Loss in the Time of Coronavirus: Evaluating WARN Obligations During a Pandemic

Due to COVID-19, businesses may have to close or lay off workers. The WARN Act usually requires employers to give 60 days’ notice before laying off a lot of employees, but during a pandemic, it’s hard for businesses to know that far in advance. Also, if they give early notice, it could cause more problems. This article talks about what the WARN Act requires and how a pandemic makes it tricky. WARN applies to businesses with 100 or more employees, including part-time workers who work a certain number of hours. It covers layoffs of 50 or more full-time employees at a single location. It requires notice for plant closings or mass layoffs. If a layoff lasts longer than expected, notice must be given when it becomes clear. If there are successive layoffs, separate notices may be needed. To count as a plant closing or mass layoff under the WARN Act, there needs to be at least 50 full-time employees who lose their jobs at one location within a 30-day period. But in some cases, the counting of job losses can span over 30 days. If there are multiple smaller groups of employees who lose their jobs within a 90-day period and the total number of job losses adds up to 50 or more, it still counts as a plant closing or mass layoff. This is to prevent employers from trying to avoid their obligations under the WARN Act. So, employers need to keep track of job losses to make sure they’re following the rules, especially during events like a pandemic. Many employers may not be able to give 60 days’ notice before laying off employees during the COVID-19 pandemic. There are some exceptions to this rule, but employers still have to give as much notice as possible. The exceptions include natural disasters, unforeseeable business circumstances, and a faltering company. The COVID-19 pandemic may qualify as a natural disaster, or an unforeseeable business circumstance, which could allow employers to give less than 60 days’ notice before laying off employees. The Department of Labor has rules about when a business can lay off employees without giving notice. They say that if a business has a sudden and unexpected problem that they couldn’t control, like a pandemic or a government shutdown, they might not have to give notice before laying off employees. This means that in certain situations, a business can lay off employees without warning if they have a good reason. If a company needs to lay off employees because of financial problems, they may not have to give the usual 60 days’ notice if they were actively trying to get money or business that would have helped them avoid layoffs. This exception only applies to plant closings, not mass layoffs. This exception may apply to companies during the COVID-19 pandemic if they were seeking loans or other financing but couldn’t get it. If a company is planning to shut down or lay off a lot of employees, they need to give 60 days’ notice to the employees, the state, and the local government. But there are some exceptions, like if the company is trying to get money or business to keep the place open, or if something unexpected happens, like a pandemic. If the company doesn’t give enough notice, they can get in big trouble and have to pay the employees for the days they didn’t get notice. It’s a complicated law, so it’s important for companies to talk to a lawyer before making big decisions. With the COVID-19 pandemic, a lot of companies are having to lay off employees and might have to deal with these rules. If a company is going to lay off a lot of employees, they need to give them at least 60 days’ notice before it happens. If they don’t, they might have to pay the employees for the time they should have been given to find a new job. There are some exceptions to this rule, like if the layoff happens because the company is in big financial trouble. Some states have their own rules about this too. The court decided that a lawsuit against a company for not giving enough notice before laying off employees should be dismissed because the lay offs were caused by an unexpected problem with the company, not because they planned it. This is in line with the law found in 20 C.F.R. §639.9(b)(1). In a case in 2006, the Ninth Circuit court said that the WARN Act, which requires a 60-day notice for plant closings or mass layoffs, doesn’t apply if the government orders the closing, not the employer. But some other courts and the Department of Labor say that only certain government-ordered closings are exempt from the act. There’s no clear guidance on how government-mandated closures during the COVID-19 pandemic should be handled under the WARN Act. If a company plans to lay off workers, they must give as much notice as they can. There are some exceptions, like if the company is shutting down or if they have a good reason for not giving notice, like if they couldn’t get new business or financing if people knew about the layoffs. If a company breaks these rules, employees can sue them for not giving enough notice. For example, Hooters and Velodyn Lidar have been sued for laying off workers without enough notice. Alicia H. Koepke is a lawyer at Trenam Law who helps companies with employment and business issues. She also represents clients in legal disputes. This column is written by the Labor and Employment Law Section. Their goal is to teach lawyers about their duty to help the public, improve how the law is carried out, and advance legal studies.

Source: https://www.floridabar.org/the-florida-bar-journal/loss-in-the-time-of-coronavirus-evaluating-warn-obligations-during-a-pandemic/