On the other hand, there is no reason to disregard them. While DOL agrees that the determination whether a reduction in hours will take place must be made around the time notice must be given, the use of the term "snapshot" is confusing since it implies looking at events that have already occurred. at least 33% of the workforce when the layoff affects between 50 and 499 workers. REC. In the final regulations prescribing notice to affected employees, the requirement that the notice state the name and address of the plant has been eliminated and a requirement that the employer provide the name and telephone number of a company contact person has been added. Questions were raised about the identity of the chief elected official of a unit of local government, given the variety of local government structures. In the preamble to the proposed regulations, DOL solicited comments on: (1) Whether and to what extent the final regulations might provide that collective bargaining agreements which provide for terms different from the terms incorporated into the WARN regulations may be used as legitimate alternative methods of Compliance with WARN; and (2) whether such a provision should apply only to collective bargaining agreements that are entered into after the effective date of WARN or whether agreements that predate WARN also should be included. DOL notes that it is not the intent of WARN to interfere with collective bargaining contract provisions calling for notice to employees or their unions in advance of WARN's 60-day notice period. However, where collective bargaining agreements include provisions which are consistent with and not inferior to WARN requirements, application of those provisions to further define or clarify WARN terms in a specific context would satisfy WARN. Commenters did raise specific points of disagreement, posed additional questions, sought information about the application of WARN in specific situations, and provided examples. During the Senate debates on the bill, Sen. Quayle offered an amendment that would have extended the exemption to non-strikers. The Department believes that in the unique WARN enforcement scheme, under which all enforcement will occur in the context of private civil lawsuits, it is inappropriate for the Department to regulate with respect to these issues. It must be recognized, however, that the duration and terminal point of many temporary projects may not be capable of being precisely defined at the beginning of the project due to the vargaries of other conditions and other factors. Temporary employees, unless they are part-time, should, therefore, be included in the calculation. (h) Section 639.3(h) Definition of "Part-Time Employee" While there will be circumstances in which surprise discoveries of bad debts or assets may require covered employment actions to be ordered in less than 60 days and where the unforeseeable business circumstances exception will clearly apply, the Department cannot agree to a blanket application of the exception. In particular, clarification was sought in the situation where local government is run by an elected board. DOL continues to believe that the issue of the meaning of the effective date is a purely legal issue that the courts will decide without giving any deference to any interpretation that DOL might adopt. The Department also has been aware that some of the provisions of WARN may be ambiguous. The Worker Adjustment and Retraining Notification Act (WARN) was enacted on August 4, 1988 and became effective on February 4, 1989. Several commenters continued to oppose DOL's "interpretation" of the effective date. Language has been added to the final regulation, in §639.7(a)(3), to make it clear that the notice must contain the best information available to the employer when the notice is given. Where it is not possible at the time notice is required to be given to determine who may reasonably be expected to experience employment loss, it may also be adviseable for an employer to give notice to other workers who may lose their jobs as the result of the seniority system, both to forewarn them and to avoid potential liability. Other than the comments relating to the business sale provisions of WARN, already discussed in the review of §639.4(c) of these regulations, there were no comments on this section and no other revisions have been made. The commenter argued that since retail grocery stores operate on slim profit margins, closing one store may save others and under the regulatory language that would not be possible. In the preamble to the proposed regulations, DOL requested comments on whether agencies of State and local government which are independent and perform business activities should be covered. The commenter also asked if a new 60-day notice was required on November 1, 1989 if the employer adheres to the original closing date. Another commenter suggested that the words "or project" be added to clarify the example in §639.5 (3). See State Rapid Response Coordinators. One of the commenters also suggested that the regulations should discuss the basis for calculating the amount of monetary liability and should distinguish between violations of the Act from failure to give notice and violations for giving notice in a "technically deficient fashion". The Department concludes that its earlier reliance on the legislative history is not supported by the later changes in the language of the transfer provision. Congress was concerned with situations in which a company has substantial assets or cash which it simply chooses not to use to save a faltering branch. Employment laws can change at a moments notice. Also, as some commenters pointed out, it does appear that, in some cases where an employer underestimates the size of a layoff, the unforeseeable business circumstances exception for reduced notice may be applicable. DOL recognizes that the comments have merit and that the "full employment status" concept is capable of overbroad application. L. 100-379, 102 Stat. Such long term notice need not contain all the elements required by this section as long as the remaining information is provided in writing 60 days in advance of the covered action. Language to this effect has been added to the regulation. These definitions closely follow the language of the statute. This section states the rule that notice must be served on the chief elected official of the exclusive representative or bargaining agent representing affected employees. Analysis of Final Rule and Comments Nor does the regulation preclude recognition of the National Mediation Board as an authoritative decision maker for entities covered under the RLA. July 6, 1988) (remarks of Sen. Metzenbaum); 134 CONG. One commenter gave a specific example of a situation in which 90-day aggregation might apply and asked questions about the application of that provision. ol{list-style-type: decimal;} One commenter supported all the elements of notice specified in the regulation and suggested that the name and address of a company contact person be included in the notice to affected employees. To aid employers in complying with the Act and issuing notice when it is due, DOL suggests that the employers look ahead and behind, not only 30 days, but 90 days (to determine whether coverage is triggered under section 3(d) of the Act) in determining whether planned employment actions will trigger notice requirements. Of course, while an employer may be covered by virtue of employing a sufficient number of temporary — but not part-time — workers, the employer may be exempt from any requirement to give these employees notice if they are working in a temporary facility, or on a temporary project or undertaking, as defined in §4(a) of the Act and §639.5(c) of these regulations. Other commenters were unsure as to the status of employees who are traditionally understood to be "seasonal" and short-term, yet are hired on a recurring basis. They argued that this concept, if broadly applied to mean that an employee can be reassigned only if he/she retains full pay and benefits, is inconsistent with the statutory definition of employment loss and with employers' rights to reassign workers. 2902 and 2903. While specific mention of the contract of sale has been deleted in the final regulations, since the parties to a transaction may utilize other methods to allocate WARN responsibility, DOL continues to suggest that prudent employers make provisions for WARN notice, if applicable, in the contract of sale or elsewhere. Similarly, the regulation is not intended to foreclose any application of existing law or to identify the source of legal authority for making determinations of whether related entities are separate. These commenters suggested that the final regulations should adopt a definition of the effective date provision of section 11 of WARN that requires notice to begin to be given on the February 4, 1989 effective date of WARN for plant closings or mass layoffs that occur on April 5, 1989. Section 2 of the Act provides necessary definitions and exclusions. The Worker Adjustment and Retraining Notification (WARN) Act helps ensure advance notice in cases of qualified plant closings and mass layoffs. 2101 et seq.) One commenter proposed that any suggestion in the regulations that employers indicate the length of layoffs be deleted since some courts might interpret it as a requirement. The intent of the "full employment status" language was to deal with a specific comment from a major employer which has a program for moving workers who are to be terminated or laid off for a long time into job-finding or retraining activities, all at full pay and benefits. Further, DOL agrees that a fiduciary whose sole function in the bankruptcy process is to liquidate a failed business for the benefit of creditors does not succeed to the notice obligations of the former employer because the fiduciary is not operating a "business enterprise" in the normal commercial sense. Another commenter supported the approach taken in the regulation, arguing that if the worker understood that he/she would be transferred to another project at the completion of the work, the exemption does not apply. None of the comments discussed this provision and it remains unchanged in the final regulations. Several commenters raised a related issue not covered in the regulations. The commenter argued that faltering stores will lose employees and customers if they give notice, which will become a self-fulfilling prophecy. This notice must be provided: Affected workers or their representatives (e.g., a labor union) DOL intends this exception to be a narrow one to cover those cases where separate buildings are used for the same purpose and share the same staff and equipment. DOL does not, however, agree that a worker who, after the announcement of a plant closing or mass layoff, decides to leave early has necessarily been constructively discharged or quit "involuntarily". Such employees would, in many cases, also fall under the "temporary facility/limited employment" exemption in section 4(a). (c) Section 639.1 Notice Encouraged Where Not Required There are practical reasons for favoring each interpretation. June 28, 1988) (remarks of Sen. Dole)). Also, as discussed above, the Department does not view the strikes/lockouts exemption as applying to situations in which plant closings or mass layoffs are ordered because of other conditions than the particular strike or lockout. One commenter suggested that the phrase "at all times, one of the parties to the transaction is responsible for giving notice" be added to the regulations. The Department does recognize that the notice of short term postponements can create a burden on employers. The Department does not believe that there is any reason to attempt to create new law in this area especially for WARN purposes when relevant concepts of State and federal law adequately cover the issue. DOL agrees with this formulation. Effective Date: May 22, 1989 The test of whether the action could have been postponed is one of commercially reasonable business judgment. A commenter suggested that the final regulations should only deal with what WARN requires, not what the Department encourages. Section 639.6 of the regulations clarifies who is to receive notice in each case. 100- 576, 100th Cong., 2nd Sess., 1048 (April 20, 1988)). A referendum is scheduled to take place to decide whether the utility should continue to operate the plant. Another commenter suggested that "fiduciaries" in bankruptcy proceedings should be excluded from the definition of employer. (a) Organization of Regulations DOL believes that the approach it has adopted is most consistent with Congressional intent in two important respects. In response to requests for clarification as to what date is the separation date, the Department has specified in §639.5(a)(1) of the regulations that a worker's last day of employment is considered the date of that worker's layoff. One commenter suggested that "incentive programs" should be specifically recognized as voluntary departures. The regulation lists some of the conditions that are natural disasters. These comments inquire about whether or not an employer planning a plant closing or mass layoff is covered because of some events which may occur between the date that notice is required to be given and the date of the event. One commenter suggested that the regulation should permit the employer to rely on a written acknowledgment from the worker that the commuting distance is reasonable. The commenter argues that this language is gratuitous and might undermine an employer's defense that the layoffs arose from separate and distinct causes. Worker Adjustment and Retraining Notification Act (WARN) Overview. .homepage-news-block > .news-button {display:none;} Paperwork Reduction Act when 50 or more employees are laid off during any 30?day period at a single location. The federal regulations also make it clear that if the seller gives notice as the buyer's agent, the responsibility for giving notice still remains with the buyer. The regulations clarify this situation by providing that the chairperson of the elected board is to receive notice. at S8687 (remarks of Sen. Metzenbaum). A commenter suggested that the regulations clarify that in right to work States, notice to the union is effective as notice to both the members of the union and to those non-members who it represents. This provision discusses the requirement of §6 of WARN that the provisions of the Act "are in addition to, and not in lieu of, any other contractual and statutory rights of the employees". Several commenters were concerned that the definition of "operating unit" was overly broad and suggested that it be made clear that the term refers to only a "fundamental, distinct or structural organizational segment of the enterprise". This advice is for guidance only and should not be interpreted to impose any new or additional standards or requirements on employers. Because of the use of the term "business enterprise", DOL concludes that regular Federal, State, and local government public agencies and services are outside the purview of WARN. (5) Requiring notice will lead to "preventive" notices or to rolling or periodic notices that WARN seeks to avoid. 100-576, 100th Cong., 2d Sess., 1051 (April 20, 1988)). Section 2(a)(5) of the Act defines "affected employees" (in non-union situations, the persons entitled to WARN notice) as "employees who may reasonably be expected to experience an employment loss". Some commenters discussed several types of governmental actions which they argued should be treated as government ordered closings. At that time, you may or may not be offered another job on a different project as needs dictate. This notice must be given to the affected workers or their DOL does not think that the Title VII model is appropriate since, in the case of the assertion of an exception to full notice, the employer is in the position of the proponent of an affirmative defense, i.e., the employer must prove that it is entitled to use the exception. REC. WARN provides that, where there is a representative of affected employees as of the time of notice, an employer must provide notice to that representative rather than directly to the workers. 605(b), that the rule would not have a significant economic impact on a significant number of small entities. None of the comments discussed this definition and it remains unchanged. A commenter suggested that service on the Governor should be sufficient service on the State dislocated worker unit and that DOL should publish a list of State dislocated worker units. 29 U.S.C. Because other agencies with responsibility to administer these statutes regularly are involved in these areas, the regulations will not address the issue. Another commenter asserted that the narrowness of the "faltering company" exception will preclude any unionized company from using it because it could lead to onerous information disclosure requirements under the NLRA. For example, where such long-term notice is given that otherwise includes all required notice elements but does not identify a definite termination date or 14-day period, the giving of an additional notice specifying a termination date or 14-day period 60 days in advance of that date or period constitutes full compliance with WARN. This discussion has been revised to make it clear that the provision preserves notice rights, but creates no other employment rights and that the technical termination that may be deemed to occur upon the consummation of the sale does not, in itself, create notice rights. While the Conference Report on H.R. DOL believes that the remaining elements of notice are important if the parties are to receive notice which will provide them with the information they need to take the appropriate actions to minimize the effects of the affected employees' employment loss. One commenter suggested that the regulation should focus on the closing date and time of the sale, not on the effective date and time. DOL is persuaded that there are factors, including the difficulty of predicting a bumping path where employees have several options among positions or lines of progression into which they can bump, which make it difficult to predict who will finally be affected as a result of a plant closing or mass layoff. The regulation also discusses some examples of what do and do not constitute temporary projects. This body of law recognizes the concept of constructive discharge, under which a worker's resignation or retirement may be found not to be voluntary if the employer has created a hostile or intolerable work environment or has applied other forms of pressure or coercion which forced the employee to quit or resign. These terms are important for determining whether a plant closing has occurred. Under section 11 of the Act, the authority to issue regulations for WARN became effective on August 4, 1988. The commenter suggested that if an employer remains closed for 4 months, it should be required to demonstrate an intent to reopen. Ohio follows federal requirements under the Worker Adjustment Retraining Notification Act which provides protection to workers, their families, and communities by requiring employers to provide written notice at least 60 calendar days in advance of covered plant closings and mass layoffs to the Ohio Department of Job and Family Services' Dislocated Worker Unit (Rapid Response Unit). Thus, DOL believes that a common sense rule should be followed in determining when to give notice of a covered reduction in hours: When it becomes evident that the reduction will extend beyond 6 months, WARN notice should be given. Section 8(a) of the Act requires that the Secretary of Labor "prescribe such regulations as may be necessary to carry out this Act.