What Is the WARN Act? Employee Rights and Layoff Notice Requirements

The Worker Adjustment and Retraining Notification Act, often called the WARN Act, is a federal law that protects workers against sudden mass job loss events. Enacted in 1988, this law helps workers and communities prepare for large-scale job loss by requiring large employers to provide affected employees with advance notice of certain “triggering” events, namely plant closings and mass layoffs.

If you lose your job without receiving proper 60 days’ notice and the federal WARN Act applies, you could be entitled to financial recovery from your employer.

While the WARN Act is a federal law, many states also have their own version. Some provide more protection than the federal act. This article focuses on the federal WARN Act, including your employer’s compliance obligations and your rights as an employee. Knowing your employment rights is the key to protecting them.

Which Employers Are Covered by the WARN Act?

Covered employers must comply with the WARN Act. The federal WARN Act covers any “business enterprise” that employs:

• 100 or more full-time employees (not including part-time employees); or
• 100 or more employees who work a total of at least 4,000 hours per week (not including overtime hours).

Generally, part-time workers and government employees (federal, state, and local) are not covered by the WARN Act.

The federal WARN Act defines a part-time employee as “an employee who is employed for an average of fewer than 20 hours per week or who has been employed for fewer than 6 of the 12 months preceding the date on which notice is required.”

Nonprofit organizations are not automatically exempt from the WARN Act. A nonprofit organization that is purely charitable with minimal commercial activity may not be a covered employer. However, a nonprofit organization that functions as a business enterprise and meets the employee thresholds may be treated the same as for-profit employers and be subject to the WARN notice requirements.

What Events Trigger WARN Act Requirements?

Under the federal WARN Act, three different employer actions trigger the required notice. Each trigger is specifically defined and subject to certain thresholds. Central to each trigger is the meaning of “employment loss.” The federal WARN Act defines an employment loss as any of the following:

• An employment termination (other than a termination for cause, a voluntary departure, or a retirement)
• A layoff longer than six months
• A reduction in work hours of more than 50% during each month of any six-month period

Plant Closings

A plant closing triggers the federal WARN Act. A plant closing is defined as:

• The permanent or temporary shutdown of a single site of employment, or
• One or more facilities or operating units within a single site of employment, if the shutdown results in an employment loss at the single site of employment during any 30-day period for 50 or more employees (excluding any part-time employees)

Mass Layoffs

A mass layoff is a reduction in the workforce that is not the result of a plant closing. This is an employment loss at a single site of employment during a 30-day period of either:

• At least 33% of the employees (excluding part-time employees) and at least 50 employees; or
• 500 employees (excluding part-time employees)

Multiple Employment Losses at a Single Site

The WARN Act prohibits employers from using multiple, smaller layoffs or terminations at a single location to avoid coverage.

Employment losses within a 90-day period for two or more groups at a single employment site that don’t meet a threshold individually but exceed it when combined are considered a plant closing or mass layoff. The employer then must show that the employment losses are separate, distinct, and not an attempt to evade the federal WARN Act requirements

What Notice Are You Entitled To?

WARN Act compliance requires employers to meet strict notice requirements.

Who Is Entitled to Notice

Before ordering a plant closing or mass layoff, an employer must provide written notice of the order at least 60 days before the order to:

• The affected employees (or their representative)
• The state or state-designated entity that carries out rapid-response services
• The chief elected official of the unit of local government where the plant closure or mass layoff will occur

The 60-day notice requirement (measured in calendar days) gives the affected workers time to prepare for their pending employment loss, and gives communities time to prepare for the impact of large-scale unemployment.

What the Written Notice Must Include

Notice to the affected employees must state (in a language understandable to the employees):

• Whether the planned action is expected to be permanent or temporary, and whether the entire plant is closing
• The expected date the plant closing or mass layoff will begin, and the expected date the employee will be separated
• Whether or not bumping rights (seniority-based priority) exist
• The name and telephone number of a company official to contact for further information.

The covered employer must notify either each representative of the affected employees or, if there is no representative, each employee.

How the Employer Must Deliver Notice to Employees

The WARN Act is flexible about how the employer must give notice to the employees. But it does specify that a ticketed notice regularly included in each employee’s paycheck or pay envelope does not satisfy the notice requirement.

The employer may send the WARN notice to the employee’s last known address by first-class mail, by personal delivery, or by including the notice in the employee’s pay envelope.

When the 60-Day Notice Requirement Doesn’t Apply

The law provides specific reductions to the 60-day notice requirement. It is the employer’s job to prove an exception applies.

• Unforeseeable business circumstances: An employer may order a plant closing or mass layoff without 60 days’ notice if the plant closing or mass layoff is caused by business circumstances that were not reasonably foreseeable at the time notice would have been required. An example of this is the global pandemic.
• Faltering company: An employer may order the shutdown of a single site of employment without 60 days’ notice if the employer was actively seeking capital or business that, if obtained, would have prevented the shutdown and reasonably and in good faith believed that providing the notice would prevent the employer from obtaining the needed capital or business.
• Natural disaster: An employer may order a plant closing or mass layoff without 60 days’ notice if the plant closing or mass layoff is due to a natural disaster, such as a flood, hurricane, tornado, wildfire, earthquake, or drought.

Even when an exception to the notice requirement applies, employers generally must provide as much notice as practicable and explain the reason for the reduced notice.

In addition, the notice requirement doesn’t apply in certain circumstances:

• Limited Engagement: The federal WARN Act does not apply to a plant closing or mass layoff at a temporary facility or resulting from the completion of a specific project or undertaking, if the employees were hired with the clear understanding that their employment was limited to that duration.
• Strike or Lockout: The federal WARN Act does not apply where “the closing or layoff constitutes a strike or constitutes a lockout” as long as the lockout is not being used to evade the law.

What If Your Employer Violates the WARN Act?

An employer who violates the federal WARN Act is subject to civil action in federal district court. In other words, you can sue them.

Employers who fail to give adequate notice may be liable to each affected employee for back pay and benefits for the violation period, but not reinstatement. Further, reasonable attorney’s fees and costs may be recovered in the judgment. Affected employees may file civil lawsuits individually or join a class action lawsuit.

Employers may also be subject to additional civil penalties if they fail to notify the required government authorities.

Additional Protections Under State WARN Acts

Many states have their own “mini-WARN” laws. Some states have broader coverage for employees or stricter requirements for employers than the federal WARN Act, such as California. To check your state’s WARN Act requirements, visit your state’s Department of Labor or Employment Development Department website for more information.

What Should You Do If You’re Affected?

If you’ve experienced an employment loss, it’s important to protect your rights.

• Document everything
• Keep any notices or other communications you receive from your employer
• Determine if your situation qualifies for WARN Act protection
• Consider consulting with an employment attorney

Losing your job can be overwhelming. An employment attorney works on your behalf to ensure that your rights are protected.

Partner with an Experienced Employment Law Attorney

The WARN Act protects workers by providing advance notice of plant closures and mass layoffs. With this advance notice, affected employees and their communities have time to prepare—so workers can adjust, retrain, and find new jobs.

If you lost your job and you think you should have received notice under the WARN Act, protect your rights. Research your state and federal laws. These laws can be complex, and the stakes are high. If you want the peace of mind that comes from professional legal advice, consult with an experienced employment law attorney.