Following a growing nationwide trend, the Chicago City Council is considering new legislation that would require employers to pay employees for any scheduling changes made with less than two weeks' notice. If passed, the Chicago Fair Workweek Ordinance will go into effect on July 1, 2018, and the city will join the likes of San Francisco, Emeryville, Seattle, and New York, as well as the state of Oregon, which have passed similar laws targeted at giving employees more predictable work schedules.
Predictability Pay Required for Schedule Changes With Insufficient Notice
Most notably, the Chicago Ordinance would require employers to provide "covered employees" (those working at least two hours in any two-week period within the geographic boundaries of the city) with at least two weeks' advance notice of their schedules. If an employer changes a covered employee's schedule in any way with less than two weeks' notice, the employer must pay the covered employee one hour of "predictability pay," equal to the covered employee's regular rate of pay. If an employer cancels or reduces a covered employee's hours with less than 24 hours' notice, the employer must pay the covered employee four hours of predictability pay or the number of hours in the employee's scheduled shift, whichever is less.
Additionally, the Ordinance would require employers to provide new employees with a "good faith" estimate of the employee's work schedule, including minimum hours, prior to or at the commencement of their employment. However, before hiring new employees, the Ordinance mandates that employers first offer additional hours of work to existing employees who are qualified to do the work.
Employee Rights to Rest and Request Changes to Work Arrangements
The Ordinance also provides employees with a "right to rest." That is, employees have the right to decline a shift that is scheduled to begin within 11 hours after a previous shift ends. Employees can agree in writing to work such a shift, but they must be compensated at the overtime rate (one-and-a-half times the employee's regular rate of pay) for those hours.
Another right the Ordinance creates for employees is the right to request changes to their working arrangement, and to be free from retaliation for doing so. For instance, 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 are obligated to respond in writing to an employee who requests a modification, but the employee's request need not be written.
Notice and Recordkeeping Requirements
The Ordinance also imposes various notice and record retention requirements on employers. Specifically, employers must post a notice of employees' rights under the Ordinance prominently in the workplace and provide written notification of rights to current covered employees, as well as new covered employees at the time of hire. Employers must also maintain certain scheduling records for each covered employee for at least 5 years, including the hours worked, pay rate, changes to an initially posted schedule, consent to work hours where the Ordinance requires consent, and documentation of the time and method the employer used to offer additional hours to existing employees.
Consequences for Violations
To top it all off, the Ordinance's enforcement provisions are robust. Employers who fail to comply with the Ordinance's requirements may be subject to fines between $500-$1,000. Employees may also file complaints with the city or in court within 3 years from the date of an alleged violation, and may recover $500 in civil penalties, plus any predictability pay owed to them. In addition, the Ordinance contains an anti-retaliation provision, which prohibits employers from retaliating against an employee who files a complaint with the city or in court, participates in a city proceeding, or otherwise asserts his or her rights under the Ordinance.
In light of the growing number of states and municipalities adopting predictive scheduling laws, as well as the stringent requirements these laws impose on businesses, it is important for employers to stay abreast of new developments. Employers with operations in Chicago or other states and municipalities that are considering legislation like Chicago's Fair Workweek Ordinance should be prepared to evaluate and modify their scheduling practices in the event predictive scheduling becomes law.
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