The Federal WARN Act – Who is Covered?

During the COVID-19 pandemic, many employers have been forced to make the difficult determination to terminate or furlough employees in order for their businesses to survive. However, what many employers do not completely understand is that they have responsibilities under the Federal WARN Act which regulate their layoff or plant closing.

The WARN Act requires that employers with one hundred (100) or more full-time employees give sixty (60) days advanced notice of a plant closing or any mass layoff.  Under the WARN Act, an event which would trigger the employer’s responsibility for advanced notice would be:

    1. During a thirty-day period, the employer closes a facility or discontinues an operating unit and fifty (50) or more full-time workers suffer an employment loss;
    2. If the employer has a reduction in workforce which results in the employment loss for 50-499 full-time workers and these workers compromise at least one third of the total workforce at a single site of the employer; or
    3. The employer has a reduction in force that results in an employment loss for 500 or more full-time workers at a single site of employment.

Even if the employer does not take part in a mass layoff, they may still be subject to the requirements of the WARN Act and be required to provide the sixty days’ notice if, over the course of three months (90 days), the employer has a series of smaller layoffs which by themselves, do not reach the threshold of a plant closing or mass layoff, but collectively equate to the numbers required to provide Notice under the WARN Act.

However, the WARN Act provides for an exemption for employers if they can show that the individual events which otherwise would lead to a WARN requirement were occurring not as an attempt to evade the WARN requirements, but as a result of separate and distinct actions and cases unrelated to one another.  If the employer can adequately prove that each action is disjointed, the WARN Act requirements may not apply.  If they do apply, the WARN Act has several requirements which outline the written warning that the employer must provide.

If you are an employer who may need to reduce workforce, and have questions regarding the WARN Act, please contact the experienced employment lawyers at Harlow, Adams & Friedman, P.C. today at 203-878-0661 for a free consultation.

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