Layoff Rights for Virginia Employees

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.

Who Is Covered by WARN?

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.

Employers Who Must Comply With WARN

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.

Mass Layoffs and Plant Closings Covered by WARN

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

• at least 500 full-time employees, or
• 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.

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.

Notice Required by WARN

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.

Exceptions to WARN's Notice Requirement

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.

• Unforeseeable business circumstances. Shorter notice is allowed if the reasons for the plant closing or layoff could not reasonably be foreseen when the employer should have given 60 days' notice.
• Natural disasters. Shorter notice is allowed if the layoff or plant closing results from a natural disaster.
• 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 giving notice as required by WARN would have precluded it from obtaining the necessary investment. This exception does not apply to mass layoffs, only to plant closings.

If Your Rights Are Violated

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.