Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
The Chicago City Council currently has before it a proposed ordinance entitled the “Chicago Fair Workweek Ordinance,” which, if passed, would severely limit Chicago employers’ ability to change employees’ posted schedules, and would otherwise encumber employers in employee scheduling.
The Chicago Fair Workweek Ordinance was spearheaded by a group calling itself the “Chicago Fair Workweek Coalition,” whose members include Local 881 UFCW, Chicago Jobs with Justice, Raise the Floor, SEIU Local 1, SEIU HCII, Sargent Shriver Center on Poverty Law, and Women Employed.
The Ordinance was first proposed to the Chicago City Council in June 2017. On June 27, 2018, the Chicago Tribune reported that the aldermen had introduced a new version of the Ordinance. The Tribune reports that the 2017 version “got shunted to the council Rules Committee, where it foundered amid resistance from chambers of commerce.”1 The latest version, described below, exempts from the rules businesses with fewer than 50 employees, construction workers and railway workers.2 The new version, if enacted as drafted, would take effect January 1, 2019.
The Ordinance is designed to mirror recently enacted laws in New York, San Francisco and Seattle. The purported goal of the Ordinance is to provide predictability, flexible schedules, and financial stability to Chicago hourly workers. While designed to address unpredictable schedules in the restaurant and retail industries, it would apply broadly to most large employers operating in the City of Chicago.
Who is Covered?
In the proposed Ordinance, “Covered Employees” entitled to the benefits of the Ordinance are defined as those working at least two hours in any two-week period within the geographic boundaries of the City of Chicago.3
An “Employer” is defined as any individual, group, or entity that “employs or exercises control over the wages, hours or working conditions of one or more Employee” and that (i) maintains a business facility within the geographic boundaries of the City or (ii) is subject to one or more of the license requirements in Title 4 of the Code and (iii) employs fifty or more individuals in the aggregate within a dwelling unit, residence, or any other location.
Significantly, the Ordinance provides that the applicable requirements of the Ordinance “may be waived in a bona fide collective bargaining agreement, provided, that such waiver is explicitly set forth in such agreement in unambiguous terms. . .”
What Would the Ordinance Require?
If the requirements of the Ordinance are not waived in a bona fide collective bargaining agreement, the Ordinance would require an employer with covered employees to do the following:
- Post a notice of rights under the Ordinance in a visible area of the workplace and provide each new covered employee written notification of his or her rights upon hire;
- Prior to or on their first day on the job, provide covered employees with a good-faith estimate in writing of their work schedule including: the median number of weekly work hours, whether there will be any on-call shifts, and a subset of the days and times that the employee can expect to work and not be scheduled to work. The employer may, in its sole discretion, accept or reject the request, provided that the employer notify the employee of its determination in writing prior to commencement of employment;
- Provide covered employees with written notice of work hours no later than 14 days before the first day of the workweek by posting the schedule in a conspicuous place at the workplace, and, upon request of any covered employee, transmit the schedule via electronic means of the covered employees’ choosing (for instance, via email or text);
- Permit employees to decline previously unscheduled hours if they have not received advance notice of 14 days or more;
- If a covered employee’s schedule changed with less than 24 hours’ notice with no loss of hours, provide one additional hour of pay for each changed shift as “predictability pay;”
- If a covered employees’ hours were cancelled or reduced with less than 24 hours’ notice, pay one-half times the covered employee’s regular rate of pay for hours that are not worked as a result of the change;
- Provide covered employees a “right to rest.” Covered employees would be permitted to decline to work scheduled hours occurring during the 11 hours following the end of a shift. If covered employees did agree in writing to work such a shift, they would be paid at their applicable overtime rate for those hours worked less than 11 hours following the end of their previous shift;
- Offer existing employees more hours prior to hiring additional staff, including temporary workers or contractors;
- Keep scheduling records for up to five years, including documentation of the hours worked, changes to an initially posted schedule, pay rate, consent to work hours (where the Ordinance requires consent), and documentation of offers of hours of work to existing staff and responses to such offers; and
- Provide covered employees a copy of their records relating to this Ordinance upon reasonable request.
The proposed Ordinance also provides covered employees a right to request changes to their working arrangement, and to be free from retaliation for doing so. The covered employee’s request need not be written. For instance, covered employees would have the right to request changes to their scheduled shifts, part-time employment, and reductions or changes in work duties, among other things. Employers would be obligated to respond in writing to a covered employee who requests a modification.
Employers that fail to comply with the Ordinance’s requirements could be subject to fines of $500-$1,000. Covered employees would be entitled to file complaints within three years from the date of an alleged violation, and recover civil penalties, plus any predictability pay owed. In addition, the Ordinance contains an anti-retaliation provision, which prohibits employers from retaliating against an employee who asserts his or her rights under the Ordinance.
Will it Pass?
As noted above, this proposed Ordinance was first presented to the Council in 2017 and subsequently revised and re-presented in June 2018. It is difficult to gauge the current support for the modified Ordinance. However, organized labor and other workers’ rights groups have been successful in obtaining the passage of a number of employee-friendly measures in recent years – including the minimum wage ordinance and paid sick leave.
In anticipation of the Ordinance’s passage, unionized employers should proactively consider negotiating a waiver of rights under the Ordinance into their collective bargaining agreements at the next opportunity. Non-union employees should review whether they are potentially excluded from coverage under any of the exemptions. If not, they should evaluate their current practices to determine if they could make any proactive changes that would make the passage of this Ordinance less of a disruption to their business (for instance, starting to post schedules earlier). Alternatively, employers are advised to stay informed about the proposed Ordinance’s provisions and status so they are ready to implement if/when the Ordinance is passed.
1 John Byrne, Former Gov. Quinn argues for term-limiting Emanuel as mayor looks on at City Council meeting, Chi. Trib., June 27, 2018.
2 The amended proposed Ordinance is available here.
3 An employee who is paid on a salary basis and whose rate of pay per week is greater than the current 40th percentile of weekly earnings of full-time non-hourly workers in the Midwest Census Region, exclusive of board, lodging, or other facilities, as determined by the U.S. Department of Labor, but never less than $50,000 per year, or $962 per week, shall not be considered a Covered Employee for the purposes of this Chapter.