If I am Terminating an Employee Does the WARN Act Apply

By Lane V. Erickson, Attorney

Employment ends for positive reasons such as a new job, a resignation or retirement. Employment also ends for more negative reasons such as layoffs, downsizing, job termination or firing. Assuming that you have taken all possible steps to help an employee improve their work performance, it may be time to fire the employee. Here are the legal and the ethical steps in how to fire an employee and ensure that the company’s actions as you fire an employee are above reproach when faced with the necessity of terminating a large number of employees at the same time. Commonly known as a “layoff” employers must often take several proactive steps in carrying this process out legally and correctly.

The Worker Adjustment and Retraining Notification Act (WARN Act) is administered by the U.S. Department of Labor Employment and Training Administration (DOLETA). It requires most employers with 100 or more employees to provide employees, bargaining representatives of the employees (i.e., unions), and specific government agencies at least 60 days notice of any plant closing and mass layoff. The purpose of the WARN Act is to give workers and their families some transition time to prepare for the prospective loss of employment, to seek a new job, and, if necessary, to seek training in a new skill or retraining in an existing skill that will allow the workers to obtain replacement work.

Generally, WARN covers employers with 100 or more employees, not including:

• employees who have worked less than six (6) months in the last 12 months, and

• employees who work an average of less than 20 hours a week. Employers must provide the WARN notice to all employees, including managers and supervisors. An employer must provide the required notice when it closes a plant or effectuates a mass layoff. The number of affected workers is the total number laid off during a 30day (or in some cases 90 day) period. A plant closing includes:

• the closing of a facility for more than six (6) months,

• the shutdown of an operating unit for more than six (6) months, or

• when 50 or more employees are laid off during any 30 day period at a single location. A mass layoff occurs when a layoff, lasting at least six months, affects either:
  • 500 or more workers, or
  • at least 33% of the workforce when the layoff affects between 50 and 499 workers.

If you are an employer of a large number of employees and have questions about whether the WARN Act applies to you, we can help. Call us toll free at 877-232-6101 or 208-232-6101 for a consultation with Lane Erickson and the Racine Olson team of Employment Law attorneys in Idaho. You can also email Lane Erickson directly at lve@racinelaw.net. We will answer your Idaho Employment Law questions and will help you solve your Idaho Employment Law problems.

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