Layoff Protections for West Virginia Employees

The WARN Act gives West Virginia employees the right to advance notice of large layoffs.

West Virginia employees: Have you recently lost your job in a layoff or plant closing? If so, you should know your rights. Unfortunately, employers in West Virginia are not legally prohibited from closing a plant or laying off workers in the first place. But even if you don’t necessarily have the right to keep your job, you might have other rights.

For instance, union members may have layoff rights through their collective bargaining agreement. For example, the agreement might give employees who lose their jobs the right to be considered first for rehire or to “bump” less senior employees who were not targeted for layoff. To find out whether your collective bargaining agreement gives employees any rights in a layoff, ask your union representative.

Under federal law, employees may also have the right to notice before they lose their jobs. The Worker Adjustment and Retraining Notification (WARN) Act requires employers to give notice of substantial layoffs or plant closures. Employees may sue for damages if they don’t get notice as required by the law.

Some states have their own notice laws. They are often called “mini-WARN” laws, because they are modeled on the federal law. A few states even require employers to provide health insurance continuation or severance for a period after the layoffs. However, West Virginia doesn’t have a mini-WARN law. In West Virginia, employees have rights only through the WARN Act.

This article explains how the WARN Act protects West Virginia employees. For articles on other rights you may have if you are terminated, see our Losing or Leaving Your Job page, where you’ll find articles on when you should receive your final paycheck, how to continue your health benefits, and much more.

Covered Employers

WARN does not apply to small employers. Employers must give notice of impending job cuts only if they have 100 or more full-time employees, or at least 100 employees who work a combined 4,000 hours or more per week. Employees count as “full time” in this calculation if they work 20 or more hours a week and have worked for the employer for at least six of the 12 months before notice is required.

Covered Plant Closings and Layoffs

WARN applies only if a large number of employees lose their jobs in a plant closing or mass layoff.

  • A plant closing occurs when an employer shuts down a single site of employment (such as an office, building, or campus of buildings), or at least one operating unit or facility within a site, resulting in at least 50 full-time employees losing their jobs during any 30-day period.
  • A mass layoff is defined as job loss at a single employment site for 50 to 499 full-time employees, if the number of employees laid off makes up at least one third of the employer’s active workforce, or for at least 500 employees.

Notice Requirements

West Virginia employers must give employees notice 60 days before a mass layoff or plant closing. Employees who will lose their jobs are entitled to notice. Union representatives for any employees who will lose their jobs must also be notified.

WARN includes a list of information the notice must provide, such as the date when layoffs are expected to begin, whether the layoffs are expected to be permanent, and the date when the employee will receive a termination letter.

Exceptions to WARN

The law recognizes that employers can’t always give notice 60 days in advance. In some cases, employers can give less notice – or no notice at all – if it’s impossible to give the notice required by WARN.

No Notice

An employer doesn’t have to give notice before a mass layoff or plant closing resulting from an employee strike or lockout. An employer also doesn’t have to give notice before laying off employees who were hired only for a temporary project that has been completed or before shutting down a temporary facility. However, this exception applies only if the employees knew, when they were hired, that their jobs were temporary.

Shorter Notice

In some situations, employers may give less than 60 days’ notice. An employer who relies on one of these exceptions must give as much notice as possible. And, in its notice paperwork, the employer must explain why it couldn’t give the full 60 days required by law.

  • Faltering company. An employer may give less notice if it was actively seeking business or investments that would have allowed it to postpone or avoid the plant closing altogether, and it reasonably believed that notifying employees as required by WARN would have precluded it from obtaining the necessary investment. This exception applies only to plant closings.
  • Unforeseeable business circumstances. If the need for layoffs or plant closure could not reasonably be foreseen when the employer should have given 60 days’ notice, a shorter notice period is allowed.
  • Natural disasters. Shorter notice is allowed if layoffs or plant closure was necessitated by a natural disaster, such as an earthquake.

Enforcing Your Rights

Although the federal Department of Labor is responsible for interpreting and explaining WARN through regulations, it isn’t authorized to hear complaints, issue citations, or go after employers that violate the law. If your employer violates WARN, you must file a lawsuit to enforce your rights.

Workers who don’t receive the notice required by WARN can be awarded 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 gave notice 30 days in advance of a mass layoff, it owes employees damages for the remaining 30 days.

If your employer violates WARN, consult with an experienced West Virginia employment attorney. Employees who win a WARN lawsuit are entitled to attorney fees, which gives attorneys an incentive to take a good case. Also, WARN violations typically affect a large number of employees. This means an attorney might be willing to take on a group of employees in a class action.

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