Duane Morris Class Action Review - 2023 - Report - Page 371
CHAPTER 23
WARN Act Class Actions
I.
Executive Summary
Class actions brought under the Worker Adjustment and Retraining Act of 1988 (the
WARN Act) remain an area of key focus of skilled class action litigators in the plaintiffs’
bar. In recent years, dozens of COVID-19-related lawsuits have been filed under the
WARN Act and state law counterparts, and new class actions are being filed almost
daily. The mass layoffs that arose in the aftermath of the pandemic and related
quarantines spawned countless WARN Act class actions, resulting in courts having
issued several significant decisions in COVID-19-related WARN Act cases, including
rulings that can shape the contours of WARN Act litigation beyond the pandemic.
The WARN Act requires employers to give written notice to affected employees at least
60 days before conducting a plant closing or mass layoff at a single site of employment.
A “plant closing” is the permanent or temporary shutdown of a single site of employment
or one or more facilities or operating units within a single site of employment where the
shutdown results in an “employment loss” during any 30-day period for at least 50 fulltime employees. A “mass layoff” is a reduction in force that is not a plant closing and
results in an employment loss at a single site of employment during any 30-day period
for at least 50 full-time employees who constitute at least 33 percent of the active fulltime employees at that single site of employment or where 500 or more full-time
employees at a single site of employment suffer employment losses during a 30-day
period. The WARN Act regulations require aggregation of employment losses at a
single site of employment during a rolling 90-day period, thereby in essence extending
the statute’s 30-day period to 90 days.
In the wake of the pandemic, the plaintiffs’ class action bar has relied on employers
implementing uniform remote or hybrid work policies among their employees to
maximize the possibility of securing class certification in WARN Act class actions.
In sum, WARN Act class action litigation remains a high-stakes arena. The playbook of
the plaintiffs’ class action bar continues to press the legal envelope in an effort to obtain
substantial settlements and to secure workplace changes with respect to employees
being provided with sufficient notice prior to significant reductions in force (RIFs) taking
effect.
II.
Significant Rulings In WARN Act Class Actions In 2022
In 2022, plaintiffs’ lawyers achieved solid results in their efforts to secure class
certification in WARN Act cases. Overall, plaintiffs won all class certification motions
filed in WARN Act cases. In 2022, the jurisdictions for successful class certification
rulings were clustered in the Third, Fourth, and Eleventh Circuits.
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Duane Morris Class Action Review – 2023
