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Full Text of SB0202  100th General Assembly


Sen. Cristina Castro

Filed: 4/18/2018





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2    AMENDMENT NO. ______. Amend Senate Bill 202 by replacing
3everything after the enacting clause with the following:
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



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1health and well-being of Illinois workers. Therefore, the
2General Assembly finds that it is in the interest of employees,
3employers, and the people of Illinois to ensure that Illinois
4workers have fair and predictable work schedules, and that this
5Act shall be interpreted liberally to aid in this purpose.
6    Section 10. Definitions. As used in this Act:
7    "Department" means the Department of Labor
8    "Domestic violence" means abuse, as defined in Section 103
9of the Illinois Domestic Violence Act of 1986.
10    "Employee" means any individual suffered or permitted to
11work by an employer. An employee who is paid on a salary basis
12and whose rate of pay per week is greater than the 40th
13percentile of weekly earnings of full-time non-hourly workers
14in the Midwest Census Region, exclusive of board, lodging, or
15other facilities, as determined by the U.S. Department of
16Labor, but never less than $50,000 per year, or $962 per week,
17shall not be considered an employee for the purposes of this
18Act. An employee shall be considered to be paid on a salary
19basis if the employee regularly receives each pay period on a
20weekly, or less frequent basis, a predetermined amount
21constituting all or part of the employee's compensation that is
22not subject to reduction because of variations in the quality
23or quantity of the work performed and without regard to the
24number of days or hours worked. "Employee" does not include an
25employee subject to the hours of service requirements of 49



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1U.S.C. 211 and 49 CFR 228.
2    "Employer" means any individual, natural person,
3partnership, corporation, nonprofit corporation, association,
4general partnership, limited partnership, limited liability
5company, joint venture, business, trust, estate, association,
6person, governmental or quasi-governmental body, or any person
7or group of persons acting directly or indirectly in the
8interest of an employer in relation to an employee (including
9through services of a temporary services or staffing agency or
10similar entity) for whom one or more individuals are gainfully
12    "Family or household member" means a spouse, party to a
13civil union, parent, child, any other individual related by
14blood or current or prior marriage or civil union, other person
15who shares a relationship through a child, persons whose close
16relationship with the employee is the equivalent of a family
17relationship, and persons jointly residing in the same
19    "Sexual violence" means any conduct proscribed by the
20Criminal Code of 2012 in Article 11 and in Sections 12-7.3,
2112-7.4, and 12-7.5.
22    "Shift" means the consecutive hours an employer schedules
23an employee to work or to be available to report to work at the
24request or permission of the employer; provided that a break of
25one hour or less shall not be considered an interruption of
26consecutive hours.



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1    "Work schedule" means all of an employee's shifts,
2including specific start and end times for each shift during a
3calendar week.
4    Section 15. Application to collective bargaining
6    (a) Nothing in this Act shall be deemed to affect the
7validity of, or change the terms of, a bona fide collective
8bargaining agreement in force on the effective date of this
9Act. After the effective date of this Act, to the extent
10permitted by law, all or any portion of this Act may be waived
11in a bona fide collective bargaining agreement; provided, that
12the waiver is explicitly set forth in the agreement in
13unambiguous terms and that the parties thereto intend to and do
14thereby waive all or a specific portion of this Act.
15    (b) Nothing in this Act shall be construed to affect any
16policies or practices of an employer that provides greater,
17additional, or more generous wages, benefits, or working
18conditions to an employee than those required under this Act.
19    Section 20. Compensation for unpredictable schedules.
20    (a) Reporting pay. An employee who by request or permission
21of the employer reports to work on any day or whose shift is
22canceled or reduced within 72 hours of the scheduled start of
23the shift is entitled to no less than one-half times the
24employee's regular rate of pay for any scheduled hours the



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1employee does not work, except when greater compensation is
2required by local, State, or federal law. Reporting pay is in
3addition to any wages earned for work performed by the
5    (b) Work schedules. An employer shall provide all employees
6with a written work schedule no later than 72 hours before the
7start of the first shift on the work schedule. The employer
8shall post a written work schedule in a conspicuous place at
9the workplace that is readily accessible and visible to all
10employees at the work location. The employer shall also
11transmit electronically the same work schedule in a manner that
12ensures that every employee receives the electronic schedule at
13the workplace and remotely. The employer shall update the work
14schedule and directly notify affected employees after making
15changes to the work schedule. An employee who is a victim of
16domestic violence or sexual violence or who has a family or
17household member who is a victim of domestic violence or sexual
18violence may request that his or her schedule not be posted or
19transmitted to other employees and that the schedule be
20submitted only to her or him in the method of delivery
21determined by the employee making the request to ensure his or
22her privacy and safety. An oral request shall be sufficient and
23implemented immediately. An employer may request a written
24statement from the employee that states that she or he is a
25victim or has a family or household member who is a victim. The
26statement shall satisfy any documentation or evidence needed



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1for the employer to implement the request. The employer may not
2require a written statement more than once in a calendar year
3from an employee for this purpose. The employee shall have up
4to 4 calendar weeks to submit the written statement. In
5addition, the Department may by rule establish requirements or
6exceptions necessary to ensure the privacy and safety of
8    (c) Exceptions. The requirements of subsection (a) or (b)
9of this Section do not apply under the following circumstances:
10        (1) operations cannot begin or continue when civil
11    authorities recommend that work not begin or continue or if
12    there is a credible threat of violence that causes a
13    reasonable person to fear for the safety of the employer,
14    employees, or property. Lawful actions by employees, any
15    union, or any other individuals shall not constitute a
16    credible threat of violence.
17        (2) operations cannot begin or continue because a
18    public utility fails to supply electricity, water, or gas
19    or there is a failure in the public utilities or sewerage
20    system;
21        (3) operations cannot begin or continue due to acts of
22    nature including, but not limited to, flood, fire
23    explosion, earthquake, tidal wave, drought, war, civil
24    unrest, strikes, or other cause not within the employer's
25    control; or
26        (4) mutually agreed upon work shift swaps or coverage



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1    among employees.
2    (d) Nothing in this Act shall be construed to prohibit an
3employer from:
4        (1) adopting policies related to scheduling that are
5    more beneficial to an employee than those required by this
6    Act;
7        (2) scheduling an employee for a shift with less than
8    72 hours' notice, provided the shift is mutually agreed
9    upon in writing by the employee and employer;
10        (3) granting an employee's request for time off.
11    Section 25. No preemption of higher standards for employees
12by units of local government.
13    (a) The purpose of this Act is to ensure minimum labor
14standards. Nothing in this Act shall preempt or prevent any
15unit of local government, including any home rule unit, from
16enacting or implementing laws or policies that provide a higher
17standard that benefits employees, such as an increased notice
18period or the amount of reporting pay required of employers in
19Section 20 or the addition of any other provision that benefits
20employees as it relates to scheduling of work hours.
21    (b) This Section is limitation under subsection (i) of
22Section 6 of Article VII of the Illinois Constitution on the
23concurrent exercise by home rule units of powers and functions
24exercised by the State.



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1    Section 30. Posting.
2    (a) An employer shall post and keep posted in a conspicuous
3place on the premises of the employer where notices to
4employees are customarily posted a notice prepared by the
5Department summarizing the requirements of this Act and
6information pertaining to the filing of a charge. If an
7employer's workforce is comprised of a significant portion of
8workers who are not literate in English, the employer is
9responsible for providing the notice in a language in which the
10employees are literate.
11    (b) An employer who willfully violates the posting
12requirements of this Section shall be subject to a civil
13penalty in an amount not to exceed $100 for each separate
15    Section 35. Prohibited acts.
16    (a) It is unlawful and a violation of this Act for any
17employer or any other person to discharge, threaten, penalize,
18or in any other manner discriminate, retaliate, or take any
19adverse action against an employee, including sexual
20harassment and discrimination, because the employee or a person
21or organization acting on the employee's behalf:
22        (1) exercises rights or attempts to exercise rights
23    under this Act;
24        (2) opposes practices the employee believes to be in
25    violation of this Act; or



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1        (3) supports the exercise of rights under this Act.
2    (b) Exercising rights, opposing practices, or supporting
3the exercise of rights under this Act includes:
4        (1) filing an action or instituting or causing to be
5    instituted any proceeding under or related to this Act;
6        (2) providing or preparing to provide any information
7    in connection with any inquiry or proceeding relating to
8    any right provided under this Act;
9        (3) testifying or preparing to testify in any inquiry
10    or proceeding relating to any right provided under this Act
11    in a public hearing or to a community organization; or
12        (4) informing any other person that his or her employer
13    engages in conduct that the employee reasonably and in good
14    faith believes violates any provisions of this Act.
15    (c) An agreement by an employee to waive his or her rights
16under this Act is void as against public policy. The benefits
17provided to employees under this Act may not be diminished by
18an employment benefit program or plan entered into or renewed
19after the effective date of this Act.
20    (d) It is unlawful for an employer to interfere with,
21restrain, or deny the exercise of or the attempt to exercise
22any right provided under or in connection with this Act,
23including using the taking of paid time off as a negative
24factor in an employment action such as hiring, termination,
25evaluation, promotion, discipline, or counting the paid time
26off under a no-fault attendance policy.



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1    (e) It is unlawful for an employer to threaten or in any
2other manner discriminate, retaliate, or take any adverse
3action against an employee based on his or her actual or
4perceived immigration or citizenship status.
5    Section 40. Enforcement.
6    (a) An employee aggrieved by a violation of this Act or any
7rule adopted under this Act is entitled to recover any
8appropriate damages or other relief set forth in subsection (b)
9of this Section in a civil action or through a claim filed with
10the Department. Actions may be brought by one or more employees
11for and on behalf of themselves and other employees similarly
12situated. An action under this Section shall be brought no
13later than 3 years after the date of the last event that
14constitutes an alleged violation for which the action is
16    (b) An employee aggrieved by a violation of this Act or any
17rule adopted under this Act shall be entitled to recover:
18        (1) all actual and compensatory damages, including the
19    amount of any wages, compensation, or benefits owed or
20    other compensation denied or lost to the person by reason
21    of the violation, with interest at the prevailing rate as
22    is necessary to remedy violations of this Act, as well as
23    punitive damages;
24        (2) any equitable relief as may be appropriate; and
25        (3) reasonable attorney's fees, reasonable expert



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1    witness fees, and other costs of the action.
2    (c) An employer that the Department or a court finds by the
3preponderance of evidence to have knowingly, repeatedly, or
4with reckless disregard violated any provision of this Section
5or any rule adopted under this Section is subject to civil
6money penalty of:
7        (1) $250 for each separate offense if the other relief
8    imposed under subsection (b) is $1,000 or less; or
9        (2) a minimum of $500 and a maximum $3,000 for each
10    separate offense if the damages or other relief imposed
11    under subsection (b) is more than $1,000. In determining
12    the amount of the penalty, the gravity of the violation
13    shall be considered. Assessed penalties are payable to the
14    employee and shall include interest at the prevailing rate
15    necessary to remedy violations of this Section.
16    (d) Claims filed in circuit court shall be filed in the
17county where the alleged violation occurred or where any
18employee who is a party to this action resides, without regard
19to exhaustion of remedies provided in this Act.
20    (e) Claims filed under this Act with the Department shall
21be subject to the administrative procedures set forth herein
22and by rule for the enforcement of this Act.
23    (f) The Department shall have the power to conduct
24investigations in connection with the administration and
25enforcement of this Section. The Department may compel, by
26subpoena, the attendance and testimony of witnesses and the



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1production of books, payrolls, records, papers, and other
2evidence in any investigation and may administer oaths to
3witnesses. If, upon investigation, the Department finds cause
4to believe that this Section has been violated, the Department
5shall notify the parties, in writing, and the matter shall be
6referred to an Administrative Law Judge to schedule a formal
7hearing in accordance with hearing procedures established by
9    Any employer who has been ordered to pay wages, benefits,
10and other compensation or other relief due under this Act, who
11fails to seek timely review of the order as provided under this
12Act and who fails to comply within 15 calendar days after such
13demand or within 35 days after an administrative or court order
14is entered shall also be liable to pay a penalty to the
15Department of 20% of the amount found owing. All moneys
16recovered as fees and penalties by the Department under this
17Section, except those owing to the affected employee, shall be
18deposited into the Fair Scheduling Act Enforcement Fund, a
19special fund created in the State treasury. Money in the Fund
20shall be used by the Department for administration,
21investigation, and other expenses incurred in carrying out its
22duties under this Act.
23    A final decision of an Administrative Law Judge issued
24pursuant to this Section is subject to the provisions of the
25Administrative Review Law and shall be enforceable in an action
26brought in the name of the people of the State of Illinois by



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1the Attorney General.
2    Section 45. Administration; rules. The Department shall
3administer and enforce this Act. The Department shall adopt
4rules necessary to administer and enforce this Act in
5accordance with the Illinois Administrative Procedure Act.
6    Section 97. Severability. The provisions of this Act are
7severable under Section 1.31 of the Statute on Statutes.
8    Section 98. The State Finance Act is amended by adding
9Section 5.886 as follows:
10    (30 ILCS 105/5.886 new)
11    Sec. 5.886. The Fair Scheduling Act Enforcement Fund.
12    Section 99. Effective date. This Act takes effect upon
13becoming law.".