Under the federal Worker
Adjustment and Retraining Notification Act—commonly known as WARN— employers
with 100 or more employees have to give employees 60 days’ advance notice of a
mass layoff. A covered employer that doesn’t give the required notice must
instead pay the employees for the notice period.
A new ruling puts some
limits on when WARN applies, and we’ll tell you all about it. We’ll also give you
some tips for complying with WARN and its
Join us this fall in San Francisco for the California Employment Law Update conference, a 3-day event that will teach you everything you need to know about new laws and regulations, and your compliance obligations, for the year ahead—it’s one-stop shopping at its best.
Security Workers Laid Off
Security Services provided security services at
of September 11, Congress enacted a law federalizing— taking over—airport
security in the
A few months later, Globe notified its employees about how to apply for a
position with the federal Transportation Security Administration.
While that process was
under way, Globe announced a series of layoffs to prepare for the government takeover
of airport screening services. The layoffs began a few days later.
A group of Globe
employees filed a class action suit. The employees claimed that Globe violated
WARN by not giving them the required 60 days’ notice. Globe argued that WARN
doesn’t apply in the context of government- ordered closures over which the
employer has no control. A trial court dismissed the case, and the employees
appealed.
WARN Notice Not Required
The U.S. Ninth Circuit
Court of Appeals has affirmed the dismissal. WARN states that an “employer
shall not order a plant closing or mass layoff until the end of a 60-day period
after the employer serves written notice” of the order. According to the court,
this wording unambiguously means that WARN applies when an employer orders a
mass layoff.
In this case, however,
the layoffs were the result of the federal government’s replacing screeners
with federal employees. Thus, it was the government, not Globe, that ordered
the employees out of work at the airport—so WARN didn’t apply.
Compliance Tips
An employer that
violates WARN or Cal/WARN is liable to each employee for an amount equal to back
pay and benefits for the period of the violation, up to 60 days. This may be
reduced by any voluntary payments the employer made to the employee. You can also
be hit with civil penalties of $500 for each day of the violation, plus
attorney’s fees. Here are some WARN and
compliance guidelines:
1. Determine if you’re
covered. Covered
employers under WARN are those with 100 or more employees—but not counting
employees who have worked less than 6 months in the last 12 months or who work
an average of less than 20 hours a week.
applies to industrial or commercial facilities employing 75 or more workers
within the past 12 months.
2. Evaluate if the
layoff is covered. WARN is triggered by mass layoffs involving 500 employees or at least
33 percent of the workforce in a 30-day period or plant shutdowns displacing 50
or more employees during a 30-day period. Cal/WARN is triggered by a mass layoff
of 50 or more employees during any 30-day period or by a plant closing or
relocation that affects all or substantially all workers at the facility.
3. Provide timely
notice. Under
WARN and Cal/WARN, employers must provide written notice of the layoff or
closing to the affected employees (including managers and supervisors, as well
as hourly and salaried workers); the California Employment Development Department;
the local workforce investment board; and the chief elected official of each
city and county government where the layoff occurs.
For more information,
check out the U.S. Department of Labor’s WARN guide for employers at www.doleta.gov/layoff/pdf/EmployerWARN09_2003.pdf.
Information on
is available at www.edd.ca.gov/eddwarn.htm.
_
1 Deveraturda v. Globe
Airport Security Services Inc., U.S.C.A. 9th Cir. No. 04-16633, 2006