WARN Advisor

Additional Frequently Asked Questions about WARN

Below are answers to some additional frequently asked questions about WARN that may assist employees in understanding the WARN Act.

Are there penalties to the employer for violating the WARN advance notice requirement?

Yes. An employer that violates the WARN Act notice requirement is liable to each affected employee for an amount equal to back pay and benefits for the period of violation up to 60 days. The courts are split on how to measure the amount of back pay available to workers. The majority of courts hold that back pay is measured by the number of work days in the violation period. There are some courts, however, that hold that back pay is measured by the number of calendar days in the violation period. Workers or a union may bring suit in Federal court to enforce their rights under WARN. The Department of Labor has no enforcement authority under WARN and does not investigate complaints or bring suits to enforce WARN.

An employer that 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 satisfies the liability to each affected employee within three weeks after the closing.

In any suit, the court, in its discretion, may allow the prevailing party a reasonable attorney's fee as part of the costs. These are the only remedies that WARN provides.

What if my employer pays me for the 60 days instead of sending me a WARN notice?

WARN requires 60 calendar days' written notice. The law makes no provision for any alternative such as pay in place of a notice. While an employer who pays workers for 60 calendar days instead of giving them proper notice technically has violated WARN, the provision of pay and benefits in place of a notice is a possible option. Because WARN provides for back pay and benefits for the period of the violation, up to 60 days, generally this approach by an employer—pay in place of notice—means that the employer has already met the penalty specified in the Act, if the payment is not required to be made. WARN allows voluntary payments of wages and benefits to be offset against any damages that might be awarded. If, however, a payment is required by another law, contract or company policy or practice, it may not be offset against WARN damages.

This approach may make it difficult for workers to receive rapid response assistance, which is usually carried out at the work site. Workers who are given pay in lieu of notice and who need assistance should contact their closest American Job Center by visiting America's Service Locator or calling 1-877-US-2JOBS (V) or TTY.

If I get a new job while I am receiving 60-days' pay instead of a WARN notice, is my employer required to continue paying me until the end of the 60 day period?

Your former employer can consider the acceptance of a new job as a voluntary termination from your old job. Since you now have a new job, your former employer may end the payments you were receiving instead of a notice—just as the remaining days of your 60-day WARN notice would no longer be in effect if you found new employment before the date of your layoff.

What if I am on leave (sick, annual/vacation, maternity, etc.) when notice of a plant closing/layoff is announced. Am I due notice?

Yes. Workers on leave are due notice if they have a reasonable expectation of returning to work after their leave is ended.

How do I determine whether I am considered a part-time worker?

You are a part-time worker if:

1. you have worked for fewer than six of the last 12 months before the date notice is due; or
2. you have worked an average of fewer than 20 hours per week.

If you work a regular schedule of 20 hours or more each week, you are a full-tim worker.

If you have a varying work 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.

If you work a varying schedule, the examples below may help you understand the calculations needed to determine if you are a part-time worker.

The worker in Example 1 is a part-time worker because the average hours worked per week was less than 20 hours. The worker in Example 2 is not a part-time worker, but rather a full-time worker since the average hours worked per week was over 20 hours. However, if plant closing or mass layoff occurs, part-time workers are also entitled to receive a WARN notice.

Can my employer provide a severance package instead of notice?

It is possible for an employer to provide a severance package instead of notice in two situations. First, the severance package may be conditioned on waiving any claims under WARN. The conditions for waiver are discussed in the next question. Secondly, the severance package may offset WARN, this effectively providing pay in lieu of notice. There are certain circumstances under which WARN allows "voluntary and unconditional" payments that are not required by a legal obligation or collective bargaining agreement to be offset against an employer's back pay obligation. However, payments that are required by a contract, such as an employer's personnel policies (or much less likely, state law), would not offset WARN damages and, thus, would not serve to reduce the employer's liability.

Can I waive my WARN rights?

There are circumstances in which your employer may ask you to waive your rights to WARN notice in return for a severance package. If you agree to such a waiver voluntarily and knowingly, with an opportunity to think about it and consult with a lawyer if you wish to, and if there is consideration, that is, if you get something of reasonable value in exchange for the waiver, then the waiver will be effective to eliminate your rights under WARN.

How can I be sure my pension or benefit rights have been protected?

You should obtain a copy of your pension plan's summary plan description to see what benefit rights you may have upon termination of employment. Depending on the circumstances, you may have a right to COBRA continuation health care benefits as a result of being laid off. The Federal law that applies to these benefits, the Employee Retirement Income Security Act (ERISA), is administered by the U. S. Department of Labor's Employee Benefits Security Administration (EBSA). Separation benefits such as severance and vacation pay may be covered by state law or may also fall under ERISA. If you have questions about your pension, healthcare or other employee benefits covered by ERISA, you may call EBSA's toll-free help-line at 1-800-998-7542 or visit the EBSA website.

Where is the "single site" of my office if I travel widely within a large geographical area - for example, if I am a salesperson?

For workers whose primary duties require travel from point-to-point, who are outstationed, or whose primary duties involve work outside any of the employer's regular work sites (including railroad workers, bus drivers and salespersons and teleworkers), the single site of employment for WARN purposes is whichever of the following is applicable to the worker's situation:

• The location to which workers are assigned as their home base;
• The location from which workers are assigned duties; or
• The location to which they report.

Is my employer required to give notice if it declares bankruptcy?

There are two situations under which WARN still applies even though your employer declares bankruptcy. The first situation occurs when your employer knows about the plant closing or mass layoff before filing for bankruptcy and should have given you notice but seeks to use bankruptcy to avoid giving notice. The second situation occurs when the employer continues to run the business in bankruptcy, usually as a debtor in possession. WARN generally does not apply where a bankruptcy trustee is simply liquidating a business.

Two of the exceptions to the notice requirement, the faltering company and unforeseeable business circumstances often come up in bankruptcy cases. The bankruptcy proceeding does change the court in which the WARN claim must be filed, from the U.S. District Court to the Bankruptcy Court. The bankruptcy filing may affect how soon any damages are actually paid to an affected employee.

If I am terminated without notice at the instant the sale of the business becomes effective, who is liable, the seller who employed me or the new buyer of the business?

The seller. In the case of the sale of part or all of a business, the seller is responsible for providing notice of any plant closing or mass layoff which takes place up to and including the effective date of the sale. The buyer is responsible for providing notice of any plant closing or mass layoff that takes place after the sale is complete. Employees of the seller automatically become employees of the buyer for purposes of the WARN notice requirement.

If I am offered a job with the buyer of the business and I refuse it, is this considered a voluntary departure?

Yes. Unless the offered job represents a constructive discharge, which includes situations when very significant changes are made in employees' wages, benefits, working conditions or job duties, the refusal of the offer is considered a voluntary departure.

If the buyer of my company continues to employ me but at a decrease in wages and benefits, has the buyer constructively discharged me?

If a drastic change in wages or working conditions would cause a reasonable person to believe that he or she was being fired or would be unable to continue working for the buyer, this may constitute a constructive discharge. This determination is often a matter of your State's laws and the test can be a strict one; in other words, the change in wages and/or working conditions must be quite severe to be considered a constructive discharge.

Am I still entitled to notice if my employer offers to transfer me to a new job?

Notice is not required in certain cases involving transfers because the transfer is not considered an employment loss. If your employer offers you a transfer to a job within a reasonable commuting distance, you are not considered to have suffered an employment loss, whether or not you take the job. If your employer offers you a job outside a reasonable commuting distance, you must accept the job within the later of the 30 days from when the offer was made or 30 days from when the offer was made or 30 days of the plant closing or mass layoff or you are considered to have suffered an employment loss. There are two other conditions to this transfer rule. One is that the offer of a transfer must be the result of a consolidation or transfer of your employer's business. The other is that the offer must be made before the plant closing or mass layoff occurs. An offer of reassignment to a different site of employment would not be deemed to be a "transfer" if the new job constitutes a constructive discharge.

If my employer offers to transfer me to another location, how do I know if the transfer is within a reasonable commuting distance? Is it based on time, mileage, local customer or some combination?

The meaning of the term "reasonable commuting distance" will vary with local conditions. Determining what is a "reasonable community distance" involves consideration of the following factors: geographic accessibility of the place of work, the quality of the roads, customarily available transportation and the usual travel time. The starting point for determining whether a commuting distance is reasonable is your home, not where you work.

What if my employer gave me a WARN notice and then postponed the layoff because an order was received for more work, does he have to give me a new 60-day notice?

Additional notice is required when the date of a planned plant closing or mass layoff is extended beyond the date or end of a 14-day period announced in the original notice. If the postponement is for less than 60 days, the additional notice should be given as soon as possible and should include a reference to the earlier notice, the new date and the reason for postponement. The notice can be given informally by any reasonable means and is not a new WARN notice. If the postponement is for 60 days or more the employer must provide new WARN notice.

Can my employer decide not to give me my paid vacation in a layoff/closing situation?

WARN does not govern the extent of an employer's obligation to provide severance benefits, including vacation pay. These obligations are generally governed by contract, state law and sometimes by the Employee Retirement and Income Security Act (ERISA). The Department of Labor's Employee Benefits Security Administration (EBSA), which administers ERISA, may be able to provide more information. You can contact EBSA by calling its toll-free help-line at 1-800-998-7542 or visiting the EBSA website.

May my employer give notice to everyone even when all affected workers cannot be identified?

If, at the time notice is required to be given, it is not possible, because of bumping rights under a seniority system, for your employer to identify who may reasonably be expected to be laid off, then your employer must give notice to those workers whose jobs will be eliminated as a result of the plant closing or mass layoff. Your employer may choose to give broader notice to workers likely to be affected by the seniority system but it is not appropriate for an employer to provide a blanket notice to all of its employees.

In the case of a union contract, if the employer meets the requirements of the regulations and provides notification to the union representative as to the job classifications and the names of employees who are in those affected jobs, is that notice sufficient to cover whatever bumping takes place later? Or does the employer have to provide notice about specific individuals who are to be bumped eventually?

It is not necessary for the employer to identify bumpees when providing a WARN notice to a union representative. The employer is only required to address bumping rights in notices to employees who are not represented by a union. Notice to an employee requires an indication of whether bumping rights exist but not an indication of the specific individuals who may be subject to bumping rights in the future. As mentioned above, your employer is required to make a good faith effort to identify and provide notice to those workers who will actually lose their jobs as the result of the seniority system.

What obligations does my employer have to give notice when there is an established bumping rights system?

When there is no union contract, but the employer has an established system of bumping rights, the employer must attempt to identify the individuals who will ultimately lose their jobs as a result of the bumping system and provide the WARN notice to them. If the employer cannot reasonably identify those workers, it must give notice to the incumbent workers in the jobs being eliminated.

Does my employer have to tell employees the system it has used to determine who receives layoff notices? Does job tenure or seniority make a difference?

No. Unless there is an established system for reducing the workforce either in the employee manual provided to all employees, or as part of a collective bargaining agreement, the employer may select employees to be terminated according to its business needs, though it may not discriminate on the basis of sex, age (40 and over), color, religion, national origin, or disability.

Where can I obtain copies of the WARN Act and Regulations?

Specific requirements of WARN may be found in the Act itself. The U.S. Department of Labor also published WARN final regulations on April 20, 1989 in the Federal Register (Vol. 54, No. 75). All of these resources may be found on DOL's WARN Compliance Assistance Page.