U.S. Department of Labor
WARN Advisor
When Must My Employer Provide Notice?
Your employer is required to provide written notice 60 calendar days before a mass 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 a layoff or plant closing. There are, however, some exceptions to this requirement under which an employer is not required to give any notice or may give less than 60 days notice. These exceptions are:
- Faltering Company - When, before a plant closing or mass layoff, a company is actively seeking capital or business and reasonably in good faith believes that advance notice would prevent the company from obtaining such capital or business, and this new capital or business would allow the company to avoid or postpone a shutdown for a reasonable period.
- Unforeseeable Business Circumstances - When the closing or mass layoff is caused by business circumstances that were not reasonably foreseeable at the time that 60-day notice would have been required (in other words, by a business circumstance that is caused by some sudden, dramatic and unexpected action or conditions outside the employer's control). For example, a major customer canceling its order without prior notice would usually be an unforeseeable business circumstance.
- Natural Disaster - When a plant closing or mass layoff is the direct result of a natural disaster such as a flood, earthquake, drought, storm, tidal wave or similar effects of nature.
If these exceptions apply, an employer is still required to provide as much notice as practical under the circumstances. This could vary from weeks to almost no time in the case of a natural disaster that destroys a plant and forces it to close. The notice must give a brief statement of the basis for invoking the exception.
There are also two situations in which your employer would not be required to give notice of an event which would ordinarily be covered by WARN. These are:
- Temporary Project or Facility - If workers were hired for a specific project and the workers were informed that their employment was limited to that project. This is often the case in the construction and agricultural industries. Firms that hire workersfor temporary projects or facilities may also have permanent employees. If enough of these permanent workers are laid off to trigger the notice requirement, notice must be given to the permanent workers; the exception still applies to the workers who were hired only for the specific project. Also, some employers may use the same seasonal workers year after year. If they hire these seasonal workers for more than six months a year, the exception also may not apply.
- Strikes or Lockouts - If a plant closing or mass layoff occurs as a direct result of a strike or lockout and the plant closing or mass layoff is not intended to evade the purposes of WARN. This exception only applies to the particular plant at which the strike or lockout occurs; it does not apply to other locations in the same firm or to suppliers or customers who may be affected by the strike or lockout. (These other affected firms may, however, be entitled to give reduced notice under the unforeseeable business circumstances exception.)
These exceptions are addressed in detail in Section 639.5 and Section 639.9 of the WARN regulations and discussed in Section 639.5 and Section 639.9 of the Preamble to the 1989 Final Rule.
There are two situations in which you may not receive an individual 60 day written notice from your employer even though WARN applies. The first situation is when you are represented by a union. In that case, your employer must give 60 days written notice to the union. It is up to your union to decide how and when to give you notice.
The second situation is when there is a system of bumping rights (that is, a system in which workers with greater seniority whose jobs are abolished may replace (bump) workers with less seniority so that the worker who ultimately loses his/her job is not the worker whose job was abolished). This situation will not arise often, since most seniority systems are created under collective bargaining agreements and the union is the party required to be notified. If there is a seniority/bumping system and no union is involved, your employer must make a good faith effort to determine who will actually lose their job as the result of the seniority system. But your employer is not required to predict exactly who will lose a job as a result of a complex seniority/bumping system. If your employer cannot exactly predict who will lose their job as a result of a seniority/bumping system, your employer must give notice to the person whose job is being eliminated, even though that person may later bump another worker.
