7th Circuit Finds That Hours Lost From Layoffs Cannot Be Counted As Reduction in Force

In September, the 7th Circuit Court of Appeals released an opinion addressing the potential relationship between the WARN Act's employment loss provisions for layoffs and reductions in workers hours.  In Leeper v. Hamilton Cty. Coal, LLC, 939 F.3d 866 (7th Cir. 2019), the court considered facts where 157 workers were temporarily laid off from their employment at a coal mine in Illinois.  Before six months had expired, a number of employees were called back to work.  The remaining workers sought to invoke the protections of the Act under the reduction in hours of work provision of 29 USCS § 2101 (6)(C).  The workers alleged that the lost time of all the laid off workers resulted in a reduction of more than 50 percent of the hours of more than 50 percent of the workers over the previous six months.  The court first considered whether the initial layoff was in fact a termination under 29 USCS § 2101 (6)(A).  Importantly, the court distinguished a termination from layoffs.  The court recognized that there are no time requirements attached to the termination provision.  The court thus found that if the facts establish a termination, there is no requirement that the termination last for six months or longer.  The court however found that the initial job separation was a layoff and not a termination and that less than 33% of the workforce had been laid off for more than six months.  The court then addressed the reduction in force argument and found that the reduction in hours cannot include the lost hours of temporarily laid off workers to establish an employment loss under the reduction in hours provision. The court reasoned that if those hours were included, then the layoff provision of 29 USCS § 2101 (6)(B) would be mere surplusage to the reduction in hours provision.