Full Text of SB0202 100th General Assembly
SB0202sam001 100TH GENERAL ASSEMBLY | Sen. Cristina Castro Filed: 4/18/2018
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| 1 | | AMENDMENT TO SENATE BILL 202
| 2 | | AMENDMENT NO. ______. Amend Senate Bill 202 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 1. Short title. This Act may be cited as the Fair | 5 | | Scheduling Act. | 6 | | Section 5. Purpose and findings. Unfair and unpredictable | 7 | | scheduling practices cause tens of thousands of Illinois | 8 | | workers to struggle to meet their responsibilities at home and | 9 | | on the job, harming their ability to make ends meet and the | 10 | | overall strength of the Illinois economy. When Illinois workers | 11 | | do not know when they are scheduled to work, or for how many | 12 | | hours, it is difficult to manage basic expenses, arrange child | 13 | | care, continue their education, pursue job training, or get a | 14 | | second job. This Act is intended to provide Illinois workers | 15 | | with the predictability and financial stability they need, | 16 | | create more stable, productive workplaces, and ensure the |
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| 1 | | health and well-being of Illinois workers. Therefore, the | 2 | | General Assembly finds that it is in the interest of employees, | 3 | | employers, and the people of Illinois to ensure that Illinois | 4 | | workers have fair and predictable work schedules, and that this | 5 | | Act 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 | 9 | | of the Illinois Domestic Violence Act of 1986. | 10 | | "Employee" means any individual suffered or permitted to | 11 | | work by an employer. An employee who is paid on a salary basis | 12 | | and whose rate of pay per week is greater than the 40th | 13 | | percentile of weekly earnings of full-time non-hourly workers | 14 | | in the Midwest Census Region, exclusive of board, lodging, or | 15 | | other facilities, as determined by the U.S. Department of | 16 | | Labor, but never less than $50,000 per year, or $962 per week, | 17 | | shall not be considered an employee for the purposes of this | 18 | | Act. An employee shall be considered to be paid on a salary | 19 | | basis if the employee regularly receives each pay period on a | 20 | | weekly, or less frequent basis, a predetermined amount | 21 | | constituting all or part of the employee's compensation that is | 22 | | not subject to reduction because of variations in the quality | 23 | | or quantity of the work performed and without regard to the | 24 | | number of days or hours worked. "Employee" does not include an | 25 | | employee subject to the hours of service requirements of 49 |
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| 1 | | U.S.C. 211 and 49 CFR 228. | 2 | | "Employer" means any individual, natural person, | 3 | | partnership, corporation, nonprofit corporation, association, | 4 | | general partnership, limited partnership, limited liability | 5 | | company, joint venture, business, trust, estate, association, | 6 | | person, governmental or quasi-governmental body, or any person | 7 | | or group of persons acting directly or indirectly in the | 8 | | interest of an employer in relation to an employee (including | 9 | | through services of a temporary services or staffing agency or | 10 | | similar entity) for whom one or more individuals are gainfully | 11 | | employed. | 12 | | "Family or household member" means a spouse, party to a | 13 | | civil union, parent, child, any other individual related by | 14 | | blood or current or prior marriage or civil union, other person | 15 | | who shares a relationship through a child, persons whose close | 16 | | relationship with the employee is the equivalent of a family | 17 | | relationship, and persons jointly residing in the same | 18 | | household. | 19 | | "Sexual violence" means any conduct proscribed by the | 20 | | Criminal Code of 2012 in Article 11 and in Sections 12-7.3, | 21 | | 12-7.4, and 12-7.5.
| 22 | | "Shift" means the consecutive hours an employer schedules | 23 | | an employee to work or to be available to report to work at the | 24 | | request or permission of the employer; provided that a break of | 25 | | one hour or less shall not be considered an interruption of | 26 | | consecutive hours. |
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| 1 | | "Work schedule" means all of an employee's shifts, | 2 | | including specific start and end times for each shift during a | 3 | | calendar week. | 4 | | Section 15. Application to collective bargaining | 5 | | agreements. | 6 | | (a) Nothing in this Act shall be deemed to affect the | 7 | | validity of, or change the terms of, a bona fide collective | 8 | | bargaining agreement in force on the effective date of this | 9 | | Act. After the effective date of this Act, to the extent | 10 | | permitted by law, all or any portion of this Act may be waived | 11 | | in a bona fide collective bargaining agreement; provided, that | 12 | | the waiver is explicitly set forth in the agreement in | 13 | | unambiguous terms and that the parties thereto intend to and do | 14 | | thereby waive all or a specific portion of this Act. | 15 | | (b) Nothing in this Act shall be construed to affect any | 16 | | policies or practices of an employer that provides greater, | 17 | | additional, or more generous wages, benefits, or working | 18 | | conditions 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 | 21 | | of the employer reports to work on any day or whose shift is | 22 | | canceled or reduced within 72 hours of the scheduled start of | 23 | | the shift is entitled to no less than one-half times the | 24 | | employee's regular rate of pay for any scheduled hours the |
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| 1 | | employee does not work, except when greater compensation is | 2 | | required by local, State, or federal law. Reporting pay is in | 3 | | addition to any wages earned for work performed by the | 4 | | employee. | 5 | | (b) Work schedules. An employer shall provide all employees | 6 | | with a written work schedule no later than 72 hours before the | 7 | | start of the first shift on the work schedule. The employer | 8 | | shall post a written work schedule in a conspicuous place at | 9 | | the workplace that is readily accessible and visible to all | 10 | | employees at the work location. The employer shall also | 11 | | transmit electronically the same work schedule in a manner that | 12 | | ensures that every employee receives the electronic schedule at | 13 | | the workplace and remotely. The employer shall update the work | 14 | | schedule and directly notify affected employees after making | 15 | | changes to the work schedule. An employee who is a victim of | 16 | | domestic violence or sexual violence or who has a family or | 17 | | household member who is a victim of domestic violence or sexual | 18 | | violence may request that his or her schedule not be posted or | 19 | | transmitted to other employees and that the schedule be | 20 | | submitted only to her or him in the method of delivery | 21 | | determined by the employee making the request to ensure his or | 22 | | her privacy and safety. An oral request shall be sufficient and | 23 | | implemented immediately. An employer may request a written | 24 | | statement from the employee that states that she or he is a | 25 | | victim or has a family or household member who is a victim. The | 26 | | statement shall satisfy any documentation or evidence needed |
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| 1 | | for the employer to implement the request. The employer may not | 2 | | require a written statement more than once in a calendar year | 3 | | from an employee for this purpose. The employee shall have up | 4 | | to 4 calendar weeks to submit the written statement. In | 5 | | addition, the Department may by rule establish requirements or | 6 | | exceptions necessary to ensure the privacy and safety of | 7 | | employees. | 8 | | (c) Exceptions. The requirements of subsection (a) or (b) | 9 | | of 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 | 3 | | employer 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 | 12 | | by units of local government. | 13 | | (a) The purpose of this Act is to ensure minimum labor | 14 | | standards. Nothing in this Act shall preempt or prevent any | 15 | | unit of local government, including any home rule unit, from | 16 | | enacting or implementing laws or policies that provide a higher | 17 | | standard that benefits employees, such as an increased notice | 18 | | period or the amount of reporting pay required of employers in | 19 | | Section 20 or the addition of any other provision that benefits | 20 | | employees as it relates to scheduling of work hours. | 21 | | (b) This Section is limitation under subsection (i) of | 22 | | Section 6 of Article VII of the Illinois Constitution on the | 23 | | concurrent exercise by home rule units of powers and functions | 24 | | exercised by the State.
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| 1 | | Section 30. Posting. | 2 | | (a) An employer shall post and keep posted in a conspicuous | 3 | | place on the premises of the employer where notices to | 4 | | employees are customarily posted a notice prepared by the | 5 | | Department summarizing the requirements of this Act and | 6 | | information pertaining to the filing of a charge. If an | 7 | | employer's workforce is comprised of a significant portion of | 8 | | workers who are not literate in English, the employer is | 9 | | responsible for providing the notice in a language in which the | 10 | | employees are literate. | 11 | | (b) An employer who willfully violates the posting | 12 | | requirements of this Section shall be subject to a civil | 13 | | penalty in an amount not to exceed $100 for each separate | 14 | | offense.
| 15 | | Section 35. Prohibited acts. | 16 | | (a) It is unlawful and a violation of this Act for any | 17 | | employer or any other person to discharge, threaten, penalize, | 18 | | or in any other manner discriminate, retaliate, or take any | 19 | | adverse action against an employee, including sexual | 20 | | harassment and discrimination, because the employee or a person | 21 | | or 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 | 3 | | the 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 | 16 | | under this Act is void as against public policy. The benefits | 17 | | provided to employees under this Act may not be diminished by | 18 | | an employment benefit program or plan entered into or renewed | 19 | | after the effective date of this Act.
| 20 | | (d) It is unlawful for an employer to interfere with, | 21 | | restrain, or deny the exercise of or the attempt to exercise | 22 | | any right provided under or in connection with this Act, | 23 | | including using the taking of paid time off as a negative | 24 | | factor in an employment action such as hiring, termination, | 25 | | evaluation, promotion, discipline, or counting the paid time | 26 | | off under a no-fault attendance policy. |
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| 1 | | (e) It is unlawful for an employer to threaten or in any | 2 | | other manner discriminate, retaliate, or take any adverse | 3 | | action against an employee based on his or her actual or | 4 | | perceived immigration or citizenship status.
| 5 | | Section 40. Enforcement. | 6 | | (a) An employee aggrieved by a violation of this Act or any | 7 | | rule adopted under this Act is entitled to recover any | 8 | | appropriate damages or other relief set forth in subsection (b) | 9 | | of this Section in a civil action or through a claim filed with | 10 | | the Department. Actions may be brought by one or more employees | 11 | | for and on behalf of themselves and other employees similarly | 12 | | situated. An action under this Section shall be brought no | 13 | | later than 3 years after the date of the last event that | 14 | | constitutes an alleged violation for which the action is | 15 | | brought. | 16 | | (b) An employee aggrieved by a violation of this Act or any | 17 | | rule 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 | 3 | | preponderance of evidence to have knowingly, repeatedly, or | 4 | | with reckless disregard violated any provision of this Section | 5 | | or any rule adopted under this Section is subject to civil | 6 | | money 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 | 17 | | county where the alleged violation occurred or where any | 18 | | employee who is a party to this action resides, without regard | 19 | | to exhaustion of remedies provided in this Act. | 20 | | (e) Claims filed under this Act with the Department shall | 21 | | be subject to the administrative procedures set forth herein | 22 | | and by rule for the enforcement of this Act. | 23 | | (f) The Department shall have the power to conduct | 24 | | investigations in connection with the administration and | 25 | | enforcement of this Section. The Department may compel, by | 26 | | subpoena, the attendance and testimony of witnesses and the |
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| 1 | | production of books, payrolls, records, papers, and other | 2 | | evidence in any investigation and may administer oaths to | 3 | | witnesses. If, upon investigation, the Department finds cause | 4 | | to believe that this Section has been violated, the Department | 5 | | shall notify the parties, in writing, and the matter shall be | 6 | | referred to an Administrative Law Judge to schedule a formal | 7 | | hearing in accordance with hearing procedures established by | 8 | | rule.
| 9 | | Any employer who has been ordered to pay wages, benefits, | 10 | | and other compensation or other relief due under this Act, who | 11 | | fails to seek timely review of the order as provided under this | 12 | | Act and who fails to comply within 15 calendar days after such | 13 | | demand or within 35 days after an administrative or court order | 14 | | is entered shall also be liable to pay a penalty to the | 15 | | Department of 20% of the amount found owing. All moneys | 16 | | recovered as fees and penalties by the Department under this | 17 | | Section, except those owing to the affected employee, shall be | 18 | | deposited into the Fair Scheduling Act Enforcement Fund, a | 19 | | special fund created in the State treasury. Money in the Fund | 20 | | shall be used by the Department for administration, | 21 | | investigation, and other expenses incurred in carrying out its | 22 | | duties under this Act. | 23 | | A final decision of an Administrative Law Judge issued | 24 | | pursuant to this Section is subject to the provisions of the | 25 | | Administrative Review Law and shall be enforceable in an action | 26 | | brought in the name of the people of the State of Illinois by |
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| 1 | | the Attorney General. | 2 | | Section 45. Administration; rules. The Department shall | 3 | | administer and enforce this Act. The Department shall adopt | 4 | | rules necessary to administer and enforce this Act in | 5 | | accordance with the Illinois Administrative Procedure Act. | 6 | | Section 97. Severability. The provisions of this Act are | 7 | | severable under Section 1.31 of the Statute on Statutes.
| 8 | | Section 98. The State Finance Act is amended by adding | 9 | | Section 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 | 13 | | becoming law.".
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