Frequently asked questions (FAQs) about WARN

OTHER LAWS AND CONTRACTS

Does WARN replace other notice laws or contracts?

The provisions of WARN do not supersede any laws or collective bargaining agreements that provide for additional notice or additional rights and remedies. If another law or agreement provides for a longer notice period, WARN notice runs at the same time as that additional notice period. Collective bargaining agreements may be used to clarify or amplify the terms and conditions of WARN but may not reduce WARN rights. For example, if the collective bargaining agreement provides for an employer to issue written notice to the union 75 days in advance of anticipated layoffs, the provision will satisfy the WARN requirement for 60-day advance notice. On the other hand, if a collective bargaining agreement provides a 45-day notice period, the WARN requirement for 60 days notice supersedes that provision.

CLARIFICATION OF WHO IS REQUIRED TO RECEIVE NOTICE

Where is the "single site" of my office if I travel widely within a large geographic 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), the single site of employment for WARN purposes is one of the following:

• 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.

How do I determine whether I am considered a full- or part-time worker for the purposes of receiving a WARN notice?

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, the examples below may help you understand the calculations needed to determine if you should receive a WARN notice.

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.

Overtime is not included in this determination.

The calculation to determine whether you may be eligible for WARN notice is:

TOTAL HOURS WORKED / 13 WEEKS

= AVERAGE HOURS WORKED PER WEEK

Example 1

223 TOTAL HOURS WORKED / 13 WEEKS

= 17.2 HOURS AVERAGE HOURS WORKED PER WEEK

Example 2

265 TOTAL HOURS WORKED / 13 WEEKS

= 20.4 HOURS AVERAGE HOURS WORKED PER WEEK

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 a full-time worker because the average hours worked per week was over 20 hours.

If a plant closing or mass layoff occurs, part-time workers are also entitled to receive a WARN notice.

If I was on leave- workers' compensation, medical, maternity, or other leave-when notice was given to other workers, should I have received a notice as well?

Yes. Workers on leave who reasonably expect that they will continue employment with their employer are due notice despite being on leave at the time notice was provided to other workers.

PAYMENT INSTEAD OF NOTICE

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 is in violation of 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 for 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. This approach may make it difficult for workers to receive Rapid Response assistance that is usually carried out at the work site. Workers who are given pay in lieu of notice and who need assistance should get in touch with their One-Stop Career Center. Call the National Toll-Free Help Line at 1-877-US-2JOBS or go to www.servicelocator.org to find the Center nearest you.

What if while I am receiving 60 days' pay, instead of a WARN notice, I get a new job? 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.

Can my employer provide a severance package instead of notice?

There are certain circumstances under which WARN allows "voluntary and unconditional" payments that are not required by a legal obligation or 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.

ENTITLEMENT TO VACATION PAY

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

Vacation pay may be considered wages or a fringe benefit in some situations. If you have "earned" the vacation pay, that is, if you have a legal right to it by contract or otherwise, then your employer must pay it as a part of WARN damages. These obligations are generally governed by contract and sometimes by the Employee Retirement and Income Security Act. Call 1-800-998-7542 or visit www.dol.gov/ebsa for more information.

BUMPING RIGHTS

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

When there is no union contract but your employer has an established system of bumping rights, your 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 your employer cannot reasonably identify those workers, it must give notice to the incumbent workers in the jobs being eliminated.

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

If, at the time notice is required, it is not possible 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 job classifications, 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 those who could be bumped 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. This notice 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 previously mentioned, when an employer gives individual notice, that 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.

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 a company policy or as part of a collective bargaining agreement, the employer may select employees to be terminated according to its business needs.

TRANSFERS

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 custom, or some combination?

The meaning of the term "reasonable commuting distance" will vary with local and industry conditions. Determining what is a "reasonable commuting 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.

SALE OF BUSINESS

If I am terminated without notice at the instant the sale of the business becomes effective, which party 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 that takes place up to and including the effective date (time) 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?

The refusal of the offer is considered a voluntary departure unless the job offered represents a "constructive discharge," which includes situations where very significant changes are made in employee's wage, benefits, working conditions, or job description.

If the buyer of the business continues to employ me but decreases my wages and benefits, has the buyer "constructively discharged" me?

If a drastic change in wages or working conditions causes a 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 (see glossary). This determination is often a matter of your state's laws and can be a strict one. Contact your State Rapid Response Dislocated Worker Unit for specific information or referral to a knowledgeable staff member in the appropriate state agency. See the Directory of Information and Contacts at the end of this brochure for additional sources of information and assistance.

BANKRUPTCY

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

WARN remains applicable to an employer that declares bankruptcy in some circumstances. If your employer declares bankruptcy and then orders a plant closing or mass layoff, it may still be liable under WARN. There are two situations under which WARN still applies though your employer declares bankruptcy. The first situation occurs when your employer knows about the 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 your 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.

The exceptions to the notice requirement, a 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.

POSTPONEMENT OF LAYOFF

If my employer gave me a WARN notice and then postponed the layoff because an order was received for more work, does my employer 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. Your employer must provide a new WARN notice if the postponement is for 60 days or more.

WAIVING THE RIGHT TO WARN NOTICE

Can I waive my right to notice under WARN?

You cannot be required by your employer to waive your right to advance notice under WARN. However, when an employer closes a facility or has a layoff, the employer may ask its employees to sign a document waiving their right to make claims against the employer. (Waiving the right to make claims against the employer means the employee agrees not to sue the employer for additional financial compensation or any other benefit because of the employee's job loss, or, in some cases, from anything else that may have occurred during the worker's employment.) This request for your signature may involve offering some additional severance pay or extended health benefits. If you received something of value (such as additional pay or benefits) for signing the waiver and you signed the waiver voluntarily and knowingly, you may have waived any claims you have under WARN or other employment-related laws.

PENALTIES FOR FAILURE TO GIVE NOTICE

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

Yes. An employer who 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. 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. The 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.