The federal Worker Adjustment and Retraining Notification (WARN) Act helps ensure advance notice to workers in cases of qualified plant closings and mass layoffs. The U.S. Department of Labor has compliance assistance materials to help workers and employers understand their rights and responsibilities under the provisions of WARN. The WARN Act is located in the federal statutes, beginning at 29 U.S.C. §2101. The regulations governing WARN are located in the Code of Federal Regulations, beginning at 20 CFR §639.1.
A worker who is protected by WARN (see below) must receive a written notice 60 days before the date of a mass layoff or plant closing in the circumstances described below. If the worker’s employer does not give the worker the required notice, the worker may be able to seek damages for back pay and benefits for up to 60 days, depending on how many days’ notice the worker actually received.
Workers Protected by WARN
Workers are protected by WARN if their employer and job loss meet the following conditions:
• It is a business with 100 or more full-time workers (not counting workers who have less than 6 months on the job and workers who work less than 20 hours per week) or employs 100 or more workers who work at least a combined 4,000 hours a week, and is a private for-profit business, private non-profit organization, or quasi-public entity separately organized from the regular government.
• Workers protected by WARN may be hourly or salaried workers, including managerial and supervisory workers. A worker may be protected by WARN if their job loss occurs as part of:
o A plant closing—where their employer shuts down a facility or operating unit within a single site of employment and lays off at least 50 full-time workers;
o A mass layoff—where their employer lays off between 50 and 499 full-time workers at a single site of employment and that number is 33% or more of the number of full-time workers at the single site of employment; or a situation where their employer lays off 500 or more full-time workers at a single site of employment.
Employment Actions Covered by WARN
Some—but not all—employment actions are covered by WARN. A worker is entitled to WARN notice if the above conditions apply to the situation and the worker:
• Is terminated from employment, but not if the worker voluntarily quits, retires, or is discharged for cause;
• Is laid off for more than 6 months; or
• Has their regular hours of work reduced by more than half during each month of a 6-month period.
Workers Not Protected by WARN
A worker is not protected by the WARN Act if the worker is one of the following:
• Strikers, or workers who have been locked out in a labor dispute;
• Workers working on temporary projects or facilities of the business who clearly understand the temporary nature of the work when hired;
• Business partners, consultants, or contract workers assigned to the business but who have a separate employment relationship with another employer and are paid by that other employer, or who are self-employed; and
• Regular federal, state, or local government workers.
Notice is not required in certain cases involving transfers because the transfer is not considered an employment loss. If the employer offers the worker a transfer to a job within a reasonable commuting distance, the worker is not considered to have suffered an employment loss, whether or not the worker takes the job. If the employer offers the worker a job outside a reasonable commuting distance, the worker must accept the job within 30 days, or the worker is considered to have suffered an employment loss.
There are two other conditions to the transfer rule. One is that the offer of a transfer must be the result of a consolidation or transfer of the employer’s business. The other is that the offer must be made before the plant closing or mass layoff occurs. An offer of reassignment to a different site of employment would not be deemed to be a transfer if the new job constitutes a constructive discharge.
Receipt of Notice of a Layoff or Plant Closing
With some exceptions described later, workers must receive a written notice 60 calendar days before the layoff or plant closing. Workers are entitled to receive this notice even if they are a part-time worker or they work at another site and will lose their job due to this layoff or plant closing.
What the Notice Must Contain
The notice a worker receives from their employer must include the following information:
• An explanation of whether the layoff or closing is permanent or temporary (6 months or less);
• The date of layoff or closing and the date of the worker’s separation. The employer has some leeway in predicting the dates on which workers will be separated. The employer may give the worker notice that the worker will be separated within a two-week/14-day period after a certain date. If the employer chooses to use a two-week/14-day period, the employer must give the worker notice 60 days before the first day of the 14-day period.;
• An explanation of bumping rights, if they exist; and
• Name and contact information for a person in the company who can provide additional information.
There are two situations in which a worker may not receive an individual 60-day written notice from their employer even though WARN applies:
1. The first situation is when a union represents the worker. In that case, the employer must give 60 days’ written notice to the union. It is the union’s decision how and when to give the worker notice.
2. The second situation is when there is a complex system of bumping rights. This situation will not arise often since most complex seniority systems are created under collective bargaining agreements and the union is the party required to be notified. If there is a complex seniority/bumping system and no union is involved, the employer must make a good faith effort to determine who will actually lose their job as the result of the seniority system. But the employer is not required to predict exactly who will lose their job as a result of a complex bumping system. If the employer cannot predict exactly who will lose their job as a result of a complex bumping system, the employer must give notice to the person whose job is being eliminated even though that person may later bump another worker.