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When the Loss of Jobs Requires Transit Employers to Provide Advance Notification

This is the final post in a five-part weekly series reviewing the legal landscape for transit employers considering automation.  Please click here to see the prior post in this series.

The previous installment in our series on labor law issues for the transit employer considering automation discussed the Federal Transit Act.  That Act, in part, requires advance notice of proposed changes that may result in the dismissal or displacement of employees, or rearrangement of the working forces covered by the agreement as a result of projects subject to the Act.  This final installment discusses notice requirements under other laws and agreements.

Layoff and plant closing notification laws may apply when the decision to automate results in layoffs or the loss of jobs in certain numbers.  The federal Worker Adjustment and Retraining Notification Act (WARN) is one such law.  Some states and local governments have their own notice requirements, and collective bargaining agreements may also require notice or other benefits for affected employees.

WARN requires employers who anticipate a plant closing or mass layoff to give 60 days’ advance notice to affected workers or their labor union.  Employers must also notify the state dislocated worker unit and the appropriate unit of local government.

Employers are covered by WARN if they have 100 or more employees.  Private, public and quasi-public entities operating in a commercial context and separately organized from the regular government are covered.  Covered employees include hourly and salaried employees, and managerial and supervisory employees.

In brief, notice is triggered by:

  • A plant closing which is a shutdown of a single site (one or more facilities or operating units) resulting in the loss of employment for 50 or more covered employees in any 30-day period;
  • A mass layoff which is not a plant closing but results in the loss of employment for 500 or more employees in a 30-day period or for 50 to 499 employees who constitute 33 percent of those working at a single site; or
  • Employment losses which occur in a 30-day period for two or more groups of workers and fail to meet the threshold requirements for a plant closing or mass layoff but which together reach the threshold level, during any 90-day period, of either a plant closing or mass layoff.

Notices must be in writing and must include:

  • Whether the planned action is expected to be permanent or temporary;
  • Whether the plant is being closed;
  • The expected date the plant closing or mass layoff will commence, as well as the date that the affected employees will be laid off or terminated (or set forth a two-week window during which the termination will occur);
  • An indication as to whether or not bumping rights exist; and
  • The name and telephone number of a company official who can be reached for further information.

Penalties for violations include back pay and benefits to each aggrieved employee for the period of violation up to 60 days.  Failure to provide notice to the local government results in a penalty not to exceed $500 for each day of violation.

WARN does not preempt, it supplements, state and local requirements and collective bargaining agreements that require other notice or benefits. 

State or local laws (sometimes called “mini-WARN acts”) may require advance notice to employees of impending layoffs and plant closings or relocations.  They often apply to smaller employers than the federal WARN Act.  They may require more than 60 days’ advance notice, or require more information be provided to government agencies than WARN requires.  On the other hand, some of these laws merely urge employers to comply with voluntary guidelines.  At least 18 states currently have some type of plant closing or mass layoff law.  Employers with affected operations in these states who are contemplating automation should familiarize themselves with these laws as well as the federal WARN Act.

For more details, check back for the next post in this five-part series.  For a more in-depth analysis and overview, please refer to our white paper, Labor Law Issues in Deciding to Automate Mass Transit Operations.

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