Labor & Employment Law Daily Jackson Lewis attorneys discuss WARN Act compliance challenges in the wake of COVID-19 resurgence
Thursday, November 5, 2020

Jackson Lewis attorneys discuss WARN Act compliance challenges in the wake of COVID-19 resurgence

By Marjorie Johnson, J.D.

As employers continue to make difficult staffing decisions in response to the ongoing pandemic, Jackson Lewis attorneys in the firm’s Class Actions and Complex Litigation Practice Group discuss the class action risks that arise from federal and state WARN Acts.

When the unprecedented COVID-19 pandemic reached the United States earlier this year, employers had little warning of the catastrophic disruptions to the nation’s economy and workplaces. Facing an economic downturn, statewide stay-at-home orders, and other restrictions, many employers acted quickly, making difficult decisions to abruptly close worksites or lay off large segments of their workers.

Furloughs. Many believed the U.S. economy would ramp up again after only a short freeze, allowing businesses to cautiously reopen and call back employees. As a result, many organizations elected to “furlough” employees instead of terminating them. Under the federal Worker Adjustment and Retraining Notification (WARN) Act and many of its state counterparts, if the shutdowns or furloughs lasted less than six months and employees were recalled, the statutory notice requirements would not be triggered.

But months have passed since COVID-19 first reared its ugly head, and there is no clear end in sight. A number of medical experts predict a potentially devastating resurgence, inevitably leading to further economic impacts. If these predictions come to fruition, businesses that implemented what they intended to be temporary measures will have to revisit these, facing the grim reality that business will not be “as usual” anytime soon. Others that were able to maintain their workforces in the initial months may be abruptly forced to implement shutdowns or layoffs as the impact of the pandemic wears on.

In this issue of the Class Action Trends Report, attorneys in the Jackson Lewis Class Actions and Complex Litigation Practice Group take a deeper dive into the compliance challenges and class action litigation risks presented by the WARN Act and its state-law counterparts, and how best to minimize them. Jackson Lewis attorneys also look at the wildly varying standards for conditional certification of Fair Labor Standards Act collective actions and argue for a more uniform standard — one more akin to the level of rigor required by courts in certifying a class under Rule 23 of the Federal Rules of Civil Procedure.

Jackson Lewis Fall 2020 Class Action Trends Report .

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