Delaware’s new state law requiring private-sector employers to provide 60 days’ advance notice of a mass layoff, plant closing, or relocation to affected employees and government officials is set to take effect January 7, 2019.
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The new law, known as the Delaware Worker Adjustment and Retraining Notification Act (Delaware WARN Act), mirrors the federal WARN Act in many respects, but Delaware’s law differs from the federal law in four critical ways.
- The Delaware WARN Act has a lower “total employee” threshold triggering its requirements than the federal WARN Act. The federal law applies to employers with 100 or more full-time employees or 100 or more employees who work at least a combined 4,000 hours per week (excluding overtime). The Delaware law also applies to employers with 100 or more full-time employees, but it covers employers of 100 or more employees (including part-timers) who work at least a combined 2,000 hours per week.
- The Delaware WARN Act requires that employers give advance notice of a “relocation,” which isn’t an event that triggers notice requirements under the federal WARN Act. The term “relocation” is defined as the removal of all or substantially all an employer’s industrial or commercial operations to a different location 50 miles or more away that results in a layoff.
- The Delaware WARN Act contains broader notice requirements than the federal law. Under both laws, an employer must provide the required written notice to affected employees and their unions, the state dislocated worker unit (i.e., the Delaware Department of Labor’s (DDOL) Division of Employment and Training), and the chief elected official of the unit of local government in which the closing or layoff is to occur. The state law goes on to require notice to the Delaware Workforce Development Board for the locality in which the mass layoff, plant closing, or relocation will occur. The state law also requires that employers include in the written notice general information about any payouts, severance packages, job relocation opportunities, and retirement options that will be offered to the displaced workers, and whether they are self-insured for workers’ compensation purposes.
- Under federal law, affected employees may file claims for alleged noncompliance in federal court. The state law grants the DDOL the ability to promulgate rules with “provisions that allow the parties access to administrative hearings for any actions of the Department under this [Act].” Also, the DDOL has broad authority to “examine any information of an employer” in connection with any investigation or proceeding under the Act to determine whether a violation occurred.
For more information on the Delaware WARN Act, see the September issue of Delaware Employment Law Letter.
Scott A. Holt is an attorney with Young Conaway Stargatt & Taylor, LLP in Wilmington, Delaware. Heis also an Editor for the Delaware Employment Law Letter and can be reached at sholt@ycst.com.