This is the second hypothetical in our series showing how well-intentioned employers can violate unfamiliar state laws.
A manager of a Chicago, Illinois restaurant calls you regarding a long-term employee whose son is in the U.S. Marines. The employee would like to take a month off work to spend time with his son before he departs for Iraq. The employee does not have any unused vacation or other form of leave available under the Company’s policies. The manager advises that the employee’s performance is average, but a 30-day leave would negatively impact the restaurant’s operations during the busy summer months. You advise the manager that the Family & Medical Leave Act does not apply because neither the employee nor his family member suffers from a serious health condition, and the Uniformed Services Employment & Reemployment Act (USERRA) is inapplicable because that statute only protects employees who are, themselves, in the military. You further inform the manager that it is permissible to deny the employee leave and that the manager should apply the Company’s attendance policies consistently to all employees. The manager denies the employee’s leave request, and the employee decides that spending time with his son before he goes to war is more important than any job. The employee advises the manager of his decision, and the manager terminates the employee.
The employee brings suit against the Company under the Illinois Family Military Leave Act, which provides up to 30 days of unpaid family military leave to employees whose spouse, son, or daughter has been called to military service lasting longer than 30 days with the State or United States pursuant to the orders of the Governor or the President of the United States. See 820 ILCS §151/1, et seq. The Company has no defense, and the Court orders the Company to reinstate the employee and grants the employee other equitable relief.
If you have any questions about this state law or have any other employment issues, do not hesitate to contact Bryan Cave’s Labor and Employment Client Service Group.