The Worker Adjustment and Retraining Notification Act (WARN)

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Congress has passed legislation to facilitate the reemployment of workers who through no fault of
their own are let go by their employers. Among these laws is the Worker Adjustment and
Retraining Notification (WARN) Act, P.L. 100-379, enacted in 1988. It requires advance notice of
mass layoffs and plant closings.
Congressional interest in the WARN Act has renewed in the current decade due in part to growth
in offshore outsourcing and perceived shortcomings of the statute. S. 1792, H.R. 3662 and H.R.
3796 would amend the Worker Adjustment and Retraining Notification Act to require more
businesses to provide notice to more workers, lengthen the notice period to 90 days, increase the
back pay penalty for violation of the law, and expand those to whom notice must be given (e.g.,
Secretary of Labor and U.S. Senators and Representatives). On October 31, 2007, the House
passed H.R. 3920, which reauthorizes the Trade Adjustment Assistance programs for workers and
firms and amends the WARN Act. Changes made by H.R. 3920 to the Worker Adjustment and
Retraining Notification Act are similar in several respects to those made by H.R. 3796, such as
authorizing the Secretary of Labor to investigate and attempt to resolve complaints of violations
of the act and counting part-time employees (defined by the act to include persons employed less
than six months) toward the employer size threshold.
The WARN Act now requires employers to provide written notice to displaced workers or their
representatives, state dislocated worker units or entities designated by the state to carry out rapid
response activities, and the chief elected official of a unit of local government at least 60 days
before a plant closing or mass layoff is expected to occur. Shorter notice may be provided in three
instances. A number of other exceptions to and exemptions from the notification requirement
exist.
Relatively small businesses and small temporary layoffs are not subject to the WARN Act. Firms
with 100 or more employees, excluding part-time employees, generally must provide advance
notice if a mass layoff is expected to exceed six months. A mass layoff is an employment loss at a
job site within any 30-day period affecting (a) 50-499 employees (excluding part-timers) if they
make up at least one-third of an employer’s workforce (excluding part-timers), or (b) at least 500
employees (excluding part-time employees). A plant closing is a shutdown of a work site that
produces job losses for at least 50 employees (other than part-timers) within any 30-day period.
(Part-time employees are entitled to notice.)
Employees, their representatives, or units of local government can bring civil actions against
employers thought to have violated the act. DOL does not have any investigative or enforcement
authority. The maximum liability of employers is back pay and benefits for each day that notice
was not provided, although the amount of the penalty may be reduced.
This report will be updated as legislative activity occurs.

Legislative Activity: Past and Present.............................................................................................1
Summary of the WARN Act............................................................................................................2
Length and Intent of the Act’s Advance Notice Requirement...................................................3
Whom Does the Act Cover?......................................................................................................4
Part-Time Employees..........................................................................................................4
Employees Not Entitled to Notice......................................................................................4
Closings and Layoffs to Which the Act Applies.......................................................................4
Exceptions to or Exemptions from P.L. 100-379......................................................................5
Transfers or Reassignments................................................................................................6
Sale of a Business...............................................................................................................6
Strikes and Lockouts...........................................................................................................6
Enforcement and Penalties........................................................................................................6
Table A-1. Extended Mass Layoffs and Worker Separations Directly or Indirectly Related
to the September 11 Attacks, by Time Elapsed............................................................................8
Table A-2. Extended Mass Layoff Events and Worker Separations for the Weeks Ending
September 15, 2001-January 12, 2002, Directly or Indirectly Attributed to the
September 11 Attacks...................................................................................................................9
Appendix. Layoffs Due to the September 11 Attacks.....................................................................8
Author Contact Information..........................................................................................................10

he Worker Adjustment and Retraining Notification (WARN) Act is one of the pieces of
legislation that Congress has passed to facilitate the reemployment of workers who
through no fault of their own lose their jobs. Other statutes include the Workforce T

Investment Act, which provides a variety of reemployment services to dislocated workers (e.g.,
training), and the Trade Adjustment Assistance program for workers, which provides
reemployment services among other assistance to a subset of job losers (i.e., those harmed by ¹
trade).
Although “retraining” appears in its title, the WARN Act does not authorize training. It instead
requires employers that intend to carry out plant closings or large-scale long-lasting layoffs to
provide advance notice to enable affected workers to more quickly find new jobs.

Legislation was first introduced at the federal level in 1973 to require advance notice of plant ²
closings and mass layoffs. The issue proved to be contentious and more than a decade elapsed
before Congress enacted the WARN Act (P.L. 100-379) in 1988 without President Reagan’s ³
signature. The law became effective in February 1989. It generated fairly little interest during a
period marked by a brief mild recession at the outset of the 1990s and then by the longest
economic expansion in the nation’s history (120 months).
Interest has renewed in the WARN Act during the current decade for a variety of reasons. The
frequency and size of layoffs increased markedly during the latest (March-November 2001) ⁴
recession and after the terrorist attacks of September 11, 2001. A few years later, policymakers
grappling with the issue of offshore outsourcing or offshoring of U.S. jobs to other countries ⁵
introduced legislation to amend the statute. S. 2090, which was introduced in 2004, would have
included under the law employer actions that had the effect of creating, shifting, or transferring
positions or facilities outside the United States and in so doing cause a job loss for at least 15
employees during any 30-day period. In addition, the bill would have lengthened the notification
period and lowered the firm-size threshold for mass layoffs. It also would have required the
Secretary of Labor to issue statistical reports based on the written notices of plant closings, mass
layoffs, and offshoring that covered employers would have had to provide the Secretary. (Under
current law, employers do not provide notices to the federal government.)

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Three bills to amend the WARN Act have been introduced to date in the 110^th Congress. S. 1792
H.R. 3662, and H.R. 3796 have several common features intended to address perceived
shortcomings of the law, which has not been substantively amended since its inception some 20 ⁶
years ago. The bills would revise the law to require more firms to provide notice to more
workers terminated en masse (e.g., by lowering the size threshold for employer coverage under
the act to 50 employees excluding part-timers in the case of S. 1792 and H.R. 3662; retaining the
firm-size threshold of 100 employees but including part-timers in the case of H.R. 3796; covering
plant closings of at least 25 employees, excluding part-timers, under S. 1792 and H.R. 3662, and
of at least 25 employees, including part-timers, in the case of H.R. 3796). The bills also would
lengthen the notice period to 90 days before the event, increase the back pay penalty for violation
of the statute, and authorize the Secretary of Labor to bring civil action on behalf of workers.
While S. 1792 would require employers to notify the Secretary of Labor after a covered event had
occurred, H.R. 3662 and H.R. 3796 would require notice be given in advance of a covered plant
closing or mass layoff to the Secretary of Labor and to U.S. Senators and Representatives in the
areas in which plants are located. H.R. 3662 would require advance notice be provided to
appropriate state senators, representatives, and governors as well. On October 18, 2007, the
House Committee on Education and Labor marked up and ordered to be reported H.R. 3796
(amended).
On October 31, 2007, the House passed H.R. 3920, which reauthorizes the Trade Adjustment
Assistance (TAA) programs for workers and firms and amends the WARN Act. Changes made by
H.R. 3920 to the advance notice statute are similar in many respects to those made by H.R. 3796
(e.g., provide 90-day advance notice, increase back pay penalty, authorize the Secretary of Labor
to investigate and attempt to resolve complaints of violations of the act, count part-time
employees (defined by the act to include persons employed less than six months) toward the
employer size threshold, and have employers notify the Secretary of Labor who in turn notifies
the appropriate Members of Congress). Differences between S. 3796 and the TAA bill’s
amendment of the WARN Act include H.R. 3920 defining covered plant closings and mass
layoffs as employment losses of at least 50 employees; prohibiting the rights and remedies under
the WARN Act, including the right to bring a civil action, from being waived or lost pursuant to
an agreement or settlement reached outside the act; and exempting employers from the advance
notice requirement if the closing or layoff is directly or indirectly due to a terrorist attack on the
United States.

The key provisions of the act are described below and at 29 USC Chapter 23. Additional
information is available on the U.S. Department of Labor’s website: http://www.dol.gov/
compliance/laws/c omp -warn.htm.

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Generally, the WARN Act requires employers to provide written notice to affected workers or
their representatives at least 60 days before a plant closing or mass layoff is expected to occur.
Workers affected by a mass layoff would include those who might be “bumped” from their jobs
by more senior workers whose positions had been eliminated.
State dislocated worker units or entities designated by the state to carry out rapid response
activities must be forewarned as well so they may provide assistance under the Workforce
Investment Act for example. The chief elected official of a unit of local government also must
receive notice 60 days before a plant closing or mass layoff is initiated. (See the box, “Three
Reasons for a Notice Period of Less Than 60 Days,” for the three instances in which the advance
notice period can be of shorter duration.)
The WARN Act does not supersede collective bargaining agreements or other laws whose terms
concerning advance notice or related employee rights are superior to those of the statute (e.g., the
provision of severance payments). If a state plant closing law requires employers to provide more
than 60 days advance notice, the federal law’s notice period runs concurrently with the state’s
requirement.
P.L. 100-379’s advance notice period is intended to afford employees time to find other jobs,
obtain retraining or otherwise adjust to their soon-to-be-changed employment situation. As
opposed to the termination of a few employees, large numbers of workers released into a local
labor market at approximately the same time would produce keen competition for job vacancies.
The job-seeking efforts of displaced workers could be particularly difficult if they are released
from a declining industry in which nearby firms producing similar goods or services can offer
few employment opportunities. Similarly, a geographic area with a shrinking or stagnant job base
could have much more trouble absorbing many workers laid off at once as opposed to a few
employees let go from time to time.
Three Reasons for a Notice Period of Less Than 60 Days
^{The faltering company exception}^{: Employers can}^{provide reduced}ⁿ^{otice for plant closings but}^{not fo}^{r mass layoffs, if}
^{they had}^been^{seeking fina}^{ncing o}^r^bu^{siness for}^{their faltering}^ente^{rprises, thoug}^{ht t}^{hey had a}^{realistic chance of}
^{obtaining fu}^{nds or new}^b^{usiness s}^{ufficient to allow the facilities to}^{remain open, a}^{nd believed in good faith that giving}
^{notice would have pre}^{vented t}^h^e^m^{from getting t}^{he ca}^{pital or busi}^ness^necessar^{y to continue}^their^operations.
^{The unforeseeable business circums}^{tances exception}^{: E}^{mployers ca}^{n p}^{rovide reduced notice if they co}^u^{ld not reasonably}
^{foresee the}^bu^{siness circ}^umsta^nc^{es that}^{provoked the}^{plant closings or mass layoffs. Dire circumsta}^{nces t}^{hat occur}^red
^{without warning a}^{nd that}^{were o}^{utside the em}^{ployer’s control could include (1) a major client ter}^{minating a large}
^{contract with t}^{he em}^{ployer, (2) a strike at a su}^{pplier of key}^part^{s t}^o^{the employer or (3) t}^{he swift o}^{nset of a deep}
^{economic downturn or a}^non-nat^{ural disaster (e.g., a terrorist attack).}
^{The natura}^{l disaster exception}^{: The occurre}^{nce of floods, earthq}^uak^{es, droughts, storms, and similar effects of}^natur^e
^{fulfill this exception to the}^60-day^{advance notice re}^quirem^{ent for}^{plant closings or mass layoffs. If}^{closings or layoffs}
^{are indirectly due to nat}^{ural disasters, the e}^{xception would not a}^p^{ply; however, the}^un^foreseen^b^u^s^iness
^circumstan^{ces e}^{xception might.}

Relatively small employers are not subject to the WARN Act. Private for-profit and non-profit ⁷
employers with 100 or more employees (excluding part-time employees or the hourly equivalent)
must provide notice of impending plant closings or mass layoffs. Neither federal, state, nor local
governments are covered by P.L. 100-379, but public and quasi-public entities that engage in
business and that function independently of those governments are covered if they meet the
employer-size threshold.
Workers covered by the statute include hourly and salaried employees, managers, and supervisors
on the employer’s payroll. Persons who are temporarily laid off or are on leave but have a
reasonable expectation of being recalled also are covered and counted toward the employer-size
threshold. The law does not apply to an employer’s business partners, contract employees who
have an employment relationship with and are paid by another employer, and self-employed
individuals.
Part-time employees are defined as persons who on average work under 20 hours per week or
who have been employed fewer than six of the 12 months preceding the date on which notice is
required. Part-timers thus include recently hired employees working full-time hours and seasonal
(part-year) workers. Although part-time employees are not counted toward the threshold for
determining employer coverage under the law, they nonetheless are due advance notice from
covered employers.
Workers who are counted toward the firm-size threshold but are not entitled to advance notice
include U.S. workers who are located at an employer’s facility in a foreign country and
individuals who are clearly told upon being hired that their employment would be temporary
(e.g., limited to the time it takes to complete a specific project). For information on other
exemptions see the section in this report entitled “Exceptions to or Exemptions from P.L. 100-

379.”

A plant closing is defined as a permanent or temporary shutdown of one or more distinct sites of
employment (e.g., an auto plant) or facilities or operating units within a single site (e.g., a
photocopying department) that produces an “employment loss” for at least 50 employees, other
than part-timers, at the site within any 30-day period. An action is considered a plant closing if it
effectively stops the work of a unit within the site, although a few employees may remain in the
facility.

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A mass layoff is defined as an “employment loss”—regardless of whether any units are shut
down—at a single site within any 30-day period for
• 50-499 employees (excluding part-timers) if they make up at least 33% of an ⁸
employer’s active workforce (excluding part-timers), or
• at least 500 employees (excluding part-timers).
P.L. 100-379 thus does not cover small layoffs.
An employer may have to provide advance notice if multiple groups of workers are laid off over
time but each group is smaller during any 30-day period than the employee-size thresholds. If
taken together the number of terminated workers exceeds one of the thresholds during any 90-day
period, the action is considered a plant closing or mass layoff unless the employer proves that the
employment losses are due to “separate and distinct actions and causes and are not an attempt by
the employer to evade the requirements of” the act.
In order for the above-described plant closings or mass layoffs to trigger the advance notice
requirement, the employment loss must involve
• a termination other than a discharge for cause, voluntary departure, or retirement,
• a layoff exceeding six months, or
• a more than 50% reduction in the work hours (excluding overtime hours) of
individual employees during each month of any six-month period.
If an employer calls a layoff that is not expected to meet the statute’s six-month threshold for
providing advance notice and the employer subsequently extends the layoff beyond six months,
an employment loss will have occurred unless the extension was due to “business circumstances
not reasonably foreseeable at the time of the initial layoff.” The employer must give employees
advance notice when it becomes foreseeable that an extension of a short-term layoff is necessary.
As in the case of multiple layoffs of small groups of employees, this provision is intended to
prevent employers from evading the act’s notice requirement by prolonging a layoff that initially
was too brief to meet the law’s definition of employment loss.
The WARN Act contains several exceptions to or exemptions from its requirement that employers
provide affected parties with 60 days notice of an impending mass layoff or plant closing. For
example, the legislation specifies three instances in which a shorter period of notice is allowed
(see box above). The exemption from the notice requirement of workers employed at temporary
facilities or on temporary projects was mentioned previously in the discussion about who is
counted toward the act’s employer-size threshold. Three other cases are taken up below.

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^la^y^o^ff^.

The extent of employment loss can be reduced—and hence, the need to provide notice can be
minimized—under certain circumstances. If a closing or layoff takes place due to the relocation
or consolidation of all or part of an employer’s business it is not considered an employment loss
if before the action:
(1) the employer offers to transfer an employee to another site within reasonable commuting
distance and no more than a six-month break in employment occurs (regardless of
whether the employee accepts or rejects the offer), or
(2) the employee accepts a transfer to another site—regardless of distance—with no more
than a six-month break in employment, within 30 days of the employer’s offer or of the
closing/layoff, whichever is later.
The sale of all or part of a business does not in itself produce an employment loss because
individuals who were employees of the seller through the sale’s effective date are thereafter
considered employees of the buyer. If a covered plant closing or mass layoff takes place up to and
including the effective date of the sale, it is the responsibility of the seller to provide notice. If the
seller knows the buyer has definite plans to initiate a covered plant closing or mass layoff within
60 days of the purchase, the seller may give notice to affected employees as an agent of the buyer
if so empowered by the buyer. If not, the buyer becomes responsible for providing the requisite
advance notice.
Plant closings or mass layoffs that are the result of a strike or lockout are exempt from the notice
requirement unless employers lockout employees to evade compliance with the act. “Economic
strikers” whom employers permanently replace do not count toward the employee-size thresholds ⁹
necessary to trigger the notice requirement. Non-striking employees who experience an
employment loss directly or indirectly associated with a strike and employees who are not
members of the bargaining unit involved in the contract negotiations that prompted a lockout are
entitled to advance notice.
Employees, their representatives or units of local government can bring civil actions in federal
district court against employers thought to have violated the WARN Act. A court does not have
the authority to stop a plant closing or mass layoff.
The U.S. Department of Labor does not have any investigative or enforcement authority under the
law. It is authorized to write regulations and to provide assistance understanding them.

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^c^ontr^a^c^t^ne^g^o^tia^ti^ons^.

Employers who violate P.L. 100-379 are liable for back pay and benefits (e.g., the cost of medical
expenses that would have been covered had the employment loss not occurred) to each aggrieved
employee. The penalty is calculated for each working day that notice was not provided up to a
maximum of 60 days. In other words, the 60-day liability is reduced for each day that notice was
provided. Maximum liability may be less than 60 days for those employees who had worked for
the employer less than 120 days.
If any employer made “voluntary and unconditional payments” to terminated employees for ¹⁰
failure to provide timely notice, the amount of the penalty may be reduced. A court also may
decrease the back-pay liability if an employer’s failure to comply with the act was in “good faith”
with “reasonable grounds for believing” that its closure or layoff action did not violate the law. In
addition, a court may reduce the $500 a day civil fine to which a unit of local government is
entitled for an employer’s violation of the statute. An employer can avoid the civil penalty
entirely if each aggrieved employee is paid the full amount owed within three weeks from the
date of the plant closing or mass layoff.

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The U.S. Bureau of Labor Statistics (BLS) collects data on mass layoffs and extended mass
layoffs. A mass layoff is defined as an event involving at least 50 workers from a single
establishment who file initial claims for unemployment insurance (UI) benefits during a
consecutive five-week period. Although mass layoff data are released monthly, limited
information is collected on these potentially brief events. The BLS subsequently obtains
additional data—including the reason that prompted the action—for those mass layoffs that last
longer than 30 days. The detailed information on extended mass layoffs is released on a quarterly
basis.
To develop a statistical portrait of the impact on layoff activity of the September 11 terrorist
attacks, the BLS began asking employers whether their decision to call a layoff was directly or
indirectly prompted by the events of that day. In the interest of timeliness, these results were
released each month. Although the series does not cover employees let go individually or in small
groups or who were just briefly laid off, it was the only federal statistical program that tracked
worker displacement linked to the terrorist actions of September 2001.
For the 18-week period between mid-September 2001 and mid-January 2002, employers reported
that they called 430 extended mass layoffs that were directly or indirectly attributable to the
attacks. The actions involved 125,637 employees. As shown in Table A-1, the number of layoffs
and workers displaced generally trended downward as time elapsed since the terrorists’ actions.
Table A-1. Extended Mass Layoffs and Worker Separations Directly or Indirectly
Related to the September 11 Attacks, by Time Elapsed
^{Weeks Ending}^{Number of L}^ayoff^Events^{Number of Sepa}^{rated Wo}^rkers
^September¹^{5-October 13, 20}⁰¹²⁸³^87,2⁵⁷
^{October 20-Novem}^{ber 17,}²⁰⁰¹⁹⁶^24,3⁴⁵
^{November 24-Decem}^{ber 15, 20}⁰¹²³^2,57⁴
^December^{22, 2}⁰⁰^1-Jan^uary¹^{2, 2}⁰⁰²²⁸^11,4⁶¹
^{Total 430}^125,⁶³⁷
^Source:^{U.S. Bureau of La}^{bor Statistics. Mass Layoff Statistics series.}
Although employers in 33 states said they released at least 50 employees for longer than 30 days
as a direct or indirect result of the attacks, 72% of the layoffs and 63% of the worker separations
took place in fairly few states. (See Table A-2.) The seven states were California (98 layoffs and

23,516 workers), Florida (56 layoffs and 6,896 workers), Hawaii (25 layoffs and 3,495 workers),

Illinois (21 layoffs and 11,320 workers), Nevada (42 layoffs and 14,943 workers), New York (47
layoffs and 10,765 workers), and Texas (21 layoffs and 8,839 workers).

Table A-2. Extended Mass Layoff Events and Worker Separations for the Weeks
Ending September 15, 2001-January 12, 2002, Directly or Indirectly Attributed to the
September 11 Attacks
^State^{Number of L}^ayoff^Events^{Number of Sepa}^{rated Wo}^rkers
^{Total 430}^125,⁶³⁷
^{Arizona 5}⁵⁰⁵
^{California 98}^23,5¹⁶
^Colorad^{o 5}^1,62⁴
^{Connecticut 4}⁷²⁶
^{Florida 56}^6,89⁶
^{Georgia 5}^4,14¹
^{Hawaii 25}^3,49⁵
^{Illinois 21}^11,3²⁰
^Indiana^{a a}
^Iowa
^Kansas^{a a}
^{Kentucky 3}²⁶⁸
^{Louisiana 8}^1,88⁸
^Maine^{a a}
^{Maryland 5}^1,57⁹
^Massach^{usetts 14}^3,67
^Michigan^{a a}
^{Minnesota 5}^5,97⁹
^Missouri^{a a}
^{Nevada 42}^14,9⁴³
^{New Jers}^ey⁹^1,66⁰
^{New York}⁴⁷^10,7⁶⁵
^{North Carolina}⁸^5,31⁸
^{North Dakota}^{a a}
^{Ohio 5}⁷¹¹
^{Oklahoma 4}³⁶⁷
^Oregon^{a a}
^{Pennsylvania 4}⁹⁶²
^{Tennessee 6}^1,25⁶
^{Texas 21}^8,83⁹
^{Utah 4}⁸⁷⁰

^State^{Number of L}^ayoff^Events^{Number of Sepa}^{rated Wo}^rkers
^{Virginia 6}^1,58⁴
^{Washington 8}^7,22⁵
^Source:^{U.S. Bureau of La}^{bor Statistics. Unpublished data from t}^h^e^{Mass Layof}^{f Statistics series.}
^a.^{Although exte}^{nded mass layoffs a}^{ttributable, directly or indirectly, to the Septem}^ber^{11, 2}⁰⁰^{1, terro}^rist
^{attacks occur}^{red in thes}^{e states,}^{the actions were}^{too few in n}^u^m^{ber to meet BLS or state}^agency
^{disclosure standards (i.e., fewer than t}^{hree ev}^ents).
Most extended mass layoffs due to the terrorist attacks were concentrated in two industry groups:
(1) accommodation and foods services and (2) transportation and warehousing. Together they
accounted for 268 (or 62%) of the large, long-lasting terrorist-related layoffs and 92,224 (or 73%)
of the employees displaced by those events. In particular, 100 (or 23%) of the layoffs took place
at hotels and motels, excluding casino hotels, within the broader accommodation and food
services industry group. Non-casino hotels/motels let go 18,703 employees in the actions, or 15%
of all separated workers. Another 37 layoffs (or 9% of the total) were at casino hotels, and 14,100
workers (or 11% of all separated workers) were let go in the actions. The 30 remaining layoffs in
the accommodation and food services industry group (or 7% of all layoffs) that led to the
termination of 7,544 workers (or 6% of all separated employees) involved such firms as
restaurants, cafeterias, fast-food establishments, and caterers that felt the effect of reduced
tourism brought about by travelers’ fears over the events of September 11, 2001. Thus, the
accommodation and food services industry group as a whole experienced 39% of all large, long-
lasting layoffs (167 events) directly or indirectly connected with the terrorist actions and released
32% (40,347) of all separated workers. In comparison, the scheduled air transportation industry
called many fewer actions (69 or 16% of the terrorist-related layoffs), but it terminated a
somewhat larger number of employees (44,861 or 36% of the total). The other 32 extended mass
layoffs in the transportation and warehousing industry group (or 7% of the total) likely involved
nonscheduled air carriers and sightseeing or charter bus operators. An additional 7,016 workers
were displaced by these employers (or 6% of all separated workers). The entire transportation and
warehousing industry group thus accounted for 101 (or 23%) of the terrorist-related layoffs and

51,877 (or 41%) of all separated workers.

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