Plant Closings

Plant Closings and Mass Layoffs (The Worker Adjustment and Retraining Notification Act) (29 U.S.C. s. 2101) (20 CFR Part 639)

In the event of a plant closing or a mass layoff, each representative of the affected employees, of if there is no such representative, each affected employee and the State must be given at least 60 days' notice before the effective date of the closing or layoff. (29 U.S.C. s. 2102(a))

This applies to employers with 100 or more fulltime employees or the equivalent. However, employees who have worked less than 6 months in the past 12-month period or those employees who worked on average less than 20 hours a week can be excluded from this count. (29 U.S.C. s. 2101(a)(1))

A "plant closing" is a permanent or temporary shutdown of a single site of employment, or one or more facilities or operating units within a single site of employment, if the shutdown results in an employment loss at the single site during any 30-day period for 50 or more employees, excluding any part-time employees. (29 U.S.C. s. 2101(a)(2))

A "mass layoff" is a reduction in force which results in an employment loss at the single site of employment during any 30-day period of (1) at least 33 percent of the employees and at least 50 employees (excluding in both cases any part-time employees) or (2) at least 500 employees (again excluding any part-time employees). (29 U.S.C. s. 2101(a)(3))

There is a 90-day rolling period for considering whether the requisite number of employees have suffered an employment loss for purposes of a "mass layoff". (29 U.S.C. s. 2102(d)

An "employment loss" means (1) an employment termination, other than a discharge for cause, voluntary departure or retirement, (2) a layoff exceeding 6 months, or (3) a reduction in hours of work of more than 50 percent during each month of any 6-month period. (29 U.S.C. s. 2101(a)(6))

Nonetheless an "employment loss" does not occur if the closing or layoff is the result of the relocation or consolidation of part or all of the employer's business and prior to the closing or layoff (1) the employer offers to transfer the employee to a different site of employment within a reasonable commuting distance with no more than a 6-month break in employment, or (2) the employer offers to transfer the employee to any other site of employment regardless of distance with no more than a 6-month break in employment and the employee accepts within 30 days of the offer or of the closing or layoff, whichever is later. (29 U.S.C. s. 2101()(b)(2)

There are several exceptions to the notice requirement:
- A faltering company that is actively seeking new capital or business in order to avoid a closing or layoff need not give advance notice where the company reasonably believes that such advance notice would prevent it from obtaining the needed capital or business. (29 U.S.C. s. 2102(b)(1)
- A company that suffers unforeseen business loss may give notice as soon as the plant closing or mass layoff becomes reasonably foreseeable. (29 U.S.C. s. 2102(b)(2)(A)

Layoffs or plant closings caused by a natural disaster. (29 U.S.C. s. 2102(b)(2)(B)
Layoffs and plant closings that are caused by the completion of a particular project do not require notice where the employees were hired with the understanding that their jobs were tied to that project. (29 U.S.C. s. 2103(1)
A bona fide strike or lockout does not constitute a plant closing or mass layoff. (29 U.S.C. s. 2103(2))

An aggrieved employee who suffers an employment loss in violation of this statute may recover back pay and benefits up to a maximum of 60 days but in no event more than half the days the employee was employed by the employer. The court, in its discretion, may allow the prevailing party reasonable attorneys' fees. The action can be brought in any U.S. District Court in which the violation is alleged to have occurred or in which the employer transacts business. If the employer had reasonable grounds for believing that the act or omission was not a violation of this statute, the court may, in its discretion, reduce the amount of the liability. (29 U.S.C. s. 2104)

State law most closely analogous to this statute is the proper source of the limitations for civil actions brought to enforce the WARN Act. North Star Steel Co. v. Thomas , 515 U.S. 29, 34 (1995)