Worker Adjustment and Retraining Notification Act Frequently Asked

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the public in any way, except as authorized by law or incorporated into a contract, cooperative

agreement, or grant. This document is intended only to provide clarity to the public regarding

existing requirements under the law or agency policies. DOL may not cite, use, or rely on any

guidance that is not posted on this site, except to establish historical facts.

Worker Adjustment and Retraining

Notification Act Frequently Asked

Questions

Introduction

The federal Worker Adjustment and Retraining Notification (WARN) Act (or Act) is enforced by

private legal action brought in the U.S. District Court for any district in which the violation is alleged

to have occurred or in which the employer transacts business. Any dispute regarding the

interpretation of the WARN Act including a closing or layoff’s foreseeability will be determined on a

case-by-case basis in the particular court proceeding. The role of the U.S. Department of Labor

(Department) is limited to providing guidance and information about the WARN Act; such guidance

is not binding on courts and does not replace the advice of an attorney. Some States have their own

laws addressing layoffs and worksite closures. Information on State notice requirements can be

obtained by contacting the applicable state dislocated worker unit.

Employer Questions for COVID-19

I am an employer who temporarily laid off my employees at the beginning of the

pandemic when we anticipated reopening the business after a few weeks. However, due

to changing circumstances, I now am concerned that the layoff will need to be extended

beyond 6 months, and may become permanent. When do I need to provide my

employees with a WARN Notice?

Short-term layoffs (6 months or less) that are later extended to last longer than originally

contemplated are expressly addressed by the federal WARN Act and regulations. When a layoff

is extended beyond 6 months, the layoff is treated as an “employment loss” from the date the

layoff started and may violate the WARN Act unless: (1) the extension beyond 6 months is

caused by business circumstances not reasonably foreseeable at the time of the initial layoff, and

(2) notice is given at the time it becomes reasonably foreseeable that the extension beyond 6

months will be required.

Depending on the specific circumstances, events that lead an individual employer to

unexpectedly decide to extend the duration of a furlough or layoff may constitute unforeseeable

business circumstances such that a shortened notice period may be consistent with the

requirements of the WARN Act. An employer’s extension of the layoff will be judged based on

whether the need to extend the layoff could reasonably have been foreseen as of the time notice

would have been required. The length of notice will be judged based on whether notice was

provided at the point when it became reasonably foreseeable that extension of the layoff would

be required. An employer relying on this exception from the general rule for notice is responsible

for showing that the conditions for the exception were met. Please see WARN Act, 29 U.S.C. §

2102(c), and the regulations at 20 CFR 639.4(b).

Am I covered by the WARN Act?

The WARN Act requires employers with 100 or more full-time employees (not counting workers

who have fewer than 6 months on the job) to provide at least 60 calendar days advance written notice

of a worksite closing affecting 50 or more employees, or a mass layoff affecting at least 50

employees and 1/3 of the worksite’s total workforce or 500 or more employees at the single site of

employment during any 90-day period. Not all dislocations require a 60-day notice; the WARN Act

makes certain exceptions to the requirements when employers can show that layoffs or worksite

closings occur due to faltering companies, unforeseen business circumstances, and natural disasters.

In such instances, the WARN Act requires employers to provide as much notice to their employees

as possible.

If I am considering a temporary layoff or furlough, do I need to provide workers with a

notice under the WARN Act?

A WARN Act notice must be given when there is an employment loss, as defined under the Act. A

temporary layoff or furlough that lasts longer than 6 months is considered an employment loss. A

temporary layoff or furlough without notice that is initially expected to last six months or less but

later is extended beyond 6 months may violate the Act unless:

1. The extension is due to business circumstances (including unforeseeable changes in price or cost)

not reasonably foreseeable at the time of the initial layoff; and

2. Notice is given when it becomes reasonably foreseeable that the extension is required.

This means that an employer who previously announced and carried out a short-term layoff (6

months or less) and later extends the layoff or furlough beyond 6 months due to business

circumstances not reasonably foreseeable at the time of the initial layoff is required to give notice at

the time it becomes reasonably foreseeable that the extension is required. A layoff extending beyond

6 months for any other reason is treated as an employment loss from the date the layoff or furlough

starts. The WARN Act is enforced by private legal action in the U.S. District Court for any district in

which the violation is alleged to have occurred or in which the employer transacts business. Thus an

employer may need to prove that it could not foresee the circumstances if a WARN Act action is

brought. Any dispute regarding the interpretation of the WARN Act including its foreseeability will

be determined on a case-by-case basis in such a court proceeding. The role of the U.S. Department of

Labor is limited to providing guidance and information about the WARN Act; such guidance is not

binding on courts and does not replace the advice of an attorney.

For permanent layoffs, may I claim an exception to the WARN Act because of COVID-19?

If I do, what are my responsibilities?

The Department recommends that employers review the “unforeseeable business circumstances”

exception to the 60-day notice requirement (contained in the WARN Act at § 3(b)(2)(A), and the

WARN regulations at 20 CFR 639.9) set out below:

The “unforeseeable business circumstances” exception… applies to plant closings and mass

layoffs caused by business circumstances that were not reasonably foreseeable at the time

that 60-day notice would have been required.

(1) An important indicator of a business circumstance that is not reasonably foreseeable

is that the circumstance is caused by some sudden, dramatic, and unexpected action or

condition outside the employer’s control. A principal client’s sudden and unexpected

termination of a major contract with the employer… and an unanticipated and dramatic

major economic downturn might each be considered a business circumstance that is not

reasonably foreseeable. A government ordered closing of an employment site that occurs

without prior notice also may be an unforeseeable business circumstance.

(2) The test for determining when business circumstances are not reasonably foreseeable

focuses on an employer’s business judgment. The employer must exercise such

commercially reasonable business judgment as would a similarly situated employer in

predicting the demands of its particular market. The employer is not required, however,

to accurately predict general economic conditions that also may affect demand for its

products or services.

When invoking an exception to the WARN Act’s 60-day notice requirement, a covered employer is

still required to:

1. Give as much notice as is practicable; and

2. Include a brief statement of the reason for giving less than 60-days’ notice along with the other

required elements of a WARN notice.

Applicability of the “unforeseeable business circumstances” exception rests on an employer’s

particular business circumstances. The WARN Act is enforced by private legal action in the U.S.

District Court for any district in which the violation is alleged to have occurred or in which the

employer transacts business. Thus an employer may need to prove that it could not foresee the

circumstances 60 days in advance if a WARN Act action is brought. Any dispute regarding the

interpretation of the WARN Act including its exceptions will be determined on a case-by-case basis

in such a court proceeding. The role of the U.S. Department of Labor is limited to providing

guidance and information about the WARN Act; such guidance is not binding on courts and does not

replace the advice of an attorney.

Will the Department of Labor provide me with a letter that I have complied with the

WARN Act?

No; the WARN Act is enforced by private legal action in the U.S. District Court for any district in

which the violation is alleged to have occurred or in which the employer transacts business. Any

dispute regarding the interpretation of the Act including its exceptions is determined on a case-by-

case basis in such a court proceeding. The role of the U.S. Department of Labor is limited to

providing guidance and information about the WARN Act; such guidance is not binding on courts

and does not replace the advice of an attorney. While the Department can provide guidance and

information about the WARN Act, it has neither investigative nor enforcement authority under the

WARN Act; therefore, it cannot issue advisory opinions on specific cases.

Can the U.S. Department of Labor provide copies of WARN Notices or statistics on the

number of WARN Notices that have been filed? Do States receive WARN Notice

information?

No; the U.S. Department of Labor neither maintains a database of WARN notices, nor requires

employers to provide WARN notices to the Department. But employers are required to provide

WARN notices to the state dislocated worker unit. Some States publish WARN notice listings on

their websites but this is voluntary for States, so the frequency of listings and amount of information

varies from State to State. The Department recommends reaching out to each State for information or

contacting the State Rapid Response Coordinators if you are having trouble locating this information

online.

WARN FAQ for Workers on COVID-19 (also known as the coronavirus)

My employer has temporarily closed due to COVID-19. Was I supposed to receive notice

under the WARN Act?

Employee protections under the WARN Act apply to those who suffer “an employment loss”; a

layoff (or furlough) that is “temporary” may not be an employment loss for WARN Act purposes.

Under the Act, an employee who is laid off does not suffer an employment loss unless the layoff

extends beyond 6 months. Therefore, a temporary layoff of 6 months or less does not trigger the need

for the employer to issue a WARN Act notice. However, if the layoff lasts for more than 6 months,

employees would be considered to have experienced an employment loss and would have been

entitled to notice before the layoff unless it was not reasonably foreseeable at the time of the initial

layoff that the layoff would extend beyond 6 months. If a layoff is extended beyond 6 months due to

business circumstances, notice is required when it becomes reasonably foreseeable that the extension

is required. The WARN Act is enforced by private legal action in any U.S. District Court for any

district in which the violation is alleged to have occurred or in which the employer transacts business.

In such an action an employer may have to prove that it could not foresee the circumstances

necessitating an extension of the layoff. Disputes regarding the WARN Act will be determined on a

case-by-case basis in such a court proceeding. The role of the U.S. Department of Labor is limited to

providing guidance and information about the WARN Act; such guidance is not binding on courts

and does not replace the advice of an attorney.

My employer has permanently closed due to COVID-19 but did not provide a 60-day

notice stating that the loss of business from the virus was an unforeseen business

circumstance. Does this violate my rights under the WARN Act?

Under the WARN Act, employers can claim an exception to the 60-day notice requirement for

unforeseeable business circumstances. The exception to the advance notice requirement applies to

worksite closings and mass layoffs caused by business circumstances that are not reasonably

foreseeable at the time that 60-day notice would have been required. An important indicator of a

business circumstance that is not reasonably foreseeable is that the circumstance is caused by a

sudden, dramatic, and unexpected action or condition outside the employer’s control. This can

include an unanticipated and dramatic major economic downturn. A government ordered closing of

an employment site that occurs without prior notice also may be an unforeseeable business

circumstance. Similarly sudden, dramatic, and unexpected action outside the employer’s control,

announced and implemented swiftly, such that the employer is unable to provide 60 days’ notice may

also fall within this exception to the 60-day notice requirement.

When invoking an exception to the WARN Act’s 60-day notice requirement, a covered employer is

still required to:

1. Give as much notice to employees (or the employees’ representative(s)) and State and local

government officials as is practicable (which may, in some circumstances, be notice after the

fact); and

2. Include a brief statement of the reason for giving less than 60-days’ notice along with the other

required elements of a WARN notice.

The WARN Act is enforced by private legal action in any U.S. District Court for any district in

which the violation is alleged to have occurred or in which the employer transacts business. Thus an

employer may need to prove that it could not foresee the circumstances necessitating the worksite

closing or mass layoff if such enforcement action is brought. Any dispute regarding the interpretation

of the WARN Act will be determined on a case-by-case basis in such a court proceeding. The role of

the U.S. Department of Labor is limited to providing guidance and information about the WARN

Act; such guidance is not binding on courts and does not replace the advice of an attorney.

My employer sent WARN Notices by email because the business is currently closed. Is

that allowed?

The regulations implementing the WARN Act state that: “Any reasonable method of delivery…

which is designed to ensure receipt of notice” is an acceptable form of notice. See 20 CFR 639.8. A

WARN notice sent via email must still be specific to the individual employee, and comply with all

requirements of the WARN Act statute and regulations regarding written notifications.

My employer is talking about temporarily closing the office. Will we get a WARN notice if

there are only 30 employees? Will I get a WARN Act notice if my employer is a nonprofit

association?

Generally, WARN Act notice requirements apply to employers of 100 or more workers. A WARN

Act covered employer is one that employs:

(a) 100 or more employees (not counting workers who are part time – *see below for more

information on who is considered part time); or

(b) 100 or more employees (including part-time workers) who, in the aggregate, work at least 4,000

hours per week (excluding overtime hours).

A “part-time” employee for WARN Act coverage is someone who has worked an average of less

than 20 hours per week or less than 6 of the last 12 months.

The WARN Act notice requirements apply to private for-profit businesses, nonprofit organizations,

and quasi-public entities (when the entity is organized separately from regular government).

I believe my rights under the WARN Act were violated by my employer. Can the U.S.

Department of Labor force my employer to comply or otherwise enforce the provisions

of the WARN Act?

While the U.S. Department of Labor can provide general guidance and information about the

provisions of the WARN Act and implementing regulations, employee rights under the Act, and

employer responsibilities under the Act, the Department has neither investigative nor enforcement

authority under the WARN Act. Therefore, any employee concerned about a WARN Act violation

should seek legal counsel and consider whether to file suit in the applicable U.S. District Court. An

employer who violates the provisions of the WARN Act may be found liable for an amount equal to

the amount of wages and benefits for each day of the period of violation, up to 60 days. In any such

suit, the court, in its discretion, may allow the prevailing party a reasonable attorney’s fee as part of

the costs. The role of the U.S. Department of Labor is limited to providing guidance and information

about the WARN Act; such guidance is not binding on courts and does not replace the advice of an

attorney

I lost my job or am temporarily laid off due to COVID-19. What do I do now?

The U.S. Department of Labor-supported CareerOneStop.org website can direct workers and

employers to resources and help answer questions about job loss, layoffs, business closures,

unemployment benefits, and job training. Workers and employers can also call the U.S. Department

of Labor’s toll-free help line at 1-877-US-2JOBS (TTY: 1-877-889-5627).

Workers eligible for regular unemployment insurance benefits, as well as expanded benefits under

the CARES Act, should file an unemployment benefits claim with the State where you worked. You

can find the contact information for your State at https://www.dol.gov/coronavirus/unemployment-

insurance#find-state-unemployment-insurance-contacts.

State Agency Questions for COVID-19

Are employers allowed to issue WARN notices by email to employees, State Rapid

Response Coordinators, and Chief Elected Local Officials?

Yes, employers may issue WARN notices via email, although the same requirements for the content

of the notices remain in place (found at 20 CFR 639.7). Given the COVID-19 pandemic-related

guidelines and orders issued by many States, email may be a preferred method of notifying State and

local government personnel, since many State officials are working from home. Employers are

encouraged to reach out to these offices for more information on the preferred method of delivery.

States should carefully review their policies and procedures to ensure that they can receive electronic

notices.

What are the expectations for States managing the receipt of WARN notices and the

provision of assistance to workers under the WARN Act?

States are expected to follow existing policies and procedures, as well as any further guidance

provided by the State related to the COVID-19 pandemic.

When a State learns of a major dislocation (a worksite closing or mass layoff) resulting

from the COVID-19 pandemic, should States add them to WARN logs before receiving

WARN notices from the employers?

While the COVID-19 pandemic does not excuse employers from issuing WARN notices to

employees, States, and Chief Local Elected Officials, the fast-moving nature of the pandemic may

require certain worksite closings and mass layoffs to be implemented before completion of the 60-

day notice requirement. Such closings and mass layoffs may fall under one of the exceptions to the

60-day notice requirement. Whether to add such actions to State WARN logs before receiving notice

from employers is a State-level decision; States should continue to follow their policies and

procedures for logging WARN notices. States may wish to track layoffs due to COVID-19, as well as

whether notices are received concerning such layoffs.