Federal Worker Adjustment and Retraining Notification Act Lawyer

The Federal Worker Adjustment and Retraining Notification Act, also known as the Federal WARN Act, provides employees protection from mass layoffs or plant closing. The purpose of the Act is to provide employees with written notice of the mass layoff or plant closing so that they can have a better opportunity of finding another job or at least be better prepared for the layoff.

For purposes of this section:

“Employer means any business enterprise that employs (A) 100 or more employees, excluding part-time employees, or (B) 100 or more employees who in the aggregate work at least 4,000 hours per week (exclusive of hours of overtime).” U.S. Code § 2101(a)(1).

“Plant closing means the permanent or temporary shutdown of a single site of employment, or one or more facilities or operating units within a single site of employment, if the shutdown results in an employment loss at the single site of employment during any 30 day period for 50 or more employees excluding any part-time employees.” U.S. Code § 2101(a)(2).

“Mass layoff means a reduction in force which (A) is not the result of a plant closing; and (B) results in an employment loss at the single site of the employment during any 30-day period for (i)(I) at least 33 percent of the employees (excluding any part-time employees); and (II) at least 50 employees (excluding any part-time employees) or (ii) at least 500 employees (excluding any part-time employees).” U.S. Code § 2101(a)(3).

Employees’ Rights

Under the Federal WARN Act, employers are required to provide employees with 60 days written notice. Such notice must be provided to (1) “each representative of the affected employees as of the time of the notice or, if there is no such representative at that time, to each affected employee” and (2) “to the State or entity designated by the State to carry out rapid response activities under section 2864(a)(2)(A) of this title, and the chief elected official of the unit of local government within which such closing or layoff is to occur.” If there is more than one State unit, “the employer shall notify the unit of local government to which the employer pays the highest taxes for the year preceding the year for which the determination is made”. 29 U.S. Code § 2102(a)(1-2).

How Does This Affect Employees’ Rights?

If an employer fails to provide notice as required by Section 2102, then the employer is “liable to each aggrieved employee who suffers an employment loss as a result of such closing or layoff for”:

  • • (A) “back pay for each day of violation at a rate of compensation not less than the higher of – (i) the average regular rate received by such employee during the last 3 years of the employee’s employment; or (ii) the final regular rate received by such employee.” 29 U.S. Code § 2104(a)(1)(A)
  • • (B) “benefits under an employee benefit plan described in section 1002 (3) of this title, including the cost of medical expenses incurred during the employment loss which would have been covered under an employee benefit plan if the employment loss had not occurred.” 29 U.S. Code § 2104(a)(1)(B)

The employer’s liability under this section is “calculated for the period of the violation, up to a maximum of 60 days, but in no event for more than one-half the number of days the employee was employed by the employer.” 29 U.S. Code § 2104(a).

In addition, under Section 29 U.S. Code § 2104, the court may allow the prevailing party for reasonable attorney’ fees.

For example: An employer is having some financial difficulties and as a result decides to lay off a large portion of his employees. At the time, the employer had 300 full time employees. The employer decides that in order to stay in business he or she will need to lay off 120 full time employees all at once. This would be considered a mass lay off for purposes of Section 29 U.S. Code § 2102 since it would meet the requirement that the layoff be of at least 50 full time employees and at least 33 percent of the full time employees during any 30 day period. In this scenario, the employer provides written notice to each of the employees, but only two weeks before the mass layoff. In this situation, the employer has failed to provide with proper notice. The notice requirement under Federal WARN Act is of 60 days written notice prior to the mass layoff. By failing to provide the proper notice the employer is likely in violation of this Act. If you find yourself in a similar situation where there was a mass layoff or a plant closing, contact our office.

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If you have been a part of a mass layoff or a plant closing and you have not been given appropriate notice, contact our lawyers.