/* Full text of the WARN act (Plant Closing Act) regulations

follow. These regulations implement the Plant Closing Act and the

Act should be read in conjunction with these regulations. */

20 C.F.R. s 639.3 CODE OF FEDERAL REGULATIONS

TITLE 20--EMPLOYEES' BENEFITS

CHAPTER V--EMPLOYMENT AND TRAINING ADMINISTRATION, DEPARTMENT OF

LABOR PART 639--WORKER ADJUSTMENT AND RETRAINING NOTIFICATION s

639.3

Definitions. (a) Employer. (1) The term "employer" means any

business enterprise that employs-- (i) 100 or more employees,

excluding part-time employees; or (ii) 100 or more employees,

including part-time employees, who in the aggregate work at least

4,000 hours per week, exclusive of hours of overtime. Workers on

temporary layoff or on leave who have a reasonable expectation of

recall are counted as employees. An employee has a "reasonable

expectation of recall" when he/she understands, through

notification or through industry practice, that his/her

employment with the employer has been temporarily interrupted and

that he/she will be recalled to the same or to a similar job. The

term "employer" includes non-profit organizations of the

requisite size. Regular Federal, State, local and federally

recognized Indian tribal governments are not covered. However,

the term "employer" includes public and quasi-public entities

which engage in business (i.e., take part in a commercial or

industrial enterprise, supply a service or good on a mercantile

basis, or provide independent management of public assets,

raising revenue and making desired investments), and which are

separately organized from the regular government, which have

their own governing bodies and which have independent authority

to manage their personnel and assets.

(2) Under existing legal rules, independent contractors and

subsidiaries which are wholly or partially owned by a parent

company are treated as separate employers or as a part of the

parent or contracting company depending upon the degree of their

independence from the parent. Some of the factors to be

considered in making this determination are (i) common ownership,

(ii) common directors and/or officers, (iii) de facto exercise of

control, (iv) unity of personnel policies emanating from a common

source, and (v) the dependency of operations.

(3) Workers, other than part-time workers, who are exempt from

notice under section 4 of WARN are nonetheless counted as

employees for purposes of determining coverage as an employer.

(4) An employer may have one or more sites of employment under

common ownership or control. An example would be a major auto

maker which has dozens of automobile plants throughout the

country. Each plant would be considered a site of employment,

but there is only one "employer", the auto maker.

(b) Plant closing. The term "plant closing" means 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, if the shutdown results in an "employment loss"

during any 30-day period at the single site of employment for 50

or more employees, excluding any part-time employees. An

employment action that results in the effective cessation of

production or the work by a unit, even if a few employees remain,

is a shutdown. A "temporary shutdown" triggers the notice

requirement only if there are a sufficient number of

terminations, layoffs exceeding 6 months, or reductions in hours

of work as specified under the definition of "employment loss."

(c) Mass layoff. (1) The term "mass layoff" means a reduction in

force which first, is not the result of a plant closing, and

second, results in an employment loss at the single site of

employment during any 30-day period for: (i) At least 33 percent

of the active employees, excluding part-time employees, and (ii)

At least 50 employees, excluding part-time employees. Where 500

or more employees (excluding part-time employees) are affected,

the 33% requirement does not apply, and notice is required if the

other criteria are met. Plant closings involve employment loss

which results from the shutdown of one or more distinct units

within a single site or the entire site. A mass layoff involves

employment loss, regardless of whether one or more units are shut

down at the site.

(2) Workers, other than part-time workers, who are exempt from

notice under section 4 of WARN are nonetheless counted as

employees for purposes of determining coverage as a plant closing

or mass layoff. For example, if an employer closes a temporary

project on which 10 permanent and 40 temporary workers are

employed, a covered plant closing has occurred although only 10

workers are entitled to notice.

(d) Representative. The term "representative" means an exclusive

representative of employees within the meaning of section 9(a) or

8(f) of the National Labor Relations Act or section 2 of the

Railway Labor Act.

(e) Affected employees. The term "affected employees" means

employees who may reasonably be expected to experience an

employment loss as a consequence of a proposed plant closing or

mass layoff by their employer. This includes individually

identifiable employees who will likely lose their jobs because of

bumping rights or other factors, to the extent that such

individual workers reasonably can be identified at the time

notice is required to be given. The term "affected employees"

includes managerial and supervisory employees, but does not

include business partners. Consultant or contract employees who

have a separate employment relationship with another employer and

are paid by that other employer, or who are self-employed, are

not "affected employees" of the business to which they are

assigned. In addition, for purposes of determining whether

coverage thresholds are met, either incumbent workers in jobs

being eliminated or, if known 60 days in advance, the actual

employees who suffer an employment loss may be counted. (f)

Employment loss.

(1) The term "employment loss" means (i) an employment

termination, other than a discharge for cause, voluntary

departure, or retirement, (ii) a layoff exceeding 6 months, or

(iii) a reduction in hours of work of individual employees of

more than 50% during each month of any 6-month period. (2) Where

a termination or a layoff (see paragraphs (f)(1)(i) and (ii) of

this section) is involved, an employment loss does not occur when

an employee is reassigned or transferred to employer-sponsored

programs, such as retraining or job search activities, as long as

the reassignment does not constitute a constructive discharge or

other involuntary termination.

(3) An employee is not considered to have experienced an

employment loss if the closing or layoff is the result of the

relocation or consolidation of part or all of the employer's

business and, prior to the closing or layoff-- (i) The employer

offers to transfer the employee to a different site of employment

within a reasonable commuting distance with no more than a

6-month break in employment, or (ii) The employer offers to

transfer the employee to any other site of employment regardless

of distance with no more than a 6-month break in employment, and

the employee accepts within 30 days of the offer or of the

closing or layoff, whichever is later.

(4) A "relocation or consolidation" of part or all of an

employer's business, for purposes of paragraph s 639.3(h)(4),

means that some definable business, whether customer orders,

product lines, or operations, is transferred to a different site

of employment and that transfer results in a plant closing or

mass layoff.

(g) Unit of local government. The term "unit of local government"

means any general purpose political subdivision of a State, which

has the power to levy taxes and spend funds and which also has

general corporate and police powers. When a covered employment

site is located in more than one unit of local government, the

employer must give notice to the unit to which it determines it

directly paid the highest taxes for the year preceding the year

for which the determination is made. All local taxes directly

paid to the local government should be aggregated for this

purpose.

(h) Part-time employee. The term "part-time" employee means an

employee who is employed for an average of fewer than 20 hours

per week or who has been employed for fewer than 6 of the 12

months preceding the date on which notice is required, including

workers who work full-time. This term may include workers who

would traditionally be understood as "seasonal" employees. The

period to be used for calculating whether a worker has worked "an

average of fewer than 20 hours per week" is the shorter of the

actual time the worker has been employed or the most recent 90

days.

(i) Single site of employment.

(1) A single site of employment can refer to either a single

location or a group of contiguous locations. Groups of

structures which form a campus or industrial park, or separate

facilities across the street from one another, may be considered

a single site of employment.

(2) There may be several single sites of employment within a

single building, such as an office building, if separate

employers conduct activities within such a building. For

example, an office building housing 50 different businesses will

contain 50 single sites of employment. The offices of each

employer will be its single site of employment.

(3) Separate buildings or areas which are not directly connected

or in immediate proximity may be considered a single site of

employment if they are in reasonable geographic proximity, used

for the same purpose, and share the same staff and equipment. An

example is an employer who manages a number of warehouses in an

area but who regularly shifts or rotates the same employees from

one building to another.

(4) Non-contiguous sites in the same geographic area which do not

share the same staff or operational purpose should not be

considered a single site. For example, assembly plants which are

located on opposite sides of a town and which are managed by a

single employer are separate sites if they employ different

workers.

(5) Contiguous buildings owned by the same employer which have

separate management, produce different products, and have

separate workforces are considered separate single sites of

employment.

(6) For workers whose primary duties require travel from point to

point, who are outstationed, or whose primary duties involve work

outside any of the employer's regular employment sites (e.g.,

railroad workers, bus drivers, salespersons), the single site of

employment to which they are assigned as their home base, from

which their work is assigned, or to which they report will be the

single site in which they are covered for WARN purposes.

(7) Foreign sites of employment are not covered under WARN. U.S.

workers at such sites are counted to determine whether an

employer is covered as an employer under s 639.3(a).

(8) The term "single site of employment" may also apply to truly

unusual organizational situations where the above criteria do not

reasonably apply. The application of this definition with the

intent to evade the purpose of the Act to provide notice is not

acceptable.

(j) Facility or operating unit. The term "facility" refers to a

building or buildings. The term "operating unit" refers to an

organizationally or operationally distinct product, operation, or

specific work function within or across facilities at the single

site.

(k) State dislocated worker unit. The term "State dislocated

worker unit" means a unit designated or created in each State by

the Governor under Title III of the Job Training Partnership Act,

as amended by EDWAA.

(l) State. For the purpose of WARN, the term "State" includes the

50 States, the District of Columbia, the Commonwealth of Puerto

Rico, and the U.S. Virgin Islands.

Authority: 29 U.S.C. 2107(a). Source: 54 FR 16064, April 20,

1989, unless otherwise noted.

CODE OF FEDERAL REGULATIONS TITLE 20--EMPLOYEES' BENEFITS CHAPTER

V--EMPLOYMENT AND TRAINING ADMINISTRATION, DEPARTMENT OF LABOR

PART 639--WORKER ADJUSTMENT AND RETRAINING NOTIFICATION s 639.5

When must notice be given?

(a) General rule. (1) With certain exceptions discussed in

paragraphs (b), (c) and (d) of this section and in s 639.9 of

this part, notice must be given at least 60 calendar days prior

to any planned plant closing or mass layoff, as defined in these

regulations. When all employees are not terminated on the same

date, the date of the first individual termination within the

statutory 30-day or 90-day period triggers the 60-day notice

requirement. A worker's last day of employment is considered the

date of that worker's layoff. The first and each subsequent

group of terminees are entitled to a full 60 days' notice. In

order for an employer to decide whether issuing notice is

required, the employer should-- (i) Look ahead 30 days and behind

30 days to determine whether employment actions both taken and

planned will, in the aggregate for any 30-day period, reach the

minimum numbers for a plant closing or a mass layoff and thus

trigger the notice requirement; and (ii) Look ahead 90 days and

behind 90 days to determine whether employment actions both taken

and planned each of which separately is not of sufficient size to

trigger WARN coverage will, in the aggregate for any 90-day

period, reach the minimum numbers for a plant closing or a mass

layoff and thus trigger the notice requirement. An employer is

not, however, required under section 3(d) to give notice if the

employer demonstrates that the separate employment losses are the

result of separate and distinct actions and causes, and are not

an attempt to evade the requirements of WARN.

(2) The point in time at which the number of employees is to be

measured for the purpose of determining coverage is the date the

first notice is required to be given. If this "snapshot" of the

number of employees employed on that date is clearly

unrepresentative of the ordinary or average employment level,

then a more representative number can be used to determine

coverage. Examples of unrepresentative employment levels include

cases when the level is near the peak or trough of an employment

cycle or when large upward or downward shifts in the number of

employees occur around the time notice is to be given. A more

representative number may be an average number of employees over

a recent period of time or the number of employees on an

alternative date which is more representative of normal

employment levels. Alternative methods cannot be used to evade

the purpose of WARN, and should only be used in unusual

circumstances. (b) Transfers. (1) Notice is not required in

certain cases involving transfers, as described under the

definition of "employment loss" at s 639.3(f) of this part. (2)

An offer of reassignment to a different site of employment should

not be deemed to be a "transfer" if the new job constitutes a

constructive discharge.

(3) The meaning of the term "reasonable commuting distance" will

vary with local and industry conditions. In determining what is

a "reasonable commuting distance", consideration should be given

to the following factors: geographic accessibility of the place

of work, the quality of the roads, customarily available

transportation, and the usual travel time.

(4) In cases where the transfer is beyond reasonable commuting

distance, the employer may become liable for failure to give

notice if an offer to transfer is not accepted within 30 days of

the offer or of the closing or layoff (whichever is later).

Depending upon when the offer of transfer was made by the

employer, the normal 60-day notice period may have expired and

the plant closing or mass layoff may have occurred. An employer

is, therefore, well advised to provide 60-day advance notice as

part of the transfer offer.

(c) Temporary employment. (1) No notice is required if the

closing is of a temporary facility, or if the closing or layoff

is the result of the completion of a particular project or

undertaking, and the affected employees were hired with the

understanding that their employment was limited to the duration

of the facility or the project or undertaking.

(2) Employees must clearly understand at the time of hire that

their employment is temporary. When such understandings exist

will be determined by reference to employment contracts,

collective bargaining agreements, or employment practices of an

industry or a locality, but the burden of proof will lie with the

employer to show that the temporary nature of the project or

facility was clearly communicated should questions arise

regarding the temporary employment understandings.

(3) Employers in agriculture and construction frequently hire

workers for harvesting, processing, or for work on a particular

building or project. Such work may be seasonal but recurring.

Such work falls under this exemption if the workers understood at

the time they were hired that their work was temporary. In

uncertain situations, it may be prudent for employers to clarify

temporary work understandings in writing when workers are hired.

The same employers may also have permanent employees who work on

a variety of jobs and tasks continuously through most of the

calendar year. Such employees are not included under this

exemption. Giving written notice that a project is temporary

will not convert permanent employment into temporary work, making

jobs exempt from WARN.

(4) Certain jobs may be related to a specific contract or order.

Whether such jobs are temporary depends on whether the contract

or order is part of a long- term relationship. For example, an

aircraft manufacturer hires workers to produce a standard

airplane for the U.S. fleet under a contract with the U.S. Air

Force with the expectation that its contract will continue to be

renewed during the foreseeable future. The employees of this

manufacturer would not be considered temporary.

(d) Strikes or lockouts. The statute provides an exemption for

strikes and lockouts which are not intended to evade the

requirements of the Act. A lockout occurs when, for tactical or

defensive reasons during the course of collective bargaining or

during a labor dispute, an employer lawfully refuses to utilize

some or all of its employees for the performance of available

work. A lockout not related to collective bargaining which is

intended as a subterfuge to evade the Act does not qualify for

this exemption. A plant closing or mass layoff at a site of

employment where a strike or lockout is taking place, which

occurs for reasons unrelated to a strike or lockout, is not

covered by this exemption. An employer need not give notice when

permanently replacing a person who is deemed to be an economic

striker under the National Labor Relations Act. Non-striking

employees at the same single site of employment who experience a

covered employment loss as a result of a strike are entitled to

notice; however, situations in which a strike or lockout affects

non-striking employees at the same plant may constitute an

unforeseeable business circumstance, as discussed in s 639.9,

and reduced notice may apply. Similarly, the "faltering company"

exception, also discussed in s 639.9 may apply in strike

situations. Where a union which is on strike represents more

than one bargaining unit at the single site, non-strikers

includes the non- striking bargaining unit(s). Notice also is

due to those workers who are not a part of the bargaining unit(s)

which is involved in the labor negotiations that led to the

lockout. Employees at other plants which have not been struck,

but at which covered plant closings or mass layoffs occur as a

direct or indirect result of a strike or lockout are not covered

by the strike/lockout exemption. The unforeseeable business

circumstances exception to 60 days' notice also may apply to

these closings or layoffs at other plants.

PART 639--WORKER ADJUSTMENT AND RETRAINING NOTIFICATION

Authority: 29 U.S.C. 2107(a). Source: 54 FR 16064, April 20,

1989, unless otherwise noted.