CHICAGO'S FAIR WORKWEEK ORDINANCE NOW IN EFFECT

As we reported in our previous alert announcing Chicago’s new predictive scheduling measure, Chicago’s Fair Workweek Ordinance went into effect on July 1, 2020.

ORDINANCE PROVISIONS

Among other things, the Ordinance provides covered employees must be given:

• 10 days’ advance notice of their work schedule (14 days after July 1, 2022)
• Right to decline previously unscheduled hours
• One hour of “Predictability Pay” for certain changes to an employee’s Work Schedule (hours added, changes to shift time or date with no loss of hours), occurring within 10 days of the beginning of the Work Schedule
• Payment of no less than 50% of their pay for any shift hours cancelled with less than 24 hours’ notice from the beginning of the shift
• Right to rest by declining work hours that begin less than 10 hours after the end of previous day’s shift

Under the Ordinance, “covered employers” are those primarily engaged in one of seven industries (Building Services, Healthcare, Hotels, Manufacturing, Restaurants, Retail, and Warehouse Services) with at least 100 employees globally, at least 50 of whom are covered by the Ordinance. Restaurants with 30 locations and at least 250 employees globally are also covered employers, unless the restaurant is a sole franchise with three or less Chicago locations.

The definition of “covered employees” includes both hourly and salaried employees who (1) spend the majority of their time working for their employer in Chicago, (2) perform the majority of their work in a covered industry for their employer (including temporary workers on assignment for 420 hours within an 18-month period), and (3) earn less than $26/hour or $50,000/year.

BUSINESS AFFAIRS AND CONSUMER PROTECTION RULES

On May 12, 2020, the Chicago Department of Business Affairs and Consumer Protection (“BACP”) published its final rules and FAQ interpreting the Ordinance. Notable highlights include:

• Advance Notice. Employers generally have to post their Work Schedule at least 10 days in advance (14 days beginning in July 1, 2022) and must post any amended Work Schedule within 24 hours. An employer may change a previously scheduled regular shift by 15 minutes or less without triggering the employer’s obligation to pay Predictability Pay (i.e., the “15-minute rule”).
• Consent to Schedule Changes. An employee may agree, in writing, to a schedule change, but must provide consent for each schedule change – a blanket general or ongoing consent is insufficient. Every written consent document must be “time and date stamped.”
• Right to Rest. Employees can decline shifts that begin less than 10 hours following the end of the previous day’s shift. If an employee agrees to the shift change, his/her consent must in writing, and s/he must be paid at 1.25 times their base rate of pay.
• Notice and postings. Every year, employers must provide a physical notice of the Ordinance to all employees with their first July paycheck (electronic notice if the employee receives direct deposit). Employers must also post notice in communal work areas. All notices must be provided in English and “any language spoken by employees that do not speak English proficiently,” provided that a notice in that language has been provided by BACP. Required notices can be found on the BACP website.
• Recordkeeping. Employers must maintain wage records showing employees’ amounts paid and schedule of hours worked per week, documents demonstrating compliance with the Ordinance’s Predictability Pay requirements, and other related records for three years.

COVID-19 EXCEPTION

Finally, the BACP also published a supplemental rule that confirmed that the current COVID-19 outbreak qualifies for the Ordinance’s exception for employers who make a work schedule change because of a “pandemic.”

Thus, an employer is exempt from certain provisions of the Ordinance (right to decline, predictability pay, and pay for cancelled hours and shifts) if COVID-19 causes a material change in “its operating hours, operating plan, or the goods or services provided by the employer, which results in the work schedule change.”

WE CAN HELP

Covered employers are encouraged to consult with legal counsel to review and update their current scheduling and pay practices.

Golan Christie Taglia is available to assist with any questions or concerns that you may have about the Chicago Fair Workweek Ordinance or best practices for compliance. Please feel free to contact Laura Balson (312-696-1351), Ashley Orler (312-696-2032), or any attorney from the GCT Employment Practice Team.