U.S. Well Services Ignored Requirement to Provide Advance Notice of Layoffs; Now Seeks to Weaken Critical Federal Protections Under Guise of Pandemic

In Brief Filed Wednesday, Unions Underscore WARN Act’s Clear Requirements, Explain Importance of Advance Notice of Layoffs to Workers and Communities

Washington, D.C. — Today, the Communications Workers of America (CWA), the Service Employees International Union (SEIU), the American Federation of Teachers (AFT), and the American Federation of State, County and Municipal Employees (AFSCME) filed a brief in the U.S. Court of Appeals for the Fifth Circuit in Easom v. U.S. Well Services, Inc. in support of workers’ appeal of a district court decision that would weaken statutory protections for workers facing layoffs.

The case centers on working people’s right to be notified ahead of a mass layoff as required by the Worker Adjustment and Retraining (WARN) Act. The unions’ brief, filed by Democracy Forward, explains that the district court’s decision in favor of U.S. Well Services incorrectly interprets the WARN Act, which requires employers to provide advance notice of layoffs. The decision contradicts the language and structure of the statute, ignores its legislative history, and disregards the Department of Labor’s determination on the matter.

“Workers have been faced with making difficult decisions throughout the pandemic. The last thing working people need is to worry about waking up one day and finding out they have been laid off without being given any time to prepare,” said CWA President Chris Shelton. “Protecting the rights and dignity of workers, who keep our economy running even in the worst of times, has to be our top priority. The WARN Act ensures just that. Undermining it will embolden companies to abandon their responsibility to workers and prioritize profits. We cannot let that happen.”

“The WARN Act’s protections are critically important for working families especially when so many are still dealing with the impact of the COVID-19 pandemic and its subsequent economic downturn in their daily lives. This is especially true as our federal government faces the threat of a shutdown. 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 in the case of a layoff,” said Mary Kay Henry, International President of the Service Employees International Union. “As we fight to move our country forward, our justice system should focus on protecting the rights of working people, not unscrupulous corporations who have repeatedly used this perilous time as an excuse to behave badly. The WARN Act must be upheld to help ensure more workers are respected, protected, and paid in these uncertain times.”

“It’s no secret that the COVID-19 pandemic and ensuing recession hurt American businesses and workers alike — the U.S. lost tens of millions of jobs, forcing working people to make agonizing choices about feeding their families, accessing healthcare, and keeping their homes,” said American Federation of Teachers President Randi Weingarten. “But even in the worst of times, both human decency and the law — stipulated in the WARN Act — require large companies to provide notice to their employees of mass layoffs, and those companies must be held accountable for the impact. As we continue to navigate our COVID economic recovery, we cannot allow large companies to shirk their responsibilities to the very people who make those companies run.”

“Getting laid off is a crushing experience, a blow to your pride, and a threat to your family’s security. Providing workers with advance notice of mass layoffs is the bare minimum an employer can do to ease the hardship just a little bit. And it also happens to be the law,” said AFSCME President Lee Saunders. “Using the pandemic as an excuse to avoid this requirement is an underhanded tactic that does not stand up to legal scrutiny. To get our economy back on track, we have to start showing decency and respect toward the working people who are helping us all get through this crisis.”

Extensive evidence exists detailing the immense harm to individual workers and communities when workers are laid off, en masse, without sufficient warning. Long-term unemployment can result in workers struggling to find work with comparable pay and benefits, decreasing long-term earning potential. Displaced workers face an increased risk of mental and physical health issues, such as depression and anxiety. And mass layoffs and plant closings have a ripple effect in towns and communities.

Congress enacted the WARN Act to minimize some of the negative impacts caused by mass layoffs. The law generally requires employers to provide workers with a 60-day notice period ahead of a plant closing or mass layoff. Advance notice is critical to protecting workers, their families, and their communities. It enables state and local governments to help laid-off employees find new jobs, gives workers time to retrain, apply for new jobs, and adjust their financial circumstances before losing income. And it places families in the best position possible to protect their access to food, healthcare, and education.

There are three limited exceptions to the WARN Act’s requirement of 60-day advance notice: a “faltering company” exception, an “unforeseeable business circumstances” exception, which requires employers to provide as much notice as possible, and a “natural disaster” exception, which allows an employer to provide after-the-fact notice.

U.S. Well Services laid off many employees without providing any notice. It has argued that under the “natural disaster” exception it was relieved of its obligation to provide any advance notice of the layoffs because COVID-19 caused an economic downturn that, in turn, cut into its revenue and necessitated laying off employees. That argument is incorrect.

As the unions detail in their brief, the “natural disaster” exception 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.

“The WARN Act helps ensure working people have as much advance notice as possible before being laid off so that they have the best chance of preparing for the future and providing for themselves and their families,” said Democracy Forward President and CEO Skye Perryman. “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.”

The amicus brief was filed in the U.S. Court of Appeals for the Fifth Circuit on October 6, 2021. Read it here.

###

Democracy Forward is a nonprofit legal organization founded in 2017 to litigate challenges to unlawful government action on behalf of organizations, individuals, and municipalities. The organization has taken 650 legal actions and reversed dozens of harmful policies. Democracy Forward is expanding its work, building on its success to confront unlawful threats to democracy and social progress.

The Communications Workers of America represents working people in telecommunications, customer service, media, airlines, health care, public service and education, manufacturing, tech, and other fields.

The Service Employees International Union (SEIU) unites 2 million diverse members in the United States, Canada and Puerto Rico. SEIU members working in the healthcare industry, in the public sector and in property services believe in the power of joining together on the job to win higher wages and benefits and to create better communities while fighting for a more just society and an economy that works for all of us, not just corporations and the wealthy.

The AFT represents 1.7 million pre-K through 12th-grade teachers; paraprofessionals and other school-related personnel; higher education faculty and professional staff; federal, state and local government employees; nurses and healthcare workers; and early childhood educators.

AFSCME’s 1.4 million members provide the vital services that make America happen. With members in communities across the nation, serving in hundreds of different occupations — from nurses to corrections officers, child care providers to sanitation workers — AFSCME advocates for fairness in the workplace, excellence in public services and freedom and opportunity for all working families.

Press Contacts

Megan Uzzell
Democracy Forward
muzzell@democracyforward.org
(202) 701-1784

Biruk Assefa
CWA
Bassefa@cwa-union.org
(202) 805-9125

Keiana Greene-Page
SEIU
media@seiu.org

Ori Korin
American Federation of Teachers
okorin@aft.org
(202) 374-6103

Natalia Pérez Santos
AFSCME
nperezsantos@afscme.org
(202) 429-4309