United States: Chicago City Council Passes Sweeping Scheduling Ordinance

Last Updated: July 31 2019
Article by Thomas E. Deer

On July 24, 2019, the Chicago City Council passed the most sweeping predictive scheduling ordinance in the country to date. Effective July 1, 2020 (January 1, 2021, for "safety-net" hospitals), the Chicago Fair Workweek Ordinance will require 10 days' advance notice of work schedules for certain workers in the building services, healthcare, hotel, manufacturing, restaurant, retail, and warehouse services industries. The ordinance had strong union support, and the business community withdrew its objections to the ordinance after prolonged negotiations. The ordinance has two primary purposes: to require advance notice of scheduling for certain workers and to require that additional hours of work be offered first to existing employees. The ordinance also offers a host of employee protections that the City of Chicago hopes will become a model for other cities.

The ordinance will apply to employers with 100 or more global employees (250 employees for nonprofits), of whom 50 or more are covered employees under the statute and primarily engaged in a covered industry. A "covered employee" is one whose salary is less than $50,000 per year (or less than $26 per hour if paid an hourly wage) and spends the majority of his or her time at work within the city of Chicago. Temporary workers who have been on assignment with an employer for 420 hours in an 18-month period, performing a majority of their work within the city of Chicago in a covered industry, are also covered employees.

Importantly, nothing in the ordinance affects the validity of or changes the terms of a collective bargaining agreement in force at the effective date. After the effective date, the requirements of the ordinance can be waived by a clear and unambiguous waiver in a bona fide collective bargaining agreement.

Under the ordinance, an employer is required to provide, prior to or on commencement of employment, a new hire with a good-faith, written estimate of the employee's projected days and hours of work for the first 90 days of employment. A new hire can request that the employer modify the projected work schedule, which the employer can accept or reject at its sole discretion, provided the employer notifies the employee in writing within three days.

For employees covered by the ordinance, an employer is required to post the work schedule "no later than" 10 days in advance (14 days in advance, starting on July 1, 2022) of the first day of any new schedule or to give notice by its regular means of communication, or both. The work schedule must include the shifts and on-call status of all current covered employees at the worksite. Upon written request of a covered employee, the employer must transmit the schedule by electronic means. An employee has the right to decline any previously unscheduled hours that an employer adds within the 10-day notice provision. Should an employer make schedule changes within the 10-day period before the new schedule is effective, the covered employee will receive one hour of predictability pay for each shift in which an employer (a) adds hours of work; (b) changes the date or time of a work shift with no loss of hours; or (c) with more than 24 hours' notice, cancels or subtracts hours from a regular or on-call shift. If the employer cancels hours of work with less than 24 hours' notice, the employer must pay 50 percent of the pay for the hours the employee does not work.

There are a number of exceptions to the statute, including hours subtracted for disciplinary reasons, a change that is mutually agreed upon and confirmed in writing, a mutually agreed trading of hours by covered employees, and an employee's request for a shift change or time off for sick time or a leave.

Beyond predictive scheduling, the ordinance will require that when an employer needs to fill additional shifts of work, the employer shall first offer the additional shifts to existing covered employees, assuming they are qualified to do the work. If not accepted, the shifts shall next be offered to temporary or seasonal employees who have worked for the employer for two or more weeks. Importantly, employers are not required to schedule employees to work hours if those hours would be required to be paid at a premium rate.

A covered employee also has the right to decline scheduled hours that are set to begin less than 10 hours after the conclusion of the previous day's shift. If an employee works such a shift, he or she must be paid at a rate of 1.25 times the employee's regular rate for that shift. Additionally, an employee has the right to request a modified work schedule, including additional shifts or hours, changes in days of work, changes in shift start and end times, permission to exchange shifts with other employees, or part-year employment.

Administratively, covered employers will have a notice and posting obligation, and will be required to maintain records for at least three years.

Finally, the ordinance provides for a private right of action for employees who feel aggrieved under the ordinance. Employees will be required to submit claims to the Department of Business Affairs and Consumer Protection. After the Department investigates, the employee will be permitted to file a civil action. Damages that may be awarded include predictability pay wrongfully withheld, as well as reasonable attorney's fees.

Chicago employers should consider reviewing the statute to determine if they are covered employers, and if so, if they have any covered employees. Because of the administrative and record-keeping obligations in the ordinance, employers may want to assess their procedures to make sure they comply with the ordinance. Additionally, the ordinance provides a good opportunity for companies to review their pay practices, including confirming they are appropriately calculating their employees' regular rate of pay.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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