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30 days or 90 days?
  • A company is required by the WARN Act to provide notice of mass layoffs within a 30-day period, but should be aware that actions over a 90-day period may be examined.

The Worker Adjustment and Retraining Notification (WARN) Act regulations refer to mass layoffs within a 30-day period. However, most employers are aware that actions over a 90-day period may be examined. This has created some confusion about how far employers must look back to determine the WARN Act notice requirements.

The “look back” period is a bit complicated. Ordinarily, it would be 30 days. However, if the company could reasonably anticipate a series of layoffs, it may be extended to 90 days. In most cases, the WARN Act looks at a 30-day period. For example, if an employer closes a plant which employs 50 workers and lays off 40 workers immediately, and then lays off the remaining 10 workers 25 days later, that is a covered plant closing (all actions occurred within 30 days).

However, the WARN Act also looks at a 90-day period. An employer is required to give advance notice if it has a series of small terminations or layoffs, none of which individually would be covered, but which add up to numbers that would require the WARN Act notice. An employer is not required to give notice only if it can show that the individual events occurred as a result of separate and distinct actions and causes and are not an attempt to evade the WARN Act.

For example, if a layoff would affect 40 employees initially, but the company can reasonably anticipate additional layoffs within 90 days (and the total will exceed the WARN Act threshold) then the company should consider all layoffs within a 90-day period as part of the same action and give notice as required.