Duane Morris Class Action Review - 2023 - Report - Page 374
The WARN Act regulations state that for employees who are “outstationed” (whose
work takes them “from point to point” or “whose primary duties involve work outside any
of the employer’s regular employment sites”), the single site of employment is the
location “to which they are assigned as their home base, from which their work is
assigned, or to which they report.” Courts are split on whether this provision applies only
to mobile employees who travel regularly and do not customarily report to an office
(e.g., truck drivers; salespersons) or also covers employees who telecommute.
Assuming it applies to telecommuters, the regulations’ treatment is difficult to apply in
practice.
In Piron, et al. v. General Dynamics Information Technology Inc., 2022 U.S. Dist. LEXIS
21926 (E.D. Va. Feb. 7, 2022), the court analyzed what constitutes a “single site of
employment” under the WARN Act for employees working remotely in the context of a
motion for class certification under Rule 23(b)(3). The proposed class consisted of
remote employees who had worked under the defendant’s Flexible Work Location
policy. Under this policy, employees could work from a company-provided setting (e.g.,
an office) or from an alternative setting like their home. Employees frequently moved
from location to location to conduct their work duties. When the defendant laid off the
employees, they filed a class action against the defendant under the WARN Act,
asserting they were not given the 60 days’ notice required for “mass layoffs” occurring
at a “single site of employment.” In opposing class certification, the defendant argued
that the putative class could not show that questions of law and fact for the class
“predominate” over the same questions for the individual plaintiffs. Specifically, the
defendant argued that the proposed class could not satisfy the predominance
requirement because the plaintiffs did not work at a “single site of employment” and thus
could not trigger the WARN Act’s notice requirements for mass layoffs. Instead, the
court would have to look at each class member’s individual situation to determine his or
her place of employment.
The court began its analysis by interpreting what it considered the relevant WARN Act
regulation. That regulation, which is usually used for people without a fixed work
location (e.g., bus drivers; railroad workers), provides that a single site of employment
for those who travel from location to location is: (i) their home base, (ii) the location from
which their work is assigned, or (iii) the location to which they report. While not deciding
how the regulation applies in this case, the court and the parties agreed that the
regulation should guide the analysis regarding the place of employment for remote
workers under the WARN Act. The court rejected the defendant’s predominance
argument, and ruled that the class could be certified under Rule 23(b)(3). The court
emphasized that the remote-work policy applied to all employees, and this policy would
guide its determination of what constituted the site of employment for each
employee. Thus, the critical inquiry - the application of the remote work policy and its
application to the work arrangements of the employees - would be common to all
potential class members. This case illustrates one potential pitfall that can arise with the
shift from an office workforce to a remote or hybrid workforce - the possibility of layoffs
to a remote work force triggering WARN Act liability. It also highlights how the use of a
common remote work policy for remote workers can render a class of workers
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Duane Morris Class Action Review – 2023
