Exceptions to the WARN Act’s 60-Day Notice Requirement

There are certain situations in which a covered employer may order a plant closing or mass layoff before the end of the 60-day notice period required under the Worker Adjustment and Retraining Notification (WARN ) Act.  These situations include the following:

  • If, at the time that the 60-day notice would have been required, the employer was actively seeking capital or business which, if obtained, would have enable the employer to avoid or postpone the shutdown and the employer reasonably and in good faith believed that giving the 60-day notice would have precluded the employer from obtaining the needed capital or business;
  • If the closing or mass layoff is caused by business circumstances that were not reasonably foreseeable as of the time that the 60-day notice would have been required; or
  • If the plant closing or mass layoff is due to any form of natural disaster, such as a flood, earthquake, or a severe drought.

See 29 U.S.C. § 2102(b).  If any of these exceptions apply, the employer must give “as much notice as is practicable,” and the employer must include in the notice “a brief statement of the basis for reducing the notification period.”

In addition, the WARN Act does not apply to a plant closing or mass layoff if:

  • The closing is of a temporary facility or the closing or layoff is the result of the completion of a particular project or undertaking, and the affected employees were hired with the understanding that their employment was limited to the duration of the facility or the project or undertaking; or
  • The closing or layoff constitutes a strike or constitutes a lockout not intended to evade the requirements of the WARN Act.

See 29 U.S.C. § 2103.

About Michael Miller

Michael is a Chambers-rated attorney in Briggs and Morgan's Employment, Benefits, and Labor group and is head of the firm’s Employment Law Counseling and Compliance practice group. He has 25 years experience counseling employers to prevent unwanted litigation and advises companies of ongoing changes in federal, state and local employment law. Michael advises employers in all areas of employment law including discipline and discharge, leaves of absence, wage and hour compliance, non-compete and confidentiality agreements, affirmative action plans, background checking, and drug/alcohol testing. For Michael's full bio, click here.

Posted on September 30, 2011, in Mass Layoffs and Plant Closings and tagged . Bookmark the permalink. Leave a comment.

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