California Revises Guidance on Conditional Suspension of WARN Act Notice Requirements

COVID-19 Update

California employers faced with difficult layoff decisions were provided additional guidance by the Department of Industrial Relations (DIR) regarding the state’s new notice requirements for mass layoffs. As previously reported, on March 17, 2020, California’s Governor Gavin Newsom signed Executive Order N-31-20, relieving California employers of the 60-day notice requirement mandated by California’s Worker Adjustment and Retraining Notification (WARN) Act for implementing mass layoffs, relocations or terminations. The DIR provides guidance on how to qualify for the amended notice requirements, what must be included in the new notices and how they should be sent out.

The DIR clarifies that the Executive Order does not eliminate California WARN Act’s written notice requirement. Rather, it suspends the strict 60-day notice requirement and instead requires employers to give as much notice as is “practicable” and, at the time such notice is given, provide a brief statement of the basis for reducing the notification period. In accordance with the California WARN Act, covered establishments are still required to provide written notice prior to one of the following events: (1) a mass layoff (a layoff during any 30-day period of 50 or more employees); (2) a relocation (the removal of all or substantially all of the industrial or commercial operations in a covered establishment to a different location 100 miles or more away); or (3) a termination (the cessation or substantial cessation of industrial or commercial operations in a covered establishment) (Lab. Code § 1400(d)-(f)).

The DIR further clarifies that to rely on the Executive Order’s relief from the 60-day advance notice requirement, an employer must satisfy three conditions.

  • First, the mass layoff, relocation or termination must be caused by COVID-19-related “business circumstances that were not reasonably foreseeable at the time that notice would have been required.”
  • Second, the employer must provide written notice to (1) each employee affected by the mass layoff, relocation or termination; and (2) the Employment Development Department (EDD), the Local Workforce Development Board (LWDB), and the chief elected official of each city and county government within which the termination, relocation or mass layoff occurs.
  • Third, the employer must give as much notice in advance as is “practicable” (i.e., reasonably possible), and the contents of such written notice must meet the following requirements:
  1. It must include a brief statement as to why the 60-day notification period could not be met.
  2. For notice sent to each affected employee, it must also include the following:

    a. A statement as to whether the planned action is expected to be permanent or temporary, and if the entire location is to be closed, a statement to that effect;

    b. The expected date when the plant closing or mass layoff will commence and the expected date when the individual employee will be separated;

    c. An indication as to whether bumping rights exist;

    d. The name and telephone number of a company official to contact for further information;

    e. The following statement: “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”; and

    f. Any additional information useful to the employee, such as whether the planned action is expected to be temporary and the estimated duration, if known.
  3. For notices separately provided to the EDD, the LWDB and chief elected officials, notices must also include:

    a. Name and address of the employment site where the closing or mass layoff will occur;

    b. Name and phone number of a company official to contact for further information;

    c. Statement as to whether the planned action is expected to be permanent or temporary, and if the entire location is to be closed, a statement to that effect;

    d. Expected date of the first separation, and the anticipated schedule for subsequent separations;

    e. Job titles of positions to be affected, and the number of employees to be laid off in each job classification;

    f. In the case of layoffs occurring at multiple locations, a breakdown of the number and job titles of affected employees at each location;

    g. An indication as to whether bumping rights exist;

    h. Name of each union representing affected employees, if any;

    i. Name and address of the chief elected officer of each union, if applicable; and

    j. Any additional information useful to the employees, such as whether the planned action is expected to be temporary and the estimated duration, if known.

The DIR also specifies that employers may send written notices to affected employees via any reasonable method of delivery that ensures acceptable receipt. It further notes that employers should send notice to the EDD via an email to eddwarnnotice@edd.ca.gov, which includes (1) the notice (as an attachment or within the body of the email); (2) contact information for an employer representative; and (3) the employer’s name in the subject line. Lastly, to send notice to the LWDB and chief elected officials, employers should contact their LWDB (via county websites) for assistance.

The Executive Order applies to the duration of the period California is in a state of emergency, which started on March 4, 2020. Additional information and resources for employers on addressing the COVID-19 pandemic are available at labor.ca.gov/coronavirus2019.       

For regular updates on the major challenges companies are facing, please visit our COVID-19 resources page and subscribe for timely updates in your inbox here. 

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