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THE WORKER ADJUSTMENT AND RETRAINING NOTIFICATION ACT (WARN)
A Guide To Advance Notice Of Closings And Layoffs
This guide is intended only to present a brief overview describing
the principal provisions of the Worker Adjustment and Retraining
Notification Act (WARN) Public Law 100-379 (29 U.S.C. 2101, et seq.)
It is not an official statement of interpretation of WARN or of the
regulations adopted by the Employment and Training Administration of
the U. S. Department of Labor. The regulations appear at 20 CFR Part
The Worker Adjustment and Retraining Notification Act (WARN) was
enacted on August 4, 1988 and became effective on February 4, 1989.
WARN offers protection to workers, their families and communities by
requiring employers to provide notice 60 days in advance of covered
plant closings and covered mass layoffs. This notice must be
provided to either affected workers or their representatives (e.g. a
labor union); to the State dislocated worker unit; and to the
appropriate unit of local government.
In general, employers are covered by WARN if they have 100 or more
employees, not counting employees who have worked less than 6 months
in the last 12 months and not counting employees who work an average
of less than 20 hours per week. Private, for-profit employers and
private, nonprofit employers are covered, as are public and quasi-
public entities which operate in a commercial context and are
separately organized from the regular government. Regular Federal,
State, and local government entities which provide public services
are not covered.
Employees entitled to notice under WARN include hourly and salaried
workers, as well as managerial and supervisory employees. Business
partners are not entitled to notice.
WHAT TRIGGERS NOTICE
Plant Closing: A covered employer must give notice if an employment
site (or one or more facilities or operating units within an
employment site) will be shut down, and the shutdown will result in
an employment loss (as defined later) for 50 or more employees during
any 30-day period. This does not count employees who have worked less
than 6 months in the last 12 months or employees who work an average
of less than 20 hours a week for that employer. These latter groups,
however, are entitled to notice (discussed later).
Mass Layoff: A covered employer must give notice if there is to be a
mass layoff which does not result from a plant closing, but which
will result in an employment loss at the employment site during any
30-day period for 500 or more employees, or for 50-499 employees if
they make up at least 33% of the employer's active workforce. Again,
this does not count employees who have worked less than 6 months in
the last 12 months or employees who work an average of less than 20
hours a week for that employer. These latter groups, however, are
entitled to notice (discussed later).
An employer also must give notice if the number of employment losses
which occur during a 30-day period fails to meet the threshold
requirements of a plant closing or mass layoff, but the number of
employment losses for two or more groups of workers, each of which is
less than the minimum number needed to trigger notice reaches the
threshold level, during any 90-day period, of either a plant closing
or mass layoff. Job losses within any 90-day period will count
together toward the WARN threshold levels, unless the employer
demonstrates that the employment losses during the 90-day period are
the result of separate and distinct actions and causes.
SALE OF BUSINESSES
In a situation involving the sale of part or all of a business, the
following requirements apply. (1) In each situation, there is always
an employer responsible for giving notice. (2) If the sale by a
covered employer results in a covered plant closing or mass layoff,
the required parties (discussed later) must receive at least 60 days
notice. (3) The seller is responsible for providing notice of any
covered plant closing or mass layoff which occurs up to and including
the date/time of the sale. (4) The buyer is responsible for
providing notice of any covered plant closing or mass layoff which
occurs after the date/time of the sale. (5) No notice is required if
the sale does not result in a covered plant closing or mass layoff.
(6) Employees of the seller (other than employees who have worked
less than 6 months in the last 12 months or employees who work an
average of less than 20 hours a week) on the date/time of the sale
become, for purposes of WARN, employees of the buyer immediately
following the sale. This provision preserves the notice rights of
the employees of a business that has been sold.
The term "employment loss" means
(1) An employment termination, other than a discharge for cause,
voluntary departure, or retirement; (2) a layoff exceeding 6 months;
or (3) a reduction in an employee's hours of work of more than 50% in
each month of any 6-month period.
Exceptions to definitions of employment loss: An employee who
refuses a transfer to a different employment site within reasonable
commuting distance does not experience an employment loss. An
employee who accepts a transfer outside this distance within 30 days
after it is offered or within 30 days after the plant closing or mass
layoff, whichever is later, does not experience an employment loss.
In both cases , the transfer offer must be made before the closing or
layoff, there must be no more than a 6-month break in employment, and
the new job must not be deemed a constructive discharge. These
transfer exceptions from the "employment loss" definition apply only
if the closing or layoff results from the relocation or consolidation
of part or all of the employer's business.
WHO MUST RECEIVE NOTICE
The employer must give written notice to the chief elected officer of
the exclusive representative(s) or bargaining agent(s) of affected
employees and to unrepresented individual workers who may reasonably
be expected to experience an employment loss. This includes
employees who may lose their employment due to "bumping," or
displacement by other workers to the extent that the employer can
identify those employees when notice is given. If an employer cannot
identify employees who may lose their jobs through bumping
procedures, the employer must provide notice to the incumbents in the
jobs which are being eliminated. Employees who have worked less than
6 months in the last 12 months and employees who work an average of
less than 20 hours a week are due notice, even though they are not
counted when determining the trigger levels.
The employer must also provide notice to State dislocated worker unit
and to the chief elected official of the unit of local government in
which the employment site is located.
With 3 exceptions, notice must be timed to reach the required parties
at least 60 days before a closing or layoff. When the individual
employment separations for a closing or layoff occur on more than one
day, the notices are due to the representative(s), State dislocated
worker unit and local government at least 60 days before each
separation. If the workers are not represented, each worker's notice
is due at least 60 days before that worker's separation.
The exceptions to 60-day notice are:
(1) Faltering company. This exception, to be narrowly construed,
covers situations where a company has sought new capital, or business
in order to stay open and where giving notice would ruin the
opportunity to get the new capital or business and applies only to
plant closings; (2) Unforeseeable business circumstances. This
exception applies to closings and layoffs that are caused by business
circumstances that were not reasonably foreseeable at the time notice
would otherwise have been required; and (3) Natural disaster. This
applies where a closing or layoff is the direct result of a natural
disaster, such as a flood, earthquake, drought or storm.
If an employer provides less than 60 days' advance notice of a
closing or layoff and relies on one of these three exceptions, the
employer bears the burden of proof that the conditions for the
exception have been met. The employer must also give as much notices
as is practicable. When the notices are given, they must include a
brief statement of the reason for reducing the notice period in
addition to the items required in notices.
FORM AND CONTENT OF NOTICE
No particular form of notice is required. However, all notices must
be in writing. Any reasonable method of delivery designed to ensure
receipt 60 days before a closing or layoff is acceptable.
Notice must be specific. Notice may be given conditionally upon the
occurrence or non-occurrence of an event only when the event is
definite and its occurrence or nonoccurrence will result in a covered
employment action less than 60 days after the event.
The content of the notices to the required parties is listed in
section 639.7 of the WARN final regulations. Additional notice is
required when the date(s) or 14-day period(s) for a planned plant
closing or mass layoff are extended beyond the date(s) or 14-day
period(s) announced in the original notice.
No particular form of record is required. The information employers
will use to determine whether, to whom, and when they must give
notice is information that employers usually keep in ordinary
business practices and in complying with other laws and regulations.
An employer who violates the WARN provision by ordering a plant
closing or mass layoff without providing appropriate notice is liable
to each aggrieved employee for an amount including back pay and
benefits for the period of violation, up to 60 days. The employer's
liability may be reduced by such items as wages paid by the employer
to the employee during the period of the violation and voluntary and
unconditional payments made by the employer to the employee.
An employer who fails to provide notice as required to a unit of
local government is subject to a civil penalty not to exceed $500.00
for each day of violation. This penalty may be avoided if the
employer satisfies the liability to each aggrieved employee within 3
weeks after the closing or layoff is ordered by the employer.
Enforcement of WARN requirements is through the United States
district courts. Workers, representatives of employees and units of
local government may bring individual or class action suits. In any
suit, the court, in its discretion, may allow the prevailing party a
reasonable attorney's fee as part of the costs.
Specific requirements of the Worker Adjustment and Retraining
Notification Act may be found in the Act itself, Public Law 100-279
(29 U.S.C. 2101, et seq.) The Department of Labor published final
regulations on April 20, 1989 in the FEDERAL REGISTER (Vol. 54, No.
75). The regulations appear at 20 CFR Part 639.
General Questions on the regulations may be addressed to:
U. S. Department of Labor
Employment and Training Administration
Office of Work-Based Learning Room N-4703
200 Constitution Avenue, N.W.
Washington, DC 20210
The Department of Labor, since it has no administrative or
enforcement responsibility under WARN, cannot provide specific advice
or guidance with respect to individual situations.
from U. S. Department of Labor
Employment and Training Administration
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