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WARN Advisor

Is My Event a Covered Event Under WARN?

For the most part, WARN looks to a 30-day period to determine whether there have been enough employment losses for an event to qualify as a plant closing or mass layoff. In some instances, however, you must also look at a 90-day period to determine if there has been/will be a covered event (this is called 90-day aggregation). If, within a 90-day period, separate employment losses occur each of which involves fewer than the number of workers necessary to trigger WARN coverage but which together add up to the minimum numbers necessary to trigger coverage, WARN notice must be given before each of the employment losses unless the employer can demonstrate that the individual actions arose from separate and distinct causes.

An example of a situation in which a 90-day aggregation might apply follows:

    Day 1 -- Company has 189 employees;
    Day 2 -- Company terminates 30 employees;
    Day 31 -- Company terminates 23 employees;
    Day 60 -- Company terminates six employees; and
    Day 90 -- Company terminates five employees.

If the various terminations did not occur for separate and distinct causes, the company is required to provide notice to all 64 employees because the mass layoff threshold has been reached through separate actions which did not occur for separate and distinct causes within a 90-day period. All employees terminated within the 90-day period have suffered a mass layoff and all are entitled to 60 days notice before the date of their termination.

Within a 90-day period, do you anticipate that there will be separate employment losses at a single site of employment that together add up to the minimum numbers necessary to trigger coverage (and did not arise from separate and distinct causes)?