HomeMy WebLinkAbout024-O-23 Amending the City of Evanston City Code to Create 3-34 “Evanston Fair Workweek Ordinance”24-O-23
~1~
5/1/23
5/22/23
24-O-23
AN ORDINANCE
Amending the City of Evanston City Code to
Create 3-34 “Evanston Fair Workweek Ordinance”
WHEREAS, The City of Evanston acknowledges that all workers deserve
healthy, predictable schedules, the opportunity to work, and flexibility to care for their
families; and
WHEREAS, women and workers of color are most likely to experience the
effects of a new, more volatile workweek; and
WHEREAS, last minute scheduling impacts workers' ability to obtain
childcare, schedule appointments, or take shifts for second jobs; and last-minute
cancellations leave workers without pay; and
WHEREAS, millions of working people are getting too few hours and can
only find part-time jobs, despite needing full-time hours to support their families;
WHEREAS, fair workweek ordinances, also known as fair scheduling,
address underemployment, advance notice of schedules so workers can make
adequate accommodations and plans, and gives workers the right to adequately rest
between closing and opening shifts; and
WHEREAS, City Council has determined that it is in the best interests of
the City to create a fair work week ordinance to protect the interest of employees in the
City,
Page 1 of 13 Doc ID: ca37a437e38f566005fb40813af03350f2b28f31
24-O-23
~2~
NOW BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
EVANSTON, COOK COUNTY, ILLINOIS:
SECTION 1: That Chapter 34, Evanston Fair Work Week Ordinance, of
Title 3, Business Regulation, is hereby further created by adding the following:
CHAPTER 34 – EVANSTON FAIR WORK WEEK ORDINANCE
3-34-1. -PURPOSE AND INTENT.
This chapter shall be known and may be cited as the "City of Evanston or Evanston”
Fair Workweek Ordinance". It is the purpose of this chapter and the policy of the City to
require adequate notice of work schedules, compensation for employer-initiated
schedule changes, access to sufficient hours of work for part-time employees, healthy
rest between shifts, and a protected right to have input into schedules.
This ordinance should be interpreted and applied as defined in this Chapter.
3-34-2. –DEFINITIONS.
As used in this Chapter, the following terms shall have the following meanings:
CALENDAR WEEK. A period of seven consecutive days.
COVERED EMPLOYER. A person (including a natural person, corporation,
nonprofit corporation, general partnership, limited
partnership, limited liability partnership, limited liability
company, business trust, estate, trust, association, joint
venture, agency, instrumentality, or any other legal or
commercial entity, whether domestic or foreign), who
directly or indirectly (including through the services of a
temporary services or staffing agency or similar entity)
employs or exercises control over 15 or more employees
in Covered Industries, as defined in this Section.
“Covered Employer” shall include franchisees with fewer
than one hundred (100) employees but are associated
with a franchisor or a network of franchises with
franchisees with more than 30 locations globally.
COVERED INDUSTRY. (1) Hospitality: any business advertised or held out to
Page 2 of 13 Doc ID: ca37a437e38f566005fb40813af03350f2b28f31
24-O-23
~3~
the public to be an inn, hotel, motel, family hotel,
apartment hotel, lodging house, dormitory or other place,
where sleeping or rooming accommodations are
furnished, used or maintained for hire or rent for the
accommodation of guests, lodgers or roomers, and in
which seven or more sleeping rooms, in any combination
on one or more floors of such building or structure, are
not intermingled on any given floor with dwelling units
owned by persons other than the hotel. The term shall
not include "single-room occupancy buildings", "bed-and-
breakfast establishments”, or "vacation rentals" licensed
or registered, or required to be licensed or registered, by
the city.
(2) Food Service and Restaurants: any business
licensed to serve food in the City of Evanston which also
has, globally, at least 30 locations and at least 200
employees in the aggregate. The term "Restaurant" shall
not include businesses limited to three or fewer locations
in the City that are owned by one Employer and
operating under a sole franchise.
(3) Retail: any business engaged in the sale to end
users of tangible products that are primarily for personal,
household, or family purposes, including, but not limited
to, appliances, clothing, electronics, groceries, and
household items.
(4) Warehouse service: any business engaged in the
storage of goods, wares, or commodities for hire or
compensation, and, in connection with this operation,
may include the loading, packing, sorting, stacking,
wrapping, distribution, and delivery of those goods.
(5) Manufacturing: any business engaged in the
production of tangible goods for use from raw or
prepared materials by giving the materials new forms,
qualities, properties, or combinations, whether by hand-
labor or machines.
(6) Building Services: any business engaging in the
care and maintenance of property, including, but not
limited to, janitorial services, building maintenance
services, and security services. This definition does not
include on-duty police officers or other government
officials performing their official duties.
Page 3 of 13 Doc ID: ca37a437e38f566005fb40813af03350f2b28f31
24-O-23
~4~
EMPLOYEE. Any person who:
(1) In a Calendar Week performs at least two hours of
work within the geographic boundaries of the City
of Evanston; and
(2) Qualifies as an Employee entitled to payment of a
minimum wage from any Employer under the
Illinois minimum wage law, as provide under
Illinois Labor Law
FRANCHISE. The same as defined in Illinois Law 815 ILCS 705/3 of
the Illinois Franchise Disclosure Act.
FRANCHISEE. The same as defined in Illinois Law 815 ILCS 705/3 of
the Illinois Franchise Disclosure Act.
FRANCHISOR. The same as defined in Illinois Law 815 ILCS 705/3 of
the Illinois Franchise Disclosure Act.
PREDICTABILITY PAY. Wages paid to an Employee, calculated on an hourly
basis at the Employee’s regular rate as compensation for
schedule changes made by a Covered Employer to a
schedule pursuant to this chapter, in addition to any
wages earned for work performed by that Employee.
WORK SCHEDULE. All of an Employee’s shifts, including specific start and
end times for each shift, during a Calendar Week.
WRITING OR WRITTEN Printed or printable communication in physical or
electronic format including a communication that is
transmitted through electronic mail, text message or a
computer system or is otherwise sent and stored
electronically.
3-34-3. -APPLICATION TO COLLECTIVE BARGAINING AGREEMENTS.
Nothing in this chapter shall be deemed to interfere with, impede, or in any way diminish
the right of employees to bargain collectively with their employers through
representatives of their own choosing in order to establish wages or other conditions of
work in excess of the applicable minimum standards of the provisions of this chapter. To
the extent permitted by law, all or any portion of the applicable requirements of this
Chapter may be waived in a bona fide collective bargaining agreement; provided, that
such waiver is explicitly set forth in such agreement in clear and unambiguous terms
Page 4 of 13 Doc ID: ca37a437e38f566005fb40813af03350f2b28f31
24-O-23
~5~
that the parties thereto intend to and do thereby waive all of or a specific portion(s) of
this Chapter.
3-34-4. ADVANCE NOTICE OF WORK SCHEDULES.
(A) Initial estimate of work schedule.
(1) Prior to or on commencement of employment, an Employer shall provide
every Employee with a good faith estimate in writing of the Employee's projected
days and hours of work for the first ninety days of employment, including:
(a) The average number of weekly work hours the Employee can expect
to work each week;
(b) Whether the Employee can expect to work any on-call shifts;
(c) A subset of days and a subset of times or shifts that the Employee can
expect to work, or days of the week and times or shifts on which the
Employee will not be scheduled to work. The good faith estimate is not a
contractual offer binding the Employer, but an estimate made without a
good faith basis is a violation of this section.
(2) Prior to or on commencement of employment, the Employee may request that
the Employer modify the projected days and hours of work provided under
subsection (A)(1) of this section. The Employer shall consider any such request,
and in its sole discretion may accept or reject the request, provided that the
Employer shall notify the Employee of Employer's determination in writing within
three days of the request.
(B) Advance notice of work schedule.
(1) An Employer shall provide its Employees with written notice of work hours no
later than 14 days before the first day of any new Work Schedule by posting the
Work Schedule within the unit or department or workgroup either in a
conspicuous place at the workplace that is readily accessible and visible to all
Covered Employees or using the usual methods of communication, or both. The
written Work Schedule shall include the shifts and on-call status of all current
Employees at that worksite. Additionally, upon written request of an Employee,
an Employer shall transmit the Work Schedule by electronic means.
Page 5 of 13 Doc ID: ca37a437e38f566005fb40813af03350f2b28f31
24-O-23
~6~
(2) An Employer may change an Employee's Work Schedule after it is posted
and/or transmitted, up to the deadline articulated in subsection (B)(1) without
penalty. After that deadline, such changes shall be subject to the notice and
compensation requirements set forth in this chapter.
(3) Employees who Self-schedule shall not be bound by this subsection (B), nor
shall their Employers to the extent that the Employee Self schedules.
(4) An Employee who is a victim of Domestic Violence or Sexual Violence or who
has a family or household member who is a victim may request that the
Employee's Work Schedule not be posted or transmitted to other employees. An
oral or written request shall be sufficient and implemented immediately and is
sufficient until the Covered Employee gives written permission to post the
Employee's schedule. An Employer may request a written statement from the
Covered Employee that states that the Covered Employee is, or has a family or
household member who is, a victim of Domestic Violence or Sexual Violence.
The written statement shall constitute the documentation needed for the
Employer to implement the request. The Employer may not require a written
statement more than once in a calendar year from any Employee for this
purpose.
3-34-5. NOTICE, RIGHT TO DECLINE, AND COMPENSATION FOR SCHEDULE
CHANGES.
(A) Right to decline. Subject to the exceptions in subsection (D) of this section, an
Employee has the right to decline any previously unscheduled hours that the
Employer adds to the Employee's schedule, and for which the Employee has been
provided advance notice of less than 14 days before the first day of any new
schedule.
(B) Alterations. Subject to the exceptions in subsection (D) of this Section, a Covered
Employer shall provide an Employee with the following compensation per Shift for
each previously scheduled Shift that the Covered Employer adds or subtracts hours,
moves to another date or time, cancels, or each previously unscheduled Shift that
the Covered Employer adds to the Employee's schedule:
(1) With less than 14 days' notice, but 24 hours or more notice to the Employee:
one hour of Predictability Pay;
Page 6 of 13 Doc ID: ca37a437e38f566005fb40813af03350f2b28f31
24-O-23
~7~
(2) With less than 24 hours to the Employee: (i) four hours or the number of
hours in the Employee's scheduled Shift, whichever is less, when hours are
canceled or reduced; (ii) one hour of Predictability Pay for all other changes. The
compensation required by this subsection shall be in addition to the Employee's
regular pay for working that Shift.
(C) The Employer shall amend the posted Work Schedule and transmit it to the
Employee in writing within 24 hours of a schedule change.
(D) Exceptions. The requirements of this section shall not apply in the following
circumstances:
(1) A Work Schedule change because:
(a) of threats to Employers, Employees, or property, or when civil
authorities recommend that work not begin or continue;
(b) public utilities fail to supply electricity, water, or gas, or the sewer
system fails to serve the location of work;
(c) of acts of nature (including, but not limited to, flood, earthquake,
tornado, or blizzard) or weather that would prohibit business operations,
including but not limited to rain impacting landscape operations;
(d) war, civil unrest, strikes, threats to public safety, or pandemics.
(e) If there is a work schedule change requiring an employee to work
additional hours due to an event described in subsections (a)-(e) above,
an employer is required to:
(i) Within 72 hours of the schedule change, provide notice in writing
to the employee of the schedule change and the reason for the
schedule change as well as why the employee is deemed essential
to the continued operations of the employer, and
(i) Pay the employee whose schedule has been changed, $2.00 per
hour as hazard pay in addition to the wages that the employee
would normally earn for the shift that the employee works. The
hazard pay shall continue for the entire duration that the employee
Page 7 of 13 Doc ID: ca37a437e38f566005fb40813af03350f2b28f31
24-O-23
~8~
is required to work in any of the events described in subsection (a)-
(e).
(2) A Work Schedule change that is the result of a mutually agreed upon shift
trade or coverage arrangement between Employees, subject to any existing
Employer policy regarding required conditions for Employees to exchange shifts.
(3) An Employee requests a shift change that is confirmed in writing, including
but not limited to use of sick leave, vacation leave, or other policies offered by the
Employer.
(4) An Employer subtracts hours from a Work Schedule for disciplinary reasons
for just cause, provided the Employer documents the incident leading to the
Employee's discipline in writing.
(5) When Covered Employees Self-schedule.
3-34-6. OFFER OF ADDITIONAL WORK HOURS TO EXISTING EMPLOYEES.
(A) Subject to the limitations herein, before hiring new Employees or contract
Employees, including hiring through the use of temporary services or staffing
agencies, a Covered Employer shall first offer additional hours of work to existing
Part-time Employee(s) if the Part-time Employee(s) are qualified to do the additional
work, as reasonably and in good faith determined by the Covered Employer. This
Section requires Covered Employers to offer to Part-time Employees only up to the
number of hours required to give the Part-time Employee 35 hours of work in a
Calendar Week.
(B) A Covered Employer has discretion to divide the additional work hours among Part-
time Employees consistent with the Section provided that: (1) the Employer’s system
for distribution of hours must not discriminate on the basis of race, color, creed,
religion, ancestry, national origin, sex, sexual orientation, gender identity, disability,
age, marital or familial status, nor on the basis of family caregiving responsibilities or
status as a student; and (2) the Employer may not distribute hours in a manner
intended to avoid application of the Patient Protection and Affordable Care Act, 42
Y.S. C. SS 18001.
(C) A Part-time Employee may, but is not required to, accept the Covered Employer’s
offer of additional work under this Section.
Page 8 of 13 Doc ID: ca37a437e38f566005fb40813af03350f2b28f31
24-O-23
~9~
(1) For additional work for an expected duration of more than two weeks; the
Part-time Employee shall have 72 hours to accept the additional hours, after
which time the Covered Employer may hire new Employees to work the
additional hours.
(2) When the Covered Employer’s offer of additional work under this Section is
for an expected duration of two weeks or less; the Part-time Employee shall have
24 hours to accept the additional hours, after which time the Covered Employer
may hire new Employees to work the additional hours.
(3) The 24- or 72-hour periods referred to in this subsection begin either when
the Employee receives the written offer of additional hours, or when the Covered
Employer posts the offer of additional hours as described subsection (D),
whichever is sooner. A Part-time Employee who wishes to accept the additional
hours must do so in writing.
(D) When this Section requires a Covered Employer to offer additional hours to existing
Part-time Employees, the Covered Employer shall make the offer either in writing or
by posting the offer in a conspicuous location in the workplace where notices to
Employees are customarily posted. Covered Employers may post the notice
electronically on an internal website in a conspicuous location and which website is
readily accessible to all Employees. The notice shall include the total hours of work
being offered, the schedule of available shifts, whether those shifts will occur at the
same time each week, and the length of time the Covered Employer anticipates
requiring coverage of the additional hours, and the process by which Part-time
Employees may notify the Covered Employer of their desire to work the offered
hours.
3-34-7. RIGHT TO REST.
(A) An Employee has the right to decline work hours that occur within 11 hours of the
Employee’s last Shift, or
(B) An Employee who agrees in writing to work hours described in this Section shall be
compensated at one-and-a-half (1.5) times the Employee’s regular rate of pay for
any hours worked less than 11 hours following the end of a previous shift.
3-34-8. RIGHT TO REQUEST A FLEXIBLE WORKING ARRANGEMENT.
Page 9 of 13 Doc ID: ca37a437e38f566005fb40813af03350f2b28f31
24-O-23
~10~
An Employee has the right to request a modified Work Schedule, including, but not
limited, to additional shifts or hours; changes in days of work; changes in shift start and
end times; permission to exchange shifts with other employees; limitations on
availability; part-time employment; job sharing arrangements; reduction or change in
work duties; or part-year employment.
3-34-9. NOTICE AND POSTING.
(A) Every Employer shall post in a conspicuous place in each facility where any
Employee works that is located within the geographic boundaries of the City a notice
advising the Employees of their rights under this chapter. The City Manager shall
prepare and make available a form notice that satisfies the requirements of this
subsection (A).
(B) Every Employer shall provide with the first paycheck subject to this chapter a notice
advising the Employee of their rights under this chapter. The City Manager shall
prepare and make available a form notice that satisfies the requirements of this
subsection (B).
(C) All notices and postings that name individual Covered Employees shall comply with
Section 3-34-9.
3-34-10. RETALIATION PROHIBITED.
(A) It shall be unlawful for any Employer to discriminate in any manner or take any
adverse action against any Employee in retaliation for exercising any right under this
chapter, including, but not limited to, disclosing, reporting, or testifying about any
violation of this chapter or rules promulgated thereunder. For purposes of this
section, prohibited adverse actions include, but are not limited to, termination, denial
of promotion, negative evaluations, punitive schedule changes, punitive decreases
in the desirability of work assignments, and other acts of harassment shown to be
linked to such exercise of rights.
(B) A violation of this section shall subject the Employer to a $1,000.00 fine per
occurrence.
3-34-11. AVOIDANCE OF APPLICATION.
It shall be unlawful for an Employer to engage in any of the following to avoid coverage
under this chapter: (i) change a regular rate of pay, (ii) interfere with, restrain, deny, or
Page 10 of 13 Doc ID: ca37a437e38f566005fb40813af03350f2b28f31
24-O-23
~11~
change scheduled workdays or hours, or (iii) hire, rehire, terminate, or suspend, even
temporarily.
3-34-12. ENFORCEMENT – RULES.
The City shall administer and enforce this chapter and is authorized to adopt rules to
effectuate that administration and enforcement.
3-34-13. VIOLATION – PENALTY.
Any Employer who violates this chapter or any rule promulgated thereunder shall be
subject to a fine of not less than $300.00 nor more than $500.00 for each initial offense.
Each Employee whose rights are affected shall constitute a separate and distinct
offense to which a separate fine shall apply. Each day that a violation occurs shall
constitute a separate and distinct offense to which a separate increased fine amount
shall apply. The fine shall increase by $50 for each subsequent offense. Any
agreement between the Employee and Employer that would violate this chapter is no
defense to an enforcement action.
3-34-14. PRIVATE CAUSE OF ACTION.
(A) An employee may initiate a civil action in a court of competent jurisdiction, asserting
that they were subjected to a violation of this ordinance.
(B) Any claim or action filed under this ordinance must be made within two years of the
alleged conduct resulting in the complaint.
(C) An Employee who prevails in a civil action pursuant to this section shall be entitled
to an award of compensation for any damages sustained, including the payment of
Predictability Pay unlawfully withheld, as a result of the violation, including litigation
costs, expert witness fees, and reasonable attorney's fees.
3-34-15. NON-EXCLUSIVE REMEDY.
The remedies, fines, and procedures provided under this chapter are cumulative and
are not intended to be exclusive of any other available remedies, penalties, and
procedures established by law which may be pursued to address violations of this
chapter.
3-34-16. RETENTION OF RECORDS.
Page 11 of 13 Doc ID: ca37a437e38f566005fb40813af03350f2b28f31
24-O-23
~12~
Each Employer shall maintain for at least three years, or for the duration of any claim,
civil action, or investigation pending pursuant to this chapter, whichever is longer, a
record of each Employee's name, hours worked, pay rate, and records necessary to
demonstrate compliance with this chapter, including but not limited to good faith
estimates of Work Schedules, initial posted schedule and all subsequent changes to
that schedule, consent to work hours where such consent is required by this chapter,
and documentation of offers of hours of work to existing staff and responses to such
offers. Each Employer shall provide each Covered Employee a copy of the records
relating to such Covered Employee upon the Covered Employee's reasonable request.
3-34-17. ACCESS TO WORK SITE.
Each Employer shall permit access to work sites and relevant records for authorized
City representatives for the purpose of monitoring compliance with this chapter and
investigating Employee complaints of noncompliance, including production for
inspection and copying of its employment records.
3-34-18. NO PREEMPTION OF HIGHER STANDARDS.
The purpose of this Chapter is to ensure minimum labor standards. This Chapter does
not preempt or prevent the establishment of superior employment standards (including
higher wages) or the expansion of coverage by ordinance, resolution, contract, or any
other action of the City. This Chapter shall not be construed to limit a discharged
Employee’s right to bring a common law cause of action for wrongful termination.
3-34-19. SEVERABILITY.
If any provision of application of this Chapter is declared illegal, invalid or inoperative, in
whole or in part, by any court of competent jurisdiction, the remaining provisions and
portions thereof and applications not declared illegal, invalid or inoperative shall remain
in full force or effect. Nothing herein may be construed to impair any contractual
obligations of the City. This Chapter shall not be applied to the extent it will cause the
loss of any Federal or State funding of City activities.
SECTION 2: That the findings and recitals contained herein are declared
to be prima facie evidence of the law of the City and shall be received in evidence as
provided by the Illinois Complied Statues and the courts of the State of Illinois.
Page 12 of 13 Doc ID: ca37a437e38f566005fb40813af03350f2b28f31
24-O-23
~13~
SECTION 3: That all ordinances or parts of ordinances in conflict herewith
are hereby repealed.
SECTION 4: That this Ordinance 24-O-23 shall be in full force and effect
from and after September 1, 2023 in the manner provided by law.
SECTION 5: That if any provision of this Ordinance 24-O-23 or application
thereof to any person or circumstance is ruled unconstitutional or otherwise invalid,
such invalidity shall not affect other provisions or applications of this Ordinance 24-O-23
that can be given effect without the invalid application or provision, and each invalid
provision or invalid application of this Ordinance 24-O-23 is severable.
Introduced:_________________, 2023
Adopted:___________________, 2023
Approved:
__________________________, 2023
_______________________________
Daniel Biss, Mayor
Attest:
_______________________________
Stephanie Mendoza, City Clerk
Approved as to form:
______________________________
Nicholas E. Cummings, Corporation Counsel
May 22
May 1
Page 13 of 13 Doc ID: ca37a437e38f566005fb40813af03350f2b28f31
May 24