For the notice requirement, A WARN notice is required when a business with 100 or more full-time workers (not counting workers who have less than 6 months on the job and workers who work fewer than 20 hours per week) is laying off at least 50 people at a single site of employment (see glossary and FAQs), or employs 100 or more workers who work at least a combined 4,000 hours per week, and is a private for-profit business, private non-profit organization, or quasi-public entity separately organized from regular government. See this Department of Labor Guide for more information.

You are covered under the WARN Act if you may experience 
employment loss. You may be an hourly and salaried workers, including managerial and supervisory employees and non-strikers. Covered employees include:

• Employees who are terminated or laid off for more than 6 months or who have their hours reduced 50% or more in any 6-month period as a result of the plant closing or mass layoff;

• Employees who may reasonably be expected to experience an employment loss as a result of a proposed plant closing or mass layoff. If the employer has a seniority system that involves bumping rights (see glossary and FAQs), the employer should use its best efforts to give notice to the workers who will actually lose their jobs as a result of the system. If that is not possible, then an employer must
give notice to the incumbent in the position being eliminated;

• Workers who are on temporary layoff but have a reasonable expectation of recall; this includes workers on workers’ compensation, medical, maternity, or other leave; and

• Part-time workers (see glossary). (These workers do not count when determining whether there has been a plant closing or mass layoff but they are entitled to receive WARN notice if there is one.)

Employees Not Covered Under WARN

The following employees are not protected under the WARN Act: 
• Strikers, or workers who have been locked out in a labor dispute;

• Workers working on temporary projects or facilities of the business who clearly understand the temporary nature of the work when hired;

• Business partners, consultants, or contract employees assigned to the business but who have a separate employment relationship with another employer and are paid by that other employer, or who are self-employed; and

Employees Not Counted Under WARN
When determining whether or not your company’s layoff or plant closing falls within the WARN requirements, the following employees are not counted:
• Part-time workers;
• Workers who retire, resign, or are terminated for cause;
• Workers who are offered a transfer to another site of employment
within a reasonable commuting distance (see FAQs) if:
– The closing or layoff is a result of a relocation or consolidation of
all or part of the employer’s business; and
– The transfer involves no more than a 6-month break in employment.
• Workers who are offered a transfer to another site of employment outside of a reasonable commuting distance if:
– The closing or layoff is a result of a relocation or consolidation of
all or part of the employer’s business;
– The transfer involves no more than a 6-month break in employment;
and
– The worker accepts the offer within 30 days of the offer or the closing or layoff, whichever is later.

• Regular federal, state, and local government employees.

WARN is triggered when a covered employer:

• Closes a facility or discontinues an operating unit (see glossary) permanently or temporarily, affecting at least 50 employees, not counting part-time workers, at a single site of employment. A plant closing also occurs when an employer closes an operating unit that has fewer than 50 workers but that closing also involves the layoff of enough other
workers to make the total number of layoffs 50 or more;

• Lays off 500 or more workers (not counting part-time workers) at a single site of employment during a 30-day period; or lays off 50-499 workers (not counting part-time workers), and these layoffs constitute 33% of the employer’s total active workforce (not counting part-time workers) at the single site of employment;

• Announces a temporary layoff of less than 6 months that meets either of the two criteria above and then decides to extend the layoff for more than 6 months. If the extension occurs for reasons that were not reasonably foreseeable at the time the layoff was originally announced, notice need only be given when the need for the extension becomes known. Any other case is treated as if notice was required for the original layoff; or

• Reduces the hours of work for 50 or more workers by 50% or more for each month in any 6-month period. Thus, a plant closing or mass layoff need not be permanent to trigger WARN.

Plant closing under WARN means the permanent or temporary shutdown of a single employment site, or one or more facilities or operating units within a site, which results in job loss or more than a 50% hours cut for at least 50 employees, not including part-time employees. WARN requires that employers provide notification 60 days in advance of plant closings and mass layoffs to workers.

A mass layoff occurs under the WARN Act when:

• at least 50 employees are laid off during a 30-day period, if the laid-off employees made up at least one third of the workforce;
• 500 employees are laid off during a 30-day period, no matter how large the workforce; or
• an entire work site is closed down and at least 50 employees are laid off during a 30-day period; or
• the mass layoff is not the result of a plant closing.

For purposes of triggering events under the WARN Act, “employment loss” means:

• an employment termination, other than a discharge for cause, voluntary departure or retirement;
• a layoff exceeding 6 months; or
• a reduction in an employee’s hours of work of more than 50% in each month in any 6 month period.

Employment Loss Exceptions 

An employer does not need to give notice when permanently replacing a person who is an economic striker as defined under the National Labor Relations Act.

If an employer offers to transfer a worker to another location, the following rules apply:

• An employee who is offered a transfer to a different employment site within a reasonable commuting distance does not experience an employment loss whether the employee accepts the offer or not.
• An employee who accepts a transfer outside a reasonable commuting distance within 30 days after it is offered or within 30 days of the plant closing or mass layoff, which ever is later, does not experience an employment loss.
• In both cases, the transfer offer must be made before the closing or layoff, there must be no more than a six-month break in employment and the new job must not be deemed a constructive discharge.

These transfer exceptions from the “employment loss” definition apply only if the closing or layoff results from the relocation or consolidation of part or all of the employer’s business.

See the Department of Labor website for more information.

The WARN Act requires employers with 100 or more full-time employees (not counting workers who have fewer than 6 months on the job) to provide at least 60 calendar days advance written notice of a worksite closing affecting 50 or more employees, or a mass layoff affecting at least 50
employees and 1/3 of the worksite’s total workforce or 500 or more employees at the single site of employment during any 90-day period.

Not all dislocations require a 60-day notice; the WARN Act
makes certain exceptions to the requirements when employers can show that layoffs or worksite closings occur due to faltering companies, unforeseen business circumstances, and natural disasters. In such instances, the WARN Act requires employers to provide as much notice to their employees as possible.

It is very important that you receive written notice of your impending job loss. Verbal announcements by your employer, pre-printed notices included with your paycheck, and/or company press releases do not count as notice.

Yes. The exceptions to 60-day notice are:

Faltering company: The faltering company exception covers situations where a company has sought new capital or business in order to stay open and where giving notice would ruin the opportunity to get the new capital or business. This applies only to plant closings;

Unforeseeable business circumstances: This exception applies to closings and layoffs that are caused by business circumstances that were not reasonably foreseeable at the time notice would otherwise have been required; and

Natural disaster: This applies where a closing or layoff is the direct result of a natural disaster, such as a flood, earthquake, drought or storm.

If an employer provides less than 60 days notice of a closing or layoff and relies on one of these three exceptions, the employer must prove that the conditions for the exception have been met.

Nonetheless, notice must always be provided as soon as it is practicable. When notice is given in less than the 60-day timeframe, the employer must include a statement of the reason for providing less than 60 days’ notice in addition to fulfilling the other information notice requirements.

With some exceptions, you must receive a written notice 60
calendar days before the layoff or plant closing. You are entitled to receive this notice even if you are a part-time worker or you
work at another site and will lose your job due to this layoff or plant closing.

The second situation is when there is a complex system of bumping rights. In a seniority system, the rights of workers with greater seniority whose jobs are abolished to replace (bump) workers with less seniority so that the worker who ultimately loses his/her job is not the worker whose job was abolished.

The notice must contain the following information:

• An explanation of whether the layoff or closing is permanent or temporary, meaning 6 months or less;
• The date of layoff or closing and the date of your separation. If your employer gives you notice that you will be separated within a two week period, they are required to give notice 60 days before that period;
• An explanation of bumping rights, if they exist; and
• Name and contact information for a person in the company who can provide additional information.

All notices must be in writing. Any reasonable method of delivery designed to ensure receipt 60 days before a closing or layoff is acceptable.

No, an employer does not need to give notice if a plant closing is the closing of a temporary facility, or if the closing or mass layoff is the result of the completion of a particular project or undertaking. This exemption applies only if the workers were hired with the understanding that their employment was limited to the duration of the facility, project or undertaking. An employer cannot label an ongoing project “temporary” in order to evade its obligations under the WARN Act.

A temporary layoff of six months or less is not an “employment loss” under WARN. But a plant closing or mass layoff that is intended to be temporary will trigger WARN obligations if it later turns out to exceed six months.

When a business is sold, there is a technical termination of employment, even if you continue working the same job for the new employer. WARN does not count that technical termination as an employment loss if you keep your job. Effectively, when a sale occurs, an employee of the seller company (excluding part-time employees) automatically becomes an employee of the buyer company for WARN purposes.

This also means that if there is an actual termination of employment (or a layoff of more than six months) for enough workers to require WARN notice, someone, either the seller or the buyer, is responsible for giving that notice. Who is responsible is determined by when the termination or layoff takes place. If the termination or layoff takes place before the sale is made, the seller is responsible to give notice; if the termination or layoff occurs after the sale is made, the buyer is responsible.

The job that you get from the new employer, the buyer, does not have to be the same job at the same wages and working conditions that you had with your previous employer, the seller. As long as the wages or working conditions are not so bad as to be considered a constructive discharge, changes in your job are not a reason for you to have suffered an employment loss. The definition of what constitutes a constructive discharge varies from state to state, but basically, it means a change in wages or working conditions that is so drastic and that is so onerous on the worker that the worker can reasonably consider him/herself to have been fired or forced to quit work.

The job with the new employer does not have to start immediately. As long as the job starts within 6 months of the sale, no employment loss is considered to have occurred.

Yes. The legal definition of “employment loss” in the WARN Act includes a reduction in an employee’s hours of work of more than 50% in each month of any 6-month period.

If an employer offers to transfer a worker to another location, the following rules apply:

• • An employee who is offered a transfer to a different employment site within a reasonable commuting distance does not experience an employment loss whether the employee accepts the offer or not.
  • An employee who accepts a transfer outside a reasonable commuting distance within 30 days after it is offered or within 30 days of the plant closing or mass layoff, which ever is later, does not experience an employment loss.
  • In both cases, the transfer offer must be made before the closing or layoff, there must be no more than a six-month break in employment and the new job must not be deemed a constructive discharge.
  • These transfer exceptions from the “employment loss” definition apply only if the closing or layoff results from the relocation or consolidation of part or all of the employer’s business.

Employee protections under the WARN Act apply to those who suffer an employment loss. A layoff or furlough that is temporary may not be an employment loss for WARN Act purposes. Under the Act, an employee who is laid off does not suffer an employment loss unless the layoff extends beyond a consecutive six-month period. Therefore, a temporary layoff of 6 months or less does not trigger the need for the employer to issue a WARN Act notice.

However, if the layoff lasts for more than a consecutive six-month period, employees would be considered to have experienced an employment loss and would have been entitled to notice before the layoff unless it was not reasonably foreseeable at the time of the initial layoff that the layoff would extend beyond six months. If a layoff is extended beyond a consecutive six-month period due to business circumstances, notice is required when it becomes reasonably foreseeable that the extension is required.

Temporary employees are typically included, while part-time employees (those employed for fewer than six months or working on average fewer than 20 hours per week in the last 90 days) are typically excluded.

No. discussed earlier, all notices must be in writing. A verbal announcement at an all-employees’ meeting, or smaller employees/supervisor staff meeting does not meet the WARN Act requirements.

If you work a regular schedule of 20 hours or more each week and have worked for your employer for more than 6 of the last 12 months, you are a full-time worker. If you work a varying schedule, you determine whether you work an average of fewer than 20 hours by looking at:

• The period since you became employed, if your total period of employment is less than 90 days; or
• The most recent 90 days.

Overtime is not included in this determination. See The Worker Adjustment and Retraining Notification (WARN) Act Guide to Advance Notice of Closings and Layoffs for examples.

United States Federal courts are responsible for enforcing WARN. Workers, representatives of employees, and units of local government may bring individual or class action suits.

An employer who violates the WARN provisions by ordering a plant closing or mass layoff without providing appropriate notice is liable to each aggrieved employee for an amount including back pay and benefits for the period of violation, up to 60 days. The employer’s liability may be reduced by such items as wages paid by the employer to the employee during the period of the violation and voluntary and unconditional payments made by the employer to the employee.

An employer who fails to provide notice as required to a unit of local government is subject to a civil penalty not to exceed $500 for each day of violation. This penalty may be avoided if the employer pays each affected employee within 3 weeks after the closing or layoff is ordered by the employer.

If you think that you have a claim under the WARN Act, contact an attorney right away. Although it varies from state to state, there are strict time limits in which claims under the WARN Act must be filed. It is very important to check your state laws to determine the statute of limitations for your claim; these can vary from a few months to a few years.

As you might have other legal claims with shorter deadlines, do not wait to file your claim until your time limit is close to expiring!