Employees: Can my employer pay me for the 60 days instead of sending me a WARN Notice?
Question presented:
What if my employer pays me for the 60 days instead of sending me a WARN notice?
We invite your attention to our disclaimer.
WARN requires 60 calendar days’ written notice. The law makes no provision for any alternative such as pay in place of a notice.
While an employer who pays workers for 60 calendar days instead of giving them proper notice is in violation of WARN, the provision of pay and benefits in place of a notice is a possible option.
Because WARN provides for back pay and benefits for the period of the violation for up to 60 days, generally this approach by an employer—pay in place of notice—means that the employer has already met the penalty specified in the Act.
This approach may make it difficult for workers to receive Rapid Response assistance that is usually carried out at the work site. Workers who are given pay in lieu of notice and who need assistance should get in touch with their One-Stop Career Center.
Legal reference
The California Worker Adjustment and Retraining Notification Act, Lab. Code, § 1400 et seq., forbids an employer from ordering a mass layoff unless the employer gives 60 days’ notice to the employees affected by the order and to various government entities. § 1401, subd. (a). MacIsaac v. Waste Management Collection & Recycling, Inc., 134 Cal. App. 4th 1076
Scope & Definitions, Mass Layoffs
Lab. Code, § 1401, subd. (a), prohibits an employer from ordering a mass layoff at a covered establishment unless the employer gives 60 days’ written notice of the mass layoff to (1) the employees of the covered establishment affected by the order and (2) the Employment Development Department, the local workforce investment board, and the chief elected official of each city and county government within which the termination, relocation, or mass layoff occurs. Lab. Code, § 1401, subd. (a). MacIsaac v. Waste Management Collection & Recycling, Inc., 134 Cal. App. 4th 1076
In Lab. Code, § 1400, the California Legislature has set out the definition of a number of key terms used in the California Worker Adjustment and Retraining Notification Act (WARN Act), Lab. Code, § 1400 et seq. Section 1400, subd. (d), defines “mass layoff.” Under that provision, a “mass layoff” is a layoff during any 30-day period of 50 or more employees at a covered establishment. § 1400, subd. (d). The word “layoff,” in turn, is defined in the immediately preceding subdivision as a separation from a position for lack of funds or lack of work. § 1400, subd. (c). Thus, the plain language of the relevant provisions of § 1400 and Lab. Code, § 1401 indicates that the notice obligation is triggered for employers operating covered establishments when 50 or more employees are separated from their positions within a 30-day period. MacIsaac v. Waste Management Collection & Recycling, Inc., 134 Cal. App. 4th 1076