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Laying Off Employees? 5 Times the WARN Act Doesn't Affect You

by Layla Bryant

Is your industrial plant preparing to close a facility and lay off employees? The Human Resource department's actions now can either keep their employer from being in legal jeopardy with federal law or put it in jeopardy. The basis for this distinction is how well you follow the rules of the Worker Adjustment and Retraining Notification (WARN) act.

This act stipulates that covered employers in covered situations must provide written notice of mass layoffs 60 days in advance. But is your company really responsible to adhere to the WARN act in your situation? Maybe not. Here are five scenarios that aren't covered by this law to help you understand your rights and responsibilities. 

1. Small Employers Aren't Included. Only businesses that meet the size and scope requirements must follow the WARN act. You must have at least 100 full-time employees. For the purposes of this act, employees hired within the last 6 months and those who work less than 20 hours per week don't count. 

2. Many Disasters Aren't Included. Not every plant closure can be foreseen. If your area suffers a hurricane, tornado, or earthquake which destroys the plant building, requiring 60 days of notice is implausible. Similarly, company disasters like fraud could be demonstrated as a disaster that couldn't have reasonably been foreseen. 

3. Temporary Projects Aren't Included. What if your plant site or large project was never intended to be permanent? If closure after a period of time or triggering event was always part of the plan — and employees or unions were made aware of this fact — then you generally don't have to provide a 60-day notice. 

4. 'Faltering' Companies Aren't Always Included. If your company has been struggling financially or operationally, it's probably actively trying to find new capital or investments. In this case, serving employees a 60-day notice could put the company's ability to survive at risk. If this is your situation, you may be exempt from making that early notice in what's known as a 'faltering company' exclusion. 

5. Businesses Being Sold May Not Be Included. If the company is being sold, its responsibility to the WARN act depends on when layoffs will occur. The original or selling company has responsibility for layoffs up to the date of the sale. The purchasing company is then responsible for notice after that date. 

Do your employer's layoffs fall into any of these categories? If so, it may have additional rights and more leeway under the WARN act. The best way to decide what to do now is to consult with an experienced employment attorney. They will help the HR department craft the right notices and ensure that both the company's and employees' rights are respected. Call a local HR attorney today to make an appointment.