Section 205 – Notification of Office Closings or Mass Layoffs
Section 205 of the Congressional Accountability Act (CAA) applies certain rights and protections of the Worker Adjustment and Retraining Notification Act (WARN) to covered employees. This section requires certain covered employing offices to provide notice 60 days in advance of an office closing or a mass layoff. The notice must be provided to either the affected employees or to their representatives (for example, a labor union). Congress has adopted substantive WARN Act regulations which can be found among the substantive regulations of the Office of Compliance (“Office of Compliance Regulations”).
1. Coverage
Employing offices are covered by the WARN provisions of the CAA only if they meet these size thresholds:
- 100 or more employees, excluding "part-time employees;" or
- 100 or more employees, including "part-time employees," who in the aggregate work at least 4,000 hours per week, exclusive of overtime.
“Part time” employees are employees who work an average of less than 20 hours per week or who worked less than 6 months in the last 12 months (for example, seasonal employees).
The covered employees and employing offices subject generally to the CAA are described in the “Covered Employees” section of the CAA Handbook and the Office of Compliance web site (www.compliance.gov).
2. What Events Trigger the Notice Requirement?
A covered employing office's obligation to give notice is triggered by an “ office closing” or a “mass layoff” that is large enough to meet thresholds stated in the law and regulations.
- Office closing: The permanent or temporary shutdown of an employment site (or one or more facilities or operating units within an employment site) if the shutdown results in an "employment loss" (defined later) to 50 or more employees (other than part-time employees) during any 30-day period.
- Mass Layoff: A reduction in force (other than an office closing) that results in an "employment loss" at an employment site during any 30 day period for at least 50 employees, who make up at least 33 percent of the active employees (other than part-time employees). Where 500 or more employees (excluding part-time employees) are affected, the 33 percent requirement does not apply.
The difference is that an “ office closing” involves shutdown of one or more distinct units within a single site or of the entire site, while a “ mass layoff” involves employment loss regardless of whether one or more units are shut down.
Subject to certain exceptions, an “ employment loss” generally means:
- an employment termination (other than for cause, or a voluntary departure, or a retirement); or
- a layoff exceeding 6 months; or
- a reduction in an employee's work hours of more than 50 percent in each month of any 6-month period.
Even if employment losses of two or more groups of workers at a single site of employment during any 30-day period are below the thresholds to trigger notice requirements, notice may nevertheless be required if the employment losses during any 90-day period, added together, reach the threshold.
3. Privatization or Sale of Operations
In the case of the privatization or sale of part or all of an employing office's operations, the employing office is responsible for providing notice of any office closing or mass layoff that takes place up to and including the effective date (time) of the privatization or sale. The contractor or buyer is responsible for providing any required notice of any office closing or mass layoff that takes place after the privatization or sale.
4. Notice Requirements
a. Recipients
The employing office must serve written notice upon the collective bargaining representatives of "affected employees" or, if there are no representatives, upon the affected employees themselves. An affected employee is a covered employee who is reasonably expected to experience an employment loss as a consequence of a proposed office closing or mass layoff of their employing office.
Although no particular form of notice is required, the notice must be in writing, specific and must contain each of the elements required in Office of Compliance Regulations.
If the affected employees do not have a representative, notice must be written in language understandable to the employees and is to contain:
- A statement as to whether the planned action is expected to be permanent or temporary and, if the entire office is to be closed, a statement to that effect
- The expected date when the office closing or mass layoff will commence and the expected date when the individual employee will be separated
- An indication whether or not bumping rights exist
- The name and telephone number of an employing office official to contact for further information
- Any additional information useful to the employees, such as information on available dislocated worker assistance, and, if the planned action is expected to be temporary, the estimated duration, if known
If notice is to be given to each representative of affected employees, the notice is required to contain:
- The name and address of the employment site where the office closing or mass layoff will occur, and the name and telephone number of an employing office official to contact for further information
- A statement as to whether the planned action is expected to be permanent or temporary and, if the entire office is to be closed, a statement to that effect
- The expected date of the first separation and the anticipated schedule for making separations
- The job titles of positions to be affected and the names of the workers currently holding affected jobs
- Other information the employing office may deem necessary
c. Notice period and exceptions
With limited exceptions, notice must be timed to reach the required parties at least 60 days before an office closing or a mass layoff.
Office of Compliance Regulations permit two circumstances under which the notification period may be reduced to less than 60 days:
- Business circumstances that were not reasonably foreseeable at the time the 60 day notice would have been required
- A natural disaster, such as an earthquake, flood, or drought
The employing office must prove that the conditions for the exception have been met. If an exception is applicable, the employing office must give as much notice as is practicable, together with a brief statement of the reason for reducing the notification period.
Additional notice is required when the date or schedule of dates of a planned office closing or mass layoff is extended beyond the date or the ending date of any fourteen day period announced in the original notice.
5. Exemption for Temporary Employment
An employing office does not need to give notice if the office closing is the closing of a temporary facility or if the closing or layoff is the result of the completion of a particular project or undertaking. This exemption applies only if the affected employees were hired with the understanding that their employment was limited to the duration of the facility or the project or undertaking.
6. Intimidation or Reprisal
Intimidation, reprisal, or discrimination against a covered employee for opposing practices or for initiating or participating in a proceeding is prohibited.
7. Remedies
In case of a violation, the covered employee may recover back pay for each day of the violation, and benefits under an employee benefits plan, for each day of violation for up to 60 days (but in no event more than one-half the number of days the employee was employed by the employing office).
Offsets to the amount of liability are allowed for certain payments made by the employing office to the employee, including wages or benefits for the period of violation, and any voluntary and unconditional payment. Furthermore, reductions in the employing office's liability may be allowed where the notice was made in good faith and the employer had reasonable grounds for believing that it was not violating applicable WARN requirements under the CAA.
The provisions of WARN, made applicable by the CAA, do not require an employing office or contractor to hire or reinstate a covered employee who was not given required notice.
