Unfortunately for employees, no law prohibits employers – including South Dakota employers -- from relocating or closing a plant, laying off workers, or downsizing. However, employees who lose their jobs in a mass layoff or plant closing may have some rights. For example, union members might have rights through their collective bargaining agreement, such as the right to apply for open positions across the company, to be considered first for rehire, or to “bump” less senior employees who have not been targeted for layoff.
In addition to any rights employees may have through their union, the federal Worker Adjustment and Retraining Notification (WARN) Act gives employees the right to advance notice of a plant closing or large-scale layoff. Some states have their own notice laws. A few go further, requiring employers to continue employee health insurance or pay severance for a short period after the layoff. However, South Dakota doesn’t offer these protections. In South Dakota, employees are protected only by the WARN Act.
This article explains the rights of South Dakota employees under the WARN Act. For more information on your rights when you lose your job, including how to continue your health benefits and when you should receive your final paycheck, see our Losing or Leaving Your Job page.
Employer Coverage Under WARN
Smaller employers are not subject to the requirements of the WARN Act. Employers are covered by WARN only if they have at least 100 full-time employees or at least 100 employees who work a combined 4,000 hours or more per week.
An employee must work at least 20 hours a week and have been employed for at least six of the 12 months before notice is required to count as full time.
Layoffs and Plant Closings Under WARN
WARN does not apply to every layoff or termination. Notice is required only if a certain number or percentage of employees will lose their jobs in a mass layoff or plant closing.
A mass layoff is a reduction in force resulting in job loss at a single employment site for
- 500 or more full-time employees, or
- 50 to 499 full-time employees, if the number of employees laid off makes up at least 33% of the employer’s active workforce.
A plant closing occurs when an employer shuts down a single site of employment, or at least one operating unit or facility within a site, resulting in 50 or more full-time employees losing their jobs during any 30-day period.
A site of employment is one geographical location of an employer’s operations, such as a building, an office suite, or a campus. Separate work spaces might be considered a single employment site if they are used for the same purpose, share the same staff and equipment, and are reasonably near to each other.
WARN also applies to plant closings or mass layoffs that occur in stages over 90 days, if the total number of employees who lose their jobs over the 90-day period meets the numerical requirements above. This rule is intended to catch employers who try to skirt WARN’s notice requirements by conducting a series of smaller layoffs over time.
Notice Required Under WARN
Employers must notify workers 60 days in advance of a mass layoff or plant closing. Employees who will lose their jobs are entitled to notice; for employees who are union members, the employer must notify their union representative instead. The notice must provide information about the planned layoffs, including whether they will be temporary or permanent, whether the employee will have bumping rights, the expected date when layoffs will begin, and the date when the employee will receive a termination letter.
In some situations, an employer doesn’t have to give the full 60-day notice WARN would otherwise require.
No Notice Required
An employer isn’t legally required to give advance notice of a mass layoff or plant closing that is the result of an employee strike or lockout. An employer may also forego giving notice if it lets go of employees who were hired only for a temporary project that has been completed, or as a result of closing a temporary work facility. (this exception applies only if the employees knew, when they were hired, that their jobs were temporary.)
Shorter Notice Allowed
Sometimes, employers may comply with WARN by giving less than 60 days’ notice. An employer who relies on one of these exceptions must give as much notice as possible, however. The employer must also explain why it couldn’t give the full 60 days that would otherwise be required.
- Faltering company. Shorter notice is allowed if the company was actively seeking business or money that would have allowed it to postpone or avoid the plant closing altogether, and it reasonably believed, in good faith, that giving 60 days’ notice would have precluded it from obtaining the necessary business or money. (This exception applies only to plant closings, not mass layoffs.)
- Unforeseeable business circumstances. Shorter notice is allowed if the reasons for the plant closing or layoff were not reasonably foreseeable when the employer should have given 60 days’ notice.
- Natural disasters. An employer may give less notice if the layoff or plant closing results from a natural disaster.
Enforcing Your WARN Rights
No federal agency is authorized to enforce the WARN Act. Although the federal Department of Labor is responsible for interpreting and explaining WARN through regulations, it has no authority to investigate employee complaints or file lawsuits representing employees. Employees must file a lawsuit in federal court to assert their WARN rights.
An employer that violates WARN can be ordered to pay damages to affected workers for all compensation and benefits lost due to the WARN violation, up to the full 60 days WARN requires. This amount is reduced by any wages earned or severance payments the employer made voluntarily during that time. For example, if an employer should have given 60 days’ notice, but gave notice only 35 days in advance of a layoff, employees would be entitled to 25 days of pay and benefits, unless the employer paid them severance for that extra time.
If your WARN rights have been violated, you should consult with an experienced South Dakota employment lawyer. WARN includes the right to attorney fees if you win, so it provides an incentive for lawyers to take strong cases. However, the damages available to any one employee are relatively low. Therefore, a lawyer may advise either trying to negotiate a settlement or going forward on behalf of all affected employees, as part of a class action lawsuit.