In the past years, employers have been faced with increasing minimum wages and employee benefits, such as required paid sick leave. Employers - especially those in the retail and restaurant industry - are now faced with a new hurdle:
In particular, employee advocates are now turning their focus to “fair workweek” laws – a trend that has already been implemented in various parts of the U.S., including the cities of New York; San Francisco and San Jose, Calif.; and Seattle, as well as the state of Oregon. Such laws have been introduced in numerous other locations, including Illinois and Chicago.
To date, fair workweek regulations have not been passed within the state of Illinois or Cook County. That does not mean Illinois employers can ignore the trend. Rather, it is imperative for Illinois employers to understand what “fair workweek” laws require, how it may impact their organizations, and prepare for the inevitable implementation of predictive scheduling.
Jessica Causgrove Fisher Phillips
What Are “Fair Workweek” or “Predictive Scheduling” Laws?
Essentially, fair workweek laws (also commonly referred to as “predictive scheduling,” or “secure scheduling” laws) require employers to provide employees their work schedules ahead of time. Predictive scheduling laws force employers to end “on-call” scheduling and penalize employers for last minute schedule changes. Indeed, the primary purpose of such laws is to afford employees more stability, predictability, input and flexibility with their work schedules.
Further, employee advocates believe that predictive scheduling allows employees to better plan for things such as family care, school and other jobs, and to provide employees with rest time between closing and opening shifts. The laws so far primarily affect the restaurant and hospitality industries. However, as more states and local jurisdictions adopt their own fair workweek laws, we may see the new laws expanding to other industries.
What Is Happening In Illinois?
In 2018, Illinois state representative Emanuel “Chris” Welch introduced HB5046, also known as the “Fair Scheduling Act.” Although the bill ultimately died on January 8, 2019 in the state House, the proposed Act provides Illinois employers with a glimpse into what Illinois lawmakers may ultimately pass into law, perhaps yet this year.
HB5046 would have had a widespread impact throughout the state. It would affect all Illinois employers, regardless of size, and apply to all employees, with the exception of those paid on a salary basis and whose pay is greater than the 40th percentile of weekly earnings of full-time non-hourly workers in the Midwest. Further, the Act would have held employers to the following requirements and penalties: (i) provide employees with their work schedule at least 72 hours before the start of the first shift of the work schedule; and (ii) pay employees one-half times their regular rate of pay for any scheduled hours the employer either canceled or reduced within 72 hours of the scheduled shift.
A revised Fair Scheduling Act from the State is not the only proposed fair workweek legislature in Illinois gaining traction. In Chicago, Alderman Ameya Pawar and Alderman John Arena first introduced Chicago’s own predictive scheduling regulations called the “Chicago Fair Workweek Ordinance” in 2017. The ordinance was met with both strong support and resistance from local organizations and associations on both sides of the issue, and ultimately never made it into law. Nonetheless, there has been discussion that a revised Chicago Fair Workweek Ordinance could return in the near future and this time, receive the support it needs to become law.
Should the Chicago Fair Workweek Ordinance be passed, the ordinance would require employers to provide employees with at least two weeks’ advance notice of their work schedules, and pay employees one-half time the employee’s regular rate of pay if the employer cancels the employee’s scheduled shift with less than 24 hours’ notice. The proposed ordinance, among other things, further made an effort to provide current part-time employees with additional hours, by requiring employers to offer current employees additional work hours before hiring new workers.
Illinois employers should not ignore fair workweek laws. If anything, the history of the state’s and city’s efforts of implementing predictive scheduling, foreshadows what is to come. It is important employers keep abreast of the pending legislation and prepare for predictive scheduling.
Jessica Huynh Causgrove is a partner in the Chicago office of the firm of Fisher Phillips. She handles matters across all facets of labor and employment law including employment discrimination claims before federal and state courts throughout the country.