Friday, October 5, 2018

Ensuring Public Entities are Model Employers of Reserve Components

Effective January 1, 2019, Public Act 100-1101 (Service Member Employment and Reemployment Act) consolidates and updates various Illinois provisions regarding the rights of Illinois employees called to active duty. In addition to basic rights provided in the Act for employees of private employers, the Act provides additional benefits for public employees.

Public employers are currently required to pay differential pay to employees mobilized to active military duty (50 ILCS 140/1). The new Act will require payment of concurrent pay during periods of military leave for annual training. Public employees will continue to receive full compensation as a public employee for up to 30 days per calendar year for such training, and the training leave may be intermittent. Differential pay will continue to be required for all forms of active service, except such pay is limited to 60 days for voluntary active service as defined under the Act. Employees may elect to receive accrued paid leave or vacation pay in lieu of differential pay.

Public employers are also required to pay the full premium for employer based health plan benefits while the employee is on active duty.

Basic rights provided to all service member employees (public and private) called to active duty include the following:
  • Employees not required to get permission for military leave;
  • Employees not required to change work schedule to accommodate the employer;
  • Employees not subject to employer limits on timing, frequency or duration of military leave;
  • Employees only required to provide proof of leave on official military letterhead for service in auxiliary forces and when on leave for medical or dental treatment related to military service;
  • Employees on leave entitled to receive performance evaluations based on the average of the 3 years immediately before such leave, but no lower than the evaluation rating received for the period immediately prior to the leave;
  • Employees returning from leave are entitled to be reinstated to their former employment with no loss of seniority or other benefits that generally accrue during a furlough.
  • Employees entitled to continued participation in pension plans and the employer is required to pay any employee contribution during the leave (35 U.S.C. 4318).

Other Provisions under the Act:
  • Preempt any inconsistent Home Rule ordinances;
  • Remove all limitation periods for bringing an action to enforce rights under the Act;
  • Provide for awards of actual damages, and for violation of the non-discrimination provisions of the Act, punitive damages up to $50,000.00 per violation;
  • Provide for the award of attorney fees to the prevailing party, except employers may receive attorney fees only if the court finds the plaintiff acted in bad faith;
  • Require posting of Notice of Rights;
  • Provide for an advocate position in the Office of the Attorney General;
  • Give the Attorney General authority to enforce the Act.