Chicago publishes rules and guidance on scheduling ordinance

Background:

In 2019, Chicago enacted an ordinance requiring certain employers to notify employees of their schedules in advance and pay employees when they provide insufficient notice of schedule changes.

To be covered by the ordinance:

• The employer must employ 100 or more employees globally (250 or more employees for not-for-profit corporations);
• At least 50 of those employees must be considered covered employees (see below); and
• The employer must be primarily engaged in one of the following covered industries:
• Building Services;
• Healthcare;
• Hotels;
• Manufacturing;
• Restaurants;
• Retail; or
• Warehouse Services.

Under the ordinance, a covered employee is one who:

• Performs work in the capacity of an employee, as distinguished from a contractor, or is a worker for temporary agency who has been on assignment to the employer for 420 hours within an 18-month period;
• Spends most of their work time within the City of Chicago;
• Performs most of their work in a covered industry for that employer; and
• Earns $50,000 or less per year as a salaried employee, or $26.00 or less per hour as an hourly employee (these amounts will be adjusted for inflation).

The ordinance contains various provisions, including:

• Posting Work Schedule: Employers must post covered employees' work schedules no later than 10 days before the first day of any new schedule. This deadline increases to 14 days beginning July 1, 2022. The schedule must include the shifts and on-call status of all current covered employees at that worksite. Additionally, it must be posted conspicuously within the workplace and readily accessible and visible to all covered employees or via the usual methods of communication. Additionally, upon written request, the employer must transmit the schedule electronically.
• Right to decline unscheduled hours: Covered employees can decline to work unscheduled hours offered to them within 10 days of the beginning of the work schedule in which those additional hours are proposed.
• Predictability pay: Covered employees receive one hour of additional pay when hours are added to a shift, or a shift's time or date is changed with no change to the number of hours, within 10 days of the beginning of the work schedule during which that shift takes place. Predictability pay also applies when hours are subtracted from a shift within 10 days of the start of the work schedule in which that shift takes place, but with more than 24 hours' notice from the beginning of that shift.
• Pay for cancelled hours and shifts: Covered employees receive no less than 50% of their pay for any hours that are cancelled with less than 24 hours' notice from the beginning of the shift during which those cancelled hours were to take place.
• Right to rest: Covered employees can decline shifts that begin less than 10 hours following the end of the previous day's shift. When covered employees agree to work such a shift, they are then paid at 1.25 time their base rate of pay.
• Initial estimate of work schedule: Covered employees must receive an initial good faith estimate of their work schedule, including the days of the week they can be expected to work, and the start and end times of their shifts for those days.
• Employer notice: Employers must post a notice advising covered employees of their rights under the ordinance. Employers must also provide a notice with each covered employee's first paycheck on or after July 1, 2020.

Final Rules, FAQs, and Notice:

The city recently published final rules, frequently asked questions, and the required notices under the ordinance.

Among other things, the final rules clarify that:

• An employer may change a previously scheduled regular shift as posted by 15 minutes or less without being obligated to provide predictability pay.
• Employers may add a covered employee to a work schedule with less than the required notice when they are returning from a leave of absence.
• Employers must post the required notice through the employers' usual methods of communication for such notices, whether by paper posting or by electronic dissemination through the employers' internal communication channels. When posting a paper notice, the notice must be printed on and scaled to fill a sheet of paper that measures 11 inches by 17 inches.
• The notice that employers must provide with the first paycheck advising the covered employee of their rights must be printed on and scaled to fit a sheet of paper that measures 8.5 inches by 11 inches. However, where covered employees are enrolled in direct deposit, employers may provide the notice through the employers' usual methods of electronic communication. This notice must also be provided with employee paychecks annually on or following July 1.
• All notices must be posted in English and any language(s) spoken by employees at the facility who are not proficient in English and in which city has provided non-English language notices. As of June 9, 2020, the city has published the notices in English and Spanish.

The frequently asked questions address various issues, including COVID-19. In the answer to one question, the city states that if COVID-19 causes a material change to an employer's operations that creates the need for a schedule change, the employer is exempt from certain provisions of the ordinance (right to decline, predictability pay, and pay for cancelled hours and shifts) for the work schedule during which the change takes place, as well as the following work schedule.

Compliance Recommendations:

Covered employers should read the ordinance, final rules, and frequently asked questions in full and ensure compliance by July 1, 2020. Anyone involved in scheduling employees should be trained as well. Please contact your dedicated service professional with any questions.