United States: Chicago Enacts Fair Workweek Ordinance

On July 24, 2019, the Chicago City Council passed and Mayor Lightfoot approved a predictive scheduling ordinance known as the Fair Workweek Ordinance (the "Ordinance"). It becomes effective on July 1, 2020. The following summarizes key features of the Ordinance.

Covered Employers and Employees. Covered Employers are employers in the building services, healthcare, hotel, manufacturing, restaurant, retail and warehouse services industries that globally employ more than 100 employees—or in the case of not-for-profit corporations, more than 250 employees—at least 50 of whom are Covered Employees. Covered Employees are those who work primarily in Chicago for Covered Employers and earn less than $26.00 an hour or $50,000 annually. Covered Employees include workers employed by temporary labor service agencies assigned to Covered Employers if the worker has been assigned to a Covered Employer for 420+ hours in the preceding 18 months.

Advance Scheduling Requirements.

At The Time of Hire. Within 90 days of hire, a Covered Employer must provide Covered Employees with a written "good faith estimate" of expected weekly hours, on-call shifts and day and time of shifts. Covered Employees are entitled to request a modification of the estimate in writing, and employers must respond in writing and within three days of any modification request.

Throughout Employment. In addition to posting a notice of the rights granted by the Ordinance and maintaining certain scheduling records for a period of 3 years, the Ordinance imposes the following requirements:

Posting Requirements. Schedules must be posted or disseminated by regular means of communication. Schedules must include the shifts for all Covered Employees, unless an employee requests to have his or her name removed from the public scheduling because he or she or his or her family or household member is a victim of domestic violence. Employers also must provide the schedule by electronic means if an employee requests that in writing.

Advance Notice Requirements. Covered Employers must provide employees no fewer than 10 days advance notice of their schedules, or risk incurring Predictability Pay premiums. This number will increase to 14 days as of July 1, 2022. Predictability Pay is calculated on an hourly basis, at the employee's regular rate of pay. Required Predictability Pay for schedule changes after the 10-day minimum are as follows:

Advance Notice Employer Schedule Modification Amount Due to Employee
< 10 days Adds hours of work 1 hour Predictability Pay/shift
< 10 days Changes date or time of shift (no loss of total hours) 1 hour Predictability Pay/shift
24+ hours' notice Cancels or reduces hours from a regular or on call shift 1 hour Predictability Pay/shift
< 24 hours' notice Cancels or reduces hours from a regular or on call shift 50% of regular rate of pay for hours not worked

Predictability Pay is not required to compensate for last-minute schedule changes only in certain limited circumstances, which include: acts of nature; mutually agreed upon shift changes between employees pursuant to an existing employer policy; changes mutually agreed upon in writing between the employer and the employee; or where the change is a result of the employee's own written request to use sick, vacation or other leave offered by the employer.

Other Changes.

Right to Rest. The Ordinance imposes a new "right to rest" that exceeds the requirements of the current Illinois One Day Rest in Seven Right Law. Beginning on July 1, 2020, if a Covered Employee works a shift that begins fewer than 10 hours after the end of the previous day's shift, the employer must compensate the employee at a rate of 1.25 times the employee's regular rate of pay. The Ordinance does not contain any exception to this rule, even for employees who volunteer for shifts.

Right to Decline. Covered Employees have the right to decline any previously unscheduled hours added more than 10 days after a schedule has been posted.

Right to Request Flexible Work Schedule. Covered Employees will have a right to request modified work schedules, including shift changes.

Retaliation Prohibited. The Ordinance prohibits retaliation against employees who exercise any right thereunder. This includes retaliation in the form of negative evaluations, punitive schedule changes, decreases in desirability of work assignments and denial of promotions.

Penalties. Employers that violate the Ordinance are subject to $300 fines per offense. Violation of the statute's non-retaliation provisions will result in a $1,000 fine. Each violation will constitute a distinct offense, and any private agreement between an employer and an employee will not result in a release of the fine. Further, employees have a private cause of action to collect wages due to them under the Ordinance, so long as they first have pursued a complaint with the City of Chicago.

Implications. Given the substantial changes facing employers with variable-hour workforces, employers should take early steps to ensure that scheduling processes, policies and software systems are positioned to comply next year.

Chicago Enacts Fair Workweek Ordinance

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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