The Uniformed Services Employment and Reemployment Act (USERRA) and the newly enacted Illinois Servicemember Employment and Reemployment Rights Act (ISERRA) provide for certain rights for employees of private employers who serve in the uniformed services. Specifically, USERRA prohibits private employers from discriminating or retaliating against such employees based on their uniformed service and ensures that those employees receive certain benefits and reemployment rights, as well as limited protection from termination, upon return from military leave. In early 2006, regulations issued by the DOL’s Veterans’ Employment and Training Service went into effect, providing additional guidance on various provisions of USERRA.
Illinois law mirrors federal law in prohibiting employment discrimination due to an individual’s military service and these requirements have been consolidated under Illinois law into the ISERRA. Employers must grant all employees time off work for military duty and, upon discharge, must return the employee to his or her prior position or one of similar seniority, status and pay.
In addition, once an employee returns from military service in excess of 30 days, he or she is protected from discharge without cause for a specified period of time. Specifically, service between 30 and 180 days requires a period of six months protection from discharge without cause and service of more than 180 days garners protection from discharge without cause for one year. Applicable requirements are described herein with federal requirements under the USERRA.
Note: Employers are entitled to advance notice of an employee’s absence for military duty, unless the circumstances are such that advance notice would be impossible or unreasonable.
USERRA applies to virtually all employers in the United States, including private companies, tax-exempt entities and federal, state or local governments and agencies. There is no exception for small employers. In addition, some courts have even found that individuals may be liable for discrimination or retaliation under USERRA. ISERRA similarly applies to all employers in Illinois and incorporates the protections afforded to servicemembers under USERAA into Illinois law as well.
Any person who is a member of the “uniformed services” of the United States (or who applies to be a member of the uniformed services) is entitled to protection from discrimination or retaliation under USERRA and ISERRA. In addition, persons who are absent from their regular employment due to “service in the uniformed services” are entitled to certain reemployment rights and benefits. The term “uniformed services” is broad and includes:
The phrase “service in the uniformed services” is defined as the performance of a duty on a voluntary or involuntary basis in a uniformed service and includes:
Unlike some federal employment statutes, under USERRA, there is no minimum amount of time that an employee must work for the employer to be eligible for USERRA-protected leave. In fact, USERRA provides rights and protections to part-time and probationary employees and even to job applicants of private employers. However, USERRA does not cover temporary employees who are hired for a brief, non-recurrent period, where there is no expectation that the employment would continue for an indefinite or significant period of time. Similarly, ISERRA does not apply to independent contractors.
Note: USERRA does not protect employees who leave civilian employment to pursue a full-time career in the military.
An employee is responsible for notifying the employer of his or her military obligation.
An employee is not required to submit official documentation of his or her military orders at the time the employee requests the military leave of absence because military orders are often issued on an informal basis. The military rarely issues formal, written orders for inactive duty training, like weekend drills. Nevertheless, any orders issued by competent military authority are considered valid.
An employer may not require an employee to reschedule drills, military training or other military duty obligation to suit the employer’s needs. However, when military duties require an employee to be absent from work for an extended period, during times of acute business need or when the requested military leave is unduly burdensome for the employer, the employer may contact the commander of the employee’s unit to determine if the duty could be rescheduled or performed by another servicemember. If the commander determines that the employee’s military duty cannot be rescheduled or performed by another servicemember, the employer must permit the employee to perform his or her military duty.
An employee is not required to find someone to cover his or her work duties during the employee’s absence from work.
Under USERRA and the Illinois Service Member Employment and Reemployment Rights Act an employee who takes a military leave of absence must meet six eligibility criteria in order to be entitled to the reemployment rights and benefits under the acts:
USERRA does not define what it means to submit an application for reemployment. While a formal application is probably not necessary, something more than a mere inquiry concerning employment is usually required.
Example - Courts have found that an employee who simply asked his employer about conditions at the plant did not apply for reemployment under USERRA. Courts have found that an employee who asked for an application from the employer’s security guard also did not apply for reemployment under USERRA.
The employer is not permitted simply to terminate an employee who fails to return to work within the deadlines outlined above. If an employee fails to meet the USERRA reapplication deadlines, she or he should be subject to the employer’s standard explanation requirements and disciplinary procedures for employees who are absent for scheduled work.
The employer is not obligated to reemploy a person returning from military service if:
Except with respect to persons whose disability occurred in or was aggravated by military service, the position into which an employee is reinstated is determined by priority, based on the length of military service (excluding travel),
The employee must be reemployed:
The employee must be reemployed:
The fact that another employee was placed in the serviceperson’s former position does not render it impossible or unreasonable for the employer to reinstate the serviceperson. The employer is expected to accommodate a returning employee’s right to his or her position, regardless of whether reinstatement would result in displacement of another employee.
The COVID-19 pandemic did not result in any revisions to the USERRA statute and regulations, but the Veterans’ Employment and Training Service (VETS) issued a factsheet to address common scenarios that might arise from the application of USERRA in the context of the pandemic.
As a threshold matter, members of the National Guard or Reserves who are called to active duty in response to the COVID-19 emergency have employment and reemployment protections under USERRA. National Guard duty under state authority, commonly referred to as State Active Duty, is not covered under USERRA; however, members of the National Guard serving on State Active Duty have similar employment protections under state law.
Service members may be furloughed or laid off upon return from uniformed service, if it is reasonably certain they would have been furloughed or laid off had they not been absent for uniformed service. On the other hand, an employer may not delay the service members reemployment out of concern that the individual’s service in a COVID-19 affected area may have exposed him or her to COVID-19. When reemploying a service member who might have been exposed to COVID-19, an employer must make reasonable efforts in order to qualify the returning employee for his or her proper reemployment position. This can include temporarily providing paid leave, remote work, or another position during a period of quarantine for an exposed reemployed service member or COVID-19 infected reemployed service member, before reemploying the individual into his or her proper reemployment position.
In addition to the employer requirements that USERRA and ISERRA share, ISERRA also requires: