The Worker Adjustment and Retraining Notification Act (WARN Act) generally requires covered employers to provide written notice at least 60 days in advance of covered plant closings and mass layoffs. The notice must be given to specific persons – affected workers or their representatives (for example, a labor union), the state Rapid Response Dislocated Worker Unit, and local elected officials. The purpose of the WARN Act is to provide displaced workers and their families some time to prepare for the prospective loss of employment by looking for alternative employment, and, if necessary, entering a training or retraining program to obtain necessary skills to compete for available jobs. The advance notice also allows time for state and local officials to provide dislocated worker assistance.
The WARN Act applies to private for-profit businesses, private nonprofit businesses, and governmental or quasi-governmental entities that function in a commercial context and are separately organized from the regular government, if they employ either:
Regular federal, state, or local government entities that provide public services are not covered by the WARN Act.
Employees covered by and entitled to notice under the WARN Act include all hourly and salaried workers, as well as managerial and supervisory employees. Part-time employees who are not counted for purposes of determining whether an employer is required to provide notice under the WARN Act are still covered by the Act and entitled to notice if they work for a covered employer.
Employees on temporary layoff or leaves of absence who have a reasonable expectation of recall (for example, employees on workers’ compensation, medical, or maternity leave) are covered by the WARN Act.
The WARN Act does not apply to the following persons:
The notice requirements of the WARN Act are triggered when a covered employer does any one of the following:
In determining the number of employees who have suffered an employment loss as a result of a plant closing or mass layoff, the employer need not consider any employee who is terminated for cause or who voluntarily resigns or retires.
The speed with which businesses reacted to the COVID-19 pandemic, mostly in compliance with emergency declarations requiring non-life sustaining businesses to cease physical operations no doubt serve as a defense to claims based on the failure to provide the 60-days’ advance notice ordinarily required by WARN. But even when the original decision to close or engage in a mass layoff is unforeseen at the outset, businesses must still provide WARN notices as soon as practicable. As COVID-19 cases continued to affect workplaces, many businesses may be hit with new reasons to curtail their operations. Thus, employers need to be vigilant about providing WARN notifications “as soon as practicable” if new shutdowns occur.
The WARN Act does not apply:
The WARN Act’s basic requirement is that an employer must provide written notice to affected employees, including part-time employees, at least 60 calendar days prior to a plant closing or mass layoff. The notice may identify a 14-day period during which the employment loss will occur, without providing a specific date. When the employee is represented by a union, the employer must provide notice to the union – not the employee. The union then decides when and how to notify the employee. The local government’s chief elected official where the employment site is located and the State Rapid Response Dislocated Worker Unit must also receive notice of plant closings or mass layoffs.
A verbal announcement does not satisfy the notice requirements, even when the announcement occurs at an all-employee meeting. Notices to the media also do not satisfy the requirements of the WARN Act.
A notice sent to individual, unrepresented employees must be written in clear and easily-understood language and must contain the following information:
A WARN Act notice must also be sent to the state’s Rapid Response Dislocated Worker Unit and the chief elected official of the local government unit where the plant closing or mass layoff will take place, and it must contain the following information:
The requirements for the notice to be sent to the bargaining agent or union representative of affected employees are essentially identical to the requirements for the notice to the state Dislocated Worker Unit and local government officials.
One of the most confusing WARN Act rules is that part-time employees are not counted for purposes of triggering the WARN Act (but they are entitled to notice), while temporary employees are counted for purposes of triggering the WARN Act (but they are not entitled to WARN notice).
The WARN Act defines a “part-time” employee as one who is employed for an average of fewer than 20 hours per week or who has been employed for fewer than six of 12 months preceding the date on which notice is required, including workers who work full-time. Part-time employees are not counted for purposes of whether the WARN Act is triggered. However, if WARN is triggered, those part-time employees experiencing an employment loss are entitled to notice.
On the other hand, temporary employees are counted for purposes of whether the WARN Act is triggered. However, temporary employees are not entitled to notice even if they experience an employment loss.
The WARN Act is enforced through the federal or state courts. Employees, their unions, and local governments may bring individual or class action lawsuits against employers they believe are in violation of the WARN Act. However, a court does not have the authority to stop a plant closing or mass layoff.
Instead, failure to provide notice to an employee subjects the employer to liability in the amount equal to back pay and benefits for the period of violation, up to 60 days. For this reason, while not authorized by the WARN Act, some employers choose to provide these benefits instead of providing notice. While notice is required under the statute, if the employer pays the benefits then it has satisfied the penalty provided under the WARN Act.
Failure to provide notice to a unit of local government also subjects the employer to a civil penalty not to exceed $500 each day of the violation. The employer may avoid this penalty if it satisfies its liability to each affected employee within three weeks from the date of the plant closing or mass layoff. The court also has the discretion to reduce the penalty if it determines that the employer acted in good-faith and reasonably believed that it had not violated the WARN Act by failing to provide notice.
In any suit, the court may, in its discretion, award the prevailing party reasonable attorneys’ fees.
For general information concerning the WARN Act, contact:
For information regarding contacting a State Rapid Response Dislocated Worker Unit, contact the National Toll-Free Help Line at (877) 872-5627.
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