rulemaking. (Source: P.A. 100-1101, eff. 1-1-19.)

(330 ILCS 61/35-5)

Sec. 35-5. Rules. To accomplish the objectives and to carry out the duties prescribed by this Act, the Attorney General may adopt the rules necessary to implement this Act.

(Source: P.A. 100-1101, eff. 1-1-19.)

(330 ILCS 61/Art. 40 heading) Article 40. Coverage Under Special Circumstances. (Source: P.A. 100-1101, eff. 1-1-19.)

(330 ILCS 61/40-5)

Sec. 40-5. Governor's election. In a time of national or State emergency, the Governor has the authority to designate any category of persons as entitled to protections under this Act.

(Source: P.A. 100-1101, eff. 1-1-19.)

(330 ILCS 61/Art. 90 heading) Article 90. Amendatory Provisions. (Source: P.A. 100-1101, eff. 1-1-19.)

(330 ILCS 61/90-5)

Sec. 90-5. The Military Leave of Absence Act is repealed.

(Source: P.A. 100-1101, eff. 1-1-19.)

(330 ILCS 61/90-10)

Sec. 90-10. The Public Employee Armed Services Rights Act is repealed.

(Source: P.A. 100-1101, eff. 1-1-19.)

(330 ILCS 61/90-15)

Sec. 90-15. (Amendatory provisions; text omitted).

(Source: P.A. 100-1101, eff. 1-1-19; text omitted.)

(330 ILCS 61/90-20)

Sec. 90-20. The Military Code of Illinois is amended by repealing Sections 22-10, 30.1, 30.5, 30.10, 30.20, and 30.15.

(Source: P.A. 100-1101, eff. 1-1-19.)

(330 ILCS 61/90-25)

Sec. 90-25. The State Guard Act is amended by repealing Section 79.

(Source: P.A. 100-1101, eff. 1-1-19.)

(330 ILCS 61/90-30)

Sec. 90-30. The Municipal Employees Military Active Duty Act is repealed.

(Source: P.A. 100-1101, eff. 1-1-19.)

(330 ILCS 61/90-35)

Sec. 90-35. The Local Government Employees Benefits Continuation Act is repealed.

(Source: P.A. 100-1101, eff. 1-1-19.)

(330 ILCS 61/90-40)

Sec. 90-40. (Amendatory provisions; text omitted).

(Source: P.A. 100-1101, eff. 1-1-19; text omitted.)

(330 ILCS 61/90-45)

Sec. 90-45. (Amendatory provisions; text omitted).

(Source: P.A. 100-1101, eff. 1-1-19; text omitted.)

(330 ILCS 61/90-50)

Sec. 90-50. (Amendatory provisions; text omitted).

(Source: P.A. 100-1101, eff. 1-1-19; text omitted.)

(330 ILCS 61/90-55)

Sec. 90-55. The Service Member's Employment Tenure Act is amended by repealing Sections 4, 4.5, 5, 6, 7, and 8.

(Source: P.A. 100-1101, eff. 1-1-19.)

(330 ILCS 61/90-60)

Sec. 90-60. (Amendatory provisions; text omitted).

(Source: P.A. 100-1101, eff. 1-1-19; text omitted.)

(330 ILCS 61/90-65)

Sec. 90-65. (Amendatory provisions; text omitted).

(Source: P.A. 100-1101, eff. 1-1-19; text omitted.)

(330 ILCS 61/90-70)

Sec. 90-70. (Amendatory provisions; text omitted).

(Source: P.A. 100-1101, eff. 1-1-19; text omitted.)