Predictable Scheduling Makes Its Way To Chicago
Chicago Mayor Lori Lightfoot is expected to sign into law the City Council’s recently passed Chicago Fair Workweek Ordinance (the “Ordinance”). The Ordinance, which includes predictable scheduling provisions, will dramatically affect workweek scheduling for many Chicago employers beginning on July 1, 2020.
We previously wrote about Emeryville, California’s Fair Workweek Ordinance. Emeryville became the third municipality to enact predictive scheduling legislation (Seattle and San Francisco being the others). In an effort to enact “fair and equitable employment scheduling practices”, the Chicago City Council now passed its own Ordinance, which requires certain Covered employers (as defined below) to provide Covered employees (as defined below) with at least two weeks’ advance notice of their work schedules and to compensate employees in the event of certain schedule changes.
Who Is Covered?
Covered employers are those who: (1) employ 100 or more employees globally (or 250 or more employees if a not-for-profit corporation); (2) have at least 50 Covered employees; and (3) are primarily engaged in a covered industry, which includes:
And, Covered employees include employees and temporary employees who have been on assignment to the employer for 420 hours, and who: (1) spend the majority of their time at work for the employer while physically present within the City of Chicago; (2) perform the majority of work in one of the above industries for that employer; and (3) earn less than or equal to $50,000 per year as a salaried employee or less than or equal to $26.00 per hour as a hourly employee.
The ordinance does not affect workers subject to a collective bargaining agreement already in place on July 1, 2020, and does not affect workers subject to a collective bargaining agreement entered into subsequent to that date if the requirements of the ordinance have been waived and the waiver is set forth explicitly in such agreement in clear and unambiguous terms.
What Does the Ordinance Require?
Prior to or on commencement of employment, employers must provide a good faith estimate in writing of the projected days and hours of work for the first 90 days of employment. The employee may request modification of the projected days and hours of work, and the employer is required to consider any request. However, it is in the sole discretion of the employer whether to accept or reject the request, provided that the employer notify the employee of the determination in writing and within three days of the employee’s request.
For existing employees, from July 1, 2020 to June 30, 2022, employers must provide written notice of work hours by posting the work schedule not later than 10 days before the first day of any new schedule. Beginning July 1, 2022, employers must post the work schedule no later than 14 days before the first day of any new work schedule. There are limited exceptions to these scheduling requirements, including employees who self-schedule or work in a venue that hosts ticketed events with a capacity of at least 5,000 people.
With limited exceptions, including but not limited to mutual agreement in writing between the employee and employer, if an employer makes changes to an employee’s work schedule after the 10-day (and 14-day) deadlines, the employee is entitled to compensation beyond that of the employee’s regular rate of pay, including predictability pay as defined by the ordinance. An employee also has the right to decline any previously unscheduled hours an employer adds to the employee’s schedule, and for which the employee has been provided advance notice of less than 10 days (or 14 days beginning July 1, 2022). Employees also have the right to request a modified work schedule.
Further, an employee also has the right to decline work schedule hours that are less than 10 hours after the end of the previous day’s shift. When an employee works a shift that begins less than 10 hours after the end of the previous day’s shift, the employer shall pay the employee at a rate of 1.25 times the employee’s regular rate of pay for that shift.
An employer who violates the ordinance is subject to a fine of not less than $300 nor more than $500 for each offense. A separate and distinct offense occurs: (1) for each employee whose rights are affected by the violation and (2) each day a violation occurs. Additionally, upon meeting certain administrative conditions, an employee may initiate a civil action asserting violation of the ordinance within two years of the alleged conduct. In the event an employee prevails on his or her claim, the employee is entitled to an award of compensation for any damages sustained, including the payment of predictability pay and litigation costs, including reasonable attorneys’ fees.
While the ordinance does not take effect until July 1, 2020, covered employers in the affected industries should begin preparing to implement the ordinance’s mandates. This legislation will significantly impact the operations of many Chicago employers, and it will be critical for those employers to get ahead of the ordinance’s effective date.