In recent weeks we have received numerous calls related to various employment issues involving the latest coronavirus, COVID-19. Issues range from wage and hour to safety. This article will focus on the Worker Adjustment and Retraining Notification Act (“WARN”), 29 U.S.C. §2101 et seq.
WARN requires, with some exceptions, sixty days advance written notice before a plant closing or mass layoff at any single site. Liability for noncompliance may include pay and benefits for 60 days, penalties, and attorneys’ fees. Exceptions include unforeseeable business circumstances, faltering companies, and natural disasters. It is currently unclear whether a pandemic like COVID-19 would qualify under the natural disaster category, but it would certainly make sense if it did. Even if the pandemic qualifies as a natural disaster, employers must give “as much notice as is practicable” (even retroactively), and they must state why they were unable to give notice earlier. Sperry Law has reached out to the Department of Labor for a more definitive answer, and we will update you if and when we receive any further guidance.
Employers covered by the notice provisions of the Act are those with 100 or more full-time employees. Employers are also covered if they have 100 or more full- and/or part-time workers working more than 4,000 straight-time hours per week. The Act does not specify the period over which the 4,000-hour coverage test should be applied.
A plant closing is defined as a closure of an entire single site of employment, which results in fifty or more full-time employees losing their jobs within any 30- or 90- day period. The definition is also met when an employer closes a building, distinct product line, operation, or specific work product within a single site, which results in the loss of fifty or more full-time employees within any 30- or 90-day period.
A covered employer must provide notice if it will conduct a layoff resulting in a job loss at a single site during any 30-day period of 500 or more employees, or of 50-499 employees if that number equals 33% or more of your client’s active workforce. A job loss under WARN includes a layoff of six months or more.
As with plant closings, employers must also give notice even if they do not meet the criteria above, if the number of laid off workers for two or more groups reaches the threshold level during any 90-day period and the layoffs resulted from the same or similar actions and causes.
Our advice is to give as much advance notice as you possibly can if you are a covered employer who foresees a plant closing or mass layoff. If you have any questions, please feel free to contact us.