Chicago passes Employee Predictive Scheduling Law and it’s the most expansive law of its kind



July 26, 2019

Employment Law Alert

Author(s): Brian V. Alcala, Brittany A. Bogaerts

Under the new employee predictive scheduling law, Chicago employers will have to provide employees with advanced notice of their work schedules, or risk monetary penalties per violation and possible lawsuits.

Effective January 1, 2020, larger Chicago employers across various industries will have to comply with a new employee predictive scheduling law. Under the new law, titled the “Chicago Fair Workweek Ordinance,” employers will have to provide employees with advanced notice of their work schedules, or risk monetary penalties of $300–$500 per violation and possible lawsuits. In passing this new law, Chicago jumped on a growing trend of predictive scheduling laws, following in the footsteps of major cities like New York and San Francisco. This one, however, is unique in that it is the most expansive one to date with Chicago’s mayor proclaiming it to be “the most expansive predictive scheduling law in the country,” reaching into industries such as “[h]ealth care, manufacturing, and the warehouse industry [which] have never been included in … [such a law] … until now.”

In a little less than one year from now—on July 1, 2020—larger Chicago employers will have to publish employee work schedules at least 10 days in advance for certain employees. On July 1, 2022, the advanced notice requirement increases to 14 days.

Here are the basics:

  • Which localities are covered? Employers in Chicago are potentially covered by the law.
  • Which industries are covered? The following seven Chicago industries are covered by the law: 1) Health Care/Hospitals; 2) Retail—i.e., sale of tangible products to end users for personal, household, or family purposes; 3) Restaurants; 4) Manufacturing; 5) Warehouse Services; 6) Building Services—i.e., janitorial, maintenance, and security services; and 7) Hotels.
  • Which larger employers are covered? Employers in the covered industries (above) are subject to the law if they have more than 100 employees globally, 50 of whom are Chicago based and either make less than $26/hour or earn less than $50,000/year. For not-for-profits, employers must have 250 employees globally.
  • Which employees are covered? For those larger employers in the covered industries described above, the following Chicago-based “covered employees” must receive advanced notice of their work schedules: 1) hourly workers earning less than $26/hour and/or 2) salaried workers earning less than $50,000/year.
  • Which Chicago restaurants are covered? Chicago restaurants are treated a little differently. Restaurants are covered if they have 250 employees and 30 locations globally. Specifically exempted from this definition are restaurants with one to up to three locations in Chicago that are owned by one employer and operating under a sole franchise.
  • Can an employee decline work if not scheduled in advance? Yes, an employee has a right to decline any previously unscheduled hours that do not conform to this law.
  • What if an employee agrees to work the hours not scheduled in advance? Then the employee is entitled to “premium pay” of one hour of extra pay for each shift that the employer adds hours or work.
  • What if an employer changes the date/time of a work shift with no loss of hours? Then the employee is entitled to “premium pay” of one hour of extra pay for each work shift changed.
  • What if an employer cancels or subtracts hours from a shift? If the cancellation or subtraction of hours from a shift is made with at least 24-hours’ notice, then the employee is entitled to “premium pay” of one hour of extra pay for each shift affected. If the cancellation or subtraction of hours from a shift is made with less than 24-hours’ notice, then the employee is entitled to 50% of the employee’s regular rate of pay for any scheduled hours not worked.
  • Are there any exceptions to the premium/additional pay? Yes, a work schedule change that is mutually agreed to by the employee and employer and is evidenced in writing does not require premium/additional pay. Also, a work schedule change that is the result of a mutually agreed upon shift trade between covered employees does not require premium/additional pay.
  • Can employers use “temporary workers” to get around the law? The law places restrictions on employers’ attempts to do so. Specifically, employers are required to offer additional shifts of work to its own employees before offering the work to temporary or seasonal workers.
  • Is there a “right to rest” component to the law? Yes, a covered employee has the right to decline a work schedule that starts less than 10 hours after the end of the previous day’s shift. If the covered employee works a shift that begins less than 10 hours after the end of the previous days’ shift, the employer must pay the employee 1.25 times the regular rate of pay.
  • How does this law apply to newly hired employees? Prior to the start of work, employers must provide a good faith estimate in writing of the projected days and hours of work for the first 90 days.
  • Are there any special exceptions for health care employers or manufacturers? Yes, certain patient care needs and any unexpected substantial increases in patient demand beyond the employers’ control may exempt health care employers. Also, for manufacturers, events outside their control—e.g., raw materials shortages—may exempt them.
  • Does this law require notice to employees in their paychecks? Yes, in addition to posting a notice, employers must provide employees with notice of their rights with their first paycheck.

The above summary provides the nuts and bolts of the new law. Additional details and nuances exist. The good news is that employers have almost a year to prepare. For assistance, contact your Nixon Peabody labor attorney who can help you prepare and implement the new law with efficiency.

The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.

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