My employer permanently closed due to Covid-19, but they did not provide a 60-day notice or state that coronavirus caused unforeseen business circumstances. Is this a violation of my WARN Act rights?

We invite your attention to our disclaimer.

Employers may claim an exception to the WARN Act notice requirement due to unforeseen business circumstances. This includes unexpected, sudden, and dramatic conditions outside of the employer’s control, such as a sudden economic downturn. The government-ordered closure of business, such as happened due to Covid-19, could be counted as an unforeseeable business circumstance if it happened without notice.

However, when an employer claims this exception, they must still meet both of the following requirements:

  • They must give their employees, employees’ representatives and local government officials as much notice as reasonably possible.
  • They must explain the reduced notice in their WARN notice.

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


The California Worker Adjustment and Retraining Notification Act (Lab. Code, § 1400 et seq.) defines a “layoff” to mean a separation from a position for lack of funds or lack of work (§ 1400, subd. (c)). Under its plain meaning, “separation” means an action of moving apart, and does not contain a temporal component. Under a commonsense understanding, a separation can be permanent or it can be temporary. Thus, the fact that the work stoppage was temporary does not logically take the action outside the scope of the statutory duty. This conclusion is bolstered by the statutory context in which the word “separation” appears. The Legislature used the phrase “from a position” immediately after the word “separation” (§ 1400, subd. (c)). The concept of being separated from a position does not suggest a requirement that the employment relationship be severed. The “separation from the position” definition does not suggest a severance from the employment relationship must occur before the notice duty triggers. Instead, it encompasses a temporary job loss, even if some form of the employment relationship continues and the employees are given a return date. When viewing the plain meaning of the statutory language, there does not appear to be any permanency requirement contained in the act’s “layoff” or “mass layoff” terms (§ 1400, subds. (c), (d)).  The Internat. Brotherhood of Boilermakers, etc. v. NASSCO Holdings Inc., 17 Cal. App. 5th 1105.

Legislation, Interpretation
In addition to lowering the threshold numbers for triggering the required notice under the California Worker Adjustment and Retraining Notification Act, Lab. Code, § 1400 et seq., the California Legislature changed the language used in the federal Worker Adjustment and Retraining Notification Act’s definition of a “mass layoff.” It is presumed the California Legislature did not intend to adopt the exact same definition of a “mass layoff.” By using different words, it is reasonable to conclude the California Legislature intended some change from the federal law. The Internat. Brotherhood of Boilermakers, etc. v. NASSCO Holdings Inc., 17 Cal. App. 5th 1105

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