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FOREWARN is Foreboding

Senator Sherrod Brown (D-Ohio) and Representative George Miller (D-California) have introduced joint legislation (S. 1374 and H.R. 3042) to strengthen the WARN Act called the Federal Oversight, Reform and Enforcement of the WARN Act (“FOREWARN”).  Sen. Brown and Rep. Miller state loopholes, exceptions and weak enforcement have undermined the WARN Act.  They contend that WARN requires too few employers to give too little notice to too few workers, and it allows too many employers to flout the law with impunity.

The WARN Act requires employers to give workers and the surrounding community a 60-day advance notice of mass layoffs.  The WARN Act covers layoffs of 50 or more workers in firms of 100 or more employees.  The purpose was to provide workers a head start in preparing to find another job and communities a chance to brace for the economic impact. 

In a nutshell, FOREWARN would increase the 60-day notice required from employers to 90-day notice; apply to employers of 75 or more workers as opposed to 100 or more workers; and lower the number of employees laid off for the WARN Act to apply from 50 or more employees to 25 or more employees.  FOREWARN also would give the U.S. Department of Labor the authority to enforce the WARN Act and increase penalties for violation to double back pay.

As FOREWARN evidences, it is my belief is that more and more federal laws will be amended to apply workers of smaller businesses.  Congress has been reviewing legislation to move the threshold of employees necessary for the FMLA to apply from 50 or more employees to 25 employees.  Now, the same analysis is being undertaken with regard to the WARN Act.  Moreover, the administration and Congress are intent on changing the focus from educating employers and employees to enforcement.  Employers, FOREWARN is foreboding!

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