Complete Home & Office Legal Guide/Complete Home and Office Legal Guide (Chestnut) (1993).ISO/stat/other/warn.asc

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/* 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.