Worker Adjustment and Retraining Act (WARN) Information for Employers
California WARN Act during COVID-19
On March 23, 2020, the following guidance was provided on the conditional suspension of the California WARN Act.
Has the 60-day notice requirement changed because of the COVID-19 pandemic?
Yes. The 60-day notice requirement is temporarily suspended for employers that satisfy the specific conditions. The suspension is intended to permit employers to act quickly in order to mitigate or prevent the spread of coronavirus.
What does the Order say about an employer’s ability to close an establishment (temporarily or permanently) because of COVID-19?
An employer may close down a business to prevent or mitigate effects of the COVID-19 pandemic without providing the statutory 60-day notice. For purposes of the California WARN Act, a closure may occur in one of three ways:
- A mass layoff: a layoff during any 30-day period of 50 or more employees
- A relocation: the removal of all or substantially all of the industrial or commercial operations to a different location 100 miles or more away
- A termination: the cessation or substantial cessation of industrial or commercial operations
What conditions qualify my businesses for suspension of the 60-day notice requirement?
An employer seeking to rely on the Executive Order’s suspension of the California WARN Act’s 60-day notice requirement must satisfy all of following conditions:
- The employer’s mass layoff, relocation or termination must be caused by COVID-19-related “business circumstances that were not reasonably foreseeable at the time that notice would have been required.”
- The employer must provide written notices to:
- Affected employees
- All representatives of the affected employees (e.g. unions)
- The local Workforce Development Board (the San Diego Workforce Partnership)
- The chief elected official of each city and county government within which the termination, relocation or mass layoff occurs
- The written notice must satisfy the following requirements:
- Gives as much notice as is practicable (reasonably possible) at the time notice is given to employees and their representatives
- Provides a brief statement as to why the 60-day notification could not be met.
- Includes the following statement: “If you have lost your job or been laid off temporarily, you may be eligible for Unemployment Insurance (UI). More information on UI and other resources available for workers is available at labor.ca.gov/coronavirus2019”
- Includes the following information:
- Name and address of the employment site where the closing or mass layoff will occur
- Name and phone number of a company official to contact for further information
- Statement as to whether the planned action is expected to be permanent or temporary and, if the entire location is to be closed, a statement to that effect
- Expected date of the first separation, and the anticipated schedule for subsequent separations
- Job titles of positions to be affected, and the number of employees to be laid off in each job classification
- In the case of layoffs occurring at multiple locations, a breakdown of the number and job titles of affected employees at each location
- An indication as to whether or not bumping rights exist
- Name of each union representing affected employees, if any
- Name and address of the chief elected officer of each union, if applicable
How do I send the California WARN Act Notices?
- To Employees – the required notice should be sent via any reasonable method of delivery that ensures receipt by the affected employee (e.g., first class mail, personal delivery, email, etc.)
- To the EDD – the required notice should be emailed to email@example.com, and the email should include the following information:
- The notice (as an attachment or within the body of the email)
- Contact information for an employer representative in the event the EDD needs more information
- To the Local Workforce Development Board and Chief Elected Officials – Employers should contact their Local Workforce Development Areas (Local Areas) for specific assistance and contact information.
- The San Diego Workforce Partnership is the Workforce Development Board for San Diego County. Submit WARN Notices via email to Peter Callstrom, President & CEO: PeterCallstrom@workforce.org
How do I know if I am an employer covered by the California WARN Act?
The Act is applicable to employers that employ, or have employed in the preceding 12 months, 75 or more full-time or part-time workers.
What should an employer do with respect to notice if a closure occurred on or after March 4, 2020 but before the Executive Order was issued on March 17, 2020?
The COVID-19 state of emergency began on March 4, 2020. Between that date and the issuance of the Executive Order, because the California WARN Act was not subject to suspension, employers should have been providing notice as specified under the Act.
Now that the Executive Order is in effect, an employer seeking to avail itself of the suspension must satisfy the conditions specified in the Executive Order (described above). The guidance does not provide for any sort of “cure” method for inadequate notice provided by an employer affected by COVID-19.
Do I still need to send a WARN Notice given the Executive Order suspending the 60-day notice requirement?
Yes. The Executive Order does not eliminate the written notice requirement, it only reduces the notice period and requires an employer to provide as much notice as practicable. An employer who orders a mass layoff, relocation or termination without any written notice could be subject to liability under the California WARN Act.
If an employer fails to give any notice at all on the basis that the layoff or closure is due to a “physical calamity,” will that employer be shielded from liability?
It depends. The administrative guidance provided is that an employer may only avail itself of the physical calamity exception, and provide no notice to affected employees whatsoever, if it can prove it meets the definition of a physical calamity. Therefore, an employer would need to prove that the COVID-19 pandemic is a physical calamity. However, there are currently no precedential cases interpreting what constitutes a physical calamity for purposes of the California WARN Act and given the suspension of the 60-day notice requirement, an employer can provide notice to affected employees on a shorter timetable so long as they meet the applicable conditions.
How long is the California WARN Act suspended?
It is suspended from March 4, 2020 through the end of the state of emergency declared because of COVID-19. No end date has been announced.
What is a WARN?
A WARN is a layoff notice from an employer. These notices provide protection to employees, their families and their communities by requiring 60 days’ notice of layoffs or plant closings, giving employees time to look for other work, file for unemployment or take care of other items that could be affected by their employment status.
When does an employer need to file a WARN?
In California, employers must file a WARN if they are a “covered establishment” with 75 or more employees (part-time or full-time). Employees must have been employed for at least 6 months of the 12-month period preceding the WARN date. Any plant closure or layoff that affects 50 or more workers within a 30-day period must be reported, regardless of the size of the company as a whole. Notification of layoffs and plant closures must occur at least 60 days in advance, or be subject to fines and worker compensation. Visit the Employment Development Department (EDD) WARN website for more detailed information regarding WARNs as well as their FAQ page for answers to common questions.
How does an employer file a WARN?
An employer must first notify employees of the upcoming layoff at least 60 days in advance of the layoff. Then, the employer must submit a WARN to the local Workforce Development Board, local elected officials (chief elected officials of the city and county governments in which the employer is located) and EDD. For a list of WARN recipients in San Diego County, click on the sample WARN notice below.
If a layoff is occurring in San Diego County, an employer must provide notice to the San Diego Workforce Partnership, which is the local Workforce Development Board for the region. Notification or questions can be sent to the Workforce Partnership’s Business Services team at firstname.lastname@example.org.
For a list of WARN recipients throughout the state of California, click here.
What must be included in a WARN?
The contents of a WARN must include the following:
- Name of business and address of affected employment site
- Name, phone number and email of company official to contact for more information
- Whether the layoff/closure will be permanent or temporary
- The expected separation date and anticipated schedule of subsequent separations
- Job titles of affected workers, and the number of affected workers in each classification
- Whether bumping rights exist
- The name/contact information of union representation/union official (if applicable)
- For multiple affected locations, a breakdown of the number of affected workers and their job titles by each location