Complying With Warn

Under the Worker Adjustment & Retraining Notification Act (WARN), employers have to give notice of impending layoffs under certain circumstances. With planning, you can be sure not to violate WARN s requirements. Review this checklist before you pull out the pink slips:

WARN applies if

100 of your employees are fulltime, or

100 or more employees (full or parttime) work 4,000 hours a week excluding overtime.

Under WARN, employees are parttime if:

Each worked on average less than 20 hours a week in the preceding 90 days regardless how many months the employee has been employed; or

They worked less than 6 of the last 12 months regardless how many hours worked per week.

Layoffs can be structured to limit WARN exposure:

Wait 90 days between layoffs. Because any layoffs 90 or less days apart may have to be aggregated, if you wait more than 90 days between layoffs, you may avoid WARN altogether.

Slip through the aggregation loophole. Layoffs that are more than 30 but less than 90 days apart must be aggregated to decide if WARN is triggered only when the number of employees laid off each time is less than the minimum number needed to trigger WARN. If layoffs occur more than 30 but less than 90 days apart and only one of the layoffs is sufficient to trigger WARN, there are no WARN obligations for the other layoffs.

Be caught unaware (but act quickly as soon as you are aware). When a mass layoff or plant closure is caused by business circumstances not reasonably foreseeable at the time notice would have been required, you may provide less than 60 days notice.

Count employees wisely. WARN applies to a particular layoff only when the layoff affects the requisite number of fulltime employees. Just because you classify an employee as fulltime does not mean the employee is fulltime for WARN.

Hire temporary employees. Employees can be hired on a temporary basis if necessary without creating a potential for WARN liability. Truly temporary employees, i.e., those who clearly understand when hired that their employment is temporary, do not have to receive WARN notice.