Don’t Forget to Provide Another WARN Notice If the Employees’ Separation Date is Delayed

The federal Worker Adjustment and Retraining Notification Act requires certain employers to give 60 days’ written notice of mass layoffs and plant closings to impacted employees. A recent case reminds employers that if the original separation date is delayed, an updated WARN notice must be provided.

The WARN Act requires employers with 100 or more full-time employees to provide at least 60 calendar days’ advance written notice of a worksite closing affecting 50 or more employees, or a mass layoff affecting at least 50 employees and 1/3 of the worksite’s total workforce or 500 or more employees at a single site of employment during any 90-day period. Notice is provided to the impacted employees as well as designated government officials and union representatives, and there are technical requirements as to what the notice must contain.

The WARN regulations further provide that once an employer has provided initial notice, “[a]dditional notice is required when the date or schedule of dates of a planned plant closing or mass layoff is extended beyond the date or the ending date of any 14-day period announced in the original notice.” If the postponement is for 60 days or more, the notice is treated as a new notice. If less than 60 days, the updated notice must be given as soon as possible, with reference to the earlier notice, the revised date/14-day period, and the reasons for the postponement.

In Messe v. Bristol Compressors Int’l, LLC, employees were provided the WARN notice; however, some employees were retained for several months beyond the specified termination date. The U.S. Court of Appeals for the Fourth Circuit found that the employer failed to provide those employees with notice to which they were entitled under WARN, and had no statutory or regulatory basis for excusing such failure. The Fourth Circuit further found that it was not necessary for the employees to show that they were harmed by the failure of notice in order to sustain a WARN Act claim (which conflicts with a decision from the Fifth Circuit).

To avoid any chance of liability, regardless in which Circuit the employer is located, employers should take “warning” from this case and provide updated WARN notices if the original separation date is delayed for any employee.