What rights do Oregon employees have when their employer announces a layoff or plant closing? Union members might have contractual rights through their collective bargaining agreement, such as the ability to apply for open positions or to “bump” less senior employees who have not been targeted for layoff.
In addition to any contract rights you may have through your union, the federal Worker Adjustment and Retraining Notification (WARN) Act gives employees the right to some notice before a plant closing or large-scale layoff. Nothing prohibits employers from shutting down, relocating, or making big cuts in personnel. However, employers that go this route have to meet the notice requirement or pay damages to employees.
Some states have their own notice laws. A few even go farther, requiring employers to continue employee health insurance or pay severance for a short period after the layoff. However, Oregon doesn’t offer these protections. Oregon workers are protected only by the WARN Act.
This article explains the rights of Oregon employees under the federal WARN Act. To learn when you should receive your final paycheck, how to continue your health benefits, and more, see the articles at our Losing or Leaving Your Job page.
WARN: Covered Employers
The federal WARN Act applies only to larger employers. To be covered, employers must have at least 100 full-time employees (a full-time employee is one who works at least 20 hours a week and has been employed for at least six of the 12 months before notice is required), or at least 100 employees who work a combined 4,000 hours or more per week.
WARN: Covered Layoffs and Plant Closings
Employers don’t have to provide notice every time they fire someone. 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.
In a plant closing, an employer shuts down a single site of employment, or at least one operating unit or facility within such 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 group of buildings that form a campus or industrial park. Work areas that are physically separate might be considered a single employment site if they are used for the same purpose, reasonably close together, and share the same staff and equipment.
WARN also applies to plant closings or mass layoffs that occur in stages over 90 days. This rule is intended to prevent employers from getting around WARN’s notice requirements by conducting a series of smaller layoffs over time.
WARN: Notice Required
Employers who will conduct a plant closing or mass layoff must notify workers 60 days in advance. Union members aren’t entitled to individual notice. Instead, the employer must notify their union reps.
The notice must provide information about the planned layoffs, including whether they are expected to be temporary or permanent, whether the employee will have bumping rights, the expected date when the layoffs will begin, and when the employee will receive a termination letter.
WARN: Exceptions to the Notice Requirement
In certain situations, an employer either does not have to give notice at all or can give less than 60 days’ notice.
An employer isn’t legally required to give advance notice of a mass layoff or plant closing in these situations:
- Strikes and lockouts. WARN does not apply to a plant closing or mass layoff that is the result of a union strike or an employee lockout.
- Temporary facilities or projects. If an employer lays off workers who were hired only for a temporary project that is finished or closes a facility that was intended to be open only temporarily, no notice is required. However, this exception applies only if the employees knew, when they were hired, that their jobs were temporary.
Less Than 60-Days’ Notice
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.
- Natural disasters. An employer may give less than 60 days’ notice if the layoff or plant closing results from a natural disaster.
- Faltering company. A company may give less notice if it 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. If the reasons for the plant closing or layoff were not reasonably foreseeable when the employer should have given 60 days’ notice, a shorter notice period is allowed.
WARN: Enforcing Your Rights
Many federal employment laws are enforced by agencies, such as the Equal Employment Opportunity Commission or the Department of Labor. However, WARN doesn’t follow this model. The Labor Department is responsible for interpreting and explaining WARN through regulations, but it has no authority to enforce the law, investigate employee complaints, or file lawsuits representing employees. Employees must file a lawsuit in federal court to assert their WARN rights.
If your employer violates WARN, it 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 34 days in advance of a layoff, employees would be entitled to 26 days of pay and benefits, unless the employer paid them severance for that extra time.
Employers also can be ordered to pay the attorney fees and court costs of affected workers who sue and win. (Employers who don’t give proper notice to the state may also have to pay fines, but this money goes to the state, not to employees.)
If you believe your WARN rights have been violated, you should consult with an experienced Oregon 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.