Evanston, Illinois Establishes a Fair Workweek Ordinance
Posted: May 26, 2023
On May 23, 2023, Evanston, Illinois joined the state of Oregon, Chicago, and cities in California, New York, Pennsylvania, Texas, and Washington in the group of jurisdictions that have enacted fair workweek legislation.
The Evanston Fair Workweek Ordinance will apply to employers of more than 15 employees in the hospitality (hotels and lodgings), food service and restaurant, retail, warehouse services, building services, and manufacturing industries. Any employees who qualify for minimum wage and perform at least two hours of work in a workweek in Evanston will be subject to the ordinance. The ordinance is scheduled to go into effect on September 1, 2023, and contains a host of scheduling and recordkeeping requirements.
Employers will be required to provide workers with a written good-faith estimate of their work schedule prior to or on commencement of employment. The good-faith estimate must identify the projected days and hours of work for the first 90 days of employment, including the average number of weekly work hours, whether the employee can expect to work on-call shifts, and a subset of days and times or shifts the employee can expect to work and not work.
Right to Request Changes to Work Schedule
The ordinance also provides covered employees with the right to request certain work hours, work times, or locations of work. However, covered employers may accept or decline the request provided they notify the employee, in writing, within three days of the request.
Advance Notice of Work Schedule
Employers will also be required to provide employees with advance notice of their work schedules at least 14 calendar days before the first day of the schedule. Notice shall be provided by posting the schedule within the unit or department or workgroup either in a conspicuous place at the workplace that is readily accessible and visible to employees or using the usual methods of communication, or both. Upon request of an employee, the schedule shall be transmitted electronically.
Any employer-initiated schedule changes, including changes to date or time, that occur after notice is given must be made in writing and employees have the right to decline any changes that would add work hours or additional shifts that were not included in the original schedule. If a worker accepts a schedule change made less than 14 calendar days before the work period, the acceptance must be in writing.
Access to Hours for Current Employees
The ordinance prohibits covered employers from hiring new employees (including contractors and temporary employees) unless they have first offered additional work hours and shifts to current part-time employees. Covered employers only need to offer these open shifts or hours to employees that the employer reasonably determines are qualified to perform the available work. For example, if a covered employer needs a new cashier, the employer would not need to offer those hours to employees who have not been trained in cash handling or in the use of the employer's point-of-sale system. Employers must offer part-time employees only up to the number of hours required to give the part-time employee 35 hours of work in a calendar week.
For additional work for an expected duration of more than two weeks, the part-time employee will have 72 hours to accept the additional hours, after which time the employer may hire new employees to work the additional hours. If the expected duration of additional work is two weeks or less, part-time employees will have 24 hours to accept the additional hours.
Premium Pay for Work Schedule Changes
The ordinance also requires covered employers to issue premium pay whenever they change an employee's schedule. When the schedule changes with less than 14 days' notice but more than 24 hours' notice, the employer owes the employee one additional hour of pay at the employee's regular rate of pay. Changes made with less than 24 hours' notice will result in premium pay of either: (i) four hours or the number of hours in the employee's scheduled shift, whichever is less, when hours are canceled or reduced; (ii) one hour of predictability pay for all other changes.
Premium pay is not required if:
- An employee initiates the requested schedule change, which is confirmed in writing;
- A mutually agreed-to schedule change between employees, or a coverage agreement between employees;
- An employee's hours are reduced due to the employee's violation of law or of the employer's policies;
- The employer's operations are compromised pursuant to law or force majeure (i.e., threats, public utility failure, act of nature, war, etc.); or
- When an employee self-schedules.
Notably, simply agreeing or consenting to work additional hours or shifts does not exempt a covered employer from having to pay an employee schedule-change premium pay.
Rest Time Between Shifts
Employers are required to give employees at least 11 hours of rest between shifts unless the employee gives written consent to be scheduled for a shift that begins less than 11 hours after the conclusion of the previous shift. When an employee consents to work a shift that is less than 11 hours after their previous shift, they are entitled to time and a half for any hours worked less than 11 hours following the end of a previous shift.
Compliance with predictable scheduling laws creates a host of structural and cultural challenges for covered employees. For example, managers need to be trained that they are obligated to finalize, publish, and distribute schedules with far more notice than they may be used to. Similarly, managers need to be reminded that predictable scheduling laws prohibit even minor schedule deviations. Managers who may be used to texting with employees and asking employees to cover for shifts are no longer permitted to do so without first getting an employee's written consent. Likewise, managers have to ensure that employees leave right at the scheduled end time of their shift, even if they are busy. Allowing employees to stay after the scheduled end time, without an employee's consent, would constitute a violation and trigger schedule-change premium pay obligations. Perhaps most difficult, managers need to understand that they simply cannot hire new employees to meet anticipated demand. Instead, they need to comply with the access to hours process or risk incurring heavy fines and penalties.
Posted In: Illinois; Wage and Hour Laws
Want to know more? Read the full article by Eli Z. Freedberg, Kathryn Siegel, and Andy Klaben-Finegold at Littler Mendelson