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Washington Watch|Issues Update|Workplace Rights

Workplace Rights

American Journal of Nursing - December, 2000 - Volume 100, Issue 12

Your Final Warning
Know your rights in advance of a layoff

By Bich-Quyen Nguyen, JD, Esq

Q. My facility recently announced it will be instituting layoffs. What are my rights?

A.You and your colleagues may be entitled to appropriate notice under the Worker Adjustment and Retraining Notification (WARN) Act. The WARN Act requires employers who have 100 or more employees and who are planning mass layoffs or plant closings to provide at least 60 calendar days’ notice to employees. (Employees who have worked fewer than six of the preceding 12 months and those who work an average of fewer than 20 hours a week are not included in the total employee count, although they’re entitled to receive notice.) Federal, state, and local governmental entities that provide public service are not required to supply such notice.

Under the WARN Act, a facility is considered closed when it’s shut down for more than six months or when 50 or more employees at a single site of employment lose their jobs during any 30-day period. A mass layoff occurs when either 500 or more workers or 33% of the workplace (at least 50 employees) lose their jobs during any 30-day period. You’ll need to determine if the number of people laid off from employment at your facility falls within the definition of either a plant closing or a mass layoff.

The WARN Act doesn’t apply to closings of temporary facilities, and notice need not be provided to employees hired specifically for a project when it’s near completion. Moreover, the act also permits notice of less than 60 days when layoffs result from a natural disaster, the closing of a faltering company, or an unforeseeable business circumstance.

The WARN Act requires that written notice be provided either directly to you and your colleagues or to your union representative. The notice must be based on the information available to your employer at the time and should indicate whether the event is expected to be temporary or permanent and whether the entire facility will be closed. It must include the date the closing or layoff is expected to begin and the date on which individual employees will be relieved of their positions. The notice should indicate whether or not there are “job bumping” rights, which allow laid-off workers to pursue the positions of less senior employees.

Finally, the notice must include the name and telephone number of an official in your facility who can be contacted for additional information. Subsequent changes to the notice or minor, inadvertent errors on the part of your employer made in the notice aren’t considered violations of the notice requirement.

An employer who doesn’t comply with the WARN Act provisions is liable to each employee for an amount equal to back pay and benefits for the period of the violation, for up to 60 days. This may be reduced by wages paid during the period of the violation and any voluntary payments made by the employer to the employee. Adjudicated by the U.S. District Courts, individual or class action suits against WARN Act violations may be instituted by employees or their representatives. Courts may allow reasonable attorney’s fees as part of any final judgment. The WARN Act rights supplement but neither supersede nor supplant any other federal, state, or local laws or collective bargaining rights that require other notification or confer benefits.

The aim of the advance notice provision is to give employees and their families and dependents time to adjust to the impending loss of employment income, to seek and secure alternative employment, and if necessary, to acquire training and skills. If you are laid off, make sure you receive any group health insurance coverage or pension benefits to which you are entitled.

Additional Information

For additional information regarding the WARN Act, contact the Department of Labor.