An Employer’s Guide to the Worker Adjustment and Retraining Notification Act: How To Issue a WARN Notice

If your company is considering mass layoffs or a shutdown, it’s important to evaluate how to proceed under federal and state law. The federal Worker Adjustment and Retraining Notification Act (WARN) applies to private, non-profit, or quasi-public employers. Some states have similar laws, known as “mini-WARN acts,” that resemble the federal WARN Act.

This article explains the WARN Act, who it covers, and how to issue WARN notices. If you’re planning a layoff or shutdown, consider seeking legal advice from an employment law attorney.

What Is the WARN Act?

The WARN Act is a federal law requiring employers to notify employees, unions, and local authorities of mass layoffs or plant closures.

The law allows workers to start looking for a new job or apply for unemployment before they’re laid off. Another reason is to alert the community so local authorities and civic response agencies can minimize the economic impact.

Who Does WARN Cover?

The federal WARN Act applies to businesses with 100 or more full-time employees or more than 100 employees who, in the aggregate, work at least 4,000 hours per week (not including overtime). Small business owners with fewer workers aren’t affected by WARN regulations.

How WARN Works

Under the federal WARN Act, WARN is “triggered” when a plant closing or mass layoff will last longer than a certain period or affect a specific number of people. State mini-WARN laws, like California’s, work the same way. The notice requirement applies to affected employees (or their union representative if they are unionized) and specified state and local government officials.

Although it sounds industrial, a “plant” means any employment site, facility, or operating unit. If you have 75 employees in a print shop and 30 employees upstairs in the office, you have 105 workers at your plant.

A covered plant closing happens when either of the following occurs:

• The plant shuts down for more than six months
• 50 or more employees are affected by the employment loss during any 30-day period at a single site of employment

A covered mass layoff happens when one of the following applies:

• 500 or more employees (excluding part-time employees) experience an employment loss during any 30-day period at a single site of employment
• 33% of the employer’s workforce when the layoffs affect between 50 and 499 workers

The number of affected workers is the total number laid off during a 30-day period (in some cases, a 90-day period).

WARN may provide exceptions to the 60-day notice requirement in limited circumstances:

• Temporary facilities close or the workers were hired for a short-term project. WARN isn’t triggered when layoffs coincide with known end dates.
• A “faltering company” is closed when owners seek funding in good faith and believe advance notice would hurt their chances of receiving it (only applies to plant closings, not mass layoffs)
• Unforeseeable business circumstances, such as a government shutdown or the COVID lockout
• Job losses due to natural disasters such as hurricanes or wildfires

WARN Notice Exemptions

Workers are not included in the WARN Act trigger if:

• They are part-time employees (unless your state law requires it)
• They resigned, retired, or were terminated for cause, and their final work day falls during the 60-day notice period
• The employer offered them a transfer to another location within a reasonable commuting distance (or outside a reasonable commuting distance and the employee accepts) if the shutdown is part of a consolidation or relocation

How To Issue a WARN Notice

Issuing a WARN notice involves a specific set of steps to ensure you comply with federal and state law.

1. Determine if WARN or Mini-WARN Applies to Your Company

• Does your company meet the federal threshold? Determine whether WARN applies to your company. The federal WARN Act applies to employers with 100 or more employees.
• Does your state have additional duties under a mini-WARN statute? California, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, New Hampshire, New Jersey, New York, Ohio, Tennessee, Vermont, Washington, and Wisconsin all have some type of mini-WARN statute, but state laws vary. For example, California’s mini-WARN statute applies to employers with 75 or more employees. New Jersey requires 90 days’ notice and severance payments. Always check your state laws, as requirements may change.
• Do you have a covered event? WARN notices are required if there is a plant closing where 50 or more employees have a job loss at a single site during a 30-day period, or there is a mass layoff affecting 500 employees (or 50-499 employees if they consist of at least 33% of your active workforce at one site, excluding part-time employees). If your company meets either definition, you have a covered event.

When seeking legal guidance, have an employment law attorney review state and federal laws tied to your workplace, not just the company headquarters.

2. Calculate the Notice Period

Determine your separation date, then count back your required notice period. Under the federal WARN Act, you must provide 60 days’ advance notice. In some states, it’s longer.

3. Draft Your Notice

The notice should explain the following:

• The nature of the action
• Whether it is permanent or temporary
• The expected start and separation dates
• The affected positions
• Whether there are bumping rights

“Bumping rights” allow a more senior employee whose job is eliminated to take the job of a less-senior employee, who is laid off instead. The company should also list a contact person for questions and keep all records of notice delivery.

4. Send Notice to Required Parties

The company must send notice to the required parties. If a union is involved, the notice to the union satisfies the employee-notice requirement. The required parties are:

• Affected employees: Each affected employee losing their job, unless represented by a union
• Union or union representative: The chief elected official of the employee’s bargaining representative
• State dislocated worker unit: The state’s Rapid Response Services or Dislocated Worker Unit
• Local government: The elected official of the local government where the layoffs will occur

These alerts are required, not optional.

Employer Consequences of Violating WARN

WARN violations are civil penalties enforced through federal courts. Employers who fail to give adequate notice are liable to each employee for back pay and benefits for the period of violation. Employees may also bring individual or representative actions in U.S. district courts. Courts may award attorney’s fees and costs as part of the judgment.

Failing to notify the state Rapid Response Dislocated Worker Unit and local officials may result in fines for each day of violation. Employers can avoid this penalty under WARN provisions.

Get Legal Advice

Complying with federal and state WARN acts can be complex. The calculations for who is covered and when notice is required are highly specific. If you’re planning a business closure or significant layoff, consulting with an employment law attorney can ensure you meet all legal obligations and avoid costly penalties.