The ABCs of the WARN Act - ABA YLD 101 Practice Series

By David R. Keene, II

The federal Worker Adjustment and Retraining Notification Act ("WARN" or the "Act"), 29 U.S.C. §2101 et seq., creates loss of job notification obligations for employers with at least 100 employees. In the event of a plant closing or mass layoff, the employer must provide written warning to affected employees and certain governmental officials and entities at least 60 calendar days prior to the closing or layoff.

Definitions under WARN
The Act provides express definitions of its key terms. It is important that the practitioner fully understand these definitions, to avoid violating the Act and exposing the client to substantial liability.

  • Employees - Persons who have worked less than six months in the last twelve, and persons who work an average of less than 20 hours a week, are not employees. All other persons are employees.
  • Employers - Private for- and non-profit businesses are employers.
  • Notice - A written warning provided to the affected employees, their union (if there is one), the State Dislocated Worker Unit, and the chief elected official of the local government where the plant closing or mass layoff is to occur.

    The notice to employees must be written in plain, understandable language, and must state: (1) whether the action is expected to be permanent or temporary, and whether the entire plant is to be closed; (2) the expected start date of the action, and the individual employee’s expected date of separation; (3) whether seniority rights exist; and (4) the name and telephone number of a company official to contact for further information. The notice to the State Dislocated Worker Unit and to the chief local elected official has different requirements.
  • Plant closing - An action which results in an employment loss for at least 50 or more employees at a single site or one or more facilities or operating units within a single site within a 30 day period.
  • Employment loss - Either: (1) a layoff of more than six months; (2) a termination (excluding terminations for cause, resignations, or retirement); or (3) the reduction of work hours by more than 50% during each month of any six month period.
  • Mass layoff - A layoff at a single site of employment where at least 33% of the workforce and at least 50 employees are laid off for six months or more.

An employer who violates the Act is liable to each affected employee for damages, including back pay and benefits, for the period of violation, up to 60 days. The employer's liability is reduced by the amount of wages and benefits, if any, paid to the employee during the period of violation. An employer who fails to provide notice to proper governmental entities is subject to a civil penalty not to exceed $500 for each day of violation.
The Act provides three exceptions to the 60-day notice requirement, for: (1) a faltering company; (2) unforeseeable business circumstances; or (3) a natural disaster. The faltering company exemption applies only to plant closings. The unforeseeable business circumstances exception applies to closings and layoffs that are caused by business circumstances that were not reasonably foreseeable at the time notice would have been required. The natural disaster exemption applies where a closing or layoff is the direct result of a natural disaster, such as an earthquake.

If an employer provides less than 60 days advance notice of a closing or layoff under one of these exceptions, it bears the burden of proving that the exception is satisfied. The employer also must still give as much notice as is practicable.

The Act does not apply where a closing is the closing of a temporary facility, or if the closing or mass layoff is the result of the completion of a particular project or undertaking. However, an employer cannot label a project "temporary" to evade its obligations under WARN.


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About the Author

David R. Keene, II, is an attorney with Baker Donelson Bearman Caldwell & Berkowitz, P.C., in the firm's Johnson City, TN, and Washington, D.C. offices. Licensed in Tennessee, Virginia, and the District of Columbia, he practices labor and employment law, representing management exclusively.

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