Virginia employees who lose their jobs in a layoff or plant closing may have some notice rights. Unfortunately for employees, employers – including those in Virginia – are not legally prohibited from closing a plant or laying off workers in the first place. But even though employees don’t have the right to keep their jobs, they may have other rights.
Union employees may have layoff rights through their collective bargaining agreement. An employee may have the right to be considered first for rehire or to “bump” less senior employees who were not targeted for layoff, for example.
Employees may also have the right to advance notice. The federal Worker Adjustment and Retraining Notification (WARN) Act requires employers to notify employees of an upcoming plant closing or large-scale layoff. Employers who don’t give the required notice can be ordered to pay damages.
Some states have their notice laws. Because most of them are modeled on WARN, they are often called “mini-WARN” laws. A few states go further and require employers to pay a small severance or continue employee health insurance for a short period after the layoff. However, Virginia doesn’t have a mini-WARN law. Virginia employees have rights only through the WARN Act.
This article explains how the WARN Act protects Virginia employees. See our Losing or Leaving Your Job page for more information on your rights when you lose your job, including how to continue your health benefits, when you should receive your final paycheck, and more.
WARN applies only to larger employers, and only to layoffs or plant closings in which a large number or percentage of employees lose their jobs.
Small employers aren’t covered by WARN. Employers are subject to WARN 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. An employee is considered “full time” under the law if he or she works 20 or more hours a week and has worked for the employer for at least six of the 12 months before notice is required.
WARN applies only if a large number of employees lose their jobs in a mass layoff or plant closing, as defined by the law.
A mass layoff results in job loss at a single employment site (an office, building, or campus, for example) for
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 at least 50 full-time employees losing their jobs during any 30-day period.
Virginia employers who are subject to WARN must notify employees of a mass layoff or plant closing 60 days in advance. 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 include the date when layoffs are expected to begin, whether the layoffs are expected to be temporary or permanent, and the date when the employee will receive a termination letter, among other things.
Employers can’t always give the full 60-day notice the law requires. There are a handful of exceptions to WARN, which allow employers to give less notice – or even no notice at all – in certain circumstances.
An employer doesn’t have to give any advance notice of a mass layoff or plant closing that results from an employee strike or lockout. An employer also doesn’t have to give notice if it lays off employees who were hired only for a temporary project that has been completed, or to work in a temporary facility that is closing. This exception applies only if the employees knew, when they were hired, that their jobs were temporary.
Sometimes, WARN allows employers to give less than 60 days’ notice. An employer who relies on one of these exceptions must give as much notice as possible. In its notice paperwork, the employer must also explain why it couldn’t give the full 60 days notice.
The federal Department of Labor is responsible for interpreting and explaining WARN through regulations. However, the agency has no authority to investigate complaints, issue citations, or file lawsuits against employers that violate the law. The only way employees can enforce their WARN rights is by filing a lawsuit.
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 no notice under WARN, but paid employees two weeks of severance, it could be required to pay 46 days’ worth of damages.
If your employer violates WARN, you should consult with an experienced Virginia employment attorney. Employees who win a WARN lawsuit are entitled to attorney fees, which gives attorneys an incentive to take a good case. Because the damages available to any one employee are relatively low, an attorney might suggest going forward as part of a class action, on behalf of all of the employees who did not get the notice required by WARN.