Millions of Americans have been laid off over the last few months due to the ongoing coronavirus pandemic. If you are an employee who has recently been laid off, you should become familiar with the federal and state WARN laws, as they may offer protection, depending on the circumstances of your lay-off.
The WARN Act, originally passed by Congress in the 1980s, requires employers to provide employees with notice 60 days prior to their termination. Because early intervention can lead to successful reemployment, the Act was passed as an attempt to provide employees with sufficient time to seek other employment or retraining opportunities before losing their jobs and becoming being unemployed.
Consider the following questions to better understand if you are covered by the WARN Act and what protections are available to you.
Am I protected by the WARN Act?
The federal WARN Act applies to all businesses with 100 or more full-time employees, not including employees working fewer than 20 hours per week or that have been employed for fewer than 6 months, that lay off 50 or more employees at a single site of employment. The law requires employers to provide their employees with written notice 60 days prior to termination.
In New York State, WARN is more expansive. The New York WARN Act requires notice to be given 90 days prior to termination and applies to employers with at least 50 employees located in New York State.
Generally speaking, the following types of employees are NOT protected by the WARN Act:
· Workers on strike;
· Workers working on temporary projects, which they understood were temporary at the outset;
· Business partners, consultants, or contract employees assigned to the business, with separate business engagements with other employers;
· Employees who are self-employed; and
· Government employees.
Was My Layoff an Event Triggered by WARN?
The following events trigger the federal WARN Act:
· Plant Closings – when one or more facilities in a given location anticipates a shutdown that will affect more than 50 workers and last more than 30 days.
· Mass Layoffs – when a series of layoffs over a 30-day period will result in the loss of 500 or more employees, or when a series of layoffs of more than 50 or less than 500 employees over a 30-day period results in a loss of 1/3rd of the workforce.
The New York WARN Act is triggered by the federally triggered events above, as well as the following:
· Employer Relocation – when an employer relocates to a location at least 50 miles away that results in employment loss for at least 25 employees.
· Hour Reductions – when an employer reduces hours by more than 50% in hours of work during each month in a consecutive six-month period for at least 250 employees or at least 25 employees if they comprise at least 1/3rd of the workforce at that site.
What Kind of Notice is Required Under the WARN Act?
The federal WARN Act requires the notice to contain an explanation of whether the layoff or closing is permanent or temporary, the date of layoff or closing, the date of the employee’s separation, an explanation of bumping rights, if they exist, and the name and contact information of an individual at the company that can provide additional information. Under New York’s WARN Act, the employer must also include information about unemployment insurance, job training, and reemployment services that employees may be eligible for. First class mail, personal delivery, and email are acceptable forms of service for the written notice.
Has the Coronavirus Pandemic Affected the Applicability of the WARN Act?
Both the federal and New York WARN laws provide three exceptions to the requirement of written notice prior to an employee’s termination:
· Faltering Businesses – where the employer reasonably believes providing more notice would preclude their ability to close out pending capital or business.
· Unforeseeable Business Circumstances – when unexpected circumstances cause the layoffs which usually trigger WARN.
· Natural Disasters – where the layoff was a result of a natural disaster.
In many situations, you might think the ongoing coronavirus pandemic falls under the “unforeseeable business circumstances” exception. This could be true with respect to the federal WARN Act. However, the New York Department of Labor (DOL) has refused to suspend WARN requirements due to the coronavirus. The DOL has provided guidelines advising employers to provide notice as soon as possible and with as much information as possible to determine if the situation creates an exception to the WARN Act.
What if My Employer Violated WARN?
If WARN covers you and your former employer did not give proper notice before laying you off, your former employer may be liable for damages. Depending on the situation, you may be entitled to back pay, the value of benefits you would have been entitled to had you not lost your employment and reasonable attorneys’ fees. It is important to note that there is a 6-year statute of limitations for violations of New York State’s WARN Act.
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