Generally, WARN Act notice requirements apply to employers of 50 or more full-time employees. A WARN Act covered employer is one that employs:

• 50 or more employees (not counting employees who are part-time; see below for more information on who is considered part-time); or
• 50 or more employees (including part-time employees) who, in the aggregate, work at least 2,000 hours per week (including overtime hours earned on a regular basis).

A “part-time” employee for WARN Act coverage is someone who is employed for an average of fewer than twenty (20) hours per week or who has been employed for fewer than six (6) of the twelve (12) months preceding the date on which notice is required.

The WARN Act notice requirements apply to private for-profit businesses, nonprofit organizations, and public service corporations (when the corporation is organized separately from regular government).

• The WARN Act covers hourly and salaried workers, as well as managerial and supervisory employees. Business partners are not covered and therefore not entitled to notice under the Act.

If you have worked less than 6 months in the last 12 months or worked an average of less than 20 hours a week, you are entitled to receive notice, but you will not be counted when determining whether the WARN Act applies to your employer.

You are not protected by the WARN Act if you are considered any of the following: 

• 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 
• Regular federal, state, or local government employees.

There are three events that may trigger the need for your employer to give you notice under the WARN Act:

• plant closings,
• mass layoffs, or
• when 500 or more employees are laid off at a single site of employment.

Some employment actions are covered by WARN. You are entitled to WARN notice if the above conditions apply to your situation and you:

• Are terminated from your employment, but not if you voluntarily quit, retire, or are discharged for cause;
• Are laid off for more than 6 months; or
• Have your regular hours of work reduced by more than half during each month of a 6-month period.

A plant closing 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.

The term “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 hours of work of more than 50 percent during each month of any 6-month period.

There are exceptions, but if WARN applies, employers are required to give you at least 60 days written notice before a closing or layoff.

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!