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Labor Department Clarifies the WARN Act Still In Place During Coronavirus Pandemic


As some readers might be aware, the Worker Adjustment and Retraining Notification Act (“WARN Act”) sets out specific steps that certain employers must take when they are going to lay off a set number of workers or close a plant.  Generally speaking, an employer with 100 or more employees is required to give 60 days notice when closing a plant or engaging in a mass layoff that will last more than 6 months.  For employers with 50 employees, advance notice can be required if entire departments are laid off.

Salaried workers are entitled to notice under the WARN Act and count toward the employee threshold.  Part time workers with less than 6 months of employment are not counted toward the threshold but are entitled to notice.  Temporary workers are not entitled to notice but are counted toward the threshold.

In a FAQ published by the Labor Department, it was clarified that the WARN Act still applies during the coronavirus pandemic.  Of note, there are two exceptions that still apply to the 60 day notice requirement:  the faltering business exception and the unforeseeable business circumstances exception.  When the coronavirus initially started to become known in the U.S. several months ago, I think many employers could likely have met one of these two exceptions.  However, with the coronavirus now a part of daily life for most, I think it will start to get tougher for employers to claim one of these two exceptions to avoid the WARN Act notice requirement.

The Labor Department has clarified it will not offer individual assessment of whether the WARN Act notice requirement applies.  Rather, with each matter being evaluated on a case by case basis, the Labor Department says each matter would be determined by a private right of action.  It will be interesting to see if/how many disputes arise over the coming weeks and months in regard to the WARN Act notice requirement.

For additional information:  https://www.dol.gov/sites/dolgov/files/ETA/Layoff/pdfs/WARN%20FAQ%20for%20COVID19.pdf

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