O’Malley and Madden Weekly

Topic of the Week  Mass Layoffs

  • Is my employer covered by the WARN Act?
  • How long before I lose my job must my employer give me notice?
  • What if my employer didn't know 60 days before that his or her business was closing? Is my employer in violation of the WARN Act?
Is my employer covered by the WARN Act?

If an employer has 100 or more full-time employees it is generally covered by WARN. Employees who have worked fewer than 6 months in the last 12 months or those who work an average of less than 20 hours a week are not counted as part of the 100 employees required for coverage.

Private, for-profit employers and private, nonprofit employers are covered, as are public and quasi-public entities which operate in a commercial context and are separately organized from the regular government. Regular Federal, State, and local government entities which provide public services are not covered.

How long before I lose my job must my employer give me notice?

There are exceptions, but if WARN applies, employers are required to give you at least 60 days written notice before a closing or layoff.

It is very important that you receive written notice of your impending job loss. Verbal announcements by your employer, pre-printed notices included with your paycheck, and/or company press releases do not count as notice.

What if my employer didn't know 60 days before that his or her business was closing? Is my employer in violation of the WARN Act?

Not necessarily; there are three exceptions to the 60-day notice requirement. An employer is not required to give a full 60 days notice if s/he could not reasonably foresee the circumstances that led to a layoff or closing at the time that the 60-day notice would have been required.

The exceptions to 60-day notice are:

Faltering company: The faltering company exception covers situations where a company has sought new capital or business in order to stay open and where giving notice would ruin the opportunity to get the new capital or business. This applies only to plant closings;

Unforeseeable business circumstances: This exception applies to closings and layoffs that are caused by business circumstances that were not reasonably foreseeable at the time notice would otherwise have been required; and

Natural disaster: This applies where a closing or layoff is the direct result of a natural disaster, such as a flood, earthquake, drought or storm.

If an employer provides less than 60 days notice of a closing or layoff and relies on one of these three exceptions, the employer must prove that the conditions for the ex"ception have been met.

Nonetheless, notice must always be provided as soon as it is practicable. When notice is given in less than the 60-day timeframe, the employer must include a statement of the reason for providing less than 60 days' notice in addition to fulfilling the other information notice requirements.

Thought of the Week

"When a company navigates through layoffs, it must be mindful of its current employees. Past research has shown that layoffs and termination can cause stress-related illnesses such as burnout, which was more than twice as high to companies that had downsized compared to those who didn’t. For prospective workers, nearly half of workers said hearing about the company announcing layoffs would make them leave the recruiting process. Leaders are in a unique position during these dark times. They can easily set the tone for a company moving forward."

–Kyle Schnitzer; reporter for Ladders

Weekly Comic by Jerry King

Weekly Comic by Jerry King

Blog of the Week

Top Five News Headlines

    List of the Week

    from Paid Leave For All

    Paid Leave For All

    • 19% of U.S. workers have access to paid family leave through an employer and only 40 percent have access to short-term disability insurance. 
    • Nearly 1 in 4 employed mothers return to work within two weeks of giving birth.
    • One in 5 retirees leave the workforce earlier than planned to care for an ill family member. 
    • 84% of voters support a comprehensive paid family and medical leave policy that covers all working people.