Illinois Reemployment Rights
By Legal Office, 126th Air Refueling Wing
/ Published November 13, 2008
Scott AFB, Ill. --
Illinois state law provides reemployment rights to Illinois National Guard personnel called to military duty. When performing federally mandated training or duty under titles 32 or 10 of the United States Code (monthly drills, annual training, or federal active duty), these rights are in addition to those provided by federal law. When performing State Active Duty, however, federal reemployment law does not apply and state reemployment rights law applies exclusively.
The state law is called the Service Men's Employment Tenure Act, and is located at 330 Illinois Compiled Statutes (ILCS) 60. It requires private and public employers to reemploy military personnel who leave work for military service, if:
- They are still qualified to perform the duties of the position of the civilian employment; and
- Application for reemployment is made within 90 days after leaving military service, or within 1 year if hospitalized after discharge; and
- Military service was satisfactorily completed, or an honorable discharge was received.
If those requirements are met, then the military member must be restored to the job he/she left, with the same increases in status, seniority and wages that were earned during military service by employees in like positions who were on the job at the time of entry into military service, OR to a position of like seniority, status and pay. The only exception is if the employer's circumstances have so changed as to make it impossible or unreasonable to do reemploy the military member.
If a military member whose disqualification for reemployment is due to disability sustained during military service, but is qualified to perform the duties of any other position of that employer, the military member must be reemployed in the job he/she can perform which will provide him/her will like seniority, status, and pay, or the nearest approximation consistent with his/her particular circumstances, unless in the case of a private employer, the employer's circumstances have so changed as to make it impossible or unreasonable to do so.
If an employer fills the position the military member had, upon application for reemployment, the employer must reinstate the military member, and may release the non-military person who was placed in the job.
Upon reemployment, the military member is entitled to restoration of all insurance and other benefits, without loss of seniority, as if he/she were on furlough.
An Illinois National Guard soldier who leaves classes at a public Illinois university, college or community college due to being called to State Active Duty for more than 7 days, is entitled to a full refund of tuition and fees. In addition, under those circumstances, withdrawal from courses will not affect the student's final grade point average.
Remedies available under the Act consist of the right to file a lawsuit in state court to compel the employer to comply with the law, obtain compensatory damages, and attorney's fees.
The Act does not apply to temporary or casual workers.