On May 23, 2023, Evanston, Illinois, a Chicago suburb, enacted the Evanston Fair Workweek Ordinance, which imposes a sweeping, predictive scheduling obligation on employers to provide employees with advance notice of work schedules and pay employees “predictability pay” for late changes to an employee’s work schedule. The ordinance goes into effect just before the Labor Day holiday, on September 1, 2023.

Covered Employers

The ordinance applies to employers in the following industries:

• Building Services – including janitorial services, building maintenance services and security services;
• Health Care – including health care services or long-term care services that require licensure under certain licensing statutes and regulations;
• Hospitality/Hotels – including inns, hotels, motels and other locations where sleeping or rooming accommodations are furnished for hire and for rent, with seven (7) or more sleeping rooms;
• Manufacturing – this industry covers businesses involved in the production of tangible goods for use from raw or prepared materials;
• Food Service & Restaurants – this industry includes businesses licensed to serve food in Evanston that also have 30 locations and at least 200 employees in the aggregate, but does not include businesses with three (3) or fewer locations in Evanston that are owned by one employer and are operating under a franchise agreement;
• Retail – this industry covers businesses that sell to end users tangible products that are primarily for personal, household or family purposes, such as appliances, clothes, electronics, groceries and household items; and
• Warehouse Services – this industry includes businesses that store goods, ware or commodities for hire or compensation, which may include the loading, packing, sorting, stacking, wrapping, distribution and delivery of those goods.

An employer in one of these industries is covered under the ordinance if it: (A) employs or exercises control over 15 or more employees; or (B) is a franchisee with fewer than 100 employees but who is associated with a franchisor or a network of franchises with franchisees with more than 30 locations globally. All non-exempt employees who work at least two hours in a given week in Evanston for an employer covered by the ordinance are deemed “covered employees.”

General Requirements

Beginning September 1, 2023, the ordinance imposes on covered employers numerous requirements with respect to employee scheduling and notice of employee scheduling:

• Good Faith Work Schedule Estimates for Newly Hired Employees
  Prior to or on commencement of employment, employers must provide new employees with a written, good faith estimate of the employee’s work schedule for the first 90 days of employment, including good faith estimates of average weekly hours, days, and shifts (including on-call shifts). Employees may ask the employer to modify the projected days and hours, and employers must consider such requests. However, employers have the discretion to accept or reject the employee’s request, but the employer must respond in writing with its determination within three (3) days of the request.
• Work Schedule Posting and Changes
  Covered employers must publish in writing (either in a conspicuous location or using usual methods of communication, or both) the work schedules for employees at least 14 days before the first day of any new work schedule the week, with the posted written schedule identifying the shift and on-call status of all covered employees at the worksite. Upon written request, the employer must transmit the schedule to an employee electronically. An employer may change a work schedule after it is posted or transmitted but before the 14-day deadline without incurring a penalty.
• Compensation for Shift Changes
  Employers must compensate employees by paying “predictability pay” (as discussed below) for alterations to work schedules within the 14-day posting deadline.
• Assigning Additional Shifts
  Employers must offer additional hours to existing, qualified, part-time employees (those who are normally scheduled to work less than 35 hours in a workweek), and if such additional shifts are not accepted, before filling additional shifts with new hires (including temporary employees or contractors). However, employers are not required to offer existing employees additional shifts if such additional shifts would result in employees working more than 35 hours per week. When a shift is made available by an employer, employees will have 72 hours to accept the shift after which time the employer can hire new employees. If the expected duration of the available shift is less than two (2) weeks, then employees have 24 hours to accept the additional hours.
• Various notice and record-keeping requirements (as discussed below).

Employee Rights

Covered employees enjoy a number of rights under the ordinance pertaining to their work schedules:

• Employees have a right to decline previously unscheduled hours added to their schedule within 14 days of the first day of a new schedule (employees do not have the right to decline such changes if the change is due to certain events outside the control of the employer, such as utility outages, acts of nature, threats to public safety or strikes);
• “Predictability pay” (as defined below) for certain changes made to an employee’s schedule;
• Employees have a “right to rest,” meaning they can decline additional hours that are less than 11 hours after the end of the previous day’s shift; and
• Employees have the right to request a modified work schedule, such as changes in days or times of work, total work hours, job-sharing or status as full- or part-time. While the ordinance is silent on whether employers must accept these requests, employers may not retaliate against employees for making such requests.

Predictability Pay for Schedule Changes

If an employer changes a covered employee’s work schedule after the ordinance’s posting deadline, but more than 24 hours before the commencement of the changed shift, the employer must pay the employee one (1) hour of “predictability pay” at the employee’s regular rate of pay for each shift that is modified (i.e., adding hours, reducing hours or changing the date or time of the shift, even if there is no loss of hours).

If an employer modifies an employee’s scheduled with less than 24 hours’ notice, the employee is entitled to: (A) four (4) hours of pay or the number of hours in the Employee’s scheduled shift, whichever is less, when hours are cancelled or reduced; or (B) one (1) hour of predictability pay for all other changes. 50 percent of the employee’s customary rate of pay for the canceled or reduced hours. Additionally, if an employee works a shift that begins less than 11 hours after the end of the previous days shift (i.e., the employee does not invoke the “right to rest”) the employer must pay the employee 1.5 times the employee’s regular rate of pay for the time the employee works within the 11-hour rest window.

Employers do not need to pay predictability pay in certain situations (“exemption events”) including:

• When the schedule change is due to certain events outside the control of the employer, such as utility outages, acts of nature, threats to public safety or strikes;
• When covered employees mutually agree to trade or cover shifts;
• When an employee requests a shift change, which is confirmed in writing, including for the use of sick leave, vacation leave or other policies offered by the employer;
• When the employee self-schedules (e.g., non-exempt supervisor); or
• When the employer subtracts hours for disciplinary reasons for just cause, provided the employer documents in writing the incident leading to the discipline.

However, if there is a work schedule change requiring an employee to work additional hours for an exemption event, within 72 hours of the schedule change, the employer must provide written notice to the employee of the schedule change detailing the reason for the schedule change and why the employer believes the employee is deemed essential to the continued operations of the employer. Further, the employer must pay such employee a $2-per-hour hazard pay premium for the duration of the exemption event.

Effect on Employees with Collective Bargaining Agreements

The ordinance does not interfere with, impede or diminish the rights of employees with collective bargaining agreements (CBAs) to bargain with employers to establish wages or other work conditions in excess of the standards in the ordinance. Further, the ordinance’s requirements may be waived in a CBA, but only if the waiver is explicit and set forth in clear and unambiguous terms.

Notice, Posting and Record-Keeping Requirements

Employers must post in a conspicuous location at each worksite in Evanston a notice, which will be prepared by the City Manager, advising employees of their rights under the ordinance. Additionally, employers must provide employees a copy of the notice with the employee’s first paycheck.

The ordinance mandates that employers keep for at least three (3) years, or for the duration of any claim, civil action or investigation, a record of each covered employee’s name, hours worked, pay rate and records necessary to demonstrate compliance with the ordinance. This includes good faith estimates of work schedules, initial posted schedules, all changes to initial schedules, consent by employees to work hours and documentation of offers to existing employees to work additional hours and responses to such offers.

Enforcement and Remedies

Employers who violate the ordinance are subject to fines of $300 to $500 for each violation, and each day that a violation occurs is deemed a separate violation. Employers that retaliate against covered employees for exercising their rights under the ordinance will be subject to a $1,000 civil fine plus any compensatory damages suffered by the employee if the employee prevails after bringing a private right of action.

The City of Evanston is responsible for enforcing and administering the ordinance. In addition, aggrieved individuals may file a claim in court within two (2) years of the alleged violation. If successful, the aggrieved individual may recover an award of lost compensation, payment of predictability pay and costs and attorneys’ fees.

How Employers Should Prepare

Although the ordinance does not go into effect until September 1, 2023, employers in the covered industries with locations in Evanston should determine whether they are considered a covered employer. If an employer is covered by the ordinance, it should take steps now to evaluate current scheduling practices and make necessary changes to ensure compliance with the ordinance before it goes into effect. Employers should also identify covered employees so they are aware of which employees will need advance notice of work schedules. Finally, employers should consult with counsel to update handbooks and scheduling policies to ensure such policies are not inconsistent with the ordinance.

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