As weather cools down, WARN Act lawsuits likely to heat up

The global COVID-19 pandemic continues to affect employers with no clear end in sight. While the prospect of a functioning vaccine may have to wait for a while, a spike in Worker Adjustment and Retraining Notification (WARN) Act litigation may be on the horizon.

‘Hurricane warning of sorts’

Furloughs and workforce reductions have been prevalent since mid-March 2020, leaving millions of employees without jobs or on extended leaves while they wait (and hope) to be recalled to work. Only about a dozen WARN Act lawsuits have been filed to date, but the remainder of 2020 could become a hurricane season of sorts for litigation as:

• Layoffs extend beyond six months;
• New workforce reductions occur; and
• More employees’ attorneys shift their attention to the claims.

As the days and weeks go by, your ability to assert the “unforeseeable business circumstances” defense for providing less than 60 days’ notice of a “mass layoff” or “plant closing” has diminished.

When shortened notice periods are allowed

Employers must ordinarily give 60 days’ advance notice of a mass layoff or plant closing before laying off a certain number of employees or closing down an establishment. The WARN Act allows for a shortened notice period, however, when the mass layoff or plant closing is caused by an unforeseeable business circumstance, which would surely seem to cover the unprecedented COVID-19 pandemic.