During this time of the COVID-19/Coronavirus pandemic, as employers struggle to make sense of the effects of the newly passed Emergency Family and Medical Leave Expansion Act and the Emergency Paid Sick Leave policies on their businesses, we want to remind employers that they may also be subject to a little-known law passed in 1988 known as the Worker Adjustment and Retraining Notification (WARN) Act.
OVERVIEW OF WARN ACT
The WARN Act requires employers with more than 100 full time employees (defined as those working an average of more than 20 hours per week) to provide employees 60 calendar-day advanced notice of plant closings and mass layoffs.
There are several exceptions to the 60-day notice requirement, one of which is unforeseeable business circumstances. When a closing or mass layoff is caused by business circumstances that were not reasonably foreseeable at the time that 60-day notice would have been required, employers must provide notice as soon as practicable and provide a statement of the reason for reducing the notice requirement. The regulatory language actually specifically addresses government closures like the ones we are seeing occurring as a result of COVID-19: “A government ordered closing of an employment site that occurs without prior notice may also be an unforeseeable business circumstance.” 20 C.F.R. §639.9 (b)(1).
WARN ACT CONTENTS
WARN Notices must contain the following:
- A statement as to whether the planned action is expected to be permanent or temporary and, if the entire plant is to be closed, a statement to that effect;
- The expected date when the plant closing or mass layoff will commence and the expected date when the individual employee will be separated;
- An indication as to whether or not bumping rights exist;
- The name and telephone number of a company official to contact for further information.
Not all employers are subject to the WARN Act, and short-term layoffs do not trigger the WARN notice. However, in these uncertain times it is impossible to forecast when businesses will be back and operating at full capacity. Failure to abide by the WARN Act may subject employers to lawsuits by affected employees.
Should you have questions about the applicability of the WARN Act on your business, or are considering layoffs during this time, please don’t hesitate to contact us at Monty and Ramirez, LLP.