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Can firing remote workers trigger the WARN Act on a ‘single job site’? – Employment and HR

United States: Can firing remote workers trigger the WARN Act on a ‘single job site’?

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To say that COVID-19 has presented many challenges to employers would certainly be an understatement. One of the changes and challenges that have entered the workforce is the proliferation of work-from-home arrangements. With remote workers, employers have had to change the way they recruit, pay, manage, and even fire employees.

In the last twelve years before the start of the pandemic, remote working grew by 159% and an estimated 36.2 million Americans will be working from home by 2025, according to recent surveys. Although employers may want to consider relevant wage and hour issues and other potential issues (for example, tax issues) when considering remote work arrangements, working from home also presents an issue that is usually overlooked until it needs to be discussed: the WARN Act (Worker Adjustment and Retraining Notification Act). The WARN Act is something that employers generally don’t like to think about. Thinking about a strong reduction in strength is not pleasant. It’s even less pleasant to implement deep downsizing. But with the rise of remote work, employers may want to consider the potential WARN Act implications of such arrangements.

The WARN Act

The WARN Act requires an employer to provide at least sixty days’ notice before closing or mass layoff of a covered factory. The closure of a covered plant occurs with the shutdown of a single job site, or one or more facilities or operating units within a single job site, if the closure results in a loss of employment for a period of thirty days single job site for fifty or more employees, excluding part-time employees.

As a general rule, a collective dismissal occurs when, during a period of thirty days, job losses in a single job site represents (i) at least 33% of active employees, excluding part-time employees, and (ii) at least fifty employees, excluding part-time employees. (When 500 or more employees [excluding part-time employees] affected, the 33% requirement does not apply.) For both definitions, the concept of single job site is crucial. Employees are grouped into single job sites for WARN Act purposes. What is the single job site for teleworkers?

The WARN law and teleworkers

The WARN Act regulations relate to remote workers. In the Frequently Asked Questions (FAQ) tips, the U.S. Department of Labor clarified that “[f]or workers whose primary duties require travel from one point to another, who are remote, or whose primary duties involve work outside of one of the employer’s regular employment sites (for example, railway workers, bus drivers, salespersons), the single job site” for the purposes of the WARN Act will be a single job site

  • “to which they are assigned as home base”;
  • “from where their work is assigned”; Where
  • “to which they report.”

For many employers, this framework can produce bizarre results in today’s (and expected) remote work environment. As a hypothetical example, suppose a company is headquartered at a single job site in Dallas, Texas, where twenty-five full-time employees work. The company has 250 full-time employees working remotely from home across the country. These 250 remote workers are assigned and managed from the Dallas headquarters. If the company downsizes by ninety-five full-time employees – all of whom are working remotely – are the WARN Act requirements triggered, even if none of the affected employees are physically present on Dallas single site? According to the regulations, this event could trigger the WARN law, even though no employee physically present on the single job site concerned is impacted by the reduction in staff.

There are some interesting public policy arguments as to why this shouldn’t trigger the WARN Act, namely that the public policy behind the WARN Act was to warn state and local governments that large numbers of local employees would soon be looking for a job. This notice of termination gives local governments time to help employees look for jobs and lets governments know that there will soon be a large number of people who may soon be collecting unemployment compensation. These public policy goals are not achieved when only remote workers trigger a WARN Act event.

Public policy aside, with the number of remote work agreements set to increase, the WARN Act is one such law that employers might want to add to the list of issues to address when it comes to remote work agreements. remote work.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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