WARN Act (Worker Adjustment and Retraining Notification)
Federal statute (29 U.S.C. §§ 2101-2109) requiring employers with 100+ full-time employees (or 100+ employees working at least 4,000 hours a week in total, excluding overtime) to provide 60 days advance written notice of plant closings or mass layoffs. "Plant closing" = shutdown resulting in employment loss for 50+ employees in 30-day period. "Mass layoff" = 500+ employees, or 50-499 if 33% of active workforce. Notice to affected employees, state dislocated worker unit, local elected officials. Damages: up to 60 days back pay and benefits per employee, never more than half the days the employee was employed.
The Worker Adjustment and Retraining Notification (WARN) Act is a federal statute requiring covered employers to provide 60 days advance written notice of plant closings or mass layoffs. WARN's purpose: provide workers and communities advance notice of significant job loss to facilitate transition assistance, alternative employment search, and economic adjustment. The statute applies to employers with 100 or more employees, not counting part-time employees, or 100 or more employees who together work at least 4,000 hours a week, excluding overtime. 29 U.S.C. § 2101(a)(1).
Coverage threshold
WARN applies to "employers" with 100 or more employees, excluding part-time employees, or 100 or more employees who together work at least 4,000 hours a week, excluding overtime. § 2101(a)(1). Coverage rules: (1) full-time employees, workers averaging more than 20 hours per week and worked at least 6 of last 12 months; (2) part-time employees, generally excluded from 100-employee count; (3) private employers (non-profit and for-profit). The "single site of employment" concept governs which group of workers the threshold applies to.
"Plant closing" defined
"Plant closing" means: (1) permanent or temporary shutdown; (2) of a single site of employment, or one or more facilities or operating units within single site; (3) resulting in employment loss; (4) for 50 or more full-time employees; (5) during any 30-day period. "Employment loss" includes terminations, layoffs exceeding 6 months, and reductions in hours of more than 50% during each month of any 6-month period (§ 2101(a)(6)).
"Mass layoff" defined
"Mass layoff" means employment loss at single site of employment (other than plant closing) of: (1) 500 or more full-time employees in any 30-day period; OR (2) 50 to 499 full-time employees if those employees represent 33% or more of active workforce. Aggregation: layoffs at the same site within 90-day period are typically aggregated to determine WARN trigger.
Notice requirements
WARN notice requirements: (1) 60 days advance written notice before plant closing or mass layoff; (2) recipients, affected employees (or their union representative); state dislocated worker unit; chief elected official of local government; (3) specific content, name and address of employment site; whether closing or mass layoff; expected date of action; expected separation date for individual employee; bumping rights information; name and contact for further information.
Exceptions to 60-day requirement
WARN provides three exceptions reducing notice requirement: (1) faltering company exception, available for plant closings only, not mass layoffs: actively seeking capital; notice would have precluded obtaining it (20 C.F.R. § 639.9(a)); (2) unforeseeable business circumstances, caused by sudden, dramatic, unexpected actions outside employer's control; (3) natural disaster. Exception application reduces but does not eliminate notice obligation, employer must give as much notice as practicable with brief statement of reason. Exceptions are narrowly construed.
Damages and remedies
WARN damages: (1) back pay, for each day of violation, up to 60 days but never more than one-half the number of days the employee was employed (§ 2104(a)(1)); (2) benefits for same period including health insurance, pension contributions; (3) attorney's fees, which the court may award to the prevailing party, employer or employee (§ 2104(a)(6)); (4) civil penalties, up to $500 per day for failure to notify local government, unless the employer pays each aggrieved employee within three weeks after ordering the shutdown or layoff (§ 2104(a)(3)). Damages calculation: number of days of inadequate notice × daily wage × number of affected employees. Substantial exposure even for technically-faulty notice.
WARN coordination with other obligations
WARN coordinates with other employment obligations: (1) COBRA, qualifying events triggered by termination; WARN notice does not satisfy COBRA notice; (2) severance agreements, WARN has no pay-in-lieu-of-notice option, but liability is reduced by wages paid for the violation period and by voluntary, unconditional payments the employer had no legal obligation to make (§ 2104(a)(2)); (3) collective bargaining, WARN notice to union representative satisfies notice to represented employees; (4) state UI; (5) OWBPA waivers. Sophisticated reductions in force coordinate WARN with all related obligations.
For a Texas employer near the thresholds, the analysis usually starts with a headcount at each single site of employment and a review of every separation in the 30-day and 90-day windows. § 2102(d); 20 C.F.R. § 639.5. Employers commonly send notices to the union or each affected employee, the state dislocated worker unit and the chief elected local official at the same time, and keep the business records behind any shortened-notice exception. Employees who received short notice or none commonly keep the notice, the separation date and pay records, because back pay runs day by day for the violation period. § 2104(a)(1).