WARN Act Violation Company Employer Closed COVID-19 No 60 Day Notice

Question Presented:

My employer has permanently closed due to COVID-19 but did not provide a 60-day notice stating that the loss of business from the virus was an unforeseen business circumstance. Does this violate my rights under the WARN Act?

Under the WARN Act, employers can claim an exception to the 60-day notice requirement for unforeseeable business circumstances.

The exception to the advance notice requirement applies to worksite closings and mass layoffs caused by business circumstances that are not reasonably foreseeable at the time that 60-day notice would have been required.

An important indicator of a business circumstance that is not reasonably foreseeable is that the circumstance is caused by a sudden, dramatic, and unexpected action or condition outside the employer’s control. This can include an unanticipated and dramatic major economic downturn.

A government ordered closing of an employment site that occurs without prior notice also may be an unforeseeable business circumstance.

Similarly sudden, dramatic, and unexpected action outside the employer’s control, announced and implemented swiftly, such that the employer is unable to provide 60 days’ notice may also fall within this exception to the 60-day notice requirement.

When invoking an exception to the WARN Act’s 60-day notice requirement, a covered employer is still required to:

1. Give as much notice to employees (or the employees’ representative(s)) and State and local government officials as is practicable (which may, in some circumstances, be notice after the fact); and

2. Include a brief statement of the reason for giving less than 60-days’ notice along with the other required elements of a WARN notice.

The WARN Act is enforced by private legal action in any U.S. District Court for any district in which the violation is alleged to have occurred or in which the employer transacts business. Thus an employer may need to prove that it could not foresee the circumstances necessitating the worksite closing or mass layoff if such enforcement action is brought.

Any dispute regarding the interpretation of the WARN Act will be determined on a case-by-case basis in such a court proceeding. The role of the U.S. Department of Labor is limited to providing guidance and information about the WARN Act; such guidance is not binding on courts and does not replace the advice of an attorney.