There are three exceptions to the notice requirements in the WARN Act that may apply to plant closings or layoffs resulting from COVID-19: (1) the “unforeseeable business circumstances” exception; (2) the “natural disaster” exception; and (3) the “faltering company” exception. Most of these laws apply to businesses with fewer employees than the 100-employee federal WARN threshold. Specifically, New Jersey amended the … However, we also litigate in federal and state courts throughout the nation. The California WARN Act requires covered employers to provide advance notice to employees affected by plant closings and mass layoffs. An employer’s … Not necessarily.  For one thing, some statements in the guidance are so simplified that they are inaccurate.  For example:  The FAQs state the WARN triggers are judged “during any 90-day period.”  This is incorrect.  The WARN triggers are judged first over a 30-day period.  Only if WARN is not triggered over a 30-day period is a 90-day aggregation period used, and even then there is an exception that may apply.Â, The FAQs state the mass layoff trigger turns, in part, on whether “1/3” of the worksite’s total workforce is affected.  The standard is 33%, not 1/3 (33.3333%).  If an employer is trying to stay just under the 33% trigger, using the incorrect 1/3 standard could cause an employer to trigger WARN when it thought it was avoiding WARN.Â. Employers in one of the mini-WARN states should consult with counsel to analyze whether their particular workforce reduction constitutes a triggering event under these laws. Gavin Newsom issued Executive Order N-31-20 (the “Order”) suspending the normal notice requirements mandated in California’s WARN Act for mass layoffs. Evidence that the company has consulted with counsel will support a showing of commercially reasonable business judgment. We are also particularly adept at providing strategic labor advice, handling complex NLRB matters, corporate and election campaigns. Federal WARN creates several exceptions to the 60-day notice requirement, including one for “unforeseen business circumstances” that is facially applicable to this pandemic. The FAQs do not mention the exception for natural disasters.  The WARN regulations state the natural disasters exception applies only to the direct results of a natural disaster, and in any event WARN notice must be provided as soon as practicable.  Whether that regulation is a valid interpretation of the statute is an open question.  The FAQs also do not discuss any of the case law, including cases that have held that closures imposed by governmental order do not require WARN notice.  For government-ordered closures, the FAQs refer only to the unforeseeable business circumstances exception. The WARN Act provides for limited exceptions to the 60-day notice requirement, but there is no precedent for application in the wake of a pandemic. The Act sets forth two exceptions that should be considered. In general, there may be ways to mitigate the absence of the exemption in these states. Is WARN notice required of a temporary layoff (furlough)? As companies go through the decision-making process related to these layoffs, they should make sure they stay compliant with … By collecting this information, we learn how to best tailor this site to our visitors. Thus, federal WARN notice will not be triggered by short-term furloughs. Yes, according to the FAQs, which point out that the regulations permit any reasonable method of delivery that is designed to ensure receipt.  This appears to be the DOL’s first express endorsement of emailed WARN notice. And, do not dispense with notice entirely; provide all WARN notices as soon as practicable. COVID-19 has triggered an economic downturn that in turn has led to a historic number of layoffs and unemployment claims. Under this exception, notice requirements are relaxed when the employment loss is triggered by a “sudden, dramatic, unexpected action or condition outside the employer’s control.”  20 C.F.R. Of the nine mini-WARN states, California, New Jersey and Tennessee do not provide a safe harbor for unforeseen business circumstances, although California’s governor has reacted to the current emergency by issuing an order that creates one for layoffs relating to COVID-19 conditions. Over the weekend, the Department of Labor published Frequently Asked Questions (FAQs) addressing COVID-19 issues under the federal Worker Adjustment and Retraining Notification Act (WARN). As employers around the globe prepare their businesses and workforces for the unprecedented Coronavirus (“COVID-19”) pandemic, some of these employers will face the prospect of layoffs, reduction in pay or hours or other workforce reductions that implicate the Worker Adjustment and Retraining Notification (“WARN”) Act … ” ) and ( 3 ) of any mass layoff, relocation, or.... 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