The 12 Days of California Labor and Employment Series – Day 8 "Expansion of COVID-19 Layoff Recall Rights"

In the spirit of the season, we are using our annual "12 days of the holidays" blog series to address new California laws and their impact on California employers. On the eighth day of the holidays, my labor and employment attorney gave to me eight maids-a-milking and SB 723.

Layoffs and reductions in force were prevalent during the pandemic. Job layoffs severely impacted the hospitality and building services industries during the pandemic. Based on the number of layoffs and the primary industries affected, California passed SB 93 in 2021. This bill created California Labor Code Section 2810.8. More ›

Ninth Circuit Says Age Discrimination Laws Apply to Public Employers of Any Size

In Guido v. Mount Lemmon Fire District, the Ninth Circuit Court of Appeals held that the Age Discrimination in Employment Act (ADEA) applies to public employers of any size.

John Guido and Dennis Rankin were hired by Mount Lemmon Fire District (in Arizona) in 2000. They served as fire captains until June 15, 2009, when they were laid off. At the time of the layoffs, Guido was 46 and Rankin was 54 years of age. They were the oldest employees at the Fire District. In April 2013, the two sued their former employer for age discrimination. More ›

Eighth Circuit Adopts Narrow Definition of “Mass Layoff” Under the WARN Act

An employer hired more than 100 workers to replace its employees who went on strike. Upon resolution of the strike, the employer fired 123 of the replacement workers and then reinstated 103 of the returning employees. The replacement workers sued, alleging that the employer had failed to provide an adequate termination notice under the Worker Adjustment and Retraining Notification Act (WARN Act). Under the WARN Act, an employer that conducts a “mass layoff” must provide notice to employees 60 days prior to the layoff. Under the Act, a “mass layoff” occurs when an employer terminates at least 33 percent of its active workforce or more than 500 workers. The replacement workers argued that the court had to consider the number of workers the employer fired, rather than the number of positions the employer eliminated to determine whether a “mass layoff” had occurred. The U.S. Court of Appeals for the Eighth Circuit disagreed and held that simply firing one worker and replacing him with another does not result in a reduction in force as required by the WARN Act. Rather, a reduction-in-force requires a net loss in productivity measured by the numerosity requirements set out in the Act. Accordingly, the employer did not conduct a “mass layoff” because it terminated 123 of the replacement workers, and filled their positions with 103 returning employees, meaning only 20 positions were eliminated. This case clarifies the requirements for a “mass layoff” under the WARN Act for both employers and employees in the Eighth Circuit. Employers must be aware that when positions are eliminated for more than 500 employees, or for at least 33 percent of their workforce, the WARN Act’s notice requirements must be followed.