If a Hawaii employer downsizes, conducts a mass layoff, closes a facility, or otherwise cuts a significant number of jobs, employees have certain rights. Unfortunately, employees don’t have a legal entitlement to keep their jobs, nor to be hired into open positions with the company or be considered for rehire. Employers are not prohibited from letting go off workers when financial times get tough.
However, employees do have the right to a certain amount of notice before a plant closing or large-scale layoff. If the employer fails to give proper notice, employees are entitled to damages.
The federal Worker Adjustment and Retraining Notification (WARN) Act gives employees these rights. Almost half of the states have similar laws, and Hawaii is one of them. In fact, Hawaii goes further than WARN: In addition to notice, it requires employers to pay a small amount of severance to employees who will lose their jobs.
This article provides information on the rights of Hawaii employees under the federal WARN Act and Hawaii law. See the articles at our Losing or Leaving Your Job page for information on your other rights when you are laid off, including when you should receive your final paycheck, how to continue your health benefits, and more.
WARN require certain larger employers to give advance notice of mass layoffs or plant closings that will result in a certain number or percentage of employees losing their jobs.
Under federal law, employers are covered 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. (Full-time employees are defined as those who work at least 20 hours a week and have been employed for at least six of the 12 months ending on the date when notice must be given under WARN.)
Under Hawaii law, employers are covered if they own an industrial, commercial, or other business entity with at least 50 employees at any time during the previous 12 months.
Not every layoff or plant closing is covered by federal or state law.
WARN applies only to plant closings and mass layoffs.
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.
Hawaii law applies if an employer permanently or partially closes its business, or relocates all or a substantial portion of its business operations out of state.
If a layoff or plant closing is covered by WARN employees who will lose their jobs are entitled to notice 60 days in advance. (Employees who are union members need not receive individual notice; instead, the employer must notify their bargaining reps, who are expected to pass the information along to the affected employees.)
The notice must provide specified information about the planned layoffs, including whether they are expected to be temporary or permanent, the expected date when the layoffs will begin and when the employee will receive a termination letter, and whether the employee will have bumping rights.
Hawaii’s plant closing law also requires notice: Employers covered by the law must give notice to employees 60 days in advance of closing or relocating their business.
In some situations, an employer either does not have to give notice at all or can give less than 60 days’ notice under WARN. There are no exceptions to Hawaii’s plant closing law.
WARN does not apply to temporary or seasonal employees or to temporary projects that are completed, as long as the employees knew when hired that the jobs were for a limited time. It also doesn’t apply to job losses occasioned by strikes or lockouts.
Under the federal WARN Act, employers may comply with WARN by giving as much notice as they can (even if they give less than 60 days’ notice) in a few situations. If an employer relies on one of these exceptions, it must give as much notice as possible and must state (as part of the written notice requirement) why it couldn’t give the full 60 days that would otherwise be required.
In addition to the notice entitlement, Hawaii employees covered by the state’s law also have the right to a small severance payment. Employers must pay a dislocated worker allowance for four weeks. This allowance is intended to supplement unemployment compensation. Employees are entitled to the difference between their former weekly wage (when employed) and what they are receiving each week in unemployment benefits.
An employer who violates the federal WARN law may be ordered to pay all affected workers for all pay and benefits they lost for the period of 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 30 days in advance of a layoff, employees would be entitled to 30 additional days of pay and benefits, unless the employer paid them severance covering that extra time.
The same damages are available for violation of the notice provision of Hawaii’s plant closing law. In addition, employers who fail to pay the required dislocated worker allowance are liable to each employee for three full months’ of compensation.
If you believe your rights under WARN or Hawaii’s plant closing law have been violated, you should consult with an experienced Hawaii 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.