More importantly, Iggy, didja see the bit where I asked you to provide a relevant legal opinion? Unless you’re a professional at reading Congressional acts and have defended your interpretation in court, I was asking for something a bit more than what you’ve gleaned from various blogs.
I read the regs and the act. Linked right from the Department of Labor’s own website on WARN Act notifications.
The Department of Labor itself notes "the intent of Congress that notice be provided even where not required by WARN. " Cite That is DOL’s own analysis in formulating the regulations governing the WARN Act.
[Cite]((e) Section 639.1(e) Notice in Ambiguous Situations This section discusses the desirability of giving notice in situations where questions may arise about the applicability of WARN. While no comments were received which directly discussed this provision, DOL has received numerous comments and questions which illustrate the principle of this provision and demonstrate the existence of a possible source of confusion for some employers. These comments inquire about whether or not an employer planning a plant closing or mass layoff is covered because of some events which may occur between the date that notice is required to be given and the date of the event. An example of a typical inquiry is: an employer is planning to close a unit which employs 55 people; the employer will subsequently offer early retirement incentives to some of these employees, six of whom accept the early retirements before the termination occurs; since only 49 workers will finally be terminated is there a covered plant closing Technically, the correct answer may be that no covered plant closing will have occurred (assuming, of course, that other actions within the 30- or 90-day aggregation periods provided in WARN do not trigger coverage). However, an employer has to make a decision on whether or not to give notice based on what it knows 60 or more days before the plant closing or mass layoff will occur. If, as in this example, at the time the decision to give notice has to be made, the employer is not certain that its early retirement incentives will be accepted or how many workers will accept early retirement, the employer is best advised to give notice. If the employer “gambles” that a sufficient number of employees will accept the offer and “loses”, the employer’s cost will be 60 days’ pay and benefits to at least 50 workers. If the employer gives notice, the cost will be the cost of preparing and mailing 55 notices. Given the relative costs involved, the employer is best advised to give notice unless it is certain, at the time it must decide to give notice, that there is no possibility of coverage.)
That is Department of Labor’s own analysis from long before this became a political hot potato.
So…
According to the DOL, if it is uncertain that the conditions that mandate a notice will exist, the employer is advised to send them out.
If the employer gambles that the condition will not exist and loses, the employer will be liable. The penalty is limited to pay and benefits for the affected workers to cover a 60 day period and $500 per day fine if notice is not provided to the relevant local government authority.
If the employer gambles that the condition will not exist and wins then no-harm no-foul.
I’ll match your DOL letter against DOL’s own analysis.
WARN Act only applies if an employer intends to lay off employees. If contractors do not intend to lay off workers then no notice is required.
Employers may be more willing to gamble that next year’s budget will provide continuing funding when it comes up as a part of the normal budget cycle.
With sequestration a cut is already in place and it will take an act of Congress to overturn that cut.
Perhaps if the annual budget was worked out in the context of an already implemented looming cut then the situation might be different. Employers might be more likely to plan to lay off workers.
The WARN Act is a bit of an odd duck in that notice could be retroactively required in some circumstances. The DOL provides an example(PDF link) of an employer making continuing progressive cuts in the workforce. If the lay offs within a 90 day rolling period looking back total a sufficient number of workers then all of them are entitled to notice, even those who were laid off previously under circumstances that no notice was required at the time.
But if it’s only recommended and not legally required at this point, what’s wrong with the administration telling them they will defend them against anyone who use a suit to claim it is required?
And a non-rhetorical question: why in the world did they pick February 1 for the date instead of February 4, which would insure this wouldn’t be an issue? (I assume it’s part of the law that the budget changes happen then, and not something in the Constitution or similar, as I haven’t found anything about February 1 via Google.)
So that’s what DOL says. Your interpretation is:
Except that’s not at all what the example says. The example says a company plans to do something,but technically what they plan to do doesn’t comprise a plant closing; do they send the notice anyway? They know what’s gonna happen but aren’t certain whether to notify.
That’s totally different from this circumstance, under which people don’t know what’s going to happen.
So, again: do you have any relevant legal opinion?
Lockheed announced that it will not send out WARN notices. Was it because Barack Hussein 0bama arm-twisted them into breaking the law? You be the judge:
So, it is just like I implied in my riddle to adaher: the key date is NOT when sequestration would be ordered; the key date is when a company expects to have to lay off people. Since Lockheed now knows that its contracts with the government are not all going to turn into Cinderella’s pumpkin on January 2nd, that it is going to take some time for the government to decide what contracts to curtail, and it would take additional time for the revised contracts to impact the workforce, there is no reasonable basis for the company to tell all its employees they may lose their job on January 2nd.
I await the acknowledgment of the error by the OP and others. Just like I did in post #55 on this very same subject a couple months ago.
Absolutely correct on the date as I noted previously.
To expound on that, the Department of Labor has examples that seem to indicate that the date the first persons would be laid off is the relevant date. Their last actual working day is the day they were laid off.
So in a hypothetical, suppose 20 people are laid off effective Feb 1 and 35 more are laid off effective March 1. Taken together the loss of 55 jobs puts a given employer over the limit into “mass layoff” category. In such a case WARN Act notices are required for all of these laid off workers starting 60 days prior to the Feb 1 last day of work for the first group.
Some states do have a stricter standard of 90 day notice. The state’s rule would apply, if relevant.
If you read Lockheed’s press release again, it’s clear that no contracting actions are going to happen for “months” after the January sequestration date. There’s no reasonable basis to believe that anyone will be laid off on February 1 or March 1.
Yup. Hypothetical was my key word there.
The date notice must go out is related to the last working day of the persons being laid off. Notice could be sent earlier with no penalty to the employer. Later notice would subject the employer to penalty.
Hypothetically Limited Ordinance Vehicle Ensemble, Inc is eyeing what will happen due to sequestration. They decide that if sequestration comes to pass they will deal with it later and not lay off anyone in the first 60 days. LOVE, Inc does not need to send out notices.
Hypothetically Widget Arms Receivership, LLC decides they will definitely and permanently completely shut their doors if sequestration comes to pass. WAR, LLC needs to send out notices 60 days in advance of when sequestration might happen. If it turns out sequestration does not occur, then WAR, LLC is not penalized for having sent out notices that did not result in actual lay offs. How their employees might react to working is an entirely different matter.
Between LOVE and WAR is a whole lot of muddled ground.
This part is wrong, I think: in order for it to be true, WAR needs to make the determination in a normal business sense that sequestration is significantly likely to come to pass. If they can make the case that, for reasons related to their professional understanding of the business world (including politics, of course), they considered sequestration to be highly unlikely, then they should be protected as well.
Meanwhile, as I cited above, DOL considers false alarms to be a real problem, and is advising companies not to create unnecessary extra work for state employment assistance programs by sending out unnecessary layoff notices.
I’ll just say that it helps to make hypotheticals have a relationship to the issue being debated. As the Lockheed statement makes clear, the hypothetical concerning Widget Arms does not bear any relation to the current situation, because nothing is going to happen in January that will cause any company to lose any business within the next 60 days.
Where are you getting the idea that the warnings must be, or are supposed to be, issued to the specific employees who might be affected? If company X thinks that it might lay off Y number of workers, they needn’t need to know specifically who those people are. And, given the state of flux they’re looking at for those 60 days and the uncertainty tied to it, I don’t see how they responsibly can know how many might be affected and who they are.
Also, this was a protection put in place for workers. So a broader interpretation makes more sense than your very narrow one. It doesn’t fulfill the spirit of the law if Joe Blow was given the warning and then Joe Blow and Bob Schmow both get laid off. Or if Bob gets laid off instead of Joe. In fact, it exposes the company for litigation.
How do big businesses work in your imagination? Do you think they roll dice or draw straws? You may not be able to see it, but rest assured that decisions about who gets laid off is exactly the kind of thing executives are supposed to be responsible for. If they are really so incompetent that they think they’re going to lay off nine percent of their workforce within the next sixty days and they have no idea who will be picked, then they themselves should be fired not laid off - and right away, so some competent executives can be brought in to handle the layoffs.
Yes, it was. That doesn’t mean it can’t be misused against workers. Fortunately there are safeguards against misuse. Like written guidance from the Department of Labor advising a company how the law works.
How nice. Now do you care to answer the question or not? Here it is again: Where are you getting the idea that the warnings must be, or are supposed to be, issued to the specific employees who might be affected?
Feel free to quote the law or some commentary on it.
Because of common frigg’in sense.
What would you think if a physician told every patient who walked into his examination room, “I’m going to tell this to you straight: you might have lung cancer, and you need to prepare for the long and difficult treatment if you have it.” Well, sure, maybe a few patients do indeed have lung cancer, and people with cancer should be given as much advance notice as possible. That doesn’t mean that it is reasonable to tell everyone that they might have cancer.
Does this sort of reasonableness simply not occur to you?
Hope that satisfies, magellan.
I got it from being aware of what the word “warning” means.
If you’re playing lawyer here, Left Hand of Dorkness posted the law that you were asking for.
[Inigo Montoya] I do not think that word means what you think it means. [/Inigo Montoya]
A warning is advice, not the event (i.e., layoff) itself. “Beware” or “Slippery When Wet” - both warnings - put the warnee on notice, but do not indicate a certain consequence.
For employers, best practice often/usually is to be overinclusive with notices. For example, if a plant may close, depending on a variety of circumstances, some employers will give notice. If a plant will close, but x number or workers will be retained, many employers will give notice to all and then figure out which ones will be retained during the 60-day window. Employees who receive a notice, but do not lose their jobs, are unlikely to sue.
Or you could just look at the comments from LHOD. Notice goes to employees who “may expect” lose jobs, not “will.”
None of this is commentary on Lockheed Martin or how sequestration affects the defense industry.
I won’t argue either way on this issue since I don’t know enough about it. That being said, I’m not so sure it is common sense. My understanding is that the cuts are specific enough to determine the number of people who will be laid off. The companies may not know which contracts will be cut or how deep the cuts will be to their particular company. If I’m right about that (which I am admittedly unsure about) then the companies cannot yet determine how many employees may lose their jobs. Certainly it won’t be all employees but I would guess that all would need to be warned about the possibility.
Obama’s plan mitigates some of these cuts with extra revenue.
I think you’re right, Obama should be running on this. He should be running on the Republican party’s willingness to once again hold America hostage to get what they want. No taxes under any condition whatsoever.
Don’t forget additional warnings every time a CR is about to expire.
Actually they are insisting that they should be able to punch Obama in the face instead.
To be fair, they don’t know which programs are going to get cut. But if the government is going to indemnify those companies that haven’t given the notice, it seems like giving the notice is a bit of a self fulfilling prophecy. It will be cheaper to cut your programs because there is no liability connected with doing so.
As Ravenman has asked, why doesnt the defense industry do this every July 30th?