In response to the COVID-19 (coronavirus) pandemic, many companies – including hotels, restaurants, major retail chains, and manufacturers, have had to reduce hours, pay or close sites and furlough employees. For many employers, these layoffs are expected to be temporary while the virus runs its course, a period estimated by the current administration to end in July or August 2020. But a lot can happen during that time, including the possibility of an economic recession.
What is the WARN Act?
A recession could turn furloughs or short-term layoffs into an event that triggers notice obligations under the federal Worker Adjustment and Retraining Notification (WARN) Act. The Worker Adjustment and Retraining Notification Act of 1988 (the “WARN Act”) is a US labor law which protects employees, their families, and communities by requiring most employers with 100 or more employees to provide 60 calendar-day advance notification of plant closings and mass layoffs of employees, as defined in the Act. It became law in August 1988 and took effect in 1989.
Employees entitled to notice under the WARN Act include managers and supervisors, hourly wage, and salaried workers. The advance notice is intended to give workers and their families transition time to adjust to the prospective loss of employment, to seek and to obtain other employment, and, if necessary, to enter skill training or retraining programs that will allow these workers to successfully compete in the job market.
How to Issue WARN Notices to Employees During COVID-19
My biggest concern for employers is that if we don’t have our employees’ current personal information, the outdated practice of sending a postcard or a certified letter doesn’t make sense. While we our employees are furloughed, we should be trying to get them to update their contact information including phone number, personal email address, and mailing address so we have this information and can be in contact with them whatever we decide to do next.
If you are in furlough, or preparing to do so, now is the time to reach out to your employees to get updated contact information. If you have to furlough employees, they will not have access to their work emails because you deactivated them (the same goes for layoffs). Ask your managers to gather the information from their teams and update those contacts in your database so you can include their email addresses on employee communication.
An employer may use any reasonable method of delivery designed to ensure receipt of the written notice at least 60 days before separation. However, preprinted notices regularly included in each employee’s paycheck or pay envelope and verbal notices do not meet the WARN Act requirements. The WARN notice must be sent separately to each impacted employee and is effective from the date of receipt, not the day the notice was sent. Workers must receive notice at least 60 days before separation. According to the Department of Labor, this does not mean that if one or two notices are not delivered through no fault of the employer, there is a violation. It is prudent, however, to make sure that the workers who were sent notices actually got them.
Can We Send a WARN Notice by Email?
Employers may issue WARN notices via email, although the same requirements for the content of the notices remain in place. Given the COVID-19 pandemic related guidelines and orders issued by many states, email may be a preferred method of notifying State and local government personnel, since many State officials are working from home. Employers are encouraged to reach out to these offices for more information on the preferred method of delivery.
According to the Electronic Code of Federal Regulations, (20 CFR 639.7), notice to each affected employee (who does not have a union representative) is to be written in language understandable to the employees and must contain:
– A statement as to whether the planned action is expected to be permanent or temporary and, if the entire plant is to be closed, a statement to that effect;
– The expected date when the plant closing or mass layoff will commence and the expected date when the individual employee will be separated;
– An indication whether or not bumping rights (a contractual privilege granted to a more senior employee, allowing them to replace a less senior employee) exist;
– The name and telephone number of a company official to contact for further information.
It’s important to note that state law, union agreements and employer policies may provide employees with greater rights than are provided by WARN. The mini-WARN Acts may have different thresholds to be considered a covered employer or to have a covered event. For example, both New York and New Jersey require 90 days of notice before a layoff, with a threshold of only 25 job losses. The California WARN (Cal-WARN) Act applies to establishments at which at least 75 employees had been employed during the prior year, and requires employers to provide at least 60 days’ advance notice of a mass layoff, relocation or termination.
The U.S. Department of Labor does not require employers to provide WARN notices to the Department. However, employers are required to provide WARN notices to the state dislocated worker unit. Some states publish WARN notice listings on their websites but this is voluntary for states, so the frequency of listings and amount of information varies from state to state. The DOL recommends reaching out to each state for information. A list of State Rapid Response Coordinators and contact information is on the DOL website here.