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Chicago Fair Workweek Ordinance Will Go into Effect With Delay in Private Cause of Action

Coronavirus Labor & Employment

City Council approved an amendment to the Chicago Fair Workweek Ordinance to temporarily protect employers from lawsuits.  Although the substantive requirements of the Ordinance will still go into effect on July 1, 2020 as scheduled and may still be enforced by the City, individual employees will not be allowed to file lawsuits for violations of the ordinance occurring before January 1, 2021.  For safety-net hospitals, the ordinance will still go into effect on January 1, 2021 as originally scheduled.

Separately, the City’s Department of Business Affairs and Consumer Protection (“BACP”) issued a final rule clarifying certain requirements under the Ordinance to assist businesses in moving forward with updating their scheduling practices. As we previously reported, the Ordinance applies only to certain “Covered Employers,” that employ the requisite number of employees and those primarily engaged in one of the following industries: business services, healthcare, hotel, manufacturing, restaurant, retail, and warehouse services. Key provisions of the final rule are summarized below. 

Clarification Regarding Covered Employers

“Covered Employer” includes those who employ 100 or more employees globally or, in the case of non-profits, 250 or more employees, 50 of whom must be “Covered Employees” employed by a single unitary business group. The final rule defines a “unitary business group” as a “group of persons related through common ownership or control, whose business activities are in the same general line (such as within a Covered Industry) and whose members are functionally integrated through the exercise of centralized management.”  The regulations further state that common ownership for corporations is the control or ownership of more than 50% of the outstanding voting stock of the persons carrying on the business.

Advanced Notification of Schedules:

Under the Ordinance, a Covered Employer is required to make a “good faith estimate” when providing employees with an initial estimate of their work schedule.  The final rule defines this term as a reasonable prediction based on an employer’s forecast.  This estimate must include the address that the employee will work and specify what proportion of time and on which days the employee will work. Covered Employers are required post schedules reflecting each calendar week, and if changes occur thereafter, to repost updated schedules.

If an employee identifies himself or herself as a victim of domestic or sexual violence, employers are required to maintain the confidentiality of those employees and not share their work schedules with others.

Schedule Changes:

The final rule creates a “15-minute rule,” which states that a Covered Employer may change a previously scheduled regular shift by 15 minutes or less without being obligated to pay Predictability Pay. If the changes exceed 15 minutes, then the employer will owe Predictability Pay.

An employer may, but is not required to, add a Covered Employee to a Work Schedule with less than the 10-day or 14-day notice when the Covered Employee is returning to work from a leave of absence that was agreed to by the parties.

When obtaining written consent for a schedule change, Covered Employers must obtain written consent for each schedule change and each document must be “time and date stamped.” Employers cannot ask employees to sign a blanket consent or agreement to future or unspecified schedule changes.

Subpoena Authority:

If the Commissioner of the BACP reasonably determines that a Covered Employer is violating the Ordinance, the Commissioner may issue a subpoena directing the employer to provide information necessary to demonstrate compliance within 30 days. The employer can file a legal objection, in which case the Commissioner will provide a hearing within 10 business days. 

Record Retention and Notices: 

The Rule requires employers to maintain the following records for at least 3 years, and to make such records available to the BACP for inspection upon request:

  1. Name of each Covered Employee
  2. Mailing address, telephone number, and email address of each Covered Employee
  3. Occupation and job title of each Covered Employee
  4. Hire date of each Covered Employee
  5. Paystubs, wage records, and/or documents that show amounts paid and scheduled of hours worked per week
  6. Documents, records, or information to demonstrate compliance with Predictability Pay requirements
  7. Records necessary to demonstrate the location of shifts where the Covered Employee works
  8. Written consent of Covered Employees that work a shift that begins less than 10 hours after the end of the previous day’s shift, or consent to schedule changes, agreements, modifications or changes to Work Schedules
  9. The number of employees employed by the Employer globally
  10. All information to demonstrate compliance with the proper posting of Work Schedules, including but not limited to electronic communications sent to Covered Employees
  11. Documents and dates necessary to demonstrate compliance with: a. Initial Estimate of Work Schedule; b. Advance Notice of Work Schedule; c. Schedule Changes; d. Offer of Additional Work Hours to Existing Employees; e. Right to Rest; and f. Right to Request a Flexible Working Arrangement
  12. Policy handbook, employee manual, or other such documentation specifying Employer policies and rules

In addition to the specific categories of documents listed, employers must maintain “any and all documents to demonstrate compliance with the Ordinance.” The rule also confirms that employers can create, maintain, and store records electronically and use electronic means to notify employees of their rights under the Ordinance. 

The COVID-19 Exception:

A related rule was also recently passed providing that the requirements of the Fair Workweek Ordinance do not apply when a work schedule change is because of a pandemic.  The BACP will consider a change “because of” a pandemic only when the pandemic causes the Employer to materially change its operating hours, operating plan, or the goods or services provided by the employer, resulting in a work schedule change. This exception applies only to the work schedule during “the event” that causes the change and the work schedule immediately following the change. This exception does not apply to predictability pay for the “right to rest” provision, which requires that employers pay covered employees 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.

Actions for Employers: 

While the COVID-19 crisis has occupied everyone’s attention, Covered Employers that have not already done so must still prepare to comply with the Fair Workweek Ordinance by July 1, 2020, even though the City has removed the threat of private lawsuits over the Ordinance until January 1, 2021. Covered Employers should work closely with legal counsel to update and review their existing scheduling policies and procedures.  Any Covered Employers with union workforces should also prepare to propose language into any successor agreements speaking to the requirements of this Ordinance. We will be updating clients with any further developments from City Council.