Notices for Mass Layoffs During the Pandemic

California and the federal government each have WARN Acts (Worker Adjustment and Retraining Notification) that require notices be given to employees and certain government agencies when a layoff involves 50 or more employees in a 30-day period.  Employers should consult with counsel as there are numerous variables.  Below is a general summary.

California WARN

Generally, the California WARN Act applies to employers with 75 or more employees in specific circumstances. It requires that employers provide 60 days’ advance notice prior to a mass layoff, relocation, or termination. Failure to provide 60 days’ notice can result in severe liability – up to 60 days’ of back pay, plus benefits for all laid-off, relocated, or terminated employees, in addition to civil penalties.

On March 17, 2020, Governor Newsom suspended certain provisions of California’s WARN Act – those that impose liability and penalties. His executive order waives the 60-day notice requirement for the duration of the COVID-19 emergency, but it does not waive the notice requirement itself. The order applies where COVID-19-related business considerations result in mass layoffs, relocations, or terminations that were not reasonably foreseeable as of the time that notice would have been required.

To qualify for the waiver of the 60-day notice requirement under the order, employers must:

  1. Give written notice to employees, the EDD, the local workforce investment board, and the chief elected official of the local city and county government;
  2. Give as much notice as is “practicable,” along with a brief statement of the basis for reducing the 60-day notification period; and
  3. For written notice given after March 17, 2020, include the following statement: “If you have lost your job or been laid off temporarily, you may be eligible for Unemployment Insurance (UI). More information on UI and other resources available for workers is available at labor.ca.gov/coronavirus2019.”

Federal WARN Act

The federal WARN act applies to employers of 100 or more and also requires 60 days’ notice of plant closings and mass layoffs. Unlike the state act, though, the federal law contains exceptions for “unforeseeable circumstances” and for furloughs under certain circumstances.  Triggering events vary. The notice requirements are much the same as California’s.  In either case, attorneys should be consulted.