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Full Text of HB5046  100th General Assembly

HB5046 100TH GENERAL ASSEMBLY

  
  

 


 
100TH GENERAL ASSEMBLY
State of Illinois
2017 and 2018
HB5046

 

Introduced , by Rep. Emanuel Chris Welch

 

SYNOPSIS AS INTRODUCED:
 
New Act
30 ILCS 105/5.886 new

    Creates the Fair Scheduling Act. Requires employers to provide work schedules to employees at least 72 hours before the start of the first shift of the work schedule. Provides for reporting pay when an employee's work shift is canceled or reduced within 72 of the beginning of the shift. Prohibits retaliation by employers when employees seek to enforce rights under the Act. Authorizes private actions for damages. Provides for administration and enforcement by the Department of Labor. Provides for monetary penalties. Amends the State Finance Act to create the Fair Scheduling Act Enforcement Fund, a special fund in the State treasury. Sets forth the uses of moneys in the Fund. Effective immediately.


LRB100 18768 JLS 34004 b

FISCAL NOTE ACT MAY APPLY
HOME RULE NOTE ACT MAY APPLY
STATE MANDATES ACT MAY REQUIRE REIMBURSEMENT

 

 

A BILL FOR

 

HB5046LRB100 18768 JLS 34004 b

1    AN ACT concerning business.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 1. Short title. This Act may be cited as the Fair
5Scheduling Act.
 
6    Section 5. Purpose and findings. Unfair and unpredictable
7scheduling practices cause tens of thousands of Illinois
8workers to struggle to meet their responsibilities at home and
9on the job, harming their ability to make ends meet and the
10overall strength of the Illinois economy. When Illinois workers
11do not know when they are scheduled to work, or for how many
12hours, it is difficult to manage basic expenses, arrange child
13care, continue their education, pursue job training, or get a
14second job. This Act is intended to provide Illinois workers
15with the predictability and financial stability they need,
16create more stable, productive workplaces, and ensure the
17health and well-being of Illinois workers. Therefore, the
18General Assembly finds that it is in the interest of employees,
19employers, and the people of Illinois to ensure that Illinois
20workers have fair and predictable work schedules, and that this
21Act shall be interpreted liberally to aid in this purpose.
 
22    Section 10. Definitions. As used in this Act:

 

 

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1    "Department" means the Department of Labor
2    "Domestic violence" means abuse, as defined in Section 103
3of the Illinois Domestic Violence Act of 1986.
4    "Employee" means any individual suffered or permitted to
5work by an employer. An employee who is paid on a salary basis
6and whose rate of pay per week is greater than the 40th
7percentile of weekly earnings of full-time non-hourly workers
8in the Midwest Census Region, exclusive of board, lodging, or
9other facilities, as determined by the U.S. Department of
10Labor, but never less than $50,000 per year, or $962 per week,
11shall not be considered an employee for the purposes of this
12Act. An employee shall be considered to be paid on a salary
13basis if the employee regularly receives each pay period on a
14weekly, or less frequent basis, a predetermined amount
15constituting all or part of the employee's compensation that is
16not subject to reduction because of variations in the quality
17or quantity of the work performed and without regard to the
18number of days or hours worked.
19    "Employer" means any individual, natural person,
20partnership, corporation, nonprofit corporation, association,
21general partnership, limited partnership, limited liability
22company, joint venture, business, trust, estate, association,
23person, governmental or quasi-governmental body, or any person
24or group of persons acting directly or indirectly in the
25interest of an employer in relation to an employee (including
26through services of a temporary services or staffing agency or

 

 

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1similar entity) for whom one or more individuals are gainfully
2employed.
3    "Family or household member" means a spouse, party to a
4civil union, parent, child, any other individual related by
5blood or current or prior marriage or civil union, other person
6who shares a relationship through a child, persons whose close
7relationship with the employee is the equivalent of a family
8relationship, and persons jointly residing in the same
9household.
10    "Sexual violence" means any conduct proscribed by the
11Criminal Code of 2012 in Article 11 and in Sections 12-7.3,
1212-7.4, and 12-7.5.
13    "Shift" means the consecutive hours an employer schedules
14an employee to work or to be available to report to work at the
15request or permission of the employer; provided that a break of
16one hour or less shall not be considered an interruption of
17consecutive hours.
18    "Work schedule" means all of an employee's shifts,
19including specific start and end times for each shift during a
20calendar week.
 
21    Section 15. Application to collective bargaining
22agreements and employer practices.
23    (a) To the extent permitted by law, all or any portion of
24this Act may be waived in a bona fide collective bargaining
25agreement; provided, that the waiver is explicitly set forth in

 

 

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1the agreement in unambiguous terms and that the parties thereto
2intend to and do thereby waive all or a specific portion of
3this Act.
4    (b) Nothing in this Act shall be construed to affect any
5policies or practices of an employer that provides greater,
6additional, or more generous wages, benefits, or working
7conditions to an employee than those required under this Act.
 
8    Section 20. Compensation for unpredictable schedules.
9    (a) Reporting pay. An employee who by request or permission
10of the employer reports to work on any day or whose shift is
11canceled or reduced within 72 hours of the scheduled start of
12the shift is entitled to no less than one-half times the
13employee's regular rate of pay for any scheduled hours the
14employee does not work, except when greater compensation is
15required by local, State, or federal law. Reporting pay is in
16addition to any wages earned for work performed by the
17employee.
18    (b) Work schedules. An employer shall provide all employees
19with a written work schedule no later than 72 hours before the
20start of the first shift on the work schedule. The employer
21shall post a written work schedule in a conspicuous place at
22the workplace that is readily accessible and visible to all
23employees at the work location. The employer shall also
24transmit electronically the same work schedule in a manner that
25ensures that every employee receives the electronic schedule at

 

 

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1the workplace and remotely. The employer shall update the work
2schedule and directly notify affected employees after making
3changes to the work schedule. An employee who is a victim of
4domestic violence or sexual violence or who has a family or
5household member who is a victim of domestic violence or sexual
6violence may request that his or her schedule not be posted or
7transmitted to other employees and that the schedule be
8submitted only to her or him in the method of delivery
9determined by the employee making the request to ensure his or
10her privacy and safety. An oral request shall be sufficient and
11implemented immediately. An employer may request a written
12statement from the employee that states that she or he is a
13victim or has a family or household member who is a victim. The
14statement shall satisfy any documentation or evidence needed
15for the employer to implement the request. The employer may not
16require a written statement more than once in a calendar year
17from an employee for this purpose. The employee shall have up
18to 4 calendar weeks to submit the written statement. In
19addition, the Department may by rule establish requirements or
20exceptions necessary to ensure the privacy and safety of
21employees.
22    (c) Exceptions. The requirements of subsection (a) or (b)
23of this Section do not apply under the following circumstances:
24        (1) operations cannot begin or continue when civil
25    authorities recommend that work not begin or continue or if
26    there is a credible threat of violence that causes a

 

 

HB5046- 6 -LRB100 18768 JLS 34004 b

1    reasonable person to fear for the safety of the employer,
2    employees, or property. Lawful actions by employees, any
3    union, or any other individuals shall not constitute a
4    credible threat of violence.
5        (2) operations cannot begin or continue because a
6    public utility fails to supply electricity, water, or gas
7    or there is a failure in the public utilities or sewerage
8    system;
9        (3) operations cannot begin or continue due to acts of
10    nature including, but not limited to, flood, fire
11    explosion, earthquake, tidal wave, drought, war, civil
12    unrest, strikes, or other cause not within the employer's
13    control; or
14        (4) mutually agreed upon work shift swaps or coverage
15    among employees.
16    (d) Nothing in this Act shall be construed to prohibit an
17employer from:
18        (1) adopting policies related to scheduling that are
19    more beneficial to an employee than those required by this
20    Act;
21        (2) scheduling an employee for a shift with less than
22    72 hours' notice, provided the shift is mutually agreed
23    upon in writing by the employee and employer;
24        (3) granting an employee's request for time off.
 
25    Section 25. No preemption of higher standards for employees

 

 

HB5046- 7 -LRB100 18768 JLS 34004 b

1by units of local government.
2    (a) The purpose of this Act is to ensure minimum labor
3standards. Nothing in this Act shall preempt or prevent any
4unit of local government, including any home rule unit, from
5enacting or implementing laws or policies that provide a higher
6standard that benefits employees, such as an increased notice
7period or the amount of reporting pay required of employers in
8Section 20 or the addition of any other provision that benefits
9employees as it relates to scheduling of work hours.
10    (b) This Section is limitation under subsection (i) of
11Section 6 of Article VII of the Illinois Constitution on the
12concurrent exercise by home rule units of powers and functions
13exercised by the State.
 
14    Section 30. Posting.
15    (a) An employer shall post and keep posted in a conspicuous
16place on the premises of the employer where notices to
17employees are customarily posted a notice prepared by the
18Department summarizing the requirements of this Act and
19information pertaining to the filing of a charge. If an
20employer's workforce is comprised of a significant portion of
21workers who are not literate in English, the employer is
22responsible for providing the notice in a language in which the
23employees are literate.
24    (b) An employer who willfully violates the posting
25requirements of this Section shall be subject to a civil

 

 

HB5046- 8 -LRB100 18768 JLS 34004 b

1penalty in an amount not to exceed $100 for each separate
2offense.
 
3    Section 35. Prohibited acts.
4    (a) It is unlawful and a violation of this Act for any
5employer or any other person to discharge, threaten, penalize,
6or in any other manner discriminate, retaliate, or take any
7adverse action against an employee, including sexual
8harassment and discrimination, because the employee or a person
9or organization acting on the employee's behalf:
10        (1) exercises rights or attempts to exercise rights
11    under this Act;
12        (2) opposes practices the employee believes to be in
13    violation of this Act; or
14        (3) supports the exercise of rights under this Act.
15    (b) Exercising rights, opposing practices, or supporting
16the exercise of rights under this Act includes:
17        (1) filing an action or instituting or causing to be
18    instituted any proceeding under or related to this Act;
19        (2) providing or preparing to provide any information
20    in connection with any inquiry or proceeding relating to
21    any right provided under this Act;
22        (3) testifying or preparing to testify in any inquiry
23    or proceeding relating to any right provided under this Act
24    in a public hearing or to a community organization; or
25        (4) informing any other person that his or her employer

 

 

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1    engages in conduct that the employee reasonably and in good
2    faith believes violates any provisions of this Act.
3    (c) An agreement by an employee to waive his or her rights
4under this Act is void as against public policy. The benefits
5provided to employees under this Act may not be diminished by
6an employment benefit program or plan entered into or renewed
7after the effective date of this Act.
8    (d) It is unlawful for an employer to interfere with,
9restrain, or deny the exercise of or the attempt to exercise
10any right provided under or in connection with this Act,
11including using the taking of paid time off as a negative
12factor in an employment action such as hiring, termination,
13evaluation, promotion, discipline, or counting the paid time
14off under a no-fault attendance policy.
15    (e) It is unlawful for an employer to threaten or in any
16other manner discriminate, retaliate, or take any adverse
17action against an employee based on his or her actual or
18perceived immigration or citizenship status.
 
19    Section 40. Enforcement.
20    (a) An employee aggrieved by a violation of this Act or any
21rule adopted under this Act is entitled to recover any
22appropriate damages or other relief set forth in subsection (b)
23of this Section in a civil action or through a claim filed with
24the Department. Actions may be brought by one or more employees
25for and on behalf of themselves and other employees similarly

 

 

HB5046- 10 -LRB100 18768 JLS 34004 b

1situated. An action under this Section shall be brought no
2later than 3 years after the date of the last event that
3constitutes an alleged violation for which the action is
4brought.
5    (b) An employee aggrieved by a violation of this Act or any
6rule adopted under this Act shall be entitled to recover:
7        (1) all actual and compensatory damages, including the
8    amount of any wages, compensation, or benefits owed or
9    other compensation denied or lost to the person by reason
10    of the violation, with interest at the prevailing rate as
11    is necessary to remedy violations of this Act, as well as
12    punitive damages;
13        (2) any equitable relief as may be appropriate; and
14        (3) reasonable attorney's fees, reasonable expert
15    witness fees, and other costs of the action.
16    (c) An employer that the Department or a court finds by the
17preponderance of evidence to have knowingly, repeatedly, or
18with reckless disregard violated any provision of this Section
19or any rule adopted under this Section is subject to civil
20money penalty of:
21        (1) $250 for each separate offense if the other relief
22    imposed under subsection (b) is $1,000 or less; or
23        (2) a minimum of $500 and a maximum $3,000 for each
24    separate offense if the damages or other relief imposed
25    under subsection (b) is more than $1,000. In determining
26    the amount of the penalty, the gravity of the violation

 

 

HB5046- 11 -LRB100 18768 JLS 34004 b

1    shall be considered. Assessed penalties are payable to the
2    employee and shall include interest at the prevailing rate
3    necessary to remedy violations of this Section.
4    (d) Claims filed in circuit court shall be filed in the
5county where the alleged violation occurred or where any
6employee who is a party to this action resides, without regard
7to exhaustion of remedies provided in this Act.
8    (e) Claims filed under this Act with the Department shall
9be subject to the administrative procedures set forth herein
10and by rule for the enforcement of this Act.
11    (f) The Department shall have the power to conduct
12investigations in connection with the administration and
13enforcement of this Section. The Department may compel, by
14subpoena, the attendance and testimony of witnesses and the
15production of books, payrolls, records, papers, and other
16evidence in any investigation and may administer oaths to
17witnesses. If, upon investigation, the Department finds cause
18to believe that this Section has been violated, the Department
19shall notify the parties, in writing, and the matter shall be
20referred to an Administrative Law Judge to schedule a formal
21hearing in accordance with hearing procedures established by
22rule.
23    Any employer who has been ordered to pay wages, benefits,
24and other compensation or other relief due under this Act, who
25fails to seek timely review of the order as provided under this
26Act and who fails to comply within 15 calendar days after such

 

 

HB5046- 12 -LRB100 18768 JLS 34004 b

1demand or within 35 days after an administrative or court order
2is entered shall also be liable to pay a penalty to the
3Department of 20% of the amount found owing. All moneys
4recovered as fees and penalties by the Department under this
5Section, except those owing to the affected employee, shall be
6deposited into the Fair Scheduling Act Enforcement Fund, a
7special fund created in the State treasury. Money in the Fund
8shall be used by the Department for administration,
9investigation, and other expenses incurred in carrying out its
10duties under this Act.
11    A final decision of an Administrative Law Judge issued
12pursuant to this Section is subject to the provisions of the
13Administrative Review Law and shall be enforceable in an action
14brought in the name of the people of the State of Illinois by
15the Attorney General.
 
16    Section 45. Administration; rules. The Department shall
17administer and enforce this Act. The Department shall adopt
18rules necessary to administer and enforce this Act in
19accordance with the Illinois Administrative Procedure Act.
 
20    Section 97. Severability. The provisions of this Act are
21severable under Section 1.31 of the Statute on Statutes.
 
22    Section 98. The State Finance Act is amended by adding
23Section 5.886 as follows:
 

 

 

HB5046- 13 -LRB100 18768 JLS 34004 b

1    (30 ILCS 105/5.886 new)
2    Sec. 5.886. The Fair Scheduling Act Enforcement Fund.
 
3    Section 99. Effective date. This Act takes effect upon
4becoming law.