Provided by: Jennifer Kirschenbaum, Esq.
Novmber 8, 2022
Question:
Hi Jennifer,
The recent Twitter commotion made me wonder whether the WARN Act applies to their situation and, more importantly, whether it applies to mine. Please let me know!
Dr. A
Answer:
Topical question! Yes, Elon should care... I've asked Clorissa Winders, Esq. to lay out the Warn Act, and here is what she has pulled -
Recent reports claim that Twitter employees plan to sue under the Worker Adjustment and Retraining Notification (WARN) Act (codified at 29 U.S.C. §§ 2101–2109). Let’s first dive into what the WARN Act is.
The WARN Act applies to business enterprises that employ 100 or more employees, or 100 or more employees, including part-time employees, who, in total, work at least 4,000 hours per week. and springs into action when there is a “plant closing” or a “mass layoff” (together a “Termination Event”). A plant closing occurs when there is a permanent or temporary shutdown of a single employment site or operating unit within an employment site, if that shutdown leads to 50 or more employees being terminated within a 30 day period. A mass layoff occurs when there is a reduction in employment at a single site of employment during any 30-day period for either at least 33% of employees and at least 50 employees, or at least 500 employees. Note, the WARN Act does not apply to part-time employees, defined as employees who work less than 20 hours per week or have been employed fewer than 6 of the 12 months preceding the notice date, and part-time employees are not used in the threshold calculations, unless otherwise specified.
If there will be a Termination Event, the employer must provide sixty (60) day's notice to each representative, or if none, each affected employee, and the State or State designated entity and the employer may not order the plant closing or the mass layoff until the end of the notice period.
Two (2) exceptions to this sixty (60) day notice period exists when (i) the employer was trying to seek capital or business to prevent the Termination Event and the notice would have negatively impacted that search and (ii) the closure is caused by a natural disaster.
This requirement does not apply where (i) the closing is of a temporary facility or the particular project or undertaking was completed and the employees were hired with the understanding that their employment would be terminated at the completion or (ii) when the Termination Event is the result of a strike or constitutes a lockout.
If there is a sale of part or all of the business, the seller is responsible for providing notice up to and including the effective date of the sale. After the date of the sale, the purchaser is responsible for providing notice.
Employers who violate the WARN Act are liable to EACH aggrieved employee for (i) back pay for each day of violation at a rate of compensation no less than the higher of (a) the average rate received by such employee during the last 3 years of employment or (b) the final regular rate received by such employee, and (ii) benefits under the employee benefit plan. This amount is reduced by any wages already paid to the employee, any voluntary unconditional payment by employer to employee and any payment by the employer to a third party or trustee on behalf of and attributable to the employee. The employer may also be liable for a civil penalty of up to $500 per day. The employer may use an argument of acting in good faith to reduce the penalties.
Questions on WARN or firing in general, feel free to email us for a time to talk.
