WARN notice required despite unforeseeable business circumstances
The U.S. Department of Labor has issued FAQ guidance on the Worker Adjustment and Retraining Notification Act (WARN Act) that’s specific to the current COVID-19 (coronavirus) pandemic. The FAQs briefly explain the WARN Act and suggest that employers may use the unforeseeable business circumstances exception if they have a covered layoff or plant closure that wasn’t reasonably foreseeable at the time the 60-day notice would have been required due to the current situation. Qualification for the exception is decided by private legal action in a court, based on the particular circumstances of the employer. The guidance reminds employers that they’re still required to provide as much notice as is practicable and explain why the full 60-day notice wasn’t possible. The guidance suggests that email notice to employees is acceptable as long as it’s reasonably designed to ensure the notice is received and is specific to the individual employee.
Tips: In order to avoid having to defend the “foreseeability” of your decision in court, it may be wise to provide WARN Act notices sooner rather than later if you have any concerns that a layoff may possibly extend beyond six months. For further information on WARN Act requirements, start with Vigilant’s At a Glance: WARN Act, and review our Legal Guide, WARN Act: The Unforeseeable Business Circumstances Exception. Speak with your Vigilant Law Group employment attorney for analysis of your specific situation.