The Federal Oversight, Reform, and Enforcement of the WARN Act

Pending Legislation

Pending Legislation - FORWARN Act

Introduced just recently into the House and Senate, the Federal Oversight, Reform, and Enforcement of the WARN Act (“FOREWARN Act”) would dramatically amend the Worker Adjustment and Retraining Notification Act (“WARN Act”).  The FOREWARN Act was introduced in response to the significant rise in factory closings and mass layoffs currently being implemented in the United States.

Initially, the FOREWARN Act would require employers to give at least 90 days advance written notification, as opposed to current requirement of 60 days, of a covered plant closing or mass layoff.  In addition to the currently required recipients of WARN Act notices, new notices would also need to be sent to the Secretary of Labor and the governor of the state where the plant closing or mass layoff will occur.  Additionally, under the FOREWARN Act, employers with at least 75 full or part-time employees (down from 100 full-time employees) would be covered under the WARN Act.  Further, a covered “plant closing” would be one affecting at least 25 full or part-time employees (down from 50 full-time employees) and a covered “mass layoff” would be one that affects at least 25 employees (down from 33% of full-time employees amounting to at least 50 workers, or 500 workers).  A “mass layoff” would also no longer have to involve a single site of employment.

Among other significant changes, the FOREWARN Act would also modify the required contents of a WARN Act notice, obligate covered employers to post a WARN Act poster and increase the potential damages to an aggrieved employee to double back pay for each day the employer was required to provide notice, along with interest.  Finally, the FOREWARN Act would also prohibit an employee from waiving, deferring or losing any rights under the WARN Act without the approval of the Secretary of Labor or the attorney general of the relevant state or unless a private attorney on behalf of the affected employee negotiates the waiver/agreement.

The FOREWARN Act has been referred to the Senate Health, Education, Labor and Pension Committee and the House Committee on Education and Labor.

Arnstein & Lehr LLP Partner, E. Jason Tremblay, recently published the 2009 Edition of The Employment Law Toolkit.

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