California WARN Act Suspended During Crisis
Author: David B. Weisenfeld, XpertHR Legal Editor
March 23, 2020
The California WARN Act has been suspended for however long California remains in a state of emergency under an executive order signed by Gov. Gavin Newsom. The suspension effectively waives the state's 60-day notice requirement, for the time being, for covered employers affected by a COVID-19-related plant closing, mass layoff or shutdown.
The California law applies to employers with at least 75 employees, making it broader than the federal WARN Act, which covers only employers with 100 or more employees. It also can apply in situations where a California employer with 75 or more employees lays off at least 50 employees during any 30-day period at a single worksite.
Under the California WARN Act, it was unclear whether the coronavirus would qualify as an exception since nothing is mentioned about a pandemic. But in his executive order, which is retroactive to March 4, Gov. Newsom recognized the reality that employers have had to close rapidly without providing their employees the required advance notice because of the need to prevent or mitigate the spread of COVID-19.
The day after issuing the executive order, Gov. Newsom issued a "shelter in place"" order, which meant many employers would not have the opportunity to give 60 days' notice to employees.
As a result, the state's 60-day notice requirement will not apply provided that the employer:
- Gives as much written notice as is "practicable" to all affected employees;
- Provides a brief explanation why it must reduce the notification period; and
- Orders a mass layoff, relocation or termination that is caused by COVID-19 business circumstances that were not reasonably foreseeable when notice would have been required.
For written notice given after March 17, 2020, a California employer must include the following statement in the notice:
"If you have lost your job or been laid off temporarily, you may be eligible for Unemployment Insurance (UI). More information on UI and other resources available for workers is available at labor.ca.gov/coronavirus2019."
Proskauer employment attorney Anthony Oncidi, who heads the labor and employment practice at his firm's Los Angeles office called the executive order "welcome news," in noting that it will help employers grapple with at least a few of the imponderable questions presented by the pandemic.
"This kind of administrative flexibility and quick relief is precisely what is needed to help employers throughout the state," said Oncidi. "Other states with mini-WARN Acts should follow suit."
The federal WARN Act also does not directly address if a pandemic qualifies for an exception, but some will undoubtedly argue that COVID-19 and its impact were unforeseeable.