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What Is the Worker Adjustment and Retraining Notification Act?

By Douglas Lipsky

Even with the continued economic expansion and the nation’s unemployment rate at historic lows, it is still common for large corporations to layoff thousands of employees at a time. Losing a job is one of the top ten most stressful experiences for individuals, resulting in financial hardships that can affect the entire family. 

More than this, mass layoffs can have a devastating impact on the community, which is why the U.S. Congress enacted the Worker Adjustment and Retraining Notification Act (WARN) of 1988. The law is designed to allow workers and their families time to adjust to the job loss, secure employment, and obtain retraining if necessary. If you have lost your job in a mass layoff, it takes a skilled employment lawyer to protect your rights.

How does the WARN act protect employees?

WARN requires most employers with 100 or more employees to provide at least 60 days advance written notice of a plant closing or mass layoff of 50 or more employees at one worksite. It is worth noting that workers who work less than an average of 20 hours a week or who have been employed less than 6 months in the last 12 months are excluded from the calculation of total employees.

Employees who are required to be notified of a layoff include managers, supervisors, hourly wage, and salaried employees; however, the act does not protect certain employees, such as workers on strike, temporary workers, and local, state, and federal government employees. In addition, given the potential impact of a mass layoff on the community, WARN also requires employers to notify the employees’ representatives, the chief elected official (e.g. a county executive) and the state dislocated worker unit. 

In addition, there are exceptions to the 60-day requirement: it does not apply if the mass layoff is caused by unforeseeable business circumstances or natural disasters or when faltering companies are attempting to secure capital to continue operating. The notice must still be provided as soon as “practicable,” however.  

Penalties for WARN Violations

An employer that fails to comply with WARN requirements is liable to each employee who was not provided with proper notice for back pay and benefits for up to 60 days. This liability may be reduced if the employer paid any wages or unconditional payments to an affected employee during the violation period. Finally, an employer that fails to comply with the requirement to notify the affected local government faces a civil penalty of up to $500 per day of the violation occurring.

How does the New York WARN Act differ from the federal Warn Act?

The New York Worker Adjustment and Retraining Notification Act (NYS WARN), which became effective in 2009, also provides legal protections to New York workers facing a mass layoff. 

NYS WARN differs from the federal WARN Act in that it covers more private sector employers and has lower numerical thresholds that trigger the notice requirement. Moreover, NYS WARN requires employers to provide at least 90 days’ written notice of a mass layoff, plant closing, or relocation, instead of the 60 days’ notice required under the federal law. Civil penalties may be assessed for an employer who fails to comply with the notice requirements of NYS WARN — including a fine of up to $500 for each day of the violation.

Why This Matters

Although most employees work at will, which means they can be terminated at any time, for any reason, or no reason at all, those who lose their jobs in a mass layoff have certain rights. The best way to enforce those rights is to consult an experienced employment lawyer.

About the Author
Douglas Lipsky is a co-founding partner of Lipsky Lowe LLP. He has extensive experience in all areas of employment law, including discrimination, sexual harassment, hostile work environment, retaliation, wrongful discharge, breach of contract, unpaid overtime, and unpaid tips. He also represents clients in complex wage and hour claims, including collective actions under the federal Fair Labor Standards Act and class actions under the laws of many different states. If you have questions about this article, contact Douglas today.