What conditions must an employer satisfy to qualify for the Executive Order’s suspension of the California WARN Act’s 60-day notice requirements?

An employer seeking to rely on the Executive Order’s suspension of the California WARN Act’s 60-day advance notice requirement must satisfy the following three conditions:

(1) The employer’s mass layoff, relocation or termination must be caused by COVID-19-related “business circumstances that were not reasonably foreseeable at the time that notice would have been required.”

Note: The Executive Order states that such “business circumstances” should be understood to be consistent with the identical exemption under the federal WARN Act. Exec. Order N-31-20 § 2(iii) (noting 29 U.S.C. § 2103(b)(2)(A) and 20 C.F.R. § 639.9(b)). Notably, the U.S. Department of Labor has interpreted such “business circumstances” to include “[a] government ordered closing of an employment site that occurs without prior notice.” 20 C.F.R. § 639.9(b).

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(2) The employer must provide written notices to:

  1. Employees affected by the mass layoff, relocation or termination;
  2. EDD, the Local Workforce Development Board and the chief elected official of each city and county government within which the termination, relocation, or mass layoff occurs.

(3) The employer must provide written notice that satisfies the following requirements:

    1. Give as much notice as is practicable (i.e., reasonably possible) at the time notice is given.
Note: The Executive Order provides that this condition should be read to be consistent with its usage in the federal WARN Act. Exec. Order N-31-20 § 2(ii) (noting 29 U.S.C. § 2102(b)(3)). Thus, case law interpreting this provision of the federal WARN Act can provide guidance. See, e.g., Carlberg v. Guam Indus. Servs., 2017 WL 4381667, at *3 (D. Guam Sept. 30, 2017) (citing cases).
    1. Provide a brief statement as to why the 60-day notification period could not be met.
    2. Include the following information in the notice to each affected employee:
      1. A statement as to whether the planned action is expected to be permanent or temporary and, if the entire location is to be closed, a statement to that effect
      2. The expected date when the plant closing or mass layoff will commence and the expected date when the individual employee will be separated
      3. An indication whether or not bumping rights exist
      4. The name and telephone number of a company official to contact for further information
      5. The following statement: “If you have lost your job or been laid off temporarily, you may be eligible for Unemployment Insurance (UI). More information on UI and other resources available for workers is available at labor.ca.gov/coronavirus2019.”
      6. The notice may include additional information useful to the employees such as, if the planned action is expected to be temporary, the estimated duration, if known.
    3. Include the following information in the notices separately provided to the EDD, the Local Workforce Development Board, and the chief elected official of each city and county government within which the termination, relocation, or mass layoff occurs:

i. Name and address of the employment site where the closing or mass layoff will occur.

ii. Name and phone number of a company official to contact for further information.

iii. Statement as to whether the planned action is expected to be permanent or temporary and, if the entire location is to be closed, a statement to that effect.

iv. Expected date of the first separation, and the anticipated schedule for subsequent separations.

v. Job titles of positions to be affected, and the number of employees to be laid off in each job classification.

vi. In the case of layoffs occurring at multiple locations, a breakdown of the number and job titles of affected employees at each location.

vii. An indication as to whether or not bumping rights exist.

viii. Name of each union representing affected employees, if any.

ix. Name and address of the chief elected officer of each union, if applicable.

x. The notice may include additional information useful to the employees such as, if the planned action is expected to be temporary, the estimated duration, if known.

Note: Please provide all of the information listed above to ensure timely processing of WARNs, and to limit the number of requests for additional information from a covered establishment.
Note: The Executive Order states that the written notices must meet the requirements of Labor Code Section 1401(b). Labor Code 1401(b) requires that an employer include in its notices the elements required by the federal WARN Act, which are listed in (3)(c) and (3)(d) above. See 29 C.F.R. §639.7.

Notably, the federal WARN Act requires notices to any representatives of employees affected (such as their union). Federal law requires the following information in the notice to any representatives of employees affected:

  1. The name and address of the employment site where the plant closing or mass layoff will occur, and the name and telephone number of a company official to contact for further information
  2. A statement as to whether the planned action is expected to be permanent or temporary and, if the entire plant is to be closed, a statement to that effect
  3. The expected date of the first separation and the anticipated schedule for making separations
  4. The job titles of positions to be affected and the names of the workers currently holding affected jobs
  5. The notice may include additional information useful to the employees such as information on available dislocated worker assistance, and, if the planned action is expected to be temporary, the estimated duration, if known.
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