Should Employers Notify in Writing or Not?

There is no magic in crafting layoff notices—if written notices are even required—according to Ron Taylor, an attorney with Venable in Baltimore. "The decision-maker should ask herself or himself, 'How would I react if I received this?' If she or he would be offended, the message needs to be rewritten."

Notice required by the Worker Adjustment and Retraining Notification (WARN) Act is meant to satisfy specific legal requirements and must contain specific legal language.

"This notice should never be relied upon for the hard job of managing the human emotional toll that often accompanies a job loss," said David Froiland, an attorney with Ogletree Deakins in Milwaukee. "With the right communications happening in other written and oral communications, an antiseptic WARN Act notice is common and appropriate."

But even WARN Act notices may be worded in a way to soften the blow, other legal experts say.

Moreover, employers often believe they have a WARN notice obligation when they do not, said Kerry Notestine, an attorney with Littler in Houston. Some employers that are required to provide WARN notices pay employees in lieu of giving notice of an impending layoff, either because they forgot about the WARN Act until it was too late to provide timely notice or for strategic reasons—usually out of concern that notified employees will disengage or damage or steal property.

The notice should succinctly and clearly explain the reasons for the layoffs; be respectful; avoid blame; and inform employees about available benefits (e.g., COBRA and unemployment benefits), severance pay—if there is any—and job-transition assistance.

Susan Bilbro, an attorney with Bass, Berry & Sims in Nashville, Tenn., recommended that employers use the COBRA model election notice to ensure fulfillment of COBRA notice obligations.

[SHRM members-only how-to guide: How to Administer COBRA]

WARN Act Do's and Don'ts

"It is important to know the applicable thresholds for WARN Act coverage," said James McDonald Jr., an attorney with Fisher Phillips in Irvine, Calif. The federal WARN Act covers employers of 100 or more full-time employees and layoffs of 500 or more employees, or of 50-499 employees if they constituted at least one-third of the workforce.

Several states—including California, Hawaii, Illinois, Iowa, Maine, Massachusetts, Minnesota, New Hampshire, New Jersey, New York, Pennsylvania, Tennessee and Wisconsin—have their own WARN laws that cover smaller employers or smaller layoffs, or require more notice than the federal WARN Act.

[SHRM members-only HR Q&A: What Are the Requirements Under the California WARN Act?]

New York, for example, requires 90 days of notice instead of the 60 days required by the federal WARN Act.

 "New Jersey WARN appears to require that all persons impacted by planned, sequential RIFs receive the WARN notice when the notices go out for the first group," he added. "This is almost impossible to plan for, but the New Jersey statute has not been tested in court on this point."

"Federal WARN and most [state] mini-WARN Acts require specific language, some of which is archaic, such as 'No bumping rights apply' or hard to swallow, such as 'Your employment is eliminated permanently on X date,' " said Stephen Woods, an attorney with Ogletree Deakins in Greenville, S.C.

He said there's no way around having to include the required legalese, but the rest of the notice language can be straightforward and helpful without being insincere or disingenuous.

"Also, WARN notices do not have to mention 'WARN' expressly," Woods said. "I never include express WARN references because we may end up actually not triggering WARN."

Similarly, Hathaway said, "My WARN notices simply do not reference the federal statute. I try to make it sound less legalistic, but it hits all the points required by the notice."

What to Do If You Miss the WARN Window

"Too often a company is implementing a layoff when someone thinks at the last second, 'What about WARN?' " Hathaway said, "and too often it is too late to give the notice."

In that situation, he recommends that, rather than declare layoffs, the employer put the employees on paid leave with 60 days' notice that the layoff will occur at the end of the paid-leave period. "That eliminates claims for overtime that would have been part of WARN damages, and it also compensates hourly employees to the satisfaction of all circuit courts," he said.

Sometimes employers choose not to send WARN notices but to pay workers instead to avoid employees' disengaging from work between the date of notice and the layoff date. This choice might also be made if there are concerns about workers who are selected for layoff damaging property or taking intellectual property, said Lynne Anne Anderson, an attorney with Drinker Biddle in Florham Park, N.J.

If the WARN Act notice requirement is triggered, notice must be provided not only to affected employees or their union, but also to the applicable state dislocated worker unit and the appropriate unit of local government.

"Employers should also remember that additional notice must be provided if changes to the layoff plan occur after the initial notice is provided," said Molly Batsch, an attorney with Greensfelder in St. Louis.

Even after a hurricane, WARN Act notice may be required, said Joyce Chastain, SHRM-SCP, president of Chastain Consulting in Tallahassee, Fla. In these cases, the notice will be required after the closing and not subject to the 60-day-notice rule. The employer may then send a notice to the employee's last known address, even if it is expected that the home is destroyed. If the worksite is destroyed and personnel records are lost, the employer may post the notice of the closing at the worksite or in the local newspaper, noting that personal notices weren't possible because of the loss of personnel records. These requirements were a surprise to many employers in the Panama City, Fla., area following Hurricane Michael last year, Chastain said.

PART 4: Have a Plan for Saying Goodbye