WARN Act Notice Requirements for Seasonal Employers

When an employer transitions to a seasonal operation, questions often arise regarding the applicability of the Worker Adjustment and Retraining Notification Act (WARN Act) and whether such a change triggers the Act’s notice requirements. Understanding the WARN Act, including how it applies specifically to seasonal employment, is essential for employers to ensure compliance and safeguard employees’ rights.

What is the WARN Act?

The WARN Act requires certain employers to provide at least 60 calendar days’ advance written notice of covered plant closings and mass layoffs. WARN notice is required when there is an employment loss, which includes a temporary layoff or furlough lasting longer than six months.

Plant closures are not limited to the shutdown of a factory. Rather, it is defined as the permanent or temporary shutdown of a single site of employment, or one or more facilities or operating units within a single site of employment, that results in an employment loss for 50 or more employees, excluding part-time employees, during any 30-day period.

A mass layoff is a reduction in force that does not result from a plant closing, but that results in an employment loss at a single site of employment during any 30-day period for either:

• 50 – 499 employees, if they constitute at least 33% of the active workforce at that site (excluding part-time employees), or
• 500 or more employees, regardless of percentage.

What is the Purpose of the WARN Act?

WARN notices allow workers and their families transition time to seek alternative jobs or enroll in skills-training programs. Employers must provide the State Rapid Response Dislocated Worker Unit with the WARN notice, so affected employees may receive on-site information about employment and retraining services designed to help affected employees find new jobs.

Which Employers Must Comply with the WARN Act?

WARN applies to employers with 100 or more full-time employees. Covered employers must provide at least 60 calendar days’ advance written notice of:

• A worksite closing affecting 50 or more employees, or
• A mass layoff affecting at least 50 employees and one-third of the worksite’s total workforce, or 500 or more employees, at a single site of employment during any 90-day period.

Not all dislocations require a full 60-day notice period. The WARN Act provides limited exceptions where employers can demonstrate the layoffs or worksite closings are due to faltering companies, unforeseen business circumstances, or natural disasters. Even when an exception applies, employers must provide as much notice as practicable.

Which Employees Are Protected?

Part-time employees are excluded when determining whether a plant closing or mass layoff threshold has been met, but they are entitled to receive WARN notice if a covered event occurs.

WARN protections also extend to employees who are on temporary layoff but have a reasonable expectation of recall, including employees on workers’ compensation leave, medical leave, parental leave, or other similar situations.

There are certain classifications of employees who are not protected by WARN and are therefore not entitled to WARN notices. For example, the WARN notice requirement generally does not apply to employees hired for a specific project who were informed that their employment was limited to that project, common in the construction and agricultural industries. However, employers that employ both temporary project-based workers and permanent employees must still provide WARN notice if enough permanent employees experience an employment loss that triggers the Act. The exception continues to apply only to workers hired exclusively for a specific project.

Seasonal or temporary employment exceptions may not apply to workers who are employed by the same employer year after year, if those workers are employed for more than six months in a year.

WARN Notice Requirements

When WARN is triggered, the notice to affected employees must include:

• A statement indicating whether the planned action is expected to be permanent or temporary and, if the entire plant is closed, a statement to that effect.
• The expected date when the plant closing or mass layoff will commence and the anticipated separation date for each affected employee.
• An indication of whether bumping rights (the right to take another employee’s position based on seniority, rather than being laid off) exist.
• The name and telephone number of a company official who can provide further information.

Bottom Line

When an employer transitions to seasonal operations during portions of the year, WARN is generally not triggered if the employees do not experience an employment loss exceeding six months. However, WARN may be triggered if the employees are being reclassified as temporary workers and one-third of the workforce experiences an employment loss extending beyond six months.

Employers should also be mindful that states may have adopted their own versions of the WARN Act, which often mirror federal requirements but include important distinctions. For example, Wisconsin law contains specific exemptions for seasonal employers. Employers contemplating a temporary or permanent shutdown should consult legal counsel to ensure compliance with applicable WARN notice obligations.

This article, slightly modified to note recent updates, was featured online in the Wisconsin Employment Law Letter and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.