Duane Morris Class Action Review - 2023 - Report - Page 373
law requires plaintiffs to establish the elements underlying each aspect of Rule 23. This
type of defense strategy challenges the proof offered in support of the class certification
motion.
One case from 2022 analyzing Rule 23 in the context of a WARN Act class action is
Jones, et al. v. Scribe Opco, Inc., 2022 U.S. Dist. LEXIS 187514 (M.D. Fla. Oct. 13,
2022). The plaintiff filed a class action alleging that the defendant, his former employer,
violated the WARN Act when he and other employees, after being notified, were
furloughed due to the COVID-19 pandemic. The plaintiff claimed that the defendant
failed to provide a follow-up notice once it became reasonably foreseeable that the
layoff would exceed six months. Id. at *3. The plaintiff moved for class certification
under Rule 23, and the court granted the motion. The court determined that the putative
class of 344 individuals met Rule 23’s numerosity requirement. The court further ruled
that although the determination of each class member’s damages would be
individualized based on their rate of pay, all class members’ claims involved the same
legal questions and answers. The court held that the plaintiff’s claims were typical to
those of the putative class members and that the plaintiff and his counsel met the
adequacy requirement because the plaintiff suffered from the same alleged WARN Act
violation, and his counsel was experienced in class action litigation. The court ruled that
despite the existence of certain individualized questions for class members, the
common questions underlying the elements of the WARN Act claim, and the
defendant’s affirmative defenses, predominated. Finally, the court concluded that the
plaintiff met the superiority requirement because of the small individual claim values, the
fact that no other individual suits had been filed against the defendant, and the fact that
resolving the common liability question in a class action was superior to having dozens
of potential class members file separate WARN Act lawsuits.
Apart from WARN Act litigation regarding the elements underlying each aspect of Rule
23, WARN Act class actions brought in the wake of the COVID-19 pandemic have
raised discrete issues regarding interpretation of the statute – issues that will likely
impact litigation in the future and extend beyond the context of the pandemic.
Specifically, WARN Act decisions in 2022 have addressed: (i) what constitutes a “single
site of employment” under the WARN Act for remote or hybrid employees; (ii) whether
the COVID-19 pandemic qualifies as a natural disaster under the WARN Act’s “natural
disaster” exception; and (iii) whether the COVID-19 pandemic qualifies as an
unforeseeable business circumstance under the WARN Act’s “unforeseeable business
circumstances” exception.
B.
Rulings On What Constitutes A “Single Site Of Employment” Under The
WARN Act For Remote Or Hybrid Employees
The question as to what the “single site of employment” is for employees who work from
home has become increasingly salient with the dramatic rise of remote work spurred by
pandemic-driven quarantines — a trend that may well become a permanent fixture in
the modern workplace.
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© Duane Morris LLP 2023
Duane Morris Class Action Review – 2023
