State Layoff Notice Requirements and COVID-19
The federal Worker Adjustment and Retraining Notification (WARN) Act requires businesses that have at least 100 employees to give 60 days’ advance notice of any mass layoff or plant closing that is expected to last 6 months or longer to affected employees, unions, and local and state governments. The terms “plant closing” and “mass layoff” involves the following:
- An employer closes a facility affecting at least 50 employees (not counting part-time workers) at a single site of employment (defined as a “plant closing”); or
- An employer lays off at least 500 employees during a 30 day period at one site/lays off 50 to 499 employees, and those layoffs constitute 33% of the total active workforce (defined as “mass layoff”); or
- An employer announces a temporary layoff that involves either 1 or w above and extends the layoff for longer than 6 months; or
- An employer reduces the hours of work for at least 50 employees by 50% or more for each month in any 6-month period.
Generally, any employer covered by WARN that becomes aware that it will need to lay off or furlough 50 or more employees for more than 6 months will need to consider its obligations under WARN.
Meanwhile, several states have enacted “mini-WARN” laws providing employees with greater protections than the federal WARN Act and/or require additional advance notice requirements.
Federal WARN (and a number of states with their own mini-WARN laws) includes certain exceptions, including when layoffs are a result of “unforeseeable business circumstances”. But as of this writing there is no definitive answer as to whether COVID-19 qualifies as an unforeseeable business circumstance under the federal law. A few states that include this or a similar term have addressed COVID-19’s applicability (such as Hawaii, New York and Vermont below) to this exception.
In this article, we will provide a brief synopsis for any state that has its WARN law and/or any notice requirements for private employers beyond the federal law. For further details about any of the state laws, visit your state Layoff Topic Analysis page. We will also note any exceptions to notice requirements or relevant changes or notices that states have made in the wake of the COVID-19 pandemic.
COVID-19-related WARN exception: California has its own California WARN Act.) However, Executive Order N-31-20, signed by Governor Gavin Newsome March 17, 2020, suspended the requirements that an employer provide 60 days’ notice, and consistent with federal WARN, instead “gives as much notice as is practicable, and, at the time notice is given, provides a brief statement of the basis for reducing the notification period.” The notice must include 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.” It also notes that for the period of March 4, 2020 “through the end of this emergency” employers will not face liabilities or penalties under California WARN.
State WARN: The Delaware WARN Act has a lower “total employee” threshold triggering its requirements than the federal WARN Act. The federal law applies to employers with 100 or more full-time employees or 100 or more employees who work at least a combined 4,000 hours per week (excluding overtime). The Delaware law also applies to employers with 100 or more full-time employees, but it covers employers of 100 or more employees (including part-timers) who work at least a combined 2,000 hours per week.
Additional notice requirements for layoff: Except in the case of a labor dispute, whenever (1) 25 or more workers employed in one establishment are separated on the same day, (2) for the same reason, and (3) the separation is (i) permanent, (ii) for an indefinite period, or (iii) for an expected duration of 7 or more days, the employer shall within 48 hours following such separation, complete and furnish the following forms to the local office of the Department of Labor nearest its place of business: Form DOL-402, “Mass Separation Notice (in duplicate)” and Form DOL-402A, “Mass Separation Notice (Continuation Sheet).”
COVID-19-related additional responsibility for employers—filing for unemployment on behalf of employees. As a result of COVID-19, the Georgia Department of Labor has implemented an Emergency Rule that requires employers to “file partial claims on behalf of their employees whenever it is necessary to temporarily reduce work hours or there is no work available for a short period. Any employer found to be in violation of this rule will be required to reimburse GDOL for the full amount of unemployment insurance benefits paid to the employee.”
State WARN: Hawaii’s Dislocated Workers Act requires employers with 50 or more employees in the preceding 12-month period to give 60 days’ written notice of a “closing” or “divestiture” to affected employees and the state Department of Labor and Industrial Relations.
Information on exceptions related to economic crisis: In a Hawaii Workforce Development Council FAQ on WARN, they provided an answer to the question: “Is an economic crisis considered to be an unforeseen business circumstance?” The answer was that “If an employer believes their situation is the result an economic crisis, it may apply the unforeseen business circumstance exception; however, there could be a burden on the employer to prove why it could not plan 90 days in advance”
State WARN: The Illinois Worker Adjustment and Retraining Notification Act (IL WARN) requires covered employers to give their affected employees 60 days’ notice of a mass layoff, relocation, or employment loss to affected employees, union representatives of affected employees, the Department of Commerce and Economic Opportunity, and the chief elected official of each municipality and county where an employment loss, relocation, or mass layoff occurs.
Employers must comply with IL WARN if they have:
- 75 or more employees, excluding part-time employees; or
- 75 or more employees who, in the aggregate, work at least 4,000 hours per week (exclusive of hours of overtime).
Mass layoff means a reduction in force, which is not the result of a plant closing, and results in an employment loss at the single site of employment during any 30-day period for (1) at least 33 percent of the employees (excluding any part-time employees) and at least 25 employees (excluding any part-time employees); or (2) at least 250 employees (excluding any part-time employees).
Information on exceptions. There are no new exceptions to the Illinois WARN law notice requirements due to COVID-19. However, the law stipulates that exceptions can be made if the Department of Labor “determines the need for a notice was not reasonably foreseeable at the time the notice would have been required.”
State WARN: The Iowa Worker Adjustment and Retraining Notification Act (Iowa WARN) requires employers with 25 or more full-time employees to provide at least 30 days’ advance written notice of a business closing or mass layoff.
Additional notice requirements: Under the Maine Severance Pay Act, unless a plant closing is a result of unforeseen circumstances or physical calamity, the employer must give 90 days’ notice if it plans to terminate the establishment or to move the establishment out of Maine. Within 7 days of a mass layoff of 100 or more employees, a covered employer must notify the State of the expected duration of the layoff.
We do not have any information at this time to indicate whether, according to the Maine DOL, COVID-19-related layoffs apply to the bold-faced exception noted above.
Additional notice requirements: Maryland law requires employers to give notice to their local Office of Unemployment Insurance when laying off 25 or more employees for a common reason for periods in excess of 7 days. For more details, visit the Maryland DOL’s Displaced Workers page.
Voluntary notice guidelines: Maryland’s voluntary “quick response” program is an early-warning incentive program, designed to minimize the adverse effects of a shutdown to employers, employees, and communities. The program provides that employers with 50 or more employees (as opposed to 100 under the WARN Act) that plan to relocate, close, or reduce their workforce over a 3-month period, by the greater of 25 percent or 15 employees, should give workers advance notice of at least 90 days, if possible.
Additional notice requirements: Massachusetts law contains suggested voluntary standards of corporate behavior in plant-closing situations. Employers financed, insured, or subsidized by a quasi-public agency of the commonwealth must agree to accept these standards. Those employers must provide the longest practicable advance notice and at least 90 days’ notice or equivalent benefits to employees in the event of a plant closing or partial closing.
Massachusetts law also requires employers with 50 or more employees “promptly” to notify the Massachusetts Department of Career Services in the event of a plant closing or partial closing.
COVID-19 related notice requirement: Among steps recently provided to employers by the Michigan DOL in the wake of COVID-19, it says that employers must complete an “Unemployment Compensation Notice to Employee” and provide it to each employee separated from its employment for the purposes of filing a claim for unemployment benefits.
Additional notice requirements: The commissioner of employment and economic development encourages employers considering a plant closing, substantial layoff, or relocation of operations to give notice to the commissioner, the local government, the employees, and their union, if applicable. Employers providing notice of a plant closing, substantial layoff, or relocation of operations under the federal WARN Act must report to the commissioner the names, addresses, and occupations of the employees that will be or have been terminated.
State WARN: New Hampshire WARN requires that an employer who orders a mass layoff or plant closing must, at least 60 days before its effective date, give written notice of the order to (a) the affected employees and their representatives; (b) the N.H. Department of Labor; (c) the N.H. Attorney General; and (d) the senior official in the N.H. municipality within which the mass layoff or plant closing will occur.
“Mass layoff” means a reduction in force which (a) is not the result of a plant closing and (b) results in an employment loss at a single job site in New Hampshire during any 30-day period for at least 250 employees, excluding part-time or seasonal employees, or at least 25 employees, excluding any part-time or seasonal employees, if they constitute 33 percent of the full-time employees of the employer. “Plant closing” means the permanent or temporary shutdown of a single job site in New Hampshire, or one or more facilities or operating units within a single site, if the shutdown results in an employment loss during any 30-day period for 50 or more employees, excluding part-time employees.
State WARN: The Millville Dallas Airmotive Plant Job Loss Notification Act (or New Jersey WARN) tracks the federal law in some ways, but has very important differences such as: 1) A New Jersey WARN notice must contain more information than a federal WARN Act notice and 2) Notice must be provided to more parties than under federal law.
Meanwhile, effective July 19, 2020, employers with at least 100 employees must provide their workers 90 days’ notice before a large layoff, plant closing, or transfer. Under the new law, notice must be provided if 50 or more full-time employees are impacted.
State WARN: New York WARN applies to businesses with at least 50 employees within NY state (excluding part-time employees) or 50 or more employees (including part-time employees) who work in the aggregate at least 2,000 hours per week to provide written notice 90 calendar days before taking any of the following actions: (1) a “mass layoff” resulting in an employment loss at a single site of employment during any 30-day period, beginning on the date of the first employment loss, for either: (a) at least 25 employees constituting at least 33 percent of the employees at the site (excluding part-time employees); or (b) at least 250 employees (excluding part-time employees); (2) a “reduction in hours” of work of more than 50 percent during each month of any consecutive 6-month period for employees who are not participating in a shared work program and affects either (a) at least 25 employees constituting at least 33 percent of the employees at the site (excluding part-time employees); or (b) at least 250 employees (excluding part-time employees); (3) a “plant closing” affecting 25 or more full-time employees.
COVID-19 information related to NY WARN: The New York Department of Labor has stated that the “WARN Act requirement to provide 90 days’ advanced notice has not been suspended because the WARN Act already recognizes that businesses cannot predict sudden and unexpected circumstances beyond an employer’s control, such as government-mandated closures, the loss of your workforce due to school closings, or other specific circumstances due to the coronavirus pandemic [Emphasis provided] If an unexpected event caused your business to close, please provide as much information as possible to the Department of Labor when you file your notice about the circumstances of your closure so we can determine if an exception to the WARN Act applies to your situation.”
COVID-19 -related additional notice requirements. Effective April 14, North Carolina employers must provide employees with notice of the availability of unemployment compensation at the time of separation from employment. As per the North Carolina Division of Employment Security (DES), the notice “shall inform employees of the following:
- Unemployment insurance benefits are available to workers who are unemployed and who meet the State’s eligibility requirements;
- Employees may file a claim in the first week that employment stops, or work hours are reduced;
- Employees may file claims online at des.nc.gov or by telephone to (888) 737-0259.
- Employees must provide DES with the following information for DES to process the claim:(a) full legal name;(b) social security number; and(c) authorization to work (if the employee is not a U.S. citizen or resident).
- Employees may contact DES at (888) 737-0259 and select the appropriate menu option for assistance.”
Additional notice requirements: Employers are required to submit advance notice to Job Service North Dakota of “mass separations” (i.e., permanent or temporary layoffs of 25 or more workers in a single establishment for an expected duration of 7 days or more). Employers must provide Job Service with a list containing the names and social security numbers of the workers affected. If the employer has no advance knowledge of a mass separation, then they have 48 hours after the mass separation to provide notice. Employers must provide all separated workers instructions to contact the public employment service office.
Additional notice requirements: Employers that lay off or separate within any seven-day period 50 or more individuals because of lack of work must furnish notice to the director of Jobs and Family Services of the dates of layoff or separation and the approximate number of individuals being laid off or separated. The notice must be furnished at least 3 working days before the date of the first layoff or separation. At the time of the layoff or separation, the employer must furnish to the individuals and to the director information necessary to determine the individual’s eligibility for unemployment compensation.
Additional notice requirements: Employers must provide notice of a plant closing or mass layoff under WARN to the state Office of Community Colleges and Workforce Development.
Additional notice requirements: Employers with 50 but not more than 99 full-time employees must notify employees of a reduction in operations. The employer must then notify the commissioner of Labor and Workforce Development. There’s no time requirement as to when notice must be given, although the intent probably is that there be some notice before the reduction occurs. “Reduction in operations” is defined as the closure or partial closure of a workplace, modernization of a workplace, relocation to another site located more than 50 miles from the original location, or implementation of new management policy within the workplace. To trigger the statute, any of those events must put 50 or more employees permanently or indefinitely out of work for 3 months.
COVID-19 information: The Tennessee Department of Workforce Development includes the following statement addressing COVID-19: “Should an employer need to stop conducting business due to the COVID-19 virus, the employer may contact the TDLWD at 844-224-5818 to discuss the options available for affected employees.
COVID-19-related WARN exception: Vermont has its own version of WARN—the Notice of Potential Layoffs Act (NPLA) (For more details, see the Vermont Layoff topic analysis.) However, as the Vermont Department of Labor (DOL) explains on its website, the NLPA “provides exceptions to that rule in the event that the business closing or mass layoff is caused by business circumstances that were not reasonably foreseeable at the time the 45-day notice would have been required; and/or the business closing or mass layoff is due to a disaster beyond the control of the employer.” Therefore, the VT DOL announced that it “does not intend to enforce the provisions of the Notice of Potential Layoffs Act against businesses who are forced to lay off employees due to the effects of the COVID-19 pandemic.”
Additional notice requirements: With certain exceptions, businesses employing 50 or more employees within the state must provide written notice 60 days before implementing a mass layoff that affects: (1) at least 25 percent of the employer’s workforce or 25 employees, whichever is greater; or (2) at least 500 employees. Such businesses must also provide the same written notice of business/plant closings affecting 25 or more employees. Employers must provide at least 60 days’ advance written notice of a mass layoff and/or business/plant closing to affected employees, collective bargaining unit representatives, and specified units of government.
This is an employer resource made available by EverythingHR from our partner, BLR. Additional resources are available to our members via our website and our HR consultants, which are available for phone conversations to answer your COVID-19 questions. To learn more about membership, please visit www.EverythingHR.com, call (833) 447-9111 or email us at ClientSuccess@EverythingHR.com