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.
Update: On May 20, 2020, the Chicago City Council passed the anti-retaliation ordinance, which prohibits adverse actions against employees unable to work for reasons due to COVID-19. The anti-retaliation ordinance takes effect immediately. The city council also passed the amendment to the Fair Workweek Ordinance, delaying the provision allowing employees to initiate a private lawsuit against their employers until January 1, 2021.
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In the past two weeks, the city of Chicago has undertaken several actions related to the COVID-19 pandemic’s continued effects on the city. Specifically, the city is considering a proposed ordinance that would prohibit retaliation against employees unable to work for certain reasons related to COVID-19; plans to vote on whether to delay private civil actions for violations of the Fair Workweek Ordinance; issued final rules related to the Fair Workweek Ordinance generally, and the pandemic’s impact on certain provisions of the Ordinance specifically; and promulgated new rules affecting third-party food delivery services.
Proposed Anti-Retaliation Ordinance
On April 22, 2020, Mayor Lori Lightfoot and several city aldermen submitted a proposed anti-retaliation ordinance to protect employees from adverse employment action taken due to COVID-19. If passed, the ordinance would prohibit taking adverse action against a “covered employee” for obeying an order issued by the mayor, the governor of Illinois, the Chicago Department of Public Health, or, for reasons (2) through (4) below, a treating healthcare provider, that requires the covered employee to:
- Stay at home to minimize the transmission of COVID-19;
- Remain at home while experiencing COVID-19 symptoms or sick with COVID-19;
- Obey a quarantine order issued to the covered employee;
- Obey an isolation order issued to the covered employee; and
- Obey an order issued by the commissioner of health regarding the duties of hospitals and other congregate facilities.
The ordinance would also prohibit retaliation against a covered employee caring for an individual who cannot work due to reasons (1) through (3) above. An employer could claim an affirmative defense to enforcement if it relied upon a reasonable interpretation of the COVID-19-related order at issue, and cured the violation within 30 days.
The Chicago Department of Business Affairs and Consumer Protection (BACP) would be tasked with enforcing the anti-retaliation ordinance. The BACP would be authorized to pursue legal action against violating employers and issue fines of up to $1,000.00 per offense per day. The proposed ordinance grants employees a private right of action, entitling them to possible: (i) reinstatement; (ii) treble damages; (iii) any other monetary damages caused directly by the retaliatory act; and (iv) reasonable attorneys’ fees and costs should they prevail.
Unless the city council intervenes, the ordinance would automatically expire when the city commissioner of public health makes a written determination that the public health threat posed by COVID-19 has diminished to the point that the ordinance can be safely repealed.
The Chicago Committee on Workforce Development approved the proposed ordinance with minor amendment on May 11; the full city council will consider it on May 20.
Amendment to the Fair Workweek Ordinance
As previously discussed, the city council will meet next week to vote on whether to delay employee civil actions against employers for violations of the Fair Workweek Ordinance until January 1, 2021. It is still unclear whether the proposed delay would prohibit solely the filing of a lawsuit until January 1, 2021, or would also prevent a private cause of action from accruing until January 1, 2021, versus the Ordinance’s July 1, 2020 effective date.
Either way, the remainder of the Ordinance, including the authorization for the city of Chicago to investigate and enforce compliance with the Fair Workweek Ordinance, is still expected to go into effect on July 1, 2020.
On May 12, the BACP issued final rules to the Fair Workweek Ordinance which will also go into effect on July 1, 2020. The final rules clarify certain provisions of the Ordinance as well as provide additional obligations for employers in the “Covered” industries.1 Specifically, the rules:
- Define “franchise” to clarify the Ordinance’s definition of “restaurants”;2
- Require employers to provide the locations where new employees will work and the estimated work schedule. Healthcare employers that operate out of multiple buildings in a facility or campus can identify the work location by the name of the facility or campus;
- Require employers to maintain the confidentiality of employees who have identified themselves as victims of domestic violence or sexual violence and have requested that their work schedules not be shared with other employees;
- For employees receiving non-physical paystubs, the rules allow employers to give notice of an employee’s rights under the Ordinance through the employer’s usual means of electronic communications;
- Clarify that an employee’s written consent, time and date-stamped, must be obtained for each work schedule change;
- Allow employers to maintain electronic records demonstrating compliance with the Fair Workweek Ordinance.
- Make clear that the pandemic exception for predictability pay does not apply to the Ordinance’s “Right to Rest” provision in which employers must pay covered employees at 1.25 times their regular rate of pay for any work shift that begins less than 10 hours after the end of the previous day’s shift.
The final rules also gives the commissioner of the BACP authority to issue subpoenas to employers directing them to provide information demonstrating their compliance with the Fair Workweek Ordinance. Employers have the right to file objections to the subpoenas in which case they will be afforded a hearing by the commissioner.
Also on May 12, the BACP issued a supplemental COVID-related rule to the Fair Workweek Ordinance. Under the Ordinance, there is an exception to the obligation to pay predictability pay if the work schedule change is caused by certain circumstances including a “pandemic.”
The BACP’s COVID rule confirms that the ongoing COVID-19 emergency is a qualifying pandemic. However, the BACP explained that it would find a work schedule change to be “because” of COVID-19 “only when the pandemic causes the Employer to materially change its operating hours, operating plan, or the goods or services provided by the Employer, which results in the Work Schedule change.” Further, the exception will apply only to the work schedule change caused by the event (i.e., the employer’s material change because of the pandemic) and the “work schedule immediately following.”
The COVID-related rule makes clear that employers cannot automatically rely on the pandemic exception to avoid predictability pay obligations for COVID-related work schedule changes, even as they struggle to adapt to new business realities in light of the COVID-19 pandemic.
Disclosures of Commission Fees by Third-Party Food Delivery Services
The use of food delivery has increased significantly due to widespread stay-at-home orders. On May 12, 2020, the city announced new rules requiring third-party food delivery companies to disclose to customers the “commissions” they charge to restaurants and other establishments for utilizing their delivery services. As the rules are promulgated under the city’s existing authority, the rules do not require city council approval and are effective beginning May 22, 2020.
The new rules applies to all “third-party food delivery services” that offer or arrange via internet or telephone for the sale and same-day delivery or same-day pick-up of food and beverages from no fewer than 20 separately owned and operated “food dispensing establishments.”3
Before the transaction occurs, the third-party food delivery service must disclose to potential customers an itemized cost breakdown of the transaction, including the price of the food, applicable taxes, delivery charges and tips, as well as commissions or fees the food-dispensing establishment pays for utilizing the delivery service. If physical receipts are provided after the transaction, the delivery service must provide the same information in the receipt to the customer.
The intent of the rules is to provide information to customers utilizing these third-party food delivery services as to how much of the total transaction price is going to the food-dispensing establishments as compared to the delivery service. Violations of the rules could lead to daily fines ranging from $500 to $10,000.
1 As defined under the Fair Workweek Ordinance, covered industries include building services, healthcare, hotels, manufacturing, restaurants, retail, and warehouse services,
2 Under the Fair Workweek Ordinance, “Restaurants” do not include “businesses limited to three or more locations in the City that are owned by one Employer and operating under a sole franchise.”
3 Under Chicago’s Municipal Code, food-dispensing establishments are defined as any fixed location where food or drink is routinely prepared and served or provided for the public for consumption on or off the premises with or without charge.