Warn Act Requirements

What are the WARN Act requirements?

The Warn Act requires that employers give a WARN notice at least 60 calendar days before any planned plant closure or mass layoff. The WARN Act requires that the employer must include the following information:

• An explanation of whether the layoff or closing is permanent or tem­porary of 6 months or less;
  
  
• The date of layoff or closing and the date of your separation (The employer has some leeway in predicting the dates on which workers will be separated. The employer may give notice that employees will be separated within a two-week, or 14-day, period after a certain date. If the employer chooses to use a 14-day period, he/she must give the employees notice 60 days before the first day of the 14-day period.);
  
  
• An explanation of bumping rights (see glossary and FAQs), if they exist; and
  
  
• Name and contact information for a person in the company who can provide additional information.

Exceptions to the Warn Act 60 Day Written Notice

WARN makes certain exceptions to the requirements when layoffs occur due to war, natural disasters, unforeseeable business circumstances, and faltering companies. There are two main circumstance in which an employer may not give the WARN Act required 60 days notice to employees,

Union

The first sit­uation is when a union represents the employees. In that case, the employer must give 60 days’ written notice to the union. It is the union’s decision how and when to give the employees notice.

Complex Seniority & Bumping System

The second situation is when there is a complex system of bumping rights. This situation will not arise often since most complex seniority systems are created under collective bargaining agreements and the union is the party required to be notified.

If there is a complex seniority/bumping system and no union is involved, the employer must make a good faith effort to determine who will actually lose their job as the result of the seniority system.

However, the employer is not required to predict exactly who will lose a job as a result of a complex bumping system. If the  employer cannot exactly predict who will lose their job as a result of a complex bumping system, the employer must give notice to the employees whose job is being eliminated even though that person may later bump another worker.

Bumping Rights Definition

WARN Act bumping rights provide for an employee to replace another employee due to a layoff or other employment action under the company’s policy, or bargaining agreement. In simple terms, bumping rights is a seniority system where the rights of workers with higher seniority whose jobs are abolished to replace (bump) workers with less seniority so that the workers who ultimately lose their job are not the worker whose job was abolished.

Employees Rights Under Bumping Rights

What obligations does an employer have to give notice when there is an established bumping rights system?

When there is no union contract but your employer has an established system of bumping rights, the WARN Act requires that the employer must attempt to identify the individuals who will ultimately lose their jobs as a result of the bumping system and provide the WARN notice to them. If the employer cannot reasonably identify those work­ers, it must give notice to the incumbent workers in the jobs being eliminated.

Warn Notice When Affected Workers Cannot Be Identified

Must the employer give notice to everyone even when all affected workers cannot be identified?

If, at the time the WARN Act notice is required, it is not possible for the employer to identify who may reasonably be expected to be laid off, then the employer must give notice to those workers whose jobs will be eliminated as a result of the plant closing or mass layoff. The employer may choose to give broader notice to workers likely to be affected by the seniority system, but it is not appropriate for an employer to provide a blanket notice to all of its employees.

Union and Bumping Rights for Warn Notice

In the case of a union contract, if the employer meets the requirements of the regulations and provides notification to the union representative as to the job classifications and the names of employees who are in those job classi­fications, is that notice sufficient to cover whatever bumping takes place later? Or does the employer have to provide notice about specific individu­als who are to be bumped eventually?

It is not necessary for the employer to identify those who could be bumped when providing a WARN notice to a union representative. The WARN Act requires that the employer address bumping rights in notices to employees who are not repre­sented by a union. This notice requires an indication of whether bumping rights exist but not an indication of the specific individuals who may be subject to bumping rights in the future. As previously mentioned, when an employer gives individual notice, that employer is required to make a good faith effort to iden­tify and provide notice to those workers who will actually lose their jobs as the result of the seniority system.

Bumping System Disclosure

Does the employer have to tell employees the system it has used to deter­mine who receives layoff notices? Does job tenure or seniority make a dif­ference?

No.  Under the WARN Act requirement, there is no bumping disclosure required unless there is an established system for reducing the workforce either in a company policy or as part of a collective bargaining agreement, the employ­er may select employees to be terminated according to its business needs.