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You are Here: Home > Blog > Must my employer give me layoff notice?

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Employee Rights and Related Matters

Must my employer give me layoff notice?

Wednesday, March 31st, 2010

If your employer is planning to discharge you in a mass layoff, then your employee rights might require your employer to give you written advanced layoff notice so that you may seek a new job or skills training.

Under the circumstances summarized below, the Federal Worker Adjustment and Retraining Notification Act (WARN Act) requires covered employers to give affected employees up to 60 days of advanced layoff notice, prior to mass layoffs or plant closings.

Generally, private-sector employers with 100+ full-time employees are “covered,” meaning that they must abide by the WARN Act (exceptions apply). Covered employers may give fewer than 60 days layoff notice under the Act, when layoffs are the result of shutting down failing companies, unforeseeable business circumstances or natural disasters.

Covered employers must give advanced notice when a layoff of over six months at a single site of employment involves 500+ full-time workers; or alternately, 50-499 workers, if the number of laid-off workers comprises at least one-third of the full-time workforce at a single site.

Covered employers must also give advanced layoff notice for a plant closing of over six months and involving 50+ full-time workers. A “plant closing” includes shutting down one or more facilities or operating units within a single site of employment.

Both hourly and salaried workers are entitled to receive advanced layoff notice under WARN, including managers, supervisors and part-time workers. WARN does not recognize the pay in lieu of notice concept, but a loophole might allow employers to get away with it.

States may enact equivalent laws, generally referred to as “mini-WARN Acts,” that provide the same or better employee layoff protection than the Federal WARN Act. In states that have mini-WARN Acts, employees are protected by whichever law at the state or federal level affords the most protection.

Under the WARN Act or an equivalent state law, your employer must continue to pay you and grant you the benefits to which you’re entitled through your advanced layoff notice period, even if your employer does not require you to work. Such pay is your regular pay, not severance pay.

It’s not unusual for employers to escort employees out the door shortly after giving advanced layoff notice to the employees, even though official separation dates have yet to occur. Employers do so to prevent theft, sabotage, bad-mouthing and watercooler rumors. Regardless, the WARN Act requires employers to pay the employees through their separation dates, even though the employers don’t require the employees to work.

The WARN Act is enforced by U.S. district courts. If you wish to seek damages (back pay and benefits) because your employer failed to abide by the layoff notice requirements of the WARN Act, then you may file an individual or class-action lawsuit in a district court.

Consult an attorney about filing a lawsuit under the WARN Act (or an equivalent state law). WARN authorizes a court to grant you the right to collect reasonable attorney’s fees as part of your settlement.

This is just a summary of the WARN Act. For more about advanced layoff notice, lawsuits and other matters under the WARN Act for both employees and employers, see The Worker Adjustment and Retraining Notification Act (WARN) from the U.S. Department of Labor or consult an attorney.

For information regarding layoff notice under a so-called mini-WARN Act in your work state, if it has such a law, start by browsing the Web site of the relevant state labor department. Alternately or additionally, consult an attorney.

For more about employee rights regarding a layoff, see Layoff.

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