The city of Chicago began implementing its Fair Workweek Ordinance on July 1, 2020. Under the Ordinance, employers must give their Chicago employees at least ten days’ notice of their work schedule (with the minimum notice to increase to fourteen days starting July 1, 2022). The notice must include both shift schedules and on-call schedules. Employers are also required to advise their employees in writing of any changes to their shift within twenty-four hours of the change being made. This article provides a brief overview of the Ordinance and some of the potential pitfalls for employers.
Who is covered by the Ordinance?
The Ordinance only applies to “covered employees”. A “Covered employee” is an employee who makes less than $26.00 per hour or, if the employee is salaried, less than $50,000.00 annually. The employee must also work in one of the following industries: building services (e.g. janitorial services, security, and maintenance), healthcare, hotels, manufacturing, restaurants, retail, and warehouse services (e.g. storage, loading, distribution, and delivery). Employers must also have a certain number of employees for the Ordinance to apply. For restaurants, employees generally are covered by the Ordinance if the restaurant has thirty or more locations and at least two hundred fifty employees globally. For non-restaurant businesses, employers must have one hundred or more employees globally (two hundred fifty or more for non-profits), fifty of whom must be “covered employees”.
What happens if I have to change an employee’s schedule with less than ten days’ notice?
Providing employees with less than ten days’ notice of schedule changes can be quite costly for employers. For example, if an employer needs to change an employee’s schedule with less than ten days’ notice, the employer will have to pay the employee one hour of “predictability pay” at the employer’s regular wage rate (regardless of whether the employee actually lost hours as a result of the change). Further, if the schedule change is made with less than twenty-four hours’ notice, the employer must pay the employee fifty percent of the employee’s base pay for each hour lost. Employees also have the right to decline any additional hours assigned with less than ten days’ notice.
In addition, employers who do not comply with the Ordinance may be fined between $300.00 and $500.00 per day for each covered employee. An employee who believes that his or her employer has violated the Ordinance must first go through an administrative investigation with the city. Thereafter, however, the Ordinance creates a private right of action for the employee, which means that the employee could sue his or her employer. An employee may also be able to recover attorneys’ fees and costs.
Are there any exemptions to the Ordinance?
There are some situations where the Ordinance does not apply. For example, the Ordinance provides exemptions for ticketed events and for employees with collective bargaining contracts if the Ordinance’s provisions are explicitly waived in the contract. In addition, an employer may change an employee’s schedule without penalty if there are threats to the employer, the employees, or the employer’s property, or where there is a failure of certain public utilities to provide service to the employer’s premises. Likewise, the Ordinance exempts employers from paying predictability pay when there is a work schedule change because of war, civil unrest, strikes, threats to public safety, or a pandemic. There are a number of other exemptions, some of which are industry specific, so it is important for employers to review the Ordinance carefully.
What else does the Ordinance provide?
There are several other provisions in the Ordinance that employers must be aware of. For example, the Ordinance gives employees the “right to rest”, which allows an employee to decline hours that start less than ten hours after his or her last shift. Further, even if an employee agrees to work these hours, the employer must pay the employee time and a quarter for the shift. Employers must also give their new hires a written pre-employment “good faith estimate” detailing the employee’s anticipated workdays and hours. A prospective employee may submit a request for modification to which the employer must respond within three days.
An employer must first offer additional hours to part-time employees before hiring anyone else. If the part-time employees decline, then the employer must offer the additional hours to temporary and seasonal workers before hiring anyone else.
Employers must keep records that pertain to employee schedules and hours worked for at least three years. These records must be detailed and it is important for employers to review the ordinance carefully to determine what specific records must be kept. Employers must also post notices advising employees of their rights under the Ordinance and place such notices in an employee’s first paycheck.
How does COVID-19 impact the Ordinance’s implementation?
As noted above, the Ordinance exempts employers if scheduling changes are due to a pandemic and the pandemic causes an employer to materially alter its operating hours, operating plan, or goods or services provided by the employer, thereby resulting in the schedule change. However, this pandemic provision does not apply to an employee’s “right to rest”.
In addition, although the Ordinance went into effect on July 1, 2020, the city has delayed implementation of the provision granting employees a private right of action against their employers until January 1, 2021. The remainder of the Ordinance, however, is in effect and being enforced, so it is important for employers to know what is in the Ordinance and to comply with its provisions.
This article is intended to provide only a brief overview of some of the Ordinance’s provisions. It is important for employers to review the Ordinance carefully and to understand how it impacts their business. For more information, please contact Albee Law PC at (312) 279-0115 or by email at info@albeelaw.com.
