How Does The WARN Act Apply to Employees and Employers in Texas?


The Worker Adjustment and Retraining Notification Act, commonly known as the WARN Act, is a crucial piece of legislation designed to protect workers, their families, and communities. Enacted in 1988, it requires most employers with 100 or more employees to provide a 60-day advance notice of plant closures and mass layoffs. This gives workers and their families transition time to adjust to the impending loss of employment, seek and obtain other jobs, and enter skill training or retraining programs.

In the landscape of employment law, the WARN Act plays an instrumental role in ensuring that both employees and employers can navigate significant business changes with fairness and transparency. It helps balance the needs of businesses with workers’ rights, creating a more equitable employment environment.

For employees, the act serves as a safety net during times of corporate restructuring or downsizing. On the other hand, for employers, compliance with the WARN Act protects their reputation, maintains employee morale, and mitigates the risk of potential legal disputes.

It’s important for both employees and employers in Texas to familiarize themselves with the specific provisions and requirements outlined in the state’s WARN Act to ensure compliance and protect the rights of employees during plant closings or mass layoffs.

Protecting Texas Employees and Ensuring Workplace Transparency

Understanding and navigating the complexities of the WARN Act can be daunting for both employees and employers. The Galo Law Firm, with its extensive labor and employment law experience, is here to guide you through this process.

Whether you’re an employer needing assistance with compliance or an employee facing a sudden employment transition, The Galo Law Firm is equipped to provide the legal support you need.

Let us use our years of experience to provide you with skilled legal representation. Contact The Galo Law Firm today at 2210-361-8043 for personalized, results-driven representation tailored to your unique needs.

What is the WARN Act?

The Worker Adjustment and Retraining Notification Act was passed in 1988 as an important measure to protect workers’ rights in the event of large-scale layoffs or plant closures. Under the Act, employers must give as much notice as possible to affected employees and the local government, typically through a WARN notice. Where possible, employers should provide at least 60 days’ notice.

The Act’s primary purpose is to ensure employees have ample time to transition between jobs without facing sudden unemployment, financial hardship, or being unprepared for such drastic changes.

The WARN Act was designed to provide affected employees who might be facing employment termination with a buffer period. This period is intended to allow them to seek new employment, pursue further education or training, and make necessary arrangements to adjust to the forthcoming changes. Such measures are especially crucial in cases of mass layoffs or a permanent or temporary shutdown.

The WARN Act applies to your organization if you have over 100 full-time employees and plan to lay off at least 50 people at a single site of employment. This includes situations where an employer’s business circumstances change unexpectedly, or a business actively seeks capital to prevent or postpone a shutdown.

Exceptions To The WARN Act

The WARN Act does include exceptions that allow employers to provide less than 60 days’ notice. These exceptions relate to unforeseeable business circumstances, natural disasters, and the faltering company exception, where the employer was actively seeking capital or business which, if obtained, would have enabled the employer to avoid or postpone the shutdown.

Each of these exceptions has specific requirements, and even when they apply, the employer is still required to give as much notice as is practicable. If the employer does not give timely notice, they must prove that the conditions for the exception have been met.

Texas WARN Act Impact on Employees and Employers

The Texas Worker Adjustment and Retraining Notification (WARN) Act applies to both employees and employers in the state. Here’s an overview of how it impacts each party: 

  • Employees:
    • Advance Notice: The WARN Act in Texas requires covered employers to provide written notice to their employees at least 60 days before a plant closing or mass layoff. This notice allows employees to prepare for potential job loss and seek alternative employment or training opportunities.
    • Severance Pay: In certain cases, employers who fail to provide the required notice may be required to pay severance to affected employees as compensation for the lack of advance warning.
    • Retraining Opportunities: The WARN Act emphasizes retraining and offers resources to help affected employees acquire new skills, find alternative employment, or access necessary support services.
  • Employers:
    • Notice Obligations: Covered employers in Texas must provide written notice to affected employees, employee representatives (such as unions), the Texas Workforce Commission, and the local workforce development board at least 60 days before a plant closing or mass layoff.
    • Coverage Threshold: The WARN Act in Texas applies to employers with 100 or more full-time employees, excluding part-time employees, who have worked for the employer for at least six of the preceding 12 months.
    • Exceptions: Some exceptions exist where employers may be exempt from providing the full 60-day notice, such as unforeseeable business circumstances or faltering companies. However, certain conditions must be met for these exceptions to apply.
    • Retraining Support: Employers are encouraged to cooperate with the Texas Workforce Commission in providing retraining opportunities or access to job placement services for affected employees.

It’s important for both employees and employers in Texas to familiarize themselves with the specific provisions and requirements outlined in the state’s WARN Act to ensure compliance and protect the rights of employees during plant closings or mass layoffs.

Key Components of the WARN Act

The Act has several key provisions that employers must follow, with strict penalties, such as reasonable attorney’s fees and fines, for those who do not comply.

Advance Notice

The advance notice is a written document provided by the employer at least 60 days before a plant closing or mass layoff. This notice is crucial as it safeguards employees from sudden job loss and financial distress.

Employer Serves Written Notice

The crux of the WARN Act is the requirement for the employer to serve written notice. This written notice must be provided to the affected employees, any union representing them, the State Dislocated Worker Unit, and the chief elected official of the unit of local government where the action will occur.

Affected Employees and the Union Representing Affected Employees

Affected employees under the WARN Act may reasonably be expected to experience an employment loss due to a proposed plant closing or mass layoff by their employer. If there is a union representing affected employees, the employer must provide the union with written notice instead of the employees themselves.

Chief Elected Official’s Role

The chief elected official typically refers to the mayor, or the equivalent, of the local government where the employer operates. They must be notified in writing of the employer’s plans for a mass layoff or plant closing.

Permanent or Temporary Shutdown

A permanent or temporary shutdown under the WARN Act refers to a cessation of industrial or commercial operations that affects a specified number of employees and lasts for over six months.

Mass Layoffs

Mass layoff, as defined by the WARN Act, is a reduction in force that does not result from a plant closing and results in employment loss at a single site of employment. The number of affected employees must reach a certain threshold during a specified time period for the event to be categorized as a mass layoff.

Plant Closing

A plant closing refers to 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 if the shutdown results in an employment loss for a specified number of employees during a specified timeframe.

Reasonable Commuting Distance

Under the WARN Act, if a closing or layoff results in the loss of employment for employees at more than one location, but those locations are within a reasonable commuting distance of each other, they are considered a single site of employment.

Compensation For Employees

Under the WARN Act, employers are required to compensate their employees up until the last day of work, which includes any overtime pay they have earned. In addition, employers may be required to pay for medical expenses incurred during the employment loss period if the termination of a health insurance benefit occurred earlier than the date of the actual job loss due to a violation of the WARN Act’s timing requirements.

The WARN Act Process

Understanding its components, its implications for both employers and employees, and the consequences of non-compliance is crucial for any affected business or employee. Here is what the act means in practice:

When and How the WARN Notices Should be Served

In compliance with the WARN Act, employers are required to serve written WARN notices at least 60 days prior to a plant closing or mass layoff event. The notice must be specific, written in understandable language, and should be delivered to the appropriate parties. It’s important to note that as much notice as possible should be given to ensure all parties have adequate time to prepare for the forthcoming changes.

Content of Warn Notices

The written notice under the WARN Act should contain specific information to ensure the parties involved are adequately informed about the plant closing or mass layoff. This includes the name and address of the employment site where the event will occur, a statement as to whether the planned action is expected to be permanent or temporary, and the expected date when the plant closing or mass layoff will commence.

The notice should be delivered directly to the employees or mailed to their last known address or, in some cases, to a union representative.

Preprinted Notice

Some employers may include a preprinted notice regularly in employees’ paychecks or attach it to their pay stubs. Although this method does not fulfill the requirements of a WARN notice, it could serve as a supplementary means to notify employees about their rights under the WARN Act. Nevertheless, it’s vital to understand that this does not replace the requirement for a specific written notice in the event of a mass layoff or plant closing.

Separate and Distinct Actions Required Under the WARN Act

The WARN Act necessitates two separate and distinct actions by the employer. First, the employer must serve written notice to the affected employees or their representative, the State Dislocated Worker Unit, and the local government. Second, the employer must handle the plant closing or mass layoff in a manner that adheres to the provisions of the Act.

These actions may include negotiations with employee representatives or preparing to manage the consequences of non-compliance with the Act, such as reasonable attorney’s fee, and other penalties.

State Dislocated Worker Unit’s Role and Importance

The State Dislocated Worker Units are entities that provide rapid response services to employers and workers affected by layoffs, plant closures, or natural disasters. They work to prevent or minimize the impacts of these events and play a crucial role in providing resources and support to displaced workers following receipt of a WARN notice.

Employee Accepts

If an employee accepts the WARN Act notice and acknowledges the upcoming termination of employment, they would then be considered to have been given notice. The WARN Act does not prevent an employee from seeking or accepting employment elsewhere during the 60-day notice period.

However, if the employee leaves voluntarily or refuses a transfer to a different employment site within a reasonable commuting distance, they may lose entitlement to additional WARN Act benefits or penalties that the employer might otherwise owe.

Other Acts Designed to Protect Employees

There are other laws and regulations which businesses and employees should be aware of. They include but are not limited to:

Job Training Partnership Act

The Job Training Partnership Act (JTPA) was a federal law enacted in the United States in 1982. Although the Workforce Investment Act has since replaced it and then the Workforce Innovation and Opportunity Act, the initial goal of JTPA was to prepare youth and unskilled adults for entry into the labor force and to provide job training to those economically disadvantaged and facing serious barriers to employment.

In the context of the WARN Act, the intention is similar, to prepare dislocated workers, including those affected by mass layoffs or plant closures, for new jobs or to provide them with the necessary skills to find new employment.

National Labor Relations Act and Railway Labor Act

The National Labor Relations Act (NLRA) and the Railway Labor Act (RLA) are two key pieces of labor legislation in the United States. The NLRA protects the rights of employees to act together to address conditions at work, with or without a union, while the RLA is designed to resolve labor disputes in the railroad and airline industries.

While these Acts serve different purposes, their intersection with the WARN Act is rooted in the protection of employees’ rights. If an employer is subject to the WARN Act and also falls within the jurisdiction of either the NLRA or RLA, they must ensure their actions comply with all relevant legislation. This can include but is not limited to, issues such as union negotiations, employee communications, and procedures surrounding layoffs or plant closures.

Implications for Employers

The WARN Act has significant implications for employers, requiring meticulous planning and transparency during major operational changes such as plant closings and mass layoffs.

What an Employer Needs to Demonstrate and Why

Under the WARN Act, an employer must demonstrate that the mass layoff or plant closing is due to business circumstances that were not reasonably foreseeable when the 60-day notice would have been issued.

This could involve providing evidence of the sudden onset of these circumstances and how they directly led to employment losses. Demonstrating this can help an employer justify the shortening of the notification period.

Excluding Part-Time Employees

Under the WARN Act, part-time employees, defined as employees who are employed for an average of fewer than 20 hours per week or have been employed for fewer than 6 of the 12 months preceding the date on which notice is required, are not counted when determining if a mass layoff or plant closing has occurred.

However, they are still entitled to receive notice if they suffer an employment loss. The exclusion of part-time employees in the count can sometimes result in layoffs not meeting the thresholds of the WARN Act, therefore not triggering the notice requirement.

Actively Seeking Capital

In the context of the WARN Act, the term ‘actively seeking capital’ refers to the efforts of an employer to secure funds or business transactions that would allow the employer to avoid or postpone a shutdown.

Under the Act, if an employer can demonstrate that at the time the notice would have been due, they were actively seeking capital or business which, if obtained, would have enabled the employer to avoid or postpone the shutdown, the notice period may be reduced.

Unforeseeable Business Circumstances

Unforeseeable business circumstances refer to sudden, dramatic, and unexpected conditions outside the employer’s control. These can include a significant and unexpected downturn in business or an economic crisis.

The WARN Act acknowledges such circumstances as an exception to the 60-day notice requirement. However, employers must still give as much notice as possible, and the exception doesn’t completely absolve the employers of their responsibilities to provide notice.

Consequences of Non-Compliance

When employers fail to comply with the Act’s requirements, affected employees or their representatives may file lawsuits seeking remedies and damages.

WARN Act litigation typically involves one or more of the following types of claims:

  • Failure to Provide Adequate Notice: Employees may allege that their employer did not provide the required advance notice of a plant closing or mass layoff as mandated by the WARN Act. This may lead to claims for back pay, benefits, and other compensation.
  • Improper Calculation of Affected Employees: The Act has specific criteria for determining the number of employees affected by a plant closing or mass layoff. Disputes may arise if an employer miscalculates the number of affected employees, potentially leading to claims for additional compensation or extended notice periods.
  • Exceptions and Exemptions: Employers may assert that their actions fall within the exceptions or exemptions provided by the WARN Act, such as unforeseeable business circumstances or faltering company exceptions. Employees may challenge these assertions if they believe the exceptions were not properly applied.
  • Retaliation Claims: Employees who assert their rights under the WARN Act are protected from retaliation. If an employer takes adverse actions, such as termination or demotion, against employees for exercising their rights, they may face claims of retaliation.
  • Class Action Lawsuits: In cases where numerous employees are affected by a plant closing or mass layoff, employees may join together to file a class action lawsuit against the employer. This allows for consolidated litigation and can increase the potential damages sought.

Non-compliance with the WARN Act can have significant consequences for employers. Failure to comply with the Act can lead to severe penalties for employers, including civil penalties and potential liability for back wages, benefits, and even reasonable attorney’s fees if employees successfully file a lawsuit. It may result in various outcomes, such as monetary damages, injunctive relief, or court-mandated enforcement of the Act’s requirements. 

Moreover, non-compliance can cause substantial damage to an employer’s reputation, underscoring the importance of understanding and fulfilling their responsibilities under the Act to ensure full compliance. To minimize the risk of litigation, it is crucial for employers to thoroughly understand and adhere to the provisions of the WARN Act.

In the event of non-compliance with the WARN Act’s notice requirements, an employer may be held accountable for civil penalties. This can include the payment of back wages and benefits owed to affected employees, as well as the potential obligation to cover the employees’ legal fees if they prevail in a lawsuit. Consequently, aside from the wages and benefits that should have been earned during the 60-day notice period, the employer may also bear the responsibility of covering the employees’ legal expenses.

How Galo Law Firm Can Help with WARN Act Litigation and Compliance

At The Galo Law Firm, we have a rich history of representing both employers and employees in cases involving the WARN Act. Our extensive experience allows us to understand the complexities and nuances of the law, enabling us to provide comprehensive legal advice and representation. Whether you are an employer needing guidance on compliance or an employee who believes their rights under the WARN Act have been violated, we are equipped to advocate for your interests.

We understand the intricacies of the WARN Act and the implications of non-compliance. Our Texas labor law attorneys can assist employers in understanding their responsibilities under the Act, ensuring they meet the necessary notice requirements, and avoiding costly penalties. In addition, we can help employees understand their rights and protections under the Act, aiding them in taking necessary actions if their employer is non-compliant.

The Galo Law Firm is also experienced in drafting employment contracts. Whether it’s negotiating the terms of a severance package or delineating the scope of a non-compete agreement, we provide expert counsel to protect your interests. Our aim is to ensure the terms are not only legally sound but also equitable, reflecting the interests of all parties involved.

Contact The Galo Law Firm Today for WARN Act Protection

Understanding the intricacies of labor law, including the detailed provisions of the WARN Act, can be a challenging endeavor. That’s where we, The Galo Law Firm, excel as your trusted San Antonio labor law attorneys. With our extensive experience in representing both employees and employers in labor and employment law disputes, we possess the knowledge necessary to guide and advocate for you effectively.

If you are currently facing a situation involving the WARN Act, we strongly advise against navigating these complex waters alone. Allow us to serve as your dedicated guides and advocates, ensuring the protection of your rights and a clear understanding of your responsibilities.

Contact our San Antonio labor law attorneys today at 210-361-8043 to learn more about how our skilled legal services can address your specific needs. Let us alleviate your concerns and provide you with the assurance and support you deserve when dealing with labor law matters.

Covid 19 Notice:

Office open during these times and available via video conference or Skype if necessary.