The WARN Act: When a Layoff Needs 60 Days' Notice — In Plain Words

This page is general information only. It is not legal advice.

What the WARN Act is

WARN stands for the Worker Adjustment and Retraining Notification Act.

It protects workers, their families, and communities.

It does this by requiring some employers to give advance written notice before a plant closing or a mass layoff.

Advance notice gives workers and their families some transition time.

They can adjust to the prospective loss of employment.

They can seek and obtain other jobs.

If necessary, they can enter skill training or retraining that will allow them to compete successfully in the job market.

The main rule

Employers with 100 or more employees must provide at least 60 calendar days advance written notice.

The notice is for a plant closing or a mass layoff affecting 50 or more employees at a single site of employment.

How the 100-employee count works

DOL states the count in two ways.

An employer is covered if it employs:

• 100 or more employees, not counting workers who are part time; or
• 100 or more employees, including part-time workers, who in the aggregate work at least 4,000 hours per week, excluding overtime hours.

DOL also describes the count this way: generally not counting those who have worked less than six months in the last 12 months, and those who work an average of less than 20 hours a week.

A “part-time” employee for WARN Act coverage is someone who has worked an average of less than 20 hours per week or less than 6 of the last 12 months.

The notice requirements apply to private for-profit businesses, nonprofit organizations, and quasi-public entities, when the entity is organized separately from regular government.

Regular federal, state, local, and federally-recognized Indian Tribal government entities that provide public services are not covered.

What counts as a mass layoff

DOL states the mass layoff threshold this way.

A mass layoff is a layoff affecting at least 50 employees and 1/3 of the worksite's total workforce, or 500 or more employees at the single site of employment.

So there are two paths to that threshold:

• 500 or more employees at the single site; or
• At least 50 employees, where they make up at least 1/3 — 33 percent — of the workforce at the single site.

DOL's FAQ states this threshold for a mass layoff during any 90-day period.

A worksite closing that triggers notice is a closing affecting 50 or more employees.

Who gets the notice

Employees entitled to notice under WARN include managers and supervisors, as well as hourly and salaried workers.

Notice must also be given to:

• Employees' representatives;
• The local chief elected official; and
• The state dislocated worker unit.

Employers are required to provide WARN notices to the state dislocated worker unit.

The U.S. Department of Labor does not require employers to provide WARN notices to the Department itself.

DOL states it neither maintains a database of WARN notices, nor requires employers to provide WARN notices to the Department.

Temporary layoffs

Employee protections under WARN apply to those who suffer an “employment loss.”

A temporary layoff or furlough may not be an employment loss for WARN Act purposes.

Under the Act, an employee who is laid off does not suffer an employment loss unless the layoff extends beyond 6 months.

So a temporary layoff of 6 months or less does not trigger the need for the employer to issue a WARN Act notice.

If a layoff is extended beyond 6 months due to business circumstances, notice is required when it becomes reasonably foreseeable that the extension is required.

Exceptions to the 60-day notice

Not all dislocations require a 60-day notice.

WARN makes certain exceptions to the requirements when layoffs or worksite closings occur due to:

• Unforeseeable business circumstances;
• Faltering companies; and
• Natural disasters.

In such instances, the WARN Act requires employers to provide as much notice to their employees as possible.

When invoking an exception to the 60-day notice requirement, a covered employer is still required to:

1. Give as much notice as is practicable; and
2. Include a brief statement of the reason for giving less than 60-days' notice, along with the other required elements of a WARN notice.

That notice to employees, or their representatives, and to State and local government officials may, in some circumstances, be notice after the fact.

Unforeseeable business circumstances — what that means

This exception applies to plant closings and mass layoffs caused by business circumstances that were not reasonably foreseeable at the time that 60-day notice would have been required.

An important indicator of a business circumstance that is not reasonably foreseeable is that the circumstance is caused by some sudden, dramatic, and unexpected action or condition outside the employer's control.

DOL gives these examples of that kind of circumstance:

• A principal client's sudden and unexpected termination of a major contract with the employer;
• An unanticipated and dramatic major economic downturn; and
• A government ordered closing of an employment site that occurs without prior notice.

The test focuses on the employer's business judgment.

The employer must exercise such commercially reasonable business judgment as would a similarly situated employer in predicting the demands of its particular market.

An employer relying on an exception is responsible for showing that the conditions for the exception were met.

Whether an exception applies rests on the employer's particular business circumstances.

Enforcement — read this limit plainly

DOL's Employment and Training Administration administers WARN but has no enforcement role in seeking damages for workers who did not receive adequate notice of a layoff or received no notice at all.

The Department has neither investigative nor enforcement authority under the WARN Act.

DOL does not enforce WARN for workers, and it cannot issue advisory opinions on specific cases.

The role of the U.S. Department of Labor is limited to providing guidance and information about the WARN Act.

That guidance is not binding on courts and does not replace the advice of an attorney.

The WARN Act is enforced by private legal action brought in the U.S. District Court for any district in which the violation is alleged to have occurred or in which the employer transacts business.

In plain words: workers enforce WARN through a lawsuit in federal court.

DOL states that any employee concerned about a WARN Act violation should seek legal counsel and consider whether to file suit in the applicable U.S. District Court.

An employer who violates the provisions of the WARN Act may be found liable for an amount equal to the amount of wages and benefits for each day of the period of violation, up to 60 days.

In any such suit, the court, in its discretion, may allow the prevailing party a reasonable attorney's fee as part of the costs.

This page cannot decide your case

This page does not decide whether any one person's layoff was covered by WARN.

Any dispute regarding the interpretation of the WARN Act, including a closing or layoff's foreseeability, will be determined on a case-by-case basis in the particular court proceeding.

Only the employer or a court can decide a real case.

Some states also have their own laws addressing layoffs and worksite closures, and information on state notice requirements can be obtained by contacting the applicable state dislocated worker unit.

Severance pay is a different thing from this advance notice — see the separate severance pay page in plain words for that topic.

This page is general information only. It is not legal advice.