Employer coverage
Employers with 100 or more employees are generally covered by WARN. This rule excludes workers with less than six months of service in the past year. It also excludes those who average less than 20 hours weekly. This includes private and non-profit businesses. Plus, it covers public and quasi-public entities with commercial operations. However, regular government agencies offering public services are not included.
Employee coverage
WARN notice applies to all employees, including hourly, salaried, and managers. However, business partners are not included.
Additional resources:
What triggers notice?
Plant Closing: An employer must give notice if shutting down an employment site will cause 50 or more employees to lose their jobs in 30 days. This excludes those who worked less than six months or fewer than 20 hours per week.
Mass Layoff: Similarly, notice is required for a mass layoff at an employment site. It affects 500 or more employees or 50-499 employees, making up over a third of the workforce. The same exceptions apply.
If job losses from two or more groups do not meet the above conditions, but together reach those levels in 90 days, notice is needed. This applies unless the employer proves the losses were due to separate actions or causes.
Sale of business
When a business sells part or all of itself, specific rules come into play. First, the employer must always provide notice. If the sale leads to a plant closing or mass layoff, parties involved must be warned at least 60 days ahead. The seller must report any such events up to the sale. After the sale, the buyer takes over this responsibility. If the sale doesn't trigger layoffs, no notice is needed. Also, most seller employees become the buyer's employees after the sale, ensuring their notice rights are upheld.
Employment loss
Employment loss includes:
- Losing a job, except for being fired for cause, quitting, or retiring
- Being laid off for over 6 months
- Having work hours cut by over 50% in each month for 6 months
Exceptions exist. For example, refusing a transfer to a nearby site doesn't count as a job loss. Also, accepting a transfer over 30 days after being offered, or after a plant closure or mass layoff, doesn't count. These exceptions require the offer before the closure or layoff, less than a 6-month break in employment, and no forced resignation in the new job. They only apply when the closure or layoff is due to the employer relocating or consolidating.
Exemptions
An employer doesn't need to warn employees if a temporary facility closes or a project ends. This applies if workers knew their jobs were temporary. Employers can't call an ongoing project "temporary" to dodge WARN.
During a strike or lockout equaling a plant closing or mass layoff, employers don't have to notify strikers or those in related bargaining units. However, non-striking employees affected directly or indirectly by the strike, and those not in the bargaining units, should receive notice.
Employers are exempt from giving notice if they permanently replace an "economic striker" under the National Labor Relations Act.
Who receives notice?
The employer must notify the chief elected officer of the workers' representative or bargaining agency. The notice should also go to unrepresented employees facing job loss. This includes those at risk of "bumping" or being displaced by others, provided the employer can identify them. If those employees cannot be identified, the employer must inform the current job holders. Even those who worked less than 6 months or under 20 hours a week must be notified. This is required, even if they don't meet the trigger levels. Additionally, the employer must inform the State dislocated worker unit and the local government's chief elected official.
Notification period
Before a shutdown or layoff, you must provide notice to everyone involved at least 60 days in advance. If the job cuts happen over several days, the same rule applies. Notices must be sent 60 days before each worker leaves. For unrepresented workers, the notice should be sent 60 days before their departure.
Exceptions to the 60-day rule
An employer must provide at least 60 days' notice before closing or laying off staff. However, they can use three exceptions. But, they must prove they meet the exception's conditions. Also, the employer should give the notice as soon as possible. The notice should include the reason for the shorter notice period and all necessary information.
This exception is to be narrowly construed. It covers cases where a company has sought new capital or business to stay open. Giving notice would ruin the opportunity to get the new capital or business. It only applies to plant closings.
This exception applies to closings and layoffs. They are caused by business circumstances that were not reasonably foreseeable when notice would have been required.
This applies where a closing or layoff is the direct result of a natural disaster, such as a flood, earthquake, drought or storm.
Form and content of notice
No specific notice form is needed. However, all notices must be written. You can use any method to ensure they're received 60 days before a layoff.
Notices must be clear. You can conditionally give notice based on a specific event. This event must be clear and lead to a layoff less than 60 days later.
The content of these notices is in section 639.7 of the WARN rules. If the closing or layoff dates are changed, more notice is required.
Record
Employers don't need a specific record. They use information from daily business practices and legal requirements. This helps them decide when to give notice, to whom, and how.
Penalties
An employer breaking WARN laws by closing a plant or laying off workers without proper notice must pay the affected employees. They owe back pay and benefits for up to 60 days. However, this amount can be reduced by the wages paid during the violation and any extra payments to the employees.
Similarly, failing to notify local government leads to a fine of up to $500 per day. Yet, this penalty is avoidable if the employer quickly compensates each affected employee within three weeks.
Enforcement
WARN requirements are enforced by U.S. district courts. Workers, employee reps, and local government units can sue alone or together. The court may grant the winning side a fair attorney's fee.
WARN Act
The Worker Adjustment and Retraining Notification (WARN) Act details are in Public Law 100-379 (29 U.S.C. 2101, et seq.). The Department of Labor issued its final rules on April 20, 1989, in the Federal Register (Vol. 54, No. 75) at 20 CFR Part 639.
For general questions, contact the U.S. Department of Labor, Employment and Training Administration, Office of National Response, Division of Worker Dislocation and Special Response.
200 Constitution Avenue, NW.
Room N-5422
Washington, DC 20210.
You can call 1-877-US2-JOBS (1-877-872-5627) or 202-693-3500. For TTY, dial 1-877-889-5627.
The Department of Labor does not offer individual advice or guidance on WARN Act compliance, as it has no enforcement role.
Additional Resources
Rapid Response Service Team – Regional Contacts
Statewide Supervisor – Nelson Diaz, ndiaz@pa.gov