Read Microsoft Word - Stay Current Federal and State WARN Act Summary.DOC text version

March 2011

Federal and State WARN Act Summary

BY ETHAN LIPSIG, ALLAN S. BLOOM, M'ALYSSA C. MECENAS & ALEXANDER W. WOOD

This chart briefly summarizes notice requirements under the federal Worker Adjustment and Retraining Notification ("WARN") Act, 29 U.S.C. §§ 2101-2109, and state WARN analogs for employers to whom those laws apply.

Event at Site of Employment* Layoffs* in 30day period Federal WARN Act Triggered If California WARN Act Triggered If New York WARN Act Triggered If Other State WARN Acts The states below had WARN Act analogs as of January 1, 2011; more likely will enact WARN Acts in the future. · Connecticut · Hawaii · Illinois · Iowa · Kansas · Maine · Maryland · Massachusetts · Michigan · Minnesota · New Hampshire · New Jersey · Ohio · Oregon · Pennsylvania · South Carolina · Tennessee · Washington · Wisconsin

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At least 50 laid off if the site has less than 152 employees*; At least 33% laid off if the site has between 152-1,515 employees; or At least 500 laid off if the site has 1,516+ employees

·

At least 50 employees* laid off* at site*

·

At least 25 employees* laid off at site if they represent at least 33% of workforce at site with less than 758 employees; or At least 250 employees laid off if site has at least 758 employees

·

Layoffs in 90day period

Same as above, but only N/A aggregate layoffs more than 30 days apart if they are related* and did not separately trigger the WARN Act* At least 50 laid off in 30-day period, or in 90-day period as explained in the preceding box Same as above Any number, but there must have been at least 75 employees at the site within the preceding year* Same as above, except the 75-employee threshold must be met at the building level Same as above, except the 75-employee threshold must be met at the operating unit level Apply total closure rule, but statute should be interpreted as not requiring notice if operations* are moved to a new site less than 100 miles away

Same as above; must measure average number of individuals employed over 90-day look back period to determine whether notice is or will be triggered At least 25 laid off in 30-day period at site due to permanent or temporary shutdown Same as above; threshold is at single site of employment level Same as above; threshold is at single site of employment level

Total closure of site

Total closure of building at multi-building site Total closure of an operating unit* (e.g., a department)at site Relocation* of operations

Same as above

Apply total closure rule but without counting employees offered transfers to location within reasonable commuting distance* or who accept the transfer* as having employment losses

Notice is required as to relocation of operations* to new site at least 50 miles away, no matter how many job losses occur. If relocation is closer, apply the total closure test, ignoring persons who are offered or accept transfers as under federal WARN Act.

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While this chart identifies situations in which WARN notice might be required, it is no substitute for careful analysis under the complex and often poorly articulated rules that WARN acts prescribe. Terms or concepts asterisked where they first appear have complex definitions that significantly impact whether federal, California, or New York WARN notice is required. Other state WARN analogs usually have similar defined term complications. Employers that do not give required notice generally are liable for back pay, benefits, and civil penalties for each affected employee for each day of defective notice, again subject to many technical rules. An employer can try to avoid or minimize WARN Act liability by using exit incentives, or by limiting the number of non­part-time employees terminated other than for cause on any day at any site of employment to the minimum triggering number (e.g., 50 under the federal WARN Act), minus one plus the number of non­part-time employees who were terminated at that site other than for cause in the preceding 89 days.

If you have any questions concerning federal or state WARN acts, please do not hesitate to contact any of the following Paul Hastings lawyers:

Los Angeles Ethan Lipsig 1.213.683.6304 [email protected] Stephen H. Harris 1.213.683.6217 [email protected] M'Alyssa C. Mecenas 1.213.683.6130 [email protected] New York Allan S. Bloom 1.212.318.6377 [email protected] Alexander W. Wood 1.212.318.6701 [email protected]

18 Offices Worldwide

Paul, Hastings, Janofsky & Walker LLP

www.paulhastings.com

StayCurrent is published solely for the interests of friends and clients of Paul, Hastings, Janofsky & Walker LLP and should in no way be relied upon or construed as legal advice. The views expressed in this publication reflect those of the authors and not necessarily the views of Paul Hastings. For specific information on recent developments or particular factual situations, the opinion of legal counsel should be sought. These materials may be considered ATTORNEY ADVERTISING in some jurisdictions. Paul Hastings is a limited liability partnership. Copyright © 2011 Paul, Hastings, Janofsky & Walker LLP. IRS Circular 230 Disclosure: As required by U.S. Treasury Regulations governing tax practice, you are hereby advised that any written tax advice contained herein or attached was not written or intended to be used (and cannot be used) by any taxpayer for the purpose of avoiding penalties that may be imposed under the U.S. Internal Revenue Code.

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