When assessing whether there will be a sufficient number of employees suffering an employment loss to trigger WARN, an employer must be cognizant of WARN’s 90-day aggregation rule. Under this rule, separate layoffs during a 90-day period at a single site, each of which is less than the minimum number of employees required to trigger WARN, but which in the aggregate exceed that minimum number, are presumed to be part of the same plant closing or mass layoff. The employer can rebut the presumption by demonstrating the employment losses are the result of separate and distinct actions and causes and not an attempt by the employer to evade WARN. 29 USC §2102(d).
In Morton v. Vanderbilt University, 809 F3d 294 (6th Cir. 2016), the U.S. Court of Appeals for the Sixth Circuit recently examined whether two separate layoffs were within 90 days and, therefore, subject to WARN under its aggregations provision. Plaintiffs were a group of 194 individuals terminated by defendant in July 2013. The number of individuals terminated in July 2013 was insufficient to constitute a mass layoff under WARN. A second group consisting of an additional 279 employees of defendant was notified on Sept. 17, 2013. that their jobs would be eliminated 60 days later, on Nov. 16, 2013. Although the individuals in the second group were told to no longer report to work effective immediately, they continued to receive pay and benefits until November 2013. The district court held the second layoff occurred when the termination notices were given in September—less than 90 days after the first layoff—and therefore both layoffs were subject to WARN under its aggregation provision.
The Sixth Circuit reversed, holding the date of the second layoff was not until Nov. 16, 2013, and, since such date was more than 90 days from the plaintiffs’ terminations, the second layoff could not be aggregated to meet the mass layoff definition under WARN. The court held that for so long as the second group of employees continued to receive their full pay and benefits, there had not been a permanent cessation of employment. The Sixth Circuit noted there is no obligation under WARN for employers to permit employees to continue to perform work after proper notice is given.