SB0202sam001 100TH GENERAL ASSEMBLY

Sen. Cristina Castro

Filed: 4/18/2018

10000SB0202sam001 LRB100 04913 JLS 38441 a

AMENDMENT TO SENATE BILL 202

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

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

Section 5. Purpose and findings. Unfair and unpredictable scheduling practices cause tens of thousands of Illinois workers to struggle to meet their responsibilities at home and on the job, harming their ability to make ends meet and the overall strength of the Illinois economy. When Illinois workers do not know when they are scheduled to work, or for how many hours, it is difficult to manage basic expenses, arrange child care, continue their education, pursue job training, or get a second job. This Act is intended to provide Illinois workers with the predictability and financial stability they need, create more stable, productive workplaces, and ensure the health and well-being of Illinois workers. Therefore, the General Assembly finds that it is in the interest of employees, employers, and the people of Illinois to ensure that Illinois workers have fair and predictable work schedules, and that this Act shall be interpreted liberally to aid in this purpose.

Section 10. Definitions. As used in this Act:

"Department" means the Department of Labor

"Domestic violence" means abuse, as defined in Section 103 of the Illinois Domestic Violence Act of 1986.

"Employee" means any individual suffered or permitted to work by an employer. An employee who is paid on a salary basis and whose rate of pay per week is greater than the 40th percentile of weekly earnings of full-time non-hourly workers in the Midwest Census Region, exclusive of board, lodging, or other facilities, as determined by the U.S. Department of Labor, but never less than $50,000 per year, or $962 per week, shall not be considered an employee for the purposes of this Act. An employee shall be considered to be paid on a salary basis if the employee regularly receives each pay period on a weekly, or less frequent basis, a predetermined amount constituting all or part of the employee's compensation that is not subject to reduction because of variations in the quality or quantity of the work performed and without regard to the number of days or hours worked. "Employee" does not include an employee subject to the hours of service requirements of 49 U.S.C. 211 and 49 CFR 228.

"Employer" means any individual, natural person, partnership, corporation, nonprofit corporation, association, general partnership, limited partnership, limited liability company, joint venture, business, trust, estate, association, person, governmental or quasi-governmental body, or any person or group of persons acting directly or indirectly in the interest of an employer in relation to an employee (including through services of a temporary services or staffing agency or similar entity) for whom one or more individuals are gainfully employed.

"Family or household member" means a spouse, party to a civil union, parent, child, any other individual related by blood or current or prior marriage or civil union, other person who shares a relationship through a child, persons whose close relationship with the employee is the equivalent of a family relationship, and persons jointly residing in the same household.

"Sexual violence" means any conduct proscribed by the Criminal Code of 2012 in Article 11 and in Sections 12-7.3, 12-7.4, and 12-7.5.

"Shift" means the consecutive hours an employer schedules an employee to work or to be available to report to work at the request or permission of the employer; provided that a break of one hour or less shall not be considered an interruption of consecutive hours.

"Work schedule" means all of an employee's shifts, including specific start and end times for each shift during a calendar week.

Section 15. Application to collective bargaining agreements.

(a) Nothing in this Act shall be deemed to affect the validity of, or change the terms of, a bona fide collective bargaining agreement in force on the effective date of this Act. After the effective date of this Act, to the extent permitted by law, all or any portion of this Act may be waived in a bona fide collective bargaining agreement; provided, that the waiver is explicitly set forth in the agreement in unambiguous terms and that the parties thereto intend to and do thereby waive all or a specific portion of this Act.

(b) Nothing in this Act shall be construed to affect any policies or practices of an employer that provides greater, additional, or more generous wages, benefits, or working conditions to an employee than those required under this Act.

Section 20. Compensation for unpredictable schedules.

(a) Reporting pay. An employee who by request or permission of the employer reports to work on any day or whose shift is canceled or reduced within 72 hours of the scheduled start of the shift is entitled to no less than one-half times the employee's regular rate of pay for any scheduled hours the employee does not work, except when greater compensation is required by local, State, or federal law. Reporting pay is in addition to any wages earned for work performed by the employee.

(b) Work schedules. An employer shall provide all employees with a written work schedule no later than 72 hours before the start of the first shift on the work schedule. The employer shall post a written work schedule in a conspicuous place at the workplace that is readily accessible and visible to all employees at the work location. The employer shall also transmit electronically the same work schedule in a manner that ensures that every employee receives the electronic schedule at the workplace and remotely. The employer shall update the work schedule and directly notify affected employees after making changes to the work schedule. An employee who is a victim of domestic violence or sexual violence or who has a family or household member who is a victim of domestic violence or sexual violence may request that his or her schedule not be posted or transmitted to other employees and that the schedule be submitted only to her or him in the method of delivery determined by the employee making the request to ensure his or her privacy and safety. An oral request shall be sufficient and implemented immediately. An employer may request a written statement from the employee that states that she or he is a victim or has a family or household member who is a victim. The statement shall satisfy any documentation or evidence needed for the employer to implement the request. The employer may not require a written statement more than once in a calendar year from an employee for this purpose. The employee shall have up to 4 calendar weeks to submit the written statement. In addition, the Department may by rule establish requirements or exceptions necessary to ensure the privacy and safety of employees.

(c) Exceptions. The requirements of subsection (a) or (b) of this Section do not apply under the following circumstances:

(1) operations cannot begin or continue when civil authorities recommend that work not begin or continue or if there is a credible threat of violence that causes a reasonable person to fear for the safety of the employer, employees, or property. Lawful actions by employees, any union, or any other individuals shall not constitute a credible threat of violence.

(2) operations cannot begin or continue because a public utility fails to supply electricity, water, or gas or there is a failure in the public utilities or sewerage system;

(3) operations cannot begin or continue due to acts of nature including, but not limited to, flood, fire explosion, earthquake, tidal wave, drought, war, civil unrest, strikes, or other cause not within the employer's control; or

(4) mutually agreed upon work shift swaps or coverage among employees.

(d) Nothing in this Act shall be construed to prohibit an employer from:

(1) adopting policies related to scheduling that are more beneficial to an employee than those required by this Act;

(2) scheduling an employee for a shift with less than 72 hours' notice, provided the shift is mutually agreed upon in writing by the employee and employer;

(3) granting an employee's request for time off.

Section 25. No preemption of higher standards for employees by units of local government.

(a) The purpose of this Act is to ensure minimum labor standards. Nothing in this Act shall preempt or prevent any unit of local government, including any home rule unit, from enacting or implementing laws or policies that provide a higher standard that benefits employees, such as an increased notice period or the amount of reporting pay required of employers in Section 20 or the addition of any other provision that benefits employees as it relates to scheduling of work hours.

(b) This Section is limitation under subsection (i) of Section 6 of Article VII of the Illinois Constitution on the concurrent exercise by home rule units of powers and functions exercised by the State.

Section 30. Posting.

(a) An employer shall post and keep posted in a conspicuous place on the premises of the employer where notices to employees are customarily posted a notice prepared by the Department summarizing the requirements of this Act and information pertaining to the filing of a charge. If an employer's workforce is comprised of a significant portion of workers who are not literate in English, the employer is responsible for providing the notice in a language in which the employees are literate.

(b) An employer who willfully violates the posting requirements of this Section shall be subject to a civil penalty in an amount not to exceed $100 for each separate offense.

Section 35. Prohibited acts.

(a) It is unlawful and a violation of this Act for any employer or any other person to discharge, threaten, penalize, or in any other manner discriminate, retaliate, or take any adverse action against an employee, including sexual harassment and discrimination, because the employee or a person or organization acting on the employee's behalf:

(1) exercises rights or attempts to exercise rights under this Act;

(2) opposes practices the employee believes to be in violation of this Act; or

(3) supports the exercise of rights under this Act.

(b) Exercising rights, opposing practices, or supporting the exercise of rights under this Act includes:

(1) filing an action or instituting or causing to be instituted any proceeding under or related to this Act;

(2) providing or preparing to provide any information in connection with any inquiry or proceeding relating to any right provided under this Act;

(3) testifying or preparing to testify in any inquiry or proceeding relating to any right provided under this Act in a public hearing or to a community organization; or

(4) informing any other person that his or her employer engages in conduct that the employee reasonably and in good faith believes violates any provisions of this Act.

(c) An agreement by an employee to waive his or her rights under this Act is void as against public policy. The benefits provided to employees under this Act may not be diminished by an employment benefit program or plan entered into or renewed after the effective date of this Act.

(d) It is unlawful for an employer to interfere with, restrain, or deny the exercise of or the attempt to exercise any right provided under or in connection with this Act, including using the taking of paid time off as a negative factor in an employment action such as hiring, termination, evaluation, promotion, discipline, or counting the paid time off under a no-fault attendance policy.

(e) It is unlawful for an employer to threaten or in any other manner discriminate, retaliate, or take any adverse action against an employee based on his or her actual or perceived immigration or citizenship status.

Section 40. Enforcement.

(a) An employee aggrieved by a violation of this Act or any rule adopted under this Act is entitled to recover any appropriate damages or other relief set forth in subsection (b) of this Section in a civil action or through a claim filed with the Department. Actions may be brought by one or more employees for and on behalf of themselves and other employees similarly situated. An action under this Section shall be brought no later than 3 years after the date of the last event that constitutes an alleged violation for which the action is brought.

(b) An employee aggrieved by a violation of this Act or any rule adopted under this Act shall be entitled to recover:

(1) all actual and compensatory damages, including the amount of any wages, compensation, or benefits owed or other compensation denied or lost to the person by reason of the violation, with interest at the prevailing rate as is necessary to remedy violations of this Act, as well as punitive damages;

(2) any equitable relief as may be appropriate; and

(3) reasonable attorney's fees, reasonable expert witness fees, and other costs of the action.

(c) An employer that the Department or a court finds by the preponderance of evidence to have knowingly, repeatedly, or with reckless disregard violated any provision of this Section or any rule adopted under this Section is subject to civil money penalty of:

(1) $250 for each separate offense if the other relief imposed under subsection (b) is $1,000 or less; or

(2) a minimum of $500 and a maximum $3,000 for each separate offense if the damages or other relief imposed under subsection (b) is more than $1,000. In determining the amount of the penalty, the gravity of the violation shall be considered. Assessed penalties are payable to the employee and shall include interest at the prevailing rate necessary to remedy violations of this Section.

(d) Claims filed in circuit court shall be filed in the county where the alleged violation occurred or where any employee who is a party to this action resides, without regard to exhaustion of remedies provided in this Act.

(e) Claims filed under this Act with the Department shall be subject to the administrative procedures set forth herein and by rule for the enforcement of this Act.

(f) The Department shall have the power to conduct investigations in connection with the administration and enforcement of this Section. The Department may compel, by subpoena, the attendance and testimony of witnesses and the production of books, payrolls, records, papers, and other evidence in any investigation and may administer oaths to witnesses. If, upon investigation, the Department finds cause to believe that this Section has been violated, the Department shall notify the parties, in writing, and the matter shall be referred to an Administrative Law Judge to schedule a formal hearing in accordance with hearing procedures established by rule.

Any employer who has been ordered to pay wages, benefits, and other compensation or other relief due under this Act, who fails to seek timely review of the order as provided under this Act and who fails to comply within 15 calendar days after such demand or within 35 days after an administrative or court order is entered shall also be liable to pay a penalty to the Department of 20% of the amount found owing. All moneys recovered as fees and penalties by the Department under this Section, except those owing to the affected employee, shall be deposited into the Fair Scheduling Act Enforcement Fund, a special fund created in the State treasury. Money in the Fund shall be used by the Department for administration, investigation, and other expenses incurred in carrying out its duties under this Act.

A final decision of an Administrative Law Judge issued pursuant to this Section is subject to the provisions of the Administrative Review Law and shall be enforceable in an action brought in the name of the people of the State of Illinois by the Attorney General.

Section 45. Administration; rules. The Department shall administer and enforce this Act. The Department shall adopt rules necessary to administer and enforce this Act in accordance with the Illinois Administrative Procedure Act.

Section 97. Severability. The provisions of this Act are severable under Section 1.31 of the Statute on Statutes.

Section 98. The State Finance Act is amended by adding Section 5.886 as follows:

(30 ILCS 105/5.886 new)

Sec. 5.886. The Fair Scheduling Act Enforcement Fund.

Section 99. Effective date. This Act takes effect upon becoming law.".