The Worker Adjustment and Retraining Notification Act (WARN) requires employers to provide a 60-day notice of plant closings or mass layoffs that are covered by the act.
The act applies to employers of 100 or more employees who work 20 or more hours per week, have been employed for more than six months, and are salaried and hourly workers.
When Is Notice Required?
The following situations require 60-days’ notice in writing to elected employee representatives and all unrepresented employees:
- Plant closings: A shutdown of an employment site or facility within a site where the shutdown will result in the layoff of 50 or more employees during a 30-day period.
- Mass layoff: A mass layoff during a 30-day period of 500 or more employees or more than 50 employees if they make up more than 33% of the employer’s workforce.
- Combination: An employment loss of 2 or more groups of workers during a 90-day period that is individually below the threshold levels but together meets the minimum requirements above.
What Are the Exceptions to the Notice Requirement?
Several situations are exempt from the 60-day notice requirement:
- Temporary facility or completion of a project: If the employees were hired with the understanding that their employment was limited to the project or temporary facility, the employer is not required to give notice.
- Strike: No notice is required if the plant closing results from an employee strike.
- Offer of transfer: Any employee offered a transfer before the layoffs to a facility within a reasonable distance is not considered to have suffered employment loss and is not entitled to notice as long as the new position is not considered a constructive discharge.
- Unforeseeable circumstances: If the layoffs are the result of business circumstances reasonably foreseeable at the time notice would be required or the result of a natural disaster, the notice requirement will be waived.
- Faltering company: In very narrow situations, companies seeking new capital or business to allow them to remain open will not be required to give notice if this would prevent the new capital. This exception applies only to plant closings.
What Are the Penalties for Failure to Provide 60-day Notice?
WARN might allow an employee to recover lost pay and benefits during the 60-day period if they were not given adequate notice. Payments made during that period may reduce this amount.
What Is Constructive Discharge?
When an employee resigns from their job because of unbearable work conditions, it is known as a constructive discharge. The employer treats resignation from such negative working conditions as a dismissal since no reasonable person would be able to continue working in these conditions.
When an employee is constructively discharged, they may have a right to file a complaint against their employer, as if they had been wrongfully terminated.
Is Constructive Discharge the Same as Wrongful Termination?
Wrongful termination is also referred to as wrongful discharge. It describes a legal circumstance in which an employee’s termination breaches one or more of the terms outlined in their employment contract.
Terminations must be illegal to be considered wrongful. An obvious example of wrongful termination is when an employer fires an employee based on their race rather than their performance on the job.
State laws vary regarding employer-employee relationships. However, most states have enacted at-will employment intending to reduce wrongful termination. Under at-will employment standards, employers may terminate an employee for any reason, so long as that reason is not an illegal one.
Employers are not required to give a reason for terminating an employee as long as the reason isn’t illegal. Essentially, an employee cannot be wrongfully terminated if they were terminated for no reason at all.
What Are Some Common Conditions that Could Cause Constructive Discharge?
In order to have constructive discharge, an employee’s working conditions must be so unbearable that no reasonable person would continue to work there.
Constructive discharge can be caused by a variety of factors, including:
- Bullying in the workplace by one or more coworkers or supervisors;
- Illegal discrimination, such as discrimination based on race, sex, religion, etc.;
- Sexual harassment;
- Hostile work environment;
- Dramatic and intolerable changes made to the employee’s working hours, pay, or responsibilities;
- Retaliation when an employee has issued a valid complaint, reported some wrongdoing, or acted as a whistleblower;
- Intolerable humiliation of the employee; and
- Breach of terms of employment contract, with said breach creating intolerable conditions.
It is possible that other employees who are in the same situation as the employee claiming constructive discharge might create intolerable conditions. A supervisor or other authority figure within the company doesn’t need to create the conditions. Constructive discharge liability could instead result from the employer’s failure to correct or stop the condition.
How Could an Employee Prove a Constructive Discharge Claim?
The Equal Employment Opportunity Commission, or “EEOC” for short, is an administrative agency that exists to enforce the various anti-discrimination laws passed by the federal government.
The Civil Rights Act and the Age Discrimination in Employment Act are examples of such laws. The EEOC requires that three main criteria be met to prove wrongful termination or constructive termination:
- Discriminatory or retaliatory behavior in the workplace must exist against the employee;
- It must be shown that such behavior was so intolerable to any reasonable person; and
- It must be shown that the employee was forced to resign or retire directly because of such behavior.
Some states may require other considerations, such as the number and severity of incidents. The amount of time between the employee’s intolerable behavior and their resignation may also be relevant.
For example, an employer may terminate a harassing employee immediately to improve the first employee’s workplace environment.
A significant period of time passes without any other incidents, and the employee then resigns. The resignation is unlikely to result from harassment by the terminated employee.
Employees who sue for constructive discharge must provide and submit evidence to support their claim.
Such evidence could include:
- Direct evidence, such as a verbal or written statement, letters, emails, voicemails, etc.; or
- Circumstantial evidence, such as examples of actions on the employer’s part before or after the firing.
What Remedies Are Available to an Employee Who Has Been Constructively Discharged?
The employee must file a complaint with the EEOC before taking any legal action for constructive discharge. There is a good chance that the EEOC will investigate the workplace, its management, and its practices.
A terminated employee may wish to file a civil lawsuit against their former employer if their investigation’s findings are inadequate or the EEOC’s provisions are lacking. They can do so after the EEOC has finished its investigation and the employee is given a “Right to Sue” letter.
They may be entitled to the following remedies if they are successful in their constructive discharge claim:
- Reinstatement to their former position, including former pay rate and benefits;
- Removal of the employee or supervisor who has responsibility for the intolerable conditions;
- A monetary damages award;
- Reimbursement of lost wages; or
- Reimbursement of attorney’s fees.
Can an Employer Hire Workers to Replace Employees on Strike?
Employers have the right to continue doing business when employees strike. Employers can hire substitute workers and even hire them permanently.
How Is a Strike Different from a Lockout?
Lockouts are employers’ versions of strikes. When a company or plant is locked out, the employer shuts it down. For lockouts to be legal, the employer must show some economic justification. Lockouts cannot be used wrongfully by employers to pressure unions or employees.
Do I Need a Lawyer?
If you feel you have been inappropriately dismissed as part of a mass layoff or otherwise, you should consult an experienced wrongful termination attorney. A lawyer can explain the law, advise you on your rights, and represent you in court.