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.)