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Delaware Workplace Adjustment and Retraining Notification Act (WARN)

09/01/18

Author: ADP Admin/Thursday, August 30, 2018/Categories: State Compliance Update, Delaware

Overview: Businesses that employ 100 or more employees, excluding part-time employees, or 100 or more employees that work in the aggregate at least 2,000 hours per week, must provide at least 60 days’ written notice before the business orders a mass layoff, plant closing or relocation if it will cause an employment loss. These requirements do not apply to federal, state and local governments, including school districts and charter schools.

Effective Date: January 7, 2019

Details:
The Delaware Worker Adjustment and Retraining Notification Act (“Delaware WARN”) was signed into law on July 11, 2018. The legislation, H.B. 409, requires businesses that employ 100 or more employees, excluding part-time employees, or 100 or more employees that work in the aggregate at least 2,000 hours per week, to provide at least 60 days’ written notice before the business orders a mass layoff, plant closing or relocation if it will cause an employment loss. These requirements do not apply to federal, state and local governments, including school districts and charter schools.

Mass layoffs. A "mass layoff" under the measure is a reduction in workforce, during any 30-day period, that is not the result of a plant closing and that results in the loss of 500 or more employees; or an employment loss at a single employment site of 50 or more employees if it is 33% of the employer’s total workforce at the site (excluding part-time employees).

Plant closings. A "plant closing" is defined as 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 at the single site of employment during any 30-day period for 50 or more employees (excluding part-time employees).

Relocation. The removal of all or substantially all of the employer’s industrial or commercial operations to a different location 50 or more miles away.

Employment Loss.
  • an employment termination, other than for cause, voluntary departure, or retirement;
  • a mass layoff exceeding six months; or
  • a reduction of work hours greater than 50% during each month of a consecutive six-month period.
An employment loss does not result from a mass layoff or plant closing where the employer offers to transfer the employees to a different employment site within a reasonable commuting distance (and with no more than a six-month employment break). There is also no employment loss with a transfer offer, regardless of distance, if the employee accepts it within 30 days of the latter of the offer, mass layoff or plant closing (and with no more than a six-month employment break).

Job losses within any 90-day period will count toward Delaware WARN threshold levels unless the employer demonstrates that the employment losses during the 90-day period are the result of separate and distinct actions and causes.

Sale of Business. In the case of a sale of part or all of an employer's business, the seller is responsible for providing notice of the triggering event up to and including the effective date of the sale. After the effective date of the sale, the purchaser is responsible for providing notice. Notwithstanding any other provision, any person who is an employee of the seller as of the effective date of the sale will be considered an employee of the purchaser immediately after the effective date of the sale.

Written notice. Employers may not order a mass layoff, plant closing or relocation that causes an employment loss unless the employer gives written notice at least 60 days in advance of the order’s effect to the affected employees and their representatives, the Delaware Department of Labor Division of Employment and Training, federal WARN Act Administrator and the Delaware Workforce Development Board established pursuant to the federal Workforce Innovation Opportunity Act for the locality in which the mass layoff, plant closing or relocation will occur.

The required notice must include the elements required by the federal Worker Adjustment and Retraining Notification Act (federal WARN). It must include the name, job title, home address, telephone number and email of each planned dislocated worker. The notice must also include general information regarding any payouts, severance packages, job relocation opportunities and retirement options offered to the dislocated workers, as well as whether the employer is self-insured under the Delaware workers’ compensation statutes.

Exceptions. The legislation provides exceptions to the notice requirements in the following circumstances:
  • if a triggering event is necessitated by a physical calamity or an act of terrorism or war;
  • if, at the time the notice would have been required, the employer was actively seeking capital or business that would enable the employer to avoid or postpone the relocation or termination and the employer had a reasonable, good faith belief that giving notice would keep it from obtaining the needed capital or business;
  • if the mass layoff or plant closing is caused by business circumstances that are not reasonably foreseeable (examples include a principal client’s sudden, unexpected termination of a major contract, a strike at a major supplier, an unexpected dramatic major economic downtown or a government shutdown of the site without prior notice);
  • if the plant closing is the result of a particular project and the employees knew their employment was limited to the duration of the project;
  • if the mass layoff or plant closing is due to a natural disaster, such as a flood, earthquake, or drought;
  • if the mass layoff or plant closing is due to a lockout or strike.
Employers unable to provide the notice otherwise required in a timely fashion due to one of these instances is required to "provide as much notice as is practicable and at that time shall provide a brief statement of the basis for reducing the notification period." Failure to provide such notice in as timely a manner as possible is considered a violation.

Action Required: Large employers in Delaware should timely review notice requirements prior to any mass layoffs, plant closing(s), and/or relocations.

As always, please be sure to contact your Human Resources Business Partner if you have any questions.

This content provides practical information concerning the subject matter covered and is provided with the understanding that ADP is not rendering legal advice.

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