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It’s Predictable: Chicago Passes Strict Work Scheduling Law

On July 24, 2019, Chicago passed the Chicago Fair Workweek Ordinance, which will dramatically change how many Chicago employers schedule work.

Covered Employers and Employees

The Ordinance applies to employers in the following industries: building services; healthcare; hotels; manufacturing; restaurants; retail; and warehouse services. It covers employers in those industries who employ globally, 100 or more employees (or in the case of not-for-profit corporations, 250 or more employees), 50 of whom are Covered Employees.

A “Covered Employee” is an individual who (a) performs work for an employer in the capacity of (i) an employee, as distinguished from a contractor, determined pursuant to Internal Revenue Service guidelines, or (ii) a worker for a day and temporary labor service agency, as defined in the Day and Temporary Labor Services Act, 820 ILCS 175/5, who has been on assignment to the employer for 420 hours within an 18-month period; (b) spends the majority of their time at work for that employer while physically present within the City of Chicago; (c) performs the majority of their work in a Covered Industry for that employer; and (d) earns less than or equal to $50,000 per year as a salaried employee, or less than or equal to $26.00 per hour as an hourly employee, from that employer.

Initial Estimate of Work Schedule

The law requires that, prior to or on commencement of employment, an Employer must provide every Covered Employee with a good faith estimate in writing of the Covered Employee’s projected days and hours of work for the first ninety days of employment, including: the average number of weekly work hours the Covered Employee can expect to work each week; whether the Covered Employee can expect to work any on-call shifts; and a subset of days and a subset of times or shifts that the Covered Employee can expect to work, or days of the week and times or shifts on which the Covered Employee will not be scheduled to work. The Ordinance provides that the good faith estimate “is not a contractual offer binding the Employer, but an estimate made without a good faith basis is a violation of this section.”

Also prior to or on commencement of employment, a Covered Employee may request that the Employer modify the projected days and hours of work. The Employer must consider any such request, and in its sole discretion may accept or reject the request, provided that the Employer shall notify the Covered Employee of Employer’s determination in writing within three days of the request.

Advance Notice of Work Schedule

An Employer must provide its Covered Employees with written notice of work hours by posting the Work Schedule no later than 10 days before the first day of any new schedule from July 1, 2020, to June 30, 2022, and shall post the Work Schedule no later than 14 days before the first day of any new Work Schedule beginning July 1, 2022, by posting the Work Schedule either in a conspicuous place at the workplace that is readily accessible and visible to all Covered Employees or using the usual methods of communication, or both.

The written Work Schedule must include the shifts and on-call status of all current Covered Employees at that worksite. Additionally, upon written request of a Covered Employee, an Employer must transmit the Work Schedule by electronic means.

An Employer may change a Covered Employee’s Work Schedule after it is posted and/or transmitted, up to the deadline articulated above without penalty. After that deadline, such changes shall be subject to the notice and compensation requirements set forth in this Chapter.

A Covered Employee who is a victim of Domestic Violence or Sexual Violence or who has a family or household member who is a victim may request that the Covered Employee’s Work Schedule not be posted or transmitted to other employees.

Schedule Changes

A Covered Employee has the right to decline any previously unscheduled hours that the Employer adds to the Covered Employee’s schedule, and for which the Covered Employee has been provided advance notice of less than 10 days before the first day of any new schedule from July 1, 2020, to June 30, 2022, and less than 14 days before the first day of any new schedule beginning July 1, 2022.

If an Employer alters a Covered Employee’s Work Schedule after the applicable deadline, in addition to the regular rate of pay, the Covered Employee shall receive: (i) one hour of Predictability Pay (at the employee’s regular hourly rate) for each shift in which the Employer: adds hours of work; changes the date or time of a work shift with no loss of hours; with more than 24 hours’ notice, cancels or subtracts hours from a regular or on-call shift; and (ii) no less than 50% of the Covered Employee’s regular rate of pay for any scheduled hours the Covered Employee does not work because the Employer, with less than 24 hours’ notice subtracts hours from a regular or on-call shift or cancels a regular or on-call shift, including while the Covered Employee is working on a shift. The Employer must amend the posted Work Schedule and transmit it to the Covered Employee in writing within 24 hours of a schedule change.

The foregoing requirements do not apply in the following circumstances:

  1. A Work Schedule change because:
    • Of threats to Employers, Covered Employees, or property, or when civil authorities recommend that work not begin or continue;
    • Public utilities fail to supply electricity, water, or gas, or the sewer system fails to serve the location of work;
    • Of acts of nature (including, but not limited to, flood, earthquake, tornado, or blizzard); and
    • War, civil unrest, strikes, threats to public safety, or pandemics.
  2. A Work Schedule change that is the result of a mutually agreed upon shift trade or coverage arrangement between Covered Employees, subject to any existing Employer policy regarding required conditions for Covered Employees to exchange shifts.
  3. A Work Schedule change that is mutually agreed to by the Covered Employee and Employer and is confirmed in writing.
  4. A Covered Employee requests a shift change, that is confirmed in writing, including but not limited to use of sick leave, vacation leave, or other policies offered by the Employer.
  5. An Employer subtracts hours from a Work Schedule for disciplinary reasons for just cause, provided the Employer documents the incident leading to the Covered Employee’s discipline in writing.

Offer of Additional Work Hours to Existing Employees

Subject to certain limitations, when an Employer needs to fill additional shifts of work, the Employer shall first offer additional shifts of work to existing Covered Employees if the Covered Employees are qualified to do the additional work, as determined by the Employer.

If offered shifts are not accepted by Covered Employees, the shifts shall be offered to temporary or seasonal workers who have worked on behalf of the Employer for two or more weeks.

An Employer must distribute additional shifts in compliance with the above, provided that:

  1. The Employer’s system for distribution of hours must not discriminate on the basis of race, color, creed, religion, ancestry, national origin, sex, sexual orientation, gender identity or expression, disability, age, or marital or familial status; and
  2. Whenever practicable, the Employer shall first offer those hours to part-time Covered Employees.

Right to Rest

A Covered Employee has the right to decline Work Schedule hours that are less than 10 hours after the end of the previous day’s shift. When a Covered Employee works a shift that begins less than 10 hours after the end of the previous day’s shift, the Employer must pay the Covered Employee at a rate of 1.25 times the Covered Employee’s regular rate of pay for that shift.

Right to Request a Flexible Working Arrangement.

A Covered Employee has the right to request a modified Work Schedule, including, but not limited to, additional shifts or hours; changes in days of work; changes in shift start and end times; permission to exchange shifts with other employees; limitations on availability; part-time employment; job sharing arrangements; reduction or change in work duties; or part-year employment.

Notice and Posting

Every Employer shall post in a conspicuous place in each facility where any Covered Employee works that is located within the geographic boundaries of the City a notice advising the Covered Employees of their rights under the Ordinance.

Every Employer must provide with the first paycheck subject to the Ordinance a notice advising the Covered Employee of their rights under the Ordinance.

Impact on Collective Bargaining Agreements

Nothing in the Ordinance shall be deemed to interfere with, impede, or in any way diminish the right of employees to bargain collectively with their employers through representatives of their own choosing in order to ‘establish wages or other conditions of work in excess of the applicable minimum standards of the provisions of this Chapter.

Also, nothing in the Ordinance shall be deemed to affect the validity or change the terms of bona fide collective bargaining agreements in force on the effective date of the Ordinance. After the effective date, the requirements of the Ordinance may be waived in a bona fide collective bargaining agreement, but only if the waiver is set forth explicitly in such agreement in clear and unambiguous terms.

Retaliation Prohibited

It is unlawful for any Employer to discriminate in any manner or take any adverse action against any Covered Employee in retaliation for exercising any right under the Ordinance, including, but not limited to, disclosing, reporting, or testifying about any violation of the Ordinance or rules promulgated thereunder. A violation of this section will subject the Employer to a $1,000.00 fine.

Violation — Penalty.

Any Employer who violates the Ordinance or any rule promulgated thereunder shall be subject to a fine of not less than $300.00 nor more than $500.00 for each offense. Each Covered Employee whose rights are affected will constitute a separate and distinct offense to which a separate fine shall apply. Each day that a violation occurs shall constitute a separate and distinct offense to which a separate fine shall apply. Any agreement between the Employee and Employer that would violate the Ordinance is no defense to an enforcement action.

Private Cause of Action

An employee may initiate a civil action asserting that they were subjected to a violation of the Ordinance after exhausting some administrative complaint procedures. A Covered Employee who prevails in a civil action will be entitled to an award of compensation for any damages sustained, including the payment of Predictability Pay unlawfully withheld, as a result of the violation, including litigation costs, expert witness fees, and reasonable attorney’s fees.

Looking Ahead

Chicago joins a handful of cities and the State of Oregon with predictive scheduling laws.  At least employers will have close to one year to implement a compliant scheduling system.  Employers can expect that more and more cities and maybe even some other states will follow the Windy City’s move.

Contacts

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