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Volume XII, Number 267

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More Breaks for Illinois Employees (Or Else More Penalties for Employers)

Employers operating in Illinois should be aware that as of January 2023, they will be required to provide additional rest and meal breaks to most non-exempt employees.  On May 13, 2022, Illinois Governor J.B. Pritzker signed into effect an amendment to the state’s One Day Rest In Seven Act (ODRISA).  Not only does the amendment mandate additional break time for employees under certain circumstances, but it also imposes notice requirements on employers and increases penalties and available monetary damages for violations of ODRISA.  

Additional Required Breaks

Substantively, the ODRISA amendment mandates that employers provide additional rest and meal break times to employees.

Rest Breaks – ODRISA currently requires employers to provide covered employees with one day of rest during every “calendar week” (i.e., from Sunday through Saturday).  Under the amendment, employers must provide employees with one day of rest for every consecutive seven-day period, without regard to when these days fall during the typical “workweek.”  Practically, the amendment will make it illegal to schedule an employee for more than six consecutive days. 

Meal Breaks – ODRISA currently requires employers to provide employees with an unpaid 20-minute meal break for every 7 ½ hours worked, to be taken within the first 5 working hours of the 7 ½ hour period. Employers will also be required to provide employees with an additional 20-minute meal break for every 4 ½ hours worked beyond an initial 7 ½ hours. The practical effect of this change is that employees will be entitled to take a second meal break after 12 hours of work, versus after 15 hours (which is the current requirement).

Required Notice

In addition to providing the break times discussed above, the amendment also mandates that employers provide employees with specific notice of their entitlements and rights under ODRISA.  The Illinois Department of Labor will publish this notice prior to the amendment’s effective date, and copies of the same must be posted “in one or more conspicuous places” in the workplace.  Importantly, this notice requirement also applies to remote workers, so copies of the provided notice must also be e-mailed or made available to employees via other electronic means. 

Increased Penalties and Damages for Violations

Finally, and perhaps most notably for employers, the amendment raises violations of ODRISA from “petty” to “civil” offenses.  Along with this change come increased penalties – up to $250 per offense for smaller employers (those with fewer than 25 employees) and up to $500 per offense for larger employers (those with 25 or more employees).  These penalties will be payable to the Department of Labor.

In addition to these penalties, the amendment also requires employers to pay monetary damages directly to employees– again up to $250 per offense for smaller employers and up to $500 per offense for larger employees.

For purposes of penalties and damages, “offenses” are to be calculated on an individualized basis as to each affected employee.  The amendment is clear, however, that each consecutive seven-day period in which an employee is not provided a required day of rest and each day on which an employee is denied a required meal break shall constitute separate offenses.

What Can Employers Do Now?

The ODRISA amendment does not become effective until January of 2023.  Employers, however, can take several steps now to begin preparing for compliance.  First, employers should review their current rest and meal break policies and make revisions, if necessary.  Similarly, employers can prepare a plan for posting the required notice and distributing the notice to remote workers. 

Next, Illinois employers can begin determining whether their standard scheduling practices will require adjustments.  For example, by evaluating their current scheduling practices to determine whether employees are systemically working more than six days in row, employers can begin considering how best to provide affected employees with one-day-of-rest-in-seven without disrupting other business practices or bottom lines.  Additionally, by looking to employees’ typical shift lengths to determine if extra meal breaks will be required, employers can begin considering whether it would better suit business needs to adjust or shorten employees’ shift times accordingly.

Finally, employers should begin educating managers and supervisors about the upcoming changes to ensure that those responsible for ensuring compliance on the ground are aware of the additional break times to which many employees will soon become entitled.

© 2022 Foley & Lardner LLPNational Law Review, Volume XII, Number 157
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About this Author

Associate

Mary Caroline (“M.C.”) Cravatta is an associate and litigation attorney with Foley & Lardner LLP. M.C. is based in the Orlando office where she is a member of the Labor & Employment Practice Group.

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