The Latest: On June 15, the Fifth Circuit reversed the lower court’s decision and remanded the matter for proceedings consistent with the Fifth Circuit’s opinion, holding that “In light of these principles, we recognize that Congress explicitly left a gap for the Department of Labor to fill by requiring the Secretary of Labor to “prescribe such regulations as may be necessary to carry out [the WARN Act].” 29 U.S.C. § 2107(a).”

A separate court in Florida also rejected a misinterpretation of the Act that would harm workers laid off due to economic downturns caused by COVID-19.

In each of these cases, the court ruled just as we argued in our brief on behalf of a coalition of unions and workers’ rights advocates.

BACKGROUND

Congress enacted the Worker Adjustment and Retraining Act to require workers to receive 60-days advance notice when they are facing mass layoffs. This is an essential protection for workers, families and  communities that enables state and local governments to help laid-off employees find new jobs, and gives workers time to retrain, apply for new jobs, and adjust their financial circumstances before losing income. However, Congress’s intent to protect workers through the WARN Act has been under attack in the courts.

Indeed, the promise of democracy includes economic security, especially amid the COVID-19 pandemic, when millions have lost jobs. At Democracy Forward, we will continue to fight for teachers, workers, and others who form the backbone of our country in the years to come.

BRIEFS

In March 2020, U.S. Well Services laid off many of its employees without providing any notice. Workers brought suit, but a district court accepted the company’s flawed legal position that, because of COVID-19, the “natural disaster” exception to the WARN act applied, thereby relieving U.S. Well Services of its obligation to provide any advance notice. The workers appealed the court’s decision to the Fifth Circuit.

On October 6th, 2021, we filed a brief on behalf of leading unions urging the Fifth Circuit to reject the lower court’s incorrect interpretation of the WARN Act — a reading that undermines Congress’s intent to protect workers. 

As detailed in the brief, the “natural disaster” exception to the WARN Act requires employers to demonstrate that a mass layoff is a direct result of a natural disaster. U.S. Well Services’ layoffs were not. In cases like this, where a layoff is caused by an economic downturn, the WARN Act requires employers to provide workers as much advance notice as possible.

Separately, in Jones v. Scribe Opco Inc (Bic Graphics), the defendant furloughed hundreds of employees and then, because of the “economic downturn caused by the COVID-19 pandemic,” permanently laid off many of those workers it had furloughed—without providing notice in accordance with its duty under the WARN Act.

IN THEIR WORDS

  • Chris Shelton, President of the Communications Workers of America– “Now more than ever, we have to guarantee protections for workers who are facing unprecedented challenges from the pandemic and ongoing workplace issues. The WARN Act is an important check on corporate power, requiring companies to provide sufficient notice to workers before massive layoffs. Instead of taking responsibility, companies in clear violation of this law are seeking to undermine it. We will not stand for it. We will continue to join with our allies to defend workers’ rights and hold companies accountable.”
  • Mary Kay Henry, International President of the Service Employees International Union– “This is not a gray area — The WARN Act clearly requires employers to give workers advance notice before a layoff due to COVID policies. No matter what you look like, where you’re from or what you do for a living, every person working in our country needs the ability to plan for their immediate future. As we look to move past the pandemic, our justice system cannot continue to allow unscrupulous corporations to use any excuse to deny workers their rights. It is vital that the Court upholds the WARN Act to ensure every worker is respected, protected, and paid in these uncertain times.”
  • Randi Weingarten, President of the American Federation of Teachers– “Working people keep our economy afloat, yet the gap between the wealthiest Americans and the rest of us has never been larger. Too many families struggle to access the middle class and face heartbreaking choices between basics like housing, groceries and medication, yet corporate profits continue to soar. The WARN Act helps level the playing field, offering working people critical protections on the job, including adequate warning from their employers prior to major layoffs. In this brief, we join our union family and allies in urging the court to reject any misinterpretation of this important law and to continue requiring large companies to do right by their workforces and provide ample notice to any worker who is at risk of losing their livelihood.”
  • Cathy Ruckelshaus, General Counsel & Legal Director of the National Employment Law Project– “The National Employment Law Project (NELP) believes that all workers have the right to dignity at work and to earn a living, including sustaining themselves when they are out of work while looking for another job. The WARN Act provides a minimum notice requirement on employers deciding to shut down or lay off workers and any exception to that basic fairness rule should be strictly scrutinized. The company here could have provided more notice to its workers, and it should be held to account for failing to do so.”
  • Skye Perryman, CEO & President, Democracy Forward– “Advance notice benefits workers’ economic security and mental health and helps promote communities’ stability in the face of mass layoffs. We’re honored to represent leading unions in urging the court to reject an incorrect interpretation of the WARN Act’s requirements that will deny workers advance notice of layoffs—hurting them, their families, and their communities.”
Last Updated: June 16, 2022

Karianne Jones

Senior Counsel

Litigating cases on issues involving, among other things, gender justice, civil rights, and workplace justice.

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Jeffrey Dubner

Deputy Legal Director

Litigating challenges to unlawful actions, abuses of power, and threats to democracy on behalf of those who are harmed.

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