WARNing to Employers: State and Federal WARN Acts Require Advance Notice of Significant Employment Losses

Employers could run afoul of federal and state law if they fail to provide advance notice to employees of significant employment losses as defined in both state and federal law. The federal Worker Adjustment and Retraining Notification Act[1], 29 U.S.C. 2100 et seq. (“WARN Act”), and New Hampshire’s counterpart, RSA 275-F (“NH WARN Act”)[2], requires certain employers to provide advance notice to employees of anticipated mass layoffs and plant closings.

The purpose of the state and federal law is to provide employees with time to find a new job or retrain for a new career, and to allow both federal and state governments to prepare for a sudden influx of unemployed workers.  While some employers are easily covered by the federal and/or state law, the calculation may be more complicated for some employers.

The federal WARN Act requires “employers” to provide advance notice of “mass layoffs” and “plant closings.”  “Employers,” as defined under the Act, have 100 or more full-time employees, or 100 or more employees who in the aggregate work at least 4,000 hours per week.

A “mass layoff” is a reduction in an employer’s workforce that results in an employment loss at a single site in a 30-day period for at least 500 employees, or for at least 50 full-time employees if they constitute at least 33 percent of the employer’s workforce.

A “plant closing” is 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 full-time employees.

Employers must provide 60-day advance written notice of a mass layoff or plant closing to each affected employee, the affected employee’s representative, the entity designated by the state to carry out rapid response activities, and the chief elected official of the unit of local government where the closing or layoff will occur.

Exceptions to the notice requirements may apply if the employer qualifies as a “faltering company,” or the mass layoff or plant closing is due to unforeseeable business circumstances or natural disasters.  It is important to note that these exceptions are narrowly construed, and employers must still provide notice as soon as practicable under these limited exceptions.  The WARN Act is further complicated by provisions that provide for aggregating employment losses over a rolling 90-day period.  Other considerations, such as the sale or relocation of a business, may also affect WARN Act requirements.

Employers that violate the WARN Act may be required to pay up to 60 days of back pay and benefits to each aggrieved employee.  Additional fines and attorney’s fees may also be imposed.

New Hampshire’s version of the WARN Act is similar to the federal WARN Act but provides even more protection to employees.  For example, the NH WARN Act cuts in half the threshold number of employment losses constituting a “mass layoff” under the Act.  The NH WARN Act also allows the state to assert liens against the assets of employers found liable under the Act.

Both the federal and NH WARN Acts can be difficult to navigate.  But employers should be aware of whether and when the federal or NH WARN Act applies to avoid the stiff consequences that could result from a violation.

About the Author: Kelley L. Stonebraker[3]

Endnotes:
  1. Worker Adjustment and Retraining Notification Act: https://www.doleta.gov/programs/factsht/WARN_Fact_Sheet_updated_03.06.2019.pdf
  2. RSA 275-F (“NH WARN Act”): http://www.gencourt.state.nh.us/rsa/html/XXIII/275-F/275-F-mrg.htm
  3. Kelley L. Stonebraker: https://orr-reno.com/our-people/kelley-stonebraker/

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