In recent months, we have seen an uptick in the number of layoffs and plant closings, especially in the manufacturing sector. Some employers may not have gone through such layoffs in many years, and may not be familiar with the notice requirements of the federal Worker Adjustment and Retraining Notification (WARN) Act. The WARN Act requires employers to provide 60 days' advance written notice of a mass layoff or plant closing to affected employees and government officials. In most situations, WARN is triggered when the layoffs exceed both 50 employees and one-third of the workforce at that individual worksite.

While that calculation appears straightforward, WARN requires that companies combine employees laid off at separate times for purposes of determining these thresholds. When calculating these numbers, employers should use two layoff "windows" under WARN. First, any layoffs conducted within 30 days of each other are combined for WARN jurisdiction regardless of the specific business reasons for the decisions. Second, any layoffs within 90 days must be combined if they result from the same or similar business reasons.

When considering layoffs, employers should carefully calculate the number of workers affected by these windows. In some cases, employers discover that previous layoffs within a window become subject to WARN requirements based on later actions. Because those employees initially affected did not receive notice, the subsequent layoffs result in WARN violations.

Employers should calculate these WARN thresholds when planning layoffs, looking both forwards and backwards to fully determine notice requirements. In some situations, employers decide to delay additional layoffs to avoid them being combined with earlier ones for WARN purposes. Violations of WARN can trigger claims for unpaid wages and benefits, as well as civil monetary penalties. Careful planning can help avoid inadvertent violations of federal law.

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