Ques­tion: May an employ­er who is clos­ing a plant pay out employ­ees in lieu of a 60-day Work­er Adjust­ment and Retrain­ing Noti­fi­ca­tion Act (WARN) notice?

Answer: The Work­er Adjust­ment and Retrain­ing Noti­fi­ca­tion Act (WARN) requires a 60-day writ­ten notice and does not con­tain a pro­vi­sion for an alter­nate option. Best prac­tice is to pro­vide the 60-day notice. While we would not rec­om­mend tak­ing the approach of pay­ment in lieu of notice, the Depart­ment of Labor does dis­cuss this sit­u­a­tion on their web­site and a link to this infor­ma­tion is con­tained as a source. Please con­sult with a labor attor­ney for the best advice to man­age this par­tic­u­lar situation.

The dam­ages for vio­lat­ing WARN are back pay and ben­e­fits up to 60 days. Accord­ing to the Depart­ment of Labor, if an employ­er paid these amounts but did not pro­vide 60-day notice, while they have tech­ni­cal­ly vio­lat­ed WARN they have also already paid the WARN dam­ages. Keep in mind that employ­ers should be aware that WARN allows for vol­un­tary pay­ments of wages and ben­e­fits to be off­set against dam­ages award­ed for vio­la­tions of the act. How­ev­er, if these pay­ments were required by anoth­er law, con­tract, or com­pa­ny pol­i­cy or prac­tice, the employ­er can­not use them to off­set WARN damages.

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