HB3285 102ND GENERAL ASSEMBLY

LRB102 15122 JLS 20477 b

102ND GENERAL ASSEMBLY
State of Illinois
2021 and 2022
HB3285

Introduced 2/19/2021, by Rep. Aaron M. Ortiz

SYNOPSIS AS INTRODUCED:

New Act

Creates the Fair Workweek Act. Requires certain employers to provide employees with a good faith estimate of the employee's work schedule. Sets forth the contents of the estimate, including the median number of hours the employee can expect and the manner in which standby lists will be utilized. Requires written work schedules to be provided to employees 14 days in advance. Specifies minimum periods of rest between shifts. Provides for administration by the Department of Labor. Establishes remedies.

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning employment.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Short title. This Act may be cited as the Fair Workweek Act.

Section 5. Definitions. In this Act:

"Chain" means an establishment that is part of an affiliation of 2 or more establishments within the United States, each of which is owned by the same person or entity and operates under identical or substantially similar trade names or service marks.

"Department" means the Department of Labor.

"Employee" means a person employed or permitted to work or perform a service for remuneration who is employed in a retail establishment, a hospitality establishment, or a food service establishment and is engaged in providing services relating to:

(1) retail trade, as that term is used in the 2017 North American Industry Classification System under code 44-45;

(2) hotels and motels, as those terms are used in the 2017 North American Industry Classification System under code 721110, or casino hotels, as that term is used in the 2017 North American Industry Classification System under code 721120; or

(3) food services, as that term is used in the 2017 North American Industry Classification System under code 722.

"Employee" does not include:

(1) a salaried employee;

(2) a worker supplied to an employer by a worker leasing company, as defined in Section 206.1 of the Unemployment Insurance Act; or

(3) an employee of a business that provides services to or on behalf of an employer.

"Employer" means an employer, or a successor to an employer, described in Section 10.

"Food service establishment" means the fixed point of sale location for establishments defined in the 2017 North American Industry Classification System under code 722 as food services and drinking places.

"Hospitality establishment" has the meaning provided in the 2017 North American Industry Classification System under code 721110 for hotels and motels and code 721120 for casino hotels.

"On-call shift" means any time that an employer requires an employee to be available to work or to contact the employer or wait to be contacted by the employer for the purpose of determining whether the employee must report to work. During the shift, on-call status applies regardless of whether the employee is located on or off the employer's premises.

"Regular rate of pay" means the regular hourly rate or hourly equivalent that an employer must pay an employee for each hour the employee works during a given work shift, including any shift differential pay. "Regular rate of pay" does not include:

(1) tips;

(2) bonuses or other incentive payments;

(3) overtime, holiday pay or other premium rate; or

(4) any additional compensation an employer is required to pay an employee under Section 40.

"Retail establishment" means the fixed point of sale location for an establishment defined in the 2017 North American Industry Classification System under codes 441110 to 453998 as a retail trade establishment.

"Shift differential pay" means a pay differential meant to compensate an employee for work performed under differing conditions, such as for working at night. "Shift differential pay" does not include any additional compensation an employer is required to pay an employee under Section 40.

"Successor" means a business or enterprise that is substantially the same entity as the predecessor employer according to criteria adopted by the Department by rule and consistent with federal law.

"Time of hire" means the period after an offer of employment and acceptance of the offer of employment and on or before the commencement of employment.

"Work schedule" means the hours, days, and times, including regular work shifts and on-call shifts, when an employee is required by an employer to perform duties of employment for which the employee will receive compensation.

"Work shift" means the specific and consecutive hours the employer requires the employee to work.

"Workweek" means a fixed period of time established by an employer that reflects a regularly recurring period of 168 hours or 7 consecutive 24-hour periods. A workweek may begin on any day of the week and any hour of the day and need not coincide with a calendar week. The beginning of a workweek may be changed if the change is intended to be permanent.

"Writing" or "written" means a printed or printable communication in physical or electronic format including a communication that is transmitted through electronic mail, text message or a computer system or is otherwise sent and stored electronically.

"Year" means any fixed, consecutive 12-month period.

Section 10. Covered employees.

(a) This Act applies to an employee who is employed by an employer, as defined in Section 205 of the Unemployment Insurance Act, that is also one or more of the following:

(1) A retail establishment that employs 500 or more employees worldwide, including but not limited to a chain or an integrated enterprise.

(2) A hospitality establishment that employs 500 or more employees worldwide, including but not limited to a chain or an integrated enterprise.

(3) A food service establishment that employs 500 or more employees worldwide, including but not limited to a chain or an integrated enterprise.

(b) To determine the number of employees employed by an employer, the calculation shall be based upon the average number of employees employed on each working day during each of 20 or more workweeks in the current calendar year or immediately preceding calendar year.

(c) Separate entities that form an integrated enterprise are considered a single employer under this Act. Separate entities shall be considered an integrated enterprise and a single employer under this Act when a separate entity controls the operation of another entity. The factors to consider in determining whether separate entities form an integrated enterprise include, but are not limited to:

(1) the degree of interrelation between the operations of multiple entities;

(2) the degree to which the entities share common management;

(3) the degree to which the entities have centralized control of labor relations; and

(4) the degree of common ownership or financial control over the entities.

(d) The Department shall adopt rules in accordance with the provisions of subsection (c) regarding how to determine when separate entities form an integrated enterprise for the purposes of this Act.

Section 15. Good faith estimate of work schedule.

(a) An employer shall provide a new employee with a written good faith estimate of the employee's work schedule at the time of hire. The good faith estimate:

(1) shall state the median number of hours the employee can expect to work in an average one-month period;

(2) shall explain the voluntary standby list described in Section 20 and provide the written notice required in Section 20;

(3) shall indicate whether an employee who is not on the voluntary standby list can expect to work on-call shifts and, if so, set forth an objective standard for when an employee not listed on the voluntary standby list may be expected to be available to work on-call shifts; and

(4) may be based on a prior year schedule if it is a good faith estimate of seasonal or episodic work.

(b) The employer shall include the good faith estimate in the language the employer typically uses to communicate with the employee.

Section 20. Voluntary standby list.

(a) An employer may maintain a standby list of employees whom the employer will request to work additional hours to address unanticipated customer needs or unexpected employee absences if the listed employees have requested or agreed in writing to be included on the standby list and the employer notifies each employee in writing:

(1) that the list is voluntary and how an employee may request to be removed from the list;

(2) how the employer will notify a standby list employee of additional hours available and how an employee may accept the additional hours;

(3) that the employee is not required to accept the additional hours offered; and

(4) that an employee on the standby list is not eligible for additional compensation under Section 40 for the changes to the employee's written work schedule resulting from the employee's acceptance of additional hours offered to the employee as a result of being on the standby list.

(b) An employer shall provide an employee on the standby list with notice of additional hours available by in-person conversation, telephone call, electronic mail, text message, or other accessible electronic or written format.

(c) An employee who receives notice of additional hours available under this Section may decline to accept the additional hours offered.

(d) An employee who consents to work additional hours in response to an employer's request under this Section is not eligible for any additional compensation under Section 40 for the resulting change to the employee's written work schedule.

(e) An employee may request to be removed from the standby list at any time.

(f) An employer may not retaliate against an employee who:

(1) does not request or agree to be added to the standby list;

(2) requests to be removed from the standby list; or

(3) declines an employer's request that the employee work additional hours as a result of the employee being on the standby list.

(g) In addition to any other penalty provided by law, the Department may assess a civil penalty not to exceed $2,000 against an employer that it finds has coerced an employee into requesting or agreeing to be added to the standby list in violation of this Section. Each violation is a separate and distinct offense. In the case of a continuing violation, each day's continuance is a separate and distinct violation.

(h) The standby list is not a list of employees scheduled for on-call shifts and the employer is not required to include a list of employees on the standby list in the written work schedule described in Section 25.

Section 25. Advance notice of work schedule.

(a) An employer shall provide an employee with a work schedule in writing at least 14 calendar days before the first day of the work schedule.

(b) The employer shall post the written work schedule in a conspicuous and accessible location, in English and in the language the employer typically uses to communicate with the employees.

(c) The employer shall provide a written work schedule that runs through the last date of the posted work schedule in effect at the time of delivery to:

(1) a new employee on or before the employee's first day of work; or

(2) an existing employee on the employee's first day of work after a leave of absence.

(d) The written work schedule shall include all work shifts and on-call shifts for the work period.

(e) If the employer requests changes to the written work schedule after the advance notice required in this Section:

(1) the employer shall provide the employee with timely notice of the change by in-person conversation, telephone call, electronic mail, text message or other accessible electronic or written format; and

(2) the employee may decline any work shifts not included in the employee's written work schedule.

(f) At any time after the advance notice of written work schedule required in this Section, an employee may request in writing that the employer add the employee to one or more work shifts or on-call work shifts. Any changes to the employee's written work schedule resulting from such employee-requested work schedule changes are not subject to the advance notice requirements of this Section.

Section 30. Right to rest between work shifts.

(a) Unless the employee requests or consents to work such hours, an employer may not schedule or require an employee to work during the following rest periods:

(1) the first 10 hours following the end of the previous calendar day's work shift or on-call shift; or

(2) the first 10 hours following the end of a work shift or on-call shift that spanned 2 calendar days.

(b) Except as provided in subsection (c), an employer shall compensate an employee for each hour or portion of an hour that the employee works during a rest period described in subsection (a) at one and one-half times the employee's regular rate of pay.

(c) Subsection (b) does not apply to any hour or portion of an hour an employee works during the rest period described in subsection (a) during which the employee is engaged in providing roadside assistance services. As used in this subsection, "roadside assistance" means offsite repair assistance rendered to a motorist with a disabled vehicle.

Section 35. Employee right to input into work schedule.

(a) At the time of hire and during employment, an employee may identify any limitations or changes in the employee's work schedule availability. The employee may also request not to be scheduled for work shifts during certain times or at certain locations.

(b)(1) An employer may require the employee to provide reasonable verification of the need for a request made under subsection (a).

(2) The employer shall pay any reasonable costs for providing verification that is medical verification required under this subsection, including lost wages, that are not paid under a health benefit plan in which the employee is enrolled.

(c) An employer may not retaliate against an employee for making a request under subsection (a).

(d) An employer is under no obligation to grant an employee's request under subsection (a).

Section 40. Compensation for work schedule changes.

(a) As used in this Section:

"Group communication" means communication to all eligible employees, either written or oral.

"Ticketed event" means a sporting, entertainment, civic, charitable, or other event that requires a ticket for admission. The ticket may be electronic, physical, or a name on a list held by the event organizer.

(b) An employer shall provide the following compensation to an employee for each employer-requested change that occurs to the employee's written work schedule without the advance notice required in Section 25:

(1) One hour of pay at the employee's regular rate of pay, in addition to wages earned, when the employer:

(A) adds more than 30 minutes of work to the employee's work shift;

(B) changes the date or start or end time of the employee's work shift with no loss of hours; or

(C) schedules the employee for an additional work shift or on-call shift.

(2) One-half times the employee's regular rate of pay per hour for each scheduled hour that the employee does not work when the employer:

(A) subtracts hours from the employee's work shift before or after the employee reports for duty;

(B) changes the date or start or end time of the employee's work shift, resulting in a loss of work shift hours;

(C) cancels the employee's work shift; or

(D) does not ask the employee to perform work when the employee is scheduled for an on-call shift.

(c) The requirements for additional compensation in this Section do not apply when:

(1) an employer changes the start or end time of an employee's work shift by 30 minutes or less;

(2) an employee mutually agrees with another employee to employee-initiated work shift swaps or coverage. The employer may require that work shift swaps or coverage under this paragraph be preapproved by the employer. The employer may assist employees in finding such arrangements, but any employer assistance must be limited to helping an employee identify other employees who may be available to provide work shift swaps or coverage and may not include the employer arranging the work shift swap or coverage;

(3) an employee requests changes to the employee's written work schedule, including adding or subtracting hours, and the employee documents the request in writing;

(4) an employer makes changes to an employee's written work schedule at the employee's request under subsection (f) of Section 25;

(5) an employer subtracts hours from an employee's work schedule for disciplinary reasons for just cause, provided the employer documents the incident leading to the employee's discipline in writing;

(6) an employee's work shift or on-call shift cannot begin or continue due to threats to employees or property or due to the recommendation of a public official;

(7) operations cannot begin or continue because public utilities fail to supply electricity, water or gas or there is a failure in the public utilities or sewer system;

(8) operations cannot begin or continue due to a natural disaster or a similar cause not within the employer's control, including when the natural disaster or similar cause physically affects the work site;

(9) operation hours change or are substantially altered because a ticketed event is canceled, rescheduled, or changes in duration due to circumstances that are outside the employer's control and that occur after the employer provides the written work schedule under Section 25;

(10) an employer requests that an employee on a voluntary standby list work additional hours as described in Section 20 and the employee consents to work the additional hours; or

(11)(A) an employer requests that an employee work additional hours to address unanticipated customer needs or unexpected employee absence;

(B) the employee consents in writing to work the additional hours;

(C) if the employer maintains a voluntary standby list described in Section 20, the employer has contacted all of the employees listed on the voluntary standby list and requires additional employee coverage; and

(D)(i) if the employee is working a work shift at the time the employer makes the request, the employer makes the request either individually or as part of a group communication; or

(ii) if the employee is not working a work shift at the time the employer makes the request, the employer makes the request through a group communication.

Section 45. Notice and posting requirements.

(a) The Department shall make available to employers a template of a poster giving notice of the rights described in this Act. The poster must be in English.

(b) Employers shall display the poster at the workplace. If displaying the poster is not feasible, including situations in which the employees work remotely or do not have a regular workplace or job site, the employer may provide the poster on an individual basis in a physical or electronic format that is reasonably conspicuous and accessible.

Section 50. Record retention. An employer shall retain records that document the employer's compliance with this Act for 3 years.

Section 55. Retaliation prohibited. It is an unlawful practice for an employer to:

(1) Interfere with, restrain, deny or attempt to deny the exercise of any right protected under this Act; or

(2) Retaliate or in any way discriminate against an individual with respect to hire or tenure or any other term or condition of employment because the individual has inquired about the provisions of this Act.

Section 60. Enforcement, right of action, and administrative remedies.

(a) An employee asserting a violation of Section 55 may file a complaint with the Department or a civil action as provided in the Code of Civil Procedure.

(b) The Department has the same enforcement powers with respect to the rights established under this Act as are established under the Wage Payment and Collection Act.

(c) In addition to any other damages provided by law, the Department may assess a statutory penalty as follows:

(1) $500 for any violation of Section 45.

(2) $1,000 for any violation of Section 20, 25, 30, 35, 40, 50, or 55.

(3) If the Department determines that the employer paid the full remedy due, not including any statutory penalty, within 14 days of service of an order, the Department shall waive 50% of the amount of any statutory penalty imposed by order under this Section.

Section 65. Other rights and remedies. Nothing in this Act is intended to:

(1) limit employee rights or protections otherwise provided by law;

(2) create an additional remedy for an employee if a remedy equal to or better than a remedy in Section 30 or 40 is required by a collective bargaining agreement or other contract; or

(3) provide a cause of action to an employee for work schedule changes necessary to accommodate that employee under State or federal family or medical leave laws, State or federal disability laws, or under the Workers' Compensation Act.

Section 70. Action for retaliation.

(a) A person claiming to be aggrieved by a violation of Section 55, except a claim relating to Section 35, may file a civil action in circuit court. In any action under this subsection, the court may order injunctive relief and any other equitable relief that may be appropriate, including, but not limited to, reinstatement or the hiring of employees with or without back pay. A court may order back pay in an action under this subsection only for the 2-year period immediately preceding the filing of a complaint under this Act with the Department, or if a complaint was not filed before the action was commenced, the 2-year period immediately preceding the filing of the action. In any action under this subsection, the court may allow the prevailing party costs and reasonable attorney fees at trial and on appeal.

(b) In any action under subsection (a), the court may award, in addition to the relief authorized under subsection (a), compensatory damages or $200, whichever is greater, and punitive damages.

(c) Any attorney's fee agreement shall be subject to approval by the court.