My employer has closed temporarily because of coronavirus, should I have received a WARN Act notice?
If your employer has closed temporarily and has furloughed or laid off staff for less than 6 months, then they need not provide a WARN notice.
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We invite your attention to our disclaimer.
If the layoff extends longer than 6 months, then your employer should have provided notice 60 days before the effective layoff date. Due to Covid-19, there may be business circumstances that are unforeseeable that might create permanent job losses or require your employer to extend the layoff. In this case, your employer must provide notice as soon as they reasonably can foresee the need for an extension.
If you or a colleague brings a private WARN Act action against your employer, your employer would need to provide evidence they could not have foreseen the circumstances that required the extension to the layoff.
Legal Reference
Legislation, Interpretation
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. Lab. Code, § 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.
Scope & Definitions, Employment Loss
Lab. Code, § 1402, governs the consequences of failing to give the required notice and specifically refers to the statutory notice as that required by Lab. Code, § 1401, subd. (a)(1), which includes the definitions contained in Lab. Code, § 1400. § 1402, subd. (a). Reasonably read, § 1402 does not reflect the California Legislature’s intent to use the code section governing damages to alter the meaning of the mass layoff and layoff triggers already defined in the statute. Moreover, the federal Worker Adjustment and Retraining Notification Act (on which the California Worker Adjustment and Retraining Notification Act, Lab. Code, § 1400 et seq., was patterned), defines “employment loss” to include a temporary loss of employment (a layoff for more than six months). 29 U.S.C. § 2101(a)(6). The Internat. Brotherhood of Boilermakers, etc. v. NASSCO Holdings Inc., 17 Cal. App. 5th 1105