It is time to assess: is there to be a reopening? If yes, please view our extensive alert regarding Return to Work issues. If not, or if you are considering a reopening with less than a full complement of the workforce that was in place in early March, it is time to start assessing compliance with the federal Workers Adjustment and Retraining Notification Act, or WARN, 29 U.S.C. §§2101 et seq, (FED WARN) and its states’ counterpart laws, or “mini-WARN” laws.The Federal WARN ActUnder FED WARN, 60 days’ advance notice of a mass layoff or plant closing must ordinarily be given in advance of “ordering” a certain number of employment losses due to a plant closing or mass layoff. First, a “plant closing” occurs where 50 or more (not counting so-called “part-time” employees) employees experience an employment loss when there is a cessation of operations at a site, or a cessation of operations of an operating unit within a site.

Employees who stopped reporting to work after their employer announced it would close in 12 days if it did not find a buyer for the business have suffered an “employment loss” under the federal Worker Adjustment and Retraining Notification Act (“WARN”), 29 U.S.C. §2101 et seq., the federal appeals court in San Francisco has determined. Collins, et al. v. Gee West Seattle LLC, No. 09-36110 (9th Cir. Jan. 21, 2011).

On January 21, 2011, the Ninth Circuit Court of Appeals in Collins v. Gee West Seattle LLC held that when an employee voluntarily leaves because the company is closing, the employee has not "voluntarily departed," but has instead suffered an "employment loss" under the Worker Adjustment and Retraining Notification ("WARN") Act, 29 U.S.C. § 2101 et seq.The WARN Act requires an employer to provide 60-days' notice before a mass-layoff or plant closure to its "affected employees," but only "if the shutdown results in an employment loss at the single site of employment during any 30-day period for 50 or more employees . . . ." 29 U.S.C. § 2101(a)(5). The WARN Act defines "affected employee" as one who "may reasonably be expected to experience an employment loss as a consequence of a plant closing . . . ." 29 U.S.C. § 2101(a)(5).

The WARN Act defines an "employer" as "any business enterprise that employs: (i) 100 or more employees, excluding part-time employees; or (ii) 100 or more employees who in the aggregate work at least 4,000 hours per week (exclusive of hours of overtime)." 29 U.S.C. § 2101(a)(1).DOL commentary to WARN Act regulations (the "DOL Commentary") addresses whether a debtor in bankruptcy qualifies as an "employer" under the WARN Act:[T]he term "business enterprise" used in the statute includes public and quasi-public entities which engage in business (i.e., take part in a commercial or industrial enterprise; supply a service or good on a mercantile basis, or provide independent management of public assets, raising revenue and making desired investments)….[T]he Department does not think it appropriate to [exclude all debtors in bankruptcy from the definition of "employer"].

An employer is subject to the WARN Act if it has 100 or more employees. 29 U.S.C. §2101(a)(1). Moreover, the requirement to give notice under the WARN Act is triggered in two situations: (1) the closing of a facility that results in 50 or more employees losing their job; or (2) a mass layoff at a facility in which (i) 50 to 499 employees, who constitute 33% of the workforce, are terminated; or (ii) the termination of 500 or more employees.

(1) Was Voisard an “Employer” Covered by the WARN Act?The Law The WARN Act requires employers that close any single site of employment or have a “mass layoff” at a single site of employment (with either causing at least 50 “losses of employment” during a 30-day period) to provide at least 60 days’ advance notice of the job losses to the employees (or their representative, if any) and to the local state dislocated worker division. 29 U.S.C. §§2101(a), 2102(a).Snapshot Date But, only “employers” are subject to the advance notice rule.

As a practical matter, most challenges to certification focus on commonality and typicality and upon the 23(b)(3) requirements that class action issues predominate and that a class action be the superior means of handling the case.These requirements are often not a major issue in cases under the WARN Act, 29 U.S.C. §§ 2101 et seq., because of the very nature of the statute. The WARN Act doesn’t even apply unless at least 50 employees have suffered a loss of employment, so that numerosity is generally not an issue.

Today, in Long v. Dunlop Sports Group Ams., Inc., No. 06-2143 (4th Cir. Oct. 29, 2007) (PDF), the Fourth Circuit held that a golf ball manufacturer that ceased all production without the required 60 days notice to its employees did not violate the WARN Act where it continued to pay the employees for 60 days or until they took jobs with the successor entity, whichever occurred sooner.The Worker Adjustment and Retraining Notification Act ("WARN Act"), 29 U.S.C.A. §§ 2101-2109, requires that certain employers provide their employees with written notice 60 days before a plant shutdown causes the employees an employment loss, including an employment termination other than discharge for cause, voluntary departure, or retirement.In this case, the employer, provided notice of the shutdown at the time of shutdown and for the next 60 days continued to pay full wages and benefits to all but 22 employees. The employer stopped payments to those 22 employees when they began full-time employment with the successor entity.Those 22 employees sued, asserting that the employer violated the WARN Act and should pay their wages and benefits for the entire 60-day notice period.

The federal WARN Act (29 U.S.C. § 2101 et seq.) requires covered employers to provide written notice at least 60 days before implementing a “plant closing” or a “mass layoff.”Although it is more generally understood that large-scale layoffs or the closure of large facilities that result in the termination of hundreds of employees might implicate the WARN Act, restaurants can unknowingly trigger the WARN Act’s notice requirements under less obvious circumstances that could require choosing between suddenly changing plans or risking the potential of facing a class action lawsuit or Department of Labor investigation. This article discusses various WARN Act issues that restaurants should consider.Single-Site AggregationThe federal WARN Act, as well as most state mini-WARN Acts, is triggered based on employment losses at a single location (typically referred to as a “single site of employment”). However, under certain circumstances, multiple facilities can be aggregated together to form one larger single site of employment for

sistent bout of consumer price deflation that started on or about July 2023. Additionally, at the producer level, Chinese businesses have been experiencing price deflation for approximately a year. Given the inter-connectedness of the global economy, these events that will have some degree of negative impact on the U.S. economy.In sum, the bond yield curve inversion shows the likelihood of a recession this year. Other economic indicators do not provide a compelling basis to disregard the inversion. To be clear, the foregoing does not address whether a pending recession will be severe or mild.Contractor and Subcontractor Food for ThoughtIn the context of a recession, there are some basic things that merit discussion.The WARN ActFirst, if a Government contractor or subcontractor is going to conduct a furlough or layoff, that employment interruption (whether temporary or permanent) may be subject to the Worker Adjustment and Retraining Notification Act (“WARN Act”) of 1988. See 29 U.S.C. §§ 2101-09. With exceptions, the WARN Act requires any employer with 100 or more employees (by head count or aggregate hours) to provide notice at least 60 days prior to the employment interruption of at least 50 employees if that stoppage is occurring as part of a “plant closing” or “mass layoff”—as those terms are defined under the Act. Hence, 100-60-50 is the general rule. To be at the 100-employee threshold, the employer must be a “business enterprise that employs—(i) 100 or more employees, excluding part-time employees; or (ii) 100 or more employees, including part-time employees, who in the aggregate work at least 4,000 hours per week, exclusive of hours of overtime.”A “plant closing” is defined as “[t]he permanent or temporary shutdown of a single site of employment, or one or more facilities or operating units within a single site of employment, if the shutdown results in an employment loss at the single site of employment during any 30-day period for 50 or more employees excluding a