Following the Layoffs, the number of onsite employees decreased by 4 from April 22, 2017 to May 22, 2017 solely due to voluntary separations and/or terminations for cause during the intervening time period. SUMF ¶¶ 41, 49-52; 29 U.S.C. § 2101(a)(6)(A). Case 3:17-cv-00444-NJR-RJD Document 14 Filed 06/28/17 Page 14 of 16 Page ID #57 15 Absent the employees Plaintiff seeks to exclude, coal at the Complex would be unfit for sale without a preparation facility, and the supplies and equipment used to mine that coal would rust, rot, or be stolen without a warehouse.

t Tech. Corp., 247 F.3d 471, 494–95 (3d Cir.2001) (“[T]he DOL factors are an appropriate method of determining lender liability as well as parental liability, and therefore [we] hold - - --- - - -- -- - ---- WESTLAW Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 364 of 520 PageID 1000 Likes v. DHL Exp., 25 F.Supp.3d 1352 (2014) 164 Lab.Cas. P 10,698, 38 IER Cases 905 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 8 that, regardless of whether GECC took on the status of ‘parent’ in addition to its status of ‘lender’ when it foreclosed on the stock, its involvement with CompTech will be tested by reference to those factors.”). 17 For the purposes of this Motion only, the court, as indicated above, has assumed that Mr. Likes is able to benefit from the unified employer approach pursuant 20 C.F.R. § 639.3(a)(2) and, therefore can meet WARN's requirement that a covered employer employ 100 employees by combining WAF's workforce with that of DHL. See 29 U.S.C. § 2101(a) (1) (defining “employer” to mean “any business enterprise that employs—(A) 100 or more employees, excluding part- time employees[.]”). 18 Cf., e.g., Davis v. Signal Int'l Texas GP, L.L.C., 728 F.3d 482, 487 (5th Cir.2013) (finding single site of employment when “sharing of staff between the yard and annex was not merely occasional but in fact regular, with certain employees maintaining offices at both buildings, regular visits by personnel from one facility to the other, and use of the same security, payroll, and other staff”). 19 While § 639.3(i)(6) makes it clear that the “home base” for all of WAF's couriers is appropriately classified as a “single site of employment,” none of the DOL interpretative guidelines provides that employees who work exclusively for separate primary employers, but who also report to a common work-related location that is furnished by the same unified employer are collectively considered to be a “single site of employment.” 20 The court acknowledges that the DO

Indeed, Defendants’ repeated threats of Rule 11 sanctions against Plaintiff’s counsel for the filing of the Complaint emphasize the differences between requesting an administrative investigation and the filing of a lawsuit under the Act in federal court. In 8 Notably, the Illinois Act states that “Whenever possible, this Act shall be interpreted in a manner consistent with the federal [Act] [29 U.S.C. § 2101 et seq.] and the federal regulations and court decisions interpreting that Act to the extent that the provisions of federal and State law are the same.” 820 ILCS 65/55. No federal cases in Illinois have adopted a six-month limitations period for claims under the Act.

Id. (citing 29 U.S.C. § 2101(a)(3)). 9.

It is the Defendants' burden under 29 U.S. C. § 2102(d) to prove that employment losses at the corporate office are the result of "separate and distinct actions" and prove that the 53 employees terminated were a discharge for cause, Case 2:16-cv-09066-DDP-JPR Document 79 Filed 12/29/17 Page 13 of 18 Page ID #:1273 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT - 11 voluntary departure, or retirement. 29 U.S.C. § 2101(a)(6)(A). The Defendants have failed to establish their burden in their briefing or in discovery.

Complaint, ¶ 27(c). Paragraph 28 similarly alleges that “the Defendant ordered ‘mass layoffs’ at the Facility as that term is defined by 29 U.S.C. § 2101(a).” Plaintiffs do not allege any facts to support the bald allegation that Prentice exercised de facto control over KB Toys’ labor practices or ordered the mass layoffs.

13 7 UF Nos. 11-12. 8 29 U.S.C. § 2101(a)(1)(A). 9 See id.

Id. (citing 29 U.S.C. § 2101(a)(3)). Federal WARN also provides that several smaller layoffs over a 90-day period can be aggregated to Case 2:16-cv-09066-DDP-JPR Document 81 Filed 01/08/18 Page 3 of 10 Page ID #:1374 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 Case No. 16-cv-09066-DDP-JPRx REPLY BRIEF IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT constitute a plant closing or mass layoff unless “the employment losses are the result of separate and distinct actions and causes and are not an attempt by the employer to evade the requirements of this chapter.”

As noted, the Act defines “employer” as “any business enterprise” that employs 100 or more full-time employees. 29 U.S.C. § 2101(a). Although the Act does not define “business enterprise,” WARN Act regulations “pro- vide that two or more affiliated companies may be considered a single business enterprise for WARN Act purposes” in limited circumstances discussed below.

The WARN Act defines a “plant closing” as the permanent or temporary shutdown of a “single site of employment” that results in an employment loss during any 30-day period for 50 or more employees, and defines a “mass layoff” as a reduction in force that results in an employment loss at a “single site of employment” during any 30-day period for at least 50 employees who comprise 1/3 of the employees at that site, or alternatively, at least 500 employees. 29 U.S.C. § 2101(a)(2) & (3)(B). Page 6 of 16 HOU:3615374.2 17.