The Sugar Law Center for Economic and Social Justice is a national, non-profit organization, advocating for working people and their communities. We work for economic and social justice by binding corporations and government to their legal and ethical responsibilities. The Sugar Law Center has been at the forefront of WARN Act litigation since 1992. Together with our cooperating attorneys, the Law Center has represented thousands of workers and in hundreds of WARN Act cases throughout the country.
The Sugar Law Center is affiliated with the National Lawyer's Guild.
Over the summer, defense contractors have threatened to issue blanket WARN Act notices of potential layoffs to all civilian employees on Nov. 2. The threats are the result of massive across-the-board sequestration cuts to the federal budget that are scheduled to take effect on January 2, 2013. Without a budget compromise in Congress, federal contractors anticipate significant layoffs resulting from the sequestration cuts.
In response the U.S. Department of Labor has issued a guidance letter stating that due to the contingent nature of the cuts, the unknown impact on particular federal contracts and contractors, and other contingencies, the layoffs are presently unforseeable. The Department of Labor further noted that blanket notices to all employees are not consistent with the purposes of the WARN Act, which seeks to inform those workers who are reasonably anticipated to be laid off and to provide them with an opportunity to seek other employment in advance of job loss.
Sen. Michael B. Enzi (R-Wyo.) has taken a lead in questioning the DOL and coming to the defense of existing WARN Acts requirements as applied to federal contractors. We would otherwise applaud such efforts had WARN Act reforms not stalled before the Senate H.E.L.P. Committee (upon which Sen. Enzi sits) due to opposition within his party. In light of his recent opinions however, we look forward to his strong support and leadership to strengthen existing WARN Act requirements as new bills come before his committee in the future.
The United States Congress and a number of state legislatures had WARN Act reform legislation pending for much of the past year. Workers rights advocates saw one notable victory and a number of initiatives that lays the groundwork for future efforts. In too many instances however, good bills were introduced but saw no meaningful action after being referred to legislative committee. Following entries provide a recap of legislative initiatives that were put forward and/or considered by federal and state legislatures during the previous year.
United States Congress: The FOREWARN Act of 2009 was introduced before the House of Representatives by Rep. George Miller (CA-7) and before the Senate by Sen. Sherrod Brown (OH). The House bill received bi-partisan support among its co-sponsors. Sen. Brown also introduced the Regional Economic Recovery Coordination Act of 2009 and Rep. Guiterriz (IL-4) introduced the Alert Laid Off Employees in Reasonable Time Act. Each of these bills were referred to committees. However, to the disappointment of workers rights advocates, none saw further action during the 111th Congress. Rep. Gutierrez, Rep. Miller and Sen. Brown will be returning to join the 112th Congress and it is hoped that WARN Act reform will be reintroduced and pushed forward in the new Congress.
California: In California, the state legislature considered legislation to improve the state’s WARN Act by extending the notice period from 60 to 90 days. The bill was introduced by Assemblymember Sandré Swanson. The bill was referred to but did not make it out of committee. Assemblymember Swanson was re-elected in November and will return to the legislature in 2011.
Massachusetts: The Commonwealth of Massachusetts has been considering two bills that would improve the state’s exising advance notice laws. In the House, an Act Relative to the Notification of Large Job Layoffs, House No. 1847 was introduced by Representative Michael Rush. In the Senate, a similar bill was introduced by Senators Anthony Petruccelli, Gloria Fox, Willie Mae Allen and Elizabeth Malia. Both bills were referred to committee, but saw no further action during this legislative session.
Minnesota: Since 2009, the Minnesota state legislature has been considering bills that would make the state’s voluntary advance notice guidelines binding law, enforceable by the state labor commissioner. The bills have been pending before state House and Senate committees for more than a year and will have to be re-introduced if they are to be considered during the next legislative session. In the state House, the bill was authored by Representatives Ryan Winkler, John Ward, and Denise Dittrich. In the state Senate, the bill was authored by Senator David Tomassoni. Each of the authors were re-elected to their offices during elections in November, 2010.
New Hampshire: New Hampshire passed state WARN Act legislation in 2009 and the law became effective on January 1, 2010.
New Jersey: Legislators in New Jersey re-introduced several bills during 2010 that would strengthen the state’s Millville Dallas Airmotive Plant Job Loss Notification Act. The bills however did not make it out of committee. If past history is any indication, the bills are likely to be re-introduced during the next legislative session.
New Mexico: In early 2010, the New Mexico legislature considered a state WARN Act bill introduced by Rep. Mimi Stewart. The bill passed the New Mexico House of Representatives and then was referred to the state Senate. Unfortunately, after intensive lobbying and rumors of a catered barbeque dinner curtesy of corporate lobbyists, the Senate Corporations and Transportation Committee tabled the bill during a late session and the bill then died in committee. The bill was supported by Governor Bill Richardson. Rep. Mimi Stewart returns to the New Mexico legislature next year; however a new governor will take office in 2011.
Ohio: State representative Kenny Yuko introduced a state WARN Act bill before the Ohio General Assembly earlier this year. The bill was referred to the House Commerce & Labor Committee. The committee however took no action on the bill before the end of the legislative session. Rep. Yuko returns to the Ohio House of Representatives and will hopefully continue to pursue the issue during the next legislative session.
Pennsylvania: In 2010, Representatives White, Belfanti, Bradford, Brennan, Daley, DePasquale, Freeman, Gibbons, Hornaman, Josephs, Kula, Murt, M. O'Brien, Quinn, Santoni, Siproth, K. Smith and Thomas introduced the Pennsylvania Workers Adjustment and Retraining Notification Act before the state House of Representatives. The bill was referred to the Labor Relations Committee but was not acted upon during this legislative session.
Rhode Island: The Rhode Island Worker Protection and Job Loss Prevention Act, (S2233 & H7462) was introduced before the state General Assembly. The bills have been pending before House and Senate committees, but have not received committee hearings or been scheduled for a vote during the current legislative session.
U.S. Senator Sherrod Brown's proposed legislation has been assigned bill no. S. 1374. The bill has been read twice and referred to the Committee on Health, Education, Labor, and Pensions. The Senate H.E.L.P. Committee is chaired Senator Edward M. Kennedy. Committee members by rank include:
Democrats by Rank: Edward Kennedy (MA), Christopher Dodd (CT), Tom Harkin (IA), Barbara A. Mikulski (MD), Jeff Bingaman (NM), Patty Murray (WA), Jack Reed (RI), Bernard Sanders (I) (VT), Sherrod Brown (OH), Robert P. Casey, Jr. (PA), Kay Hagan (NC) and Jeff Merkley (OR).
Republicans by Rank: Michael B. Enzi (WY), Judd Gregg (NH) ,Lamar Alexander (TN), Richard Burr (NC), Johnny Isakson (GA), John McCain (AZ), Orrin G. Hatch (UT), Lisa Murkowski (AK), Tom Coburn, M.D. (OK) and Pat Roberts (KS).
Please let these Senators and your state's Senators know that you support their efforts to strengthen the WARN Act.
Democrats by Rank: George Miller (CA-07), Dale E. Kildee (MI-05),Donald M. Payne (NJ-10), Robert E. Andrews (NJ-01), Robert C. Scott (VA-03), Lynn C. Woolsey (CA-06), Rubén Hinojosa (TX-15) Carolyn McCarthy (NY-04), John F. Tierney (MA-06), Dennis J. Kucinich (OH-10), David Wu (OR-01), Rush D. Holt (NJ-12), Susan A. Davis (CA-53), Raúl M. Grijalva (AZ-07), Timothy H. Bishop (NY-01), Joe Sestak (PA-07), Dave Loebsack (IA-02), Mazie Hirono (HI-02), Jason Altmire (PA-04), Phil Hare (IL-17), Yvette Clarke (NY-11), Joe Courtney (CT-02), Carol Shea-Porter (NH-01), Marcia Fudge (OH-11), Jared Polis (CO-2), Paul Tonko (NY-21), Pedro Pierluisi (PR), Gregorio Kilili Camacho Sablan (Northern Mariana Islands) and Dina Titus (NV-3).
Republicans by Rank: Howard McKeon (CA-25), Thomas E. Petri (WI-06), Peter Hoekstra (MI-02), Michael N. Castle (DE-At Large), Mark E. Souder (IN-03), Vernon J. Ehlers (MI-03), Judy Biggert (IL-13), Todd Russell Platts (PA-19), Joe Wilson (SC-02), Cathy McMorris Rodgers (WA-05), Tom Price (GA-06), Rob Bishop (UT-01), John Kline (MN-02), Brett Guthrie (KY-2), Bill Cassidy (LA-6), Tom McClintock (CA-4), Duncan D. Hunter (CA-52), Phil Roe (TN-1) and Glenn Thompson (PA-05).
Please let these Representatives and your state's Representatives know that you support these efforts to strengthen the WARN Act.
On June 25, 2009, Senator Sherrod Brown (D-OH) and Representatives George Miller (D-CA), Chairman of the U.S. House Education and Labor Committee, and John McHugh (R-NY) introduced companion bills before the U.S. Senate and U.S. House of Representatives (S.____ and H.R. 3042). The bills would amend the WARN Act to improve advance notice and strengthen enforcement for the protection of workers facing the loss of their jobs as the result of business closings and mass layoffs. Rep. Miller's press release reads:
WASHINGTON, D.C. -- U.S. Sen. Sherrod Brown (D-OH) and Representatives George Miller (D-CA), Chairman of the U.S. House Education and Labor Committee, and John McHugh (R-NY) introduced legislation today that would strengthen the law requiring employers to notify workers and communities of mass layoffs or plant closings. The bipartisan FOREWARN Act, would strengthen enforcement of current law and close loopholes in the Worker Adjustment and Retraining Notification (WARN) Act.
“Workers deserve more than just a pink slip when they lose their job because of our nation’s economic difficulties,” said U.S. Rep. George Miller (D-CA), chairman of the House Education and Labor Committee. “Current protections for workers being laid off are both confusing and rarely enforced. While an early warning may not save their job, a meaningful early notice will help them prepare to find a new job or upgrade their skills for new employment.”
“Across our country, communities and families have been devastated by mass layoffs. We have seen this acutely in Northern and Central New York and know all too well the lasting and fundamental impacts mass layoffs and plant closures have on individuals, families, and communities. In the two decades since the WARN Act was enacted, our nation’s economy has changed markedly,” said U.S. Rep. John McHugh (R-NY). “It is time to modernize the WARN Act to fit today’s economy, and thereby ensure workers and communities get the fair notice they deserve and need to prepare and adjust to their change in job status. Thus, I am pleased to have had the opportunity to work with Chairman Miller and Senator Brown to develop the Forewarn Act.”
“Mass layoffs send shockwaves through individual households and entire communities,” U.S. Sen. Sherrod Brown (D-OH) said. “This bill is about protecting workers and helping communities respond to mass layoffs. The WARN Act was supposed to give employees time to find a new job. Unfortunately, fair notice has become the exception not the rule. This bill will modernize the WARN Act by closing loopholes and strengthening its enforcement. Workers and communities should be armed with best arsenal of protective measures during these challenging economic times.”
Over the past several months, laid-off employees have filed lawsuits over violations of the WARN Act against companies as varied as Lehman Brothers, retailers like Sam’s Club and Goody’s, the electronics chain Tweeter, ABX Air, USA Jet Airlines, and major law firms.
Congress passed the WARN Act in 1988 to give workers and communities 60 days advance notice to adjust to an impending “plant closing” or “mass layoff.” Compelling evidence demonstrated that retraining and other readjustment efforts have the greatest success when advance notice is provided.
The WARN Act’s effectiveness has been undermined by existing loopholes and weak enforcement. First, the WARN Act only covers 24 percents of all layoffs, according to a report by the by the Government Accountability Office (GAO). Of those layoffs, employers only provided notice approximately one-third of the time. The WARN Act has several exceptions that employers can invoke— both legitimately and illegitimately— including unforeseen business circumstances and whether a company is trying to attract capital to avoid a shutdown. Furthermore, the WARN Act is only invoked at companies with at least 100 employees that layoff 33 percent or more of their workforce.
Second, weak penalties and enforcement measures may prevent employers from providing notice. GAO found that employers failed to provide notice to employees in two-thirds of layoffs and closures where the WARN Act applied. The WARN Act requires violating employers to pay an employee a day’s pay for every day of notice not provided and does not provide the federal government the authority to enforce workers’ rights.
The FOREWARN Act would give the U.S. Department of Labor (DOL) the authority to enforce the WARN Act, and would increase penalties for violation to double back pay. In addition, it would reduce the mass layoff figure from 50 to 25, reduce the employer size from 100 to 75 employees, and lower the mass layoff trigger. The lower thresholds would protect employees in both manufacturing and services firms. It would also lengthen the notification period from 60 to 90 days and require employers to provide written notification to the Department of Labor that includes the reason for the plant closing or mass layoff, whether the employer has jobs elsewhere, and a statement of each employee’s right to wages and benefits. The bill would also expand recipients of notification to Secretary of Labor, elected officials including the governor, member(s) of Congress, and state representatives, and the appropriate labor union(s) when applicable.
Representatives Reps. Lynn Woolsey (D-Calif.), Marcy Kaptur (D-OH) and Sens. Richard J. Durbin (D-IL), Russ Feingold (D-WI), Tom Harkin (D-IA), and John F. Kerry (D-MA). have co-sponsored the legislation introduced before their respective chambers.
The text of the proposed bills is not yet available online.
Update:Senator Sherrod Brown (D-OH) and Representatives George Miller (D-CA) and John McHugh (R-NY) introduced the Federal Oversight, Reform, and Enforcement of the WARN (FOREWARN) Act into both the House and Senate. This legislation would strengthen the existing WARN Act in numerous ways. Under FOREWARN, the U.S. Department of Labor (DOL) would also have authority to enforce the law. FOREWARN would lower the mass layoff threshold from 50 employees to 25 and reduce the employer size threshold from 100 employees to 75. It would also lengthen the notification period from 60 to 90 days and require employers to provide written notification to the Department of Labor that includes the reason for the plant closing or mass layoff, whether the employer has jobs available elsewhere, and a statement of each employee’s right to wages and benefits. It would further expand recipients of such notification to the Secretary of Labor, elected officials including the governor, member(s) of Congress, and state representatives, and the appropriate labor union(s) when applicable. FOREWARN's expansions also include an employer posting requirement and provide educational materials to be available to affected employees. Most importantly, FOREWARN would increase penalties for violation of the law to double back pay and it would prevent the waiver of any of these WARN rights outside of a settlement negotiated by the Secretary of Labor, a state attorney general, or a private attorney on behalf of affected employees.
Alert Laid Off Employees in Reasonable Time Act. On April 23, 2009, U.S. Representative Luis Gutierrez introduced House Bill 2077. The bill would require an employer to give 60-day written notice to employees and to appropriate state and local government officials before ordering a mass layoff that results in employment loss for a single employer at more than one site of employment when the layoff affects at least 50 employees representing 33% of the full-time employees or affects 500 or more employees. Violators would be liable to each aggrieved employee for double the back pay. The bill was referred to the House Committee on Education and Labor and in early June was referred to the Subcommittee on Workforce Protections.
Regional Economic Recovery Coordination Act of 2009. On February 25, 2009, Senator Sherrod Brown introduced Senate Bill 480, which would amend the Worker Adjustment and Retraining Notification Act to require employers to notify the Secretaries of Labor and Commerce of a plant closing or layoff and the number of employees affected. The bill has been referred to the Committee on the Environment and Public Works.
On May 20th, the U.S. Senate Health, Education, Labor and Pensions Committee held a hearing on Plant Closings, Workers Rights and The WARN Act's 20th Anniversary. Senator Sherrod Brown (D-OH) chaired the hearing and received testimony from:
John Philo, Esq., Legal Director, Sugar Law Center for Economic & Social Justice, Detroit, MI Richard L. Trumka, Secretary-Treasurer, AFL-CIO, Washington, DC Joe Aguiar, Laid-Off Worker from the Quaker Mill plant, Fall River, MA Stefan Jan Marculewicz, Esq. Principal, Miles & Stockbridge, P.C., Baltimore, MD
The full hearing can be viewed online at the H.E.L.P. Committee's website. If you would like to receive a copy of the Sugar Law Center's written submission to the Committee, contact the Law Center directly at firstname.lastname@example.org. See also the Toledo Blade's coverage of the hearing here and here.
As reported in an earlier prior post, the Early Warning and Health Care for Workers Affected by
Globalization Act (HR 3796) was
introduced by Rep. George Miller and subsequently attached to the Trade and Globalization
Act of 2007 (HR
3920), which passed the House and is now under consideration by the Senate. The Senate is also considering its
own trade bill, the Trade and Globalization Adjustment Assistance Act of 2007 (S 1848). The Senate's version does not presently include WARN Act amendments. Both bills are pending before the Senate Finance Committee and seek to renew Trade Adjustment Assistance (TAA) programs that expired at the end of 2007. Senate Democrats are expected to consider and pass versions of the
pending bills to renew and continue TAA programs on a more stable basis. Although Senate Republicans blocked attempts to extend TAA programs for an additional three months, TAA programs have been funded through an omnibus funding bill for 2008 and should continue.
TAA programs and WARN Act protections for workers are intimately related to the ongoing developments related to liberalized global trade. The U.S. Department of Labor, Bureau of Labor Statistics reports that between 8 and 9 percent of mass layoffs resulted from the relocation of operations and that between 20 and 33 percent of such relocations were to overseas facilities. Such relocations have been greatly facilitated by the government's trade policy. TAA programs and WARN Act protections represent a small but important safety net for affected workers and the Sugar Law Center urges Congress to pass legislation strengthening both.
Please contact your Senators and Senate Finance Committee
members to express support for inclusion of WARN Act amendments with any trade
legislation passed by the Senate . (Contact
information for U.S.Senators can be found here
and contact information for Finance Committee members can be found here).
The Early Warning and Health Care for Workers Affected by Globalization Act (HR 3796) was introduced by Rep. George Miller, D-Calif in the United States House of Representatives on October 10, 2007. The bill was considered by the Committee on Education and Labor and recommended to the entire House. The bill was then attached to the Trade and Globalization Act of 2007 (HR 3920) and passed the House by a vote of 264 in favor, 157 against, and 11 member not present/abstaining.
Along with the House version, the Senate is considering its own trade bill, the Trade and Globalization Adjustment Assistance Act of 2007 (S 1848). The Senate's bill does not presently include the WARN Act amendments that were passed by the House. The bills are pending before the Senate Finance Committee. The Committee is chaired by Sen. Max Baucus, D-MT. The Sugar Law Center supports HR 3920 asks all interested persons to contact their Senators and Senate Finance Committee members to express support for inclusion of WARN Act amendments with any trade legislation passed by the Senate. (Contact information for U.S.Senators can be found here and contact information for Finance Committee members can be found here).
WARN Act amendments passed by the House in the Trade and Globalization Act of 2007 (HR 3920) include:
For mass layoffs, repealing the requirement that one-third of the active workforce be laid off before triggering notice requirements;
Increasing the notice requirement from 60 days to 90 days;
Increasing allowable damages from a single day’s pay to twice the amount of daily pay for each day that an employer is found in violation of the Act and providing for interest to added to worker’s awards;
Stating that damages are calculated on a ‘calendar day’ basis;
Providing a uniform statute of limitations period of two years;
Providing for an administrative complaint procedure through the U.S. Department of Labor;
Providing penalties of $500 for each offense when an employer is found to have willfully violated the Act;
Limiting the circumstances under which a worker will be found to have waived or released their right to bring claims under the Act; and
Requiring employers to post notice of workers rights and remedies under the Act.
On July 16, 2007, Sen. Sherrod Brown, D-Ohio introduced the FOREWARN Act of 2007 (S 1792) into the United States Senate. The bill was referred to and is presently under consideration by the Senate Health, Education, Labor, and Pensions Committee. Sen. Brown's office was the first to introduce WARN Act amendments before the 110th Congress and has been active in seeking passage of such amendments. The Sugar Law Center supports S. 1792 and asks all interested persons to contact their Senators to express support for the legislation. S. 1792 includes the following provisions to strengthen the WARN Act:
Lowers the threshold from employers covered by the Act from those employing 100 or more workers to those employing 50 or more workers;
For plant closings, lowers the threshold for when notice is required from layoffs of 50 affected workers to 25 affected workers;
For mass layoffs, lowers the threshold from 500 workers to 100;
Increases the notice requirement from 60 days to 90 days;
States that all references to ‘days’ in the Act refer to calendar days;
Increases allowable damages from a single day’s pay to twice the amount of daily pay for each day that an employer is found in violation of the Act;
Allows the U.S. Department of Labor and, under certain circumstances, state attorneys general to bring suit on behalf of affected workers;
Requires employers to provide written notification of major layoffs and plant closings to the U.S. Secretary of Labor; and
Increases the scope of and access to educational materials for employers and workers regarding the WARN Act.
On September 25, 2007, Rep. Rick McHugh, R-N.Y. introduced the FOREWARN Act of 2007 (HR 3662) into the United States House of Representatives. The bill was referred to the House Education and Labor Committee and to the Committee's Subcommittee on Workforce Protection. The bill is under consideration by the body. The Sugar Law Center supports Rep. HR 3662; however passage of HR 3920 has made further action on this bill unlikely at this time. In addition to provisions substantially similar to Sen. Sherrod Brown's bill, HR 3662 includes the following changes to the Act:
Require employers to provide written notification of major layoffs and plant closings to the U.S. Secretary of Labor, federal and state Senators and Representatives, Governor of the State, and Mayor of the city in which the affected facilities are located; and
Increases, from 90 days to 180, the time period for aggregating multiple small layoffs, which individually would not otherwise trigger the Act’s protections.
California This site has listings of committee members and contact information for state Senators and Representatives.
California Assembly Bill, AB 1543 Bill would require the Employment Development Department, upon receipt of the written notice of mass layoff or closing, to forward a copy of the notice to the Governor’s Office of Business and Economic Development and to post the notice on state website.
Minnesota This site has listings of committee members and contact information for state Senators and Representatives.
New Jersey Assembly Bill, A2278 Bill would require the Council on Affordable Housing to adjust a municipality's fair share obligation to reflect any permanent job loss within a municipality upon petition of the municipality. Related bill at A1264.
New Jersey This site has listings of committee members and contact information for state Senators and Representatives.
Vermont This site has listings of committee members and contact information for state Senators and House Representatives.
Wisconsin Assembly Bill, AB 375 Bill authorizes state economic development corporation to designate as a development opportunity zone an area in a county that experiences a mass layoff or business closing.
Wisconsin This site has listings of committee members and contact information for state Senators and Assembly members.
Wisconsin Senate Bill, SB 293 Bill authorizes state economic development corporation to designate as a development opportunity zone an area in a county that experiences a mass layoff or business closing.