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.
In March, the Vermont House of Representatives passed a bill (H. 758) that would require employers of 50 or more persons to provide forty-five days advance notice of mass layoffs and worksite closings. The bill is now before the Senate and is pending a third reading and possible amendment. Although the original billed would have provided greater notice (90 days) to more workers (employers of 20 or more persons), the pending bill represents positive action to mitigate the often devastating impact of mass layoffs and closings both to the local communities and afffected workers.
Additional information can be found at VTDIGGER.ORG here.
Innovative legislation has been introduced in the North Carolina General Assembly that would establish a Workforce Displacement Benefit Program to "provide uniform payments to workers who are displaced as a result of a mass layoff that is identified by the Governor as a major distress event." The primary sponsor of the House bill (No. 528) is Rep. Pierce. The bill was introduced on April 2, 2013 and was referred to the Committee on Appropriations. In the Senate, the primary sponsor is Sen Clark. The Senate bill (No. 579) was filed on April 1, 2013 and has been referred to the Committee on Rules and Operations.
For the fourth consecutive year, Rhode Island legislators have introduced before the General Assembly bills to adopt a state WARN Act. House bill 5508 and Senate bills 0230 and 0367 would establish the Rhode Island Worker Protection and Job Loss Notification Act. The bills were introduced in February and are pending before the House Labor Committee and Senate Labor Committee respectively.
Representatives Slater, Silva, Williams, and Diaz introduced the House bill and Senators Crowley, Pichardo, Goldin, Sosnowski, and Conley introduced the Senate versions. Kudos to each.
Minnesota legislators Rep. Ryan Winkler and Rep. Mike Sundin introduced a bill, HF 1266, on March 5, 2013. The bill would require employers to give at least 30 days notice before undertaking a worksite closing or mass layoff affecting 25 or more employees. The law would apply to any employer of 25 or more employees. By lowering the triggering thresholds, the bill seeks to expand worker protections by covering more employers and more displaced workers. As a trade-off for expanded coverage, the notice period is shorter than that found under federal law.
Earlier this year, Minnesota legislators introduced a bills (H.F. No. 2284 & H.F. No. 2446) that would allow the Commissioner of the Department of Labor and Industry to issue an order requiring an employer to comply with the state's Early Warning System law. The Early Warning System statute presently "encourages", but does not require, employers to provide advance notice of plant closings, substantial layoffs, or relocation of operations. The bills would permit the Commissioner to enforce the law and also permit affected workers to obtain relief, including treble damages, for violations of the Commissioner's order. The proposed laws are pending before the House Jobs and Economic Development Finance Committee.
For the third consecutive year, a state WARN Act has been introduced before the Rhode Island legislature. House bill 7565 and Senate bill 2378 would establish the Rhode Island Worker Protection and Job Loss Notification Act.
The House and Senate bills contain several important innovations. The bills would apply to employers of 75 or more workers. Notice requirements would be triggered by a transfer of operations resulting in the termination of employment for 25 or more workers and also be triggered by mass layoffs of 50 or more workers or mass layoffs of 25 or more workers representing 1/3 of the employees at the establishment.
The Senate passed the bill in June, however the House continues to consider the bill in committee.
The New Jersey legislators remain at the forefront of forward-thinking elected officials seeking to protect workers and communities from the devastating effects of sudden job loss. Again this year, New Jersey legislators introduced innovative legislation that would: 1) provide access to certain job training courses for employees affected by plant closings, mass layoffs, or transfer of operations (A 1799 and S 397); 2) allow persons affected by certain plant closings, transfers and mass layoffs to receive temporary suspension of payment of interest on mortgage loans (A 1802 and S 916); and provide for expedited injunction for violations of law requiring prenotification of certain plant closings, transfers and mass layoffs (A 1807 and S 398).
Each of the bills remain pending before the committees of the state Assembly and Senate.
Legislative Bill 472, which would have adopted the Nebraska Workers Adjustment and Retraining Notification Act, was indefinitely postponed at the end of the state's legislative session earlier this year. For further consideration, the bill will need to be reintroduced during the the next legislative session, scheduled to begin January 9, 2013.
Earlier this year, a new Hawaiian law took effect which provides penalties for employers who fail to act in accordance with the state WARN Act. An employer in a covered establishment who violates the Act will be held liable to each affected employee for back pay and benefits for the period of violation, not to exceed sixty days. Employer liability may be reduced by any wages paid during the notice period and voluntary and unconditional payment not required by a legal obligation. The law further empowers the state department of labor to conduct investigations and enfore the state WARN statute.
In January of 2011, Nebraska state senator Russ Karpisek introduced the Nebraska Workers Adjustment and Retraining Notification Act (LB 472). The bill seeks to provide more worksite and worker coverage, more efficient administrative response and enforcement, and more meaningful advance notice to employees. After introduction, the bill was referred to the Business and Labor Committee where it remains pending.
The bill would require employers to provide 60 days advance written notice of a mass layoff, worksite closing, or a transfer of operations which would result in the loss of 25 jobs or more. Notice must be given to each affected employee, each representative of the affected employees, the Commissioner of Labor, the local workforce investment boards and the mayor of the city or village within which the event will occur or, if not within a city or village, the county board. The notice period is increased to 120 days for an event which would result in job losses for 250 employees or more. The bill further allows for the aggregation of individual employment losses if the losses occur at a single site for two or more groups of employees and if any of the individual employment losses involve fewer affected employees than are necessary to require notice under the act.
Enforcement provisions would attach liability to violating employers for each affected employee. The penalties include double back pay for each calendar day of the violation, the value of benefits from the employer’s employee benefit plan through the entire 60 day notice period, as well as liability for other economic and exemplary damages shown by the employee through a preponderance of evidence to have been caused by the employer’s violation of the Act.
Cornhuskers may wish to contact Sen. Karpisek to thank him for his efforts on this bill and may wish to reach out to the Business and Labor Committee to voice support for this legislation.
In what is an all-too-familiar tactic of the national office of the U.S. Chamber of Commerce, the organization has issued a "study" falsely claiming that legislation existing in particular states has a crippling impact on economic growth and job creation within that state. The new piece is titled "The Impact of State Employment Policies on Job Growth: A 50 State Review" and claims to rank states based on a "Employment Regulation Index". The index is compiled through negative scoring based on the existence of fair employment practices laws within a state. Additionally, if the laws have meaningful enforcement procedures to deter illegal conduct, this can lead to further negative scoring.
One factor used to determine the ERI is the presence of state WARN Act statutes. The presence of these mini-WARN Acts is cited as a "key aspect" of state employment polices that harm economic growth. Beyond the false premise of the report, the data surveyed is inaccurate and, at times, blatantly false. Particularly, the report includes the following states as having "WARN-type" requirements that exceed federal law: Connecticut, Michigan, Ohio, and Pennsylvania. If it were true, this would be news to workers in each of these states, but it is not.
Michigan and Ohio have no WARN-type requirements and Connecticut and Pennsylvania's statutes do not require advance notice to workers when job losss occurs as the result of a a plant closing or mass layoff. In 2005, the Connecticut state legislature introduced WARN-type legislation, but the bill did not pass before the end of the legislative session. The state has a law that requires the continuance of group health insurance for 120 days following a plant closing, but this cannot fairly be claimed as WARN-type legislation. Michigan has a non-binding statute that asks employers to provide notice of job loss, but compliance is voluntary and the statute has no enforcement provisions. The Ohio legislature introduced a mini-WARN Act last year, but it did not pass. The state only has a law that requires an employer undertaking a large-scale layoff to notify the state unemployment insurance director three days prior, so that the agency can prepare for processing of a large number of anticipated claims. Pennsylvania also does not require advance notice of plant closings or mass layoffs beyond what is required by the federal WARN Act. The state legislature has considered mini-WARN Act legislation during several sessions, but no law has yet passed. The state does require limited notice to state regulators when a takeover bid is underway and, during "control share acquisitions", requires modest severance to long-term employees. These laws are of very limited application and neither can fairly be considered WARN-type legislation requiring advance notice to workers of impending layoffs.
These errors were found on a quick review of WARN-type legislation. One is left to wonder what additional errors would be found regarding the Chamber's claims concerning wage theft legislation, anti-discrimination laws, and other statutes that protect workers and ethical employers from the predatory practices of less humane and corrupt enterprises. The Chamber's reports appear to have been drafted to protect the latter as the expense of the former.
Too often however, the Chamber's reports contain similar embedded errors. An example is the Chamber's annnual Litigation Climate "study". States that allow severely injured persons access to the courts to recover tort damages to pay for necessary medical care, lost wages, and other losses are considered to hinder economic growth. Notably, in past years, the report has awarded varying scores regarding Michigan's punitive damages laws. However, Michigan law does not permit recovery of punitive damages in tort cases. While the Chamber's studies have been debunked by academics and pollsters, they continue to be cited by journalists and politicians who fail to check the facts underlying the opinions presented. And that may be the purpose of these "studies" after all - to shape public perception regardless of the facts. As a consequence, they should be seen for what they are - propoganda pieces to create false impressions to undermine the laws that provide economic stability and a level playing field for all.
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.
Earlier this year, a bill, Senate File No. 3198, was introduced before the Minnesota Senate with provisions that would require employers to provide advance notice to workers facing a mass layoff or worksite closing. The bill is sponsored by Senator David Tomassoni and has been referred to the Senate Business, Industry and Jobs Committee.
The bill's requirements are substantively similar to those found in an earlier companion House bill, House File No. 1963. Most notably, the legislation would permit state officials to enforce advance notice regulations that are currently voluntary. See our June 26, 2009 blog entry for a further discussion of requirements that are now found in both the House and Senate bills.
A couple of developments passed under the radar during the past year. Indiana legislation amended state unemployment insurance laws and Hawaii's legislature is considering a bill, both of which potentially implicate displaced workers rights.
In Indiana, amendments to the unemployment insurance statute at IC-22-4-32-23 include provisions that require notice to the state when a company is considering dissolution, liquidation, or withdrawal of business entities from Indiana. Within 30 days of adopting a plan to take such actions, a company must file written notification with the Department of Workforce Development. The notification must indentify: (1) the corporation’s assets, (2) the corporation’s liabilities, (3) the details of the plan or resolution, (4) the names of the corporate officers, directors, shareholders or owners, trustees, and/or members, and (5) a copy of the minutes of the meeting at which the plan as adopted. For one year following the dissolution, liquidation, or withdrawal, corporate officers and directors remain personally liable for any acts or omissions that result in the distribution of corporate assets in violation of the interests of the state, unless within 30 days after providing notification, the company follows departmental procedures to seek clearance from liability. The amendments passed the state legislature and were signed into law by the governor.
The Hawaii House of Representatives and Senate are considering bills, HB396 HD2 and SB688 HD2 respectively, that would provide job security to employees. In the event of a company's divestiture, corporate successors facility would be required to hire incumbent nonsupervisory and non-confidential employees without requiring them to apply for employment. The successor would be permitted to pre-screen incumbent employees, conduct criminal history checks, and drug screening. Successor companies engaged in a substantially dissimilar business would be exempt from the bill's requirements, as would successors with substantially reduced staffing needs. The House and Senate bills would apply to employers of 100 or more workers. Employers who violate the act would be required to compensate illegally dislocated workers for the difference between the employee’s prior salary and the amount of their unemployment insurance payments throughout the time period that the individual is covered under the state's unemployment insurance program. Under the Senate bill, successor employers would receive a one-year exemption from the state's general excise tax.
The bills were introduced during the 2009 legislative session and have been carried over to the 2010 session. SB 688 is sponsored by Senators Takmine, Chun, Oakland, Bunda, Gabbard, Kindani, and Tsutsui. The bill was passed by the state senate and then transmitted to the state House of Representatives. HB396 is sponsored by Rep. Roy Takumi and was recommended for passage by the House Labor and Economic Revitalization, Business & Military Affairs Committees before being referred to the House Finance Committee where it remains pending.
Residents of Hawaii may wish to contact their state senators and representatives to express support for this legislation.
Earlier this year, a bill to require advance notification to workers and communities facing sudden job loss was placed before the Pennsylvania House of Representatives. The bill would provide expanded protections beyond that required by existing federal law.
House Bill 2390, the Pennsylvania Worker Adjustment and Retraining Notification Act, was introduced by Representatives White, Belfanti, Bradford, Brennan, Daley, DePasquale, Freeman, Gibbons, Hornaman, Josephs, Kula, Murt, M. O'Brien, Quinn, Santoni, Siproth, K. Smith and Thomas. The bill was referred to the House Labor Relations Committee, where it remains pending.
The bill would require employers of fifty or more workers to provide ninety days advance notice to employees who lose their jobs as a result of a business closing or mass layoffs. Business closings would be defined as the termination of operations at a single site of employment resulting in job loss to twenty-five or more workers. A mass layoff would occur when, at a single site, twenty-five or more workers comprising one-third of the workforce suffer a loss of employment or when 250 or more workers were laid off at a single site. The proposed law would empower the state secretary of labor to accept complaints and investigate employer violations.
Concerned Pennsylvanians are asked to contact the chair of the House Labor Relations Committee and their state representatives to register their support of the pending legislation.
On July 1, 2010, the Iowa Worker Adjustment and Retraining Notification Act came into effect providing additional protections for workers facing layoffs. The law represents a well-deserved victory for advocates who have proposed such legislation during a number of legislative sessions over the past fifteen years. The present law was passed by the state House of Representatives on January 27 and the Iowa Senate on March 10 and then signed into law by Governor Chet Culver on March 22, 2010. By its terms, the law was to take effect on July 1.
Iowa's law expands protections to workers beyond those provided by the federal WARN Act. The statute requires employers of twenty-five or more workers to give thirty days advance notice to employees when undertaking a worksite closing or mass layoff affecting twenty-five or more workers. The law also contains a ninety day aggregation period similar to federal law. Notice must also be provided to union representatives and the Iowa Department of Workforce Development.
The Iowa WARN Act is enforced by the state's Department of Workforce Development.
Last spring, Representative Ryan Winkler introduced legislation (H.F. No. 1963) to provide enforcement provisions to the advance notice requirements of an existing statute, which presently has none. This month, Representative Denise Dittrich joined as a co-author to the bill. Representative John Ward had previously joined as a co-author. The bill was recommended for passage by the Civil Justice Committee in 2009, however due to an odd-year adjournment, the bill was returned to that Committee where it remains pending.
The bills' requirements are substantially similar to legislation introduced before the House during the last legislative session and in the wake of the Colibri jewelry factory closing in East Providence last year. For more information see our entry of April 26, 2009 and Rep. DaSilva's press release on the issue.
Ocean Staters are asked to contact their state senators and representatives to register their support of the pending legislation.
On February 2, 2010, Ohio Representative Kenny Yuko introduced a well-crafted bill (H.B. 434) that would require employers to provide their employees with advance notice of mass layoffs, worksite closings, and transfers of operation. The legislation is co-sponsored by Representatives Robert Hagan, Mike Foley, Tom Letson, Clayton Luckie, Debbie Phillips, Marian Harris and John Domenick. The bill imposes few, if any, expenses and no new taxes on Ohio businesses, while providing meaningful accountability for companies that violate the notification rights of workers and local communities who suffer the direct impact of sudden job loss.
Ohio's bill would apply to employers of fifty or more workers and require ninety days advance notice of worksite closings, mass layoffs (including layoffs lasting longer than four months) and transfers of operations that affect twenty-five or more workers at a single site. For closings, layoffs, and transfers that affect two hundred and fifty or more workers, advance notice must be given one hundred and twenty days before the job action. The bill further provides that notice should be given to the affected employees, their representatives, the department of job and family services, local workforce policy boards and local elected officials and also allows rapid response team members on-site access to provide critical information to displaced workers. The law would permit state officials to bring enforcement actions against violating companies and also allow enforcement by affected employees through a complaint procedure with the state's department of job and family services and/or a civil action.
The bill has been assigned for review by the House Commerce & Labor Committee.
All you Buckeyes out there are encouraged to contact Rep. Yuko and the bill's co-sponsors to thank them for their leadership on this issue and to contact your state representatives and House Commerce & Labor Committee members to have your voice heard in support of this legislation.
Earlier this month, New Jersey legislators in the state Assembly and the Senate re-introduced innovative bills that would allow:
Qualified individuals who have been affected by business closings and mass layoffs to receive a temporary suspension of interest payments interest on mortgage loans.(Introduced as Assembly Bill No.1939and Senate Bill No.992);
State officials to seek immediate injunctive relief when advance notice is not provided. (Introduced as Assembly Bill No. 1985and Senate Bill No. 977); and
Laid off workers to receive free tuition at New Jersey state colleges for job training courses when the course has room for additional students and no other financial aid is available to the worker. (Introduced as Assembly Bill No. 1923and Senate Bill No.976).
By a vote of 81-18, the Iowa House of Representatives passed a bill requiring employers to provide advance notice of business closings and mass layoffs to affected workers and local communities.The bill was proposed by the Iowa Department of Workforce Development and introduced before the House in March 2009.The House Labor Committee was assigned to review the bill and issued its report recommending passage on January 22, 2010.The bill passed on a vote of the full house on January 27, 2010 and was then messaged to the state Senate.The proposed legislation (SSB 1055) has now been referred to the Senate Labor and Business Relations Committee and assigned to a subcommittee composed of Senators William Dotzler, Dick Dearden and Pat Ward.A description of the bill's provisions can be found at ourJune 26, 2009 entry.
If you are in the Hawkeye state, please contact members of the Labor and Business Relations Committee and your state senator to urge passage of this important legislation. Members of the Committee can be found hereand your state senator can be located here.
Over the past several weeks, New Mexico state officials sought legislation to reduce the time that dislocated workers spend on unemployment and to provide stability to local communities by requiring the state's largest employers to provide advance notice of worksite closings and mass layoffs.
With the support of New Mexico Governor Bill Richardson's office, House Bill No. 180 was introduced by state Representative Mimi Stewart on January 26, 2010. The bill would require large employers to provide 60 days notice of worksite closings and mass layoffs affecting 25 or more workers. The proposed law would also permit the state attorney general to bring suit on behalf of workers and/or communities against companies that fail to provide the required notice and would require the company to repay tax breaks and loans that it received from a state or local government as an incentive to continue operations at the facility. The bill capped allowable damages at double back pay to the workers for each of the 60 days that the employer is found in violation and provided modest civil penalties for violation of the Act. The bill did not enact any new taxes or exact new costs to employers.
On February 11, the House Judiciary Committee reported out an amended draft of the bill that passed the full House by a vote of 41-27. The bill then moved to the Senate for its consideration and was referred to the Senate Corporations and Transportation Committee. After significant lobbying, including reports of corporate lobbyists lining the back wall of the room while deliberating Committee members dined on barbecue provided by the lobbyists, the Senate Corporations Committee voted to table the bill. As a result the bill is unlikely to receive further consideration during this legislative session.
If passed in this or future sessions, the legislation would represent a significant move to divorce the state from the historical exploitation of employees that is found in too many locales of neighboring states and other regions of the country.
Residents of the Land of Enchantment are asked to contact Governor Bill Richardson's office and the office of Representative Mimi Stewart to express your appreciation for their efforts in support of this legislation and we at the Sugar Law Center will be honing our barbecuing skills in the months ahead.
On January 1, 2010, New Hampshire’s state WARN Act went into effect. The law requires employers to provide advance notice to employees before mass layoffs or plant closings. The law applies to more employers and protects more workers than existing federal legislation by lowering numerical thresholds for determining when notice is required. The law also contains innovative provisions that empower the state labor commissioner to determine liabilities for violations and that provide a lien upon business revenues and company property for sums owed under the Act.
Following termination of operations at its printing facility, Insync Marketing Solutions, LLC (Insync) laid off approximately 230 workers and filed for Chapter 7 bankruptcy protection. Insync also filed a letter with the California Labor Commissioner and the Department of Industrial Relations seeking a ruling on the company’s liability under the California WARN Act. Insync argued that although 60 day advance notice of the layoffs was not provided to workers, the company met the faltering company exception in section 1402.5 of the state law. The faltering company exception has three required elements under 1402.5(a).
The California Labor Commissioner reviewed the case and its findings were adopted by the Department of Industrial Relations director.The Commissioner found that Insync did not meet the first element of the faltering business exception.The first element requires that the employer be “actively seeking capital or business” to continue operations.Although Insync was seeking a buyer before the employee terminations, the company did not provide sufficient evidence that it was taking action to secure the investment of new capital. The Commissioner cited federal regulation 20 C.F.R. § 639.9 as well as three federal cases for the proposition that seeking the sale of a company alone is not enough to qualify for the faltering business exception. A company must provide evidence that the company was also seeking additional capital or business.
Finally, the Commissioner found that even if Insync was able to meet the first requirement, Insync would still not meet the third element of the faltering business exception. The third element requires “[t]he employer reasonably and in good faith believed that giving the notice … would have precluded the employer from obtaining the needed capital or business”. Insync did not provide objective evidence of a good faith belief.
Since early this year, the Wisconsin State Assembly and State Senate have been considering companion bills to provide modest amendments to the state WARN Act. On November 3, 2009, Bill 266 passed the Assembly and was messaged to the Senate. The Senate concurred on November 5. The Governor approved the bill and it became law on December 1. The amendments allow local workforce development boards to provide additional resources to workers facing potential worksite closings and mass layoffs. (Note: as a result of the Assembly's passage of its bill, the Senate's companion bill, SB 183, was laid on the table).
Governor John Lynch signed the New Hampshire Workers Adjustment and Retraining Notification Act into law today. The Governor's press release on the signing states that "new law sends a strong message to New Hampshire workers that we care
about their hard work, and we care about them and their families." The law will take effect January 1, 2010 and provides a number of protections beyond those found in federal legislation. For further information on the law, see our June 26,2009 entry.
The Act would apply to any employer of 75 or more full-time
workers in the state and requires employers to provide 60 days
advance notice of a plant closing or mass layoffs. Plant closings are
defined as a shutdown of operations affecting 50 or more full-time
employees. Mass layoffs are defined as an employment loss at a single
site of employment that affects 250 or more full-time workers or that affects
at least 25 full-time employees if they constitute 33 percent of the full-time
employees of the employer. The Act empowers the state commissioner
of labor to determine liabilities and civil penalties for violations of the
Act and permits employees to bring suit in court. The Act also permits the state department of labor to take
a lien against the business revenues and property of violating employers and provides that the state attorney general may petition the
court for an order of restitution to injured persons whenever the state
attorney general has reason to believe that an employer is violating or is
about to violate the statute.
The Minnesota State Legislature has taken up legislation to empower to the state labor commissioner to enforce the advance notice requirements of an existing statute (Chpt. 116L, § 116L.976). Currently the state has a well-intentioned but highly ineffective statute that asks businesses to voluntarily comply with advance notice to workers facing a worksite closing or mass layoff. As a result, the state statute is rarely observed in practice. (Michigan has a similar statute). While voluntary statutes can inform good faith employers who need guidance, these statutes too frequently provide bad faith actors with short term marketplace advantages over companies who observe the fundamental rights of their employees and the communities in which they are located.
Minnesota House File No. 1963 would empower the state commissioner to enforce the advance notice requirements of § 116L.976. by permitting the commissioner to issue orders requiring an employer to comply with advance notice requirements. The department is required to serve the order upon the employer or the employer's authorized representative. An employer who wishes to contest the order must file written notice of objection within 15 calendar days after being served. The commissioner may also bring an action in the district court to enforce or require compliance The commissioner can also order violating employers to pay back pay to aggrieved parties and treble damages. Any employer who is found by the commissioner to have repeatedly or willfully violated the Act shall be subject to a civil penalty of $1,000 for each violation for each employee. In addition, the commissioner may order the employer to reimburse the department and the attorney general for all appropriate litigation and hearing costs expended in preparation for and in conducting the contested case proceeding. An employee may also bring a civil action seeking redress for a violation or violations of section 116L.976 in district court. An employer who violates the requirements is liable to the employee for the full amount of the wages, gratuities, and overtime compensation and for an additional equal amount as liquidated damages. In addition, in an action under this subdivision the employee may also seek treble damages and other appropriate relief provided by law.
Due to legislative rules of odd-year adjournments, the bill has been returned to the House Civil Justice Committee where it remains pending.
The midwest "I" states have been moving towards enactment of state advance notice legislation. Illinois passed state legislation in 2005. Indiana has introduced such legislation during the past three legislative sessions and Iowa has introduced bills during the last two sessions.
In February, Representative Dennis Tyler authored and along with Representatives Terri Austin, John Bartlett and David Niezgodski introduced House Bill 1166 before the Indiana House of Representatives. The bill would require advance notice of business closures or mass layoffs. The bill applies to any employers of between 50 and 100 employees in the state and the definition of employers includes a company or an officer of a company. Employers are required to provide 60 days written notice of plant closings and mass layoffs. Plant closings are defined as the permanent or temporary shutdown of a single site of employment resulting in an employment loss to at least 20 employees. Mass layoffs are defined as a reduction of force resulting in an employment loss at a single site of employment to at least 20 employees. If an employer violates the bill's requirements, an aggrieved employee would be permitted to commence an action in court. Employers that violate notice requirements to municipalities can be found to have committed a Class C infraction for each day that the violation occurs. The bill is pending before the House Committee on Pensions and Labor.
In Iowa, Senate Study Bill 1055 and House Study Bill 62 have been submitted to both chambers of the state's General Assembly. The Senate Study Bill has been assigned to the Labor and Business Relations Committee and remains pending before a subcommittee of that body. The House Study bill has been now be introduced before the House of Representatives as House File 681 and has been referred to the House Labor Committee. The bills and file would require employers to provide advance notice of business closings and mass layoffs. Employers who employ 25 or more full-time workers would be covered. Business closings are defined as the permanent or temporary shutdown of a single site of employment resulting in employment loss for 25 or more workers. A mass layoff is defined as a reduction in force of 25 or more employees. Employers would be required to provide 30 days notice of business closings and mass layoffs. The state department of labor would be empowered to conduct investigations and determine violations of the Act. Violators would be liable for civil penalties of not more than $100 for each day of violation.
The Wisconsin Legislature is considering two bills that would amend the state's existing statute that requires advance notice to workers before business shutdowns and mass layoffs. Assembly Bill 266 and Senate Bill 183 would strengthen procedures for providing information to workers and services from the state's rapid response team. The bills would also create civil penalties for violations of the state's advance notification law. The Assembly's bill is presently before the Committee on Workforce Development and the Senate bil is before the Committee on Labor, Elections and Urban Affairs.
We missed this one earlier this year. In Mississippi, House Bill No. 682 was introduced to require advance notice to workers faced with a business closing or mass layoff. The bill was authored by Rep. William J. McCoy. The bill's provisions were substantially similar to the requirements of the federal WARN Act.The bill however would have allowed the state Attorney General to bring suit on behalf of aggrieved employees and municipalities. Unfortunately, the calendar deadline expired without passage, but hopefully will be reintroduced and acted upon in the next legislation.
Rep. McCoy and the co-authors (Rep. Bill Moak, Rep.George Flaggs, Jr. and Rep. Frances Fredericks) of the bill should know that their efforts to protect the fundamental rights of our nation's workers and their families and communities are much appreciated.
In the North Carolina General Assembly, Representatives Rick Glazier, Marvin Lucas, Deborah Ross, and Bill Faison introduced House Bill 1169 earlier this year. The bill was filed, passed a first reading and was referred to the House Committee on Commerce, Small Business and Enterpreneurship. The bill remains in committee.
The bill would require an employer to provide written notice at least 90 calendar days in advance of a plant closing or a mass layoff. Plant closings and mass layoffs are defined similarly to the federal statute. A WARN-NC notice is required when an employer is laying off at least 50 people in a single site of employment or employs 100 or more workers. Any employer who violates the act is liable to each affected employee for an amount equal to back pay and benefits for the period of the violation, up to 90 days. The Commissioner is empowered to enforce the act. The Attorney General shall represent the Department of Labor or designate some member of his or her staff to represent them in all actions or proceedings in connection with the Act. Within 90 days of an employer's failure to provide an affected employee with the WARN-NC notice required by this Article, the affected employee may bring a civil action in court against the employer to obtain monetary damages.
California's bill to amend the state's advance notification statute passed the Assembly Committee on Labor and Employment and was then referred to the Committee on Appropriations where the bil has received two hearings and remains pending. However certain deadlines for fiscal approval have passed and it is uncertain whether further action on the bill will occur this year. After its introduction, the bill was targeted by chamber of commerce organizations who have far too-frequently opposed sustainable and ethical business practices Our friends in the business community are encouraged to contact their local chambers of commerce and support policies, leadership and business organizations who advance ethical and sustainable business practices.
On February 26,2009, California Assembly Member Sandré Swanson introduced legislation to amend the advance notification provisions of the state Labor Code. Most notably, Assembly Bill 842 seeks to amend the Code to require that:
Employers provide 90 days advance notice of a plant closing or mass layoff. State law presently requires 60 days advance notice;
The California Labor and Workforce Development Agency (LWDA) maintain a guide of benefits and services available to dislocated workers and maintain a guide of economic development benefits and services for employers to avert plant closings and mass layoffs;
The LWDA transmit the guides an employer upon their filing notice of a plant closing or mass layoff and that employers provide such information to their employees; and
An employer who seeks to be exempt from notice under the "actively seeking capital exception" engage in consultation with specified public agencies while seeking capital.
On April 22, 2009, the bill passed out of the Assembly Committee on Labor and Employment and has now been referred to the Committee on Appropriations.
April 8, 2009, New Hampshire's bill (SB 40) to require advance notice of worksite
closings and mass layoffs passed the state Senate. The bill was
introduced before the state House of Representatives on the following day and
is now pending before the House Labor, Industrial, and Rehabilitative Services
Committee. A public hearing is scheduled on the bill on April 28, 2009 at 10:00 am. The bill is due out of Committee on May 28, 2009.
In the wake of the Colibri Group's closing of a Rhode Island jewelry factory without advance notice to workers, Representative Roberto DaSilva has introduced legislation before the state House of Representatives to require advance notice of worksite closings and mass layoffs. The Rhode Island Worker Protection and Job Loss Notification Act (House Bill 5673) would apply to employers with 75 or more workers and to employer's facilities that have been in existence for over three years or have employed 75 or more workers at the site over the prior twelve months.
Under the bill, employers would be required to provide 60 days advance notice of worksite closings, mass layoffs, and transfers of operations when 25 or more employees lose their job as a result of the action. Employers who provide less than the required notice would be required to pay severance pay of one week's pay for each year of the affected employee's service with the company. The bill also establishes the agencies and persons to whom notice must be provided, the contents of the notice, and establishes a state rapid response team with proscribed duties.
The bill was introduced on February 25, 2009 and remains pending before the House Labor Committee. For more information on the termination of Colibri's workforce without advance notice, please see various articles at the Rhode Island's Future website.
A bill that would require advance notification to workers and communities has been introduced before the New Hampshire Senate. The bill would strengthen federal protections under the Workers Adjustment and Retraining Notification Act. The bill would principally supplement federal law by:
Expanding the definition of covered employers to include businesses employing 75 or more full-time workers;
Requiring advance notice to workers whenever between 25 and 249 workers who comprise one-third of the facility's workforce are laid off and requiring advance notice to all affected workers whenever 250 or more are laid off at a single facility;
Granting the state commissioner of labor power to investigate and determine liabilities for violations; and
Granting the state attorney general power to bring an action to seek an injunction when violations are occurring.
The bill was introduced in January and referred to the Commerce, Labor, and Consumer Protection Committee. The bill remains pending before that committee. (See docket here).
The New York State Workers Adjustment and Retraining Notification Act, N.Y. Lab. L.,Art. 25-A, Sec. 860 a-i., became effective on February 1, 2009. The state law improves upon the federal legislation by providing for a longer notice period and providing coverage for more worksites and employees. (See August 8, 2008 entry for a summary of the Act's requirements). Following its taking effect, the New York Department of Labor filed Emergency/Proposed Rules for the interpretation and implementation of the Act. Among other requirements, the rules include provisions that:
Require all references to 'days' in the Act to be interpreted as calendar days;
Establish factors to be considered in determining when a parent corporation might be considered an employer under the Act;
Find employees last date of employment is not extended by the payment of severance, vacation pay, or similar benefits; and
Further clarify the contents of the employer's notice.
A summary and the substance of the rules are available at the New York State Department of Labor's website.
As noted in an earlier post, legislation to require advance notification to workers faced with job loss resulting from a mass layoff or plant closing was introduced in the New York State Assembly (A.10847) and Senate (S.08212). On June 17, the Senate bill passed that body, was delivered to the Assembly, and was subsequently substituted for A.10847 in the Assembly. The bill passed the Assembly and was delivered to the Governor for signature on July 25, 2008. Governor David Paterson signed the bill during the first week of August. The new law will go into effect on February 1, 2009.
The legislative summary of the law provides an overview of its improvement of federal WARN Act requirements. The summary notes:
The proposed bill would establish a more stringent state WARN noticerequirement for employers of 50 or more employees. Such employerswould be required to give affected employees, the Department, andlocal workforce partners a minimum of 90 days notice of any actionthat would result in the layoff of 25 or more individuals. Thislengthier notice would give affected employees more time to get theirfinances in order, explore health care options, find another source ofincome, or begin training for future employment. Further, this noticewould give the workforce system more time to provide assistance toaffected employees, thereby increasing the affected workers` chancesof obtaining new employment or training, and decreasing the need forand duration of unemployment benefits and other economic safety-netprograms.
In addition, the bill would also authorize the Commissioner to takeaction against an employer who failed to provide timely notice. Thiswould serve as a substantial deterrent to violation of the noticerequirements, and would provide an effective mechanism forenforcement. The bill would also give a state cause of action toemployees for violation of the notice requirement. To limit the bill`simpact on employers who comply with the federal requirements, the billwould cap the employer`s liability at that resulting from 60 days ofviolation.
In the wake of the sudden closing of Jevic Transportation Inc. in Delanco, New Jersey, Assemblymen Herb Conaway Jr. and Jack Conners and Senators Stephen M. Sweeney and Jeff Van Drew have introduced forward thinking legislation to strengthen the protections of the state’s Millville Dallas Airmotive Plant Job Loss Notification Act.
Assembly Bill 2934 and Senate Bill 1956 would allow workers to defer payment of interest on mortgage loans for their primary residence for a period of up to 180 days when their employers violate advance notice requirements. The proposed bills seek to stabilize communities and keep workers in their homes while transitioning to new employment. The minimal burdens of the law also likely benefit mortgage lenders by avoiding a spiral of forecloses that can drive down housing prices and prevent lenders from obtaining repayment when loans are foreclosed and homes then auctioned at deeply discounted prices
Assembly Bill 2935 and Senate Bill 1957 empower state officials to seek immediate injunctive relief when advance notice is not provided. The bill seeks to provide an option for more immediate relief to workers, whose lawsuits for monetary damages typically take months or years before settlements or damage awards are entered.
Assembly Bill 2936 and Senate Bill 1958 provide free tuition for laid off workers when space is available in a job training course at a New Jersey state college or university and when no other financial aid is available to the worker.
The Assembly’s bills have reported out of the Assembly Labor Committee and are on their second reading while the Senate’s bills have been referred to the Senate Labor Committee.
Legislation has been introduced in the New York State Assembly (A.10847) and Senate (S.08212) that would provide advance notification to workers facing a mass layoff or workplace closing. Both bills have reported out of committee.
The bills would require advance notice at many work-sites presently exempted from federal WARN Act requirements. The bills would apply to employers of 50 or more full-time workers and require 90 days advance notice. In addition to allowing workers to bring lawsuits, the bills also permit enforcement by the state's Commissioner of Labor. The federal WARN Act only applies to employers of 100 or more full-time workers and requires just 60 days advance notice. The federal law does not provide for enforcement by federal or state departments of labor. An informed analysis in support of the legislation can be found on the Fiscal Policy Institute's website.
Update: As of June 18, 2008, S.08212 passed the full Senate, was delivered to the Assembly, and has been referred to the Ways and Means Committee. A.10847 reported out of committee and is ordered to a third reading before the Assembly.
The Iowa General Assembly is considering two bills - Senate File 2332 (successor to Senate Study Bill 3260) and House Study Bill 739 - that would require employers to provide 60 days advance notice to workers facing a mass layoff. The proposed bills would apply to employers of 25 or more workers who lay off 25 or more employees. Under the federal WARN Act, advance notice is required when employers of 100 or more workers layoff 50 or more employees. Noting the lower thresholds, the Daily Iowan quotes state Sen. Dick Dearden as follows:
"In a small community, it's a big thing," said Sen. Dick Dearden, D-Des Moines. "In Des Moines, 100 people get laid off, that happens every day. But in a smaller community, 50 people get laid off, it can really devastate the community." (See link to Daily Iowan news article here).
The Senate bill was approved in committee and is pending before the full Senate. A number of proposed amendments have been filed, most notably an amendment that would exempt new businesses and an amendment that would exempt large employers from the bill's notice requirements.
Update: As of June 12, 2008, the study bills remain pending before the labor committees of the House and Senate.
The Millville Dallas Airmotive Plant Job Loss Notification Act (A1044) became state law on December 20, 2007 after the New Jersey state legislature concurred in amendments requested by the Governor. The Act substantially mirrors the requirements of the federal WARN Act; however contains a few important differences.
Most notably, the state law increases the value of potential awards to long term employees by calculating damages based on average weekly pay multiplied by the employee's years of service. For workers who have been employed at the site for longer than eight years, potential awards may exceed those available under the federal statute. The state law further improves remedies to workers by barring the offset of severance pay against damage awards, requiring that attorneys fees be awarded to prevailing workers, and by allowing workers to receive the full measure of damages whenever notice is not given 60 days in advance of a plant closing or mass layoff. Finally, the state law provides significant improvements regarding the contents of notification and regarding the scope of information and services available to workers at affected worksites.
Since January of 2006, the New Jersey state legislature had been considering a bill to provide advance notification to workers of plant closings and mass layoffs. The Millville Dallas Airmotive Plant Job Loss Notification Act (A1044) passed the New Jersey State Assembly and was amended and then passed by the State Senate. The two bodies conferred and the Assembly subsequently passed the amended bill. On November 8, 2007, Governor Jon Corzine conditionally vetoed the Act and returned it to the legislature for further amendments to provide 60 days advance notice to workers, rather than the 90 day notice period provided in the bill as passed.
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.