Showing 4 posts in WARN.
11th Circuit Declines to Aggregate Workers of Multiple Contractors for WARN Act Notification Purposes
Closing up shop and winding down a business can have significant legal ramifications for employers if not handled appropriately. The WARN Act was designed to prevent surprise upon unsuspecting groups of employees, but the law is relatively straightforward as to which employers must comply with these rules and under what circumstances. More ›
Second Circuit: Parent Company has Liability for Subsidiary’s WARN Violations
The Worker Adjustment Retraining and Notification Act ("WARN") requires employers with 100 or more employees to provide 60 calendar days' notice of plant closings or mass layoffs to give transition time to workers and their families to adjust to the prospective loss of employment, seek alternative jobs, and/or enter skill training or retraining to successfully compete in the job market. 29 U.S.C. §2201 et seq. Employers who fail to comply with WARN are liable to affected employees for up to 60 days of pay and benefits. 29 U.S.C. §2104(a)(1).
In this case, the employee was laid off by the employer and filed a class action alleging that the employer and its parent company and other related ownership entities violated WARN. Specifically, the employee claimed that the parent was liable for the employer's WARN violations because the parent company disregarded the employer's corporate form and exercised de facto control of the employer. As it turns out, the parent company was the sole member and manager of the employer, and the parent company's board operated as the employer's board.
The Second Circuit reversed summary judgment in favor of the parent company, finding that a triable issue of fact existed that would allow a jury to conclude that the employer was so controlled by the parent that the employer lacked the ability to make any decisions independently and that a parent company resolution authorizing the employer to layoff this employee and the class of similar employees was a function of being an employer and created liability. Adopting Department of Labor regulations to determine if separate entities are a single employer, the court considered whether there was (1) common ownership; (2) common directors and/or officers; (3) de facto exercise of control; (4) unity of personnel policies emanating from a common source; and (5) dependency of operations. The Second Circuit observed that the inquiry is a fact-specific balancing test, no one factor controls, and all factors need to be present for liability to attach to the related entity. Significantly, a separate legal existence will not insulate a parent company from liability for a subsidiary's WARN violations if the parent is the decision-maker responsible for the employment practice giving rise to the litigation.
If you have questions about Guippone v. BH S&B Holdings, LLC et al., No. 12-183 (2nd Cir. December 10, 2013), please contact David I. Dalby.
Eighth Circuit: Current Economic Downturn was an “Unforeseeable Business Circumstance” Under the WARN Act
The Worker Adjustment and Retraining Notification (WARN) Act requires qualifying employers to provide written notice at least 60 calendar days in advance of plant closings and mass layoffs. An exception to the Act exists, however, for “unforeseeable business circumstances.” Under that exception, no advance notice is required when the layoff event is the result of business circumstances caused by a sudden, dramatic, and unexpected condition. In its July 2, 2012, decision in United Steel Workers Local 2660 v. U.S. Steel Corp., the Eighth Circuit approved a shortened WARN Act notice for the employer, holding that the current economic downturn fell within that “unforeseeable business circumstances” exception. 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.
Topics
- Equal Pay for Equal Work
- Rest Period
- Wage Order 9
- 24-hour shifts
- ambulance attendant
- meal period
- off-duty rest
- premium wage
- Audit
- automobile sales exemption
- fair reading
- narrow construction
- job classification
- job classification audit
- Temporary Schedule Change
- Fair Workweek Law
- New York City
- Black Lives Matter
- 42 U.S.C. s. 1981
- disparate treatment
- Racial Discrimination
- Severe & Pervasive
- Objectively Offensive
- Subjectively Offensive
- Massachusetts Equal Pay Act
- MEPA
- Attorney General Guidance
- Comparable Work
- Salary History
- Salary Inquiries
- Pay Inquiries
- Self Evaluations
- Florida Civil Rights Act
- Opposition
- Unlawful Employment Practice
- Pregnancy Discrimination Act
- PDA
- Childbirth
- Trans
- Transitioning
- Sex Stereotyping
- 2nd Circuit
- equality
- Zarda v. Altitude Express
- FCRA
- Fair Credit Reporting Act
- Wisconsin Fair Employment Act
- WFEA
- Criminal Conviction
- Arrest Record
- Hiring Policy
- Substantial Relationship
- Protected Speech
- Anti-discrimination Policy
- Anti-harassment Policy
- Diversity
- Diversity Policy
- Social Media Policy
- Electronic Communication Policy
- Dodd-Frank Wall Street Reform and Consumer Protection Act
- SCOTUS
- Securities Fraud
- Student Loans
- Gig Worker
- Gig Economy
- Employer-Employee Relationship
- Borello Test
- Employee
- Exclusive Remedy
- Wis. Stat. ch. 102
- Tort Liability
- Temp Employee
- Temporary Help Agency
- Leased Employee
- Claim for Compensation
- Negligence
- Sarbanes-Oxley Act
- Fraud
- Internal Complaints
- Form 300A
- Annual Summary
- Fines
- Willful and Repeat
- Serious Violation
- Other-than-Serious Violation
- 2015 Inflation Adjustment Act
- Students
- Interns
- Internal Revenue Service
- IRS Notice 1036
- Payroll
- Payroll Taxes
- Social Security
- Supplemental Wages
- Withholdings
- Tax Reform Act
- Tax Cuts & Jobs Act
- Income Tax
- 2018 Withholding Tables
- Joint Employment
- Browning-Ferris
- Right to Control
- Joint Control
- Essential Employment Terms
- Direct and Immediate
- California Family Rights Act
- Parental Leave
- Sexual Orientation Discrimination
- AB 1008
- Ban the Box
- Department of Economic Opportunity
- compliance audit
- ADA Interference
- 42 U.S.C. § 12203(b)
- 7th Circuit
- Disability Discrimination
- Union
- Union Organizing
- New York Paid Family Leave
- Paid Leave
- NY State Department of Taxation
- Serious Health Condition
- military duty
- Tax Implications
- PFL
- New York Average Weekly Wage
- Obama Administration
- Illinois Human Rights Act
- Emotional Distress
- Workplace bullying
- Extreme or Outrageous
- Salary test
- EAP Exemption
- State of Nevada v. US Department of Labor
- Family Medical Leave Act
- Incentives
- A.A.R.P. vs. U.S. E.E.O.C.
- employer sponsored
- Medical History
- mandatory
- Voluntary
- ACA
- San Francisco Parity in Pay Ordinance
- California Labor Code Section 1197.5
- Fiduciary
- Fiduciary Duty
- Professional Exemption
- Executive Exemption
- Outside Sales Exemption
- Computer Exemption
- Request for Information
- Highly Compensated Employees
- Secretary of Labor
- notice
- Domestic Violence
- California Labor Code
- California Labor Code s. 230.1
- Interactive Process
- Sexual Assault
- Stalking
- PTO
- Paid Time Off
- National Labor Relations Act
- Union Organizing
- Protected Concerted Activity
- Jefferson Standard
- Disparaging
- Labor Dispute
- 8th Circuit
- Vacation Pay
- Vested Rights
- Vacation Policy
- Vacation accrual
- Waiting period
- Pregnant worker protections
- M.G.L. Chapter 151B
- Massachusetts Pregnant Workers Fairness Act
- Employment Contract
- At-will employment
- only when rule
- Wisconsin Court of Appeals
- Department of Homeland Security
- U.S. Citizenship and Immigration Services
- USCIS
- Consular Report of Birth Abroad
- E-Verify
- Massachusetts Supreme Judicial Court
- handicap discrimination
- Drug Free Workplace Act
- Hawkins-Slater Medical Marijuana Act
- Rhode Island
- Hiring Practices
- Drug Free Workplace Policies
- Drug Testing
- Gender Nonconformity
- Sick Leave
- St. Paul, Minnesota
- Minneapolis, Minnesota
- Minneapolis Sick and Safe Time ordinance
- St. Paul Sick and Safe Time ordinance
- Child Labor Laws
- Minors
- Minor Employees
- Work Permits
- Street Trade Permits
- Restaurants
- Grocers
- Manufacturers
- Teenage Labor
- Department of Workforce Development
- DWD
- protected class
- protected activity
- Delaware
- pay gap
- compensation history
- Age Discrimination in Employment Act
- Public employers
- private employers
- federal government
- state government
- employer
- RIF
- Reduction in Force
- Circuit Split
- 11th Circuit Court of Appeals
- enterprise coverage
- goods vs. materials
- Aiding and Abetting
- conviction record
- New York State Human Rights Law
- NYSHRL
- Work Schedules
- Fast Food
- Retail
- Fair Workweek laws
- pension plans
- religiously affiliated employers
- church plans
- ERISA section 4(b)(2)
- statutory exemption
- Anti-Retaliation Rule
- Safety Programs
- Workplace Policies
- Injury and Illness Reporting
- Workplace Injury Reporting
- Electronic Reporting
- Salary inquiry
- pay history
- racial equality
- ethnic equality
- fair pay
- Health Insurance
- Patient Protection and Affordable Health Care Act of 2009
- Fairfax Memo
- American Health Care Act
- AHCA
- ObamaCare
- Trump Administration
- Employer Mandate
- Section 8
- marijuana
- SEC
- Securities & Exchange Commission
- age-based harassment
- disability-based harassment
- sex-based harassment
- sexual orientation-based harassment
- gender identity-based harassment
- Injuctive Relief
- final rule
- webinar
- workplace injury
- Occupational Safety and Health Administration
- Exempt Employee
- Trump
- republican
- administration
- Right to Work
- Affirmative Action
- EEO-1
- Fiduciary Rule
- minimum wage
- executive order
- eeo laws
- cook county
- Section 7
- Unfair labor practice
- strike
- collective bargaining
- permanent replacement employees
- burden shifting
- convincing mosaic
- evidentiary burdens
- bereavement
- unpaid leave
- confidentiality agreement
- employee handbook
- employer policies
- misappropriation
- defendant trade secrets act of 2016
- pay equity
- gender equality
- gay rights
- lesbian rights
- unemployment
- Tipped workers
- Illinois Minimum Wage Law
- Temporary workers
- Employee Benefits
- Penalties
- posting requirements
- constructive discharge
- Administrative Exemption
- Wellness Programs
- Americans with Disabilities Act
- Genetic Information Nondiscrimination Act
- Equal Employment Opportunity Commission
- department of labor
- Transgender Rights
- LGBTQ Rights
- administrative warrant
- Confidential Information
- trade secrets
- Unpaid Wages
- Title VII of the Civil Rights Act of 1964
- Labor Code
- Discrimination & Harassment
- interference
- Preemption
- National Labor Relations Board
- Shameless
- Criminal History
- LGBTQ
- Fair Labor Standards Act
- Medical Marijuana
- EEOC
- Arbitration
- Discrimination
- Agreements
- 9th Circuit Court of Appeals
- Disability & Medical Leave
- Expert
- Joint Employers
- wisconsin
- California Court of Appeal
- Media Mention
- Case Updates
- United States Supreme Court
- Fair Employment and Housing Act
- Opinion
- Independent Contractor v. Employee
- Removal
- Bankruptcy
- Judicial Estoppel
- Quid Pro Quo
- Freedom of Speech
- Exempt Status
- Picket
- Gender Bias
- Immigration
- H-1B
- News
- Affordable Care Act
- Collective Bargaining Agreements
- Eleventh Circuit
- First Amendement
- New Jersey
- Paid Sick Time
- Leave
- Eighth Circuit
- IRS
- Meal & Rest Break
- EEOC
- Nebraska
- Religious Discrimination
- Undue Hardship
- Arbitration
- 6th Circuit Court of Appeals
- 5th Circuit Court of Appeals
- Hostile Work Environment
- New York
- Sexual Harassment
- ADA
- Anxiety
- Disability
- South Dakota
- ADEA
- OWBPA
- Settlement Agreement
- Texas
- Tenth Circuit
- California
- FMLA
- Estoppel
- Retaliation
- Benefits
- Wages
- Mandatory Arbitration
- ERISA
- Non-compete
- Age Discrimination
- Accommodation
- 9th Circuit Court of Appeals
- Electronic Communications
- Texting
- Second Circuit
- Tax
- Wage & Hour
- Class Action
- Ninth Circuit
- Privacy
- SCA
- FLSA
- Volunteers
- Discrimination
- GINA
- Title VII
- Massachusetts
- NLRA
- NLRB
- Bargaining
- Seventh Circuit
- Union
- Undocumented Workers
- Health Care
- Supreme Court
- HIPAA
- HHS
- Wellness
- Harassment
- Supervisor
- Burden of Proof
- Pregnancy Discrimination
- Pretext
- Internships
- PAGA
- Similarly Situated
- Termination
- Union Dues
- Class Certification
- Overtime
- Rest Breaks
- Exemption
- Third Circuit
- Fitness-For-Duty
- Multiple Sclerosis
- Labor
- Missouri
- D.C. Circuit
- Fourth Circuit
- CFAA
- Injunction
- First Circuit
- Collective Action
- Meal Breaks
- USERRA
- Federal Contracts
- OFCCP
- Employment Verification
- I-9
- Gender Discrimination
- Title IX
- CAFA
- California Supreme Court
- Legislation
- President Obama
- 42 USC 1983
- Failure to Accomodate
- Reasonable Accomodation
- Employment
- Hiring
- Sanctions
- Sixth Circuit
- Michigan
- Race Discrimination
- Florida
- Workers Compensation
- Corporations
- Standing
- 17200
- Statute of Limitations
- UCL
- Subpoena
- Fifth Circuit
- Travel Time
- Deaf
- Dues
- Class Waiver
- Ohio
- Witness Statements
- Military
- Illinois
- Virginia
- Wrongful Termination
- Religion
- DACA
- Investigation
- Independent Contractors
- Eavesdropping
- Dodd-Frank
- Whistleblower
- Severance
- FICA
- Rehabilitation Act
- Right-to-Sue
- Policies
- Social Media
- Loss of Consortium
- Oklahoma
- Pension
- MSHA
- Medical Examination
- Exhaustion of Remedies
- Election
- WARN
- Title VII Retaliation; Faragher/Ellerth
- Salespersons
- EPA
- Equal Pay Act
- Racial Harassment
- Cat's Paw
- National Origin Discrimination
- Partnership
- FEHA
- Medical Condition
- Background Checks
- Gender Identity
- Georgia
- Ministerial Exception
- FAA
- SSA
- Sex Discrimination
- Education
- Misclassification
- Choice of Law
- Policy
- SOX
- Public Records
- Personnel Record
- Documentation
- Gross
- McDonnell Douglas
- Complaints
- RICO
- Maternity Leave
- Regarded As
- Equal Protection
- ADAAA
- Ledbetter Act
- Recess Appointment
- White House
- California Employment
- Agreements
- Seperation
- DOT
- FMCSA
- Attorney's Fees
- Reporting Time Pay
- Split Shift Pay
- DOL
- Punitive Damages
- Injuries
- Restrictions
- Stock
- Trial
- Verdict
- Back Pay
- Polygraph
- Damages
- LMRA
- VEBA
- Layoff
- Civil Rights
- Defamation
- OSHA
- AMD
- HIV
- HR
- Bankruptcy Code
- Secretary Solis
- Marital Discrimination
- Las Vegas
- Federal Register
- PTSD
- Iraq
- Fourteenth Amendment
- Forum-Selection Clause